Exhibit 10.14
LETTER OF CREDIT AND REIMBURSEMENT AGREEMENT
This Agreement is made May 21, 2004 (the "Effective Date"), between
INTERNATIONAL PLASTICS AND EQUIPMENT CORP., a Pennsylvania corporation
("Borrower"), and SKY BANK, an Ohio banking institution ("Bank").
Background
Borrower desires to enter into a Lease Agreement with CRICIPECAL LLC, a
Delaware limited liability company ("Lessor") for Borrower's lease of certain
real property located in Brewton, AL (the "Brewton Lease"). In order to induce
Lessor to enter into the Brewton Lease, Borrower has requested Bank to issue a
letter of credit substantially in the form attached hereto as Exhibit A (as the
same may be further amended, modified or extended from time to time the "Letter
of Credit"). Bank is willing to issue the Letter of Credit on the terms and
conditions set forth herein.
Agreement
NOW, THEREFORE, in consideration of the premises and in order to induce
the Bank to issue the Letter of Credit, and intending to be legally bound
hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.01. Certain Definitions. In addition to other words and terms defined
elsewhere in this Agreement, the following words and terms shall have the
following meanings, respectively, unless the context otherwise clearly requires:
"Affiliate" shall mean any Person which directly or indirectly
controls, or is controlled by, or is under common control with, Borrower,
through one or more intermediaries and for each individual who is an Affiliate
within the meaning of the foregoing, or any such individual and any Person
directly or indirectly controlled by any of the foregoing. The term "control"
means the possession, directly or indirectly, or the power to direct or cause
the direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Letter of Credit and Reimbursement
Agreement as amended, modified or supplemented from time to time.
"Adjusted Prime Rate" shall mean that fluctuating rate of interest
per annum announced by Bank from time to time as its prime rate, with each
change in the Adjusted Prime Rate automatically, immediately, and without
notice, changing the rate applicable to the Loans, plus three percent (3%). The
Adjusted Prime Rate may not represent the lowest rate charged by Bank to other
borrowers at any time and from time to time.
"Bank" shall mean Sky Bank, an Ohio banking institution, with an
address of 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxxxx 00000.
"Beneficiary" shall mean CRICIPECAL LLC, a Delaware limited
liability company, or any other beneficiary of the Letter of Credit (as
permitted thereby).
"Borrower" shall mean International Plastics and Equipment Corp., a
Pennsylvania corporation.
"Brewton Lease" shall have the meaning set forth in the preamble.
"Business Day" means any day other than a Saturday or Sunday or
holiday, or other day on which banks located in New Castle, Pennsylvania are
authorized or required to close for general banking business.
"Capital Expenditure" shall mean any expenditure made or liability
incurred which is, in accordance with GAAP, treated as a capital expenditure and
not as an expense item for the year in which it was made or incurred, as the
case may be.
"Closing" shall mean the closing of the transactions provided for in
this Agreement on the Closing Date.
"Closing Date" shall mean May __, 2004 or such other date upon which
the parties may agree.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
along with rules, regulations, decisions and other official interpretations in
connection therewith.
"Collateral" shall have the meaning set forth in the Security
Agreement.
"Date of Issuance" means the date of issuance of the Letter of
Credit.
"Debt" shall mean collectively (A) all Indebtedness, whether of
principal, interest, fees, expenses or otherwise, of Borrower to Bank now
existing or hereafter incurred including, but not limited to, future Loans and
advances under the Agreement and the Loan Documents, as the same may from time
to time be amended, together with any and all extensions, renewals, refinancing
or refundings thereof, in whole or in part; (B) all other obligations for
repayment of borrowed money, whether of principal, interest, fees, expenses or
otherwise, of Borrower to Bank now existing or hereafter incurred, whether under
letters or advances of credit, lines of credit, other financing arrangements or
otherwise including, but not limited to, any obligations arising as a result of
any overdrafts, whether or not related to the Agreement, whether or not
contemplated by Bank or Borrower at the date hereof and whether direct,
indirect, matured or contingent, joint or several, or otherwise, together with
any and all extensions, renewals, refinancing or refundings thereof in whole or
in part; (C) all costs and expenses including, without limitation, to the extent
permitted by law, reasonable attorney's fees and legal expenses,
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incurred by Bank in the collection of any of the indebtedness referred to in
clauses (A) or (B) above, and amounts due and owing to Bank under the Agreement;
and (D) any advances made by Bank for the maintenance, preservation, protection
or enforcement of, realization upon, any property or assets now or hereafter
made subject to a mortgage, pledge, lien or security interest granted pursuant
hereto or pursuant to the Loan Documents or pursuant to any agreement,
instrument or note relating to any of the Debt including, without limitation,
advances for taxes, insurance, repairs and the like.
"Disbursement Date" shall mean each day on which proceeds from the
Letter of Credit are disbursed to Beneficiary.
"Drawing" means any drawing under the Letter of Credit.
"Event of Default" shall mean any of the Events of Default described
in Section 7.01.
"Effective Date" shall have the meaning assigned to such term in the
introductory paragraph hereof.
"Facility Fee" shall have the meaning assigned to such term in
Section 2.04(a) hereof.
