EXHIBIT 10.1
FINOVA
Loan and Security Agreement
Borrowers: Core Technologies (Pennsylvania), Inc. ("Core"), Maris
Equipment Co., Inc. ("Maris") and Airo Clean, Inc.
("Airo")
Address: 000 Xxxxxx Xxxxx
Xxxxx, Xxxxxxxxxxxx 00000
Date: March 14, 1997
THIS LOAN AND SECURITY AGREEMENT ("Agreement") dated the date set forth above,
is entered into by and among the borrowers named above (individually, a
"Borrower" and collectively, the "Borrowers"), whose address is set forth above
and FINOVA Capital Corporation ("Lender"), whose address is 000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000.
1. LOANS.
1.1 Total Facility. Upon the terms and conditions set forth herein and
provided that no Event of Default or event which, with the giving of notice or
the passage of time, or both, would constitute an Event of Default, shall have
occurred and be continuing, Lender shall, upon a Borrower's request, make
advances to such Borrower from time to time in an aggregate outstanding
principal amount not to exceed the Total Facility amount (the "Total Facility")
set forth on the schedule hereto (the "Schedule"), subject to deduction of
reserves for accrued interest and such other reserves as Lender deems proper
from time to time in good faith, and less amounts Lender may be obligated to pay
in the future on behalf of Borrowers. The Schedule is an integral part of this
Agreement and all references to "herein", "herewith" and words of similar import
shall for all purposes be deemed to include the Schedule.
1.2 Loans. Advances under the Total Facility ("Loans") shall be
comprised of the amounts shown on the Schedule.
1.3 Overlines. If at any time or for any reason the outstanding amount
of advances made pursuant hereto exceeds any of the dollar or percentage
limitations contained in the Schedule (any such excess, an "Overline"), then
Borrowers shall, jointly and severally, upon Lender's demand, immediately pay to
Lender, in cash, the full amount of such Overline. Without limiting Borrowers'
obligation to repay to Lender on demand the amount of any Overline, Borrowers
agree to pay Lender interest on the outstanding principal amount of any
Overline, on demand, at the rate set forth in on the Schedule. Borrowers
obligations under this section shall be joint and several.
1.4 Loan Account. All advances made hereunder shall be added to and
deemed part of the Obligations when made. Lender may from time to time charge
all Obligations of Borrowers to Borrowers' loan account with Lender.
2. CONDITIONS PRECEDENT.
2.1 Initial Advance. The obligation of Lender to make the initial
advance hereunder is subject to the fulfillment, to the satisfaction of Lender
and its counsel, of each of the following conditions on or prior to the date set
forth on the Schedule: (a) Loan Documents. Lender shall have received (i) each
of the Loan Documents, executed by each of the parties thereto and, if
applicable, duly acknowledged for recording or filing in the appropriate
governmental offices; (ii) such Blocked Account or Dominion Account agreements
as it shall determine; and (iii) such other documents, instruments and
agreements in connection herewith as Lender shall require, executed, certified
and/or acknowledged by such parties as Lender shall designate; (b) Terminations
by Existing Lender. Borrowers' existing lender shall have executed and delivered
UCC termination statements and other documentation evidencing the termination of
its liens and security interests in the assets of each Loan Party; (c) Charter
Documents. Lender shall have received copies of each Loan Party's By-laws and
Articles or Certificate of Incorporation, as amended, modified, or supplemented
to the Closing Date, certified by the Secretary of such Loan Party; (d) Good
Standing. Lender shall have received a certificate of corporate status with
respect to each Loan Party, dated within ten (10) days of the Closing Date, by
the Secretary of State of the state of incorporation of such Loan Party, which
certificate shall indicate that such Loan Party is in good standing in such
state; (e) Foreign Qualification. Lender shall have received certificates of
corporate status with respect to each Loan Party, each dated within ten (10)
days of the Closing Date, issued by the Secretary of State of each state in
which its failure to be duly qualified or licensed would have a material adverse
effect on the financial condition or assets of such Loan Party, indicating that
such Loan Party is in good standing; (f) Authorizing Resolutions and Incumbency.
Lender shall have received a certificate from the Secretary of each Loan Party
attesting to (i) the adoption of resolutions of such Loan Party's Board of
Directors and Shareholders (if necessary) authorizing the borrowing of money
from Lender, or the guaranty of the obligations of Borrowers, as applicable, and
execution and delivery of the Loan Documents to which such Loan Party is a
party, and authorizing specific officers of such Loan Party to execute same, and
(ii) the authenticity of original specimen signatures of such officers; (g)
Insurance. Lender shall have received the insurance certificates and certified
copies of policies and Lender's loss payable endorsements required by Section
4.4 hereof, in form and substance satisfactory to Lender and its counsel; (h)
Searches; Certificates of Title. Lender shall have received searches in such
jurisdictions as it shall determine and confirmation of the filing of its
financing statements, and shall have received certificates of title with respect
to the Collateral which shall have been duly executed in a manner sufficient to
perfect all of the security interests granted to Lender; (i) Landlord and
Mortgagee Waivers. Lender shall have received landlord and mortgagee waivers
from the lessors and mortgagees of all locations where any Collateral is
located; (j) Fees. Borrowers, shall have paid all fees payable by them on the
Closing Date pursuant to this Agreement; (k) Opinion of Counsel. Lender shall
have received an opinion of Loan Parties' counsel covering such matters as
Lender shall determine in its sole discretion; (l) Officer Certificate. Lender
shall have received a certificate of the President and the Chief Financial
Officer or similar official of Core, attesting to the accuracy of each of the
representations and warranties of Borrowers set forth in the Agreement and the
fulfillment of all conditions precedent to the initial advance thereunder; (m)
Solvency Certificate. Lender shall have received a signed certificate of Core's
Chief Financial Officer concerning the solvency and financial condition of
Borrowers, on Lender's standard form; (n) Environmental Assessment. Borrowers
shall provide evidence satisfactory to Lender that the subject transaction is
environmentally acceptable; (o) Schedule Conditions. Borrowers shall have
complied with all additional conditions precedent as set forth in the Schedule
attached hereto; and (p) Other Matters. All other documents and legal matters in
connection with the transactions contemplated by this Agreement shall have been
delivered or executed or recorded and shall be in form and substance
satisfactory to Lender and its counsel.
2.2 Subsequent Advances. The obligation of Lender to make any advance
shall be subject to the further conditions precedent that, on and as of the date
of such advance: (a) The representations and warranties of Borrowers set forth
in this Agreement shall be accurate, before and after giving effect to such
advance and to the application of any proceeds thereof; (b) No Event of Default
and no event which, with notice or passage of time or both, would constitute an
Event of Default has occurred and is continuing, or would result from such
advance or from the application of any proceeds thereof; (c) no material adverse
change has occurred in any Borrower's business, operations, financial condition,
or assets or in the condition of the Collateral, or in the prospect of repayment
of the Obligations; and (d) Lender shall have received such other approvals,
opinions or documents as Lender shall reasonably request.
2.3 Guaranty. Each Borrower unconditionally and irrevocably guarantees
and promises to pay to Lender, or order, on demand, in lawful money of the
United States, as and when the same shall become due (by demand, acceleration or
otherwise), all present and future Obligations of the other Borrowers to Lender,
whether heretofore, now or hereafter made, incurred or created, whether
voluntary or involuntary and howsoever arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, secured or unsecured, and whether
such other Borrowers may be liable individually or jointly with others, and
whether recovery upon such Obligations may be or hereafter becomes barred by any
statute of limitations, or whether such Obligations may be or hereafter becomes
otherwise unenforceable.
The obligations of each Borrower under this Section 2.3 are independent
of and separate from the obligations of such Borrower and any other guarantor,
maker or endorser of the Obligations and shall not be reduced by, but shall
survive as if the same had not been made, any and all payments by such Borrower
under this Section 2.3 and/or any other guarantor, maker or endorser of the
Obligations and/or the application of any proceeds from any collateral security
for the Obligations until the Obligations is fully paid and finally discharged.
To the maximum extent permitted by law, each Borrower hereby waives any
claim, right or remedy such Borrower may now have or hereafter acquire against
the other Borrowers that arises under this Section 2.3 and/or from the
performance by any other guarantor including, without limitation, any claim,
remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right or remedy of Lender
against the other Borrowers or any security which Lender now has or hereafter
acquires, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law or otherwise. In addition, each Borrower
hereby waives any right to proceed against the other Borrowers, now or
hereafter, for contribution, indemnity, reimbursement, and any other suretyship
rights and claims, whether direct or indirect, liquidated or contingent, whether
arising under express or implied contract or by operation of law, which such
Borrower may now have or hereafter have as against the other Borrowers with
respect to the Obligations. Each Borrower also hereby waives any rights to
recourse to or with respect to any asset of the other Borrowers. Each Borrower
agrees that in light of the immediately foregoing waivers, such Borrower shall
not be deemed a "creditor" of the other Borrowers, including without limitation,
for purposes of Sections 547 and 550 of the Bankruptcy Code.
Without affecting the liability of any Borrower under this Section 2.3,
from time to time, whether before or after any notice of termination hereof or
before or after any default in respect of the Obligations, Lender, may (without
notice or demand): (a) renew, extend, accelerate, or otherwise change the time
for payment of, or otherwise change any other term or condition of any document
or agreement evidencing or relating to any Obligations, including, without
limitation, to increase or decrease the rate of interest thereon; (b) accept,
substitute, waive, decrease, increase, release, exchange or otherwise alter any
collateral security, in whole or in part, securing the Obligations or any other
guaranty of the Obligations; (c) apply any and all such collateral security and
direct the order or manner of sale thereof as Lender, in its sole discretion,
may determine; (d) add, release or substitute any one or more other guarantors,
makers or endorsers of the Obligations, and otherwise deal with the other
Borrowers or any other guarantor, maker or endorser as Lender may elect; (e) in
Lender's sole discretion, settle, release on terms satisfactory to Lender, or by
operation of law or otherwise, compound, compromise, collect or otherwise
liquidate any Obligations and/or any collateral security therefor in any manner,
and bid and purchase any collateral security at any sale thereof; (f) apply any
and all payments or recoveries from the other Borrowers, from any other
guarantor, maker, endorser or from the undersigned to such of the Obligations as
Lender, in its sole discretion, may determine, whether such Obligations is
secured or unsecured or guaranteed or not guaranteed by others; (g) apply any
and all payments or recoveries from any other guarantor, maker or endorser of
the Obligations or sums realized from collateral security furnished by any of
them upon any of their indebtedness or obligations to Lender as Lender, in its
sole discretion, may determine, whether or not such indebtedness or obligations
relate to the Obligations; and (h) refund at any time, at Lender's sole
discretion, any payment received by Lender in respect of any Obligations, and
payment to Lender of the amount so refunded shall be fully guaranteed under this
Section 2.3; all without in any way diminishing, releasing or discharging the
liability of such Borrower under this Section 2.3.
