LOAN AGREEMENT
November 29, 1995
Innovative Accessories, Inc.
0000 Xxxxx X00 Xxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Re: $1,250,000 Working Capital Loan
Ladies and Gentlemen:
Innovative Accessories, Inc. ("Borrower"), an Oklahoma corporation has
requested that Xxxx International Holdings, Inc. ("Lender") lend to Borrower the
sum of an amount not less than $1,250,000 as a working capital line of credit.
Lender is willing to lend such funds to Borrower upon the terms and subject to
the conditions set forth in this letter agreement (the "Agreement"). All
references to Borrower shall also apply to Guarantor with equal force and
effect. In consideration of the promises contained in this Agreement, Borrower
and Lender agree as follows:
1. Loan. Lender agrees to lend to Borrower a Working Capital Loan of an
amount not less than $1,250,000 according to this Agreement.
2. Working Capital Line of Credit. The Working Capital Loan shall be
evidenced by a revolving promissory note in the form of attached Exhibit A, duly
executed by Borrower (together with any renewals or extensions of the note, (the
"Note") dated November 29, 1995, and secured by a duly executed Security
Agreement (the "Security Agreement") in the form of attached Exhibit B. Lender
shall make notations on the Note, as appropriate, which shall be binding on the
parties absent manifest error, of the amount outstanding thereunder. The
proceeds of the Loan shall be used to pay off the following:
(a) An amount not to exceed $85,000 to First State Bank (Noble, OK) in
full satisfaction of an outstanding loan and for release of security interests
filed by First State Bank on certain of Borrower's assets;
(b) An amount not to exceed $230,000 to Bank One in full satisfaction of
an outstanding loan and for release of security interests filed by Bank One on
certain of Borrower's assets;
(c) An amount to exceed $313,000 to DFM Corporation in full satisfaction
of outstanding balance owing and for release of security interests filed by DFM
Corporation on certain of Borrower's assets;
(d) An amount not to exceed $54,000 to Mr. Xxxxxx Xxxx in full
satisfaction of loans owing to Xx. Xxxx;
(e) An amount not to exceed $90,000 to Mr. Xxxx XxXxxxxxxx in full
satisfaction of loans owing to Xx. XxXxxxxxxx;
(f) An amount not to exceed $120,000 to Muxelberg, Xxxxxx, Inc. in full
satisfaction of open payable terms outstanding;
(g) An amount not to exceed $105,000 to the Internal Revenue Service in
full satisfaction of withholding taxes, interest and penalties not currently
payable;
(h) An amount not to exceed $150,000 to Trans America Financial Services,
Inc. (in Oklahoma City, OK) in full satisfaction of outstanding balance on loan
to Xxxxx X. Xxxx for his home in Oklahoma City, OK;
(i) An amount not to exceed $101,000 to Xx. Xxxxxx X. Xxxxx as partial
payment of her loan to Borrower; and
(j) An amount not to exceed $2,000 for trade payables.
(k) Any amount in excess of $1,250,000 shall be used for general working
capital purposes for the Company.
3. Guaranty. Xxxxx X. Xxxx shall personally guaranty all obligations of
the Borrower, including payment and performance, under the Loan Documents (as
defined below).
4. Definitions. As used in this Agreement the following terms have the
following meanings (equally applicable to singular and plural forms of the terms
defined):
(a) "Inventory" means the Borrower's raw materials and finished goods held
for sale in the ordinary course of business.
(b) "Loan Documents" means this Agreement, the Note, the Security
Agreement, and all other documents to be executed in connection with this
Agreement, all of which are listed on Schedule 1.
(c) "Person" means an individual, corporation, partnership, joint venture,
trust or unincorporated organization or government or other agency or political
subdivision thereof.
(d) "Tangible Net Worth" means the aggregate of the notes receivable due
Borrower from Borrower's employees and shareholders, capital stock, paid in
surplus and retained earnings of the Borrower (excluding stock of the Borrower
held by the Borrower) determined in accordance with generally accepted
accounting principles consistently applied from year to year, less the book
value of all assets of the Borrower that would be treated as intangibles under
generally accepted accounting principles including without limitation, such
items as good will, trade marks, trade names, service marks, copyrights, patents
and licenses.
(e) "Total Liabilities" means the aggregate of the liabilities of Borrower
determined and computed in accordance with generally accepted accounting
principles consistently applied from year to year.
