EXHIBIT 10.4
XXXXXXXXX & XXXXXXXXX, INC.
Financing Agreement
AGREEMENT dated March 27, 2000 between XXXX ELECTRIC INC. ("Borrower"), a
corporation duly organized and presently existing in good standing under the
laws of the State of New Jersey whose chief executive office is at 00-00 Xxxxx
Xxxxxx, Xxxx Xxxx, XX 00000, and XXXXXXXXX & XXXXXXXXX, INC. ("Lender"), a New
York corporation with an address at 0000 Xxxxxxxx, Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
Borrower desires to obtain loans and other financial accommodations from
Lender on a revolving basis upon the security of the "Collateral" as herein
defined. Now, therefore, Borrower and Lender agree as follows.
Section I DEFINITIONS
As used in this Agreement, these terms shall have the following meanings
which shall be applicable to both the singular and plural forms of such terms.
1.1 "Account Debtor" shall mean the account debtor with respect to a
Receivable and any other person who is obligated on such Receivable.
1.2 "Advance Percentage" shall mean the percentage specified in Section
2.1 hereof.
1.3 "Affiliate" of a party shall mean any entity controlling, controlled
by, or under common control with, the party, and the term "controlling" and
such variations thereof shall mean ownership of a majority of the voting power
of a party.
1.4 "Business Day" shall mean a day on which Lender and ma or banks in
New York City are open for the regular transaction of business.
1.5 "Consolidated Basis" shall mean the consolidation in accordance with
generally accepted accounting principles, practices and procedures of assets
and liabilities or other items of Borrower and XXXX INDUSTRIES, INC. ("XXXX")
1.6 "Default" shall have the meaning provided in Section 8.1 hereof.
1.7 "Effective Rate" shall have the meaning provided in Section 3.1
hereof.
1.8 "Eligible Receivables" shall mean Receivables created by Borrower in
the regular course of its business which are and at all times shall continue
to be acceptable to Lender in all respects. Standards of eligibility may be
fixed and revised from time to time solely by Lender in its exclusive
judgment. In determining eligibility Lender may, but need not, rely on
ageings, reports and Schedules of Receivables furnished by Borrower, but
reliance thereon by Lender from time to time shall not be deemed to limit
Lender's right to revise standards of eligibility at any time. In general, a
Receivable shall not be deemed eligible unless the Account Debtor of such
Receivable is and at all times continues to be acceptable to Lender and unless
each Receivable complies in all respects with the representations, covenants
and warranties hereinafter set forth.
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1.9 "Eligible Inventory" shall mean Inventory owned by Borrower in the
regular course of its business which is and at all times shall continue to be
acceptable to Lender in all respects. Standards of eligibility may be fixed
and revised from time to time solely by Lender in its exclusive judgment. In
determining eligibility, Lender may, but need not, rely on certificates of
inventory and reports furnished by Borrower, but reliance thereon by Lender
from time to time shall not be deemed to limit Lender's right to revise
standards of eligibility at any time. In general, Inventory shall not be
deemed eligible unless it complies in all respects with the representations,
covenants and warranties hereinafter set forth, made by Borrower with respect
thereto.
1.10 "GAAP" shall mean generally accepting accounting principles in the
United States of America as in effect from time to time as set forth in the
opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified public Accountants and the elements and
pronouncements of the Financial Accounting Standards Board which are
applicable to the circumstances as of the date of determination consistently
applied.
1.11 "Inventory" shall mean inventory as defined in the inventory
Security Agreement executed by Borrower in favor of Lender.
1.12 "Loan Account" shall mean the Loan Account as described in Section
2.1 hereof.
1.13 "Line of Credit" shall mean the total available amount of advances
on any basis up to the amount specified in Section 2.1 hereof.
1.14 "Loan Account" shall mean the Loan Account as described in Section
2.1 hereof.
1.15 "Margin" shall mean two and one quarter percent (2.25%) per annum.
1.16 "Maximum Rate" shall have the meaning provided in Section 9.2
hereof.
1.17 "Net Amount of Eligible Receivables" shall mean the gross amount of
Eligible Receivables less sales, excise or similar taxes, returns, discounts,
claims, credits and allowances of any nature at any time issued, owing,
granted, outstanding or claimed, and less (without duplication) all amounts
payable by any Account Debtor on Eligible Receivables if any Eligible
Receivable of such Account Debtor is unpaid more than ninety (90) days
following its invoice date.
1.18 "Obligations" shall mean all obligations, liabilities and
indebtedness of Borrower to Lender or an Affiliate of Lender, however
evidenced, arising under this Agreement, under any other or supplemental
financing provided to Borrower by Lender or an Affiliate of Lender, or
independent hereof or thereof, whether now existing or incurred from time to
time hereafter and whether before or after termination hereof, absolute or
contingent, joint or several, matured or unmatured, direct or indirect,
primary, or secondary, liquidated or unliquidated, and whether arising
directly or acquired from others (whether acquired outright, by
assignment unconditionally or as collateral security from another and
including, without limitation, participations or interest of Lender in
obligations of Borrower to others), and including (without limitation) all of
Lender's charges, commissions, fees, interest, expenses, costs and attorneys'
fees chargeable to Borrower in connection therewith.
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1.19 "Over-advance " shall mean any portion of all loans and advances
which on any day exceeds the product of the Advance Percentage multiplied by
the Net Amount of Eligible Receivables.
1.20 "Prime Rate" shall mean the prime rate from time to time publicly
announced in New York City by The Chase Manhattan Bank.
