Exhibit 10.45
CREDIT AND SECURITY AGREEMENT
Dated as of August 1, 1997
Between
LA-MAN CORPORATION
and
SOUTHTRUST BANK, NATIONAL ASSOCIATION
Regarding $2,500,000
Variable/Fixed Rate Credit Enhanced Notes
This Credit and Security Agreement was prepared by Xxxxx X. Xxxxx, of Monaco,
Smith, Hood, Perkins, Loucks, and Xxxxx, 000 Xxxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxxx Xxxxx, Xxxxxxx 00000
Exhibit 10.45
TABLE OF CONTENTS
1. Defined Terms and General Provisions:.....................................1
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1.1. Definitions.........................................................1
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1.2. Principals of Interpretation........................................5
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1.3. Date of Credit Agreement............................................6
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1.4. Separability Clause.................................................6
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2. Issuance of Letter of Credit; Reimbursement and Fees:.....................7
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2.1. Issuance of Letter of Credit........................................7
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2.2. Reimbursement.......................................................7
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2.3. Commissions and Fees................................................7
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2.4. Increased Costs.....................................................8
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2.5. Place and Time of Payments..........................................9
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2.6. Late Payments.......................................................9
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2.7. Computation of Charges.............................................10
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2.8. Statements of Account..............................................10
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2.9. Obligations of Issuer Absolute.....................................10
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2.10. Pledged Notes.....................................................11
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3. Conditions Precedent to Issuance of Letter of Credit:....................12
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3.1. Conditions Precedent...............................................12
3.2. Additional Matters.................................................14
4. Security for Obligations:................................................15
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4.1. Security...........................................................15
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4.2. Further Assurances.................................................15
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5. Representations, Warranties and General Covenants:.......................15
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5.1. Organization and Qualification.....................................15
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5.2. Corporate Power and Authorization..................................15
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5.3. Enforceability.....................................................16
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5.4. Financial Statements...............................................16
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5.5. Taxes..............................................................16
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5.6. Title to Collateral................................................16
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5.7. Place of Business..................................................16
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5.8. Full Disclosure....................................................17
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5.9. Issuer's Name......................................................17
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5.10. Existing Debt.....................................................17
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5.11. Insolvency........................................................17
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5.12. Environmental Matters.............................................17
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5.13. No Approval.......................................................18
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5.14. Mortgage and Security Agreement...................................18
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5.15. Representations True..............................................18
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Exhibit 10.45
6. Affirmative Covenants of Issuer:.........................................18
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6.1. Insurance..........................................................18
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6.2. Corporate Existence: Qualification.................................19
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6.3. Taxes..............................................................19
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6.4. Compliance with Laws...............................................19
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6.5. Annual Financial Statements........................................19
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6.6. Interim Financial Statements.......................................20
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6.7. Visits and Inspections.............................................20
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6.8. Payments of Obligations............................................21
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6.9. Conduct of Business................................................21
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6.10. Maintenance of Properties.........................................21
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6.11. Additional Documents..............................................21
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6.12. Notice to Credit Obligor..........................................21
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6.13. Mortgage and Security Agreement...................................21
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6.14. Maintenance of Remarketing Agreement..............................21
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7. Negative Covenants of Issuer:............................................22
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7.1. Indebtedness.......................................................22
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7.2. Liens and Security Interests.......................................22
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7.3. Mortgage and Security Agreement....................................22
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7.4 Revolving Letter-of-Credit Note....................................22
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8. Events of Default and Remedies:..........................................22
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8.1. Events of Default..................................................22
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8.2. Remedies...........................................................25
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8.3. Additional Rights..................................................25
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8.4. Acceleration of Reimbursement......................................26
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8.5. Waivers; Application of Proceeds...................................26
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8.6. No Remedy Exclusive................................................27
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8.7. Agreement to Pay Attorneys' Fees...................................27
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8.8. No Additional Waiver Implied by One Waiver.........................27
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8.9. Remedies Subject to Applicable Law.................................27
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9. Indemnification: Liability of Credit Obligor:...........................27
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9.1. General Matters....................................................27
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9.2. Letter of Credit Matters...........................................28
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9.3. Liability of the Credit Obligor....................................28
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10. Miscellaneous:...........................................................29
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10.1. Continuing Obligation.............................................29
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10.2. Costs and Expenses................................................29
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10.3. Headings..........................................................30
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10.4. No Usury..........................................................30
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10.5. Survival of Covenants.............................................30
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10.6. Addresses.........................................................31
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10.7. Venue and Jurisdiction............................................31
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Exhibit 10.45
10.8. Controlling Law...................................................31
10.9. Participation.....................................................31
10.10. Miscellaneous....................................................32
10.11. Waiver of Right to Trial by Jury.................................32
11. Survival:................................................................32
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Exhibit 10.45
CREDIT AND SECURITY AGREEMENT
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THIS CREDIT AND SECURITY AGREEMENT dated as of August 1, 1997, is entered
into by LA-MAN CORPORATION, a Nevada corporation, (the "Issuer"), and SOUTHTRUST
BANK, NATIONAL ASSOCIATION, a national banking association (the "Credit
Obligor").
RECITALS:
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The Issuer has applied to the Credit Obligor for a $2,570,000 letter of
credit facility to secure those certain $2,500,000 La-Man Corporation
Variable/Fixed Rate Credit Enhanced Notes (the "Notes"), said Notes to be issued
pursuant to a Trust Indenture between La-Man Corporation ("Issuer") and
SouthTrust Bank, National Association, as Trustee ("Trustee") dated as of August
1, 1997 (the "Indenture").
The Issuer's obligations under this Agreement will be secured by the
collateral and interests described herein, as well as by that certain Real
Estate Mortgage and Security Agreement executed in favor of the Credit Obligor
(variously referred to therein as "SouthTrust", "Mortgagee", or "Secured Party")
by the Issuer (variously referred to therein as the "Mortgagor", "Issuer", or
"Debtor"), and the Guarantors (variously referred to respectively therein as the
"Mortgagor", the "Debtor" or the "Debtors") dated as of August 1, 1997 and
granting a first Lien on the Collateral in favor of the Credit Obligor.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Credit Obligor to issue the Letter of Credit, the Issuer and the Credit Obligor
hereby covenant, agree and bind themselves as follows:
1. DEFINED TERMS AND GENERAL PROVISIONS:
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1.1. Definitions. For all purposes of this Agreement, except as
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otherwise expressly provided or unless the context otherwise requires, the
following terms, shall have the following meanings when used herein:
Affiliate - any director or officer of the Issuer or any Person who,
directly, indirectly or beneficially, owns 10% or more of the capital stock of
the Issuer or any member of the immediate family of any such officer, director
or stockholder, or any corporation or other entity which is controlled by,
controls, or is under common control with the Issuer, including, without
limitation, the Guarantors.
Base Rate - the rate of interest designated by SouthTrust Bank, National
Association, periodically as its "Base Rate." The Base Rate is not necessarily
the lowest rate charged by such bank.
Exhibit 10.45
Collateral - the Real Estate and the "Collateral" as described in the
Mortgage and Security Agreement.
Collateral Assignment of Rents and Leases - a collateral pledge and
assignment of the rents, revenues, issues and profits derived from the Real
Estate dated as of August 1, 1997 executed by the Issuer and the Guarantor, Xxx
Xxxx Industries, Inc., in favor of Credit Obligor.
Credit Agreement or Agreement - this Credit and Security Agreement as
originally executed or as it may from time to time be supplemented, modified or
amended by one or more instruments entered into pursuant to the applicable
provisions hereof.
Credit Amount - the maximum aggregate amount available to be drawn under
the Letter of Credit, as reduced from time to time and reinstated from time to
time pursuant to the terms and conditions of the Letter of Credit.
Credit Documents shall mean collectively this Credit Agreement, the
Mortgage and Security Agreement, the Guaranty Agreement, the Indemnity
Agreement, the Collateral Assignment of Rents and Leases, and all agreements,
documents, guaranties, instruments, notes, notices, and other writings executed
and delivered by the Issuer or any other person or persons which evidence or
provide security for (i) the obligations of the Issuer with respect to the
Letter of Credit, including any amendments or supplements to any thereof from
time to time entered into pursuant to the applicable provisions thereof, until a
Substitute Letter of Credit shall have been accepted by the Trustee, and
thereafter "Credit Documents" shall mean collectively all agreements, documents,
guaranties, instruments, notes, notices, and other writings which evidence or
provide security for the obligations of the Issuer with respect to such
Substitute Letter of Credit, and (ii) the Obligations.
Credit Facilities - the Letter of Credit to be issued for the benefit of
the Issuer pursuant to Section 2.1 hereof, together with the obligation of the
Issuer to make reimbursement therefor pursuant to this Agreement and all other
obligations of the Issuer hereunder with respect to the Letter of Credit.
Credit Obligor - SouthTrust Bank, National Association, a national banking
association, in the capacity as issuer of the Letter of Credit, and its
successors and assigns.
Credit Obligor Indebtedness shall mean all indebtedness or obligations of
the Issuer to the Credit Obligor under the Credit Documents including without
limitation (i) the Issuer's obligation to reimburse the Credit Obligor for draws
made under the Letter of Credit and (ii) the Issuer's obligation to pay fees and
charges for the issuance and continuation of the Letter of Credit and (iii) the
Issuer's indebtedness or obligations with respect to the Obligations.
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Exhibit 10.45
Default Rate - the rate of interest applicable to overdue amounts pursuant
to Section 2.6 hereof.
Drawing - any drawing under or with respect to the Letter of Credit.
Event of Default - those events enumerated in Section 8.1 hereof. An Event
of Default shall "exist" if an Event of Default shall have occurred and be
continuing.
Financing Documents - this Agreement, the Indenture, the Notes, the
Guaranty Agreement, and the Credit Documents, together with each and every
mortgage, deed of trust, guarantee, note, security agreement, financing
statement or other instrument executed and delivered in connection with issuance
of the Notes or to evidence or to secure the obligations of the Issuer with
respect to the Notes, under the Indenture, or hereunder.
Financing Participants -the Issuer, the Credit Obligor, the Trustee, the
holders of the Notes, the Registrar of the Notes and the Remarketing Agent (as
defined in the Indenture).