"GAAP" shall mean generally accepted accounting principles (as such
principles may change from time to time) applied on a consistent basis (except
for changes in application in which Borrower's independent certified public
accountants concur).
"Governmental Authorities" shall mean any government or political
subdivision or any agency, department, commission, board, bureau or
instrumentality of either, or any court, tribunal, grand jury or arbitrator in
each case either foreign or domestic.
"Guaranties" shall mean those certain Guaranty Agreements issued by
(i) Xxxxxxx X. Xxxx, Xx. and Xxxxxxx X. Xxxx, (ii) Xxxxxx Xxxxxxxx, Xx. and Xxxx
Xxxx Xxxxxxxx and (iii) IPEC Holdings, Inc., in each case in favor of Bank.
"Guarantors" shall mean collectively (i) Xxxxxxx X. Xxxx, Xx. and
Xxxxxxx X. Xxxx, (ii) Xxxxxx Xxxxxxxx, Xx. and Xxxx Xxxx Xxxxxxxx and (iii) IPEC
Holdings, Inc.
"Indebtedness" shall mean (i) all obligations for borrowed money
(including, without limitation, all note payable and drafts accepted
representing loans, extensions of credit, all obligations evidenced by bonds,
debentures, notes or similar instruments, all obligations on which interest
charges are customarily paid, all obligations under conditional sale or other
title retention agreements and all obligations issued or assumed as full or
partial payment for property whether or not any such notes, drafts or
obligations are obligations for borrowed money), (ii) all obligations secured by
any mortgage, lien, pledge, charge or security interest or encumbrance existing
on property owned or acquired subject thereto, whether or not the obligations
secured thereby shall have been assumed, (iii) all obligations to repay amounts
drawn down by
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beneficiaries of letters of credit, (iv) all indebtedness and other obligations
for the payment or purchase of which Borrower has agreed contingently or
otherwise to advance or supply funds and (v) all indebtedness represented by
obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP, the amount of such indebtedness
being the capitalized amount of such obligations determined in accordance with
such GAAP.
"Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Governmental Authority.
"Letter of Credit" shall have the meaning set forth in the
Background section.
"Letter of Credit Fee" shall have the meaning set forth in Section
2.04(b) hereof.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever including, but not limited to, any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"Loan Documents" shall mean this Agreement, the Letter of Credit,
the Note, the Security Agreement, the UCC-1 financing statements with respect to
the Security Agreement and the Guaranties.
"Loans" shall mean the Drawings and any other loan or loans made by
Bank to or on behalf of Borrower under this Agreement.
"Maximum Rate" shall mean twelve percent (12%) per annum.
"Note" shall mean the Letter of Credit Note made by Borrower and
issued to Bank in the principal amount of $1,800,000.00.
"Office", when used in connection with Bank, shall mean its
designated office located at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxx Xxxxxx,
Xxxxxxxxxxxx 00000 or such other office or offices as Bank may designate from
time to time.
"Person" shall mean an individual, corporation, partnership, joint
venture, trust, or unincorporated organization, or a government or any agency or
political subdivision thereof.
"Potential Default" shall mean any event or condition which with
notice, passage of time or a determination by Bank, or any combination of the
foregoing, would constitute an Event of Default.
"Security Agreement" shall mean the security agreement, dated of
even date herewith, by and between Borrower and Bank, as amended, modified or
supplemented from time to time.
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"Stated Amount" means the maximum aggregate Stated Amount of the
Letter of Credit as provided in Section 2.01 hereof.
"UCC" shall mean the Uniform Commercial Code, as in effect on the
date of this Agreement, and as amended from time to time, of the state or states
having jurisdiction with respect to all or a portion of the collateral held
under any of the Security Documents.
"UCC-1 Financing Statements" shall mean the UCC-1 Financing
Statements filed by Borrower with respect to the Security Agreement.
1.02. Construction and Interpretation.
(a) Construction. Unless the context of this Agreement otherwise
clearly requires, references to the plural include the singular, the singular
the plural, the part the whole and "or" has the inclusive meaning represented by
the phrase "and/or". References in this Agreement to "judgments" of Bank include
good faith estimates by Bank (in the case of quantitative judgments) and good
faith beliefs by Bank (in the case of qualitative judgments).
(b) Accounting Terms. Any accounting term not specifically defined
in Section 1.01 hereof shall have the meaning ascribed thereto by GAAP.
ARTICLE II
THE LETTER OF CREDIT FACILITY
2.01. Issuance of Letter of Credit. Subject to the terms and conditions of
this Agreement, Bank agrees to issue, on the Closing Date, the Letter of Credit
in an aggregate amount of One Million Eight Hundred Thousand and 00/100 Dollars
($1,800,000.00) (the "Stated Amount"). All payments on the Letter of Credit
shall be made with Bank's funds, and no such payments shall be made with funds
furnished by Borrower. Borrower acknowledges that Bank (and any confirming bank
with respect the Letter of Credit) shall have the unfettered right, in its sole
discretion, to refuse to extend the expiration date of the Letter of Credit and
to notify the Beneficiary at any time of its intent not to renew such letter of
credit as such right is contemplated thereby.
