XXXXX X
XXXXXX-XXXXXX XXXX XX XXX XXXXXX XXXXXX WORKING CAPITAL
GUARANTEE PROGRAM
BORROWER AGREEMENT
THIS BORROWER AGREEMENT (this "Agreement") is made and entered into by
the entity identified as the Borrower on the signature page hereof (the
"Borrower") and is acknowledged by the institution identified as the
Lender on the signature page hereof (the "Lender").
RECITALS
A. The Lender shall make a loan (the "Loan") to the Borrower for the
purpose of providing the Borrower with pre-export working capital to
finance the manufacture, production or purchase and subsequent export sale
of the Items (as hereinafter defined).
B. The Loan shall be in a principal amount (the "Loan Amount") not to
exceed at any time outstanding the amount specified in Section (5)(A) of
the Loan Authorization Agreement between the Lender and the Export-Import
Bank of the United States (Eximbank") which is attached hereto as Annex A1
or Annex A2 and incorporated herein as a part of this Agreement. If the
Loan is being made pursuant to the Lender's Delegated Authority from
Eximbank, all references herein to the Loan Authorization Agreement shall
be deemed to be to the Loan Authorization Notice provided to Eximbank and
the Borrower by the Lender.
C. The Loan shall be evidenced by a valid and enforceable promissory note
payable by the Borrower to the order of the Lender (the "Note") and shall
be made pursuant to a written agreement related solely thereto between the
Borrower and the Lender (the "Loan Agreement").
D. A condition precedent to the making of the Loan by the Lender is that
Eximbank guarantee the payment of ninety percent (90%) of the Loan Amount
and all interest accrued thereon, subject to the terms and conditions of a
master guarantee agreement (the "Master Guarantee Agreement") between
Eximbank and the Lender.
E. In consideration for and as a condition precedent to the Lender's
making the Loan and Eximbank's entering into the Master Guarantee
Agreement, the Borrower shall execute this Agreement for the benefit of
the Lender and Eximbank.
NOW, THEREFORE, the Borrower hereby agrees as follows:
2
ARTICLE I
DEFINITIONS
"Accounts Receivable" shall mean those trade accounts from the sale of the
Items due and payable to the Borrower in the United States and any notes,
drafts, letters of credit or insurance proceeds supporting payment
thereof.
"Availability Date" shall mean the last date on which the Lender may make
a Disbursement as set forth in Section (10) of the Loan Authorization
Agreement or, if such date is not a Business Day, the next Business Day
thereafter.
"Borrowing Base" shall mean the Collateral Value as discounted by the
applicable Disbursement Rate(s).
"Borrowing Base Certificate" shall mean the certificate in form provided
by the Lender and executed by the Borrower setting forth the Borrowing
Base supporting one or more Disbursements.
"Business Day" shall mean any day on which the Federal Reserve Bank of New
York is open for business.
"Buyer" shall mean an entity which has entered into one or more Export
Orders with the Borrower.
"Closing Date" shall mean the date on which the Loan Documents are
executed by the Borrower.
"Collateral" shall mean the property of the Borrower in which the Borrower
has granted to the Lender a valid and enforceable security interest as
security for the payment of all principal and interest due under the Loan,
and which is identified in Section (6) of the Loan Authorization
Agreement, including all proceeds (cash and non-cash) thereof.
"Collateral Value" shall mean at any given time the value of all
Collateral against which Disbursements may be made as set forth in Section
(5)(C) of the Loan Authorization Agreement, valued according to GAAP.
"Country Limitation Schedule" shall mean the most recent schedule
published by Eximbank and provided to the Borrower by the Lender which
sets forth on a country by country basis whether and under what conditions
Eximbank will provide coverage for the financing of export transactions to
countries listed therein.
Debarment Regulations shall have the meaning set forth in Section 2.16.,
3
"Disbursed Amount" shall mean the aggregate outstanding amount of the
Disbursements.
