MODIFIED AND RESTATED CREDIT AGREEMENT
BY AND BETWEEN
NATIONSBANK, N.A., successor by merger to
NATIONSBANK, N.A. (SOUTH), a national banking association
(the "Bank")
AND
THE XXXXXXX CO., a Florida corporation
(the "Borrower")
Dated July 15, 1997
MODIFIED AND RESTATED CREDIT AGREEMENT
THIS MODIFIED AND RESTATED CREDIT AGREEMENT (this "Restated Credit
Agreement"), made this 15 day of July, 1997, between THE XXXXXXX CO., a
Florida corporation (the "Borrower") and NATIONSBANK, N.A., successor by
merger to NATIONSBANK, N.A. (SOUTH), a national banking association (the
"Bank").
WITNESSETH:
WHEREAS, Bank extended a revolving line of credit in the amount of TWO
MILLION AND NO/100 DOLLARS ($2,000,000.00) (the "1996 Loan") to Borrower,
as evidenced by a Revolving Promissory Note in the amount of the 1996 Loan
dated June 26, 1996 (the "1996 Note"), which was be used by Borrower for
acquisitions; and
WHEREAS, Borrower executed among other loan documents, the following
documents with regard to the 1996 Loan:
A. Security Agreement dated June 26, 1996 from Borrower to Bank securing
Borrower's Collateral more particularly described therein (the
"Collateral") (the " Security Agreement");
B. Credit Agreement dated June 26, 1996 between Borrower and Bank (the
"Credit Agreement");
C. Security Interest in Trademarks dated June 26, 1996 from Borrower to
Bank (the "Trademarks Security");
D. UCC-1 Financing Statement from Borrower to Bank filed of record July
5, 1996, in Official Records Book 25098, Page 72, of the Public Records of
Broward County, Florida, securing the Collateral (the "County UCC-l"); and
E. UCC-1 Financing Statement filed with the Secretary of State, Florida
on July 8, 1996, under File Number 960000140290, securing the Collateral
(the "State UCC-1").
WHEREAS, Borrower and Bank agreed to release the Collateral as security
for the 1996 Loan pursuant to that certain letter agreement dated
September 5, 1996; and
WHEREAS, the County UCC-I was amended by the following financing statement:
A. UCC-3 Financing Statement from Borrower to Bank filed of record
September 9, 1996, in Official Records Book 25370 Page 371, of
the Public Records of Broward County, Florida, releasing the all
"Colgate-Palmolive Company" brands (the "County UCC-3");
B. UCC-3 Financing Statement from Borrower to Bank filed of record
September 9, 1996, in Official Records Book 25370 Page 371, of the Public
Records of Broward County, Florida, releasing all the Collateral (the
"Second County UCC-3");
and
WHEREAS, the State UCC-I was amended by the following financing statement:
A. UCC-3 Financing Statement filed with the Secretary of State, Florida
on September 9, 1996, under File Number 960000188643, all releasing the
"Colgate Palmolive Company" brands (the "State UCC-3");
B. UCC-3 Financing Statement filed with the Secretary of State, Florida
on September 18, 1996, under File Number 960000198196, releasing all the
Collateral (the "Second State UCC-3");
and
WHEREAS, the Security Agreement, Credit Agreement, Trademarks Security,
County XXX-0, Xxxxx XXX-0, Xxxxxx XXX-0, Xxxxxx Xxxxxx XXX-0, Xxxxx UCC-3,
Second State UCC-3 and any and all supplemental loan documents executed
therein are hereinafter collectively referred as to the "Security
Documents"; and
WHEREAS, Bank has agreed to: (i) extend a revolving line of credit in
the amount of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00) (the "1997
Loan") to Borrower, as evidenced by a Revolving Line of Credit Promissory
Note of even date herewith (the " 1997 Note"), which shall be used by
Borrower for acquisitions; and (ii) consolidate, modify and restate the
1996 Note and 1997 Note as evidenced by a Consolidated, Modified and
Restated Revolving Line of Credit Promissory Note in the original principal
amount of Five Million and No/100 Dollars ($5,000,000.00); and (iii) modify
and/or restate the Loan Documents; and
WHEREAS, Bank has agreed to provide such financing conditioned upon the
Borrower agreeing to the terms and conditions set forth in this Restated
Credit Agreement and to the execution of certain other documents in
connection therewith.
NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration, the receipt whereof is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS The following definitions will apply to this Restated
Credit Agreement as well as all other documentation involved in
this loan transaction:
A. "Bank" - NATIONSBANK, N.A., successor by merger to NATIONSBANK, N.A.
(SOUTH), a national banking association.
B. "Borrower" - THE XXXXXXX XX., a Florida corporation
C. "Consolidated Note" - is the Consolidated, Modified and Restated
Revolving Line of Credit Promissory Note in the original principal amount
of Five Million and No/100 Dollars ($5,000,000.00) from Borrower in
favor of Bank.
D. "Current Maturity Coverage" - is defined as the sum of Net income,
non-cash charges less dividends divided by the sum of current maturities of
long term debt. Borrower shall maintain a Current Maturity Coverage of
not less than I.75:1.00.
E. "Funded Debt/EBITDA" - is 2.50:1.00 to be tested quarterly on a
trailing monthly basis.
F. "LIBOR RATE" - The thirty (30) day LIBOR RATE, as published in the
Wall Street Journal as the average rate at which deposits in United States
of America dollars were offered in the London Interbank Market.
G. "Line of Credit" - The revolving line of credit loan from Bank to
Borrower in the principal amount of Five Million and No/100 Dollars
($5,000,000.00) as evidenced by that Consolidated Note.
H. "Loan Documents" - This term includes all documents which comprise
the loan documentation including, but not limited to the 1996 Note, the
1997 Note, the Consolidated Note, Credit Agreement, this Restated Credit
the Agreement, Acknowledgement, Agreement and Reaffirmation of Loan
Documents, the Commitment Letter dated May 26, 1997 between Bank
and Borrower and any and all other supplemental related loan documents.
I. "1996 Loan" - A revolving line of credit in the amount of Two Million
and No/100 Dollars ($2,000,000.00).
J. " 1997 Loan" - A revolving line of credit in the amount of Three
Million and No/100 Dollars ($3,000,000.00).
K. "1996 Note" The Promissory Note dated June 26, 1996 in the original
principal amount of the 1996 Loan from Borrower to Bank.
L. "1997 Note" - The Revolving Line of Credit Promissory Note of even
date herewith in the original principal amount of the 1997 Loan from
Borrower to Bank.
M. "Security Documents" - This term includes all documents which
comprise the loan documentation including, but not limited to Security
Agreement, Credit Agreement, Trademarks Security, County UCC-I, State
UCC-I, County UCC-3, Second County XXX-0, Xxxxx XXX-0, Xxxxxx Xxxxx XXX
0 between Bank and Borrower and any and all other supplemental related
loan documents.
2. INTEREST RATE. From the date hereof, the unpaid principal balance
of the Consolidated Note shall bear interest at the LIBOR RATE, plus 1.30%
3.DEFAULT RATE OF INTEREST. After maturity, whether by acceleration or
otherwise, or after the entry of judgment, at Holder's option, the entire
unpaid principal balance of the Line of Credit shall bear interest until
paid at an augmented annual rate (the "Default Rate") from and after the
stated or accelerated maturity of the Consolidated Note, or from and after
failure to pay on the due date any sum payable under the Consolidated Note
or under any other Loan Document (and the expiration of any applicable
grace period provided in the Consolidated Note or any such other Loan
Document for that payment), or from and after the occurrence of any other
default (whether concerned with the payment of money or otherwise) under
any Loan Document (and the expiration of any applicable grace period
provided in such Loan Document for the cure of that default); provided,
however that after judgment all such sums shall bear interest at the
greater of the Default Rate or the rate prescribed by applicable law for
judgments. The Default Rate shall be eighteen percent (18%) per annum.
4. MATURITY DATE. Provided there is no event of a monetary or
non-monetary default under the Consolidated Note or Loan Documents, the
entire principal balance and any unpaid charges, together with any accrued,
but unpaid, interest thereon shall be due and payable in full on JULY 15,
1999.
5. USE OF PROCEEDS. The proceeds shall be used by Borrower for
acquisitions. Borrower may use Line of Credit by borrowing thereunder,
repaying the line of credit in whole or part, and reborrowing provided no
default exists under the Line of Credit, Consolidated Note and the Loan
Documents and subject to Minimum Current Maturity Coverage, defined in
Section I above, and remaining terms and conditions set forth herein up
through JULY 13, 1999.
6. COLLATERAL. The Line of Credit is unsecured. The Borrower has
agreed, represented and warranted with Bank that Borrower shall not
encumber the brands acquired through the New Image Laboratories, Inc.
transaction and has executed an Agreement Not to Encumber of even date
herewith.
7. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Bank as follows:
A. Good Standing. Borrower is a corporation, duly organized,
validly existing and in good standing under the laws of Florida and has the
power and authority to own its property and to carry on its business in
each jurisdiction in which Borrower floes business.
B. Authority and Compliance. Borrower has full power and authority
to execute and deliver the Loan Documents and to incur and perform the
obligations provided for therein, all of which have been duly authorized by
all proper and necessary action of the appropriate governing body of
Borrower. No consent or approval of any public authority or other third
party is required as a condition to the validity of any Loan Document, and
Borrower is in compliance with all laws and regulatory requirements to
which it is subject.
C. Binding Agreement. This Agreement and the other Loan Documents
executed by Borrower constitute valid and legally binding obligations of
Borrower, enforceable in accordance with their terms.
D. Litigation. There is no actions, suits or, proceedings involving
Borrower pending or, to the knowledge of Borrower, threatened before any
court or governmental authority, agency or arbitration authority, except as
disclosed to Bank in writing and acknowledged by Bank prior to the date of
this Agreement, which involve or would adversely affect the transactions
contemplated herein or which could have an adverse affect on the Borrower's
business or financial condition.
E. No Conflicting Agreements. There is no charter, bylaw, stock
provision, partnership agreement or other document pertaining to the
organization, power or authority of Borrower and no provision of any
existing agreement, mortgage, indenture or contract binding on Borrower or
affecting its property, which would conflict with or in any way prevent the
execution, delivery or carrying out of the terms of this Agreement and the
other Loan Documents.
F. Ownership of Assets. Borrower has good title to its assets and
all the New Image Laboratories, Inc. brands, and its assets and the New
Image Laboratories, Inc. brands are free and clear of liens, except those
disclosed to Bank in writing prior to the date of this Agreement. Borrower
has executed and delivered to Bank a Agreement Not to Encumber as to the
New Image Laboratories, Inc. brands.
G. Taxes. All taxes and assessments due and payable by Borrower
have been paid or are being contested in good faith by appropriate
proceedings and the Borrower has filed all tax returns which it is required
to file.
H. Financial Statements. The financial statements of Borrower
heretofore delivered to Bank have been prepared in accordance with GAAP
applied on a consistent basis throughout the period involved and fairly
present Borrower's financial condition as of the date or dates thereof, and
there has been no material adverse change in Borrower's financial condition
or operations since March 30, 1997. All factual information furnished by
Borrower to Bank in connection with this Agreement and the other Loan
Documents is and will be accurate and complete on the date as of which such
information is delivered to Bank and is not and will not be incomplete by
the omission of any material fact necessary to make such information not
misleading.
I. Place of Business. Borrower's chief executive office is
located at 0000 Xxxx XxXxx Xxxx Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
J. Environmental The conduct of Borrower's business operations
and the condition of Borrower's property does not and will not violate any
federal laws, rules or ordinances for environmental protection, regulations
of the Environmental Protection Agency, any applicable local or state law,
rule, regulation or rule of common law or any judicial interpretation
thereof relating primarily to the environment or Hazardous Materials.
K. Continuation of Representations and Warranties. All
representations and warranties made under this Agreement shall be deemed to
be made at and as of the date hereof and at and as of the date of any
advance(s) under the 1996 Loan and/or 1997 Loan.
8. CONDITIONS PRECEDENT TO FIRST ADVANCE. The following are
conditions precedent to Bank's obligation to close and fund the Line of
Credit and the Borrower agrees to furnish the following to the Bank, as a
condition precedent to closing:
A. Purchase Agreement - Copy of the Purchase Agreement between
Borrower and New Image Laboratories, Inc. for Bank's complete review and
acceptance.
B. Liquidating Trust Agreement - Copy of the Liquidating Trust
Agreement.
C. Projections - Copy of the Projections to include New Image
Transaction.
D. Opinion Letter - Written opinion addressed to Bank, from
Borrower's attorney addressing the proposed 1997 Note, Consolidated Note,
Loan Documents and that the New Image Laboratories, Inc. brands are free
and clear of encumbrances, liens, pledges, mortgages, and other title
retention agreements ant] claims and in form and substance satisfactory to
Bank and its counsel.
E. Corporate Documents - Certified copies of the Articles of
Incorporation and Bylaws of Borrower, and all amendments thereto, together
with a Certificate of Good Standing of Borrower and proof of qualification
to do business in each jurisdiction business is conducted.
