CREDIT AGREEMENT
BY AND BETWEEN
NATIONSBANK, N.A.,
a national banking association
(the "Bank")
AND
THE XXXXXXX CO.,
a Florida corporation
(the "Borrower")
Dated November 30, 1998
CREDIT AGREEMENT
THIS CREDIT AGREEMENT , made this 30th day of November, 1998
between THE XXXXXXX CO., a Florida corporation (the "Borrower")
and NATIONSBANK, N.A., a national banking association (the
"Bank").
WITNESSETH:
WHEREAS, Bank has agreed to extend a Term Loan in the amount of
ELEVEN MILLION ONE HUNDRED THOUSAND DOLLARS ($11,100,000.00) (the
"Term Loan") to Borrower as evidenced by a Promissory Note dated
November 30, 1998 (the "Note") which shall be used by Borrower
for refinancing existing debts with Bank; and
WHEREAS, Bank has agreed to provide such financing conditioned
upon the Borrower agreeing to the terms and conditions set forth
in this Credit Agreement and to the execution of certain other
documents in connection therewith.
NOW, THEREFORE, in consideration of the Sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt
whereof is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. The following definitions will apply to this
Credit Agreement as well as all other documentation involved in
this Term Loan transaction:
A. "Bank" - NATIONSBANK, N.A., a national banking association.
B. "Borrower" - THE XXXXXXX CO., a Florida corporation.
C. "Promissory Note" or "Note" - is the Promissory Note in the
original principal amount of Eleven Million One Hundred and
No/100 Dollars ($11,100,000.00) from Borrower in favor of Bank.
D. "Current Maturity Coverage" - is defined as the sum of Net
Income, non-cash charges less dividends divided by the sum of
current maturities of long term debt. Borrower shall maintain a
Current Maturity Coverage of not less than 1.75:1.00.
E. "Current Minimum Ratio" - Borrower shall maintain at all
times a ratio of current assets to current liabilities of not
less than 2.0:1.0, tested quarterly.
F. "Funded Debt/EBITDA" - is 2.50: 1.00 to be tested quarterly
on a trailing monthly basis.
G. "Interest Rate" - Fixed rate of Six and 65/100 Percent
(6.65%) per annum.
H. "Loan Documents" - This term includes all documents which
comprise the loan documentation including, but not limited to the
Promissory Note, Credit Agreement, and any and all supplemental
related Loan Documents between Bank and Borrower.
I. "Maturity Date" - November 30, 2005.
2. INTEREST RATE. Fixed rate of Six and 65/100 Percent (6.65%)
per annum.
3. DEFAULT RATE OF INTEREST. After maturity, whether by
acceleration or otherwise, or after the entry of judgment, at
Holder's option, the entire unpaid principal balance of the Term
Loan shall bear interest until paid at an augmented annual rate
(the "Default Rate") from and after the stated or accelerated
maturity of the Note, or from and after failure to pay on the due
date any sum payable under the Note or under any other Loan
Document (and the expiration of any applicable grace period
provided in the Note or any such other Loan Document for that
payment), or from and after the occurrence of any other default
(whether concerned with the payment of money or otherwise) under
any Loan Document (and the expiration of any applicable grace
period provided in such Loan Document for the cure of that
default); provided, however that after judgment all such sums
shall bear interest at the greater of the Default Rate or the
rate prescribed by applicable law for judgments. The Default
Rate shall be eighteen percent (18%) per annum.
4. PRINCIPAL PAYMENTS. Borrower shall make monthly payments of
principal in the amount of Ninety-Two Thousand Five Hundred
Dollars ($92,500.00), plus interest for seven (7) years, at which
time the entire outstanding principal balance unpaid, plus all
accrued interest shall be due and payable.
5. MATURITY DATE. Provided there is no event of a monetary or
non-monetary default under the Note or Loan Documents, the entire
principal balance and any unpaid charges, together with any
accrued, but unpaid, interest thereon shall be due and payable in
full on November 30, 2005.
6. USE OF PROCEEDS. The proceeds shall be used by Borrower for
refinancing its existing debts with Bank as well as for
Borrower's operating expenses.