1.21 "Receivables" shall mean all obligations to Borrower for the payment
of money arising out of the sale of goods or the rendering of services by
Borrower, now existing or hereafter arising, however evidenced, including
without limitation all accounts, contract rights, general intangibles,
documents, chattel paper and instruments (as each of such ten-ns is defined in
the New York Uniform Commercial Code).
1.22 "Year 2000 Compliant" shall mean that neither performance nor
functionality of any computer hardware or software is affected by dates prior
to, during or after the Year 2000. In particular: (a) no value for current
date will cause any interruption in operation; (b) date based functionality
must behave consistently for dates prior to, during and after the Year 2000;
(e) in all interfacing and data storage, the century in any date must be
specified either explicitly or by unambiguous algorithms or inferencing rules;
and (d) Year 2000 must be recognized as a leap year.
Section 2 LOANS
2.1 Lender shall, in its discretion, make loans to Borrower from time to
time, at Borrower's request, which loans in the aggregate shall not exceed (i)
the lesser of (a) $2,000,000 or (ii) an amount equal to (a) seventy five
percent (75%) of the Net Amount of Eligible Receivables which have been
validly assigned to Lender and in which Lender holds a perfected security
interest pursuant to the terms hereof ranking prior to and free and clear of
all interests, claims, and rights of others; plus (b) the lesser of (1)
$400,000 or (11) the lesser of (x) thirty-five percent (35%) of Eligible
Inventory consisting of finished goods inventory, or (Y) seventy five percent
(75%) of the appraised liquidation or auction sale value of Eligible Inventory
consisting of finished goods inventory, as determined by an appraiser
acceptable to Lender, plus (c) the lessee of (i) $375,000; or (ii) seventy
five percent (75%)of the appraised liquidation value of eligible and
unencumbered machinery, equipment, furniture and fixtures, as determined by an
appraiser acceptable to Lender. The making of any loan in excess of the
percentages set forth above shall not modify such percentage or create any
obligation to make any further such loan. All loans (and all other amounts
chargeable to Borrower under this Agreement or any supplement hereto) shall be
charged to a Loan Account in Borrower's name on Lender's books. Lender shall
render to Borrower each month a statement of the Loan Account (and all credits
and charges thereto) which shall be considered correct and accepted by
Borrower and conclusively binding upon Borrower as an account stated except to
the extent that Lender receives a written notice by registered mail of
Borrower's exceptions within 30 days after such statement has been mailed by
ordinary mail to Borrower.
Section 3 LENDER'S CHARGES
3.1 Borrower agrees to pay to Lender each month interest (computed on the
basis of the actual number of days elapsed over a year of 360 days) on the
average daily balances in the Loan Account during the preceding month at a
rate (the "Effective Rate") equal to the Prime Rate plus the Margin. The
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Effective Rate above shall increase or decrease by one-quarter of one per cent
(1/4 of 1%) per annum for each increase or decrease, respectively, of
one-quarter of one per cent (1/4 of 1%) per annum in the Prime Rate; provided,
however, that no decrease shall reduce the Effective Rate to less than the
Prime Rate plus the Margin. Any change in the Effective Rate due to a change
in the Prime Rate shall take effect on the date of such change in the Prime
Rate.
3.2 Borrower shall pay to Lender an annual facility fee in the amount of
(i) 3/4 of 1% of the Line of Credit payable at the closing date; (ii) 3/4 of
1% of the Line of Credit payable on the first anniversary of the closing date;
and (iii) 1/2 of 1% of the Line of Credit payable on each anniversary of the
closing date thereafter.
3.3 Should Lender arrange to open Letters of Credit or issue guaranties
for Borrower's account, Borrower agrees to pay Lender an amount equal to 1/2
of 1% of the face amount of such Letters of Credit or guaranties, plus an
additional 1/4 of 1% for each 30 days or portion thereof that the Letter of
Credit (or any resulting acceptance) or guaranty remains open and unpaid, plus
bank charges.
3.4 Borrower shall pay to Lender monthly an administration fee of $750.00
payable in arrears on the first day of each month with respect to the prior
month for the stated term of this Agreement.
3.5 A statement of all of Lender's charges shall accompany each monthly
statement of the Loan Account and such charges shall be payable by Borrower
within 5 days after receipt of such statement. In lieu of the separate payment
of charges, Lender at its option, shall have the right to debit the amount of
such charges to Borrower's Loan Account, which charges shall be deemed to be
first paid by amounts subsequently credited to the Loan Account. As more fully
provided in Section 9.2 hereof, in no event shall the interest charges
hereunder exceed the Maximum Rate.
