1
EXHIBIT 10.8
2
TERM LOAN, REVOLVING CREDIT AND SECURITY AGREEMENT
BETWEEN
ABLE TELCOM HOLDING CORPORATION
"BORROWER"
TRANSPORTATION SAFETY CONTRACTORS OF VIRGINIA, INC.
TRANSPORTATION SAFETY CONTRACTORS, INC.
BCD COMMUNICATIONS, INC.
TIPCO, INC.
"GUARANTORS"
AND
SUNTRUST BANK, SOUTH FLORIDA, N.A.
"BANK"
DATED AS OF NOVEMBER 29, 1995
3
TABLE OF CONTENTS
Page
----
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Financial Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Valid Existence and Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Agreements, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Authorizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Location . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Labor Law Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Use and Location of Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Judgment Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Intent and Effect of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Guarantors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. The Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Revolving Loan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Equipment Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Term Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Notice and Manner of Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Interest Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Net Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Calculation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Special Loan Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Overdue Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Sales Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
i
4
Cross Collateralization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Yield Protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4. Commitment Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
5. Conditions Precedent to Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Conditions Precedent to Initial Advance . . . . . . . . . . . . . . . . . . . . . . . 18
Conditions Precedent to Each Advance . . . . . . . . . . . . . . . . . . . . . . . . . 20
6. Covenants of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Use of Loan Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Maintenance of Business and Properties . . . . . . . . . . . . . . . . . . . . . . . . 21
Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Merger, Sale, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Loans and Other Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Change in Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
No Change in Name, Offices; Removal of Collateral . . . . . . . . . . . . . . . . . . 24
No Sale, Leaseback . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Margin Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Payment of Taxes, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Compliance; Hazardous Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Funded Debt/Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Stockholder Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Withholding Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Depository Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Receiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
8. Security Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Security Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ii
5
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Entry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Deposits; Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Other Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Tangible Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Waiver of Marshalling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
No Waiver, Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
No Usury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Jurisdiction, Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Multiple Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
iii
6
TERM LOAN,
REVOLVING CREDIT AND SECURITY AGREEMENT
THIS AGREEMENT (the "Agreement"), dated as of November 29, 1995 between ABLE
TELCOM HOLDING CORPORATION, a Florida corporation (the "Borrower"),
TRANSPORTATION SAFETY CONTRACTORS, INC., a Florida corporation, TRANSPORTATION
SAFETY CONTRACTORS OF VIRGINIA, INC., a Virginia corporation, BCD
COMMUNICATIONS, INC., a Florida corporation and TIPCO, INC., a Florida
corporation (singularly a "Guarantor" and collectively the "Guarantors") and
SUNTRUST BANK, SOUTH FLORIDA, N.A., (the "Bank");
W I T N E S S E T H
In consideration of the premises and of the mutual covenants herein contained
and to induce the Bank to extend credit to the Borrower, the parties agree as
follows:
1. DEFINITIONS. In addition to terms defined elsewhere in this
Agreement, the following terms have the meanings indicated:
1.1 Defined Terms.
"Account" shall mean any account receivable, including any
rights of payment for goods sold or leased or for services rendered, which is
not evidenced by an Instrument or Chattel Paper, whether or not it has been
earned by performance, and in addition includes all property included in the
definition of "accounts" as used in the Code, together with any guaranties,
letters of credit and other security therefor.
"Account Debtor" shall mean a Person who is obligated under
any Account, Chattel Paper, General Intangible or Instrument.
"Advance" shall mean an advance of proceeds of a Loan to the
Borrower pursuant to this Agreement, on any given Advance Date.
"Advance Date" shall mean the date as of which an Advance is
made.
"Advance Request" shall mean the written request for an
Advance under the Line of Credit or the Equipment Loan as identified in Section
3.4 ("Notice and Manner of Borrowing") hereof.
"Affiliate" of a named Person shall mean (a) any Person owning
5% or more of the voting stock or rights of such named Person or of which the
named Person owns 5% or more of such voting stock or rights; (b) any Person
controlling, controlled by or under common control with such named Person; (c)
any officer or director of such
7
named Person or any Affiliates of the named Person; and (d) any family member
of the named Person or any Affiliate of such named Person.
"Business Day" shall mean a weekday on which commercial banks
are open for business in Palm Beach County, Florida.
"Chattel Paper" shall mean all writing or writings which
evidence both a monetary obligation and a security interest in or the lease of
specific goods and in addition includes all property included in the definition
of "chattel paper" as used in the Code, together with any guaranties, letters
of credit and other security therefor.
"Code" shall mean the Uniform Commercial Code, as in effect in
Florida from time to time.
"Collateral" means the property described in the Loan
Documents, and, if not described in the Loan Documents, the following property
of any Obligors, wherever located and whether now owned by an Obligor or
hereafter acquired: (a) all real property owned by any Obligor, including,
without limitation, any interest an Obligor may have in any real property
including, without limitation, any leasehold or easement interests; (b) all
Inventory; (c) all General Intangibles; (d) all Accounts and Chattel Paper and
any other instrument or intangible representing payment for goods or services;
(e) all Equipment; (f) all Instruments (g) any other collateral in which the
Bank may be hereafter granted a security interest or Lien; (h) all funds on
deposit with or under the control of the Bank or its agents or correspondents;
and (i) all parts, replacements, substitutions, profits, products and cash and
non-cash proceeds of any of the foregoing (including insurance proceeds payable
by reason of loss or damage thereto) in any form and wherever located.
Collateral shall include all written or electronically recorded records
relating to any such Collateral and other rights relating thereto.
"Debt" shall mean all liabilities of a Person as determined
under generally accepted accounting principles and all obligations which such
Person has guaranteed or endorsed or is otherwise secondarily or jointly
liable, and shall include, without limitation (a) all obligations for borrowed
money or purchased assets, (b) obligations secured by assets whether or not any
personal liability exists, (c) the capitalized amount of any capital or finance
lease obligations, (d) the unfunded portion of pension or benefit plans or
other similar liabilities, (e) obligations as a general partner, (f) contingent
obligations pursuant to guaranties, endorsements, letters of credit and other
secondary liabilities, and (g) obligations for deposits.
"Debt Service" means all scheduled principal and interest
payments due from Borrower during the period in question.
-2-
8
"Default Rate" shall mean the highest lawful rate of interest
per annum specified in any Note to apply after a default under such Note or, if
no such rate is specified, the highest rate of interest allowed by law.
"Eligible Accounts Receivable" means eighty percent (80%) of
the Accounts of Borrower and its wholly owned Subsidiaries which are (a)
payable by an entity organized and operating in the United States and (b) aged
ninety (90) days or less from billing date (or one hundred twenty (120) days or
less for accounts owed by governmental entities) provided that no Account of
any person or its affiliates shall be an Eligible Account Receivable if more
than ten percent (10%) of the Accounts owed by such person or its Affiliates
are aged more than ninety (90) days (or one hundred twenty (120) days for
governmental entities).
"Eligible Inventory" means fifty percent (50%) of the value of
Inventory consisting of finished goods owned by Borrower or its wholly owned
Subsidiaries of a kind usually and customarily sold by the Borrower or its
wholly owned Subsidiary and which is not, because of damage, age,
unmerchantability, obsolescence or any other condition or circumstance,
materially impaired in condition, value or marketability in the good faith
opinion of the Bank valued at the lower of (a) FIFO cost or (b) fair market
value as determined by Borrower pursuant to generally accepted accounting
principles and certified by Borrower in the monthly Inventory Reports. In no
event shall the Eligible Inventory exceed Two Million and no/100 Dollars
($2,000,000.00).
"Equipment" shall mean all furniture, fixtures, equipment,
motor vehicles, rolling stock and other tangible property of a Person of every
description, except Inventory and in addition includes all property included in
the definition of "equipment" as used in the Code.
"Equipment Facility" means the availability of credit for the
acquisition of New Equipment contemplated by Section 3.2 hereof.
"Equipment Loans" means the series of loans from Bank to
Borrower under the Equipment Facility.
"Equipment Notes" means the promissory notes to be given by
Borrower to Bank and evidencing the Equipment Loans which shall be in
substantially the form of the note attached hereto as Exhibit "1.1C".
"Event of Default" shall mean any event specified as such in
Section 7.1 hereof ("EVENTS OF DEFAULT"), provided that there shall have been
satisfied any requirement in connection with such event for the giving of
notice or the lapse of time, or
-3-
9
both; "Default" or "default" shall mean any of such events, whether or not any
such requirement for the giving of notice or the lapse of time or the happening
of any further condition, event or act shall have been satisfied.
"Funded Debt" means all indebtedness for money borrowed,
purchase money mortgages, capitalized leases, conditional sales contracts and
similar title retention debt instruments, including any current maturities of
such indebtedness, which by its terms matures more than one year from the date
of any calculation thereof and/or which is renewable or extendible at the
option of the obligor to a date beyond one year from such date. The
calculation of Funded Debt shall include all Funded Debt of the Borrower and
the Subsidiaries, plus all Funded Debt of other entities or persons, other than
subsidiaries, which has been guaranteed by the Borrower or any Subsidiary with
the exception of existing SunTrust loans guaranteed by the Borrower as of the
Closing Date. Funded Debt shall also include the redemption amount with
respect to any stock of the Borrower or the Subsidiaries required to be
redeemed within the next twelve months.
"General Intangibles" shall mean all intangible personal
property (including things in action) except Accounts, Chattel Paper and
Instruments, including all contract rights, copyrights, trademarks, trade
names, service marks, patents, patent drawings, designs, formulas, rights to a
Person's name itself, customer lists, rights to all prepaid expenses, marketing
expenses, rights to receive future contracts, fees, commissions and orders
relating in any respect to any business of a Person, all licenses and permits,
all computer programs and other software owned by a Person, or which a Person
has the right to use, and all rights for breach of warranty or other claims for
funds to which a Person may be entitled, and in addition includes all property
included in the definition of "general intangibles" as used in the Code.
"Guarantor" shall mean all Subsidiaries of Borrower and any
other Person hereafter guaranteeing, endorsing or otherwise becoming liable for
any Indebtedness. On the date hereof the Guarantors are Transportation Safety
Contractors of Virginia, Inc., Transportation Safety, Inc., BCD Communications,
Inc. and Tipco, Inc.
"Guaranty Agreement" shall mean any guaranty instrument now or
hereafter executed and delivered by any Guarantor to the Bank, as it may be
modified.
"Indebtedness" shall mean all obligations now or hereafter
owed to the Bank by an Obligor, including, without limitation, amounts owed or
to be owed under the terms of the Loan Documents, or arising out of the
transactions described therein, including, without limitation, the Loans, sums
advanced to pay overdrafts on anyaccount maintained by an Obligor with the
Bank, reimbursement obligations for outstanding letters of credit or banker's
acceptances issued to the account of an Obligor, amounts paid
-4-
10
by the Bank under letters of credit or drafts accepted by the Bank for the
account of an Obligor, together with all interest accruing thereon, all fees,
all costs of collection, attorneys' fees and expenses of or advances by the
Bank which the Bank pays or incurs in discharge of obligations of an Obligor or
to repossess, protect, preserve, store or dispose of any Collateral, whether
such amounts are now due or hereafter become due, direct or indirect and
whether such amounts due are from time to time reduced or entirely extinguished
and thereafter re-incurred.
"Instruments" means all promissory notes, letters of credit,
guarantees, securities, and other items constituting "instruments" (as defined
in the Code) owned or held by an Obligor, whether or not in negotiable form,
and all collateral and other security therefor, whether now or hereafter
existing or acquired, and all proceeds thereof and all substitutions and
replacements therefor.
"Interest Period" shall mean a calendar month commencing on
the first day of the month and ending on the last day of month provided,
however, that if, any Interest Period would otherwise commence or expire on a
day which is not a Business Day, the Interest Period shall commence or expire,
as the case may be, on the next succeeding Business Day.
