EXHIBIT 10.1
TERM LOAN AGREEMENT
NBD BANK ("NBD" or the "Bank") whose addresses ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, has approved the following credit facilities (the
"Credit Facilities") to NATIONAL HOME CENTERS, INC., an Arkansas corporation
(the "Borrower"), whose address is ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, under the terms and conditions set forth in this Agreement:
1.0 CREDIT FACILITIES.
1.1 TERM LOAN. The Bank agrees to extend to the Borrower a $5,000,000
term loan (the "Term Loan"), which will bear interest and be payable as set
forth in the Term Loan Note attached hereto as Exhibit A and made a part hereof
(as it may be amended, restated, replaced or from time to time, the "Note")
maturing on October 1, 1999. Borrower has advised lender that the Term Loan
will be used by Borrower to term out certain revolving credit facilities and to
acquire certain inventory and equipment of BWA, Inc.
2.0 CONDITIONS PRECEDENT. The Borrower must satisfy the following
conditions prior to the extension of the Term Loan:
2.1 REPRESENTATIONS TRUE. The representations and warranties of the
Borrower contained in this Agreement must be true, correct and complete as of
the date of closing.
2.2 NO DEFAULT. No Event of Acceleration under this Agreement has
occurred nor has any event occurred which, upon the lapse of time or service of
notice, or both, would constitute an Event of Acceleration under this Agreement
or any other agreement with Bank.
2.3 DELIVERY OF OTHER DOCUMENTS, ETC. Prior to or simultaneously with
execution and delivery of this Agreement, the Borrower must cause to be
executed and delivered to the Bank the following documents:
A. A Term Loan Note in the principal amount of $5,000,000, in
substantially the form of Exhibit A attached hereto.
B. A Mortgage and Security Agreement in substantially the form of Exhibit
B attached hereto.
C. UCC-1 Financing Statements, in substantially the form of Exhibit C
attached hereto.
D. NBD must have participating lenders ("Participating Lenders") who
purchase $1,500,000 of participations in the Term Loan on terms and conditions
satisfactory to NBD.
E. Such other documents as NBD may request, including those identified on
the Preliminary Closing Checklist attached to this Agreement as Exhibit D.
2.4 OTHER CONDITIONS PRECEDENT. Before the disbursement of the Term Loan,
the following conditions must be satisfied:
A. ADDITIONAL APPROVALS, OPINIONS AND DOCUMENTS. The Bank has received
any other approvals, opinions and documents it may reasonably request; and
B. ASSET ACQUISITION. Borrower has advised NBD that it intends to acquire
the certain assets of BWA, Inc. including certain inventory at a price equal to
book value or actual cost or as otherwise provided in that certain letter
agreement dated August 29, 1 996 between Bank and Borrower and certain equipment
for the sum of $285,000 and Borrower acknowledges that the proceeds of such
purchase will be applied to BWA, Inc.'s obligations to NBD.
3.0 [INTENTIONALLY OMITTED.]
4.0 FEES AND EXPENSES.
4.1 [INTENTIONALLY OMITTED.]
4.2 OUT-OF-POCKET EXPENSES. Borrower shall be responsible for the payment
of all fees and out-of-pocket disbursements incurred by NBD in any way arising
from or in connection with this Agreement (or any agreement referred to or
incorporated herein or executed in connection herewith), or any of the
Borrower's liabilities to the Bank whether now existing or hereafter arising and
howsoever evidenced, including, without limitation, the fees of counsel for NBD
for the preparation, examination and approval of documents in connection with
this Agreement, for the payment of all fees and out-of-pocket disbursements
incurred by NBD, including reasonable attorneys' fees, in any way arising from
or in connection with any action taken by NBD or any holder of the Note, to
monitor, advise, enforce or collect the Borrower's liabilities to the Bank, or
enforce any liabilities of Borrower under this Agreement or any other document
or agreement arising from or relating to the business relationship between NBD
and Borrower or otherwise securing any of Borrower's liabilities to NBD,
including any actions to lift the automatic stay or to otherwise in any way
participate in any bankruptcy, reorganization or insolvency proceeding of
Borrower, or in relation to or in defense of any litigation instituted by
Borrower, any guarantor, or one or more of them, or any third party against NBD
arising from or relating to the Borrower's present and future liabilities to the
Bank, this Agreement, any guaranties of Borrower's
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liabilities to Bank or any other document or agreement arising from or relating
to the business relationship between Borrower and NBD, including any so-called
"lender liability" actions or any actions arising under the Bankruptcy Code or
any state insolvency statute but excluding any actions arising in connection
with any private UCC sale of assets of BWA, Inc. to Borrower raised by parties
other than Borrower or parties directly or indirectly controlled by Borrower.
