AMENDMENT TO REIMBURSEMENT AGREEMENT
THIS AMENDMENT TO REIMBURSEMENT AGREEMENT (The Amendment ), made and entered
into this 31st day of March 1994, by and among QUIPP, INC., a Florida
corporation (the Company), QUIPP SYSTEMS, INC., a Florida corporation (the
Guarantor ), and NATIONS BANK OF NORTH CAROLINA, N.A., FORMERLY KNOWN AS NCNB
National Bank of North Carolina (the Bank ).
RECITALS
A. The Company, the Guarantor and the Bank entered into a Reimbursement
Agreement dated as of October 1, 1988 (the Agreement ) in connection with, and
as an inducement to the Bank for the Bank's issuance of a letter of credit (the
Letter of Credit ) to Mellon Bank, N.A., as trustee for the benefit of the
holders of bonds in the original aggregate principal amount of TWO MILLION THREE
HUNDRED FORTY THOUSAND DOLLARS ($2,340,000.00) issued by the Dade County
Industrial Development Authority, a political subdivision and body corporate and
politic of the State or Florida.
B. The amount available under the Letter of Credit, as same has been
previously extended, has been reduced to ONE MILLION SIX HUNDRED FIFTY THOUSAND
DOLLARS ($1,650,000.00).
C. The Company and the Guarantor have requested the bank to extend the
Letter of Credit to September 16, 1998, and the Bank is agreeable to same,
subject to the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the mutual covenants of the parties
hereto, and for other good and valuable consideration, it is agreed as follows:
1. The foregoing statements are true and correct and are incorporated
herein as if set forth in full.
2. Unless otherwise defined herein, all terms used herein shall have
the definitions specified in the Agreement.
3. The agreement is hereby modified as follows (all references to
Sections being the applicable Sections of the Agreement):
(a) The minimum Consolidated Tangible Net Worth, required pursuant
to Section 4.01 be EIGHT MILLION SEVEN HUNDRED NINETY-NINE THOUSAND DOLLARS
($8,799,000.00) at fiscal year end December 31, 1993, increased, as of each
subsequent fiscal year end, by the Required Annual Increase as provided in
Section 4.01 (p), but such Consolidated Tangible Net Worth to, in no event,
decline for three or more consecutive fiscal quarters.
(b) The minimum Debt Coverage Ratio, as required pursuant to
Section 4.01 (r), is increased to 1.75 to 1.00.
(c) Section 4.01 (t) is added as follows:
(t) Within ninety (90) days after each annual Dade County
environmental inspection of the property
encumbered by the Mortgage,
deliver to the bank a certificate from Dade County, in
form and
substance satisfactory to the Bank, demonstrating ongoing
satisfactory environmental compliance with respect to
such property.
4. Each and every reference to the Agreement in the other Bond
Documents shall be deemed to refer to the Agreement, as modified by this
Amendment.
5. The obligation of the Bank to further extend the Letter of Credit
as provided herein is subject to satisfactory compliance with conditions
precedent requiring that the Bank shall have received the following, prior to or
simultaneously with the execution of this Amendment:
(a) current certified copies of Articles of Incorporation, By-Laws
and evidence of good standing for the company and the Guarantor; and
(b) such additional documents, instruments and agreements as
are required hereunder as well as those which the Bank or its counsel may
reasonably request.
6. As partial consideration for the Bank extending the Letter of Credit
as provided above, the Bank has fully earned a nonrefundable renewal fee in the
amount of EIGHT THOUSAND TWO HUNDRED FIFTY DOLLARS ($8,250.00), which shall be
paid to the Bank simultaneously with the execution of this Amendment.
7. The Company and the Guarantor each represent and warrant to the Bank
that, except as has been otherwise disclosed to the Bank in writing, the
representations and warranties contained in the Agreement and all related
documentation are true and correct on and as of the date hereof (with the same
force and effect as if made on and as of the date hereof) and with respect to
this Amendment
and the related documentation referenced herein.
8 The Company and the Guarantor each acknowledge and confirm that the
Security Documents and all collateral furnished in connection with Agreement
continue to secure the obligations thereunder, as hereby modified.
9. The Company shall pay all out- of-pocket expenses incurred by the
Bank in connection with the preparation for and closing of the transaction
contemplated under this Amendment, including, without limitation, the fees and
expenses of special counsel for Bank. In addition, BORROWER shall pay any and
all taxes (together with interest and penalties, if any, applicable thereto) and
fees
now or hereafter required in connection with the execution and delivery if the
Agreement, as hereby amended, and all related documents, instruments and
agreements.
10. Except as expressly modified herein, all terms and provisions of the
Agreement, and all other documents, instruments and agreements executed and/or
delivered in connection with the Agreement shall remain unchanged and in full
force and effect. No consent of the Bank hereunder shall operate as a waiver or
continuing consent with respect to any instance or event other than those
specified herein.
11. All covenants, agreements, representations and warranties contained
herein shall be binding upon and inure to the benefit of the parties hereto,
their respective successors and assigns, except that the Company shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Bank.
12. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF ANY RELATED
INSTRUMENTS, AGREEMENTS OR DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE
WITH THE FEDERAL ARBITRATION PRACTICE AND PROCEDURE FOR THE ARBITRATION OF
COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE SPECIAL RULES SET FORTH BELOW IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGEMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
AMENDMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT
HAVING JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY
OF THE COMPANY S DOMICILE AT THE TIME OF THE EXECUTION OF THIS AMENDMENT AND
ADMINISTERED BY J.A.M.S., WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE
OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN
ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED
WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL
ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH
HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
(b) RESERVATION OF RIGHTS. NOTHING IN THE AGREEMENT, AS MODIFIED
BY THIS AMENDMENT, SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY
OTHERWISE APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED
IN THE AGREEMENT, AS MODIFIED BY THIS AMENDMENT; OR (II) BE A WAIVER BY THE BANK
OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY
EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK HERETO (A) TO
EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO
FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN
FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR OBTAIN
SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF
ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THE AGREEMENT, AS MODIFIED BY
THIS AMENDMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION
OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES
SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN
ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment the
day and year first above written.
(CORPORATE SEAL) QUIPP, INC. a Florida
Corporation
Attest: s\ Xxxxxxxxx Xxxxx
By: s\ Xxxxx X. Xxxxxx
As: Controller
As: CEO and President
(CORPORATE SEAL) QUIPP SYSTEMS, INC., a Florida
Corporation
Attest: s\ Xxxxxxxxx Xxxxx
By: s\ Xxxxx X. Xxxx
As: Controller
As: President
NATIONS BANK OF NORTH CAROLINA
N.A. (f/k/a NCNB NATIONAL BANK
OF
NORTH CAROLINA
By: s\ Xxxxxx Mayor
As:
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