Exhibit 10.130
LOAN AGREEMENT
This agreement between BANK ONE, TEXAS, NATIONAL ASSOCIATION, and its successors
and assigns (the "Bank"), whose address is 0000 Xxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxx 00000, and EAGER BEAVER CAR WASH, INC., a Florida corporation
(the "Borrower"), whose address is 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx Xxxxxx,
Xxx Xxxxxx 00000, is effective the 28th day of November, 2000.
1. Credit Facilities.
1.1 Scope. This agreement governs Facility A, and, unless
otherwise hereafter agreed to in writing by Bank and Borrower
or prohibited by applicable law, governs all of the
Liabilities.
1.2 Facility A (Term Loan). The Bank agrees to extend credit to
the Borrower in the form of a term loan (the "Term Loan") in
the principal sum of Six Million, Seven Hundred Fifty-Four
Thousand, Four Hundred and No/100 Dollars ($6,754,400.00)
("Facility A"), bearing interest and payable as set forth in
the Promissory Note executed concurrently with this agreement,
and with any renewals, modifications or extensions thereof.
The proceeds of the Term Loan shall be used for the purpose of
refinancing existing debt associated with the purchase of
Eager Beaver Car Wash and Red Baron Truck Wash, and for
financing the purchase of Beneva Car Wash, and for working
capital, the security for which Term Loan and is described in
Exhibit "A" attached hereto and incorporated herein.
1.3 Liabilities. The term "Liabilities" in this agreement means
all obligations, indebtedness and liabilities of the Borrower,
to the Bank or to BANK ONE CORPORATION, or any of its
subsidiaries or affiliates or their successors, now existing
or later arising, including, without limitation, all loans,
advances, interest, costs, overdraft indebtedness, credit card
indebtedness, lease obligations, or obligations relating to
any Rate Management Transaction, all monetary obligations
incurred or accrued during the pendency of any bankruptcy,
insolvency, receivership or other similar proceedings,
regardless of whether allowed or allowable in such proceeding,
and all renewals, extensions, modifications, consolidations or
substitutions of any foregoing, whether the Borrower may be
liable jointly with others or individually liable as a debtor,
maker, co-maker, drawer, endorser, guarantor, surety or
otherwise, and whether voluntarily or involuntarily incurred,
due or not due, absolute or contingent, direct or indirect,
liquidated or unliquidated. The term "Rate Management
Transaction" in this agreement means any transaction
(including an agreement with respect thereto) now existing or
hereafter entered into among the Borrower, the Bank or BANK
ONE CORPORATION, or any of its subsidiaries or affiliates or
their successors, which is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward
transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar
transaction (including any option with respect to any of these
transactions) or any combination thereof, whether linked to
one or more interest rates, foreign currencies, commodity
prices, equity prices or other financial measures.
1.4 Notes. The term "Notes" in this agreement means the Promissory
Note described in Subsection 1.2 above and all promissory
notes, instruments and/or contracts evidencing the terms and
conditions of the Liabilities.
1.5 Credit Facilities. The term "Credit Facilities" in this
agreement means all extensions of credit from Bank to
Borrower, now existing or hereafter arising, including but not
limited to, those described in this Section 1.
2. Conditions Precedent.
2.1 Conditions Precedent to Term Loan. Before disbursement of the
proceeds of the Term Loan, the Borrower shall have delivered
to the Bank, in form and substance satisfactory to the Bank:
A. Loan Documents. The Note evidencing the Term Loan,
and as applicable, the security agreements, the
pledge agreements, financing statements, mortgages or
deeds of trust, the guaranties, the subordination
agreements, and any other loan documents which the
Bank may require to give effect to the transaction
described in this agreement (together with this
agreement, the "Loan Documents").
B. Evidence of Due Organization and Good Standing.
Evidence, satisfactory to the Bank, of the due
organization and good standing of the Borrower and
every other business entity that is a party to this
agreement or any other loan document required by this
agreement.
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C. Evidence of Authority to Enter into Loan Documents.
Evidence that (i) each party to this agreement and
any other loan document required by this agreement is
authorized to enter into the transactions described
in this agreement and the other loan documents, and
(ii) the person signing on behalf of each such party
is authorized to do so.
D. Environmental Indemnity. An Environmental Indemnity
Agreement on the Bank's form and as of the date of
this agreement.
2.2 Conditions Precedent to Each Extension of Credit. Before any
extension of credit governed by this agreement, whether by
disbursement of a loan, issuance of a letter of credit or
otherwise, the following conditions must be satisfied:
A. Representations. The representations in Section 5 of
this agreement are true on and as of the date of the
extension of credit;
B. No Event of Default. No default has occurred in any
provision of this agreement and is continuing or
would result from, the extension of credit;
C. Additional Approvals, Opinions, and Documents. The
Bank has received any other approvals, opinions and
documents as it may reasonably request; and
D. Cross Collateralization and Cross Default. The loan
documents securing each of the Credit Facilities
shall contain cross default and cross
collateralization provisions for any and all of the
other Credit Facilities by and between Borrower and
Bank and Guarantor and Bank and between Borrower and
any affiliates or subsidiaries of Bank and Guarantor
and any affiliates or subsidiaries of Bank.
3. Affirmative Covenants. The Borrower and Guarantor shall:
3.1 Insurance. Maintain insurance with financially sound and
reputable insurers covering its properties and business
against those casualties and contingencies and in the types
and amounts as are in accordance with sound business and
industry practices, and as required by any of the Loan
Documents.
3.2 Existence. Maintain its existence and business operations as
presently in effect in accordance with all applicable laws and
regulations, pay its debts and obligations when due under
normal terms, and pay on or before their due date, all taxes,
assessments, fees and other governmental monetary obligations,
except as they may be contested in good faith if they have
been properly reflected on its books and, at the Bank's
request, adequate funds or security has been pledged to insure
payment.