7. REPRESENTATIONS AND WARRANTIES. Borrower hereby
represents and warrants to Bank as follows:
A. Good Standing. Borrower is a corporation, duly organized,
validly existing and in good standing under the laws of Florida
and has the power and authority to own its property and to carry
on its business in each jurisdiction in which Borrower does
business.
B. Authority and Compliance. Borrower has full power and
authority to execute and deliver the Loan Documents and to incur
and perform the obligations provided for therein, all of which
have been duly authorized by all proper and necessary action of
the appropriate governing body of Borrower. No consent or
approval of any public authority or other third party is required
as a condition to the validity of any Loan Document, and Borrower
is in compliance with all laws and regulatory requirements to
which it is subject.
C. Binding Agreement. This Agreement and the other Loan
documents executed by Borrower constitute valid and legally
binding obligations of Borrower, enforceable in accordance with
their terms.
D. Litigation. There is no actions suits, or proceedings
involving Borrower pending or, to the knowledge of Borrower,
threatened before any court or governmental authority, agency or
arbitration authority, except as disclosed to Bank in writing and
acknowledged by Bank prior to the date of this Agreement, which
involve or would adversely affect the transactions contemplated
herein or which could have an adverse affect on the Borrower's
business or financial condition.
E. No Conflicting Agreements. There is no charter, bylaw,
stock provision, partnership agreement or other document
pertaining to the organization, power or authority of Borrower
and no provision of any existing agreement, mortgage, indenture
or contract binding on Borrower or affecting its property, which
would conflict with or in any way prevent the execution, delivery
or carrying out of the terms of this Agreement and the other Loan
Documents.
F. Taxes. All taxes and assessments due and payable by
Borrower have been paid or are being contested in good faith by
appropriate proceedings and the Borrower has filed all tax
returns which it is required to file.
G. Financial Statements. The financial statements of Borrower
heretofore delivered to Bank have been prepared in accordance
with GAAP applied on a consistent basis throughout the period
involved and fairly present Borrower's financial condition as of
the date or dates thereof, and there has been no material adverse
change in Borrower's financial condition or operations since
September 30, 1998. All factual information furnished by
Borrower to Bank in connection with this Agreement and the other
Loan Documents is and will be accurate and complete on the date
as of which such information is delivered to Bank and is not and
will not be incomplete by the omission of any material fact
necessary to make such information not misleading.
H. Place of Business. Borrower's chief executive office is
located at 0000 Xxxx XxXxx Xxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000.
I. Environmental. The conduct of Borrower's business
operations and the condition of Borrower's property does not and
will not violate any federal laws, rules or ordinances for
environmental protection, regulations of the Environmental
Protection Agency, any applicable local or state law, rule,
regulation or rule of common law or any judicial interpretation
thereof relating primarily to the environment or Hazardous
Materials.
J. Continuation of Representations and Warranties. All
representations and warranties made under this Agreement shall be
deemed to be made at least as of the date hereof and at the time
of any future advance, if any, hereunder.
8. CONDITIONS PRECEDENT TO FUNDING. The following are
conditions precedent to Bank's obligation to close and fund the
Note and the Borrower agrees to furnish the following to the
Bank, as a condition precedent to closing:
A. Opinion Letter - Written opinion letter addressed to Bank
and Borrower's counsel, from Borrower's attorney, in a form and
substance satisfactory to Bank and its counsel.
B. Corporate Documents - Certified copies of the Articles of
Incorporation and Bylaws of Borrower, and all amendments thereto,
together with a Certificate of Good Standing of Borrower and
proof of qualification to do business in each jurisdiction
business is conducted.
C. An executed Note, Loan Documents and other documents and
instruments necessary or advisable in connection with this Term
Loan.
D. Certification that there exists no material pending or
threatened litigation, the result of which could have an adverse
effect on the business or financial condition of the Borrower.
