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Exhibit 10.7
REVOLVING LINE OF CREDIT NOTE
$25,000,000.00 , Georgia
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, 1998
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FOR VALUE RECEIVED, the undersigned, ABR INFORMATION SERVICES, INC., a
Florida corporation (the "Borrower"), promises to pay to the order of BARNETT
BANK, N.A., a national banking association (the "Lender"), the principal sum of
TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00), together with interest
on the principal balance remaining unpaid from time to time at the rates set
forth below.
Revolving Line-of-Credit. This Note evidences a revolving line-of-credit
extended by the Lender to the Borrower on the date hereof (the "Loan"). Proceeds
of this Note may be disbursed by the Lender to the Borrower and shall be repaid
by the Borrower to the Lender in the manner set forth below in this Note and in
accordance with a Loan Agreement being executed by the Lender, the Borrower and
the guarantors as described therein on or about the date hereof (the "Loan
Agreement"). Proceeds that are disbursed and repaid from time to time shall be
thereafter available for redisbursement under this Note as provided in the Loan
Agreement. Provided however, the principal amount outstanding under this Note
shall not at any time exceed the principal sum shown above, nor the maximum
amount permitted under the terms of the Loan Agreement.
Term. The term of this Note is from the date of this Note through and
including June, 1, 2001 (the "Term"). The last day of the Term will be sometimes
referred to below as the "Maturity Date".
Interest. The principal balance of this Note remaining unpaid from time to
time shall bear interest strictly as provided in the Loan Agreement.
Manner of Calculation. Interest shall be calculated on the basis of a
three hundred sixty (360) day year for actual days elapsed. Interest will be
charged on the principal balance of the loan that remains outstanding from time
to time.
Interest Limitation. Notwithstanding any other provision of this Note or
of any instrument securing this Note or any other instrument executed in
connection with the Loan evidenced hereby, it is expressly agreed that the
amounts payable under this Note or under the other aforesaid instruments for the
payment of interest or any other payment in the nature of or which would be
considered as interest or other charge for the use or loan of money shall not
exceed the highest rate allowed by law, from time to time, to be charged by
Lender. In the event the provisions of this Note or of any instruments referred
to in this paragraph, regarding the payment of interest or
Signed for Identification
By:
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The Authorized Agent of Borrower
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other payments in the nature of or which would be considered as interest or
other charge for the use or loan of money operate to produce a rate that exceeds
such limitation, then the excess over such limitation will not be payable and
the amount otherwise agreed to have been paid shall be reduced by the excess so
that such limitation will not be exceeded, and if any payment actually made
shall result in such limitation being exceeded, the amount of the excess shall
constitute and be treated as a payment on the principal hereof and shall operate
to reduce such principal by the amount of such excess, or if in excess of the
principal indebtedness, such excess shall be refunded.
Payments. Principal and interest shall be due and payable and shall be
paid at Post Office Box 12288, St. Petersburg, Florida 33733-2288, ATTN.:
Commercial Loan Department, or at such other place as the Lender may designate
from time to time as follows:
(i) Monthly Payments. Accrued interest shall be due and payable and shall
be paid monthly, commencing on the date that is exactly one (1) month following
the date of this Note, and on the same day of each succeeding monthly period
thereafter through and including the same day of the month next preceding the
Maturity Date.
(ii) Principal Reductions. Principal payments shall be made from time to
time as provided in the Loan Agreement being executed on or about the date
hereof.
(iii) Maturity Date. On the Maturity Date, all indebtedness evidenced by
this Note (whether unpaid principal, accrued interest or otherwise) that remains
unpaid shall be due and payable and shall be paid.
Late Charge. Any installment not received within ten (10) days when due
shall be subject to, and it is agreed that the Lender shall collect thereon and
therewith a "late charge" in the amount of five percent (5%) of the payment upon
each such delinquent installment. Said "late charge" shall be immediately due
and payable and shall be paid by the Borrower without notice or demand of the
holder hereof.
Prepayment. Borrower shall have the option of prepaying all or any part of
the principal of this Note at any time during the term of this Note, without
notice, premium or penalty for the privilege of such prepayments. The Lender may
require that any partial prepayments be made on the date payments are due. In
the event of any full prepayment, all accrued interest and other charges
evidenced by this Note and the instruments of security for this Note shall be
paid at the same time as such full principal prepayments.
Consent and Waiver. Each Obligor (which term shall mean and include the
Borrower, each guarantor, each endorser, and all others who may become liable
for all or any part of the obligations evidenced and secured hereby), does
hereby, jointly and severally: (a) consent to any
Signed for Identification
By:
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The Authorized Agent of Borrower
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forbearance or extension of the time or manner of payment hereof and to the
release of all or any part of any security held by the Lender to secure payment
of this Note and to the subordination of any instrument of security securing
this Note as to all or any part of the property encumbered thereby, all without
notice or consent of that party; (b) agree that no course of dealing or delay or
omission or forbearance on the part of the Lender in exercising or enforcing any
of its rights or remedies hereunder or under any instrument securing this Note
shall impair or be prejudicial to any of the Lender's rights and remedies
hereunder or to the enforcement hereof and that the Lender may extend or
postpone the time and manner of payment and performance of this Note and any
instrument securing this Note, may grant forbearances and may release, wholly or
partially, any security held by the Lender as security for this Note and
release, partially or wholly, any person or party primarily or secondarily
liable with respect to this Note, all without notice to or consent by any party
primarily or secondarily liable hereunder and without thereby releasing,
discharging or diminishing its rights and remedies against any other party
primarily or secondarily liable hereunder; and (c) except as otherwise set forth
in this Note and the instruments of security for this Note, waive notice of
acceptance of this Note, notice of the occurrence of any default hereunder or
under any instrument securing this Note and presentment, demand, protest, notice
of dishonor and notice of protest and notices of any and all action at any time
taken or omitted by the Lender in connection with this Note or any instrument
securing this Note and waives all requirements necessary to hold that party to
the liability of that party.
Cross Default. A default under this Note shall be and constitute a default
under any and all other notes or other evidence of indebtedness and any
instruments of security therefor in which an Obligor is liable and of which the
Lender is the holder (collectively the "Other Notes"). A default under any other
notes or other evidence of indebtedness or any instrument of security therefor
in which an Obligor is liable and the Lender is the holder, including, without
limitation, under the Other Notes, shall constitute a default under this Note
and any instruments of security therefor.
Events of Default. The happening of any of the following events shall
constitute a default hereunder: (a) failure of any Obligor to pay any principal,
interest or any other sums required hereunder when due under this Note; or (b) a
default shall occur in any instrument securing this Note or in any other
instrument executed in connection with the Loan evidenced hereby, which is not
cured within the applicable curative period set forth in such instruments; or
(c) a default shall occur under the Other Notes.
Acceleration. If a default shall occur hereunder which is not cured within
thirty (30) days, then at the option of the Lender, the entire principal sum
then remaining unpaid and accrued interest shall immediately become due and
payable without notice or demand, and said principal shall bear interest from
such date at the highest legal rate permitted by law, from time to time, to be
charged by Lender; it being agreed that interest not paid when due shall, at the
option of the
Signed for Identification
By:
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The Authorized Agent of Borrower
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Lender, draw interest at the rate provided for in this paragraph. Failure to
exercise the above options shall not constitute a waiver of the right to
exercise the same in the event of any subsequent default.
Attorneys' Fees. All parties liable for the payment of this Note agree to
pay the Lender reasonable attorneys' fees and costs, whether or not an action be
brought, for the services of counsel employed after maturity or default to
collect this Note or any principal or interest due hereunder, or to protect the
security, if any, or enforce the performance of any other agreement contained in
this Note or in any instrument of security executed in connection with the Loan,
including costs and attorneys' fees on any appeal, or in any proceedings under
the National Bankruptcy Code or in any post judgment proceedings.
Notwithstanding anything contained in this Note, the instruments of security, or
any other documents executed in connection therewith to the contrary, the
Borrower hereby expressly waives its statutory right under Section 57.105(2) of
the Florida Statutes to receive attorneys' fees in any cause of action or other
litigation based in whole or in part, directly or indirectly, upon the foregoing
documents. Such waiver by the Borrower constitutes a material inducement for the
Lender to make the Loan to the Borrower.
Set Off. The Obligors shall have no right of set off against the Lender
under this Note or under any instruments securing this Note or executed in
connection with the Loan evidenced hereby. The Lender, however, shall have the
right, immediately and without further action by it, to set off against this
Note all money owed by the Lender in any capacity to each or any Obligor,
whether or not due.
