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EXHIBIT 10.5(c)
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LOAN AGREEMENT
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$3,604,646.37
THIS AGREEMENT is made as of the 30th day of March, 1995 (the "Closing Date") by
and between Ekco Group, Inc. (the "Company") and Xxxx X. Xxxxxx ("Trustee"), as
Trustee and not individually, of the Ekco Group, Inc.
Employees' Stock Ownership Plan (the "ESOP").
A. The ESOP is the borrower pursuant to a term loan agreement dated May
22, 1989 in the initial principal amount of Six Million Four Hundred Twenty Six
Thousand and 00/l00 ($6,426,000.00) Dollars in which Shawmut Bank, N.A.
("Shawmut") is the lender, and Ekco Group, Inc. ("the "Company") is the
guarantor.
B. The Shawmut loan provides that it may be prepaid at any time without
penalty and the Trustee of the ESOP wishes to refinance the loan on terms which
are no less favorable to the ESOP.
C. The Company has agreed to lend the Trustee three million, six hundred
and four thousand, six hundred and forty six dollars and thirty seven cents
($3,604,646.37) so that the ESOP may pay in full its remaining obligations to
Shawmut Bank, N.A. under said loan agreement dated May 22, 1989.
D. The Shawmut loan is collateralized with cash and other liquid
investments of the Company and the Company, as guarantor of the Shawmut loan,
retains a collateral interest in certain Company securities which are in an ESOP
"suspense account" and which have not been allocated to Participant accounts.
E. The Company agrees that it will require as collateral for the ESOP loan
only a continued interest in those suspense account securities which
collateralized its guaranty of the Shawmut loan and only to the extent permitted
by ERISA.
Effective as of the "Closing Date", Ekco and the Trustee of the ESOP agree to
the following terms.
1. LOAN. The Company agrees to lend three million, six hundred
and four thousand, six hundred and forty six dollars and thirty seven cents
($3,604,646.37) (the "Obligation") to the Trustee. The Trustee agrees to pay the
Obligation by executing a promissory note attached hereto as Exhibit A.
2. PAYMENT. The Trustee agrees to repay the Obligation in sixty
(60) substantially equal quarterly installments of one hundred thousand, five
hundred and eighty three dollars and eighty five cents ($100,583.85) on the
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last day of each calendar quarter, with the first payment due on June 30, 1995
and with a last payment of one hundred thousand, five hundred and eighty four
dollars and thirty seven cents ($100,584.37) due on March 31, 2010. Interest
will accrue on the unpaid balance at the rate of seven and one half percent
(7+1/2%) per annum. The Trustee shall have the right to prepay the Obligation in
whole or in part without premium at any time.
3. PLEDGE. As security for the Obligation, the Trustee does
hereby reaffirm its pledge to the Company of a security interest in the
remaining unallocated portion of 1,800,000 shares of Series B ESOP Convertible
Preferred Stock (the "Financed Shares") which were acquired on February 28, 1989
pursuant to a Company loan and which were the subject of continued
collateralization under the Shawmut loan. The Trustee agrees to continue to hold
the shares in a suspense account, as provided in section 10.
4. TITLE TO THE FINANCED SHARES. The Trustee represents and
warrants:
(i) he is the legal and beneficial owner of the Financed Shares
free and clear of all liens, encumbrances, security interests and other charges
except as created hereby; and
(ii) that he has all necessary right, power and authority to enter
into this Agreement and to grant the security interest and make the assignment
provided herein; and that he will defend the Company's right, title, special
property and security interest in and to the Financed Shares against the claims
or demands of any person, firm, corporation or other legal entity or any
governmental agency or authority.
5. RIGHTS AND DUTIES WITH RESPECT TO FINANCED SHARES. Beyond the
exercise of reasonable care to assure the safe custody of securities
constituting Financed Shares while in the Company's possession, the Company
shall not be under any duty to collect or protect the Financed Shares or income
thereon or to preserve rights pertaining thereto.
