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EXHIBIT 10.22
FIFTH FORBEARANCE AGREEMENT
This Fifth Forbearance Agreement ("Agreement") shall be deemed
effective as of March 31, 1999. The parties to this Agreement are U.S. Bank
National Association ("Bank"), Geographics, Inc. ("Borrower"), and Geographics
Marketing Canada ("Guarantor").
THIS AGREEMENT IS MADE WITH RESPECT TO THE FOLLOWING RECITALS. THE
TRUTH, ACCURACY AND COMPLETENESS OF EACH OF THE RECITED FACTS IS
EXPRESSLY ACKNOWLEDGED BY THE PARTIES, AND THIS ACKNOWLEDGEMENT IS
INTENDED TO BE CONTRACTUALLY BINDING UPON THE PARTIES.
A. Geographics is currently indebted to Bank under a promissory note dated
August 30, 1996, and a related business loan agreement pursuant to which Bank
provided Geographics a Revolving Line of Credit in the maximum amount of
$12,000,000 (the "Revolving Loan"). In addition to the Revolving Loan,
Geographics is indebted to Bank for various real estate and equipment loans
(the "Term Loans"). The amounts owed on the Revolving Loan and the Term
Loans as of May 18, 1999 (calculated without accounting for the interest rate
adjustment and Banker's Acceptance fees provided below, and not including
attorney's fees and costs) are set forth on attached Exhibit A to this
Agreement. Bank has continued to accept payments on the Term Loans, including
a matured real estate loan (No. 9289934), pending execution of this Fifth
Forbearance Agreement. Further, interest, fees and other charges continue to
accrue on the Revolving Loan and the Term Loans. Geographics' entire
indebtedness to Bank shall be referred to herein as the "Indebtedness."
B. The Indebtedness is secured by security interests in substantially all of
Geographics' assets, including but not limited to accounts, inventory,
equipment, and general intangibles.
C. Guarantor has guaranteed all of Geographics' Indebtedness to Bank, which
guaranty remains outstanding.
D. The Revolving Loan and the Term Loans are in default, and Bank has declared
all of the Indebtedness, including principal and accrued but unpaid interest,
to be immediately due and payable. Geographics and Guarantor hereby
acknowledge that the Loans are in default, that the Indebtedness is currently
due and owing, and that there are no defenses or offsets that exist to the
repayment of said Indebtedness.
E. Bank and Geographics entered into prior Forbearance Agreements, under which
Bank agreed to forbear from the exercise of its rights and remedies as a
result of the defaults described above. The most recent such agreement (the
"Fourth Forbearance Agreement") expired on March 31, 1999.
FIFTH FORBEARANCE AGREEMENT - PAGE 1
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F. Borrower and Guarantor have requested that Bank further forbear for a
period of time from the exercise of its rights and remedies as a result of
the events of default described above. Bank is willing to forbear for a
limited time only, as set forth in greater detail hereinbelow.
G. Geographics currently operates a "Specialty Paper Business," which is
engaged in the development, manufacture, marketing and distribution of
designer stationery, business cards, brochures, letterhead, memo pads and
paper cubes. Prior to May 1998, Geographics was also engaged in the
business of developing, manufacturing, marketing, supporting and
distributing various rub-on and stick-on lettering, stencils, graphic arts
products, non-electric and electric signs and other signage products (the
"Core Business"). For over a year, Geographics had been attempting to sell
the Core Business. After considering all offers, Geographics agreed in
December 1997 to sell the assets associated with the Core Business to
Identity Group, Inc. ("Identity"). The parties reached agreement on price
and terms. However, Geographics determined it would be unable to satisfy
all of the conditions in the offer by the closing deadline.
H. At the time the parties entered into the Second Forbearance Agreement, it
was expected that Geographics would close the sale to Identity prior to
expiration of the second forbearance period on April 15, 1998. At that
time Geographics had been in default for almost a year. To avoid losing
the sale to Identity, Bank had demanded, and obtained Geographics'
cooperation in allowing Bank to foreclose on the Core Business assets
through private sale to Identity pursuant to RCW 62A.9-504. That sale
consummated by the parties on or around May 4, 1998. At that time Identity
paid to Bank the sum of $6,620,000, which amount was used, after payment
of certain costs incurred in connection with the sale of the Core Business
assets, to pay down the Indebtedness and to reduce permanently the maximum
amount of the Revolving Loan to $6,000,000. In addition, on or around
October 23, 1998, Bank received $449,187.47 from an escrow established in
connection with the sale of the Core Business to Identity.