9. FINANCIAL COVENANTS. Until full payment and performance of
all obligations of Borrower under the Loan Documents, Borrower
will, unless Bank consents otherwise in writing (and without
limiting any requirement of any other Loan Document):
A. Financial Condition. Maintain Borrower's financial
condition as follows, determined in accordance with GAAP applied
on a consistent basis throughout the period involved except to
the extent modified by the following definitions:
i. Funded Debt/EBITDA Coverage Ratio. Borrower will maintain a
minimum Funded Debt/EBITDA Coverage Ratio of not more than
2.50:1.00 throughout the Note term. The Funded Debt/EBITDA
Coverage Ratio shall be tested quarterly beginning with the
December 31, 1998 quarterly financial statements on a trailing
twelve month basis.
ii. Current Maturity Coverage Ratio. Borrower will maintain a
minimum Current Maturity Coverage Ratio of not less than 1.75:
1.00 throughout the Note term.
iii. Current Minimum Ratio. Borrower will maintain at all times
a ratio of current assets to current liabilities of not less than
2.0:1.0 tested quarterly.
B. Financial Statements and Other Information. Maintain a
system of accounting in accordance with GAAP applied on a
consistent basis throughout the period involved, and in the event
of default, permit Bank's officers or authorized representatives
to visit and inspect Borrower's books of account and other
records at such reasonable times and as often as Bank may desire,
and further pay the reasonable fees and disbursements of any
accountants or other agents of Bank selected by Bank for the
foregoing purposes. Unless written notice of another location is
given to Bank, Borrower's books and records will be located at
Borrower's chief executive office set forth above. All financial
statements called for below shah be prepared in form and content
acceptable to Bank and by independent certified public
accountants acceptable to Bank, the same acceptance not to be
unreasonably withheld by Bank.
In addition, Borrower will:
i. Furnish to Bank annual audited unqualified consolidated
financial statements of Borrower for each fiscal year of
Borrower, within one hundred twenty (120) days after the close of
each such fiscal year.
ii. Furnish to Bank company prepared consolidated financial
statements of Borrower for each fiscal quarter of Borrower,
within fifty (50) days after the close of each such period,
together with quarterly compliance certificates.
iii. Furnish to Bank a compliance certificate for (and executed
by an authorized representative of) Borrower concurrently with
and dated as of the date of delivery of each of the financial
statements as required in paragraphs i and ii above, containing
(a) a certification that the financial statements of even date
are true and correct and that the Borrower is not in default
under the terms of this Agreement, and (b) computations and
conclusions, in such detail as Bank may request, with respect to
compliance with this Agreement, and the other Loan Documents,
including computations of all quantitative covenants.
10. AFFIRMATIVE COVENANTS. Until full payment and performance
of all obligations of Borrower under the Note Documents, borrower
will, unless Bank consents otherwise in writing (and without
limiting any requirement of any other Loan Document):
A. Insurance. Maintain insurance with responsible insurance
companies on such of its properties in such amounts and against
such risks as is customarily maintained by similar businesses
operating in the same vicinity, specifically to include fire and
extended coverage insurance covering all assets, business
liability insurance, all to be with such companies and in such
amounts a are satisfactory to Bank and providing for at least 30
days prior notice to Bank of any cancellation thereof.
Satisfactory evidence of such insurance will be supplied to Bank
prior to funding under the Note and 30 days prior to each policy
renewal.
B. Existence and Compliance. Maintain its existence, good
standing and qualification to do business, where required and
comply with all laws, regulations and governmental requirements
including, without limitation, environmental laws applicable to
it or to any of its properties, business operations and
transactions and comply with OHSA, EPA, Pension Guaranty Board
and ERISA.
C. Adverse Conditions or Events. Promptly advise Bank in
writing of (i) any act, omission or undertaking which would
singly or in the aggregate have a materially adverse effect upon
the business, assets, liabilities, financial condition, results
of operations or business prospects of the Borrower, any of its
subsidiaries, or upon the ability of the Borrower to perform any
material obligations arising under the Loan Documents, (ii) any
actual or potential contingent liabilities in excess of Five
Hundred Thousand and No/100 Dollars ($500,000.00), (iii) any
litigation against Borrower claiming damages in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00) (iv) any event that
has occurred that would constitute an event of default under any
Loan Documents and (v) any uninsured or partially uninsured loss
through fire, theft, liability or property damage in excess of an
aggregate of $250,000.00.