5. Commitment for Revolving Loan. The Lender agrees, in accordance with
the terms of this Agreement, to make advances (the "Advances") to the Borrower
from time to time from the date hereof to and including June 30, 1996 (the
"Termination Date") or the earlier termination of the Commitment under the terms
of this Agreement, in an aggregate amount not to exceed $2,100,000 (the
"Commitment") provided, however, that the aggregate amount of Advances
outstanding shall not at any time exceed the Commitment. Within the limits of
the Commitment the Borrower may borrow, prepay and reborrow under this Section
5.
6. Making of Advances. Borrower may request Advances by giving oral notice
of the amount thereof to the Lender. Any request for an Advance shall be deemed
to be a representation that the Borrower's representations and warranties in all
Loan Documents are true and correct as of the date of the Advance and that no
event has occurred and is continuing, or will result from such Advance, which
constitutes an Event of Default or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
7. Mandatory Prepayment. In the event that the aggregate outstanding
principal amount of the Note shall exceed the Commitment, the Borrower shall pay
to the Lender the amount of such excess together with the amount of accrued
interest to the date of such prepayment on the amount prepaid, within five days
after demand by the Lender for such amounts.
8. Conditions Precedent to Making Loan. Lender shall have no obligation to
make the loan hereunder unless the Lender shall have received on or before the
date of such loan the following documents:
(a) The Note, properly executed and delivered on behalf of Borrower.
(b) Evidence of the irrevocable assignment of all patents developed and
held by Xxxxx X. Xxxx to the Borrower, and conditional assignments (in form and
substance satisfactory to Lender) of such patents to Lender.
(c) The Security Agreement in a form of Exhibit B attached hereto,
properly executed and delivered on behalf of the Borrower, granting to the
Lender a security interest in all of the Borrower's inventory, accounts and
other property described therein as security for the performance of the
Borrower's obligations under this Agreement and the Note, together with any
UCC-1 Financing Statement or other document deemed necessary by the Lender to
perfect the security interest granted by the Security Agreement.
(d) UCC-3 Statements, properly executed and ready for filing, releasing
all existing liens on Borrower's assets.
(e) Evidence of the irrevocable transfer of all capital stock of the
Borrower held by Xx. Xxxxx Xxxx, Xx. Xxxx Xxxx and Xx. Xxxxxxx Xxxx to Xx. Xxxxx
X. Xxxx.
(f) A legal opinion issued by Borrower's counsel in the form of Exhibit C
attached hereto.
(g) Evidence that that certain agreement between the Borrower and Xxxxxx X
Xxxxx, whereby she may purchase up to 49% of the Borrower has been duly and
irrevocably revoked
9. Representations and Warranties of the Borrower. To induce the Lender to
make the loan, the Borrower represents, warrants, and covenants as follows:
(a) Litigation. No litigation or governmental proceeding is pending or, to
best of the Borrower's knowledge, threatened against the Borrower which may have
a materially adverse effect on the financial condition or operations of the
Borrower, except such litigation as is detailed in the opinion of counsel and
except as noted on Schedule 2, attached hereto.
(b) Taxes. The Borrower has filed all required federal and state income
and excess profits tax returns and has paid all required taxes.
(c) Assumed Liabilities. A true and complete listing of all agreements,
contracts and commitments to which the Borrower is a party as of the date hereof
with respect to the Borrower's business as set forth on Schedule 3 hereto. The
Borrower has delivered to the Lender a true, complete and correct copy of each
such agreement, contract or other commitment with all amendments and other
modifications thereto and all such agreements, contracts and commitments are now
in full force and effect and valid and enforceable in accordance with their
terms. The Borrower is not now in default under any of such agreements,
contracts and commitments and, to the best of the Borrower's knowledge, there is
no default under any of the same by any other party thereto. No event has
occurred that, with the giving of notice or the passage of time or both, would
constitute a default by the Borrower under any of the contracts and, to the best
of the Borrower's knowledge, no event or omission has occurred that, with the
giving of notice or the passage of time or both, would constitute such a default
by any other party thereto. The Borrower has not collected any payment or other
amount owing on or subsequent to the date hereof under any of the contracts,
agreements or other commitments.
