1
Exhibit 10.61
RESTATED SECURED REVOLVING LINE
OF CREDIT AGREEMENT
THIS AGREEMENT, made as of the 29th day of April, 1998, by and between
FLEET NATIONAL BANK (formerly known as NORSTAR BANK OF UPSTATE NY), a national
banking association organized and existing under the laws of the United States
of America, and having its principal banking house located at 00 Xxxxx Xxxxxx,
Xxxxxx, Xxx Xxxx 00000 (herein called the "Bank") and DECORA, INCORPORATED, a
Delaware corporation duly authorized to do business in the State of New York as
DECORA MANUFACTURING and having its principal place of business at 0 Xxxx
Xxxxxx, Xxxx Xxxxxx, Xxx Xxxx 00000 (herein called the "Borrower").
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank entered into a Secured Revolving Line
of Credit Agreement on April 18, 1990 (the "Secured Revolving Line of Credit
Agreement") pursuant to the terms and conditions of which the Bank agreed, from
time to time, up to and including July 31, 1992, to make loans to the Borrower
in such amount or amounts as the Bank would determine, but not to exceed
$5,000,000.00 outstanding in the aggregate at any one time, with all borrowings
evidenced on Borrower's Promissory ("GRID") Note executed and delivered by the
Borrower on April 18, 1990; and
WHEREAS, the Borrower and the Bank entered into an Amendment to Secured
Revolving Line of Credit Agreement effective and dated as at July 31, 1992 (the
"First Amendment"), pursuant to the terms and conditions of which the Bank
agreed, from time to time, on a month-to-month basis, to make loans to the
Borrower in such amount or amounts as the Bank would determine, but not to
exceed $5,000,000.00 outstanding in the aggregate at any one time, with all
borrowings evidenced by Borrower's Promissory ("GRID") Note dated July 31, 1992,
which Note substituted the Promissory ("GRID") Note dated April 18, 1990; and
WHEREAS, the Borrower and the Bank entered into a Second Amendment to
Secured Revolving Line of Credit Agreement effective and dated as of the 29th
day of July, 1993 (the "Second Amendment"), pursuant to the terms and conditions
of which the Bank agreed, from time to time, on a month to month basis, to make
loans to the Borrower in such amount or amounts as the Bank would determine but
not to exceed $5,000,000.00 outstanding in the aggregate at any one time, with
all borrowings evidenced by Borrower's Promissory ("Grid") Note dated July 29,
1993, which Note substituted the Promissory ("Grid") Note dated July 31, 1992;
and
WHEREAS, the Borrower and the Bank entered into a Third Amendment to
Secured Revolving Line of Credit Agreement effective and dated as of the 19th
day of July, 1994 (the
2
"Third Amendment") pursuant to the terms and conditions of which the Bank
agreed, from time to time, on a month to month basis, to make loans to the
Borrower in such amount or amounts as the Bank would determine not to exceed
$6,000,000.00 outstanding in the aggregate at any one time, with all borrowings
evidenced by Borrower's Promissory ("GRID") Note dated as at the 19th day of
July, 1994, which Note substituted the Promissory ("GRID") Note dated July 29,
1993; and
WHEREAS, the Borrower and the Bank entered into a Fourth Amendment to
Secured Revolving Line of Credit Agreement effective and dated as of the 13th
day of August, 1996 (the "Fourth Amendment") pursuant to the terms and
conditions of which the Bank agreed, from time to time, on a month to month
basis, to make loans to the Borrower in such amount or amounts as the Bank would
determine not to exceed $6,000,000.00 outstanding in the aggregate at any one
time, with all borrowings evidenced by Borrower's Restated Promissory ("GRID")
Note dated as at the 13th day of August, 1996, which Note substituted the
Promissory ("GRID") Note dated July 19, 1994; and
WHEREAS, the Borrower and the Bank entered into a Fifth Amendment to
Secured Revolving Line of Credit Agreement effective and dated as of the 27th
day of March, 1997 (the "Fifth Amendment") pursuant to the terms and conditions
of which the Bank agreed, from time to time, on a month to month basis, to make
loans to the Borrower in such amount or amounts as the Bank would determine not
to exceed $6,000,000.00 outstanding in the aggregate at any one time, with all
borrowings evidenced by Borrower's Restated Promissory ("GRID") Note dated as at
the 13th day of August, 1996; and
WHEREAS, the Borrower and the Bank entered into a Sixth Amendment to
Secured Revolving Line of Credit Agreement effective and dated as of the 26th
day of September, 1997 (the "Sixth Amendment") pursuant to the terms and
conditions of which the Bank agreed, from time to time, on a month to month
basis, to make loans to the Borrower in such amount or amounts as the Bank would
determine not to exceed $6,000,000.00 outstanding in the aggregate at any one
time, with all borrowings evidenced by Borrower's Restated Promissory ("GRID")
Note dated as at the 13th day of August, 1996; and
WHEREAS, the Borrower has requested that the Bank increase the
availability under the Secured Revolving Line of Credit Agreement to an amount
not to exceed $15,000,000.00 and that the Bank further extend the time for
making loans under the Secured Revolving Line of Credit Agreement until April
30, 2001 and make certain further changes to the Secured Revolving Line of
Credit Agreement, and the Bank is willing to do so, but only pursuant to the
terms of this Restated Secured Revolving Line of Credit Agreement.
NOW, THEREFORE, in consideration of the Bank agreeing to increase the
availability under the Secured Revolving Line of Credit, to extend the time to
make loans and to make further amendments under the Secured Revolving Line of
Credit Agreement as previously
2
3
amended by the terms of the First Amendment, the Second Amendment, the Third
Amendment, the Fourth Amendment, the Fifth Amendment and the Sixth Amendment,
and other good and valuable consideration, receipt of which is hereby
acknowledged, it is agreed on the part of the Borrower with the Bank that the
Secured Revolving Line of Credit Agreement together with all amendments thereto
is hereby restated in full as follows:
I. Definitions. The following definitions shall apply to this agreement:
(a) "Acceptable Accounts Receivable" - eighty five percent (85%) of all
Domestic Accounts Receivable, Canadian Accounts Receivable and Freidola Accounts
Receivable aged ninety (90) days or less and all insured and letter of credit
backed foreign accounts receivable aged 90 days or less- that are free and clear
of all liens, and are unconditionally owed to the Borrower without defense,
offset or counterclaim;
(b) "Acceptable Inventory" - until November 2, 1998, sixty percent (60%)
of all inventory subject to a $6,000,000.00 cap on borrowings based on
inventory; on November 3, 1998 and thereafter, sixty percent (60%) of all
inventory subject to a $4,000,000.00 cap on borrowings based on inventory - all
valued at the lower of "cost" or "market" as would be determined on a balance
sheet of the Borrower prepared in accordance with generally accepted accounting
principals consistently applied;
(c) "Canadian Accounts Receivable" - those accounts receivable of the
Borrower owed to it by all Canadian based retailers ("Canadian Companies").