Upon default of a Borrower in respect of any Obligations, Lender may,
at its option and without notice to any other Borrower, proceed directly against
any other Borrower to collect and recover the full amount of the liability
hereunder, or any portion thereof, and each such other Borrower waives any right
to require Lender to: (a) proceed against the defaulting Borrower, or any other
guarantor, endorser, or other person whomsoever; (b) proceed against or exhaust
any collateral security given to or held by Lender in connection with the
Obligations; (c) give notice of the terms, time and place of any public or
private sale of any real or personal property security for the Obligations or
any other guaranty of the Obligations; or (d) pursue any other remedy in
Lender's power whatsoever. A separate action or actions may be brought and
prosecuted against a Borrower whether or not action is brought against the
defaulting Borrower and/or any other guarantor, maker or endorser of the
Obligations and whether the defaulting Borrower and/or any other guarantor,
maker or endorser be joined in any such action or actions; and each Borrower
waives the benefit of any statute of limitations affecting the liability under
this Section 2.3 or the enforcement this Section 2.3, and agrees that any
payment of any Obligations or other act which shall toll any statute of
limitations applicable thereto shall similarly operate to toll such statute of
limitations applicable to the liability under this Section 2.3.
Each Borrower waives any defense to the enforcement of its obligations
under this Section 2.3 arising by reason of any disability or other defense of
the other Borrowers or by reason of the cessation from any cause whatsoever of
the liability of the other Borrowers or by reason of any act or omission of
Lender or others which directly or indirectly results in or aids the discharge
or release of the other Borrowers or any Obligations or any security in respect
thereof by operation of law or otherwise. The obligations under this Section 2.3
shall be enforceable without regard to the validity, regularity or
enforceability of any of the Obligations or any of the Loan Documents, any other
guaranty of the Obligations or any collateral security documents securing any of
the Obligations or securing any other guaranty of the Obligations. No exercise
by Lender of, and no omission of Lender to exercise, any power or authority
recognized herein and no impairment or suspension of any right or remedy of
Lender against the other Borrowers, any other guarantor, maker or endorser or
any collateral security shall in any way suspend, discharge, release, exonerate
or otherwise affect any of each Borrower's obligations under this Section 2.3 or
any collateral security furnished by such Borrower or give to such Borrower any
right of recourse against Lender. Each Borrower specifically agrees that the
failure of Lender: (a) to perfect any lien on or security interest in any
property heretofore or hereafter given by the other Borrowers or any guarantor,
maker or endorser to secure payment of the Obligations or of any guaranty of the
Obligations, or to record or file any document relating thereto or (b) to file
or enforce a claim against the estate (either in administration, bankruptcy or
other proceeding) of the other Borrowers, any guarantor, maker or endorser,
shall not in any manner whatsoever terminate, diminish, exonerate or otherwise
affect the liability of such Borrower under this Section 2.3.
If any payments of money or transfers of property made to Lender by any
Borrower, any other guarantor, any maker or any endorser should for any reason
subsequently be declared to be, or in Lender's counsel's good faith opinion be
determined to be, fraudulent (within the meaning of any state or federal law
relating to fraudulent conveyances), preferential or otherwise voidable or
recoverable in whole or in part for any reason (herein after collectively called
"voidable transfers") under the Bankruptcy Code or any other federal or state
law and Lender is required to repay or restore, or in Lender's counsel's opinion
may be so liable to repay or restore, any such voidable transfer, or the amount
or any portion thereof, then as to any such voidable transfer or the amount
repaid or restored and all costs and expenses (including attorneys' fees) of
Lender related thereto, such Borrower's liability under this Section 2.3 shall
automatically be revived, reinstated and restored and shall exist as though such
voidable transfer had never been made to Lender.
Each Borrower warrants and agrees that the waivers set forth in this
Section 2.3 are made with full knowledge of their significance and consequences,
and that under the circumstances, the waivers are reasonable and not contrary to
public policy or law. If any of said waivers are determined to be contrary to
any applicable law or public policy, such waivers shall be effective only to the
maximum extent permitted by law. Should any one or more provisions of this
Section 2.3 be determined to be illegal or unenforceable, all other provisions
hereof shall nevertheless remain effective.
Notwithstanding any provision of this Section 2.3 to the contrary, it
is intended that the obligations of each Borrower under this Section 2.3, not
constitute a "Fraudulent Conveyance" (as defined below). Consequently, each
Borrower agrees that if such Borrower's obligations under this Section 2.3, or
any liens or security interests securing such Borrower's obligations under this
Section 2.3, would, but for the application of this sentence, constitute a
Fraudulent Conveyance, such Borrower's obligations under this Section 2.3 and
each such lien and security interest shall be valid and enforceable only to the
maximum extent that would not cause such Borrower's obligations under this
Section 2.3 or such lien or security interest to constitute a Fraudulent
Conveyance, and such Borrower's obligations under this Section 2.3 shall
automatically be deemed to have been amended accordingly at all relevant times.
For purposes hereof, "Fraudulent Conveyance" means a fraudulent conveyance under
Section 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent
transfer under the provisions of any applicable fraudulent conveyance or
fraudulent transfer law or similar law of any applicable state, nation or other
governmental unit, as in effect from time to time.
3. INTEREST RATE AND OTHER CHARGES.
3.1 Interest; Fees. Borrowers shall pay Lender interest on the daily
outstanding balance of the Receivable Loans, Inventory Loans and undrawn face
amount of the L/C Loan at the per annum rate set forth on the Schedule.
Borrowers shall also pay Lender the fees set forth on the Schedule. Borrowers'
obligations under this Section shall be joint and several.
3.2 Default Interest Rate. Upon the occurrence of an Event of Default,
Borrowers shall pay Lender interest on the daily outstanding balance of
Borrowers' loan account at a rate per annum which is two percent (2%) in excess
of the rate which would otherwise be applicable thereto pursuant to the
Schedule. Borrowers' obligations under this Section shall be joint and several.
3.3 Examination Fees. Borrowers agree to pay to Lender an examination
fee in the amount set forth on the Schedule in connection with each audit or
examination of a Loan Party performed by Lender prior to or after the date
hereof. Without limiting the generality of the foregoing, Borrowers shall pay to
Lender an initial examination fee in an amount equal to the amount set forth on
the Schedule. Such initial examination fee shall be deemed fully earned at the
time of payment and due and payable upon the closing of this transaction, and
shall be deducted from any good faith deposit paid by Borrowers to Lender prior
to the date of this Agreement. Borrowers' obligations under this section shall
be joint and several.
3.4 Excess Interest. In no event whatsoever shall the interest rate and
other charges charged hereunder exceed the highest rate permissible under any
law which a court of competent jurisdiction shall, in a final determination,
deem applicable hereto. In the event that a court determines that Lender has
received interest and other charges hereunder in excess of the highest
permissible rate applicable thereto, Lender shall promptly apply such excess to
the Obligations in such order as Lender shall determine in its sole discretion
or refund the amount thereof to Borrowers, and the provisions hereof shall be
deemed amended to provide for such permissible rate.
4. COLLATERAL.
4.1 Security Interest in the Collateral. To secure the payment and
performance of the Obligations when due, each Borrower hereby grants to Lender a
first priority security interest in all of such Borrower's now owned or
hereafter acquired or arising Inventory, Equipment, Receivables, the Centercore
Note, Trademarks, Licenses, and Patents, and General Intangibles, including,
without limitation, all of such Borrower's Deposit Accounts, money, any and all
property now or at any time hereafter in Lender's possession (including claims
and credit balances), and all proceeds (including proceeds of any insurance
policies, proceeds of proceeds and claims against third parties), all products
and all books and records related to any of the foregoing (all of the foregoing,
together with all other property in which Lender may be granted a lien or
security interest, is referred to herein, collectively, as the "Collateral").
4.2 Perfection and Protection of Security Interest. Each Borrower
shall, at its expense, take all actions requested by Lender at any time to
perfect, maintain, protect and enforce Lender's security interest and other
rights in the Collateral and the priority thereof from time to time, including,
without limitation, (i) executing and filing financing or continuation
statements and amendments thereof and executing and delivering such documents
and titles in connection with motor vehicles as Lender shall require, all in
form and substance satisfactory to Lender, (ii) maintaining a perpetual
inventory and complete and accurate stock records, (iii) delivering to Lender
warehouse receipts, if applicable, covering any portion of the Collateral
located in warehouses and for which warehouse receipts are issued, and, after
the occurrence of an Event of Default, transferring Inventory to warehouses
designated by Lender, (iv) placing notations on such Borrower's books of account
to disclose Lender's security interest therein, (v) at Lender's request,
delivering to Lender all letters of credit on which such Borrower is named
beneficiary and (vi) at Lender's request, delivering to Lender all instruments
evidencing amounts owing to such Borrower. Lender may file, without any
Borrower's signature, one or more financing statements disclosing Lender's
security interest under this Agreement. Each Borrower agrees that a carbon,
photographic, photostatic or other reproduction of this Agreement or of a
financing statement is sufficient as a financing statement. If any Collateral is
at any time in the possession or control of any warehouseman, bailee or any of a
Borrower's agents or processors, such Borrower shall notify such Person of
Lender's security interest in such Collateral and, upon Lender's request,
instruct them to hold all such Collateral for Lender's account subject to
Lender's instructions. From time to time, each Borrower shall, upon Lender's
request, execute and deliver confirmatory written instruments pledging the
Collateral to Lender, but such Borrower's failure to do so shall not affect or
limit Lender's security interest or other rights in and to the Collateral. Until
the Obligations have been fully satisfied and Lender's obligation to make
further advances hereunder has terminated, Lender's security interest in the
Collateral shall continue in full force and effect.
4.3 Preservation of Collateral. Lender may, in its sole discretion, at
any time discharge any lien or encumbrance on the Collateral or bond the same,
pay any insurance, maintain guards, pay any service bureau, obtain any record or
take any other action as is reasonably necessary to preserve the Collateral and
charge the cost thereof to Borrowers' loan account as an Obligation.
4.4 Insurance. Each Borrower will maintain and deliver evidence to
Lender of such insurance required, written by insurers and in amounts
satisfactory to Lender. All premiums shall be paid by each Borrower as and when
due. Accurate and complete copies of the policies shall be delivered by each
Borrower to Lender. If any Borrower fails to do so, Lender may (but shall not be
required to) procure such insurance at Borrowers' expense and charge the cost
thereof to Borrowers' loan account as an Obligation.
5. EXAMINATION OF RECORDS; FINANCIAL REPORTING.
5.1 Examinations. Lender shall at all reasonable times have full access
to and the right to examine, audit, make abstracts and copies from and inspect
each Loan Party's records, files, books of account and all other documents,
instruments and agreements relating to the Collateral and the right to check,
test and appraise the Collateral. Each Borrower will deliver to Lender any
instrument necessary for Lender to obtain records from any service bureau
maintaining records for such Borrower. All instruments and certificates prepared
by any Borrower showing the value of any of the Collateral shall be accompanied,
upon Lender's request, by copies of related purchase orders and invoices. Lender
may, at any time after the occurrence of an Event of Default, remove from a
Borrower's premises such Borrower's books and records (or copies thereof) or
require such Borrower to deliver such books and records or copies to Lender.
