1
EXHIBIT 10.5(b)
---------------
LOAN AGREEMENT
--------------
THIS AGREEMENT made as of the 1st day of October, 1990 by and between
Ekco Group, Inc. (the "Company") and Xxxx X. Xxxxxx ("Trustee") as Trustee of
the Ekco Group, Inc. Employee Stock Ownership Plan (the "Plan").
WHEREAS, the Board of Directors of the Company (the "Board") has
authorized the Trustee to acquire up to one million (1,000,000) shares of the
Company's common stock ("Shares") for the Plan, and has further authorized the
Company to lend funds to the Trustee to make purchases of Shares on the open
market or from the Company, as he deems appropriate,
WHEREAS, the Company and the Trustee wish to set forth their respective
rights and duties with respect to this extension of credit;
NOW THEREFORE, in consideration of the premises and for other valuable
consideration, the receipt and sufficiency of which are mutually acknowledged by
the parties hereto, the Company and the Trustee hereby agree as follows:
1. AUTHORIZED LOAN AMOUNT. The Company agrees to loan an amount not to
exceed three million, five hundred thousand ($3,500,000) dollars (the
"Obligations") to the Trustee. The Trustee agrees to execute a promissory note
in the form attached hereto with respect to all funds advanced in 1990 and to
execute a similar note with respect to funds advanced in each future calendar
year in the event all of the one million (1,000,000) Shares are not purchased in
1990.
2. PAYMENT: ADVANCES FOR EACH CALENDAR YEAR TO BE SEPARATE LOANS. The
amounts advanced in each calendar year will be aggregated, so that all amounts
loaned to the Trustee in calendar year 1990 will be considered one loan, and
amounts advanced in any following calendar year(s) will be treated as one or
more separate loan(s).
The Trustee agrees to repay the Obligations incurred in each calendar year as
follows: interest, at the rate of ten (10%) per cent per annum, will be paid on
the Obligations incurred in that calendar year from the date of the advance(s)
to the last day of said calendar year. Commencing on or about March 31 of the
following calendar year, and on the last day of each of the following calendar
quarter, the Trustee will repay said Obligations in eighty (80) substantially
equal quarterly installments of principal and interest, so that the full amount
of said Obligations will be repaid within twenty (20) years following the end of
the calendar year in which they were advanced. The Trustee will have the right
to prepay the Obligation, in full or in part, at any time and from time to time,
without penalty.
3. PLEDGE. As security for the Obligations, the Trustee does hereby
pledge and grant to the Company a security interest in the Shares which it
purchases (the "Financed Shares") with the Obligations. All Financed Shares
purchased in a calendar year will be pledged as security only for the
Obligations incurred to purchase them, and said Financed Shares will not serve
as security for any other loan to the Trustee. Financed Shares serving as
security for the loans will be separately accounted for by the Trustee in one or
more escrow "pools", so that, for example, all Financed Shares acquired in 1990
will be in a 1990 escrow pool to serve as security for the 1990 Obligations, all
Financed Shares acquired in 1991 will be in a 1991 escrow pool to serve as
security for the 1991 Obligations, etc. The Company agrees to a release of the
Financed Shares from the escrow pools, as provided in
1
2
Section 10. The Trustee agrees to transfer to the Company, upon its request,
separate stock powers or other instruments of assignment, endorsed in blank, to
be held by the Company in accordance with the terms hereof.
4. TITLE TO THE FINANCED SHARES. The Trustee represents and warrants:
(i) that upon the purchase of the Financed Shares or upon the issuance
of the Financed Shares by the Company he will be the legal and beneficial owner
of the Financed Shares free and clear of all liens, encumbrances, security
interests and other charges except as created hereby; and
(ii) that he has all necessary right, power and authority to enter into
this Agreement and to grant the security interest and make the assignment
provided herein; and that he will defend the Company's right, title, special
property and security interest in and to the Financed Shares against the claims
or demands of any person, firm, corporation or other legal entity or any
governmental agency or authority.
5. RIGHTS AND DUTIES WITH RESPECT TO FINANCED SHARES. Beyond the
exercise of reasonable care to assure the safe custody of securities
constituting Financed Shares while in the Company's possession, the Company
shall not be under any duty to collect or protect the Financed Shares or income
thereon or to preserve rights pertaining thereto and shall be relieved of all
responsibility for the Financed Shares upon surrendering them to the Trustee.