"Disbursement" shall mean an advance of the Loan from the Lender to the
Borrower under the Loan Agreement.
"Disbursement Rate" shall mean the rate specified in Section (5)(C) of the
Authorization Agreement for each category of Collateral.
"Dollars" or "$" shall mean the lawful money of the United States of
America.
"Export Order" shall mean a written export order or contract for the
purchase by the Buyer from the Borrower of any of the Items.
"GAAP" shall mean the generally accepted accounting principles issued by
the American Institute of Certified Public Accountants.
"Guarantor" shall mean each person or entity, if any, identified in
Section (3) of the Loan Authorization Agreement who shall guarantee
(jointly and severally if more than one)the Borrower' s obligation to
repay all mounts outstanding under the Note.
"Inventory" shall mean the raw materials work-in-process and finished
goods purchased or manufactured by the Borrower for resale and located in
the United States.
"Items" shall mean the finished goods or services which are intended for
export, as specified in Section (4)(A) of the Loan Authorization
Agreement.
"Letter of Credit" shall mean an irrevocable letter of credit subject to
XXX 000, xxxxxxx xx xxx Xxxxxx Xxxxxx or at the issuing bank and issued
for the benefit of the Borrower on behalf of a Buyer in connection with
the purchase of the Items.
"Loan Documents" shall mean the Note, the Loan Agreement, this Agreement
and any other instrument, agreement or document previously, simultaneously
or hereafter executed by the Borrower or any Guarantors evidencing,
securing, guaranteeing or in connection with the Loan.
Principals shall have the meaning set forth in Section 2.16.
"Revolving Loan" shall mean a Loan under which amounts disbursed and
repaid may be disbursed on a continuous basis during the term of the Loan.
"Transaction Specific Loan" shall mean a Loan under which amounts
disbursed and repaid may not be disbursed again.
"U.S." or "United States" shall mean the United States of America and its
territorial
4
possessions.
"U.S. Content" shall mean with respect to any Item all the labor,
materials and services which are of U.S. origin or manufacture, and which
are incorporated into an Item in the United States.
ARTICLE II
OBLIGATIONS OF THE BORROWER
Until payment in full of the Loan, the Borrower agrees to the following:
Section 2.1 Use of Disbursements. The Borrower shall use Disbursements
only for the purpose of enabling the Borrower to finance the cost of
manufacturing, producing, purchasing or selling the Items. The Borrower
may not use Disbursements for the purpose of: (a) servicing any of the
Borrower' s pre-existing or future indebtedness unrelated to the Loan; (b)
acquiring fixed assets or capital goods for use in the Borrower's
business; (c) acquiring, equipping or renting commercial space outside of
the United States; (d) paying the salaries of non-U.S. citizens or non-
U.S. permanent residents who are located in offices outside the United
States; or (e) serving as a retainage or warranty bond.
In addition, Disbursements may not be used to finance the manufacture,
purchase or sale of any of the following:
(a) Items to be sold to a Buyer located in a country in which Eximbank is
legally prohibited from doing business as designated in the Country
Limitation Schedule;
(b) that part of the cost of the Items which is not U.S. Content unless
such part is not greater than fifty percent (50 % ) of the cost of the
Items and is incorporated into the Items in the United States;
(c) defense articles or defense services; or
(d) without Eximbank's prior written consent, any Items to be used in the
construction, alteration, operation or maintenance of nuclear power,
enrichment, reprocessing, research or heavy water production facilities.
Section 2.2 Borrowing Base Certificates and Export Orders. In order to
receive a Disbursement under the Loan, the Borrower shall deliver to the
Lender a Borrowing Base Certificate current within the past five (5)
Business Days and a copy of the Export Order(s) (or, for Revolving Loans,
if permitted by the Lender, a written summary of the Export
Orders) against which the Borrower is requesting a Disbursement. If the
Lender permits summaries of Export Orders, the Borrower shall also deliver
promptly to the Lender copies of any Export Orders
5
requested by the Lender. Additionally, the Borrower shall deliver to the
Lender at least once every thirty (30) calendar days a Borrowing Base
Certificate current within the past five (5) Business Days, which
requirement may be satisfied by submission of a Borrowing Base Certificate
when requesting a Disbursement.
