Exhibit 4.2
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CREDIT AND SECURITY AGREEMENT
BY AND BETWEEN
RMED INTERNATIONAL, INC.
AND
XXXXX FARGO BUSINESS CREDIT, INC.
Dated as of: December 3, 1999
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Table of Contents
ARTICLE I DEFINITIONS ..................................................... 1
Section 1.1 Definitions .............................................. 1
Section 1.2 Cross References ......................................... 9
ARTICLE II AMOUNT AND TERMS OF THE CREDIT FACILITY ........................ 9
Section 2.1 Revolving Advances ....................................... 9
Section 2.2 Interest; Minimum Interest Charge; Default
Interest; Usury .................................................... 10
Section 2.3 Fees ..................................................... 11
Section 2.4 Computation of Interest and Fees; When Interest
Due and Payable .................................................... 11
Section 2.5 Capital Adequacy; Increased Costs and Reduced Return ..... 11
Section 2.6 Discretionary Nature of this Facility; Termination by
the Lender; Automatic Renewal ...................................... 12
Section 2.7 Voluntary Prepayment; Termination of the Credit
Facility by the Borrower ........................................... 13
Section 2.8 Termination Fees ......................................... 13
Section 2.9 Mandatory Prepayment ..................................... 13
Section 2.10 Payment ................................................. 13
Section 2.11 Payment on Non-Banking Days ............................. 13
Section 2.12 Use of Proceeds ......................................... 13
Section 2.13 Liability Records ....................................... 14
ARTICLE III SECURITY INTEREST; OCCUPANCY; SETOFF .......................... 14
Section 3.1 Grant of Security Interest ............................... 14
Section 3.2 Notification of Account Debtors and Other Obligors ....... 14
Section 3.3 Assignment of Insurance .................................. 14
Section 3.4 Occupancy ................................................ 15
Section 3.5 License .................................................. 15
Section 3.6 Financing Statement ...................................... 15
Section 3.7 Setoff ................................................... 16
ARTICLE IV CONDITIONS OF WILLINGNESS TO CONSIDER LENDING .................. 16
Section 4.1 Conditions Precedent to Lender's Willingness to Consider
Making the Initial Revolving Advance and the Term Advance .......... 16
Section 4.2 Conditions Precedent to All Advances ..................... 18
ARTICLE V REPRESENTATIONS AND WARRANTIES .................................. 19
Section 5.1 Corporate Existence and Power; Name; Chief Executive
Office; Inventory and Equipment Locations; Tax Identification
Number ............................................................. 19
Section 5.2 Authorization of Borrowing; No Conflict as to
Law or Agreements .................................................. 19
Section 5.3 Legal Agreements ......................................... 19
Section 5.4 Subsidiaries ............................................. 20
Section 5.5 Financial Condition; No Adverse Change ................... 20
Section 5.6 Litigation ............................................... 20
Section 5.7 Regulation U ............................................. 20
Section 5.8 Taxes .................................................... 20
Section 5.9 Titles and Liens ......................................... 20
Section 5.10 Plans ................................................... 20
Section 5.11 Default ................................................. 21
Section 5.12 Environmental Matters ................................... 21
Section 5.13 Submissions to Lender ................................... 22
Section 5.14 Financing Statements .................................... 22
Section 5.15 Rights to Payment ....................................... 22
ARTICLE VI BORROWER'S AFFIRMATIVE COVENANTS ............................... 23
Section 6.1 Reporting Requirements ................................... 23
Section 6.2 Books and Records; Inspection and Examination ............ 25
Section 6.3 Account Verification ..................................... 26
Section 6.4 Compliance with Laws ..................................... 26
Section 6.5 Payment of Taxes and Other Claims ........................ 26
Section 6.6 Maintenance of Properties ................................ 26
Section 6.7 Insurance ................................................ 27
Section 6.8 Preservation of Existence ................................ 27
Section 6.9 Delivery of Instruments, etc ............................. 27
Section 6.10 Collateral Account ...................................... 27
Section 6.11 Performance by the Lender ............................... 28
Section 6.12 Minimum Book Net Worth .................................. 29
Section 6.13 Minimum Net Earnings .................................... 30
ARTICLE VII NEGATIVE COVENANTS ............................................ 30
Section 7.1 Liens .................................................... 30
Section 7.2 Indebtedness ............................................. 31
Section 7.3 Guaranties ............................................... 31
Section 7.4 Investments and Subsidiaries ............................. 31
Section 7.5 Dividends ................................................ 32
Section 7.6 Sale or Transfer of Assets; Suspension of
Business Operations ................................................ 32
Section 7.7 Consolidation and Merger; Asset Acquisitions ............. 32
Section 7.8 Sale and Leaseback ....................................... 32
Section 7.9 Restrictions on Nature of Business ....................... 32
Section 7.10 Capital Expenditures .................................... 32
Section 7.11 Accounting .............................................. 33
Section 7.12 Discounts, etc .......................................... 33
Section 7.13 Defined Benefit Pension Plans ........................... 33
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Section 7.14 Other Defaults .......................................... 33
Section 7.15 Place of Business; Name ................................. 33
Section 7.16 Organizational Documents ................................ 33
Section 7.17 Salaries; Management Fees ............................... 33
Section 7.18 Change in Ownership ..................................... 33
ARTICLE VIII EVENTS OF DEFAULT, RIGHTS AND REMEDIES ....................... 34
Section 8.1 Events of Default ........................................ 34
Section 8.2 Rights and Remedies ...................................... 36
Section 8.3 Certain Notices .......................................... 37
ARTICLE IX MISCELLANEOUS .................................................. 37
Section 9.1 No Waiver; Cumulative Remedies ........................... 37
Section 9.2 Amendments, Etc .......................................... 37
Section 9.3 Addresses for Notices, Etc ............................... 37
Section 9.4 Further Documents ........................................ 38
Section 9.5 Collateral ............................................... 38
Section 9.6 Costs and Expenses ....................................... 39
Section 9.7 Indemnity ................................................ 39
Section 9.8 Participants ............................................. 40
Section 9.9 Execution in Counterparts ................................ 40
Section 9.10 Binding Effect; Assignment; Complete Agreement;
Exchanging Information ............................................. 40
Section 9.11 Severability of Provisions .............................. 40
Section 9.12 Headings ................................................ 40
Section 9.13 Governing Law; Jurisdiction, Venue; Waiver of
Jury Trial ......................................................... 41
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CREDIT AND SECURITY AGREEMENT
Dated as of December 3, 1999
RMED INTERNATIONAL, INC., a Colorado corporation (the "Borrower"), and
XXXXX FARGO BUSINESS CREDIT, INC., a Minnesota corporation (the "Lender"),
hereby agree as follows:
ARTICLE I
Definitions
Section 1.1. Definitions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular; and
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP.
"Accounts" means all of the Borrower's accounts, as such term is
defined in the UCC, including, without limitation, the aggregate unpaid
obligations of customers and other account debtors to the Borrower arising
out of the sale or lease of goods or rendition of services by the Borrower
on an open account or deferred payment basis.
"Advance" means a Revolving Advance.
"Affiliate" or "Affiliates" means any Person controlled by,
controlling or under common control with the Borrower, and any Subsidiary
of the Borrower. For purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit and Security Agreement, as amended,
supplemented or restated from time to time.
"Banking Day" means a day other than a Saturday, Sunday or other day
on which banks are generally not open for business in Milwaukee,
Wisconsin.
"Book Net Worth" means as of any date of determination the aggregate
of the common and preferred stockholders' equity in the Borrower,
determined in
accordance with GAAP, plus any loss on the sale of equipment recorded by the
Borrower prior to such date and minus any gain on the sale of equipment recorded
by the Borrower prior to such date.
"Borrowing Base" means, at any time and subject to change from time to
time in the Lender's sole discretion, the lesser of
(a) the Maximum Line; or
(b) the sum of
(i) the lesser of (A) the sum of (1) 85% of Eligible
Accounts other than Accounts of Drypers Corporation plus
(2) the lesser of 85% of Eligible Accounts of Drypers
Corporation or $750,000, or (B) $5,000,000; minus
(ii) the lesser of (A) the sum of (1) 50% of Eligible
Inventory consisting of raw materials, plus (2) 65% of
Eligible Inventory consisting of finished goods plus (3)
the lesser of 25% of Eligible Inventory consisting of
packaging or $100,000, or (B) $1,000,000; plus
(iii) the outstanding amount of the Special Accommodation.
"Capital Expenditures" for a period means any expenditure of money for the
lease, purchase or other acquisition of any capital asset, or for the lease of
any other asset whether payable currently or in the future.
"Collateral" means all of the Borrower's Equipment, General Intangibles,
Inventory, Receivables, Investment Property, all sums on deposit in any
Collateral Account, and any items in any Lockbox; together with (i) all
substitutions and replacements for and products of any of the foregoing; (ii)
proceeds of any and all of the foregoing; (iii) in the case of all tangible
goods, all accessions; (iv) all accessories, attachments, parts, equipment and
repairs now or hereafter attached or affixed to or used in connection with any
tangible goods; and (v) all warehouse receipts, bills of lading and other
documents of title now or hereafter covering such goods.
"Collateral Account" has the meaning given in the Collateral Account
Agreement.
"Collateral Account Agreement" means the Collateral Account Agreement of
even date herewith by and among the Borrower, Norwest Bank Wisconsin and the
Lender.
"Credit Facility" means the discretionary credit facility being made
available to the Borrower by the Lender pursuant to Article II.
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"Default" means an event that, with giving of notice or passage of time or
both, would constitute an Event of Default.
"Default Period" means any period of time beginning on the first day of
any month during which a Default or Event of Default has occurred and ending on
the date the Lender notifies the Borrower in writing that such Default or Event
of Default has been cured or waived.
"Default Rate" means an annual rate equal to three percent (3%) over the
Floating Rate, which rate shall change when and as the Floating Rate changes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Eligible Accounts" means all unpaid Accounts, net of any credits, except
the following shall not in any event be deemed Eligible Accounts:
(i) That portion of Accounts unpaid ninety (90) days or more after
the invoice date;
(ii) That portion of Accounts that is disputed or subject to a claim
of offset or a contra account;
(iii) That portion of Accounts not yet earned by the final delivery
of goods or rendition of services, as applicable, by the Borrower to the
customer;
(iv) Accounts owed by any unit of government, whether foreign or
domestic (provided, however, that there shall be included in Eligible
Accounts that portion of Accounts owed by such units of government for
which the Borrower has provided evidence satisfactory to the Lender that
(A) the Lender has a first priority perfected security interest and (B)
such Accounts may be enforced by the Lender directly against such unit of
government under all applicable laws);
(v) Accounts owed by an account debtor located outside the United
States of America and Canada which are not (A) backed by a bank letter of
credit naming the Lender as beneficiary or assigned to the Lender, in the
Lender's possession and acceptable to the Lender in all respects, in its
sole discretion or (B) covered by a foreign receivables insurance policy
acceptable to the Lender in its sole discretion;
(vi) Accounts owed by an account debtor that is insolvent, the
subject of bankruptcy proceedings or has gone out of business;
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(vii) Accounts owed by a shareholder, Subsidiary, Affiliate, officer
or employee of the Borrower;
(viii) Accounts not subject to a duly perfected security interest in
the Lender's favor or which are subject to any lien, security interest or
claim including, without limitation, any payment or performance bond in
favor of any Person other than the Lender;
(ix) That portion of Accounts that has been restructured, extended,
amended or modified;
(x) That portion of Accounts that constitutes advertising, finance
charges, service charges or sales or excise taxes;
(xi) Accounts owed by an account debtor, regardless of whether
otherwise eligible, if twenty five percent (25%) or more of the total
amount due under Accounts from such debtor is ineligible under clauses
(i), (ii) or (ix) above;
(xii) That portion of Accounts which is subject to reserves for
credits arising from advertising billbacks and coupons in an amount
determined on a monthly basis by the Lender in its sole discretion; and
(xiii) Accounts, or portions thereon otherwise deemed ineligible by
the Lender in its sole discretion.
