Exhibit 10.1
XXXXXXXXX & XXXXXXXXX, INC.
Financing Agreement
AGREEMENT dated November 11, 2004 between ALLIANCE DISTRIBUTORS HOLDING, INC.
("Borrower"), a corporation duly organized and presently existing in good
standing under the laws of the State of New York whose chief executive office is
at 00-00 000xx Xxxxxx, Xxxxxxx Xxxxx, XX, and XXXXXXXXX & XXXXXXXXX, INC.
("Lender"), a New York corporation with an address at 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
Borrower desires to continue to obtain loans and other financial
accommodations from Lender on a revolving basis upon the security of the
"Collateral" as herein defined and accordingly the Factoring Agreement between
Borrower and Lender, dated December 9, 2003 is hereby amended and restated in
its entirety as follows:
Section 1 DEFINITIONS
As used in this Agreement, these terms shall have the following meanings
which shall be applicable to both the singular and plural forms of such terms.
1.1 "Account Debtor" shall mean the account debtor with respect to a
Receivable and any other person who is obligated on such Receivable.
1.2 "Affiliate" of a party shall mean any entity controlling, controlled
by, or under common control with, the party, and the term "controlling" and such
variations thereof shall mean ownership of a majority of the voting power of a
party.
1.3 "Business Day" shall mean a day on which Lender and major banks in New
York City are open for the regular transaction of business.
1.4 "Collateral" shall have the meaning given in Section 4.1 hereof.
1.5 "Default" shall have the meaning provided in Section 8.1 hereof.
1.6 "Effective Rate" shall have the meaning provided in Section 3.1
hereof.
1.7 "Eligible Inventory" shall mean Inventory owned by Borrower in the
regular course of its business which is and at all times shall continue to be
acceptable to Lender in all respects. Standards of eligibility may be fixed and
revised from time to time solely by Lender in its exclusive judgment. In
determining eligibility, Lender may, but need not, rely on certificates of
inventory and reports furnished by Borrower, but reliance thereon by Lender from
time to time shall not be deemed to limit Lender's right to revise standards of
eligibility at any time. In general, Inventory shall not be deemed eligible
unless it complies in all respects with the representations, covenants and
warranties hereinafter set forth, made by Borrower with respect thereto. Without
limiting the generality of the foregoing, Inventory consisting of game software
supplied by a particular vendor shall not be eligible if (i) such software, or
other software then in Borrower's inventory acquired from the same vendor, was
acquired by Borrower on payment terms other than cash on delivery or cash before
delivery; (ii) the purchase order or contract of sale under which Borrower
acquired such software contains restrictions on Borrower's right to resell such
software; and (iii) the vendor of such software is unwilling to enter into an
agreement, in form satisfactory to Lender, allowing Lender to dispose of such
Inventory following a Default.
1.8 "Eligible Receivables" shall mean Receivables created by Borrower in
the regular course of its business which are and at all times shall continue to
be acceptable to Lender in all respects. Standards of eligibility may be fixed
and revised from time to time solely by Lender in its exclusive judgment. In
determining eligibility Lender may, but need not, rely on ageings, reports and
schedules of Receivables furnished by Borrower, but reliance thereon by Lender
from time to time shall not be deemed to limit Lender's right to revise
standards of eligibility at any time. In general, a Receivable shall not be
deemed eligible unless the Account Debtor on such Receivable is and at all times
continues to be acceptable to Lender and unless each Receivable complies in all
respects with the representations, covenants and warranties hereinafter set
forth.
1.9 "Equipment" means all of Borrower's machinery, equipment and other
assets described in the Security Agreement of even date executed by Borrower in
favor of Lender.
1.10 "GAAP" shall mean generally accepted accounting principles in the
United States of America as in effect from time to time as set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the elements and pronouncements of
the Financial Accounting Standards Board which are applicable to the
circumstances as of the date of determination consistently applied.
1.11 "Inventory" shall mean Inventory as defined in the Inventory Security
Agreement executed by Borrower in favor of Lender.
1.12 "Inventory Availability" shall have the meaning given in Section 2.1
hereof.
1.13 "Loan Account" shall mean the Loan Account as described in Section
2.1 hereof.
1.14 "Margin" shall mean two percent (2%) per annum.
1.15 "Maximum Credit Facility" shall mean $5,000,000
1.16 "Maximum Inventory Loan" shall mean $2,500,000
1.17 "Maximum Rate" shall have the meaning provided in Section 9.2 hereof.
1.18 "Net Amount of Eligible Receivables" shall mean the gross amount of
Eligible Receivables less sales, excise or similar taxes, returns, discounts,
claims, credits and allowances of any nature at any time issued, owing, granted,
outstanding or claimed, and less (without duplication) all amounts payable by
any Account Debtor on Eligible Receivables if any Eligible Receivable of such
Account Debtor is unpaid more than ninety (90) days following its invoice date.
