Exhibit 10.24
AMENDED AND RESTATED
MASTER PROMISSORY NOTE
WHEREAS, Ribbons, Inc. executed and delivered to Ameritrust Company
National Association ("Ameritrust") a Promissory Grid Note dated June 2, 1986,
in the maximum principal amount of Three Million Five Hundred Thousand Dollars
($3,500,000) (the "Note");
WHEREAS, as security for the indebtedness evidenced by the Note,
Ribbons, Inc. executed a certain Security Agreement in favor of Ameritrust
dated May 28, 1985, as amended by an Amendment to Security Agreement dated
June 2, 1986 and an Amendment to Security Agreement dated August 5, 1993 (as
amended, the "Security Agreement");
WHEREAS, Buckeye Business Products, Inc. is successor by a series of
mergers and name changes to Ribbons, Inc.;
WHEREAS, PUBCO CORPORATION ("Company") is successor by merger to Buckeye
Business Products, Inc. and KEYBANK NATIONAL ASSOCIATION (formerly known as
Society National Bank) ("Bank") is successor by merger to Ameritrust; and
WHEREAS, the business operations of the former Buckeye Business
Products, Inc. are currently conducted as a division of Company known as
"Buckeye Business Products Inc. (the Buckeye Division)", and separate books
and records, including financial records, are maintained therefor.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the Company and Bank hereby mutually agree that
the Note shall be amended and restated in its entirety as follows:
$2,500,000.00 Cleveland, Ohio, ____________, 1996
Company promises to pay to the order of Bank at any of its offices the
principal amount of each Advance, together with interest on the daily
principal balance of such Advance at a rate per annum equal to the Interest
Rate applicable to such Advance. The principal amount of each Advance shall
be due and payable on the Maturity Date applicable to such Advance. Issued
and outstanding letters of credit issued by Bank on the account of the Buckeye
Division shall not exceed Five Hundred Thousand Dollars ($500,000). Accrued
interest on each LIBOR Advance shall be due and payable on the Maturity Date
applicable to such Advance. Accrued interest on each Prime Advance shall be
due and payable on the first day of each month. During any Event of Default,
the daily principal balance of each Advance shall bear interest at a rate per
annum equal to the Default Interest Rate. Except during any Event of Default,
no LIBOR Advance may be repaid prior to its Maturity Date.
1
This note shall serve as a master note to evidence all Advances;
provided, however, that the aggregate unpaid principal amount of all Advances
shall not at any one time outstanding exceed (a) the amount specified in the
Line Facility, or (b) the Borrowing Base, whichever is less. Company shall
provide a Borrowing Base Certificate to Bank monthly. In the absence of
reasonable evidence established by Company to the contrary, Bank's records as
to (a) the principal amount, the Maturity Date, and the Interest Rate
applicable to each Advance, and (b) each payment of principal and interest
received by Bank applicable to each Advance shall be conclusively deemed to be
accurate.
This note is being executed and delivered as an amendment to and
restatement of an existing Promissory Grid Note and dated June 2, 1986, and
the execution and delivery of this note shall not constitute a novation and
shall not terminate or otherwise affect the first lien and security interest
of the Bank in the Buckeye Division's property.
For each payment of principal or interest not received by Bank when due,
the Company agrees to pay Bank a late charge equal to the greater of ten
percent (10%) of the amount of the payment or twenty five dollars ($25.00).
Company waives presentment, demand, notice, protest, and all other
demands and notices in connection with delivery, acceptance, performance,
default, or enforcement of this note. Any request, demand, or notice by or on
behalf of Bank, when delivered or deposited for delivery, postage prepaid, by
certified United States mail to Company at Company's address set forth below
shall constitute, but shall not preclude other means of, an effective request,
demand, or notice. Any request, demand, or notice by or on behalf of Company
must be in writing and shall not be effective until delivered to Bank at Bank's
address set forth below.
At the option of Bank during any Event of Default, all Obligations shall
become immediately due and payable, Bank may terminate the Line Facility
(including, without limitation, any obligation of Bank to make any further
Advances), and Bank may apply or setoff any Cash Security against all
Obligations, all without any notice to or demand upon Company, in addition to
any other rights and remedies Bank may have pursuant to law, this note, or any
other instruments or agreements, which rights and remedies shall be
cumulative. If during any Event of Default any LIBOR Advance becomes due and
payable and is repaid prior to its Maturity Date, Company also promises to
reimburse Bank on demand for any resulting loss, cost, or expense incurred by
Bank as a result of Company's repayment of such Advance prior to its Maturity
Date including, without limitation, any loss incurred in obtaining,
liquidating, or employing deposits from third parties, but excluding loss of
margin for the period after any such payment. If, because of the introduction
of or any change in, or because of any judicial, administrative, or other
governmental interpretation of, any law or regulation, there shall be any
increase in the cost to Bank of making, funding, maintaining, or allocating
capital to any LIBOR Advance, then Company shall, from time to time upon
demand by Bank, pay to Bank additional amounts sufficient to compensate Bank
for such increased cost. If, because of the introduction of or any change in,
or because of any judicial, administrative, or other governmental
interpretation of, any law or regulation, it becomes unlawful for Bank to
make, fund, or maintain any LIBOR Advance, then Bank's obligation to make,
fund, or maintain any LIBOR Advance shall terminate and each affected
outstanding LIBOR Advance shall be converted to a Prime Advance on the earlier
of the applicable Maturity Date for each such Advance or the date the making,
funding, or maintaining of each such Advance becomes unlawful.
