EXHIBIT 10.3
LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of the 30th day of
December, 1997, by and between STRETCHER MOBILE FUELING, INC., a Florida
corporation ("Stretcher Mobile"), STRETCHER REALTY, INC., a Florida corporation,
and STRETCHER WEST, INC., a California corporation (hereinafter collectively
referred to as "Borrower"), and BANKATLANTIC, a Federal Savings Bank
(hereinafter referred to as "Lender").
W I T N E S S E T H:
WHEREAS, Borrower desires to obtain a revolving line of credit from
Lender in the amount of up to Five Million and 00/100 Dollars ($5,000,000.00) in
order to provide working capital to the Borrower, and, Lender is willing to
extend such credit to the Borrower of up to such amount upon the terms and
conditions set forth herein (the "Revolving Loan" or the "Loan").
NOW, THEREFORE, for and in consideration of the sum of Ten and 00/100
Dollars ($10.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the loans
or extensions of credit heretofore, now or hereafter made or to be made for the
benefit of the Borrower by the Lender, the parties do hereby agree as follows:
Article 1
RECITALS AND DEFINITIONS
1.1 RECITALS. The foregoing recitals are acknowledged by the parties to
be true and correct, and are incorporated herein by reference.
1.2 DEFINITIONS. As used in this Agreement, the terms listed below
SHALL HAVE THE following meanings:
(a) "ADVANCE": A disbursement by the Lender of a portion of the
Revolving Loan proceeds in accordance with the terms and provisions of this
Agreement.
(b) "AGREEMENT" or "LOAN AGREEMENT": This Loan Agreement.
(c) "ASSIGNMENT OF LIFE INSURANCE POLICY": A collateral assignment
of the first Five Hundred Thousand and 00/100 Dollars ($500,000.00) of proceeds
of a life insurance policy in an amount of not less than Two Million and 00/100
Dollars ($2,000,000.00) on the life of Xxxxxxx X. Xxxxxxxxx in favor of Lender.
(d) "BORROWER": Collectively, STRETCHER MOBILE FUELING, INC., a
Florida corporation, STRETCHER REALTY, INC., a Florida corporation, and
STREICHERWEST, INC., a California corporation.
(e) "BORROWER'S COUNSEL OPINION LETTER": A letter from Borrower's
Counsel, in form and substance satisfactory to Lender and Lender's Counsel,
opining as to certain matters concerning the Loan.
(f) "Business Days": Days upon which the Lender is open for normal
business.
(g) "CASH COLLATERAL ACCOUNT". A cash collateral account pledged by
Borrower in favor of Lender, into which Lender shall deposit after receipt
thereof, payments on Borrower's Receivables, to be applied against the Revolving
Loan facility balance.
(h) "CLOSING": The time of the execution and delivery of this
Agreement by Borrower and Lender.
(i) "Code": The Internal Revenue Code of 1986, as amended from time
to time, and applicable Department of Treasury regulations thereunder.
(j) "CREDIT FACILITV LETTER": That certain letter executed by and
between Lender and Borrower dated November 5, 1997, and all amendments thereto,
the terms and conditions of which are hereby incorporated by reference herein,
but in the event of any conflict or discrepancy between the terms of this
Agreement and the Credit Facility Letter, the terms of this Agreement shall
control.
(k) "Dollars" or "$": United States Dollars.
(l) "ELIGIBLE RECEIVABLES": Those Receivables which are Receivables
of Xxxxxxxxx Mobile arising out of sales of tangible personal property made by
Xxxxxxxxx Mobile or services rendered by Xxxxxxxxx Mobile in the ordinary course
of its business, which are no more than ninety (90) days old from the invoice
date, according to the original terms of sale, and, the payment of which is not
in dispute and in which the Lender has a first priority security interest,
provided however, that if fifty (50%) percent or more of the Receivables from
any account debtor are more than ninety (90) days old, all of said account
debtor's Receivables shall be deemed ineligible. The Lender may treat any
receivable as ineligible: (i) if any warranty contained in this or any related
agreement is breached with respect thereto; (ii) if the customer or account
debtor has disputed liability or made any claim with respect to the receivable
or the merchandise covered thereby or with respect to any other receivable due
from said customer to Xxxxxxxxx Mobile; (iii) if the customer or account debtor
has filed a petition for bankruptcy or any other application for relief under
the Bankruptcy Act, assigned for the benefit of creditors, or if any petition or
any other application for relief under the Bankruptcy Act has been filed against
the said customer or account debtor, or if the customer or account debtor has
failed, suspended business, become insolvent, or had or suffered a receiver or
trustee to be appointed for any of its assets or affairs; (iv) if the customer
or account debtor is located outside the United States; (v) if the receivable is
a government receivable in which the Lender will not be able to perfect its lien
under the
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Federal Assignment of Claims Act for any reason whatsoever, excepting for
receivables due and owing from the United States Post Office which shall
constitute eligible receivables subject to the other exclusions set forth in
this paragraph; (vi) if the Receivable is offset, in whole or in part, by a
credit due and owing from Xxxxxxxxx Mobile to that account debtor; (vii) if the
Receivable is due and owing from an account debtor who is also a creditor of
Xxxxxxxxx Mobile; (viii) if the Receivable represents sums due and owing for
work and/or service currently being rendered by Xxxxxxxxx Mobile but not yet
completed by Xxxxxxxxx Mobile; (ix) if the Receivable is due and owing from an
affiliate corporation or related entity of Xxxxxxxxx Mobile or represents an
intercompany account; (x) if the Receivable represents a consignment sale or
warranty work; (xi) if the Receivable represents a C.O.D. sale; (xii) if the
Receivable represents sums due and owing from an employee of Xxxxxxxxx Mobile;
(xiii) if the Receivable represents retainage due and owing to Xxxxxxxxx Mobile;
(xiv) if the Receivable represents a Xxxx and Hold Invoice for items which have
been billed and are not yet due and payable; (xv) if the Receivable represents
the billing for inventory which has not been delivered to said account debtor;
(xvi) if the Receivable arises from a progress billing for work not yet
completed and delivered to the customer; or (xvii) if the Lender believes, in
its credit judgment in Lender's reasonable discretion, that collection of such
Receivable is insecure or that it may not be paid by reason of financial
inability to pay or otherwise or that such Receivable is not suitable for use as
collateral hereunder.
(m) "ERISA": The Employee Retirement Income Security Act of 1974,
as amended from time to time.
(n) "EVENT OF DEFAULT": The occurrence of any one or more of the
Events of Default described in Article 9 hereof.
(o) "FINANCINA STATEMENTS": Financing Statements from Borrower to
Lender to perfect Lender's security interest in the property described in the
Security Agreements.
(p) "Generally Accepted Accounting Principles" or "GAAP": Those
principles of accounting set forth in opinions of the Financial Accounting
Standards Board of the American Institute of Public Accountants or which have
other substantial authoritative support and are applicable in the circumstances
as of the date of any report required herein or as of the date of an anplication
of such orinciples as required herein.
(q) "GOVERNMENTAL AUTHORITV": Any federal, state, county, municipal
or other governmental department, commission, board, bureau, court, agency, or
any instrumentality of any other governmental entity.
(r) "GOVERNMENTAL REQUIREMENTS": Any law, statute, code, ordinance,
order, rule, regulation, judgment, decree, writ, injunction, franchise, permit,
certificate, license, authorization. or other direction or renuirement of anY
Governmental Authority now existinn
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or hereafter enacted, adopted, promulgated, entered or issued applicable to the
Loan or to the Borrower.
(s) "INDEBTEDNESS": Collectively, all of each Borrowers' presently
existing or hereafter created or assumed obligations to the Lender, including
without limitation, obligations for borrowed money, notes payable and drafts
accepted representing extensions of credit (whether or not representing
obligations for borrowed money), obligations representing the Loan and any
modifications or renewals thereof, obligations representing indebtedness to the
Lender whether or not assumed, secured or unsecured, however and wherever
incurred, acquired or evidenced, whether primary or secondary, direct or
indirect, absolute or contingent, joint or several or due or to become due,
including without limitation all such obligations, liabilities and all
indebtedness and obligations now or hereafter owed by each Borrower to Lender,
its affiliates, successors and/or assigns.