1.19 "Obligations" shall mean all obligations, liabilities and
indebtedness of Borrower to Lender or an Affiliate of Lender, however evidenced,
arising under this Agreement, under any other or supplemental financing provided
to Borrower by Lender or an Affiliate of Lender, or independent hereof or
thereof, whether now existing or incurred from time to time hereafter and
whether before or after termination hereof, absolute or contingent, joint or
several, matured or unmatured, direct or indirect, primary or secondary,
liquidated or unliquidated, and whether arising directly or acquired from others
(whether acquired outright, by assignment unconditionally or as collateral
security from another and including, without limitation, participations or
interest of Lender in obligations of Borrower to others), and including (without
limitation) all of Lender's charges, commissions, fees, interest, expenses,
costs and attorneys' fees chargeable to Borrower in connection therewith.
1.20 "Over-advance" shall mean any portion of all loans and advances which
on any day exceeds the sum of the Receivable Availability and the Inventory
Availability.
1.21 "Permitted Liens" means the liens described on the attached Schedule
A.
1.22 "Person" shall mean any person, firm, corporation, partnership,
limited liability company, association, company, trust, estate, custodian,
nominee or other individual or entity.
1.23 "Prime Rate" shall mean the prime rate from time to time publicly
announced in New York City by JPMorgan Chase Bank.
1.24 "Receivable Availability" shall have the meaning given in Section 2.1
hereof.
1.25 "Receivables" shall mean all obligations to Borrower for the payment
of money arising out of the sale of goods or the rendering of services by
Borrower, now existing or hereafter arising, however evidenced, including
without limitation all accounts, contract rights, general intangibles,
documents, chattel paper and instruments (as each of such terms is defined in
the New York Uniform Commercial Code).
1.26 "Receivables Advance Percentage" shall mean the Receivables Advance
Percentage as specified in Section 2.1 hereof.
Section 2 LOANS
2.1 Lender shall, in its discretion, make loans to Borrower from time to
time, at Borrower's request, which loans in the aggregate shall not exceed the
lesser of (i) the sum of the Receivable Availability and the Inventory
Availability; or (ii) the Maximum Credit. The Receivable Availability shall mean
an amount equal to eighty percent (80%) (the "Receivables Advance Percentage")
of the Net Amount of Eligible Receivables which have been validly assigned to
Lender and in which Lender holds a perfected security interest pursuant to the
terms hereof ranking prior to and free and clear of all interests, claims, and
rights of others. The Inventory Availability shall mean an amount which is equal
to the lesser of (a) fifty percent (50%) of the lower of cost or market value of
Eligible Inventory in which Lender holds a perfected security interest pursuant
to the terms hereof ranking prior to all interests, claims and rights of others;
(b) 80% of the orderly liquidation value, as determined by an appraiser selected
by Lender and retained at Borrower's expense, of Eligible Inventory in which
Lender holds a perfected security interest pursuant to the terms hereof ranking
prior to all interests, claims and rights of others; and (c) the Maximum
Inventory Loan. The making of any loan in excess of the percentages set forth
above shall not be deemed to modify such percentages or create any obligation to
make any further such loan. All loans (and all other amounts chargeable to
Borrower under this Agreement or any supplement hereto) shall be charged to a
Loan Account in Borrower's name on Lender's books. Lender shall render to
Borrower each month a statement of the Loan Account (and all credits and charges
thereto) which shall be considered correct and accepted by Borrower and
conclusively binding upon Borrower as an account stated except to the extent
that Lender receives a written notice by registered mail of Borrower's
exceptions within 30 days after such statement has been mailed by ordinary mail
to Borrower.
Section 3 LENDER'S CHARGES
3.1 Borrower agrees to pay to Lender each month interest (computed on the
basis of the actual number of days elapsed over a year of 360 days) (a) on that
portion of the average daily balances in the Loan Account during the preceding
month which equals the Advance Percentage multiplied by the Net Amount of
Eligible Receivables, at a rate per annum (the "Effective Rate") equal to the
Prime Rate plus the Margin and (b) on the amount of Over-advances, if any, at a
rate of three percent (3%) per annum in excess of the Effective Rate. The rates
under clauses (a) and (b) above shall increase or decrease by one quarter of one
percent (1/4 of 1%) per annum for each increase or decrease, respectively, of
one-quarter of one per cent (1/4 of 1%) per annum in the Prime Rate; provided,,
that no decrease in the Prime Rate below 4.75% per annum shall be given any
effect. Any change in the effective interest rates due to a change in the Prime
Rate shall take effect on the date of such change in the Prime Rate.
3.2 Borrower shall pay to Lender an annual facility fee in the amount of
one percent (1%) of the Maximum Credit Facility payable on the closing date and
on each anniversary of the closing date thereafter.
3.3 Borrower shall pay to Lender monthly an administration fee of $1,000,
payable in arrears on the first day of each month with respect to the prior
month for the stated term of this Agreement.
3.4 A statement of all of Lender's charges shall accompany each monthly
statement of the Loan Account and such charges shall be payable by Borrower
within 5 days after receipt of such statement. In lieu of the separate payment
of charges, Lender at its option, shall have the right to debit the amount of
such charges to Borrower's Loan Account, which charges shall be deemed to be
first paid by amounts subsequently credited to the Loan Account. As more fully
provided in Section 9.2 hereof, in no event shall the interest charges hereunder
exceed the Maximum Rate.
