FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of September 29,
1995 (the "Fourth Amendment") is among SOUND ADVICE, INC., a Florida corporation
(the "Borrower"), SAI DISTRIBUTORS, INC., a Florida corporation (the
"Guarantor") and NATIONSBANK OF FLORIDA, N.A., a national banking association
(the "Lender" or "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantor and the Lender previously entered
into an "Amended and Restated Credit Agreement", dated as of February 4, 1993,
as amended by the "First Amendment to Credit Agreement" dated as of February 26,
1993 ("First Amendment"), as amended by the "Second Amendment to Credit
Agreement" dated as of December 28, 1993 ("Second Amendment "), as amended by
the Third Amendment to Credit Agreement dated as of March 29, 1995 ("Third
Amendment") (collectively, the "Credit Agreement"), pursuant to which the Lender
has extended to Borrower a commitment to make revolving credit loans and to
issue letters of credit and make a $3,600,000.00 term loan in favor of the
Borrower (the "Commitment"); and
WHEREAS, the Commitment is evidenced by an Amended and Restated Renewal
Revolving Credit Promissory Note in the principal amount of THIRTY MILLION
DOLLARS ($30,000,000.00), dated March 29, 1995 and a Term Note dated February
26, 1993 in the original principal amount of Three Million Six Hundred Thousand
Dollars ($3,600,000.00) ("Term Note"), which Term Note is a part of the
Commitment; and
WHEREAS, in order to secure its obligations and indebtedness under the
Note and the Credit Agreement, the Borrower executed and delivered to Lender an
Amended and Restated Security Agreement, dated as of February 4, 1993 (the
"Security Agreement") granting to Lender a first, perfected security interest in
the Collateral (as defined in the Security Agreement); and
WHEREAS, in order to induce Lender to make the Commitment available to
the Borrower, the Guarantor executed and delivered to Lender a Continuing and
Unconditional Guaranty, dated as of February 4, 1993 which has been confirmed by
the Guarantor from time to time (the "Guaranty") (the Credit Agreement, the
Security Agreement and the Guaranty are hereinafter referred to as the "Loan
Documents"); and
WHEREAS, the Borrower and the Guarantor have requested that the Lender
extend the Note and the Credit Agreement; and
WHEREAS, the Lender is willing to do so on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. RECITALS. The foregoing recitals are true and correct and
are incorporated as part of this Agreement.
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2. DEFINITIONS. All capitalized terms used herein shall, except
as modified hereby, have the meanings ascribed to them in the Credit Agreement.
3. RENEWAL PROMISSORY NOTE.
Even date herewith, Borrower shall execute the Amended and
Restated Renewal Revolving Credit Promissory Note in the amount of THIRTY
MILLION DOLLARS ($30,000,000.00) in the form attached hereto as EXHIBIT A
("Renewal Revolving Note"), which Renewal Revolving Note and any modifications,
renewals, replacements and substitutions therefor made from time to time
hereafter shall constitute the "Revolving Credit Note" contemplated in the
Credit Agreement.
4. TERMINATION DATE. The "Termination Date" shall mean October
13, 1995, time being of the essence. Borrower acknowledges that Lender shall
have no obligation to extend the Termination Date. As of the Termination Date,
all Obligations of the Borrower to the Lender shall be due and payable and all
available credit from Lender to Borrower including, without limitation, the
Commitment and any letter(s) of credit shall be terminated. Notwithstanding
anything in this Fourth Amendment, the Renewal Revolving Note or any of the Loan
Documents to the contrary, in the event the Borrower and Lender do not enter
into a commitment letter with respect to the Loan Documents upon terms and
conditions acceptable to both the Lender and the Borrower (as determined in
their sole and absolute discretion) on or prior to 2:00 p.m. October 3, 1995
(time being of the essence), then Lender shall have the right to accelerate the
Termination Date to October 3, 1995. Nothing herein shall be deemed to
constitute an offer by the Lender to grant a commitment or an agreement by the
Lender to negotiate a commitment with the Borrower in good faith. The Borrower
acknowledges and agrees that there has been no warranty or representation made
by the Lender to grant a commitment.
5. USE OF LOAN. Section 4.12(iv) of the Credit Agreement is,
effective as of January 1, 1995, intentionally left blank.
