EXHIBIT 10(c)
STANDSTILL AGREEMENT
THIS STANDSTILL AGREEMENT (the "Agreement") is made and
entered into as of the 22nd day of August, 1997, by and between BIG XXXXX
BRANDS, INC. (formerly known as Gemini Marketing Associates, Inc.), a Delaware
corporation ("Borrower") and MERCANTILE BUSINESS CREDIT, INC., a Missouri
corporation ("Lender").
WITNESSETH:
WHEREAS, Borrower is presently in default under that certain
Loan and Security Agreement dated June 25, 1992, as amended by that certain
First Amendment to Loan and Security Agreement dated June 14, 1993, that certain
Second Amendment to Loan and Security Agreement dated December 23, 1993, that
certain Third Amendment to Loan and Security Agreement dated April 4, 1994, that
certain Fourth Amendment to Loan and Security Agreement dated as of October 14,
1994, that certain Fifth Amendment to Loan and Security Agreement dated as of
November 4, 1994, that certain Sixth Amendment to Loan and Security Agreement
dated as of December 15, 1994, which Sixth Amendment was modified by that
certain letter agreement dated February 3, 1995, that certain Seventh Amendment
to Loan and Security Agreement dated June 30, 1995, that certain Eighth
Amendment to Loan and Security Agreement dated May 28, 1996, that certain
default letter dated December 4, 1996, that certain default letter dated April
24, 1997 and that certain default letter dated July 18, 1997 (as so amended, the
"Loan Agreement"; and
WHEREAS, as of the close of business on August 21, 1997, the
total indebtedness owing by Borrower to Lender under the Loan Agreement is
$4,545,561.54; and
WHEREAS, pursuant to the terms of (1) the Loan Agreement, and
(ii) that certain Trademark Collateral Assignment and Security Agreement dated
as of January 24, 1995 and executed by Borrower in favor of Lender and filed
with the U.S. Patent and Trademark office on March 14, 1995 (the "Trademark
Assignment," Lender retains a first priority security interest in all of
Borrower's now owned and/or hereafter arising, created or acquired accounts
receivable, inventory and general intangibles (including, but not limited to,
trademarks and trademark rights) to secure Borrower's payment of the
indebtedness owing to Lender under the Loan Agreement (the "Indebtedness"); and
WHEREAS, pursuant to the terms of that certain Security
Agreement - Equipment executed by Borrower in favor of Lender (the "Equipment
Security Agreement"), Lender retains a security interest in all of Borrower's
now owned and/or hereafter arising, created or acquired equipment to secure
Borrower's payment of the Indebtedness; and
WHEREAS, pursuant to the terms of that certain Deed of Trust
dated as of April 30, 1997 and executed by Borrower in favor of Xxxx X.
Xxxxxxxxxx, as trustee for Lender and recorded in Jasper County, Missouri in
Book 1532, Page 0716 (the "Deed of Trust"), Lender
has a lien on certain real estate and improvements thereon owned by Borrower and
located in Carthage, Missouri (the "Real Estate") to secure Borrower's payment
of the Indebtedness;
WHEREAS, as a result of Borrower's defaults under the Loan
Agreement, Borrower acknowledges that Lender may accelerate the Indebtedness and
exercise all of its remedies under the Loan Agreement, the Trademark Assignment,
the Equipment Security and the Deed of Trust (collectively, the "Loan
Documents"), and as otherwise provided by law; and
WHEREAS, Borrower has requested Lender to forebear from
enforcing its rights against Borrower or its assets for a certain period of time
and on certain conditions, as set forth herein; and
WHEREAS, Lender is willing to forebear in the enforcement of
its rights against Borrower and its assets, provided that such forbearance is on
the following terms and conditions and provided further that, except as
expressly provided below, such forbearance does not waive or otherwise prejudice
the rights of Lender;
NOW THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto agree as follows:
1. Terms of Standstill. During the "Standstill Period" (as
defined in Paragraph 2 hereof), the parties agree to act in accordance with the
following provisions:
(a) Amendments to Loan Agreement
(i) The following definitions of "Eligible Outlet Store
Inventory" and "Eligible Cap and Tee Shirt Inventory" are hereby added to
Paragraph 1.1 of the Loan Agreement as Paragraphs (QQ) and (RR):
"QQ) `Eligible Outlet Store Inventory' shall have the
meaning assigned thereto in Paragraph 6.1 hereof.