All of these expenses and fees shall be part of the Borrower's liabilities to
the Bank and shall be secured by all collateral security granted to Bank by
Borrower or any Guarantor of Borrower's liabilities to Bank. NBD shall be
permitted to charge Borrower's account for such fees, expenses and costs when
paid by NBD. Borrower's agreement to be responsible for the Bank's attorney
fees shall apply regardless of whether or not the Bank prevails in whole or part
in any action or litigation.
5.0 [INTENTIONALLY OMITTED].
6.0 SECURITY.
6.1 REAL ESTATE. Payment of the borrowings under the Credit Facilities
and all other of Borrower's present and future liabilities to the Bank shall be
secured by a first mortgage ("Mortgage") on certain real estate located at ▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ together with fixtures thereon ("Property').
The Mortgage is supported by an assignment of rents, subordination of leases and
collateral assignments of land contracts, as applicable. The Borrower shall
provide Bank with an ALTA mortgage title policy, acceptable to Bank, without
exceptions and a survey certified to Bank and the title insurance company all in
form and substance satisfactory to Bank (all of the foregoing collateral is
hereinafter referred to as the "Collateral").
6.2 No forbearance or extension of time granted any subsequent owner of
the Collateral shall release the Borrower from liability.
6.3 ADDITIONAL COLLATERAL/SETOFF. To further secure payment of the
borrowings under the Credit Facilities and all of the Borrower's other present
and future liabilities to the Bank, the Borrower grants to the Bank a continuing
security interest in: (i) all securities and other property of the Borrower in
the custody, possession or control of the Bank's commercial loan department and
(ii) all balances of deposit accounts and certificates of deposit of the
Borrower with the Bank. The Bank is hereby authorized at any time and from time
to time, without notice to the Borrower (any such notice being expressly
waived), to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by the Bank (or any affiliate of Bank or any lender participating
with the Bank but excluding any affiliate of such participant) to or for the
credit or the account of the Borrower, as the case may be, against any and all
of the obligations of the Borrower, now or hereafter existing, including those
under
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this Agreement or any Note, irrespective of whether or not the Bank shall have
made any demand under this Agreement or any Note or otherwise and although such
obligations may be unmatured. The Bank agrees to promptly notify the Borrower
after any such set off and application, provided that the failure to give such
notice shall not affect the validity of such setoff and application or give
rise to any claim against Bank. The rights of the Bank under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of setoff) which the Bank may have.
6.4 CROSS-DEFAULTS AND CROSS-COLLATERALIZATION. Any of the Borrower's
property in which the Bank now or in the future has a security interest to
secure payment of any other present or future debt, whether absolute,
contingent, direct or indirect, including the Borrower's guaranties of the
debts of others, shall also secure payment of and be part of the Collateral for
the Credit Facilities and all of Borrower's other present and future
liabilities to Bank howsoever evidenced. A default under this Agreement, shall
be considered a default under all other loans and all obligations of Borrower
to NBD as well as all other agreements between NBD and Borrower. A default by
Borrower under any agreements, notes or documents that they may now or in the
future have with Bank shall be a default under this Agreement and shall be
considered a default under all other present and future agreements between NBD
and Borrower.
7.0 [INTENTIONALLY OMITTED]
8.0 [INTENTIONALLY OMITTED.]
9.0 AFFIRMATIVE COVENANTS. So long as any debt remains outstanding under
the Credit Facilities, the Borrower, and its subsidiaries, if any, shall:
9.1 INSURANCE. Maintain insurance with financially sound and reputable
insurers covering its property, including, but not limited to, the Property and
business against those casualties and contingencies in the types and amounts as
shall be in accordance with sound business and industry practices and is
required in the Mortgage or as otherwise required by NBD.
9.2 EXISTENCE. Maintain its existence and business operations as
presently in effect in accordance with all applicable laws and regulations, pay
its debts and obligations when due under normal terms, and pay on or before
their due date, all taxes, assessments, fees and other governmental monetary
obligations, except as may be contested in good faith if they have been
properly reflected on its books and, at the Bank's request, adequate funds or
security has been pledged to insure payment.
