Exhibit 99.2
PROMISSORY NOTE
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$15,000,000.00 July 31, 2003
FOR VALUE RECEIVED, the undersigned, FIRST ADVANTAGE CORPORATION, doing
business in Florida as FIRST ADVANTAGE HOLDING, INC. (the "Borrower"), hereby
promises to pay to the order of BANK OF AMERICA, N.A. (the "Bank"), a national
banking association, whose address is 0000 Xxxxxxxxx Xxxx., Xxxxxxxx 000,
Xxxxxxxxxxxx, Xxxxxxx 00000, the principal sum of Fifteen Million and 00/100
Dollars ($15,000,000.00), together with interest on the outstanding principal
balance hereof at the rate provided herein. This Note shall be governed by the
following provisions:
1. Advances. The Borrower and the Bank have executed a Loan Agreement (as
amended or restated from time to time, the "Loan Agreement") of even date
herewith. The loan evidenced by this Note is a revolving loan, and the Borrower
may borrow, repay and reborrow principal amounts hereunder during the term
hereof subject to the terms contained herein and in the Loan Agreement.
Notwithstanding the foregoing, the outstanding principal balance hereof shall
not exceed $15,000,000.00 at any one time (or such lesser amount as may be set
forth in the Loan Agreement). This Note is the Note described in the Loan
Agreement.
2. Payments.
(a) The Borrower shall pay all accrued interest hereunder on the first
day of each calendar month during the term hereof commencing on July 1,
2003, and continuing on the first day of each calendar month thereafter.
(b) The Borrower shall pay all outstanding principal hereunder,
together with all then accrued and unpaid interest, on July 31, 2005 (the
"Maturity Date").
(c) This Note will be considered renewed if and only if the Bank has
sent to Borrower a written notice of renewal (the "Renewal Notice")
effective as of the Maturity Date. If this Note is renewed, it will
continue to be subject to all the terms and conditions set forth herein
except as modified by the Renewal Notice. If this Note is renewed, the term
"Maturity Date" shall mean the date set forth in the Renewal Notice as the
Maturity Date and all outstanding principal plus all accrued interest shall
be paid on the Maturity Date. The same process for renewal will apply to
any subsequent renewal of this Note. A renewal fee may be charged at the
Bank's option. The amount of the renewal fee will not exceed 0.10% of the
renewal amount.
3. Interest.
(a) Interest shall initially accrue on the outstanding principal
balance of this Note at the Adjusted Libor Rate (as defined herein) in
effect on the date of this Note. The rate of
interest shall be adjusted on each Interest Rate Adjustment Date (as
defined herein) so that interest shall accrue at the Adjusted Libor Rate
for the Interest Period (as defined herein) commencing on such Interest
Rate Adjustment Date. For purposes of this paragraph, the following terms
shall have the following meanings:
(i) "Adjusted Libor Rate" for each Interest Period shall mean a
rate that is equal to the applicable Libor Rate plus the Applicable
Margin (as defined herein). The Libor Rate for each Interest Period
shall mean the offered rate for deposits in United States dollars in
the London Interbank market for a one month period which appears on the
Libor Rate Reference Page (as defined herein) as of 11:00 a.m. (London
time) on the day that is two London Banking Days (as defined herein)
preceding the first calendar day of the Interest Period (as such rate
may be adjusted from time to time in the Bank's sole discretion for
reserve requirements, deposit insurance assessment rates and other
regulatory costs). If at least two such offered rates appear on the
Libor Rate Reference Page, the rate will be the arithmetic mean of such
offered rates.
(ii) The "Applicable Margin" is the percentage per annum set forth
below based on Borrowers' Funded Debt Ratio as defined in Section 4.11
of the Loan Agreement.