I. Geographics desires to continue, and is continuing, the Specialty Paper
Business. At a special meeting of Geographics' shareholders on April 16,
1999, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and C. Xxxxxx Xxxxxxxx were
elected as Geographics' sole directors. The directors appointed Xxxxx X.
Xxxxxx as Chairman of the Board and Chief Executive Officer. The Board has
carefully studied Geographics' financial condition and has determined
Geographics' short-term borrowing needs. As a result, Geographics has
requested a further forbearance by Bank of its rights with respect to the
Indebtedness, along with a change in the maturity date for, and a
modification of the borrowing base calculation relating to, the
Indebtedness, all as further set forth below. Geographics believes this
will give it a chance to refinance its obligations to Bank, to convince
Bank to extend further financing accommodations, or to otherwise satisfy
its obligations to Bank.
NOW THEREFORE IT IS HEREBY AGREED:
1. Acknowledgment of Default. On and as of the date hereof:
(i) material events of default existed and continue to exist under the Revolving
Loan and the Term Loans, including, without limitation, those events of default
identified in the Recitals to this Forbearance Agreement; (ii) timely, adequate
and proper notice of the occurrence of such Existing Defaults
FIFTH FORBEARANCE AGREEMENT - Page 2
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(collectively, "the Existing Defaults") has been received by the Borrower and
Guarantor from Bank (and Borrower and Guarantor waive any requirement that any
such notice be in writing); (iii) all grace periods, if any, applicable to the
cure of defaults after receipt of such notices have expired; (iv) each of the
Existing Defaults was and is continuing without timely cure by Borrower; and (v)
Bank had not and has not waived, in any respect, any or all the Existing
Defaults or its respective rights and remedies with respect thereto.
2. Acknowledgment of Bank's Right to Accelerate. On and as of the date
hereof, Bank has accelerated and declared the Indebtedness evidenced by the
Revolving Loan and Term Loans to be immediately due and payable and has made
demand upon Borrower and Guarantor for the full payment of all such
Indebtedness. Such acceleration and demand for payment is in all respects
adequate and proper. Borrower and Guarantor waive any and all further notice,
presentment, and notice of dishonor or demand with respect to such Indebtedness.
3. Acknowledgment of Indebtedness. On and as of the date hereof,
Borrower is indebted to Bank in the amounts set forth in the Recitals to this
Forbearance Agreement. All such amounts remain outstanding and unpaid. All such
amounts are due and payable in full, without offset, deduction or counterclaim
of any kind or character whatsoever, but are subject to increase or other
adjustment as a result of any and all interest, fees, and other charges,
including without limitation, attorneys fees and costs of collection, which are
payable to Bank under the Revolving Loan and Term Loan documents.
4. Forbearance. On the terms and conditions as set forth in this
Forbearance Agreement, Bank shall forbear from taking any action to enforce its
rights under the Revolving Loan and Term Loans, arising from the Existing
Defaults, through June 30, 1999 ("Forbearance Period").
5. Conditions of Forbearance. The Forbearance Period shall terminate
upon the earliest occurring of any of the following:
(a) The end of the Forbearance Period;
(b) Any default by the Borrower or the Guarantor under this
Forbearance Agreement; or
(c) Any default by the Borrower or the Guarantor under the Term Loans
or the Revolving Loan (as modified hereby) after the date of this
Agreement.
6. Forbearance on Default Interest. Bank further will waive collection
and forgive payment of any default interest now accrued and/or owing under the
Revolving Loan if there is no default under this Agreement.
7. Extension of Revolving Loan. During the Forbearance Period, the
Revolving Loan shall continue under its current terms and conditions with the
following modifications:
(a) All Indebtedness thereunder shall be due and payable without
demand on the earlier of the end of the Forbearance Period or June 30,
1999.