F. Corporate Resolutions - Resolution of Borrower authorizing
the 1997 Loan and Line of Credit and the execution of all documents
required hi connection with the 1997 Loan and Line of Credit.
G. The executed 1997 Note, Consolidated Note and Loan Documents
and other documents and instruments necessary or advisable in connection
with the 1997 Loan and Line of Credit.
H. Certification that there exists no pending or threatened
litigation, the result of which could have an adverse effect on the
business or financial condition of the Borrower.
I. All other documents required in connection with the 1997
Loan and Line of Credit.
9. CONDITIONS TO EACH ADVANCE.
A. There shall exist no event of default; the representations
and warranties contained in the Loan Documents shall be true and accurate;
there shall have occurred no material adverse change in the financial
condition of the Borrower or any other person liable for repayment of the
Line of Credit; and the Bank shall not have determined that the prospect of
payment or performance of the Line of Credit has been materially impaired.
B. Advances on the Line of Credit will be made by written
communication from a person reasonably believed by Bank to be an authorized
representative of Borrower. Unless otherwise agreed by the Bank, all
advances will be made to a demand deposit account maintained at the Bank in
the name of the Borrower.
10. FINANCIAL COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will, unless
Bank consents otherwise in writing (and without limiting any requirement of
any other Loan Document):
A. Financial Condition. Maintain Borrower's financial condition
as follows, determined in accordance with GAAP applied on a consistent
basis throughout the period involved except to the extent modified by the
following definitions:
i. Funded Debt/EBlTDA Coverage Ratio. Borrower will maintain
a minimum Funded Debt/EBlTDA Coverage Ratio of not more than 2.50:1.00
throughout the Line of Credit term. The Funded Debt/EBITDA Coverage Ratio
shall be tested quarterly beginning with the June 30, 1997 quarterly
financial statements on a trailing twelve month basis.
ii. Current Maturity Coverage Ratio. Borrower will maintain a
minimum Current Maturity Coverage Ratio of not less than 1.75:1.00
throughout the Line of Credit term.
B. Financial Statements and Other Information. Maintain a system
of in accordance with GAAP applied on a consistent basis throughout the
period involved, and in the event of default, permit Bank's officers or
authorized representatives to visit and inspect Borrower's books of account
and other records at such reasonable times and as often as Bank may desire,
and further pay the reasonable fees and disbursements of any accountants or
other agents of Bank selected by Bank for the foregoing purposes. Unless
written notice of another location is given to Bank, Borrower's books and
records will be located at Borrower's chief executive office set forth
above. All financial statements called for below shall be prepared in form
and content acceptable to Bank and by independent certified public
accountants acceptable to Bank, the same acceptance not to be unreasonably
withheld by Bank.
In addition, Borrower will:
i. Furnish to Bank annual audited unqualified
consolidated financial statements of Borrower for each fiscal year of
Borrower, within one hundred twenty (120) days after the close of each such
fiscal year.
ii. Furnish to Bank company prepared consolidated
financial statements of Borrower for each quarter of each fiscal quarter of
Borrower, within fifty (50) days after the close of each such period,
together with quarterly compliance certificates.
iii. Furnish to Bank a compliance certificate for
(and executed by an authorized representative of) Borrower concurrently
with and dated as of the date of delivery of each of the financial
statements as required in paragraphs i and ii above, containing (a) a
certification that the financial statements of even date are true and
correct and that the Borrower is not in default under the terms of this
Agreement, and (b) computations and conclusions, in such detail as Bank may
request, with respect to compliance with this Agreement, and the other Loan
Documents, including computations of all quantitative covenants.
11. AFFIRMATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Line of Credit Documents, Borrower will,
unless Bank consents otherwise in writing (and without limiting any
requirement of any other Loan Document):
A. Insurance. Maintain insurance with responsible
insurance companies on such of its properties, in such amounts and against
such risks as is customarily maintained by similar businesses operating in
the same vicinity, specifically to include fire and extended coverage
insurance covering all assets, business liability insurance, all to be with
such companies and in such amounts as are satisfactory to Bank and
providing for at least 30 days prior notice to Bank of any cancellation
thereof. Satisfactory evidence of such insurance will be supplied to Bank
prior to funding under the 1997 Loan and Line of Credit and 30 days prior
to each policy renewal.
