LOAN WORKOUT AGREEMENT
THIS LOAN WORKOUT AGREEMENT (the "Agreement"), is made and entered into
as of the 2nd day of August, 1999, by and between MIXON CORPORATION, a
Florida corporation d/b/a Mixon Leathercraft (the "Borrower"), JOSEPH ROTMIL,
individually and GERALD O'CONNELL, individually (jointly and severally, the
"Guarantor"), who are collectively, jointly and severally sometimes referred
to herein as the "Obligors", and EASTERN NATIONAL BANK, a national banking
association (the "Bank").
R E C I T A L S
A. On August 1, 1997, the Borrower made, executed and delivered to Bank
a Commercial Note (the "Note") payable to the order of the Bank in the
original principal sum of Two Hundred Fifty Thousand and 00/100
($250,000.00).
B. On November 30, 1995, as security for the Borrower's performance and
payment of the obligations under the Note, the Borrower executed and
delivered to Bank a Continuing General Security Agreement (the "Security
Agreement"), granting Bank a security interest in certain personal
property owned by Borrower, including all inventory, chattel paper,
accounts, contract rights, equipment, general intangibles and fixtures
(collectively, the "Collateral Property").
C. On November 30, 1995, Joseph Rotmil executed and delivered an
Individual or Partnership Continuing Guaranty in favor of the Bank as
to all present and future obligations and indebtedness of the Borrower
to the Bank, however, limited to an amount of $250,000.00.
D. On July 2, 1995, Gerald O'Connell executed and delivered an
Individual or Partnership Continuing Guaranty in favor of the Bank as
to all present and future obligations and indebtedness of the Borrower
to the Bank, however, limited to an amount of $110,000.00. The
foregoing Continuing Guaranties are hereinafter referred to as the
"Continuing Guaranties".
E. The Note, Security Agreement and Continuing Guaranties, and any
documents or instruments incorporated therein or executed by and
between the Bank and the Obligors in connection therewith, are referred
to hereinafter as the "Loan Documents").
F. The Note matured July 5, 1998 and the Borrower has failed to pay in
full the outstanding principal balance, which is currently $249,818.50,
and, thus, acknowledges and agrees it is in default of the payment
terms of the Note and of the Loan Documents.
G. The Borrower and Guarantor have requested that the Bank enter into
this Agreement and the Bank has agreed to enter into the same to
allow such parties
additional time to pay the sums due, owing and unpaid on the Note and
Continuing Guaranties such that the sums may be paid as more
particularly set forth herein, and whereby certain other accommodations
may be granted by the Bank to the Borrower and Guarantor, as more
particularly set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants and agreements, and the sum of Ten and 00/100 ($10.00) Dollars and
other good and valuable consideration, the receipt, validity, adequacy and
sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
1. RECITALS. The foregoing recitals of fact are true and correct and
are incorporated herein by reference.
2. PRINCIPAL AND INTEREST OUTSTANDING. The Borrower and Guarantor
acknowledge and agree that, as of June 17, 1999, the following amounts are due
on the Note:
a. Principal of $249,818.50; and
b. Unpaid and accrued interest of $26,529.33.
3. PAYMENT OF NOTE. The Borrower shall make the following payments to
the Bank:
a. a principal reduction payment of $7,500.00 shall be made by
Borrower immediately upon execution of this Agreement;
b. the remaining principal amount of $242,318.50 shall be due and
payable in eleven (11) monthly installments of $2,400.00, commencing on the
21st day of July, 1999 and on the 21st day of each and every consecutive
month thereafter; and
c. a final balloon payment equal to the unpaid principal balance,
together with any accrued and unpaid Interest, shall be due and payable in
full on June21, 2000; and
d. interest on the outstanding principal amount set forth in
paragraph3(b) above shall accrue at the rate of interest being charged under
the Note, which rate is two (2.00%) per annum floating above the highest
"Prime Rate" and adjusting on a daily basis as the term "Prime Rate" is
defined in the Note. As of the date of this Agreement, the Prime Rate is
7.75%.