Applicable Margin
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Funded Debt Ratio Applicable Margin
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Less than or equal to 1.5 to 1 1.25% per annum
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Greater than 1.50 to 1 but
equal to or less than 2.50 to 1 1.39% per annum
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Greater than 2.50 to 1 Default Rate (as defined
herein)
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The Applicable Margin will be established based upon the Borrower's
most recent quarterly compliance certificate received by the Bank, as
required in the Loan Agreement. The Applicable Margin will be in effect
from the first day of the calendar month following receipt of that
compliance certificate until the first day of the calendar month
following receipt of the next quarterly compliance certificate. Until
the first compliance certificate is due pursuant to the Loan Agreement,
the Applicable Margin will be 1.39% per annum. Thereafter, if any
compliance certificate is not delivered when required under the Loan
Agreement, the Applicable Margin from the date such certificate was due
until the date that the Bank receives the same will be 2.50% per annum.
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(iii) "Banking Business Day" shall mean each day other than a
Saturday, a Sunday or any holiday on which commercial banks in
Jacksonville, Florida are closed for business.
(iv) "Interest Period" shall mean: (aa) an initial period
commencing on the date hereof and continuing through the day
immediately preceding the first Interest Rate Adjustment Date; and (bb)
each period thereafter commencing on each Interest Rate Adjustment Date
and continuing through the day immediately preceding the next Interest
Rate Adjustment Date.
(v) "Interest Rate Adjustment Date" shall mean the first Banking
Business Day of July, 2003, and the first Banking Business Day of each
calendar month thereafter.
(v) "Libor Rate Reference Page" shall mean any of the following
reference pages or sources (as selected from time to time by the Bank
in its discretion): (aa) the Dow Xxxxx Telerate Page 3750; (bb) the
Reuters Screen LIBO Page; or (cc) such other index or source as the
Bank may in its sole discretion select showing rates offered for United
States dollar deposits in the London Interbank market.
(vi) "London Banking Day" shall mean each day other than a
Saturday, a Sunday or any holiday on which commercial banks in London,
England are closed for business.
(b) Interest shall be calculated on the basis of a 360 day year (based
upon the actual number of days elapsed) (or, at the Bank's option, on the
basis of a 360-day year consisting of twelve 30-day months).
(c) The total liability of the Borrower and any endorsers or guarantors
hereof for payment of interest shall not exceed any limitations imposed on
the payment of interest by applicable usury laws. If any interest is
received or charged by any holder hereof in excess of that amount, the
Borrower shall be entitled to an immediate refund of the excess.
(d) Notwithstanding any contrary provision set forth herein, any
principal of, and to the extent permitted by applicable law, any interest
on this Note, and any other sum payable hereunder, that is not paid when
due shall bear interest, from the date due and payable until paid, payable
on demand, at a rate per annum (the "Default Rate") equal to the lesser of:
(i) the rate per annum otherwise payable under Section 3(a) hereof, as
applicable, plus four percent (4%) per annum; or (ii) the highest rate
permitted by law.
4. Prepayment. The Borrower shall be entitled to prepay this Note in whole
or in part at any time without penalty.
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5. Application of Payments. All payments hereunder shall be applied first
to the Bank's costs and expenses, then to fees authorized hereunder or under the
Loan Agreement, then to interest and then to principal.
6. Default. An Event of Default shall be deemed to have occurred hereunder
upon the occurrence of an Event of Default under the Loan Agreement. If any
Event of Default or any Default (as defined in the Loan Agreement) shall occur,
any obligation of the Bank to make advances hereunder shall be terminated
without notice to the Borrower. In addition, if any Event of Default shall
occur, the Bank may declare, in the manner set forth in the Loan Agreement, the
outstanding principal of this Note, all accrued and unpaid interest hereunder
and all other amounts payable under this Note to be forthwith due and payable.
Thereupon, the outstanding principal of this Note, all such interest and all
such amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower. Upon the occurrence of any Event of Default, the
outstanding principal of this Note, and any accrued and unpaid interest, shall
bear interest at the Default Rate.