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(b) Bank will issue Bankers Acceptances in accordance with Bank's
standard procedures and policies, and provided that Borrower is in
compliance with the terms and conditions of this Agreement (including,
without limitation, the aggregate borrowing limitations set forth in this
Paragraph 7). Borrower shall pay to Bank a monthly fee, equal to three
percent (3%) per annum of the amounts of all Bankers Acceptances that are
outstanding during the prior month.
(c) The maximum amount of the Revolving Loan, including any and all
outstanding Bankers Acceptances, shall not exceed $5,500,000. At all times
during the Forbearance Period, the maximum outstanding amount of the
Revolving Loan, including any and all outstanding Bankers Acceptances, (i)
shall not exceed the maximum amount allowable pursuant to applicable
borrowing formulae set forth in the business loan agreement and the
"Operating Provisions Accounts Receivable and Inventory Secured Lines"
attached hereto as Exhibit B (the "Operating Provisions"), plus $750,000,
and (ii) as advanced against eligible inventory, shall not in any event
exceed the amount of $3,500,000.
(d) The interest rate to be applied to the unpaid principal balance
under the Revolving Loan shall be 1.500 percentage points over the rate of
interest which Bank from time to time establishes as its prime rate.
(c) The following person(s) are authorized to request advances under
the Revolving Loan until Bank receives from Geographics written notice of
revocation of his authority: Xxxxx X. Xxxxxx, Chairman of the Board and
C.E.O., only.
(f) The parties acknowledge that the following fees to Bank are
unpaid and outstanding as of the date of this Agreement and shall be paid
by Geographics promptly on execution of this Agreement:
(i) Loan fee: $13,750.00;
(ii) Attorneys' fees: $54,036.09; and
(iii) Collateral examination fees: $4,255.50.
In addition to the above, Geographics agrees to pay all legal fees and
expenses of Bank in connection with the preparation and negotiation of this
Agreement.
(g) All other provisions and limitations in the Operating Provisions
shall apply.
(h) Notwithstanding any prior course of dealing between the parties,
Bank shall not make or permit any overadvances under the Revolving Loan
beyond the maximum amounts available under the terms of this Fifth
Forbearance Agreement.
8. It is expressly understood and agreed that upon the maturity of the
Indebtedness on June 30, 1999, or earlier acceleration of the Indebtedness as
provided for herein, all such Indebtedness shall be immediately payable in
full, AND BANK SHALL HAVE NO
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FURTHER OBLIGATIONS OR COMMITMENTS TO BORROWER TO EXTEND, RENEW OR REFINANCE ANY
OF SUCH INDEBTEDNESS, REGARDLESS OF ANY RENEWALS, EXTENSIONS OR FLEXIBILITY
WHICH BANK MAY IN GOOD FAITH AND FAIR DEALING HAVE PREVIOUSLY ALLOWED IN
CONNECTION WITH SUCH INDEBTEDNESS.
9. Acknowledgment that Agreements Continue in Full Force and Effect. The
Revolving Loan and Term Loans, and all notes, security agreements, trust deeds
and other agreements related thereto, shall, except as expressly modified herein
during the forbearance period, remain in full force and effect, and shall not be
released, impaired, diminished, or in any other way modified or amended as a
result of the execution and delivery of this forbearance agreement.
10. Grant of Cross Security. All of the security agreements, deeds of
trust, and other security instruments and collateral which secure the Revolving
Loan, Term Loans and guarantees shall continue to remain in full force and
effect and each shall secure repayment of all Indebtedness and obligations owed
by Borrower and Guarantor, respectively to Bank, including those obligations
arising under this Forbearance Agreement.
11. Further Cooperation. Borrower and Guarantor agree to cooperate fully
and to take all further actions and to execute all further instruments that Bank
deems necessary or appropriate to carry out the purposes of this Agreement,
including, without limitation, corporate resolutions of Borrower authorizing the
transactions contemplated by this Agreement, similar in substance to those
resolutions attached hereto as Exhibit C.
