Exhibit 13
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT dated as of July 9, 1997, between Palletech,
Inc., a Delaware Corporation, with an address of 0000 Xxxxx Xxxxxxx, Xxxxx, Xxxx
00000 ("Palletech"); FIXCOR Industries, Inc., with an address of 0000 Xxxxx
Xxxxxxx, Xxxxx, Xxxx 00000 ("FIXCOR"); Fix-Corp International, Inc., a Delaware
corporation, with an address of 00000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxx
00000 ("Fix-Corp"; and collectively, along with Palletech and FIXCOR, the
"Borrowers"; and each a "Borrower") and Xxxxxx Xxxxxxxx Capital Corporation, a
Delaware corporation with an address of 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000 (the "Lender").
FOR VALUE RECEIVED, and in consideration of the granting by the Lender of
financial accommodations to Borrowers, Borrowers represent and agree with the
Lender, as of the date hereof and as of the date of each credit and/or other
financial accommodation, as follows:
1. THE LOAN
1.1 LOAN. Lender agrees, subject to the terms and conditions set forth herein,
to establish an equipment acquisition line of credit (the "Equipment Line") for
Palletech and FIXCOR pursuant to which Lender agrees to Lend to Palletech and
FIXCOR upon Palletech's OR FIXCOR'S request up to three million five hundred
thousand dollars and zero cents ($3,500,000.00) (the "Equipment Loan Amount") to
assist Palletech's and FIXCOR'S purchase of capital equipment. All advances
shall be limited to a maximum of 80% of the Hard Costs (as hereinafter defined)
of all capital equipment purchased with the proceeds. Hard Costs shall mean the
invoice price of such equipment less delivery and installation costs and taxes.
Each request for financing will be reviewed by the Lender in its sole discretion
based upon invoices or other evidence acceptable to the Lender, indicating the
purchase, delivery and acceptance of capital equipment, and all advances shall
be approved by the Lender in its sole discretion. Lender may refuse to make any
advance in the event that Lender deems in its sole discretion that it does not
have adequate collateral for such advance. Advances may be made respecting this
Equipment Line from time to time from the date of this Agreement up to and
including October 31, 1998 (the "Maturity Date"). The amounts outstanding
respecting the Equipment Line are evidenced by that certain Term Note, of even
date herewith by Palletech and FIXCOR in favor of the Lender in the original
principal amount of the Equipment Loan Amount (the "Equipment Note") which is
due and payable in full on the Maturity Date. This Agreement, the Equipment
Note, and any and all other documents, amendments or renewals executed and
delivered in connection with any of the foregoing are collectively hereinafter
referred to as the "Loan Documents".
2. GRANT OF SECURITY INTEREST
2.1 GRANT OF SECURITY INTEREST. In consideration of the Lender's extending
credit and other financial accommodations to the Borrowers, each Borrower hereby
grants to the Lender a security interest in (including, without limitation, a
lien on and pledge of) all of such Borrower's
Collateral (as hereinafter defined). The security interest granted by this
Agreement is given to and shall be held by the Lender as security for the
payment and performance of all Obligations.
2.2 DEFINITIONS. The following definitions shall apply:
(a) "Code" shall mean the Massachusetts Uniform Commercial Code (General
Law, Chapter 106) as amended from time to time.
(b) "Collateral" shall mean all of each Borrower's present and future
right, title and interest in and to any and all of the following
property, whether such property is now existing or hereafter created:
(i) All goods including without limitation all Inventory (as
hereinafter defined), farm products, Equipment (as hereinafter
defined), including without limitation machinery, furniture, trade
fixtures;
(ii) All accounts, accounts receivable, contract rights and chattel
paper, regardless of whether or not they constitute proceeds of other
Collateral;
(iii) All general intangibles, regardless of whether or not they
constitute proceeds of other Collateral, including, without
limitation, all of such Borrower's rights to tax refunds and all of
such Borrower's rights (which the Lender may exercise or not as it in
its sole discretion may determine) to acquire or obtain goods and/or
services with respect to the manufacture, processing, storage, sale,
shipment, delivery or installation of any of such Borrower's inventory
or other Collateral:
(iv) All products of and accessions to any of the Collateral;
(v) All liens, guaranties, securities, rights, remedies and
privileges pertaining to any of the Collateral, including the right of
stoppage in transit;
(vi) All obligations owing to such Borrower of every kind and
nature; and all choses in action;
(vii) All goodwill, trade secrets, computer programs, customer
lists, trade names, trademarks and patents;
(viii) All documents and instruments (whether negotiable or
nonnegotiable, and regardless of their being attached to chattel
paper);
(ix) All proceeds of Collateral of every kind and nature in
whatever form, including, without limitation, both cash and noncash
proceeds resulting or arising from the rendering of services by such
Borrower or the sale or other disposition by such Borrower of the
Inventory or other Collateral;
2
(x) All books and records relating to the conduct of such
Borrower's business including, without in any way limiting the
generality of the foregoing, those relating to its accounts; and
(xi) All deposit accounts maintained by such Borrower with any
Lender, trust company, investment firm or fund, or any similar
institution or organization.
(c) "Contract Rights" or "contract rights" means rights of each Borrower
to payment under contracts not yet earned by performance and not
evidenced by instruments or chattel paper.
(d) "Debtors" shall mean each Borrower's customers who are indebted to
such Borrower.
(e) "Equipment" shall mean and include all of each Borrower's machinery,
equipment, furniture, trade fixtures and motor vehicles and intending
to include all tangible personal property, or goods, utilized in the
conduct of each Borrower's business, but excluding therefrom
inventory, as that term is defined in the Code, and all replacements
or substitutions therefor and all accessions thereto.
(f) "Inventory" means all inventory of whatever name, nature, kind or
description, all goods held for sale or lease or to be furnished under
contracts of service, finished goods, work in process, raw materials,
materials used or consumed by each Borrower, parts, supplies, all
wrapping, packaging, advertising labeling, and shipping materials,
devices, names and marks, all contract rights and documents relating
to any of the foregoing, whether any of the foregoing be now existing
or hereafter arising, wherever located, now owned or hereafter
acquired by such Borrower.
