EXHIBIT 10.4
CREDIT AGREEMENT
BY AND AMONG
OCEAN BIO-CHEM, INC.,
STAR-BRITE DISTRIBUTING, INC.,
STAR BRITE AUTOMOTIVE, INC.,
STAR BRITE DISTRIBUTING (CANADA), INC.,
KINPAK INC.
And
REGIONS BANK
DATED AS OF JULY 1, 2002
THIS INSTRUMENT PREPARED BY:
XXXX X. XXXXXXX
XXXXXX & Xxxxxx, P.C.
P. O. Xxx 0000
Xxxxxxxxxx, Xxxxxxx 00000-0000
(000) 000-0000
TABLE OF CONTENTS
Parties ......................................................1
Recitals ......................................................1
ARTICLE 1
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions...........................................2
Section 1.02 Effect of Headings and Table of Contents.............14
Section 1.03 Date of Credit Agreement.............................14
Section 1.04 Separability Clause..................................14
Section 1.05 Counterparts.........................................14
ARTICLE 2
ISSUANCE OF LETTERS OF
CREDIT; REIMBURSEMENT AND FEES
Section 2.01 Issuance of the Letters of Credit....................14
Section 2.02 Reimbursement........................................14
Section 2.03 Fees.................................................15
Section 2.04 Increased Costs......................................16
Section 2.05 Pledged Bonds........................................17
ARTICLE 3
REVOLVING LINE OF CREDIT
Section 3.01 Revolving Line of Credit ............................18
Section 3.02 Revolving Line of Credit Note........................19
Section 3.03 Prepayment of Revolving Line of Credit...............20
Section 3.04 Acceptance Fee.......................................20
(i)
ARTICLE 4
PAYMENTS, FEES, SECURITY
Section 4.01 Place and Time of Payments...........................20
Section 4.02 Late Payments........................................21
Section 4.03 Computation of Charges...............................21
Section 4.04 Statements of Account................................21
Section 4.05 Obligations of Borrowers Absolute....................21
Section 4.06 Security.............................................22
ARTICLE 5
CONDITIONS PRECEDENT TO
FUNDING OF CREDIT FACILITIES
Section 5.01 Conditions Precedent to Funding of Credit Facilities.22
Section 5.02 Additional Conditions for Disbursement
of 2002 Bond Proceeds..............................24
Section 5.03 Additional Conditions to Making Advances
under the Revolving Line of Credit.................24
ARTICLE 6
REPRESENTATIONS AND COVENANTS
Section 6.01 General Representations of the Borrowers ............25
Section 6.02 Corporate Existence..................................28
Section 6.03 Accounting Records...................................28
Section 6.04 Reports to Bank......................................28
Section 6.05 Notice of Default....................................29
Section 6.06 Litigation Notice....................................29
Section 6.07 Covenants Regarding Financial Condition..............29
Section 6.08 Amendments to Financing Documents....................31
Section 6.09 Incorporation of Covenants by Reference..............31
Section 6.10 Payment of Taxes.....................................31
Section 6.11 Maintenance of Properties............................31
Section 6.12 Operation of Collateral..............................32
Section 6.13 Other Agreements.....................................32
Section 6.14 Encumbrances.........................................32
Section 6.15 Maintenance of Insurance.............................32
Section 6.16 Compliance with Environmental Laws...................32
Section 6.17 Damage and Destruction...............................33
(ii)
Section 6.18 Condemnation.........................................33
Section 6.19 Redemption of Bonds..................................34
Section 6.20 Banking Relationship.................................34
Section 6.21 Alabama River Dock Facility..........................34
ARTICLE 7
EVENTS OF DEFAULT AND REMEDIES
Section 7.01 Events of Default....................................35
Section 7.02 Remedies.............................................36
Section 7.03 Acceleration of Reimbursement........................37
Section 7.04 No Remedy Exclusive..................................38
Section 7.05 Agreement to Pay Attorneys' Fees.....................38
Section 7.06 No Additional Waiver Implied by One Waiver...........38
Section 7.07 Remedies Subject to Applicable Law...................38
Section 7.08 Waiver by Borrowers..................................38
Section 7.09 Set Off..............................................39
ARTICLE 8
MISCELLANEOUS
Section 8.01 No Waiver............................................39
Section 8.02 Entire Agreement.....................................39
Section 8.03 Review by Borrowers..................................39
Section 8.04 Waiver of Trial by Jury..............................39
Section 8.05 Notices..............................................40
Section 8.06 Indemnification......................................41
Section 8.07 Liability of the Bank................................41
Section 8.08 Continuing Obligation................................42
Section 8.09 Participation........................................42
Section 8.10 Governing Law........................................42
Section 8.11 Costs, Expenses and Taxes............................43
Testimonium .....................................................44
Signatures of Borrowers.................................................44
Signature of Bank .....................................................46
(iii)
LIST OF EXHIBITS
Exhibit A Borrowing Base Certificate
Exhibit B Equipment
Exhibit C Legal Description of Real Property
Exhibit D 2002 Letter of Credit
Exhibit E Mortgage, Assignment of Leases and Security Agreement
Exhibit F Request for a Revolving Line of Credit Advance
Exhibit G Revolving Line of Credit Note
Exhibit H Security Agreement
Exhibit I Substitute Letter of Credit
Exhibit J Extension Agreement
(iv)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of July 1, 2002, is entered into by and
among OCEAN BIO-CHEM, INC. ("Ocean"), STAR-BRITE DISTRIBUTING, INC.
("Distributing"), STAR BRITE AUTOMOTIVE, INC. ("Automotive") and STAR BRITE
DISTRIBUTING (CANADA), INC. ("Canada"), corporations organized and existing
under the laws of the State of Florida, KINPAK INC., ("KINPAK") a corporation
organized and existing under the laws of the State of Alabama and REGIONS BANK,
an Alabama banking corporation (the "Bank"). Ocean, Distributing, Automotive,
Canada and KINPAK are herein sometimes referred to as the "Borrowers."
R E C I T A L S:
The Borrowers have requested that the Bank provide to the Borrowers the
following credit facilities (the "Credit Facilities"): (i) a direct-pay
irrevocable letter of credit (the "Substitute Letter") securing the payment of
$4,000,000 Industrial Refunding Revenue Bonds (KINPAK INC. Project) Series 1997
currently outstanding in the principal amount of $3,280,000 (the "1997 Bonds")
issued by The Industrial Development Board of the City of Xxxxxxxxxx (the
"Board"), (ii) a direct-pay irrevocable letter of credit (the "Letter of
Credit") securing the payment of $3,500,000 Industrial Development Revenue Bonds
(KINPAK INC. Project) Series 2002 (the "2002 Bonds") to be issued by the Board,
and (iii) a revolving working capital line of credit (the "Revolving Line of
Credit") in the maximum amount outstanding at any time of $5,000,000.
The 1997 Bonds were issued pursuant to a Trust Indenture dated as of
December 1, 1996, as amended and supplemented by First Supplemental Trust
Indenture dated as of March 1, 1997 (collectively, the "1997 Indenture") between
the Board and Regions Bank as Trustee (in such capacity the "1997 Trustee"). The
proceeds of the 1997 Bonds were used to refund certain prior revenue bonds of
the Board, the proceeds of which were used to renovate and improve a
manufacturing facility located in Montgomery, Alabama (the "Existing Facility")
and currently leased by the Board to KINPAK pursuant to Restated Lease Agreement
dated as of December 1, 1996, as amended and supplemented by First Supplemental
Lease Agreement dated as of March 1, 1997 (collectively the "1997 Lease"). The
Borrowers have requested that the Bank issue the Substitute Letter in
substitution for the existing letter of credit heretofore issued by First Union
National Bank of Florida securing the 1997 Bonds.
The 2002 Bonds will be issued pursuant to a Trust Indenture dated as of
July 1, 2002 (the "2002 Indenture") between the Board and Regions Bank, as
Trustee (acting in such capacity, the "2002 Trustee"). The Board will use the
proceeds of the 2002 Bonds to finance (i) the construction of an approximately
70,000 square foot addition to the Existing Facility and the acquisition of
certain machinery and equipment for use therein (collectively the "2002
Improvements") and (ii) the payment of a portion of the expenses of issuing the
1
2002 Bonds. KINPAK and the Board will enter into a Second Supplemental Lease
Agreement dated as of July 1, 2002 pursuant to which KINPAK will lease the 2002
Improvements from the Board and KINPAK will agree to pay additional rent to the
Board sufficient to pay the debt service on the 2002 Bonds. The Existing
Facility as improved by the 2002 Improvements is herein referred to as the
"Project." Regions Bank when acting in the capacity as both the 1997 Trustee and
2002 Trustee is herein referred to as the "Trustee."
As security for the payment of the 2002 Bonds, the Borrower will cause
the Bank to issue the Letter of Credit in favor of the 2002 Trustee in the
amount of (i) the aggregate principal amount of the 2002 Bonds, to enable the
2002 Trustee to pay the principal amount of the 2002 Bonds when due and to pay
the principal portion of the purchase price of 2002 Bonds tendered (or deemed
tendered) for purchase, plus (ii) interest on the 2002 Bonds for a period of 120
days at the rate of 12% per annum, to enable the 2002 Trustee to pay interest on
the 2002 Bonds when due and to pay the interest portion of the purchase price of
2002 Bonds tendered (or deemed tendered) for purchase.
The Revolving Line of Credit will be made available by the Bank to the
Borrowers pursuant to the terms hereof and the Borrowers will use the moneys
drawn under the Revolving Line of Credit to provide working capital for the
Borrowers' business operations. The obligations of the Borrowers under the
Revolving Line of Credit will be evidenced by a promissory note of the Borrowers
in favor of the Bank dated as of July 1, 2002.
As security for the Borrowers' obligations under this Agreement with respect to
the Substitute Letter, the Letter of Credit and the Revolving Line of Credit the
Borrowers are executing the Mortgage, Assignment of Leases and Security
Agreement hereafter referred to. As additional security for the Borrowers' Line
of Credit Obligations the Borrowers are executing the Security Agreement
hereafter referred to.
ARTICLE 1
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(1) The terms defined in this Article have the meanings assigned to
them in this Article. Singular terms shall include the plural as well as the
singular and vice versa.
(2) All accounting terms not otherwise defined herein have the meanings
assigned to them, and all computations herein provided for shall be made in
accordance with generally accepted accounting principles, consistently applied.
All references herein to "generally accepted accounting principles" refer to
such principles as they exist at the date of application thereof.
2
(3) All references in this instrument to a designated "Article,"
"Section" or other subdivision are to the designated articles, sections, and
subdivisions of this instrument as originally executed.
(4) The terms "herein," "hereof," and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
article, section or other subdivision.
(5) The term "person" shall include any individual, corporation,
partnership, limited liability company, joint venture, association, trust,
unincorporated organization and any government or any agency or political
subdivision thereof.
(6) Capitalized terms not otherwise defined in this Article shall have
the meaning assigned in the 1997 Indenture or the 2002 Indenture, as applicable.
(7) As used in this Agreement, the following terms shall have the
following meanings unless the context hereof shall otherwise indicate:
"A Drawing" shall mean a drawing under the Substitute Letter or
the Letter of Credit, as applicable, to pay the principal of the 1997
Bonds or the 2002 Bonds due to maturity, redemption, or acceleration.
"Account Receivable" shall mean a right to payment for goods sold
or leased or for services rendered by the Borrowers.
"Actual/360 Basis" shall mean a method of computing interest on
the basis of an assumed year of 360 days for the actual number of days
elapsed, meaning that the interest accrued for each day will be
computed by multiplying the interest rate applicable on that day by the
unpaid principal balance on that day and dividing the result by 360.
"Additional Project Equipment" shall mean all items of furniture,
furnishings, fixtures, machinery, equipment or other personal property
at any time installed in or about the Project and owned by the
Borrowers, or any thereof, the costs of which are not paid by the Board
from the proceeds of the Bonds, or are not otherwise Project Equipment.
"Advance" shall mean any amount advanced by the Bank to the
Borrowers under the Revolving Line of Credit.
"Affiliate" shall mean any corporation, limited liability
company, partnership or business association of which the Borrowers, or
any thereof, directly or indirectly controls, or is controlled by or is
under common control with the Borrowers, or any thereof, or a
Subsidiary.
3
"Automotive" shall mean Star Brite Automotive, Inc., a
corporation organized and existing under the laws of the State of
Florida, its successors and assigns as permitted herein.
"B Drawing" shall mean a drawing under the Substitute Letter or
the Letter of Credit, as applicable, to pay interest on the 1997 Bonds
or the 2002 Bonds.
"Bank" shall mean Regions Bank, an Alabama banking corporation
with a principal place of business in Montgomery, Alabama, and its
successors and assigns.