"Inventory" means all goods, merchandise and other personal
property of a Person which is held for sale or lease or furnished or to be
furnished under a contract for services or raw materials, and all work in
process and materials used or consumed or to be used or consumed in a Person's
business, and in addition, includes all property included in the definition of
"inventory" as used in the Code.
"LIBOR" shall mean, for any Interest Period, the one month
LIBOR quoted by the Wall Street Journal on the first day of the Interest Period
at which deposits in U.S. dollars are available in the London interbank
eurodollar market in London, England (rounded up, if necessary, to the nearest
1/32 of 1%).
"LIBOR Loans" shall mean, at any time, that portion or
portions of the Loans then bearing interest at the LIBOR Rate.
"LIBOR Rate" shall mean the applicable LIBOR plus two and
seven tenths percent (2.7%).
"Lien" (collectively "Liens") shall mean any mortgage, pledge,
statutory lien or other lien arising by operation of law, security interest,
trust arrangement, financing lease, collateral assignment or other encumbrance,
or any segregation of assets or revenues (whether or not constituting a
security interest) with respect to any present or
-5-
11
future assets, revenues or rights to the receipt of income of the Person
referred to in the context in which the term is used.
"Line of Credit" means the loan from Bank to Borrower
evidenced by the Line of Credit Note.
"Line of Credit Note" means that certain promissory note dated
of even date herewith in the original principal amount of up to $6,000,000
given by Borrower to Bank.
"Loans" shall mean the Line of Credit, the Equipment Loans,
the Term A Loan and the Term B Loan.
"Loan Documents" shall mean this Agreement, any other Security
Agreement, the Notes, any Guaranty Agreements, the Advance Requests, UCC-1
financing statements and all other documents and instruments now or hereafter
evidencing, describing, guaranteeing or securing the Indebtedness contemplated
hereby or delivered in connection herewith, as they may be modified.
"Maturity Date" means, with respect to each Loan, the Maturity
Date for such Loan as provided in the Note evidencing such Loan.
"Maximum Equipment Loans Amount" means the lesser of (a) Two
Million Five Hundred Thousand and no/100 Dollars ($2,500,000.00) or (b) eighty
percent (80%) of the actual cost of New Equipment as evidenced by copies of
invoices supplied to Bank.
"Maximum Line of Credit Amount" shall mean the lesser of (a)
Six Million and no/100 Dollars ($6,000,000.00) or (b) the sum of the Eligible
Accounts Receivable and the Eligible Inventory.
"New Equipment" means Equipment acquired by Borrower or a
Subsidiary wholly owned by Borrower after the date of this Agreement.
"Notes" shall mean the Line of Credit Note, the Equipment
Notes, the Term A Note, the Term B Note and any other promissory note now or
hereafter evidencing any Indebtedness, and all modifications, extensions and
renewals thereof.
"Obligors" means the Borrower and the Guarantors.
"Permitted Debt" shall mean (a) the Indebtedness; and (b) any
other Debt listed on Exhibit 1.1D hereto (if any) and any extensions, renewals,
replacements, modifications and refundings of any such Debt if, and to the
extent, permitted by Exhibit 1.1D; provided, however, that the principal amount
of such Debt may not be increased
-6-
12
from the amount shown as outstanding on such exhibit; and (c) such other Debt
as the Bank may consent to in writing from time to time.
"Permitted Liens" shall mean (a) Liens securing the
Indebtedness; (b) Liens for taxes and other statutory Liens, landlord's Liens
and similar Liens arising out of operation of law (provided they are
subordinate to the Bank's Liens on Collateral) so long as the obligations
secured thereby are not past due or are being contested as permitted herein;
(c) Liens described on Exhibit 1.1E hereto (if any), provided, however, that no
debt not now secured by such Liens shall become secured by such Liens
hereafter; and (d) such other Liens as the Bank may consent to in writing from
time to time.
"Person" shall mean any natural person, corporation,
unincorporated organization, trust, joint-stock company, joint venture,
association, company, limited or general partnership, any government, or any
agency or political subdivision of any government.
"Prime Rate" shall mean the annual interest rate announced by
SunTrust Banks of Florida, Inc., from time to time, as its Prime Rate (which
interest rate is only a bench xxxx, is purely discretionary and is not
necessarily the best or lowest rate charged borrowing customers of any
subsidiary bank of SunTrust Banks of Florida, Inc.). A change in the Prime
Rate shall become effective from the beginning of the day on which such change
is determined by the Bank.
"Security Agreement" shall mean this Agreement as it relates
to a security interest in the Collateral, and any other mortgage, security
agreement or similar instrument now or hereafter executed by an Obligor or
other Person granting the Bank a security interest in any Collateral to secure
the Indebtedness.
"Special Loan Account" shall mean the demand deposit account
established pursuant to Section 3.8 hereof ("Special Loan Account").
"Stockholder Loans" means the loans described as Notes Payable
to Shareholders/Officers on Borrower's July 31, 1995 financial statements and
on Exhibit 1.1F hereto.
"Subsidiary" shall mean any corporation, partnership or other
Person in which the Borrower, now or hereafter, directly or indirectly, owns
more than fifty percent (50%) of the stock, capital or income interests, or
other beneficial interests, or which is effectively controlled by the Borrower.
"Tangible Net Worth" means the stockholders equity in Borrower
as reported in Borrowers financial statements less any intangible assets.
-7-
13
"Term A Loan" means the loan from Bank to Borrower evidenced
by the Term A Note.
"Term A Note" means that certain promissory note dated of even
date herewith in the original principal amount of $2,750,000 given by Borrower
to Bank.
"Term B Loan" means the loan from Bank to Borrower evidenced
by the Term B Note.
"Term B Note" means the promissory note dated of even date
herewith from Borrower to Bank in the original principal amount of $1,250,000.
1.2 Financial Terms. All financial terms used herein shall
have the meanings assigned to them under generally accepted accounting
principles unless another meanings shall be specified.
2. REPRESENTATIONS AND WARRANTIES. In order to induce the Bank
to enter into this Agreement and to make the Loans provided for herein,
Obligors make the following representations and warranties, all of which shall
survive the execution and delivery of the Loan Documents. Unless otherwise
specified, such representations and warranties shall be deemed made as of the
date hereof and as of the Advance Date of any Advance by the Bank to the
Borrower:
2.1 Valid Existence and Power. The Borrower is a
corporation and each Subsidiary is a corporation or other entity duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization and is duly qualified or licensed to transact
business in all places where the failure to be so qualified would have a
material adverse effect on it. Each of the Obligors and each other Person
which is a party to any Loan Documents (other than the Bank) has the power to
make and perform the Loan Documents executed by it and all such instruments
will constitute the legal, valid and binding obligations of such Person,
enforceable in accordance with their respective terms, subject only to
bankruptcy and similar laws affecting creditors' rights generally.
2.2 Authority. The execution, delivery and performance
thereof by Obligors and each other Person (other than the Bank) executing any
Loan Document have been duly authorized by all necessary action of each Obligor
and its shareholders and by such other Person, and do not and will not violate
any provision of law or regulation, or any writ, order or decree of any court
or governmental or regulatory authority or agency or any provision of the
governing instruments of such Person, and do not and will not, with the passage
of time or the giving of notice, result in a breach of, or constitute a default
or require any consent under, or result in the creation of any Lien upon any
-8-
14
property or assets of such Person pursuant to, any law, regulation, instrument
or agreement to which any such Person is a party or by which any such Person or
its respective properties may be subject, bound or affected other than the Loan
Documents.
2.3 Financial Condition. Other than as disclosed in the
projected consolidated financial results for the Obligors' fiscal year ending
October 31, 1995 delivered to the Bank on or prior to the date hereof, the
Obligors have no direct or contingent obligations or liabilities (including any
guarantees or leases) or any material unrealized or anticipated losses from any
commitments except as described on Exhibit 2.3 (if any). Obligors are not
aware of any material adverse fact (other than facts which are generally
available to the public and not particular to the Obligors, such as general
economic or industry trends) concerning the conditions or future prospects of
the Obligors which has not been fully disclosed to the Bank, including any
material adverse change in the operations or financial condition of Obligors
since the date of the most recent financial statements delivered to the Bank.
2.4 Litigation. Except as disclosed on Exhibit 2.4 (if
any), there are no suits or proceedings pending, or to the knowledge of the
Obligors threatened, before any court or by or before any governmental or
regulatory authority, commission, bureau of agency or public regulatory body
against or affecting the Obligors or their assets, which if adversely
determined would have a material adverse effect on the financial condition or
business of the Obligors.
2.5 Agreements, Etc. None of Obligors is a party to any
agreement or instrument or subject to any court order, governmental decree or
any charter or other corporate restriction, adversely affecting its business,
properties or assets, operations or condition (financial or otherwise) nor is
any Obligor in default in the performance, observance or fulfillment of any of
the obligations, covenants or conditions contained in any agreement or
instrument to which it is a party, or any law, regulation, decree, order or the
like.
2.6 Authorizations. All authorizations, consents,
approvals and licenses required under applicable law or regulation for the
ownership or operation of the property owned or operated by any Obligor or for
the conduct of any business in which it is engaged have been duly issued and
are in full force and effect, and it is not in default, nor has any event
occurred which with the passage of time or the giving of notice, or both, would
constitute a default, under any of the terms or provisions of any part thereof,
or under any order, decree, ruling, regulation, closing agreement or other
decision or instrument of any governmental commission, bureau or other
administrative agency or public regulatory body having jurisdiction over such
person, which default would have a material adverse effect on such Person.
Except as noted herein, no approval, consent or
-9-
15
authorization of, or filing or registration with, any governmental commission,
bureau or other regulatory authority or agency is required with respect to the
execution, delivery or performance of any Loan Document.
2.7 Title. One of the Obligors has good title to all of
the assets shown in the consolidated financial statements of Obligors free and
clear of all Liens, except Permitted Liens. One of the Obligor's alone has
full ownership rights in all Collateral.
2.8 Collateral. The security interests granted to the
Bank herein and pursuant to any other Loan Document (a) constitute and, as to
subsequently acquired property included in the Collateral will constitute,
security interests under Florida law (including the Code) entitled to all of
the rights, benefits and priorities provided by Florida law (including the
Code) and the Loan Documents (b) are, and as to subsequently acquired
Collateral will be fully perfected, superior and prior to the rights of all
third persons, now existing or hereafter arising, subject only to Permitted
Liens.
2.9 Location. The chief executive office of the Obligors
where the Obligors' business records are located is the address designated for
notices in Section 9.4 ("Notices") and the Obligors' other places of business
are listed on Exhibit 2.9 attached hereto.
2.10 Taxes. Obligors have filed all federal and state
income and other tax returns which, to the best knowledge of the Obligors, are
required to be filed, and have paid all taxes as shown on said returns and all
taxes, including ad valorem taxes, shown on all assessments received by it to
the extent that such taxes have become due. Obligors are not subject to any
federal, state or local tax Liens nor has such Person received any notice of
deficiency or other official notice to pay any taxes. Each of Obligors have
paid all sales and excise taxes payable by it.
2.11 Withholding Taxes. Each of the Obligors has paid all
withholding, FICA and other payments required by federal, state or local
governments with respect to any wages paid to employees.
2.12 Labor Law Matters. No goods or services have been or
will be produced by the Obligors in violation of any applicable labor laws or
regulations or any collective bargaining agreement or other labor agreements or
in violation of any minimum wage, wage-and-hour or other similar laws or
regulations.
2.13 Accounts. Each Account, Instrument, Chattel Paper
and other writing constituting any portion of the Collateral is (a) genuine and
enforceable in accordance with its terms except for such limits thereon arising
from bankruptcy and
-10-
16
similar laws relating to creditors' rights; (b) to the best of the Obligor's
knowledge are not subject to any defense, setoff, claim or counterclaim of a
material nature against the Obligors except as to which the Obligors have
notified the Bank in writing; and (c) not subject to any other circumstances
that would impair the validity, enforceability or amount of such Collateral
except as to which the Obligors have notified the Bank in writing.