4. PAYMENT OF EXPENSES. The Bank and Borrower shall each bear and be
responsible for paying their own attorney's fees, costs each may incur in
connection with the preparation or review of this Agreement and any of the
documents contemplated hereunder.
5. RATIFICATION. Except as provided specifically herein or amended or
modified hereby, the Note, Security Agreement, Continuing Guaranty, and Loan
Documents, including all representations and warranties therein, are hereby
ratified, confirmed and incorporated herein by reference, and the same are,
and shall, remain in full force and effect without further change,
modification, alteration or amendment.
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6. REPRESENTATIONS AND WARRANTIES. As a material inducement for the
Bank to enter into this Agreement, and agree to repayment of the sums due and
owing under the Loan Documents, the Obligors hereby represent and warrant to
and covenant with the Bank as follows:
a. that, to the best of their knowledge, the liens and security
interests evidenced by and described in the Loan Documents constitute valid
and subsisting liens upon the Collateral Property, subject only to the prior
liens or interests, if any, as set forth in the Loan Documents;
b. that, to the best of their knowledge, the failure of the Bank to
set forth any other defaults, claims or demands herein is not to be deemed a
waiver thereof, and the Bank reserves the right to assert such defaults,
claims, and demands in any subsequent proceedings between the parties to this
Agreement;
c. that, to the best of their knowledge, no construction,
materialmen's, mechanic's or other type of liens have been filed against or
encumber the Collateral Property, and that the Obligors have no knowledge or
notice of intention to file a lien by any contractor, subcontractor,
materialmen, supplier, laborer or any other party under the construction lien
law or any other law of the State of Florida;
d. that, to the best of their knowledge, no entity or individual has
or can claim any interest in the Collateral Property by virtue of any
agreement or act of the Obligors or written document not appearing of record,
and that no contract has been entered into for the sale or conveyance of the
Collateral Property, and that there is no unrecorded deed(s), of trust,
mortgage(s), bill(s) of sale or other conveyance(s) or encumbrance(s)
outstanding that may affect the Collateral Property;
e. that this Agreement shall not affect the obligations of the
Guarantor under the Note, Continuing Guaranty, and the Loan Documents;
f. that the Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, to the
best of the undersigned officer's knowledge is in compliance with all laws,
regulations, ordinances and orders of public authorities applicable to it,
and has full power and authority to consummate and execute this Agreement and
all transactions contemplated hereby;
g. that the execution, delivery and performance by Borrower and
Guarantor, of this Agreement and any document contemplated hereunder, is
within the power, capacity and authority of such parties, has been duly
authorized by all requisite corporate action on the part of the Borrower and
the Guarantor do not require the approval of any governmental authority and,
to the best of such parties' knowledge, will not violate any provision of
law, any order of any court, or of other governmental authority, the articles
of incorporation or the bylaws of the Borrower or Guarantor, or any
indenture, agreement or other instrument to which the Borrower or Guarantor
is a party or by which any of the Collateral Property is bound and does not
conflict with or result in a breach of or constitute default under an
indenture, agreement or other instrument, or result in the creation or
imposition of any lien, charge, or encumbrance of any
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nature whatsoever upon any of the Collateral property, except as specified in
the Loan Documents and this Agreement, and constitutes the legal, valid and
binding obligations of the Borrower and the Guarantor in accordance with
their respective terms;
h. that, immediately upon the execution of this Agreement, the
Borrower shall deliver to the Bank, balance sheets, statements of profit and
loss and other financial statements which accurately represent the financial
condition of the Borrower and Guarantor as of the dates thereof and (where
applicable), the results of its or their operations for the periods for which
the same have been furnished, and disclosing all known liabilities, direct
and contingent, as of their respective dates;
i. that there is not now pending against or affecting the Borrower
or Guarantor, nor to the knowledge of such parties, is there threatened any
action, suit or proceeding at law or an equity or by or before any
administrative agency, which if adversely determined, would materially impair
or effect such parties' financial condition or operations or ability to make
the payments contemplated under this Agreement; and
j. that legal title to the Collateral Property is held by the
Borrower, and the Collateral Property is not now damaged or injured as a
result of any fire, explosion, accident, flood or other casualty .