(g) "Obligation(s)" shall mean, without limitation, all loans, advances,
indebtedness, notes, liabilities and amounts, liquidated or
unliquidated, owing by each Borrower to the Lender at any time, of
each and every kind, nature and description, whether arising under
this Agreement or otherwise, and whether secured or unsecured, direct
or indirect (that is, whether the same are due directly by such
Borrower to the Lender; or are due indirectly by such Borrower to the
Lender as endorser, guarantor or other surety, or as borrower of
obligations due third persons which have been endorsed or assigned to
the Lender, or otherwise), absolute or contingent, due or to become
due, now existing or hereafter contracted. Said term shall also
include all interest and other charges chargeable to each Borrower or
due from each Borrower to the Lender from time to time and all costs
and expenses referred to in this Agreement.
(h) "Person" or "party" shall include individuals, firms, corporations and
all other entities.
3
All words and terms used in this Agreement other than those specifically
defined herein shall have the meanings accorded to them in the Code.
2.3 ORDINARY COURSE OF BUSINESS. The Lender hereby authorizes and permits the
Borrowers to hold, process, sell, use or consume in the manufacture or
processing of finished goods, or otherwise dispose of the Inventory for fair
consideration, all in the ordinary course of each Borrower's business,
excluding, without limitation, sales to creditors or in bulk or sales or other
dispositions occurring under circumstances which would or could create any lien
or interest adverse to the Lender's security interest or other right hereunder
in the proceeds resulting therefrom. The Lender also hereby authorizes and
permits the Borrowers to receive from the Debtors all amounts due as proceeds of
the Collateral at each Borrower's own cost and expense, and also liability, if
any, subject to the direction and control of the Lender at all times; and the
Lender may at any time, without cause or notice, and whether or not a default
has occurred or demand has been made, terminate all or any part of the authority
and permission herein or elsewhere in this Agreement granted to the Borrowers
with reference to the Collateral.
Until the Lender shall otherwise notify the Borrowers, all proceeds of and
collections of Collateral shall be retained by the Borrowers and used solely for
the ordinary and usual operation of each Borrower's business. From and after
notice by the Lender to any Borrower, all proceeds of and collections of the
Collateral shall be held in trust by such Borrower for the Lender and shall not
be commingled with such Borrower's other funds or deposited in any Lender
account of such Borrower; and such Borrower agrees to deliver to the Lender on
the dates of receipt thereof by such Borrower, duly endorsed to the Lender or to
bearer, or assigned to the Lender, as may be appropriate, all proceeds of the
Collateral in the identical form received by such Borrower.
2.4 ALLOWANCES. Each Borrower may grant such allowances or other adjustments to
Debtors (exclusive of extending the time for payment of any item which shall not
be done without first obtaining the Lender's written consent in each instance)
as such Borrower may reasonably deem to accord with sound business practice,
including, without limiting the generality of the foregoing, accepting the
return of all or any part of the Inventory (subject to the provisions set forth
in this Agreement with reference to returned Inventory).
2.5 RECORDS. Each Borrower shall hold its books and records relating to the
Collateral segregated from all such Borrower's other books and records in a
manner satisfactory to the Lender; and shall deliver to the Lender from time to
time promptly at its request all invoices, original documents of title,
contracts, chattel paper, instruments and any other writings relating thereto,
and other evidence of performance of contracts, or evidence of shipment or
delivery of the merchandise or of the rendering of services; and each Borrower
will deliver to the Lender promptly at the Lender's request from time to time
additional copies of any or all of such papers or writings, and such other
information with respect to any of the Collateral and such schedules of
Inventory, schedules of accounts and such other writings as the Lender may in
its sole discretion deem to be necessary or effectual to evidence any loan
hereunder or the Lender's security interest in the Collateral.
4
2.6 LEGENDS. Each Borrower shall promptly make, stamp or record such entries or
legends on such Borrower's books and records or on any of the Collateral as the
Lender shall request from time to time, to indicate and disclose that the Lender
has a security interest in such Collateral.
2.7 INSPECTION. The Lender, or its representatives, at any time and from time
to time, shall have the right, and each Borrower will permit it and them:
(a) to examine, check, make copies of or extracts from any of such
Borrower's books, records and files (including, without limitation,
orders and original correspondence);
(b) to inspect and examine the Collateral and to check and test the same
as to quality, quantity, value and condition; and each Borrower agrees
to reimburse the Lender for its reasonable costs and expenses in so
doing; and
(c) to verify the Collateral or any portion or portions thereof or each
Borrower's compliance with the provisions of this Agreement.
3. REPRESENTATIONS AND WARRANTIES
3.1 ORGANIZATION AND QUALIFICATION. Each Borrower is a duly organized and
existing corporation under the laws of the State of its incorporation, as
indicated above, in good standing under the laws of said state, and is duly
qualified to do business under the laws of each state where the nature of the
business done or property owned requires such qualification.
3.2 SUBSIDIARIES. Each Borrower has no subsidiaries other than those listed on
Schedule 3.2, if any, and each Borrower has never consolidated, merged or
acquired substantially all of the assets of any other entity or person other
than those listed on Schedule 3.2, if any.
3.3 CORPORATE RECORDS. Each Borrower's Corporate Charter, Articles of
Organization or Incorporation and all amendments thereto have been duly filed
and are in proper order. All outstanding capital stock issued by each Borrower
was and is properly issued and all books and records of each Borrower, including
but not limited to its minute books, bylaws and books of account, are accurate
and up to date and will be so maintained.
3.4 TITLE TO PROPERTIES: ABSENCE OF LIENS. Each Borrower has good and clear
record and marketable title to all of its properties and assets, and all of its
properties and assets including the Collateral are free and clear of all
mortgages, liens, pledges, charges, encumbrances, setoffs, except (a) the
mortgages and security interests as set forth on Schedule 3.4a, if any, and (b)
the leases of personal property as set forth on Schedule 3.4b, if any.
3.5 PLACES OF BUSINESS. Each Borrower's chief executive office is correctly
stated in the preamble to this Agreement, and each Borrower shall, during the
term of this Agreement, keep the Lender currently and accurately informed in
writing of each of its other places of business, and shall not change the
location of such chief executive office or open or close, move or change any
5
existing or new place of business without giving the Lender at least thirty (30)
days prior written notice thereof.
3.6 VALID OBLIGATIONS. The execution, delivery and performance of the Loan
Documents have been duly authorized by all necessary corporate action and each
represents a legal, valid and binding obligation of each Borrower and is fully
enforceable according to its terms, except as limited by laws relating to the
enforcement of creditors' rights.