"Eligible Inventory" means all Inventory of the Borrower, at the lower of
cost or market value as determined on a first-in-first-out basis in accordance
with GAAP; provided, however, that the following shall not in any event be
deemed Eligible Inventory:
(i) Inventory that is: in-transit; located at any warehouse, job
site or other premises not approved by the Lender in writing; located
outside of the states, or localities, as applicable, in which the Lender
has filed financing statements to perfect a first priority security
interest in such Inventory; covered by any negotiable or non-negotiable
warehouse receipt, xxxx of lading or other document of title; on
consignment from any Person; on consignment to any Person or subject to
any bailment unless such consignee or bailee has executed an agreement
with the Lender;
(ii) Supplies, parts or sample Inventory;
(iii) Work-in-process Inventory;
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(iv) Inventory that is damaged, obsolete, slow moving or not
currently saleable in the normal course of the Borrower's operations;
(v) Inventory that the Borrower has returned, has attempted to
return, is in the process of returning or intends to return to the vendor
thereof;
(vi) Inventory that is perishable or live;
(vii) Inventory manufactured by the Borrower pursuant to a license
unless the applicable licensor has agreed in writing to permit the Lender
to exercise its rights and remedies against such Inventory;
(viii) Inventory that is subject to a security interest in favor of
any Person other than the Lender; and
(ix) Inventory otherwise deemed ineligible by the Lender in its sole
discretion.
"Environmental Laws" has the meaning specified in Section 5.12.
"Equipment" means all of the Borrower's equipment, as such term is defined
in the UCC, whether now owned or hereafter acquired, including, but not limited
to, all present and future machinery, vehicles, furniture, fixtures,
manufacturing equipment, shop equipment, office and recordkeeping equipment,
parts, tools, supplies, and including, specifically, without limitation, the
goods described in any equipment schedule or list herewith or hereafter
furnished to the Lender by the Borrower.
"Event of Default" has the meaning specified in Section 8.1.
"Floating Rate" means (i) with respect to all Advances, other than the
Special Accommodation, (a) up to and including Five Hundred Thousand Dollars
($500,000) of Advances outstanding, an annual rate equal to the sum of the Prime
Rate plus three percent (3.0%), and (b) in excess of Five Hundred Thousand
Dollars ($500,000) of Advances outstanding, an annual rate equal to the sum of
the Prime Rate plus one and one half percent (1.5%),which annual rates shall
change when and as the Prime Rate changes; and (ii) with respect to the Special
Accommodation, an annual rate equal to the sum of the Prime Rate plus five
percent (5.0%), which annual rate shall change when and as the Prime Rate
changes.
"Funding Date" has the meaning given in Section 2.1.
"GAAP" means generally accepted accounting principles, applied on a basis
consistent with the accounting practices applied in the financial statements
described in Section 5.5.
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"General Intangibles" means all of the Borrower's general intangibles, as
such term is defined in the UCC, whether now owned or hereafter acquired,
including, without limitation, all present and future patents, patent
applications, copyrights, trademarks, trade names, trade secrets, customer or
supplier lists and contracts, manuals, operating instructions, permits,
franchises, the right to use the Borrower's name, and the goodwill of the
Borrower's business.
"Hazardous Substance" has the meaning given in Section 5.12.
"Inventory" means all of the Borrower's inventory, as such term is defined
in the UCC, whether now owned or hereafter acquired, whether consisting of whole
goods, spare parts or components, supplies or materials, whether acquired, held
or furnished for sale, for lease or under service contracts or for manufacture
or processing, and wherever located.
"Investment Property" means all of the Borrower's investment property, as
such term is defined in the UCC, whether now owned or hereafter acquired,
including, but not limited to all securities, security entitlements, securities
accounts, commodity contracts, commodity accounts, stocks, bonds, mutual fund
shares, money market shares and United States Government securities.
"Intercreditor Agreement" means the Intercreditor Agreement executed on
behalf of International Financial Services Corporation and the Lender and
acknowledged by the Borrower.
"Loan Documents" means this Agreement, the Note, the Security Documents,
the Subordination Agreements and the Intercreditor Agreement.
"Lockbox" has the meaning given in the Lockbox Agreement.
"Lockbox Agreement" means the Lockbox Agreement by and among the Borrower,
Norwest Bank Wisconsin, and the Lender, of even date herewith.
"Maturity Date" has the meaning given in Section 2.6.
"Maximum Line" means Five Million Dollars ($5,000,000).
"Minimum Interest Charge" has the meaning given in Section 2.2(b).
"Net Earnings" means, for any fiscal period, Borrower's after tax net
income, decreased by the sum of any extraordinary or non-operating income or any
gain on the sale of equipment recorded by the Borrower and increased by any
extraordinary or non-operating expense or loss or any loss on the sale of
equipment recorded by the Borrower, as determined in accordance with GAAP.
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"Norwest Bank Wisconsin" means Norwest Bank Wisconsin, National
Association, a national banking association with an office located in Eau
Claire, Wisconsin.
"Note" means the Revolving Note.
"Obligations" means the Note and each and every other debt, liability and
obligation of every type and description which the Borrower may now or at any
time hereafter owe to the Lender, whether such debt, liability or obligation now
exists or is hereafter created or incurred, whether it arises in a transaction
involving the Lender alone or in a transaction involving other creditors of the
Borrower, and whether it is direct or indirect, due or to become due, absolute
or contingent, primary or secondary, liquidated or unliquidated, or sole, joint,
several or joint and several, and including, specifically, but not limited to,
all indebtedness of the Borrower arising under this Agreement, the Note, or any
other loan or credit agreement or guaranty between the Borrower and the Lender,
whether now in effect or hereafter entered into.
"Original Maturity Date" means December 3, 2001.
"Permitted Lien" has the meaning given in Section 7.1.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" means an employee benefit plan or other plan maintained for the
borrower's employees and covered by Title IV of ERISA.
"Premises" means all premises where the Borrower conducts its business and
has any rights of possession, including, without limitation, the premises
legally described in Exhibit C attached hereto.
"Prime Rate" means the rate of interest publicly announced from time to
time by Xxxxx Fargo Bank, N. A. as its "prime rate" or, if such bank ceases to
announce a rate so designated, any similar successor rate designated by the
Lender.
"Receivables" means each and every right of the Borrower to the payment of
money, whether such right to payment now exists or hereafter arises, whether
such right to payment arises out of a sale, lease or other disposition of goods
or other property, out of a rendering of services, out of a loan, out of the
overpayment of taxes or other liabilities, or otherwise arises under any
contract or agreement, whether such right to payment is created, generated or
earned by the Borrower or by some other person who subsequently transfers such
person's interest to the Borrower, whether such right to payment is or is not
already earned by performance, and howsoever such right to payment may be
evidenced, together with all other rights and interests
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(including all liens and security interests) which the Borrower may at any time
have by law or agreement against any account debtor or other obligor obligated
to make any such payment or against any property of such account debtor or other
obligor; all including, but not limited to, all present and future accounts,
contract rights, loans and obligations receivable, chattel papers, bonds, notes
and other debt instruments, tax refunds and rights to payment in the nature of
general intangibles.
"Reportable Event" shall have the meaning assigned to that term in Title
IV of ERISA.
"Revolving Advance" has the meaning given in Section 2.1.
"Revolving Note" means the Borrower's revolving promissory note, payable
to the order of the Lender in substantially the form of Exhibit A hereto and any
note or notes issued in substitution therefor, as the same may hereafter be
amended, supplemented or restated from time to time.
"Security Documents" means this Agreement, the Collateral Account
Agreement, the Lockbox Agreement, and any other document delivered to the Lender
from time to time to secure the Obligations, as the same may hereafter be
amended, supplemented or restated from time to time.
"Security Interest" has the meaning given in Section 3.1.
"Special Accommodation" has the meaning given in Section 2.1(c).
"Subordination Agreements" means the Subordination Agreements of even date
herewith, executed by each of Xxxx X. Xxxxx and Xxxxxx X. Xxxxxx in the Lender's
favor and acknowledged by the Borrower.
"Subsidiary" means any corporation of which more than fifty percent (50%)
of the outstanding shares of capital stock having general voting power under
ordinary circumstances to elect a majority of the board of directors of such
corporation, irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the happening of
any contingency, is at the time directly or indirectly owned by the Borrower, by
the Borrower and one or more other Subsidiaries, or by one or more other
Subsidiaries.
"Termination Date" means the earliest of (i) the Maturity Date, (ii) the
date the Borrower terminates the Credit Facility, or (iii) the date the Lender
demands payment of the Obligations.
"UCC" means the Uniform Commercial Code as in effect from time to time in
the state designated in Section 9.13 as the state whose laws shall govern this
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Agreement, or in any other state whose laws are held to govern this
Agreement or any portion hereof
"Validity Guarantor" means Xxxx X. Xxxxxx.
Section 1.2. Cross References. All references in this Agreement to
Articles, Sections and subsections, shall be to Articles, Sections and
subsections of this Agreement unless otherwise explicitly specified.
ARTICLE II
Amount and Terms of the Credit Facility
Section 2.1. Revolving Advances. The Lender may, in its sole discretion,
make advances to the Borrower under this Section 2.1 from time to time from the
date all of the conditions set forth in Section 4.1 are satisfied (the "Funding
Date") to the Termination Date, on the terms and subject to the conditions
herein set forth (the "Revolving Advances"). The Lender shall not consider any
request for a Revolving Advance if, after giving effect to such requested
Revolving Advance, the sum of the outstanding and unpaid Revolving Advances
under this Section 2.1 or otherwise would exceed the Borrowing Base. The
Borrower's obligation to pay the Revolving Advances shall be evidenced by the
Revolving Note and shall be secured by the Collateral as provided in Article
III. Within the limits set forth in this Section 2.1, the Borrower may request
Revolving Advances, prepay pursuant to Section 2.7 and request additional
Revolving Advances. The Borrower agrees to comply with the following procedures
in requesting Revolving Advances under this Section 2.1:
(a) The Borrower shall make each request for a Revolving Advance to
the Lender before 11:00 a.m. (Milwaukee time) of the day of the requested
Revolving Advance. Requests may be made in writing or by telephone,
specifying the date of the requested Revolving Advance and the amount
thereof. Each request shall be by (i) any officer of the Borrower; or (ii)
any person designated as the Borrower's agent by any officer of the
Borrower in a writing delivered to the Lender; or (iii) any person whom
the Lender reasonably believes to be an officer of the Borrower or such a
designated agent.
(b) Upon fulfillment of the applicable conditions set forth in
Article IV, the Lender shall disburse the proceeds of the requested
Revolving Advance by crediting the same to the Borrower's demand deposit
account maintained with Norwest Bank Wisconsin unless the Lender and the
Borrower shall agree in writing to another manner of disbursement. Upon
the Lender's request, the Borrower shall promptly confirm each telephonic
request for a Revolving Advance by executing and delivering an appropriate
confirmation certificate to the Lender. The Borrower shall repay all
Revolving Advances even if the Lender does not receive such confirmation
and even if the person requesting a Revolving Advance was not in fact
authorized to do so.
