Exhibit 10.9
LOAN AGREEMENT
(Corporation, LLC or Partnership)
[LOGO] M&T Bank
Manufacturers and Traders Trust Company
Rochester, New York August, 1999 $5,000,000.00
BORROWER: XXXXXX X. BLACK CORPORATION
a(n) |X| corporation |_| general partnership |_| limited partnership |_| _______
organized under the laws of New York State having its chief executive office at
000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000.
BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation
with its chief executive xxxxxx xx Xxx X & X Xxxxx, Xxxxxxx, XX 00000.
Attention: Office of General Counsel
The Bank and Borrower agree as follows:
1. THE LOAN. See Addendum
a.
b. Repayment. Payment of principal, interest and all other amounts
pursuant to this Agreement and under the Notes shall be made in lawful money of
the United States in immediately available funds at the Bank's banking office at
One M&T Plaza, Buffalo, New York, or at such other office as may be specified by
the Bank.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS. The Borrower for itself and,
unless expressly waived by the Bank, for each subsidiary, parent and other
entity under common control with or at least 50% owned by Borrower (a
"Subsidiary"; collectively, Borrower and each Subsidiary are the "Borrower")
represents, warrants and covenants with the Bank that now and continuing
throughout the term of this Agreement:
a. Use of Proceeds. The Loan proceeds will be used only for the purpose
specified to the Bank in the Addendum.
b. Good Standing; Authority. The Borrower (i) is an entity duly organized,
validity existing and in good standing under the laws of the jurisdiction in
which it was formed, (ii) is duly authorized to do business in each jurisdiction
in which failure to be so qualified might have a material adverse effect on its
business or assets and (iii) has the power and authority to own each of its
assets and to use them as contemplated now and in the future.
c. Compliance. The Borrower conducts its business and operations and the
ownership of its assets in compliance with each applicable statute, regulation
and other law, including without limitation environmental laws. All approvals,
including without limitation authorizations, permits, consents, franchises,
licenses, registrations, filings, declarations, reports and notices (the
"Approvals") necessary for the conduct of Borrower's business and for the Loan
have been duly obtained and are in full force and effect. The Borrower is in
compliance with the Approvals, with its articles of incorporation and bylaws or
other organizational documents and with each agreement to which it is a party or
by which it or any of its assets is bound.
d. Legality. The execution, delivery and performance by Borrower of this
Agreement and all related documents (i) are in furtherance of Borrower's
purposes and within its power and authority; (ii) do not (A) violate any
statute, regulation or other law or any judgment, order or award of any court,
agency or other governmental authority or of any arbitrator or (B) violate
Borrower's certificate of incorporation or other governing instrument,
constitute a default under any agreement binding on Borrower or result in a lien
or encumbrance on any assets of Borrower: and (iii) have been duly authorized by
all necessary corporate or partnership actions.
e. Fiscal Year. The fiscal year of Borrower is the calendar year unless
the following blank states otherwise: year ending _________________, 199_/20__.
f. Accounting; Tax Returns and Payment of Claims. The Borrower will
maintain a system of accounting and reserves in accordance with generally
accepted accounting principles, has filed and will file each tax return required
of it and, except as disclosed in an attached Schedule, has paid and will pay
when due each tax, assessment, fee, charge, fine and penalty imposed by any
taxing authority upon it or any of its assets, income or franchises, as well as
all amounts owed to mechanics, materialmen, landlords, suppliers and the like in
the normal course of business.
g. Title to Assets; Insurance. Borrower has good and marketable title to
each of its assets free of security interests, mortgages or other liens or
encumbrances, except as set forth on an attached Schedule titled "Permitted
Liens" or pursuant to the Bank's prior written consent Borrower will maintain
its property in good repair and will on request provide the Bank with evidence
of insurance coverage satisfactory to Bank, including without limitation fire
and hazard, liability, workers' compensation and business interruption insurance
and flood hazard insurance as required.
h. Judgments and Litigation. There is no pending or threatened claim,
audit, investigation, action or other legal proceeding or judgment, order or
award of any court, agency or other governmental authority or arbitrator which
involves Borrower or its assets and might have a material adverse effect upon
Borrower or threaten the validity of this Agreement or any related document or
action. Borrower will immediately notify Bank upon acquiring knowledge of any
such action.
i. Full Disclosure. Neither this Agreement nor any certificate, financial
statement or other writing provided to the Bank by or on behalf of Borrower
contains any statement of fact that is incorrect or misleading in any material
respect or omits to state any fact necessary to make any such statement not
incorrect or misleading. The Borrower has not failed to disclose to the Bank any
fact that might have a material adverse effect on Borrower or on the Bank's
decision to lend.
