EXHIBIT 4.4
SIXTH AMENDMENT TO LOAN AGREEMENT
This SIXTH AMENDMENT TO LOAN AGREEMENT (this "Amendment") is entered
into as of November 14, 2002, among ASSOCIATED HYGIENIC PRODUCTS LLC, a Delaware
limited liability company ("Borrower"), the Lenders signatory hereto, and
FOOTHILL CAPITAL CORPORATION, a California corporation, in its capacity as
administrative agent ("Agent") for the Lenders (as defined below).
WITNESSETH:
WHEREAS, Borrower, the Lenders (as defined therein) and Agent have
entered into that certain Amended and Restated Loan and Security Agreement dated
as of March 14, 2001, as amended by that certain First Amendment to Loan
Agreement, as further amended by that certain Second Amendment to Loan
Agreement, as further amended by that certain Third Amendment and Waiver to Loan
Agreement, as further amended by that certain Fourth Amendment to Loan
Agreement, and as further amended by that certain Fifth Amendment to Loan
Agreement prior to the date hereof (as the same may be further modified,
amended, restated or supplemented from time to time, the "Loan Agreement"),
pursuant to which the Lenders have agreed to extend credit to Borrower from time
to time; and
WHEREAS, Borrower has requested that Agent and the Lenders amend the
Loan Agreement to increase the Wal-Mart concentration limit from 25% to 55% for
a period of 60 days, and 50% thereafter; and
WHEREAS, Borrower, Agent and the Lenders have agreed to amend the Loan
Agreement to provide that Revolver Advances (and not Capital Expenditure Loans
and Term Loans) may only bear interest at the LIBOR Rate; and
WHEREAS, Borrower, Agent and the Lenders have agreed to amend the Loan
Agreement to provide that the Maximum Amount shall be reduced from $35,000,000
to $30,000,000; and
WHEREAS, Borrower, Agent and the Lenders have agreed to amend the
provision of the Loan Agreement regarding conditions precedent to all extensions
of credit with regard to any Capital Expenditure Loan; and
WHEREAS, Borrower has requested that Agent and the Lenders consent to
the purchase of a new high speed diaper machine and the release of two existing
machines as "trade-ins" on such purchased equipment; and
WHEREAS, Agent and the Lenders have agreed to the requested amendments
on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree that all capitalized terms not
otherwise defined herein shall have the meanings ascribed to such terms in the
Loan Agreement and further agree as follows:
1. Amendments to Loan Agreement.
(a) Amendments to Section 1.1 of the Loan Agreement. Section 1.1,
"Definitions," is hereby amended and modified as follows:
(i) The definition of "Eligible Accounts" is hereby amended and
modified by deleting cause (i)(c) thereof in its entirety and substituting
the following in lieu thereof:
"(c) in the case of Wal-Mart, fifty-five percent (55%) of all
Eligible Accounts from October 31, 2002 to December 31, 2002, and fifty
percent (50%) of all Eligible Accounts thereafter; and"
(ii) The definition of "LIBOR Rate Loan" is hereby amended and
modified by deleting such definition in its entirety and substituting the
following in lieu thereof:
""LIBOR Rate Loan" means each Borrowing of an Advance that bears
interest at a rate determined by reference to the LIBOR Rate."
(iii) The definition of "Maximum Amount" is hereby amended and
modified by deleting such definition in its entirety and substituting the
following in lieu thereof:
""Maximum Amount" means $30,000,000."
(b) Amendment to Section 2.6 of the Loan Agreement. Section 2.6 of
the Loan Agreement, "Interest Rates and Letter of Credit Fee: Rates. Payments,
and Calculations," is hereby amended and modified by deleting clause (a),
"Interest Rates", thereof in its entirety and substituting the following in lieu
thereof:
"(a) Interest Rates. Except as provided in clause (c) below, all
Obligations (except for undrawn Letters of Credit) that have been charged
to the Loan Account pursuant to the terms hereof shall bear interest on the
Daily Balance thereof as follows: (i) if the relevant Obligation is an
Advance made as a LIBOR Rate Loan, at a per annum rate equal to the LIBOR
Rate plus the margin (as determined below) in effect from time to time in
connection with LIBOR Rate Loans (the
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"LIBOR Rate Margin") with respect to Advances, (ii) if the relevant
Obligation is a Capital Expenditure Loan or Term Loan, at a per annum rate
equal to the Base Rate plus the margin (as determined below) in effect from
time to time in connection with Base Rate Loans (the "Base Rate Margin")
with respect to Capital Expenditure Loans and the Term Loan, and (iii) all
other Obligations (except for undrawn Letters of Credit), at a per annum
rate equal to the Base Rate plus the Base Rate Margin in effect for
Advances made as Base Rate Loans. From the Closing Date to the First
Adjustment Date, the Base Rate Margin in connection with Advances shall be
2.25%, the Base Rate Margin in connection with Capital Expenditure Loans
and the Term Loan shall be 2.75%, and the LIBOR Rate Margin in connection
with Advances shall be 3.75%. Commencing on the later of March 31, 2002 or
the sixth (6th) day following the delivery of Borrower's financial
statements to Agent for the fiscal year ending December 31, 2001 (the
"First Adjustment Date") and on each Adjustment Date thereafter, the Base
Rate Margin and the LIBOR Rate Margin shall each be adjusted to be the
interest rate margin based upon the Total Debt to EBITDA Ratio for the 12
fiscal months then ended as set forth in such financial statements
delivered to Agent pursuant to Section 6.3(a) as of the fiscal quarter end
preceding such Adjustment Date, and expressed as a per annum rate of
interest as set forth in the table below.
----------------------------------------------------------------------------
Then the Then the
LIBOR Rate Base Rate
If the Total Debt Type of Loan Margin shall Margin shall
to EBITDA Ratio is: Outstanding: be: be:
----------------------------------------------------------------------------
Less than or Advances 3.25% 1.75%
equal to 2.5 to 1.0 ------------------------------------------------------
Term Loan, N/A 2.25%
Capital Expenditure Loan
----------------------------------------------------------------------------
Greater than 2.5 Advances 3.50% 2.00%
to 1.0 but less ------------------------------------------------------
than 3.0 to 1.0 Term Loan, N/A 2.50%
Capital Expenditure Loan
----------------------------------------------------------------------------
Greater than 3.0 Advances 3.75% 2.25%
to 1.0 but less ------------------------------------------------------
than 3.5 to 1.0 Term Loan, N/A 2.75%
Capital Expenditure Loan
----------------------------------------------------------------------------
Greater than 3.5 Advances 4.00% 2.50%
to 1.0 but less ------------------------------------------------------
than 4.0 to 1.0 Term Loan, N/A 3.00%
Capital Expenditure Loan
----------------------------------------------------------------------------
Equal to or Advances 4.25% 2.75%
greater than 4.0 ------------------------------------------------------
to 1.0 Term Loan, N/A 3.25%
Capital Expenditure Loan
----------------------------------------------------------------------------
(c) Amendments to Section 2.13 of the Loan Agreement. Section 2.13,
"LIBOR Option," is hereby amended and modified as follows:
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(i) Clause (a) of Section 2.13 is hereby amended and modified by
deleting the phrase "Term Loan or Capital Expenditure Loans" from the first
sentence of such clause.
(ii) Clause (a) of Section 2.13 is hereby further amended and
modified by deleting the phrase "or Capital Expenditure Loans or portions
of the Term Loan" from the last sentence of such clause.
(iii) Clause (b)(i) of Section 2.13 is hereby amended and
modified by deleting the phrase "or the Term Loan" from the second sentence
of such clause.
(d) Amendment to Section 3.3 of the Loan Agreement. Section 3.3 of the
Loan Agreement, "Conditions Precedent to all Extensions of Credit," is hereby
amended and modified by deleting subsection 3.3(e) in its entirety and
substituting the following in lieu thereof:
"(e) with regard to any Capital Expenditure Loan, Borrower and
DSG shall have satisfied all of their respective obligations under the
Settlement Agreement, and Excess Availability (after subtracting the amount
of any payables of Borrower that are more than 60 days past due) shall be
$5,000,000 or more for at least thirty (30) consecutive days prior to the
date of such Capital Expenditure Loan."
(e) Amendment to Schedule C-1 of the Loan Agreement. Schedule C-1 of
the Loan Agreement, Commitments, is hereby amended and modified by deleting
Schedule C-1 in its entirety and substituting the schedule attached to this
Amendment as Annex A in lieu thereof.
(f) Amendment to Schedule L-1 of the Loan Agreement. Schedule L-1 of
the Loan Agreement, Form of LIBOR Notice, is hereby amended and modified by
deleting the following language from the second full paragraph thereof, "an
outstanding portion of the Term Loan / outstanding Capital Expenditure Loans."
(g) Amendment to Schedule P-1 of the Loan Agreement. Schedule P-1 of
the Loan Agreement, Permitted Liens, is hereby amended and modified by adding
the following language at the end thereof: "Liens on that certain high speed
diaper machine, model number J4-MV Baby Diaper Machine, serial number WM 3270."
(h) Amendment to Schedule 5.20 of the Loan Agreement. Schedule 5.20 of
the Loan Agreement, Permitted Indebtedness, is hereby amended and modified by
adding the following language at the end thereof: "All obligations of Borrower
under that certain Promissory Note, dated as of October 8, 2002, in the
principal amount of $2,705,250, issued by Borrower in favor of Xxxx X. XXX,
Inc."
