EXHIBIT (b)(2)
LINE OF CREDIT AGREEMENT
AGREEMENT made effective the 1st day of May, 2000, between St. Xxxxx Asset
Investment. Inc. ("Lender"), 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000
and Jacksonville Restaurant Acquisition Corp. ("Borrower"), 0000 Xxxxxxxx Xxx
Xxxxx, Xxxxxxxxxxxx, XX 00000.
RECITALS
I. Borrower is in the business of acquiring controlling interests in
restaurant franchisors and developing restaurant franchises.
II. Borrower has to date borrowed funds from Lender for working capital
and to acquire minority interests in publicly held corporations.
III. Borrower desires to borrow funds for working capital and to finance
the acquisition of controlling interests in restaurant franchisors.
IV. Borrower has made no acquisitions and done no business prior to the
date of this Agreement except to negotiate possible acquisitions and to acquire
minority interests in publicly held corporations.
V. Leader is willing, and has the financial resources, to lend Borrower
sufficient funds for working capital and acquisitions.
TERMS AND CONDITIONS
1. Definitions.
1.1. "Lender" means St. Xxxxx Asset Investment, Inc.
1.2. "Borrower" means Jacksonville Restaurant Acquisition Corp.
1.3. "Interest Rate" means one percentage point below the prime rate
of increase charged by Xxxxx Fargo Bank to its preferred customers, as of the
day prior to any day or date on which the rate of interest charged in this
Agreement is to be changed or otherwise computed.
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1.4. "Loan" means one or more loan advances made by Lender to Borrower
pursuant to this Agreement, including the "Prior Advance" as hereinafter
defined.
1.5. "Note" means the Promissory Note to be issued by Lender to
Borrower pursuant to this Agreement.
2. Establishment of Line of Credit.
2.1. Borrower agrees to the establishment of a corporate line of
credit ("LOC") in Borrower's name with Lender, to be secured by all assets of
Borrower and all shares of stock in Borrower pursuant to separate Stock Pledge
Agreements, under which loan, advances may from time to time be extended to
Borrower on the terms and conditions set forth herein.
2.2. The maximum credit limit shall be Forty Million ($40,000,000.00)
Dollars.
3. The Loan.
3.1. Loan Advances. Loan advances within the maximum credit limit for
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the LOC shall be made by Lender by check or wire transfer to Borrower's
designated depository or other payee for the amount of any loan advance
requested by Borrower under the LOC. Borrower agrees that Lender is not
obligated to make advances that will increase the amounts owing under the LOC
above the maximum credit limit, or to make any further advances, regardless of
the amounts owing under the LOC, at any time when there has been a default
hereunder that has not been cured to the satisfaction of Lender.
3.2. Prior Advance. As of the effective date of this Agreement, Lender
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has previously advanced to Borrower the sum of Five Hundred Fifty Thousand
($550,000.00) Dollars ("Prior Advance").
3.3. Note. Upon execution of this Agreement, Borrower will execute
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and deliver a Note to Lender in a form approved by Lender.
3.4. Term. The term of the loan will be fifteen (15) years commencing
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May 1, 2000 and terminating April 30, 2015.
3.5. Interest on Prior Advance. Interest on the Prior Advance will
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accrue from May 1, 2000.
3.6. Interest on Loan Advances. Interest on Loan Advances, other than
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the Prior Advance, shall accrue from the date each advance is made by Lender.
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3.7. Initial Forbearance Term. No payments of principal or interest
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shall be due during the first two years of the term; however, interest on
advances shall accrue during said two-year period.
3.8. Interest Rate. Commencing May 1, 2002, the Interest Rate shall
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be adjusted annually on May 1 for the installments due commencing the following
June 1. The Interest Rate used shall be determined as of close of business on
April 30 of said year, or if the last business day be earlier than April 30,
then on said last business day. Interest shall be calculated on the basis of a
360-day year, counting the actual number of days elapsed.