Guarantors - Xxx Xxxx Industries, Inc., a Florida corporation; Xxx Xxxx
Industries of Nevada, Inc., a Nevada corporation; Nevada SEMCO, Inc., a Nevada
corporation; X. X. Xxxxxxx, Corporation, a Florida corporation; X. X. Xxxxxxx
Industries, Inc., a Florida corporation; Vision Trust Marketing, Inc., a Florida
corporation; and Certified Maintenance Service, Inc., a Florida corporation; all
jointly and severally.
Guaranty Agreement - the unconditional guaranty agreement executed by
Guarantors dated as of August 1, 1997 in favor of Credit Obligor in which said
Guarantors guarantee the due and prompt payment of all Obligations of the Issuer
to Credit Obligor, and any additional guaranty agreements which may be executed
by any of said Guarantors from time to time.
Indemnity Agreement - that certain indemnity agreement executed by the
Issuer and the Guarantor, Xxx Xxxx Industries, Inc., dated as of August 1, 1997
in favor of Credit Obligor covering liability to the Credit Obligor for
environmental matters relating to the Real Estate in form and substance
satisfactory to Credit Obligor.
Indenture - that certain Trust Indenture between the Issuer and Trustee
dated as of August 1, 1997, pursuant to which the Notes will be issued.
Issuer - La-Man Corporation, a Nevada corporation.
Letter of Credit - Irrevocable Letter of Credit No. SB-1326 in the form of
Exhibit A, and all substitute letters of credit issued therefor under the terms
hereof, issued by the Credit Obligor to the Trustee with respect to the Notes.
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Exhibit 10.45
Lien - any interest in property (real, personal or mixed, and tangible or
intangible) securing an obligation owed to, or a claim by, a Person other than
the owner of the property, whether such interest is based on the common law,
statute or contract, and including, but not limited to, a security interest,
security title xxXxxx arising from a security agreement, mortgage, deed of
trust, deed to secure debt, encumbrance, pledge, conditional sale or trust
receipt or a lease, consignment or bailment for security purposes. The term
"Lien" shall include covenants, conditions, restrictions, leases and other
encumbrances affecting any property. For the purpose of this Agreement, the
Issuer shall be deemed to be the owner of any property which it has acquired or
holds subject to a conditional sale agreement or other arrangement pursuant to
which title to the property has been retained by or vested in some other Person
for security purposes.
Mortgage and Security Agreement- that certain Real Estate Mortgage and
Security Agreement dated as of August 1, 1997, executed by the Issuer and the
Guarantors in favor of Credit Obligor wherein the Issuer and the Guarantors are
granting to the Credit Obligor a security interest in, and first lien upon,
certain real estate located in Volusia County, Florida and certain business
assets comprised of tangible and intangible personal property owned by the
Issuer and the Guarantors, respectively.
Note shall mean any Note authenticated and delivered pursuant to the
Indenture.
Notes shall mean the $2,500,000 Variable/Fixed Rate Credit Enhanced Notes
authorized to be issued by the Issuer pursuant to the Indenture.
Obligations - all indebtedness or obligations of the Issuer to the Credit
Obligor of every description, including indebtedness or obligations of the
Issuer to the Credit Obligor under this Agreement or secured hereby by the
Mortgage and Security Agreement, including without limitation (i) the Issuer's
obligation to reimburse the Credit Obligor for draws made under the Letter of
Credit, (ii) the Issuer's obligation to pay fees and charges for the issuance
and continuation of the Letter of Credit, (iii) the Issuer's obligation to pay
the Revolving Line-of-Credit Note, and (iv) all other loans, advances, debts,
liabilities, obligations, covenants and duties owing, arising, due or payable
from the Issuer to Credit Obligor of any kind or nature, present or future,
whether or not evidenced by any note, guaranty or other instrument, whether
arising under this Agreement, any of the Credit Documents or any of the other
Financing Documents or otherwise, whether direct or indirect (including those
acquired by assignment), absolute or contingent, primary or secondary, due or to
become due, now existing or hereafter arising and however evidenced or acquired,
including, without limitation, those evidenced by or reflected in the Mortgage
and Security Agreement or the Notes referenced therein. The term includes,
without limitation, all interest, charges, expenses, fees, attorneys' fees and
any other sums chargeable to the Issuer under any of the Financing Documents and
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Exhibit 10.45
all rights Credit Obligor may at any time or times have to reimbursement in
connection with any letter of credit or guaranty issued for the Issuer's
benefit.
Permitted Liens - shall mean (i) any Lien which provides security for the
Obligations, (ii) any purchase money security interest in favor of the vendor of
tangible personal property constituting any part of the Collateral, (iii) Liens
for ad valorem, tangible and intangible property taxes on the Collateral not
then delinquent, (iv) Liens characterized as "Miscellaneous Liens" under Part
II, Chapter 713, Florida Statutes, if paid or satisfied in the normal course of
business, and (v) those matters set forth in Schedule B of the title policy
referenced in Section 3.1 (i) of this Agreement.
Person - an individual, partnership, corporation, joint stock company,
firm, land trust, business trust, limited liability company, unincorporated
organization, or other business entity, or a government or agency or political
subdivision thereof.
Plan - an employee benefit plan now or hereafter maintained for employees
of the Issuer that is covered by Title IV of ERISA.
Pledged Notes - Notes purchased pursuant to the optional or mandatory
tender provisions of the Indenture with money drawn under the Letter of Credit.
Real Estate - the real property and interests described in the Mortgage and
Security Agreement.
Reimbursement Acceleration - as defined in Section 8.4 hereof.
Revolving Line-of-Credit Note - that certain revolving line-of-credit
promissory note from the Issuer, as "Borrower", in favor of the Credit Obligor,
as "Lender" in the principal sum of up to $1,300,000 of even effective date with
this Agreement, the payment and performance of which is unconditionally
guaranteed by the Guarantors.
Solvent shall mean, when used with respect to any Person, that (i) such
Person does not intend to incur, and does not believe and has no reason to
believe that it will incur, debts beyond its ability to pay as they become due;
(ii) the sum of such Person's assets is greater than all of such Person's
liabilities at fair valuation; (iii) such Person has sufficient cash flow to
enable it to pay its debts as they become due; and (iv) such Person does not
have unreasonably small capital to carry on such Person's business as
theretofore operated and all businesses in which such Person is about to engage.
"Fair valuation" is intended to mean that value which can be obtained if the
assets are sold within a reasonable time in arm's-length transactions in an
existing and nontheoretical market.
SouthTrust - SouthTrust Bank, National Association, a national banking
association.
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Exhibit 10.45
Stated Expiration Date - the date on which the Letter of Credit will, by
its terms, expire, or such earlier date as provided herein or in the Letter of
Credit if said Letter of Credit is terminated on an earlier date in accordance
with its terms.
Tendered Notes - Notes tendered (or deemed tendered) for purchase pursuant
to the optional or mandatory tender provisions of the Indenture.
Trustee - SouthTrust Bank, National Association, a National banking
association, in its capacity as trustee under the Indenture. and its successors
and assigns.
1.2. Principles of Interpretation. The following principles shall
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govern the interpretation of this Agreement:
(a) The terms defined in this Article have the meanings
assigned to them in this Article. Singular terms shall include the plural as
well as the singular and vice versa.
(b) All accounting terms not otherwise defined herein have the
meanings assigned to them, and all computations herein provided for shall be
made, in accordance with generally accepted accounting principles. All
references herein to "generally accepted accounting principles" or "GAAP" refer
to such principles as they exist at the date of application thereof.
(c) All references in this instrument to designated "articles,"
"sections" and other subdivisions are to the designated articles, sections and
subdivisions of this instrument as originally executed.
(d) The terms "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular article, section or other subdivision.
(e) Capitalized terms used herein but not otherwise defined
herein shall have the respective meanings ascribed to them in the Indenture.
1.3. Date of Credit Agreement. The date of this Agreement is
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intended as and for a date for the convenient identification of this Agreement
and is not intended to indicate that this Agreement was executed and delivered
on said date.
1.4 Separability Clause. If any provision in this Agreement shall
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be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
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Exhibit 10.45
2. ISSUANCE OF LETTER OF CREDIT; REIMBURSEMENT AND FEES:
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2.1. Issuance of Letter of Credit.
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(a) The Issuer hereby requests and instructs the Credit Obligor
to issue the Letter of Credit substantially in the form provided in Exhibit A
hereto. The Credit Obligor hereby agrees so to issue the Letter of Credit,
subject to the terms and conditions of this Agreement.
(b) The Letter of Credit shall be issued to the Trustee on the
date of delivery of the Notes to the original purchaser or purchasers thereof
from the Issuer.
(c) The Credit Obligor shall be under no obligation to extend
the Stated Expiration Date of the Letter of Credit beyond August 15, 2000. The
Credit Obligor, at its sole discretion, may elect to extend the Stated
Expiration Date of the Letter of Credit to such date as the Credit Obligor shall
determine upon the Credit Obligor's receipt of a written notice from the Issuer
requesting such extension and upon the Issuer's payment to the Credit Obligor of
a fee for such extension, which fee shall be determined by the Credit Obligor in
its sole discretion. Provided a written notice from the Issuer requesting such
extension is delivered to the Credit Obligor not less than 180 days prior to the
Stated Expiration Date, the Credit Obligor shall advise the Issuer in writing
not less than 150 days prior to the Stated Expiration Date of its intentions
regarding the Issuer's request.
2.2. Reimbursement. On each date that the Credit Obligor honors any
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Drawing under the Letter of Credit, the Issuer shall immediately reimburse the
Credit Obligor for the amount of such Drawing.
2.3. Commissions and Fees.
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(a) As consideration for the issuance of the Letter of Credit,
the Issuer shall pay to the Credit Obligor commissions at the rate of one
percent (1.0%) per annum on the Credit Amount available under the Letter of
Credit existing on the date the commission is due. Such commissions shall be
payable in advance, on the date the Letter of Credit is issued and thereafter on
the fifteenth day of each August, throughout the term of the Letter of Credit.
The commission payable on each due date specified in this subsection shall be
calculated on the assumption that the Credit Amount available on such due date
will be available for the entire period for which such commission is payable.
The commission payable on the issuance date of the Letter of Credit shall be
prorated for the period ending August 15, 1998.
(b) On each date that a draft is honored under any Letter of
Credit, the Issuer shall pay to the Credit Obligor a transaction fee of $150.00.