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9.3 FINANCIAL RECORDS. Maintain proper books and records of account, in
accordance with generally accepted accounting principles where applicable, and
consistent with financial statements previously submitted to the Bank.
9.4 NOTICE. Give prompt notice to the Bank of the currents of (i) any
Event of Acceleration, and (ii) any other development, financial or otherwise,
which would affect the Borrower's business, properties or affairs in a
materially adverse manner.
9.5 FINANCIAL STATEMENTS. Furnish to the Bank whatever information,
books, and records the Bank may request, including, but not limited to:
A. Within 30 days after and as of the end of each quarter, a balance sheet
and statements of income, retained earnings, and cash flows from the beginning
of that fiscal year to the end of that period, certified as correct by one of
Borrower's authorized agents.
B. Within 90 days after and as of the end of each of its fiscal years, a
detailed financial statements, including a balance sheet and statements of
income retained, earnings and cash flows, audited by an independent certified
public accountant of recognized standing.
C. An Environmental Certificate on the Bank's form on and as of the date
of this Agreement, and thereafter on each five-year anniversary of this
Agreement.
10.0 Negative Covenants.
10.1 Definitions. As used in this Agreement the term "Tangible Net Worth"
means total assets less intangible assets and total liabilities. Intangible
assets include good will, patents, copyrights, mailing lists, catalogs,
trademarks, bond discount and underwriting expenses, organization expenses and
all other intangibles.
10.2 Unless otherwise noted, the financial requirements in this section
will be computed in accordance with generally accepted accounting principles
applied on a basis consistent with financial statements previously submitted by
the Borrower to the Bank.
10.3 Without the prior written consent of the Bank, so long as the Term
Loan remains outstanding, the Borrower shall not:
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A. DIVIDENDS. Acquire or retire any of its shares of capital stock, or
declare or pay dividends or make any other distributions or options to purchase
or acquire any shares or securities; provided, however, Borrower has publicly
announced a plan to repurchase the equivalent to $650,000 worth in the
aggregate of the shares of its stock at the then market price as set forth in
Exhibit E attached hereto ("Plan") and provided there is no Event of
Acceleration hereunder, Borrower may acquire shares of its stock pursuant to
such Plan.
B. SALE OF SHARES. Issue, sell or otherwise dispose of any shares of its
capital stock or other securities or rights, warrants or options to purchase or
acquire such shares or securities, except in an underwritten secondary offering
of Borrower's stock.
C. DEBT. Incur, or permit to remain outstanding, debt for borrowed money
or installment obligations, except debt reflected in the latest financial
statement of the Borrower furnished to the Bank prior to execution of this
Agreement and, except with respect to the paydown of a BankAmerica Business
Credit ("BankAmerica) revolving loan as set forth in Section 1.1 hereof, not to
be paid with proceeds of the Credit Facilities. For purposes of this covenant,
the sale of any accounts receivable shall be deemed the incurring of debt for
borrowed money. Notwithstanding the foregoing, Borrower may incur additional
purchase money debt for acquisition of equipment provided such amount shall not
exceed $3,000,000 in any fiscal year and other real estate financing in the
ordinary course of Borrower's business provided such amount shall not exceed
$5,000,000 in a fiscal year.
D. GUARANTIES. Guaranty or otherwise become or remain secondarily liable
on the undertaking of another, except for endorsement of drafts for deposit and
collection in the ordinary course of business.
E. LIENS. Create or permit to exist any lien on any of its property,
real or personal, except: existing liens known to the Bank; liens to the Bank;
liens incurred in the ordinary course of business securing current
nondelinquent liabilities for taxes, worker's compensation, unemployment
insurance, social security and pension liabilities; liens for taxes being
contested in good faith; and subject to Section 10.3C. above, liens for
equipment financing and liens on real estate (other than on the Property) in
the ordinary course of Borrower's business.
F. ADVANCES AND INVESTMENTS. Purchase or acquire any securities of, or
make any loans or advances to or investments in any person or business entity,
except obligations of the United States Government, open market commercial
paper rated one of the top two ratings by a rating agency of recognized
standing, or certificates of deposit in insured financial institutions.
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G. USE OF PROCEEDS. Use or permit any loan proceeds to be used, directly or
indirectly, for the purpose of "purchasing or carrying any margin stock" within
the meaning of Federal Reserve Board Regulation U. At the Bank's request, the
Borrower shall furnish to the Bank a completed Federal Reserve Board Form U-1.
