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EXHIBIT 10.3
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LOAN AND SECURITY AGREEMENT
BY AND BETWEEN
CONGRESS FINANCIAL CORPORATION
AS LENDER
AND
XXXXX CORPORATION,
IFC DISPOSABLES, INC.
AND
BRIDGEWATER MANUFACTURING CORP.
AS BORROWERS
DATED: NOVEMBER 18, 1997
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS...................................... 1
SECTION 2. CREDIT FACILITIES................................ 7
2.1 Revolving Loans..................................... 7
2.2 Letter of Credit Accommodations..................... 8
2.3 Availability Reserves............................... 10
SECTION 3. INTEREST AND FEES................................ 10
3.1 Interest............................................ 10
3.2 Closing Fee......................................... 10
3.3 Servicing Fee....................................... 11
3.4 Unused Line Fee..................................... 11
SECTION 4. CONDITIONS PRECEDENT............................. 11
4.1 Conditions Precedent to Initial Loans and Letter of
Credit Accommodations............................... 11
4.2 Conditions Precedent to All Loans and Letter of
Credit Accommodations............................... 12
SECTION 5. GRANT OF SECURITY INTEREST....................... 12
SECTION 6. COLLECTION AND ADMINISTRATION.................... 13
6.1 Borrowers' Loan Accounts............................ 13
6.2 Statements.......................................... 13
6.3 Collection of Accounts.............................. 14
6.4 Payments............................................ 14
6.5 Authorization to Make Loans......................... 15
6.6 Use of Proceeds..................................... 15
6.7 Appointment of Xxxxx as Agent for Borrowers......... 15
SECTION 7. COLLATERAL REPORTING AND COVENANTS............... 15
7.1 Collateral Reporting................................ 15
7.2 Accounts Covenants.................................. 16
7.3 Inventory Covenants................................. 17
7.4 Equipment Covenants................................. 17
7.5 Real Property Covenants............................. 18
7.6 Power of Attorney................................... 18
7.7 Right to Cure....................................... 18
7.8 Access to Premises.................................. 18
SECTION 8. REPRESENTATIONS AND WARRANTIES................... 19
8.1 Corporate Existence, Power and Authority;
Subsidiaries........................................ 19
8.2 Financial Statements; No Material Adverse Change.... 19
8.3 Chief Executive Office; Collateral Locations........ 19
8.4 Priority of Liens; Title to Properties.............. 19
8.5 Tax Returns......................................... 19
8.6 Litigation.......................................... 20
8.7 Compliance with Other Agreements and Applicable
Laws................................................ 20
8.8 Bank Accounts....................................... 20
8.9 Employee Benefits................................... 20
8.10 Environmental Compliance............................ 21
8.11 Accuracy and Completeness of Information............ 21
8.12 Survival of Warranties; Cumulative.................. 21
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SECTION 9. AFFIRMATIVE AND NEGATIVE COVENANTS............... 21
9.1 Maintenance of Existence............................ 21
9.2 New Collateral Locations............................ 22
9.3 Compliance with Laws, Regulations, Etc.............. 22
9.4 Payment of Taxes and Claims......................... 23
9.5 Insurance........................................... 23
9.6 Financial Statements and Other Information.......... 23
9.7 Sale of Assets, Consolidation, Merger, Dissolution,
Etc................................................ 24
9.8 Encumbrances........................................ 24
9.9 Indebtedness........................................ 25
9.10 Loans, Investments, Guarantees, Etc................. 25
9.11 Dividends and Redemptions........................... 26
9.12 Transactions with Affiliates........................ 26
9.13 Additional Bank Accounts............................ 26
9.14 Compliance with ERISA............................... 26
9.15 Adjusted Net Worth.................................. 27
9.16 Costs and Expenses.................................. 27
9.17 Further Assurances.................................. 27
SECTION 10. EVENTS OF DEFAULT AND REMEDIES.................. 27
10.1 Events of Default................................... 27
10.2 Remedies............................................ 29
10.3 Certain Limitations................................. 30
SECTION 11. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS;
GOVERNING LAW.................................. 30
11.1 Governing Law; Choice of Forum; Service of Process;
Jury Trial Waiver.................................. 30
11.2 Waiver of Notices................................... 31
11.3 Amendments and Waivers.............................. 31
11.4 Waiver of Counterclaims............................. 31
11.5 Indemnification..................................... 31
SECTION 12. TERM OF AGREEMENT; MISCELLANEOUS................ 32
12.1 Term................................................ 32
12.2 Notices............................................. 33
12.3 Partial Invalidity.................................. 33
12.4 Successors.......................................... 33
12.5 Entire Agreement.................................... 34
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INDEX TO
EXHIBITS AND SCHEDULES
Exhibit A Information Certificate
Exhibit B Certain Account Debtor Concentrations
Schedule 8.4 Existing Liens
Schedule 8.8 Bank Accounts
Schedule 8.9 Environmental Matters
Schedule 9.9 Existing Indebtedness
Schedule 9.10 Existing Loans, Advances and Guarantees
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LOAN AND SECURITY AGREEMENT
This Loan and Security Agreement dated November 18, 1997 is entered into by
and between CONGRESS FINANCIAL CORPORATION, a California corporation ("Lender")
and XXXXX CORPORATION, a New York corporation ("Xxxxx"), IFC DISPOSABLES, INC.,
a Tennessee corporation ("IFC") and BRIDGEWATER MANUFACTURING CORP., a New
Jersey corporation ("Bridgewater"; and together with Xxxxx and IFC,
individually, a "Borrower" and, collectively "Borrowers").
W I T N E S S E T H :
WHEREAS, Borrowers have requested that Lender enter into certain financing
arrangements with Borrowers pursuant to which Lender may make loans and provide
other financial accommodations to Borrowers; and
WHEREAS, Lender is willing to make such loans and provide such financial
accommodations on the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS
All terms used herein which are defined in Article 1 or Article 9 of the
Uniform Commercial Code shall have the meanings given therein unless otherwise
defined in this Agreement. All references to the plural herein shall also mean
the singular and to the singular shall also mean the plural unless the context
otherwise requires. All references to Borrowers and Lender pursuant to the
definitions set forth in the recitals hereto, or to any other person herein,
shall include their respective successors and assigns. The words "hereof",
"herein", "hereunder", "this Agreement" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not any particular
provision of this Agreement and as this Agreement now exists or may hereafter be
amended, modified, supplemented, extended, renewed, restated or replaced. The
word "including" when used in this Agreement shall mean "including, without
limitation". An Event of Default shall exist or continue or be continuing until
such Event of Default is waived in accordance with Section 11.3 or is cured in a
manner satisfactory to Lender, if such Event of Default is capable of being
cured as determined by Lender. Any accounting term used herein unless otherwise
defined in this Agreement shall have the meanings customarily given to such term
in accordance with GAAP. For purposes of this Agreement, the following terms
shall have the respective meanings given to them below:
1.1 "Accounts" of a Borrower shall mean all present and future rights of
such Borrower to payment for goods sold or leased or for services rendered,
which are not evidenced by instruments or chattel paper, and whether or not
earned by performance.
1.2 "Adjusted Net Worth" shall mean as to any Person, at any time, in
accordance with GAAP (except as otherwise specifically set forth below), on a
consolidated basis for such Person and its subsidiaries (if any), the amount
equal to: (a) the difference between: (i) the aggregate net book value of all
assets of such Person and its subsidiaries, calculating the book value of
inventory for this purpose on a first-in-first-out basis, after deducting from
such book values all appropriate reserves in accordance with GAAP (including all
reserves for doubtful receivables, obsolescence, depreciation and amortization,
but excluding any subsequent reserve against the Airlay Production Line #2 (as
described in the MB Orderly Liquidation Value Appraisal of Xxxxx dated September
9, 1997 prepared by MB Valuation Inc.) which represents a one time writedown of
the asset for purposes of adjusting such asset to its net realizable value,
provided, that, after such writedown the net realizable value is not less than
$600,000) and (ii) the aggregate amount of the indebtedness and other
liabilities of such Person and its subsidiaries (including tax and other proper
accruals) plus (b) indebtedness of such Person and its subsidiaries which is
subordinated in right of payment to the full and final payment of all of the
Obligations on terms and conditions acceptable to Lender. For purposes of
Section 9.15 hereof, Adjusted Net Worth of Borrowers shall not include the
Adjusted Net Worth of the Canadian Subsidiary.
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1.3 "Adjusted Net Income" shall mean the amount equal to: (a) Borrowers'
net income on a combined basis determined in accordance with GAAP, minus (b) to
the extent included in calculating such net income: (i) gain arising from the
sale of a capital asset; (ii) gain arising from any write-up in the book value
of an asset; (iii) income or gain of any person acquired by a Borrower in any
manner to the extent realized in any period prior to the date of the
acquisition; (iv) income or gain of any person in which a Borrower has an
ownership interest (other than a wholly owned subsidiary) except and only to the
extent that such Borrower has actually received such income or gain in the form
of cash distributions; (v) gain from the cancellation or forgiveness of
indebtedness; (vi) gain arising from the initial implementation of a change in
GAAP; (vii) gain from extraordinary items or any other nonrecurring transaction;
and (viii) income or gain arising from tax credits in excess of the amount of
taxes that would be imposed on net income without giving effect to such tax
credits.
1.4 "Availability Reserves" shall mean, as of any date of determination,
such amounts as Lender may from time to time establish and revise in good faith
reducing the amount of Revolving Loans and Letter of Credit Accommodations which
would otherwise be available to a Borrower under the lending formula(s) provided
for herein: (a) to reflect events, conditions, contingencies or risks which, as
determined by Lender in good faith, do or could reasonably be expected to affect
either (i) the Collateral or any other property which is security for the
Obligations or its value, (ii) the assets, business or financial condition of a
Borrower or any Obligor or (iii) the security interests and other rights of
Lender in the Collateral (including the enforceability, perfection and priority
thereof) or (b) to reflect Lender's good faith belief that any collateral report
or financial information furnished by or on behalf of a Borrower or any Obligor
to Lender is or may have been incomplete, inaccurate or misleading in any
material respect or (c) to reflect outstanding Letter of Credit Accommodations
as provided in Section 2.2 hereof or (d) to reflect the average amounts of
customer rebates issued by Borrower each month as determined based on the last
audit of Borrower performed by Lender or (e) in respect of any state of facts
which Lender determines in good faith constitutes an Event of Default or may,
with notice or passage of time or both, constitute an Event of Default.
1.5 "Blocked Accounts" shall have the meaning set forth in Section 6.3
hereof.
1.6 "Canadian Subsidiary" shall mean Wood Xxxxx, Inc., a Canadian company
and a wholly-owned subsidiary of Xxxxx.
1.7 "Code" shall mean the internal Revenue Code of 1986, as the same now
exists or may from time to time hereafter be amended, modified, recodified or
supplemented, together with all rules, regulations and interpretation thereunder
or related thereto.
1.8 "Collateral" shall have the meaning set forth in Section 5 hereof.
1.9 "Eligible Accounts" of a Borrower shall mean Accounts created by such
Borrower which are and continue to be acceptable to Lender based on the criteria
set forth below. In general, Accounts shall be Eligible Accounts if:
(a) such Accounts arise from the actual and bona fide sale and delivery of
goods by such Borrower or rendition of services by such Borrower in
the ordinary course of its business which transactions are completed
by such Borrower in accordance with the terms and provisions contained
in any documents related thereto;
(b) such Accounts are not unpaid more than sixty (60) days past the
original due date for them or more than ninety (90) days after the
date of the original invoice for them;
(c) such Accounts comply with the terms and conditions contained in
Section 7.2(c) of this Agreement;
(d) such Accounts do not arise from sales on consignment, guaranteed sale,
sale and return, sale on approval, or other terms under which payment
by the account debtor may be conditional or contingent;
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(e) the chief executive office of the account debtor with respect to such
Accounts is located in the United States of America, or, at Lender's
option, if either: (i) the account debtor has delivered to such
Borrower an irrevocable letter of credit issued or confirmed by a bank
satisfactory to Lender and payable only in the United States of
America and in U.S. dollars, sufficient to cover such Account, in form
and substance satisfactory to Lender and, if required by Lender, the
original of such letter of credit has been delivered to Lender or
Lender's agent and the issuer thereof notified of the assignment of
the proceeds of such letter of credit to Lender, or (ii) such Account
is subject to credit insurance payable to Lender issued by an insurer
and on terms and in an amount acceptable to Lender, or (iii) such
Account is otherwise acceptable in all respects to Lender (subject to
such lending formula with respect thereto as Lender may determine);
(f) such Accounts do not consist of progress xxxxxxxx, xxxx and hold
invoices or retainage invoices, except as to xxxx and hold invoices,
if Lender shall have received an agreement in writing from the account
debtor, in form and substance satisfactory to Lender, confirming the
unconditional obligation of the account debtor to take the goods
related thereto and pay such invoice;
(g) the account debtor with respect to such Accounts has not asserted a
counterclaim, defense or dispute and does not have, and does not
engage in transactions which may give rise to, any right of setoff
against such Accounts (but the portion of the Accounts of such account
debtor in excess of the amount at any time and from time to time owed
by such Borrower to such account debtor or claimed owed by such
account debtor may be deemed Eligible Accounts);
(h) there are no facts, events or occurrences which would impair the
validity, enforceability or collectability of such Accounts or reduce
the amount payable or delay payment thereunder;
(i) such Accounts are subject to the first priority, valid and perfected
security interest of Lender and any goods giving rise thereto are not,
and were not at the time of the sale thereof, subject to any liens
except those permitted in this Agreement;
(j) neither the account debtor nor any officer or employee of the account
debtor with respect to such Accounts is any other Borrower or an
officer, employee or agent of or affiliated with any Borrower directly
or indirectly by virtue of family membership, ownership, control,
management or otherwise;
(k) the account debtors with respect to such Accounts are not any foreign
government, the United States of America, any State, political
subdivision, department, agency or instrumentality thereof, unless, if
the account debtor is the United States of America, any State,
political subdivision, department, agency or instrumentality thereof,
upon Lender's request, the Federal Assignment of Claims Act of 1940,
as amended or any similar State or local law, if applicable, has been
complied with in a manner satisfactory to Lender;
(l) there are no proceedings or actions which are threatened or pending
against the account debtors with respect to such Accounts which could
reasonably be expected to result in any material adverse change in any
such account debtor's financial condition;
(m) such Accounts of a single account debtor or its affiliates do not
constitute more than fifteen (15%) percent of all otherwise Eligible
Accounts of Borrowers or twenty-five (25%) percent of all otherwise
Eligible Accounts of Borrowers in the case of any of the account
debtors listed on Exhibit B hereof or its affiliates (but the portion
of the Accounts not in excess of such percentage may be deemed
Eligible Accounts);
(n) such Accounts are not owed by an account debtor who has Accounts
unpaid more than sixty (60) days after the original due date for them
or more than ninety (90) days after the date of the original invoice
for them which constitute more than fifty (50%) percent of the total
Accounts of such account debtor;
(o) such Accounts are owed by account debtors whose total indebtedness to
such Borrower does not exceed the credit limit with respect to such
account debtors as determined by Lender in good faith
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from time to time (but the portion of the Accounts not in excess of
such credit limit may still be deemed Eligible Accounts); and
(p) such Accounts are owed by account debtors deemed creditworthy at all
times by Lender, as determined by Lender in good faith.
General criteria for Eligible Accounts may be established and revised from
time to time by Lender in good faith. Any Accounts which are not Eligible
Accounts shall nevertheless be part of the Collateral.
1.10 "Eligible Equipment" of a Borrower shall mean Equipment owned by such
Borrower which is in good order, repair, running and marketable condition,
located at such Borrower's premises and acceptable to Lender in all respects.
