BANK ONE
Exhibit 10.158
Credit Agreement
This agreement dated as of December 31, 2003 between Bank One, NA, with its main
office in Chicago, IL, and its successors and assigns,(the 'Bank"), whose
address is 0000 X. Xxxxx Xx., Xxxxxxxxx, XX 00000, and Eager Beaver Car Wash,
Inc. (the "Borrower"), whose address is 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx
Xxxxxx, XX 00000.
1. Credit Facilities.
1.1 Scope. This agreement, unless hereafter otherwise agreed to in writing
by the Bank and the Borrower or prohibited by applicable law, governs
the Credit Facilities.
2. Definitions. As used in this agreement, the following terms have the
following respective meanings:
2.1 "Credit Facilities" means all extensions of credit from the Bank to
the Borrower, whether now existing or hereafter arising. 2.2
"Liabilities" means all obligations, indebtedness and liabilities of
the Borrower to any one or more of the Bank ,BANK ONE CORPORATION, and
any of their subsidiaries, affiliates or successors, now existing or
later arising, including, without limitation, all loans, advances,
interest, costs, overdraft indebtedness, credit card indebtedness,
lease obligations, or obligations relating to any Rate Management
Transaction, all monetary obligations incurred or accrued during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceedings, regardless of whether allowed or allowable in such
proceeding, and all renewals, extensions, modifications,
consolidations or substitutions of any of the foregoing, whether the
Borrower may be liable jointly with others or individually liable as a
debtor, maker, co-maker, drawer, endorser, guarantor, surety or
otherwise, and whether voluntarily or involuntarily incurred, due or
not due, absolute or contingent, direct or indirect, liquidated or
unliquidated. The term Rate Management Transaction" in this agreement
means any transaction (including an agreement with respect thereto)
now existing or hereafier entered into among the Borrower, the Bank or
BANK ONE CORPORATION, or any of its subsidiaries or affiliates or
their successors, which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index
swap, equity or equity index option, bond option, interest rate
option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or
any other similar transaction (including any option with respect to
any of these transactions) or any combination thereof, whether linked
to one or more interest rates, foreign currencies, commodity prices,
equity prices or other financial measures.
2.3 "Notes" means all promissory notes, instruments and/or contracts
evidencing the terms and conditions of the Liabilities.
2.4 "Affiliate" means any person, corporation or other entity directly or
indirectly controlling, controlled by or under common control with the
Borrower and any director or officer of the Borrower or any subsidiary
of the Borrower.
2.5 "Distributions" means all dividends and other distributions made by
the Borrower to its shareholders, partners, owners or members, as the
case may be, other than salary, bonuses, and other compensation for
services expended in the current accounting period.
2.6 "Intangible Assets" means the aggregate amount of all assets
classified as intangible assets under generally accepted accounting
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principles, including, without limitation, goodwill, trademarks,
patents, copyrights, organization expenses, prepaid expenses,
franchises, licenses, trade names, brand names, mailing lists,
catalogs, excess of cost over book value of assets acquired, and bond
discount and underwriting expenses
2.7 Subordinated Debt" means debt subordinated to the Bank in manner and
by agreement satisfactory to the Bank.
2.8 "Tangible Capital Funds" means Tangible Net Worth plus Subordinated
Debt.
2.9 "Tangible Net Worth" means total assets less the sum of Intangible
Assets, receivables from stockholders and affiliates, and total
liabilities.
3. Conditions Precedent.
3.1 Conditions Precedent to Each Extension of Credit. Before any extension
of credit governed by this agreement, whether by disbursement of a
loan, issuance of a letter of credit or otherwise, the following
conditions must be satisfied:
A. Representations. The representations of the Borrower are U-ne on
and as of the date of the extension of credit;
B. No Event of Default. No default has occurred in any provision of
this agreement, the Notes or any agreement related to the Credit
Facilities and is continuing or would result from the extension
of credit, and no event has occurred which would constitute the
occurrence of any default hut for the lapse of time until the end
of any grace or cure period; and
C. Additional Approvals, Opinions, and Documents. The Bank has
received any other approvals, opinions and documents as it may
reasonably request.
4. Affirmative Covenants. The Borrower shall:
4.1 Insurance. Maintain insurance with financially sound and reputable
insurers covering its properties and business against those casualties
and contingencies and in the types and amounts as are in accordance
with sound business and industry practices.