Section 4 SECURITY INTEREST IN COLLATERAL
4.1 As security for the prompt performance, observance and payment in full
of all of the Obligations, Borrower grants to Lender a security interest in, a
continuing lien upon and a right of setoff against, and Borrower hereby assigns,
transfers, pledges and sets over to Lender (collectively, including any other
assets of Borrower in which Lender may be granted a security interest, the
"Collateral"): (i) all Receivables (whether or not Eligible Receivables and
whether or not specifically listed on any schedules, assignments or reports
furnished to Lender), (ii) all of Borrower's property, and the proceeds thereof,
now or hereafter held or received by or in transit to Lender or held by others
for Lender's account, including any and all deposits, balances, sums and credits
of Borrower with, and any and all claims of Borrower against, Lender, at any
time existing, (iii) all credit insurance policies, and all other insurance and
all guarantees relating to the Receivables or other Collateral, (iv) all books,
records and other general intangibles evidencing or relating to Receivables or
other Collateral; all deposits, or other security for the obligation of any
person under or relating to Receivables, all of the Borrower's rights and
remedies of whatever kind or nature it may hold or acquire for the purpose of
securing or enforcing Receivables; all right, title and interest of the Borrower
in and to all goods relating to, or which by sale have resulted in, Receivables,
including goods returned by or reclaimed or repossessed from Account Debtors and
all goods described in copies of invoices delivered by Borrower to Lender; all
rights of stoppage in transit, replevin, repossession and reclamation and all
other rights and remedies of an unpaid vendor or lienor, and all proceeds of any
Letter of Credit naming Borrower as beneficiary and which provides for,
guarantees or assures the payment of any Receivable; (v) accounts, instruments,
documents, chattel paper and general intangibles whether or not arising out of
the sale of goods or rendition of services, and including without limitation
choses in action, causes of action, tax refunds (and claims), and reversions
from terminated pension plans; (vi) all investment property, deposit accounts
and letter of credit rights; (vii) all of Borrower's Inventory and Equipment;
and (viii) all proceeds of such Collateral, in any form, including, without
limitation, cash, non-cash items, checks, notes, drafts and other instruments
for the payment of money. Such security interest in favor of Lender shall
continue during the term of this Agreement and until payment in full of all
Obligations, whether or not this Agreement shall have sooner terminated.
4.2 At Lender's request, Borrower will xxxx its ledger cards, books of
account and other records relating to Receivables with appropriate notations
satisfactory to Lender disclosing that the Receivables have been assigned to
Lender and will provide Lender with confirmatory assignment schedules in form
satisfactory to Lender, copies of customers' invoices, evidence of shipment or
delivery, and such further information as Lender may require. Borrower will take
any and all steps and observe such formalities as Lender may request from time
to time to create and maintain in Lender's favor a valid and first lien upon,
security interest in and pledge of all of Borrower's Receivables and all other
Collateral, including without limitation by way of filing financing statements
and other notices and amendments and renewals thereof that may be requested by
Lender to maintain such security interest in and pledge of the Collateral.
Section 5 CUSTODY AND INSPECTION OF COLLATERAL AND RECORDS;
COLLECTION AND HANDLING OF COLLATERAL
5.1 Until Borrower's authority so to do is terminated at any time by
notice from Lender, Borrower will, at its own expense and on Lender's behalf,
collect as Lender's property and in trust for Lender all payments and
prepayments on Receivables, and shall not commingle such collections with
Borrower's own funds. All amounts collected on Receivables when received by
Lender shall be credited to Borrower's Loan Account, adding five (5) Business
Days for collection and clearance of remittances. Such credits shall be
conditional upon final payment to Lender. Nothing contained in this Section 5.1,
or otherwise in the Agreement, shall be deemed to limit Lender's rights and
powers pursuant to Section 7 of the Agreement. Borrower shall deposit into an
account designated and controlled by Lender, (i) on the day received, all cash
and checks collected from customers on COD sales; and (ii) on their maturity
dates, all post-dated checks received from customers except that Lender may at
its option require Borrower to immediately deliver to Lender, on the same day as
received by Borrower, all post-dated checks in their original form. All
customers who buy on credit terms other than through the use of post-dated
checks shall be instructed by Borrower to remit payments directly to a lockbox
controlled by Lender and maintained at Borrower's expense.
5.2 All records, ledger sheets, correspondence, contracts and
documentation relating to or evidencing Receivables shall, until delivered to
Lender or removed by Lender from Borrower's premises, be kept on Borrower's
premises, without cost to Lender, in appropriate containers in safe places,
bearing suitable legends identifying them and all related files, containers,
receptacles and cabinets as being under Lender's dominion and control. Lender
shall at all reasonable times have full access to and the right to examine and
make copies of Borrower's books and records, to confirm and verify all
Receivables assigned to Lender and to do whatever else Lender deems necessary to
protect its interest. Lender may at any time remove from Borrower's premises, or
require Borrower to deliver any contracts, documentation, files and records
relating to Receivables, or Lender may, without cost or expense to Lender, use
such of Borrower's personnel, supplies and space at Borrower's places of
business as may be reasonably necessary for collection of Receivables.