2.02. Agreement to Repay Drawings.
(a) Drawings. If a Drawing is made under the Letter of Credit,
Borrower agrees to pay and reimburse Bank upon demand, the principal amount of
such Drawing made by Bank, with interest on the outstanding amount of such
Drawing at a rate per annum equal to the rate specified in paragraph (b) of this
Section 2.02; provided, however, that until such demand is made, interest shall
accrue on the outstanding amount of such Drawing at a rate per annum equal to
the rate specified in paragraph (b) of this Section 2.02 and be payable by
Borrower monthly. Presentment of a draft for a Drawing drawn under or purported
to be drawn under the Letter of Credit shall constitute a demand by Bank on
Borrower for payment of the amount of such
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Drawing and all interest thereon and Borrower hereby waives presentment demand,
protest, notice of dishonor of non-payment and notice of protest in connection
with any Indebtedness which is due and payable hereunder to Bank. In addition to
the amount of each Drawing, Borrower shall also pay to Bank the reasonable
expenses incurred by Bank relative to the Letter of Credit or the enforcement of
any of its rights under this Agreement, together with interest thereon at the
rate specified in paragraph (b) of this Section 2.02 from the date any such
expenses are incurred by Bank until payment in full is received by Bank.
(b) Interest on Unpaid Drawings. Each Drawing not repaid in full on
the date when made shall bear interest on the unpaid amount thereof until paid
in full at a rate per annum (computed on the basis of the actual number of days
elapsed in a year of 360 days) equal to the Adjusted Prime Rate. After an Event
of Default, such rate shall be equal to the Adjusted Prime Rate plus two percent
(2.0%).
(c) Borrower's Obligations Absolute. The obligations of Borrower
under this Agreement, including, without limitation, the obligations under this
Section 2.02, shall be absolute, unconditional and irrevocable, under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which Borrower may have or have had against Bank, including, without
limitation:
(i) any lack of validity or enforceability of the Letter of
Credit, this Agreement, the Note or any other Loan Document;
(ii) any amendment or waiver of or any consent to any
departure from all or any of the Loan Documents;
(iii) any exchange, release or nonperfection of any collateral
or any release, waiver, amendment of any guarantee;
(iv) the existence of any claim, setoff, defense or other
right which Borrower may have at any time against the Beneficiary (including any
transferee of the Letter of Credit (or any entity for whom such beneficiary or
any such transferee may be acting)), whether in connection with this Agreement,
the transactions contemplated by this Agreement or any other related
transaction;
(v) any statement or other document presented under the Letter
of Credit proving to be forged, or in any respect, fraudulent, invalid or
insufficient or any statement therein being untrue or inaccurate in any respect;
or
(vi) payment by Bank under the Letter of Credit against
presentation of a statement or draft which does not comply with the terms of the
Letter of Credit (unless resulting from the gross negligence or willful
misconduct on the part of Bank).
2.03. Transfer of Letter of Credit. The Letter of Credit may be
transferred in accordance with the provisions set forth therein.
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2.04. Facility, Letter of Credit and Other Fees.
(a) Facility Fee. In consideration of Bank's entry into this
Agreement and Bank's obligations in respect of the Letter of Credit arrangements
provided for hereunder, Borrower shall pay a facility fee (the "Facility Fee")
to Bank in the amount of Eighteen Thousand and 00/100 Dollars ($18,000.00) which
facility fee will be paid on or before Closing.
(b) Annual Letter of Credit Fee. In addition to the Facility Fee,
Borrower shall pay to Bank, in addition to the amount payable under Section
2.04(a) hereof, a fee of Eighteen Thousand and 00/100 Dollars ($18,000.00) (the
"Letter of Credit Fee"), payable on the first anniversary of the Effective Date
and continuing on each anniversary thereafter for so long as the Letter of
Credit remains in effect. Interest shall be payable on any overdue Letter of
Credit Fees from the date such Letter of Credit Fees shall be payable until such
Fees are paid in full, at the rate provided in Section 2.02(b) above, computed
on the actual number of days elapsed in a year of 360 days. Borrower
acknowledges that the foregoing shall not in any way impair Borrower's ability
to terminate, or give notice of its intent to terminate, the Letter of Credit at
any time in accordance with its terms.
(c) Other Costs and Expenses. In addition to the fees set forth
above, Borrower shall pay to Bank, on demand, all reasonable out-of-pocket
costs, fees and expenses incurred by Bank in obtaining any confirmation of the
Letter of Credit (including, without limitation, the estimated $9,000 per year
fee expected to be charged by BB&T in connection with the initial Letter of
Credit for so long as BB&T continues to provide such confirmation) in connection
with the execution of any documents or opinions related to, and any and all
other reasonable expenses, to the extent permitted by law, incurred by Bank in
enforcing any of its rights under this Agreement.