4.2 Existence. Maintain its existence and business operations as presently
in effect in accordance with all applicable laws and regulations, pay
its debts and obligations when due under normal terms, and pay on or
before their due date, all taxes, assessments, fees and other
governmental monetary obligations, except as they may he contested in
good faith if they have been properly reflected on its books and, at
the Bank's request, adequate finds or security has been pledged to
insure payment.
4.3 Financial Records. Maintain proper books and records of account, in
accordance with generally accepted accounting principles, and
consistent with financial statements previously submitted to the Bank.
4.4 Inspection. Permit the Bank to inspect and copy the Borrower's
business records at such times and at such intervals as the Bank may
reasonably require, and to discuss the Borrower's business,
operations, and financial condition with the Borrower's officers and
accountants.
4.5 Financial Reports. Furnish, or cause to be furnished, to the Bank
whatever information, books and records the Bank may reasonably
request, including at a minimum:
A. With respect to Borrower, within sixty (60) days after the end of
each fiscal quarter, a balance sheet as of the end of that period
and statements of income, from the beginning of that fiscal year
to the end of that period, certified as correct by one of its
authorized agents.
B. With respect to Borrower, within one hundred and twenty (120)
days after and as of the end of each of its fiscal years, a
detailed financial statement including a balance sheet and
statements of income, such financial statement, to be prepared
internally in a form reasonably acceptable to the Bank, and
certified as correct by one of its authorized agents.
C. Within sixty (60) days after the end of each fiscal quarter of
Xxxx Security International, Inc., of Xxxx Car Wash - Arizona,
Inc. dba Genie Car Wash, of Colonial Full Service Car Wash, Inc.,
of Xxxx Truck Wash, Inc. dba Red Baron Truck Wash, and of Xxxx
Security Products, Inc., interim financial statements of each of
such entities, including a balance sheet as of the end of that
period and statements of income, from the beginning of that
fiscal year to the end of that period, certified as correct by
one of its authorized agents.
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D. Within one hundred and twenty (120) days after and as of the end
of each fiscal year of Xxxx Security International, Inc., of Xxxx
Car Wash - Arizona, Inc. dba Genie Car Wash, of Colonial Full
Service Car Wash, Inc., of Xxxx Truck Wash, Inc. dba Red Baron
Truck Wash, and of Xxxx Security Products, Inc., a detailed
financial statement of each of such entities, including a balance
sheet and statements of income, such financial statements to be
prepared internally in a form reasonably acceptable to the Bank,
and certified as correct by one of its authorized agents.
E. Via either the XXXXX System or its Home Page of Xxxx Security
International, Inc. ("MSII"), within one hundred and twenty (120)
days after the filing of its Annual Report on Form 10-K for the
fiscal year then ended with the Securities and Exchange
Commission, the financial statements for such fiscal year as
contained in such Annual Report on Form 10-K and, as soon as it
shall become available, the annual report to shareholders of the
Borrower for the fiscal year then ended.
F. Via either the XXXXX System or its Home Page of MSII, within
sixty (60) days after the filing of its Quarterly Report on Form
lO-Q for the fiscal quarter then ended with the Securities and
Exchange Commission, copies of the financial statements for such
fiscal quarter as contained in such Quarterly Report on Form
I0-Q, and, as soon as it shall become available, a quarterly
report to shareholders of the Borrower for the fiscal quarter
than ended.
G. Via either the XXXXX System or its Home Page of MSII, promptly
after the same become publicly available, copies of all periodic
and other reports, proxy statements and other materials filed by
MSH or any subsidiary with the Securities and Exchange
Conunission or any governmental authority succeeding to any or
all of the functions of said Commission. If for any reason the
XXXXX System and/or its Home Page are not available to MSII as is
required for making available the financial statements or reports
referred to above, MSII shall then furnish a copy of such
financial For the purposes of this section, "XXXXX System" means
the Electronic Data Gathering Analysis and Retrieval System owned
and operated by the United States Securities and Exchange
Commission or any replacement system, and "Home Page" means
MSII's corporate home page on the World Wide Web accessible
through the Internet via the universal resource locator (URL)
identified as "xxx.xxx.xxx/xxxxx/xxxxxxxxxxx/xxxxxxxx,xxx" or
such other universal resource locator that MSII shall designate
in writing to the Bank as its corporate home page on the World
Wide Web.
