EXHIBIT 10.12
REVOLVING LINE OF CREDIT PROMISSORY NOTE
$2,500,000.00 December 15, 2000
Made, executed and delivered
in International Waters
FOR VALVE RECEIVED, the undersigned, EAGLE AMALGAMATED SERVICES, INC.
and SAC-I, INC. (hereafter collectively the "Borrower"), hereby jointly and
severally promise to pay to the order of FLORIDA ENGINEERED CONSTRUCTION
PRODUCTS CORPORATION (hereinafter the "Lender"), in such coin or currency of the
United States which shall be legal tender in payment of all debts and dues,
public and private, at the time of payment, the principal sum of Two Million
Five Hundred Thousand and 00/100 Dollars ($2,500,000.00), or so much as may be
outstanding, together with interest from and after the date hereof on the unpaid
principal balance outstanding at the rate of ten percent (10%). All principal,
together with interest, shall be payable in full upon demand.
Borrower may prepay this Revolving Line of Credit Promissory Note (the
"Note") in whole or in part at any time during the term hereof, provided that
any such payment shall first be applied to any charges and costs then due and
payable hereunder, then to interest, and finally to principal.
The occurrence of any default by Borrower hereunder shall entitle
Lender, at its option, to declare the then outstanding principal balance and
accrued interest hereof to be, and the same shall thereupon become, immediately
due and payable without notice to or demand upon Borrower, all of which Borrower
hereby expressly waives. If this Note is collected by or through an attorney at
law, then Borrower shall be obligated to pay, in addition to the principal
balance and accrued interest hereof, reasonable attorneys' fees and court costs
at trial, on any appeal, and in any bankruptcy proceedings.
Time is of the essence of this Note. To the fullest extent permitted by
applicable law, Borrower, for itself and its legal representatives, successors
and assigns, expressly waives presentment, demand, protest, notice of dishonor,
notice of non-payment, notice of maturity, notice of protest, presentment for
the purpose of accelerating maturity, diligence in collection, and the benefit
of any exemption or insolvency laws.
Wherever possible each provision of this Note shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision of this Note shall be prohibited or invalid under applicable law, such
provision shall be ineffective to the extent of such prohibition or invalidity
without invalidating the remainder of such provisions of this Note. No delay or
failure on the part of Lender in the exercise of any right or remedy hereunder
shall operate as a waiver thereof, nor as an acquiescence in any default, nor
shall any single or partial exercise by Lender of any right or remedy preclude
any other right or remedy.
This document has been made, executed and delivered in international
waters. This Note shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida, regardless of where made, executed or
delivered, and is intended to take effect as an instrument under seal,
constitutes a contract under the laws of the State of Florida, and shall be
enforceable in a court of competent jurisdiction in said State, without regard
to the place in which this Note is made, executed and delivered.
This Note evidences borrowings in the principal amount of Two Million
Five Hundred Thousand and 00/100 Dollars ($2,500,000.00) but notwithstanding
such expression, the actual indebtedness from time to time evidenced hereby
shall be the sum of all advances made to the undersigned, less the aggregate
amount of all principal repayments made by the undersigned; it being the intent
and the purpose of this Note to provide a revolving line of credit which the
undersigned may draw against and which the holder of this Note will advance from
time to time, and which the undersigned may repay in whole or in part from time
to time and again draw against, so that the principal amount outstanding
hereunder may fluctuate in accordance with such advances and repayments.
Provided however, the aggregate principal amount outstanding under this Note
shall not at any time exceed the principal sum of $2,500,000.00. Anything herein
to the contrary notwithstanding the right of the undersigned to request advances
hereunder is subject to and limited by any terms and conditions of the Agreement
that may be established by Lender from time to time at its sole discretion.
IN WITNESS WHEREOF, Borrower has caused this Note to be duly made,
executed and delivered on the date first above written.
"BORROWER"
EAGLE AMALGAMATED SERVICES, INC.
By: /s/ PHILIP RAPPA
----------------------------
Secretary
(Corporate Seal)
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United States Territorial Waters or International Waters:
Latitude N 27 47.52
Longitude W 83 02.01
The foregoing instrument was acknowledged before me, ______, this 15th
day of Dec. 2000, on a vessel of which I am the Captain located at Latitude N 27
47.52 and Longitude W 83 01.01, which is located outside the territorial limits
of the State of Florida, by Philip M. Rappa as Secretary of Eagle Amalgamated
Services, Inc., who is either ___ personally known to me or [X] has produced a
Florida driver's license as identification.
Captain's Signature: /s/ DAVID S. COOVER
-----------------------
Print Name: DAVID COOVER
-----------------------
License Number: 306936
-----------------------
SAC-I, INC.
