FINANCING AGREEMENT
THE CIT GROUP/BUSINESS CREDIT, INC.
(AS LENDER)
AND
XXXXX ELECTROSTATIC, INC.
(AS BORROWER)
DATED: OCTOBER 21, 1998
TABLE OF CONTENTS
Page
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SECTION 1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3. Revolving Loans . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4. [INTENTIONALLY DELETED]
SECTION 5. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 6. Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 7. Representations, Warranties and Covenants . . . . . . . . . . . 19
SECTION 8. Interest, Fees and Expenses . . . . . . . . . . . . . . . . . . 26
SECTION 9. Powers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10. Events of Default and Remedies. . . . . . . . . . . . . . . . . 29
SECTION 11. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 12. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . 32
SCHEDULES
Schedule 1 - Existing Liens
Schedule 2 - Collateral Locations, Chief Executive Office and Tradenames
Schedule 3 - Existing Litigation
ii
THE CIT GROUP/BUSINESS CREDIT, INC., a New York corporation, (hereinafter
"CITBC") with offices located at 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, is pleased to confirm the terms and conditions under which CITBC shall
make revolving loans and other financial accommodations to XXXXX ELECTROSTATIC,
INC. (hereinafter the "Company"), a Connecticut corporation with a chief
executive office of business at 00000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxxx 00000.
SECTION 1. DEFINITIONS
1.1 For purposes of this Financing Agreement, the following terms shall be
defined in the following manner:
ACCOUNTS shall mean all of the Company's now existing and future: (a)
accounts (as defined in the U.C.C.) and any and all other receivables (whether
or not specifically listed on schedules furnished to CITBC) including, without
limitation, all accounts created by or arising from all of the Company's sales
of goods or rendition of services to its customers, and all accounts arising
from sales or rendition of services made under any of the Company's trade names
or styles, or through any of the Company's divisions; (b) any and all
instruments (as defined in the U.C.C.), documents (as defined in the U.C.C.),
contract rights (as defined in the U.C.C.) and chattel paper (as defined in the
U.C.C.); (c) unpaid seller's rights (including rescission, replevin, reclamation
and stoppage in transit) relating to the foregoing or arising therefrom; (d)
rights to any goods represented by any of the foregoing, including rights to
returned or repossessed goods; (e) reserves and credit balances arising
hereunder; (f) guarantees or collateral for any of the foregoing; (g) insurance
policies or rights relating to any of the foregoing; and (h) cash and non-cash
proceeds of any and all the foregoing.
ACCOUNTS RECEIVABLE ADVANCE PERCENTAGE shall mean either (a) fifty percent
(50%) in the case of any Trade Account Receivable in an amount in excess of
$1,000,000 and unpaid (in whole or in part) more than ninety (90) days from the
date of invoice, (b) seventy-five percent (75%) in the case of any Trade Account
Receivable in an amount in excess of $1,000,000 and unpaid (in whole or in part)
more than sixty (60) days from the date of invoice and (c) eighty-five percent
(85%) in the case of any other Trade Account Receivable.
ANNIVERSARY DATE shall mean the date occurring three (3) years from the
date hereof and the same date in every year thereafter.
AVAILABILITY shall mean at any time the excess of (a) the lesser of i) the
Line of Credit or ii) the Borrowing Base over (b) the sum of i) the outstanding
aggregate amount of all Obligations, ii) the Availability Reserve and iii) after
the occurrence of an Event of Default, all payments of the Company to CITBC
coming due within sixty (60) days from the date of computation.
AVAILABILITY RESERVE shall mean an amount equal to the sum of: (a) three
(3) months rental payments on all of the Company's leased premises for which the
Company has not delivered to CITBC a landlord's waiver (in form and substance
satisfactory to CITBC in the exercise of its reasonable business judgment), as
adjusted from time to time hereafter upon delivery to CITBC of any such
acceptable waiver, the opening or closing of a Collateral location or any change
in rental payment; and (b) such other reserves as CITBC deems necessary in its
reasonable business
judgment, including, without limitation, reserves imposed as a result of i)
negative forecasts and/or trends in the Company's business, industry,
prospects, profits, operations or financial condition or ii) other issues,
circumstances or facts that could otherwise negatively impact the Company,
its business, prospects, profits, operations, industry, financial condition
or assets.
BORROWING BASE shall mean the sum of (a) the outstanding Eligible Accounts
Receivable of the Company multiplied by the applicable Accounts Receivable
Advance Percentage, plus (b) the lesser of i) the Inventory Loan Cap or ii) the
aggregate value of Eligible Inventory of the Company (as determined at the lower
of cost or market on a first-in, first-out basis) multiplied by the Inventory
Advance Percentage.
BUSINESS DAY shall mean any day on which both CITBC and The Chase Manhattan
Bank are open for business.
CAPITAL EXPENDITURES for any period shall mean the aggregate of all
expenditures of the Company during such period that in conformity with GAAP are
required to be included in or reflected by the property, plant or equipment or
similar fixed asset account reflected in the balance sheet of the Company.
CAPITAL LEASE shall mean any lease of property (whether real, personal or
mixed) which, in conformity with GAAP, is accounted for as a capital lease or a
Capital Expenditure on the balance sheet of the Company.
CHASE MANHATTAN RATE shall mean the rate of interest per annum announced by
The Chase Manhattan Bank from time to time as its prime rate in effect at its
principal office in the City of New York. (The prime rate is not intended to be
the lowest rate of interest charged by Chase Manhattan Bank to its borrowers).
CITBC PROPOSAL LETTER shall mean the Commitment Letter dated October 2,
1998, issued by CITBC to, and accepted by, the Company.
CLOSING DATE shall mean the date (on or after the date hereof) on which
CITBC makes the initial extension of credit to the Company hereunder, whether in
the form of Revolving Loans or Letters of Credit.
COLLATERAL shall mean all present and future Accounts, Equipment,
Inventory, Documents of Title, General Intangibles, Investment Property, Other
Collateral and Real Estate (if any) of the Company.
CONSOLIDATED BALANCE SHEET shall mean a consolidated balance sheet for
Parent, the Company and the consolidated subsidiaries of each of them,
eliminating all inter-company transactions and prepared in accordance with GAAP.
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CONSOLIDATING BALANCE SHEET shall mean a Consolidated Balance Sheet plus an
individual balance sheet for the Company, showing all eliminations of
inter-company transactions and prepared in accordance with GAAP.
CUSTOMARILY PERMITTED LIENS shall mean: (a) liens of local or state
authorities for franchise or other like taxes provided the aggregate amount of
such liens shall not exceed $100,000 in the aggregate at any one time; (b)
statutory liens of landlords and liens of carriers, warehousemen, mechanics,
materialmen and other like liens imposed by law, created in the ordinary course
of business and for amounts not yet due (or which are being contested in good
faith by appropriate proceedings or other appropriate actions which are
sufficient to prevent imminent foreclosure of such liens) and with respect to
which adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP; (c) deposits made (and the liens thereon) in the ordinary
course of business (including, without limitation, security deposits for leases,
surety bonds and appeal bonds) in connection with workers' compensation,
unemployment insurance and other types of social security benefits or to secure
the performance of tenders, bids, contracts (other than for the repayment or
guarantee of borrowed money or purchase money obligations), statutory
obligations and other similar obligations arising as a result of progress
payments under government contracts; and (d) easements (including, without
limitation, reciprocal easement agreements and utility agreements),
encroachments, minor defects or irregularities in title, variation and other
restrictions, charges or encumbrances (whether or not recorded) affecting the
Real Estate and which are listed in Schedule B of the title insurance policy
delivered to CITBC herewith.
DEFAULT shall mean any event specified in Section 10 hereof, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, event or act, has been satisfied.
DEFAULT RATE OF INTEREST shall mean a rate of interest per annum equal to
the sum of two percent (2%) and the Chase Manhattan Rate, which CITBC shall be
entitled to charge the Company on all Obligations owed to CITBC by the Company
to the extent provided in Section 10.2 of this Financing Agreement.
DEPOSITORY ACCOUNTS shall mean those accounts owned by CITBC and designated
for the deposit of proceeds of Collateral.
DOCUMENTATION FEES shall mean CITBC's standard fees relating to any and all
modifications, waivers, releases, amendments or additional collateral with
respect to this Financing Agreement, the Collateral and/or the Obligations.
DOCUMENTS OF TITLE shall mean all present and future documents (as defined
in the U.C.C.) including, without limitation, all warehouse receipts, bills of
lading, shipping documents, chattel paper, instruments and similar documents,
all whether negotiable or not, and all goods and Inventory relating thereto and
all cash and non-cash proceeds of the foregoing.
EARLY TERMINATION DATE shall mean any date other than an Anniversary Date
on which the Company terminates this Financing Agreement or the Line of Credit.
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EARLY TERMINATION FEE shall mean the fee that CITBC is entitled to charge
the Company in the event the Company terminates the Line of Credit or this
Financing Agreement on a date prior to any Anniversary Date. If the Company
terminates the Line of Credit or this Financing Agreement in connection with a
sale of either x) all or a controlling interest of the capital stock of the
Company or Parent, y) a sale of all or substantially all of the assets of the
Company to a purchaser unaffiliated with the Company or z) a merger of the
Company or Parent into an entity unaffiliated with the Company and Parent, then
the Early Termination Fee shall be $75,000 if such termination occurs during the
first year following the Closing Date and $50,000 if such termination occurs
during the second year following the Closing Date. If the Company terminates
the Line of Credit or this Financing Agreement in connection with a sale of
either x) all or a controlling interest of the capital stock of the Company or
Parent, y) a sale of substantially all of the assets of the Company to a
purchaser unaffiliated with the Company or z) a merger of the Company or Parent
into an entity unaffiliated with the Company and Parent, then during the third
year or any subsequent year following the Closing Date, then the Early
Termination Fee shall be $100,000. If the Company terminates the Line of Credit
or this Financing Agreement for any reason other than those reasons stated
above, then the Early Termination Fee shall be $300,000 if such termination
occurs during the first year following the Closing Date, $200,000 if such
termination occurs during the second year following the Closing Date and
$100,000 if such termination occurs during the third year or any subsequent year
following the Closing Date.
ELIGIBLE ACCOUNTS RECEIVABLE shall mean the gross amount of the Company's
Trade Accounts Receivable that are subject to a valid, first priority and fully
perfected security interest in favor of CITBC and which conform to the
warranties contained herein and at all times continue to be acceptable to CITBC
in the exercise of its reasonable business judgment, less, without duplication,
the sum of (a) any returns, discounts, claims, credits and allowances of any
nature (whether issued, owing, granted or outstanding) and (b) reserves for: i)
sales to the United States of America or to any agency, department or division
thereof; ii) foreign sales other than sales x) secured by stand-by letters of
credit (in form and substance satisfactory to CITBC in its reasonable business
judgment) issued or confirmed by, and payable at, banks having a place of
business in the United States of America and payable in United States currency,
y) to customers residing in Canada, provided that such sales otherwise comply
with all of the other criteria for eligibility hereunder and are payable in
United States currency or z) of up to $250,000 in the aggregate to foreign
subsidiaries of Ford Motor Company, General Motors Corporation or Chrysler
Corporation, collectively; iii) accounts that remain unpaid more than one
hundred twenty (120) days from invoice date; iv) contras; v) sales to Parent,
any subsidiary, or to any company affiliated (at the time of such sale) with the
Company or Parent in any way; vi) xxxx and hold (deferred shipment) or
consignment sales; vii) sales to any customer which is w) insolvent, x) the
debtor in any bankruptcy, insolvency, arrangement, reorganization, receivership
or similar proceedings under any federal or state law, y) negotiating, or has
called a meeting of its creditors for purposes of negotiating, a compromise of
its debts or z) financially unacceptable to CITBC (in its reasonable business
judgment) or has a credit rating reasonably unacceptable to CITBC; viii) all
sales to any customer if fifty percent (50%) or more of either x) all
outstanding invoices or y) the aggregate dollar amount of all outstanding
invoices, are unpaid more than one hundred twenty (120) days from invoice date;
ix) an amount representing, historically, returns, discounts, claims, credits
and allowances; and x) any other reasons deemed
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necessary by CITBC in its reasonable business judgment, or which are
customary either in the commercial finance industry or in the lending
practices of CITBC.