Lender may, without expense to Lender, use such of a Borrower's personnel,
supplies and premises as may be reasonably necessary for maintaining or
enforcing Lender's security interest.
5.2 Reporting Requirements. Each Borrower shall furnish Lender, upon
request, such information and statements as Lender shall request from time to
time regarding such Borrower's business affairs, financial condition and the
results of its operations. Without limiting the generality of the foregoing,
each Borrower will provide Lender with (i) copies of sales invoices, customer
statements and credit memoranda issued, remittance advices and reports and
copies of deposit slips, upon request; (ii) copies of shipping and delivery
documents, upon request; (iii) on or prior to the dates set forth on the
Schedule, monthly agings (aged from invoice date) and reconciliations of
Receivables (with listings of concentrated accounts), payables reports,
perpetual inventory reports and unaudited financial statements with respect to
the prior month prepared on a basis consistent with such statements prepared in
prior months and otherwise in accordance with generally accepted accounting
principles, consistently applied; (iv) audited consolidated annual financial
statements, prepared in accordance with generally accepted accounting principles
applied on a basis consistent with the most recent Prepared Financials provided
to Lender by Borrowers, with (A) the unqualified report thereon of independent
certified public accountants acceptable to Lender and (B) a reconciliation of
the consolidating monthly, internally prepared, unaudited financial statements
to the audited consolidated annual financial statements, each as soon as
available, and in any event, within ninety (90) days after the end of each
fiscal year of Core; (v) if prepared, a management letter from the independent
certified public accountant which prepared the audited consolidated financial
statements, as soon as available, and in any event, within ninety (90) days
after the end of each fiscal year of Core; (vi) an annual operating budget
(including income statements, balance sheets and cash flow statements by month)
for the upcoming fiscal year of Core (on a month by month basis), at least
thirty (30) days prior to the end of each fiscal year of Core; and (vii) such
certificates relating to the foregoing as Lender may request, including, without
limitation, a monthly certificate in the form of Exhibit A hereto from the
president or the chief financial officer of Core showing Core's compliance with
the financial covenant set forth in this Agreement, and stating whether any
Event of Default has occurred or event which, with giving of notice or the
passage of time, or both, would constitute an Event of Default, and if so, the
steps being taken to prevent or cure such Event of Default.
6. COLLATERAL REPORTING; INVENTORY.
6.1 Invoices. No Borrower will re-date any invoice or sale from the
original date thereof or make sales on extended terms beyond those customary in
such Borrower's industry, or otherwise extend or modify the term of any
Receivable. If any Borrower becomes aware of any matter affecting any
Receivable, including information affecting the credit of the account debtor
thereon, such Borrower will promptly notify Lender in writing.
6.2 Instruments. In the event any Receivable is or becomes evidenced by
a promissory note, trade acceptance or any other instrument for the payment of
money, each Borrower will immediately deliver such instrument to Lender
appropriately endorsed to Lender and, regardless of the form of any presentment,
demand, notice of dishonor, protest and notice of protest with respect thereto,
such Borrower will remain liable thereon until such instrument is paid in full.
6.3 Physical Inventory. Each Borrower shall conduct a physical count of
the Inventory at such intervals as Lender requests, and promptly supply Lender
with a copy of such accounts accompanied by a report of the value (calculated at
the lower of cost or market value on a first in, first out basis) of the
Inventory and such additional information with respect to the Inventory as
Lender may request from time to time.
6.4 Returns. For so long as no Event of Default has occurred and is
continuing and subject to the provisions of Section 9.2, if any account debtor
returns any Inventory to any Borrower in the ordinary course of its business,
such Borrower shall promptly determine the reason for such return and promptly
issue a credit memorandum to the account debtor (sending a copy to Lender if
such credit memorandum exceeds Twenty Thousand Dollars ($20,000)) in the
appropriate amount. In the event any attempted return occurs after the
occurrence of any Event of Default, each Borrower shall (i) hold the returned
Inventory in trust for Lender, (ii) segregate all returned Inventory from all of
its other property, (iii) conspicuously label the returned Inventory as Lender's
property and (iv) immediately notify Lender of the return of any Inventory,
specifying the reason for such return, the location and condition of the
returned Inventory, and on Lender's request deliver such returned Inventory to
Lender. No Borrower shall consign any Inventory.
7. PRINCIPAL PAYMENTS; PROCEEDS OF COLLATERAL.
7.1 Principal Payments. Except where evidenced by notes or other
instruments issued or made by any Borrower to Lender specifically containing
payment provisions which are in conflict with this Section 7.1 (in which event
the conflicting provisions of said notes or other instruments shall govern and
control), that portion of the Obligations consisting of principal payable on
account of Receivable Loans and Inventory Loans shall be payable by Borrowers to
Lender immediately upon the earliest of (i) the receipt by Lender or any
Borrower of any proceeds of any of the Collateral, to the extent of said
proceeds, (ii) the occurrence of an Event of Default in consequence of which
Lender elects to accelerate the maturity and payment of such loans, or (iii) any
termination of this Agreement pursuant to Section 16 hereof; provided, however,
that any Overline shall be payable on demand pursuant to the provisions of
Section 1.3 hereof. Borrowers' obligations under this section shall be joint and
several.
7.2 Collections. Until Lender notifies Borrowers to the contrary, each
Borrower may make collection of all Receivables of such Borrower for Lender and
shall receive all payments as trustee of Lender and immediately deliver all
payments to Lender in their original form as set forth below, duly endorsed in
blank. Lender or its designee may, at any time after the occurrence of an Event
of Default, notify account debtors that the Receivables of such Borrower have
been assigned to Lender and of Lender's security interest therein, and may
collect such Receivables directly and charge the collection costs and expenses
to Borrowers' loan account. Each Borrower agrees that, in computing the charges
under this Agreement, all items of payment shall be deemed applied by Lender on
account of the Obligations two (2) Business Days after receipt by Lender of good
funds which have been finally credited to Lender's account, whether such funds
are received directly from any Borrower or from the Blocked Account bank (if
any) or the Dominion Account bank (if any), pursuant to Section 7.3; provided,
however, that for purposes of calculating Borrowers' borrowing availability
pursuant to Section 1.2 of the Schedule, all items of payment shall be deemed
applied by Lender on account of the Obligations upon receipt by Lender of good
funds which have been finally credited to Lender's account, whether such funds
are received directly from any Borrower or from the Blocked Account bank (if
any) or the Dominion Account bank (if any), pursuant to Section 7.3. Lender is
not, however, required to credit Borrowers' account for the amount of any item
of payment which is unsatisfactory to Lender in its sole discretion and Lender
may charge Borrowers' loan account for the amount of any item of payment which
is returned to Lender unpaid.
7.3 Establishment of a Lockbox Account or Dominion Account. At the
request of Lender, all proceeds of Collateral shall be deposited by Borrowers
into a lockbox account, or such other "blocked account" as Lender may require
(each, a "Blocked Account") pursuant to an arrangement with such bank as may be
selected by Borrowers and be acceptable to Lender. Each Borrower shall issue to
any such bank an irrevocable letter of instruction directing said bank to
transfer such funds so deposited to Lender, either to any account maintained by
Lender at said bank or by wire transfer to appropriate account(s) of Lender. All
funds deposited in a Blocked Account shall immediately become the sole property
of Lender and Borrowers shall obtain the agreement by such bank to waive any
offset rights against the funds so deposited. Lender assumes no responsibility
for any Blocked Account arrangement, including without limitation, any claim of
accord and satisfaction or release with respect to deposits accepted by any bank
thereunder. Alternatively, Lender may establish depository accounts in the name
of Lender at a bank or banks for the deposit of such funds (each, a "Dominion
Account") and Borrowers shall deposit all proceeds of Receivables and all cash
proceeds of any sale of Inventory or, to the extent permitted herein, Equipment
or cause same to be deposited, in kind, in such Dominion Accounts of Lender in
lieu of depositing same to Blocked Accounts.
7.4 Payments Without Deductions. Borrowers shall pay principal,
interest, and all other amounts payable hereunder, or under any related
agreement, without any deduction whatsoever, including, but not limited to, any
deduction for any setoff or counterclaim.
7.5 Collection Days Upon Repayment. In the event Borrowers repay the
Obligations in full at any time hereafter, such payment in full will be credited
(conditioned upon final collection) to Borrowers' loan account two (2) Business
Days after Lender's receipt thereof.
7.6 Monthly Accountings. Lender will provide Borrowers monthly with an
account of advances, charges, expenses and payments made pursuant to this
Agreement. Such account shall be deemed correct, accurate and binding on
Borrowers and an account stated (except for reverses and reapplications of
payments made and corrections of errors discovered by Lender), unless any
Borrower notifies Lender in writing to the contrary within thirty (30) days
after each account is rendered, describing the nature of any alleged errors or
omissions.
8. POWER OF ATTORNEY.
Each Borrower appoints Lender and its designees as such Borrower's
attorney, with the power to endorse such Borrower's name on any checks, notes,
acceptances, money orders or other forms of payment or security that come into
Lender's possession; to sign such Borrower's name on any invoice or xxxx of
lading relating to any Receivable, on drafts against customers, on assignments
of Receivables, on notices of assignment, financing statements and other public
records, on verifications of accounts and on notices to customers or account
debtors; to send requests for verification of Receivables to customers or
account debtors; after the occurrence of any Event of Default, to notify the
post office authorities to change the address for delivery of such Borrower's
mail to an address designated by Lender and to open and dispose of all mail
addressed to such Borrower; and to do all other things Lender deems necessary or
desirable to carry out the terms of this Agreement. Such Borrower hereby
ratifies and approves all acts of such attorney. Neither Lender nor any of its
designees will be liable for any acts or omissions nor for any error of judgment
or mistake of fact or law acting as such Borrower's attorney. This power, being
coupled with an interest, is irrevocable until the Obligations have been fully
satisfied and Lender's obligation to provide loans hereunder shall have
terminated.
9. RECEIVABLES.
9.1 Eligibility. Each Borrower represents and warrants that each
Receivable covers and will cover a bona fide sale or lease and delivery by it of
goods or the rendition by it of services in the ordinary course of its business,
and will be for a liquidated amount and Lender's security interest will not,
unless promptly disclosed to Lender in writing for amounts greater than Twenty
Thousand Dollars ($20,000), be subject to any offset, deduction, counterclaim,
rights of return or cancellation, lien or other condition. If any representation
and warranty herein is breached as to any Receivable or any Receivable ceases to
be an Eligible Receivable for any reason other than payment thereof, then Lender
may, in addition to its other rights hereunder, designate any and all
Receivables owing by that account debtor as not Eligible Receivables; provided,
that Lender shall in any such event retain its security interest in all
Receivables, whether or not Eligible Receivables, until the Obligations have
been fully satisfied and Lender's obligation to provide loans hereunder has
terminated.