12. Cross Default. Any failure by Borrower to observe and perform any of
the covenants or agreements contained herein or in any other agreement between
the Borrower and Bank will constitute an event of default under this Agreement
and each other agreement between Borrower and Bank. Upon the happening of any
event of default, Bank shall have the right to demand immediate payment of any
and all Indebtedness owing to it by the Borrower and the Guarantor and to
exercise any or all of its rights under the law and pursuant to the terms of
this Agreement and all of the other agreements in effect between the parties.
13. No Waiver. Any waiver by Bank of a default in any of the terms and
conditions of this Agreement or in any other agreement referred to herein shall
not be deemed a waiver of any subsequent or other default or of any of Bank's
rights as a result of breaches or defaults by the Borrower.
14. Status of Prior Agreements. Except as modified or supplemented hereby
and except as inconsistent herewith, all unexpired prior agreements entered into
between the parties hereto remain in full force and effect pursuant to their
original terms and said agreements are hereby ratified and confirmed.
15. Amendments in Writing. Each and every word and portion of this
Agreement is contractual and not merely a recital. This Agreement may not be
amended or supplemented, canceled or discharged and no provision hereof may be
waived, except by subsequent written agreement between the parties.
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16. No Oral Waivers or Modifications. Borrower acknowledges that, in
general, borrowers who experience difficulties honoring loan obligations, in an
effort to inhibit or impede lenders from exercising the rights and remedies
available pursuant to mortgages, notes, loan agreements or other instruments
evidencing or affecting loan transactions, frequently allege or argue that some
loan officer or administrator of a lender made an oral modification or made
some statement which could be interpreted as a consent, waiver, extension,
modification or amendment of one or more debt instruments or could be
interpreted as an agreement to take or forbear from taking some action and that
the borrower relied to its detriment upon such consent, waiver, oral
modification or statement. For that reason, and in order to protect Bank from
such allegations and arguments in connection with the transactions contemplated
by this Agreement, it is agreed and acknowledged that all instruments referred
to herein or executed or delivered in connection herewith can be extended,
modified or amended, and a consent or waiver can be given and an agreement can
be altered or entered into, only in writing. None of the rights, powers,
remedies or benefits of Bank can be released, waived, extended, modified or
amended and no consent can be given or any agreement altered or entered into
except in writing signed by an agent of Bank. Borrower further acknowledges its
understanding that no officer or employee of Bank has the power or authority to
make an oral consent or an oral release, extension, modification or amendment
in respect to this Agreement or of any of the documents referred to herein or
executed or delivered in connection herewith or to make any oral waiver or to
alter or enter into any oral agreement on behalf of Bank.
17. Complete Agreement. This writing is intended by the parties as a
final and complete expression of the parties' agreement and of all matters
relating to this Agreement. No prior course of dealing or negotiations between
the parties, and no oral or extrinsic evidence of any nature shall be used to
supplement or modify any term of this Agreement.
18. Attorney Fees. In the event any suit or action is instituted to
enforce or interpret any of the terms of this Agreement, including any action
or participation in or in connection with a case or proceeding under any
Chapter of Bankruptcy Code or any successor statute, the prevailing party shall
be entitled to such sum as the court may adjudge reasonable as attorney fees
and costs in such suit, action or proceeding, or upon any appeal from any
judgment, order or decree entered therein, and whether or not such fees and
costs are prescribed by statute. Whether or not any court action is involved,
Borrower agrees to pay all reasonable attorney fees and costs incurred by Bank
that are necessary at any time in Bank's opinion for the protection of its
interests or enforcement of its rights hereunder.
19. Remedies cumulative. Each and every right, remedy and power hereby
granted to Bank or allowed it by law or other agreement, shall be cumulative
and shall not be exclusive of any other rights, remedy and power and may be
exercised concurrently, consecutively or separately by Bank. No failure nor
neglect on the part of Bank to exercise and no delay in exercising any right,
remedy or power hereunder, under any other agreement, any other document, or by
law, shall in any way release or reduce Borrower's liability to Bank hereunder,
or in any way reduce, condition or limit Borrowers obligations hereunder.
