REVOLVING LINE OF CREDIT AND TERM LOAN AGREEMENT
REVOLVING
LINE
OF CREDIT AND TERM LOAN AGREEMENT
This
Revolving Line of Credit and Term Loan Agreement (this “Agreement”) is made as
of the 30th
day of
November, 2007 by and between National Investment Managers Inc., a Florida
corporation having an address of 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx,
XX
00000 (the “Borrower”), and RBS Citizens, National Association, a national bank
having a lending office at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 (the “Lender”). Any
capitalized terms used in this Agreement shall have the meanings set forth
in
Section 1(a) below.
RECITAL
WHEREAS,
the Borrower and the Lender hereby desire to enter into this Agreement in order
to provide for (i) a revolving line of credit facility by Lender to Borrower,
the proceeds of which are to be used by Borrower for the refinance of the
Existing Term Loan and for working capital purposes, and (ii) a term loan by
Lender to Borrower, the proceeds of which are to be used by Borrower for the
refinance of Existing Term Loan and for the finance of Financed Acquisitions
during the Availability Period, each upon the terms and conditions set forth
herein.
AGREEMENTS
The
Borrower and the Lender hereby respectively act and agree as
follows:
1. Definitions.
(a) Defined
Terms.
As used
in this Agreement, the following capitalized terms shall have the meanings
there
indicated:
“Acquired
EBITDA”
means,
with respect to any Acquired Entity for any period, the amount for such period
of EBITDA of such Acquired Entity (determined as if references to the Borrower
and its Subsidiaries in the definition of EBITDA were references to such
Acquired Entity and its Subsidiaries) measured and calculated jointly by Lender
and the Borrower, all as determined on a consolidated basis for such Acquired
Entity provided the final calculation of Acquired EBITDA shall be in Lender’s
sole discretion. Borrower shall report the remaining Acquired EBITDA for each
Acquired Entity quarterly on the Covenant Compliance Certificate.
“Acquired
Entity”
means
a
Person that is in the same or similar line of business as the Borrower or any
of
the Guarantors.
“Acquisition”
means
the acquisition by Borrower or any Guarantor of all or substantially all of
the
assets or equity interests of an Acquired Entity.
1
“Adjusted
EBITDA”
means
EBITDA, plus
Acquired
EBITDA (if applicable). Borrower shall be permitted for the fiscal quarter
ending December 31, 2007 to add back into the calculation of Adjusted EBITDA
extraordinary expenses incurred in Borrower’s first fiscal quarter 2007 totaling
$243,000 and in Borrower’s second fiscal quarter 2007 totaling $450,000 . In
addition, Borrower shall be permitted for the fiscal quarter ending March 31,
2008 to add back into the calculation of Adjusted EBITDA extraordinary expenses
incurred in Borrower’s second fiscal quarter 2007 totaling $450,000.
“Adjusted
LIBOR Rate”
shall
be (i) with respect to the Term Loan, as defined in Rider
A
attached
to the Term Note entitled “RBS Citizens Standard LIBOR Provisions” and (ii) with
respect to the Revolving Loan, as defined in Rider
A
attached
to the Revolving Note entitled “RBS Citizens Standard LIBOR Provisions
(Revolving Line of Credit).”
“Aggregate
Revolving Advances”
means
the aggregate principal amount of all Revolving Advances from the Lender to
the
Borrower outstanding at any time.
“Aggregate
Term Loan Advances”
means
the aggregate principal amount of all Term Loan Advances from the Lender to
the
Borrower, irrespective of whether Borrower may have repaid any principal of
any
Term Loan Advance.
“Amortization
Period”
means
the period commencing upon the expiration of the Availability Period and
continuing until the Term Loan Maturity Date.
“Availability
Period”
means
the period commencing on the date hereof and continuing until November 30,
2008.
“Basis
Point”
means
one one-hundredth of one percent (1/100%).
“Borrower
Security Agreement”
means
a
certain Security Agreement of even date herewith from Borrower to Lender
securing all obligations of Borrower to Lender under the Loan Documents and
granting to Lender a first priority security interest in all assets of the
Borrower.
“Business
Day”
means
any day which is not a Saturday, a Sunday or a public holiday under the laws
of
the United States of America or the Commonwealth of Massachusetts applicable
to
a banking association.
“Capital
Expenditures”
means
the aggregate amount of payments made by Borrower for the rental, lease,
purchase, construction or use of any property, the value or cost of which under
GAAP would appear on Borrower’s balance sheet in the category of property, plant
or equipment or other fixed assets (but not including acquisitions); provided
however, that Capital Expenditures shall not include the purchase price for
an
Acquisition permitted by this Agreement.
“Cash
Management Account”
means
a
certain deposit account established by Borrower with Lender either before or
after the date of this Agreement and to be governed by the terms of the Cash
Management Agreement.
2
“Cash
Management Agreement”
means
the standard documentation used by Lender’s cash management department with
respect to establishing the cash management relationship with Borrower and
Guarantors, as applicable.
“Change
of Control”
Change
of Control shall mean any of the following: (i) any person or group of persons
(within the meaning of the Securities Exchange Act of 1934) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of 1934,)
of 30% or more of the issued and outstanding shares of capital stock of Borrower
having the right to vote for the election of directors of Borrower under
ordinary circumstances; (ii) the occupation of a majority of the seats (other
than vacant seats) on the board of directors of Borrower by Persons who were
neither (i) nominated by the board of directors of Borrower nor (ii) appointed
by directors so nominated; or (iii) Borrower ceases to own and control all
of
the economic and voting rights associated with all of the outstanding capital
stock of any of its Subsidiaries.
“Collateral”
means
any collateral pledged by Borrower or Guarantors to Lender as security for
their
obligations under the Loan Documents, including any collateral pledged pursuant
to the Borrower Security Agreement, Guarantors Security Agreements, and the
Stock Pledge Agreement.
“Covenant
Compliance Certificate”
means
a
certificate in the form attached hereto as Exhibit
A.
“Default
Event”
means
any event which, with the giving of notice or the lapse of time or both, would
become an Event of Default.
“Distributions”
means
amounts paid or payable (without duplication) as dividends, distributions,
or
owner withdrawals, and includes any purchase, redemption or other retirement
of
any ownership interest directly or indirectly through a subsidiary or otherwise
and includes return of capital to shareholders, partners, or
members.
“EBITDA”
means,
for any period, for the Borrower and its Subsidiaries on a consolidated basis,
an amount equal to Net Income for such period plus:
(a) |
the
following to the extent deducted in calculating such Net Income:
|
(i) |
consolidated
interest charges for such period,
|
(ii) |
the
provision for federal, state, provincial, local and foreign income
taxes
payable by the Borrowers and their Subsidiaries for such period,
|
3
(iii) |
the
amount of depreciation and amortization expense deducted in determining
such Net Income,
|
(iv) |
non-cash
charges for stock based
compensation,
|
(v) |
non-cash
extraordinary and unusual or non-recurring writedowns or writeoffs,
|
minus:
(b) any
extraordinary , unusual, non-recurring or non-operating gains;
all
calculated for the Borrower and its Subsidiaries in accordance with GAAP on
a
consolidated basis.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended.
“Event
of Default”
shall
be as defined in Section 6(a).
“Existing
Term Loan”
means
a
certain term loan facility by and between Borrower and Laurus Master Fund,
Ltd.
“Expiration
Date”
means
July 31, 2010
“Financed
Acquisition”
means
an Acquisition for which Borrower has requested a Term Loan Advance to finance
all or a portion of such Acquisition.
“Financed
Acquisition Conditions”
means
the following terms and conditions:
(i)
|
Lender
has consented to the Acquisition and the Term Loan Advance in its
reasonable discretion;
|
(ii) |
no
Default Event or Event of Default shall exist under the Loan Documents;
|
(iii)
|
the
Lender shall have received a certificate of an officer of the Borrower
demonstrating on a pro forma basis compliance with the financial
covenants
set forth in Section 5 hereof after giving effect to the consummation
of
the Acquisition;
|
(iv)
|
the
Acquired Entity shall have executed and deliver to Lender (A) an
unconditional and joint and several guaranty of the Borrower’s obligations
under the Loan Documents in substantially the form of the guaranty
attached hereto as Exhibit
B;
(B) a security agreement (in substantially the form attached hereto
as
Exhibit
C)
granting to Lender a first-priority security interest in all assets
of the
Acquired Entity; and (C) an equity pledge of the ownership interests
of
any Subsidiaries of the Acquired Entity, if applicable and if required
by
Lender;
|
4
(v)
|
the
Lender shall have reviewed and approved such financial information
regarding the Acquired Entity as may be reasonably requested by
Lender;
|
(vi)
|
the
Lender shall have reviewed and approved any documents and instruments
evidencing, guarantying, and/or securing the Borrower’s obligations to
purchase, and the seller’s obligation to sell, the equity interests of the
Acquired Entity, including, without limitation, any stock purchase
agreements and any documents and instruments evidencing any Seller
Financing, if applicable; and
|
(vii)
|
if
the Borrower shall enter into any Seller Financing in connection
with the
Acquisition, the holder or holders of such Seller Financing shall
execute
and deliver to Lender a Seller Subordination
Agreement.
|
“Financial
Information”
shall
be as defined in Section 5(c) below.
“Fixed
Charge Coverage Ratio”
means
the ratio of (i) Adjusted EBITDA, less
cash
taxes paid, less
Capital
Expenditures; to (ii) current portions of long term Indebtedness, plus
interest
expense on Indebtedness. For purposes of the Fixed Charge Coverage Ratio, the
“interest expense on Indebtedness” shall be annualized for the first three (3)
quarters tested after the date hereof.
“Florida
Secretary”
means
the Secretary of the State of Florida.
“GAAP”
means
generally accepted accounting principles consistently applied.
“Guaranties”
means,
collectively, those Guaranties granted from time to time by each of the
Guarantors in favor of Lender, pursuant to which the Guarantors have
unconditionally and jointly and severally guarantied to Lender all obligations
of Borrower under the Loan Documents.
“Guarantors”
means,
collectively, those Persons identified on Schedule
A
attached
hereto and made a part hereof and any other guarantor of the obligations of
Borrower to Lender under the Loan Documents. Upon the acquisition of any
Acquired Entity, the term “Guarantors” shall also include such Acquired Entity,
and Lender, at its option, may amend Schedule A to add such Acquired Entity;
provided, however, that Lender’s failure to so amend Schedule A shall not affect
or impair the obligations of such Acquired Entity under its
Guaranty.
“Guarantors
Security Agreements”
means,
collectively, those certain Security Agreements of even date herewith from
each
of the Guarantors to Lender (or delivered by an Acquired Entity from time to
time in connection with an Acquisition) securing all obligations of Guarantors
to Lender under the Guaranties and granting to Lender a first priority security
interest in all assets of each of the Guarantors.
5
“Hedging
Contract”
shall
be
as defined in Rider
A
attached
to the Term Note entitled “RBS Citizens Standard LIBOR Provisions.”
“Indebtedness”
means
any obligations of a Person, whether current or long-term, which in accordance
with GAAP would be included as liabilities upon such Person’s balance sheet on
the date on which such Indebtedness is to be determined, and shall also include
guaranties, endorsements (other than for collection in the ordinary course
of
business), or other arrangements whereby responsibility is assumed for the
obligations of others, whether by agreement to purchase or otherwise acquire
the
obligations of others, including any agreement, contingent or otherwise, to
furnish funds through the purchase of goods, supplies or services for the
purpose of payment of the obligations of others.
“Initial
Revolving Advance”
means
the initial Revolving Advance to be made hereunder in the principal amount
of
$1,000,000.00.
“Initial
Term Loan Advance”
means
the initial Term Loan Advance to be made hereunder in the principal amount
of
$8,000,000.00.
“Intangible
Assets”
means
goodwill, write-up in book value of assets, the excess of cost over book value
of acquired businesses accounted for by the purchase method, customer lists,
non-compete agreements, formulae, trademarks, trade names, patents, patent
rights and deferred expenses (including, but not limited to, unamortized debt
discount and expense, organizational expense and packaging and product
development and design expense).
“Interest
Coverage Ratio”
means
the ratio of Adjusted EBITDA less Acquired EBITDA to interest expense on
Indebtedness. For purposes of calculating the Interest Coverage Ratio, the
“interest expense on Indebtedness” shall be annualized for the first three (3)
quarters tested after the date hereof.
“Junior
Lender”
means
Woodside.
“Junior
Loan”
means
a
certain term loan in the original principal amount of $12,000,000.00 made by
Junior Lender to Borrower.
“Junior
Loan Documents”
means
all documents and instruments evidencing, securing, and guarantying the Junior
Loan.
“LIBOR
Rate Margin for Revolving Loan”
means
the “LIBOR Rate Margin” as defined in Rider
A
to the
Revolving Note.
“LIBOR
Rate Margin for the Term Loan”
means
the
number of Basis Points in the table set forth below corresponding to the then
applicable ratio of Total Funded Debt to EBITDA to be used under the Term Loan.
6
Level:
|
Ratio
of Total Funded Debt to EBITDA:
|
LIBOR
Rate Margin:
|
||
I
|
when
less than 2.0 to 1.0
|
275
Basis Points
|
||
II
|
when
greater than or equal to 2.0 to 1.0, but less than 3.0 to
1.0
|
300
Basis Points
|
||
III
|
when
greater than or equal to 3.0 to 1.0
|
325
Basis Points
|
As
of the
date of this Agreement, the LIBOR Rate Margin for the Term Loan shall be set
at
Level III in the table above. Changes in the LIBOR Rate Margin for the Term
Loan, if applicable, shall occur on the first Business Day following the day
on
which the quarterly financial statements and quarterly Covenant Compliance
Certificate have been received by Lender in accordance with Section 5(c)(2).
“Lien”
means
any mortgage, pledge, assignment, lien, charge, encumbrance or security interest
of any kind whatsoever, or the interest of a vendor or lessor under a
conditional sale, title retention, or capital lease.
“Loan
Documents”
means,
collectively, the Notes, this Agreement, the Guaranties, the Security
Agreements, the Stock Pledge Agreement, the Subordination Agreement, the Cash
Management Agreement, and all other documents executed by Borrower and
Guarantors in connection with this Agreement.
“Loans”
means,
collectively, (i) the Revolving Loan and (ii) the Term Loan.
“Material
Adverse Effect”
means
(i) a material adverse change in, or a material adverse effect on, the
operations, business, assets, properties, liabilities (actual or contingent),
condition (financial or otherwise) or prospects of the Borrower or any of the
Guarantors; (ii) a material impairment of the rights and remedies of the Lender,
or of the ability of the Borrower or any Guarantor to perform its obligations
under any of the Loan Documents; or (iii) a material adverse effect upon the
legality, validity, binding effect or enforceability against the Borrower or
any
of the Guarantors of any Loan Document to which it is a party.
“Maximum
Revolving Credit”
means
$2,000,000.00.
“Net
Income”
(or
“Net
Loss”)
means
the book net income (or book net loss, as the case may be) of Borrower and
its
Subsidiaries on a consolidated basis for any period, after all taxes actually
paid or accrued and all expenses and other charges determined in accordance
with
generally accepted accounting principles consistently applied.
“Net
Worth”
means
Total Assets, less
Total
Liabilities, plus
all
accumulated amortization of Intangible Assets subsequent to the date of this
Agreement.
7
“Notes”
means,
collectively, (i) the Revolving Note and (iii) the Term Note.
“Payment
Date”
means
the first day of each month during the term of the Revolving Note for any
Revolving Advances which are accruing interest at the Prime Rate.
“PBGC”
means
the Pension Benefit Guaranty Corporation.
“Permitted
Indebtedness”
shall
be as defined in Section 5(f).
