CREDIT AGREEMENT
Exhibit 10.1
THIS CREDIT AGREEMENT (this “Agreement”) is executed as of June 2, 2016 (the “Effective Date”), by and between FIFTH THIRD BANK, an Ohio banking corporation (“Lender”), and CSI ACQUISITION SUB ONE, LLC, a Delaware limited liability company (“Borrower”).
WHEREAS, Borrower has requested that Lender provide: (i) a term loan in the amount of One Million Sixty-Eight Thousand Nine Hundred Sixty and 30/100 Dollars ($1,068,960.30); and (ii) a revolving line of credit facility in the amount of Five Hundred Thousand and No/100 Dollars ($500,000.00), such notes being secured by all of Borrower’s assets, and Lender has agreed to do so, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the above premises, and the mutual covenants and agreements set forth herein, and for one dollar and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1. Definitions and Interpretation.
“Act” means the USA PATRIOT Act, Title III of Pub. L. 107-56, signed into law October 26, 2001 (“Act”).
“Affiliate” means, with respect to any Person, (a) any other Person which directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, (i) such Person or (ii) any general partner or managing member of such Person; (b) any other Person 50% or more of the equity interest of which is held beneficially or of record by (i) such Person or (ii) any general partner or managing member of such Person, and (c) any general partner, limited partner or member of (i) such Person or (ii) any general partner or managing member of such Person.
“Anti-Terrorism Law” means any statute, treaty, law (including common law), ordinance, regulation, rule, order, opinion, release, injunction, writ, decree or award of any Governmental Agency relating to terrorism or money laundering, including Executive Order No. 13224 and the Act.
1 |
“Applicable Laws” means all statutes, laws, ordinances, regulations, orders, writs, judgments, injunctions, decrees or awards of the United States or any state, county, municipality or other Governmental Agency applicable to the Borrower, the Guarantor and/or the Collateral.
“Borrower Entity Documents” means the Certificate of Formation and the Operating Agreement of Borrower.
“Business Day” shall have the same meaning as set forth in each Note.
“Capitalized Lease Obligations” means, for any period, the aggregate of all expenditures (including that portion of Capitalized Lease Obligations attributable to that period) made in respect of the purchase, construction or rehabilitation of fixed or capital assets, determined in accordance with GAAP.
“Certificate of Formation” means that certificate of formation of the Borrower duly filed with the Office of the Secretary of State of the State of Delaware, as amended from time to time.
“Closing” means execution and delivery of the Loan Documents.
“Code” means the Internal Revenue Code of 1986, as amended, or its predecessor or successor, as applicable, and any United States Treasury regulations, revenue rulings or technical information releases issued thereunder.
“Collateral” means all of Borrower’s right, title and interest, whether now existing or hereafter acquired, in and to all machinery, equipment and other personal property described in the Security Instrument.
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
“Control” and any derivative of such term, including “Controlling” and “Controlled”, means, when used with respect to any Person, (i) the direct or indirect beneficial ownership of fifty percent (50%) or more of the outstanding voting securities or voting equity of such Person or (ii) the power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise.
“Debt” means, for any Person, without duplication: (a) all indebtedness of such Person for borrowed money, for amounts drawn under a letter of credit, or for the deferred purchase price of property or services for which such Person or its assets is liable, other than accounts payable arising in the ordinary course of business, (b) all unfunded amounts under a loan agreement, letter of credit, or other credit facility for which such Person would be liable, if such amounts were advanced under such loan agreement or credit facility or if such letter of credit was issued, (c) all amounts required by such Person as a guaranteed payment to partners or a preferred or special dividend, including any mandatory redemption of shares or interests, (d) all indebtedness guaranteed by such Person, directly or indirectly, (e) all obligations under Capital Lease Obligations for which such Person is liable, and (f) except as otherwise conditioned herein, all obligations of such Person under interest rate swaps, caps, floors, collars and other interest hedge agreements, in each case whether such Person is liable contingently or otherwise, as obligor, guarantor or otherwise, or in respect of which obligations such Person otherwise assures a creditor against loss.
2 |
“Default” means the occurrence of any event, circumstance or condition which constitutes a breach of or a default under this Agreement or any other Loan Document and which, after the giving of any required notice and/or the passage of any applicable cure period, would constitute an Event of Default under this Agreement or any other Loan Document.
“Default Rate” shall have the meaning set forth in each Note.
“EBITDA” means, on a consolidated basis, the amount of Borrower’s earnings before interest, taxes, depreciation and amortization expense for the measurement period.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means any corporation or trade or business (whether or not incorporated) which is treated with Borrower as a single employer within the meaning of Section 414 of the Code.
“Event of Default” means any event so designated in Section 8.1, or any other section or provision, of this Agreement.
“Excluded Swap Obligation(s)” means, with respect to any guarantor of a Swap Obligation, including the grant of a security interest to secure the guaranty of such Swap Obligation, any Swap Obligation if, and to the extent that, such Swap Obligation is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the guaranty or grant of such security interest becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Swap Obligation or security interest is or becomes illegal.
“Fiscal Year” means Borrower’s fiscal year, ending on December 31st of each calendar year.
3 |
“Fixed Charge Coverage Ratio” means the ratio of: (a) Borrower’s EBITDA plus rent and operating lease payments, less distributions, dividends, increases in loans to Guarantor and capital expenditures (other than capital expenditures: (x) incurred with respect to the Magic Platform, (y) financed with equity contributions funded to Borrower by Guarantor, or (z) financed with proceeds of the purchase money indebtedness or capital leases to the extent permitted under the Loan Documents) and other extraordinary items during the applicable test period, divided by (b) the consolidated sum of (i) Borrower’s interest expense, plus (ii) all scheduled principal payments (but excluding principal that is payable upon the Maturity Date) with respect to indebtedness paid or due and payable by the Constituent Entities during the applicable period plus rent and operating lease expenses incurred in the same such period. The test period shall be the prior seven (7) month period then ending for the Fixed Charge Coverage Ratio calculated as of December 31, 2016. The test period shall be the prior twelve (12) month period then ending for the Fixed Charge Coverage Ratio calculated as of December 31, 2017 and each December 31st thereafter for so long as the Loan Documents remain in effect. For purposes of the definition of Fixed Charge Coverage Ratio, the term “Magic Platform” shall mean capital expenditures of up to Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00) incurred by Borrower for the creation or implementation of its ‘Magic’ software and operating platform during the period of June 1, 2016 to December 31, 2016.