"Base Rate" shall mean the variable rate of interest designated
by the Bank periodically as the Bank's Commercial Base Rate. The Base
Rate is not necessarily the lowest rate charged by the Bank. The Base
Rate on the date of this Agreement is 4.75%.
"Board" shall mean The Industrial Development Board of the City
of Xxxxxxxxxx, its successors and permitted assigns.
"Bonds" shall mean both the 1997 Bonds and the 2002 Bonds unless
the context indicates that reference is made to only one or the other
of such series of bonds.
"Borrowers" shall mean Ocean, Distributing, Automotive, Canada
and KINPAK, or any one or more thereof, jointly and severally, unless
the context clearly indicates to the contrary.
"Borrowing Base Certificate" shall mean the Borrowing Base
Certificate in the form of Exhibit A hereto signed by Xx Xxxxxx, or any
other officer of Distributing or Ocean authorized by Ocean in writing
to sign such instrument.
"Business Day" shall mean any day other than (i) a Saturday or
Sunday; (ii) a day on which banking institutions are required or
authorized to remain closed in (A) the city in which the principal
office of the Trustee is located, (B) the city in which the principal
office of the Remarketing Agent is located, or (C) the city in which
the office of the Bank where drawings under the Letter of Credit are to
be made is located; or (iii) a day on which the payment system of the
Federal Reserve System is not operational.
"C Drawing" shall mean a drawing under the Substitute Letter or
the Letter of Credit, as applicable, to pay the purchase price of
Tendered Bonds.
4
"Canada" shall mean Star Brite Distributing (Canada), Inc., a
corporation organized and existing under the laws of the State of
Florida, its successors and assigns as permitted herein.
"Capital Expenditures" shall mean any expenditure for fixed
assets or which is properly chargeable to capital account in accordance
with generally accepted accounting principles.
"Closing Date" shall mean the date on which the initial Letter of
Credit is issued by the Bank.
"Collateral" shall mean all property and rights mortgaged,
assigned, pledged, or otherwise subject to the lien of the Mortgage or
the Security Agreement and all other collateral from time to time
securing the Obligations.
"Credit Agreement" or "Agreement" shall mean this instrument as
originally executed or as it may from time to time be supplemented,
modified or amended by one or more instruments entered into pursuant to
the applicable provisions hereof.
"Credit Amount" shall mean the maximum amount available to be
drawn under the Substitute Letter or the Letter of Credit, as
applicable, as reduced from time to time and reinstated from time to
time pursuant to the terms and conditions thereof.
"Credit Facilities" shall mean, collectively, the Substitute
Letter, the Letter of Credit and the Revolving Line of Credit.
"Debt" of any person shall mean (i) all indebtedness, whether or
not represented by bonds, debentures, notes or other securities, for
the repayment of borrowed money, (ii) all deferred indebtedness for the
payment of the purchase price of property or assets purchased, (iii)
all capitalized lease obligations, and (iv) all indebtedness secured by
any mortgage or pledge of, or lien on, property of such person, whether
or not indebtedness secured thereby shall have been assumed, and (v)
the aggregate amount available under any letter of credit issued for
the account of the Borrowers, to the extent proceeds from such letter
of credit are not required to be applied against any other Debt.
"Distributing" shall mean Star-Brite Distributing, Inc., a
corporation organized and existing under the laws of the State of
Florida, its successors and assigns as permitted herein.
5
"Eligible Account" shall mean and include only the net amount
(after eliminating from the aggregate face amount thereof all payments,
adjustments, discounts, credits and allowances applied thereto) of such
Accounts Receivable which have been outstanding not more than 90 days
from the date of invoice thereof, as the Bank shall deem eligible based
on the following considerations. The Bank may exclude any Account
Receivable from Eligible Accounts if:
(i) The subject goods have been shipped or delivered to a
Purchaser on a xxxx-and-hold, guaranteed sale, consignment,
approval or sale-or-return basis or subject to any other
repurchase or return agreement; or
(ii) Any material part of the subject goods has been
returned, rejected, lost or damaged; or
(iii) The Purchaser is located outside the United States,
and the subject goods have not been shipped on the security of a
banker's acceptance or letter of credit acceptable to the Bank
and pledged to the Bank, or the Account Receivable is not payable
in United States dollars; provided, however, Canadian Accounts
Receivable totaling less than 20% of the Borrowers total
outstanding Accounts Receivable may be used without compliance
with this subsection (iii) so long as they meet the 90 day aging
requirement; or
(iv) The Purchaser is also the Company's supplier or
creditor; or
(v) The Account Receivable is not evidenced by an invoice
in form acceptable to Bank; or
(vi) More than 75% in amount of the other Accounts
Receivable of the Purchaser have been outstanding more than 90
days from the date of invoice thereof; or
(vii) The Account Receivable arises out of transactions
with an employee, officer, agent, director, stockholder,
affiliate or subsidiary of the Borrowers; or
(viii) The general credit worthiness and financial
condition of the Purchaser are not reasonably acceptable to the
Bank; or
(ix) Any of the representations and warranties set
forth in the Security Agreement are not true and correct with
respect to such Account Receivable.
6
"Eligible Inventory" shall mean and include only such Inventory
of finished goods (not including supplies, parts or work-in-process)
that is located at one of the locations specified in the Security
Agreement as the place or place at which such goods are to be
maintained, that is in good and saleable condition, that meets all
standards imposed by any governmental agency, or department or
subdivision thereof, having regulatory authority over such goods or
over their use or sale, that is currently usable or saleable in the
normal course of the Borrowers' business and that is not obsolete or
unmerchantable, as the Bank, in the reasonable exercise of its
judgment, shall deem eligible, based on such credit and collateral
considerations as the Bank shall deem appropriate. Without limiting the
generality of the foregoing, the Bank may exclude any Inventory from
Eligible Inventory if any of the representations and warranties set
forth in the Security Agreement are not true and correct with respect
to such Inventory. The collateral value of Eligible Inventory shall be
computed at the lower of cost (on a first-in, first-out basis) or
market. Bulk raw materials, such as those stored in tanks and drums
with a marketable resale value as determined by the Bank may be
considered in determining inventory values.
"Equipment" shall mean the Project Equipment and the Additional
Project Equipment. As of the delivery of the Lease Agreement, the
Equipment is expected to consist of those items (whether or not
fixtures) of furniture, furnishings, fixtures, machinery, equipment or
other personal property that are generally described in Exhibit B
hereto.
"Eurodollar Reserve Percentage" shall mean the percentage which
is in effect from time to time under Regulation D of the Board of
Governors of the Federal Reserve System, as such regulation may be
amended from time to time, as the actual reserve requirement applicable
to the Bank with respect to Eurocurrency Liabilities (as that term is
defined in Regulation D), whether or not the Bank has any Eurocurrency
Liabilities subject to such reserve requirement at that time. The
Revolving Line of Credit Note Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" shall have the meanings stated in Section 7.01
hereof. An Event of Default shall "exist" if an Event of Default shall
have occurred and be continuing.
"Existing Facility" shall mean the manufacturing facilities
(land, buildings, other improvements, equipment, machinery, personal
property and fixtures) owned by the Board and leased to KINPAK and
located on the real property described in Exhibit C.
7
"Financing Documents" shall mean this Agreement, the Indentures,
the Lease Agreement, the Mortgage, the Security Agreement and the
Revolving Line of Credit Note.
"Financing Participants" shall mean the Borrowers, the Bank, the
Trustee, the Board, the Remarketing Agent and the holders of the Bonds.
"Governmental Approvals" shall mean any authorization, consent,
order, approval, license, lease, ruling, permit, tariff, rate,
certification, validation, exemption, filing or registration by or
with, or notice to, any Governmental Authority.
"Governmental Authority" shall mean any federal, state, municipal
or other governmental department (including, without limitation, any
department of buildings, fire, labor or health), commission, central
bank, board, bureau, agency, court, tribunal or other instrumentality,
domestic or foreign, and any arbitrator.
"Guaranteed Obligations" shall mean all guaranties, endorsements,
assumptions and other contingent obligations in respect of, or to
purchase or to otherwise acquire, Debt of others.
"Indentures" shall mean, collectively, the 1997 Indenture and the
2002 Indenture.
"Interest Expense" shall mean interest payable on Debt during the
period in question.
"Inventory" shall mean goods, merchandise and other personal
property wherever located now or hereafter held by the Borrowers for
sale or lease or furnished or to be furnished under contracts of
service or otherwise, raw materials, parts, finished goods,
work-in-process and supplies and materials used or consumed, or to be
used or consumed, in the Borrowers' present or any future business, and
all such property the sale, lease or other disposition of which has
given rise to accounts receivable and which has been returned to or
repossessed or stopped in transit by the Borrowers.
"KINPAK" shall mean KINPAK INC., a corporation organized and
existing under the laws of the State of Alabama, and its successors and
assigns as permitted herein.
"Laws" shall mean all laws, statutes, codes, ordinances, orders,
awards, judgments, decrees, injunctions, approvals, permits,
franchises, requirements, regulations and licenses of any Governmental
Authority.
8
"Lease Agreement" shall mean the Restated Lease Agreement dated
as of December 1, 1996, as amended and supplemented by First
Supplemental Lease Agreement dated as of March 1, 1997, and by Second
Supplemental Lease Agreement dated as of July 1, 2002, between KINPAK
and the Board relating to the Project, including any amendments or
supplements to such instrument from time to time entered into pursuant
to the applicable provisions thereof.
"Letter of Credit" shall mean the letter of credit with respect
to the 2002 Bonds issued by the Bank in favor of the Trustee
substantially in the form of Exhibit D hereto.
"Letters of Credit" shall mean, collectively, the Letter of
Credit and the Substitute Letter.
"Liabilities" shall mean all Debt and all other items (including
taxes accrued as estimated) which, in accordance with generally
accepted accounting principles applied on a consistent basis, would be
included in determining total liabilities as shown on the liabilities
side of a balance sheet.
"LIBOR Base Rate" shall mean the simple per annum interest rate
determined by the Bank as follows: On the LIBOR Interest Determination
Date relating to each LIBOR Interest Period, the Bank shall obtain such
number of offered quotations as the Bank deems appropriate and as are
reasonably available in the London Interbank Borrowing Market at
approximately 11:00 a.m. Montgomery, Alabama, time on the LIBOR
Interest Determination Date relating to such LIBOR Interest Period, for
deposits in Dollars in an amount approximately equal (to the nearest
$50,000) to the principal amount of the Revolving Line of Credit that
will be outstanding on the first day of such LIBOR Interest Period and
for a length of time of approximately one month. The LIBOR Base Rate
shall be the arithmetic average (rounded to the nearest one-sixteenth
of one percent (1/16%)) of such offered quotations, as determined by
the Bank.
"LIBOR Interest Determination Date" shall mean the date which is
the second Business Day immediately preceding the first day of a LIBOR
Interest Period.
"LIBOR Interest Period" shall mean a period of one month
commencing on July 1, 2002 and each successive one month period
thereafter, commencing on the first day of each calendar month
thereafter. Notwithstanding the foregoing, however, any applicable
LIBOR Interest Period which would otherwise end on a day which is not a
Business Day shall end on the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such LIBOR
Interest Period shall end on the next preceding Business Day.
9
"Line of Credit Obligations" shall mean all indebtedness or
obligations of the Borrowers to the Bank under or related to the
Revolving Line of Credit.
"Lien" shall mean any mortgage, pledge, encumbrance, security
interest, assignment or other charge of any kind, including, without
limitation, any conditional sale agreement or other title retention
agreement.
"Mortgage" shall mean the Mortgage, Assignment of Leases and
Security Agreement from the Board and KINPAK to the Bank dated as of
July 1, 2002, granting a lien on that portion of the Collateral
constituting real property securing all of the extensions of credit
under this Agreement, substantially in the form of Exhibit E hereto.
"Mortgaged Site" means the land described in Exhibit C hereto
together with all buildings, structures, plants, and other facilities
located thereon constituting real property and any additional land or
other real property which under the terms hereof is or becomes part of
the Collateral.
"Obligations" shall mean all indebtedness or obligations of the
Borrowers to the Bank under this Agreement or secured by the Mortgage
or the Security Agreement, including without limitation (i) the
Borrowers' obligation to reimburse the Bank for draws made under the
Letters of Credit and (ii) the Borrowers' obligation to pay fees and
charges to the Bank for the issuance and continuation of the Letters of
Credit and (iii) the Borrowers' obligations under the Revolving Line of
Credit Note.
"Ocean" shall mean Ocean Bio-Chem, Inc., a corporation organized
and existing under the laws of the State of Florida, and its successors
and assigns as permitted herein.
"Opinion of Counsel" shall mean an opinion from an attorney or
firm of attorneys with experience in the matter to be covered in the
opinion.