“Permitted
Liens”
means
(i) warehousemen’s, mechanics’, carriers’ and other similar Liens arising by
operation of law in the ordinary course of the Borrower’s business, (ii) Liens
in favor of the Lender, (iii) a second priority Lien upon the Collateral in
favor of the Junior Lender securing the Junior Loan, and (iv) purchase money
security interests in tangible personal property purchased or leased and useful
for Borrower’s business where the security interest covers only such property
and secures only the cost thereof and do not exceed $50,000.00 in the
aggregate.
“Person”
means
an individual, entity, corporation, partnership, limited partnership, limited
liability company, limited liability partnership, joint venture, trust, or
unincorporated organization, or a government or any agency or political
subdivision thereof.
“Prime
Rate”
means
the variable per annum rate of interest so designated from time to time by
Lender as its prime rate. The Prime Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer
of
Lender.
“Revolving
Advance”
shall
be as defined in Section 2(a)(i).
“Revolving
Loan”
shall
be the revolving line of credit facility established under Section 2(a) of
this
Agreement.
“Revolving
Note”
means
a
certain Revolving Line of Credit Note of even date herewith by Borrower to
the
order of Lender in the principal amount not to exceed the Maximum Revolving
Credit.
“Security
Agreements”
means,
collectively, (i) the Borrower Security Agreement and (ii) the Guarantors
Security Agreements.
“Seller
Financing”
means
the unsecured purchase money financing arrangements between Borrower and certain
sellers of the equity interests in certain of the Guarantors. The Seller
Financing existing on the date hereof is more fully set forth in Schedule
B
attached
hereto and made a part hereof. Upon the completion of any Acquisition and
provided that such Acquisition involves Seller Financing, the Lender may, at
its
option, amend Schedule
B
to
reflect such additional Seller Financing.
8
“Seller
Subordination Agreement”
means
a
Subordination Agreement in substantially the form attached hereto as
Exhibit
D.
“Stock
Pledge Agreement”
means
a
certain Stock Pledge Agreement of even date herewith from Borrower to Lender
securing all obligations of Borrower to Lender under the Documents and granting
to Lender a first priority security interest in all capital stock of the
Guarantors owned by Borrower.
“Subordination
Agreement”
means
a
certain Subordination Agreement of even date herewith executed by and between
Lender and Junior Lender pursuant to which Junior Lender has subordinated its
rights and interests under the Junior Loan Documents and the Junior Loan to
the
rights and interests of Lender under the Loan Documents and the Loans on such
terms and conditions satisfactory to Lender.
“Subsidiary”
or
“Subsidiaries”
means
any partnership, corporation, association, trust, limited liability company
or
partnership or other business entity of which any Borrower or Guarantor shall
at
any time own directly or indirectly through a Subsidiary or Subsidiaries at
least a majority of the outstanding Voting Interests.
“Term
Loan”
means
the term loan facility established under Section 2(b) of this
Agreement.
“Term
Loan Advance”
shall
be as defined in Section 2(b)(i).
“Term
Loan Amount”
means
$13,000,000.00.
“Term
Loan Maturity Date”
means
July 31, 2010.
“Term
Note”
means
a
certain Term Promissory Note of even date herewith by Borrower to the order
of
Lender in the maximum principal amount not to exceed the Term Loan
Amount.
“Total
Assets”
means
all assets of a Person which would, in accordance with GAAP, be classified
as
assets of a Person conducting a business the same as or similar to that of
such
Person.
“Total
Funded Debt”
means
the Loans, the Junior Loan, the Seller Financing and any other
Indebtedness.
“Total
Liabilities”
means
all items of Indebtedness, obligation or liability of a Person which would,
in
accordance with GAAP, be classified as liabilities of a Person conducting a
business the same as or similar to such Person.
9
“TTM”
means
the trailing twelve months.
“Unfinanced
Acquisition”
means
an Acquisition where (i) the aggregate purchase price for the acquisition of
the
equity interests of the Acquired Entity is less than $800,000.00 and (ii) the
Borrower has not requested a Term Loan Advance or Revolving Advance to finance
such Acquisition.
“Unfinanced
Acquisition Conditions” means the
following terms and conditions:
(i) |
no
Default Event or Event of Default shall exist under the Loan Documents;
|
(ii)
|
the
Lender shall have received a certificate of an officer of the Borrower
demonstrating on a pro forma basis compliance with the financial
covenants
set forth in Section 5 hereof after giving effect to the consummation
of
the Acquisition;
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(iii)
|
the
Acquired Entity shall have executed and deliver to Lender: (A) an
unconditional and joint and several guaranty of the Borrower’s obligations
under the Loan Documents in substantially the form of the guaranty
attached hereto as Exhibit
B;
(B) a security agreement (in substantially the form attached hereto
as
Exhibit
C)
granting to Lender a first-priority security interest in all assets
of the
Acquired Entity; and (C) an equity pledge of the ownership interests
of
any Subsidiaries of the Acquired Entity, if applicable and if required
by
Lender; and
|
(iv)
|
if
the Borrower shall enter into any Seller Financing in connection
with the
Acquisition, the holder or holders of such Seller Financing shall
execute
and deliver to Lender a Seller Subordination
Agreement.
|
“Unused
Commitment Fee”
means an
amount
equal to one-quarter (1/4) of the applicable Unused Commitment Fee amount set
forth in the table below times an amount equal to the difference between the
Term Loan Amount and the actual outstanding balance under the Term Loan for
the
preceding three (3) month period. The Unused Commitment Fee shall be assessed
and paid quarterly as set forth in Section 2(b)(vi)(3) below.
Level:
|
Ratio
of Total Funded Debt to EBITDA:
|
Unused
Commitment Fee:
|
||
I
|
when
less than 2.0 to 1.0
|
15
Basis Points
|
||
II
|
when
greater than or equal to 2.0 to 1.0, but less than 3.0 to
1.0
|
20
Basis Points
|
||
III
|
when
greater than or equal to 3.0 to 1.0
|
25
Basis Points
|
10
“Voting
Interests”
means
stock or similar interests, of any class or classes (however designated) the
holders of which are at the time entitled, as such holders, to vote for the
election of a majority of the directors (or persons performing similar
functions) of the partnership, corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
“Woodside”
means,
collectively, (i) Woodside Capital Partners IV, LLC, (ii) Woodside Capital
Partners IV QP, LLC, (iii) Xxxxxx Commercial Paper Inc., and (iv) Woodside
Agency Services, LLC.
(b) Use
of
Defined Terms.
Any
defined term used in the plural preceded by the definite article shall be taken
to encompass all members of the relevant class. Any defined term used in the
singular preceded by "any" shall be taken to indicate any number of the members
of the relevant class.
2. Terms
of Credit Facilities.
(a) Terms
for Revolving Line of Credit.
(i) Revolving
Line of Credit.
Subject
to the terms and conditions hereinafter set forth and so long as no Default
Event or Event of Default exists under this Agreement, Lender will make loans
to
the Borrower (each, a “Revolving Advance”) in such amounts as requested by the
Borrower, provided that no Revolving Advance shall be made under the Revolving
Note if such Revolving Advance, together with the Aggregate Revolving
Advances, would
exceed the Maximum Revolving Credit. The credit facility established under
this
Section 2(a)(i) is a revolving line of credit such that, subject to the
limitations of this Section and Borrower’s compliance with the terms and
conditions of this Agreement and prior to the Expiration Date, the Borrower
may
borrow, re-pay, and re-borrow Revolving Advances. Notwithstanding the definition
of “Maximum Revolving Credit” in Section 1.1, nothing contained in this
Agreement shall be construed to obligate Lender to make any Revolving Advance
after the Expiration Date or the earlier termination of this Agreement, but
Lender may choose to do so in its sole discretion, and all Revolving Advances
shall in any event be secured by the Collateral.
(ii) Evidence
of Indebtedness under and Security for Revolving Loan.
The
Borrower’s obligation to repay each Revolving Advance shall be evidenced by the
Revolving Note, and the principal amount of each Revolving Advance shall be
added to the principal balance due under the Revolving Note. All obligations
of
Borrower under this Agreement and the Revolving Note shall be secured by the
Borrower Security Agreement and the Stock Pledge Agreement and shall be
unconditionally and jointly and severally guarantied by the Guarantors pursuant
to the Guaranties. The Guarantors’ obligations under the Guaranties shall be
secured by the Guarantors Security Agreements.
(iii) Use
of
Revolving Advances.
The
Borrower shall use the Initial Revolving Advance, along with the proceeds of
the
Initial Term Loan Advance and the Junior Loan, to pay in full all amounts
outstanding under the Existing Term Loan.
11
(iv) Requests
for and Funding of Revolving Advances.
The
Borrower shall give Lender telephonic or written notice by no later than 2:00
p.m. on any Business Day on which it requests a Revolving Advance, specifying
the amount of, the date of funding for, and the interest rate election for
each
Revolving Advance requested. Provided that Borrower has satisfied any conditions
precedent for such Revolving Advance set forth in this Agreement, the Lender
shall make the Revolving Advance to the Borrower by crediting the Borrower’s
demand deposit account with the Lender or as otherwise directed in writing
by
the Borrower.
(v)
Interest
Rate Applicable to Revolving Advances.
Each
Revolving Advance shall accrue interest at a variable per annum rate of interest
equal to either, at Borrower’s election in accordance with the terms and
conditions of this Agreement, (i) the Prime Rate or (ii) the Adjusted LIBOR
Rate, plus
the
Libor Rate Margin for Revolving Loan (the “LIBOR Option”). Changes in the
interest rate applicable to any Revolving Advance occurring as a result of
changes in the Prime Rate or the LIBOR Rate, as applicable, shall take place
immediately without notice to Borrower or demand of any kind. Interest on each
Revolving Advance shall at all times be calculated on a 360-day year of twelve
30-day months, but shall accrue and be payable on the actual number of days
elapsed.
(vi) Payments.
(1)
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Monthly
Interest.
The Borrower shall make monthly payments of accrued interest in arrears
on
the outstanding principal balance of each Revolving Advance on (x)
each
Payment Date, for Revolving Advances accruing interest at the Prime
Rate
and (y) each Interest Payment Date, for Revolving Advances accruing
interest at the LIBOR Option. If interest is due and accrued for
a period
of more or less than one (1) month on any Payment Date or on any
Interest
Payment Date, as applicable, such payment shall be increased or decreased
to the extent that the amount of interest then due under such payment
exceeds or is less than one (1) month’s
interest.
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(2)
|
Compliance
with Maximum Revolving Credit.
The Borrower shall repay the Aggregate Revolving Advances in part
from
time to time in such principal amounts as may be necessary to ensure
that
the Aggregate Revolving Advances at no time exceeds the Maximum Revolving
Credit.
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(3)
|
Expiration
Date.
Upon the earlier to occur of (i) the Expiration Date and (ii) such
other
date as may be required by the terms of Section 6(b) of this Agreement,
the Borrower shall pay to Lender the entire then unpaid balance of
principal, interest, and other charges due under the Revolving
Note.
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12
(4)
|
Charge
to Borrower’s Account.
The Borrower hereby authorizes Lender to charge any account maintained
by
Borrower with Lender for any payment due from Borrower under the
Revolving
Note or any of the other Loan Documents. In any of the foregoing
cases,
such authorization, however, does not obligated Lender so to charge
nor
does it limit the Borrower’s obligation to make any payment when
due.
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(vii) Loan
Account.
The
Lender shall establish a loan account (the “Loan Account”) with respect to the
Revolving Note, shall enter as debits to the Loan Account all Revolving Advances
made, accrued interest, charges, fees, expenses and other items chargeable
to
the Borrower hereunder in connection with the Revolving Loan, and shall enter
as
credits to the Loan Account all payments made by the Borrower in cash or solvent
credits on account of the Revolving Advances and other appropriate debits and
credits. Once each month, the Lender shall render to the Borrower a written
statement of the indebtedness evidenced by the Loan Account, which statement
shall be deemed to be correct and conclusively binding upon the Borrower unless
the Borrower provides to the Lender written notice to the contrary within thirty
(30) days after the date of mailing of such statement.
(b) Terms
for Term Loan.
(i) Term
Loan.
Subject
to the terms and conditions of this Agreement (including any conditions
precedent set forth herein), Lender hereby agrees to lend to Borrower, and
Borrower hereby agree to borrow from Lender, a term loan in the amount of the
Term Loan Amount. During the Availability Period, the Term Loan shall be
advanced by Lender to Borrower as a non-revolving line of credit, and subject
to
the terms and conditions of this Agreement (including any conditions precedent
set forth herein), the Lender will make loans to the Borrower (each, a “Term
Loan Advance”), provided that no Term Loan Advance shall be made if such Term
Loan Advance, together with the Aggregate Term Loan Advances, would
exceed the Term Loan Amount. Provided that Borrower has satisfied the conditions
precedent set forth in Section 4(a) below, Lender agrees to fund an Initial
Term
Loan Advance in the amount of $8,000,000.00. Notwithstanding the definition
of
“Term Loan Amount” in Section 1(a), nothing contained in this Agreement shall be
construed to obligate Lender to make any Term Loan Advance after the
Availability Period or earlier termination of this Agreement under Section
6(b),
but Lender may choose to do so in its sole discretion.
(ii) Evidence
of Indebtedness under and Security for Term Loan.
The
Borrower’s obligation to repay each Term Loan Advance shall be evidenced by the
Term Note, and the principal amount of each Term Loan Advance shall be added
to
the principal balance due under the Term Note. All obligations of Borrower
under
this Agreement and the Term Note shall be secured by the Borrower Security
Agreement and the Stock Pledge Agreement and shall be unconditionally and
jointly and severally guarantied by the Guarantors pursuant to the Guaranties.
The Guarantors’ obligations under the Guaranties shall be secured by the
Guarantors Security Agreements.
13
(iii) Use
of
Term Loan Advances.
The
Borrower shall use the Initial Term Loan Advance, along with the proceeds of
the
Initial Revolving Advance and the Junior Loan, to pay in full all amounts
outstanding under the Existing Term Loan, and shall use any subsequent Term
Loan
Advance for Financed Acquisitions with the consent of Lender.
(iv) Requests
for and Funding of Term Loan Advances.
During
the Availability Period, the Borrower shall give Lender written notice of
Borrower’s request for a Term Loan Advance, specifying the amount of, the date
of funding for, and the interest rate election for each Term Loan Advance
requested. Provided that Borrower has satisfied any conditions precedent for
such Term Loan Advance set forth in this Agreement, the Lender shall make the
Term Loan Advance to the Borrower by crediting the Borrower’s demand deposit
account with the Lender or as otherwise directed in writing by the
Borrower.
(v)
Interest
Rate Applicable to Term Loan Advances.
Each
Term Loan Advance shall accrue interest at a variable per annum rate of interest
equal to either, at Borrower’s election in accordance with the terms and
conditions of this Agreement, (i) the Prime Rate or (ii) the Adjusted LIBOR
Rate, plus
the
LIBOR Rate Margin for the Term Loan (the “LIBOR Option”). Changes in the
interest rate applicable to any Term Loan Advance occurring as a result of
changes in the Prime Rate or the Adjusted LIBOR Rate, as applicable, shall
take
place immediately without notice to Borrower or demand of any kind. At any
time
prior to the Term Loan Maturity Date and provided that no Event of Default
has
occurred under the Loan Documents, the Borrower shall have the option, upon
written notice to Lender in each instance, to enter into one or more Hedging
Contracts (as defined in Rider
A)
with
respect to all or a portion of the then outstanding principal balance under
the
Term Note, which Hedging Contracts shall commence on the date of such Hedging
Contract and shall continue for a period not to exceed the Term Loan Maturity
Date. Any principal amount subject to a Hedging Contract shall accrue interest
at the LIBOR Option. Interest on each Term Loan Advance shall at all times
be
calculated on a 360-day year of twelve 30-day months, but shall accrue and
be
payable on the actual number of days elapsed.
(vi) Payments.
(1)
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Availability
Period.
