LOAN AND SECURITY AGREEMENT
DATED AS OF DECEMBER 20, 2001
BETWEEN
LASALLE BUSINESS CREDIT, INC.
AND
GIBRALTAR PACKAGING GROUP, INC.,
RIDGEPAK CORPORATION
STANDARD PACKAGING AND PRINTING CORP.
AND
NIEMAND INDUSTRIES, INC.
TABLE OF CONTENTS
Page
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1. DEFINITIONS....................................................................................1
2. LOANS.........................................................................................10
(a) Revolving Loans........................................................................10
(b) Term Loan..............................................................................12
(c) The Special Advance Loan...............................................................12
(d) Repayments.............................................................................12
3. LETTERS OF CREDIT.............................................................................14
(a) General Terms..........................................................................14
(b) Requests for Letters of Credit.........................................................14
(c) Obligations Absolute...................................................................15
(d) Expiration Dates of Letters of Credit..................................................15
4. INTEREST, FEES AND CHARGES....................................................................15
(a) Rates of Interest......................................................................15
(b) Other LIBOR Provisions.................................................................16
(c) Fees And Charges.......................................................................18
(d) Maximum Interest.......................................................................19
5. COLLATERAL....................................................................................20
(a) Grant of Security Interest to Lender...................................................20
(b) Other Security.........................................................................20
(c) Possessory Collateral..................................................................21
(d) Electronic Chattel Paper...............................................................21
6. PRESERVATION OF COLLATERAL AND PERFECTION OF SECURITY INTERESTS THEREIN.......................21
7. POSSESSION OF COLLATERAL AND RELATED MATTERS..................................................22
8. COLLECTIONS...................................................................................22
9. COLLATERAL, AVAILABILITY AND FINANCIAL REPORTS AND SCHEDULES..................................24
(a) Loan Reports...........................................................................24
(b) Monthly Reports........................................................................24
(c) Financial Statements...................................................................24
(d) Annual Projections.....................................................................25
(e) Explanation of Budgets and Projections.................................................25
(f) Public Reporting.......................................................................25
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(g) Other Information......................................................................25
10. TERMINATION; AUTOMATIC RENEWAL...............................................................25
11. REPRESENTATIONS AND WARRANTIES...............................................................26
(a) Financial Statements and Other Information.............................................27
(b) Locations..............................................................................27
(c) Loans by Borrower......................................................................27
(d) Accounts and Inventory.................................................................27
(e) Liens..................................................................................27
(f) Organization, Authority and No Conflict................................................28
(g) Litigation.............................................................................28
(h) Compliance with Laws and Maintenance of Permits........................................28
(i) Affiliate Transactions.................................................................29
(j) Names and Tradenames...................................................................29
(k) Equipment..............................................................................29
(l) Enforceability.........................................................................29
(m) Solvency...............................................................................29
(n) Indebtedness...........................................................................29
(o) Margin Security and Use of Proceeds....................................................30
(p) Parent, Subsidiaries and Affiliates....................................................30
(q) No Defaults............................................................................30
(r) Employee Matters.......................................................................30
(s) Intellectual Property..................................................................30
(t) Environmental Matters..................................................................30
(u) ERISA Matters..........................................................................31
(v) Real Estate Matters....................................................................31
12. AFFIRMATIVE COVENANTS........................................................................32
(a) Maintenance of Records.................................................................32
(b) Notices................................................................................32
(c) Compliance with Laws and Maintenance of Permits........................................33
(d) Inspection and Audits..................................................................33
(e) Insurance..............................................................................34
(f) Collateral.............................................................................35
(g) Use of Proceeds........................................................................35
(h) Taxes..................................................................................35
(i) Intellectual Property..................................................................36
(j) Bank Accounts..........................................................................36
(k) Real Estate Matters....................................................................36
13. NEGATIVE COVENANTS...........................................................................36
(a) Guaranties.............................................................................37
(b) Indebtedness...........................................................................37
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(c) Liens..................................................................................37
(d) Mergers, Sales, Acquisitions, Subsidiaries and Other Transactions Outside the Ordinary
Course of Business................................................................37
(e) Dividends and Distributions............................................................38
(f) Investments; Loans.....................................................................38
(g) Fundamental Changes, Line of Business..................................................38
(h) Equipment..............................................................................38
(i) Use of Proceeds........................................................................38
(j) Affiliate Transactions.................................................................38
(k) Real Estate Matters....................................................................39
14. FINANCIAL COVENANTS..........................................................................39
(a) Net Worth..............................................................................39
(b) Debt Service Coverage..................................................................40
(c) Interest Coverage......................................................................40
(d) Capital Expenditure Limitations........................................................40
15. DEFAULT......................................................................................40
(a) Payment................................................................................41
(b) Breach of this Agreement and the Other Agreements......................................41
(c) Breaches of Other Obligations..........................................................41
(d) Breach of Representations and Warranties...............................................41
(e) Loss of Collateral.....................................................................41
(f) Levy, Seizure or Attachment............................................................41
(g) Bankruptcy or Similar Proceedings......................................................41
(h) Appointment of Receiver................................................................42
(i) Judgment...............................................................................42
(j) Death or Dissolution of Obligor........................................................42
(k) Default or Revocation of Guaranty......................................................42
(l) Criminal Proceedings...................................................................42
(m) [Intentionally Omitted.]...............................................................42
(n) Change of Management...................................................................42
(o) Material Adverse Effect................................................................42
16. REMEDIES UPON AN EVENT OF DEFAULT............................................................43
17. CONDITIONS PRECEDENT.........................................................................44
18. INDEMNIFICATION..............................................................................44
19. NOTICE.......................................................................................45
20. CHOICE OF GOVERNING LAW; CONSTRUCTION; FORUM SELECTION.......................................45
21. MODIFICATION AND BENEFIT OF AGREEMENT........................................................46
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22. HEADINGS OF SUBDIVISIONS; RECITALS...........................................................47
23. POWER OF ATTORNEY............................................................................47
24. CONFIDENTIALITY..............................................................................47
25. COUNTERPARTS.................................................................................47
26. ELECTRONIC SUBMISSIONS.......................................................................47
27. WAIVER OF JURY TRIAL; OTHER WAIVERS..........................................................48
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LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (as amended, modified or
supplemented from time to time, this "Agreement") made this 20th day of
December, 2001 by and between LaSalle Business Credit, Inc., a Delaware
corporation ("Lender"), 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000,
and Gibraltar Packaging Group, Inc., a Delaware corporation, having its
principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx
00000-0000 ("Gibraltar"), RidgePak Corporation, an Illinois corporation, having
its principal place of business at 0000 Xxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxx 00000
("RidgePak"), Standard Packaging and Printing Corp., a North Carolina
corporation, having its principal place of business at Xxxxxxx 00 Xxxx, Xx.
Xxxxxx, Xxxxx Xxxxxxxx 00000 ("Standard"), and Niemand Industries, Inc., a
Delaware corporation, having its principal place of business at 0000 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000-0000 ("Niemand").
WITNESSETH:
WHEREAS, Borrower may, from time to time, request Loans from
Lender, and the parties wish to provide for the terms and conditions upon which
such Loans or other financial accommodations, if made by Lender, shall be made;
WHEREAS, Gibraltar, RidgePak, Standard and Niemand will each
derive significant financial benefit from the transactions described herein,
which financial benefits are in amounts commensurate with the value of the
Collateral in which security interests herein are granted to Lender by
Gibraltar, RidgePak, Standard, and Niemand respectively; and
WHEREAS, from time to time, Gibraltar, RidgePak, Standard,
and Niemand pay, fund and perform on behalf of one another, costs, fees,
expenses, taxes, monies and other obligations.
NOW, THEREFORE, in consideration of any Loan (including any
Loan by renewal or extension) hereafter made to Borrower by Lender, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by Borrower, the parties agree as follows:
1. DEFINITIONS.
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"Account", "Account Debtor", "Chattel Paper", "Commercial
Tort Claims", "Deposit Accounts", "Documents", "Electronic Chattel Paper",
"Equipment", "Fixtures", "General Intangibles", "Goods", "Instruments",
"Inventory", "Investment Property", "Letter-of-Credit Right", "Proceeds" and
"Tangible Chattel Paper" shall have the respective meanings assigned to such
terms in the Illinois Uniform Commercial Code, as the same may be in effect
from time to time.
"Affiliate" shall mean any Person (i) which directly or
indirectly through one or more intermediaries controls, is controlled by, or is
under common control with, Borrower, (ii) which beneficially owns or holds five
percent (5%) or more of the voting control or equity interests of Borrower, or
(iii) five percent (5%) or more of the voting control or equity interests of
which is beneficially owned or held by Borrower.
"Borrower" means individually, collectively, jointly and
severally, Gibraltar, RidgePak, Standard, and Niemand. Unless otherwise
specified, all references to Borrower herein shall mean each of Gibraltar,
RidgePak, Standard, and Niemand, and all of them together.
"Business Day" shall mean any day other than a Saturday, a
Sunday or (i) with respect to all matters, determinations, fundings and
payments in connection with LIBOR Rate Loans, any day on which banks in London,
England or Chicago, Illinois are required or permitted to close, and (ii) with
respect to all other matters, any day that banks in Chicago, Illinois are
required or permitted to close.
"Capital Expenditures" shall mean with respect to any period,
the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including expenditures for capitalized lease obligations) by
Borrower and its Subsidiaries during such period that are required by generally
accepted accounting principles, consistently applied, to be included in or
reflected by the property, plant and equipment or similar fixed asset accounts
(or intangible items classified as property, plant and equipment subject to
amortization) on the balance sheet of Borrower.
"Collateral" shall mean all of the property of Borrower
described in Section 5 hereof, together with all other real or personal property
of any Obligor or any other Person now or hereafter pledged to Lender to secure,
either directly or indirectly, repayment of any of the Liabilities.
"Debt Service Coverage" shall mean, with respect to any
period, the ratio of (i) Borrower's and its Subsidiaries' net income after
taxes payable for such period (excluding any after-tax gains or losses on the
sale of assets (other than the sale of Inventory in the ordinary course of
business) and excluding other after-tax extraordinary gains or losses), plus
depreciation and amortization deducted in determining net income for such
period, minus Capital Expenditures for such period not financed (by way of
example and without limitation, Capital Expenditures through the Revolving
Loans hereunder are not financed), minus any cash dividends paid or accrued and
cash withdrawals paid or accrued to shareholders or other Affiliates for such
period which were not calculated in determining net income after taxes, and
plus the after-tax increase in LIFO reserves, or minus the after tax decrease
in LIFO reserves all on a consolidated basis, to (ii) Borrower's and its
Subsidiaries' current principal maturities of long term debt and capitalized
leases paid or scheduled to be paid during such period, plus any prepayments on
indebtedness owed to any Person (except trade payables and revolving loans and
except any mandatory prepayments to Lender required hereunder) and paid during
such period.
"EBITDA" shall mean, with respect to any period, Borrower's
and its Subsidiaries' net income after taxes for such period (excluding any
after-tax gains or losses on the sale of assets and excluding other after-tax
extraordinary gains or losses) plus interest expense, income tax expense,
depreciation and amortization for such period, less gains and losses
attributable to any fixed asset sales made during such period, plus or minus
any other non-cash charges or gains which have been subtracted or added in
calculating net income after taxes for such period, all on a consolidated basis.
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"Eligible Account" shall mean an Account owing to Borrower
which is acceptable to Lender in its sole but reasonable discretion. Without
limiting Lender's discretion, Lender shall, in general, consider an Account to
be an Eligible Account if it meets, and so long as it continues to meet, the
following requirements:
(i) it is genuine and in all respects what it
purports to be;
(ii) it is owned by Borrower, Borrower has the
right to subject it to a security interest in favor of Lender or
assign it to Lender and it is subject to a first priority perfected
security interest in favor of Lender and to no other claim, lien,
security interest or encumbrance whatsoever, other than Permitted
Liens;
(iii) it arises from (A) the performance of services
by Borrower in the ordinary course of Borrower's business, and such
services have been fully performed and acknowledged and accepted by the
Account Debtor thereunder; or (B) the sale or lease of Goods by
Borrower in the ordinary course of Borrower's business, and (x) such
Goods have been completed in accordance with the Account Debtor's
specifications (if any) and delivered to the Account Debtor, (y) such
Account Debtor has not refused to accept, returned or offered to
return, any of the Goods which are the subject of such Account
(provided, however, that an Account Debtor's refusal to accept, return
or offer to return Goods shall only render ineligible, a particular
Account to the extent of the Goods so refused, returned or offered for
return), and (z) Borrower has possession of, or Borrower has delivered
to Lender (at Lender's request) shipping and delivery receipts
evidencing delivery of such Goods;
(iv) it is evidenced by an invoice rendered to the
Account Debtor thereunder and does not remain unpaid ninety (90) days
past invoice date provided, however, that if more than twenty-five
percent (25%) of the aggregate dollar amount of invoices owing by a
particular Account Debtor remain unpaid ninety (90) days after the
respective invoice dates thereof, then all Accounts owing to Borrower
by that Account Debtor will be deemed ineligible;
(v) it is a valid, legally enforceable and
unconditional obligation of the Account Debtor thereunder, and is not
subject to setoff, counterclaim, credit, allowance or adjustment by
such Account Debtor, or to any claim by such Account Debtor denying
liability thereunder in whole or in part;
(vi) it does not arise out of a contract or order
which fails in any material respect to comply with the requirements
of applicable law;
(vii) the Account Debtor thereunder is not a
director, officer, employee or agent of Borrower, or a Subsidiary,
Parent or ffiliate;
(viii)it is not an Account with respect to which the
Account Debtor is the United States of America or any state or local
government, or any department, agency or instrumentality thereof,
unless Borrower assigns its right to payment of such Account to
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Lender pursuant to, and in full compliance with, the Assignment of
Claims Act of 1940, as amended, or any comparable state or local law,
as applicable;
(ix) it is not an Account with respect to which the
Account Debtor is located in a state which requires Borrower, as a
precondition to commencing or maintaining an action in the courts of
that state, either to (A) receive a certificate of authority to do
business and be in good standing in such state; or (B) file a notice of
business activities report or similar report with such state's taxing
authority, unless (x) Borrower has taken one of the actions described
in clauses (A) or (B); (y) the failure to take one of the actions
described in either clause (A) or (B) may be cured retroactively by
Borrower at its election; or (z) Borrower has proven, to Lender's
satisfaction, that it is exempt from any such requirements under any
such state's laws (as of the date hereof, Lender is aware that
Minnesota and New Jersey have such preconditions, but laws of other
states of which Lender is unaware, and changes to laws in other states
in which Borrower conducts business may broaden the applicability of
this section);
(x) the Account Debtor is located within the
United States of America or Canada;
(xi) it is not an Account with respect to which the
Account Debtor's obligation to pay is subject to any repurchase
obligation or return right, as with sales made on a xxxx-and-hold,
guaranteed sale, sale on approval, sale or return or consignment basis;
(xii) it is not an Account (A) with respect to which
any representation or warranty contained in this Agreement is untrue;
or (B) which violates any of the covenants of Borrower contained in
this Agreement;
(xiii) except as provided on Schedule 1(CE), it is
not an Account which, when added to a particular Account Debtor's other
indebtedness to Borrower, exceeds 10% of all Accounts of Borrower or a
credit limit determined by Lender in its sole but reasonable discretion
for that Account Debtor (except that Accounts excluded from Eligible
Accounts solely by reason of this clause (xiii) shall be Eligible
Accounts to the extent of such credit limit); and
(xiv) it is not an Account with respect to which the
prospect of payment or performance by the Account Debtor is or will be
impaired, as determined by Lender in its sole but reasonable
discretion.
"Eligible Inventory" shall mean Inventory of Borrower
consisting of Raw Materials, Work in Process and Finished Goods which is
acceptable to Lender in its sole but reasonable discretion. Without limiting
Lender's discretion, Lender shall, in general, consider Inventory consisting of
Raw Materials, Work in Process and Finished Goods to be Eligible Inventory if it
meets, and so long as it continues to meet, the following requirements:
(i) it is owned by Borrower, Borrower has the
right to subject it to a security interest in favor of Lender and it is
subject to a first priority perfected security
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interest in favor of Lender and to no other claim, lien, security
interest or encumbrance whatsoever, other than Permitted Liens;
(ii) it is located on one of the premises listed on
Exhibit A (or other locations of which Lender has been advised in
---------
writing pursuant to subsection 12(b)(i) hereof) and is not in transit;
-------------------
(iii) if held for sale or lease or furnishing under
contracts of service, it is (except as Lender may otherwise consent in
writing) new and unused and free from defects which would, in Lender's
sole determination, affect its market value, and is not shipping
materials, packaging materials or labels except as such are held as
Inventory for sale in the ordinary course of Borrower's business;
(iv) it is not stored with a bailee, consignee,
warehouseman, processor or similar party unless Lender has given its
prior written approval and Borrower has caused any such bailee,
consignee, warehouseman, processor or similar party to issue and
deliver to Lender, in form and substance acceptable to Lender, such
Uniform Commercial Code financing statements, warehouse receipts,
waivers and other documents as Lender shall require;
(v) Lender has determined, in accordance with
Lender's customary business practices, that it is not unacceptable
due to age, type, category or quantity; and
(vi) it is not Inventory (A) with respect to which
any of the representations and warranties contained in this Agreement
are untrue; or (B) which violates any of the covenants of Borrower
contained in this Agreement.