j. Financial and Other Information; Certificates of No Default. During the
term of this Agreement, Borrower shall promptly deliver to Bank copies of all
annual reports, proxy statements and similar information distributed to
shareholders or partners and of all filings with the Securities and Exchange
Commission and the Pension Benefit Guaranty Corporation and shall provide, in
form satisfactory to the Bank: (i) within sixty days after the end of each of
its first three fiscal quarters, consolidating and consolidated statements of
income and cash flows for the quarter, for the corresponding quarter in the
previous fiscal year and for the period from the end of the previous fiscal
year, with a consolidating and consolidated balance sheet as of the quarter end;
(ii) within ninety days after the end of each fiscal year, consolidating and
consolidated statements of Borrower's income and cash flows and its
consolidating and consolidated balance sheet as of the end of such fiscal year,
setting forth comparative figures for the preceding fiscal year and to be:
|X| audited |_| reviewed |_| compiled
by an independent certified public accountant acceptable to the Bank; all such
statements shall be certified by Borrower's chief financial officer or partner
to be correct and in accordance with Borrower's records and to present fairly
the results of Borrower's operations and cash flows and its financial position
at year end in conformity with generally accepted accounting principles: and
(iii) with each statement of income, a certificate executed
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by Borrower's chief executive and chief financial officers or managing partners
(A) setting forth the computations required to establish Borrower's compliance
with each financial covenant during the statement period, (B) stating that the
signers of the certificate have reviewed this Agreement and the operations and
condition (financial or other) of Borrower and each of its Subsidiaries during
the relevant period and (C) stating that no Event of Default occurred during the
period, or if an Event of Default did occur, describing its nature, the date(s)
of its occurrence or period of existence and what action Borrower has taken with
respect thereto. If no box is checked above, Borrower shall supply financial
reports in the form and number of copies satisfactory to the Bank.
k. Inspections. Promptly upon the Bank's request, Borrower will permit the
Bank's officers, attorneys or other agents to inspect its premises, examine and
copy its records and discuss its business, operations and financial or other
condition with its responsible officers and independent accountants.
l. Changes in Management and Control. Immediately upon any change in the
identity of Borrower's chief executive officers or in its beneficial ownership,
Borrower will provide to the Bank a certificate executed by its President or
managing partner specifying such change.
m. Notice of Defaults and Material Adverse Changes. Immediately upon
acquiring reason to know of (i) any Event of Default or (ii) any event or
condition that might have a material adverse effect upon Borrower, Borrower will
provide to the Bank a certificate executed by Borrower's chief executive and
financial officers or partners specifying the date(s) and nature of the event
and what action Borrower has taken or proposes to take with respect to it.
n. Further Assurances. Promptly upon the request of the Bank, Borrower
will execute and deliver each writing and take each other action that the Bank
deems necessary or desirable in connection with any transaction contemplated by
this Agreement.
o. Systems. That (i) Borrower has assessed its equipment (including
embedded systems), software, firmware and computer systems (including equipment
or systems supplied by others or with which Borrower's equipment and systems
exchange date data) that are material to Borrower conducting its business and/or
performing operations (collectively, the "Systems") to determine whether such
Systems accurately process date data from, into, and between the twentieth and
twenty-first centuries, including leap year calculations ("Y2K Compliant"); (ii)
in sufficient time before December 31, 1999, Borrower will have corrected and
redeployed any non-Y2K Compliant Systems so that all its Systems are Y2K
Compliant and all Systems will have been tested to confirm that they are Y2K
Compliant and (iii) the expense of correcting and redeploying any non-Y2K
Compliant Systems and all System testing, and/or the reasonably foreseeable
consequence of any System failing to be Y2K Compliant will not have a material
adverse effect on Borrower. Upon the Bank's request, Borrower shall provide the
Bank with updates on the status of its Systems' Year 2000 readiness.