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, that are applicable to the circumstances as of the date of determination, consistently applied.
“Governmental Agency” means any governmental or quasi-governmental agency, board, bureau, commission, department, court, administrative tribunal or other instrumentality or authority, and any public utility.
“Guarantor” means JetPay and any Person who now or hereafter partially or fully guarantees the payment or performance of any indebtedness or other obligation to Lender under any Loan Document.
“Guaranty” means, collectively, all guaranties required pursuant to this Agreement and all guaranties pursuant to which any Person now or hereafter partially or fully guarantees the payment or performance of any indebtedness or other obligation to Lender under any Loan Document, and initially means the Continuing Guaranty Agreement dated as of even date herewith given by Guarantor in favor of Lender.
“Hedging Arrangements” means Interest Hedging Instrument or any other interest rate protection agreement, foreign currency exchange agreement, commodity purchase or option agreement, or any other interest rate hedging device or swap agreement (as defined in 11 U.S.C. § 101 et. seq.).
“Indebtedness” means any and all obligations, contingent or otherwise, whether now existing or hereafter arising, of Borrower to Lender or to any of its Affiliates or successors, arising under or in connection with the Loan, this Agreement, or any other Loan Document, or arising under or in connection with any Rate Management Agreement.
“Interest Hedging Instrument” means any documentation evidencing any interest rate swap, interest “cap” or “collar” or any other interest rate hedging device or swap agreement (as defined in 11 U.S.C. § 101 et. seq.) between any Borrower and Lender (or any Affiliate of Lender).
4 |
“JetPay” means JetPay Corporation, a Delaware corporation, and any of its successors.
“Lender” means Fifth Third Bank, an Ohio banking corporation.
“Lien” means any interest of any kind or nature in property securing an obligation owed to, or a claim of any kind or nature in property by, a Person other than the owner of the property, whether such interest is based on the common law, statute, regulation or contract, and including, but not limited to, a security interest or lien arising from a mortgage, encumbrance, pledge, conditional sale or trust receipt, a lease, consignment or bailment for security purposes, a trust, or an assignment.
“Loan” means the loan made hereunder, as evidenced by the Notes.
“Loan Documents” means, collectively, this Agreement, the Notes, the Security Instrument, and any other document now, heretofore or hereafter executed to secure the obligations of Borrower or Guarantor to Lender under or in respect of any Loan Document.
“Loan Expenses” means all interest, charges, costs and reasonable, documented, out-of-pocket expenses incurred by Lender in connection with the Loan, including, but not limited to: (i) all loan fees, service charges, commitment fees or other fees due to Lender in connection with the Loan; (ii) all amounts due under any Rate Management Agreement, if any; (iii) all escrow, filing, search, recording and registration fees and charges; (iv) all documentary stamp and other taxes and charges imposed by law on the issuance or recording of any of the Loan Documents; (vi) all fees and disbursements of legal counsel engaged by Lender in connection with the Loan, including, without limitation, counsel engaged in connection with the enforcement or administration of this Agreement or any of the Loan Documents; and (ix) any amounts required to be paid by Borrower under this Agreement, the Security Instrument or any Loan Document after the occurrence of an Event of Default.
“Loan Proceeds” means all amounts advanced as part of the Loan, whether advanced directly to Borrower or otherwise.
“Material Adverse Change” means any development, event, condition, obligation, liability or circumstance or set of events, conditions, obligations, liabilities or circumstances or any change(s) which, as determined by Lender in good faith:
(a) has prevented, impeded or limited the enforceability or validity of any Loan Document, the perfection or priority of any lien created under any Loan Document or the remedies of the Lender under any Loan Document;
(b) has been, or reasonably could be expected to be, material and adverse to the ownership, use enjoyment or value of any of the Collateral or to the business, operations, prospects, properties, assets, liabilities or condition (financial or otherwise) of Borrower;
(c) has materially impaired the ability of Borrower to perform any of the Obligations, or to consummate the transactions, under the Loan Documents.
5 |
“Maturity Date” has the same meaning as set forth in each Note, respectively.
“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of February 22, 2016, entered into by and among Guarantor, Borrower, CSI Acquisition Sub Two, LLC, a Delaware limited liability company, CollectorSolutions, Inc., a Florida corporation, and Xxxx X. Xxxxxxxxx, as representative of the shareholders of CollectorSolutions, Inc.
“Note” means, individually or collectively: (i) that certain Promissory Note in the stated principal amount of One Million Sixty-Eight Thousand Nine Hundred Sixty and 30/100 Dollars ($1,068,960.30), dated as of even date herewith, made by Borrower in favor of Lender; (ii) that certain Revolving Promissory Note in the stated principal amount of Five Hundred Thousand and No/100 Dollars ($500,000.00), dated as of even date herewith, made by Borrower in favor of Lender.
“Obligations” means all obligations of Borrower or Guarantor under the Note or any of the Loan Documents or under any Rate Management Agreement including, without limitation, the obligation to pay the Indebtedness, and specifically excluding Excluded Swap Obligations.
“OFAC” means the U.S. Department of Treasury’s Office of Foreign Asset Control.
“Operating Agreement” means, with respect to Borrower, such limited liability company operating agreement, as amended from time to time, in effect as of the Effective Date, true and correct copies of which have been delivered to Lender on or before the Effective Date.
“Party” means any Person (other than Lender) who is a party or signatory to any Loan Document.