2.05. Reimbursement of Certain Costs.
(a) If any change in any law or regulation or in the interpretation
thereof by any Governmental Authorities charged with the administration thereof
shall either (i) impose, modify or hold applicable any reserve, special deposit
or similar requirement against the Letter of Credit issued by Bank or (ii)
impose on Bank any other condition regarding this Agreement or the Letter of
Credit, and the result of any event referred to in clause (i) or (ii) above
shall be to increase the cost to Bank of maintaining the Letter of Credit (which
increase in cost shall be the result of Bank's reasonable allocation of the
aggregate of such cost increases resulting from such event(s)), then Bank shall
give Borrower notice thereof and upon demand by Bank, Borrower shall immediately
pay to Bank, from time to time as specified by Bank, additional amounts which
shall be sufficient to compensate Bank for such increased cost, together with
interest on each such amount from the date demanded until payment in full
thereof at the rate provided in Section 2.02(b) above. A certificate as to such
increased cost incurred by Bank as a result of any event mentioned in clause (i)
or (ii) above, submitted by Bank to Borrower, shall be conclusive, absent
manifest error.
(b) In the event that Bank shall have determined that (i) the
adoption, change or interpretation of any law, rule or regulation regarding
capital adequacy, or (ii) compliance by
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Bank or any corporation controlling Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) from any central bank
or governmental authority, does or shall have the effect of reducing the rate of
return on Bank's or such corporation's capital as a consequence of Bank's
obligations hereunder to a level below that which Bank or such corporation could
have achieved but for such adoption, change, interpretation or compliance
(taking into consideration Bank's or such corporation's policies with respect to
capital adequacy) by an amount deemed by Bank to be material, then from time to
time, after submission by Bank to Borrower of a written request therefor (which
shall be conclusive and binding upon Borrower absent manifest error), Borrower
shall pay to Bank such additional amount or amounts as will compensate Bank for
such reduction.
2.06. Indemnity. (a) Borrower shall indemnify and hold Bank harmless from
and against any and all claims, damages, losses, liabilities, costs or expenses
whatsoever which Bank may incur or suffer by reason of or in connection with the
execution and delivery of, or payment under, the Letter of Credit except to the
extent that any such claims, damages, losses, liabilities, costs or expenses
shall be caused by the willful misconduct or gross negligence of Bank in
performing its obligations under this Agreement (it being understood that (i)
payment by Bank based upon Bank's exclusive reliance on the documents presented
to Bank in accordance with the terms of the Letter of Credit as to any and all
matters set forth therein, whether or not any statement or any document
presented pursuant to the Letter of Credit proves to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein proves to be
untrue or inaccurate in any respect whatsoever, and (ii) any immaterial
noncompliance, shall not be deemed willful misconduct or gross negligence of
Bank).
(b) Borrower shall indemnify Bank against any loss or expense which
Bank has sustained or incurred as a consequence of any default by Borrower in
the performance or observance of any covenant or condition contained in this
Agreement including, without limitation, any failure of Borrower to pay when due
(by demand, maturity or otherwise) any principal, interest, Letter of Credit Fee
or any other amount due hereunder.
(c) Borrower, upon demand by Bank at any time, shall reimburse Bank
for any reasonable legal or other reasonable expenses incurred in connection
with investigating or defending against any of the foregoing.
(d) If Bank sustains any loss or expense for which it shall be
indemnified hereunder, it shall from time to time notify Borrower of the amount
determined in good faith by Bank (which determination shall be prima facia
correct) to be necessary to indemnify Bank for such loss or expense. Such amount
shall be due and payable by Borrower to Bank five (5) Business Days after such
notice is given and shall bear interest at the rate of the Adjusted Prime Rate
plus two percent (2.0%) (based on a year of 360 days for the actual number of
days allowed) from the due date until paid before and after judgment. The
indemnities contained herein shall survive the termination of the agreement and
the expiration of the Letter of Credit.
2.07. Payments. All payments to be made in respect of principal, interest,
commitment or other amounts due from Borrower under this Agreement shall be
payable by 12:00 noon, New Castle time, on the day when due without presentment,
demand, protest or notice (unless
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otherwise specifically provided herein) of any kind, all of which are hereby
expressly waived, and an action therefor shall immediately accrue. Such payments
shall be made to Bank at its Office in U.S. dollar funds immediately available
at such Office without setoff, counterclaim or other deduction of any nature.
Payments made under this Agreement are to be credited first to interest and
lawful charges then accrued, then to principal.
2.08. Late Charge. In the event of a default in the payment of any
installment of interest or principal due hereunder for more than ten (10)
Business Days after the said installment becomes due, in addition to making
payment of the installment due and all interest thereon, Borrower will pay to
Bank a late charge in an amount equal to five percent (5%) of any such overdue
installment.
2.09. Liability of Bank. Borrower assumes all risks of the acts or
omissions of the Beneficiary (including any transferee) of the Letter of Credit
with respect to its use of the Letter of Credit or proceeds of any Drawing
thereunder. Neither Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use which may be made of the Letter of Credit or its
proceeds or for any acts or omissions of the Beneficiary (including any
transferee) in connection therewith; (b) the validity, sufficiency or
genuineness of documents, inaccuracy of any of the statements or representations
contained in drafts or certificates relating to such Letter of Credit or of any
endorsement(s) thereon, even if such documents should in fact prove to be in any
or all respects invalid, insufficient, fraudulent or forged; (c) payment by Bank
against presentation of documents which do not strictly comply with the terms of
the Letter of Credit; or (d) any other circumstances whatsoever in making or
failing to make payment under the Letter of Credit, except Borrower shall have a
claim against Bank, and Bank shall be liable to Borrower, to the extent, but
only to the extent, of any direct, as opposed to consequential, special or other
damages suffered by Borrower which were actually caused by Bank's willful
misconduct or gross negligence in honoring a draft under the Letter of Credit.