Section 2.3 Exclusions from the Borrowing Base. In determining the amount
of a requested Disbursement, the Borrower shall exclude from the Borrowing
Base the following:
(a) any Inventory which is not located in the United States;
(b) any demonstration Inventory or Inventory sold on consignment;
(c) any Inventory consisting of proprietary software;
(d) any Inventory which is damaged, obsolete, returned, defective,
recalled or unfit for further processing;
(e) any Inventory which has been previously exported from the United
States;
(f) any Inventory which constitutes defense articles or defense services
or any Accounts Receivable generated by sales of such Inventory;
(g) any Inventory which is to be incorporated into Items destined for
shipment to, and any Account Receivable in the name of a Buyer located in,
a country in which Eximbank is legally prohibited from doing business as
designated in the Country Limitation Schedule;
(h) any Inventory which is to be incorporated into Items destined for
shipment to, and any Account Receivable in the name of a Buyer located in,
a country in which Eximbank coverage is not available for commercial
reasons as designated in the Country Limitation Schedule, unless and only
to the extent that such Items are to be sold to such country on terms of a
Letter of Credit confirmed by a bank acceptable to Eximbank;
(i) any Inventory which is to be incorporated in the Items whose sale
would result in an ineligible Account Receivable;
(j) any Account Receivable with a term in excess of net one hundred eighty
(180) days;
(k) any Account Receivable which is more than sixty (60) calendar days
past the original due date, unless it is insured through Eximbank export
credit insurance for comprehensive commercial and political risk, or
through Eximbank approved private insurers for comparable coverage, in
which case ninety (90) calendar days shall apply;
6
(l) any intra-company Account Receivable or any Account Receivable from a
subsidiary of the Borrower, from a person or entity with a controlling
interest in the Borrower or from an entity which shares common controlling
ownership with the Borrower;
(m) any Account Receivable evidenced by a Letter of Credit, until the date
of shipment of the Items covered by the subject Letter of Credit;
(n) any Account Receivable which the Lender or Eximbank, in its reasonable
judgment, deems uncollectible for any reason;
(o) any Account Receivable payable in a currency other than Dollars,
except as may be approved in writing by Eximbank;
(p) any Account Receivable from a military Buyer, except as may be
approved in writing by Eximbank; and
(q) any Account Receivable due and collectible outside the United States,
except as may be approved in writing by Eximbank.
Section 2.4 Schedules, Reports and Other Statements. The Borrower shall
submit to the Lender in writing each month (a) an Inventory schedule for
the preceding month and (b)an Accounts Receivable aging report for the
preceding month detailing the terms of the amounts due from each Buyer.
The Borrower shall also furnish to the Lender promptly upon request such
information, reports, contracts, invoices and other data concerning the
Collateral as the Lender may from time to time specify..
Section 2.5 Additional Security or Payment. The Borrower shall at all
times ensure that the Borrowing Base exceeds the Disbursed Amount. If
informed by the Lender or if the Borrower otherwise has actual knowledge
that the Borrowing Base is at any time less than the Disbursed Amount, the
Borrower shall, within five (5) Business Days, either (a) furnish
additional security to the Lender, in form and amount satisfactory to the
Lender and Eximbank, or (b) pay to the Lender an amount equal to the
difference between the Disbursed Amount and the Borrowing Base.
Section 2.6 Continued Security Interest. The Borrower shall notify the
Lender in writing within five (5) Business Days if (a) the Borrower
changes its name or identity in any manner, (b) the Borrower changes the
location of its principal place of business, (c) the nature of any of the
Collateral is changed or any of the Collateral is transferred to another
location or (d) any of the books or records related to the Collateral are
transferred to another location. The Borrower shall execute such
additional financing statements or other documents as the Lender may
reasonably request in order to maintain its perfected security
interest in the Collateral.