3.9. Principal and Interest Payments. Commencing May 1, 2002, the
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principal of the loan shall be repaid in one hundred fifty-six (156) consecutive
monthly installments payable on the first day of each month. The amount of each
principal installment shall be the amount of principal outstanding as of the
date of payment, multiplied by a fraction, the numerator of which is one and the
denominator of which is the number of months remaining in the term, including
the month in which the payment is due. In addition to the aforesaid principal
payment, each monthly payment shall include interest computed on the average
daily principal balance outstanding in the month prior to the payment due date
at the Interest Rate then in effect, taking into account all advances received
and payments made during said prior month.
3.10. Prepayment. Borrower, without penalty or premium, may prepay the
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principal of the loan, in whole or in part, at any time and from time to time,
in multiples of Ten Thousand ($10,000.00) Dollars. All such partial prepayments
shall be applied against the installments of principal required herein in the
inverse order of maturity.
3.11. Payment to Lender. All sums payable to Lender shall be paid
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directly to Lender in immediately available funds. Lender shall send Borrower
monthly statements of all amounts due, which statements shall be considered
correct and conclusively binding on Borrower unless Borrower notifies Lender to
the contrary within sixty (60) days of its receipt of any statement that it
deems to be incorrect.
4. Condition Precedent.
The obligation of Lender to make the loan is subject to the condition
precedent that Borrower shall have delivered to Lender prior to disbursement of
the first loan advance (the "Closing") the following:
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4.1. The Note;
4.2. A Pledge Agreement, in the form annexed, executed by Borrower,
together with certificates representing the shares pledged, endorsed in blank;
4.3. Pledge Agreements, in the form annexed, executed by each of
Borrower's shareholders, together with certificates representing the shares
pledged, endorsed in blank;
4.4. The Financing Statements (Form UCC-1) required by Section 5;
4.5. A certified, as of the date of Closing, copy of resolutions of
Borrower's Board of Directors authorizing the execution, delivery, and
performance of this Agreement, the Note, the collateral documents, and each
other document to be delivered pursuant hereto;
4.6. A certificate of good standing of the Borrower from the Secretary
of State of Delaware.
5. Collateral Security.
5.1. The property in which a security interest is granted pursuant to
the provisions of this section is collectively called the "collateral." The
collateral, together with all of Borrower's property of any kind held by Lender,
including the shares of stock held by Lender pursuant to the Pledge Agreements,
shall stand as one general, continuing, collateral security for all obligations
and may be retained by Lender until all obligations have been satisfied in full.
5.2. As further security for the prompt satisfaction of all
obligations arising under this Agreement, Borrower assigns to Lender all of
Borrower's right, title, and interest in and to, and grants Lender the lien on
and a security interest in, all of the following, wherever located, whether now
owned or hereafter acquired, together with all replacements and proceeds
(including, but without limitation, insurance proceeds):
5.2.1. Accounts;
5.2.2. Chattel paper;
5.2.3. Contracts;
5.2.4. Contract rights;
5.2.5. Documents;
5.2.6. Equipment;
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5.2.7. Fixtures;
5.2.8. General intangibles;
5.2.9. Instruments;
5.2.10. Inventory;
5.2.11. The pledged stock;
5.2.12. All records pertaining to any other collateral.
5.3. Priority of Liens. The above-stated liens shall be first and
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prior liens except for permitted liens.
5.4. Financing Statements.
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5.4.1. Borrower will:
5.4.1.1. Join with Lender in executing such financing statements
(including amendments and continuation statements) in form
satisfactory to Lender, as Lender may from time to time specify;
5.4.1.2. Pay to or reimburse Lender for all costs and taxes of
filing or recording the statements in such public offices as Lender
may designate; and
5.4.1.3. Take such other steps as Lender may direct, including
the noting of Lender's lien on the collateral and on any certificates
of title therefore, to perfect Lender's interest in the collateral.