B. Existence and Compliance. Maintain its existence,
good standing and qualification to do business, where required and comply
with all laws, regulations and governmental requirements including, without
limitation, environmental laws applicable to it or to any of its
properties, business operations and transactions and comply with OHSA, EPA,
Pension Guaranty Board and ERISA.
C. Adverse Conditions or Events. Promptly advise Bank
in writing of (i) any act, omission or undertaking which would singly or in
the aggregate have a materially adverse effect upon the business, assets,
liabilities, financial conciliation, results of operations or business
prospects of the Borrower, any of its subsidiaries, or upon the ability of
the Borrower to perform any material obligations arising under the Loan
Documents, (ii) any actual or potential contingent liabilities in excess of
Five Hundred Thousand and No/ 100 Dollars ($500,000.00), (iii) any
litigation against Borrower claiming damages in excess of Two Hundred Fifty
Thousand Dollars ($250,000.00), (iv) any event that has occurred that would
constitute an event of default under any Loan Documents and (v) any
uninsured or partially uninsured loss through fire, theft, liability or
property damage in excess of an aggregate of $250,000.00.
D. Taxes and Other Obligations. Pay all of its taxes,
assessments and other obligations, including, but not limited to taxes,
costs or other expenses arising out of this transaction, as the same become
due and payable, except to the extent the same are being contested in good
faith by appropriate proceedings in a diligent manner.
E. Maintenance. Maintain and preserve all licenses, trademarks, privileges,
permits, franchises, certificates and the like necessary for the operation
of its business.
F. Payment and Performance. Borrower shall promptly
pay and punctually perform, or shall cause to be promptly paid and
punctually performed, all of the obligations as and when due and payable.
G. Inspection. In the event of default, Borrower shall permit Bank and its
agents to inspect its records, assets and properties at any time during
normal business hours and at all other reasonable times.
H. Expenses. Borrower shall pay all costs and expenses
in connection with the Line of Credit and the preparation, execution, and
delivery of the Loan Documents including, but not limited to, fees and
disbursements of counsel appointed by Bank, and all recording costs and
expenses, documentary stamp tax and intangible tax on the entire amount of
funds disbursed under the Line of Credit, and other taxes, appraisals,
insurance and all other fees, costs and expenses, if any, set forth in the
Commitment, the Loan Documents, or otherwise connected with the Line of
Credit transaction.
I. Preservation of Agreements. Borrower shall preserve
and keep in full force and effect all agreements, approvals, permits and
licenses necessary for the development, use and operation of its assets for
their intended purpose or purposes.
J. Books and Records. Borrower shall keep and
maintain, at all times, full, true and accurate books of accounts and
records, adequate to correctly reflect the results of the development, use
and operation of its assets and properties. The Bank shall have the right
to examine such books and records and to make such copies or extracts
therefrom as the Bank shall require.
K. Indemnification. Notwithstanding anything to the
contrary contained in Section 8 (I), Borrower shall indemnify, defend and
hold Bank and its successors and assigns harmless from and against any and
all claims, demands, suits, losses, damages, assessments, fines, penalties,
costs or other expenses (including reasonable attorneys' fees and court
costs) arising from or in any way related to any of the transactions
contemplated hereby. The Borrower's obligations under this paragraph shall
survive the repayment of the Line of Credit.
L. Comply with GAAP. Borrower shall comply with generally accepted
accounting principals which are to be applied consistently throughout
the term of the Line of Credit.
M. Performance of Loan Documents. Borrower shall duly
and punctually perform all covenants, terms and agreements expressed as
binding upon it under 1996 Note, 1997 Note, Consolidated Note and all of
the Loan Documents.
12. NEGATIVE COVENANTS. Until full payment and performance
of all obligations of Borrower under the Consolidated Note and/or Loan
Documents, Borrower will not, without the prior written consent of Bank,
which consent shall not be unreasonably withheld (and without limiting any
requirement of any other Loan Documents):
A. Transfer of Assets or Control. Sell, lease, assign
or otherwise dispose of or transfer any existing assets, except in the
normal course of its business, or enter into any merger or consolidation,
or transfer control or ownership of the Borrower or form or acquire any
subsidiary that would result in the Borrower not being the surviving
entity.
B. Management Change. Change or remove Xxxxx X. Xxxxxx
from his current management positions as President and Chief Executive
Officer of Borrower.
C. Advances to Third Parties. No advances in aggregate
of more than One Million Dollars ($ 1,000,00.00) at any one time during the
life of Line of Credit, except for acquisitions.
