PARTICIPATION AGREEMENT
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THIS PARTICIPATION AGREEMENT ("Participation Agreement"), dated as of
November 6, 2000, is by and among BANK OF AMERICA, N.A., a national banking
association ("Bank of America"), and THE MANAGEMENT OF THE PARENT PARTY HERETO
(each a "Shareholder" and collectively, the "Participant").
RECITALS
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A. Bank of America is party to that certain Amended and Restated Credit
Agreement dated as of June 4, 1999 as amended by Amendment No. 1 dated as of
June 13, 2000 and Amendment No. 2 dated July 31, 2000 (as so amended and as
further amended from time to time in accordance with its terms, including by
Amendment No. 3 described below, the "Credit Agreement") by and among Bank of
America, as Agent and Lender and Xxxxxx Xxxxxxx, Inc. (the "Parent") and Xxxxxx
Xxxxxxx Retail, Inc. (collectively with the Parent, the "Borrower"), as
Borrower.
B. All capitalized terms not otherwise defined herein shall have the
respective meanings assigned to them in the Credit Agreement.
C. In connection with the execution and delivery of Amendment Agreement
No. 3 to the Credit Agreement dated as of the date hereof, Bank of America is
requiring, as a condition to the effectiveness thereof, that the Participant
execute and deliver this Participation Agreement.
D. Bank of America agrees to sell to Participant, and Participant
irrevocably agrees to purchase from Bank of America, an undivided interest as
provided herein (the "Participation") in the Loan Documents and all collateral
therefor and guarantees thereof in regard to the Borrower's obligations to pay
to Lender the Working Capital Loan described in the Credit Agreement, which
Credit Agreement provides for the making of various loans to the Borrower,
including a Revolving Loan of $36,000,000 (the "Revolving Loan") evidenced by a
Revolving Note dated July 31, 2000 (the "Revolving Note") and a Working Capital
Loan of $7,000,000 (the "Working Capital Loan") evidenced by a Working Capital
Note dated November 6, 2000 (the "Working Capital Note"). The loans made
pursuant to the Credit Agreement include the Revolving Loan, the Working Capital
Loan, and a Swingline Loan of up to $2,000,000 (collectively the "Loans"). The
Loans are secured by real and personal property of the Parent and its
Subsidiaries described in the Security Instruments (the "Collateral").
IT IS THEREFORE AGREED AS FOLLOWS:
1. Participation Interest. Upon and subject to the terms and conditions
set forth in this Participation Agreement, Bank of America hereby sells to
Participant and Participant hereby purchases from Bank of America a 14.0000000%
fractional undivided participation interest (the "Applicable Commitment
Percentage") in the Working Capital Loan and a like interest in any payments
recovered by Bank of America in respect of the Working Capital Loan by reason of
liquidation or sale of Collateral or payment with respect to guarantees thereof.
The percentage interest of the Participant purchased pursuant to the terms
hereof is referred to herein from time to time as the Participant's "pro rata
share" or "pro rata participation."
2. Payment of Participation Amount. Upon execution of this
Participation Agreement by the parties hereto, Participant shall pay to Bank of
America $1,000,000 (the "Participation Amount") as of the date of such execution
by paying the Participation Amount to Bank of America. Each Shareholder's
portion of the Participation Amount is set forth next to its signature on the
signature pages hereto. Payment of the Participation Amount shall be made by
wire transfer to Bank of America at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxx Center,
NC1-001-15-04, Charlotte, North Carolina, ABA No. 000000000, Attention: Agency
Services, Acct. No. 3751733979, Reference: Xxxxxx Xxxxxxx, Inc. (the
"Participation Account"). Such payment shall be made prior to 3:30 p.m.
Charlotte, North Carolina time on the date of execution hereof. The
Participation Amount shall be held in the Participation Account until the
Participant's pro rata share of each Advance under the Credit Agreement is
disbursed therefrom pursuant to the terms of the Credit Agreement. All accrued
interest on the funds in the Participation Account and any unused portion of the
Participation Amount shall be refunded to the Participant on the Working Capital
Termination Date.