During the Availability Period, the Borrower shall make monthly payments
of accrued interest in arrears on the outstanding principal balance
of
each Term Loan Advance on (x) each Payment Date, for Term Loan Advances
accruing interest at the Prime Rate and (y) each Interest Payment
Date,
for Term Loan Advances accruing interest at the LIBOR Option. If
interest
is due and accrued for a period of more or less than one (1) month
on any
Payment Date or on any Interest Payment Date, as applicable, such
payment
shall be increased or decreased to the extent that the amount of
interest
then due under such payment exceeds or is less than one (1) month’s
interest.
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14
(2)
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Amortization
Period.
During the Amortization Period, the Borrower shall make, on each
Interest
Payment Date, monthly payments of accrued interest on the outstanding
principal balance of the Term Note, along with monthly payments of
principal based upon a five (5) year straight-line amortization schedule
as set forth in Schedule
A
attached to the Term Note.
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(3)
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Term
Loan Maturity Date.
On the Term Loan Maturity Date or such earlier date as may be required
under the terms of the Loan Documents, the Borrower shall pay to
Lender
the entire then unpaid balance of principal, interest, and other
charges
due under the Term Note.
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(4)
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Charge
to Borrower’s Account.
The Borrower hereby authorizes Lender to charge any account maintained
by
Borrower with Lender for any payment due from Borrower under the
Term Note
or any of the other Loan Documents. In any of the foregoing cases,
such
authorization, however, does not obligated Lender so to charge nor
does it
limit the Borrower’s obligation to make any payment when
due.
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(vii)
Notations
Reflecting Term Loan Advances.
The
Borrower hereby irrevocably authorizes the Lender to make or cause to be made
on
the books of the Lender, at or following the time of making each Term Loan
Advance and of receiving any payment of principal under the Term Note, an
appropriate notation reflecting such transaction and the then aggregate unpaid
principal balance of the Term Loan. The amount so noted, and other regular
entries by the Lender on its books with respect to interest and other charges,
shall constitute presumptive evidence as to the amount owed by the Borrower
with
respect to principal of the Term Loan and with respect to interest and other
charges.
(c)
Unused
Commitment Fee.
In
addition to any other amounts payable under this Agreement, the Borrower shall
also pay to Lender the Unused Commitment Fee on the first business day of each
quarter commencing after the quarter ending on December 31, 2007 and continuing
after the end of each three (3) month period thereafter during the Availability
Period.
3. Representations
and Warranties.
The
Borrower represents and warrants to the Lender that:
(a) Organization.
The
Borrower is a duly organized, validly existing corporation in good standing
under the laws of the State of Florida and under each other jurisdiction in
which its business conducted or properties owned requires such qualification.
The Guarantors are duly organized, validly existing entities in good standing
under the laws of their respective states of organization and are duly qualified
to do business as foreign entities and in good standing under the laws of each
other jurisdiction in which their business conducted or properties owned
requires such qualification.
15
(b) Authority.
The
Borrower and the Guarantors each have full power to enter into and perform
their
respective obligations under the Loan Documents and have taken all necessary
corporate or other entity action to authorize the execution, delivery, and
performance of the Loan Documents.
(c) Enforceability.
The
Loan Documents constitute the legal, valid and binding obligations of the
Borrower and Guarantors, as applicable, enforceable in accordance with their
terms.
(d) No
Violation.
The
execution, delivery and performance of the Loan Documents will not violate
any
provision of (i) any existing law or regulation applicable to Borrower or
Guarantors, (ii) the Borrower’s and Guarantors’ respective organizational and
governing documents, (iii) any order or decree of any court, arbitrator or
governmental authority applicable to Borrower or any of the Guarantors, or
(iv)
any contractual undertaking to which the Borrower or any of the Guarantors
is a
party or by which any may be bound.
(e) Consents.
No
consents, licenses, approvals or authorizations of, exemptions by or
registrations or declarations with, any governmental authority are required
with
respect to the execution, delivery, and performance of the Loan Documents.
(f) Taxes.
The
Borrower and each of the Guarantors have filed all federal and state income
and
other material tax returns required to be filed by them and have paid all taxes
due under any assessment received by them, other than those being contested
in
good faith by appropriate proceedings where appropriate reserves have been
established and Borrower has notified Lender in writing of such contest.
(g) Litigation.
Except
as set forth on Schedule
3(g)
attached
hereto, there is no action, suit or proceeding pending against, or to the
Borrower’s knowledge, threatened against or affecting Borrower or any of the
Guarantors, before any court, arbitrator, or governmental authority in which
there is a reasonable possibility of an adverse decision which could adversely
affect the business or financial condition of the Borrower or any of the
Guarantors or the Borrower’s or Guarantors’ respective abilities to enter into
and perform their obligations under the Loan Documents.
(h) Books
and Records.
All
books and records of the Borrower and the Guarantors, including, but not limited
to, minute books, by-laws and books of account, fairly reflect all matters
and
transactions which should currently be reflected therein, in accordance with
GAAP.
16
(i) Financial
Statements and Condition.
The
Borrower’s and Guarantors’ respective balance sheets as of their last fiscal
year end and the related statements of operations for the fiscal period then
ended, copies of which have been provided to the Lender, fairly present the
financial condition and results of operations of the Borrower and Guarantors
as
of such date and for such period, and there has occurred no Material Adverse
Effect since such date. Any financial information provided to Lender which
project the future performance of the Borrower and the Guarantors constitute
a
reasonable basis for the assessment of the future performance of the Company
and
its Subsidiaries, on a consolidated basis, during the periods indicated therein,
and all material assumptions used in the preparation of the Projections are
set
forth in the notes thereto.
(j) Indebtedness;
Liens.
The
Borrower and the Guarantors have not incurred any Indebtedness, other than
the
Permitted Indebtedness, and the Borrower’s and Guarantors’ respective assets are
not subject to any Lien, other than the Permitted Liens.
(k) Subsidiaries.
The
Persons set forth on Schedule
A
attached
hereto represent all of the Subsidiaries of the Borrower and the Guarantors
as
of the date hereof, and neither Borrower nor any of the Guarantors owns any
legal and/or beneficial interests in any other Person. Borrower hereby
acknowledges that its subsidiary, Xxxxxx Capital Financial Group, Inc., has
no
assets or operations and will be soon dissolved by Borrower.
(l) Solvency.
Prior
to, upon, and immediately after consummation of the transactions contemplated
hereby, including the incurrence of the Indebtedness evidenced hereby and by
the
Junior Loan Documents, the Borrower and each of the Guarantors is solvent,
has
tangible and intangible assets having a fair value in excess of the amount
required to pay its probable liabilities on its existing debts as they become
absolute and matured, and has access to adequate capital for the conduct of
its
business and the ability to pay its debts from time to time incurred in
connection therewith as such debts mature.
(m) Title
to Assets; Leases.
The
Borrower and each of the Guarantors own all of the assets reflected in the
financial statements referenced in Section 3(i) above, subject to no Liens
other
than Permitted Liens and except for assets disposed of since the date of such
financial statements in the ordinary course of business and consistent with
past
practices of the Borrower and the Guarantors. Neither the Borrower nor any
of
the Guarantors owns any real property. The Guarantors and each of Guarantors
enjoys peaceful and undisturbed possession, and is in compliance, in all
material respects, with the terms, of all leases of real property on which
facilities operated by it are situated or which the Borrower or any of the
Guarantors keeps, maintain, or stores any Collateral (the "Real Property"),
each
of which is listed on Schedule
3(m)
attached
hereto.
(n) Material
Contracts.
Except
for the contracts, agreements and arrangements listed in Schedule
3(n)
attached
hereto and contracts, agreements or other arrangements that have been fully
performed and with respect to which neither the Borrower nor any of the
Guarantors has any further obligations or liabilities, neither the Borrowers
nor
any of the Guarantors is a party to or otherwise bound by (i)
any
agreement, instrument, or commitment that may affect its ability to consummate
the transactions contemplated hereby, or (ii) any other material agreement,
instrument, or commitment; including without limitation, any:
17
(i) agreement
for the purchase, sale, lease or license by or from it of (i) real estate
requiring total payments in excess of $100,000 in any instance or (ii) other
services, products, or assets, requiring total payments in excess of $100,000
in
any instance, other than agreements for the purchase of inventory in the
ordinary course of its business;
(ii) agreements
requiring it to purchase all or substantially all of its requirements for a
particular product or service from a particular supplier or suppliers, or
requiring it to supply all of a particular customer's or customers' requirements
for a certain service or product (including all management service
agreements);
(iii) agreement
or other commitment pursuant to which it has agreed to indemnify or hold
harmless any other person, to share tax liability of any other person, or to
refrain from competing with any other person;
(iv) (1)
employment agreement, (2) consulting agreement, or (3) agreement providing
for
severance payments or other additional rights or benefits (whether or not
optional) in the event of a sale or other change in control of it;
(v) agreement
with any current or former affiliated entity, stockholder, officer, director,
employee, or consultant of the Borrower or any of the Guarantors, or with any
person in which any such affiliated entity has an interest;
(vi) joint
venture, partnership or teaming agreement;
(vii) agreement
with any domestic or foreign government or agency or executive office thereof
or
any subcontract between it and any third party relating to a contract between
such third party and any domestic or foreign government or agency or executive
office thereof;
(viii) agreement
the performance of which is reasonably likely to result in a loss to it;
or
(ix) promissory
note, indenture, mortgage, loan agreement, guaranty, security agreement, pledge
or similar agreement with any lender.
The
Borrower has delivered to the Lenders correct and complete copies of each
agreement, instrument, and commitment listed in Schedule
3(n),
each as
amended to date. Each such agreement, instrument, and commitment is a valid,
binding and enforceable obligation of the Borrower or the Guarantors, as
applicable, and is in full force and effect. Except as set forth in Schedule
3(n),
neither
the Borrower nor any of the Guarantors is, nor to the Borrower's knowledge,
is
any other party thereto (nor is the Borrower or any of the Guarantors, to the
Borrower's knowledge, considered by any other party thereto to be) in breach
of
or noncompliance with any term of any such agreement, instrument, or commitment
(nor is there, to the Borrower's knowledge, any basis for any of the foregoing),
except for breaches or non-compliances that singly or in the aggregate would
not
have a Material Adverse Effect. No claim, change order, request for equitable
adjustment, or request for contract price or schedule adjustment, between the
Borrower or any of the Guarantors and any supplier, client or customer, relating
to any agreement, instrument, or commitment listed in Schedule
3(n)
is
pending or, to the Borrower's knowledge, threatened, other than those claims,
change orders or requests which could not result in a Material Adverse Effect.
No agreement, instrument, or commitment listed in Schedule
3(n)
includes
or incorporates any provision, the effect of which may be to enlarge or
accelerate any of the obligations of the Borrower or any of the Guarantors
or to
give additional rights to any other party thereto, or will terminate, lapse,
or
in any other way be affected, by reason of the transactions contemplated by
this
Agreement.
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(o) Intellectual
Property.
(i) The
Company or one of the Guarantors is the sole and exclusive owner of or has
the
right to use, free and clear of any material obligations to pay royalties or
any
other similar obligations, and free and clear of all Liens, all (if any)
franchises, patents, patent applications, patent licenses, patent rights, trade
secrets, trademarks, trademark rights, trade names, trade name rights, brand
names, copyrights, licenses, permits, authorizations and other rights as are
necessary for the conduct of its business as currently conducted or currently
proposed to be conducted. All of the foregoing are in full force and effect,
and
the Borrower and each of the Guarantors is in compliance with the foregoing
without any known conflict with the valid rights of others which could affect
or
impair in a material manner the business, assets or financial condition of
the
Borrower or any of the Guarantors. Except as otherwise described in Schedule 3(o),
there
are no material licenses, sublicenses, covenants or agreements which have been
entered into by the Borrower or any of the Guarantors with respect to any
patents, trade secrets, trademarks, trade names, brand names or copyrights.
None
of the Borrower or any of the Guarantors is in default in any material respect
under or in relation to any such license, sublicense, covenant or
agreement.
(ii) There
is
no claim by or demand of any Person pertaining to, and there is no pending
or,
to the best knowledge of the Borrower, threatened action, suit, proceeding
or
investigation relating to any rights of the Borrower or any of the Guarantors
in
respect of any patents, trade secrets, trademarks, trade names, brand names
or
copyrights used in the business or operations of the Borrower or any of the
Guarantors.
(iii) No
patent, trade secret, trademark, trade name, brand name or copyright owned
or
used by the Borrower or any of the Guarantors (i) is, to the Borrower's
knowledge, being infringed by any Person, or (ii) to the Borrower's knowledge,
infringes any patent, trade secret, trademark, copyright or other intellectual
property right of any Person.
(iv) Except
as
otherwise described in Schedule 3(o),
none of
the Borrower or any of the Guarantors is a party to or bound by any agreement
or
contract (whether written or, to its knowledge, oral) containing any covenant
prohibiting the Borrower or any of the Guarantors from competing in any business
of any kind in any territory or from competing with any Person, or prohibiting
the Borrower or any of the Guarantors from doing any kind of business with
any
Person.
19
(v) To
the
Borrower's knowledge: (i) None of the Borrower, any of the Guarantors, or any
of
their respective employees or consultants has infringed or made unlawful use
of,
or is infringing or making unlawful use of, any proprietary or confidential
information of any Person, including without limitation any former employer
of
any past or present employee or consultant of the Borrower or any of the
Guarantors; and (ii) the activities of the Borrower's and the Guarantors’
employees and consultants in connection with their employment or consulting
do
not violate any agreements or arrangements that any such employees or
consultants have with any former employer or any other Person.
(p) Brokers.
Except
as otherwise stated on Schedule
3(p),
no
finder, broker, agent or other intermediary has acted for or on behalf of the
Borrower or any or the Guarantors in connection with the negotiation or
consummation of the transactions contemplated hereby, and no fee will be payable
by the Borrower or any of the Guarantors to any such Person in connection with
such transactions.
(q) Disclosure.
No
representation, warranty or statement made in this Agreement or in any
agreement, certificate, statement or document furnished by or on behalf of
the
Borrower or any of the Guarantors in connection herewith or therewith contains
any untrue statement of material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein, in light
of the circumstances in which they were made, not misleading
(r) Defaults.
No
Default Event or Event of Default exists under any of the Loan Documents.
Neither the Borrower nor any of the Guarantors is in default under any
provisions of its respective organizational documents or by-laws or under any
material provisions of any contract, agreement, lease or other instrument to
which it is a party or by which it or its property is bound or in material
violation of any law, judgment, decree or governmental order, rule or regulation
applicable to the Borrower or any of the Guarantors.
The
Borrower acknowledges that Lender has entered into this Agreement in reliance
upon the foregoing representations and warranties of the Borrower and that
such
representations and warranties are hereby deemed to be material. Each such
representation and warranty shall be deemed to have been newly made on each
day
that Borrower requests a Revolving Advance or a Term Loan Advance and on each
day that Lender advances a Revolving Advance or a Term Loan
Advance.
4. Conditions
to Loans.
(a) Conditions
Precedent to Initial Advances.
The
Lender shall not be obligated to advance the Initial Revolving Advance or the
Initial Term Loan Advance until the Lender shall have received and approved:
20
(i) Organizational
Documents.
A true
and correct copy of each of the following documents:
(1)
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the
articles of organization of the Borrower, certified by the Florida
Secretary;
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(2)
|
the
by-laws of the Borrower;
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(3)
|
the
articles of organization of each of the Guarantors, certified by
the
secretary of state of the state of organization for such Guarantors;
and
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(4) |
the
by-laws of each of the Guarantors.
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(ii) Corporate
Good Standing.