“Permitted Indebtedness” means: (a) the Indebtedness; (b) indebtedness under Hedging Agreements entered into for the sole purpose of hedging in the normal course of business and not for speculative purposes; (c) purchase money indebtedness (including Capitalized Lease Obligations) hereafter incurred by Borrower to finance the purchase of fixed assets, provided that such Indebtedness incurred which shall not exceed in the aggregate One Million and No/100 Dollars ($1,000,000.00) so long as the Loan Documents remain in effect, other than as set forth on Schedule 1.2; (d) indebtedness existing on the Effective Date that is identified and described on Schedule 1.2 attached hereto and made part hereof, including refinancing, replacement and renewals of such indebtedness, provided that any refinancing shall not exceed the amount then outstanding; (e) indebtedness incurred in the ordinary course of business for surety bonds and performance bonds obtained in connection with workers’ compensation, unemployment insurance and other social security legislation, or (f) indebtedness representing deferred compensation or reimbursable expenses owed to officers, directors, employees or agents of the Borrower in the ordinary course of business.
6 |
“Permitted Liens” means (a) Liens securing taxes, assessments or governmental charges or levies for amounts that are not yet due and payable; (b) Liens of suppliers, carriers, materialmen, warehousemen, workmen or mechanics and other similar Liens, in each case imposed by law or arising in the ordinary course of business and for amounts that are not yet due and payable; (c) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance, social security and other like laws (excluding Liens arising under ERISA); (d) pledges or cash deposits made in the ordinary course of business (i) to secure the performance of bids, tenders, leases, sales or other trade contracts (other than for the repayment of borrowed money or the payment of a deferred purchase price for property or services,) or (ii) made in lieu of, or to secure the performance of, surety, customs, reclamation or performance bonds (in each case not related to judgments or litigation); (e) Liens of landlords and mortgagees of landlords (i) with respect to any landlord, solely arising by statute or, with respect to any mortgagee arising by statute or under any contractual obligations entered into in the ordinary course of business, (ii) on fixtures and movable tangible property located on the real property leased or subleased from such landlord, (iii) for amounts not yet due or that are being contested in good faith by appropriate proceedings diligently conducted and (iv) for which adequate reserves or other appropriate provisions are maintained on the books of such Person in accordance with GAAP; (f) non-exclusive intellectual property licenses granted in the ordinary course of business; (g) Liens in favor of collecting banks arising under Section 4-210 of the UCC and other banker’s liens arising by operation of law; (h) Liens on fixed assets securing purchase money indebtedness, provided that, (i) such Lien attached to such assets concurrently, or with twenty (20) days of the acquisition thereof, and only to the assets so acquired, and (ii) a description of the asset is furnished to the Lender; (i) Liens existing on the Effective Date and shown on Schedule 1.2(c) attached hereto and made part hereof; (j) other Liens in favor of Lender under the Loan Documents; and (k) Liens securing appeal bonds and judgments with respect to judgments that do not otherwise result in or cause an Event of Default.
“Person” means any entity, whether an individual, trustee, corporation, partnership, limited liability company, trust, unincorporated organization, Governmental Agency or otherwise.
“Rate Management Agreement” means any agreement, device or arrangement providing for payments which are related to fluctuations of interest rates, exchange rates, forward rates, or equity prices, including, but not limited to, dollar-denominated or cross-currency interest rate exchange agreements, forward currency exchange agreements, interest rate cap or collar protection agreements, forward rate currency or interest rate options, puts and warrants, and any agreement pertaining to equity derivative transactions (e.g., equity or equity index swaps, options, caps, floors, collars and forwards), including without limitation any ISDA Master Agreement between Borrower and Lender or any affiliate of Fifth Third Bancorp, and any schedules, confirmations and documents and other confirming evidence between the parties confirming transactions thereunder, all whether now existing or hereafter arising, and in each case as amended, modified or supplemented from time to time.
“Rate Management Obligations” means any and all obligations of Borrower to Lender or any affiliate of Fifth Third Bancorp, whether absolute, contingent or otherwise and howsoever and whensoever (whether now or hereafter) created, arising, evidenced or acquired (including all renewals, extensions and modifications thereof and substitutions therefore), under or in connection with (i) any and all Rate Management Agreements, and (ii) any and all cancellations, buy-backs, reversals, terminations or assignments of any Rate Management Agreement.
7 |
“Security Instrument” means, individually or collectively, each respective Security Agreement of even date herewith from Borrower to and for the benefit of Lender, given as security for Borrower’s obligations under the Notes, encumbering the Collateral, as the same may be amended, restated, modified or supplemented and in effect from time to time.
“Swap Obligation” means any Rate Management Obligation that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Taxes” means all taxes, assessments, levies and charges imposed by any public or quasi-public authority having jurisdiction over the Collateral which are or may affect, or become a lien upon, the Collateral, or interest therein, or imposed by any Governmental Authority upon Borrower or Lender by reason of their respective interests in the Collateral or by reason of any payment, or portion thereof, made to Lender hereunder or pursuant to any Obligation or any of the other Loan Documents, other than taxes which are measured by and imposed upon Lender’s general net income.
“UCC” means the uniform commercial code as adopted in the State of Delaware, as in effect from time to time.
8 |
(a) Loan Documents. Fully executed original copies of each of the Loan Documents.
(i) The organizational documents (for corporations, articles of incorporation and bylaws; for general partnerships, partnership agreement; for limited partnerships, partnership agreement and certificate of limited partnership; for limited liability companies, certificate of formation and operating agreement) of each entity whose authorization is necessary to authorize the execution, delivery and performance of the Loan Documents, or whose authorization is necessary to authorize any other entity whose authorization is necessary in respect thereto, certified by the appropriate officer of representative. For purposes hereof, the Borrower and all such other entities are referred to herein below as the “Constituent Entities”;
(ii) Resolutions by the applicable Constituent Entities authorizing the execution and delivery of the documents evidencing and securing the Loan, certified by an appropriate representative of the Constituent Entities;
(iii) An incumbency certificate, including specimen signatures for all individuals executing any of the Loan Documents, for each Constituent Entity executing any of the Loan Documents, certified by the secretary or other appropriate representative of such entity;
9 |
(iv) Certificates of existence for all limited partnerships and certificates of good standing for all corporations or limited liability companies that are Constituent Entities from their state of formation, organization or incorporation, and, if the Borrower was not formed in the State of Florida, a certificate of status from the State of Florida; and
(v) All other instruments and documents concerning the formation and existence of the Constituent Entities, and the execution and delivery of the Loan Documents by the Constituent Entities, as are reasonably required by the Lender.