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(i) Conversion. To the extent that as of the date of this Amendment
there are outstanding any Obligations constituting a portion of a Capital
Expenditure Loan or a Term Loan made as a LIBOR Rate Loan, then each such
Obligation shall automatically and without further action on the part of the
parties hereto be deemed converted into a Base Rate Loan on the date immediately
following the last day of the Interest Period applicable to such LIBOR Rate
Loan.
2. Waivers Regarding Purchase of JOA Equipment.
(a) Agent and the Lenders hereby consent to the purchase (the "JOA
Purchase") of that certain high speed diaper machine, model number J4-MV Baby
Diaper Machine, serial number WM 3270-1899 (the "Purchased Equipment"), from
Xxxx X. XXX, Inc. and waive compliance with Sections 5.5, 6.6, 6.9, 7.1, 7.4 and
7.17 of the Loan Agreement, as necessary to permit Borrower to consummate such
purchase transaction, including (i) the transfer of certain existing equipment
to Xxxx X. XXX, Inc. (model number SN 500-90, serial number 5651043-F and model
number SN 500-90, serial number 660M1073-F; the "Trade-in Equipment") valued at
$262,500 each as "trade-ins" for the Purchased Equipment and (ii) use of
Advances to fund start-up costs necessary to make the Purchased Equipment
operational, upon the following terms and conditions:
(b) the terms of the JOA Purchase will be set forth in a Purchase
Agreement, a Promissory Note (the "Note") and a Security Agreement, each in
substantially the form attached hereto as Annex X-x, Annex B-2 and Annex B-3,
respectively;
(c) Borrower shall use proceeds from Advances to make a prepayment in
the aggregate amount of $224,400 towards the outstanding Term Loans associated
with the disposition of the Trade-in Equipment; provided however that, except as
provided herein, no other amounts, advances, fees, costs, borrowings, charges or
the like shall be made or incurred or deemed made or incurred under the Loan
Agreement in connection with the Trade-In Equipment or the JOA Purchase;
(d) the Lenders shall have the right of first refusal to extend
financing to Borrower on equivalent terms to any valid competing offer to
refinance the final scheduled payment under the Note, and if the Lenders fail to
exercise the foregoing right of first refusal, Borrower may refinance the final
scheduled payment under the Note upon the terms set forth in the valid competing
offer;
(e) upon satisfaction in full of Borrower's obligations under the Note
or in connection with any third-party refinancing, Agent shall be granted a
first priority security interest in the Purchased Equipment; and
(f) Borrower shall provide such other information, documents,
instruments or approvals as Agent or Agent's counsel may reasonably require;
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provided, however, the above-referenced waiver shall not waive any other
requirement or hinder, restrict or otherwise modify the rights and remedies of
Agent or the Lenders following the occurrence of any Default or Event of Default
under the Loan Agreement, including, but not limited to, any future defaults by
Borrower of the covenants contained in Sections 5.5, 6.6, 6.9, 7.1, 7.4 and 7.17
of the Loan Agreement. Agent and the Lenders hereby consent to and authorize
Agent to release any and all liens or security interests held by them pursuant
to the Loan Agreement against the Trade-in Equipment. Agent and the Lenders
acknowledge that, as of the effective date of the JOA Purchase, (A) neither
Agent nor the Lenders shall have a continuing right or interest in the Trade-in
Equipment, or proceeds thereof, and (B) until such time as Borrower's
obligations pursuant to the Note have been satisfied, Agent's Lien On the
Purchased Equipment is subordinated to the first priority security interest of
Xxxx X.Xxx in the Purchased Equipment.
(g) Upon execution of this Amendment and consummation of the JOA
Purchase, Agent agrees to file such documents as Borrower may reasonably
request, at Borrrower's expense, in order to release Agent's Lien on the
Trade-in Equipment; including without limitation, UCC-2 or UCC-3 Termination
Statements, as appropriate, for filing in each office where a UCC-1 Financing
Statement has been filed or other instruments are required to terminate the
filings or recordings in favor of Agent with respect to the Trade-in Equipment.
3. No Other Amendments or Waivers. The execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy of Agent or the Lenders under the Loan Agreement or any of the
other Loan Documents, nor constitute a waiver of any provision of the Loan
Agreement or any of the other Loan Documents. Except for the amendments set
forth above, the text of the Loan Agreement and all other Loan Documents shall
remain unchanged and in full force and effect and Borrower hereby ratifies and
confirms its obligations thereunder. This Amendment shall not constitute a
modification of the Loan Agreement or any of the other Loan Documents or a
course of dealing with Agent or the Lenders at variance with the Loan Agreement
or the other Loan Documents such as to require further notice by Agent or the
Lenders to require strict compliance with the terms of the Loan Agreement and
the other Loan Documents in the future, except as expressly set forth herein.
Borrower acknowledges and expressly agrees that Agent and the Lenders reserve
the right to, and do in fact, require strict compliance with all terms and
provisions of the Loan Agreement and the other Loan Documents. Borrower has no
knowledge of any challenge to Agent's or any Lenders' claims arising under the
Loan Documents, or to the effectiveness of the Loan Documents.
4. Conditions Precedent to Effectiveness. This Amendment shall become
effective as of the date hereof when, and only when, Agent shall have received:
6
(a) an amendment fee from Borrower in the amount of $30,000, which fee
shall be fully earned and non-refundable when paid (it being understood that, by
execution and delivery of this Amendment, Borrower authorizes Agent to charge
Borrower's Loan Account for such fee and such amount shall thereafter accrue
interest at the rate applicable to Advances under the Loan Agreement in
accordance with Section 2.6 of the Loan Agreement);
(b) counterparts of this Amendment duly executed and delivered by
Borrower and the Lenders; and
(c) such other information, documents, instruments or approvals as
Agent or Agent's counsel may reasonably require.
5. Representations and Warranties of Borrower. Borrower represents and
warrants as follows:
(a) Borrower is a limited liability company organized, validly
existing and in good standing under the laws of the jurisdiction indicated at
the beginning of this Amendment and all other jurisdictions in which the failure
to be so qualified reasonably could be expected to constitute a Material Adverse
Change;
(b) The execution, delivery, and performance by Borrower of this
Amendment and the Loan Documents to which it is a party, as amended hereby, are
within Borrower's limited liability company powers, have been duly authorized by
all necessary limited liability company action and do not and will not (i)
violate any provision of federal, state, or local law or regulation applicable
to Borrower, the Governing Documents of Borrower, or any order, judgment, or
decree of any court or other Governmental Authority binding on Borrower, (ii)
conflict with, result in a breach of, or constitute (with due notice or lapse of
time or both) a default under any material contractual obligation of Borrower,
(iii) result in or require the creation or imposition of any Lien of any nature
whatsoever upon any properties or assets of Borrower, other than Permitted
Liens, or (iv) require any approval of Borrower's members or any approval or
consent of any Person under any material contractual obligation of Borrower;
(c) The execution, delivery, and performance by Borrower of this
Amendment and the Loan Documents to which it is a party, as amended hereby, do
not and will not require any registration with, consent, or approval of, or
notice to, or other action with or by, any Governmental Authority or other
Person;
(d) This Amendment and each other Loan Document to which Borrower is a
party, and all other documents contemplated hereby and thereby, when executed
and delivered by Borrower will be the legally valid and binding obligations of
Borrower, enforceable against Borrower in accordance with their respective
terms, except as enforcement may be limited by equitable principles or by
bankruptcy, insolvency,
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reorganization, moratorium, or similar laws relating to or limiting creditors'
rights generally; and
(e) After giving effect to this Amendment, no Default or Event of
Default exists.
6. Counterparts. This Amendment may be executed in multiple counterparts,
each of which shall be deemed to be an original and all of which, taken
together, shall constitute one and the same agreement. In proving this Amendment
in any judicial proceedings, it shall not be necessary to produce or account for
more than one such counterpart signed by the party against whom such enforcement
is sought. Any signatures delivered by a party by facsimile transmission shall
be deemed an original signature hereto.
7. Reference to and Effect on the Loan Documents. Upon the effectiveness of
this Amendment, on and after the date hereof each reference in the Loan
Agreement to "this Agreement," "hereunder," "hereof" or words of like import
referring to the Loan Agreement, and each reference in the other Loan Documents
to "the Loan Agreement" "thereunder," "thereof" or words of like import
referring to the Loan Agreement, shall mean and be a reference to the Loan
Agreement as amended hereby.
8. Costs, Expenses and Taxes. Borrower agrees to pay on demand all costs
and expenses in connection with the preparation, execution, and delivery of this
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for Agent with respect thereto and with respect to advising Agent as to
its rights and responsibilities hereunder and thereunder.
9. Governing Law. This Amendment shall be deemed to be made pursuant to the
laws of the State of Georgia with respect to agreements made and to be performed
wholly in the State of Georgia, and shall be construed, interpreted, performed
and enforced in accordance therewith.
10. Loan Document. This Amendment shall be deemed to be a Loan Document for
all purposes.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the day and year first written above.
BORROWER: ASSOCIATED HYGIENIC PRODUCTS LLC
By: /s/ XXXXXX X. XXXXXXX III
----------------------------
Name: XXXXXX X. XXXXXXX III
Title: CHIEF EXECUTIVE OFFICER
AGENT
and LENDER: FOOTHILL CAPITAL CORPORATION,
as Agent and a Lender
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
9
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Amendment as of the day and year first written above.
