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EXHIBIT 10.3
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT is entered into
as of July 16, 1998, by and between XxxxXxxxxx.XXX, Inc., a Georgia corporation
("BORROWER"), ITC Service Company, a Georgia corporation ("LENDER"), and ITC
Holding Company, Inc., a Delaware corporation.
BACKGROUND
WHEREAS, HeadHunters, L.L.C., a Delaware limited liability company and
predecessor to Borrower ("PREDECESSOR"), and ITC Holding Company, Inc. entered
into that certain Loan and Security Agreement, dated as of October 30, 1997,
(the "ORIGINAL LOAN AND SECURITY AGREEMENT"); and
WHEREAS, Borrower and ITC Holding Company, Inc. have agreed to amend
and restate the Original Loan and Security Agreement in the manner hereinafter
set forth for the purpose, among others, of providing that Lender shall replace
ITC Holding Company, Inc. for all purposes under the Original Loan and Security
Agreement, as so amended and restated;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter set forth, the parties hereby agree to
amend and restate the Original Loan and Security Agreement in its entirety such
that on and after the date hereof, it shall read in its entirety as follows:
1. LOANS
1.1. REVOLVING CREDIT LOAN
Subject to the terms and conditions set forth in SECTION 3
below, during the period beginning on the date hereof (the "CLOSING DATE") and
ending (the "ENDING DATE") on the earlier of: (i) December 31, 1998 or (ii) the
closing of an initial public offering of equity securities by Borrower, Lender
shall make advances (the "REVOLVING CREDIT LOAN") to Borrower in such amounts
(each a "BORROWING") as Borrower shall reasonably request from time to time,
provided that the maximum outstanding aggregate principal amount of all such
advances shall at no time exceed $2,500,000 (the "COMMITMENT"). Each Borrowing
shall be made upon written or e-mail notice of the Borrower, received by the
Lender not later than 5:00 PM five (5) Business Days (as hereinafter defined)
prior to the date of the proposed Borrowing, and the amount of such proposed
Borrowing shall not be in an amount of less than $100,000. Under the Revolving
Credit Loan, Borrower
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may borrow, repay, and reborrow, subject to the limitations set forth above.
The Revolving Credit Loan shall be evidenced by a promissory note of Borrower
(the "NOTE"), dated the Closing Date and in substantially the form of the
promissory note attached hereto as EXHIBIT A (the terms and provisions of which
Note are incorporated herein by reference), and shall be secured as hereinafter
set forth.
1.2. INTEREST
The outstanding principal amount of the Revolving Credit
Loan shall bear interest at the following rate or rates, as applicable: (1) the
applicable annual rate of interest on the portion of the outstanding principal
amount of the Revolving Credit Loan from time to time that is equal to One
Million Dollars ($1,000,000) or less will be the rate approximating Lender's
cost of debt capital as reasonably determined, from time to time, by Lender;
and (2) the applicable annual rate of interest on the portion of the
outstanding principal amount of the Revolving Credit Loan from time to time
that is greater than One Million Dollars ($1,000,000) will be the rate of
fourteen percent (14%). Lender shall notify Borrower in writing or by e-mail
(the "INTEREST NOTICE") of any adjustment in such interest rate and any such
adjustment to such interest rate shall be effective as of the fifth day of the
next calendar month after Borrower's receipt of the applicable Interest Notice.
Interest shall be payable monthly in arrears within ten
days after the close of each calendar month.
1.3. ISSUANCE OF STOCK PURCHASE WARRANT
Subject to the terms and conditions set forth in SECTION 3
hereof, Borrower shall issue to Lender on the Closing Date a stock purchase
warrant (the "WARRANT"), in substantially the form of the stock purchase
warrant attached hereto as EXHIBIT B. The terms and provisions of such Warrant
are incorporated herein by reference.
1.4. USE OF PROCEEDS
The proceeds of Revolving Credit Loan shall be used by
Borrower only to: (i) provide Borrower with funds for working capital and
capital improvements, and (ii) for other lawful corporate purposes.