By: /s/ PHILIP RAPPA
----------------------------------------
Secretary
(Corporate Seal)
United States Territorial Waters or International Waters:
Latitude N 27 47.52
Longitude W 83 02.01
The foregoing instrument was acknowledged before me, ______, this 15th
day of Dec. 2000, on a vessel of which I am the Captain located at Latitude N 27
47.52 and Longitude W 83 02.01, which is located outside the territorial limits
of the State of Florida, by Philip M. Rappa as Secretary of JAC-I, Inc. who is
either ____ personally known to me or [X] has produced a Florida driver's
license as identification.
Captain's Signature: /s/ DAVID S. COOVER
-------------------
Print Name: DAVID S. COOVER
-------------------
License Number: 306936
-------------------
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SECURITY AGREEMENT
1. DATE. December 15, 2000
2. PARTIES. The parties to this Agreement are:
Debtors: EAGLE AMALGAMATED SERVICES, INC.
and
SAC-I, INC.
Secured Party: FLORIDA ENGINEERED CONSTRUCTION
PRODUCTS CORPORATION
3. GRANT OF SECURITY INTEREST. The Debtors hereby grant to the
Secured Party a security interest in the following Collateral to secure the
payment and performance of the obligations set out in this Agreement.
4. COLLATERAL. The property serving as Collateral and subject to
the above security interest are all furniture, fixtures, machinery, equipment,
accounts receivable, and causes of action including but not limited to all
accounts receivable and causes of action arising out of the Memphis Convention
Center Project, including all claims which have been or may be asserted in that
certain lawsuit styled EAGLE AMALGAMATED SERVICES, INC. V. ENGINEERED
DEMOLITION, INC., ET AL., pending in the Circuit Court of Shelby County,
Tennessee, for the Thirteenth Judicial District at Memphis, Case No.
CT-005005-00, Division 4.
5. OBLIGATIONS OF DEBTORS. The obligations of the Debtors that
are subject to this Security Agreement are the repayment of that certain
Revolving Line of Credit Promissory Note ("Promissory Note") dated December 15,
2000, in the principal amount of Two Million Five Hundred Thousand and 00/100
Dollars ($2,500,000.00) from the Debtors in favor of Secured Party, the terms
and conditions of such a Promissory Note being expressly incorporated herein. A
copy of said Promissory Note is attached hereto as Exhibit "B".
6. WARRANTIES AND COMMITMENTS. Debtors hereby warrant and agree
to the following:
(a) TITLE. The Debtors are the owners with the full right
and interest in the Collateral that is subject to
this Agreement, which is free and clear of any and
all liens, claims, encumbrances, and the like, with
the exception of any liens or encumbrances which have
been disclosed to Secured Party. The Debtors have
full authority to use the same as Collateral and
agree to defend the Collateral against all other
persons who, at any time, may claim an interest in
it.
(b) NEGATIVE PLEDGE. The Debtors agree that during the
course of this Agreement and as long as any
obligation that is subject to this Agreement remains
outstanding the Debtors will not grant a security
interest in the Collateral
subject to this Agreement to any person or entity
without the prior written consent of the Secured
Party.
(c) LIENS AND ENCUMBRANCES. The Debtors agree that during
the course of this Agreement and as long as any
indebtedness or other obligation that is subject to
this Agreement remains outstanding the Debtors will
keep the Collateral free from any and all liens,
encumbrances, and the like.
(d) ASSIGNMENT OF COLLATERAL. The Debtors will not
assign, transfer, discount, sell, offer for sale, or
otherwise dispose of the Collateral or any interest
in the Collateral save as provided in this Security
Agreement without prior written consent of the
Secured Party.
(e) TAXES. The Debtors agree to pay all taxes and
assessments on the Collateral as required and when
due. Should the Debtors fail to do so, the Secured
Party, although not required to do so, may, at its
sole option, pay or discharge the same. Any such
payment shall become an obligation of the Debtors
which is secured by the collateral to this Agreement.
(f) CORPORATE AUTHORITY. The Corporate Debtors, warrant
that:
(i) They are duly authorized and existing under
the laws of the State of Florida.
(ii) They are qualified and in good standing in
all states in which they are doing business.
(iii) The execution and performance of this
Agreement:
(1) Are within the Debtors' corporate
powers;
(2) Have been duly authorized; and
(3) Are not in contravention of any law
or the Debtors' charter, or any
agreement or undertaking of which
the Debtors are a party or by which
it is bound.
7. FINANCING STATEMENTS AND OTHER DOCUMENTS. The Debtors agree to
execute one or more Financing Statements as determined by Secured Party and in a
form satisfactory to the Secured Party, and Secured Party is authorized to file
Financing Statements in any location deemed necessary or advisable to perfect
the Secured Party's security interest in the Collateral or proceeds. The Debtors
expressly agree to sign such Financing Statements on request of the Secured
Party.