2.14 Use and Location of Collateral. The Collateral is
located only, and shall at all times be kept and maintained only, at the
Obligors' location or locations as described herein.
2.15 Judgment Liens. Neither Obligors, nor any of their
assets, are subject to any unpaid judgments (whether or not stayed) or any
judgment liens in any jurisdiction.
2.16 Intent and Effect of Transactions. This Agreement
and the transactions contemplated herein (a) are not made or incurred with
intent to hinder, delay or defraud any person to whom the Obligors have been,
are now, or may hereafter become indebted; (b) do not render any Obligor
insolvent nor is the Obligor insolvent on the date of this Agreement; (c) do
not leave the Obligor with an unreasonably small capital with which to engage
in its business or in any business or transaction in which it intends to
engage; and (d) are not entered into with the intent to incur, or with the
belief that any Obligor would incur, debts that would be beyond its ability to
pay as such debts mature.
2.17 Subsidiaries. All of the Subsidiaries are listed on
Exhibit 2.17 attached hereto.
2.18 Hazardous Materials. The Obligors' and Subsidiaries'
property and improvements thereon have not in the past been used, are not
presently being used, and will not in the future be used for, nor do any of
such persons engage in, the handling, storage, manufacture, disposition,
processing, transportation, use or disposal of hazardous or toxic materials
other than vehicle fuel and lubricants used in the ordinary course of the
operation of such person's business, all of which are stored, applied, disposed
of and otherwise handled in accordance with applicable laws, rules and
regulations.
2.19 ERISA. Obligors have no pension, profit-sharing or
other benefit plan subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA") or the Obligors have furnished to the Bank true and
complete copies of the latest annual report required to be filed pursuant to
Section 104 of ERISA, with respect to each employee benefit plan or other plan
maintained for employees of the Obligors and
-11-
17
covered by Title IV of ERISA (a "Plan"), and no Termination Event (as
hereinafter defined) with respect to any Plan has occurred and is continuing.
For the purposes of this Agreement, a "Termination Event" shall mean a
"reportable event" as defined in Section 4043(b) of ERISA ("Reportable Event"),
or the filing of a notice of intent to terminate under Section 4041 of ERISA.
Obligors have no unfunded liability with respect to any such plan.
2.20 Guarantors. Each of the Guarantors will derive
substantial financial benefit from the making of the Loans to Borrower by
reason of the interrelation of businesses of the Obligors.
3. The Loans
3.1 Line of Credit. The Bank may from time to time lend
to the Borrower under the Line of Credit principal amounts for working capital
to be used in the operation of the Borrower's or a Subsidiary's business. The
Line of Credit Note shall evidence the outstanding principal balance of the
Line of Credit, as it may change from time to time. Advances under the Line of
Credit shall be subject to the following terms:
(a) The Borrower shall not request and the Bank will not
be required to make or consider requests for Advances of the Line of Credit
after February 28, 1997 provided that the Bank may in its discretion extend
such date in writing and further provided that the repayment obligations of the
Borrower for Advances of the Line of Credit made by the Bank after such date
(as it may be extended) shall be binding on the Borrower and any Guarantor or
other persons liable for any Indebtedness to the same extent as obligations
with respect to Advances made prior to such date.
(b) Should there occur any overdraft of any deposit
account maintained by the Borrower with the Bank, the Bank may, at its option,
disburse funds (whether or not in excess of the Maximum Line of Credit Amount)
to eliminate such overdraft and such disbursement shall be deemed an Advance of
Line of Credit proceeds hereunder entitled to all of the benefits of the Loan
Documents. Nothing herein shall be deemed an authorization of or consent to
the creation of an overdraft in any account or create any obligations on the
part of the Bank to fund such overdraft;
(c) The outstanding balance of the Line of Credit may
increase and decrease from time to time, and Advances thereunder may be repaid
and re-borrowed, but the total of Advances outstanding at any one time under
the Line of Credit shall never exceed the Maximum Line of Credit Amount unless
Bank, in its sole discretion, agrees to allow the outstanding Advances to
exceed the Maximum Line of Credit Amount. The Borrower shall immediately pay
to the Bank any amount by which the Line of Credit
-12-
18
exceeds the Maximum Line of Credit Amount. The Bank may, in its discretion,
make, or permit to remain outstanding, Advances to the Borrower in excess of
the Maximum Line of Credit Amount and all such amounts shall be part of the
Line of Credit and Indebtedness, shall bear interest as provided in the Line of
Credit Note, shall be payable on demand and shall be entitled to all rights and
security provided for herein and in all other Loan Documents.
(d) Advances under the Line of Credit may not be
requested more often than once a week.
3.2 Equipment Facility. The Bank may lend to the
Borrower under the Equipment Facility principal amounts for the purchase of New
Equipment by Borrower or its wholly owned Subsidiaries. Advances of Equipment
Loans shall be subject to the following terms:
(a) The aggregate principal amount of the Equipment Loans
advanced over the term of the Equipment Facility shall not exceed the Maximum
Equipment Loans Amount. Amounts borrowed and repaid may not be reborrowed as
the Equipment Loans are not made pursuant to a revolving credit facility.
(b) The Borrower shall not request and the Bank will not
be required to make or consider requests for Advances of the Equipment Facility
after February 28, 1997 provided that the Bank may in its discretion extend
such date in writing and further provided that the repayment obligations of the
Borrower for Advances of the Equipment Loans made by the Bank after such date
(as it may be extended) shall be binding on the Borrower and any Guarantor or
other persons liable for any Indebtedness to the same extent as obligations
with respect to Advances made prior to such date.
(c) Principal and interest under each Equipment Loan
shall be payable pursuant to a separate amortization schedule consistent with
the Bank's then current policy for loans secured by equipment of the type of
the New Equipment purchased with such Equipment Loan as evidenced by a separate
Equipment Note to be executed at the time of each Advance under the Equipment
Facility.
(d) Equipment Loans may not be requested more often than
once a month.
3.3 Term Loans. On the date of this Agreement, Bank has
fully funded the Term A Loan and the Term B Loan to Borrower as evidenced by
the Term A Note and the Term B Note.
-13-
19
3.4 Notice and Manner of Borrowing. Unless another
satisfactory procedure for disbursements is agreed upon in writing by the
parties, the following procedure will be used for disbursement of proceeds of
the Line of Credit and the Equipment Loans. The Borrower shall deliver a
written and signed Advance Request to the Bank not later than 12:00 noon,
prevailing Eastern time, on the Business Day prior to the proposed Advance
Date, in the form attached hereto as Exhibit 3.4(a) for Advances under the Line
of Credit and Exhibit 3.4(b) for Advances under the Equipment Loans, and a
reconciliation from the previous Advance Request (or monthly report),
specifying the proposed Advance Date (which shall be a Business Day), the
interest rate elected for such Advance (if applicable) and the amount of the
proposed Advance, and providing such other information as the Bank may
reasonably require.
3.5 Interest Rate. The outstanding principal balance of
each of the Loans outstanding from time to time shall accrue interest at the
Prime Rate unless Borrower has elected to have a Loan or portion of a Loan be
treated as a LIBOR Loan in which event such LIBOR Loan shall accrue interest at
the LIBOR Rate. Borrower's designation of each LIBOR Loan shall be subject to
the following conditions:
(a) Not less than two (2) Business Days prior to the date
on which Borrower proposes to have a portion of the Loans converted to a LIBOR
Loan, Borrower must provide Bank written notice specifying the amount of the
LIBOR Loan which shall be in a principal amount equal to $100,000 or multiples
of $100,000 and the date on which the new portion of the Loans is to be
converted to a LIBOR Loan.
(b) From and after the date designated for such LIBOR
Loan the principal amount thereof shall bear interest at the LIBOR Rate until
Borrower gives Bank at least two Business Days prior written notice of its
election to have the principal amount of such LIBOR Loan bear interest at the
Prime Rate. In no event shall the interest rate on any LIBOR Loan be changed
to the Prime Rate except on the first day of an Interest Period.
(c) Borrower shall have no right to designate a LIBOR
Loan if a Default or an Event of Default has occurred and is continuing.
(d) Any notice delivered by the Borrower to the Bank as
provided in this Section 3.5 shall be irrevocable and binding upon the Borrower
upon receipt by the Bank.
(e) If at any time the Bank shall determine that the
making or continuation of the LIBOR Rate has become unlawful or impracticable
as a result of its good-faith compliance with any law, rule, regulation,
guideline, policy, order, judgment or decree, whether or not having the force
of law, issued after or as of the date hereof by
-14-
20
any governmental authority having jurisdiction over the Bank (which
determination by the Bank, absent manifest error, shall be final and
conclusive), the Bank shall transmit notice to the Borrower and (i) the Bank's
obligations to continue the LIBOR Rate hereunder shall promptly terminate and
(ii) any Loans then accruing interest at the LIBOR Rate shall immediately
accrue interest at the Prime Rate.
3.6 Net Payments. All payments by the Borrower under
this Agreement and the Notes shall be made without setoff or counterclaim and
in such amounts as may be necessary in order that all payments, after deduction
or withholding for or on account of any present or future taxes, levies,
imposts, duties or other charges of whatsoever nature imposed by any government
or any political subdivision or taxing authority thereof (collectively the
"Taxes"), shall not be less than the amounts otherwise specified to be paid
under this Agreement and the Notes. Notwithstanding anything to the contrary
contained in this Section 3.6, the Borrower shall not be liable for the payment
of any tax on or measured by net income or portion thereof of the Bank pursuant
to the income tax laws of the United States, the State of Florida or the
jurisdiction where the office making or carrying the Loans is located. The
Borrower shall pay all Taxes when due (and indemnify the Bank against any
liability therefor) and shall promptly (and in any event not later than 30 days
thereafter) furnish to the Bank any certificates, receipts and other documents
which may be required (in the judgment of the Bank) to establish any tax credit
to which that Bank may be entitled. The obligations of the Borrower under this
Section 3.6 shall survive the termination of this Agreement and the repayment
of the Loans, but such obligations shall terminate as to any claim or liability
for which the Borrower is responsible pursuant to this Section 3.6 on the same
date that any such claim or liability is barred by any applicable statute of
limitations.
3.7 Calculation of Interest. All interest under the
Notes or hereunder shall be calculated on the basis of a 360-day year for the
actual number of days elapsed in an interest period (actual/360 method), unless
the Bank shall otherwise elect.
3.8 Special Loan Account. Upon the occurrence of an
Event of Default and demand by Bank, the Borrower shall establish and maintain
with the Bank, during the term of the Loans, a demand deposit account (the
"Special Loan Account"). From and after occurrence of an Event of Default, the
Borrower shall deposit in the Special Loan Account, as received, all proceeds
from the sale of Inventory and collection of Accounts and other Collateral in
the form of checks, drafts, cash or the like, and all such proceeds shall
constitute Collateral. Upon receipt of written instructions from the Bank
after an Event of Default, the Borrower shall direct (by instruction on
invoices and otherwise) all Account Debtors to make payments to a designated
post office box under the control of the Bank, which payments shall be
deposited directly into the Special Loan Account. The
-15-
21
Borrower shall pay the Bank's reasonable fees and charges in connection with
such lock-box arrangement.
3.9 Prepayment. Borrower shall have the right to prepay
any Loan, in whole or in part; provided that no such prepayment shall be made
with respect to any portion of the Loan then bearing interest at a LIBOR Rate
unless the Borrower also complies with the provisions of this Section. Each
notice of prepayment shall specify the prepayment date and the principal
amount to be prepaid. All prepayments of a Loan shall include accrued interest
upon the principal amount being prepaid to the date of the payment. The
Borrower shall indemnify the Bank for all losses and any direct or indirect
costs, including the costs of re-employment of funds at rates lower than the
costs to the Bank of such funds and the costs paid by the Bank to acquire funds
to carry a LIBOR Loan, which the Bank may sustain, as a consequence of:
(a) the occurrence of any Event of Default under this
Agreement which results in the acceleration of any portion of the Loan bearing
interest at the LIBOR Rate; or
(b) the prepayment by the Borrower of any principal
amount of the Loan bearing interest at the LIBOR Rate prior to the expiration
of the applicable Interest Period.