5.3 Borrower will immediately upon obtaining knowledge thereof report to
Lender all reclaimed, repossessed or returned merchandise, Account Debtor claims
and any other matter affecting the value, enforceability or collectibility of
Receivables. Any merchandise reclaimed or repossessed by or returned to Borrower
will, at the cost and expense of Borrower, be set aside marked with the name of
the Lender and will be held by Borrower for the account of Lender and subject to
Lender's security interest. All claims and disputes relating to Receivables are
to be promptly adjusted by Borrower with the prior approval of Lender and within
a reasonable time, at its own cost and expense. Lender may, at its option,
settle, adjust or compromise claims and disputes relating to Receivables which
are not adjusted by Borrower within a reasonable time.
5.4 Borrower shall reimburse Lender on demand for all costs of collection
incurred by Lender in efforts to enforce payment of Receivables, recovery of or
realization upon any other Collateral, including reasonable attorneys' fees and
the fees and commissions of collection agencies. All and any fees, costs and
expenses, of whatever kind and nature, including taxes of any kind, which Lender
may incur in filing public notices (including appraisal fees and advertising
costs), and the reasonable charges of any attorney whom Lender may engage in
preparing and filing documents, making title or lien examinations and rendering
opinion letters, as well as expenses incurred by Lender (including all
attorneys' fees and including Lender's out of pocket expenses in conducting
periodic field examinations of Borrower and the collateral plus Lender's
prevailing per diem charge for each of its examiners in the field and office,
now $800 per person per day, which out of pocket expenses in conducting periodic
field examinations and which per diem charge for Lender's examiners shall not
exceed $12,000 in the aggregate in any contract year (the 12 month period
commencing on the date hereof and on the anniversary of such date in each
succeeding year) so long as no Default has occurred), in protecting,
maintaining, preserving, enforcing or foreclosing the pledge, lien and security
interest granted to Lender hereunder, whether through judicial proceedings or
otherwise, or enforcing or collecting the Receivables, or recovery of or
realization upon any other Collateral, or in defending or prosecuting any
actions or proceedings arising out of or related to its transactions with
Borrower, including actions or proceedings which may involve any person
asserting a priority or claim with respect to the Collateral, shall be borne and
paid for by Borrower on demand, shall constitute part of the Obligations and may
at Lender's option be charged to Borrower's Loan Account.
Section 6 REPRESENTATIONS, COVENANTS AND WARRANTIES
As an inducement to Lender to enter into this Agreement, Borrower
represents, covenants and warrants (which shall survive the execution and
delivery of this Agreement) that:
6.1 Borrower is a corporation duly organized and presently existing in
good standing under the laws of the State of New York and is duly qualified and
existing in good standing in every other state in which the nature of Borrower's
business requires it to be qualified.
6.2 The execution, delivery and performance of this Agreement are within
the corporate powers of Borrower, have been duly authorized by appropriate
corporate action and are not in contravention of the terms of Borrower's charter
or by-laws or of any indenture, agreement or undertaking to which Borrower is a
party or by which it may be bound. Borrower warrants that it is and covenants
that it shall remain solvent at all times while this Agreement is in effect.
6.3 Borrower is and shall be, with respect to all Inventory and Equipment,
the owner thereof free from any lien, security interest or encumbrance of any
kind, except in favor of Lender and except for Permitted Liens. No Receivable or
any other Collateral has been or shall hereafter be assigned, pledged or
transferred to any person other than the Lender or in any way encumbered or
subject to a security interest except to Lender and Borrower shall defend the
same against the claims of all persons.
6.4 Borrower's books and records relating to the Receivables are
maintained at the office referred to below. Except as otherwise stated below,
the principal executive office of Borrower is located at such address and has
been so located on a continuous basis for not less than six months. Borrower
shall not change such location without Lender's prior written consent, and, upon
making any such change, Borrower agrees to execute any additional financing
statements or other documents or notices which Lender may require.
6.5 All loans and advances requested by Borrower under this Agreement
shall be used for the general corporate and business purposes of Borrower and
shall in no event be requested or used by Borrower for the specific purpose of
paying wages of the employees of Borrower.