D. Taxes and Other Obligations. Pay all of its taxes,
assessments and other obligations, including, but not limited to
taxes, cost or other expenses arising out of this transaction, as
the same become due and payable, except to the extent that same
are being contested in good faith by appropriate proceedings in a
diligent manner.
E. Maintenance. Maintain and preserve all license, trademarks,
privileges, permits, franchises, certificates and the like
necessary for the operation of its business.
F. Payment and Performance. Borrower shall promptly pay and
punctually perform, or shall cause to be promptly paid and
punctually performed, all of the obligations as and when due and
payable and after expiration of any grace period and upon due
notice.
G. Inspection. In the event of default, Borrower shall permit
Bank and its agents to inspect its records, assets and properties
at any time during normal business hours and at all other
reasonable times.
H. Expenses. Borrower shall pay all costs and expenses in
connection with the Note and the preparation, execution, and
delivery of the Loan Documents including, but not limited to,
reasonable fees and disbursements of counsel appointed by Bank,
and all expenses, documentary stamp tax and intangible tax, and
other taxes, appraisals, insurance and all other fees, costs and
expenses, if any, set forth in the Loan Documents, or otherwise
connected with this transaction.
I. Preservation of Agreements. Borrower shall preserve and
keep in full force and effect all agreements, approvals, permits
and licenses necessary for the development, use and operation of
the its assets for their intended purpose or purposes.
J. Books and Records. Borrower shall keep and maintain, at all
times, full, true and accurate books of accounts and records,
adequate to correctly reflect the results of the development, us
and operation of its assets and properties. The Bank shall have
the right to examine such books and records and to make such
copies or extracts therefrom as the Bank shall require.
K. Indemnification. Notwithstanding anything to the contrary
contained in Section 8(I), Borrower shall indemnify, defend and
hold Bank and its successors and assigns harmless from and
against any and all claims, demands, suits, losses, damages,
assessments, fines, penalties, costs or other expenses (including
reasonable attorneys' fees and court costs) arising from or in
any way related to any of the transactions contemplated hereby.
The Borrower's obligations under this paragraph shall survive the
repayment of the Note.
L. Comply with GAAP. Borrower shall comply with generally
accepted accounting principals which are to be applied
consistently throughout the term of the Note.
M. Performance of Loan Documents. Borrower shall duly and
punctually perform all covenants, terms and agreements expressed
as binding upon it under Note and all of the Loan Documents.
11. NEGATIVE COVENANTS. Until full payment and performance of
all obligations of Borrower under the Note and/or Loan Documents,
Borrower will not, without the prior written consent of Bank,
which consent shall not be unreasonably withheld (and without
limiting any requirement of any other Loan Documents):
A. Transfer of Assets or Control. Sell, lease, assign or
otherwise dispose of or transfer any existing assets, except in
the normal course of its business, or enter into any merger or
consolidation, or transfer control or ownership of the Borrower
or form or acquire any subsidiary that would result in the
Borrower not being the surviving entity.
B. Management Change. Change or remove Xxxxx X. Xxxxxx from
his current management positions as President and Chief Executive
Officer of Borrower.
C. Advances to Third Parties. No advances in aggregate of more
than One Million Dollars ($1,000,000.00) at any one time during
the life of the Note except for acquisitions.
D. Other Liens. Create or permit to be created or to remain,
any mortgage, pledge, construction lien or other lien,
conditional sale or other title retention agreement, encumbrance,
claim, or charge on the assets or income therefrom. Any
transaction prohibited under this paragraph shall be null and
void.
E. Character of Business. Change the general character of
business as conducted at the date hereof, or engage in any type
of business not reasonably related to its business as presently
conducted without prior consent of Bank. Bank shall not
unreasonably withhold its consent.
F. Borrower's Certificate of Incorporation. Materially amend
or modify its articles or certificate of incorporation or bylaws.