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Exhibit 10.45
(c) On each date that any Letter of Credit is transferred in
accordance with its terms, the Issuer shall pay to the Credit Obligor such
amount as shall at the time of such transfer then be the charge which the Credit
Obligor is customarily making for transfers of similar letters of credit.
2.4. Increased Costs.
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(a) If, after the date of delivery of this Agreement, any
change in any law or regulation or in the interpretation, administration or
enforcement thereof by any court or governmental authority charged with the
administration thereof or any action by any governmental authority (whether or
not constituting or resulting from such change) shall either:
(1) impose, modify or deem applicable any reserve,
assessment, special deposit or similar requirement against letters of credit
issued by the Credit Obligor; or
(2) impose on the Credit Obligor any other condition
regarding this Agreement or the Letter of Credit;
and the result of any such event shall be to increase the cost to the Credit
Obligor of issuing or maintaining the Letter of Credit (which increase in cost
shall be the result of the Credit Obligor's reasonable allocation of the
aggregate of such cost increases resulting from such events and shall be
calculated without giving effect to any participation granted in the Letter of
Credit), then, upon demand by the Credit Obligor, the Issuer shall immediately
pay to the Credit Obligor from time to time, as specified by the Credit Obligor
in writing, such additional amounts which shall be sufficient to compensate the
Credit Obligor for such increased costs.
The Credit Obligor shall deliver to the Issuer a certificate as to such
increased costs incurred by the Credit Obligor as a result of any event referred
to in this subsection (a), and such certificate shall be conclusive, absent
manifest error, as to the amount thereof. In making the determination
contemplated by such certificate, the Credit Obligor may make such reasonable
estimates, assumptions, allocations and the like that the Credit Obligor deems
to be appropriate.
(b) If, after the date of this Agreement, the Credit Obligor
shall have determined that the adoption or implementation of any applicable law,
rule or regulation regarding capital adequacy, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by the Credit Obligor with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the Credit Obligor's capital, on the
Credit Facilities or otherwise, as a consequence of its obligations hereunder
and the Credit Facilities to a
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Exhibit 10.45
level below that which the Credit Obligor could have achieved but for such
adoption, change or compliance (taking into consideration the Credit Obligor's
policies with respect to capital adequacy) by an amount deemed by the Credit
Obligor to be material, then from time to time, promptly upon demand by the
Credit Obligor, the Issuer hereby agrees to pay the Credit Obligor such
additional amount or amounts as will compensate the Credit Obligor for such
reduction. A certificate of the Credit Obligor claiming compensation under this
subsection and setting forth the additional amount or amounts to be paid to it
hereunder shall be conclusive absent manifest error. In determining any such
amount, the Credit Obligor may make such reasonable estimates, assumptions,
allocations and the like that the Credit Obligor deems to be appropriate.
2.5. Place and Time of Payments.
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(a) All payments by the Issuer to the Credit Obligor hereunder
shall be made in lawful currency of the United States and in immediately
available funds to the Credit Obligor at its address set forth in Section 10.6
hereof or at such other address within the continental United States as shall be
specified by the Credit Obligor by notice to the Issuer.
(b) All amounts payable by the Issuer to the Credit Obligor
hereunder for which a payment date is expressly set forth herein (including
without limitation payments due pursuant to Sections 2.2. and 2.3) shall be
payable without notice or written demand by the Credit Obligor. All amounts
payable by the Issuer to the Credit Obligor hereunder for which no payment date
is expressly set forth herein shall be payable on written demand by the Credit
Obligor to the Issuer .
(c) The Credit Obligor may, at its option, send written notice
to the Issuer of amounts payable pursuant to Sections 2.2 and 2.3, but the
failure to send such notice shall not affect or excuse the Issuer's obligation
to make payment of the amounts required by such Sections on the due date
specified in such Sections.
(d) Payments which are due on a day which is not a Business Day
shall be payable on the next succeeding Business Day, and any interest payable
thereon shall be payable for such extended time at the specified rate.
2.6. Late Payments. With respect to all amounts payable to the
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Credit Obligor by the Issuer pursuant to this Article (i) which are not paid on
the due date, in the case of amounts payable immediately or payable on a
specified date, or (ii) which are not paid within ten (10) days of written
notice to the Issuer, in the case of amounts not so payable, the Issuer agrees
to pay to the Credit Obligor on demand (a late charge of five percent (5%) of
any such amount or amounts which shall not have been paid within 10 days of the
due date as specified above and (b) interest at a variable per annum rate equal
to the Base Rate plus 2.5%, for each day from the specified date of payment to
the date payment is made (the "Default Rate").
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Exhibit 10.45
2.7. Computation of Charges. The interest and charges provided for
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in this Agreement payable in arrears based upon annual rates shall be computed
on the basis of a 360-day year, for actual days elapsed. All interest rates
based upon the Base Rate shall change when and as the Base Rate shall change,
effective on the opening of business on the date of any such change, unless such
change is announced after the close of regular banking hours, in which case such
change shall be effective on the following day.
2.8. Statements of Account. The Credit Obligor will account to the
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Issuer annually with a statement of charges and payments made pursuant to this
Agreement, and each such account rendered by the Credit Obligor shall be deemed
final, binding and conclusive against the Issuer unless the Credit Obligor is
notified by the Issuer in writing to the contrary within forty-five (45) days of
the date each account was rendered. Such notice shall be deemed an objection
only to those items specifically objected to therein.
2.9. Obligations of Issuer Absolute. The obligations of the Issuer
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under this Agreement shall be absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement under all
circumstances whatsoever, including, without limitation, the following:
(a) any lack of validity or enforceability of any Letter of
Credit, the Notes or any other Financing Documents;
(b) any amendment or waiver of or any consent to departure from
all or any of the Letter of Credit, the Notes or any other Financing Documents;
(c) the existence of any claim, set-off, defense or other
rights which the Issuer may have at any time against any Financing Participant,
or any other person or entity, whether in connection with this Agreement, any
Letter of Credit, the Notes or any other Financing Document, or any unrelated
transaction;
(d) any statement or any other document presented under any
Letter of Credit proves to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein proves to be untrue or inaccurate in any
respect whatsoever;
(e) payment by the Credit Obligor under any Letter of Credit
against presentation of a draft or certificate which does not comply with the
terms of any said Letter of Credit, provided such payment shall not have
constituted gross negligence or willful misconduct by the Credit Obligor; and
(f) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, provided the same shall not have
constituted gross negligence or willful misconduct by the Credit Obligor.
Page 10
Exhibit 10.45
2.10. Pledged Notes.
-------------
(a) As additional security for the payment and performance of
the Obligations, the Issuer hereby pledges, assigns, hypothecates and transfers
to the Credit Obligor all its right, title and interest in the Pledged Notes,
and does hereby grant to the Credit Obligor a security interest in the Pledged
Notes and all amounts payable thereon and the proceeds thereof.
(b) If the Credit Obligor is reimbursed for the purchase price
of less than all Pledged Notes with respect to which a Drawing has been made,
the Pledged Notes with respect to which the Credit Obligor has been reimbursed
by the Issuer shall, if no Event of Default exists, be released from the pledge
and assignment made hereby and shall be delivered to or upon the order of the
Issuer.
(c) All payments of principal and interest on Pledged Notes
shall be made directly to the Credit Obligor. If, while the Credit Obligor or
its designated agent holds Pledged Notes, the Issuer shall receive any interest
or principal payment in respect of such Pledged Notes, the Issuer agrees to
accept the same as agent for the Credit Obligor and to hold the same in trust on
behalf of the Credit Obligor and to deliver the same forthwith to the Credit
Obligor. All sums of money so paid in respect of principal, premium or interest
on such Pledged Notes which are received by the Issuer and paid to the Credit
Obligor, or which shall be received directly by the Credit Obligor from the
Trustee, shall be credited against the reimbursement obligation of the Issuer as
provided in Section 2.2 hereof.
(d) If an Event of Default exists, the Credit Obligor may,
without notice, exercise all rights, privileges or options pertaining to any
Pledged Notes as if it were the absolute owner thereof, upon such terms and
conditions as it may determine, all without liability except to account to the
Issuer for property actually received by it. In addition to the rights and
remedies granted to it in this Agreement, the Credit Obligor or its designated
agent shall have the authority to exercise all rights and remedies of a secured
party under the Florida Uniform Commercial Code. The Issuer shall be liable for
any deficiency if the proceeds of any sale or other disposition of the Pledged
Notes and the Collateral are insufficient to pay all amounts to which the Credit
Obligor is entitled. The Credit Obligor shall have no duty to exercise any of
such rights, privileges or options and shall not be responsible for any failure
to do so or any delay in so doing.
(e) Except as contemplated herein, without the prior written
consent of the Credit Obligor, the Issuer agrees that it will not sell, assign,
transfer, exchange, or otherwise dispose of, or grant any option with respect
to, the Pledged Notes, nor will it create, incur or permit to exist any pledge,
lien, mortgage, hypothecation, security interest, charge, option or any other
encumbrance with respect to any of the Pledged Notes, or any interest therein,
or any proceeds thereof, except for the lien and security interest provided for
by this Agreement.
Page 11
Exhibit 10.45
(f) The Issuer further agrees to do or cause to be done all
such other reasonable acts and things as may be necessary to make any
disposition or sale of any portion or all of the Pledged Notes permitted by this
Agreement valid and binding and in compliance with any and all applicable laws,
regulations, orders, writs, injunctions, decrees or awards of any and all courts
or governmental authorities having jurisdiction over any such disposition or
sales, all at the Issuer's expense.
3. CONDITIONS PRECEDENT TO ISSUANCE OF LETTER OF CREDIT:
-----------------------------------------------------
3.1. Conditions Precedent. The obligation of the Credit Obligor to
--------------------
issue the Letter of Credit is subject to the receipt by the Credit Obligor of
the following documents, each of which shall be satisfactory to the Credit
Obligor in form and substance:
(a) Financing Documents. An executed counterpart of each of
-------------------
the Financing Documents.
(b) Issuance of Notes. Evidence that the Notes have been
-----------------
executed, issued and delivered.
(c) Offering Circular. A copy of the Offering Circular
-----------------
distributed in connection with the offering and sale of the Notes, executed or
certified on behalf of the Issuer.
