EXHIBIT 10-c
Xxxxx Fargo Equipment Finance, Inc. Interim Funding Agreement
000 Xxxxxxxxx Xxxxxx, Xxxxx 000
XXX X0000-000
Xxxxxxxxxxx, XX 00000
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This agreement is dated as of July 25, 2003 by and between Xxxxx Fargo Equipment
Finance, Inc.("Creditor") and the undersigned lessee or purchaser or borrower
from Creditor, as the case may be (the "Customer").
WHEREAS Creditor has agreed to finance certain equipment for the Customer by way
of lease, installment date contract or promissory note (the "Contract", such
equipment being described as follows (the "Equipment"):
See Schedule A
WHEREAS the vendor or vendors of the Equipment require progress payments to be
made.
NOW THEREFORE the parties hereby agree as follows:
1. Creditor agrees to make progress payments to the vendor or vendors
of the Equipment subject to the terms of this Agreement.
2. The aggregate amount advanced by Creditor hereunder shall not exceed
$1,575,000.00, and Creditor shall not advance and progress payment
hereunder without the prior written authorization of the Customer.
3. Creditor shall not advance any progress payment hereunder until it
shall have first received the following: (a) the Contract duly
signed by the Customer and all other related documentation that can
be delivered prior to the Customer's acceptance of the Equipment,
and (b) all advance payments and security deposits required by the
Contract.
4. The term "Cutoff Date" as used in this Agreement means the earliest
to occur of the following dates: (a) 12/31/03, (b) the date there
occurs an Event of Default as defined in the Contract
(notwithstanding that the Equipment has not then been delivered and
accepted); or (c) the date there occurs a material adverse change in
the financial condition, business, or prospects of the Customer from
that considered by Creditor in making its decision to finance the
Equipment.
5. If on the Cutoff Date the Equipment has not been delivered to and
accepted by the Customer under the Contract as evidenced by a
delivery and acceptance certificate executed by the Customer in form
and substance satisfactory to Creditor, then upon demand at any time
after the Cutoff Date the Customer shall pay Creditor the total
amount advanced hereunder and remaining unpaid on the Cutoff Date
together with accrued but unpaid interest thereon determined as
provided below, and Creditor shall no longer be obligated to make
advances hereunder. Upon such payment, Creditor shall transfer all
of its rights, title, and interest in the Equipment and in progress
payments advanced hereunder to the Customer without recourse or any
warranty whatsoever. In order to protect its ability to acquire use
of the Equipment, the Customer may, if Creditor has not demanded
payment with 10 business days after the specific date set forth in
clause (a) of the definition of Cutoff Date, pay Creditor within
such period the amount that would have even due had such a demand
been made, but if no such payment is made within such period, the
Customer shall have no right to acquire use of the Equipment under
the Contract, and Creditor may, at its option, by written notice to
the Customer, declare the Contract and all of Creditor's obligations
thereunder terminated and acquire the Equipment for its own account
or make any other arrangement with the vendor it can negotiate or
demand payment from the Customer as provided above.
6. Whether or not the Equipment is accepted by the Customer under the
Contract, the Customer agrees to pay Creditor interest on the unpaid
balance of the amount advanced hereunder for the date of the initial
advance until the advances are fully paid at an annual rate
(computed on the basis of actual days elapsed in a 360-day year)
equal to the following: 1% above the rate of interest publicly
announced by Xxxxx Fargo Bank Minnesota, National Association from
time to time as its base rate, each change in the interest rate
hereon to become effective.
7. Interest shall be payable monthly beginning with the 10th day of the
month following the month in which the first advance is made and on
the same day of each month thereafter and also on the maturity date.
The maturity date of this obligation is the earliest of (a) the date
Creditor demands payment pursuant to paragraph 5, (b) the date the
Equipment is accepted by the Customer under the Contract, or (c) the
date the Customer prepays as permitted by paragraph 5.
8. Some items of Equipment may be delivered by the vendor to the
Customer without the Customer having accepted the items under the
Contract. The Customer agrees to maintain insurance of each item of
Equipment as required by the Contract from the date it is delivered
to the Customer regardless of whether the Customer has accepted the
item under the Contract.
9. Although the Customer has agreed to reimburse Creditor as provided
in paragraph 5 for amounts advanced by Creditor hereunder, such
amounts do not constitute loans to the Customer, and Creditor as the
party making the progress payments to the vendor or vendors reserves
for its own benefit all rights to the Equipment and to the benefits
of amounts advanced hereunder subject only to its obligations under
the Contract and under the Agreement.
10. Creditor makes no representation as to when the Equipment may be
delivered by the vendor thereof.
11. This agreement may not be assigned by the Customer without the prior
written consent of Creditor. This agreement shall be binding upon
and inure to the benefit of the successors and assigns of the
parties hereto.
12. This agreement shall be governed by the same substantive laws that
govern the Contract.
Creditor: Xxxxx Fargo Equipment Finance, Inc.
_____________________________________ See attached Annex A for Signatures
By
_____________________________________
Title
Xxxxx Fargo Equipment Finance, Inc. Annex A
Investors Building, Suite 300
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
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Annex A to Interim Funding Agreement dated as of 7/25/2003
W By signing this agreement, each of the undersigned acknowledges that they are
jointly and severally bound to perform all of the obligation of the Debtor under
the note and the term "Debtor" shall refer to each of them separately and to all
of the jointly.
In witness whereof, Debtor and Secured Party, intending to be legally bound
hereby, have duly executed this Agreement, as of the day and year first
aforesaid.
Debtor: Thermodynetics, Inc.
By:____________________________________
Title:_________________________________
Debtor: Vulcan Industries, Inc.
By:____________________________________
Title:_________________________________