2
All provisions hereof shall be subject to, governed by, and construed in
accordance with Ohio law. Unenforceability of any provision hereof or any
application of any provision hereof shall not affect the enforceability of any
other provision or application of any provision. Any amendment or waiver
hereof or any waiver of any right or remedy otherwise available must be in
writing and signed by the party against whom enforcement of the amendment or
waiver is sought. After all Obligations evidenced by this note become due and
payable, any attorney-at-law is irrevocably authorized to (a) appear for
Company in any state or federal court of record, (b) waive the issuance and
service of process, all errors, and all rights of appeal and stay of
execution, and (c) confess judgment against Company in favor of Bank for the
principal balance of this note, the amount of all unpaid accrued interest, the
amount of all costs of suit, and the amount of a reasonable attorney's fee.
These authorizations shall survive any judgment(s) and any vacation of any
judgment(s). Company agrees that the Bank's attorney may confess judgment
pursuant to the foregoing warrant of attorney. Company further agrees that
the attorney confessing judgment pursuant to the foregoing warrant of attorney
may receive a legal fee or other compensation from the Bank.
For the purposes of this note:
"Advance" means any loan advance made by Bank to the Buckeye Division
pursuant to the Line Facility;
"Bank" means KEYBANK NATIONAL ASSOCIATION, a national banking
association with its main office located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx,
Xxxx 00000, and its successors and assigns;
"Borrowing Base" means an amount not in excess of the sum of the
following:
(a) eighty-five percent (85%) of the amount due and owing on
Qualified Accounts Receivable, plus
(b) the lesser of (1) forty percent (40%) of the cost or market
value (whichever is lower) of Company's Qualified Inventory
or (2) One Million Dollars ($1,000,000), less
(c) balance of outstanding letters of credit, if any;
"Borrowing Base Certificate" shall mean a certificate, substantially in
the form of attached Exhibit A;
"Business Day" means a day of the year on which banks are not required or
authorized to close in Cleveland, Ohio and, if the applicable Business Day
relates to any LIBOR Advance, on which dealings are carried on in the
London interbank eurodollar market;
"Company" means the undersigned and its successors and assigns; provided,
however, that Company may not assign or otherwise transfer any of its rights
under this note without the express written consent of Bank;
3
"Cash Security" means any present or future (a) money in the
possession of Bank in which the Buckeye Division has or may have any right,
title, or interest, (b) Deposit Account maintained with Bank in which the
Buckeye Division has or may have any right, title or interest, or (c)
Instrument or General Intangible issued or assumed by Bank in which the
Buckeye Division has or may have any right, title, or interest;
"Default Interest Rate" means that floating rate per annum (calculated on
the basis of a year of 360 days for the actual number of days elapsed)
equal to the greater of three percent (3%) in excess of the Prime Rate,
which rate shall be immediately adjusted to correspond with each change in
the Prime Rate, or sixteen percent (16%);
"Deposit Account" shall be defined as set forth in Article 9 of the UCC;
"Event of Default" means any of the following events or conditions: (a)
any Obligation evidenced by this note or the Line Facility is not paid
when such Obligation becomes due and payable; (b) any Obligation not
evidenced by this note or the Line Facility is not paid when (or within
any applicable grace period after) such Obligation becomes due and
payable; (c) any material representation, warranty, certification,
financial statement, loan application, information, or record made,
furnished, or made available to Bank by or on behalf of Company in
connection with any Obligation is inaccurate or misleading in any material
respect when made, furnished, or made available; (d) any material
provision of any documentation evidencing, securing, or otherwise relating
to any Obligation is breached; (e) Company (1) is adjudicated by any court
in any jurisdiction to be insolvent, (2) ceases, is unable, or admits in
writing the inability to generally pay its debts as they become due, (3)
makes any general assignment for the benefit of its creditors, (4) applies
for or consents to the appointment of or the taking of possession by any
receiver, custodian, trustee, liquidator, or similar representative of or
for it or of or for any material part of its property, or (5) commences or
consents to the commencement of any case or proceeding with respect to it
or any material amount of its property pursuant to any Insolvency Law; (f)
any case or proceeding pursuant to any Insolvency Law is commenced against
or with respect to Company or any material amount of its property without
its consent which is not dismissed or stayed within 30 days after its
commencement; (g) any judgment, attachment, execution, or similar process
aggregating in excess of $1,000,000 is rendered, issued, or levied against
Company or any material amount of its property and is not fully satisfied,
released, vacated, or bonded within 30 days after its rendering, issue, or
levy; and (h) Company ceases to maintain separate books and records,
including financial records, for the Buckeye Division.
"General Intangible" shall be defined as set forth in Article 9 of the
UCC;
"Insolvency Law" means any reorganization, arrangement, composition, or
readjustment of debts, bankruptcy, insolvency, dissolution, liquidation,
receivership, trusteeship, or similar law of any state or the United
States;
4
"Instrument" shall be defined as set forth in Article 9 of the UCC;
"Interest Rate" means (a) as to any Prime Advance, that floating rate per
annum (calculated on the basis of a year of 360 days for the actual number
of days elapsed) equal to the Prime Rate, which rate shall be immediately
adjusted to correspond with each change in the Prime Rate, and (b) as to
any LIBOR Advance, that fixed rate per annum (calculated on the basis of a
year of 360 days for the actual number of days elapsed) equal to two
percent (2%) in excess of the Reserve Adjusted LIBOR Rate;
"Inventory" means:
(a) any of the Buckeye Division inventory;
(b) all goods of the Buckeye Division that are raw materials;
(c) all goods of the Buckeye Division that are work in process;
(d) all goods of the Buckeye Division that are materials used or
consumed in the ordinary course of the business of the
Buckeye Division;
(e) all goods of the Buckeye Division that are, in the ordinary
course of Company's business, held for sale or lease or
furnished or to be furnished under contracts of service; and
(f) all substitutes and replacements for, and parts,
accessories, additions, attachments, or accessions to (a) to
(e) above;
"LIBOR Advance" means any Advance that bears interest determined with
reference to the Reserve Adjusted LIBOR Rate;
"LIBOR Reserve Requirements" means, for any LIBOR Advance, the maximum
reserves (whether basic, supplemental, marginal, emergency, or otherwise)
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) with respect to liabilities or assets consisting of or
including "Eurocurrency liabilities" (as defined in Regulation D of the
Board of Governors of the Federal Reserve System) having a term equal to
the term of such Advance;
"Line Facility" means the line of credit held available by Bank for
Company evidenced by this note, together with all extensions, renewals,
amendments, restatements, and substitutions thereof or therefor, the
provisions of which are hereby incorporated by reference as if fully
rewritten herein;
"Maturity Date" means the earlier of (a) the date all Obligations
evidenced by this note become due and payable or (b) (1) with respect to
any Prime Advance, June 30, 1997, and (2) with respect to any LIBOR
Advance, the earlier of (i) June 30, 1997 or (ii) the date selected by
Company that ends one, two or three months after the date of the making of
such Advance;
"Obligation" means any present or future obligation, indebtedness, or
liability of Company for the Buckeye Division owed to Bank of whatever
kind and however evidenced, together with all extensions, renewals,
amendments, restatements and substitutions thereof or therefor (including,
without limitation, any evidenced by this note or the Line Facility);
5
"Prime Advance" means any Advance that bears interest determined with
reference to the Prime Rate;
"Prime Rate" means that interest rate established from time to time by
Bank as Bank's Prime Rate, whether or not such rate is publicly announced.
