Exhibit 10.28
FINANCING AGREEMENT
GIBRALTAR CORPORATION OF AMERICA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
This Agreement, effective as of the date of acceptance by you, states the
terms and conditions under which you will make revolving loans to us.
27. As security for Obligations (as herein defined) at any time owing by us to
you or your subsidiaries, we hereby assign to you and grant to you a
security interest in all of our Receivables (as herein defined) whether now
existing or hereafter arising or in which we now have or may hereafter
acquire any rights. The term "Receivables" means and includes accounts,
contract rights, instruments, documents, chattel paper, general intangibles
and all forms of obligations owing to us, all proceeds thereof and all of
our rights to any merchandise which is represented thereby. From time to
time, we shall provide you with schedules describing all Receivables created
or acquired by us and shall execute and deliver written assignments of such
Receivables to you, provided, however, that our failure to execute and
deliver such schedules and/or assignments shall not affect or limit your
security interest or other rights in and to Receivables. Together with each
schedule, we shall furnish copies of customers' invoices or the equivalent,
and original shipping or delivery receipts for all merchandise sold and we
warrant the genuineness thereof. We further warrant that all Receivables are
and will be bona fide existing obligations created by the sale and delivery
of merchandise or the rendition of services to customers in the ordinary
course of business, free of liens, encumbrances and security interests and
unconditionally owed to us without defense, offset or counterclaim.
28. You will lend to us at your discretion up to eighty-five (85%) percent of
the net amount of Receivables which you deem acceptable, and you will credit
the amount thereof to our account. The balance of said net amount, less any
moneys remitted, paid or otherwise advanced by you to or for the account of
the undersigned, including any amounts which you may be obligated to pay in
the future, and less the compensation specified in Paragraph "3", shall be
remitted to us when all said Receivables shall be collected. You or your
designee may notify customers or account debtors at any time that
Receivables have been assigned to you or of your security interest therein,
collect them directly and charge the collection costs and expenses to our
account but, unless and until you do so or give us other instructions, we
shall make collection of all Receivables for you, receive in trust all
payments thereon as your trustee and immediately deliver them to you in
their original form. After allowing two (2) business days for collection of
checks and other instruments, you will credit (conditional upon final
collection) all such payments to our account.
29. Interest will accrue at the rate set forth in the Rider attached hereto,
upon any balance of our account owing to you at the close of each day and
will be due and payable to you at the close of each month. In the event the
United Jersey Bank base rate prevailing on the effective date hereof is
subsequently changed, then an equivalent change will be made in the rate of
interest which will be charged to us, effective as of the date of each such
change. You will account monthly and each monthly accounting will be fully
binding on us unless we give you written notice of exceptions within thirty
(30) days. In no event shall the interest charged hereunder exceed the
maximum permitted by law.
30. If any warranty is breached as to any Receivable, or any Receivable is not
paid by the customer or account debtor within ninety (90) days from the date
of the invoice, or the customer or account debtor disputes liability or
makes any claim with respect thereto, or a petition in bankruptcy or other
application for relief under the Bankruptcy Code or any other insolvency
law, is filed with respect to the customer or account debtor or the customer
or account debtor assigns for the benefit of creditors, becomes insolvent,
fails, suspends or goes out of business, then you may deem unacceptable any
or all Receivables owing by that customer or account debtor and we shall pay
you promptly the amount thereof; but you shall retain your title to all
Receivables, acceptable and unacceptable and/or your security interest
therein until all Obligations have been fully satisfied. Any merchandise
which is returned by a customer or account debtor or otherwise recovered
shall be set aside, marked with your name and held by us as your trustee,
and shall remain a part of your security. We shall notify you promptly of
all returns and recoveries and on request deliver the merchandise to you. We
shall also notify you promptly of all disputes and claims and settle or
adjust them at no expense to you, but no discount, credit or allowance shall
be granted to any customer or account debtor and no returns of merchandise
shall be accepted by us without your consent. You may, at all times, settle
or adjust disputes and claims directly with customers or account debtors for
amounts and upon terms which you consider advisable, and in all cases you
will credit our account with only the net amounts received by you in payment
of Receivables, after deducting all costs and legal expenses.
31. All sums at any time standing to our credit on your books and all of our
property at any time in your possession, or upon or in which you have a lien
or security interest shall be security for all Obligations. The term
"Obligations" (as used in this Agreement) means and includes all loans,
advances, debts, liabilities, obligations, guarantees, covenants and duties
owing by us to you or your subsidiaries, of every kind and description
(whether or not evidenced by any note or other instrument and whether or not
for the payment of money), direct or indirect, absolute or contingent, due
or to become due, now existing or hereafter arising, whether arising prior
to or subsequent to the commencement of any bankruptcy case, including,
without limitation, any debt, liability or obligation owing from us to
others which you or your subsidiaries may have obtained by assignment or
otherwise, and further including, without limitation, all interest, fees,
charges, expenses and attorneys' fees chargeable to our account or incurred
by you or your subsidiaries in connection with our account whether provided
for herein or in any other agreement between us. At the request of any of
your subsidiaries, you may pay over to it the amounts of all such
Obligations owing to such subsidiaries. Any corporation which is at least
fifty percent owned by you shall be deemed your subsidiary.