7. FREE AND VOLUNTARY ACT. The execution of this Agreement and any
document contemplated hereunder and the consummation of the transactions
contemplated hereby by the Borrower and the Guarantor are the free and
voluntary act of such respective parties. Neither the Borrower nor the
Guarantor is acting under any duress, undue influence, misapprehension or
misrepresentation by the Bank, Affiliated Party, or any agent, attorney or
other representative of the Bank. The Borrower and Guarantor acknowledge and
agree that each exercised their independent judgment to act with respect to
their decision to execute and deliver the same to the Bank. The Borrower and
Guarantor acknowledge that each is aware of the legal effect and financial
implications of this Agreement and its terms and conditions, and understands
the contents and implications hereof.
8. FORBEARANCE. Notwithstanding anything contained herein or in the Loan
Documents to the contrary, including, without limitation Paragraph 10 below,
in reliance upon the agreements and representations of the parties set forth
herein, the Bank agrees that it will forebear commencing legal action to
enforce its rights pursuant to the Loan Documents, provided, however, that
the Borrower, without further notice or demand from and after the date
hereof, fully abides and complies with the payment terms and conditions set
forth in paragraph3 of this Agreement.
9. CONSIDERATION. The Bank, Borrower and Guarantor acknowledge that
they have received valuable, valid, adequate and sufficient consideration for
their execution of this Agreement and any document contemplated hereby.
10. EVENTS OF DEFAULT. At Bank's option, the Bank shall immediately have
all the rights accorded Bank by law and equity and under this Agreement or
any other Loan Document
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to enforce this Agreement, the Note and any other Loan Document, upon the
occurrence of any of the following events of default ("Event(s) of Default"):
a. any failure to make the payments required in Paragraph3 of this
Agreement within five (5) days of the due date; or
b. the occurrence of an Event of Default as such term is defined in
the Note, Security Agreement or any Loan Document.
11. INDEMNIFICATION. The Borrower and Guarantor agree to indemnify and
hold the Bank free and harmless from and against any losses, damages, costs
or expenses, including, attorneys fees, costs and other expenses incurred at
any trial, appellate, bankruptcy or other proceeding, incurred as a direct or
indirect result of the incorrectness or untruthfulness of any of the
representations, warranties, covenants and agreements set forth above or
otherwise set forth in any document contemplated hereunder, including any
loss, damage cost or expense arising from or out of this Agreement and any of
the Loan Documents, to the extent set forth in the Loan Documents.
12. REQUISITE POWER AND AUTHORITY. The parties hereto represent and
warrant that
a. the execution, delivery and performance of this Agreement has
been duly authorized by all necessary actions (corporate or otherwise) and do
not require the consent or approval of the stockholders (if a corporation) of
any party or of any other person or entity whose consent has not been
obtained;
b. the execution, delivery and performance of this Agreement does
not and shall not conflict with any provision of any parties bylaws or
articles of incorporation (if a corporation), partnership agreement (if a
partnership) or trust agreement or other document pursuant to which such
party was created and exists, nor with any existing rule, regulation or order
of any court or governmental body;
c. the Bank is a national banking association, in good standing and
authorized to conduct business in the State of Florida; and
d. the Borrower is a Florida corporation, in good standing and
authorized to conduct business in the State of Florida.
