1
Exhibit 4.46
BUSINESS LOAN AGREEMENT
Borrower: Pods, Inc.
0000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Lender: First National Bank of Florida
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Guarantors: Xxxxxxxxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxxx
00 Xxxxxx Xxxxxx
Xxx Xxxx Xxxx, X.X. 00000
THIS BUSINESS LOAN AGREEMENT between Pods, Inc. ("Borrower"), Xxxxxxxxxxx X.
Xxxxxxxxx and Xxxxx Xxxxxxxxx ("Guarantors") and First National Bank of Florida
("Lender") is made and executed on the following terms and conditions. Borrower
has applied to Lender for a commercial loan and other financial accommodations.
Such loan and financial accommodations are referred to in this Agreement as the
"Loan". Borrower and Guarantors understand and agree that: (A) in granting,
renewing, or extending this Loan, Lender is relying upon, Borrower's and
Guarantors' representations, warranties, and agreements, as set forth in this
Agreement; (b) the granting, renewing, or extending of this Loan by Lender at
all times shall be subject to Lender's sole judgment and discretion; and (c)
such Loan shall be and shall remain subject to the following terms and
conditions of this Agreement.
TERM. This Agreement shall be effective as of October 18, 2000, and shall
continue thereafter until all Indebtedness of Borrower to Lender has been
performed in full. The term of the promissory note evidencing this Loan (the
"Note") shall be three years from date of execution. The term may be extended
by agreement of Borrower and Lender and such extension shall not require the
consent of Guarantors.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
AGREEMENT. The word "Agreement" means this Business Loan Agreement, as
this Business Loan Agreement may be amended or modified from time to
time, together with all exhibits and schedules attached to this
Business Loan Agreement from time to time.
BORROWER. The word "Borrower" means Pods, Inc.
COLLATERAL. The word "Collateral" means and includes without
limitation all property and assets granted as collateral security for
the Loans whether real or personal property, whether granted directly
or
2
indirectly, whether granted now or in the future, and whether granted
in the form of a security interest, mortgage, deed of trust,
assignment, pledge, chattel mortgage, chattel trust, factors lien,
equipment trust, conditional sale, trust receipt, lien, charge, lien
or title retention contract, lease or consignment intended as a
security device, or any other security or lien interest whatsoever,
whether created by law, contract, or otherwise. The Collateral shall
include those items of personal property identified and described on
Exhibit "A".
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section
titled "EVENTS OF DEFAULT."
GRANTOR. The word "Grantor" means and includes without limitation each
and all of the persons or entities granting a Security Interest in any
Collateral for the Indebtedness, including without limitation the
Borrower granting such a Security Interest. The Grantor giving the
security interest in the collateral identified on Exhibit "A" is the
Borrower.
GUARANTORS. The word "Guarantors" means and includes without
limitation each and all of the guarantors, sureties, and accommodation
parties in connection with any Indebtedness. Guarantors include
Xxxxxxxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxxxx.
INDEBTEDNESS. The word "Indebtedness" is used in its most
comprehensive sense and includes any and all of indebtedness owed by
Borrower to Lender represented by a certain Promissory Note executed
contemporaneously herewith in the original principal amount of
$500,000.00 and interest accrued thereon, costs of collection of the
indebtedness, costs and expenses of enforcement of any Guaranty and
Lender's attorney's fees incurred in connection with any of the above.
LENDER. The word "Lender" means First National Bank of Florida, its
successors and assigns.
LOAN. The word "Loan" or "Loans" means and includes without limitation
any and all commercial loans and financial accommodations from Lender
to Borrower, whether now or hereafter existing, and however evidenced,
including without limitation those loans and financial accommodations
described herein or described on any exhibit or schedule attached to
this Agreement from time to time.
NOTE. The word "Note" means and includes without limitation Borrower's
promissory note evidencing Borrower's Loan obligation in favor of
Lender, as well as any substitute, replacement or refinancing note or
notes therefor. Note includes the note executed by Borrower
contemporaneously herewith in the principal amount of $500,000.00 in
favor of Lender, together with all renewals of, extensions of,
modifications of, refinancings of, consolidations of, and
substitutions for the note or credit agreement. The form of the Note
is attached hereto as Exhibit "B".
RELATED DOCUMENTS. The words "Related Documents" mean and include
without limitation all promissory notes, credit agreements, business
loan agreements, guaranties, security agreements, mortgages, deeds of
trust, assignments and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the Indebtedness or presently outstanding from Borrower to
Lender.
Page 2
3
SECURITY AGREEMENT. The words "Security Agreement" mean and include
without limitation any agreements, promises, covenants, arrangements,
understandings or other agreements, whether created by law, contract,
or otherwise, evidencing, governing, representing, or creating a
Security Interest. The form of the Security Agreement is attached
hereto as Exhibit "C".
SECURITY INTEREST. The words "Security Interest" mean and include
without limitation any type of collateral security, whether in the
form of a lien, charge, mortgage, deed of trust, assignment pledge,
chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien or title retention contract,
lease or consignment intended as a security device, or any other
security or lien interest whatsoever, whether created by law,
contract, or otherwise.
CONDITIONS PRECEDENT TO FUNDING. Lender's obligation to fund under this
Agreement shall be subject to the fulfillment to Lender's satisfaction of all
of the conditions set forth in this Agreement and in the Related Documents.
