EXHIBIT 10.3
FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is made and
entered into as of the 22nd day of December, 1999 (this "Amendment"), by and
between XXXXXXXXX MOBILE FUELING, INC., a Florida corporation, XXXXXXXXX REALTY,
INC., a Florida corporation, and XXXXXXXXX WEST, INC., a California corporation
(hereinafter collectively referred to as "Borrower"), and BANKATLANTIC, a
Federal Savings Bank (hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, Borrower and Lender have previously entered into that certain
Amended and Restated Loan Agreement dated as of the 25th day of May, 1999 (the
"Loan Agreement" or the "Agreement"); and
WHEREAS, Lender has previously provided Borrower with a revolving line
of credit loan in the principal amount of up to Seven Million Five Hundred
Thousand and 00/100 Dollars ($7,500,000.00) in accordance with the terms and
provisions of the Loan Agreement; and
WHEREAS, Borrower has requested that Lender increase the existing
revolving line of credit loan by the sum of Two Million Five Hundred Thousand
and 00/100 Dollars ($2,500,000.00) thereby increasing the revolving line of
credit loan to the principal amount of up to Ten Million and 00/100 Dollars
($10,000,000.00); and
WHEREAS, Lender is willing to extend such additional credit to the
Borrower of up to such amount upon the terms and conditions set forth herein;
and
WHEREAS, the parties hereto wish to amend the Loan Agreement in
accordance with the terms and provisions of, and as provided in, this Amendment.
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the loans
or extensions of credit heretofore, now or hereafter made or to be made for the
benefit of the Borrower by the Lender, the parties do hereby agree as follows:
1. The Borrower and the Lender agree that the recitals set forth above
are true, correct, and complete, and are hereby incorporated herein.
2. All capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Loan Agreement.
3. Article 1, Subsection 1.2(f) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(f) "CASH COLLATERAL ACCOUNT": A cash collateral account
pledged by Borrower in favor of Lender, into which all
collections shall be remitted from a lockbox account or from
Borrower, as applicable, into which Borrower or Borrower's
account debtors, as applicable, remit all payments, which
collections shall be applied against the Loan facility balance
in accordance with the terms and provisions of the Security
and Cash Collateral Account Agreement or the Security, Cash
Collateral Account and Lockbox Agreement, as applicable. The
Borrower shall not have access to the Lockbox(s) or the Cash
Collateral Account.
4. Article 1, Subsection 1.2(z) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(z) "REVOLVING NOTE" OR "NOTE": That certain Amended and
Restated Master Revolving Promissory Note in the principal
amount of Ten Million and 00/100 Dollars ($10,000,000.00) from
Borrower to Lender dated as of December 22, 1999, as the same
may be amended, restated, supplemented or extended from time
to time. The Note amends, restates and increases that certain
Consolidation Master Revolving Promissory Note dated as of May
25, 1999, executed by Borrower in favor of Lender in the
principal amount of Seven Million Five Hundred Thousand and
00/100 Dollars ($7,500,000.00).
5. Article 1, Subsection 1.2(ff) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(ff) "SECURITY AGREEMENTS": Collectively, Security Agreements
dated as of December 30, 1997 executed by each Borrower in
favor of Lender, each as amended and reaffirmed by Amendment
to and Reaffirmation of Security Agreement dated as of May 25,
1999, as amended and reaffirmed by Second Amendment to and
Reaffirmation of Security Agreement dated as of December 22,
1999, as each of the same may be amended, restated,
supplemented or extended, from time to time, securing the Note
and all other Indebtedness of Borrower to Lender, which is a
valid first lien on all of the Borrower's accounts, accounts
receivables, inventory, chattel paper, general intangibles,
fixtures, furniture, instruments, equipment and personal
property now owned or hereafter acquired by Borrower and all
proceeds of the foregoing, subject only to the Permitted
Encumbrances (as defined in the Security Agreements).
6. Article 1, Subsection 1.2(gg) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(gg) "SECURITY AND CASH COLLATERAL ACCOUNT AGREEMENT". An
Amended and Restated Security and Cash Collateral Account
Agreement, dated as of December 22, 1999, which amends and
restates that certain Amended and Restated Security and Cash
Collateral Account Agreement dated as of May 25, 1999, as the
same may be
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amended, restated, supplemented or extended, from time to
time, whereby and whereunder payment of all of Borrower's
Receivables shall be deposited into the Cash Collateral
Account to be applied against the Loan facility balance in
accordance with the terms and provisions of said agreement,
unless and until such time as the Security, Cash Collateral
Account and Lockbox Agreement goes into full force and effect.
7. Article 1, Subsection 1.2(hh) of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
(hh) "SECURITY, CASH COLLATERAL ACCOUNT AND LOCKBOX
AGREEMENT". A Security, Cash Collateral Account and Lockbox
Agreement, dated as of December 22, 1999, whereby and
whereunder payment of all of Borrower's Receivables shall be
directed to a lockbox maintained with Lender (the "Lockbox")
to flow through the Cash Collateral Account, and, be applied
against the Loan facility balance in accordance with the terms
and provisions of said agreement, which shall be implemented
in accordance with the terms and provisions of Article 8,
Section 8.37 of this Agreement.
8. Article 2, Section 2.1 of the Loan Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
2.1 REVOLVING LOAN. Provided there does not exist an Event of
Default, and no event with which notice or lapse of time or
both would become such an Event of Default, and subject to the
terms and provisions of this Agreement, Lender will, under the
Note, lend or advance for the account of Borrower from time to
time, and, Borrower may borrow, repay and re-borrow (provided
that unless Borrower intends to pay and satisfy the Loan in
full, Borrower shall not reduce the outstanding principal
balance under the Loan to a sum of less than One Thousand and
00/100 Dollars ($1,000.00)) such amounts as may be required
for the purpose of providing working capital to the Borrower,
not exceeding in the aggregate an amount equal to (i)
eighty-five percent (85%) of Eligible Receivables, less such
reserves as Lender, in its sole discretion elects to
establish, provided further that a Receivable may be devalued
in such amount as shall be determined by Lender in its sole
discretion due to "Dilution" which is defined as and is the
result of non-cash credits posted against the Receivable which
result in payment or other satisfaction of all or any portion
of the Receivable for reasons other than full payment of the
Receivable in cash (the "Borrowing Base"); or, the sum of Ten
Million and 00/100 Dollars ($10,000,000.00), whichever is
less. It is acknowledged that the Borrowing Base under the
Loan may be adjusted during the term of the Loan by Lender at
any time, in its sole discretion, based upon the result of the
audits and collateral examinations conducted during the term
of the Loan. The aggregate amounts outstanding under the Loan
shall not at any time exceed the amount provided above, and in
the event the amount outstanding at any time exceeds the
permitted amount, said excess amount shall bear interest at
the
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rate set forth in the Note and shall be due and payable in
full on DEMAND.
9. Article 8, Section 8.6 of the Agreement is hereby amended and
restated so that, from and after the date hereof, it shall read in its entirety
as follows:
8.6 Xxxxxxxxx Mobile shall maintain a net worth of not less
than Four Million Seventy-Seven Thousand and 00/100 Dollars
($4,077,000.00) from October 31, 1999 until January 31, 2000,
and not less than Four Million Three Hundred Ninety-Two
Thousand and 00/100 Dollars ($4,392,000.00) from January 31,
2000 and thereafter, such requirement to be tested at the end
of each quarter of each fiscal year of Xxxxxxxxx Mobile. The
minimum net worth requirements shall be increased at the end
of each quarter in each fiscal year of Xxxxxxxxx Mobile
thereafter in an amount to be determined by Lender based upon
Xxxxxxxxx Mobile's annual projection for the period in
question.
10. The following Article 8, Section 8.37 is hereby added to the
Agreement, effective from and after the date hereof:
8.37 Borrower does hereby acknowledge that in the event
Borrower at any time does not comply with or achieve any of
the financial covenants or any other covenants set forth in
this Agreement, Lender at Lender's sole option, shall have the
right to implement the Security, Cash Collateral Account and
Lockbox Agreement, such that at said time, the Security, Cash
Collateral Account and Lockbox Agreement shall become
effective and replace and supercede the Security and Cash
Collateral Account Agreement. Borrower shall comply with all
terms and provisions of the Security, Cash Collateral Account
and Lockbox Agreement from and after the date of
implementation of the same.
11. The Borrower represents and warrants to the Lender that (a) each
Borrower has previously furnished Lender with true and correct copies of its
Articles of Incorporation and By-laws, and all amendments thereto through the
date hereof, as in effect on the date hereof, and (b) the Board of Directors of
each Borrower has approved this Amendment and the execution hereof by the
undersigned officer of each Borrower.
12. WAIVER AND RELEASE. AS A MATERIAL INDUCEMENT FOR THE LENDER TO
EXECUTE THIS AMENDMENT, EACH BORROWER DOES HEREBY RELEASE, WAIVE, DISCHARGE,
COVENANT NOT TO XXX, ACQUIT, SATISFY AND FOREVER DISCHARGE THE LENDER, ITS
OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS AND ITS AFFILIATES AND
ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS, COUNTERCLAIMS, DEFENSES, ACTIONS,
CAUSES OF ACTION, SUITS, CONTROVERSIES, AGREEMENTS, PROMISES AND DEMAND
WHATSOEVER IN LAW OR IN EQUITY WHICH EACH BORROWER EVER HAD, NOW HAS, OR WHICH
ANY PERSONAL REPRESENTATIVE, SUCCESSOR, HEIR OR ASSIGN OF EACH BORROWER
HEREAFTER CAN, SHALL OR MAY HAVE AGAINST THE LENDER, ITS OFFICERS,
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DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, AND ITS AFFILIATES AND ASSIGNS, FOR,
UPON OR BY REASON OF ANY MATTER, CAUSE OR THING WHATSOEVER, THROUGH THE DATE
HEREOF. EACH BORROWER FURTHER EXPRESSLY COVENANTS WITH AND WARRANTS UNTO THE
LENDER AND ITS AFFILIATES AND ASSIGNS, THAT THERE EXIST NO CLAIMS,
COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF OFFSET AGAINST THE
LENDER OR THE OBLIGATION OF EACH BORROWER TO PAY THE LENDER ALL AMOUNTS OWING
UNDER THE NOTE, THE LOAN AGREEMENT AND ALL ASSOCIATED LOAN DOCUMENTS AS AND WHEN
THE SAME BECOME DUE AND PAYABLE. NOTWITHSTANDING THE ABOVE, THE PARTIES DO
HEREBY ACKNOWLEDGE THAT ANY DEPOSIT ACCOUNT(S) OF BORROWER MAINTAINED WITH
LENDER ARE SUBJECT TO THE TERMS AND PROVISIONS OF ANY AGREEMENT(S) RELATED TO
THOSE ACCOUNT(S), PROVIDED HOWEVER, THAT BORROWER IS UNAWARE OF ANY CLAIMS
CONCERNING THOSE ACCOUNT(S) AT THIS TIME.