In furtherance and not in limitation of the foregoing, Bank (and any confirming
bank with respect to the Letter of Credit) may accept documents that appear on
their face to be in order, and may assume the genuineness and rightfulness of
any signature thereon, without responsibility for further investigation,
regardless of any notice or information to the contrary; provided, that if the
Bank shall receive written notification from the Beneficiary and Borrower that
documents conforming to the terms of the Letter of Credit to be presented to
Bank are not to be honored, and Bank agrees that it will not subsequently honor
such documents, Borrower shall hold Bank harmless from such failure to honor.
2.10. Costs, Expenses and Taxes. Borrower agrees to pay on demand all
reasonable out-of-pocket costs and expenses in connection with the
administration of this Agreement and any other documents which may be delivered
in connection with this Agreement, including, without limitation, to the extent
permitted by law, the reasonable fees and expenses of counsel for Bank, and
local counsel who may be retained by said counsel, with respect thereto and with
respect to advising Bank as to its rights and responsibilities under this
Agreement in addition thereto, and all costs and expenses, if any, including but
not limited to the reasonable fees and expenses of counsel in connection with
the enforcement of this Agreement and such other documents which may be
delivered in connection with this Agreement. In addition, Borrower shall pay any
and all taxes and fees payable or determined to be payable, to governmental
third parties in connection
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with the execution, delivery, filing and recording of this Agreement and such
other documents which may be delivered in connection with this Agreement, and
agrees to save Bank harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees, provided, that Bank agrees promptly to notify Borrower of any such
taxes and fees.
2.11. Obligations of Bank. The obligations of Bank under the Letter of
Credit shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of the Letter of Credit and this
Agreement. Borrower acknowledges that the interest rate to be paid on the Note
is in part dependent upon the credit standing and rating of Bank. Borrower
further acknowledges that Bank shall have no responsibility or liability to
Borrower for any action, failure to act, or any other reason whatsoever, which
causes the interest on the Note to be paid at an increased rate or otherwise
affects the marketability of the Note or the credit standing of Borrower.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Bank as of the Closing Date and
as of the date of an Drawing under the Letter of Credit that:
3.01. Organization and Qualification. Borrower is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Borrower is duly qualified or licensed to do
business as a foreign entity and is in good standing in all jurisdictions in
which the ownership of its properties or the nature of its activities or both
makes such qualification or licensing necessary.
3.02. Power to Carry on Business; Licenses. Borrower has all requisite
power and authority to own and operate its properties and to carry on its
business as now conducted and as presently planned to be conducted. Borrower has
all licenses, permits, consents and governmental approvals or authorizations
necessary to carry on its business as now conducted or as presently planned to
be conducted.
3.03. Execution and Binding Effect. This Agreement and the other Loan
Documents to which Borrower is a party have been duly and properly approved by
all necessary corporate action on the part of Borrower and has been duly and
validly executed and delivered by Borrower and each such document or agreement
constitutes a legal, valid and binding obligation of Borrower who is a party
thereto enforceable in accordance with its terms.
3.04. Absence of Conflicts. Neither the execution and delivery of this
Agreement or the other Loan Documents, nor the consummation of the transactions
contemplated in any of them, nor the performance of or compliance with their
terms and conditions will (a) violate any Law, (b) conflict with or result in a
breach of or a default under the articles of incorporation or by-laws
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of Borrower, (c) conflict with or result in a breach or a default under any
material agreement or instrument to which Borrower is a party or by which it or
any of its properties (now owned or acquired in the future) may be subject or
bound or (d) result in the creation or imposition of any Lien upon any property
(owned or leased) of Borrower other than those arising in connection herewith.
3.05. Authorizations and Filings. No authorization, consent, approval,
license, exemption or other action by, and no registration, qualification,
designation, declaration or filing with, any Governmental Authorities is or will
be necessary or advisable in connection with the execution and delivery of this
Agreement or the other Loan Documents, the consummation of the transactions
contemplated in any of them, or the performance of or compliance with the terms
and conditions of this Agreement or the other Loan Documents.
3.06. Ownership and Control. Borrower is a wholly-owned subsidiary of IPEC
Holdings, Inc., a Nevada corporation ("Parent"). Except as set forth on Schedule
3.06 to this Agreement, no person other than Parent has any equity ownership in
Borrower, including any options, rights or warrants to acquire any capital stock
of Borrower and no person other than Parent has any options, sale agreements,
pledges, proxies, voting trusts, powers of attorney and other agreements or
instruments with respect to beneficial or record ownership of or voting rights
with respect to shares of the capital stock of Borrower.