3. FINANCIAL COVENANTS. During the term of this Agreement, Borrower shall not,
and shall not suffer or permit any of its Subsidiaries to, without the prior
written consent of the Bank, violate any of the following covenants or any
"Additional Covenants" on any attached Schedule;
a.
b.
c. Fiscal Year. Change its fiscal year;
d. Indebtedness. Permit any indebtedness (including direct and contingent
liabilities) not described on an attached Schedule titled "Permitted
Indebtedness" except for trade indebtedness or current liabilities for salary
and wages incurred in the ordinary course of business and not substantially
overdue;
e. Liens. Permit any of its assets to be subject to any security interest,
mortgage or other lien or encumbrance, except as set forth on an attached
Schedule titled "Permitted Liens" and except for liens for property taxes not
yet due; pledges and deposits to secure obligations or performance for workers'
compensation, bids, tenders, contracts other than notes, appeal bonds or public
or statutory obligations; and materialmen's, mechanics', carriers' and similar
liens arising in the normal course of business;
f.
g.
h.
i. Investments. Make any investment other than in FDIC insured deposits or
United States Treasury obligations of less than one year, or in money market or
mutual funds administering such investments, except as set forth on an attached
Schedule titled "Permitted Investments";
j. Loans. Make any loan, advance or other extension of credit except as
disclosed in an attached Schedule titled "Permitted Loans", except for
endorsements of negotiable instruments deposited to Borrower's deposit account
for collection, trade credit in the normal course of business and intercompany
loans approved in writing by the Bank;
k. Distributions. Declare or pay any distribution, except for (i)
dividends payable solely in stock and (ii) cash dividends paid to Borrower by
its Subsidiary; or
l. Changes In Form. (i) Transfer or dispose of substantially all of Its
assets, (ii) participate in any merger, consolidation or other absorption, (iii)
acquire substantially all of the assets of any other entity, (iv) do business
under or otherwise use any name other than its true name, (v) make, terminate or
permit to be revoked any election pursuant to Subchapter S of the Internal
Revenue Code or (vi) make any material change in its business, structure,
purposes or operations that might have a material adverse effect on Borrower.
4. EVENTS OF DEFAULT; ACCELERATION. The following constitute an event of default
("Event of Default"): (i) failure by Borrower to make any payment when due
(whether at the stated maturity, by acceleration or otherwise) of the amounts
due under this Agreement or the Note within ten days of the date when due, or
any part thereof, or there occurs any event or condition which after notice,
lapse of time or both will permit such acceleration; (ii) Borrower defaults in
the performance of any covenant or other provision with respect to this
Agreement or the Note or any other agreement between Borrower and the Bank or
any of its affiliates or subsidiaries (collectively, "Affiliates"); (iii)
Borrower fails to pay when due (whether at the stated maturity, by acceleration
or otherwise) any indebtedness for borrowed money owing to any third party or
any Affiliate, the occurrence of any event which could result in acceleration of
payment of any such indebtedness or the failure to perform any agreement with
any third party; (iv) the reorganization, merger, consolidation or dissolution
of Borrower (or the making of any agreement therefor); the sale, assignment,
transfer or delivery of all or substantially all of the assets of Borrower to a
third party; or the cessation by Borrower as a going business concern; (v) the
death or judicial declaration of
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incompetency of Borrower, if an individual; (vi) failure to pay, withhold or
collect any tax as required by law; the service or filing against Borrower or
any of its assets of any lien (other than a lien permitted in writing by the
Bank), judgment, garnishment, order or award; (vii) if Borrower becomes
insolvent or is generally not paying its debts as such debts become due; (viii)
the making of any general assignment by Borrower for the benefit of creditors;
the appointment of a receiver or similar trustee for Borrower or its assets; or
the making of any, or sending notice of any intended, bulk sale; (ix) Borrower
commences, or has commenced against it, any proceeding or request for relief
under any bankruptcy, insolvency or similar laws now or hereafter in effect in
the United States of America or any state or territory thereof or any foreign
jurisdiction or any formal or informal proceeding for the dissolution or
liquidation of, settlement of claims against or winding up of affairs of
Borrower; (x) any representation or warranty made in this Agreement or the Note,
any related document, any agreement between Borrower and the Bank or any
Affiliate or in any financial statement of Borrower proves to have been
misleading in any material respect when made; Borrower omits to state a material
fact necessary to make the statements made in this Agreement or the Note, any
related document, any agreement between Borrower and the Bank or any Affiliate
or any financial statement of Borrower not misleading in light of the
circumstances in which they were made; or, if upon the date of execution of this
Agreement, there shall have been any materially adverse change in any of the
facts disclosed in any financial statement, representation or warranty that was
not disclosed in writing to the Bank at or prior to the time of execution
hereof; (xi) any pension plan of Borrower fails to comply with applicable law or
has vested unfunded liabilities that, in the opinion of the Bank, might have a
material adverse effect on Borrower's ability to repay its debts; (xii) the
occurrence of any event described in sub-paragraph 4(i) through and including
4(xi) hereof with respect to any endorser, guarantor or any other party liable
for, or whose assets or any interest therein secures, payment of any of the
amounts due under this Note ("Guarantor"); (xiii) there occurs any change in the
management or ownership of Borrower or any Guarantor which is, in the opinion of
the Bank, materially adverse to its interest and which remains uncorrected for
thirty days after the Bank notifies Borrower of its opinion; or (xiv) any
Additional Event of Default specified in the Addendum occurs. All amounts
hereunder and under the Note shall become immediately due and payable upon the
occurrence of 4(ix) above, or at the Bank's option, upon the occurrence of any
other Event of Default. Nothing contained in this Agreement or otherwise shall
preclude Bank from demanding, at any time, payment of any demand note executed
by Borrower in favor of Bank, whether or not an Event of Default has occurred.