"Environmental Laws" shall mean all federal, state, district,
local and foreign laws, rules, regulations, ordinances, and consent decrees
relating to health, safety, hazardous substances, pollution and environmental
matters, as now or at any time hereafter in effect, applicable to Borrower's
business or facilities owned or operated by Borrower, including laws relating
to emissions, discharges, releases or threatened releases of pollutants,
contamination, chemicals, or hazardous, toxic or dangerous substances,
materials or wastes into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata) or
otherwise relating to the generation, manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended, modified or restated from time to time.
"Event of Default" shall have the meaning specified in
Section 15 hereof.
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"Excess Cash Flow" shall mean with respect of any period,
Borrower's net income after state and federal income taxes actually paid for
such period, plus depreciation and amortization deducted in determining net
income for such period, less all Capital Expenditures incurred during such
period (not financed) (by way of example and without limitation, Capital
Expenditures through the Revolving Loans hereunder are not financed), less all
paid or scheduled
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to be paid long-term debt payments (excluding any prepayments made on
Borrower's debt), less all paid or scheduled capital leases payments.
"Finished Goods" shall mean the final product normally and
customarily produced by Borrower using Raw Materials as of the date hereof and
as represented to Lender as Borrower's typical finished product(s), which
finished product is ready for sale to its customers without further inputs.
"Fiscal Year" shall mean each twelve (12) month accounting
period of Borrower, which ends on the Saturday closest to June 30 of each year.
"Ft. Xxxxx, Indiana Real Property" shall mean that certain
Real Property owned by RidgePak in Ft. Xxxxx, Indiana, which Real Property is
more fully described on Schedule 11(v) hereto.
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"Hastings, Nebraska Real Property" shall mean that certain
Real Property owned by Gibraltar in Hastings, Nebraska, which Real Property is
more fully described on Schedule 11(v) hereto.
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"Hazardous Materials" shall mean any hazardous, toxic or
dangerous substance, materials and wastes, including, without limitation,
hydrocarbons (including naturally occurring or man-made petroleum and
hydrocarbons), flammable explosives, asbestos, urea formaldehyde insulation,
radioactive materials, biological substances, polychlorinated biphenyls,
pesticides, herbicides and any other kind and/or type of pollutants or
contaminants (including, without limitation, materials which include hazardous
constituents), sewage, sludge, industrial slag, solvents and/or any other
similar substances, materials, or wastes and including any other substances,
materials or wastes that are or become regulated under any Environmental Law
(including, without limitation any that are or become classified as hazardous or
toxic under any Environmental Law).
"Indemnified Party" shall have the meaning specified in
Section 18 hereof.
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"Interest Coverage Ratio" means the ratio of (i) EBITDA minus
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Capital Expenditures not financed (by way of example and without limitation,
Capital Expenditures through the Revolving Loans hereunder are not financed) to
(ii) scheduled payments of interest and fees, to the extent carried as interest
expense on Borrower's financial statements, with respect to indebtedness for
borrowed money (including the interest component payments with respect to
capitalized leases)
"Interest Period" shall mean any continuous period of thirty
(30), sixty (60), ninety (90) or one hundred eighty (180) days, as selected from
time to time by Borrower by irrevocable notice (in writing, by telex, telegram
or cable) given to Lender not less than three (3) Business Days prior to the
first day of each respective Interest Period; provided that: (A) each such
period occurring after such initial period shall commence on the day on which
the immediately preceding period expires; (B) the final Interest Period shall be
such that its expiration occurs on or before the end of the Original Term or any
Renewal Term; and (C) if for
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any reason Borrower shall fail to timely select a period, then such Loans shall
continue as, or revert to, Prime Rate Loans.
"LaSalle Bank" shall mean LaSalle Bank National Association,
Chicago, Illinois.
"Letter of Credit" shall mean any Letter of Credit issued on
behalf of Borrower in accordance with this Agreement.
"Letter of Credit Obligations" shall mean, as of any date of
determination, the sum of (i) aggregate undrawn face amount of all Letters of
Credit, and (ii) the aggregate unreimbursed amount of all drawn Letters of
Credit not already converted to Loans hereunder.
"Liabilities" shall mean any and all obligations, liabilities
and indebtedness of Borrower to Lender or to any parent, affiliate or subsidiary
of Lender of any and every kind and nature, howsoever created, arising or
evidenced and howsoever owned, held or acquired, whether now or hereafter
existing, whether now due or to become due, whether primary, secondary, direct,
indirect, absolute, contingent or otherwise (including, without limitation,
obligations of performance), whether several, joint or joint and several, and
whether arising or existing under written or oral agreement or by operation of
law.
"LIBOR Rate" shall mean, with respect to any LIBOR Rate Loan
for any Interest Period, a rate per annum equal to the offered rate for deposits
in United States dollars for a period equal to such Interest Period as it
appears on Telerate page 3750 as of 11:00 a.m. (London time) two Business Days
prior to the first day of such Interest Period. "Telerate page 3750" means the
display designated as "Page 3750" on the Telerate Service (or such other page as
may replace page 3750 of that service or such other service) as may be nominated
by the British Bankers' Association as the vendor for the purpose of displaying
British Bankers' Association interest settlement rates for United States dollar
deposits).
"LIBOR Rate Loans" shall mean the Loans bearing interest with
reference to the LIBOR Rate.
"Loans" shall mean all loans and advances made by Lender to or
on behalf of Borrower hereunder.
"Lock Box" and "Lock Box Account" shall have the meanings
specified in subsection 8(a) hereof.
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"Marion, Alabama Real Property" shall mean that certain Real
Property owned by Niemand in Marion, Alabama, which Real Property is more fully
described on Schedule 11(v) hereto.
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"Material Adverse Effect" shall mean a material adverse effect
on the business, property, assets, prospects, operations or condition, financial
or otherwise, of a Person.
"Maximum Loan Limit" shall mean Twenty-Seven Million, Five
Hundred Fifty-Three Thousand and No/100 Dollars ($27,553,000).
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"Maximum Revolving Loan Limit" shall have the meaning
specified in subsection 2(a) hereof.
"Mt. Gilead, North Carolina Real Property" shall mean that
certain Real Property owned by Standard in Mt. Gilead, North Carolina, which
Real Property is more fully described on Schedule 11(v) hereto.
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"Obligor" shall mean Borrower and each other Person who is or
shall become primarily or secondarily liable for any of the Liabilities.
"Original Term" shall have the meaning specified in Section
10 hereof.
"Other Agreements" shall mean all agreements, instruments and
documents, other than this Agreement, including, without limitation, guaranties,
mortgages, trust deeds, pledges, powers of attorney, consents, assignments,
contracts, notices, security agreements, leases, financing statements and all
other writings heretofore, now or from time to time hereafter executed by or on
behalf of Borrower or any other Person and delivered to Lender or to any parent,
affiliate or subsidiary of Lender in connection with the Liabilities or the
transactions contemplated hereby, as each of the same may be amended, modified
or supplemented from time to time.
"Parent" shall mean any Person now or at any time or times
hereafter owning or controlling (alone or with any other Person) at least a
majority of the issued and outstanding equity of Borrower and, if Borrower is a
partnership, the general partner of Borrower.
"PBGC" shall have the meaning specified in subsection 12(b)(v)
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hereof.
"Permitted Liens" shall mean (i) statutory liens of
landlords, carriers, warehousemen, processors, mechanics, materialmen or
suppliers incurred in the ordinary course of business and securing amounts not
yet due or declared to be due by the claimant thereunder; (ii) liens or
security interests in favor of Lender; (iii) zoning restrictions and easements,
licenses, covenants and other restrictions affecting the use of real property
that do not individually or in the aggregate have a material adverse effect on
Borrower's ability to use such real property for its intended purpose in
connection with Borrower's business; (iv) liens in connection with purchase
money indebtedness and capitalized leases otherwise permitted pursuant to the
Agreement, provided, that such liens attach only to the assets the purchase of
which was financed by such purchase money indebtedness or which is the subject
of such capitalized leases; and (v) liens specifically permitted by Lender in
writing.
"Person" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, limited liability company, institution, entity, party or foreign
or United States government (whether federal, state, county, city, municipal or
otherwise), including, without limitation, any instrumentality, division,
agency, body or department thereof.
"Plan" shall have the meaning specified in subsection 12(b)(v)
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hereof.
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"Prime Rate" shall mean LaSalle Bank's publicly announced
prime rate (which is not intended to be LaSalle Bank's lowest or most favorable
rate in effect at any time) in effect from time to time.
"Prime Rate Loans" shall mean the Loans bearing interest with
reference to the Prime Rate.
"Raw Materials" shall mean rolled and sheet paper stock,
corrugated sheets, film, ink, glues and adhesives, coatings and solvents, window
film, flexible header strips, flexible finishing components (including hooks,
grommets, wickets, washers, zip lock and tape), to the extent the foregoing are
component parts of Finished Goods held by Borrower for the purpose of production
of Finished Goods, and corrugated cases, shipping items and pallets used in the
shipping of Finished Goods to customers.
"Real Property" shall mean the Ft. Xxxxx Indiana Real
Property, Hastings, Nebraska Real Property, Marion, Alabama Real Property and
the Mt. Gilead, North Carolina Real Property collectively.
"Real Property Mortgages" shall mean collectively, the
mortgages, deeds of trust and trust deeds (as applicable) against the Real
Property given by Borrower (or any of them) to Lender as security for Borrowers
obligation s hereunder.
"Renewal Term" shall have the meaning specified in Section 10
----------
hereof.
"Revolving Loan Limit" shall have the meaning specified in
subsection 2(a) hereof.
"Revolving Loans" shall have the meaning specified in
subsection 2(a) hereof.
---------------
"Revolving Note" shall mean that certain Revolving Note dated
as of the date hereof, executed and delivered by Borrower to the order of Lender
in the original principal amount of Twelve Million and No/100 Dollars
($12,000,000).
"Special Advance Loan" shall have the meaning specified in
subsection 2(c) hereof.
---------------
"Special Advance Note" shall mean that certain Special Advance
Note dated as of the date hereof, executed and delivered by Borrower to the
order of Lender in the original principal amount of Four Million and 00/100
Dollars ($4,000,000).
"Subsidiary" shall mean any corporation of which more than
fifty percent (50%) of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time stock of any other class of such
corporation shall have or might have voting power by reason of the happening of
any contingency) is at the time, directly or indirectly, owned by Borrower, or
any partnership, joint venture or limited liability company of which more than
fifty percent (50%) of the outstanding
-9-
equity interests are at the time, directly or indirectly, owned by Borrower or
any partnership of which Borrower is a general partner.
"Tangible Net Worth" shall have the meaning specified in
subsection 14(a) hereof.
"Tax" shall mean, in relation to any LIBOR Rate Loans and the
applicable LIBOR Rate, any tax, levy, impost, duty, deduction, withholding or
charges of whatever nature required to be paid by Lender and/or to be withheld
or deducted from any payment otherwise required hereby to be made by Borrower to
Lender; provided, that the term "Tax" shall not include any taxes imposed upon
the net income of Lender.
"Term Loan" shall mean the Loan described in Section 2(b)
hereof.
"Term Note" shall mean that certain Term Note dated as of the
date hereof, executed and delivered by Borrower to the order of Lender in the
original principal amount of Eleven Million, Five Hundred Fifty-Three Thousand
and No/100 Dollars ($11,553,000).
"Work In Process" shall mean printed sheets and cut boxes
which have not yet been glued, which, when glued will become Finished Goods, and
printed film and bags which, when completed, will become Finished Goods.
2. LOANS.
------
(a) Revolving Loans.
---------------
Subject to the terms and conditions of this Agreement and the
Other Agreements, during the Original Term and any Renewal Term, Lender may, in
its sole but reasonable discretion, make revolving loans and advances (the
"Revolving Loans") in an amount up to the sum of the following sublimits (the
"Revolving Loan Limit"):
(i) Up to eighty-five percent (85%) of the face
amount (less discounts, credits and allowances taken by or granted to
Account Debtors in connection therewith in the ordinary course of
Borrower's business) of Borrower's Eligible Accounts; plus
(ii) The sum of the following not to exceed an
aggregate of Five Million, Five Hundred Thousand and No/100 Dollars
($5,500,000):
(A) Up to seventy percent (70%) of the lower
of cost or market value of Borrower's Eligible Inventory
consisting of Raw Materials; plus
(B) Up to sixty percent (60%) of the lower
of cost or market value of Borrower's Eligible Inventory
consisting of Finished Goods; plus
(C) Up to thirty-five percent (35%) of the
lower of cost or market value of Borrower's Eligible Inventory
consisting of Work In Process;
minus
-----
-10-
(iii) such reserves as Lender elects, in its
sole but reasonable discretion to establish from time to time;
provided, that the Revolving Loan Limit shall in no event exceed Twelve Million
and No/100 Dollars ($12,000,000.00) (the "Maximum Revolving Loan Limit") except
as such amount may be increased or decreased by Lender, in its sole but
reasonable discretion.
The aggregate unpaid principal balance of the Revolving Loans
shall not at any time exceed the lesser of the (i) Revolving Loan Limit minus
the Letter of Credit Obligations and (ii) the Maximum Revolving Loan Limit minus
the Letter of Credit Obligations. If at any time the outstanding Revolving Loans
exceeds either the Revolving Loan Limit or the Maximum Revolving Loan Limit, in
each case minus the Letter of Credit Obligations, or any portion of the
Revolving Loans and Letter of Credit Obligations exceeds any applicable sublimit
within the Revolving Loan Limit, Borrower shall immediately, and without the
necessity of demand by Lender, pay to Lender such amount as may be necessary to
eliminate such excess and Lender shall apply such payment to the Revolving Loans
in such order as Lender shall determine in its sole discretion.
Borrower hereby authorizes Lender, in its sole discretion, to
charge any of Borrower's accounts or advance Revolving Loans to make any
payments of principal, interest, fees, costs or expenses required to be made
under this Agreement or the Other Agreements. All Revolving Loans shall, in
Lender's sole discretion, be evidenced by one or more promissory notes in form
and substance satisfactory to Lender, including, but not necessarily limited to,
the Revolving Note. However, if such Revolving Loans are not so evidenced, such
Revolving Loans may be evidenced solely by entries upon the books and records
maintained by Lender.
A request for a Revolving Loan shall be made or shall be
deemed to be made, each in the following manner: Borrower shall give Lender same
day notice, no later than 12:00 Noon (Chicago time) for such day, of its request
for a Revolving Loan as a Prime Rate Loan, and at least three (3) Business Days
prior notice of its request for a Revolving Loan as a LIBOR Rate Loan, in which
notice Borrower shall specify the amount of the proposed borrowing and the
proposed borrowing date; provided, however, that no such request may be made at
a time when there exists an Event of Default or an event which, with the passage
of time or giving of notice, will become an Event of Default. In the event that
Borrower maintains a control disbursement account at LaSalle Bank, each check
presented for payment against such control disbursement account and any other
charge or request for payment against such control disbursement account shall
constitute a request for a Revolving Loan as a Prime Rate Loan. As an
accommodation to Borrower, Lender may permit telephone requests for Revolving
Loans and electronic transmittal of instructions, authorizations, agreements or
reports to Lender by Borrower. Unless Borrower specifically directs Lender in
writing not to accept or act upon telephonic or electronic communications from
Borrower, Lender shall have no liability to Borrower for any loss or damage
suffered by Borrower as a result of Lender's honoring of any requests, execution
of any instructions, authorizations or agreements or reliance on any reports
communicated to it telephonically or electronically and purporting to have been
sent to Lender by Borrower and Lender shall have no duty to verify the origin of
any such communication or the authority of the Person sending it.
-11-
Borrower hereby irrevocably authorizes Lender to disburse the
proceeds of each Revolving Loan requested by Borrower, or deemed to be requested
by Borrower, as follows: the proceeds of each Revolving Loan requested under
Section 2(a) shall be disbursed by Lender in lawful money of the United States
------------
of America in immediately available funds, in the case of the initial borrowing,
in accordance with the terms of the written disbursement letter from Borrower,
and in the case of each subsequent borrowing, by wire transfer or Automated
Clearing House (ACH) transfer to such bank account as may be agreed upon by
Borrower and Lender from time to time, or elsewhere if pursuant to a written
direction from Borrower.