13. REAFFIRMATION BY BORROWER. THE BORROWER ACKNOWLEDGES AND REAFFIRMS
THAT ALL WARRANTIES, REPRESENTATIONS, AFFIRMATIVE COVENANTS AND NEGATIVE
COVENANTS SET FORTH IN THE LOAN AGREEMENT REMAIN IN FULL FORCE AND EFFECT ON THE
DATE HEREOF AS IF MADE ON THE DATE HEREOF.
14. AMENDED AGREEMENT. THIS AGREEMENT AMENDS THE LOAN AGREEMENT, AND
THE BORROWER ACKNOWLEDGES AND AGREES THAT THE SECURITY INTERESTS, RIGHTS,
DUTIES, AND OBLIGATIONS OF THE BORROWER AND THE LENDER CREATED BY THE LOAN
AGREEMENT ARE NOT EXTINGUISHED, BUT ARE REAFFIRMED AND REMAIN IN FULL FORCE AND
EFFECT AS PROVIDED IN THE LOAN AGREEMENT. IN THE EVENT OF ANY CONFLICT BETWEEN
THE TERMS AND PROVISIONS OF THE LOAN AGREEMENT AND THE TERMS AND PROVISIONS OF
THIS AMENDMENT, THE TERMS AND PROVISIONS OF THIS AMENDMENT SHALL CONTROL AND
PREVAIL.
INTENTIONALLY LEFT BLANK
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WAIVER OF JURY TRIAL. THE PARTIES DO HEREBY MUTUALLY, VOLUNTARILY,
INTENTIONALLY, KNOWINGLY AND WILLINGLY WAIVE THEIR RIGHT TO A TRIAL BY JURY OF
ANY AND ALL CLAIMS MADE AMONG THEM, WHETHER NOW EXISTING OR ARISING IN THE
FUTURE, INCLUDING, WITHOUT LIMITATION, ANY AND ALL CLAIMS, DEFENSES,
COUNTERCLAIMS, CROSS-CLAIMS, THIRD PARTY CLAIMS AND INTERVENOR'S CLAIMS, WHETHER
ARISING FROM OR RELATED TO THE NEGOTIATION, EXECUTION AND PERFORMANCE OF THE
TRANSACTIONS TO WHICH THE LOAN AGREEMENT AS AMENDED BY THIS AMENDMENT AND THE
LOAN DOCUMENTS, RELATE.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
Signed, sealed and delivered in BORROWER :
the presence of:
XXXXXXXXX MOBILE FUELING, INC., a Florida
corporation
[ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- --------------------------------------------------------
XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
XXXXXXXXX REALTY, INC., a Florida corporation
[ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- --------------------------------------------------------
XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
XXXXXXXXX WEST, INC., a California corporation
[ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- --------------------------------------------------------
XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
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LENDER:
BANKATLANTIC, a Federal Savings Bank
[ILLEGIBLE] By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------- --------------------------------------------------------
Xxxxxxx X. Xxxxx, Vice President
STATE OF GEORGIA
COUNTY OF CAMDEN
THE FOREGOING INSTRUMENT WAS EXECUTED BEFORE ME, the undersigned, a
Notary Public in and for the State of Georgia, this 22 day of December, 1999,
by XXXXXX X. XXXXXXX, as Vice President of Finance of and on behalf of each of
XXXXXXXXX MOBILE FUELING, INC., a Florida corporation, XXXXXXXXX REALTY, INC., a
Florida corporation, and XXXXXXXXX WEST, INC., a California corporation, who 9
is personally known to me or 9 produced his driver's license as identification.
[SEAL]
/s/ Xxxxxx Xxxxxx
---------------------------------------
Notary Public - State of Georgia
Print Name: XXXXXX XXXXXX
---------------------------
My Commission Expires:
----------------
Commission Number:
--------------------
STATE OF GEORGIA
COUNTY OF CAMDEN
THE FOREGOING INSTRUMENT WAS EXECUTED BEFORE ME, the undersigned, a
Notary Public in and for the State of Georgia, this 22 day of December, 1999,
by XXXXXXX X. XXXXX, as Vice President of and on behalf of BANKATLANTIC, a
Federal Savings Bank, who 9 is personally known to me or 9 produced his driver's
license as identification.
[SEAL]
/s/ Xxxxxx Xxxxxx
---------------------------------------
Notary Public - State of Georgia
Print Name: XXXXXX XXXXXX
---------------------------
My Commission Expires:
----------------
Commission Number:
--------------------
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AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT is made and entered into as of
the 25th day of May, 1999, by and between XXXXXXXXX MOBILE FUELING, INC., a
Florida corporation ("Xxxxxxxxx Mobile"), XXXXXXXXX REALTY, INC., a Florida
corporation, and XXXXXXXXX WEST, INC., a California corporation (hereinafter
collectively referred to as "Borrower"), and BANKATLANTIC, a Federal Savings
Bank (hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, Borrower desires to obtain a revolving line of credit from
Lender in the amount of up to Seven Million Five Hundred Thousand and 00/100
Dollars ($7,500,000.00) in order to provide working capital to the Borrower,
and, Lender is willing to extend such credit to the Borrower of up to such
amount upon the terms and conditions set forth herein (the "Revolving Loan" or
the "Loan");
WHEREAS, in connection with existing line of credit loans in the
current aggregate principal amount of Five Million Three Hundred Fifty Thousand
and 00/100 Dollars ($5,350,000.00) currently outstanding and due and owing by
the Borrower to the Lender, Borrower and Lender entered into that certain Loan
Agreement dated as of the 30th day of December, 1997, as amended by First
Amendment to Loan Agreement dated as of the 29th day of May, 1998, as further
amended by Second Amendment to Loan Agreement dated as of the 26th day of
January, 1999 (collectively, the "Original Loan Agreement"); and
WHEREAS, the parties hereto wish to amend and restate the Original Loan
Agreement in its entirety in accordance with the terms and provisions of and as
provided herein.
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the loans
or extensions of credit heretofore, now or hereafter made or to be made for the
benefit of the Borrower by the Lender, the parties do hereby agree as follows:
Article 1
RECITALS AND DEFINITIONS
1.1 RECITALS. The foregoing recitals are acknowledged by the parties to
be true and correct, and are incorporated herein by reference.
1.2 DEFINITIONS. As used in this Agreement, the terms listed below
shall have the following meanings:
(a) "ADVANCE": A disbursement by the Lender of a portion of
the Revolving Loan proceeds in accordance with the terms and provisions
of this Agreement.
(b) "AGREEMENT" or "LOAN AGREEMENT": This Amended and Restated
Loan Agreement.
(c) "BORROWER": Collectively, XXXXXXXXX MOBILE FUELING, INC.,
a Florida corporation, XXXXXXXXX REALTY, INC., a Florida corporation,
and XXXXXXXXX WEST, INC., a California corporation.
(d) "BORROWER'S COUNSEL OPINION LETTER": A letter from
Borrower's Counsel, in form and substance satisfactory to Lender and
Lender's Counsel, opining as to certain matters concerning the Loan.
(e) "BUSINESS DAYS": Days upon which the Lender is open for
normal business.
(f) "CASH COLLATERAL ACCOUNT". A cash collateral account
pledged by Borrower in favor of Lender, into which all collections
shall be remitted from a lockbox account or from Borrower, as
applicable, into which Borrower's account debtors remit all payments,
which collections shall be applied against the Loan facility balance in
accordance with the terms and provisions of the Security, Cash
Collateral Account and Lockbox Agreement. The Borrower shall not have
access to the Lockbox(s) or the Cash Collateral Account.
(g) "CLOSING": The time of the execution and delivery of this
Agreement by Borrower and Lender.
(h) "CODE": The Internal Revenue Code of 1986, as amended from
time to time, and applicable Department of Treasury regulations
thereunder.
(i) "CREDIT FACILITY LETTER": That certain letter executed by
and between Lender and Borrower dated April 28, 1999, and all
amendments thereto, the terms and conditions of which are hereby
incorporated by reference herein, but in the event of any conflict or
discrepancy between the terms of this Agreement and the Credit Facility
Letter, the terms of this Agreement shall control.
(j) "DOLLARS" OR "$": United States Dollars.
(k) "ELIGIBLE RECEIVABLES": Those Receivables which are
Receivables of Xxxxxxxxx Mobile arising out of sales of tangible
personal property made by Xxxxxxxxx Mobile or services rendered by
Xxxxxxxxx Mobile in the ordinary course of its business, which are no
more than ninety (90) days old from the invoice date, according to the
original terms of sale, and, the payment of which is not in dispute and
in which the Lender has a first priority security interest, provided
however, that if fifty (50%) percent or more of the Receivables from
any account debtor are more than ninety (90) days old, all of said
account debtor's Receivables shall be deemed ineligible. The Lender may
treat any receivable as ineligible: (i) if any warranty contained in
this or any related agreement is breached with respect thereto; (ii) if
the customer or account debtor has disputed liability or made any claim
with respect to the
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receivable or the merchandise covered thereby or with respect to any
other receivable due from said customer to Xxxxxxxxx Mobile; (iii) if
the customer or account debtor has filed a petition for bankruptcy or
any other application for relief under the Bankruptcy Act, assigned for
the benefit of creditors, or if any petition or any other application
for relief under the Bankruptcy Act has been filed against the said
customer or account debtor, or if the customer or account debtor has
failed, suspended business, become insolvent, or had or suffered a
receiver or trustee to be appointed for any of its assets or affairs;
(iv) if the customer or account debtor is located outside the United
States; (v) if the receivable is a government receivable in which the
Lender will not be able to perfect its lien under the Federal
Assignment of Claims Act for any reason whatsoever, excepting for
receivables due and owing from the United States Post Office which
shall constitute eligible receivables subject to the other exclusions
set forth in this paragraph; (vi) if the Receivable is offset, in whole
or in part, by a credit due and owing from Xxxxxxxxx Mobile to that
account debtor; (vii) if the Receivable is due and owing from an
account debtor who is also a creditor of Xxxxxxxxx Mobile; (viii) if
the Receivable represents sums due and owing for work and/or service
currently being rendered by Xxxxxxxxx Mobile but not yet completed by
Xxxxxxxxx Mobile; (ix) if the Receivable is due and owing from an
affiliate corporation or related entity of Xxxxxxxxx Mobile or
represents an intercompany account; (x) if the Receivable represents a
consignment sale or warranty work; (xi) if the Receivable represents a
C.O.D. sale; (xii) if the Receivable represents sums due and owing from
an employee of Xxxxxxxxx Mobile; (xiii) if the Receivable represents
retainage due and owing to Xxxxxxxxx Mobile; (xiv) if the Receivable
represents a Xxxx and Hold Invoice for items which have been billed and
are not yet due and payable; (xv) if the Receivable represents the
billing for inventory which has not been delivered to said account
debtor; (xvi) if the Receivable arises from a progress billing for work
not yet completed and delivered to the customer; or (xvii) if the
Lender believes, in its credit judgment in Lender's reasonable
discretion, that collection of such Receivable is insecure or that it
may not be paid by reason of financial inability to pay or otherwise or
that such Receivable is not suitable for use as collateral hereunder.