Certificates from the Florida Secretary dated not more than thirty (30) days
from the date hereof certifying as to the Borrower’s legal existence and
corporate good standing in the State of Florida; certificates from the secretary
of state of the state of organization for each of the Guarantors dated not
more
than thirty (30) days from the date hereof certifying as to each of the
Guarantors’ legal existence and corporate good standing in its state of
organization; and certificates from the secretary of state of each state where
the Borrower and the Guarantors are qualified as foreign entities dated not
more
than thirty (30) days from the date hereof certifying as to the Borrower’s and
each of the Guarantors’ legal existence and foreign corporate good standing in
such states.
(iii) Tax
Good Standing.
Certificates from the department of revenue or like state taxing agency in
the
state of organization as to the Borrower’s and each of the Guarantors’ tax good
standing or, alternatively, certificates from the Borrower’s and each of the
Guarantors’ treasurers in form and substance satisfactory to Lender certifying
that Borrower and Guarantors, as applicable, have timely filed all tax returns
and have paid all federal and state taxes assessed against them;
(iv) Evidence
of Authority.
Certificates of authority from the Borrower’s and each of the Guarantors’
corporate secretaries, along with copies of a vote from boards of directors
or
shareholders, authorizing and approving the execution, delivery and performance
of the Loan Documents and each of the transactions contemplated hereunder;
(v) Loan
Documents.
The
duly executed Loan Documents in form and substance satisfactory to Lender;
(vi)
Legal
Opinion.
An
opinion of legal counsel to Borrower and Guarantors in form and substance
satisfactory to the Lender and Lender’s legal counsel, dated as of the date
hereof, regarding the legal existence of the Borrower and the Guarantors, the
authority of the Borrower and the Guarantors to execute and perform all Loan
Documents to which each is a party, the enforceability of the Loan Documents,
and the existence of any pending or threatened litigation against the Borrower
and the Guarantors;
21
(vii) Insurance.
Evidence of the insurance coverage required by Section 5(l) of this Agreement
and the Security Agreements;
(viii) Searches.
Searches of the appropriate Uniform Commercial Code filing offices showing
no
security interests affecting the Borrower or the Guarantors, other than those
in
favor of the Lender or approved by the Lender in writing, and searches
evidencing that neither the Borrower nor the Guarantors are affected by any
state or federal tax lien;
(ix) Lender’s
Fees.
Payment
by Borrower of a fee in the amount of $150,000.00 as consideration for Lender’s
commitment to advance the Loans and any other fees and expenses incurred by
Lender in connection with the Loans, including, but not limited to, the fees
and
expenses of legal counsel.
(x) Cash
Management.
If
applicable, evidence that Borrower has entered into a Cash Management Agreement
with Lender post-closing, and has established with Lender the Cash Management
Account;
(xi) Existing
Term Loan.
Current
payoff quotation for the Existing Term Loan;
(xii) Leases;
Landlord Consent and Waiver.
A copy
of the leases referenced in Section 3(m) above; and an executed landlord consent
and waiver of lien in form and substance satisfactory to Lender executed by
the
landlord under each such lease.
(xiii) Junior
Loan.
A draft
of the Junior Loan Documents in form and substance reasonably satisfactory
to
Lender prior to their execution and, upon their execution, a copy of the fully
executed Junior Loan Documents; and evidence that the Junior Loan has been
fully
advanced by the Junior Lender. The Lender and the Junior Lender shall also
have
executed the Subordination Agreement in form and substance satisfactory to
Lender.
(xiv) Seller
Financing.
A copy
of all documents and instrument evidencing the Seller Financing and an executed
Seller Subordination Agreement from each of the holders of the Seller
Financing.
(xv) Debt
to Equity Conversion.
Evidence of the conversion by Laurus Master Fund, Ltd. (“Laurus”) of at least
$1,000,000.00 of debt held by Laurus into equity interests in the Borrower
and
the investment of $2,000,000 in equity interests in the Borrower.
(xvi) Interest
Rate Elections.
Written
election by Borrower of the interest rate to apply to the Initial Revolving
Advance (as more particularly provided in Section 2(a)(v)) and the interest
rate
to apply to the Initial Term Loan Advance (as more particularly provided in
Section 2(b)(v)). The Borrower shall also have notified Lender in writing if
Borrower shall have elected to enter into a Hedging Contract with respect to
the
Initial Term Loan Advance.
22
(xvii) Additional
Information.
Such
additional information regarding the Borrower, the Guarantors, or any of the
transactions contemplated by this Agreement as may be reasonably requested
by
Lender.
(b) Conditions
Precedent to Subsequent Revolving Advances.
The
Lender’s obligation to make any Revolving Advance after the Initial Revolving
Advance is conditioned upon the following:
(i) Representations
and Warranties.
The
Borrower’s representations and warranties set forth in Section 3 shall be true
and correct in all material respects as of the date of each request for a
Revolving Advance and as of the date that Lender is requested to fund each
such
Revolving Advance;
(ii) Default.
There
shall exist no Default Event or Event of Default on both the date of each
request for a Revolving Advance and the date that Lender is requested to fund
each such Revolving Advance;
(iii) Material
Change.
There
shall have been no occurrence having a Material Adverse Effect upon the
financial condition, business, or prospects of the Borrower;
(iv) Secretary
Certificate.
If
requested by Lender, the Lender shall have received a certification signed
by
the corporate secretary of the Borrower as to the foregoing clauses (i) through
(iii) above;
(v) Interest
Rate Election.
The
Borrower shall have provided to Lender written election of the interest rate
to
apply to each Revolving Advance (as more particularly provided in Section
2(a)(v)); and
(vi)
Covenant
Compliance Certificate.
If
requested by Lender, an updated Covenant Compliance Certificate confirming
compliance with all financial covenants set forth in this Agreement after giving
effect to the requested advance.
The
Borrower’s acceptance of any Revolving Advance shall constitute the Borrower’s
representation and warranty to the effect set forth in clauses (i), (ii) and
(iii) above.
(c) Conditions
Precedent to Subsequent Term Loan Advances.
The
Lender’s obligation to make any Term Loan Advance after the Initial Term Loan
Advance is conditioned upon the following:
23
(i) Representations
and Warranties.
The
Borrower’s representations and warranties set forth in Section 3 shall be true
and correct in all material respects as of the date of each request for a Term
Loan Advance and as of the date that Lender is requested to fund each such
Term
Loan Advance;
(ii) Default.
There
shall exist no Default Event or Event of Default on both the date of each
request for a Term Loan Advance and the date that Lender is requested to fund
each such Term Loan Advance;
(iii) Material
Change.
There
shall have been no occurrence having a Material Adverse Effect upon the
financial condition, business, or prospects of the Borrower;
(iv) Secretary
Certificate.
If
requested by Lender, the Lender shall have received a certification signed
by
the corporate secretary of the Borrower as to the foregoing clauses (i) through
(iii) above;
(v) Availability
Period.
The
Availability Period shall not have expired;
(vi) Interest
Rate Election.
The
Borrower shall have provided to Lender written election of the interest rate
to
apply to each Term Loan Advance (as more particularly provided in Section
2(b)(v));
(vii) Financed
Acquisition Conditions.
The
Borrower shall have satisfied the Financed Acquisition Conditions for each
Term
Loan Advance; and
(viii)
Covenant
Compliance Certificate.
If
requested by Lender, an updated Covenant Compliance Certificate confirming
compliance with all financial covenants set forth in this Agreement after giving
effect to the requested advance.
The
Borrower’s acceptance of any Term Loan Advance hereunder shall constitute the
Borrower’s representation and warranty to the effect set forth in clauses (i),
(ii) and (iii) above.
5. Covenants
of Borrower.
The
Borrower covenants and agrees with the Lender as follows:
(a) Loan
Payments.
The
Borrower shall pay all amounts due under the Notes at the times and places
and
in the manner provided by this Agreement and the Notes and shall promptly pay
when due all other amounts owing to Lender with respect to fees and charges
and
otherwise as required by the Loan Documents.
(b) Loan
Proceeds.
The
Borrower shall use the proceeds of the Initial Revolving Advance for the payment
in full of all amounts outstanding under the Existing Term Loan. The Borrower
shall use the proceeds of the Initial Term Loan Advance for the payment in
full
of all amounts outstanding under the Existing Term Loan and shall use the
proceeds of any subsequent Term Loan Advance for the finance of Financed
Acquisitions.
24
(c)
Financial
Reporting.
The
Borrower shall furnish to Lender the following financial information
(collectively, the “Financial Information”):
(i)
|
within
one hundred twenty (120) days after the end of each fiscal year of
Borrower and its Subsidiaries, annual unqualified financial statements
for
the Borrower and it Subsidiaries on a consolidated basis audited
by a
certified public accountant acceptable to Lender in its reasonable
discretion;
|
(ii)
|
within
sixty (60) days after the end of each fiscal quarter of Borrower
and its
Subsidiaries, (i) management prepared quarterly financial statements
for
the Borrower and its Subsidiaries and (ii) a Covenant Compliance
Certificate executed by the chief financial officer of Borrower in
form
and substance reasonably satisfactory to Lender with respect to the
Borrower and its Subsidiaries; and
|
(iii)
|
such
additional financial information regarding the Borrower, the Guarantors,
or the Collateral as the Lender may reasonably request from time
to
time.
|
Neither
Lender, nor Lender’s officers, directors, employees, consultants or affiliates
shall trade on any material, non-public information of the
Borrower.
(d) Licenses,
etc.
The
Borrower shall preserve, and shall cause the Guarantors to preserve, their
corporate existences and all licenses and franchises necessary or convenient
for
their businesses; shall comply, and shall cause the Guarantors to comply, with
all applicable laws and regulations; shall maintain, and shall cause the
Guarantors to maintain, all material property necessary or useful in their
businesses in good working order and repair; and shall comply, and shall cause
the Guarantors to comply, with all funding and other material requirements
under
ERISA.
(e) Merger,
Consolidation, Purchase or Sale of Assets, Change in Control. Neither the
Borrower nor any of its Subsidiaries will (a) become a party to any merger
or
consolidation, (b) sell, lease, sublease or otherwise transfer or dispose
(including, without limitation, pursuant to any sale-leaseback transactions)
of
any portion of its assets, (c) acquire all or substantially all of the assets
of
any Person or any portion of the capital stock (or other equity interests)
of
any Person or (d) acquire any assets outside the ordinary course of business;
provided that
notwithstanding the forgoing, (i) any Subsidiary of Borrower may merge or
consolidate with Borrower or any other Subsidiary of Borrower so long as, in
the
case of any merger or consolidation with Borrower, Borrower is the surviving
entity, (ii) Borrower and its Subsidiaries may sell inventory and dispose of
obsolete or worn-out machinery and equipment, in each case, in the ordinary
course of business, consistent with past practices,
(iii)
Borrower and any of its Subsidiaries may become a party to any merger or
consolidation or sell or otherwise transfer or dispose of any portion of their
assets so long as, in each case, contemporaneously with the closing of any
such
transaction, the loan obligations of Borrower to Lender are indefeasibly paid
in
full and this Agreement shall have been terminated, and (iv) Borrower
may make Financed Acquisitions and Unfinanced Acquisitions pursuant to the
terms
of this Agreement. There
shall be no Change of Control affecting Borrower without the prior written
consent of Lender.
25
(f) Indebtedness.
The
Borrower shall not incur or become liable for any Indebtedness except (i)
Indebtedness to the Lender, (ii) Indebtedness under the Junior Loan Documents,
(iii) Indebtedness under the Seller Financing, (iv) the existing Indebtedness
set forth on Schedule
5(f)
attached
hereto, (v) Indebtedness consented to in writing by the Lender in advance of
the
incurrence of such Indebtedness, and (vi) Indebtedness secured by Permitted
Liens (collectively, “Permitted Indebtedness”). The Borrower shall not
materially amend the Junior Loan Documents or any documents or instruments
evidencing the Seller Financing without the prior written consent of
Lender.
(g) Liens.
The
Borrower shall not, and shall cause the Guarantors not to, create, permit to
be
created, or suffer to exist any Lien upon any of the Collateral, except the
Permitted Liens.
(h) Loans.
The
Borrower shall not make, and shall cause the Guarantors not to make, any loans
or advances to any Person, except (i) endorsement of negotiable instruments
for
deposit or collection in the ordinary course of business, and (ii) customary
advances for reimbursable employee business expenses in the ordinary course
of
business.
(i) Investments;
Acquisitions.
The
Borrower shall not make, and shall cause the Guarantors not to make, any
investments in securities or obligations of another Person, except (i) deposits
with the Lender or other financial institution insured by the Federal Deposit
Insurance Corporation, (ii) investments in U.S. Treasury securities, (iii)
investments in money market mutual funds of nationally-recognized sponsors;
provided, however, that no such investment shall be made if, after giving effect
to such investment, a Default Event or Event of Default shall occur hereunder;
and (iv) Acquisitions; provided that (1) Borrower has satisfied the terms and
conditions of Section 4(c) for Financed Acquisitions and (2) Borrower has
satisfied the Unfinanced Acquisitions Conditions for Unfinanced
Acquisitions.
(j) Restricted
Payments.
The
Borrower shall not make or pay, and shall not permit the Guarantors to make
or
pay: (i) any Distributions, except any non-cash dividends declared in connection
with the Borrower’s series of preferred stock; or (ii) any payment on account of
the purchase, redemption, retirement, or acquisition of (a) any shares of its
capital stock (except shares acquired upon the conversion thereof into other
shares of its capital stock) or (b) any option, warrant, or other right to
acquire shares of its capital stock; provided however that Borrower and
Guarantors may declare (but not make or pay) such Distributions if such
declaration shall not cause an Event of Default under this Agreement and does
not cause the Borrower and Guarantors to fail to comply with any covenants
required to be maintained by the Borrower and Guarantors pursuant to this
Agreement.
26
(k) Taxes.
The
Borrower shall pay and discharge, and shall cause the Guarantors to pay and
discharge, all taxes, assessments, and governmental charges or levies imposed
upon them, upon their income or profits, or upon any properties belonging to
them, prior to the date on which penalties or interest would attach thereto,
and
all lawful claims which, if unpaid, might become a Lien upon any property of
the
Borrower or the Guarantors; provided
that
Borrower and Guarantors shall not be required to pay any such tax, assessment,
charge, levy or claim which is being contested in good faith and by proper
proceedings which serve as a matter of law to stay the enforcement of any remedy
of the taxing authority or claimant and as to which the Borrower or Guarantors,
as applicable, shall have set aside on their books adequate reserves and
notified Lender in writing of such contest.
(l) Insurance.
The
Borrower shall keep, and shall cause the Guarantors to keep, all inventory,
equipment, furnishings, and other tangible personal property owned by the
Borrower and the Guarantors and kept or used for Borrower’s and Guarantors
businesses fully insured against fire, lightning and extended coverage perils
and against such other risks as the Lender may from time to time require, in
an
amount equal to the aggregate full insurable value thereof. The Borrower shall
also comply, and shall cause the Guarantors to comply, with the requirements
of
the Security Agreements with respect to insurance. The Borrower shall maintain,
and shall cause the Guarantors to maintain, such insurance with responsible
and
reputable insurance companies or associations satisfactory to Lender in such
amounts and covering such risks as shall be satisfactory to Lender from time
to
time, but in any event in amounts sufficient to prevent the Borrower and the
Guarantors from becoming a co-insurer.
(m) Minimum
EBITDA.
The
Borrower and Guarantors shall not permit their EBITDA to be less than the
following amounts for the periods there indicated, such covenant to be tested
quarterly by Lender on a TTM basis based upon the Financial
Information:
Fiscal
Quarter:
|
Amount:
|
|||
Q.4
2007
|
$
|
6,200,000.00
|
||
Q.1
2008
|
$
|
6,575,000.00
|
||
Q.2
2008
|
$
|
7,250,000.00
|
||
Q.3
2008
|
$
|
7,625.000.00
|
||
Q.4
2008
|
$
|
8,000,000.00
|
||
Q.1
2009
|
$
|
8,300,000.00
|
||
Q.2
2009
|
$
|
8,600,000.00
|
||
Q.3
2009
|
$
|
8,900,000.00
|
||
Q.4
2009
|
$
|
9,200,000.00
|
||
Q.1
2010
|
$
|
9,500,000.00
|
||
Q.2
2010
|
$
|
9,800,000.00
|
||
Q.3
2010
|
$
|
10,000,000.00
|
27
(n) Maximum
Ratio of Total Funded Debt to Adjusted EBITDA.