(t) "INITIAL ADVANCE": The first Advance of the Revolving Loan
proceeds.
(u) "LANDLORD'S WAIVER OF LIEN AGREEMENT": Waiver Agreements from
all Landlords where any Borrower leases business properties waiving the
Landlord's lien at that location to the lien and effect of the Loan.
(v) "LEASES: Leases for all locations where each Borrower leases
property in connection with its business operations.
(w) "LIFE INSURANCE POLICV": A life insurance policy on the life of
Xxxxxxx X. Xxxxxxxxx in an amount not less than Two Million and 00/100 Dollars
($2,000,000.00).
(x) "LOAN ACCOUNT". Borrower's account on the books of the Lender
in which Advances will be recorded, as well as payments made on the Revolving
Loan and other appropriate debits and credits as provided in this Agreement.
(y) "LOAN DISBURSEMENT ACCOUNT". The account established pursuant
to Article 3, Section 3.4 herein, maintained with Lender under account no.
055927360.
(z) "LOAN DOCUMENTS": This Agreement, the Revolving Note, the
Security Agreements, the Assignment of Life Insurance Policy, the Security and
Cash Collateral Account Agreement, and all other associated loan documents
executed in connection with the making of the Loan (and any modification,
renewal or extension thereof).
(aa) "Maturity Date": As to the Loan as evidenced by the Nose,
October 31, 1999, upon which date the entire principal balance and accrued
interest and all other applicable charges under the Loan shall become due and
payable in full.
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(bb) "REVOLVING NOTE OR "NOTE": A Master Revolving Promissory Note
in the principal amount of Five Million and 00/100 Dollars ($5,000,000.00) from
Borrower to Lender dated as of even date herewith, and any modification,
amendment, renewal or extension thereof evidencine the Revolvinp Loan.
(cc) "Person": As the case may be, any corporation, natural person,
firm, joint venture, partnership, trust, unincorporated organization and
government, or any department or agency of any government.
(dd) "Plan": Any pension plan which is governed by the terms and
provisions of Title IV of ERISA and in respect of which the Borrower or a
commonly controlled entity of the Borrower is an "Employer" (as defined in
Section 407(d)(7) of ERISA.
(ee) "Prime Rate": The interest rate announced by the Lender from
time to time as its prime rate, which rate is purely discretionary and is not
necessarily the best or lowest rate charged borrowing customers of the Lender.
(ff) "RECEIVABLES": All accounts, accounts receivable, general
intangibles, contract rights and other obligations of any kind, whether now
owned or hereafter acquired by Xxxxxxxxx Mobile and all proceeds ofthe foregoing
and all rights now or hereafter existing in and to all security agreements,
leases and other contracts security or otherwise relating to any such accounts,
contract rights, chattel paper instruments, general intangibles and obligations
and all proceeds, profits, deposits, products and accessions of and to all of
the foregoing.
(gg) "REPORTABLE EVENT": Any ofthe events set forth in Section
4043(b) of ERISA or the regulations thereunder.
(hh) "SECURITY AGREEMENTS": Collectively, Security Agreements of
even date herewith executed by each Borrower in favor of Lender, securing the
Note and all other Indebtedness of Borrower to Lender, which is a valid first
lien on all of the Borrower's accounts, accounts receivables, inventory, chattel
paper, general intangibles, fixtures, furniture, instruments, equipment and
personal property now owned or hereafter acquired by Borrower and all proceeds
of the foregoing, subject only to the Permitted Encumbrances (as defined in the
Security Agreements).
(ii) "SECURITY AND CASH COLLATERAL ACCOUNT AGREEMENT". A Security
and Cash Collateral Account Agreement whereby and "hereunder payment of all of
Borrower's Receivables shall be deposited into the Cash Collateral Account, to
be applied against the Revolving Loan facility balance.
(j) "SOLVENT": That, at the time of determination, (i) the fair
market value of the Borrower's assets (both at fair valuation and at present
fair saleable value on an orderly
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basis) is in excess of the total amount of its liabilities, including contingent
obligations; (ii) it is then able and expects to be able to pay its debts as
they mature; and (iii) it has capital sufficient to carry on its business as
conducted and as proposed to be conducted.
1.3 OTHER DEFINITIONAL PROVISIONS. (a) The terms "material" and
"materially" shall have the meanings ascribed to such terms under Generally
Accepted Accounting Principles as such would be applied to the business of the
Borrower, except as the context shall clearly otherwise set forth; (b) all of
the terms defined in this Agreement shall have such defined meanings when used
in other documents issued under, or delivered pursuant to, this Agreement,
unless the context shall otherwise require; (c) all terms defined in this
Agreement in the singular shall have comparable meanings when used in the
plural, and vice versa; (d) accounting terms to the extent not otherwise defined
shall have the respective meanings given them under, and shall be construed in
accordance with Generally Accepted Accounting Principles; (e) the words
"hereby", "hereto", "hereof", "herein", "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision ofthis Agreement; (f) the masculine and neuter genders
are used herein and whenever used shall include the masculine, feminine and
neuter as well; and (g) whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the heirs, personal
representatives, successors and assigns of such parties unless the context shall
expressly provide otherwise.
Article 2
THE LOAN
2.1 REVOLVING LOAN. Provided there does not exist an Event of Default,
and no event with which notice or lapse of time or both would become such an
Event of Default, and subject to the terms and provisions of this Agreement,
Lender will, under the Note, lend or advance for the account of Borrower from
time to time, and, Borrower may borrow, repay and re-borrow (provided that
unless Borrower intends to pay and satisfy the Loan in full, Borrower shall not
reduce the outstanding principal balance under the Loan to a sum of less than
One Thousand and 00/100 Dollars ($ 1,000.00)) such amounts as may be required
for the purpose of providing working capital to the Borrower, not exceeding in
the aggregate an amount equal to (i) eighty-five percent (85%) of Eligible
Receivables, less such reserves as Lender, in its sole discretion elects to
establish, provided further that a Receivable may be devalued in such amount as
shall be determined by Lender in its sole discretion due to "Dilution" which is
defined as and is the result of non-cash credits posted against the Receivable
which result in payment or other satisfaction of all or any portion of the
Receivable for reasons other than full payment of the Receivable in cash (the
"Borrowing Base"); or, the sum of Five Million and 00/100 Dollars
($5,000,000.00), whichever is less. It is acknowledged that the Borrowing Base
under the Loan may be adjusted during the term ofthe Loan by Lender at any time,
in its sole discretion, based upon the result of the audits and collateral
examinations conducted during the term ofthe Loan. The aggregate amounts
outstanding under the Loan shall not at any time exceed the amount provided
above, and in the event the amount outstanding at any time exceeds the permitted
amount, said excess amount shall bear interest at the rate set forth in the Note
and shall be due and payable in full on DEMAND.
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2.2 AUDIT FEES. The Audit Fee due and owing from Borrower to Lender in
connection with the audits set forth in Article 8, Section 8.5 herein shall be
based upon a charge of Four Hundred Twenty and 00/100 Dollars ($420.00) per day,
plus expenses, which per diem rate is subject to change at any time.
2.3 LOAN ACCOUNT. All Advances and paydowns hereunder and under the
Revolving Note shall be recorded by Lender in the Loan Account.
2.4 LOAN DOCUMENTS. Borrower's obligation to repay the Loan is
evidenced by the Note delivered simultaneously herewith, which sets forth the
method for payment, rates of interest, and such further terms as are therein set
forth. The repayment of the Note and the Indebtedness is to be secured by the
following documentation, which documents Borrower shall deliver, or cause to be
delivered, to Lender simultaneously with the delivery of the Note and which
documents must be received prior to any funding hereunder:
(a) The Security Agreements, in form and substance satisfactory to
Lender and Lender's counsel.