2. REPRESENTATIONS AND WARRANTIES OF BORROWER
In order to induce Lender to enter into this Agreement and
to make the Revolving Credit Loan, Borrower hereby makes the following
representations and warranties to Lender, which representations and warranties
shall survive the execution and delivery hereof and of the Note:
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2.1. ORGANIZATION AND STANDING; AUTHORITY
Borrower (a) is a corporation duly organized, validly
existing, and in good standing under the laws of the state of its
incorporation, (b) is qualified to do business as a foreign corporation and is
in good standing in all jurisdictions where its activities or ownership of
property require such qualification, except for any such jurisdictions where
the failure to be so qualified would not have a material adverse effect on the
ability of Borrower to perform or comply with all terms, conditions, and
agreements to be performed or complied with by Borrower under this Agreement or
under any of the other Loan Documents (as hereinafter defined), or to perform
the transactions contemplated hereby or thereby, and (c) has the power and
authority to own, operate, and lease its properties, to carry on its business
as currently conducted, to execute and deliver and perform this Agreement, the
Note, and any other instruments or agreements executed pursuant hereto or
thereto (this Agreement, the Note, and such other instruments and agreements
hereinafter collectively referred to as the "LOAN DOCUMENTS"), to incur the
obligations provided for in the Loan Documents, and to perform the transactions
contemplated in the Loan Documents (including, without limitation, the creation
of a first lien and security interest in favor of Lender in the Collateral (as
hereinafter defined)), all of which have been duly and validly authorized by
all proper and necessary action (all of which actions are in full force and
effect).
2.2. APPROVALS
No approval, consent or other action by any governmental
authority or by any other person or entity, which has not been obtained, is or
will be necessary to permit the valid execution, delivery or performance by
Borrower of this Agreement or any of the other Loan Documents.
2.3. BINDING EFFECT, NO VIOLATIONS
Each of the Loan Documents, upon its execution and
delivery, will constitute a legal, valid, and binding obligation of Borrower,
enforceable against Borrower in accordance with its terms. The execution,
delivery, and performance of the Loan Documents will not (a) violate, conflict
with, or constitute a default under, any law, regulation, order or any other
requirement of any court, tribunal, arbitrator, or governmental authority, any
terms of the Borrower's Articles of Incorporation, or any material contract,
agreement or other arrangement binding upon or affecting Borrower or any of its
properties, or (b) result in the creation, imposition or acceleration of any
indebtedness or any mortgage, pledge, lien, charge, reservation, covenant,
restriction, security interest, or other encumbrance (an "ENCUMBRANCE") of any
nature upon, or with respect to, Borrower or any of its properties (other than
the Encumbrance created pursuant to the Loan Documents).
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2.4. LITIGATION
There is no claim, litigation, proceeding, or investigation
pending, threatened or reasonably anticipated against or affecting Borrower and
relating to this Agreement, any of the other Loan Documents, or any of the
transactions contemplated hereby or thereby, before or by any court, tribunal,
arbitrator, or governmental authority.
2.5. TITLE TO ASSETS
As of the date hereof, Borrower has good, valid, and
marketable title to all of its properties and assets (whether real or
personal), and there exist no Encumbrances on any of Borrower's properties or
assets, including, without limitation, the Collateral, other than those set
forth in EXHIBIT C attached hereto. All personal property of Borrower is in
good operating condition and repair, and is suitable and adequate for the uses
for which it is being used. Upon the execution and delivery of this Agreement,
and upon the filing of financing statements as referred to in SECTION 5.2
hereof and/or the taking by Lender of possession of the Collateral on or prior
to the date hereof, as the case may be, Lender will have a good and valid
security interest in the Collateral, subject to no Encumbrance in favor of any
other person or entity.
2.6. INFORMATION
The statements made and the documents delivered by Borrower
to Lender in connection with this Agreement and the other Loan Documents are
true, correct and complete in all material respects and omit no material facts
which are necessary to prevent such statements from being misleading.
2.7. NO CHANGE
No change in the business, operations, properties or
condition (financial or otherwise) of Borrower, or any other event, has
occurred since the date of the most recent information submitted to Lender by
Borrower as described in SECTION 2.6 hereof, which change could reasonably be
expected to have a material adverse effect on the ability of Borrower to
perform or comply with all terms, conditions, and agreements to be performed or
complied with by Borrower under this Agreement or under any of the other Loan
Documents, or to perform the transactions contemplated hereby and thereby.