The
Borrower and Guarantors shall not permit the ratio of their Total Funded Debt
to
its Adjusted EBITDA to exceed the following ratios for the periods there
indicated, such covenant to be tested quarterly by Lender on a TTM basis based
upon the Financial Information:
Fiscal
Quarter:
|
Ratio:
|
|||
Q.4
2007
|
3.30
to 1.0
|
|||
Q.1
2008
|
3.30
to 1.0
|
|||
Q.2
2008
|
3.30
to 1.0
|
|||
Q.3
2008
|
3.0
to 1.0
|
|||
Q.4
2008
|
3.0
to 1.0
|
|||
Q.1
2009
|
2.75
to 1.0
|
|||
Q.2
2009
|
2.75
to 1.0
|
|||
Q.3
2009
|
2.75
to 1.0
|
|||
Q.4
2009
|
2.75
to 1.0
|
|||
Q.1
2010
|
2.50
to 1.0
|
|||
Q.2
2010
|
2.50
to 1.0
|
|||
Q.3
2010
|
2.50
to 1.0
|
(o) Minimum
Fixed Charge Coverage Ratio.
The
Borrower and Guarantors shall not permit their Fixed Charge Coverage Ratio
to be
less than 1.25 to 1.0 at any time, such covenant to be tested quarterly by
Lender on a TTM basis based upon the Financial Information.
(p) Minimum
Interest Coverage Ratio.
The
Borrower and Guarantors shall not permit their Interest Coverage Ratio to be
less than the following ratios for the periods there indicated, such covenant
to
be tested quarterly by Lender on a TTM basis based upon the Financial
Information:
Fiscal
Quarter:
|
Ratio:
|
|||
Q.4
2007
|
2.0
to 1.0
|
|||
Q.1
2008
|
2.0
to 1.0
|
|||
Q.2
2008
|
2.0
to 1.0
|
|||
Q.3
2008
|
2.0
to 1.0
|
|||
Q.4
2008
|
2.0
to 1.0
|
|||
Q.1
2009
|
2.25
to 1.0
|
|||
Q.2
2009
|
2.25
to 1.0
|
|||
Q.3
2009
|
2.25
to 1.0
|
|||
Q.4
2009
|
2.50
to 1.0
|
|||
Q.1
2010
|
2.50
to 1.0
|
|||
Q.2
2010
|
2.50
to 1.0
|
|||
Q.3
2010
|
2.50
to 1.0
|
28
(q) Maximum
Ratio of Total Funded Debt to Net Worth.
The
Borrower and Guarantors shall not permit the ratio of their Total Funded Debt
to
its Net Worth to exceed 2.50 to 1.0 at any time, such covenant to be tested
quarterly by Lender on a TTM basis based upon the Financial
Information.
(r)
Minimum
Availability under Revolving Loan:
Borrower shall be required to maintain a minimum availability under the
Revolving Loan at all times sufficient to fund three (3) months of debt service
payments on indebtedness under Seller Financing on a pro forma basis.
(s) Junior
Loan Documents.
The
Borrower shall not materially amend the Junior Loan Documents without the prior
written consent of Lender.
(t) Seller
Financing.
The
Borrower shall not materially amend any documents or instrument evidencing,
securing, and/or guarantying the Seller Financing without the prior written
consent of Lender.
(u) Cash
Management.
The
Borrower shall comply with the terms and conditions of the Cash Management
Agreement and shall maintain with Lender the Cash Management
Account.
(v) Costs
and Expenses.
The
Borrower shall pay on demand all costs and expenses of Lender (including without
limitation, legal fees and expenses) in connection with (i) the preparation,
execution, and delivery of the Loan Documents and any amendments or
modifications of any of the Loan Documents, (ii) the examination, review, or
administration of any of the Loan Documents, and (iii) the interpretation,
administration, preservation, enforcement, or exercise of any rights or remedies
under the Loan Documents, all whether or not legal action is instituted.
(w) Indemnification.
The
Borrower shall indemnify the Lender, its officers, directors, employees, agent,
and affiliates (collectively, the “Indemnified Parties”) and hold the
Indemnified Parties harmless against any claim or cause of action arising out
of
or in connection with the Loan, unless such claim or cause of action was caused
by the gross negligence, bad faith, or willful misconduct of any of the
Indemnified Parties.
(x) Event
of Default.
The
Borrower shall immediately notify the Lender of the occurrence of any Default
Event or Event of Default.
(y) Other
Information.
The
Borrower shall provide the Lender with such other information regarding the
transactions evidenced by the Loan Documents or the parties thereto, as the
Lender may from time to time reasonably request.
29
6. Events
of Default; Remedies.
(a) Events
of Default.
The
occurrence of any of the following events set forth in this Section 6(a) shall
constitute an “Event of Default” under this Agreement:
(i) The
Borrower shall fail to make any payment under the Notes or any other payment
obligation under the Loan Documents within ten (10) days of when due;
or
(ii) Any
material representation or warranty of the Borrower or any of the Guarantors
contained herein or in any of the other Loan Documents shall at any time prove
to have been incorrect in any material respect when made, or any representation
or warranty made by the Borrower or any of the Guarantors in connection with
the
execution and delivery of this Agreement or any other instrument, document,
certificate or statement executed and delivered in connection with the Loans
shall at any time prove to have been incorrect in any material respect when
made; or
(iii) The
Borrower shall default in the performance of any other term, covenant, or
agreement contained in this Agreement (other than as provided for in Sections
6(a)(i) and (ii) above) or of any term, covenant or agreement contained in
the
other Loan Documents, and such default shall continue uncured for twenty (20)
days after written notice thereof shall have been given by Lender to Borrower
(unless a different grace or cure period is specifically provided for herein
or
in any other Loan Document and provided that there shall be no grace or cure
period for Borrower’s failure to comply with the financial covenants set forth
in Sections 5(m), 5(n), 5 (o), 5(p) and 5 (q) above); or
(iv) Any
default shall exist and remain unwaived or uncured after any applicable grace
or
cure period (i) under the Junior Loan, (ii) under the Seller Financing, or
(iii)
with respect to any other Indebtedness of the Borrower or any of the Guarantors
owed to any other creditor in excess of $100,000.00, or any of the foregoing
Indebtedness shall not have been paid when due, whether by acceleration or
otherwise, or shall have been declared to be due and payable prior to its stated
maturity, or any event or circumstance shall occur which permits, or with the
lapse of time or giving of notice or both would permit, the acceleration of
the
maturity of any such Indebtedness by the holder or holders thereof;
or
(v) The
Borrower or any of the Guarantors shall be dissolved, shall become insolvent
or
bankrupt, shall cease paying its debts as they mature, or shall make an
assignment for the benefit of creditors; or a trustee, receiver or liquidator
shall be appointed for the Borrower or any of the Guarantors or for a
substantial part of any of their property; or bankruptcy, reorganization,
arrangement, insolvency or similar proceedings shall be instituted by or against
the Borrower or any of the Guarantors under the laws of any jurisdiction
(provided
that, if
involuntary, such proceedings shall not be an Event of Default if they are
dismissed within forty-five (45) days); or
30
(vi) Any
writ,
attachment, execution or similar process shall be issued or levied against the
Borrower or any of the Guarantors or any of their property, and such writ,
attachment, execution or similar process shall not be paid, released, vacated
or
fully bonded within twenty (20) days after its issue or levy; or any writ of
attachment or trustee process shall be served upon the Lender relating to goods,
effects or credits of the Borrower or any of the Guarantors in the possession
of
or maintained with the Lender; or
(vii) The
Borrower or any of the Guarantors shall fail to meet its minimum funding
requirements under ERISA with respect to any employee benefit plan (or other
class of benefit which the PBGC has elected to insure), or any such plan shall
be the subject of termination proceedings (whether voluntary or involuntary),
and there shall result from such termination proceedings a liability of the
Borrower or any of the Guarantors to the PBGC, which in the reasonable opinion
of the Lender may have a material adverse effect upon the business, operations
or financial condition of the Borrower or any of the Guarantors; or
(viii) The
occurrence of a Material Adverse Effect;
(ix) There
shall be entered against the Borrower or any of the Guarantors any final
judgment not covered by insurance which, singly or with any other final judgment
or judgments not covered by insurance then remaining unpaid, exceeds $250,000.00
and which would have, in the reasonable judgment of Lender, a Material Adverse
Effect; or
(x) There
shall be entered against the Borrower or any of the Guarantors any judicial
or
administrative order which enjoins, restrains or in any way prevents it from
conducting all or any part of its business activities or materially interferes
with the ownership, use or occupation of any if its assets, which order is
not
rescinded or dismissed within ten (10) days of its issuance; or
(xi) An
event
of default shall occur under any Hedging Contracts or under any other
Indebtedness owed by Borrower or any Guarantor to Lender or Lender’s
affiliates.
For
purposes of clauses (viii) and (ix) above, a loss or liability shall not be
deemed to be "not covered by insurance," notwithstanding that the insurer has
not paid the claim, if a claim has been submitted in writing and the Borrower
or
any of the Guarantors, as applicable, reasonably believe that it is covered
by
the relevant insurance, provided
that any
claim not paid or agreed to be covered by the insurer within sixty (60) days
after it is submitted shall be deemed to be not covered by
insurance.
(b) Rights
and Remedies on Default.
Upon
the occurrence of any Event of Default and at any time thereafter, in addition
to any other rights and remedies available to the Lender under this Agreement,
any of the other Loan Documents, or otherwise, the Lender may exercise any
one
or more of the following rights and remedies (all of which shall be
cumulative):
31
(i) Declare
the entire unpaid principal amount of the Notes then outstanding, all interest
accrued and unpaid thereon, all other amounts payable under this Agreement,
and
all other Indebtedness of the Borrower or any of the Guarantors to the Lender
to
be forthwith due and payable, whereupon the same shall become forthwith due
and
payable, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived by the Borrower and the
Guarantors.
(ii) Terminate
both the Revolving Loan provided for in Section 2(a) without notice.
(iii) Enforce
the provisions of this Agreement or the other Loan Documents by legal
proceedings for the specific performance of any covenant or agreement contained
herein or therein or for the enforcement of any other appropriate legal or
equitable remedy, and the Lender may recover damages caused by any breach by
the
Borrower or any of the Guarantors of the provisions of this Agreement or the
other Loan Documents, including court costs, reasonable attorneys' fees, and
other costs and expenses incurred in the enforcement of the obligations of
the
Borrower under this Agreement.
(iv) Exercise
all rights and remedies under this Agreement and the other Loan Documents and
any other agreement with the Lender and exercise all other rights and remedies
which the Lender may have under applicable law.
(c) Set-off.
In
addition to any rights now or hereafter granted under applicable law and not
by
way of limitation of any such rights, the Lender is hereby authorized at any
time or from time to time, without presentment, demand, protest or other notice
of any kind to the Borrower or any of the Guarantors, all of which are hereby
expressly waived, to set off and to appropriate and apply any and all deposits
(general or special) and any other Indebtedness at any time held or owing by
the
Lender to or for the credit or the account of the Borrower or any of the
Guarantors against and on account of the obligations and liabilities of the
Borrower and the Guarantors to the Lender under the Loan Documents or otherwise,
irrespective of whether or not the Lender shall have made any demand under
this
Agreement and although said obligations, liabilities or claims, or any of them,
may then be contingent or unmatured and without regard for the availability
or
adequacy of other collateral. The Borrower hereby grants to the Lender a
security interest with respect to all its deposits and all securities or other
property in the possession of the Lender from time to time, and, upon the
occurrence of any Event of Default or Default Event, the Lender may exercise
all
rights and remedies of a secured party under the Uniform Commercial Code with
respect thereto.
7. Miscellaneous
Provisions.
(a) Entire
Agreement.
This
Agreement and the other Loan Documents constitute the entire agreement of the
parties with respect to the subject matter hereof and supersede any prior
correspondence or agreements relating thereto.
32
(b) Section
Headings.
The
headings herein are for convenience of reference only and shall not affect
the
interpretation hereof.
(c) Amendment
and Waiver.
No
provision of this Agreement or the other Loan Documents may be amended or waived
except by a written instrument signed by the party or parties to be charged.
No
failure or delay by the Lender in exercising any right, power or privilege
under
this Agreement or under the other Loan Documents shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other
right, power or privilege.
(d) Assignment.
This
Agreement and the other Loan Documents shall inure to the benefit of and be
binding upon the parties’ respective successors and assigns, provided
that the
Borrower may not assign any rights or obligations under this Agreement or the
other Loan Documents without the prior written consent of the Lender. The Lender
may assign this Agreement and the other Loan Documents and may grant to other
financial institutions participations in loans made or to be made under this
Agreement.
(e) Cumulative
Remedies.
The
rights and remedies provided in the Loan Documents shall be cumulative and
not
exclusive of any rights or remedies provided by law.
(f) Severability.
If any
provision in the Loan Documents is prohibited or unenforceable in any
jurisdiction, such provision shall not affect the remaining provisions of the
Loan Documents or affect the validity or enforceability of such provision in
any
other jurisdiction.
(g) Term
of Agreement.
This
Agreement shall remain in effect as long as there remains outstanding any amount
under any of the Notes.
(h) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
Commonwealth of Massachusetts and shall take effect as a sealed instrument.
(i) Jurisdiction.
The
Borrower and the Guarantors irrevocably submit to the jurisdiction of any
Massachusetts court or any federal court sitting within the Commonwealth of
Massachusetts over any suit, action or proceeding arising out of or relating
to
this Agreement. The Borrower and the Guarantors irrevocably waive, to the
fullest extent permitted by law, any objection which they may now or hereafter
have to the laying of venue of any such suit, action or proceeding brought
in
such a court and any claim that any such suit, action or proceeding has been
brought in an inconvenient forum.
33
(j) Waiver
Of Jury Trial.
The
Lender, the Borrower, and the guarantors agree that none of them nor any
assignee or successor shall (a) seek a jury trial in any lawsuit, proceeding,
counterclaim or any other action based upon, or arising out of, this agreement,
any related instruments, any collateral or the dealings or the relationship
between them, or (b) seek to consolidate any such action with any other action
in which a jury trial cannot be or has not been waived. The provisions of this
paragraph have been fully discussed by the Lender the borrower, and the
guarantors, and these provisions shall be subject to no exceptions. None of
the
Lender, the borrower, or the guarantors have agreed with or represented to
any
other that the provisions of this paragraph will not be fully enforced in all
instances.
(k) Notices.
Any
notice, request, demand or other communication required or permitted under
this
Agreement shall be given in writing by delivering the same in person to the
intended addressee, by overnight courier service with guaranteed next day
delivery or by certified United States Mail, postage prepaid or telegram sent
to
the intended addressee at the applicable address set forth on Page 1 hereof
or
to such different address as either Borrower or Lender shall have designated
by
written notice to the other sent in accordance herewith. Such notices shall
be
deemed given when received or, if earlier, in the case of delivery by courier
service with guaranteed next day delivery, the next day or the day designated
for delivery, or in the case of delivery by certified United States Mail, two
days after deposit therein.
[Signatures
appear on the following page 33.]
34
EXECUTED
under seal as of the date first above written.