7. Expenses. All parties liable for the payment of this Note agree to pay
the Bank all costs incurred by it in connection with the collection of this
Note. Such costs include, without limitation, fees for the services of counsel
and legal assistants employed to collect this Note, whether or not suit be
brought, and whether incurred in connection with collection, trial, appeal or
otherwise. All such parties further agree to indemnify and hold the Bank
harmless against liability for the payment of state documentary stamp taxes,
intangible personal property taxes or other taxes (including interest and
penalties, if any) excluding income or service taxes of the Bank, which may be
determined to be payable with respect to this transaction.
8. Late Charge. If any scheduled payment hereunder is 15 or more days late,
the Borrower shall pay a fee equal to 4% of the unpaid portion of the scheduled
payment. The fee is not a penalty, but liquidated damages to defray
administrative and related expenses due to such late payment. The fee shall be
immediately due and payable and shall be paid by the Borrowers to the Bank
without notice or demand. This provision for a fee is not and shall not be
deemed a grace period, and Bank has no obligation to accept a late payment.
Further, the acceptance of a late payment shall not constitute a waiver of any
default then existing or thereafter arising under this Note.
9. Setoffs. The Borrower and any endorsers, sureties, guarantors, and all
others who are, or who may become liable for the payment hereof, other than The
First American Corporation and its affiliates (excluding the Borrower and its
subsidiaries) severally expressly grant to the Bank a continuing first lien
security interest in any and all money, general or specific deposits, or
property of any such parties now or hereafter in the possession of the Bank. The
Borrower and such other parties authorize and empower the Bank, in its sole
discretion, at any time after the occurrence of a default hereunder to
appropriate and, in such order as the Bank may elect, apply any such money,
deposits or property to the payment hereof.
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10. Auto Debit. The Borrower hereby authorizes the Bank to automatically
deduct the amount of any payment due hereunder from any of the Borrower's
accounts now or hereafter maintained with the Bank (including, without
limitation, account number 005487624677). If the funds in such account are
insufficient to cover any payment, the Bank shall not be obligated to advance
funds to cover the payment. At any time and for any reason, the Borrower or the
Bank may voluntarily terminate automatic payments hereunder.
11. Miscellaneous. The Borrower and all sureties, endorsers and guarantors
of this Note shall make all payments hereunder in lawful money of the United
States at the Bank's address set forth herein or at such other place as the Bank
may designate in writing. The remedies of the Bank as provided herein shall be
cumulative and concurrent, and may be pursued singly, successively or together,
at the sole discretion of the Bank and may be exercised as often as occasion
therefor shall arise. No act of omission or commission of the Bank, including
specifically any failure to exercise any right, remedy or recourse, shall be
effective, unless set forth in a written document executed by the Bank, and then
only to the extent specifically recited therein. A waiver or release with
reference to one event shall not be construed as continuing, as a bar to, or as
a waiver or release of any subsequent right, remedy or recourse as to any
subsequent event. This Note shall be construed and enforced in accordance with
Florida law and shall be binding on the successors and assigns of the parties
hereto. The term "Bank" as used herein shall mean any holder of this Note. If
more than one person or entity executes this Note, such persons and entities
shall be jointly and severally liable hereunder. The Bank may, at its option,
round any or all fractional interest rates under paragraph 3 upwards to the next
higher 1/100 of 1%. The Borrower and all sureties, endorsers and guarantors of
this Note hereby: (a) waive demand, notice of demand, presentment for payment,
notice of nonpayment or dishonor, protest, notice of protest and all other
notice, filing of suit and diligence in collecting this Note, or in the Bank's
enforcing any of its rights under any guaranties securing the repayment hereof;
(b) agree to any substitution, addition or release of any collateral or any
party or person primarily or secondarily liable hereon; (c) agree that the Bank
shall not be required first to institute any suit, or to exhaust his, their or
its remedies against the Borrower or any other person or party to become liable
hereunder, or against any collateral in order to enforce payment of this Note;
(d) consent to any extension, rearrangement, renewal or postponement of time of
payment of this Note and to any other indulgency with respect hereto without
notice, consent or consideration to any of them; and (e) agree that,
notwithstanding the occurrence of any of the foregoing (except with the express
written release by the Bank of any such person), they shall be and remain
jointly and severally, directly and primarily, liable for all sums due under
this Note.