The Bank shall submit a request for indemnification in writing
to the Borrower promptly following the occurrence of the event which formed the
basis for the request for indemnification, which request shall reasonably
detail the basis for such request. Such notice as to any additional amount or
amounts required to be paid to the Bank shall be calculated by the Bank in good
faith and, in the absence of manifest error, shall be final and conclusive.
The Borrower shall pay upon demand the additional amount or amounts requested
by the Bank pursuant to this Section.
3.10 Overdue Amounts. Any payments not made as and when
due shall bear interest from the date due until paid at the Default Rate.
3.11 Sales Tax. The Borrower shall notify the Bank if any
Account includes any sales or other similar tax and the Bank may at Bank's
option either disburse amounts to Borrower from the Special Loan Accounts for
payment to the taxing authority if the Special Loan Account contains sufficient
amounts to pay or remit any such taxes directly to the taxing authority and
make Advances or charge the Special Loan Account therefor. In no event shall
the Bank be liable for any such taxes.
-16-
22
3.12 Cross Collateralization. Borrower agrees that,
notwithstanding the provisions of any of the Loan Documents and further
notwithstanding the existence of the separate Notes or any other separate
expression of or security for the Indebtedness, all of the Collateral, is
encumbered as security for all of the Indebtedness by this Agreement or by
other Loan Documents. It is the intention of Borrower and Bank that the liens
and security interests created by the Loan Documents encumber all of the
Collateral to secure all of the Indebtedness. Bank shall have the right to
proceed against any of the Collateral to collect any or all of the Indebtedness
in such order as Bank shall deem proper. Bank shall not be obligated to
proceed against or to release any particular portion of the Collateral because
the Collateral is described in one of the Loan Documents creating a lien or
security interest but not in others.
3.13 Yield Protection. In the event that after the date
hereof any change occurs in an applicable law, regulation, treaty or directive
or interpretation thereof by any authority charged with the administration or
interpretation thereof, or any condition is imposed by any authority or any
change occurs in any condition imposed by any authority on or prior to the date
hereof, which:
(a) subjects the Bank to any tax, duties or other
charges, or changes the basis of taxation of payments to the Bank on account of
principal of or interest on the principal of the Loan by virtue of the LIBOR
Rate or Prime Rate or imposes any fees in respect of other amounts payable to
the Bank hereunder, bearing interest at the LIBOR Rate or Prime Rate (other
than any change in the rate of tax based solely on the overall net income of
the Bank imposed by either (i) the United States; or (ii) the State of Florida;
or (iii) the jurisdiction where the office making the Loan or holding the Notes
is located); or
(b) imposes, modifies or determines to be applicable any
reserve, deposit or similar requirements against any assets held by, deposits
with or for the account of, or loans or commitments by, any office of the Bank
in connection with a Loan bearing interest at a LIBOR Rate or Prime Rate to the
extent the amount of which exceeds, or was not applicable at the time of the
execution of this Agreement; or
(c) imposes upon the Bank any other condition with
respect to the LIBOR Rate or the Prime Rate or the Bank's obligation to allow a
LIBOR Rate or Prime Rate hereunder; which, as a result thereof, (i) increases
the cost to the Bank of permitting or maintaining the LIBOR Rate or Prime Rate,
or (ii) reduces the net amount of any payment received by the Bank in respect
of the LIBOR Rate or Prime Rate (whether of principal, interest, commitment
fees or otherwise); or (iii) requires the Bank to make any payment on or
calculated by reference to the gross amount of any sum received by it in
-17-
23
respect of the LIBOR Rate or Prime Rate, in each case by an amount which the
Bank in its sole judgment deems material.
Then and in any such case the Borrower shall pay to the Bank
on demand such amount or amounts as will compensate the Bank for any increased
cost, deduction or payment actually incurred or made by the Bank. Bank shall
notify Borrower of the imposition of such tax, duty, charge, reserve,
requirement or condition within ninety (90) days after the same is imposed and
becomes applicable to the Loans or any Indebtedness pursuant to this Agreement.
The demand for payment made by the Bank shall state the subjection or change
which has occurred or the reserve or deposit requirements or other conditions
which have been imposed on the Bank or the request, direction, or requirement
with which it has complied, together with the date thereof, the amount of
such cost, reduction or payment and the way in which such amount has been
calculated in reasonable detail. The amounts payable pursuant to this Section
shall be calculated by the Bank in good faith, and, in the absence of manifest
error, be conclusive evidence of the amount thereof.
The protection of this Section shall be available to the Bank
regardless of any possible contention of invalidity or inapplicability of the
relevant law, regulation, treaty, directive, condition or interpretation
thereof. In the event the Borrower pays to the Bank the amount necessary to
compensate the Bank for any charge, deduction or payment incurred or made by
the Bank as provided in this Section and such charge, deduction or payment or
any part thereof is subsequently returned to the Bank as a result of the final
determination of the invalidity or inapplicability of the relevant law,
regulation, treaty, directive or condition, then the Bank shall remit to the
Borrower the amount paid by the Borrower which has actually be returned to the
Bank, less any costs and expenses incurred by the Bank in connection with such
governmental regulation or any challenge made by the Bank with respect to its
validity or applicability.
4. Commitment Fees. Borrower shall pay Bank a commitment fee of
three eighths of one percent (3/8%) of the principal amounts of each Advance
under the Equipment Facility payable on the date of such Advance.
5. Conditions Precedent to Borrowing. Prior to any disbursement
of the proceeds of any Loan, the following conditions shall have been
satisfied, in the sole opinion of the Bank and its counsel:
5.1 Conditions Precedent to Initial Advance. In addition
to any other requirement set forth in this Agreement, the Bank will not make a
disbursement of any portion of any Loan unless and until the following
conditions shall have been satisfied:
-18-
24
(a) Loan Documents. The Borrower and each other party to
any Loan Documents, as applicable, shall have executed and delivered this
Agreement, the Notes, and other Loan Documents required by Bank, all in form
and substance reasonably satisfactory to the Bank.
(b) Supporting Documents. The Borrower shall cause to be
delivered to the Bank the following documents:
(i) A copy of the governing instruments of the
Borrower and each Guarantor and a good
standing certificate of the Borrower and each
Guarantor certified by the appropriate
official of the State of Florida and
(ii) Incumbency certificates and certified
resolutions of the boards of directors (or
other appropriate Persons) of the Borrower
and each other Person executing any Loan
Documents authorizing the execution, delivery
and performance of the Loan Documents; and
(c) UCC Searches. UCC-11 searches and other Lien
searches showing no existing security interests in or Liens on the Collateral
which is personal property other than the security interests of the Bank.
(d) Opinion of Obligors' Counsel: Obligors shall cause
to be addressed and delivered to Bank an opinion of counsel for Obligors, in
form and content reasonably satisfactory to Bank.
(e) Insurance. The Borrower shall have delivered to the
Bank satisfactory evidence of insurance meeting the requirements of Section 6.3
("Insurance").
(f) Perfection of Liens. The UCC-1 financing statements
and, if applicable, certificates of title covering the Collateral executed by
the Obligors shall duly have been recorded or filed in the manner and places
required by law to establish, preserve, protect and perfect the interests and
rights created or intended to be created by this Agreement and any other Loan
Document; and all taxes, fees and other charges in connection with the
execution, delivery and filing of this Agreement, the Notes and the other Loan
Documents shall have been paid.
-19-
25
(g) Additional Documents. The Obligors shall have
delivered to the Bank all additional opinions, documents, certificates and
other assurances that the Bank or its counsel may reasonably require.
5.2 Conditions Precedent to Each Advance. The following
conditions, in addition to any other requirements set forth in this Agreement,
shall have been met or performed by the Advance Date with respect to any
Advance Request:
(a) Advance Request. The Borrower shall have delivered
to the bank an Advance Request and other information, as required under in
Section 3.4 ("Notice and Manner of Borrowing").
(b) No Default. No default shall have occurred and be
continuing or will occur upon the making of the Advance in question and the
Borrower shall have delivered to the Bank an officer's certificate to such
effect, which may be incorporated in the Advance Request.
(c) Correctness of Representations. All representations
and warranties made by the Obligors herein or otherwise in writing in
connection herewith shall be true and correct with the same effect as though
the representations and warranties had been made on and as of the proposed
Advance Date, and the Borrower shall have delivered to the Bank an officer's
certificate to such effect, which may be incorporated in the Advance Request.
(d) No Adverse Change. There shall have been no
material adverse change in the condition, financial or otherwise, of the
Obligors from such condition as it existed on the date of the most recent
financial statements of such Person delivered prior to date hereof.
(e) Periodic Report. The Bank shall have received a
current Accounts Receivable Report, Accounts Payable Report and a current
Inventory Report (as required by Section 6.6 ("Financial Information")
satisfactory to Bank in its sole discretion.
(f) Further Assurances. The Obligors shall have
delivered such further documentation or assurances as the Bank may reasonably
require.
6. COVENANTS OF THE BORROWER. Obligors covenant and agree that
from the date hereof and until payment in full of the Indebtedness and the
formal termination of this Agreement, unless the Bank shall otherwise consent
in writing, the Obligors:
-20-
26
6.1 Use of Loan Proceeds. Shall use the proceeds of the Loans
only for the commercial purposes permitted herein or otherwise permitted by the
Bank and furnish the Bank all evidence that it may reasonably require with
respect to such use.
6.2 Maintenance of Business and Properties. Shall at all times
maintain, preserve and protect all of its property used or useful in the
conduct of its business, including, without limitation, the Collateral, and
keep the same in good repair, working order and condition, and from time to
time make, or cause to be made, all material, needful and proper repairs,
renewals, replacements, betterments and improvements thereto so that the
business carried on in connection therewith may be conducted properly and in
accordance with standards generally accepted in businesses of a similar type
and size at all times, and maintain and keep in full force and effect all
licenses and permits necessary to the proper conduct of its business.
6.3 Insurance. Shall maintain such liability insurance, workers'
compensation insurance, business interruption insurance and casualty insurance
as may be required by law or customary and usual for prudent businesses in its
industry or as may be reasonably required by the Bank and shall insure and keep
insured all Collateral and other properties in good and responsible insurance
companies satisfactory to the Bank. All liability policies shall name Bank as
an additional named insured, as its interests may appear. The hazard insurance
covering Collateral shall be in amounts and shall contain co-insurance and
deductible provisions approved by the Bank; and shall name and directly insure
the Bank its successors and assigns as secured party and loss payee under an
endorsement acceptable to Bank. Each policy must contain a provision that Bank
will receive 30 days' prior written notice of expiration, cancellation,
termination or modification of such policy.
6.4 Notice of Default. Shall provide to the Bank immediate notice
of (a) the occurrence of a Default, (b) any material litigation or material
changes in existing litigation or any judgment against it or its assets, (c)
any material damage or loss to property, (d) any notice from taxing authorities
as to claimed deficiencies or any tax lien or any notice relating to alleged
ERISA violations, (e) any Reportable Event, as defined in ERISA, (f) any
rejection, return, offset, dispute, loss or other circumstance having a
material adverse effect on any Collateral, and (g) any loss or threatened loss
of material licenses or permits.
6.5 Inspections. Shall permit inspections of the Collateral and
the records of such Person pertaining thereto, at such times and in such manner
as may be reasonably required by the Bank and shall further permit such
inspection, review and audits of its other records and its properties (with
such reasonable frequency and at such reasonable times as the Bank may desire)
by the Bank as the Bank may deem necessary
-21-
27
or desirable from time to time. The cost of such audits, reviews and
inspections shall be borne by the Bank.