3. Payments on Working Capital Loan. Whenever Bank of America receives
any payment in respect of principal, interest or fees with respect to the
Working Capital Loan in which Participant has a Participation, as specified
above, or whenever Bank of America makes an application of funds in connection
therewith, Bank of America shall promptly pay over to Participant, to the extent
and in the kind of funds so received or applied for the benefit of the
Participant, an amount equal to its Applicable Commitment Percentage of such
payment or application; provided that if Bank of America shall have received
immediately available, fully collected funds for such payment or application, it
shall make such payment or application to the Participant in accordance with the
wire transfer instructions provided by Participant on the signature pages
hereto, as such instructions may be modified from time to time by notice in
writing from the Participant to Bank of America (the "Participant Wire
Instructions"). Participant shall not be entitled to receive any amounts except
as expressly stated in this paragraph. The excess, if any, of fees payable under
the Credit Agreement over fees payable to Participant hereunder shall be
retained by Bank of America as a fee for services rendered in connection with
the Loan Documents and this Participation Agreement.
4. Computation of Interest. All computations of interest and fees shall
be made on the basis set forth in the applicable Credit Agreement. It is agreed
that any determination by Bank of America as to the allocation of any payment or
application to Participant's pro rata share shall be final and conclusive absent
manifest error.
5. Amounts Not Received. Bank of America may, but shall not be
obligated to, transfer funds to Participant which may be due from the Borrower
on the date as due prior to receipt of such funds from the Credit Parties. If
any portion of such funds are not then received from the Borrower, Participant
shall, on demand by Bank of America, repay to Bank of America its pro rata share
of the amount not received, with interest thereon at the applicable Federal
Funds Rate for each day from the date of receipt by Participant of such funds to
(but not including) the date such funds are repaid by Participant to Bank of
America.
6. Representations of Bank of America. Bank of America warrants and
represents that (i) it has the right, power and authority to sell and assign to
Participant a participating interest in Bank of America's interest in the
Working Capital Loan free and clear of all claims,
liens and encumbrances whatsoever, (ii) Bank of America has entered into the
Credit Agreement in its regular course of business, (iii) to the best of its
actual knowledge no Default or Event of Default exists as of the date hereof,
and (iv) it has given the Participant copies of the Credit Agreement and all
amendments and waivers thereof. Bank of America makes no other representation or
warranty to the Participant of any kind or character, including, but not limited
to, any warranties concerning prospects for payment or collection of the Working
Capital Loan or other amounts. Bank of America assumes no responsibility for the
financial condition of the Borrower or any other Person or the performance of
their respective obligations. Bank of America assumes no responsibility for the
validity, authority or enforceability of any of the Loan Documents or any
documents received by Bank of America from the Borrower or any other Person in
connection with the Loans.
7. Expenses. Participant shall, upon demand, reimburse Bank of America
for Participant's Applicable Commitment Percentage of the out-of-pocket expenses
reasonably incurred by Bank of America as the holder of the Working Capital
Loan, or arising out of Bank of America's obligations under the Credit Agreement
with respect to the Working Capital Loan in accordance with the terms thereof,
to the extent the same are not recovered from the Borrower or any other party,
including without limitation all expenses incurred by Bank of America to enforce
any of its rights under or to collect amounts due under the Working Capital
Note, including reasonable attorneys' fees incurred in connection with the
foregoing. Such reimbursement shall be made by Participant in the proportion
that the outstanding principal balance of its Participation in the Working
Capital Loan bears to the outstanding principal balance on the Working Capital
Loan Obligations on the date such expenses were incurred.
8. Assignments. (a) The Participant shall not sell, assign, transfer,
mortgage, pledge or otherwise dispose of any or all interest in the Working
Capital Loan, the Credit Agreement, any of the documents executed in connection
therewith, or this Participation Agreement without the prior written consent of
Bank of America. Prior to consent to such disposition or transfer of interest by
Participant, Bank of America shall have no duty to any transferee or assignee
and the assigning or transferring Participant shall hold Bank of America
harmless in connection with any action or claim by any transferee or assignee of
the assigning or transferring Participant.
(b) Notwithstanding the terms of the preceding subparagraph
(a), no sale, assignment, transfer, mortgage, pledge or other disposition shall
be made by Participant of its interest in the Working Capital Loan, the Credit
Agreement or any of the documents executed in connection therewith which would
violate the terms of any of such documents, statutes of the State of Florida or
the United States government, or any rules, regulations or interpretations
thereunder.