12. COSTS, EXPENSES AND ATTORNEYS' FEES. Borrower shall pay to
Bank immediately upon demand the full amount of all costs and
expenses, including reasonable attorneys' fees (to include
outside counsel fees and all allocated fees of Bank's in-house
counsel if permitted by applicable law), incurred by Bank in
connection with (a) negotiation and preparation of this Agreement
and each of the Loan Documents, and (b) all other costs and
attorneys' fees incurred by Bank for which Borrower is obligated
to reimburse Bank in accordance with the terms of the Loan
Documents. Additionally, Borrower shall pay any documentary
stamps, intangible taxes and filing, search and recording fees
and the costs of any appraisal and environmental report required
by Bank. Borrower shall also be responsible and liable for, and
shall hold Bank harmless for, all expenses and costs in
connection with the administration and enforcement of any of
Borrower's obligations to Bank. If at any time the State of
Florida shall determine that the Documentary Stamps affixed
thereto, if any, are insufficient, and that additional
Documentary Stamps should be affixed, then Borrower shall pay for
the same, together with any interest or penalties imposed in
connection with such determination, and Borrower hereby agrees to
indemnify and hold Bank harmless therefrom. If any such sums
shall be advanced by Bank, they shall bear interest, shall be
paid and shall be secured as provided in the Loan Documents.
13. DEFAULTS AND REMEDIES. If any one or more of the following
events of default (an "Event of Default") shall occur for any
reason whatsoever (and whether such occurrences shall be
voluntary or involuntary, or come about or be effected by
operation of law or pursuant to or in compliance with any
judgment, decree or order of any court, or any order, rule or
regulation of any administrative or governmental body), that is
to say:
A. Any representation or warranty made herein or in any report,
certificate, financial statement or other instrument furnished in
connection with this Credit Agreement or the borrowings
hereunder, shall prove to be false or misleading in any respect;
B. Default shall occur in the payment of principal or interest
on any indebtedness created hereunder, when and as the same shall
become due and payable, whether at the due date or by
acceleration or otherwise, which remains after the due date of
such payment; or failure of the borrower to make payment of
principal or interest on any other indebtedness beyond any period
or 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;
C. Any default or violation shall occur on the part of the
Borrower in the due observance or performance of any covenant,
agreement or other provision of this Credit Agreement, or any
other agreement, instrument or contract with Bank, other than for
the payment of money, which shall remain uncured past any cure
period provided for herein or therein, and if no such cure period
is specified, if such default shall remain uncured for ninety
(90) days after notice of such default or violation has been
given by Bank to Borrower, or after borrower has knowledge of
such default or violation, whichever is earlier.
D. Borrower shall (i) apply for or consent to the appointment
of a receiver, trustee in bankruptcy for benefit of creditor's,
or liquidator of Borrower or any of Borrower's assets and/or
properties; (ii) admit in writing Borrower's inability to pay its
debts as they mature or generally fail to pay its debts as they
mature; (iii) make a general assignment for the benefit of
credit; (iv) be adjudicated as bankrupt or insolvent (v) file a
voluntary petition in bankruptcy, or a petition or an answer
seeking reorganization or an arrangement with creditors, or
seeking to take advantage of any bankruptcy, reorganization,
insolvency, readjustment of debt, dissolution of liquidation law
or statute of an answer admitting an act of bankruptcy alleged in
a petition filed against it in any proceeding under any such law;
or (vi) take any action for the purpose of affecting any of the
foregoing;
E. An order, judgment or decree shall be entered against the
Borrower without its application, approval or consent, or by any
court of competent jurisdiction, approving a petition seeking its
reorganization or appointing a receiver, trustee or liquidator of
the Borrower or of all or a substantial part of any of its
assets, and such order, judgment or decree shall continue
unstayed and in effect for a period of thirty (30) days from the
date of entry thereof;
F. Final judgments for the payment of money in excess of Two
Hundred Fifty Thousand Dollars ($250,000.00), shall be rendered
against the Borrower and the same shall remain undischarged for a
period of thirty (30) consecutive days during which execution
shall not be effectively stayed;
G. Any monies, deposits or other property of the Borrower now
or hereafter on deposit with, or in the possession or under
control of the Bank, shall be attached or become subject to
distraint proceedings or any order or process of court, provided
Borrower has not obtained a court order staying such proceeding;
H. Any material adverse change in the financial or business
condition of Borrower;
I. Borrower's corporate existence is changed;
J. Borrower fails to indemnify and pay Bank, upon demand, for
additional Documentary Stamps imposed by any governmental entity
within fifteen (15) days of such demand by Bank, including the
payment of any penalties, interest, and other charges;
K. Borrower defaults on any other obligation to Bank;
L. Borrower, without first obtaining the prior written consent
of Bank, creates or permits any lien, encumbrance, charge, or
security interest of any kind to exist on any of its existing
trademarks and brands, whether now owned or hereafter acquired,
except in the normal course of its business.