(d) Licenses and Permits; Compliance with Laws. The Borrower has all
material licenses, permits, certificates and approvals, including health and
safety permits, from federal, state, local and foreign authorities necessary to
conduct its business and own and operate its assets in the manner such business
is presently conducted as such assets are presently owned and operated
(collectively, the "Permits"), all of which are in full force and effect. To
such Borrower's knowledge (i) the Borrower has fully complied with all material
conditions of the Permits, (ii) the Borrower has not received notice of any
material default or violation, (iii) the Borrower does not have knowledge of any
event which with the lapse of time or giving of notice or both would become a
material default or violation in the due observance of any Permit, and (iv) the
Borrower has not received notice to the effect that there is lacking any
material Permit required in connection with the current use or operation of any
of Borrower's property. The Borrower has made available to the Lender true,
correct and complete copies of all material Permits.
(e) Personnel and Benefits. Schedule 4 attached hereto is an accurate and
complete list of the names of all persons currently employed or retained as
independent contractors by the Borrower, together with a statement of the rate
of compensation currently payable to each such person. The Borrower has no
written or oral agreement with any employee that is not terminable by the
Borrower upon not more than thirty (30) days written notice without payment of
any additional consideration. The Borrower has delivered to the Lender documents
that accurately describe all material employee benefit policies, plans and
arrangements, including, without limitation, contributions to hospitalization
and/or other insurance programs, vacation and sick leave policies, and profit
sharing, pension and retirement plans. Nothing contained in this Agreement shall
be construed to impose any obligation on the Purchaser with respect to any of
the Borrower's employees or agents.
(f) ERISA. No Plan (as that term is defined in the Employees' Retirement
Income Security Act of 1974 ("ERISA")) of Borrower which is subject to Part 3 of
Subtitle B of Title 1 of ERISA had an accumulated funding deficiency (as such
term is defined in ERISA) as of the last day of the most recent fiscal year of
such Plan ended prior to the date hereof, or would have had such an accumulated
funding deficiency on such date if such year were the first year of such Plan,
and no material liability to the Pension Benefit Guaranty Corporation has been,
or is expected by the Borrower to be, incurred with respect to any such Plan. No
Reportable Event (as defined in ERISA) has occurred and is continuing in respect
to any such Plan.
(g) Subsidiaries. Borrower has no Subsidiaries.
(h) Use of Proceeds. No proceeds of this loan will be used to acquire any
security in any transaction which is subject to Sections 13 and 14 of the
Securities Exchange Act of 1934. The proceeds shall be used as set forth in
Section 2 hereof.
(i) Patents, Trademarks, etc. The Borrower has good and marketable title
to all patents, trademarks, processes, copyrights, franchises and licenses,
title to which is necessary for the operation of Borrower's business.
(j) Regulation U. The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of this loan will be used to purchase or carry any
margin stock or to extend credit to others for the purpose of purchasing or
carrying any margin stock.
(k) Liabilities and Manufacturer's Representative Commissions. All
liabilities, including all manufacturer's representative commissions, are
current as of the date of this Agreement except for liabilities noted in Section
2 above.
(l) The balance sheet furnished to the Lender by the Lender's audit firm
(identified on attached Exhibit D) has been reviewed by the Borrower and fairly
presents the financial condition of Borrower.
(m) Environmental Matters. To the Borrower's knowledge:
(i) The Company is in substantial compliance with all environmental
laws, except for noncompliance that, individually or in the aggregate, is
not reasonably expected to have a material adverse effect;
(ii) There is no proceeding pending or threatened before any court
or governmental agency in which the Borrower has been named as a defendant
or potentially responsible party for alleged noncompliance with any
environmental law, whether or not occurring at or on a site owned or
operated by the Borrower, except for proceedings pending or threatened
that, individually or in the aggregate, are not reasonably expected to
have a material adverse effect;
(iii) There is no proceeding threatened before any court or
governmental agency in which the Borrower reasonably expects to be named
as a defendant or potentially responsible party for alleged noncompliance
with any environmental law except for proceedings that, individually or in
the aggregate, are not reasonably expected to have a material adverse
effect;
(iv) The Borrower has not caused or suffered to occur any release of
a hazardous material in, on, under or above any portion of any real
property owned or leased by the Borrower which is reasonably likely to
give rise to liability under any environmental law, where such liability,
if incurred, would, individually or in the aggregate, have a material
adverse effect. There are no storage tanks, containers, drums, cylinders,
cans or deposits of hazardous materials located in, on, under or above any
portion of any real property owned or leased by the Borrower, other than
in compliance with all applicable laws.