6. CAPITAL EXPENDITURE. The maximum capital expenditure during
any fiscal year, as contemplated by Section 6.8 of the Credit Agreement, is,
effective as of January 1, 1995, until June 30, 1995, amended from FOUR MILLION
DOLLARS ($4,000,000.00) to FIVE MILLION TWO HUNDRED THOUSAND DOLLARS
($5,200,000.00). As of July 1, 1995, the maximum capital expenditure shall
revert to FOUR MILLION DOLLARS ($4,000,000.00) from FIVE MILLION TWO HUNDRED
THOUSAND DOLLARS ($5,200,000.00).
7. ADDITIONAL REPORTING REQUIREMENTS. In addition to any other
financial reporting currently required to be provided by the Borrower to the
Lender, the Borrower shall also provide the following to Lender:
(i) Copy of Borrower's monthly inventory, reconciliation
reports on a form satisfactory to Lender on or prior to the thirtieth (30th)
day of each month for the preceding month; and
(ii) Borrowing base certificates based upon Borrower's
closed month end general ledger balance on or prior to thirty (30) days
following the applicable month end.
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8. RELEASE. AS A MATERIAL INDUCEMENT FOR LENDER TO EXECUTE THIS
AGREEMENT, BORROWER AND GUARANTOR DO HEREBY RELEASE, WAIVE, DISCHARGE, COVENANT
NOT TO XXX, ACQUIT, SATISFY AND FOREVER DISCHARGE LENDER ITS OFFICERS,
DIRECTORS, EMPLOYEES, AND AGENTS AND ITS AFFILIATES AND ASSIGNS FROM ANY AND ALL
LIABILITY, CLAIMS, COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS,
CONTROVERSIES, AGREEMENTS, PROMISES AND DEMANDS WHATSOEVER IN LAW OR IN EQUITY
WHICH BORROWER OR GUARANTOR EVER HAD, NOW HAVE, OR WHICH ANY PERSONAL
REPRESENTATIVE, SUCCESSOR, HEIR OR ASSIGN OF BORROWER OR GUARANTOR HEREAFTER
CAN, SHALL OR MAY HAVE AGAINST LENDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND
AGENTS, AND ITS AFFILIATES AND ASSIGNS, FOR, UPON, OR BY REASON OF ANY MATTER,
CAUSE OR THING WHATSOEVER THROUGH THE DATE HEREOF. BORROWER AND GUARANTOR
FURTHER EXPRESSLY AGREE THAT THE FOREGOING RELEASE AND WAIVER AGREEMENT IS
INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY THE LAWS OF THE STATE OF
FLORIDA. IN ADDITION TO, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
AND IN CONSIDERATION OF LENDER'S EXECUTION OF THIS AGREEMENT, BORROWER AND
GUARANTOR COVENANT WITH AND WARRANT UNTO LENDER, AND ITS AFFILIATES AND ASSIGNS,
THAT THERE EXIST NO CLAIMS, COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR
CLAIMS OF OFFSETS AGAINST LENDER OR THE OBLIGATION OF BORROWER AND GUARANTOR TO
PAY THE LOAN TO LENDER WHEN AND AS THE SAME BECOMES DUE AND PAYABLE.
9. RATIFICATION OF SECURITY AGREEMENT.
(a) The Borrower, by execution of this Fourth
Amendment: (i) acknowledges the continued effectiveness of the Security
Agreement securing all Obligations (as defined in the Security Agreement) of the
Borrower to the Lender, including the Renewal Revolving Note and the Term Note;
and (ii) ratifies and confirms the Security Agreement. The term "Obligations" is
hereby amended to include the indebtedness and obligations of the Borrower to
the Lender evidenced by the Renewal Revolving Note and the Term Note.
(b) The Borrower represents and warrants that: (i) each
of the representations and warranties of the Borrower contained in the Security
Agreement is true and correct as of the date hereof; (ii) the Borrower is in
full compliance with each of the covenants of the Borrower set forth in the
Security Agreement; and (iii) no Event of Default (as defined in the Security
Agreement) or event which, with the lapse of time, the giving of notice, or
both, would become an Event of Default has occurred and is continuing under the
Security Agreement.
10. REPRESENTATIONS AND WARRANTIES; NO DEFAULT. The Borrower
represents and warrants that: (a) each of the representations and warranties of
the Borrower contained in Article 4 of the Credit Agreement is true and correct
as of the date hereof; provided, however, Borrower hereby discloses the
existence of the following Subsidiaries: (i) SAI Realty Investments, Inc., a
Florida corporation; (ii) Sound Advice of Virginia, Inc., a Virginia
corporation; and (iii) Sound Advice Electronics of Maryland, Inc., a Maryland
corporation; (b) no Default or Event of Default has occurred and is continuing
under the Credit Agreement; and (c) Borrower has no defenses, offsets or
counterclaims to any of its obligations or indebtedness under the Credit
Agreement or this Fourth
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Amendment or any other document executed in connection with or pursuant to
the Credit Agreement or this Fourth Amendment.