The Prime Rate may not be the lowest interest rate charged by Bank for
commercial or other extensions of credit;
"Qualified Account Receivable" means any account receivable generated by
the Buckeye Division which, at all times until it is collected in full,
continuously meets the following requirements:
(a) is not subject to any claim for credit, allowance, or adjustment by
the account debtor or any set off or counter claim,
(b) arose in the ordinary course of the business of the Buckeye Division
from the performance (fully completed) of services or bona fide sale
of goods which have been shipped to the account debtor, and not more
than ninety (90) days have elapsed since the performance (fully
completed) of services or the sale of goods for or to the account
debtor,
(c) no notice of the financial impairment of the account debtor has been
received by Company,
(d) is not subject to an assignment, pledge, claim, mortgage, lien, or
security interest of any type except that granted to or in favor of
Bank,
(e) account debtor has not rejected, returned, revoked acceptance of, or
refused to accept any of the goods which are the subject of the
account receivable,
(f) Company has not received any instrument or chattel paper with
respect to or in payment of the account receivable, and
(g) Bank has not determined that the account receivable is
unsatisfactory in any respect;
"Qualified Inventory" means all Inventory allocated to the Buckeye
Division, except Inventory which is:
(a) located outside the United States;
(b) in the possession of a bailee or a third party;
(c) work in process;
(d) damaged, defective, or obsolete;
(e) held by Company or a third party on consignment; or
(f) Bank has determined that the Inventory is unsatisfactory in
any respect;
"Reserve Adjusted LIBOR Rate" means, with respect to any LIBOR Advance,
the rate per annum (rounded upwards to the next higher whole multiple of
1/16% if such rate is not such a multiple) equal to the quotient of (a)
the rate per annum (rounded upwards to the next higher whole multiple of
1/16% if such rate is not such a multiple) at which deposits in United
States dollars are offered at 11:00 a.m. (London, England time) (or as
soon thereafter as is reasonably practicable) by prime banks in the London
interbank eurodollar market 2 Business Days prior to the day such Advance
is made in an amount and with a maturity comparable to the amount and
maturity of such Advance, divided by (b) a number equal to 1.00 minus the
aggregate (without duplication) of the rates (expressed as a decimal
fraction) of the LIBOR Reserve Requirements current on the date 2 Business
Days prior to the day such Advance is made;
6
"UCC" means the Ohio Uniform Commercial Code, as amended.
Company, to the extent permitted by law, waives any right to have a jury
participate in resolving any dispute, whether sounding in contract, tort, or
otherwise, between Bank and Company arising out of, in connection with, related
to, or incidental to the relationship established between Company and Bank in
connection with this note or any other agreement, instrument or document
executed or delivered in connection therewith or the transactions related
thereto. This waiver shall not in any way affect, waive, limit, amend or
modify Bank's ability to pursue remedies pursuant to any confession of judgment
or cognovit provision contained in this note, or any other agreement,
instrument or document related thereto.
WARNING: BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER
FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE
AGREEMENT, OR ANY OTHER CAUSE.
COMPANY: PUBCO CORPORATION
By:________________________________
Title:_____________________________
And:_______________________________
Title:_____________________________
ADDRESS: 0000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
7
AMENDED AND RESTATED SETURITY AGREEMENT
ACCOUNTS RECEIVABLE AND INVENTORY
WHEREAS, Ribbons, Inc. executed and delivered to Ameritrust Company
National Association ("Ameritrust") a Promissory Grid Note dated June 2, 1986,
in the maximum principal amount of Three Million Five Hundred Thousand Dollars
($3,500,000) ("Original Note");
WHEREAS, as security for the indebtedness evidenced by the Original
Note, Ribbons, Inc. executed a certain Security Agreement in favor of
Ameritrust dated May 28, 1985, as amended by an Amendment to Security
Agreement dated June 2, 1986 and an Amendment to Security Agreement dated
August 5, 1993 (as amended, the "Original Security Agreement");
WHEREAS, Buckeye Business Products, Inc. is successor by a series of
mergers and name changes to Ribbons, Inc.;
WHEREAS, PUBCO CORPORATION ("Company") is successor by merger to Buckeye
Business Products, Inc. and KEYBANK NATIONAL ASSOCIATION (formerly known as
Society National Bank) ("Bank") is successor by merger to Ameritrust; and
WHEREAS, Company executed an Amended and Restated Master Promissory Note
on even date herewith in the maximum principal amount of Two Million Five
Hundred Thousand Dollars ($2,500,000) to reflect the changes agreed to by the
Company and Bank.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the Company and Bank hereby mutually agree that
the Original Security Agreement shall be restated in its entirety as follows:
On this ________ day of ______________, 1996, Borrower and Bank, in
consideration of the premises, and the covenants and agreements contained
herein, hereby mutually agree as follows:
1. DEFINITIONS
"Account", "Chattel Paper", "Consumer Goods", "Deposit Account", "Document",
"Farm Products", "General Intangible", "Goods", "Instrument", and "Proceeds,
have the meanings as set forth in Ohio Revised Code Sections 1309.01-1309.50
inclusive, including any amendments thereof and any substitutions therefor,
which definitions are hereby incorporated by reference as though fully
rewritten herein.