(RR) `Eligible Cap and Tee Shirt Inventory' shall have the
meaning assigned thereto in Paragraph 6.1 hereof."
(ii) Paragraph 2.5 of the Loan Agreement is hereby
deleted in its entirety and the following substituted in lieu thereof.
"2.5 Notwithstanding anything contained in this Agreement to
the contrary, (a) the principal portion of Borrower's Liabilities
outstanding at any one time prior to November 7, 1997 shall not
exceed $5,500,000; (b) the principal portion of Borrower's
Liabilities outstanding at any one time on and after November 7,
1997 shall not exceed $5,000,000; and (c) the principal portion
of Borrower's Liabilities outstanding at any one time and arising
solely under Paragraph 3.2 below with respect to advances against
Eligible Cap and Tee Shirt Inventory shall not exceed $100,000.
Lender in its sole and absolute discretion
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may at any time and from time to time, suspend the restrictions
imposed in this Paragraph."
(iii) Paragraph 3.2 of the Loan Agreement is hereby
deleted in its entirety and the following substituted in lieu thereof:
"Provided no Event of Default or Unmatured Event of Default shall
then exist or be created thereby, Lender shall loan to Borrower,
upon Borrower's execution and delivery to Lender of an initial
Designation of Inventory, the sum of up to (i) Thirty-Five
Percent (35%) of the "value" (hereinafter defined) therein
described of then existing and owned Eligible Raw Materials
Inventory, plus (ii) Sixty-Five Percent (65%) of the value
therein described of then existing and owned Eligible Finished
Goods Inventory, plus (iii) Thirty Percent (30%) of the value
therein described of then existing and owned Eligible Outlet
Store Inventory, plus (iv) Fifty Percent (50%) of the value
therein described of then existing and owned Eligible Cap and Tee
Shirt Inventory and upon Borrower's execution and delivery to
Lender of each subsequent Designation of Inventory, the sum of up
to (i) Thirty-Five Percent (35%) of the value therein described
of then existing and owned Eligible Raw Materials Inventory, (ii)
Sixty-Five Percent (65%) of the value therein described of then
existing and owned Eligible Finished Goods Inventory, (iii)
Thirty Percent (30%) of the value therein described of then
existing and owned Eligible Outlet Store Inventory and (iv) Fifty
Percent (50%) of the value therein described of then existing and
owned Eligible Cap and Tee Shirt Inventory, less a sum of money
equal to the portion of Borrower's Liabilities consisting of
principal then owed by Borrower to Lender on account of loans
theretofore made pursuant to this paragraph 3.2. The "value" of
Inventory shall mean the lesser of (a) Borrower's cost therefor,
determined on a first-in, first-out basis, or (b) the wholesale
market value thereof; less, in either case, any portion o
Borrower's corporate overhead which is attributed thereto. Lender
reserves the right, at any time or times hereafter during which
any Event of Default shall exist, in its sole and absolute
discretion, to reduce the percentage advance rates specified in
this Paragraph 3.2. Notwithstanding anything in this Paragraph
3.2 to the contrary, Lender may at any time and from time to
time, in Lender's solo and absolute discretion, loan to Borrower
more than the above stated percentages of the value of Eligible
Raw Materials Inventory, Eligible Finished Goods Inventory,
Eligible Outlet Store Inventory and/or Eligible Cap and Tee Shirt
Inventory, without notice to Borrower or any other Obligor;
provided, however, that no such over-advance shall establish a
custom or course of dealing or entitle Borrower to any subsequent
over-advance under the same or different circumstances."