3.7 CONFLICTS WITH OTHER AGREEMENTS. There is no provision in any indenture,
contract or agreement to which any Borrower is a party which prohibits the
execution, delivery or performance of the Loan Documents.
3.8 GOVERNMENTAL APPROVALS. The execution, delivery and performance of the Loan
Documents does not require any approval of any governmental agency or authority.
3.9 LITIGATION. There are no actions, suits or proceedings pending or to the
knowledge of any Borrower threatened against any Borrower which might materially
adversely affect the ability of any Borrower to perform its obligations under
the Loan Documents.
3.10 FINANCIAL STATEMENTS. Each Borrower has furnished to the Lender the
following Financial Statements (the "Financial Statements"): balance sheet as of
December 31, 1996 and statement of profit and loss for the period ending
December 31,1996. The balance sheet fairly presents the condition of each such
Borrower at the date thereof and the statement of profit and loss fairly
presents the results of the operations of each such Borrower for the period
indicated, all in conformity with generally accepted accounting principles,
consistently applied.
3.11 ACCOUNTS AND CONTRACT RIGHTS. All accounts arise out of legally
enforceable and existing contracts; and represent unconditional and
undisputed bona fide indebtedness by the Debtor for sales or leases of
Inventory shipped and delivered or services rendered by any Borrower to a
Debtor, and are not and will not be subject to any discount (except such cash
or trade discount as may be shown on any invoice, contract or other writing
delivered to the Lender). No contract right, account, general intangible or
chattel paper is or will be represented by any note or other instrument, and
no contract right, account or general intangible is, or will be represented
by any conditional or installment sales obligation or other chattel paper,
except such instruments or chattel paper as have been or immediately upon
receipt by a Borrower will be delivered to the Lender (duly endorsed or
assigned), such delivery, in the case of chattel paper, to include all
executed copies except those in the possession of the installment buyer and
any security for or guaranty of any of the Collateral shall be delivered to
the Lender immediately upon receipt thereof by a Borrower, with such
assignments and endorsements thereof as the Lender may request.
3.12 TITLE TO COLLATERAL. At the date hereof each Borrower is (and as to
Collateral that such Borrower may acquire after the date hereof, will be) the
lawful owner of the Collateral, and that the Collateral and each item thereof
is, will be and shall continue to be free of all restrictions, liens,
encumbrances or other rights, title or interests (other than the security
interest therein granted to the Lender hereby), credits, defenses, recoupments,
set-offs or counterclaims
6
whatsoever; that each Borrower has and will have full power and authority to
grant to the Lender a security interest therein, and that each Borrower has not
transferred, assigned, sold, pledged, encumbered, subjected to lien or granted
any security interest in, and will not transfer, assign, sell (except sales or
other dispositions in the ordinary course of business in respect to Inventory as
expressly permitted in this Agreement), pledge, encumber, subject to lien or
grant any security interest in any of the Collateral (or any of such Borrower's
right, title or interest therein), to any person other than the Lender; that the
Collateral is and will be valid and genuine in all respects; that all accounts
arise out of legally enforceable and existing contracts in accordance with their
tenor; and that upon each Borrower's acquisition of any interest in contract
rights, it shall in writing immediately notify the Lender thereof, specifically
identifying the same as contract rights, and, except for such contract rights,
no part of the Collateral (or the validity or enforceability by the Lender
thereof) is or shall be contingent upon the fulfillment of any agreement or
condition whatsoever and that the Collateral, other than Inventory and
Equipment, shall represent unconditional and undisputed bona fide indebtedness
by the Debtor for sales or leases of Inventory shipped and delivered or services
rendered by a Borrower to Debtor, and is not and will not be subject to any
discount (except such cash or trade discount as may be shown on any invoice,
contract or other writing delivered to the Lender); and that each Borrower will
warrant and defend the Lender's right to and interest in the Collateral against
all claims and demands of all persons whatsoever.
3.13 LOCATION OF COLLATERAL. Except for sale, processing, use, consumption or
other disposition in the ordinary course of business, each Borrower will keep
all Inventory and Equipment only at locations specified in this Agreement; that
each Borrower shall, during the term of this Agreement, keep the Lender
currently and accurately informed in writing of each location where such
Borrower's records relating to its accounts and contract rights, respectively,
are kept, and shall not remove such records or any of them to another state
without giving the Lender at least thirty (30) days prior written notice
thereof. In addition Palletech and FIXCOR will keep all capital equipment
purchased with proceeds from the Loan at Palletech's and FIXCOR's facility
located at 0000 Xxxxx Xxxxxxx, Xxxxx, Xxxx 00000.
3.14 THIRD PARTIES. The Lender shall not be deemed to have assumed any
liability or responsibility to any Borrower or any third person for the
correctness, validity or genuineness of any instruments or documents that may
be released or endorsed to a Borrower by the Lender (which shall
automatically be deemed to be without recourse to the Lender in any event) or
for the existence, character, quantity, quality, condition, value or delivery
of any goods purporting to be represented by any such documents; and that the
Lender, by accepting such security interest in the Collateral, or by
releasing any Collateral to a Borrower, shall not be deemed to have assumed
any obligation or liability to any supplier or Debtor or to any other third
party, and each Borrower agrees to indemnify and defend the Lender and hold
it harmless in respect to any claim or proceeding arising out of any matter
referred to in this paragraph.
3.15 PAYMENT OF ACCOUNTS. Each account or other item of Collateral, other than
Inventory and Equipment, will be paid in full on or before the date shown as its
due date in the schedule of Collateral, in the copy of the invoice(s) relating
to the account or other Collateral or in contracts relating thereto; that upon
any suspension of business, assignment or trust mortgage for the
7
benefit of creditors, dissolution, petition in receivership or under any chapter
of the Bankruptcy Code as amended from time to time by or against any Debtor,
any Debtor becoming insolvent or unable to pay its debts as they mature or any
other act of the same or different nature amounting to a business failure, each
Borrower will forthwith notify the Lender thereof.
3.16 NOTIFICATION OF DAMAGE. Each Borrower will immediately notify the Lender
of any loss or damage to, or material diminution in or any occurrence that would
adversely affect the value of the Inventory, the Equipment or other Collateral.