The Debtors also agree to cooperate fully with the Secured Party in
executing additional
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instruments, documents, financing statements, amendments to financing
statements, and the like as may be deemed necessary or advisable by the Secured
Party in order to maintain and continue the security interest created by this
Security Agreement.
The Debtors agree that a carbon, photographic or other reproduction of
a Financing Statement is sufficient as a financing statement under this
Agreement.
8. REPORTS, INSPECTIONS AND THE LIKE.
(a) The Debtors agree to the examination, auditing, and
inspection of their books and records from time to
time by the Secured Party, its assigns, or its agents
as may be deemed necessary or advisable by the
Secured Party in the protection of its interests
under this Agreement. The Debtors agree to cooperate
fully in this matter and further agree to the making
of extracts and copies as well as to the verification
of all accounts by the Secured Party or its agents,
which includes but is not limited to the contracting
of account debtors.
(b) The Debtors will furnish on request and from time to
time to the Secured Party or its assigns trial
balances on aged accounts; statements of accounts or
commissions with customers or insurance carriers; and
certified financial statements, including but not
limited to, balance sheet and profit and loss
statements, together with accountant's comments.
(c) The Debtors will promptly inform the Secured Party or
its assigns of any change in directors, officers or
key employees.
(d) The Debtors will cooperate fully with the Secured
Party or its assigns in the furnishing of such
assignments, schedules, documents and the like as
they may deem necessary or advisable to the creation,
perfection, maintenance or protection of their
interest in the Collateral subject to this Agreement.
9. COLLECTIONS.
(a) The Debtors shall collect the accounts and other
obligations serving as Collateral or proceeds under
this Agreement and shall do so at the Debtors' own
expense until such right of collection is expressly
revoked by the Secured Party. Such revocation may be
either prior or subsequent to default.
(b) The secured Party may at any time and from time to
time, whether prior or subsequent to default:
(i) Notify any account Debtors or obligor of the
existence of this Agreement; and
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(ii) Direct such party to henceforth make payment
directly to the Secured Party of any and all
sums then due to become due to Debtors.
Upon such notice and demand, the Secured Party's receipt of any payment
shall operate as payment from the Debtors and release of any amount so paid.
(c) The Secured Party is authorized to endorse in the
name of the Debtors any item of Collateral or
proceeds subject to this Agreement, however received.
(d) The Secured party may, at the Debtors' expense,
enforce collection by suit or otherwise and may do so
either in its own name or in the names of the
Debtors, of any item of Collateral or proceeds
subject to this Agreement. This shall include, but
not be limited to, the right to compromise, extend or
renew any indebtedness or to surrender, release,
exchange, sell or discount all or any part thereof.
10. DEFAULT. It is agreed that the following events shall
constitute a default under this Agreement:
(a) NON-PAYMENT. Any failure of the Debtors to pay when
due any obligation secured by this Agreement shall
constitute a default. This includes, but is not
limited to, any failure to pay principal or interest
when due, failure to pay taxes and failure to timely
pay any note or other document evidencing obligations
contained in this Agreement.
(b) NONPERFORMANCE. Any failure of the Debtors, or any
one of them, to perform or observe fully and in a
satisfactory manner the terms of this Agreement shall
constitute a default.
(c) WARRANTIES AND REPRESENTATIONS THAT PROVE FALSE. Any
warranty or representation made to the Secured Party
in order to induce the extension of credit to the
Debtors, whether made by the Debtors, or any one of
them, or by others on behalf of the Debtors,
including agents, employees, sureties, guarantor,
consignors and the like and whether such
representations are contained in this Agreement or in
related materials, such as financial guaranties, or
in any financial instrument, including, without
limitation, the Promissory Note executed in
conjunction with this Agreement, if incorrect in any
material respect shall operate as a default under
this Agreement.
(d) LEVY AND ATTACHMENTS. Seizure, attachment or levy on
any property of the Debtors, or any of them, whether
or not such property is covered by this Agreement,
shall operate as a default under this Agreement.
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(e) INSOLVENCY AND THE LIKE. It shall operate as a
default under this Agreement if for any reason:
(i) The Debtors become insolvent;
(ii) The Debtors become subject to any proceeding
under the bankruptcy or insolvency laws,
including an assignment for the benefit of
creditors; or
(iii) The Debtors have their property placed under
the custody of a receiver or trustee.
(f) ALTERATION OF DEBTORS' OPERATING CONDITIONS.
Dissolution or any other termination of the existence
of the Debtors or any forfeiture of their right to do
business, as well as merger, consolidation, or the
like with another, shall operate as a default under
this Agreement.
(g) UNAUTHORIZED USE OF COLLATERAL OR PROCEEDS. The
assignment, sale, discount, transfer or use of the
Collateral or its proceeds, except as authorized in
this Agreement shall operate as a default under this
Agreement.