On account of Borrower's use and/or consumption of inventory in
the ordinary course of its business and in generating and/or
creating Accounts, Borrower hereby irrevocably authorizes and
directs Lender in its sole and absolute discretion, to deduct
from each of the loans made by Lender pursuant to Paragraph 3.1
above, an amount of monies equal to the loans previously made
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against such Inventory used to create the Accounts and to apply
the same to that portion of Borrower's Liabilities consisting of
principal owed by Borrower to Lender on account of loans made by
Lender to Borrower pursuant to this Paragraph 3.2.
(iv) Paragraph 3.3 of the Agreement is hereby deleted
in its entirety.
(v) Paragraph 3.1(o) of the Agreement is hereby deleted
in its entirety.
(vi) Paragraphs 6.1, 6.2 and 6.3 of the Loan Agreement
are hereby deleted in their entirety and the following substituted in lieu
thereof:
"6.1 `Eligible Raw Materials Inventory' shall mean that
portion of Inventory which: (a) consists of raw materials, except
the following: boxes, buttons, rivets, cuffs, eyelets, hangers,
hangtags, xxxx labels, pocket flashers, size labels, sew in
labels and thread; (b) does not violate the negative covenants
and provisions of this Article and does satisfy the positive
covenants and provisions of this Article; (c) is not obsolete;
and (d) Lender has in good faith determined, in accordance with
Lender's customary business practices, is not unacceptable due to
age, type, category and/or quantity. `Eligible Finished Goods
Inventory' shall mean that portion of Inventory which: (a)
consists of finished goods except the following: (i) irregulars
and seconds; (ii) aprons; (iii) caps; (iv) outlet store
inventory; and (v) tee shirts; (b) does not violate the negative
covenants and provisions of this Article and does satisfy the
positive covenants and provisions of this Article; (c) is not
obsolete; and (d) Lender has in good faith determined, in
accordance with Lender's customary business practices, is not
unacceptable due to age, type, category and/or quantity.
`Eligible Outlet Store Inventory' shall mean that portion of
Inventory which is held for sale at Borrower's retail outlet
stores except the following: (a) irregulars and seconds; (b) does
not violate the negative covenants and provisions of this Article
and does satisfy the positive covenants and provisions of this
article; (c) is not obsolete; and (d) Lender has in good faith
determined, in accordance with Lender's customary business
practices is not unacceptable due to age, type, category and/or
quantity. `Eligible Cap and Tee Shirt Inventory' shall mean caps
and tee shirts except the following: (a) those held for sale at
Borrower's retail outlet stores; (b) irregulars and seconds; (c)
does not violate the negative covenants and provisions of this
Article and does satisfy the positive covenants and provisions of
this Article; (d) is not obsolete; and (e) Lender has in good
faith determined, in accordance with Lender's customary business
practices is not unacceptable due to age, type, category and/or
quantity. `Eligible Inventory' shall mean that portion of
Inventory which consists of Eligible Finished Goods Inventory,
Eligible Outlet Store Inventory and Eligible Cap and Tee Shirt
Inventory. Borrower represents and warrants to, and covenants and
agrees with, Lender that (i) the value of Eligible Raw Materials
Inventory is now and shall at all times hereafter be at least
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Two Hundred Eighty-Six Percent (286%) of the then principal
portion of Borrower's Liabilities represented by loans made by
Lender to Borrower against Eligible Raw Materials Inventory
pursuant to Paragraph 3.2 hereof, (ii) the value of Eligible
Finished Goods Inventory is now and shall at all times hereafter
be at least One Hundred Fifty-Four Percent (154%) of the then
principal portion of Borrower's Liabilities represented by loans
made by Lender to Borrower against Eligible Finished Goods
Inventory pursuant to Paragraph 3.2 hereof, (iii) the value of
Eligible Outlet Store Inventory is now and shall at all times
hereafter be at least Three Hundred Thirty-Three Percent (333%)
of the then principal portion of Borrower's Liabilities
represented by loans made by Lender to Borrower against Eligible
Outlet Store Inventory pursuant to Paragraph 3.2 hereof, and (iv)
the value of Eligible Cap and Tee Shirt Inventory is now and
shall at all times hereafter be at least Two Hundred Percent
(200%) of the then principal portion of Borrower's Liabilities
represented by loans made by Lender to Borrower against Eligible
Cap and Tee Shirt Inventory pursuant to Paragraph 3.2 hereof.