BORROWER: ASSOCIATED HYGIENIC PRODUCTS LLC
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
AGENT
and LENDER: FOOTHILL CAPITAL CORPORATION,
as Agent and a Lender
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: Senior Vice President
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Annex A
Schedule C-1
Commitments
--------------------------------------------------------------------------------------------
Term Loan A Term Loan B Term Loan C
Revolver Commitment Commitment Commitment Total
Lender Commitment (subfacility) (subfacility) (subfacility) Commitment
--------------------------------------------------------------------------------------------
Foothill Capital $30,000,000 $2,780,601 $2,934,365 $2,997,034 $30,000,000
Corporation
--------------------------------------------------------------------------------------------
All Lenders $30,000,000 $2,780,601 $2,934,365 $2,997,034 $30,000,000
--------------------------------------------------------------------------------------------
Annex B-1
Form Purchase Agreement for JOA Purchase
Attachment A
JOA Model J4-MV Baby Diaper Machine per Specification QW010397 dated November 2,
2001, and QW020159-E, dated October 4, 2002. Equipment includes:
.. 3 Dimensional core former
.. Timed debulking unit
.. Upper tissue
.. Waistband applicator & unwind
.. Frontal tape applicator & unwind w/off-line loop material unwind & entrance
kit
.. On-line glue hardware
.. ADL applicator & unwind
.. Nonwoven unwind with space for AHP uni-cuff folder
.. Soft backsheet laminator
.. Rotomatic tape applicator
.. C-fold
.. Bi-fold
.. 5 Sprocket horizontal stacker w/2 discharge stations
.. (1) size change kit to product our Size 6 product
.. Nordson ATS hotmelt system ($275,000 OEM allowance is included)
.. Acrison Gravimetric SAP System ($85,000 allowance is included)
.. 3/4" pitch on stacker for no extra cost
.. 19.5" width capability for nonwoven included.
.. Full-width lamination capability (up to 15")
.. Innovent pockets at no additional cost
.. Free installation of Vision system
.. Nexen Air clutches instead of standard clutches at no charge (Air Champ TL
50A-E for most uses, and TL 60-A for knife sections)
.. Vacuum filters on splice units at no cost
.. New style spreader rolls (At appropriate stations) with single bearings
(cantilevered) at no charge
.. Dual vacuum manifolds on AD applicator unit at no cost
.. 30 gallon air accumulator at stacker at no cost
.. Longer stacker carriage capability at no cost
.. End tab detect optics included
PRICE US $3,650,250
--------------------------------------------------------------------------------
Trade Option:
Base Price ................................................... US$3,650,250
Credit for (2) used JOA Napkin lines "Trade-in" ........... (US$ 525,000)
Equipment Price ........................................... US$3,125,250
Finance Charge ............................................ US$ 80,000
-------------
TOTAL PRICE ............................................... US$3,205,250
NOTE: Price includes 160 hours technical service (travel & living expenses
by customer).
Price includes one (1) Lyora unwind vs. the two (2) specified.
The removal of the 2 JOA Napkin lines by Xxxx X. Xxx Inc. can be facilitated
3-4 weeks after October 11, 2002.
Schedule:
Based on today's engineering and manufacturing workload, shipment would be
approximately 18-20 weeks from receipt of purchase order and down payment.
Terms of Payment:
-----------------
Oct. 11, 2002 Down Payment with Order........................US$ 500,000
Apr. 1, 2003 Progress Payment...............................US$ 100,000
May 1, 2003 Progress Payment...............................US$ 100,000
June 1, 2003 Progress Payment...............................US$ 100,000
July 1, 2003 Progress Payment...............................US$ 100,000
Aug. 1, 2003 Progress Payment...............................US$ 100,000
Sept. 1, 2003 Progress Payment...............................US$ 100,000
Oct. 1, 2003 Progress Payment...............................US$ 100,000
Nov. 1, 2003 Progress Payment...............................US$ 100,000
Dec. 1, 2003 Progress Payment...............................US$ 100,000
Jan. 1, 2004 Progress Payment...............................US$ 100,000
Feb. 1, 2004 Progress Payment...............................US$ 100,000
Mar. 1, 2004 Progress Payment...............................US$ 100,000
Apr. 1, 2004 Final Payment..................................US$1,505,250
NOTE: Xxxx X. Xxx, Inc. will hold title of the equipment until final payment is
received on April 1, 2004 through a promissory note. Foothill Capital
Corporation will be granted a second priority interest until Final Payment
is made.
The April 1, 2003 payment and subsequent payments will be delayed if
shipment of the machine is delayed. The first $100,000 payment will
begin the first month after the machine is fully installed and making
pads no earlier than April 1, 2003..
Future Equipment Purchase Incentive:
Within 12 months from receipt of purchase order of the machine proposed herein,
JOA offers the following discounted price for duplicate machine orders based on
US $3,650,250 base price. If the duplicate machine is ordered within 6 months, a
rebate of $46,000 will be credited against the final payment of the first
machine proposed herein.
Order of Qty. 1, price each.........................................US$3,504,000
Order of Qty. 2, price each.........................................US$3,395,000
Purchase Order
Vancouver Maintenance Parts DUPLICATE
Associated Hygienic Products LLC --------------------------------------------------------
Vancouver Maintenance Parts Purchase Order Date Revision Page
000 XX Xxxxxxxx Xxx VANMP 0000003546 10/01/2002 1
Xxxxxxxxx XX 00000 --------------------------------------------------------
United States Payment Terms Freight Terms Ship Via
Scheduled Customer Pickup at Factory PICKUP
--------------------------------------------------------
Buyer: Xxxxxxxx Xxxx Currency Code: USD
--------------------------------------------------------
Vendor: 0000000000 Ship To: Associated Hygienic Products LLC
XXXX X XXX INC. Vancouver Maintenance Parts
BIN NO 53193 000 XX Xxxxxxxx Xxx
XXXXXXXXX XX 00000 Xxxxxxxxx XX 00000
Xxxxxx Xxxxxx Xxxxxx Xxxxxx
Xxxx To: Associated Hygienic Products LLC
0000 XXXXX XXXXX XXXXXXX
XXXXXX XX ______
United States
Tax Exempt: Y Tax Exempt ID: NONE AVAILABL
----------------------------------------------------------------------------------------------------------------------
______________ Description Mfg ID Quantity ___ PO Prize Extended Amt Due Date
----------------------------------------------------------------------------------------------------------------------
JOA Model J4-MV Baby 1.00 __ 3,205,250.00 3,205,250.00 01/01/2003
Diaper Machine Schedule Total 3,205,250.00
------------
Item Total 3,205,250.00
------------
SEE ATTACHMENT A
Total PO Amount 3,205,250.00
------------
----------------------------------------------------------------------------------------------------------------------
Authorized Signature
--------------------------------
Annex B-2
Form Promissory Note for JOA Purchase
PROMISSORY NOTE
$2,705,250.00
Sheboygan Falls, Wisconsin
October , 2002
--
FOR VALUE RECEIVED, ASSOCIATED HYGIENIC PRODUCTS LLC, a Delaware limited
liability company (the "Borrower") hereby promises to pay to the order of XXXX
X. XXX, INC. (the "Lender"), the principal sum of TWO MILLION SEVEN HUNDRED FIVE
THOUSAND TWO HUNDRED FIFTY AND 00/100 DOLLARS ($2,705,250.00) plus accrued and
unpaid interest on or before April 1, 2004, in the manner set forth hereinafter,
or such earlier date as the outstanding principal balance and accrued and unpaid
interest shall become due pursuant to Section 6(b) below. The Borrower also
promises to pay interest on the outstanding principal balance at the rates and
on the dates set forth in Section 2 below.
1. Principal Payments. The outstanding principal balance of this Note shall
be repaid as follows: (a) One Million Two Hundred Thousand and 00/100 Dollars
($1,200,000.00) shall be payable in twelve (12) equal consecutive monthly
installments of One Hundred Thousand and 00/100 Dollars ($100,000.00) due on the
first day of each calendar month commencing on April 1, 2003; and (b) a final
payment of One Million Five Hundred Five Thousand Two Hundred Fifty and 00/100
Dollars ($1,505,250.00) due on April 1, 2004.
2. Interest. Upon the occurrence and during the continuance of an Event of
Default (as defined in Section 6 below), the aggregate unpaid principal amount
of this Note shall bear interest at an annual rate equal to 8%.
3. Payments. All interest and principal payments due under this Note shall
be made in lawful money of the United States of America to the Lender at the
principal office of the Lender as set forth below, or to such other address, or
by wire transfer to such account, as may be designated from time to time by the
Lender to the Borrower in writing.
4. Optional Prepayment. The Borrower may, at any time, prepay the
outstanding principal balance of this Notein inverse order of maturity in whole
or in part without premium or penalty; provided, however, that in the event of
any such prepayment, the Borrower shall also pay all accrued and unpaid interest
on the principal amount prepaid. The Borrower may not reborrow the amount of any
such principal prepayment.
5. Application of Payments. All payments on the indebtedness evidenced by
this Note shall be applied first to pay any and all costs incurred by or on
behalf of the holder hereof and next to pay interest hereon and finally to pay
principal.