5. EXPENSES. The Borrower shall pay to the Bank on demand all costs and expenses
(including but not limited to attorneys' fees and disbursements whether for
internal or outside counsel) incurred by the Bank in connection with the Loan,
whether or not the Loan is made and including without limitation costs of
collection, of preserving or exercising any right or remedy of the Bank under
this or any related security agreement or guaranty, of workout or bankruptcy
proceedings by or against Borrower, and of defending against any claim asserted
as a direct or indirect result of the Loan. Expenses shall accrue interest at
the Default Rate set forth in the Note from the date of demand until payment is
received by the Bank.
6. NONWAIVER BY BANK. All rights and remedies of the Bank are cumulative, and no
right or remedy shall be exclusive of any other right or remedy. No single,
partial or delayed exercise by the Bank of any right or remedy, shall preclude
full and timely exercise by the Bank at any time of any right or remedy of the
Bank without notice or demand, at the Bank's sole option. No course of dealing
or other conduct, no oral agreement or representation made by the Bank or usage
of trade shall operate as a waiver of any right or remedy of the Bank. No waiver
of any right or remedy of the Bank shall be effective unless made specifically
in writing by the Bank.
7. RIGHT OF SETOFF. If an Event of Default occurs, the Bank shall have the right
to set off against the amounts owing under this Agreement and the Note any
property held in a deposit or other account or otherwise with the Bank or its
Affiliates or otherwise owing by the Bank or its Affiliates in any capacity to
Borrower or any guarantor or endorser of the Note. Such set-off shall be deemed
to have been exercised immediately at the time the Bank or such Affiliate elect
to do so.
8. NOTICES. Any notice or demand hereunder shall be duly given if delivered or
mailed to Borrower (at its address on the Bank's records) or to the Bank (at the
address on page one and separately to the Bank officer responsible for
Borrower's relationship with the Bank). Such notice or demand shall be deemed
effective if delivered, upon personal delivery or if mailed, 3 business days
after deposit in an official depository maintained by the United States Post
Office for the collection of mail or 1 business day after delivery to a
nationally recognized overnight delivery service. Notice by e-mail is not valid
notice under this or any other agreement between Borrower and the Bank.
9. TERM; SURVIVAL. See Addendum.
10. MISCELLANEOUS. This Agreement with the Note and all collateral documents
including without limitation security agreements and guarantees contains the
entire agreement between the Bank and Borrower with respect to the Loan, and
supersedes every course of dealing, other conduct, oral agreement and
representation previously made by the Bank. No change in this Agreement shall be
effective unless made in a writing duly executed by the Bank. Borrower agrees
that in any legal proceeding, a copy of this Note kept in the Bank's course of
business may be admitted into evidence as an original. This Agreement is a
binding obligation enforceable against Borrower and its successors and assigns
and shall inure to the benefit of the Bank and its successors and assigns. Each
provision of this Agreement shall be Interpreted as consistent with existing law
and shall be deemed amended to the extent necessary to comply with any
conflicting law. If a court deems any provision invalid, the remainder of the
Agreement shall remain in effect. Section headings are for convenience only.
11. JOINT AND SEVERAL. If there is more than one Borrower, each of them shall be
jointly and severally liable for all amounts and obligations which become due
under this Agreement and the term "Borrower" shall include each as well as all
of them.
12. GOVERNING LAW; JURISDICTION. This Agreement has been delivered to and
accepted by the Bank and will be deemed to be made in the State of New York.