Section 4 SECURITY INTEREST IN COLLATERAL
4.1 As security for the prompt performance, observance and payment in
full of all of the Obligations, Borrower grants to Lender a security interest
in, a continuing lien upon and a right of setoff against, and Borrower hereby
assigns, transfers, pledges and sets over to Lender (collectively, including
any other assets of Borrower in which Lender may be granted a security
interest, the "Collateral"): (i) all Receivables (whether or not Eligible
Receivables and whether or not specifically listed on any schedules, reports
furnished to Lender), (ii) all of Borrower's property, and the proceeds
thereof, now or hereafter held or received by or in transit to Lender or held
by others for Lender's account, including any and all deposits, balances, sums
and credits of 13orrower with, and any and all claims of Borrower against,
Lender, at any time existing, (iii) all credit insurance policies, and all
other insurance and all guarantees relating to the Receivables or other
Collateral, (iv) all books, records and other general intangibles evidencing
or relating to Receivables or other Collateral; all deposits, or other
security for the obligation of any person under or relating to Receivables,
all of the Borrower's rights and remedies of whatever kind or nature it may
hold or acquire for the purpose of securing or enforcing Receivables; all
right, title and interest of the Borrower in and to all goods relating to, or
which by ,ale have resulted in, Receivables, including goods returned by or
reclaimed or repossessed from Account Debtors and all goods described in
copies of invoices delivered by Borrower to Lender; all rights of stoppage in
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transit, replevin, repossession and reclamation and all other rights and
remedies of an unpaid vendor or licensor, and all proceeds of any Letter of
Credit naming Borrower as beneficiary and which-provides for, guarantees or
assures the payment of any Receivable; (v) all general intangibles whether or
not arising out of the sale of goods or rendition of services, and including
without limitation choses in action, causes of action, tax refunds (and
claims), and reversions from terminated pension plans; and (vi) all proceeds
of such Collateral, in any form, including, without limitation, cash, non-cash
items, checks, notes, drafts and other instruments for the payment of money.
Such security interest in favor of Lender shall continue during the term of
this Agreement and until payment in full of all Obligations, whether or not
this Agreement shall have sooner terminated.
4.2 At Lender's request, Borrower will xxxx its ledger cards, books of
account and other records relating to Receivables with appropriate notations
satisfactory to Lender disclosing that the Receivables have been assigned to
Lender and will provide Lender with confirmatory assignment schedules in form
satisfactory to Lender, copies of customers' invoices, evidence of shipment or
delivery, and such further information as Lender may require. Borrower will
take any and all steps and observe such formalities as Lender may request from
time to time to create and maintain in Lender's favor a valid and first lien
upon, security interest in and pledge of all of Borrower's Receivables and all
other Collateral, including without limitation by way of filing financing
statements and other notices and amendments and renewals thereof that may be
requested by Lender to maintain such security interest in and pledge of the
Collateral.
Section 5 CUSTODY AND INSPECTION OF COLLATERAL AND RECORDS; COLLECTION AND
HANDLING OF COLLATERAL
5.1 Until Borrower's authority so to do is terminated at any time by
notice from Lender Borrower will, at its own expense and on Lender's behalf,
collect as Lender's property and in trust for Lender all payments and
prepayments on Receivables, and shall not commingle such collections with
Borrower's own funds. As to all moneys so collected, including all prepayments
by customers, Borrower shall on the day received remit all such collections to
Lender in the form received. All amounts collected on Receivables when
received by Lender shall be credited to Borrower's Loan Account, adding three
Business Days for collection and clearance of remittances. Such credits shall
be conditional upon final payment to Lender. Nothing contained in this Section
5.1, or otherwise in the Agreement, shall be deemed to reduce Lender's rights
and powers pursuant to Section 7 of this Agreement.
5.2 All records, ledger sheets, correspondence, contracts and
documentation relating to or evidencing Receivables shall, until delivered to
Lender or removed by Lender from Borrower's premises, be kept on Borrower's
premises, without cost to Lender, in appropriate containers in safe places,
bearing suitable legends identifying them and all related files, containers,
receptacles and cabinets as being under Lender's dominion and control. Lender
shall at all reasonable times have full access to and the right to examine and
make copies of Borrower's books and records, to confirm and verify all
Receivables assigned to Lender and to do whatever else Lender deems necessary
to protect its interest. Lender may at any time remove from Borrower's
premises, or require Borrower to deliver any contracts, documentation, files
and records relating to Receivables, or Lender may, without cost or expense to
Lender, use such of Borrower's personnel, supplies and space at Borrower's
places of business as may be reasonably necessary for collection of
Receivables.
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5.3 Borrower will immediately upon obtaining knowledge thereof report to
Lender all reclaimed, repossessed or returned merchandise, Account Debtor
claims and any other matter affecting the value, enforceability or
collectibility of Receivables. Any merchandise reclaimed or repossessed by or
returned to Borrower will, at the cost and expense of Borrower, be set aside
marked with the name of the Lender and will be held by Borrower for the
account of Lender and subject to Lender's security interest. All claims and
disputes relating to Receivables are to be promptly adjusted by Borrower with
the prior approval of Lender and within a reasonable time, at its own cost and
expense. Lender may, at its option, settle, adjust or compromise claims and
disputes relating to Receivables which are not adjusted by Borrower within a
reasonable time.
5.4 Borrower shall reimburse Lender on demand for all costs of collection
incurred by Lender in efforts to enforce payment of Receivables, recovery of
or realization upon any other Collateral, including attorneys' fees and the
fees and commissions of collection agencies. All and any fees, costs and
expenses, of whatever kind and nature, including taxes of any kind, which
Lender may incur in filing public notices (including appraisal fees and
advertising costs), and the reasonable charges of any attorney whom Lender may
engage in preparing and filing documents, making title or lien examinations
and rendering opinion letters, as well as expenses incurred by Lender
(including all attorneys' fees and including Lender's out of pocket expenses
in conducting periodic field examinations of Borrower and the collateral plus
Lender's prevailing per them charge for each of its examiners office, now $750
per person per day), in protecting, maintaining, preserving, enforcing or
foreclosing the pledge, lien and security interest granted to Lender
hereunder, whether through judicial proceedings or otherwise, or enforcing or
collecting the Receivables, or recovery of or realization upon any other
Collateral, or in defending or prosecuting any actions or proceedings arising
out of or related to its transactions with Borrower, including actions or
proceedings which may involve any person asserting a priority or claim with
respect to the Collateral, shall be borne and paid for by Borrower on demand,
shall constitute part of the Obligations and may at Lender's option be charged
to Borrower's Loan Account.