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Any request for a Revolving Advance, whether written or telephonic, shall
be deemed to be a representation by the Borrower that the conditions set
forth in Section 4.2 have been satisfied as of the time of the request.
(c) The Lender may, in its sole discretion, make a Special
Accommodation (the "Special Accommodation") of up to Two Hundred Thousand
Dollars ($200,000), which Special Accommodation shall be secured by the
Collateral as provided in Article III hereof. The principal of the Special
Accommodation, if any, shall be payable as follows: equal monthly
installments of Sixteen Thousand Six Hundred Sixty Seven Dollars ($16,667)
each due on January 1, 2000 and on the first day of each successive month
thereafter, plus a final payment of unpaid principal of the Special
Accommodation due on December 1, 2000.
Section 2.2. Interest; Minimum Interest Charge; Default Interest; Usury.
Interest accruing on the Note shall be due and payable in arrears on the first
day of each month.
(a) Note. Except as set forth in Sections 2.2(c) and 2.2(d), the
outstanding principal balance of the Note shall bear interest at the
Floating Rate.
(b) Minimum Interest Charge. Notwithstanding the interest payable
pursuant to Section 2.2(a), the Borrower shall pay to the Lender interest
of not less than Five Thousand Dollars ($5,000) per calendar month (the
"Minimum Interest Charge") during the term of this Agreement, and the
Borrower shall pay any deficiency between the Minimum Interest Charge and
the amount of interest otherwise calculated under Sections 2.2(a) and
2.2(d) on the date and in the manner provided in Section 2.4.
(c) Default Interest Rate. At any time during any Default Period, in
the Lender's sole discretion and without waiving any of its other rights
and remedies, the principal of the Advances outstanding from time to time
shall bear interest at the Default Rate, effective for any periods
designated by the Lender from time to time during that Default Period.
(d) Usury. No rate change shall be put into effect which would
result in a rate greater than the highest rate permitted by law.
Notwithstanding anything to the contrary contained in any Loan Document,
all agreements which either now are or which shall become agreements
between the Borrower and the Lender are hereby limited so that in no
contingency or event whatsoever shall the total liability for payments in
the nature of interest, additional interest and other charges exceed the
applicable limits imposed by any applicable usury laws. If any payments in
the nature of interest, additional interest and other charges made under
any Loan Document are held to be in excess of the limits imposed by any
applicable usury laws, it is agreed that any such amount held to be in
excess shall be considered payment of principal hereunder, and the
indebtedness evidenced hereby shall be reduced by such amount so
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that the total liability for payments in the nature of interest,
additional interest and other charges shall not exceed the applicable
limits imposed by any applicable usury laws, in compliance with the
desires of the Borrower and the Lender. This provision shall never be
superseded or waived and shall control every other provision of the Loan
Documents and all agreements between the Borrower and the Lender, or their
successors and assigns.
Section 2.3. Fees.
(a) Closing Fee. The Borrower hereby agrees to pay the Lender on the
Funding Date, a closing fee of Eight Thousand Seven Hundred Fifty Dollars
($8,750).
(b) Audit Fees. The Borrower hereby agrees to pay the Lender, on
demand, audit fees in connection with any audits or inspections conducted
by the Lender of any Collateral or the Borrower's operations or business
at the rates established from time to time by the Lender as its audit fees
(which fees are currently One Thousand Two Hundred Fifty Dollars ($1,250)
per quarter) beginning January 1, 2000, plus out-of-pocket costs and
expenses, and during Default Periods all out-of-pocket costs and expenses
incurred in conducting any such audit or inspection.
(c) Miscellaneous Fees. The Borrower hereby agrees to (i) reimburse
the Lender for all wire transfer charges and automated clearing house
charges and to (ii) pay overadvance charges of Two Hundred Dollars ($200)
per day; provided, however, that from the first day of any month during
which any Default Period commences or exists at any time, the daily
overadvance charge (if an overadvance exists) shall be Four Hundred
Dollars ($400).
Section 2.4. Computation of Interest and Fees: When Interest Due and
Payable. Interest accruing on the outstanding principal balance of the Advances
and fees hereunder outstanding from time to time shall be computed on the basis
of actual number of days elapsed in a year of three hundred sixty (360) days.
Interest shall be payable in arrears on the first day of each month and on the
Termination Date.
Section 2.5. Capital Adequacy: Increased Costs and Reduced Return. If any
Related Lender determines at any time that its Return has been reduced as a
result of any Rule Change, such Related Lender may require the Borrower to pay
it the amount necessary to restore its Return to what it would have been had
there been no Rule Change. For purposes of this Section 2.5:
(a) "Capital Adequacy Rule" means any law, rule, regulation,
guideline, directive, requirement or request regarding capital adequacy,
or the interpretation or administration thereof by any governmental or
regulatory authority, central bank or comparable agency, whether or not
having the force of law, that applies to any Related Lender. Such rules
include rules requiring financial institutions to maintain
11
total capital in amounts based upon percentages of outstanding loans,
binding loan commitments and letters of credit.
(b) "Return" for any period, means the return as determined by such
Related Lender on the Advances based upon its total capital requirements
and a reasonable attribution formula that takes account of the Capital
Adequacy Rules then in effect. Return may be calculated for each calendar
quarter and for the shorter period between the end of a calendar quarter
and the date of termination in whole of this Agreement.
(c) "Rule Change" means any change in any Capital Adequacy Rule
occurring after the date of this Agreement, but the term does not include
any changes in applicable requirements that at the Closing Date are
scheduled to take place under the existing Capital Adequacy Rules or any
increases in the capital that any Related Lender is required to maintain
to the extent that the increases are required due to a regulatory
authority's assessment of the financial condition of such Related Lender.
(d) "Related Lender" includes, but is not limited to, the Lender,
any parent corporation of the Lender or the Issuer and any assignee of any
interest of the Lender hereunder and any participant in the loans made
hereunder.
Certificates of any Related Lender sent to the Borrower from time to time
claiming compensation under this Section 2.5, stating the reason therefor and
setting forth in reasonable detail the calculation of the additional amount or
amounts to be paid to the Related Lender hereunder to restore its Return shall
be conclusive absent manifest error. In determining such amounts, the Related
Lender may use any reasonable averaging and attribution methods.
Section 2.6. Discretionary Nature of this Facility; Termination by the
Lender; Automatic Renewal. This Agreement contains the terms and conditions upon
which the Lender presently expects to make Advances, including the Special
Accommodation, to the Borrower. Each Advance by the Lender to the Borrower,
including the Special Accommodation, shall be in the Lender's sole discretion,
and the Lender need not show that an adverse change has occurred in the
Borrower's condition, financial or otherwise, or that any of the conditions of
Article IV have not been met, in order to refuse to make any requested Advance
or to demand payment of the Obligations. The Lender may at any time terminate
the Credit Facility whereupon the Lender shall no longer consider requests for
Advances under this Agreement. Unless terminated by the Lender at any time or by
the Borrower pursuant to Section 2.7, the Credit Facility shall remain in effect
until the Original Maturity Date and, thereafter, shall automatically renew for
successive one year periods (the Original Maturity Date and each anniversary
date thereof which is at the end of any year in which the Credit Facility has
been automatically renewed, is herein referred to as a "Maturity Date").
12
Section 2.7. Voluntary Prepayment: Termination of the Credit Facility by
the Borrower. Except as otherwise provided herein, the Borrower may prepay the
Revolving Advances from time to time in part. The Borrower may prepay the
Revolving Advances in whole at any time and terminate the Credit Facility at any
time if it (i) gives the Lender at least thirty (30) days prior written notice
and (ii) pays the Lender termination fees in accordance with Section 2.8. Upon
termination of the Credit Facility and payment and performance of all
Obligations, the Lender shall release or terminate the Security Interest and the
Security Documents to which the Borrower is entitled by law.
Section 2.8. Termination Fees. If that portion of the Credit Facility
provided under Section 2.1 is terminated (i) for any reason as of a date other
than a Maturity Date, or (ii) by the Borrower as of a Maturity Date but without
the Lender having received written notice of such termination from the Borrower
at least ninety (90) days before such Maturity Date, the Borrower shall pay to
the Lender a fee in an amount equal to Five Thousand Dollars ($5,000) times the
number of calendar months remaining until the Original Maturity Date; provided,
however, that no termination fee will be due if the Credit Facility is
terminated after the first anniversary of the Funding Date in connection with
the refinance of the Credit Facility by a Norwest Bank or Xxxxx Fargo Bank.
Section 2.9. Mandatory Prepayment. Without notice or demand, if the sum of
the outstanding principal balance of the Revolving Advances shall at any time
exceed the Borrowing Base, the Borrower shall immediately prepay the Revolving
Advances to the extent necessary to eliminate such excess. Any payment received
by the Lender under this Section 2.9 or under Section 2.7 may be applied to the
Obligations, in such order and in such amounts as the Lender, in its discretion,
may from time to time determine.
Section 2.10. Payment. All payments to the Lender shall be made in
immediately available funds and shall be applied to the Obligations one (1)
Banking Day after receipt by the Lender. The Lender may hold all payments not
constituting immediately available funds for three (3) Banking Days before
applying them to the Obligations. Notwithstanding anything in Section 2.1, the
Borrower hereby authorizes the Lender, in its discretion at any time or from
time to time without the Borrower's request and even if the conditions set forth
in Section 4.2 would not be satisfied, to make a Revolving Advance in an amount
equal to the portion of the Obligations from time to time due and payable.
Section 2.11. Payment on Non-Banking Days. Whenever any payment to be made
hereunder shall be stated to be due on a day which is not a Banking Day, such
payment may be made on the next succeeding Banking Day, and such extension of
time shall in such case be included in the computation of interest on the
Advances or the fees hereunder, as the case maybe.
Section 2.12. Use of Proceeds. The Borrower shall use the proceeds of
Advances in accordance with Schedule 2.12, and thereafter the proceeds of
Advances, if any, shall be used for ordinary working capital purposes.
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Section 2.13. Liability Records. The Lender may maintain from time to
time, at its discretion, liability records as to the Obligations. All entries
made on any such record shall be presumed correct until the Borrower establishes
the contrary. Upon the Lender's demand, the Borrower will admit and certify in
writing the exact principal balance of the Obligations that the Borrower then
asserts to be outstanding. Any billing statement or accounting rendered by the
Lender shall be conclusive and fully binding on the Borrower unless the Borrower
gives the Lender specific written notice of exception within thirty (30) days
after receipt.
ARTICLE III
Security Interest; Occupancy; Setoff
Section 3.1. Grant of Security Interest. The Borrower hereby pledges,
assigns and grants to the Lender a security interest (collectively referred to
as the "Security Interest") in the Collateral, as security for the payment and
performance of the Obligations.
Section 3.2. Notification of Account Debtors and Other Obligors. The
Lender may at any time a Default Period exists notify any account debtor or
other person obligated to pay the amount due that such right to payment has been
assigned or transferred to the Lender for security and shall be paid directly to
the Lender. The Borrower will join in giving such notice if the Lender so
requests. At any time after the Borrower or the Lender gives such notice to an
account debtor or other obligor, the Lender may, but need not, in the Lender's
name or in the Borrower's name, (a) demand, xxx for, collect or receive any
money or property at any time payable or receivable on account of, or securing,
any such right to payment, or grant any extension to, make any compromise or
settlement with or otherwise agree to waive, modify, amend or change the
obligations (including collateral obligations) of any such account debtor or
other obligor; and (b) as the Borrower's agent and attorney-in-fact, notify the
United States Postal Service to change the address for delivery of the
Borrower's mail to any address designated by the Lender, otherwise intercept the
Borrower's mail, and receive and open the Borrower's mail, applying all
Collateral as permitted under this Agreement and holding all other mail for the
Borrower's account or forwarding such mail to the Borrower's last known address.