"Pledged Bonds" shall mean the Bonds purchased pursuant to the
optional or mandatory tender provisions of the Indentures with moneys
drawn under the Letters of Credit.
"Project" shall mean, collectively, the Existing Facility, the
2002 Improvements, the Project Equipment and the Additional Project
Equipment.
"Project Equipment" shall mean (i) all items (whether or not
fixtures) of furniture, furnishings, fixtures, machinery, equipment or
other personal property the costs of which, in whole or in part, are
paid by the Board out of the proceeds of the Bonds and (ii) all items
(whether or not fixtures) of furniture, fixtures, machinery, equipment
10
or other personal property at any time installed in or about the
Project that are acquired by the Board or the Borrowers in substitution
for or replacement of property theretofore constituting part of the
Project Equipment and that, under the provisions of the Lease Agreement
and the Indentures, are to constitute part of the Project Equipment.
"Purchaser" shall include any buyer or lessee of Inventory from
the Borrowers, any customer for whom services have been rendered or
goods sold or leased by the Borrowers and any other person who is now
or may hereafter become obligated to the Borrowers on an Account
Receivable.
"Receivables" shall mean and includes all Accounts Receivable and
any and all other rights of the Borrowers to the payment of money or
other forms of consideration of any kind (whether classified under the
Uniform Commercial Code as accounts, contract rights, chattel paper,
general intangibles, or otherwise) including, but not limited to,
accounts receivable, letters of credit and the right to receive payment
thereunder, chattel paper, tax refunds, insurance proceeds, contract
rights, notes, drafts, instruments, documents, acceptances, and all
other debts, obligations and liabilities due the Borrowers in whatever
form and from whatever person or entity, whether or not related to the
Borrowers' business operations wherever located, and further including
all cash and noncash proceeds of any of the foregoing.
"Remarketing Agent" shall mean Merchant Capital, L.L.C. or its
successor or successors as remarketing agent for the Bonds.
"Remarketing Agreement" shall mean the Remarketing Agreement
dated as of July 1, 2002 among the Remarketing Agent, the Trustee, the
Board and KINPAK relating to the Bonds.
"Request for an Advance" shall mean a Request for a Revolving
Line of Credit Advance in the form of Exhibit F hereto signed by Xx
Xxxxxx or any other officer of the Borrowers authorized by the
Borrowers in writing to sign such instrument.
"Revolving Line of Credit" shall mean the revolving line of
credit provided to the Borrowers by the Bank as more fully described in
Section 3.01.
"Revolving Line of Credit Note" shall mean the Revolving Line of
Credit Note of the Borrowers in favor of the Bank substantially in the
form of Revolving Line of Credit Note attached hereto as Exhibit G.
"Revolving Line of Credit Note Rate" shall mean a simple per
annum interest rate equal to the sum of (a) the quotient (rounded to
the nearest one-sixteenth of one percent (1/16%)) of (i) the LIBOR Base
11
Rate divided by (ii) one minus the Eurodollar Reserve Percentage,
stated as a decimal, plus 275 basis points. In the event of an Event of
Default by the Company under the Revolving Line of Credit Note as
defined in Section 7.01 hereof, the Revolving Line of Credit Note Rate
shall be increased by 2% per annum above the rate otherwise applicable.
"Security Agreement" shall mean that certain Security Agreement
dated as of July 1, 2002 between the Borrowers and the Bank
substantially in the form of Security Agreement attached hereto as
Exhibit H.
"Shareholders" shall mean any persons or entities that, as of the
time in question, hold beneficial or legal title to any of the capital
stock of the Borrowers.
"Subordinated Debt" shall mean Debt as to which payment of the
principal thereof and interest (and premium, if any) thereon shall be
(i) subordinated and subject in right of payment to the prior payment
in full of the Obligations of the Borrowers and (ii) deferred in any
event (including without limitation bankruptcy, reorganization or
similar proceedings with respect to the Borrowers) until payment in
full of all Obligations hereunder has been made.
"Subsidiary" shall mean any corporation, limited liability
company, partnership, or other business association of which the
Borrowers and/or one or more subsidiaries owns directly or indirectly,
50% or more of capital stock or equity interest.
"Substitute Letter" shall mean the letter of credit with respect
to the 1997 Bonds issued by the Bank in favor of the 2002 Trustee
substantially in the form of Exhibit I hereto.
"Tangible Net Worth" shall mean the sum of the amounts set forth
on the balance sheet of Ocean as shareholders' equity (including
without limitation the par or stated value of all outstanding capital
stock, retained earnings, additional paid-in capital, capital surplus
and earned surplus), plus (x) the outstanding amount of any
Subordinated Debt, less the sum of (i) any surplus resulting from any
write-up of assets, (ii) goodwill, (iii) patents, trademarks,
copyrights, leasehold improvements not recoverable at the expiration of
a lease, and deferred charges (including, but not limited to,
unamortized debt, discount and expense, organization expenses,
experimental and developmental expenses, but excluding prepaid
expenses), (iv) any amounts at which shares of capital stock of such
person appear on the asset side of the balance sheet and (v) any
amounts due from or owed by any shareholder or Affiliate (other than
amounts included under clause (x) above).
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"Tendered Bonds" shall mean Bonds tendered (or deemed tendered)
for purchase pursuant to the optional or mandatory tender provisions of
the Indentures.
"Termination Date" shall mean the date on which the Substitute
Letter or the Letter of Credit, as applicable, will by its terms
expire, unless the Substitute Letter or the Letter of Credit is
terminated on an earlier date in accordance with its terms.
"Trustee" shall mean Regions Bank, an Alabama banking corporation
with a principal place of business in Montgomery, Alabama, in its
capacity as trustee under the Indentures, and its successors and
assigns.
"1997 Bonds" shall mean the $4,000,000 aggregate principal amount
of Industrial Refunding Revenue Bonds (KINPAK INC. Project) Series 1997
issued by the Board pursuant to the 1997 Indenture.
"1997 Indenture" shall mean that certain Trust Indenture dated as
of December 1, 1996, as amended and supplemented by First Supplemental
Trust Indenture dated as of March 1, 1997, between the Board and the
Trustee relating to the 1997 Bonds, including any amendments or
supplements to such instrument from time to time entered into pursuant
to the applicable provisions thereof.
"1997 Trustee" shall mean Regions Bank as trustee under the 1997
Indenture.
"2002 Bonds" shall mean the $3,500,000 aggregate principal amount
of Industrial Development Revenue Bonds (KINPAK INC. Project) Series
2002 issued by the Board pursuant to the 2002 Indenture.
"2002 Improvements" shall mean the approximately 70,000 square
foot addition to the Existing Facility and the additional machinery and
equipment for use therein to be purchased by the Board and financed by
the proceeds of the 2002 Bonds.
"2002 Indenture" shall mean that certain Trust Indenture dated as
of July 1, 2002, between the Board and the Trustee relating to the 2002
Bonds, including any amendments or supplements to such instrument from
time to time entered into pursuant to the applicable provisions
thereof.
"2002 Trustee" shall mean Regions Bank as trustee under the 2002
Indenture.
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SECTION 1.02 EFFECT OF HEADINGS AND TABLE OF CONTENTS
The article and section headings herein and in the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.03 DATE OF CREDIT AGREEMENT
The date of this Agreement is intended as and for a date for the
convenient identification of this Credit Agreement and is not intended to
indicate that this Agreement was executed and delivered on said date.
SECTION 1.04 SEPARABILITY CLAUSE
If any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.05 COUNTERPARTS
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed an original, but all such counterparts shall
together constitute but one and the same instrument.
ARTICLE 2
ISSUANCE OF LETTERS OF
CREDIT; REIMBURSEMENT AND FEES
SECTION 2.01 ISSUANCE OF THE LETTERS OF CREDIT
(a) The Borrowers hereby request and instruct the Bank to issue the
Letters of Credit substantially in the respective forms of Exhibits D and I
hereto and the Letters of Credit are subject to the terms and conditions of this
Agreement.
(b) The Letters of Credit shall be issued on the date of delivery of
the 2002 Bonds to the original purchaser thereof from the Board.
SECTION 2.02 REIMBURSEMENT
(a) On each date that the Bank honors any A Drawing, B Drawing or C
Drawing under the Letters of Credit, the Borrowers shall immediately reimburse
the Bank for the amount of such draw.
(b) In the event that the Borrowers shall fail to reimburse the Bank on
the day of each drawing under the Letters of Credit, the Borrowers shall pay to
the Bank interest on the unreimbursed amount of each drawing at a variable per
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annum rate equal to the Base Rate plus 2% from the date such drawing is paid by
the Bank until the amount of such drawing is reimbursed in full to the Bank.
Such interest shall be payable in arrears on the first day of each month
following such drawing and on the date that such drawing is reimbursed in full
to the Bank. Failure by the Borrowers to reimburse any such drawing shall
nevertheless be a default hereunder, regardless of the payment of interest, and
the Bank shall be entitled to immediately exercise all rights and remedies for a
default of the Borrowers herein contained.
(c) No interest shall be payable with respect to any drawing if the
Bank is reimbursed in full for such drawing by 12:00 noon (Montgomery, Alabama
time) on the same date that such drawing is paid by the Bank.
(d) All amounts received by the Bank in respect of principal, premium
or interest on Pledged Bonds shall be credited first against interest payable on
the unreimbursed amount of the C Drawing with respect to such Pledged Bonds and
the balance, if any, shall be credited against the amount of such C Drawing.
(e) Anything herein to the contrary notwithstanding, the Borrowers will
not reimburse the Bank for any A Drawing, B Drawing or C Drawing until the same
has been honored in full by the Bank, and no such reimbursement shall be
prepaid.
SECTION 2.03 FEES
(a) The Borrowers agree to pay to the Bank an annual fee, payable in
four installments, calculated at the rate of 1.12% per annum on the Credit
Amount available to be drawn under the Letters of Credit (computed on the date
each such installment is payable). Such fees shall be payable in advance on the
date of issuance of the Letters of Credit for the period beginning on such date,
and ending on September 1, 2002, and quarterly thereafter on each March 1, June
1, September 1 and December 1. Fees payable for the last quarterly payment shall
be prorated based on the number of days during which the Letters of Credit are
outstanding during such period.
(b) The Borrowers shall continue to pay the 1997 Trustee its annual fee
of $2,500 in connection with the 1997 Bond issue. In addition, the Borrowers
shall pay the 2002 Trustee a $2,500 acceptance fee on the date of closing and a
$2,500 annual fee payable on the date of closing for the first year, and
annually thereafter.
(c) In addition to the fees payable under subsection (a) above, the
Borrowers shall pay to the Bank such amount as shall at the time of a transfer
of the Letters of Credit then be the charge which the Bank is customarily making
for transfers of similar letters of credit. Such charges shall be paid within
ten days of receipt by the Borrowers of a written statement therefor.
(d) For each draw on the Letters of Credit the Borrowers shall pay a
processing fee in the amount then customarily charged by the Trustee for draws
under letters of credit similar to the Letters of Credit (currently $65) and the
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customary drawing fee of the Bank's International Department for each drawing
under the Letters of Credit (currently $100). The processing fee and the drawing
fee shall be due on the date such draw is made.
(e) At closing, the Borrowers shall pay the Bank an acceptance fee of
$17,699.60.
Section 2.04 Increased Costs
(a) If, after the date of delivery of this Agreement, any change in any
Law or regulation or in the interpretation, administration or enforcement
thereof by any court or Governmental Authority charged with the administration
thereof or any action by any Governmental Authority (whether or not constituting
or resulting from such change) shall either
(1) impose, modify or deem applicable any reserve, assessment,
special deposit or similar requirement against letters of credit issued
by the Bank, or
(2) impose on the Bank any other condition regarding this
Agreement or the Letters of Credit,
and the result of any such event shall be to increase the cost to the Bank of
issuing or maintaining the Letters of Credit (which increase in cost shall be
the result of the Bank's reasonable allocation of the aggregate of such cost
increases resulting from such events and shall be calculated without giving
effect to any participation granted in the Letters of Credit), then, upon demand
by the Bank, the Borrowers shall pay to the Bank from time to time, within 30
days of the Borrowers' receipt of the certificate referred to in paragraph
2.04(b) below, as specified by the Bank in writing, such additional amounts
which shall be sufficient to compensate the Bank for the portion of such
increased costs that are allocable to the Letters of Credit.
(b) The Bank shall deliver to the Borrowers a certificate as to such
increased costs incurred by the Bank as a result of any event referred to in
subsection (a) of this Section, and such certificate shall be conclusive, absent
manifest error, as to the amount thereof. In making the determination
contemplated by such certificate, the Bank may make such reasonable estimates,
assumptions, allocations, and the like that the Bank deems to be appropriate.
(c) The Bank shall make a good faith effort to notify the Borrowers
when the Bank becomes aware of circumstances that may in the future require the
imposition of increased costs pursuant to this Section, but the failure to give
such notice shall not preclude the imposition of such increased costs.