3.3. Financial Records. Maintain proper books and records of
account in accordance with generally accepted accounting
principles, and consistent with financial statements
previously submitted to the Bank.
3.4 Inspection. Permit the Bank to inspect and copy the Borrower's
and Guarantor's business records related to it at such times
and at such intervals as the Bank may reasonably require, and
to discuss the Borrower's and Guarantor's business, operations
and financial condition with the Borrower's and Guarantor's
officers and accountants.
3.5. Management. Maintain the current management of Borrower and
Guarantor. A change in the management of Borrower or Guarantor
must have the prior written consent of Bank, however, such
consent shall not be unreasonably withheld, provided that
Borrower's or Guarantor's new management is as qualified as
existing management.
3.6 Financial Reports. Furnish, or cause to be furnished, to the
Bank whatever information, books and records the Bank may
reasonably request, including at a minimum:
Borrower. Borrower will deliver to Bank within forty-five (45)
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days after the end of each fiscal quarter of Borrower a
financial statement or balance sheet and income statement of
Borrower as of the end of such period. Borrower will deliver
to Bank, within one hundred twenty (120) days after the close
of the fiscal year a financial statement or balance sheet and
income statement of such Borrower as of the end of such fiscal
year. Such financial statements, balance sheets and income
statements shall be in form, scope and detail satisfactory to
Bank and shall be prepared by Borrower or representative of
Borrower acceptable to Bank. If, and as often as, reasonably
requested by Bank, Borrower will make further reports of
operations in such form as Bank prescribes, setting out full
data requested by Bank.
Borrower further covenants and agrees with Bank that, while
this Loan Agreement is in effect, within forty-five (45) days
after the end of each fiscal quarter of Borrower, and within
one hundred twenty (120) days after the end of each fiscal
year of Borrower, Borrower shall furnish to Bank a certificate
executed by Borrower's chief financial officer, or other
officer or person acceptable to Bank, (a) certifying that the
representations and warranties set forth in this Loan
Agreement are true and correct
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as of the date of the certificate and that, as of the date of
the certificate, no Event of Default exists under this Loan
Agreement, and (b) based upon Borrower's financial statements
for the ended fiscal year, demonstrating compliance with all
financial covenants applicable to Borrower as set forth in
this Loan Agreement.
Guarantor. Guarantor will deliver to Bank, within one hundred
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twenty (120) days after the close of the fiscal year of such
Guarantor a financial statement or balance sheet and income
statement of Guarantor as of the end of such period. Such
financial statements, balance sheets and income statements
will include all subsidiaries and shall be in form, scope and
detail satisfactory to Bank and shall be audited by a
certified public accountant acceptable to Bank acceptable to
Bank. If, and as often as, reasonably requested by Bank, said
Guarantor will make further reports of operations in such form
as Bank prescribes, setting out full data requested by Bank.
Guarantor further covenants and agrees with Bank that, while
this Loan Agreement is in effect, within sixty (60) days after
the end of each fiscal quarter of Guarantor, and within one
hundred twenty (120) days after the end of each fiscal year of
Guarantor, Guarantor shall furnish or cause to be furnished to
Bank a certificate executed by Guarantor's chief financial
officer, or other officer or person acceptable to Bank,
demonstrating that, based upon, as applicable, Guarantor's
quarterly or audited annual financial statements, as of the
ended fiscal quarter or year, Guarantor was in compliance with
the financial covenants applicable to Guarantor as set forth
in this Loan Agreement.
Guarantor further covenants and agrees with Bank that, while
this Loan Agreement is in effect, Guarantor will furnish or
cause to be furnished to Bank, within sixty (60) days after
filing, a copy of each quarterly 10-Q Report of Guarantor
filed with the Securities and Exchange Commission.
3.7 Notices of Claims, Litigation, Defaults, etc. Promptly inform
the Bank in writing of (1) all existing and all threatened
litigation, claims, investigations, administrative proceedings
and similar actions affecting the Borrower which could
materially affect the financial condition of the Borrower or
Guarantor; (2) the occurrence of any event which gives rise to
the Bank's option to terminate the Credit Facilities; (3) the
institution of steps by Borrower or Guarantor to withdraw
from, or the institution of any steps to terminate, any
employee benefit plan as to which Borrower or Guarantor may
have liability; (4) any additions to or changes in the
locations of Borrower's or Guarantor's businesses; and (5) any
alleged breach of any provision of this agreement or of any
other agreement related to the Credit Facilities by the Bank.
3.8 Additional Information. Furnish such additional information
and statements as Bank may request from time to time.
3.9 Other Agreements. Comply with all terms and conditions of all
other agreements, whether now or hereafter existing, between
Borrower and any other party.
3.10 Additional Assurances. Make, execute and deliver to Bank such
other agreements as Bank may reasonably request to evidence
the Credit Facilities and to perfect any security interests.
3.11 Employee Benefit Plans. Maintain each employee benefit plan as
to which Borrower may have any liability, in compliance with
all applicable requirements of law and regulations.
3.12 Appraisals. Reimburse Bank for any and all costs incurred by
Bank if, from time to time while any of the Liabilities
remains unpaid, Bank, in its sole discretion, obtains an
appraisal of all or any part of any collateral securing any of
the Credit Facilities which is real property. At the request
of Borrower, Bank will furnish Borrower with a copy of any
such appraisal.