5.4.2. In addition to the foregoing, and not in limitation
thereof;
5.4.3. A photocopy or other reproduction of this Agreement
shall be sufficient as a financing statement and may be filed in any
appropriate office thereof; and
5.4.4. To the extent lawful, Borrower appoints Lender as its
attorney-in-fact (without requiring Lender to act as such) to execute
any financing statement in the name of Borrower, and to perform all
other acts that Lender deems appropriate to preserve and continue its
security interest in, and to protect and preserve, the collateral.
6. Representations and Warranties.
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To induce Lender to enter into this Agreement, Borrower represents and
warrants to Lender as follows, all of which representations and warranties shall
survive until all obligations are satisfied in full:
6.1. Borrower is a corporation duly organized and validly existing,
and in good standing, under the laws of the State of Delaware; Borrower has the
lawful power to own its properties and to engage in the business it conducts,
and is qualified and in good standing as a foreign corporation in the
jurisdictions wherein the nature of the business transacted by it or property
owned by it makes such qualification necessary;
6.2. Borrower is not in default with respect to any of its existing
indebtedness, and the making and performance of this Agreement, the Note, and
the collateral documents will not immediately or with the passage of time, or
the giving of notice, or both:
6.2.1. Violate the charter or bylaw provisions of Borrower, or
violate any laws or result in a default under any contract, agreement,
or agreement to which Borrower is a party to by which Borrower or its
property is bound;
6.2.2. Result in the creation or imposition of any security
interest in, or lien or encumbrance on, any of the assets of Borrower,
except in favor of Lender;
6.3. Borrower has the power and authority to enter into and perform
this Agreement, the Note, and the collateral documents, and to incur such
obligations, and has taken all corporate action necessary to authorize the
execution, delivery, and performance of this Agreement, the Note, and the
collateral documents;
6.4. This Agreement and the collateral documents are, and the Note
when delivered will be, valid, binding and enforceable in accordance with their
respective terms;
6.5. There is no pending order, notice, claim, litigation, proceeding,
or investigation against or affecting Borrower, whether or not covered by
insurance, that would materially and adversely affect the business or prospects
of Borrower if adversely determined;
6.6. Borrower has good and marketable title to all of its assets,
which are not subject to any security interest, encumbrance, lien or claim of
any third person, except for permitted liens;
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6.7. Borrower has no material indebtedness of any nature, including,
but not limited to, liabilities for taxes or any interest or penalties relating
thereto;
6.8. Except as otherwise permitted in this Agreement, Borrower has
filed all federal, state and local tax returns and other reports it is required
by law to file prior to the effective date hereof and that are material to the
conduct of its business, has paid or caused to be paid all taxes, assessments,
and other governmental charges that are due and payable prior to the effective
date thereof; and has made adequate provision for the payment of such taxes,
assessments, or other charges accruing but not yet payable; and Borrower has no
knowledge of any deficiency or additional assessment in a materially important
amount in connection with any taxes, assessments, or charges, not provided for
on its books;
6.9. No representation or warranty by Borrower contained herein
or in any certificate or other document furnished by Borrower pursuant to
this Agreement contains any untrue statement of material fact or omits to
state a material fact necessary to make such representation or warranty not
misleading in light of circumstances under which it was made;
6.10. Except for the Prior Advance, Borrower has no indebtedness;
6.11. Borrower is not a party to any collective bargaining agreement;
6.12. Borrower is not an employer in any employee benefit plan under
the Employee Retirement Income Security Act of 1974 ("ERISA").
7. Borrower's Covenants.
Borrower covenants and agrees with Lender that, so long as any of its
obligations arising under this Agreement remain unsatisfied, Borrower will
comply with the following covenants:
7.1. Borrower will use the proceeds of the loan only for working
capital and for the acquisition of controlling interests in restaurant
franchisors and for making loans to acquired companies for capital improvements
and debt consolidation. Borrower will furnish Lender with such evidence as
Lender may reasonably require with respect to such use.