4.1 Formation, Qualification and Compliance.
(b) Good Standing. Borrower is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and is authorized to conduct business in the State of Florida. Borrower has full power and authority to conduct its business as presently conducted, to acquire the Collateral, to enter into this Agreement, the other Loan Documents to which it is a party and to perform all of its duties and obligations under this Agreement, and such other Loan Documents. Such execution and performance have been duly authorized pursuant to the Borrower’s Certificate of Formation and/or Operating Agreement.
10 |
4.2 Execution and Performance of Loan Documents.
(a) Borrower and Guarantor have all requisite authority to execute, deliver, and perform their obligations under the Loan Documents to which they are a party.
(b) The execution and delivery by Borrower and Guarantor of, and the performance by Borrower and Guarantor of their obligations under each Loan Document to which they are a party, have been authorized by all necessary action and do not and will not:
(i) require any consent or approval not heretofore obtained of any Person having any interest in Borrower or Guarantor;
(ii) violate any provision of, or require any consent or approval not heretofore obtained under, any certificate of formation, certificate of incorporation, certificate of limited partnership, operating agreement, bylaws, limited partnership agreement or other governing document applicable to Borrower or Guarantor;
(iii) result in or require the creation of any lien, claim, charge or other right of others of any kind (other than under or as provided for in the Loan Documents) on or with respect to any property now or hereafter owned or leased by Borrower or Guarantor;
(iv) violate any provision of any Applicable Law presently in effect; or
(v) constitute a breach or default under, or permit the acceleration of obligations owed under, any contract, loan agreement, lease or other agreement or document to which Borrower or Guarantor is a party or by which Borrower or Guarantor or any of their property is bound.
(c) Neither Borrower nor Guarantor is in default, in any respect that is adverse to Lender’s interests in or under the Loan Documents or that would result in a Material Adverse Change, under any Applicable Law, contract, lease or other agreement or document described in subparagraph (ii) or (v) of the previous subsection.
(d) No approval, license, exemption or other authorization from, or filing, registration or qualification with, any Governmental Agency is required in connection with:
(i) the execution by Borrower and Guarantor of, and the performance by Borrower and Guarantor of their obligations under the Loan Documents; and
11 |
(ii) the creation of the liens described in the Loan Documents other than the recording of recordable documents and filing the financing statements.
12 |
4.11 Usury. The Loan, including interest rate, fees and charges as contemplated hereby, is a business loan. The Loan is an exempted transaction under the Truth In Xxxxxxx Xxx, 00 X.X.X. §0000 et seq.; and the Loan does not, and when disbursed will not, violate the provisions of the usury laws of the State of Florida, or any consumer credit laws or usury laws of any state which may have jurisdiction over this transaction, Borrower or the Collateral. The Loan is not a consumer loan.
13 |
14 |
(a) Neither Borrower nor Guarantor, nor any Person Controlling or Controlled by Borrower, nor any Person having a direct or indirect beneficial interest in Borrower, nor any Person for whom Borrower is acting as agent or nominee in connection with this transaction (“Transaction Persons”) (i) is a Person whose property or interest in property is blocked or subject to blocking pursuant to any applicable Anti-Terrorism Law, (ii) engages in any dealings or transactions prohibited by any applicable Anti-Terrorism Law, or is otherwise associated with any such Person in any manner violative of any Anti-Terrorism Law, or (iii) is a Person on the list of Specially Designated Nationals and Blocked Persons or is in violation of the limitations or prohibitions under any Anti-Terrorism Law.
(b) No part of the proceeds of the Loan will be used, directly or indirectly, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of any Anti-Terrorism Law and/or the United States Foreign Corrupt Practices Act of 1977, as amended.
(c) Borrower acknowledges by executing this Agreement that Lender has notified Borrower and Guarantor that, pursuant to the requirements of the Act, Lender is required to obtain, verify and record such information as may be necessary to identify Borrower and Guarantor (including the name and address of Borrower and Guarantor and such Affiliates) in accordance with the Act.
(d) Neither Borrower nor Guarantor has been convicted of a felony and there are no proceedings or investigations being conducted involving criminal activities of either Borrower or Guarantor.
15 |
6.1 Existence. Borrower shall maintain its existence as a limited liability company in good standing under the Applicable Laws of the State of Delaware and authorized to do business in the State of Florida.
16 |
(a) any litigation or claim affecting or relating to the Collateral and involving an amount in excess of $100,000.00; and any litigation or claim that might subject Borrower to liability in excess of $250,000.00, whether covered by insurance or not;
(b) any dispute between Borrower and any Governmental Agency relating to the Collateral, the adverse determination of which might materially affect the Collateral;
(c) any trade name hereafter used by Borrower and any change in Borrower’s principal place of business;
(d) any Default or Event of Default;
(e) the creation or imposition of any Lien against the Collateral, other than a Permitted Lien;
(f) any default under any Loan Document; and/or
(g) any Material Adverse Change in the condition of Borrower.
6.7 Financial Reporting Requirements. During the term of the Loan:
17 |
18 |
6.10 Single Purpose Entity. Borrower covenants and agrees that it has not and shall not:
(a) merge into or consolidate with any person or entity or dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, except as contemplated by the Merger Agreement;
(b) (i) fail to preserve its existence as an entity duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, (ii) dissolve or otherwise terminate, or fail to comply with the provisions of Borrower’s organizational documents, or (iii) amend or modify Borrower’s Certificate of Formation or Operating Agreement in a manner adverse to the Lender;
(c) fail to hold its assets in its own name, or commingle its assets with the assets of any of its partners, affiliates, or of any other person or entity or transfer any assets to any such person or entity other than distributions on account of equity interests in the Borrower, to the extent, if any, permitted hereunder, and properly account for, and any other payments expressly permitted hereunder;
(d) other than Permitted Indebtedness, incur any Debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than the Loan, except Debt from Guarantor;
(e) fail to maintain its records, books of account and bank accounts separate and apart from those of the shareholders and any Affiliates of Borrower or its shareholders, or fail to prepare and maintain its own financial statements in accordance with GAAP and susceptible to audit;
(f) seek dissolution or winding up, in whole or in part;
(g) guaranty or become obligated for the Debts of any other entity or person, or hold itself out to be responsible or pledge its assets or credit worthiness for the Debts of another person or entity, or allow any person or entity to hold itself out to be responsible or pledge its assets or credit worthiness for the Debts of the Borrower (except for Guarantor);
(h) fail to use separate contracts, purchase orders, stationery, invoices and checks;
(i) fail to allocate fairly and reasonably among Borrower and any third party (excluding JetPay) any overhead for common employees, shared office space or other overhead and administrative expenses;
19 |
(j) allow any person or entity (other than JetPay) to pay the salaries of Borrower’s employees or fail to maintain a sufficient number of employees for Borrower’s contemplated business operations;
(k) fail to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; or
(l) conceal assets from any creditor, or enter into any transaction with the intent to hinder, delay or defraud creditors of the Borrower or the creditors of any other Person.