32. During the term of this Agreement, we shall not sell or assign or grant any
security interest in any Receivables to anyone other than you, nor shall we
mortgage, pledge or grant any security interest in any of our inventory or
equipment to anyone other than you. We shall place notations upon our books
of account to disclose the assignment of all Receivables to you or your
security interest therein and shall perform all other steps requested by you
to create and maintain in your favor a valid first security interest,
assignment or pledge in, of or on all Receivables and all other security
held by or for you. We waive presentment and protest of any instrument and
notice thereof, notice of default and all other notices to which we might
otherwise be entitled. You may at all times, have access to, inspect, audit
and make extracts from all of our records, files and books of account and
you may at any time remove from our premises all of them pertaining to our
Receivables; and we shall furnish you quarterly statements showing our
financial condition and the results of our operations and you may obtain
such information directly from our accountants. We shall deliver to you
within ninety days after the end of our fiscal year, our year-end financial
statement prepared by an independent Certified Public Accountant in a form
acceptable to you. We appoint you or any other person whom you may designate
as our attorney, with power: to endorse our name on any checks, notes,
acceptances, money orders, drafts or other forms of payment or security that
may come into your possession; to sign our name on any invoice or xxxx of
lading relating to any Receivables, on drafts against customers, on
schedules and assignments of Receivables, on notices of assignment,
financing statements and other public records, on verifications of accounts
and on notices to customers; to notify the post office authorities to change
the address for delivery of our mail to an address designated by you; to
receive, open and dispose of all mail addressed to us; to send requests for
verification of Receivables to customers or account debtors, and to do all
things necessary to carry out this Agreement. We ratify and approve all acts
of the attorney. Neither you nor the attorney will be liable for any acts or
omissions nor for any error of judgment or mistake of fact or law. This
power, being coupled with an interest, is irrevocable so long as any
Receivables assigned to you or in which you have a security interest remain
unpaid or until the Obligations have been fully satisfied. You may file one
or more financing statements disclosing your security interest without our
signature appearing thereon.
33. This Agreement is deemed to be made and accepted by you in the State of New
York and it and all transactions hereunder shall be governed by and
interpreted in accordance with the laws of that state. It shall have an
initial term of two (2) years from its effective date and shall be
automatically renewed for successive periods of one year unless terminated
by either party on the anniversary of its effective date (such anniversary
date, a "Renewal Date") in any year by giving the other at least sixty (60)
days' prior written notice. Termination shall be effected by the mailing of
a registered or certified letter of notice addressed by either of us to the
other at the address set forth herein and the termination shall be effective
as of the date so fixed in such notice. Notwithstanding the foregoing,
should we become insolvent or unable to meet our debts as they mature, or
fail, suspend or go out of business or commit an act of bankruptcy or make a
general assignment or if a case in bankruptcy or any insolvency or
reorganization case be commenced by or against us, or if you shall be
insecure as to any of the Collateral or as to the prospect of our payment or
performance of any of the Obligations, or if a Federal, State or any other
tax lien be filed against us or judgment rendered against us, you shall have
the right to terminate at any time without notice. Upon the effective date
of termination, all Obligations whether or not incurred under this Agreement
or any supplement hereto or otherwise shall become immediately due and
payable without notice or demand. Notwithstanding termination, until all
Obligations have been fully satisfied, you shall retain your security
interest in and title to all existing Receivables and those arising
thereafter, and we shall continue to assign Receivables to you and turn over
all proceeds to you. Termination by us shall not be effective if there are
any other Loan Agreements (as defined in the Rider attached hereto)
outstanding.