Section 3.3. Assignment of Insurance. As additional security for the
payment and performance of the Obligations, the Borrower hereby assigns to the
Lender any and all monies (including, without limitation, proceeds of insurance
and refunds of unearned premiums) due or to become due under, and all other
rights of the Borrower with respect to, any and all policies of insurance now or
at any time hereafter covering the Collateral or any evidence thereof or any
business records or valuable papers pertaining thereto, and the Borrower hereby
directs the issuer of any such policy to pay all such monies directly to the
Lender. At any time, whether or not a Default Period then exists, the Lender may
(but need not), in the Lender's name or in the Borrower's name, execute and
deliver proof of claim,
14
receive all such monies, endorse checks and other instruments representing
payment of such monies, and adjust, litigate, compromise or release any claim
against the issuer of any such policy.
Section 3.4. Occupancy.
(a) The Borrower hereby irrevocably grants to the Lender the right
to take possession of the Premises at any time during a Default Period.
(b) The Lender may use the Premises only to hold, process,
manufacture, sell, use, store, liquidate, realize upon or otherwise
dispose of goods that are Collateral and for other purposes that the
Lender may in good xxxxx xxxx to be related or incidental purposes.
(c) The Lender's right to hold the Premises shall cease and
terminate upon the earlier of (i) payment in full and discharge of all
Obligations, and (ii) final sale or disposition of all goods constituting
Collateral and delivery of all such goods to purchasers.
(d) The Lender shall not be obligated to pay or account for any rent
or other compensation for the possession, occupancy or use of any of the
Premises; provided, however, that if the Lender does pay or account for
any rent or other compensation for the possession, occupancy or use of any
of the Premises, the Borrower shall reimburse the Lender promptly for the
full amount thereof. In addition, the Borrower will pay, or reimburse the
Lender for, all taxes, fees, duties, imposts, charges and expenses at any
time incurred by or imposed upon the Lender by reason of the execution,
delivery, existence, recordation, performance or enforcement of this
Agreement or the provisions of this Section 3.4.
Section 3.5. License. The Borrower hereby grants to the Lender a
non-exclusive, worldwide and royalty-free license to use or otherwise exploit
all trademarks, franchises, trade names, copyrights and patents of the Borrower
for the purpose of selling, leasing or otherwise disposing of any or all
Collateral during any Default Period.
Section 3.6. Financing Statement. A carbon, photographic or other
reproduction of this Agreement or of any financing statements signed by the
Borrower is sufficient as a financing statement and may be filed as a financing
statement in any state to perfect the security interests granted hereby. For
this purpose, the following information is set forth:
15
Name and address of Debtor:
RMED International, Inc.
0000 Xxxxx Xxxxxxxx Xxx
Xxx Xxxxxx, Xxxxxxxxx 00000-0000
Federal Tax Identification No. 00-0000000
Name and address of Secured Party:
Xxxxx Fargo Business Credit, Inc.
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
MAC N9811-143
Xxxxxxxxx, Xxxxxxxxx 00000
Federal Tax Identification No. 00-0000000
Section 3.7. Setoff. The Borrower agrees that the Lender may at any time
or from time to time, at its sole discretion and without demand and without
notice to anyone, setoff any liability owed to the Borrower by the Lender,
whether or not due, against any Obligation, whether or not due. In addition,
each other Person holding a participating interest in any Obligations shall have
the right to appropriate or setoff any deposit or other liability then owed by
such Person to the Borrower, whether or not due, and apply the same to the
payment of said participating interest, as fully as if such Person had lent
directly to the Borrower the amount of such participating interest.
ARTICLE IV
Conditions of Willingness to Consider Lending
Section 4.1. Conditions Precedent to Lender's Willingness to Consider
Making the Initial Advances. The Lender's willingness to consider making the
initial Advances hereunder shall be subject to the condition precedent that the
Lender shall have received all of the following, each in form and substance
satisfactory to the Lender:
(a) This Agreement, properly executed by the Borrower.
(b) The Note, properly executed by the Borrower.
(c) A true and correct copy of any and all leases pursuant to which
the Borrower is leasing any of the Premises, together with a landlord's
disclaimer and consent with respect to each such lease.
(d) A true and correct copy of any and all mortgages or other title
retention agreements pursuant to which the Borrower has mortgaged or any
other party retains
16
title to any of the Premises, together with a disclaimer and consent with
respect to each such property.
(e) The Collateral Account Agreement, properly executed by the
Borrower and Norwest Bank Wisconsin.
(f) The Lockbox Agreement, properly executed by the Borrower and
Norwest Bank Wisconsin.
(g) The Patent and Trademark Security Agreement, properly executed
by the Borrower.
(h) The Intercreditor Agreement properly executed on behalf of
International Financial Services Corporation and acknowledged by the
Borrower.
(i) The Subordination Agreements properly executed by each of Xxxx
0. Xxxxx and Xxxxxx X. Xxxxxx and acknowledged by the Borrower.
(j) Current searches of appropriate filing offices showing that (i)
no state or federal tax liens have been filed and remain in effect against
the Borrower, except if such tax liens will be paid on the Funding Date,
(ii) no financing statements or assignments of patents, trademarks or
copyrights have been filed and remain in effect against the Borrower
except those financing statements and assignments of patents, trademarks
or copyrights relating to Permitted Liens or to liens held by Persons who
have agreed in writing that upon receipt of proceeds of the Advances, they
will deliver UCC releases and/or terminations and releases of such
assignments of patents, trademarks or copyrights satisfactory to the
Lender, and (iii) the Lender has duly filed all financing statements
necessary to perfect the Security Interest, to the extent the Security
Interest is capable of being perfected by filing.
(k) A certificate of the Borrower's Secretary or Assistant Secretary
certifying as to (i) the resolutions of the Borrower's directors and, if
required, shareholders, authorizing the execution, delivery and
performance of the Loan Documents, (ii) the Borrower's articles of
incorporation and bylaws, and (iii) the signatures of the Borrower's
officers or agents authorized to execute and deliver the Loan Documents
and other instruments, agreements and certificates, including Advance
requests, on the Borrower's behalf.
(l) A letter from an officer of the Borrower identifying those
individuals who are authorized to initiate and confirm payment orders and
to sign collateral reports.
(m) A current certificate issued by the Secretary of State of
Colorado, certifying that the Borrower is in compliance with all
applicable organizational requirements of the State of Colorado.
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(n) Evidence that the Borrower is duly licensed or qualified to
transact business and in good standing in all jurisdictions where the
character of the property owned or leased or the nature of the business
transacted by it makes such licensing or qualification necessary.
(o) A certificate of an officer of the Borrower confirming, in his
or her personal capacity, the representations and warranties set forth in
Article V.
(p) An opinion of counsel to the Borrower, addressed to the Lender.
(q) Certificates of the insurance required hereunder, with all
hazard insurance containing a lender's loss payable in the Lender's favor
and with all liability insurance naming the Lender as an additional
insured.
(r) A Validity Guaranty properly executed by the Validity Guarantor.
(s) Payment of the expenses incurred by the Lender through the
Funding Date and required to be paid by the Borrower under Section 9.6,
including legal expenses incurred through the date of this Agreement.
(t) Written authorization from the Borrower to pay proceeds of the
Advances to third parties.
(u) A payoff letter from Bank One, Wisconsin and any other party
holding a loan or capitalized lease of the Borrower which will be paid
with the proceeds of the initial Advances.
(v) Such other documents as the Lender in its sole discretion may
require.
Section 4.2. Conditions Precedent to All Advances. The Lender will not
consider any request for an Advance unless on such date:
(a) the representations and warranties contained in Article V are
correct on and as of the date of such Advance as though made on and as of
such date, except to the extent that such representations and warranties
relate solely to an earlier date; and
(b) no event has occurred and is continuing, or would result from
such Advance which constitutes a Default or an Event of Default.
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ARTICLE V
Representations and Warranties
The Borrower represents and warrants to the Lender as follows:
Section 5.1. Corporate Existence and Power; Name: Chief Executive Office;
Inventory and Equipment Locations; Tax Identification Number. The Borrower is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Colorado and is duly licensed or qualified to transact
business in all jurisdictions where the character of the property owned or
leased or the nature of the business transacted by it makes such licensing or
qualification necessary. The Borrower has all requisite power and authority,
corporate or otherwise, to conduct its business, to own its properties and to
execute and deliver, and to perform all of its obligations under, the Loan
Documents. During its existence, the Borrower has done business solely under the
names set forth in Schedule 5.1 hereto. The Borrower's chief executive office
and principal place of business is located at the address set forth in Schedule
5.1 hereto, and all of the Borrower's records relating to its business or the
Collateral are kept at that location. All Inventory and Equipment is located at
that location or at one of the other locations set forth in Schedule 5.1 hereto.
The Borrower's tax identification number is correctly set forth in Section 3.6
hereto.
Section 5.2. Authorization of Borrowing; No Conflict as to Law or
Agreements. The execution, delivery and performance by the Borrower of the Loan
Documents and the borrowings from time to time hereunder have been duly
authorized by all necessary corporate action and do not and will not (i) require
any consent or approval of the Borrower's stockholders; (ii) require any
authorization, consent or approval by, or registration, declaration or filing
with, or notice to, any governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any third party, except such
authorization, consent, approval, registration, declaration, filing or notice as
has been obtained, accomplished or given prior to the date hereof; (iii) violate
any provision of any law, rule or regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System) or of any
order, writ, injunction or decree presently in effect having applicability to
the Borrower or of the Borrower's articles of incorporation or bylaws; (iv)
result in a breach of or constitute a default under any indenture or loan or
credit agreement or any other material agreement, lease or instrument to which
the Borrower is a party or by which it or its properties may be bound or
affected; or (v) result in, or require, the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest or other charge or
encumbrance of any nature (other than the Security Interest) upon or with
respect to any of the properties now owned or hereafter acquired by the
Borrower.
Section 5.3. Legal Agreements. This Agreement constitutes and, upon due
execution by the Borrower, the other Loan Documents will constitute the legal,
valid and binding
19
obligations of the Borrower, enforceable against the Borrower in accordance with
their respective terms.
Section 5.4. Subsidiaries. The Borrower has no Subsidiaries.
Section 5.5. Financial Condition: No Adverse Change. The Borrower has
heretofore furnished to the Lender audited financial statements of the Borrower
for its fiscal year ended December 31, 1998 and internally prepared financial
statements of the Borrower for the fiscal period ended September 30, 1999 and
those statements fairly present the Borrower's financial condition on the dates
thereof and the results of its operations and cash flows for the periods then
ended and were prepared in accordance with generally accepted accounting
principles. Since the date of the most recent financial statements, there has
been no material adverse change in the Borrower's business, properties or
condition (financial or otherwise).
Section 5.6. Litigation. There are no actions, suits or proceedings
pending or, to the Borrower's knowledge, threatened against or affecting the
Borrower or any of its Affiliates or the properties of the Borrower or any of
its Affiliates before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, which, if determined
adversely to the Borrower or any of its Affiliates, would have a material
adverse effect on the financial condition, properties or operations of the
Borrower or any of its Affiliates.
