EXHIBIT 10.11
LOAN AND SECURiTY AGREEMENT
This Agreement is between to undersigned Borrower and the undersigned
Lender concerning loans and other credit accommodations to be made by Lender to
Borrower.
SECTION 1. PARTIES
1.1 The "Borrower" is identified in Section 10.5(c) and its
successors and assigns. If more than one Borrower is specified in
Section 10.5(e), aU references to Borrower shall mean each of them,
jointly and severally, individually and collectively, and the
successors and assigns of each.
1.2 The "Lender" is The CIT Group/Credit Finance, Inc. and its
agents, designees, representatives, successors and assigns.
SECTION 2. LOANS AND OTHER CREDIT ACCOMMODATIONS
2.1 REVOLVING LOANS. Lender shall, subject to the terms and
conditions contained herein, make revolving loans to Borrower
("Revolving Loans") in amounts requested by Borrower from time
to time, but not in excess of the Net Availability existing
immediately prior to the making of to requested loan and
provided the requested loan would not cause the outstanding
Obligations to exceed the Maximum Credit.
(a) The "Maximum Credit" is set forth in Section 10.1(a).
(b) The "Gross Availability" is at any time (i) the
product of the outstanding amount of Eligible
Accounts, multiplied by the Eligible Accounts
Percentage set forth in Section 10.1(b), PLUS: (ii)
the product(s) obtained by multiplying the applicable
Eligible Inventory Percentage(s), if any, set forth
in Section 10.1(b) by the values (based on the lower
of cost, market or appraised value) of Eligible
Inventory, but the amount so added shall not exceed
any sublimits set forth in Section 10.1(c).
(c) The "Net Availability" shall be calculated at any
time as an amount equal to the Gross Availability
minus the aggregate amount of all then-outstanding
Obligations to Lender other than the then outstanding
principal balance of the Term Loan, if any
(d) "Eligible Accounts" are accounts created by Borrower
in the ordinary course of its business which are and
remain acceptable to Lender for lending purposes.
General criteria for Eligible Accounts are set forth
below but may be revised from time to time by Lender,
in its sole judgment on fifteen (15) days' prior
written notice to Borrower. Lender shall, in general,
deem and continue to deem accounts to be Eligible
Accounts if: (1) such accounts arise from bona fide
completed transactions and have not remained unpaid
for more than the number of days after the invoice
date set forth in Section 10.1(d); (2) the amounts of
the accounts
reported to Lender arc absolutely owing to Borrower
and payment is not conditional or contingent, (such
as consignments, guaranteed sales or right of return
or other similar terms); (3) the account debtor's
chief executive office or principal place of business
is located in the United States; (4) such accounts do
not arise from progress xxxxxxxx, retainages or xxxx
and hold sales; (5) there arc no contra
relationships, setoffs, counterclaims or disputes
existing with respect thereto and there are no other
facts existing or threatened which would impair or
delay the collectibility of all or any portion
thereof; (6) the goods giving rise thereto were not
at the time of the sale subject to any liens except
those permitted in this Agreement (7) such accounts
are not accounts with respect to which the account
debtor or any officer or employee thereof is an
officer, employee or agent of or is affiliated with
Borrower, directly or indirectly, whether by virtue
of family membership, ownership, control, management
or otherwise; (8) there has been compliance with the
Assignment of Claims Act or similar State or local
law, if applicable, if the account debtor is the
United States or any domestic governmental unit; (9)
Borrower has delivered to Lender such documents as
Lender may have requested pursuant to Section 53
hereof in connection with such accounts and Lender
shall have received verifications of such accounts,
satisfactory to it, if sent to the account debtors or
any other obligors or any bailees pursuant to Section
5.5 hereof; (10) there arc no facts existing or
threatened which might result in any adverse change
in the accound debtor's financial condition; (11)
accounts owed by an account debtor and its affiliates
do not represent more than twenty percent (20%) of
all otherwise Eligible Accounts (the amount exceeding
twenty percent (20%) shall not be eligible); (12) not
more than fifty percent (5 0%) of the accounts of an
account debtor or its affiliates owed to Borrower
remain unpaid after the invoice date for more than
the number of days set forth in Section 10.1 (d);
(13) such accounts are owed by account debtors whose
total indebtedness to Borrower does not exceed the
amount of any customer credit limits as established
from time to time on notice to Borrower (the amount
exceeding the credit limit shall not be eligible);
and (14) such accounts are owed by account debtors
doomed creditworthy at all times by Lender.
(e) "ELIGIBLE INVENTORY" is inventory owned by Borrower
which is and remains acceptable to Lender for lending
purposes and is located at one of the addresses set
forth in Section 10.5(e).
(f) Lender shall have a continuing right to reduce the
Gross Availability by implementing Reserves
("RESERVES"), and to increase and decrease such
Reserves from time to time, if and to the extent
that, in Lender's sole judgment, such Reserves are
necessary to protect Lender against any state of
facts which does, or would, with notice or passage of
time Or both, constitute an Event of Default or have
an adverse effect on any Collateral.
(g) If a voluntary or involuntary petition under the
Bankruptcy Code is filed against the Borrower, then
Lender need not make loans.
(h) Revolving Loans will not at any time exceed the Gross
Availability unless Lender has consented-
2.2 TERM LOAN. Lender shall make Term Loans to Borrower
on the terms and conditions set forth in Section 10.2
("TERM LOAN"). The Term Loan balance shall
automatically be accelerated and become due and
payable upon termination of this Agreement
2.3 ACCOMMODATIONS. Lender may, in its sole discretion,
issue or cause to be issued, from time to time at
Borrower's request and on terms and conditions and
for purposes saiisfactory to Lender, credit
accommodations consisting of letters of credit,
bankers' acceptances, merchandise purchase guaranties
or other guaranties or indemnities for Borrower's
account ("ACCOMMODATIONS"). Borrower shall execute
and perform additional agreements relating to the
Accommodations in form and substance acceptable to
Lender and the issuer of any Accomodations, all of
which shall supplement the rights and remedies
granted herein. Any payments made by Lender or any
affiliate of Lender in connection with the
Accommodations shall constitute additional Revolving
Loans to Borrower.