H. TANGIBLE NET WORTH. Permit its Tangible Net Worth to be less than
$26,400,000 for the period from the date of this Agreement through January 30,
1997; increasing to $27,100,000 for the period from January 31, 1998 through
January 30, 1999, and increasing to $27,700,000 at January 31, 1999 and
remaining at not less than this amount thereafter.
1. LEVERAGE RATIO. Permit the ratio of its total liabilities to Tangible
Net Worth to exceed 3.00:1.00.
J. INTEREST COVERAGE RATIO. Permit its Interest Coverage Ratio to be not
less than .85:1.0 for the period from the date of this Agreement through October
30, 1997; increasing to .95:1.0 for the period from October 31, 1997 through
April 29, 1998; and increasing to 1.0:1.0 at April 30, 1998 and remaining not
less than this amount thereafter. "Interest Coverage Ratio" means for any period
the ratio of Borrower's net income before tax plus interest expense to interest
expense during such period. This ratio is calculated quarterly on a rolling
four-quarter basis, beginning with the quarter ending August 31, 1996.
11.0 REPRESENTATIONS.
11.1 RESTRICTIONS. Borrower represents that the execution and delivery
of this Agreement and the Note and all other documents and instruments executed
in connection therewith, and the performance of the obligations they impose, do
not violate any law and do not conflict with any agreement by which it is bound,
and that no consent or approval of any governmental authority or any third party
is required in connection with the execution or delivery of this Agreement, the
Mortgage or the Note, or the performance of the obligations they impose, and
that this Agreement and the Note are valid and binding agreements, enforceable
in accordance with their terms.
11.2 FINANCIAL STATEMENTS. Borrower represents that all financial
statements furnished to the Bank are accurate and fairly reflect the financial
condition of Borrower on their effective dates, including contingent liabilities
of every type, which financial condition has not changed materially since those
dates.
11.3 TAXES. There have been no audits of Borrower's federal income tax
returns, which have resulted in or are likely to result in the assessment of any
material tax liability against Borrower and all taxes shown by any returns have
been paid.
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11.4 ABSENCE OF MATERIAL LITIGATION. The Borrower is not a party to any
litigation or administrative proceeding, nor so far as is known by the Borrower
is any litigation or administrative proceeding threatened against it, which in
either case would, if adversely determined, cause any material adverse change in
its properties or the conduct of its business or create a liability in excess of
$500,000.
11.5 NAME. Borrower's name is exactly as set forth on the signature page
of this Agreement and the Borrower has not changed its name since, nor has it
used any assumed name(s).
11.6 LIENS. Except for liens in favor of the Bank, Borrower has not
granted any other person any lien or other interest in the Collateral. No
financing statements covering any Collateral or proceeds of the Collateral are
on file in any public office except financing statements with NBD listed as
secured party.
11.7 COLLATERAL. Borrower is the sole owner of the Collateral with full
right and authority to mortgage the Collateral to NBD.
12.0 ACCELERATION.
12.1 EVENTS OF ACCELERATION. If any of the following events occurs:
A. The Borrower fails to pay when due any amount payable under the Credit
Facilities or under any agreement or instrument evidencing debt to any creditor
(including NBD) except of Borrower's trade creditors;
B. The Borrower (a) fails to pay when due any amounts due under the Note,
and such default is not cured within ten (1 0) days thereof; or lb) fails to
observe or perform any other term of this Agreement, the Note or any guaranty
agreements in favor of the Bank, which default is not cured within thirty (30)
days after notice thereof to Borrower; or (c) makes any materially incorrect or
misleading representation, warranty, or certificate to the Bank; or (d) makes
any incorrect or misleading representation in any financial statement or other
information delivered to the Bank; or (e) fails to pay when due Borrower's trade
creditors, which default is not cured within thirty (30) days of such due date;
or (f) defaults under the terms of any agreement or instrument relating to any
debt for borrowed money (other than borrowings under the Credit Facilities)
which are not cured within any applicable cure period thereunder or are not
waived by such creditor within thirty (30) days ("Creditor Waiver Period") of
such default; provided, however, notwithstanding the foregoing, in the event a
creditor or BankAmerica commences an Enforcement Action during the Creditor
Waiver Period it shall immediately be an Event of Acceleration hereunder. For
the purposes of this Agreement the term "Enforcement Action" shall mean any
administrative, legal or equitable action against the Borrower, the collateral
for BankAmerica's loan or the collateral for the Term Loan or any
administrative, legal or
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equitable action(s) that may adversely affect Borrower or it's interests,
including, without limitation, exercising any legal rights to enforce security
interests, mortgages or liens against the collateral securing the BankAmerica
loan or the collateral securing the Term Loan, or setting off, or upon any part
of such collateral in the possession of or coming into possession of such
creditor, or its agent or bailee;
C. The Borrower defaults (which default is not cured within any applicable
notice and cure period set forth herein) under the terms of any loan agreement,
mortgage, security agreement, guaranty or any other document or agreement with
Bank, or any guaranty of Borrower's liabilities to Bank becomes unenforceable in
whole or in part, any guarantor fails to promptly perform under any guaranty;
D. A "Reportable Event" as defined in the Employee Retirement Income
Security Act of 1974 as amended (occurs that would permit the Pension Benefit
Guaranty Corporation to terminate any employee benefit plan of the Borrower or
any affiliate of the Borrower).
