EXHIBIT 10.10
AMSOUTH BANK
AMENDED AND RESTATED
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LOAN AGREEMENT
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This Amended and Restated Loan Agreement (the "Agreement") is dated as of
May____, 2000, by and between AmSouth Bank, an Alabama banking association
("Bank") and StrandTek International, Inc., a Florida corporation, formerly
known as RFI Recycled Fibre Industries, Inc. ("Borrower"), Xxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx, Xx., Xxxxxx Xxxxxxx and Xxx Xxxxxx
(collectively known as "Guarantors" or, sometimes, "Shareholders").
RECITALS
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WHEREAS, Bank, Borrower and Shareholders entered into that certain Term
Loan, Revolving Credit and Security Agreement, dated January 18, 1996 (the
"Original Loan Agreement"), which contained the terms and conditions of the
loan, described therein, as modified subsequently thereto on several occasions;
and
WHEREAS, Bank has extended credit to, and Borrower has executed and
delivered to the Bank, several term notes and a revolving note, as further
described herein, and
WHEREAS, the Original Loan Agreement has been modified many times
subsequent to January 18, 1996, and
WHEREAS, the parties hereto wish to amend and restate the Loan Agreement in
accordance with the terms set forth below; and
WHEREAS, it is the desire and intent of Bank, Borrower and Shareholders
that this Amended and Restated Loan Agreement serve as the controlling document
and agreement between the parties as to all outstanding loans from Bank to
Borrower;
NOW, THEREFORE, in consideration of the Loan or Loans described below and
the mutual covenants and agreements contained herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound hereby, Bank, Borrower and
Shareholders agree as follows:
1. DEFINITIONS AND REFERENCE TERMS. In addition to any other terms
defined herein the following terms shall have the meaning set forth with respect
thereto:
A. Accounting Terms. All accounting terms not specifically defined
or specified herein shall have the meanings generally attributed to such
terms under generally accepted accounting principles ("GAAP"), as in effect
from time to time, consistently applied, with respect to the financial
statements referenced in Section 3.H. hereof.
B. Advance. Advance shall mean an advance of proceeds of the LOC
Loan or the Term Loan (both as defined below) to the Borrower pursuant to
this Agreement, on any given Advance Date.
C. Advance Date. Advance Date shall mean the date as of which an
Advance is made.
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D. Affiliate. Affiliate of a named Person shall mean (a) any Person
directly or indirectly owning 5% or more of the voting stock or rights of
such stock or rights; (b) any Person controlling, controlled by or under
common control with such named Person; (c) any officer or director of such
named Person or any Affiliates of the named Person; and (d) any family
member of the named Person or any Affiliate of such named Person.
E. Authorized Representative. Authorized Representative means any of
the President, Chief Executive Officer, the Treasurer, the Secretary, and,
with respect to financial matters, the Chief Financial Officer or
Controller of the Borrower or any Guarantor, as the case may be, or any
other person expressly designed by the Board of Directors of the Borrower
or any Guarantor (or the appropriate committee hereof) as an Authorized
Representative of the Borrower.
F. Basis Point: One Basis Point means the amount equal to .01% (By
way of example, 50 Basis Points shall be equal to one half of one percent,
or .5%)
G. Borrower: StrandTek International, Inc., a Florida corporation,
and any of the Shareholders that appear as Borrower, as documented in each
loan transaction.
H. Borrower's Address: 000 X. Xxxxxx Xxxxx Xxxx, Xxxxxxxx Xxxxxx,
XX 00000 or 00000 X. Xxxxxxxx Xxxxxx, Xxxxxxxx 0, Xxxxxxx, Xxxxxxxx, 60633-
2164.
I. Borrowing Base. Borrowing Base shall mean, at any date or
determination thereof (which date and determination shall be at the sole
discretion of Bank) an amount equal to the sum of (i) 75% of Eligible
Accounts Receivable, less Excluded Receivables, plus (ii) 50% of Eligible
Inventory (based upon the lower of market value or cost) with a maximum of
inventory reliance of $550,000.00. "Excluded Receivables" shall be all
inter-company receivables and, if Borrower has a customer with receivables
over ninety (90) days old, all receivables of that customer will be
excluded.
J. Borrowing Base Certificate. Borrowing Base Certificate shall mean
a certificate executed and certified to be true and correct by an
authorized officer of the Borrower, in a form mutually agreed upon by Bank
and Borrower from time to time, setting forth a calculation of the
Borrowing Base and further affirming Borrower's ongoing compliance as to
all terms and conditions of this Loan Agreement and related Loan Documents.
K. Default Rate. Default Rate shall mean the highest lawful rate of
interest per annum specified in any Note to apply after a default under
such Note.
L. Eligible Accounts. Eligible Accounts shall mean those accounts
receivable which are less than ninety (90) days past invoice date and are
acceptable to bank, in its sole and absolute discretion.
M. Eligible Inventory. Eligible Inventory shall mean inventory
consisting of raw materials and finished goods of the Borrower as to which
the Bank has a first priority perfected security interest of a kind usually
and customarily sold by the Borrower and which is not, because of damage,
age, unmerchantability, obsolescence or any other condition or
circumstance, materially impaired in condition, value or marketability in
the good faith opinion of the Bank or the Borrower. No inventory shall be
Eligible Inventory if any representation, warranty of covenant herein
relating such Inventory is in default.