20. No Partnership. The Bank and Borrower intend that their relationship
shall be solely that of creditor and debtor. Nothing contained herein or in any
document referred to herein or executed or delivered in connection herewith
shall be deemed or construed to create a
FIFTH FORBEARANCE AGREEMENT--Page 6
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partnership, tenancy-in-common, joint tenancy, joint venture or co-ownership by
or between Bank and Borrower. The Bank shall not be in any way responsible or
liable for the debts, losses, obligations or duties of Borrower with respect to
its business or otherwise. All obligations to pay real property or other taxes,
assessments, insurance premiums, and all other fees and charges arising from
the ownership, operation, or occupancy of the business and property of
Borrower, and to perform all other agreements and contracts relating thereto,
shall be the sole responsibility of Borrower consistent with the terms and
provisions of this Agreement and the documents referred to above, Borrower
shall be free to determine and follow its own policies and practices in the
conduct of its respective business.
21. Discussions with Others. Borrowers, Guarantor and Bank acknowledge
and agree that the parties may, in the sole discretion of Bank, discuss various
means for repayment of the Indebtedness owing to Bank, and that Borrower may
enter into discussions and negotiations with prospective fourth-party lenders to
Borrower, fourth-party creditors of Borrower, or potential investors in Borrower
or other fourth persons. If Borrower asks Bank to enter into or participate in
any such discussions or negotiations, Borrower agrees that Bank may, in the
course of such discussions, reveal information about the Borrower that would
normally be considered confidential between Bank and the Borrower. Borrower
agrees that, if such discussions do take place, they shall in no way obligate or
commit Bank to agree to any secured or unsecured financing, to subordinate any
lien or to release any collateral, to lend any additional funds to Borrower, to
extend any other form of credit to Borrower, to forbear from exercising any
rights, powers and remedies of Bank, or to provide any letters of credit or
other credit support on behalf of Borrower. Borrower waives, releases and
discharges any right it may have to assert any claim or contention that Bank has
made any oral or written offer, promise, or commitment to cooperate with any
fourth-party lender to Borrower or fourth-party creditor of Borrower, or any
other fourth person, to agree to any secured or unsecured financing or to
otherwise subordinate any lien or to release any collateral, to lend any
additional funds to Borrower or provide any other form of credit to Borrower, to
forbear from exercising any rights, powers and remedies of Bank, to provide any
letters of credit or other credit support on behalf of Borrower, or to take (or
refrain from taking) any other action whatsoever with respect to Borrower,
except as provided in this Agreement.
22. Advice of Counsel, etc. The parties declare that they have been
advised by counsel in connection with the execution of this Agreement and
acknowledge that they are not relying on any representations or advice of Bank
or its lawyers, that they are not acting under any misrepresentation or
misapprehension as to this Agreement's legal effect, and that this Agreement has
not been executed under duress.
23. Construction. It is understood that the rule of construction that a
written agreement is construed against the party preparing or drafting such
agreement shall specifically not be applicable to the interpretation of this
Agreement.
24. Successors. All the covenants, agreements, conditions and terms
contained in this Agreement shall be binding upon, apply, and inure to the
benefit of the successors and assigns of the respective parties hereto.
FIFTH FORBEARANCE AGREEMENT - Page 7
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25. GOVERNING LAW; JURISDICTION. The laws of the State of Washington
shall govern the rights, liabilities, duties and responsibilities of the
parties. At Bank's request, and subject to the provisions on Mandatory
Arbitration below, if there is a lawsuit, Borrower under/or Guarantor shall
submit themselves to the exclusive jurisdiction of the courts of King County,
State of Washington.
