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Exhibit 10.C
LOAN AGREEMENT
FIRST UNION NATIONAL BANK ("Bank")
000 XXXXX XXXXX XXXXXX, XX0000
XXXXXXXXXXXX, XXXXXXX 00000
(Hereinafter referred to as the "Bank")
FLORAFAX INTERNATIONAL, INC.
0000 00XX XX
XXXX XXXXX, XX 00000
(Individually and collectively, "Borrower")
This Loan Agreement ("Agreement") is entered into this sixteenth day of January,
1998, by and between Bank and FLORAFAX INTERNATIONAL, INC., a corporation
organized under the laws of the State of Delaware.
Borrower has applied to Bank for a loan or loans (individually and collectively,
the "loan") evidenced by one or more promissory notes (whether one or more, the
"Note") as follows:
o Revolver with termout - in the principal amount of $5,000,000.00 which
is evidenced by the Promissory Note dated January 16, 1998 (the
"Note"). The loan proceeds are to be used by Borrower solely for
business acquisitions and general working capital needs.
This Agreement applies to the loan and all Loan Documents. The terms "Loan
Documents" and "Obligations," as used in this Agreement, are defined in the
Note. The term "Borrower" shall include its Subsidiaries and Affiliates. As used
in this Agreement as to Borrower, "Subsidiary" shall mean any corporation of
which more than 50% of the issued and outstanding voting stock is owned directly
or indirectly by Borrower. As to Borrower, "Affiliate" shall have the meaning as
defined in 11 U.S.C. section 101, except that the term "debtor" therein shall be
substituted by the term "Borrower" herein.
Relying upon the covenants, agreements, representations and warranties contained
in this Agreement, Bank is willing to extend credit to Borrower upon the terms
and subject to the conditions set forth herein, and Bank and Borrower agree as
follows:
REPRESENTATIONS. Borrower represents that from the date of this Agreement and
until final payment in full of the Obligations: ACCURATE INFORMATION. All
information now and hereafter furnished to Bank is and will be true, correct and
complete. Any such information relating to Borrower's financial condition will
accurately reflect Borrower's financial condition as of the date(s) thereof,
(including all contingent liabilities of every type, and Borrower further
represents that its financial condition has not changed materially or adversely
since the date(s) of such documents. AUTHORIZATION; NON-CONTRAVENTION. The
execution, delivery and performance by Borrower and any guarantor, as
applicable, of this Agreement and other Loan Documents to which it is a party
are within its power, have been duly authorized by all necessary action taken by
the duly authorized officers of Borrower and any guarantors and if necessary, by
making appropriate filings with any governmental agency or unit and are the
legal, binding, valid and enforceable obligations of Borrower and any
guarantors; and do not (i) contravene, or constitute (with or without the giving
of notice or lapse of time or both) a violation of any provision of applicable
law, a violation of the organizational documents of Borrower or any guarantor,
or a default under any agreement, judgment, injunction, order, decree or other
instrument binding upon or affecting Borrower or any guarantor, (ii) result in
the creation or imposition of any lien (other than the lien(s) created by the
Loan Documents) on any of Borrower's or guarantor's assets, or (iii) give cause
for the acceleration of any obligations of Borrower or any guarantor to any
other creditor. ASSET OWNERSHIP. Borrower has good and marketable title to all
of the properties and assets reflected on the balance sheets and financial
statements supplied Bank by Borrower, and all such
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properties and assets are free and clear of mortgages, security deeds, pledges,
liens, charges, and all other encumbrances, except as otherwise disclosed to
Bank by Borrower in writing ("Permitted Liens"). To Borrower's knowledge, no
default has occurred under any Permitted Liens and no claims or interests
adverse to Borrower's present rights in its properties and assets have arisen.
DISCHARGE OF LIENS AND TAXES. Borrower has duly filed, paid and/or discharged
all taxes or other claims which may become a lien on any of its property or
assets, except to the extent that such items are being appropriately contested
in good faith and an adequate reserve for the payment thereof is being
maintained. SUFFICIENCY OF CAPITAL. Borrower is not, and after consummation of
this Agreement and after giving effect to all indebtedness incurred and liens
created by Borrower in connection with the Loan, will not be insolvent within
the meaning of 11 U.S.C. section 101(32). COMPLIANCE WITH LAWS. Borrower is in
compliance in all respects with all federal, state and local laws, rules and
regulations applicable to its properties, operations, business, and finances,
including, without limitation, any federal or state laws relating to liquor
(including 18 U.S.C. section 3617 ET SEQ.) or narcotics (including 21 U.S.C.