LENDER:
|
||
RBS
CITIZENS, NATIONAL ASSOCIATION
|
||
|
By:/s/Xxxxx
Xxxxxx
|
|
Witness
|
Name:
Xxxxx Xxxxxx
|
|
Title:
Senior Vice President
|
||
BORROWER:
|
||
|
By:/s/Xxxxxx
Xxxx
|
|
Witness
|
Name:
Xxxxxx Xxxx
|
|
Title:
CEO
|
35
EXHIBIT
A
FORM
OF
COMPLIANCE
CERTIFICATE
National
Investment Managers, Inc
Compliance
Certificate dated __________
I,
_________________, solely in my capacity as _________________ of National
Investment Managers, Inc
(“Borrower”),
certify that as of ________________, the Borrower is in compliance with Section
5 of the Revolving Line of Credit and Term Loan Agreement dated as of November
30, 2007 (as amended and in effect from time to time, the “Loan
Agreement”),
between the Borrower and RBS Citizens, National Association.
Computations
to evidence the Borrowers’ compliance with section 5 of the Loan Agreement are
detailed in the attachment.
National
Investment Managers, Inc.
|
||||
By:
|
||||
Name:
|
||||
Title:
|
36
FORM
OF COVENANT COMPLIANCE CERTIFICATE ATTACHMENT
National
Investment Managers, Inc
Covenant
Compliance Calculations for period ending ___________
Amount
($'000) |
||||
(I) Minimum EBITDA | ||||
Net
Income
|
$
|
-
|
||
+
Consoliated Interest Charges for such period
|
|
|||
+
Provision for Taxes
|
|
|||
+
Depreciation & Amortization
|
|
|||
+
Non-cash stock based compensation
|
|
|||
+
Non-cash extraordinary & unusual or non-recurring writedowns or
writeoffs
|
|
|||
-
extraordinary, unusual, non-recurring or non-operating
gains
|
|
|||
|
|
|||
EBITDA
|
$
|
-
|
||
Covenant
|
$
|
(II)
Maximum Ratio of Total Funded Debt to Adjusted EBITDA
Bank
Loans
|
$
|
-
|
||
Junior
Loan
|
|
|||
Seller
Financing
|
|
|||
Other
Indebtedness
|
|
|||
Total
Funded Debt (A)
|
$
|
-
|
||
|
|
|||
EBITDA
|
|
|||
+
Acquired EBITDA
|
|
|||
+
Addback of one-time expenses (allowed per Section 1 of loan
agreement)
|
|
|||
Adjusted
EBITDA (B)
|
$
|
-
|
||
|
|
|||
A
divided by B
|
#DIV/0!
|
|||
Covenant
|
|
(III)
Minimum Fixed Charge Coverage Ratio
Adjusted
EBITDA
|
|
|||
-
Cash Taxes
|
|
|||
-
Capital Expenditures
|
|
|||
Operating
Cash Flow (A)
|
$
|
-
|
||
|
|
|||
Current
Portion of Long Term Indebtedness
|
|
|||
+
Interest Payments on Indebtedness #
|
|
|||
Debt
Service (B)
|
$
|
-
|
||
|
|
|||
A
divided by B
|
#DIV/0!
|
|||
Covenant
|
1.25:1
|
#
Interest
payments will be annualized for the first 3 quarters that the ratio is
tested
37
(IV)
Minimum Interest Coverage Ratio
Adjusted
EBITDA less Acquired EBITDA (A)
|
$
|
-
|
||
Interest
Payments on Indebtedness #
|
$
|
-
|
||
A
divided by B
|
#DIV/0!
|
|||
Covenant
|
|
#
Interest
payments will be annualized for the first 3 quarters that the ratio is
tested
(V)
Maximum Ratio of Total Funded Debt to Net Worth
Total
Funded Debt - as defined above (A)
|
$
|
-
|
||
|
|
|||
Total
Assets
|
|
|||
-
Total Liabilities
|
|
|||
+
Accumulated amortization of Intangible Assets subsequent the loan
agreement date
|
|
|||
Net
Worth (B)
|
$
|
-
|
||
|
|
|||
A
divided by B
|
#DIV/0!
|
|||
Covenant
|
2.5:1
|
38
EXHIBIT
B
FORM
OF GUARANTY OF ACQUIRED ENTITY
GUARANTY
1.
|
Identification.
This Guaranty (the “Guaranty”)
is made as of the ___ day of ________, 200_ by __________________,
a
________ corporation with its principal place of business at
______________________________________________ (the “Guarantor”)
in favor of RBS Citizens, National Association, having
a lending office at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 (the “Lender”).
|
2. |
Background
and Reasons for Guaranty.
|
2.1
|
Loan.
On
the date hereof, National Investment Managers Inc., a Florida corporation,
having an address of 000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX
00000
(the “Borrower”)
executed and delivered (a) a certain Term Promissory Note dated as
of
November 30, 2007 from the Borrower to the Lender in the maximum
principal
amount of up to $13,000,000.00 and (b) a certain Revolving Line of
Credit
Note dated as of November 30, 2007 from the Borrower to the Lender
in the
maximum principal amount of $2,000,000.00 (together, the “Notes”).
The obligations of the Borrower are further evidenced by a certain
Revolving Line of Credit and Term Loan Agreement dated as of November
30,
2007 by and between the Borrower and Lender (the “Loan
Agreement”).
The Notes are secured by, among other things, a certain Security
Agreement
dated as of November 30, 2007 from the Borrower to Lender (the
“Security
Agreement”).
In addition, the obligations of Guarantor under this Guaranty shall
be
secured by a certain Security Agreement of even date herewith from
Guarantor to Lender (the “Guarantor
Security Agreement”)
granting to Lender a first priority security interest in all assets
of
Guarantor. The Notes, the Loan Agreement, the Security Agreement,
this
Guaranty, the Guarantor Security Agreement, the Guaranties of the
other
Guarantors and all other documents executed in connection with or
related
to such documents are sometimes collectively referred to herein as
the
“Loan
Documents”.
The obligations evidenced by the Loan Documents are sometimes collectively
referred to herein as the “Loans”.
All capitalized terms used herein and not otherwise defined herein
shall
have the meanings as set forth in the Loan
Agreement.
|
2.2
|
Requirement
of Guaranty.
As a condition precedent to the making of the Loan to Borrower, Lender
has
required that Guarantor execute and deliver this Guaranty to
Lender.
|
39
2.3
|
Consideration
to Guarantor.
Guarantor desires to execute and deliver the Guaranty to Lender because
the Borrower has a substantial interest in Guarantor and Guarantor
will
receive a direct financial benefit from the credit extended to
Borrower.
|
3.
|
Guaranty.
Guarantor, in consideration of Lender entering into the Loan Documents
and
other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, and for the purpose of inducing Lender
to
enter into the Loan Documents, hereby irrevocably and unconditionally
guarantees to Lender (a) the full, punctual and prompt payment of
all sums
payable under the terms of the Notes and the other Loan Documents,
whether
at maturity or by acceleration or otherwise, in immediately available
coin
and currency of the United States which is legal tender for the payment
of
all public and private debts; (b) the performance of all of Borrower’s
other obligations under the Notes and the other Loan Documents; and
(c)
all other obligations of every kind and description now existing
or
hereafter arising, direct or indirect, absolute or contingent, secured
or
unsecured, matured or unmatured, primary
or secondary, of Borrower to Lender including, without limitation,
any
Hedging Obligations (as defined in Rider
A
to
the Notes). The obligations referenced in subsections (a), (b) and
(c)
above are collectively referred to herein as the “Guaranteed
Obligations”.
|
4.
|
Warranties
and Representations.
Guarantor hereby warrants and represents to Lender
that:
|
4.1
|
The
Board of Directors of the Guarantor have determined the execution,
delivery and performance of this Guaranty to be necessary or convenient
to
the conduct, promotion or attainment of the business of the Borrower
and
the Guarantor, and to be in the best interests of the Guarantor and
in
pursuance of its corporate purposes as an integral part of the business
now conducted and proposed to be conducted by the Guarantor. The
Guarantor
expects to receive substantial direct and indirect benefits from
the
making of the Loan to the Borrower. By virtue of the foregoing, after
considering the Guarantor’s probable liability hereunder, the Guarantor is
receiving at least reasonably equivalent value from Lender for its
guaranty and will not be rendered insolvent thereby; and after giving
effect to the transactions contemplated hereby, the Guarantor does
not,
and will not, have an unreasonably small capital for the conduct
of its
business and has, and will have, the ability to pay its debts from
time to
time incurred in connection therewith as such debts
mature.
|
4.2
|
The
execution, delivery, and performance by the Guarantor of this Guaranty
do
not and will not:
|
(i)
|
violate
any provision of, or require any filings, registration, consent or
approval under, any law, rule, regulation (including, without limitation,
Regulation U), order, writ, judgment, injunction, decree, determination
or
award presently in effect having applicability to the Guarantor or
the
Borrower;
|
40
(ii)
|
result
in a breach of or constitute a default or require any consent under
any
indenture or loan or credit agreement or any other agreement, lease
or
instrument to which the Guarantor is a party or by which Guarantor
or any
of its properties may be bound or
affected;
|
(iii)
|
result
in, or require, the creation or imposition of any lien, security
interest
or other encumbrance (other than as created hereunder), upon or with
respect to any of the properties now owned or hereafter acquired
by the
Guarantor; or
|
(iv)
|
cause
the Guarantor to be in default under any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award
or any
such indenture, agreement, lease or
instrument.
|
4.3
|
The
Guarantor is a corporation duly organized, validly existing and in
good
standing under the laws of the ____________ of _____________ and
has the
legal power and authority to execute, deliver and fulfill its obligations
set forth in this Guaranty. The Guarantor has all requisite corporate
power to own and operate its properties and to carry on its business
as
now conducted and as proposed to be conducted and is duly qualified
to do
business and in good standing in such other jurisdictions where the
failure to so qualify would have a material adverse effect on the
Guarantor’s business, prospects, operations or financial
condition.
|
4.4
|
This
Guaranty has been duly authorized by all necessary corporate action
and is
a legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its
terms.
|
4.5
|
Any
and all financial statements and other financial data which have
previously been furnished to Lender with respect to Guarantor are
true and
correct in all material respects, fairly, completely and accurately
representing the financial condition of Guarantor as of the date
thereof
and, since the date thereof, there have been no additional borrowings
of
Guarantor, nor has there been any material adverse change in the
financial
condition of Guarantor; there are no legal proceedings, material
claims or
demands pending against, or to the best of Guarantor’s knowledge,
threatened against Guarantor or any of Guarantor’s assets; there are no
federal or state liens filed or threatened against Guarantor or any
of
Guarantor’s assets; and Guarantor is not in default or claimed default
under any agreement for borrowed
money.
|
41
4.6
|
Guarantor
has reviewed and approved the Loan Documents to be signed by Borrower
in
connection with the Loan, and each and every warranty and representation
made by Borrower in the Loan Documents is, to the best of Guarantor’s
knowledge, true and correct.
|
4.7
|
Guarantor
shall, within five (5) business days after receipt thereof, deliver
to
Lender copies of any notices of default served on such Guarantor
pursuant
to the terms of any other material agreement to which such Guarantor
is a
party.
|
5.
|
Primary
Nature of Guaranty.
In giving this Guaranty, Guarantor hereby acknowledges that this
Guaranty
is a guarantee of (i) performance by Borrower under the Loan Documents;
and (ii) payment and not of collection, and that the liability of
Guarantor hereunder is present, absolute, unconditional, continuing,
primary, direct and independent of the obligations of Borrower. Lender
shall not be required to pursue any other remedies before invoking
the
benefits of this Guaranty, including, without limitation, its remedies
under the Loan Documents. With regard to any rights which may accrue
to
Lender under or in connection with the Loan Documents, Lender may,
at its
option, look to Guarantor for the performance of the Guaranteed
Obligations to the extent provided herein, without having first commenced
any action or proceeding against Borrower or any other guarantor
or any
other parties or other security, and without having obtained any
judgment
against Borrower or against any other guarantor. Enforcement of Lender’s
rights against the security given by Borrower for the Loan shall
not
impair the right of Lender to enforce this Guaranty, Guarantor expressly
agreeing that any such action by Lender shall never operate as a
release
of Guarantor’s liability hereunder. Guarantor shall be conclusively bound,
in any jurisdiction, by the judgment rendered in any action by Lender
against Borrower or against any other guarantor, wherever instituted,
as
if Guarantor was a party to such action, even if not actually joined
as a
party.
|
6.
|
Continuing
Nature of Guaranty.
The liability of Guarantor shall remain and continue in full force
and
effect notwithstanding:
|
6.1
|
The
non-liability of Borrower for any reason whatsoever for the payment
and
performance of the Guaranteed Obligations or any part
thereof;
|
6.2
|
The
voluntary or involuntary liquidation, dissolution, sale of all or
substantially all of the property described in the Loan Documents,
marshaling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment or any similar proceeding,
affecting Borrower or any of their
assets;
|
6.3 |
The
assignment or transfer of the Notes or other Loan
Documents;
|
6.4
|
The
release of Borrower from the observance of any of the agreements,
covenants, terms or conditions contained in the Loan Documents by
operation of law;
|
42
6.5
|
Any
defenses or rights of set-off or counter-claims which Borrower may
have or
assert; or
|
6.6
|
Any
failure by Lender to inform Guarantor of any facts Lender may now
or
hereafter know about Borrower, the Loan or the transactions contemplated
in connection therewith, it being understood and agreed that Lender
has no
duty so to inform; it being the intention hereof that Guarantor shall
remain liable hereunder until the Guaranteed Obligations of Borrower
shall
have been fully paid, performed and observed by Borrower, notwithstanding
any act, omission or thing that might otherwise operate as a legal
or
equitable discharge of Guarantor.
|
7.
|
Certain
Rights of Lender.
Lender may at any time and from time to time, with or without
consideration, without prejudice to any claim against Guarantor hereunder,
without in any way changing, releasing or discharging Guarantor from
its
liabilities and obligations hereunder and without notice to or the
consent
of Guarantor:
|
7.1
|
Exchange,
release or surrender all or any part of the security for the Loan
which
Lender may at any time hold;
|
7.2
|
Sell
all or any part of the security for the Loan and become the purchaser
thereof at any such sale;
|
7.3
|
Settle
or compromise with Borrower, or any other person primarily or secondarily
liable with Borrower, the Guaranteed Obligations or any renewal or
extension thereof;
|
7.4
|
Renew,
rearrange or extend the time, manner, place or terms of payment and
performance of the Guaranteed Obligations or any renewal or extension
thereof;
|
7.5
|
Forbear,
extend the time for, or grant indulgences with respect to the enforcement
of any of the Guaranteed Obligations or the exercise by Lender of
any
right or remedy contained in the Loan Documents or available under
applicable law, whether such enforcement be fully prosecuted or
otherwise;
|
7.6
|
Supplement,
change, amend, substitute, modify, alter or cancel the Guaranteed
Obligations or any other Loan Documents;
and
|
7.7
|
Take
other guarantees, collateral or security with respect to the Guaranteed
Obligations.
|
43
8. |
Certain
Waivers by Guarantor.
Guarantor hereby waives:
|
8.1
|
Any
right to require Lender to (i) proceed against Borrower; (ii) proceed
against, exhaust or participate in any security held by Lender for
the
payment and performance of the Guaranteed Obligations, or (iii) pursue
any
other remedy that Lender has or to which it may be
entitled;
|
8.2
|
Notice
of the acceptance of this Guaranty, presentment, demand, protest
and
notice of protest, nonpayment, default or dishonor of the Guaranteed
Obligations or any renewal or extension thereof and any and all other
rights and remedies now or hereafter accorded to guarantors by applicable
law;
|
8.3
|
Diligence
on the part of Lender in the collection of the monetary sums included
in
the Guaranteed Obligations, notice of intention to accelerate the
maturity
of any of the Guaranteed Obligations, notice of the failure of Borrower
to
pay or perform all or any of the Guaranteed Obligations in a timely
manner
and diligence on the part of Lender in preserving the liability of
any
person on any of the Guaranteed Obligations;
and
|
8.4
|
Any
right that Guarantor has or to which Guarantor may be entitled to
cause a
marshaling of Borrower’s assets.
|
9.
|
No
Waiver by Lender.
