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Exhibit 10.10
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AMENDED AND RESTATED
CREDIT AGREEMENT
among
▇▇▇▇▇▇▇, INC.,
U.S. LOCK CORPORATION
and
FIRST UNION NATIONAL BANK
as of January 6, 1999
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TABLE OF CONTENTS
Page
Preliminary Statement...........................................................................................1
ARTICLE I DEFINITIONS...........................................................................................1
ARTICLE II TERM LOAN............................................................................................8
2.1 Availability of Term Loan...................................................................8
2.2 Term Loan Interest..........................................................................8
2.3 Term Loan Principal.........................................................................9
2.4 Purpose of Term Loan........................................................................9
2.5 Indemnification and Additional Costs........................................................9
ARTICLE III LINE OF CREDIT.....................................................................................10
3.1 Line of Credit.............................................................................10
3.2 Letters of Credit; Bank Acceptances........................................................10
3.3 Line of Credit Interest....................................................................12
3.4 Repayment of Line of Credit................................................................13
3.5 Line of Credit Advances....................................................................13
3.6 Purpose of Line of Credit Loans............................................................13
3.7 Reductions in Availability.................................................................13
3.8 Fees.......................................................................................14
3.9 Indemnification and Additional Costs.......................................................14
ARTICLE IV ADDITIONAL PROVISIONS RELATING TO THE LOANS.........................................................14
4.1 Interest Rate Limitation...................................................................14
4.2 Payments to Principal Office...............................................................15
4.3 Default Rate...............................................................................15
4.4 Limitation of All Advances.................................................................15
4.5 Indebtedness...............................................................................15
4.6 Special Loan Account.......................................................................15
4.7 Prepayments................................................................................15
4.8 Unavailability of Interest Rate............................................................16
ARTICLE V CONDITIONS TO LOANS..................................................................................16
5.1 Representations and Warranties.............................................................16
5.2 Execution of Credit Documents..............................................................16
5.3 Performance of Obligations.................................................................16
5.4 Documentation..............................................................................16
5.5 Payment of Commitment Fee..................................................................17
5.6 Events of Default or Unmatured Events of Default...........................................17
5.7 Closing of Acquisition.....................................................................17
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ARTICLE VI REPRESENTATIONS AND WARRANTIES......................................................................17
6.1 Incorporation..............................................................................17
6.2 Power and Authority........................................................................18
6.3 Indebtedness...............................................................................18
6.4 Litigation.................................................................................18
6.5 Tax Returns................................................................................18
6.6 Contract or Restriction....................................................................19
6.7 ERISA Requirement..........................................................................19
6.8 Possession of Franchises and Licenses......................................................19
6.9 Governmental Authorization.................................................................19
6.10 Financial Condition; Capital Expenditures..................................................19
6.11 Compliance with Laws.......................................................................20
6.12 Regulation U...............................................................................20
6.13 Material Facts.............................................................................20
6.14 Claims and Offsets.........................................................................21
6.15 Intent and Effect of Transactions..........................................................21
6.16 U.S. Lock Liabilities......................................................................21
ARTICLE VII COVENANTS..........................................................................................21
7.1 Reports, Certificates and Other Information................................................22
7.2 Use of Loan Proceeds.......................................................................23
7.3 Maintenance of Business and Properties.....................................................23
7.4 Insurance..................................................................................23
7.5 Notices....................................................................................23
7.6 Inspections................................................................................24
7.7 Debt.......................................................................................24
7.8 Liens......................................................................................24
7.9 Dividends..................................................................................24
7.10 Merger, Sale, Etc..........................................................................24
7.11 Loans and Other Investments................................................................25
7.12 Change in Business.........................................................................25
7.13 Transactions with Affiliates...............................................................25
7.14 No Sale, Leaseback.........................................................................25
7.15 Margin Stock...............................................................................25
7.16 Payment of Taxes, Etc......................................................................25
7.17 Subordination..............................................................................25
7.18 Compliance; Hazardous Substances...........................................................26
7.19 Subsidiaries...............................................................................26
7.20 Withholding Taxes..........................................................................26
7.21 Deposit Accounts...........................................................................26
7.22 ERISA......................................................................................26
7.23 Financial Covenants........................................................................27
7.24 Management; Control........................................................................28
7.25 Further Assurances.........................................................................28
7.26 Maintain Existence and Rights..............................................................28
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ARTICLE VIII EVENTS OF DEFAULT.................................................................................28
8.1 Events of Default..........................................................................28
8.2 Remedies...................................................................................30
ARTICLE IX MISCELLANEOUS.......................................................................................31
9.1 Waiver of Default..........................................................................31
9.2 Amendments and Waivers.....................................................................31
9.3 Notices....................................................................................31
9.4 No Waiver; Cumulative Remedies.............................................................33
9.5 Survival of Representations, Warranties and Agreements.....................................33
9.6 Set Off by Bank............................................................................33
9.7 Entire Agreement...........................................................................33
9.8 Enforceability.............................................................................33
9.9 Reimbursement of Expenses..................................................................33
9.10 Execution of Counterparts..................................................................34
9.11 Stamp or Other Taxes.......................................................................34
9.12 Waiver of Jury Trial; Arbitration..........................................................34
9.13 Governing Law..............................................................................35
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EXHIBITS
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Exhibit 1.1(A) Permitted Debt
Exhibit 1.1(B) Permitted Liens
Exhibit 7.13 Transactions with Affiliates
AMENDED AND RESTATED CREDIT AGREEMENT
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This Amended and Restated Credit Agreement made and entered into as of
January 6, 1999 (together with any renewals, extensions, amendments,
modifications, restatements and/or supplements hereto, this "Agreement"), among
▇▇▇▇▇▇▇, INC., a Delaware corporation (the "Borrower"), U.S. LOCK CORPORATION, a
newly-formed Delaware corporation (the "Co-Borrower") and FIRST UNION NATIONAL
BANK, a national banking association (the "Bank").
PRELIMINARY STATEMENT
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WHEREAS, Borrower and Bank are parties to that certain Revolving Credit
Agreement dated April 3, 1996 (the "Existing Agreement"), pursuant to which Bank
made available to Borrower a US$15,000,000 line of credit (the "Line of
Credit"); and
WHEREAS, Borrower and Co-Borrower have requested that Bank (i) make
available a term loan to finance Co-Borrower's acquisition of the assets of the
U.S. Lock division of WOC Inc., from WOC Inc. (the "Term Loan") and (ii) to
extend the maturity of the Line of Credit until December 31, 2001.
WHEREAS, subject to the terms and conditions set forth herein, Bank has
agreed to make available the Term Loan and to extend the maturity of the Line of
Credit;
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged by each of Borrower, Co-Borrower
and Bank, and subject to the terms and conditions set forth herein, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
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For purposes of this Agreement, all terms used herein without
definition that are defined in the Uniform Commercial Code, as enacted and in
force from time to time in the State of Florida (the "Uniform Commercial Code"),
have the same meanings
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herein as they have in the Uniform Commercial Code. In addition, the following
terms have the following meanings:
1.1 "ACQUISITION PURCHASE PRICE" means the cash purchase price paid by
Borrower plus the amount of the liabilities assumed by Co-Borrower in connection
with the acquisition (the "Acquisition") of the assets of U.S. Lock, a division
of WOC Inc., from WOC Inc., such purchase price to be supported by documentation
acceptable to Bank and to be due and payable at the closing of the Acquisition.
1.2 "ADVANCE" or "ADVANCES" (as the context may require) means an
advance of loan monies to Borrower and Co-Borrower pursuant to this Agreement on
any given Business Day.
1.3 "AFFILIATE" or "AFFILIATES" (as the context may require) means, as
to any Person, (i) any individual related by blood or marriage and (ii) any
corporation or other Person directly or indirectly owned or controlled by,
owning or controlling or under common ownership or control with such Person.
"Control" shall be deemed to include, but shall not be limited to, the power,
directly or indirectly, to direct or cause the direction of the management or
policies of another Person, whether through ownership, common directors,
trustees or officers, by contract or otherwise.
1.4 "BANKRUPTCY CODE" means Bankruptcy Reform Act of 1978, as amended,
11 U.S.C. Section 101, ET SEQ.
1.5 "BORROWER" means ▇▇▇▇▇▇▇, Inc., a Delaware corporation.
1.6 "BUSINESS DAY" means a day on which Bank's Principal Office is open
for business; and "LONDON BUSINESS DAY" means any Business Day that is also a
day on which banking institutions in London, England are open for business.
1.7 "CO-BORROWER" means U.S. Lock Corporation, a Delaware corporation.
1.8 "CREDIT DOCUMENT" or "CREDIT DOCUMENTS" (as the context may
require) means this Agreement, the Notes, and all other affidavits, documents,
instruments, certificates or agreements to be delivered pursuant to the terms
hereof or otherwise evidencing the Loans or any other indebtedness of Borrower
or Co-Borrower to Bank, other than swap agreements (as defined in 11 U.S.C.
Section 101) with Bank or its Affiliates.
1.9 "ERISA" means the Employee Retirement Income Security Act of 1974,
together with all amendments from time to time thereto, including any rules or
regulations promulgated thereunder.
1.10 "EVENT OF DEFAULT" shall have the meaning specified in ARTICLE
VIII hereof.
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1.11 "EXECUTIVE OFFICER" means any one of the chief executive officer,
executive vice president, the chief financial officer or the chief operating
officer of Borrower or Co-Borrower.
1.12 "GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means the then
prevailing principles and practices of the accounting profession conforming to
the standards of the American Institute of Certified Public Accountants.
1.13 "INDEBTEDNESS" of a Person means all indebtedness including,
without limitation, (a) indebtedness for borrowed money; indebtedness for (or
deferred purchase price in connection with) the acquisition of property or
assets; indebtedness obligations evidenced by debentures, notes or other similar
instruments; reimbursement or other similar obligations arising in connection
with letters of credit (whether drawn or undrawn), surety bonds or reimbursement
obligations therefor; and indebtedness of third parties secured by any lien,
pledge or other encumbrance on the property or assets of the Person in question,
whether or not such indebtedness is assumed; (b) all liability by way of
endorsements (other than for collection or deposit in the ordinary course of
business); (c) all guarantees of indebtedness (including any agreement,
contingent or otherwise, to purchase any obligation representing such
indebtedness or property constituting security therefor, or to advance or supply
funds for such purpose or to maintain working capital or any other balance sheet
or income statement condition, or otherwise to assure a creditor against loss in
respect of indebtedness or obligations of others, or any other arrangement in
substance affecting any of the foregoing); (d) liabilities in respect of
unfunded vested benefits under plans covered by Title IV of ERISA; and (e)
obligations as lessee under leases which shall have been or should be, in
accordance with Generally Accepted Accounting Principles, recorded or classified
as capital leases or financing leases.
1.14 "INTEREST PERIOD" means (i) in the case of Advances bearing
interest calculated on the basis of the LIBOR Market Index Rate, one (1) month,
and (ii) in the case of Advances bearing interest calculated on the basis of the
LIBOR Rate, any one of (1) month, three (3) months, or six (6) months, as
selected by Borrower on the date of the initial Advance hereunder and,
thereafter, on the third Business Day immediately preceding the last day of each
Interest Period, PROVIDED, FURTHER, that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(a) If any Interest Period otherwise would end on a day
which is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless such Business Day falls in another calendar
month, in which case such Interest Period shall end on the next preceding
Business Day; and
(b) Any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.
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1.15 "IRC" means the Internal Revenue Code of 1986, as amended from
time to time.
1.16 "LIBOR MARKET INDEX RATE," for any day, means the rate (rounded to
the next higher 1/100 of 1%) for one-month United States dollar-denominated
deposits as reported (or if not so reported, then as determined by Bank from
another recognized source of interbank quotation) on Telerate page 3750 as of
11:00 a.m., London time, for such day; PROVIDED that if such day is not a London
Business Day, then for the immediately preceding London Business Day.
