Exhibit 10.27
AMENDED, RESTATED AND CONSOLIDATED
RENEWAL REVOLVER NOTE
$7,500,000.00 April 2, 1999
FOR VALUE RECEIVED, XXXXXXX EDUCATION GROUP, INC., f/k/a Xxxxxxx
Medical Corp., a Florida corporation ("Borrower"), promises to pay to the order
of
NATIONSBANK, N.A.
a national banking corporation ("Lender") (successor by merger), the principal
sum of
SEVEN MILLION FIVE HUNDRED THOUSAND DOLLARS
and the Borrower further promises to pay to the Lender interest monthly, on the
30th day of each month, until repaid in full, on the principal amount evidenced
hereby and from time to time outstanding at a rate per annum determined in
accordance with the Credit Agreement (as defined below). The rate of interest to
be applied and the amount of interest to be paid on the daily outstanding
balance of principal evidenced hereby shall be calculated on an assumed year of
360 days for the number of days actually elapsed.
The Borrower agrees to pay the outstanding principal indebtedness
evidence by this note in full on July 31, 1999. All advances made hereunder by
the Lender to the Borrower and all payments made on account of principal hereof
shall be recorded by the Lender and, prior to transfer hereof, endorsed on the
grid attached hereto.
The Borrower further promises and agrees that:
1. This Note is the Revolver Note referred to in, and is entitled to
the benefits of, that certain Credit Agreement, dated as of April 11, 1996, as
amended by amendment dated August 14, 1996, as further amended by amendment
dated October 31, 1996 and amendment dated May 21, 1997, and as amended by
amendment of even date herewith (collectively, the Credit Agreement), among
the Lender, the Borrower and the Guarantor, the terms of which are incorporated
herein by this reference as if fully set forth herein. Provided no Event of
Default has occurred and is continuing, the Borrower may borrow, prepay and
reborrow provided the aggregate principal amount outstanding from time to time
and at any time does nor exceed $7,500,000.00.
2. This Borrower shall be in default under the terms of this note upon
the occurrence and continuation of an Event of Default as defined and described
in the Credit Agreement.
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3. At any time after the occurrence and continuation of any Event of
Default, the indebtedness evidenced by this note and / or any note(s) or other
obligation(s) which may be taken in renewal, extension, substitution, or
modification of all or any part of the indebtedness evidenced thereby and all
other Obligations of the Borrower to the Lender, howsoever created and existing
under the Credit Agreement or otherwise, shall immediately become due and
payable without demand upon or notice to the Borrower, and the Lender shall be
entitled to exercise the other remedies set forth in the Credit Agreement or as
otherwise provided at law or in equity.
4. Upon the occurrence and during the continuance of any Event of
Default, the Lender is authorized, without further notice to the Borrower (the
giving of notice being expressly waived by the Borrower) to set off and apply
any indebtedness owing by the Lender to the Borrower against the indebtedness
evidenced by this note, although then contingent or unmatured. The Lender agrees
to notify the Borrower after any such setoff and application; provided, however,
the failure to give such notice shall not affect the validity of such setoff and
application. The rights of the Lender under this Paragraph 4 are in addition to
any other rights and remedies which the Lender may have.
5. The Lender may transfer this note and the transferee(s) shall
thereupon become vested with all the powers, rights, and obligations herein
given to the Lender with respect thereto; and the Lender shall thereafter be
forever relieved and fully discharged from any liability or responsibility in
the matter.
6. The Borrower hereby waives presentment for payment, demand, notice
of dishonor and protest and agrees that (i) any right of setoff securing any
indebtedness evidenced by this note may, from time to time, in whole or in part,
be exchanged or released, and any person liable on or with respect to the
indebtedness evidenced by this note may be released -- all without notice to or
further reservations of rights against the Borrower, any indorser, surety or
guarantor and all without in any way affecting or releasing the liability of the
Borrower, any indorser, surety or guarantor; and (ii) none of the terms or
provisions of this note may be waived, altered, modified or amended except as
the Lender may consent thereto in writing.