7.2. Borrower will furnish Lender within sixty days after the close
of Borrower's fiscal year Borrower's income statement and balance
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sheet, certified by Borrower's accountant to have been prepared in accordance
with generally accepted accounting principles consistently applied;
7.3. Promptly after the sending or making available or filing of the
same, copies of all reports, proxy statements, and financial statements that
Borrower sends or makes available to its shareholders and all registration
statements and reports that Borrower files with the Securities and Exchange
Commission;
7.4. Borrower will maintain, or cause to be maintained, public
liability insurance and fire and extended coverage insurance on all assets owned
by it, all in such form and amounts as are consistent with industry practices
and with such insurers as may be satisfactory to Lender. Such policies shall
contain a provision whereby they cannot be cancelled except after 30 days'
written notice to Lender. Borrower will furnish to Lender such evidence of
insurance as Lender may require. Borrower agrees that, in the event it fails to
pay or cause to be paid the premium on any such insurance, Lender may do so and
on demand be reimbursed therefore by Borrower. Borrower assigns to Lender any
returned or unearned premiums that may be due Borrower on cancellation of any
such policies for any reason whatsoever and directs the insureds to pay Lender
any amounts so due. Lender is hereby appointed Borrower's attorney-in-fact
(without requiring Lender to act as such) to endorse any check that may be
payable to Borrower to collect such returned or unearned premiums or the
proceeds of such insurance, and any amount so collected may be applied by Lender
toward the satisfaction of any of the obligation.
7.5. Borrower will pay or cause to be paid when due all taxes,
assessments, and charges or levies imposed on it or on any of its property that
it is required to withhold and pay over, except when contested in good faith by
appropriate proceedings, with adequate reserves therefore having been set aside
on its books. But Borrower shall pay or cause to be paid all such taxes,
assessments, charges or levies promptly when foreclosure on any lien that has
attached (or security therefore) appears imminent.
7.6. Borrower, within a reasonable time after written request
therefore, will make available for inspection by authorized representatives of
Lender any of its books and records, and will furnish Lender any information
regarding its business affairs and financial condition;
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7.7. Borrower will take all necessary stops to preserve its corporate
existence and franchises and comply with all present and future laws applicable
to it in the operation of its business and all material agreements to which it
is subject;
7.8. Borrower will give immediate notice to Lender of any litigation
proceeding in which it is a party and which might materially and adversely
affect its operations, financial condition, property or business;
7.9. Within thirty (30) days after Lender's request, Borrower will
furnish Lender with copies of federal income tax returns filed by Borrower;
7.10 Borrower will pay when due, or within applicable grace periods,
all indebtedness due third persons, except when the amount is being contested in
good faith by appropriate proceedings and with adequate reserves therefor being
set aside on the books of Borrower. If Borrower defaults in the payment of any
principal, or installment thereof or interest on, any such indebtedness, Lender
shall have the right, in its discretion, to pay such interest or principal for
the amount of Borrower and be reimbursed by Borrower on demand;
7.11. Borrower will notify Lender immediately if it becomes aware of
the occurrence of any event of default or of any fact, condition, or event that,
with the giving of notice or passage of time, or both, could become an event of
default, or of the failure of Borrower to observe any of its undertakings under
this Agreement;
7.12. Borrower will not change its name, enter into any merger,
consolidation, reorganization or recapitalization, or reclassify its capital
stock, except as otherwise provided herein;
7.13. Borrower will not sell, transfer, lease, or otherwise dispose of
all, or any material part, of its assets, except in the ordinary course of
business;
7.14. Borrower will not mortgage, pledge, grant, or promote to exist a
security interest in or lien on any of its assets of any kind, now owned or
hereafter acquired, except for permitted liens;
7.15. Borrower will not become liable, directly or indirectly, as
guarantor or otherwise, for any obligation of any other person, except for the
endorsement of commercial paper for deposit or collection in the ordinary course
of business;
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7.16. Borrower will not incur, create, assume, or permit
to exist any indebtedness except:
7.16.1. The loan;
7.16.2. Trade indebtedness incurred in the ordinary
course of business;