SECTION 3. INTEREST AND FEES
3.1 INTEREST.
(a) Interest on the Revolving Loans and Term Loans shall be payable by
Borrower on the first day of each month, calculated upon the closing daily
balances in the loan account of Borrower for each day during the immediately
preceding month, at the per annum rate set forth as the Interest Rate in Section
10.3(a). The Interest Rate shall increase or decrease by an amount equal to each
increase or decrease, respectively, in the Prime Rate (as defined below),
effective as of the date of each such change. On and after any Event of Default
or termination or non-renewal hereof, interest on all unpaid Obligations shall
accrue at a rate equal to two percent (2%) per annum in excess of the Interest
Rate otherwise payable until such time as all Obligation' are indefeasibly paid
in full (notwithstanding entry of any judgment against Borrower or the exercise
of any other right or remedy by Lender), and all such interest shall be payable
on demand. Interest shall in no month be less than the Interest Rate multiplied
by the Minimum Borrowing set forth in Section 10.1(e). In no event shall charges
constituting interest exceed the rate permitted under any applicable law or
regulation, and if any provision of this Agreement is in contravention of any
such law or regulation, such provision shall be deemed amended to conform
thereto
(b) The "PRIME RATE" is the rate of interest publicly announced by The
Chase Manhattan Bank in New York, New York, or its successors and assigns from
time to time as its prime rate.
3.2 FEES. Borrower shall pay to Lender:
(a) CLOSING FEE. At closing, payable in the amount set forth in Section
10.3(c).,
(b) FACILITY FEE. A Facility Fee (fully earned at closing or the
beginning of any renewal term) payable as set forth in Section 10.3(d).
(c) ACCOUNT SERVICING FEE. Monthly, on the first day of each month
during the initial and each renewal Term an Account Servicing Fee for
the immediately preceding month (or part thereof) in the amount set
forth in Section 10.3(e).
(d) UNUSED LINE FEE. Monthly, on the first day of each month, in
arrears, an Unused Line Fee for each month during the initial and each
renewal Term at the rate per annum set forth in Section 10.3(f),
calculated upon the amount, if any, by which the Maximum Credit
exceeds the greater of the Minimum Borrowing or the average outstanding
daily principal balance during the preceding month of all Revolving
Loans, Accommodations and any Term Loan.
SECTION 4. GRANT OF SECURITY INTEREST
4.1 GRANT OF SECURITY INTEREST. To secure the payment and performance
in full of all Obligations, Borrower hereby grants to Lender a continuing
security interest in and lien upon, and a right of setoff against, and Borrower
hereby assigns and pledges to Lender, all of the Collateral, including any
Collateral not deemed eligible for lending purposes.
4.2 "OBLIGATIONS" shall mean any and all Revolving Loans, Term Loans,
Accommodations and all other indebtedness, liabilities and obligations of every
kind, nature and description owing by Borrower to Lender and/or its afflulates,
including principal, interest, charges, fees and expenses, however evidenced,
whether as principal, surety, endorser, guarantor or otherwise, whether arising
under this Agreement or otherwise, whether now existing or hereafter arising,
whether arising before, during or after the initial or any renewal Term or after
the commencement of any case with respect to Borrower under the United States
Bankruptcy Code or any similar statute, whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary, liquidated
or unliquidated, secured or unsecured, original, renewed or extended and whether
arising directly or howsoever acquired by Lender including from any other entity
outright, conditionally or as collateral security, by assignment, merger with
any other entity, participations or interests of Lender in the obligations of
Borrower to others, assumption, operation of law, subrogation or otherwise and
shall also include all amounts chargeable to Borrower under this Agreement or in
connection with any of the foregoing.
4.3 "COLLATERAL" shall mean all of the following property of Borrower:
(a) All now owned and hereafter acquired right, title and interest of
Borrower in, to and in respect of all: accounts, interests in goods represented
by accounts, returned, reclaimed or repossessed goods with respect thereto and
rights as an unpaid vendor; contract rights; chattel paper; investment
property; general intangibles (including, but not limited to, tax and duty
refunds, registered and unregistered patents, trademarks, service marks,
copyrights, trade names, applications for the foregoing, trade secrets,
goodwill, processes, drawings, blueprints, customer lists, licenses, whether as
licensor or licensee, chosen in action and other claims, and existing and future
leasehold interests in equipment and fixtures); documents; instruments; letters
of credit,
bankers' acceptances or guaranties; cash moneys, deposits, securities, bank
accounts, deposit accounts, credits and other property now or hereafter held in
any capacity by Lender, its affiliates or any entity which, at any time,
participates in Lenders financing of Borrower or at any other depository or
other institution; agreements or property securing or relating to any of the
items referred to above;
(b) All now owned and hereafter acquired right, title and interest of
Borrower in, to and in respect of goods, including, but not limited to:
(i) All inventory, wherever located, whether now owned or
hereafter acquired, of whatever kind, nature or description,
including all raw materials, work-in-process, finished goods,
and materials to be used or consumed in Borrower's business;
and all names or marks affixed to or to be affixed thereto for
purposes of selling same by the seller, manufacturer, lessor
or licensor thereof;
(ii) All equipment and fixtures, wherever located, whether now
owned or hereafter acquired, including, without limitation,
all machinery, equipment, motor vehicies, furniture and
fixtures, and any and all additions, substitutions,
replacements (including spare parts), and accessions thereof
and thereto; and
(iii) All consumer goods, farm products, crops, timber,
minerals or the like (including oil and gas), wherever
located, whether now owned or hereafter acquired, of whatever
kind, nature or description;
(c) All now owned and hereafter acquired right, title and interests of
Borrower in, to and in respect of any personal property in or upon which
Borrower has or may hereafter have a security interest, lien or right of setoff,
(d) All present and future books and records relating to any of the
above including, without limitation, all computer programs, printed output and
computer readable data in the possession or control of the Borrower, any
computer service bureau or other third party; and
(e) All products and proceeds of the foregoing in whatever form and
wberever located, including, without limitation, all insurance proceeds and all
claims against third parties for loss or destruction of or damage to any of the
foregoing.