(b) Term Loan.
---------
Subject to the terms and conditions of this Agreement and the
Other Agreements, on the date that the conditions to the initial Loans are
satisfied, Lender shall make a term loan to Borrower in the amount of Eleven
Million, Five Hundred Fifty-three Thousand and No/100 Dollars ($11,553,000.00)
(the "Term Loan"), which Term Loan will be evidenced by the Term Note as a
precondition to funding.
(c) The Special Advance Loan.
------------------------
Subject to the terms and conditions of this Agreement and the
Other Agreements, on the date that the conditions to the initial Loans are
satisfied, Lender shall make a term loan to Borrower in the amount of Four
Million and No/100 Dollars ($4,000,000.00) ("Special Advance Loan"), which
Special Advance Loan will be evidenced by the Special Advance Note as a
precondition to funding.
(d) Repayments.
----------
All Liabilities shall be repaid by Borrower as follows:
(i) Repayment of Revolving Loans. Excepting the
----------------------------
Term Loan and Special Advance Loan which shall be repaid in accordance
with Section 2(d)(ii) and (iii) below, the principal amount of the
--------------------------
Revolving Loans together with all other Liabilities shall be repaid on
the last day of the Original Term or any Renewal Term if this Agreement
is renewed pursuant to Section 10 hereof.
----------
(ii) Repayment of the Term Loan. Principal on the
--------------------------
Term Loan shall be repaid in equal monthly installments based on an
eighty-four (84) month amortization schedule commencing January __,
2002, which amortization schedule combines the original principal
balance of the Special Advance Loan and the Term Loan, and which
amortization schedule will be recalculated (for purposes of crediting
any Excess Cash Flow Payments, or other prepayments, made in respect of
the Special Advance Loan) upon the payment in full of the Special
Advance Loan. Principal payments on the Term Loan will commence on the
first day of the calendar month immediately following the date the
Special Advance Loan (and all accrued interest, fees and expenses
thereon or in connection therewith) is paid in full and on the first
day of each month thereafter; provided, that any remaining outstanding
principal balance of the Term Loan shall be repaid at the end of the
Original Term or any Renewal Term if this Agreement is renewed
-12-
pursuant to Section 10 hereof. If any such payment due date is not a
----------
Business Day, then such payment may be made on the next succeeding
Business Day and such extension of time shall be included in the
computation of the amount of interest and fees due hereunder.
(iii) Repayment of Special Advance Loan. Principal on
---------------------------------
the Special Advance Loan shall be repaid in equal monthly installments
of One Hundred Eighty-Five Thousand, One Hundred Fifty-Four and 76/100
Dollars ($185,154.76) payable commencing January 1, 2002, and on the
first day of each month thereafter until paid in full; provided, that
any remaining outstanding principal balance of the Special Advance Loan
shall be repaid at the end of the Original Term or any Renewal Term if
this Agreement is renewed pursuant to Section 10 hereof. If any such
----------
payment due date is not a Business Day, then such payment may be made
on the next succeeding Business Day and such extension of time shall be
included in the computation of the amount of interest and fees due
hereunder. In addition to the monthly payments described above,
Borrower further agrees to pay to Lender, Excess Cash Flow Payments as
set forth in paragraph (2)(d)(iv)(B) below as a prepayment of the
-----------------------
principal amount of the Special Advance Loan. Lender and Borrower
hereby acknowledge and agree that Lender's receipt of any Excess Cash
Flow Payments will not reduce the amount of any regular monthly
principal payments described above and that all Excess Cash Flow
Payments will be applied against outstanding principal in inverse order
of maturity. Notwithstanding anything hereinabove to the contrary, the
entire unpaid principal balance of the Special Advance Loan, and any
accrued and unpaid interest thereon, will be immediately due and
payable upon the last day of the Original Term or any Renewal Term if
this Agreement is renewed pursuant to Section 10 hereof
----------
(iv) Mandatory Prepayments of the Term Loan and
------------------------------------------
the Special Advance Loan.
------------------------
(A) Payments Upon Disposition of Assets.
-----------------------------------
Upon receipt of the proceeds of the sale or other disposition
of any Equipment or real property of Borrower which is subject
to a mortgage in favor of Lender (excluding the first $25,000
of proceeds in each Fiscal Year), or if any of the Equipment
or real property subject to such mortgage is damaged,
destroyed or taken by condemnation in whole or in part, the
proceeds thereof (including without limitation, insurance
proceeds) shall be paid by Borrower to Lender as a mandatory
prepayment of the Special Advance Loan or Term Loan, such
payment to be applied against the remaining installments of
principal in the inverse order of their maturities until the
Special Advance Loan is repaid in full, and then against the
remaining Term Loan, in the inverse order of their maturities
until repaid in full, and then against the other Liabilities,
as determined by Lender, in its sole discretion; provided,
---------
however, Lender will permit Borrower access to the first
-------
$100,000 of proceeds of casualty insurance from the loss,
damage or destruction of any Equipment or real property (such
$100,000 to be an annual limit during each Fiscal Year during
the term hereof) (1) at any time during the term hereof to be
used for purposes of repairing or replacing such lost, damaged
-13-
or destroyed Equipment or real property; and (2) from and
after the date upon which the Special Advance Loan is
indefeasibly repaid in full for any other purposes otherwise
permitted in this Agreement.
(B) Excess Cash Flow. Ten (10) days after
----------------
receipt of Borrower's Fiscal Year end audited financial
statements for each Fiscal Year of Borrower commencing with
Borrower's Fiscal Year ended June 29, 2002 Borrower shall make
a mandatory prepayment of the Special Advance Loan in an
amount equal to fifty percent (50%) of Borrower's Excess Cash
Flow (as described below) for the Fiscal Year just ended, such
prepayment to be applied against the remaining installments of
principal in the inverse order of their maturities, such
mandatory prepayments to continue until the date on which the
Special Advance Loan shall be repaid in full (such payments
referred to herein as, "Excess Cash Flow Payments"). From and
after the date the Special Advance Loan (and all accrued
interest, fees and expenses thereon or in connection
therewith) is paid in full, Borrower will have no obligation
to make any Excess Cash Flow Payments.
3. LETTERS OF CREDIT.
-----------------
(a) General Terms.
-------------
Subject to the terms and conditions of the Agreement and the
Other Agreements, during the Original Term or any Renewal Term, Lender may, in
its sole but reasonable discretion, from time to time cause to be issued and
co-sign for or otherwise guarantee, upon Borrower's request, commercial and/or
standby Letters of Credit; provided, that the aggregate undrawn face amount of
all such Letters of Credit shall at no time exceed Two Million and No/100
Dollars ($2,000,000.00). Payments made by Lender to any Person on account of any
Letter of Credit shall constitute Loans hereunder and Borrower agrees that each
payment made by the issuer of a Letter of Credit in respect of a Letter of
Credit shall constitute a request by Borrower for a Loan to reimburse such
issuer. Borrower shall remit to Lender a Letter of Credit fee equal to two
percent (2.0%) per annum on the aggregate undrawn face amount of all Letters of
Credit outstanding, which fee shall be payable monthly in arrears on the last
Business Day of each month. Borrower shall also pay on demand the normal and
customary administrative charges of the issuer of the Letter of Credit for
issuance, amendment, negotiation, renewal or extension of any Letter of Credit.
(b) Requests for Letters of Credit.
------------------------------
Borrower shall make requests for Letters of Credit in writing
at least three (3) Business Days prior to the date such Letter of Credit is to
be issued. Each such request shall specify the date such Letter of Credit is to
be issued, the amount thereof, the name and address of the beneficiary thereof
and a description of the transaction to be supported thereby. Any such notice
shall be accompanied by the form of Letter of Credit requested and any
application or reimbursement agreement required by the issuer of such Letter of
Credit. If any term of such
-14-
application or reimbursement agreement is inconsistent with this Agreement,
then the provisions of this Agreement shall control to the extent of such
inconsistency.
(c) Obligations Absolute.
--------------------
Borrower shall be obligated to reimburse the issuer of any
Letter of Credit, or Lender if Lender has reimbursed such issuer on Borrower's
behalf, for any payments made in respect of any Letter of Credit, which
obligation shall be unconditional and irrevocable and shall be paid regardless
of: (i) any lack of validity or enforceability of any Letter of Credit, (ii) any
amendment or waiver of or consent or departure from all or any provisions of any
Letter of Credit, this Agreement or any Other Agreement, (iii) the existence of
any claim, set off, defense or other right which Borrower or any other Person
may have against any beneficiary of any Letter of Credit, Lender or the issuer
of the Letter of Credit, (iv) any draft or other document presented under any
Letter of Credit proving to be forged, fraudulent, invalid, or insufficient in
any respect or any statement therein being untrue or inaccurate in any respect,
(v) any payment under any Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit, and
(vi) any other act or omission to act or delay of any kind of the issuer of such
Letter of Credit, the Lender or any other Person or any other event or
circumstance that might otherwise constitute a legal or equitable discharge of
Borrower's obligations hereunder. It is understood and agreed by Borrower that
the issuer of any Letter of Credit may accept documents that appear on their
face to be in order without further investigation or inquiry, regardless of any
notice or information to the contrary.
(d) Expiration Dates of Letters of Credit.
-------------------------------------
The expiration date of each Letter of Credit shall be no later
than the earlier of (i) one (1) year from the date of issuance and (ii) the
thirtieth (30th) day prior to the end of the Original Term or any Renewal Term.
Notwithstanding the foregoing, a Letter of Credit may provide for automatic
extensions of its expiration date for one or more one (1) year periods, so long
as the issuer thereof has the right to terminate the Letter of Credit at the end
of each one (1) year period and no extension period extends past the thirtieth
(30th) day prior to the end of the Original Term or any Renewal Term.
4. INTEREST, FEES AND CHARGES.
--------------------------
(a) Rates of Interest.
-----------------
Interest accrued on all Loans will be due on the earliest of:
(i) the first day of each month (for the immediately preceding month), computed
through the last calendar day of the preceding month, and also, only in the case
of a LIBOR Rate Loan, in addition to monthly, at the end of the Interest Period
applicable thereto; (ii) the occurrence of an Event of Default in consequence of
which Lender elects to accelerate the maturity and payment of the Liabilities;
or (iii) termination of this agreement pursuant to paragraph 10 hereof. Interest
------------
will accrue on: (A) the unpaid principal amount of the Revolving Loans made to
Borrower outstanding at the end of each day at (x) a fluctuating rate per annum
equal to the Prime Rate plus one-half of one percent (0.5%) or (y) a fixed rate
----
per annum equal to two and three-quarters of one percent (2.75%)
-15-
above the LIBOR Rate; (B) the unpaid principal balance of the Term Loan made to
Borrower outstanding at the end of each day at (x) a fluctuating rate per annum
equal to the Prime Rate plus three-quarters of one percent (0.75%) or (y) a
----
fixed rate per annum equal to three percent (3.00%) above the LIBOR Rate; and
(C) the unpaid principal balance of the Special Advance Loan made to Borrower
outstanding at the end of each day at (x) a fluctuating rate per annum equal to
the Prime Rate plus one percent (1.00%) or (y) a fixed rate per annum equal to
----
three and one-quarter of one percent (3.25%) above the LIBOR Rate. The rate of
interest payable on Prime Rate Loans will increase or decrease by an amount
equal to any increase or decrease in the Prime Rate, effective as of the
opening of business on the day that any such change in the Prime Rate occurs.
Upon and after the occurrence of an Event of Default, and during the
continuation thereof, the principal amount of all Loans will bear interest on
demand at a rate per annum equal to the rate of interest then in effect under
this paragraph plus two percent (2%).
(b) Other LIBOR Provisions.
----------------------
(i) Subject to the provisions of this Agreement,
Borrower shall have the option (A) as of any date, to convert all or
any part of the Prime Rate Loans to, or request that new Loans be made
as, LIBOR Rate Loans of various Interest Periods, (B) as of the last
day of any Interest Period, to continue all or any portion of the
relevant LIBOR Rate Loans as LIBOR Rate Loans; (C) as of the last day
of any Interest Period, to convert all or any portion of the LIBOR Rate
Loans to Prime Rate Loans; and (D) at any time, to request new Loans as
Prime Rate Loans; provided, that Loans may not be continued as or
converted to LIBOR Rate Loans, if the continuation or conversion
thereof would violate the provisions of subsections 4(b)(ii) or
--------------------
4(b)(iii) of this Agreement or if an Event of Default has occurred.
---------
(ii) Lender's determination of LIBOR as provided
above shall be conclusive, absent manifest error. Furthermore, if
Lender determines, in good faith (which determination shall be
conclusive, absent manifest error), prior to the commencement of any
Interest Period that (A) U.S. Dollar deposits of sufficient amount and
maturity for funding the Loans are not available to Lender in the
London Interbank Eurodollar market in the ordinary course of business,
or (B) by reason of circumstances affecting the London Interbank
Eurodollar market, adequate and fair means do not exist for
ascertaining the rate of interest to be applicable to the Loans
requested by Borrower to be LIBOR Rate Loans or the LIBOR Rate Loans
shall not represent the effective pricing to Lender for U.S. Dollar
deposits of a comparable amount for the relevant period (such as for
example, but not limited to, official reserve requirements required by
Regulation D to the extent not given effect in determining the rate),
Lender shall promptly notify Borrower and (1) all existing LIBOR Rate
Loans shall convert to Prime Rate Loans upon the end of the applicable
Interest Period, and (2) no additional LIBOR Rate Loans shall be made
until such circumstances are cured.
(iii) If, after the date hereof, the introduction
of, or any change in any applicable law, treaty, rule, regulation or
guideline or in the interpretation or administration thereof by any
governmental authority or any central bank or other fiscal, monetary or
other authority having jurisdiction over Lender or its lending offices
(a
-16-
"Regulatory Change"), shall, in the opinion of counsel to Lender,
make it unlawful for Lender to make or maintain LIBOR Rate Loans, then
Lender shall promptly notify Borrower and (A) the LIBOR Rate Loans
shall immediately convert to Prime Rate Loans on the last Business Day
of the then existing Interest Period or on such earlier date as
required by law and (B) no additional LIBOR Rate Loans shall be made
until such circumstance is cured.
(iv) If, for any reason, a LIBOR Rate Loan is paid
prior to the last Business Day of any Interest Period or if a LIBOR
Rate Loan does not occur on a date specified by Borrower in its request
(other than as a result of a default by Lender), Borrower agrees to
indemnify Lender against any loss (including any loss on redeployment
of the deposits or other funds acquired by Lender to fund or maintain
such LIBOR Rate Loan) cost or expense incurred by Lender as a result of
such prepayment.
(v) If any Regulatory Change (whether or not
having the force of law) shall (A) impose, modify or deem applicable
any assessment, reserve, special deposit or similar requirement against
assets held by, or deposits in or for the account of or loans by, or
any other acquisition of funds or disbursements by, Lender; (B) subject
Lender or the LIBOR Rate Loans to any Tax or change the basis of
taxation of payments to Lender of principal or interest due from
Borrower to Lender hereunder (other than a change in the taxation of
the overall net income of Lender); or (C) impose on Lender any other
condition regarding the LIBOR Rate Loans or Lender's funding thereof,
and Lender shall determine (which determination shall be conclusive,
absent any manifest error) that the result of the foregoing is to
increase the cost to Lender of making or maintaining the LIBOR Rate
Loans or to reduce the amount of principal or interest received by
Lender hereunder, then Borrower shall pay to Lender, on demand, such
additional amounts as Lender shall, from time to time, determine are
sufficient to compensate and indemnify Lender from such increased cost
or reduced amount.
(vi) Lender shall receive payments of amounts of
principal of and interest with respect to the LIBOR Rate Loans free and
clear of, and without deduction for, any Taxes. If (A) Lender shall be
subject to any Tax in respect of any LIBOR Rate Loans or any part
thereof or, (B) Borrower shall be required to withhold or deduct any
Tax from any such amount, the LIBOR Rate applicable to such LIBOR Rate
Loans shall be adjusted by Lender to reflect all additional costs
incurred by Lender in connection with the payment by Lender or the
withholding by Borrower of such Tax and Borrower shall provide Lender
with a statement detailing the amount of any such Tax actually paid by
Borrower. Determination by Lender of the amount of such costs shall be
conclusive, absent manifest error. If after any such adjustment any
part of any Tax paid by Lender is subsequently recovered by Lender,
Lender shall reimburse Borrower to the extent of the amount so
recovered. A certificate of an officer of Lender setting forth the
amount of such recovery and the basis therefor shall be conclusive,
absent manifest error.