(d) If, after the date of this Agreement, the Bank shall have
determined that the adoption or implementation of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
16
administration thereof, or compliance by the Bank with any request or directive
regarding capital adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the effect of
reducing the rate of return on the Bank's capital, on this credit facility or
otherwise, as a consequence of its obligations hereunder and under the Letters
of Credit to a level below that which the Bank could have achieved but for such
adoption, change or compliance (taking into consideration the Bank's policies
with respect to capital adequacy) by an amount deemed by the Bank to be
material, then from time to time, promptly upon demand by the Bank, the
Borrowers hereby agree to pay the Bank such additional amount or amounts as will
compensate the Bank for such reduction. A certificate of the Bank claiming
compensation under this subsection and setting forth the additional amount or
amounts to be paid to it hereunder shall be conclusive absent manifest error. In
determining any such amount, the Bank may use any reasonable averaging and
attribution methods.
(e) Upon the occurrence of any of the events described in paragraphs
2.04(a) or (d) above, the Borrowers may, at their option, provide a substitute
letter or letters of credit for the Letters of Credit, in which event the Bank
will refund any prepaid letter of credit fees provided all Obligations relating
to the Letters of Credit have been paid in full.
Section 2.05 Pledged Bonds
(a) As additional security for the performance of its obligations under
this Agreement, KINPAK hereby pledges, assigns, hypothecates and transfers to
the Bank all of its right, title and interest in and to the Pledged Bonds, and
does hereby grant to the Bank a security interest in the Pledged Bonds and all
amounts payable thereon and the proceeds thereof.
(b) If the Bank is reimbursed for the purchase price of Pledged Bonds
with respect to which a C Drawing has been made, such Pledged Bonds shall be
released from the pledge and assignment made hereby and shall be delivered to or
upon the order of KINPAK.
(c) All payments of principal and interest on Pledged Bonds shall be
made directly to the Bank. If, while the Bank or its designated agent holds
Pledged Bonds, KINPAK shall receive any interest or principal payment in respect
of such Pledged Bonds, KINPAK agrees to accept the same as agent for the Bank
and to hold the same in trust on behalf of the Bank and to deliver the same
forthwith to the Bank. All sums of money so paid in respect of principal,
premium or interest on such Pledged Bonds which are received by KINPAK and paid
to the Bank, or which shall be received directly by the Bank from the Trustee,
shall be credited against the reimbursement obligation of the Borrowers as
provided in Section 2.02(d).
(d) If an Event of Default exists, the Bank may, without notice,
exercise all rights, privileges or options pertaining to any Pledged Bonds as if
it were the absolute owner thereof, upon such terms and conditions as it may
determine, all without liability except to account to the Borrowers for property
actually received by it. In addition to the rights and remedies granted to it in
this Agreement, the Bank or its designated agent shall have the authority to
exercise all rights and remedies of a secured party under the Alabama Uniform
Commercial Code. The Borrowers shall be liable for the deficiency if the
17
proceeds of any sale or other disposition of the Pledged Bonds and the
Collateral are insufficient to pay all amounts to which the Bank is entitled.
The Bank shall have no duty to exercise any of such rights, privileges or
options and shall not be responsible for any failure to do so or any delay in so
doing.
(e) Except as contemplated herein, without the prior written consent of
the Bank, KINPAK agrees that it will not sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Pledged Bonds,
nor will it create, incur or permit to exist any pledge, lien, mortgage,
hypothecation, security interest, charge, option or any other encumbrance with
respect to any of the Pledged Bonds, or any interest therein, or any proceeds
thereof, except for the lien and security interest provided for by this
Agreement.
(f) KINPAK further agrees to do or cause to be done all such other
reasonable acts and things as may be necessary to make any disposition or sale
of any portion or all of the Pledged Bonds permitted by this Agreement valid and
binding and in compliance with any and all applicable laws, regulations, orders,
writs, injunctions, decrees or awards of any and all courts or governmental
authorities having jurisdiction over any such disposition or sales, all at
KINPAK's expense.
ARTICLE 3
REVOLVING LINE OF CREDIT
SECTION 3.01 REVOLVING LINE OF CREDIT
(a) From and after the date of this Agreement to and including May 31,
2003, the Bank agrees, upon the terms and subject to the conditions of this
Agreement, to lend to the Borrowers, and the Borrowers may from time to time
borrow from the Bank and repay and reborrow, up to a maximum aggregate principal
amount at any one time outstanding under the Revolving Line of Credit Note of
$5,000,000. In no event will Advances be made at such times or in such amounts
that the aggregate principal amount of all such Advances hereunder at any one
time outstanding would exceed the lesser of $5,000,000 and (i) 80% of the then
Eligible Accounts, plus (ii) 50% of the then Eligible Inventory. Each Advance
under this Agreement will be made upon the written request or, at the option of
the Bank, oral request, of the Borrowers to the Bank, which request shall, if
written, be in the form of a Request for an Advance and, if oral, shall contain
the same certification and information as a Request for an Advance and shall be
confirmed by a facsimile of a Request for an Advance followed by the original
thereof. All requests for Advances (and the facsimile concerning any oral
Request for an Advance) shall be received by the Bank no later than 12:00 noon
of the Business Day on which the Advance is to be made. To induce the Bank to
accept oral requests for Advances, the Borrowers agree that the Bank may rely on
instructions given by telephone by any person purporting to be authorized to act
on behalf of the Borrowers , and the Borrowers agree to indemnify and hold
harmless the Bank against all damages, losses, costs and expenses (including
attorney's fees) arising out of or relating to the reliance by the Bank on any
oral request for Advances. Provided the same is a Business Day, on the date of
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the requested Advance, upon satisfaction of the conditions specified in Article
5, the Bank shall make the amount of the Advance available to the Borrowers by
crediting the proceeds thereof to the general deposit account in the name of one
or more of the Borrowers, as designated in writing by certificate signed by all
of the Borrowers, in the Bank. If the date of the requested Advance is not a
Business Day, the Advance shall be made on the first Business Day thereafter,
upon the satisfaction of the conditions specified in Article 5. No Advance shall
be in an amount less than $1,000. Not more than one request for an Advance shall
be made on any day.
(b) The Bank may, upon the annual written request of the Borrowers and
in the Bank's sole and absolute discretion, renew the Revolving Line of Credit.
Any such renewal shall be for a term of one year, or such other term as the Bank
shall agree upon, measured from the date of the amendment to this Agreement
reflecting such renewal. The terms and conditions upon which such renewal is
granted, shall be subject to the Bank's sole and absolute discretion. Neither
delay in the Bank's response, nor the Bank's failure to respond, to the
Borrowers' request for a renewal of the Revolving Line of Credit shall be deemed
to constitute the Bank's approval of or consent to any such renewal. Any such
renewal shall only be binding upon the Bank if expressly approved or consented
to by the Bank in writing. Attached hereto as Exhibit J is a form of Extension
Agreement which may be used to evidence extensions of the Revolving Line of
Credit.
(c) Not later than Friday of each week, the Borrowers shall deliver to
the Bank a Borrowing Base Certificate effective as of the end of the preceding
week setting forth the Borrowers Eligible Accounts and Eligible Inventory..
(d) If any Borrowing Base Certificate shows that the aggregate
principal amount of all Advances hereunder exceeds the lesser of $5,000,000 and
(i) 80% of the then Eligible Accounts, plus (ii) 50% of the then Eligible
Inventory, the amount of such excess shall be paid by the Borrowers to the Bank
within 15 days of the date of such Borrowing Base Certificate.
SECTION 3.02 REVOLVING LINE OF CREDIT NOTE
The Revolving Line of Credit shall be in the maximum principal amount
of $5,000,000. A form of the Revolving Line of Credit Note is attached hereto as
Exhibit G. The Revolving Line of Credit Note shall evidence the obligations of
the Borrowers under the Revolving Line of Credit. The Revolving Line of Credit
Note shall be payable in full on June 1, 2003, unless such maturity date is
extended as provided in Section 3.01(b), in which event the Revolving Line of
Credit Note shall be payable in full on such extended maturity date. All amounts
outstanding under the Revolving Line of Credit Note shall bear interest from the
date of the Revolving Line of Credit Note until the latter of payment in full
and termination of the obligation of the Bank to make Advances at the rate per
annum (computed on an Actual/360 Basis) equal to the Revolving Line of Credit
Note Rate. Such interest shall be payable monthly on the fifth day of each month
in each year and upon payment in full. The Borrowers agree to repay the
Revolving Line of Credit in accordance with the terms contained herein and in
the Revolving Line of Credit Note. The Revolving Line of Credit Note shall be
valid and enforceable as to the aggregate amount of the Revolving Line of Credit
outstanding from time to time, whether or not the full amount of the Revolving
Line of Credit is actually advanced by the Bank to the Borrowers.
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SECTION 3.03 PREPAYMENT OF REVOLVING LINE OF CREDIT
The Revolving Line of Credit may be prepaid in full at any time without
premium or penalty by, but only by the Borrowers' delivery to the Bank of at
least 30 days advance written notice of the Borrowers' intent to prepay the
Revolving Line of Credit. The fact that no amount may be outstanding under the
Revolving Line of Credit Note at any point in time shall not be deemed to
constitute the Borrowers' intent, or notice of the Borrowers' intent, to prepay
the Revolving Line of Credit.
SECTION 3.04 ACCEPTANCE FEE
At closing, the Borrowers shall pay the Bank an acceptance fee of
$5,000.
ARTICLE 4
PAYMENTS, FEES, SECURITY
SECTION 4.01 PLACE AND TIME OF PAYMENTS
(a) All payments by the Borrowers to the Bank hereunder shall be made
in lawful currency of the United States and in immediately available funds to
the Bank at its hand delivery address set forth in Section 8.05 hereof or at
such other address within the continental United States as shall be specified by
the Bank by notice to the Borrowers.
(b) All amounts payable by the Borrowers to the Bank hereunder for
which a payment date is expressly set forth herein (including without limitation
payments due pursuant to Sections 2.02, 2.03 and 3.02) shall be payable without
notice or written demand by the Bank. All amounts payable by the Borrowers to
the Bank hereunder for which no payment date is expressly set forth herein shall
be payable on written demand by the Bank to the Borrowers.
(c) The Bank may, at its option, send written notice to the Borrowers
of amounts payable pursuant to Sections 2.02, 2.03 and 3.02, but the failure to
send such notice shall not affect or excuse the Borrowers' obligation to make
payment of the amounts required by such Sections on the due date specified in
such Sections.
(d) Payments which are due on a day which is not a Business Day shall
be payable on the next succeeding Business Day, and any interest payable thereon
shall be payable for such extended time at the specified rate.
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SECTION 4.02 LATE PAYMENTS
Except as provided in Section 2.02(b) relating to reimbursements of
amounts drawn under the Letters of Credit, with respect to all amounts payable
to the Bank by the Borrowers pursuant to this Article (i) which are not paid
within 10 days of the due date, in the case of amounts payable on a specified
date, or (ii) which are not paid within 10 days of written notice to the
Borrowers, in the case of amounts payable on demand, the Borrowers agree to pay
to the Bank on demand interest at a variable per annum rate equal to the Base
Rate plus 2%, for each day from the specified date of payment, or the date of
written demand for payment, as the case may be, to the date payment is made.
SECTION 4.03 COMPUTATION OF CHARGES
The interest and charges provided for in this Agreement based upon
annual rates shall be computed on an Actual/360 Day Basis. All interest rates
based upon the LIBOR Base Rate shall change when and as the LIBOR Base Rate
shall change, effective on the opening of business on the date of any such
change.
SECTION 4.04 STATEMENTS OF ACCOUNT
The Bank will account to the Borrowers with a statement of charges and
payments made pursuant to this Agreement.
SECTION 4.05 OBLIGATIONS OF BORROWERS ABSOLUTE
The obligations of the Borrowers under this Agreement and the Revolving
Line of Credit Note shall be absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Agreement, under all
circumstances whatsoever, including, without limitation, the following:
(1) any lack of validity or enforceability of the Letters of
Credit, the Bonds or any of the Financing Documents or the impairment,
termination or cancellation of the Lease Agreement by virtue of the
doctrine of merger of interests or any similar principle of Alabama
law;
(2) any amendment or waiver of, or any consent to or departure
from, the Letters of Credit or any of the Financing Documents;
(3) the existence of any claim, set-off, defense or other rights
which the Borrowers may have at any time against any of the Financing
Participants or any other person or entity, whether in connection with
this Agreement, the Letters of Credit, the Bonds or any other Financing
Document, or any unrelated transaction;
21
(4) any statement or any other document presented under the
Letters of Credit proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein proves to be
untrue or inaccurate in any respect whatsoever;
(5) payment by the Bank under the Letters of Credit against
presentation of a draft or certificate which does not comply with the
terms of such Letters of Credit, provided such payment shall not have
constituted gross negligence or willful misconduct by the Bank; and
(6) as to the obligations of the Company arising under the
Revolving Line of Credit Note or out of or relating to payment of the
Letters of Credit, any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, provided the same shall
not have constituted gross negligence or willful misconduct by the
Bank.