4.6 Notices of Claims, Litigation, Defaults, etc. Promptly inform the Bank
in writing of (1) all existing and all threatened litigation, claims,
investigations, adminisfrative proceedings and similar actions
affecting the Borrower which could materially affect the financial
condition of the Borrower; (2) the occurrence of any event which gives
rise to the Bank's option to terminate the Credit Facilities; (3) the
institution of steps by the Borrower to withdraw from, or the
institution of any steps to terminate, any employee benefit plan as to
which the Borrower may have liability; (4) any additions to or changes
in the locations of the Borrower's businesses; and (5) any alleged
breach of any provision of this agreement or of any other agreement
related to the Credit Facilities by the Bank.
4.7 Additional Information. Furnish such additional information and
statements, as the Bank may request, from time to time.
4.8 Insurance Reports. Furnish to the Bank, upon request of the Bank,
reports on each existing insurance policy showing such information as
the Bank may reasonably request.
4.9 Other Agreements. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between the Borrower
and any other party.
4.10 Title to Assets and Property. Maintain good and marketable title to
all of the Borrower's assets and properties.
4.11 Additional Assurances. Make, execute and deliver to the Bank such
other agreements as the Bank may reasonably request to evidence the
Credit Facilities and to perfect any security interests.
4.12 Employee Benefit Plans. Maintain each employee benefit plan as to
which the Borrower may have any liability, in compliance with all
applicable requirements of law and regulations.
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4.13 Depository Relationship. Maintain its primary banking depository
relationship with the Bank and establish such accounts and maintain
balances therein with the Bank sufficient to cover the cost of all the
Bank's services provided; provided, however, that nothing herein shall
require the Borrower to keep and maintain a specific minimum balance
in such accounts.
4.14 Compliance Certificates. Provide the Bank, within sixty (60) days
after the end of each fiscal quarter, with a certificate executed by
the Borrower's chief financial officer, or other officer or a person
acceptable to the Bank, certifying that, as of the date of the
certificate, no default exists under any provision of this agreement.
4.15 Compliance Certificates. Provide the Bank, within one hundred twenty
(120) days after the end of each fiscal year, with a certificate
executed by the Borrower's chief financial officer, or other officer
or a person acceptable to the Bank, certifying that, as of the date of
the certificate, no default exists under any provision of this
agreement.
5. Negative Covenants.
5.1 Unless otherwise noted, the financial requirements set forth in this
section will be computed in accordance with generally accepted
accounting principles applied on a basis consistent with financial
statements previously submitted by the Borrower to the Bank, 5.2
Without the written consent of the Bank, the Borrower will not:
A. Dividends. While there is an existing default under any agreement
between Bank and MSII, or if to do so will cause any such
default, permit MSII to acquire or retire any of MSII's shares of
capital stock, or declare or pay dividends or make any other
distributions upon any of MSII's shares of capital stock, except
that in the absence of any default, MSII may declare dividends in
its capital stock.
B. Debt. Incur, contract for, assume, or permit to remain
outstanding, indebtedness for borrowed money, installment
obligations, or obligations under capital leases or operating
leases, other than (I) unsecured trade debt incurred in the
ordinary course of business, (2) indebtedness owing to the Bank,
(3) indebtedness reflected in the latest financial statement of
the Borrower frrnished to the Bank prior to execution of this
agreement and that is not to be paid with proceeds of borrowings
under the Credit Facilities, and (4) indebtedness outstanding as
of the date hereof that has been disclosed to the Bank in writing
and that is not to be paid with proceeds of borrowings under the
Credit Facilities.
C. Guaranties. Guarantee or otherwise become or remain secondarily
liable on the undertaking of another, except for endorsement of
drafts for deposit and collection in the ordinary course of
business,
D. Liens. Create or permit to exist any lien on any of its property,
real or personal, except: existing liens known to the Bank; liens
to the Bank; liens incurred in the ordinary course of business
securing current non-delinquent liabilities for taxes, worker's
compensation, unemployment insurance, social security and pension
liabilities.
E. Use of Proceeds. Use, or permit any proceeds of the Credit
Facilities to be used, directly or indirectly, for the purpose of
"purchasing or carrying any margin stock" within the meaning of
Federal Reserve Board Regulation U. At the Bank's request, the
Borrower will furnish a completed Federal Reserve Board Form U-1.