Section 5.7. Regulation U. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System), and no part of the proceeds of any Advance will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
Section 5.8. Taxes. The Borrower and its Affiliates have paid or caused to
be paid to the proper authorities when due all federal, state and local taxes
required to be withheld by each of them. The Borrower and its Affiliates have
filed all federal, state and local tax returns which are required to be filed,
and the Borrower and its Affiliates have paid or caused to be paid to the
respective taxing authorities all taxes as shown on said returns or on any
assessment received by any of them to the extent such taxes have become due.
Section 5.9. Titles and Liens. The Borrower has good and absolute title to
all Collateral described in the collateral reports provided to the Lender and
all other Collateral, properties and assets reflected in the latest financial
statements referred to in Section 5.5 and all proceeds thereof, free and clear
of all mortgages, security interests, liens and encumbrances, except for
Permitted Liens. No financing statement naming the Borrower as debtor is on file
in any office except to perfect only Permitted Liens.
Section 5.10. Plans. Except as disclosed to the Lender in writing prior to
the date hereof, neither the Borrower nor any of its Affiliates maintains or has
maintained any Plan.
20
Neither the Borrower nor any Affiliate has received any notice or has any
knowledge to the effect that it is not in full compliance with any of the
requirements of ERISA. No Reportable Event or other fact or circumstance which
may have an adverse effect on the Plan's tax qualified status exists in
connection with any Plan. Neither the Borrower nor any of its Affiliates has:
(a) Any accumulated funding deficiency within the meaning of ERISA;
or
(b) Any liability or knows of any fact or circumstances which could
result in any liability to the Pension Benefit Guaranty Corporation, the
Internal Revenue Service, the Department of Labor or any participant in
connection with any Plan (other than accrued benefits which or which may
become payable to participants or beneficiaries of any such Plan).
Section 5.11. Default. The Borrower is in compliance with all provisions
of all agreements, instruments, decrees and orders to which it is a party or by
which it or its property is bound or affected, the breach or default of which
could have a material adverse effect on the Borrower's financial condition,
properties or operations.
Section 5.12. Environmental Matters.
(a) Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(i) "Environmental Law" means any federal, state, local or
other governmental statute, regulation, law or ordinance dealing
with the protection of human health and the environment.
(ii) "Hazardous Substances" means pollutants, contaminants,
hazardous substances, hazardous wastes, petroleum and fractions
thereof, and all other chemicals, wastes, substances and materials
listed in, regulated by or identified in any Environmental Law.
(b) To the Borrower's best knowledge, there are not present in, on
or under the Premises any Hazardous Substances in such form or quantity as
to create any liability or obligation for either the Borrower or the
Lender under common law of any jurisdiction or under any Environmental
Law, and no Hazardous Substances have ever been stored, buried, spilled,
leaked, discharged, emitted or released in, on or under the Premises in
such a way as to create any such liability.
(c) To the Borrower's best knowledge, the Borrower has not disposed
of Hazardous Substances in such a manner as to create any liability under
any Environmental Law.
(d) To the Borrower's best knowledge, there are not and there never
have been any requests, claims, notices, investigations, demands,
administrative
21
proceedings, hearings or litigation, relating in any way to the Premises
or the Borrower, alleging liability under, violation of, or noncompliance
with any Environmental Law or any license, permit or other authorization
issued pursuant. thereto. To the Borrower's best knowledge, no such matter
is threatened or impending.
(e) To the Borrower's best knowledge, the Borrower's businesses are
and have in the past always been conducted in accordance with all
Environmental Laws and all licenses, permits and other authorizations
required pursuant to any Environmental Law and necessary for the lawful
and efficient operation of such businesses are in the Borrower's
possession and are in full force and effect. No permit required under any
Environmental Law is scheduled to expire within twelve (12) months and
there is no threat that any such permit will be withdrawn, terminated,
limited or materially changed.
(f) To the Borrower's best knowledge, the Premises are not and never
have been listed on the National Priorities List, the Comprehensive
Environmental Response, Compensation and Liability Information System or
any similar federal, state or local list, schedule, log, inventory or
database.
(g) The Borrower has delivered to Lender all environmental
assessments, audits, reports, permits, licenses and other documents
describing or relating in any way to the Premises or Borrower's
businesses.
Section 5.13. Submissions to Lender. All financial and other information
provided to the Lender by or on behalf of the Borrower in connection with the
Borrower's request for the credit facilities contemplated hereby is true and
correct in all material respects and, as to projections, valuations or proforma
financial statements, present a good faith opinion as to such projections,
valuations and proforma condition and results.
Section 5.14. Financing Statements. The Borrower has provided to the
Lender signed financing statements sufficient when filed to perfect the Security
Interest and the other security interests created by the Security Documents.
When such financing statements are filed in the offices noted therein, the
Lender will have a valid and perfected security interest in all Collateral and
all other collateral described in the Security Documents which is capable of
being perfected by filing financing statements. None of the Collateral or other
collateral covered by the Security Documents is or will become a fixture on real
estate, unless a sufficient fixture filing is in effect with respect thereto.
Section 5.15. Rights to Payment. Each right to payment and each
instrument, document, chattel paper and other agreement constituting or
evidencing Collateral or other collateral covered by the Security Documents is
(or, in the case of all future Collateral or such other collateral, will be when
arising or issued) the valid, genuine and legally enforceable obligation,
subject to no defense, setoff or counterclaim, of the account debtor or
22
other obligor named therein or in the Borrower's records pertaining thereto as
being obligated to pay such obligation.
ARTICLE VI
Borrower's Affirmative Covenants
So long as the Obligations shall remain unpaid, or the Credit Facility
shall remain outstanding, the Borrower will comply with the following
requirements, unless the Lender shall otherwise consent in writing:
Section 6.1. Reporting Requirements. The Borrower will deliver, or cause
to be delivered, to the Lender each of the following, which shall be in form and
detail acceptable to the Lender:
(a) as soon as available, and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, the Borrower's audited
financial statements with the unqualified opinion of independent certified
public accountants selected by the Borrower and acceptable to the Lender,
which annual financial statements shall include the Borrower's balance
sheet as at the end of such fiscal year and the related statements of the
Borrower's income, retained earnings and cash flows for the fiscal year
then ended, prepared, if the Lender so requests, on a consolidating and
consolidated basis to include any Affiliates, all in reasonable detail and
prepared in accordance with GAAP, together with (i) copies of all
management letters prepared by such accountants; (ii) a report signed by
such accountants stating that in making the investigations necessary for
said opinion they obtained no knowledge, except as specifically stated, of
any Default or Event of Default hereunder and all relevant facts in
reasonable detail to evidence, and the computations as to, whether or not
the Borrower is in compliance with the requirements set forth in Sections
6.12, 6.13 and 7.10; and (iii) a certificate of an officer of the
Borrower, substantially in the form of Exhibit B, stating (A) that such
financial statements have been prepared in accordance with GAAP, (B)
whether or not such officer has knowledge of the occurrence of any Default
or Event of Default hereunder not theretofore reported and remedied and,
if so, stating in reasonable detail the facts with respect thereto, and
(c) all relevant facts in reasonable detail to evidence, and the
computations as to, whether the Borrower is in compliance with the
requirements set forth in Sections 6.12, 6.13 and 7.10;
(b) as soon as available and in any event within twenty (20) days
after the end of each month, an unaudited/internal balance sheet and
statements of income and retained earnings of the Borrower as at the end
of and for such month and for the year to date period then ended,
prepared, if the Lender so requests, on a consolidating and consolidated
basis to include any Affiliates, in reasonable detail and stating in
comparative form the figures for the corresponding date and periods in the
previous
23
year, all prepared in accordance with GAAP, subject to year end audit
adjustments; and accompanied by a certificate of an officer of the
Borrower, substantially in the form of Exhibit B hereto stating (i) that
such financial statements have been prepared in accordance with GAAP,
subject to year end audit adjustments, (ii) whether such officer has
knowledge of the occurrence of any Default or Event of Default hereunder
not theretofore reported and remedied and, if so, stating in reasonable
detail the facts with respect thereto, and (iii) all relevant facts in
reasonable detail to evidence, and the computations as to, whether the
Borrower is in compliance with the requirements set forth in Sections
6.12, 6.13 and 7.10;
(c) within ten (10) days after the end of each month or more
frequently if the Lender so requires, agings of the Borrower's accounts
receivable and its accounts payable, an inventory certification report,
and a calculation of the Borrower's Accounts, Eligible Accounts, Inventory
and Eligible Inventory as at the end of such month or shorter time period;
(d) at least thirty (30) days before the beginning of each fiscal
year of the Borrower, the projected balance sheets and income statements
for each month of such year, each in reasonable detail, representing the
Borrower's good faith projections and certified by the Borrower's chief
financial officer as being the most accurate projections available and
identical to the projections used by the Borrower for internal planning
purposes, together with such supporting schedules and information as the
Lender may in its discretion require;
(e) immediately after the commencement thereof, notice in writing of
all litigation and of all proceedings before any governmental or
regulatory agency affecting the Borrower of the type described in Section
5.12 or which seek a monetary recovery against the Borrower in excess of
Ten Thousand Dollars ($10,000);
(f) as promptly as practicable, and in any event not later than five
(5) business days after an officer of the Borrower obtains knowledge of
the occurrence of any breach, default or event of default under any
Security Document or any event which constitutes a Default or Event of
Default hereunder, notice of such occurrence, together with a detailed
statement by a responsible officer of the Borrower of the steps being
taken by the Borrower to cure the effect of such breach, default or event;
(g) as soon as possible and in any event within thirty (30) days
after the Borrower knows or has reason to know that any Reportable Event
with respect to any Plan has occurred, the statement of the Borrower's
chief financial officer setting forth details as to such Reportable Event
and the action which the Borrower proposes to take with respect thereto,
together with a copy of the notice of such Reportable Event to the Pension
Benefit Guaranty Corporation;
24
(h) as soon as possible, and in any event within ten (10) days after
the Borrower fails to make any quarterly contribution required with
respect to any Plan under Section 412(m) of the Internal Revenue Code of
1986, as amended, the statement of the Borrower's chief financial officer
setting forth details as to such failure and the action which the Borrower
proposes to take with respect thereto, together with a copy of any notice
of such failure required to be provided to the Pension Benefit Guaranty
Corporation;
(i) promptly upon knowledge thereof, notice of (i) any disputes or
claims by the Borrower's customers exceeding Ten Thousand Dollars
($10,000) individually; (ii) credit memos; (iii) any goods returned to or
recovered by the Borrower; and (iv) any change in the persons constituting
the Borrower's officers and directors;
(j) promptly upon knowledge thereof, notice of any loss of or
material damage to any Collateral or other collateral covered by the
Security Documents or of any substantial adverse change in any Collateral
or such other collateral or the prospect of payment thereof;
(k) promptly upon their distribution, copies of all financial
statements, reports and proxy statements which the Borrower shall have
sent to its stockholders;
(l) promptly after the sending or filing thereof, copies of all
regular and periodic reports which the Borrower shall file with the
Securities and Exchange Commission or any national securities exchange;
(in) annually by no later than the anniversary of the previous
statement provided to the Lender an updated personal financial statement
of the Validity Guarantor and, upon request by the Lender, copies of the
state and federal tax returns and all schedules thereto of the Validity
Guarantor;
(n) promptly upon knowledge thereof, notice of the Borrower's
violation of any law, rule or regulation, the non-compliance with which
could materially and adversely affect the Borrower's business or its
financial condition; and
(o) from time to time, with reasonable promptness, any and all
receivables schedules, collection reports, deposit records, equipment
schedules, copies of invoices to account debtors, shipment documents and
delivery receipts for goods sold, and such other material, reports,
records or information as the Lender may request.