3.07. [Intentionally Omitted]
3.08. Title to Property. Borrower has good and marketable title in fee
simple to all real property and good and marketable title to all other property
purported to be owned by it, and all other real and personal property reflected
in the most recent balance sheet referred to in Section 3.09 of this Agreement
or submitted pursuant to Section 5.01(a) of this Agreement (except as sold or
otherwise disposed of in the ordinary course of business), subject only to Liens
not forbidden by Section 6.01 of this Agreement.
3.09. Financial Statements. Borrower has furnished to Bank consolidated
audited balance sheets, statements of income, stockholders equity and cash flow
of Parent and its subsidiaries for the fiscal year ended December 31, 2003, all
in reasonable detail, with such statements and balance sheets certified by its
independent certified public accountants. All of the foregoing financial
statements (including the notes) present fairly the financial condition of
Parent and its subsidiaries as of the end of such fiscal period and the results
of its operations and the changes in its financial position for the fiscal
period then ended, all in conformity with GAAP applied on a basis consistent
with that of the preceding fiscal period.
3.10. Taxes. All tax returns required to be filed by Borrower have been
properly prepared, executed and filed. All taxes, assessments, fees and other
governmental charges upon Borrower or upon any of its properties, income, sales
or franchises which are due and payable have been paid. The reserves and
provisions for taxes on the books of Borrower are adequate for all open years
and for its current fiscal period. Borrower does not know of any proposed
additional assessment or basis for any assessment for additional taxes (whether
or not reserved against).
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3.11. [Intentionally Omitted]
3.12. Litigation. There is no pending, contemplated or threatened, action,
suit or proceeding by or before any Governmental Authorities against or
affecting Borrower, at law or equity, which, if adversely decided, would have a
material adverse effect on the assets, business, operations or financial
condition of Borrower or on the ability of Borrower to perform its obligations
under the Loan Documents or the Brewton Lease, as the case may be.
3.13. Compliance with Laws. Borrower is not subject to any material
contingent liability on account of any Law, or in violation of any Law.
3.14. Pension Plans. (a) each Plan of Borrower has been and will be
maintained and funded in accordance with its terms and with all provisions of
ERISA and other applicable laws; (b) no Reportable Event as defined in ERISA has
occurred and is continuing with respect to any Plan; (c) no liability to the
PBGC has been incurred with respect to any Plan, other than for premiums due and
payable; (d) no Plan has been terminated, no proceedings have been instituted to
terminate any Plan, and there exists no intent to terminate or institute
proceedings to terminate any Plan; (e) no withdrawal, either complete or
partial, has occurred or commenced with respect to any multi-employer Plan, and
there exists no intent to withdraw either completely or partially from any
multi-employer Plan; and (f) there has been no cessation of, and there is no
intent to cease, operations at a facility or facilities where such cessation
could reasonably be expected to result in a separation from employment of more
than 20% of the total number of employees who are participants under a Plan.
3.15. [Intentionally Omitted]
3.16. Environmental Matters. (a) Neither Borrower nor any of its
Affiliates are in violation of The Comprehensive Environmental Response,
Compensation and Liability Act of 1980 ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986, The Resource Conservation and Recovery Act of 1976,
as amended by the Hazardous and Solid Waste Amendments of 1984, The Clean Water
Act, The Toxic Substances Control Act and The Clean Air Act or any rule or
regulation promulgated pursuant to any of the foregoing statutes, or any other
federal, state or local environmental law, statute, rule, regulation or
ordinance applicable to Borrower or its respective properties (all of the
foregoing are sometimes collectively referred to in this Section 3.17 as the
"Environmental Laws");
(b) Neither Borrower nor any of its Affiliates, directors, officers,
employees, agents or independent contractors have arranged, by contract,
agreement or otherwise, (i) for the disposal or treatment of, or (ii) with a
transporter for the transport, disposal or treatment of, any hazardous substance
(as defined by CERCLA, as amended), owned, used or possessed by Borrower,
whether or not to a location identified by the EPA on the National Priorities
List, 40 C.F.R. Part 300, (or proposed by the EPA in the Federal Register for
listing on such National Priorities List) or identified under any corresponding
state statute or regulation concerning cleanup of waste disposal sites (a "State
Superfund Law");
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(c) To the best knowledge of Borrower after due inquiry, no
predecessor (as defined by CERCLA, as amended) has arranged by contract,
agreement or otherwise, (i) for the disposal or treatment of, or (ii) with a
transporter for transport for the disposal or treatment of, any hazardous
substance (as defined by CERCLA, as amended), owned, used or possessed by any
Predecessor at any location;
(d) Neither Borrower nor any of its Affiliates is an "owner" or
"operator" of a "facility", as defined by CERCLA, as amended, or any State
Superfund Law; and
(e) Neither Borrower nor any of its Affiliates "owned" or "operated"
any "facility" at the time any hazardous substances were disposed of at such
"facility" within the meaning of CERCLA, as amended, or any State Superfund Law.
3.17. No Event of Default; Compliance with Agreements. No event has
occurred and is continuing and no condition exists which constitutes an Event of
Default or Potential Default. Borrower is not (i) in violation of any term of
any charter instrument, or bylaw or (ii) in default under any material
agreement, lease or instrument to which Borrower is a party or by which it or
any of its properties (owned or leased) may be subject or bound.