F. Continuity of Operations. (1) Engage in an mess activities sub
ntially different from those in which the Borrower is presently
engaged; (2) cease operat , liquidate, merge, transfer, acquire
or consolidate with any other entity, change its name, dissolve,
or sell any material assets out of the ordinary course of
business; or (3) enter into any arrangement with any person
providing for the leasing by the Borrower or any subsidiary of
real or personal property which has been sold or transferred by
the Borrower or subsidiary to such person.
G. Limitation on Negative Pledge Clauses. Enter into any agreement
with any person other than the Bank which prohibits or limits the
ability of the Borrower or any of its subsidiaries to create or
permit to exist any lien on any of its property, assets or
revenues, whether now owned or hereafter acquired.
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H. Conflicting Agreements. Enter into any agreement containing any
provision which would be violated or breached by the performance
of the Borrower's obligations under this agreement.
I. Loans to Others. Make any loans to any person or entity, other
than loans to its Affiliates, in excess of $250,000.00.
J. Leverage Ratio. With respect to MSII, permit, as of each fiscal
quarter end, its ratio of total liabilities less Subordinated
Debt to Tangible Capital Funds to be greater than 2.00 to 1.00,
K. Capital Expenditures. With respect to MSII, permit, any of its
subsidiaries including Borrower, to make, capital expenditures in
excess $ 1,000,000.00 in any one fiscal year
L. Debt Service Coverage Ratio. With respect to MSII, permit as of
each fiscal quarter end, its ratio of net income, plus interest
expense, amortization expense and depreciation expense, plus
income taxes, minus Distributions, for the preceding full twelve
mont period to current maturities of long term debt, plus current
maturities of long term leases, plus interest expense, for the
same such twelve month period to be less than 1.10 to 1.00
beginning with the December 31, 2003 reporting period.
M. Liquidity. With respect to MSII, permit at any time its total of
unencumbered cash, and marketable securities, to be less than
$1,000,000.00.
N. Transactions with Affiliates. With respect to MSH, permit any of
its subsidiaries including Borrower, to enter into any
transaction or series of related transactions, whether or not in
the ordinary course of business, with any affiliate of MSII or
any of its subsidiaries, other than in the ordinary course of
business and on terms and conditions substantially as favorable
to MSII or such subsidiary as would reasonably be obtained by
MSII or such subsidiary at the time in a comparable arm's length
transaction with a person other than an affiliate.
0. Government Regulation. (1) Be or become subject at any time to
any law, regulation, or list of any government agency (including,
without limitation, the U.S. Office of Foreign Asset Control
list) that prohibits or limits Bank from making any advance or
extension of credit to Borrower or from otherwise conducting
business with Borrower, or (2) fail to provide documentary and
other evidence of Borrower's identity as may be requested by Bank
at any time to enable Bank to verify Borrower's identity or to
comply with any applicable law or regulation ,including, without
limitation, Section 326 of the USA Patriot Act of 2001,31 U.S.C.
Section 5318.
Representations by the Borrower. Each Borrower represents that: (a) the
execution and delivery of this agreement and the Notes, and the perfonnance of
the obligations they impose, do not violate any law, conflict with any agreement
by which it is bound, or require the consent or approval of any governmental
authority or other third party, (b) this agreement and the Notes are valid and
binding agreements, enforceable according to their terms, (c) all balance
sheets, profit and loss statements, and other financial statements and other
information furnished to the Bank in connection with the Liabilities are
accurate and fairly reflect the financial condition of the organizations and
persons to which they apply on their effective dates, including contingent
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liabilities of every type, which financial condition has not changed materially
and adversely since those dates, (d) no litigation, 1 claim, investigation,
administrative proceeding or similar action (including those for unpaid taxes)
against the Borrower is pending or threatened, and no other event has occurred
which may in any one case or in the aggregate materially adversely affect the
Borrower's financial condition an properties, other than litigation, claims, or
other events, if any, that have been disclosed to and acknowledged by the Bank
in writing or which is disclosed in Borrower's Form 10-K's or 10-Q's (e) all of
the Borrower's tax returns and reports that are or were required to be filed,
have been filed, and all taxes, assessments and other governmental charges have
been paid in full, except those presently being contested by the Borrower in
good faith and for which adequate reserves have been provided, (0 the Borrower
is not a "holding company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940,as amended, (g) the
Borrower is not a "holding company", or a "subsidiary company" of a "holding
company" or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, (h) there are no defenses or counterclaims, offsets or
adverse claims, demands or actions of any kind, personal or otherwise, that the
Borrower could assert with respect to this agreement or the Credit Facilities,
(i) the Borrower owns, or is licensed to use, all trademarks, trade names,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted, and 6) no part of the proceeds of the Credit
Facilities will be used for"purchasing" or "canying" any "margin stock" within
the respective meanings of each of the quoted terms under Regulation U of the
Board of Governors of the Federal Reserve System of the United States (the
"Board") as now and from time to time hereafter in effect or for any purpose
which violates the provisions of any regulations of the Board. Each Borrower,
other than a natural person, further represents that: (a) it is duly organized,
existing and in good standing pursuant to the laws under which it is organized,
and (b) the execution and delivery of this agreement and the Notes and the
performance of the obligations they impose (i) are within its powers, (ii) have
been duly authorized by all necessary action of its governing body, and (iii) do
not contravene the terms of its articles of incorporation or organization, its
by-laws, or any partnership, operating or other agreement governing its affairs.