3.13 Debt Service Coverage Ratio.
Borrower. Borrower covenants and agrees with Bank that, while
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this Loan Agreement is in effect, Borrower will comply with
the following: Maintain, as of the end of each fiscal quarter,
a ratio of (a) net income, plus amortization, depreciation,
and interest expense, plus lease expense, for the preceding
full twelve month period, to (b) current maturities of long
term debt, plus current maturities of long term leases, plus
operating lease expense, for the same such twelve month
period, of not less than 1.2 to 1.0. All computations made to
determine compliance with the requirements contained in this
paragraph shall be made in accordance with generally accepted
accounting principles, applied on a consistent basis.
Borrower further covenants and agrees with Bank that, while
this Loan Agreement is in effect, Borrower will comply with
the following: Maintain, as of the end of each fiscal quarter,
a ratio of (a) net income, plus amortization, depreciation,
and interest expense, plus lease expense, minus Distributions,
for the preceding full twelve month period, to (b) current
maturities of long term debt, plus current maturities of long
term leases, plus operating lease expense, for the same such
twelve month period, of not less than 1 to 1. As used in this
covenant, the term "Distributions" shall mean all dividends
and other distributions made by Borrower to its parent, Xxxx
Security International, Inc. Except as provided above, all
computations made to determine
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compliance with the requirements contained in this paragraph
shall be made in accordance with generally accepted accounting
principles, applied on a consistent basis.
Guarantor. Guarantor covenants and agrees with Bank that,
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while this Loan Agreement is in effect Guarantor will comply
with the following: Maintain, as of the end of each fiscal
quarter, a ratio of (a) net income, plus amortization,
depreciation, and interest expense, plus income taxes, for the
preceding full twelve-month period, to (b) current maturities
of long term debt, plus current maturities of long term
leases, plus interest expense, for the same such twelve- month
period, of not less than the Required Ratio. As used herein,
"Required Ratio" shall mean 1.4 to 1.0 for the twelve-month
period ending December 31, and 1.5 to 1.0 for the twelve-month
periods ending March 31, June 30 and September 30. All
computations made to determine compliance with the
requirements contained in this paragraph shall be made in
accordance with generally accepted accounting principles,
applied on a consistent basis.
3.14 Debt to Tangible Net Worth Ratio.
Borrower. Borrower covenants and agrees with Bank that, while
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this Loan Agreement is in effect, Borrower will comply with
the following: Maintain as of the end of each fiscal quarter,
a ratio of (a) total liabilities, to (b) Tangible Net Worth,
of less than 2.5 to 1.0. As used in this covenant, the term
"Tangible Net Worth" shall mean Borrower's total assets
excluding all intangible assets (including, without
limitation, goodwill, trademarks, patents, copyrights,
organization expenses, and similar intangible items) less
total liabilities excluding Subordinated Debt. As used in this
covenant, the term "Subordinated Debt" shall mean all
indebtedness owing by Borrower which has been subordinated by
written agreement to all indebtedness now or hereafter owing
by Borrower to Bank, such agreement to be in form and
substance acceptable to Bank. Except as provided above, all
computations made to determine compliance with the
requirements contained in this paragraph shall be made in
accordance with generally accepted accounting principles,
applied on a consistent basis, and certified by Borrower as
being true and correct.
Guarantor. Guarantor covenants and agrees with Bank that,
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while this Loan Agreement is in effect, Guarantor will comply
with the following: Guarantor will maintain as of the end of
each fiscal quarter, a ratio of (a) total liabilities, to (b)
Tangible Net Worth, of less than 2 to 1. As used in thus
covenant, the term "Tangible Net Worth" shall mean Guarantor's
total assets excluding all intangible assets (including,
without limitation, goodwill, trademarks, patents, copyrights,
organization expenses, and similar intangible items) less
total liabilities excluding Subordinated Debt. As used in this
covenant, the term "Subordinated Debt" shall mean all
indebtedness owing by Guarantor which has been subordinated by
written agreement to all indebtedness now or hereafter owing
by Guarantor to Bank, including but not limited to Guarantor's
guarantee of indebtedness of Borrower to Bank, such agreement
to be in form and substance acceptable to Bank. Except as
provided above, all computations made to determine compliance
with the requirements contained in this paragraph shall be
made in accordance with generally accepted accounting
principles, applied on a consistent basis.
4. Negative Covenants.
4.1 Unless otherwise noted, the financial requirements set forth
in this section will be computed in accordance with generally
accepted accounting principles applied on a basis consistent
with financial statements previously submitted by the Borrower
and Guarantor to the Bank.
4.2 Without the written consent of the Bank, the Borrower or
Guarantor will not:
A. Transfer of Ownership or Assets. Permit the sale,
transfer or pledge of any material portion of its
assets for less than full and adequate consideration.
B. Liens. Create or permit to exist any lien on any of
its property, real or personal, except existing liens
known to the Bank; liens to the Bank; liens incurred
in the ordinary course of business securing current
nondelinquent liabilities for taxes, worker's
compensation, unemployment insurance, social security
and pension liabilities.
C. Use of Proceeds. Use, or permit any proceeds of the
Term Loan to be used, directly or indirectly, for any
purpose other than as stated in Section 1.2 above.
D. Continuity of Operations. (1) Engage in any business
activities substantially different from those in
which Borrower and Guarantor are presently engaged;
(2) cease operations, liquidate, merge, transfer,
acquire or consolidate with any other entity, change
its name, dissolve, or sell any assets out of the
ordinary course of business; or (3) enter into any
arrangement with any person providing for the leasing
by the Borrower or Guarantor or any subsidiary of
real or personal property which has been sold or
transferred by the Borrower or Guarantor or
subsidiary to such person.
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E. Affiliate Transactions. Guarantor will not engage in
any transaction with an affiliate of Guarantor, other
than wholly owned subsidiaries, unless such
transaction is made on terms no less favorable than
those available with similarly qualified third
parties.