This Agreement will be interpreted in accordance with the laws of the State of
New York excluding its conflict of laws rules. BORROWER HEREBY IRREVOCABLY
CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK
STATE IN A COUNTY OR JUDICIAL DISTRICT WHERE THE BANK MAINTAINS A BRANCH AND
CONSENTS THAT THE BANK MAY SERVE ANY SERVICE OF PROCESS BY NATIONALLY RECOGNIZED
OVERNIGHT COURIER SERVICE DIRECTED TO BORROWER AT BORROWER'S ADDRESS SET FORTH
HEREIN AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED ON THE BUSINESS DAY
AFTER DEPOSIT WITH SUCH COURIER; PROVIDED THAT NOTHING CONTAINED IN THIS
AGREEMENT WILL PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR
JUDGMENT OR EXERCISING ANY RIGHTS AGAINST BORROWER INDIVIDUALLY, AGAINST ANY
SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN ANY OTHER COUNTY, STATE OR
OTHER FOREIGN OR DOMESTIC JURISDICTION. Borrower acknowledges and agrees that
the venue provided above is the most convenient forum for both the Bank and
Borrower. Borrower waives (i) any objection to venue and any objection based on
a more convenient forum in any action instituted under this Agreement: (ii) any
right to assert any counterclaim or setoff or any defense based upon a statute
of limitations, a claim of laches or any other legal theory; and (iii) its right
to attack a final judgment that is obtained as a direct or indirect result of
any such action.
13. WAIVER OF JURY TRIAL. BORROWER AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY,
AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY BORROWER AND THE BANK MAY
HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS
NOTE OR THE TRANSACTIONS RELATED HERETO. BORROWER REPRESENTS AND WARRANTS THAT
NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY
TRIAL WAIVER. BORROWER ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO
THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
14. ADDENDUM. The attached Addendum is an integral part of this Agreement.
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SCHEDULE
Schedule of Permitted Liens (for use with Section 2g of this Agreement)
Schedule of Additional Covenants (for use with Section 3 of this Agreement)
1. Borrower shall also comply with all covenants contained in a General
Security Agreement executed and delivered to Bank by Borrower on or about
February 9, 1996 ("Existing S/A"), including but not limited to covenants
contained in Section 4 of the Existing S/A.
Schedule of Permitted Investments (for use with Section 3i of this Agreement)
Schedule of Permitted Indebtedness (for use with Section 3d of this Agreement)
Schedule of Permitted Loans (for use with Section 3j of this Agreement)
XXXXXX X. BLACK CORPORATION
Witness: By: /s/ Xxxxx X. Xxxxxx
-------------------------- ----------------------------------
(Signature) Xxxxx X. Xxxxxx
Title: CEO - Secretary
-------------------------- Date: 8/18/99
(Typed Name)
TIN # 00-0000000
MANUFACTURERS AND TRADERS TRUST COMPANY
By _______________________________
J. Xxxxxxxx Xxxxx
Title: Vice President
Date: ____________________________
ACKNOWLEDGMENT
STATE OF NEW YORK )
: SS.
COUNTY OF MONROE )
On the ______ day of August in the year 1999, before me personally came XXXXX X.
XXXXXX
|_| Partnership to me known and known to me to be a general partner of the
partnership described in and which executed the above
instrument, and __he duly acknowledged to me that __he
executed the above instrument for and on the behalf of said
partnership.
|X| Corporation to me known, who, being by me duly sworn, did depose and say
that __he resides in ________________________________________;
that __he is the ______________________ of XXXXXX X. BLACK
CORPORATION, the corporation described in and which executed
the above instrument; and that __he signed his (her) name
thereto by order of the board of directors or said
corporation.
|_| LCC to me known, who, being duly sworn, did depose and say that
__he resides at _________________________________________;
that __he is the ____________________________________________
of the limited liability company described in and which
executed the above instrument; and that __he signed his (her)
name thereto by order of the members/managers of said limited
liability company.
/s/ Xxxxxxx X. Xxxxx
--------------------------------------
Notary Public
Xxxxxxx X. Xxxxx #4844856
Notary Public
State of NY, Monroe County
My Commission Expires 3/30/01
--------------------------------------------------------------------------------
BANK USE ONLY
Authorization Confirmed: _______________________________________________________
ADDENDUM TO A LOAN AGREEMENT
This Addendum to a Loan Agreement is made August ____, 1999, by and
between XXXXXX X. BLACK CORPORATION ("Borrower"), a domestic corporation with an
office and principal place of business located at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 and MANUFACTURERS AND TRADERS TRUST COMPANY ("Bank"),
a domestic corporation with an office and principal place of business located at
Xxx X&X Xxxxx, Xxxxxxx, Xxx Xxxx 00000. This Addendum is an integral part of the
Loan Agreement.