ELIGIBLE INVENTORY shall mean the gross amount of the Company's Inventory
that is subject to a valid, first priority and fully perfected security interest
in favor of CITBC and which conform to the warranties contained herein and which
at all times continue to be acceptable to CITBC in the exercise of its
reasonable business judgment, LESS any work-in-process, supplies (other than raw
material), goods not present in the United States of America, goods returned or
rejected by the Company's customers (other than goods that are undamaged and
resaleable in the normal course of business), goods to be returned to the
Company's suppliers, and goods in transit to third parties (other than to the
Company's agents or warehouses), and LESS any reserves required by CITBC in its
reasonable discretion for any reason, including, without limitation, reserves
for special order goods, market value declines, goods subject to xxxx and hold
(deferred shipment) or consignment sales, damaged goods, out-of-season goods and
obsolete goods. Eligible Inventory shall not include Inventory in possession of
a warehouseman, bailee or other third party, unless such warehouseman, bailee or
third party has executed a notice of security interest agreement (in form and
substance satisfactory to CITBC) and CITBC has taken all other action required
to perfect its security interest in such Inventory.
EQUIPMENT shall mean all present and hereafter acquired equipment (as
defined in the U.C.C.) including, without limitation, all machinery, equipment,
furnishings and fixtures which do not constitute Inventory under the U.C.C., and
all additions, substitutions and replacements thereof, wherever located,
together with all attachments, components, parts, equipment and accessories
installed thereon or affixed thereto and all proceeds of whatever sort.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time and the rules and regulations promulgated thereunder
from time to time.
EVENT(S) OF DEFAULT shall have the meaning provided for in Section 10 of
this Financing Agreement.
EXISTING LITIGATION shall mean the lawsuits, related proceedings and other
pending or threatened matters described on SCHEDULE 3 attached hereto, in which
the Company and/or Parent are defendants.
GAAP shall mean generally accepted accounting principles in the United
States of America as in effect from time to time and for the period as to which
such accounting principles are to apply.
GENERAL INTANGIBLES shall mean all present and hereafter acquired general
intangibles (as defined in the U.C.C.) including, without limitation, all right,
title and interest in and to all tradenames, trademarks (together with the
goodwill associated therewith), patents, licenses (but only to the extent that
such licenses are assignable by the terms thereof or under applicable law),
customer lists, distribution agreements, supply agreements and tax refunds,
together with all monies and claims for monies now or hereafter due and payable
in connection with any of the foregoing or otherwise, and all cash and non-cash
proceeds thereof.
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INDEBTEDNESS shall mean, without duplication, all liabilities, contingent
or otherwise, which are either (a) obligations in respect of borrowed money or
for the deferred purchase price of property, services or assets, other than
Inventory, or (b) lease obligations which, in accordance with GAAP, have been,
or which should be capitalized.
INVENTORY shall mean all of the Company's present and hereafter acquired
inventory (as defined in the U.C.C.) including, without limitation, all
merchandise, inventory and goods, and all additions, substitutions and
replacements thereof, wherever located, together with all goods and materials
used or usable in manufacturing, processing, packaging or shipping same; in all
stages of production - from raw materials through work-in-process to finished
goods - and all proceeds thereof of whatever sort.
INVENTORY ADVANCE PERCENTAGE shall mean forty percent (40%).
INVENTORY LOAN CAP shall mean $4,000,000.
INVESTMENT PROPERTY shall mean all of the Company's present and hereafter
acquired securities, securities entitlements, securities accounts and other
investment property (as such terms are defined in the U.C.C.).
ISSUING BANK shall mean the bank issuing Letters of Credit for the Company.
LETTERS OF CREDIT shall mean all letters of credit issued with the
assistance of CITBC by the Issuing Bank for or on behalf of the Company.
LETTER OF CREDIT GUARANTY shall mean the guaranty delivered by CITBC to the
Issuing Bank of the Company's reimbursement obligation under the Issuing Bank's
reimbursement agreement, application for letter of credit or other like
document.
LETTER OF CREDIT GUARANTY FEE shall mean the fee CITBC may charge the
Company under Section 8.4 of this Financing Agreement for (a) issuing the Letter
of Credit Guaranty or (b) otherwise aiding the Company in obtaining Letters of
Credit.
LETTER OF CREDIT SUB-LINE shall mean $500,000 in the aggregate.
LIBOR shall mean at any time of determination, and subject to availability,
for each interest period the higher of the applicable London Interbank Offered
rate paid in London on dollar deposits from other banks as (a) quoted by Chase
Manhattan Bank, (b) published under "Money Rates" in the New York City edition
of the Wall Street Journal, or if there is no such publication or statement
therein as to Libor, then in any publication used in the New York City financial
community or (c) determined by CITBC based upon information presented on
Telerate Systems at Page 3750 as of 11:00 a.m. (London Time).
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LIBOR LOAN shall mean those Revolving Loans for which the Company has
elected to use Libor for interest rate computations.
LIBOR PERIOD shall mean the Libor for one month, two month or three month
U.S. dollar deposits, as selected by the Company.
LINE OF CREDIT shall mean the commitment of CITBC to make Revolving Loans
pursuant to Section 3 of this Financing Agreement and to assist the Company in
obtaining Letters of Credit pursuant to Section 5 of this Financing Agreement in
the aggregate amount equal to $10,000,000.
LINE OF CREDIT FEE shall (a) mean the fee due CITBC at the end of each
month for the Line of Credit, and (b) be determined by multiplying i) the
difference between x) the Line of Credit and y) the sum of the average daily
balance of Revolving Loans and the average daily face amount of all Letters of
Credit for said month, by ii) three-eighths of one percent (0.375%) per annum
for the number of days in said month.
LOAN FACILITY FEE shall mean the fee payable to CITBC in accordance with,
and pursuant to, the provisions of Section 8.8 of this Financing Agreement.
NET WORTH shall mean assets in excess of liabilities, determined in
accordance with GAAP, on a consistent basis with the latest audited statements
of the Company.
OBLIGATIONS shall mean all loans and advances made or to be made by CITBC
to the Company or to others for the Company's account (including, without
limitation, all Revolving Loans and all Letters of Credit); any and all
indebtedness and obligations which may at any time be owed to CITBC by the
Company, howsoever arising, whether now in existence or incurred by the Company
from time to time hereafter; whether secured by pledge, lien upon or security
interest in any of the Company's assets or property or the assets or property of
any other person, firm, entity or corporation; whether such indebtedness is
absolute or contingent, joint or several, matured or unmatured, direct or
indirect and whether the Company is liable to CITBC for such indebtedness as
principal, surety, endorser, guarantor or otherwise. Obligations shall also
include indebtedness owed to CITBC by the Company under this Financing Agreement
or under any other agreement or arrangement now or hereafter entered into
between the Company and CITBC; indebtedness or obligations incurred by, or
imposed on, CITBC as a result of environmental claims arising out of the
Company's operation, premises or waste disposal practices or sites; the
Company's liability to CITBC as maker or endorser on any promissory note or
other instrument for the payment of money; the Company's liability to CITBC
under any instrument of guaranty or indemnity, or arising under any guaranty,
endorsement or undertaking which CITBC may make or issue to others for the
Company's account, including any accommodation extended with respect to
applications for Letters of Credit, CITBC's acceptance of drafts or CITBC's
endorsement of notes or other instruments for the Company's account and benefit.
OPERATING LEASES shall mean all leases of property (whether real, personal
or mixed) other than Capital Leases.
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OTHER COLLATERAL shall mean: (a) all now owned and hereafter acquired
deposit accounts maintained by or on behalf of the Company with any bank or
financial institution; (b) all of the Company's cash and other monies and
property in the possession or control of CITBC; (c) all of the Company's books,
records, ledger cards, disks and related data processing software at any time
evidencing or containing information relating to any of the Collateral described
herein or otherwise necessary or helpful in the collection thereof or
realization thereon; and (d) all cash and non-cash proceeds of the foregoing.
OUT-OF-POCKET EXPENSES shall mean all of CITBC's present and future
expenses incurred relative to this Financing Agreement, whether incurred
heretofore or hereafter, which expenses shall include, without being limited to,
the cost of record searches, all costs and expenses incurred by CITBC in opening
bank accounts, depositing checks, receiving and transferring funds, and any
charges imposed on CITBC due to "insufficient funds" of deposited checks and
CITBC's standard fee relating thereto, any amounts paid by, incurred by or
charged to CITBC by the Issuing Bank under the Letter of Credit Guaranty or the
Company's reimbursement agreement, application for Letter of Credit or other
like document which pertain either directly or indirectly to such Letters of
Credit, and CITBC's standard fees relating to the Letters of Credit and any
drafts thereunder, local counsel fees, fees and taxes relative to the filing of
financing statements, and all expenses, costs and fees set forth in Section 10.3
of this Financing Agreement.
PARENT shall mean Binks Xxxxx Corporation, a Delaware corporation and the
owner of 100% of the issued and outstanding capital stock of the Company.
PERMITTED ENCUMBRANCES shall mean: (a) liens existing on the date hereof on
specific items of Equipment and listed on SCHEDULE 1 hereto and other liens
expressly permitted, or consented to, by CITBC; (b) Purchase Money Liens; (c)
Customarily Permitted Liens; (d) liens granted to CITBC by the Company; (e)
liens of judgment creditors provided such liens do not exceed, in the aggregate,
at any time, $50,000 (other than liens bonded or insured to the reasonable
satisfaction of CITBC); and (f) liens for taxes not yet due and payable or which
are being diligently contested in good faith by the Company by appropriate
proceedings and which liens are not i) other than with respect to Real Estate,
senior to the liens of CITBC or ii) for taxes due the United States of America.
PERMITTED INDEBTEDNESS shall mean: (a) current indebtedness maturing in
less than one year and incurred in the ordinary course of business for raw
materials, supplies, equipment, services, taxes or labor; (b) the indebtedness
secured by the Purchase Money Liens; (c) indebtedness arising under the Letters
of Credit and this Financing Agreement; (d) deferred taxes and other expenses
incurred in the ordinary course of business; (e) obligations incurred by the
Company in connection with the settlement or other disposition of the Existing
Litigation; and (f) other indebtedness existing on the date of execution of this
Financing Agreement and listed in the most recent financial statement delivered
to CITBC or otherwise disclosed to CITBC in writing.
PURCHASE MONEY LIENS shall mean liens on any item of Equipment acquired
after the date of this Financing Agreement, provided that (a) each such lien
shall attach only to the Equipment to be acquired, (b) a description of the
Equipment so acquired is furnished to CITBC, and (c) the debt
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incurred in connection with such acquisitions shall not exceed in the
aggregate $200,000 in any fiscal year.
REAL ESTATE shall mean the Company's fee and/or leasehold interests in
real property, if any, which has been, or will be, encumbered, mortgaged,
pledged or assigned to CITBC or its designee.
REVOLVING LOANS shall mean the loans and advances made from time to time
to or for the account of the Company by CITBC pursuant to Section 3 of this
Financing Agreement.
REVOLVING LOAN ACCOUNT shall have the meaning specified in Section 3.6
of this Financing Agreement.
TRADE ACCOUNTS RECEIVABLE shall mean that portion of Accounts which
arises from the sale of Inventory or the rendition of services in the
ordinary course of business.