Notwithstanding anything to the contrary contained in this Section 6.10, any action or inaction of Borrower to consummate the transactions contemplated pursuant to the Merger Agreement, including, but not limited to, the change of Borrower’s legal name to “CollectorSolutions, LLC”, shall be deemed approved by Lender and not a violation of the covenants of this Section 6.10.
20 |
(a) At its own cost, Borrower shall obtain and maintain at all times during the term of the Loan hazard (property) insurance on the Collateral (each a “Policy” or “Policies”) and Lender shall be identified in each Policy as a “Lender Loss Payable” or “Loss Payee” specifically described as follows: “Fifth Third Bank, its successors and/or assigns as their respective interests may appear”. Borrower shall provide Lender with evidence of all such insurance required hereunder.
(b) The Policies to be obtained and maintained by Borrower under the provisions of this Agreement shall be issued by responsible insurance carriers with a Best’s rating of no less than A/VII, licensed to do business in the State of Florida, who are acceptable to Lender and shall be in such form and with such endorsements, waivers and deductibles as Lender shall designate or approve. Without limitation on the foregoing:
(i) All Policies shall name Borrower as the insured, and shall name Lender as a loss payee, in form reasonably satisfactory to Lender, attached to such Policy or Policies whenever applicable, and providing, among other matters, that all Insurance Proceeds (as hereinafter defined) shall be paid to Lender).
21 |
(ii) All Policies shall contain: (1) the agreement of the insurer to give Lender at least thirty (30) days’ written notice prior to cancellation or expiration of or change in such Policies, or any of them; (2) a waiver of subrogation rights against Lender and, if available Borrower; (3) an agreement that such Policies are primary and non-contributing with any insurance that may be carried by Lender; (4) a statement that the insurance shall not be invalidated should any insured waive in writing prior to a loss any or all right of recovery against any party for loss accruing to the property described in the Policy; and (5) if obtainable, a provision that no act or omission of Borrower shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained. As of the date hereof, and subject to any changes in such requirements which Lender may, in its discretion, make from time to time pursuant to its rights under this Section 6.14, each Policy of property insurance hereunder shall contain a lender’s loss payable endorsement, lender clause, or other non-contributory clause of similar form and substance acceptable to Lender in favor of Lender.
(c) Concurrently herewith, Borrower shall deliver to Lender original Policies or certificates evidencing the insurance required hereunder. Borrower shall procure and pay for renewals of such insurance (or shall cause the procurement and payment) from time to time before the expiration thereof, and Borrower shall deliver to Lender such original renewal Policies or certificates at least thirty (30) days before the expiration of any existing Policy.
(d) Borrower, for itself, and on behalf of its insurers, hereby releases and waives any right to recover against Lender on any liability for: damages for injury to or death of persons; any loss or damage to property; any other direct or indirect loss or damage caused by fire or other risks, which loss or damage is or would be covered by the insurance required to be carried hereunder by Borrower, or is otherwise insured; or claims arising by reason of any of the foregoing, except to the extent caused solely by the gross negligence or willful misconduct of Lender.
(e) Lender shall not, by reason of accepting, rejecting, obtaining or failing to obtain insurance, incur any liability for (i) the existence, non-existence, form, amount or legal sufficiency thereof, (ii) the solvency or insolvency of any insurer, or (iii) the payment of losses. All insurance required hereunder or carried by Borrower shall be procured at Borrower’s sole cost and expense. Borrower shall deliver to Lender receipts satisfactory to Lender evidencing full prepayment of the Premiums therefor. In the event of foreclosure on, or other transfer of title in lieu of foreclosure of, the Collateral, all of Borrower’s interest in and to any and all Policies in force shall pass to Lender, or the transferee or purchaser as the case may be, and Lender is hereby irrevocably authorized to assign in Borrower’s name to such purchaser or transferee all such Policies, which may be amended or rewritten to show the interest of such purchaser or transferee.
(f) Approval by the Lender of any Policies shall not be deemed a representation by the Lender as to the adequacy of coverage of such Policies or the solvency of the insurer.
6.15 Casualty Loss; Proceeds of Insurance.
(a) The Borrower will give the Lender prompt written notice of any material loss or damage to the Collateral, or any part thereof, by fire or other casualty.
22 |
(b) In case of loss or damage covered by any one of the Policies in excess of $500,000.00 (the “Insurance Threshold”), the Lender is hereby authorized to settle and adjust any claim under such Policies (and after the entry of a decree of foreclosure, or a sale or transfer pursuant thereto or in lieu thereof, the decree creditor or such purchaser or transferee, as the case may be, are hereby authorized to settle and adjust any claim under such Policies) upon consultation with, but without requiring the consent of, the Borrower; and the Lender shall, and is hereby authorized to, collect and receipt for any and all proceeds payable under such Policies in connection with any such loss (collectively, the “Insurance Proceeds”). Borrower hereby irrevocably appoints Lender as its attorney-in-fact for the purposes set forth in the preceding sentence effective if an Event of Default has occurred and is continuing. Each insurance company is hereby authorized and directed to make payment (i) of 100% of all such losses (if such loss exceeds the Insurance Threshold) directly to Lender alone, and (ii) of 100% of all such losses (if such loss is less than or equal to the Insurance Threshold) directly to Borrower alone, and in no case to Borrower and Lender jointly. All reasonable costs and expenses incurred by the Lender in the adjustment and collection of any such Insurance Proceeds (including without limitation reasonable attorneys’ fees and expenses) shall be so much additional Indebtedness, and shall be reimbursed to the Lender upon demand or may be paid and deducted by the Lender from such Insurance Proceeds prior to any other application thereof. Lender shall not be responsible for any failure to collect any Insurance Proceeds due under the terms of any policy regardless of the cause of such failure, other than the gross negligence or willful misconduct of Lender.