3.17 CHANGES. Since the date of the Financial Statements, there have been no
changes in the assets, liabilities, financial condition or business of each
Borrower, other than changes in the ordinary course of business, the effect of
which have, in the aggregate, been materially adverse.
3.18 TAXES. Each Borrower has filed all Federal, state and other tax returns
required to be filed (except for such returns for which current and valid
extensions have been filed), and all taxes, assessments and other governmental
charges due from each Borrower have been fully paid. Each Borrower has
established on its books reserves adequate for the payment of all Federal, state
and other tax liabilities (if any).
3.19 USE OF PROCEEDS. No portion of any Loan is to be used for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such terms are
used in Regulations G and U of the Board of Governors of the Federal Reserve
System, 12 C.F.R. 207 and 221.
4. AFFIRMATIVE COVENANTS
4.1 PAYMENTS. Each Borrower will duly and punctually pay all interest and
principal becoming due the Lender and will duly and punctually perform all
things on its part to be done or performed under this Agreement.
4.2 FACILITY/COLLATERAL MONITORING FEE. In addition to all amounts due and
payable respecting the Loan pursuant to the Equipment Note and the other Loan
Documents, Borrowers hereby agree to pay to Lender a "Facility/Collateral
Monitoring Fee" equal to $5,000 per month in advance on the first business day
of every calendar month commencing July 1, 1997 and on the first business day of
each month thereafter through and including December 1, 1997 and $10,000 per
month in advance on the first business day of every calendar month commencing
January 2, 1998 and on the first business day of each month thereafter so long
as any amounts are outstanding respecting the Loan and the Equipment Note.
4.3 BOOKS AND RECORDS: INSPECTION. Each Borrower will at all times keep proper
books of account in which full, true and correct entries will be made of its
transactions in accordance with generally accepted accounting principles,
consistently applied and which are, in the opinion of a Certified Public
Accountant acceptable to Lender, adequate to determine fairly the financial
condition and the results of operations of each Borrower. Each Borrower will at
all reasonable times make its books and records available in its offices for
inspection and examination by the
8
Lender and the Lender's representatives and will permit inspection of the
Collateral and all of its properties by the Lender and the Lender's
representatives. Each Borrower will from time to time furnish the Lender with
such information and statements as the Lender may request in its sole discretion
with respect to the Obligations or the Lender's security interest in the
Collateral. Each Borrower shall, during the term of this Agreement, keep the
Lender currently and accurately informed in writing of each location where such
Borrower's records relating to its accounts and contract rights are kept, and
shall not remove such records to another state without giving the Lender at
least thirty (30) days prior written notice thereof.
4.4 FINANCIAL STATEMENTS. Each Borrower will furnish to Lender:
(a) as soon as available to such Borrower, but in any event within 15 days
after the close of each month, a full and complete signed copy of
financial statements, which shall include a balance sheet of such
Borrower, as at the end of such month, and statement of profit and
loss of such Borrower reflecting the results of its operations during
such month and shall be prepared by such Borrower and certified by
such Borrower's chief financial officer as to correctness in
accordance with generally accepted accounting principles, consistently
applied, subject to year-end adjustments;
(b) as soon as available to such Borrower, but in any event within 30 days
after the close of each quarterly period of its fiscal year, a full
and complete signed copy of financial statements, prepared by
certified public accountants acceptable to Lender, which shall include
a balance sheet of such Borrower, as at the end of such quarter, and
statement of profit and loss of such Borrower reflecting the results
of its operations during such quarter, bearing the opinion of such
certified public accountants and prepared on a compiled basis in
accordance with generally accepted accounting principles, consistently
applied, subject to year-end adjustments;
(c) as soon as available to such Borrower, but in any event within 90 days
after the close of each fiscal year, a full and complete signed copy
of financial statements, prepared by certified public accountants
acceptable to Lender, which shall include a balance sheet of such
Borrower, as at the end of such year, and statement of profit and loss
of such Borrower reflecting the results of its operations during such
year, bearing the opinion of such certified public accountants and
prepared on an audited basis in accordance with generally accepted
accounting principles, consistently applied together with any
so-called management letter;
(d) on or before May 1 of each year or such other date approved by the
Lender, such Borrower's filed federal and state tax returns for the
prior year;
(e) from time to time, such financial data and information about such
Borrower as Lender may reasonably request; and
9
(f) any financial data and information about any guarantors of the
Obligations as Lender may reasonably request.
4.5 CONDUCT OF BUSINESS. Each Borrower will maintain its corporate existence in
good standing and comply with all laws and regulations of the United States and
of any state or states thereof and of any political subdivision thereof, and of
any governmental authority which may be applicable to it or to its business;
provided that this covenant shall not apply to any tax, assessment or charge
which is being contested in good faith and with respect to which reserves have
been established and are being maintained.
4.6 NOTICE TO ACCOUNT DEBTORS. Each Borrower agrees, at the request of the
Lender, to notify all or any of the Debtors in writing of the Lender's security
interest in the Collateral in whatever manner the Lender requests and, if the
Lender so requests, to permit the Lender to notify all or any of the Debtors at
the Borrowers' expense.
4.7 TAXES. Each Borrower will promptly pay all real and personal property
taxes, assessments and charges and all franchise, income, unemployment, old age
benefits, withholding, sales and other taxes assessed against it or payable by
it before delinquent; provided that this covenant shall not apply to any tax
assessment or charge which is being contested in good faith and with respect to
which reserves have been established and are being maintained. The Lender may,
at its option, from time to time, discharge any taxes, liens or encumbrances of
any of the Collateral, and the Borrowers will pay to the Lender on demand or the
Lender in its sole discretion may charge to the Borrowers all amounts so paid or
incurred by it.
4.8 MAINTENANCE. Each Borrower will keep and maintain the Collateral and its
other properties, if any, in good repair, working order and condition. Each
Borrower will immediately notify the Lender of any loss or damage to or any
occurrence which would adversely affect the value of any Collateral. The Lender
may, at its option, from time to time, take any other action that the Lender may
deem proper to repair, maintain or preserve any of the Collateral, and the
Borrowers will pay to the Lender on demand or the Lender in its sole discretion
may charge to the Borrowers all amounts so paid or incurred by it.