1.17 "LIBOR RATE", for any day, means the rate (rounded to the next
higher 1/100 of 1%) for United States dollar-denominated deposits of that many
months' maturity as reported (or if not so reported, then as determined by Bank
from another recognized source of interbank quotation) on Telerate page 3750 as
of 11:00 a.m., London time, on the second London Business Day before the
relevant Interest Period begins, adjusted for reserves by dividing that rate by
1.00 minus the LIBOR Reserve.
1.18 "LIBOR RESERVE" means the maximum percentage reserve requirements
(rounded to the next higher 1/100 of 1% and express as a decimal) in effect for
any day during the Interest Period under the Federal Reserve Board's Regulation
D for Euro currency Liabilities as defined therein.
1.19 "LIENS" means any mortgage, pledge, encumbrance, statutory lien or
other lien arising by operation of law, security interest, trust arrangement,
financing, lease, collateral assignment or other encumbrance, or any segregation
of assets or revenues (whether or not constituting a security interest) with
respect to any present or future assets, revenues or rights to the receipt of
income of the Person referred to in the context in which the term is used.
1.20 "LINE OF CREDIT" means the line of credit in the original
principal amount of US$15,000,000 made available hereunder to finance general
working capital needs of Borrower and Co-Borrower, the terms of borrowing for
which are set forth in ARTICLE III of even date herewith.
1.21 "LINE OF CREDIT NOTE" means that certain promissory note made by
Borrower and Co-Borrower to and in favor of Bank in the original principal
amount of US$15,000,000, evidencing the obligations of Borrower and Co-Borrower
arising with respect to the Line of Credit together with any renewals,
modifications, restatements, supplements, extensions or amendments thereto.
1.22 "LOANS" means collectively, the loans from Bank to Borrower and
Co-Borrower evidenced by the Notes and the other Credit Documents.
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1.23 "MATURITY DATE" means (i) with respect to the Term Loan, December
31, 2005 and, (ii) with respect to the Line of Credit, December 31, 2001;
PROVIDED, HOWEVER, that Bank may, on one or more occasions and in its sole and
absolute discretion, extend the Maturity Date in effect with respect to the Line
of Credit for an additional one year period by providing written notice to
Borrower of each such election to extend the Maturity Date.
1.24 "MAXIMUM LINE OF CREDIT COMMITMENT" means US$15,000,000 LESS the
amount of all Optional Reductions made pursuant to SECTION 3.7.
1.25 "NOTE" or "NOTES" (as the context may require) means either or
both of the Term Loan Note and the Line of Credit Note.
1.26 "OPTIONAL REDUCTION" or "OPTIONAL REDUCTIONS" (as the context may
require) means any or all permanent reductions in the Line of Credit pursuant to
SECTION 3.7.
1.27 "PERMITTED DEBT" means (a) all obligations now or hereafter owed
to Bank by Borrower or Co-Borrower under the terms of the Credit Documents, or
arising out of the transaction described herein; and (b) any other Indebtedness
listed on EXHIBIT 1.1(A) hereto, and any extensions, renewals, replacements,
modifications and refundings of any such Indebtedness if, and to the extent,
permitted by EXHIBIT 1.1(A); PROVIDED, HOWEVER, that the principal amount of
such Indebtedness may not be increased from the amount permitted by such
exhibit; and (c) such other Indebtedness as Bank may consent to in writing from
time to time.
1.28 "PERMITTED INVESTMENTS" means:
(a) Purchases of direct obligations of the federal
government or obligations unconditionally guaranteed by the federal government;
(b) Deposits in federally-insured commercial banks having
capital and surplus exceeding $250 million;
(c) Commercial paper of any U.S. corporation having the
highest rating then given by ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poors
Corporation;
(d) Endorsement of negotiable instruments for collection in
the ordinary course of business;
(e) Investments in bona fide interest rate and currency
hedging agreements to the extent reasonably necessary to eliminate or reduce
interest rate and/or foreign exchange risk;
(f) Reputable money market funds;
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(g) Loans and advances to employees for relocation expenses
and other needs not to exceed $250,000 at any time outstanding in the aggregate;
(h) Investments in entities (including Subsidiaries and
joint ventures) not exceeding, in aggregate book value, ten percent (10%) of the
Tangible Net Worth of Borrower measured at the time of each such investment; and
(i) Purchase of the assets of U.S. Lock, a division of WOC
Inc.
1.29 "PERMITTED LIENS" means:
(a) Liens for taxes and other statutory Liens, Liens of
carriers, warehousemen, landlords, mechanics, materialmen, laborers, employees
or suppliers, and similar Liens arising out of operation of law so long as the
obligations secured thereby are not past due or are being contested as permitted
herein;
(b) Liens described on EXHIBIT 1.1(B) hereto;
(c) Liens arising in the ordinary course of business in
favor of custom and revenue authorities to secure payment of custom duties;
(d) Security for payment of worker's compensation or other
insurance or social security obligations;
(e) Security for performance of tenders, contracts (other
than contracts for the payment of moneys) or leases entered into in the ordinary
course of business;
(f) Deposits for sewer, public or statutory obligations, or
in lieu of surety, performance or appealed bonds entered into in the ordinary
course of business; and
(g) Such other Liens as Bank may consent to in writing from
time to time.
1.30 "PERSON" means any individual, firm, corporation, company,
partnership, trust, trustee, agent, employee, organization, association or
entity.
1.31 "PRIME RATE" means the rate of interest per annum announced by
Bank from time to time to be its commercial prime rate, IT BEING UNDERSTOOD that
such rate is one of several rates used by Bank and is not represented or
intended necessarily to be the lowest or most favorable rate for any particular
type or category of customer or loan; and IT BEING FURTHER UNDERSTOOD that any
change in the Prime Rate shall be effective as of the Business Day on which such
change is announced.
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1.32 "PRINCIPAL OFFICE" means the office of Bank at First Union
National Bank Building, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such
other address as Bank may from time to time designate by notice to Borrower.
1.33 "REVOLVING CREDIT PERIOD" means the period commencing on the date
of this Agreement and terminating on the Maturity Date.
1.34 "SALE" means any sale, transfer, assignment, or other disposition,
whether or not for value or for fair value, and regardless of the consideration
(cash, property or otherwise), if any, transferred therefor.
1.35 "SUBSIDIARY" means any corporation, partnership or other Person in
which Borrower (or other Person as the context may require), directly or
indirectly, through ownership of other entities or otherwise, owns more than
fifty percent (50%) of any class of stock, capital or income interest, equity
interest or other beneficial interest, or which is effectively controlled by
Borrower or such other Person.
1.36 "TANGIBLE NET WORTH" means THE EXCESS OF total assets OVER total
liabilities, with total assets and Total Liabilities each to be determined in
accordance with Generally Accepted Accounting Principles consistently applied,
EXCLUDING, HOWEVER, from the determination of total assets (a) all assets that
would be classified as intangibles under Generally Accepted Accounting
Principles, including, without limitation, goodwill (whether representing the
excess of cost over book value of assets acquired or otherwise), organizational
expenses, trademarks, trade names, copyrights, service marks, brand names,
patents, patent applications, franchises, other intellectual property rights and
licenses and rights in any thereof, (b) treasury stock, [(c) reserves for
depreciation, depletion, obsolescence or amortization of properties of Borrower,
(d) additions to net worth arising from revaluation of fixed or intangible
assets of Borrower,]* (e) amounts owed to Borrower by any Affiliate and (f)
deferred charges, including without limitation unamortized debt discount and
expense, experimental expenses and developmental expenses.
1.37 "TAX" or "TAXES" (as the context may require) of a Person means
any federal, state, county, local, or other tax (including, without limitation,
income, profits, estimated, excise, sales, use, occupancy, gross receipts,
franchise, ad valorem, severance, production, transfer, withholding, employment
and payroll-related, real estate and property taxes, import duties, alternative
minimum tax and other similar governmental charges and assessments) due from or
in respect of such Person, and including interest, additions to tax or interest,
and penalties with respect thereto.
1.38 "TAXING AUTHORITY" means any governmental or regulatory body with
jurisdiction over matters relating to the payment of Taxes.
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1.39 "TERM LOAN" means the term loan in the original principal amount
of the lesser of (i) the Acquisition Purchase Price, and (ii) US$33,000,000, the
terms of borrowing for which are set forth in ARTICLE II.
* This provision was in the original agreement. Consider its
applicability for any transactions utilizing this Agreement as a model
form.
1.40 "TERM LOAN NOTE" means that certain promissory note of even date
herewith made by Borrower and Co-Borrower to and in favor of Bank in the
original principal amount of US$33,000,000, evidencing the obligations of
Borrower and Co-Borrower arising with respect to the Term Loan, together with
any renewals, modifications, restatements, supplements, extensions or amendments
thereto.
1.41 "TOTAL LIABILITIES" means all liabilities of Borrower, including
Indebtedness, capitalized leases, synthetic leases, and all reserves for
deferred taxes and other deferred sums appearing on the liabilities side of the
balance sheet, in accordance with Generally Accepted Accounting Principles
applied on a consistent basis, but excluding debt fully subordinated to Bank, on
terms and conditions acceptable to Bank.
1.42 "UNMATURED EVENT OF DEFAULT" means the occurrence of any event
that with the giving of notice, the lapse of time or both would constitute an
Event of Default.
1.43 "WAXMAN" means Waxman USA Inc. and/or Waxman Industries, Inc.
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ARTICLE II
TERM LOAN
2.1 AVAILABILITY OF TERM LOAN. Upon and subject to the conditions of
this Agreement and the other Credit Documents, Bank agrees to make available to
Borrower and Co-Borrower a term loan in an aggregate amount of the lesser of (i)
thirty-three million and no/100 United States dollars (US$33,000,000.00) and
(ii) the Acquisition Purchase Price. The Term Loan shall be advanced
contemporaneously with the closing of the Acquisition upon delivery of a written
request signed by an Executive Officer of Borrower and Co-Borrower specifically
requesting such Advance under the Term Loan and certifying that, to the best of
their knowledge after due inquiry, (1) no Event of Default and no Unmatured
Event of Default has occurred or is continuing under the terms of any Credit
Document, and (2) all representations and warranties contained in the Credit
Documents are true and correct as of the date of such requested Advance, and all
Obligations to be performed by Borrower and Co-Borrower under the Credit
Documents have been fully performed. Such request shall be given to Bank
together with substantiation of the Acquisition Purchase Price, satisfactory to
Bank, not later than 12:00 noon, Eastern Standard Time, at least one (1)
Business Day prior to the Business Day upon which the Advance is requested to be
advanced and (a) shall state the amount and date of the requested advance (which
date shall be the date of the closing of the Acquisition), (b) shall be, and
shall state that it is, requested for the purpose of paying the Acquisition
Purchase Price, and (c) shall be confirmed and verified to Bank's satisfaction.
Only one such Advance shall be made under the Term Loan.
2.2 TERM LOAN INTEREST.
(a) Borrower and Co-Borrower shall pay accrued and unpaid
interest on the outstanding principal amount of the term loan at a per annum
rate equal to the LIBOR Rate PLUS .825 percent (82 1/2 basis points). Interest
on the outstanding principal balance of the Term Loan Note shall be payable
quarterly on the last day of each January, April, July and October, commencing
January 31, 1999 and continuing thereafter until the entire principal balance is
paid in full; and
(b) Interest shall be calculated on the outstanding
principal balance of the Term Loan Note and shall be computed on the basis of a
year of three hundred sixty (360) days, calculated for the actual number of days
elapsed. The LIBOR Rate of interest shall be fixed for the Interest Period
selected by Borrower and Co- Borrower. On the date of the initial Advance
hereunder and on the third Business Day immediately preceding the last day of
each Interest Period, Borrower and Co-Borrower shall notify the Bank of their
selection of the duration of the Interest Period (either one month, three months
or six months), IT BEING UNDERSTOOD that if Borrower and Co-Borrower fail to
notify Bank in writing of their selection of such duration, then
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Borrower and Co-Borrower shall be deemed to have selected the one month LIBOR
Rate as the basis upon which the rate of interest hereunder shall thereafter be
calculated. During each Interest Period, the rate of interest so selected shall
apply continuously.