9.2 Disputes. Each Borrower shall notify Lender promptly of all
disputes and claims and settle or adjust such disputes or claims at no expense
to Lender, but no discount, credit or allowance shall be granted to any account
debtor and no returns of merchandise shall be accepted by such Borrower without
Lender's consent, except for discounts, credits and allowances made or given in
the ordinary course of such Borrower's business. Lender may, at any time after
the occurrence of an Event of Default, settle or adjust disputes and claims
directly with account debtors for amounts and upon terms which Lender considers
advisable in its reasonable credit judgment and, in all cases, Lender will
credit Borrowers' loan account with only the net amounts received by Lender in
payment of any Receivables.
10. EQUIPMENT.
Each Borrower shall keep and maintain the Equipment in good operating
condition and repair and make all necessary replacements thereto to maintain and
preserve the value and operating efficiency thereof at all times consistent with
such Borrower's past practice, ordinary wear and tear excepted. No Borrower
shall permit any item of Equipment to become a fixture (other than a trade
fixture) to real estate or an accession to other property.
11. OTHER LIENS; NO DISPOSITION OF COLLATERAL.
Each Borrower represents, warrants and covenants that (a) all
Collateral is and will continue to be owned by it free and clear of all liens,
claims and encumbrances whatsoever (except for Lender's security interest,
Permitted Encumbrances, and such other liens, claims and encumbrances as may be
permitted by Lender in its sole discretion from time to time in writing), and
(b) such Borrower will not, without Lender's prior written approval, sell,
encumber or dispose of or permit the sale, encumbrance or disposal of any
Collateral or any interest of a Borrower therein, except for the sale of
Inventory in the ordinary course of a Borrower's business. The proceeds of any
such sales shall be remitted to Lender pursuant to this Agreement for
application to the Obligations.
12. GENERAL REPRESENTATIONS AND WARRANTIES.
Each Borrower represents and warrants that:
12.1 Due Organization. Each Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the State set forth on
the Schedule, is qualified and authorized to do business and is in good standing
in all states in which such qualification and good standing are necessary in
order for it to conduct its business and own its property, and has all requisite
power and authority to conduct its business as presently conducted, to own its
property and to execute and deliver each of the Loan Documents to which it is a
party and perform all of its Obligations thereunder, and has not taken any steps
to wind-up, dissolve or otherwise liquidate its assets;
12.2 Other Names. No Borrower has, during the preceding five (5) years,
been known by or used any other corporate or fictitious name except as set forth
on the Schedule, nor has any Borrower been the surviving corporation of a merger
or consolidation or acquired all or substantially all of the assets of any
person during such time except as set forth on the Schedule;
12.3 Due Authorization. The execution, delivery and performance by each
Borrower of the Loan Documents to which it is a party have been authorized by
all necessary corporate action and do not and will not constitute a violation of
any applicable law or of such Borrower's Articles or Certificate of
Incorporation or By-Laws or any other document, agreement or instrument to which
such Borrower is a party or by which such Borrower or its assets are bound;
12.4 Binding Obligation. Each of the Loan Documents to which each
Borrower is a party is the legal, valid and binding obligation of such Borrower
enforceable against it in accordance with its terms;
12.5 Intangible Property. Each Borrower possesses adequate assets,
licenses, patents, patent applications, copyrights, trademarks, trademark
applications and trade names for the present and planned future conduct of its
business without any known conflict with the rights of others, and each is valid
and has been duly registered or filed with the appropriate governmental
authorities;
12.6 Capital. Each Borrower has capital sufficient to conduct its
business, is able to pay its debts as they mature, and owns property having a
fair salable value greater than the amount required to pay all of its debts
(including contingent debts);
12.7 Material Litigation. No Borrower has any pending or overtly
threatened litigation, actions or proceedings which would materially and
adversely affect its business, assets, operations, prospects or condition,
financial or otherwise, or the Collateral or any of Lender's interests therein;
12.8 Title; Security Interests of Lender. Each Borrower has good,
indefeasible and merchantable title to its respective property (including the
Collateral) and, upon the filing of UCC-1 Financing Statements and the recording
of any mortgages or deeds of trust with respect to real property, in each case
in the appropriate offices, this Agreement and such documents will create valid
and perfected first priority liens in such property and the Collateral, subject
only to Permitted Encumbrances;
12.9 Restrictive Agreements; Labor Contracts. No Borrower is a party or
subject to any contract or subject to any charge, corporate restriction,
judgment, decree or order materially and adversely affecting its business,
assets, operations, prospects or condition, financial or otherwise, or which
restricts its right or ability to incur Indebtedness, and no Borrower is a party
to any labor dispute. In addition, no labor contract is scheduled to expire
during the Initial Term of this Agreement, except as disclosed to Lender in
writing prior to the date hereof;
12.10 Laws. No Borrower is in violation of any applicable statute,
regulation, ordinance or any order of any court, tribunal or governmental
agency, in any respect materially and adversely affecting the Collateral or its
business, assets, operations, prospects or condition, financial or otherwise;
12.11 Consents. Each Borrower has obtained or caused to be obtained or
issued any required consent of a governmental agency or other Person in
connection with the financing contemplated hereby;
12.12 Defaults. No Borrower is in default with respect to any note,
indenture, loan agreement, mortgage, lease, deed or other agreement to which it
is a party or by which it or its assets are bound, nor has any event occurred
which, with the giving of notice or the lapse of time, or both, would cause such
a default;
12.13 Financial Condition. The Prepared Financials fairly present
Borrowers' financial condition and results of operations and those of such other
Persons described therein as of the date thereof; there are no material
omissions from the Prepared Financials or other facts or circumstances not
reflected in the Prepared Financials; and there has been no material and adverse
change in such financial conditions or operations since the date of the initial
Prepared Financials delivered to Lender hereunder;
12.14 ERISA. None of any Borrower, any ERISA Affiliate, or any Plan is
or has been in violation of any of the provisions of ERISA, any of the
qualification requirements of IRC Section 401(a) or any of the published
interpretations thereunder, nor have any Borrower or any ERISA Affiliate
received any notice to such effect. No notice of intent to terminate a Plan has
been filed under Section 4041 of ERISA, nor has any Plan been terminated under
ERISA. The PBGC has not instituted proceedings to terminate, or appoint a
trustee to administer, a Plan. No lien upon the assets of any Borrower has
arisen with respect to a Plan. No prohibited transaction or Reportable Event has
occurred with respect to a Plan. Neither any Borrower nor any ERISA Affiliate
has incurred any withdrawal liability with respect to any Multiemployer Plan.
Each Borrower and each ERISA Affiliate have made all contributions required to
be made by them to any Plan or Multiemployer Plan when due. There is no
accumulated funding deficiency in any Plan, whether or not waived;
12.15 Taxes. Each Borrower has filed all tax returns and such other
reports as it is required by law to file and has paid or made adequate provision
for the payment on or prior to the date when due of all taxes, assessments and
similar charges that are due and payable;
12.16 Locations. Each Borrower's chief executive office and the offices
and locations where it keeps its respective property (including the Collateral)
(except for Inventory in transit) are at the locations set forth on the
Schedule, except to the extent that such locations may have been changed after
notice to Lender in accordance with Section 13.5 below;
12.17 Business Relationships. There exists no actual or threatened
termination, cancellation or limitation of, or any modification or change in,
the business relationship between a Borrower and any customer or any group of
customers whose purchases individually or in the aggregate are material to the
business of such Borrower, or with any material supplier, and there exists no
present condition or state of facts or circumstances which would materially and
adversely affect such Borrower or prevent such Borrower from conducting such
business after the consummation of the transactions contemplated by this
Agreement in substantially the same manner in which it has heretofore been
conducted;
12.18 Centercore Note. The outstanding principal balance of the
Centercore Note as of the date hereof is One Million Eight Hundred Twenty-Two
Thousand One Hundred Thirty-Six Dollars ($1,822,136). There are no defaults
under the Centercore Note and Centercore Group, Inc. has not asserted any
defense to the payment of the Centercore Note.
12.19 Reaffirmations. Each request for a loan made by a Borrower
pursuant to this Agreement shall constitute (i) an automatic representation and
warranty by such Borrower to Lender that there does not then exist any Event of
Default and (ii) a reaffirmation as of the date of said request of all of the
representations and warranties of such Borrower contained in this Agreement and
the other Loan Documents.
13. AFFIRMATIVE COVENANTS.
Each Borrower covenants that, so long as any Obligation remains
outstanding and this Agreement is in effect, it shall:
13.1 Expenses. Reimburse Lender for all costs, fees and expenses
incurred by Lender in connection with the negotiation, preparation, execution,
delivery, administration and enforcement of each of the Loan Documents,
including, but not limited to, the attorneys' and paralegals' fees of in-house
and outside counsel, lien, title search and insurance fees, appraisal fees, all
charges and expenses incurred in connection with any and all environmental
reports and environmental remediation activities, and all other costs, expenses,
taxes and filing or recording fees payable in connection with the transactions
contemplated by this Agreement including without limitation all such costs, fees
and expenses as Lender shall incur or for which Lender shall become obligated in
connection with (i) any inspection or verification of the Collateral, (ii) any
proceeding relating to the Loan Documents or the Collateral, (iii) actions taken
with respect to the Collateral and Lender's security interest therein,
including, without limitation, the defense or prosecution of any action
involving Lender and any Borrower or any third party, (iv) enforcement of any of
Lender's rights and remedies with respect to the Obligations or Collateral and
(v) consultation with Lender's attorneys and participation in any workout,
bankruptcy or other insolvency or other proceeding involving any Loan Party or
any Affiliate, whether or not suit is filed. Borrowers, shall also pay all
Lender charges in connection with bank wire transfers, forwarding of loan
proceeds, deposits of checks and other items of payment, returned checks,
establishment and maintenance of lock boxes and other blocked accounts, and all
other bank and administrative matters, in accordance with Lender's schedule of
bank and administrative fees and charges in effect from time to time. Borrowers'
obligations under this Section shall be joint and several.
13.2 Taxes. File all tax returns and pay or make adequate provision for
the payment of all taxes, assessments and other charges on or prior to the date
when due.
13.3 Notice of Litigation. Promptly notify Lender in writing of any
litigation, suit or administrative proceeding which may materially and adversely
affect the Collateral or a Borrower's business, assets, operations, prospects or
condition, financial or otherwise, whether or not the claim is covered by
insurance.
13.4 ERISA. Notify Lender in writing (i) promptly upon the occurrence
of any event described in Paragraph 4043 of ERISA, other than a termination,
partial termination or merger of a Plan or a transfer of a Plan's assets and
(ii) prior to any termination, partial termination or merger of a Plan or a
transfer of a Plan's assets.
13.5 Change in Location. Notify Lender in writing forty-five (45) days
prior to any change in the location of a Borrower's chief executive office or
the location of any property of a Borrower, or a Borrower's opening or closing
of any other place of business.
13.6 Corporate Existence. Maintain its corporate existence and its
qualification to do business and good standing in all states necessary for the
conduct of its business and the ownership of its property and maintain adequate
assets, licenses, patents, copyrights, trademarks and trade names for the
conduct of its business.