SECTION 5. COLLECTION AND ADMINISTRATION
5.1 COLLECTIONS. Borrower will, at its expense as Lender requests,
direct that all remittances and all other proceeds of accounts and other
Collateral be sent to a lock box designated by Lender, and deposited into a bank
account selected by Lender with arrangements with the bank providing that all
funds deposited in the bank account are to be transferred solely to Lender.
Borrower shall bear all risk of loss of any funds deposited into such account In
connection therewith, Borrower shall execute such lock box and bank account
agreements as Lender shall specify any collections or other proceeds received
by Borrower shall be held in trust for Lender and immediately remitted to Lender
in kind.
5.2 CHARGES TO LOAN ACCOUNT. At Lender's option, all payments of
principal, interest, fees, costs, expenses and other charges provided for in
this Agreement, or in any other agreement now or hereafter existing between
Lender and Borrower, may be charged on the date when due, as principal to any
loan account of Borrower maintained by Lender. Interest, fees for
Accommodations, the Unused Line Fee and any other amounts payable by Borrower to
Lender based on a per annum rate shall be calculated on the basis of actual days
elapsed over a 360-day year.
5.3 PAYMENTS. All Obligations shall be payable at Lender's Office set
forth in Section 10.5(a) or at Lender's bank designated in Section 10.5(b)
or at such other bank or place as Lender may expressly designate from time to
time for purposes of this Section. Lender shall apply all proceeds of accounts
or other Collateral received by Lender and all other payments in respect of the
Obligations to the Revolving Loans or to any other Obligations then due, in
whatever order or manner Lender shall determine. For purposes of determining
Gross Availability and Net Availability and for the calculation of the Minimum
Borrowing, remittances and other payments will be treated as credited to the
loan account of Borrower maintained by Lender and Collateral balances to which
they relate, upon the date of Lender's receipt of advice from Lender's bank that
such remittances or other payments have been credited to Lender's account or in
the case of remittances or other payments received directly in kind by Lender,
upon the date of Lender's deposit thereof at Lender's bank, subject to final
payment and collection. In computing interest charges, the loan account of
Borrower will be credited with remittances and other payments for the number of
days set forth in Section 10.3(b) after the day Lender has received advice of
receipt of remittances in Lender's account at Lender's Bank. For purposes of
this Agreement "Business Day" shall mean any day other than a Saturday, Sunday
or any other day on which Lender or banks located in states where Lender has its
offices, are authorized to close.
5.4 LOAN ACCOUNT STATEMENTS. Lender shall render to Borrower monthly a
loan account statement. Each statement shall be considered correct and binding
upon Borrower as an account stated, except to the extent that Lender receives,
within sixty (60) days after the mailing of such statement written notice from
Borrower of any specific exceptions by Borrower to that statement
5.5 DIRECT COLLECTIONS. Lender may, at any time, (a) notify any account
debtor that the accounts and other Collateral which includes a monetary
obligation have been assigned to Lender by Borrower and that payment thereof is
to be made to the order of and directly to Lender, (b) send, or cause to be sent
by its designee, requests (which may identify the sender by a pseudonym) for
verification by telephone, in writing or otherwise of accounts and other
Collateral directly to an account debtor or any other obligor or any bailee with
respect thereto, (c) demand, collect or enforce payment of any accounts or such
other Collateral, but without any duty to do so, and Lender shall not be liable
for any failure to collect or enforce payment thereof, (d) take or bring, in the
name of Lender or Borrower, all steps, actions, suits or proceedings deemed by
Lender necessary or desirable to effect collection of or other realization upon
the accounts and other Collateral, (e) after an Event of Default, change the
address for delivery of mail to Borrower and to receive and open mail addressed
to Borrower, and (f) after an Event of Default, extend the time of payment of,
compromise or settle for cash, credit, return of
merchandise, and upon any terms or conditions, and all accounts or other
Collateral which includes a monetary obligation and discharge or release the
account debtor or other obligor, without affecting any of the Obligations. At
Lender's request, all invoices and statements sent to any account debtor, other
obligor or bailee, shall state that the accounts and such other Collateral have
been assigned to Lender and are payable directly and only to Lender.
5.6 ATTORNEY-IN-FACT. Borrower hereby irrevocably appoints Lender as
Borrower's attorney-in-fact and authorizes Lender at Borrower's sole expense, to
exercise at any times in Lender's discretion all or any of the powers necessary
for Lender to obtain information about the Collateral or to enforce Lender's
rights.
5.7 LIABILITY. Borrower hereby releases and exculpates Lender, its
officers and employees from any liability arising from any acts under this
Agreement or in futherance thereof, except for gross negligence or willful
misconduct. Lender will not have any liability to Borrower for lost profits or
other special or consequential damages.
5.8 ADMINISTRATION OF ACCOUNTS. After written notice by Lender to
Borrower or without notice after an Event of Default, Borrower shall not, (a)
amend, modify, settle or compromise any of the accounts or any other Collateral
which includes a monetary obligation. (b) release in whole or in part any
account debtor or other person liable for the payment of any of the accounts or
any such other Collateral, or (c) grant any credits, discounts, allowances,
deductions, return authorizations or the like with respect to any of the
accounts or any such other Collateral.
5.9 DOCUMENTS. Borrower shall deliver to Lender, as Lender may request,
all documents, schedules, invoices, proofs of delivery, purchase orders,
statements, contracts and all other information evidencing or relating to the
Collateral, in form and substance satistkctory to Lender and duly executed by
Borrower. Without Limiting the provisions of Section 5.5, Borrower's granting of
credits, discounts, allowances, deductions, return authorizations or the like
will be promptly reported to Lender in writing. In no event shall any schedule
or confirmatory assignment (or the absence thereof or omission of any of the
accounts or other Collateral therefrom) limit or in any way be construed as a
waiver, limitation or modification of the security interests or rights of Lender
or the warranties, representations and covenants of Borrower under this
Agreement. Any documents, schedules, invoices or other paper delivered to Lender
by Borrower may be destroyed or otherwise disposed of by Lender six (6) months
after receipt by Lender, unless Borrower requests their return in writing in
advance and makes prior arrangements for their return at Borrower's expense.