(l) "ERISA": The Employee Retirement Income Security Act of
1974, as amended from time to time.
(m) "EVENT OF DEFAULT": The occurrence of any one or more of
the Events of Default described in Article 9 hereof.
(n) "FINANCING STATEMENTS": Financing Statements from Borrower
to Lender to perfect Lender's security interest in the property
described in the Security Agreements.
(o) "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP":
Those principles of accounting set forth in opinions of the Financial
Accounting Standards Board of the American Institute of Public
Accountants or which have other substantial authoritative support and
are applicable in the circumstances as of the date of any report
required herein or as of the date of an application of such principles
as required herein.
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(p) "GOVERNMENTAL AUTHORITY": Any federal, state, county,
municipal or other governmental department, commission, board, bureau,
court, agency, or any instrumentality of any other governmental entity.
(q) "GOVERNMENTAL REQUIREMENTS": Any law, statute, code,
ordinance, order, rule, regulation, judgment, decree, writ, injunction,
franchise, permit, certificate, license, authorization, or other
direction or requirement of any Governmental Authority now existing or
hereafter enacted, adopted, promulgated, entered or issued applicable
to the Loan or to the Borrower.
(r) "INDEBTEDNESS": Collectively, all of each Borrowers'
presently existing or hereafter created or assumed obligations to the
Lender, including without limitation, obligations for borrowed money,
notes payable and drafts accepted representing extensions of credit
(whether or not representing obligations for borrowed money),
obligations representing the Loan and any modifications or renewals
thereof, obligations representing indebtedness to the Lender whether or
not assumed, secured or unsecured, however and wherever incurred,
acquired or evidenced, whether primary or secondary, direct or
indirect, absolute or contingent, joint or several or due or to become
due, including without limitation all such obligations, liabilities and
all indebtedness and obligations now or hereafter owed by each Borrower
to Lender, its affiliates, successors and/or assigns.
(s) "INITIAL ADVANCE": The first Advance of the Revolving Loan
proceeds.
(y) "LANDLORD'S WAIVER OF LIEN AGREEMENT": Waiver Agreements
from all Landlords where any Borrower leases business properties
waiving the Landlord's lien at that location to the lien and effect of
the Loan.
(u) "LEASES: Leases for all locations where each Borrower
leases property in connection with its business operations.
(v) "LOAN ACCOUNT". Borrower's account on the books of the
Lender in which Advances will be recorded, as well as payments made on
the Revolving Loan and other appropriate debits and credits as provided
in this Agreement.
(w) "LOAN DISBURSEMENT ACCOUNT". The account established
pursuant to Article 3, Section 3.4 herein, maintained with Lender under
account no. 055927360.
(x) "LOAN DOCUMENTS": This Agreement, the Revolving Note, the
Security Agreements, the Security, Cash Collateral Account and Lockbox
Agreement, and all other associated loan documents executed in
connection with the making of the Loan (and any modification, renewal
or extension thereof).
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(y) "MATURITY DATE": As to the Loan as evidenced by the Note,
April 30, 2001, upon which date the entire principal balance and
accrued interest and all other applicable charges under the Loan shall
become due and payable in full.
(z) "REVOLVING NOTE OR "NOTE": A Consolidation Master
Revolving Promissory Note in the principal amount of Seven Million Five
Hundred Thousand and 00/100 Dollars ($7,500,000.00) from Borrower to
Lender dated as of even date herewith. The Note consolidates a
Modification Master Revolving Promissory Note in the principal amount
of Five Million and 00/100 Dollars ($5,000,000.00), a Modification
Master Revolving Promissory Note in the principal amount of Three
Hundred Fifty Thousand and 00/100 Dollars ($350,000.00) and a Master
Revolving Promissory Note in the principal amount of Two Million One
Hundred Fifty Thousand and 00/100 Dollars ($2,150,000.00) all dated as
of even date herewith.
(aa) "PERSON": As the case may be, any corporation, natural
person, firm, joint venture, partnership, trust, unincorporated
organization and government, or any department or agency of any
government.
(bb) "PLAN": Any pension plan which is governed by the terms
and provisions of Title IV of ERISA and in respect of which the
Borrower or a commonly controlled entity of the Borrower is an
"Employer" (as defined in Section 407(d)(7) of ERISA.
(cc) "PRIME RATE": The interest rate announced by the Lender
from time to time as its prime rate, which rate is purely discretionary
and is not necessarily the best or lowest rate charged borrowing
customers of the Lender.
(dd) "RECEIVABLES": All accounts, accounts receivable, general
intangibles, contract rights and other obligations of any kind, whether
now owned or hereafter acquired by Xxxxxxxxx Mobile and all proceeds of
the foregoing and all rights now or hereafter existing in and to all
security agreements, leases and other contracts security or otherwise
relating to any such accounts, contract rights, chattel paper
instruments, general intangibles and obligations and all proceeds,
profits, deposits, products and accessions of and to all of the
foregoing.
(ee) "REPORTABLE EVENT": Any of the events set forth in
Section 4043(b) of ERISA or the regulations thereunder.
(ff) "SECURITY AGREEMENTS": Collectively, Security Agreements
dated as of December 30, 1997 executed by each Borrower in favor of
Lender, each amended and reaffirmed by an Amendment to and
Reaffirmation of Security Agreement executed by each Borrower in favor
of Lender, securing the Note and all other Indebtedness of Borrower to
Lender, which is a valid first lien on all of the Borrower's accounts,
accounts receivables, inventory, chattel paper, general intangibles,
fixtures, furniture, instruments, equipment and personal property now
owned or hereafter acquired by Borrower and all proceeds of the
5
foregoing, subject only to the Permitted Encumbrances (as defined in
the Security Agreements).
(gg) "SECURITY AND CASH COLLATERAL ACCOUNT AGREEMENT". An
Amended and Restated Security and Cash Collateral Account Agreement
whereby and whereunder payment of all of Borrower's Receivables shall
be deposited into the Cash Collateral Account to be applied against the
Loan facility balance in accordance with the terms and provisions of
said agreement, until such time as the Security, Cash Collateral
Account and Lockbox Agreement goes into full force and effect.
(hh) "SECURITY, CASH COLLATERAL ACCOUNT AND LOCKBOX
AGREEMENT". A Security, Cash Collateral Account and Lockbox Agreement
whereby and whereunder payment of all of Borrower's Receivables shall
be directed to a lockbox maintained with Lender (the "Lockbox") to flow
through the Cash Collateral Account, and, be applied against the Loan
facility in accordance with the terms and provisions of said agreement.
(ii) "SOLVENT": That, at the time of determination, (i) the
fair market value of the Borrower's assets (both at fair valuation and
at present fair saleable value on an orderly basis) is in excess of the
total amount of its liabilities, including contingent obligations; (ii)
it is then able and expects to be able to pay its debts as they mature;
and (iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
1.3 OTHER DEFINITIONAL PROVISIONS. (a) The terms "material" and
"materially" shall have the meanings ascribed to such terms under Generally
Accepted Accounting Principles as such would be applied to the business of the
Borrower, except as the context shall clearly otherwise set forth; (b) all of
the terms defined in this Agreement shall have such defined meanings when used
in other documents issued under, or delivered pursuant to, this Agreement,
unless the context shall otherwise require; (c) all terms defined in this
Agreement in the singular shall have comparable meanings when used in the
plural, and vice versa; (d) accounting terms to the extent not otherwise defined
shall have the respective meanings given them under, and shall be construed in
accordance with Generally Accepted Accounting Principles; (e) the words
"hereby", "hereto", "hereof", "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; (f) the masculine and neuter genders
are used herein and whenever used shall include the masculine, feminine and
neuter as well; and (g) whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the heirs, personal
representatives, successors and assigns of such parties unless the context shall
expressly provide otherwise.
Article 2
THE LOAN
2.1 REVOLVING LOAN. Provided there does not exist an Event of Default,
and no event with which notice or lapse of time or both would become such an
Event of Default, and subject to the terms and provisions of this Agreement,
Lender will, under the Note, lend or advance for the account
6
of Borrower from time to time, and, Borrower may borrow, repay and re-borrow
(provided that unless Borrower intends to pay and satisfy the Loan in full,
Borrower shall not reduce the outstanding principal balance under the Loan to a
sum of less than One Thousand and 00/100 Dollars ($1,000.00)) such amounts as
may be required for the purpose of providing working capital to the Borrower,
not exceeding in the aggregate an amount equal to (i) eighty-five percent (85%)
of Eligible Receivables, less such reserves as Lender, in its sole discretion
elects to establish, provided further that a Receivable may be devalued in such
amount as shall be determined by Lender in its sole discretion due to "Dilution"
which is defined as and is the result of non-cash credits posted against the
Receivable which result in payment or other satisfaction of all or any portion
of the Receivable for reasons other than full payment of the Receivable in cash
(the "Borrowing Base"); or, the sum of Seven Million Five Hundred Thousand and
00/100 Dollars ($7,500,000.00), whichever is less. It is acknowledged that the
Borrowing Base under the Loan may be adjusted during the term of the Loan by
Lender at any time, in its sole discretion, based upon the result of the audits
and collateral examinations conducted during the term of the Loan. The aggregate
amounts outstanding under the Loan shall not at any time exceed the amount
provided above, and in the event the amount outstanding at any time exceeds the
permitted amount, said excess amount shall bear interest at the rate set forth
in the Note and shall be due and payable in full on DEMAND.
2.2 AUDIT FEES. The Audit Fee due and owing from Borrower to Lender in
connection with the audits set forth in Article 8, Section 8.5 herein shall be
based upon a charge of Four Hundred Twenty and 00/100 Dollars ($420.00) per day,
plus expenses, which per diem rate is subject to change at any time.