(d) "Credit and Reimbursement Agreement" - The Credit and Reimbursement
Agreement, together with all amendments thereto, executed by the Borrower in
favor of the Bank in connection with that certain letter of credit (the "Letter
of Credit") issued on November 13, 1996 by the Bank in favor of Mellon Bank,
FSB, as Trustee, in the amount of $2,497,000.00 concerning the issuance by the
Counties of Xxxxxx and Washington Industrial Development Agency of a Two Million
Four Hundred Sixty Thousand and no/100 Dollars ($2,460,000.00) aggregate
principal amount industrial development revenue bonds (Decora, Incorporated
Project, Series 1996).
(e) "Current Asset Collateral" - all of Borrower's now owned and
hereafter acquired or arising, wherever located, inventory, accounts receivable,
chattel paper, contract rights, instruments and choses in action, plus all
proceeds and products thereof, if any, and all replacements, additions and
accessions thereto .
(f) "Domestic Accounts Receivable" - those accounts receivable of the
Borrower owed to it by all United States based retailers ("Domestic Companies").
3
4
(g) "Events of Default" - Any of those events defined as an Event of
Default under this Agreement, and Loan Document or any other instrument or
document between the Borrower and the Bank.
(h) "Freidola Accounts Receivable" - those accounts receivable of the
Borrower owed to it by Freidola Debr. Xxxxxxxxx GmbH & Co. KG ("Freidola"), a
German company with its principal place of Business in Xxxxxxxx-Xxxxxx, Germany.
(i) "Loan" - The loan of up to $15,000,000.00 by the Bank to the
Borrower.
(j) "Loan Documents" - The Note (as defined herein), this Agreement, the
Instruments of Collateral Security (as defined herein) and any other document or
agreement now or hereafter executed by the Borrower in favor of the Bank in
connection with the Loan.
(k) "Other Accounts Receivable" - those accounts receivable of the
Borrower owed to it by entities other than Domestic Companies, Freidola and
Canadian Companies.
(l) "Parent Notes" - High yield senior notes totaling $110,000,000.00
issued by Decora Industries, Inc. to finance the acquisition of Rubbermaid
Decorative Products Group and to refinance certain other indebtedness of its
subsidiaries.
II. Amount and Terms of Loan.
(a) The Bank, will from time to time, up to and including April 30, 2001
(herein called the "Maturity Date"), make revolving loans to the Borrower in
such amount or amounts as the Bank may determine in the exercise of its
commercially reasonable discretion exercised in good faith, up to the lesser of
(1) the sum of Acceptable Accounts Receivable and Acceptable Inventory or (2)
Fifteen Million Dollars ($15,000,000.00) outstanding in the aggregate at any one
time. Borrower may borrow, repay and reborrow revolving loans under this
Agreement, subject to the limitation on the aggregate principal amount of
outstanding borrowings set forth in the preceding sentence and the limitations
set forth in subparagraph (b) below. On or before the first and second
anniversary of this Agreement and assuming no Event of Default exists, no event
that but for the passage of time would constitute an Event of Default exists, no
material changes in Bank policy with respect to similar loans have occurred, and
that there is no adverse change in Borrower's financial condition, the Bank will
consider extending the Maturity Date for an additional year, on terms and
conditions acceptable to the Bank. All borrowings shall be evidenced on the
records of the Bank pursuant to Borrower's RESTATED REVOLVING PROMISSORY NOTE
(herein called "Note"), executed and delivered by the Borrower to the Bank on
even date herewith. Said Note shall refer on the face thereof to this Agreement,
and shall be subject to all the terms and conditions hereof. Said Note shall
bear interest as set forth in said Note;
4
5
(b) Notwithstanding the above, the Bank has no obligation, at any point
in time, to make any advance under this Agreement, in the event that there has
then occurred a material deterioration to the financial condition of the
Borrower, in the event that the Borrower has not provided the necessary
prerequisites for each advance hereunder, or in the event that Borrower is then
in default, or but for the passage of time would be in default, under this or
any Loan Document or other agreement or instrument concerning money or credit
between the Bank and the Borrower.