13. RELIEF FROM STAY. The Obligors hereby acknowledge and agree that, in
consideration of the recitals and mutual premises and covenants contained
herein, and for other good and valuable consideration, the receipt, validity,
adequacy and sufficiency of which are hereby acknowledged, including the
forbearance of Bank from exercising any of its rights and remedies otherwise
available to it under the Note, Security Agreement and Loan Documents, in the
event any Obligor (i)files or is the subject of any petition for relief with
any bankruptcy court of competent jurisdiction or is the subject of any
petition under Title11 of the United States Code, as amended, (ii)is or
becomes the subject of any order for relief issued under Title11 of the
United States Code, as amended, (iii)files or is the subject of any petition
seeking any reorganization, arrangement, compensation, readjustment,
liquidation, dissolution or other
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similar relief under any present, or future federal or state act or law
relating to bankruptcy, insolvency or any other relief for debtors, (iv)seeks
or consents to or acquiesces in the appointment of any trustee, receiver,
conservator or liquidator, or (v)is the subject of any order, judgment, or
decree entered by any court of competent jurisdiction approving a petition
filed against such respective party for liquidation, dissolution or similar
relief under any present or future federal or state act relating to
bankruptcy, insolvency or relief for debtors, the Bank shall thereupon be
entitled to complete relief from any automatic stay imposed by Section362 of
Title11 of the United States Code, as amended, or otherwise, on or against
the exercise of the rights and remedies otherwise available to Bank as
provided in the Loan Documents, Note, Security Agreement, and as otherwise
provided by law.
14. FURTHER MODIFICATION. This Agreement, the Note, Security Agreement
or any of the other Loan Documents shall not be further extended or modified
unless such modification is by an instrument in writing signed by all of the
parties.
15. WAIVER OF JURY TRIAL. BORROWER AND GUARANTOR, JOINTLY AND SEVERALLY,
HEREBY KNOWINGLY , IRREVOCABLY , VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHT THAT ALL OR ANY OF THEM MAY HAVE TO A TRIAL BY JURY AND TO BRING ANY
ACTION OR PROCEEDING IN THE NATURE OF A COUNTERCLAIM, PERMISSIVE OR
COMPULSORY, BASED ON THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, THE CONSOLIDATED NOTE,
MODIFICATION AGREEMENT OR ANY OF THE LOAN DOCUMENTS, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
BY ANY PARTY HERETO OR TO THE NOTE, SECURITY AGREEMENT OR ANY OF THE LOAN
DOCUMENTS.
16. CONFLICT. In the event of any conflict between the terms and
provisions of this Agreement, the Note, the Security Agreement, or any of the
Loan Documents, the terms of this Agreement shall control and prevail.
17. NON-EXCLUSIVITY OF REMEDIES. No remedy in this Agreement, the Note,
Security Agreement or any of the other Loan Documents, is intended to be
exclusive of any other remedy or remedies, and each and every such remedy
shall be cumulative, and shall be in addition to every other remedy given
hereunder or thereunder or now or hereafter existing at law or hereafter
existing at law or in equity or by statute or otherwise.
18. BANK NOT A JOINT VENTURER OR PARTNER. Nothing contained in this
Agreement shall be deemed or construed to create a relationship of joint
venturer, partner or of any other association whatsoever between Bank and/or
the Borrower, or Guarantor, it being expressly understood and agreed that
their relationship is solely that of a lender and borrower.
19. NO FIDUCIARY RELATIONSHIP. The relationship between Bank and
Borrower and/or any guarantor or the Note is solely that of lender and
borrower and/or guarantor. The Bank has no fiduciary or other special
relationship with or duty to the Borrower or any guarantor
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of the Note and none is created hereby or may be inferred from any course of
dealing or act or omission of the Bank.
20. JURISDICTION AND VENUE. The parties hereto acknowledge and agree
that jurisdiction and venue of any action arising hereunder shall be in a
court of competent jurisdiction in Miami-Dade County, Florida.
21. GOVERNING LAW. This Agreement shall be governed by the laws of the
State of Florida, which laws shall be applicable in the interpretation,
construction and enforcement hereof.
