Bodyguard Xxxxxxx.xxx, Inc.
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
FINANCING AGREEMENT
January 18, 2001
Gentlemen:
The following terms, covenants and conditions (the "Agreement") shall be
applicable to the financial accommodations described herein from NAVARRE
CORPORATION, a Minnesota corporation ("Navarre") to Bodyguard Xxxxxxx.xxx, Inc.,
a Delaware corporation ("Label"):
1. Navarre in its role as a distributor for Label may advance funds to third
parties or commit to pay third parties on behalf of Label for advertising,
manufacturing costs and other chargebacks. All such amounts due from Label to
Navarre shall be defined herein as the "Outstanding Credit Balance." Navarre's
agreement to advance funds to or make contractual commitments on behalf of Label
shall be solely discretionary and, among other things, are expressly conditioned
upon Label's timely performance of its obligations contained in the National
Distribution and Warehousing Agreement dated January 18, 2001, by and between
Label and Navarre (the "Distribution Agreement"). As used herein, "Outstanding
Credit Balance" shall be equal to the amount, if any, resulting from monies due
from Label to Navarre as a distributor at any time currently on an operating
basis, including, without limitation, advertising, manufacturing costs and other
chargebacks.
As set forth in the Distribution Agreement, Navarre is intended to be the
exclusive distributor for Label for all artists and categories of artists
described in the Distribution Agreement.
2. Navarre shall automatically recoup the Outstanding Credit Balance by applying
amounts otherwise due Label under the Distribution Agreement on a
dollar-for-dollar basis until the Outstanding Credit Balance is repaid in full.
Notwithstanding anything to the contrary contained herein, the entire balance of
the Outstanding Credit Balance shall be due and payable as specified in the
Distribution Agreement or, if not sooner made, immediately upon termination of
the Distribution Agreement.
Label's failure to make timely payment to Navarre of any Outstanding Credit
Balance within the time frame specified in the Distribution Agreement shall
constitute an "Event of Default" hereunder and shall entitle Navarre to exercise
any of its rights and remedies under the
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Distribution Agreement including, without limitation, Navarre's right to
immediately cease manufacturing, advertising and distribution of Label's
recordings.
3. Notwithstanding anything to the contrary contained herein or in the
Distribution Agreement, Navarre's agreement to advance funds or contract for
advertising, manufacturing costs and other chargebacks shall be solely at
Navarre's discretion.
(a) In addition, Navarre specifically represents that it will make
no such advances or commitments until the following conditions
have been satisfied: (i) seven (7) days have elapsed after Label
has provided to Navarre, and Navarre has reviewed and approved,
copies of any and all agreements between Label and any artists,
performers, or publishers relating to the recordings to be
distributed by Navarre and, if requested by Navarre, waiver and
release agreements signed by such artists, performers and
publishers as Navarre may request and (ii) Xxxxxxx X. Xxxxxx has
signed a resolution evidencing that Navarre's advance group has
approved the advance and (iii) Navarre has received the
exclusive letter of distribution.
(b) Label and Navarre shall have entered into a mutually acceptable
Distribution Agreement providing that the agreement may not be
terminated by Label if it is in default hereunder.
(c) Label and Navarre shall have entered into mutually acceptable
Manufacturing Agreement (the "MANUFACTURING AGREEMENT")
PROVIDING THAT THE agreement may not be terminated by Label if
it is in default hereunder.
4. As soon as Masters are available, Label shall deliver to Navarre two copies
of the Master of each recording created by Label or any artists under contract
with Label that are being distributed by Navarre, together with such other
reasonable documentation as Navarre may reasonably request.
5. Unless sooner terminated by either party pursuant to the provisions hereof,
the original term of this Agreement shall commence as of the date hereof and
continue thereafter until the Distribution Agreement has been terminated.
6. In order to induce Navarre to make financial accommodations to Label, Label
hereby warrants and represents to Navarre as follows:
(a) CORPORATE EXISTENCE, POWER AND AUTHORITY. Label is a corporation
duly organized and validly existing in the State of Delaware, and is
fully qualified to do business and in good standing in the State of
Delaware, and in every other jurisdiction wherein the nature of its
businesses or the character of its properties makes such qualification
necessary, and has all requisite power and authority to carry on its
businesses as now conducted and as presently proposed to be conducted.
Label has full power and authority to execute and deliver this
Agreement, and all other documents contemplated herein and therein
(collectively, the "Label Documents") and to incur and perform its
obligations hereunder
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and thereunder. Label Documents each constitute the legal, valid and binding
obligations of Label enforceable in accordance with their respective terms.
(b) LITIGATION. There is no action, suit or proceeding pending or, to the
knowledge of Label, threatened against or affecting Label which, if adversely
determined, would have a material adverse effect on the condition (financial or
otherwise), business, properties or assets of Label or which would question the
validity of Label Documents or any instrument, document or other agreement
related hereto or required hereby, or impair the ability of Label to perform its
material obligations under the foregoing agreements.