6.6 Borrower shall maintain its shipping forms, invoices and other related
documents in a form satisfactory to Lender and shall maintain its books, records
and accounts in accordance with sound accounting practice. Borrower shall
furnish to Lender (a) accounts receivable agings (i) weekly, not later than
Wednesday of each week covering the previous week; and (ii) monthly, not later
than the 10th of each month, covering the previous month; and (b) inventory
designations (i) weekly, not later than Wednesday of each week, covering the
period through Friday of the previous week; and (ii) monthly, not later than the
10th of each month, covering the previous month. Borrower shall furnish to
Lender such other information regarding the business affairs and financial
condition of Borrower as Lender may, from time to time, reasonably request,
including, without limitation (a) audited financial statements as at the end of
and for each fiscal year of Borrower, as soon as practical and in any event
within 90 days after the end of each such fiscal year, in such detail and scope
as Lender may require including without limitation, a balance sheet, a statement
of income, a statement of cash flows and notes, prepared by independent
Certified Public Accountants acceptable to Lender; and concurrently with such
financial statements, a written statement signed by such independent public
accountants to the effect that, (i) in making the examination necessary for
their opinion of such financial statements, they have not obtained any knowledge
of the existence of any Event of Default, or (ii) if such independent public
accountants shall have obtained from such examination any such knowledge, they
shall disclose in such written statement the Event of Default and the nature
thereof, (b) financial statements prepared internally as at the end of and for
each fiscal quarterly period of Borrower, as soon as practical and in any event
within 45 days after the end of each such fiscal quarter of Borrower, in such
detail and scope as Lender may require including without limitation, a balance
sheet, a statement of income, a statement of cash flows and notes, certified by
the Chief Financial Officer of Borrower ("CFO"); and concurrently with such
financial statements, a written statement signed by the CFO to the effect that,
(i) CFO has not obtained any knowledge of the existence of any Event of Default,
or (ii) if such CFO has obtained from such examination any such knowledge, such
CFO shall disclose in such written statement the Event of Default and the nature
thereof. All such statements and information shall fairly present the financial
condition of Borrower, and the results of its operations as of the dates and for
the periods, for which the same are furnished.
6.7 Borrower shall duly pay and discharge all taxes, assessments,
contributions and governmental charges upon or against it or its properties or
assets prior to the date on which penalties attach thereto. Borrower shall be
liable for any tax (excluding a tax imposed on the overall net income of Lender)
imposed upon any transaction under this Agreement or giving rise to the
Receivables or which Lender may be required to withhold or pay for any reason
and Borrower agrees to indemnify and hold Lender harmless with respect thereto,
and to repay Lender on demand the amount thereof, and until paid by Borrower
shall be added to the Obligations secured hereunder, and may at Lender's option
be charged to Borrower's Loan Account.
6.8 With respect to each Receivable, Borrower hereby represents and
warrants that: each Receivable represents a valid and legally enforceable
indebtedness based upon an actual and bona fide sale and delivery of property or
rendition of services in the ordinary course of Borrower's business which has
been finally accepted by the Account Debtor and for which the Account Debtor is
unconditionally liable to make payment of the amount stated in each invoice,
document or instrument evidencing the Receivable in accordance with the terms
thereof, without offset, defense or counterclaim; each Receivable will be paid
in full at maturity; all statements made and all unpaid balances appearing in
any invoices, documents, instruments and statements of account describing or
evidencing the Receivables are true and correct and are in all respects what
they purport to be and all signatures and endorsements that appear thereon are
genuine and all signatories and endorsers have full capacity to contract; the
Account Debtor owing the Receivable and each guarantor, endorser or surety of
such Receivable is solvent and financially able to pay in full the Receivable
when it matures; and all recording, filing and other requirements of giving
public notice under any applicable law have been duly complied with.
6.9 Borrower shall until payment in full of all Obligations to Lender and
termination of this Agreement cause to be maintained at the end of each fiscal
quarter (ie, December, March, June, September), Tangible Net Worth in an amount
not less than $2,900,000, Working Capital of not less than $2,500,000 and a
ratio of total debt to Tangible Net Worth of no less than 2 to 1.
6.10 Borrower shall during the term of this Agreement not make capital
expenditures in any fiscal year of Borrower exceeding $100,000.
For the purpose hereof the following terms shall have the following
definitions:
"Current Assets" at a particular date shall mean cash, pre-payments for
inventory purchases, accounts and inventory of Borrower providing however, that
such amounts shall not include any amounts for any indebtedness owing by any
affiliate to Borrower.
"Current Liabilities" at a particular date shall mean all amounts which
would, in conformity with GAAP, be included under current liabilities on a
balance sheet of Borrower, as at such date, but in any event including, without
limitation or duplications, the amounts of (a) all indebtedness payable on
demand, or at the option of the person or entity to whom such indebtedness is
owed, not more than twelve (12) months after such date, (b) any payments in
respect of any indebtedness (whether installment, serial maturity, sinking fund
payment or otherwise) required to be made not more than twelve (12) months after
such date, (c) all reserves in respect of liabilities or indebtedness payable on
demand or, at the option of the person or entity to whom such indebtedness is
owed, not more than twelve (12) months after such date, the validity which is
not contested to such date, (d) all accruals for federal or other taxes measured
by income payable within twelve (12) months of such date and (e) all outstanding
indebtedness to Lender.
"Tangible Net Worth" shall mean, at a particular date (a) the aggregate
amount of all assets of Borrower as may be properly classified as such in
accordance with GAAP consistently applied excluding such other assets as are
properly classified as intangible assets under GAAP, less (b) the aggregate
amount of all liabilities of Borrower (excluding subordinated liabilities to
Lender) determined in accordance with GAAP.
"Working Capital" shall mean the excess, if any, of Current Assets less
Current Liabilities.