section 801 ET SEQ.) and/or any commercial crimes; all applicable federal, state
and local laws and regulations intended to protect the environment; and the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), if
applicable. ORGANIZATION AND AUTHORITY. Each corporate or limited liability
company Borrower and any guarantor, as applicable, is duly created, validly
existing and in good standing under the laws of the state of its organization,
and has all powers, governmental licenses, authorizations, consents and
approvals required to operate its business as now conducted. Each corporate or
limited liability company Borrower and any guarantor, if any, is duly qualified,
licensed and in good standing in each jurisdiction where qualification or
licensing is required by the nature of its business or the character and
location of its property, business or customers, and in which the failure to so
qualify or be licensed, as the case may be, in the aggregate, could have a
material adverse effect on the business, financial position, results of
operations, properties or prospects of Borrower or any such guarantor. NO
LITIGATION. There are no pending or threatened suits, claims or demands against
Borrower or any guarantor that have not been disclosed to Bank by Borrower in
writing. ERISA. Each employee pension benefit plan, as defined in ERISA,
maintained by Borrower meets, as of the date hereof, the minimum funding
standards of ERISA and all applicable regulations thereto and requirements
thereof, and of the Internal Revenue Code of 1954, as amended. No "Prohibited
Transaction" or "Reportable Event" (as both terms are defined by ERISA) has
occurred with respect to any such plan.
AFFIRMATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing: BUSINESS CONTINUITY. Borrower shall conduct its business in
substantially the same manner and locations as such business is now and has
previously been conducted. MAINTAIN PROPERTIES. Borrower shall maintain,
preserve and keep its property in good repair, working order and condition,
making all needed replacements, additions and improvements thereto, to the
extent allowed by this Agreement. ACCESS TO BOOKS & RECORDS. Borrower shall
allow Bank, or its agents, during normal business hours, access to the books,
records and such other documents of Borrower as Bank shall reasonably require,
and allow Bank to make copies thereof at Bank's expense. INSURANCE. Borrower
shall maintain adequate insurance coverage with respect to its properties and
business against loss or damage of the kinds and in the amounts customarily
insured against by companies of established reputation engaged in the same or
similar businesses including, without limitation, commercial general liability
insurance, workmen's compensation insurance, and business interruption
insurance, and upon all Collateral (as defined in the Loan Documents) securing
the Obligations, such insurance as specified in the Loan Documents; all acquired
in such amounts and from such companies as Bank may reasonably require. NOTICE
OF DEFAULT AND OTHER NOTICES. (a) NOTICE OF DEFAULT. Borrower shall furnish to
Bank immediately upon becoming aware of the existence of any condition or event
which constitutes a Default (as defined in the Loan Documents) or any event
which, upon the giving of notice or lapse of time or both, may become a Default,
written notice specifying the nature and period of existence thereof and the
action which Borrower is taking or proposes to take with respect thereto. (b)
OTHER NOTICES. Borrower shall promptly notify Bank in writing of (i) any
material adverse change in its financial condition or its business; (ii) any
default under any material agreement, contract or other instrument to which it
is a party or by which any of its properties are bound, or any acceleration of
the maturity of any indebtedness owed by Borrower; (iii) any material adverse
claim against or affecting Borrower; or any part of its properties; (iv) the
commencement of, and any material determination in, any litigation with any
third party or any proceeding before any governmental agency or unit affecting
Borrower; and (v) at least thirty (30) days prior thereto, any change in
Borrower's name or address as shown above, and/or any change in Borrower's
structure. COMPLIANCE WITH OTHER AGREEMENTS. Borrower shall comply with all
terms and conditions contained in this Agreement, and any other
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Loan Documents, and swap agreements, if applicable, as defined in the Note.