12. Arbitration. The Borrower, and the Bank by its acceptance hereof, agree
to the following arbitration provisions:
(a) These arbitration provisions govern the resolution of any
controversies or claims between the Borrower and the Bank, whether arising
in contract, tort or by statute, including but not limited to controversies
or claims (collectively, a "Claim") that arise out of or relate to: (i)
this Note (including any renewals, restatements, extensions or
modifications hereof); or (ii) any document related to this Note.
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(b) At the request of the Borrower or the Bank, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration
Act (Title 9, U. S. Code) (the "Arbitration Act"). The Arbitration Act will
apply even though this Note provides that it is governed by the law of a
specified state. Arbitration proceedings will be determined in accordance
with the Arbitration Act, the rules and procedures for the arbitration of
financial services disputes of JAMS or any successor thereof ("JAMS"), and
the terms of this Section. In the event of any inconsistency, the terms of
this Section shall control. The arbitration shall be administered by JAMS
and conducted in Hillsborough County, Florida. All Claims shall be
determined by one arbitrator. However, if Claims exceed $1,000,000, upon
the request of any party, the Claims shall be decided by three arbitrators.
All arbitration hearings shall commence within 90 days of the demand for
arbitration and close within 90 days of commencement and the award of the
arbitrator or arbitrators, as the case may be, shall be issued within 30
days of the close of the hearing. However, the arbitrator or arbitrators,
as the case may be, upon a showing of good cause, may extend the
commencement of the hearing for up to an additional 60 days. The arbitrator
or arbitrators, as the case may be, shall provide a concise written
statement of reasons for the award. The arbitration award may be submitted
to any court having jurisdiction to be confirmed and enforced.
(c) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on JAMS under applicable JAMS rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this Note.
(d) These arbitration provisions do not limit the right of the Borrower
or the Bank to: (i) exercise self-help remedies, such as but not limited
to, setoff; (ii) initiate judicial or nonjudicial foreclosure against any
real or personal property collateral; (iii) exercise any judicial or power
of sale rights, or (iv) act in a court of law to obtain an interim remedy,
such as but not limited to, injunctive relief, writ of possession or
appointment of a receiver, or additional or supplementary remedies.
(e) By agreeing to binding arbitration, the Borrower and the Bank
irrevocably and voluntarily waive any right they may have to a trial by
jury in respect of any Claim. Furthermore, without intending in any way to
limit this agreement to arbitrate, to the extent any Claim is not
arbitrated, the parties irrevocably and voluntarily waive any right they
may have to a trial by jury in respect of such Claim. This provision is a
material inducement for the Borrower's executing, and the Bank's accepting,
this Note. No provision in this Note or in any document related hereto
regarding submission to jurisdiction or venue in any court is intended or
shall be construed to be in derogation of the provisions of this Note or in
any such other document for arbitration of any controversy or claim.
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13. Assignment. The Bank may sell or offer to sell this Note, together with
any and all documents guaranteeing, securing or executed in connection with this
Note, to one or more assignees without notice to or consent of the Borrower. The
Bank is hereby authorized to share any information it has pertaining to the loan
evidenced by this Note, including without limitation credit information on the
undersigned, any of its principals, or any guarantors of this Note, to any such
assignee or prospective assignee.
14. NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
FIRST ADVANTAGE CORPORATION, a Delaware
corporation doing business in Florida as
FIRST ADVANTAGE HOLDING, INC.
By: /s/ Xxxx Xxxxxx
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Its: EVP and CFO
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(SEAL)
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