U.C.C. shall mean the Uniform Commercial Code as in effect from time to
time in the State of Illinois.
SECTION 2. CONDITIONS PRECEDENT
2.1 The obligation of CITBC to make loans hereunder is subject to the
satisfaction of, or waiver of, immediately prior to or concurrently with the
making of such loans, the following conditions precedent:
(a) LIEN SEARCHES - CITBC shall have received tax, judgment and Uniform
Commercial Code searches satisfactory to CITBC for all locations presently
occupied or used by the Company.
(b) CASUALTY INSURANCE - The Company shall have delivered to CITBC
evidence satisfactory to CITBC that casualty insurance policies listing CITBC
as loss payee or mortgagee, as the case may be, are in full force and effect,
all as set forth in paragraph (a) of Section 7.5 of this Financing Agreement.
(c) UCC FILINGS - Any documents (including without limitation,
financing statements) required to be filed any office of any jurisdiction in
order to create, in favor of CITBC, a first and exclusive perfected security
interest in the Collateral with respect to which a security interest may be
perfected by a filing under the U.C.C., shall have been properly filed.
CITBC shall have received acknowledgement copies of all such filings (or, in
lieu thereof, CITBC shall have received other evidence satisfactory to CITBC
that all such filings have been made); and CITBC shall have received evidence
that all necessary filing fees, taxes and other expenses related to such
filings have been paid in full.
(d) GUARANTY OF PARENT - Parent shall have executed and delivered to
CITBC a guaranty agreement in form acceptable to CITBC, guaranteeing all of
the Obligations.
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(e) OPINION - Subject to the filing, priority and remedies provisions
of the Uniform Commercial Code, the provisions of the Bankruptcy Code,
insolvency statutes or other like laws, the equity powers of a court of law
and such other matters as may be agreed upon with CITBC, counsel for the
Company and Parent shall have delivered to CITBC opinion(s) satisfactory to
CITBC opining, INTER ALIA, that: this Financing Agreement, the guaranty
agreement executed by Parent and all other documents executed by the Company
and delivered to CITBC in connection with this Financing Agreement are
x) valid, binding and enforceable according to their respective terms, y) duly
authorized and z) do not violate any terms, provisions, representations or
covenants in the charter, by-laws or other organizational agreement of the
Company or Parent or, to the best knowledge of such counsel, of any loan
agreement, mortgage, deed of trust, note, security or pledge agreement or
indenture to which the Company or Parent is a signatory or by which the
Company, Parent or any of the Company's or Parent's respective assets are
bound.
(f) ADDITIONAL DOCUMENTS - The Company shall have executed and
delivered to CITBC all loan documents necessary to consummate the lending
arrangement contemplated between the Company and CITBC.
(g) BOARD RESOLUTIONS - CITBC shall have received a copy of the
resolutions of the Board of Directors of the Company and Parent (as the case
may be) authorizing the execution, delivery and performance of i) this
Financing Agreement, ii) the guaranty agreement executed by Parent and iii) any
related agreements, in each case certified by the Secretary or Assistant
Secretary of the Company and Parent (as the case may be) as of the date
hereof, together with a certificate of the Secretary or Assistant Secretary
of the Company and Parent (as the case may be) as to the incumbency and
signature of the officers executing such agreements and any certificate or
other documents to be delivered by them pursuant hereto.
(h) CORPORATE ORGANIZATION - CITBC shall have received i) a copy of the
Certificate of Incorporation (or other organizational documents) of each of
the Company and Parent, certified by the applicable authority in such
entity's State of organization, and ii) copies of the by-laws (as amended
through the date hereof), if any, of the Company and Parent, certified by the
Secretary or Assistant Secretary thereof.
(i) OFFICER'S CERTIFICATE - CITBC shall have received an executed
Officer's Certificate of the Company, satisfactory in form and substance to
CITBC, certifying that i) the representations and warranties contained herein
are true and correct in all material respects on and as of the date hereof,
ii) the Company is in compliance with all of the terms and provisions set
forth herein and iii) no Default or Event of Default has occurred.
(j) ABSENCE OF DEFAULT - No Default, Event of Default or material
adverse change in the financial condition, business, prospects, profits,
operations or assets of the Company shall have occurred.
(k) ITW SALE - i) Parent shall have consummated the sale of the assets
of certain of its subsidiaries to Illinois Tool Works Inc., ii) the Company
shall have delivered to CITBC a fully executed copy of the sale and purchase
agreement and related documents with respect to such sale,
10
and iii) after CITBC's review of such documents, CITBC shall be satisfied
with the ongoing liabilities of the Company and/or Parent to the purchaser
thereunder. In addition, CITBC shall be satisfied with the terms and
conditions of any ongoing contractual agreements between the Company and
Illinois Tool Works Inc.
(l) LEGAL RESTRAINTS/LITIGATION - At the date of execution of this
Financing Agreement, CITBC shall confirm to its satisfaction that there is no
i) litigation, investigation or proceeding (judicial or administrative)
pending or threatened against the Company or Parent or their respective
assets, by any agency, division or department of any county, city, state or
federal government, ii) injunction, writ or restraining order restraining or
prohibiting the Acquisition and/or the Merger or the consummation of the
financing arrangements contemplated under this Financing Agreement or
iii) suit, action, investigation or proceeding (judicial or administrative)
pending or threatened against the Company or Parent or their respective
assets, other than the Existing Litigation.
(m) DISBURSEMENT AUTHORIZATION - The Company shall have delivered to
CITBC all information necessary for CITBC to issue wire transfer instructions
on behalf of the Company for the initial and subsequent loans and/or advances
to be made under this Financing Agreement including, but not limited to,
disbursement authorizations in form acceptable to CITBC.
(n) EXAMINATION & VERIFICATION; AVAILABILITY - CITBC shall have
completed to the satisfaction of CITBC an update of its examination and
verification of the Accounts, Inventory, books and records of the Company.
(o) COLLECTION ACCOUNTS - CITBC shall have opened a bank account in
its name for the collection of the Company's Accounts and the deposit of the
proceeds of the Collateral, and CITBC, the Company and the depository bank
shall have entered into an agreement in form and substance satisfactory to
CITBC regarding the administration and control of such bank account.
(p) EXISTING REVOLVING CREDIT AGREEMENT - i) all loans of the Company
and Parent under the existing credit agreement with The First National Bank
of Chicago, as agent, shall have been paid or satisfied in full and ii) CITBC
shall confirm that all liens upon or security interests in favor of The First
National Bank of Chicago, as agent, in connection therewith shall have been
terminated and/or released.
(q) PLEDGE OF COMPANY'S CAPITAL STOCK - Parent shall have executed and
delivered to CITBC i) a pledge agreement in form and substance reasonably
satisfactory to CITBC, pursuant to which Parent pledges to CITBC all of the
issued and outstanding capital stock of the Company to secure the
Obligations, and ii) blank stock powers covering all such capital stock. In
addition, Parent shall have delivered to CITBC all original certificates
evidencing such capital stock.
2.2 Upon the execution of this Financing Agreement and the initial
disbursement of loans hereunder, all of the above conditions precedent shall
have been deemed satisfied except as the Company and CITBC shall otherwise
agree herein or in a separate writing.
11
SECTION 3. REVOLVING LOANS
3.1 CITBC agrees, subject to the terms and conditions of this Financing
Agreement from time to time, and within the Availability and the Line of
Credit, but subject to CITBC's right to make "overadvances", to make loans
and advances to the Company on a revolving basis (i.e. subject to the
limitations set forth herein, the Company may borrow, repay and re-borrow
Revolving Loans). Such loans and advances shall be in amounts up to the
Borrowing Base. Each request shall constitute, unless otherwise disclosed in
writing to CITBC, a representation and warranty by the Company that after
giving effect to the requested advance, no Default or Event of Default has
occurred, and that such requested Revolving Loan is within the Line of Credit
and Availability. All requests for loans and advances must be received by an
officer of CITBC no later than 1:00 p.m., New York time, of the Business Day
on which such loans and advances are required. Should CITBC for any reason
honor requests for advances in excess of the limitations set forth herein,
such advances shall be considered "overadvances" and shall be made in CITBC's
sole discretion, subject to any additional terms CITBC deems necessary.
3.2 In furtherance of the continuing assignment and security interest
in the Company's Accounts, the Company will, upon the creation of Accounts,
execute and deliver to CITBC in such form and manner as CITBC may reasonably
require, solely for CITBC's convenience in maintaining records of collateral,
such confirmatory schedules of Accounts as CITBC may reasonably request, and
such other appropriate reports designating, identifying and describing the
Accounts as CITBC may reasonably require. In addition, upon CITBC's request
the Company shall provide CITBC with copies of agreements with, or purchase
orders from, the Company's customers, and copies of invoices to customers,
proof of shipment or delivery and such other documentation and information
relating to said Accounts and other collateral as CITBC may reasonably
require. Failure to provide CITBC with any of the foregoing shall in no way
affect, diminish, modify or otherwise limit the security interests granted
herein. The Company hereby authorizes CITBC to regard the Company's printed
name or rubber stamp signature on assignment schedules or invoices as the
equivalent of a manual signature by one of the Company's authorized officers
or agents.
3.3 The Company hereby represents and warrants that: (a) each Trade
Account Receivable is based on an actual and bona fide sale and delivery of
goods or rendition of services to customers, made by the Company in the
ordinary course of its business; (b) the Inventory being sold and the Trade
Accounts Receivable created are the exclusive property of the Company and are
not and shall not be subject to any lien, consignment arrangement,
encumbrance, security interest or financing statement whatsoever, other than
the Permitted Encumbrances; (c) the invoices evidencing such Trade Accounts
Receivable are in the name of the Company; and (d) the customers of the
Company have accepted the goods or services, owe and are obligated to pay the
full amounts stated in the invoices according to their terms, without
dispute, offset, defense, counterclaim or contra, except for disputes and
other matters arising in the ordinary course of business of which the Company
has advised CITBC pursuant to Section 3.5 hereof. The Company confirms to
CITBC that any and all taxes or fees relating to its business, its sales, the
Accounts or goods relating thereto, are its sole responsibility and that same
will be paid by the Company when due and that none of said taxes or fees
represent a lien on or claim against the Accounts. The Company also warrants
and represents that it is a duly and validly existing corporation and is
qualified in all states where the failure to so
12
qualify would have an adverse effect on the business of the Company or the
ability of the Company to enforce collection of Accounts due from customers
residing in that state. The Company agrees to maintain such books and
records regarding Accounts as CITBC may reasonably require and agrees that
the books and records of the Company will reflect CITBC's interest in the
Accounts. All of the books and records of the Company will be available to
CITBC at normal business hours, including any records handled or maintained
for the Company by any other company or entity.
3.4 The Company may and will enforce, collect and receive all amounts
owing on the Accounts for CITBC's benefit and on CITBC's behalf, but at the
Company's expense, however, such privilege shall terminate automatically upon
the institution by the Company of any proceeding under any bankruptcy or
insolvency law (or thirty (30) days after the institution against the Company
of any involuntary proceeding under any bankruptcy or insolvency law, if such
involuntary proceeding is not dismissed or discharged prior to such date) or,
at the election of CITBC, upon the occurrence of any other Event of Default
and until such Event of Default is waived. Any checks, cash, notes or other
instruments or property received by the Company with respect to any Accounts
shall be held by the Company in trust for CITBC, separate from the Company's
own property and funds, and immediately deposited into a Depository Account.
All amounts received by CITBC in payment of Accounts will be credited to the
Company's Revolving Loan Account upon CITBC's receipt of "collected funds" at
CITBC's bank account in New York, New York on the Business Day of receipt if
received no later than 1:00 pm or on the next succeeding Business Day if
received after 1:00 pm. No checks, drafts or other instrument received by
CITBC shall constitute final payment to CITBC unless and until such
instruments have actually been collected.