Section 2.7 Inspection of Collateral. The Borrower shall permit the
representatives of the Lender and Eximbank to make at any time during
normal business hours reasonable inspections
7
of the Collateral and of the Borrower's facilities, activities, and books
and records, and shall cause its officers and employees to give full
cooperation and assistance in connection therewith.
Section 2.8 Notice of Debtor's Relief, Dissolution and Litigation. The
Borrower shall notify the Lender in writing within five (5) Business Days
of the occurrence of any of the following:
(a) a proceeding in bankruptcy or an action for debtor's relief is filed
by, against, or on behalf of the Borrower;
(b) the Borrower fails to obtain the dismissal or termination within
thirty (30) calendar days of the commencement of any proceeding or action
referred to in (a) above;
(c) the Borrower begins any procedure for its dissolution or liquidation,
or a procedure therefore has been commenced against it; or
(d) any material litigation is filed against the Borrower.
Section 2.9 Insurance. The Borrower shall maintain insurance coverage in
the manner and to the extent customary in businesses of similar character.
Section 2.10 Merger or Consolidation. Without the prior written consent of
Eximbank and the Lender, the Borrower shall not (a) merge or consolidate
with any other entity, (b) sell, lease, transfer or otherwise dispose of
any substantial part of its assets, or any part of its assets which are
essential to the conduct of its business or operations, (c) make any
material change in its organizational structure or identity, or (d) enter
into any agreement to do any of the foregoing.
Section 2.11 Reborrowings and Repayment Terms. (a) If the Loan is a
Revolving Loan, provided that the Borrower is not in default under any of
the Loan Documents, the Borrower may borrow, repay and reborrow amounts
under the Loan until the close of business on the Availability Date.
Unless the Revolving Loan is renewed or extended by the Lender, the
Borrower shall pay in full the outstanding Loan Amount and all accrued and
unpaid interest thereon no later than the first Business Day after the
Availability Date.
(b) If the Loan is a Transaction Specific Loan, the Borrower shall, within
two (2) Business Days of the receipt thereof, pay to the Lender (for
application against the outstanding Loan Amount and accrued and unpaid
interest thereon) all checks, drafts, cash and other remittances it may
receive in payment or on account of the Accounts Receivable or any other
Collateral, in precisely the form received (except for the endorsement of
the Borrower where necessary). Pending such deposit, the Borrower shall
not commingle any such items of payment with any of its other funds or
property, but will hold them separate and apart.
Section 2.12 Cross Default. The Borrower shall be deemed in default under
the Loan if
8
the Borrower fails to pay when due any amount payable to the Lender under
any loan to the Borrower not guaranteed by Eximbank.
Section 2.13 Financial Statements. The Borrower shall provide quarterly
financial statements to the Lender no later than forty-five (45) days
after the end of each quarter. This is in addition to any other financial
statements that may be required by the Lender under the Loan Agreement.
Section 2.14 Taxes, Judgments and Liens. The Borrower shall remain current
on all of its federal, state and local tax obligations. In addition, the
Borrower shall notify the Lender in the event (i) any judgment is rendered
against the Borrower, or (ii) any lien is filed against any of the assets
of the Borrower.
Section 2.15 Munitions List. If any of the Items are articles, services,
or related technical data that are listed on the United States Munitions
List (part 121 of title 22 of the Code of Federal Regulations), the
Borrower shall send a written notice promptly to the Lender describing the
Item(s) and the corresponding invoice amount.