(vii) Each request for LIBOR Rate Loans shall be in
an amount not less than Five Hundred Thousand and No/100 Dollars
($500,000), and in integral multiples of One Hundred Thousand and
No/100 Dollars ($100,000).
-17-
(viii) Unless otherwise specified by Borrower, all
Loans shall be Prime Rate Loans.
(ix) No more than three (3) Interest Periods may be
in effect with respect to outstanding LIBOR Rate Loans at any one time.
(c) Fees And Charges.
----------------
(i) Closing Fee: Borrower shall pay to Lender a
-----------
closing fee equal to one-half of one percent (0.50%) of the amount by
which the Maximum Loan Limit exceeds Lender's current commitment level
for this Borrower as a participant in Borrower's credit facility in
place immediately preceding the effectiveness of this Agreement, which
fee shall be fully earned and payable on the date of disbursement of
the initial Loans hereunder and payable in equal installments on the
date hereof and on the date six (6) months thereafter.
(ii) Unused Line Fee: Borrower shall pay to Lender
---------------
an unused line fee of one-half of one percent (0.5%) of the difference
between the Maximum Revolving Loan Limit and the average daily balance
of the Revolving Loans plus the Letter of Credit Obligations for each
month, which fee shall be fully earned by Lender and payable monthly in
arrears on the first Business Day of each month. Said fee shall be
calculated on the basis of a 360 day year.
(iii) Costs and Expenses: Borrower shall reimburse
------------------
Lender for all costs and expenses, including, without limitation, legal
expenses and reasonable attorneys' fees, incurred by Lender in
connection with the (i) documentation and consummation of this
transaction and any other transactions between Borrower and Lender,
including, without limitation, Uniform Commercial Code and other public
record searches and filings, overnight courier or other express or
messenger delivery, appraisal costs, surveys, title insurance and
environmental audit or review costs; (ii) collection, protection or
enforcement of any rights in or to the Collateral; (iii) collection of
any Liabilities; and (iv) administration and enforcement of any of
Lender's rights under this Agreement. Borrower shall also pay all
normal service charges with respect to all accounts maintained by
Borrower with Lender and LaSalle Bank and any additional services
requested by Borrower from Lender and LaSalle Bank. All such costs,
expenses and charges shall, if owed to LaSalle Bank, be reimbursed by
Lender and in such event or in the event such costs and expenses are
owed to Lender, constitute Liabilities hereunder, shall be payable by
Borrower to Lender on demand, and, until paid, shall bear interest at
the highest rate then applicable to Loans hereunder.
(iv) Capital Adequacy Charge. If Lender shall have
-----------------------
determined that the adoption of any law, rule or regulation regarding
capital adequacy, or any change therein or in the interpretation or
application thereof, or compliance by Lender with any request or
directive regarding capital adequacy (whether or not having the force
of law) from any central bank or governmental authority enacted after
the date hereof, does or shall have the effect of reducing the rate of
return on such party's capital as a consequence
-18-
of its obligations hereunder to a level below that which Lender could
have achieved but for such adoption, change or compliance (taking into
consideration Lender's policies with respect to capital adequacy) by a
material amount, then from time to time, after submission by Lender to
Borrower of a written demand therefor ("Capital Adequacy Demand")
together with the certificate described below, Borrower shall pay to
Lender such additional amount or amounts ("Capital Adequacy Charge") as
will compensate Lender for such reduction, such Capital Adequacy Demand
to be made with reasonable promptness following such determination. A
certificate of Lender claiming entitlement to payment as set forth
above shall be conclusive in the absence of manifest error. Such
certificate shall set forth the nature of the occurrence giving rise to
such reduction, the amount of the Capital Adequacy Charge to be paid to
Lender, and the method by which such amount was determined. In
determining such amount, Lender may use any reasonable averaging and
attribution method, applied on a non-discriminatory basis.
(v) Examination and Appraisal Fees. In addition to
------------------------------
the costs and expenses described herein, Borrower will pay to Lender
its prevailing per person, per diem examination fee (which per person,
per diem is $750 as of the date hereof) (the "Examination Fee") for
each examination performed by or at Lender's direction of Borrower's
books and records and Collateral and such other matters as Lender will
deem appropriate in its commercially reasonable judgment, together with
all actual out-of pocket expenses incurred in connection therewith,
each such fee to be paid upon the completion of each such examination.
Provided that no Event of Default has occurred, the annual aggregate
Examination Fees charged to Borrower hereunder will not exceed the
result of the following formula ("Examination Fee Formula"):
(then-current per diem examination fee) x (15 examination days
per operating location per year) x (number of locations
examined) + (all actual out of pocket expenses incurred in
connection with all examinations)
Notwithstanding the foregoing, (i) the Lender's per diem
examination fee may be adjusted from time-to-time in the reasonable discretion
of the Lender; (ii) nothing contained herein shall be construed as limiting the
Borrower's obligation to pay all of Lenders actual out-of-pocket expenses
incurred in connection with any and all examinations (whether or not such
examinations exceed 15 examination days per year, and regardless of the number
of locations examined); and (iii) from and after the occurrence of an Event of
Default (and whether or not such Event of Default is continuing), the
Examination Fee Formula will immediately cease to be effective without notice to
Borrower, and Borrower will be required to pay to Lender any and all Examination
Fees and expense reimbursements as provided in the first sentence of this
paragraph 4(c)(v) above without regard to the limitations provided by the
-----------------
Examination Fee Formula.
(d) Maximum Interest.
----------------
It is the intent of the parties that the rate of interest and
other charges to Borrower under this Agreement shall be lawful; therefore, if
for any reason the interest or other charges
-19-
payable under this Agreement are found by a court of competent jurisdiction, in
a final determination, to exceed the limit which Lender may lawfully charge
Borrower, then the obligation to pay interest and other charges shall
automatically be reduced to such limit and, if any amount in excess of such
limit shall have been paid, then such amount shall be refunded to Borrower.
5. COLLATERAL.
----------
(a) Grant of Security Interest to Lender.
------------------------------------
As security for the payment of all Loans now or in the future
made by Lender to Borrower hereunder and for the payment or other satisfaction
of all other Liabilities, Borrower hereby assigns to Lender and grants to Lender
a continuing security interest in all of the assets of the Borrower, real or
personal, tangible or intangible, now or hereafter owned, existing, acquired or
arising and wherever now or hereafter located, including without limitation, the
following property of Borrower, whether now or hereafter owned, existing,
acquired or arising and wherever now or hereafter located: (a) all Accounts
(whether or not Eligible Accounts) and all Goods whose sale, lease or other
disposition by Borrower has given rise to Accounts and have been returned to, or
repossessed or stopped in transit by, Borrower; (b) all Chattel Paper,
Instruments, Documents and General Intangibles (including, without limitation,
all patents, patent applications, trademarks, trademark applications,
tradenames, trade secrets, goodwill, copyrights, copyright applications,
registrations, licenses, software, franchises, customer lists, tax refund
claims, claims against carriers and shippers, guarantee claims, contracts
rights, payment intangibles, security interests, security deposits and rights to
indemnification); (c) all Inventory (whether or not Eligible Inventory); (d) all
Goods (other than Inventory), including, without limitation, Equipment, vehicles
and Fixtures; (e) all Investment Property; (f) all Deposit Accounts, bank
accounts, deposits and cash; (g) all Letter-of-Credit Rights; (h) Commercial
Tort Claims listed on Exhibit C hereto; (i) the Real Property; (j) any other
---------
property of Borrower now or hereafter in the possession, custody or control of
Lender or any agent or any parent, affiliate or subsidiary of Lender or any
participant with Lender in the Loans, for any purpose (whether for safekeeping,
deposit, collection, custody, pledge, transmission or otherwise) and (k) all
additions and accessions to, substitutions for, and replacements, products and
Proceeds of the foregoing property, including, without limitation, proceeds of
all insurance policies insuring the foregoing property, and all of Borrower's
books and records relating to any of the foregoing and to Borrower's business.
(b) Other Security.
--------------
Lender, in its sole discretion, without waiving or releasing
any obligation, liability or duty of Borrower under this Agreement or the Other
Agreements or any Event of Default, may at any time or times hereafter, but
shall not be obligated to, pay, acquire or accept an assignment of any security
interest, lien, encumbrance or claim asserted by any Person in, upon or against
the Collateral. All sums paid by Lender in respect thereof and all costs, fees
and expenses including, without limitation, reasonable attorney fees, all court
costs and all other charges relating thereto incurred by Lender shall constitute
Liabilities, payable by Borrower to Lender on demand and, until paid, shall bear
interest at the highest rate then applicable to Loans hereunder.
-20-
(c) Possessory Collateral.
---------------------
Immediately upon Borrower's receipt of any portion of the
Collateral evidenced by an agreement, Instrument or Document, including, without
limitation, any Tangible Chattel Paper and any Investment Property consisting of
certificated securities, Borrower shall deliver the original thereof to Lender
together with an appropriate endorsement or other specific evidence of
assignment thereof to Lender (in form and substance acceptable to Lender). If an
endorsement or assignment of any such items shall not be made for any reason,
Lender is hereby irrevocably authorized, as Borrower's attorney and
agent-in-fact, to endorse or assign the same on Borrower's behalf.
(d) Electronic Chattel Paper.
------------------------
To the extent that Borrower obtains or maintains any
Electronic Chattel Paper, Borrower shall create, store and assign the record or
records comprising the Electronic Chattel Paper in such a manner that (i) a
single authoritative copy of the record or records exists which is unique,
identifiable and except as otherwise provided in clauses (iv), (v) and (vi)
below, unalterable, (ii) the authoritative copy identifies Lender as the
assignee of the record or records, (iii) the authoritative copy is communicated
to and maintained by the Lender or its designated custodian, (iv) copies or
revisions that add or change an identified assignee of the authoritative copy
can only be made with the participation of Lender, (v) each copy of the
authoritative copy and any copy of a copy is readily identifiable as a copy that
is not the authoritative copy and (vi) any revision of the authoritative copy is
readily identifiable as an authorized or unauthorized revision.
6. PRESERVATION OF COLLATERAL AND PERFECTION OF
--------------------------------------------
SECURITY INTERESTS THEREIN.
--------------------------
Borrower shall, at Lender's request, at any time and from time to time,
authenticate, execute and deliver to Lender such financing statements, documents
and other agreements and instruments (and pay the cost of filing or recording
the same in all public offices deemed necessary or desirable by Lender) and do
such other acts and things or cause third parties to do such other acts and
things as Lender may deem necessary or desirable in its sole discretion in order
to establish and maintain a valid, attached and perfected security interest in
the Collateral in favor of Lender (free and clear of all other liens, claims,
encumbrances and rights of third parties whatsoever, whether voluntarily or
involuntarily created, except Permitted Liens) to secure payment of the
Liabilities, and in order to facilitate the collection of the Collateral.
Borrower irrevocably hereby makes, constitutes and appoints Lender (and all
Persons designated by Lender for that purpose) as Borrower's true and lawful
attorney and agent-in-fact to execute and file such financing statements,
documents and other agreements and instruments and do such other acts and things
as may be necessary to preserve and perfect Lender's security interest in the
Collateral. Borrower further agrees that a carbon, photographic, photostatic or
other reproduction of this Agreement or of a financing statement shall be
sufficient as a financing statement. Borrower further ratifies, confirms and
authorizes the prior filing by Lender of any and all financing statements which
identify the Borrower as debtor, Lender as secured party and any or all
Collateral as collateral.
-21-
7. POSSESSION OF COLLATERAL AND RELATED MATTERS.
--------------------------------------------
Until an Event of Default has occurred, Borrower shall have
the right, except as otherwise provided in this Agreement, in the ordinary
course of Borrower's business, to (a) sell, lease or furnish under contracts of
service any of Borrower's Inventory normally held by Borrower for any such
purpose; and (b) use and consume any raw materials, work in process or other
materials normally held by Borrower for such purpose; provided, however, that a
sale in the ordinary course of business shall not include any transfer or sale
in satisfaction, partial or complete, of a debt owed by Borrower.
8. COLLECTIONS.
-----------
(a) Borrower shall direct all of its Account Debtors to
make all payments on the Accounts directly to a post office box (the "Lock
Box") designated by, and under the exclusive control of, Lender, at a financial
institution acceptable to Lender. Borrower shall establish an account (the
"Lock Box Account") in Lender's name with a financial institution acceptable to
Lender, into which all payments received in the Lock Box shall be deposited,
and into which Borrower will immediately deposit all payments received by
Borrower for Inventory or services in the identical form in which such payments
were received, whether by cash or check. If Borrower, any Affiliate or
Subsidiary, any shareholder, officer, director, employee or agent of Borrower
or any Affiliate or Subsidiary, or any other Person acting for or in concert
with Borrower shall receive any monies, checks, notes, drafts or other payments
relating to or as Proceeds of Accounts or other Collateral, Borrower and each
such Person shall receive all such items in trust for, and as the sole and
exclusive property of, Lender and, immediately upon receipt thereof, shall
remit the same (or cause the same to be remitted) in kind to the Lock Box
Account. The financial institution with which the Lock Box Account is
established shall acknowledge and agree, in a manner satisfactory to Lender,
that the amounts on deposit in such Lock Box Account are the sole and exclusive
property of Lender, that such financial institution will follow the
instructions of Lender with respect to disposition of funds in the Lock Box and
Lock Box Account without further consent from Borrower, that such financial
institution has no right to setoff against the Lock Box Account or against any
other account maintained by such financial institution into which the contents
of the Lock Box Account are transferred, and that such financial institution
shall wire, or otherwise transfer in immediately available funds to Lender in a
manner satisfactory to Lender, funds deposited in the Lock Box Account on a
daily basis as such funds are collected. Borrower agrees that all payments made
to such Lock Box Account or otherwise received by Lender, whether in respect of
the Accounts or as Proceeds of other Collateral or otherwise, will be applied
on account of the Liabilities in accordance with the terms of this Agreement;
provided, that so long as no Event of Default has occurred, payments received
by Lender shall not be applied to the unmatured portion of the LIBOR Rate
Loans, but shall be held in an interest bearing cash collateral account
maintained by Lender, until the earlier of (i) the last day of the Interest
Period applicable to such LIBOR Rate Loan and (ii) the occurrence of an Event
of Default; provided further, that so long as no Event of Default has occurred,
the immediately available funds in such cash collateral account may be
disbursed, at Borrower's discretion, to Borrower so long as after giving effect
to such disbursement, Borrower's availability under subsection 2(a) hereof at
---------------
such time, equals or exceeds the outstanding Revolving Loans at such time.
Borrower agrees to pay all fees, costs and expenses
-22-
in connection with opening and maintaining the Lock Box Account. All of such
fees, costs and expenses if not paid by Borrower, may be paid by Lender and in
such event all amounts paid by Lender shall constitute Liabilities hereunder,
shall be payable to Lender by Borrower upon demand, and, until paid, shall bear
interest at the highest rate then applicable to Loans hereunder. All checks,
drafts, instruments and other items of payment or Proceeds of Collateral shall
be endorsed by Borrower to Lender, and, if that endorsement of any such item
shall not be made for any reason, Lender is hereby irrevocably authorized to
endorse the same on Borrower's behalf. For the purpose of this section,
Borrower irrevocably hereby makes, constitutes and appoints Lender (and all
Persons designated by Lender for that purpose) as Borrower's true and lawful
attorney and agent-in-fact (i) to endorse Borrower's name upon said items of
payment and/or Proceeds of Collateral and upon any Chattel Paper, Document,
Instrument, invoice or similar document or agreement relating to any Account of
Borrower or Goods pertaining thereto; (ii) to take control in any manner of any
item of payment or Proceeds thereof and (iii) to have access to any lock box or
postal box into which any of Borrower's mail is deposited, and open and process
all mail addressed to Borrower and deposited therein.
(b) From and after the occurrence of an Event of Default,
Lender may, at any time and from time to time, whether before or after
notification to any Account Debtor and whether before or after the maturity of
any of the Liabilities, (i) enforce collection of any of Borrower's Accounts or
other amounts owed to Borrower by suit or otherwise; (ii) exercise all of
Borrower's rights and remedies with respect to proceedings brought to collect
any Accounts or other amounts owed to Borrower; (iii) surrender, release or
exchange all or any part of any Accounts or other amounts owed to Borrower, or
compromise or extend or renew for any period (whether or not longer than the
original period) any indebtedness thereunder; (iv) sell or assign any Account of
Borrower or other amount owed to Borrower upon such terms, for such amount and
at such time or times as Lender deems advisable; (v) prepare, file and sign
Borrower's name on any proof of claim in bankruptcy or other similar document
against any Account Debtor or other Person obligated to Borrower; and (vi) do
all other acts and things which are necessary, in Lender's sole discretion, to
fulfill Borrower's obligations under this Agreement and to allow Lender to
collect the Accounts or other amounts owed to Borrower. In addition to any other
provision hereof, Lender may at any time, from and after the occurrence of an
Event of Default, at Borrower's expense, notify any parties obligated on any of
the Accounts to make payment directly to Lender of any amounts due or to become
due thereunder.