11. RATIFICATION OF GUARANTY. The Guarantor, by execution of
this Fourth Amendment, consents to the execution and delivery by the Borrower of
this Fourth Amendment and all of the documents contemplated hereby and ratifies
and confirms the effectiveness and enforceability of the Guaranty. The term
Liabilities (as defined in the Guaranty) is hereby amended to include, without
limitation, the indebtedness and obligations of the Borrower to the Lender
evidenced by the Renewal Revolving Note and the Term Note. The Guarantor
represents and warrants that it has no counterclaims, defenses or offsets under
the Guaranty or under any other document executed in connection with or pursuant
to the Guaranty.
12. EXPENSES. The Borrower shall reimburse Lender for all
reasonable expenses and fees paid or incurred in connection with the
documentation, negotiation and closing of the transactions contemplated by this
Fourth Amendment and the documents required hereby, including, without
limitation, documentary stamp taxes and similar state and local taxes and fees,
filing and recording fees and the fees and expenses of Lender's counsel, whether
such fees and expenses are incurred prior to or after the date of execution
hereof.
13. NO FURTHER MODIFICATION. Except as hereinabove specifically
modified, all of the provisions of the Credit Agreement, the Security Agreement
and the Guaranty shall remain unaltered and in full force and effect. It is the
intent of the parties that this Fourth Amendment constitute a modification and
not a novation of the existing agreements between the parties. BORROWER
ACKNOWLEDGES AND AGREES THAT THE LENDER IS NOT OBLIGATED TO FURTHER MODIFY OR
EXTEND THE TERMINATION DATE.
14. ADDITIONAL PROVISIONS.
(a) This Fourth Amendment is non-transferrable and
non-assignable by the Borrower. No one other than the parties hereto shall be
entitled to rely on this Fourth Amendment.
(b) This Fourth Amendment may be executed
simultaneously in one or more counterparts, each of which shall be deemed an
original for evidentiary purposes and all of which together shall constitute one
and the same instrument.
(c) This Fourth Amendment shall be governed by and
construed in accordance with the internal laws of the State of Florida.
(d) This Fourth Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
assigns, heirs and personal representatives.
(e) This Fourth Amendment may not be amended except in
a writing signed by the party against whom enforcement is sought.
(f) Time is of the essence with respect to this Fourth
Amendment, the Loan Documents and all the documents contemplated in each of
them.
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(g) DEFAULT. An "Event of Default" under documents
evidencing and securing any existing or future loans between Borrower and
Guarantor and Bank shall constitute an Event of Default under the Credit
Agreement, and an Event of Default under the Credit Agreement shall constitute
an Event of Default under any such existing or future loan.
15. MANDATORY ARBITRATION. Any controversy or claim between or
among the parties hereto including, but not limited to, those arising out of or
relating to this Fourth Amendment or any related agreements or instruments,
including any claim based on or arising from an alleged tort, shall be
determined by binding arbitration in accordance with the Federal Arbitration Act
(or if not applicable, the applicable state law), the Rules of Practice and
Procedure for the Arbitration of Commercial Disputes of Judicial Arbitration and
Mediation Services, Inc. (J.A.M.S.), and the "Special Rules" set forth below. In
the event of any inconsistency, the Special Rules shall control. Judgment upon
any arbitration award may be entered in any court having jurisdiction. Any party
to this Fourth Amendment may bring an action, including a summary or expedited
proceeding, to compel arbitration of any controversy or claim to which this
Fourth Amendment applies in any court having jurisdiction over such action.
(a) SPECIAL RULES. The arbitration shall be conducted
in the city of Fort Lauderdale, Florida and administered by Endispute, Inc.,
d/b/a J.A.M.S./Endispute, who will appoint an arbitrator; if J.A.M.S./Endispute
is unable or legally precluded from administering the arbitration, then the
American Arbitration Association will serve. All arbitration hearings will be
commenced within ninety (90) days of the demand for arbitration; further, the
arbitrator shall only, upon a showing of cause, be permitted to extend the
commencement of such hearing for up to an additional sixty (60) days.