N. Guarantor. The loans shall be guaranteed by the individuals as
documented in each Loan transaction.
O. Hazardous Materials. Hazardous Materials include all materials
defined as hazardous materials or substances under any local, state or
federal environmental laws, rules or regulations, and petroleum, petroleum
products, oil and asbestos.
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P. Loan. Any loan described in Section 2 hereof and any subsequent
loan which states that it is subject to this Loan Agreement.
Q. Loan Documents. Loan Documents means this Loan Agreement and any
and all promissory notes executed by Borrower in favor of Bank and all
other documents, instruments, guarantees, certificates and agreements
executed and/or delivered by Borrower, any guarantor or third party in
connection with any Loan.
R. Person. Person shall mean any natural person, corporation,
unincorporated organization, trust, joint-stock company, joint venture,
association, company, limited or general partnership, any government, or
any agency or political subdivision of any government.
2. LOANS.
A. Term Loan(s). Previous to this date, Bank has made one or more
loans to Borrower in the aggregate principal face amount of Seven Million Eight
Hundred Thousand Dollars ($7,800,000.00), of which approximately Six Million Two
Hundred Forty Three Thousand and No/100 Dollars ($6,243,000.00) is currently
outstanding. On even date herewith, Bank agrees to make one or more loans to
Borrower for the additional sum of Three Million Dollars ($3,000,000.00). The
obligations to repay the loans are evidenced by a promissory note or notes (the
promissory note or notes together with any and all renewals, extensions or
rearrangements thereof being hereafter collectively referred to as the "Term
Notes") having maturity dates, repayment terms and interest rates as set forth
in each Term Note.
B. LOC Loan. Bank hereby agrees to make (or has made) one or more
loans to Borrower in the aggregate principal face amount of One Million One
Hundred Thousand Dollars ($1,100,000.00). The obligation to repay the loans is
evidenced by a revolving line of credit promissory note or notes dated February
10, 2000 (the line-of-credit promissory note or notes together with any and all
renewals, extensions or rearrangements thereof being hereafter collectively
referred to as the "LOC Note") having a maturity date, repayment terms and
interest rate as set forth in the LOC Note.
i. Revolving Credit Feature. The LOC Loan provides for a
revolving line of credit under which Borrower may from time to time, borrow,
repay and re-borrow funds.
ii. Balance Upon Maturity. Should a balance remain outstanding
at maturity of the LOC Note, Bank, in its sole and absolute discretion, may
require the Borrower to pay the LOC Loan in full, or secure the LOC Loan with
collateral in a form and substance satisfactory to Bank.
iii. Maximum Amount of the Loan. Notwithstanding anything
contained herein to the contrary, the Bank shall not be obligated to lend any
sums which exceed the lesser of either the Borrowing Base or the face amount of
the LOC Note or any renewal, extension or replacement thereof.
iv. Conditions to Each Advance. Prior to the disbursement by
Bank of any advances to Borrower under the LOC Loan, the Bank shall have
determined that there shall exist no event of default; the representations and
warranties contained in the Loan documents shall be true and accurate as of the
date of such advance; there shall have occurred no material adverse changes in
the financial condition of the Borrower or any other person liable for repayment
of the Loan; and the Bank shall have determined that the prospect of payment or
performance of the Loan as not been materially impaired.
v. Advances. Advances under the LOC Note shall be made by
facsimile or written communication to Bank from any Authorized Representative,
together with a Borrowing Base Certificate. Unless otherwise agreed by the Bank,
all advances under the LOC Note will be made by way of a credit into Borrower's
demand deposit account maintained at the Bank. Borrower shall immediately pay to
the Bank on demand any amount by which the Loan exceeds the Borrowing Base or
the face amount of the LOC Note, which ever is less. The Bank may, in its
discretion, make, or permit to remain
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outstanding, Advances to the Borrower in excess of the Borrowing Base and/or the
face amount of the LOC Note, and all such amounts shall be part of the Loan and
Indebtedness, shall bear interest as provided in the Note, shall be payable on
demand and shall be entitled to all rights and security provided for herein, the
Security Agreement and all other Loan Documents.
vi. Overdraft. Should there occur any overdraft of any deposit
account maintained by the Borrower with the Bank, the Bank may, at its option,
disburse funds (whether or not in excess of the Maximum Amount of the Loan) to
eliminate such overdraft and such disbursement shall be deemed an Advance of
Loan proceeds hereunder entitled to all of the benefits of the Loan Documents.
Nothing herein shall be deemed an authorization of or consent to the creation of
an overdraft in any account or create any obligations on the part of the Bank.
The LOC Note and the Term Notes shall hereinafter collectively be
referred to as "Notes" or sometimes "Facilities."
C. Collateral.
i. The Term Loans and the LOC Loan shall all be secured by a
first priority security interest in all accounts, inventory, equipment,
furniture and general intangibles owned by Borrower, or hereafter acquired and
all replacements and substitutions thereof and proceeds therefrom, together with
all funds on deposit with or under the control of the Bank or its agents or
correspondences and all parts, replacements, substitutions, profits, products
and cash and non-cash proceeds of any of the foregoing (including insurance
proceeds payable by reason of loss or damage thereto) in any form and wherever
located.
ii. Borrower hereby reaffirms the existence of, terms of, and
enforceability of, that certain Security Agreement by and between Borrower and
Bank dated January 18, 1996.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Bank to
enter into this Agreement and to make the Loans provided for herein, the
Borrower makes the following representations and warranties, all of which shall
survive the execution and delivery of the Loan Documents:
A. Good Standing. Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida and
each corporation has the power and authority to own its property and to carry on
its business in each jurisdiction in which Borrower does business.