(c) For purposes of calculating interest and fees, Lender
shall, within one (1) Business Day after receipt by Lender at its office in
Chicago, Illinois of cash or other immediately available funds from collections
of items of payment and Proceeds of any Collateral, apply the whole or any part
of such collections or Proceeds against the Liabilities in such order as Lender
shall determine in its sole discretion. For purposes of determining the amount
of Loans available for borrowing purposes, checks and cash or other immediately
available funds from collections of items of payment and Proceeds of any
Collateral shall be applied in whole or in part against the Liabilities, in such
order as Lender shall determine in its sole discretion, on the day of receipt,
subject to actual collection.
(d) On a monthly basis, Lender shall deliver to Borrower
an account statement showing all Loans, charges and payments, which shall be
deemed final, binding and conclusive
-23-
upon Borrower unless Borrower notifies Lender in writing, specifying any error
therein, within thirty (30) days of the date such account statement is sent to
Borrower and any such notice shall only constitute an objection to the items
specifically identified.
9. COLLATERAL, AVAILABILITY AND FINANCIAL REPORTS AND SCHEDULES.
------------------------------------------------------------
(a) LOAN REPORTS.
------------
Borrower shall deliver to Lender an executed loan report and
certificate in Lender's then current form (a copy of which is attached hereto as
Exhibit D) at least once each week, which shall be accompanied by copies of
Borrower's sales journal, cash receipts journal and credit memo journal for the
relevant period. Such report shall reflect the activity of Borrower with respect
to Accounts for the immediately preceding week, and shall be in a form and with
such specificity as is satisfactory to Lender and shall contain such additional
information concerning Accounts and Inventory as may be requested by Lender
including, without limitation, but only if specifically requested by Lender,
copies of all invoices prepared in connection with such Accounts.
(b) MONTHLY REPORTS.
---------------
Borrower shall deliver to Lender, in addition to any other
reports, as soon as practicable and in any event: (i) within twenty (20) days
after the end of each month, (A) a detailed trial balance of Borrower's Accounts
aged per invoice date, in form and substance reasonably satisfactory to Lender
including, without limitation, the names and addresses of all Account Debtors of
Borrower, and (B) a summary and detail of accounts payable (such Accounts and
accounts payable divided into such time intervals as Lender may require in its
sole but reasonable discretion), including a listing of any held checks; and
(ii) within twenty (20) days after the end of each month, the general ledger
inventory account balance, a perpetual inventory report and Lender's standard
form of Inventory report then in effect or the form most recently requested from
Borrower by Lender, for Borrower by each category of Inventory, together with a
description of the monthly change in each category of Inventory.
(c) FINANCIAL STATEMENTS.
--------------------
Borrower shall deliver to Lender the following financial
information, all of which shall be prepared in accordance with generally
accepted accounting principles consistently applied, and shall be accompanied by
a compliance certificate in the form of Exhibit B hereto, which compliance
---------
certificate shall include a calculation of all financial covenants contained in
this Agreement: (i) no later than thirty (30) days after each calendar month,
copies of internally prepared financial statements, including, without
limitation, balance sheets and statements of income, retained earnings and cash
flow of Borrower, certified by the Chief Financial Officer of Borrower; (ii) no
later than forty-five (45) days after the end of each of the first three
quarters of Borrower's Fiscal Year, copies of internally prepared financial
statements including, without limitation, balance sheets, statements of income,
retained earnings, cash flows and a statement of changes in stockholders'
equity, certified by the Chief Financial Officer of Borrower and (iii) no
-24-
later than ninety (90) days after the end of each of Borrower's Fiscal Years,
audited annual financial statements with an unqualified opinion by independent
certified public accountants selected by Borrower and reasonably satisfactory
to Lender, which financial statements shall be accompanied by copies of any
management letters sent to the Borrower by such accountants;
(d) ANNUAL PROJECTIONS.
------------------
As soon as practicable and in any event prior to the beginning of each
Fiscal Year, Borrower shall deliver to Lender projected balance sheets,
statements of income and cash flow for Borrower, for each of the twelve (12)
months during such Fiscal Year, which shall include the assumptions used
therein, together with appropriate supporting details as reasonably requested by
Lender.
(e) EXPLANATION OF BUDGETS AND PROJECTIONS.
--------------------------------------
In conjunction with the delivery of the annual presentation of
projections or budgets referred to in subsection 9(d) above, Borrower shall
---------------
deliver a letter signed by the President or a Vice President of Borrower and by
the Treasurer or Chief Financial Officer of Borrower, describing, comparing and
analyzing, in detail, all changes and developments between the anticipated
financial results included in such projections or budgets and the historical
financial statements of Borrower.
(f) PUBLIC REPORTING.
----------------
Promptly upon the filing thereof, Borrower shall deliver to Lender
copies of all registration statements and annual, quarterly, monthly or
other regular reports which Borrower or any of its Subsidiaries files with the
Securities and Exchange Commission, as well as promptly providing to Lender
copies of any reports and proxy statements delivered to its shareholders.
(g) OTHER INFORMATION.
-----------------
Promptly following request therefor by Lender, such other
business or financial data, reports, appraisals and projections as Lender may
reasonably request.
10. TERMINATION; AUTOMATIC RENEWAL.
------------------------------
THIS AGREEMENT SHALL BE IN EFFECT FROM THE DATE HEREOF UNTIL
DECEMBER ___, 2004 (THE "ORIGINAL TERM") AND SHALL AUTOMATICALLY RENEW ITSELF
FROM YEAR TO YEAR THEREAFTER (EACH SUCH ONE-YEAR RENEWAL BEING REFERRED TO
HEREIN AS A "RENEWAL TERM") UNLESS (A) LENDER NOTIFIES BORROWER, IN THE SOLE AND
ABSOLUTE DISCRETION OF THE LENDER, NOT LESS THAN SEVENTY-FIVE (75) DAYS PRIOR TO
THE END OF THE ORIGINAL TERM OR THE THEN CURRENT RENEWAL TERM THAT NO RENEWAL
TERMS (OR NO ADDITIONAL RENEWAL TERMS, AS APPLICABLE) WILL BE ELECTED BY LENDER;
(B) THE DUE DATE OF THE LIABILITIES IS ACCELERATED PURSUANT TO SECTION 16 HEREOF
----------
OR BY ANY OTHER LEGAL MEANS; OR (C) BORROWER ELECTS TO TERMINATE
-25-
THIS AGREEMENT DURING THE ORIGINAL TERM OR DURING ANY RENEWAL TERM BY GIVING
LENDER WRITTEN NOTICE OF SUCH ELECTION AT LEAST NINETY (90) DAYS PRIOR TO THE
DATE SUCH TERMINATION IS TO BE EFFECTIVE (OR PRIOR TO THE END OF THE ORIGINAL
TERM OR THE THEN CURRENT RENEWAL TERM, IF BORROWER DESIRES TO TERMINATE AT THE
END OF SUCH ORIGINAL TERM OR RENEWAL TERM) AND BY PAYING ALL OF THE LIABILITIES
IN FULL ON THE NINETIETH (90TH) DAY FOLLOWING SUCH NOTICE, INCLUDING WITHOUT
LIMITATION ANY PREPAYMENT FEE DUE HEREUNDER. If one or more of the events
specified in clauses (a), (b) and (c) occurs, then (i) Lender shall not make
any additional Loans on or after the date identified as the date on which the
Liabilities are to be repaid; and (ii) this Agreement shall terminate on the
date thereafter that the Liabilities are paid in full. At such time as Borrower
has repaid all of the Liabilities and this Agreement has terminated, Borrower
shall deliver to Lender a release, in form and substance satisfactory to
Lender, of all obligations and liabilities of Lender and its officers,
directors, employees, agents, parents, subsidiaries and affiliates to Borrower,
and if Borrower is obtaining new financing from another lender, Borrower shall
deliver such lender's indemnification of Lender, in form and substance
satisfactory to Lender, for checks which Lender has credited to Borrower's
account, but which subsequently are dishonored for any reason or for automatic
clearinghouse or wire transfers not yet posted to Borrower's account. If,
during the term of this Agreement, Borrower prepays all of the Liabilities from
any source other than income from the ordinary course operations of Borrower's
business and this Agreement is terminated, Borrower agrees to pay to Lender as
a prepayment fee, in addition to the payment of all other Liabilities, an
amount equal to (i) one percent (1%) of the Maximum Loan Limit if such
prepayment occurs two (2) years or more prior to the end of the Original Term
and (ii) one-half of one percent (0.5%) of the Maximum Loan Limit if such
prepayment occurs less than two (2) years prior to the end of the Original
Term. No prepayment fee shall be due for a termination during a Renewal Term.
In the event and to the extent of a prepayment hereunder resulting from and
occurring within three (3) days after an initial public offering or private
placement of Borrower's stock, no prepayment fee will be due hereunder. In the
event Borrower completes an acquisition requiring a material change to the
Lender's commitment level hereunder and/or the structure of this Agreement and
Lender is unwilling or unable to provide the changes to the Lender's commitment
level hereunder and/or the structural changes required after sufficient due
diligence, negotiation and documentation in an effort to so modify the Lender's
commitment level and/or structure of this Agreement, no prepayment fee will be
due hereunder provided, that, the Borrower actually closes a financing
-------- ----
transaction with another lender within ninety (90) days of Lender's notice to
Borrower that Lender is unwilling or unable to modify its commitment level
hereunder and/or the structure of this Agreement to accommodate the
acquisition, and provided that such replacement financing is actually on
substantially the terms and conditions that Lender was unwilling or unable to
offer.
11. REPRESENTATIONS AND WARRANTIES.
------------------------------
Borrower hereby represents and warrants to Lender, which
representations and warranties (whether appearing in this Section 11 or
----------
elsewhere) shall be true at the time of Borrower's execution hereof and the
closing of the transactions described herein or related hereto, shall remain
true until the repayment in full and satisfaction of all the Liabilities and
-26-
termination of this Agreement, and shall be remade by Borrower at the time each
Loan is made pursuant to this Agreement.
(a) FINANCIAL STATEMENTS AND OTHER INFORMATION.
------------------------------------------
The financial statements and other information delivered or to be
delivered by Borrower to Lender at or prior to the date of this Agreement
accurately reflect the financial condition of Borrower, and there has been no
material adverse change in the financial condition, the operations or any other
status of Borrower since the date of the financial statements delivered to
Lender most recently prior to the date of this Agreement. All written
information now or heretofore furnished by Borrower to Lender is true and
correct as of the date with respect to which such information was furnished.
(b) LOCATIONS.
---------
The office where Borrower keeps its books, records and accounts (or
copies thereof) concerning the Collateral, Borrower's principal place of
business and all of Borrower's other places of business, locations of
Collateral and post office boxes and locations of bank accounts are as set
forth in Exhibit A and at other locations within the continental United States
---------
of which Lender has been advised by Borrower in accordance with subsection
----------
12(b)(i). The Collateral, including, without limitation, the Equipment (except
-------
any part thereof which Borrower shall have advised Lender in writing consists
of Collateral normally used in more than one state) is kept, or, in the case of
vehicles, based, only at the addresses set forth on Exhibit A, and at other
---------
locations within the continental United States of which Lender has been advised
by Borrower in writing in accordance with subsection 12(b)(i) hereof.
------------------
(c) LOANS BY BORROWER.
-----------------
Borrower has not made any loans or advances to any Affiliate or other
Person except for advances authorized hereunder to employees, officers and
directors of Borrower for travel and other expenses arising in the ordinary
course of Borrower's business.
(d) ACCOUNTS AND INVENTORY.
----------------------
Each Account or item of Inventory which Borrower shall,expressly or by
implication, request Lender to classify as an Eligible Account or as Eligible
Inventory, respectively, shall, as of the time when such request is made,
conform in all respects to the requirements of such classification as set forth
in the respective definitions of "Eligible Account" and "Eligible Inventory" as
set forth herein and as otherwise established by Lender from time to time.
(e) LIENS.
-----
Borrower is the lawful owner of all Collateral now purportedly owned
or hereafter purportedly acquired by Borrower, free from all liens, claims,
security interests and encumbrances whatsoever, whether voluntarily or
involuntarily created and whether or not perfected, other than the Permitted
Liens.
-27-
(f) ORGANIZATION, AUTHORITY AND NO CONFLICT.
---------------------------------------
Gibraltar is a corporation duly organized, validly existing and in
good standing in the State of Delaware, its federal employer identification
number is 00-0000000. Gibraltar is duly qualified and in good standing in
Nebraska, North Carolina and all other states where the nature and extent of
the business transacted by it or the ownership of its assets makes such
qualification necessary. RidgePak is a corporation duly organized, validly
existing and in good standing in the State of Illinois, its federal employer
identification number is 00-0000000. RidgePak is duly qualified and in good
standing in Indiana and all other states where the nature and extent of the
business transacted by it or the ownership of its assets makes such
qualification necessary. Standard is a corporation duly organized, validly
existing and in good standing in the State of North Carolina, its federal
employer identification number is 00-0000000. Standard is duly qualified and in
good standing in and all other states where the nature and extent of the
business transacted by it or the ownership of its assets makes such
qualification necessary. Niemand is a corporation duly organized, validly
existing and in good standing in the State of Delaware, its federal employer
identification number is 00-0000000. Niemand is duly qualified and in good
standing in Alabama and all other states where the nature and extent of the
business transacted by it or the ownership of its assets makes such
qualification necessary. Borrower has the right and power and is duly
authorized and empowered to enter into, execute and deliver this Agreement and
the Other Agreements and perform its obligations hereunder an thereunder.
Borrower's execution, delivery and performance of this Agreement and the Other
Agreements does not conflict with the provisions of the organizational
documents of Borrower, any statute, regulation, ordinance or rule of law, or
any agreement, contract or other document which may now or hereafter be binding
on Borrower, and Borrower's execution, delivery and performance of this
Agreement and the Other Agreements shall not result in the imposition of any
lien or other encumbrance upon any of Borrower's property under any existing
indenture, mortgage, deed of trust, loan or credit agreement or other agreement
or instrument by which Borrower or any of its property may be bound or affected.
(g) LITIGATION.
----------
Except as set forth on Schedule 11(g) hereof, there are no actions or
-------------
proceedings which are pending or threatened against Borrower which might have a
Material Adverse Effect on Borrower, and Borrower shall, promptly upon becoming
aware of any such pending or threatened action or proceeding, give written
notice thereof to Lender. Borrower has no Commercial Tort Claims pending other
than those set forth on Exhibit C hereto as Exhibit C may be amended from time
--------- ---------
to time.
(h) COMPLIANCE WITH LAWS AND MAINTENANCE OF PERMITS.
-----------------------------------------------
Borrower has obtained all governmental consents, franchises,
certificates, licenses, authorizations, approvals and permits, the lack of which
would have a Material Adverse Effect on Borrower. Borrower is in compliance in
all material respects with all applicable federal, state, local and foreign
statutes, orders, regulations, rules and ordinances (including, without
limitation, Environmental Laws and statutes, orders, regulations, rules and
ordinances relating to taxes, employer and employee contributions and similar
items, securities, ERISA
-28-
or employee health and safety) the failure to comply with which would have a
Material Adverse Effect on Borrower.
(i) AFFILIATE TRANSACTIONS.
----------------------
Except as set forth on Schedule 11(i) hereto or as permitted
-------------
pursuant to subsection 11(c) hereof, Borrower is not conducting, permitting or
---------------
suffering to be conducted, transaction with any Affiliate other than
transactions with Affiliates for the purchase or sale of Inventory or services
in the ordinary course of business pursuant to terms that are no less favorable
to Borrower than the terms upon which such transfers or transactions would have
been made had they been made to or with a Person that is not an Affiliate.
(j) NAMES AND TRADENAMES.
--------------------
Borrower's name has always been as set forth on the first page of this
Agreement and Borrower uses no tradenames, assumed names, fictitious names or
division names in the operation of its business, except as set forth on
Schedule 11(j) hereto.
-------------
(k) EQUIPMENT.
---------
Except as set forth on Schedule 11(k) hereto, Borrower has good and
--------------
indefeasible and merchantable title to and ownership of all Equipment used in
connection with its business operations. No Equipment is a Fixture to real
estate unless such real estate is owned by Borrower and is subject to a
mortgage in favor of Lender or an accession to other personal property unless
such personal property is subject to a first priority lien in favor of Lender.
(l) ENFORCEABILITY.