34. If we default hereunder or if any of your rights hereunder are challenged or
contested or if we fail to make payment of any of the Obligations when
required of us, or fail to make any payment required by this Agreement or
commit any breach of this Agreement, or any present or future supplement
hereto, or any other agreement between us and/or upon termination of this
agreement, the undersigned will repay upon demand all Obligations then owing
to you, whether due or not, and in addition thereto upon the occurrence of
any of the above contingencies you are hereby given the unqualified right to
retain counsel for any of the following purposes to protect your interest in
this Agreement, to protect, assemble, sell, or foreclose any of the
equipment, chattels, inventory, instruments, documents, chattel paper,
general intangibles or other collateral now or hereafter pledged to you, to
collect any money which may become due under this or any other Agreement or
Obligation from us or any account debtor, or any guarantor, or anyone else
against whom you may have any direct or contingent claim pursuant to the
terms hereunder or pursuant to the terms of any guarantee or assignment or
security agreement, to otherwise seek in any manner to protect, defend and
enforce your rights hereunder or elsewhere contained, or collect any monies
or obligations due from us. If you retain counsel for any of the purposes
aforementioned, we agree to pay reasonable counsel fees and all
disbursements incurred by you including, but not limited to, all costs,
charges, premiums, fees of Court and Public Officers and other disbursements
and expenses incurred by you in connection with the enforcement, proceeding,
collection, sale or suit involving any of the aforementioned purposes shall
be paid by us on demand; and the amount thereof shall be added to the
indebtedness secured by this Agreement and shall be secured by the lien
given you by this and any other security instrument in the same manner as if
said amount were a part of the principal sum due from us to you. You shall
have, in addition to all other rights provided herein, the rights and
remedies of a secured party under the Uniform Commercial Code of the State
of New York, and further, you may, without demand and without advertisement
or notice, all of which we waive, at any time or times, sell and deliver any
or all Receivables and any or all other security and collateral held by or
for you at public or private sale, for cash, upon credit or otherwise, at
such prices and upon such terms as you deem advisable, at your sole
discretion. Any requirement of reasonable notice shall be met if such notice
is mailed postage prepaid to us at our address as set forth herein at least
ten (10) days before the time of sale or other disposition. You may be the
purchaser at any such sale, if it is public, free from any right of
redemption, which we also waive. The proceeds of sale shall be applied first
to all costs and expenses of sale, including attorneys' fees, and second to
the payment (in whatever order you elect) of all Obligations. You will
return any excess to us and we shall remain liable to you for any
deficiency. Failure by you to exercise any right, remedy or option under
this Agreement or any present or future supplement hereto or in any other
agreement between us or delay by you in exercising the same will not operate
as a waiver; no waiver by you will be effective unless it is in writing and
then only to the extent specifically stated. Your rights and remedies under
this Agreement will be cumulative and not exclusive of any other right or
remedy which you may have. Both of us waive all right to a trial by jury in
any litigation relating to transactions under this Agreement.
35. That we, as further additional collateral security, by these presents assign
to you all our present and future rights to any and all payments, checks and
drafts, now made or hereafter to be made by any insurance company pursuant
to any contract of insurance or indemnity now or hereafter in existence,
regardless of whether or not you are named as Secured Party and/or
Mortgagee, and/or Loss Payee in said present or future policy or policies.
The rights given to you hereunder are coupled with an interest and cannot be
revoked by us. Each present and future insurance carrier is hereby
authorized and directed to make all payments, drafts and checks payable to
you with the same force and effect as if the same were paid directly to us.
36. We will furnish you with proof satisfactory to you of our making the payment
or deposit of F.I.C.A. and withholding taxes required of us by applicable
law. Such proof shall be furnished within five (5) days after the due date
for each payment or deposit established by law.
a. Should we fail to make any such payment or deposit or furnish such
proof, you may, in your sole and absolute discretion, and without
notice to us, make payment of the same or any part thereof, or set up
such reserves in our account as you deem necessary to satisfy the
liability therefor. Each amount so deposited or paid by you shall
constitute an advance under this Agreement and shall be secured by all
collateral now or hereafter held by you.
b. Nothing herein contained shall obligate you to make such deposit or
payment or set up such reserve, nor shall the making of one or more
such deposits or payment or the setting up of any such reserve
constitute an agreement on your part to take any further or similar
action, or a waiver of any default by us under the terms thereof or of
the security agreement.
c. Upon the expiration or termination of this Agreement or any
transactions hereunder or relating hereto, you shall retain your
security interests in all collateral held by you until we shall have
paid or discharged all such obligations, accrued to the date of such
expiration or termination, or shall have supplied you with evidence
satisfactory to you that due provision has been made therefor.
37. That as further additional collateral security for the repayment of all our
present and future Obligations to you, we agree that any security interest
(including the security interest created hereunder) and/or mortgage and/or
pledge of any property, whether of like or unlike nature, which you may now
or hereafter have in, to and of any of our present or future property or
assets, of any type or nature, shall at all times be and remain additional
collateral for the prompt fulfillment by us of all our present and future
Obligations hereunder or elsewhere contained.
38. All security interests now or hereafter held by you whether of like or
unlike nature, shall always remain as collateral for all our present and
future Obligations to you. You shall be under no obligation to terminate any
of your liens or security interests or surrender any collateral until all
our Obligations are paid in full to you.
39. This Agreement cannot be changed or terminated orally. All of the rights,
privileges, remedies and options given to you hereunder shall inure to the
benefit of your successors and assigns; and all the terms, conditions,
promises, covenants, provisions and warranties of this Agreement shall inure
to the benefit of and shall bind the representatives, successors and assigns
of each of us.
40. Reference is made to the Rider annexed hereto, the terms of which are
incorporated herein.
Very truly yours,
ATTEST: (SEAL) XXXX INDUSTRIES, INC.
By:
Secretary Chief Executive Officer
0 Xxxxxxx Xxxxx Xxxx, Xxxx Xxxx,
Xxx Xxxx 00000
Accepted at New York, New York
on December 28, 0000
XXXXXXXXX XXXXXXXXXXX XX XXXXXXX
By:_____________________________
Vice President