3.5 The Company agrees to notify CITBC promptly of any matters
materially affecting the value, enforceability or collectibility of any
Account and of all material customer disputes, offsets, defenses,
counterclaims, returns, rejections and all reclaimed or repossessed
merchandise or goods. The Company agrees to issue credit memoranda promptly
(with duplicates to CITBC upon request after the occurrence of an Event of
Default) upon accepting returns or granting allowances, and may continue to
do so until CITBC has notified the Company that an Event of Default has
occurred and that all future credits or allowances are to be made only after
CITBC's prior written approval. Upon the occurrence of an Event of Default
and until such time as such Event of Default is waived, and on notice from
CITBC, the Company agrees that all returned, reclaimed or repossessed
merchandise or goods shall be set aside by the Company, marked with CITBC's
name and held by the Company for CITBC's account as owner and assignee.
3.6 CITBC shall maintain a separate account on its books in the
Company's name (the "Revolving Loan Account") in which the Company will be
charged with loans and advances made by CITBC to it or for its account, and
with any other Obligations, including any and all costs, expenses and
reasonable attorney's fees which CITBC may incur in connection with the
exercise by or for CITBC of any of the rights or powers herein conferred upon
CITBC, or in the prosecution or defense of any action or proceeding to
enforce or protect any rights of CITBC in connection with this Financing
Agreement or the Collateral assigned hereunder, or any of the Obligations.
The Company will be credited with all amounts received by CITBC from the
Company or from others for the Company's account, including, as above set
forth, all amounts received by CITBC in payment of assigned Accounts and such
amounts will be applied to payment of the Obligations. In no event
13
shall prior recourse to any Accounts or other security granted to or by the
Company be a prerequisite to CITBC's right to demand payment of any of the
Obligations. Further, it is understood that CITBC shall have no obligation
whatsoever to perform in any respect any of the Company's contracts or
obligations relating to the Accounts.
3.7 After the end of each month, CITBC shall promptly send the Company
a statement showing the accounting for the charges, loans, advances and other
transactions occurring between CITBC and the Company during that month. The
monthly statements shall be deemed correct and binding upon the Company and
shall constitute an account stated between the Company and CITBC unless CITBC
receives a written statement of the exceptions within thirty (30) days of the
date of the monthly statement.
3.8 In the event that (a) the sum of i) the outstanding balance of
Revolving Loans and ii) outstanding balance of Letters of Credit exceeds
(b) either i) the maximum amount thereof available under Sections 3 and
5 hereof or ii) the Line of Credit (herein the amount of any such excess
shall be referred to as the "Excess"), such Excess immediately shall be due
and payable to CITBC without notice of or demand therefor.
SECTION 4. [INTENTIONALLY DELETED]
SECTION 5. LETTERS OF CREDIT
In order to assist the Company in establishing or opening Letters of
Credit with an Issuing Bank to cover the purchase of imported Inventory,
Equipment or otherwise, the Company has requested CITBC to join in the
applications for such Letters of Credit, and/or guarantee payment or
performance of such Letters of Credit and any drafts or acceptances
thereunder through the issuance of a Letter of Credit Guaranty, thereby
lending CITBC's credit to the Company and CITBC has agreed to do so. These
arrangements shall be handled by CITBC subject to the terms and conditions
set forth below.
5.1 Within the Line of Credit and Availability, CITBC shall assist the
Company in obtaining Letters of Credit in an aggregate amount outstanding at
any time equal to or less than Letter of Credit Sub-Line. CITBC's assistance
for amounts in excess of the limitation set forth herein shall at all times
and in all respects be in CITBC's sole discretion. It is understood that the
terms, conditions and purpose of each Letter of Credit (and any modifications
thereof) shall be subject to the prior approval of CITBC in the exercise of
its reasonable discretion. Any and all outstanding Letters of Credit shall
be treated as a Revolving Loan for Availability purposes. Notwithstanding
anything herein to the contrary, upon the occurrence of a Default and/or
Event of Default, CITBC's assistance in connection with any Letter of Credit
Guaranty shall be in CITBC's sole discretion unless such Default and/or Event
of Default is waived.
5.2 CITBC shall have the right, without notice to the Company, to
charge the Company's Revolving Loan Account with the amount of any and all
indebtedness, liability or obligation of any kind incurred by CITBC under any
Letter of Credit Guaranty at the earlier of (a) payment by CITBC under such
Letter of Credit Guaranty, or (b) the occurrence of an Event of Default. Any
amount
14
charged to Company's Revolving Loan Account shall be deemed a Revolving Loan
hereunder and shall incur interest at the rate provided in Section 8.1 of
this Financing Agreement.
5.3 The Company unconditionally indemnifies CITBC and holds CITBC
harmless from any and all loss, claim or liability incurred by CITBC arising
from any transactions or occurrences relating to Letters of Credit
established or opened for the Company's account, the collateral relating
thereto and any drafts or acceptances thereunder, and all Obligations
thereunder, including any such loss or claim due to any action taken by any
Issuing Bank, other than for any such loss, claim or liability arising out of
the gross negligence or willful misconduct by CITBC under the Letters of
Credit Guaranty. The Company further agrees to hold CITBC harmless from any
errors or omission, negligence or misconduct by the Issuing Bank. The
Company's unconditional obligation to CITBC hereunder shall not be modified
or diminished for any reason or in any manner whatsoever, other than as a
result of CITBC's gross negligence or willful misconduct. The Company agrees
that any charges incurred by CITBC for the Company's account by the Issuing
Bank shall be conclusive on CITBC and may be charged to the Company's
Revolving Loan Account.
5.4 CITBC shall not be responsible for: (a) the existence, character,
quality, quantity, condition, packing, value or delivery of the goods
purporting to be represented by any documents; (b) any difference or
variation in the character, quality, quantity, condition, packing, value or
delivery of the goods from that expressed in the documents; (c) the validity,
sufficiency or genuineness of any documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (d) the time, place, manner or
order in which shipment is made; (e) partial or incomplete shipment, or
failure or omission to ship any or all of the goods referred to in the
Letters of Credit or documents; (f) any deviation from instructions; (g) delay,
default, or fraud by the shipper and/or anyone else in connection with the
Collateral or the shipping thereof; or (h) any breach of contract between the
shipper or vendors and the Company. Furthermore, without being limited by
the foregoing, CITBC shall not be responsible for any act or omission with
respect to or in connection with any Collateral.
5.5 The Company agrees that any action taken by CITBC, if taken in good
faith, or any action taken by any Issuing Bank, under or in connection with
the Letters of Credit, the guarantees, the drafts or acceptances, or the
Collateral, shall be binding on the Company and shall not put CITBC in any
resulting liability to the Company. In furtherance thereof but subject to
Section 5.6 below, CITBC shall have the full right and authority to clear and
resolve any questions of non-compliance of documents; to give any
instructions as to acceptance or rejection of any documents or goods; to
execute any and all steamship or airways guaranties (and applications
therefor), indemnities or delivery orders; to grant any extensions of the
maturity of, time of payment for, or time of presentation of, any drafts,
acceptances, or documents; and to agree to any amendments, renewals,
extensions, modifications, changes or cancellations of any of the terms or
conditions of any of the applications, Letters of Credit, drafts or
acceptances; all in CITBC's sole name, and the Issuing Bank shall be entitled
to comply with and honor any and all such documents or instruments executed
by or received solely from CITBC, all without any notice to or any consent
from the Company.
15
5.6 Without CITBC's express consent and endorsement in writing, the
Company agrees: (a) not to execute any and all applications for steamship or
airway guaranties, indemnities or delivery orders; to grant any extensions of
the maturity of, time of payment for, or time of presentation of, any drafts,
acceptances or documents; or to agree to any amendments, renewals,
extensions, modifications, changes or cancellations of any of the terms or
conditions of any of the applications, Letters of Credit, drafts or
acceptances; and (b) after the occurrence of an Event of Default which is not
waived, not to i) clear and resolve any questions of non-compliance of
documents or ii) give any instructions as to acceptances or rejection of any
documents or goods.
5.7 The Company agrees that any necessary import, export or other
licenses or certificates for the import or handling of the Collateral will
have been promptly procured; all foreign and domestic governmental laws and
regulations in regard to the shipment and importation of the Collateral, or
the financing thereof will have been promptly and full complied with; and any
certificates in that regard that CITBC may at any time request will be
promptly furnished. The Company assumes all risk, liability and
responsibility for, and agrees to pay and discharge, all present and future
local, state, federal or foreign taxes, duties, or levies. Any embargo,
restriction, laws, customs or regulations of any country, state, city, or
other political subdivision, where the Collateral is or may be located, or
wherein payments are to be made, or wherein drafts may be drawn, negotiated,
accepted, or paid, shall be solely the Company's risk, liability and
responsibility.
5.8 Upon any payments made to the Issuing Bank under the Letter of
Credit Guaranty, CITBC shall acquire by subrogation, any rights, remedies,
duties or obligations granted or undertaken by the Company to the Issuing
Bank in any application for Letters of Credit, any standing agreement
relating to Letters of Credit or otherwise, all of which shall be deemed to
have been granted to CITBC and apply in all respects to CITBC and shall be in
addition to any rights, remedies, duties or obligations contained herein.
SECTION 6. COLLATERAL
6.1 As security for the prompt payment in full of all loans and
advances made and to be made to the Company from time to time by CITBC
pursuant hereto, as well as to secure the payment in full of the other
Obligations, the Company hereby pledges and grants to CITBC a continuing
general lien upon and security interest in all of its:
(a) present and hereafter acquired Inventory;
(b) present and hereafter acquired Equipment;
(c) present and future Accounts;
(d) present and future Documents of Title;
(e) present and future General Intangibles;
(f) present and future Investment Property;
16
(g) present and future Other Collateral; and
(h) Real Estate, if any.
6.2 The security interests granted hereunder shall extend and attach to:
(a) All Collateral which is presently in existence and which is owned
by the Company or in which the Company has any interest, whether held by the
Company or others for its account, and, if any Collateral is Equipment,
whether the Company's interest in such Equipment is as owner or lessee or
conditional vendee;
(b) All Equipment whether the same constitutes personal property or
fixtures, including, but without limiting the generality of the foregoing,
all dies, jigs, tools, benches, tables, accretions, component parts thereof
and additions thereto, as well as all accessories, motors, engines and
auxiliary parts used in connection with or attached to the Equipment; and
(c) All Inventory and any portion thereof which may be returned,
rejected, reclaimed or repossessed by either CITBC or the Company from the
Company's customers, as well as to all supplies, goods, incidentals,
packaging materials, labels and any other items which contribute to the
finished goods or products manufactured or processed by the Company, or to
the sale, promotion or shipment thereof.
6.3 The Company agrees to safeguard, protect and hold all Inventory for
CITBC's account and make no disposition thereof except in the regular course
of the business of the Company as herein provided. Inventory may be sold and
shipped by the Company to its customers in the ordinary course of the
Company's business, on open account and on terms currently being extended by
the Company to its customers, provided that all proceeds of all sales
(including cash, accounts receivable, checks, notes, instruments for the
payment of money and similar proceeds) are forthwith transferred, endorsed,
and turned over and delivered to CITBC by deposit in the Depository Accounts.
CITBC shall have the right to withdraw this permission at any time upon the
occurrence of an Event of Default and until such time as such Event of
Default is waived, in which event no further disposition shall be made of the
Inventory by the Company without CITBC's prior written approval. Cash sales
or sales of Inventory in which a lien upon, or security interest in,
Inventory is retained by the Company shall be made by the Company only with
the approval of CITBC, and the proceeds of such sales or sales of Inventory
for cash shall not be commingled with the Company's other property, but shall
be segregated, held by the Company in trust for CITBC as CITBC's exclusive
property, and shall be delivered immediately by the Company to CITBC in the
identical form received by the Company by deposit to the Depository Accounts.