6.2 Borrower warrants and represents to and covenants with
Lender that (a) Inventory shall only be kept at the locations
specified on Exhibit "C" hereto; (b) Borrower, immediately upon
demand by Lender therefor, now and from time to time hereafter,
shall execute and deliver to Lender Designations of Inventory
specifying Borrower's costs of Inventory, Eligible Inventory,
Eligible Raw Materials Inventory, Eligible Finished Goods
Inventory, Eligible Outlet Store Inventory and Eligible Cap and
Tee Shirt Inventory and such other matters and information
relating to Inventory and Eligible Inventory as Lender may
request; (c) Borrower does now keep and hereafter at all times
shall keep correct and accurate records itemizing and describing
the kind, type, quality and quantity of Inventory therefor and
selling price thereof and the daily withdrawals therefrom and
additions available (during Borrower's usual business hours),
upon demand, to any of Lender's officers, employees or agents or
inspection and copying thereof; (d) all Inventory is now and
hereafter at all times shall be good and merchantable quality,
free from defects; (c) Inventory is not now and shall not at any
time or times hereafter be stored with a bailee, warehouseman or
similar party without Lender's prior written consent, and, in
such event Borrower will concurrently therewith cause any such
bailee, warehouseman or similar party to issue and deliver to
Lender, in form and substance acceptable to Lender, warehouse
receipts therefor in Lender's name; (f) any of Lender's officers,
employees or agents shall have the right, upon demand, now and at
any time or times hereafter during Borrower's usual business
hours, to inspect and examine Inventory and any other Collateral
and to check and test the same as to quality, quantity, value and
condition and Borrower agrees to use its best efforts to cause
its employees and agents to cooperate with Lender in this regard,
and after an Event of Default, to pay to Lender, on demand, all
of Lender's costs, fees and expenses in so doing; and (g) all
Inventory is now and shall at all times hereafter be subject to a
first priority perfected security interest in favor of Lender.
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6.3 In the event of a breach of any representation, warranty
or covenant with respect to the value of Eligible Raw Material
Inventory, Eligible Finished Goods Inventory, Eligible Outlet
Store Inventory and/or Eligible Cap and Tee Shirt Inventory
contained in Paragraph 6.1 above, Borrower shall immediately pay
to Lender an amount of monies sufficient to cure the same and/or
Lender, in its sole and absolute discretion, may pay to itself,
for the account of Borrower, from (i) future loans to be made by
Lender to Borrower and/or (ii) monies, reserves and proceeds
received or collected by Lender pursuant to Paragraphs 4.5 and/or
4.9 above, an amount necessary to satisfy (in whole or in part)
the foregoing requirement. Notwithstanding Paragraph 9.1 hereof,
if Borrower does not timely make such payment or if the monies
referred to in clauses (i) and (ii) above are not sufficient
therefor, the same shall be deemed an Event of Default by
Borrower under this Agreement. Notwithstanding anything in
Paragraph 6.1 or this Paragraph 6.3 to the contrary, Lender may,
at any time and from time to time in its sole and absolute
discretion, suspend or waive Borrower's compliance with the
representations, warranties and covenants with respect to the
value o Eligible Raw Materials Inventory, Eligible Finished Goods
Inventory, Eligible Outlet Store Inventory and/or Eligible Cap
and Tee Shirt Inventory contained in Paragraph 6.1 above, without
notice to Borrower or any other Obligor; provided, however that
no such suspension or waiver shall establish a custom or course
of dealing or entitle Borrower to any subsequent suspension or
waiver under the same or different circumstances."