6. Event of Defaults; Remedies.
(a) Event of Default. As used in this Note, an "Event of Default"
shall mean any one of the following:
(i) The Borrower shall: (A) become insolvent or take or fail to
take any action which constitutes an admission of inability to pay its debts as
they mature, (B) make a general assignment for the benefit of creditors or to an
agent authorized to liquidate any substantial amount of its assets, (C) become
the subject of an "order for relief" within the meaning of the United States
Bankruptcy Code, (D) file a petition in bankruptcy, or for reorganization, or to
effect a plan or other arrangement with creditors, (E) file an answer to a
creditor's petition, admitting the material allegations thereof, for an
adjudication of bankruptcy or for reorganization or to effect a plan or other
arrangement with creditors, (F) apply to a court for the appointment of a
receiver or custodian for any of its assets or properties, or (G) have a
receiver or custodian appointed for any of its assets or properties, with or
without consent, and such receiver shall not be discharged within sixty (60)
days after his appointment; or
(ii) The Borrower dissolves or liquidates; or
(iii) The Borrower shall fail to pay when due any installment of
the principal or interest under this Note;
(iv) A default occurs under the Selective Business Security
Agreement referred to in Section 8 hereof; or
(v) Any representation or warranty made or deemed made by or on
behalf of the Borrower to the Lender under or in connection with this Note, the
Selective Business Security Agreement referred to in Section 8 hereof, or any
certificate or information delivered in connection with this Note shall be
materially false on the date as of when made or delivered.
(b) Remedies.
(i) Upon the occurrence of any Event of Default, then without
notice, demand or action of any kind by the Lender, the entire amount of unpaid
principal and accrued and unpaid interest under this Note shall be automatically
and immediately due and payable.
(ii) Upon the occurrence of an Event of Default, the Borrower
agrees to pay all reasonable fees and expenses incurred by the Lender, including
the reasonable fees of counsel, in connection with the protection and
enforcement of the rights of the Lender under this Note, including without
limitation the collection of any amounts due under this Note and the protection
and enforcement of such rights in any bankruptcy, reorganization or insolvency
proceeding involving the Borrower.
(iii) No remedy herein conferred upon the Lender is intended to
be exclusive of any other remedy and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Note
or now or hereafter existing by law. No failure or delay on the part of the
Lender in exercising any right or remedy hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any right hereunder preclude
other or further exercise.
7. Notices. All notices given hereunder shall be in Writing and (a)
delivered, (b) sent by express or first class mail, or (c) sent by facsimile to
the number set forth below, or to such other
-2-
address with respect to either party as such party shall notify the other in
writing; such notices shall be deemed given when delivered, mailed or
transmitted:
If to the Borrower:
Associated Hygienic Products LLC
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Facsimile No. (000) 000-0000
If to the Lender:
Xxxx X. Xxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Facsimile No. (000) 000-0000
8. Security. All of the obligations evidenced by this Note are secured by
that certain Selective Business Security Agreement of even date herewith from
the Borrower to the Lender.
9. Waiver. The Borrower hereby waives presentment for payment, protest and
demand, notice of protest and demand.
10. Waiver of Jury Trial: THE BORROWER (AND THE LENDER BY ACCEPTANCE OF
THIS NOTE) HEREBY AGREE THAT THE BORROWER AND THE LENDER IRREVOCABLY WAIVE ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE.
11. Governing Law. This Note shall be governed by the substantive law of
the State of Wisconsin.
12. No Violation. The Borrower represents that no agreement to which it is
a party would prohibit it from entering into this Note or enforcing any term of
this Note against it.
ASSOCIATED HYGIENIC PRODUCTS LLC
--------------------------------
Its:
---------------------------
-3-
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
==============================================
A. NAME & PHONE OF CONTACT AT FILER [optional]
Xxxxx X. Xxxxxx
----------------------------------------------
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
Xxxxx X. Xxxxxx
Xxxxxxx & Xxxxx LLP
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY
====================================================================================================================================
1. DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (1a or 1b) - do not abbreviate or combine names
---------------------------------------------------------------------------------------------------------------------------------
1a. ORGANIZATION'S NAME
Associated Hygienic Products LLC
OR ---------------------------------------------------------------------------------------------------------------------------------
1b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
1c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
0000 Xxxxx Xxxxx Xxxxxxx Xxxxxx XX 00000 U.S.A.
------------------------------------------------------------------------------------------------------------------------------------
1d. SEE INSTRUCTIONS ADD'L INFO RE 1e. TYPE OF ORGANIZATION 1f. JURISDICTION OF ORGANIZATION 1g. ORGANIZATION ID #, if any
ORGANIZATION
DEBTOR Delaware [ ] NONE
====================================================================================================================================
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not abbreviate or combine names
---------------------------------------------------------------------------------------------------------------------------------
2a. ORGANIZATION'S NAME
OR ---------------------------------------------------------------------------------------------------------------------------------
2b. INDIVIDUAL'S LAST, NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
2c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
------------------------------------------------------------------------------------------------------------------------------------
2d. SEE INSTRUCTIONS ADD'L INFO RE 2e. TYPE OF ORGANIZATION 2f. JURISDICTION OF ORGANIZATION 2g. ORGANIZATION ID #, if any
ORGANIZATION
DEBTOR [ ] NONE
====================================================================================================================================
3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P)-insert only one secured party name (3a or 3b)
---------------------------------------------------------------------------------------------------------------------------------
3a. ORGANIZATION'S NAME
Xxxx X. Xxx, Inc.
OR ---------------------------------------------------------------------------------------------------------------------------------
3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX
------------------------------------------------------------------------------------------------------------------------------------
3c. MAILING ADDRESS CITY STATE POSTAL CODE COUNTRY
000 Xxxxxxx Xxxxxx Xxxxxxxxx Xxxxx XX 00000 X.X.X.
====================================================================================================================================
4. This FINANCING STATEMENT covers the following collateral:
JOA Model J4-MV Baby Diaper Machine, Serial No. WM3270-1899 as offered on Quotation No. QW020159-E dated October 4, 2002.
====================================================================================================================================
5. ALTERNATIVE DESIGNATION [if applicable]: [ ] LESSEE/LESSOR [ ] CONSIGNEE/CONSIGNOR [ ] BAILEE/XXXXXX [ ] SELLER/BUYER [ ]
AG. LIEN [ ] NON-UCC FILING
====================================================================================================================================
6. [ ] This FINANCING STATEMENT is to be filed [for 7. Check to REQUEST SEARCH REPORT(S) [ ] All Debtors [ ] Debtor 1 [ ] Debtor 2
record] [or recorded] in the REAL ESTATE RECORDS on Debtor(s) [ADDITIONAL FEE]
Attach Addendum [applicable] [optional]
====================================================================================================================================
8. OPTIONAL FILER REFERENCE DATA
====================================================================================================================================
FILING OFFICE COPY -- UCC FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)
WIUCCIPNAT - 10/01/02 C T CORPORATION SYSTEM
Annex B-3
Form Security Agreement for JOA Purchase
SELECTIVE BUSINESS SECURITY AGREEMENT
1. SECURITY INTEREST
Wisconsin Bankers Association 1990 Dated October , 2002
--
The undersigned ("Debtor") grants Xxxx X. Xxx, Inc. ("Lender") a security
interest in property, wherever located, checked in Section 2 ("Collateral") to
secure all debts, obligations and liabilities, Debtor to Lender arising out of,
credit contemporaneously granted by Lender to Debtor, ("Obligations").
2. DESCRIPTION OF COLLATERAL
One or more boxes must be checked.
(a) [ ] All Collateral. If checked here, all equipment, fixtures,
inventory (including all goods held for sale, lease or
demonstration or to be furnished under contracts of service,
goods leased to others, trade-ins and repossessions, raw
materials, work in process and materials or supplies used or
consumed in Debtor's business), documents relating to inventory,
general intangibles, accounts, contract rights, chattel paper and
instruments, now owned or hereafter acquired by Debtor (or by
Debtor with spouse);
(b) [ ] Scheduled Collateral. If checked here, all inventory, accounts,
contract rights, equipment, general intangibles, instruments,
documents of title and chattel paper described in the attached
schedule and any additional schedules delivered by Debtor to
Lender from time to time;
(c) [X] Specific Collateral. If checked here, the following described
property now owned or hereafter acquired by Debtor Joa Model
J4-MV Baby Diaper Machine, Serial No. WM 3270-1899 as purchased
under Purchase Order No. VNAMP 0000003546 dated Oct, 8, 2002
(d) [ ] All Inventory. If checked here, all inventory and documents
relating to inventory now owned or hereafter acquired by Debtor
(or by Debtor with spouse), including all goods held for sale,
lease or demonstration or to be furnished under contracts of
service, goods leased to others, trade-ins and repossessions, raw
materials, work in process and materials or supplies used or
consumed in Debtor's business;
(e) [ ] All Receivables. If checked here, all acoounts, contract rights,
chattel paper and instruments now owned or hereafter acquired by
Debtor (or by Debtor with spouse);
(f) [ ] All equipment. If checked here, all equipment and fixtures now
owned or hereafter acquired by Debtor (or by Debtor with spouse);
(g) [ ] All General Intangibles. If checked here, all general intangibles
now owned or hereafter acquired by Debtor (or by Debtor with a
spouse);
and all additions and accessions to, all spare and repair parts, special tools,
equipment and replacements for, all returned or repossessed goods the sale of
which _______ to, and all proceeds and products of the foregoing.