5. Representations by Borrower. Borrower represents that: (a) the
execution and delivery of this agreement and the Promissory Note
evidencing the Term Loan, and the performance of the obligations they
impose, do not violate any law, conflict with any agreement by which it
is bound, or require the consent or approval of any governmental
authority or other third party, (b) this agreement and the Notes are
valid and binding agreements, enforceable according to their terms, (c)
all balance sheets, profit and loss statements, and other financial
statements and other information furnished to the Bank in connection
with the Liabilities are accurate and fairly reflect the financial
condition of the organizations and persons to which they apply on their
effective dates, including contingent liabilities of every type, which
financial condition has not changed materially and adversely since
those dates, (d) no litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against
Borrower is pending or threatened, and no other event has occurred
which may in any one case or in the aggregate materially adversely
affect Borrower's financial condition and properties, other than
litigation, claims, or other events, if any, that have been disclosed
to and acknowledged by Bank in writing, (e) all of Borrower's tax
returns and reports that are or were required to be filed, have been
filed, and all taxes, assessments and other governmental changes have
been paid in full, except those presently being contested by Borrower
in good faith and for which adequate reserves have been provided, (f)
Borrower is not a "holding company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act
of 1940, as amended, (g) Borrower is not a "holding company", or a
"subsidiary company" of a "holding company" or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company"
within the meaning of the Public Utility Holding Company Act of 1935,
as amended, (h) there are no defenses or counterclaims, offsets or
adverse claims, demands or actions of any kind, personal or otherwise,
that Borrower could assert with respect to this agreement or the Credit
Facilities, (i) no portion of any advance under any Credit Facility
shall be used directly or indirectly to purchase ineligible securities,
as defined by applicable regulations of the Federal Reserve Board,
underwritten by BANK ONE CORPORATION or any of its subsidiaries or
affiliates or their successors, during the underwriting period and for
30 days thereafter, (j) Borrower owns, or is licensed to use, all
trademarks, trade names, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted, and
(k) no part of the proceeds of the Credit Facilities will be used for
"purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System of the United States (the
"Board") as now and from time to time hereafter in effect or for any
purpose which violates the provisions of any regulations of the Board.
Each Borrower, other than a natural person, further represents that:
(a) it is duly organized, existing and in good standing pursuant to the
laws under which it is organized, and (b) the execution and delivery of
this agreement and the Notes and the performance of the obligations
they impose (i) are within its powers, (ii) have been duly authorized
by all necessary action of its governing body, and (iii) do not
contravene the terms of its articles of incorporation or organization,
its by-laws, or any partnership, operating or other agreement governing
its affairs.
6. Default/Remedies. If any of the Credit Facilities are not paid at
maturity, whether by acceleration or otherwise, or if a default by
anyone occurs under the terms of this agreement, the Notes or any
agreement related to the Credit Facilities, then the Bank shall have
all of the rights and remedies provided by any law or agreement.
7. Miscellaneous.
7.1 Notices. Any notices and demands under or related to this
document shall be in writing and delivered to the intended
party at its address stated herein, and if to the Bank, at its
main office if no other address of the Bank is specified
herein, by one of the following means: (a) by hand, (b) by a
nationally recognized overnight courier service, or (c) by
certified mail, postage prepaid, with return receipt
requested. Notice shall be deemed given: (a) upon receipt if
delivered by hand, (b) on the Delivery Day after the day of
deposit with a nationally recognized courier service, or (c)
on the third Delivery Day after the notice is deposited in the
mail. "Delivery Day" means a day other than a Saturday, a
Sunday, or any other day on which national banking
associations are authorized to be closed. Any party may change
its address for purposes of the receipt of notices and demands
by giving notice of such change in the manner provided in this
provision.
7.2 No Waiver. No delay on the part of the Bank in the exercise of
any right or remedy waives that right or remedy. No single or
partial exercise by the Bank of any right or remedy precludes
any other future exercise of it or the exercise of any other
right or remedy. No waiver or indulgence by the Bank of any
default is effective unless it is in writing and signed by the
Bank, nor shall a waiver on one occasion bar or waive that
right on any future occasion.
7.3 Integration. This agreement supersedes all prior loan
agreements relating to any of the Credit Facilities. If any
one or more of the obligations of the Borrower under this
agreement or the Notes is invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of
the remaining obligations of the Borrower shall not in any way
be affected or impaired, and the invalidity, illegality or
unenforceability in one jurisdiction shall not affect the
validity, legality or enforceability of the obligations of the
Borrower under this agreement or the Notes in any other
jurisdiction.
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7.4 Governing Law and Venue. This agreement is delivered in the
State of Texas and governed by Texas law (without giving
effect to its laws of conflicts). The Borrower agrees that any
legal action or proceeding with respect to any of its
obligations under this agreement may be brought in any state
or federal court located in such state, as the Bank in its
sole discretion may direct. By execution and delivery of this
agreement, the Borrower submits to and accepts, for itself and
in respect of its property, generally and unconditionally, the
jurisdiction of such courts. The Borrower waives any claim
that the State of Texas is not a convenient forum or the
proper venue for any such suit, action or proceeding.
7.5 Captions. Section headings are for convenience of reference
only and do not affect the interpretation of this agreement.
7.6 Subsidiaries and Affiliates of Borrower. To the extent the
context of any provisions of this agreement makes it
appropriate, including without limitation any representation,
warranty or covenant, the word "Borrower" as used in this
agreement shall include all of Borrower's subsidiaries and
affiliates. Notwithstanding the foregoing, however, under no
circumstances shall this agreement be construed to require
Bank to make any loan or other financial accommodation to any
of Borrower's subsidiaries or affiliates.