"Account Debtor" means the Person who is obligated on an Account Receivable.
8
"Account Receivable" means:
(a) any account receivable, Account, Chattel Paper, General
Intangible, Document, or Instrument owned, acquired, or received
by Borrower's Buckeye Business Products, Inc. division (the
"Buckeye Division),
(b) any other indebtedness owed to or receivable owned, acquired, or
received by the Buckeye Division of whatever kind and however
evidenced, and
(c) any right, title, and interest in the Buckeye Division's Goods
which were sold, leased, or furnished by the Buckeye Division and
gave rise to either (a) or (b) above, or both of them. This
includes, without limitation,
(1) any rights of stoppage in transit of a Person's sold,
leased, or furnished Goods,
(2) any rights to reclaim a Person's sold, leased, or furnished
Goods, and
(3) any rights a Person has in such sold, leased, or furnished
Goods that have been returned to or repossessed by that
Person.
"Accounts Receivable Collection Account" means a commercial Deposit Account
maintained with Bank for the Buckeye Division by Borrower, without liability
by Bank to pay interest thereon, from which account Bank shall have the
exclusive right to withdraw funds until all Obligations are paid, performed,
and observed in full.
"Bank" means KEYBANK NATIONAL ASSOCIATION, a national banking association
whose principal office is located at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000.
"Borrower" means PUBCO CORPORATION, a corporation incorporated under the laws
of the State of Delaware.
"Borrower's Location" means the location of:
(a) The Buckeye Division's place of business, if there is only one
such place of business, or
(b) if there is more than one place of business, the place (1) from
which the Buckeye Division manages the main part of its business
operations, and (2) where Persons dealing with the Buckeye
Division would normally look for credit information.
"Cash Security" means all cash, Instruments, Deposit Accounts, and other cash
equivalent, whether matured or unmatured, whether collected or in the process
of collection, upon which the Buckeye Division presently has or may hereafter
have any claim, that are presently or may hereafter be existing or maintained
with, issued by, drawn upon, or in the possession of Bank.
9
"Collateral" means:
(a) all of the Accounts Receivable generated by the Buckeye Division,
whether now owned or hereafter acquired or received,
(b) all of the Inventory allocated to the Buckeye Division, whether
now owned or hereafter acquired,
(c) all of the Cash Security allocated to the Buckeye Division, and
(d) all of the Proceeds, products, profits, and rents of the
Collateral listed in paragraphs (a), (b) and (c) above.
"Event of Default" means the occurrence of any of the events set forth in
Section 7 of the Security Agreement.
"Financial Impairment" means the distressed economic condition of a Person
manifested by any one or more of the following events:
(a) bankruptcy or insolvency of the Person;
(b) the Person ceases, is unable, or admits in writing its inability,
to make timely payment upon the Person's debts, obligations, or
liabilities as they mature or come due;
(c) general assignment by the Person for the benefit of creditors;
(d) Person entering into any composition or arrangement with the
creditors;
(e) proceedings are instituted by or against a Person for the
appointment of any receiver, trustee, or liquidator (1) of or for
the Person or (2) of or for all or any substantial part of the
Person's property;
(f) proceedings are authorized or instituted by or against a Person
under any bankruptcy, reorganization, readjustment of debt,
insolvency, dissolution, liquidation, or other similar law of any
jurisdiction.
"Inventory" means:
(a) any inventory allocated to the Buckeye Division,
(b) all Goods allocated to the Buckeye Division that are raw
materials,
(c) all Goods allocated to the Buckeye Division that are work in
process,
(d) all Goods allocated to the Buckeye Division that are materials
used or consumed in the ordinary course of a Person's business,
10
(e) all Goods allocated to the Buckeye Division that are, in the
ordinary course of a Person's business, held for sale or lease or
furnished or to be furnished under contracts of service, and
(f) all substitutes and replacements for, and parts, accessories,
additions, attachments, or accessions to (a) to (e) above.
"Obligations" means any of the following obligations, whether direct or
indirect, absolute or contingent, secured or unsecured, matured or unmatured,
originally contracted with Bank or another Person, and now or hereafter owing
to or acquired in any manner partially or totally by Bank or in which Bank may
have acquired a participation, contracted by the Buckeye Division alone or
jointly or severally with another Person:
(a) any and all indebtedness, obligations, liabilities, contracts,
indentures, agreements, warranties, covenants, guaranties,
representations, provisions, terms, and conditions of whatever
kind, now existing or hereafter arising, and however evidenced,
that are now or hereafter owed, incurred, or executed by the
Buckeye Division to, in favor of, or with Bank (including, without
limitation, those as are set forth or contained in, referred to,
evidenced by, or executed with reference to, the Security
Agreement, the Promissory Note, any letter of credit agreements,
advance agreements, indemnity agreements, guaranties, lines of
credit, mortgage deeds, security agreements, assignments, pledge
agreements, hypothecation agreements, Instruments, and acceptance
financing agreements), and including any partial or total
extension, restatement, renewal, amendment, and substitution
thereof or therefor;
(b) any and all claims of whatever kind of Bank against the Buckeye
Division, now existing or hereafter arising, including, without
limitation, any arising out of or in any way connected with
warranties made by the Buckeye Division to Bank in connection with
any Instrument deposited with or purchased by Bank;
(c) any and all of Bank's Related Expenses.