Borrower. The Borrower warrants and represents to Lender that it is a
corporation duly formed, presently existing and in good standing under the laws
of the State of Florida.
Waiver of Jury Trial. Borrower hereby voluntarily and irrevocably waives
the right to a trial by jury in connection with any litigation, action or cause
of action arising out of or by virtue of: (i) this instrument; or (ii) any other
agreement or document executed or contemplated to be in connection with the Loan
evidenced or secured hereby, or incident hereto; or (iii) any course of conduct,
course of dealing, representation, statement or other action of any party in
connection with the Loan. The parties to the Loan have discussed this waiver,
have agreed that it is an essential and material part of their agreement
concerning the Loan, and that no officer or representative of Lender has the
authority to modify, orally or in writing, the terms of this paragraph. This
agreement shall be binding on the Borrower, and, if applicable, on all Obligors
as defined herein, and constitutes a material inducement for Lender entering
into the Loan transaction.
Florida Law. This Note is executed under seal and constitutes a contract
under the laws of the State of Florida, and shall be enforceable in a Court of
competent jurisdiction in that State, regardless of in which jurisdiction this
Note is being executed.
Signed for Identification
By:
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The Authorized Agent of Borrower
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Headings. The headings of the paragraphs contained in this Note are for
convenience of reference only and do not form a part hereof and in no way
modify, interpret or construe the meaning of the parties hereto.
Documentary Stamps. This instrument was made, executed and delivered
outside the State of Florida, and no Florida Documentary Stamps tax is due
hereon in accordance with F.A.C. 12B-4.053(35).
Identification. This Note consists of six (6) pages, all but the last of
which have been signed only for identification by Robert A. Smolinski, the
Authorized Agent of the Borrower, on behalf of the Borrower.
[Remainder of page intentionally left blank]
Signed for Identification
By:
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The Authorized Agent of Borrower
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THE UNDERSIGNED ACKNOWLEDGES THAT THE LOAN EVIDENCED HEREBY IS FOR
COMMERCIAL PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
Signed, sealed and delivered ABR INFORMATION SERVICES, INC.,
in the presence of: a Florida corporation
By:
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SIGNATURE Its Authorized Agent
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NAME LEGIBLY PRINTED, (CORPORATE SEAL)
TYPEWRITTEN OR STAMPED
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SIGNATURE
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NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
As to Borrower
STATE OF GEORGIA )
COUNTY OF )
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The foregoing instrument was acknowledged before me this _____ day of
__________, 1998, by ROBERT A. SMOLINSKI, the Authorized Agent of ABR
INFORMATION SERVICES, INC., a Florida corporation, on behalf of the corporation.
PERSONALLY KNOWN ________ OR PRODUCED IDENTIFICATION
TYPE OF IDENTIFICATION PROVIDED ____________________
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SIGNATURE
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NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
(SEAL)
NOTARY PUBLIC
My Commission Expires:
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LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is entered into as of the _________
day of __________________, 1998, by and between BARNETT BANK, N.A., a national
banking association (the "Lender"), ABR INFORMATION SERVICES, INC., a Florida
corporation (the "Borrower"), and ABR BENEFITS SERVICES, INC., a Florida
corporation and ABR PROPERTIES, INC., a Florida corporation (collectively the
"Guarantors") (the Borrower and the Guarantors will be sometimes collectively
referred to below as the "Borrower Group"), and is made in reference to the
following facts:
(A) On or about the date hereof, the Lender has made a revolving line of
credit loan to the Borrower in the original principal amount of TWENTY FIVE
MILLION AND NO/100 DOLLARS ($25,000,000.00) (the "Loan"). The Loan is evidenced
and secured, among other things, by the following:
(i) Revolving Line of Credit Note executed by the Borrower in favor
of the Lender in the original principal amount of the Loan (the "Note");
(ii) Agreement Not to Encumber executed by the Borrower in favor of
the Lender, and which will be recorded in the Public Records of Pinellas County,
Florida (the "Agreement Not to Encumber");
(iii) Negative Pledge Agreement executed by Borrower Group in favor
of Lender (the "Negative Pledge Agreement");
(iv) UCC-1 Financing Statement executed by Borrower Group, as
debtors, and Lender, as secured party (the "UCC");
(v) A Guaranty Agreement executed by the Guarantors in favor of the
Lender (the "Guaranty Agreement");
(vi) This Agreement being executed by the Lender and Borrower Group
(the "Loan Agreement"); and
(vii) Numerous other documents and instruments executed by the
Borrower, and, as applicable, Guarantors and/or Lender, in connection with the
Loan (collectively the "Other Documents").
The Agreement Not to Encumber, Negative Pledge Agreement, UCC, Guaranty
Agreement, Loan Agreement, and the Other Documents will be sometimes
collectively referred to below as the "Instruments of Security". The Note and
the Instruments of Security will be sometimes collectively referred to below as
the "Loan Documents".
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(B) The Lender has required the execution and delivery of this Agreement
by the Borrower Group as a condition to making the Loan to the Borrower, and the
Borrower Group is agreeable to such.
NOW THEREFORE, for and in consideration of the mutual covenants and
conditions contained herein and other valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties covenant and agree as
follows:
ARTICLE I - INTRODUCTORY PROVISIONS
1.1 Recitals. The statements contained in the recitals of fact set
forth above (the "Recitals") are true and correct, and the Recitals by this
reference are made a part of this Agreement.
1.2 Exhibits. All exhibits attached to this Agreement are by this
reference incorporated in and made a part hereof.
1.3 Abbreviations and Definitions. The following abbreviations and
definitions will be used for purposes of this Agreement:
(a) The abbreviations for the parties set forth in the Preamble will
be used for purposes of this Agreement.
(b) The abbreviations and definitions set forth in the Recitals will
be used for purposes of this Agreement.
(c) "Advance" shall mean individually and collectively the proceeds
of the Loan disbursed from time to time by the Lender pursuant to Section 2.1
hereof.
(d) "Agreement" shall mean the Loan Agreement between the parties
set forth herein.
(e) "Applicable Interest Addition" shall mean for LIBOR Loans the
following: The amount of the Applicable Interest Addition shall be based on the
Borrower's Funded Debt to EBITDA Ratio (as defined below), and shall be
calculated as follows:
Funded Debt to
EBITDA Ratio Applicable Interest Addition
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</= .50 + 62.5 Basis Points
> .50 </= 1.00 + 100 Basis Points
> 1.00 </= 1.75 + 125 Basis Points
> 1.75 + 150 Basis Points
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(f) "Authorized Officers" shall mean James E. MacDougald, James P.
O'Drobinak, Robert A. Smolinski and Ross Wilt.
(g) "Banking Day" shall mean each day other than a Saturday, Sunday
or any holiday on which commercial banks in Jacksonville, Florida are closed for
business.
(h) "Base LIBOR Rate" shall mean with respect to any Interest Period
for any LIBOR Loan, the offered rate for deposits in United States dollars in
the London Interbank market for a one month period which appears on the Libor
Rate Reference Page as of 11:00 a.m. (London time) on the day that is two London
Banking Days preceding the first London Banking Day of the Interest Period. If
at least two such offered rates appear on the Libor Rate Reference Page, the
rate will be the arithmetic mean of such offered rates.
(i) "Base Rate" shall mean the interest rate announced or published
from time to time by Barnett Banks, N.A., as its "Prime Lending Rate" (which
interest rate is only a benchmark and is not necessarily the best or lowest rate
of interest charged to borrowers of Barnett Banks, N.A.).
(j) "Base Rate Loan" shall mean any Loan made by Lender whose
interest rate is based upon the Base Rate.
(k) "Cash Flow Coverage Ratio" shall mean the ratio of the
Borrower's EBITDA less cash taxes, divided by interest expense plus any
scheduled principal payments of long-term debt or capital leases, plus twenty
percent (20%) of the total indebtedness of the Loan outstanding from time to
time.
(l) "Default Rate" shall mean the highest rate of interest permitted
to be charged by Lender from time to time by applicable law.
(m) "Dollars" or the symbol "$" shall mean lawful money of the
United States of America.