7.16.3. Indebtedness secured by permitted liens.
7.17. Borrower will not declare or pay any dividends or
make any other payment or distribution on account of its capital stock;
7.18. Borrower will not form any subsidiary or make any
investment in, or make any loan in the nature of an investment to, a
person;
7.19. Borrower will not make any loan or advance to any
officer, shareholder, director, or employee of Borrower except temporary
advances in the ordinary course of business, nor pay salary to executive
and management personnel aggregating more than One Million ($1,000,000.00)
Dollars per year;
7.20. Borrower will not prepay any subordinated
indebtedness, indebtedness for borrowed money, or indebtedness secured by
any of its assets except the obligations or enter into or modify any
agreement as a result of which the terms of payment of any of the foregoing
indebtedness are waived or modified;
8. Default.
8.1 Events of Default. The occurrence of any one or more
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of the following events shall constitute an event of default under this
Agreement:
8.1.1. Borrower shall fail to pay when due any
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installment of principal or interest, or any fee or charge
payable hereunder, and such failure shall continue for a
period of fifteen (15) days;
8.1.2. Borrower shall fail to observe or perform any
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other obligation to be observed or performed by it hereunder
or under any of the collateral documents, and this failure
shall continue for fifteen (15) days after (a) notice of
failure from the Lender or (b) Lender is notified of the
failure or should have been so notified pursuant to the
terms of this Agreement, whichever is earlier;
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8.1.3. Borrower shall fail to pay any indebtedness due
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to any third persons, and this failure shall continue beyond
any applicable grace period, or Borrower shall suffer to
exist any other event of default under agreement binding
Borrower;
8.1.4. Any financial statement, representation,
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warranty, or certificate made or furnished by Borrower to
Lender in connection with this Agreement, or as an
inducement to Lender to enter into this Agreement, or in any
separate document or statement to be delivered hereunder to
Lender, shall be materially false, incorrect or incomplete
when made;
8.1.5. Borrower shall admit its inability to pay its
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debts as they mature, or shall make an assignment for the
benefit of its or any of its creditors;
8.1.6. Proceedings in bankruptcy, or for reorganization
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of Borrower, or for the readjustment of any of Borrower's
debts, under the Bankruptcy Code, as amended, or any part
thereof, or under any other laws, whether state or federal,
for the relief of debtors, now or hereafter existing, shall
be commenced against Borrower and shall not be discharged
within six (6) months of their commencement, or any such
proceeding shall be commenced by Borrower;
8.1.7. A receiver or trustee shall be appointed for
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Borrower or for any substantial part of its assets, or any
proceedings shall be instituted for the dissolution or the
full or partial liquidation of Borrower, and the receiver or
trustee shall not be discharge within six (6) months of his
or her appointment, or the proceedings shall not be
discharged within six (6) months of their commencement, or
Borrower shall discontinue business or materially change the
nature of its business;
8.1.8. Borrower shall suffer final judgments for
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payment of money, not covered by insurance, aggregating in
excess of One Million ($1,000,000.00) Dollars and shall not
discharge the same within sixty (60) days, unless, pending
further proceedings, execution has not been commenced or, if
commenced, has been effectively stayed;
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8.1.9. A judgement creditor of Borrower shall obtain
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possession of any of the collateral by any means, including,
without limitation, levy, replevin, or self-help.
8.2. Acceleration. Immediately, and without notice, on the
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occurrence of an event of default specified in this section, or at the option of
Lender on such occurrence, but only on written notice to Borrower, or on the
occurrence of any other event of default, all obligations, whether hereunder or
otherwise, shall immediately become due and payable without further action of
any kind.