Section 6 REPRESENTATIONS, COVENANTS AND WARRANTIES
As an inducement to Lender to enter into this Agreement, Borrower
represents, covenants and warrants (which shall survive the execution and
delivery of this Agreement) that:
6.1 Borrower is a corporation duly organized and presently existing in
good standing under the laws of the State of New Jersey and is duly qualified
and existing in good standing in every other state in which the nature of
Borrower's business requires it to be qualified.
6.2 The execution, delivery and performance of this Agreement are within
the corporate powers of Borrower, have been duly authorized by appropriate
corporate action and are not in contravention of the terms of Borrower's
charter or by-laws or of any indenture, agreement or undertaking to which
Borrower is a party or by which it may be bound. Borrower warrants that it is
and covenants that it shall remain solvent at all times while this Agreement
is in effect.
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6.3 Borrower is and shall be, with respect to all Inventory, the owner
thereof free from any lien, security interest or encumbrance of any kind,
except in favor of Lender and PNC Bank, N.A. ("PNC") which is the subject of
an Intercreditor Agreement entered into contemporaneously between PNC and
Lender. No Receivable or any other Collateral has been or shall hereafter be
assigned, pledged or transferred to any person other than the Lender or in any
way encumbered or subject to a security interest except to Lender and Borrower
shall defend the same against the claims of all persons.
6.4 All loans and advances requested by Borrower under this Agreement
shall be used for the general corporate and business purposes of Borrower and
shall in no event be requested or used by Borrower for the specific purpose of
paying wages of the employees of Borrower.
6.5 Borrower shall maintain its shipping forms, invoices and other
related documents in a form satisfactory to Lender and shall maintain its
books, records and accounts in accordance with sound accounting practice.
Borrower agrees to furnish, and to cause XXXX to furnish, Lender with balance
sheets, statements of profit and loss, interim financial statements, cash flow
projections and such other information regarding the business affairs and
financial condition of Borrower and XXXX as Lender may from time to time
reasonably request, including, without limitation (a) audited statements, on a
Consolidated Basis, within 90 days after the end of each fiscal year of
Borrower, in such detail and scope as Lender may require, prepared with an
unqualified opinion and certified by independent Certified Public Accountants
acceptable to Lender (provided, however, that for the fiscal year ending may
31, 2000 such financial statement may be on a review basis) (b) a financial
statement, on a Consolidated Basis, within 45 days after the end of the first
and the third quarterly period of each fiscal year of Borrower, prepared
internally and certified by the Comptroller of Borrower; and (c) an unaudited
financial statement, on a Consolidated Basis, prepared on a review basis
within 45 days after the end of the second quarterly period of each fiscal
year of Borrower, prepared by independent Certified Public Accountants
acceptable to Lender. All such statements and information shall fairly present
the financial condition of Borrower and XXXX as of the dates, and the results
of their respective operations for the periods, for which the same are
furnished.
6.6 Borrower shall duly pay and discharge all taxes, assessments,
contributions and governmental charges upon or against it or its properties or
assets prior to the date on which penalties attach thereto. Borrower shall be
liable for any tax (excluding a tax imposed on the overall net income of
Lender) imposed upon any transaction under this Agreement or giving rise to
the Receivables or which Lender may be required to withhold or pay for any
reason and Borrower agrees to indemnify and hold Lender harmless with respect
thereto, and to repay Lender on demand the amount thereof, and until paid by
Borrower shall be added to the obligations secured hereunder, and may at
Lender's option be charged to Borrower's Loan Account.
6.7 Borrower shall duly pay and discharge all taxes, assessments,
contributions and governmental charges upon or against it or its properties or
assets prior to the date on which penalties attach thereto. Borrower shall be
liable for any tax (excluding a tax imposed on the overall net income of
Lender) imposed upon any transaction under this Agreement or giving rise to
the Receivables or which Lender may be required to withhold or pay for any
reason and Borrower agrees to indemnify and hold Lender harmless with respect
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thereto, and to repay Lender on demand the amount thereof, and until paid by
Borrower shall be added to the Obligations secured hereunder, and may at
Lender's option be charged to Borrower's Loan Account.
6.8 With respect to each Receivable, Borrower hereby represents and
warrants that: each Receivable represents a valid and legally enforceable
indebtedness based upon an actual and bona fide sale and delivery of property
or rendition of services in the ordinary course of Borrower's business which
has been finally accepted by the Account Debtor and for which the Account
Debtor is unconditionally liable to make payment of the amount stated in each
invoice, document or instrument evidencing the Receivable in accordance with
the terms thereof, without offers defense or counterclaim; each Receivable
will be paid in full at maturity; all statements made and all unpaid balances
appearing in any invoices, documents, instruments and statements of account
describing or evidencing the Receivables are true and correct and are in all
respects what they purport to be and all signatures and endorsements that
appear thereon are genuine and all signatories and endorsers have full
capacity to contract; the Account Debtor owing the Receivable and each
guarantor, endorser or surety of such Receivable is solvent and financially
able to pay in full the Receivable when it matures; and all recording, filing
and other requirements of giving public notice under any applicable law have
been duly complied with.