(c) On or before the fifteenth day of the month immediately succeeding
the date of this agreement, and monthly thereafter, the Borrower will deliver to
the Bank a written schedule and aging report (herein called the "Aging
Schedule"), as of the end of the preceding month, clearly indicating the names
and addresses of each account debtor having an account payable to the Borrower,
indicating the amount due and the age of the account receivable in terms of less
than thirty (30), sixty (60), ninety (90) and more than ninety (90) day
intervals from the time of the xxxxxxxx, plus said "aging schedule" shall
distinguish between Domestic Accounts Receivable, Canadian Accounts Receivable,
Freidola Accounts Receivable and Other Accounts Receivable; plus such other
information as the Bank may reasonably request from time to time. Borrower will
hold at its principal place of business and relative to accounts receivable then
subject to Bank's security interest (1) duplicate invoices (the originals of
which will have been previously mailed to the respective accounts debtors),
which shall set forth with respect to each account receivable full details of
the sale and shipment and/or services rendered and (2) copies of shipping
documents and evidence of delivery, if any. Such invoices, documents and
evidence will be held by the Borrower available for inspection by the Bank for a
period of at least two (2) years from the date of the creation of the accounts
receivable to which they are applicable or for such other period as may be
required by the Bank in writing, segregated from other books and records of the
Borrower, and stamped or marked in a manner satisfactory to the Bank, clearly
indicating the security interest of the Bank and the relative accounts
receivable. In addition, Borrower will also forward to the Bank on or before the
fifteenth (15th) day of each month, a list (herein called the "Inventory
Schedule") to include its cost of all inventory (to include raw materials, work
in process and finished goods), as at the end of the preceding month. In
addition, Borrower will also forward to the Bank on or before the fifteenth
(15th) day of each month, an aging schedule of all payables;
(d) Advances by the Bank to the Borrower shall be at the commercially
reasonable discretion of the Bank exercised in good faith, by means of a loan
formula certificate (in the form of EXHIBIT A attached hereto) based upon the
Aging Schedule of Accounts Receivable and the Inventory Schedule, referred to in
the above subparagraph; except that the total loans outstanding at any one time
in connection with this Agreement shall not exceed "Acceptable Accounts
Receivable" and "Acceptable Inventory";
(e) Simultaneously herewith, the Borrower agrees to open and maintain a
separate account with the Bank, said account to be designated as a Cash
Collateral Account. Borrower
5
6
agrees to also enter into simultaneously herewith, a lock box arrangement with
the Bank concerning its accounts receivable. Audits will be done three times a
year at the Bank's option and at Borrower's expense either by (1) an independent
certified public accountant acceptable to the Bank, or (2) by the Bank's
internal staff. In addition, all proceeds and cash sales of inventory, work in
process, raw materials, finished goods and services rendered, if any, and of
collections on accounts receivable shall, if received by the Borrower, be
immediately deposited in the form received except for its endorsements when
necessary, in the Cash Collateral Account. Until so deposited, all such proceeds
shall be held in trust by the Borrower for and as the property of the Bank and
shall not be co-mingled with any other funds or property of the Borrower. All
instruments so received shall be deposited in the Cash Collateral Account
subject to final payment. Provided the Borrower is not in default under any of
the terms and conditions of this Agreement, the Loan Documents, or any other
loan by Bank to Borrower, plus any amendments, modifications, extensions or
renewals of any of the foregoing, the Bank shall within a reasonable period of
time apply the amounts deposited in the Cash Collateral Account as payment on
the Note. In the event of default, application of the deposits held in the Cash
Collateral Account shall be subject to the discretion of the Bank, and deposits
in said Cash Collateral Account shall be security for all financial obligations
of the Borrower to the Bank (hereinafter called "Financial Obligation(s) of
Borrower") arising under the Note, this Agreement, the Loan Documents, or any
other loan or agreement between the Bank to the Borrower, plus any amendments,
modifications, extensions or renewals of any of the foregoing or any present or
future indebtedness arising therefrom and shall not constitute payment on any
Financial Obligation of Borrower until applied, in the Bank's discretion,
against a Financial Obligation of Borrower. The Borrower shall have the
liability of a general endorser with respect to all instruments deposited
therein whether or not it shall have endorsed the same. Each deposit made by the
Borrower in the Cash Collateral Account shall also be accompanied by a deposit
slip or slips clearly indicating proceeds collected from cash sales or
inventory, and the proceeds collected from accounts receivable with the same
name of each account receivable and the amount collected.
(f) As security for the payment of all indebtedness evidenced by the
Note and all indebtedness now or hereafter owed by the Borrower to the Bank
pursuant to the Credit and Reimbursement Agreement, plus any other loan or
indebtedness owed by Borrower to Bank, the Borrower has made, executed and
delivered to the Bank those instruments of collateral security (hereinafter
collectively called "Instruments of Collateral Security") listed below:
(1) The Borrower has made, executed and delivered to the Bank a
$2,497,000.00 real property Mortgage dated the date hereof, on all real
property owned by the Borrower situated at 0 Xxxx Xxxxxx, Xxxx Xxxxxx,
Xxx Xxxx (hereinafter the "Premises"); and
(2) The Borrower has made, executed and delivered to the Bank a
Mortgage Modification Agreement (herein called "Mortgage Modification
Agreement") dated the
6
7
date hereof, modifying a Mortgage on the Premises in the face amount of
$4,000,000.00 dated May 18, 1990, and recorded in the Office of the
Clerk of the County of Washington, New York, on the 23rd day of April,
1990, in Book 601 of Mortgages at Page 291, as modified by Mortgage
Modification Agreement by and between the Borrower and the Bank dated
July 19, 1994 and recorded in the Office of the Clerk of the County of
Washington, New York on the 25th day of July, 1994 in Book 846 of
Mortgages at Page 199 and as further modified by Mortgage Modification
Agreement by and between the Borrower and the Bank dated the 27th day of
March, 1997 and recorded in the Office of the Clerk of the County of
Washington, New York on the 28th day of March, 1997 in Book 995 of
Mortgages at Page 213; said Mortgage Modification Agreement secures the
Note to the extent of $2,999,000.00; and
(3) The Borrower has made, executed and delivered to the Bank, a
Restated Security Agreement dated the date hereof which hereby continues
Bank's first priority security interest in the Current Asset Collateral
granted to the Bank by the Secured Revolving Line of Credit Agreement
and grants Bank a current security interest in said Current Asset
Collateral.
(g) Bank hereby releases any security interest it may have in all of
Borrower's now owned and hereafter acquired and arising, wherever located:
machinery, equipment, furniture and fixtures that can be removed without
significant damage to either the realty or the article being removed, or both
and the Bank's lien will remain on those fixtures which are so annexed to the
realty that they cannot be removed without significant damage to either the
realty or the article being removed, or both. Bank further releases its security
interest in General Intangibles and Patents, Copyrights and Trademarks (as
defined in the Secured Revolving Line of Credit Agreement). Bank further
releases (i) Decora Industries, Inc. (hereinafter "Decora") from any liabilities
or obligations arising from a Guaranty dated March 27, 1997 executed by Decora
in favor of the Bank guaranteeing all indebtedness owed by the Borrower to the
Bank together with all other guarantees executed by Decora dated on or before
the date hereof guaranteeing the indebtedness owed by the Borrower to the Bank
and (ii) any security interest in, lien on, or pledge of any capital stock of
Borrower previously granted by Decora Industries, Inc. to secure said guarantees
or any other indebtedness previously owing by Decora Industries, Inc. to Bank.
It is the intent of the parties that only those liens and security interests
created, continued and/or maintained by the Loan Documents, the Credit and
Reimbursement Agreement or any other document or agreement executed by Borrower
in favor of Bank in connection with the Loan or Letter of Credit be maintained
and the Bank agrees to release any other collateral at the request of Borrower
and in connection therewith, executes such agreements, documents and instruments
as requested by Borrower.