LOAN DOCUMENTS. Borrower shall provide to Lender in form satisfactory
to Lender the following documents for the Loans: (a) the Note, (b) a
Security Agreement granting to Lender a security interest in the
Collateral, (c) Financing Statement(s) perfecting Lender's Security
Interest; (d) the Guaranties of Xxxxxxxxxxx X. Xxxxxxxxx and Xxxxx
Xxxxxxxxx in the forms attached as Exhibits "D" and "E", (e) the
Consent, Acknowledgment and Agreement of Guarantors of other loans of
Borrower to Lender and (f) any other Related Documents required under
this Agreement or by Lender or its counsel.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all
fees, transaction taxes, charges, and other expenses which are then,
due and payable as specified in this Agreement or any Related
Document.
REPRESENTATIONS AND WARRANTIES. The representations and warranties set
forth in this Agreement, in the Related Documents, and in any document
or certificate delivered to Lender under this Agreement are true and
correct.
NO EVENT OF DEFAULT. There shall not exist at the time of funding a
condition which would constitute an Event of Default under this
Agreement.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of any renewal, extension or
modification of any Loan, and at all times any Indebtedness exists:
ORGANIZATION. Borrower is a Florida corporation which is and will be
at all relevant times current and in good standing with the State of
Florida.
COLLATERAL. Borrower owns the collateral described on Exhibit "A" free
and clear of all liens, encumbrances and liabilities, except the
existing lien thereon of Lender, and has the lawful authority
Page 3
4
to grant a security interest thereon to Lender, superior to all
others.
AUTHORIZATION. The execution, delivery, and performance of this
Agreement and all Related Documents by Borrower, to the extent to be
executed, delivered or performed by Borrower, have been duly
authorized by all necessary action by Borrower, do not require the
consent or approval of any other person, regulatory authority or
governmental body; and do not conflict with, result in a violation of,
or constitute a default under (a) any provision of any agreement or
other instrument binding upon Borrower or (b) any law, governmental
regulation, court decree, or order applicable to Borrower.
FINANCIAL INFORMATION. Each financial statement of Borrower and
Guarantors supplied to Lender truly and completely disclosed
Borrower's and Guarantors' financial condition as of the date of the
statement, and there has been no material adverse change in Borrower's
and Guarantors' financial condition subsequent to the date of the most
recent financial statement supplied to Lender. Borrower and Guarantors
each have no material contingent obligations except as disclosed in
such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or
agreement required hereunder to be given by Borrower and Guarantors
when delivered will constitute, legal, valid and binding obligations
of Borrower and Guarantors, respectively, enforceable against Borrower
and Guarantors in accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Borrowers financial statement or in writing to Lender
and as accepted by Lender, and except for property tax liens for
taxes not presently due and payable, Borrower owns and has good title
to all of Borrower's properties free and clear of all Security
Interests, and has not executed any security documents or financing
statements relating to such properties. All of Borrower's properties
are titled in Borrower's legal name, and Borrower has not used, or
filed a financing statement under, any other name for at least the
last five (5) years.
LITIGATION AND CLAIMS. No litigation, claim, investigation,
administrative proceeding or similar action (including those for
unpaid taxes) against Borrower or Guarantors is pending or threatened;
and no other event has occurred which may materially adversely affect
Borrower's or Guarantors' financial condition or properties, other
than litigation, claims, or other events, if any, that have been
disclosed to and acknowledged by Lender in writing.
TAXES. To the best of Borrower's knowledge, all tax returns and
reports of Borrower that are or were required to be filed, have
been filed, and all taxes, assessments and other governmental charges
have been paid in full, except those presently being or to be
contested by Borrower in good faith in the ordinary course of business
and for which adequate reserves have been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in
writing, Borrower has not entered and will not enter into or grant any
Mortgages, Security Agreements, or permit the filing or attachment of
any Security Interests on or affecting any of the Collateral now or
hereafter, directly or indirectly, securing
Page 4
5
repayment of Borrower's Loans and Notes, that would be prior or that
may in any way be superior to Lender's Security Interest and rights in
and to such Collateral.
BINDING EFFECT. This Agreement, the Note, the Security Agreement
directly or indirectly securing repayment of Borrower's Loan and Note
and all of the Related Documents are binding upon Borrower as well as
upon Borrower's successors, and assigns, and are legally enforceable
in accordance with their respective terms. The Guaranties are binding
upon guarantors as well as Guarantors' successors and assigns, and are
legally enforceable in accordance with their respective terms.
EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which
Borrower may have any liability complies in all material respects with
all applicable requirements of law and regulations, and (i) no
Reportable Event nor Prohibited Transaction (as defined in ERISA) has
occurred with respect to any such plan, (ii) Borrower has not
withdrawn from any such plan or initiated steps to do so, (iii) no
steps have been taken to terminate any such plan, and (iv) there are
no unfunded liabilities other then those previously disclosed to
Lender in writing.
LOCATION OF BORROWER'S OFFICES AND RECORDS. Borrowers place of
business, or Borrower's Chief executive office, if Borrower has more
than one place of business, is located at 0000 00xx Xxxxxx Xxxxx Xx.
Xxxxxxxxxx, XX 00000. Unless Borrower has designated otherwise in
writing, this location is also the office or offices where Borrower
keeps its records concerning the Collateral.
INFORMATION. All information heretofore or contemporaneously herewith
furnished by Borrower to Lender for the purposes of or in connection
with this Agreement or any transaction contemplated hereby is, and all
information hereafter furnished by or on behalf of Borrower to Lender
will be, true and accurate in every material respect on the date as of
which such information is dated or certified; and none of such
information is or will be incomplete by omitting to state any material
fact necessary to make such information not misleading.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower understands and
agrees that Lender, without independent investigation, is relying upon
the above representations and warranties in making the above
referenced Loan to Borrower. Borrower further agrees that the
foregoing representations and warranties shall be continuing in nature
and shall remain in full force and effect until such time as Borrower's
Indebtedness shall be paid in full, or until this Agreement shall be
terminated in the manner provided above, whichever is the last to
occur.