2.8. TAXES
Both Predecessor and Borrower have filed all tax returns
and reports required by any governmental authority to be filed by either
Predecessor or Borrower, and such returns and reports are true and correct in
all material respects. Both Predecessor and Borrower have paid all taxes,
assessments, and
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other government charges imposed upon them or their income, profits or
properties, or upon any part thereof, other than those presently payable
without penalty or interest and those which are being contested in good faith.
2.9. NO DEFAULT
No Event of Default (as hereinafter defined), and no event
which with notice, lapse of time or other condition would constitute an Event
of Default, has occurred and is continuing.
2.10. COMPLIANCE WITH LAWS
Borrower has complied and is in compliance with all
applicable laws, regulations, orders, and other requirements of any
governmental authority or arbitrator, and with all terms of Borrower's Articles
of Incorporation and each agreement or other arrangement binding upon or
affecting Borrower or any of its properties, except for any non-compliance with
any of the foregoing which would not have a material adverse effect on the
ability of the Borrower to perform or comply with all terms, conditions, and
agreements to be performed or complied with by Borrower under this Agreement or
under any of the other Loan Documents, or to perform the transactions
contemplated hereby or thereby.
2.11. LICENSES AND CONTRACTS
All material franchises, licenses, permits, certificates,
consents, approvals, authorizations, agreements, and contracts necessary to
operate Borrower's business as it currently is being operated have been
obtained and are in full force and effect.
2.12. CAPITAL STOCK
The capital stock of Borrower (the "Capital Stock")
described on EXHIBIT D hereto constitutes all the issued and outstanding
Capital Stock of the Borrower. Except for the Warrant and as set forth on
EXHIBIT D hereto, no person has conversion rights with respect to, or any
subscription rights, calls, committments or claims of any character for, or any
repurchase or redemption options relating to the Capital Stock of Borrower.
There are no outstanding contractual obligations of Borrower to repurchase,
redeem or otherwise acquire any of its Capital Stock or make any material
investment (in the form of a loan, capital contribution or otherwise) in any
other person. As of the date hereof, all of the Capital Stock of Borrower will
be duly issued, fully paid and non-assessable.
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3. CONDITIONS PRECEDENT
3.1. CONDITIONS PRECEDENT TO FIRST ADVANCE OF REVOLVING CREDIT
LOAN ON OR AFTER THE DATE HEREOF
The obligation of Lender to make the first advance of the
Revolving Credit Loan on or after the date hereof is subject to the
satisfaction (in the reasonable judgment of Lender), at or before the date of
such advance, of the following conditions precedent:
3.1.1. REPRESENTATIONS AND WARRANTIES; COMPLIANCE
All representations and warranties made by Borrower in
this Agreement or any of the other Loan Documents shall be true and correct in
all material respects on and as of the date of such advance with the same force
and effect as though such representations and warranties had been made on and
as of the date of such advance. All of the agreements, terms, covenants, and
conditions required by this Agreement to be complied with and performed prior
to the date of such advance by Borrower shall have been complied with and
performed.
3.1.2. DOCUMENTS
Borrower shall deliver to Lender copies of all documents
and other items reasonably requested by Lender evidencing Borrower's authority
to enter into and perform this Agreement and the other Loan Documents.
3.1.3. EXECUTED NOTE AND OTHER LOAN DOCUMENTS
Borrower shall deliver to Lender the fully executed Note
and fully executed copies of all other Loan Documents.
3.1.4. FINANCING STATEMENTS
All Financing Statements deemed necessary by Lender under
SECTION 5 hereof shall have been properly filed and shall be effective as
required by Lender.
3.2. CONDITIONS PRECEDENT TO THE SECOND AND EACH SUBSEQUENT
ADVANCE OF THE REVOLVING CREDIT LOAN
The obligation of Lender to make the second and each
subsequent advance of the Revolving Credit Loan, is subject to the satisfaction
(in the reasonable judgment of Lender), as of the date of each such Revolving
Credit Loan advance, of the conditions precedent specified in SECTION 3.1
hereof.
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4. COVENANTS OF BORROWER
Until all obligations of Borrower under this Agreement and
the other Loan Documents are paid in full and performed, Borrower hereby
covenants and agrees that it shall, unless Lender otherwise consents in advance
in writing:
4.1. PAYMENT OF NOTE
Punctually pay the principal of and interest on the Note at
the times and places and in the manner specified therein.