1. Section 1a of the preprinted Loan Agreement is deemed deleted and
replaced with the following:
"1. LOAN LIMIT. Heretofore, Bank provided Borrower with a
$1,500,000.00 line of credit ("Existing Line"). Loans made to Borrower by
Bank under the Existing Line are discretionary with Bank and are evidenced
by Borrower's $1,500,000.00 Grid Note dated October 1, 1997 ("Grid Note
1"). A true copy of the Grid Note 1 is attached hereto as Exhibit A.
Borrower has requested Bank to provide Borrower with a $5,000,000.00
Demand Loan to replace the Existing Line, which Bank is willing to provide
to Borrower on the terms and conditions specified below.
Bank hereby establishes for Borrower a demand loan account ("Loan
Limit"), the unpaid principal balance of which shall not at any time
exceed the Maximum Credit. Pursuant to which, provided that no Event of
Default has occurred and/or no condition exists, which with notice, lapse
of time or both would constitute an Event of Default, Borrower may make
requests for approval of a loan under this Loan Limit at any time from the
Closing Date until the earlier of the following:
a. The date Bank demands payment of the Grid Note.
b. The date Bank terminates Borrower's right to make loan
requests under this Loan Limit by giving Borrower written notice of
termination, as further specified in the last paragraph in this Section 1.
c. The Termination Date.
Loans under this Loan Limit are discretionary with Bank and
conditioned upon prior approval by Bank. Borrower acknowledges to Bank
that Bank may refuse to make a loan under this Loan Limit for any reason
or for no reason whatsoever. A loan request approved by Bank is referred
to below as an "Approved Loan". Proceeds of Approved Loans
may be used by Borrower for working capital purposes and to provide bridge
financing.
The fact that a particular loan request is disapproved by Bank
shall have no effect on this Loan Limit, nor on Borrower's rights to make
future requests for loans under this Loan Limit, nor on Borrower's
obligation to pay the Grid Note and the other Indebtedness in full. Once
Bank has made a total of $5,000,000.00 in Loans under this Loan Limit,
which shall include all amounts currently due and owing under the Existing
Line, no additional requests to borrow may be made, even if Borrower has
repaid prior Loans made under this Loan Limit prior to the Termination
Date.
The Approved Loan shall be deemed made immediately upon the
crediting of the Approved Loan proceeds to Borrower's checking account
with Bank or forwarding or applying the Approved Loan proceeds as
otherwise agreed by Bank and Borrower. Each Approved Loan, together with
the unpaid principal balance of all previous Approved Loans, shall be
automatically refinanced and consolidated into one loan, referred to below
as the "Consolidated Loan".
The Consolidated Loan is payable on demand and shall be
evidenced by Borrower's $5,000,000.00 Grid Note with attached Addendum
("Grid Note"), which shall be in the form of Exhibit B, with blanks
appropriately completed. Interest shall accrue on the Grid Note in the
amount specified in the Grid Note, and be payable to Bank by Borrower as
indicated in the Grid Note.
Bank may terminate Borrower's rights to make loan requests
under this Loan Limit at any time by giving Borrower written notice of
termination. The giving of such notice by Bank shall not effect Bank's
rights under this Agreement or under the Grid Note or under any other Loan
Document, nor on Borrower's obligation to pay the Grid Note in full on
demand."
2. Section 9 of the preprinted Loan Agreement is deemed deleted and
replaced with the following:
"9. TERM; SURVIVAL. This Agreement shall remain in full force and
effect until the Termination Date. Borrower's obligation to pay
Bank's expenses shall survive the Termination Date. Each of
Borrower's representations, warranties, covenants and agreements
shall survive during the term of this Agreement and shall be
presumed to have been relied upon by Bank."
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3. Bank's obligation to provide the Loan Limit referred to in Section 1 of
this Addendum to a Loan Agreement is contingent upon there being no material
adverse change in the financial condition of Borrower prior to the Closing Date,
to the other terms and conditions set forth in this Agreement and to the
following additional conditions precedent:
On the Closing Date, Borrower shall pay to the Bank a
commitment fee of $20,000.00, which shall be fully earned and non-refundable.
Xxxxxx Interactive, Inc., ("Xxxxxx") and GSBC Ohio
Corporation, ("GSBC") shall each execute and deliver to Bank a Reaffirmation of
Guaranty of payment of the Indebtedness ("Reaffirmation Guaranties"). Each of
the Reaffirmation Guaranties shall be in the form of Exhibit "C", with blanks
appropriately completed.