(h) In consideration for the foregoing, the Borrower does hereby agree
to pay to the Bank a commitment fee of Forty-five Thousand Dollars ($45,000.00),
which shall be delivered to Bank at closing in immediately available funds. In
addition, the Borrower agrees to pay to
7
8
the Bank a one-quarter of one percent (.25 of 1.00%) per annum facility fee on
the unused portion of this revolving credit (the unused portion being the
difference between the average amount of principal disbursed under the Note
during the quarter and Fifteen Million Dollars $15,000,000.00), which facility
fee will be payable quarterly in arrears beginning June 30, 1998;
III. Representations and Warranties of the Borrower. The Borrower represents and
warrants as follows:
(a) That Borrower is duly incorporated, validly existing and is in good
standing under the laws of the State of Delaware. That Borrower is qualified as
a foreign corporation and will remain in good standing in all other
jurisdictions, if any, where its activities make such qualifications necessary.
That the Borrower is duly authorized to do business in the State of New York as
DECORA MANUFACTURING and is duly authorized under all applicable provisions of
law to carry on its business as now conducted.
(b) That the Borrower is duly authorized under its Certificate of
Incorporation and its By-Laws to enter into and perform this Agreement. Entering
into and performing this Agreement will not result in a breach or violation of
or a default under any applicable law, agreement or instrument to which Borrower
is subject or a party and will not result in the creation of any
security interest, lien, charge, or encumbrance upon any of its assets under any
such agreement or instrument. This Agreement, the Note and all Loan Documents
are, or upon the execution and delivery thereof will be, valid and enforceable
obligations of the Borrower in accordance with their terms.
(c) The Borrower's entire authorized capital stock consists of twenty
million (20,000,000) shares of common stock, par value $0.01 per share of which
one thousand (1,000) shares are issued and outstanding. All such issued shares
have been validly issued and are fully paid and non-assessable. There are no
outstanding rights and options to any person, firm or corporation to purchase or
otherwise acquire any of the Borrower's capital stock, except that Decora
Industries, Inc. may pledge its capital stock of Borrower to the holders of the
Parent Notes (or the trustee for such holders) as collateral for said Parent
Notes.
(d) The Borrower warrants that all financial statements heretofore given
by the Borrower to the Bank, and upon which the Bank relies in making this Loan,
were all prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied and are true, correct and complete in all material
respects and represent the financial condition of the Borrower as of the dates
of said balance sheets and the results of operations of the Borrower for the
period covered by said statements of profit and loss and surplus, if any. There
has been no material adverse change in the financial condition or the assets of
the Borrower since the last dated balance sheet delivered to the Bank.
8
9
(e) The Borrower has good marketable title to all assets reflected in
the last dated balance sheet referred to above, except assets sold or disposed
of in the ordinary course of business since the date of said balance sheet. None
of said assets are subject to any mortgages, security interests, liens, charges,
pledges, or encumbrances not referred to in said balance sheets, except liens,
if any, in respect to current taxes, liens granted to the Bank pursuant to the
Loan Documents, liens granted to the Washington County Local Development
Corporation to secure a loan in the original principal amount of $375,000.00,
liens granted to Borrower's affiliate, Xxxxxx Xxxxxxxxxx A.G. ("Hornschuch") in
connection with certain intercompany loans in the approximate amount of
$10,000,000.00 from Hornschuch to Borrower and the pledge of Borrower's capital
stock to secure the Parent Notes.
(f) The Borrower possesses all necessary patents, trademarks, trade
names, copyrights and licenses to carry on its business as now conducted without
known conflict with the valid patents, trademarks, trade names, copyrights and
licenses of others and shall not pledge or in anyway encumber said patents,
trademarks, tradenames, copyrights or licenses without the Bank's prior written
consent.
(g) Except as set forth on Rider A hereto, no litigation in any court or
proceedings before any commission or other administrative authority is pending
or threatened against the Borrower.
(h) The Borrower has filed all tax and similar returns and has paid or
provided for the payment of all taxes and assessments due. The Borrower has no
knowledge of any claims for taxes which might become a lien upon its assets.
(i) There are no judgments or tax liens against the Borrower.
(j) The Borrower is not an insurer, endorser, or guarantor of any
indebtedness or obligation of another, except that the Borrower is a guarantor
of the Parent Notes.
IV. Affirmative Covenants and Agreements of the Borrower. The Borrower covenants
and agrees that until the Note and interest thereon shall have been paid in
full:
(a) The Borrower will apply the proceeds of the Loan provided for in
this Agreement to acquire Rubbermaid's Decorative Products Division, to
refinance existing senior and subordinated debt, to pay transaction fees and to
finance ongoing working capital and capital expenditures.
(b) The Borrower will promptly pay or discharge all taxes, assessments,
charges, or levies imposed upon it or upon any of its property (unless any such
taxes, assessments, charges
9
10
or levies are contested by the Borrower in good faith) and all lawful claims for
labor, material or supplies which, if unpaid, might become a lien or charge upon
any such property.
(c) The Borrower will do all things necessary to preserve and keep in
full force and effect its existence, rights and franchises.
(d) The Borrower will maintain the following financial covenant, the
calculation of same to be based on GAAP:
The Borrower will at all times maintain a Minimum Fixed Charge
Coverage Covenant of 1.10 to 1.00. The covenant shall be measured
quarterly on a rolling four (4) quarters basis with the first
test to occur on March 31, 1999. The covenant is defined as
follows:
EBITDA + non-cash restructuring expenses + cash from intercompany
loans and/or advances divided by interest expense + Current
Maturities of Long Term Debt (prior four quarters) + Cash Taxes +
Tangible and Intangible CAPEX (net of financed CAPEX) +
Dividends/Distributions + Repayment of Intercompany loans or
advances.
(e) The Borrower will carry insurance as required in the Loan Documents.
It will carry insurance with responsible insurance companies for which the Bank
will be named as an insured against such other risks of whatever kind and in
such amounts as the Bank may from time to time reasonably request in writing for
its protection. The Borrower will deliver to the Bank the insurance policies
provided for above and will reimburse the Bank for any premiums paid for
insurance by the Bank on the failure of it to carry such insurance or deliver
and assign such policies. In addition to the foregoing, the Borrower will carry
such other types and amounts of insurance as are usually carried by corporations
engaged in the same or similar businesses similarly situated.