(n) "EBITDA" shall mean the Borrower's consolidated income from
continuing operations and interest income (excluding one-time, non-cash
restructuring charges) plus consolidated depreciation and amortization. The
Borrower's EBITDA for purposes of calculating the interest rate and each
financial covenant contained in this Agreement shall be calculated for each
fiscal quarter of Borrower, such that no later than forty-five (45) days
following the end of every fiscal quarter of Borrower, Lender shall calculate
the Borrower's EBITDA in accordance with GAAP. Lender's calculation of
Borrower's EBITDA shall be presumed correct absent manifest error. The Lender
shall include the EBITDA of any entity acquired by the Borrower, as if such
entity had been owned by the Borrower for twelve (12) months prior to the
acquisition date.
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(o) "Events of Default" shall mean the events of default specified
in Article Ten of this Agreement, each of which shall be an "Event of Default".
(p) "Funded Debt to EBITDA Ratio" shall mean the ratio of the
Borrower's Funded Debt to EBITDA, determined by Lender as follows:
(i) Upon receipt by Lender of the Borrower's quarterly financial
statement as described in Subsection 3.1(b) below (a "Quarterly Financial"),
Lender shall calculate the Borrower's Funded Debt to EBITDA Ratio. Such ratio
shall be calculated by Lender in accordance with GAAP, and shall be presumed
correct absent manifest error.
(ii) Upon Lender's determination of the Funded Debt to EBITDA
Ratio as aforesaid, the Applicable Interest Addition shall be determined by
Lender and shall apply for the fiscal quarterly period following the fiscal
quarterly period described in the Second Quarterly Financial submitted by
Borrower to Lender. For example, and without limitation, the Borrower shall
provide to Lender a Quarterly Financial covering the period February 1, 1998
through April 30, 1998, which shall be provided to Lender no later than June 15,
1998. Based on the Lender's calculation of the Borrower's Funded Debt to EBITDA
Ratio for such Quarterly Financial, the Applicable Interest Addition for the
Loan shall be calculated as aforesaid and shall apply from the period of August
1, 1998 through October 31, 1998 (with similar calculations to apply in the
future during the term of the Loan). Should Borrower fail to timely submit a
Quarterly Financial to Lender, Lender shall be entitled to set the Applicable
Interest Addition at one hundred fifty (150) basis points.
(iii) The initial Applicable Interest Addition which shall cover
the period of time from the date hereof through and including August 1, 1998
shall be sixty-two and 50/100 (62.5) basis points.
(iv) Lastly, and notwithstanding anything set forth above to the
contrary, the Lender hereby agrees that the Applicable Interest Addition shall
be sixty-two and a half (62.5) basis points for each fiscal quarterly period, as
determined by Lender, that the Borrower's cash and cash equivalents (net of
customer deposits) plus total liquid investments at the fiscal quarter end, are
in excess of the average outstanding principal balance of the Loan for that same
fiscal quarterly period. Such determination shall be made by Lender based upon
the Quarterly Financials that are provided by Borrower to Lender, shall be
determined in accordance with GAAP, and shall be presumed correct absent
manifest error.
(q) "Funded Debt to Tangible Net Worth" shall mean the ratio of
Borrower's Funded Debt to its Tangible Net Worth, determined by Lender in
accordance with GAAP annually, and Lender's calculation of Borrower's Funded
Debt to Tangible Net Worth shall be presumed correct absent manifest error.
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(r) "Funded Debt" shall mean all indebtedness of Borrower for
borrowed money, letters of credit and guarantees that may be outstanding from
time to time (excluding non-recourse debts approved in writing by Lender).
(s) "GAAP" shall mean generally accepted accounting principles
consistently applied to the particular item.
(t) "Interest Period" shall mean: (i) with respect to a Base Rate
Loan, once the Base Rate is elected, until a new interest rate is determined by
Lender; and (ii) with respect to a LIBOR Loan, a one-month period.
(u) "Interest Rate Determination Date" shall mean each date for
calculating the LIBOR for purposes of determining the interest rate in respect
of an Interest Period. The Interest Rate Determination Date shall be the date
two (2) Banking Days prior to the first Banking Day of the related Interest
Period for a LIBOR Loan.
(v) "LIBOR" shall mean for the Interest Period for any LIBOR Loan,
the rate of interest determined pursuant to the following formula:
Base LIBOR Rate Applicable Interest
LIBOR = + Addition as set forth in
Section 1.3(e).
(w) "LIBOR Loan" shall mean any Loan made by the Lender and bearing
interest at rates determined by reference to LIBOR.
(x) "Libor Rate Reference Page" shall mean either (i) the Reuters
Screen LIBO Page, (ii) the Dow Jones Telerate Page 3750 or (iii) such other
nationally recognized source, as either may from time to time by used by Lender
in its sole discretion as a reference for determining any applicable Libor Rate.
(y) "London Banking Day" shall mean each day other than a Saturday,
a Sunday or any holiday on which commercial banks in London, England are closed
for business.
(z) "Obligations" shall mean, individually and collectively, the
payment and performance duties, obligations and liabilities of the Borrower to
the Lender, evidenced by the Note, together with all accrued but unpaid interest
thereon, and all other payment and performance, duties, obligations and
liabilities of the Borrower to the Lender, however and whenever incurred,
acquired or evidenced, whether primary or secondary, direct or indirect,
absolute or contingent, sole or joint and several, or due or to become due,
including, without limitation, all such duties, obligations and liabilities of
the Borrower to the Lender, under and pursuant to this Agreement, the Note and
the Loan Documents and all renewals, modifications or extensions of any thereof.
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(aa) "Person" shall mean any individual, joint venturer,
partnership, firm, corporation, trust, unincorporated organization or other
organization or entity, or a governmental body or any department or agency
thereof, and shall include both the singular and the plural.
(bb) "Principal Place of Business" shall mean the principal place
of business and the headquarters of the Borrower at which all of its records
are kept, currently at 34125 U.S. Highway 19, North, Palm Harbor, Florida
34684-2116.
(cc) "Property" shall mean the real property legally described on
Exhibit "A" attached hereto.
(dd) "Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be amended or
supplemented from time to time.
(ee) "Regulatory Change" shall mean any change effective after the
date of this Agreement in United States Federal or state laws or regulations
(including Regulation D and capital adequacy regulations) or foreign laws or
regulations or the adoption or making after such date of any interpretations,
directives or requests applying to a class of banks which includes the Lender,
under any United States Federal or state or foreign laws or regulations (whether
or not having the force of law) by any court or governmental or monetary
authority charged with the interpretation or administration thereof.
(ff) "Tangible Net Worth" shall mean the total of all assets
appearing on a balance sheet prepared in accordance with GAAP for the Borrower
after deducting therefrom (without duplication or deductions):
(i) any write-up in the book carrying value of any asset
resulting from a re-evaluation thereof subsequent to the date of the balance
sheet referred to above;
(ii) all reserves, including, but not limited to, reserves for
liabilities, fixed or contingent, deferred income taxes, obsolescence,
depletion, insurance and inventory valuation, which are not deducted from
assets;
(iii) the amount, if any, at which shares of stock of the
Borrower appears on the asset side of such balance sheet;
(iv) all indebtedness of the Borrower; and
(v) all goodwill, research and development, and other
intangible items of any kind appearing on the asset side of such balance sheet.
(gg) "Total Liabilities" or "Liabilities" shall mean all liabilities
and obligations of the Borrower, all as determined in accordance with GAAP.
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1.4 Accounting Terms. All accounting terms used herein shall be
construed in accordance with GAAP (unless such terms are specifically defined
otherwise herein) consistently applied and all financial data submitted pursuant
to this Agreement shall be prepared in accordance with GAAP. In the event of
ambiguities or changes in GAAP, the more conservative principle or
interpretation shall be used.
ARTICLE II - LOAN
2.1 Loan. On or about the date hereof, the Borrower has executed in
favor of Lender the Note, which evidences the Loan. The principal of the Note
that is disbursed by Lender to Borrower shall bear interest and be repaid in the
manner set forth in the Note and as set forth in this Article Two.
(a) Revolving Line of Credit. Borrower will request and Lender may
advance amounts at various times according to Borrower's needs in the manner and
for the purposes set forth in this Section 2.1. Amounts so advanced under the
Note shall be repaid by Borrower to Lender as provided in this Section 2.1 or in
the Note. Any such funds so advanced and repaid will be available for future
advances during the term of the Note, provided however, the aggregate of all
amounts advanced and outstanding and remaining unpaid from time to time shall in
no event exceed at any time the face amount of the Note or the amount set forth
in this Agreement.