7. In the event of any litigation involving this note, the prevailing
party shall be entitled to collect reasonable attorneys fees, out-of-pocket
expenses, and court costs. As used in this note, the term, attorneys fees,
shall mean reasonable charges and expenses for legal services at the trial
and/or appellate level and/or in pre- and post-judgment or bankruptcy
proceedings.
8. Both principal and interest of this note shall be payable in lawful
currency of the United States of America to the Lender at 000 Xxxxxxxx Xxxxxx,
Xxxxx, Xxxxxxx 00000 or at such other place or to such other person as may be
designated in writing by the Lender, in immediately available (same day) funds
without deduction for or on account of any present or future taxes levied or
imposed on this note, the proceeds hereof, or on the Borrower
or holder hereof by any government, or any instrumentality,
authority or political subdivision thereof. The Borrower agrees,
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upon the request of the Lender, to pay all such taxes (other than taxes on or
measured by net income of the holder hereof) in addition to the principal and
interest evidenced by this note.
9. Any installment of principal and/or interest evidenced
by this note which is not paid on the day when such payment
is scheduled to be made, regardless of whether or not the
Lender has accelerated payment of any or all sums outstanding under this note,
shall bear interest from the day when due (including any grace period) until
said amount is paid in full, payable on demand, at a rate per annum equal at all
times to the sum of (i) the rate otherwise applicable hereunder plus (ii) four
percent (4%).
10. This note shall be deemed to have been made under and shall be
governed by the laws of the State of Florida in all respects except as to
interest rates and other terms of lending which, by virtue of a federal
preemption or, at the election of the Lender, are or may be governed by the laws
of the United States, including matters of construction, validity, and
performance. If any provision of this note shall be deemed unenforceable under
applicable law, such provision shall be ineffective, but only to the extent of
such unenforceability, without invalidating the remainder of such provision or
the remaining provisions of this note. If more than one person signs this note
as a maker, each shall be jointly and severally liable hereunder. All of the
terms and provisions of this note shall be applicable to and be binding upon
each and every maker, indorser, surety, guarantor, all other persons who are or
may become liable for the payment hereof and their heirs, personal
representatives, successors or assigns.
11. This note amends and restates that certain Xxxxxxx, Restated and
Consolidated Renewal Revolver Note dated as of May 21, 1997, executed by
Xxxxxxxx to the order of Lender, which previous note had amended, restated,
consolidated and renewed (a) that Revolver Note dated April 11, 1996, in the
principal amount of $2,500,000.00, executed by Borrower to the order of Xxxxxxx
Bank of South Florida, N.A., (b) that Revolver Note dated October 31, 1996, in
the principal amount of $3,000,000.00 executed by Xxxxxxxx to the order of
Lender, and (c) that certain Revolver Note dated May 21, 1997 in the principal
amount of $2,000,000 executed by Xxxxxxxx to the order of Lender.
12. THE BORROWER, AND THE LENDER IN ACCEPTING DELIVERY OF THIS NOTE,
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE
TO TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED ON THIS NOTE OR THE CREDIT
AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE CREDIT
AGREEMENT OR ANY OTHER AGREEMENT SIGNED OR CONTEMPLATED TO BE SIGNED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER PARTY OR THE DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS THEREOF. THE INCLUDING OF THIS PROVISION IS A MATERIAL
INDUCEMENT TO THE LENDER TO EXTEND CREDIT TO THE BORROWER.
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XXXXXXX EDUCATION GROUP, INC.
/s/ XXXXXXX X. XXXXXXX
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By: Xxxxxxx X. Xxxxxxx
Title: Vice President
STATE OF ______ )
) SS.
COUNTY OF _______ )
The foregoing Amended, Restated and Consolidated Renewal Revolver Note
was acknowledged was before me this day of April, 1999 by , as of XXXXXXX
EDUCATION GROUP, INC., a Florida _________________ corporation. He/She:
________ is personally known to me, or
________ produced as _______________ identification.
______________________________
NOTARY PUBLIC
My Commission Expires: Printed Name of Notary:
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