3. DEBTOR'S WARRANTIES
Debtor warrants that while any at the Obligations are unpaid:
(a) Ownership. Debtor owns the Collateral free of all encumbrances and
security interests (except Lender's purchase money security interest and
Foothill Capital Corporation's security interest). No financing statement (other
than Lender's and Foothill Capital Corporation's) is on file covering the
Collateral. Debtor, acting alone (having obtained the prior written consent of
Foothill Capital Corporation), may grant a security interest in the Collateral.
(f) Valid incorporation. Debtor is duly organized, validly existing and in
good standing under the laws of the state of Delaware and is licensed to do
business in Washington.
(g) Other agreements. Debtor is not in default under any material agreement
for the payment of money.
(h) Authority to contract. The execution and delivery of this Agreement and
any instruments evidencing Obligations will not violate or constitute a
____________ of Debtor's articles of incorporation, by-laws, partnership
agreement or any agreement or restriction to which Debtor is a party or is
subject.
(i) Accuracy of information. All information, certificates or statements
given to Lender pursuant to this Agreement shall be true and complete when
given.
(j) Addresses. The address of Debtor's place of business, or if Debtor has
more than one place of business, then the address of the Debtor's chief
executive office, is shown opposite Debtor's signature. The address where the
Collateral will be kept, if different from that appearing opposite Debtor's
signature, is 000 X.X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000. Such locations
shall not be changed without prior written consent of Lender, but the parties
intend that the Collateral, wherever located, is covered by this Agreement.
(k) Change of name or address. Debtor shall immediately advise Lender in
writing of any change in name of chief executive office.
(l) Environmental laws. To the knowledge of the senior management of
Debtor, Debtor is in compliance with all federal, state or local laws,
regulations, ordinance or rules (collectively, "Environmental Laws"), other than
for such non-compliance as could not reasonably be expected to have a material
adverse effect on the business or operations of Debtor. Debtor shall indemnify
and hold harmless Lender, its directors, officers, employees and agents from all
loss, costs (including reasonable attorneys' fees and legal expenses),
liabilities and damages whatsoever directly or indirectly resulting from,
arising out of, or based upon Debtor's noncompliance with Environmental Laws at
any of its facilities or properties at which the Collateral is located.
5. PERSONS BOUND AND OTHER PROVISIONS
This Agreement benefits Lender, its successor and assigns, and binds Debtor
and its successors and assigns. THIS AGREEMENT INCLUDES ADDITIONAL PROVISIONS ON
REVERSE SIDE.
ASSOCIATED HYGIENIC PRODUCTS LLC
(SEAL) By:
---------------------------------- ----------------------------------
(--------------------------------------) (-----------------------------------)
TYPE OF ORGANIZATION (TITLE)
By: *
------------------------------------- ------------------------------------
(--------------------------------------)
(TITLE) Address: 0000 Xxxxx Xxxxx Xxxxxxx
See Section 3(_)
*
--------------------------------------- Xxxxxx, XX 00000
(County)
-----------------------------
* Type or print name above. ORIGINAL BANK COPY
ADDITIONAL PROVISIONS
6. SALE AND COLLECTIONS
(a) Deposit with Lender. At any time Lender may require that all proceeds
of Collateral received by Debtor upon the disposition of the Collateral shall be
held by Debtor upon an express trust for Lender, shall not be commingled with
any other funds or property of Debtor and shall be turned over to Lender in
precisely the form received (but endorsed by Debtor if necessary for collection)
not later than the business day following the day of their receipt. All proceeds
of Collateral received by Lender upon the disposition of the Collateral directly
or from Debtor shall be applied against the Obligations in such order and at
such times as Lender shall determine.
7. DEBTOR'S COVENANTS
Debtor agrees:
(a) Maintenance of Collateral. Debtor shall; maintain the Collateral in
good condition and repair and not permit its value to be impaired: keep it free
from all liens, encumbrances and security interests (other than Lender's
security interest); defend it against all claims and legal proceedings by
persons other than Lender; pay and discharge when due all taxes, license fees,
levies, and other charges upon it; not sell, lease or otherwise dispose of it or
permit it to become a fixture or an accession to other goods, except for sales
or leases of inventory as provided in this Agreement, not permit it to be used
in violation of any applicable law, regulation or policy of insurance. Loss of
or damage to the Collateral shall not release Debtor from any of the
Obligations.
(b) Insurance. Debtor shall keep the Collateral and Lender's interest in it
insured under policies with such provisions, for such amounts and by such
insurers as are typical in Debtor's business, and shall furnish evidence of such
insurance satisfactory to Lender. Debtor assigns (and directs any insurer to
pay) to Lender the proceeds of all such insurance, and authorizes Lender to
indorse in the name of Debtor any instrument for such proceeds and, at the
option of Lender, to apply such proceeds to any unpaid balance of the
Obligations, whether or not due, and/or to restoration of the Collateral,
returning any excess to Debtor.
(c) Maintenance of security interest. Debtor shall pay all expenses and,
upon request, take any action reasonably deemed advisable by Lender to preserve
the Collateral or to establish, determine priority of, perfect, continue
perfected, terminate and/or enforce Lender's interest in it or rights under this
Agreement.
(d) Taxes and other charges. Pay and discharge all lawful taxes,
assessments and government charges upon Debtor or against its properties prior
to the date on which penalties attach, unless and to the extent only that such
taxes, assessments and charges are contested in good faith and by appropriate
proceedings by Debtor.
(e) Records and statements. Debtor shall furnish to Lender financial
statements and such other financial information respecting Debtor at such times
and in such form as Lender may reasonably request. Debtor shall keep accurate
and complete records respecting the Collateral in such form as Lender may
approve. At such times as Lender may reasonably require. Debtor shall furnish to
Lender a statement certified by Debtor and in such form and containing such
information as may be prescribed by Lender, showing the current status and value
of the Collateral.
(f) Inspection of Collateral. Subject to Lender's execution and delivery to
Debtor of a confidentiality agreement in form and substance reasonably
satisfactory to Lender and Debtor, At reasonable times during normal business
hours Lender may examine the Collateral and Debtor's records pertaining to it,
wherever located, and make copies of record (except confidential or ________
records) Debtor shall assist Lender in so doing.
(g) Service charge. In addition to the required payments under the
Obligations and this Agreement, Debtor will pay Lender's service charges in
respect of the Collateral as set forth on Exhibit A attached hereto if Debtor
requests such services and Lender provides such services.
8. RIGHTS OF LENDER
(a) Authority to perform for Debtor. Upon the occurrence of an event of
default or it Debtor fails to perform any of Debtor's duties set forth in this
Agreement or in any evidence of or document relating to the Obligations, Lender
is authorized, in Debtor's name or otherwise, to take any such action including
without limitation signing Debtor's name or paying any amount so required, and
the cost shall be one of the Obligations secured by this Agreement and shall be
payable by Debtor upon demand with interest from the date of payment by Lender
at the highest rate stated in any evidence of any Obligation but not in excess
of the maximum rate permitted by law,
(d) Non-liability of Lender. Lender has no duty to protect, insure, collect
or realize upon the Collateral or preserve rights in it against prior parties.
Debtor releases Lender from any liability for any act or omission relating to
the Obligations, the Collateral or this Agreement, except Lender's gross
negligence willful misconduct.
9. DEFAULT
Upon the occurrence of one or more of the following events of default,
Nonperformance. Debtor fails to pay when due any of the Obligations or to
perform, or rectify breach of, any warranty or other undertaking by Debtor
in this Agreement or in any evidence of or document relating to the
Obligations;
Inability to Perform. Debtor or a surety for any of the Obligations ceases
to exist, becomes insolvent or the subject of bankruptcy or insolvency
proceedings;
Misrepresentation. Any representation made to induce Lender to extend
credit to Debtor, under this Agreement or otherwise, is false in any
material respect when made
all of the Obligations shall, at the option of Lender and without any notice or
demand, become immediately payable; and Lender shall have all rights and
remedies for default provided by the Winsconsin Uniform Commercial Code, as well
as any other applicable law and any evidence of or document relating to any
Obligations. With repect to such rights and remedies.
(a) Repossession. Lender may take possession of Collateral without notice
or hearing, which Debtor waives
(b) Assembling Collateral. Lender may require Debtor to assemble the
Collateral and to make it available to Lender at any convenient place designated
by Lender.
(c) Notice of disposition. Written notice, when required by law, sent to
any address of Debtor in this Agreement at least 10 calendar days (counting the
day of sending) before the date of a proposed disposition of the Collateral is
reasonable notice.
(d) Expenses and application of proceeds. Debtor shall reimburse Lender for
any expense incurred by Lender in protecting or enforcing its rights under this
Agreement before and after judgment, including, without limitation, reasonable
attorneys' fees and legal expenses and all expenses of taking possession,
holding, preparing for disposition and disposing of the Collateral. After
deduction of such expenses, Lender may apply the proceeds of disposition to the
Obligations in such order and amounts as it elects; provided, that once the
Obligations have been satisfied in full, any excess proceeds shall be paid over
to Foothill Capital Corporation.
(e) Waiver. Lender may permit Debtor to remedy any default without waiving
the default so remedied, and Lender may waive any default without waiving any
other subsequent or prior default by Debtor.
10. INTERPRETATION
The validity, construction and enforcement of this Agreement are governed
by the internal laws of Wisconsin. All terms not otherwise defined have the
meanings assigned to them by the Wisconsin Uniform Commercial Code. Invalidity
of any provision of this Agreement shall not affect the validity of any other
provision. This Agreement is intended by the Debtor and Lender as a final
expression of this Agreement and as a complete and exclusive statement of its
terms, there being no conditions to the enforceability of this Agreement This
Agreement may not be supplemented or modified except in writing.