AGREEMENTS, REPRESENTATIONS AND WARRANTIES OF GUARANTORS: Guarantors agree,
represent and warrant the following:
FINANCIAL INFORMATION. Each financial statement of Guarantors supplied
to Lender truly and completely disclosed Guarantors' financial
condition as of the date of the statement, and there has been no
material adverse change in Guarantors' financial condition subsequent
to the date of the most recent financial statement supplied to Lender.
Guarantors have no material contingent obligations except as disclosed
in such financial statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or
agreement required hereunder to be
Page 5
6
given by Guarantors when delivered will constitute, legal, valid and
binding obligations of Guarantors, enforceable against Guarantors in
accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously
disclosed in Guarantors' financial statement or in writing to Lender
and as accepted by Lender, and except for property tax liens for
taxes not presently due and payable, Guarantors own and have good
title to all of Guarantors' properties free and clear of all Security
Interest, and has not executed any security documents or financing
statements relating to such properties. All of Guarantors' properties
are titled in Guarantors' legal names, and Guarantors have not used,
or filed a financing statement under, any other name for at least the
last five (5) years.
LITIGATION AND CLAIMS. No litigation, claim, investigation,
administrative proceeding or similar action (including those for
unpaid taxes) against Guarantors is pending or threatened, and no
other event has occurred which may materially adversely affect
Guarantors' financial condition or properties, other than litigation,
claims, or other events, if any, that have been disclosed to and
acknowledged by Lender in writing.
TAXES. To the best of Guarantors' knowledge, all tax returns and
reports of Guarantors that are or were required to be filed, have been
filed, and all taxes, assessments and other governmental charges have
been paid in full, except those presently being or to be contested by
Guarantors in good faith in the ordinary course of business and for
which adequate reserves have been provided.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that,
while this Agreement is in effect, Borrower will:
LITIGATION. Promptly inform Lender in writing of (a) all material
adverse changes in Borrower's financial condition, and (b) all
existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Borrower or
any Guarantor which could materially affect the financial condition of
Borrower or the financial condition of any Guarantor.
FINANCIAL RECORDS. Maintain its books and records in accordance with
generally accepted accounting principles applied on a consistent basis,
and permit Lender to examine and audit Borrower's books and records at
all reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as available, but
in no event later than ninety (90) days after the end of each fiscal
year, Borrower's balance sheet and income statement for the year ended,
audited by a certified public accountant satisfactory to Lender. All
financial reports required to be provided under this Agreement shall
be prepared in accordance with generally accepted accounting
principles, applied on a consistent basis, and, except for audited
statements/reports, shall be certified by Borrower as being true,
accurate and correct. Additionally, Borrower shall furnish to Lender
within thirty (30) days from the close of each fiscal quarter internal
quarterly balance sheets and income statements certified by Borrower
to be true, accurate and complete and the same shall be in form
acceptable to Lender.
Page 6
7
TAX RETURNS. Furnish Lender within sixty (60) days of the respective
due dates (or extended due dates) certified copies of Borrower's
federal income tax returns, including all schedules applicable thereto
and certification of payment of all taxes due.
ADDITIONAL INFORMATION. Furnish such additional information and
statements, lists of assets and liabilities, agings of receivables
and payables, inventory schedules, budgets, forecasts, tax returns,
and other reports with respect to Borrower's financial condition and
business operations as Lender may reasonably request from time to
time.
OTHER AGREEMENTS. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between Borrower and
any other party and notify Lender immediately in writing of any
default in connection with any other such agreements.
USE OF LOAN PROCEEDS. Use all Loan proceeds solely for Borrower's
working capital in its current existing business, unless
specifically consented to the contrary by Lender in writing.
TAXES, CHARGES AND LIENS. Pay and discharge when due all of its
indebtedness and obligations, including without limitation all
assessments, taxes, governmental charges, levies and liens, of every
kind and nature, imposed upon Borrower or its properties, income, or
profits, prior to the date on which penalties would attach, and all
lawful claims that, if unpaid, might become a lien or charge upon any
of Borrower's properties, income, or profits. Provided however,
Borrower will not be required to pay and discharge any such
assessment, tax, charge, xxxx, xxxx or claim so long as (a) the
legality of the same shall be contested in good faith by appropriate
proceedings, and (b) Borrower shall have established on its books
adequate reserves with respect to such contested assessment, tax,
charge, levy, lien, or claim in accordance with generally accepted
accounting practices. Borrower, upon demand of Lender, will furnish to
Lender evidence of payment of the assessments, taxes, charges, levies,
liens and claims and will authorize the appropriate governmental
official to deliver to Lender at any time a written statement of any
assessments, taxes, charges, levies, liens and claims against
Borrower's properties, income, or profits.
PERFORMANCE. Perform and comply with all terms, conditions, and
provisions set forth in this Agreement and in the Related Documents in
a timely manner, and promptly notify Lender if Borrower learns of the
occurrence of any event which constitutes an Event of Default under
this Agreement or under any of the Related Documents.
