1
Exhibit 10.1
Bank of America
LOAN AGREEMENT
This Loan Agreement (the "Agreement") dated August 18, 2000, by and
between Bank of America, N.A., a national banking association ("Bank") and the
Borrower described below.
In consideration of the Loan or Loans described below and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, Bank and Borrower agree as follows:
1. DEFINITIONS AND REFERENCE TERMS. In addition to any other terms
defined herein, the following terms shall have the meaning set forth with
respect thereto:
A. BORROWER: XXXXXX TECHNOLOGIES, INC., a
Delaware corporation
B. BORROWER'S ADDRESS: 0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
C. CURRENT ASSETS. Current Assets means the aggregate amount
of all of Borrower's assets that would, in accordance with GAAP, properly be
defined as current assets.
D. CURRENT LIABILITIES. Current Liabilities means the
aggregate amount of all current liabilities as determined in accordance with
GAAP, but in any event shall include all liabilities except those having a
maturity date which is more than one year from the date as of which such
computation is being made. Current liabilities do not include deferred revenues
or xxxxxxxx in excess of costs as reflected on Borrower's Consolidated Financial
Statements.
E. LOAN. Any loan described in Section 2 hereof and any
subsequent loan that is subject to this Loan Agreement.
G. LOAN DOCUMENTS. Loan Documents means this Loan Agreement
and any and all promissory notes executed by Borrower in favor of Bank and all
other documents, instruments, guarantees, certificates and agreements executed
and/or delivered by Borrower, any guarantor or third party in connection with
any Loan.
H. TANGIBLE NET WORTH. Tangible Net Worth means the amount by
which total assets exceed total liabilities in accordance with GAAP, less
Intangible Assets.
I. TOTAL ASSETS. Shall be those total assets as listed on the
Borrower's Consolidated balance sheet.
J. TOTAL LIABILITIES. Shall be Total Liabilities as listed on
the Borrower's Consolidated balance sheet, less deferred revenues and xxxxxxxx
in excess of costs.
K. ACCOUNTING TERMS. All accounting terms not specifically
defined or specified herein shall have the meanings generally attributed to such
terms under generally accepted accounting principles ("GAAP"), as in effect from
time to time, consistently applied, with respect to the financial statements
referenced in Section 3.H. hereof.
2. LOANS.
A. LOAN. Bank has made one or more loans to Borrower in the
aggregate principal face amount of $10,000,000.00. The obligation to repay the
loans is evidenced by a promissory note dated on or about the date hereof (the
promissory note or notes together with any and all renewals, extensions or
rearrangements thereof being hereafter collectively referred to as the "Note")
having a maturity date of 2/28/02 and repayment terms and interest rate as set
forth in the Note.
i. REVOLVING CREDIT FEATURE. The Loan provides for a
revolving line of credit (the "Line") under
-1-
2
which Borrower may from time to time, borrow, repay
and re-borrow funds.
ii. CONDITIONS TO ADVANCE FUNDS UNDER THE LINE OF CREDIT:
Prior to the disbursement of any advances, Bank shall
have received, duly executed, all Loan Documents and
any other documents and instruments necessary or
advisable in connection with the Loan, all of which
shall be in form and substance reasonably
satisfactory to the Bank and its counsel. Further,
Borrower shall be in compliance with all financial
covenants as evidenced by its most recent quarterly
financial statements and Bank shall have determined
that there shall exist no event of default; the
representations and warranties contained in the Loan
documents shall be true and accurate as of the date
of such advance; there shall have occurred no
material adverse change in the financial condition of
the Borrower; and the Bank shall have reasonably
determined that the prospect of payment or
performance of the Loan has not been materially
impaired.
iii. Prior to any advances, Borrower shall submit a
certificate indicating their current compliance with
the financial covenants listed above.