B. Authority and Compliance. Borrower has full power and
authority to execute and deliver the Loan Documents and to incur and perform the
obligations provided for therein, all of which have been duly authorized by all
proper and necessary action of the appropriate governing body of each
corporation. No consent or approval of any public authority or other third party
is required as a condition to the validity of any Loan Document, and Borrower is
in compliance with all laws and regulatory requirements to which it is subject.
C. Binding Agreement. This Agreement and the other Loan
Documents executed by Borrower and Guarantors constitute valid and legally
binding obligations of Borrower and Guarantors, enforceable in accordance with
their terms.
D. Litigation. There is no proceeding involving Borrower or
Guarantors pending or, to the knowledge of Borrower or Guarantors, threatened
before any court or governmental authority, agency or arbitration authority,
except as disclosed to Bank in writing and acknowledged by Bank prior to the
date of this Agreement.
E. No Conflicting Agreements. There is no charter, bylaw, stock
provision, partnership agreement or other document pertaining to the
organization, power or authority of Borrower and no provision of any existing
agreement, mortgage, indenture or contract binding on Borrower or
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affecting its property, which would conflict with or in any way prevent the
execution, delivery or carrying out of the terms of this Agreement and the other
Loan Documents.
F. Ownership of Assets. Borrower has good title to its assets,
and its assets are free and clear of liens, except those granted to Bank and as
disclosed to Bank in writing prior to the date of this Agreement (including the
Sales Agreement).
G. Taxes. All taxes and assessments due and payable by Borrower
have been paid or are being contested in good faith by appropriate proceedings
and the Borrower has filed all tax returns which it is required to file.
H. Financial Statements. The financial statements of Borrower
heretofore delivered to Bank have been prepared in accordance with GAAP applied
on a consistent basis throughout the period involved and fairly present
Borrower's financial condition as of the date or dates thereof, and there has
been no material adverse change in Borrower's financial condition or operations
since December 31, 1999. All factual information furnished by Borrower to Bank
in connection with this Agreement and the other Loan Documents is and will be
accurate and complete on the date as of which such information is delivered to
Bank and is not and will not be incomplete by the omission of any material fact
necessary to make such information not misleading.
I. Place of Business. Borrower's chief executive office is
located at 00000 X. Xxxxxxxx Xxxxxx, Xxxxxxxx 0, Xxxxxxx, Xxxxxxxx, 00000-0000.
J. Environmental. The conduct of Borrower's business operations
and the condition of Borrower's property does not and will not violate any
federal laws, rules or ordinances for environmental protection, regulations of
the Environmental Protection Agency, any applicable local or state law, rule,
regulation or rule of common law or any judicial interpretation thereof relating
primarily to the environment or Hazardous Materials.
K. Continuation of Representations and Warranties. All
representations and warranties made under this Agreement shall be deemed to be
made at and as of the date hereof and at and as of the date of any advance under
any Loan.
4. AFFIRMATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will, unless Bank
consents otherwise in writing (and without limiting any requirement of any
other Loan Document):
A. Financial Statements and Other Information. Maintain a system of
accounting satisfactory to Bank and in accordance with GAAP applied on a
consistent basis throughout the period involved, permit Bank's officers or
authorized representatives to visit and inspect Borrower's books of account and
other records at such reasonable times and as often as Bank may desire, and pay
the reasonable fees and disbursements of any accountants or other agents of Bank
selected by Bank for the foregoing purposes. Unless written notice of another
location is given to Bank, Borrower's books and records will be located at
Borrower's chief executive office set forth above. All financial statements
called for below shall be prepared in form and content acceptable to Bank and by
independent certified public accountants acceptable to Bank.
i. Maintain Borrower's minimum adjusted tangible net worth in an
amount not less than the amount shown below, at all times during the term of
this Agreement as measured quarterly. For the purposes of this Agreement
"tangible net worth" shall mean (a) Total Net Worth (as defined by GAAP) plus
subordinated stockholder debt, less (b) intangible assets (as defined by GAAP),
all computed in accordance with generally accepted accounting principles applied
on a consistent basis.
For March 31, 2001, not less than $1,300,000.00.
For September 30, 2001, not less than $1,200,000.00.
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After September 30, 2001, the covenant minimum shall increase by
$200,000.00 on September 30/th/ of each year.
ii. Maintain a minimum annual debt service coverage ratio of not less
than 1.0 to 1.0, measured quarterly on a rolling four (4) quarter basis
beginning March 31, 200l. For the purpose of this Loan Agreement, "debt service"
shall mean the [sum of Borrower's Earnings Before Interest, Taxes, Depreciation
and Amortization (EBITDA)] divided by the [sum of interest expense plus current
maturities of Long Term Debt].
iii. Maintain a minimum ratio of Funded Debt to EBITDA of no more than
4.0 to 1.0, measured quarterly with EBITDA calculated on a rolling four (4)
quarter basis and Funded Debt calculated simply as of the quarter end. The
first reporting period shall be on March 31, 2001.