(f) The Borrower will maintain its properties in good repair and
condition and will make all needed renewals and replacements so that its
business may be properly and advantageously conducted at all times. Borrower
will comply with all statutes, ordinances, rules, regulations and orders of any
federal, state, municipal authority or official having jurisdiction over its
property; provided that it may contest in good faith any statutes, ordinances,
rules, regulations and orders of such bodies or officials in any reasonable
manner which will not, in the Bank's opinion, adversely affect its rights under
this Agreement. As to any real property owned or occupied by the Borrower, the
Borrower will cure any violation of any governmental requirements respecting the
property, if within Borrower's power to do so, including without limitation, any
laws, rules or regulations governing hazardous waste removal and clean-up or
arising from an intentional or unintentional act or omission of the Borrower or
any previous owner and/or operator of the real property, within twenty (20) days
after receipt of written notice
10
11
and demand from the Bank. The expenses of any environmental testing and
clean-up, or fees for environmental auditors or engineers, shall be chargeable
to the Borrower and shall be secured by any and all Instruments of Collateral
Security. The Borrower agrees to indemnify and hold Bank harmless against any
loss or liability, cost or expense (including, without limitation, reasonable
attorney's fees and disbursements) which Bank may sustain as a result of or on
account of any lien imposed upon any Instrument of Collateral Security by any
federal, state or local authority charged with the enforcement of environmental
protection laws and regulations or by reason of Borrower's failure, or the
failure of any of Borrower's predecessors in title, or the failure of any of
Borrower's (sub)tenants, to perform any of its obligations pursuant to any
federal, state or local environmental protection laws and regulations. The
provisions of this paragraph shall survive any transfer of any asset included in
any Instrument of Collateral Security, including a transfer after a foreclosure
of real property subject to a mortgage, and delivery of the deed affecting such
transfer.
(g) The Borrower will at all times keep proper books of record and
account in accordance with GAAP and the Borrower will furnish to the Bank:
(1) With reasonable promptness upon the written request of the
Bank, such information regarding the business affairs and financial
condition of the Borrower as the Bank may reasonably request.
(2) Simultaneously at the time they are so furnished, a copy of
all statements and reports furnished to stockholders of the Borrower.
(3) Within ninety-five (95) days of the end of its fiscal year,
annual certified public accountant audited, consolidated statements for
Decora Industries, Inc. (which must include a consolidating statement
schedule), all prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied, along with copies of the
Borrower's 10-K report;
(4) Within ninety-five (95) days of the end of its fiscal year,
annual certified public accountant audited statements for Borrower, all
prepared in accordance with generally accepted accounting principles
("GAAP") consistently applied;
(5) Within ninety-five (95) days of the end of its fiscal year,
internally prepared annual budgets for the Borrower;
(6) Field audits 3 times per year of the Borrower conducted, at
the Bank's option, by an independent certified public accountant or the
Bank's internal bank personnel, at Borrower's expense.
11
12
(7) Within thirty (30) days of each calendar month end,
internally prepared financial statements for the Borrower for the
preceding month, in form acceptable to the Bank, all prepared in
accordance with GAAP;
(8) Within sixty (60) days of the end of each fiscal quarter, 10Q
reports for Decora Industries, Inc.;
(9) Within thirty (30) days of the end of each month, account
receivable aging reports concerning the Borrower in form acceptable to
the Bank;
(10) Within sixty (60) days after the end of each fiscal quarter,
a compliance letter acknowledged by the Chief Financial Officers of both
the Borrower and Decora Industries, Inc. concerning the financial
covenant referenced in subparagraph (d) of this paragraph IV; and
(11) A loan formula certificate in the form of EXHIBIT A attached
hereto and made a part hereof at the time the Borrower requests each
advance under the Loan, but no less frequently than weekly.
(h) The Borrower will furnish to the Bank promptly after their
effectiveness, copies of all amendments or other documents modifying the
Certificate of Incorporation of the Borrower, certified by the Secretary for the
states that it is incorporated in and authorized to do business in, and copies
of all amendments to the By-Laws of the Borrower certified by its Secretary.
(i) The Borrower will permit the Bank, by its officers and agents, to
have access to and examine at all reasonable times the properties, minute books
and other corporate records, and books of account and financial records of the
Borrower.
(j) The Borrower will promptly notify the Bank upon the occurrence of
any event of default, as provided in this Agreement, of which the Borrower has
knowledge.
(k) The Borrower agrees to reimburse the Bank for any and all
out-of-pocket expenses incurred by the Bank in connection with the making of
this Agreement, the Note and any Loan Document, or in connection with the
enforcement thereof (irrespective of whether litigation is actually commenced),
including, if applicable, reasonable counsel fees, searches for prior liens,
recording and filing fees, and if applicable, mortgage taxes, title insurance
premiums, and the cost of surveying the property covered by any Mortgage given
as an Instrument of Collateral Security. Counsel fees to McNamee, Lochner, Xxxxx
& Xxxxxxxx, P.C. in connection with their representation of the Bank concerning
this Agreement, the Note and all Loan Documents prepared and delivered in
connection therewith, plus the documentation in connection with the
12
13
any modification of the Credit and Reimbursement Agreement, shall be paid in
full by the Borrower prior to or simultaneously with the disbursement of any
Loan proceeds hereunder.
(l) Borrower shall comply in all material respects with the applicable
provisions of ERISA and furnish to the Bank (i) as soon as possible, and in any
event within ten (10) days after any officer of the Borrower knows or has reason
to know that any Reportable Event (as defined in ERISA) with respect to any Plan
has occurred, a statement of the appropriate officer of the Borrower setting
forth details as to such Reportable Event, if any, given to the Pension Benefit
Guaranty Corporation (hereinafter called "PBGC") and (ii) promptly after receipt
thereof, a copy of any notice that the Borrower may receive from the PBGC
relating to the intention of the PBGC to determine any Plan or to appoint a
trustee to administer any Plan.
(m) If a Change in Control (as hereinafter defined) shall occur, the
Bank shall have the right, by written notice given to the Borrower not earlier
than ten (10) nor later than twenty five (25) days after the first to occur of
(i) receipt by the Bank from the Borrower of written notice of the occurrence of
such Change in Control or (ii) the date on which Bank, having otherwise obtained
actual knowledge of such Change of Control, notifies the Borrower thereof, to
demand that the Borrower prepay the Note and/or all amounts owed or to be owed
pursuant to the Credit and Reimbursement Agreement. Five (5) business days after
receipt by the Borrower of demand for the prepayment of the Note and/or all
amounts owed or to be owed pursuant to the Credit and Reimbursement Agreement,
the Borrower shall pay to the Bank all principal and accrued interest on the
Note and/or on the Credit and Reimbursement Agreement. Promptly after obtaining
knowledge of the occurrence of any Change of Control (or of any proposed or
attempted Change of Control), the Borrower will notify the Bank thereof,
specifying in reasonable detail the facts and circumstances surrounding such
event. As used in this subparagraph a "Change in Control" shall be deemed to
have occurred upon the occurrence of the following:
If Xxxxxx Xxxxxxx and/or Xxxxxxx Xxxxxxx shall fail to be substantially
involved in the management and operations of the Borrower;
provided, however, that a Change of Control shall not be deemed to have occurred
if either Xxxxxx Xxxxxxx or Xxxxxxx Xxxxxxx shall have died or become
permanently disabled and the Borrower shall replace Xx. Xxxxxxx and/or Xx.