iv. LETTER OF CREDIT SUBFEATURE. As a subfeature under
the Line, and upon Borrower's request, Bank will from
time to time, issue letters of credit for the account
of Borrower or its subsidiaries (each, a "Letter of
Credit" and collectively, "Letters of Credit");
provided, however, that the form and substance of
each Letter of Credit shall be subject to approval by
Bank in its sole and reasonable discretion and
Borrower and Bank agree to terms thereon; and
provided further that the aggregate undrawn amount of
all outstanding Letters of Credit plus the principal
balance advanced under the Line shall not at any time
exceed $10,000,000.00. The undrawn amount of all
Letters of Credit plus any and all amounts paid by
Bank in connection with drawings under any Letter of
Credit for which the Bank has not been reimbursed
shall be reserved under the Line and shall not be
available for advances thereunder. Each draft paid by
Bank under a Letter of Credit shall be deemed an
advance under the Line and shall be repaid in
accordance with the terms of the Line; provided
however, that if the Line is not available for any
reason whatsoever, at the time any draft is paid by
Bank, or if advances are not available under the Line
in such amount due to any limitation of borrowing set
forth herein, then the Bank shall notify Borrower
thereof in writing and Borrower hereby agrees that
the full amount of such drafts shall be immediately
due and payable, together with interest thereon, from
the date such amount is paid by Bank to the date such
amount is fully repaid by Borrower, at that rate of
interest applicable to advances under the Line. In
such event, Borrower agrees that Bank, at Bank's sole
discretion may debit Borrower's deposit account with
Bank for the amount of such draft. Further, should
the maturity date of any Letter of Credit extend
beyond the maturity date of the Line and the maturity
date on the Line is not extended for any reason
whatsoever, Borrower agrees to provide collateral in
the form of cash or liquid investments in a form
reasonably acceptable to Bank, in an amount equal to
the amount of any Letter(s) of Credit outstanding.
This collateral shall remain with the Bank for a
period of time not less than two weeks after the
maturity date on any Letter of Credit.
3. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents and
warrants to Bank as follows:
A. GOOD STANDING. Borrower is a duly organized, validly
existing and in good standing under the laws of and has the power and authority
to own its property and to carry on its business in each jurisdiction in which
Borrower does business.
B. AUTHORITY AND COMPLIANCE. Borrower has full power and
authority to execute and deliver the Loan Documents and to incur and perform the
obligations provided for therein; all of which have been duly authorized by all
proper and necessary action of the appropriate governing body of Borrower. No
consent or approval of any public authority or other third party is required as
a condition to the validity of any Loan Document, and Borrower is in compliance
with all laws and regulatory requirements to which it is subject in all material
respects.
C. BINDING AGREEMENT. This Agreement and the other Loan
Documents executed by Borrower
-2-
3
constitute valid and legally binding obligations of Borrower, enforceable in
accordance with their terms.
D. LITIGATION. There is no proceeding involving Borrower
pending or, to the knowledge of Borrower, threatened before any court or
governmental authority which would have a material adverse affect on the
Borrower, agency or arbitration authority, except as disclosed to Bank in
writing and acknowledged by Bank prior to the date of this Agreement.
E. NO CONFLICTING AGREEMENTS. There is no charter, bylaw,
stock provision, partnership agreement or other document pertaining to the
organization, power or authority of Borrower and no provision of any existing
agreement, mortgage, indenture or contract binding on Borrower or affecting its
property, which would conflict with or in any way prevent the execution,
delivery or carrying out of the terms of this Agreement and the other Loan
Documents. F. TAXES. All taxes and assessments due and payable by Borrower have
been paid or are being contested in good faith by appropriate proceedings and
the Borrower has filed all tax returns which it is required to file.
G. FINANCIAL STATEMENTS. The consolidated financial statements
of Borrower heretofore delivered to Bank have been prepared in accordance with
GAAP applied on a consistent basis throughout the period involved and fairly
present Borrower's financial condition as of the date or dates thereof, and
there has been no material adverse change in Borrower's financial condition or
operations since June 30, 2000. Borrower will deliver to Bank a copy of its Form
10-Q Filing with the SEC due as of August 15, 2000. All factual information
furnished by Borrower to Bank in connection with this Agreement and the other
Loan Documents is and will be accurate and complete on the date as of which such
information is delivered to Bank and is not and will not be incomplete by the
omission of any material fact necessary to make such information not misleading.
H. PLACE OF BUSINESS. Borrower's chief executive office is
located at:
0000 XXXXX XXXXX XXXX,
XXXX XXXXX, XXXXXXX 00000
I. CONTINUATION OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made under this Agreement shall be deemed to be
made at and as of the date hereof and at and as of the date of any advance under
any Loan.
4. AFFIRMATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will during the term
of this Agreement, unless Bank consents otherwise in writing (and without
limiting any requirement of any other Loan Document):
A. FINANCIAL COVENANT(S) ON A CONSOLIDATED BASIS:
i.) At all times, maintain a TOTAL LIABILITIES to
TANGIBLE NET WORTH ratio of not more than 0.5 to
1.00.
B. CASH LIQUIDITY. Maintain cash liquidity of at least
$14,000,000.00. For this purpose, cash liquidity shall be defined as cash, cash
equivalents or highly liquid investments consistent with Borrower's 1999
investment policy as provided to Bank. Borrower agrees that Bank or its
subsidiaries will invest such funds. Further, Borrower agrees to have such funds
on deposit with the Bank not later than 14 days after the closing of this Loan.
i.) All financial covenants as shown above shall be
tested on a QUARTERLY basis.
ii.) At the Banks request, Borrower will be required to
verify the liquidity of any covenant at the time of
any draw.
C. FINANCIAL STATEMENTS AND OTHER INFORMATION. Maintain a
system of accounting reasonably satisfactory to Bank and in accordance with GAAP
applied on a consistent basis throughout the period involved, permit Bank's
officers or authorized representatives to visit and inspect Borrower's books of
account and other records at such reasonable times and as often as Bank may
reasonalby desire, and if there were to be a discrepancy in which the Borrower
is not cooperating with Bank on such matter, pay the reasonable fees and
disbursements of any accountants or other agents of Bank selected by Bank for
the
-3-
4
foregoing purposes. Unless written notice of another location is given to Bank,
Borrower's books and records will be located at Borrower's chief executive
office set forth above. All financial statements called for below shall be
prepared in form and content consistent with SEC rules and regulations and by
independent certified public accountants acceptable to Bank. Bank agrees that
for purposes hereof, any of the "Big Five" public accounting firms is
acceptable.
In addition, Borrower will:
[X] i. Furnish to Bank a compliance certificate for (and
executed by an authorized representative of) Borrower
concurrently with and dated as of the date of delivery of each of
the financial statements as required in paragraphs iii and iv
below, containing (a) a certification that the financial
statements of even date are true and correct and that the
Borrower is not in default under the terms of this Agreement, and
(b) computations and conclusions, in such detail as Bank may
reasonably request, with respect to compliance with this
Agreement, and the other Loan Documents, including computations
of all quantitative covenants listed in Sections 4 (A) and (B).
[X] ii. Furnish to Bank promptly such additional information,
reports and statements respecting the business operations and
financial condition of Borrower and , respectively, from time to
time, as Bank may reasonably request.
[X] iii. Furnish to Bank within one hundred twenty (120) days
of the end of each fiscal year, unqualified audited financial
statements prepared on a consolidated basis by an independent
certified public account satisfactory to Bank and SEC. Bank
agrees that for purposes hereof, any of the "Big Five" public
accounting firms is acceptable. Such statements shall include at
a minimum, a consolidated balance sheet, consolidated income
statement, consolidated statement of cash flows, reconciliation
of net worth and footnotes.
[X] iv. Furnish to Bank within forty-five (45 days) of the end
of each of the first three fiscal quarters, internally prepared
financial statements prepared on a consolidated basis inclusive
of a balance sheet, income statement, and statement of cash
flows. Bank agrees that Form 10-Q filed by Borrower with the SEC
will satisfy this requirement.
E. EXISTENCE AND COMPLIANCE. Maintain its existence, good
standing and qualification to do business, where required and comply with all
laws, regulations and governmental requirements including, without limitation,
environmental laws applicable to it or to any of its property, business
operations and transactions.
F. ADVERSE CONDITIONS OR EVENTS. Promptly advise Bank in
writing of (i) any condition, event or act which comes to its attention that
would or might materially adversely affect Borrower's financial condition or
operations or Bank's rights under the Loan Documents, (ii) any litigation filed
by or against Borrower which would have a material adverse affect on the
Borrower, (iii) any event that has occurred that would constitute an event of
default under any Loan Documents.
G. TAXES AND OTHER OBLIGATIONS. Pay all of its taxes,
assessments and other obligations, including, but not limited to taxes, costs or
other expenses arising out of this transaction, as the same become due and
payable, except to the extent the same are being contested in good faith by
appropriate proceedings in a diligent manner.