(d) Opinion of Counsel to Credit Obligor. An opinion of
-------------------------------------
counsel to Credit Obligor (Monaco, Smith, Hood, Perkins, Loucks, & Xxxxx, P.
A.), in form and substance satisfactory to the Credit Obligor.
(e) Opinion of Counsel for Issuer. An opinion of counsel for
-----------------------------
the Issuer and the Guarantors (Broad & Xxxxxx, P. A.) in substantially the form
of Exhibit B hereto and as to such other matters as the Credit Obligor may
reasonably request.
(f) Corporate Documents and Approvals. A copy of the Issuer's
---------------------------------
Articles or Certificate of Incorporation, certified by an appropriate
governmental authority, a copy of the Issuer's By-laws, certified as true and
correct by the Issuer's Secretary, and a certified copy of all corporate action
taken by the Issuer approving the Financing Documents and the consummation of
the transactions contemplated thereby (including, without limitation, a
certificate or proceedings setting forth the resolutions of the board of
directors and/or executive committee thereof of the Issuer for such purpose).
(g) Certificate of Issuer. A certificate by the Issuer to
---------------------
the effect that, as of the date of delivery of the Letter of Credit and after
giving effect thereto: (i) no Event of Default shall have occurred and be
continuing; (ii) no event shall have
Page 12
Exhibit 10.45
occurred and be continuing which, with notice or lapse of time or both, would
constitute an Event of Default under this Agreement, and (iii) the
representations and warranties made by the Issuer in Article 5 hereof shall be
true on and as of the date with the same force and effect as if made on and as
of such date.
(h) Insurance. Certificates of insurance evidencing the
----------
issuance of all insurance policies required by this Agreement or by the Mortgage
and Security Agreement.
(i) Title Policy. A title insurance policy issued by a company
------------
acceptable to the Credit Obligor insuring the mortgage lien created by the
Mortgage and Security Agreement on the Real Estate in an amount not less than
the face amount of the Letter of Credit. The title insurance policy shall (i)
insure title to all Real Property and all recorded easements benefiting such
Real Property, (ii) provide for the deletion of the standard exceptions
customarily contained in title insurance policies upon compliance with
reasonable underwriting requirements, (iii) delete the standard survey exception
with the survey presented by the Issuer to Credit Obligor, and (iv) insure the
right of access to and from the Real Property. Such policy must delete the
standard construction or mechanic's lien exception, and must not contain any
"pending disbursement clause" or any exception for defects, encumbrances or
rights of parties in possession that would be disclosed by an inspection or
accurate survey of the Real Property. Such policy may contain only such
exceptions and encumbrances as shall be acceptable to the Credit Obligor.
(j) Survey. An as-built survey of the Real Estate prepared by
------
a professional land surveyor, dated not earlier than 60 days prior to the date
of delivery of the Letter of Credit, showing the relation of such real property
to public roads for access purposes, the location of all structures then
situated on such real property, and all easements, rights-of-way, encroachments,
setback lines and other encumbrances, visible or listed in the title insurance
policies delivered to the Credit Obligor, and certifying that no part of such
real property is located within a flood plain.
(k) Owners' Title Affidavits. Owners' Affidavits as to the
------------------------
title of the Real Estate in form and substance satisfactory to Credit Obligor.
(l) Zoning. Evidence that the intended use of the Real Estate
------
is in accordance with applicable zoning, land use planning and building
restrictions.
(m) Appraisals. Market-value appraisals of the Real Estate
----------
and the remainder of the Collateral prepared by appraisers acceptable to the
Credit Obligor, showing a market value for the Real Estate and the remainder of
the Collateral in amounts satisfactory to the Credit Obligor.
(n) Incumbency Certificates. Incumbency certificates, dated
-----------------------
as of the date of this Agreement, executed by the Secretary or Assistant
Secretary of
Page 13
Exhibit 10.45
each of the Issuer and the Guarantors, which shall identify by name and title
and bear the signature of the officer of the Issuer authorized to sign this
Agreement and the Financing Documents on behalf of the Issuer and the
Guarantors. The Credit Obligor shall be entitled to rely upon such incumbency
certificates in completing the transactions contemplated herein or in any
Financing Document and in all its other dealings with the Issuer and the
Guarantors.
(o) Lien Search. A report from the appropriate recording
-----------
office indicating that there are no Liens against that portion of the Collateral
constituting personal property except Permitted Liens satisfactory to the Credit
Obligor.
(p) Consents. Consents and agreements of the landlords of
--------
each of the premises leased by the Issuer or the Guarantors on which 5% or more
(based on the appraised value) in the aggregate of tangible personal property
constituting any part of the Collateral is located as provided in Section 5.1
hereof (if any), all in form satisfactory to Credit Obligor.
(q) Disbursement Authorizations. Such disbursement
---------------------------
authorizations, draw requests, and other documents and writings as Credit
Obligor shall have requested evidencing the Issuer's request for disbursement of
funds.
(r) Documentation. All instruments and proceedings in
-------------
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to Credit Obligor, and Credit Obligor shall
have received on the date of this Agreement copies of all documents, including
records of corporate proceedings, which it may have requested in connection
therewith, including, without limitation, certified copies of resolutions
adopted by the board of directors and/or the executive committee thereof of the
Issuer and the Guarantors, certificates of good standing, and certified copies
of the Articles of Incorporation and By-Laws, and all amendments thereto, of the
Issuer and the Guarantors.
3.2. Additional Matters. In addition to any document described
------------------
above, the Credit Obligor may in its reasonable discretion request the execution
and delivery of such additional legal opinions, certificates, proceedings,
instruments and other documents as the Credit Obligor or its counsel may
reasonably request to evidence (i) compliance by the Issuer with legal
requirements, (ii) the truth and accuracy, as of the date of delivery of the
Letter of Credit, of the respective representations of the Issuer and the
Guarantors contained in the Financing Documents, and (iii) the due performance
or satisfaction by the Issuer, at or prior to the date of delivery of the Letter
of Credit, of all agreements then required to be performed and all conditions
then required to be satisfied by the Issuer and the Guarantors pursuant to the
Financing Documents.
Page 14
Exhibit 10.45
4. SECURITY FOR OBLIGATIONS:
-------------------------
4.1. Security. The Obligations shall be secured by each of the
--------
following:
(a) A first priority perfected security interest in the
Collateral, subject to Permitted Liens;
(b) The Mortgage and Security Agreement and the rights and
interests described therein; and
(c) The Guaranty Agreement;
(d) The Collateral Assignment of Rents and Leases;
(e) The Indemnity Agreement; and
(f) This Agreement.
4.2. Further Assurances. The Issuer agrees to execute and deliver,
-------------------
or cause the execution and delivery of, such security agreements, deeds of trust
mortgages, assignments, guaranties, consents, subordination agreements, and
financing statements as may be required by Credit Obligor to evidence such
security, all in form satisfactory to Credit Obligor, as well as such consents
and agreements of the landlords of each of the premises leased by the Issuer on
which the Collateral is located (if any), all in form satisfactory to Credit
Obligor.
5. REPRESENTATIONS, WARRANTIES AND GENERAL COVENANTS:
--------------------------------------------------
The Issuer represents, warrants and covenants to and with Credit Obligor,
which representations, warranties and covenants shall survive until the
Obligations are indefeasibly satisfied in full, that:
5.1. Organization and Qualification. The Issuer is a corporation
------------------------------
duly organized, validly existing and in good standing under the laws of the
state of its incorporation, has the corporate power to own its properties and to
carry on its business as now being conducted; and is duly qualified to do
business and is in good standing in every jurisdiction in which the character of
the properties owned by it or in which the character of its business makes its
qualification necessary.
5.2. Corporate Power and Authorization. The Issuer has full power
---------------------------------
and authority to enter into this Agreement, to borrow hereunder, and to execute
and deliver the other Financing Documents and to incur the obligations provided
for herein, all of which have been authorized by all proper and necessary
corporate action.
Page 15
Exhibit 10.45
5.3. Enforceability. This Agreement and each of the other Financing
--------------
Documents constitute a valid and legally binding obligation of the Issuer
enforceable in accordance with their respective terms (as limited by bankruptcy,
insolvency and similar proceedings and general principles of equity) and will
not violate, conflict with, or constitute any default under any law, government
regulation, the Issuer's Articles of Incorporation or By-Laws, or any other
agreement or instrument binding upon the Issuer.
5.4. Financial Statements. All financial statements and reports
--------------------
furnished by the Issuer to Credit Obligor are complete and correct and fairly
present the financial condition of the Issuer and the results of its operations
and transactions as of the dates and for the periods referred to and have been
prepared in accordance with GAAP applied on a consistent basis throughout the
periods involved. There are no liabilities, direct or indirect, fixed or
contingent, of the Issuer as of the date of such financial statements which are
not reflected therein or in the notes thereto. Neither said financial
statements nor any other financial statements, reports, and information
furnished by the Issuer to Credit Obligor contain any untrue statement of a
material fact or omit a material fact necessary to make the statements contained
therein or herein not misleading. There is no fact known to the Issuer, or
reasonably ascertainable by the Issuer with diligent inquiry, which the Issuer
has failed to disclose to Credit Obligor in writing which has a material adverse
effect or, so far as the Issuer can now foresee, will have a material adverse
effect upon the Collateral, business, prospects, profits or condition (financial
or otherwise) of the Issuer or the ability of the Issuer to perform this
Agreement.
5.5. Taxes. The Issuer has filed all federal, state and local tax
-----
returns which are required to be filed and has paid, or made adequate provision
for the payment of, all taxes which have or may become due pursuant to said
returns or to assessments received by the Issuer, including, without limitation,
all applicable federal, state, and local employee withholding taxes.
5.6. Title to Collateral. Except for the security interests granted
-------------------
herein, the Issuer and the Guarantors (respectively, as designated in the
Mortgage and Security Agreement), are the sole owners of the Collateral free
from any adverse Liens (except Permitted Liens), security interests or other
encumbrances. The Issuer and the Guarantors shall defend the Collateral against
all claims and demands of all other parties who at any time claim any interest
in the Collateral.
5.7. Place of Business. The Issuer's chief executive office is
-----------------
located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 and has been located in
the State of Florida at all times material to this Agreement. A security
interest in all Collateral constituting intangible personal property can be
perfected in the State of Florida, and the Collateral constituting tangible
personal property is and shall at all times be located at the sites identified
in the Mortgage and Security Agreement, except for rolling stock (i.e. trucks
with inventory) and inventory, equipment and work in
Page 16
Exhibit 10.45
process which, in the ordinary course of business, is temporarily located at job
sites of customers, subcontractors and other fabricators.