7.7 Survival of Representations and Warranties. Borrower
understands and agrees that in extending the Credit
Facilities, Bank is relying on all representations,
warranties, and covenants made by Borrower in this agreement
or in any certificate or other instrument delivered by
Borrower to Bank under this agreement. Borrower further agrees
that regardless of any investigation made by Bank, all such
representations, warranties and covenants will survive the
making of the Credit Facilities and delivery to Bank of this
agreement, shall be continuing in nature, and shall remain in
full force and effect until such time as Borrower's
indebtedness to Bank shall be paid in full.
7.8 Non-Liability of Bank. The relationship between Borrower and
Bank created by this agreement is strictly a debtor and
creditor relationship and not fiduciary in nature, nor is the
relationship to be construed as creating any partnership or
joint venture between Bank and Borrower. Borrower is
exercising Borrower's own judgment with respect to Borrower's
business. All information supplied to Bank is for Bank's
protection only and no other party is entitled to rely on such
information. There is no duty for Bank to review, inspect,
supervise or inform Borrower of any matter with respect to
Borrower's business. Bank and Borrower intend that Bank may
reasonably rely on all information supplied by Borrower to
Bank, together with all representations and warranties given
by Borrower to Bank, without investigation or confirmation by
Bank and that any investigation or failure to investigate will
not diminish Bank's right to so rely.
7.9 Indemnification of Bank. Borrower agrees to indemnify, defend
and hold Bank and BANK ONE CORPORATION, or any of its
subsidiaries or affiliates or their successors, and each of
their respective shareholders, directors, officers, employees
and agents (collectively the "Indemnified Persons") harmless
from any and all obligations, claims, liabilities, losses,
damages, penalties, fines, forfeitures, actions, judgments,
suits, costs, expenses and disbursements of any kind or nature
(including, without limitation, any Indemnified Person's
attorneys' fees) (collectively the "Claims") which may be
imposed upon, incurred by or assessed against any Indemnified
Person (whether or not caused by any Indemnified Person's
sole, concurrent, or contributory negligence) arising out of
or relating to this agreement; the exercise of the rights and
remedies granted under this agreement (including, without
limitation, the enforcement of this agreement and the defense
of any Indemnified Person's action or inaction in connection
with this agreement); and in connection with Borrower's
failure to perform all of Borrower's obligations under this
agreement, except to the limited extent that the Claims
against any such Indemnified Person are proximately caused by
such Indemnified Person's gross negligence or willful
misconduct. The indemnification provided for in this section
shall survive the termination of this agreement and shall
extend to and continue to benefit each individual or entity
who is or has at any time been an Indemnified Person.
Borrower's indemnity obligations under this section shall not
in any way be affected by the presence or absence of covering
insurance, or by the amount of such insurance or by the
failure or refusal of any insurance carrier to perform any
obligation on its part under any insurance policy or policies
affecting Borrower's assets or Borrower's business activities.
Should any Claim be made or brought against any Indemnified
Person by reason of any event as to which Borrower's
indemnification obligations apply, then, upon any Indemnified
Person's demand, Borrower, at its sole cost and expense, shall
defend such Claim in Borrower's name if necessary, by the
attorneys for Borrower's insurance carrier (if such Claim is
covered by insurance), or otherwise by such attorneys as any
Indemnified Person shall approve. Any Indemnified Person may
also engage its own attorneys at its reasonable discretion to
defend Borrower and to assist in its defense and Borrower
agrees to pay the fees and disbursements of such attorneys.
WITHOUT LIMITATION OF THE FOREGOING, IT IS THE INTENTION OF
BORROWER AND BORROWER AGREES THAT THE FOREGOING INDEMNITIES
SHALL APPLY TO EACH INDEMNIFIED PERSON WITH RESPECT TO CLAIMS,
OBLIGATIONS, DAMAGES, LOSSES, COSTS, EXPENSES (INCLUDING,
WITHOUT LIMITATION, ATTORNEYS' FEES), DEMANDS, LIABILITIES,
PENALTIES, FINES AND FORFEITURES WHICH IN WHOLE OR IN PART ARE
CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR ANY
OTHER) INDEMNIFIED PERSON.
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7.10 Counterparts. This agreement may be executed in multiple
counterparts, each of which, when so executed, shall be deemed
an original, but all such counterparts, taken together, shall
constitute one and the same agreement.
7.11 Sole Discretion of Bank. Whenever Bank's consent or approval
is required under this agreement, the decision as to whether
or not to consent or approve shall be in the sole and
exclusive discretion of Bank and Bank's decision shall be
final and conclusive.
7.12 Advice of Counsel. Borrower acknowledges that it has been
advised by counsel, or had the opportunity to be advised by
counsel, in the negotiation, execution and delivery of this
agreement and any documents executed and delivered in
connection with the Credit Facilities.
7.13 Recovery of Additional Costs. If the imposition of or any
change in any law, rule, regulation, or guideline, or the
interpretation or application of any thereof by any court or
administrative or governmental authority (including any
request or policy not having the force of law) shall impose,
modify, or make applicable any taxes (except federal, state,
or local income or franchise taxes imposed on Bank), reserve
requirements, capital adequacy requirements, or other
obligations which would (A) increase the cost to Bank for
extending or maintaining the Credit Facilities, (B) reduce the
amounts payable to Bank under the Credit Facilities, or (C)
reduce the rate of return on Bank's capital as a consequence
of Bank's obligations with respect to the Credit Facilities,
then Borrower agrees to pay Bank such additional amounts as
will compensate Bank therefor, within five (5) days after
Bank's written demand for such payment. The Bank's demand
shall be accompanied by an explanation of such imposition or
charge and a calculation in reasonable detail of the
additional amounts payable by Borrower, which explanation and
calculations shall be conclusive in the absence of manifest
error.