Section 6.2. Books and Records: Inspection and Examination. The Borrower
will keep accurate books of record and account for itself pertaining to the
Collateral and pertaining to the Borrower's business and financial condition and
such other matters as the Lender may from time to time request in which true and
complete entries will be made in accordance with GAAP and, upon the Lender's
request, will permit any officer, employee,
25
attorney or accountant for the Lender to audit, review, make extracts from or
copy any and all corporate and financial books and records of the Borrower at
all times during ordinary business hours, to send and discuss with account
debtors and other obligors requests for. verification of amounts owed to the
Borrower, and to discuss the Borrower's affairs with any of its directors,
officers, employees or agents. The Borrower will permit the Lender, or its
employees, accountants, attorneys or agents, to examine and inspect any
Collateral, other collateral covered by the Security Documents or any other
property of the Borrower at any time during ordinary business hours.
Section 6.3. Account Verification. The Lender may at any time and from
time to time send or require the Borrower to send requests for verification of
accounts or notices of assignment to account debtors and other obligors. The
Lender may also at any time and from time to time telephone account debtors and
other obligors to verify accounts.
Section 6.4. Compliance with Laws.
(a) The Borrower will (i) comply with the requirements of applicable
laws and regulations, the non-compliance with which would materially and
adversely affect its business or its financial condition and (ii) use and
keep the Collateral, and require that others use and keep the Collateral,
only for lawful purposes, without violation of any federal, state or local
law, statute or ordinance.
(b) Without limiting the foregoing undertakings, the Borrower
specifically agrees that it will comply with all applicable Environmental
Laws and obtain and comply with all permits, licenses and similar
approvals required by any Environmental Laws, and will not generate, use,
transport, treat, store or dispose of any Hazardous Substances in such a
manner as to create any liability or obligation under the common law of
any jurisdiction or any Environmental Law.
Section 6.5. Payment of Taxes and Other Claims. The Borrower will
pay or discharge, when due, (i) all taxes, assessments and governmental
charges levied or imposed upon it or upon its income or profits, upon any
properties belonging to it (including, without limitation, the Collateral)
or upon or against the creation, perfection or continuance of the Security
Interest, prior to the date on which penalties attach thereto, (ii) all
federal, state and local taxes required to be withheld by it, and (iii)
all lawful claims for labor, materials and supplies which, if unpaid,
might by law become a lien or charge upon any properties of the Borrower;
provided, that the Borrower shall not be required to pay any such tax,
assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
proper reserves have been made.
Section 6.6. Maintenance of Properties.
(a) The Borrower will keep and maintain the Collateral, the other
collateral covered by the Security Documents and all of its other
properties necessary or useful
26
in its business in good condition, repair and working order (normal wear
and tear excepted) and will from time to time replace or repair any worn,
defective or broken parts; provided, however, that nothing in this Section
6.6 shall prevent the Borrower from discontinuing the operation and
maintenance of any of its properties if such discontinuance is, in the
Lender's judgment, desirable in the conduct of the Borrower's business and
not disadvantageous in any material respect to the Lender.
(b) The Borrower will defend the Collateral against all claims or
demands of all persons (other than the Lender) claiming the Collateral or
any interest therein.
(c) The Borrower will keep all Collateral and other collateral
covered by the Security Documents free and clear of all security
interests, liens and encumbrances except Permitted Liens.
Section 6.7. Insurance. The Borrower will obtain and at all times maintain
insurance with insurers believed by the Borrower to be responsible and
reputable, in such amounts and against such risks as may from time to time be
required by the Lender, but in all events in such amounts and against such risks
as is usually carried by companies engaged in similar business and owning
similar properties in the same general areas in which the Borrower operates.
Without limiting the generality of the foregoing, the Borrower will at all times
maintain business interruption insurance including coverage for force majeure
and keep all tangible Collateral insured against risks of fire (including
so-called extended coverage), theft, collision (for Collateral consisting of
motor vehicles) and such other risks and in such amounts as the Lender may
reasonably request, with any loss payable to the Lender to the extent of its
interest, and all policies of such insurance shall contain a lender's loss
payable endorsement for the Lender's benefit acceptable to the Lender. All
policies of liability insurance required hereunder shall name the Lender as an
additional insured.
Section 6.8. Preservation of Existence. The Borrower will preserve and
maintain its existence and all of its rights, privileges and franchises
necessary or desirable in the normal conduct of its business and shall conduct
its business in an orderly, efficient and regular manner.
Section 6.9. Delivery of Instruments. etc. Upon request by the Lender, the
Borrower will promptly deliver to the Lender in pledge all instruments,
documents and chattel papers constituting Collateral, duly endorsed or assigned
by the Borrower.
Section 6.10. Collateral Account.
(a) If, notwithstanding the instructions to debtors to make payments
to the Lockbox, the Borrower receives any payments on Receivables or other
proceeds of the Collateral, the Borrower shall deposit such payments or
proceeds into the Collateral Account. Until so deposited, the Borrower
shall hold all such payments
27
and proceeds in trust for and as the property of the Lender and shall not
commingle such payments with any of its other funds or property.
(b) Amounts deposited in the Collateral Account shall not bear
interest and shall not be subject to withdrawal by the Borrower, except
after full payment and discharge of all Obligations.
(c) All deposits in the Collateral Account shall constitute proceeds
of Collateral and shall not constitute payment of the Obligations. The
Lender from time to time at its discretion may, after allowing two (2)
Banking Days, apply deposited funds in the Collateral Account to the
payment of the Obligations, in any order or manner of application
satisfactory to the Lender, by transferring such funds to the Lender's
general account.
(d) All items deposited in the Collateral Account shall be subject
to final payment. If any such item is returned uncollected, the Borrower
will immediately pay the Lender, or, for items deposited in the Collateral
Account, the bank maintaining such account, the amount of that item, or
such bank at its discretion may charge any uncollected item to the
Borrower's commercial account or other account. The Borrower shall be
liable as an endorser on all items deposited in the Collateral Account,
whether or not in fact endorsed by the Borrower.
Section 6.11. Performance by the Lender. If the Borrower at any time fails
to perform or observe any of the foregoing covenants contained in this Article
VI or elsewhere herein, and if such failure shall continue for a period of ten
(10) calendar days after the Lender gives the Borrower written notice thereof
(or in the case of the agreements contained in Sections 6.5, 6.7 and 6.10,
immediately upon the occurrence of such failure, without notice or lapse of
time), the Lender may, but need not, perform or observe such covenant on behalf
and in the name, place and stead of the Borrower (or, at the Lender's option, in
the Lender's name) and may, but need not, take any and all other actions which
the Lender may reasonably deem necessary to cure or correct such failure
(including, without limitation, the payment of taxes, the satisfaction of
security interests, liens or encumbrances, the performance of obligations owed
to account debtors or other obligors, the procurement and maintenance of
insurance, the execution of assignments, security agreements and financing
statements, and the endorsement of instruments); and the Borrower shall
thereupon pay to the Lender on demand the amount of all monies expended and all
costs and expenses (including reasonable attorneys' fees and legal expenses)
incurred by the Lender in connection with or as a result of the performance or
observance of such agreements or the taking of such action by the Lender,
together with interest thereon from the date expended or incurred at the
Floating Rate. To facilitate the Lender's performance or observance of such
covenants of the Borrower, the Borrower hereby irrevocably appoints the Lender,
or the Lender's delegate, acting alone, as the Borrower's attorney in fact
(which appointment is coupled with an interest) with the right (but not the
duty) from time to time to create, prepare, complete, execute, deliver, endorse
or file in the name and on behalf of the Borrower any and all
28
instruments, documents, assignments, security agreements, financing statements,
applications for insurance and other agreements and writings required to be
obtained, executed, delivered or endorsed by the Borrower under this Section
6.11.
Section 6.12. Minimum Book Net Worth. While any part of the Obligations
remains unpaid, the Borrower shall, unless waived in writing by Lender,
continuously maintain:
(a) as of the Funding Date, a minimum Book Net Worth of not less
than Fifty Thousand Dollars ($50,000);
(b) thereafter, through December 30, 1999, a minimum Book Net Worth
of not less than the Book Net Worth as of the Funding Date;
(c) as of December 31, 1999 and each December 31 thereafter, a
minimum Book Net Worth of not less than the Book Net Worth as of the
immediately preceding September 30 plus One Hundred Thousand Dollars
($100,000);
(d) thereafter, for each period from January 1 through March 30, a
minimum Book Net Worth of not less than the Book Net Worth as of the
immediately preceding fiscal year end;
(e) as of March 31, 2000 and each March 31 thereafter, a minimum
Book Net Worth of not less than the Book Net Worth as of the end of the
immediately preceding December 31 plus One Hundred Thousand Dollars
($100,000);
(f) thereafter, for each period from April 1 through June 29, a
minimum Book Net Worth of not less than the Book Net Worth as of the
immediately preceding March 31;
(g) as of June 30, 2000 and each June 30 thereafter, a minimum Book
Net Worth of not less than the Book Net Worth as of the end of the
immediately preceding March 31 plus One Hundred Thousand Dollars
($100,000);
(h) thereafter, for each period from July 1 through September 29, a
minimum Book Net Worth of not less than the Book Net Worth as of the
immediately preceding June 30;
(i) as of September 30, 2000 and each September 30 thereafter, a
minimum Book Net Worth of not less than the Book Net Worth as of the end
of the immediately preceding June 30 plus One Hundred Thousand Dollars
($100,000);
(i) thereafter, for each period from October 1 through December 30,
a minimum Book Net Worth of not less than the Book Net Worth as of the
immediately preceding September 30; and
29
(k) as of December 31, 2000 and each December 31 thereafter, a
minimum Book Net Worth of not less than both (i) the Book Net Worth as of
the immediately preceding September 30 plus One Hundred Thousand Dollars
($100,000) and (ii) the Book Net Worth as of the prior fiscal year end
plus Five Hundred Thousand Dollars ($500,000).
Section 6.13. Minimum Net Earnings. The Borrower will achieve (a) during
the fiscal year ended December 31, 2000 and each fiscal year thereafter Net
Earnings of not less than Five Hundred Thousand Dollars ($500,000), as
demonstrated on the audited year end financial statements of Borrower, and (b)
during each three (3) month fiscal period ending on each March 31, June 30,
September 30 and December 31 during the term hereof; Net Earnings of not less
than One Hundred Thousand Dollars ($100,000).
ARTICLE VII
Negative Covenants
So long as the Obligations shall remain unpaid, or the Credit Facility
shall remain outstanding, the Borrower agrees that, without the Lender's prior
written consent:
Section 7.1. Liens. The Borrower will not create, incur or suffer to exist
any mortgage, deed of trust, pledge, lien, security interest, assignment or
transfer upon or of any of its assets, now owned or hereafter acquired, to
secure any indebtedness; excluding, however, from the operation of the
foregoing, the following (collectively, "Permitted Liens"):
(a) in the case of any of the Borrower's property which is not
Collateral or other collateral described in the Security Documents,
covenants, restrictions, rights, easements and minor irregularities in
title which do not materially interfere with the Borrower's business or
operations as presently conducted;
(b) mortgages, deeds of trust, pledges, liens, security interests
and assignments in existence on the date hereof and listed in Schedule 7.1
hereto, securing indebtedness for borrowed money permitted under Section
7.2;
(c) the Security Interest and liens and security interests created
by the Security Documents;
(d) purchase money security interests relating to the acquisition of
machinery and equipment of the Borrower not exceeding the lesser of cost
or fair market value thereof and so long as no Default Period is then in
existence and none would exist immediately after such acquisition; and
30
(e) liens and security interests in favor of International Financial
Services Corporation to the extent such liens remain subject to the
provisions of the Intercreditor Agreement.