Illegible
[LETTERHEAD OF XXXX X. XXX, INC.]
SERVICE RATES - EFFECTIVE JUNE 1, 2001
TECHNICAN:
Monday - Saturday US$800/day (minimum) plus living and travel expenses.
US$100/hr. in excess of 8 hrs./day.
Sundays & Holidays US$1000/day (minimum) plus living and travel expenses.
US$125/hr. in excess of 8 hrs./day.
ENGINEER:
Monday - Saturday US$1000/day (minimum) plus living and travel expenses.
US$125/hr. in excess of 8 hrs./day.
Sundays & Holidays US$1200/day (minimum) plus living and travel expenses.
US$150/hr. in excess of 8 hrs./day.
TRAVEL TIME (MINIMUM DAILY CHARGE APPLIES - SEE NOTE 2):
Monday - Friday US$80/hr.
Saturday, Sunday & Holidays US$100/hr.
WEEKENDS: US$150/day plus living expenses for Saturday and Sunday
NOTES: with no work.
1. Travel time and working time occurring on the same day will be
combined to meet the minimum daily charge.
2. Minimum daily charge does not apply to travel time occurring on
Saturday, Sunday, Holidays, or any day when the technician or engineer
has worked eight (8) hours in the JOA Factory. In this case, only
travel time will be billed.
3. Weekends and holidays are according to the U.S.A. and Joa calendars,
unless otherwise agreed at the time service is requested.
4. Rates are subject to change and must be confirmed when the service is
requested.
5. Overseas air travel is booked in Business Class. All other flights are
booked in Coach Class, subject to availability.
6. Travel time is determined from the time leaving home, the job site or
hotel and arriving at destination.
7. On extended visits, the technician or engineer is authorized to return
home for a weekend every two (2) weeks within the continental U.S. and
Canada or every four (4) weeks when working in any other location. All
travel time and expenses are to Buyer's account.
XXXX X. XXX, INC.
PROMISSORY NOTE
$2,705,250.00 Sheboygan Falls, Wisconsin
October , 2002
--
FOR VALUE RECEIVED, ASSOCIATED HYGIENIC PRODUCTS LLC, a Delaware limited
liability company (the "Borrower") hereby promises to pay to the order of XXXX
X. XXX, INC. (the "Lender"), the principal sum of TWO MILLION SEVEN HUNDRED FIVE
THOUSAND TWO HUNDRED FIFTY AND 00/100 DOLLARS ($2,705,250.00) plus accrued and
unpaid interest on or before April 1, 2004, in the manner set forth hereinafter,
or such earlier date as the outstanding principal balance and accrued and unpaid
interest shall become due pursuant to Section 6(b) below. The Borrower also
promises to pay interest on the outstanding principal balance at the rates and
on the dates set forth in Section 2 below.
1. Principal Payments. The outstanding principal balance of this Note shall
be repaid as follows: (a) One Million Two Hundred Thousand and 00/100 Dollars
($1,200,000.00) shall be payable in twelve (12) equal consecutive monthly
installments of One Hundred Thousand and 00/100 Dollars ($100,000.00) due on the
first day of each calendar month commencing on April 1, 2003; and (b) a final
payment of One Million Five Hundred Five Thousand Two Hundred Fifty and 00/100
Dollars ($1,505,250.00) due on April 1, 2004.
2. Interest. Upon the occurrence and during the continuance of an Event of
Default (as defined in Section 6 below), the aggregate unpaid principal amount
of this Note shall bear interest at an annual rate equal to 8%.
3. Payments. All interest and principal payments due under this Note shall
be made in lawful money of the United States of America to the Lender at the
principal office of the Lender as set forth below, or to such other address, or
by wire transfer to such account, as may be designated from time to time by the
Lender to the Borrower in writing.
4. Optional Prepayment. The Borrower may, at any time, prepay the
outstanding principal balance of this Notein inverse order of maturity in whole
or in part without premium or penalty; provided, however, that in the event of
any such prepayment, the Borrower shall also pay all accrued and unpaid interest
on the principal amount prepaid. The Borrower may not reborrow the amount of any
such principal prepayment.
5. Application of Payments. All payments on the indebtedness evidenced by
this Note shall be applied first to pay any and all costs incurred by or on
behalf of the holder hereof and next to pay interest hereon and finally to pay
principal.
6. Event of Defaults; Remedies.
(a) Event of Default. As used in this Note, an "Event of Default"
shall mean any one of the following:
(i) The Borrower shall: (A) become insolvent or take or fail to
take any action which constitutes an admission of inability to pay its debts as
they mature, (B) make a general assignment for the benefit of creditors or to an
agent authorized to liquidate any substantial amount of its assets, (C) become
the subject of an "order for relief" within the meaning of the United States
Bankruptcy Code, (D) file a petition in bankruptcy, or for reorganization, or to
effect a plan or other arrangement with creditors, (E) file an answer to a
creditor's petition, admitting the material allegations thereof, for an
adjudication of bankruptcy or for reorganization or to effect a plan or other
arrangement with creditors, (F) apply to a court for the appointment of a
receiver or custodian for any of its assets or properties, or (G) have a
receiver or custodian appointed for any of its assets or properties, with or
without consent, and such receiver shall not be discharged within sixty (60)
days after his appointment; or
(ii) The Borrower dissolves or liquidates; or
(iii) The Borrower shall fail to pay when due any installment of
the principal or interest under this Note;
(iv) A default occurs under the Selective Business Security
Agreement referred to in Section 8 hereof; or
(v) Any representation or warranty made or deemed made by or on
behalf of the Borrower to the Lender under or in connection with this Note, the
Selective Business Security Agreement referred to in Section 8 hereof, or any
certificate or information delivered in connection with this Note shall be
materially false on the date as of when made or delivered.
(b) Remedies.
(i) Upon the occurrence of any Event of Default, then without
notice, demand or action of any kind by the Lender, the entire amount of unpaid
principal and accrued and unpaid interest under this Note shall be automatically
and immediately due and payable.
(ii) Upon the occurrence of an Event of Default, the Borrower
agrees to pay all reasonable fees and expenses incurred by the Lender, including
the reasonable fees of counsel, in connection with the protection and
enforcement of the rights of the Lender under this Note, including without
limitation the collection of any amounts due under this Note and the protection
and enforcement of such rights in any bankruptcy, reorganization or insolvency
proceeding involving the Borrower.
(iii) No remedy herein conferred upon the Lender is intended to
be exclusive of any other remedy and each and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Note
or now or hereafter existing by law. No failure or delay on the part of the
Lender in exercising any right or remedy hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any right hereunder preclude
other or further exercise.
7. Notices. All notices given hereunder shall be in writing and (a)
delivered, (b) sent by express or first class mail, or (c) sent by facsimile to
the number set forth below, or to such other
-2-
address with respect to either party as such party shall notify the other in
writing; such notices shall be deemed given when delivered, mailed or
transmitted:
If to the Borrower:
Associated Hygienic Products LLC
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
Facsimile No. (000) 000-0000
If to the Lender:
Xxxx X. Xxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx Xxxxx, XX 00000
Facsimile No. (000) 000-0000
8. Security. All of the obligations evidenced by this Note are secured by
that certain Selective Business Security Agreement of even date herewith from
the Borrower to the Lender.
9. Waiver. The Borrower hereby waives presentment for payment, protest and
demand, notice of protest and demand.
10. Waiver of Jury Trial: THE BORROWER (AND THE LENDER BY ACCEPTANCE OF
THIS NOTE) HEREBY AGREE THAT THE BORROWER AND THE LENDER IRREVOCABLY WAIVE ANY
AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE.
11. Governing Law. This Note shall be governed by the substantive law of
the State of Wisconsin.
12. No Violation. The Borrower represents that no agreement to which it is
a party would prohibit it from entering into this Note or enforcing any term of
this Note against it.
ASSOCIATED HYGIENIC PRODUCTS LLC
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Its: CHIEF EXECUTIVE OFFICER
-3-
SELECTIVE BUSINESS SECURITY AGREEMENT
1. SECURITY INTEREST
Wisconsin Bankers Association 1990 Dated October , 2002
--
The undersigned ("Debtor") grants Xxxx X. Xxx, Inc., ("Lender") a security
interest in property, wherever located, checked in Section 2 ("Collateral") to
secure all debts, obligations and liabilities of Debtor to Lender arising out
of, credit contemporaneously granted by Lender to Debtor, ("Obligations").
2. DESCRIPTION OF COLLATERAL
One or more boxes must be checked.