No act of commission or omission of any kind at any time on the part of
the Bank in respect of any matter whatsoever, except for the gross negligence or
willful misconduct of the Bank, shall in any way affect or impair any right,
power or benefit of the Bank under this Agreement and, to the extent permitted
by applicable law, no setoff, claim, reduction, diminution of any obligation, or
any defense of any kind or nature which the Borrowers may have against the Bank,
except for the gross negligence or willful misconduct of the Bank, shall be
available against the Bank in any suit or action brought by the Bank to enforce
any right, power or benefit under this Agreement.
SECTION 4.06 SECURITY
All Obligations of the Borrowers hereunder and under the other
Financing Documents shall be secured by the Mortgage. All Line of Credit
Obligations are additionally secured by the Security Agreement. It is the intent
hereof that all Obligations of the Borrowers to the Bank shall be fully cross
defaulted. A default by the Borrowers under any of the Obligations shall be a
default under all of the Obligations and the Bank may exercise any and all
remedies, as applicable, under any or all of the Financing Documents.
ARTICLE 5
CONDITIONS PRECEDENT TO
FUNDING OF CREDIT FACILITIES
SECTION 5.01 CONDITIONS PRECEDENT TO FUNDING OF CREDIT FACILITIES
The obligation of the Bank to issue the Letters of Credit and to make
Advances under the Revolving Line of Credit is subject to the receipt by the
Bank of the following documents, each of which shall be satisfactory to the Bank
in form and substance:
22
(1) Signed copies of each of the Financing Documents.
(2) Copies of all necessary satisfactions and releases to
encumbrances to the Collateral.
(3) A Phase I environmental study acceptable to the Bank on the
Mortgaged Site and, if indicated by any Phase I study, such additional
environmental studies and compliance as shall be acceptable to the
Bank.
(4) An appraisal of the Collateral acceptable to the Bank
indicating real and personal properties (excluding Receivables and
Inventory) securing the Obligations having a current value in an amount
which will support the Letters of Credit based upon an 80%
loan-to-value for real property and an 65% loan-to-value for any
portion of the machinery and equipment not covered by the real estate
appraisal.
(5) A hazard insurance binder or policy on the Project in an
amount of the full replacement cost thereof. The amount of insurance
must at all times equal or exceed the aggregate outstanding Credit
Amount for the Substitute Letter and the Letter of Credit. The
Borrowers shall provide in each instance a mortgagee endorsement to
such insurance naming the Bank as mortgagee.
(6) Certificate of general liability and workmen's compensation
insurance of the Borrowers .
(7) A survey of the real property which will be mortgaged as
Collateral for the Obligations.
(8) A mortgagee title insurance binder from a company acceptable
to the Bank in the aggregate amount of not less than the appraised
value of the real property used as Collateral.
(9) UCC-1 Financing Statements relating to the Mortgage and the
Security Agreement.
(10) Corporate resolutions of each the Borrowers authorizing this
Agreement, the Revolving Line of Credit Note, the Mortgage, the
Security Agreement and all related loan documents.
(11) A legal opinion of Xxx X. Xxxxxxxxxx, P.C., counsel to the
Borrowers, as to the due authorization, issuance and enforceability of
the Financing Documents acceptable to the Bank and its counsel.
23
(12) Such other loan documents as may reasonably be required by
the Bank or its counsel.
(13) A copy of the construction contract for the construction of
the 2002 Improvements and a copy of the building permit therefor.
(14) Such additional legal opinions, certificates, proceedings,
instruments and other documents as the Bank or its counsel may
reasonably request to evidence (i) compliance by the Board and the
Borrowers with legal requirements, (ii) the truth and accuracy, as of
the date of delivery of this Agreement, of the representations of the
Board and the Borrowers contained in the Financing Documents, and (iii)
the due performance or satisfaction by the Board and the Borrowers at
or prior to the date of delivery of this Agreement, of all agreements
then required to be performed and all conditions then required to be
satisfied by them pursuant to the Financing Documents.
SECTION 5.02 ADDITIONAL CONDITIONS FOR DISBURSEMENTS OF 2002 BOND
PROCEEDS
The proceeds of the 2002 Bonds shall be advanced by the 2002 Trustee
only upon receipt by the 2002 Trustee of the written approval of each
disbursement by the Bank and only for (i) the payment of the costs of issuance
of the 2002 Bonds and the closing of the Credit Facilities and (ii) the cost of
the 2002 Improvements as more fully provided in the 2002 Indenture and the Lease
Agreement. At the time of each disbursement request, the Borrowers shall furnish
the Bank invoices and other evidence satisfactory to the Bank that payment is
due for the requested payment.
SECTION 5.03 ADDITIONAL CONDITIONS TO MAKING ADVANCES UNDER THE
REVOLVING LINE OF CREDIT
The obligation of the Bank to make Advances under the Revolving Line of
Credit is subject to the additional following conditions precedent:
(a) At the time of each Advance hereunder, the representations and
warranties set forth in Article 6 shall be true and correct on and as of such
time with the same effect as though such representations and warranties had been
made on and as of such time, except to the extent that such representations and
warranties expressly relate to an earlier date.
(b) On and as of the date of each Advance hereunder, the Borrowers
shall be in compliance with all the terms and provisions set forth herein on
each of their parts to be observed or performed, and no Event of Default, nor
any event that upon notice or lapse of time or both would constitute an Event of
Default, shall have occurred and be continuing.
(c) On and as of the date of each Advance hereunder, the aggregate
principal amount of all Advances under the Revolving Line of Credit Note then
outstanding, plus the amount of the requested Advance shall not exceed the
lesser of $5,000,000 and (i) 80% of the then Eligible Accounts, plus (ii) 50% of
the then Eligible Inventory.
24
(d) The Bank shall have received a Request for an Advance dated not
more than three Business Days before the date on which the Advance is to be
made.
ARTICLE 6
REPRESENTATIONS AND COVENANTS
SECTION 6.01 GENERAL REPRESENTATIONS OF THE BORROWERS
Each of the Borrowers makes the following representations and
warranties as the basis for the undertakings on its part herein contained:
(1) It is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida (with the
exception of KINPAK which is a corporation duly organized, validly
existing and in good standing under the laws of the State of Alabama),
and each is authorized to do business in all jurisdictions in which the
character of its properties or the nature of its business requires such
qualifications or authorization.
(2) It has the corporate power and authority to own its
properties and assets and to carry on its business as now being
conducted and as now proposed to be conducted.
(3) Its financial statements that have been furnished to the Bank
are complete and correct in all material respects and fairly present
its financial condition as of the date or dates indicated and for the
periods involved in accordance with generally accepted accounting
principles applied on a consistent basis. There has been no materially
adverse change in its financial condition or operations since the date
of its most recent financial statements furnished to the Bank.
(4) It has good and marketable title to all its properties and
assets reflected on its most recent balance sheet furnished to the
Bank, except for such properties and assets (valued in the aggregate,
at the time of their disposition, at not in excess of $200,000) as have
been disposed of since the date of such balance sheet as no longer used
or useful in the conduct of its business or as have been disposed of in
the ordinary course of its business. All such properties and assets are
free and clear of liens of any nature, except as disclosed in such
financial statements.
25
(5) It has filed or caused to be filed all federal, state and
local tax returns which are required to be filed by it as of the date
hereof, and has paid or caused to be paid all taxes as shown on such
returns or on any assessments received by it to the extent that such
taxes have become due and payable.
(6) It has not used, and does not intend to use, any part of the
proceeds of the Bonds, and has not incurred any indebtedness to be
reduced, retired, or purchased by it out of such proceeds, for the
purpose of purchasing or carrying any margin stock within the meaning
of Regulation U of the Board of Governors of the Federal Reserve
System, and it does not own and has no intention of acquiring any such
margin stock.
(7) The execution and delivery of the Financing Documents to
which it is a party does not involve any prohibited transaction within
the meaning of the Employee Retirement Income Security Act of 1974, as
amended (ERISA), of the Internal Revenue Code. It has fulfilled its
obligations, if any, under minimum funding standards of ERISA and is in
compliance in all material respects with the applicable provisions of
ERISA.
(8) It has full legal power to consummate the transactions
contemplated by the Financing Documents to which it is a party.
(9) By proper action of its Board of Directors it has duly
authorized the execution and delivery of the Financing Documents to
which it is a party and the consummation of the transactions
contemplated therein.
(10) It has obtained all consents, approvals, authorizations, and
orders of governmental authorities that are required to be obtained by
it as a condition to the execution and delivery of the Financing
Documents to which it is a party.
(11) The execution and delivery by it of the Financing Documents
to which it is a party and the consummation by it of the transactions
contemplated therein do not and will not (i) conflict with, be in
violation of, or constitute (upon notice or lapse of time or both) a
default under its certificate of incorporation or bylaws or any
indenture, mortgage, deed of trust or other contract, agreement or
instrument to which it is a party or is subject, or any resolution,
order, rule, regulation, writ, injunction, decree or judgment of any
governmental authority or court having jurisdiction over it which would
result in a material adverse effect on the business or operations of
the Borrower or (ii) result in or require the creation or imposition of
any lien of any nature upon or with respect to any of its properties
now owned or hereafter acquired, except as contemplated by the
Financing Documents.
26
(12) The Financing Documents to which it is a party constitute
legal, valid, and binding obligations of the Borrower and are
enforceable against it in accordance with the terms of such
instruments, except as enforcement thereof may be limited by (i)
bankruptcy, insolvency, or other similar laws affecting the enforcement
of creditors' rights and (ii) general principles of equity, regardless
of whether such enforceability is considered in a proceeding at equity
or at law.
(13) There is no action, suit, proceeding, inquiry or
investigation pending before any court or governmental authority, or,
to the best of the Borrower's knowledge, threatened against it or
affecting it or its properties, that (i) involves the consummation of
the transactions contemplated by, or the validity or enforceability of,
any of the Financing Documents or (ii) could have a materially adverse
impact upon its financial condition or operations.
(14) Neither the Borrower nor any of its Collateral is in
violation of any easements, covenants or restrictions affecting any the
Collateral, the violation of which could have a material adverse effect
on the business or operations of the Borrower.
(15) It has obtained all necessary licenses, franchises, permits,
certificates of need and other authorizations necessary for the
operation of the Collateral under applicable laws, ordinances, and
regulations, except where the failure to do so would not have a
material adverse affect on the business or operations of the Borrower.
(16) Neither the Collateral nor the Borrower is in material
violation of, or subject to, any existing, pending, or to the
Borrower's knowledge, threatened investigation or inquiry by any
governmental authority or any remedial obligations under any applicable
laws, rules or regulations pertaining to health or the environment,
including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended ("CERCLA")
or the Resource Conservation and Recovery Act of 1976, as amended
("RCRA"), and there are no facts, conditions or circumstances known to
it which are likely to result in any such investigation or inquiry if
such facts, conditions and circumstances, if any, were fully disclosed
to the applicable governmental authority, and the Borrower will
promptly notify the Bank if the Borrower becomes aware of any such
facts, conditions or circumstances or any such investigation or
inquiry; the Borrower has obtained all material permits, licenses, or
similar authorizations to construct, occupy, operate or use any
buildings, improvements, fixtures or equipment in connection with the
Collateral constructed or to be constructed by reason of any
environmental laws, rules or regulations; no oil, toxic or hazardous
substances, solid wastes, irritants, contaminants, or infectious or
medical wastes have been disposed of or released at the site of the
Collateral, except in the ordinary course of business and in compliance
27
with all applicable laws and regulations, and the Borrower agree that
it will not in its use of such property dispose of or release oil,
toxic or hazardous substances, solid wastes, irritants, contaminants,
or infectious or medical wastes on such property except in the ordinary
course of business and in compliance with all applicable laws and
regulations, (the terms "hazardous substance" and "release" shall have
the meanings specified in CERCLA, and the terms "solid waste" and
"disposal," "dispose" or "disposed" shall have the meanings specified
in RCRA, except that if such acts are amended to broaden the meanings
thereof, the broader meaning shall apply herein).
(17) No proceedings are pending, or, to the best of the
Borrower's knowledge, threatened, to acquire any power of condemnation
or eminent domain, with respect to the Collateral or any interest
therein, or to enjoin or similarly prevent or restrict the operation of
the Collateral in any manner.
(18) The Borrowers' chief executive offices are located at 0000
X.X. 00xx Xxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000.