In addition, Borrower will:
(1) Furnish to Bank a signed personal financial statement for each
Guarantor on or before March 31 of each year, dated as of the preceding December
31, in a form reasonably satisfactory to the Bank, and a copy of such
Guarantor's personal federal income tax return not later than thirty (30) days
after timely filing.
(2) Furnish to Bank a monthly accounts receivable aging statement
within fifteen (15) days after month end.
(3) Furnish annually to Bank financial statements (including a
balance sheet, and statements of financial condition, income, cash flows and
changes in shareholders' equity), reviewed by an independent certified public
accountant reasonably acceptable to Bank, for each fiscal year of Borrower,
within one hundred twenty (120) days after the close of the Borrower's fiscal
year.
(4) Furnish to Bank annual tax return for the Borrower within thirty
(30) days of the filing of said return.
(5) Furnish to Bank a properly executed Subordination Agreement in
favor of Bank from each stockholder, with respect to any money owed to such
stockholder by Borrower. Such Subordination Agreement shall include the
provision that no interest or principal payments may be made on the subordinate
debt in the event of a default in any Loan hereunder.
(6) Furnish to Bank company prepared financial statements and a
Borrowing Base Certificate for (and executed by an authorized representative of)
Borrower monthly, within fifteen (15) days after month end, containing (a) a
certification that the financial statements of even date are true and correct
and that the Borrower is not in default under the terms of this Agreement, and
(b) computations and conclusions, in such detail as Bank may request, with
respect to compliance with this Agreement, and the other Loan Documents,
including computations of all quantitative covenants.
(7) Furnish to Bank promptly such additional information, reports and
statements respecting the business operations and financial condition of
Borrower and Guarantors, which may include a schedule of payments from Borrower
and Guarantor to subordinated debt holder, respectively, from time to time, as
Bank may reasonably request.
(8) Furnish to Bank promptly within thirty (30) days of quarter end,
quarterly brokerage statements which show that the unencumbered liquidity of
Xxxxx Xxxxxxx exceeds the sum of $10,083,000.00 or the aggregate amount of
Borrower's indebtedness to Bank, whichever is greater.
B. Insurance. Maintain insurance with responsible insurance companies on
such of its properties, in such amounts and against such risks as is customarily
maintained by similar businesses operating in the same vicinity, specifically to
include fire and extended coverage insurance covering all assets, business
interruption insurance, workers compensation insurance and liability insurance,
all to be
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with such companies and in such amounts as are satisfactory to Bank and
providing for at least 30 days prior notice to Bank of any cancellation thereof.
Satisfactory evidence of such insurance will be supplied to Bank prior to
funding under the Loan(s) and 30 days prior to each policy renewal.
C. Existence and Compliance. Maintain its existence, good standing
and qualification to do business, where required and comply with all laws,
regulations and governmental requirements including, without limitation,
environmental laws applicable to it or to any of its property, business
operations and transactions.
D Adverse Conditions or Events. Promptly advise Bank in writing of
(i) any condition, event or act which comes to its attention that would or might
materially adversely affect Borrower's financial condition or operations or
Bank's rights under the Loan Documents, (iii any litigation filed by or against
Borrower, (iii) any event that has occurred that would constitute an event of
default under any Loan Documents and (iv) any uninsured or partially uninsured
loss through fire, theft, liability or property damage in excess of an aggregate
of $50,000.00.
E Taxes and Other Obligations. Pay all of its taxes, assessments
and other obligations, including, but not limited to taxes, costs or other
expenses arising out of this transaction, as the same become due and payable,
except to the extent the same are being contested in good faith by appropriate
proceedings in a diligent manner.
F Maintenance. Maintain all of its tangible property in good
condition and repair and make all necessary replacements thereof; and preserve
and maintain all licenses, trademarks, privileges, permits, franchises,
certificates and the like necessary for the operation of its business.
G Environmental. Immediately advise Bank in writing of (i) any and
all enforcement, cleanup, remedial, removal, or other governmental or regulatory
actions instituted, completed or threatened pursuant to any applicable federal,
state, or local laws, ordinances or regulations relating to any Hazardous
Materials affecting Borrower's business operations; and (ii) all claims made or
threatened by any third party against Borrower relating to damages,
contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Materials. Borrower shall immediately notify Bank of any remedial
action taken by Borrower with respect to Borrower's business operations.
Borrower will not use or permit any other party to use any Hazardous Materials
at any of Borrower's places of business or at any other property owned by
Borrower except such materials as are incidental to Borrower's normal course of
business, maintenance and repairs and which are handled in compliance with all
applicable environmental laws. Borrower agrees to permit Bank, its agents,
contractors and employees to enter and inspect any of Borrower's places of
business or any other property of Borrower at any reasonable times upon three
(3) days prior notice for the purposes of conducting an environmental
investigation and audit (including taking physical samples) to insure that
Borrower is complying with this covenant and Borrower shall reimburse Bank on
demand for the costs of any such environmental investigation and audit. Borrower
shall provide Bank, its agents, contractors, employees and representatives with
access to and copies of any and all data and documents relating to or dealing
with any Hazardous Materials used, generated, manufactured, stored or disposed
of by Borrower's business operations within five (5) days of the request
therefore. Bank shall have the right to require periodic environmental site
inspections of Borrower's plant located at 0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxx 0,
Xxxxxxx, XX 00000-0000, or any future location.