4.9 INSURANCE. Each Borrower will maintain in force casualty insurance on all
Collateral and any other property of such Borrower, if any, against risks
customarily insured against by companies engaged in businesses similar to that
of such Borrower containing such terms and written by such companies as may be
satisfactory to the Lender, such insurance to be payable to the Lender as its
interest may appear in the event of loss; no loss shall be adjusted thereunder
without the Lender's approval; and all such policies shall provide that they may
not be canceled without first giving at least ten (10) days' written notice of
cancellation to the Lender. In the event that any Borrower fails to provide
evidence of such insurance, the Lender may, at is option, secure such insurance
and charge the cost thereof to the Borrowers. At the option of the Lender, all
insurance proceeds received from any loss or damage to any of the Collateral
shall be applied either to the replacement or repair thereof or as a payment on
account of the Obligations. From and after the occurrence of an Event of
Default, the Lender is authorized to cancel any insurance maintained
10
hereunder and apply any returned or unearned premiums, all of which are hereby
assigned to the Lender, as a payment on account of the Obligations.
4.10 NOTIFICATION OF DEFAULT. Within five (5) days of becoming aware of the
existence of any condition or event which constitutes an Event of Default, or
any condition or event which would upon notice or lapse of time, or both,
constitute an Event of Default, a Borrower shall give Lender written notice
thereof specifying the nature and duration thereof and the action being or
proposed to be taken with respect thereto.
4.11 NOTIFICATION OF MATERIAL LITIGATION. Each Borrower will promptly notify
the Lender in writing of any litigation or of any investigative proceedings of a
governmental agency or authority commenced or threatened against it which would
or might be materially adverse to the financial condition of such Borrower.
4.12 PENSION PLANS. With respect to any pension or benefit plan maintained by a
Borrower, or to which such Borrower contributes ("Plan"), the benefits under
which are guarantied, in whole or in part, by the Pension Benefit Guaranty
Corporation created by the Employee Retirement Income Security Act of 1974, P.L.
93-406, or any governmental authority succeeding to any or all of the functions
of the Pension Benefit Guaranty Corporation ("Pension Benefit Guaranty
Corporation"), such Borrower will (a) fund each Plan as required by the
provisions of Section 412 of the Internal Revenue Code of 1986, as amended; (b)
cause each Plan to pay all benefits when due; (c) furnish Lender (i) promptly
with a copy of any notice of each Plan's termination sent to the Pension Benefit
Guaranty Corporation and (ii) no later than the date of submission to the
Department of Labor or to the Internal Revenue Service, as the case may be, a
copy of any request for waiver from the funding standards or extension of the
amortization periods required by Section 412 of the Internal Revenue Code of
1954, as amended; and (d) subscribe to any contingent liability insurance
provided by the Pension Benefit Guaranty Corporation to protect against employer
liability upon termination of a guarantied pension plan, if available to
Borrower.
4.13 ENVIRONMENTAL. As of the date hereof neither the Borrowers nor any of
Borrowers' agents, employees or independent contractors (1) have caused or are
aware of a release or threat of release of Materials (as defined herein) on any
of the premises or personal property owned or controlled by Borrower, or any
abutting property, which could give rise to liability under any Superfund and
Hazardous Waste Laws (as defined herein) or any other federal, state or local
law, rule or regulation; (2) have arranged for the transport of or transported
any Materials in a manner as to violate, or result in potential liabilities
under, any Superfund and Hazardous Waste Laws; (3) have received any notice,
order or demand from the Environmental Protection Agency or the Ohio Department
of Environmental Protection under any Superfund and Hazardous Waste Laws; (4)
have incurred any liability under any Superfund and Hazardous Waste Laws in
connection with the mismanagement, improper disposal or release of Materials;
(5) are aware of any inspection or investigation of any of the premises or
personal property owned or controlled by Borrowers or abutting property by any
federal, state or local agency for possible violations of the Superfund and
Hazardous Waste Laws.
To the best of each Borrower's knowledge, no prior owner or tenant of any
premises or property presently controlled or owned by such Borrower committed or
omitted any act which caused the
11
release of Materials on such premises or property which could give rise to a
lien thereon by any federal, state or local government. No notice or statement
of claim or lien affecting any property or premises owned or controlled by a
Borrower has been recorded or filed in any public records by any federal, state
or local government for costs, penalties, fines or other charges as to such
property.
Borrowers agree to indemnify and hold Lender harmless from all liability,
loss, cost, damage and expense, including attorney fees and costs of litigation,
arising from any and all of its violations of the Superfund and Hazardous Waste
Laws including those arising from any lien on any premises or property owned or
controlled by Borrowers by any federal, state and local government arising from
the presence of Materials. Borrowers further agree to reimburse Lender upon
demand for any costs incurred by Lender in connection with the foregoing.
Borrowers agree their obligations hereunder shall be continuous and shall
survive the repayment of all debts to Lender including repayment of all
Obligations.
The term "Materials" means any "oil," "hazardous material," "hazardous
wastes" or "hazardous substances" as defined under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601
et seq., as amended, the Resource Conservation and Recovery Act of 1976, 42
U.S.C. Section 6901 et seq., as amended, and Ohio hazardous waste laws and
regulations, and the foregoing are collectively the "Superfund and Hazardous
Waste Laws."
5. NEGATIVE COVENANTS
5.1 EBIT. Palletech and FIXCOR each will not permit their earnings before
interest and taxes to be less than the amounts shown on Schedule 5.1 for the
periods indicated on Schedule 5.1.
5.2 EQUIPMENT PURCHASE. Equipment financed under this Agreement will not be
delivered more than seven (7) days after the scheduled delivery date (each a
"Scheduled Delivery Date") approved by Lender for each item of equipment ordered
unless Borrowers repay to Lender all advances made by Lender respecting any such
equipment within seven (7)days of the Scheduled Delivery Date for such item of
equipment.
5.3 LIMITATIONS ON INDEBTEDNESS. Each Borrower will not issue any evidence of
indebtedness or create, assume, guarantee, become contingently liable for, or
suffer to exist indebtedness in addition to Indebtedness to the Lender, except
indebtedness or liabilities of such Borrower, other than for money borrowed,
incurred or arising in the ordinary course of business or as approved in writing
by Lender, which approval will not be unreasonably withheld.
5.4 SALE OF INTEREST. There shall not be any sale or transfer of ownership of
any interest in any Borrower without the Bank's prior written consent.