(b) Purpose. The purpose of the Note is to provide working capital
for the support of Borrower's business, to fund improvements at the Borrower's
new premises in St. Petersburg, Florida, and for new acquisitions by Borrower.
The specific use of such Loan proceeds shall be determined by Borrower in its
discretion.
(c) Manner of Disbursement. Proceeds from the Note may be disbursed
at any time based upon the following conditions first occurring: (i) Borrower
shall submit a written Application for Disbursement in the form set forth in
Exhibit "B"; (ii) the amount of the requested disbursement, together with the
then outstanding principal balance of the Note, shall not exceed the face amount
of the Note; and (iii) the Loan Documents and this Agreement are fully current
and no default shall exist thereunder or hereunder. If such conditions are met,
then Lender shall deliver the Note proceeds from the Note so requested as
provided in this Section 2.1.
(d) Manner of Repayment. Accrued interest under the Note shall be
due and payable monthly to Lender. Principal shall be repaid in full upon the
earlier of: (i) the occurrence of an Event of Default; or (ii) the Maturity Date
set forth in the Note.
2.2 Interest on the Note. Except as provided in the next following
sentence, the Loan shall bear interest on the unpaid principal amount thereof
from the date made through maturity (whether by acceleration or otherwise) at a
rate determined by reference to LIBOR. From and after an Event of Default, or
the maturity or acceleration of the indebtedness of the Note, interest shall
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accrue on the unpaid principal balance of the Loan and on all accrued but unpaid
interest thereon, or on any defaulted payment, at the Default Rate. Such
interest shall continue to accrue until the date of payment in full of all
principal and accrued interest of the Loan.
2.3 Procedure for Advances. Advances shall be disbursed by the Lender on
behalf of the Borrower pursuant to this Section 2.3. Any Authorized Officer may
give the Lender written notice of a requested Advance hereunder, in the form of
an Application for Disbursement. The Lender shall have no duty or obligation to
verify or confirm the authority of any Authorized Officer of the Borrower
requesting any such Advance. Should there occur an Event of Default under this
Agreement, the Lender's commitment to advance funds to the Borrower shall
automatically terminate.
2.4 Method of Prepayment. The Borrower may at any time prepay all or any
part of the principal amount of the Loan outstanding; provided, however, that
each partial prepayment shall be applied to the reduction of the Loan, as the
Lender may, in its sole discretion, elect and, further provided, that on the
date of the prepayment, there shall exist no Event of Default. Each prepayment
other than full payment shall be made prior to 2:00 pm (Eastern Standard Time)
on the date of the prepayment, and shall be made on a Banking Day in immediately
available funds. Any prepayment made by the Borrower shall be applied first to
accrued interest and then to the principal balance of the Loan. Prepayment shall
either be made at the end of an Interest Period, or the Borrower shall pay a
prepayment fee equal to the excess, if any, of (i) the total amount of interest
that would have been paid on the prepayment amount under the remaining original
term of the Note from the date of prepayment to the end of the Interest Period
calculated at the interest rate provided for therein, (ii) less the amount that
would be yielded from investing the average of the prepayment amount that would
have been outstanding during such Interest Period from the date of prepayment if
said average amount was fully invested on the date of prepayment in United
States Treasury Notes maturing on the end of such Interest Period (or in the
event there are no U.S. Treasury Notes having such a maturity date, the U.S.
Treasury Note maturing on the day closest to the end of the Interest Period),
and trading in the secondary market in reasonable volume at a price within five
percent (5%) of par (or if none are so trading, then the average yield on those
trading closest to par). Notwithstanding the above, the amount of prepayment
charge shall never exceed the total amount of interest that would have been paid
under the original term of the Note had it not been prepaid.
In addition to the foregoing, if an Event of Default occurs under the Note
or related documents, and the maturity date of the Note shall be accelerated by
Lender, then a tender of payment by the Borrower, or by anyone on behalf of the
Borrower, of the amount necessary to pay all sums due hereunder made at any time
prior to the sale of the secured property pursuant to a judgment, shall
constitute an evasion of the payment and prepayment terms hereof. In such event,
any such payment to the extent permitted by law, shall include a fee equal to
the prepayment premium which would have been due in the event of a voluntary
prepayment.
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2.5 Application of Payments. All payments made on the Note shall be
applied in the manners set forth in the Note, however, should an Event of
Default occur, payments shall be applied first to any costs or expenses,
including attorneys fees and costs, that the Lender may incur in exercising its
rights under the Loan Documents, as the Lender may determine.
2.6. Special Provisions Governing LIBOR Loans. Notwithstanding other
provisions of this Agreement, the following provisions shall govern with respect
to LIBOR Loans as to the matters covered:
(a) Determination of Interest Rate. As soon as practicable after
11:00 a.m. (Eastern Standard Time) on the Interest Rate Determination Date,
Lender shall determine (which determination shall, absent manifest error, be
final, conclusive and binding upon all parties) the interest rate which shall
apply to any LIBOR Loan.
(b) Inability to Determine Rate. In the event Lender is unable to
determine LIBOR (e.g. LIBOR ceases to exist or is no longer a generally
available published rate), Lender shall have no obligation to offer LIBOR Loans
to the Borrower, and all indebtedness of the Loans will be immediately converted
to a Base Rate indebtedness.
(c) Illegality; Termination of Commitment. Notwithstanding any other
provisions of this Agreement, if any law, treaty, rule or regulation, or
determination of a court or other governmental authority, or any change therein
or in the interpretation or application thereof, shall make it unlawful or
impractical for Lender to make or maintain LIBOR Loans, as contemplated by this
Agreement, then, and in any such event, Lender shall give notice (by telephone
confirmed in writing) to Borrower of such determination, and the obligation of
Lender to make LIBOR Loans shall be terminated, and its obligation to maintain
its LIBOR Loans during such period shall be terminated at the earlier of the
termination of the Interest Period then in effect or when required by law.
Thereafter, and until such notice has been withdrawn by Lender, Lender shall
have no obligation to make LIBOR Loans, and any LIBOR Loans then outstanding
shall be converted into Base Rate Loans.
(d) LIBOR Loans After Default. After the occurrence of and during
the continuance of an Event of Default, Borrower may not elect to have a Loan be
made or continued as, or converted to a LIBOR Loan.
2.7 Additional Costs.
(a) Regulatory Changes. The Borrower shall promptly pay to the
Lender from time to time, such amounts as Lender may determine to be necessary
to compensate it for any reasonable costs incurred by Lender which it determines
are attributable to its making or maintaining any Loan, or any reduction in any
amount receivable by Lender under this Agreement including reductions in the
rate of return on a Lender's capital (such increases in costs and reductions in
amounts receivable and returns being herein called "Additional Costs"),
resulting from any
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Regulatory Change which: (i) changes the basis of taxation of any amounts
payable to Lender under this Agreement or the Note in respect of the Loan (other
than taxes imposed on the income of Lender by any jurisdiction in which the
Lender is located); or (ii) imposes or modifies any reserve, special deposit, or
similar requirements relating to any extensions of credit or other assets of, or
any deposits with or other liabilities of, Lender (other than any such reserve,
deposit or requirement reflected in the Base Rate or the LIBOR Rate, in each
case computed in accordance with the respective definitions of such terms set
forth in this Agreement); or (iii) has or would have the effect of reducing the
rate of return on capital of Lender to a level below that which the Lender could
have achieved but for such Regulatory Change (taking into consideration Lender's
policies with respect to capital adequacy); or (iv) imposes any other condition
affecting this Agreement or the Note (or any of such extensions of credit or
liabilities); provided that, if any such increased cost or reduction results
from any circumstances described in clauses (ii) through (iv) of this
subsection, the Borrower shall not be obligated to compensate Lender for such
increased costs or reductions occurring more than 180 days prior to the time
Lender first notifies the Borrower of such circumstances. Lender will notify
Borrower of any event occurring after the date hereof which would entitle it to
compensation pursuant to this Section 2.7 as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation.
(b) Termination of LIBOR Loans. Without limiting the effect of the
foregoing provisions of this Section 2.7, in the event that, by reason of any
Regulatory Change, Lender either (i) incurs Additional Costs based on or
measured by the excess above a specified level of the amount of a category of
deposits or other liabilities of the Lender which includes deposits by reference
to which the interest rate on LIBOR Loans is determined as provided in this
Agreement or a category of extensions of credit or other assets of Lender which
includes LIBOR Loans or (ii) becomes subject to restrictions on the amount of
such a category of liabilities or assets which it may hold, then, if the Lender
so elects, the obligation of Lender to make LIBOR Loans hereunder shall be
suspended until the date such Regulatory Change ceases to be in effect and the
Borrower shall, on the last day(s) of the then current Interest Period(s) for
outstanding LIBOR Loans, convert such LIBOR Loans into Base Rate Loans in
accordance with this Agreement.