Xxxxx Xxxxxx & Associates, ("LHA") shall execute and deliver
to Bank a Continuing of Guaranty of payment of the Indebtedness ("LHA
Guaranty"). The LHA Guaranty shall be in the form of Exhibit "D", with blanks
appropriately completed.
To secure payment of the Indebtedness and performance of their
obligations under their respective Reaffirmation Guaranties, Xxxxxx and GSBC
shall continue to grant to Bank a first, perfected security interest in all
their respective presently owned and after-acquired personal property and
fixtures, pursuant to the terms of an Amended and Restated General Security
Agreement ("Amended G/S/A"). Each of the Amended G/S/A shall be in the form of
Exhibit "E", with blanks appropriately completed.
To secure payment of the Indebtedness and performance of its
obligations under the LHA Guaranty, LHA shall grant to Bank a first, perfected
security interest in all of its presently owned and after-acquired personal
property and fixtures, pursuant to the terms of a General Security Agreement
("LHA G/S/A"). The LHA G/S/A shall be in the form of Exhibit "F", with blanks
appropriately completed.
Borrower's Secretary shall execute and deliver to Bank a
Secretary's Certificate of Borrowing Resolutions, which shall be in the form of
Exhibit "G" with blanks appropriately completed.
Borrower shall cause its attorneys (and the attorneys for
Xxxxxx, LHA and GSBC) to provide Bank with an opinion letter, containing such
opinions as Bank and its attorneys shall deem appropriate.
Bank, at its sole option, may extend the time in which
Borrower is required to provide any of the Loan Documents required to be
delivered under this Agreement. Such extension may be written or oral, express
or implied. Such extension shall not operate as a waiver of the requirement that
such Loan Document be provided, and Borrower's failure to provide such Loan
Document or Loan Documents to Bank after the required date shall, at Bank's
option, constitute a default under Section 4(c) of the preprinted Loan
Agreement. The requirement that Borrower deliver to Bank any Loan Document
called for under the Agreement may only be waived in a writing signed by an
authorized representative of Bank.
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Borrower and all Guarantors shall execute and/or deliver to
Bank such additional Loan Documents and other items as Bank and its attorneys
shall deem appropriate and/or required in connection with the transactions
contemplated by this Agreement and the other Loan Documents.
Borrower shall pay all Bank's attorneys' fees and
disbursements incurred and to be incurred in connection with the preparation,
negotiation and execution of this Agreement and related Loan Documents.
4. Borrower further represents and warrants to Bank as follows:
GSBC and LHA are each wholly owned subsidiaries of Borrower.
Borrower has no other subsidiaries.
Borrower is a wholly owned subsidiary of Xxxxxx.
Xxxxxx is a Delaware corporation, authorized to do business in
New York State, with its principal place of business at 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 ("Premises"). GSBC is an Ohio corporation, with its
principal place of business located in Boardman, Ohio. LHA is a New York
corporation with its principal place of business at the Premises.
On or about June 9, 1999, Xxxxxx changed its corporate name
from Xxxxxx Black International, Ltd to its present name.
Exhibit "H" contains a list of the address of all locations
where Borrower and/or HBI and/or GSBC and/or LHA has an office or other place of
business or is otherwise transacting business or where any personal property
owned by them or any of them is or will be located (collectively "Business
Locations"). Borrower will notify Bank in writing at anytime that any other
Business Location is acquired, leased, created or occupied.
Bank and Borrower acknowledge that the Existing Line is deemed
replaced by the Loan Limit, and that all loans made by Borrower under the
Existing Line, evidenced by Grid Note 1, shall be aggregated into the Loan
Limit. Borrower further acknowledges to Bank that on August __, 1999, Grid Note
1 had an unpaid principal balance of $__________, that amounts due pursuant to
Grid Note 1 are payable on demand and constitute Borrower's valid and binding
obligation, enforceable by Bank against Borrower according to its terms, without
offset against or defense thereto of any nature or kind.
Borrower acknowledges to Bank that the General Security
Agreement executed by Borrower in favor of Bank on or about February 9, 1996
("Existing S/A."), remains in full force and effect, and constitutes Borrower's
valid and binding obligation, enforceable by Bank against Borrower according to
its terms, without offset against or defenses thereto of any nature or kind.
Borrower represents and warrants to Bank that all representations and warranties
contained in the Existing S/A are true and correct as of the Closing Date, that
Borrower has not violated any term or provision of the Existing S/A, that
Borrower is not in default under the
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Existing S/A, and that Exhibits "A" and "B" to the Existing S/A are and remain
accurate in all respects. Neither the execution of this Agreement, nor any other
matter, modifies limits or terminates Borrower's obligations to Bank under the
Existing S/A.