5.5 LOANS OR ADVANCES. Each Borrower will not make any loans or advances to any
individual, firm or corporation, including without limitation its officers and
employees; provided, however,
12
that a Borrower may make advances to its employees, including its officers, with
respect to expenses incurred or to be incurred by such employees which expenses
are reimbursable by such Borrower; and provided further, however, that such
Borrower may extend credit in the ordinary course of business in accordance with
customary trade practices.
5.6 DIVIDENDS AND DISTRIBUTIONS. Each Borrower will not, without prior written
permission of the Lender, which shall not be unreasonably withheld, pay any
dividends on or make any distribution on account of any class of such Borrower's
capital stock in cash or in property (other than additional shares of such
stock), or redeem, purchase or otherwise acquire, directly or indirectly, any of
such stock, except if such Borrower is a Subchapter S corporation, under the
regulations of the Internal Revenue Service of the United States, in which
event, so long as such Borrower is not in default hereunder, such Borrower may
distribute to the stockholders of such Borrower such amounts as are necessary to
pay the tax liability of such stockholders due as a result of such stockholders
interest in such Borrower.
5.7 INVESTMENTS. Without the prior written consent of Lender, which shall not
be unreasonably withheld, each Borrower will not (i) make investments in, or
advances to, any individual, partnership, corporation, limited liability
company, trust or other organization or person; or (ii) purchase or otherwise
invest in or hold securities, nonoperating real estate or other nonoperating
assets or purchase all or substantially all the assets of any entity.
5.8 MERGER. Each Borrower will not merge or consolidate or be merged or
consolidated with or into any other corporation.
5.9 SALE OF ASSETS. Each Borrower will not without Lender's prior written
consent sell, lease or otherwise dispose of any of its assets, except in the
ordinary and usual course of business and except for the purpose of replacing
machinery, equipment or other personal property which, as a consequence of wear,
duplication or obsolescence, is no longer used or necessary in such Borrower's
business, provided that fair consideration is received therefor; provided,
however, the Lender shall not unreasonably withhold consent in the event such
Borrower proposes to transfer any assets to a corporation (a "Subsidiary") for
which one hundred percent of the issued and outstanding capital stock is owned
by such Borrower, provided such Subsidiary executes and delivers such
guarantees, security agreements and other agreements reasonably requested by
Lender to perfect and preserve Lender's rights under this Agreement and the
other Loan Documents.
5.10 RESTRICTION ON LIENS. Each Borrower will not grant any security interest
in, or mortgage of, any of its properties or assets including the Collateral.
5.11 OTHER BUSINESS. Each Borrower will not engage in any business other than
the business in which it is currently engaged or a business reasonably allied
thereto.
6. DEFAULT
13
6.1 DEFAULT. "Event of Default" shall mean the occurrence of one or more of any
of the following events:
(a) Default of any liability, obligation or undertaking of any Borrower to
the Lender, hereunder or otherwise, including failure to pay in full
and when due any installment of principal or interest continuing for 5
business days with respect to any monetary obligation or continuing
for 5 business days after the giving of notice by the Lender with
respect to all other obligations.
(b) Failure of any Borrower to maintain aggregate collateral security
value satisfactory to the Lender continuing for 5 business days after
the giving of notice by the Lender.
(c) Default of any material liability, obligation or undertaking of any
Borrower to any other party continuing for 5 business days after the
giving of notice by the Lender.
(d) If any statement, representation or warranty heretofore, now or
hereafter made in connection with this Agreement or in any supporting
financial statement of any Borrower shall be determined by Lender to
have been false in any material respect when made continuing for 5
business days after the giving of notice by the Lender.
(e) The liquidation, termination or dissolution of, or the merger
consolidation of any Borrower, into another entity, or any Borrower
ceasing to carry on actively its present business or the appointment
of a receiver for the Borrower.
(f) The liquidation, termination or dissolution of any guarantor of the
Obligations or if a corporation, the merger or consolidation of any
such guarantor into another entity, or any guarantor of the
Obligations ceasing to carry on actively its present business, or the
appointment of a receiver for any guarantor of the Obligations or the
death of any guarantor of the Obligations or any partner or trustee of
any guarantor of the Obligations.
(g) The institution by or against any Borrower or guarantor of the
Obligations of any proceedings under the Bankruptcy Code 11 USC
Section 101 et seq. or any other law in which such Borrower or any
guarantor of the Obligations is alleged to be insolvent or unable to
pay their respective debts as they mature, or the making by any
Borrower or any guarantor of the Obligations of an assignment for the
benefit of creditors or the granting of a trust mortgage for the
benefit of creditors.
(h) The service upon the Lender hereof of a writ in which the Lender is
named as trustee of any Borrower or of any guarantor of the
Obligations.
(i) A judgment or judgments for the payment of money shall be rendered
against any Borrower and any such judgment shall remain unsatisfied
and in effect for any period of thirty (30) consecutive days without a
stay of execution.
14
(j) Any levy, seizure, attachment, execution or similar process shall be
issued or levied on any of the property of any Borrower.
(k) The termination of any guaranty of the Obligations.
(l) The occurrence of such a change in the condition or affairs (financial
or otherwise) of any Borrower or any guarantor or other surety for any
of the obligations, or the occurrence of any event or circumstance
such that the Lender, in its sole discretion, deems that it is
insecure or that the prospects for timely or full payment or
performance of any of the Obligations have been or may be impaired.
6.2 DEFAULT. If an Event of Default shall occur, at the election of the Lender,
all Obligations shall become immediately due and payable without notice or
demand, except with respect to Obligations payable on DEMAND, which shall be due
and payable on DEMAND, whether or not an Event of Default has occurred.
The Lender is hereby authorized, at its election, after an Event of Default
or after Demand, without any further demand or notice except to such extent as
notice may be required by applicable law, to take possession and/or sell or
otherwise dispose of all or any of the Collateral at public or private sale; and
the Lender may also exercise any and all other rights and remedies of a secured
party under the Code or which are otherwise accorded to it by applicable law,
all as the Lender may determine. If notice of a sale or other action by the
Lender is required by applicable law, unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, each Borrower agrees that five (5) days' written notice to
such Borrower, or the shortest period of written notice permitted by such law,
whichever is larger, shall be sufficient notice; and that to the extent
permitted by law, the Lender, its officers, attorneys and agents may bid and
become purchasers at any such sale, if public, and may purchase at any private
sale any of the Collateral that is of a type customarily sold on a recognized
market or which is the subject of widely distributed standard price quotations.