D. Other Liens. Create or permit to be created or to
remain, any mortgage, pledge, construction lien or other lien, conditional
sale or other title retention agreement, encumbrance, claim, or charge on
the assets or income therefrom. Any transaction prohibited under this
paragraph shall be null and void.
E. Character of Business. Change the general character
of business as conducted at the date hereof, or engage in any type of
business not reasonably related to its business as presently conducted
without prior consent of Bank. Bank shall not unreasonably withhold its
consent.
F. Borrower's Certificate of Incorporation. Materially
amend or modify its articles or certificate of incorporation or bylaws.
13. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay
to Bank immediately upon demand the full amount of all costs and expenses,
including reasonable attorneys' fees (to include outside counsel fees and
all allocated costs of Bank's in-house counsel if permitted by applicable
law), incurred by Bank in connection with (a) negotiation and preparation
of this Agreement and each of the Loan Documents, and (b) all other costs
and attorneys' fees incurred by Bank for which Borrower is obligated to
reimburse Bank in accordance with the terms of the Loan Documents.
Additionally, Borrower shall pay any documentary stamps, intangible taxes
and filing, search and recording fees and the costs of any appraisal and
environmental report required by Bank. Borrower shall also be responsible
and liable for, and shall hold Bank harmless from, all expenses and costs
in connection with the administration and enforcement of any of Borrower's
obligations to Bank. If at any time the State of Florida shall determine
that the Documentary Stamps affixed thereto, if any, are insufficient, and
that additional Documentary Stamps should be affixed, then Borrower shall
pay for the same, together with any interest or penalties imposed in
connection with such determination, and Borrower hereby agrees to indemnify
and hold Bank harmless therefrom. If any such sums shall be advanced by
Bank, they shall bear interest, shall be paid and shall be secured as
provided in the Loan Documents.
14. DEFAULTS AND REMEDIES. If any one or more of the
following events of default (an "Event of Default") shall occur for any
reason whatsoever (and whether such occurrences shall be voluntarily or
involuntary, or come about or be effected by operation of law or pursuant
to or in compliance with any judgment, decree or order of any court, or any
order, rule or regulation of any administrative or governmental body), that
is to say:
(a) any representation or warranty made herein or in
any report, certificate, financial statement or other instrument furnished
in connection with this Restated Credit Agreement or the borrowings
hereunder, shall prove to be false or misleading in any respect;
(b) default shall occur in the payment of principal or
interest on any indebtedness created hereunder, when and as the same shall
become due and payable, whether at the due date or by acceleration or
otherwise, which remains after the due date of such payment; or failure of
the Borrower to make payment of principal or interest on any other
indebtedness beyond any period or grace provided with respect thereto, or
in the performance of any other agreement, term or condition contained in
any agreement under which any such obligation is created;
(c) any default or violation shall occur on the part
of the Borrower in the due observance or performance of any covenant,
agreement or other provision of this Restated Credit Agreement, the Loan
Commitment, or any other agreement, instrument or contract with Bank, other
than for the payment of money, which shall remain uncured past any cure
period provided for herein or therein, and if no such cure period is
specified, if such default shall remain uncured for ninety (90) days after
notice of such default or violation has been given by Bank to Borrower, or
after Borrower has knowledge of such default or violation, whichever is
earlier;
(d) Borrower shall (i) apply for or consent to the
appointment of a receiver, trustee in bankruptcy for benefit of creditor's,
or liquidator of Borrower or of any of Borrower's assets and/or properties;
(ii) admit in writing Borrower's inability to pay its debts as they mature
or generally fail to pay its debts as they mature; (iii) make a general
assignment for the benefit of creditors; (iv) be adjudicated as bankrupt or
insolvent; (v) file a voluntary petition in bankruptcy, or a petition or an
answer seeking reorganization or an arrangement with creditors, or seeking
to take advantage of any bankruptcy, reorganization, insolvency,
readjustment of debt, dissolution of liquidation law or statue of an answer
admitting an act of bankruptcy alleged in a petition filed against it in
any proceeding under any such law; or (vi) take any action for the purpose
of affecting any of the foregoing;
(e) an order, judgment or decree shall be entered
against the Borrower without its application, approval or consent, or by
any court of competent jurisdiction, approving a petition seeking its