2.3 TERM LOAN PRINCIPAL. The outstanding principal balance of the Term
Loan Note (the amount advanced contemporaneously with the closing of the
Acquisition) shall be payable in 19 equal and consecutive quarterly payments of
1/20th of the original outstanding balance of the Term Loan commencing April 30,
2001 and continuing thereafter on the last day of each January, April, July and
October. All remaining unpaid principal of the Term Loan and all accrued and
unpaid interest thereon shall be due and payable in full on December 31, 2005.
2.4 PURPOSE OF TERM LOAN. The proceeds of the Term Loan shall be used
solely to purchase the assets of the U.S. Lock division of WOC Inc., from WOC
Inc. and to pay liabilities assumed in connection with the Acquisition.
2.5 INDEMNIFICATION AND ADDITIONAL COSTS. (a) INDEMNIFICATION. Borrower
indemnifies Bank against Bank's loss or expense in employing deposits as a
consequence (a) of Borrower's failure to make any payment when due under this
Agreement or the Note or (b) of any payment, prepayment or conversion of any
Advance on a date other than the last day of an Interest Period ("Indemnified
Loss or Expense"). The amount of such Indemnified Loss or Expense shall be
determined by Bank based upon the assumption that Bank funded 100% of the Loan
in the London interbank market. Any prepayment shall include accrued and unpaid
interest to the date of prepayment on the principal amount prepaid and all other
sums due and payable hereunder. All payments received on this Note may be
applied in such order as Bank in its sole discretion shall determine. The
quarterly principal installment shall not be reamortized following a partial
prepayment.
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ARTICLE III
LINE OF CREDIT
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3.1 LINE OF CREDIT. Upon the terms and subject to the conditions of
this Agreement and the other Credit Documents, and so long as no Event of
Default or Unmatured Event of Default shall have occurred and be continuing,
Bank agrees to make available to Borrower and Co-Borrower, during the Revolving
Credit Period, Advances under the Line of Credit in an aggregate amount not
exceeding at any time the sum of Fifteen Million and No/100 United States
Dollars (US $15,000,000). So long as no Event of Default or Unmatured Event of
Default shall have occurred and be continuing, Borrower and Co-Borrower may,
subject to the terms and conditions contained in the Credit Documents, borrow,
pay, reborrow and repay extensions of credit in respect of the Line of Credit
Note, any such payment or repayment to be made in immediately available funds.
Advances made to Borrower and Co-Borrower under the Line of Credit shall be
evidenced by the Line of Credit Note, which Borrower and Co-Borrower have
delivered on the date hereof. Pursuant to the Line of Credit Loan, Borrower and
Co-Borrower may borrow from Bank on a revolving basis, from time to time, during
the Revolving Credit Period, such aggregate amounts as Borrower and Co-Borrower
may request in accordance with the requirements of this Agreement; PROVIDED,
HOWEVER, that the aggregate principal sum of all amounts so requested and
outstanding at any one time under the Line of Credit Note shall never exceed
$15,000,000 LESS the amount of all Optional Reductions made pursuant to SECTION
3.7 and the amount of letters of credit or banker's acceptances issued pursuant
to SECTION 3.2. Upon the termination of the Revolving Credit Period, no
additional Advances will be made under the Line of Credit and the Line of Credit
Note shall be due and payable in full. Advances outstanding on the date hereof
under the Existing Agreement shall be deemed outstanding under this Agreement
and shall be subject to all of the terms and conditions hereof.
3.2 LETTERS OF CREDIT; BANK ACCEPTANCES.
(a) So long as no Event of Default occurs and is continuing
and subject to the limitations set forth herein, Bank will from time to time up
to and including the day which is three Business Days prior to the last day of
the Revolving Credit Period, issue, extend or renew documentary letters of
credit and/or banker's acceptances for the account of Borrower or Co-Borrower to
facilitate the purchase of inventory by Borrower or Co-Borrower; PROVIDED that
the maximum aggregate obligations of Bank under all letters of credit and
banker's acceptances plus the outstanding principal amount of the Line of Credit
shall not exceed the Maximum Loan Commitment. The availability of Advances under
the Line of Credit shall be reduced by outstanding obligations of Bank under any
letters of credit and banker's acceptances. All payments made by Bank under any
such letters of credit and banker's acceptances (whether or not Borrower or
Co-Borrower is the account party) and all fees, commissions, discounts and other
amounts owed to Bank in connection
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therewith, shall be deemed to be Advances under the Line of Credit Note.
Borrower and Co-Borrower shall complete and sign such applications and
supplemental agreements and provide such other documentation as Bank may
require. The form and substance of all letters of credit and banker's
acceptances, including expiration dates, shall be subject to Bank's approval.
Bank may charge a fee or commission for issuance, transfer, renewal or extension
of a letter of credit and banker's acceptance. If the Line of Credit shall
mature, including maturity upon acceleration, Borrower and Co-Borrower shall, on
demand, deliver to Bank good funds equal to 100% of Bank's maximum liability
under all outstanding letters of credit and banker's acceptances, to be held as
cash collateral for Borrower's and Co-Borrower's reimbursement obligations and
other Indebtedness.
(b) In order to induce Bank to issue letters of credit and
banker's acceptances, Borrower and Co-Borrower agree that neither Bank nor its
correspondents or agents shall be liable or responsible for, and Borrower's or
Co- Borrower's unconditional obligation to reimburse Bank for the obligations
shall not be affected by, any event or circumstance, including without
limitation: (i) the validity, enforceability, genuineness or sufficiency of
documents or of any endorsement thereon existing in connection with any letter
of credit or banker's acceptance, even if such documents should in fact prove in
any or all respects to be invalid, unenforceable, insufficient, fraudulent or
forged; (ii) any breach of contract or other dispute between Borrower or
Co-Borrower and any beneficiary of a letter of credit or holder of a draft
accepted by Bank; (iii) payment by Bank upon presentation of a draft or
documents which do not comply in any respect with the terms of such letter of
credit or draft; (iv) loss of or damage to any collateral; (v) the invalidity or
insufficiency of any endorsements; (vi) delay in giving or failure to give
notice of arrival or any other notice; (vii) failure of any instrument to bear
any reference or adequate reference to the letter of credit or draft or to
documents to accompany any instrument at negotiation; or (viii) failure of any
person to note the amount of any payment on the reverse of the letter of credit
or to surrender or take up the letter of credit or to forward documents in the
manner required by the letter of credit; or (ix) any other matter whatsoever
excepting only with respect to each of the foregoing items the gross negligence
(or negligence as to (iii) above), bad faith or willful misconduct of Bank or
its agent. Borrower and Co-Borrower agree that any action taken or permitted to
be taken by Bank or its agent under or in connection with any letter of credit
or banker's acceptance, including related drafts, documents, or property, unless
constituting gross negligence (or negligence as to (iii) above), bad faith or
willful misconduct on the part of Bank or its agent, shall be binding on
Borrower and Co-Borrower and shall not create any resulting liability to the
Borrower or Co-Borrower on the part of Bank or its agent. Borrower and
Co-Borrower will immediately examine (a) a copy of the letter of credit (and of
any amendments thereof) sent to them by Bank or its agent, and (b) all drafts,
instruments and documents delivered to them from time to time by Bank or its
agents, and Borrower and Co-Borrower will immediately notify Bank in writing of
any claim or irregularity.
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(c) Any letter of credit issued hereunder shall be governed
by the Uniform Customs of Practice for Documentary Credit (1993 Rev.),
International Chamber of Commerce Publication No. 500, as revised from time to
time, except to the extent that the terms of such publication would limit or
diminish rights granted to Bank hereunder or in any other Loan Document.
(d) Any letter of credit issued hereunder shall expire not
more than one year from the date it is first issued and, in any event, not later
than the Business Day immediately preceding the last day of the Revolving Credit
Period.
3.3 LINE OF CREDIT INTEREST.
(a) Borrower and Co-Borrower shall pay accrued and unpaid
interest on the outstanding principal amount of Advances under the Line of
Credit at a per annum rate equal to either (i) the LIBOR Rate PLUS .75% (75
basis points) or (ii) the LIBOR Market Index Rate PLUS .75% (75 basis points),
as the LIBOR Market Index Rate may change from day to day, as selected by
Borrower and Co-Borrower on the date of the initial closing of this Agreement
and from time to time in accordance herewith. Interest on the outstanding
principal balance of the Line of Credit Note shall be payable monthly on the
last day of each month, commencing January 31, 1999 and continuing thereafter
until maturity;
(b) On the date of the initial Advance hereunder and on the
third Business Day immediately preceding the last day of each Interest Period,
Borrower and Co-Borrower shall select either the LIBOR Market Index Rate or the
LIBOR Rate as the basis on which the rate of interest applicable to Advances
outstanding shall be calculated, IT BEING UNDERSTOOD that if Borrower and
Co-Borrower fail to notify Bank in writing of its selection of the basis (either
LIBOR Market Index Rate or LIBOR Rate) upon which the rate of interest hereunder
shall be calculated, upon the expiration of the then current Interest Period,
Borrower and Co-Borrower shall be deemed to have selected the LIBOR Market Index
Rate as the basis upon which the rate of interest hereunder shall thereafter be
calculated. If Borrower and Co-Borrower shall at any time select the LIBOR Rate
as the basis on which the rate of interest applicable to Advances outstanding
shall be calculated, then Borrower and Co-Borrower shall also notify the Bank of
its selection of the duration of the Interest Period (either one month, three
months or six months), IT BEING UNDERSTOOD that if Borrower and Co-Borrower fail
to notify Bank in writing of their selection of such duration, then Borrower and
Co-Borrower shall be deemed to have selected the one month LIBOR Rate as the
basis upon which the rate of interest hereunder shall thereafter be calculated.
During each Interest Period, the rate of interest so selected shall apply
continuously; and
(c) Interest shall be calculated on the outstanding
principal balance of the Line of Credit Note and shall be computed on the basis
of a year of three hundred sixty (360) days, calculated for the actual number of
days elapsed. When the LIBOR Market Index Rate is selected as the basis upon
which the rate of interest on
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outstanding Advances is to be calculated, such rate of interest shall be
adjusted daily to reflect the LIBOR Market Index Rate, and the LIBOR Market
Index Rate will continue as the basis upon which such rate of interest is
calculated until Borrower and Co-Borrower shall otherwise indicate in writing to
Bank. When the LIBOR Rate is selected as the basis upon which the rate of
interest on outstanding Advances is to be calculated, such rate of interest
shall be fixed for the Interest Period, IT BEING UNDERSTOOD that if Borrower and
Co-Borrower fail to notify Bank in writing of its selection of the LIBOR Rate as
the continuing basis upon which the rate of interest hereunder shall be
calculated, upon the expiration of such Interest Period, Borrower and
Co-Borrower shall be deemed to have selected the LIBOR Market Index Rate as the
basis upon which the rate of interest hereunder shall thereafter be calculated.
3.4 REPAYMENT OF LINE OF CREDIT. Unless due sooner pursuant to the
terms of ARTICLE VIII, Borrower and Co-Borrower shall make payment in full of
the entire outstanding principal amount of the Line of Credit Note and all
accrued and unpaid interest thereon on the Maturity Date.