6. REGISTRATION, INCOME AND VOTING RIGHTS. The right is expressly
granted to the Company, at any time after an Event of Default (as hereinafter
defined) has occurred hereunder, at its option, to transfer any securities
constituting the number of Financed Shares which is necessary to meet the
payment schedule of this Agreement in accordance with Section 7 hereof (the
"Default Shares") into its own name or the name of any nominee acting on the
Company's behalf. Until there is an Event of Default hereunder, as herein
defined, the Trustee shall be entitled to receive and retain any dividends or
interest paid in cash with respect to securities constituting Financed Shares
and shall retain all voting rights incident to ownership. After the occurrence
of an Event of Default, (a) the Company shall have the sole right to receive any
dividends, interest or distribution with respect to securities constituting
Default Shares which stand in its name or the name of the Company's nominee, and
(b) the Company shall be expressly empowered to exercise all powers of voting
and consent with respect to any securities
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constituting Default Shares which have been transferred into its name or the
name of the Company's nominee and the Company is authorized to provide a copy of
this Agreement to the transfer agent for the common stock of any issuer of
securities constituting Financed Shares as conclusive evidence of the
registration, voting and other rights herein granted. In order to permit the
Trustee to exercise powers of voting and consent and to receive cash dividends
prior to an Event of Default, the Company shall, from time to time, upon written
request of the Trustee, execute and deliver to the Trustee appropriate proxies
and dividend or payment orders.
7. EVENTS OF DEFAULT; REMEDIES. If there is an event of default
(each an "Event of Default") whereby there is a default in the payment of any of
the Obligation under the terms of this Agreement, then thereupon or at any time
thereafter (unless all existing Events of Defaults have been cured to the
Company's satisfaction), the Company may declare this Agreement to be in default
and shall thereafter have as its sole remedy with respect to any default, the
right to dispose of an amount of Financed Shares in the Plan escrow account that
is necessary to provide to the Company sufficient funds to bring the Trustee
current with his Obligation hereunder and under the Promissory Note.
IN NO EVENT WILL AN EVENT OF DEFAULT BE DEEMED TO HAVE OCCURRED IF THE COMPANY
HAS NOT CONTRIBUTED SUFFICIENT FUNDS TO THE ESOP TO ENABLE IT TO MEET THE DEBT
SERVICE OF THE PROMISSORY NOTE ATTACHED AS SCHEDULE A.
8. FURTHER ASSURANCES. The Trustee will at any time and from time
to time upon the written request of the Company, join in the execution and
filing of appropriate Uniform Commercial Code financing statements and will also
do, make, execute and deliver all such additional and further acts, things,
deeds, instruments, documents and assurances (including without limitation,
Federal Reserve Form U-1) as the Company may reasonably request in order to
perfect and protect more completely the Company's rights hereunder and its
security interest in the Financed Shares and to carry out the terms of this
Agreement. The Company, in its own name or in the name of the Trustee, may
likewise take such steps in case the Trustee shall fail to do so. All costs and
expenses incurred by the Company or the Trustee in connection with anything
contemplated hereunder, including without limitation, legal fees and other costs
and expenses relating to any judicial proceedings, shall be borne by the
Trustee, and to the extent they are paid or incurred by the Company, shall be
reimbursed, with interest, by the Trustee upon demand.
9. NO WAIVER OF DEMANDS, NOTICES, DILIGENCE, ETC. The Trustee
hereby assents to all the terms and conditions of the Obligation but does not
waive any of the formal protections afforded a debtor under the laws of the
State of Delaware or otherwise available to an ESOP trustee under federal law.
10. RELEASE. The Trustee agrees to hold the Financed Shares in a
Plan suspense account for the benefit of the Company. Shares will be released
from the account ratably as the Trustee makes each monthly payment of principal
and
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interest hereunder for allocation to participant accounts, as provided in the
Plan and in accordance with Internal Revenue Code Regulation Sec. 54.4975-
7(b)(8)(i).