6.9 Borrower shall until payment in full of all Obligations to Lender and
termination of this Agreement (a) cause to be maintained, on a consolidated
basis, with XXXX at the end of each fiscal quarter (i.e., December, March,
June, September), Tangible Net Worth in an amount not less than $1,250,000 and
(b) cause to be maintained at the end of each such fiscal quarter, Working
Capital of not less than $400,000.
For the purpose hereof the following terms shall have the following
definitions:
"Current Assets" at a particular date shall mean cash accounts and
inventory of Borrower providing however, that such amounts shall not include
any amounts for any indebtedness owing by any affiliate to Borrower.
"Current Liabilities" at a particular date shall mean all amounts which
would, in conformity with GAAP, be included under current liabilities or
duplications, the amounts of (a) all indebtedness payable on demand, or at the
option of the person or entity to whom such indebtedness is owed, not more
than twelve (12) months after such date, (b) any payments in respect of any
indebtedness (whether installment, serial maturity, sinking fund payment or
otherwise) required to be made not more than twelve (12) months after such
date, (c) all reserves in respect of liabilities or indebtedness payable on
demand or, at the option of the person or entity to whom such indebtedness is
owed, not more than twelve (12) months after such date, the validity which is
not contested to such date, (d) all accruals for federal or other taxes
measured by income payable within twelve (12) months of such date and (e) all
outstanding indebtedness to Lender.
"Tangible Net Worth" shall mean, at a particular date (a) the aggregate
amount of all assets of Borrower as may be properly classified as such in
accordance with GAAP consistently applied excluding such other assets as are
properly classified as intangible assets under GAAP, less (b) the aggregate
amount of all liabilities of Borrower (excluding subordinated liabilities to
Lender) determined in accordance with GAAP.
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"Working Capital" shall mean the excess, if any, of Current Assets less
Current Liabilities.
6.10 Borrower's computer based system are Year 2000 Compliant and at
Lender's request Borrower shall provide assurances acceptable to Lender
thereof.
Section 7 SPECIFIC POWERS OF LENDER
7.1 Borrower hereby constitutes Lender or its agent, or any other person
whom Lender may designate, as Borrower's attorney, at Borrower's own cost and
expense to exercise at any time all or any of the following powers which,
being coupled with an interest, shall be irrevocable until all Obligations
have been paid in full: (a) to receive, take, endorse, assign, deliver, accept
and deposit, in Lender's or Borrower's name, any and all checks, notes,
drafts, remittances and other instrument and documents relating to Receivables
and proceeds thereof; (b) to receive, open and dispose of all mail addressed
to Borrower and to notify postal authorities to change the address for
delivery thereof to such address as Lender may designate; (c) to transmit to
Account Debtors indebted on Receivables notice of Lender's interest therein
and to request from such Account Debtors at any time, in Borrower's name or in
Lender's or that of Lender's designee, information concerning the Receivables
and the amounts owing thereon; (d) to notify Account Debtors to make payment
directly to Lender; (e) to take or bring, in Borrower's name or Lender's, all
steps, actions, suits or proceedings deemed by Lender necessary or desirable
to effect collection of the Receivables; and (f) to sign on behalf of the
Borrower one or more financing statements (or amendments to financing
statements) under the Uniform Commercial Code. In addition, to the extent
permitted by law, Lender may file one or more financing statements signed only
by Lender, naming Borrower as debtor and Lender as secured party and
indicating therein the types or describing the items of collateral covered by
this Agreement. Without limitation of any of the powers enumerated above,
Lender is hereby authorized to accept and to deposit all collections in any
form, relating to Receivables, received from or for the account of Account
Debtors (whether such collections are remitted directly to Lender by Account
Debtors or are forwarded to Lender by Borrower), including remittances which
may reflect deductions taken by Account Debtors, regardless of amount, the
Loan of Borrower to be credited only with amounts actually collected on
Receivables in accordance with Section 5.1 Borrower hereby releases (i) any
bank, trust company or other firm receiving or accepting such collections in
any form, and (ii) Lender and its officers, employees and designees, from any
liability arising from any act or acts hereunder or in furtherance hereof,
whether of omission or commission, and whether based upon any error of
judgment or mistake of law or fact.
Section 8 LENDER'S REMEDIES UPON BORROWER'S DEFAULT
8.1 Borrower agrees that all of the loans and advances made by Lender
under the terms of this Agreement, together with all Obligations of Borrower
as defined herein (unless otherwise provided in any instrument evidencing the
same or agreement relating thereto), shall be payable by Borrower at Lender's
demand at the office of Lender in New York, New York. In addition, all
Obligations shall be, at Lender's option, due and payable without notice or
demand upon termination of this Agreement or upon the occurrence of any one or
more of the following events of default ("Default"): (a) if Borrower shall
fail to pay to Lender when due any amounts owing to Lender under any
Obligation, or shall breach any of the terms, covenants, conditions or
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provisions of this Agreement or any other agreement between the parties; (b)
if any guarantor, endorser or other person liable on the Obligations shall die
(and the estate of such deceased shall not, within 45 days of the date
following the death of such deceased, enter into a guaranty of the Obligations
satisfactory in form and substance to Lender), terminate its guaranty or shall
breach any of the terms, covenants, conditions or provisions of any guarantee,
endorsement or other agreement of such person with, or in favor of, Lender,
(c) if any representative, warranty, or statement of fact made to Lender at
any time by or on behalf of Borrower is false or misleading in any material
respect; (d) if Borrower shall become insolvent, is generally unable to pay
its debts as the mature, files or has file against it a petition in
bankruptcy, liquidation or reorganization, or if a judgment against Borrower
remains unpaid, unstayed or undismissed for a period of more than five days,
or if Borrower discontinues doing business for any reason, or if a custodian,
receiver or trustee of any kind is appointed for it or any of its property; or
(e) if there is a change (by voluntary transfer, death or otherwise) in
Borrower's controlling stockholders or owners provided, however, that
transfers (whether the gift, sale or testamentary bequest) between or among
Xxxxxxx Xxxx, Xxxxx Xxxx or the estate of Xxxxx Xxxx shall not constitute a
change in Borrower's controlling stockholders or owners for the purpose of the
subsection (e); or (f) if at any time Lender shall, in its sole discretion,
reasonably exercised, consider the Obligations insecure or any part of the
Receivables unsafe, insecure or insufficient and Borrower shall not on demand
furnish other collateral or make payment on account, satisfactory to Lender.