(19) It has no claim, defense or right of setoff against any of
the Obligations.
(20) Its fiscal year ends December 31.
SECTION 6.02 CORPORATE EXISTENCE
The Borrowers shall do or cause to be done all things necessary to keep
their corporate existences in full force and effect and shall not merge with any
other corporation or other entity or dissolve or transfer all or substantially
all their assets to any other person without the prior written consent of the
Bank. The Borrowers will not allow any other corporation to merge into them
without the prior written consent of the Bank.
SECTION 6.03 ACCOUNTING RECORDS
The Borrowers will maintain proper books of record and account, in
which full and correct entries regarding their business and affairs will be made
in accordance with generally accepted accounting principles consistently
applied.
SECTION 6.04 REPORTS TO BANK
During the term of this Agreement, Ocean covenants that, unless waived
by the Bank it will provide to the Bank the following:
28
(1) Within 30 days after the end of each calendar month an
unaudited income and expense statement and balance sheet of Ocean and
its consolidated Subsidiaries certified by the chief financial officer
of Ocean;
(2) Within 120 days after the end of each fiscal year,
consolidated and consolidating statements of income and retained
earnings of Ocean and its consolidated Subsidiaries for such fiscal
year, and a balance sheet of Ocean and its consolidated Subsidiaries as
of the end of such fiscal year, audited by an independent certified
public accountant selected by Ocean and acceptable to the Bank;
(3) Within 30 days after the filing thereof, a copy of each of
the Borrowers' Federal income tax returns.
(4) Within a reasonable period of time, after request, such other
information or documents as the Bank may reasonably request.
SECTION 6.05 NOTICE OF DEFAULT
Promptly after the Borrowers or any officer of the Borrowers become
aware of any material default (as defined below in this Section), the Borrowers
will deliver to the Bank a written notice specifying the nature and period of
existence thereof and the action being taken and proposed to be taken with
respect thereto. For purposes of this Section, a "material default" means the
existence of an event of default under any of the Financing Documents or under
any instrument evidencing or securing any other indebtedness or contingent
liability of the Borrowers or any Subsidiaries of the Borrowers, or the
occurrence and continuation of any event which, with notice or lapse of time or
both, would constitute an event of default under any of the Financing Documents
or under any instrument evidencing or securing any other indebtedness or
contingent liability of the Borrowers or any Subsidiaries of the Borrowers.
SECTION 6.06 LITIGATION NOTICE
Promptly after the Borrowers or any officer of the Borrowers become
aware of the existence of any material litigation (as defined below in this
Section), the Borrowers will deliver to the Bank a written notice specifying the
nature and period of existence thereof and the action being taken and proposed
to be taken with respect thereto. For purposes of this Section, "material
litigation" means any action, suit, proceeding, inquiry or investigation pending
before any court or governmental authority, or threatened against the Borrowers
or affecting the Borrowers or any of their Subsidiaries or the Borrowers' or any
Subsidiary's properties, that (i) involves the consummation of the transactions
contemplated by, or the validity or enforceability of, any of the Financing
Documents or (ii) could have a materially adverse impact upon the financial
condition or operations of the Borrowers or any of their Subsidiaries.
29
SECTION 6.07 COVENANTS REGARDING FINANCIAL CONDITION
(a) The Borrowers hereby covenant and agree
(1) Adjusted Leverage Ratio. Borrowers on a consolidated basis
will maintain at all times an Adjusted Leverage Ratio of no more than
2.5 to 1.0. As used herein "Adjusted Leverage Ratio" means the ratio of
Liabilities plus Guaranteed Obligations, less any Subordinated Debt,
divided by Tangible Net Worth.
(2) Fixed Charge Coverage Ratio. Borrowers on a consolidated
basis will maintain at all times a Fixed Charge Coverage Ratio of not
less than 1.25 to 1.00 As used herein "Fixed Charge Coverage Ratio"
means the ratio of net income plus depreciation, Interest Expense and
rent and lease expense to current maturities of long-term debt plus
Interest Expense and rent and lease expense.
(3) Current Ratio. Borrowers on a consolidated basis will
maintain at all times a Current Ratio of no less than 1.5 to 1.0. As
used herein "Current Ratio" means the ratio of current assets to
current liabilities.
(4) Disposition of Assets. Borrowers will not, other than in the
ordinary course of business, sell, lease, transfer or otherwise dispose
of any substantial part of their properties and assets; provided,
however, that Borrowers may sell, lease, transfer or otherwise dispose
of any of their properties or assets not used in the manufacturing
operations at the Project if as a result of such sale, lease, transfer
or disposal, an event of default under any of the Financing Documents,
or any circumstance that with notice or lapse of time or both would
constitute an event of default under any of the Financing Documents,
does not exist.
(5) Sale or Encumbrance of Receivables. Borrowers will not sell,
assign, discount, pledge or otherwise encumber any of their Receivables
or any promissory note held by them, with or without recourse, other
than the discount of notes in the ordinary course of business for
collection.
(6) Liens or Security Interests. Borrowers will not grant any
lien on or security interest in, or otherwise encumber, any of the
Collateral, and, except for liens for taxes not yet due and payable or
which are being actively contested in good faith by appropriate
proceedings and for which adequate reserves are being maintained by
Borrowers and those liens disclosed to the Bank by Borrowers in writing
prior to the execution of this Agreement, Borrowers shall not permit to
exist any lien, security interest or other encumbrance on any of the
Collateral.
30
(b) Except as otherwise expressly provided in this Section, (i)
Borrowers shall cause each of their Subsidiaries to observe and perform each of
the covenants and agreements of this Section to be observed and performed by
Borrowers , and (ii) all computations required in connection with the financial
covenants contained in this Section shall be made for Borrowers and their
Subsidiaries on a combined or consolidated basis, after elimination of
intercompany items. Compliance with financial covenant ratios shall be in
accordance with generally accepted accounting principles. Compliance with the
ratios will be based on information reflected on the Borrowers' year-end
financial statements commencing with fiscal year end 2002.
SECTION 6.08 AMENDMENTS TO FINANCING DOCUMENTS
Unless the Bank shall otherwise consent in writing (which consent may
be granted or refused in the Bank's reasonable discretion), the Borrowers agree
not to enter into or consent to or effectuate any amendment to or assignment of
any of the Financing Documents.
SECTION 6.09 INCORPORATION OF COVENANTS BY REFERENCE
The Borrowers agree that they will perform and comply with each and
every covenant and agreement required to be performed or observed by them in the
Financing Documents, which provisions, as well as related defined terms
contained therein, are hereby incorporated by reference herein with the same
effect as if each and every such provision were set forth herein in its
entirety. To the extent that any such incorporated provision permits the Trustee
or the holders of one or more Bonds or any other person to waive compliance with
such provision or requires that a document, opinion or other instrument or any
event or condition be acceptable or satisfactory to the Trustee or the holders
of one or more Bonds or any other person, for purposes of this Agreement, such
provision shall be complied with only if it is waived by the Bank and such
document, opinion or other instrument and such event or condition shall be
acceptable or satisfactory only if it is acceptable and satisfactory to the
Bank. No amendment to such covenants and agreements or defined terms made
pursuant to any of the Financing Documents shall be effective to amend such
covenants and agreements and defined terms as incorporated by reference herein
without the consent of the Bank.
SECTION 6.10 PAYMENT OF TAXES
The Borrowers will pay or cause to be paid as they become due and
payable, prior to penalty or the expiration of applicable grace periods, all
taxes, assessments and other governmental charges lawfully levied or assessed or
imposed upon them or their properties or any part thereof or upon any income
therefrom; provided, that the Borrowers shall not be required to pay and
discharge or cause to be paid and discharged any such tax, assessment or
governmental charge to the extent that the amount, applicability or validity
thereof shall currently be contested in good faith by appropriate proceedings,
the Borrowers promptly notify the Bank of such contest and the Borrowers shall
have established and maintain with the Bank security satisfactory to the Bank,
or established reserves with respect thereto in accordance with generally
accepted accounting principles, against any loss, damage or injury that may
result if the Borrowers are unsuccessful in such contest.
31
SECTION 6.11 MAINTENANCE OF PROPERTIES
The Borrowers will cause all their properties necessary or useful in
the conduct of their business to be maintained and kept in good condition,
repair and working order and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals, replacements, alterations,
betterments and improvements thereof, all as in the judgment of the Borrowers
may be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 6.12 OPERATION OF COLLATERAL
The Borrowers will conduct the operation of the Collateral at all times
in a prudent manner in compliance with applicable laws and regulations relating
thereto and will maintain in effect all material licenses, permits, and
certificates necessary for the use and operation of the Collateral.
SECTION 6.13 OTHER AGREEMENTS
The Borrowers shall not enter into any agreement containing any
provision which would be violated or breached by the performance of their
obligations hereunder or under the Financing Documents or under any instrument
or document delivered or to be delivered by them hereunder or in connection
therewith.
SECTION 6.14 ENCUMBRANCES
The Borrowers shall not create or suffer to exist any assignment,
mortgage, pledge, security interest, conditional sale or other title retention
agreement, lien, charge or encumbrance upon any of the Collateral, except as
permitted in the Mortgage and the Security Agreement.
SECTION 6.15 MAINTENANCE OF INSURANCE
The Borrowers will at all times maintain and keep in force insurance of
the types and in the amounts customarily carried in lines of business similar to
the Borrowers' and such other insurance as the Bank may reasonably require,
including, without limitation, fire, public liability, casualty, property
damage, flood damage, and worker's compensation insurance, which insurance shall
be carried with the Borrowers' current insurers and in current amounts or such
other company or companies and in such other amounts as are satisfactory to the
Bank; provided, however, all property insurance on the Project shall at all
times be in amounts equal to the full insurable value of the property insured
and the insurer shall provide to the Bank a mortgagee endorsement with respect
thereto. The Borrowers shall deliver to the Bank from time to time at the Bank's
request copies of all such insurance policies and certificates of insurance and
schedules setting forth all insurance then in effect.
32
SECTION 6.16 COMPLIANCE WITH ENVIRONMENTAL LAWS
The Borrowers will at all times maintain all of their real property and
business operations in compliance with all applicable present and future
federal, state and local environmental laws, regulations and court or
administrative orders relating to pollution control and environmental
contamination unless such failure to comply would not have a material adverse
effect on the Borrowers; and immediately notify the Bank of any knowledge,
notice, actions, lien or other similar action alleging either the location of
any hazardous substances or the violation of any environmental laws with respect
to such real property.
SECTION 6.17 DAMAGE AND DESTRUCTION
(a) If before the Obligations are paid in full, all or any portion of
the Collateral is damaged or destroyed by fire, explosion or other hazard, and
if the Borrowers , within ten days after the event causing such damage or
destruction, advise the Bank in writing that in the Borrowers' opinion the
Collateral can be restored within six months after such event to substantially
the same operating utility that it had prior to such event, then at the
Borrowers' request the net proceeds of insurance resulting from such damage or
destruction shall be given to the Borrowers to be used, to the extent necessary,
for the purpose of reconstructing any damaged portion of the Collateral or
remedying a loss thereof, provided, however, that if the damage or loss is of an
amount in excess of $250,000 such proceeds shall be held by the Bank prior to
reconstruction or reinvestment in the Collateral and paid over to the Borrowers
only upon delivery of invoices or other appropriate documentation. Any net
proceeds of insurance that are not paid to the Borrowers pursuant to the
preceding sentence shall be applied by the Bank toward prepayment of the
Obligations, in any order, whether or not then due.
(b) If before all Obligations are paid in full, all or any portion of
the Collateral is damaged or destroyed by fire, explosion or other hazard, and
if the Borrowers fail to advise the Bank, within ten days after the event
causing such damage or destruction, that in the Borrowers' opinion the
Collateral can be restored within six months after the event causing such damage
or destruction to substantially the same operating utility it had prior to such
event, then at the option of the Bank, the net proceeds of insurance resulting
from such damage or destruction shall be paid to the Bank and applied toward
prepayment of the Obligations, in any order, whether or not then due.
SECTION 6.18 CONDEMNATION
If before all Obligations are paid in full, title to, or the temporary
use of, the Collateral or any portion thereof is taken under the exercise of the
power of eminent domain by any governmental body or by any person, firm or
corporation acting under governmental authority, the proceeds received by the
Borrowers and/or the Bank from any award in such eminent domain proceedings
shall be applied and certain related actions shall be taken as follows:
33
(1) if in the Bank's reasonable opinion exercised in good faith
such taking does not significantly impair the operating utility of the
Collateral, then the proceeds of such award shall be paid to the
Borrowers;
(2) if in the Bank's reasonable opinion exercised in good faith
such taking significantly impairs the operating utility of the
Collateral and
(A) in the Borrowers' opinion, repairs, restorations,
modifications, relocations, rearrangements and acquisitions of
substitute facilities and improvements can be made within three
months after such taking to the extent necessary to restore the
Collateral to substantially the same operating utility that it
had prior to such taking and the Borrowers agree to make such
restoration and pay all of the costs thereof in excess of the
proceeds of such award, then the proceeds of such award shall be
paid to the Borrowers; or
(B) in the Borrowers' opinion, the Collateral cannot
within three months after such taking be restored to
substantially the same operating utility that it had prior to
such taking, or if the Borrowers do not agree to undertake such
restoration and pay the costs thereof in excess of the proceeds
of such award, then the proceeds of such award shall be paid to
the Bank and applied toward prepayment of the Obligations, in any
order, whether or not then due.