5 NEGATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will not, without the
prior written notice to Bank (and without limiting any requirement of any other
Loan Documents):
A Liens. Grant, suffer or permit any contractual or noncontractual
lien on or security interest in its assets, except in favor of Bank, or fail to
promptly pay when due all lawful claims, whether for labor, materials or
otherwise.
B Extensions of Credit. Make or permit any subsidiary to make, any
loan or advance to any person or entity, or purchase or otherwise acquire, or
permit any subsidiary to purchase or otherwise
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acquire, any capital stock, assets, obligations, or other securities of, make
any capital contribution to, or otherwise invest in or acquire any interest in
any entity, or participate as a partner or joint venturer with any person or
entity, except for the purchase of direct obligations of the United States or
any agency thereof with maturities of less than one year.
C Borrowings. Create, incur, assume or become liable in any manner
for any indebtedness in excess of an aggregate amount of $500,000.00 (for
borrowed money, deferred payment for the purchase of assets, lease payments, as
surety or guarantor for the debt for another, or otherwise) other than to Bank,
except for normal trade debts incurred in the ordinary course of Borrower's
business, and except for existing indebtedness disclosed to Bank in writing and
acknowledged by Bank prior to the date of this Agreement.
D Accounts. Sell, assign or discount any of its Accounts, chattel
paper or any promissory notes held by it other than the discount of such notes
in the ordinary course of business for collection; and shall notify the Bank
promptly in writing with any discount, offset or other deductions not shown on
the fact of an Account invoice and any dispute over an Account, and any
information relating to an adverse change in any debtor's financial condition or
ability to pay its obligations.
E Transactions with Affiliates. Directly or indirectly purchase,
acquire or lease any property from, or sell, transfer or lease any property
to, or otherwise deal with, in the ordinary course of business or otherwise, any
Affiliate (other than a subsidiary); provided, however, that any acts or
transactions prohibited by this Section may be performed or engaged in, after
written notice to the Bank, if upon terms no less favorable to the Borrower or
such subsidiary than if no such relation ship existed. Any such Affiliate may be
a directory, officer, employee of the Borrower or any subsidiary, subject to the
limitations on compensation contained in this section and elsewhere in this
Agreement.
F Dividends and Distributions. Make any distribution (other than
dividends payable in capital stock of Borrower) on any shares of any class of
its capital stock or, apply any of its property or assets to the purchase,
redemption or other retirement of any shares of any class of capital stock
of interest in Borrower, or in any way amend its capital structure.
G Character of Business. Change the general character of business
as conducted at the date hereof, or engage in any type of business not
reasonably related to its business as presently conducted.
H Management Change. Make any substantial change in its present
executive personnel.
6 DEFAULT. Borrower shall be in default under this Agreement and under
each of the other Loan Documents if Borrower, any endorser or any Guarantor of
the Loan or Loans shall default in the payment of any amounts due and owing
under the Loan or Loans or should it fail to timely and properly observe, keep
or perform any term, covenant, agreement or condition in any Loan Document or in
any other loan agreement, promissory note, security agreement, deed of trust,
deed to secure debt, mortgage, assignment or other contract securing or
evidencing payment of any indebtedness of Borrower, any endorser or any
guarantor of any loan to Bank or any affiliate or subsidiary of AmSouth Bank.
7 EVENTS OF DEFAULT The term "Default" or "Event of Default," wherever
used in the Loan Documents, shall mean any one of more of the following events:
a. Default in the payment of any principal, interest, or other
charges with respect to any of the Indebtedness as and when due;
b. Default in the observance or performance of any covenant or
agreement set forth herein or in any agreement, note or instrument heretofore,
now, or hereafter executed by Debtor in favor of Bank;
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c. Any representation, warranty, certificate, schedule or other
information made or furnished by Debtor to Bank herein or pursuant hereto is or
shall be untrue or materially misleading;
d. Loss, theft, damage, or destruction of any material portion
of the Collateral for which there is either no insurance coverage or for which,
in the opinion of Bank, there is insufficient insurance coverage;
e. The making of any levy, seizure, or attachment upon any of
the Collateral;
f. The Debtor or Obligor shall (a) apply for or consent to the
appointment of a receiver, trustee, or liquidator of itself, or of all or a
substantial part of its assets, (b) be unable or admit in writing its inability
to pay its debts as they fall due, (c) make a general assignment for the benefit
of its creditors, (d) be adjudicated a bankrupt or insolvent, or (e) file a
voluntary petition in bankruptcy or a petition or an answer seeking
reorganization or an arrangement with creditors or to take advantage of any
insolvency law or an answer admitting the material allegations of a petition
filed against it in any bankruptcy, reorganization, or insolvency proceeding, or
any corporate action shall be taken by it for the purpose of effecting any of
the foregoing;
g. An order, judgment or decree shall be entered without the
application, approval or consent of the Debtor or Obligor by any court of
competent jurisdiction, approving a petition seeking reorganization of the
Debtor or Obligor or appointing a receiver, trustee, or liquidator of the Debtor
or Obligor of any or a substantial part of its assets and such order, judgment,
or decree shall continue unstayed and in effect for a period of more than thirty
(30) consecutive days;
h. Default in the performance of any financial covenant or
agreement set forth herein;
i. The death or dissolution of the Debtor or Obligor;
j. The net worth of Xxxxx Xxxxxxx declining below
$50,000,000.00; or
k. The unencumbered liquidity of Xxxxx Xxxxxxx falling below
$10,083,000.00 or the aggregate amount of Borrower's indebtedness to Bank.