6. REGISTRATION, INCOME AND VOTING RIGHTS. The right is expressly
granted to the Company, at any time after an Event of Default (as hereinafter
defined) has occurred hereunder, at its option, to transfer any securities
constituting the number of Financed Shares which is necessary to meet the
payment schedule of this Agreement in accordance with Section 7 hereof (the
"Default Shares") into its own name or the name of any nominee acting on the
Company's behalf. Until there is an Event of Default, as herein defined, the
Trustee shall be entitled to receive and retain any dividends or interest paid
in cash with respect to securities constituting Financed Shares and shall retain
all voting rights incident to ownership. After the occurrence of an Event of
Default, (a) the Company shall have the sole right to receive any dividends,
interest or distribution with respect to securities constituting Default Shares
which stand in its name or the name of the Company's nominee, and (b) the
Company shall be expressly empowered to exercise all powers of voting and
consent with respect to any securities constituting Default Shares which have
been transferred into its name or the name of the Company's nominee and the
Company is authorized to provide a copy of this Agreement to the transfer agent
for the common stock of any issuer of securities constituting Financed Shares as
conclusive evidence of the registration, voting and other rights herein granted.
7. EVENTS OF DEFAULT; REMEDIES. If there is an event of default (each
an "Event of Default") whereby there is a default in the payment of any of the
Obligations under the terms of this Agreement, then thereupon or at any time
thereafter (unless all existing Events of Defaults have been cured to this
Company's satisfaction), the Company may declare this Agreement to be in default
and shall thereafter have as its sole remedy with respect to any default, the
right to dispose of an amount of Financed Shares in the Plan escrow account that
is necessary to provide to the Company sufficient funds to bring the Trustee
current with his Obligations hereunder and under the Promissory Note. The
Trustee will not be considered to have committed any default, notwithstanding
any other provision of this agreement, if his non-payment is due to the failure
of the Company to have contributed sufficient amounts to the Plan to enable him
to meet his obligations hereunder or under
2
3
the terms of any other ESOP financing arrangement.
8. FURTHER ASSURANCES. The Trustee will at any time and from time to
time upon the written request of the Company, join in the execution and filing
of appropriate Uniform Commercial Code financing statements and will also do,
make, execute and deliver all such additional and further acts, things, deeds,
instruments, documents and assurances (including without limitation, Federal
Reserve Form U-1) as the Company may reasonably request in order to perfect and
protect more completely the Company's rights hereunder and its security interest
in the Financed Shares and to carry out the terms of this Agreement. The
Company, in its own name or in the name of the Trustee, may likewise take such
steps in case the Trustee shall fail to do so. All costs and expenses incurred
by the Company or the Trustee in connection with anything contemplated
hereunder, including without limitation, legal fees and other costs and expenses
relating to any judicial proceedings, shall be borne by the Trustee, and to the
extent they are paid or incurred by the Company, shall be reimbursed, with
interest, by the Trustee upon demand.
9. WAIVER OF DEMANDS, NOTICES, DILIGENCE, ETC. The Trustee hereby
assents to all the terms and conditions of the Obligations and waives (a) demand
for the payment of the principal of any Obligation or of any claim for interest
or any part of any thereof; (b) notice of the occurrence of an Event of Default
under any Obligation; (c) protest of the nonpayment of the principal of any
Obligation or of any claim for interest or any part of any thereof; (d) notice
of presentment, demand or protest; (e) notice of any indulgences or extensions
granted to the Trustee or to any other person or entity which shall have
succeeded to or assumed the obligation of the Trustee; (f) any requirement of
diligence or promptness on the part of the Company in the enforcement of any of
its rights under the provisions of any Obligation or of this Pledge Agreement;
(g) any enforcement of any Obligation; (h) any right which the Trustee might
have to require the Company to proceed against any guarantor of the Obligations
or to realize on any collateral security thereof; and (i) any and all notices of
every kind and description which may be required to be given by any statute or
rule of law in any jurisdiction except as provided herein.
10. RELEASE OF SHARES FROM ESCROW POOLS. The Trustee agrees to hold the
Financed Shares purchased in each calendar year in a separate escrow pool (as
described in Section 3). Shares in each escrow pool will be released for
allocation to participant accounts as follows:
A-- Escrow pool established in 1990
i) For the year ending December 31, 1990, twelve
thousand, five hundred (12,500) shares; and
ii) For each following year, a number of Shares from
the 1990 escrow pool equal to five (5%) percent of
the number of Shares originally purchased for the
1990 escrow pool.
B-- Escrow pools established in 1991 (and later years, if
any)
For each year, a number of Shares equal to five (5%)
percent of the number of Shares originally purchased
in the escrow pool.
C-- Commencing on December 31, 1991, at least fifty
thousand (50,000) shares shall be released each year
from all pools under this agreement. To the extent
that the amounts under A and B for any such year
total less than fifty thousand
3
4
(50,000) additional shares shall be released from the
oldest pool under this agreement.
In all events, the number of shares released from each escrow pool must
be at least equal to the number of Shares in the escrow pool immediately prior
to the release multiplied by a fraction, the numerator of which is the amount of
principal and interest paid on the loan for the year and the denominator of
which is the sum of the numerator plus the principal and interest to be paid for
all future years, in accordance with Internal Revenue Code Regulation Sec.
