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BUSINESS TERM LOAN AGREEMENT
Loan Agreement dated March 8, 1996, among Linographics (Delaware) Corporation, a
Corporation [having its principal place of business]********577 Second Street,
San Francisco, CA ("Borrower") and guarantor(s) identified by their execution
below ("Borrower" and "Guarantor(s)" collectively referred to hereafter as the
"Obligors") and THE CHASE MANHATTAN BANK, N.A. (the "Bank"). The Borrower has
requested and the Bank has agreed to make a loan to the Borrower in the
principal amount of $150,000 (the "Loan"). The Bank and the Obligors agree as
follows:
(1) THE NOTE AND OTHER LOAN DOCUMENTS:
a. The frequency, time, place, mode and number of payments and the
interest rate and method of computing interest are described in
the Promissory Note evidencing the Loan, made substantially in
the form of Exhibit A hereof; and
b. Borrower shall have the right, upon three days written notice, to
prepay the Loan without penalty in an amount equal to an
installment (or multiples thereof) to be applied to installments
in inverse order of maturity.
c. As used in this Agreement "Loan Documents" means the Application,
this Agreement, the Note, and any Guaranty, Security Agreement,
Pledge Subordination Agreement or other document executed in
connection with the Loan.
(2) REPRESENTATIONS AND WARRANTIES: In order to induce the Bank to enter
into this Agreement and to make the Loan, each Obligor represents
and warrants to the Bank that:
a. All the information and statements contained in the Application
for the Loan, attached thereto or delivered to the Bank in
connection therewith (the "Application"), is complete and
accurate as of the date hereof.
b. (As to each Obligor that is not an individual) it:
(i) is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation or
formation;
(ii) is duly qualified and in good standing in every
jurisdiction in which it presently engages in business and
in which such qualification is required;
(iii) has the power, authority and legal right to own, or lease
and enjoy undisturbed, the assets of the business and
engage in business as now conducted;
(iv) has the power, authority and legal right to enter into and
execute this Agreement, the Note, and any other Loan
Document to which it is a party and
(v) the execution and performance of the Loan Documents to
which it is a party have been duly authorized and each Loan
Document is, or where delivered will be, a legal, valid and
binding obligation of the Obligor enforceable such Obligor
in accordance with its terms;
(vi) such Obligor has no subsidiaries except those listed on the
Application and in each instance it owns the stated
percentage of the outstanding stock of such subsidiaries.
FINANCIAL STATEMENTS, ACCURATE NO CHANGE
c. All financial statements of such Obligor previously delivered to
the Bank, whether or not in connection with this Loan, are
complete, correct present fairly the financial condition of such
Obligor, reflect every liability (whether direct or contingent)
and there has been no material adverse change in the condition
(financial or otherwise), business, operations or prospects of
such Obligor since latest financial statements delivered in
connection with the Application.
OTHER AGREEMENTS
d. This Agreement will not violate any other indenture or other
agreement nor any law, order, rule or regulation of any
government instrumentality applicable to such Obligor or by
which its property is bound nor will it result in the creation
or imposition of any other lien, except for those being created
by any Loan Document;
LITIGATION
e. There are no suits or proceedings pending or threatened against
such Obligor or affecting any of its properties (of which such
Obligor has any knowledge) except those previously disclosed and
explained in writing to the Bank;
TEXAS
f. Federal Income Tax returns of such Obligor have been audited
through the date shown on the application and deficiencies (if
any) resulting from such examinations have been reserved against
or discharged. Additionally, such Obligor has filed all required
Federal, state and local returns including those for corporate
franchise taxes, and has paid all taxes or assessments due
thereon;
ERISA
g. Such Obligor, if required, is in compliance in every material
respect with the applicable provisions of the Employee Retirement
Income Security Act of 1974 ("ERISA") and regulations or
published interpretations thereof and has not had a Reportable
Event occur with respect to any Plan as defined in ERISA; and
REGULATIONS; PURPOSE; USE OF PROCEEDS
h. Such Obligor is not engaged in the business of extending credit
for the purpose of purchasing or carrying "margin stock" (as
defined in Regulation U of the Board of Governors of the Federal
Reserve System). The proceeds of the Loan will be used for the
purpose described in the Application and no part of the proceeds