2.3 LOAN ACCOUNT. All Advances and paydowns hereunder and under the
Revolving Note shall be recorded by Lender in the Loan Account.
2.4 LOAN DOCUMENTS. Borrower's obligation to repay the Loan is
evidenced by the Note delivered simultaneously herewith, which sets forth the
method for payment, rates of interest, and such further terms as are therein set
forth. The repayment of the Note and the Indebtedness is to be secured by the
following documentation, which documents Borrower shall deliver, or cause to be
delivered, to Lender simultaneously with the delivery of the Note and which
documents must be received prior to any funding hereunder:
(a) The Security Agreements, in form and substance
satisfactory to Lender and Lender's counsel.
(b) Financing statements filed in such public offices as
Lender and Lender's counsel may deem necessary to perfect a security
interest in any of the Security Agreements.
(c) The Security and Cash Collateral Agreement and the
Security, Cash Collateral Account and Lockbox Agreement, in form and
substance satisfactory to Lender and Lender's Counsel.
7
(d) Borrower's Counsel Opinion Letter, in form and substance
satisfactory to Lender and Lender's Counsel, from Borrower's counsel
opining as to certain matters concerning the Loan.
(e) Such policies of liability insurance, worker's
compensation insurance and hazard insurance (with fire extended
coverage, vandalism and mischief protection) as the Lender may
reasonably request, subject to a standard loss-payee's and additional
insured's endorsements, as applicable, in the Lender's favor, and
providing at least thirty (30) days prior written notice of any
cancellation, modification or non-renewal of the insurance coverage.
(f) Incumbency Certificate and Resolutions of the directors of
each Borrower authorizing the Loan, and the execution of all Loan
Documents related thereto.
(g) Certificates of Good Standing evidencing that each
Borrower is in good standing under the laws of the State of Florida and
the State of California, as applicable, and in each other state in
which it is required to be qualified to conduct business.
(h) Certified copy of Articles of Incorporation and By-Laws of
each Borrower.
(i) Evidence of compliance by each Borrower with the Florida
Fictitious Name Act, if and as applicable.
(j) Certified copies of the Leases in connection with all
leased premises of each Borrower.
(k) Landlord's Waiver of Lien Agreement(s) executed by all
landlords at business locations of Borrower waiving the landlord's lien
at such locations to the lien and effect of the Loan.
(l) Consolidated financial statements of the Borrower, in form
and substance acceptable to Lender.
(m) Such other documentation as may be required by Lender or
Lender's Counsel.
Article 3
MANNER OF MAKING LOAN ADVANCES
3.1 ADVANCE REQUEST. Each Advance to the Borrower under the Revolving
Loan shall be made by the Lender upon Lender's initiation of said Advance or
upon written request of the Borrower stating the date on which the Advance is to
be made (the "Borrowing Date"), and the principal amount of the Advance
requested, delivered at least one (1) day prior to the date on which the Advance
is to be made. Any notice delivered under this sub-section shall be irrevocable
and bind the Borrower to consummate the Advance on the Borrowing Date.
8
3.2 INTENTIONALLY DELETED.
3.3 BORROWING BASE CERTIFICATE. Borrower shall provide to Lender a
Borrowing Base Certificate in form and content acceptable to Lender (the form of
said Borrowing Base Certificate being appended hereto and made a part hereof as
Exhibit "A") not less than monthly within fifteen (15) days of the end of each
monthly period in each fiscal year of Borrower.
3.4 LOAN DISBURSEMENT ACCOUNT. The proceeds of any Advance to the
Borrower shall, on the date of such Advance, be deposited in immediately
available funds in the Loan Disbursement Account, which shall be a demand
deposit account maintained with Lender.
Article 4
INTEREST
All interest under the Loan shall be computed on the basis of a year
containing three hundred sixty (360) days for the actual number of days elapsed.
Interest shall be due and payable in accordance with the terms and provisions of
the Note, and interest shall accrue at the rate of interest provided in the Note
for each Advance thereunder. Payments of principal, interest, fees or other
amounts made by the Borrower shall be made to the Lender at the Lender's offices
located at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx
00000, for the account of Lender, in Dollars and in immediately available funds
before 2:00 p.m. (Florida time) on the date such payment is due. The Lender
shall deem any payment made by or on behalf of the Borrower that is not made in
immediately available funds and prior to 2:00 p.m. (Florida time) to be a
non-conforming payment, which shall not be deemed to be received by the Lender
until the later of (a) the time such funds become available funds or (b) the
next Business Day. Any non-conforming payment may constitute or become an Event
of Default hereunder. Interest shall continue to accrue on any principal as to
which a non-conforming payment is made until the later of (a) the date such
funds become available funds or (b) the next Business Day. All payments to be
made by the Borrower on account of principal, interest and/or fees, shall be
made without diminution, setoff, recoupment or counterclaim.
Article 5
CONDITIONS PRECEDENT TO FIRST ADVANCE AND ADDITIONAL ADVANCES
5.1 The obligations of Lender to make the Initial Advance and all
additional Advances under the Revolving Loan are subject to the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. The representations,
covenants and warranties made by Borrower in this Agreement shall be
true and correct on and as of the date of such Advance.
9
(b) NO DEFAULT. There shall be no default, and no event which
with notice or lapse of time or both would become an Event of Default,
under this Agreement, the Revolving Note, any of the Security
Agreements, or any other Loan Document.
(c) NO MATERIAL ADVERSE CHANGE. There shall have been no
material adverse change in the business or financial condition of any
Borrower or in the value of the Collateral (as said term is defined in
the Security Agreements) since January 31, 1999.
(d) LIEN AND JUDGMENT SEARCHES. Lien and judgment searches of
each Borrower shall have been conducted with the Florida Secretary of
State and in any other state or jurisdiction as shall be required by
Lender, which must result in findings satisfactory to Lender, in
Lender's sole discretion.
(e) CREDIT FACILITY LETTER. All terms and provisions of the
Credit Facility Letter shall have been complied with in full.
(f) DELIVERY OF LOAN DOCUMENTS. All of the Loan Documents
shall have been duly executed and delivered to Lender, and the
Financing Statements shall have been recorded in the appropriate public
offices.
(g) DELIVERY OF OTHER DOCUMENTS. Borrower shall have
delivered, or caused to be delivered to Lender, the other documents
required under Article 2 hereof, and shall have also delivered or
caused to be delivered to Lender, the following:
(i) Annual audited financial statements of the
Borrower, in form and substance acceptable to the Lender,
prepared in accordance with GAAP, by certified public
accountant(s) acceptable to the Lender.
(ii) Report on Receivables evidencing that there are
adequate Eligible Receivables to support the Initial Advance
or additional Advances, as applicable.
(iii) Such policies of liability insurance, worker's
compensation insurance and hazard insurance (with fire
extended coverage, vandalism and mischief protection) as
Lender may reasonably request subject to a standard
loss-payee's and additional insured's endorsements, as
applicable, in the Lender's favor.
(iv) Such other certification or documentation to be
executed by Borrower as may be reasonably required by Lender
or Lender's counsel pertaining to the closing of the Initial
Advance and all subsequent Advances of the proceeds hereunder,
it being understood that all such items shall be promptly
delivered prior to Lender's obligation to making further
Advances hereunder.
10
Article 6
USE OF LOAN PROCEEDS; MARGIN STOCK
The proceeds of the Revolving Loan shall be used to support the
Borrower's general working capital requirements. Borrower does not own any
margin securities and no portion of any Advance and, no portion of the Loan,
will be used for the purpose of reducing or retiring any indebtedness which was
originally incurred by Borrower to purchase any margin securities, and neither
the making of any and all loans and Advances nor the use of the proceeds thereof
will violate or be inconsistent with the provisions of Regulations G, T, U or X
of the Board of Governors of the Federal Reserve Systems of the United States.
Article 7
REPRESENTATIONS AND WARRANTIES
7.1 Borrower represents and warrants to Lender that, so long as credit
remains available to the Borrower or there is any outstanding balance due under
the Note, as secured by the Loan Documents:
(a) Borrower has the power to engage in all the transactions
contemplated by this Agreement and has full power, authority and legal
right to execute and deliver, and to comply with its respective
obligations under the Loan Documents, which documents constitute the
legally binding obligations of each Borrower enforceable against each
Borrower in accordance with their respective terms.
(b) To the best of its knowledge and belief, there is no suit,
action, or proceeding pending or threatened against or affecting any
Borrower, before or by any court, administrative agency or other
Governmental Authority which brings into question the validity of the
transactions contemplated hereby or would interfere with the ability of
any Borrower to comply with the terms hereof.
(c) Each Borrower is in good standing within the State in
which it is incorporated. Borrower, prior to closing, will deliver to
Lender: (i) resolutions certified as true by the secretary of each
Borrower authorizing such Borrower's participation in connection with
the transactions contemplated herein and execution of the Note and
related Loan Documents, (ii) incumbency certificates of each Borrower,
(iii) certified copies of the Articles of Incorporation and By-laws of
each Borrower, and (iv) corporate Certificates of Good Standing of each
Borrower.
(d) Except as otherwise disclosed on Exhibit "B" appended
hereto and made a part hereof, during the one (1) year period preceding
the date of closing, no Borrower has been known as or used any
corporate of fictitious names other than the corporate name of such
Borrower on the Closing date. All trade names or styles under which the
Borrower sells inventory or equipment or creates receivables or to
which instruments in payment of Receivables are made payable, are set
forth on Exhibit "B".
11
(e) Each Borrower owns or possesses all intellectual property
required to conduct its businesses as now and presently planned to be
conducted without, to its knowledge, conflict with the rights of
others.
(f) Each Borrower is Solvent after giving effect to the
transactions contemplated by the Loan Documents.
(g) Neither the execution nor delivery of any of the Loan
Documents, nor any other document relating hereto, will conflict with
or result in a breach of any of the provisions of the Charter, Articles
of Incorporation or By-Laws, where applicable, of any Borrower, or of
any applicable law, judgment, order, writ, injunction, decree, rule or
regulation of any court, administrative agency or other Governmental
Authority, or of any agreement or other instrument to which any
Borrower is a party or by which any of them is bound or constitute a
default under any thereof, or result in the creation or imposition of
any lien, charge or encumbrance upon any property of any Borrower,
other than those created under this transaction in favor of Lender.
(h) No consent, approval or other authorization of or by any
Governmental Authority is required in connection with the execution or
delivery by Borrower of the Loan Documents, or compliance with the
provisions hereof or thereof.