General criteria for Eligible Equipment may be established and revised from time
to time by Lender in good faith. In determining such acceptability Lender may,
but need not, rely on reports furnished to Lender by such 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, Eligible Equipment
shall not include Equipment at the premises of third parties or subject to a
security interest or lien in favor of any third parties except those otherwise
permitted in this Agreement, Equipment which is not subject to Lender's
perfected security interest, fixtures, worn-out, obsolete or defective Equipment
or Equipment not used or usable in the ordinary course of such Borrower's
business as presently conducted; provided, however, any Equipment which would
otherwise be deemed Eligible Equipment at locations which are not owned and
operated by such Borrower may nevertheless be considered Eligible Equipment if
Lender shall have received an agreement in writing, in form and substance
satisfactory to Lender, from the owner and/or operator of such location, as the
case may be, pursuant to which such owner and/or operator, if required by
Lender: (a) acknowledges the first priority lien of Lender on such Equipment,
(b) agrees to waive any and all claims such owner and/or operator may, at any
time, have against such Equipment and (c) grants to Lender the right to enter
and remain on the premises in order to exercise Lender's rights and remedies on
terms acceptable to Lender. Any Equipment which Lender determines to be
ineligible or unacceptable for purposes of the lending formula shall
nevertheless be and remain at all times part of the Collateral.
1.11 "Eligible Inventory" of a Borrower shall mean Inventory of such
Borrower consisting of finished goods held for resale in the ordinary course of
the business of such Borrower and raw materials for such finished goods which
are acceptable to Lender based on the criteria set forth below. In general,
Eligible Inventory shall not include (a) work-in-process; (b) components which
are not part of finished goods; (c) spare parts for equipment; (d) packaging and
shipping materials; (e) supplies used or consumed in such Borrower's business;
(f) Inventory at premises other than those owned and controlled by a Borrower,
except if Lender shall have received an agreement in writing from the person in
possession of such Inventory and/or the owner or operator of such premises in
form and substance satisfactory to Lender acknowledging Lender's first priority
security interest in the Inventory, waiving security interests and claims by
such person against the Inventory and permitting Lender access to, and the right
to remain on, the premises so as to exercise Lender's rights and remedies and
otherwise deal with the Collateral; (g) Inventory subject to a security interest
or lien in favor of any person other than Lender except those permitted in this
Agreement; (h) xxxx and hold goods; (i) unserviceable, obsolete or slow moving
Inventory; (j) Inventory which is not subject to the first priority, valid and
perfected security interest of Lender; (k) returned, damaged and/or defective
Inventory; and (l) Inventory purchased or sold on consignment. General criteria
for Eligible Inventory may be established and revised from time to time by
Lender in good faith. Any Inventory which is not Eligible Inventory shall
nevertheless be part of the Collateral.
1.12 "Eligible Real Property" shall mean Real Property for which Lender
has received, in form and substance satisfactory to Lender, (a) a Mortgage,
which shall grant in favor of Lender a first priority mortgage lien upon and
security interest in the Real Property, (b) a Phase I environmental audit
conducted by an independent environmental engineering firm acceptable to Lender,
and in form, scope and methodology acceptable to Lender, confirming, as of a
date acceptable to Lender that the Real Property does not contain any Hazardous
Materials, and (c) a valid and effective title insurance policy issued by a
title insurance company and agent acceptable to Lender (i) insuring the
priority, amount and validity of the Mortgage with respect to the Real Property,
(ii) insuring against matters that could be disclosed by surveys and
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(iii) containing any legally available endorsements, assurances or affirmative
coverage requested by Lender for protection of its interest.
1.13 "Environmental Laws" shall mean all federal, state, district, local
and foreign laws, rules, regulations, ordinances, and consent decrees relating
to health, safety, hazardous substances, pollution and environmental matters, as
now or at any time hereafter in effect, applicable to a Borrower's business and
facilities (whether or not owned by it), including laws relating to emissions,
discharges, releases or threatened releases of pollutants, contamination,
chemicals, or hazardous, toxic or dangerous substances, materials or wastes into
the environment (including, without limitation, ambient air, surface water,
ground water, land surface or subsurface strata) or otherwise relating to the
generation, manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, chemicals, or
hazardous, toxic or dangerous substances, materials or wastes.
1.14 "Equipment" of a Borrower shall mean all of such Borrower's now owned
and hereafter acquired equipment, machinery, computers and computer hardware and
software (whether owned or licensed), vehicles, tools, furniture, fixtures, all
attachments, accessions and property now or hereafter affixed thereto or used in
connection therewith, and substitutions and replacements thereof, wherever
located.
1.15 "ERISA" shall mean the United States Employee Retirement Income
Security Act of 1974, as the same now exists or may hereafter from time to time
be amended, modified, recodified or supplemented, together with all rules,
regulations and interpretations thereunder or related thereto.
1.16 "ERISA Affiliate" shall mean any person required to be aggregated
with a Borrower or any of its subsidiaries under Section 414(b), 414(c), 414(m)
or 414(o) of the Code.
1.17 "Event of Default" shall mean the occurrence or existence of any
event or condition described in Section 10.1 hereof.
1.18 "Excess Availability" shall mean the amount, as determined by Lender,
calculated at any time, equal to: (a) the lesser of (i) the combined amount of
the Revolving Loans available to Borrowers as of such time based on the
applicable lending formulas multiplied by the Net Amount of Eligible Accounts
and the Value of Eligible Inventory, Eligible Equipment and Eligible Real
Property, as determined by Lender, and subject to the sublimits and Availability
Reserves from time to time established by Lender hereunder and (ii) the Maximum
Credit for all Borrowers, minus (b) the sum of: (i) the aggregate amount of all
then outstanding and unpaid Obligations of Borrowers plus (ii) the aggregate
amount of all trade payables of Borrowers which are more than thirty (30) days
past due as of such time.
1.19 "Financing Agreements" shall mean, collectively, this Agreement and
all notes, guarantees, security agreements and other agreements, documents and
instruments now or at any time hereafter executed and/or delivered by either
Borrower or any Obligor in connection with this Agreement, as the same now exist
or may hereafter be amended, modified, supplemented, extended, renewed, restated
or replaced.
1.20 "GAAP" shall mean generally accepted 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 statements and pronouncements
of the Financial Accounting Standards Boards which are applicable to the
circumstances as of the date of determination consistently applied.
1.21 "Hazardous Materials" shall mean any hazardous, toxic or dangerous
substances, materials and wastes, including, without limitation, hydrocarbons
(including naturally occurring or man-made petroleum and hydrocarbons),
flammable explosives, asbestos, urea formaldehyde insulation, radioactive
materials, biological substances, polychlorinated biphenyls, pesticides,
herbicides and any other kind and/or type of pollutants or contaminants
(including, without limitation. materials which include hazardous constituents),
sewage, sludge, industrial slag, solvents and/or any other similar substances,
materials, or wastes and including any other substances, materials or wastes
that are or become regulated under any Environmental Law (including, without
limitation any that are or become classified as hazardous or toxic under any
Environmental Law).
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1.22 "Information Certificate" shall mean the Information Certificates of
Borrowers constituting Exhibit A hereto containing material information with
respect to Borrowers, their business and assets provided by or on behalf of
Borrowers to Lender in connection with the preparation of this Agreement and the
other Financing Agreements and the financing arrangements provided for herein.
1.23 "Inventory" of a Borrower shall mean all of such Borrower's now owned
and hereafter existing or acquired raw materials, work in process, finished
goods and all other inventory of whatsoever kind or nature, wherever located.
1.24 "Letter of Credit Accommodations" shall mean the letters of credit,
merchandise purchase or other guaranties which are from time to time either (a)
issued or opened by Lender for the account of a Borrower or any Obligor
(including the existing Irrevocable Letter of Credit No. N-303283 dated December
23, 1993 originally issued by First Union National Bank (f/k/a First Fidelity
Bank, N.A., New Jersey) in the original amount of $5,325,000 for the account of
Xxxxx and naming The Bank of New York, NA, as trustee for the New Jersey
Economic Development Authority, as beneficiary, as amended) or (b) with respect
to which Lender has agreed to indemnify the issuer or guaranteed to the issuer
the performance by a Borrower of its obligations to such issuer.
1.25 "Loans" shall mean the Revolving Loans.
1.26 "Maximum Credit" shall mean the amount of $13,000,000.
1.27 "Mortgage" shall mean the Mortgage and Security Agreement, dated of
even date herewith, by Xxxxx in favor of Lender with respect to the Real
Property located in Somerville, New Jersey.
1.28 "Net Amount of Eligible Accounts" of a Borrower shall mean the gross
amount of Eligible Accounts of such Borrower less (a) sales, excise or similar
taxes included in the amount thereof and (b) returns, discounts, claims, credits
and allowances of any nature at any time issued, owing, granted, outstanding,
available or claimed with respect thereto.
1.29 "Obligations" shall mean any and all Revolving Loans, Letter of
Credit Accommodations and all other obligations, liabilities and indebtedness of
every kind, nature and description owing by any Borrower or all Borrowers to
Lender and/or its affiliates, including principal, interest, charges, fees,
costs and expenses, however evidenced, whether as principal, surety, endorser,
guarantor or otherwise, whether arising under this Agreement or otherwise,
whether now existing or hereafter arising, whether arising before, during or
after the initial or any renewal term of this Agreement or after the
commencement of any case with respect to a Borrower under the United States
Bankruptcy Code or any similar statute (including, without limitation, the
payment of interest and other amounts which would accrue and become due but for
the commencement of such case), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary, liquidated
or unliquidated, secured or unsecured, and however acquired by Lender.
1.30 "Obligor" shall mean any guarantor, endorser, acceptor, surety or
other person liable on or with respect to the Obligations or who is the owner of
any property which is security for the Obligations, other than Borrowers.
1.31 "Payment Account" shall have the meaning set forth in Section 6.3
hereof.
1.32 "Person" or "person" shall mean any individual, sole proprietorship,
partnership, limited liability company, corporation (including, without
limitation, any corporation which elects subchapter S status under the Internal
Revenue Code of 1986, as amended), business trust, unincorporated association,
joint stock corporation, trust, joint venture or other entity or any government
or any agency or instrumentality or political subdivision thereof.
1.33 "Prime Rate" shall mean the rate from time to time publicly announced
by CoreStates Bank, N.A., or its successors, at its office in Philadelphia,
Pennsylvania, as its prime rate, whether or not such announced rate is the best
rate available at such bank.
1.34 "Real Property" shall mean all now owned and hereafter acquired real
property of Borrowers, including leasehold interests, together with all
buildings, structures, and other improvements located thereon
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and all licenses, easements and appurtenances relating thereto, wherever
located, including the real property and related assets more particularly
described in the Mortgage located in Somerville, New Jersey.
1.35 "Records" of a Borrower shall mean all of such Borrower's present and
future books of account of every kind or nature, purchase and sale agreements,
invoices, ledger cards, bills of lading and other shipping evidence, statements,
correspondence, memoranda, credit files and other data relating to the
Collateral or any account debtor, together with the tapes, disks, diskettes and
other data and software storage media and devices, file cabinets or containers
in or on which the foregoing are stored (including any rights of such Borrower
with respect to the foregoing maintained with or by any other person).
1.36 "Revolving Loans" shall mean the loans now or hereafter made by
Lender to or for the benefit of any Borrower on a revolving basis (involving
advances, repayments and readvances) as set forth in Section 2.1 hereof.
1.37 "Value" shall mean, as determined by Lender in good faith, (a) with
respect to Inventory, the lower of (i) cost computed on a first in first out
basis in accordance with GAAP or (ii) market value, (b) with respect to
Equipment, the orderly liquidation value, and (c) with respect to Real Property,
the fair market value; in each case described in subsection (b) and (c) hereof
as such value is set forth in an appraisal report(s) addressed to Lender, or
upon which Lender is expressly permitted to rely, prepared at Borrowers'
expense, by independent appraisers acceptable to Lender, in scope and
methodology acceptable to Lender.
SECTION 2. CREDIT FACILITIES
2.1 Revolving Loans.
(a) Subject to, and upon the terms and conditions contained herein, Lender
agrees to make Revolving Loans to each Borrower from time to time in
amounts requested by such Borrower up to the amount equal to the sum
of:
(i) eighty-five (85%) percent of the Net Amount of Eligible Accounts
of such Borrower, plus
(ii) the lesser of: (A) fifty (50%) percent of the Value of Eligible
Inventory of such Borrower; or (B) $3,000,000, plus
(iii) the lesser of (A) eighty (80%) percent of the Value of Eligible
Equipment or (B) $3,500,000, plus
(iv) the lesser of (A) fifty (50%) percent of the Value of Eligible
Real Property or (B) $2,000,000, less
(v) any Availability Reserves.
(b) Lender may, in its discretion, from time to time, upon not less than
five (5) business days prior notice to a Borrower, (i) reduce the
lending formula with respect to Eligible Accounts to the extent that
Lender determines in good faith that: (A) the dilution with respect to
the Accounts for any period (based on the ratio of (1) the aggregate
amount of reductions in Accounts other than as a result of payments in
cash to (2) the aggregate amount of total sales) has increased in any
material respect or may be reasonably anticipated to increase in any
material respect above historical levels, or (B) the general
creditworthiness of account debtors of Borrowers has declined or (ii)
reduce the lending formula(s) with respect to Eligible Inventory to
the extent that Lender determines in good faith that: (A) the number
of days of the turnover of the Inventory for any period has changed in
any material respect or (B) the liquidation value of the Eligible
Inventory, or any category thereof, has materially decreased, or (C)
the nature and quality of the Inventory has materially deteriorated.
In determining whether to reduce the lending formula(s), Lender may
consider events, conditions, contingencies or risks which are also
considered in determining Eligible Accounts, Eligible Inventory or in
establishing Availability Reserves.
(c) Except in Lender's discretion, the aggregate amount of the Loans and
the Letter of Credit Accommodations outstanding at any time to any one
or all Borrowers shall not exceed the
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Maximum Credit and the Loans made pursuant to Section 2.1(a)(iii) and
(iv) shall not exceed, at any one time, an amount equal to (i)
$5,500,000 minus (ii) an amount equal to (A) $76,388 multiplied by (B)
the number of calendar months that have passed from the date hereof.
In the event that the outstanding amount of any component of the
Loans, or the aggregate amount of the outstanding Loans and Letter of
Credit Accommodations, exceed the amounts available under the lending
formulas, the sublimits for Letter of Credit Accommodations set forth
in Section 2.2(c) or the Maximum Credit, as applicable, such event
shall not limit, waive or otherwise affect any rights of Lender in
that circumstance or on any future occasions and Borrowers shall, upon
demand by Lender, which may be made at any time or from time to time,
immediately repay to Lender the entire amount of any such excess(es)
for which payment is demanded.
(d) For purposes only of applying the sublimit on Revolving Loans based on
Eligible Inventory pursuant to Section 2.1(a)(ii)(B), Lender may treat
the then undrawn amounts of outstanding Letter of Credit
Accommodations for the purpose of purchasing Eligible Inventory as
Revolving Loans to the extent Lender is in effect basing the issuance
of the Letter of Credit Accommodations on the Value of the Eligible
Inventory being purchased with such Letter of Credit Accommodations.
In determining the actual amounts of such Letter of Credit
Accommodations to be so treated for purposes of the sublimit, the
outstanding Revolving Loans and Availability Reserves shall be
attributed first to any components of the lending formulas in Section
2.1(a) that are not subject to such sublimit, before being attributed
to the components of the lending formulas subject to such sublimit.
2.2 Letter of Credit Accommodations.
(a) Subject to, and upon the terms and conditions contained herein, at the
request of a Borrower, Lender agrees to provide or arrange for Letter
of Credit Accommodations for the account of such Borrower containing
terms and conditions acceptable to Lender and the issuer thereof. Any
payments made by Lender to any issuer thereof and/or related parties
in connection with such Letter of Credit Accommodations shall
constitute additional Revolving Loans to such Borrower pursuant to
this Section 2.