5.8. Full Disclosure. All information furnished by the Issuer to the
---------------
Credit Obligor concerning the Issuer, its financial condition, the Collateral,
or otherwise for the purpose of obtaining credit or an extension of credit, is,
or will be at the time the same is furnished, accurate and correct in all
material respects and complete insofar as completeness may be necessary to give
the Credit Obligor a true and accurate knowledge of the subject matter.
5.9. Issuer's Name. The Issuer has not changed its name or been
-------------
known by any other name within the last five (5) years, nor has it been the
surviving corporation in a merger effected within the last five (5) years. The
Issuer does not now use nor has it ever used any trade or fictitious name in the
conduct of its business, but the Issuer has qualified to do business in the
State of Florida under the name of La-Man Corporation of Nevada.
5.10. Existing Debt. The Issuer is not in default with respect to
-------------
any of its existing debt, including debt to Credit Obligor, or with respect to
any material agreement to which it is a party.
5.11. Solvency. The Issuer is now and, after giving effect to the
transactions contemplated hereby, will at all times be Solvent.
5.12. Environmental Matters. The Issuer is in compliance with all
---------------------
Environmental Regulations and with all other federal, state and local laws and
regulations relating to the environment and pollution, including such laws and
regulations regulating hazardous, radioactive and toxic materials and
underground petroleum products storage tanks. Other than pending lawsuits
disclosed in the Title or Owners' Affidavits, no assessment notice of (primary
or secondary) liability or notice of financial responsibility, and no notice of
any action, claim, investigation, proceeding, or inquiry to determine such
liability or responsibility, or the amount thereof, or to impose civil penalties
has been received by the Issuer, and there are no facts, conditions or
circumstances known to the Issuer which could result in any investigation or
inquiry if all such facts, conditions, and circumstances, if any, were fully
disclosed to the applicable governmental authority. The Issuer has paid any
environmental excise taxes due and payable, including without limitation, those
imposed pursuant to Sections 4611, 4661, or 4681 of the Internal Revenue Code of
1986, as amended from time to time. The Issuer has not obtained and is not
required to obtain (but will obtain if so required in the future) any permits,
licenses, or similar authorizations to construct, occupy, operate or use any
buildings, improvements, fixtures or equipment in connection with its business
by reason of any Environmental Regulations. No oil, toxic or hazardous
substances or solid wastes have been disposed of or released by the Issuer in
connection with the operation of its business and the Issuer will not dispose of
or release oil, toxic or hazardous substances or solid wastes at any time in its
operation of its business (the
Page 17
Exhibit 10.45
terms "hazardous substance" and "release" shall have the meanings specified in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended ("CERCLA"), and the terms "solid waste" and "disposal,"
"dispose" or "disposed' shall have the meanings specified in the Resource
Conservation and Recovery Act of 1976, as amended ("RCRA'), except that if such
acts are amended to broaden the meanings thereof, the broader meaning shall
apply herein).
5.13. No Approval. No authorization or approval or other action by,
-----------
and no notice to or filing with, any federal, state, or local government body,
agency, or authority is required for the due execution, delivery, and
performance by the Issuer of this Agreement or the Financing Documents.
5.14. Mortgage and Security Agreement. All representations of the
-------------------------------
Issuer and the Guarantors or any entity named as "Borrower" or "Debtor" under
the Mortgage and Security Agreement or any of the Financing Documents are true
and correct as of this date.
5.15. Representations True. No representation or warranty by the
--------------------
Issuer contained herein or in any certificate or other document furnished by the
Issuer pursuant hereto contains any untrue statement of material fact or omits
to state a material fact necessary to make such representation or warranty not
misleading in light of the circumstances under which it was made.
6. AFFIRMATIVE COVENANTS OF THE ISSUER:
The Issuer agrees and covenants that until the Obligations have been
indefeasibly paid in full and until the Letter of Credit is no longer
outstanding, the Issuer shall cause each of the Guarantors to, and itself shall:
6.1. Insurance. Maintain insurance with insurance companies
---------
satisfactory to Credit Obligor on such of its properties, in such amounts and
against such risks as is customarily maintained in similar businesses operating
in the same vicinity, and shall file with Credit Obligor upon request, from time
to time, a detailed list of the insurance then in effect, stating the names of
the insurance companies, the amounts and rates of the insurance, dates of
expiration thereof, and the properties and risks covered thereby, and, within 10
days after notice in writing from Credit Obligor, shall obtain such additional
insurance as Credit Obligor may reasonably request. All such policies shall
name the Credit Obligor as a named insured and provide that any losses payable
thereunder shall (pursuant to loss payable clauses, in form and content
acceptable to the Credit Obligor, to be attached to each policy) be payable to
the Credit Obligor, and provide that the insurance provided thereby, as to the
interest of the Credit Obligor, shall not be invalidated by any act or neglect
of the Issuer, nor by the commencing of any proceedings by or against the Issuer
in bankruptcy, insolvency, receivership or any other proceedings for the relief
of a debtor, nor by any foreclosure, repossession or other proceedings relating
to the property insured, nor by any occupation of such property or the use of
Page 18
Exhibit 10.45
such property for purposes more hazardous than permitted in the policy. The
Issuer hereby assigns to the Credit Obligor all right to receive proceeds,
directs any insurer to pay all proceeds directly to the Credit Obligor, and
authorizes the Credit Obligor to endorse any check or draft for such proceeds
and apply the same toward satisfaction of the Obligations. The Issuer shall
furnish to the Credit Obligor insurance certificates, in form and substance
satisfactory to the Credit Obligor, evidencing compliance by it with the terms
of this Section and, upon the request of the Credit Obligor at any time, the
Issuer shall furnish the Credit Obligor with photostatic copies of the policies
required by the terms of this Section. The Issuer will cause each insurer under
each of the policies to agree (either by endorsement upon such policy or by
letter addressed to the Credit Obligor) to, give the Credit Obligor at least 10
days' prior written notice of the cancellation of such policies in whole or in
part or the lapse of any coverage thereunder. The Issuer agrees that it will
not take any action or fail to take any action which action or inaction would
result in the invalidation of any insurance policy required hereunder. The
Issuer shall furnish to the Credit Obligor such evidence of insurance, and proof
of payment of the same, as Credit Obligor may require.
6.2. Corporate Existence: Qualification. Maintain its corporate
----------------------------------
existence and, in each jurisdiction in which the character of the property owned
by it or in which the transaction of its business makes its qualification
necessary, maintain good standing.
6.3. Taxes. During each fiscal year, accrue all current tax
-----
liabilities of all kinds, all required withholding of income taxes of employees,
all required old age and unemployment contributions, all required payments to
employee benefit plans, and pay the same when they become due.
6.4. Compliance with Laws. Comply with all applicable statutes and
--------------------
governmental regulations, including, without limitation, Environmental
Regulations, and pay all taxes, assessments, charges, claims for labor,
supplies, rent, and other obligations. Specifically, the Issuer shall (and the
Issuer shall cause the Guarantors, respectively, to) pay when due all taxes and
assessments upon the Collateral, this Agreement, the Letter of Credit or any
Financing Document, including, without limitation, any stamp taxes or
intangibles taxes imposed by virtue of the transactions outlined herein.
6.5. Annual Financial Statements. Within 90 days after the close of
---------------------------
each fiscal year, furnish Credit Obligor with a true copy of the Issuer's Form
10-KSB Annual Report (or Form 10-K, if applicable) as filed with the Securities
and Exchange Commission, or in the event the Issuer is not required to file such
Annual Report, such comparable audited consolidated financial statements of the
Issuer and its subsidiaries (including the Guarantors) audited by certified
public accountants acceptable to the Credit Obligor and certified as fairly
presenting in all material respects the consolidated financial position of the
Issuer and its subsidiaries as of the date thereof and the results of their
operations and their cash flows for the periods
Page 19
Exhibit 10.45
covered thereby, in accordance with GAAP. In addition, the Issuer shall provide
all internal notes and back-up documentation relating to the consolidation of
the financial statements of the Issuer and its subsidiaries, including the
Guarantors. At the time of furnishing said financial statements, the Issuer
shall furnish Credit Obligor with a certificate from the President and the chief
financial officer of the Issuer stating that they have reviewed this Agreement
and the affairs of the Issuer and that to the best of their knowledge and belief
they are unaware of the occurrence of an event which constitutes an Event of
Default hereunder or which would constitute such an Event of Default with the
giving of notice or the lapse of time or both, and, if so, stating the facts
with respect thereto.
6.6. Interim Financial Statements. Within 45 days after the close of
----------------------------
each fiscal quarter, the Issuer shall provide the Credit Obligor with a true
copy of the Issuer's Form 10-QSB Report (or Form 10-Q, if applicable) as filed
with the Securities and Exchange Commission, or in the event the Issuer is not
required to file such Report or the information described below is not included
therein, such comparable consolidated financial statements of the Issuer and its
subsidiaries (including the Guarantors) including a complete and accurate
listing and summary aging report of all accounts receivable, an inventory report
in summary form coinciding in substance with the Issuer's internally prepared
financial statements as of the last day of the quarter then ended, and financial
statements of the Issuer consisting of balance sheets and operating statements
and a listing of all contingent liabilities of the Issuer for the period
involved and such other statements as Credit Obligor may reasonably request.
The quarterly financial information required hereby may be unaudited and need
not include all information and disclosures required by GAAP; however, such
information will reflect all adjustments (consisting solely of normal recurring
adjustments) which are, in the opinion of the Issuer's management, necessary for
a fair presentation of the consolidated financial position and results from
operations of the Issuer and its subsidiaries for such quarterly periods. All
of such interim financial statements shall be taken from the books and records
of the Issuer, and certified by the chief financial officer of the Issuer as
fairly presenting in all material respects the consolidated financial position
of the Issuer and its subsidiaries as of the date thereof and the results of
their operations and their cash flows for the periods covered thereby. At the
time of furnishing such financial statements, the Issuer shall furnish Credit
Obligor with a certificate from the President or chief financial officer of the
Issuer stating that he has reviewed this Agreement and the affairs of the Issuer
and that to the best of his knowledge and belief he is unaware of the occurrence
of an event which constitutes an Event of Default hereunder or which would
constitute such an Event of Default with the giving of notice or the lapse of
time or both, and if so, stating the facts with respect thereto.