8.3. Remedies. After any acceleration as provided in this
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section, Lender shall have, in addition to the rights and remedies given to it
by this Agreement, the Note and the collateral documents, all those rights and
remedies allowed by all applicable laws, including, but not limited to, the
Uniform Commercial Code as enacted in any jurisdiction in which any collateral
may be located. Without limiting the generality of the foregoing, Lender,
immediately and without demand of performance and without other notice, except
as specifically required by this Agreement or the collateral documents, for any
demand whatsoever to Borrower, all of which are hereby expressly made, and,
without advertisement, may sell at public or private sale, or otherwise
realized, in Jacksonville, Florida, or elsewhere, the whole, or from time to
time, any part of the collateral, or any interest that Borrower may have
therein. After deducting from the proceeds of sale or other disposition of the
collateral all expenses, including all reasonable expenses for legal services,
Lender shall apply such proceeds towards the satisfaction of the obligations.
Any remainder of the proceeds after satisfaction in full of the obligation shall
be distributed as required by applicable laws. Notice of any sale or other
disposition shall be given to Borrower at least thirty (30) days before the time
of any intended public sale or of the time after which any intended private sale
or other disposition of the collateral is to be made, which Borrower hereby
agrees shall be reasonable notice of such sale or other disposition. Borrower
agrees to assemble, or cause to be assembled, at its own expense, the collateral
at such place or places as Lender shall designate. At any such sale or other
disposition, Lender, to the extent possible under applicable laws, may purchase
the whole or any part of the collateral, free from any right of redemption on
the part of Borrower, which right is hereby waived and released. Without
limiting the generality of any of the rights and remedies conferred on Lender
under this paragraph, Lender, to the full extent permitted by applicable laws,
may:
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8.3.1. Enter on the premises of Borrower, exclude therefrom
Borrower or any affiliate, and take immediate possession of the
collateral, either personally or by means of a receiver appointed
by a court of competent jurisdiction
8.3.2. At Lender's option, use, operate, manage, and control
the collateral in any manner;
8.3.3. Collect and receive all rents, income, revenue,
earnings, issues, and profits; and
8.3.4. Maintain, repair, renovate, alter, or remove the
collateral as Lender may determine in its discretion.
9. Construction.
The provisions of this Agreement shall be in addition to those of any
guaranty, pledge, security agreement, note, or other evidence of liability held
by Lender, all of which shall be construed as complementary to each other.
Nothing herein contained shall prevent Lender from enforcing any or all other
notes, guaranty, pledge, or security agreements in accordance with their
respective terms.
10. Further Assurance.
From time to time, Borrower shall execute and deliver to Lender such
additional documents and will provide such additional information as Lender may
reasonably require to carry out the terms of this Agreement and be informed of
Borrower's state and affairs.
11. Enforcement and Waiver by Lender.
Lender shall have the right at all times to enforce the provisions of
this Agreement and the collateral documents in strict accordance with their
terms, notwithstanding any conduct or custom on the part of Lender in refraining
from so doing at any time or times. The failure of Lender at any time or times
to enforce its rights under such provisions strictly in accordance with the
same, shall not be construed as having created a custom in any way or manner
contrary to specific provisions of this Agreement or as having in any way or
manner modified or waived the same. All rights and remedies of Lender are
cumulative and concurrent, and the exercise of one right or remedy shall not be
deemed a waiver or release of any other right or remedy.
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12. Expenses of Lender.
Borrower, on demand, will reimburse Lender for all expenses, including
the reasonable fees and expenses of legal counsel for Lender, incurred by Lender
in connection with the preparation, administration, amendment, modification, or
enforcement, of this Agreement and the collateral documents, and the collection
or attempted collection of the Note.
13. Notices.
Any notices or consents required or permitted by this Agreement shall
be in writing and shall be deemed delivered if delivered in person, or, if sent,
by certified mail, postage prepaid, return receipt requested, or by facsimile,
as follows, unless such address or facsimile number is changed by written
notice:
If to Borrower:
Jacksonville Restaurant Acquisition Corp.