2.9 Option to Term Out Loan. Provided the conditions precedent set forth
below are fulfilled to Lender's satisfaction, on the date exactly twenty-four
(24) months following the date hereof (the "Term Loan Option Date"), Borrower
shall have the option to convert the then-outstanding principal balance of the
Loan (the "Term Loan Principal") to a term loan, whereupon the Term Loan
Principal shall be repaid by Borrower to Lender in sixty (60) equal monthly
installments of principal and interest (collectively the "Term Loan Payments").
The amount of the Term Loan Payments will be calculated by Lender based upon:
(i) the Term Loan Principal amount; (ii) the interest rate determined by Lender
in its sole discretion; and (iii) a ten (10) year amortization from the Term
Loan Option Date, with a five (5) year balloon as aforesaid. Monthly principal
and interest payments will be made in sixty (60) equal to installments
commencing one (1) month following the Term Loan Option Date.
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Provided however, the Borrower may only exercise the option described
above upon fulfillment of all of the following conditions precedent, all of
which must be fulfilled to the satisfaction of Lender in its sole discretion:
(a) The Borrower shall provide written notice to Lender no later
than ninety (90) days prior to the Term Loan Option Date of its intention to
convert the Loan to a term loan.
(b) Included with the aforesaid notice, Borrower shall pay to Lender
a commitment fee equal to one-eighth percent (1/8%) of the amount of the Term
Loan Principal.
(c) At all times during the term of this Agreement, the Loan and all
Loan Documents must have been fully current with no defaults existing
thereunder.
(d) At the time of exercise of the option and at the closing of the
conversion of the Loan to the term loan (the "Term Loan Closing"), the Loan and
Loan Documents shall be fully current and no default shall exist thereunder.
(e) Prior to the Term Loan Closing, Lender shall have received, at
Borrower's expense, a Title Insurance Commitment acceptable to Lender in its
sole discretion indicating that, upon recordation of a Mortgage and other
instruments of security (as determined by Lender), and which will encumber the
Property more particularly described on Exhibit "B" attached hereto, Lender's
Mortgage will be the first and paramount lien on such Property as security for
the Term Loan Principal.
(f) The Borrower shall provide to Lender a survey of the Property,
acceptable to Lender in its sole and absolute discretion.
(g) Lender shall receive a UCC search and retrieval indicating that,
following the Term Loan Closing, Lender shall have the first and paramount lien
on all tangible and intangible personal property of Borrower including, without
limitation, that located on the Property.
(h) The Borrower shall pay all costs and expenses associated with
the Term Loan Closing including, without limitation, all recording and filing
fees (including documentary stamp tax, intangible tax), title insurance
premiums, Lender's attorneys' fees and costs, etc).
(i) No proceedings shall have been commenced by or against any of
the parties comprising the then-Borrower Group or their assets, either under
federal or state law or both, regarding insolvency, reorganization,
receivership, dissolution, or other arrangements with creditors.
(j) The Loan shall have had a payment history acceptable to Lender.
(k) Such other requirements as Lender may require in its sole
discretion.
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Provided all the foregoing conditions precedent are fulfilled as aforesaid, and
provided the Borrower timely complies with all of its obligations in the
paragraphs set forth above, the parties shall proceed to the Term Loan Closing
whereupon the Borrower shall execute such documents as Lender shall require in
its sole discretion, which shall include, but not be limited to, a Promissory
Note, First Mortgage, Assignment of Rents, Leases, Contracts, Accounts
Receivable, Accounts and Deposit Accounts, Security Agreement, UCC-1 Financing
Statements, Environmental Compliance and Indemnity Agreement, Agreement Waiving
Right to Jury Trial, Loan Agreement, Corporate Resolutions, Lien Affidavit, and
settlement statement.
ARTICLE III - ADDITIONAL LOAN PROVISIONS
3.1 Financial and Operational Disclosures.
(a) No later than one hundred twenty (120) days following the end of
each fiscal year end of Borrower during the term of the Loan, the Borrower shall
provide to Lender a copy of its 10-K report and Annual Report which shall
include a consolidated balance sheet and income statement of the Borrower and
all subsidiary guarantors on a consolidated basis, prepared in accordance with
GAAP on an audited basis, including statements of financial condition, income,
cash flow, and changes in shareholders' equity, and, if applicable, which is
under the same form provided to the Securities and Exchange Commission.
(b) No later than forty five (45) days following the end of each
fiscal quarter of the Borrower during the term of the Loan, Borrower shall
provide to Lender a copy of its 10-Q report of the Borrower and all subsidiary
guarantors, on a consolidated basis, including a consolidated balance sheet and
income statement which, if applicable, shall be in the form provided to the
Securities and Exchange Commission.
(c) Accompanying each financial statement of the Borrower submitted
to the Lender, Borrower shall also submit a calculation of each financial
covenant set forth in this Agreement and a certification by an officer of the
Borrower that the Borrower is in compliance with all terms and provisions of the
Loan Documents.
(d) Promptly upon becoming available to the public and in any event
no later than the date when released, Borrower shall provide to Lender copies of
all regular, periodic or special reports, schedules, and other materials,
financial or otherwise, which the Borrower or any of its subsidiary guarantors
may now or hereafter be required to file with the Securities and Exchange
Commission.
(e) Accompanying the annual audited financial statements provided to
Lender, Borrower shall also provide to Lender a copy of the management letter
(if prepared and available) prepared by the independent certified public
accounting firm which prepares the audited financial statements of Borrower.
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All of the foregoing reports must be provided timely by Borrower Group to Lender
in a form acceptable to Lender in its sole discretion. Failure of the Borrower
Group to provide any of the aforementioned financial documentation or
information to Lender within thirty (30) days of the date of providing of
written notice from Lender to the Borrower Group, specifying which financial
documentation or information has not been timely received by Lender, shall
constitute a default under all Loan Documents, and shall entitle Lender to
immediately accelerate the same, without further notice, grace or curative
period (notwithstanding anything contained herein or the Loan Documents to the
contrary).
3.2 New Subsidiaries. No later than ten (10) days following to the date
that Borrower shall acquire any new subsidiary (a "Subsidiary"), such new
Subsidiary must execute an unconditional guaranty of the Loan and Loan Documents
in favor of Lender, on a form acceptable to Lender.
ARTICLE IV - CROSS DEFAULT
The Borrower Group hereby acknowledges and agrees that a default under the
Loan Documents shall be and constitute a default under any and all other notes
or other evidence of indebtedness and any instruments of security therefor in
which an Obligor (which term shall mean and include the Borrower, each
Guarantor, each endorser, and all others who may become liable for all or any
part of the obligations evidenced and secured hereby) is liable and of which the
Lender is the holder. A default under any other notes or other evidence of
indebtedness or any instrument of security therefor in which an Obligor is
liable and the Lender is the holder shall constitute a default under the Loan
Documents.
ARTICLE V - USURY
It is not the intention of the parties hereto to make any agreement which
shall be violative of the laws of the State of Florida relating to usury. In no
event shall Borrower or Lender accept or charge any interest which, together
with any other charges upon the principal or any portion thereof, howsoever
computed, shall exceed the maximum legal rate of interest allowable under the
laws of the State of Florida. Should any provisions of this Agreement or any
existing or further Notes, Loan Agreements or any other agreements between the
parties be construed to require the payment of interest which, together with any
other charges upon the principal, or any portion thereof, exceeds such maximum
legal rate of interest, then any such excess shall be and is hereby expressly
waived, and shall be credited to the outstanding principal balance.
ARTICLE VI - REPRESENTATIONS AND WARRANTIES
The Borrower Group represents and warrants to the Lender as follows:
6.1 Organization, Standing, Corporate Power. The Borrower is a
corporation duly formed, validly existing and in good standing under the laws of
the State of Florida, and is duly
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authorized to do business in all other states in which it transacts business.
The Borrower has appropriate power and authority to own its properties and to
carry on its business as now being conducted, and the Borrower has appropriate
power and authority to execute and perform this Agreement and to deliver the
Note and all other documents, instruments and agreements provided for herein.