(a) Lender. Lender covenants and agrees that it will:
(vii) Not file or join in the filing of any involuntary
Petition of Bankruptcy with respect to Borrower or otherwise initiate or
participate in any similar proceedings for the benefit of creditors, including
any proceeding for the appointment of a trustee, receiver, conservator, or
liquidator of Borrower or any portion of its assets;
(viii) Not seek to collect or enforce against Borrower
by litigation or otherwise payment of the Indebtedness, except as provided for
herein;
(ix) Except as provided for herein, not exercise or
enforce any right or remedy against borrower to which Lender would be entitled
under the terms of the Loan Documents by reason of any event of default or
termination occurring thereunder (which furtherance of exercise of enforcement
shall not, however, act as a waiver of Lender's right to enforce any such right
or remedy after termination of the Standstill Period);
(x) Not seek to attach, sequester or otherwise proceed
under the Loan Documents against any assets or property of Borrower;
(xi) Continue to make loan advances to Borrower on the
terms and conditions provided in the Loan Agreement up to the maximum amount for
Borrower's Liabilities provided for in Section 3 of the Loan Agreement, as
amended pursuant to the terms of this Standstill Agreement; and
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(c) Borrower. In consideration for Lender's agreement to forebear
in exercising its rights and remedies under the Loan Documents during the
Standstill Period, Borrower covenants and agrees:
(xii) Borrower shall retain a consultant and shall
continue to employ a consultant throughout the term of the Standstill Period and
shall permit Lender and its representatives free access to the consultant to
discuss the financial condition and business of Borrower;
(xiii) Borrower shall not sell, transfer or otherwise
dispose of any of its property or assets, other than sales of Inventory for cash
or on ordinary account in the ordinary course of Borrower's business, without
the prior written consent of Lender.
(xiv) Borrower shall devote its best efforts in an
honest and good faith attempt to refinance or recapitalize its business.
(xv) Borrower shall permit Lender and its
representatives to visit and/or inspect any of the properties, corporate books
and financial records of Borrower to audit the accounts receivable and inventory
of Borrower and to discuss the affairs, finances and accounts of Borrower with
any employees of Borrower and representatives of the consultant retained by
Borrower, all at such reasonable times and as often as Lender may reasonably
request;
(xvi) Borrower shall continue to provide to Lender with
all financial statements, reports and documents as required under the Loan
Documents; and
(xvii) Borrower shall comply with and fulfill all of
the additional covenants and other terms and conditions set forth in this
Agreement.
(xviii) Borrower covenants and agrees that (a) by
September 10, 1997, it will cause Big Xxxxx Global Limited ("BSGL") to fully
guaranty Borrower's payment of the Indebtedness and to grant to Lender a first
priority security interest in and to all of BSGL's right, title and interest in
and to those certain royalty payments due and owing to BSGL by Big Yellow
Corporation Limited ("Big Yellow") and the proceeds of the lawsuit filed by BSGL
to recover such royalty payments, and (b) it will cause BSGL to pay to Lender
any sums received from Big Yellow on account of such royalty payments.
2. Standstill Period.
(a) The Standstill Period shall commence upon the execution
of this Agreement and shall terminate at 5:00 p.m. (St. Louis time) on December
5, 1997.
(b) Notwithstanding the foregoing, the Standstill Period
shall terminate earlier upon the occurrence of any of the following events of
termination:
(i) The filing against Borrower of an involuntary
petition for relief under Title 11 of the United States Code, as now constituted
or hereafter amended, or any
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other applicable federal, state or foreign bankruptcy law or other similar law,
or the appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator, conservator or other similar official of Borrower, or of any
substantial part of the property of Borrower, or a petition requesting the
winding up of or liquidation of the affairs of Borrower;
(ii) The filing by Borrower of a petition or answer or
consent seeking relief under Title 11 of the United States Code, as now
constituted or hereafter amended, or any other applicable federal, state or
foreign bankruptcy law or other similar law, or the consent by Borrower to the
institution of proceedings thereunder or to the filing of any such petition or
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator, conservator or other similar official of
Borrower, or of any substantial portion of the property of Borrower;
(iii) The breach or violation by Borrower of any
covenant or provision of this Agreement;
(iv) If, at any time during the Standstill Agreement,
there are additional amounts outstanding under the Loan Agreement in excess of
the amounts available under Sections 3.1 and 3.2 of the Loan Agreement and
Paragraph 3 of this Agreement.