13.7 Labor Disputes. Promptly notify Lender in writing of any labor
dispute to which a Borrower is or may become subject and the expiration of any
labor contract to which a Borrower is a party or bound.
13.8 Violations of Law. Promptly notify Lender in writing of any
violation of any law, statute, regulation or ordinance of any governmental
entity, or of any agency thereof, applicable to a Borrower which may materially
and adversely affect the Collateral or a Borrower's business, assets, prospects,
operations or condition, financial or otherwise.
13.9 Defaults. Notify Lender in writing within five (5) Business Days
of a Borrower's default under any note, indenture, loan agreement, mortgage,
lease or other agreement to which a Borrower is a party or bound, or of any
other default under any Indebtedness of a Borrower.
13.10 Capital Expenditures. Promptly notify Lender in writing of the
making of any Capital Expenditure (i) which would result in the breach of the
Capital Expenditure covenant set forth in Section 13.14 or (ii) in excess of
Fifty Thousand Dollars ($50,000).
13.11 Books and Records. Keep adequate records and books of account
with respect to its business activities in which proper entries are made in
accordance with generally accepted accounting principles consistently applied,
reflecting all its financial transactions.
13.12 Leases; Warehouse Agreements. Provide Lender with (i) copies of
all agreements between a Borrower and any landlord or warehouseman which owns
any premises at which any Collateral may, from time to time, be located, and
(ii) in addition to all landlord and mortgagee waivers provided pursuant to
Section 2.1(i) above, additional landlord and mortgagee waivers in form
acceptable to Lender with respect to all locations where any Collateral is
hereafter located.
13.13 Additional Documents. At Lender's request, promptly execute or
cause to be executed and delivered to Lender any and all documents, instruments
and agreements deemed necessary by Lender to facilitate the collection of any
property of a Borrower pledged to Lender (including the Collateral) or otherwise
to give effect to or carry out the terms or intent of this Agreement or any of
the other Loan Documents. Without limiting the generality of the foregoing, if
any of the Receivables with a face value in excess of One Thousand Dollars
($1,000) arises out of a contract with the United States of America or any
department, agency, subdivision or instrumentality thereof, each Borrower shall
promptly notify Lender of such fact in writing and shall execute any instruments
and take any other action required or requested by Lender to comply with the
provisions of the Federal Assignment of Claims Act.
13.14 Financial Covenants. Comply with the financial covenant set forth
on the Schedule.
14. NEGATIVE COVENANTS.
Without Lender's prior written consent, which consent Lender may
withhold in its sole discretion, so long as any Obligation remains outstanding
and this Agreement is in effect, no Borrower shall: (a) Mergers. Merge or
consolidate with or acquire any other Person, or make any other material change
in its capital structure or in its business or operations which might adversely
affect the repayment of the Obligations; (b) Loans. Make advances, loans or
extensions of credit to, or invest in, any Person (except for travel-related
advances to employees of any Borrower not to exceed Ten Thousand Dollars
($10,000) in the aggregate at any time outstanding; (c) Dividends. Declare or
pay cash dividends upon any of its stock or distribute any of its property or
redeem, retire, purchase or acquire directly or indirectly any of its stock; (d)
Adverse Transactions. Enter into any transaction which materially and adversely
affects the Collateral or Borrowers' ability to repay the Obligations in full as
and when due; (e) Indebtedness of Others. Become directly or contingently liable
for the Indebtedness of any Person, except by endorsement of instruments for
deposit; (f) Repurchase. Make a sale to any customer on a xxxx-and-hold,
guaranteed sale, sale and return, sale on approval, consignment, or any other
repurchase or return basis; (g) Name. Use any corporate or fictitious name other
than its corporate name as set forth in its Articles or Certificate of
Incorporation on the date hereof; (h) Prepayment. Prepay any Indebtedness other
than trade payables and other than the Obligations; (i) Capital Expenditure.
Make or incur any Capital Expenditure if, after giving effect thereto, the
aggregate amount of all Capital Expenditures by Borrowers in any fiscal year
would exceed the amount set forth on the Schedule; (j) Indebtedness. Create,
incur, assume or permit to exist any Indebtedness (including Indebtedness in
connection with Capital Leases) except as set forth on the Schedule; (k)
Affiliate Transactions. Except as set forth below, sell, transfer, distribute or
pay any money or property to any Affiliate, or invest in (by capital
contribution or otherwise) or purchase or repurchase any stock or Indebtedness,
or any property, of any Affiliate, or become liable on any guaranty of the
indebtedness, dividends or other obligations of any Affiliate. Notwithstanding
the foregoing, Borrowers may pay compensation to employees who are Affiliates
and, if no Event of Default has occurred, Borrowers may engage in transactions
with Affiliates in the normal course of business, in amounts and upon terms
which are fully disclosed to Lender and which are no less favorable to Borrowers
than would be obtainable in a comparable arm's length transaction with a Person
who is not an Affiliate; (l) Nature of Business. Enter into any new business or
make any material change in any of a Borrower's business objectives, purposes
and operations; (m) Lender's Name. Use the name of Lender in connection with any
of a Borrower's business or activities, except in connection with internal
business matters or as required in dealings with governmental agencies and
financial institutions or with trade creditors of a Borrower, solely for credit
reference purposes; or (n) Margin Security. Own, purchase or acquire (or enter
into any contract to purchase or acquire) any "margin security" as defined by
any regulation of the Federal Reserve Board as now in effect or as the same may
hereafter be in effect.
15. ENVIRONMENTAL MATTERS.
15.1 Definitions. The following definitions apply to the provisions of
this Section 15: (i) The term "Applicable Law" shall include, but shall not be
limited to, each statute named or referred to in this Section 15.1 and all rules
and regulations thereunder, and any other local, state and/or federal laws,
rules, regulations and ordinances, whether currently in existence or hereafter
enacted, which govern, to the extent applicable to the Property or to a
Borrower, (a) the existence, cleanup and/or remedy of contamination on real
property; (b) the protection of the environment from soil, air or water
pollution, or from spilled, deposited or otherwise emplaced contamination; (c)
the emission or discharge of hazardous substances into the environment; (d) the
control of hazardous wastes; or (e) the use, generation, transport, treatment,
removal or recovery of Hazardous Substances. (ii) The term "Hazardous Substance"
shall mean (a) any oil, flammable substance, explosives, radioactive materials,
hazardous wastes or substances, toxic wastes or substances or any other wastes,
materials or pollutants which (i) pose a hazard to the Property or to persons on
or about the Property or (ii) cause the Property to be in violation of any
Applicable Law; (b) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contain
dielectric fluid containing levels of polychlorinated biphenyls, or radon gas;
(c) any chemical, material or substance defined as or included in the definition
of "hazardous substances," "waste," "hazardous wastes," "hazardous materials,"
"extremely hazardous waste," "restricted hazardous waste," or "toxic substances"
or words of similar import under any Applicable Law, including, but not limited
to, the Comprehensive Environmental Response, Compensation and Liability Act
("CERCLA"), 42 USC Sections 9601 et seq.; the Resource Conservation and Recovery
Act ("RCRA"), 42 USC Sections 6901 et seq.; the Hazardous Materials
Transportation Act, 49 USC Sections 1801 et seq.; and the Federal Water
Pollution Control Act, 33 USC Sections 1251 et seq.; (d) any other chemical,
material or substance, exposure to which is prohibited, limited or regulated by
any governmental authority which may or could pose a hazard to the health and
safety of the occupants of the Property or the owners and/or occupants of
property adjacent to or surrounding the Property, or any other person coming
upon the Property or adjacent property; and (e) any other chemical, materials or
substance which may or could pose a hazard to the environment. (iii) The term
"Property" shall mean all real property, wherever located, in which a Borrower
or any Affiliate of a Borrower has any right, title or interest, whether now
existing or hereafter arising, and including, without limitation, as owner,
lessor or lessee.
15.2 Covenants and Representations. Each Borrower represents and
warrants that there have not been during the period of a Borrower's possession
of any interest in the Property and, to the best of its knowledge after
reasonable inquiry, there have not been at any other times, any activities on
the Property involving, directly or indirectly, the use, generation, treatment,
storage or disposal of any Hazardous Substances except in compliance with
Applicable Law (a) under, on or in the land included in the Property, whether
contained in soil, tanks, sumps, ponds, lagoons, barrels, cans or other
containments, structures or equipment, (b) incorporated in the buildings,
structures or improvements included in the Property, including any building
material containing asbestos, or (c) used in connection with any operations on
or in the Property. Without limiting the generality of the foregoing and to the
extent not included within the scope of this Section 15.2, each Borrower
represents and warrants that each Borrower is in full compliance with Applicable
Law and has received no notice from any person or any governmental agency or
other entity of any violation by any Borrower or its Affiliates of any
Applicable Law. Borrowers shall be solely responsible for and agrees to
indemnify Lender, protect and defend with counsel reasonably acceptable to
Lender, and hold Lender harmless from and against any claims actions,
administrative proceedings, judgments, damages, punitive damages, penalties,
fines, costs, liabilities (including sums paid in settlements of claims),
interest or losses, attorneys' fees (including any fees and expenses incurred in
enforcing this indemnity), consultant fees, expert fees, and other out-of-pocket
costs or expenses actually incurred by Lender (collectively, the "Environmental
Costs"), that may, at any time or from time to time, arise directly or
indirectly from or in connection with: (a) the presence, suspected presence,
release or suspected release of any Hazardous Substance whether into the air,
soil, surface water or groundwater of or at the Property, or any other violation
of Applicable Law, or (b) any breach of the foregoing representations and
covenants; except to the extent any of the foregoing result from the actions of
Lender, its employees, agents and representatives. All Environmental Costs
incurred or advanced by Lender shall be deemed to be made by Lender in good
faith and shall constitute Obligations hereunder. Borrowers' obligations under
this section shall be joint and several.
16. TERM; TERMINATION.
16.1 Term. The initial term of this Agreement shall be as set forth on
the Schedule (the "Initial Term") and shall be automatically renewed for
successive periods of one (1) year (each, a "Renewal Term"), unless earlier
terminated as provided herein.
16.2 Prior Notice. Each party shall have the right to terminate this
Agreement at the end of the Initial Term or at the end of any Renewal Term by
giving the other parties written notice not less than sixty (60) days prior to
the effective date of such termination, by registered or certified mail.
16.3 Payment in Full. Upon the effective date of termination, the
Obligations shall become immediately due and payable in full in cash.
16.4 Early Termination; Termination Fee. In addition to the procedure
set forth in Section 16.2, Borrowers may terminate this Agreement at any time
upon sixty (60) days' prior written notice and prepay the Obligations. Upon any
such early termination by Borrowers or any termination of this Agreement by
Lender upon the occurrence of an Event of Default, then, and in any such event,
Borrowers shall pay to Lender upon the effective date of such termination a fee
(the "Termination Fee") in an amount equal to the amount shown on the Schedule.
Borrowers' obligations under this Section shall be joint and several.