5.10 ACCESS. Lender shall have access, prior to an Event of Default
during reasonable business hours and on or after an Event of Default at any
time, to all of the premises where Collateral is located for the purposes of
inspecting or copying the Collateral, and all Borrower's books and records.
Lender, at no charge, may use such of Borrower's personnel, equipment, including
computer equipment, programs, printed output and computer readable media,
supplies and premises for the collection of accounts and realization on other
Collateral as Lender, in its sole discretion, deems appropriate. Borrower hereby
irrevocably authorizes all accountants and third parties to disclose and deliver
to Lender at Borrower's expense all financial
information, books and records, work papers, management reports and other
infonuation in their possession regarding Borrower.
5.11 ENVIRONMENTAL AUDITS. From t~rnc to time, but not more frequently
than semi-annually (provided Borrower is not in default) as requested by Lender,
at the sole expense of Borrower, Borrower shall provide Lender, or its designee,
complete access to all of Borrower's facilities for the purpose of conducting an
environmental audit of such facilities as Lender may deem necessary.
SECTION 6. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
Borrower hereby represents, warrants and covenants to Lender the
following, the truth and accuracy of which, and compliance with which, shall be
continuing conditions of the making of loans or other credit accommodations by
Lender to Borrower:
6.1 FINANCIAL AND OTHER REPORTS. Borrower shall keep and maintain its
books and records in accordance with generally accepted accounting principles,
consistently applied. Borrower shall, at its expense, deliver to Lender (a) true
and complete monthly agings of its accounts receivable, accounts payable and
notes payable on or before the fifteenth (15th) day of each month; (b) weekly
inventory reports within 2 business days after the end of each week; and (c)
monthly internally prepared interim financial statements on or before the
twenty-fifth day (25th) of the following month. Annually, Borrower shall deliver
audited financial statements of Borrower accompanied by the report and opinion
thereon of independent certified public accountants acceptable to Lender, as
soon as available, but in no event later than ninety (90) days after the end of
Borrower's fiscal year. All of the foregoing shall be in such form and together
with such information with respect to the business of Borrower or any Guarantor,
as Lender may in each case request.
6.2 TRADE NAMES. Borrower may from time to time render invoices under
its trade names set forth in Section 10.5(g) and, Borrower represents that: (a)
each trade name does not refer to another corporation or other legal entity, (b)
all accounts and proceeds thereof (including any returned merchandise) invoiced
under any such trade names are owned exclusively by Borrower and (c) Lender may
receive, endorse and deposit to any loan account of Borrower maintained by
Lender all checks or other remittances made payable to any trade name of
Borrower representing payment with respect to such sales or services.
6.3 LOSSES. Borrower shall promptly notify Lender in writing of any
loss, damage, investigation, action, suit, proceeding or claim relating to a
material portion of the Collateral or which may result in any material adverse
change in Borrower's business, assets, liabilities or condition, financial or
otherwise.
6.4 BOOKS AND RECORDS. Borrowers books and records concerning accounts
and its chief executive office are and shall be maintained only at the address
set forth in Section 10.5(d). Borrower's only other places of business and the
only other locations of Collateral, if any, are and shall be the addresses set
forth in Sections 10.5(e) and (1) hereof, except Borrower
may change such locations or open a new place of business after thirty (30)
days prior written notice to Lender. Borrower shall execute and deliver or cause
to be executed and delivered tO Lender such financing statements, amendments,
financing documents and security and other agreements as Lender may reasonably
require.
6.5 TITLE. Borrower has and at all times will continue to have good and
marketable title to all of the Collateral, free and clear of all liens, security
interests, claims or encumbrances of any kind except in favor of Lender and
except, if any, those set forth on Schedule A hereto.
6.6 DISPOSITION OF ASSETS. Borrower shall not directly or indirectly;
(a) sell, lease, transfer, assign, abandon or otherwise dispose of any part of
the Collateral or any material portion of its other assets (other than sales of
inventory to buyers in the ordinary course of business) or (b) consolidate with
or merge with or into any other entity, or permit any other entity to
consolidate with or merge with or into Borrower or (c) form or acquire any
interest in any firm, corporation or other entity.
6.7 INSURANCE. Borrower shall at all times maintain, with financially
sound and reputable insurers, adequate insurance (including, without limitation,
at the option of Lender, earthquake and flood insurance) with respect to the
Collateral and other assets. All such insurance policies shall be in such form,
substance, amounts and coverage as may be satisfactory to Lender and shall
provide for thirty (30) days' prior written notice to Lender of cancellation or
reduction of coverage. Lender may obtain at Borrower's expense, any such
insurance should Borrower fai1 to do so and adjust or settle any claim or other
matter under or arising pursuant to such insurance or to amend or cancel such
insurance. Borrower shall provide evidence of such insurance and a lender's loss
payable endorsement satisfactory to Lender. Borrower shall deliver to Lender, in
kind, all instruments representing proceeds of insurance received by Borrower.
Lender may apply any insurance proceeds received at any time to the cost of
repairs to or replacement of any portion of the Collateral and/or, at Lender's
option, to payment of or a security for any of the Obligations in any order or
manner as Lender determines.
6.8 COMPLIANCE WITH LAWS. Borrower is and at all times will continue to
be in compliance with the requirements of all material laws, rules, regulations
and orders of any governmental authority relating to its business (including
laws, rules, regulations and orders relating to income, withholding, excise,
property and social security taxes, minimum wages, employee retirement and
welfare benefits, employee health and safety, or environmental matters) and all
material agreements or other instruments binding on Borrower or its property.
Borrower shall pay and discharge all taxes, assessments and governmental charges
against Borrower or any Collateral when due, unless the same are being contested
in good faith. Lender may establish Reserves for the amount contested and
penalties which may accrue thereon.