--------------
This Agreement and the Other Agreements to which Borrower is a party
are the legal, valid and binding obligations of Borrower and are enforceable
against Borrower in accordance with their respective terms.
(m) SOLVENCY.
--------
After giving effect to the transactions contemplated hereby, the
Borrowers are, on a consolidated basis, solvent, able to pay their debts as
they become due, have capital sufficient to carry on their businesses, now own
property having a value both at fair valuation and at present fair saleable
value greater than the amount required to pay their debts, and will not be
rendered insolvent by the execution and delivery of this Agreement or any of the
Other Agreements or by completion of the transactions contemplated hereunder or
thereunder.
(n) INDEBTEDNESS.
------------
Except as set forth on Schedule 11(n) hereto, Borrower is not
-------------
obligated (directly or indirectly), for any loans or other indebtedness for
borrowed money other than the Loans.
-29-
(o) MARGIN SECURITY AND USE OF PROCEEDS.
-----------------------------------
Borrower does not own any margin securities, and none of the proceeds
of the Loans hereunder shall be used for the purpose of purchasing or
carrying any margin securities or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase any margin securities or
for any other purpose not permitted by Regulation U of the Board of Governors of
the Federal Reserve System as in effect from time to time.
(p) PARENT, SUBSIDIARIES AND AFFILIATES.
-----------------------------------
Except as set forth on Schedule 11(p) hereto, Borrower has no Parents,
--------------
Subsidiaries or other Affiliates or divisions, nor is Borrower engaged in any
joint venture or partnership with any other Person.
(q) NO DEFAULTS.
-----------
Borrower is not in default under any material contract, lease or
commitment to which it is a party or by which it is bound, nor does Borrower
know of any dispute regarding any contract, lease or commitment which would have
a Material Adverse Effect on Borrower.
(r) EMPLOYEE MATTERS.
----------------
There are no controversies pending or threatened between Borrower and
any of its employees, agents or independent contractors other than employee
grievances arising in the ordinary course of business which would not, in the
aggregate, have a Material Adverse Effect on Borrower, and Borrower is in
compliance with all federal and state laws respecting employment and employment
terms, conditions and practices except for such non-compliance which would not
have a Material Adverse Effect on Borrower.
(s) INTELLECTUAL PROPERTY.
---------------------
Borrower possesses adequate licenses, patents, patent applications,
copyrights, service marks, trademarks, trademark applications, tradestyles and
tradenames to continue to conduct its business as heretofore conducted by it.
(t) ENVIRONMENTAL MATTERS.
---------------------
Except as set forth on Schedule 11(t) hereto, Borrower has not
--------------
generated, used, stored, treated, transported, manufactured, handled, produced
or disposed of any Hazardous Materials, on or off its premises (whether or not
owned by it, but specifically including the Real Property) in any manner which
at any time violates any Environmental Law or any license, permit, certificate,
approval or similar authorization thereunder and the operations of the Borrower
comply in all material respects with all Environmental Laws and all licenses,
permits, certificates, approvals and similar authorizations thereunder. Except
as set forth on Schedule 11(t) hereto, there has been no investigation,
--------------
proceeding, complaint, order, directive, claim, citation or notice by any
governmental authority or any other Person, nor is any pending or to the best of
the Borrower's knowledge threatened with respect to any non-compliance with or
-30-
violation of the requirements of any Environmental Law by the Borrower or the
release, spill or discharge, threatened or actual, of any Hazardous Materials or
the generation, use, storage, treatment, transportation, manufacture, handling,
production or disposal of any Hazardous Materials or any other environmental,
health or safety matter, which affects the Borrower or its business, operations
or assets or any properties at which the Borrower has transported, stored or
disposed of any Hazardous Materials. Except as set forth on Schedule 11(t)
--------------
hereto, Borrower has no material liability (contingent or otherwise) in
connection with a release, spill or discharge, threatened or actual, of any
Hazardous Materials or the generation, use, storage, treatment, transportation,
manufacture, handling, production or disposal of any Hazardous Materials.
(u) ERISA MATTERS.
-------------
Borrower has paid and discharged all obligations and liabilities
arising under ERISA of a character which, if unpaid or unperformed, might
result in the imposition of a lien against any of its properties or assets.
(v) Real Estate Matters.
-------------------
(i) Gibraltar is the fee simple owner of the Hastings,
Nebraska Real Property legally described on Schedule 11(v) hereto. Except as
--------------
set forth in the proforma title insurance policy relating to the Hastings,
Nebraska Real Property issued by Chicago Title Insurance Company showing Lender
as the insured, which proforma policy is attached to Schedule 11(v), there are
--------------
no liens, encumbrances, contracts, agreements or other matters, recorded or
unrecorded, effecting the Hastings, Nebraska Real Property.
(ii) Standard is the fee simple owner of the Mt. Gilead,
North Carolina Real Property legally described on Schedule 11(v) hereto. Except
--------------
as set forth in the proforma title insurance policy relating to the Mt. Gilead,
North Carolina Real Property issued by Chicago Title Insurance Company showing
Lender as the insured, which proforma policy is attached to Schedule 11(v),
--------------
there are no liens, encumbrances, contracts, agreements or other matters,
recorded or unrecorded, effecting the Mt. Gilead, North Carolina Real Property.
(iii) RidgePak is the fee simple owner of the Ft.
Xxxxx, Indiana Real Property legally described on Schedule 11(v) hereto. Except
--------------
as set forth in the proforma title insurance policy relating to the Ft. Xxxxx,
Indiana Real Property issued by Chicago Title Insurance Company showing Lender
as the insured, which proforma policy is attached to Schedule 11(v), there are
--------------
no liens, encumbrances, contracts, agreements or other matters, recorded or
unrecorded, effecting the Ft. Xxxxx, Indiana Real Property.
(iv) Niemand is the fee simple owner of the Xxxxxx,
Alabama Real Property legally described on Schedule 11(v) hereto. Except as set
--------------
forth in the proforma title insurance policy relating to the Xxxxxx, Alabama
Real Property issued by Chicago Title Insurance Company showing Lender as the
insured, which proforma policy is attached to Schedule 11(v), there are no
--------------
liens, encumbrances, contracts, agreements or other matters, recorded or
unrecorded, effecting the Xxxxxx, Alabama Real Property.
-31-
(v) Other than the Real Property, Borrower does not own any
real estate of any kind.
12. AFFIRMATIVE COVENANTS.
---------------------
Until payment and satisfaction in full of all Liabilities and
termination of this Agreement, unless Borrower obtains Lender's prior written
consent waiving or modifying any of Borrower's covenants hereunder in any
specific instance, Borrower covenants and agrees as follows:
(a) MAINTENANCE OF RECORDS.
----------------------
Borrower shall at all times keep accurate and complete books, records
and accounts with respect to all of Borrower's business activities, in
accordance with sound accounting practices and generally accepted accounting
principles consistently applied, and shall keep such books, records and
accounts, and any copies thereof, only at the addresses indicated for such
purpose on Exhibit A;
----------
(b) NOTICES.
-------
Borrower shall:
(i) Locations. Promptly (but in no event less than ten (10)
---------
days prior to the occurrence thereof) notify Lender of the proposed
opening of any new place of business or new location of Collateral, the
closing of any existing place of business or location of Collateral, any
change of in the location of Borrower's books, records and accounts (or
copies thereof), the opening or closing of any post office box, the
opening or closing of any bank account or, if any of the Collateral
consists of Goods of a type normally used in more than one state, the
use of any such Goods in any state other than a state in which Borrower
has previously advised Lender that such Goods will be used.
(ii) Eligible Accounts and Inventory. Promptly upon
-------------------------------
becoming aware thereof, notify Lender if any Account or Inventory
identified by Borrower to Lender as an Eligible Account or Eligible
Inventory becomes ineligible for any reason.
(iii) Litigation and Proceedings. Promptly upon
--------------------------
becoming aware thereof, notify Lender of any actions or proceedings
which are pending or threatened against Borrower which might have a
Material Adverse Effect on Borrower and of any Commercial Tort Claims of
Borrower which may arise, which notice shall constitute Borrower's
authorization to amend Exhibit C to add such Commercial Tort Claim.
---------
(iv) Names and Tradenames. Notify Lender within ten (10)
--------------------
days of the change of its name or the use of any tradename, assumed
name, fictitious name or division name not previously disclosed to
Lender in writing.
(v) ERISA Matters. Promptly notify Lender of (x) the
-------------
occurrence of any "reportable event" (as defined in ERISA) which might
result in the termination by the
-32-
Pension Benefit Guaranty Corporation (the "PBGC") of any employee
benefit plan ("Plan") covering any officers or employees of the
Borrower, any benefits of which are, or are required to be, guaranteed
by the PBGC, (y) receipt of any notice from the PBGC of its intention to
seek termination of any Plan or appointment of a trustee therefor or (z)
its intention to terminate or withdraw from any Plan.
(vi) Environmental Matters. Immediately notify Lender
---------------------
upon becoming aware of any investigation, proceeding, complaint, order,
directive, claim, citation or notice with respect to any non-compliance
with or violation of the requirements of any Environmental Law by
Borrower or the generation, use, storage, treatment, transportation,
manufacture handling, production or disposal of any Hazardous Materials
or any other environmental, health or safety matter which affects
Borrower or its business operations or assets or any properties at which
Borrower has transported, stored or disposed of any Hazardous Materials.
(vii) Default; Material Adverse Effect. Promptly advise
Lender of any Material Adverse Effect of Borrower or an event which may
cause a Material Adverse Effect, the occurrence of any Event of Default
hereunder or the occurrence of any event which, if uncured, will become
an Event of Default after notice or lapse of time (or both).
All of the foregoing notices shall be provided by Borrower to Lender in writing.
(c) COMPLIANCE WITH LAWS AND MAINTENANCE OF PERMITS.
-----------------------------------------------
Borrower shall maintain all governmental consents, franchises,
certificates, licenses, authorizations, approvals and permits, the lack of which
would have a Material Adverse Effect on Borrower and Borrower shall remain in
compliance with all applicable federal, state, local and foreign statutes,
orders, regulations, rules and ordinances (including, without limitation,
Environmental Laws and statutes, orders, regulations, rules and ordinances
relating to taxes, employer and employee contributions and similar items,
securities, ERISA or employee health and safety) the failure with which to
comply would have a Material Adverse Effect on Borrower. Following any
determination by Lender that there is non-compliance, or any condition which
requires any action by or on behalf of Borrower in order to avoid
non-compliance, with any Environmental Law, at Borrower's expense, Lender may
cause an independent environmental engineer acceptable to Lender to conduct such
tests of the relevant site(s) as are appropriate and prepare and deliver a
report setting forth the results of such tests, a proposed plan for remediation
and an estimate of the costs thereof.
(d) INSPECTION AND AUDITS.
---------------------
Borrower shall permit Lender, or any Persons designated by it, to call
at Borrower's places of business at any reasonable times, and, without
hindrance or delay, to inspect the Collateral and to inspect, audit, check and
make extracts from Borrower's books, records, journals, orders, receipts and
any correspondence and other data relating to Borrower's business, the
Collateral or any transactions between the parties hereto, and shall have the
right to make such verification concerning Borrower's business as Lender may
consider reasonable under the
-33-
circumstances. Borrower shall furnish to Lender such information relevant to
Lender's rights under this Agreement as Lender shall at any time and from time
to time request. Lender, through its officers, employees or agents shall have
the right, at any time and from time to time, in Lender's name, to verify the
validity, amount or any other matter relating to any of Borrower's Accounts, by
mail, telephone, telegraph or otherwise. Borrower authorizes Lender to discuss
the affairs, finances and business of Borrower with any officers, employees or
directors of Borrower or with its Parent or any Affiliate or the officers,
employees or directors of its Parent or any Affiliate, and to discuss the
financial condition of Borrower with Borrower's independent public accountants.
Any such discussions shall be without liability to Lender or to Borrower's
independent public accountants. Borrower shall pay to Lender all customary fees
and all costs and out-of-pocket expenses incurred by Lender in the exercise of
its rights hereunder, and all of such fees, costs and expenses shall constitute
Liabilities hereunder, shall be payable on demand and, until paid, shall bear
interest at the highest rate then applicable to Loans hereunder;
(e) INSURANCE.
---------
Borrower shall:
(i) Keep the Collateral properly housed and insured for the
full insurable value thereof against loss or damage by fire, theft,
explosion, sprinklers, collision (in the case of motor vehicles) and
such other risks as are customarily insured against by Persons engaged
in businesses similar to that of Borrower, with such companies, in such
amounts, with such deductibles, and under policies in such form, as
shall be satisfactory to Lender. Original (or certified) copies of such
policies of insurance have been or shall be, within ninety (90) days of
the date hereof, delivered to Lender, together with evidence of payment
of all premiums therefor, and shall contain an endorsement, in form and
substance acceptable to Lender, showing loss under such insurance
policies payable to Lender. Such endorsement, or an independent
instrument furnished to Lender, shall provide that the insurance company
shall give Lender at least thirty (30) days written notice before any
such policy of insurance is altered or canceled and that no act, whether
willful or negligent, or default of Borrower or any other Person shall
affect the right of Lender to recover under such policy of insurance in
case of loss or damage. In addition, Borrower shall cause to be executed
and delivered to Lender an assignment of proceeds of its business
interruption insurance policies. Borrower hereby directs all insurers
under all policies of insurance to pay all proceeds payable thereunder
directly to Lender. Borrower irrevocably makes, constitutes and appoints
Lender (and all officers, employees or agents designated by Lender) as
Borrower's true and lawful attorney (and agent-in-fact) for the purpose
of making, settling and adjusting claims under such policies of
insurance, endorsing the name of Borrower on any check, draft,
instrument or other item of payment for the proceeds of such policies of
insurance and making all determinations and decisions with respect to
such policies of insurance.
(ii) Maintain, at its expense, such public liability and
third party property damage insurance as is customary for Persons
engaged in businesses similar to that of Borrower with such companies
and in such amounts, with such deductibles and under policies in such
form as shall be satisfactory to Lender and original (or certified)
-34-
copies of such policies have been or shall be, within ninety (90) days
after the date hereof, delivered to Lender, together with evidence of
payment of all premiums therefor; each such policy shall contain an
endorsement showing Lender as additional insured thereunder and
providing that the insurance company shall give Lender at least thirty
(30) days written notice before any such policy shall be altered or
canceled.
If Borrower at any time or times hereafter shall fail to obtain or maintain any
of the policies of insurance required above or to pay any premium relating
thereto, then Lender, without waiving or releasing any obligation or default by
Borrower hereunder, may (but shall be under no obligation to) obtain and
maintain such policies of insurance and pay such premiums and take such other
actions with respect thereto as Lender deems advisable. Such insurance, if
obtained by Lender, may, but need not, protect Borrower's interests or pay any
claim made by or against Borrower with respect to the Collateral. Such insurance
may be more expensive than the cost of insurance Borrower may be able to obtain
on its own and may be canceled only upon Borrower providing evidence that it has
obtained the insurance as required above. All sums disbursed by Lender in
connection with any such actions, including, without limitation, court costs,
expenses, other charges relating thereto and reasonable attorneys' fees, shall
constitute Loans hereunder, shall be payable on demand by Borrower to Lender
and, until paid, shall bear interest at the highest rate then applicable to
Loans hereunder.
Notwithstanding the foregoing, the insurance provisions contained in the Real
Property Mortgages shall govern as to insurance requirements for the Real
Property.
(f) COLLATERAL.
----------
Borrower shall keep the Collateral in good condition, repair and order
and shall make all necessary repairs to the Equipment and replacements thereof
so that the operating efficiency and the value thereof shall at all times be
preserved and maintained. Borrower shall permit Lender to examine any of the
Collateral at any time and wherever the Collateral may be located and, Borrower
shall, immediately upon request therefor by Lender, deliver to Lender any and
all evidence of ownership of any of the Equipment including, without
limitation, certificates of title and applications of title. Borrower shall, at
the request of Lender, indicate on its records concerning the Collateral a
notation, in form satisfactory to Lender, of the security interest of Lender
hereunder.
(g) USE OF PROCEEDS.
---------------
All monies and other property obtained by Borrower from Lender
pursuant to this Agreement shall be used solely for business purposes of
Borrower.
(h) TAXES.