Section 2.16 Suspension and Debarment, etc. On the date of this Agreement
neither the Borrower nor its Principals (as defined below) are (A)
debarred, suspended, proposed for debarment with a final determination
still pending, declared ineligible or voluntarily excluded (as such terms
are defined under any of the Debarment Regulations referred to below) from
participating in procurement or nonprocurement transactions with any
United States federal government department or agency pursuant to any of
the Debarment Regulations (as defined below) or (B ) indicted, convicted
or had a civil judgment rendered against the Borrower or any of its
Principals for any of the offenses listed in any of the Debarment
Regulations. Unless authorized by Eximbank, the Borrower will not
knowingly enter into any transactions in connection with the Item with any
person who is debarred, suspended, declared ineligible or voluntarily
excluded from participation in procurement or nonprocurement transactions
with any United States federal government department or agency pursuant to
any of the Debarment Regulations. The Borrower will provide immediate
written notice to the Leader if at any time it learns that the
certification set forth in this Section 2.16 was erroneous when made or
has become erroneous by reason of changed circumstances. For the purposes
hereof, (1) "Principals" shall mean any officer, director, owner, partner,
key employee, or other person with primary management or supervisory
responsibilities with respect to the Borrower; or any other person
(whether or not an employee) who has critical influence on or substantive
control over the transaction covered by this Agreement and (2) the
Debarment Regulations shall mean (x) the Governmentwide Debarment and
Suspension (Nonprocurement) regulations (Common Rule), 53 Fed. Reg. 19204
(May 26, 1988), (y) Subpart 9.4 (Debarment, Suspension, and Ineligibility)
of the Federal Acquisition Regulations, 48 C.F.R. 9.400-9.409 and (z) the
revised overnmentwide Debarment and Suspension (Nonprocurement)
regulations (Common Rule), 60 Fed. Reg. 33037 (June 26, 1995).
Section 2.17 Special Conditions. The Borrower shall comply with all
Special Conditions, if any, referenced in Section (11 ) of the Loan
Authorization Agreement or the Loan Authorization Notice.
9
ARTICLE III
RIGHTS AND REMEDIES
Section 3.1 Indemnification. Upon Eximbank's payment of a claim to the
Lender in connection with the Loan pursuant to the Master Guarantee
Agreement, Eximbank shall assume all rights and remedies of the Lender
under the Loan Documents and may enforce any such rights or remedies
against the Borrower, the Collateral and any Guarantors. Additionally, the
Borrower shall hold Eximbank and the Lender harmless from and indemnify
them against any and all liabilities, damages, claims, costs and losses
incurred or suffered by either of them resulting from (a) any materially
incorrect certification or statement knowingly made by the Borrower or its
agent to Eximbank or the Lender in connection with the Loan, this
Agreement or any of the other Loan Documents or (b) any material breach by
the Borrower of the terms and conditions of this Agreement or any of the
other Loan Documents. The Borrower also acknowledges that any statement,
certification or representation made by the Borrower in connection with
the Loan is subject to the penalties provided in Article 18 U.S.C. Section
1001.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Governing Law. This Agreement shall be governed by, and
construed in accordance with the law of the State of New York, United
States of America.
Section 4.2 Notification. All notifications required by this Agreement
shall be given in the manner provided in the Loan Agreement.
Section 4.3 Partial Invalidity. If at any time any of the provisions of
this Agreement becomes illegal, invalid or unenforceable in any respect
under the law of any jurisdiction, neither the legality, the validity nor
the enforceability of the remaining provisions hereof shall in any way be
affected or impaired.
10
IN WITNESS WHEREOF, the Borrower has caused this Agreement to be duly
executed as of the 20 day of July, 1999.
Web Press Corporation
(Name of Borrower)
By /s/ Xxxxx X. Xxxxxxxx
(Print or Type)
Title Vice President of Finance
(Print or Type)
ACKNOWLEDGED:
KeyBank National Association
(Name of Lender)
By /s/Xxxxxxx X. Xxxxx
Name Xxxxxxx X. Xxxxx
(Print or Type)
Title Vice President
(Print or Type)
Guaranteed Loan No. AP073281XX
ANNEXES:
A1 - Loan Authorization Agreement or
A2 - Loan Authorization Notice
(Revised April 1, 1996)