of this Loan will be used to purchase or carry such stock or
extend such credit or violate in any way Regulations G, T, U, or
X of such Board of Governors,
AFFIRMATIVE COVENANTS: Each Obligor (that is not an individual)
covenants and agrees that, from the date hereof until the full
satisfaction of the obligations under this Agreement, the Note and the
other Loan Documents, it shall:
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EXISTENCE AND PROPERTIES
a. Preserve, protect, renew and keep in full force and effect its
existence, rights, licenses, permits, patents, trademarks, trade
names and franchises; comply with all laws and regulations
applicable to it; not materially alter the nature or scope of
business as presently conducted by it and preserve, repair and
maintain all property utilized in the conduct of its business;
INSURANCE
b. Maintain insurance with financially sound insurers on its
properties against such risks as fire, public liability, lack
of fidelity by its employees all as is customary with
companies in similar businesses or as reasonably required by
the Bank;
FINANCIAL STATEMENTS
c. Furnish to the Bank the following financial information:
(i) not later than 120 days after the end of its fiscal year
its balance sheet prepared (audited) in the same manner as
those referred to in Section 2(c) all in accordance with
generally accepted accounting principles consistently
applied ("GAAP") and in the case of audited financial
statements, certified in a manner satisfactory to the Bank
by independent certified public accountants acceptable to
the Bank;
(ii) not later than 45 days after the end of each interim
three month period, balance sheets and statements of
income similar to those above; their accuracy certified
in a manner satisfactory to the Bank by the chief
financial officer.
(iii) with each set of statements described above certified by
the chief financial officer that no Event of Default has
occurred; and
(iv) within 45 days after the end of each quarterly period,
accounts receivable aging schedules in form satisfactory
to the Bank.
ACCESS TO PREMISES AND RECORDS
d. Upon written request, permit the Bank's representatives access
to any or all of such Obligor's properties and financial
records, to make extracts from such records and to discuss the
business, finances and affairs with its officers;
ADDITIONAL COLLATERAL
e. Upon the happening of any Event of Default, upon demand of the
Bank, furnish such further security as will be satisfactory to
the Bank;
NOTICES
f. It shall promptly give written notice to the Bank of:
(i) the details of any Reportable Event as defined in ERISA
which has occurred;
(ii) the occurrence of any event which alone or with notice,
the passage of time or both, would constitute an Event
of Default;
(iii) the commencement of any proceeding or litigation which,
if determined adversely, could have a material adverse
effect on the financial condition, properties, or
operations of such Obligor or its ability to conduct
business;
(iv) the formation of any subsidiary of Borrower after the
date of this Agreement which notice shall be accompanied
by the Resolution of the Board of Directors of such
subsidiary authorizing such subsidiary to executive this
Agreement as an additional Guarantor, together with such
execution by Amendment and such Guaranty.
Each individual Obligor covenants and agrees from the date
hereof until the full satisfaction of the obligations under this
Agreement and the Note:
(v) To give written notice to the Bank promptly of any
event referred to in Section 3(f) (ii) or (iii); and
(vi) To furnish to the Bank at the time the Borrower delivers
the annual financial statements referred to in 3(c).(i)
above, personal financial statements and/or income tax
returns of the type and in the equivalent detail of
those furnished to the Bank on or prior to the date
hereof, in a form acceptable to the Bank.
(vii) Upon the happening of any Event of Default, upon demand
of the Bank, furnish such further security as will be
satisfactory to the Bank.
(4) NEGATIVE COVENANTS: Each Obligor that is not an individual covenants and
agrees that, from the date hereof until the full satisfaction of obligations
under this Agreement and the Note, it will not without the Bank's prior written
consent:
INDEBTEDNESS
LIENS
b. Create, incur or permit to exist against any of its properties
or assets, real or personal, tangible or intangible, now owned
or hereafter acquired, any mortgage or other lien or
encumbrance, except:
(i) deposits or pledges relating to the payment of Xxxxxxx'x
Compensation, Unemployment Insurance, old age pension or
other Social Security or relating to the performance of
bids, tenders, contracts or leases or to statutory
obligations and surety or appeal bonds necessary to the
continuance of the business in the ordinary course;
(iii) liens shown on the Application, but not the extension of
such lien to support any other obligation.