7. Default Remedies. If any of the Credit Facilities are not paid at maturity,
whether by acceleration or otherwise, or if a default by anyone occurs under the
terms of this agreement, the Notes or any agreement related to the Credit
Facilities, then the Bank shall have all of the rights and remedies provided by
any law or agreement.
8. Miscellaneous.
8.1 Notice. Any notices and demands under or related to this document
shall be in writing and delivered to the intended party at its address
stated herein, and if to the Bank, at its main office if no other
address of the Bank is specified herein, by one of the following
means: (a) by hand, (b) by a nationally recognized overnight courier
service, or (c) by certified mail, postage prepaid, with return
receipt requested. Notice shall be deemed given: (a) upon receipt if
delivered by hand, (b) on the Delivery Day after the day of deposit
with a nationally recognized courier service, or (c) on the third
Delivery Day after the notice is deposited in the mail, "Delivery Day"
means a day other than a Saturday, a Sunday or any other day on which
national banking associations are authorized to be closed. Any party
may change its address for purposes of the receipt of notices and
demands by giving notice of such change in the mariner provided in
this provision.
8.2 No Waiver. No delay on the part of the Bank in the exercise of any
right or remedy waives that right or remedy. No single or partial
exercise by the Bank of any right or remedy precludes any other future
exercise of it or the exercise of any other right or remedy. No waiver
or indulgence by the Bank of any default is effective unless it is in
writing and signed by the Bank, nor shall a waiver on one occasion bar
or waive that right on any future occasion.
8.3 Integration. This agreement, the Notes, and any agreement related to
the Credit Facilities embody the entire agreement and understanding
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between the Borrower and the Bank and supersede all prior agreements
and understandings relating to their subject matter. If any one or
more of the obligations of the Borrower under this agreement or the
Notes is invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining obligations of
the Borrower shall not in any way be affected or impaired, and the
invalidity, illegality or unenforceability in one jurisdiction shall
not affect the validity, legality or enforceability of the obligations
of the Borrower under this agreement or the Notes in any other
jurisdiction.
8.4 Joint and Several Liability. Each Borrower, if more than one, is
jointly and severally liable.
8.5 Governing Law and Venue. This agreement is delivered in the State of
Texas and governed by Texas law (without giving effect to its laws of
conflicts). The Borrower agrees that any legal action or proceeding
with respect to any of its obligations under this agreement may be
brought by the Bank in any state or federal court located in the State
of Texas, as the Bank in its sole discretion may elect. By the
execution and delivery of this agreement, the Borrower submits to and
accepts, for itself and in respect of its property, generally and
unconditionally, the non-exclusive jurisdiction of those courts. The
Borrower waives any claim that the State of Texas is not a convenient
forum or the proper venue for any such suit, action or proceeding.
8.6 Captions. Section headings are for convenience of reference only and
do not affect the interpretation of this agreement.