Upon the sale, exchange, or other disposition of Inventory, as herein
provided, the security interest in the Company's Inventory provided for
herein shall, without break in continuity and without further formality or
act, continue in, and attach to, all proceeds, including any instruments for
the payment of money, accounts receivable, contract rights, documents of
title, shipping documents, chattel paper and all other cash and non-cash
proceeds of such sale, exchange or disposition. As to any such sale,
exchange or other disposition, CITBC shall have all of the rights of an unpaid
seller, including stoppage in transit,
17
replevin, rescission and reclamation. The provisions of this Section 6.3
shall not apply to Inventory consisting of sheet metal situated at locations
operated by Illinois Tool Works Inc. or any affiliate thereof.
6.4 The Company agrees at its own cost and expense to keep the
Equipment in as good and substantial repair and condition as the same is now
or at the time the lien and security interest granted herein shall attach
thereto, reasonable wear and tear excepted, making any and all repairs and
replacements when and where necessary. The Company also agrees to safeguard,
protect and hold all Equipment for CITBC's account and make no disposition
thereof unless the Company first obtains the prior written approval of CITBC.
Any sale, exchange or other disposition of any Equipment shall only be made
by the Company with the prior written approval of CITBC, and the proceeds of
any such sales shall not be commingled with the Company's other property, but
shall be segregated, held by the Company in trust for CITBC as CITBC's
exclusive property, and shall be delivered immediately by the Company to
CITBC in the identical form received by the Company by deposit to a
Depository Account. Upon the sale, exchange, or other disposition of the
Equipment, as herein provided, the security interest provided for herein
shall, without break in continuity and without further formality or act,
continue in, and attach to, all proceeds, including any instruments for the
payment of money, accounts receivable, contract rights, documents of title,
shipping documents, chattel paper and all other cash and non-cash proceeds of
such sales, exchange or disposition. As to any such sale, exchange or other
disposition, CITBC shall have all of the rights of an unpaid seller,
including stoppage in transit, replevin, rescission and reclamation.
Notwithstanding anything set forth herein to the contrary, the Company may
sell, exchange or otherwise dispose of obsolete Equipment or Equipment no
longer needed in the Company's operations, provided that (a) the then net
book value of the Equipment so disposed of does not exceed $200,000 in the
aggregate in any fiscal year and (b) the proceeds of such sales or
dispositions are delivered to CITBC in accordance with he foregoing
provisions of this Section 6.4, except that the Company may retain and use
such proceeds to purchase forthwith replacement Equipment which the Company
determines in its reasonable business judgment to have a collateral value at
least equal to the Equipment so disposed of or sold, and provided further
that the aforesaid right shall automatically cease upon the occurrence of an
Event of Default which is not waived.
6.5 The rights and security interests granted to CITBC hereunder are to
continue in full force and effect, notwithstanding the termination of this
Financing Agreement or the fact that the account maintained in the Company's
name on the books of CITBC may from time to time be temporarily in a credit
position, until the final payment in full to CITBC of all Obligations and the
termination of this Financing Agreement. Any delay, or omission by CITBC to
exercise any right hereunder, shall not be deemed a waiver thereof, or be
deemed a waiver of any other right, unless such waiver be in writing and
signed by CITBC. A waiver on any one occasion shall not be construed as a
bar to or waiver of any right or remedy on any future occasion.
6.6 To the extent that the Obligations are now or hereafter secured by
any assets or property other than the Collateral or by the guarantee,
endorsement, assets or property of any other person, then CITBC shall have
the right in its sole discretion to determine which rights, security, liens,
security interests or remedies CITBC shall at any time pursue, foreclose
upon, relinquish,
18
subordinate, modify or take any other action with respect to, without in any way
modifying or affecting any of them, or any of CITBC's rights hereunder.
6.7 Any reserves or balances to the credit of the Company and any other
property or assets of the Company in the possession of CITBC may be held by
CITBC as security for any Obligations and applied in whole or partial
satisfaction of such Obligations when due. The liens and security interests
granted herein and any other lien or security interest CITBC may have in any
other assets of the Company, shall secure payment and performance of all now
existing and future Obligations. CITBC may in its discretion charge any or all
of the Obligations to the Company's Revolving Loan Account when due.
6.8 The Company shall give to CITBC from time to time such mortgage(s),
deed(s) of trust or assignment(s) covering the real estate acquired in fee after
the date hereof as CITBC shall require to obtain a valid first lien thereon.
6.9 The Company shall give to CITBC, and/or shall cause the appropriate
party to give to CITBC, from time to time such pledge or security agreements
with respect to General Intangibles and capital stock of the Company and any and
all subsidiaries of the Company as CITBC shall require to obtain valid first
liens thereon.
SECTION 7. REPRESENTATIONS, WARRANTIES AND COVENANTS
7.1 The Company hereby warrants and represents and/or covenants that: (a)
the fair value of the Company's assets exceeds the book value of the Company's
liabilities; (b) the Company is generally able to pay its debts as they become
due and payable; (c) the Company does not have unreasonably small capital to
carry on its business as it is currently conducted absent extraordinary and
unforeseen circumstances; (d) SCHEDULE 2 hereto correctly and completely sets
forth the Company's chief executive office, all of the Collateral locations and
all tradenames of the Company; (e) except for the Permitted Encumbrances, the
security interests granted herein constitute and shall at all times constitute
the first and exclusive liens on the Collateral; (f) except for the Permitted
Encumbrances, the Company is or will be at the time additional Collateral is
acquired by it, the absolute owner of the Collateral with full right to pledge,
sell, consign, transfer and create a security interest therein, free and clear
of any and all claims or liens in favor of others; (g) the Company will at its
expense forever warrant and, at CITBC's request, defend the same from any and
all claims and demands of any other person other than the Permitted
Encumbrances; (h) the Company will not grant, create or permit to exist, any
lien upon or security interest in the Collateral, or any proceeds thereof, in
favor of any other person other than the holders of the Permitted Encumbrances;
(i) the Equipment does not comprise a part of the Inventory of the Company and
that the Equipment is and will only be used by the Company in its business and
will not be held for sale or lease, or removed from its premises, or otherwise
disposed of by the Company without the prior written approval of CITBC, except
as otherwise permitted in Section 6.4 of this Financing Agreement; (j) the
execution and delivery of this Financing Agreement by the Company and the
performance of its obligations hereunder do not violate any terms, provisions,
representations or covenants in the charter, by-laws or other organizational
agreement of the Company, or any loan agreement, mortgage, deed of trust, note,
security or pledge agreement or indenture to which the Company is a signatory or
by which
19
the Company or any of the Company's assets are bound; and (k) except for the
Existing Litigation, there is no litigation pending or threatened against the
Company.
7.2 The Company agrees to maintain books and records pertaining to the
Collateral in such detail, form and scope as CITBC shall reasonably require.
The Company agrees that CITBC or its agents may enter upon the Company's
premises at any time during normal business hours, and from time to time, for
the purpose of inspecting the Collateral, and any and all records pertaining
thereto. The Company agrees to afford CITBC prior written notice of any change
in the location of any Collateral, other than to locations, that as of the date
hereof, are known to CITBC and at which CITBC has filed financing statements and
otherwise fully perfected its liens thereon. The Company is also to advise
CITBC promptly, in sufficient detail, of any material adverse change relating to
the type, quantity or quality of the Collateral or on the security interests
granted to CITBC therein.
7.3 The Company agrees to execute and deliver to CITBC, from time to time,
solely for CITBC's convenience in maintaining a record of the Collateral, such
written statements, schedules and other information and documentation as CITBC
may reasonably require, designating, identifying or describing the Collateral
pledged to CITBC hereunder. Without limiting the foregoing, the Company shall
provide CITBC with the following items, in such detail as CITBC shall reasonably
require: (a) at least once each week but more frequently upon CITBC's request, a
borrowing base certificate, certified by the chief financial officer of the
Company or another officer of the Company acceptable to CITBC; (b) on or before
the 15th day of each month, an aged trial balance of all Accounts existing as of
the last day of the preceding month; and (c) on or before the 15th day of each
month, a summary of Inventory as of the last day of the preceding month,
certified by the chief financial officer of the Company. The Company's failure,
however, to promptly give CITBC such statements or schedules shall not affect,
diminish, modify or otherwise limit CITBC's security interests in the
Collateral.
7.4 The Company agrees to comply with the requirements of all state and
federal laws in order to grant to CITBC valid and perfected first security
interests in the Collateral, subject only to the Permitted Encumbrances. CITBC
is hereby authorized by the Company to file any financing statements covering
the Collateral whether or not the Company's signature appears thereon. The
Company agrees to do whatever CITBC may reasonably request, from time to time,
by way of: (a) filing notices of liens, financing statements, amendments,
renewals and continuations thereof; (b) cooperating with CITBC's agents and
employees; (c) keeping Collateral records; (d) transferring proceeds of
Collateral to CITBC's possession; and (e) performing such further acts as CITBC
may reasonably require in order to effect the purposes of this Financing
Agreement.
7.5 (a) The Company agrees to maintain insurance on the Inventory and
other Collateral under such policies of insurance, with such insurance
companies, in such reasonable amounts and covering such insurable risks as are
at all times reasonably satisfactory to CITBC (the (the "Required Insurance").
All policies covering the Collateral are, subject to the rights of any holders
of Permitted Encumbrances holding claims senior to CITBC, to be made payable to
CITBC, in case of loss, under a standard non-contributory "mortgagee", "lender"
or "secured party" clause and are to contain such other provisions as CITBC may
require to fully protect CITBC's interest in Collateral and to any payments to
be made under such policies. All original policies or true copies thereof are
to be
20
delivered to CITBC, premium prepaid, with the loss payable endorsement in
CITBC's favor, and shall provide for not less than thirty (30) days prior
written notice to CITBC of the exercise of any right of cancellation. Upon
the occurrence of an Event of Default which is not waived, CITBC shall,
subject to the rights of any holders of Permitted Encumbrances holding claims
senior to CITBC, have the sole right, in the name of CITBC or the Company, to
file claims under any insurance policies, to receive, receipt and give
acquittance for any payments that may be payable thereunder, and to execute
any and all endorsements, receipts, releases, assignments, reassignments or
other documents that may be necessary to effect the collection, compromise or
settlement of any claims under any such insurance policies.
(b) Unless Borrower provides CITBC with evidence of the Required Insurance
in the manner set forth in paragraph (a) above, CITBC may purchase insurance at
the Company's expense to protect CITBC's interests in the Collateral. The
insurance purchased by CITBC may, but need not, protect the Company's interests
in the Collateral, and therefore such insurance may not pay any claim which the
Company makes or any claim which is made against the Company in connection with
the Collateral. The Company may later request that CITBC cancel any insurance
purchased by CITBC, but only after providing CITBC with satisfactory evidence
that the Company has the Required Insurance. If CITBC purchases insurance
covering all or any portion of the Collateral, the Company shall be responsible
for the costs of such insurance, including interest (at the applicable rate set
forth hereunder) and other charges accruing on the purchase price therefor,
until the effective date of the cancellation or the expiration of the insurance,
and CITBC may charge all of such costs, interest and other charges to the
Revolving Loan Account. The costs of the premiums of any insurance purchased by
CITBC may exceed the costs of insurance which the Company may be able to
purchase on its own.