PAYMENTS OF DEBTS. Borrower shall pay and discharge when due, and before subject
to penalty or further charge, and otherwise satisfy before maturity or
delinquency, all obligations, debts, taxes, and liabilities of whatever nature
or amount, except those which Borrower in good faith disputes. OTHER FINANCIAL
INFORMATION. Borrower shall deliver promptly such other information regarding
the operation, business affairs, and financial condition of Borrower which Bank
may reasonably request. NON-DEFAULT CERTIFICATE FROM BORROWER. Borrower shall
deliver to Bank, with the financial statements required above, a certificate
signed by Borrower or by a principal financial officer of Borrower warranting
that no "Default" as specified in the Loan Documents, nor any event which, upon
the giving of notice or lapse of time or both, would constitute such a Default,
has occurred. ESTOPPEL CERTIFICATE. Borrower, within fifteen (15) days after
request by Bank, will furnish a written statement duly acknowledged of the
amount due under the Loan and whether offsets or defenses exist against the
Obligations. DEPOSIT RELATIONSHIP. Borrower will maintain its primary depository
relationship with Bank. CASH MANAGEMENT RELATIONSHIP. Borrower will maintain its
cash management account with Bank. ANNUAL CLEAN UP REQUIREMENT- Borrower's
usage under the proposed $2,000,000.00 working capital sub-limit is subject to a
30 consecutive day annual clean up period.
NEGATIVE COVENANTS. Borrower agrees that from the date of this Agreement and
until final payment in full of the Obligations, unless Bank shall otherwise
consent in writing: GOVERNMENT INTERVENTION. Borrower shall not permit the
assertion or making of any seizure, vesting or intervention by or under
authority of any government by which the management of Borrower or any guarantor
is displaced of its authority in the conduct of its respective business or such
business is curtailed or materially impaired. PREPAYMENT OF OTHER DEBT. Borrower
shall not retire any long-term debt entered into prior to the date of this
Agreement at a date in advance of its legal obligation to do so. RETIRE OR
REPURCHASE CAPITAL STOCK. Borrower shall not retire or otherwise acquire any of
its capital stock. DEFAULT ON OTHER CONTRACTS OR OBLIGATIONS. Borrower shall not
default on any material contract with or obligations when due to a third party
or default in the performance of any obligation to a third party incurred for
money borrowed. JUDGMENT ENTERED. Borrower shall not permit the entry of any
monetary judgment or the assessment against, the filing of any tax lien against,
or the issuance of any writ of garnishment or attachment against any property of
or debts due Borrower. CHANGE IN FISCAL YEAR. Borrower shall not change its
fiscal year without the consent of Bank. LIMITATION ON DEBT. Borrower shall be
permitted to incur additional debt in the ordinary course of business provided,
however, that such additional debt, contingent or direct, does not exceed
$1,000,000.00. Any additional debt above this level will require prior written
consent of the bank. For the purposes of this calculation, "additional debt"
shall include all other bank debt, with the exception of the proposed
$5,000,000.00 Revolving Credit Facility, any outstanding L/C's ( if applicable),
and capitalized leases. ACQUISITION APPROVAL: Bank's approval shall be required
for all proposed acquisitions. Such approval will be based on the target
acquisition's strategic fit with the borrower's business as well as the
financial performance of the company to be acquired.
FINANCIAL REPORTS. Borrower agrees to the following provision(s) from the date
of this Agreement and until final payment in full of the Obligations, unless
Bank shall otherwise consent in writing: ANNUAL FINANCIAL STATEMENTS. Borrower
shall deliver to Bank, within 120 days after the close of each fiscal year,
audited financial statements reflecting its operations during such fiscal year,
including, without limitation, a balance sheet, profit and loss statement and
statement of cash flows, with supporting schedules; all on a consolidated basis
and on consolidated and consolidating basis and in reasonable detail, prepared
in conformity with generally accepted accounting principles, applied on a basis
consistent with that of the preceding year. All such statements shall be
examined by an independent certified public accountant acceptable to Bank. The
opinion of such independent certified public accountant shall not be acceptable
to Bank if qualified due to any limitations in scope imposed by Borrower. Any
other qualification of the opinion by the accountant shall render the
acceptability of the financial statements subject to Bank's approval. ACCOUNTS
PAYABLE AGING. Borrower shall, from time to time hereafter but not less than
annually in conjunction with each fiscal year-end deliver to Bank within 120
days of the end of each such period, a detailed aging of payables by total, a
summary aging of payables by vendor and vendor address, and a reconciliation
statement. Said aging should also include the original date of each invoice.
ACCOUNTS RECEIVABLE AGING. Borrower shall, from time to time hereafter but not
less than annually in conjunction with each fiscal year-end deliver to Bank
within 120 days of the end of each such period, a detailed aging of accounts by
total, a summary aging of accounts by customer and customer address, and a
reconciliation statement. Said aging should also include the original date of
each invoice. ADDITIONAL REPORTS: Borrower is required to provide to the bank
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within 120 days of its fiscal year end a copy of its annual report, 10-K report
and "Proforma Profit and Loss Statement by quarter for the coming year".