(c) Net Insurance Proceeds received by the Lender under the provisions of this Agreement or any instrument supplemental hereto or thereto shall be applied by the Lender at its option as and for a prepayment on each Note, without a prepayment fee (whether or not the same is then due or otherwise adequately secured), or shall be disbursed for repair or replacement of such Collateral (“Restoration”), in which event the Lender shall not be obligated to supervise Restoration work nor shall the amount so released or used be deemed a payment of the indebtedness evidenced by both Notes. If Lender elects to permit the use of Insurance Proceeds to restore such Collateral it may do all necessary acts to accomplish that purpose, including advancing additional funds and all such additional funds shall constitute part of the Debt. If Lender elects to make the Insurance Proceeds available to Borrower for the purpose of effecting the Restoration, or, following an Event of Default, elects to restore such Collateral, any excess of Insurance Proceeds above the amount necessary to complete the Restoration shall be applied as and for a prepayment on the Notes, without a prepayment fee or premium. No interest shall be payable to Borrower upon Insurance Proceeds held by Lender.
(d) So long as any Indebtedness shall be outstanding and unpaid, and whether or not Insurance Proceeds are available or sufficient therefor, the Borrower shall promptly commence and complete, or cause to be commenced and completed, with all reasonable diligence, the Restoration of the Collateral as nearly as possible to the same value, condition and character which existed immediately prior to such loss or damage in accordance with the Restoration plans and in compliance with all legal requirements. Any Restoration shall be effected in accordance with procedures to be first submitted to and approved by the Lender in accordance with Section 6.17 hereof. The Borrower shall pay all costs of such Restoration to the extent Insurance Proceeds are not made available or are insufficient.
23 |
(a) All Insurance Proceeds and/or Awards received by the Lender as provided in Section 6 hereof shall, after payment or reimbursement therefrom of all reasonable costs and expenses (including without limitation reasonable attorneys’ fees and expenses) incurred by the Lender in the adjustment and collection thereof (collectively, the “Net Proceeds”), shall be deposited with the Lender, or such other depositary as may be designated by the Lender, and applied as provided in this Section 6.
(b) Subject to Section 6.17(c) hereinbelow, the Lender may elect to apply the Net Proceeds to prepayment of the Indebtedness, whether then due or not. If the Debt is not prepaid in full, then the Net Proceeds shall be applied to the installments of principal and interest in the inverse order of maturity.
(c) All Net Proceeds which are not applied to the payment of the Debt shall be applied to fund the payment of the costs, fees and expenses incurred for the Restoration of the Collateral as required in this Agreement.
(d) Any surplus which may remain out of such Net Proceeds after payment of all costs, fees and expenses of such Restoration shall be applied to prepayment of the Debt, without the payment of a prepayment fee or prepayment premium.
24 |
7.5 Limitations on Additional Indebtedness; Other Prohibited Transactions.
(a) Except as expressly permitted herein, Borrower shall not, without the prior written consent of Lender granted in its sole discretion, incur any indebtedness of any kind other than (i) indebtedness to Guarantor; and (ii) Permitted Indebtedness.
(b) Borrower shall not, without the prior written consent of Lender, engage directly or indirectly in any off balance sheet, hedge or derivative transactions, including without limitation, interest rate swaps and interest rate caps except with Lender and its affiliates and subsidiaries
(a) Borrower fails to pay (i) any installment of principal or interest payable pursuant to the terms of either Note when due, or (ii) any other amount payable to Lender under either Note, this Agreement, the Security Instrument or any of the other Loan Documents within five (5) days after the date when any such payment is due in accordance with the terms hereof or thereof; or
(b) Borrower fails to perform or cause to be performed any other obligation or observe any other condition, covenant, term, agreement or provision required to be performed or observed by Borrower under either Note, this Agreement, the Security Instrument or any of the other Loan Documents and not specifically described in this Section 8.1 or in the default section of any other Loan Document; provided, however, that if such failure by its nature can be cured, then so long as the continued operation, safety and value of the Collateral, and the priority, validity and enforceability of the liens created by the Security Instrument or any of the other Loan Documents, are not impaired, threatened or jeopardized, then Borrower shall have a period (the “Cure Period”) of thirty (30) days after Borrower obtains actual knowledge of such failure or receives written notice of such failure to cure the same and an Event of Default shall not be deemed to exist during the Cure Period; provided further that if such failure by its nature can be cured but cannot be cured by the payment of money and Borrower commences to cure such failure during the Cure Period and is diligently and in good faith attempting to effect such cure, the Cure Period shall be extended for thirty (30) additional days, but in no event shall the Cure Period be longer than sixty (60) days in the aggregate; or
25 |
(c) The existence of any inaccuracy or untruth in any material respect in any certification, representation or warranty contained in this Agreement or any of the other Loan Documents or of any statement or certification as to facts delivered to the Lender by the Borrower or Guarantor when made; provided, however, that in the case of an inaccuracy or untruth with respect to facts relating to Guarantor and not the Borrower, no Event of Default shall be deemed to have occurred unless such facts are reasonably likely to result in a Material Adverse Change on the Borrower; or
(d) Borrower is dissolved, liquidated or terminated, or all or substantially all of the assets of Borrower are sold or otherwise transferred without Lender’s prior written consent; or
(e) Borrower is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability (whether through repudiation or otherwise) to pay its Debts as they mature, or makes an assignment for the benefit of creditors; or Borrower applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Borrower, and the appointment continues undischarged or unstayed for sixty (60) days; or Borrower institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment of Debt, dissolution, custodianship, conservatorship, liquidation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Borrower, and continues undismissed or unstayed for sixty (60) days; or any judgment, writ, warrant of attachment or execution, or similar process is issued or levied against any property of Borrower and is not released, vacated or fully bonded within thirty (30) days after its issue or levy; or