No failure, omission or delay on the part of Lender in exercising
any
rights hereunder or in taking any action to collect or enforce payment
or
performance of the Guaranteed Obligations or in enforcing observance
or
performance of any agreement, covenant, term or condition to be performed
or observed under the Loan Documents, either against Borrower or
any other
person liable therefor, shall operate as a waiver of any such right
or in
any manner prejudice the rights of Lender against
Guarantor.
|
10.
|
Subordination
of Subrogation.
Guarantor hereby unconditionally and irrevocably agrees that it will
not
at any time exert or exercise against Borrower, and does hereby
subordinate any right of or claim to subrogation, reimbursement,
indemnity, contribution or payment (including any right to proceed
upon
any collateral pledged by Borrower to Guarantor) for or with respect
to
any amounts which Guarantor may pay or be obligated to pay to Lender,
including, without limitation, any right to enforce any remedy which
Guarantor now or hereafter shall have against Borrower by reason
of
obligations which Guarantor may perform, satisfy or discharge under
or
with respect to this Guaranty. The payment of any amounts due with
respect
to any indebtedness of the Borrower now or hereafter held by the
Guarantor
is hereby subordinated to the prior payment in full of the Guaranteed
Obligations, provided that so long as no default in the payment or
performance of the Guaranteed Obligations has occurred and is continuing,
or no demand for payment of any of the Guaranteed Obligations has
been
made that remains unsatisfied, the Borrower may make, and the Guarantor
may demand and accept, payments of principal and interest on such
subordinated indebtedness. The Guarantor agrees that after the occurrence
of any default in the payment or performance of the Guaranteed
Obligations, the Guarantor will not demand, xxx for or otherwise
attempt
to collect any such indebtedness of the Borrower to the Guarantor
until
the Guaranteed Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, the Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by the Guarantor
as
trustee for the Lender and be paid over to the Lender on account
of the
Guaranteed Obligations without affecting in any manner the liability
of
the Guarantor under the other provisions of this
Guaranty.
|
44
11.
|
Financial
Information and Condition.
Guarantor shall furnish to Lender all such financial information
as set
forth in the Loan Agreement. At any time during the term of the Loan,
Guarantor shall provide Lender with any additional financial information
reasonably requested by Lender. Guarantor shall immediately notify
Lender
of any material adverse change in the financial condition of the
Guarantor.
|
12.
|
Right
of Set-Off.
Upon the occurrence of a default under the Loan Documents, Lender
is
hereby authorized, at any time and from time to time, without notice
to
Guarantor or to any other person, any such notice being hereby expressly
waived, to set-off, appropriate and apply any and all deposits (general
or
special), and any other indebtedness at any time held or owing by
Lender
to or for the credit or the account of Guarantor (collectively, the
“Deposits”),
against and on account of any obligations and liabilities of Guarantor
hereunder, although said obligations and liabilities, or any of them,
shall be contingent or unmatured. The Guarantor hereby grants to
Lender a
security interest in such Deposits.
|
13.
|
Mandatory
Refunds.
If, for any reason, any payment to Lender on account of the Guaranteed
Obligations is required to be refunded to Borrower, or paid over
to any
other party, including, without limitation, by reason of the operation
of
bankruptcy laws now or hereafter enacted, Guarantor agrees to pay
the
amounts so required to be refunded or paid over upon demand, it being
acknowledged and agreed that the Guaranteed Obligations shall not
be
treated as having been discharged by reason of any payment to Lender
giving rise to an obligation on the part of Lender to repay the same,
and
this Guaranty shall be treated as remaining in full force and effect
with
respect to any such repayment so made by Lender, as well as for any
amounts not previously paid to Lender on account of the Guaranteed
Obligations.
|
14.
|
Multiple
Guarantors.
If there is more than one guarantor of the Guaranteed Obligations:
(a) the
obligations, covenants, warranties and representations of each guarantor
shall be joint and several; (b) the granting of a written release
of
liability hereunder of less than all of the guarantors shall be effective
with respect to the liability hereunder of only those specifically
so
released, but shall in no way affect the liability hereunder of any
guarantor not so released; and (c) each guarantor waives any right
to
require Lender to proceed against any other guarantor. Any prior
or
subsequent guaranty to Lender shall not be deemed to be in lieu of
or to
supersede or terminate this Guaranty, but shall be construed as an
additional or supplementary guaranty unless otherwise expressly provided
herein.
|
45
15.
|
Default.
Failure of Guarantor to keep, observe or perform any term, covenant
or
agreement made under this Guaranty by Guarantor or under any other
obligations of Guarantor to Lender after the expiration of any applicable
cure period shall constitute an Event of Default under this Guaranty
and
under the Loan Documents, whether or not provision therefor is made
in
such documents. In addition to the Events of Default described in
this
Section 15, the following events, after the expiration of any applicable
grace periods, shall also constitute “Events of Default” under this
Guaranty:
|
15.1
|
If
any representation or warranty by the undersigned or in any writing
furnished by the undersigned in connection with or pursuant to this
Guaranty shall be false in any material respect with respect to the
undersigned on the date as of which made;
or
|
15.2
|
If
the Guarantor makes an assignment for the benefit of creditors;
or
|
15.3
|
If
the Guarantor petitions or applies to any tribunal for the appointment
of
a trustee or receiver of the business, estate or assets or of any
substantial portion of the business, estate or assets of the undersigned,
or commences any proceedings relating to the Guarantor under any
bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt,
dissolution or liquidation law of any jurisdiction, whether now or
hereafter in effect; or
|
15.4
|
If
any such petition or application is filed or any such proceedings
are
commenced against the Guarantor and the Guarantor by any act indicates
its
approval thereof, consent thereto, or acquiescence therein, or any
order
is entered appointing any such trustee or receiver, or declaring
the
Guarantor bankrupt or insolvent, or approving the petition in any
such
proceedings; or
|
15.5
|
If
the Guarantor shall dissolve, terminate or otherwise fail to maintain
its
legal existence, as the case may
be.
|
If
an
Event of Default shall occur, then or at any time thereafter, while such Event
of Default shall continue, the Lender may declare all Guaranteed Obligations,
together with all obligations of the undersigned hereunder, to be immediately
due and payable.
16. |
General.
|
16.1
|
Costs
and Expenses.
Guarantor shall pay all reasonable attorneys’ fees and disbursements,
costs and expenses incurred by Lender in the enforcement of this
Guaranty.
“Attorneys’ fees” and “counsel fees” and the like as used herein shall
include reasonable fees for the attorneys’ services whether outside or
within judicial proceedings, including also appellate and bankruptcy
court
proceedings.
|
46
16.2
|
Governing
Law.
This Guaranty shall be enforced and construed in accordance with
the laws
of the Commonwealth of Massachusetts, and Guarantor waives the right
to be
sued elsewhere. In the event suit is brought by Lender, Guarantor
agrees
that service of process may be made, and personal jurisdiction obtained,
by service of a copy of the summons, complaint and other pleadings
required to commence such litigation upon Guarantor at the address
designated in Paragraph 1 above.
|
16.3
|
Jury
Trial Waiver.
GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A JURY IN ANY PROCEEDINGS
HEREAFTER INSTITUTED BY OR AGAINST GUARANTOR IN RESPECT OF THIS GUARANTY
OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING,
GOVERNING OR SECURING THE NOTES OR GUARANTY, INCLUDING ALL LOAN
DOCUMENTS.
|
16.4
|
Successors
and Assigns.
This Guaranty shall be binding upon Guarantor and the successors,
assigns
and legal representatives of Guarantor, and shall inure to the benefit
of
Lender and the successors, assigns and legal representatives of Lender.
Guarantor may not assign its rights or delegate its duties under
this
Guaranty. The transfer or assignment by Lender of the Notes shall
operate
as a transfer or assignment to the transferee or assignee of this
Guaranty
and all rights and privileges
hereunder.
|
16.5
|
Cumulative
Remedies.
All of Lender’s rights, remedies and recourse under the Loan Documents or
this Guaranty are separate and cumulative and may be pursued separately,
successively or concurrently, are non-exclusive and the exercise
of any
one or more of them shall in no way limit or prejudice any other
legal or
equitable right, remedy or recourse to which Lender may be
entitled.
|
16.6
|
Gender
and Number.
Whenever the context so requires the masculine gender shall include
the
feminine and/or neuter and the singular number shall include the
plural
and conversely in each case.
|
16.7
|
Modifications.
No provision hereof shall be modified or limited except by a written
agreement expressly referring to this Guaranty and to the provision
so
modified or limited and signed by Guarantor and
Lender.
|
16.8
|
Severability.
In case any one or more of the provisions contained in this Guaranty
shall
for any reason be held to be invalid, illegal or unenforceable in
any
respect, such invalidity, illegality or unenforceability shall not
affect
any other provision hereof, and this Guaranty shall be construed
as if
such invalid, illegal or unenforceable provision had never been contained
herein.
|
47
16.9
|
Notices.
Any notice, request, demand or other communication required or permitted
hereunder shall be given in writing by delivering the same in person
to
the intended addressee, by overnight courier service with guaranteed
next
day delivery or by certified United States Mail, postage prepaid
or
telegram sent to the intended addressee at the applicable address
set
forth on Page 1 hereof or to such different address as either Guarantor
or
Lender shall have designated by written notice to the other sent
in
accordance herewith.
Copies of all notices to Lender shall also be sent to Xxxxx X. Xxxxxxxx,
Esquire, Xxxxxxxx Xxxxxxx Xxxxxxxx P.C., 000 Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxx, XX 00000.
Such notices shall be deemed given when received or, if earlier,
in the
case of delivery by courier service with guaranteed next day delivery,
the
next day or the day designated for delivery, or in the case of delivery
by
certified United States Mail, two days after deposit
therein.
|
16.10
|
Headings.
The headings of sections herein are inserted only for convenience
and
shall in no way define, describe or limit the scope or intent of
any
provisions of this Guaranty.
|
[Signature
on following page]
48
IN
WITNESS WHEREOF, Guarantor has executed this Guaranty under seal as of the
date
first above written.
GUARANTOR:
|
|||||
|
|||||
|
By:
|
|
|||
Witness
|
Name:
|
||||
Title:
|
49
EXHIBIT
C
FORM
OF
SECURITY AGREEMENT TO BE PROVIDED BY ACQUIRED ENTITY
SECURITY
AGREEMENT
This
Security Agreement (the “Agreement”),
dated
this ___ day of ________, 200_ is by and between __________________, a ________
corporation with its principal place of business at
______________________________________________ (the “Guarantor”),
and
RBS Citizens, National Association, a
national bank having a lending office at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
(the
“Secured
Party”).
WITNESSETH
THAT:
WHEREAS,
the Guarantor has duly authorized, executed and delivered to the Secured Party
a
certain Guaranty of even date herewith (the “Guaranty”),
guaranteeing the payment and performance of all obligations of National
Investment Managers Inc., a Florida corporation having an address of 000 Xxxxx
Xxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 (the “Borrower”)
to the
Secured Party, including without limitation the obligations of Borrower under
(a) a certain Term Promissory Note dated as of November 30, 2007 from the
Borrower to the Secured Party in the maximum principal amount of up to
$13,000,000.00 and (b) a certain Revolving Line of Credit Note dated as of
November 30, 2007 from the Borrower to the Secured Party in the maximum
principal amount of $2,000,000.00 (together, the “Notes”)
and
any amendments, extensions or renewals of such Notes;
WHEREAS,
the obligation of the Secured Party to make the loans evidenced by the Notes
(the “Loans”) is subject to the condition, among others, that the Guarantor
grant to and create in favor of the Secured Party a security interest in and
lien upon all business assets and rights of the Guarantor as hereinafter
provided; and
WHEREAS,
in order to induce the Secured Party to make the Loans, the Guarantor has agreed
to join with the Secured Party in this Agreement.
NOW,
THEREFORE, in consideration of and as an inducement to the Secured Party to
make
the Loans, the parties hereto, intending to be legally bound, covenant and
agree
as follows:
Section 1. |
Definitions.
|
(a)
|
Certain
Definitions.
In addition to the words and terms defined elsewhere in this Agreement,
the following words and terms shall have the following meanings,
respectively, unless the context hereof otherwise clearly
requires:
|
50
(i) |
“Collateral”
shall mean all personal property of Guarantor including, without
limitation, all of the following items, whether now owned or now
due, or
in which the Guarantor has an interest or hereafter, at anytime in
the
future, acquired, arising or to become due, or in which the Guarantor
obtains an interest, and all products, proceeds, replacements,
substitutions and accessions of or to any of the following, which
to the
extent not defined below, shall have the meanings given to them under
the
Uniform Commercial Code as enacted in the Commonwealth of Massachusetts
or
as enacted in the state in which such Collateral is
located:
|
A. |
all
accounts and accounts receivable;
|
B.
|
all
inventory (including raw materials, work-in-process, finished goods
and
supplies);
|
C. |
all
contract rights;
|
D.
|
all
general intangibles (including, without limitation, payment intangibles,
software, trademarks, patents, copyrights or other intellectual property
rights of Guarantor);
|
E. |
all
equipment (including all machinery, furniture and
fixtures);
|
F. |
all
farm products;
|
G. |
all
goods;
|
H. |
all
chattel paper (whether tangible or
electronic);
|
I. |
all
fixtures;
|
J.
|
all
investment property (including, without limitation, all financial
assets,
certificated and uncertificated securities, securities accounts and
security entitlements);
|
K. |
all
letter-of-credit rights;
|
L.
|
all
rights under judgments, all commercial tort claims and choses in
action;
|
M.
|
all
books, records and information relating to the Collateral and/or
to the
operation of the Guarantor’s business and all rights of access to such
books, records and information and all property in which such books,
records and information are stored, recorded and
maintained;
|
51
N.
|
all
instruments, promissory notes, documents of title, documents, policies
and
certificates of insurance, securities, deposits, deposit accounts,
money,
cash or other property;
|
O.
|
all
federal, state and local tax refunds and/or abatements to which the
Guarantor is or becomes entitled no matter how or when arising, including,
but not limited to, any loss carryback tax
refunds;
|
P.
|
all
insurance proceeds, refunds and premium rebates, including without
limitation proceeds of fire and credit insurance, whether any of
such
proceeds, refunds and premium rebates arise out of any of the foregoing
(A-O) or otherwise;
|
Q.
|
all
liens, guaranties, rights, remedies and privileges pertaining to
any of
the foregoing (A-O) including the right of stoppage in
transit.
|
(ii)
|
“Event(s)
of Default”
shall mean any default or breach of the terms, conditions or covenants
of
this Agreement that remains uncured for thirty (30) days after written
notice of such default from Lender to Borrower, or any Event of Default
under and as defined in the Loan Agreement, the Notes, or the other
Loan
Documents (as defined in the Loan
Agreement).
|
(iii)
|
“Loan
Agreement”
shall mean a certain Revolving
Line of Credit and Term Loan Agreement dated as of November 30, 2007
by
and between the Borrower and the Secured
Party.
|
(iv)
|
“Obligations”
shall mean the
payment and performance of all obligations of Guarantor under the
Guaranty.
|
(b)
|
Construction.
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural
and
the part the whole, and “or” has the inclusive meaning represented by the
phrase “and/or”. The words “hereof”, “herein”, “hereunder” and similar
terms in this Agreement refer to this Agreement as a whole and not
to any
particular provision of this Agreement. The section and other headings
contained in this Agreement are for reference purposes only and shall
not
control or affect the construction of this Agreement or the interpretation
hereof in any respect. Section, subsection and exhibit references
are to
this Agreement unless otherwise
specified.
|
52
Section 2. |
Security
Interest.