Upon the occurrence of any Default, (i) Borrower shall pay to Lender, as
liquidated damages and as part of the Obligations, a charge at the rate of
five percent (5%) per annum above the Effective Rate upon the unpaid balance
of the Obligations from the date of Default until the date of the payment of
the Obligations, which charge shall be in lieu of compensation payable under
Section 3.1 from such date; provided, that in no event shall such rate exceed
the Maximum Rate, (ii) Borrower shall pay to Lender all costs, disbursements,
charges and expenses for the collection and enforcement of the Obligations,
and for the protection and enforcement of Lender's security interest,
including reasonable attorneys' fees at the time counsel is retained by
Lender, all of which shall be added to and deemed part of the obligations, and
(iii) Lender shall have the right (in addition to any other rights Lender may
have under this Agreement or otherwise) without further notice to Borrower, to
enforce payment of any Receivables, to settle, compromise, "Or release in
"whole or in ad, any amounts owing on Receivables, to prosecute any action,
suit or proceeding with respect to Receivables, to extend the time of payment
of any and all Receivables, to make allowances and adjustments with respect
thereto, to issue credits in Lender's name or Borrower's, to sell, assign and
deliver the Receivables (or any part thereof and any returned, reclaimed or
repossessed merchandise or other property held by Lender or by Borrower for
Lender's account, at public or private sale, at broker's board, for cash, upon
credit or otherwise, at Lender's sole option and discretion, and Lender may
bid or become purchaser at any such sale if public, free from any right of
redemption which is hereby expressly waived. Borrower agrees that the giving
of five days' notice by Lender, sent by ordinary mail, postage prepaid, to the
mailing address of Borrower set forth in this Agreement, designating the place
and time of any public sale or the time after which any private sale or other
intended disposition of the Receivables or any other security held by Lender
is to be made, shall be deemed 'to be reasonable notice thereof and Borrower
waives any other notice with respect thereto. The net cash proceeds resulting
from the exercise of any of the foregoing rights or remedies shall be applied
by Lender to the payment of the Obligations in such order as Lender may elect,
and Borrower shall remain liable to Lender for any deficiency.
Page 10
8.2 The enumeration of the foregoing rights and remedies is not intended
to be exhaustive, and such rights and remedies are in addition to and not by
way of limitation of any other rights or remedies Lender may have under the
New York Uniform Commercial Code or other applicable law. Lender shall have
the right, in its sole discretion, to determine which rights and remedies, and
in which order any of the same, are to be exercised, and to determine which
Receivables are to be proceeded against and in which order, and the exercise
of any right or remedy shall not preclude the exercise of any others, all of
which shall be cumulative. No ac@ failure or delay by Lender shall constitute
a waiver of any of its rights and remedies. No single or partial waiver by
Lender of any provision of this Agreement, or breach or default thereunder, or
of any right or remedy which Lender may have shall operate as a waiver of any
other provision, breach, default, right or remedy or of the same provision,
breach, default, right or remedy on a future occasion. Borrower waives
presentment, notice of dishonor, protest and notice of protest of all
instruments included in or evidencing any of the Obligations or the
Receivables and any and all notices or demands whatsoever (except as expressly
provided herein). Lender may, at all times, proceed directly against Borrower
to enforce payment of the Obligations and shall not be required to first
enforce its rights in the Receivables or any other security granted to it.
Lender shall not be required to take any action of any kind to preserve,
collect or protect its or Borrower's rights in the Receivables or any other
security granted to it.
8.3 BORROWER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF
ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, THE
OBLIGATIONS, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND
BORROWER HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE IN CONNECTION
WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE OBLIGATIONS. IN ANY SUCH LITIGATION BORROWER WAIVES PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE
MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO BORROWER AT ITS PLACE OF
BUSINESS SET FORTH ABOVE. WITHIN 30 DAYS AFTER SUCH MAILING, BORROWER SHALL
APPEAR IN ANSWER TO SUCH SUMMONS, COMPLAINT OR OTHER PROCESS, FAILING WHICH
BORROWER SHALL BE DEEMED IN DEFAULT AND JUDGMENT MAY BE ENTERED BY LENDER
AGAINST BORROWER FOR THE AMOUNT OF THE CLAIM AND OTHER RELIEF REQUESTED
THEREIN.