6.7. Visits and Inspections. Permit persons designated by Credit
----------------------
Obligor to inspect the Collateral any and all of the property and corporate and
financial books and records of the Issuer or the Guarantors and, to discuss,
respectively, its affairs with its officers and employees at such reasonable
times as
Page 20
Exhibit 10.45
Credit Obligor shall request and furnish Credit Obligor with such miscellaneous
information as it may request.
6.8. Payments of Obligations. Duly and punctually pay all of the
-----------------------
Obligations of the Issuer to Credit Obligor and to pay all other debt in
accordance with the terms of such debt.
6.9. Conduct of Business. Conduct its business as now conducted and
-------------------
do all things necessary to preserve, renew and keep in full force and effect its
rights, privileges and franchises necessary to continue its business.
6.10. Maintenance of Properties. Keep its properties in good repair,
-------------------------
working order and condition, reasonable wear and tear excepted, and from time to
time make all needed and proper repairs, renewals, replacements, additions, and
improvements thereto and comply with the provisions of all leases to which it is
a party or under which it occupies property so as to prevent any loss or
forfeiture thereof or thereunder.
6.11. Additional Documents. Join the Credit Obligor in executing any
--------------------
security agreements, assignments, consents, financing statements or other
instruments, in form satisfactory to the Credit Obligor, as the Credit Obligor
may from time to time request in connection with the Collateral and the other
security for the Obligations referred to in Section 4.1 hereof.
6.12. Notice to Credit Obligor. Immediately notify the Credit
------------------------
Obligor of (a) any event causing a material loss or depreciation in value of the
Collateral and the amount of such loss or depreciation, or (b) there is any
change in the control of the Issuer resulting in a Person or "group of Persons"
(as those terms are defined by the Securities and Exchange Commission) who have
the present power to appoint or elect 50% or more of the members of the board of
directors of the Issuer.
6.13. Mortgage and Security Agreement. Duly and strictly comply with
-------------------------------
each and every affirmative covenant of the Issuer or any "Mortgagor" or "Debtor"
under the Mortgage and Security Agreement (it being the intention of the parties
that this requirement shall continue notwithstanding termination of the Mortgage
and Security Agreement or satisfaction of the obligations of the Issuer secured
thereby).
6.14. Maintenance of Remarketing Agreement. Maintain in force, at
------------------------------------
all times, a remarketing agreement under which a remarketing agent agrees to
attempt to remarket Notes which are tendered for repurchase under the terms of
the Indenture. Both the identity of the remarketing agent and the terms of the
remarketing agreement must be satisfactory to the Credit Obligor in all
respects.
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Exhibit 10.45
7. NEGATIVE COVENANTS OF THE ISSUER:
Until the Obligations have been indefeasibly repaid and satisfied in full
and until the Letter of Credit is no longer outstanding, without the prior
written consent of Credit Obligor, the Issuer shall not:
7.1. Indebtedness. Create, incur, assume or suffer to exist any
------------
debt or obligation for money borrowed, or guarantee, or endorse, or otherwise be
or become contingently liable in connection with the obligations of any Person
(including, without limitation, any Affiliate or Guarantor) in excess of
$50,000.00 annually, without the written consent of the Credit Obligor.
7.2. Liens and Security Interests. Create, incur, assume, or suffer
----------------------------
to exist any mortgage, security deed, deed of trust, security interest, pledge,
encumbrance. Lien or charge of any kind (including charges on property
purchased under conditional sales or other title-retention agreements) on any of
its property or assets, now owned or hereafter acquired, except for Permitted
Liens.
7.3. Mortgage and Security Agreement. Engage in any action or
-------------------------------
perform any act or fail to perform any act which either itself or with the
giving of notice or the passage of time or otherwise would violate the
provisions of the Mortgage and Security Agreement.
7.4. Revolving Line-of-Credit Note. Violate the provisions contained
-----------------------------
under the heading entitled "Affirmative covenants of Borrower" contained in the
Revolving Line-of-Credit Note, and fail to cure the same within the time or
times provided therein, it being the intention and agreement of the parties
hereto that said provisions are incorporated herein by reference and shall
remain in full force and effect until the Obligations are fully satisfied and
discharged, notwithstanding the payment in full of the Revolving Line-of-Credit
Note.
8. EVENTS OF DEFAULT AND REMEDIES:
-------------------------------
8.1. Events of Default. Any one or more of the following shall
-----------------
constitute an event of default (an "Event of Default") under this Agreement
(whatever the reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in any payment required under Article 2 hereof or
under any other provision hereof, as and when the same shall become due and
payable; or
Page 22
Exhibit 10.45
(b) default in the performance of, or breach of, any covenant or
agreement of the Issuer in this Agreement (other than a covenant or agreement, a
default in the performance or breach of which is elsewhere in this Section
specifically dealt with) which, in the opinion of the Credit Obligor, is
susceptible to being cured or remedied within 30 days after notice of default or
breach, but is not cured or remedied by the Issuer within said time ; or
(c) the sale or other transfer of all or any portion of the
Collateral or any interest therein, except for (1) sales of inventory and the
disposition of obsolete equipment and other property in the ordinary course of
business, (2) transfers made with the prior written consent of the Credit
Obligor (which consent may be granted or refused by the Credit Obligor in its
sole discretion), or (3) tenant leases in form approved by the Credit Obligor;
or
(d) the creation or suffering to exist by the Issuer of any Lien
or encumbrance on the Collateral, other than (1) Permitted Liens, (2) the lien
of this Agreement and the lien of the Credit Documents securing the Obligations,
(3) the Lien for ad valorem taxes not then delinquent, and (4) Liens created
with the prior written consent of the Credit Obligor, which consent may be
granted or refused by the Credit Obligor in its sole discretion; or
(e) the filing of a petition in bankruptcy (or the other
commencement of a bankruptcy or similar proceeding) (1) by the Issuer under any
applicable bankruptcy, insolvency, reorganization, or similar law, now or
hereafter in effect, or (2) against the Issuer, and the Issuer fails to timely
contest or obtain the dismissal of such petition or proceeding within 30 days
following the filing thereof (or such longer period as the Credit Obligor may
grant in its sole discretion); or
(f) any representation or warranty made by the Issuer herein, in
the Credit Documents, or in any document, instrument or certificate furnished to
the Credit Obligor in connection with the issuance of the Letter of Credit or
the consummation of the transactions contemplated by the Financing Documents
shall at any time prove to have been false or incorrect in any material respect
as of the time made and said false and incorrect statement is deemed by Creditor
Obligor in good faith to have a material adverse impact on the Issuer's credit
worthiness and (as it applies to this Agreement) is not, in the Credit Obligor's
opinion, susceptible to cure or remedy; or
(g) the Issuer shall default with respect to the Notes or the
occurrence of a default or an Event of Default, as therein defined, under any of
the Financing Documents and the default or Event of Default is not cured or
otherwise remedied prior to the expiration of any applicable grace or cure
period; or
(h) the entry against the Issuer of a full judgment, decree or
order for the payment of money in excess of $50,000, and the continuance of such
Page 23
Exhibit 10.45
judgement, decree or order unsatisfied and in effect for any period of thirty
(30) consective days without a stay of execution; or
(i) a default under any bond, debenture, note or other evidence
of indebtedness of the Issuer in excess of $50,000 or under any indenture or
other instrument under which any such evidence of indebtedness has been issued
or by which it is governed and the expiration of the applicable period of grace,
if any, specified in such evidence of indebtedness, indenture or other
instrument; provided, however, that, if such default under such evidence of
indebtedness, indenture or other instrument shall be cured by the Issuer, or be
waived by the holders of such indebtedness, in each case as may be permitted by
such evidence of indebtedness, indenture or other instrument, or if the Issuer
is diligently and in good faith contesting such alleged default by appropriate
legal proceedings to the Credit Obligor's reasonable satisfaction, then the
Event of Default hereunder by reason of such default shall be deemed likewise to
have been thereupon cured or waived; or
(j) if the cancellation, termination or limitation of any
guaranty of the Issuer's obligations under this Agreement or Obligations shall
occur, or if any such Guarantor shall be in default under or breach the terms of
any guaranty agreement between the Credit Obligor and such Guarantor; or if any
subordination agreement executed by any creditor of the Issuer or of any such
Guarantor in favor of the Credit Obligor should be canceled, terminated, or
breached; or
(k) if the Issuer shall be criminally convicted under any law
that could lead to a forfeiture of any property of the Issuer; or
(l) any material loss, theft, damage or destruction not fully
covered by insurance (as required by this Agreement and subject to such
deductibles as Credit Obligor shall have agreed to in writing), or the making of
any levy, seizure, or attachment of any of the Collateral except in all cases as
may be specifically permitted by other provisions of this Agreement; or
(m) there shall occur any material adverse change in the
consolidated financial condition or results of operations of the Issuer and its
subsidiaries in the aggregate; or
(n) if a creditor of the Issuer shall obtain possession of any
of the Collateral (having a value of $10,000.00 or more) by any legal means; or
(o) there shall occur a cessation of a substantial part of the
business of the Issuer for a period which significantly affects said Issuer's
capacity to continue its business, on a profitable basis; or the Issuer shall
suffer the loss or revocation of any license or permit now held or hereafter
acquired by the Issuer which is necessary to the continued or lawful operation
of its business; or the Issuer
Page 24
Exhibit 10.45
shall be enjoined, restrained or in any way prevented by court, governmental or
administrative order from conducting all or any material part of its business
affairs; or any material lease or agreement pursuant to which the Issuer leases,
uses or occupies any of its properties shall be canceled or terminated prior to
the expiration of its stated term; or any part of the Collateral shall be taken
through condemnation or the value of such properties shall be impaired through
condemnation; or
(p) Credit Obligor shall reasonably and in good xxxxx xxxx
itself insecure, based upon the existence of objective facts, standards, or
criteria; or
(q) if a default or event of default or breach occurs under any
Financing Document (other than the breaches enumerated in items (a) through (p)
above), or under or with respect to any of the Obligations, or under any other
note, evidence of indebtedness, loan agreement, security agreement, guaranty,
pledge, mortgage, assignment, or security document executed by the Issuer and
delivered to the Credit Obligor, and the default or event of default is not
cured or otherwise remedied prior to the expiration of any applicable grace or
cure period.