(b) Financing statements filed in such public off~ces as Lender and
Lender's counsel may deem necessary to perfect a security interest in any ofthe
Security Agreements.
(c) The Security and Cash Collateral Account Agreement, in form and
substance satisfactory to Lender and Lender's Counsel. It is acknowledged that
on or before July 1, 1998, Borrower and Lender shall enter into a Security, Cash
Collateral and Lockbox Agreement whereby and "hereunder Borrower shall direct
all account debtors to remit all payments to a lockbox to be maintained with and
administered by Lender, with such collections to be deposited into the Cash
Collateral Account, to be applied against the Loan facility balance.
(d) Borrower's Counsel Opinion Letter, in form and substance
satisfactory to Lender and Lender's Counsel, from Borrower's counsel opining as
to certain matters concerning the Loan.
(e) Such policies of liability insurance, worker's compensation
insurance and hazard insurance (with fire extended coverage, vandalism and
mischief protection) as the Lender may reasonably request, subject to a standard
loss-payee's and additional insured's endorsements, as applicable, in the
Lender's favor, and providing at least thirty (30) days prior written notice of
any cancellation, modification or non-renewal of the insurance coverage.
(f) Incumbency Certificate and Resolutions of the directors of each
Borrower authorizing the Loan, and the execution of all Loan Documents related
thereto.
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(g) Certificates of Good Standing evidencing that each Borrower is in
good standing under the laws ofthe State of Florida and the State of California,
as applicable, and in each other state in which it is required to be qualified
to conduct business.
(h) Certified copy of Articles of Incorporation and By-Laws of each
Borrower.
(I) Evidence of compliance by each Borrower with the Florida Fictitious
Name Act. if and as applicable.
(j) Certified copies of the Leases in connection with all leased
premises of each Borrower.
(k) Landlord's Waiver of Lien Agreement(s) executed by all landlords at
business locations of Borrower waiving the landlord's lien at such locations to
the lien and effect of the Loan.
(1) Life Insurance Policy in an amount of not less than Two Million and
00/100 Dollars ($2.000.000.00) on the life of Xxxxxxx X. Xxxxxxxxx.
(m) Collateral Assignment of Life Insurance Policy assigning the first
Five Hundred Thousand and 00/100 Dollars ($500,000.00) of proceeds under the
Life Insurance Policy to Lender.
(n) Consolidated financial statements of the Borrower, in form and
substance acceptable to Lender.
(o) Such other documentation as may be required by Lender or Lender's
Counsel.
Article 3
MANNER OF MAKING LOAN ADVANCES
3.1 ADVANCE REQUEST. Each Advance to the Borrower under the Revolving
Loan shall be made by the Lender upon Lender's initiation of said Advance or
upon written request of the Borrower stating the date on which the Advance is to
be made (the "Borrowing Date"), and the principal amount of the Advance
requested, delivered at least one (1) day prior to the date on which the Advance
is to be made. Any notice delivered under this sub-section shall be irrevocable
and bind the Borrower to consummate the Advance on the Borrowing Date.
3.2 INTENTIONALLY DELETED.
3.3 BORROWING BASE CERTIFICATE. Borrower shall provide to Lender a
Borrowing Base Certificate in form and content acceptable to Lender (the form of
said Borrowing Base Certificate
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being appended hereto and made a part hereof as Exhibit "A") not less than
monthly within fifteen (15) days of the end of each monthly period in each
fiscal year of Borrower.
3.4 LOAN DISBURSEMENT ACCOUNT. The proceeds of any Advance to the
Borrower shall, on the date of such Advance, be deposited in immediately
available funds in the Loan Disbursement Account, which shall be a demand
deposit account maintained with Lender.
Article 4
INTEREST
All interest under the Loan shall be computed on the basis of a year
containing three hundred sixty (360) days for the actual number of days elapsed.
Interest shall be due and payable in accordance with the terms and provisions
ofthe Note, and interest shall accrue at the rate of interest provided in the
Note for each Advance thereunder. Payments of principal, interest, fees or other
amounts made by the Borrower shall be made to the Lender at the Lender's of
fices located at 0000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000, for the account of Lender, in Dollars and in immediately
available funds before 2:00 p.m. (Florida time) on the date such payment is due.
The Lender shall deem any payment made by or on behalf of the Borrower that is
not made in immediately available funds and prior to 2:00 p.m. (Florida time) to
be a nonconforming payment, which shall not be deemed to be received by the
Lender until the later of (a) the time such funds become available funds or (b)
the next Business Day. Any non-conforming payment may constitute or become an
Event of Default hereunder. Interest shall continue to accrue on any principal
as to which a non-conforming payment is made until the later of (a) the date
such funds become available funds or (b) the next Business Day. All payments to
be made by the Borrower on account of principal, interest and/or fees, shall be
made without diminution, setoff, recoupment or counterclaim.
Article 5
CONDITIONS PRECEDENT TO FIRST ADVANCE AND ADDITIONAL ADVANCES
5.1 The obligations of Lender to make the Initial Advance and all
additional Advances under the Revolving Loan are subject to the following
conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. The representations, covenants and
warranties made by Borrower in this Agreement shall be true and correct on and
as of the date of such Advance.
(b) NO DEFAULT. There shall be no default, and no event which with
notice or lapse of time or both would become an Event of Default, under this
Agreement, the Revolving Note, any of the Security Agreements, or any other Loan
Document.
(c) PRE-FUNDING AUDIT: A pre-funding audit ofthe Borrower's books,
records and accounts receivable, which must result in findings satisfactory to
Lender, in Lender's sole
9
and absolute discretion. The pre-funding audit shall be at the sole cost and
expense of Borrower.
(d) NO MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change in the business or financial condition of any Borrower or in the
value ofthe Collateral (as said term is defined in the SecuritY Acreements)
since November 5, 1997.
(e) LIEN AND JUDGMENT SEARCHES. Lien and judgment searches of each
Borrower shall have been conducted with the Florida Secretary of State and in
any other state or jurisdiction as shall be required by Lender, which must
result in findings satisfactory to Lender, in Lender's sole discretion.
(f) CREDIT FACILITY LETTER. All terms and provisions of the Credit
Facility Letter shall have been complied with in full.
(g) DELIVERY OF LOAN DOCUMENTS. All of the Loan Documents shall have
been duly executed and delivered to Lender, and the Financing Statements shall
have been recorded in the appropriate public offices.
(h) DELIVERY OF OTHER DOCUMENTS. Borrower shall have delivered, or
caused to be delivered to Lender, the other documents required under Article 2
hereof, and shall have also delivered or caused to be delivered to Lender, the
followine:
(i) Annual reviewed financial statements of the Borrower, in form and
substance acceptable to the Lender, prepared in accordance with GAAP, by
certified public accountant(s) acceptable to the Lender.
(ii) Report on Receivables evidencing that there are adequate Eligible
Receivables to support the Initial Advance or additional Advances, as
applicable.
(iii) Such policies of liability insurance, worker's compensation
insurance and hazard insurance (with fire extended coverage, vandalism and
mischief protection) as Lender may reasonably request subject to a standard
loss-payee's and additional insured's endorsements, as applicable, in the
Lender's favor.
(iv) Such other certification or documentation to be executed by
Borrower as may be reasonably required by Lender or Lender's counsel pertaining
to the closing of the Initial Advance and all subsequent Advances of the
proceeds hereunder, it being understood that all such items shall be promptly
delivered prior to Lender's obligation to making further Advances hereunder.
Article 6
USE OF LOAN PROCEEDS; MARGIN STOCK
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The proceeds of the Revolving Loan shall be used to support the
Borrower's general working capital requirements. Borrower does not own any
margin securities and no portion of any Advance and, no portion of the Loan,
will be used for the purpose of reducing or retiring any indebtedness which was
originally incurred by Borrower to purchase any margin securities, and neither
the making of any and all loans and Advances nor the use of the proceeds thereof
will violate or be inconsistent with the provisions of Regulations G, T, U or X
of the Board of Governors of the Federal Reserve Systems of the United States.