E. The Borrower becomes insolvent or unable to pay its debts as they
become due;
F. The Borrower, (a) makes an assignment for the benefit of creditors; (b)
consents to the appointment of a custodian, receiver or trustee for it or a
substantial part of its assets; or (c) commences any proceeding under any
bankruptcy, reorganization, liquidation or similar laws of any jurisdiction;
G. A custodian, receiver or trustee is appointed for the Borrower, for a
substantial part of its assets without the consent of the party against which
the appointment is made and is not removed within 15 days after such
appointment; or the Borrower, consents to such appointment;
H. Proceedings are commenced against the Borrower, under any bankruptcy,
reorganization, liquidation, or similar laws of any jurisdiction, and such
proceedings remain undismissed for 10 days after commencement; or the Borrower
consents to the commencement of such proceedings;
I. One or more final judgments for the payment of money aggregating in the
excess of $500,000 (whether or not covered by insurance) shall be rendered
against Borrower and the Borrower shall fail to discharge the same within thirty
(30) days from the date of notice of entry thereof or to appear therefrom or any
attachment, levy, tax lien or garnishment is issued against any property of the
Borrower and is outstanding for more than thirty (30) days therefrom.
J. The Borrower, without the Bank's written consent, (a) is dissolved, (b)
merges or consolidates with any third party; (c) sells a material part of its
assets or
9
business outside the ordinary course of its business; or (d) agrees to do any of
the foregoing;
K. There is a substantial change in the existing or prospective financial
condition or business prospects of the Borrower that the Bank determines to be
materially adverse;
L. The Bank shall deem itself insecure and Borrower fails to grant
additional security for the Term Loan acceptable to NBD, in its sole discretion,
within ten (10) days of notice thereof;
then, whether or not the Bank has made demand, the Credit Facilities shall
terminate and all borrowings thereunder together with all other of Borrower's
present and future liabilities to Bank shall become due immediately, without
notice, except as provided in this Agreement, at the Bank's option and Bank
shall have all other rights and remedies provided by any law or agreement.
12.2 REMEDIES. If the borrowings under the Credit Facilities or any other
of Borrower's present or future liabilities to Bank are not paid at maturity,
whether by acceleration or otherwise, or if any other Event of Acceleration
occurs, the Bank shall have all of the rights and remedies provided by any law
or agreement, The Bank is authorized to cause all or any part of the Collateral
to be transferred to or registered in its name or in the name of any other
person, firm or corporation, with or without designation of the capacity of such
nominee, and without prior notice to the Borrower. The Borrower shall be liable
for any deficiency remaining after disposition of any Collateral.
12.3 BANKAMERICA WAIVER. Notwithstanding anything herein to the contrary,
in the event of a covenant default under section 10.3 1. or 1 0.3 J. hereunder,
which covenant default (i) occurs within one (1) year of the date hereof and
(ii) BankAmerica waives in writing the identical covenant default or within
thirty (30) days of such covenant default, Bank agrees to waive such covenant
default under the same terms and conditions as BankAmerica.