reorganization or appointing a receiver, trustee or liquidator of the
Borrower or of all or a substantial part of any of its assets, and such
order, judgment or decree shall continue unstayed and in effect for a
period of thirty (30) days from the date of entry thereof;
(f) final judgments for the payment of money in excess
of Two Hundred Fifty Thousand Dollars ($250,000.00), shall be rendered
against the Borrower and the same shall remain undischarged for a period of
thirty (30) consecutive days during which execution shall not be
effectively stayed;
(g) any monies, deposits or other property of the
Borrower now or hereafter on deposit with, or in the possession or under
control of the Bank, shall be attached or become subject to distraint
proceedings or any order or process of Court;
(h) any material adverse change in the financial or business condition
of Borrower;
(i) any of the Bank's security interests in connection
with the Line of Credit are invalidated;
(j) Borrower's corporate existence is changed;
(k) Borrower fails to indemnify and repay Bank, upon
demand, for additional Documentary Stamps imposed by any governmental
entity within fifteen (15) days of such demand by Bank, including the
payment of any penalties, interest, and other charges;
(l) Borrower defaults on any other obligation to Bank;
THEN, and in every such Event of Default, the Bank may, at
its option, upon written notice to Borrower, (i) declare all indebtedness
of principal and interest hereunder forthwith to be due and payable,
whereupon the Consolidated Note shall become due and payable, both as to
principal and interest, without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived, anything contained
herein or in such Line of Credit to the contrary notwithstanding, and (ii)
exercise all legal rights and remedies against Borrower or any assets for
the indebtedness of Borrower to Bank. Bank shall also have the following
specific rights and remedies:
(a) To require Borrower to assemble and make available
to Bank at a place to be designated by Bank which is also reasonably
convenient to Borrower all documentation regarding Borrower's right, title
and interest in the assets and properties.
(b) To exercise any and all rights of set-off which
Bank may have against any account funds (excluding investment funds), or
assets and properties belonging to Borrower which shall be in Bank's
possession or under its control.
(c) To cure such defaults, with the result that all
costs and expenses incurred or paid by Bank in effecting such cure shall be
additional charges on the Line of Credit which bear interest at the
interest rate of the Line of Credit and are payable upon demand.
The proceeds of any disposition of the assets and/or
properties for the Line of Credit shall be used to satisfy the following
items in the order they are listed:
(a) The expenses of taking, removing, storing,
repairing, holding, and selling the Collateral, including any legal costs
and attorneys' fees. If the Consolidated Note is referred to an attorney
for collection, Borrower and all others liable for the Line of Credit
jointly and severally agree to pay reasonable attorneys' fees (including
appellate, administrative and bankruptcy fees and costs) and legal
expenses.
(b) The expense of liquidating or satisfying any
liens, security interests, or encumbrances on the Collateral which may be
prior to the security interest of Bank.
(c) Any unpaid fees, accrued interest, and then the
unpaid principal amount of the Line of Credit.
(d) Any other indebtedness of Borrower to Bank.
If the proceeds realized from the disposition of the assets
and/or properties shall fail to satisfy any of the foregoing items,
Borrower and all other liable for the Line of Credit shall forthwith pay
any deficiency to Bank upon demand.
15. CROSS DEFAULT. A default or breach under any of the
terms of conditions of the 1997 Note, Consolidated Note and Loan Documents
or any credit facility with Bank, or any agreement to which Borrower is
obligated, shall at Bank's option, constitute a default under the Line of
Credit.
16. NOTICE. All notices required or allowed to be given
hereunder shall be delivered by hand or sent by certified mail return
receipt requested, overnight courier or facsimile transmission, to the
party to which such notice is to be given as follows:
If to Borrower: THE XXXXXXX CO.
0000 Xxxx XxXxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, CFO
If to Bank: NATIONSBANK, N.A., successor
by merger to NATIONSBANK,
N.A. (SOUTH) Commercial Banking
XxxxxxxXxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
and a copy to: XXXX X. MAY, Esquire
MAY, XXXXXXX & XXXXXX,
P.A.
NationsBank Tower, Suite 2602
One Financial Plaza
Xxxx Xxxxxxxxxx, XX 00000
Provided, that additional or other addresses for the giving
of notice may be thereafter designated by the giving of written notice
thereof to the other party. Such notices shall be deemed given or made
three (3) business days following deposit in the U.S. Mail, certified
return receipt requested, or immediately upon receipt if delivered by hand,
overnight courier or facsimile transmission addressed as herein provided.