(v) The Borrower has not received any notice from (i) any
governmental agency alleging a violation of any environmental law,
including, without limitation, any environmental law relating, directly or
indirectly, to the environment on, in, under or above any real property
owned or leased by the Borrower, any real property formerly owned or
leased by the Borrower, or any property adjoining property owned or leased
by the Borrower or any affiliated or related person or entity, or (ii)
from any former or subsequent owner, lienholder or former or present
tenant or other user of any real property owned or leased by the Borrower
or any real property formerly owned or leased by the Borrower, seeking
indemnification for any cost associated with the presence of hazardous
materials on, beneath or adjoining any real property owned or leased by
the Borrower or any real property formerly owned or leased by the
Borrower, or (iii) from any other person or entity with respect to the
alleged release by the Borrower or any predecessors thereof of a hazardous
material into the environment.
(n) Lack of Misrepresentations. No representation or warranty made herein
by the Borrower nor any statement or certificate given or to be given to the
lender pursuant hereto on or after the date hereof, in connection with
performance under this Agreement, with respect to the transactions contemplated
hereby, contains or will contain any untrue statement of a material fact, or
knowingly omits or will knowingly omit to state a material fact necessary to
make the statements contained therein not misleading.
(o) Survival of Representations and Warranties. The foregoing
representations and warranties are made by Borrower with the knowledge and
expectation that Lender is placing reliance thereon, notwithstanding any
investigations undertaken by or on behalf of Lender prior to the date hereof,
and such representations and warranties are true as of the date hereof.
10. Affirmative Covenants. So long as the Note remains unpaid or the
Lender has a commitment under this Agreement, the Borrower will, unless the
Lender gives its prior written consent:
(a) Financial Reporting. Furnish to the Lender: (i) as soon as available
and in any event within 30 days after the end of each month (except the final
month) of each fiscal year of the Borrower, balance sheets of the Borrower as of
the end of such month and statements of income and retained earnings of the
Borrower for the period commencing at the end of the previous fiscal year and
ending with the end of such month, certified by the controller of the Borrower;
(ii) as soon as available and in any event within 120 days after the end of each
fiscal year of the Borrower, a copy of the annual report for such year for the
Borrower, containing financial statements for such year certified in a manner
acceptable to the Lender by independent public accountants acceptable to the
Lender; (iii) such other information concerning the conditions or operations,
financial or otherwise, of the Borrower as the Lender from time to time may
reasonably request and; (iv) within 20 days after the end of each month an
accounts receivable and accounts payable aging for the month most recently
ended.
(b) Notification of Default, Etc. Notify the Lender as promptly as
practicable (but in any event not later than 5 Business Days) after Borrower
obtains knowledge of: (i) the occurrence of any event which constitutes an Event
of Default or which would constitute an Event of Default with the passage of
time or the giving of notice or both; or (ii) the commencement of any litigation
or governmental proceedings of any type which could materially adversely affect
the financial condition or business operations of the Borrower.
(c) Minimum Net Working Capital. Maintain at all times a difference
between the amount of total current assets and the amount of total current
liabilities of the Company that is not less than $200,000.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain its
corporate existence, rights, franchises and privileges in the jurisdiction of
its incorporation, and qualify and remain qualified, as a foreign corporation in
each jurisdiction in which such qualification is necessary or desirable in view
of its business and operations or the ownership of its properties. In addition,
the Borrower shall not issue or sell, or agree to issue or sell, any additional
shares of capital stock or grant any options, warrants or rights to purchase any
shares of capital stock.
11. Events of Default. "Events of Default" in this Agreement means any of
the following events:
(a) Failure of the Borrower to pay any monetary obligation pursuant to any
Loan Document when due or, if payable on demand, upon demand;
(b) Any representation or warranty made by, or on behalf of, Borrower or
Guarantor in, or pursuant to, any Loan Document shall prove to have been
incorrect in any material respect when made;
(c) Default in performance of any other covenant or agreement of Borrower
in, or pursuant to, any Loan Document;
(d) The entry against Borrower of a final judgment, decree or order for
the payment of money in the excess of $100,000 and the continuance of such
judgment, decree or order unsatisfied for a period of 30 days without a stay of
execution, except for contested taxes;
(e) Any Reportable Event (as defined in ERISA) shall have occurred and
continue for 30 days; or any Plan shall have been terminated by Borrower not in
compliance with ERISA, or a trustee shall have been appointed by a court to
administer any Plan, or the Pension Benefit Guaranty Corporation shall have
instituted proceedings to terminate any Plan or to appoint a trustee to
administer any Plan; or any of Borrower's retirement plans subject to ERISA is
not in compliance with ERISA;
(f) Lender shall at any time have reasonable grounds to believe that the
prospect of due and punctual payment of any of the obligations of the Borrower
now or hereafter existing under, or pursuant to, this Agreement is impaired.