17. DEFAULT.
17.1 Events of Default. Any one or more of the following events shall
constitute an Event of Default under this Agreement:
(i) A Borrower fails to pay when due and payable any portion of the
Obligations at stated maturity, upon acceleration or otherwise;
(ii) A Borrower or any other Loan Party fails or neglects to perform,
keep, or observe any Obligation including, but not limited to, any term,
provision, condition, covenant or agreement contained in any Loan Document to
which such Loan Party is a party;
(iii) Any material adverse change occurs in a Borrower's business,
assets, operations, prospects or condition, financial or otherwise;
(iv) The prospect of repayment of any portion of the Obligations or the
value or priority of Lender's security interest in the Collateral is materially
impaired;
(v) Any material portion of a Borrower's assets is seized, attached,
subjected to a writ or distress warrant, is levied upon or comes into the
possession of any judicial officer;
(vi) A Borrower shall generally not pay its debts as they become due or
shall enter into any agreement (whether written or oral), or offer to enter into
any agreement, with all or a significant number of its creditors regarding any
moratorium or other indulgence with respect to its debts or the participation of
such creditors or their representatives in the supervision, management or
control of the business of such Borrower;
(vii) Any bankruptcy or other insolvency proceeding is commenced by a
Borrower, or any such proceeding is commenced against a Borrower and remains
undischarged or unstayed for forty-five (45) days;
(viii) Any notice of lien, levy or assessment is filed of record with
respect to any of a Borrower's assets;
(ix) Any judgments are entered against a Borrower in an aggregate
amount exceeding Fifty Thousand Dollars ($50,000);
(x) Any default shall occur under any material agreement between a
Borrower and any third party including, without limitation, any default which
would result in a right by such third party to accelerate the maturity of any
Indebtedness of such Borrower to such third party;
(xi) Any representation or warranty made or deemed to be made by a
Borrower, any Affiliate or any other Loan Party in any Loan Document or any
other statement, document or report made or delivered to Lender in connection
therewith shall prove to have been misleading in any material respect;
(xii) Any Prohibited Transaction or Reportable Event shall occur with
respect to a Plan which could have a material adverse effect on the financial
condition of a Borrower; any lien upon the assets of a Borrower in connection
with any Plan shall arise; a Borrower or any of its ERISA Affiliates shall fail
to make full payment when due of all amounts which such Borrower or any of its
ERISA Affiliates may be required to pay to any Plan or any Multiemployer Plan as
one or more contributions thereto; a Borrower or any of its ERISA Affiliates
creates or permits the creation of any accumulated funding deficiency, whether
or not waived;
(xiii) Any transfer of any of the issued and outstanding shares of
common stock or other evidence of ownership of Maris or Airo;
(xiv) Either (a) Safeguard Scientifics (Delaware), Inc. and Xxxxxxxxx
X. Xxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxxx Xxxxxxxx (collectively, the
"Management Team") at any time collectively own less than fifty-one percent
(51%) of the issued and outstanding shares of common stock or other evidence of
ownership of Core, or (b) the Management Team at any time does not possess the
requisite votes to elect, or has not elected, a majority of the directors which
comprise the board of directors of Core; or
(xv) A default under the Centercore Note.
17.2 Remedies. Upon the occurrence of an Event of Default, Lender may,
at its option and in its sole discretion and in addition to all of its other
rights under the Loan Documents, terminate this Agreement and declare all of the
Obligations to be immediately payable in full. Lender shall also have all of its
rights and remedies under applicable law, including, without limitation, the
default rights and remedies of a secured party under the Code, and further,
Lender may, at any time, take possession of the Collateral and keep it on any
Borrower's premises, at no cost to Lender, or remove any part of it to such
other place(s) as Lender may desire or, upon Lender's demand, require a
Borrower, at such Borrower's sole cost, to assemble the Collateral and make it
available to Lender at a place reasonably convenient to Lender and Lender may
sell and deliver any Collateral at public or private sales, for cash, upon
credit or otherwise, at such prices and upon such terms as Lender deems
advisable, at Lender's discretion, and may, if Lender deems it reasonable,
postpone or adjourn any sale of the Collateral by an announcement at the time
and place of sale or of such postponed or adjourned sale without giving a new
notice of sale. Each Borrower agrees that Lender has no obligation to preserve
rights to the Collateral or xxxxxxxx any Collateral for the benefit of any
Person. Lender is hereby granted a license or other right to use, without
charge, each Borrower's labels, patents, copyrights, name, trade secrets, trade
names, trademarks and advertising matter, or any similar property, in completing
production, advertising or selling any Collateral and each Borrower's rights
under all licenses and all franchise agreements shall inure to Lender's benefit.
Any requirement of reasonable notice shall be met if such notice is mailed
postage prepaid to the applicable Borrower at its address set forth in the
heading to this Agreement at least five (5) days before sale or other
disposition. The proceeds of sale shall be applied, first, to all attorneys fees
and other expenses of sale, and second, to the Obligations in such order as
Lender shall elect, in its sole discretion. Lender shall return any excess to
Borrowers, and Borrowers shall remain, jointly and severally, liable for any
deficiency to the fullest extent permitted by law. Without limiting any of
Lender's rights and remedies hereunder, upon the occurrence of an Event of
Default, Lender may draw upon the Letter of Credit and apply the proceeds
thereof to the Obligations in such order and manner as Lender shall elect.
17.3 Standards for Determining Commercial Reasonableness. Each Borrower
and Lender agree that the following conduct by Lender with respect to any
disposition of Collateral shall conclusively be deemed commercially reasonable
(but other conduct by Lender, including, but not limited to, Lender's use in its
sole discretion of other or different times, places and manners of noticing and
conducting any disposition of Collateral shall not be deemed unreasonable): Any
public or private disposition as to which on no later than the fifth calendar
day prior thereto written notice thereof is mailed or personally delivered to
the applicable Borrower and, with respect to any public disposition, on no later
than the fifth calendar day prior thereto notice thereof describing in general
non-specific terms, the Collateral to be disposed of is published once in a
newspaper of general circulation in the county where the sale is to be
conducted, at any place designated by Lender, with or without the Collateral
being present, and which commences at any time between 8:00 a.m. and 5:00 p.m.
(provided that no notice of any public or private disposition need be given to
the applicable Borrower if the Collateral is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market).
Without limiting the generality of the foregoing, each Borrower expressly agrees
that, with respect to any disposition of accounts, instruments and general
intangibles, it shall be commercially reasonable for Lender to direct any
prospective purchaser thereof to ascertain directly from such Borrower any and
all information concerning the same, including, but not limited to, the terms of
payment, aging and delinquency, if any, the financial condition of any obligor
or account debtor thereon or guarantor thereof, and any collateral therefor.
18. DEFINITIONS.
18.1 Defined Terms. As used in this Agreement, the following terms have
the definitions set forth below:
"Affiliate" means any Person controlling, controlled by or under common control
with a Borrower. For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct or cause direction of
the management and policies of a Borrower, whether through ownership of common
or preferred stock or other equity interests, by contract or otherwise. Without
limiting the generality of the foregoing, each of the following shall be an
Affiliate: any officer, director, employee or other agent of a Borrower, any
shareholder of greater than ten percent (10%) of the issued and outstanding
shares of capital stock of a Borrower or subsidiary of a Borrower, and any other
Person with whom or which a Borrower has common shareholders, officers or
directors.
"Business Day" means any day on which commercial banks in both Los Angeles,
California and Phoenix, Arizona are open for business.
"Capital Expenditures" means all expenditures made and liabilities incurred for
the acquisition of any fixed asset or improvement, replacement, substitution or
addition thereto which has a useful life of more than one (1) year and
including, without limitation, those arising in connection with Capital Leases.
"Capital Lease" means any lease of property by a Borrower that, in accordance
with generally accepted accounting principles, should be capitalized for
financial reporting purposes and reflected as a liability on the balance sheet
of such Borrower.
"Centercore Note" means that certain Promissory Note dated as of October 20,
1995 issued by Centercore Group, Inc. to Core in the original principal amount
of One Million Nine Hundred Sixty-Two Thousand
Three Hundred Dollars ($1,962,300).
"Closing" means the initial advance made by Lender pursuant to this Agreement.
"Closing Date" means the date of the Closing.
"Code" means the Uniform Commercial Code as adopted, amended, and in effect in
the State of Arizona from time to time.
"Collateral" has the meaning set forth in Section 4.1 above.
"Collateral Assignment" means that certain Collateral Assignment of Trademarks,
Licenses and Patents and Security Agreement, of even date herewith, between
Airo and Lender.
"Deposit Accounts" has the meaning set forth in Section 47-9105 of the Code.
"Eligible Inventory" means Inventory which Lender, in its sole judgment, deems
Eligible Inventory, based on such considerations as Lender may from time to time
deem appropriate. Without limiting the generality of the foregoing, no Inventory
shall be Eligible Inventory unless, in Lender's sole judgment, such Inventory
(i) is owned by Airo, (ii) consists of raw materials in good, new and salable
condition which are not obsolete or unmerchantable, are not comprised of work in
process or packaging, materials or supplies, are not items returned under
warranty or subassemblies, are not slow-moving or held on consignment, and are
not proprietary in nature (i.e. Ultraguard covers); (ii) meets all standards
imposed by any governmental agency or authority; (iv) conforms in all respects
to the warranties and representations set forth herein; (v) is at all times
subject to Lender's duly perfected, first priority security interest; and (vi)
is situated at 000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx 00000.
"Eligible Receivables" means Receivables which Lender, in its sole judgment,
shall deem eligible based on such considerations as Lender may from time to time
deem appropriate. Without limiting the foregoing, a Receivable shall not be
deemed to be an Eligible Receivable if (i) the account debtor has failed to pay
the Receivable within a period of ninety (90) days after invoice date, to the
extent of any amount remaining unpaid after such period; (ii) the account debtor
has failed to pay more than fifty percent (50%) of all outstanding Receivables
owed by it to any Borrower within ninety (90) days after invoice date excluding
retainage; (iii) the account debtor is an Affiliate of any Borrower; (iv) the
goods relating thereto are placed on consignment, guaranteed sale, "xxxx and
hold" or other terms pursuant to which payment by the account debtor may be
conditional; (v) the account debtor is not located in the United States or
Canada, unless the Receivable is supported by a letter of credit or other form
of guaranty or security, in each case in form and substance satisfactory to
Lender; (vi) the account debtor is the United States or any department, agency
or instrumentality thereof; (vii) the account debtor is any State, city or
municipality of the United States and the amount thereof exceeds Fifty Thousand
Dollars ($50,000); (viii) a Borrower is or may become liable to the account
debtor; (ix) the account debtor's total obligations to Borrowers exceed fifteen
percent (15%) of all Eligible Receivables, to the extent of such excess
(percentages which exceed fifteen percent (15%) shall be subject to Lender's
approval); (x) the account debtor disputes liability or makes any claim with
respect thereto (up to the amount of such liability or claim), or is subject to
any insolvency or bankruptcy proceeding, or becomes insolvent, fails or goes out
of a material portion of its business; (xi) the amount thereof consists of late
charges or finance charges; (xii) the amount thereof consists of credit balances
more than ninety (90) days past invoice date, but only to the extent such
amounts consist of credit balances more than ninety (90) days past invoice date;
(xiii) the Receivable is evidenced by an instrument or chattel paper unless such
instrument or chattel paper is delivered to Lender; (xiv) the face amount
thereof exceeds One Hundred Thousand Dollars ($100,000), unless accompanied by
evidence of shipment of the goods relating thereto satisfactory to Lender in its
sole discretion; (xv) the Receivable represents a customer deposit; (xvii) the
Receivable is a billing for retainage withheld; (xviii) the Receivable
represents amounts billed for service or maintenance contracts; or (xix) the
Receivable pertains to a job which is bonded.