9. Amendments and Waivers. Bank of America reserves the right, in its
sole discretion, in each instance, without prior notice to Participant, to agree
to the modification, waiver or release of any of the terms of the Credit
Agreement, or any document relative thereto, to consent to any action or failure
to act by either of the Borrowers, and to exercise or refrain from exercising
any powers or rights which Bank of America may have under or in respect of the
Credit Agreement or any document relative thereto, including, without
limitation, the right to enforce the obligations of the Borrower, or any other
party. Bank of America agrees to furnish to the Participant with a copy of any
amendment or modification to the Credit Agreement.
10. No Enforcement Rights. Participant hereby agrees that it shall not
have any right or responsibility to enforce the obligations of the Borrower and
any other parties under the Loan Documents, and except as expressly provided
herein to the contrary, all rights pursuant to the Loan Documents (or otherwise)
of Bank of America to secure payment of the obligations of the Borrower under
the Loan Documents shall be so held (and such rights shall be exercised solely
by and at the option of Bank of America) for the ratable benefit of Bank of
America and Participant. Participant hereby acknowledges and agrees that this
Participation Agreement and the participation created hereby do not confer on
Participant any right to vote on, approve or sign amendments or waivers, any
other independent benefit or any legal or equitable right, remedy or other claim
under the Credit Agreement or the other Loan Documents.
11. Pro Rata Support; No Interest in Other Loans. Any and all
collateral security and all guarantees, agreements and assignments of the
Borrower which may hereafter come into the possession of Bank of America as
direct guarantees of or collateral security for the Working Capital Loan, shall
be held by Bank of America for the ratable benefit of Bank of America and the
Participant. However, the Participant shall have no interest in any property
taken as collateral security for any other loan or loans made by Bank of America
to the Borrower, or in any property now or hereafter in Bank of America's
possession or control which may be or become collateral security for the Loan by
reason of the general description contained in any general loan or collateral
agreement or collateral note held by Bank of America or by reason of any right
of set-off, counterclaim, banker's lien or otherwise, except that if such
property or the proceeds thereof shall be applied to the Working Capital Loan
the Participant shall be entitled to its pro rata share in such application.
12. Sharing of Payments. If the Participant shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of its participation in the Working Capital Loan in
excess of its pro rata share of payments on account of its Participation,
Participant shall purchase from Bank of America such additional participations
in the Loans as shall be necessary to cause Participant to share such excess
payment ratably with Bank of America, provided that if all or any portion of
such excess payment is thereafter recovered from Participant, such purchase
shall be rescinded and the purchase price restored to the extent of such
recovery. Furthermore, Participant shall repay to Bank of America any sums paid
to Bank of America by the Borrower and distributed by Bank of America to
Participant which Bank of America shall be required to return to the Borrower or
to any receiver, trustee, or custodian for the Borrower. In the event
Participant fails or refuses to make any such payment or fails or refuses to
refund any amount required to be refunded to Bank of America pursuant to the
Paragraph 5, then, in addition to any of its rights at law or in equity, Bank of
America shall be entitled to refund by offset against Participant's portion of
all sums received by Bank of America under Paragraph 3 until reimbursed therefor
by such offset or by Participant. Any such amount paid by Bank of America on
behalf of Participant shall be payable to Bank of America on demand and shall
bear interest for each day from the date of such payment until it is repaid by
Participant at the Federal Funds Rate.
13. Liability of Bank of America. Bank of America shall not be liable
to Participant for any error in judgment or for any action taken or omitted to
be taken by Bank of America in effecting collection of the Working Capital Loan
or other amounts, except for any action taken or omitted to be taken by Bank of
America which constitutes willful misconduct or gross
negligence. Bank of America further shall not be liable to Participant for any
error in judgment or for any action taken or omitted to be taken by Bank of
America in good faith and believed by Bank of America to be within the
discretion or power conferred upon Bank of America by this Participation
Agreement or any of the Loan Documents. Bank of America will exercise the same
care in exercising its rights under and with regard to the Working Capital Loan,
any document executed in connection therewith and any collateral security
therefor and guarantee thereof as Bank of America exercises with respect to
similar loans in which no participations are allotted by Bank of America and
Bank of America shall have no liability or responsibility to Participant except
for actions taken or omitted to be taken by Bank of America which constitute
willful misconduct or gross negligence.