(b) In addition to any charges, fees or expenses charged by any bank or
issuer in connection with the Letter of Credit Accommodations, each
Borrower shall pay to Lender a letter of credit fee at a rate equal to
one and five-eighths (1 5/8%) percent per annum on the daily
outstanding balance of the Letter of Credit Accommodations to such
Borrower for the immediately preceding month (or part thereof),
payable in arrears as of the first day of each succeeding month,
except that such Borrower shall pay to Lender such letter of credit
fee, at Lender's option, after notice to such Borrower, at a rate
equal to three and five-eighths (3 5/8%) percent per annum on such
daily outstanding balance for: (i) the period from and after the date
of termination or non-renewal hereof until Lender has received full
and final payment of all Obligations (notwithstanding entry of a
judgment against Borrower) and (ii) the period from and after the date
of the occurrence of an Event of Default for so long as such Event of
Default is continuing as determined by Lender. Such letter of credit
fee shall be calculated on the basis of a three hundred sixty (360)
day year and actual days elapsed and the obligation of Borrower to pay
such fee shall survive the termination or non-renewal of this
Agreement.
(c) No Letter of Credit Accommodations shall be available to a Borrower
unless on the date of the proposed issuance of any Letter of Credit
Accommodations, the Revolving Loans available to such Borrower
(subject to the Maximum Credit and any Availability Reserves) are
equal to or greater than: (i) if the proposed Letter of Credit
Accommodation is for the purpose of purchasing Eligible Inventory, the
sum of (A) the percentage equal to one hundred (100%) percent minus
the then applicable percentage set forth in Section 2.l(a)(ii)(A)
above of the Value of such Eligible Inventory, plus (B) freight,
taxes, duty and other amounts which Lender estimates must be paid in
connection with such Inventory upon arrival and for delivery to one of
such Borrower's locations for Eligible Inventory within the United
States of America and (ii) if the proposed Letter of Credit
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Accommodation is for any other purpose, an amount equal to one hundred
(100%) percent of the face amount thereof and all other commitments
and obligations made or incurred by Lender with respect thereto.
Effective on the issuance of each Letter of Credit Accommodation, an
Availability Reserve shall be established in the applicable amount set
forth in Section 2.2(c)(i) or Section 2.2(c)(ii).
(d) Except in Lender's discretion, the amount of all outstanding Letter of
Credit Accommodations and all other commitments and obligations made
or incurred by Lender in connection therewith shall not at any time
exceed $5,000,000. At any time an Event of Default exists or has
occurred and is continuing, upon Lender's request, each Borrower will
either furnish cash collateral to secure the reimbursement obligations
to the issuer in connection with any Letter of Credit Accommodations
to or for the account of such Borrower or furnish cash collateral to
Lender for such Letter of Credit Accommodations, and in either case,
the Revolving Loans otherwise available to such Borrower shall not be
reduced as provided in Section 2.2(c) to the extent of such cash
collateral.
(e) Each Borrower shall jointly and severally indemnify and hold Lender
harmless from and against any and all losses, claims, damages,
liabilities, costs and expenses which Lender may suffer or incur in
connection with any Letter of Credit Accommodations and any documents,
drafts or acceptances relating thereto, including, but not limited to,
any losses, claims, damages, liabilities, costs and expenses due to
any action taken by any issuer or correspondent with respect to any
Letter of Credit Accommodation, except as a result of Lender's own
acts or omissions constituting gross negligence or willful misconduct,
as determined pursuant to a final and non-appealable judgment or order
of a court of competent jurisdiction. Each Borrower assumes all risks
with respect to the acts or omissions of the drawer under or
beneficiary of any Letter of Credit Accommodation. Each Borrower
assumes all risks for, and agrees to pay, all foreign, Federal, State
and local taxes, duties and levies relating to any goods subject to
any Letter of Credit Accommodations or any documents, drafts or
acceptances thereunder. Each Borrower hereby releases and holds Lender
harmless from and against any acts, waivers, errors, delays or
omissions, whether caused by any Borrower, by any issuer or
correspondent or otherwise with respect to or relating to any Letter
of Credit Accommodation, except as a result of Lender's own acts or
omissions constituting gross negligence or willful misconduct, as
determined pursuant to a final and non-appealable judgment or order of
a court of competent jurisdiction. The provisions of this Section
2.2(e) shall survive the payment of Obligations and the termination or
non-renewal of this Agreement.
(f) Nothing contained herein shall be deemed or construed to grant any
Borrower any right or authority to pledge the credit of Lender in any
manner. Lender shall have no liability of any kind with respect to any
Letter of Credit Accommodation provided by an issuer other than Lender
unless Lender has duly executed and delivered to such issuer the
application or a guarantee or indemnification in writing with respect
to such Letter of Credit Accommodation. Each Borrower shall be bound
by any interpretation made in good faith by Lender, or any other
issuer or correspondent under or in connection with any Letter of
Credit Accommodation or any documents, drafts or acceptances
thereunder, notwithstanding that such interpretation may be
inconsistent with any instructions of a Borrower. Lender shall have
the sole and exclusive right and authority to, and Borrowers shall
not: (i) at any time an Event of Default exists or has occurred and is
continuing, (A) approve or resolve any questions of non-compliance of
documents, (B) give any instructions as to acceptance or rejection of
any documents or goods or (C) execute any and all applications for
steamship or airway guaranties, indemnities or delivery orders, and
(ii) at any time, except Borrowers may with the prior written approval
of Lender, (A) grant any extensions of the maturity of, time of
payment for, or time of presentation of, any drafts, acceptances, or
documents, and (B) agree to any amendments, renewals, extensions,
modifications, changes or cancellations of any of the terms or
conditions of any of the applications, Letter of Credit
Accommodations, or documents, drafts or acceptances thereunder or any
letters of credit included in the Collateral. Lender may take such
actions either in its own name or in the applicable Borrower's name.
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(g) Any rights, remedies, duties or obligations granted or undertaken by a
Borrower to any issuer or correspondent in any application for any
Letter of Credit Accommodation, or any other agreement in favor of any
issuer or correspondent relating to any Letter of Credit
Accommodation, shall be deemed to have been granted or undertaken by
such Borrower to Lender. Any duties or obligations undertaken by
Lender to any issuer or correspondent in any application for any
Letter of Credit Accommodation, or any other agreement by Lender in
favor of any issuer or correspondent relating to any Letter of Credit
Accommodation, shall be deemed to have been undertaken by the
applicable Borrower to Lender and to apply in all respects to such
Borrower. Nothing herein shall act as a waiver of Borrowers' rights to
a separate cause of action against any issuer of any Letter of Credit
Accommodation for wrongful payment by such issuer under a Letter of
Credit Accommodation.
2.3 Availability Reserves. All Revolving Loans otherwise available to a
Borrower pursuant to the lending formulas and subject to the Maximum Credit and
other applicable limits hereunder shall be subject to Lender's continuing right
to establish and revise Availability Reserves in good faith.
SECTION 3. INTEREST AND FEES
3.1 Interest.
(a) Borrowers shall pay to Lender interest on the outstanding principal
amount of the non-contingent Obligations that are then due and payable
at the rate of one (1%) percent per annum in excess of the Prime Rate,
except that, at Lender's option, after notice to Borrowers, Borrowers
shall pay to Lender interest at the rate of three (3%) percent per
annum in excess of the Prime Rate: (i) on the non-contingent
Obligations that are then due and payable for (A) the period from and
after the date of termination or non-renewal hereof until such time as
Lender has received full and final payment of all such Obligations
(notwithstanding entry of any judgment against Borrowers), and (B) the
period from and after the date of the occurrence of an Event of
Default for so long as such Event of Default is continuing and (ii) on
the Revolving Loans at any time outstanding in excess of the amounts
available to Borrowers under Section 2 (whether or not such
excess(es), arise or are made with or without Lender's knowledge or
consent and whether made before or after an Event of Default).
(b) Interest shall be payable by each Borrower to Lender monthly in
arrears not later than the first day of each calendar month and shall
be calculated on the basis of a three hundred sixty (360) day year and
actual days elapsed. The interest rate shall increase or decrease by
an amount equal to each increase or decrease in the Prime Rate
effective on the first day of the month after any change in such Prime
Rate is announced. The increase or decrease shall be based on the
Prime Rate in effect on the last day of the month in which any such
change occurs. All interest accruing hereunder on and after an Event
of Default or termination or non-renewal hereof shall be payable on
demand. In no event shall charges constituting interest payable by any
Borrower to Lender exceed the maximum amount or the rate permitted
under any applicable law or regulation, and if any such part or
provision of this Agreement is in contravention of any such law or
regulation, such part or provision shall be deemed amended to conform
thereto.
3.2 Closing Fee. Borrowers shall pay to Lender as a closing fee the amount
of $130,000, which fee shall be fully earned as of the date hereof, of which
$65,000 shall be payable on the date hereof, $32,500 shall be payable six (6)
months from the date hereof and $32,500 shall be payable one year from the date
hereof; provided, however, that if Borrowers have Adjusted Net Income in an
amount equal to or greater than $750,000 for the fiscal year of Borrowers ending
December 31, 1997 based upon their annual audited financial statements prepared
on a consolidated basis for such fiscal year and prepared and delivered pursuant
to Section 9.6(a) hereof and Borrowers have Excess Availability in an amount not
less than $1,000,000 for thirty (30) consecutive days immediately prior to the
date one year from the date hereof, then the total closing fee shall be reduced
to $97,500 and the last installment of the closing fee shall be reduced to zero
($0).
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3.3 Servicing Fee. Borrowers shall pay to Lender monthly a servicing fee
in an amount equal to $2,000 in respect of Lender's services for each month (or
part thereof) while this Agreement remains in effect and for so long thereafter
as any of the Loans or Letter of Credit Accommodations are outstanding, which
fee shall be fully earned as of and payable in advance on the date hereof and on
the first day of each month hereafter.
3.4 Unused Line Fee. Borrowers shall pay to Lender monthly an unused line
fee at a rate equal to three-eighths of one ( 3/8%) percent per annum calculated
upon the amount by which the Maximum Credit exceeds the average daily principal
balance of the outstanding Revolving Loans and Letter of Credit Accommodations
to Borrowers during the immediately preceding month (or part thereof) while this
Agreement is in effect and for so long thereafter as any of the non-contingent
Obligations are outstanding, which fee shall be payable on the first day of each
month in arrears.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions Precedent to Initial Loans and Letter of Credit
Accommodations. Each of the following is a condition precedent to Lender making
the initial Loans and providing the initial Letter of Credit Accommodations
hereunder:
(a) Lender shall have received evidence, in form and substance
satisfactory to Lender, that Lender has valid perfected and first
priority security interests in and liens upon the Collateral and any
other property which is intended to be security for the Obligations or
the liability of any Obligor in respect thereof, subject only to the
security interests and liens permitted herein or in the other
Financing Agreements; without limiting the generality of the
foregoing, Lender shall have received, in form and substance
satisfactory to Lender, all releases, terminations and such other
documents as Lender may request to evidence and effectuate the
termination by the existing lender or lenders to Borrowers of their
respective financing arrangements with Borrowers and the termination
and release by it or them, as the case may be, of any interest in and
to any assets and properties of Borrowers and each Obligor, duly
authorized, executed and delivered by it or each of them, including,
but not limited to, (i) UCC termination statements for all UCC
financing statements previously filed by it or any of them or their
predecessors, as secured party and either Borrower, any affiliate or
former affiliate of Borrowers, or any Obligor, as debtor, if
applicable, and (ii) satisfactions and discharges of any mortgages,
deeds of trust or deeds to secure debt by either Borrower, any
affiliate or former affiliate of Borrowers, or any Obligor in favor of
such existing lender or lenders, in form acceptable for recording in
the appropriate government office;
(b) all requisite corporate action and proceedings in connection with this
Agreement and the other Financing Agreements shall be satisfactory in
form and substance to Lender, and Lender shall have received all
information and copies of all documents, including records of
requisite corporate action and proceedings which Lender may have
requested in connection therewith, such documents where requested by
Lender or its counsel to be certified by appropriate corporate
officers or governmental authorities;
(c) no material adverse change shall have occurred in the assets, business
or prospects of any Borrower since the date of Lender's latest field
examination and no change or event shall have occurred which would
impair the ability of any Borrower or any Obligor to perform its
obligations hereunder or under any of the other Financing Agreements
to which it is a party or of Lender to enforce the Obligations or
realize upon the Collateral;
(d) Lender shall have completed a field review of the Records and such
other information with respect to the Collateral as Lender may require
to determine the amount of Revolving Loans available to Borrowers, the
results of which shall be satisfactory to Lender, not more than three
(3) business days prior to the date hereof;
(e) Lender shall have received, in form and substance satisfactory to
Lender, all consents, waivers, acknowledgments and other agreements
from third persons which Lender may deem necessary or desirable in
order to permit, protect and perfect its security interests in and
liens upon the Collateral
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or to effectuate the provisions or purposes of this Agreement and the
other Financing Agreements, including acknowledgements by lessors,
mortgagees and warehousemen of Lender's security interests in the
Collateral, waivers by such persons of any security interests, liens
or other claims by such persons to the Collateral and agreements
permitting Lender access to, and the right to remain on, the premises
to exercise its rights and remedies and otherwise deal with the
Collateral;
(f) the Excess Availability as determined by Lender, as of the date
hereof, shall be not less than $1,000,000 for Borrowers after giving
effect to the initial Loans made or to be made and Letter of Credit
Accommodations issued or to be issued in connection with the initial
transactions hereunder;
(g) Lender shall have received an environmental audit of Xxxxx'x plant and
the Real Property located at 000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx conducted by an independent environmental engineering firm
acceptable to Lender, and in form, scope and methodology satisfactory
to Lender, confirming (i) Borrowers are in compliance with all
material applicable Environmental Laws and (ii) the absence of any
material environmental problems;
(h) Lender shall have received, in form and substance satisfactory to
Lender, a valid and effective title insurance policy issued by a
company and agent acceptable to Lender (i) insuring the priority,
amount and sufficiency of the Mortgage, (ii) insuring against matters
that would be disclosed by surveys and (iii) containing any legally
available endorsements, assurances or affirmative coverage requested
by Lender for protection of its interests;
(i) Lender shall have received evidence of insurance and loss payee
endorsements required hereunder and under the other Financing
Agreements, in form and substance satisfactory to Lender, and
certificates of insurance policies and/or endorsements naming Lender
as loss payee;
(j) Lender shall have received, in form and substance satisfactory to
Lender, such opinion letters of counsel to Borrowers and any obligors
with respect to the Financing Agreements and such other matters as
Lender may request; and
(k) the other Financing Agreements and all instruments and documents
hereunder and thereunder shall have been duly executed and delivered
to Lender, in form and substance satisfactory to Lender.
4.2 Conditions Precedent to All Loans and Letter of Credit
Accommodations. Each of the following is an additional condition precedent to
Lender making Loans and/or providing Letter of Credit Accommodations to
Borrowers, including the initial Loans and Letter of Credit Accommodations and
any future Loans and Letter of Credit Accommodations:
(a) all representations and warranties contained herein and in the other
Financing Agreements shall be true and correct in all material
respects with the same effect as though such representations and
warranties had been made on and as of the date of the making of each
such Loan or providing each such Letter of Credit Accommodation and
after giving effect thereto; and
(b) no Event of Default and no event or condition which, with notice or
passage of time or both, would constitute an Event of Default, shall
exist or have occurred and be continuing on and as of the date of the
making of such Loan or providing each such Letter of Credit
Accommodation and after giving effect thereto.