4.2. CORPORATE EXISTENCE
Preserve, maintain, and keep in full force and effect its
existence as a corporation in the State of Georgia.
4.3. CORPORATE RIGHTS AND FRANCHISES; QUALIFICATION; CONDUCT OF
BUSINESS
Preserve, maintain, and keep in full force and effect all
franchises, licenses, permits, certificates, consents, approvals,
authorizations, agreements, and contracts material to the operation of
Borrower's business as it currently is being conducted, whether now existing or
hereafter granted to or obtained by Borrower; qualify and remain qualified as a
foreign corporation in each jurisdiction in which such qualification is
necessary in view of its activities and ownership of property; and continue to
engage in a business of the same general type as now conducted by it.
4.4. TAXES, CHARGES, AND OBLIGATIONS
Pay and discharge all taxes, assessments, and governmental
charges or levies imposed upon it or upon its income, profits, properties or
any part thereof, prior to the date on which penalties attach thereto, as well
as all claims which, if unpaid, might become an Encumbrance upon any properties
of Borrower, and pay, discharge or otherwise satisfy at or before maturity or
before they become delinquent, as the case may be, all of the indebtedness and
other obligations of whatever nature of Borrower; provided, however, that
Borrower shall not be required to pay any such tax, assessment, charge, levy,
claim, indebtedness or obligation so long as (a) the validity thereof is being
contested by Borrower in good faith and by proper proceedings, (b) Borrower
sets aside on its books adequate reserves therefor, and (c) in the case where
any such tax, assessment, charge, claim or levy might become an Encumbrance
upon any item of the Collateral or any part thereof, Borrower makes
arrangements acceptable to Lender to secure the payment thereof.
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4.5. MAINTENANCE OF COLLATERAL
Keep all Collateral in good repair, working order, and
condition, and from time to time make all necessary repairs thereof.
4.6. INSURANCE
Maintain and keep in full force and effect, with
financially sound and reputable insurance companies acceptable to Lender,
insurance in such amounts and covering such risks as is usually carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which Borrower operates. Lender shall be named as an
additional insured with Borrower on all policies insuring any of the
Collateral. Additionally, Borrower shall use its reasonable best efforts to
obtain and maintain a key man insurance policy on the life of Xxxxxx Xxxx,
President of Borrower (the "KEY MAN LIFE INSURANCE POLICY"), in the amount of
at least $3,500,000. Such policy must be reasonably satisfactory in form and
content to Lender and shall provide that, in the event a payment is made
thereunder, the insurance company shall be obligated to pay directly to Lender
an amount equal to the outstanding amount of the Obligations (as hereinafter
defined).
4.7. COMPLIANCE WITH LAWS
Comply with all applicable laws, regulations, orders, and
other requirements of any court, tribunal, arbitrator, or governmental
authority, non-compliance with which could have a material adverse effect on
the business, operations, property or condition (financial or otherwise) of
Borrower.
4.8. BOOKS AND RECORDS
Keep and maintain adequate and proper records and books of
account, in which complete entries are made in accordance with generally
accepted accounting principles consistently applied and in accordance with all
laws, regulations, orders, and other requirements of any court, tribunal,
arbitrator, or governmental authority, reflecting all financial and other
transactions of Borrower normally and customarily included in records and books
of account of companies engaged in the same or similar businesses and
activities as Borrower.
4.9. ACCESS TO BORROWER'S EMPLOYEES, PROPERTIES, AND BOOKS AND
RECORDS
Permit Lender and any agents or representatives thereof,
during normal business hours and upon reasonable notice to Borrower, to visit
and inspect the properties of Borrower, to examine and make abstracts from any
of Borrower's books and records, and to discuss the business, operations,
properties, and condition (financial or otherwise) of Borrower with any of the
officers, directors,
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employees, agents or representatives (including, without limitation, the
independent certified public accountants) of Borrower.