THEN, and in every such Event of Default, the Bank may, at its
option, upon written notice of not less than ten (10) days by
certified mail to Borrower, (i) declare all indebtedness of
principal and interest hereunder forthwith to be due and payable,
whereupon the Note shall become due and payable, both as to
principal and interest, without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived,
anything contained herein or in such Note to the contrary
notwithstanding, and (ii) exercise all legal rights and remedies
against Borrower or any assets for the indebtedness of Borrower
to Bank. Bank shall also have the following specific rights and
remedies;
(a) To require Borrower to assemble and make available to Bank
at a place to be designated by Bank which is also reasonably
convenient to Borrower all documentation regarding Borrower's
right, title and interest in the assets and properties.
(b) To exercise any and all rights of set-off which Bank may
have against any account funds (excluding investment funds), or
assets and properties belonging to Borrower which shall be in
Bank's possession or under its control.
(c) To cure such default, with the result that all costs an
expenses incurred or paid by Bank in effecting such cure shall be
additional charges on the Note which bear interest at the
interest rate of the Note and are payable upon demand.
The proceeds of any disposition of the assets and/or
properties for the Note shall be used to satisfy the following
items in the order they are listed:
(a) The expenses of taking, removing, storing, repairing,
holding, and selling the assets and/or properties, including any
legal cost and attorneys' fees. If the Note is referred to an
attorney for collection, Borrower and all others liable for the
Note jointly and severally agree to pay reasonable attorneys'
fees (including appellate, administrative and bankruptcy fees and
costs) and legal expenses.
(b) The expense of liquidating or satisfying any liens, security
interest, or encumbrances on the assets and/or properties which
may be prior to the security interest of Bank.
(c) Any unpaid fees, accrued interest, and then the unpaid
principal amount of the Note.
(d) Any other indebtedness of Borrower to Bank.
If the proceeds realized from the disposition of the asset and/or
properties shall fail to satisfy any of the foregoing items,
Borrower and all others liable for the Note shall forthwith pay
any deficiency to Bank upon demand.
14. CROSS DEFAULT. A default or breach under any of the terms
or conditions of any credit facility with Bank, or any agreement
to which Borrower is obligated, shall at Bank's option,
constitute a default under the Note and this Credit Agreement.
15. NOTICE. All notices required or allowed to be given
hereunder shall be delivered by hand or sent by certified mail
return receipt requested, overnight courier or facsimile
transmission, to the party to which such notice is to be given as
follows:
If to Borrower:
THE XXXXXXX CO.
0000 Xxxx XxXxx Xxxx
Xxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, CFO
If to Bank:
NATIONSBANK, N.A.
Commercial Banking
XxxxxxxXxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx,
Xx. Vice President
and a copy to:
XXXX X. MAY, ESQUIRE MAY, XXXXXXX & DAVELL, P.A. NationsBank
Tower, Suite 2602 One Financial Plaza Xxxx Xxxxxxxxxx, XX 00000
Provided that additional or other addresses for the giving of
notice may be thereafter designated by the giving of written
notice thereof to the other party. Such notices shall be deemed
given or made three (3) business days following deposit in the
U.S. Mail, certified return receipt requested, or immediately
upon receipt if delivered by hand, overnight courier or facsimile
transmission addressed as herein provided.