CONTINGENT OBLIGATIONS
c. Assume, guarantee, endorse or otherwise become directly or
contingently liable for the obligations of any other Person
except for the Guaranty in connection with this Agreement and
the endorsement of negotiable instruments for deposit or
collection in the ordinary course of business;
LEASES
CAPITAL EXPENDITURES
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SALE OF ASSETS, NOTES OR ACCOUNTS
g. Sell, transfer, lease, sell and thereafter enter into an
arrangement with the buyer to rent or lease back, all or any
substantial part of its properties or assets; or sell, assign,
discount or otherwise dispose of any of its notes or accounts
receivable except for collection in the ordinary course of
business;
MERGER
h. Consolidate with or merge into any other corporation, or permit
another corporation to merge into it, or acquire all or
substantially all of the properties or assets of any other
Person ("Person" is defined as natural persons, corporations,
business trust associations, companies and partnerships);
LOANS OR INVESTMENTS
DIVIDENDS
WORKING CAPITAL
CURRENT RATIO
NET WORTH
DEBT WORTH
DEBT SERVICE COVERAGE
o. Permit the ratio of earnings before interest and taxes to Debt
Service for any fiscal year to be less than 1 to 1. ("Debt
Service" is defined as all mandatory payments of principal
required to be made for money borrowed plus interest expense.)
(5) EACH GUARANTOR AGREES:
a. To execute in favor of and in form satisfactory to the Bank, a
Subordination of any present or future indebtedness of Borrower
to such Guarantor;
b. To execute a guaranty of payment of Borrower's obligations
hereunder to the Bank; and
c. To notify the Bank of any material adverse change in the
financial condition of any Obligor as and when Guarantor shall
acquire knowledge thereof.
(6) EVENTS OF DEFAULT: In the case of the happening of any of the following
events ("Events of Default"):
a. the Borrower shall fail to pay the principal or interest on the
Note or any fee or other amount due hereunder as and when due
and payable;
b. any representation or warranty made herein, in any Loan
Document or in any other instrument, agreement or certificate
furnished in connection with any of the foregoing shall prove
false or misleading in any material respect;
c. any change shall occur which in the opinion of the Bank may
have a material adverse effect on the financial condition,
business, or prospects of any Obligor;
d. any occurrence delineated in any Loan Document as an Event of
Default;
e. any party shall default in the due observance or performance of
any negative covenant contained in this Agreement or any Loan
Document;
f. any Obligor shall fail to pay any indebtedness or any interest
thereon when due or shall fail to observe or perform any
covenant, condition or agreement on its part relating to such
indebtedness, if the effect of such failure to perform or
observe is to accelerate or permit the acceleration of, after
giving of notice or the passage of time, the maturity of such
indebtedness, whether such failure to perform or observe shall
have been waived;
g. A Reportable Event shall have occurred with respect to any Plan
as defined in ERISA and (i) the Bank has notified the affected
Obligor in writing that it has determined that such Reportable
Event constitutes reasonable grounds for termination of such
Plan by the Pension Benefit Guaranty Corporation or the
appointment of a trustee, to administer the Plan, by an
appropriate U.S. District Court or (ii) such termination
proceedings are commenced or such appointment occurs;
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h. any Loan Document shall at any time after its execution and
delivery and for any reason cease to be in full force and
effect, or the validity or enforceability thereof shall be
contested by any Person, or any Guarantor or Subordinator
shall deny it has any further liability or obligation
thereunder or fail to perform its obligations thereunder.