3.5 LINE OF CREDIT ADVANCES. Any request for an Advance under the Line
of Credit Note shall be signed by an Executive Officer of Borrower and
Co-Borrower, and shall specifically request a borrowing of funds under the Line
of Credit and certify that, to the best of his or her knowledge after due
inquiry (1) no Event of Default and no Unmatured Event of Default has occurred
or is continuing under the terms of any of the Credit Documents, and (2) all
representations and warranties contained in the Credit Documents are true and
correct as of the date of such requested Advance, and all obligations to be
performed by Borrower and Co-Borrower under the Credit Documents have been duly
performed. Any request for an Advance shall be given to Bank not later than
12:00 noon, Eastern Standard Time, on the Business Day upon which the Advance is
requested to be advanced, (b) shall state the amount and date of the requested
Advance, (c) shall be, and shall state that it is, requested for a purpose that
is permitted by this Agreement, and (d) shall be confirmed and verified to
Bank's satisfaction.
3.6 PURPOSE OF LINE OF CREDIT LOANS. Any Advances made to Borrower and
Co-Borrower hereunder shall be used by Borrower and Co-Borrower solely to
provide working capital in the normal operation of Borrower's and Co-Borrower's
business. Without limiting the generality of the foregoing, Borrower and
Co-Borrower shall not use, and shall not allow any Affiliate to use, any of such
funds for any impermissible purpose.
3.7 REDUCTIONS IN AVAILABILITY. The principal amount available under
the Line of Credit may be permanently reduced, in whole or in part, at the
written request of Borrower and Co-Borrower (an "Optional Reduction"), PROVIDED
that the principal amount then outstanding under the Line of Credit Note shall
be equal to or less than the amount available under the Line of Credit as so
reduced.
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3.8 FEES. On the last day of each March, June, September and December,
commencing March 31, 1999, Borrower and Co-Borrower shall pay Bank an
availability fee equal to .10% (10 basis points) per annum on the average daily
unused available principal under the Line of Credit Note for the preceding
calendar quarter or portion thereof. Such fee shall be computed on the basis of
a year of three hundred sixty (360) days and calculated for the actual number of
days elapsed. The unused available principal under the Line of Credit Note for
any particular day shall be the Maximum Line of Credit Commitment less (i) the
outstanding advances under the Line of Credit Note, and (ii) the aggregate
amounts of letters of credit or banker's acceptances issued, pursuant to SECTION
3.2, and outstanding on such day.
3.9 INDEMNIFICATION AND ADDITIONAL COSTS. (a) INDEMNIFICATION. Borrower
and Co-Borrower indemnify Bank against Bank's loss or expense in employing
deposits as a consequence (a) of Borrower's or Co-Borrower's failure to make any
payment when due under this Agreement or the Note or (b) of any payment,
prepayment or conversion of any Advance on a date other than the last day of an
Interest Period ("Indemnified Loss or Expense"). The amount of such Indemnified
Loss or Expense shall be determined by Bank based upon the assumption that Bank
funded 100% of the Loan in the London interbank market. Any prepayment shall
include accrued and unpaid interest to the date of prepayment on the principal
amount prepaid and all other sums due and payable hereunder. All payments
received on this Note may be applied in such order as Bank in its sole
discretion shall determine.
ARTICLE IV
ADDITIONAL PROVISIONS RELATING TO THE LOANS
-------------------------------------------
4.1 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any of the Credit Documents, if any specified interest rate shall
exceed the maximum rate permitted by applicable law as in effect from time to
time, Borrower and Co-Borrower shall pay interest at the highest permissible
rate, which rate shall change as and when the highest permissible rate shall
change. If Borrower or Co-Borrower makes an interest payment under any of the
Credit Documents that exceeds the maximum amount of interest permitted by
applicable law, the excess of such payment above the maximum amount that
lawfully may be paid shall be refunded to Borrower or Co-Borrower, together with
interest thereon at the maximum lawful rate in effect at the time that such
interest was collected or, at Borrower's or Co-Borrower's option, credited
toward the payment of principal due under such Credit Document (as directed by
Borrower or Co-Borrower); or, if Borrower or Co-Borrower makes an interest
payment that exceeds the maximum amount of interest permitted by applicable law
and all principal thereunder shall have been previously or thereby paid in full,
such payment shall be deemed to have been the result of mathematical error and
Bank shall refund to Borrower or Co-Borrower, as applicable, the amount of such
payment that is in excess of the amount that lawfully may be paid.
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4.2 PAYMENTS TO PRINCIPAL OFFICE. Each payment of principal (including
any prepayment), interest and any other amount required to be paid to Bank
pursuant to this Agreement or in any other Credit Document shall be made to Bank
at its Principal Office, in immediately available funds constituting legal
tender in the United States of America for the payment of public and private
debts, on or before 1:00 p.m. Jacksonville, Florida, time on the date such
payment is due. IN CASE ANY SUCH PAYMENT IS NOT SO MADE, BANK IS HEREBY
AUTHORIZED TO, BUT SHALL NOT BE OBLIGATED TO, DEBIT THE AMOUNT OF SUCH PAYMENT
FROM ANY ONE OR MORE ACCOUNTS OF BORROWER OR CO-BORROWER WITH BANK.
4.3 DEFAULT RATE. In the event that any payment of principal of,
interest on or other amount with respect to this Agreement, the Notes or any of
the other Credit Documents is not made when due, such amount shall continue to
be an obligation of Borrower and Co-Borrower hereunder and shall bear interest
from the due date thereon until paid in full in the manner provided in SECTION
4.2 hereof, at a rate of interest per annum equal to the lesser of five percent
(5%) IN EXCESS OF the rate specified in the applicable Note or the highest rate
of interest permitted by law.
4.4 LIMITATION OF ALL ADVANCES. Notwithstanding any other provision of
this Agreement, no Advance hereunder shall be made if the conditions precedent
contained herein and in the other Credit Documents have not been fully satisfied
and performed. Bank shall not be obligated to honor any request for an Advance
if an Event of Default or an Unmatured Event of Default shall have occurred or
be continuing. In addition, Bank shall not be obligated to fund any amount in
excess of its lending limitation as determined by applicable law; IT BEING
UNDERSTOOD that the aggregate amount presently being lent to Borrower and
Co-Borrower, pursuant to this Agreement and under the circumstances presently
encompassing Borrower, Co- Borrower and Bank, is in compliance with the lending
limitations as are applicable to Bank. In the event that Bank is unable to honor
any request for an Advance under the Line of Credit as a result of lending
limitations imposed upon Bank, for purposes of calculating the availability fee
payable pursuant to SECTION 3.8, the unused available principal under the Line
of Credit Note shall be reduced by the amount of the Line of Credit that Bank is
unable to fund as a result of such limitation.
4.5 INDEBTEDNESS. At the time of each Advance made under or pursuant to
this Agreement, Borrower and Co-Borrower shall immediately become indebted to
Bank for the amount of such Advance, which Advance shall be made in immediately
available funds.
4.6 SPECIAL LOAN ACCOUNT. Bank may deposit the proceeds of the Loans
into an account of Borrower maintained with Bank.
4.7 PREPAYMENTS. Any prepayment of the Loans shall not affect
Borrower's or Co-Borrower's obligation to continue making payments under any
swap agreement
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(as defined in 11 U.S.C. Section 101) with Bank or its affiliates which will
remain in full force and effect notwithstanding any such prepayment.
4.8 UNAVAILABILITY OF INTEREST RATE. If, at any time, (a) Bank shall
determine that, by reasons of circumstances affecting foreign exchange and
interbank markets generally, LIBOR deposits in the applicable amounts are not
being offered to Bank, or (b) a new, or a revision in any existing, law or
interpretation or administration (including reversals) thereof by any government
authority, central bank or comparable agency shall make it unlawful or
impossible for Bank to honor its obligations under this Agreement, then (i)
Bank's obligation to make, maintain or convert into a LIBOR Rate shall be
suspended; and (ii) the applicable LIBOR Rate shall immediately be converted to
the Prime Rate for the remainder of the Interest Period.
ARTICLE V
CONDITIONS TO LOANS
-------------------
The obligation of Bank to make the Loans hereunder is subject to the
following conditions precedent, which must be satisfied at the time each Advance
is to be made hereunder:
5.1 REPRESENTATIONS AND WARRANTIES. All representations and warranties
made by Borrower and Co-Borrower in the Credit Documents or in any list,
schedule, document or certificate delivered to Bank in connection herewith or
therewith shall have been true as of the time made and shall be true on the date
of each Advance.
5.2 EXECUTION OF CREDIT DOCUMENTS. Borrower and Co-Borrower shall have
delivered all Credit Documents not previously executed and delivered to Bank,
duly executed by all of the parties thereto.
5.3 PERFORMANCE OF OBLIGATIONS. Borrower and Co-Borrower shall have
performed all of their obligations under the Credit Documents to be performed on
or before the date of the Advance, including, establishing and maintaining the
demand deposit account pursuant to SECTION 4.6.
5.4 DOCUMENTATION. All instruments and documents incident to the
issuance and delivery of the Credit Documents shall be satisfactory in form and
substance to Bank and counsel for Bank; and Bank shall have received:
(1) Two executed counterparts of each of the Credit
Documents not previously executed and delivered to
Bank (other than the Notes, as to which only one
counterpart shall be executed and delivered to
Bank);
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(2) Certified copies of the Articles of Incorporation,
By-Laws and resolutions of Borrower and Co-Borrower
authorizing the transactions contemplated by the
Credit Documents;
(3) Good standing certificate of Borrower and
Co-Borrower, certified by the Delaware Secretary of
State dated as of a date not more than fifteen (15)
days prior to the date hereof;
(4) UCC searches reasonably requested by Bank;
(5) All other documents that it may reasonably request;
and
(6) With respect only to the initial closing of this
Agreement, the favorable opinion of counsel for
Borrower and Co-Borrower, in form and substance
reasonably satisfactory to Bank and its counsel, as
to such matters as Bank may reasonably request.
5.5 PAYMENT OF COMMITMENT FEE. Borrower and Co-Borrower shall have paid
to Bank, in immediately available funds, a non-refundable commitment fee in the
amount of $82,500.00.
5.6 EVENTS OF DEFAULT OR UNMATURED EVENTS OF DEFAULT. No Event of
Default or Unmatured Event of Default shall exist.
5.7 CLOSING OF ACQUISITION. As to the Advance under the Term Loan only,
the Acquisition shall have been closed, subject only to the payment of the
purchase price by Co-Borrower with the proceeds of such Advance, and Bank shall
have received documentation with respect to such closing, and the use of such
proceeds, satisfactory to Bank in its reasonable discretion.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce Bank to enter into this Agreement and to commit to
make the Advances hereunder, Borrower and Co-Borrower hereby represent and
warrant to Bank (which representations and warranties shall survive the delivery
of the Credit Documents and the making of the Advances) as follows:
6.1 INCORPORATION. Each of Borrower and Co-Borrower is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware, has the corporate power to own its properties and to carry on
its business as now being conducted, is duly qualified as a foreign corporation
to do business in
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every jurisdiction in which the nature of its business makes such qualification
necessary, and is in good standing in all such jurisdictions.
6.2 POWER AND AUTHORITY. Each of Borrower and Co-Borrower has the legal
capacity and right, and is duly authorized under all applicable provisions of
law, to execute, deliver and perform each of the Credit Documents, and all
corporate and other action on the part of Borrower and Co-Borrower required for
the lawful execution, delivery and performance thereof has been duly taken. Each
of the Credit Documents, upon execution and delivery thereof, will be a valid
and binding obligation of Borrower and Co-Borrower, respectively, enforceable in
accordance with its respective terms. Neither the execution or delivery of the
Credit Documents, nor the fulfillment of or compliance with their provisions and
terms, will conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a violation of or default under any applicable law,
regulation, order, writ or decree, the Certificate of Incorporation or Bylaws of
Borrower or Co-Borrower, or any agreement or instrument to which Borrower or
Co-Borrower is now or hereafter becomes a party, or create any lien, charge or
encumbrance upon any of Borrower's or Co-Borrower's property or assets pursuant
to the terms of any agreement or instrument to which Borrower or Co-Borrower is
a party or by which Borrower or Co-Borrower or any of their properties are
bound.