OPERATIONS. Maintain executive and management personnel with
substantially the same qualifications and experience as the present
executive and management personnel; provide written notice to Lender
of any change in executive and management personnel; conduct its
business affairs in a reasonable and prudent manner and in compliance
with all applicable federal, state and municipal laws, ordinances,
rules and regulations respecting its properties, charters, businesses
and operations, including without limitation, compliance with the
Americans With Disabilities Act and with all minimum funding standards
and other requirements of ERISA and other laws applicable to
Borrower's employee benefit plans.
COLLATERAL SCHEDULES AND LOCATIONS. Grantor shall deliver to Lender,
as often as Lender shall require,
Page 7
8
such lists, descriptions, and designations of such Collateral as
Lender may require to identify the nature, extent, and location of
such Collateral.
MAINTENANCE, INSPECTION AND AUDIT OF COLLATERAL. Grantor shall
maintain all tangible Collateral in good condition and repair. Grantor
will not commit or permit damage to or destruction of the Collateral
or any part of the Collateral. Lender and its designated
representatives and agents shall have the right at all reasonable
times to examine, inspect, and audit the Collateral wherever located.
Grantor shall immediately notify Lender of all cases involving the
return, rejection, repossession, loss or damage of or to any
Collateral; of any request for credit or adjustment or of any other
dispute arising with respect to the Collateral; and generally of all
happenings and events affecting the Collateral or the value or the
amount of the Collateral. Regarding Collateral, it is anticipated that
Lender will be relying upon certificates received from Grantor and the
authenticity of all documents supplied to it. Grantor shall permit
employees or agents of Lender at any reasonable time to inspect any
and all Collateral for the Loan and to examine or audit Grantors
books, accounts, and records and to make copies and memoranda of
Grantors books, accounts, and records. If Grantor now or at any time
hereafter maintains any records (including without limitation computer
generated records and computer software programs for the generation of
such records) in the possession of a third party, Grantor, upon
request of Lender, shall notify such party to permit Lender free
access to such records at all reasonable times and to provide Lender
with copies of any records it may request, all at Borrower's expense.
The Collateral shall at all times be maintained within the State of
Florida and Grantor upon request shall supply to Lender the exact
location of each item of Collateral.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such
promissory notes, mortgages, deeds of trust, security agreements,
financing statements, instruments, assignments of mortgage,
assignments of promissory notes, estoppel certificates, other
documents and other agreements as Lender or its attorneys may
reasonably request to evidence and secure the Loans and to perfect all
Security Interests.
AFFIRMATIVE COVENANTS OF GUARANTORS. Guarantors covenant and agree with Lender
that, while this Agreement is in effect, Guarantors will:
LITIGATION. Promptly inform Lender in writing of (a) all material
adverse changes in Guarantors financial condition, and (b) all
existing and all threatened litigation, claims, investigations,
administrative proceedings or similar actions affecting Guarantors
which could materially affect the financial condition of Guarantors.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as available, but
in no event later than ninety (90) days after the end of each calendar
year, Guarantors' then current financial statement in form
satisfactory to Lender.
TAX RETURNS. Furnish Lender within sixty (60) days of the respective
due dates (or extended due dates) certified copies of Guarantors'
federal income tax return, including all schedules applicable thereto
and certification of payment of all taxes due.
Page 8
9
ONGOING AGREEMENT. As long as the Note or any portion thereof remains
unpaid, Guarantors will maintain a securities brokerage account(s)
containing unencumbered liquid and readily tradable marketable
securities or other assets which have a collective minimum present
market value at all times equal to or greater than the principal
balance outstanding on the Note. Copies of monthly statements of such
account(s) shall be timely mailed each month to Lender. The failure
of Guarantors to comply with this agreement shall constitute a default
under the Note and entitle Lender to all remedies for default.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if
(a) Borrower or any Guarantor is in default under the terms of this Agreement
or any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender, (b) Borrower or any Guarantor, becomes insolvent,
files a petition in bankruptcy or similar proceedings, or is adjudged a
bankrupt (c) there occurs a material adverse change in Borrower's financial
condition, in the financial condition of any Guarantor, or in the value of any
Collateral securing any Loan; (d) any Guarantor seeks, claims or otherwise
attempts to limit, modify or revoke such Guarantors guaranty of the Loan or any
other loan with Lender; or (e) the making of the loan advance would put Lender
in violation of its legal lending to one obligor.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security interest in
all Borrower's accounts with Lender (whether checking, savings or some other
account). This includes all accounts Borrower holds jointly with someone else
and all accounts Borrower may open in the future. However, this does not
include any XXX or Xxxxxx accounts, or any trust accounts for which the grant
of a security interest would be prohibited by law. Borrower authorizes Lender,
to the extent permitted by applicable law, to charge or setoff all sums owing
on the indebtedness against any and all such accounts.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Borrower to make any payment when
due on the Loan.
OTHER DEFAULTS. The default by Borrower under any other loan
obligation owed to Lender and/or the failure of Borrower or any
Borrower to comply with or to perform when due, any term, obligation,
covenant or condition contained in this Agreement or in any of the
Related Documents, or failure of Borrower to comply with or to perform
any other term, obligation, covenant or condition contained in any
other agreement between Lender and Borrower, whether now existing or
hereafter created.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Borrower
default under any loan, extension of credit, security agreement,
purchase or sales agreement, or any other agreement, in favor of any
other creditor or person that may materially affect any of Borrower's
property or Borrowers or any Grantor's ability to repay the Loans or
perform their respective obligations under this Agreement or any of
the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by or on
Page 9
10
behalf of Borrower or any Grantor under this Agreement or the
Related Documents is false or misleading in any material respect at
the time made or furnished, or becomes false or misleading at any time
thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of
any Security Agreement to create a valid and perfected Security
Interest) at any time and for any reason.