(i) There are no actions, suits or proceedings pending or, to
the knowledge of Borrower, overtly threatened against or affecting the
Borrower at law or in equity, or before or by any Federal, State,
Provincial, municipal or other Governmental Authority, which involve
any of the transactions herein contemplated or the possibility of any
judgment or liability which would result in any material adverse change
in the business, operations, properties or assets or in the financial
condition of any Borrower. No Borrower is in default with respect to
(a) any judgment, order, writ, injunction or decree or (b) any rule or
regulation of any court or Federal, State, municipal or other
Governmental Authority, which would have a material adverse effect on
its business, properties or condition (financial or otherwise).
(j) Subject to any limitation stated thereon or by any
Borrower in writing, all balance sheets, earnings statements and other
financial data which have been or shall hereafter be furnished to the
Lender to induce it to enter into this Agreement or otherwise in
connection herewith, do or will fairly represent the financial
condition of the Borrower as of the dates and the results of their
operations for the period for which the same are furnished to the
Lender and have been or will be prepared in accordance with Lender's
requirements, and that all other information, reports and other papers
and data furnished to the Lender are or will be, at the time the same
are so furnished, accurate and correct in all material respects and
complete insofar as completeness may be necessary to give the Lender a
true and accurate knowledge of the subject matter. There are no
material liabilities of any kind of the Borrower as of the date of the
most recent financial statements which are not reflected therein. There
have been no materially adverse changes in the financial condition or
operation of any
12
Borrower since the date of such financial statements. At Lender's
request, Borrower shall provide financial statements prepared in
accordance with Lender's requirements, represented by Borrower that
said financial statements are fairly prepared and consistent with prior
statements provided to the Lender or certified by their respective
accountants that said financial statements are true and accurate, on an
annual basis and interim basis as more fully set forth herein.
(k) Borrower will pay all obligations, including tax claims,
when due, except such as the Borrower contests in an appropriate
proceeding, in which event Borrower shall furnish to Lender, if
requested, a bond or other security satisfactory to Lender in an amount
sufficient to protect Lender and its interest herein.
(l) There is no material uncured default on the part of any
Borrower under this Agreement, the Revolving Note, any of the Security
Agreements, or any of the other Loan Documents.
(m) The Borrower has dealt with no broker or finder in
connection with the Loan, and the Borrower hereby agrees to jointly and
severally indemnify the Lender and to jointly and severally hold the
Lender harmless of and from any and all claims for broker's or finder's
fees or commissions in connection with the Loan, and agrees to pay all
expenses (including but not limited to attorney's fees and expenses)
incurred by the Lender in connection with the defense of any action or
proceeding brought to collect any such fees and commissions, or
otherwise relating to any such broker's claims resulting from or
arising out of any claim that the Borrower consulted, dealt or
negotiated with the person or entity making such brokerage claim.
(n) Each Plan, pension, profit sharing or other employee
benefit plan, maintained by each Borrower is in material compliance
with ERISA, the Code, and all applicable rules and regulations adopted
by regulatory authorities pursuant thereto. The Borrower has filed all
material reports required to be filed by ERISA, the Code and such rules
and regulations. In addition, any qualified Plans subject to the
minimum funding standards, do not, as of the date hereof, have a
funding deficiency, as defined by ERISA. No Reportable Event material
in relation to the business operations, property, financial or other
conditions of the Borrower has occurred with respect to any Plan. No
tax penalty nor other liability in the aggregate material in relation
to business operations, property, or financial conditions of the
Borrower has been assessed against the Borrower with respect to a Plan.
(o) Each Borrower has filed or caused to be filed all tax
returns, which to the knowledge of the Borrower, are required to be
filed, and has fully paid all taxes shown to be due and payable on said
returns or any assessments made against it or its property, and all
other taxes, fees, or other charges imposed on it or any of its
property by any Governmental Authority. No tax liens have been filed
and, to the knowledge of Borrower, no claims are being made or may
hereafter be asserted with respect to any such taxes, fees or other
charges except for: (i) those, the amount or validity of which is
currently being contested in good faith
13
by appropriate proceedings and with respect to which reserves in
conformity with Generally Accepted Accounting Principles have been
provided on the books of Borrower, as the case may be; and (ii) such
failures to file or pay such tax liens or claims as could not, in the
aggregate, reasonably be expected to have a material adverse effect on
the business operations, property or financial or other condition of
the Borrower, and can not reasonably be expected to have an adverse
effect on the ability of the Borrower to perform any of its respective
obligations in any material respect under this Agreement, the other
Loan Documents, or under any other contractual obligation.
(p) All copies of all documents, reports, and statements
heretofore furnished by or on behalf of Borrower, or in connection with
this Agreement to the Lender, are, and those delivered subsequent to
the date hereof, will be, true and correct copies of the originals of
such documents, reports and statements. All matters stated or certified
in any written statement, certificate, report or other writing
heretofore furnished pursuant to this Agreement by or on behalf of the
Borrower to the Lender are, and all matters stated or certified
subsequent to the date hereof, will be, true and correct as of the date
stated or certified. All such documents, reports, statements, writings
and certifications shall be in form and detail satisfactory to the
Lender.
(q) Each Borrower owns or leases all of its properties and
assets reflected on the balance sheets referred to in Section 7.1(j)
hereof.
(r) All of the properties and assets set forth in Section
7.1(q) are free and clear of all mortgages, pledges, liens, charges and
other encumbrances of any nature whatsoever, excepting for the
Permitted Encumbrances (as defined and set forth in the Security
Agreements).
(s) No Borrower is in default (subject to any applicable cure
periods) in the performance, observance of fulfillment of any of the
obligations, covenants or conditions contained in any lease for real or
personal property, which would have a material adverse affect on its
business and all such leases are valid and existing and in full force
and effect.
(t) No Borrower is an "investment company" within the meaning
of the Investment Company Act of 1940 and any amendments thereto.
(u) None of the employees of any Borrower or any of its
subsidiaries are subject to any collective bargaining agreement and
there are no strikes, work stoppages, election or decertification
petitions or proceedings, unfair labor charges, equal opportunity
proceedings, or other material labor/employee related controversies or
proceedings pending, or, to the best knowledge of the Borrower,
threatening any Borrower or any of its subsidiaries, or between any
Borrower (or any of its subsidiaries) and any of its employees, other
than employee grievances arising in the ordinary course of business
which could not reasonably be expected, individually or in the
aggregate, to have a materially adverse effect on the Borrower.
14
Article 8
COVENANTS OF BORROWER
8.1 Each Borrower shall do, or cause to be done, all of the things
necessary to preserve, renew and keep in full force and effect its corporate
existence and its rights, licenses and permits shall comply with all laws
applicable to it, operate its business in a proper and efficient manner, and
substantially as presently operated or proposed to be operated, and at all times
shall maintain, preserve and protect all franchises and trade names and preserve
all property used or useful in the conduct of its business, and keep the same in
good repair, working order and condition, and from time to time make or cause to
be made any needed and proper repairs, renewals, replacements, betterments and
improvements thereto so that the business carried on in connection therewith may
be properly and advantageously conducted at all times.
8.2 Each Borrower shall at all times maintain true and correct books
and records and shall keep its books and records in accordance with Generally
Accepted Accounting Principles, and shall furnish the Lender with such financial
statements as may be required by Lender on a yearly and interim basis as set
forth in this paragraph and other parts of this Agreement.
8.3 Each Borrower shall properly pay and discharge: (a) all taxes,
assessments and governmental charges upon or against such Borrower or its assets
prior to the date on which penalties are attached thereto, unless, and to the
extent, such taxes are being diligently contested in good faith by appropriate
proceedings and appropriate reserves therefor have been established; and (b) all
lawful claims for labor, materials, supplies, services or anything else which
might or could, if unpaid, become a lien or charge upon the properties or assets
of such Borrower, unless and to the extent only that the same are transferred to
bond, being diligently contested in good faith, and by appropriate proceedings
and appropriate reserves therefor have been established.
8.4 In accordance with the terms and provisions of the Security, Cash
Collateral Account and Lockbox Agreement at such time as the same becomes
effective, Borrower shall direct all account debtors to remit all payments to
the Lockbox maintained with and administered by Lender, with such collections to
be deposited into the Cash, Collateral Account to be applied against the Loan
facility balance in accordance with the terms and provisions of the Security,
Cash Collateral Account and Lockbox Agreement.
8.5 The Borrower shall allow Lender to conduct audits of the Borrower's
books and records (and to make copies and extracts therefrom), including an
audit confirmation of accounts receivable balances and ownership interest in the
inventory, assets and business properties of Borrower. The above set forth
audits, examinations and inspections shall be conducted not less than four (4)
times in each fiscal year of Borrower. Said audits shall be performed at the
sole cost and expense of Borrower. The current per diem for said audits is Four
Hundred Twenty and 00/100 Dollars ($420.00) per day, plus expenses, subject to
change at any time. The frequency of the audits may be adjusted by Lender at any
time in Lender's sole discretion.
15
8.6 Xxxxxxxxx Mobile shall maintain a net worth of not less than Three
Million Five Hundred Twenty-Seven Thousand and 00/100 Dollars ($3,527,000.00)
from April 30, 1999 until July 31, 1999, of not less than Three Million Seven
Hundred Ninety Thousand and 00/100 Dollars ($3,790,000.00) from July 31, 1999
until October 31, 1999, not less than Four Million Seventy-Seven Thousand and
00/100 Dollars ($4,077,000.00) from October 31, 1999 until July 31, 2000 and not
less than Four Million Three Hundred Ninety-Two Thousand and 00/100 Dollars
($4,392,000.00) from July 31, 2000 and thereafter, such requirement to be tested
at the end of each quarter of each fiscal year of Xxxxxxxxx Mobile. The minimum
net worth requirements shall be increased at the end of each quarter in each
fiscal year of Xxxxxxxxx Mobile thereafter in an amount to be determined by
Lender based upon Xxxxxxxxx Mobile's annual projection for the period in
question.
8.7 Xxxxxxxxx Mobile shall maintain a debt-to-worth ratio of not more
than 4.5 to 1 at all times during the term of the Loan, said ratio to be tested
at the end of each quarter of each fiscal year of Xxxxxxxxx Mobile, provided
that the debt-to-worth ratio may be adjusted by Lender at the end of each
quarter in each fiscal year of Xxxxxxxxx Mobile based upon Xxxxxxxxx Mobile's
annual projections for the period in question.
NOTE: In connection with the above, all accounting terms used shall be
construed in accordance with GAAP.
8.8 Each Borrower shall, at its expense, comply with all of the
insurance requirements set forth in this Agreement and the Security Agreements
throughout the term of the Loan.