(b) RESERVATION OF RIGHTS. Nothing in this Fourth
Amendment shall be deemed to: (i) limit the applicability of any otherwise
applicable statutes of limitation or repose and any waivers contained in this
Fourth Amendment; or (ii) be a waiver by the Bank of the protection afforded to
it by 12 U.S.C. Sec. 91 or any substantially equivalent state law; or (iii)
limit the right of the Bank hereto (A) to exercise self help remedies such as
(but not limited to) setoff, or (B) to foreclose against any real or personal
property collateral, or (C) to obtain from a court provisional or ancillary
remedies such as (but not limited to) injunctive relief or the appointment of a
receiver. The Bank may exercise such self help rights, foreclose upon such
property, or obtain such provisional or ancillary remedies before, during or
after the pendency of any arbitration proceeding brought pursuant to this Fourth
Amendment. At Bank's option, foreclosure under a deed of trust or mortgage may
be accomplished by any of the following: the exercise of a power of sale under
the deed of trust or mortgage, or by judicial sale under the deed of trust or
mortgage, or by judicial foreclosure. Neither this exercise of self help
remedies nor the institution or maintenance of an action for foreclosure or
provisional or ancillary remedies shall constitute a waiver of the right of any
party, including the claimant in any such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies.
(c) WAIVER OF JURY TRIAL. BY AGREEING TO BINDING
ARBITRATION, THE PARTIES HERETO HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING, BUT NOT
LIMITED TO, THOSE ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS FOURTH
AMENDMENT AND ANY
5
OTHER DOCUMENT EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS BETWEEN OR
AMONG THE PARTIES HERETO. FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THE
AGREEMENT TO ARBITRATE, TO THE EXTENT ANY SUCH CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO IS NOT ARBITRATED, THE PARTIES HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF SUCH CONTROVERSY OR CLAIM. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR BANK'S EXTENDING THE LOAN EVIDENCED BY THE REVOLVING
CREDIT NOTE.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be dated for convenience as of the date and year first above
written.
SOUND ADVICE, INC., a Florida
corporation
By: /s/ G. XXX XXXXXXXX (SEAL)
Print Name: G. Xxx Xxxxxxxx
Title: Executive Vice President
CONSENTED AND AGREED TO:
SAI DISTRIBUTORS, INC., a Florida
corporation
By: /s/ G. XXX XXXXXXXX (SEAL)
Print Name: G. Xxx Xxxxxxxx
Title: Executive Vice President
NATIONSBANK OF FLORIDA, N.A.
By: /s/ XXXXXX X. XXXXX
Print Name: Xxxxxx X. Xxxxx
Title: Vice President
STATE OF GEORGIA )
) ss:
COUNTY OF Xxxxxx )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
G. Xxx Xxxxxxxx, the Exec VP of SOUND ADVICE, INC., a Florida corporation,
freely and voluntarily under authority duly vested in him/her by said
6
corporation and that the seal affixed thereto is the true corporate seal of
said corporation. He/She is personally known to me or who has produced driver's
license as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 29 day of September, 1995.
/s/ XXXXXX X. XXXXXXX
Notary Public
XXXXXX X. XXXXXXX
Typed, printed or stamped name of Notary Public
Notary Public, Xxxxxx County, Georgia
My Commission Expires: Oct. 21, 0000
XXXXX XX XXXXXXX )
) ss:
COUNTY OF Xxxxxx )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
G. Xxx Xxxxxxxx, the Exec VP of SAI DISTRIBUTORS, INC., a Florida corporation,
freely and voluntarily under authority duly vested in him/her by said
corporation and that the seal affixed thereto is the true corporate seal of
said corporation. He/She is personally known to me or who has produced drivers
license as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 29 day of September, 1995.
/s/ XXXXXX X. XXXXXXX
Notary Public
XXXXXX X. XXXXXXX
Typed, printed or stamped name of Notary Public
STATE OF GEORGIA )
) ss:
COUNTY OF Xxxxxx )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was
7
acknowledged before me by Xxxxxx X. Xxxxx, the Vice Pres of NATIONSBANK OF
FLORIDA, N.A., a national banking association, freely and voluntarily under
authority duly vested in him/her by said association. She is personally known to
me or who has produced _________________ as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this 29 day of September, 1995.
/s/ XXXXXX X. XXXXXXX
Notary Public
XXXXXX X. XXXXXXX
Typed, printed or stamped name of Notary Public
Notary Public, Xxxxxx County, Georgia
My Commission Expires Oct. 21, 1997
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EXHIBIT A
SOUND ADVICE, INC.