0000 Xxxxxxxx Xxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Fax: (000) 000-0000
If to Lender:
St. Xxxxx Asset Investment, Inc.
0000 Xxxxx Xxxx Xxxx - Xxxxx 000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
14. Lender's Option to Purchase Shares of Stock.
14.1. Borrowers Business Expansion Plan. Borrower intends to
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use the proceeds of the loan to acquire a controlling interest in a public
corporation engaged in the restaurant franchisor business, to acquire a
controlling interest in one or more public and/or private corporations engaged
in the same or similar business, to develop the restaurant franchise concepts of
the acquired corporations, to merge said corporations into one public company,
and ultimately to make a secondary offering of shares pursuant to applicable
laws.
14.2. Lender's Option. As additional consideration for
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Lender making the loan, and on the conditions hereinafter set forth, Borrower
hereby grants to Lender the option to purchase from Borrower up to a 49%
interest in the shares of stock in Borrower. Said option shall be
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exercised in writing, shall state the percentage ownership up to 49% Lender
desires to acquire, and shall be delivered subject to the following terms and
conditions:
14.2.1. Lender shall have advanced to Borrower pursuant to
this Agreement, regardless of whether all or any part, thereof
are paid at the time the Option is exercised, not less than Five
Million ($5,000,000.00) Dollars;
14.2.2. Borrower shall have substantially completed its
intended business expansion plan and make the appropriate filing
for a secondary offering with the Securities and Exchange
Commission;
14.2.3. Lender shall have delivered its written exercise of
the Option to Borrower within sixty (60) days after Borrower
notifies Lender in writing that Borrower has made the aforesaid
filing;
14.2.4. Lender shall have tendered to Borrower, subject to
applicable law, payment in the amount of Ten Thousand
($10,000.00) Dollars, or such pro-rated amount in the event
Lender opts to purchase less than a 49% interest.
15. Governing Law.
It is agreed that this Agreement shall be governed by, construed, and
enforced in accordance with the laws of the State of Delaware. Any action to
enforce the terms of this Agreement shall be commenced in Federal or State court
in the State of Florida.
16. Binding Effect.
This Agreement shall inure to the benefit of, and shall be binding on,
the respective successors and permitted assigns of the parties.
17. Assignment.
Borrower has no right to assign any of its rights or obligations under
this Agreement without the prior, express written consent of Lender, which
consent shall not be withheld unreasonably.
18. Entire Agreement.
This Agreement shall constitute the entire agreement between the
parties, and any prior agreement, understanding or representation of any
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kind preceding the date of this Agreement shall not be binding on either party
except to the extent incorporated in this Agreement.
19. Modification.
Any modification of this Agreement or additional obligation assumed by
either party in connection with this Agreement shall be binding only if
evidenced in writing signed by each party or an authorized representative of
each party.
20. Attorney Fees.
In the event any action is filed in relation to this Agreement, the
unsuccessful party in the action shall pay to the successful party, in addition
to all sums that either party may be called on to pay, a reasonable sum for the
successful party's attorney fees.
21. Paragraph Headings.
The paragraph headings of this Agreement are solely for the
convenience of the parties and shall not be used to explain, modify, simplify,
or aid in the interpretation of the provisions of this Agreement.
22. Severability.
If any provision of this Agreement shall be held invalid under any
applicable laws, invalidity shall not affect any other provision of this
Agreement that can be given effect without the invalid provision, and, to this
end, the provisions of this Agreement are severable. Notwithstanding the
foregoing, Lender's option to purchase shares of stock in Borrower shall under
no circumstances be deemed severable; therefore, in the event such option is
held invalid, same shall be considered an event of default under this Agreement.
16
IN WITNESS WHEREOF, the parties have executed this Agreement effective
the day and year first above written.
St. Xxxxx Asset Investment, Inc.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Xxxxx Xxxx, Pres.
Jacksonville Restaurant Acquisition Corp.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx, Pres.
17