If any Event of Default shall occur, then or at any time thereafter, the
Bank may declare all Indebtedness of the Debtor or Obligor to be due and
payable, without notice, protest, presentment, or demand, all of which are
expressly waived by Debtor, and Bank shall have any and all other rights and
remedies provided for herein.
8 CROSS-DEFAULT PROVISION. Borrower jointly and severally acknowledges
and agrees that a breach of any term, condition, warranty or covenant herein by
Borrower shall constitute a default under this Loan Agreement. Furthermore, any
breach of or default under this Loan Agreement automatically shall constitute a
default under all the other Loan Documents incident to this Facility; similarly,
any breach or default by Borrower under any of the Loan Documents shall be
deemed a default under all the other Loan Documents and under this Loan
Agreement. A default by Borrower and/or any Guarantor, in their capacity as
borrower or guarantor, under any loan (term, line of credit or otherwise) with
Bank shall constitute a default under this Loan Agreement and all other Loan
Documents incident to this Facility, and a default under this Loan shall
constitute a default under any other loan from Bank to Borrower and/or any
Guarantor. Upon any such breach or default, Bank shall have the right to
exercise any and all remedies allowable under the documents and under Florida
law, and may proceed under any document or may proceed to exercise any specific
remedy without being required to resort to any other remedy allowable by law or
under any specific loan document. Borrower jointly and severally agrees to pay
to Bank all costs of collection in the event of any such breach or default,
including, without limitation, a reasonable attorneys' fee for Bank's legal
counsel as provided in the Loan Documents.
9
9 CROSS-COLLATERALIZATION PROVISION. The Collateral for this Loan also
shall act as collateral for any future loan from Bank to Borrower and, upon
written notice from Bank to Borrower, at any time, the collateral (with the
exception of real estate) for any future loan from Bank to Borrower also shall
secure this Loan.
10 REMEDIES UPON DEFAULT. If an event of default shall occur, Bank shall
have all rights, powers and remedies available under each of the Loan Documents
as well as all rights and remedies available at law or in equity.
11 NOTICES. All notices, requests or demands which any party is required
or may desire to give to any other party under any provision of this Agreement
must be in writing delivered to the other party at the following address:
Borrower: StrandTek International, Inc.
0000 X. Xxxxxxxx Xxxxxx, Xxxxxxxx 0
Xxxxxxx, XX 00000-0000
Attn:______________________________
Fax. No. (312)_____________________
Bank: AmSouth Bank
13535 Feather Xxxxx Xxxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxx, Vice President
Fax No. (000) 000-0000
With copy to: Xxxxxx X. Xxxxxx, Xx., Esquire
Xxx, Zinober, Barnes, Zimmet & Xxxxx, LLP
0000 XxXxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Fax No. (000) 000-0000
or to such other address as any party may designate by written notice to the
other party. Each such notice, request and demand shall be deemed given or made
as follows:
A If sent by mail, upon the earlier of the date of receipt or five
(5) days after deposit in the U.S. Mail, first class postage prepaid;
B If sent by any other means, upon delivery.
12 COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to Bank
immediately upon demand the full amount of all costs and expenses, including
reasonable attorneys' fees (to include outside counsel fees if permitted by
applicable law), incurred by Bank in connection with (a) negotiation and
preparation of this Agreement and each of the Loan Documents, and (b) all other
costs and attorneys' fees incurred by Bank for which Borrower is obligated to
reimburse Bank in accordance with the terms of the Loan Documents, whether suit
be brought or not and whether incurred at trial or on appeal, and all costs of
repossession, storage, disposition, protection and collection of Collateral. If
the Borrower should fail to pay any tax or other amount required by this
Agreement to be paid or which may be reasonable necessary to protect or preserve
any Collateral or any Borrower's or Bank's interest therein, the Bank may make
such payment and the amount thereof shall be payable on demand, shall bear
interest at the Default Rate from the date of demand until paid and shall be
deemed to be Indebtedness entitled to the
10
benefit and security of the Loan Documents. In addition, the Borrower agrees to
pay and save the Bank harmless against any liability for payment of any state
documentary stamp taxes, intangible taxes or similar taxes (including interest
or penalties, if any) which may now or thereafter be determined to be payable in
respect to the execution, delivery or recording of any Loan Document or the
making of any Advance, whether originally thought to be due or not, and
regardless of any mistake of fact or law on the part of the Bank or the Borrower
with respect to the applicability of such tax. The provisions of this section
shall survive payment in full of the Loans and termination of this Agreement.