6.2 This Agreement. The execution and performance by the Borrower of
this Agreement, the borrowing hereunder, and the execution and delivery of the
Note and all other documents, instruments and agreements provided for herein (a)
have been duly authorized by all requisite corporate action; (b) will not
violate any provision of law or of the Borrower's Articles of Incorporation or
Bylaws as amended to the date hereof; and (c) will not violate or be in conflict
with, result in a breach of, or constitute a default under any indenture,
agreement and other instrument to which the Borrower is a party or by which it
or any of its properties is bound, or any order, writ, injunction or decree of
any court or governmental institution.
6.3 Litigation. There are no actions, suits or proceedings pending, or
to the knowledge of the Borrower, threatened against or adversely affecting the
Borrower at law or in equity or before or by any federal agency or
instrumentality, domestic or foreign, which involve any of the transactions
herein contemplated or the possibility of any judgment or liability which may
result in any material and adverse change in the business, operations,
prospects, property or assets, or in the condition, financial or otherwise, of
the Borrower, to the best of Borrower's knowledge. The Borrower is not in
default with respect to any judgment, order, writ, injunction, decree, rule or
regulation of any court, or federal, state, municipal or other governmental
department.
6.4 Financial Statements. The Borrower has heretofore furnished to the
Lender balance sheets, annual statements, and other financial information which
are, to the best of its knowledge, correct and complete and accurately present
the financial condition and the results of the operation of the Borrower as of
the dates thereof. Since the date of the last furnishing of said financial
statements, there has been no material adverse change in the financial condition
of the Borrower.
6.5 Taxes. The Borrower has filed or caused to be filed all federal and
state tax returns which, to the knowledge of the officers thereof, are required
to be filed, and has paid or caused to be paid all taxes as shown on said
returns or on any assessment received by it and not being contested in good
faith, to the extent that such taxes have become due.
6.6 Other Instruments. Except as reflected on the financial statements,
the Borrower is not a party to any agreement or instrument or subject to any
charter or other restrictions materially adversely affecting its business,
properties or assets, operations or condition, financial or otherwise.
6.7 Property and Assets. The Borrower has good and marketable title to
all the property and assets reflected on the most recent financial statement
furnished to the Lender, except
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such as have been disposed of in the ordinary course of business since the date
of said financial statement and all such property and assets are free and clear
of mortgages, pledges, liens, charges or other encumbrances, except as are
reflected on the financial statements.
6.8 Regulation U. No part of the proceeds of the Loan will be used to
purchase or carry, or to reduce or retire any loan incurred to purchase or
carry, any margin stocks (within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System) or to extend credit to others for the
purpose of purchasing or carrying any such margin stocks. The Borrower is not
engaged in the business of extending credit, nor is one of the Borrower's
important activities extending of credit, for the purpose of purchasing or
carrying such margin stocks. If requested by the Lender, the Borrower shall
furnish to the Lender in connection with any loan hereunder a statement in
conformity with the requirements of Federal Reserve Form U-1 referred to in said
regulation.
6.9 Continuity of Representations and Warranties. All of the foregoing
representations and warranties shall be true and correct at the time of the
making of each advance under the Loan pursuant to this Agreement and thereafter
until such Loan is paid in full as though made as of such time, and the Borrower
shall not then be in default hereunder, nor shall any event have occurred or
failed to occur that with the passage of time, or service of notice, or both,
would constitute a default. The Lender may consider the conditions specified in
this Section 6.9 to be fulfilled if no prior written notice to the contrary is
received from the Borrower.
ARTICLE VII - CONDITIONS PRECEDENT
The obligation of the Lender to make the Loan hereunder is subject to the
following conditions precedent:
(a) Representations and Warranties. In order to induce the Lender to
enter into this Agreement and to make the Loan herein provided for and
disbursements thereunder, the Borrower represents and warrants to the Lender
that on the date of each borrowing or disbursement hereunder, the
representations and warranties set forth in this Agreement shall be true and
correct on and as of the date of such borrowing or disbursement, with the same
force and effect as though such representations and warranties had been made on
and as of such date.
(b) No Default. At the time of each borrowing or disbursement
hereunder, the Borrower has observed and performed all of the terms, conditions
and agreements set forth herein on its part to be observed or performed and no
Event of Default specified below, nor any event which, upon notice or lapse of
time or both, would constitute such an Event of Default, shall have occurred and
be continuing.
(c) Officer's Certificate. If required by Lender, at the end of each
fiscal year, the Borrower shall deliver to the Lender a certificate signed by
the Treasurer, Controller or CFO of the Borrower dated such date confirming
that: no default exists hereunder, and no event which
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would become an Event of Default upon notice or lapse of time or both has
occurred and is then continuing; there is no litigation or proceeding pending or
threatened against or affecting the Borrower, the result of which might
substantially affect the financial condition, business or operations of the
Borrower; and there has been no materially adverse change in the financial
condition of the Borrower since the date of the latest financial statement of
Borrower submitted to the Lender.
(d) Financial Statements. All financial statements, information and
other data furnished by the Borrower to the Lender in connection with the
Borrower's application for credit hereunder are, in all material respects,
accurate and correct; the financial statements have been prepared in accordance
with generally accepted accounting practices and accurately represent the
financial condition of the Borrower; no materially adverse changes have occurred
since the date of said statements; and no liabilities, contingent or otherwise,
not shown on said financial statements exist.
(e) Liens and Encumbrances. The properties and assets of the
Borrower, real, personal and mixed, are not subject to any liens, encumbrances
or security interests or outstanding financing statements, whether filed or
unfiled, except for liens for taxes not yet due, and liens, encumbrances or
security interests on personal or real property as reflected in the Borrower's
audited financial statements submitted to Lender.
(f) Litigation. There are no actions, suits, proceedings or claims
pending or threatened against or affecting the Borrower, the result of which
might substantially affect the financial condition, business or operations of
the Borrower.
(g) Authority. This Agreement and the other Loan Documents are valid
and binding obligations of the Borrower.
ARTICLE VIII - AFFIRMATIVE COVENANTS
The Borrower Group covenants and agrees with the Lender that from the date
hereof and so long as any sums are outstanding or may be borrowed hereunder,
unless the Lender shall otherwise consent in writing delivered to the Borrower
Group, it will:
8.1 Corporate Existence. Do or cause to be done all things necessary to
preserve, renew and keep in full force and effect its corporate existence, and
all its rights, licenses, permits and franchises required at the date hereof, or
which may be required in the future conduct of its business, and comply with all
laws and regulations applicable to it that materially affect the Borrower, and
conduct and operate its business in the same lines and in substantially the same
manner in which presently conducted and operated (subject to changes in the
ordinary course of business), and at all times maintain, preserve and protect
all property used and useful in the conduct of its business, and maintain same
in good working order and condition.
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8.2 Insurance. Keep its insurable properties adequately insured at all
times by financially sound and reputable insurers, and maintain such insurance
to such extent and against such risks, including liability insurance, fire,
windstorm, and other risks insured against by extended coverage. Additionally,
Borrower shall maintain errors and omissions insurance in a minimum amount of
FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00), and Borrower shall notify
Lender within thirty (30) days if any claim of ONE HUNDRED THOUSAND AND NO/100
DOLLARS ($100,000.00) or more is paid.
8.3 Obligations and Taxes. Pay all indebtedness and obligations promptly
and in accordance with normal 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 properties or any part thereof; provided,
however, that the Borrower shall not be required to pay and discharge or cause
to be paid and discharged any such tax assessment, charge, levy or claim so long
as the validity thereof shall be contested in good faith by appropriate
proceedings and the Borrower shall set aside on its books adequate reserves with
respect to any such tax, assessment, charge, levy or claim so contested.
8.4 Financial Ratios. Borrower will maintain, at all times during the
term of the Loan:
(a) a minimum Cash Flow Coverage Ratio of 1.35 to 1.00.
(b) a maximum Funded Debt to EBITDA Ratio of 2.50 to 1.00.
(c) a maximum Funded Debt to Tangible Net Worth Ratio of 1.50 to 1.00.
All of the foregoing financial ratios will be determined by Lender from time to
time in accordance with GAAP as provided in this Agreement. The failure of
Borrower to achieve or maintain any of the aforementioned financial ratios shall
constitute a default under the Loan and all Loan Documents.