Article 7
REPRESENTATIONS AND WARRANTIES
7.1 Borrower represents and warrants to Lender that, so long as credit
remains available to the Borrower or there is any outstanding balance due under
the Note, as secured by the Loan Documents:
(a) Borrower has the power to engage in all the transactions
contemplated by this Agreement and has full power, authority and legal right to
execute and deliver, and to comply with its respective obligations under the
Loan Documents, which documents constitute the legally binding obligations of
each Borrower enforceable against each Borrower in accordance with their
respective terms.
(b) To the best of its knowledge and belief, there is no suit,
action, or proceeding pending or threatened against or affecting any Borrower,
before or by any court, administrative agency or other Governmental Authority
which brings into question the validity of the transactions contemplated hereby
or would interfere with the ability of any Borrower to comply with the terms
hereof.
(c) Each Borrower is in good standing within the State in which it
is incorporated. Borrower, prior to closing, will deliver to Lender: (i)
resolutions certified as true by the secretary of each Borrower authorizing such
Borrower's participation in connection with the transactions contemplated herein
and execution of the Note and related Loan Documents, (ii) incumbency
certificates of each Borrower, (iii) certified copies of the Articles of
Incorporation and By-laws of each Borrower, and (iv) corporate Certificates of
Good Standing of each Borrower.
(d) Except as otherwise disclosed on Exhibit "B" appended hereto
and made a part hereof, during the one (1) year period preceding the date of
closing, no Borrower has been known as or used any corporate of fictitious names
other than the corporate name of such Borrower on the Closing date. All trade
names or styles under which the Borrower sells inventory or equipment or creates
receivables or to which instruments in payment of Receivables are made payable,
are set forth on Exhibit "B".
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(e) Each Borrower owns or possesses all intellectual property
required to conduct its businesses as now and presently planned to be conducted
without, to its knowledge, conflict with the rights of others.
(f) Each Borrower is Solvent after giving affect to the
transactions contemplated by the Loan Documents.
(g) Neither the execution nor delivery of any of the Loan
Documents, nor any other document relating hereto, will conflict with or result
in a breach of any of the provisions of the Charter, Articles of Incorporation
or By-Laws, where applicable, of any Borrower, or of any applicable law,
judgment, order, writ, injunction, decree, rule or regulation of any court,
administrative agency or other Governmental Authority, or of any agreement or
other instrument to which any Borrower is a party or by which any of them is
bound or constitute a default under any thereof, or result in the creation or
imposition of any lien, charge or encumbrance upon any property of any Borrower,
other than those created under this transaction in favor of Lender.
(h) No consent, approval or other authorization of or by any
Governmental Authority is required in connection with the execution or delivery
by Borrower of the Loan Documents, or compliance with the provisions hereof or
thereof.
(i) There are no actions, suits or proceedings pending or, to the
knowledge of Borrower, overtly threatened against or affecting the Borrower at
law or in equity, or before or by any Federal, State, Provincial, municipal or
other Governmental Authority, which involve any of the transactions herein
contemplated or the possibility of any judgment or liability which would result
in any material adverse change in the business, operations, properties or assets
or in the financial condition of any Borrower. No Borrower is in default with
respect to (a) any judgment, order, writ, injunction or decree or (b) any rule
or regulation of any court or Federal, State, municipal or other Governmental
Authority, which would have a material adverse effect on its business,
properties or condition (financial or otherwise).
(j) Subject to any limitation stated thereon or by any Borrower in
writing, all balance sheets, earnings statements and other financial data which
have been or shall hereafter be furnished to the Lender to induce it to enter
into this Agreement or otherwise in connection herewith, do or will fairly
represent the financial condition of the Borrower as of the dates and the
results of their operations for the period for which the same are furnished to
the Lender and have been or will be prepared in accordance with Lender's
requirements, and that all other information, reports and other papers and data
furnished to the Lender are or will be, at the time the same are so furnished,
accurate and correct in all material respects and complete insofar as
completeness may be necessary to give the Lender a true and accurate knowledge
ofthe subject matter. There are no material liabilities of any kind ofthe
Borrower as of the date of the most recent financial statements which are not
reflected
12
therein. There have been no materially adverse changes in the financial
condition or operation of any Borrower since the date of such financial
statements. At Lender's request, Borrower shall provide financial statements
prepared in accordance with Lender's requirements, represented by Borrower that
said financial statements are fairly prepared and consistent with prior
statements provided to the Lender or certified by their respective accountants
that said financial statements are true and accurate, on an annual basis and
interim basis as more fully set forth herein.
(k) Borrower will pay all obligations, including tax claims, when
due, except such as the Borrower contests in an appropriate proceeding, in which
event Borrower shall furnish to Lender, if requested, a bond or other security
satisfactory to Lender in an amount sufficient to protect Lender and its
interest herein.
(l) There is no material uncured default on the part of any
Borrower under this Agreement, the Revolving Note, any of the Security
Agreements, or any of the other Loan Oocuments.
(m) The Borrower has dealt with no broker or finder in connection
with the Loan, and the Borrower hereby agrees to jointly and severally indemnify
the Lender and to jointly and severally hold the Lender harmless of and from any
and all claims for broker's or finder's fees or commissions in connection with
the Loan, and agrees to pay all expenses (including but not limited to
attorney's fees and expenses) incurred by the Lender in connection with the
defense of any action or proceeding brought to collect any such fees and
commissions, or otherwise relating to any such broker's claims resulting from or
arising out of any claim that the Borrower consulted, dealt or negotiated with
the person or entity making such brokerage claim.
(n) Each Plan, pension, profit sharing or other employee benefit
plan, maintained by each Borrower is in material compliance with ERISA, the
Code, and all applicable rules and regulations adopted by regulatory authorities
pursuant thereto. The Borrower has filed all material reports required to be
filed by ERISA, the Code and such rules and regulations. In addition, any
qualified Plans subject to the minimum funding standards, do not, as of the date
hereof, have a funding deficiency, as defined by ERISA. No Reportable Event
material in relation to the business operations, property, financial or other
conditions of the Borrower has occurred with respect to any Plan. No tax penalty
nor other liability in the aggregate material in relation to business
operations, property, or financial conditions of the Borrower has been assessed
acainst the Borrower with respect to a Plan.
(o) Each Borrower has filed or caused to be filed all tax returns,
which to the knowledge of the Borrower, are required to be filed, and has fully
paid all taxes shown to be due and payable on said returns or any assessments
made against it or its property, and all other taxes, fees, or other charges
imposed on it or any of its property by any Governmental Authority. No tax liens
have been filed and, to the knowledge of Borrower, no claims are
13
being made or may hereafter be asserted with respect to any such taxes, fees or
other charges except for: (i) those, the amount or validity of which is
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with Generally Accepted Accounting
Principles have been provided on the books of Borrower, as the case may be; and
(ii) such failures to file or pay such tax liens or claims as could not, in the
aggregate, reasonably be expected to have a material adverse effect on the
business operations, property or financial or other condition of the Borrower,
and can not reasonably be expected to have an adverse effect on the ability of
the Borrower to perform any of its respective obligations in any material
respect under this Agreement, the other Loan Documents, or under any other
contractual obligation.
(p) All copies of all documents, reports, and statements heretofore
furnished by or on behalf of Borrower, or in connection with this Agreement to
the Lender, are, and those delivered subsequent to the date hereof, will be,
true and correct copies of the originals of such documents, reports and
statements. All matters stated or certified in any written statement,
certificate, report or other writing heretofore furnished pursuant to this
Agreement by or on behalf of the Borrower to the Lender are, and all matters
stated or certified subsequent to the date hereof, will be, true and correct as
of the date stated or certified. All such documents, reports, statements,
writings and certifications shall be in form and detail satisfactory to the
Lender.