SECTION 5. GRANT OF SECURITY INTEREST
5.1 To secure payment and performance of all Obligations, each Borrower
hereby grants to Lender a continuing security interest in, a lien upon, and a
right of set off against, and hereby assigns to Lender as security, the
following property and interests in property of such Borrower, whether now owned
or hereafter acquired or existing, and wherever located (collectively, the
"Collateral"):
(a) Accounts;
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(b) all present and future contract rights, general intangibles
(including, but not limited to, tax and duty refunds, registered and
unregistered patents, trademarks, service marks, copyrights, trade
names, applications for the foregoing, trade secrets, goodwill,
processes, drawings, blueprints, customer lists, licenses, whether as
licensor or licensee, chooses in action and other claims and existing
and future leasehold interests in equipment, real estate and
fixtures), chattel paper, documents, instruments, securities and other
investment property, letters of credit, bankers' acceptances and
guaranties;
(c) all present and future monies, securities (other than the capital
stock of the Canadian Subsidiary), credit balances, deposits, deposit
accounts and other property of such Borrower now or hereafter held or
received by or in transit to Lender or its affiliates or at any other
depository or other institution from or for the account of such
Borrower, whether for safekeeping, pledge, custody, transmission,
collection or otherwise, and all present and future liens, security
interests, rights, remedies, title and interest in, to and in respect
of Accounts and other Collateral, including (i) rights and remedies
under or relating to guaranties, contracts of suretyship, letters of
credit and credit and other insurance related to the Collateral, (ii)
rights of stoppage in transit, replevin, repossession, reclamation and
other rights and remedies of an unpaid vendor, lienor or secured
party, (iii) goods described in invoices, documents, contracts or
instruments with respect to, or otherwise representing or evidencing,
Accounts or other Collateral, including returned, repossessed and
reclaimed goods, and (iv) deposits by and property of account debtors
or other persons securing the obligations of account debtors;
(d) Inventory;
(e) Equipment;
(f) Real Property;
(g) Records; and
(h) all products and proceeds of the foregoing, in any form, including
insurance proceeds and all claims against third parties for loss or
damage to or destruction of any or all of the foregoing.
5.2 Notwithstanding anything to the contrary set forth in Section 5.1
above, the types or items of Collateral described in such Section shall not
include any capital stock of the Canadian Subsidiary owned by Xxxxx.
SECTION 6. COLLECTION AND ADMINISTRATION
6.1 Borrowers' Loan Accounts. Lender shall maintain one or more loan
account(s) on its books in which shall be recorded (a) all Loans, Letter of
Credit Accommodations and other Obligations and the Collateral, (b) all payments
made by or on behalf of each Borrower and (c) all other appropriate debits and
credits as provided in this Agreement, including fees, charges, costs, expenses
and interest. All entries in the loan account(s) shall be made in accordance
with Lender's customary practices as in effect from time to time.
6.2 Statements. Lender shall render to Xxxxx each month a statement
setting forth the balance in the Borrowers' loan account(s) maintained by Lender
for Borrowers pursuant to the provisions of this Agreement, including principal,
interest, fees, costs and expenses. Each such statement shall be subject to
subsequent adjustment by Lender but shall, absent manifest errors or omissions,
be considered correct and deemed accepted by Borrowers and conclusively binding
upon Borrowers as an account stated except to the extent that Lender receives a
written notice from a Borrower of any specific exceptions of such Borrower
thereto within sixty (60) days after the date such statement has been mailed by
Lender. Until such time as Lender shall have rendered to Xxxxx a written
statement as provided above, the balance in Borrowers' loan account(s) shall be
presumptive evidence of the amounts due and owing to Lender by Borrower.
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6.3 Collection of Accounts.
(a) Each Borrower shall establish and maintain, at its expense, blocked
accounts or lockboxes and related blocked accounts (in either case,
"Blocked Accounts"), as Lender may specify, with such banks as are
acceptable to Lender into which such Borrower shall promptly deposit
and direct its account debtors to directly remit all payments on
Accounts and all payments constituting proceeds of Inventory or other
Collateral in the identical form in which such payments are made,
whether by cash, check or other manner. The banks at which the Blocked
Accounts are established shall enter into an agreement, in form and
substance satisfactory to Lender, providing that all items received or
deposited in the Blocked Accounts are the property of Lender, that the
depository bank has no lien upon, or right to setoff against, the
Blocked Accounts, the items received for deposit therein, or the funds
from time to time on deposit therein and that the depository bank will
wire, or otherwise transfer, in immediately available funds, on a
daily basis, all funds received or deposited into the Blocked Accounts
to such bank account of Lender as Lender may from time to time
designate for such purpose ("Payment Account"). Each Borrower agrees
that all payments made to such Blocked Accounts or other funds
received and collected by Lender, whether on the Accounts or as
proceeds of Inventory or other Collateral or otherwise shall be the
property of Lender.
(b) For purposes of calculating the amount of the Loans available to
Borrowers, such payments will be applied (conditional upon final
collection) to the Obligations then due and payable on the business
day of receipt by Lender of immediately available funds in the Payment
Account provided such payments and notice thereof are received in
accordance with Lender's usual and customary practices as in effect
from time to time and within sufficient time to credit Borrowers' loan
account(s) on such day, and if not, then on the next business day. For
the purposes of calculating interest on the Obligations, such payments
or other funds received will be applied (conditional upon final
collection) to the Obligations one (1) business day following the date
of receipt of immediately available funds by Lender in the Payment
Account provided such payments or other funds and notice thereof are
received in accordance with Lender's usual and customary practices as
in effect from time to time and within sufficient time to credit
Borrowers' loan account(s) on such day and if not, then on the next
business day.
(c) Each Borrower and all of its affiliates, subsidiaries, shareholders,
directors, employees or agents shall, acting as trustee for Lender,
receive, as the property of Lender, any monies, checks, notes, drafts
or any other payment relating to and/or proceeds of Accounts or other
Collateral which come into their possession or under their control and
immediately upon receipt thereof, shall deposit or cause the same to
be deposited in the Blocked Accounts, or remit the same or cause the
same to be remitted, in kind, to Lender. In no event shall the same be
commingled with any Borrower's own funds. Each Borrower agrees to
reimburse Lender on demand for any amounts owed or paid to any bank at
which a Blocked Account is established or any other bank or person
involved in the transfer of funds to or from the Blocked Accounts
arising out of Lender's payments to or indemnification of such bank or
person. The obligation of each Borrower to reimburse Lender for such
amounts pursuant to this Section 6.3 shall survive the termination or
non-renewal of this Agreement.
6.4 Payments. All Obligations shall be payable to the Payment Account as
provided in Section 6.3 or such other place as Lender may designate from time to
time. Lender may apply payments received or collected from a Borrower or for the
account of a Borrower (including the monetary proceeds of collections or of
realization upon any Collateral) to such of the Obligations then due and
payable, in such order and manner as Lender determines. At Lender's option, all
principal, interest, fees, costs, expenses and other charges provided for in
this Agreement or the other Financing Agreements may be charged directly to the
loan account(s) of Borrowers. Each Borrower shall make all payments to Lender on
the Obligations free and clear of, and without deduction or withholding for or
on account of, any setoff, counterclaim, defense, duties, taxes, levies,
imposts, fees, deductions, withholding, restrictions or conditions of any kind.
If after receipt of any payment of, or proceeds of Collateral applied to the
payment of, any of the Obligations, Lender is required to surrender or return
such payment or proceeds to any Person for any reason, then the Obligations
intended to
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be satisfied by such payment or proceeds shall be reinstated and continue and
this Agreement shall continue in full force and effect as if such payment or
proceeds had not been received by Lender. Each Borrower shall be jointly and
severally liable to pay to Lender, and does hereby jointly and severally
indemnify and hold Lender harmless for the amount of any payments or proceeds
surrendered or returned. This Section 6.4 shall remain effective notwithstanding
any contrary action which may be taken by Lender in reliance upon such payment
or proceeds. This Section 6.4 shall survive the payment of the Obligations and
the termination or non-renewal of this Agreement.
6.5 Authorization to Make Loans. Lender is authorized to make the Loans
and provide the Letter of Credit Accommodations to a Borrower based upon
telephonic or other instructions received from anyone purporting to be an
officer of such Borrower or other authorized person or, at the discretion of
Lender, if such Loans are necessary to satisfy any Obligations then due and
payable. All requests for Loans or Letter of Credit Accommodations hereunder
shall specify the date on which the requested advance is to be made or Letter of
Credit Accommodations established (which day shall be a business day) and the
amount of the requested Loan. Requests received after 11:00 a.m. New York time
on any day shall be deemed to have been made as of the opening of business on
the immediately following business day. All Loans and Letter of Credit
Accommodations under this Agreement shall be conclusively presumed to have been
made to, and at the request of and for the benefit of, a Borrower when deposited
to the credit of such Borrower or otherwise disbursed or established in
accordance with the instructions of such Borrower or in accordance with the
terms and conditions of this Agreement.
6.6 Use of Proceeds. Borrowers shall use the initial proceeds of the Loans
provided by Lender to Borrowers hereunder only for: (a) payments to each of the
persons listed in the disbursement direction letter furnished by Borrowers to
Lender on or about the date hereof and (b) costs, expenses and fees in
connection with the preparation, negotiation, execution and delivery of this
Agreement and the other Financing Agreements. All other Loans made or Letter of
Credit Accommodations provided by Lender to Borrowers pursuant to the provisions
hereof shall be used by Borrowers only for general operating, working capital
and other proper corporate purposes of Borrowers not otherwise prohibited by the
terms hereof. None of the proceeds will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin security or for the purposes of
reducing or retiring any indebtedness which was originally incurred to purchase
or carry any margin security or for any other purpose which might cause any of
the Loans to be considered a "purpose credit" within the meaning of Regulation G
of the Board of Governors of the Federal Reserve System, as amended.
6.7 Appointment of Xxxxx as Agent for Borrowers. The Borrowers, other than
Xxxxx, hereby irrevocably appoint Xxxxx, and each officer thereof, as their
agent and attorney-in-fact to request Loans and Letter of Credit Accommodations
on their behalf, at Lender's option, to receive disbursements of Loans on their
behalf (which may be made to the same account of Xxxxx to which disbursements of
Loans to Xxxxx are made), to receive notices and statements of account from
Lender, to take such other actions on their behalf as is provided hereunder or
under any of the other Financing Agreements and generally to deal with Lender on
their behalf, for all matters pertaining to the financing arrangements under
this Agreement.
SECTION 7. COLLATERAL REPORTING AND COVENANTS
7.1 Collateral Reporting. Each Borrower shall provide Lender with the
following documents in a form satisfactory to Lender in Lender's reasonable
determination: (a) on a regular basis as required by Lender, a schedule of sales
made, credits issued and cash received; (b) on a monthly basis or more
frequently as Lender may reasonably request, (i) perpetual inventory reports,
(ii) inventory reports by category and (iii) agings of accounts receivable; (iv)
agings of accounts payable, (c) upon Lender's reasonable request, (i) copies of
customer statements and credit memos, remittance advices and reports, and copies
of deposit slips and bank statements, (ii) copies of shipping and delivery
documents, and (iii) copies of purchase orders, invoices and delivery documents
for Inventory and Equipment acquired by such Borrower; and (d) such other
reports as to the Collateral as Lender shall reasonably request from time to
time. If any of a Borrower's records or reports of the Collateral are prepared
or maintained by an accounting service, contractor, shipper or other agent, such
Borrower hereby irrevocably authorizes such service, contractor, shipper or
agent to deliver such records,
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reports, and related documents to Lender and to follow Lender's instructions
with respect to further services at any time that an Event of Default exists or
has occurred and is continuing.
7.2 Accounts Covenants.
(a) Each Borrower shall notify Lender promptly of: (i) any material delay
in such Borrower's performance of any of its obligations to any
account debtor or the assertion of any material claims, offsets,
defenses or counterclaims by any account debtor, or any disputes with
account debtors, or any settlement, adjustment or compromise thereof,
(ii) all material adverse information relating to the financial
condition of any account debtor of which such Borrower has actual
knowledge and (iii) any event or circumstance which, to such
Borrower's knowledge, would cause Lender to consider any then existing
Accounts as no longer constituting Eligible Accounts. No credit,
discount, allowance or extension or agreement for any of the foregoing
shall be granted to any account debtor without Lender's consent,
except in the ordinary course of a Borrower's business in accordance
with practices and policies previously disclosed to Lender. So long as
no Event of Default exists or has occurred and is continuing, each
Borrower may settle, adjust or compromise any claim, offset,
counterclaim or dispute with any account debtor. At any time that an
Event of Default exists or has occurred and is continuing, Lender
shall, at its option, have the exclusive right to settle, adjust or
compromise any claim, offset, counterclaim or dispute with account
debtors or grant any credits, discounts or allowances.
(b) Without limiting the obligation of Borrower to deliver any other
information to Lender, each Borrower shall promptly report to Lender
any return of Inventory by any one account debtor if the Inventory so
returned in each such case has a value in excess of $25,000. At any
time that Inventory is returned, reclaimed or repossessed, the Account
(or portion thereof) which arose from the sale of such returned,
reclaimed or repossessed Inventory shall not be deemed an Eligible
Account. In the event any account debtor returns Inventory to a
Borrower when an Event of Default exists or has occurred and is
continuing, such Borrower shall, upon Lender's request, (i) hold the
returned Inventory in trust for Lender, (ii) segregate all returned
Inventory from all of its other property, (iii) dispose of the
returned Inventory solely according to Lender's instructions, and (iv)
not issue any credits, discounts or allowances with respect thereto
without Lender's prior written consent.
(c) With respect to each Account: (i) the amounts shown on any invoice
delivered to Lender or schedule thereof delivered to Lender shall be
true and complete, (ii) no payments shall be made thereon except
payments immediately delivered to Lender pursuant to the terms of this
Agreement, (iii) no credit, discount, allowance or extension or
agreement for any of the foregoing shall be granted to any account
debtor except as reported to Lender in accordance with this Agreement
and except for credits, discounts, allowances or extensions made or
given in the ordinary course of a Borrower's business in accordance
with practices and policies previously disclosed to Lender, (iv) there
shall be no setoffs, deductions, contras, defenses, counterclaims or
disputes existing or asserted with respect thereto known to Borrowers
except as reported to Lender in accordance with the terms of this
Agreement, (v) none of the transactions giving rise thereto will
violate any applicable State or Federal laws or regulations, all
documentation relating thereto will be legally sufficient under such
laws and regulations and all such documentation will be legally
enforceable in accordance with its terms.
(d) Lender shall have the right at any time or times, in Lender's name, or
in the name of a nominee of Lender, to verify the validity, amount or
any other matter relating to any Account or other Collateral, by mail,
telephone, facsimile transmission or otherwise.
(e) Each Borrower shall deliver or cause to be delivered to Lender, with
appropriate endorsement and assignment, with full recourse to
Borrower, all chattel paper and instruments which such Borrower now
owns or may at any time acquire immediately upon such Borrower's
receipt thereof, except as Lender may otherwise agree.
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(f) Lender may, at any time or times that an Event of Default exists or
has occurred and is continuing, (i) notify any or all account debtors
that the Accounts have been assigned to Lender and that Lender has a
security interest therein and Lender may direct any or all accounts
debtors to make payment of Accounts directly to Lender, (ii) extend
the time of payment of, compromise, settle or adjust for cash, credit,
return of merchandise or otherwise, and upon any terms or conditions,
any and all Accounts or other obligations included in the Collateral
and thereby discharge or release the account debtor or any other party
or parties in any way liable for payment thereof without affecting any
of the Obligations, (iii) demand, collect or enforce payment of any
Accounts or such other obligations, but without any duty to do so and
apply such collected amounts to the Obligations then due and payable,
and Lender shall not be liable for its failure to collect or enforce
the payment thereof nor for the negligence of its agents or attorneys
with respect thereto and (iv) take whatever other action Lender may
deem necessary or desirable for the protection of its interests. At
any time that an Event of Default exists or has occurred and is
continuing, at Lender's request, all invoices and statements sent to
any account debtor shall state that the Accounts and such other
obligations have been assigned to Lender and are payable directly and
only to Lender and each Borrower shall deliver to Lender such
originals of documents evidencing the sale and delivery of goods or
the performance of services giving rise to any Accounts as Lender may
require.