6.3 INDEBTEDNESS. Neither Borrower nor Co-Borrower has any Indebtedness
other than or in excess of the amounts set forth in its most recent financial
statements or in EXHIBIT 1.1A hereto.
6.4 LITIGATION. There are no pending or, to the best of Borrower's or
Co- Borrower's knowledge, threatened actions or proceedings before any court,
arbitrator or governmental or administrative body or agency that could
materially adversely affect the properties, business or condition, financial or
otherwise, of Borrower or Co-Borrower, or in any way adversely affect or call
into question the power or authority of Borrower or Co-Borrower to enter into or
perform any of the Credit Documents or the validity or enforceability of any of
the Credit Documents.
6.5 TAX RETURNS. Borrower and Co-Borrower have filed all Tax returns,
statements, reports and forms (collectively, the "Returns") required to be filed
by it with any Taxing Authority in accordance with all applicable laws. Borrower
and Co-Borrower have timely paid or made provision for (in accordance with
Generally Accepted Accounting Principles) all Taxes shown as due and payable on
the Returns that have been filed, and will timely pay or make provisions for all
Taxes shown to be due on the Returns. There are no liens or other encumbrances
for Taxes upon the assets or properties of Borrower or Co-Borrower. There are no
outstanding agreements or waivers extending the statutory period of limitation
applicable to any Return required to be filed with respect to Borrower or
Co-Borrower. So long as any amounts are outstanding under the Notes, neither
Borrower nor Co-Borrower will request any extension of time to file any Return
unless such extension is not requested
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as a result of or in connection with a materially adverse event or circumstances
affecting Borrower that has not been previously disclosed to Bank in writing.
All Taxes which are required to be withheld or collected by Borrower or
Co-Borrower have been duly withheld or collected and, to the extent required,
have been paid to the proper Taxing Authority or properly deposited as required
by applicable law.
6.6 CONTRACT OR RESTRICTION. Neither Borrower nor Co-Borrower is a
party to or bound by any contract or agreement or is subject to any charter or
other corporate restrictions that could materially and adversely affect the
business, properties or condition, financial or otherwise, of Borrower or
Co-Borrower or adversely affect or call into question the power or authority of
Borrower or Co-Borrower to enter into or perform any of the Credit Documents or
the validity or enforceability of any of the Credit Documents.
6.7 ERISA REQUIREMENT. Neither Borrower nor Co-Borrower has incurred
any material accumulated funding deficiency within the meaning of ERISA or
incurred any material liability to the Pension Benefit Guaranty Corporation
established under ERISA (or any successor thereto under ERISA) in connection
with any employee pension benefit plan established or maintained by it or by any
Person under common control with it (within the meaning of Section 424(c) of the
IRC or of Section 4001(b) of ERISA), or in which its employees are entitled to
participate. No Reportable Event or prohibited transaction (each as defined in
ERISA) in connection with any such plan has occurred and is continuing, Borrower
and Co-Borrower are in compliance with all requirements of ERISA and there are
no circumstances that could cause the loss of any such plan's qualification
under Section 401(a) of ERISA.
6.8 POSSESSION OF FRANCHISES AND LICENSES. Borrower and Co-Borrower
possess all franchises, certificates, licenses, permits and other authorizations
from governmental subdivisions or regulatory authorities, free from
restrictions, that are necessary in any material respect for the ownership,
maintenance or operation of their properties and the conduct of their business
as presently conducted, and neither Borrower nor Co-Borrower is in violation of
any thereof.
6.9 GOVERNMENTAL AUTHORIZATION. No authorization, consent, approval,
exemption, franchise, permit, license or action of or filing with any
governmental or public body or authority is required to authorize, or is
required in connection with, the execution, delivery and performance by Borrower
and Co-Borrower of any of the Credit Documents or the performance of any of the
transactions contemplated hereby or thereby.
6.10 FINANCIAL CONDITION; CAPITAL EXPENDITURES. The financial
statements of Borrower as of September 30, 1998, as previously delivered to
Bank, have been prepared in accordance with Generally Accepted Accounting
Principles consistently applied, subject to year-end adjustments and footnotes,
and accurately reflect the financial condition of Borrower as of that date.
Since that date, there has not been
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any materially adverse change in the business, operations or financial condition
of Borrower, and Borrower has incurred no material liabilities other than those
incurred in the ordinary course of business.
6.11 COMPLIANCE WITH LAWS. Borrower and Co-Borrower are in compliance
in all material respects with all laws, statutes, rules, regulations, orders and
decisions of all governmental authorities that apply to the conduct of their
business, their properties or their assets, including without limitation
statutes, regulations or ordinances, relating to (a) the handling, storage,
discharge, leakage, emission, escape or release of any substance or material
that may be considered a hazardous or toxic substance, waste or material under
any governmental statute, regulation or ruling; (b) the discharge, release or
emission of any pollutant on or into the soil, air or water; (c) wages, hours,
hiring, non-discrimination, promotion, retirement, benefits, pensions and
working conditions; (d) land use requirements; and (e) trade and antitrust
regulations. Borrower and Co-Borrower have all permits, consents and approvals
required by any governmental authority and are in compliance with all
requirements, conditions and limitations contained in or imposed by such
permits.
6.12 REGULATION U. No part of the proceeds of any Advance will be or
has been used to purchase or carry, or to reduce or retire any loan incurred to
purchase or carry, any margin stock (within the meaning of Regulation U of the
Board of Governors of the Federal Reserve System) or to extend credit to others
for the purpose of purchasing or carrying any such margin stock. Neither
Borrower nor Co-Borrower is engaged as one of its important activities in
extending credit for the purpose of purchasing or carrying such margin stock. If
requested by Bank, Borrower and Co-Borrower will furnish to Bank, in connection
with any Advance, a statement in conformance with the requirements of Federal
Reserve Form U-1 referred to in Regulation U. In addition, no part of the
proceeds of any Advance will be used for the purchase of commodity future
contracts (or margins therefor for short sales) or any commodity. Neither the
making of the Advances nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulations G, T, U or X issued by the Board
of Governors of the Federal Reserve System, in each case as now in effect or as
the same may hereafter be in effect.
6.13 MATERIAL FACTS. Neither any of the Credit Documents nor any
affidavit, document, instrument, certificate or statement furnished to Bank by
or on behalf of Borrower or Co-Borrower in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading. There is no fact known to Borrower or Co-Borrower
that has not been disclosed to Bank in writing that materially and adversely
affects, or in the future may materially and adversely affect, the business,
operations, properties or assets or the condition, financial or otherwise, of
Borrower or Co-Borrower.
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6.14 CLAIMS AND OFFSETS. No Event of Default or Unmatured Event of
Default exists and there is no defense, set off or counterclaim against payment
of principal of or interest under the Notes or against any other amounts due or
that may become due under the Credit Documents. All defenses, setoffs,
counterclaims or claims against Bank and all affiliated persons and entities,
and all of its past, present and future officers, directors, shareholders,
agents, attorneys and employees, and their respective successors, assigns, heirs
and legal representatives, of any nature, if any, held by Borrower or
Co-Borrower, whether known or unknown, that relate to or arise out of the
existing loan documents or the administration or enforcement thereof, are hereby
forever waived, released and discharged.
6.15 INTENT AND EFFECT OF TRANSACTIONS. The transactions provide for
herein:
(a) Are not made or incurred with the intent to hinder,
delay or defraud any Person to whom Borrower or Co-Borrower has been, is now or
may hereafter become indebted;
(b) Do not render Borrower or Co-Borrower insolvent, nor is
Borrower or Co-Borrower insolvent at the time the transactions provided for
herein and the other Credit Documents are entered into;
(c) Do not leave Borrower or Co-Borrower with unreasonably
small capital with which to engage in their business, or in any business or
transaction in which they intend to engage; and
(d) Are not entered into with the intent to incur, or with
the belief that Borrower or Co-Borrower would incur, debts that would be beyond
their ability to pay as such debts mature.
6.16 U.S. LOCK LIABILITIES. Pursuant to the terms of the Acquisition,
Co-Borrower will assume all of the liabilities of the U.S. Lock division of WOC
Inc. Each of such liabilities that are not paid at the closing of the
Acquisition will be paid in a timely manner as they become due.
ARTICLE VII
COVENANTS
---------
Borrower and Co-Borrower covenant and agree that, so long as any
portion of the Loans or any of Borrower's or Co-Borrower's liabilities to Bank
remain unpaid or outstanding, Borrower, Co-Borrower and each Subsidiary:
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7.1 REPORTS, CERTIFICATES AND OTHER INFORMATION. Shall furnish to Bank:
(a) ANNUAL FINANCIALS. Within one hundred twenty (120) days
after the end of each fiscal year of Borrower, a copy of the audited financial
statements of Borrower, prepared in accordance with Generally Accepted
Accounting Principles, consistently applied, together with an unqualified letter
of an independent certified public accounting firm selected by Borrower and
acceptable to Bank. Such statements shall include a balance sheet, a statement
of income and expenses, a statement of cash flow and such other and further
reports and schedules as may reasonably be requested by Bank, including but not
limited to verification of Borrower's compliance with the financial covenants
set forth in this Agreement. Such statements shall be consolidated, and if
requested by Bank, consolidating form for Borrower and its Subsidiaries, and
shall be certified as to their correctness by an Executive Officer of Borrower.
(b) TAX RETURNS. If requested by Bank in writing, within two
hundred seventy (270) days after the end of each fiscal year of Borrower, or, if
an extension for filing such return with the Internal Revenue Service is
requested, promptly after the timely filing of such return, a copy of Borrower's
federal income tax return including all schedules and attachments thereto,
certified as to its correctness and completeness by an Executive Officer of
Borrower.
(c) QUARTERLY FINANCIALS. Within sixty (60) days after the
end of each fiscal quarter of Borrower, a copy of unaudited management-prepared
quarterly financial statements of Borrower, prepared in accordance with
Generally Accepted Accounting Principles, consistently applied. Such statements
shall include a balance sheet, a statement of income and expenses, a statement
of cash flow and such other and further reports and schedules as may reasonably
be requested by Bank, and verification of Borrower's compliance with the
financial covenants set forth in this Agreement. Such statements shall be
certified as to their correctness by a principal financial officer of Borrower.
(d) CERTIFICATES. Contemporaneously with the furnishing of a
copy of each annual report and each Quarterly Report provided for in this
SECTION 7.1, a certificate dated the date of each such report, signed by an
Executive Officer of Borrower, to the effect that (i) such report provides a
fair presentation of the financial position of the Company as of the date of
such report, and the results of
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operations for the periods so presented, and (ii) no Event of Default or
Unmatured Event of Default has occurred and is continuing, or, if there is any
such event, describing it and the steps, if any, being taken to cure it. Such
certificate shall be in the form of the certificates previously delivered to
Bank pursuant to the Existing Agreement, or in such other form reasonably
requested by Bank.
(e) MANAGEMENT LETTER. Within ten (10) days after delivery
to Borrower, any management letter or similar report from Borrower's Independent
auditors.
(f) SEC REPORTS. Promptly after they become publicly
available, copies of all periodic reports and proxy or information statements
filed by Borrower with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, or distributed to its stockholders.
(g) OTHER INFORMATION. From time to time such other
information concerning Borrower or Co-Borrower as Bank may reasonably request.
7.2 USE OF LOAN PROCEEDS. Shall use the proceeds of the Loan only for
the commercial purposes permitted herein or otherwise permitted by Bank and
furnish Bank all evidence that it may reasonably require with respect to such
use.