Additionally, within 45 days of filing, the bank to receive copies of all 10-Q
reports.
FINANCIAL COVENANTS. Borrower agrees to the following provisions from the date
of this Agreement and until final payment in full of the Obligations, unless
Bank shall otherwise consent in writing: COVENANT COMPLIANCE. Will be tested
annually as of fiscal year end. CURRENT RATIO. Borrower shall, as of fiscal year
end, maintain a Current Ratio of not less than 1.20 to 1.00. "Current Ratio"
shall mean the ratio of current assets divided by current liabilities. TANGIBLE
NET WORTH. Borrower shall, as of fiscal year end, maintain a Tangible Net Worth
of at least Three Million Dollars and No Cents ($3,000,000.00). "Tangible Net
Worth" shall mean total assets minus total liabilities. For purposes of this
computation, the aggregate amount of any intangible assets of Borrower including
without limitation, goodwill, franchises, licenses, patents, trademarks, trade
names, copyrights, service marks, and brand names, shall be subtracted from
total assets, and total liabilities shall include subordinated debt. TOTAL
LIABILITIES TO TANGIBLE NET WORTH RATIO. Borrower shall, as of fiscal year end,
maintain a ratio of Total Liabilities, including subordinated debt, divided by
Tangible Net Worth of not more than 2.00 to 1.00. For purposes of this
computation, "Total Liabilities" shall mean all liabilities, including
capitalized leases and all reserves for deferred taxes and other deferred sums
appearing on the liabilities side of a balance sheet, in accordance with
generally accepted accounting principles applied on a consistent basis.
"Tangible Net Worth" shall mean total assets minus total liabilities. For
purposes of this computation, the aggregate amount of any intangible assets of
Borrower including without limitation, goodwill, franchises, licenses, patents,
trademarks, trade names, copyrights, service marks, and brand names, shall be
subtracted from total assets, and total liabilities shall include subordinated
debt.
CONDITIONS PRECEDENT. The obligations of Bank to make the loan and any advances
pursuant to this Agreement are subject to the following conditions precedent:
ADDITIONAL DOCUMENTS. Receipt by Bank of such additional supporting documents as
Bank or its counsel may reasonably request. COMPLIANCE WITH LOAN DOCUMENTS.
Borrower's full compliance with the Loan Documents. PRIOR TO INITIAL ADVANCE.
The obligations of Bank to make the initial advance for the loan pursuant to
this Agreement are subject to the following conditions precedent: Resolutions.
Bank shall have received from Borrower, as applicable, certified copies of
resolutions of the Board of Directors of Borrower authorizing the execution,
delivery and performance of this Agreement and all other Loan Documents.
CERTIFICATE OF GOOD STANDING. On or prior to the date of any borrowing
hereunder, Bank shall have received from Borrower, a certificate from the
Secretary of State of the state of Borrower's incorporation or organization, as
applicable, as to the good standing of Borrower. OPINION OF COUNSEL. On or prior
to the date of any borrowing hereunder, Bank shall have received a written
opinion of the counsel of Borrower acceptable to Bank that included confirmation
of the following: (a) The accuracy of the representations set forth in this
Agreement in the Representations Subparagraphs entitled "Authorization;
Non-Contravention"; "Compliance with Laws", and "Organization and Authority".
(b) This Agreement and other Loan Documents have been duly executed and
delivered by Borrower and constitute the legal, valid and binding obligations of
Borrower, enforceable in accordance with their terms. (c) No registration with,
consent of, approval of, or other action by, any federal, state or other
governmental authority or regulatory body to the execution and delivery of the
Agreement, the borrowing under this Agreement or other Loan Documents, is
required by law, or, if so required, such registration has been made, and
consent or approval given or such other appropriate action taken. (d) The loan
is not usurious. (e) The Loan Documents create the priority of lien on or
security interest in the Collateral (as defined in the Loan Documents) that is
contemplated by the Loan Documents.
IN WITNESS WHEREOF, Borrower, on the day and year first written above, has
caused this Agreement to be executed under seal.
FLORAFAX INTERNATIONAL, INC.
By:/s/ Xxxxx X'Xxxx
Corporate -----------------------------
Seal Xxxxx X'Xxxx, Vice President
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TAXPAYER IDENTIFICATION NUMBER(S):
FLORAFAX INTERNATIONAL, INC. 00-0000000
FIRST UNION NATIONAL BANK
By:/s/ Xxxxx Xxxxxxxx
----------------------------------------
Xxxxx Xxxxxxxx, Vice President
Access #28890
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