4.10. FINANCIAL STATEMENTS
Furnish to Lender (a) within one hundred twenty (120) days
after the end of each fiscal year of Borrower, the audited balance sheet of
Borrower as of the end of such fiscal year and the related audited statements
of income, changes in stockholders' equity and changes in financial position of
Borrower for such fiscal year, all prepared in accordance with generally
accepted accounting principles consistently applied, and certified without
qualification by an independent certified public accountant of recognized
standing; (b) within sixty (60) days after the end of each quarter of each
fiscal year of Borrower, a balance sheet and related statement of income,
changes in members' equity, and changes in financial position of Borrower, as
of the end of such quarter, certified by Borrower's chief financial officer as
having been prepared in accordance with generally accepted accounting
principles consistently applied; and (c) not later than fifteen (15) days after
each calendar month end, a balance sheet and income statement of Borrower as of
the last day of such month.
4.11. COLLATERAL
Execute, deliver, and file, or cause the execution,
delivery, and filing of, any and all documents (including, without limitation,
financing statements and continuation statements), necessary or desirable for
Lender to create, perfect, preserve, validate, or otherwise protect a first
lien and security interest in the Collateral; maintain, or cause to be
maintained, at all times Lender's first lien and security interest in the
Collateral; immediately upon learning thereof, report to Lender any
reclamation, return or repossession of any goods forming a part of the
Collateral, any material claim or dispute asserted by any debtor with respect
to any material account, and any other matters materially affecting the value
or enforceability or collectibility of any of the Collateral; defend the
Collateral against all claims and demands of all persons at any time claiming
the same or any interest therein adverse to Lender, and pay all costs and
expenses (including reasonable attorneys' fees and expenses) incurred in
connection with such defense; at Borrower's sole cost and expense (including
legal costs and reasonable attorneys' fees and expenses), settle any and all
stock claims, demands, and disputes, and indemnify and protect Lender against
any liability, loss or expense arising from any such claims, demands, or
disputes or out of any such reclamation, return or repossession of goods
forming a part of the Collateral and provide Lender with not less than thirty
(30) days prior notice before changing the location of its chief executive
office or any of its places of business.
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4.12. NOTICE OF DEFAULT AND LOSS
Give immediate notice to Lender upon the occurrence of any
Event of Default or event which with notice or lapse of time or otherwise would
constitute an Event of Default and of any material loss or damage to any of the
Collateral.
4.13. INDEBTEDNESS
Not create, incur, assume, or suffer to exist any
indebtedness, except for (a) indebtedness under the Loan Documents; (b)
indebtedness incurred in the normal course of business and payable by its terms
within one (1) year after the incidence thereof; or (c) indebtedness to which
the Lender has consented in writing.
4.14. ENCUMBRANCES
Not create, incur, assume or suffer to exist any
Encumbrance (other than the Encumbrance created by this Agreement) upon any of
the Collateral, whether now owned or hereafter acquired, except for those
Encumbrances set forth in EXHIBIT C attached hereto.
4.15. FUNDAMENTAL CHANGES
Not amend its Articles of Incorporation by any amendment
which would adversely affect Borrower's ability to perform or comply with any
of the terms, conditions or agreements to be performed or complied with by
Borrower hereunder or to perform any of the transactions contemplated hereby,
consolidate or merge with any other limited liability company, corporation,
partnership, or other entity, or purchase, lease or otherwise acquire all or
substantially all of the assets of any other entity, except that Borrower may
own notes and other receivables acquired in the ordinary course of business.
4.16. TRANSFER OF COLLATERAL
Not sell, lease, assign, pledge or otherwise dispose of any
of the Collateral, whether now owned or hereafter acquired, except in the
ordinary course of business and for fair market value.
4.17. USE OF PROCEEDS
Not use, or allow the use of, the proceeds of the Revolving
Credit Loan for any purpose which would cause this Agreement to violate
Regulations U, T, or X of the Board of Governors of the Federal Reserve System
or for any purpose other than that specified in SECTION 1.4 hereof.