The Issuer agrees that default under any Financing Document shall
constitute default with respect to all Financing Documents and vice versa.
8.2. Remedies. If any Event of Default shall have occurred and be
--------
continuing, the Credit Obligor may exercise any of the following remedies:
(a) give written notice of such Event of Default to the Trustee,
whereupon an event of default shall occur under the Indenture and the Trustee
shall declare the Notes immediately due and payable and shall make a draw under
the Letter of Credit to pay the principal of the Notes and the interest accrued
thereon to the date of such declaration;
(b) upon notice to the Issuer, declare all amounts. if any. not
otherwise immediately due under this Agreement to be, and all such amounts shall
thereupon become, due and payable to the Credit Obligor, without presentment,
demand, protest, or other notice of any kind. all of which are expressly waived,
anything in this Agreement to the contrary notwithstanding;
(c) exercise its banker's lien or right of set-off; and/or
(d) proceed to protect its rights by suit in equity, action at
law or other appropriate proceedings, whether for the specific performance of
any covenant or agreement of the Issuer herein contained or in aid of the
exercise of any power or remedy granted to the Credit Obligor under any other
Financing Document.
8.3. Additional Rights. Without limiting the foregoing, upon the
-----------------
occurrence of any Event of Default, and at any time thereafter, Credit Obligor
shall
Page 25
Exhibit 10.45
have the rights and remedies of a secured party under the Uniform Commercial
Code in addition to the rights and remedies provided herein or in any other
instrument or paper executed by the Issuer. Credit Obligor may require the
Issuer to assemble the Collateral and to make the same available to Credit
Obligor at a place to be designated by Credit Obligor which is reasonably
convenient to both parties. Unless the Collateral is perishable or threatens to
decline speedily in value, or is of a style customarily sold on a recognized
market, Credit Obligor will give the Issuer reasonable notice of the time after
which any private sale or other intended disposition thereof is to be made. The
requirement of reasonable notice shall be met if such notice is mailed postage
prepaid to the Issuer at least 10 days before the time of such sale or
disposition. The Issuer shall pay Credit Obligor on demand any and all expenses,
including legal expenses and reasonable attorneys' fees, incurred or paid by
Credit Obligor in protecting or enforcing the Obligations secured hereby and
other rights of Credit Obligor hereunder, including its right to take possession
of the Collateral.
8.4. Acceleration of Reimbursement. If an Event of Default exists
-----------------------------
under this Agreement and the maturity of all the Notes has not been accelerated
pursuant to the terms of the Indenture and the Letter of Credit is in effect,
the Issuer agrees to pay to the Credit Obligor, promptly upon demand by the
Credit Obligor therefor, an amount equal to the maximum amount available to be
drawn under the Letter of Credit, said occurrence being herein referred to as a
"Reimbursement Acceleration". All amounts so paid to the Credit Obligor (or
recovered by the Credit Obligor by legal or other action in the event the Issuer
shall fail or refuse to make payment as required by this Section) shall be held
by the Credit Obligor in reserve as security for reimbursement for any draws the
Credit Obligor may be required to pay under the Letter of Credit. The Credit
Obligor may maintain any reserve held under the terms of this Agreement in any
manner the Credit Obligor may see fit, and the Credit Obligor may invest the
same in such investment or investments (including but not limited to
certificates of deposit issued by the Credit Obligor) as the Credit Obligor may
choose or not invest the same. The Credit Obligor shall not be required to pay,
or to account to the Issuer or anyone else for. any interest or other earnings
on any reserve at any time held by the Credit Obligor under this Agreement,
except that any interest, income or profits from any investment of such reserve
made by the Credit Obligor shall become a part of such reserve.
8.5. Waivers; Application of Proceeds. The Issuer waives notice
--------------------------------
prior to Credit Obligor's taking possession or control of any of the Collateral
or any bond or security that might be required by any court prior to allowing
Credit Obligor to exercise any of Credit Obligor's remedies, including, without
limitation, the issuance of an immediate writ of attachment or similar writs.
The Issuer agrees that Credit Obligor may apply the net proceeds received from
the Collateral among the Obligations toward satisfaction of the same in its sole
discretion. Any such proceeds remaining after satisfaction in full of the
Obligations, and the other obligations and liabilities of the Issuer to Credit
Obligor shall be distributed as required by applicable laws.
Page 26
Exhibit 10.45
8.6. No Remedy Exclusive. No remedy herein conferred upon or reserved
-------------------
to the Credit Obligor is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and shall be in
addition to every other remedy given under this Agreement or now or hereafter
existing at law or in equity or by statute. No delay or omission to exercise any
right or power accruing upon any default shall impair any such right or power or
shall be construed to be a waiver thereof but any such right or power may be
exercised from time to time and as often as may be deemed expedient.
8.7. Agreement to Pay Attorneys' Fees. If the Issuer should default
--------------------------------
under any of the provisions of this Agreement and the Credit Obligor should
employ attorneys or incur other expenses for the collection of any payments due
hereunder or the enforcement of performance or observance of any agreement or
covenant on the part of the Issuer herein contained, the Issuer will on demand
therefor pay to the Credit Obligor the reasonable fees of such attorneys and
such other reasonable expenses so incurred.
8.8. No Additional Waiver Implied by One Waiver. If any agreement
------------------------------------------
contained in this Agreement should be breached by the Issuer and thereafter
waived by the Credit Obligor, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach hereunder.
8.9. Remedies Subject to Applicable Law. All rights, remedies
----------------------------------
and powers provided by this Article may be exercised only to the extent the
exercise thereof does not violate any applicable provision of law in the
premises, and all the provisions of this Article are intended to be subject to
all applicable mandatory provisions of law which may be controlling in the
premises and to be limited to the extent necessary so that they will not render
this Agreement invalid or unenforceable.
9. INDEMNIFICATION: LIABILITY OF CREDIT OBLIGOR:
---------------------------------------------
9.1. General Matters. The Issuer agrees to defend, indemnify and
hold harmless the Credit Obligor, its directors, officers, employees,
accountants, attorneys, and agents, (the "Indemnitees") from and against, and on
demand to reimburse Indemnitees for, any and all claims, demands, judgments,
damages, actions, causes of action, injuries, orders, penalties, costs and
expenses (including attorneys' fees and costs of court) of any kind whatsoever
arising out of or relating to any breach or default by the Issuer or any other
Person (including any Guarantor) under this Agreement or any Financing Document
or the failure of the Issuer to observe, perform or discharge the Issuer's
duties hereunder or thereunder. Without limiting the generality of the
foregoing, the Issuer's obligation to indemnify Indemnitees shall include
indemnity from any and all claims, demands, judgments, damages, actions, causes
of action, injuries, orders, penalties, costs and
Page 27
Exhibit 10.45
expenses arising out of or in connection with the activities of the Issuer, its
predecessors in interest, third parties who have trespassed on the Issuer's
property, or parties in a contractual relationship with the Issuer, whether or
not occasioned wholly or in part by any condition, accident or event caused by
an act or omission of the Indemnitees, which: (a) arise out of the actual,
alleged or threatened discharge, dispersal, release, storage, treatment,
generation, disposal, or escape of radioactive materials, radioactivity,
pollutants or other toxic or hazardous substances, including any solid, liquid,
gaseous, or thermal irritant or contaminant, including smoke, vapor, soot,
fumes, acids, alkalis, chemicals, and waste (including materials to be recycled,
reconditioned or reclaimed); or (b) actually or allegedly arise out of the use,
specification, or inclusion of any product, material, or process containing
chemicals or radioactive material, the failure to detect the existence or
proportion of chemicals or radioactive material in the soil, air, surface water
or groundwater, or the performance or failure to perform the abatement of any
pollution source or the replacement or removal of any soil, water, surface
water, or groundwater containing chemicals or radioactive material; or (c)
arises out of or relates to breach by the Issuer of any of the provisions of
Section 5.14 hereof relating to Environmental Regulations. In addition, the
Issuer will indemnify and hold Indeminitees harmless from and against any
liability, claim, cost or expense incurred by Indemnitees or imposed against
Indemnitees for any stamp tax, intangible tax, or other tax, fee or charge
imposed by any governmental entity arising out of or relating to the Letter of
Credit or this Agreement or the transactions anticipated herein.
9.2. Letter of Credit Matters. The Issuer agrees to defend,
------------------------
indemnify and hold harmless Indemnitees (as defined in the previous Section)
from and against, and on demand to reimburse Indemnitees for, any and all
claims, damages, losses, liabilities, reasonable costs or expenses whatsoever
which Indemnitees may incur (or which may be claimed against Indemnitees by any
person or entity whatsoever) by reason of or in connection with the execution
and delivery or transfer of, or payment or failure to pay under, any Letter of
Credit; provided, that the Issuer shall not be required to indemnify Indemnitees
--------
for any claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, caused by (i) the willful misconduct or gross negligence
of the Credit Obligor in determining whether a draft or certificate presented
under any Letter of Credit complies with the terms of said Letter of Credit or
(ii) the Credit Obligor's negligent or willful failure to pay under any Letter
of Credit after the presentation to it by the Trustee of a draft and certificate
strictly complying with the terms and conditions of said Letter of Credit.
9.3. Liability of the Credit Obligor. For the exclusive benefit of
-------------------------------
the Credit Obligor and as between the Credit Obligor and the Issuer only, the
Issuer assumes all risks of the acts or omissions of the Trustee and any
transferee of any Letter of Credit with respect to its use of said Letter of
Credit. Neither the Credit Obligor nor any of its officers or directors shall be
liable or responsible for: (i) the use which may be made of any Letter of Credit
or for any acts or omissions of the
Page 28
Exhibit 10.45
Trustee and any transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement(s) thereon, even
if such documents should in fact prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (iii) payment by the Credit Obligor against
presentment of documents which do not strictly comply with the terms of any
Letter of Credit, including but not limited to, failure of any documents to bear
any reference or adequate reference to any Letter of Credit; or (iv) any other
circumstances whatsoever in making or failing to make payment under any Letter
of Credit, except only that the Issuer shall have a claim against the Credit
Obligor, and the Credit Obligor shall be liable to the Issuer, to the extent,
but only to the extent, of any direct, as opposed to consequential, damages
suffered by the Issuer which the Issuer proves were caused by (A) the Credit
Obligor's willful misconduct or gross negligence in determining whether
documents presented under any Letter of Credit comply with the terms of said
Letter of Credit or (B) the Credit Obligor's willful or negligent failure to pay
under any Letter of Credit after the presentation to it by the Trustee of a
draft and certificate strictly complying with the terms and conditions of said
Letter of Credit In furtherance and not in limitation of the foregoing, the
Credit Obligor may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
10. MISCELLANEOUS:
--------------
10.1. Continuing Obligation. This Agreement is a continuing
---------------------
obligation and shall (i) be binding upon the Issuer and the Credit Obligor,
their successors and assigns, and (ii) inure to the benefit of and be
enforceable by the Issuer and Credit Obligor and their successors and assigns;
provided, that the Issuer may not assign all or any part of this Agreement
--------
without the prior written consent of the Credit Obligor.