8.9 The Borrower shall jointly and severally indemnify and save
harmless Lender from any and all loss or damage of whatsoever kind and from any
suits, claims, or demands, including, without limitation, Lender's reasonable
legal fees and expenses, at all trial and appellate levels, on account of any
matter or thing arising out of this Agreement or in connection herewith, or on
account of any act or omission to act by Borrower in connection with this
Agreement and the Loan. The Borrower further agrees to pay any and all taxes
(other than taxes on or measured by net income of Lender) incurred or payable in
connection with the execution and delivery of this Agreement, the Loan and all
other loans from Lender to Borrower. Such obligation shall survive repayment of
the Loan.
8.10 Lender shall have the right, from time to time hereafter and until
the maturity of the Loan, to publicize and advertise in any manner Lender's
participation as lender in connection with the Loan.
8.11 The Borrower shall: (a) make full and timely payments of the
principal and interest due and owing under the Note and the Indebtedness of the
Borrower to the Lender, whether now existing or hereafter arising; (b) duly
comply with all of the terms and covenants contained in each of the Loan
Documents; and (c) at all times maintain the liens and security interests
provided for under or pursuant to this Agreement and all other applicable Loan
Documents as valid and perfected liens and security interests on the property
intended to be covered thereby.
16
8.12 The Borrower shall promptly notify the Lender upon the
commencement of any material action, suit or claim or counter-claim or
proceeding against or investigation of any Borrower.
8.13 The Borrower shall pay all indebtedness and obligations promptly
and in accordance with its respective terms and pay and discharge promptly all
taxes, assessments, and governmental charges or levies imposed upon it or in
respect of its property, before the same shall become in default, as well as all
lawful claims for labor, materials, and supplies or otherwise which, if unpaid,
might become a lien or charge upon such property or any part thereof, and timely
comply with all applicable laws and governmental rules and regulations.
8.14 The Borrower shall promptly notify the Lender in writing of: (a)
any material assessments by any taxing authorities for unpaid taxes as soon as
Borrower has knowledge thereof; and (b) any alleged default by any Borrower in
the performance of or any modification of any of the terms and conditions
contained in any agreement, mortgage or indenture or instrument to which any
Borrower is a party, or which is binding upon any Borrower, and upon any default
by any Borrower in the payment of any of its indebtedness.
8.15 The Borrower shall provide to Lender annual audited consolidated
financial statements of the Borrower, in form and substance acceptable to
Lender, prepared in accordance with GAAP, by certified public accountant(s)
acceptable to Lender, within one hundred twenty (120) days following the end of
each fiscal year of Borrower. Additionally, the Borrower shall provide to Lender
quarterly internally prepared consolidated financial statements of the Borrower,
represented by the Chief Financial Officer of the Borrower that said financial
statements are fairly prepared and consistent with prior statements provided to
the Lender or certified by their respective accountants as being true and
correct in all respects, and otherwise in form and substance acceptable to
Lender, within forty-five (45) days following the end of each quarterly period
in each fiscal year of Borrower, together with annual tax returns (with all
attached schedules) of each Borrower within fifteen (15) days of timely filing
of the same.
8.16 Borrower shall provide to Lender its annual report including its
10K Statement within one hundred and twenty (120) days following the end of each
fiscal year of Borrower.
8.17 Borrower shall provide to Lender its quarterly 10-Q Statements
within thirty (30) days of the end of each quarterly period in each fiscal year
of Borrower.
8.18 The Borrower shall provide to the Lender an aged analysis of all
outstanding accounts receivable of Borrower, in form and substance acceptable to
the Lender, within fifteen (15) days following the end of each monthly period in
each fiscal year of the Borrower. Lender reserves the right to increase the
frequency of said aging reports based upon the findings set forth in the audits.
8.19 The Borrower shall provide to the Lender an aged analysis of all
outstanding accounts payable of Borrower, in form and substance acceptable to
Lender, within fifteen (15) days following the end of each monthly period in
each fiscal year of the Borrower. Lender reserves the right to increase the
frequency of said aging reports based upon the findings set forth in the audits.
17
8.20 The Borrower shall provide to the Lender all information necessary
for the Lender to verify the credit standing of each Borrower during the term of
the Loan. Borrower shall additionally provide to Lender sales reports in form
and content acceptable to Lender (which reports shall include, without
limitation, copies of purchase orders), at such times as Lender shall require,
in Lender's sole discretion.
8.21 The Borrower shall allow the Lender, or Lender's designated agent,
to enter upon the Borrower's premises and inspect the Borrower's property at all
reasonable times, which inspections shall be at Borrower's sole cost and
expense.
8.22 Any existing and future loans to Borrower from any shareholders,
officers or directors of each Borrower shall be subordinated to the lien and
effect of the Loan. Provided that no Event of Default has occurred under the
Loan, each Borrower shall be entitled to make scheduled payments (but not
prepayments) of interest (but not principal) under such subordinated debt.
8.23 No Borrower shall sell or convey any of its assets, except in the
normal and ordinary course of business, including any merger, consolidation or
reorganization, unless consented to in writing by Lender. BORROWER SHALL NOT
CONVEY OR TRANSFER ANY CASH, ASSETS OR PROPERTY TO ANY AFFILIATE, SUBSIDIARY,
RELATED ENTITY OF THE BORROWER OR ANY ENTITY IN WHICH XXXXXXX X. XXXXXXXXX HAS
ANY OWNERSHIP INTEREST, AT ANY TIME DURING THE TERM OF THE LOAN, EXCEPTING
HOWEVER, THAT BORROWER SHALL BE PERMITTED TO TRANSFER ASSETS AMONG THEMSELVES.
Additionally, there shall be no material change in the management of any
Borrower without the prior written consent of Lender. For purposes hereof a
material change in management shall occur when Xxxxxxx X. Xxxxxxxxx ceases to
hold the offices of President or Chief Executive Officer, or is otherwise no
longer actively engaged in the management, of Xxxxxxxxx Mobile. Notwithstanding
anything to the contrary set forth above, sales from Xxxxxxxxx Mobile to
affiliated entities shall be permitted provided that such sales constitute arms
length transactions with normal prices, terms and conditions made in the normal
and ordinary course of business.
8.24 There shall be no loans or other advances from Borrower to
affiliates or related entities of any Borrower during the term of the Loan.
8.25 Each Borrower shall maintain all of its business, company and
depository accounts with Lender during the term of the Loan. Notwithstanding the
foregoing, Borrower shall be entitled to maintain depository accounts with
financial institutions other than Lender in connection with Borrower's
operations in locations outside of the State of Florida. Additionally, Lender
acknowledges that Borrower currently maintains an investment account with Xxxxx
Xxxxxx (the "Xxxxx Xxxxxx Account"). Borrower shall be permitted to keep not
more than Fifty Thousand and 00/100 Dollars in the Xxxxx Xxxxxx Account at any
time.
8.26 The Borrower shall establish no additional employee benefit plans
of any nature without the prior written consent of the Lender, which consent
shall not be unreasonably withheld.
18
Each pension, profit sharing, or other employee benefit plan, at any time,
maintained by each Borrower, shall be in material compliance with ERISA, the
Code, and all applicable rules and regulations adopted by regulatory
authorities, pursuant thereto. The Borrower will cause to be filed all material
reports required to be filed by ERISA, the Code, and such rules and regulations.
8.27 The Borrower within ten (10) days after written request from the
Lender, will furnish a written statement in form satisfactory to the Lender,
duly acknowledged: (i) setting forth the unpaid principal balance of, and the
interest and other sums due on, the Indebtedness evidenced by the Note and/or
secured by any of the other Loan Documents; (ii) stating whether or not any
offsets or defenses exist against the payments due under the Note or any of the
other Loan Documents; (iii) stating the current maturity date of the Note; and
(iv) setting forth such other information as the Lender may request from time to
time.
8.28 The Borrower shall notify the Lender immediately of any change in
the name of any Borrower, the principal place of business of any Borrower, the
office where the books and records of any Borrower are kept or any change in the
registered agent of any Borrower for the purpose of service of process.
8.29 Borrower shall not incur any additional debt (other than
indebtedness incurred in connection with the financing of trucks, including all
equipment located on and attached to the trucks) without Lender's prior written
consent, which consent shall be in Lender's sole discretion.
8.30 Borrower shall provide to Lender a Borrowing Base Certificate in
form and content acceptable to Lender on a monthly basis within fifteen (15)
days of the end of each monthly period in each fiscal year of Borrower and at
such other times as shall be requested by Lender, in Lender's sole discretion.
8.31 The Borrower shall give Lender prompt written notice of any Event
of Default hereunder, or any event of default with respect any Borrower's
obligations under any of the other Loan Documents, indicating the nature and
status thereof and the action which it proposes to take with respect thereto.
8.32 No Borrower shall directly or indirectly engage in any business
activity which would represent a material change from the kind of business
activity currently engaged in by it, which in the aggregate would have a
substantial and material effect on the Borrower's business, without the prior
written consent of Lender, which consent shall be in Lender's sole discretion.
8.33 Borrower shall provide to Lender on a semi-annual basis, a
complete and updated listing of all of its customers and account debtors, which
listing shall include all of the customers' and account debtors' addresses and
phone numbers. In connection with the same, Lender shall use its best efforts to
insure that said lists are not released outside of the Bank, provided however,
that Lender shall incur no liability whatsoever in the event the same occurs.
8.34 There shall be no subordinate financing of the collateral
encumbered by the Security Agreements and Financing Statements.
19
8.35 The Borrower shall use the funds borrowed by the Borrower under
this Agreement solely for general working capital requirements of the Borrower.
8.36 Borrower shall take all necessary and appropriate steps and
procedures to ascertain the extent of, quantify and successfully address
business and financial risks facing Borrower as a result of what is commonly
referred to as the "Year 2000 Problem" (i.e. the inability of certain computer
application to recognize correctly and properly perform date-sensitive functions
involving certain dates prior to and after December 31, 1999), and to verify
that Borrower's material computer applications will, on a timely basis,
adequately address the Year 2000 Problem in all material respects. At the
request of Lender, Borrower shall provide Lender assurance acceptable to Lender
of Borrower's Year 2000 compatibility. Borrower hereby covenants and agrees that
all of Borrower's information systems, including without limitation all computer
hardware and software, networks, databases, and all other electronic data
storage, retrieval and computation hardware, software and devices of any kind
(collectively, the "Information Systems"), have been and/or will be updated and
modified to accommodate and conform to the Year 2000 date change, and are and/or
will be in full compliance with any and all federal, state and local laws,
regulations and ordinances relating to the same, whether now in effect, or
hereafter enacted (collectively, the "Information System Laws"). Lender's
acknowledgment of evidence satisfactory to it confirming the foregoing shall not
constitute a representation by Lender as to Borrower's compliance with this
provision.