-----
Borrower shall file all required tax returns and pay all of
its taxes when due, including, without limitation, taxes imposed by federal,
state or municipal agencies, and shall cause any liens for taxes to be promptly
released; provided, that Borrower shall have the right to contest the payment of
such taxes in good faith by appropriate proceedings so long as (i) the
-35-
amount so contested is shown on Borrower's financial statements; (ii) the
contesting of any such payment does not give rise to a lien for taxes; (iii)
Borrower has requested that Lender reserve against the Borrowing Base an amount
of money which, in the sole judgment of Lender, is sufficient to pay such taxes
and any interest or penalties that may accrue thereon, or, in the alternative
(or if there is not sufficient availability under the Borrowing Base), Borrower
keeps on deposit with Lender (such deposit to be held without interest) an
amount of money which, in the sole judgment of Lender, is sufficient to pay
such taxes and any interest or penalties that may accrue thereon; and (iv) if
Borrower fails to prosecute such contest with reasonable diligence, Lender may
apply the money so deposited in payment of such taxes. If Borrower fails to pay
any such taxes and in the absence of any such contest by Borrower, Lender may
(but shall be under no obligation to) advance and pay any sums required to pay
any such taxes and/or to secure the release of any lien therefor, and any sums
so advanced by Lender shall constitute Loans hereunder, shall be payable by
Borrower to Lender on demand, and, until paid, shall bear interest at the
highest rate then applicable to Loans hereunder. Notwithstanding the foregoing,
any provisions contained in the Real Property Mortgages relating to the payment
of and escrow for real estate taxes attributable to the Real Property shall
govern as to such requirements as they relate to real estate taxes.
(i) Intellectual Property.
---------------------
Borrower shall maintain adequate licenses, patents, patent
applications, copyrights, service marks, trademarks, trademark applications,
tradestyles and tradenames to continue its business as heretofore conducted by
it or as hereafter conducted by it.
(j) Bank Accounts.
-------------
Borrower shall maintain its general checking account(s) and
Lockbox and blocked account with LaSalle Bank, N.A., and, except as shown on
Schedule 12(j), shall not, without the prior written consent of Lender, maintain
--------------
any bank accounts or other similar accounts with any other financial institution
or Person. With respect to the accounts shown on Schedule 12(j), Borrower shall,
--------------
prior to Closing, cause the applicable financial institutions to deliver fully
executed Account Restriction Agreements limiting the account balances in such
accounts to $7,500, with any amounts in excess of that amount being forwarded by
such financial institution to the Lockbox Account.
(k) Real Estate Matters.
-------------------
Borrower will operate and maintain the Real Property in a
commercially reasonable manner, consistent with the terms of the Real Property
Mortgages and otherwise in such a manner as to keep the Real Property fully
operational for the uses as of the date hereof.
13. NEGATIVE COVENANTS.
------------------
Until payment and satisfaction in full of all Liabilities and
termination of this Agreement, unless Borrower obtains Lender's prior written
consent waiving or modifying any of Borrower's covenants hereunder in any
specific instance, Borrower agrees as follows:
-36-
(a) Guaranties.
----------
Borrower shall not assume, guarantee or endorse, or otherwise
become liable in connection with, the obligations of any Person, except by
endorsement of instruments for deposit or collection or similar transactions in
the ordinary course of business, except that a Borrower may guaranty obligations
of another Borrower hereunder to the extent the underlying obligation being
guarantied is otherwise permitted hereunder.
(b) Indebtedness.
------------
Borrower shall not create, incur, assume or become obligated
(directly or indirectly), for any loans or other indebtedness of borrowed money
other than the loans, except that Borrower may (i) borrow money from a person
other than Lender on an unsecured and subordinated basis if a subordination
agreement in favor of Lender and in form and substance satisfactory to Lender is
executed and delivered to Lender relative thereto; (ii) maintain its present
indebtedness listed on Schedule 11(n) hereto; (iii) incur unsecured indebtedness
--------------
to trade creditors in the ordinary course of business; (iv) incur purchase money
indebtedness or capitalized lease obligations in connection with Capital
Expenditures permitted pursuant to subsection 14(d) hereof; and (v) incur
----------------
operating lease obligations requiring payments not to exceed $1,600,000 in the
aggregate during any Fiscal Year of Borrower.
(c) Liens.
-----
Borrower shall not grant or permit to exist (voluntarily or
involuntarily) any lien, claim, security interest or other encumbrance
whatsoever on any of its assets, other than Permitted Liens.
(d) Mergers, Sales, Acquisitions, Subsidiaries and Other
-----------------------------------------------------
Transactions Outside the Ordinary Course of Business.
----------------------------------------------------
Borrower shall not (i) enter into any merger or consolidation
(except that a Borrower hereunder may merge or consolidate with another Borrower
hereunder upon and subject to the execution and delivery of any and all
documentation reasonably required by Lender after a sufficient review period, in
order to satisfy Lender as to the documentation and security positions of Lender
after giving effect to such merger or consolidation); (ii) change the state of
Borrower's organization or enter into any transaction which has the effect of
changing Borrower's state of organization (iii) sell, lease or otherwise dispose
of any of its assets other than in the ordinary course of business (except that
damaged, worn out or obsolete equipment may be sold at fair market value
provided that the proceeds are applied to the Loans as required by subsection
----------
2(d)(iv)(a) hereof); (iv) purchase the stock, other equity interests or all or a
-----------
material portion of the assets of any Person or division of such Person; or (v)
enter into any other transaction outside the ordinary course of Borrower's
business, including, without limitation, any purchase, redemption or retirement
of any shares of any class of its stock or any other equity interest, and any
issuance of any shares of, or warrants or other rights to receive or purchase
any shares of, any class of its stock or any other equity interest. Borrower
shall not form any Subsidiaries or enter into any joint ventures or partnerships
with any other Person.
-37-
(e) Dividends and Distributions.
---------------------------
Borrower shall not declare or pay any dividend or other
distribution (whether in cash or in kind) on any class of its stock (if Borrower
is a corporation) or on account of any equity interest in Borrower (if Borrower
is a partnership, limited liability company or other type of entity).
(f) Investments; Loans.
------------------
Borrower shall not purchase or otherwise acquire, or contract
to purchase or otherwise acquire, the obligations or stock of any Person, other
than direct obligations of the United States; nor shall Borrower lend or
otherwise advance funds to any Person except for advances made to employees,
officers and directors for travel and other expenses arising in the ordinary
course of business.
(g) Fundamental Changes, Line of Business.
-------------------------------------
Borrower shall not amend its organizational documents or
change its Fiscal Year or enter into a new line of business materially different
from Borrower's current business.
(h) Equipment.
---------
Borrower shall not (i) permit any Equipment to become a
Fixture to real property unless such real property is owned by Borrower and is
subject to a mortgage in favor of Lender, or (ii) permit any Equipment to become
an accession to any other personal property unless such personal property is
subject to a first priority lien in favor of Lender.
(i) Use of Proceeds.
---------------
Neither Borrower nor any Affiliate shall use any portion of
the proceeds of the Loans, either directly or indirectly, for the purpose of (i)
purchasing any securities underwritten or privately placed by ABN AMRO
Securities (USA) Inc. ("AASI"), an affiliate of Lender, (ii) purchasing from
AASI any securities in which AASI makes a market, or (iii) refinancing or making
payments of principal, interest or dividends on any securities issued by
Borrower or any Affiliate, and underwritten, privately placed or dealt in by
AASI.
(j) Affiliate Transactions.
----------------------
Expect transactions between the Borrowers (which expressly
shall not create Eligible Accounts) and except as set forth on Schedule 11(i)
--------------
hereto or as permitted pursuant to subsection 11(c) hereof, Borrower shall not
----------------
conduct, permit or suffer to be conducted, transactions with Affiliates for the
purchase or sale of Inventory or services in the ordinary course of business
pursuant to terms that are less favorable to Borrower than the terms upon which
such transfers or transactions would have been made had they been made to or
with a Person that is not an Affiliate.
-38-
(k) Real Estate Matters.
-------------------
(i) Without limiting the general applicability of
the other covenants herein relating to the Collateral, Borrower covenants that
Gibraltar will not sell, transfer, lease, convey or in any manner encumber the
Hastings, Nebraska Real Property. Borrower will not cause or permit (to the
extent of Borrower's ability) a diminution in the value of the Hastings,
Nebraska Real Property.
(ii) Without limiting the general applicability
of the other covenants herein relating to the Collateral, Borrower covenants
that Standard will not sell, transfer, lease, convey or in any manner encumber
the Mt. Gilead, North Carolina Real Property. Borrower will not cause or
permit (to the extent of Borrower's ability) a diminution in the value of the
Mt. Gilead, North Carolina Real Property.
(iii) Without limiting the general applicability
of the other covenants herein relating to the Collateral, Borrower covenants
that RidgePak will not sell, transfer, lease, convey or in any manner encumber
the Ft. Xxxxx, Indiana Real Property. Borrower will not cause or permit (to
the extent of Borrower's ability) a diminution in the value of the Ft. Xxxxx,
Indiana Real Property.
(iv) Without limiting the general applicability
of the other covenants herein relating to the Collateral, Borrower covenants
that Niemand will not sell, transfer, lease, convey or in any manner encumber
the Xxxxxx, Alabama Real Property. Borrower will not cause or permit (to the
extent of Borrower's ability) a diminution in the value of the Xxxxxx, Alabama
Real Property; except that Borrower may sell the Xxxxxx, Alabama Real Property
pursuant to and in accordance with the terms of an option and right of first
refusal contained in a certain Lease dated February 1, 2000 between Neimand (as
Landlord) and TekPak, Inc. (as Tenant), provided, that the proceeds of such
sale are applied against the Loans in accordance with this Agreement.
(v) Borrower will not purchase, lease, acquire or
otherwise contract to use any real estate without first providing to the
Lender, such mortgages, deeds of trust, trust deeds, other security documents,
landlord waivers, bailee letters, warehouseman's lien releases, environmental
indemnities, environmental insurance polices, title insurance (with any
endorsements required by Lender), surveys, zoning reports and all other
documentation, certificates, and due diligence, all as Lender may reasonably
require.
14. FINANCIAL COVENANTS.
-------------------
Borrower shall maintain and keep in full force and effect each
of the financial covenants set forth below:
(a) Net Worth.
---------
(1) From the date hereof through May 31, 2002,
Borrower's Book Net Worth, measured on a monthly basis, shall not at any time
be less than Five Million and No/100 Dollars ($5,000,000) plus eighty-five
----
percent (85%) of Borrower's net income (but without
-39-
reduction for any net loss) for each fiscal year thereafter, measured monthly
on a cumulative basis. For purposes of this subsection, "Book Net Worth" means
Borrower's shareholders' equity (including retained earnings) as determined
under generally accepted accounting principles applied on a basis consistent
with the financial statements dated June 30, 2001.
(2) From and after June 29, 2002, Borrower's
Tangible Net Worth, measured on a monthly basis, shall not at any time be less
than, the Tangible Net Worth on June 30, 2001 plus eighty-five percent (85%) of
----
Borrower's net income (but without reduction for any net loss) for each fiscal
year thereafter, measured monthly on a cumulative basis. For purposes of this
subsection, "Tangible Net Worth" means Borrower's shareholders' equity
(including retained earnings) less the book value of all intangible assets as
----
determined solely by Lender on a consistent basis plus the amount of any LIFO
----
reserve plus the amount of any debt subordinated to Lender, all as determined
under generally accepted accounting principles applied on a basis consistent
with the financial statement dated June 30, 2001.
(b) Debt Service Coverage.
---------------------
Borrower will maintain, on a consolidated basis, a Debt
Service Coverage Ratio of not less than 1.25 to 1.00 for the fiscal month ending
December, 2001, and at the end of each fiscal month thereafter, which Debt
Service Coverage Ratio will be determined on a monthly, cumulative basis through
the December, 2002 test date, and at the end of each fiscal month thereafter, on
a twelve (12) month rolling basis;
(c) Interest Coverage.
-----------------
Borrower will maintain, on a consolidated basis, a Interest
Coverage Ratio of not less than 1.50 to 1.00 for the fiscal month ending
December, 2001, and at the end of each fiscal month thereafter, which Interest
Coverage Ratio will be determined on a monthly, cumulative basis through the
December, 2002 test date, and at the end of each fiscal month thereafter, on a
twelve (12) month rolling basis;
(d) Capital Expenditure Limitations.
-------------------------------
Borrower and its Subsidiaries shall not make any Capital
Expenditures if, after giving effect to such Capital Expenditure, the aggregate
cost of all such fixed assets purchased or otherwise acquired would exceed One
Million, Two Hundred Fifty Thousand and No/100 Dollars ($1,250,000) during any
Fiscal Year.
15. DEFAULT.
The occurrence of any one or more of the following events
shall constitute an "Event of Default" by Borrower hereunder:
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(a) Payment.
-------
The failure of any Obligor to pay when due, declared due, or
demanded by Lender, any of the Liabilities.
(b) Breach of this Agreement and the Other Agreements.
-------------------------------------------------
The failure of any Obligor to perform, keep or observe any of
the covenants, conditions, promises, agreements or obligations of such Obligor
under this Agreement or any of the Other Agreements.
(c) Breaches of Other Obligations.
-----------------------------
The failure of any Obligor to perform, keep or observe any of
the covenants, conditions, promises, agreements or obligations of such Obligor
under any other agreement with any Person if such failure might have a Material
Adverse Effect on such Obligor.
(d) Breach of Representations and Warranties.
----------------------------------------
The making or furnishing by any Obligor to Lender of any
representation, warranty, certificate, schedule, report or other communication
within or in connection with this Agreement or the Other Agreements or in
connection with any other agreement between such Obligor and Lender, which is
untrue or misleading in any respect.
(e) Loss of Collateral.
------------------
The loss, theft, damage or destruction of, or (except as
permitted hereby) sale, lease or furnishing under a contract of service of, any
of the Collateral in excess of $100,000 in the aggregate during the term hereof.
(f) Levy, Seizure or Attachment.
---------------------------
The making by any Person, any levy, seizure or attachment upon
any of the Collateral.
(g) Bankruptcy or Similar Proceedings.
---------------------------------
The commencement of any proceedings in bankruptcy by or
against any Obligor or for the liquidation or reorganization of any Obligor, or
alleging that such Obligor is insolvent or unable to pay its debts as they
mature, or for the readjustment or arrangement of any Obligor's debts, whether
under the United States Bankruptcy Code or under any other law, whether state or
federal, now or hereafter existing, for the relief of debtors, or the
commencement of any analogous statutory or non-statutory proceedings involving
any Obligor; provided, however, that if such commencement of proceedings against
such Obligor is involuntary, such action shall not constitute an Event of
Default if such proceedings are dismissed within thirty (30) days after the
commencement of such proceedings.
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(h) Appointment of Receiver.
-----------------------
The appointment of a receiver or trustee for any Obligor, for
any of the Collateral or for any substantial part of any Obligor's assets or the
institution of any proceedings for the dissolution, or the full or partial
liquidation, or the merger or consolidation, of any Obligor which is a
corporation, limited liability company or a partnership; provided, however, that
if such appointment or commencement of proceedings against such Obligor is
involuntary, such action shall not constitute an Event of Default if such
appointment is revoked or such proceedings are dismissed within thirty (30) days
after the commencement of such proceedings.
(i) Judgment.
--------
The entry of any judgment or order against any Obligor which
remains unsatisfied or undischarged and in effect for thirty (30) days after
such entry without a stay of enforcement or execution.
(j) Death or Dissolution of Obligor.
-------------------------------
The death of any Obligor who is a natural Person, or of any
general partner who is a natural Person of any Obligor which is a partnership,
or any member who is a natural Person of any Obligor which is a limited
liability company or the dissolution of any Obligor which is a partnership,
limited liability company, corporation or other entity.
(k) Default or Revocation of Guaranty.
---------------------------------
The occurrence of an event of default under, or the revocation
or termination of, any agreement, instrument or document executed and delivered
by any Person to Lender pursuant to which such Person has guaranteed to Lender
the payment of all or any of the Liabilities or has granted Lender a security
interest in or lien upon some or all of such Person's real and/or personal
property to secure the payment of all or any of the Liabilities.
(l) Criminal Proceedings.
--------------------
The institution in any court of a criminal proceeding against
any Obligor, or the indictment of any Obligor for any crime.
(m) [Intentionally Omitted.]
---------------------
(n) Change of Management.
--------------------
If Xxxxxxx X. Xxxxxxxx shall cease to be the President of
Gibraltar, and a replacement reasonably acceptable to Lender is not appointed
within ninety (90) days.
(o) Material Adverse Effect.
-----------------------
Any Material Adverse Effect with respect to any Obligor, as
determined by Lender in its sole but reasonable judgment, the occurrence of any
event which, in Lender's sole but reasonable judgment, could have a Material
Adverse Effect or the occurrence of any event
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which impairs or is likely to impair the value of, or Lender's security in, the
Collateral or any portion thereof.
16. REMEDIES UPON AN EVENT OF DEFAULT.
---------------------------------
(a) Upon the occurrence of an Event of Default described in
subsection 15(g) hereof, all of the Liabilities shall immediately and
----------------
automatically become due and payable, without notice of any kind. Upon the
occurrence of any other Event of Default, all Liabilities may, at the option of
Lender, and without demand, notice or legal process of any kind, be declared,
and immediately shall become, due and payable.