H. OWNERSHIP OF ASSETS. Borrower has good title to its assets,
and its assets are free and clear of liens, except those granted to Bank, those
incurred through Borrower receiving lease financing regarding personal property
(i.e. furniture, hereinafter referred to as "Financed Assets") and/or as
disclosed to Bank in writing prior to the date of this Agreement.
I. MAINTENANCE. Maintain all of its tangible property in good
condition and repair and make all necessary replacements thereof, and preserve
and maintain all licenses, trademarks, privileges, permits, franchises,
certificates and the like necessary for the operation of its business.
J. INSURANCE. Maintain insurance with responsible insurance
companies on such of its properties, in such amounts and against such risks as
is customarily maintained by similar businesses operating in the same vicinity,
specifically to include fire and extended coverage insurance covering all
assets, business interruption insurance, workers compensation insurance and
liability insurance.
-4-
5
5. NEGATIVE COVENANTS. Until full payment and performance of all
obligations of Borrower under the Loan Documents, Borrower will not, during the
term of this Agreement, without the prior written consent of Bank (and without
limiting any requirement of any other Loan Documents):
A. EXTENSIONS OF CREDIT. Make or permit any subsidiary to
make, any loan or advance to any person or entity, except in the normal course
of its business or pursuant to its policy set out in Borrower's October 1999
prospectus. This covenant excludes the Borrower's formation and capitalization
of subsidiaries such a XxxxxxxXxxxxxxxx.xxx, Inc.
B. BORROWINGS. Create, incur, assume or become liable in any
manner for any indebtedness (for borrowed money, deferred payment for the
purchase of assets, other than Financed Assets, as surety or guarantor for the
debt for another, or otherwise) other than to Bank, except for normal trade
debts incurred in the ordinary course of Borrower's business, and except for
existing indebtedness disclosed to Bank in writing and acknowledged by Bank
prior to the date of this Agreement.
C. CHARACTER OF BUSINESS. Change the general character of
business as conducted at the date hereof, or engage in any type of business not
reasonably related to its business as presently conducted.
i. MANAGEMENT CHANGE. Make any substantial change in its
present executive or management personnel.
ii. TRANSFER OF ASSETS OR CONTROL. Sell, lease, assign or
otherwise dispose of or transfer any material assets,
except in the normal course of its business, that
will have a material adverse change on the financial
condition of the Borrower other than its $3 million
cash infusion of equity into its subsidiary,
XxxxxxxXxxxxxxxx.xxx or the acquisition of or merger
of the Borrower into an entity where all amounts
advanced by Bank to Borrower hereunder (including all
interest payments due under the Promissory Note) have
been paid in full.
iii. LIENS. Grant, suffer or permit any contractual or
noncontractual lien on or security interest in its
assets (other than Financed Assets) securing any
obligations due to Bank or fail to promptly pay when
due all lawful claims, whether for labor, materials
or otherwise.
6. DEFAULT. Borrower shall be in default under this Agreement and under
each of the other Loan Documents if it shall default in the payment of any
amounts due and owing under the Loan or should it fail to timely and properly
observe, keep or perform any term, covenant, agreement or condition in any Loan
Document or in any other loan agreement, promissory note, security agreement,
assignment or other contract securing or evidencing payment of any indebtedness
of Borrower to Bank or any affiliate or subsidiary of Bank of America
Corporation.
The Bank will provide written notice to the Borrower listing any non-monetary
defaults that occur, subject to a 30-day cure period. Further, there shall be a
15-day cure period for all monetary defaults. The parties agree that the cure
period for non-monetary defaults commence upon such party's receipt of written
notice. Written notice shall not be required in the case of monetary defaults.
7. REMEDIES UPON DEFAULT. If an event of default shall occur, subject
to any applicable cure period, Bank shall have all rights, powers and remedies
available under each of the Loan Documents as well as all rights and remedies
available at law or in equity.
8. NOTICES. All notices, requests or demands which any party is
required or may desire to give to any other party under any provision of this
Agreement must be in writing delivered to the other party at the following
address:
-5-
6
Borrower: XXXXXX TECHNOLOGIES, INC.
ATTN: Legal Department
CC: Finance/Accounting Department
0000 Xxxxx Xxxxx Xxxx
Xxxx Xxxxx, XX 00000
Fax. No.: 000.000.0000
Bank: Bank of America, N.A.