Borrower hereby agrees, unconditionally, absolutely, and irrevocably,
to jointly and severally indemnify, defend, and hold harmless Lender, its
affiliates, successors, assigns, and the officers, directors, employees, and
agents of Lender against and in respect of any loss, liability, cost, injury,
expense, or damage of any and every kind whatsoever (including without
limitation, court costs and attorneys' fees and expenses) which at any time or
from time to time may be suffered or incurred, directly or indirectly, in
connection with, with respect to, or as a direct or indirect result of the
failure of Borrower to update or modify its Information Systems to accommodate
and conform to the Year 2000 date change and/or fully comply with all
Information System Laws including, without limitation, any losses, liabilities,
damages, injuries, costs, expenses, or claims asserted or arising under the
Information System Laws, whether now known or unknown.
Article 9
EVENTS OF DEFAULT
Each of the following is an Event of Default:
(a) If Borrower fails to pay any installment of interest or
principal under the Note within ten (10) days after the date the same
shall become due;
(b) If there occurs any default under any other term of this
Agreement, the Note, the Security and Cash Collateral Account
Agreement, the Security, Cash Collateral Account and Lockbox Agreement,
any of the Security Agreements or any of the other Loan Documents
relating hereto or thereto subject to any applicable cure period(s) set
forth therein;
20
(c) If any representation or warranty of Borrower hereunder
shall prove to be incorrect in any material respect;
(d) The dissolution, termination of existence, merger,
consolidation or reorganization of any Borrower;
(e) The commencement of levy, execution or attachment
proceedings in excess of Fifty Thousand and 00/100 Dollars ($50,000.00)
against any Borrower or, or the application for or appointment of a
liquidator, receiver, custodian, sequester, conservator, trustee, or
other similar judicial officer (and such appointment continues for a
period of thirty (30) days in the case of an involuntary proceeding),
or the insolvency, in the bankruptcy or equity sense, of any Borrower;
(f) The assignment for the benefit of creditors, or the
admission in writing of any inability to pay any debts generally as
they become due, or ordering the winding up or liquidation of its
affairs, by any Borrower, or the commencement of a case by or against
any Borrower under any insolvency, bankruptcy, creditor adjustment,
debtor rehabilitation or similar law, state or federal;
(g) The determination by any Borrower to request relief under
any insolvency, bankruptcy, creditor adjustment, debtor rehabilitation
or similar proceeding, state or federal, including without limitation
the consent by any of them to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator
or similar official for it or for any of its respective property or
assets;
(h) There shall have occurred any substantial adverse change
in the financial condition of any Borrower;
(i) If the Borrower shall have failed to comply with any other
agreement, covenant, condition, provision or term contained in this
Agreement and Borrower fails to cure said default within thirty (30)
days of the date of the occurrence of said default;
(j) There shall be entered against any Borrower one (1) or
more judgments or decrees in excess of $50,000.00, or which are not
satisfied or transferred to bond within thirty (30) days of entry.
(k) There shall occur an Event of Default by any Borrower in
the performance of its obligations under the Indebtedness or under any
other loan agreement with the Lender and/or the occurrence of any
monetary event of default under any loan agreement and/or financing
arrangement with any other lender; or
(l) If at any time Lender deems itself insecure for any reason
whatsoever (notwithstanding any grace period in any Loan Documents), or
if any change or event shall occur which in Lender's exclusive judgment
impairs any security for the Loan, increases
21
Lender's risk in connection with the Loan, or indicates that any
Borrower may be unable to perform its respective obligations under any
Loan Document.
Article 10
SET-OFFS
In addition to any other rights the Lender may have at law or in
equity, if any Borrower becomes insolvent howsoever evidenced, or any Event of
Default occurs and is continuing, or if Lender deems itself insecure, any
indebtedness from the Lender to each Borrower, and any other property of each
Borrower held by the Lender, may be set-off and applied towards the payment of
the Indebtedness of the Borrower under this Agreement (including, but not
limited to all indebtedness evidenced by the Note) to the Lender, including,
without limitation, any note payable to the Lender, whether or not such
Indebtedness of the Borrower to the Lender on such note or any part thereof
shall then be due.
Article 11
LENDER'S REMEDIES IN EVENT OF DEFAULT
11.1 Upon any Event of Default, subject only to any cure period(s)
expressly provided in the Note or the Security Agreements, the Lender shall be
entitled to all of its rights or remedies hereunder, at law or in equity and
under the Note, the Security Agreements and any other Loan Document, including,
without limitation, the right to declare the outstanding principal balance of
the Note, the accrued interest thereon, and all other obligations of the
Borrower to the Lender under this Agreement or otherwise to be immediately due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, anything in this Agreement or in the
Note to the contrary notwithstanding, and the Lender's obligation to make any
additional Advances hereunder shall be permanently terminated.
11.2 All of the remedies herein given to Lender or otherwise available
to it shall be cumulative and may be exercised concurrently. Failure to exercise
any of the remedies herein provided shall not constitute a waiver thereof by
Lender, nor shall use of any such remedies prevent the subsequent or concurrent
resort to any other remedy or remedies which shall be vested in Lender by this
Agreement or at law or in equity. To be effective, any waiver by Lender must be
in writing and such waiver shall be limited in its effect to the condition or
default specified therein; but no such waiver shall extend to any subsequent
condition or default or impair any right consequent thereon.
Article 12
TAX INDEMNIFICATION
Borrower hereby agrees to and does hereby jointly and severally
indemnify and hold harmless Lender of and from any and all liability in
connection with payment of any and all intangible, documentary stamp, transfer,
recording and other taxes due and owing to the State of Florida, the State of
Alabama, the State of California, the State of Louisiana, the State of
Tennessee, the State of Georgia, the State of Texas and all other applicable
jurisdictions in connection with the execution, delivery and/or enforcement of
this Agreement, the Revolving Note, the Security Agreements, and
22
all associated Loan Documents, together with all penalties and interest
associated therewith, if any. Accordingly, Borrower does hereby authorize Lender
to reimburse itself for any such taxes that Lender pays upon behalf of Borrower
from the proceeds under the Revolving Note, in the event Lender, at any time, in
its sole discretion, deems it necessary to pay such taxes, together with any
penalties and interest associated therewith. This indemnification and Borrowers'
liability for payment of all of the above set forth taxes shall survive
repayment and/or satisfaction of the Loan.
Article 13
MISCELLANEOUS
13.1 Any condition of this Agreement which requires the submission of
evidence of the existence or non-existence of a specified fact or facts implies
as a condition the existence or non-existence, as the case may be, of such fact
or facts, and Lender shall, at all times, be free independently to establish to
its satisfaction and in its absolute discretion such existence or non-existence.
13.2 No part of the Loan will be, at any time, subject or liable to
attachment or levy at the suit of any creditor of Borrower or of any other
interested party, or at the suit of any contractor, subcontractor,
sub-subcontractors or materialman, or any of their creditors.
13.3 If performance of any provision hereof or any transaction related
hereto is limited by law, then the obligation to be performed shall be reduced
accordingly, and if any clause or provision herein contained operates or would
operate to invalidate this Agreement in part, then the invalid part of said
clause or provisions only shall be held for naught as though not contained
herein, and the remainder of this Agreement shall remain operative and in full
force and effect.
13.4 If Lender shall waive any provisions of the Loan Documents, or
shall fail to enforce any of the conditions or provisions of this Agreement,
such waiver shall not be deemed to be a continuing waiver, and shall never be
construed as such, and Lender shall thereafter have the right to insist upon the
enforcement of such conditions or provisions. Furthermore, no provision of this
Agreement shall be amended, waived, modified, discharged or terminated except by
instrument in writing, signed by the parties hereto.
13.5 This Agreement and the documents expressly referred to herein
embody the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings relating to the subject matter. This Agreement may be changed,
waived, discharged, or terminated only by an instrument in writing duly executed
by the party against which enforcement of such change, waiver, discharge, or
termination is sought.
13.6 Anything in this Agreement to the contrary notwithstanding, the
Lender shall not be obligated to extend credit to the Borrower in violation of
any limitation or prohibition provided by any applicable statute or regulation.
23
13.7 All notices given hereunder shall be in writing and
addressed as follows:
(a) Lender: BANKATLANTIC
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx,
Executive Vice President
with copy to: XXXX X. XXXXXX, ESQ.
Mombach, Xxxxx & Xxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(b) Borrowers: XXXXXXXXX MOBILE FUELING, INC.
XXXXXXXXX REALTY, INC.
XXXXXXXXX WEST, INC.
0000 X.X. 00xx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, President
with copy to: E. XXXXX XXXXXX, ESQUIRE
000 X.X. 0xx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
13.8 This Agreement, the Loan Documents and all other documents
relating hereto or thereto may be reproduced by the Lender, and the Borrower
agrees and stipulates that any such reproduction shall be admissible in evidence
as the original itself in any jurisdiction or administrative proceeding (whether
or not the original is in existence and whether or not such reproduction was
made by the Lender in the regular course of business) and that any enlargement,
facsimile, or further reproduction of said document shall likewise be admissible
in evidence.
13.9 In no event shall the Lender's rights hereunder or under any of
the Loan Documents grant the Lender the right to or be deemed to indicate that
the Lender is in control of the business, management or properties of the
Borrower, or has power over the daily management functions and operating
decisions made by the Borrower. The Lender is the Lender only and shall not be
considered a shareholder, joint venturer or partner of the Borrower.
13.10 The headings preceding the text of the sections of this Agreement
are used solely for convenience of reference and shall not affect the meaning,
construction, or effect of this Agreement.
13.11 Lender shall have the right at any time to convey or assign the
Loan or any portion thereof, and, additionally, shall have the right to sell a
participation in the Loan to another lending institution at any time that the
Loan is outstanding, in any amount as solely determined by Lender.
24
Lender is hereby authorized to release all financial information of the Borrower
to said assignee or participating lender(s).
13.12 Borrower shall not assign this Agreement without the prior
written consent of Lender, and any assignment in violation hereof shall be of no
force and effect and shall constitute an Event of Default herein. Subject to the
previous sentence, this Agreement shall extend to and bind the parties hereto,
and their respective successors and assigns.
13.13 Except as otherwise noted herein, all covenants, agreements,
representations and warranties made herein and in the Loan Documents shall
survive the respective dates of effectiveness thereof and shall continue in full
force and effect so long as the Loan Documents, or any of them, remain in effect
or any of the obligations evidenced thereby are outstanding and unpaid.