7.14 Conflicting Terms. If this agreement is inconsistent with any
provision in any agreement related to the Credit Facilities,
the Bank shall determine, in the Bank's sole and absolute
discretion, which of the provisions shall control any such
inconsistency.
7.15 Expenses. Borrower agrees to pay or reimburse Bank for all its
out-of-pocket costs and expenses and reasonable attorneys'
fees incurred in connection with the development, preparation
and execution of, and in connection with the enforcement or
preservation of any rights under, this agreement, any
amendment, supplement, or modification thereto, and any other
documents prepared in connection herewith or therewith. These
costs and expenses include without limitation any costs or
expenses incurred by Bank in any bankruptcy, reorganization,
insolvency or other similar proceeding.
7.16 Loan Participation. Borrower agrees that Bank may provide any
information Bank may have about Borrower or about any matter
relating to the Note to BANK ONE CORPORATION, or any of its
subsidiaries or affiliates or their successors, or to any one
or more purchasers or potential purchasers of the Note.
Borrower agrees that Bank may at any time sell, assign or
transfer one of more interests or participations in all or any
part of its rights or obligations in the Note to one or more
purchases whether or not related to Bank.
8. WAIVER OF SPECIAL DAMAGES. THE BORROWER WAIVES, TO THE MAXIMUM EXTENT
NOT PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR
RECOVER FROM BANK IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
9. JURY WAIVER. BORROWER AND BANK HEREBY VOLUNTARILY, KNOWINGLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT,
OR OTHERWISE) BETWEEN BORROWER AND BANK ARISING OUT OF OR IN ANY WAY
RELATED TO THIS LOAN AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS
LOAN AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO
PROVIDE THE FINANCING DESCRIBED HEREIN.
Executed by the parties as of November 28, 2000.
BANK: BORROWER:
BANK ONE, TEXAS, NATIONAL ASSOCIATION EAGER BEAVER CAR WASH, INC., a
Florida corporation
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------ --------------------
Xxxx X. Xxxxxx, Senior Vice President Xxxxxx X. Xxxxxx, Secretary
Page 7
ACKNOWLEDGMENT BY GUARANTOR
The undersigned acknowledges that it had the opportunity to review the above
agreement. This acknowledgment shall not be deemed or construed to affect or
impair any provisions of any guaranty agreement executed and delivered by the
undersigned.
XXXX SECURITY INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Xxxxxxx X. Xxxxxxxx, Treasurer
Page 8
Exhibit 10.130
PROMISSORY NOTE
$6,754,400.00 November 28, 2000
FOR VALUE RECEIVED, on or before November 28, 2003 ("Maturity Date"), the
-------------
undersigned, EAGER BEAVER CAR WASH, INC., a Florida corporation, and if more
than one, each of them, jointly and severally (hereinafter referred to as
"Borrower"), promises to pay to the order of BANK ONE, TEXAS, NATIONAL
---------
ASSOCIATION ("Bank") at its offices in Tarrant County, Texas at 0000 X. Xxxxx
----
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx 00000, the principal amount of SIX MILLION,
SEVEN HUNDRED FIFTY-FOUR THOUSAND, FOUR HUNDRED AND NO/100 DOLLARS
($6,754,400.00) ("Total Principal Amount"), or such amount less than the Total
----------------------
Principal Amount which has been advanced to Borrower if the total amount
advanced under this Promissory Note ("Note") is less than the Total Principal
----
Amount, together with interest on such portion of the Total Principal Amount
which has been advanced to Borrower from the date advanced until paid at a
fluctuating rate per annum which shall from day to day be equal to the lesser of
(a) the Maximum Rate (as hereinafter defined), or (b) a rate ("Contract Rate"),
-------------
calculated on the basis of the actual days elapsed but computed as if each year
consisted of 360 days, equal to the sum of (i) the Prime Rate (as hereinafter
defined), plus (ii) one-fourth percent (.25%); provided, however, that if at any
time the Contract Rate shall exceed the Maximum Rate, thereby causing the
interest on this Note to be limited to the Maximum Rate, then any subsequent
reduction in the Prime Rate shall not reduce the rate of interest on this Note
below the Maximum Rate until the total amount of interest accrued on this Note
equals the amount of interest which would have accrued on this Note if the
Contract Rate had at all times been in effect.
The term "Maximum Rate," as used herein, shall mean at the particular time
------------
in question the maximum rate of interest which, under applicable law, may then
be charged on this Note. If such maximum rate of interest changes after the
date hereof and this Note provides for a fluctuating rate of interest, the
Maximum Rate shall be automatically increased or decreased, as the case may be,
without notice to Borrower from time to time as of the effective date of each
change in such Maximum Rate. If applicable law ceases to provide for such a
maximum rate of interest, the Maximum Rate shall be equal to eighteen percent
(18%) per annum.
The term "Prime Rate," as used herein, shall mean a rate per annum equal to
----------
the prime rate of interest announced from time to time by Bank One, Texas,
National Association or its parent (which is not necessarily the lowest rate
charged to any customer), changing when and as said prime rate changes, each
change in the rate to be charged on this Note to become effective without notice
to Borrower on the effective date of each change in the Maximum Rate or the
Prime Rate, as the case may be.
Interest on this Note is computed by applying the ratio of the annual
interest rate over a year of 360 days, multiplied by the outstanding principal
balance, multiplied by the actual number of days the principal balance is
outstanding.