INSOLVENCY. The dissolution or termination of Borrower's existence as a
going business, the insolvency of Borrower, the appointment of a
receiver for any part of Borrower's property, any assignment for the
benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws
by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower, any
creditor of any Grantor against any collateral securing the
Indebtedness, or by any governmental agency. This includes a
garnishment, attachment, or levy on or of any of Borrower's deposit
accounts with Lender.
ADVERSE CHANGE. A material adverse change occurs in Borrower's
financial condition, or, Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
EVENTS AFFECTING GUARANTORS. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or any Guarantor
dies or becomes incompetent, or revokes or disputes the validity of,
or liability under, any Guaranty of the Indebtedness.
DEFAULT OF GUARANTORS. Failure of the named Guarantors, to fully
comply with each and every representation, warranty and provision of
the Guaranty agreements.
CHANGE IN OWNERSHIP. Any change in ownership of Borrower of 49% of the
common stock of Borrower or such other amount which could result in a
loss of voting control by the present management group.
INSECURITY. Lender in good xxxxx xxxxx itself insecure.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except
where otherwise provided in this Agreement or the Related Documents, all
commitments and obligations of Lender under this Agreement or the Related
Documents or any other agreement immediately will terminate and, at Lender's
option, all Indebtedness immediately will become due and payable, all without
notice of any kind to Borrower, except that in the case of an Event of Default
of the type described in the "Insolvency" subsection above, such acceleration
shall be automatic and not optional. In addition, Lender shall have all the
rights and remedies provided in the Related Documents or available at law, in
equity, or otherwise. Except as may be prohibited by applicable law, all of
Lender's rights and remedies shall be cumulative and may be exercised singularly
or concurrently. Election by Lender to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to
Page 10
11
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except
where otherwise provided in this Agreement or the Related Documents, all
commitments and obligations of Lender under this Agreement or the Related
Documents or any other agreement immediately will terminate and at Lender's
option, all Indebtedness immediately will become due and payable, all without
notice of any kind to Borrower, except that in the case of an Event of Default
of the type described in the "Insolvency" subsection above, such acceleration
shall be automatic and not optional. In addition, Lender shall have all the
rights and remedies provided in the Related Documents or available at law, in
equity, or otherwise. Except as may be prohibited by applicable law, all of
Lender's rights and remedies shall be cumulative and may be exercised singularly
or concurrently. Election by Lender to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or to take
action to perform an obligation of Borrower or of any Grantor shall not affect
Lender's right to declare a default and to exercise its rights and remedies.
OPPORTUNITY TO CURE DEFAULT. In the event a non-monetary default of Borrower
occurs under this Agreement, the Security Agreement or the Note, Lender shall
give written notice specifying the non-monetary default to Borrower and
Borrower shall have the period of fifteen days from the delivery of such notice
to cure the non-monetary default. Should Borrower fail to cure the non-monetary
default within the time specified, Lender may avail itself of all the remedies
provided for default including, but not limited to, of all unpaid indebtedness.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Agreement. No alteration of or
amendment to this Agreement shall be effective unless given in writing
and signed by the party or parties sought to be charged or bound by
the alteration or amendment.
APPLICABLE LAW. THIS AGREEMENT HAS BEEN EXECUTED BY BORROWER AND
DELIVERED TO LENDER AND ACCEPTED BY LENDER IN CLEARWATER, FLORIDA. IF
THERE IS A LAWSUIT, BORROWER AND GUARANTORS AGREE UPON LENDER'S REQUEST
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF PINELLAS COUNTY, THE
STATE OF FLORIDA. LENDER, BORROWER AND GUARANTORS HEREBY WAIVE THE
RIGHT TO ANY JURY TRIAL IN ANY ACTION PROCEEDING, OR COUNTERCLAIM
BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER. (INITIAL HERE ____).
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF FLORIDA.
LENDER'S RIGHT TO POSSESSION. Lender shall be entitled to possession of
the Collateral and may use it in any lawful manner not inconsistent
with this Agreement or the Related Documents. When Lender has
possession of any Collateral, whether before or after an Event of
Default, Lender shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral if Lender takes such
action for that purpose as Grantor shall request or as Lender, in
Lenders sole discretion, shall deem appropriate under the
circumstances, but failure to honor any request by Grantor shall not
of itself be deemed to be a failure to exercise reasonable care.
Lender shall not be required to take any steps necessary to preserve
any rights in the Collateral against prior parties, nor to protect,
preserve or maintain any security interest given to secure the
Indebtedness.
Page 11
12
make expenditures or to take action to perform an obligation of
Borrower or of any Grantor shall not affect Lender's right to declare a
default and to exercise its rights and remedies.
OPPORTUNITY TO CURE DEFAULT. In the event a non-monetary default of Borrower
occurs under this Agreement, the Security Agreement, or the Note, Lender shall
give written notice specifying the non-monetary default to Borrower and Borrower
shall have the period of ten days from the delivery of such notice to cure the
non-monetary default. Should Borrower fail to cure the non-monetary default
within the time specified, Lender may avail itself of all the remedies provided
for default including, but not limited to, acceleration of all unpaid
indebtedness.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement.
AMENDMENTS. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Agreement. No alteration of or
amendment to this Agreement shall be effective unless given in writing
and signed by the party or parties sought to be charged or bound by
the alteration or amendment.