10.2. Costs and Expenses. The Issuer shall bear all expenses of the
------------------
Credit Obligor in connection with investigation, review and approval of this
transaction, the preparation of this Agreement, the Letter of Credit, and the
Financing Documents, and also in connection with any amendment or modification
thereto, including, without limitation, (i) all legal fees, expenses and
disbursements and other actual third-party expense reimbursements incurred or
sustained by Credit Obligor in connection with this character, and (ii) all
travel, appraisal, audit, search and filing fees incurred or sustained by Credit
Obligor in connection with this transaction. The Issuer agrees to indemnify and
save Credit Obligor harmless against all broker's and finder's fees, if any. If,
at any time or times hereafter, whether before or after the occurrence of an
Event of Default, the Credit Obligor employs counsel to advise or provide other
representation with respect to the Agreement, or to collect the balance of
Obligations, or to take any action in or with respect to any suit or proceeding
relating to this Agreement or any of the Financing Documents, or to protect,
collect, or liquidate the Collateral or to attempt to enforce any security
interest or Lien granted to the Credit Obligor by the Issuer; then in any such
events. all of the reasonable attorneys' fees arising from such
Page 29
Exhibit 10.45
services and any expenses, costs and charges relating thereto shall constitute
additional obligations of the Issuer payable on demand of the Credit Obligor.
Without limiting the foregoing, the Issuer shall pay or reimburse the Credit
Obligor for all recording and filing fees, intangibles taxes, documentary and
revenue stamps, other taxes or other expenses and charges payable in connection
with this Agreement, the Letter of Credit or any Financing Document, or the
filing of any Financing Document, financing statements or other instruments
required by the Credit Obligor in connection with the Obligations. In addition,
the Issuer shall upon demand reimburse Credit Obligor for all costs of audits
and appraisals performed by Credit Obligor. Fees, costs and expenses described
in this Section may include accountants' fees, costs and expenses; costs and
expenses incurred by Credit Obligor's loan administration staff, audit staff and
appraisal staff, court costs and expenses; photocopying and duplicating
expenses; court reporter fees, costs and expenses; long distance telephone
charges; air express charges; telegram charges; secretarial over-time charges;
and expenses for travel, lodging and food paid or incurred in connection with
the performance of such services and activities. the Issuer acknowledges and
agrees that legal counsel to Credit Obligor does not represent the Issuer as the
Issuer's attorney, that the Issuer has retained counsel of its own choice and
has not and will not rely upon any advice from Credit Obligor's counsel, that
the Issuer's reimbursement of expenses pursuant to this Agreement (even if
effected by payment directly by the Issuer to Credit Obligor's counsel) shall
not be deemed to establish any attorney-client relationship between the Issuer
and Credit Obligor's counsel.
10.3. Headings. Except for the definitions set forth in Article 1, the
--------
headings of the articles, sections, paragraphs and subdivisions of this
Agreement are for convenience of reference only, are not to be considered a part
hereof, and shall not limit or otherwise affect any of the terms hereof.
10.4. No Usury. In no event shall the amount of interest due or
--------
payable on the Obligations under this Agreement, the Letter of Credit exceed the
maximum rate of interest allowed by applicable law, and in the event any such
payment is inadvertently paid by the Issuer or inadvertently received by the
Credit Obligor, then such excess sum shall be credited as payment of principal,
unless the Issuer elects to have such excess sum refunded to the Issuer
forthwith. It is the express intent of the parties that the Issuer not pay and
the Credit Obligor not receive, directly or indirectly, interest in excess of
that which may be legally paid by the Issuer under applicable law.
10.5. Survival of Covenants. All covenants, agree agreements,
---------------------
representations and warranties made herein and in certificates or reports
delivered pursuant hereto shall be deemed to have been material and relied on by
Credit Obligor, notwithstanding any investigation made by or on behalf of Credit
Obligor, and shall survive the execution and delivery to Credit Obligor of any
Financing Document.
Page 30
Exhibit 10.45
10.6. Addresses. Any notice or demand which by any provision of this
---------
Agreement is required or provided to be given shall be deemed to have been
sufficiently given or served for all purposes by being delivered in person to
the party to whom the notice or demand is directed or by being sent as first
class mail, postage prepaid, to the following address: If to the Issuer, then to
La-Man Corporation, 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 Attention: Mr.
J. Xxxxxxx Xxxxxxxx; or if any other address shall at any time be designated by
the Issuer in writing to Credit Obligor at the time of such designation to such
other address; and if to Credit Obligor, 000 Xxxx Xxx Xxxx Xxxxxx, XxXxxx,
Xxxxxxx 00000 Attention: Asset-Based Lending Department; or if any other address
shall at any time be designated in writing to the Issuer, to such other address.
10.7. Venue and Jurisdiction. The Issuer agrees that any legal action
----------------------
brought by the Credit Obligor to collect the Obligations or to assert any claim
against the Issuer under any Financing Document, or any part thereof, may be
brought in any court in the State of Florida having subject matter jurisdiction,
waives its right to object to any such action on grounds it is brought in the
improper venue, and irrevocably consents that any legal action or proceeding
against it under, arising out of, or in any manner relating to the Obligations,
or any Financing Document may be brought in the Circuit Court of Volusia County,
Florida or in any other Circuit Court of the State of Florida or in the U.S.
District Court for the Middle District of Florida. The Issuer, by the execution
of this Agreement, expressly and irrevocably assents and submits to the personal
jurisdiction of any such court in any such action or proceeding. The Issuer
consents to the service of process relating to any such action or proceeding by
mail to the address set forth in this Agreement.
10.8. Controlling Law. This Agreement shall be governed by and
---------------
construed in accordance with the laws of the State of Florida; provided,
however, that if any of the Collateral shall be located in any jurisdiction
other than Florida, the laws of such jurisdiction shall govern the method,
manner and procedure for foreclosure of Credit Obligor's lien upon such
Collateral and the enforcement of Credit Obligor's other remedies in respect of
such Collateral to the extent that the laws of such jurisdiction are different
from or inconsistent with the laws of Florida.
10.9. Participation. The Issuer acknowledges that Credit Obligor may,
-------------
at its option, sell participation interests in the Obligations to participating
banks. The amounts of any such participations shall be determined solely by the
Credit Obligor. The Issuer agrees with each present and future participant in
the Obligations, the names and addresses of which will be furnished to the
Issuer, that if an Event of Default should occur, each present and future
participant shall have all of the rights and remedies of Credit Obligor with
respect to any deposit due from any participant to the Issuer. The execution by
a participant of a participation agreement with Credit Obligor, and the
execution by the Issuer of this Agreement, regardless of the order of execution,
shall evidence an agreement between the Issuer and said participant in
accordance with the terms of this Section.
Page 31
Exhibit 10.45
10.10. Miscellaneous. Time is of the essence with respect to this
--------------
Agreement. This Agreement and the instruments and agreements referred to herein
or called for hereby supersede and incorporate all representations, promises,
and statements, oral or written, made by the Credit Obligor in connection with
the Obligations. The language used in this Agreement shall be deemed to be the
language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against either party. This
Agreement may not be varied, altered, or amended except by a written instrument
executed by an authorized officer of the Credit Obligor. This Agreement may be
executed in any number of counterparts, each of which, when executed and
delivered, shall be an original, but such counterparts shall together constitute
one and the same instrument.
10.11. Waiver of Right to Trial by Jury. THE ISSUER AND CREDIT OBLIGOR
--------------------------------
HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF,
DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING OUT OF OR IN ANY WAY PERTAINING OR
RELATING TO THIS AGREEMENT, THE LETTER OF CREDIT, THE FINANCING DOCUMENTS, OR
ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION
WITH THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR PERTAINING OR RELATED TO
OR INCIDENTAL TO ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS
AGREEMENT, THE LETTER OF CREDIT, THE FINANCING DOCUMENTS, OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR IN CONNECTION WITH THE TRANSACTIONS RELATED THERETO OR CONTEMPLATED THEREBY
OR THE EXERCISE OF EITHER PARTY'S RIGHTS AND REMEDIES THEREUNDER, IN ALL OF THE
FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE. THE ISSUER AND CREDIT OBLIGOR AGREE THAT EITHER
OR BOTH OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN
EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES
IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY
WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
11. SURVIVAL:
---------
Reference is made herein to the Mortgage and Security Agreement for
purposes of requiring continued compliance by the Issuer with the terms thereof
throughout the term of this Agreement and for purposes of determining in certain
cases what constitutes an Event of Default. Should for any reason the Mortgage
and Security Agreement cease to have force and effect, its provisions shall
continue to be deemed incorporated herein by reference as provided herein
notwithstanding said termination, and the Issuer shall continue to comply with
the terms of said Mortgage and Security Agreement until such time as the
Obligations hereunder are indefeasibly paid in full.
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Exhibit 10.45
IN WITNESS WHEREOF, the Issuer and the Credit Obligor have caused this
instrument to be executed and delivered by their duly authorized officers, all
as of the year and date first above written.
ISSUER:
LA-MAN CORPORATION
By:/s/ J. Xxxxxxx Xxxxxxx
-------------------------------
J. Xxxxxxx Xxxxxxxx, Its President
Attest:/s/ Philips Xxxx Hoard
---------------------------
Its Secretary
CREDIT OBLIGOR:
SOUTHTRUST BANK,
NATIONAL ASSOCIATION
By:/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxxxx
Executive Vice President
Page 33