In the event that CITBC purchases insurance, CITBC will notify the Company of
such purchase within thirty (30) days after the date of such purchase. If,
within thirty (30) days of the date of such notice, the Company provides CITBC
with proof that the Company's had the Required Insurance as of the date on which
CITBC purchased insurance AND the Company has continued at all times thereafter
to have the Required Insurance, then CIT agrees to cancel the insurance
purchased by CITBC and credit the Revolving Loan Account by the amount of all
costs, interest and other charges associated with such insurance previously
charged to the Revolving Loan Account.
(c) i) In the event of any loss or damage by fire or other casualty,
insurance proceeds relating to Inventory shall reduce the Revolving Loan and
then the other Obligations;
ii) In the event any part of the Company's Equipment is damaged by fire or
other casualty and the insurance proceeds for such damage or other casualty (the
"Proceeds") is less than or equal to $200,000.00, CITBC shall promptly apply
such Proceeds to reduce the Revolving Loan.
iii) As long as no Event of Default has occurred and remains outstanding,
the Company has sufficient business interruption insurance to replace the lost
profits of any of the Company's facilities, and the Proceeds are in excess of
$200,000.00, the Company may elect (by delivering written notice to CITBC) to
replace, repair or restore the Equipment to substantially the equivalent
condition prior to such fire or other casualty as set forth herein. If the
Company does not, or cannot, elect to use the Proceeds as set forth above, CITBC
may, subject to the rights of any holders of
21
Permitted Encumbrances holding claims senior to CITBC, apply the Proceeds to
the payment of the Obligations in such manner and in such order as CITBC may
reasonably elect.
iv) If the Company elects to use the Proceeds for the repair, replacement
or restoration of any Equipment and there then exists no Event of Default, x)
proceeds of insurance in excess of $200,000.00 will be applied to the reduction
of the Revolving Loans of the Company and y) CITBC may set up a reserve against
Availability for an amount equal to the proceeds referred to in clause x)
hereof. The reserve will be reduced dollar-for-dollar upon receipt of
non-cancelable executed purchase orders, delivery receipts or contracts for the
replacement, repair or restoration of Equipment and disbursements in connection
therewith.
v) The Company agrees to pay any reasonable costs, fees or expenses which
CITBC may reasonably incur in connection herewith.
7.6 The Company agrees to pay, when due, all taxes, assessments, claims
and other charges (herein "taxes") lawfully levied or assessed upon the Company
or the Collateral. If such taxes remain unpaid after the date fixed for the
payment thereof (unless such taxes are being diligently contested in good faith
by the Company by appropriate proceedings), or if any lien shall be claimed
thereunder (a) for taxes due the United States of America or (b) which in
CITBC's opinion might create a valid obligation having priority over the rights
granted to CITBC herein, then CITBC may, on the Company's behalf, pay such
taxes, and the amount thereof shall be an Obligation secured hereby and due to
CITBC on demand.
7.7 The Company: (a) agrees to comply with all acts, rules, regulations
and orders of any legislative, administrative or judicial body or official,
which the failure to comply with would have a material and adverse impact on the
Collateral, or any material part thereof, or on the operation of the Company's
business, provided that the Company may contest any acts, rules, regulations,
orders and directions of such bodies or officials in any reasonable manner which
will not, in CITBC's reasonable opinion, materially and adversely effect CITBC's
rights or priority in the Collateral; and (b) agrees to comply with all
environmental statutes, acts, rules, regulations or orders as presently existing
or as adopted or amended in the future, applicable to the ownership and/or use
of its real property and operation of its business, which the failure to comply
with would have a material and adverse impact on the Collateral, or any material
part thereof, or on the operation of the business of the Company. The Company
hereby indemnifies CITBC and agrees to defend and hold CITBC harmless from and
against any and all loss, damage, claim, liability, injury or expense which
CITBC may sustain or incur in connection with any claim or expense asserted
against CITBC as a result of any environmental pollution, hazardous material or
environmental clean-up of the Company's real property; or any claim or expense
which results from the Company's operations (including, but not limited to, the
Company's off-site disposal practices), and the Company further agrees that this
indemnification shall survive termination of this Financing Agreement as well as
the payment of all Obligations or amounts payable hereunder. The Company shall
not be deemed to have breached any provision of this Section 7.7 if i) the
failure to comply with the requirements of this Section 7.7 resulted from good
faith error or innocent omission, ii) the Company promptly commences and
diligently pursues a cure of such failure to comply and iii) such failure to
comply is cured within
22
fifteen (15) Business Days following the Company's receipt of notice from
CITBC of such failure to comply.
7.8 Until termination of the Financing Agreement and payment and
satisfaction of all Obligations due hereunder, the Company agrees that, unless
CITBC shall have otherwise consented in writing, the Company will furnish to
CITBC: (a) within ninety (90) days after the end of each fiscal year of the
Company, a Consolidated Balance Sheet and a Consolidating Balance Sheet as at
the close of such year, and consolidated and consolidating (with respect to the
Company) statements of profit and loss, cash flow and reconciliation of surplus
of Parent for such year, audited by KPMG Peat Marwick or other independent
public accountants selected by the Company and satisfactory to CITBC; (b) within
thirty (30) days after the end of each month, a Consolidated Balance Sheet and
Consolidating Balance Sheet as at the end of such month, and consolidated and
consolidating (with respect to the Company) statements of profit and loss and
cash flow of Parent for such month and for the period commencing on the first
day of the current fiscal year through the end of such month, certified by an
authorized financial or accounting officer of the Company; (c) prior to the end
of each fiscal year, monthly projections of the Consolidated Balance Sheet,
Consolidating Balance Sheet, the consolidated and consolidating (with respect to
the Company) statements of profits and loss and cash flow of Parent and
Availability for the forthcoming fiscal year (notwithstanding the foregoing,
such projections for Parent's fiscal year ending November 30, 1999 shall not be
due until January 31, 1999); and (d) from time to time, such further information
regarding the business affairs and financial condition of the Company and the
Subsidiaries as CITBC may reasonably request. In connection with the issuance
of each financial statement described in clause (a) above, the Company shall
obtain the corresponding auditor's management letter and shall deliver a copy of
such letter to CITBC within a reasonable amount of time after receipt thereof.
Each financial statement which the Company is required to submit hereunder must
be accompanied by an officer's certificate, signed by the President, Vice
President, Controller, or Treasurer, pursuant to which any one such officer must
certify that: (a) the financial statement(s) fairly and accurately represent(s)
the Company's financial condition at the end of the particular accounting
period, as well as the Company's operating results during such accounting
period, subject to year-end audit adjustments; (b) during the particular
accounting period i) there has been no default or condition which, with the
passage of time or notice, or both, would constitute a Default or Event of
Default under this Financing Agreement, or, if any such officer has knowledge
that any such Default or Event of Default has occurred during such period, the
existence of and a detailed description of same shall be set forth in such
officer's certificate, and ii) the Company has not received any notice of
cancellation with respect to its property insurance policies; and (c) the
exhibits attached to such financial statement(s) constitute detailed
calculations showing compliance with all financial covenants contained in this
Financing Agreement.
7.9 The Company shall maintain, at all times during each month of the term
of this Financing Agreement, a Net Worth equal to or greater than the sum of (a)
$8,000,000 PLUS (b) the fifty percent (50%) of the cumulative net income of the
Company (as reported monthly by the Company in the manner required hereunder,
subject to fiscal year-end adjustments made in accordance with GAAP) from
October 1, 1998 through the end of immediately preceding month. For purposes of
this Section 7.9, if the Company incurs a net loss in any month, net income for
such month shall be deemed to be zero.
23
7.10 Until termination of the Financing Agreement and payment and
satisfaction of all Obligations due hereunder, the Company agrees that, without
the prior written consent of CITBC, except as otherwise herein provided, the
Company will not:
(a) Mortgage, assign, pledge, transfer or otherwise permit any lien,
charge, security interest, encumbrance or judgment, (whether as a result of a
purchase money or title retention transaction, or other security interest, or
otherwise) to exist on any of its assets or goods, whether real, personal or
mixed, whether now owned or hereafter acquired, except for the Permitted
Encumbrances;
(b) Incur or create any Indebtedness other than the Permitted
Indebtedness;
(c) Borrow any money on the security of the Collateral from sources other
than CITBC;
(d) Sell, lease, assign, transfer or otherwise dispose of i) Collateral,
except as otherwise specifically permitted by this Financing Agreement, or ii)
either all or substantially all of the Company's assets which do not constitute
Collateral;
(e) Merge, consolidate or otherwise alter or modify its corporate name,
principal place of business, structure, status or existence, or enter into or
engage in any operation or activity materially different from that presently
being conducted by the Company;
(f) Assume, guarantee, endorse, or otherwise become liable upon the
obligations of any person, firm, entity or corporation, except by the
endorsement of negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business;
(g) Declare or pay any dividend of any kind on, or purchase, acquire,
redeem or retire, any of the capital stock or equity interest, of any class
whatsoever, whether now or hereafter outstanding, except that the Company may
declare and pay dividends on its capital stock in an amount sufficient to enable
the Parent: i) to pay all normal and customary expenses of Parent's operations
(including, without limitation, salaries, benefits and bonuses to officers and
employees); ii) to pay income or franchise taxes of the Company due as a result
of the filing of a consolidated, combined or unitary tax return in which the
operations of the Company are included, provided that no Default or Event of
Default has occurred or would occur after giving effect to any such dividend;
iii) to pay the costs (including applicable attorneys fees) of settlement or
other disposition of the Existing Litigation, but only if the Company would be
permitted under paragraph (i) of this Section 7.10 to pay such costs itself; and
iv) to pay the obligations of Parent to Illinois Tool Works Inc. which arise
under Sections 2.3 and 9.1 of the Agreement of Purchase and Sale of Assets and
Stock between Parent and Illinois Tool Works Inc.
(h) Make any advance or loan to, or any investment in, any firm, entity,
person or corporation, other than loans to Parent for the purposes (and to the
extent of any dollar amounts) permitted under paragraph (g) of this Section
7.10;
24
(i) Pay the costs of any settlement or other disposition of the Existing
Litigation unless: i) the Company notifies CITBC in writing of the proposed
amount of payment of such costs (including associated attorneys fees and other
expenses) at least five (5) days prior to such payment; ii) the Availability,
after giving effect to the projected amount of such costs (including associated
attorneys fees and other expenses), remains equal to or greater than $1,500,000
at all times during the period thirty (30) days preceding the date of the
payment of such costs; and iii) the Availability, after giving effect to the
actual amount of such costs (including associated attorneys fees and other
expenses), remains equal to or greater than $1,500,000 at all times during the
period thirty (30) days after the date of the payment of such costs.
7.11 Without the prior written consent of CITBC, the Company will not: (a)
enter into any Operating Lease if after giving effect thereto the aggregate
obligations with respect to Operating Leases of the Company payable during any
fiscal year would exceed $500,000; or (b) contract for, purchase, make
expenditures for, lease pursuant to a Capital Lease or otherwise incur
obligations with respect to Capital Expenditures (whether subject to a security
interest or otherwise) during any fiscal year in the aggregate amount in excess
of:
i) $50,000 from the date hereof through November 30, 1998;
ii) $200,000 for the fiscal year ending November 30, 1999;
iii) $200,000 for the fiscal year ending November 30, 2000; and
iv) $200,000 for the fiscal year ending November 30, 2001, and for each
fiscal year thereafter.
To the extent that the maximum amount of Capital Expenditures and Capital Lease
obligations permitted to be incurred by the Company in any period set forth
above exceeds the amount of Capital Expenditures and Capital Lease obligations
actually incurred by the Company during such period, the amount of such excess
may be carried over and used by the Company in any subsequent period, in
addition to the amount permitted to be incurred by the Company during such
subsequent period.