6.6 Financial Information. Shall maintain books and records in
accordance with generally accepted accounting principles and shall furnish to
the Bank the following periodic financial information:
(a) Periodic Accounts Receivable, Accounts Payable and
Inventory Reports. Within 20 days of the end of each month reports certified
by the Chief Executive Officer or the Chief Financial Officer of Borrower as
being accurate and complete (i) listing all Accounts and Eligible Accounts
Receivable of the Borrower and its wholly owned Subsidiaries as of the last
Business Day of such month (the "Accounts Receivable Report") which shall
include the amount and age of each Account, the name and mailing address of
each Account Debtor and such other information as the Bank may require in order
to verify the Accounts, (ii) listing all accounts payable of the Obligor's as
of the last Business Day of such month (the "Accounts Report") which shall
include the amount and age of each account payable, the name and mailing
address of each account creditor and such other information as the Bank may
require in order to verify such account, and (iii) listing all Inventory and
Eligible Inventory of the Borrower and its wholly owned Subsidiaries as of the
last Business Day of such month (the "Inventory Report), the cost thereof, the
date of acquisition, and such other information as the Bank may require
relating thereto, all in reasonable detail and in form acceptable to the Bank;
(b) Monthly Reports. Within 20 days after the end of
each month reports of the results of Borrower's domestic operations for such
month and within 30 days after the end of each month a consolidated income
statement and a consolidated balance sheet for the operation of Borrower and
the Subsidiaries prepared in accordance with generally accepted accounting
principles, as at the end of such month and year to date, each certified by the
Chief Executive Officer or the Chief Financial Officer of Borrower as being
accurate and complete.
(c) Quarterly Reports. Within 60 days after the end of
each calendar quarter, a consolidated income statement and a balance sheet for
the operation of Borrower and the Subsidiaries prepared in accordance with
generally accepted accounting principles, as at the end of such quarter and
year-to-date, each certified by the Chief Executive Officer or the Chief
Financial Officer of the Borrower as being accurate and complete;
(d) Annual Reports. Within 120 days after the end of
each fiscal year, a consolidated income statement and a reconciliation of
surplus statement of the Borrower and its Subsidiaries for such year, and a
consolidated balance sheet of Borrower and its
-22-
28
Subsidiaries as of the end of such year, prepared in accordance with generally
accepted accounting principles and audited by independent certified public
accountants of recognized standing selected by the Borrower and reasonably
satisfactory to the Bank; and
(e) No Default Certificates. Together with each report
required by Subsection (c) and (d), shall submit a certificate of its Chief
Executive Officer or Chief Financial Officer that no Default or Event of
Default then exists or if a Default or Event of Default exists, the nature and
duration thereof and the Borrower's intention with respect thereto, and in
addition, shall cause the Borrower's independent auditors to submit to the
Bank, together with its audit report, a statement that, in the course of such
audit, it discovered no circumstances which it believes would result in a
Default or Event of Default or if it discovered any such circumstances, the
nature and duration thereof; and shall also cause each Guarantor to submit a
financial statement not less frequently than annually, in a form reasonably
satisfactory to the Bank. In addition to the financial statements required
herein, the Bank reserves the right to require other or additional financial or
other information concerning the Borrower, the Guarantors and/or the Collateral
as Bank may reasonably require.
(f) Securities Filings. Shall provide Bank with copies
of all form 10-K, 10-Q or other filings or information relating to the Obligors
immediately after filing with the SEC or any state securities regulator.
6.7 Debt. Shall not create or permit to exist any Debt
of any Obligor, including any guaranties or other contingent obligations,
except Permitted Debt.
6.8 Liens. Shall not create or permit to exist any Liens
on any of its property except Permitted Liens.
6.9 Merger, Sale, Etc. Shall maintain its corporate
existence, good standing and necessary qualifications to do business and,
except as provided in Section 6.20, shall not merge or consolidate with any
Person or acquire all or substantially all of the assets of, or 50% or more of
any class of equity interest of, any Person or sell, lease, assign or otherwise
dispose of any Collateral or substantial portion of its other assets (other
than sales of obsolete or worn-out equipment and sales of Inventory in the
ordinary course of business).
6.10 Loans and Other Investments. Shall not make or
permit to exist any advances or loans to, or guarantee or become contingently
liable, directly or indirectly, in connection with the obligations, leases,
stock or dividends of, or own, purchase or make any commitment to purchase any
stock, bonds, notes, debentures or other securities of, or
-23-
29
any interest in, or make any capital contributions to (all of which are
sometimes collectively referred to herein as "Investments") any Person except
for (a) purchases of direct obligations of the federal government, (b) deposits
in commercial banks, (c) commercial paper of any U.S. corporation having the
highest ratings then given by Xxxxx'x Investors Service, Inc. or Standard &
Poor's Corporation, (d) investments in Subsidiaries existing on the date
hereof, and (e) endorsement of negotiable instruments for collection in the
ordinary course of business.
6.11 Change in Business. Shall not enter into any
business which is substantially different from the business or businesses in
which it is presently engaged.
6.12 Accounts. (a) shall not sell, assign or discount any
of its Accounts, Chattel Paper or any promissory notes held by it other than
the discount of such notes in the ordinary course of business for collection;
and (b) shall notify the Bank promptly in writing with any discount, offset or
other deductions not shown on the face of an Account invoice and any dispute
over an Account, and any information relating to an adverse change in any
Account Debtor's financial condition or ability to pay its obligations.
6.13 Transactions with Affiliates. Shall not directly or
indirectly purch ase, acquire or lease any property from, or sell,
transfer or lease any property to, or otherwise deal with, except in the
ordinary course of business, any Affiliate.
6.14 No Change in Name, Offices; Removal of Collateral.
Shall not, unless it shall have given 60 days' advance written notice thereof
to the Bank, (a) change its name or the location of its chief executive office
or other office where books or records are kept or (b) permit any Inventory or
other tangible Collateral to be located at any location other than as specified
in Section 2.9. ("Location").
6.15 No Sale, Leaseback. Shall not enter into any
sale-and-leaseback or similar transaction.
6.16 Margin Stock. Shall not use any proceeds of the
Loans to purchase or carry any margin stock (within the meaning of Regulation U
of the Board of Governors of Federal Reserve System) or extend credit to others
for the purpose of purchasing or carrying any margin stock.
6.17 Payment of Taxes, Etc. Shall pay before delinquent
all of its debts and taxes except that the Bank shall not unreasonably withhold
its consent to nonpayment of taxes being actively contested in accordance with
law (provided that the Bank may require bonding or other assurances).
-24-
30
6.18 Subordination. Shall cause all debt and other
obligations now or hereafter owed to any Guarantor or Affiliate to be
subordinated in right of payment and security to the Indebtedness in accordance
with subordination agreements satisfactory to the Bank.
6.19 Compliance; Hazardous Materials. Shall strictly
comply with all laws, regulations, ordinances and other legal requirements,
specifically including, without limitation, ERISA, all securities laws and all
laws relating to hazardous materials and the environment. Except as otherwise
provided in this Agreement, unless approved in writing by the Bank, Obligors
shall not engage in the storage, manufacture, disposition, processing,
handling, use or transportation of any hazardous or toxic materials, whether or
not in compliance with applicable laws and regulations.
6.20 Subsidiaries. Shall not acquire, form or dispose of
any Subsidiaries without Bank's prior written consent and shall cause the newly
formed or acquired Subsidiaries to join in this Agreement as an Obligor and to
provide Guarantees of the Indebtedness promptly after forming or acquiring such
subsidiaries. In no event shall the proceeds of any Loan be used to acquire
H.C. Investments, Inc. or X.X. Xxxxxxx, Inc. or to fund the operations of such
company in any way. No Obligor shall guarantee any Debt of or H.C.
Investments, Inc. or X.X. Xxxxxxx, Inc. directly or indirectly. New
Subsidiaries may be acquired without the prior written consent of the Bank
provided Borrower provides prior written notice to the Bank containing a
certification that the terms of this Agreement and the special terms outlined
below will be complied with after said acquisition. The special terms are:
(a) The Subsidiary to be acquired is engaged in one of
the three primary lines of business for the Borrower -- highway signage,
telecommunications or utility installation; and
(b) The ratio of the combined earnings before deduction
of interest, taxes, depreciation, amortization and lease payments of Borrower
and the Subsidiary to be acquired calculated on a trailing four quarters basis
for both the Borrower and the Subsidiary to be acquired, divided by the
combined projected interest, principal and lease payments of Borrower and the
Subsidiary to be acquired, calculated for the four quarters after acquisition
shall be greater than 1.75X.
6.21 Net Worth. Shall maintain Borrowers Tangible Net
Worth at the end of each quarter beginning with the quarter ending October 31,
1995, at not less than Nine Million Three Hundred Thousand and no/100 Dollars
($9,300,000.00).
-25-
31
6.22 Funded Debt/Tangible Net Worth. Shall assure that
the ratio of Borrower's total Funded Debt to the Borrower's Tangible Net Worth
shall be less than 1.40X. This ratio shall be tested on a quarterly basis
beginning October 31, 1995.
6.23 Debt Service. Shall assure that Borrower's earnings
before deduction of interest payments, taxes, depreciation and amortization
shall be greater than 1.20 x Debt Service measured quarterly beginning January
31, 1996 for the trailing four quarters. For the purpose of testing compliance
with the covenants in Sections 6.21, 6.22 and 6.23, the financial results of
H.C. Investments, Inc. and X.X. Xxxxxxx, Inc. will not be included.
6.24 Stockholder Loans. Shall not repay the Stockholders
Loans (a) prior to the January 1996 due date therefore (b) if repayment would
negatively impact Borrower's working capital in Bank's reasonable judgment (c)
if Borrower's audited financial statements for the fiscal year ending October
31, 1995 show a material adverse change in Borrower's financial condition from
that reflected in Borrower's financial statements provided the Bank prior to
the date of this Agreement or (d) if such repayment would result in the
violation of any covenant contained in this Agreement.
6.25 Further Assurances. Shall take such further action
and provide to the Bank such further assurances as may be reasonably requested
to ensure compliance with the intent of this Agreement and the other Loan
Documents.
6.26 Withholding Taxes. Shall pay as and when due all
employee withholding, FICA and other payments required by federal, state and
local governments with respect to wages paid to employees.
6.27 Depository Accounts. Shall at all times when any
Indebtedness is outstanding cause the primary operating accounts of Borrower
and the Subsidiaries to be established and maintained at the Bank.