Section 7.2. Indebtedness. The Borrower will not incur, create, assume or
permit to exist any indebtedness or liability on account of deposits or advances
or any indebtedness for borrowed money or letters of credit issued on the
Borrower's behalf or any other indebtedness or liability evidenced by notes,
bonds, debentures or similar obligations, except:
(a) indebtedness arising hereunder;
(b) indebtedness of the Borrower in existence on the date hereof and
listed in Schedule 7.2 hereto;
(c) indebtedness relating to liens permitted in accordance with
Section 7.1; and
(d) indebtedness to Xxxx 0. Xxxxx and Xxxxxx X. Xxxxxx so long as
such indebtedness remains subordinate to the Obligations in accordance
with the provisions of the Subordination Agreements.
Section 7.3. Guaranties. The Borrower will not assume, guarantee, endorse
or otherwise become directly or contingently liable in connection with any
obligations of any other Person, except:
(a) the endorsement of negotiable instruments by the Borrower for
deposit or collection or similar transactions in the ordinary course of
business; and
(b) guaranties, endorsements and other direct or contingent
liabilities in connection with the obligations of other Persons, in
existence on the date hereof and listed in Schedule 7.2 hereto.
Section 7.4. Investments and Subsidiaries.
(a) The Borrower will not purchase or hold beneficially any stock or
other securities or evidences of indebtedness of, make or permit to exist
any loans or advances to, or make any investment or acquire any interest
whatsoever in, any other Person, including, specifically, but without
limitation, any partnership or joint venture, except:
(i) investments in direct obligations of the United States of
America or any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America having a maturity of one year or less, commercial paper
issued by United States of America corporations rated "A-1" or
"A-2" by Standard & Poor's Corporation or "P-1"
31
or "P-2" by Xxxxx'x Investors Service or certificates of deposit or
bankers' acceptances having a maturity of one year or less issued by
members of the Federal Reserve System having deposits in excess of
One Hundred Million Dollars ($100,000,000) (which certificates of
deposit or bankers' acceptances are fully insured by the Federal
Deposit Insurance Corporation); and
(ii) travel advances or loans to the Borrower's officers and
employees not exceeding at any one time an aggregate of Ten Thousand
Dollars ($10,000).
(b) The Borrower will not create or permit to exist any Subsidiary.
Section 7.5. Dividends. The Borrower will not declare or pay any dividends
(other than dividends payable solely in stock of the Borrower) on any class of
its stock or make any payment on account of the purchase, redemption or other
retirement of any shares of such stock or make any distribution in respect
thereof, either directly or indirectly.
Section 7.6. Sale or Transfer of Assets: Suspension of Business
Operations. The Borrower will not sell, lease, assign, transfer or otherwise
dispose of (i) the stock of any Subsidiary, (ii) all or a substantial part of
its assets, or (iii) any Collateral or any interest therein (whether in one
transaction or in a series of transactions) to any other Person other than the
sale of Inventory in the ordinary course of business and will not liquidate,
dissolve or suspend business operations. The Borrower will not in any manner
transfer any property without prior or present receipt of full and adequate
consideration.
Section 7.7. Consolidation and Merger: Asset Acquisitions. The Borrower
will not consolidate with or merge into any Person, or permit any other Person
to merge into it, or acquire (in a transaction analogous in purpose or effect to
a consolidation or merger) all or substantially all the assets of any other
Person.
Section 7.8. Sale and Leaseback. The Borrower will not enter into any
arrangement, directly or indirectly, with any other Person whereby the Borrower
shall sell or transfer any real or personal property, whether now owned or
hereafter acquired, and then or thereafter rent or lease as lessee such property
or any part thereof or any other property which the Borrower intends to use for
substantially the same purpose or purposes as the property being sold or
transferred.
Section 7.9. Restrictions on Nature of Business. The Borrower will not
engage in any line of business materially different from that presently engaged
in by the Borrower and will not purchase, lease or otherwise acquire assets not
related to its business.
Section 7.10. Capital Expenditures. The Borrower will not incur or
contract to incur (a) Capital Expenditures of more than Three Million Three
Hundred Thousand Dollars ($3,300,000) in the aggregate for the period from the
Funding Date through December 31, 2000; provided, however, that during such
period not more than Two Hundred Fifty
32
Thousand Dollars ($250,000) of such expenditures may be made out of the
Borrower's working capital, and (b) Capital Expenditures of more than One
Hundred Thousand Dollars ($100,000) in the aggregate during any fiscal year
ending on or after December 31, 2001.
Section 7.11. Accounting. The Borrower will not adopt any material change
in accounting principles other than as required by GAAP. The Borrower will not
adopt. permit or consent to any change in its fiscal year.
Section 7.12. Discounts. etc. The Borrower will not, after notice from the
Lender, grant any discount, credit or allowance to any customer of the Borrower
or accept any return of goods sold, or at any time (whether before or after
notice from the Lender) modify, amend, subordinate, cancel or terminate the
obligation of any account debtor or other obligor of the Borrower.
Section 7.13. Defined Benefit Pension Plans. The Borrower will not adopt,
create, assume or become a party to any defined benefit pension plan, unless
disclosed to the Lender pursuant to Section 5.10.
Section 7.14. Other Defaults. The Borrower will not permit any breach,
default or event of default to occur under any note, loan agreement, indenture,
lease, mortgage, contract for deed, security agreement or other contractual
obligation binding upon the Borrower.
Section 7.15. Place of Business: Name. The Borrower will not transfer its
chief executive office or principal place of business, or move, relocate, close
or sell any business location. The Borrower will not permit any tangible
Collateral or any records pertaining to the Collateral to be located in any
state or area in which, in the event of such location, a financing statement
covering such Collateral would be required to be, but has not in fact been,
filed in order to perfect the Security Interest. The Borrower will not change
its name.
Section 7.16. Organizational Documents. The Borrower will not amend its
certificate of incorporation, articles of incorporation or bylaws.
Section 7.17. Salaries: Management Fees. The Borrower will not pay
excessive or unreasonable salaries, bonuses, commissions, consultant fees or
other compensation; or increase the salary, bonus, commissions, consultant fees
or other compensation of any director, officer or consultant, or any member of
their families, by more than ten percent (10%) in any one year, either
individually or for all such persons in the aggregate, or pay any such increase
from any source other than profits earned in the year of payment.
Section 7.18. Change in Ownership. The Borrower will not issue or sell any
stock of the Borrower or permit or suffer to occur the sale, transfer,
assignment, pledge or other disposition of any or all of the issued and
outstanding shares of stock of the Borrower to the extent any such issuance,
sale or other transfer would result in (i) Xxxxxx Reissue owning less than five
percent (5%) of the voting stock of the Borrower, (ii) Xxxxxx Scenic owning less
33
than twenty percent (20%) of the voting stock of the Borrower, or (iii) any
other party owning more than fifteen percent (15%) of the voting stock of the
Borrower. The Lender agrees to review and consider changes to this Section 7.18
upon request of the Borrower in connection with any renewal of the Credit
Facility beyond the Original Maturity Date.
ARTICLE VIII
Events of Default, Rights and Remedies
Section 8.1. Events of Default. Notwithstanding that the Lender may demand
immediate payment of the Obligations at any time, whether or not a Default
Period then exists, and without waiving or limiting in any respect the Lender's
right to so demand payment of the Obligations at any time, this Agreement sets
forth a non-exclusive list of certain critical events after the occurrence of
which the Lender expects that it would demand immediate payment of the
Obligations and exercise its remedies. "Event of Default," wherever used herein,
means any one of the following events:
(a) Default in the payment of the Obligations on demand or on any
portion of the Obligations that otherwise becomes due and payable;
(b) Default in the payment of any fees, commissions, costs or
expenses required to be paid by the Borrower under this Agreement;
(c) Default in the performance, or breach, of any covenant or
agreement of the Borrower contained in this Agreement;
(d) The Borrower or the Validity Guarantor shall be or become
insolvent, or admit in writing its or his inability to pay its or his
debts as they mature, or make an assignment for the benefit of creditors;
or the Borrower or the Validity Guarantor shall apply for or consent to
the appointment of any receiver, trustee, or similar officer for it or him
or for all or any substantial part of its or his property; or such
receiver, trustee or similar officer shall be appointed without the
application or consent of the Borrower or the Validity Guarantor, as the
case may be; or the Borrower or the Validity Guarantor shall institute (by
petition, application, answer, consent or otherwise) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt,
dissolution, liquidation or similar proceeding relating to it or him under
the laws of any jurisdiction; or any such proceeding shall be instituted
(by petition, application or otherwise) against the Borrower or the
Validity Guarantor; or any judgment, writ, warrant of attachment or
execution or similar process shall be issued or levied against a
substantial part of the property of the Borrower or the Validity
Guarantor;
(e) A petition shall be filed by or against the Borrower or the
Validity Guarantor under the United States Bankruptcy Code naming the
Borrower or the Validity Guarantor as debtor;
34
(f) Any representation or warranty made by the Borrower in this
Agreement, by the Validity Guarantor in any guaranty delivered to the
Lender, or by the Borrower (or any of its officers) or the Validity
Guarantor in any agreement, certificate, instrument or financial statement
or other statement contemplated by or made or delivered pursuant to or in
connection with this Agreement or any such guaranty shall prove to have
been incorrect in any material respect when deemed to be effective;
(g) The rendering against the Borrower of a final judgment, decree
or order for the payment of money in excess of Ten Thousand Dollars
($10,000) and the continuance of such judgment, decree or order
unsatisfied and in effect for any period of thirty (30) consecutive days
without a stay of execution;
(h) A default under any bond, debenture, note or other evidence of
indebtedness of the Borrower owed to any Person other than the Lender, or
under any indenture or other instrument under which any such evidence of
indebtedness has been issued or by which it is governed, or under any
lease of any of the Premises, and the expiration of the applicable period
of grace, if any, specified in such evidence of indebtedness, indenture,
other instrument or lease;
(i) Any Reportable Event, which the Lender determines in good faith
might constitute grounds for the termination of any Plan or for the
appointment by the appropriate United States District Court of a trustee
to administer any Plan, shall have occurred and be continuing thirty (30)
days after written notice to such effect shall have been given to the
Borrower by the Lender; or a trustee shall have been appointed by an
appropriate United States District Court to administer any Plan; or the
Pension Benefit Guaranty Corporation shall have instituted proceedings to
terminate any Plan or to appoint a trustee to administer any Plan; or the
Borrower shall have filed for a distress termination of any Plan under
Title IV of ERISA; or the Borrower shall have failed to make any quarterly
contribution required with respect to any Plan under Section 412(m) of the
Internal Revenue Code of 1986, as amended, which the Lender determines in
good faith may by itself, or in combination with any such failures that
the Lender may determine are likely to occur in the future, result in the
imposition of a lien on the Borrower's assets in favor of the Plan;
(j) An event of default shall occur under any Security Document or
under any other security agreement, mortgage, deed of trust, assignment or
other instrument or agreement securing any obligations of the Borrower
hereunder or under any note;
(k) The Borrower shall liquidate, dissolve, terminate or suspend its
business operations or otherwise fail to operate its business in the
ordinary course, or sell all or substantially all of its assets, without
the Lender's prior written consent;
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(l) The Borrower shall fail to pay, withhold, collect or remit any
tax or tax deficiency when assessed or due (other than any tax deficiency
which is being contested in good faith and by proper proceedings and for
which it shall have set aside on its books adequate reserves therefor) or
notice of any state or federal tax liens shall be filed or issued;
(m) Default in the payment of any amount owed by the Borrower to the
Lender other than any indebtedness arising hereunder;
(n) The Borrower shall take or participate in any action which would
be prohibited under the provisions of any of the Subordination Agreements.