The principal of and all accrued but unpaid interest on this Note shall be
due and payable without offset or reduction as follows:
(x) Principal and interest shall be amortized on the basis of a fifteen
(15) year term payable in monthly installments of principal and interest in the
amount of Seventy-One Thousand, Five Hundred Fifty-Three and 59/100 Dollars
($71,553.59) commencing on December 28, 2000, and continuing on the same day of
each month thereafter through November 28, 2001. Interest shall be adjusted
with each change in the Prime Rate. Each such payment shall be applied first to
accrued but unpaid interest and then to principal. Commencing on December 28,
2001 and continuing through November 28, 2002, the amount of such monthly
principal and interest payments shall be determined based upon the Prime Rate in
effect on November 28, 2001, and amortized over the remaining portion of the
fifteen (15) year amortization period. Commencing on December 28th of each
year beginning in 2002, the monthly principal and interest installments
thereafter due and payable shall be adjusted annually based on the remaining
portion of the fifteen (15) year amortization period and the Prime Rate in
effect on the 28th day of November of that year. In the event the Prime Rate
shall increase to a rate such that the monthly payment of principal and interest
then payable shall not be sufficient to equal the total unpaid interest accrued
to such payment date, then Borrower shall pay monthly an amount equal to the
interest due on such payment date.
(x) the outstanding principal balance of this Note, together with all
accrued but unpaid interest, shall be due and payable on the Maturity Date.
If a payment is ten (10) or more days late, Borrower will pay a delinquency
charge in an amount equal to the greater of (i) $25.00, or (ii) 5.0% of the
amount of the delinquent payment up to the maximum amount of $1,500.00 per late
charge. Upon default, including failure to pay upon final maturity, Bank, at
its option, may also, if permitted under applicable law, do one or both of the
following: (a) increase the applicable interest rate on this Note three (3.00)
percentage points, and (b) add any unpaid accrued interest to principal and such
sum will bear interest therefrom until paid at the rate provided in this Note
(including any increased rate). The interest rate will not exceed the maximum
rate permitted by applicable law.
Page 1
Borrower may from time to time prepay all or any portion of the principal
of this Note for which right Borrower shall also pay a penalty equal to a
percentage of the prepayment amount. Prior to the first anniversary date of the
Note, the penalty shall be three percent (3%). After the first anniversary date
of the Note and after each successive anniversary date thereafter, the penalty
previously in effect shall reduce by one percent (1%). Partial prepayments
shall be applied to installments of principal in the inverse order of maturity
and will not reduce the amount or time of payment of the remaining installments.
Unless otherwise agreed to in writing, or otherwise required by applicable law,
payments will be applied first to unpaid accrued interest, then to principal,
and any remaining amount to any unpaid collection costs, late charges and other
charges; provided, however, upon delinquency or other default, Bank reserves the
right to apply payments among principal, interest, late charges, collection
costs and other charges, at its discretion. All prepayments shall be applied
to the indebtedness owing hereunder in such order and manner as Bank may from
time to time determine in its sole discretion. All payments and prepayments of
principal of or interest on this Note shall be made in lawful money of the
United States of America in immediately available funds, at the address of Bank
indicated above, or such other place as the holder of this Note shall designate
in writing to Borrower. If any payment of principal of or interest on this Note
shall become due on a day which is not a Business Day (as hereinafter defined),
such payment shall be made on the next succeeding Business Day and any such
extension of time shall be included in computing interest in connection with
such payment. As used herein, the term "Business Day" shall mean any day other
------------
than a Saturday, Sunday or any other day on which national banking associations
are authorized to be closed. The books and records of Bank shall be prima facie
----- -----
evidence of all outstanding principal of and accrued and unpaid interest on this
Note.
This Note has been executed and delivered pursuant to that certain Loan
Agreement of even date herewith by and between Borrower and Bank ("Loan
----
Agreement"), and is secured by, inter alia, the following:
--------- ----- ----
A Mortgage of even date herewith from Borrower in favor of Bank,
covering certain real property situated in Xxx, Manatee and Sarasota
Counties, Florida, as more particularly described therein.
.
This Note, the Loan Agreement and all other documents evidencing, securing,
governing, guaranteeing and/or pertaining to this Note, including but not
limited to those documents described above, are hereinafter collectively
referred to as the "Loan Documents." The holder of this Note is entitled to the
--------------
benefits and security provided in the Loan Documents.
Borrower agrees that no advances under this Note shall be used for
personal, family or household purposes, and that all advances hereunder shall be
used solely for business, commercial, investment, or other similar purposes.
Borrower agrees that upon the occurrence of any one or more of the
following events of default ("Event of Default"):
----------------
(a) failure of Borrower to pay any installment of principal of or
interest on this Note or on any other indebtedness of Borrower to Bank when
due; or
(b) the occurrence of any event of default specified in any of the
other Loan Documents; or
(c) the bankruptcy or insolvency of, the assignment for the benefit of
creditors by, or the appointment of a receiver for any of the property of,
or the liquidation, termination, dissolution or death or legal incapacity
of, any party liable for the payment of this Note, whether as maker,
endorser, guarantor, surety or otherwise;
the holder of this Note may, at its option, without further notice or demand,
(i) declare the outstanding principal balance of and accrued but unpaid interest
on this Note at once due and payable, (ii) refuse to advance any additional
amounts under this Note, (iii) foreclose all liens securing payment hereof, (iv)
pursue any and all other rights, remedies and recourses available to the holder
hereof, including but not limited to any such rights, remedies or recourses
under the Loan Documents, at law or in equity, or (v) pursue any combination of
the foregoing.
The failure to exercise the option to accelerate the maturity of this Note
or any other right, remedy or recourse available to the holder hereof upon the
occurrence of an Event of Default hereunder shall not constitute a waiver of the
right of the holder of this Note to exercise the same at that time or at any
subsequent time with respect to such Event of Default or any other Event of
Default. The rights, remedies and recourses of the holder hereof, as provided
in this Note and in any of the other Loan Documents, shall be cumulative and
concurrent and may be pursued separately, successively or together as often as
occasion therefore shall arise, at the sole discretion of the holder hereof.