22. TIME IS OF THE ESSENCE. Time is of the essence with respect to each
and every covenant, agreement and obligation of the Borrower and Guarantor
under this Agreement, the Loan Documents and any and all instruments
contemplated hereunder or hereafter evidencing, securing or otherwise
relating to the indebtedness secured by this Agreement, the Security
Agreement, or any of the Loan Documents.
23. CAPTIONS. Captions contained in this Agreement are inserted only as
a matter of convenience and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any provision hereof.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one instrument.
25. BENEFIT. All of the terms, covenants and conditions contained herein
are and shall be binding upon, and shall inure to the benefit of the
respective parties, their heirs, administrators, successors and/or assigns.
26. SEVERABILITY. In the event any provision of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not
affect any other part of this Agreement and this Agreement shall be construed
as if such invalid, illegal or enforceable provision had not be contained
herein.
27. SURVIVAL OF REPRESENTATIONS. All of the foregoing representations and
warranties of the Borrower and Guarantor, jointly, severally and
collectively, made herein shall survive the closing of this Agreement and any
transaction contemplated hereby.
28. ENTIRE AGREEMENT. It is acknowledged and agreed that, except for the
Loan Documents and this Agreement, there are no other agreements whether
written or oral between Bank, Borrower and Guarantor, except for supplemental
letter amendment dated 8/4/99 which is attached hereto and a part hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this instrument as
of the date and year first above written.
Signed, sealed and delivered BANK:
in the presence of:
EASTERN NATIONAL BANK, a national
banking association
/s/ Name illegible
- --------------------------------------
Sign & Print Name: Name illegible By: /s/ George M. Gonzalez
------------------------------------
/s/ Leonardo Mautsen Print Name: George M. Gonzalez
- -------------------------------------- ----------------------------
Sign & Print Name: Leonardo Mautsen Title: Vice President
---------------------------------
BORROWER:
MIXON CORPORATION, a Florida
corporation, d/b/a Mixon Leathercraft.
/s/ Marc E. Bercoon
- ------------------------------------
Sign & Print Name: Marc E. Bercoon By: /s/ Joseph Rotmil
------------------------------------
/s/ Beth McCagh Print Name: Joseph Rotmil
- ------------------------------------ ----------------------------
Sign & Print Name: Beth McCagh Title: President & CEO
---------------------------------
GUARANTOR:
/s/ Marc E. Bercoon
- ------------------------------------
Sign & Print Name: Marc E. Bercoon
/s/ Beth McCagh /s/ Joseph Rotmil
- ------------------------------------ ---------------------------------------
Sign & Print Name: Beth McCagh Joseph Rotmil
- ------------------------------------ ---------------------------------------
Sign & Print Name: GERALD O'CONNELL
- ------------------------------------
Sign & Print Name:
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STATE OF FLORIDA )
) SS:
COUNTY IF MIAMI-DADE )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me
this ______ day of July, 1999 by ___________________________________, in his
capacity as _______________________ of MIXON CORPORATION, a _________________
corporation. He/She is personally known o me or has produced
___________________________ [insert other identification if applicable] as
identification and did [did not] take an oath.
---------------------------------------
Sign & Print Name:
NOTARY PUBLIC, State of Florida
Serial No:
My Commission Expires:
STATE OF FLORIDA )
) SS:
COUNTY IF MIAMI-DADE )
I HEREBY CERTIFY that the foregoing instrument was acknowledged before me
this ______ day of July, 1999 by ________________________________________, in
his/her capacity as ______________________________________ of EASTERN
NATIONAL BANK, a national banking association. He/She is personally known to
me or has produced _________________________ [insert other identification if
applicable] as identification and did [did not] take an oath.
---------------------------------------
Sign & Print Name:
NOTARY PUBLIC, State of Florida
Serial No:
My Commission Expires:
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