7. DEFAULT.
7.1 Events of Default. Each of the following shall
constitute an Event of Default:
(a) Any material representation or warranty made by the
Borrower or any other party to any Loan Document (other than the Bank) herein
or therein or in any certificate or report furnished in connection herewith or
therewith shall prove to have been untrue or incorrect in any material and
adverse respect when made; or
-26-
32
(b) There shall occur any default by the Borrower in the
payment, when due, of any principal of or interest on any of the Notes, any
amounts due hereunder or any other Loan Document or any other Indebtedness (not
cured within any grace period provided in such Note or in the document or
instrument evidencing such Indebtedness); or
(c) There shall occur any default by the Borrower or any
other party to any Loan Document (other than the Bank) in the performance of
any agreement, covenant or obligation contained in this Agreement or such Loan
Document not provided for elsewhere in this Section 7 and such default is not
cured within fifteen (15) days after Bank gives Borrower written notice of such
default unless a different grace period is provided in this Agreement or
another Loan Document; or
(d) Any other obligation now or hereafter owed by the
Borrower or any Guarantor to the Bank shall be in default and not cured within
any period of grace provided therein or any such Person shall be in default
under any obligation in excess of $50,000 owed to any other obligee, which
default entitles the obligee to accelerate any such obligations or exercise
other remedies with respect thereto; or
(e) The Borrower or any Guarantor shall (i) voluntarily
liquidate or terminate operations or apply for or consent to the appointment
of, or the taking of possession by, a receiver, custodian, trustee or
liquidator of such Person or of all or of a substantial part of its assets,
(ii) admit in writing its inability, or be generally unable, to pay its debts
as the debts become due, (iii) make a general assignment for the benefit of its
creditors, (iv) commence a voluntary case under the federal Bankruptcy Code (as
now or hereafter in effect), (v) file a petition seeking to take advantage of
any other law relating to bankruptcy, insolvency, reorganization, winding-up,
or composition or adjustment of debts, (vi) fail to controvert in a timely and
appropriate manner, or acquiesce in writing to, any petition filed against it
in an involuntary case under the Bankruptcy Code, or (vii) take any corporate
action for the purpose of effecting any of the foregoing; or
(f) without its application, approval or consent, a
proceeding shall be commenced, in any court of competent jurisdiction, seeking
in respect of Borrower or any Guarantor any remedy under the federal Bankruptcy
Code, the liquidation, reorganization, dissolution, winding-up, or composition
or readjustment of debt, the appointment of a trustee, receiver, liquidator or
the like of Borrower or any Guarantor, or of all or any substantial part of the
assets of Borrower or any Guarantor, or other like relief under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition
or adjustment of debts and such action shall not be dismissed within sixty (60)
days after filing; or
-27-
33
(g) Any security interest or Lien of the Bank hereunder
or under any other Loan Document shall not constitute a perfected security
interest of first priority in the Collateral thereby encumbered, subject only
to Permitted Liens; or
(h) There shall occur any material loss, theft, damage or
destruction of any of the Collateral in excess of $100,000, which loss is not
fully insured; or
(i) A judgment in excess of $50,000 shall be rendered
against the Borrower or any Guarantor and shall remain undischarged,
undismissed and unstayed for more than ten days (except judgments validly
covered by insurance with a deductible of not more than $50,000) or there shall
occur any levy upon, or attachment, garnishment or other seizure of, any
material portion of the Collateral or other assets of the Borrower, or any
Guarantor by reason of the issuance of any tax levy, judicial attachment or
garnishment or levy of execution; or
(j) Any Guarantor shall repudiate or revoke any Guaranty
Agreement.
7.2 Remedies. If any Event of Default shall occur, the
Bank may, without notice to the Borrower, at its option, withhold further
Advances to the Borrower of proceeds of the Loans and/or declare any or all
Indebtedness to be immediately due and payable (if not earlier demanded), bring
suit against the Borrower and/or any Guarantor to collect the Indebtedness,
exercise any remedy available to the Bank hereunder and take any action or
exercise any remedy provided herein or in any other Loan Document or under
applicable law. No remedy shall be exclusive of other remedies or impair the
right of the Bank to exercise any other remedies.
7.3 Receiver. In addition to any other remedy available
to it, the Bank shall have the absolute right, upon the occurrence of an Event
of Default, to seek and obtain the appointment of a receiver to take possession
of and operate and/or dispose of the business and assets of the Obligors and
any costs and expenses incurred by the Bank in connection with such
receivership shall bear interest at the Default Rate and shall be secured by
all Collateral.
8. SECURITY AGREEMENT.
8.1 Security Interest.
(a) As security for the payment and performance of any
and all of the Indebtedness and the performance of all other obligations and
covenants of the Obligors hereunder and under the other Loan Documents, certain
or contingent, now existing or hereafter arising, which are now, or may at any
time or times hereafter be owing by the Obligors to the Bank, the Obligors
hereby pledge to the Bank and give the Bank a
-28-
34
continuing security interest in and general Lien upon and right of set-off
against, all right, title and interest of the Obligors in and to the
Collateral, whether now owned or hereafter acquired by the Obligors.
(b) Except as herein or by applicable law otherwise
expressly provided, the Bank shall not be obligated to exercise any degree of
care in connection with any Collateral in its possession, to take any steps
necessary to preserve any rights in any of the Collateral or to preserve any
rights therein against prior parties, and the Obligors agree to take such
steps. In any case the Bank shall be deemed to have exercised reasonable care
if it shall have taken such steps for the care and preservation of the
Collateral or rights therein as the Obligor may have reasonably requested the
Bank to take and the Bank's omission to take any action not requested by the
Borrower shall not be deemed a failure to exercise reasonable care. No
segregation or specific allocation by the Bank of specified items of Collateral
against any liability of the Obligors shall waive or affect any security
interest in or Lien against other items of Collateral or any of the Bank's
options, powers or rights under this Agreement or otherwise arising.
(c) At any time and from time to time after an Event of
Default, Bank may, with or without notice to the Obligors, (i) transfer into
the name of the Bank or the name of the Bank's nominee any of the Collateral,
(ii) notify any Account Debtor or other obligor of any Collateral to make
payment thereon direct to the Bank of any amounts due or to become due thereon
and (iii) receive and after an Event of Default direct the disposition of any
proceeds of any Collateral.
8.2 Remedies.
(a) If an Event of Default shall have occurred and be
continuing, without waiving any of its other rights hereunder or under any
other Loan Documents, the Bank shall have all rights and remedies of a secured
party under the Code (and the Uniform Commercial Code of any other applicable
jurisdiction) and such other rights and remedies as may be available hereunder,
under other applicable law or pursuant to contract. If requested by the Bank,
the Obligors will promptly assemble the Collateral and make it available to the
Bank at a place to be designated by the Bank. The Obligors agree that any
notice by the Bank of the sale or disposition of the Collateral or any other
intended action hereunder, whether required by the Code or otherwise, shall
constitute reasonable notice to the Obligors if the notice is mailed to the
Borrower by regular or certified mail, postage prepaid, at least ten days
before the action to be taken. The Obligors shall be liable for any
deficiencies in the event the proceeds of the disposition of the Collateral do
not satisfy the Indebtedness in full.
-29-
35
(b) If an Event of Default shall have occurred and be
continuing, the Bank may demand, collect and xxx for all amounts owed pursuant
to Accounts, General Intangibles, Chattel Paper or for proceeds of any
Collateral (either in an Obligors' name or the Bank's name at the latter's
option), with the right to enforce, compromise, settle or discharge any such
amounts. The Obligors appoint the Bank as the Obligors' attorney-in-fact to
endorse any Obligors' name on all checks, commercial paper and other
instruments pertaining to Collateral or proceeds after an Event of Default.
8.3 Entry. Obligors hereby irrevocably consent to any
act by the Bank or its agents in entering upon any premises for the purposes of
either (i) inspecting the Collateral or (ii) taking possession of the
Collateral after an Event of Default and each Obligor hereby waives its right
to assert against the Bank or its agents any claim based upon trespass or any
similar cause of action for entering upon any premises where the Collateral may
be located.
8.4 Deposits; Insurance. Upon the occurrence and
continuance of an Event of Default, Obligors authorize the Bank to collect and
apply against the Indebtedness when due any cash or deposit accounts in its
possession, and any refund of insurance premiums or any insurance proceeds
payable on account of the loss or damage to any of the Collateral and
irrevocably appoints the Bank as its attorney-in-fact to endorse any check or
draft or take other action necessary to obtain such funds after an Event of
Default.
8.5 Other Rights. Obligors authorize the Bank without
affecting the Obligors' obligations hereunder or under any other Loan Document
from time to time (i) to take from any party and hold additional Collateral or
guaranties for the payment of the Indebtedness or any part thereof, and to
exchange, enforce or release such collateral or guaranty of payment of the
Indebtedness or any part thereof and to release or substitute any endorser or
guarantor or any party who has given any security interest in any collateral as
security for the payment of the Indebtedness or any part thereof or any party
in any way obligated to pay the Indebtedness or any part thereof; and (ii) upon
the occurrence of any Event of Default to direct the manner of the disposition
of the Collateral and the enforcement of any endorsements, guaranties, letters
of credit or other security relating to the Indebtedness or any part thereof as
the Bank in its sole discretion may determine.
8.6 Accounts. After an Event of Default, the Bank may
notify any Account Debtor of the Bank's security interest and may direct such
Account Debtor to make payment directly to the Bank for application against the
Indebtedness. Any such payments received by or on behalf of an Obligor at any
time, after an Event of Default, shall be the property of the Bank, shall be
held in trust for the Bank and not commingled
-30-
36
with any other assets of any Person (except to the extent they may be
commingled with other assets of an Obligor in an account with the Bank) and
shall be immediately delivered to the Bank in the form received. The Bank shall
have the right to apply any proceeds of Collateral to such of the Indebtedness
as it may determine.
8.7 Tangible Collateral. Except as otherwise provided
herein or agreed to in writing by the Bank, no Inventory or other tangible
collateral shall be commingled with, or become an accession to or part of, any
property of any other Person so long as such property is Collateral. Upon the
occurrence of any Event of Default, the Borrower shall, upon the request of the
Bank, promptly assemble all tangible Collateral for delivery to the Bank or its
agents. No tangible Collateral shall be allowed to become a fixture unless the
Bank shall have given its prior written authorization.
8.8 Waiver of Marshalling. Each Obligor hereby waives
any right it may have to require marshalling of its assets.
9. MISCELLANEOUS.
9.1 No Waiver, Remedies Cumulative. No failure on the
part of the Bank to exercise, and no delay in exercising, any right hereunder
or under any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and are in addition to any other remedies
provided by law, any Loan Document or otherwise.
9.2 Survival of Representations. All representations and
warranties made herein shall survive the making of the Loans hereunder and the
delivery of the Notes, and shall continue in full force and effect so long as
any Indebtedness is outstanding, there exists any commitment by the Bank to an
Obligor, and until this Agreement is formally terminated in writing.
9.3 Expenses. Whether or not the Loans herein provided
for shall be made, the Borrower shall pay all reasonable costs and expenses in
connection with the preparation, execution, delivery, amendment and enforcement
of this Agreement and any Loan Document, including the reasonable fees and
disbursements of counsel for the Bank in connection therewith, whether suit be
brought or not and whether incurred at trial or on appeal, and all costs of
repossession, storage, disposition, protection and collection of Collateral.
If the Borrower should fail to pay any tax or other amount required by this
Agreement to be paid or which may be reasonably necessary to protect or
preserve any Collateral or an Obligors' or Bank's interests therein, the Bank
may make such payment and the amount thereof shall be payable on demand, shall
bear interest at the Default Rate
-31-
37
from the date of demand until paid and shall be deemed to be Indebtedness
entitled to the benefit and security of the Loan Documents. In addition,
Obligors agree to pay and save the Bank harmless against any liability for
payment of any state documentary stamp taxes, intangible taxes or similar taxes
(including interest or penalties, if any) which may now or hereafter be
determined to be payable in respect to the execution, delivery or recording of
any Loan Document or the making of any Advance, whether originally thought to
be due or not, and regardless of any mistake of fact or law on the part of the
Bank or the Borrower with respect to the applicability of such tax. The
provisions of this section shall survive payment in full of the Loans and
termination of this Agreement.
9.4 Notices. Any notice or other communication hereunder
to any party hereto shall be by hand delivery, overnight delivery, facsimile,
telegram, telex or registered or certified mail provided such delivery is
evidenced by a receipt or other written proof of delivery or refusal of
delivery or inability to deliver and unless otherwise provided herein shall be
deemed to have been given or made when delivered, telegraphed, telexed, faxed
or deposited in the mails, postage prepaid, addressed to the party at its
address specified below (or at any other address that the party may hereafter
specify to the other parties in writing):
The Bank: SUNTRUST BANK, SOUTH FLORIDA, N.A.
000 XXXX XXX XXXX XXXXXXXXX
XX. XXXXXXXXXX, XXXXXXX 00000
ATTN: CORPORATE BANKING DEPARTMENT 7TH FLOOR
The Obligors: ABLE TELCOM HOLDING CORPORATION
0000 XXXXX XXXXX, XXXXX 0000
XXXX XXXX XXXXX, XXXXXXX 00000
ATTN: XX. XXXXXXX X. XXXXXXXX
Copy to: XXXX X. XXXXXX, ESQ.
PROSKAUER, ROSE, GOETZ, & XXXXXXXXXX
0000 XXXXXX XXXX, XXXXX 000
XXXX XXXXX, XX 00000-0000
. . . . . . . . . . . . . . . . . . . . . . . .