8.5 Notice of Default. Give prompt written notice to Lender of all
events of default under any of the terms and provisions of this Agreement, the
Note, or of any other agreement, contract, indenture, document or instrument
entered, or to be entered into by it; if applicable, changes in management,
litigation, and of any other matter which has resulted in, or might result in, a
materially adverse change in its financial condition or operation.
8.6 Records. Keep and maintain full and accurate accounts and records of
its operations according to GAAP and practices, and will permit Lender and its
designated officers, employees, agents and representatives, to have access
thereto and to make examination thereof at all reasonable times, to make audits,
and to inspect and otherwise check its properties, real, personal and mixed.
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8.7 Execution of Other Documents. Promptly, upon demand by Lender,
execute all such additional agreements, contracts, indentures, financing
statements, documents and instruments in connection with this Agreement as
Lender, in its sole discretion, may reasonably deem necessary.
8.8 Time Deposit. Maintain a twelve (12) month, annually renewable time
deposit with Lender in the minimum principal amount of TWO MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS ($2,500,000.00) at all times.
ARTICLE IX - NEGATIVE COVENANTS
The Borrower Group covenants and agrees with Lender that from the date
hereof and so long as any sums are outstanding or may be borrowed under the
Loans, unless the Lender shall otherwise consent in writing delivered to the
Borrower, it will not:
9.1. Indebtedness. Create or incur any indebtedness except in the
ordinary course of business, and will not incur, create, assume or permit to
exist any indebtedness or liability for borrowed money or any indebtedness
evidenced by notes, bonds, debentures or similar obligations, except for: (i)
the Note; (ii) purchase money security interests less than ONE MILLION, FIVE
HUNDRED THOUSAND AND NO/100 DOLLARS ($1,500,000.00) in the aggregate; (iii)
additional borrowings not greater than FIVE HUNDRED THOUSAND AND NO/100 DOLLARS
($500,000.00) in the aggregate; and (iv) through an acquisition transaction,
indebtedness of the acquired entity and/or liens on the assets of the entity
being acquired.
9.2 Acquisitions. Until such time as the Borrower's Liquid Assets equal
TEN MILLION AND NO/100 DOLLARS ($10,000,000.00) (net of customer deposit) or
less, Borrower shall not be required to obtain Lender's approval for an
acquisition of a third party's assets or business of any size, provided that
such acquisition will not cause the Borrower to be out of compliance with any of
the covenants or other provisions set forth in this Agreement. However, at such
time as the Borrower's Liquid Assets total less than TEN MILLION AND NO/100
DOLLARS ($10,000.000.00), Borrower must obtain Lender's prior written approval
for any acquisition as aforesaid. For purposes of this subsection, Lender shall
determine the meaning of the term "Liquid Assets" in its sole discretion.
9.3 Loans. Make any loans to any person, firm or corporation, nor pledge
credit in any manner, directly or indirectly, except in the ordinary course of
its business.
9.4 Liens. Incur, create, assume or permit to exist any mortgage,
pledge, lien, charge, security interest or other encumbrance of any nature
whatsoever on any property or assets now owned or hereafter acquired by the
Borrower, except to Lender, other than: (a) liens for taxes or assessments and
similar charges either: (i) not delinquent; or (ii) being contested in good
faith by appropriate proceedings and as to which the Borrower shall have set
aside on its books adequate reserves; (b) currently existing indebtedness
consented to in writing by Lender; (c) secondary liens
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that in the aggregate are less than or equal to FIVE HUNDRED THOUSAND AND NO/100
DOLLARS ($500,000.00); and (d) purchase money security interests that are less
than ONE MILLION FIVE HUNDRED THOUSAND AND NO/100 ($1,500,000.00) in the
aggregate.
9.5 Default Under Other Agreements or Contracts. Commit to do or fail to
commit to do, any act or thing which would constitute an event of default under
any of the terms or provisions of any other agreement, mortgage, contract,
indenture, document or instrument executed by it, except those that may be
contested in good faith, and would not, if settled unfavorably, materially and
adversely affect the financial condition of the Borrower.
9.6 Compliance with Law Generally. Be in violation of any law,
ordinance, governmental rules or regulations to which Borrower is subject, or
fail to obtain any licenses, permits, franchises or other governmental
authorizations necessary to the ownership of the properties of Borrower or to
the conduct of its business, which violation or failure to obtain might
materially adversely affect the business, prospects, profits, properties or
condition (financial or otherwise) of Borrower.
9.7 Ordinary Course of Business. Enter into any transaction except in
the ordinary course of business.
ARTICLE X - DEFAULTS AND REMEDIES
10.1 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrences shall be voluntary or involuntary, or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court, or any order, rule or regulation of any
administrative or governmental body), then Lender shall be entitled to the
remedies set forth in Section 10.2 of this Agreement. The Events of Default
shall include, but not be limited to, the following:
(a) Any representation or warranty made herein or in any report,
certificate, financial statement or other instrument furnished in connection
with this Agreement, or the borrowing hereunder shall prove to be false or
misleading in any material respect;
(b) Default shall occur in the payment of interest or principal on
any indebtedness referred to herein, including the Note, when and as the same
shall become due and payable, whether at the due date thereof or by acceleration
or otherwise, or failure of the Borrower to make payment of principal or
interest on any other obligation for borrowed money beyond any period of grace
provided with respect thereto, or in the performance of any other agreement,
term or condition contained in any agreement under which any such obligation is
created, if the effect of such default is to cause or permit the holder or
holders of such obligation to accelerate the maturity thereof;
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(c) Any default shall occur in the due observance or performance of
any covenant, agreement or other provision of this Agreement or the Instruments
of Security referred to above other than for the payment of money;
(d) Any of the Borrower Group shall: (i) apply for or consent to the
appointment of a receiver, trustee in bankruptcy for benefit of creditors, or
liquidator of it or any of its property; (ii) admit in writing its inability to
pay its debts as they mature; (iii) make a general assignment for the benefit of
creditors; (iv) be adjudicated a bankrupt or insolvent; (v) file a voluntary
petition in bankruptcy, or a petition or an answer seeking reorganization or an
arrangement with creditors, or seeking to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or liquidation law
or statute or an answer admitting an act of bankruptcy alleged in a petition
filed against it in any proceeding under any such law; or (vi) take any action
for the purposes of effecting any of the foregoing;
(e) An order, judgment or decree shall be entered against the
Borrower with the application, approval or consent of the Borrower by any court
of competent jurisdiction, approving a petition seeking its reorganization or
appointing a receiver, trustee or liquidator of the Borrower, or of all or a
substantial part of the assets thereof, and such order, judgement or decree
shall continue unstayed and in effect for any period of sixty (60) days from the
date of entry thereof;
(f) Final judgments for the payment of money in excess of an
aggregate of ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00), excluding
claims covered by insurance, shall be rendered against the Borrower and the same
shall remain undischarged for a period of thirty (30) consecutive days during
which execution shall not be effectively stayed, provided that a judgment shall
be deemed "final" only when the time for appeal shall have expired without an
appeal having been claimed, or all appeals and further review claimed to have
been determined adversely to the Borrower; or
(g) Default by the Borrower in the terms and provisions of any
mortgages on its facilities which are not cured within any applicable grace
period.
10.2 Remedy. Upon the occurrence of any such Event of Default which is
not cured within thirty (30) days, Lender may, at its option, declare all
indebtedness of principal and interest due and payable, whereupon the Note
(notwithstanding any provisions hereof) shall be immediately due and payable,
and Lender shall have and may exercise from time to time any and all rights and
remedies available to it under any applicable law; and Borrower shall promptly
pay all costs of Lender of collection of any and all liabilities, and
enforcement of rights hereunder, including reasonable attorneys' fees and
expenses. All rights, powers and remedies contained herein or in any other
agreement, instrument or document executed in connection herewith are
cumulative.
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ARTICLE XI - MISCELLANEOUS
11.1 Notices. Any notice shall be conclusively deemed to have been
received by the Borrower and be effective on the day on which delivered to the
Borrower, or if sent by registered or certified mail, addressed to Borrower at
said address, on the second business day after the day on which the return
receipt indicates the notice was delivered.
11.2 Survival of Representations. All covenants, agreements,
representations and warranties made herein and in the certificates delivered
pursuant hereto shall survive the making by Lender of the Loan herein
contemplated and the execution and delivery to Lender of the Note evidencing
such Loan and shall continue in full force and effect so long as any
indebtedness created hereunder is outstanding and unpaid. All covenants and
agreements by or on behalf of either party which are contained or incorporated
in this Agreement shall bind and inure to the benefit of the successors and
assigns of both parties hereto.