7.3 MAINTENANCE OF BUSINESS AND PROPERTIES. Shall at all times
maintain, preserve and protect all of its material property used or useful in
the conduct of its business, and keep the same in good repair, working order and
condition (ordinary wear and tear excepted), and from time to time make, or
cause to be made, all material necessary repairs, renewals, replacements,
betterments and improvements thereto so that the business carried on in
connection therewith may continue to be conducted properly and in accordance
with standards generally accepted in businesses of a similar type and size at
all times, and maintain and keep in full force and effect all licenses and
permits necessary to the proper conduct of its business.
7.4 INSURANCE. Shall maintain such liability insurance, workers'
compensation insurance, business interruption insurance and casualty insurance
as may be required by law, as may be customary and usual for prudent businesses
in its industry or as may be reasonably required by Bank and shall insure and
keep insured all such properties with good and reputable insurance companies and
satisfactory to Bank. All hazard insurance shall be in amounts and shall contain
co-insurance and deductible provisions approved by Bank, and shall not be
terminable except upon 30 days' written notice to Bank.
7.5 NOTICES. Shall provide to Bank immediate written notice of (a) the
occurrence of an Event of Default or an Unmatured Event of Default; (b) any
litigation or material changes in existing litigation which, if determined
adversely to such Person, would likely result in a loss of $500,000 or more (in
excess of insurance proceeds available with respect thereof, if any) or
$1,000,000 regardless of insurance coverage; (c) any damage or loss to property
involving a loss of $500,000 or more (in excess of insurance proceeds available
with respect thereto, if any) or $1,000,000 regardless of insurance coverage or
any judgment against Borrower or any Subsidiary of $500,000 or more (in excess
of insurance proceeds available with respect thereto, if any) or $1,000,000
regardless of insurance coverage; (d) any notice from taxing
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authorities as to claimed deficiencies or any tax Lien or any notice relating to
alleged ERISA violations which, if determined adversely to such Person, would
likely result in a loss of $500,000 or more; (e) any Reportable Event, as
defined in ERISA; (f) any loss or threatened loss of licenses or permits if the
result would be a loss of $500,000 or more; (g) any change of or decision to
change Borrower's independent accountants; (h) if Borrower learns that any of
its representations herein are untrue in any material respect; and (i) any
notice or claim of violation or suspected violation of any laws, regulations or
ordinances relating to hazardous or toxic materials, which, if determined
adversely to such Person, would likely result in a loss of $500,000 or more.
7.6 INSPECTIONS. Shall permit inspections, reviews and audits of its
properties and records at such times and in such manner as may be reasonably
required by Bank; provided that such inspections shall be limited to no more
than two per year unless an Event of Default or an Unmatured Event of Default
shall have occurred and is continuing. The cost of such audits, reviews and
inspections shall be borne by Borrower if an Event of Default or an Unmatured
Event of Default shall have occurred and is continuing or if they reveal the
existence of an Event of Default or an Unmatured Event of Default.
7.7 DEBT. Shall not create or permit to exist any Indebtedness,
including any guaranties or other contingent obligations, except Permitted Debt.
7.8 LIENS. Shall not create or permit to exist any Liens on any of its
property except Permitted Liens.
7.9 DIVIDENDS. Shall not pay or declare any dividends (other than stock
dividends) or other distributions or purchase, redeem or otherwise acquire any
stock or other equity interests (collectively, "DISTRIBUTION") unless (a) after
giving effect thereto, there shall be no Event of Default or Unmatured Event of
Default hereunder; (b) after giving effect thereto, Borrower's Tangible Net
Worth (as calculated in SECTION 7.23 ("FINANCIAL COVENANTS")) would not be less
than that required by this Agreement; and (c) the aggregate Distributions with
respect to any four consecutive fiscal quarters would not exceed Borrower's net
income for such period or Borrower's net income for any fiscal year after March
31, 1996, whichever is less; PROVIDED however, that any Subsidiary may pay
dividends to Borrower or another Subsidiary wholly-owned by Borrower.
7.10 MERGER, SALE, ETC. Shall maintain its corporate existence, good
standing and necessary qualifications to do business and shall not reorganize,
merge or consolidate with or into any Person or acquire all or substantially all
of the assets of, or 50% or more of any class of equity interest of, any Person
except for Permitted Investments, or sell, lease, assign or otherwise dispose of
any Subsidiaries or any substantial portion of its assets (other than sales of
obsolete or worn-out equipment, sales of inventory in the ordinary course of
business and sales of assets (including stock of Subsidiaries) which constitute
Permitted Investments and which do not, in the
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aggregate, have a book value of more than 5 % of the Tangible Net Worth of
Borrower measured at the time of each sale or disposition).
7.11 LOANS AND OTHER INVESTMENTS. Shall not make or permit to exist any
advances or loans to, or guarantee or become contingently liable, directly or
indirectly, in connection with the obligations, leases, stock or dividends of,
or own, purchase or make any commitment to purchase any stock, bonds, notes,
debentures or other securities of, or any interest in, or make any capital
contributions to (all of which are sometimes collectively referred to herein as
"INVESTMENTS") any Person except for Permitted Investments.
7.12 CHANGE IN BUSINESS. Shall not enter into any business which is
substantially different from the business or businesses in which it is presently
engaged.
7.13 TRANSACTIONS WITH AFFILIATES. Shall not directly or indirectly
purchase, acquire or lease any property from, or sell, transfer or lease any
property to, or become partners or joint venturers with, or otherwise deal with,
in the ordinary course of business or otherwise, any Affiliate (other than a
Subsidiary); PROVIDED, HOWEVER, that the transactions described on EXHIBIT 7.13
are approved as described in such Exhibit; and further provided that additional
transactions that do not involve liability, Investments or obligations of
Borrower and its Subsidiaries in excess of $250,000 at any time outstanding or
payments by Borrower or its Subsidiaries in excess of $250,000 in any 12-month
period shall be permitted after written notice to Bank if such transactions are
not materially less advantageous to Borrower or such Subsidiaries than would be
the case if no such affiliation existed.
7.14 NO SALE, LEASEBACK. Shall not enter into any sale-and-leaseback or
similar transaction.
7.15 MARGIN STOCK. Shall not use any proceeds of the Loans to purchase
or carry any margin stock (within the meaning of Regulation U of the Board of
Governors of Federal Reserve System) or extend credit to others for the purpose
of purchasing or carrying any margin stock.
7.16 PAYMENT OF TAXES, ETC. Shall pay before delinquent all of its
material obligations, debts and taxes, except payment of taxes may, after
written notice to Bank, be contested in good faith by appropriate proceedings
provided adequate reserves are established as required by GAAP and further
provided that neither Borrower nor any Subsidiary nor their respective assets
are subject to any Liens for the nonpayment of such taxes or other onerous
condition.
7.17 SUBORDINATION. Shall cause all debt and other obligations now or
hereafter owed to any Affiliate to be subordinated in right of payment and
security to the Loans in accordance with subordination agreements satisfactory
to Bank.
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7.18 COMPLIANCE; HAZARDOUS SUBSTANCES. Shall strictly comply with all
laws, regulations, ordinances and other legal requirements, specifically
including, without limitation, ERISA, all securities laws and all environmental
and safety laws. Unless approved in writing by Bank, Borrower nor any Subsidiary
shall engage in the storage, manufacture, disposition, processing, handling, use
or transportation of any Hazardous Substances, whether or not in compliance with
applicable laws and regulations except for ordinary and necessary amounts of
solvents, paints, cleaning material and similar substances used, stored or sold
by Borrower or its Subsidiaries in the ordinary courses of business and in
strict compliance with all applicable laws and regulations.
7.19 SUBSIDIARIES. Shall not acquire or form any Subsidiaries (except
Subsidiaries which are Permitted Investments) or permit any Subsidiary to issue
capital stock except to its parent. Any Subsidiary acquired or formed by
Borrower shall join in this Agreement as co-borrower and shall be released from
obligations hereunder if all of Borrower's interest in such Subsidiary is sold
or otherwise disposed of in accordance with this Agreement and no Default exists
or would exist after such transaction.
7.20 WITHHOLDING TAXES. Shall pay as and when due all employee
withholding, FICA and other payments required by federal, state and local
governments with respect to wages paid to employees, except payment of taxes
may, after written notice to Bank, be contested in good faith by appropriate
proceedings provided adequate reserves are established as required by GAAP and
further provided that neither Borrower nor any Subsidiary nor their respective
assets are subject to any Liens for the nonpayment of such taxes or other
onerous condition.
7.21 DEPOSIT ACCOUNTS. Shall maintain its primary operating accounts
with Bank.
7.22 ERISA. Borrower shall cause each employee benefit plan qualified
on the date hereof or hereafter qualified to remain qualified under Section
401(a) of the IRC and remain in compliance with the provisions of ERISA. With
respect to any such plan, Borrower shall not cause or permit to be caused any
material accumulated funding deficiency (as described in SECTION 6.7 hereof),
any material liability to the Pension Benefit Guaranty Corporation, any
Reportable Event or prohibited transaction (as described in SECTION 6.7 hereof),
or any action, the effect of which could result in the loss of a Plan's
compliance with ERISA or qualification under Section 401(a) of the IRC. Borrower
shall furnish directly to Bank (i) as soon as possible, and in any event within
30 days after any executive officer of Borrower or any ERISA Affiliate either
knows or has reason to know that any Reportable Event has occurred that alone or
together with any other Reportable Event could reasonably be expected to result
in liability of Borrower to the PBGC in an aggregate amount exceeding $250,000,
a statement of the president or chief financial officer setting forth details as
to such Reportable Event and the action proposed to be taken with respect
thereto, together
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with a copy of the notice, if any, of such Reportable Event given to the PBGC,
(ii) promptly after receipt thereof, a copy of any notice Borrower or any ERISA
Affiliate may receive from the PBGC relating to the intention of the PBGC to
terminate any Plan or Plans (other than a Plan maintained by an ERISA Affiliate
which is considered an ERISA Affiliate only pursuant to subsection (m) or (o) of
Section 412 of the Internal Revenue Code) or to appoint a trustee to administer
any Plan or Plans, (iii) within 10 days after the due date for filing with the
PBGC pursuant to Section 412(n) of the Internal Revenue Code of a notice of
failure to make a required installment or other payment with respect to a Plan,
a statement of the president or chief financial officer setting forth details as
to such failure and the action proposed to be taken with respect thereto,
together with a copy of such notice given to the PBGC and (iv) promptly and in
any event within 30 days after receipt thereof by Borrower or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, a copy of notice received by
Borrower or any ERISA Affiliate concerning (A) the imposition of Withdrawal
Liability or (B) a determination that a Multiemployer Plan is, or is expected to
be, terminated or in reorganization, in each case within the meaning of Title IV
of ERISA.
7.23 FINANCIAL COVENANTS. Comply with the following financial covenants
on a consolidated basis:
(a) The Tangible Net Worth of Borrower shall not be less
than $48,000,000 PLUS 50% of Borrower's net income from September 30, 1998
through the date of such determination;
(b) The ratio of Total Liabilities of Borrower to Tangible
Net Worth of Borrower shall not be more than:
(i) 1.20: 1.00, from the date hereof through June
30, 1999;
(ii) 1.10: 1.00, from July 1, 1999 through June 30,
2000; and
(iii) 1.00: 1.00, after June 30, 2000.
(c) The ratio (the "Fixed Charge Ratio") of Borrower's net
income before interest expense, income taxes, depreciation, amortization and
rent expense and less dividends paid by the Company, to the sum of its interest
expense, current maturities of long-term debt and rent expense shall not be less
than:
(i) 5.00: 1.00, from the date hereof through June
30, 1999;
(ii) 4.00: 1.00, from July 1, 1999 through June 30,
2000; and
(iii) 3.00: 1.00, after June 30, 2000;
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The Fixed Charge Ratio shall be calculated at each fiscal quarter end, based
upon the four consecutive fiscal quarters last ended.
7.24 MANAGEMENT; CONTROL. Any change in the chief executive officer of
Borrower shall be subject to Bank's approval, not to be unreasonably withheld.