Delivery of notice to Borrower's counsel shall be a courtesy copy only and
failure to deliver to Borrower's counsel shall not affect the effectiveness of
delivery to Borrower.
9.5 Governing Law. This Agreement and the Loan Documents
shall be deemed contracts made under the laws of the State of Florida and shall
be governed by
-32-
38
and construed in accordance with the laws of said state except insofar as the
laws of another jurisdiction may govern the perfection, priority and
enforcement of security interests in Collateral located in another
jurisdiction.
9.6 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the Obligors and the Bank, and
their respective successors and assigns; provided, that the Obligors may not
assign any of their rights hereunder without the prior written consent of the
Bank, and any such assignment made without such consent will be void.
9.7 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which when taken together shall constitute but one and the
same instrument.
9.8 No Usury. Notwithstanding anything contained in this
Agreement, the Note, or in any other Loan Document to the contrary, in no event
will interest or other charges deemed to be interest be chargeable against the
Obligors if such amount (combined with any other amounts considered to be in
the nature of interest) would exceed the maximum amount permitted by law from
time to time while any of the Indebtedness is outstanding, and in the event any
amount in excess of the lawful maximum is charged or collected by the Bank or
paid by an Obligor, the Obligor shall be entitled to the reimbursement of such
excess.
9.9 Powers. All powers of attorney granted to the Bank
are coupled with an interest and are irrevocable.
9.10 Approvals. If this Agreement calls for the approval
or consent of the Bank, such approval or consent may be given or withheld in
the reasonable discretion of the Bank unless otherwise specified herein.
9.11 Jurisdiction, Service of Process.
(a) Any suit, action or proceeding against the Borrower
with respect to this Agreement, the Collateral or any Loan Document or any
judgment entered by any. court in respect thereof may be brought in the courts
of Palm Beach County, Florida, and the Borrower hereby accepts the nonexclusive
jurisdiction of those courts for the purpose of any suit, action or proceeding.
Service of process in any such case may be had against the Obligors by delivery
in accordance with the notice provisions herein or as otherwise permitted by
law, and the Obligors agree that such service shall be valid in all respects
for establishing personal jurisdiction over it.
-33-
39
(b) In addition, the Obligors hereby irrevocably waive,
to the fullest extent permitted by law, any objection which they may now or
hereafter have to the laying of venue of any suit, action or proceeding arising
out of or relating to this Agreement, the Loan Documents, the Collateral or any
judgment entered by any court in respect thereof brought in Palm Beach County,
Florida, and hereby further irrevocably waives any claim that any suit, action
or proceedings brought in Palm Beach County, Florida or in such District Court
has been brought in an inconvenient forum.
9.12 Multiple Borrowers. If more than one Person is named
herein as the Borrower, all obligations, representations and covenants herein
and in other Loan Documents to which the Borrower is a party shall be joint and
several.
9.13 Waiver of Jury Trial. THE OBLIGORS AND THE BANK
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT ANY OF THEM MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS AGREEMENT
OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER
LOAN DOCUMENT AND ANY OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
SUNTRUST BANK, SOUTH FLORIDA, N.A.
By: Xxxx X. Xxxxxxx
--------------------------------
Print Name: Xxxx X. Xxxxxxx
-------------------------
Title: Vice President
------------------------------
ABLE TELCOM HOLDING CORP., a
Florida corporation
By: Xxxxxxx X. Xxxxxxxx
---------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
-------------------------
Title: President
------------------------------
-34-
40
TRANSPORTATION SAFETY CONTRACTORS
OF VIRGINIA, INC., a Virginia corporation
By: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Executive Vice President
-----------------------------------
TRANSPORTATION SAFETY CONTRACTORS, INC.,
a Florida corporation
By: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Executive Vice President
-----------------------------------
BCD COMMUNICATIONS, INC., a Florida corporation
By: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Executive Vice President
-----------------------------------
TIPCO, INC., a Florida corporation
By: Xxxxxxx X. Xxxxxxxx
--------------------------------------
Print Name: Xxxxxxx X. Xxxxxxxx
------------------------------
Title: Executive Vice President
-----------------------------------
-35-
41
EXHIBIT 1.1C
FORM PROMISSORY NOTE EVIDENCING EQUIPMENT LOAN
69
42
SUNTRUST PROMISSORY NOTE
$_________________________ _____________________, 19___
The undersigned (whether one or more hereinafter called "Maker"), jointly and severally, promise(s) to pay to the order of
______________________________________________________________________________________ (herein called "Bank") at its offices located
at _____________________________________, Florida, ___________________________________________________ Dollars ($________________),
together with interest from the date hereof at the rate hereinafter provided, and applicable fees in the following manner:
REPAYMENT SCHEDULE:
[ ] Single Payment Principal Due in Full On:_________________________________________________________________________________
Interest Payable:_________________________________________________________________________________________
[ ] Installment Payment (including interest): In _______________________________ _______________________________
(No.) (Period)
Installments of $_________________ commencing on __________, 19___, and on the same day of each
successive ___________________ thereafter, together with a FINAL PAYMENT of $________ due and payable on
__________, 19___.
[ ] Installment Payment (plus interest):______________________
(No.)
Principal installments of $_______________, plus interest, commencing on ________, 19___, and on the
same day of each successive _________________ thereafter, together with a FINAL PAYMENT of $_____________,
plus accrued interest due and payable on ________________, 19___.
[ ] Multiple Payment Principal and interest are payable as follows: ___________________________________________________________
__________________________________________________________________________________________________________
__________________________________________________________________________________________________________
[ ] ON DEMAND Principal payable ON DEMAND with interest payable ________________________________________________________
commencing on ____________ and each ________________ thereafter.
[ ] Prepayment Right Bank shall have the absolute and unconditional right, at its sole discretion, to require Maker to
pay the entire loan balance, along with accrued unpaid interest at any time after the sixty-first (61st)
month from the note date. If the bank elects to exercise such right of payment, Bank will provide Maker
ninety (90) days prior written notice of its intention to demand payment. If Bank does not exercise such
right of payment, the loan balance outstanding, along with accrued unpaid interest is due and payable on
the one hundred twentieth (120th) installment.
THE INTEREST RATE IS AS FOLLOWS: [ ] If checked here, the interest rate provided herein shall be computed on the basis of a
365 day year and shall be calculated for the actual number of days elapsed. If not checked, the interest rate shall be computed on
the basis of a 360 day year and shall be calculated for the actual number of days elapsed.
Variable Interest rate
[ ] Not applicable
[ ] Applicable, provided however that the interest rate charged hereunder shall never exceed the maximum rate allowed, from time
to time, by law. If this loan is for a consumer purpose and is secured by a dwelling, the maximum interest rate charged will
never exceed 18% per annum or the state usury ceiling, whichever is less.
If applicable, the interest rate stated herein shall, from time to time, automatically increase or decrease so that at all
times it shall be equivalent to (check appropriate box and complete):
[ ] ______% over the annual interest rate announced by _____________________, from time to time, as the prime rate
(which interest rate is only a bench xxxx, is purely discretionary and is not necessarily the best or lowest rate charged
borrowing customers of any subsidiary bank of Sun Banks, Inc.). Any such change in prime rate will increase or decrease your
periodic interest payments. Any change in prime rate shall be effective at the beginning of the business day on which such
change is announced; or,
[ ] _____% over the ______________________________________________________________________________________________________________
______________________________________________________________________________________________________________________________
FIXED RATE [ ] Applicable at ________% per annum, simple interest. [ ] Not Applicable
LATE CHARGE FEE If a payment is late, you may be charged 5% of such payment as a late charge. A payment which is not
received on the due date shall be deemed late.
SERVICE FEE A service fee of the lesser of $50.00 or 2 percent of the princpal amount of this loan will be charged.
The service fee charge will not be refunded in the event of prepayment.
ADDITIONAL FEES The Bank may charge various additional fees for servicing or processing the loan. The name of the fee
shall describe the work performed.
In the event any installment of principal or interest or any part thereof is not paid when it becomes due, or in the event
of any default hereunder, the principal sum remaining unpaid hereunder, together with all accrued and past due interest thereon,
shall immediately and without notice become due and payable at the election of the holder at any time thereafter.
Notwithstanding any rate of interest provided herein, the interest rate on any payment or payments of principal or interest,
or any part thereof, which is not made when due shall, thereafter, be at the maximum rate allowed, from time to time, by law.
Minimum interest of $10.00 on any single payment loan or $15.00 on any installment loan will be charged.
This note is [ ] SECURED [ ] UNSECURED (Notwithstanding the fact that this note is marked 'unsecured', Maker
understands and agrees that any other security interest the Bank now holds or may hereafter acquire from the Maker may secure this
note).
As security for the payment of this note Maker has pledged or deposited with Bank and hereby grants to Bank a security
interest in the following property:_________________________________________________________________________________________________
____________________________________________________________________________________________________________________________________
_______________________________________________________________________________________________________________________ (including
all cash, stock and other dividends and all rights to subscribe for securities incident to, declared, or granted in connection with
such property and including any returned or unearned premiums from any insurance financed hereunder), which property, together with
all additions and substitutions hereafter pledged or deposited with Bank is called the Collateral. The Collateral is also pledged
as security for all other liabilities (primary, secondary, direct, contingent, sole, joint, or several), due or to become due or
which may be hereafter contracted or acquired, of each Maker (including each Maker and any other person) to Bank and for all
renewals, extensions or modifications of this note. The surrender of this note, upon payment or otherwise, shall not affect the
right of Bank to retain the Collateral for such other liabilities.
Lender may request periodically as it deems necessary, complete and current financial statements, balance sheets, profit and
loss statements, and cash flow information for Maker and Cosigner.
Maker understands and agrees that the jury waiver, the additional agreements and provisions on the reverse side hereof,
hereby incorporated by reference, constitute agreements of the Maker and a part of this note. Maker acknowledges receipt of a
completed copy of this note.
------------------------------------------------------------------------------------------------------------------------------------
Notice to Cosigner: You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn't pay
the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility.
You may have to pay up to the full amount of the debt if the borrower does not pay. You may also have to pay late fees or
collection costs, which increase this amount. The Bank can collect this debt from you without first trying to collect from the
borrower. The Bank can use the same collection methods against you that can be used against the borrower, such as suing you,
garnishing your wages, etc. If this debt is ever in default, that fact may become a part of your credit record.
This notice is not the contract that makes you liable for the debt.
------------------------------------------------------------------------------------------------------------------------------------
Address: _________________________ __________________________________(Seal) __________________________________
Date
__________________________________ __________________________________(Seal) _________________________________
Date
====================================================================================================================================
__________________________ __________________________ __________________________ _________________________
Proceeds Document Stamps Other Charges Note Amount
43
If the variable interest rate is not applicable and if this note is payable on demand, Bank reserves, and is hereby granted
the right, to adjust the interest rate from time to time by furnishing Maker with written notice of such adjusted rate, provided,
however, that no such adjusted rate shall exceed the maximum rate allowed, from time to time, by law.
Additions to reductions or exchanges of or substitutions for the Collateral, payments on account of this note or increases
of the same, or other loans made partially or wholly upon the Collateral, may from time to time, be made without affecting the
provisions of this note.
If Bank deems itself insecure, or upon the happening of any of the following events, each of which shall constitute a
default hereunder, all liabilities of each Maker to Bank shall thereupon or thereafter, at the option of the Bank, without notice or
demand, become due and payable: (a) failure of any Obligor (which term shall mean and include each Maker, endorser, surety and
guarantor of this note) to perform any agreement hereunder to pay interest hereon when due or requested or demanded or to pay other
liability whatsoever to Bank when due: (b) the death of any Obligor; (c) the filing of any petition under the Bankruptcy Code, or
any similar federal or state statute, by or against any Obligor; (d) an application for the appointment of a receiver of the making
of a general assignment for the benefit of creditors by, or the insolvency of any Obligor; (e) the entry of a judgment against any
Obligor; (f) the issuing of any writ of attachment or writ of garnishment, or the filing of any lien, against the property of any
Obligor; (g) the taking of possession of any substantial part of the property of any Obligor at the instance of any governmental
authority; (h) the dissolution, merger, consolidation, or reorganization of any Obligor; (i) the assignment by any Maker of any
equity in any of the Collateral without the written consent of Bank.