(a) [ ] All Collateral. If checked here, all equipment, fixtures,
inventory (including all goods held for sale, lease or
demonstration or to be furnished under contracts of service,
goods leased to others, trade-ins and repossessions, raw
materials, work in process and materials or supplies used or
consumed in Debtor's business), documents relating to inventory,
general intangibles, accounts, contract rights, chattel paper and
instruments, now owned or hereafter acquired by Debtor (or by
Debtor with spouse);
(b) [ ] Scheduled Collateral. If checked here, all inventory, accounts,
contract rights, equipment, general intangibles, instruments,
documents of title and chattel paper described in the attached
schedule and any additional schedules delivered by Debtor to
Lender from time to time;
(c) [X] Specific Collateral. If checked here, the following described
property now owned or hereafter acquired by Debtor: Joa Model
J4-MV Baby Diaper Machine, Serial No, WM 3270-1899 as purchased
under Purchase Order No. VNAMP 4000003546 dated Oct, _, 2002
(d) [ ] All Inventory. If checked here, all inventory and documents
relating to inventory now owned or hereafter acquired by Debtor
(or by Debtor with spouse), including all goods held for sale,
lease or demonstration or to be furnished under contracts of
service, goods leased to others, trade-ins and repossessions, raw
materials, work in process and materials or supplies used or
consumed in Debtor's business;
(e) [ ] All Receivables. If checked here, all accounts, contract rights,
chattel paper and instruments now owned or hereafter acquired by
Debtor (or by Debtor with spouse);
(f) [ ] All Equipment. If checked here, all equipment and fixtures now
owned or hereafter acquired by Debtor (or by Debtor with spouse);
(g) [ ] All General Intangibles. If checked here, all general intangibles
now owned or hereafter acquired by Debtor (or by Debtor with
spouse);
and all additions and accessions to, all spare and repair parts, special tools,
equipment and replacements for, all returned or repossessed goods the sale of
which _________ to, and all proceeds and products of the foregoing.
3. DEBTOR'S WARRANTIES
Debtor warrants that while any of the Obligations are unpaid:
(a) Ownership. Debtor owns the Collateral free of all encumbrances and
security interests (except Lender's purchase money security interest and
Foothill Capital Corporation's security interest). No financing statement (other
than Lender's and Foothill Capital Corporation's) is on file covering the
Collateral. Debtor, acting alone (having obtained the prior written consent of
Foothill Capital Corporation), may grant a security interest in the Collateral.
(f) Valid incorporation. Debtor is duly organized, validly existing and in
good standing under the laws of the state of Delaware and is licensed to do
business in Washington.
(g) Other agreements. Debtor is not in default under any material agreement
for the payment of money.
(h) Authority to contract. The execution and delivery of this Agreement and
any instruments evidencing Obligations will not violate or constitute a _______
of Debtor's articles of incorporation, by-laws, partnership agreement or any
agreement or restriction to which Debtor is a party or is subject.
(i) Accuracy of information. All information, certificates or statements
given to Lender pursuant to this Agreement shall be true and complete when
given.
(j) Addresses. The address of Debtor's place of business, or if Debtor has
more than one place of business, then the address of the Debtor's chief
executive office, is shown opposite Debtor's signature. The address where the
Collateral will be kept, if different from that appearing opposite Debtor's
signature is 000 X.X. Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000. Such locations shall
not be changed without prior written consent of Lender, but the parties intend
that the Collateral, wherever located, is covered by this Agreement.
(k) Change of name or address. Debtor shall immediately advise Lender in
writing of any change in name of chief executive office.
(l) Environmental laws. To the knowledge of the senior management of
Debtor, Debtor is in compliance with all federal, state or local laws,
regulations, ordinance or rules (collectively, "Environmental Laws"), other than
for such non-compliance as could not reasonably be expected to have a material
adverse effect on the business or operations of Debtor. Debtor shall indemnify
and hold harmless Lender, its directors, officers, employees and agents from all
loss, costs (including reasonable attorneys' fees and legal expenses),
liabilities and damages whatsoever directly or indirectly resulting from,
arising out of, or based upon Debtor's noncompliance with Environmental Laws at
any of its facilities or properties at which the Collateral is located.
5. PERSONS BOUND AND OTHER PROVISIONS
This Agreement benefits Lender, its successor and assigns, and binds Debtor
and its successors and assigns. THIS AGREEMENT INCLUDES ADDITIONAL PROVISIONS ON
REVERSE SIDE.
ASSOCIATED HYGIENIC PRODUCTS LLC
(SEAL) By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------- ----------------------------------
CHIEF EXECUTIVE OFFICER
(--------------------------------------) (TITLE)
TYPE OF ORGANIZATION
By: XXXXXX X. XXXXXXX III
------------------------------------- -------------------------------------
(--------------------------------------)
(TITLE) Address: 0000 Xxxxx Xxxxx Xxxxxxx
See Section 3(_)
*
---------------------------------------- Xxxxxx, XX 00000
(County) GWINNETT
* Type or print name above. ORIGINAL BANK COPY
ADDITIONAL PROVISIONS
6. SALE AND COLLECTIONS
(a) Deposit with Lender. At any time Lender may require that all proceeds
of Collateral received by Debtor upon the disposition of the Collateral shall be
held by Debtor upon an express trust for Lender, shall not be commingled with
any other funds or property of Debtor and shall be turned over to Lender in
precisely the form received (but endorsed by Debtor if necessary for collection)
not later than the business day following the day of their receipt. All proceeds
of Collateral received by Lender upon the disposition of the Collateral directly
or from Debtor shall be applied against the Obligations in such order and at
such times as Lender shall determine.
7. DEBTOR'S COVENANTS
Debtor agrees:
(a) Maintenance of Collateral. Debtor shall: maintain the Collateral in
good condition and repair and not permit its value to be impaired: keep it free
from all liens, encumbrances and security interests (other than Lender's
security interest); defend it against all claims and legal proceedings by
persons other than Lender: pay and discharge when due all taxes, license fees,
levies, and other charges upon it; not sell, lease or otherwise dispose of it or
permit it to become a fixture or an accession to other goods, except for sales
or leases of inventory as provided in this Agreement, not permit it to be used
in violation of any applicable law, regulation or policy of insurance. Loss of
or damage to the Collateral shall not release Debtor from any of the
Obligations.
(b) Insurance. Debtor shall keep the Collateral and Lender's interest in it
insured under policies with such provisions, for such amounts and by such
insurers as are typical in Debtor's business; and shall furnish evidence of such
insurance satisfactory to Lender. Debtor assigns (and directs any insurer to
pay) to Lender the proceeds of all such insurance, and authorizes Lender to
indorse in the name of Debtor any instrument for such proceeds and, at the
option of Lender, to apply such proceeds to any unpaid balance of the
Obligations, whether or not due, and/or to restoration of the Collateral,
returning any excess to Debtor.
(c) Maintenance of security interest. Debtor shall pay all expenses and,
upon request, take any action reasonably deemed advisable by Lender to preserve
the Collateral or to establish, determine priority of, perfect, continue
perfected, terminate and/or enforce Lender's interest in it or rights under this
Agreement
(d) Taxes and other charges. Pay and discharge all lawful taxes,
assessments and government charges upon Debtor or against its properties prior
to the date on which penalties attach, unless and to the extent only that such
taxes, assessments and charges are contested in good faith and by appropriate
proceedings by Debtor.
(e) Records and statements. Debtor shall furnish to Lender financial
statements and such other financial information respecting Debtor at such times
and in such form as Lender may reasonably request. Debtor shall keep accurate
and complete records respecting the Collateral in such form as Lender may
approve. At such times as Lender may reasonably require. Debtor shall furnish to
Lender a statement certified by Debtor and in such form and containing such
information as may be presented by Lender, showing the current status and value
of the Collateral.
(f) Inspection of Collateral. Subject to Lender's execution and delivery to
Debtor of a confidentiality agreement in form and substance reasonably
satisfactory to Lender and Debtor. At reasonable times during normal business
hours Lender may examine the Collateral and Debtor's records pertaining to it,
wherever located and make copies of records (except confidential _____________
records) Debtor shall assist Lender in so doing.
(g) Service charge. In addition to the required payments under the
Obligations and this Agreement, Debtor will pay Lender's service charges in
respect of the Collateral as set forth on Exhibit A attached hereto if Debtor
requests such services and Lender provides such services.
8. RIGHTS OF LENDER
(a) Authority to perform for Debtor. Upon the occurrence of an event of
default or if Debtor fails to perform any of Debtor's duties set forth in this
Agreement or in any evidence of or document relating to the Obligations, Lender
is authorized, in Debtor's name or otherwise, to take any such action including
without limitation signing Debtor's name or paying any amount so required and
the cost shall be one of the Obligations secured by this Agreement and shall be
payable by Debtor upon demand with interest from the date of payment by Lender
at the highest rate stated in any evidence of any Obligation but not in excess
of the maximum permitted by law.
(d) Non-liability of Lender. Lender has no duty to protect, insure, collect
or realize upon the Collateral or preserve rights in it against prior parties.
Debtor releases Lender from any liability for any act or omission relating to
the Obligations, the Collateral or this Agreement, except Lender's gross
negligence willful misconduct.
9. DEFAULT
Upon the occurrence of one or more of the following events of default,
Nonperformance. Debtor fails to pay when due any of the Obligations or to
perform, or rectify breach of, any warranty or other undertaking by Debtor
in this Agreement or in any evidence of or document relating to the
Obligations;
Inability to Perform. Debtor, or a surety for any of the Obligations ceases
to exist, becomes insolvent or the subject of bankruptcy or insolvency
proceedings;
Misrepresentation. Any representation made to induce Lender to extend
credit to Debtor, under this Agreement or otherwise, is false in any
material respect when made
all of the Obligations shall, at the option of Lender and without any notice or
demand, become immediately payable; and Lender shall have all rights and
remedies for default provided by the Wisconsin Uniform Commercial Code, as well
as any other applicable law and any evidence of or document relating to any
Obligation. With respect to such rights and remedies
(a) Repossession. Lender may take possession of Collateral without notice
or hearing, which Debtor waives.
(b) Assembling Collateral. Lender may require Debtor to assemble the
Collateral and to make it available to Lender at any convenient place designate
by Lender.