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5. SECURITY
5.1. COLLATERAL
As security (a) for the punctual payment of the principal
of the Note, together with the interest and premium, if any, thereon, including
all advances thereunder, and all modifications, renewals, extensions, and
re-amortizations thereof or any part thereof, however evidenced, (b) for the
punctual payment of all other sums and interest, if any, thereon, becoming due
or payable to Lender under the provisions hereof or of any other Loan Document,
and (c) the due performance and observance by Borrower of all of the covenants,
conditions and other provisions hereof and of the other Loan Documents (all of
the indebtedness and other obligations of Borrower described in this SECTION
5.1 being hereinafter referred to collectively as the "OBLIGATIONS"), Borrower
hereby grants to Lender a security interest in, and assigns and pledges to
Lender all of the following (collectively, the "COLLATERAL"): (i) all accounts
(as hereinafter defined) now owned or hereafter acquired by Borrower; (ii) all
equipment (as hereinafter defined) now owned or hereafter acquired by Borrower;
and (iii) all proceeds (as hereinafter defined) of the foregoing. For purposes
of this Agreement: "ACCOUNTS," "EQUIPMENT" and "PROCEEDS" have the meanings
ascribed to them in Article 9 of the Uniform Commercial Code as in effect in
the State of Georgia on the date hereof.
5.2. FINANCING STATEMENTS
At the request of Lender, Borrower will join with Lender in
executing financing statements, continuation statements, and other documents
with respect to the Collateral pursuant to the Uniform Commercial Code and
otherwise, in form satisfactory to Lender, and Borrower will pay the cost of
filing the same in all public offices wherever Lender deems filing to be
necessary or desirable. Borrower grants Lender the right, at Lender's option,
to file any or all such continuation statements and such other documents
pursuant to the Uniform Commercial Code and otherwise, without Borrower's
signature where legally permissible, and irrevocably appoints Lender as
Borrower's attorney-in-fact to execute any such statements and documents in
Borrower's name and to perform all other acts which Lender deems appropriate to
perfect and continue the security interests conferred by this Agreement.
5.3. NO RELEASE
No injury to, or loss or destruction of, any item of the
Collateral shall relieve Borrower of any obligation under this Agreement or
under any of the other Loan Documents.
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6. EVENTS OF DEFAULT AND REMEDIES
6.1. EVENTS OF DEFAULT
The occurrence of any one or more of the following events
shall constitute an Event of Default hereunder: (a) Borrower shall fail to pay,
when due, any sum payable under the Note, and such failure shall continue for
five (5) Business Days after the date on which Borrower receives written notice
of such failure; or (b) any representation or warranty made by or on behalf of
Borrower herein or in any other Loan Document shall prove to have been
incorrect or misleading or breached in any material respect on or as of any
date as of which made; or (c) Borrower shall at any time fail to observe,
satisfy or perform any of the covenants or agreements contained in SECTION 4 or
5 hereof and such failure shall continue unremedied for a period of five (5)
Business Days after written notice of the existence of such failure have been
received by Borrower from Lender; or (d) Borrower shall fail to observe or
perform any other term, covenant or agreement contained in this Agreement or in
any other Loan Document to be observed or performed on its part and such
failure shall continue unremedied for a period of five (5) Business Days after
written notice of the existence of such failure shall have been received by
Borrower from Lender; or (e) any event of default under any of the Loan
Documents shall occur; or (f) a decree or order for relief of Borrower shall be
entered by a court of competent jurisdiction in any involuntary case involving
Borrower under any bankruptcy, insolvency, or similar law now or hereafter in
effect, or a receiver, liquidator, or other similar agent for Borrower or for
any substantial part of Borrower's assets or property shall be appointed, or
the winding up or liquidation of Borrower's affairs shall be ordered; or (g)
Borrower shall commence a voluntary case under any bankruptcy, insolvency, or
similar law now or hereafter in effect, or Borrower shall consent to the entry
of an order for relief in an involuntary case under any such law or to the
appointment of or taking possession by a receiver, liquidator or other similar
agent for Borrower or for any substantial part of Borrower's assets or
property, or Borrower shall make any general assignment for the benefit of
creditors, or Borrower shall take any action preparatory to or otherwise in
furtherance of any of the foregoing, or Borrower shall fail generally to pay
its debts as such debts come due; or (h) one or more judgments or decrees shall
be entered against Borrower involving in the aggregate a liability (not paid or
fully covered by insurance) of $50,000 or more, and all such judgments or
decrees shall not have been vacated, discharged or stayed or bonded pending
appeal within sixty (60) days from the entry thereof.