16. MISCELLANEOUS. Borrower and Bank further covenant and agree
as follows, without limiting any requirement of any other Loan
Document:
A. Cumulative Rights and No Waiver. Each and every right
granted to Bank under any Loan Document, or allowed it by law or
equity shall be cumulative of each other and may be exercised in
addition to any and all other rights of Bank, and no delay in
exercising any right shall operate as a waiver thereof, nor shall
any single or partial exercise by Bank of any right preclude any
other or future exercise thereof or the exercise of any other
right. Borrower expressly waives any presentment, demand,
protest or other notice of any kind, excluding a notice of intent
to accelerate and notice of acceleration under which
circumstances, Bank shall give notice to Borrower. No notice to
or demand on Borrower in any case shall, of itself, entitle
Borrower to any other or future notice or demand in similar or
other circumstances.
B. Applicable Law. This Credit Agreement and the rights and
obligations of the parties hereunder shall be governed by and
interpreted in accordance with the laws of Florida and applicable
United States federal law.
C. Amendment. No modification, consent, amendment or waiver of
any provision of this Credit Agreement, nor consent to any
departure by Borrower therefrom, shall be effective unless the
same shall be in writing and signed by an officer of Bank, and
then shall be effective only in the specified instance and for
the purpose for which given. This Credit Agreement is binding
upon Borrower, its successors and assigns, and inures to the
benefit of Bank, its successors and assigns; however, no
assignment or other transfer of Borrower's rights or obligations
hereunder shall be made or be effective without Bank's prior
written consent, nor shall it relieve Borrower of any obligations
hereunder. There is no third party beneficiary of this Credit
Agreement.
D. Documents. All documents, certificates and other items
required under this Credit Agreement to be executed and/or
delivered to Bank shall be in form and content satisfactory to
Bank and its counsel.
E. Partial Invalidity. The unenforceability or invalidity of
an provision of this Credit Agreement shall not affect the
enforceability or validity of any other provision herein and the
invalidity or unenforceability of any provision of any Loan
Document to any person or circumstance shall not affect the
enforceability or validity of such provision as it may apply to
other persons or circumstances.
F. Indemnification. Notwithstanding anything to the contrary
contained in paragraph E above, Borrower shall indemnify, defend
and hold Bank and its successors and assigns harmless from and
against any and all claims, -demands, suits, losses, damages,
assessments, fines, penalties, costs or other expenses (including
reasonable attorneys' fees and court costs) arising from or in
any way related to any of the transactions contemplated hereby
resulting from Borrower's actions and not due to the negligence,
malfeasance or misfeasance of the Bank. The Borrower's
obligations under this paragraph shall survive the repayment of
the Note.
G. Survivability. All covenants, agreements, representations
and warranties made herein or in the other Loan Documents shall
survive the making of the Loan and shall continue in full force
and effect so long as the Note is outstanding or the obligation
of the Bank to make any advances under the Note shall not have
expired.
H. Personal. This Credit Agreement is personal in nature and
may not be assigned.
I. Gender/Plural. Wherever used herein the singular number
shall include the plural and the plural the singular, and the use
of any gender shall include all genders. This Agreement shall
inure to the benefit of and be binding upon the parties hereto
and their heirs, successors, personal representatives and
assigns.
J. Document Conflict. If the terms and provisions of this
Credit Agreement conflict with any terms and provisions of any
other related loan documents executed in connection herewith, the
terms and provisions herein shall control.
17. WAIVER OF JURY TRIAL. BORROWER AND BANK HEREBY KNOWINGLY,
IRREVOCABLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING,
DEFENSE OR COUNTERCLAIM BASED ON THIS CREDIT AGREEMENT, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS CREDIT
AGREEMENT, OR PROMISSORY NOTE, OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO OR TO ANY LOAN
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BORROWER
AND BANK ENTERING INTO THE SUBJECT TERM LOAN TRANSACTION.
IN WITNESS WHEREOF, the parties hereto set their hands and seals
the day and year first above written.
Witnesses: BORROWER:
THE XXXXXXX CO.,
/s/ F. Xxxxxx Xxxxxxxx a Florida corporation
/s/ Xxxxx X. Xxxxx
By /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx,
Printed Name of Witnesses Chief Financial Officer
[Corporate Seal]