11. ACCELERATE ON DEFAULT. In the event of any default under this
Agreement, the entire indebtedness secured by the Agreement shall become
immediately due and payable.
12. ACCELERATE ON INSECURITY. In the event the Secured Party shall deem
itself insecure, the Secured Party may, at its option, declare the entire
indebtedness secured by this Agreement immediately due and payable. Insecurity
is defined to mean a good faith belief that the prospect of payment or
performance as called for by this Agreement has become impaired.
13. SECURED PARTY'S REMEDIES. On default or acceleration, the
Secured Party shall have the following rights and remedies, which are cumulative
in nature and are immediately available to the Secured party:
(a) All rights and remedies provided by law, including
but not limited to, those provided by the Uniform
Commercial Code, especially those provided in Part 5
of Article 9;
(b) All rights and remedies provided in this Agreement;
(c) All rights and remedies provided in the Promissory
Note secured by this Agreement; and
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(d) All rights and remedies provided in any other
applicable security agreement.
Among those rights that are specifically included:
(i) RIGHT OF DIRECT COLLECTION. The Secured
Party may, at its option, notify any account
Debtors of the Debtors or any obligor on any
obligation payable to the Debtors and
serving as Collateral for this Agreement to
make payment directly to the Secured Party,
and the Debtors agree to cooperate fully in
executing any instruments or documentation
deemed necessary by Secured Party in the
exercise of such right.
(ii) RIGHT TO CONTROL PROCEEDS. The Secured Party
may, at its option, take control of any and
all proceeds from such Direct Collection and
apply all "Net Proceeds" to any outstanding
obligations of Debtors hereunder or under
the Promissory Note. "Net Proceeds" shall
mean all proceeds collected and received
from any account debtor of the Debtors or
any obligors on any obligations payable to
the Debtors, after deduction of all
reasonable expenses incurred in collection
of such accounts including, without
limitation, all attorneys' fees and costs
incurred by Secured Party or on its behalf.
(iii) DEFICIENCY. The exercise of the Secured
Party of its right of Direct Collection
hereunder and in application of any Net
Proceeds to any obligation of Debtors
hereunder shall in no way operate to
prejudice or affect in any way Secured
Party's right hereunder to at any time
proceed directly against Debtors.
14. WAIVER OF RIGHTS.
(a) All rights and remedies of the Secured Party as
provided in this Agreement, or as found in the
Promissory Note executed in connection with this
Agreement, or arising by operation of law shall
continue in full force and effect during the full
course of this Agreement unless specifically waived
by the Secured Party in a signed writing to that
effect.
(b) Forbearance, failure, or delay on the part of the
Secured Party in the exercise of any such right or
remedy shall not constitute a waiver thereof and may
only be effected by a specific written agreement to
that effect which is signed by the Secured Party.
(c) The exercise or partial exercise of any right or
remedy shall not preclude the further exercise of
such right or remedy.
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15. CHOICE OF LAW. This Agreement shall be governed and
interpreted in accordance with the laws of the State of Florida.
16. SEPARATE AGREEMENT. This Agreement and the Promissory Note
secured hereby shall be construed together as an agreement separate and
independent of any agreements, obligations or undertakings between the Secured
Party and the Debtors, or any of them, and the existence of any claim related to
such other agreements, obligations or undertakings between or among them shall
not constitute a defense to the enforcement of this Agreement or the Promissory
Note secured hereby, such defense(s) being expressly hereby waived by Debtors.
17. SEVERABILITY. In the event that any provision of this
Agreement shall be found to be unenforceable in any legal proceeding, the
remaining provisions shall remain in force and effect.
18. EXECUTION. This Agreement becomes effective when signed by the
Debtors.
WITNESSES: DEBTORS:
EAGLE AMALGAMATED SERVICES, INC.
/s/ DAVID S. COOVER By: /s/ PHILIP RAPPA
- --------------------------------- ---------------------------------
Its: SECRETARY
----------------------------
DAVID S. COOVER
- ---------------------------------
[Print name] Date: 12/15/00
-------------------------------
SAC-I, INC.
/s/ DAVID S. COOVER By: /s/ PHILIP RAPPA
- --------------------------------- ---------------------------------
Its: SECRETARY
----------------------------
DAVID S. COOVER
- ---------------------------------
[Print name] Date: 12/15/00
-------------------------------
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SECURED PARTY:
FLORIDA ENGINEERED CONSTRUCTION
PRODUCTS CORPORATION
/s/ DAVID S. COOVER By: /s/ TIM KLACE
- --------------------------------- ---------------------------------
Its: CHIEF FINANCIAL OFFICER
----------------------------
DAVID S. COOVER
- ---------------------------------
[Print name] Date: 12/15/00
-------------------------------
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