Xxxxxxx with a person or persons acceptable to the Bank within ninety (90) days
of their failure to be substantially involved in the management and operation of
the Borrower.
(n) The Borrower shall place notations upon its books of accounts
receivable to disclose assignment of all receivables to the Bank and the Bank's
security interest therein.
(o) Borrower covenants that it will keep all books and records
pertaining to its business and its accounts receivable at 0 Xxxx Xxxxxx, Xxxx
Xxxxxx, Xxx Xxxx 00000; and that
13
14
it will make available said books and said records for audit and inspection to
the Bank at any reasonable time during business hours, not only as a
prerequisite for each advance, but also for the purposes of audit and
inspection;
(p) Borrower agrees to maintain its primary banking relationship with
the Bank;
(q) The Borrower will forward to the Bank upon demand, but not less than
monthly, a report of all returns and credits to it, in form acceptable to the
Bank; and
V. Negative Covenants and Agreements of the Borrower. The Borrower covenants and
agrees that until the Note and interest thereon shall have been paid in full,
without the written consent of the Bank:
(a) The Borrower will not suffer or permit any Event of Default to
occur.
(b) The Borrower will not pledge or otherwise create or suffer the
imposition of any liens, security interests, charges or encumbrances upon any of
its assets pledged or encumbered to secure indebtedness owed to the Bank,
whether now owned or hereafter acquired, except pledges, security interests,
liens, charges or encumbrances specifically provided for in this Agreement. No
liens, security interests, charges or encumbrances will be permitted by the
holders of the Parent Notes on any of Borrower's assets, except for the pledge
of Borrower's capital stock. The Contact trademark shall not be pledged or in
anyway encumbered without the prior written consent of the Bank.
(c) The Borrower will not sell, lease, or otherwise dispose of all or
any substantial part of its assets to any other person, firm or corporation.
(d) Except as described in the Preliminary Offering Memorandum for the
Parent Notes, the Borrower will not change the general character of its business
or engage directly or indirectly in any other type of business.
(e) The Borrower will not without the written permission of the Bank,
violate any of the negative covenants and conditions contained in the Credit and
Reimbursement Agreement.
VI. Events of Default. Upon an Event of Default the Bank may, in its discretion,
accelerate the payment of all obligations owing by Borrower to Bank and demand
immediate payment thereof to Bank. Any one or more of the following shall
constitute an Event of Default:
14
15
(a) Failure to pay any part of the principal or interest on the Note,
the Credit and Reimbursement Agreement or any other financial obligation owed by
Borrower to Bank when due and payable and continuance of such failure for ten
(10) days.
(b) An Event of Default under any provision of the Loan
Documents or any other agreement or document from the Borrower to the Bank, or
any modification, amendment, extension or renewal thereof.
(c) Failure to observe or perform any covenant or agreement provided for
in this Agreement; provided, however, that in the event Borrower shall fail to
comply in a timely fashion with the financial reporting requirements of Section
IV(g) hereof, Borrower shall have twenty (20) days to cure such non-compliance
and provided further, that Borrower shall have thirty (30) days after receipt of
notice from Bank to cure any non-compliance by Borrower with the provisions of
paragraph IV(e) hereof regarding maintenance of insurance coverage.
(d) Falsity of any material representation or material warranty of the
Borrower contained in this Agreement; falsity of any material statement,
certificate, report, representation, or warranty made or furnished by the
Borrower or any officer thereof in connection with the making or the performance
of this Agreement, the Note or any Loan Document.
(e) Entry of final judgment for the payment of money in excess of Fifty
Thousand Dollars ($50,000.00) against the Borrower and with respect to which
Borrower is not insured, and failure to discharge such judgment or to have it
stayed pending appeal within sixty (60) days from the entry thereof or, if such
judgment shall be affirmed on appeal, failure to discharge such judgment within
sixty (60) days from the entry of such affirmance.
(f) Voluntary suspension of all or a substantial part of its businesses
as a going concern by the Borrower; insolvency or dissolution of the Borrower;
commencement of any proceedings under any bankruptcy or insolvency law by the
Borrower; an assignment for the benefit of creditors by the Borrower;
application for consent to the appointment of any receiver or trustee or
custodian for the Borrower of all or any substantial portion of the property of
the Borrower; or assignment to an agent authorized to liquidate any substantial
part of the assets of the Borrower.
(g) Commencement of any proceedings under any bankruptcy or insolvency
law against the Borrower, which proceedings are involuntary in nature and
failure to have said proceedings dismissed within sixty (60) days after the
commencement thereof; or issuance of a writ, warrant, attachment or similar
process against all or any substantial portion of the property of the Borrower
and failure to have such writ, attachment or similar process released or bonded
within sixty (60) days after its issuance.
15
16
(h) Failure to notify the Bank of a Change in Control as required by
subparagraph (m) of paragraph IV of this Agreement, or failure to prepay the
Note and/or any other indebtedness owed by Borrower to Bank within ten (10) days
of demand by the Bank to the Borrower pursuant to said subparagraph.
(i) A Reportable Event shall have occurred with respect to any Plan and,
within thirty (30) days after the reporting of such Reportable Event to the
Bank, the Bank shall have notified the Borrower, in writing, that (i) it has
made a determination that, on the basis of such Reportable Event, there are
reasonable grounds for the termination of such Plan by the PBGC or for the
appointment by the appropriate United States District Court of a trustee to
administer such Plan and as a result thereof, an event of default exists
hereunder; and (ii) a trustee shall be appointed by a United States District
Court to administer any Plan; or (iii) the PBGC shall institute proceedings to
terminate any Plan.
(j) Upon the occurrence and continuation of an Event of Default after
the expiration of any applicable notice or cure period, by Borrower or Decora
Industries, Inc. under any loan or lending agreement either corporation may have
with any other lender.