11.3 Effect of Delay. Neither any failure nor any delay on the part of
Lender in exercising any right, power or privilege hereunder or under the Note
shall operate as a waiver thereof, nor shall a single or partial exercise
thereof preclude any other or further exercise or the exercise of any other
right, power or privilege.
11.4 Expenses. The Borrower will pay all out-of-pocket expenses
reasonably incurred by Lender in connection with the preparation of this
Agreement, the borrowings hereunder, and the enforcement of the rights of Lender
in connection with this Agreement, or with the Loan made or the Note issued
hereunder, including but not limited to the fees of and expenses of counsel for
Lender.
11.5 Modification and Waivers. No modification or waiver of any provision
of this Agreement or of the Note nor consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be in writing,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. No notice to or demand on the Borrower in
any case shall thereby entitle the Borrower to any other or further notice or
demand in the same, similar or other circumstances.
11.6 Business Day. Should any installment on the Note become due and
payable on other than a business day of the Lender, the maturity thereof shall
be extended to the next succeeding business day with interest on the principal
amount thereof at the rate set forth herein.
11.7 Remedies Cumulative. Any rights or remedies of the Lender hereunder
or under the Note, or any other security agreement or writing shall be
cumulative and in addition to every other right or remedy contained therein or
herein, whether now existing or hereafter at law or in equity or by statute or
otherwise.
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11.8 Binding Agreement. This Agreement shall be binding upon Borrower and
its successors and assigns and the terms hereof shall inure to the benefit of
Lender and its successors and assigns.
11.9 Exhibits. All references to "Exhibits" contained herein are
references to exhibits attached to the Agreement, the terms and conditions of
which are made a part hereof for all purposes, the same as if set forth herein
verbatim.
11.10 Number and Gender of Words. Whenever herein the singular number is
used, the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate.
11.11 Captions. The captions, headings, and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit, amplify,
or modify the terms and provisions hereof.
11.12 Invalid Provisions. If any provision of this Agreement is held to be
illegal, invalid, or unenforceable under present or future laws effective during
the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part.
11.13 All Loans One Loan. All loans and/or advances made hereunder shall
constitute one loan and the obligations of such loans and/or advances shall
constitute one obligation.
11.14 Governing Law. All documents executed pursuant to the transactions
contemplated herein, including, without limitation, this Agreement and each of
the Loan Documents, shall be deemed to be contracts made under, and for all
purposes shall be construed in accordance with, the internal laws and judicial
decisions of the State of Florida even though executed outside thereof. The
Borrower hereby submits to the jurisdiction and venue of the state and federal
courts of Florida for the purposes of resolving disputes hereunder or for the
purposes of collection.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above set forth.
Signed, sealed and delivered BARNETT BANK, N.A., a national
in the presence of: banking association
By:
- ------------------------------ -------------------------------
SIGNATURE Its President
------------
- ------------------------------
NAME LEGIBLY PRINTED, (CORPORATE SEAL)
TYPEWRITTEN OR STAMPED
- ------------------------------
SIGNATURE
- ------------------------------
NAME LEGIBLY PRINTED
TYPEWRITTEN OR STAMPED
As to Lender
ABR INFORMATION SERVICES, INC.,
a Florida corporation
By:
- ------------------------------ -------------------------------
SIGNATURE Its Authorized Agent
- ------------------------------
NAME LEGIBLY PRINTED, (CORPORATE SEAL)
TYPEWRITTEN OR STAMPED
- ------------------------------
SIGNATURE
- ------------------------------
NAME LEGIBLY PRINTED
TYPEWRITTEN OR STAMPED
As to Borrower
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ABR BENEFITS SERVICES, INC., a
Florida corporation
By:
- ------------------------------ -------------------------------
SIGNATURE Its Authorized Agent
- ------------------------------
NAME LEGIBLY PRINTED, (CORPORATE SEAL)
TYPEWRITTEN OR STAMPED
- ------------------------------
SIGNATURE
- ------------------------------
NAME LEGIBLY PRINTED
TYPEWRITTEN OR STAMPED
As to Guarantor
ABR PROPERTIES, INC., a Florida
corporation
By:
- ------------------------------ -------------------------------
SIGNATURE Its Authorized Agent
- ------------------------------
NAME LEGIBLY PRINTED, (CORPORATE SEAL)
TYPEWRITTEN OR STAMPED
- ------------------------------
SIGNATURE
- ------------------------------
NAME LEGIBLY PRINTED
TYPEWRITTEN OR STAMPED
As to Guarantor
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STATE OF GEORGIA )
COUNTY OF )
------------------
The foregoing instrument was acknowledged before me this ________ day of
______________, 1998, by ____________________________, the _______ President of
BARNETT BANK, N.A., a national banking association, on behalf of the
association.
PERSONALLY KNOWN ________ OR PRODUCED IDENTIFICATION
TYPE OF IDENTIFICATION PROVIDED ____________________
-------------------------------
SIGNATURE
-------------------------------
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
(SEAL) NOTARY PUBLIC
My Commission Expires:
STATE OF GEORGIA )
COUNTY OF )
------------------
The foregoing instrument was acknowledged before me this ________ day of
______________, 1998, by ROBERT A. SMOLINSKI, the Authorized Agent of ABR
INFORMATION SERVICES, INC., a Florida corporation, on behalf of the corporation.
PERSONALLY KNOWN ________ OR PRODUCED IDENTIFICATION
TYPE OF IDENTIFICATION PROVIDED ____________________
-------------------------------
SIGNATURE
-------------------------------
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
(SEAL) NOTARY PUBLIC
My Commission Expires:
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32
STATE OF GEORGIA )
COUNTY OF )
------------------
The foregoing instrument was acknowledged before me this ________ day of
______________, 1998, by ROBERT A. SMOLINSKI, Authorized Agent of ABR BENEFITS
SERVICES, INC., a Florida corporation, on behalf of the corporation.
PERSONALLY KNOWN ________ OR PRODUCED IDENTIFICATION
TYPE OF IDENTIFICATION PROVIDED ____________________
-------------------------------
SIGNATURE
-------------------------------
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
(SEAL) NOTARY PUBLIC
My Commission Expires:
STATE OF GEORGIA )
COUNTY OF )
------------------
The foregoing instrument was acknowledged before me this ________ day of
______________, 1998, by ROBERT A. SMOLINSKI, the Authorized Agent of ABR
PROPERTIES, INC., a Florida corporation, on behalf of the corporation.
PERSONALLY KNOWN ________ OR PRODUCED IDENTIFICATION
TYPE OF IDENTIFICATION PROVIDED ____________________
-------------------------------
SIGNATURE
-------------------------------
NAME LEGIBLY PRINTED,
TYPEWRITTEN OR STAMPED
(SEAL) NOTARY PUBLIC
My Commission Expires:
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
34
EXHIBIT "B"
APPLICATION FOR DISBURSEMENT
ABR INFORMATION SERVICES, INC., a Florida corporation (the "Borrower")
hereby applies to BARNETT BANK, N.A., a national banking association (the
"Lender"), to disburse $______________ to Borrower in accordance with the
revolving line of credit loan extended by Lender to Borrower on or about
_______________ , 1998, in the maximum principal amount of TWENTY FIVE MILLION
AND NO/100 DOLLARS ($25,000,000.00). All defined terms contained in the Loan
Agreement to which this Exhibit "A" is attached are incorporated herein by this
reference.
As an inducement for Lender to make such disbursement to Borrower,
Borrower warrants and represents to Lender that: (i) such Loan and all
instruments evidencing, securing or otherwise executed in connection with such
Loan are fully current and no default exists thereunder; (ii) the warranties,
representations, covenants and agreements of Borrower Group in the Loan
Agreement executed by Borrower Group and Lender are true and correct and are in
full force and effect; (iii) there is no litigation or proceeding pending or
threatened against or affecting the Borrower, the result of which might
substantially affect the financial condition, business or operations of the
Borrower; (iv) there has been no materially adverse change in the financial
condition of the Borrower Group since the date of the latest financial statement
of Borrower Group submitted to Lender; and (v) the amount of the disbursement
requested, together with the outstanding principal balance of the Loan, will not
exceed the face amount of the Loan.
Dated, this _______ day of ______________________, 1998.
ABR INFORMATION SERVICES, INC.,
a Florida corporation
By:
---------------------------------
Its Authorized Agent
(CORPORATE SEAL)