(f) Any Guaranty is repudiated, revoked or terminated in whole or in part without Lender’s prior written consent; or Guarantor claims that his, her or its Guaranty is ineffective or unenforceable, in whole or in part and for any reason, with respect to amounts then outstanding or amounts that might in the future be outstanding; or
(g) The occurrence of any other Prohibited Transfer (as defined in the Security Instrument); or
(h) any material provision of this Agreement or the Loan Documents shall at any time for any reason cease to be valid and binding on the Borrower, or shall be declared to be null and void, or the validity or enforceability thereof shall be successfully contested by any Governmental Agency, or Borrower shall deny that it has any or further liability or obligation under this Agreement or the Loan Documents; or
(i) any default by the Borrower in any payment of principal or interest due and owing upon any other material obligations of the Borrower for borrowed money beyond any period of grace provided with respect thereto or in the performance of any other agreement, term or condition contained in any agreement under which such obligation is created, if the effect of such default is to accelerate the maturity of such indebtedness or to permit the holder thereof to cause such indebtedness to become due prior to its stated maturity; or
26 |
(j) Guarantor fails to perform any obligation (following any applicable notice and cure period) under the Guaranty; provided, however, that no Event of Default shall be deemed to have occurred unless such failure to perform is reasonably likely to result in a Material Adverse Change on the Borrower; or
(k) All or any material portion of the Collateral is condemned, seized or appropriated by a Governmental Agency; or
(l) The Collateral is materially damaged or destroyed by fire or other casualty unless Borrower establishes within sixty (60) days after such casualty its qualification under the Security Instrument to use any available insurance proceeds to restore the Collateral and thereafter diligently restores the Collateral in accordance with this Agreement and the Security Instrument; or
(m) The existence of any fraud, dishonesty or bad faith by or with the acquiescence of Borrower or Guarantor which in any way relates to or affects the Loan or the Collateral; or
(n) The occurrence of any event specifically identified as an Event of Default in any other Loan Document; or
(o) The occurrence of a Material Adverse Change in the financial condition of Borrower; or
(p) Either Borrower or Guarantor shall have a judgment entered against it in excess of $250,000.00 in any civil, administrative or other proceeding, which judgment is not fully covered by insurance, and such judgment remains unpaid, unvacated, unbonded or unstayed by appeal or otherwise for a period of thirty (30) days from the date of its entry; or
(q) The occurrence of a default under any Rate Management Agreement; or
(r) Borrower defaults in any loan obligation to Lender other than in connection with the Loan, subject to any applicable cure period(s); or
(s) The failure to deliver any of the financial statements or compliance certificates pursuant to Section 6.7 of this Agreement and such default continues unremedied for ten (10) Business Days;
(t) Borrower fails to maintain the required Fixed Charge Coverage Ratio pursuant to Section 6.8.
27 |
(a) Terminate any obligation or responsibility on the part of Lender to make further advances of Loan Proceeds or of any other amounts held by Lender and constituting security for the Indebtedness pursuant to this Agreement or any other Loan Document;
(b) Declare the outstanding principal balance of the Loan, together with all accrued interest thereon and other amounts owing in connection therewith, to be immediately due and payable in full, regardless of any other specified due date, and in the event of the occurrence of an Event of Default under Section 8.1(e) such principal and interest shall become immediately due automatically;
(c) In its own right or by a court-appointed receiver, take possession of the Collateral, enter into contracts for and otherwise pay the costs thereof out of the proceeds of the Loan; and in the event that such costs exceed the total of such funds, Lender shall have the right but not the obligation to pay such excess costs by expenditure of their own respective funds; and/or
(d) Exercise any of its rights under the Loan Documents and any rights provided by Applicable Law, including the right to foreclose on any security and exercise any other rights with respect to any security, all in such order and manner as Lender elects in its absolute discretion.
28 |
9.1 Nonliability. Borrower acknowledges and agrees that:
(a) notwithstanding any other provision of any Loan Document: (i) Lender is not and shall be deemed a partner, joint venturer, alter-ego, manager, controlling person or other business associate or participant of any kind of Borrower and Lender does not intend to ever assume any such status; (ii) Lender does not intend to ever assume any responsibility to any Person for the quality or safety of the Collateral, and (iii) Lender shall not be deemed responsible for or a participant in any acts, omissions or decisions of Borrower;
(b) Lender shall not be directly or indirectly liable or responsible in any way for any loss, cost, damage, penalty, expense, liabilities or injury of any kind to any Person or property resulting from any development, occupancy, ownership, management, operation, possession, condition or use of, the Collateral (except to the extent proximately caused by Lender’s or Lender’s proven gross negligence or willful misconduct), including without limitation those resulting or arising directly or indirectly from: (i) any defect in any building or other onsite or offsite improvement; (ii) any act or omission of Borrower or any of Borrower’s agents, employees, independent contractors, licensees or invitees; or (iii) any accident on the Collateral or any fire or other casualty or hazard thereto; and
(c) By accepting or approving anything required to be performed or given to Lender under the Loan Documents, including any certificate, financial statement, appraisal or insurance policy, Lender shall not be deemed to have warranted or represented the sufficiency or legal effect of the same, and no such acceptance or approval shall constitute a warranty or representation by Lender to anyone.