8.7 Subsidiaries and Affiliates of the Borrower. To the extent the context
of any provisions of this agreement makes it appropriate, including
without limitation any representation, warranty or covenant, the word
"Borrower" as used in this agreement shall include all of the
Borrower's subsidiaries and affiliates. Notwithstanding the foregoing,
however, under no circumstances shall this agreement be construed to
require the Bank to make any loan or other financial accommodation to
any of the Borrower's subsidiaries or affiliates,
8.8 Survival of Representations and Warranties. The Borrower understands
and agrees that in extending the Credit Facilities, the Bank is
relying on all representations, warranties, and covenants made by the
Borrower in this agreement or in any certificate or other investment
delivered by the Borrower to the Bank under this agreement. The
Borrower further agrees that regardless of any investigation made by
the Bank, all such representations, warranties and covenants will
survive the making of the Credit Facilities and delivery to the Bank
of this agreement, shall be continuing in nature, and shall remain in
full force and effect until such time as the Borrower's indebtedness
to the Bank shall be paid in full.
8.9 Non-Liability of the Bank. The relationship between the Borrower and
the Bank created by this agreement is strictly a debtor and creditor
relationship and not fiduciary in nature, nor is the relationship to
be construed as creating any partnership or joint venture between the
Bank and the Borrower. The Borrower is exercising the Borrower's own
judgement with respect to the Borrower's business. All information
supplied to the Bank is for the Bank's protection only and no other
party is entitled to rely on such information. There is no duty for
Bank to review, inspect, supervise or inform the Borrower of any
matter with respect to the Borrower's business. The Bank and the
Borrower intend that the Bank may reasonably rely on all information
supplied by the Borrower to the Bank, together with all
representations and warranties given by the Borrower to the Bank,
without investigation or confirmation by the Bank and that any
investigation or failure to investigate will not diminish the Bank's
right to so rely.
8.10 Indemnification of the Bank. The Borrower agrees to indemnify, defend
and hold the Bank and BANK ONE CORPORATION, or any of its subsidiaries
or affiliates or their successors, and each of their respective
shareholders, directors, officers, employees and agents (collectively,
the "Indemnified Persons") harmless from any and all obligations,
claims, liabilities, losses, damages, penalties, fines, forfeitures,
actions, judgments, suits, costs, expenses and disbursements of any
kind or nature (including, without limitation, any Indemnified
Person's attorneys fees) (collectively, the "Claims") which may be
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imposed upon, incurred by or assessed against any Indemnified Person
(whether or not caused by any Indemnified Person's sole, concurrent,
or contributory negligence) arising out of or relating to this
agreement; the exercise of the rights and remedies granted under this
agreement (including, without limitation, the enforcement of this
agreement and the defense of any Indemnifed Person's action or
inaction in connection with this agreement); and in connection with
the Borrower's failure to perform all of the Borrower's obligations
under this agreement, except to the limited extent that the Claims
against any such Indemnified Person are proximately caused by such
Indemnified Person's willful misconduct. The indemnification provided
for in his section shall survive the termination of this agreement and
shall extend to and continue to benefit each individual or entity who
is or has at any time been an Indemnified Person. The Borrowers
indemnity obligations under this section shall not in any way be
affected by the presence or absence of covering insurance, or by the
amount of such insurance or by the failure or refbsal of any insurance
carrier to perform any obligation on its part under any insurance
policy or policies affecting the Borrower's assets or the Borrower's
business activities. Should any Claim be made or brought against any
Indemnified Person by reason of any event as to which the Borrower's
indemnification obligations apply, then, upon any Indemnified Person's
demand, the Borrower, at its sole cost and expense, shall defend such
Claim in the Borrower's name, if necessary, by the attorneys for the
Borrower's insurance carrier (if such Claim is covered by insurance),
or otherwise by such attorneys as any Indemnified Person shall
approve. Any Indemnified Person may also engage its own attorneys at
its reasonable discretion to defend the Borrower and to assist in its
defense and the Borrower agrees to pay the fees and disbursements of
such attorneys.
WITHOUT LIMITATION OF THE FOREGOING, IT IS THE INTENTION OF BORROWER AND
BORROWER AGREES THAT THE FOREGOING INDEMNITIES SHALL APPLY TO EACH INDEMNIFIED
PERSON WITH RESPECT TO CLAIMS, OBLIGATIONS, DAMAGES, LOSSES, COSTS,EXPENSES
(INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES), DEMANDS,
LIABILITIES,PENALTIES, FINES AND FORFEITURES WHICH IN WHOLE OR IN PART ARE
CAUSED BY OR ARISE OUT OF THE NEGLIGENCE OF SUCH (AND/OR ANY OTHER) INDEMNIFIED
PERSON.