14. Reliance. Bank of America shall be entitled to rely upon any
writing, telegram, telex, telefacsimile or teletype message, resolution, notice,
consent, certificate, letter, cablegram, statement, or order or other documents
or conversation by telephone or otherwise reasonably believed by it to be
genuine and correct and to have been properly signed, sent or made, and upon
opinions of counsel and other professional advisors selected by Bank of America
in good faith.
15. Credit Decision. Participant acknowledges that it has (i) received
and approved copies of the Credit Agreement and other documents which evidence
or secure the Working Capital Loan and (ii) made an independent investigation
regarding the transactions described in the Loan Documents, including without
limitation the Working Capital Loan and other Loans, the adequacy of the
security therefor and the creditworthiness of the parties responsible for the
repayment thereof. Participant further acknowledges that Bank of America has
made no representation with respect to any of the foregoing or otherwise in
respect of the Working Capital Loan, the Loan Documents or any of the matters
described therein.
16. Notices of Action. Bank of America shall advise Participant of any
remedial action it proposes to take with respect to the Borrower or any
Collateral prior to taking such action.
17. Bank of America in its Individual Capacity. Bank of America and its
affiliates may, without liability to account, make loans to, accept deposits
from, act as trustee under indenture of, and generally engage in any kind of
banking or trust business with, the Borrower, or any of their respective
subsidiaries and affiliates as though it were not a party to this Participation
Agreement.
18. No Recourse. Notwithstanding any other term of this Participation
Agreement, Participant acknowledges and agrees that it shall have no recourse
against Bank of America for either the principal or interest or fees on the
Working Capital Loan, of the Credit Agreement or any other document executed in
connection therewith (except to the extent of Participant's Applicable
Commitment Percentage of amounts actually collected by Bank of America on the
Working Capital Loan) and that Bank of America's only obligation is to perform
as required under the terms of this Participation Agreement.
19. Tax Status. The Participant represents and warrants to, and agrees
with, Bank of America that under applicable law and treaties no taxes will be
required to be withheld by Bank of America with respect to any payment to be
made to the Participant hereunder.
20. Notices. Any notices or other communications required or permitted
hereunder shall be sufficiently given (i) if delivered personally, (ii) when
transmitted via telefacsimile to the telefacsimile number set forth below, (iii)
the day following the day on which the same has been delivered prepaid to a
national overnight air courier service providing overnight service to the place
of destination addressed as set forth below, or (iv) the third Business Day
following the day on which the same is sent by registered or certified mail,
postage prepaid, addressed as set forth below:
If to the Participant:
C/o Xxxxxx Xxxxxxx
New River Capital Partners
000 Xxxxxxxxx 0xx Xxxxxx,Xxxxx 1100
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Telefacsimile: 954.713.1175
Telephone: _____________________
if to Bank of America:
Bank of America, N. A.
000 Xxxxx Xxxxx Xxxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telefacsimile: 704.386.9923
21. Choice of Law. This Participation Agreement and all rights
conferred and obligations imposed hereunder shall be interpreted and construed
by reference to the laws (including the common law and choice of law rules) of
the State of Florida.
22. Entire Agreement, Etc. This Participation Agreement (a) embodies
the entire agreement between the parties and supersedes all prior agreements and
understandings between such parties, if any, relating to the subject matter
hereof, and may be amended only by an instrument in writing executed jointly by
an authorized officer of each party hereto, and (b) has been executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one agreement; but, in
making proof of this Participation Agreement, it shall not be necessary to
provide or account for more than one such counterpart.
23. Successors and Assigns. This Participation Agreement shall bind and
shall inure to the benefit of the parties hereto, their successors and assigns.
All references to Bank of America herein shall also refer to any successor
Lender and/or Agent, as their interests appear.
IN WITNESS WHEREOF, the parties have caused this Participation
Agreement to be executed, each by its duly authorized officer, all on the day
and year first above written.
BANK OF AMERICA, N. A.
By
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Name: Xxxxxx X. Xxxx, III
Title: Managing Director
PARTICIPANT:
Portion of Participation Amount: $150,000
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Xxxx Xxxx
Portion of Participation Amount: $200,000
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Xxxxxx Xxxxxxx
Portion of Participation Amount: $650,000
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Xxxxx Xxxxxxx
Participant Wire Instructions:
Bank: Bank of America, N.A., Tampa, Florida
ABA #000000000
Account No.: 0000000
Account Name: Berrard Holdings Limited Partnership
Attention: _________________________________