7.3 Inventory Covenants. With respect to the Inventory: (a) each Borrower
shall at all times maintain inventory records reasonably satisfactory to Lender,
keeping correct and accurate records itemizing and describing the kind, type,
quality and quantity of Inventory, such Borrower's cost therefor and daily
withdrawals therefrom and additions thereto; (b) each Borrower shall conduct a
physical count of the Inventory at least once each year, but at any time or
times as Lender may request on or after an Event of Default, and promptly
following such physical inventory shall supply Lender with a report in the form
and with such specificity as may be reasonably satisfactory to Lender concerning
such physical count; (c) no Borrower shall remove any Inventory from the
locations set forth or permitted herein, without the prior written consent of
Lender, except for sales of Inventory in the ordinary course of such Borrower's
business and except to move Inventory directly from one location set forth or
permitted herein to another such location; (d) on or after an Event of Default,
each Borrower shall, at its expense, at any time or times as Lender may request,
deliver or cause to be delivered to Lender written reports or appraisals as to
the Inventory in form, scope and methodology acceptable to Lender and by an
appraiser acceptable to Lender, addressed to Lender or upon which Lender is
expressly permitted to rely; (e) each Borrower shall produce, use, store and
maintain the Inventory, with all reasonable care and caution and in accordance
with applicable standards of any insurance and in conformity with applicable
laws (including, but not limited to, the requirements of the Federal Fair Labor
Standards Act of 1938, as amended and all rules, regulations and orders related
thereto); (f) each Borrower assumes all responsibility and liability arising
from or relating to the production, use, sale or other disposition of the
Inventory; (g) no Borrower shall sell Inventory to any customer on approval, or
any other basis which entitles the customer to return or may obligate such
Borrower to repurchase such Inventory; (h) Borrower shall keep the Inventory in
good and marketable condition; and (i) no Borrower shall without prior written
notice to Lender, acquire or accept any Inventory on consignment or approval.
7.4 Equipment Covenants. With respect to the Equipment: (a) on or after
an Event of Default, Borrowers shall, at their expense, at any time or times as
Lender may request, deliver or cause to be delivered to Lender written reports
or appraisals as to the Equipment in form, scope and methodology acceptable to
Lender and by an appraiser acceptable to Lender; (b) Borrowers shall keep the
Equipment in good order, repair, running and marketable condition (ordinary wear
and tear excepted); (c) Borrowers shall use the Equipment with all reasonable
care and caution and in accordance with applicable standards of any insurance
and in conformity with all applicable laws; (d) the Equipment is and shall be
used in each Borrower's business and not for personal, family, household or
farming use; (e) Borrowers shall not remove any Equipment from the locations set
forth or permitted herein, except to the extent necessary to have any Equipment
repaired or maintained in the ordinary course of the business of such Borrower
or to move Equipment directly from one location set forth or permitted herein to
another such location and except for the movement of motor vehicles used by or
for the benefit of Borrowers in the ordinary course of business; (f) the
Equipment is now and shall remain personal property and no Borrower shall permit
any of the Equipment to be or become a part of or 17
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affixed to real property; and (g) each Borrower assumes all responsibility and
liability arising from the use of the Equipment.
7.5 Real Property Covenants. With respect to the Real Property, on or
after an Event of Default, Borrowers shall, at their expense, at any time or
times as Lender may request, deliver or cause to be delivered to Lender written
reports or appraisals as to the Real Property in form, scope and methodology
acceptable to Lender and by an appraiser acceptable to Lender.
7.6 Power of Attorney. Each Borrower hereby irrevocably designates and
appoints Lender (and all persons designated by Lender) as such Borrower's true
and lawful attorney-in-fact, and authorizes Lender, in such Borrower's or
Lender's name, to: (a) at any time an Event of Default exists or has occurred
and is continuing (i) demand payment on Accounts or other proceeds of Inventory
or other Collateral, (ii) enforce payment of Accounts by legal proceedings or
otherwise, (iii) exercise all of such Borrower's rights and remedies to collect
any Account or other Collateral, (iv) sell or assign any Account upon such
terms, for such amount and at such time or times as the Lender deems advisable,
(v) settle, adjust, compromise, extend or renew an Account, (vi) discharge and
release any Account, (vii) prepare, file and sign such Borrower's name on any
proof of claim in bankruptcy or other similar document against an account
debtor, (viii) notify the post office authorities to change the address for
delivery of such Borrower's mail to an address designated by Lender, and open
and dispose of all mail addressed to such Borrower, and (ix) do all acts and
things which are necessary, in Lender's determination, to fulfill such
Borrower's obligations under this Agreement and the other Financing Agreements
and (b) at any time to (i) take control in any manner of any item of payment or
proceeds thereof, (ii) have access to any lockbox or postal box into which such
Borrower's mail is deposited, (iii) such endorse Borrower's name upon any items
of payment or proceeds thereof and deposit the same in the Lender's account for
application to the Obligations, (iv) endorse such Borrower's name upon any
chattel paper, document, instrument, invoice, or similar document or agreement
relating to any Account or any goods pertaining thereto or any other Collateral,
(v) sign such Borrower's name on any verification of Accounts and notices
thereof to account debtors and (vi) execute in such Borrower's name and file any
UCC financing statements or amendments thereto. Each Borrower hereby releases
Lender and its officers, employees and designees from any liabilities arising
from any act or acts under this power of attorney and in furtherance thereof,
whether of omission or commission, except as a result of any such Person's own
gross negligence or wilful misconduct as determined pursuant to a final
non-appealable order of a court of competent jurisdiction.
7.7 Right to Cure. Lender may, at its option, (a) cure any default by a
Borrower under any agreement with a third party or pay or bond on appeal any
judgment entered against a Borrower, (b) discharge taxes, liens, security
interests or other encumbrances at any time levied on or existing with respect
to the Collateral and (c) pay any amount, incur any expense or perform any act
which, in Lender's judgment, is necessary or appropriate to preserve, protect,
insure or maintain the Collateral and the rights of Lender with respect thereto.
Lender may add any amounts so expended to the Obligations and charge the
applicable Borrower's account therefor, such amounts to be repayable by such
Borrower on demand. Lender shall be under no obligation to effect such cure,
payment or bonding and shall not, by doing so, be deemed to have assumed any
obligation or liability of either Borrower. Any payment made or other action
taken by Lender under this Section shall be without prejudice to any right to
assert an Event of Default hereunder and to proceed accordingly.
7.8 Access to Premises. From time to time as requested by Lender, at the
cost and expense of Borrowers, (a) Lender or its designee shall have complete
access to all of Borrowers' premises during normal business hours and after
notice to the applicable Borrower, or at any time and without notice to any
Borrower if an Event of Default exists or has occurred and is continuing, for
the purposes of inspecting, verifying and auditing the Collateral and all of
Borrowers' books and records, including the Records, and (b) each Borrower shall
promptly furnish to Lender such copies of such books and records or extracts
therefrom as Lender may reasonably request, and (c) use during normal business
hours such of each Borrower's personnel, equipment, supplies and premises as may
be reasonably necessary for the foregoing and if an Event of Default exists or
has occurred and is continuing for the collection of Accounts and realization of
other Collateral.
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SECTION 8. REPRESENTATIONS AND WARRANTIES
Each Borrower hereby represents and warrants to Lender the following (which
shall survive the execution and delivery of this Agreement), the truth and
accuracy of which are a continuing condition of the making of Loans and
providing Letter of Credit Accommodations by Lender to either Borrower:
8.1 Corporate Existence. Power and Authority; Subsidiaries. Each Borrower
is a corporation duly organized and in good standing under the laws of its state
of incorporation and is duly qualified as a foreign corporation and in good
standing in all states or other jurisdictions where the nature and extent of the
business transacted by it or the ownership of assets makes such qualification
necessary, except for those jurisdictions in which the failure to so qualify
would not have a material adverse effect on either Borrower's financial
condition, results of operation or business or the rights of Lender in or to any
of the Collateral. The execution, delivery and performance of this Agreement,
the other Financing Agreements and the transactions contemplated hereunder and
thereunder are all within each Borrower's corporate powers, have been duly
authorized and are not in contravention of law or the terms of either Borrower's
certificate of incorporation, by-laws, or other organizational documentation, or
any indenture, agreement or undertaking to which either Borrower is a party or
by which either Borrower or its property are bound. This Agreement and the other
Financing Agreements constitute legal, valid and binding obligations of each
Borrower enforceable in accordance with their respective terms. No Borrower has
any subsidiaries except as set forth on the Information Certificate.
8.2 Financial Statements; No Material Adverse Change. All financial
statements relating to any Borrower which have been or may hereafter be
delivered by any Borrower to Lender have been prepared in accordance with GAAP
and fairly present the financial condition and the results of operation of the
applicable Borrower as at the dates and for the periods set forth therein.
Except as disclosed in any interim financial statements furnished by any
Borrower to Lender prior to the date of this Agreement, there has been no
material adverse change in the assets, liabilities, properties and condition,
financial or otherwise, of any Borrower, since the date of the most recent
audited financial statements furnished by Borrowers to Lender prior to the date
of this Agreement.
8.3 Chief Executive Office; Collateral Locations. The chief executive
office of each Borrower and each Borrower's Records concerning Accounts are
located only at the address set forth below and its only other places of
business and the only other locations of Collateral, if any, are the addresses
set forth in the Information Certificate, subject to the right of each Borrower
to establish new locations in accordance with Section 9.2 below. The Information
Certificate correctly identifies any of such locations which are not owned by
any Borrower and sets forth the owners and/or operators thereof and to the best
of each Borrower's knowledge, the holders of any mortgages on such locations.
8.4 Priority of Liens; Title to Properties. The security interests and
liens granted to Lender under this Agreement and the other Financing Agreements
constitute valid and perfected first priority liens and security interests in
and upon the Collateral subject only to the liens indicated on Schedule 8.4
hereto and the other liens permitted under Section 9.8 hereof. Each Borrower has
good and marketable title to all of its properties and assets subject to no
liens, mortgages, pledges, security interests, encumbrances or charges of any
kind, except those granted to Lender and such others as are specifically listed
on Schedule 8.4 hereto or permitted under Section 9.8 hereof.
8.5 Tax Returns. Each Borrower has filed, or caused to be filed, in a
timely manner all tax returns, reports and declarations which are required to be
filed by it (without requests for extension except as previously disclosed in
writing to Lender). All information in such tax returns, reports and
declarations is complete and accurate in all material respects. Each Borrower
has paid or caused to be paid all taxes due and payable or claimed due and
payable in any assessment received by it, except taxes the validity of which are
being contested in good faith by appropriate proceedings diligently pursued and
available to such Borrower and with respect to which adequate reserves have been
set aside on its books. Adequate provision has been made for the payment of all
accrued and unpaid Federal, State, county, local, foreign and other taxes
whether or not yet due and payable and whether or not disputed.
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8.6 Litigation. Except as set forth on the Information Certificate, there
is no present investigation by any governmental agency pending, or to the best
of any Borrower's knowledge threatened, against or affecting any Borrower, its
assets or business and there is no action, suit, proceeding or claim by any
Person pending, or to the best of Borrower's knowledge threatened, against any
Borrower or its assets or goodwill, or against or affecting any transactions
contemplated by this Agreement, which if adversely determined against a Borrower
would result in any material adverse change in the assets, business or prospects
of any Borrower or would impair the ability of any Borrower to perform its
obligations hereunder or under any of the other Financing Agreements to which it
is a party or of Lender to enforce any Obligations or realize upon any
Collateral.
8.7 Compliance with Other Agreements and Applicable Laws. After giving
effect to this Agreement and the application of the initial Loans hereunder
pursuant to the terms hereof, no Borrower is in default in any material respect
under, or in violation in any material respect of any of the terms of, any
agreement, contract, instrument, lease or other commitment to which it is a
party or by which it or any of its assets are bound and each Borrower is in
compliance in all material respects with all applicable provisions of laws,
rules, regulations, licenses, permits, approvals and orders of any foreign,
Federal, State or local governmental authority.
8.8 Bank Accounts. All of the deposit accounts, investment accounts or
other accounts in the name of or used by Borrowers maintained at any bank or
other financial institution are set forth on Schedule 8.8 hereto, subject to the
right of Borrowers to establish new accounts in accordance with Section 9.13
below.
8.9 Employee Benefits.
(a) No Borrower has engaged in any transaction in connection with which
such Borrower or any of its ERISA Affiliates could be subject to
either a civil penalty assessed pursuant to Section 502(i) of ERISA or
a tax imposed by Section 4975 of the Code, including any accumulated
funding deficiency described in Section 8.9(c) hereof and any
deficiency with respect to vested accrued benefits described in
Section 8.9(d) hereof.
(b) No liability to the Pension Benefit Guaranty Corporation has been or
is expected by any Borrower to be incurred with respect to any
employee pension benefit plan of either Borrower or any of its ERISA
Affiliates. There has been no reportable event (within the meaning of
Section 4043(c) of ERISA) or any other event or condition with respect
to any employee pension benefit plan of any Borrower or any of its
ERISA Affiliates which presents a risk of termination of any such plan
by the Pension Benefit Guaranty Corporation.
(c) Full payment has been made of all amounts which any Borrower or any of
its ERISA Affiliates is required under Section 302 of ERISA and
Section 412 of the Code to have paid under the terms of each employee
pension benefit plan as contributions to such plan as of the last day
of the most recent fiscal year of such plan ended prior to the date
hereof, and no accumulated funding deficiency (as defined in Section
302 of ERISA and Section 412 of the Code), whether or not waived,
exists with respect to any employee pension benefit plan, including
any penalty or tax described in Section 8.9(a) hereof and any
deficiency with respect to vested accrued benefits described in
Section 8.9(d) hereof.
(d) The current value of all vested accrued benefits under all employee
pension benefit plans maintained by any Borrower that are subject to
Title IV of ERISA does not exceed the current value of the assets of
such plans allocable to such vested accrued benefits, including any
penalty or tax described in Section 8.8(a) hereof and any accumulated
funding deficiency described in Section 8.8(c) hereof. The terms
"current value" and "accrued benefit" have the meanings specified in
ERISA.
(e) To the best of each Borrower's knowledge, none of the Borrowers nor
any of their ERISA Affiliates is or has ever been obligated to
contribute to any "multiemployer plan" (as such term is defined in
Section 400l(a)(3) of ERISA) that is subject to Title IV of ERISA,
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8.10 Environmental Compliance.
(a) Except as set forth on Schedule 8.10 hereto, no Borrower has
generated, used, stored, treated, transported, manufactured, handled,
produced or disposed of any Hazardous Materials, on or off its
premises (whether or not owned by it) in any manner which at any time
violates any applicable Environmental Law or any license, permit,
certificate, approval or similar authorization thereunder and the
operations of each Borrower complies in all material respects with all
Environmental Laws and all licenses, permits, certificates, approvals
and similar authorizations thereunder.
(b) Except as set forth on Schedule 8.10 hereto, there has been no
investigation, proceeding, complaint, order, directive, claim,
citation or notice by any governmental authority or any other person
nor is any pending or to the best of any Borrower's knowledge
threatened, with respect to any non-compliance with or violation of
the requirements of any Environmental Law by any Borrower or the
release, spill or discharge, threatened or actual, of any Hazardous
Material or the generation, use, storage, treatment, transportation,
manufacture, handling, production or disposal of any Hazardous
Materials or any other environmental, health or safety matter, which
affects any Borrower or its business, operations or assets or any
properties at which any Borrower has transported, stored or disposed
of any Hazardous Materials.
(c) No Borrower has any material liability (contingent or otherwise) in
connection with a release, spill or discharge, threatened or actual,
of any Hazardous Materials or the generation, use, storage, treatment,
transportation, manufacture, handling, production or disposal of any
Hazardous Materials.
(d) Each Borrower has all licenses, permits, certificates, approvals or
similar authorizations required to be obtained or filed in connection
with the operations of such Borrower under any Environmental Law and
all of such licenses, permits, certificates, approvals or similar
authorizations are valid and in full force and effect.
8.11 Accuracy and Completeness of Information. All information furnished
by or on behalf of each Borrower in writing to Lender in connection with this
Agreement or any of the other Financing Agreements or any transaction
contemplated hereby or thereby, including all information on the Information
Certificate is true and correct in all material respects on the date as of which
such information is dated or certified and does not omit any material fact
necessary in order to make such information not misleading. No event or
circumstance has occurred which has had or could reasonably be expected to have
a material adverse affect on the business, assets or prospects of any Borrower,
which has not been fully and accurately disclosed to Lender in writing.