6.11 Prior to the making of any loans hereunder, the sum of the Receivable
Availability and the Inventory Availability shall be in an amount equal to or
greater than $150,000 plus the sum of all amounts required to be disbursed at
closing for the purpose of paying Lender's expenses chargeable to Borrower
hereunder and all amounts required to be paid to creditors to induce them to
release any liens in the Collateral that are not Permitted Liens.
6.12 During the term of this Agreement, Borrower shall not make any sales
to customers by accepting a credit card issued to such customers unless Borrower
has prior thereto entered into a merchant agreement with a processor, relating
to sales made using such credit card, on terms that are acceptable to Lender,
and such processor has agreed to remit the proceeds of such sales to an account
of Borrower with respect to which Lender has control in accordance with Section
9-104 of the Uniform Commercial Code..
Section 7 SPECIFIC POWERS OF LENDER
7.1 Borrower hereby constitutes Lender or its agent, or any other person
whom Lender may designate, as Borrower's attorney, at Borrower's own cost and
expense to exercise at any time all or any of the following powers which, being
coupled with an interest, shall be irrevocable until all Obligations have been
paid in full: (a) to receive, take, endorse, assign, deliver, accept and
deposit, in Lender's or Borrower's name, any and all checks, notes, drafts,
remittances and other instruments and documents relating to Receivables and
proceeds thereof; (b) to receive, open and dispose of all mail addressed to
Borrower and to notify postal authorities to change the address for delivery
thereof to such address as Lender may designate; (c) to transmit to Account
Debtors indebted on Receivables notice of Lender's interest therein and to
request from such Account Debtors at any time, in Borrower's name or in Lender's
or that of Lender's designee, information concerning the Receivables and the
amounts owing thereon; (d) to notify Account Debtors to make payment directly to
Lender; (e) to take or bring, in Borrower's name or Lender's, all steps,
actions, suits or proceedings deemed by Lender necessary or desirable to effect
collection of the Receivables; and (f) to sign on behalf of the Borrower one or
more financing statements (or amendments to financing statements) under the
Uniform Commercial Code. In addition, to the extent permitted by law, Lender may
file one or more financing statements signed only by Lender, naming Borrower as
debtor and Lender as secured party and indicating therein the types or
describing the items of collateral covered by this Agreement. Without limitation
of any of the powers enumerated above, Lender is hereby authorized to accept and
to deposit all collections in any form, relating to Receivables, received from
or for the account of Account Debtors (whether such collections are remitted
directly to Lender by Account Debtors or are forwarded to Lender by Borrower),
including remittances which may reflect deductions taken by Account Debtors,
regardless of amount, the Loan Account of Borrower to be credited only with
amounts actually collected on Receivables in accordance with Section 5.1.
Borrower hereby releases (i) any bank, trust company or other firm receiving or
accepting such collections in any form, and (ii) Lender and its officers,
employees and designees, from any liability arising from any act or acts
hereunder or in furtherance hereof, whether of omission or commission, and
whether based upon any error of judgment or mistake of law or fact.
Section 8 LENDER'S REMEDIES UPON BORROWER'S DEFAULT
8.1 Borrower agrees that all of the loans and advances made by Lender
under the terms of this Agreement, together with all Obligations of Borrower as
defined herein (unless otherwise provided in any instrument evidencing the same
or agreement relating thereto), shall be payable by Borrower at Lender's demand
at the office of Lender in New York, New York. In addition, all Obligations
shall be, at Lender's option, due and payable without notice or demand upon
termination of this Agreement or upon the occurrence of any one or more of the
following events of default ("Default"): (a) if Borrower shall fail to pay to
Lender when due any amounts owing to Lender under any Obligation, or shall
breach any of the terms, covenants, conditions or provisions of this Agreement
or any other agreement between the parties; (b) if any guarantor, endorser or
other person liable on the Obligations shall die, terminate its guaranty or
shall breach any of the terms, covenants, conditions or provisions of any
guarantee, endorsement or other agreement of such person with, or in favor of,
Lender; (c) if any representation, warranty, or statement of fact made to Lender
at any time by or on behalf of Borrower is false or misleading in any material
respect; (d) if Borrower fails to deliver to Lender, no later than 60 days after
the date hereof, or fails to maintain in effect during the term of this
Agreement, an assignment of life insurance policy on the life of Xxx Xxxxxx in
the face amount of not less than $1,000,000 against which there are no liens,
loans or claims, such assignments, policies and issuer thereof all acceptable to
Lender in its sole discretion and such policies to be delivered to Lender within
such 60 day period (e) if Borrower shall become insolvent, fails to pay when due
indebtedness for borrowed money, breaches the terms of any lease of premises
occupied by it, is generally unable to pay its debts as they mature, files or
has filed against it a petition in bankruptcy, liquidation or reorganization, or
if a judgment against Borrower remains unpaid, unstayed or undismissed for a
period of more than five days, or if Borrower discontinues doing business for
any reason, or if a custodian, receiver or trustee of any kind is appointed for
it or any of its property; (f) if there is a change (by voluntary transfer,
death or otherwise) in Borrower's controlling stockholders or owners (except