AMENDED AND RESTATED
RENEWAL REVOLVING CREDIT PROMISSORY NOTE
Amount: $30,000,000.00 Effective Date: September 29, 1995
FOR VALUE RECEIVED, the undersigned, SOUND ADVICE, INC., a Florida
corporation ("Maker" or "Borrower"), promises to pay to the order of NATIONSBANK
OF FLORIDA, N.A., successor by merger to NCNB National Bank of Florida ("Lender"
or "Bank"), at the offices of Lender in Fort Lauderdale, Florida, or at such
other place as the holder of this Note may from time to time designate, the
principal sum of THIRTY MILLION DOLLARS ($30,000,000.00) in lawful money of the
United States of America, or the aggregate unpaid principal amount of all
advances made by Lender to the undersigned under this Note, whichever is less,
and to pay interest on the principal amount of each advance remaining from time
to time outstanding from the date hereof until maturity, at the "Rate" (as
hereinafter defined) adjusted daily to reflect changes in such Rate, with each
adjustment to become effective on the date the change occurs. The "Rate" shall
be selected by the Borrower and shall constitute either the Lender's Prime Rate
or the Lender's unadjusted thirty (30) day floating certificate of deposit rate
plus 250 basis points. Unless otherwise designated, the Rate shall be the
Lender's Prime Rate. "Lender's Prime Rate" means, for the purposes hereof, that
index rate of interest per annum which Lender from time to time announces as its
prime rate. The Prime Rate is not necessarily the best or lowest rate charged or
offered by Lender to its borrowing customers.
Notwithstanding the foregoing, however, in no event shall the interest
rate applicable to principal outstanding under this Note exceed the maximum rate
of interest allowed by applicable law, as amended from time to time. If any
payment of interest or in the nature of interest thereunder would cause the
foregoing interest rate limitation to be exceeded, then such excess payment
shall be credited as a payment of principal unless the undersigned notifies
Lender in writing that the undersigned wishes to have such excess sum returned,
together with interest at the rate specified in Section 687.04(2), Florida
Statutes, or any successor statute.
Interest shall be computed on the basis of a year of 360 days and the
actual number of days elapsed. Payments made pursuant to the terms of this Note
shall first be credited to interest and lawful charges then accrued and the
remainder to principal.
Accrued interest, together with the outstanding principal balance
hereunder, shall be due and payable October 13, 1995, unless sooner due and
payable as set forth pursuant to the terms of that certain Amended and Restated
Credit Agreement, dated as of February 4, 1993 among Borrower, SAI Distributors,
Inc. and Lender, as amended by the First, Second, Third and Fourth Amendments
thereto (the "Agreement").
9
If any payment of principal under this Note is not paid when due
(whether on demand, by acceleration or otherwise), each amount shall bear
interest from such date at the highest lawful rate until paid, provided,
however, that such rate shall not exceed twenty-five percent (25%) per annum.
This Note is issued pursuant to, and is subject to, the provisions of
the Agreement. This Note is secured by collateral, as described more fully in
the Agreement and other security documents executed pursuant to the Agreement
(collectively, together with this Note and the Agreement, the "Loan Documents").
Reference is made to such Loan Documents for a description of the relative
rights and obligations of the undersigned and Lender, including rights and
obligations of prepayment, events of default, and rights of acceleration of
maturity in the event of default, which terms are incorporated herein.
This Note is a renewal of that certain Renewal Revolving Credit
Promissory Note from the undersigned to Lender in the amount of $30,000,000.00,
with an Effective Date of March 29, 1995. Accrued but unpaid interest on the
Note renewed hereby shall be paid on the first payment date hereunder.
The undersigned agrees to pay all costs of collection incurred in
enforcing this Note, including reasonable attorneys' fees, regardless of whether
suit or other proceedings are instituted, and if instituted, for all trial,
appellate, and other proceedings, if any.
All persons now or at any time liable for payment of this Note hereby
waive presentment, protest, notice of protest, and notice of dishonor. The
undersigned expressly consents to any extensions and renewals of this Note, in
whole or in part, and all delays in time of payment or other performance under
this Note which Lender may grant at any time from time to time, without
limitation and without any notice or further consent of the undersigned. All
notices, demands, and other communications required or permitted in connection
with this Note shall be given in the manner specified in the Agreement.
The remedies of Lender, as provided herein, or in any other agreement
between the undersigned and Lender are cumulative and concurrent (except as may
be provided in the Loan Documents) and may be pursued singularly, successively,
or together, and may be exercised as often as the occasion therefor shall arise.
This Note has been made, executed and delivered by the undersigned in
Atlanta, Georgia.