(o) The Validity Guarantor shall repudiate, purport to revoke or
fail to perform his obligations under his guaranty in favor of the Lender,
or shall die;
(p) Any event or circumstance with respect to the Borrower shall
occur such that the Lender shall believe in good faith that the prospect
of payment of all or any part of the Obligations or the performance by the
Borrower under the Loan Documents is impaired or any material adverse
change in the business or financial condition of the Borrower shall occur;
or
(q) Any breach, default or event of default by or attributable to
any Affiliate under any agreement between such Affiliate and the Lender.
Section 8.2. Rights and Remedies. As provided in Section 2.6, the Lender
may, at any time, refuse to make any requested Advance, demand payment of the
Advances or terminate the Credit Facility, whether or not a Default Period then
exists. In addition, during any Default Period, the Lender may exercise any or
all of the following rights and remedies:
(a) the Lender may, by notice to the Borrower, declare the
Obligations to be forthwith due and payable, whereupon all Obligations
shall become and be forthwith due and payable, without presentment, notice
of dishonor, protest or further notice of any kind, all of which the
Borrower hereby expressly waives;
(b) the Lender may, without notice to the Borrower and without
further action, apply any and all money owing by the Lender to the
Borrower to the payment of the Obligations;
(c) the Lender may exercise and enforce any and all rights and
remedies available upon default to a secured party under the UCC,
including, without limitation, the right to take possession of Collateral,
or any evidence thereof, proceeding without judicial process or by
judicial process (without a prior hearing or notice thereof, which the
Borrower hereby expressly waives) and the right to sell, lease or
otherwise dispose of any or all of the Collateral, and, in connection
therewith, the Borrower will on demand assemble the Collateral and make it
available to the
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Lender at a place to be designated by the Lender which is reasonably
convenient to both parties;
(d) the Lender may exercise and enforce its rights and remedies
under the Loan Documents; and
(e) the Lender may exercise any other rights and remedies available
to it by law or agreement.
Notwithstanding the foregoing, upon the occurrence of an Event of Default
described in subsections (d) or (e) of Section 8.1, the Obligations shall be
immediately due and payable automatically without presentment, demand, protest
or notice of any kind.
Section 8.3. Certain Notices. If notice to the Borrower of any
intended disposition of Collateral or any other intended action is required by
law in a particular instance, such notice shall be deemed commercially
reasonable if given (in the manner specified in Section 9.3) at least ten (10)
calendar days before the date of intended disposition or other action.
ARTICLE IX
Miscellaneous
Section 9.1. No Waiver: Cumulative Remedies. No failure or delay by the
Lender in exercising any right, power or remedy under the Loan Documents shall
operate as a waiver thereof, nor shall any, single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy under the Loan Documents. The
remedies provided in the Loan Documents are cumulative and not exclusive of any
remedies provided by law.
Section 9.2. Amendments. Etc. No amendment, modification, termination or
waiver of any provision of any Loan Document or consent to any departure by the
Borrower therefrom or any release of a Security Interest shall be effective
unless the same shall be in writing and signed by the Lender, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on the Borrower in any
case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
Section 9.3. Addresses for Notices. Etc. Except as otherwise expressly
provided herein, all notices, requests, demands and other communications
provided for under the Loan Documents shall be in writing and shall be (a)
personally delivered, (b) sent by first class United States mail, (c) sent by
overnight courier of national reputation, or (d) transmitted by facsimile, in
each case addressed or facsimiled to the party to whom notice is being given at
its address or facsimile number as set forth below:
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If to the Borrower: With a copy to:
RMED International, Inc. Xxxxxx Xxxxx
0000 Xxxxx Xxxxxxxx Xxx Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxxxxxxx 00000-0000 00 Xxxxxxxxx Xxxxxx
Facsimile: 715/831-0291 Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx Facsimile: 203/221-7905
If to the Lender:
Xxxxx Fargo Business Credit, Inc.
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
MAC N9811-143
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: 414/224/7439
Attention: Xxxx X. Xxxxxxx
or, as to each party, at such other address or facsimile number as may hereafter
be designated by such party in a written notice to the other party complying as
to delivery with the terms of this Section. All such notices, requests, demands
and other communications shall be deemed to have been given on (a) the date
received if personally delivered, (b) when deposited in the mail if delivered by
mail, (c) the date sent if sent by overnight courier, or (d) the date of
transmission if delivered by facsimile, except that notices or requests to the
Lender pursuant to any of the provisions of Article II shall not be effective
until received by the Lender.
Section 9.4. Further Documents. The Borrower will from time to time
execute and deliver or endorse any and all instruments, documents, conveyances,
assignments, security agreements, financing statements and other agreements and
writings that the Lender may reasonably request in order to secure, protect,
perfect or enforce the Security Interest or the Lender's rights under the Loan
Documents (but any failure to request or assure that the Borrower executes,
delivers or endorses any such item shall not affect or impair the validity,
sufficiency or enforceability of the Loan Documents and the Security Interest,
regardless of whether any such item was or was not executed, delivered or
endorsed in a similar context or on a prior occasion).
Section 9.5. Collateral. This Agreement does not contemplate a sale of
accounts, contract rights or chattel paper, and, as provided by law, the
Borrower is entitled to any surplus and shall remain liable for any deficiency.
The Lender's duty of care with respect to Collateral in its possession (as
imposed by law) shall be deemed fulfilled if it exercises reasonable care in
physically keeping such Collateral, or in the case of Collateral in the custody
or possession of a bailee or other third person, exercises reasonable care in
the selection of the bailee or other third person, and the Lender need not
otherwise preserve,
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protect, insure or care for any Collateral. The Lender shall not be obligated to
preserve any rights the Borrower may have against prior parties, to realize on
the Collateral at all or in any particular manner or order or to apply any cash
proceeds of the Collateral in any particular order of application.
Section 9.6. Costs and Expenses. The Borrower agrees to pay on demand all
costs and expenses, including, without limitation, reasonable attorney's fees,
periodic UCC, tax and judgment lien searches, incurred by the Lender in
connection with the Obligations, this Agreement, the Loan Documents and any
other agreement related hereto or thereto, and the transactions contemplated
hereby, including, without limitation, all such costs, expenses and fees
incurred in connection with the negotiation, preparation, execution, amendment,
administration, performance, collection and enforcement of the Obligations and
all such documents and agreements and the creation, perfection, protection,
satisfaction, foreclosure or enforcement of the Security Interest.
Section 9.7. Indemnity. In addition to the payment of expenses pursuant to
Section 9.6, the Borrower agrees to indemnify, defend and hold harmless the
Lender, and any of its participants, parent corporations, subsidiary
corporations, affiliated corporations, successor corporations, and all present
and future officers, directors, employees, attorneys and agents of the foregoing
(the "Indemnitees") from and against any of the following (collectively,
"Indemnified Liabilities"):
(i) any and all transfer taxes, documentary taxes, assessments or
charges made by any governmental authority by reason of the execution and
delivery of the Loan Documents or the making of the Advances;
(ii) any claims, loss or damage to which any Indemnitee may be
subjected if any representation or warranty contained in Section 5.12
proves to be incorrect in any respect or as a result of any violation of
the covenant contained in Section 6.4(b); and
(iii) any and all other liabilities, losses, damages, penalties,
judgments, suits, claims, costs and expenses of any kind or nature
whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel) in connection with the foregoing and any other
investigative, administrative or judicial proceedings, whether or not such
Indemnitee shall be designated a party thereto, which may be imposed on,
incurred by or asserted against any such Indemnitee, in any manner related
to or arising out of or in connection with the making of the Advances and
the Loan Documents or the use or intended use of the proceeds of the
Advances.
If any investigative, judicial or administrative proceeding arising from any of
the foregoing is brought against any Indemnitee, upon such Indemnitee's request,
the Borrower, or counsel designated by the Borrower and satisfactory to the
Indemnitee, will resist and defend such
39
action, suit or proceeding to the extent and in the manner directed by the
Indemnitee, at the Borrower's sole costs and expense. Each Indemnitee will use
its best efforts to cooperate in the defense of any such action, suit or
proceeding. If the foregoing undertaking to indemnify, defend and hold harmless
may be held to be unenforceable because it violates any law or public policy,
the Borrower shall nevertheless make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The Borrower's obligation under this Section 9.7 shall survive
the termination of this Agreement and the discharge of the Borrower's other
obligations hereunder.
Section 9.8. Participants. The Lender and its participants, if any, are
not partners or joint venturers, and the Lender shall not have any liability or
responsibility for any obligation, act or omission of any of its participants.
All rights and powers specifically conferred upon the Lender may be transferred
or delegated to any of the Lender's participants, successors or assigns.
Section 9.9. Execution in Counterparts. This Agreement and other Loan
Documents may be executed in any number of counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same instrument.
Section 9.10. Binding Effect: Assignment: Complete Agreement: Exchanging
Information. The Loan Documents shall be binding upon and inure to the benefit
of the Borrower and the Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights
thereunder or any interest therein without the Lender's prior written consent.
This Agreement, together with the Loan Documents, comprises the complete and
integrated agreement of the parties on the subject matter hereof and supersedes
all prior agreements, written or oral, on the subject matter hereof Without
limiting the Lender's right to share information regarding the Borrower and its
Affiliates with the Lender's participants, accountants, lawyers and other
advisors, the Lender, Xxxxx Fargo & Company, and all direct and indirect
subsidiaries of Xxxxx Fargo & Company, may exchange any and all information they
may have in their possession regarding the Borrower and its Affiliates, and the
Borrower waives any right of confidentiality it may have with respect to such
exchange of such information.
Section 9.11. Severability of Provisions. Any provision of this Agreement
which is prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof
Section 9.12. Headings. Article and Section headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
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Section 9.13. Governing Law: Jurisdiction. Venue; Waiver of Jury Trial.
The Loan Documents shall be governed by and construed in accordance with the
substantive laws (other than conflict laws) of the State of Wisconsin. This
Agreement shall be governed by and construed in accordance with the substantive
laws (other than conflict laws) of the State of Wisconsin. The parties hereto
hereby (i) consents to the personal jurisdiction of the state and federal courts
located in the State of Wisconsin in connection with any controversy related to
this Agreement; (ii) waives any argument that venue in any such forum is not
convenient, (iii) agrees that any litigation initiated by the Lender or the
Borrower in connection with this Agreement or the other Loan Documents shall be
venued in either the Circuit Court of Milwaukee County, Wisconsin, or the United
States District Court, Eastern District of Wisconsin; and (iv) agrees that a
final judgment in any such suit, action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
THE PARTIES WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED ON OR PERTAINING TO THIS AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first above written.
RMED INTERNATIONAL, INC. XXXXX FARGO BUSINESS CREDIT, INC.
By: By: /s/ Xxxx X. Xxxxxxx
-------------------------- ---------------------------
Its: President Its: Vice-President
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