i. the loss of employment or death of any individual Obligor; or
the death of a partner in or dissolution or suspension of
business of any Obligor not an individual;
j. one or more judgments for the payment of money shall be
rendered against the Obligors and shall continue unsatisfied
and in effect for a period of 30 consecutive days without being
vacated, discharged, satisfied or stayed or bonded pending
appeal;
k. any Obligor shall be unable to pay its debts as they become
due; make an assignment for the benefit of creditors; petition
for the appointment of a custodian, receiver or trustee for it
or its assets; commence any proceeding under any bankruptcy, or
liquidation law of any jurisdiction; or have any such petition
or proceeding commenced, against it, which petition or
proceeding remains undismissed for a period of 30 days or more;
or (vi) shall suffer any custodianship, receivership or
trusteeship to continue undischarged for a period of 30 days or
more;
then, the Note shall be immediately due and payable in full,
both as to principal and interest, without presentment, demand,
protest or notice of any kind, all of which are hereby
expressly waived by the Borrower, anything contained herein, in
the Note, in the Security Agreement or elsewhere to the
contrary notwithstanding.
(7) MISCELLANEOUS:
EXPENSES
a. The Obligors will pay all costs and expenses incurred by the
Bank in connection with the Loan hereunder, the enforcement of
any provision of this Agreement, the Note, any other Loan
Document or the collection of any amount due hereunder or
thereunder, including but not limited to, the reasonable fees
and disbursements of outside counsel to the Bank and the
allocated costs of internal Bank counsel, incurred in the
course of the preparation or enforcement of the Loan Documents.
The obligations of the Obligors under this Section shall
survive the repayment of the Loan and the surrender of any
Loan Documents.
GAAP
b. All accounting terms used herein shall have the meaning
assigned to them by generally accepted accounting principles,
unless otherwise defined.
ADDITIONAL PROVISIONS
c.
AMENDMENTS; NO WAIVER OR DISCHARGE
d. No failure or delay by the Bank in exercising any right, power
or remedy hereunder upon a breach hereof shall constitute a
waiver of any such term, condition, covenant, agreement, right,
power of Bank from exercising any such rights, power or remedy
at any later time or times. This Agreement nor any other Loan
Document may be changed, modified or discharged or waived in
whole or in part and no right or remedy of Bank hereunder or
under any other Loan Document may be waived except upon written
agreement signed by Bank and any waiver shall be effective only
in the specific instance for which given. If any Obligor is a
partnership, this Agreement shall remain in force and
applicable, notwithstanding any changes in the individuals
composing the partnership, and the term Obligor shall include
any alternate or successor partnerships, but any predecessor
partnership and their partners shall not thereby be released
from any liability.
LAW GOVERNING
e. This Agreement and all rights hereunder, shall be governed by
the laws of the State of New York and applicable laws of the
United States and shall be binding upon the Obligors, their
heirs, executors, administrators, successors and assigns and
shall inure to the benefit of the Bank, its successors and
assigns. The obligations and conditions of this Agreement shall
continue until all indebtedness and liability of the Obligors to
the Bank hereunder has been paid and satisfied in full.
JURISDICTION; VENUE; IMMUNITIES
f. Borrower waives the right to trial by jury and agrees that the
venue of any litigation arising under this note shall be in New
York County and waives the right to interpose any counterclaim
or offset of any nature in any such litigation.
UNENFORCEABILITY OF PROVISION
g. Any provision hereunder which may prove unenforceable under any
law shall not affect the validity of any other provision
hereof.
By: /s/ Xxxxxxx X. Xxx THE CHASE MANHATTAN BANK, N.A.
--------------------------------------
Title President
By: By: /s/ Xxxxxx Xxxxxx
-------------------------------------- ---------------------------------
Title Title Vice President
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Guarantor:
--------------------------------------
Guarantor:
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TERM NOTE
$100,000 New York, New York March 11, 1996
FOR VALUE RECEIVED, LINOGRAPHICS (DELAWARE) CORPORATION (the "Borrower"),
hereby promises to pay to the order of THE CHASE MANHATTAN BANK, N.A. (the
"Bank"), at its office at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 in
lawful money of the United States and immediately available funds $100,000,
repayable in 60 consecutive installments of principal plus interest.