8.11 Counterparts. This agreement may be executed in multiple counterparts,
each of which, when so executed, shall be deemed an original, but all
such counterparts, taken together, shall constitute one and the same
agreement.
8.12 Sole Discretion of the Bank. Whenever the Bank's consent or approval
is required under this agreement, the decision as to whether or not to
consent or approve shall be in the sole and exclusive discretion of
the Bank and the Bank's decision shall be final and conclusive.
8.13 Advice of Counsel. The Borrower acknowledges that it has been advised
by counsel, or had the opportunity to be advised by counsel, in the
negotiation, execution and delivery of this agreement and any
documents executed and Delivered in connection with the Credit
Facilities.
8.14 Recovery of Additional Costs. If the imposition of or any change in
any law, rule, regulation, or guideline, or the interpretation or
application of any thereof by any court or administrative or
governmental authority (including any request or policy not having the
force of law) shall impose, modiI~, or make applicable any taxes
(except federal, state, or local income or franchise taxes imposed on
the Bank), reserve requirements, capital adequacy requirements, or
other obligations which would (A) increase the cost to the Bank for
extending or maintaining the Credit Facilities, (B) reduce the amounts
payable to the Bank under the Credit Facilities, or (C) reduce the
rate of return on the Bank's capital as a consequence of the Banks
obligations with respect to the Credit Facilities, then the Borrower
agrees to pay the Bank such additional amounts as will compensate the
Bank therefor, within five (5) days after the Bank's written demand
for such payment. The Bank's demand shall be accompanied by an
explanation of such imposition or charge and a calculation in
reasonable detail of the additional amounts payable by the Borrower,
which explanation and calculations shall be conclusive in the absence
of manifest error.
8.15 Conflicting Terms. If this agreement is inconsistent with any
provision in any agreement related to the Credit Facilities, the Bank
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shall determine, in the Bank's sole and absolute discretion, which of
the provisions shall control any such inconsistency.
8.16 Expenses. The Borrower agrees to pay or reimburse the Bank for all its
out-of-pocket costs and expenses and reasonable attorneys' fees
incurred in connection with the development, preparation and execution
of, and in connection with the enforcement or preservation of any
fights under, this agreement, any amendment, supplement, or
modification thereto, and any other documents prepared in connection
herewith or therewith. These costs and expenses include without
limitation any costs or expenses incurred by the Bank in any
bankruptcy, reorganization, insolvency or other similar proceeding.
9. USA PATRIOT ACT NOTIFICATION. The following notification is provided to
Borrower pursuant to Section 326 of the USA Patriot Act of200l, 31 U.S.C.
Section 5318:
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the
government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person or entity that opens an account,
including any deposit account, treasury management account, loan, other
extension of credit, or other financial services product. What this means for
Borrower: When Borrower opens an account, if Borrower is an individual Bank will
ask for Borrowers name, taxpayer identification number, residential address,
date of birth, and other information that will allow Bank to identify Borrower,
and if Borrower is not an individual Bank will ask for Borrower's name, taxpayer
identification number, business address, and other information that will allow
Bank to identify Borrower. Bank may also ask, if Borrower is an individual to
see Borrower's driver's license or other identifying documents, and if Borrower
is not an individual to see Borrower's legal organizational documents or other
identifying documents.
10. WAIVER OF SPECIAL DAMAGES. THE BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM
THE BANK N ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
11. JURY WAIVER. THE BORROWER AND THE BANK HEREBY VOLUNTARILY, KNOWINGLY,
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) BETWEEN
THE BORROWER AND THE BANK ARISING OUT OF OR IN ANY WAY RELATED TO THIS DOCUMENT.
THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO PROVIDE THE FINANCING
DESCRIBED HEREIN.
Address(es) for Notices:
Borrower:
Eager Beaver Car Wash, Inc
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attn:______________________
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx Secretary
Printed Name Title
Date Signed: 3/11/04
Address for Notices:
Bank One, NA, with its main office in Chicago, IL
1301 5. Xxxxx Xx.
Xxxxxxxxx, XX 00000
Attn:______________________
By: /s/ Xxxx X. Xxxxxx
--------------------
Xxxx X. Xxxxxx First Vice President
Printed Name Title
Date Signed: 3/12/04
Xxxxxxxx nmyTxooooololo96l 129
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