"Organization" and "Person" have the meanings as set forth in Ohio Revised
Code Section 1301.01, including any amendments thereof and any substitutions
therefor, which definitions are hereby incorporated by reference as though
fully rewritten herein.
"Promissory Note" means the Amended and Restated Promissory Note of even date
herewith in the aggregate amount of Two Million Five Hundred Thousand Dollars
($2,500,000), and including any partial or total amendment, renewal,
restatement, extension, or substitution of or for such note.
"Related Expenses" means any and all costs, liabilities, and expenses
(including, without limitation, losses, damages, penalties, claims, actions,
reasonable attorney's fees, legal expenses, judgments, suits, and
disbursements) incurred by, imposed upon, or asserted against, Bank in any
attempt by Bank:
11
(a) to obtain, preserve, perfect, or enforce the security interest
evidenced by (i) the Security Agreement, or (ii) any other pledge
agreement, mortgage deed, hypothecation agreement, guaranty,
security agreement, assignment, or security instrument executed or
given by the Buckeye Division to or in favor of Bank,
(b) to obtain payment, performance, and observance of any and all of
the Obligations,
(c) to maintain, insure, collect, preserve, or upon any Event of
Default, repossess and dispose of any of the Collateral, or
(d) incidental or related to (a) through (c) above, including, without
limitation, interest thereupon from the date incurred, imposed, or
asserted until paid at the rate payable upon the Promissory Note,
but in no event greater than the highest rate permitted by law.
"Security Agreement", means this agreement between Borrower and Bank, and
including any partial or total amendment, renewal, restatement, extension, or
substitution of or for such agreement.
2. SECURITY INTEREST IN COLLATERAL
In consideration of and as security for the full and complete payment,
performance, and observance of all Obligations, Borrower does hereby (a) grant
to Bank a security interest in the Collateral, and (b) assign to Bank all of
its right, title, and interest (including, without limitation, all rights to
payment) arising under or with respect to all of the Accounts Receivable,
whether now owned or hereafter acquired or received by Borrower, but not
including any duty, obligation, or liability of Borrower with respect thereto.
3. WARRANTIES
Borrower represents and warrants to Bank (which representations and warranties
shall survive the execution and delivery of the Promissory Note, and the
extension of credit) that:
(a) The execution, delivery, and performance hereof are within
Borrower's corporate powers, have been duly authorized, and are
not in contravention of law or the terms of Borrower's charter,
by-laws, or regulations, or of any indenture, agreement, or
undertaking to which Borrower is party or by which it is or may be
bound;
(b) Except for any security interest granted to or in favor of Bank,
Borrower is, and as to Collateral to be acquired after the date
hereof will be, the owner of the Collateral free from any claim,
lien, encumbrance, or security interest of any type, and Borrower
agrees that it will defend, at its sole expense, the Collateral
against all claims and demands of all Persons at any time claiming
the same or any interest therein;
(c) Subject to any limitation stated herein or in connection herewith,
all information furnished to Bank concerning Borrower or the
12
Collateral, is or will be at the time such information is
furnished, accurate and correct in all material respects and
complete insofar as is necessary to give Bank true and accurate
knowledge of the subject matter;
(d) Borrower is the lawful owner of and has full and unqualified right
to transfer a security interest in all of the Collateral to Bank.
Such Collateral is not and will not, so long as Borrower has any
obligations to Bank, be subject to any financing statement,
encumbrance, claim, lien, or security interest of any type except
any granted to or in favor of Bank;
(e) Borrower's Location is 0000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000.
4. COVENANTS
Borrower undertakes, covenants, and agrees that, until the full and complete
payment, performance, and observance of all Obligations, Borrower:
(a) shall promptly provide Bank with prior written notification of:
(1) any change in any location where the Buckeye Division's
Inventory is maintained, and any new locations where the
Buckeye Division's Inventory is to be maintained,
(2) the location of any new places of business and the changing
or closing of any of its existing places of business,
(3) any change in Borrower's name, and
(4) any change in the Buckeye Division's Location;
(b) shall at all reasonable times allow Bank by or through any of its
officers, agents, employees, attorneys, or accountants to:
(1) examine, inspect, and make extracts from Borrower's books
and other records,
(2) examine and inspect the Inventory wherever located, and
(3) arrange for verification of the Accounts Receivable, under
reasonable procedures, directly with Account Debtors or by
other methods;
(c) shall promptly furnish to Bank upon request:
(1) additional information and statements with respect to the
Collateral,
(2) Borrower's Instruments, Chattel Paper, Documents, and any
other writings relating to or evidencing any of the Accounts
Receivable (including, without limitation, computer
printouts or typewritten reports listing the current mailing
address of all present Account Debtors), and
(3) any other writings and information Bank may reasonably
request;
(d) shall upon request of Bank promptly take such action and promptly
make, execute, and deliver all such additional and further items,
deeds, assurances, and instruments as Bank may require, including,
without limitation, financing statements, so as to completely vest
in and ensure to Bank its rights hereunder and in and to the
Collateral;
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(e) if any of the Accounts Receivable arise out of contracts with or
orders from the United States or any of its departments, agencies,
or instrumentalities, shall immediately notify Bank in writing of
same and shall execute any writing or take any action required by
Bank with reference to the Federal Assignment of Claims Act;
(f) hereby authorizes Bank or Bank's designated agent (but without
obligation by Bank to do so) to incur Related Expenses (whether
prior to, upon, or subsequent to any Event of Default), and
Borrower shall promptly repay, reimburse, and indemnify Bank for
any and all Related Expenses;
(g) shall not, without the prior written consent of Bank grant any
consensual or permit to exist any material non-consensual
mortgage, encumbrance, security interest, or other lien upon any
Collateral except any granted to or in favor of Bank;
(h) shall not use any Collateral in violation of any applicable
statute, ordinance, or regulation.