6.2. RIGHTS AND REMEDIES OF LENDER
Upon the occurrence of any Event of Default, Lender may, at
its option, exercise any one or more of the following rights and remedies: (a)
declare the Commitment and Lender's obligation to make the Loans to be
terminated, and declare the entire unpaid principal amount of the Note, all
interest accrued and
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unpaid thereon, and all other amounts payable under this Agreement and the
other Loan Documents to be accelerated, and to be immediately due and payable,
whereupon the Note, all such accrued interest, and all such amounts shall
become and be immediately due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by
Borrower, anything contained herein or in any of the other Loan Documents to
the contrary notwithstanding; (b) notify all parties under the contracts and
accounts forming all or any part of the Collateral to make any payments due to
Borrower from such parties directly to Lender; (c) in Lender's own name, or in
the name of Borrower, demand, collect, receive, xxx for, and give receipts and
releases for, any and all amounts due under such contracts and accounts; (d)
endorse as the agent of Borrower any chattel paper, documents, or instruments
forming all or any part of the Collateral; (e) take any other action which
Lender deems necessary or desirable to protect and realize upon its security
interest in the Collateral; and (f) in addition to the foregoing, and not in
substitution therefor, exercise any one or more of the rights and remedies
exercisable by Lender under other provisions of this Agreement, under the Note,
under any of the other Loan Documents, or provided by applicable law
(including, without limitation, the Uniform Commercial Code as in effect in the
State of Georgia).
6.3. APPLICATION OF PROCEEDS
Any proceeds from the collection or sale or other
disposition of the Collateral shall be applied in the following order of
priority: First, to the payment of all expenses of collecting, storing,
leasing, operating, managing, selling, or disposing of the Collateral, and to
the payment of all sums which Lender may be required or elect to pay, if any,
for taxes, assessments, insurance, and other charges upon such Collateral or
any part thereof, and of all other payments which Lender may be required or
authorized to make under any provision of this Agreement or of any other Loan
Document (including in each such case reasonable legal costs and attorneys'
fees and expenses); Second, to the payment of all Obligations; and Third, to
the payment of any surplus then remaining to Borrower, unless otherwise
provided by law or directed by a court of competent jurisdiction; provided that
Borrower shall be liable for any deficiency if the proceeds are insufficient to
satisfy all of the Obligations.
7. MISCELLANEOUS PROVISIONS
7.1. ADDITIONAL ACTIONS AND DOCUMENTS
Borrower shall take or cause to be taken such further
actions, shall execute, deliver, and file or cause to be executed, delivered,
and filed such further documents and instruments, and shall obtain such
consents as may be necessary or as Lender may reasonably request in order fully
to effectuate the purposes, terms, and conditions of this Agreement and the
other Loan Documents, whether before, at
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or after the closing of transactions contemplated hereby and thereby or the
occurrence of an Event of Default hereunder.
7.2. EXPENSES
Borrower shall pay all expenses of Lender incident to this
Agreement, including legal and accounting fees and disbursements.
7.3. NOTICES
All notices, demands, requests, or other communications
provided for herein or in the other Loan Documents shall be in writing and
shall be hand delivered, mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, delivered by overnight air courier,
or transmitted by telegram, telex, or facsimile transmission, addressed as
follows:
(a) If to Borrower:
XxxxXxxxxx.XXX, Inc.
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Facsimile No.: (000) 000-0000
E-mail: xxxxxxx@XxxxXxxxxx.XXX
(b) If to Lender:
ITC Service Company
0000 X.X. Xxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
E-mail: xxxxxx@xxxxxxx.xxx
with a copy (which shall not constitute notice) to:
Xxxxxxxxx X. Xxxxxxxx
Vice President, General Counsel and Secretary
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: 703/619-9720
E-mail: xxxxxxxxx@xxxxxxx.xxx
or such other address as the addressee may indicate by written notice to the
other parties.
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Each notice, demand, request or communication which shall
be given or made in the manner described above shall be deemed sufficiently
given or made for all purposes at such time as it is delivered to the addressee
(with the return receipt, the delivery receipt, the affidavit of messenger or
(with respect to a facsimile) the confirmation being deemed conclusive but not
exclusive evidence of such delivery) or at such time as delivery is refused by
the addressee upon presentation.