APPLICABLE LAW. THIS AGREEMENT HAS BEEN EXECUTED BY BORROWER AND
DELIVERED TO LENDER AND ACCEPTED BY LENDER IN CLEARWATER, FLORIDA. IF
THERE IS A LAWSUIT, BORROWER AND GUARANTORS AGREE UPON LENDER'S REQUEST
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF PINELLAS COUNTY, THE
STATE OF FLORIDA. LENDER, BORROWER AND GUARANTORS HEREBY WAIVE THE
RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER. (INITIAL HERE _____).
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF FLORIDA.
LENDER'S RIGHT TO POSSESSION. Lender shall be entitled to possession of
the Collateral and may use it in any lawful manner not inconsistent
with this Agreement or the Related Documents. When Lender has
possession of any Collateral, whether before or after an Event of
Default, Lender shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral if Lender takes such
action for that purpose as Grantor shall request or as Lender, in
Lenders sole discretion, shall deem appropriate under the
circumstances, but failure to honor any request by Grantor shall not
of itself be deemed to be a failure to exercise reasonable care.
Lender shall not be required to take any steps necessary to preserve
any rights in the Collateral against prior parties, nor to protect,
preserve or maintain any security interest given to secure the
Indebtedness.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may
(but shall not be obligated to) discharge or pay any amounts required
to be discharged or paid by Grantor under this Agreement, including
without limitation all taxes, liens, security interests, encumbrances,
and other claims, at any time levied or placed on the Collateral.
Lender also may (but shall not be obligated to) pay all costs for
insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then
bear interest at the rate charged under the Note from the date
incurred or paid by Lender to the date of repayment by Grantor. All
such expenses shall become a part of the Indebtedness and, at Lender's
option, will (a) be payable on demand, (b) be added to the balance of
the Note and be apportioned among and be payable with any installment
payments to become due during either (1) the term of any applicable
insurance policy or (ii) the remaining term of the Note, or (c)
Page 12
13
be treated as a balloon payment which will be due and payable at the
Note's maturity. This Agreement also will secure payment of these
amounts. Such right shall be in addition to all other rights and
remedies to which Lender may be entitled upon the occurrence of an
Event of Default.
CAPTION HEADINGS. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or
define the provisions of this Agreement.
MULTIPLE PARTIES. All enumerated obligations of Borrower and
Guarantors under this Agreement shall be joint and several, and all
references to one Borrower or Guarantor shall mean each and every
Borrower or Guarantor.
CONSENT TO LOAN PARTICIPATION. Borrower agrees and consents to
Lender's sale or transfer, whether now or later, of one or more
participation interests in the Loans to one or more purchasers,
whether related or unrelated to Lender. Lender may provide, without
any limitation whatsoever, to any one or more purchasers, or potential
purchasers, any information or knowledge Lender may have about
Borrower or about any other matter relating to the Loan, and Borrower
hereby waives any rights to privacy it may have with respect to such
matters. Borrower additionally waives any and all notices of sale of
participation interests, as well as all notices of any repurchase of
such participation interests. Borrower also agrees that the purchasers
of any such participation interests will be considered as the absolute
owners of such interests in the Loans and will have all the rights
granted under the participation agreement or agreements governing the
sale of such participation interests. Borrower further waives all
rights of offset or counterclaim that it may have now or later against
Lender or against any purchaser of such a participation interest and
unconditionally agrees that either Lender or such purchaser may
enforce Borrower's obligation under the Loans irrespective of the
failure or insolvency of any holder of any interest in the Loans.
Borrower further agrees that the purchaser of any such participation
interests may enforce its interests irrespective of any personal
claims or defenses that Borrower may have against Lender.
COSTS AND EXPENSES. Borrower agrees to pay upon demand all of Lender's
expenses, including without limitation reasonable costs of Lender and
reasonable attorneys' fees, incurred in connection with the
preparation, execution, enforcement, modification and collection of
this Agreement or in connection with the Loans made pursuant to this
Agreement. This includes, subject to any limits under applicable law,
Lender's reasonable attorneys' fees and Lender's legal expenses,
whether or not there is a lawsuit, including reasonable attorneys'
fees for bankruptcy proceedings (including efforts to modify or vacate
any automatic stay or injunction), appeals, and any anticipated post-
judgment collection services. Borrower also will pay any court costs,
in addition to all other sums provided by law.
NOTICES. All notices required to be given under this Agreement shall
be given in writing, may be sent by tele-facsimile (unless otherwise
required by law), and shall be effective when actually delivered or
when deposited with a nationally recognized overnight courier or
deposited in the United States mail, first class, postage prepaid,
addressed to the party to whom the notice is to be given at the
address shown above. Any party may change its address for notices
under this Agreement by giving formal written notice to the other
parties, specifying that the purpose of the notice is to change the
party's address.
Page 13
14
To the extent permitted by applicable law, if there is more than one
Borrower, notice to any Borrower will constitute notice to all
Borrowers. For notice purposes, Borrower will keep Lender informed at
all times of Borrowers current address(es).
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement to be invalid or as to any person or circumstance,
such finding shall not render that provision invalid or unenforceable
as to any other persons or circumstances. If feasible, any such
offending provision shall be deemed to be modified to be within the
limits of enforceability or validity; however, if the offending
provision cannot be so modified, it shall be stricken and all other
provisions of this Agreement in all other respects shall remain valid
and enforceable.