5. The Agreement is governed by New York law and may not be amended or
terminated orally. BORROWER WAIVES THE RIGHT TO A JURY TRIAL IN AN ACTION IN
WHICH BANK AND BORROWER ARE BOTH PARTIES. No Entity is a third party beneficiary
of this jury trial waiver. Borrower also waives the right to require Bank to
post an undertaking in any action commenced by Bank against Borrower or in any
action in which Borrower and Bank are parties, including but not limited to any
action under Article 71 of the CPLR. Any litigation involving this Agreement
and/or any Loan Document and/or any Collateral shall, at Bank's sole option, be
triable only in a court located in Monroe County, New York.
6. Unless otherwise defined in the Agreement, the following terms shall
have the indicated definitions. Certain capitalized terms may be defined
elsewhere in this Agreement or in one or more of the Loan Documents.
a. "Agreement" shall mean this Loan Agreement, together with the
Exhibits, as extended, supplemented, replaced and/or amended from time to time.
b. "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a legal holiday in New York State.
c. "Closing Date" shall mean the date that Bank and Borrower execute
this Agreement.
d. "Collateral" shall mean all Borrower's presently owned and
after-acquired personal property and fixtures, and all presently owned and
after-acquired personal property and fixtures in which Borrower now or hereafter
has any interest.
e. "Entity" shall mean any person, partnership, corporation, limited
liability company, limited liability partnership, joint venture, governmental
agency, governmental entity of any kind or any business association of any
nature or kind.
f. "Eligible Accounts Receivable" shall mean any account receivable
aged less than 90 days.
g. "Generally Accepted Accounting Principals" or "GAAP" shall mean
those principles, methods and practices set forth in Opinions and Pronouncements
of the Accounting Principles Board and the Financial Accounting Standards Board
of the American of Certified Public Accountants or which have other substantial
authoritative support and are applicable in the circumstances as to the date of
Borrower's financial report.
h. "Indebtedness" shall mean any and all monetary obligations of
Borrower to Bank, of any nature or kind, whenever arising, whether direct or
contingent, and whether
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arising under this Agreement and/or under any Note (including but not limited to
the Grid Note and Grid Note 1), or under any other note or agreement (including
but not limited to obligations of Borrower to Bank arising under guaranties of
the obligations of another Entity to Bank), entered into at any time by Borrower
in favor of Bank.
i. "Loan Documents" shall mean any and all Notes and other
agreements executed at any time by Borrower and/or by any other Entity in
connection with this Agreement.
j. "Maximum Credit" shall mean the lesser of $5,000,000.00 or
$2,000,000.00 plus 80% of eligible accounts receivable. Any amounts due and
owing under the Existing Line shall be aggregated into the Loan Limit and
deducted from the Maximum Credit.
k. "Note" shall mean the Grid Note and any other note or other
instrument executed at any time by Borrower in favor of Bank pursuant to the
terms of this Agreement, and all extensions, renewals, modifications and
replacements of all or any of the above instruments.
l. "Termination Date" shall mean the date that the Indebtedness is
paid in full, and Borrower no longer has any rights to borrow or to request to
borrow under any agreement entered into at any time by Borrower in favor of
Bank, including but not limited to this Agreement.
m. Unless otherwise defined herein, all accounting definitions shall
have the definitions given to them under GAAP.
IN WITNESS WHEREOF, Borrower and Bank have executed and unconditionally
delivered this Addendum to a Loan Agreement to the other on August ____, 1999.
XXXXXX X. BLACK CORPORATION
By: /s/ Xxxxx X Xxxxxx
---------------------------------------
Xxxxx X Xxxxxx, Chief Financial Officer
MANUFACTURERS AND TRADERS TRUST COMPANY
By:
---------------------------------------
J. Xxxxxxxx Xxxxx, Vice President
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STATE OF NEW YORK)
COUNTY OF MONROE ) ss.:
On the 18th day of August, in the year 1999, before me, the undersigned,
a Notary Public in and for said State, personally appeared XXXXX X. XXXXXX,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Notary Public
Xxxxxxx X. Xxxxx #4844856
Notary Public
State of NY, Monroe County
My Commission Expires 3/30/01
STATE OF NEW YORK)
COUNTY OF MONROE ) ss.:
On the ____ day of August, in the year 1999, before me, the undersigned,
a Notary Public in and for said State, personally appeared J. XXXXXXXX XXXXX,
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
--------------------------------
Notary Public
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