VII. Power of Substitution. Upon the occurrence of an Event of Default, the
Borrower hereby irrevocably appoints the Bank as its true and lawful attorney
with power of substitution in its name or otherwise for the Bank's sole use and
benefit, but at the Borrower's cost and expense, to exercise at any time and
from time to time, all or any of the following powers with respect to all or any
of the accounts:
(a) to demand, xxx for, collect, receive and give acquittance for any
and all monies due or to become due upon or by virtue thereof;
(b) to receive, take, endorse, assign and deliver any and all checks,
notes, drafts, documents and other negotiable and non-negotiable instruments and
chattel paper taken or received by the Bank in connection therewith;
(c) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto;
(d) to sell, transfer, assign or otherwise deal in or with the same or
the proceeds or avails thereof as fully and effectually as if the Bank were the
absolute owner thereof;
(e) to extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto;
(f) after default by the Borrower in the payment or performance of any
of the terms and conditions of this Agreement to notify the post office
authorities to change the address for
16
17
delivery of Borrower's mail to an address designated by the Bank and, after such
default, to receive, open and distribute all mail addressed to the Borrower,
retaining all mail relative to receivables and forwarding all other mail to the
Borrower; and
(g) to send requests for verification of receivables and to do all
things necessary to carry out this Agreement provided, however, the exercise by
the Bank of or failure to exercise any such authority shall in no manner affect
the Borrower's liability to the Bank hereunder, or under the Note and provided
further, that the Bank shall be under no obligation or duty to exercise any of
the powers hereby conferred upon it and it shall be without liability for any
act or failure to act, in connection with the collection if, or the preservation
of any rights under any one or more of the accounts. The Bank shall not be bound
to take any steps necessary to preserve rights in any instrument or chattel
paper against prior parties.
In addition, the Bank shall have all the rights and remedies of a
secured party under the Uniform Commercial Code (whether or not the Code is in
effect in the jurisdiction where rights and remedies are assured to close).
Borrower shall, at the request of the Bank, assemble the collateral at such
place or places as the Bank designates. In addition, the Borrower will provide
access to its business premises for the Bank or its agents for the purposes of
assembling and selling the collateral. The expenses of pursuing, searching for,
retaking, receiving, holding, storing, safeguarding, insuring, accounting for,
advertising, preparing for sale or lease, selling, leasing and the like, plus
attorney's fees, fees for certified public accountants, fees for auctioneers,
fees for brokers and/or appraisers, fees for security guards, fees for hazard
insurance premiums, or any other costs or disbursements whatsoever incurred by
or contracted for by the Bank in connection with disposition of the collateral
(including any of the foregoing incurred or contracted for by the Bank in
connection with any bankruptcy or insolvency proceedings involving the Borrower)
--shall all be chargeable to the collateral and then to the Borrower. The
Borrower shall remain liable for any deficiency resulting from a sale of the
collateral and shall pay any such deficiency to the Bank forthwith on demand,
and the Bank agrees to remit any surplus resulting therefrom after payment in
full of all obligations hereunder and such expenses of sale.
VIII. UCC Financing Statements. The Borrower hereby authorizes the Bank, at
Borrower's expense, to file any Financing Statements relating to any collateral
covered by this Agreement, without the signature of the Borrower as the Bank, at
its option, may deem appropriate.
IX. Waiver. No waiver by Bank of any default shall operate as a waiver of any
other default or of the same default on a future occasion. Borrower hereby
waives promptness by Bank in making any demand upon it and agrees that no delay
by Bank in exercising any of its rights hereunder shall be deemed to constitute
a waiver thereof. The powers and remedies given hereby and by the Loan
Documents, shall not be exclusive of any other powers or remedies
17
18
available to the Bank. No course of dealings between the Bank and the Borrower
or any other individual guarantor, and no delay on the part of the Bank in
exercising any rights with respect to any default shall operate as a waiver of
any rights of the Bank. Bank shall have the right to proceed against all or any
portion of the collateral covered or included in any Instrument of Collateral
Security, in any order. All rights and remedies granted Bank hereunder shall be
deemed concurrent and cumulative and not alternate remedies and Bank may proceed
with any number of remedies at the same time until all loans and financial
obligations of the Borrower to the Bank are satisfied in full. The exercise of
any one right or remedy shall not be deemed a waiver or release of any other
right or remedy and Bank, upon the occurrence of any event of default, may
proceed against the Borrower at any time, under any one or more of the
Instruments of Collateral Security, in any order and with any available remedy.
No waiver by the Bank will be effective unless it is in writing and then only to
the extent specifically stated. This Agreement cannot be changed or terminated
orally.
X. Survival of Representations, Warranties, Covenants and Agreements. All
representations and warranties, covenants and agreements in this Agreement or
any certificate or document delivered in connection with this Agreement or
pursuant hereto shall survive the making of the Loan provided for herein and the
delivery of the Note and the Loan Documents. Any partial invalidity of the
provisions hereof shall not invalidate the remaining portions hereof.
XI. Notices and Demands. Any notices or demands required by this Agreement, the
Note or any other Loan Document, shall be in writing and delivered personally or
mailed to the party entitled to such notice or demand at the address set forth
below opposite its name, or at such other address as either party may notify the
other in writing:
Fleet National Bank 00 Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Decora, Incorporated Xxx Xxxx Xxxxxx
Xxxx Xxxxxx, Xxx Xxxx 00000
Any notice sent by the Bank by registered or certified mail shall be deemed to
have been given and received within three (3) days of the date so mailed.
XII. Successors and Assigns. This Agreement, the Note and the Loan
Documents are binding upon and for the benefit of the respective
successors and assigns of the parties.
XIII. Pledge to Other Bank. Bank may at any time pledge all or any portion of
its rights under the Loan Documents including any portion of the Note to any of
the twelve (12) Federal Reserve Banks organized under Section 4 of the Federal
Reserve Act, 12 U.S.C. Section 341.
18
19
No such pledge or enforcement thereof shall release Bank from its obligations
under any of the Loan Documents.