Any sale (public or private) shall be free from any right of redemption, which
each Borrower hereby waives and releases. No purchaser at any sale (public or
private) shall be responsible for the application of the purchase money. Any
balance of the net proceeds of sale remaining after paying all Obligations of
the Borrowers to the Lender shall be returned to the Borrowers or to such other
party as may be legally entitled thereto; and if there is a deficiency, the
Borrowers shall be responsible for the same, with interest. Upon demand by the
Lender, each Borrower shall assemble the Collateral and make it available to the
Lender at a place designated by the Lender which is reasonably convenient to the
Lender and such Borrower. Each Borrower hereby acknowledges that the Lender has
extended credit and other financial accommodations to such Borrower upon
reliance of such Borrower's granting the Lender the rights and remedies
contained in this Agreement including without limitation the right to take
immediate possession of the Collateral upon the occurrence of an Event of
Default or after DEMAND with respect to Obligations payable on DEMAND and each
Borrower hereby acknowledges that the Lender is entitled to equitable and
injunctive relief to enforce any of its rights and remedies hereunder or under
the Code and each
15
Borrower hereby waives any defense to such equitable or injunctive relief based
upon any allegation of the absence of irreparable harm to the Lender.
6.3 POWER OF ATTORNEY. Each Borrower hereby irrevocably constitutes and
appoints the Lender as such Borrower's true and lawful attorney, with full power
of substitution, at the sole cost and expense of such Borrower but for the sole
benefit of the Lender, upon the occurrence of an Event of Default or after
DEMAND with respect to Obligations payable on DEMAND, to convert the Collateral
into cash, including, without limitation, completing the manufacture or
processing of work in process, and the sale (either public or private) of all or
any portion or portions of the Inventory and other Collateral; to enforce
collection of the Collateral, either in its own name or in the name of such
Borrower, including, without limitation, executing releases, compromising or
settling with any Debtors and prosecuting, defending, compromising or releasing
any action relating to the Collateral; to receive, open and dispose of all mail
addressed to such Borrower and to take therefrom any remittances or proceeds of
Collateral in which the Lender has a security interest; to notify Post Office
authorities to change the address for delivery of mail addressed to such
Borrower to such address as the Lender shall designate; to endorse the name of
such Borrower in favor of the Lender upon any and all checks, drafts, money
orders, notes, acceptances or other instruments of the same or different nature;
to sign and endorse the name of such Borrower on and to receive as secured party
any of the Collateral, any invoices schedules of Collateral, freight or express
receipts, or bills of lading, storage receipts, warehouse receipts, or other
documents of title of the same or different nature relating to the Collateral;
to sign the name of such Borrower on any notice of the Debtors or on
verification of the Collateral; and to sign and file or record on behalf of such
Borrower any financing or other statement in order to perfect or protect the
Lender's security interest. The Lender shall not be obliged to do any of the
acts or exercise any of the powers hereinabove authorized, but if the Lender
elects to do any such act or exercise any such power, it shall not be
accountable for more than it actually receives as a result of such exercise of
power, and it shall not be responsible to the Borrowers except for willful
misconduct in bad faith. All powers conferred upon the Lender by this Agreement,
being coupled with an interest, shall be irrevocable so long as any Obligation
of the Borrowers to the Lender shall remain unpaid.
6.4 NONEXCLUSIVE REMEDIES. All of the Lender's rights and remedies not only
under the provisions of this Agreement but also under any other agreement or
transaction shall be cumulative and not alternative or exclusive, and may be
exercised by the Lender at such time or times and in such order of preference as
the Lender in its sole discretion may determine.
6.5 REASSIGNMENT TO BORROWER. Whenever the Lender deems it desirable that any
legal action be instituted with respect to any Collateral or that any other
action be taken in any attempt to effectuate collection of any Collateral, the
Lender may reassign the item in question to the Borrowers (and if the Lender
shall execute any such reassignment, it shall automatically be deemed to be
without recourse to the Lender in any event) and require the Borrowers to
proceed with such legal or other action at the Borrowers' sole liability, cost
and expense, in which event all amounts collected by the Borrowers on such item
shall nevertheless be subject to the Lender's security interest.
16
7. MISCELLANEOUS
7.1 WAIVERS. Each Borrower waives notice of nonpayment, demand, presentment,
protest or notice of protest of the Collateral, and all other notices, consents
to any renewals or extensions of time of payment thereof, and generally waives
any and all suretyship defenses and defenses in the nature thereof.
7.2 SEVERABILITY. If any provision of this Agreement or portion of such
provision or the application thereof to any person or circumstance shall to any
extent be held invalid or unenforceable, the remainder of this Agreement (or the
remainder of such provision) and the application thereof to other persons or
circumstances shall not be affected thereby.
7.3 SET-OFF. Any deposits, balances or other sums credited by or due from the
Lender or any of its affiliates to any Borrower and any security or other
property of any Borrower in the possession of the Lender, whether for
safekeeping or otherwise, may, at any time whether or not an Event of Default
has occurred or demand has been made, without notice to any Borrower, or
compliance with any other condition precedent now or hereafter imposed by
statute, rule of law, or otherwise (all of which are hereby expressly waived) be
set off, appropriated and applied by Lender against any and all of the
Obligations in such manner as the Lender in its sole discretion may
determine.
7.4 INDEMNIFICATION. Each Borrower shall indemnify, defend and hold the Lender
harmless of and from any claim brought or threatened against the Lender by such
Borrower, any guarantor or endorser of the Obligations, or any other person (as
well as from attorneys' reasonable fees and expenses in connection therewith) on
account of the Lender's relationship with such Borrower, or any guarantor or
endorser of the Obligations (each of which may be defended, compromised, settled
or pursued by the Lender with counsel of the Lender's election, but at the
expense of the Borrowers), except for any claim arising out of the gross
negligence or willful misconduct of the Lender. The within indemnification shall
survive payment of the Obligations, and/or any termination, release or discharge
executed by the Lender in favor of the Borrowers.
7.5 COSTS AND EXPENSES. The Borrowers shall pay to the Lender any and all costs
and expenses (including, without limitation, reasonable attorneys' fees, court
costs, litigation and other expenses) incurred or paid by the Lender in
establishing, maintaining, protecting or enforcing any of the Lender's rights or
the Obligations, including, without limitation, any and all such costs and
expenses incurred or paid by the Lender in defending the Lender's security
interest in, title or right to the Collateral or in collecting or attempting to
collect or enforcing or attempting to enforce payment of the Collateral.