Guarantor, on the terms set forth in this Agreement and as security
for
the full and timely payment of the Obligations in accordance with
the
terms thereof and of the instruments now or hereafter evidencing
the
Obligations, hereby grants to the Secured Party a continuing security
interest, under the Uniform Commercial Code (as in effect on the
date
hereof and as amended from time to time hereafter) of each state
having
jurisdiction from time to time with respect to all or any portion
of the
Collateral (the “Code”),
in and a lien on the Collateral. In addition to all the rights given
to
the Secured Party by the Loan Agreement, the Notes, the other Loan
Documents, and this Agreement, the Secured Party shall have all the
rights
and remedies of a secured party under the Code. In connection with
the
grant of security interest made hereby, Guarantor hereby authorizes
Secured Party to file or cause to be filed one or more financing
statements, amendments to financing statements and/or in lieu financing
statements with any filing office for the purpose of perfecting or
continuing the perfection of the security interest in the
Collateral.
|
Section 3. |
Principles
Applicable to the Collateral.
The parties agree that, at all times during the term of this Agreement,
the following provisions shall be applicable to the
Collateral:
|
(a)
|
The
Guarantor covenants and agrees that it will keep accurate and complete
books and records concerning the Collateral owned by it in accordance
with
generally accepted accounting principles, consistently
applied.
|
(b)
|
The
Secured Party shall have the right to review the books and records
of the
Guarantor pertaining to the Collateral and to copy and make excerpts
therefrom, all at such times and as often as the Secured Party may
reasonably request upon three (3) business days’ written
notice.
|
(c)
|
The
Guarantor shall maintain and keep (i) its principal place of business
and
its chief executive office, (ii) its records concerning the Collateral
and
(iii) its Collateral at the address set forth on the first page of
this
Agreement and at no other location, without the prior written consent
of
the Secured Party.
|
(d)
|
Notwithstanding
the security interest in the Collateral granted to and created in
favor of
the Secured Party under this Agreement, the Guarantor shall have
the
right, until one or more Events of Default shall occur, to sell,
lease or
otherwise dispose of the Collateral in the ordinary course of the
Guarantor’s business.
|
(e)
|
Notwithstanding
the security interest in the Collateral granted to and created in
favor of
the Secured Party under this Agreement, the Guarantor shall have
the
right, until such time as the Secured Party shall have notified the
Guarantor that it has revoked such right based upon an Event of Default
at
its own cost and expense to collect any and all accounts of the Guarantor
comprising the Collateral (the “Accounts”).
|
53
(f)
|
The
Secured Party shall have the right after an Event of Default has
occurred
(i) to revoke the right of the Guarantor granted under subsection
(e) of
this Section 3 by written notice to the Guarantor to such effect,
(ii) to
take over and direct collection of any and all Accounts of the Guarantor,
(iii) to give notice of the Secured Party’s security interest in such
Accounts to any or all persons obligated to the Guarantor thereon,
(iv) to
direct such persons to make payment of such Accounts directly to
the
Secured Party and (v) to take control of such Accounts and any proceeds
thereof.
|
(g)
|
The
Secured Party shall have the right after an Event of Default to cause
a
non-interest bearing bank account entitled “Cash Collateral Account” (the
“Collateral
Account”)
to be opened and maintained for the Guarantor at the principal office
of
the Secured Party. All cash proceeds received by the Secured Party
from
the Guarantor pursuant to subsection (h) of this Section 3 or directly
from persons obligated on Accounts pursuant to subsection (f) of
this
Section 3 shall be deposited in the Collateral Account as further
security
for the payment of the Obligations. The Secured Party shall have
sole
dominion and control over all funds deposited in the Collateral Account,
and such funds may be withdrawn therefrom only by the Secured
Party.
|
(h)
|
Upon
notice by the Secured Party to the Guarantor that the Collateral
Account
has been opened in accordance with subsection (g) of this Section
3, the
Guarantor shall cause all cash proceeds collected by it to be delivered
to
the Secured Party forthwith upon receipt, in the original form in
which
received, bearing such endorsements or assignments by the Guarantor
as may
be necessary to permit collection thereof by the Secured Party, and
for
such purpose the Guarantor hereby irrevocably authorizes and empowers
the
Secured Party, its officers, employees and authorized agents, to
endorse
and sign the name of the Guarantor on all checks, drafts, money orders
or
other media of payment so delivered and such endorsements or assignments
shall, for all purposes, be deemed to have been made by the Guarantor
prior to any endorsement or assignment thereof by the Secured Party.
The
Secured Party may use any convenient or customary means for the purpose
of
collecting such checks, drafts, money orders or other media of
payment.
|
Section 4. |
Certain
Covenants.
Until payment in full of the Obligations, the Guarantor agrees
that:
|
(a)
|
The
Guarantor has and will have good and marketable title to the Collateral
from time to time owned or acquired by it, free and clear of all
liens,
encumbrances and security interests, except security interests granted
to
and created in favor of the Secured Party and as otherwise set forth
in
that certain Revolving Line of Credit and Term Loan Agreement of
even date
herewith by and between Borrower and Secured Party. The Guarantor
shall
defend such title against the claims and demands of all
persons.
|
54
(b)
|
The
Guarantor shall not, without the prior written consent of the Secured
Party, (i) borrow against the Collateral from any person, firm or
corporation other than the Secured Party, (ii) create, incur, assume
or
suffer to exist any mortgage, lien, charge or encumbrance on, or
security
interest in, or pledge of or conditional sale or other title retention
agreement with respect to any of the Collateral, except the security
interest created hereunder, (iii) permit any levy or attachment to
be made
against any of the Collateral except a levy or attachment relating
to this
Agreement, unless removed within sixty (60) days after written notice
by
Secured Party to Guarantor, (iv) permit any financing statement to
be on
file with respect to any of the Collateral, except financing statements
in
favor of the Secured Party, or (v) permit any transfer of Collateral
without the consent of the Secured
Party.
|
(c)
|
The
Guarantor shall faithfully preserve and protect the Secured Party’s
security interest in the Collateral and shall, at its own cost and
expense, cause said security interest to be perfected and continued
perfected, and for such purpose, the Guarantor shall from time to
time at
the request of the Secured Party execute and file or record, or cause
to
be filed or recorded, or authorize the Secured Party to execute and
file
or record, such instruments, documents and notices, including, without
limitation, financing statements and continuation statements, as
the
Secured Party may deem necessary or advisable in order to perfect
and
continue perfected said security interest. The Guarantor shall do
all such
other acts and things and execute and deliver all such other instruments
and documents, including, without limitation, further security agreements,
pledges and assignments, as the Secured Party may reasonably deem
necessary or advisable from time to time in order to perfect and
preserve
the priority of said security interest as a first lien security interest
in the Collateral prior to the rights of all persons therein or thereto.
The Secured Party is hereby appointed attorney-in-fact for the Guarantor
to do all acts and things which it may deem necessary or advisable
to
preserve, perfect and continue perfected its security interest in
the
Collateral, including, without limitation, the signing and recording
of
financing and other similar
statements.
|
55
(d)
|
Risk
of loss of, damage to or destruction of the Collateral is on the
Guarantor. The Guarantor shall insure the Collateral against such
risks
and casualties and in such amounts and with such insurers as acceptable
to
Secured Party in its reasonable discretion. All such policies of
insurance
shall contain loss payable clauses in favor of the Guarantor and
the
Secured Party as their respective interests may appear, and show
Secured
Party as an additional insured on the liability portion of said policy,
and such policies or certificates evidencing the same shall be deposited
with the Secured Party immediately upon the request of the Secured
Party.
If the Guarantor fails to effect and keep in full force and effect
such
insurance or fails to pay the premiums thereon when due, the Secured
Party
may do so for the account of the Guarantor and add the cost thereof
to the
Obligations. The Guarantor hereby assigns and sets over unto the
Secured
Party all monies which may become payable on account of such insurance,
including, without limitation, any return of unearned premiums which
may
be due upon cancellation of any such insurance, and authorizes the
Secured
Party to direct the insurers to pay the Secured Party any amount
so due.
The Secured Party, its officers, employees and authorized agents,
are
hereby irrevocably appointed attorney-in-fact of the Guarantor to
endorse
any draft or check which may be payable to the Guarantor in order
to
collect the proceeds of such insurance or any return of unearned
premiums.
Such proceeds shall be applied to the payment or prepayment of the
Obligations. Any balance of insurance proceeds remaining in the possession
of the Secured Party after payment in full of the Obligations shall
be
paid to the Guarantor or order.
|
(e)
|
The
Guarantor assumes full responsibility for taking any and all necessary
steps to preserve its rights in the Accounts against account debtors.
The
Secured Party shall be deemed to have exercised reasonable care in
the
custody and preservation of such of the Collateral as may be in its
possession if it takes such action for that purpose as the Guarantor
shall
request in writing, provided that such requested action shall not,
in the
reasonable judgment of the Secured Party, impair the Secured Party’s
security interest in the Collateral or its rights in, or the value
of, the
Collateral, and provided further that such written request is received
by
the Secured Party in sufficient time to permit it to take the requested
action.
|
(f)
|
The
Guarantor shall maintain each item of Collateral in good condition
and
repair and shall pay and discharge all taxes, levies and other impositions
levied or assessed thereon as well as the cost of repairs to or
maintenance of the same. If the Guarantor fails to do so, the Secured
Party may pay the cost of such repairs or maintenance and such taxes,
levies or other impositions for the account of the Guarantor and
add the
amount thereof to the Obligations.
|
Section 5. |
Events
of Default.
|
(a)
|
If
one or more Events of Default shall occur, then, and in any such
event,
the Secured Party may forthwith proceed to exercise any one or more
of the
rights and remedies afforded a secured party by the Code and such
other
rights and remedies which it may have at law or in equity, under
this
Agreement, all of which rights and remedies shall, to the full extent
permitted by law, be cumulative. Without limitation upon the foregoing,
the Secured Party shall have the right without demand or prior notice
to
the Guarantor or any other person, except as otherwise required by
law
(and if notice is required by law, after ten (10) days’ prior written
notice to the Guarantor at its address hereinafter set forth) and
without
prior judicial hearing or legal proceedings, all of which the Guarantor
hereby expressly waives:
|
56
(i)
|
to
enter any premises where Collateral is located and to take possession
and
control of the same;
|
(ii)
|
to
enforce collection, at the Guarantor’s expense and either in the name of
the Secured Party or the name of the Guarantor, of any or all of
the
Accounts by suit or otherwise, to surrender, release or exchange
all or
any part thereof, or to compromise or extend or renew (whether or
not
longer than the original period) any indebtedness
thereunder;
|
(iii)
|
to
take over and perform any contract of the Guarantor and to take control
of
any and all Accounts and proceeds arising
therefrom;
|
(iv)
|
to
sell all or any portion of the Collateral at public or private sale
at
such place or places and at such time or times and in such manner
and upon
such terms, whether for cash or credit, as the Secured Party in its
sole
discretion may determine; and
|
(v)
|
to
endorse in the name of the Guarantor any instrument, howsoever received
by
the Secured Party, representing proceeds of any of the
Collateral.
|
The
Secured Party shall apply the proceeds of any sale or other disposition of
any
realization of the Collateral after default first to the payment of the
reasonable costs and expenses incurred by the Secured Party in connection with
such sale or other disposition or realization, including reasonable attorneys’
fees and legal expenses, second to the repayment of the Obligations to the
Secured Party, whether on account of principal or interest or otherwise as
the
Secured Party in its sole discretion may elect, and then to the payment of
the
balance, if any, as required by law. If the proceeds of any such sale or other
disposition of the Collateral are insufficient to pay the Obligations and the
Secured Party’s reasonable costs hereunder, the Guarantor shall be liable for
any deficiency.
(b)
|
Upon
the occurrence of any Event of Default, the Guarantor shall promptly
upon
demand by the Secured Party assemble the Collateral and make it available
to the Secured Party at a place to be designated by the Secured Party
which shall be reasonably convenient to both parties. The right of
the
Secured Party under this Section to have the Collateral assembled
and made
available to it is the essence of this Agreement, and the Secured
Party
may, at its election, enforce such right by a xxxx in equity for
specific
performance.
|
57
Section 6. |
Defeasance.
Upon payment in full of the Obligations, this Agreement shall terminate
and be of no further force or effect. Until such time, however, this
Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and
assigns.
|
Section 7. |
Subrogation
and Marshaling.
The Guarantor hereby waives, surrenders and agrees not to claim or
enforce, so long as the Obligations or any portion thereof remains
outstanding, (a) any right to be subrogated in whole or in part to
any
right or claim of the holder of any part of the Obligations and (b)
any
right to require marshaling of any assets of the Guarantor which
right of
subrogation or marshaling might otherwise arise from any payment
to the
holder of any part of the Obligations arising out of the enforcement
of
the security interest granted hereby, or any other mortgage or security
interest granted by the Guarantor or any other person to the Secured
Party, or the liquidation of or the realization upon the Collateral,
any
other collateral granted by the Guarantor or any other person to
the
Secured Party, or any part thereof.
|
Section 8. |
Severability.
If any provision of this Agreement shall for any reason be held invalid
or
unenforceable, such invalidity or unenforceability shall not affect
any
other provision hereof, but this Agreement shall be construed as
if such
invalid or unenforceable provision had never been contained
herein.
|
Section 9. |
No
Waiver; Rights Cumulative.
No failure or delay on the part of the Secured Party in exercising
any
right, remedy, power or privilege hereunder shall operate as a waiver
thereof or of any other right, remedy, power or privilege hereunder;
nor
shall any single or partial exercise of any such right, remedy, power
or
privilege preclude any other or further exercise thereof or of any
other
right, remedy, power or privilege. The rights and remedies of the
Secured
Party under this Agreement are cumulative and not exclusive of any
rights
or remedies which it may otherwise have. No modification or waiver
of any
provision of this Agreement nor consent to any departure by the Guarantor
therefrom shall be effective unless the same shall be in writing,
and then
such waiver or consent shall be effective only in the specified instance
and for the specific purpose for which
given.
|
Section 10. |
Notices.
Any notice, request, demand or other communication required or permitted
hereunder shall be given in writing by delivering the same in person
to
the intended addressee, by overnight courier service with guaranteed
next
day delivery or by certified United States Mail, postage prepaid
or
telegram sent to the intended addressee at the applicable address
set
forth on Page 1 hereof or to such different address as either Guarantor
or
Secured Party shall have designated by written notice to the other
sent in
accordance herewith. Such notices shall be deemed given when received
or,
if earlier, in the case of delivery by courier service with guaranteed
next day delivery, the next day or the day designated for delivery,
or in
the case of delivery by certified United States mail, two days after
deposit therein.
|
58
Section 11. |
Governing
Law.
The Code shall govern the attachment, perfection and the effect of
attachment and perfection of the Secured Party’s interest in the
Collateral, and the rights, duties and obligations of the Guarantor
and
the Secured Party with respect thereto. This Agreement shall be deemed
to
be a contract under the laws of the Commonwealth of Massachusetts,
and the
execution and delivery hereof and, to the extent not inconsistent
with the
preceding sentence, the terms and provisions hereof, shall be governed
by
and construed in accordance with the laws of the Commonwealth of
Massachusetts.
|
Section 12. |
Survival.
All representations, warranties, covenants and agreements contained
herein
or made in writing in connection herewith shall survive the execution
and
delivery of this Agreement and the extension of the
Loans.
|
[Signatures
on following page]
59
IN
WITNESS WHEREOF, the parties have executed this Agreement under seal the day
and
year first above written.
GUARANTOR:
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|
By:
|
|
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Witness
|
Name:
|
||||
Title:
|
|||||
SECURED
PARTY:
|
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RBS
CITIZENS, NATIONAL ASSOCIATION
|
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|
By:
|
|
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Witness
|
Xxxxx
X. Xxxxxx, Senior Vice President
|
60