(c) LICENSES AND INFRINGEMENT. Label possesses adequate licenses, permits,
franchises, patents, copyrights, trademarks and trade names, or rights thereto,
to conduct its respective business substantially as now conducted and as
presently proposed to be conducted. There does not exist and there is no reason
to anticipate that there may exist, any liability to Label with respect to any
claim of infringement regarding any patent, copyright, trademark, trade name or
other intellectual property right relating to the "Collateral" (as defined in
the Distribution Agreement), which would have a material adverse effect on
Label's business.
(d) DEFAULT. Label is not in default of a material provision under any material
agreement, instrument, decree or order to which it is a party or by which it or
its respective property is bound or affected, except minor defaults which would
not in the aggregate HAVE A MATERIAL ADVERSE EFFECT ON LABEL'S BUSINESS.
(e) CONSENTS. No consent, approval, order or authorization of any governmental
authority or any third party is required in connection with the execution and
delivery of Label Documents, or any of the agreements or instruments herein
mentioned or the carrying out or performance of any of the transactions required
or contemplated hereby or thereby or, if required, such consent, approval, order
or authorization has been obtained by Label prior to the date hereof.
(f) TAXES. Label has filed all tax returns required to be filed and either paid
all taxes shown thereon to be due, including interest and penalties, which are
not being contested in good faith and by appropriate proceedings, or provided
adequate reserves for payment thereof, and none of them have any information or
knowledge of any objections to or claims for additional taxes in respect of
federal income or excess profits tax returns for prior years.
(g) TITLES, ETC. Each artist who receives any portion of an advance for any
album released by Navarre is under exclusive contract with respect to that album
and no party other than Navarre has any distribution rights in the album for
which the advance was paid except as otherwise specifically set forth herein and
in the Distribution Agreement. Except for the "Permitted Interests" described in
Section 7.(c) below, the security interest granted to Navarre by Label pursuant
to the Distribution Agreement, constitutes a valid and perfected first lien in
and to the collateral described therein and there are no undisclosed liabilities
or obligations relating thereto.
7. On and after the date hereof and until full payment of Label's obligations,
Label agrees that, unless Navarre shall otherwise consent in writing:
(a) TAXES AND CLAIMS. Label shall pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or upon
its respective income or profits, or upon any of its assets or
properties, prior to the date on which penalties attach thereto, and all
lawful claims which, if unpaid, might become a lien or charge upon the
collateral respective property or assets; provided, however, that Label
shall not be required to pay any such tax, assessment, charge, levy or
claim the payment of 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.
(b) MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS. Label shall maintain
its corporate existence and preserve all of its rights, privileges and
franchises necessary in the normal conduct of its business and conduct
its business in an orderly, efficient and regular manner.
(c) LIENS. Label will not create, incur, assume or suffer to exist any
mortgage, lease, deed of trust, pledge, lien, security interest, or
other charge or encumbrance of any nature on any of the collateral
described in the Distribution Agreement, now owned or hereafter
acquired, securing any indebtedness or obligation to Navarre, except
liens granted in favor of Navarre.
(d) PERMITS AND LICENSES. Label shall obtain and maintain all necessary
state, federal, local and private clearances, authorizations, permits
and licenses with respect to the business operations of Label,
including, without limitation, any licenses required in connection with
use or sale of the collateral described in the Distribution Agreement.
8. This Agreement and the Distribution Agreement shall be governed by and
construed in accordance with the laws of the State of Minnesota.
9. As used herein, the terms "default" or "Event of Default" shall include a
material default by Label under this Financing Agreement, or the Distribution
Agreement. All capitalized terms not otherwise defined herein shall be as
defined in the Distribution Agreement.
10. This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart.
11. All notices, consents, requests, demands and other communications hereunder
shall be given to or made upon the respective parties hereto at their respective
addresses specified below or, as to any party, at such other address as may be
designated by it in a written notice to the other party. All notices, requests,
consents and demands hereunder shall be effective when personally delivered or
duly deposited in the United States mails, certified or registered, postage
prepaid, or delivered to the telegraph company, addressed as aforesaid.
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with a copy to:
IF TO NAVARRE with a copy to:
Navarre Corporation Winthrop & Weinstine, P.A.
0000 00xx Xxxxxx Xxxxx 0000 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxx 00000 00 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
IF TO LABEL: with a copy to:
Xxxx Xxxxx Winthrop & Weinstine, P.A.
Bodyguard Xxxxxxx.xxx, Inc. 3000 Xxxx Xxxxxxxx Plaza
138 Xxxxxx 00 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Please indicate your acceptance of the terms and conditions of this Agreement by
signing it in the space provided below.
NAVARRE CORPORATION BODYGUARD XXXXXXX.XXX, INC.
By: /s/ Illegible By: /s/ Xxxx Xxxxx
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Its CFO Its President
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