13.14 In the event of any conflict, inconsistency or ambiguity between
the provisions of this Agreement and the provisions of the Revolving Note, any
of the Security Agreements, the Security and Cash Collateral Account Agreement,
the Security, Cash Collateral Account and Lockbox Agreement, or any other Loan
Documents, the provisions of this Agreement shall control and prevail.
13.15 This Agreement may be executed in one or more counterparts, each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one instrument. Any term used herein shall be equally
applicable to both the singular and plural forms.
13.16 Borrower will pay all reasonable out-of-pocket expenses incurred
by Lender in connection with the preparation of the Loan Documents (whether or
not the transactions contemplated hereby shall be consummated), the making and
assumption of the Loan, as applicable, the enforcement and protection in any
legal or equitable proceeding of the rights of the Lender in connection with the
Loan Documents, and in connection with any action or claim under the Loan
Documents including the Revolving Note, or in any way related thereto,
including, without limitation, the reasonable fees and disbursements of counsel
of the Lender.
13.17 It is the intention of the parties hereto to comply with the
usury laws of applicable governmental authority(ies); accordingly, it is agreed
that, notwithstanding any provision to the contrary in the Revolving Note, this
Loan Agreement or any of the other documents securing payment thereof or
otherwise relating hereto, no such provision shall require the payment or permit
the collection of interest in excess of the maximum permitted by law. In
determining the maximum rate allowed, Lender may take advantage of any state or
federal law, rule or regulation in effect from time to time which may govern the
maximum rate of interest which may be charged. If any excess of interest in such
respect is provided for, or shall be adjudicated to be so provided for, in the
Revolving Note, the Loan Agreement or in any of the other documents securing
payment thereof or otherwise relating hereto, then in such event: (a) the
provisions of this paragraph shall govern and control; (b) neither Borrower nor
its heirs, personal representatives, successors or assigns or any other party
liable for the payment thereof, shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount permitted by
law; (c) any such excess which may have been collected shall be either applied
as a credit against the then unpaid principal amount of the
25
Revolving Note or refunded to Borrower; and (d) the effective rate of interest
shall be automatically reduced to the maximum lawful contract rate allowed under
the applicable usury laws.
13.18 Borrower hereby waives any right to require a proceeding first
against any other Borrower or other party providing collateral, or to exhaust
any security for the performance of the Indebtedness. The Borrower further
covenants that no security now or subsequently held by the Lender for the
payment of the Indebtedness evidenced by the Revolving Note made by Borrower
under the Agreement, or for the payment of any other Indebtedness of Borrower to
the Lender under this Agreement or the other Loan Documents, whether in the
nature of a security interest, pledge, lien, assignment, setoff, suretyship,
guaranty, indemnity, insurance or otherwise, and no act, omission or other
conduct of the Lender in respect of such security (excluding fraud, gross
negligence or willful misconduct), shall affect in any manner whatsoever the
unconditional obligation of the Borrower under this Agreement and the Revolving
Note, and the Lender may release, exchange, enforce, apply the proceeds of and
otherwise deal with any such security without affecting in any manner the
unconditional obligation of each of the Borrower under this Agreement and the
Note.
Without limiting the generality of the foregoing, such obligations, and
the rights of the Lender to enforce the same, by proceedings, whether by action
at law, suit in equity or otherwise, shall not be in any way affected by (i) any
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, winding up or other proceeding involving or affecting the Borrower
or others, or (ii) any change in the ownership of any of the capital stock of
the Borrower or any other party providing collateral for any of the
Indebtedness, or any of their respective affiliates.
Each Borrower hereby waives to the fullest extent possible under
applicable law:
i. any defense based upon the doctrine of marshaling of
assets or upon an election of remedies by the Lender,
including, without limitation, an election to proceed
by nonjudicial rather than judicial foreclosure;
ii. any defense based upon any statute or rule of law
which provides that the obligation of a surety must
be neither larger in amount nor in other respects
more burdensome than that of the principal;
iii. any other event or action (excluding the Borrower's
compliance with the provisions hereof) that would
result in the discharge by operation of law or
otherwise of the Borrower from the performance or
observance of any obligation, covenant or agreement
contained in this Agreement, the Revolving Note, or
any other Loan Documents.
13.19 The Borrower shall jointly and severally indemnify and hold
harmless the Lender, and its directors, officers, employees and agents against
all losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Lender is a party thereto) which it may pay or incur
arising out of or relating to, directly or indirectly, this Agreement, the
Revolving Note, the other Loan Documents, the transactions contemplated hereby
or the direct or indirect application or proposed application of the proceeds of
any Loan hereunder, excepting for gross negligence or willful misconduct on the
part of Lender.
13.20 This Agreement shall be governed by and construed in accordance
with the internal statutes and laws of the State of Florida (other than with
respect to conflicts of laws), but giving effect to federal laws applicable to
national banks to the extent applicable, and except to the extent that the
validity or perfection of the security interest created hereby, or remedies
hereunder, in respect of any particular Collateral are governed by the laws of a
jurisdiction other than the State of Florida.
13.21 WAIVER AND RELEASE. AS A MATERIAL INDUCEMENT FOR THE LENDER TO
EFFECTUATE THE LOAN AND THE LENDER TO EXECUTE THIS AGREEMENT, EACH BORROWER DOES
HEREBY RELEASE, WAIVE, DISCHARGE, COVENANT NOT TO XXX, ACQUIT, SATISFY AND
FOREVER DISCHARGE THE LENDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND
AGENTS AND ITS AFFILIATES AND ASSIGNS FROM ANY AND ALL LIABILITY, CLAIMS,
COUNTERCLAIMS, DEFENSES, ACTIONS, CAUSES OF ACTION, SUITS, CONTROVERSIES,
AGREEMENTS, PROMISES AND DEMANDS WHATSOEVER IN LAW OR IN EQUITY WHICH ANY
BORROWER EVER HAD, NOW HAS, OR WHICH ANY PERSONAL REPRESENTATIVE, SUCCESSOR,
HEIR OR ASSIGN OF THE BORROWERS HEREAFTER CAN, SHALL OR MAY HAVE AGAINST THE
LENDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, AND ITS
AFFILIATES AND ASSIGNS, FOR, UPON OR BY REASON OF ANY MATTER, CAUSE OR THING
WHATSOEVER, THROUGH THE DATE HEREOF. EACH BORROWER FURTHER EXPRESSLY COVENANTS
WITH AND WARRANTS UNTO THE LENDER AND ITS AFFILIATES AND ASSIGNS, THAT THERE
EXIST NO CLAIMS, COUNTERCLAIMS, DEFENSES, OBJECTIONS, OFFSETS OR CLAIMS OF
OFFSET AGAINST THE LENDER OR THE OBLIGATION OF THE BORROWERS TO PAY THE LENDER
ALL AMOUNTS OWING UNDER THE NOTES, THIS LOAN AGREEMENT, AND ALL ASSOCIATED LOAN
DOCUMENTS AS AND WHEN THE SAME BECOME DUE AND PAYABLE.
13.22 AMENDED AND RESTATED AGREEMENT. THIS AGREEMENT AMENDS AND
RESTATES THE ORIGINAL LOAN AGREEMENT SUCH THAT THE SECURITY INTERESTS, RIGHTS,
DUTIES AND OBLIGATIONS OF THE BORROWERS AND THE LENDER CREATED BY THE ORIGINAL
LOAN AGREEMENT ARE NOT EXTINGUISHED, BUT ARE REAFFIRMED AND REMAIN IN FULL FORCE
AND EFFECT AS MODIFIED BY AND AS PROVIDED IN THIS AMENDED AND RESTATED LOAN
AGREEMENT.
INTENTIONALLY LEFT BLANK
26
WAIVER OF JURY TRIAL. LENDER AND BORROWER HEREBY MUTUALLY, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A
TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT
OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT
CONTEMPLATED OR TO BE EXECUTED IN CONJUNCTION HEREWITH, UNDER ANY OF
THE LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THE
BORROWER ACKNOWLEDGES THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL
INDUCEMENT TO THE LENDER IN ACCEPTING THIS AGREEMENT, AND, THAT THE
LENDER WOULD NOT HAVE ACCEPTED THIS AGREEMENT WITHOUT THIS JURY TRIAL
WAIVER, AND, THAT THE UNDERSIGNED HAS BEEN REPRESENTED BY AN ATTORNEY
OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY REGARDING THIS
JURY TRIAL WAIVER, AND, UNDERSTANDS THE LEGAL EFFECT OF THIS JURY TRIAL
WAIVER.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Signed, sealed and delivered in BORROWER :
the presence of:
XXXXXXXXX MOBILE FUELING, INC., a Florida corporation
By:
------------------------- ----------------------------------------
XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
XXXXXXXXX REALTY, INC., a Florida corporation
By:
------------------------- ----------------------------------------
XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
XXXXXXXXX WEST, INC., a California corporation
By:
------------------------- ----------------------------------------
XXXXXX X. XXXXXXX, Vice President of Finance
(Corporate Seal)
LENDER:
BANKATLANTIC, a Federal Savings Bank
By:
------------------------- ----------------------------------------
Xxxxxxx X. Xxxxx, Vice President
STATE OF GEORGIA
COUNTY OF __________________
THE FOREGOING INSTRUMENT WAS EXECUTED BEFORE ME, the undersigned, a
Notary Public in and for the State of Georgia, this ___ day of May, 1999, by
XXXXXX X. XXXXXXX, as Vice President of Finance of and on behalf of each of
XXXXXXXXX MOBILE FUELING, INC., a Florida corporation, XXXXXXXXX REALTY, INC., a
Florida corporation, and XXXXXXXXX WEST, INC., a California corporation, who 9
is personally known to me or 9 produced his driver's license as identification.
------------------------------------------
Notary Public - State of Georgia
Print Name: _______________________________
My Commission Expires: ____________________
Commission Number: _______________________
STATE OF GEORGIA
COUNTY OF __________________
THE FOREGOING INSTRUMENT WAS EXECUTED BEFORE ME, the undersigned, a
Notary Public in and for the State of Georgia, this ___ day of May, 1999, by
Xxxxxxx X. Xxxxx, as Vice President of and on behalf of BANKATLANTIC, a Federal
Savings Bank, who 9 is personally known to me or 9 produced his/her driver's
license as identification.
------------------------------------------
Notary Public - State of Georgia
Print Name: _______________________________
My Commission Expires: ____________________
Commission Number: _______________________
27
EXHIBIT "A"
BORROWING BASE CERTIFICATE FORM
To Be Provided
28
EXHIBIT "B"
FICTITIOUS NAMES, TRADENAMES, ETC.
None
29