SECTION 6.19 REDEMPTION OF BONDS
KINPAK agrees to cause the Board to redeem outstanding Bonds in
accordance with the terms of the Indentures and the Bonds.
SECTION 6.20 BANKING RELATIONSHIP
Borrowers shall maintain a banking relationship with the Bank for the
purpose of the deposit of all Advances and payment of all reimbursement
obligations under the Credit Agreement.
SECTION 6.21 ALABAMA RIVER DOCK FACILITY
KINPAK currently leases certain dock facilities located on the Alabama
River from the State of Alabama, but as of the date hereof is not using such
facilities in its business operations. KINPAK agrees that if at any time in the
future during which any of the Obligations are outstanding KINPAK again uses
such dock facilities as a part of its business operations, KINPAK will grant to
the Bank a collateral assignment of and mortgage on its leasehold interest in
such dock facilities.
34
ARTICLE 7
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.01 EVENTS OF DEFAULT
Any one or more of the following shall constitute an event of default
(an "Event of Default") under this Agreement (whatever the reason for such event
and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body):
(1) (i) default in any payment required under Articles 2 as and
when the same become due and payable, or (ii) default in any payment
required under Article 3, as and when the same shall become due and
payable and the expiration of 10 days thereafter; or
(2) default in the performance, or breach, of any covenant,
condition or agreement on the part of the Borrowers contained in
Sections 6.02, 6.07 or 6.08 hereof; or
(3) default in the performance, or breach, of any covenant or
warranty of the Borrowers in this Agreement (other than a covenant or
warranty, a default in the performance or breach of which is elsewhere
in this Section specifically dealt with), and the continuance of such
default or breach for a period of 30 days after there has been given,
by registered or certified mail, to the Borrowers by the Bank a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a notice of default hereunder;
or
(4) the filing of a petition in bankruptcy (or the other
commencement of a bankruptcy or similar proceeding) by any of the
Borrowers under any applicable bankruptcy, insolvency, reorganization,
or similar law, now or hereafter in effect; or
(5) the filing of a petition in bankruptcy (or other commencement
of a bankruptcy or similar proceeding) against any of the Borrowers
under any applicable bankruptcy, insolvency, reorganization, or similar
law, now or hereafter in effect, and such petition shall not be
discharged or dismissed within 90 days after the date on which such
petition was filed; or
35
(6) any Borrower (a) applies for or consents to the appointment
of a receiver for all or a substantial part of its property or assets,
(b) admits in writing its inability to pay its debts as such debts
become due or (c) makes a general assignment for the benefit of its
creditors; or
(7) any representation or warranty made by the Borrowers herein
or in any document, instrument or certificate furnished to the Bank in
connection with the issuance of the Letters of Credit or the
consummation of the transactions contemplated by the Financing
Documents shall at any time prove to have been false or incorrect in
any material respect as of the time made; or
(8) the occurrence of an event of default, as therein defined,
under any other Financing Document and the expiration of the applicable
grace period, if any, specified therein; or
(9) the rendering against the Borrowers of a final judgment,
decree or order for the payment of money in excess of $250,000 and the
continuance of such judgment, decree or order unsatisfied and in effect
for any period of 45 consecutive days without a stay of execution.
SECTION 7.02 REMEDIES
(a) Upon the occurrence of any Event of Default, the Bank shall have
the absolute right and at its option and election and in its sole discretion to
exercise alternatively or cumulatively any or all of the remedies set forth in
this Section 7.02.
(b) Without limitation upon the provisions of paragraph (a) above, if
any Event of Default shall have occurred and be continuing, the Bank may
exercise any of the following remedies:
(1) give written notice of an Event of Default under this
Agreement to the 2002 Trustee directing the 2002 Trustee to effect a
mandatory tender of the 2002 Bonds as provided in Section 302 of the
0000 Xxxxxxxxx; or
(2) give written notice of an Event of Default under this
Agreement to the 1997 Trustee directing the 1997 Trustee to "accelerate
the 1997 Bonds" pursuant to Section 601(f) of the 1997 Indenture,
whereupon an event of default shall occur under the 1997 Indenture, and
the 1997 Trustee shall declare the 1997 Bonds immediately due and
payable and shall make a draw under the Substitute Letter to pay the
principal of the 1997 Bonds and the interest thereon to the date of
such declaration; or
(3) give written notice of an Event of Default under this
Agreement to the 2002 Trustee directing the 2002 Trustee to "accelerate
the 0000 Xxxxx" pursuant to Section 602 of the 2002 Indenture,
36
whereupon an event of default shall occur under the 2002 Indenture, and
the 2002 Trustee shall declare the 2002 Bonds immediately due and
payable and shall make a draw under the Letter of Credit to pay the
principal of the 2002 Bonds and the interest thereon to the date of
such declaration; or
(4) upon notice to the Borrowers, declare all amounts, if any,
not otherwise immediately due under this Agreement or the Revolving
Line of Credit Note to be, and all such amounts shall thereupon become,
due and payable to the Bank, without presentment, demand, protest, or
other notice of any kind, all of which are expressly waived, anything
in this Agreement, the Revolving Line of Credit Note, the Mortgage or
the Security Agreement to the contrary notwithstanding; or
(5) exercise its banker's lien or right of set-off; or
(6) proceed to protect its rights by suit in equity, action at
law or other appropriate proceedings, whether for the specific
performance of any covenant or agreement of the Borrowers herein
contained or in aid of the exercise of any power or remedy granted to
the Bank under any Financing Document; or
(7) exercise all of its rights, remedies and power under the
Mortgage, the Security Agreement and all other Collateral.
SECTION 7.03 ACCELERATION OF REIMBURSEMENT
If an Event of Default exists under this Agreement and the maturity of
the Bonds has not been accelerated pursuant to Section 601(f) of the 1997
Indenture or Section 602 of the 2002 Indenture, the Borrowers agree to pay to
the Bank, promptly upon demand by the Bank therefor, an amount equal to the
maximum amount available to be drawn under the Letters of Credit. All amounts so
paid to the Bank (or recovered by the Bank by legal or other action in the event
the Borrowers shall fail or refuse to make payment as required by this Section)
shall be held by the Bank in reserve as security for reimbursement for any draws
the Bank may be required to pay under the Letters of Credit with respect to
which an acceleration has not occurred. The Bank may maintain any reserve held
under the terms of this Agreement in any manner the Bank may see fit, and the
Bank shall invest the same in such investment or investments (including but not
limited to certificates of deposit issued by the Bank) as the Bank may choose,
subject to any applicable arbitrage restriction or regulation. The Bank shall
not be required to pay, or to account to the Borrowers or anyone else for, any
interest or other earnings on any reserve at any time held by the Bank under
this Agreement, except that any income or profits from any investment of such
reserve made by the Bank shall become a part of such reserve. At such time as
all of the Obligations have been paid in full and the Letters of Credit have
been terminated, all amounts remaining in such reserve (if any) shall be paid to
the Borrowers.
37
SECTION 7.04 NO REMEDY EXCLUSIVE
No remedy herein conferred upon or reserved to the Bank is intended to
be exclusive of any other available remedy or remedies, but each and every such
remedy shall be cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law or in equity or by
statute. No delay or omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a
waiver thereof but any such right or power may be exercised from time to time
and as often as may be deemed expedient.
SECTION 7.05 AGREEMENT TO PAY ATTORNEYS' FEES
If the Borrowers should default under any of the provisions of this
Agreement and the Bank should employ attorneys or incur other expenses for the
collection of any payments due hereunder or the enforcement of performance or
observance of any agreement or covenant on the part of the Borrowers herein
contained, the Borrowers will, within 15 days of the Borrowers' receipt of
demand therefor, pay to the Bank the reasonable fees of such attorneys and such
other reasonable expenses so incurred.
SECTION 7.06 NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER
If any agreement contained in this Agreement should be breached by the
Borrowers and thereafter waived by the Bank, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
SECTION 7.07 REMEDIES SUBJECT TO APPLICABLE LAW
All rights, remedies and powers provided by this Article may be
exercised only to the extent the exercise thereof does not violate any
applicable provision of law in the premises, and all the provisions of this
Article are intended to be subject to all applicable mandatory provisions of law
which may be controlling in the premises and to be limited to the extent
necessary so that they will not render this Agreement invalid or unenforceable.
SECTION 7.08 WAIVER BY BORROWERS
The Borrowers hereby waive, as to the enforceability of this Agreement,
except as set forth herein or in any of the other Financing Documents,
presentation and demand for payment (or protest of nonpayment) of the
Obligations or, until the Obligations have been fully paid, any rights of
subrogation they may have against others by reason of performance under this
Agreement.
38
SECTION 7.09 SET OFF
In addition to all Liens upon, and rights of set-off against, any
moneys, securities or other property of the Borrowers given to the Bank by law,
the Bank shall have a Lien upon and a right of set-off against all moneys,
securities and other property of the Borrowers now or hereafter in the
possession of, or on deposit with, the Bank, whether held in a general or
special account or deposit, for safekeeping or otherwise, to secure the
obligations of the Borrowers under this Agreement; and every such Lien and right
of set-off may be exercised without demand upon or notice to the Borrowers.
ARTICLE 8
MISCELLANEOUS
SECTION 8.01 NO WAIVER
No failure or delay on the part of the Bank in exercising any right,
power or remedy hereunder shall be construed as a waiver of such; nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof. The remedies herein provided are cumulative and not
exclusive of any other remedies provided by law.
SECTION 8.02 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties
relating to the subject matter hereof and supersedes all oral statements and
prior writings and agreements with respect thereto.
SECTION 8.03 REVIEW BY BORROWERS
The Borrowers expressly acknowledge that they have had an adequate
opportunity to review this Agreement and all documents related thereto, that
they are under no compulsion to execute this Agreement or any instruments
contemplated herein, that they have not in any way relied upon the advice or
recommendations of the Bank, its officers, shareholders, directors, employees,
or attorneys, except as set forth in this Agreement.
SECTION 8.04 WAIVER OF TRIAL BY JURY
TO THE EXTENT LEGALLY ENFORCEABLE, THE BANK AND THE BORROWERS
IRREVOCABLY WAIVE ALL RIGHTS TO A TRIAL BY JURY IN ANY COURT IN ANY ACTION: (a)
THE BANK BRINGS TO COLLECT AMOUNTS OWED THE BANK UNDER THIS AGREEMENT AND (b)
ALLEGING THAT (i) THE BANK HAS BREACHED THIS AGREEMENT, OR ANY AGREEMENT
RELATING TO THIS AGREEMENT, (ii) THE BANK HAS BREACHED ANY OTHER AGREEMENT,
EXPRESS OR IMPLIED, (iii) THE BANK OR ANY OF ITS OFFICERS, EMPLOYEES OR AGENTS
HAVE ACTED WRONGFULLY, NEGLIGENTLY OR OTHERWISE TORTIOUSLY WITH RESPECT TO THE
BORROWERS.
39
To the extent that any court of competent jurisdiction determines that
such jury waiver is inapplicable or unenforceable with respect to any claim or
dispute, such claim or dispute shall be submitted to and settled by final and
binding arbitration under the Federal Arbitration Act or other applicable law
pursuant to the Commercial Arbitration Rules of the American Arbitration
Association. Such proceeding shall be held before a single arbitrator who is an
active attorney or retired judge. The party against which the decision is
rendered shall pay the costs and reasonable attorneys' fees of the prevailing
party for any arbitration proceeding.
SECTION 8.05 NOTICES
(a) Any request, demand, authorization, direction, notice, consent, or
other document provided or permitted by this Agreement to be made upon, given or
furnished to, or filed with, the Borrowers or the Bank shall be sufficient for
every purpose hereunder if in writing and (except as otherwise provided in this
Agreement) either (i) delivered personally to the party or, if such party is not
an individual, to an officer, partner, member or other legal representative of
the party to whom the same is directed, or (ii) mailed by registered or
certified mail, postage prepaid and addressed as follows:
If to the Borrowers:
Hand delivery and mailing address:
c/o Ocean Bio-Chem, Inc.