000 Xxxxx Xxxxxxx Xxxxx
00xx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Fax No. 000.000.0000
or to such other address as any party may designate by written notice to the
other party. Each such notice, request and demand shall be deemed given or made
as follows:
A. If sent by mail, upon the earlier of the date of receipt or
five (5) days after deposit in the U.S. Mail, first class
postage prepaid;
B. If sent by any other means, upon delivery.
9. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to Bank
immediately upon demand the full amount of all costs and expenses, including
reasonable attorneys' fees (to include outside counsel fees and all allocated
costs of Bank's in-house counsel if permitted by applicable law), incurred by
Bank in connection with (a) negotiation and preparation of this Agreement and
each of the Loan Documents, and (b) all other costs and attorneys' fees incurred
by Bank for which Borrower is obligated to reimburse Bank in accordance with the
terms of the Loan Documents.
10.MISCELLANEOUS. Borrower and Bank further covenant and agree as
follows, without limiting any requirement of any other Loan Document:
A. CUMULATIVE RIGHTS AND NO WAIVER. Each and every right
granted to Bank under any Loan Document, or allowed it by law or equity shall be
cumulative of each other and may be exercised in addition to any and all other
rights of Bank, and no delay in exercising any right shall operate as a waiver
thereof, nor shall any single or partial exercise by Bank of any right preclude
any other or future exercise thereof or the exercise of any other right.
Borrower expressly waives any presentment, demand, protest or other notice of
any kind, including but not limited to notice of intent to accelerate and notice
of acceleration. No notice to or demand on Borrower in any case shall, of
itself, entitle Borrower to any other or future notice or demand in similar or
other circumstances.
B. APPLICABLE LAW. This Loan Agreement and the rights and
obligations of the parties hereunder shall be governed by and interpreted in
accordance with the laws of Florida and applicable United States federal law.
C. AMENDMENT. No modification, consent, amendment or waiver of
any provision of this Loan Agreement, nor consent to any departure by Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
an officer of Bank and Borrower, and then shall be effective only in the
specified instance and for the purpose for which given. This Loan Agreement is
binding upon Borrower, its successors and assigns, and inures to the benefit of
Bank, its successors and assigns; however, no assignment or other transfer of
Borrower's rights or obligations hereunder shall be made or be effective without
Bank's prior written consent, nor shall it relieve Borrower of any obligations
hereunder. There is no third party beneficiary of this Loan Agreement.
D. DOCUMENTS. All documents, certificates and other items
required under this Loan Agreement to be executed and/or delivered to Bank shall
be in form and content satisfactory to Bank and its counsel.
E. PARTIAL INVALIDITY. The unenforceability or invalidity of
any provision of this Loan Agreement shall not affect the enforceability or
validity of any other provision herein and the invalidity or unenforceability of
any provision of any Loan Document to any person or circumstance shall not
affect the enforceability or validity of such provision as it may apply to other
persons or circumstances.
-6-
7
F. SURVIVABILITY. All covenants, agreements, representations
and warranties made herein or in the other Loan Documents shall survive the
making of the Loan and shall continue in full force and effect so long as the
Loan is outstanding or the obligation of the Bank to make any advances under the
Line shall not have expired.
12.ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, 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 J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("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 INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE
COUNTY OF ANY BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS
INSTRUMENT, AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT
AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 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 60
DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION
PROVISION SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS
INSTRUMENT, AGREEMENT OR DOCUMENT; OR (II) BE A WAIVER BY 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 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, WRIT OF POSSESSION OR
THE APPOINTMENT OF A RECEIVER. 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 INSTRUMENT, AGREEMENT OR DOCUMENT. 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.
13. NO ORAL AGREEMENT. THIS WRITTEN LOAN AGREEMENT AND THE OTHER LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal by their duly authorized representatives as of the date
first above written.
-7-
8
BORROWER: BANK:
--------- ------
XXXXXX TECHNOLOGIES, INC., a BANK OF AMERICA, N.A., a
Delaware corporation national banking association
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxx Xxxxx
------------------------------- -------------------------------
XXXXXXX X. XXXXXX, XXXXX XXXXX, Vice President
Chief Financial Officer
and Secretary.
-8-