XIV. Assignment Rights. Bank shall have the unrestricted right at any time or
from time to time, and without Borrower's consent, to assign all or any portion
of its rights and obligations hereunder to one or more banks or other financial
institutions (each, an "Assignee"), and Borrower agrees that it shall execute,
or cause to be executed, such documents, including without limitation,
amendments to this Agreement and to any other documents, instruments and
agreements executed in connection herewith as Bank shall deem necessary to
effect the foregoing. In addition, at the request of Bank and any such Assignee,
Borrower shall issue one or more new promissory notes, as applicable, to any
such Assignee and, if Bank has retained any of its rights and obligations
hereunder following such assignment, to Bank, which new promissory notes shall
be issued in replacement of, but not in discharge of, the liability evidenced by
the promissory note held by Bank prior to such Assignment and shall reflect the
amount of the respective commitments and Loans held by such Assignee and Bank
after giving effect to such assignment. Upon the execution and delivery of
appropriate assignment documentation, amendments and any other documentation
required by Bank in connection with such assignment, and the payment by Assignee
of the purchase price agreed to by Bank, and such Assignee, such Assignee shall
be a party to this agreement and shall have all of the rights and obligations of
Bank hereunder (and under any and all other guaranties, documents, instruments
and agreements executed in connection herewith) to the extent that such rights
and obligations have been assigned by Bank pursuant to the assignment
documentation between Bank and such Assignee, and Bank shall be released from
its obligations hereunder and thereunder to a corresponding extent.
XV. Participation. Bank shall have the unrestricted right at any time and from
time to time, and without the consent of or notice to Borrower, to grant to one
or more banks or other financial institutions (each, a "Participant")
participating interests in Bank's obligation to lend hereunder and/or any or all
of the loans held by Bank hereunder. In the event of any such grant by Bank of a
participating interest to a Participant, whether or not upon notice to Borrower,
Bank shall remain responsible for the performance of its obligations hereunder
and Borrower shall continue to deal solely and directly with Bank in connection
with Bank's rights and obligations hereunder. Bank may furnish any information
concerning Borrower in its possession from time to time
to prospective Assignees and Participants, provided that Bank shall require any
such prospective Assignee or Participant to agree in writing to maintain the
confidentiality of such information.
XVI. Setoff. Borrower hereby grants to Bank, a lien, security interest and right
of setoff as security for all liabilities and obligations to Bank, whether now
existing or hereafter arising, upon and against all deposits, credits,
collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of Fleet
Financial Group,
19
20
Inc., or in transit to any of them. At any time, without demand or notice, Bank
may set off the same or any part thereof and apply the same to any liability or
obligation of Borrower even though unmatured and regardless of the adequacy of
any other collateral securing the Loan. ANY AND ALL RIGHTS TO REQUIRE BANK TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE Loan, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
XVII. Usury. All agreements between Borrower and Bank are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to Bank for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest,
then the Note shall be governed by such new law as of its effective date. In
this regard, it is expressly agreed that it is the intent of Borrower and Bank
in the execution, delivery and acceptance of Note to contract in strict
compliance with the laws of the State of New York from time to time in effect.
If, under or from any circumstances whatsoever, fulfillment of any provision
hereof or of any of the Loan Documents at the time of performance of such
provision shall be due, shall involve transcending the limit of such validity
prescribed by applicable law, then the obligation to be fulfilled shall
automatically be reduced to the limits of such validity, and if under or from
circumstances whatsoever Bank should ever receive as interest any amount which
would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the principal balance evidenced
hereby and not to the payment of interest. This provision shall control every
other provision of all agreements between Borrower and Bank.
XVIII. Waiver of Jury Trial. BORROWER AND BANK MUTUALLY HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE NOTE OR ANY OTHER LOAN DOCUMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY. THIS WAIVER CONSTITUTES A
MATERIAL INDUCEMENT FOR BANK TO ACCEPT THIS AGREEMENT AND MAKE THE Loan.
XIX. Corrective Documents. Upon receipt of an affidavit of an officer of Bank as
to the loss, theft, destruction or mutilation of the Note or any other Loan
Document which is not of public record, and, in the case of any such loss,
theft, destruction or mutilation, upon surrender and
20
21
cancellation of such Note or other Loan Document. Borrower will issue, in lieu
thereof, a replacement Note or other Loan Document in the same principal amount
thereof and otherwise of like tenor.
XX. No Further Obligation to Lend. Nothing herein contained shall obligate the
Bank to make any loan or advance to the Borrower under this Agreement after May
1, 2001.
XXI. Governing Law; Jurisdiction; Certain Consents and Waivers. This Agreement
and all Loan Documents shall be governed by and construed, interpreted and
enforced in accordance with the laws of the State of New York, without regard to
principles of conflict of laws. Each action and other legal proceeding relating
to the Loan Documents commenced by the Bank may be litigated in any court that
is either a court of record of the State of New York or a court of the United
States located in the State of New York. Each such action and other legal
proceeding not commenced by the Bank shall be litigated in such a court.
Borrower (a) consents in each action an other legal proceeding relating to any
Loan Document commenced by the Bank to the personal jurisdiction of any court
that is either a court of record of the State of New York or a court of the
United States located in the State of New York, (2) waives each objection to the
laying of venue of any such action or other legal proceeding, (3) waives
personal service of process in each such action and other legal proceeding, and
(4) consents to the making of service of process in each such action and other
legal proceeding by registered mail directed to Borrower at the last address of
Borrower shown in the records relating to the Loan Documents, with such service
of process to be deemed completed five days after the mailing thereof.
21
22
IN WITNESS WHEREOF, the parties have caused this Instrument to be
executed by their duly authorized officers as of the day and year first above
written.
DECORA, INCORPORATED d/b/a
DECORA MANUFACTURING
By: ________________________
Name: ______________________
Title: _____________________
FLEET NATIONAL BANK
By: ________________________
Xxxxx X. Xxxxxx
Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this 27th day of April, 1998, before me personally appeared
Xxxxxxx X. Xxxxxxx, to me known, who being by me duly sworn, did
depose and say that he resides in Xxxxxxx Park, New York, that he
is the Vice President, Administration Secretary of DECORA,
INCORPORATED d/b/a DECORA MANUFACTURING, the corporation described
in and which executed the above instrument; and that he signed his
name thereto by order of the Board of Directors of said
corporation.
------------------------------
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF ALBANY )
On this 27th day of April, 1998, before me personally appeared
Xxxxx X. Xxxxxx, to me known, who being by me duly sworn, did
depose and say that he resides in Valatie, New York, that he is a
Vice President of FLEET NATIONAL BANK, the corporation described in
and
22
23
which executed the above instrument; and that he signed his name thereto by
order of the Board of Directors of said corporation.
------------------------------
Notary Public
23
24
EXHIBIT A
LOAN FORMULA CERTIFICATE
24
25
RIDER A
PENDING AND THREATENED LITIGATION
25