3.18. No Material Adverse Change. Since December 31, 2003, there has been
no material adverse change in the assets, business, operations, management or
financial condition of Borrower.
3.19. No Offsets. Borrower does not have any offsets or defenses with
respect to its obligations hereunder or under any other Loan Document.
3.20. Accurate and Complete Disclosure. No representation or warranty made
by Borrower under this Agreement or the other Loan Documents and no statement
made by Borrower in any financial statement (furnished pursuant to Sections 3.09
or 5.01 or otherwise), certificate, report, exhibit or document furnished by
Borrower to Bank pursuant to or in connection with this Agreement is false or
misleading in any material respect (including by omission of material
information necessary to make such representation, warranty or statement not
misleading). Borrower is not aware of any facts which it has not disclosed to
Bank in writing which materially and adversely affects, or would materially and
adversely affect, the assets, business, operations or financial condition of
Borrower or the ability of Borrower to perform its obligations under this
Agreement and the other Loan Documents.
ARTICLE IV
CONDITIONS TO CLOSING
The obligation of Bank to issue the Letter of Credit and to otherwise
effect the Closing hereunder is subject to satisfaction of the following
conditions on or prior to the Closing Date.
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4.01. Certain Items to be Supplied. On or prior to the Closing, Borrower
shall have furnished, and following the Closing, Borrower will, as indicated
below, furnish, to Bank at Borrower's own cost and expense the following, all of
which shall be satisfactory in form, content and substance to Bank in its sole
discretion:
(a) The applicable Loan Documents to which Borrower or any of its
Affiliates is, or is intended to be, a party, duly executed by Borrower and the
appropriate Affiliates.
(b) Evidence in such form as Bank may require evidencing fire
insurance, extended insurance coverage, and flood insurance (if applicable) on
the Collateral, as well as general public liability and workmen's compensation
insurance (with amounts and coverage as required by law) with respect to persons
employed at the Borrower's leased facility in Brewton, Alabama. All such
policies of insurance shall be issued by insurance companies and in such amounts
as Bank may approve in its reasonable discretion and shall contain provisions
for at least thirty (30) days notice to Bank prior to cancellation or expiration
thereof.
(c) Payment of the Facility Fee and all other closing fees due on
the Closing Date pursuant to Section 2.04, Section 8.06, or any other provisions
herein.
(d) Payment of the initial Sinking Fund deposit into the Sinking
Fund Account pursuant to Section 5.14 hereof.
(e) Such other instruments, documents and opinions as may be set
forth on the closing checklist supplied by Bank with respect to the Closing of
the transaction contemplated hereby or as Bank shall reasonably require to
evidence and secure Borrower's obligations hereunder, and to comply with the
provisions hereof and the requirements of regulatory authorities to which Bank
is subject.
4.02. Repayment of Loans. Borrower shall have repaid in full the following
loans:
(a) Sky Bank loan # 1300293039 (approx. $1,084,774.26 outstanding as
of 4/19/04); and
(b) Sky Bank loan # 1300063203 (approx. $800,226.81 outstanding as
of 4/19/04);
including, in each case, applicable satisfaction fees.
4.03. Accuracy of Representations and Warranties; Events of Default and
Potential Defaults. The representations and warranties contained in Article III
shall be true and correct in all respects.
4.04. Proceedings and Incumbency. Borrower shall have been delivered to
Bank, certificates, in form and substance satisfactory to Bank, dated the
Closing Date and signed on behalf of Borrower certifying as to (a) a true copy
of Borrower's certificates or Articles of Incorporation (as applicable) and
By-laws as in effect on such date, (b) true copies of all action
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taken by Borrower relative to the Loan Documents including, but not limited to,
that described in Section 3.03 and (c) the names, true signatures and incumbency
of the officers of Borrower and the partners of Borrower.
4.05 Consummation of Brewton Lease. Borrower shall have entered into the
Brewton Lease and delivered evidence thereof to Bank.
ARTICLE V
AFFIRMATIVE COVENANTS
Borrower covenants and agrees with Bank as follows:
5.01. Reporting and Information Requirements.
(a) Annual Audited Reports. As soon as practicable, and in any event
within 120 days after the close of each fiscal year of Borrower, Borrower will
furnish to Bank audited consolidated balance sheets, statements of income,
stockholders equity and cash flow of Parent and its subsidiaries as of and for
each fiscal year end and notes to each, all in reasonable detail, with such
statements and balance sheet to be certified by Xxxxx Xxxxxx Company LLP, or
other independent certified public accountants of recognized standing selected
by Borrower and satisfactory to Bank. The independent auditor's report of such
accountants shall be free of exception or qualifications not acceptable to Bank
and shall in any event contain a written statement of such accountants
substantially to the effect that such accountants prepared such statement and
balance sheet in accordance with GAAP applied on a basis consistent with that of
the preceding fiscal year (except for changes in application in which such
accountants concur). In addition, upon request of Bank, Borrower will deliver
internally prepared annual financial statements and a balance sheet showing the
prior fiscal year and the current fiscal period in comparative form.