8.12 Survival of Warranties; Cumulative. All representations and
warranties contained in this Agreement or any of the other Financing Agreements
shall survive the execution and delivery of this Agreement and shall be deemed
to have been made again to Lender on the date of each additional borrowing or
other credit accommodation hereunder and shall be conclusively presumed to have
been relied on by Lender regardless of any investigation made or information
possessed by Lender. The representations and warranties set forth herein shall
be cumulative and in addition to any other representations or warranties which
any Borrower shall now or hereafter give, or cause to be given, to Lender.
SECTION 9. AFFIRMATIVE AND NEGATIVE COVENANTS
9.1 Maintenance of Existence. Each Borrower shall at all times preserve,
renew and keep in full, force and effect its corporate existence and rights and
franchises with respect thereto and maintain in full force and effect all
permits, licenses, trademarks, tradenames, approvals, authorizations, leases and
contracts necessary to carry on the business as presently or proposed to be
conducted. Each Borrower shall give Lender thirty (30) days prior written notice
of any proposed change in its corporate name, which notice shall set forth the
new name and such Borrower shall deliver to Lender a copy of the amendment to
the Certificate of Incorporation of such Borrower providing for the name change
certified by the Secretary of State of the jurisdiction of incorporation of such
Borrower as soon as it is available.
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9.2 New Collateral Locations. Each Borrower may open any new location
within the continental United States provided such Borrower (a) gives Lender
thirty (30) days prior written notice of the intended opening of any such new
location and (b) executes and delivers, or causes to be executed and delivered,
to Lender such agreements, documents, and instruments as Lender may deem
reasonably necessary or desirable to protect its interests in the Collateral at
such location, including, without limitation, UCC financing statements.
9.3 Compliance with Laws, Regulations, Etc.
(a) Each Borrower shall, at all times, comply in all material respects
with all laws, rules, regulations, licenses, permits, approvals and
orders applicable to it and duly observe all requirements of any
Federal, State or local governmental authority, including, without
limitation, the Employee Retirement Security Act of 1974, as amended,
the Occupational Safety and Hazard Act of 1970, as amended, the Fair
Labor Standards Act of 1938, as amended, and all statutes, rules,
regulations, orders, permits and stipulations relating to
environmental pollution and employee health and safety, including,
without limitation, all of the Environmental Laws.
(b) Each Borrower shall insure its continued compliance with all
Environmental Laws in all of its operations, which system shall
include annual reviews of such compliance by employees or agents of
such Borrower who are familiar with the requirements of the
Environmental Laws. Copies of all environmental surveys, audits,
assessments, feasibility studies and results of remedial
investigations shall be promptly furnished, or caused to be furnished,
by each Borrower to Lender. Each Borrower shall take prompt and
appropriate action to respond to any non-compliance with any of the
Environmental Laws and shall regularly report to Lender on such
response.
(c) Each Borrower shall give both oral and written notice to Lender
immediately upon such Borrower's receipt of any notice of, or such
Borrower otherwise obtaining knowledge of, (i) the occurrence of any
event involving the release, spill or discharge, of any Hazardous
Material which could have a material adverse effect on the Borrower's
business or financial condition or (ii) any investigation, proceeding,
complaint, order, directive, claims, citation or notice with respect
to: (A) any non-compliance with or violation of any Environmental Law
by such Borrower or (B) the release, spill or discharge, threatened or
actual, of any Hazardous Material or (C) the generation, use, storage,
treatment, transportation, manufacture, handling, production or
disposal of any Hazardous Materials or (D) any other environmental,
health or safety matter, which affects such Borrower or its business,
operations or assets or any properties at which such Borrower
transported, stored or disposed of any Hazardous Materials.
(d) Without limiting the generality of the foregoing, whenever Lender
reasonably determines that there is non-compliance, or any condition
which requires any action by or on a Borrower in order to avoid any
material non-compliance, with any Environmental Law, such Borrower
shall, at Lender's request and such Borrower's expense: (i) cause an
independent environmental engineer acceptable to Lender to conduct
such tests of the site where such Borrower's non-compliance or alleged
non-compliance with such Environmental Laws has occurred as to such
non-compliance and prepare and deliver to Lender a report as to such
non-compliance setting forth the results of such tests, a proposed
plan for responding to any environmental problems described therein,
and an estimate of the costs thereof and (ii) provide to Lender a
supplemental report of such engineer whenever the scope of such
non-compliance, or such Borrower's response thereto or the estimated
costs thereof, shall change in any material respect.
(e) Each Borrower shall jointly and severally indemnify and hold harmless
Lender, its directors, officers, employees, agents, invitees,
representatives, successors and assigns, from and against any and all
losses, claims, damages, liabilities, costs, and expenses (including
attorneys' fees and legal expenses) directly or indirectly arising out
of or attributable to the use, generation, manufacture, reproduction,
storage, release, threatened release, spill, discharge, disposal or
presence of a Hazardous Material by or affecting any Borrower or any
of such Borrower's facilities, including, without limitation, the
costs of any required or necessary repair, cleanup or other remedial
work
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with respect to any property of any Borrower and the preparation and
implementation of any closure, remedial or other required plans. All
indemnifications in this Section 9.3 shall survive the payment of the
Obligations and the termination or non-renewal of this Agreement.
9.4 Payment of Taxes and Claims. Each Borrower shall duly pay and
discharge all taxes, assessments, contributions and governmental charges upon or
against it or its properties or assets, except for taxes the validity of which
are being contested in good faith by appropriate proceedings diligently pursued
and available to such Borrower and with respect to which adequate reserves have
been set aside on its books. Each Borrower shall be liable for any tax or
penalties imposed on Lender as a result of the financing arrangements provided
for herein and each Borrower agrees to indemnify and hold Lender harmless with
respect to the foregoing, and to repay to Lender on demand the amount thereof,
and until paid by such Borrower such amount shall be added and deemed part of
the Loans, provided, that, nothing contained herein shall be construed to
require any Borrower to pay any income or franchise taxes attributable to the
income of Lender from any amounts charged or paid hereunder to Lender. The
foregoing indemnity shall survive the payment of the Obligations and the
termination or non-renewal of this Agreement.
9.5 Insurance. Each Borrower shall, at all times, maintain with
financially sound and reputable insurers insurance with respect to the
Collateral against loss or damage and all other insurance of the kinds and in
the amounts customarily insured against or carried by corporations of
established reputation engaged in the same or similar businesses and similarly
situated. Such policies of insurance shall be satisfactory to Lender as to form,
amount and insurer. Each Borrower shall furnish certificates, policies or
endorsements to Lender as Lender shall require as proof of such insurance, and,
if a Borrower fails to do so, Lender is authorized, but not required, to obtain
such insurance at the expense of such Borrower. All policies shall provide for
at least thirty (30) days prior written notice to Lender of any cancellation or
reduction of coverage and that Lender may act as attorney for each Borrower in
obtaining, and at any time an Event of Default exists or has occurred and is
continuing, adjusting, settling, amending and canceling such insurance. Each
Borrower shall cause Lender to be named as a loss payee and an additional
insured (but without any liability for any premiums) under such insurance
policies and each Borrower shall obtain non-contributory lender's loss payable
endorsements to all insurance policies in form and substance reasonably
satisfactory to Lender. Such lender's loss payable endorsements shall specify
that the proceeds of such insurance shall be payable to Lender as its interests
may appear and further specify that Lender shall be paid regardless of any act
or omission by a Borrower or any of its affiliates. At its option, Lender may
apply any insurance proceeds received by Lender at any time to the cost of
repairs or replacement of Collateral and/or to payment of the Obligations, in
any order and in such manner as Lender may determine or hold such proceeds as
cash collateral for the Obligations.
9.6 Financial Statements and Other Information.
(a) Each Borrower shall keep proper books and records in which true and
complete entries shall be made of all dealings or transactions of or
in relation to the Collateral and the business of each Borrower and
its subsidiaries (if any, other than the Canadian Subsidiary) in
accordance with GAAP, and each Borrower shall furnish or cause to be
furnished to Lender: (i) within thirty (30) days after the end of each
fiscal month, monthly unaudited combined and combining financial
statements for Borrowers and, upon Lender's request, monthly unaudited
financial statements of the Canadian Subsidiary (including in each
case balance sheets, statements of income and loss, statements of cash
flow and statements of shareholders' equity), all in reasonable
detail, fairly presenting the financial position and the results of
the operations of Borrowers and any subsidiaries (other than the
Canadian Subsidiary, except with respect to the financial statements
of the Canadian Subsidiary delivered pursuant hereto) as of the end of
and through such fiscal month (subject to year end adjustments) and
(ii) within ninety (90) days after the end of each fiscal year,
unaudited combining financial statements, audited combined financial
statements, and audited consolidated financial statements for
Borrowers and, if any Borrower has any subsidiaries (other than the
Canadian Subsidiary), audited financial statements for such Borrower
and its subsidiaries, and audited financial statements of the Canadian
Subsidiary (including in each case balance sheets, statements of
income and loss, statements of cash flow and statements of
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equity), and the accompanying notes thereto, all in reasonable detail,
fairly presenting the financial position and the results of the
operations of Borrowers and any subsidiaries as of the end of and for
such fiscal year, together with the opinion of independent certified
public accountants, which accountants shall be a nationally recognized
independent accounting firm selected by Borrowers, that such financial
statements have been prepared in accordance with GAAP, and present
fairly the results of operations and financial condition of Borrowers
and their subsidiaries as of the end of and for the fiscal year then
ended.
(b) Each Borrower shall promptly notify Lender in writing of the details
of (i) any loss, damage, investigation, action, suit, proceeding or
claim relating to the Collateral or any other property which is
security for the Obligations or which would result in any material
adverse change in such Borrower's business, properties, assets,
goodwill or condition, financial or otherwise and (ii) the occurrence
of any Event of Default or event which, with the passage of time or
giving of notice or both, would constitute an Event of Default.
(c) Each Borrower shall promptly after the sending or filing thereof
furnish or cause to be furnished to Lender copies of all reports which
such Borrower sends to its stockholders generally and copies of all
reports and registration statements which such Borrower files with the
Securities and Exchange Commission, any national securities exchange
or the National Association of Securities Dealers, Inc.
(d) Each Borrower shall furnish or cause to be furnished to Lender such
budgets, forecasts, projections and other information respecting the
Collateral and the business of such Borrower, as Lender may, from time
to time, reasonably request, and all work papers, reports, management
letters and any other documents prepared by each Borrower's
accountants or auditors and delivered to Borrowers, as Lender may,
from time to time, reasonably request. Lender is hereby authorized to
deliver a copy of any financial statement or any other information
relating to the business of any Borrower to any court or other
government agency or to any participant or assignee or prospective
participant or assignee. Any documents, schedules, invoices or other
papers delivered to Lender may be destroyed or otherwise disposed of
by Lender one (1) year after the same are delivered to Lender, except
as otherwise designated by a Borrower to Lender in writing.
9.7 Sale of Assets, Consolidation, Merger, Dissolution, Etc. No Borrower
shall directly or indirectly, (a) merge into or with or consolidate with any
other Person or permit any other Person to merge into or with or consolidate
with it, or (b) sell, assign, lease, transfer, abandon or otherwise dispose of
any stock or indebtedness to any other Person or any of its assets to any other
Person (except for (i) sales of Inventory in the ordinary course of business and
(ii) the disposition of worn out or obsolete Equipment or Equipment no longer
used in the business of such Borrower so long as (A) if an Event of Default
exists or has occurred and is continuing, any proceeds are paid to Lender and
(B) such sales do not include Equipment having an aggregate fair market value in
excess of $50,000 for all such Equipment disposed of in any fiscal year of such
Borrower) or (c) form or acquire any subsidiaries, or (d) wind up, liquidate or
dissolve or (e) agree to do any of the foregoing.
9.8 Encumbrances. No Borrower shall create, incur, assume or suffer to
exist any security interest, mortgage, pledge, lien, charge or other encumbrance
of any nature whatsoever on any of its assets or properties, including the
Collateral, except (a) liens and security interests of Lender; (b) liens
securing the payment of taxes, either not yet overdue or the validity of which
are being contested in good faith by appropriate proceedings diligently pursued
and available to the applicable Borrower and with respect to which adequate
reserves have been set aside on its books; (c) non-consensual statutory liens
(other than liens securing the payment of taxes past due) arising in the
ordinary course of a Borrower's business to the extent: (i) such liens secure
indebtedness which is not overdue or (ii) such liens secure indebtedness
relating to claims or liabilities which are fully insured and being defended at
the sole cost and expense and at the sole risk of the insurer or being contested
in good faith by appropriate proceedings diligently pursued and available to the
applicable Borrower, in each case prior to the commencement of foreclosure or
other similar proceedings and with respect to which adequate reserves have been
set aside on its books; (d) zoning restrictions,
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easements, licenses, covenants and other restrictions affecting the use of real
property which do not interfere in any material respect with the use of such
real property or ordinary conduct of the business of any Borrower as presently
conducted thereon or materially impair the value of the real property which may
be subject thereto; (e) purchase money security interests in Equipment
(including capital leases) not to exceed $200,000 in the aggregate at any time
outstanding so long as such security interests do not apply to any property of
any Borrower other than the Equipment so acquired, and the indebtedness secured
thereby does not exceed the cost of the Equipment so acquired, as the case may
be; and (f) the security interests and liens set forth on Schedule 8.4 hereto.
9.9 Indebtedness. No Borrower shall incur, create, assume, become or be
liable in any manner with respect to, or permit to exist, any obligations or
indebtedness, except:
(a) the Obligations;
(b) trade obligations and normal accruals in the ordinary course of
business not yet due and payable, or with respect to which the
applicable Borrower is contesting in good faith the amount or validity
thereof by appropriate proceedings diligently pursued and available to
such Borrower, and with respect to which adequate reserves have been
set aside on its books;
(c) purchase money indebtedness (including capital leases) to the extent
not incurred or secured by liens (including capital leases) in
violation of any other provision of this Agreement;
(d) indebtedness of Xxxxx to New Jersey Economic Development Authority
("NJEDA") pursuant to the Loan Agreement dated as of December 1, 1993
in the aggregate original principal amount of $5,800,000, provided,
that: (i) such Borrower shall not, directly or indirectly, make any
payments in respect of such indebtedness, including but not limited to
any prepayments or other non-mandatory payments, except such Borrower
may make regularly scheduled payments of interest and payments of
principal in accordance with the terms of such agreement or instrument
as in effect on the date hereof, (ii) such Borrower shall not,
directly or indirectly, (A) amend, modify, alter or change any terms
of such indebtedness or any agreement, document or instrument related
thereto, or (B) redeem, retire, defease, purchase or otherwise acquire
such indebtedness, or set aside or otherwise deposit or invest any
sums for such purpose, and (iii) such Borrower shall furnish to Lender
all notices, demands or other materials concerning such indebtedness
either received by such Borrower or on its behalf, promptly after
receipt thereof, or sent by such Borrower or on its behalf,
concurrently with the sending thereof, as the case may be;
(e) indebtedness set forth on the Schedule 9.9 hereto; provided, that, (i)
the applicable Borrower may only make regularly scheduled payments of
principal and interest in respect of such indebtedness in accordance
with the terms of the agreement or instrument evidencing or giving
rise to such indebtedness as in effect on the date hereof, (ii) the
applicable Borrower shall not directly or indirectly, (A) amend,
modify, alter or change the terms of such indebtedness or any
agreement, document or instrument related thereto as in effect on the
date hereof, or (B) redeem, retire, defease, purchase or otherwise
acquire such indebtedness, or set aside or otherwise deposit or invest
any sums for such purpose, and (iii) the applicable Borrower shall
furnish to Lender all notices or demands connection with such
indebtedness either received by such Borrower or on its behalf,
promptly after the receipt thereof, or sent by such Borrower or on its
behalf, concurrently with the sending thereof, as the case may be.