SUCCESSORS AND ASSIGNS. All covenants and agreements contained by or
on behalf of Borrower shall bind its successors and assigns and shall
inure to the benefit of Lender, its successors and assigns. Borrower
shall not, however, have the right to assign its rights under this
Agreement or any interest therein, without the prior written consent
of Lender.
SURVIVAL. All warranties, representations, and covenants made by
Borrower and Guarantors in this Agreement or in any certificate or
other instrument delivered by Borrower or Guarantors to Lender under
this Agreement shall be considered to have been rolled upon by Lender
and will survive the making of the Loan and delivery to Lender of the
Related Documents, regardless of any investigation made by Lender or
on Lender's behalf.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of
this Agreement.
WAIVER. Lender shall not be deemed to have waived any rights under
this Agreement unless such waiver is given in writing and signed by
Lender. No delay or omission on the part of Lender in exercising any
right shall operate as a waiver of such right or any other right. A
waiver by Lender of a provision of this Agreement shall not prejudice
or constitute a waiver of Lenders right otherwise to demand strict
compliance with that provision or any other provision of this
Agreement. No prior waiver by Lender, nor any course of dealing between
Lender and Borrower, or between Lender and any Grantor, shall
constitute a waiver of any of Lender's rights or of any obligations of
Borrower or of any Grantor as to any future transactions. Whenever
the consent of Lender is required under this Agreement, the granting of
such consent by Lender in any instance shall not constitute continuing
consent in subsequent instances where such consent is required, and in
all cases such consent may be granted or withheld in the sole
discretion of Lender.
ENFORCEABILITY OF COLLATERAL. To the extent the Collateral consists of
accounts, chattel paper, or general intangibles, the Collateral shall
be enforceable in accordance with its terms, shall be genuine, and
comply with applicable laws concerning form, content and manner of
preparation and execution, and all persons appearing to be obligated
on the Collateral shall have authority and capacity to contract and
shall in fact be obligated as they appear to be on the Collateral.
Page 14
15
TRANSFER OF COLLATERAL. Upon default, Grantor shall deliver the
collateral to Lender, together with Assignments of Grantor's Rights in
the collateral in such form as Lender shall require.
TRANSACTIONS INVOLVING COLLATERAL. Grantor shall not sell, offer to
sell, or otherwise transfer or dispose of the Collateral. Grantor
shall not pledge, mortgage, encumber or otherwise permit the Collateral
to be subject to any lien, security interest, encumbrance, or charge,
other than the Security Interest provided for in this Agreement,
without the prior written consent of Lender. This includes security
interests even if junior in right to the Security Interests granted
under this Agreement. Unless waived by Lender, all proceeds from any
disposition of the Collateral (for whatever reason) shall be held in
trust for Lender and shall not be commingled with any other funds;
provided however, this requirement shall not constitute consent by
Lender to any sale or other disposition.
TIME. Grantor represents and warrants to Lender that as of the time it
offers Collateral to Lender it holds good and marketable title to the
Collateral, free and clear of all liens and except encumbrances for the
lien of this Agreement. No financing statement covering any of the
Collateral is on file in any public office other than those which
reflect the security interest created by this Agreement or to which
Lender has specifically consented. Grantor shall defend Lender's
rights, in the Collateral against the claims and demands of all other
persons.
TAXES, ASSESSMENTS AND LIENS. Grantor will pay when due all taxes,
assessments and liens upon the Collateral, its use or operation, upon
this Agreement, upon any promissory note or notes evidencing the
Indebtedness, or upon any of the other Related Documents. Grantor may
withhold any such payment or may elect to contest any lien if Grantor
is in good faith conducting an appropriate proceeding to contest the
obligation to pay and so long as Lender's interest in the Collateral
is not jeopardized in Lenders sole opinion. If the Collateral is
subjected to a lien which is not discharged within fifteen (15)
days, Grantor shall deposit with Lender cash, a sufficient corporate
surety bond or other security satisfactory to Lender in an amount
adequate to provide for the discharge of the lien plus any interest,
costs, reasonable attorneys' fees or other charges that could accrue as
a result of foreclosure or sale of the Collateral. In any contest
Grantor shall defend itself and Lender and shall satisfy any final
adverse judgment before enforcement against the Collateral. Grantor
shall name Lender as an additional obligee under any surety bond
furnished in the contest proceedings.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply
promptly with all laws, ordinances, rules and regulations of all
governmental authorities, now or hereafter in effect, applicable to
the ownership, production, disposition, or use of the Collateral.
Grantor may contest in good faith any such law, ordinance or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Lender's interest in the Collateral, in
Lender's opinion, is not jeopardized.
CROSS DEFAULT. A default in any loan due by Borrower to Lender shall
constitute a default under all loans owed by Borrower to Lender and
shall entitle Lender to all remedies for default under all outstanding
loans, specifically including the remedy of acceleration of each and
every outstanding loan.
Pop 15
16
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply
promptly with all laws, ordinances, rules and regulations of all
governmental authorities, now or hereafter in effect, applicable to
the ownership, production, disposition, or use of the Collateral.
Grantor may contest in good faith any such law, ordinance or
regulation and withhold compliance during any proceeding, including
appropriate appeals, so long as Lender's interest in the Collateral, in
Lender's opinion, is not jeopardized.
CROSS DEFAULT. A default in any loan due by Borrower to Lender shall
constitute a default under all loans owed by Borrower to Lender and
shall entitle Lender to all remedies for default under all outstanding
loans, specifically including the remedy of acceleration of each and
every outstanding loan.
ADDITIONAL GENERAL PROVISIONS.