"Equipment" means all of each Borrower's present and hereafter acquired
machinery, molds, machine tools, motors, furniture, equipment, furnishings,
fixtures, trade fixtures, motor vehicles, tools, parts, dyes, jigs, goods and
other tangible personal property (other than Inventory) of every kind and
description used in such Borrower's operations or owned by such Borrower and any
interest in any of the foregoing, and all attachments, accessories, accessions,
replacements, substitutions, additions and improvements to any of the foregoing,
wherever located.
"ERISA" means the Employment Retirement Income Security Act of 1974, as amended,
and the regulations thereunder.
"ERISA Affiliate" means each trade or business (whether or not incorporated and
whether or not foreign) which is or may hereafter become a member of a group of
which a Borrower is a member and which is treated as a single employer under
ERISA Section 4001(b)(1), or IRC Section 414.
"Event of Default" means any of the events set forth in Section 17.1 of this
Agreement.
"General Intangibles" means all general intangibles of each Borrower, whether
now owned or hereafter created or acquired by such Borrower, including, without
limitation, all choses in action, causes of action, corporate or other business
records, Deposit Accounts, inventions, designs, drawings, blueprints, patents,
patent applications, trademarks and the goodwill of the business symbolized
thereby, names, trade names, trade secrets, goodwill, copyrights, registrations,
licenses, franchises, customer lists, security and other deposits, rights in all
litigation presently or hereafter pending for any cause or claim (whether in
contract, tort or otherwise), and all judgments now or hereafter arising
therefrom, all claims of such Borrower against Lender, rights to purchase or
sell real or personal property, rights as a licensor or licensee of any kind,
royalties, telephone numbers, proprietary information, purchase orders, and all
insurance policies and claims (including without limitation credit, liability,
property and other insurance) tax refunds and claims, computer programs, discs,
tapes and tape files, claims under guaranties, security interests or other
security held by or granted to such Borrower to secure payment of any of the
Receivables by an account debtor, all rights to indemnification and all other
intangible property of every kind and nature (other than Receivables).
"Indebtedness" means all of each Borrower's present and future obligations,
liabilities, debts, claims and indebtedness, contingent, fixed or otherwise,
however evidenced, created, incurred, acquired, owing or arising, whether under
written or oral agreement, operation of law or otherwise, and includes, without
limiting the foregoing (i) the Obligations, (ii) obligations and liabilities of
any Person secured by a lien, claim, encumbrance or security interest upon
property owned by such Borrower, even though such Borrower has not assumed or
become liable therefor, (iii) obligations and liabilities created or arising
under any lease (including Capital Leases) or conditional sales contract or
other title retention agreement with respect to property used or acquired by
such Borrower, even though the rights and remedies of the lessor, seller or
lender are limited to repossession, (iv) all unfunded pension fund obligations
and liabilities and (v) deferred taxes.
"Initial Term" has the meaning set forth on the Schedule.
"Inventory" means all of each Borrower's now owned and hereafter acquired goods,
merchandise and other personal property, wherever located, to be furnished under
any contract of service or held for sale or lease, all raw materials, work in
process, finished goods and materials and supplies of any kind, nature or
description which are or might be used or consumed in such Borrower's business
or used in connection with the manufacture, packing, shipping, advertising,
selling or finishing of such goods, merchandise and other personal property, and
all documents of title or other documents representing them.
"Inventory Loans" has the meaning set forth on the Schedule.
"IRC" means the Internal Revenue Code of 1986, as amended, and the regulations
thereunder.
"Letter of Credit" means that certain Letter of Credit issued by PNC Bank in the
amount of Four Million Five Hundred Thousand Dollars ($4,500,000) for the
account of Subordinating Creditor in favor of Lender.
"Loan Documents" means, collectively, this Agreement, the Collateral Assignment,
the Subordination Agreement, any note or notes executed by any Borrower and
payable to Lender, and any other agreement entered into in connection with this
Agreement, such security agreements, intellectual property assignments and
mortgages as Lender may require with respect to this Agreement or the Guaranty,
together with all alterations, amendments, changes, extensions, modifications,
refinancings, refundings, renewals, replacements, restatements, or supplements,
of or to any of the foregoing.
"Loan Party" means each Borrower and each other party (other than Lender) to any
Loan Document.
"Multiemployer Plan" means a "multiemployer plan" as defined in ERISA Sections
3(37) or 4001(a)(3) or IRC Section 414(f) which covers employees of a Borrower
or any ERISA Affiliate.
"Obligations" means all present and future loans, advances, debts, liabilities,
obligations, covenants, duties and indebtedness at any time owing by a Borrower
to Lender, whether evidenced by this Agreement any note or other instrument or
document, whether arising from an extension of credit, opening of a letter of
credit, banker's acceptance, loan, guaranty, indemnification or otherwise,
whether direct or indirect (including, without limitation, those acquired by
assignment and any participation by Lender in such Borrower's debts owing to
others), absolute or contingent, due or to become due, including, without
limitation, all interest, charges, expenses, fees, attorney's fees and any other
sums chargeable to such Borrower hereunder or under any other agreement with
Lender.
"Operating Cash Flow" means, for any period, Borrowers' consolidated net income
or loss (excluding the effect of any extraordinary gains or losses from sales of
property not in the ordinary course of business), determined in accordance with
generally accepted accounting principles, plus each of the following items
(determined on a consolidated basis) to the extent deducted from the revenues of
Borrowers in the calculation of net income or loss: (i) depreciation; (ii)
amortization; and (iii) interest expense, paid or accrued; less all actual
Capital Expenditures made during such period.
"Overlines" has the meaning set forth in Section 1.3.
"PBGC" means the Pension Benefit Guarantee Corporation.
"Permitted Encumbrance" means each of the liens, mortgages and other security
interests set forth on the Schedule and incorporated herein by this reference.
"Person" means any individual, sole proprietorship, partnership, joint venture,
trust, unincorporated organization, association, corporation, government, or any
agency or political division thereof, or any other entity.
"Plan" means any plan described in ERISA Section 3(2) maintained for employees
of any Borrower or any ERISA Affiliate, other than a Multiemployer Plan.
"Prepared Financials" means the balance sheets of Borrowers as of the date set
forth in the Schedule, and as of each subsequent date on which audited balance
sheets are delivered to Lender from time to time hereunder, and the related
statements of operations, changes in stockholder's equity and changes in cash
flow for the periods ended on such dates.
"Prohibited Transaction" means any transaction described in Section 406 of ERISA
which is not exempt by reason of Section 408 of ERISA, and any transaction
described in Section 4975(c) of the IRC which is not exempt by reason of Section
4975(c)(2) of the IRC.
"Receivable Loans" has the meaning set forth on the Schedule.
"Receivables" means all of each Borrower's now owned and hereafter acquired
accounts (whether or not earned by performance), proceeds of any letters of
credit naming such Borrower as beneficiary, contract rights, chattel paper,
instruments, documents and all other forms of obligations at any time owing to
such Borrower, all guaranties and other security therefor, whether secured or
unsecured, all merchandise returned to or repossessed by such Borrower, and all
rights of stoppage in transit and all other rights or remedies of an unpaid
vendor, lienor or secured party.
"Renewal Term" has the meaning set forth on the Schedule.
"Reportable Event" means a reportable event described in Section 4043 of ERISA
or the regulations thereunder, a withdrawal from a Plan described in Section
4063 of ERISA, or a cessation of operations described in Section 4068(f) of
ERISA.
"Subordinated Debt" means liabilities of a Borrower the repayment of which is
subordinated, to the payment and performance of the Obligations, pursuant to a
subordination agreement on Lender's standard form.
"Subordinating Creditor" means the persons set forth on the Schedule.
"Subordination Agreement" means the Subordination Agreement dated March ___,
1997, by and between the Subordinating Creditor and Lender, as such
Subordination Agreement may be amended, supplemented or otherwise modified from
time to time.
"Total Contractual Debt Service" means, for any period, the sum of payments made
or required to be made by any Borrower during such period for interest and
scheduled principal payments due on the Indebtedness.
"Total Facility" has the meaning set forth on the Schedule.
"Trademarks, Licenses and Patents" means all of each Borrower's right, title and
interest in and to: (i) trademarks, trademark registrations, trade names, trade
name registrations, and trademark or trade name applications, including without
limitation such as are listed on the Schedule, attached hereto and made a part
hereof, as the same may be amended from time to time, and (a) renewals thereof,
(b) all income, royalties, damages and payments now and hereafter due and/or
payable with respect thereto, including, without limitation, damages and
payments for past or future infringements thereof, (c) the right to xxx for
past, present and future infringements thereof, (d) all rights corresponding
thereto throughout the world, and (e) the goodwill of the business operated by
Assignor connected with and symbolized by any trademarks or trade names; (ii)
license agreements, including without limitation such as are listed on the
Schedule attached hereto and made a part hereof, and the right to prepare for
sale, sell, and advertise for sale any Inventory now or hereafter owned by
Assignor and now or hereafter covered by such licenses; and (iii) patents and
patent applications, registered or pending, including without limitation such as
are listed on the Schedule, attached hereto, together with all income,
royalties, shop rights, damages and payments thereto, the right to xxx for
infringements thereof, and all rights thereto throughout the world and all
reissues, divisions, continuations, renewals, extensions and
continuations-in-part thereof, and the goodwill of the business connected with
the use of and symbolized by such patents.
18.2 Other Terms. All accounting terms used in this Agreement, unless
otherwise indicated, shall have the meanings given to such terms in accordance
with generally accepted accounting principles, consistently applied. All other
terms contained in this Agreement, unless otherwise indicated, shall have the
meanings provided by the Code, to the extent such terms are defined therein.
19. MISCELLANEOUS.
19.1 Recourse to Security; Certain Waivers. All Obligations shall be
payable by each Borrower as provided for herein and, in full, at the termination
of this Agreement; recourse to security will not be required at any time. Each
Borrower waives presentment and protest of any instrument and notice thereof,
notice of default and, to the extent permitted by applicable law, all other
notices to which such Borrower might otherwise be entitled.
19.2 No Waiver by Lender. Lender's failure to exercise any right,
remedy or option under this Agreement or any supplement or other agreement
between Lender and Borrowers or delay by Lender in exercising the same will not
operate as a waiver. No waiver by Lender will be effective unless in writing and
then only to the extent stated. No waiver by Lender shall affect its right to
require strict performance of this Agreement. Lender's rights and remedies will
be cumulative and not exclusive.