Borrower shall not issue stock or options to Waxman or take any action which
would cause or allow Borrower to become a direct or indirect Subsidiary of
Waxman or to become subject to any covenants or restrictions in any trust
indentures or other agreements to which Waxman or its Subsidiaries are parties
or by which their assets are bound.
7.25 FURTHER ASSURANCES. Shall take such further action and provide to
Bank such further assurances as may be reasonably requested to ensure compliance
with the intent of this Agreement and the other Credit Documents.
7.26 MAINTAIN EXISTENCE AND RIGHTS. Shall cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence,
rights and franchises and to comply with all laws applicable to it, shall be
qualified to do business and in good standing in the State of Delaware and every
other jurisdiction in which the nature of its business makes such qualification
necessary and shall not suffer or permit its dissolution or liquidation, in
whole or in part, or conveyance of any of its stock.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
8.1 EVENTS OF DEFAULT. If any one or more of the following events
(herein called "Events of Default") shall occur, an Event of Default shall be
deemed to have occurred:
(a) PAYMENT. If Borrower, Co-Borrower or any Subsidiary
defaults in the payment of any principal of or interest on the Notes (or fails
to pay such principal or interest in the manner set forth herein) or of any
other amount payable hereunder or under any of the other Credit Documents, that
is not cured within five (5) days thereafter, or under any other Indebtedness to
Bank, that is not cured within any grace period provided in the document or
instrument evidencing such Indebtedness), either by the terms hereof or thereof
or otherwise as herein or therein provided; or
(b) PAYMENT OF OTHER OBLIGATIONS. If Borrower, Co-Borrower
or any Subsidiary defaults in the payment of principal of or interest on any
other Indebtedness that is in excess of $250,000 (other than taxes being
contested as permitted by this Agreement), or in excess of $500,000 with respect
to disputed amounts owed to vendors outside the United States, beyond any period
of grace provided with respect
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thereto, or in the performance of any other agreement, term or condition
contained in any agreement or instrument under which any such Indebtedness is
created if the effect of such default in payment or performance is to cause, or
permit the holder or holders of such obligation (or a trustee on behalf of such
holder or holders) to cause, such obligation to become due prior to its stated
maturity; or
(c) REPRESENTATIONS AND WARRANTIES. If any representation,
warranty, report or certification made by or on behalf of Borrower or
Co-Borrower herein or in any of the other Credit Documents or in any writing
furnished in connection with or pursuant to this Agreement or any of the other
Credit Documents shall be false or misleading in any material respect (i) on the
date as of which made or reaffirmed or (ii) at any other time; or
(d) SALE OF ASSETS OR STOCK. If Borrower or Co-Borrower
sells a material portion of its assets; or there is a material change in the
ownership of or effective control of Borrower or Co-Borrower from the date
hereof; or Borrower or Co-Borrower shall consent to, record or otherwise suffer
to exist any change in the ownership of more than 5% of the outstanding capital
stock of Borrower or Co-Borrower without Bank's prior consent; or
(e) OTHER COVENANTS. If Borrower, Co-Borrower or any
guarantor defaults in the performance or observance of any agreement, covenant,
term or condition binding on them contained in the Credit Documents and, except
with respect to defaults in the performance of the covenants contained in any of
SECTIONS 7.2, 7.6, 7.7, 7.8, 7.9, 7.10, 7.13, and 7.24 hereof (as to which there
is no cure period), and SECTION 7.1 hereof (as to which an Event of Default
shall occur if Borrower or Co-Borrower should fail to deliver to Bank any such
required report, certificate or information within the time period set forth
therein, and shall fail to cure such default within five days of notice thereof
from Bank), such default is not remedied within thirty (30) days after its
occurrence; or
(f) DEFAULT UNDER CREDIT DOCUMENTS. If a default or event of
default shall occur under any of the other Credit Documents or under any swap
agreement (as defined in 11 U.S.C. Section 101) with Bank or its affiliates; or
(g) LIQUIDATION, DISSOLUTION OR BANKRUPTCY. If Borrower,
Co-Borrower or any Subsidiary shall Liquidate or dissolve or suspend operation
of their business; or shall file a voluntary petition or an answer, or an
involuntary petition that is not dismissed within sixty (60) days is filed
against Borrower, Co-Borrower or any Subsidiary seeking reorganization,
arrangement, readjustment of any of their debts or for any other relief under
Bankruptcy Code or under any other insolvency act or law, state or federal, now
or hereafter existing, or any other action is taken by Borrower, Co-Borrower or
any Subsidiary indicating their consent to, approval of or acquiescence in any
such petition or proceeding; or if Borrower, Co-Borrower or any Subsidiary
applies for, or a receiver, trustee or custodian is appointed for Borrower,
Co-Borrower or any Subsidiary or for all or a substantial part of any of their
property; or if Borrower,
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Co-Borrower or any Subsidiary enters into an assignment for the benefit of
creditors; or if Borrower, Co-Borrower or any Subsidiary is unable, or admits in
writing its inability to pay any of its debts as they mature; or a warrant of
attachment, execution or similar process against any substantial part of the
property of Borrower, Co-Borrower or any Subsidiary is issued that is not
dismissed within thirty (30) days and which attachment, warrant or process
relates to a claim in excess of $500,000 either alone or when aggregated with
all other such warrants, attachments, and processes; or
(h) JUDGMENT. If a final judgment in excess of $500,000
shall be rendered against Borrower, Co-Borrower or any Subsidiary and if, within
thirty (30) days after entry thereof, such judgment shall not have been
discharged or execution thereon stayed pending appeal, or if within thirty (30)
days after the expiration of any such stay, such judgment shall not have been
discharged; or
(i) INVALIDITY OF CREDIT DOCUMENTS. If (i) any of the Credit
Documents shall be deemed invalid or unenforceable for any reason; or (ii) any
Person shall contest the validity of any of the Credit Documents, PROVIDED Bank
reasonably believes that such Person's claim may be valid and such invalidity or
unenforceability could have a material adverse effect on the condition
(financial or otherwise) of Borrower or Co-Borrower, or on Bank's position
vis-a-vis, this Agreement or either of the Notes.
(j) CONTROL BY WAXMAN. Waxman should acquire, directly or
through intermediaries, more than 49.9% of any class of voting securities of
Borrower or any Subsidiary of Borrower or Borrower or any Subsidiary should
become subject to any covenant or restriction contained in any trust indenture
or other agreement to which Waxman or any of its Subsidiaries is a party or by
which its assets are bound.
8.2 REMEDIES. Upon the occurrence of any Event of Default (but after
the expiration of any grace period provided herein with respect to such Event of
Default) and at any time thereafter Bank may, at its option, declare the Loans
and all or any portion of the obligations owing by Borrower and/or Co-Borrower
to Bank under the Credit Documents to be forthwith due and payable, whereupon
(or otherwise upon the occurrence of any event described in SECTION 8.1(g)
hereof, whether or not such declaration shall be made) the Advances and any
other such obligations shall forthwith become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything contained herein or in the other Credit Documents to
the contrary notwithstanding (other than grace periods and/or notice provisions
provided for herein) and in addition, Bank may immediately proceed to foreclose
its mortgages or liens on or security interest in any collateral that it may
hold and to exercise its rights under and to do all other things provided for by
law or by the terms of the Credit Documents. Borrower and Co- Borrower
acknowledge the unconditional right of Bank to pledge or transfer the Notes to
any third party ten (10) days after providing notice of such sale to Borrower
and Co-Borrower, during which
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ten (10) days Borrower and Co-Borrower shall have the right to purchase, or
cause to be purchased by parties of its choosing, the Notes under the terms
offered by the third party selected by Bank; PROVIDED, HOWEVER, that Bank shall
have an unconditional right to pledge or transfer the Notes to any party at any
time following an Event of Default contained in SECTIONS 8.1(a) or 8.1(g)
hereof. Borrower and Co-Borrower hereby grant to Bank the right to disclose to
any prospective purchaser(s) of the Notes any information requested by such
prospective purchaser(s); PROVIDED, THAT, prior to disclosing any material,
non-public information regarding Borrower, Bank shall obtain a confidentiality
agreement from the prospective purchaser in substance reasonably satisfactory to
Borrower. Other than such permitted disclosures to any such prospective
purchasers, Bank shall not disclose to any Person any confidential information
regarding the financial condition of Borrower or Co-Borrower except (i) as
required by law, or court or administrative order, (ii) information otherwise
publicly available or freely usable or obtained from another public source,
(iii) basic and general information regarding the level of lending activity and
deposit activity and account status, given in response to an inquiry from a
creditor of Borrower or Co-Borrower, or (iv) with the consent of Borrower or Co-
Borrower.
ARTICLE IX
MISCELLANEOUS
-------------
9.1 WAIVER OF DEFAULT. Bank may, by written notice to Borrower or Co-
Borrower at any time and from time to time, waive any default in the performance
or observance of any condition, covenant or other term hereof or any Event of
Default that shall have occurred hereunder and its consequences. Any such waiver
shall be for such period and subject to such conditions as shall be specified in
any such notice. In the case of any such waiver, Borrower, Co-Borrower and Bank
shall be restored to their former positions and rights hereunder and under the
other Credit Documents, and any Event of Default so waived, whether or not in
writing, shall be deemed to be cured and not continuing, but no such waiver
shall extend to any subsequent or other Event of Default or impair any right
consequent thereon.
9.2 AMENDMENTS AND WAIVERS. Bank, Borrower and Co-Borrower may, subject
to the provisions of this Section, from time to time enter into written
agreements for the purpose of adding any provisions to this Agreement or the
other Credit Documents or changing in any manner the rights of Bank, Borrower or
Co-Borrower hereunder or under the other Credit Documents. No such amendment,
modification or supplement shall be established by custom, conduct or course of
dealing, but solely by an instrument in writing duly executed by the party to be
charged therewith.
9.3 NOTICES. All notices and other communications required or permitted
hereunder or under any of the other Credit Documents shall be in writing
(including telex, telefax or telegraphic communication) and shall be delivered
personally, telexed
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(with appropriate answerback received), telefaxed (with confirmation of receipt
immediately thereafter by telephone), telegraphed, sent by nationally recognized
overnight courier (marked for overnight delivery), or sent by registered,
certified or express mail, postage prepaid, return receipt requested, addressed
as follows or to such other address as may be hereafter designated in writing
hereunder by the respective parties:
Borrower ▇▇▇▇▇▇▇, Inc.
or ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Phone:
Fax:
With a copy to: ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Bank: First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: LeBoeuf, Lamb, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
All such notices and communications shall (i) when delivered in person on any
Business Day between the hours of 9:00 AM to 5:00 PM. (local time), be effective
when delivered (or if delivered after 5:00 PM, be effective on the next Business
Day to occur), (ii) when telexed (provided the correct answerback has been
received) or telefaxed (provided receipt is immediately thereafter confirmed by
telephone) or telegraphed, in each case on any Business Day between the hours of
9:00 AM to 5:00 PM (Eastern Standard time), be effective when telexed, telefaxed
or delivered to the telegraph company for immediate transmittal, respectively
(or if telexed, telefaxed or delivered to the telegraph company after 5:00 PM,
be effective on the next Business
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38
Day to occur), or (iii) if mailed, be effective three (3) Business Days after
the same has been deposited in the mails, postage prepaid, by registered or
certified mail, return receipt requested, or (iv) if sent by a nationally
recognized overnight courier service, be effective one (1) Business Day after
the same has been delivered to such courier service marked for overnight
delivery; in each case addressed as aforesaid.
Any party may by notice given in accordance with this Section to the other
parties designate another address or person for receipt of notices hereunder.
9.4 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise or delay in
exercising, on the part of Bank, any right, power or privilege hereunder or
under any of the other Credit Documents shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder or
thereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided herein
and in the other Credit Documents are cumulative and not exclusive of any other
rights or remedies provided by law.