PAYMENT OPTIONS.
(A) EQUAL PAYMENT OPTION: If the Borrower has elected to make payments under
the equal payment option, a monthly payment of principal and interest must be
made on the ____ day of each month, commencing __________, ____ and ending
__________, ____. Each installment will be in the amount of $______, except as
provided herein.
After ____ monthly payments have been made, the Bank will send a notice of the
outstanding balance due and the Borrower shall pay such amount in no more than
the remaining (3) monthly payments.
(B) FLUCTUATING PAYMENT OPTION: If the Borrower has elected this option, a
monthly payment of principal in the amount of $1,667 plus interest on the
unpaid principal in the amount specified in the monthly notice which will be
sent by the Bank. Each payment will be due on the date specified in the notice.
Under either payment option the final installment will be in the amount
necessary to repay the remaining unpaid balance plus any accrued and unpaid
interest.
PAYMENTS IN GENERAL.
If any installment of this Note becomes due and payable on a Saturday, Sunday,
or other day when banks in New York are permitted or required to close, the
maturity thereof shall be extended to the next succeeding business day, and
interest shall be payable thereon at the rate herein specified during such
extension.
All payments will be applied first to interest and then to principal. This Note
may be prepaid in whole or in part and such payment applied to installments in
the inverse order of their maturities.
INTEREST. The Borrower promises to pay interest from the date of this Note to
but excluding the day the date of repayment in full (computed on the basis of
360 days) on the unpaid principal amount of the Note, at a rate per annum equal
to:
(BORROWER INITIAL ONE)
(A) Variable Rate (____) the rate as announced from time to time by the
Bank as its principal office in New York as its prime commercial lending
rate ("Prime Rate") plus one-half percent (1/2%); or
(B) Fixed Rate (____) a rate of _____ percent per annum (____%).
Any amount of principal hereof which is not paid when due, whether at stated
maturity, by acceleration or otherwise, shall bear interest from the date when
due until said principal amount is paid in full, payable on demand, at a rate
per annum equal at all times to four percent (4%) above the rate otherwise in
effect.
In no event shall this note bear interest at a rate higher than permitted by
applicable law.
If this note bears interest at a Variable Rate the amount of interest payable
hereunder may increase or decrease starting on _______, and on the _____ day of
each month thereafter if the Prime Rate in effect on such day is higher or
lower than the Prime Rate in effect on the ____ day of the previous month.
ADDITIONAL TERMS OF CREDIT AGREEMENT. This is the Note referred to in, and is
entitled to the benefits of, the Business Term Loan Agreement dated March 8,
1996 between the Borrower and the Bank (the "Credit Agreement"). The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events upon the
terms and conditions specified in the Credit Agreement.
SECURITY. Without limiting the Bank's rights under any other agreement, the
Borrower pledges and grants to the Bank a continuing lien upon assignment of
all right, title and interest of the Borrower in and to the balance of every
deposit account, now or at any time hereafter existing, of the Borrower with
any office of the Bank, want any other claims of the Applicant against the Bank
and in and to all money, instruments, securities, documents, claims and demands
and other property of the Borrower which may at any time come into the
possession, custody or control of any office of the Bank or any affiliate or
subsidiary thereof, for any purpose. The Borrower agrees that the receipt of
other security of whatever nature, including cash, shall not be deemed a waiver
of any of the Bank's rights or powers hereunder.
GOVERNING LAW. This Note shall be governed by the laws of the State of New
York, provided that, as to the maximum rate of interest which may be charged or
collected, if the laws applicable to the Bank permit it to charge or collect a
higher rate than the laws of New York, then such law shall be applied to
determine the maximum rate of interest which may lawfully be charged by the
Bank.
[Name of Borrower]
LINOGRAPHICS (DELAWARE) CORPORATION
By: Xxxxxxx X. Xxx
--------------------------------
Title: President
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TERM NOTE
$50,000 New York, New York July 26, 1996
FOR VALUE RECEIVED, Linographics (Delaware) Corporation (the "Borrower"),
hereby promises to pay to the order of THE CHASE MANHATTAN BANK, (the "Bank"),
at its office at 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 in lawful
money of the United States and immediately available funds $50,000, repayable
in 60 consecutive installments of principal plus interest.