6.9 ACCOUNTS. With respect to each account deemed an Eligible Account,
except as reported in writing to Lender, Borrower has no knowledge that any of
the criteria for eligibility are not or are no longer satisfied and the
Eligibility criteria will continue to be satisfied. All statements made and all
unpaid balances and other information appearing in the invoices, agreements,
proofs of rendition of services and delivery of goods and other documentation
relating to the accounts, and all confirmatory assignments, schedules,
statements of account and
books and records with respect thereto, are true and correct and in all respects
WHAT they purport to be.
6.10 EQUIPMENT With respect to Borrower's equipment, Borrower shall
keep the equipment in good order and repair, and in running and marketable
condition, ordinary wear and tear excepted.
6.11 FINANCIAL COVENANTS. Borrower shall at all times maintain working
capital and net worth (each as determined in accordance with generally accepted
accounting principles, in effect on the date hereof consistently applied) in the
amounts set forth in Section 10.4(a) and (b) respectively and Borrower shall
not, directly or indirectly, expend or commit to expend, for fixed or capital
assets (including capital lease obligations) an amount in excess of the capital
expenditure limit set forth in Section 10.4(c) in any fiscal year of Borrower.
6.12 AFFILIATED TRANSACTIONS. Borrower will not, directly or
indirectly: (a) lend or advance money or property to, guarantee or assume
indebtedness of, or invest (by capital contribution or otherwise) in any person,
firm, corporation or other entity; or (b) declare, pay or make any dividend,
redemption or other distribution on account of any shares of any class of stock
of Borrower now or hereafter outstanding; or (c) make any payment of the
principal amount of or interest on any indebtedness owing to any officer,
director, shareholder, or affiliate of Borrower; or (d) make any loans or
advances to any officer, director, employee, shareholder or affiliate of
Borrower; or (e) enter into any sale, lease or other transaction with any
officer, director, employee, shareholder or affiliate of Borrower on terms that
are less favorable to Borrower than those which might be obtained at the time
from persons who are not an officer, director, employee, shareholder or
affiliate of Borrower.
6.13 FEES AND EXPENSES. Borrower shall pay, on Lenders demand, all
costs, expenses, filing fees and taxes payable in connection with the
preparation, execution, delivery, recording, administration, collection,
liquidation, enforcement and defense of the Obligations, Lender's rights in the
Collateral, this Agreement and all other existing and fUture agreements or
documents contemplated herein or related hereto, including any amendments,
waiver;, supplements or consents which may hereafter be made or entered into in
respect hereof, or in any way involving claims or defense asserted by Lender or
claims or defense against Lender asserted by Borrower, any guarantor or any
third party directly or indirectly arising out of or related to the relationship
between Borrower and Lender or any guarantor and Lender, including, but not
limited to the following, whether incurred before, during or after the initial
or any renewal Term or after the commencement of any case with respect to
Borrower or any guarantor under the United States Bankruptcy Code or any similar
statute: (a) all costs and expenses of filing or recording (including Uniform
Commercial Code financing statement filing taxes and fees, documentary taxes,
intangibles taxes and mortgage recording taxes and fees, if applicable); (b) all
title insurance and other insurance premiums, appraisal fees, fees incurred in
connection with any environmental report, audit or survey and search fees; (c)
all fees as then in effect relating to the wire transfer of loan proceeds and
other funds and fees then in effect for returned checks and credit reports; (d)
all expenses and costs heretofore and from time to time hereafter incurred by
Lender during the course of periodic field examinations of the Collateral and
Borrowers operations including field examiner travel, food and lodging, plus a
per diem charge at the rate set forth in Section 10.3(g) for Lender's examiners
in the field and office; and (e) the costs,
disbursements and fees of in-house and outside counsel to Lender, including but
not limited to such fees and disbursements incurred as a result of a workout,
restructuring, reorganization, liquidation, insolvency proceeding or litigation
between the parties hereto, any third party and in any appeals arising
therefrom.
6.14 FURTHER ASSURANCES. At the request of Lender, at any time and from
time to time, at Borrower's sole expense, Borrower shall execute and deliver or
cause to be executed and delivered to Lender, such agreements, documents and
instruments, including waivers, consents and subordination agreements from
mortgagees or other holders of security interests or liens, landlords or
bailees, and do or cause to be done such further acts as Lender, in its
discretion, deem necessary or desirable to create, preserve, perfect or validate
any security interest of Lender in the Collateral and otherwise to effectuate
the provisions and purposes of this Agreement. Borrower hereby authorizes Lender
to file financing statements or amendments against Borrower in favor of Lender
with respect to the Collateral, without Borrower's signature and to file as
financing statements any carbon, photographic or other reproductions of this
Agreement or any financing statements signed by Borrower.
6.15 ENVIRONMENTAL CONDITION. None of Borrower's properties or assets
has ever been designated or identified in any manner pursuant to any
environmental protection statute as a hazardous waste or hazardous substance
disposal site, or a candidate for closure pursuant to any environmental
protection statute. No lien arising under any environmental protection statute
has attached to any revenues or to any real or personal property owned by
Borrower. Borrower has not receive a summons, citation, notice, or directive
from the Environmental Protection Agency or any other federal or state
governmental agency any action or omission by Borrower resulting in the
releasing, or otherwise exposing of hazardous waste or hazardous substances into
the environment. Borrower is and will continue to be in compliance (in all
material respects) with all statutes, regulations, ordinances and other legal
requirements pertaining to the production, storage, handling, treatment,
release, transportation or disposal of any hazardous waste or hazardous
substance.
6.16 YEAR 2000 COMPLIANCE. The Borrower shall take all action necessary
to assure that its computer-based systems are able to effectively process data
including dates and date sensitive functions. The Borrower represents and
warrants that the Year 2000 problem will not result in a material adverse effect
on the Borrower's business condition. Upon request, the Borrower shall provide
assurance acceptable to the Lender that the Borrower's computer systems and
software are or will be Year 2000 compliant on a timely basis. The Borrower
shall immediately advise Lender in writing of any material changes in the
Borrower's Year 2000 plan, timetable or budget.