(q) Each Borrower owns or leases all of its properties and assets
reflected on the balance sheets referred to in Section 7.1(j) hereof.
(r) All of the properties and assets set forth in Section 7.1 (q)
are free and clear of all mortgages, pledges, liens, charges and other
encumbrances of any nature whatsoever, excepting for the Permitted Encumbrances
(as defined and set forth in the Security Agreements).
(s) No Borrower is in default (subject to any applicable cure
periods) in the performance, observance of fulfillment of any of the
obligations, covenants or conditions contained in any lease for real or personal
property, which would have a material adverse affect on its business and all
such leases are valid and existing and in full force and effect.
(t) No Borrower is an "investment company" within the meaning of
the Investment Company Act of 1940 and any amendments thereto.
(u) None of the employees of any Borrower or any of its
subsidiaries are subject to any collective bargaining agreement and there are no
strikes, work stoppages, election or decertification petitions or proceedings,
unfair labor charges, equal opportunity proceedings, or other material
labor/employee related controversies or proceedings pending, or, to the best
knowledge of the Borrower, threatening any Borrower or any of its subsidiaries,
or between any Borrower (or any of its subsidiaries) and any of its employees,
other than employee grievances arising in the ordinary course of business which
could not reasonably be expected, individually or in the aggregate, to have a
materially adverse effect on the Borrower.
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Article 8
COVENANTS OF BORROWER
8.1 Each Borrower shall do, or cause to be done, all of the things
necessary to preserve, renew and keep in full force and effect its corporate
existence and its rights, licenses and permits shall comply with all laws
applicable to it, operate its business in a proper and efficient manner, and
substantially as presently operated or proposed to be operated, and at all times
shall maintain, preserve and protect all franchises and trade names and preserve
all property used or useful in the conduct of its business, and keep the same in
good repair, working order and condition, and from time to time make or cause to
be made any needed and proper repairs, renewals, replacements, betterments and
improvements thereto so that the business carried on in connection therewith may
be properly and advantageously conducted at all times.
8.2 Each Borrower shall at all times maintain true and correct books
and records and shall keep its books and records in accordance with Generally
Accepted Accounting Principles, and shall furnish the Lender with such financial
statements as may be required by Lender on a yearly and interim basis as set
forth in this paragraph and other parts of this Agreement.
8.3 Each Borrower shall properly pay and discharge: (a) all taxes,
assessments and governmental charges upon or against such Borrower or its assets
prior to the date on which penalties are attached thereto, unless, and to the
extent, such taxes are being diligently contested in good faith by appropriate
proceedings and appropriate reserves therefor have been established; and (b) all
lawful claims for labor, materials, supplies, services or anything else which
might or could, if unpaid, become a lien or charge upon the properties or assets
of such Borrower, unless and to the extent only that the same are transferred to
bond, being diligently contested in good faith, and by appropriate proceedings
and appropriate reserves therefor have been established.
8.4 The Borrower shall maintain the Cash Collateral Account, into which
all payments and other proceeds of Receivables will be deposited by Borrower. it
is acknowledged that on or before July 1, 1998, Borrower and Lender shall enter
into a Security, Cash Collateral and Lockbox Agreement whereby and "hereunder
Borrower shall direct all account debtors to remit all payments to a lockbox to
be maintained with and administered by Lender, with such collections to be
deposited into the Cash Collateral Account, to be applied against the Loan
facility balance.
8.5 The Borrower shall allow Lender to conduct audits of the Borrower's
books and records (and to make copies and extracts therefrom), including an
audit confirmation of accounts receivable balances and ownership interest in the
inventory, assets and business properties of Borrower. The above set forth
audits, examinations and inspections shall be conducted not less than four (4)
times in each fiscal year of Borrower. Said audits shall be performed at the
sole cost and expense of Borrower. The current per diem for said audits is Four
Hundred Twenty and 00/100 Dollars ($420.00) per day, plus expenses, subject to
change at any time. The foregoing ofthe audits may be adjusted by Lender at any
time in Lender's sole discretion.
15
8.6 Xxxxxxxxx Mobile shall maintain a minimum net worth of not less
than Four Million Two Hundred Fifty Thousand and 00/100 Dollars ($4,250,000.00)
from the date of this Agreement until October 31, 1998, such requirement to be
tested at the end of each quarter of each fiscal year of Xxxxxxxxx Mobile. The
minimum net worth requirement shall be increased at the end of each quarter in
each fiscal year of Xxxxxxxxx Mobile thereafter in an amount to be determined by
Lender based upon Xxxxxxxxx Mobile's annual projections for the period in
question.
8.7 Xxxxxxxxx Mobile shall maintain a debt to worth ratio of not more
than 1.75 to 1 through October 31, 1998, such ratio to be tested at the end of
each quarter of each fiscal year of Xxxxxxxxx Mobile. The debt to worth ratio
shall be adjusted at the end of each quarter in each fiscal year of Xxxxxxxxx
Mobile thereafter based upon Xxxxxxxxx Mobile's annual projections for the
period in question.
NOTE: In connection with the above, all accounting terms used shall be
construed in accordance with GAAP.
8.8 Each Borrower shall, at its expense, comply with all of the
insurance requirements set forth in this Agreement and the Security Agreements
throughout the term of the Loan.
8.9 The Borrower shall jointly and severally indemnify and save
harmless Lender from any and all loss or damage of whatsoever kind and from any
suits, claims, or demands, including, without limitation, Lender's reasonable
legal fees and expenses, at all trial and appellate levels, on account of any
matter or thing arising out of this Agreement or in connection herewith, or on
account of any act or omission to act by Borrower in connection with this
Agreement and the Loan. The Borrower further agrees to pay any and all taxes
(other than taxes on or measured by net income of Lender) incurred or payable in
connection with the execution and delivery of this Agreement, the Loan and all
other loans from Lender to Borrower. Such obligation shall survive repayment of
the loan.
8.10 Lender shall have the right, from time to time hereafter and until
the maturity of the Loan, to publicize and advertise in any manner Lender's
participation as lender in connection with the l.oan.
8.1 1 The Borrower shall: (a) make full and timely payments of the
principal and interest due and owing under the Note and the Indebtedness of the
Borrower to the Lender, whether now existing or hereafter arising; (b) duly
comply with all of the terms and covenants contained in each of the Loan
Documents; and (c) at all times maintain the liens and security interests
provided for under or pursuant to this Agreement and all other applicable Loan
Documents as valid and perfected liens and security interests on the property
intended to be covered thereby.
16
8.12 The Borrower shall promptly notify the Lender upon the
commencement of any material action, suit or claim or counter-claim or
proceeding against or investigation of any Rnrrnwer
8.13 The Borrower shall pay all indebtedness and obligations promptly
and in accordance with its respective terms and pay and discharge promptly all
taxes, assessments, and governmental charges or levies imposed upon it or in
respect of its property, before the same shall become in default, as well as all
lawful claims for labor, materials, and supplies or otherwise which, if unpaid,
might become a lien or charge upon such property or any part thereof, and timely
comply with all applicable laws and governmental rules and regulations.
8.14 The Borrower shall promptly notify the Lender in writing of: (a)
any material assessments by any taxing authorities for unpaid taxes as soon as
Borrower has knowledge thereof; and (b) any alleged default by any Borrower in
the performance of or any modification of any of the terms and conditions
contained in any agreement, mortgage or indenture or instrument to which any
Borrower is a party, or which is binding upon any Borrower, and upon any default
by any Borrower in the payment of any of its indebtedness.