PAYMENT OPTIONS.
(A) Equal Payment Option: If the Borrower has elected to make payments
under the equal payment option, a monthly payment of principal and interest
must be made on the ______ day of each month, commencing
__________________, ___________________ and ending _______________________,
_________. Each installment will be in the amount of $___________________,
except as provided herein.
After _____ monthly payments have been made, the Bank will send a notice of
the outstanding balance due and the Borrower shall pay such amount in no
more than the remaining three (3) monthly payments.
(B) Fluctuating Payment Option: If the Borrower has elected this option, a
monthly payment of principal in the amount of $834.00 plus interest on the
unpaid principal in the amount specified in the monthly notice which will
be sent by the Bank. Each payment will be due on the date specified in the
notice.
Under either payment option the final installment will be in the amount
necessary to repay the remaining unpaid balance plus any accrued and unpaid
interest.
PAYMENTS IN GENERAL.
If any installment of this Note becomes due and payable on a Saturday, Sunday,
or other day when banks in New York are permitted or required to close, the
maturity thereof shall be extended to the next succeeding business day, and
interest shall be payable thereon at the rate herein specified during such
extension.
All payments will be applied first to interest and then to principal. This Note
may be prepaid in whole or in part and such payment applied to installments in
the inverse order of their maturities.
INTEREST. The Borrower promises to pay interest from the date of this Note to
but excluding the day the date of repayment in full (computed on the basis of
360 days) on the unpaid principal amount of the Note, at a rate per annum equal
to:
(BORROWER INITIAL ONE)
(A) Variable Rate (________) the rate as announced from time to time by the
Bank as its principal office in New York as its prime commercial lending
rate ("Prime Rate") plus one half percent (1/2%); or
(B) Fixed Rate (________) a rate of ________ percent per annum (_______%).
Any amount of principal hereof which is not paid when due, whether at stated
maturity, by acceleration or otherwise, shall bear interest from the date when
due until said principal amount is paid in full, payable on demand, at a rate
per annum equal at all times to four percent (4%) above the rate otherwise in
effect.
In no event shall this note bear interest at a rate higher than permitted by
applicable law.
If this note bears interest at a Variable Rate the amount of interest payable
hereunder may increase or decrease starting on July 26, 1996 and on the first
day of each month thereafter if the Prime Rate in effect on such day is higher
or lower than the Prime Rate in effect on the first day of the previous month.
ADDITIONAL TERMS OF CREDIT AGREEMENTS. This is the Note referred to in, and is
entitled to the benefits of, the Business Term Loan Agreement dated July 26,
1996 between the Borrower and the Bank (the "Credit Agreement"). The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity of this Note upon the happening of certain stated events upon the terms
and conditions specified in the Credit Agreement.
SECURITY. Without limiting the Bank's rights under any other agreement, the
Borrower pledges and grants to the Bank a continuing lien upon and assignment
of all right, title and interest of the Borrower in and to the balance of every
deposit account, now or at any time hereafter existing, of the Borrower with
any office of the Bank, want any other claims of the Applicant against the Bank
and in and to all money, instruments, securities, documents, claims and demands
and other property of the Borrower which may at any time come into the
possession, custody or control of any office of the Bank or any affiliate or
subsidiary thereof, for any purpose. The Borrower agrees that the receipt of
other security of whatever nature, including cash, shall not be deemed a waiver
of any of the Bank's rights or powers hereunder.
GOVERNING LAW. This Note shall be governed by the laws of the State of New
York, provided that, as to the maximum rate of interest which may be charged or
collected, if the laws applicable to the Bank permit it to charge or collect a
higher rate than the laws of New York, then such law shall be applied to
determine the maximum rate of interest which may lawfully be charged by the
Bank.
[Name of Borrower]
Linographics (Delaware) Corporation
By: /s/ Xxxxxxx X. Xxx
---------------------------------
Title: President
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