19.3 Binding on Successor and Assigns. All terms, conditions, promises,
covenants, provisions and warranties shall inure to the benefit of and bind
Lender's and Borrowers' respective representatives, successors and assigns.
19.4 Severability. If any provision of this Agreement shall be
prohibited or invalid under applicable law, it shall be ineffective only to such
extent, without invalidating the remainder of this Agreement.
19.5 Amendments; Assignments. This Agreement may not be modified,
altered or amended, except by an agreement in writing signed by each Borrower
and Lender. No Borrower may sell, assign or transfer any interest in this
Agreement or any other Loan Document, or any portion thereof, including, without
limitation, any of such Borrower's rights, title, interests, remedies, powers
and duties hereunder or thereunder. Each Borrower hereby consents to Lender's
participation, sale, assignment, transfer or other disposition, at any time or
times hereafter, of this Agreement and any of the other Loan Documents, or of
any portion hereof or thereof, including, without limitation, Lender's rights,
title, interests, remedies, powers and duties hereunder or thereunder. In
connection therewith, Lender may disclose all documents and information which
Lender now or hereafter may have relating to any Borrower or any Borrower's
business. To the extent that Lender assigns its rights and obligations hereunder
to a third party, Lender shall thereafter be released from such assigned
obligations to any Borrower and such assignment shall effect a novation between
such Borrower and such third party.
19.6 Integration. This Agreement, together with the Schedule (which is
a part hereof) and the other Loan Documents, reflect the entire understanding of
the parties with respect to the transactions contemplated hereby.
19.7 Governing Law; Waivers. THIS AGREEMENT SHALL BE DEEMED TO HAVE
BEEN MADE IN THE STATE OF ARIZONA AND SHALL BE INTERPRETED IN ACCORDANCE WITH
THE INTERNAL LAWS OF ARIZONA AND NOT THE CONFLICT OF LAWS RULES OF THE STATE OF
ARIZONA GOVERNING CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. EACH
BORROWER HEREBY AGREES TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF MARICOPA, STATE OF ARIZONA OR, AT THE SOLE
OPTION OF LENDER, IN ANY OTHER COURT IN WHICH LENDER SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER
IN CONTROVERSY. EACH BORROWER WAIVES ANY OBJECTION OF FORUM NON CONVENIENS AND
VENUE. EACH BORROWER FURTHER WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON
IT, AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS BE MADE IN THE MANNER SET
FORTH IN SECTION 19.13 HEREOF FOR THE GIVING OF NOTICE.
19.8 Survival. All of the representations and warranties of each
Borrower contained in this Agreement shall survive the execution, delivery and
acceptance thereof by the parties. No termination of this Agreement or of any
guaranty of the Obligations shall affect or impair the powers, obligations,
duties, rights, representations, warranties or liabilities of the parties hereto
and all shall survive such termination.
19.9 Evidence of Obligations. Each Obligation may, in Lender's
discretion, be evidenced by notes or other instruments issued or made by
Borrowers, or any of them, to Lender. If not so evidenced, such Obligation shall
be evidenced solely by entries upon Lender's books and records.
19.10 Collateral Security. The Obligations shall constitute one loan
secured by the Collateral. Lender may, in its sole discretion, (i) exchange,
enforce, waive or release any of the Collateral, (ii) apply Collateral and
direct the order or manner of sale thereof as it may determine and (iii) settle,
compromise, collect or otherwise liquidate any Collateral in any manner without
affecting its right to take any other action with respect to any other
Collateral.
19.11 Application of Collateral. Lender shall have the continuing and
exclusive right to apply or reverse and re-apply any and all payments to any
portion of the Obligations. To the extent that any Borrower makes a payment or
Lender receives any payment or proceeds of the Collateral for any Borrower's
benefit which is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, debtor in
possession, receiver or any other party under any bankruptcy law, common law or
equitable cause, then, to such extent, the Obligations or part thereof intended
to be satisfied shall be revived and continue as if such payment or proceeds had
not been received by Lender.
19.12 Loan Requests. Each oral or written request for a loan by any
Person who purports to be any employee, officer or authorized agent of any
Borrower shall be made to Lender on or prior to 11:00 a.m., Philadelphia time,
on the Business Day on which the proceeds thereof are requested to be paid to
such Borrower and shall be conclusively presumed to be made by a Person
authorized by such Borrower to do so and the crediting of a loan to such
Borrower's operating account shall conclusively establish Borrowers' obligation
to repay such loan. Unless and until Borrowers otherwise direct Lender in
writing, all loans shall be wired to Borrowers' operating account set forth on
the Schedule.
19.13 Notices. Any notice required hereunder shall be in writing and
addressed to the Borrowers (and Borrowers' legal counsel at Xxxxxx Xxxxxx, P.C.,
Suite 2000, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention:
Xxxx X. Xxxxxxx, Esq.) and Lender at their addresses set forth at the beginning
of this Agreement. Notices hereunder shall be deemed received on the earlier of
receipt, whether by mail, personal delivery, facsimile, or otherwise, or three
(3) days after deposit in the United States mail, postage prepaid.
19.14 Brokerage Fees. Each Borrower represents and warrants to Lender
that, with respect to the financing transaction herein contemplated, no Person
is entitled to any brokerage fee or other commission and each Borrower agrees to
indemnify and hold Lender harmless against any and all such claims.
19.15 Disclosure. No representation or warranty made by any Borrower in
this Agreement, or in any financial statement, report, certificate or any other
document furnished in connection herewith contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements herein or therein not misleading. There is no fact known to any
Borrower or which reasonably should be known to any Borrower which any Borrower
has not disclosed to Lender in writing with respect to the transactions
contemplated by this Agreement which materially and adversely affects the
business, assets, operations, prospects or condition (financial or otherwise),
of any Borrower.
19.16 Publicity. Lender is hereby authorized to issue appropriate press
releases and to cause a tombstone to be published announcing the consummation of
this transaction and the aggregate amount thereof.
19.17 Captions. The Section titles contained in this Agreement are
without substantive meaning and are not part of this Agreement.
19.18 Injunctive Relief. Each Borrower recognizes that, in the event
any Borrower fails to perform, observe or discharge any of its Obligations under
this Agreement, any remedy at law may prove to be inadequate relief to Lender.
Therefore, Lender, if it so requests, shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages.
19.19 Counterparts. This Agreement may be executed in one or more
counterparts, each of which taken together shall constitute one and the same
instrument.
19.20 Construction. The parties acknowledge that each party and its
counsel have reviewed this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments
or exhibits hereto.
19.21 Time of Essence. Time is of the essence for the performance by
Borrowers of the Obligations set forth in this Agreement.
19.22 Limitation of Actions. Each Borrower agrees that any claim or
cause of action by such Borrower against Lender, or any of Lender's directors,
officers, employees, agents, accountants or attorneys, based upon, arising from,
or relating to this Agreement, or any other present or future agreement, or any
other transaction contemplated hereby or thereby or relating hereto or thereto,
or any other matter, cause or thing whatsoever, whether or not relating hereto
or thereto, occurred, done, omitted or suffered to be done by Lender, or by
Lender's directors, officers, employees, agents, accountants or attorneys,
whether sounding in contract or in tort or otherwise, shall be barred unless
asserted by such Borrower by the commencement of an action or proceeding in a
court of competent jurisdiction by the filing of a complaint within one (1) year
after the first act, occurrence or omission upon which such claim or cause of
action, or any part thereof, is based and service of a summons and complaint on
an officer of Lender or any other person authorized to accept service of process
on behalf of Lender, within thirty (30) days thereafter. Each Borrower agrees
that such one (1) year period of time is a reasonable and sufficient time for a
Borrower to investigate and act upon any such claim or cause of action. The one
(1) year period provided herein shall not be waived, tolled, or extended except
by a specific written agreement of Lender. This provision shall survive any
termination of this Loan Agreement or any other agreement.
19.23 Liability. Neither Lender nor any Lender Affiliate shall be
liable for any indirect, special, incidental or consequential damages in
connection with any breach of contract, tort or other wrong relating to this
Agreement or the Obligations or the establishment, administration or collection
thereof (including without limitation damages for loss of profits, business
interruption, and the like), whether such damages are foreseeable or
unforeseeable, even if Lender has been advised of the possibility of such
damages. Neither Lender, nor any Lender Affiliate shall be liable for any
claims, demands, losses or damages, of any kind whatsoever, made, claimed,
incurred or suffered by the any Borrower through the ordinary negligence of
Lender, or any Lender Affiliate. "Lender Affiliate" shall mean Lender's
directors, officers, employees, agents, attorneys and any other person or entity
affiliated with or representing Lender.
19.24 Notice of Breach by Lender. Each Borrower agrees to give Lender
written notice of (i) any action or inaction by Lender or any attorney of Lender
in connection with any Loan Documents that may be actionable against Lender or
any attorney of Lender or (ii) any defense to the payment of the Obligations for
any reason, including, but not limited to, commission of a tort or violation of
any contractual duty or duty implied by law. Each Borrower agrees that unless
such notice is fully given as promptly as possible (and in any event within
thirty (30) days) after such Borrower has knowledge, or with the exercise of
reasonable diligence should have had knowledge, of any such action, inaction or
defense, such Borrower shall not assert, and such Borrower shall be deemed to
have waived, any claim or defense arising therefrom.
19.25 Application of Insurance Proceeds. The net proceeds of any
casualty insurance insuring the Collateral, after deducting all costs and
expenses (including attorneys' fees) of collection, shall be applied, at
Lender's option, either toward replacing or restoring the Collateral, in a
manner and on terms satisfactory to Lender, or toward payment of the
Obligations. Any proceeds applied to the payment of Obligations shall be applied
in such manner as Lender may elect. In no event shall such application relieve
any Borrower from payment in full of all installments of principal and interest
which thereafter become due in the order of maturity thereof.
19.26 MUTUAL WAIVER OF RIGHT TO JURY TRIAL. LENDER AND EACH BORROWER
EACH HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS AGREEMENT; OR (ii) ANY
OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT AMONG LENDER AND BORROWERS, OR
ANY OF THEM; OR (iii) ANY CONDUCT, ACTS OR OMISSIONS OF LENDER OR ANY BORROWER
OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER
PERSONS AFFILIATED WITH LENDER OR ANY BORROWER; IN EACH OF THE FOREGOING CASES,
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
Borrowers:
CORE TECHNOLOGIES (PENNSYLVANIA), INC.
By____________________________________
Title_________________________________
Federal Tax I.D. No. 00-000-0000
MARIS EQUIPMENT CO., INC.
By____________________________________
Title_________________________________
Federal Tax I.D. No. 00-000-0000
AIRO CLEAN, INC.
By____________________________________
Title_________________________________
Federal Tax I.D. No. 00-000-0000
Lender:
FINOVA CAPITAL CORPORATION
By____________________________________
Title_________________________________