26. MANDATORY ARBITRATION. Lender and Borrower agree that all disputes,
claims and controversies between them, whether individual, joint, or class in
nature, arising from this Agreement or otherwise, including without limitation
contract and ?? disputes, shall be arbitrated pursuant to the Rules of the
American Arbitration Association, upon request of either party. No act to take
or dispose of any Collateral shall constitute a waiver of this arbitration
agreement or be prohibited by this arbitration agreement. This includes,
without limitation, obtaining injunctive relief or a temporary restraining
order, invoking a power of sale under any deed of trust or mortgage; obtaining
a writ of attachment or imposition of a receiver; or exercising any rights
relating to personal property, including taking or disposing of such property
with or without judicial process pursuant to Article 9 of the Uniform
Commercial Code. Any exercise of any right, concerning any Collateral,
including any claim to rescind, reform, or otherwise modify any agreement
relating to the Collateral, shall also be arbitrated, provided however that no
arbitrator shall have the right or the power to enjoin or restrain any act of
any party. Judgment upon any award rendered by any arbitrator may be entered in
any court having jurisdiction. Nothing in this Agreement shall preclude any
party from seeking equitable relief from a court of competent jurisdiction. The
statute of limitations, estoppel, waiver, laches, and similar doctrines which
would otherwise be applicable in an action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an
arbitration proceeding shall be deemed the commencement of an action for these
purposes. The Federal Arbitration Act shall apply to the construction,
interpretation, and enforcement of this arbitration provision.
27. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument.
Any counterpart that may be delivered by facsimile transmission shall be deemed
the equivalent of an originally signed counterpart and shall be fully
admissible in any enforcement proceeding regarding this Agreement.
28. RELEASE. As additional consideration to Bank for entering into this
Agreement, Borrower and Guarantor hereby release and forever discharge Bank,
its officers, directors, employees, agents, successors and assigns, from any
and all liability, or claims of liability, whether known or unknown, of
whatsoever nature arising out of or based in whole or in part upon any
agreement, act, or omission of Bank, or of any person or entity acting, or
purporting to act on behalf of Bank, occurring prior to the effective date of
this Agreement.
29. TIME. Time is of the essence under this Forbearance Agreement.
30. BORROWER'S REPRESENTATIONS AND WARRANTIES. Borrower represents and
warrants to Bank as of the date of this Agreement.
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(a) Organization. Borrower is a corporation which is duly organized,
validly existing, and in good standing under the laws of the State of
Washington. Borrower has the full power and authority to own its
properties and to transact the businesses in which it is presently engaged
or presently proposes to engage. Borrower also is duly qualified as a
foreign corporation and is in good standing in all states in which the
failure to so qualify would have a material adverse effect on its
businesses or financial condition.
(b) Authorization. The execution, and performance of this Agreement
and all related documents by Borrower, to the extent to be executed,
delivered or performed by Borrower, have been duly authorized by all
necessary action by Borrower; do not require consent or approval of any
other person, regulatory authority or governmental body; and do not
conflict with, result in a violation of, or constitute a default under (a)
any provision of its articles of incorporation or organization, or bylaws,
or any agreement or other instrument biding upon Borrower or (b) any law,
governmental regulation, court decree, or order applicable to Borrower.
(c) Legal Effect. This Agreement constitutes, and any instrument or
agreement required hereunder to be given by Borrower when delivered will
constitute, legal, valid and binding obligations of Borrower enforceable
against Borrower in accordance with their respective terms.
(d) Survival of Representations, Releases and Warranties. Borrower
understands and agrees that Bank is relying upon the above
representations, releases and warranties in entering into this Forbearance
Agreement. Borrower further agrees that the foregoing representations,
releases and warranties shall be continuing in nature and shall remain in
full force and effect until such time as Borrower's obligations to Bank
shall be paid in full.
31. No Representations or Warranties by Lender. Except as expressly set
forth herein, Bank makes no representations, warranties, promises, or
communications to loan money, extend credit, or forbear from enforcing
repayment in connection with any of the documents or transactions contemplated
hereunder. Borrower and the Guarantor acknowledge that they have received the
following notice.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND
CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
BORROWER AND GUARANTOR ACKNOWLEDGE RECEIPT OF A COPY OF THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties executed this FIFTH FORBEARANCE AGREEMENT
as of the date first written above.
GEOGRAPHICS, INC. GEOGRAPHICS MARKETING CANADA
By: /s/ XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXX
---------------------------------- ----------------------------------
Xxxxx X. Xxxxxx
Chairman of the Board/CEO Its: President
---------------------------------
U.S. NATIONAL BANK,
NATIONAL ASSOCIATION
By: /s/ XXXXX XXXXXXX
---------------------------------
Xxxxx Xxxxxxx
Vice President
FIFTH FORBEARANCE AGREEMENT -- Page 10