7.12 The Company agrees to advise CITBC in writing of (a) all expenditures
(actual or anticipated) in excess of $150,000.00 for i) environmental clean-up,
ii) environmental compliance or iii) environmental testing and the impact of
said expenses on the Company's working capital, and (b) any notices the Company
receives from any local, state or federal authority advising the Company of any
environmental liability (real or potential) stemming from the Company's
operations, its premises, its waste disposal practices, or waste disposal sites
used by the Company and to provide CITBC with copies of all such notices if so
required.
7.13 Without the prior written consent of CITBC, the Company agrees that
it will not enter into any transaction, including, without limitation, any
purchase, sale, lease, loan or exchange of property with Parent, or any
subsidiary or affiliate of either the Company or Parent at the time of such
transaction, other than i) agreements relating to the payment of the costs of
settlement or other disposition of the Existing Litigation, ii) purchases of
inventory in the ordinary course of business by the Company from Sames France,
iii) any management or consulting agreements with Parent on terms no less
favorable than the Company would obtain with entities unaffiliated with the
Company and iv) any transaction expressly permitted by this Financing Agreement.
25
7.14 The Company shall take all action reasonably necessary to assure that
its computer-based systems are able to effectively process date-sensitive data
functions. The Company represents and warrants to CITBC that the "Year 2000"
problem (that is, the inability of certain computer applications to recognize
and properly perform date-sensitive functions involving dates subsequent to
December 31, 1999) will not have a material adverse effect on the Company's
business, assets or operations. The Company reasonably anticipates that all
computer applications which are material to the operation of its business will,
on a timely basis, be able to properly perform date-sensitive functions on and
after January 1, 2000. Upon CITBC's request from time to time, the Company
shall provide CITBC with assurances, in form and substance reasonably
satisfactory to CITBC, that the Company's computer systems and applications are,
or will be, Year 2000 compliant on a timely basis.
SECTION 8. INTEREST, FEES AND EXPENSES
8.1 Interest on outstanding balances of the Revolving Loans which are not
Libor Loans shall be payable monthly as of the end of each month and shall
accrue at a rate per annum equal the Chase Manhattan Rate on the average of the
net balances owing by the Company to CITBC in the Company's Revolving Loan
Account at the close of each day during such month. On Libor Loans, interest
shall be payable monthly as of the end of each month and shall accrue at a rate
per annum equal to two and one-half percent (2.50%) plus the applicable Libor on
the average balances of all Libor Loans outstanding during such month. In the
event of any change in the Chase Manhattan Rate, the rate above immediately
shall change so as to remain at the Chase Manhattan Rate. All interest rates
shall be calculated based on a 360-day year. CITBC shall be entitled to charge
the Company's Revolving Loan Account for all interest provided for herein when
due until all Obligations have been paid in full.
8.2 [INTENTIONALLY DELETED]
8.3 The Company may elect to use Libor as to any outstanding Revolving
Loans provided that there then exists no Default or Event of Default and the
Company has so advised CITBC of its election to use Libor and the Libor Period
selected no later than three (3) Business Days preceding the first day of a
Libor Period. The election and Libor shall be effective, provided there then
exists no Default or Event of Default, on the fourth Business Day following said
notice. The Libor elections must be for $1,000,000 or integral multiples of
$100,000 in excess thereof, and there shall be no more than three (3) Libor
Loans outstanding at one time. If no such election is timely made or can be
made, or if the Libor rate can not be determined, then CITBC shall use the Chase
Manhattan Rate to compute interest. In the event the Company requests any Libor
election the Company shall pay to CITBC a $500 processing fee upon the effective
date of each such Libor election hereunder. In addition, the Company shall pay
to CITBC, upon the request of CITBC such amount or amounts as shall compensate
CITBC for any loss, costs or expenses incurred by CITBC (as reasonably
determined by CITBC) as a result of (a) any payment or prepayment on a date
other than the last day of a Libor Period for such Libor Loan, or (b) any
failure of the Company to borrow a Libor Loan on the date for such borrowing
specified in the relevant notice; such compensation to include, without
limitation, an amount equal to any loss or expense suffered by CITBC during the
26
period from the date of receipt of such payment or prepayment or the date of
such failure to borrow to the last day of such Libor Period if the rate of
interest obtained by CITBC upon the reemployment of an amount of funds equal to
the amount of such payment, prepayment or failure to borrow is less than the
rate of interest applicable to such Libor Loan for such Libor Period. The
determination by CITBC of the amount of any such loss or expense, when set forth
in a written notice to the Company, contaning CITBC's calculations thereof in
reasonable detail, shall be conclusive on the Company, in the absence of
manifest error. Calculation of all amounts payable to CITBC under this
paragraph with regard to Libor Loans shall be made as though CITBC had actually
funded the Libor Loans through the purchase of deposits in the relevant market
and currency, as the case may be, bearing interest at the rate applicable to
such Libor Loans in an amount equal to the amount of the Libor Loans and having
a maturity comparable to the relevant interest period, provided that CITBC may
fund each of the Libor Loans in any manner CITBC sees fit and the foregoing
assumption shall be used only for calculation of amounts payable under this
Section 8.3. In addition, notwithstanding anything to the contrary contained
herein, CITBC shall apply all proceeds of Collateral, including the Accounts,
and all other amounts received by it from or on behalf of the Companies
initially to the loans accruing interest at the Chase Manhattan Rate then to
Libor Loans, provided that upon the occurrence of an Event of Default, or in the
event the aggregate amount of outstanding Libor Loans exceeds Availability or
the applicable maximum levels set forth therefor, CITBC may apply all such
amounts received by it to the payment of the Obligations in such manner and in
such order as CITBC may elect in its reasonable business judgment. In the event
that any such amounts are applied to Revolving Loans which are Libor Loans, such
application shall be treated as a prepayment of such loans and CITBC shall be
entitled to indemnification hereunder.
8.4 In consideration of the Letter of Credit Guaranty of CITBC, the Company
shall pay CITBC the Letter of Credit Guaranty Fee which shall be an amount equal
to one and three-quarters percent (1.75%) per annum on the face amount of each
Letter of Credit, less the amount of any and all amounts previously drawn under
the Letter of Credit, payable (a) monthly in arrears, with respect to each
documentary letter of credit and (b) in full upon issuance, with respect to each
standby letter of credit.
8.5 Any charges, fees, commissions, costs and expenses charged to CITBC
for the Company's account by any Issuing Bank in connection with or arising out
of Letters of Credit issued pursuant to this Financing Agreement or out of
transactions relating thereto will be charged to the Company's Revolving Loan
Account in full when charged to or paid by CITBC and when made by any such
Issuing Bank shall be conclusive on CITBC.
8.6 The Company shall reimburse or pay CITBC upon demand, as the case may
be, for i) all Out-of-Pocket Expenses of CITBC, ii) all Documentation Fees and
iii) fees of CITBC's in-house legal department and facilities in documenting, in
whole or in part, this Agreement and the other loan documents solely on behalf
of CITBC (the Out-of-Pocket Expenses of CITBC incurred prior to the execution of
this Agreement and the fees described in clause iii) of this Section 8.6 shall
not exceed $10,000 in the aggregate).
27
8.7 Commencing on the first day of the month following the month in which
the Closing Date occurs, and on the first day of each month thereafter, the
Company shall pay to CITBC the Line of Credit Fee.
8.8 To induce CITBC to enter into this Financing Agreement and to extend
to the Company the Revolving Loan and Letters of Credit, the Company shall pay
to CITBC a Loan Facility Fee in the amount of $50,000. The Loan Facility Fee
shall be fully earned by CITBC on the Closing Date but shall be payable in two
(2) installments of $25,000 each, the first of which shall be payable upon
execution of this Financing Agreement by CITBC and the second of which shall be
due and payable on December 31, 1998.
8.9 Prior to the occurrence of an Event of Default, the Company shall
reimburse CITBC for the reasonable transportation, lodging and related travel
expenses of CIT personnel in connection with up to four (4) periodic
examinations per calendar year of the books and records of the Company and the
Collateral. After the occurrence of an Event of Default, the Company shall
reimburse CITBC for all such expenses as well as CITBC's standard charges for,
and the fees of, the CITBC personnel used by CITBC for reviewing the books and
records of the Company and for verifying, testing, protecting, safeguarding,
preserving or disposing of all or any part of the Collateral.
8.10 The Company hereby authorizes CITBC to charge the Company's Revolving
Loan Account with the amount of all payments due hereunder as such payments
become due. The Company confirms that any charges which CITBC may so make to
the Company's Revolving Loan Account as herein provided will be made as an
accommodation to the Company and solely at CITBC's discretion.
SECTION 9. POWERS
9.1 The Company hereby constitutes CITBC or any person or agent CITBC may
designate as its attorney-in-fact, at the Company's cost and expense, to
exercise all of the following powers, which being coupled with an interest,
shall be irrevocable until all of the Obligations have been paid in full:
(a) To receive, take, endorse, sign, assign and deliver, all in the name
of CITBC or the Company, any and all checks, notes, drafts, and other documents
or instruments relating to the Collateral;
(b) To receive, open and dispose of all mail addressed to the Company and
to notify postal authorities to change the address for delivery thereof to such
address as CITBC may designate;
(c) To request from customers indebted on Accounts at any time, in the
name of CITBC or the Company or that of CITBC's designee, information concerning
the amounts owing on the Accounts;
28
(d) To transmit to customers indebted on Accounts notice of CITBC's
interest therein and to notify customers indebted on Accounts to make payment
directly to CITBC for the Company's account; and
(e) To take or bring, in the name of CITBC or the Company, all steps,
actions, suits or proceedings deemed by CITBC necessary or desirable to
enforce or effect collection of the Accounts.
9.2 Notwithstanding anything set forth herein to the contrary, the
powers set forth in paragraphs (b), (d) and (e) of Section 9.1 may only be
exercised after the occurrence of an Event of Default and until such time as
such Event of Default is waived.
SECTION 10. EVENTS OF DEFAULT AND REMEDIES
10.1 Notwithstanding anything set forth herein to the contrary, CITBC
may terminate this Financing Agreement immediately upon the occurrence of any
of the following (herein "Events of Default"):
(a) cessation of the business of the Company or Parent, or the calling
of a meeting of the creditors of the Company or Parent for purposes of
compromising the debts and obligations of the Company;
(b) the failure of the Company or Parent to generally meet debts as
they mature;
(c) the commencement by or against the Company or Parent of any
bankruptcy, insolvency, arrangement, reorganization, receivership or similar
proceedings under any federal or state law, provided that in the event of any
involuntary proceeding commenced against the Company or Parent, such
proceeding is not dismissed or discharged within thirty (30) days after
commencement thereof;
(d) breach by the Company of any warranty, representation or covenant
contained herein (other than those referred to in paragraph (e) below) or in
any other written agreement between the Company or CITBC, provided that such
breach by the Company of any of the warranties, representations or covenants
referred in this paragraph (d) shall not be deemed to be an Event of Default
unless and until such breach shall remain unremedied to CITBC's reasonable
satisfaction for a period of ten (10) Business Days from the date of such
breach;
(e) breach by the Company of any warranty, representation or covenant
of 3.4; Sections 6.3 and 6.4 (other than the first sentence of Section 6.4);
and Sections 7.1(h), 7.5, 7.6, 7.9, 7.10, 7.11 and 7.13;
(f) failure of the Company to pay any of the Obligations on due date
thereof;
(g) the Company shall i) engage in any "prohibited transaction" as
defined in ERISA, ii) incur any "accumulated funding deficiency" as defined
in ERISA, iii) incur any Reportable Event
29
as defined in ERISA, iv) terminate any Plan, as defined in ERISA or v) engage
in any proceeding in which the Pension Benefit Guaranty Corporation shall
seek appointment, or is appointed, as trustee or administrator of any Plan,
as defined in ERISA; and with respect to this paragraph (g) such event or
condition x) remains uncured for a period of thirty (30) days from date of
occurrence and y) could, in the reasonable opinion of CITBC, subject the
Company to any tax, penalty or other liability material to the business,
operations or financial condition of the Company;
(h) Parent shall revoke, rescind or repudiate the guaranty agreement
delivered to CITBC in connection with this Agreement, or shall attempt to
revoke, rescind or repudiate such guaranty agreement or deny that Parent has
any further obligations to CITBC thereunder;
(i) the occurrence of any default or event of default (after giving
effect to any applicable grace or cure periods) under any instrument or
agreement evidencing Indebtedness of the Company having a principal amount in
excess of $250,000;
(j) either: i) Xxxxxx X. Xxxxx ceases for any reason to be actively
engaged in the management of the Company and Parent, unless x) within thirty
(30) days thereafter the Company and CITBC amend this Financial Agreement to
provide for an amended Net Worth covenant, a new fixed charge coverage ratio
covenant and a new funded debt to EBITDA covenant, all of which covenants
must be satisfactory to CITBC in its reasonable business judgment, y) within
ninety (90) thereafter the Company and Parent appoint an interim replacement
reasonably satisfactory to CITBC and z) within two hundred seventy (270) days
thereafter the Company appoints a permanent replacement reasonably
satisfactory to CITBC; or ii) any of the stock of the Company presently held
(directly or indirectly) by the Parent is sold or transferred; or
(k) Availability at any time is less than $1,500,000.