5. COLLECTIONS AND RECEIPT OF PROCEEDS
(a) Upon the occurrence of any Event of Default, after written
notification thereof to Borrower, Bank, or Bank's designated
agent, shall have the right and power (as Borrower's hereby
constituted and appointed attorney-in-fact), which, being coupled
with an interest, shall remain irrevocable until all Obligations
are fully and completely paid, performed, and observed, at any
time to:
(1) notify the Account Debtors on any or all of the Accounts
Receivable of the Bank's security interest in and assignment
of those Accounts Receivable upon which the respective
Account Debtors are liable, and to request from such Account
Debtors, in Bank's name or in the Buckeye Division's or
Borrower's name, information concerning the Accounts
Receivable and amounts owing thereon,
(2) notify purchasers of any or all of the Inventory of Bank's
security interest therein, and to request from such Persons,
at any time, in Bank's name or in the Buckeye Division's or
Borrower's name, information concerning the Inventory and
the amounts owing thereon by such purchasers,
(3) notify and require the Account Debtors on any or all of the
Accounts Receivable to make payment upon such Accounts
Receivable directly to Bank,
(4) notify and require purchasers of the Inventory to make
payment of their indebtedness directly to Bank,
(5) receive, retain, acquire, take, endorse, assign, deliver,
accept, and deposit, in Bank's name, the Buckeye Division's
name or the Borrower's name, any and all of the Buckeye
Division's cash, Instruments, Chattel Paper, Documents,
Proceeds of Accounts Receivable, Proceeds of Inventory,
collections of Accounts Receivable, and any other writings
relating to any of the Collateral theretofore collected,
received or retained by Borrower pursuant to Subsection 5(b)
below or thereafter collected, received, or retained by
Borrower,
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(6) exercise any and all of the rights granted Bank in
Subsections 5(c) and 5(d) below, and
(7) take such other action with respect to any or all of the
Collateral, in such manner and at such times, as Bank may
deem advisable, including, without limitation, the
following: collection, legal proceedings, compromises,
settlements, adjustments, extensions, postponements,
exchanges, releases, and sales.
(b) Except as otherwise provided in Subsections 5(a), 5(c), or 5(d),
Borrower is authorized (1) to collect and enforce, by all lawful
means, all of the Accounts Receivable, and (2) to receive and
retain, by all lawful means, any and all Proceeds of all of the
Accounts Receivable and Inventory. Borrower shall hold, as trustee
upon an express trust for Bank as beneficiary thereof, all such
lawful collections of Accounts Receivable and all such lawful
Proceeds of Accounts Receivable and Inventory received by Borrower.
Any costs, liabilities, or expenses incurred by Borrower in the
collection or enforcement of such Accounts Receivable, and in the
receipt of Proceeds of Accounts Receivable and Inventory shall be
borne solely by Borrower. Borrower as trustee shall not commingle
such collections of Accounts Receivable and such Proceeds of
Accounts Receivable and Inventory with any other property not held
in trust for Bank; any property held or commingled with such
collections of Accounts Receivable and such Proceeds of Accounts
Receivable and Inventory is hereby conclusively established between
Borrower and Bank to be collections of Accounts Receivable and
Proceeds of Accounts Receivable and Inventory.
(c) With respect to the Buckeye Division's Instruments, Documents,
and Chattel Paper:
(1) Upon Bank's written request, Borrower shall immediately
deliver or cause to be delivered to Bank all of the Buckeye
Division's Instruments, Chattel Paper, and Documents,
appropriately endorsed either, at Bank's option, (i) to
Bank's order, without limitation or qualification, or (ii)
for deposit in the Accounts Receivable collection Account.
Bank, or Bank's designated agent, is hereby constituted and
appointed Borrower's attorney-in-fact with authority and
power to so endorse any and all Instruments, Documents, and
Chattel Paper upon Borrower's failure to do so. Such
authority and power, being coupled with an interest, shall
be (i) irrevocable until all Obligations are paid,
performed, and observed in full, (ii) exercisable by Bank at
any time and without any request upon Borrower by Bank to so
endorse, and (iii) exercisable in Bank's name or Borrower's
name;
(2) Borrower hereby waives presentment, demand, notice of
dishonor, protest, notice of protest, and any and all other
similar notices with respect thereto, regardless of the form
of any endorsement thereof;
(3) Bank shall not be bound or obligated to take any action to
preserve any rights therein against any prior parties
thereto.
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(d) Upon Bank's written request, the lawful collection and enforcement
of all of the Accounts Receivable and the lawful receipt and
retention by Borrower of all Proceeds of all of the Accounts
Receivable and Inventory shall be as Bank's agent. All such
collections and Proceeds shall be remitted daily by Borrower to
Bank in the form in which they are received by Borrower, either by
mailing or by delivering such collections and Proceeds to Bank,
appropriately endorsed for deposit in the Accounts Receivable
Collections Account. Bank may, in its sole discretion, at any
time and from time to time, apply all or any portion of the
collected balance in the Accounts Receivable Collections Account
(allowing one (1) day for collection and clearance of remittances)
as a credit against the Obligations. If any remittance shall be
dishonored, or if, upon final payment, any claim with respect
thereto shall be made against Bank on its warranties of
collection, Bank may charge the amount of such item against the
Accounts Receivable Collections Account or any other Deposit
Account maintained by Borrower with Bank, and, in any event,
retain same and Borrower's interest therein as additional security
for the Obligations. Bank may, in its sole discretion, at any
time and from time to time, release funds from the Accounts
Receivable Collections Account to Borrower for use in the Buckeye
Divsion's business. The balance in the Accounts Receivable
Collections Account may be withdrawn by Borrower upon termination
of the Security Agreement in accordance with Subsection 9(d). At
Bank's written request, Borrower will cause all remittances
representing all collections and all Proceeds of the Accounts
Receivable and Inventory to be mailed to a lock box in Cleveland,
Ohio, to which Bank shall have access for the processing of such
items in accordance with the provisions, terms, and conditions of
Bank's customary lock box agreement.