17. MISCELLANEOUS. Borrower and Bank further covenant and
agree as follows, without limiting any requirement of any other Loan
Document:
A. Cumulative Rights and No Waiver. Each and every
right granted to Bank under any Loan Document, or allowed it by law or
equity shall be cumulative of each other and may be exercised in addition
to any and all other rights of Bank, and no delay in exercising any right
shall operate as a waiver thereof, nor shall any single or partial exercise
by Bank of any right preclude any other or future exercise thereof or the
exercise of any other right. Borrower expressly waives any presentment,
demand, protest or other notice of any kind, excluding a notice of intent
to accelerate and notice of acceleration under which circumstances, Bank
shall give notice to Borrower. No notice to or demand on Borrower in any
case shall, of itself, entitle Borrower to any other or future notice or
demand in similar or other circumstances.
B. Applicable Law. This Restated Credit Agreement and
the rights and obligations of the parties hereunder shall be governed by
and interpreted in accordance with the laws of Florida and applicable
United States federal law.
C. Amendment. No modification, consent, amendment or
waiver of any provision of this Restated Credit Agreement, nor consent to
any departure by Borrower therefrom, shall be effective unless the same
shall be in writing and signed by an officer of Bank, and then shall be
effective only in the specified instance and for the purpose for which
given. This Restated Credit Agreement is binding upon Borrower, its
successors and assigns, and inures to the benefit of Bank, its successors
and assigns; however, no assignment or other transfer of Borrower's rights
or obligations hereunder shall be made or be effective without Bank's prior
written consent, nor shall it relieve Borrower of any obligations
hereunder. There is no third party beneficiary of this Restated Credit
Agreement.
D. Documents. All documents, certificates and other
items required under this Restated Credit Agreement to be executed and/or
delivered to Bank shall be in form and content satisfactory to Bank and its
counsel.
E. Partial Invalidity. The unenforceability or
invalidity of any provision of this Restated Credit Agreement shall not
affect the enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of any Loan Document to any
person or circumstance shall not affect the enforceability or validity of
such provision as it may apply to other persons or circumstances.
F. Indemnification. Notwithstanding anything to the
contrary contained in paragraph E above, Borrower shall indemnify, defend
and hold Bank and its successors and assigns harmless from and against any
and all claims, demands, suits, losses, damages, assessments, fines,
penalties, costs or other expenses (including reasonable attorneys' fees
and court costs) arising from or in any way related to any of the
transactions contemplated hereby. The Borrower's obligations under this
paragraph shall survive the repayment of the Line of Credit.
G. Survivability. All covenants, agreements,
representations and warranties made herein or in the other Loan Documents
shall survive the making of the Loan and shall continue in full force and
effect so long as the Line of Credit is outstanding or the obligation of
the Bank to make any advances under the Line shall not have expired.
H. Personal. This Restated Credit Agreement is personal in nature and may
not be assigned.
I. Gender/Plural. Wherever used herein the singular number shall include
the plural and the plural the singular, and the use of any gender shall
include all genders. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their heirs, successors, personal
representatives and assigns.
J. Document Conflict. If the terms and provisions of
this Restated Credit Agreement conflict with any terms and provisions of
any other related loan documents executed in connection herewith, the terms
and provisions herein shall control.
18. WAIVER OF JURY TRIAL: BORROWER AND BANK HEREBY
KNOWINGLY, IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY ACTION, PROCEEDING, DEFENSE OR COUNTERCLAIM BASED ON
THIS RESTATED CREDIT AGREEMENT, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS RESTATED CREDIT AGREEMENT, OR
REVOLVING LINE OF CREDIT PROMISSORY NOTE, CONSOLIDATED AND
RESTATED PROMISSORY NOTE, OR ANY OTHER LOAN DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO
OR TO ANY LOAN DOCUMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR BORROWER AND BANK ENTERING INTO THE SUBJECT
LINE OF CREDIT TRANSACTION.
IN WITNESS WHEREOF, the parties hereto set their hands and seals
the day and year first above written.
Witnesses: BORROWER:
THE XXXXXXX CO., a Florida
corporation
___________________ By: _________________________
XXXXX X. XXXXXXX
Financial Officer
____________________ [Corporate Seal]
BANK: NATIONSBANK, N.A., successor
by merger to NATIONSBANK, N.A.
(SOUTH), a national banking
association
_____________________ By: _________________________
Xxxxx Xxxxxxxxxxxx,
Vice President
_______________________