9.5 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
agreements, representations and warranties made herein shall survive the
delivery of the Notes and the other Credit Documents and the making and any
renewal of the Loans, notwithstanding any investigation thereof made by Bank or
its agents.
9.6 SET OFF BY BANK. UPON THE OCCURRENCE OF ANY EVENT OF DEFAULT, BANK
IS HEREBY AUTHORIZED AT ANY TIME AND FROM TIME TO TIME, WITHOUT NOTICE TO
BORROWER OR CO-BORROWER, TO SET OFF, APPROPRIATE AND APPLY ANY OR ALL ITEMS
HEREINABOVE REFERRED TO AGAINST ALL INDEBTEDNESS OF BORROWER AND CO-BORROWER TO
BANK, UNDER THE CREDIT DOCUMENTS OR OTHERWISE, WHETHER NOW EXISTING OR HEREAFTER
ARISING.
9.7 ENTIRE AGREEMENT. This Agreement, together with the other Credit
Documents and other documents executed in connection herewith or contemplated
hereby, contains the entire agreement of the parties regarding the subject
matter hereof. The parties acknowledge that Bank has made no promises,
agreements, conditions, undertakings, warranties or representations that are not
specifically set forth in such agreements.
9.8 ENFORCEABILITY. Should any one or more of the provisions of this
Agreement be determined to be illegal or unenforceable as to one or more of the
parties, all other provisions nevertheless shall remain effective and binding on
the parties hereto.
9.9 REIMBURSEMENT OF EXPENSES. Borrower and Co-Borrower shall reimburse
Bank on demand (a) for all costs and out-of-pocket expenses (including without
limitation reasonable attorneys' fees, accounting fees, recording fees, the
costs of any appraisal, survey, environmental assessments, engineering,
inspections, searches, and other reasonable expenses), directly or indirectly
incurred in connection
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39
with the preparation, execution, delivery, modification, waiver and amendment of
this Agreement and the other Credit Documents and (b) for all expenses incurred
by Bank (including without limitation reasonable attorneys' fees, court costs
and other expenses, whether or not incurred in trials, appeals, bankruptcy
actions or otherwise) in the enforcement of this Agreement or the other Credit
Documents or in the collection of any indebtedness or other amounts owing under
this Agreement or the other Credit Documents.
9.10 EXECUTION OF COUNTERPARTS. The Credit Documents may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which together
shall constitute one and the same instrument.
9.11 STAMP OR OTHER TAXES. Borrower and Co-Borrower shall pay any and
all stamp, documentary, excise and intangible taxes and recording fees now or
hereafter payable in respect of this Agreement, the Notes, and the other Credit
Documents or any modification(s) thereof, and shall hold Bank harmless with
respect thereto. Bank may, but shall not be obligated to, at any time or from
time to time, debit any deposit account of Borrower or Co-Borrower at Bank for
the amount of any such taxes.
9.12 WAIVER OF JURY TRIAL; ARBITRATION. EACH OF BANK, BORROWER AND
CO-BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY PARTY HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK TO
ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS. Upon demand of either
party hereto, whether made before or after institution of any judicial
proceeding, any dispute, claim or controversy arising out of, connected with or
relating to this Agreement and other Credit Documents ("Disputes") between
parties to this Agreement shall be resolved by binding arbitration as provided
herein. Institution of a judicial proceeding by a party does not waive the right
of that party to demand arbitration hereunder. Disputes may include, without
limitation, tort claims, counterclaims, disputes as to whether a matter is
subject to arbitration, claims brought as class actions, claims arising from
Credit Documents executed in the future, or claims arising out of or connected
with the transaction reflected by this Agreement.
Arbitration shall be conducted under and governed by the Commercial
Financial Disputes Arbitration Rules (the "Arbitration Rules") of the American
Arbitration Association (the "AAA") and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in the city of the Principal Office. The
expedited procedures set forth in
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40
Rule 51 ET SEQ. of the Arbitration Rules shall be applicable to claims of less
than $1,000,000.00. All applicable statutes of limitation shall apply to any
Dispute. A judgment upon the award may be entered in any court having
jurisdiction. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys. The single arbitrator selected for expedited
procedure shall be a retired judge from the highest court of general
jurisdiction, state or federal, of the state where the hearing will be conducted
or if such person is not available to serve, the single arbitrator may be a
licensed attorney. Notwithstanding the foregoing, this arbitration provision
does not apply to disputes under or related to swap agreements.
9.13 GOVERNING LAW. This Agreement and the other Credit Documents
issued hereunder shall be governed in all respects by the laws of the State of
Florida.
IN WITNESS WHEREOF, Borrower, Co-Borrower and Bank have caused this
Agreement to be duly executed under seal as of the day and year first above
written.
▇▇▇▇▇▇▇, INC.
By
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and
Chief Financial Officer
U.S. LOCK CORPORATION
By
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
FIRST UNION NATIONAL BANK
By
--------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
-35-
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EXHIBIT 1.1(A)
PERMITTED DEBT
--------------
The following shall be additional Permitted Debt:
1. Indebtedness in the outstanding amount not to exceed two million
dollars incurred to purchase tangible assets to be used in Borrower's business,
provided that the principal amount of such Indebtedness shall not at any time
exceed the purchase price of the assets so purchased.
2. Indebtedness subordinated and right of payment and security to the
Loans in accordance with subordination agreements approved in writing by Bank.
3. Indebtedness payable to suppliers and other trade creditors in the
ordinary course of business on ordinary and customary trade terms.
4. Indebtedness of any Subsidiary to Borrower or another subsidiary.
42
EXHIBIT 1.1(B)
PERMITTED LIENS
---------------
The following shall be additional Permitted Liens:
1. Deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance, social security and similar laws.
2. Attachment, judgment and other similar non-tax Liens not exceeding
$250,000, in the aggregate, at any one time outstanding arising in connection
with court proceedings but only if and for so long as (a) the execution or
enforcement of such Liens is and continues to be effectively stayed and bonded
on appeal, (b) the validity and/or amount of the claims secured thereby are
being actively contested in good faith by appropriate legal proceedings and (c)
such Liens do not, in the aggregate, materially detract from the value of the
assets of the Person whose assets are subject to such Lien or materially impair
the use thereof in the operation of such Person's business.
3. Liens securing Permitted Debt incurred solely for the purpose of
financing the acquisition of tangible assets provided that such Lien does not
secure more than the purchase price of such assets and does not encumber
property other than the purchased assets.
4. Liens reflected on Annex A to this Exhibit 1.1(B).
43
EXHIBIT 7.13
TRANSACTIONS WITH AFFILIATES
----------------------------
1. Intercorporate Agreement in substantially the form appended to the
Registration Statement of Borrower on Form S-1 which was filed with the
Securities and Exchange Commission on march 5, 1996 (the "Registration
Statement").
2. Trade payables/receivables generated in the ordinary course of business
of Borrower and its Subsidiaries.
3. Registration rights agreement in favor of Waxman in substantially the
form appended to the Registration Statement.
4. Trademark License Agreement in substantially the form appended to the
Registration Statement.
44
LINE OF CREDIT
NOTE
US $15,000,000.00 _________________, Georgia
January 6, 1999
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇, INC., a Delaware corporation, and U.S.
LOCK CORPORATION, a Delaware corporation (collectively, the "Borrower") hereby,
jointly and severally, promise to pay to the order of FIRST UNION NATIONAL BANK
(the "Lender"), at the offices of First Union National Bank located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (or at such other place or places as the
Lender may designate), at the times and in the manner provided in the Credit
Agreement dated January 6, 1999 between Borrower and Lender (the "Credit
Agreement"), the principal sum of FIFTEEN MILLION AND 00/100 DOLLARS (US
$15,000,000.00), or, if less, the aggregate principal amount of all Advances
outstanding under the terms and conditions of this Line of Credit Note (the
"Line of Credit Note") and the Credit Agreement. Capitalized terms used herein
and not otherwise defined shall have the same meanings as those ascribed to such
terms in the Credit Agreement. The Borrower also unconditionally promises to pay
interest on the aggregate unpaid principal amount of this Line of Credit Note at
times, in a manner and rates of interest determined in accordance with terms and
conditions set forth in the Credit Agreement.
This Line of Credit Note is one of the promissory notes referred to in
the Credit Agreement and is issued to evidence the Line of Credit Loan made
available by the Lender pursuant to the Credit Agreement. Any holder of this
Line of Credit Note is entitled to the benefits of, and remedies provided in,
the Credit Agreement and the other Credit Documents. Reference is made to the
Credit Agreement for provisions relating to the interest rate, maturity,
payment, prepayment and acceleration of this Line of Credit Note.
In the event of an acceleration of the maturity of this Line of Credit
Note, this Line of Credit Note shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by the Borrower.
In the event this Line of Credit Note is not paid when due at any
stated or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorneys'
fees.
This Line of Credit Note shall be governed by and construed in
accordance with the internal laws and judicial decisions of the State of
Florida. The Borrower hereby submits to the nonexclusive jurisdiction and venue
of the federal and state courts
45
located in Jacksonville, Florida, although the Lender shall not be limited to
bringing an action in such courts.
IN WITNESS WHEREOF, the Borrower has caused this Line of Credit Note to
be executed under seal by their duly authorized corporate officers as of the day
and year first above written.
▇▇▇▇▇▇▇, INC.
By: ___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President-Finance and
Chief Financial Officer
U.S. LOCK CORPORATION
By: ___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
2
46
TERM LOAN NOTE
US $33,000,000.00 ________________, Georgia
January 6, 1999
FOR VALUE RECEIVED, ▇▇▇▇▇▇▇, INC., a Delaware corporation, and U.S.
LOCK CORPORATION, a Delaware corporation, (collectively, the "Borrower"),
hereby, jointly and severally, promise to pay to the order of FIRST UNION
NATIONAL BANK (the "Lender"), at the offices of First Union National Bank
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ (or at such other
place or places as the Lender may designate), at the times and in the manner
provided in the Credit Agreement dated January 6, 1999 between Borrower and
Lender (the "Credit Agreement"), the principal sum of THIRTY THREE MILLION AND
00/100 DOLLARS (US $33,000,000.00) or, if less, the aggregate principal amount
of all Advances outstanding under the terms and conditions of this term loan
note (the "Term Loan Note") and the Credit Agreement. Capitalized terms used
herein and not otherwise defined shall have the same meanings as those ascribed
to such terms in the Credit Agreement. The Borrower also unconditionally
promises to pay interest on the aggregate unpaid principal amount of this Term
Loan Note at times, in a manner and rates of interest determined in accordance
with terms and conditions set forth in the Credit Agreement.
This Term Loan Note is one of the promissory notes referred to in the
Credit Agreement and is issued to evidence the Term Loan made available by the
Lender pursuant to the Credit Agreement. Any holder of this Term Loan Note is
entitled to the benefits of, and remedies provided in, the Credit Agreement and
the other Credit Documents. Reference is made to the Credit Agreement for
provisions relating to the interest rate, maturity, payment, prepayment and
acceleration of this Term Loan Note.
In the event of an acceleration of the maturity of this Term Loan Note,
this Term Loan Note shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by the Borrower.
In the event this Term Loan Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees.
This Term Loan Note shall be governed by and construed in accordance
with the internal laws and judicial decisions of the State of Florida. The
Borrower hereby
47
submits to the nonexclusive jurisdiction and venue of the federal and state
courts located in Jacksonville, Florida, although the Lender shall not be
limited to bringing an action in such courts.
IN WITNESS WHEREOF, the Borrower has caused this Term Loan Note to be
executed under seal by their duly authorized corporate officers as of the day
and year first above written.
▇▇▇▇▇▇▇, INC.
By ___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
` Title: Vice President-Finance and
Chief Financial Officer
U.S. LOCK CORPORATION
By ___________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
2