The acceptance by the holder hereof of any payment under this Note which is less
than the payment in full of all amounts due and payable at the time of such
payment shall not (i) constitute a waiver of or impair, reduce, release or
extinguish any right, remedy or recourse of the holder hereof, or nullify any
prior exercise of any such right, remedy or recourse, or (ii)
Page 2
impair, reduce, release or extinguish the obligations of any party liable under
any of the Loan Documents as originally provided herein or therein.
This Note and all of the other Loan Documents are intended to be performed
in accordance with, and only to the extent permitted by, all applicable usury
laws. If any provision hereof or of any of the other Loan Documents or the
application thereof to any person or circumstance shall, for any reason and to
any extent, be invalid or unenforceable, neither the application of such
provision to any other person or circumstance nor the remainder of the
instrument in which such provision is contained shall be affected thereby and
shall be enforced to the greatest extent permitted by law. It is expressly
stipulated and agreed to be the intent of the holder hereof to at all times
comply with the usury and other applicable laws now or hereafter governing the
interest payable on the indebtedness evidenced by this Note. If the applicable
law is ever revised, repealed or judicially interpreted so as to render usurious
any amount called for under this Note or under any of the other Loan Documents,
or contracted for, charged, taken, reserved or received with respect to the
indebtedness evidenced by this Note, or if Bank's exercise of the option to
accelerate the maturity of this Note, or if any prepayment by Borrower results
in Borrower having paid any interest in excess of that permitted by law, then it
is the express intent of Borrower and Bank that all excess amounts theretofore
collected by Bank be credited on the principal balance of this Note (or, if this
Note and all other indebtedness arising under or pursuant to the other Loan
Documents have been paid in full, refunded to Borrower), and the provisions of
this Note and the other Loan Documents immediately be deemed reformed and the
amounts thereafter collectable hereunder and thereunder reduced, without the
necessity of the execution of any new document, so as to comply with the then
applicable law, but so as to permit the recovery of the fullest amount otherwise
called for hereunder or thereunder. All sums paid, or agreed to be paid, by
Borrower for the use, forbearance, detention, taking, charging, receiving or
reserving of the indebtedness of Borrower to Bank under this Note or arising
under or pursuant to the other Loan Documents shall, to the maximum extent
permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so that the
rate or amount of interest on account of such indebtedness does not exceed the
usury ceiling from time to time in effect and applicable to such indebtedness
for so long as such indebtedness is outstanding. To the extent federal law
permits Bank to contract for, charge or receive a greater amount of interest,
Bank will rely on federal law instead of the Texas Finance Code, as supplemented
by Texas Credit Title, for the purpose of determining the Maximum Rate.
Additionally, to the maximum extent permitted by applicable law now or hereafter
in effect, Bank may, at its option and from time to time, implement any other
method of computing the Maximum Rate under the Texas Finance Code, as
supplemented by Texas Credit Title, or under other applicable law, by giving
notice, if required, to Borrower as provided by applicable law now or hereafter
in effect. Notwithstanding anything to the contrary contained herein or in any
of the other Loan Documents, it is not the intention of Bank to accelerate the
maturity of any interest that has not accrued at the time of such acceleration
or to collect unearned interest at the time of such acceleration.
In no event shall Chapter 346 of the Texas Finance Code (which regulates
certain revolving loan accounts and revolving tri-party accounts) apply to this
Note. To the extent that Chapter 303 of the Texas Finance Code, is applicable
to this Note, the "weekly ceiling" specified in such Chapter 303 is the
applicable ceiling; provided that, if any applicable law permits greater
interest, the law permitting the greatest interest shall apply.
If this Note is placed in the hands of an attorney for collection, or is
collected in whole or in part by suit or through probate, bankruptcy or other
legal proceedings of any kind, Borrower agrees to pay, in addition to all other
sums payable hereunder, all costs and expenses of collection, including but not
limited to reasonable attorneys' fees.
Borrower and any and all endorsers and guarantors of this Note severally
waive presentment for payment, notice of nonpayment, protest, demand, notice of
protest, notice of intent to accelerate, notice of acceleration and dishonor,
diligence in enforcement and indulgences of every kind and without further
notice hereby agree to renewals, extensions, exchanges or releases of
collateral, taking of additional collateral, indulgences or partial payments,
either before or after maturity.
Borrower agrees that Bank may provide any information Bank may have about
Borrower or about any matter relating to this Note to BANK ONE CORPORATION, or
any of its subsidiaries or affiliates or their successors, or to any one or more
purchasers or potential purchasers of this Note. Borrower agrees that Bank may
at any time sell, assign or transfer one of more interests or participations in
all or any part of its rights or obligations in this Note to one or more
purchases whether or not related to Bank.
BORROWER AND BANK (BY ITS ACCEPTANCE HEREOF) HEREBY VOLUNTARILY, KNOWINGLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN
BORROWER AND BANK ARISING OUT OF OR IN ANY WAY RELATED TO THIS NOTE OR THE
TRANSACTIONS CONTEMPLATED BY THIS NOTE. THIS PROVISION IS A MATERIAL INDUCEMENT
TO BANK TO PROVIDE THE FINANCING EVIDENCED BY THIS NOTE.
Page 3
THIS NOTE HAS BEEN EXECUTED UNDER, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, EXCEPT AS SUCH LAWS ARE
PREEMPTED BY APPLICABLE FEDERAL LAWS.
BORROWER:
EAGER BEAVER CAR WASH, INC., a Florida corporation
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X .Xxxxxx, Secretary
Page 4