6. INSURANCE AND USE OF INVENTORY
(a) Until any Event of Default:
(1) Borrower may retain possession of and use the Inventory in
any lawful manner not inconsistent with any applicable
terms, conditions, and provisions of:
(i) the Security Agreement, and
(ii) any insurance policy thereon.
(2) Borrower may sell or lease the Inventory in the ordinary
course of business; provided, however, that a sale or lease
in the ordinary course of business does not include a
transfer in partial or total satisfaction of a debt, except
for transfers in satisfaction of partial or total purchase
money prepayments by a buyer in the ordinary course of
Borrower's business. Until any Event of Default, Borrower
may also use and consume any raw materials or supplies, the
use and consumption of which are necessary in order to carry
on the Buckeye Division's business.
(b) Borrower shall obtain, and at all times maintain, insurance upon
the Inventory in such form, written by such companies, in such
amounts, for such period, and against such risks as may be
16
acceptable to Bank, with provisions satisfactory to Bank for
payment of all losses thereunder to Bank and Borrower as their
interests may appear (loss payable endorsement in favor of Bank),
and, if required by Bank, Borrower will deposit the policies with
Bank. Any such policies of insurance shall provide for no less
than ten (10) days prior written cancellation notice to Bank. Any
sums received by Bank in payment of insurance losses, returns, or
unearned premiums under the policies may, at the option of Bank, be
applied upon any Obligation whether or not the same is then due and
payable, or may be delivered to Borrower for the purpose of
replacing, repairing, or restoring its Inventory. Borrower hereby
assigns to Bank any return or unearned premium which may be due
upon cancellation of any such policies for any reason and directs
the insurers to pay Bank any amount so due. Bank, or Bank's
designated agent, is hereby constituted and appointed Borrower's
attorney-in-fact (either in the name of the Buckeye Division,
Borrower or in the name of the Bank) to make adjustments of all
insurance losses, sign all applications, receipts, releases, and
other papers necessary for the collection of any such loss, and any
return of unearned premium, execute proof of loss, make
settlements, and endorse and collect all Instruments payable to the
Buckeye Division, Borrower or issued in connection therewith.
Notwithstanding any action by Bank hereunder, any and all risk of
loss or damage to the Inventory to the extent of any and all
deficiencies in the effective insurance coverage thereof is hereby
expressly assumed by Borrower.
7. EVENTS OF DEFAULT
Upon the occurrence of any one or more of the following Events of Default, any
and all Obligations shall, at the option of Bank and notwithstanding any
period of time permitted or allowed by any writing evidencing an Obligation,
become immediately due and payable without notice, demand, protest, or
presentment, all of which are hereby expressly waived by Borrower:
(a) Failure of Borrower to promptly pay, perform, or observe when due,
whether upon demand, at maturity, by acceleration, or otherwise,
any of the Obligations;
(b) Failure of Borrower to promptly pay, perform, satisfy, or observe
when due, whether upon demand, at maturity, by acceleration, or
otherwise, or any event which either results in or would result in
(but for waiver by the holder(s) or trustee(s) thereof) the
acceleration of the maturity of, any or all of the indebtedness,
obligations, liabilities, contracts, indentures, and agreements
(including, without limitation, any and all warranties, covenants,
guaranties, provisions, terms, and conditions set forth or contained
therein) of whatever kind and however evidenced, owed, incurred, or
executed by Borrower, to, in favor of, or with any and all other
Persons, and including any partial or total extension, renewal,
amendment, restatement, and substitution thereof or therefor;
17
(c) Any material warranty, representation, or statement made or
furnished to Bank in connection with the Security Agreement,
Promissory Note, or any other writing evidencing or given as
security for any of the Obligations by or on behalf of the
Borrower proves to have been false in any material respect when
made, furnished, or at any time thereafter;
(d) Bank shall deem itself insecure in good faith believing that the
prospect of payment, performance, or observance of any of the
Obligations herein secured is impaired;
(e) Loss, damage, theft, destruction, levy, seizure, or attachment to,
of, or upon any material amount of the Collateral, including any
attempt to accomplish the foregoing;
(f) Sale, lease, transfer, assignment, encumbrance, or other
disposition of any material amount of the Collateral other than in
the ordinary course of business, without Bank's prior written
authorization therefor, including any attempt to accomplish the
foregoing;
(g) Financial Impairment of Borrower;
(h) Financial Impairment of any endorser, guarantor, or surety upon or
for any of the Obligations.
8. RIGHTS AND REMEDIES UPON EVENT OF DEFAULT
Upon the occurrence of any such Event of Default and at all times thereafter,
Bank shall have the rights and remedies of a secured party under the Ohio
Uniform Commercial Code in addition to the rights and remedies provided
elsewhere within the Security Agreement or in any other writing executed by
Borrower. Bank may require Borrower to assemble the Collateral and make it
available to Bank at a reasonably convenient place to be designated by Bank.
Unless the Collateral is perishable, threatens to decline speedily in value,
or is of a type customarily sold on a recognized market, Bank will give
Borrower reasonable notice of the time and place of any public sale of the
Collateral or of the time after which any private sale or other intended
disposition thereof is to be made. The requirement of reasonable notice shall
be met if such notice is mailed (deposited for delivery, postage prepaid, by
U.S. mail) to either, at Bank's option, (1) Borrower's Location set forth in
Subsection 3(e) of the Security Agreement (as modified by any change therein
which Borrower has supplied in writing to Bank) or (2) Borrower's address at
which Bank customarily communicates with Borrower, at least ten (10) days
before the time of the public sale or the time after which any private sale or
other intended disposition thereof is to be made. At any such public or
private sale, Bank may purchase the Collateral. After deduction for Bank's
Related Expenses, the residue of any such sale shall be applied in
satisfaction of the obligations in such order of preference as Bank may
determine. Any excess, to the extent permitted by law, shall be paid to
Borrower, and Borrower shall remain liable for any deficiency.