(v) Any further deterioration of Borrower's financial
condition, which, as determined by Lender, has a material adverse affect on
Borrower's financial position or operations, the collateral or Borrower's
ability to repay all of the Indebtedness to Lender; or
(vi) The payment by Borrower of all of the
Indebtedness, including, without limitation, all principal borrowers from Lender
under the Loan Agreement, this Agreement or otherwise, all interest accrued
thereon and any and all costs of liquidation and attorney's fees incurred by or
advanced by Lender.
3. Overadvance Reduction.
(a) Borrower and Lender agree that as of the close of
business on August 21, 1997, there was $1,230,728.11 outstanding under the Loan
Agreement in excess of the amounts available under Sections 3.1 and 3.2 of the
Loan Agreement (i.e. a $1,230,728.11 overadvance) (the "Overadvance").
Notwithstanding any prior course of dealing or anything contained in the Loan
Agreement or this Agreement to the contrary, the Overadvance shall not exceed
the following amounts during the following periods:
Week Beginning Maximum Amount of Overadvance
-------------- -----------------------------
August 25, 1997 $1,400,000
September 1, 1997 $1,500,000
September 8, 1997 $1,400,000
September 15, 1997 $1,400,000
September 22, 1997 $1,300,000
September 29, 1997 $1,200,000
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October 6, 1997 $1,100,000
October 13, 1997 $1,000,000
October 20, 1997 $ 900,000
October 27, 1997 $ 900,000
November 3, 1997 $ 900,000
November 10, 1997 $ 500,000
November 17, 1997 $ 500,000
November 24, 1997 $ 500,000
December 1, 1997 and thereafter $ 0
(b) In addition to the Overadvance reductions set forth in
subparagraph (a), the Overadvance shall be permanently reduced by the amount of
(i) any payments received by Borrower from KPR International, or (ii) any
payments received by BSGL from Big Yellow, which payments shall be immediately
paid to Lender.
(c) If, at any time, additional amounts are outstanding
under the Loan Agreement in excess of the amounts allowed under this Paragraph
and Sections 3.1 and 3.2 of the Loan Agreement, Borrower shall be considered to
be in default of the Loan Agreement and this Agreement.
4. Default Interest. From July 1, 1997 through the Standstill
Period, Borrower's Liabilities under the Loan Agreement and the Term Note shall
bear interest at a "default rate" of three percent (3%) over and above the Prime
Rate.
5. Release. Borrower hereby agrees to release, waive and acquit
Lender and any participant with Lender in the loans outstanding hereunder and
under the Loan Documents, together with their subsidiaries and affiliates, their
officers, directors, agents, employees, and servants, their successors and
assigns, and the insurers and underwriters of any of them from any and all
claims which Borrower has or may have asserted against Lender or any participant
with Lender under any of the Loan Documents or otherwise, whether such claims
resulted from alleged defaults, nonperformance, negligent performance or
otherwise.
6. Fees. Borrower shall pay to Lender an overadvance fee of
$150.00 per day for each and every day that there are amounts outstanding under
the Loan Agreement in excess of the amounts available under Sections 3.1 and 3.2
of the Loan Agreement (i.e. an "Overadvance").
7. Additional Covenants.
(a) Except as expressly provided for herein to the contrary
and except for Borrower's existing defaults which are acknowledged herein and
preserved hereby, Borrower covenants and agrees to continue to perform in
accordance with all of the terms, conditions, provisions, covenants, agreements,
representations and warranties made in the Loan Documents, and Borrower hereby
expressly ratifies and confirms the same.