that the merger, on or before November 30, 2004, of Borrower into Alliance
Distributors Holding, Inc., a Delaware corporation ("Alliance Delaware"), shall
not be a Default if immediately following such merger control of Alliance
Delware continues to be held by Xxx Xxxxxx, Xxxxx Xxxxxx and Xxxxxxx Xxxxxxxxx,
it being understood that nothing contained herein is intended to limit Lender's
right to declare, as a Default, any change of control subsequent to November 30,
2004); (g) if at any time Lender shall, in its sole discretion, reasonably
exercised, consider the Obligations insecure or any part of the Receivables
unsafe, insecure or insufficient and Borrower shall not on demand furnish other
collateral or make payment on account, satisfactory to Lender; or (h) if (i)
Borrower shall default under or breach the terms of any present or future
lease(s) (each a "Lease") of any premises now or hereafter leased by Borrower
("Leased Premises") or (ii) Lender shall receive notice from any lessor of any
Leased Premises that a default has occurred under any Lease, or that any Lease
has been terminated. Upon the occurrence of any Default, (i) Borrower shall pay
to Lender, as liquidated damages and as part of the Obligations, a charge at the
rate of two percent per month upon the unpaid balance of the Obligations from
the date of Default until the date of full payment of the Obligations, which
charge shall be in lieu of compensation payable under Section 3.1 from such
date; provided, that in no event shall such rate exceed the Maximum Rate, (ii)
Borrower shall pay to Lender all costs, disbursements, charges and expenses for
the collection and enforcement of the Obligations, and for the protection and
enforcement of Lender's security interest, including attorneys' fees, all of
which shall be added to and deemed part of the Obligations, and (iii) Lender
shall have the right (in addition to any other rights Lender may have under this
Agreement or otherwise) without further notice to Borrower, to enforce payment
of any Receivables, to settle, compromise, or release in whole or in part, any
amounts owing on Receivables, to prosecute any action, suit or proceeding with
respect to Receivables, to extend the time of payment of any and all
Receivables, to make allowances and adjustments with respect thereto, to issue
credits in Lender's name or Borrower's, to sell, assign and deliver the
Receivables (or any part thereof) and any returned, reclaimed or repossessed
merchandise or other property held by Lender or by Borrower for Lender's
account, at public or private sale, at broker's board, for cash, upon credit or
otherwise, at Lender's sole option and discretion, and Lender may bid or become
purchaser at any such sale if public, free from any right of redemption which is
hereby expressly waived. Borrower agrees that the giving of five days' notice by
Lender, sent by ordinary mail, postage prepaid, to the mailing address of
Borrower set forth in this Agreement, designating the place and time of any
public sale or the time after which any private sale or other intended
disposition of the Receivables or any other security held by Lender is to be
made, shall be deemed to be reasonable notice thereof and Borrower waives any
other notice with respect thereto. The net cash proceeds resulting from the
exercise of any of the foregoing rights or remedies shall be applied by Lender
to the payment of the Obligations in such order as Lender may elect, and
Borrower shall remain liable to Lender for any deficiency.
8.2 The enumeration of the foregoing rights and remedies is not intended
to be exhaustive, and such rights and remedies are in addition to and not by way
of limitation of any other rights or remedies Lender may have under the New York
Uniform Commercial Code or other applicable law. Lender shall have the right, in
its sole discretion, to determine which rights and remedies, and in which order
any of the same, are to be exercised, and to determine which Receivables are to
be proceeded against and in which order, and the exercise of any right or remedy
shall not preclude the exercise of any others, all of which shall be cumulative.
No act, failure or delay by Lender shall constitute a waiver of any of its
rights and remedies. No single or partial waiver by Lender of any provision of
this Agreement, or breach or default thereunder, or of any right or remedy which
Lender may have shall operate as a waiver of any other provision, breach,
default, right or remedy or of the same provision, breach, default, right or
remedy on a future occasion. Borrower waives presentment, notice of dishonor,
protest and notice of protest of all instruments included in or evidencing any
of the Obligations or the Receivables and any and all notices or demands
whatsoever (except as expressly provided herein). Lender may, at all times,
proceed directly against Borrower to enforce payment of the Obligations and
shall not be required to first enforce its rights in the Receivables or any
other security granted to it. Lender shall not be required to take any action of
any kind to preserve, collect or protect its or Borrower's rights in the
Receivables or any other security granted to it.
8.3 BORROWER HEREBY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF
ANY LITIGATION WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, THE
OBLIGATIONS, THE RECEIVABLES, OR ANY OTHER TRANSACTION BETWEEN THE PARTIES AND
BORROWER HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND OF ANY FEDERAL COURT LOCATED IN SUCH STATE IN CONNECTION
WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR
THE OBLIGATIONS. IN ANY SUCH LITIGATION BORROWER WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY BE MADE
BY CERTIFIED OR REGISTERED MAIL DIRECTED TO BORROWER AT ITS PLACE OF BUSINESS
SET FORTH ABOVE. WITHIN 30 DAYS AFTER SUCH MAILING, BORROWER SHALL APPEAR IN
ANSWER TO SUCH SUMMONS, COMPLAINT OR OTHER PROCESS, FAILING WHICH BORROWER SHALL
BE DEEMED IN DEFAULT AND JUDGMENT MAY BE ENTERED BY LENDER AGAINST BORROWER FOR
THE AMOUNT OF THE CLAIM AND OTHER RELIEF REQUESTED THEREIN.