6.17 STATE OF INCORPORATION. If Borrower is a corporation, it is duly
organized, existing and in good standing under the laws of the state set forth
in Section 10.5(h).
SECTION 7. EVENTS OF DEFAULT AND REMEDIES
7.1 EVENTS OF DEFAULT. All Obligations shall be immediately due and
payable, without notice or demand, and any provisions of this Agreement as to
future loans and credit
accommodations by Lender shall terminate automatically, upon the termination or
non-renewal of this Agreement or, at Lender's option, upon or at any time after
the occurrence or existence of arty one or more of the following "Events of
Default":
(a) Borrower fails to pay when due any of the Obligations or fails
to perform any of the terms of this Agreement or any other
existing or future financing, security or other agreement
between Borrower and Lender or any affiliate of Lender;
(b) Any representation, warranty or statement of fact made by
Borrower to Lender in this Agreement or any other agreement,
schedule, confirmatory assignment or otherwise, or to any
affiliate of Lender, shall prove inaccurate or misleading;
(c) Any guarantor revokes, terminates or fails to perform any of
the terms of any guaranty, endorsement or other agreement of
such party in favor of Lender or any affiliate of Lender;
(d) Any judgment or judgments aggregating in excess of the amount
set forth in Section 10.5 (1) or any injunction or attachment
is obtained against Borrower or any guarantor, which remains
unstayed for a period of ten (10) days or is enforced:
(e) Borrower or any guarantor dies or ceases to exist or the usual
business of Borrower or any guarantor ceases or us suspended;
(f) Any change in the chief executive officer, chief operating
officer, or controlling ownership of Borrower;
(g) Borrower or any guarantor becomes Insolvent, makes an
assignment for the benefit of creditors, makes or sends
notice of a bulk transfer or calls a general meeting of its
creditors or principal creditors;
(h) Any petition or application for any relief under the
bankruptcy laws of the United States now or hereafter in
effect or under any insolvency, reorganization. receivership,
readjustment of debt, dissolution or liquidation Jaw or
statute of any jurisdiction now or hereafter in effect
(whether at law or in equity) is filed by or against Borrower
or any guarantor;
(i) The indictment or threatened indictment of Borrower or any
guarantor under any criminal stature, or commencement or
threatened commencement of criminal or civil proceedings
against Borrower or any guarantor, pursuant to which statute
or proceedings the penalties or remedies sought or available
include forfeiture of any of the property of Borrower or such
guarantor which Lender believes may have a material adverse
effect on the Collateral or Borrower's business;
(j) Any default or event of default occurs on the part of Borrower
under any material agreement, document or instrument to which
Borrower is a party or by which Borrower or any of its
property is bound:
(k) Lender in good faith believes that either (i) the prospect of
payment or performance of the Obligations is impaired or (ii)
the Collateral is not sufficient to secure fully the
Obligations; or
(l) Any material change occurs in the nature or conduct of
Borrower's business.
7.2 REMEDIES. Upon the occurrence of an Event of Default and at any
time thereafter, Lender shall have all rights and remedies provided in this
Agreement, any other agreements between Borrower and Lender, the Uniform
Commercial Code and other applicable law, all of which rights and remedies may
be exercised without notice to Borrower, all such notices being hereby waived,
except such notice as is expressly provided for hereunder or is not waivable
under applicable law. All rights and remedies of Lender are cumulative and not
exclusive and are enforceable, in Lender's discretion, alternatively,
successively, or concurrently on any one or more occasions and in any order
Lender may determine. Without limiting the foregoing, Lender may (a) accelerate
the payment of all Obligations and demand immediate payment thereof to Lender,
(b) with or without judicial process or the aid Or assistance of others, enter
upon any premises on or in which any of the Collateral may be located and take
possession of the Collateral or complete processing, manufacturing and repair of
all or any portion of the Collateral, (c) require Borrower, at Borrowers
expense, to assemble and make available to Lender any part or all of the
Collateral at any place and time designated by Lender, (d) collect, foreclose,
receive, appropriate, setoff and realize upon any and all Collateral, and (e)
sell, lease, transfer, assign, deliver or otherwise dispose of any and all
Collateral (including, without limitation, entering into contracts with respect
thereto, by public or private sales at any exchange, broker's bond, any office
of Lender or elsewhere) at such prices or terms as Lender may deem reasonable,
for cash, upon credit or for future delivery, with the Lender having the right
to purchase the whole or any part of the Collateral at any such public sale, all
of the foregoing being free from any right or equity of redemption of Borrower,
which right or equity of redemption is hereby expressly waived and released by
Borrower. If any of the Collateral is sold or leased by Lender upon credit terms
or for finure delivery, the Obligations shall not be reduced as a result thereof
until payment therefor is finally collected by Lender. If notice of disposition
of Collateral is required by law, ten (10) days prior notice by Lender to
Borrower designating the time and place of any public sale or the time after
which any private sale or other intended disposition of Collateral is to be
made, shall be deemed to be reasonable notice thereof and Borrower waives any
other notice. In the event Lender institutes an action to recover any Collateral
or seeks recovery of any Collateral by way of prejudgment remedy, Borrower
waives the posting of any bond which might otherwise be required.
7.3 APPLICATION OF PROCEEDS. Lender may apply the cash proceeds of
Collateral other than accounts actually received by Lender from any sale, lease,
foreclosure or other disposition of the Collateral to payment of any of the
Obligations, in whole or in part and in such order as Lender may elect, whether
or not then due. Borrower shall remain liable to Lender for the payment of any
deficiency together with interest at the highest rate provided for herein and
all costs and expenses of collection or enforcement, including reasonable
attorneys' fees and legal expenses.