Bank is hereby given a lien upon and a security interest in all property of each Maker now or at any time hereafter in the
possession of Bank in any capacity whatsoever, including but not limited to any balance of share of any deposit, trust, or agent
account as security for the payment of this note and a similar lien upon and security interest in all such property of each Maker as
security for the payment of all other liabilities of each Maker to Bank (including liabilities of each Maker and any other person);
and Bank shall have the same rights as to such property as it has with respect to the Collateral.
If Bank deems itself insecure or upon the occurrence of any default hereunder Bank shall have the remedies of a secured
party, under the Uniform Commercial Code and, without limiting the generality of the foregoing, Bank shall have the right,
immediately and without further action by it, to set off against this note all money owed by Bank in any capacity to each or any
Obligor, whether or not due, and also to set off against all other liabilities of each Maker to Bank all money owed by Bank in any
capacity to each or any Maker; and Bank shall be deemed to have exercised such right of set-off and to have made a charge against
any such money immediately upon the occurrence of such default even though such a charge is made or entered on the books of Bank
subsequent thereto. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold
on a recognized market, the Bank will give Maker reasonable notice of the time and place of any public sale thereof or of the time
after which any private sale or any other intended disposition thereof is to be made. The requirements of reasonable notice shall
be met if such notice is mailed, postage prepaid, to any Maker at the address given below or at any other address shown on the
records of the Bank, at least five days before the time of the sale or disposition. Sale at a wholesale dealers' auction is a
commercially reasonable disposition. Upon disposition of any Collateral after the occurrence of any default hereunder, Maker shall
be and remain liable for any deficiency; and Bank shall account to Maker for any surplus, but Bank shall have the right to apply all
or any part of such surplus (or to hold the same as a reserve against) any and all other liability of each or any Maker to Bank.
The Obligers, jointly and severally, promise and agree to pay all costs and expenses of collection and reasonable attorneys' fee,
including costs, expenses and reasonable attorneys' fees on appeal, if collected by legal proceedings or through an attorney at law.
Maker hereby waives any right to a trial by jury in any civil action arising out of, or based upon, this note or the Collateral.
Bank shall exercise reasonable care in the custody and preservation of the Collateral to the extent required by applicable
statute, and shall be deemed to have exercised reasonable care if it takes such action for that purpose as Maker shall reasonably
request in writing, but no omission to do any act not requested by Maker shall be deemed a failure to exercise reasonable care, and
no omission to comply with any request of Maker shall of itself be deemed a failure to exercise reasonable care. Bank shall not be
bound to take any steps necessary to preserve any rights in the Collateral against prior parties and Maker shall take all necessary
steps for such purposes. Bank or its nominee need not collect interest on or principal of any Collateral or give any notice with
respect to it.
If the Collateral shall at any time become unsatisfactory to Bank, Maker shall within one day after demand pledge and
deposit with Bank as part of the Collateral additional property which is satisfactory to Bank.
Bank shall have the right, which may be exercised at any time whether or not this note is due, to notify the Obligors on any
Collateral to make payment to Bank on any amounts due or to become due thereon. In the event of any default hereunder, Bank shall
thereafter have, but shall not be limited to, the following rights: (i) to pledge or transfer this note and the Collateral so
pledged or transferred, and any pledgee or transferee shall for all purposes stand in the place of Bank hereunder and have all the
rights of Bank hereunder; (ii) to transfer the whole or any part of the Collateral into the name of itself or its nominee; (iii) to
vote the Collateral; (iv) to demand, xxx for, collect, or make any compromise or settlement it deems desirable with reference to the
Collateral; and (v) to take control of any proceeds of Collateral.
I HEREBY CONSENT TO THE ATTACHMENT OR GARNISHMENT OF MY EARNINGS.
No delay or omission on the part of Bank in exercising any right hereunder shall operate as a waiver of such right or of any
other right under this note. Presentment, demand, protest, notice of dishonor and extension of time without notice are hereby waived
by each and every Obligor. Any notice to Maker shall be sufficiently served for all purposes if placed in the mail, postage
prepaid, addressed to or left upon the premises at, the address show below or any other address shown on the Bank's records.
I waive any and all privilege and rights which I may have under Chapter 47, Florida Statutes, relating to venue, as it now
exists or may hereafter be amended. I agree that any action shall be brought in the County in which the Bank's business office is
located as designated above or at which the loan was closed.
JURY WAIVER MAKER AND BANK HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT EITHER OF THEM MAY
HAVE RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION, WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY BASED HEREON, OR ARISING
OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND ANY OTHER DOCUMENT OR INSTRUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO. THIS
PROVISION IS A MATERIAL INDUCEMENT FOR BANK ENTERING INTO THIS AGREEMENT. FURTHER, MAKER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR
AGENT OF BANK, NOR THE BANK'S COUNSEL, HAS REPRESENTED EXPRESSLY OR OTHERWISE THAT BANK WOULD NOT, IN THE EVENT OF SUCH LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. NO REPRESENTATIVE OR AGENT OF THE BANK, NOR BANK'S COUNSEL, HAS THE
AUTHORITY TO WAIVE, CONDITION, OR MODIFY THIS PROVISION.
------------------------------------------------------------------------------------------------------------------------------------
GUARANTY
In addition to the liability as endorsers, which the undersigned hereby assume, for value received and intending to be
legally bound the undersigned (and if more than one, each of them jointly and severally) (a) hereby become surety to the payee of
the within note, its successors, endorsees and assigns, for the payment of the within note and hereby unconditionally guarantee the
payment of the within note and all extensions or renewals thereof and all sums payable under or by virtue thereof, including,
without limiation, all amounts of principal and interest and all expenses (including attorney's fees) incurred in the collection
thereof, the enforcement of rights thereunder or with respect to any security therefor and the enforcement hereof, and waive
presentment, demand, notice of dishonor, protest and all other notices whatsoever, and (b) consent and agree (i) that all or any of
the Collateral may be exchanged, released, surrendered or sold from time to time, (ii) that the payment of the note, or any of the
liabilities of the Maker thereof, may be extended or said note renewed any number of times and for any period (whether or not longer
than the original period of said note); (iii) that the holder of said note may grant any releases, compromises or indulgences with
respect to said note or any extensions or renewals thereof or any security therefor or to any party named thereunder or hereunder
(including but not limited to failure or refusal to exercise one or more of the rights or remedies provided by said note); and (iv)
that any of the provisions of said note may be modified; all without notice to or consent of and without affecting the liability of
the undersigned as endorsers and sureties, and further consent and agree that any of the undersigned may be sued by the holder
hereof with or without joining any of the other endorsers or makers of said note and without first contemporaneously suing any such
other persons, or otherwise seeking or proceeding to collect from them or any of them, and without first or contemporaneously
undertaking to enforce any rights with respect to any security.
------------------------------------------------------------------------------------------------------------------------------------
The undersigned acknowledges having received and read the NOTICE TO CO-SIGNER appearing on the reverse side hereof.
------------------------------------------------------------------------------------------------------------------------------------
_______________________________ (Date) _________________________________________________ (Seal)
_______________________________ (Date) _________________________________________________ (Seal)
_______________________________ (Date) _________________________________________________ (Seal)
Florida Documentary Stamp Tax Required by law in the amount of $____________________________________________________________________
Has Been Paid Or Will Be Paid Directly To The Department Of Revenue Certificate Of Registration # __________________________________
44
EXHIBIT 1.1D
ANY OTHER INDEBTEDNESS
NONE - other than the Stockholder Notes on Exhibit 1.lF
70
45
EXHIBIT 1.1E
LIENS
NONE
71
46
EXHIBIT 1.1F
STOCKHOLDER LOANS
72
47
I. Shareholder/Director Loans Outstanding:
Xxxxx Xxxxxx $ 185,992
Xxxx Xxxxxx 195,992
Xxxx Xxxxxxx 935.992
----------
$1,307.976
73
48
EXHIBIT 2.3
MATERIAL LOSSES
NONE
74
49
EXHIBIT 2.4
PENDING LITIGATION
NONE
75
50
EXHIBIT 2.9
OBLIGOR'S OTHER PLACES OF BUSINESS
76
51
2. Physical Business Locations:
Transportation Safe Contractors, Inc. TIPCO, Inc.
0000 Xxxxxxxxxxxx Xxxxx 0000 Xxxxxxxxxxxx Xxxxx
Xxxxx, XX 00000 Xxxxx, XX 00000
Transportation Safety Contractors of Virginia, Inc. Able Telcom Holding Corp.
000 Xxxxxxxxxxxx Xxxxx 0000 Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000 Xxxx Xxxx Xxxxx, XX 00000
BCD Communications, Inc.
0000 Xxxxxxxxxxxx Xxxxx
Xxxxx, XX 00000
BCD Communications, Inc.
0000 Xxxxxxxxxxxx.Xxxxx
Xxxxx, XX 00000
77
52
EXHIBIT 2.19
ALL SUBSIDIARIES
ABLE TELCOM HOLDING CORPORATION, INC.
TRANSPORTATION SAFETY CONTRACTOR OF VIRGINIA, INC.
TRANSPORTATION SAFETY CONTRACTORS, INC.
BCD COMMUNICATIONS, INC.
H.C. INVESTMENTS, INC.
X.X. XXXXXXX, INC.
78
53
EXHIBIT 3.4(a)
FORM FOR ADVANCES UNDER THE LINE OF CREDIT
79
54
Able Telcom Holding Corporation
Drawing Certificate
Revolving Line of Credit
Certified Eligible Accounts Receivable as of ___________ $__________
Certified Eligible Inventory as of __________ ___________
Available for Line of Credit $__________
LESS: Amount Previously Drawn and Not Repaid ___________
Total Available for Line of Credit as of __________ $__________
Draw Request for $__________
Interest Rate Election (Check one)
Prime Rate __.__% ______
LIBOR __.__%
Margin __.__%
LIBOR Rate __.__% ______
In consideration of your continuing to make available to the undersigned
certain credit accommodations, we certify that the figures presented above
accurately represent the entire amount of Eligible Accounts Receivable owing to
the undersigned and Eligible Inventory of the undersigned; and that such
amounts continue to be pledged to you as collateral security to all Loans owing
by this company to you under Term Loan, Revolving Credit and Security Agreement
dated November 29, 1995, free and clear of all liens and encumbrances except in
your favor. We also certify that Able Telcom Holding Corporation is not in
default of any provision of said Agreement.
ABLE TELCOM HOLDING CORP.
BY:____________________________
AS ITS:________________________
80
55
EXHIBIT 3.4(b)
--------------
FORM FOR ADVANCES UNDER THE EQUIPMENT LOANS
81
56
Able Telcom Holding Corporation
Drawing Certificate
Equipment Facility
Description Equipment to be Purchased:
TOTAL INVOICE FOR EQUIPMENT
TO BE PURCHASED $__________
Advance Rate (%) x__________
Advance Request $__________
Total Advanced under Equipment Facility
to date including this request $__________
In consideration of your continuing to make available to the undersigned
certain credit accommodations, we certify that the figures presented above
accurately represent the total costs for the Equipment to be purchased pursuant
to this advance request. We certify that the equipment described above will
become a portion of the collateral for the Loans as described in the Term Loan,
Revolving Credit and Security Agreement dated November 29, 1995 (the
"Agreement"). In addition, we agree to execute all documentation necessary to
perfect the Bank's lien in accordance with the terms of the Agreement. We also
certify that Able Telcom Holding Corporation is not in default of any provision
of said Agreement.
ABLE TELCOM HOLDING CORPORATION
BY:____________________________
AS ITS:________________________
82