8.15 The Borrower shall provide to Lender annual reviewed consolidated
financial statements of the Borrower, in form and substance acceptable to
Lender, prepared in accordance with GAAP, by certified public accountant(s)
acceptable to Lender, within one hundred twenty ( 120) days following the end of
each fiscal year of Borrower. Additionally, the Borrower shall provide to Lender
quarterly internally prepared consolidated financial statements of the Borrower,
represented by the Chief Financial Officer of the Borrower that said financial
statements are fairly prepared and consistent with prior statements provided to
the Lender or certified by their respective accountants as being true and
correct in all respects, and otherwise in form and substance acceptable to
Lender, within forty-five (45) days following the end of each quarterly period
in each fiscal year of Borrower, together with annual tax returns (with all
attached schedules) of each Borrower within fifteen (15) days of timely filing
of the same.
8.16 The Borrower shall provide to the Lender an aged analysis of all
outstanding accounts receivable of Borrower, in form and substance acceptable to
the Lender, within fifteen (15) days following the end of each monthly period in
each fiscal year of the Borrower. Lender reserves the richt to increase the
frequency of said aRing reports based upon the findings set forth in the audits.
8.17 The Borrower shall provide to the Lender an aged analysis of all
outstanding accounts payable of Borrower, in form and substance acceptable to
Lender, within fifteen (15) days following the end of each monthly period in
each fiscal year of the Borrower. Lender reserves the right to increase the
frequency of said aging reports based upon the findings set forth in the audits.
8.18 The Borrower shall provide to the Lender all information necessary
for the Lender to verify the credit standing of each Borrower during the term of
the Loan. Borrower shall additionally provide to Lender sales reports in form
and content acceptable to Lender (which reports shall include, without
limitation, copies of purchase orders), at such times as Lender shall require,
in Lender's sole discretion.
17
8.19 The Borrower shall allow the Lender, or Lender's designated agent,
to enter upon the Borrower's premises and inspect the Borrower's property at all
reasonable times, which inspections shall be at Borrower's sole cost and
expense.
8.20 Any existing and future loans to Borrower from any shareholders,
of ficers or directors of each Borrower shall be subordinated to the lien and
effect of the Loan. Provided that no Event of Default has occurred under the
Loan, each Borrower shall be entitled to make scheduled payments (but not
prepayments) of interest (but not principal) under such subordinated debt.
8.21 No Borrower shall sell or convey any of its assets, except in the
normal and ordinary course of business, including any merger, consolidation or
reorganization, unless consented to in writing by lender. BORROWER SHALL NOT
CONVEY OR TRANSFER ANY CASH, ASSETS OR PROPERTY TO ANY AFFILIATE, SUBSIDIARY,
RELATED ENTITY OF THE BORROWER OR ANY ENTITY IN WHICH XXXXXXX X. STRETCHER HAS
ANY OWNERSHIP INTEREST, AT ANY TIME DURING THE TERM OF THE LOAN, EXCEPTING
HOWEVER, THAT BORROWER SHALL BE PERMITTED TO TRANSFER ASSETS AMONG THEMSELVES.
Additionally, there shall be no material change in the ownership or management
of any Borrower without the prior written consent of Lender. For purposes
hereof, (a) a material change in ownership shall occur when a change in
ownership occurs and Xxxxxxx X. Xxxxxxxxx no longer (directly or indirectly)
owns greater than fifty-one percent (51%) of the equity and voting stock of each
Borrower, and (b) a material change in management shall occur when Xxxxxxx X.
Xxxxxxxxx ceases to hold the of fices of President or Chief Executive Officer,
or is otherwise no longer actively engaged in the management, of Xxxxxxxxx
Mobile. Notwithstanding anything to the contrary set forth above, sales from
Xxxxxxxxx Mobile to affiliated entities shall be permitted provided that such
sales constitute arms length transactions with normal prices, terms and
conditions made in the normal and ordinary course of business.
8.22 There shall be no loans or other advances from Borrower to
affiliates or related entities of any Borrower during the term of the Loan.
8.23 Each Borrower shall maintain all of its business, company and
depository accounts with Lender during the term of the Loan. Notwithstanding the
foregoing, Borrower shall be entitled to maintain depository accounts with
financial institutions other than Lender in connection with Borrower's
operations in locations outside of the State of Florida. Additionally, Lender
acknowledges that Borrower currently maintains an investment account with Xxxxx
Xxxxxx which shall be permitted.
8.24 The Borrower shall establish no additional employee benefit plans
of any nature without the prior written consent of the Lender, which consent
shall not be unreasonably withheld. Each pension, profit sharing, or other
employee benefit plan, at any time, maintained by each Borrower, shall be in
material compliance with ERISA, the Code, and all applicable rules and
regulations adopted by regulatory authorities, pursuant thereto. The Borrower
will
18
cause to be filed all material reports required to be filed by erisa, the code,
and such rules and regulations.
8.25 The Borrower within ten ( 10) days after written request from the
Lender, will furnish a written statement in form satisfactory to the Lender,
duly acknowledged: (i) setting forth the unpaid principal balance of, and the
interest and other sums due on, the Indebtedness evidenced by the Note and/or
secured by any of the other Loan Documents; (ii) stating whether or not any
offsets or defenses exist against the payments due under the Note or any of the
other Loan Documents; (iii) stating the current maturity date of the Note; and
(iv) setting forth such other information as the Lender may request from time to
time.
8.26 The Borrower shall notify the Lender immediately of any change in
the name of any Borrower, the principal place of business of any Borrower, the
of fice where the books and records of any Borrower are kept or any change in
the registered agent of any Borrower for the purpose of service of process.
8.27 Borrower shall not incur any additional debt (other than
indebtedness incurred in connection with the financing of trucks, including all
equipment located on and attached to the trucks) without Lender's prior written
consent, which consent shall be in Lender's sole discretion.
8.28 Borrower shall provide to Lender a Borrowing Base Certificate in
form and content acceptable to Lender on a monthly basis within fifteen (15)
days of the end of each monthly period in each fiscal year of Borrower and at
such other times as shall be requested by Lender, in Lender's sole discretinn
8.29 The Borrower shall give Lender prompt written notice of any Event
of Default hereunder, or any event of default with respect any Borrower's
obligations under any of the other Loan Documents, indicating the nature and
status thereof and the action which it proposes to take with respect thereto.
8.30 No Borrower shall directly or indirectly engage in any business
activity which would represent a material change from the kind of business
activity currently engaged in by it, which in the aggregate would have a
substantial and material effect on the Borrower's business, without the prior
written consent of Lender, which consent shall be in Lender's sole discretion.
8.31 Borrower shall provide to Lender on a semi-annual basis, a
complete and updated listing of all of its customers and account debtors, which
listing shall include all of the customers' and account debtors' addresses and
phone numbers. In connection with the same, Lender shall use its best efforts to
insure that said lists are not released outside of the Bank, provided however,
that Lender shall incur no liability whatsoever in the event the same occurs.
19
8.32 There shall be no subordinate financing ofthe collateral
encumbered by the Security Agreements and Financing Statements.
8.33 The Borrower shall use the funds borrowed by the borrower under
this agreement solely for general working capital requirements of the borrower.
Article 9
EVENTS OF DEFAULT
Each of the following is an Event of Default:
(a) If Borrower fails to pay any installment of interest or
principal under the Note within ten (10) days after the date the same shall
become due;
(b) If there occurs any default under any other term of this
Agreement, the Note, any of the Security Agreements or any of the other Loan
Documents relating hereto or thereto subject to any applicable cure period(s)
set forth therein;
(c) If any representation or warranty of Borrower hereunder shall
prove to be incorrect in any material respect;
(d) The dissolution, termination of existence, merger,
consolidation or reorganization of any Borrower;
(e) The commencement of levy, execution or attachment proceedings
in excess of Fifty Thousand and 00/100 Dollars ($50,000.00) against any Borrower
or, or the application for or appointment of a liquidator, receiver, custodian,
sequester, conservator, trustee, or other similarjudicial of ficer (and such
appointment continues for a period ofthirty (30) days in the case of an
involuntary proceeding), or the insolvency, in the bankruptcy or equity sense,
of any Borrower;
(f) The assignment for the benefit of creditors, or the admission
in writing of any inability to pay any debts generally as they become due, or
ordering the winding up or liquidation of its affairs, by any Borrower, or the
commencement of a case by or against any Borrower under any insolvency,
bankruptcy, creditor adjustment, debtor rehabilitation or similar law. state or
federal:
(g) The determination by any Borrower to request relief under any
insolvency, bankruptcy, creditor adjustment, debtor rehabilitation or similar
proceeding, state or federal, including without limitation the consent by any of
them to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator or similar official for it or for any
of its respective property or assets;
20
(h) There shall have occurred any substantial adverse change in
the financial condition of any Borrower;
(i) If the Borrower shall have failed to comply with any other
agreement, covenant, condition, provision or term contained in this Agreement
and Borrower fails to cure said default within thirtY (30) days of the date of
the occurrence of said default;
(j) There shall be entered against any Borrower one (l) or more
judgments or decrees in excess of $50,000.00, or which are not satisfied or
transferred to bond within thirty (30) days of entry.