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(b) Borrower shall notify Lender in writing of any default
hereunder or any other event causing the Standstill Period to terminate, such
notice to be delivered to Lender within twenty-four hours of Borrower or any
employee, officer, agent or affiliate of Borrower, having received such
knowledge or notice.
8. Representations and Warranties.
(a) Borrower hereby represents and warrants to Lender that
it has the legal power and ability to enter into and perform this Agreement,
that all corporate actions required of Borrower in connection with the
authorization, execution, delivery and performance of this Agreement have been
duly taken, and that when executed and delivered by Borrower, this Agreement
shall constitute the valid and binding obligation of Borrower.
(b) Borrower hereby expressly acknowledges its failure to
comply with various of the covenants contained in the Loan Agreement, and that
such failure was and continues to be an Event of Default as defined in the Loan
Agreement; and Borrower further hereby expressly acknowledges Lender's right to
take any and all actions and other remedies set forth in the Loan Documents and
as otherwise provided for by law immediately upon the termination of the
Standstill Period.
9. Miscellaneous.
(a) Notwithstanding any other provisions hereof, all of the
Indebtedness is presently due and will continue to be due and payable in full
until paid.
(b) Notwithstanding anything herein to the contrary, nothing
herein shall be construed as requiring Lender to extend the term of this
Agreement beyond the period set forth in Section 2 hereof.
(c) Any payments or repayments shall be applied by Lender to
the loans outstanding hereunder and/or under the Loan Agreement in such order
and in such amounts as Lender shall determine in its sole and absolute
discretion.
(d) Borrower hereby agrees to pay all reasonable fees and
expenses, including without limitation, reasonable attorneys fees incurred by
Lender or any participant with Lender in the negotiation, preparation, execution
and enforcement of this Agreement.
(e) This Agreement may not be modified in any manner except
by written agreement signed by all parties hereto.
(f) No course of dealings heretofore or hereafter between
Borrower and Lender or any failure or delay on the part of Lender in exercising
any rights or remedies under the Loan Agreement or this Agreement or existing by
law shall operate as a waiver of any right or remedy of Lender with respect to
Borrower's obligations under the Loan Documents, and no single or partial
exercise of any right or remedy hereunder shall operate as a waiver or
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preclusion to the exercise of any other rights or remedies Lender may have under
the Loan Documents.
(g) Notwithstanding anything herein to the contrary, nothing
herein shall be construed as a limitation or restriction against Lender's
enforcement of its rights in any proceeding described in Subsection 2(b) of this
Agreement.
(h) Whenever possible, each provision of this Agreement
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision and the remaining provisions of this Agreement.
(i) Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Loan Agreement.
(j) This Agreement shall be governed by and construed in
accordance with the laws of the State of Missouri applicable to contracts made
and to be wholly performed within such State.
(k) Notices required hereunder may be sent Certified Mail,
Return Receipt Requested, or hand delivered to the addresses shown below and
shall be effective upon delivery:
If to Borrower:
Big Xxxxx Brands, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
If to Lender:
Mercantile Business Credit, Inc.
000 X. Xxxxxxxxx, Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
10. ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT
OR TO FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT, INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT, ARE NOT ENFORCEABLE. TO PROTECT BORROWER AND LENDER FROM ANY
MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS REACHED BY BORROWER AND
LENDER COVERING SUCH MATTERS ARE CONTAINED IN THIS AGREEMENT AND THE LOAN
DOCUMENTS, WHICH TOGETHER CONSTITUTE A
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COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENTS BETWEEN BORROWER AND LENDER
EXCEPT AS BORROWER AND LENDER MAY LATER AGREE IN WRITING TO MODIFY. THIS
AGREEMENT AND THE LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING
BETWEEN THE PARTIES HERETO AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS
(ORAL OR WRITTEN) RELATING TO THE SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, the Parties hereto have caused this
Agreement to be duly executed as of August 22, 1997.
MERCANTILE BUSINESS CREDIT, INC.
By:
----------------------------
Title:
-------------------------
BIG XXXXX BRANDS, INC.
By:
----------------------------
Title:
-------------------------
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