(c) Notice of disposition. Written notice, when required by law, sent to
any address of Debtor in this Agreement at least 10 calendar days (counting the
day of sending) before the date of a proposed disposition of the Collateral is
reasonable notice.
(d) Expenses and application of proceeds. Debtor shall reimburse Lender for
any expense incurred by Lender in protecting or enforcing its rights under this
Agreement before and after judgment, including, without limitation, reasonable
attorneys' fees and legal expenses and all expenses of taking possession,
holding, preparing for disposition and disposing of the Collateral. After
deduction of such expenses Lender may apply the proceeds of disposition to the
Obligations in such order and amounts as it elects; provided, that once the
Obligations have been satisfied in full, any excess procceds shall be paid over
to Foothill Capital Corporation.
(e) Waiver. Lender may permit Debtor to remedy any default without waiving
the default so remedied, and Lender may waive any default without waving any
other subsequent or prior default by Debtor.
10. INTERPRETATION
The validity, construction and enforcement of this Agreement are governed
by the internal laws of Wisconsin. All terms not otherwise defined have the
meanings assigned to them by the Wisconsin Uniform Commercial Code. Invalidity
of any provision of this Agreement shall not affect the validity of any other
provision. This Agreement is intended by the Debtor and Lender as a final
expression of this Agreement and as a complete and exclusive statement of its
terms, there being no conditions to the enforceability of this Agreement. This
Agreement may not be supplemented or modified except in writing.
[LETTERHEAD OF XXXX X. XXX, INC.]
SERVICE RATES - EFFECTIVE JUNE 1, 2001
TECHNICIAN:
Monday - Saturday US$800/day (minimum) plus living and travel expenses.
US$100/hr. in excess of 8 hrs./day.
Sundays & Holidays US$1000/day (minimum) plus living and travel expenses.
US$125/hr. in excess of 8 hrs./day.
ENGINEER:
Monday - Saturday US$1000/day (minimum) plus living and travel expenses.
US$125/hr. in excess of 8 hrs./day.
Sundays & Holidays US$1200/day (minimum) plus living and travel expenses.
US$150/hr. in excess of 8 hrs./day.
TRAVEL TIME (MINIMUM DAILY CHARGE APPLIES - SEE NOTE 2):
Monday - Friday US$80/hr.
Saturday, Sunday & Holidays US$100/hr.
WEEKENDS: US$150/day plus living expenses for Saturday and Sunday
NOTES: with no work.
1. Travel time and working time occurring on the same day will be
combined to meet the minimum daily charge.
2. Minimum daily charge does not apply to travel time occurring on
Saturday, Sunday, Holidays, or any day when the technician or engineer
has worked eight (8) hours in the JOA factory. In this case, only
travel time will be billed.
3. Weekends and holidays are according to the U.S.A. and Joa calendars,
unless otherwise agreed at the time service is requested.
4. Rates are subject to change and must be confirmed when the service is
requested.
5. Overseas air travel is booked in Business Class. All other flights are
booked in Coach Class, subject to availability.
6. Travel time is determined from the time leaving home, the job site or
hotel and arriving at destination.
7. On extended visits, the technician or engineer is authorized to return
home for a weekend every two (2) weeks within the continental U.S. and
Canada or every four (4) weeks when working in any other location. All
travel time and expenses are to Buyer's account.
XXXX X. XXX, INC.
/s/ Xxxxxx X. Xxxxxxx
-------------------------
11/14/02
WAIVER AND CONSENT
This WAIVER AND CONSENT (this "Waiver") is made and entered into as of
March 28, 2003, between ASSOCIATED HYGIENIC PRODUCTS LLC, a Delaware limited
liability company (the "Borrower"), and FOOTHILL CAPITAL CORPORATION, in its
capacity as administrative agent (the "Agent") for the Lenders (as defined
below).
WITNESSETH:
WHEREAS, the Borrower, the Lenders and the Agent have entered into that
certain Amended and Restated Loan and Security Agreement dated as of March 14,
2001, as amended by that certain First Amendment to Loan Agreement effective as
of May 28, 2001, that certain Second Amendment to Loan Agreement effective as of
July 5, 2001, that certain Third Amendment and Waiver to Loan Agreement dated as
of September 10, 2001, that certain Fourth Amendment to Loan Agreement dated as
of December 19, 2001, that certain Fifth Amendment to Loan Agreement dated as of
April 17, 2002, and that certain Sixth Amendment to Loan Agreement dated as of
November 14, 2002 (as amended and as the same may hereafter be modified,
amended, restated or supplemented from time to time, the "Loan Agreement"),
pursuant to which the Lenders have agreed to make loans and other financial
accommodations to the Borrower from time to time; and
WHEREAS, the Borrower is required to deliver audited financial statements
for the Borrower and its Subsidiaries for each fiscal year no later than 90 days
after the end of each of its fiscal years pursuant to Section 6.3(b)(i) of the
Loan Agreement; and
WHEREAS, the Borrower has informed the Agent that it will be unable to
deliver such financial statements for the fiscal year ending December 31, 2002,
within 90 days of such fiscal year end; and
WHEREAS, the Borrower has requested that the Agent and the Lenders waive
the provisions of Section 6.3(b)(i) of the Loan Agreement with respect to such
financial statements and consent to an extension of the 90 day period to April
30, 2003; and
WHEREAS, the Agent and the Lenders have agreed to the requested waiver and
consent on the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree that all capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in the Loan
Agreement and further agree as follows:
1. Waiver and Consent. The Agent and the Lenders hereby waive the
provisions of Section 6.3(b)(i) of the Loan Agreement to the extent necessary to
permit the Borrower to deliver audited financial statements for the Borrower and
its Subsidiaries for the fiscal year ending December 31, 2002, no later than
April 30, 2003.
2. Representations and Warranties. The Borrower hereby represents and
warrants, for the benefit of the Agent and the Lenders, as follows:
(a) The Borrower is a limited liability company organized, validly
existing and in good standing under the laws of the jurisdiction indicated at
the beginning of this Waiver and all other jurisdictions in which the failure to
be so qualified reasonably could be expected to constitute a Material Adverse
Change;
(b) The execution, delivery, and performance by the Borrower of this
Waiver and the Loan Documents to which it is a party are within the Borrower's
limited liability company powers, have been duly authorized by all necessary
limited liability company action and do not and will not (i) violate any
provision of federal, state, or local law or regulation applicable to the
Borrower, the Governing Documents of the Borrower, or any order, judgment, or
decree of any court or other Governmental Authority binding on the Borrower,
(ii) conflict with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under any material contractual obligation of
the Borrower, (iii) result in or require the creation or imposition of any Lien
of any nature whatsoever upon any properties or assets of the Borrower, other
than Permitted Liens, or (iv) require any approval of the Borrower's members or
any approval or consent of any Person under any material contractual obligation
of the Borrower;
(c) The execution, delivery and performance by the Borrower of this
Waiver and the Loan Documents to which it is a party do not and will not require
any registration with, consent or approval of, notice to, or other action with
or by, any Governmental Authority or other Person;
(d) This Waiver and each other Loan Document to which the Borrower is
a party, and all other documents contemplated hereby and thereby, when executed
and delivered by the Borrower, will be the legally valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance with their
respective terms, except as enforcement may be limited by equitable principles
or by bankruptcy, insolvency, reorganization, moratorium, or similar laws
relating to or limiting creditors' rights generally; and
(e) After giving effect to this Waiver, no Default or Event of Default
is existing.
3. No Other Waiver or Modification. Except for the waiver and consent set
forth herein, the text of the Loan Agreement and the Loan Documents shall remain
in full force and effect. The Borrower acknowledges and expressly agrees that
the Agent and the Lenders reserve the right to, and do in fact, require strict
compliance with all terms and provisions of the Loan Agreement and the other
Loan Documents.
4. Counterparts. This Waiver may be executed in multiple counterparts, each
of which shall be deemed to be an original and all of which, taken together,
shall constitute one and the same agreement. In proving this Waiver in any
judicial proceedings, it shall not be necessary to produce or account for more
than one such counterpart signed by the party against whom such enforcement is
sought. Any
2
signatures delivered by a party by facsimile transmission shall be deemed an
original signature hereto.
5. Loan Document. This Waiver shall be deemed to be a Loan Document for all
purposes.
6. Costs and Expenses. The Borrower agrees to pay on demand all reasonable
costs and expenses in connection with the preparation, execution, and delivery
of this Waiver and the other instruments and documents to be delivered
hereunder, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities hereunder and
thereunder.
7. Governing Law. This Waiver shall be deemed to be made pursuant to the
laws of the State of Georgia with respect to agreements made and to be performed
wholly in the State of Georgia, and shall be construed, interpreted, performed
and enforced in accordance therewith.
8. Effectiveness. This Waiver shall be effective as of the date first
written above upon the Agent's receipt of (i) a counterpart hereof duly executed
by the Borrower and the Lenders, and (ii) such other documents executed by the
Borrower and Hygienic as the Agent may reasonably require.
[Remainder of this page intentionally left blank]
3
IN WITNESS WHEREOF, the parties hereto have executed this Waiver or caused
it to be executed by their duly authorized officers, effective as of the day and
year first written above.
BORROWER: ASSOCIATED HYGIENIC PRODUCTS LLC
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President Accounting
& Finance
AGENT AND LENDER: FOOTHILL CAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Name: XXXXXX X. XXXXXX
Title: Vice President