13 MISCELLANEOUS. Borrower and Bank further covenant and agree as
follows, without limiting any requirement of any other Loan Document:
A Cumulative Rights and No Waiver. Each and every right granted to
Bank under any Loan Document, or allowed it by law or equity shall be cumulative
of each other and may be exercised in addition to any and all other rights of
Bank, and no delay in exercising any right shall operate as a waiver thereof,
nor shall any single or partial exercise by Bank of any right preclude any other
or future exercise thereof or the exercise of any other right. Borrower
expressly waives any presentment, demand, protest or other notice of any kind,
including but not limited to notice of intent to accelerate and notice of
acceleration. No notice to or demand on Borrower in any case shall, of itself
entitle Borrower to any other or future notice or demand in similar or other
circumstances.
B Applicable Law. This Loan Agreement and the rights and
obligations of the parties hereunder shall be governed by and interpreted in
accordance with the laws of Florida and applicable United States, federal law.
C Amendment. No modification, consent, amendment or waiver of any
provision of this Loan Agreement, nor consent to any departure by Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
an officer of Bank, and then shall be effective only in the specified instance
and for the purpose for which given. This Loan Agreement is binding upon
Borrower, its successors and assigns, and inures to the benefit of Bank, its
successors and assigns; however, no assignment or other transfer of Borrower's
rights or obligations hereunder shall be made or be effective without Bank's
prior written consent, nor shall it relieve Borrower of any obligations
hereunder. There is no third party beneficiary of this Loan Agreement.
D Documents. All documents, certificates and other items required
under this Loan Agreement to be executed and/or delivered to Bank shall be in
form and content satisfactory to Bank and its counsel.
E Partial Invalidity. The unenforceability or invalidity of any
provision of this Loan Agreement shall not affect the enforceability or validity
of any other provision herein and the invalidity or unenforceability of any
provision of any Loan Document to any person or circumstance shall not affect
the enforceability or validity of such provision as it may apply to other
persons or circumstances.
F Indemnification. Notwithstanding anything to the contrary
contained in Section 12(G), Borrower shall indemnify, defend and hold Bank and
its successors and assigns harmless from and against any and all claims,
demands, suits, losses, damages, assessments, fines, penalties, costs or other
expenses (including reasonable attorneys' fees and court costs) arising from or
in any way related to any of the transactions contemplated hereby, including but
not limited to actual damage to the environment, agency costs of investigation,
personal injury or death, or property damage, due to a release or alleged
release of Hazardous Materials, arising Corn Borrower's business operations, any
other property owned by Borrower or in the surface or ground water arising from
Borrower's business operations, or gaseous emissions arising from Borrower's
business operations or any other condition existing or arising from Borrower's
business operations resulting from the use or existence of Hazardous Materials,
whether such claim proves to be true or false. Borrower further agrees that its
indemnity obligations shall include, but are not limited to, liability for
damages resulting from the personal injury or death of an employee of the
Borrower, regardless of whether the Borrower has paid the employee under the
workmen's compensation laws of any state or other similar federal or state
legislation for the protection of employees. The term "property damage" as used
11
in this paragraph includes, but is not limited to, damage to any real or
personal property of the Borrower, the Bank, and of any third parties. The
Borrower's obligations under this paragraph shall survive the repayment of the
Loan and any deed in lieu of foreclosure or foreclosure of any Deed to Secure
Debt, Deed of Trust, Security Agreement or Mortgage securing the Loan.
G Survivability. All covenants, agreements, representations and
warranties made herein or in the other Loan Documents shall survive the making
of the Loan and shall continue in full force and effect so long as the Loan is
outstanding or the obligation of the Bank to make any advances under the Line
shall not have expired.
H Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original and all of
which when taken together shall constitute one and the same instrument.
14 No Oral Agreement. This written loan agreement and other loan
documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties.
[Signatures contained on next page]
12
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of the date
first above written.
BORROWER: BANK:
StrandTek International, Inc., a Florida AmSouth Bank, an Alabama banking
corporation corporation
By:__________________________________(Seal) By:__________________________(Seal)
Name:______________________________________ Name:______________________________
Its:_______________________________________ Its:_______________________________
[Corporate Seal]
SHAREHOLDERS:
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Xx.
Xxxxxx Xxxxxxx
Xxx Xxxxxx
13
AFFIDAVIT OF OUT-OF-STATE EXECUTION AND DELIVERY
STATE OF ________________
COUNTY OF ________________
BEFORE ME, the undersigned authority, this day personally appeared
XXXXXX XXXXXX ("Affiant"), who, being first duly sworn, upon oath, says:
1. On the date hereof, Affiant, on behalf of Borrower, executed that
certain Amended and Restated Loan Agreement and that certain Supplemental
Note No. 7 ("Loan Documents"), in the principal amount of Three Million and
No/100 Dollars ($3,000,000.00), in favor of AMSOUTH BANK ("AmSouth") in the
city of ______________, located in the state and county above written, and
Affiant then delivered the Loan Documents to Xxxxxx X. Xxxxxxx, as Agent of
AmSouth, in Birmingham, Alabama.
DATED this ____________day of May, 2000.
FURTHER AFFIANT SAYETH NOT.