(k) There shall occur an Event of Default by any Borrower in the
performance of its obligations under the Indebtedness or under any other loan
agreement with the Lender and/or the occurrence of any monetary event of default
under any loan agreement and/or financina arrancement with any other lender; or
(l) If at any time Lender deems itself insecure for any reason
whatsoever (notwithstanding any grace period in any Loan Documents), or if any
change or event shall occur which in Lender's exclusive judgment impairs any
security for the Loan, increases Lender's risk in connection with the Loan, or
indicates that any Borrower may be unable to perform its respective obligations
under any Loan Document.
Article l0
SET-OFFS
In addition to any other rights the Lender may have at law or in
equity, if any Borrower becomes insolvent howsoever evidenced, or any Event of
Default occurs and is continuing, or if Lender deems itself insecure, any
indebtedness from the Lender to each Borrower, and any other property of each
Borrower held by the Lender, may be set-off and applied towards the payment of
the Indebtedness of the Borrower under this Agreement (including, but not
limited to all indebtedness evidenced by the Note) to the Lender, including,
without limitation, any note payable to the Lender, whether or not such
Indebtedness of the Borrower to the Lender on such note or any part thereof
shall then be due.
Article ll
LENDER'S REMEDIES IN EVENT OF DEFAULT
l1.l Upon any Event of Default, subject only to any cure period(s)
expressly provided in the Note or the Security Agreements, the Lender shall be
entitled to all of its rights or remedies hereunder, at law or in equity and
under the Note, the Security Agreements and any other Loan Document, including,
without limitation, the right to declare the outstanding principal balance ofthe
Note, the accrued interest thereon, and all other obligations ofthe Borrower to
the Lender under this Agreement or otherwise to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived, anything in this Agreement or in the Note to the
contrary notwithstanding,
21
and the Lender's obligation to make any additional Advances hereunder shall be
permanently terminated.
11.2 All of the remedies herein given to Lender or otherwise available
to it shall be cumulative and may be exercised concurrently. Failure to exercise
any of the remedies herein provided shall not constitute a waiver thereof by
Lender, nor shall use of any such remedies prevent the subsequent or concurrent
resort to any other remedy or remedies which shall be vested in Lender by this
Agreement or at law or in equity. To be effective, any waiver by Lender must be
in writing and such waiver shall be limited in its effect to the condition or
default specified therein; but no such waiver shall extend to any subsequent
condition or default or impair any right consequent thereon.
Article 12
TAX INDEMNIFICATION
Borrower hereby agrees to and does hereby jointly and severally
indemnify and hold harmless Lender of and from any and all liability in
connection with payment of any and all intangible, documentary stamp, transfer,
recording and other taxes due and owing to the State of Florida, the State of
Alabama, the State of California, the State of Louisiana, the State of
Tennessee, the State of Georgia, and all other applicable jurisdictions in
connection with the execution, delivery and/or enforcement of this Agreement,
the Revolving Note, the Security Agreements, and all associated Loan Documents,
together with all penalties and interest associated therewith, if any.
Accordingly, Borrower does hereby authorize Lender to reimburse itself for any
such taxes that Lender pays upon behalf of Borrower from the proceeds under the
Revolving Note, in the event Lender, at any time, in its sole discretion, deems
it necessary to pay such taxes, together with any penalties and interest
associated therewith. This indemnification and Borrowers' liability for payment
of all of the above set forth taxes shall survive repayment and/or satisfaction
of the Loan.
Article 13
MISCELLANEOUS
13.1 Any condition of this Agreement which requires the submission of
evidence of the existence or non-existence of a specified fact or facts implies
as a condition the existence or nonexistence, as the case may be, of such fact
or facts, and Lender shall, at all times, be free independently to establish to
its satisfaction and in its absolute discretion such existence or non-existence.
13.2 No part of the Loan will be, at any time, subject or liable to
attachment or levy at the suit of any creditor of Borrower or of any other
interested party, or at the suit of any contractor, subcontractor.
sub-subcontractors or materialman, or any of their creditors.
13.3 If performance of any provision hereof or any transaction related
hereto is limited by law, then the obligation to be performed shall be reduced
accordingly, and if any clause or provision
22
herein contained operates or would operate to invalidate this Agreement in part,
then the invalid part of said clause or provisions only shall be held for naught
as though not contained herein, and the remainder of this Agreement shall remain
operative and in full force and effect.
13.4 If Lender shall waive any provisions of the Loan Documents, or
shall fail to enforce any of the conditions or provisions of this Agreement,
such waiver shall not be deemed to be a continuing waiver, and shall never be
construed as such, and Lender shall thereafter have the right to insist upon the
enforcement of such conditions or provisions. Furthermore, no provision of this
Agreement shall be amended, waived, modified, discharged or terminated except by
instrument in writing, signed by the parties hereto.
13.5 This Agreement and the documents expressly referred to herein
embody the entire agreement and understanding between the parties hereto with
respect to the subj ect matter hereof and supersedes all prior agreements and
understandings relating to the subject matter. This Agreement may be changed,
waived, discharged, or terminated only by an instrument in writing duly executed
by the party against which enforcement of such change, waiver, discharge, or
termination is sought.
13.6 Anything in this Agreement to the contrary notwithstanding, the
Lender shall not be obligated to extend credit to the Borrower in violation of
any limitation or prohibition provided by any applicable statute or regulation.
13.7 All notices given hereunder shall be in writing and addressed as
follows:
(a) Lender: BANKATLANTIC
0000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx,
Executive Vice President
with copy to: XXXX X. XXXXXX, ESQ.
Mombach, Xxxxx & Xxxxxx, P.A.
000 Xxxx Xxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(b) Borrowers: STRETCHER MOBILE FUELING, INC.
STRETCHER REALTY, INC.
STRETCHER WEST, INC.
0000 X.X. 00xx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, President
with copy to: E. XXXXX XXXXXX, ESQUIRE
000 X.X. 0xx Xxxxxx
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
23
13.8 This Agreement, the Loan Documents and all other documents
relating hereto or thereto may be reproduced by the Lender, and the Borrower
agrees and stipulates that any such reproduction shall be admissible in evidence
as the original itselfin anyjurisdiction or administrative proceeding (whether
or not the original is in existence and whether or not such reproduction was
made by the Lender in the regular course of business) and that any enlargement,
facsimile, or further reproduction of said document shall likewise be admissible
in evidence.
13.9 In no event shall the Lender's rights hereunder or under any of
the Loan Documents grant the Lender the right to or be deemed to indicate that
the Lender is in control of the business, management or properties of the
Borrower, or has power over the daily management functions and operating
decisions made by the Borrower. The Lender is the Lender only and shall not be
considered a shareholder, joint venturer or partner of the Borrower.
13.10 The headings preceding the text ofthe sections ofthis Agreement
are used solely for convenience of reference and shall not affect the meaning,
construction, or effect ofthis Agreement.