Section 9 EFFECTIVE DATE, CONTROLLING LAW AND TERMINATION
9.1 This Agreement shall become effective upon acceptance by Lender at
its office in the State of New York, and shall continue in full force and
effect until March 31, 2003 (the "Removal Date") and from year to year
thereafter, unless sooner terminated as herein provided. Borrower may
terminate this Agreement this Agreement on the Renewal Date or on the
anniversary of the Renewal Date in any year by giving Lender at least sixty
(60) days' prior written notice by registered or certified mail, return
receipt requested, and in addition to its other rights hereunder, Lender shall
have the right to terminate this Agreement at any time by giving Borrower
thirty (30) days' prior written notice. In addition to the charges under
Page 11
Section 3 hereof, as minimum compensation to Lender for its agreement to make
loans under the terms of this Agreement, and for its serves hereunder, Lender
shall receive and Borrower agrees to pay minimum charges in the aggregate
amount of $6,000 during each month (or any part thereof, if someone
terminated) that this Agreement is in effect, which minimum compensation shall
be payable after deducting for each month the charges paid by Borrower for
such month under Section 3.1. Should a Default occur hereunder, this
Agreement will be terminated by Lender at any time and Borrower shall, upon
any such termination by Lender, pay to Lender, as additional liquidated
damages and as part of the Obligations, an amount equal to (a) 3% of the Line
of Credit should the termination occur before the expiration of the first
Renewal Date; (b) 2% of the Line of Credit should termination occur before the
termination date of the second Renewal Date, and (c) 1% of the Line of Credit
should termination occur before the termination date of the third Renewal Date
and each successive Renewal Date thereafter. In the event that Lender shall
permit termination of this Agreement by Borrower terminates this Agreement
other than as provided herein, as a condition to such termination, Borrower
shall pay the Lender such additional liquidated damages in addition to
performance of any other conditions to such termination. No termination of
this Agreement, however, shall relieve or discharge Borrower of its duties,
obligations and covenants hereunder until such time as all Obligation have
been paid in full, and the continuing security interest in Receivables and
other Collateral granted to Lender hereunder or under any other agreement
shall remain in effect until such Obligations have been fully discharged. No
provision hereof shall be modified or amended orally or by course of conduct
but only by a written instrument expressly referring hereto signed by both
parties.
9.2 ALL LOANS SHALL BE DISBURSED BY LENDER FROM ITS OFFICE IN THE STATE
OF NEW YORK, SHALL BE PAYABLE BY BORROWER AT SUCH OFFICE, AND THIS AGREEMENT
AND ALL TRANSACTIONS THEREUNDER SHALL BE DEEMED TO BE CONSUMMATED IN SUCH
STATE AND SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THAT STATE. If any part or provision of this Agreement is invalid or in
contravention of the applicable laws or regulations of any controlling
jurisdiction, such part or provision shall be severable without affecting the
validity of any other part of provision of this Agreement. Notwithstanding
any provision herein or in any related document, Lender shall never be
entitled to receive, collect, or apply, as interest on the Loan Account, any
amount in excess of the maximum rate of interest ("Maximum Rate") permitted to
be charged from time to time by applicable law (if such law imposes any
maximum rate), and in the event Lender ever receives, collects, or applies as
interest, any amount in excess of the Maximum Rate, such amount shall be
deemed and treated as a partial prepayment of the principal of the Loan
Account, and, if the principal of the Loan Account, and, if the principal of
the Loan Account and all other of Lender's charges other than interest are
paid in full, any remaining excess shall be paid to Borrower.
Page 12
IN WITNESS WHEREOF, Lender and Borrower have caused this Agreement to be
executed by their respective corporate officers thereto duly authorized as of
the day and year first above written.
Attest: XXXX ELECTRIC INC.
/s/ Xxxxx Xxxx By:/s/ Xxxx Xxxx
Secretary Title: President
Accepted:
XXXXXXXXX & XXXXXXXXX, INC.
By:/s/ Xxxxxxx Xxxx
Executive Vice President
Page 13
INVENTORY SECURITY AGREEMENT
New York, New York March 27, 2000
Xxxxxxxxx & Xxxxxxxxx, Inc.]
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Gentlemen:
We do hereby agree that the Financing Agreement bet6ween us dated March
27, 2000 (the "Financing Agreement") be and the same hereby amended and
supplemented by adding thereto the following clauses:
We hereby pledge, assign, consign, transfer and set over to you, and you
shall at all times have a continuing general lien upon, and we hereby grant
you a continuing security interest in, all of our inventory and the proceeds
thereof. "Inventory" shall include but not be limited to raw materials, work
in process, finished merchandise and all wrapping, packing and shipping
materials, wheresoever located, now owned or thereafter acquired, presently
existing or hereafter arising, and all additions and accessions thereto, the
resulting product or mass and any documents representing all or any part
thereof. Upon your request, we will at any time and from time to time, at our
expense, deliver such Inventory to you or such person as you may designate,
cause the same to be stored in your name at such place as you may designate,
deliver to you documents of title representing the same or otherwise evidence
your security interest in such manner as you may require.
The aforementioned pledge, assignment, consignment, transfer, lien, and
security interest shall secure any and all of our obligations to you, matured
or unmatured, absolute or contingent, now existing or that may hereafter
arise, and howsoever acquired by you, whether arising directly between us or
acquired by you by assignment and whether relating to this agreement or
independent hereof, together with all interest, charges, commissions,
expenses, attorneys' fees and other items chargeable against us in connection
with any of said obligations.