54.4975-7(b)(8)(i), and as provided in Section 2(c) of Article 6 of the Plan.
The release of Shares from the pools will not be prevented or suspended
if the reason for the Trustee's non-payment of obligations owed to the Company
is due to the failure of the Company to have contributed sufficient amounts to
the Plan to enable the Trustee to meet his obligations hereunder or under the
terms of any other ESOP financing arrangement.
11. ALTERNATIVE. If the Trustee is unable to repay his obligations
under this Agreement, the Trustee may pursue any of the following alternatives
which he deems prudent at the time and which shall discharge his obligations
under this Agreement in full:
A) He may return the remaining Financed Shares in the
escrow account to the Company, properly endorsed to
the Company which will discharge the Obligations in
full;
B) He may continue to make payments to or for the
benefit of the Company by tendering to the Company
the number of shares necessary to keep the
Obligations current;
C) He may obtain a loan from another lender to pay off
remaining obligations to the Company and the Company
agrees to release the Financed Shares from the
restrictions of this Agreement for that purpose; or
D) If non-payment is due to the Company having failed to
contribute sufficient amounts for him to meet his
ESOP financing arrangements, he may continue to
release Shares from the escrow pools without taking
further action; or
E) He may utilize any combination of the above
alternatives.
12. MISCELLANEOUS.
(a) No course of dealing between the Trustee and the Company,
and no failure to exercise nor any delay in exercising on the part of the
Company, any right, power or privilege hereunder or under any other instrument
or agreement, shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or thereunder preclude any
other or further privilege.
(b) This Agreement is subject to amendment or modification
only by a writing signed by the Trustee and the Company. The Financed Shares
shall secure all Obligations.
(c) In case any provision of this Agreement shall be
determined to be invalid or unenforceable under applicable law, applied in such
manner as will permit enforcement; otherwise this Agreement shall be construed
as though such provision had never been made a part hereof.
4
5
(d) This Agreement is intended to take effect as a sealed
instrument governed by the laws of the State of Delaware and shall inure to the
benefit of the Company and its successors and assigns of the Trustee. If a
non-individual serves as trustee of the Plan, then this Agreement shall be
effective notwithstanding the fact that such trustee ceases to exist by reason
of its liquidation, merger, consolidation or otherwise.
13. TERMINATION. This Agreement shall terminate upon the payment
and satisfaction in full of all Obligations.
14. ERISA COMPLIANCE. The loan of funds to the Trustee that he may
purchase Shares is meant to comply fully with the terms of ERISA and its
requirements for "leveraged ESOP's." Any provision herein which does not comply
with ERISA is null and void and of no effect.
IN WITNESS WHEREOF, the Trustee and the Company have caused this
Agreement to be duly executed as of the day and year first above written.
EKCO GROUP, INC.
By /S/ XXXXXX XXXXX
--------------------------
President
/S/ XXXX X. XXXXXX
----------------------------
Xxxx X. Xxxxxx, as
Trustee and not individually
5
6
Exhibit A
---------
PROMISSORY NOTE
---------------
$_______________________ December 31, 19____
Nashua, New Hampshire
The Trustee of the Ekco Group, Inc. Employees' Stock Ownership Plan ("Trustee")
hereby acknowledges that it has received a series of cash advances from Ekco
Group, Inc. ("Employer") during the calendar year ending on the above referenced
date, and that the advances total the principal amount of $________ (the
"Loan Amount").
The Trustee agrees to repay the Loan Amount, with 10% interest, in 80 equal
quarterly installments of $ ________ each, with the first installment due on
March 31, 19__ and the last installment due on December 31, 20__.
For the calendar year in which the Loan Amount was advanced, interest at the 10%
rate will be calculated for each advance through the end of the calendar year,
but no principal payments will be required. This payment of interest will be due
at the same time as the first quarterly installment.
A grace period of 30 days is permitted for any payment owed by the Trustee
hereunder.
This Note is issued under the Loan Agreement between the Employer and the
Trustee dated as of October 1, 1990 and it is subject to and entitled to the
benefit of all of the terms and conditions thereof. It may be prepaid in whole
or in part without premium as therein provided, and upon the occurrence of any
default specified therein, the principal may become forthwith due and payable in
the manner, upon conditions and with the effect provided thereby; provided,
however, that in no event shall the Employer have any additional remedies other
than the right to dispose of an amount of Financed Shares (as such term is
defined in the Loan Agreement) that is necessary to provide to the Company
sufficient funds to bring the Trustee current with his obligations under the
Loan Agreement and hereunder.
The Trustee hereby waives presentment, demand, notice, protest and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension or postponement of
the time of payment or any other indulgence to any substitution, exchange or
release of collateral and the addition or release of any other party or person
primarily or secondarily liable.
--------------------------------
Xxxx X. Xxxxxx, as Trustee
and not individually