(b) Upon the occurrence of an Event of Default, Lender may
exercise from time to time any rights and remedies available to it under the
Uniform Commercial Code and any other applicable law in addition to, and not in
lieu of, any rights and remedies expressly granted in this Agreement or in any
of the Other Agreements and all of Lender's rights and remedies shall be
cumulative and non-exclusive to the extent permitted by law. In particular, but
not by way of limitation of the foregoing, Lender may, without notice, demand or
legal process of any kind, take possession of any or all of the Collateral (in
addition to Collateral of which it already has possession), wherever it may be
found, and for that purpose may pursue the same wherever it may be found, and
may enter onto any of Borrower's premises where any of the Collateral may be,
and search for, take possession of, remove, keep and store any of the Collateral
until the same shall be sold or otherwise disposed of, and Lender shall have the
right to store the same at any of Borrower's premises without cost to Lender. At
Lender's request, Borrower shall, at Borrower's expense, assemble the Collateral
and make it available to Lender at one or more places to be designated by Lender
and reasonably convenient to Lender and Borrower. Borrower recognizes that if
Borrower fails to perform, observe or discharge any of its Liabilities under
this Agreement or the Other Agreements, no remedy at law will provide adequate
relief to Lender, and agrees that Lender shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages. Any notification of intended disposition of any of the
Collateral required by law will be deemed to be a reasonable authenticated
notification of disposition if given at least ten (10) days prior to such
disposition and such notice shall (i) describe Lender and Borrower, (ii)
describe the Collateral that is the subject of the intended disposition, (iii)
state the method of the intended disposition, (iv) state that Borrower is
entitled to an accounting of the Liabilities and state the charge, if any, for
an accounting and (v) state the time and place of any public disposition or the
time after which any private sale is to be made. Lender may disclaim any
warranties that might arise in connection with the sale, lease or other
disposition of the Collateral and has no obligation to provide any warranties at
such time. Any Proceeds of any disposition by Lender of any of the Collateral
may be applied by Lender to the payment of expenses in connection with the
Collateral, including, without limitation, legal expenses and reasonable
attorneys' fees, and any balance of such Proceeds may be applied by Lender
toward the payment of such of the Liabilities, and in such order of application,
as Lender may from time to time elect.
-43-
17. CONDITIONS PRECEDENT.
--------------------
The obligation of Lender to fund the Term Loan, the Special
Advance Loan, the initial Revolving Loan, and to issue or cause to be issued the
initial Letter of Credit, is subject to the satisfaction or waiver on or before
the date hereof of the following conditions precedent:
(a) Lender shall have received each of the agreements,
opinions, reports, approvals, consents, certificates and other documents set
forth on the closing document list attached hereto as Schedule 17(a) (the
--------------
"Closing Document List");
(b) Since June 30, 2001, no event shall have occurred which
has had or could reasonably be expected to have a Material Adverse Effect on any
Obligor, as determined by Lender in its sole but reasonable discretion;
(c) Lender shall have received payment in full of all fees and
expenses payable to it by Borrower or any other Person in connection herewith,
on or before disbursement of the initial Loans hereunder;
(d) Lender shall have determined that immediately after giving
effect to (A) the making of the initial Loans, including without limitation the
Special Advance Loan, Term Loan and the Revolving Loans, if any, requested to be
made on the date hereof, (B) the issuance of the initial Letter of Credit, if
any, requested to be made on such date, (C) the payment of all fees due upon
such date and (D) the payment or reimbursement by Borrower of Lender for all
closing costs and expenses incurred in connection with the transactions
contemplated hereby, and assuming all of Borrower's trade payables and
outstanding debt which remain unpaid more than thirty (30) days after the due
dates thereof on the date of determination, are paid by drawing additional
Revolving Loans, on a pro forma basis, availability of Borrower to borrow
additional Revolving Loans shall not be less than Two Million, Two Hundred
Thousand and No/100 Dollars ($2,200,000); and
(e) The Obligors shall have executed and delivered to Lender
all such other documents, instruments and agreements which Lender determines are
reasonably necessary to consummate the transactions contemplated hereby,
including without limitation, a Covenant Compliance Certificate in the form
attached hereto as Exhibit B, which certificate will support the Special Advance
---------
Loan, Term Loan and the Borrowing Base calculation.
(f) Lender shall have approved, in its sole but reasonable
discretion, all title, survey, zoning and other due diligence matters relating
to the Real Property.
18. INDEMNIFICATION.
---------------
Borrower agrees to defend (with counsel satisfactory to
Lender), protect, indemnify and hold harmless Lender, each affiliate or
subsidiary of Lender, and each of their respective officers, directors,
employees, attorneys and agents (each an "Indemnified Party") from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, claims, costs, expenses and disbursements of any kind or
nature (including, without limitation, the disbursements and the reasonable fees
of counsel for each Indemnified
-44-
Party in connection with any investigative, administrative or judicial
proceeding, whether or not the Indemnified Party shall be designated a party
thereto), which may be imposed on, incurred by, or asserted against, any
Indemnified Party (whether direct, indirect or consequential and whether based
on any federal, state or local laws or regulations, including, without
limitation, securities laws and regulations, Environmental Laws and commercial
laws and regulations, under common law or in equity, or based on contract or
otherwise) in any manner relating to or arising out of this Agreement or any
Other Agreement, or any act, event or transaction related or attendant thereto,
the making or issuance and the management of the Loans or any Letters of Credit
or the use or intended use of the proceeds of the Loans or any Letters of
Credit; provided, however, that Borrower shall not have any obligation
hereunder to any Indemnified Party with respect to matters caused by or
resulting from the willful misconduct or gross negligence of such Indemnified
Party. To the extent that the undertaking to indemnify set forth in the
preceding sentence may be unenforceable because it is violative of any law or
public policy, Borrower shall satisfy such undertaking to the maximum extent
permitted by applicable law. Any liability, obligation, loss, damage, penalty,
cost or expense covered by this indemnity shall be paid to each Indemnified
Party on demand, and, failing prompt payment, shall, together with interest
thereon at the highest rate then applicable to Loans hereunder from the date
incurred by each Indemnified Party until paid by Borrower, be added to the
Liabilities of Borrower and be secured by the Collateral. The provisions of
this Section 18 shall survive the satisfaction and payment of the other
----------
Liabilities and the termination of this Agreement.
19. NOTICE.
------
All written notices and other written communications with
respect to this Agreement shall be sent by ordinary, certified or overnight
mail, by telecopy or delivered in person, and in the case of Lender shall be
sent to it at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, attention:
Xxxxx X. Xxxx, facsimile number: (000) 000-0000, and in the case of Borrower
shall be sent to it at its principal place of business set forth on Exhibit A
---------
hereto or as otherwise directed by Borrower in writing. All notices shall be
deemed received upon actual receipt thereof or refusal of delivery.
20. CHOICE OF GOVERNING LAW; CONSTRUCTION; FORUM
--------------------------------------------
SELECTION.
---------
This Agreement and the Other Agreements are submitted by
Borrower to Lender for Lender's acceptance or rejection at Lender's principal
place of business as an offer by Borrower to borrow monies from Lender now and
from time to time hereafter, and shall not be binding upon Lender or become
effective until accepted by Lender, in writing, at said place of business. If so
accepted by Lender, this Agreement and the Other Agreements shall be deemed to
have been made at said place of business. THIS AGREEMENT AND THE OTHER
AGREEMENTS SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS AS TO INTERPRETATION, ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT, AND
IN ALL OTHER RESPECTS, INCLUDING, WITHOUT LIMITATION, THE LEGALITY OF THE
INTEREST RATE AND OTHER CHARGES, BUT EXCLUDING PERFECTION OF THE SECURITY
INTERESTS IN COLLATERAL LOCATED OUTSIDE OF THE STATE OF ILLINOIS,
-45-
WHICH SHALL BE GOVERNED AND CONTROLLED BY THE LAWS OF THE RELEVANT JURISDICTION
IN WHICH SUCH COLLATERAL IS LOCATED. If any provision of this Agreement shall
be held to be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or remaining provisions of
this Agreement.
To induce Lender to accept this Agreement, Borrower
irrevocably agrees that, subject to Lender's sole and absolute election, ALL
ACTIONS OR PROCEEDINGS IN ANY WAY, MANNER OR RESPECT, ARISING OUT OF OR FROM OR
RELATED TO THIS AGREEMENT, THE OTHER AGREEMENTS OR THE COLLATERAL SHALL BE
LITIGATED IN COURTS HAVING SITUS WITHIN THE CITY OF CHICAGO, STATE OF ILLINOIS.
BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR
FEDERAL COURTS LOCATED WITHIN SAID CITY AND STATE. Borrower hereby irrevocably
appoints and designates the Secretary of State of Illinois, whose address is
Springfield, Illinois (or any other person having and maintaining a place of
business in such state whom Borrower may from time to time hereafter designate
upon ten (10) days written notice to Lender and whom Lender has agreed in its
sole but reasonable discretion in writing is satisfactory and who has executed
an agreement in form and substance satisfactory to Lender agreeing to act as
such attorney and agent), as Borrower's true and lawful attorney and duly
authorized agent for acceptance of service of legal process. Borrower agrees
that service of such process upon such person shall constitute personal service
of such process upon Borrower. BORROWER HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
TRANSFER OR CHANGE THE VENUE OF ANY LITIGATION BROUGHT AGAINST BORROWER BY
LENDER IN ACCORDANCE WITH THIS SECTION.
21. MODIFICATION AND BENEFIT OF AGREEMENT.
-------------------------------------
This Agreement and the Other Agreements may not be modified,
altered or amended except by an agreement in writing signed by Borrower or such
other person who is a party to such Other Agreement and Lender. Borrower may not
sell, assign or transfer this Agreement, or the Other Agreements or any portion
thereof, including, without limitation, Borrower's rights, titles, interest,
remedies, powers or duties hereunder and thereunder. Borrower hereby consents to
Lender's sale, assignment, transfer or other disposition, at any time and from
time to time hereafter, of this Agreement, or the Other Agreements, or of any
portion thereof, or participations therein, including, without limitation,
Lender's rights, titles, interest, remedies, powers and/or duties and agrees
that it shall execute and deliver such documents as Lender may request in
connection with any such sale, assignment, transfer or other disposition.
Provided that the Maximum Loan Limit does not increase above the amount in
effect on the original date of this Agreement, Lender agrees that it will not
sell any interests or participations in the Loans or in this Agreement without
Borrower's consent, which consent will not be unreasonably withheld, conditioned
or delayed, to more than three (3) participants (expressly excluding any
participations or interests transferred to any Person affiliated with Lender or
to any Person acquiring all or substantially all of Lender's assets).
-46-
22. HEADINGS OF SUBDIVISIONS; RECITALS.
----------------------------------
The headings of subdivisions in this Agreement are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of this Agreement. The recitals to this Agreement are hereby
certified by the Borrower to be true, correct and accurate, and are hereby
incorporated into the body of this Agreement.
23. POWER OF ATTORNEY.
-----------------
Borrower acknowledges and agrees that its appointment of
Lender as its attorney and agent-in-fact for the purposes specified in this
Agreement is an appointment coupled with an interest and shall be irrevocable
until all of the Liabilities are satisfied and paid in full and this Agreement
is terminated.
24. CONFIDENTIALITY.
Borrower and Lender hereby agree and acknowledge that any and
all information relating to Borrower which is (i) furnished by Borrower to
Lender (or to any affiliate of Lender); and (ii) non-public, confidential or
proprietary in nature, shall be kept confidential by Lender or such affiliate in
accordance with applicable law; provided, however, that such information and
other credit information relating to Borrower may be distributed by Lender or
such affiliate to Lender's or such affiliate's directors, officers, employees,
attorneys, affiliates, assignees, participants, auditors, agents and regulators,
and upon the order of a court or other governmental agency having jurisdiction
over Lender or such affiliate, to any other party. Borrower and Lender further
agree that this provision shall survive the termination of this Agreement.
Notwithstanding the foregoing, Borrower hereby consents to Lender publishing a
tombstone or similar advertising material relating to the financing transaction
contemplated by this Agreement.
25. COUNTERPARTS.
This Agreement and any amendments, waivers, consents or
supplements may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which, when so executed and
delivered, shall be deemed an original, but all of which counterparts together
shall constitute but one agreement.
26. ELECTRONIC SUBMISSIONS.
----------------------
Upon not less than thirty (30) days' prior written notice (the
"Approved Electronic Form Notice"), Lender may permit or require that any of the
documents, certificates, forms, deliveries or other communications, authorized,
required or contemplated by this Agreement or the Other Agreements, be submitted
to Lender in "Approved Electronic Form" (as hereafter defined), subject to any
reasonable terms, conditions and requirements in the applicable Approved
Electronic Forms Notice. For purposes hereof "Electronic Form" means e-mail,
e-mail attachments, data submitted on web-based forms or any other communication
method that delivers machine readable data or information to Lender, and
"Approved Electronic Form" means an Electronic Form that has been approved in
writing by Lender (which approval has not been revoked or modified by Lender in
its sole and absolute discretion) and sent to
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Borrower in an Approved Electronic Form Notice. Except as otherwise
specifically provided in the applicable Approved Electronic Form Notice, any
submissions made in an applicable Approved Electronic Form shall have the same
force and effect that the same submissions would have had if they had been
submitted in any other applicable form authorized, required or contemplated by
this Agreement or the Other Agreements.
27. WAIVER OF JURY TRIAL; OTHER WAIVERS.
-----------------------------------
(a) BORROWER AND LENDER EACH HEREBY WAIVES ALL RIGHTS TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO
THIS AGREEMENT, ANY OF THE OTHER AGREEMENTS, THE LIABILITIES, THE COLLATERAL,
ANY ALLEGED TORTIOUS CONDUCT BY BORROWER OR LENDER OR WHICH, IN ANY WAY,
DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO THE RELATIONSHIP BETWEEN
BORROWER AND LENDER. IN NO EVENT SHALL LENDER BE LIABLE FOR LOST PROFITS OR
OTHER SPECIAL OR CONSEQUENTIAL DAMAGES.
(b) Borrower hereby waives demand, presentment, protest and
notice of nonpayment, and further waives the benefit of all valuation, appraisal
and exemption laws.
(c) Borrower hereby waives the benefit of any law that would
otherwise restrict or limit Lender or any affiliate of Lender in the exercise of
its right, which is hereby acknowledged and agreed to, to set-of against the
Liabilities, without notice at any time hereafter, any indebtedness, matured or
unmatured, owing by Lender or such affiliate of Lender to Borrower, including,
without limitation any deposit account at Lender or such affiliate.
(d) BORROWER HEREBY WAIVES ALL RIGHTS TO NOTICE AND HEARING OF
ANY KIND PRIOR TO THE EXERCISE BY LENDER OF ITS RIGHTS TO REPOSSESS THE
COLLATERAL OF BORROWER WITHOUT JUDICIAL PROCESS OR TO REPLEVY, ATTACH OR LEVY
UPON SUCH COLLATERAL.
(e) Lender's failure, at any time or times hereafter, to
require strict performance by Borrower of any provision of this Agreement or any
of the Other Agreements shall not waive, affect or diminish any right of Lender
thereafter to demand strict compliance and performance therewith. Any suspension
or waiver by Lender of an Event of Default under this Agreement or any default
under any of the Other Agreements shall not suspend, waive or affect any other
Event of Default under this Agreement or any other default under any of the
Other Agreements, whether the same is prior or subsequent thereto and whether of
the same or of a different kind or character. No delay on the part of Lender in
the exercise of any right or remedy under this Agreement or any Other Agreement
shall preclude other or further exercise thereof or the exercise of any right or
remedy. None of the undertakings, agreements, warranties, covenants and
representations of Borrower contained in this Agreement or any of the Other
Agreements and no Event of Default under this Agreement or default under any of
the Other Agreements shall be deemed to have been suspended or waived by Lender
unless such
-48-
suspension or waiver is in writing, signed by a duly authorized officer of
Lender and directed to Borrower specifying such suspension or waiver.
-49-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
GIBRALTAR PACKAGING GROUP, INC., NEIMAND INDUSTRIES, INC,
a Delaware corporation a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxx
------------------- -------------------
Title: Vice President Finance-Corporate Title Vice President
RIDGEPAK CORPORATION, LASALLE BUSINESS CREDIT, INC.,
an Illinois corporation a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxx
------------------- -----------------
Title: Vice President Title: Vice President
STANDARD PACKAGING AND PRINTING
CORP., a North Carolina
corporation
By: /s/ Xxxxx X. Xxxxxx
-------------------
Title: Vice President
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