We agree, at our expense, to keep all Inventory insured to the full value
thereof against such risks and by policies of insurance issued by such
companies as you may designate or approve, and the policies evidencing such
insurance shall be duly endorsed in your favor with a long form lender's loss
payable rider or such other document as you may designate and said policies
shall be delivered to you. Should we fail for any reason to furnish you with
such insurance, you shall have the right to effect the same and charge any
costs in connection therewith to us. You shall have no risk, liability or
responsibility in connection with payment or nonpayment of any loss, your sole
obligation being to credit our account with the net proceeds of any such
insurance payments received on account of any loss. Any and all assessments,
taxes or other charges that may be assessed upon or payable with respect to
the Inventory or any part thereof shall forthwith be paid by us, and we agree
Page 1
that you, in your discretion, may effect such payment and charge the amount
thereof to us. We further agree that except for the pledge, assignment,
consignment, transfer, lien and security interest granted to you hereby, we
shall not permit said Inventory to otherwise become liened or encumbered nor
shall we grant any security interest thereon to any other party. We shall
not, without your written consent first obtained, remove or dispose of any of
such Inventory except to bona fide purchasers thereof in the ordinary course
of our business. All such sales shall be reported to you promptly and the
accounts or other proceeds thereof shall be subject to the security interests
in your favor. You shall have the right at all times to the immediate
possession of all Inventory and all our records pertaining thereto available
to you for inspection at any time requested by you. You shall have the right,
in your discretion, to pay any liens or claims upon said Inventory, including
but not limited to, warehouse charges, dyeing, finishing and processing
charges, landlords' claims, etc. and the amount of any such payment shall be
charged to our account and secured hereby. You shall not be liable for the
safekeeping of any of the Inventory or for any loss, damage or diminution in
the value thereof or for any act or default of any warehouseman, carrier or
other person dealing in and with said Inventory, whether as your agent or
otherwise, or for the collection of any proceeds thereof but the same shall at
all times be at our sole risk.
Prior to its sale to a bona fide purchaser in the ordinary course of
business, Inventory shall at all times remain at our address specified below
and shall not be removed therefrom without your prior written consent.
Upon our Default as defined in the Financing Agreement, you shall have
the right, upon reasonable notice to us, to sell all or any part of our
Inventory, at public or private sale, or make other disposition thereof, at
which sale or disposition you may be a purchaser. We agree that written
notice sent to us by postpaid mail, at least five days before the date of any
intended public sale or the date after which any private sale or other
intended disposition of the Inventory is to be made, shall be deemed to be
reasonable notice thereof. We do hereby waive all notice of any such sale or
other intended disposition if said Inventory is perishable to threatens to
decline speedily in value or is of a type customarily sold on a recognized
market. Upon the occurrence of any of the events, referred to in the first
sentence of this paragraph, you may require us to assemble all or any part of
the Inventory and make it available to you at a place to be designated by you,
which is reasonably convenient to both parties. In addition, you may
peaceably, by your own means or with judicial assistance, enter our or any
other premises and take possession of the Inventory and remove or dispose of
it on our premises and we agree that we will not resist or interfere with any
such action. We hereby expressly waive demand, notice of sale (except as
herein provided), advertisement of sale and redemption before sale. The net
proceeds of any such public or private sale or other disposition as far as
needed shall be applied toward the payment and discharge of any and all of our
obligations to you, together with all interest thereon and all reasonable
costs, charges, expenses and disbursements in connection therewith, including
the reasonable fees of your attorneys, rendering any surplus remaining to us,
we, of course, to continue liable should there by any deficiency.
Page 2
This agreement shall constitute a security agreement pursuant to the
Uniform Commercial Code and, in addition to any and all of your other rights
hereunder, you shall have all of the rights of a secured party pursuant to the
provisions of the Uniform Commercial Code. We agree to execute a financing
statement and any and all other instruments and documents that may now or
hereafter be provided for by the Uniform Commercial Code and other law
applicable thereto, reflecting the security interests granted to you
hereunder. We do hereby authorize you to file a financing statement without
our signature, signed only by you as secured party, to reflect the security
interests granted to you hereunder.
Very truly yours,
XXXX ELECTRIC INC.
/s/ Xxxx Xxxx, President
00-00 Xxxxx Xxxxxx, Xxxx Xxxx, XX 00000
Page 3
March , 2000
XXXX ELECTRIC INC.
XXXX INDUSTRIES, INC.
00-00 Xxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Gentlemen:
This will confirm that with respect to the Financing Agreements entered
into by each of us with you today that without limiting our discretion to make
advances or our rights to terminate under such Agreements, we contemplate that
outstanding advances to you may in the aggregate total $2,000,000.
The minimum charges provided for in the Agreements shall apply in the
aggregate and shall be apportioned in our discretion as each of you have
guaranteed the obligations of the other.
If the above sets forth our agreement, please sign your names by your
duly authorized officers where indicated below, beneath the word "Agreed."
Very truly yours,
XXXXXXXXX & XXXXXXXXX, INC.
By:/s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Executive Vice President
AGREED:
XXXX ELECTRIC INC.
By:/s/ Xxxx Xxxx
Title: President
XXXX INDUSTRIES, INC.
By:/s/ Xxxx Xxxx
Title: President
Location of Borrower's Chief Executive Office of Borrower:
Books and Records:
00-00 Xxxxx Xxxxxx 00-00 Xxxxx Xxxxxx
Xxxx Xxxx, XX 00000 Xxxx Xxxx, XX 00000
Mailing Address of Borrower: Other Places of Business of Borrower:
00-00 Xxxxx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