7.4 LENDER'S CURE OF THIRD PARTY AGREEMENT DEFAULT. Lender may, at its
option, cure any default by Borrower under any agreement with a third party or
pay or bond on appeal any judgment entered against Borrower, discharge taxes,
liens, security interests or other encumbrances at any time levied on or
existing with respect to the Collateral and pay any amount, incur any expense or
perform any act which, in Lender's sole judgment, is necessary or appropriate to
preserve, protect, insure maintain, or realize upon the Collateral. Lender may
charge Borrower's loan account for any amounts so expended, such amounts to be
repayable by Borrower on demand. Lender shall be under no obligation to effect
such cure, payment, bonding or discharge, and shall not, by doing so, be deemed
to have assumed any obligation or liability of Borrower.
SECTION 8 JURY TRIAL WAIVER; CERTAIN OTHER WAIVERS AND CONSENTS
8.1 JURY TRIAL WAIVER. BORROWER AND LENDER EACH WAIVE ALL RIGHTS TO
TRIAL BY JURY N ANY ACTION OR PROCEEDING INSTITUTED BY EITHER OF THEM AGAINST
THE OTHER WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS AGREEMENT, THE
OBLIGATIONS, THE COLLATERAL, ANY ALLEGED TORTIOTJS CONDUCT BY BORROWER OR
LENDER, OR, IN ANY WAY, DIRECTLY OR INDIRECTLY, ARISES OUT OF OR RELATES TO THE
RELATIONSHIP BETWEEN BORROWER AND LENDER. IN NO EVENT WILL LENDER BE LIABLE FOR
LOST PROFITS OR OTHER SPECIAL OR CONSEQUENTIAL DAMAGES.
8.2 COUNTERCLAIMS. Borrower waives all rights to interpose any claims,
deductions, setoffs or counterclaims of any kind, nature or description in any
action or proceeding instituted by Lender with respect to this Agreement, the
Obligations, the Collateral or any matter arising therefrom or relating thereto,
except compulsory counterclaims.
8.3 JURISDICTION. Borrower hereby irrevocably submits and consents to
the nonexclusive jurisdiction of the State and Federal Courts located in the
State in which the office of Lender designated in Section 10.5(a) is located and
any other State where any Collateral is located with respect to any action or
proceeding arising out of this Agreement, the Obligations, the Collateral or any
matter arising therefrom or relating thereto. In any such action or proceeding,
Borrower waives personal service of the summons and complaint or other process
and papers Therein and agrees that the service thereof may be made by mall
directed to Borrower at its chief executive office set forth herein or other
address thereof of which Lender has received notice as provided herein, service
to be deemed complete five (5) days after mailing, or as permitted under the
rules of either of said Courts. Any such action or proceeding commenced by
Borrower against Lender will be litigated only in a Federal Court located in the
district, or a State Court in the State and County, in which the office of
Lender designated in Section lO.5(a) is located and Borrower waives any
objection based on FORUM NON CONVENIENS AND any objection to venue in connection
therewith.
8.4 NO WAIVER BY LENDER. Lender shall not, by any act, delay, omission
or otherwise be deemed to have expressly or impliedly waived any of its rights
or remedies unless such waiver shall be in writing and signed by an authorized
officer of Lender. A waiver by Lender of any
right or remedy on any one occasion shall not be construed as a bar to or waiver
of any such right or remedy which Lender would otherwise have on any future
occasion, whether similar in kind or otherwise.
SECTION 9. TERM OF AGREEMENT; MISCELLANEOUS
9.1 Term. This Agreement shall only become effective upon execution and
delivery by Borrower and Lender and shall continue in full force and effect for
a term set forth in Section 10.6 from the date hereof and shall be deemed
automatically renewed, based upon all of the terms and provisions of this
Agreement for successive terms of equal duration thereafter unless terminated as
of the end of the initial or any renewal term (each a "Term") by either party
giving the other written notice at least sixty (60) days' prior to the end of
the then current Term.
9.2 EARLY TERMINATION. Borrower may also terminate this Agreement by
giving Lender at least thirty (30) days prior written notice and payment in full
of all of the Obligations as provided herein, including the Early Termination
Fee, unpaid Facility Fee and any other fees. Thirty days after receipt of such
early termination notice, Lender need not make any further loans or
accommodations. Lender shall also have the right to terminate this Agreement at
any time upon or after the occurrence of an Event of Default. If Lender
terminates this Agreement upon or after the occurrence of an Event of Default,
Borrower shall pay Lender forthwith, in full, payment of all Obligations,
including Early Termination Fee, Facility Fee and any other fees. In view of the
impracticality and extreme difficulty of ascertaining actual damages and by
mutual agreement of the parties as to a reasonable calculation of Lender's lost
profits, the Early Termination Fee shall be the percentage of the Maximum Credit
set forth in Section 10.3(h).
9.3 TERMINATION INDEMNITY DEPOSIT. Upon termination of this Agreement
by Borrower, as permitted herein, in addition to payment of all Obligations
which are not contingent, Borrower shall deposit such amount of cash collateral
as Lender determines is necessary to secure Lender from loss, cost, damage or
expense, including reasonable attorneys' fees, in connection with any open
Accommodations or remittance items or other payments provisionally credited to
the Obligations and/or to which Lender has not yet received final and
indefeasible payment.
9.4 Notices. Except as otherwise provided, all notices, requests and
demands hereunder shall be (a) made to Lender at its address set forth in
Section 10.5(a) and to Borrower at its chief executive office set forth in
Section 10.5(d), or to such other address as either party may designate by
written notice to the other in accordance with this provision, and (b) deemed to
have been given or made: if by hand, immediately upon delivery; if by telex,
telegram or telecopy (fax), immediately upon receipt; if by overnight delivery
service, one day after dispatch; and if by first class or certified mail, three
(3) days after mailing.
9.5 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable, such provision shall not affect this Agreement as a
whole, but this Agreement shall be construed as though it did not contain the
particular provision held to be invalid or unenforceable.
9.6 ENTIRE AGREEMENT AMENDMENTS; ASSIGNMENTS. This Agreement contains
the entire agreement of the parties as to the subject matter hereof, all prior
commitments, proposals and negotiations concerning the subject matter hereof
being merged herein. Neither this Agreement nor any provision hereof shall be
amended, modified or discharged orally or by course of conduct, but only by a
written agreement signed by an authorized officer of Lender. This agreement
shall be binding upon and inure to the benefit of each of the parties hereto and
their respective successors and assigns, except that any obligation of Lender
under this Agreement shall not be assignable nor inure to the successors and
assigns of Borrower.