13.1 1 Lender shall have the right at any time to convey or assign the
Loan or any portion thereof, and, additionally, shall have the right to sell a
participation in the Loan to another lending institution at any time that the
Loan is outstanding, in any amount as solely determined by Lender. Lender is
hereby authorized to release all financial information of the Borrower to said
assignee or DarticiDatina lender(s).
13.12 Borrower shall not assign this Agreement without the prior
written consent of Lender, and any assignment in violation hereof shall be of no
force and effect and shall constitute an Event of Default herein. Subject to the
previous sentence, this Agreement shall extend to and bind the parties hereto,
and their respective successors and assigns.
13.13 Except as otherwise noted herein, all covenants, agreements,
representations and warranties made herein and in the Loan Documents shall
survive the respective dates of effectiveness thereof and shall continue in full
force and effect so long as the Loan Documents, or any of them, remain in effect
or any of the obligations evidenced thereby are outstanding and unpaid.
13.14 In the event of any conflict, inconsistency or ambiguity between
the provisions of this Agreement and the provisions of the Revolving Note, any
of the Security Agreements, the Security and Cash Collateral Account Agreement,
or any other Loan Documents, the provisions of this Apreement shall control and
prevail.
13.15 This Agreement may be executed in one or more counterparts, each
of which shall constitute an original, but all of which, when taken together,
shall constitute but one instrument. Any term used herein shall be equally
applicable to both the singular and plural forms.
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13.16 Borrower will pay all reasonable out-of-pocket expenses incurred
by Lender in connection with the preparation of the Loan Documents (whether or
not the transactions contemplated hereby shall be consummated), the making and
assumption ofthe Loan, as applicable, the enforcement and protection in any
legal or equitable proceeding of the rights of the Lender in connection with the
Loan Documents, and in connection with any action or claim under the Loan
Documents including the Revolving Note, or in any way related thereto,
including, without limitation, the reasonable fees and disbursements of counsel
of the Lender.
13.17 It is the intention of the parties hereto to comply with the
usury laws of applicable governmental authority(ies); accordingly, it is agreed
that, notwithstanding any provision to the contrary in the Revolving Note, this
Loan Agreement or any of the other documents securing payment thereof or
otherwise relating hereto, no such provision shall require the payment or permit
the collection of interest in excess ofthe maximum permitted by law. In
determining the maximum rate allowed, Lender may take advantage of any state or
federal law, rule or regulation in effect from time to time which may govern the
maximum rate of interest which may be charged. If any excess of interest in such
respect is provided for, or shall be adjudicated to be so provided for, in the
Revolving Note, the Loan Agreement or in any of the other documents securing
payment thereof or otherwise relating hereto, then in such event: (a) the
provisions of this paragraph shall govern and control; (b) neither Borrower nor
its heirs, personal representatives, successors or assigns or any other party
liable for the payment thereof, shall be obligated to pay the amount of such
interest to the extent that it is in excess of the maximum amount permitted by
law; (c) any such excess which may have been collected shall be either applied
as a credit against the then unpaid principal amount of the Revolving Note or
refunded to Borrower; and (d) the effective rate of interest shall be
automatically reduced to the maximum lawful contract rate allowed under the
applicable usury laws.
13.18 Borrower hereby waives any right to require a proceeding first
against any other Borrower or other party providing collateral, or to exhaust
any security for the performance of the Indebtedness. The Borrower further
covenants that no security now or subsequently held by the Lender for the
payment of the Indebtedness evidenced by the Revolving Note made by Borrower
under the Agreement, or for the payment of any other Indebtedness of Borrower to
the Lender under this Agreement or the other Loan Documents, whether in the
nature of a security interest, pledge, lien, assignment, setoff, suretyship,
guaranty, indemnity, insurance or otherwise, and no act, omission or other
conduct of the Lender in respect of such security (excluding fraud, gross
negligence or willful misconduct), shall affect in any manner whatsoever the
unconditional obligation of the Borrower under this Agreement and the Revolving
Note, and the Lender may release, exchange, enforce, apply the proceeds of and
otherwise deal with any such security without affecting in any manner the
unconditional obligation of each of the Borrower under this Agreement and the
Note.
Without limiting the generality of the foregoing, such obligations, and
the rights of the Lender to enforce the same, by proceedings, whether by action
at law, suit in equity or otherwise, shall not be in any way affected by (i) any
insolvency, bankruptcy, liquidation, reorganization, readjustment. composition,
dissolution, winding up or other proceeding
25
involving or affecting the Borrower or others, or (ii) any change in the
ownership of any of the capital stock of the Borrower or any other party
providing collateral for any of the Indebtedness, or any of their respective
affiliates.
Each Borrower hereby waives to the fullest extent possible under
applicable law:
i. any defense based upon the doctrine of marshalling of assets
or upon an election of remedies by the Lender, including,
without limitation, an election to proceed by nonjudicial
rather than judicial foreclosure;
ii. any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither
larger in amount nor in other respects more burdensome than
that of the principal;
iii. any other event or action (excluding the Borrower's compliance
with the provisions hereof) that would result in the discharge
by operation of law or otherwise of the Borrower from the
performance or observance of any obligation, covenant or
agreement contained in this Agreement, the Revolving Note, or
any other Loan Documents.
13.19 The Borrower shall jointly and severally indemnify and hold
harmless the Lender, and its directors, off~cers, employees and agents against
all losses, claims, damages, penalties, judgments, liabilities and expenses
(including, without limitation, all expenses of litigation or preparation
therefor whether or not the Lender is a party thereto) which it may pay or incur
arising out of or relating to, directly or indirectly, this Agreement, the
Revolving Note, the other Loan Documents, the transactions contemplated hereby
or the direct or indirect application or proposed application of the proceeds of
any Loan hereunder, excepting for gross negligence or willful misconduct on the
part of Lender.
13.20 This Agreement shall be governed by and construed in accordance
with the internal statutes and laws of the State of Florida (other than with
respect to conflicts of laws), but giving effect to federal laws applicable to
national banks to the extent applicable, and except to the extent that the
validity or perfection of the security interest created hereby, or remedies
hereunder, in respect of any particular Collateral are governed by the laws of a
jurisdiction other than the State of Florida
WAIVER OF JURY TRIAL. LENDER AND BORROWER HEREBY MUTUALLY, KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT TO ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT AND ANY AGREEMENT CONTEMPLATED OR TO BE EXECUTED
IN CONJUNCTION HEREWITH, UNDER ANY OF THE LOAN DOCUMENTS, OR ANY COURSE OF ,
COURSE OF DEALING STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER
PARTY. THE BORROWER ACKNOWLEDGES
26
THAT THIS CONDUCT WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO THE LENDER IN
ACCEPTING THIS AGREEMENT, AND, THAT THE LENDER WOULD NOT HAVE ACCEPTED THIS
AGREEMENT WITHOUT THIS JURY TRIAL WAIVER, AND, THAT THE UNDERSIGNED HAS BEEN
REPRESENTED BY AN ATTORNEY OR HAS HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY
REGARDING THIS JURY TRIAL WAIVER, AND, UNDERSTANDS THE LEGAL EFFECT OF THIS JURY
TRIAL WAIVER.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
Signed, sealed and delivered in BORROWER:
the presence of:
XXXXXXXXX MOBILE FUELING, INC.,
a Florida corporation
_________________________ By: ______________________________
XXXXXX X. XXXXXXX
Vice President, Finance
_________________________
(Corporate Seal)
XXXXXXXXX REALTY, INC., a Florida
corporation
____________________________ By:: ______________________________
XXXXXX X. XXXXXXX
Vice President, Finance
____________________________
(Corporate Seal)
XXXXXXXXX WEST, INC., a California
corporation
____________________________ By:: ______________________________
XXXXXX X. XXXXXXX
Vice President, Finance
____________________________
(Corporate Seal)
27
LENDER:
BANKATLANTIC, a Federal Savings
Bank
____________________________ By: __________________________
____________________________ Title: ________________________
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