9.10 Loans, Investments, Guarantees, Etc. No Borrower shall directly or
indirectly, make any loans or advance money or property to any person, or invest
in (by capital contribution, dividend or otherwise) or purchase or repurchase
the stock or indebtedness or all or a substantial part of the assets or property
of any person, or guarantee, assume, endorse, or otherwise become responsible
for (directly or indirectly) the indebtedness, performance, obligations or
dividends of any Person or agree to do any of the foregoing, except: (a) the
endorsement of instruments for collection or deposit in the ordinary course of
business; (b) investments in: (i) direct obligations of the United States
Government, (ii) negotiable certificates of deposit issued by any bank
satisfactory to Lender, payable to the order of such Borrower or to bearer and
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delivered to Lender, and (iii) commercial paper rated A1 or P1; provided, that,
as to any of the foregoing, unless waived in writing by Lender, the applicable
Borrower shall take such actions as are deemed necessary by Lender to perfect
the security interest of Lender in such investments and (c) the loans, advances
and guarantees set forth on Schedule 9.10 hereto; provided, that, as to such
loans, advances and guarantees (i) the applicable Borrower shall not directly or
indirectly, (A) amend, modify, alter or change the terms of such loans, advances
or guarantees or any agreement, document or instrument related thereto, or (B)
as to such guarantees, redeem, retire, defease, purchase or otherwise acquire
the obligations arising pursuant to such guarantees, or set aside or otherwise
deposit or invest any sums for such purpose, and (ii) the applicable Borrower
shall furnish to Lender all notices or demands connection with such indebtedness
either received by such Borrower or on its behalf, promptly after the receipt
thereof, or sent by such Borrower or on its behalf, concurrently with the
sending thereof, as the case may be.
9.11 Dividends and Redemptions. No Borrower shall, directly or indirectly,
declare or pay any dividends on account of any shares of class of capital stock
of such Borrower now or hereafter outstanding, or set aside or otherwise deposit
or invest any sums for such purpose, or redeem, retire, defease, purchase or
otherwise acquire any shares of any class of capital stock (or set aside or
otherwise deposit or invest any sums for such purpose) for any consideration
other than common stock or apply or set apart any sum, or make any other
distribution (by reduction of capital or otherwise) in respect of any such
shares or agree to do any of the foregoing.
9.12 Transactions with Affiliates. No Borrower shall directly or
indirectly, (a) purchase, acquire or lease any property from or sell, transfer
or lease any property to, any officer, director, agent or other person
affiliated with any Borrower, except in the ordinary course of and pursuant to
the reasonable requirements of such Borrower's business and upon fair and
reasonable terms no less favorable to such Borrower than such Borrower would
obtain in a comparable arm's length transaction with an unaffiliated person or
(b) make any payments of management, consulting or other fees for management or
similar services, or of any indebtedness owing to any officer, employee,
shareholder, director or other person affiliated with Borrower or the other
Borrowers except (i) reasonable compensation to officers, employees and
directors for services rendered to Borrowers in the ordinary course of business
and (ii) the repayment by Xxxxx to the Canadian Subsidiary of $550,000,
provided, that, the Canadian Subsidiary pays certain costs and expenses of Xxxxx
owed to unaffiliated third parties in the aggregate amount of $550,000.
9.13 Additional Bank Accounts. Each Borrower shall not, directly or
indirectly, open, establish or maintain any deposit account, investment account
or any other account with any bank or other financial institution, other than
the Blocked Accounts and the accounts set forth in Schedule 8.8 hereto, except;
(a) as to any new or additional Blocked Accounts and other such new or
additional accounts which contain any Collateral or proceeds thereof, with the
prior written consent of Lender and subject to so such conditions thereto as
Lender may establish and (b) as to any accounts used by Borrowers to make
payments of payroll, taxes or other obligations to third parties, after prior
written notice to Lender.
9.14 Compliance with ERISA. No Borrower shall with respect to any
"employee pension benefit plans" maintained by either Borrower or any of its
ERISA Affiliates:
(a) (i) terminate any of such employee pension benefit plans so as to
incur any liability to the Pension Benefit Guaranty Corporation
established pursuant to ERISA, (ii) allow or suffer to exist any
prohibited transaction involving any of such employee pension benefit
plans or any trust created thereunder which would subject either
Borrower or any such ERISA Affiliate to a tax or penalty or other
liability on prohibited transactions imposed under Section 4975 of the
Code or ERISA, (iii) fail to pay to any such employee pension benefit
plan any contribution which it is obligated to pay under Section 302 of
ERISA, Section 412 of the Code or the terms of such plan, (iv) allow or
suffer to exist any accumulated funding deficiency, whether or not
waived, with respect to any such employee pension benefit plan, (v)
allow or suffer to exist any occurrence of a reportable event or any
other event or condition which presents a material risk of termination
by the Pension Benefit Guaranty Corporation of any such employee pension
benefit plan that is a single employer plan,
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which termination could result in any liability to the Pension Benefit
Guaranty Corporation or (vi) incur any withdrawal liability with
respect to any multiemployer pension plan.
(b) As used in this Section 9.13, the term "employee pension benefit
plans," "employee benefit plans", "accumulated funding deficiency" and
"reportable event" shall have the respective meanings assigned to them
in ERISA, and the term "prohibited transaction" shall have the meaning
assigned to it in Section 4975 of the Code and ERISA.
9.15 Adjusted Net Worth. Borrowers shall, at all times, maintain Adjusted
Net Worth of not less than $9,000,000.
9.16 Costs and Expenses. Each Borrower shall jointly and severally pay to
Lender on demand all costs, expenses, filing fees and taxes paid or payable in
connection with the preparation, negotiation, execution, delivery, recording,
administration, collection, liquidation, enforcement and defense of the
Obligations, Lender's rights in the Collateral, this Agreement, the other
Financing Agreements and all other documents related hereto or thereto,
including any amendments, supplements or consents which may hereafter be
contemplated (whether or not executed) or entered into in respect hereof and
thereof, including: (a) all costs and expenses of filing or recording (including
Uniform Commercial Code financing statement filing taxes and fees, documentary
taxes, intangibles taxes and mortgage recording taxes and fees, if applicable);
(b) costs and expenses and fees for insurance premiums, environmental audits,
surveys, assessments, engineering reports and inspections, appraisal fees and
search fees; (c) costs and expenses of remitting loan proceeds, collecting
checks and other items of payment, and establishing and maintaining the Blocked
Accounts, together with Lender's customary charges and fees with respect
thereto; (d) charges, fees or expenses charged by any bank or issuer in
connection with the Letter of Credit Accommodations; (e) costs and expenses of
preserving and protecting the Collateral; (f) costs and expenses paid or
incurred in connection with obtaining payment of the Obligations, enforcing the
security interests and liens of Lender, selling or otherwise realizing upon the
Collateral, and otherwise enforcing the provisions of this Agreement and the
other Financing Agreements or defending any claims made or threatened against
Lender arising out of the transactions contemplated hereby and thereby
(including preparations for and consultations concerning any such matters); (g)
all out-of-pocket expenses and costs heretofore and from time to time hereafter
reasonably incurred by Lender during the course of periodic field examinations
of the Collateral and Borrowers' operations, plus a per diem charge at the rate
of $600 per person per day for Lender's examiners in the field and office, and
(h) the reasonable fees and disbursements of counsel (including legal
assistants) to Lender in connection with any of the foregoing.
9.17 Further Assurances. At the request of Lender at any time and from
time to time, each Borrower shall, at its expense, duly execute and deliver, or
cause to be duly executed and delivered, such further agreements, documents and
instruments, and do or cause to be done such further acts as may be necessary or
proper to evidence, perfect, maintain and enforce the security interests and the
priority thereof in the Collateral and to otherwise effectuate the provisions or
purposes of this Agreement or any of the other Financing Agreements. Lender may
at any time and from time to time request a certificate from an officer of each
Borrower representing that all conditions precedent to the making of Loans and
providing Letter of Credit Accommodations contained herein are satisfied. In the
event of such request by Lender, Lender may, at its option, cease to make any
further Loans or provide any further Letter of Credit Accommodations until
Lender has received such certificate and, in addition, Lender has determined
that such conditions are satisfied. Where permitted by law, each Borrower hereby
authorizes Lender to execute and file one or more UCC financing statements
signed only by Lender.
SECTION 10. EVENTS OF DEFAULT AND REMEDIES
10.1 Events of Default. The occurrence or existence of any one or more of
the following events are referred to herein individually as an "Event of
Default", and collectively as "Events of Default":
(a) (i) any Borrower fails to pay when due any of the Obligations or (ii)
any Borrower or any Obligor fails to perform any of the terms,
covenants, conditions or provisions contained in this Agreement or any
of the other Financing Agreements other than as described in Section
10.1(a)(i) and such failure shall continue for twenty (20) days;
provided,that, such twenty (20) day period shall not
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apply in the case of: (A) any failure to observe any such term,
covenant, condition or provision which is not capable of being cured
at all or within such twenty (20) day period or which has been the
subject of a prior failure within a six (6) month period or (B) an
intentional breach by any Borrower or any Obligor of any such term,
covenant, condition or provision, or (C) the failure to observe or
perform any of the covenants or provisions contained in Sections 6.3,
9.1, 9.5, 9.6(a), 9.7, 9.8, 9.9, 9.10, 9.11, 9.12 or 9.15 of this
Agreement or any covenants or agreements covering substantially the
same matter as such sections in any of the other Financing Agreements;
or
(b) any representation, warranty or statement of fact made by any Borrower
to Lender in this Agreement, the other Financing Agreements or any
other agreement, schedule, confirmatory assignment or otherwise shall
when made or deemed made be false or misleading in any material
respect;
(c) any Obligor revokes, terminates or fails to perform any of the terms,
covenants. conditions or provisions of any guarantee, endorsement or
other agreement of such party in favor of Lender;
(d) any judgment for the payment of money is rendered against any Borrower
or any Obligor in excess of $100,000 in any one case or in excess of
$200,000 in the aggregate and shall remain undischarged or unvacated
for a period in excess of thirty (30) days or execution shall at any
time not be effectively stayed, or any judgment other than for the
payment of money, or injunction, attachment, garnishment or execution
is rendered against any Borrower or any Obligor or any of their assets
which could reasonably be expected to have a material adverse effect
on any Borrower;
(e) any Obligor (being a natural person or a general partner of an Obligor
which is a partnership) dies or any Borrower or any Obligor, which is
a partnership, corporation or other legal entity, dissolves or
suspends or discontinues doing business;
(f) any Borrower or any Obligor becomes insolvent (however defined or
evidenced), makes an assignment for the benefit of creditors, makes or
sends notice of a bulk transfer or calls a meeting of its creditors or
principal creditors;
(g) a case or proceeding under the bankruptcy laws of the United States of
America now or hereafter in effect or under any insolvency,
reorganization, receivership, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction now or hereafter in
effect (whether at law or in equity) is filed against any Borrower or
any Obligor or all or any part of its properties and such petition or
application is not dismissed within thirty (30) days after the date of
its filing or any Borrower or any Obligor shall file any answer
admitting or not contesting such petition or application or indicates
its consent to, acquiescence in or approval of, any such action or
proceeding or the relief requested is granted sooner;
(h) a case or proceeding under the bankruptcy laws of the United States of
America now or hereafter in effect or under any insolvency,
reorganization, receivership, readjustment of debt, dissolution or
liquidation law or statute of any jurisdiction now or hereafter in
effect (whether at a law or equity) is filed by any Borrower or any
Obligor or for all or any part of its property;
(i) any default by any Borrower or any Obligor under any agreement,
document or instrument relating to any indebtedness for borrowed money
owing to any person other than Lender, or any capitalized lease
obligations, contingent indebtedness in connection with any guarantee,
letter of credit, indemnity or similar type of instrument in favor of
any person other than Lender, in any case in an amount in excess of
$150,000 which default continues for more than the applicable cure
period, if any, with respect thereto, or any default by any Borrower
or any Obligor under any material contract, lease, license or other
obligation to any person other than Lender, which default continues
for more than the applicable cure period, if any, with respect
thereto;
(j) the indictment or threatened indictment which may reasonably be
expected to result in an indictment of Borrower or any Obligor under
any criminal statute, or commencement or threatened commencement of
criminal or civil proceedings against any Borrower or any Obligor,
pursuant to
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which statute or proceedings the penalties or remedies sought or
available include forfeiture of any of the material property of any
Borrower or such Obligor;
(k) there shall be a material adverse change in the business, assets or
financial condition of any Borrower or any Obligor after the date
hereof; or
(l) there shall be an event of default under any of the other Financing
Agreements.
10.2 Remedies.
(a) At any time an Event of Default exists or has occurred and is
continuing, Lender shall have all rights and remedies provided in this
Agreement, the other Financing Agreements, the Uniform Commercial Code
and other applicable law, all of which rights and remedies may be
exercised without notice to or consent by any Borrower or any Obligor,
except as such notice or consent is expressly provided for hereunder
or required by applicable law. All rights, remedies and powers granted
to Lender hereunder, under any of the other Financing Agreements, the
Uniform Commercial Code or other applicable law, are cumulative, not
exclusive and enforceable, in Lender's discretion, alternatively,
successively, or concurrently on any one or more occasions, and shall
include, without limitation, the right to apply to a court of equity
for an injunction to restrain a breach or threatened breach by any
Borrower of this Agreement or any of the other Financing Agreements.
Lender may, at any time or times, proceed directly against any
Borrower or any Obligor to collect the Obligations without prior
recourse to the Collateral.
(b) Without limiting the foregoing, at any time an Event of Default exists
or has occurred and is continuing, Lender may, in its discretion and
without limitation, (i) accelerate the payment of all Obligations and
demand immediate payment thereof to Lender (provided, that, upon the
occurrence of any Event of Default described in Sections 10.1(g) and
10.1(h), all Obligations shall automatically become immediately due
and payable), (ii) with or without judicial process or the aid or
assistance of others, enter upon any premises on or in which any of
the Collateral may be located and take possession of the Collateral or
complete processing, manufacturing and repair of all or any portion of
the Collateral, (iii) require either or each Borrower, at such
Borrower's expense, to assemble and make available to Lender any part
or all of the Collateral at any place and time designated by Lender,
(iv) collect, foreclose, receive, appropriate, setoff and realize upon
any and all Collateral, (v) remove any or all of the Collateral from
any premises on or in which the same may be located for the purpose of
effecting the sale, foreclosure or other disposition thereof or for
any other purpose, (vi) sell, lease, transfer, assign, deliver or
otherwise dispose of any and all Collateral (including entering into
contracts with respect thereto, public or private sales at any
exchange, broker's board, at any office of Lender or elsewhere) at
such prices or terms as Lender may deem reasonable, for cash, upon
credit or for future delivery, with the Lender having the right to
purchase the whole or any part of the Collateral at any such public
sale, all of the foregoing being free from any right or equity of
redemption of any Borrower, which right or equity of redemption is
hereby expressly waived and released by each Borrower and/or (vii)
terminate this Agreement. If any of the Collateral is sold or leased
by Lender upon credit terms or for future delivery, the Obligations
shall not be reduced as a result thereof until payment therefor is
finally collected by Lender. If notice of disposition of Collateral is
required by law, five (5) days prior notice by Lender to the
applicable Borrower designating the time and place of any public sale
or the time after which any private sale or other intended disposition
of Collateral is to be made, shall be deemed to be reasonable notice
thereof and each Borrower waives any other notice. In the event Lender
institutes an action to recover any Collateral or seeks recovery of
any Collateral by way of prejudgment remedy, each Borrower waives the
posting of any bond which might otherwise be required.
(c) Lender may apply the cash proceeds of Collateral actually received by
Lender from any sale, lease, foreclosure or other disposition of the
Collateral to payment of the Obligations, in whole or in part and in
such order as Lender may elect, whether or not then due. Each Borrower
shall remain liable to Lender for the payment of any deficiency with
interest at the highest rate provided for herein and
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all costs and expenses of collection or enforcement, including
reasonable attorneys' fees and legal expenses.
(d) Without limiting the foregoing, upon the occurrence of an Event of
Default or an event which with notice or passage of time or both would
constitute an Event of Default, Lender may, at its option, without
notice, (i) cease making Loans or arranging for Letter of Credit
Accommodations or reduce the lending formulas or amounts of Revolving
Loans and Letter of Credit Accommodations available to either or each
Borrower and/or (ii) terminate any provision of this Agreement
providing for any future Loans or Letter of Credit Accommodations to
be made by Lender to either or each Borrower.