A. Borrower shall pay all loan closing costs, including without
limitation, attorney's fees, recording costs, and any documentary
stamp, intangible or other taxes or costs imposed by governmental
authorities on this transaction or the transactions contemplated
hereunder (including transactions relating to the Collateral and the
perfection of Lender's lien upon the Collateral) and such other
expenses that may be incurred incidental to closing and servicing of
the loans.
B. All matters relating to the loans, including all instruments and
documents required, are subject to Lender's policies and procedures in
effect, applicable governmental regulations and/or statutes, and
approval by Lender and Lender's Counsel. All persons responsible for
document preparation and/or execution and delivery and all Obligors
thereunder, are subject to Lender approval.
C. This Loan Agreement and any and all other loan documents contemplated
herein, including all of those loan documents identified in the
Schedule of Exhibits attached hereto, may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same instrument and in making
proof of such loan document, it shall not be necessary to produce or
account for more than one such counterpart.
BORROWER, LENDER, AND GUARANTORS ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF
THIS BUSINESS LOAN AGREEMENT, AND EACH AGREES TO ITS TERMS. THIS AGREEMENT IS
DATED AS OF OCTOBER 18, 2000.
(SIGNATURE PAGE FOLLOWS)
Page 16
17
BORROWER:
PODS, INC.
BY: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
XXXXX X. XXXXXXXX
its President
LENDER:
FIRST NATIONAL BANK OF FLORIDA
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
XXXXXX X. XXXXXX,
Chairman of the Board
GUARANTORS:
-------------------------------------
Xxxxxxxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this 18th day of
October, 2000, by XXXXX X. XXXXXXXX, President of PODS, INC., a Florida
corporation, who is personally known to me or who has produced (personally
known) as identification.
WITNESS my hand and official seal at Clearwater, State of Florida,
County of Pinellas, the day and year last aforesaid.
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Notary Public
My Commission Expires: Xxxxxx X. Xxxxxx
MY COMMISSION #CC798438 EXPIRES
January 1, 2003 Xxxxxx
BONDED THRU XXXX XXXX INSURANCE, INC.
Page 17
18
By:
-------------------------------------
its ____________ President
GUARANTORS:
/s/ Xxxxxxxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxxxxxxx X. Xxxxxxxxx
/s/ Xxxxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
____________, 2000, by XXXXX X. XXXXXXXX, President of PODS, INC., a Florida
corporation, who is personally known to me or who has produced
__________________ as identification.
WITNESS my hand and official seal at Clearwater, State of
Florida, County of Pinellas, the day and year last aforesaid.
-------------------------------------
Notary Public
My Commission Expires:
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this ____ day of
_____________, 2000, by _____________, _____________ of FIRST NATIONAL BANK OF
FLORIDA, a National Banking association, who is personally known to me or who
has produced _____________ as identification.
WITNESS my hand and official seal at Clearwater, State of Florida,
County of Pinellas, the day and year last aforesaid.
Page 18
19
STATE OF FLORIDA
COUNTY OF PINELLAS
The foregoing instrument was acknowledged before me this 18th day of
October, 2000, by XXXXX X. XXXXXXXX, President of PODS, INC., a Florida
corporation, who is personally known to me or who has produced (personally
known) as identification.
WITNESS my hand and official seal at Clearwater, State of Florida,
County of Pinellas, the day and year last aforesaid.
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Notary Public
My Commission Expires: Xxxxxx X. Xxxxxx
MY COMMISSION #CC798438 EXPIRES
January 1, 0000 Xxxxxx
XXXXXX XXXX XXXX XXXX INSURANCE, INC.
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me this ____ day of
____________ , 2000, by XXXXXXXXXXX X.XXXXXXXXX, who is personally known to me
or who has produced ____________ as identification.
WITNESS my hand and official seal at ___________, State of ___________,
County of ____________, the day and year last aforesaid.
-------------------------------------
Notary Public
My Commission Expires:
STATE OF ____________
COUNTY OF ____________
The foregoing instrument was acknowledged before me this ____ day of
____________ , 2000, XXXXX XXXXXXXXX, who is personally known to me or who has
produced ____________ as identification.
WITNESS my hand and official seal at ___________, State of ___________,
County of ____________, the day and year last aforesaid.
-------------------------------------
Notary Public
My Commission Expires:
Page 19
00
XXXXX XX XXX XXXX
XXXXXX XX XXXXXX
The foregoing instrument was acknowledged before me this 18th day of
October, 2000, by XXXXXXXXXXX X. XXXXXXXXX, who is personally known to me or
who has produced (NY Driver's License) as identification.
WITNESS my hand and official seal at Mineola, State of New York,
County of Nassau, the day and year last aforesaid.
/s/ XXXXX X. XXXXXX
-------------------------------------
Notary Public
My Commission Expires: 02/08/2002 Xxxxx X. Xxxxxx
Notary Public, State of New York
No. 4913848
Qualified in Nassau County
Commission Expires February 8, 0000
XXXXX XX XXX XXXX
XXXXXX XX XXXXXX
The foregoing instrument was acknowledged before me this 18th day of
October, 2000, by XXXXX XXXXXXXXX, who is personally known to me or who has
produced (NY Driver's License) as identification.
WITNESS my hand and official seal at Mineola, State of New York,
County of Nassau, the day and year last aforesaid.
/s/ XXXXX X. XXXXXX
-------------------------------------
Notary Public
My Commission Expires: 02/08/2002 Xxxxx X. Xxxxxx
Notary Public, State of New York
No. 4913848
Qualified in Nassau County
Commission Expires February 8, 2002
Page 20