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9. GENERAL
(a) If any provision, term, or portion, of the Security Agreement,
(including, without limitation, (1) any indebtedness, obligation,
liability, contract, agreement, indenture, warranty, covenant,
guaranty, representation, or condition of the Security Agreement
made, assumed, or entered into, (2) any act or action taken under
the Security Agreement, or (3) any application of the Security
Agreement) is for any reason held to be illegal or invalid, such
illegality or invalidity shall not affect any other such
provision, term, or portion of the Security Agreement, each of
which shall be construed and enforced as if such illegal or
invalid provision, term, or portion were not contained in the
Security Agreement. Any illegality or invalidity of any
application of the Security Agreement shall not affect any legal
and valid application of the Security Agreement, and each
provision, term, and portion of the Security Agreement shall be
deemed to be effective, operative, made, entered into, or taken in
the manner and to the full extent permitted by law.
(b) Bank shall not be deemed to have waived any of Bank's rights
hereunder or under any other writing executed by Borrower unless
such waiver be in writing and signed by Bank. No delay or
omission on part of Bank in exercising any right shall operate as
a waiver of such right or any other right. A waiver on any one
occasion shall not be construed as a bar to or waiver of any right
or remedy on any future occasion. All Bank's rights and remedies,
whether evidenced hereby or by any other writing shall be
cumulative and may be exercised singularly or concurrently. Any
written demands, written requests, or written notices to Borrower
that Bank may elect to give shall be effective when deposited for
delivery, postage prepaid, by U.S. mail, and addressed either, at
Bank's option, to (1) Borrower's Location set forth in Subsection
3(e) of the Security Agreement (as modified by any change therein
which Borrower has supplied in writing to Bank) or (2) Borrower's
address at which Bank customarily communicates with Borrower. If
at any time or times, by assignment or otherwise, Bank transfers
any of the Obligations or any part of the Collateral to another
person, such transfer shall carry with it Bank's powers and rights
under this Agreement with respect to the obligation or Collateral
so transferred and the transferee shall have said powers and
rights, whether or not they are specifically referred to in the
transfer. To the extent that Bank retains any other of the
Obligations or any part of the Collateral, Bank will continue to
have the rights and powers herein set forth with respect thereto.
19
(c) The laws of the State of Ohio, without regard to principles of
conflict of laws, shall govern the construction of the Security
Agreement (including, without limitation, any terms not specifically
defined in the Security Agreement that may be so specifically defined
pursuant to Ohio Revised Code Sections 1309.01-1309.50 inclusive, and
including any amendments thereof or any substitution therefor) and
the rights and duties of the parties hereto. The Security Agreement
contains the entire agreement between the parties hereto and no oral
agreement shall be binding. Borrower agrees that Bank may make a
photocopy of the Security Agreement in the ordinary course of
business and such photocopy may be used in place of the original of
the Security Agreement. A carbon, photographic or other reproduction
of the Security Agreement may be used as a financing statement. The
Security Agreement shall be binding upon and inure to the benefit of
Borrower and Bank and their respective successors and assigns. The
rights and powers herein given to the Bank are in addition to those
otherwise created or existing in the same Collateral by virtue of
other agreements or writings.
(d) The term of the Security Agreement shall commence with the date
hereof and shall continue until terminated by either Borrower or
Bank. Borrower may terminate the Security Agreement by giving
Bank not less than thirty (30) days prior written notice thereof
and by paying, performing, and observing all of the Obligations in
full on or before such termination date.
(e) In the Security Agreement, unless the context otherwise requires,
words in the singular number include the plural and words in the
plural number include the singular.
(f) Borrower hereby releases Bank from and agrees to indemnify and
hold harmless Bank, and its officers, agents, and employees for
any and all claims of Borrower for damage or loss caused by any
act or acts hereunder or in furtherance hereof whether by omission
or commission, and whether based upon any error of judgment or
mistake of law or fact (except willful misconduct) on the part of
Bank, or its officers, agents, and employees.
(g) Bank has the right, in addition to all other rights and remedies
available to it, to set off at any time the unpaid balance of the
Promissory Note and any other obligations against any indebtedness
owing the Buckeye Division by Bank, including, without limitation,
all Cash Security.
(h) Bank is hereby authorized to fill in all blank spaces herein, to
correct patent errors herein, to complete or correct the
description of the Collateral, and to date the Security Agreement.
(i) Except as expressly authorized in the Security Agreement, Bank's
right to Proceeds specifically set forth herein or indicated in any
financing statement shall never constitute an express or implied
authorization on the part of Bank to Borrower's sale, exchange,
collection, or other disposition of any or all of the Collateral.
20
BORROWER, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY RIGHT TO HAVE A
JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT,
OR OTHERWISE, BETWEEN BANK AND BORROWER ARISING OUT OF, IN CONNECTION WITH,
RELATING TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN
CONNECTION WITH THE SECURITY AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH OR THE
TRANSACTIONS RELATED THERETO. THIS WAIVER SHALL NOT IN ANY WAY AFFECT, WAIVE,
LIMIT, AMEND OR MODIFY BANK'S ABILITY TO PURSUE REMEDIES PURSUANT TO ANY
CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED IN ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED AND DELIVERED BY BORROWER TO BANK."
IN WITNESS WHEREOF, the parties hereto have caused the security
agreement to be executed on the day and year first above written.
BORROWER: PUBCO CORPORATION
By:_________________________________
Title:_______________________________
And:_______________________________
Title:_______________________________
BANK: KEYBANK NATIONAL ASSOCIATION
By:_______________________________
Title:______________________________
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