13.0 MISCELLANEOUS.
13.1 Notice from one party to another relating to this Agreement (or any
agreement referred to or incorporated herein or extended in connection herewith
or in furtherance hereof) shall be deemed effective if made in writing
(including telecommunications) and delivered to the recipient's address, telex
number or telecopier number set forth herein by any of the following means: (a)
hand delivery, (b) registered or certified mail, postage prepaid, with return
receipt requested, (c) first class or express mail, postage prepaid, (d) Federal
Express, Purolator Courier or like overnight courier service or (e) telecopy,
telex or other wire transmission with request
10
for assurance of receipt in a manner typical with respect to communication of
that type. Notice made in accordance with this section shall be deemed
delivered upon receipt if delivered by hand or wire transmission, 3 business
days after mailing if mailed by first class, registered or certified mall or
one business day after mailing or deposit with an overnight courier service if
delivered by express mall or overnight courier.
13.2 No delay on the part of the Bank or any holder of the Note in the
exercise of any right, power or privilege under this Agreement or any other
agreement shall operate as a waiver nor shall any single or partial exercise of
any right, power or privilege under this Agreement or any other agreement
preclude any other future exercise of that right, power or privilege or the
exercise of any other right, power or privilege. No waiver or indulgence by
the Bank of any default shall be effective unless in writing and signed by the
Bank, nor shall a waiver on one occasion be construed as a bar to or waiver of
that right on any future occasion. The rights and remedies specified in this
Agreement are cumulative and not exclusive of any rights or remedies which the
Bank or the holder of the Note would otherwise have.
13.3 This Agreement embodies the entire agreement and understanding
between the Borrower and the Bank and supersedes all prior agreements and
understandings relating to its subject matter. If any one or more of the
obligations of the Borrower under this Agreement or the Note is invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and
enforceability of the remaining obligations of the Borrower shall not in any
way be affected or impaired, and such validity, illegality or unenforceability
in one jurisdiction shall not affect the validity, legality or enforceability
of the obligations of the Borrower under this agreement or the Note in any
other jurisdiction.
13.4 All agreements, representations and warranties made in this
Agreement shall survive the execution of this Agreement, the making of advances
under the Credit Facilities and the execution and delivery of the Note.
13.5 This Agreement is deemed to be made in, and is delivered in the
State of Michigan and shall be governed by the internal laws of the State of
Michigan without regard to conflicts of law principles; provided, however, all
in rem rights, remedies and procedures with respect to the Mortgage or
realizing on any Collateral located in Arkansas shall be governed by the laws
of the State of Arkansas. This Agreement is binding on the Borrower and its
successors, and shall inure to the benefit of the Bank, its successors and
assigns.
13.6 In the event that any payment called for by this Agreement (or any
agreement referred to or incorporated herein) or any other present or future
agreements between NBD and Borrower is not paid when and as called for in the
terms of such agreement, then NBD may debit any of Borrower's accounts at NBD
for
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such amount. The fact that NBD has debited any of Borrower's accounts at NBD
shall in no way whatsoever waive or diminish any default or Event of
Acceleration for failure to make such payments when and as due.
13.7 Borrower, on its own behalf and on behalf of its successors and
assigns hereby expressly waives all rights, if any, to require a marshalling of
assets by the Bank or to require that the Bank first resort to some or any
portion of the Collateral before foreclosing upon, selling or otherwise
realizing on any other portion thereof.
13.8 Section headings are for convenience of reference only and shall not
affect the interpretation of this Agreement.
13.9 NBD may sell participation interests in the Term Loan and in advance
of a sale, NBD may disclose to prospective purchasers all information regarding
the Borrower that NBD is aware of, and the Borrower must cooperate in this
effort. Borrower acknowledges that Springdale Bank & Trust and Farmers and
Merchants Bank are the proposed participants with NBD and that ▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇ will be providing guaranties to such participants.
13.10 Waiver of Jury Trial. THE BANK AND THE BORROWER, AFTER CONSULTING
OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BY JURY IN
ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED
INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN), OR ACTIONS OF EITHER OF THEM. NEITHER THE BANK NOR THE BORROWER SHALL
SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A
JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE
OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN
MODIFIED IN ANY RESPECT OR RELINQUISHED BY EITHER THE BANK OR THE BORROWER
EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY BOTH OF THEM.
[Signatures on next page]
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NBD BANK, NATIONAL HOME CENTERS, INC.,
a Michigan banking corporation an Arkansas corporation
By: By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ----------------------------
Name: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------- -----------------------
Title: Title: EVP & CFO
-------------- ---------------------
Dated: September 25, 1996
EXHIBITS:
A - Term Loan Note
B - Mortgage and Security Agreement
C - UCC-1 Financing Statements
D - Preliminary Closing Checklist
E - Stock Repurchase Plan
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