12. Rights and Remedies. If any Event of Default shall occur and be
continuing, Lender may exercise any or all of the following rights and remedies;
(a) Declare the Note, all interest thereon, and all other obligations
under, or pursuant to any Loan Document to be immediately due and payable, and
upon such declaration such Note, interest and other obligations shall
immediately be due and payable, without presentment, demand, protest, or any
notice of any kind, all of which are expressly waived;
(b) Exercise any right or remedy available to Lender at law or in equity.
13. No Waiver; Cumulative Remedies. No failure or delay on the part of
Lender in exercising any right or remedy pursuant to any Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, remedy or power preclude other or further exercise thereof, or the
exercise of any other right, remedy or power. The remedies in the Loan Documents
are cumulative and are not exclusive of any remedies provided by law.
14. Amendments and Waivers. No amendment or waiver of any provision of any
Loan Document shall be effective unless such amendment or waiver is in writing
and is signed by the Lender, and such amendment or waiver shall be effective
only in the specific instance and for the specific purpose for which it was
given.
15. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telegraphic communication) and mailed
or telegraphed or delivered, if to the Borrower, at 0000 Xxxxx X-00 Xxxxxxx
Xxxx, Xxxxxxxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxx, President, if to the
Guarantor, at 0000 Xxxx X00 Xxxxxxx Xxxx, Xxxxxxxx Xxxx, XX 00000, and if to the
Lender, at 000 Xxxx Xxxxxxxxx, Xxxxx, XX 00000, Attention: Xxx Xxxxxx, Chief
Financial Officer; or, as to each party, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and communications shall, when mailed or telegraphed, be effective when
deposited in the mails or delivered to the telegraph company, respectively,
addressed as aforesaid.
16. Costs and Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Lender in connection with the preparation of the Loan Documents,
including reasonable attorneys fees and legal expenses, as well as all costs and
expenses of Lender, including reasonable attorneys fees and expenses, in
connection with the administration and enforcement of the Loan Documents
(whether suit is commenced or not).
17. Right of Set-off. Upon the occurrence and during the continuance of
any Event of Default the Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any
amounts owed by Lender to Borrower against any and all of the obligations of the
Borrower now or hereafter existing under any Loan Documents, irrespective of
whether or not the Lender shall have made any demand under any Loan Documents
and although such obligations may be unmatured. The Lender agrees promptly to
notify the Borrower after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Lender under this Section are in addition to
other rights and remedies (including, without limitation, other rights of
set-off) which Lender may have.
18. Governing Law. All Loan Documents shall be governed by the laws of the
State of Minnesota. Any term used in this Agreement and not otherwise defined
shall have the definition given that term in the Uniform Commercial Code as in
effect in the State of Minnesota from time to time. If any term in this
Agreement shall be held to be illegal or unenforceable, the remaining portions
of this Agreement shall not be affected, and this Agreement shall be construed
and enforced as if this Agreement did not contain the term held to be illegal or
unenforceable. The Borrower hereby irrevocably submits to the jurisdiction of
the Minnesota District Court, Fourth Division, and the Federal District Court,
District of Minnesota, Fourth Division, over any action or proceeding arising
out of or relating to this Agreement and agrees that all claims in respect of
such action or proceeding may be heard and determined in any such court.
19. Binding Effect; Assignment. All Loan Documents shall be binding upon
and inure to the benefit of the Loan Parties and the Lender and their respective
successors and assigns. Borrower shall not have the right to assign its rights
or interest under such agreement without the prior written consent of the
Lender.
If the Borrower agrees to the foregoing, Borrower should execute this
Agreement on the space indicated below.
BORROWER:
INNOVATIVE ACCESSORIES, INC.
By /s/ Xxxxx X. Xxxx
Its PRES
By /s/ Xxxxxxx Xxxx
Its Secretary Treasurer
Accepted by:
XXXX INDUSTRIES INCORPORATED
By /s/ Xxx X. Xxxxxx
CFO
The undersigned, Xxxxx X. Xxxx, majority shareholder and President of
Borrower, hereby irrevocably and unconditionally guarantees the prompt payment
of the foregoing loan.
GUARANTOR
/s/ Xxxxx X. Xxxx
Xxxxx X. Xxxx
Date: November 29, 1995