10.2 Upon the occurrence of a Default and/or an Event of Default, at
the option of CITBC, all loans, advances and extensions of credit provided
for in Sections 3 and 5 of this Financing Agreement thereafter shall be made
in CITBC's sole discretion, and the obligation of CITBC to make Revolving
Loans and/or open Letters of Credit shall cease unless such Default or Event
of Default is waived. In addition, at the option of CITBC, upon the
occurrence of an Event of Default: (a) all Obligations shall become
immediately due and payable; (b) CITBC may charge the Company the Default
Rate of Interest on all then outstanding or thereafter incurred Obligations
in lieu of the interest provided for in Section 8 of this Financing
Agreement, provided that with respect to this clause (b), CITBC has given the
Company written notice of the Event of Default, (provided that no notice is
required if the Event of Default is the Event listed in paragraph (c) of
Section 10.1) and the Company has failed to cure the Event of Default to
CITBC's satisfaction within ten (10) days after CITBC notifies the Company in
the manner required hereunder (or within 10 days of the occurrence of the
Event of Default, in the case of an Event of Default listed in paragraph (c)
of Section 10.1); and (c) CITBC may immediately terminate this Financing
Agreement upon notice to the Company, provided that no notice of termination
is required if the Event of Default is the Event listed in paragraph (c) of
Section 10.1. The exercise of any option is not exclusive of any other
option which may be exercised at any time by CITBC.
30
10.3 Immediately upon the occurrence of any Event of Default, CITBC may
to the extent permitted by law: (a) remove from any premises where same may
be located any and all documents, instruments, files and records, and any
receptacles or cabinets containing same, relating to the Accounts, or CITBC
may use, at the Company's expense, such of the Company's personnel, supplies
or space at the Company's places of business or otherwise, as may be
necessary to properly administer and control the Accounts or the handling of
collections and realizations thereon; (b) bring suit, in the name of the
Company or CITBC, and generally shall have all other rights respecting said
Accounts, including, without limitation, the right to i) accelerate or extend
the time of payment, ii) settle, compromise, release in whole or in part any
amounts owing on any Accounts and iii) issue credits in the name of the
Company or CITBC; (c) sell, assign and deliver the Collateral and any
returned, reclaimed or repossessed merchandise, with or without advertisement,
at public or private sale, for cash, on credit or otherwise, at CITBC's sole
option and discretion, and CITBC may bid or become a purchaser at any such
sale, free from any right of redemption, which right is hereby expressly
waived by the Company; (d) foreclose its security interests in the Collateral
by any available judicial procedure, or to take possession of any or all of
the Inventory, Equipment and/or Other Collateral without judicial process,
and to enter any premises where any Inventory, Equipment and/or Other
Collateral may be located for the purpose of taking possession of or removing
the same, and (e) exercise any other rights and remedies provided in law, in
equity, by contract or otherwise. CITBC shall have the right, without notice
or advertisement, to sell, lease, or otherwise dispose of all or any part of
the Collateral whether in its then condition or after further preparation or
processing, in the name of the Company or CITBC, or in the name of such other
party as CITBC may designate, either at public or private sale or at any
broker's board, in lots or in bulk, for cash or for credit, with or without
warranties or representations, and upon such other terms and conditions as
CITBC in its sole discretion may deem advisable, and CITBC shall have the
right to purchase at any such sale. If any Inventory and Equipment shall
require rebuilding, repairing, maintenance or preparation, CITBC shall have
the right, at its option, to do such of the aforesaid as is necessary, for
the purpose of putting the Inventory and Equipment in such saleable form as
CITBC shall deem appropriate. The Company agrees, at the request of CITBC,
to assemble the Inventory and Equipment and to make it available to CITBC at
premises of the Company or elsewhere and to make available to CITBC the
premises and facilities of the Company for the purpose of CITBC's taking
possession of, removing or putting the Inventory and Equipment in saleable
form. However, if notice of intended disposition of any Collateral is
required by law, it is agreed that ten (10) days notice shall constitute
reasonable notification and full compliance with the law. The net cash
proceeds resulting from CITBC's exercise of any of the foregoing rights,
(after deducting all charges, costs and expenses, including reasonable
attorneys' fees) shall be applied by CITBC to the payment of the Company's
Obligations, whether due or to become due, in such order as CITBC may elect,
and the Company shall remain liable to CITBC for any deficiencies, and CITBC
in turn agrees to remit to the Company or its successors or assigns, any
surplus resulting therefrom. The enumeration of the foregoing rights is not
intended to be exhaustive and the exercise of any right shall not preclude
the exercise of any other rights, all of which shall be cumulative. The
mortgage(s), deed(s) of trust or assignment(s) on the Real Estate shall
govern the rights and remedies of CITBC thereto.
SECTION 11. TERMINATION
31
11.1 Except as otherwise permitted herein, the Company or CITBC may
terminate this Financing Agreement and the Line of Credit only as of the
initial or any subsequent Anniversary Date and then only by giving the other
party at least ten (10) Business Days prior written notice of termination.
Notwithstanding the foregoing, (a) CITBC may terminate the Financing
Agreement immediately upon the occurrence of an Event of Default, provided
that if the Event of Default is an event listed in paragraph (c) of Section 10.1
hereof, CITBC may regard the Financing Agreement as terminated and notice to
that effect is not required, and (b) the Company may terminate this Financing
Agreement and the Line of Credit prior to any applicable Anniversary Date
upon ten (10) Business Days' prior written notice to CITBC, provided that the
Company pays to CITBC immediately on demand, an Early Termination Fee, if
applicable. This Financing Agreement, unless terminated as herein provided,
shall automatically continue from Anniversary Date to Anniversary Date. All
Obligations shall become due and payable as of any termination hereunder or
under Section 10 hereof and, pending a final accounting, CITBC may withhold
any balances in the Company's account (unless supplied with an indemnity
satisfactory to CITBC) to cover all of the Obligations, whether absolute or
contingent. All of CITBC's rights, liens and security interests shall
continue after any termination until all Obligations have been paid and
satisfied in full.
SECTION 12. MISCELLANEOUS
12.1 The Company hereby waives diligence, demand, presentment and
protest and any notices thereof as well as notice of nonpayment. Any waiver
of an Event of Default by CITBC must be in writing and signed by an officer
of CITBC, and no delay or omission of CITBC or the Company to exercise any
right or remedy hereunder, whether before or after the happening of any Event
of Default, shall impair any such right or shall operate as a waiver thereof
or as a waiver of any such Event of Default. No single or partial exercise
by CITBC of any right or remedy precludes any other or further exercise
thereof, or precludes any other right or remedy.
12.2 This Financing Agreement and the documents executed and delivered
in connection therewith constitute the entire agreement between the Company
and CITBC; supersede any prior agreements; can be changed only by a writing
signed by both the Company and CITBC; and shall bind and benefit the Company
and CITBC and their respective successors and assigns.
12.3 In no event shall the Company, upon demand by CITBC for payment of
any indebtedness relating hereto, by acceleration of the maturity thereof, or
otherwise, be obligated to pay interest and fees in excess of the amount
permitted by law. Regardless of any provision herein or in any agreement
made in connection herewith, CITBC shall never be entitled to receive, charge
or apply, as interest on any indebtedness relating hereto, any amount in
excess of the maximum amount of interest permissible under applicable law.
If CITBC ever receives, collects or applies any such excess, it shall be
deemed a partial repayment of principal and treated as such; and if principal
is paid in full, any remaining excess shall be refunded to the Company. This
Section 12.3 shall control every other provision hereof and of any other
agreement made in connection herewith.
12.4 If any provision hereof or of any other agreement made in
connection herewith is held to be illegal or unenforceable, such provision
shall be fully severable, and the remaining provisions of the applicable
agreement shall remain in full force and effect and shall not be affected by
such
32
provision's severance. Furthermore, in lieu of any such provision, there
shall be added automatically as a part of the applicable agreement a legal
and enforceable provision as similar in terms to the severed provision as may
be possible.
12.5 THE COMPANY AND CITBC EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS FINANCING AGREEMENT.
THE COMPANY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND
CONSENTS TO SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED.
12.6 Except as otherwise herein provided, any notice or other
communication required hereunder shall be in writing, and shall be deemed to
have been validly served, given or delivered upon receipt by the intended
recipient when hand delivered or sent by facsimile or one Business Day after
timely delivery to a commercial overnight courier service for delivery the
next Business Day, and addressed to the party to be notified as follows:
(a) if to CITBC, at:
The CIT Group/Business Credit, Inc.
00 Xxxxx XxXxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Regional Manager
Telecopier No.: (000) 000-0000
(b) if to the Company at:
Xxxxx Electrostatic, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: President
Telecopier No.: (000) 000-0000
with copies to:
Vedder, Price, Xxxxxxx and Kammholz
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxx X. Xxxxxx, Esq.
Telecopier No.: (000)000-0000
and
Xxxxxx X. Xxxxx
Binks Xxxxx Corporation
0000 Xxxxxxx Xxxxxx
00
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
or to such other address as any party may designate for itself by like notice.
34
12.7 THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS FINANCING
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.
IN WITNESS WHEREOF, the parties hereto have caused this Financing
Agreement to be executed, agreed to accepted and delivered in Chicago,
Illinois by their proper and duly authorized officers as of the date set
forth above.
THE CIT GROUP/BUSINESS
CREDIT, INC.
By: /s/ Xxxxxxx Xxxx
------------------------------
Its: Vice President
XXXXX ELECTROSTATIC, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
-------------------------------
Its: Executive Vice President
-------------------------------
35
SCHEDULE 1 - EXISTING LIENS
FILING SECURED
LOCATION FILING NO. DATE PARTY COLLATERAL
-------- ---------- ------ ------- ----------
XXX, Xxxxxxxx 000000 3/28/95 Xxxxxxx Business Copier and
accessories
- Rights of Illinois Tool Works Inc., if any, in Inventory consisting of
sheet metal situated at any location operated by Illinois Tool Works Inc. or
any affiliate thereof.
SCHEDULE 2 - COLLATERAL LOCATIONS, CHIEF EXECUTIVE OFFICE AND TRADENAMES
CHIEF EXECUTIVE XXXXXX
00000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
COLLATERAL LOCATIONS
00000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
TRADENAMES
SCHEDULE 3 - EXISTING LITIGATION