________________________________________________________________________________
XXXXXX XXXXXX
SWORN TO and subscribed before me this ____________day of May, 2000,
by XXXXXX XXXXXX, who ___ is personally known to me or ___ who has produced
_______________________ as identification.
________
Notary Public, State of _______________________
________________________________________________________________________________
Affix Notary Seal (stamped, typed/printed name)
My Commission Expires:_________________________
AFFIDAVIT OF OUT-OF-STATE EXECUTION AND DELIVERY
STATE OF ________________
COUNTY OF ________________
BEFORE ME, the undersigned authority, this day personally appeared XXXXXXX
X. XXXXXXX ("Affiant"), who, being first duly sworn, upon oath, says:
1. On the date hereof, Affiant, on behalf of Borrower, executed that
certain Amended and Restated Loan Agreement and that certain Supplemental Note
No. 7 ("Loan Documents"), in the principal amount of Three Million and No/100
Dollars ($3,000,000.00), in favor of AMSOUTH BANK ("AmSouth") in the city of
__________________, located in the state and county above written, and Affiant
then delivered the Loan Documents to Xxxxxx X. Xxxxxxx, as Agent of AmSouth, in
Birmingham, Alabama.
DATED this ___________day of May, 2000.
FURTHER AFFIANT SAYETH NOT.
________________________________________________________________________________
XXXXXXX X. XXXXXXX
SWORN TO and subscribed before me this ________day of May, 2000, by
XXXXXXX X. XXXXXXX, who ___ is personally known to me or ___ who has produced
_____________________ as identification.
________
Notary Public, State of _______________________
________________________________________________________________________________
Affix Notary Seal (stamped, typed/printed name)
My Commission Expires:_________________________
AFFIDAVIT OF OUT-OF-STATE EXECUTION AND DELIVERY
STATE OF ________________
COUNTY OF ________________
BEFORE ME, the undersigned authority, this day personally appeared XXXXXXX
X. XXXXXXX, XX. ("Affiant"), who, being first duly sworn, upon oath, says:
1. On the date hereof, Affiant, on behalf of Borrower, executed that
certain Amended and Restated Loan Agreement and that certain Supplemental Note
No. 7 ("Loan Documents"), in the principal amount of Three Million and No/100
Dollars ($3,000,000.00), in favor of AMSOUTH BANK ("AmSouth") in the city of
__________________, located in the state and county above written, and Affiant
then delivered the Loan Documents to Xxxxxx X. Xxxxxxx, as Agent of AmSouth, in
Birmingham, Alabama.
DATED this ___________day of May, 2000.
FURTHER AFFIANT SAYETH NOT.
________________________________________________________________________________
XXXXXXX X. XXXXXXX, XX.
SWORN TO and subscribed before me this________day of May, 2000, by XXXXXXX
X. XXXXXXX, XX., who ___ is personally known to me or ___ who has produced
_____________________ as identification.
________
Notary Public, State of _______________________
________________________________________________________________________________
Affix Notary Seal (stamped, typed/printed name)
My Commission Expires:_________________________
AFFIDAVIT OF OUT-OF-STATE EXECUTION AND DELIVERY
STATE OF ________________
COUNTY OF ________________
BEFORE ME, the undersigned authority, this day personally appeared XXX
XXXXXX ("Affiant"), who, being first duly sworn, upon oath, says:
1. On the date hereof, Affiant, on behalf of Borrower, executed that
certain Amended and Restated Loan Agreement and that certain Supplemental Note
No. 7 ("Loan Documents"), in the principal amount of Three Million and No/100
Dollars ($3,000,000.00), in favor of AMSOUTH BANK ("AmSouth") in the city of
__________________, located in the state and county above written, and Affiant
then delivered the Loan Documents to Xxxxxx X. Xxxxxxx, as Agent of AmSouth, in
Birmingham, Alabama.
DATED this ___________day of May, 2000.
FURTHER AFFIANT SAYETH NOT.
________________________________________________________________________________
XXX XXXXXX
SWORN TO and subscribed before me this________day of May, 2000, by XXX
XXXXXX, who ___ is personally known to me or ___ who has produced _____________
_______ as identification.
________
Notary Public, State of _______________________
________________________________________________________________________________
Affix Notary Seal (stamped, typed/printed name)
My Commission Expires:_________________________
AFFIDAVIT OF OUT-OF-STATE EXECUTION AND DELIVERY
STATE OF ________________
COUNTY OF ________________
BEFORE ME, the undersigned authority, this day personally appeared XXXXX X.
XXXXXXX ("Affiant"), who, being first duly sworn, upon oath, says:
1. On the date hereof, Affiant, on behalf of Borrower, executed that
certain Amended and Restated Loan Agreement and that certain Supplemental Note
No. 7 ("Loan Documents"), in the principal amount of Three Million and No/100
Dollars ($3,000,000.00), in favor of AMSOUTH BANK ("AmSouth") in the city of
__________________, located in the state and county above written, and Affiant
then delivered the Loan Documents to Xxxxxx X. Xxxxxxx, as Agent of AmSouth, in
Birmingham, Alabama.
DATED this ___________day of May, 2000.
FURTHER AFFIANT SAYETH NOT.
________________________________________________________________________________
XXXXX X. XXXXXXX
SWORN TO and subscribed before me this________day of May, 2000, by XXXXX X.
XXXXXXX, who ___ is personally known to me or ___ who has produced
_____________________ as identification.
________
Notary Public, State of _______________________
________________________________________________________________________________
Affix Notary Seal (stamped, typed/printed name)
My Commission Expires:_________________________