MANDATORY ARBITRATION. Any controversy or claim between or among the
parties hereto including, but not limited to, those arising out of or relating
to this Note or any related agreements or instruments, including any claim based
on or arising from an alleged tort, shall be determined by binding arbitration
in accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), the Rules of Practice and Procedure for the Arbitration
of Commercial Disputes of Judicial Arbitration and Mediation Services, Inc.
(J.A.M.S.), and the "Special Rules" set forth below. In the event of any
inconsistency, the Special Rules shall control. Judgment upon any arbitration
award may be entered in any court having jurisdiction. Any party to this Note
may bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim to which this Note applies in any court
having jurisdiction over such action.
10
a. SPECIAL RULES. The arbitration shall be conducted
in the city of Fort Lauderdale, Florida and administered by Endispute, Inc.,
d/b/a J.A.M.S./Endispute, who will appoint an arbitrator; if J.A.M.S./Endispute
is unable or legally precluded from administering the arbitration, then the
American Arbitration Association will serve. All arbitration hearings will be
commenced within ninety (90) days of the demand for arbitration; further, the
arbitrator shall only, upon a showing of cause, be permitted to extend the
commencement of such hearing for up to an additional sixty (60) days.
b. RESERVATION OF RIGHTS. Nothing in this Note shall
be deemed to: (i) limit the applicability of any otherwise applicable statutes
of limitation or repose and any waivers contained in this Note; or (ii) be a
waiver by the Bank of the protection afforded to it by 12 U.S.C. Sec. 91 or any
substantially equivalent state law; or (iii) limit the right of the Bank hereto
(A) to exercise self help remedies such as (but not limited to) setoff, or (B)
to foreclose against any real or personal property collateral, or (C) to obtain
from a court provisional or ancillary remedies such as (but not limited to)
injunctive relief or the appointment of a receiver. The Bank may exercise such
self help rights, foreclose upon such property, or obtain such provisional or
ancillary remedies before, during or after the pendency of any arbitration
proceeding brought pursuant to this Note. At Bank's option, foreclosure under a
deed of trust or mortgage may be accomplished by any of the following: the
exercise of a power of sale under the deed of trust or mortgage, or by judicial
sale under the deed of trust or mortgage, or by judicial foreclosure. Neither
this exercise of self help remedies nor the institution or maintenance of an
action for foreclosure or provisional or ancillary remedies shall constitute a
waiver of the right of any party, including the claimant in any such action, to
arbitrate the merits of the controversy or claim occasioning resort to such
remedies.
c. WAIVER OF JURY TRIAL. BY AGREEING TO BINDING
ARBITRATION, THE PARTIES HERETO HEREBY KNOWINGLY, IRREVOCABLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO INCLUDING, BUT NOT
LIMITED TO, THOSE ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE AND ANY
OTHER DOCUMENT EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS BETWEEN OR
AMONG THE PARTIES HERETO. FURTHERMORE, WITHOUT INTENDING IN ANY WAY TO LIMIT THE
AGREEMENT TO ARBITRATE, TO THE EXTENT ANY SUCH CONTROVERSY OR CLAIM BETWEEN OR
AMONG THE PARTIES HERETO IS NOT ARBITRATED, THE PARTIES HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF SUCH CONTROVERSY OR CLAIM. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR BANK'S EXTENDING THE LOAN EVIDENCED BY THE REVOLVING
CREDIT NOTE.
IN WITNESS WHEREOF, the undersigned has caused this Note to be executed
as of the day and year first above written.
Signed, Sealed and Delivered
in the Presence of: SOUND ADVICE, INC., a Florida corporation
11
________________________________ By: _______________________________(SEAL)
Name: _______________________________
________________________________ Title: _______________________________
STATE OF GEORGIA )
) SS:
COUNTY OF XXXXXX )
I HEREBY CERTIFY that on this day, before me, an officer duly
authorized in the State aforesaid and in the County aforesaid to take
acknowledgments, the foregoing instrument was acknowledged before me by
_______________________________, the ________ of SOUND ADVICE, INC., a Florida
corporation, freely and voluntarily under authority duly vested in him by said
corporation and that the seal affixed thereto is the true corporate seal of said
corporation. He is personally known to me or who has produced __________________
as identification.
WITNESS my hand and official seal in the County and State last
aforesaid this ___________ day of _________, 1995.
________________________________________________
Notary Public
________________________________________________
Typed, printed or stamped name of Notary Public
My Commission Expires:
12