11. ALTERNATIVE. If the Trustee is unable to repay his obligations
under this Agreement, the Trustee may pursue any of the following alternatives
which he deems prudent at the time and which shall discharge his obligations
under this Agreement in full:
A) He may return the remaining Financed Shares in the
escrow account to the Company, properly endorsed to
the Company which will discharge the Obligation in
full;
B) He may continue to make payments to or for the
benefit of the Company by tendering to the Company
the number of shares necessary to keep the Obligation
current;
C) He may obtain a loan from another lender to pay off
remaining obligations to the Company and the Company
agrees to release the Financed Shares from the
restrictions of this Agreement for that purpose; or
D) He may utilize any combination of the above
alternatives.
12. Miscellaneous.
(a) No course of dealing between the Trustee and the
Company, and no failure to exercise nor any delay in exercising on the part of
the Company, any right, power or privilege hereunder or under any other
instrument or agreement, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power or privilege hereunder or thereunder
preclude any other or further privilege.
(b) This Agreement is subject to amendment or
modification only by a writing signed by the Trustee and the Company. The
Financed Shares shall secure all of the Obligation.
(c) In case any provision of this Agreement shall be
determined to be invalid or unenforceable under applicable law, such provision
shall, insofar as possible, be construed or applied in such manner as will
permit enforcement; otherwise this Agreement shall be construed as though such
provision had never been made a part hereof.
(d) It is the intent of this agreement that it in all
events comply with ERISA. Any provision which is ambiguous or in conflict shall
be interpreted by the Trustee in his sole discretion so that it does not
contravene that statute, including specifically rules related to "leveraged
ESOPs."
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(d) This Agreement is intended to take effect as a sealed
instrument governed by the laws of the State of Delaware and shall inure to the
benefit of the Company and its successors and assigns and shall be binding upon
the Trustee and successors and assigns of the Trustee. If a non-individual
serves as trustee of the Plan, then this Agreement shall be effective
notwithstanding the fact that such trustee ceases to exist by reason of its
liquidation, merger, consolidation or otherwise.
13. TERMINATION. This Agreement shall terminate upon the payment
and satisfaction in full of all of the Obligation.
IN WITNESS WHEREOF, the Trustee and the Company have caused this
Agreement to be duly executed and delivered under seal as of the day and year
first above written.
EKCO GROUP, INC. EKCO GROUP, INC.EMPLOYEES' STOCK OWNERSHIP
PLAN
By: /S/XXXXXX X. XXXXXXXXXX By: /S/XXXX X. XXXXXX
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Title: Executive Vice President, Xxxx X. Xxxxxx, as
Finance & Administration Trustee and not
and Chief Financial Officer individually
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PROMISSORY NOTE EXHIBIT A
$3,604,646.37
FOR VALUE RECEIVED, Xxxx X. Xxxxxx, as Trustee of the Ekco Group, Inc.
Employees' Stock Ownership Plan ("Trustee") and not individually, hereby
promises to pay to the order of Ekco Group, Inc. ("Company") the principal
amount of three million, six hundred and four thousand, six hundred and forty
six dollars and thirty seven cents ($3,604,646.37). Interest will accrue on the
unpaid balance at the rate of seven and one half percent (7+1/2%) per annum.
Payments will be made in sixty (60) substantially equal quarterly installments
of one hundred thousand, five hundred and eighty three dollars and eighty five
cents ($100,583.85) on the last day of each calendar quarter, with the first
payment due on June 30, 1995 and with a last payment of one hundred thousand,
five hundred and eighty four dollars and thirty seven cents ($100,584.37) due on
March 31, 2010.
This Note is issued under the Loan Agreement between the Company and
the Trustee of even date and it is subject to and entitled to the benefit of all
of the terms and conditions thereof. It may be prepaid in whole or in part
without premium, and upon the occurrence of any default specified therein, the
principal may become forthwith due and payable in the manner, upon conditions
and with the effect provided in said loan agreement; provided, however, that in
no event shall the Company have any additional remedies other than the right to
dispose of an amount of Financed Shares (as such term is defined in the Loan
Agreement) that is necessary to provide to the Company sufficient funds to bring
the Trustee current with his obligations under the Loan Agreement and hereunder.
EKCO GROUP, INC.
EMPLOYEES' STOCK OWNERSHIP PLAN
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Xxxx X. Xxxxxx, as Trustee
and not individually