7.6 COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be an original, but all of which shall constitute but one
agreement.
7.7 BINDING EFFECT OF AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the respective heirs, executors, administrators, legal
representatives, successors and assigns of the parties hereto, and shall remain
in full force and effect (and the Lender shall be entitled to rely thereon)
until terminated as to future transactions by written notice from either
17
party to the other party of the termination hereof; provided that any such
termination shall not release or affect any Collateral in which the Lender
already has a security interest or any Obligations incurred or rights accrued
hereunder prior to the effective date of such notice (as hereinafter defined) of
such termination. Notwithstanding any such termination, the Lender shall have a
security interest in all Collateral to secure the payment and performance of
Obligations arising after such termination as a result of commitments or
undertakings made or entered into by the Lender prior to such termination. The
Lender may transfer and assign this Agreement and deliver the Collateral to the
assignee, who shall thereupon have all of the rights of the Lender; and the
Lender shall then be relieved and discharged of any responsibility or liability
with respect to this Agreement and the Collateral.
7.8 FURTHER ASSURANCES. Each Borrower will from time to time execute and
deliver to the Lender and take or cause to be taken, all such other further
action as the Lender may request in order to effect and confirm or vest more
securely in the Lender all rights contemplated or to vest more fully in or
assure to the Lender the security interest in the Collateral granted to the
Lender by this Agreement or to comply with applicable statute or law and to
facilitate the collection of the Collateral.
7.9 AMENDMENTS AND WAIVERS. This Agreement may be amended and each Borrower may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, if such Borrower shall obtain the Lender's prior written
consent to each such amendment, action or omission to act. No delay or omission
on the part of Lender in exercising any right hereunder shall operate as a
waiver of such right or any other right and waiver on any one or more occasions
shall not be construed as a bar to or waiver of any right or remedy of Lender on
any future occasion.
7.10 TERMS OF AGREEMENT. This Agreement shall continue in force and effect so
long as any Obligations or obligation of any Borrower to Lender shall be
outstanding and is supplementary to each and every other agreement between each
Borrower and Lender and shall not be so construed as to limit or otherwise
derogate from any of the rights or remedies of Lender or any of the liabilities,
obligations or undertakings of each Borrower under any such agreement, nor shall
any contemporaneous or subsequent agreement between any Borrower and the Lender
be construed to limit or otherwise derogate from any of the rights or remedies
of Lender or any of the liabilities, obligations or undertakings of each
Borrower hereunder, unless such other agreement specifically refers to this
Agreement and expressly so provides.
7.11 NOTICES. Any notices under or pursuant to this Agreement shall be deemed
duly received and effective if delivered in hand to any officer of agent of any
Borrower or Lender, or if mailed by registered or certified mail, return receipt
requested, addressed to a Borrower or Lender at address set forth in this
Agreement or as any party may from time to time designate by written notice to
the other party.
7.12 MASSACHUSETTS LAW. This Agreement is intended to take effect as a sealed
instrument and has been executed or completed and is to be performed in
Massachusetts, and it and all transactions thereunder or pursuant thereto shall
be governed as to interpretation, validity, effect,
18
rights, duties and remedies of the parties thereunder and in all other respects
by the domestic laws of Massachusetts.
7.13 REPRODUCTIONS. This Agreement and all documents which have been or may be
hereinafter furnished by any Borrower to the Lender may be reproduced by the
Lender by any photographic, photostatic, microfilm, xerographic or similar
process, and any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made in the
regular course of business).
7.14 VENUE. Each Borrower irrevocably submits to the nonexclusive jurisdiction
of any federal or state court sitting in Massachusetts, over any suit, action or
proceeding arising out of or relating to this Agreement. Each Borrower
irrevocably waives, to the fullest extent it may effectively do so under
applicable law, any objection it may now or hereafter have to the laying of the
venue of any such suit, action or proceeding brought in any such court and any
claim that the same has been brought in an inconvenient forum each Borrow
irrevocably appoints the Secretary of State, at the State of Ohio as its
authorized agent to accept and acknowledge on its behalf any and all process
which may be served in any such suit, action or proceeding, consents to such
process being served (i) by mailing a copy thereof by registered or certified
mail, postage prepaid, return receipt requested to a Borrower and (ii) by
serving the same upon such agent, and agrees that such service shall in every
respect be deemed effective service upon a Borrower.
7.15 JURY WAIVER. THE BORROWERS AND LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY, AND AFTER AN OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, WAIVE
ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION
WITH THIS AGREEMENT, THE OBLIGATIONS, ALL MATTERS CONTEMPLATED HEREBY AND
DOCUMENTS EXECUTED IN CONNECTION HEREWITH. THE BORROWERS CERTIFY THAT NEITHER
THE LENDER NOR ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE LENDER WOULD NOT IN THE EVENT OF ANY SUCH
PROCEEDING SEEK TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
Witness Borrower:
Witness Borrower:
Palletech, Inc.
/s/ Xxxx Xxxxxxx By: /s/ Xxxx XxXxxxxxxxxx
----------------------------------- --------------------------------
Xxxx XxXxxxxxxxxx, President
Witness Borrower:
FIXCOR Industries, Inc.
19
By: /s/ Xxxx XxXxxxxxxxxx
----------------------------------- ---------------------------------
Xxxx XxXxxxxxxxxx, President
Fix-Corp International, Inc.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxx
----------------------------------- ---------------------------------
Xxxx Xxxxxx, President
Accepted at Boston, Massachusetts: Xxxxxx Xxxxxxxx Capital Corporation
By: /s/ Xxxxxx X. Xxxxx
------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
20
SCHEDULE 5.1.
FIXCORP PALLETECH
------- ---------
August, 1997 -0-
September, 1997 -0-
October, 1997 307,440.00
November, 1997 307,440.00
December, 1997 307,440.00
January, 1998 307,440.00 382,905.00
February, 1998 307,440.00 382,905.00
March, 1998 307,440.00 382,905.00
April, 1998 307,440.00 382,905.00
May, 1998 307,440.00 382,905.00
June, 1998 307,440.00 382,905.00
21