10.3 Certain Limitations. Lender hereby acknowledges and agrees that (a)
as a result of this Agreement or any of the other Financing Agreements, the
Lender does not have a lien upon or security interest in any shares of the
capital stock or other equity securities of the Canadian Subsidiary owned by
Xxxxx or any of the assets of the Canadian Subsidiary and (b) that the Canadian
Subsidiary has not guaranteed or otherwise agreed to be liable for the
Obligations.
SECTION 11. JURY TRIAL WAIVER; OTHER WAIVERS AND CONSENTS; GOVERNING LAW
11.1 Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) The validity, interpretation and enforcement of this Agreement and the
other Financing Agreements and any dispute arising out of the
relationship between the parties hereto, whether in contract, tort,
equity or otherwise, shall be governed by the internal laws of the
State of New York (without giving effect to principles of conflicts of
law).
(b) Borrower and Lender irrevocably consent and submit to the
non-exclusive jurisdiction of the Supreme Court of the State of New
York for New York County and the United States District Court for the
Southern District of New York and waive any objection based on venue
or forum non conveniens with respect to any action instituted therein
arising under this Agreement or any of the other Financing Agreements
or in any way connected with or related or incidental to the dealings
of the parties hereto in respect of this Agreement or any of the other
Financing Agreements or the transactions related hereto or thereto, in
each case whether now existing or hereafter arising, and whether in
contract, tort, equity or otherwise, and agree that any dispute with
respect to any such matters shall be heard only in the courts
described above (except that Lender shall have the right to bring any
action or proceeding against any Borrower or its property in the
courts of any other jurisdiction which Lender deems necessary or
appropriate in order to realize on the Collateral or to otherwise
enforce its rights against such Borrower or its property).
(c) Each Borrower hereby waives personal service of any and all process
upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set
forth on the signature pages hereof and service so made shall be
deemed to be completed five (5) days after the same shall have been so
deposited in the U.S. mails, or, at Lender's option, by service upon
such Borrower in any other manner provided under the rules of any such
courts. Within thirty (30) days after such service, such Borrower
shall appear in answer to such process, failing which such Borrower
shall be deemed in default and judgment may be entered by Lender
against such Borrower for the amount of the claim and other relief
requested.
(d) EACH BORROWER AND LENDER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF
ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS
AGREEMENT OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE OTHER FINANCING
AGREEMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE.
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36
EACH BORROWER AND LENDER HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT BORROWER OR LENDER MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
(e) Lender shall not have any liability to any Borrower (whether in tort,
contract, equity or otherwise) for losses suffered by any Borrower in
connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Agreement, or any
act, omission or event occurring in connection herewith, unless it is
determined by a final and non-appealable judgment or court order
binding on Lender, that the losses were the result of acts or
omissions constituting gross negligence or willful misconduct. In any
such litigation, Lender shall be entitled to the benefit of the
rebuttable presumption that it acted in good faith and with the
exercise of ordinary care in the performance by it of the terms of
this Agreement.
11.2 Waiver of Notices. Each Borrower hereby expressly waives demand,
presentment, protest and notice of protest and notice of dishonor with respect
to any and all instruments and commercial paper, included in or evidencing any
of the Obligations or the Collateral, and any and all other demands and notices
of any kind or nature whatsoever with respect to the Obligations, the Collateral
and this Agreement, except such as are expressly provided for herein. No notice
to or demand on any Borrower which Lender may elect to give shall entitle any
Borrower to any other or further notice or demand in the same, similar or other
circumstances.
11.3 Amendments and Waivers. Neither this Agreement nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Lender, and as to amendments, as also signed by an authorized officer of each
Borrower. Lender shall not, by any act, delay, omission or otherwise be deemed
to have expressly or impliedly waived any of its rights, powers and/or remedies
unless such waiver shall be in writing and signed by an authorized officer of
Lender. Any such waiver shall be enforceable only to the extent specifically set
forth therein. A waiver by Lender of any right, power and/or remedy on any one
occasion shall not be construed as a bar to or waiver of any such right, power
and/or remedy which Lender would otherwise have on any future occasion, whether
similar in kind or otherwise.
11.4 Waiver of Counterclaims. Each Borrower waives all rights to interpose
any claims, deductions, setoffs or counterclaims of any nature (other then
compulsory counterclaims) in any action or proceeding with respect to this
Agreement, the Obligations, the Collateral or any matter arising therefrom or
relating hereto or thereto.
11.5 Indemnification. Each Borrower shall jointly and severally indemnify
and hold Lender, and its directors, agents, employees and counsel, harmless from
and against any and all losses, claims, damages, liabilities, costs or expenses
imposed on, incurred by or asserted against any of them in connection with any
litigation, investigation, claim or proceeding commenced or threatened related
to the negotiation, preparation, execution, delivery, enforcement, performance
or administration of this Agreement, any other Financing Agreements, or any
undertaking or proceeding related to any of the transactions contemplated hereby
or any act, omission, event or transaction related or attendant thereto,
including amounts paid in settlement, court costs, and the fees and expenses of
counsel. To the extent that the undertaking to indemnify, pay and hold harmless
set forth in this Section may be unenforceable because it violates any law or
public policy, each Borrower shall pay the maximum portion which it is permitted
to pay under applicable law to Lender in satisfaction of indemnified matters
under this Section. The foregoing indemnity shall survive the payment of the
Obligations and the termination or non-renewal of this Agreement.
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SECTION 12. TERM OF AGREEMENT; MISCELLANEOUS
12.1 Term.
(a) This Agreement and the other Financing Agreements shall become
effective as of the date set forth on the first page hereof and shall
continue in full force and effect for a term ending on the date three
(3) years from the date hereof (the "Renewal Date"), and from year to
year thereafter, unless sooner terminated pursuant to the terms
hereof; provided, that, Lender and Borrowers may, at their mutual
options, extend the Renewal Date to the date four (4) years from the
date hereof by giving each other notice at least sixty (60) days prior
to the third anniversary of this Agreement. Lender may terminate this
Agreement and the other Financing Agreements effective on the Renewal
Date or on the anniversary of the Renewal Date in any year by giving
to the other party at least sixty (60) days prior written notice;
provided, that, this Agreement and all other Financing Agreements must
be terminated simultaneously as to all Borrowers. Borrowers may
(subject to Lender's right to extend the Renewal Date as provided
above) terminate this Agreement and the other Financing Agreements at
any time (subject to subsection (c) below) upon twenty (20) business
days' written notice to Lender; provided, that, this Agreement and all
other Financing Agreements must be terminated simultaneously as to all
Borrowers. Upon the effective date of termination or non-renewal of
the Financing Agreements, Borrowers shall jointly and severally pay to
Lender, in full, all outstanding and unpaid Obligations and shall
furnish cash collateral to Lender in such amounts as Lender determines
are reasonably necessary to secure Lender from loss, cost, damage or
expense, including reasonable attorneys' fees and legal expenses, in
connection with any contingent Obligations, including issued and
outstanding Letter of Credit Accommodations and checks or other
payments provisionally credited to the Obligations and/or as to which
Lender has not yet received final and indefeasible payment. Such
payments in respect of the Obligations and cash collateral shall be
remitted by wire transfer in Federal funds to such bank account of
Lender, as Lender may, in its discretion, designate in writing to
Borrowers for such purpose. Interest shall be due until and including
the next business day, if the amounts so paid by Borrowers to the bank
account designated by Lender are received in such bank account later
than 12:00 noon, New York time.
(b) No termination of this Agreement or the other Financing Agreements
shall relieve or discharge any Borrower of its respective duties,
obligations and covenants under this Agreement or the other Financing
Agreements until all Obligations have been fully and finally
discharged and paid, and Lender's continuing security interest in the
Collateral and the rights and remedies of Lender hereunder, under the
other Financing Agreements and applicable law, shall remain in effect
until all such Obligations have been fully and finally discharged and
paid.
(c) If for any reason this Agreement is terminated prior to the end of the
then current term or renewal term of this Agreement, in view of the
impracticality and extreme difficulty of ascertaining actual damages
and by mutual agreement of the parties as to a reasonable calculation
of Lender's lost profits as a result thereof, Borrowers agree to pay
to Lender, upon the effective date of such termination, an early
termination fee in the amount set forth below if such termination is
effective in the period indicated:
AMOUNT PERIOD
------ ------
(i) 1.5% of Maximum Credit From the date hereof to and
including November 17, 1998
(ii) 1% of Maximum Credit November 18, 1998 to and including
November 17, 1999
(iii) .5% of Maximum Credit November 18, 1999 to and including
November 17, 2000 or if the term of
this Agreement is extended for an
additional year as provided above,
then to and including November 17, 2001.
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Such early termination fee shall be presumed to be the amount of
damages sustained by Lender as a result of such early termination and
each Borrower agrees that it is reasonable under the circumstances
currently existing. The early termination fee provided for in this
Section 12.1 shall be deemed included in the Obligations.
(d) Notwithstanding anything to the contrary set forth in Section 12.1(c)
above, in the event that Borrowers terminate this Agreement and the
other Financing Agreements prior to the Renewal Date concurrently with
the consummation of a Qualified Business Sale (as hereafter defined),
the early termination fee payable by Borrower to Lender shall be
reduced to an amount equal to fifty (50%) percent of the early
termination fee otherwise payable pursuant to Section 12.1(c) upon the
effective date of such termination (the "Reduced Termination Fee")
provided that each of the following conditions is satisfied on such
termination date: (i) Lender shall have received not less than thirty
(30) days prior written notice of the intention of Borrowers to so
terminate this Agreement and the other Financing Agreements, which
notice sets forth the intended termination date (the "Termination
Notice"), (ii) no Event of Default or condition or event which, with
notice or the passage of time, or both, shall exist or have occurred
and be continuing on either the date Lender receives the Termination
Notice or on such termination date, and (iii) on such termination date
Lender receives full and final repayment of all outstanding
Obligations, cash collateral for all outstanding contingent
Obligations, each as provided in Section 12.1(a), and payment of the
Reduced Termination Fee from the proceeds of a Qualified Business
Sale.
(e) As used herein, the term "Qualified Business Sale" shall mean a bona
fide sale of Xxxxx'x common stock to the public pursuant to an
effective registration statement under the Securities Act of 1933, as
amended, or a sale by Xxxxx of substantially all of its assets (other
than in the normal course of business), in which the net cash proceeds
received by Xxxxx therefrom (after deducting all fees, costs and
expenses related thereto) are not less than the amounts required to be
paid by Borrower to Lender pursuant to clause (iii) of Section 12.1(d)
upon termination of the Financing Agreements.
12.2 Notices. All notices, requests and demands hereunder shall be in
writing and (a) made to Lender at its address set forth below and to Xxxxx, on
behalf of each Borrower at its chief executive office set forth below, or to
such other address as either party may designate by written notice to the other
in accordance with this provision, and (b) deemed to have been given or made: if
delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, one (l) business day after sending; and if by
certified mail, return receipt requested, five (5) days after mailing.
12.3 Partial Invalidity. If any provision of this Agreement is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Agreement as a whole, but this Agreement shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
12.4 Successors. This Agreement, the other Financing Agreements and any
other document referred to herein or therein shall be binding upon and inure to
the benefit of and be enforceable by Lender, each Borrower and their respective
successors and assigns, except that no Borrower may assign its rights under this
Agreement, the other Financing Agreements and any other document referred to
herein or therein without the prior written consent of Lender. Lender may, after
notice to Borrowers, assign its rights and delegate its obligations under this
Agreement and the other Financing Agreements and further may assign, or sell
participations in, all or any part of the Loans, the Letter of Credit
Accommodations or any other interest herein to another financial institution or
other person. in which event, the assignee or participant shall have, to the
extent of such assignment or participation, the same rights and benefits as it
would have if it were the Lender hereunder, except as otherwise provided by the
terms of such assignment or participation.
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12.5 Entire Agreement. This Agreement, the other Financing Agreements, any
supplements hereto or thereto, and any instruments or documents delivered or to
be delivered in connection herewith or therewith represents the entire agreement
and understanding concerning the subject matter hereof and thereof between the
parties hereto, and supersede all other prior agreements, understandings,
negotiations and discussions, representations, warranties, commitments,
proposals, offers and contracts concerning the subject matter hereof, whether
oral or written.
IN WITNESS WHEREOF, Lender and Borrowers have caused these presents to be
duly executed as of the day and year first above written.
LENDER BORROWER
CONGRESS FINANCIAL CORPORATION XXXXX CORPORATION
By: XXXXXXXX XXXXXXXXXX By: M. D'AMOUR
Title: Vice President Title: Vice President
Address: Chief Executive Office:
1133 Avenue of the Americas 000 Xxxxxxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxxxxxxxxx, Xxx Xxxxxx 00000
IFC DISPOSABLES, INC.
By: M. D'AMOUR
Title: Vice President
Chief Executive Office:
00 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
BRIDGEWATER MANUFACTURING CORP.
By: M. D'AMOUR
Title: Vice President
Chief Executive Office:
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
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EXHIBIT B
CERTAIN ACCOUNT DEBTOR CONCENTRATIONS
MEDLINE INDUSTRIES INC.
XXXXXXXX-XXXXX CORP.
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SCHEDULE 8.4
EXISTING LIENS
SECURED PARTY DATE UCC NO. JURISDICTION COLLATERAL
------------- ------- ------- ------------ ----------
XXXXX CORPORATION
Caterpillar Financial Services 7/24/97 1781634 NJ Two (2) Lift Trucks
Corporation
Caterpillar Financial Services 5/24/97 1781635 NJ Two (2) Lift Trucks
Corporation
Caterpillar Financial Services 4/19/93 1506050 NJ Two (2) Lift Trucks
Corporation
Advanta Leasing Corp. 9/18/96 1722649 NJ (5) Cordley Tenprite Point
Point of Use Water
Stations Hot & Cold
First Union National Bank $25,000 cash collateral
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SCHEDULE 8.8
BANK ACCOUNTS
BORROWER BANK ACCOUNT NUMBER
-------- ---- --------------
XXXXX CORPORATION First Union National Bank 20632000894912
First Union National Bank 2030153105707
First Union National Bank 2079950009850
First Union National Bank 30153100595
First Union National Bank 2018900075510
First Union National Bank 2556002775
Fleet Bank 0099289819
The Bank of Xxx Xxxx 000000
Bank of America (California) 00106-12038
BRIDGEWATER MANUFACTURING CORP. First Union National Bank 2079950009915
IFC DISPOSABLES, INC. Union Planters National Bank 000-000-0
Union Planters National Bank 000-000-0
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SCHEDULE 8.10
ENVIRONMENTAL MATTERS
Potential environmental liability with respect to former Hosposable
Products, Inc. site at 0&0 Xxxx Xxxxxx, Xxxxx Xxxxx, XX, which is supported by a
$25,000 letter of credit issued by First Fidelity Bank, National Association,
New Jersey, for the account of Hosposable Products, Inc., in favor of Xxxxxx
Xxxxxx, Commissioner, New Jersey Department of Environment Protection.
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SCHEDULE 9.9
EXISTING INDEBTEDNESS
Amounts owed in connection with the guarantees listed in Schedule 9.10.
Cash collateral for the support of a letter of credit issued by First
Fidelity Bank, National Association, New Jersey, for the account of Hosposable
Products, Inc., in favor of Xxxxxx Xxxxxx, Commissioner, New Jersey Department
of Environment Protection, in the aggregate amount of $25,000.
Unsecured note, $40,000 outstanding, due March, 1998.
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SCHEDULE 9.10
EXISTING LOANS. ADVANCES & GUARANTEES
(1) Advances to former employees for the payment of insurance premiums, in an
aggregate amount not to exceed, at any one time, $1,000.
(2) Inter-company advances/loans among the Borrowers.
(3) Guarantee by Xxxxx Corporation of all payments under preferred shares of
Wood Xxxxx, Inc., a wholly owned Canadian subsidiary, in a maximum face
amount of Cnd$7,868,951 with an approximate dividend rate of 4% per annum.
40