0000 X.X. 00xx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
If to the Bank:
Hand delivery address:
Regions Bank
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxx
Mailing address:
Regions Xxxx
Xxxx Xxxxxx Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxx
40
Any of such parties may specify a different address for the receipt of such
documents by mail by giving notice of the change in address to the other party
as provided in this Section.
(b) Any such notice or other document shall be deemed to be received
(i) as of the date delivered, if delivered personally in accordance with
subsection (a) of this Section, or (ii) as of three days after the date
deposited in the mail, if mailed in accordance with subsection (a) of this
Section.
SECTION 8.06 INDEMNIFICATION
(a) The Borrowers agree to defend, indemnify, and hold harmless the
Bank, its directors, officers, employees, and agents (the "Indemnitees") from
and against any and all claims, demands, judgments, damages, actions, causes of
action, injuries, orders, penalties, reasonable costs and expenses, (including
without limitation, costs of court and reasonable attorney's fees) of any kind
whatsoever in connection with the execution and delivery or transfer of or
payment or failure to pay under the Letters of Credit; provided, however, said
indemnities shall not apply to any claims, damages, lawsuits, liabilities,
costs, or expenses to the extent, but only to the extent, caused by (i) the
willful misconduct or negligence of the Bank in determining whether a draft or
certificate presented under the Letters of Credit complied with the terms of the
Letters of Credit; or (ii) the Bank's negligent or willful failure to pay under
the Letters of Credit after presentation to it by the Trustee of a draft and
certificate strictly complying with the terms and conditions of the Letters of
Credit.
(b) The Borrowers shall indemnify and hold the Bank harmless from and
against any fines, charges, expenses, fees, attorney fees and costs incurred by
the Bank in the event the Borrowers or the Collateral (whether or not due to any
fault of the Borrowers) is hereafter determined to be in violation of any
environmental laws, rules or regulations applicable thereto, including, without
limitation, those described in Section 6.01(16) of this Agreement, but only with
respect to such violations that occur or exist prior to foreclosure of the
Mortgage or transfer of deed in lieu of foreclosure, and this indemnity shall
survive any foreclosure of the Mortgage or deed in lieu of foreclosure and
repayment of the Obligations.
SECTION 8.07 LIABILITY OF THE BANK
For the exclusive benefit of the Bank and as between the Bank and the
Borrowers only, the Borrowers assume all risks of, but shall not be liable or
responsible to the Bank or any other person or entity for damages arising out
of, the acts or omissions of the Trustee and any transferee of the Letters of
Credit with respect to the Trustee's or such transferee's use of the Letters of
Credit. Neither the Bank nor any of its officers or directors shall be liable or
responsible for: (i) the use which may be made of the Letters of Credit or for
any acts or omissions of the Trustee and any such transferee in connection
therewith; (ii) the validity, sufficiency or genuineness of documents, or of any
endorsement(s) thereon, even if such documents should in fact prove to be in any
41
or all respects invalid, insufficient, fraudulent or forged; (iii) payment by
the Bank under the Letters of Credit against presentment of documents which do
not strictly comply with the terms of the Letters of Credit, including but not
limited to, failure of any documents to bear any reference or adequate reference
to the Letters of Credit; or (iv) any other circumstances whatsoever in making
or failing to make payment under the Letters of Credit, except only that the
Borrowers shall have a claim against the Bank, and the Bank shall be liable to
the Borrowers, to the extent, but only to the extent, of any damages suffered by
the Borrowers which were caused by (A) the Bank's willful misconduct or gross
negligence in determining whether documents presented under the Letters of
Credit comply with the terms of the Letters of Credit or (B) the Bank's willful
or negligent failure to pay under the Letters of Credit after the presentation
to it by the Trustee of a draft and certificate strictly complying with the
terms and conditions of the Letters of Credit. In furtherance and not in
limitation of the foregoing, the Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
SECTION 8.08 CONTINUING OBLIGATION
This Credit Agreement is a continuing obligation and shall (i) be
binding upon the Borrowers and the Bank, their successors and assigns, and (ii)
inure to the benefit of and be enforceable by the Borrowers and the Bank and
their successors and assigns; provided, that the Borrowers may not assign all or
any part of this Credit Agreement without the prior written consent of the Bank.
SECTION 8.09 PARTICIPATION
The Borrowers understand that the Bank may from time to time enter into
a participation agreement or participation agreements with one or more
participants pursuant to which each such participant shall be given a
participation in the Obligations; provided, however, that (a) the Bank shall
remain solely responsible for the performance of its obligations hereunder, the
Bank shall continue to deal with the Borrowers in all matters connected
herewith, and the Borrowers shall continue to deal solely and directly with the
Bank in all matters connected herewith, and (b) the entering into such
participation agreements shall not result in the imposition of additional costs
on the Borrowers Except as otherwise permitted in this Section 8.09, the Bank
will not assign any of its rights or delegate any of its duties or
responsibilities with respect to the Obligations without the prior written
consent of the Borrowers.
SECTION 8.10 GOVERNING LAW
This Agreement, all other Financing Documents and the Letters of Credit
shall be governed by and construed in accordance with the laws of the State of
Alabama.
42
SECTION 8.11 COSTS, EXPENSES AND TAXES
The Borrowers agree to pay at the time of the execution hereof (i) the
reasonable costs and expenses in connection with the preparation, execution, and
delivery of this Agreement and any other documents which may be delivered in
connection with this Agreement, including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel for the Bank with respect thereto,
and (ii) after the occurrence of an Event of Default, or the occurrence of an
event which the Bank reasonably believes may lead to an Event of Default, the
reasonable fees and out-of-pocket expenses of counsel for the Bank with respect
to advising the Bank as to its rights and responsibilities under this Agreement.
43
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
executed and delivered by their duly authorized officers.
OCEAN BIO-CHEM, INC.
(SEAL)
By: /s/ Xxxxx Xxxxxx
------------------------
Its President
------------------------
ATTEST:
/s/ Xx Xxxxxx
-------------------------------
Its Asst. Secretary
---------------------------
STAR-BRITE DISTRIBUTING, INC.
(SEAL)
By: /s/ Xxxxx Xxxxxx
------------------------
Its President
------------------------
ATTEST:
/s/ Xx Xxxxxx
-------------------------------
Its Asst. Secretary
---------------------------
STAR BRITE AUTOMOTIVE, INC.
(SEAL)
By: /s/ Xxxxx Xxxxxx
------------------------
Its President
------------------------
ATTEST:
/s/ Xx Xxxxxx
-------------------------------
Its Asst. Secretary
---------------------------
STAR BRITE DISTRIBUTING (CANADA), INC.
(SEAL)
By: /s/ Xxxxx Xxxxxx
------------------------
Its President
------------------------
ATTEST:
/s/ Xx Xxxxxx
-------------------------------
Its Asst. Secretary
---------------------------
44
KINPAK INC.
(SEAL)
By: /s/ Xxxxx Xxxxxx
------------------------
Its President
------------------------
ATTEST:
/s/ Xx Xxxxxx
-------------------------------
Its Asst. Secretary
---------------------------
(BORROWERS)
45
REGIONS BANK
By: /s/ Xxxxxxx X. Xxxxx
-----------------------
Its Vice President
-----------------------
(Bank)
46
EXHIBIT A
TO
CREDIT AGREEMENT
BORROWING BASE CERTIFICATE
Accounts Receivable $
------------
Less Those More Than 90 Days ($ )
------------
Accounts Receivable Not More
Than 90 Days $
------------
Less payments, Adjustments, etc.
on Eligible Accounts ($ )
------------
Eligible Accounts $
------------
80% Advance Rate x .80
------------
Accounts Receivable
Borrowing Base $
-----------
Eligible Inventory $
------------
50% Advance Rate x .50
------------
Inventory Borrowing Base $
-----------
Total Borrowing Base $ *
-----------
Less Outstanding Balance
on Revolving Line of Credit ($ )
-----------
Available to Draw $
----------
* Shall not exceed $5,000,000
I certify the above information is true and correct and accurately
reflects the books and records of ___________________________. as of this the
______ day of ___________________, _____.
---------------------------
Name:
---------------------
Title:
--------------------
EXHIBIT B
TO
CREDIT AGREEMENT
Equipment
---------
EXHIBIT C
TO
CREDIT AGREEMENT
Real Property Description
-------------------------
Lot 3-3A-1, according to the Map of a Replat of Lot 3-3A, Xxxxxx
Industrial Park, which said Replat appears of record in Plat Book 29 at
Page 150 in the Office of the Judge of Probate of Xxxxxxxxxx County,
Alabama, being a Replat of Xxx 0-0 xx Xxxxxx Xxxxxxxxxx Xxxx Xxxx 3 and
Lot 3-4B of the Replat of Xxx 0-0 xx Xxxxxx Xxxxxxxxxx Xxxx Xxxx 3,
lying in Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, and Xxxxxxx 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 00 Xxxx, Xxxxxxxxxx Xxxxxx, Xxxxxxx.
EXHIBIT D
TO
CREDIT AGREEMENT
(2002 Letter of Credit)
EXHIBIT E
TO
CREDIT AGREEMENT
(Mortgage, Assignment of Leases and Security Agreement)
EXHIBIT F
TO
CREDIT AGREEMENT
(Request for a Revolving Line of Credit Advance)
EXHIBIT G
TO
CREDIT AGREEMENT
(Revolving Line of Credit Note)
EXHIBIT H
TO
CREDIT AGREEMENT
(Security Agreement)
EXHIBIT I
TO
CREDIT AGREEMENT
(Substitute Letter of Credit)
EXHIBIT J
TO
CREDIT AGREEMENT
EXTENSION AGREEMENT
This Extension Agreement (the "Extension Agreement") made as of the
_____ day of _________________, 20____ between Regions Bank, an Alabama state
bank with a principal office located at Montgomery, Alabama (the "Bank") and
Ocean Bio-Chem, Inc. of 0000 X.X. 00xx Xxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000 and
certain affiliated entities hereinafter referred to.
RECITALS:
1. As of July 1, 2002, that certain Credit Agreement (the "Credit
Agreement") was executed among the Bank, Ocean Bio-Chem, Inc. and certain
affiliated entities named therein (collectively, the "Borrowers") providing for
a Revolving Credit Loan (as defined in the Credit Agreement) in the amount of up
to $5,000,000 for a period ended May 31, 2003 at the variable rate of interest
therein set forth.
2. The Credit Agreement provides for extension of the Revolving Credit
Loan term for successive periods of up to one year each in such amounts as the
Bank may approve, to be effective by execution by the Borrowers and the Bank of
an Extension Agreement in the form hereof.
3. The Bank and the Borrowers, by execution of this Extension Agreement
seek to extend the Revolving Credit Loan for the period and in the amount
hereinafter indicated.
AGREEMENTS:
1. Definitions. All capitalized terms used herein are as defined in the
Loan Agreement unless otherwise stated.
2. Extension of Term and Amount. The Revolving Credit Loan is hereby
extended as provided in Section 3.01(b) of the Credit Agreement, subject to the
terms and conditions of the Credit Agreement. The maximum principal amount of
the Revolving Credit Loan outstanding at any time shall not exceed $___________.
The Termination Date of the Revolving Credit Loan pursuant to this Extension
Agreement is __________________, subject to prepayment and acceleration pursuant
to the terms of the Credit Agreement.
3. Ratification of Loan Agreement. The terms and conditions of the
Credit Agreement relating to the Revolving Credit Loan, including the Revolving
Credit Note Rate, prepayment provisions, and method of making advances are
expressly ratified and affirmed hereby and shall apply with the same force and
effect to extensions of credit made under this Extension Agreement as to
advances made during the initial term.
4. Security. It is expressly agreed, as provided in the Credit
Agreement, that any and all borrowing pursuant to this Extension Agreement is
secured according to the terms of such Credit Agreement and all security
documents executed in connection therewith.
IN WITNESS WHEREOF, the undersigned have executed this instrument on
this the ______ day of ______________________, 20____.
OCEAN BIO-CHEM, INC.
(SEAL)
By:
------------------------
Its
------------------------
ATTEST:
-------------------------------
Its
---------------------------
STAR-BRITE DISTRIBUTING, INC.
(SEAL)
By:
------------------------
Its
------------------------
ATTEST:
-------------------------------
Its
---------------------------
STAR BRITE AUTOMOTIVE, INC.
(SEAL)
By:
-----------------------
Its
-----------------------
ATTEST:
-------------------------------
Its
---------------------------
STAR BRITE DISTRIBUTING (CANADA), INC.
(SEAL)
By:
-----------------------
Its
-----------------------
ATTEST:
-------------------------------
Its
---------------------------
KINPAK INC.
(SEAL)
By:
-----------------------
Its
-----------------------
ATTEST:
-------------------------------
Its
---------------------------
(Borrowers)
REGIONS BANK
By:
-----------------------
Its
-----------------------