9.7 DISCHARGE OF BORROWER. No termination of this Agreement shall
relieve or discharge Borrower of its Obligations, grants of Collateral, duties
and covenants hereunder or otherwise until such time as all Obligations to
Lender have been indefeasibly paid and satisfied in full, including, without
limitation, the continuation and survival in full force and effect of all
security interests and liens of Lender in and upon all then existing and
thereafter-arising or acquired Collateral and all warranties and waivers of
Borrower.
9.8 USAGE. All terms used herein which are defined in the Uniform
Commercial Code shall have the meanings given therein unless otherwise defined
in this Agreement and all references to the singular or plural herein shall also
mean the plural or singular, respectively.
9.9 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State in which the office of Lender set forth in
Section 10.5(a) below is located.
SECTION 10. ADDITIONAL DEFINITIONS AND TERMS
10.1 (a) MAXIMUM CREDIT:
(b) Gross Availability Formulas:
Eligible Accounts Percentage: 80% provided that the Dilution
Percentage does not exceed 7%. The Dilution Percentage is the
sum of Borrower's credits, allowances, discounts, write-offs,
contra-accounts and offsets and deduction, which reduce the
value of accounts receivable divided by gross invoices. The
Dilution Percentage shall be calculated on a rolling 90 day
average. If the Dilution Percentage exceeds 7% then Lender may
reduce the Eligible Accounts Percentage to a percentage
satisfactory to Lender.
Eligible Inventory Percentages:
Finished Goods 50%
Raw Materials 50%
(c) Inventory Sublimit(s): $500,000
(d) Maximum days after Invoice
Date for Eligible Accounts 90 DAYS
(e) Minimum Borrowing: $1,000,000
10.2 Term Loan:
(a) amount $491,539.50
(b) monthly amortization $8,192.33
(c) maturity date 60 months from closing
10.3 Interest, Fees & Charges;
(a) Interest Rate: Prime Rate plus 2.25% per
annum
Clearance: 3 Business Days
Closing Fee: $20,000 LESS ANY PART THAT WAS
PREPAID AT THE TIME OF EXECUTION
OF THE COMMITMENT LETTER
(d)(1)Facility Fee for Initial Term:
First Anniversary: 1% of the Maximum Credit
Second Anniversary: 1% of the Maximum Credit
(2) Facility Fee for Renewal Term:
Renewal Date: 1% of the Maximum Credit
First Anniversary: 1% of the Maximum Credit
Second Anniversary: 1% of the Maximum Credit
(e) Account Servicing Fee: n/a
(f) Unused Line Fee: per annum n/a
(g) Field Examination per diem charge
per examiner $650
(h) Early Termination Fee:
First year: 2% of the Maximum Credit
Second year: 1% of the Maximum Credit
Third year and thereafter: 1% of the Maximum Credit
10.4 Financial Covenants:
(a) Working Capital: na
(b) Net Worth: na
(c) Capital Expenditures: per fiscal
year na
10.5 (a) Lender's Office: 00 X. XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
(b) Lenders Bank: Bank of America Illinois
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
(c) Borrower: Innovative Health Products, Inc.
(d) Borrower's Chief Executive Office: DYNAMIC HEALTH PRODUCTS, INC.
0000 XXXXX XXXXX XXXX
XXXXX, XX 00000
(e) Locations of Eligible Inventory
Collateral; 0000 XXXXX XXXXX XXXX
XXXXX, XX 00000
0000-X XXXXXXX XXXX XXXX
XXXXX, XX 00000
(f) Borrowers Other Offices and
Locations of Collateral: 0000-X XXXXXXX XXXX XXXX
XXXXX, XX 00000
0000-X XXXXXXX XXXX XXXX
XXXXX, XX 00000
0000 XXXXX XXXXX XXXX
XXXXX, XX 00000
(g) Borrower's Trade Names for Invoicing:
NU-WAVE HEALTH PRODUCTS, INC.
ENERGY FACTORS, INC.
(h) Borrower's State of Incorporation: FLORIDA
(i) Judgment Amount $25,000
10.6 Term: 3 Years
10.7 MULTIPLE BORROWERS: THE "BORROWER" AS DEFINED IN SECTION 1.1 AND IDENTIFIED
IN SECTION 10.5(C) CONSISTS OF TWO "BORROWERS". A REQUEST FOR A REVOLVING LOAN
SHALL BE MADE BY A PARTICULAR BORROWER, WITH A11 RELEVANT DETERMINATIONS WITH
RESPECT TO SUCH REQUEST TO BE BASED ON SUCH BORROWER'S INDIVIDUAL CRITERIA, SUCH
AS THE AMOUNT OF ITS ELIGIBLE ACCOUNTS, ELIGIBLE INVENTORY, AND NET AVALLABILTY.
NOTWITHSTANDING THE FOREGOING, THE MAXIMUM AGGREGATE AMOUNT OUTSTANDING FOR ALL
BORROWERS SHALL AT NO TIME EXCEED $2,000,000. EXCEPT AS PROVIDED IN THIS SECTION
10.7 AND AS OTHERWISE SPECIFICALLY PROVIDED, "BORROWER" SHALL BE DEFINED AS SET
FORTH IN SECTION 1.1 HEREOF.
IN WITNESS WHEREOF, Borrower and Lender have duly executed this
Agreement this 2nd day of February, 1999.
LENDER BORROWER:
THE CIT GROUP/CREDIT INNOVATIVE HEALTH
FINANCE, INC. PRODUCTS, INC.
By: /s/ X. X. XXXXXXX By: /s/ ILLEGIBLE
--------------------------------- ---------------------------
Title: Senior V.P. Title: President
DYNAMIC HEALTH
PRODUCTS, INC.
By: /s/ ILLEGIBLE
---------------------------
Title: President
(Leave spaces for multiple Borrowers)
SCHEDULE A
PERMITTED LIENS