9.2 Indemnification of the Lender.
(a) To the fullest extent permitted by law, the Borrower agrees to indemnify, hold harmless and defend the Lender, and each of its officers, members, directors, officials, employees, attorneys and agents (collectively, the “Indemnified Parties”), against any and all losses, damages, claims, actions, liabilities, costs and expenses of any conceivable nature, kind or character (including, without limitation, reasonable attorneys’ fees, litigation and court costs, amounts paid in settlement and amounts paid to discharge judgments) to which the Indemnified Parties, or any of them, may become subject under or any statutory law (including federal or state securities laws) or at common law or otherwise, arising out of or based upon or in any way relating to:
(i) (A) the making of the Loan; (B) a claim, demand or cause of action that any Person has or asserts against Borrower or Guarantor; (C) the payment of any commission, charge or brokerage fee incurred in connection with the Loan; (D) any act or omission of Borrower, any of its agents, employees, licensees with respect to the Loan or the Collateral; (E) the development, ownership, occupancy, management, operation, possessing condition or use of the Collateral; (F) the Loan Documents or the execution or amendment thereof, or in connection with any of the transactions contemplated thereby, including without limitation, the making of the Loan; and (G) any lien or charge upon payments by the Borrower to the Lender hereunder, or any taxes (including, without limitation, ad valorem taxes and sales taxes), assessments, impositions and other charges imposed in respect of all or any portion of the Collateral;
29 |
(ii) any act or omission of the Borrower or any of its agents, contractors, servants, employees or licensees, with respect to the operation of the Collateral, or the condition, use, possession, conduct or management of work done in or about, or from the planning, design, acquisition or any part thereof; and
(iii) any lien or charge upon payments by the Borrower to the Lender hereunder, or any taxes (including, without limitation, all ad valorem taxes and sales taxes), assessments, impositions and other charges imposed on the Lender in respect of any portion of the Collateral; and
except (A) in the case of the foregoing indemnification of the Lender or any its officers, members, directors, officials, employees, attorneys and agents, to the extent such damages are caused by the gross negligence or willful misconduct of such Indemnified Party, or (B) in the case of the foregoing indemnification of the Lender or any of its officers, members, directors, officials, employees, attorneys and agents, to the extent such damages are caused by the willful misconduct of such Indemnified Party; and provided that this Section is not intended to give rise to a right of the Lender to claim payment of the principal and accrued interest with respect to the Loan as a result of an Indemnified Party claim. In the event that any action or proceeding is brought against any Indemnified Party with respect to which indemnity may be sought hereunder, the Borrower, upon written notice from the Indemnified Party, shall assume the investigation and defense thereof, including the employment of counsel selected by the Indemnified Party, and shall assume the payment of all expenses related thereto, with full power to litigate, compromise or settle the same in its sole discretion; provided that the Indemnified Party shall have the right to review and approve or disapprove any such compromise or settlement. Each Indemnified Party shall have the right to employ separate counsel in any such action or proceeding and participate in the investigation and defense thereof, and the Borrower shall pay the reasonable fees and expenses of such separate counsel; provided, however, that such Indemnified Party may only employ separate counsel at the expense of the Borrower if in the reasonable judgment of such Indemnified Party a conflict of interest exists by reason of common representation or if all parties commonly represented do not agree as to the action (or inaction) of counsel.
(b) Notwithstanding any transfer of the Collateral to another owner in accordance with the provisions of this Agreement, the Borrower shall remain obligated to indemnify each Indemnified Party pursuant to this Section if such subsequent owner fails to indemnify any party entitled to be indemnified hereunder, unless such Indemnified Party has consented to such transfer and to the assignment of the rights and obligations of the Borrower hereunder.
30 |
(c) The rights of any persons to indemnity hereunder and rights to payment of fees and reimbursement of expenses pursuant to this Agreement shall survive the final repayment of the Loan. The provisions of this Section shall survive the termination of this Agreement.
To the Lender: |
Fifth Third Bank 000 X. Xxxxxxx Xxxx., 00xx Xxxxx Xxxxx, XX 00000 Attn: Xxxxx X. Xxxxxxxx | |
With a copy to: |
Xxxxx & Xxxxxxx LLP 000 X. Xxxxx Xxxxxx, Xxxxx 0000 Xxxxx, XX 00000 Attn: Xxxxxx X. Xxxxxx, Esq. | |
To the Borrower:
With a copy to: |
0000 Xxxxxxxxx Xxx. Xxxxx 000 Xxxxxx, XX 00000 Attn: Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
Dechert LLP Xxxx Centre 0000 Xxxx Xxxxxx Xxxxxxxxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxxxx, Esq. |
31 |
or to any other address as to any of the parties hereto, as such party shall designate in a written notice to the other party hereto. All notices sent pursuant to the terms of this Section shall be deemed received (i) if personally delivered, then on the date of delivery, (ii) if sent by overnight, express carrier, then on the next Business Day immediately following the day sent, or (iii) if sent by registered or certified mail, then on the earlier of the third Business Day following the day sent or when actually received.
9.11 Governing Law. All of the Loan Documents shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida without regard to the conflicts of laws principles thereof; provided that if Lender has greater rights or remedies under federal law, then such right and/or remedies under federal law shall also be available to Lender.
32 |
9.15 Time of the Essence. Time is of the essence of all of the Loan Documents.
33 |
9.20 Consent to Jurisdiction. TO INDUCE LENDER TO ENTER INTO THIS AGREEMENT, BORROWER IRREVOCABLY AGREES THAT, SUBJECT TO LENDER’S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS WILL BE LITIGATED IN COURTS HAVING SITUS IN HILLSBOROUGH COUNTY, FLORIDA. BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY COURT LOCATED WITHIN HILLSBOROUGH COUNTY, FLORIDA, WAIVES PERSONAL SERVICE OF PROCESS UPON BORROWER.
[Remainder of page left blank intentionally.]
34 |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the Effective Date.
BORROWER: | ||||
CSI ACQUISITION SUB ONE, LLC, a Delaware limited liability company | ||||
By: | JetPay Corporation, its sole member | |||
By: | /s/ Xxxxx X. Xxxxxxxx | |||
Name: | Xxxxx X. Xxxxxxxx | |||
Title: | Vice Chairman and Corporate Secretary |
35 |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first written above.
LENDER: | ||
FIFTH THIRD BANK, an Ohio banking corporation | ||
By: | /s/ Xxxxx X. Xxxxxxxx | |
Name: Xxxxx X. Xxxxxxxx | ||
Title: Vice President |
36 |
Guarantor hereby joins in on the execution of this Agreement solely to evidence its obligations hereunder.
GUARANTOR: | ||
JETPAY CORPORATION, a Delaware corporation | ||
By: | /s/ Xxxxx X. Xxxxxxxx | |
Name: Xxxxx X. Xxxxxxxx | ||
Title: Vice Chairman and Corporate Secretary |
37 |