7.4. SEVERABILITY
If any part of any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this
Agreement shall be invalid or unenforceable under applicable law, such part
shall be ineffective to the extent of such invalidity or unenforceability only,
without in any way affecting the remaining parts of such provisions or the
remaining provisions of said agreement.
7.5. SURVIVAL
It is the express intention and agreement of the parties
hereto that all covenants, agreements, statements, representations, warranties,
and indemnities made by Borrower in the Loan Documents shall survive the
execution and delivery of the Loan Documents and the making of all advances and
extensions of credit thereunder.
7.6. WAIVER
No delay or failure on the part of any party hereto in
exercising any right, power or privilege under this Agreement or under any
other instrument or document given in connection with or pursuant to this
Agreement shall impair any such right, power or privilege or be construed as a
waiver of any default or any acquiescence therein. No single or partial
exercise of any such right, power or privilege shall preclude the further
exercise of such right, power or privilege, or the exercise of any other right,
power or privilege. No waiver shall be valid against any party hereto unless
made in writing and signed by the party against whom enforcement of such waiver
is sought and then only to the extent expressly specified therein.
7.7. RIGHTS CUMULATIVE
Except as specifically provided herein, the remedies
provided herein shall be cumulative and shall not preclude the assertion by
Borrower or by Lender of any other rights or the seeking of any other remedies
against the other, or its successors or assigns. Nothing contained herein shall
preclude a party from seeking equitable relief, where appropriate.
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7.8. ENTIRE AGREEMENT; MODIFICATION
This Agreement, the exhibits hereto, and the other Loan
Documents constitute the entire agreement of the parties hereto with respect to
the matters contemplated herein, supersede all prior oral and written
agreements with respect to the matters contemplated herein, and may not be
modified, deleted or amended except by written instrument executed by the
parties. All terms of this Agreement and of the other Loan Documents shall be
binding upon, and shall inure to the benefit of and be enforceable by, the
parties hereto and their respective successors and assigns.
7.9. TERMINATION
This Agreement shall terminate upon payment in full of all
amounts payable and performance of all other obligations owed by Borrower to
Lender under this Agreement and under the other Loan Documents.
7.10. GOVERNING LAW
This Agreement and the other Loan Documents, the rights and
obligations of the parties hereto, and any claims or disputes relating thereto
shall be governed by and construed in accordance with the laws of the State of
Georgia (excluding the choice of law rules thereof).
7.11. PRONOUNS
All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity
of the person or entity may require.
7.12. HEADINGS
Section and subsection headings contained in this
Agreement are inserted for convenience of reference only, shall not be deemed
to be a part of this Agreement for any purpose, and shall not in any way define
or affect the meaning, construction or scope of any of the provisions hereof.
7.13. PAYMENTS
If any payment or performance of the Note or of any of the
other obligations under this Agreement or any of the other Loan Documents
becomes due on a day other than a Business Day, the due date shall be extended
to the next succeeding Business Day, and interest thereon (if applicable) shall
be payable at the then applicable rate during such extension. For the purposes
of this Agreement, "BUSINESS DAY" means a day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia are authorized by law
to close.
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7.14. COUNTERPARTS
This Agreement and any of the other Loan Documents may be
executed in as many counterparts as may be required; and it shall not be
necessary that the signatures of, or on behalf of, each party, or the
signatures of all persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or the signatures of the persons required to bind any party, appear
on one or more of the counterparts. All counterparts shall collectively
constitute a single agreement. It shall not be necessary in making proof of
this Agreement or any other Loan Document to produce or account for any
particular number of counterparts; but rather any number of counterparts shall
be sufficient so long as those counterparts contain the respective signatures
of, or on behalf of, all of the parties hereto.
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement, or have caused this Agreement to be duly executed on their behalf,
as of the day and year first hereinabove set forth.
BORROWER:
XxxxXxxxxx.XXX, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CFO
LENDER:
ITC Service Company
By: /s/ J. Xxxxxxx Xxx
-------------------------------------
Name: J. Xxxxxxx Xxx
Title: Senior Vice President
ITC Holding Company, Inc.
By: /s/ J. Xxxxxxx Xxx
-------------------------------------
Name: J. Xxxxxxx Xxx
Title: Senior Vice President
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