Section 9 EFFECTIVE DATE, CONTROLLING LAW AND TERMINATION
9.1 This Agreement shall become effective upon acceptance by Lender at its
office in the State of New York, and shall continue in full force and effect
until November 30, 2007 (the "Renewal Date") and from year to year thereafter,
unless sooner terminated as herein provided. Borrower may terminate this
Agreement on the Renewal Date or on the anniversary of the Renewal Date in any
year by giving Lender at least sixty (60) days' prior written notice by
registered or certified mail, return receipt requested, and in addition to its
other rights hereunder, Lender shall have the right to terminate this Agreement
at any time by giving Borrower thirty (30) days' prior written notice. In
addition to the charges under Section 3 hereof, as minimum compensation to
Lender for its agreement to make loans under the terms of this Agreement, and
for its services hereunder, Lender shall receive and Borrower agrees to pay
minimum charges in the aggregate amount of $12,000 during each month (or any
part thereof, if sooner terminated) that this Agreement is in effect, which
minimum compensation shall be payable after deducting for each month the charges
paid by Borrower for such month under Section 3.1. Should a Default occur
hereunder, this Agreement will be terminable by Lender at any time and Borrower
shall, upon any such termination by Lender, pay to Lender, as additional
liquidated damages and as part of the Obligations, an amount equal to (i) three
percent (3%) of the Maximum Credit Facility in effect on the effective date of
such termination (the "Termination Date") if the Termination Date occurs on or
prior to the first anniversary of the date hereof; (ii) two percent (2%) of the
Maximum Credit Facility in effect on the Termination Date if the Termination
Date occurs later than the first anniversary of the date hereof but on or before
the second anniversary of the date hereof; and (iii) one percent (1%) of the
Maximum Credit Facility in effect on the Termination Date if the Termination
Date occurs after the second anniversary of the date hereof. In the event that
Lender shall permit termination of this Agreement by Borrower other than as
provided herein, as a condition to such termination, Borrower shall pay to
Lender such additional liquidated damages in addition to performance of any
other conditions to such termination. No termination of this Agreement, however,
shall relieve or discharge Borrower of its duties, obligations and covenants
hereunder until such time as all Obligations have been paid in full, and the
continuing security interest in Receivables and other Collateral granted to
Lender hereunder or under any other agreement shall remain in effect until such
Obligations have been fully discharged. No provision hereof shall be modified or
amended orally or by course of conduct but only by a written instrument
expressly referring hereto signed by both parties. This Agreement shall be
binding upon and inure to the benefit of Borrower and Lender and their
respective heirs, executors, administrators, successors and assigns, provided,
however, that Borrower may not assign this Agreement or its rights hereunder
without Lender's prior written consent.
9.2 ALL LOANS SHALL BE DISBURSED BY LENDER FROM ITS OFFICE IN THE STATE OF
NEW YORK, SHALL BE PAYABLE BY BORROWER AT SUCH OFFICE, AND THIS AGREEMENT AND
ALL TRANSACTIONS THEREUNDER SHALL BE DEEMED TO BE CONSUMMATED IN SUCH STATE AND
SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THAT STATE.
If any part or provision of this Agreement is invalid or in contravention of the
applicable laws or regulations of any controlling jurisdiction, such part or
provision shall be severable without affecting the validity of any other part or
provision of this Agreement. Notwithstanding any provision herein or in any
related document, Lender shall never be entitled to receive, collect, or apply,
as interest on the Loan Account, any amount in excess of the maximum rate of
interest ("Maximum Rate") permitted to be charged from time to time by
applicable law (if such law imposes any maximum rate), and in the event Lender
ever receives, collects, or applies as interest, any amount in excess of the
Maximum Rate, such amount shall be deemed and treated as a partial prepayment of
the principal of the Loan Account; and, if the principal of the Loan Account and
all other of Lender's charges other than interest are paid in full, any
remaining excess shall be paid to Borrower.
IN WITNESS WHEREOF, Lender and Borrower have caused this Agreement to be
executed by their respective corporate officers thereto duly authorized as of
the day and year first above written.
ALLIANCE DISTRIBUTORS HOLDING, INC.
By:
--------------------------------
Title:
Attest:
-------------------
Secretary
Accepted:
XXXXXXXXX & XXXXXXXXX, INC.
By:
--------------------------------
Xxxxx X. Xxxxxxxxxxxx
Senior Vice President
Location of Borrower's
Books and Records:
00-00 000xx Xxxxxx, Xxxxxxx Xxxxx, XX 00000
Mailing Address of Borrower:
00-00 000xx Xxxxxx, Xxxxxxx Xxxxx, XX 00000
Chief Executive Xxxxxx
xx Xxxxxxxx:
00-00 000xx Xxxxxx, Xxxxxxx Xxxxx, XX 00000
Other Places of Business
of Borrower:
00-00 000xx Xxxxxx, Xxxxxxx Xxxxx, XX 00000