(b) Quarterly Reports. As soon as practicable, and in any event
within 45 days after the close of each fiscal quarter of Borrower, Borrower will
furnish to Bank, consolidated statements of income and cash flow for Parent and
its subsidiaries for such quarter and for the portion of the fiscal year to the
end of such quarter, and a balance sheet of the statements and balance sheets
shall be prepared by Parent and certified by the Treasurer or Controller of
Parent as presenting fairly the financial position of the Parent and its
subsidiaries as of the end of such period and the results of their operations
for such periods subject to year end adjustment, in conformity with GAAP applied
in a manner consistent with that of the most recent audited financial statements
furnished to the Bank.
(c) Annual Reviewed Reports of Guarantors. As soon as practicable,
and in any event within 120 days after the close of each calendar year, Borrower
will cause the Guarantors to furnish to Bank: (i) in the case of Xxxxxxx X.
Xxxx, Xx. and Xxxxxxx X. Xxxx, and Xxxxxx Xxxxxxxx, Xx. and Xxxx Xxxx Xxxxxxxx,
a current personal financial statement and federal and state tax returns for the
prior calendar year, and (ii) in the case of IPEC Holdings, Inc.,
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audited balance sheets, statements of income, stockholders equity and cash flow
of IPEC Holdings, Inc. as of and for each fiscal year end and notes to each, all
in reasonable detail.
5.02. Preservation of Existence and Franchises. Borrower will maintain its
corporate existence, rights and franchises in full force and effect in its
jurisdiction of incorporation. Borrower will qualify and remain qualified as a
foreign entity in each jurisdiction in which failure to receive or retain
qualification would have a material adverse effect on the assets, business,
operations or financial condition of Borrower.
5.03. Insurance. Borrower will maintain, with financially sound and
reputable insurers, insurance with respect to its properties and business and
against such liabilities, casualties and contingencies and of such types and in
such amounts as is satisfactory to Bank and as is customary in the case of
corporations, or other entities engaged in the same or similar business or
having similar properties similarly situated, including but not limited to,
workers' compensation insurance, property insurance and comprehensive general
liability insurance. Borrower will add Bank as loss payee to all policies of
insurance which insure against loss of or damage to the Collateral and provide
Bank with thirty (30) days advance notice of the termination or material
modification of any such policy of insurance.
5.04. Maintenance of Properties. Borrower will maintain or cause to be
maintained in good repair, working order and condition, the properties now or in
the future owned, leased or otherwise possessed by Borrower and shall make or
cause to be made all needful and proper repairs, renewals, replacements and
improvements to the properties so that the business carried on in connection
with the properties may be properly and advantageously conducted at all times.
Borrower shall notify Bank prior to any change in the location of any of its
properties or business.
5.05. Payment of Liabilities. Borrower will pay or discharge:
(a) on or prior to the date on which penalties attach, all taxes,
assessments and other governmental charges or levies imposed upon it or any of
its properties or income;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like persons
which, if unpaid, might result in the creation of a Lien upon any of its
property;
(c) on or prior to the date when due, all other lawful claims which,
if unpaid, might result in the creation of a Lien upon any of its property; and
(d) all other current liabilities so that none is due more than
forty-five (45) days after the due date for each liability, except, with the
prior written consent of Bank, current liabilities which are subject to good
faith dispute and as to which Borrower have created adequate reserves on its
books.
5.06. Financial Accounting Practices. Borrower will make and keep books,
records and accounts which, in reasonable detail, accurately and fairly reflect
its transactions and dispositions
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of assets and maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (a) transactions are executed in accordance
with management's general or specific authorization, (b) transactions are
recorded as necessary (i) to permit preparation of financial statements in
conformity with GAAP and (ii) to maintain accountability for assets, (c) access
to assets is permitted only in accordance with management's general or specific
authorization and (d) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
5.07. Compliance with Laws. Borrower shall comply with all applicable
Laws, the noncompliance with which would have a material adverse effect on the
assets, business, operations, management or financial condition of Borrower.
5.08. Pension Plans. Borrower shall (a) keep in full force and effect any
Plan which is presently in existence or may, from time to time, come into
existence under ERISA, unless each such Plan can be terminated without material
liability to Borrower in connection with such termination; (b) make
contributions to each Plan of Borrower in a timely manner and in a sufficient
amount to comply with the requirements of ERISA; (c) comply with all material
requirements of ERISA which relate to such Plan so as to preclude the occurrence
of any Reportable Event, Prohibited Transaction (other than a Prohibited
Transaction subject to an exemption under ERISA) or material accumulated funding
deficiency as such term is defined in ERISA; and (d) notify Bank immediately
upon receipt by Borrower of any notice of the institution of any proceeding or
other action which may result in the termination of any Plan. Borrower shall
deliver to Bank, promptly after the filing or receipt thereof, copies of all
reports or notices which Borrower files or receives under ERISA with or from the
Internal Revenue Service, the PBGC, or the U.S. Department of Labor, other than
reports or notices which do not materially or adversely (i) affect Borrower, its
businesses, assets or financial condition, or (ii) its ability to perform its
obligations under this Agreement.
5.09. Continuation of and Change in Business. Borrower will continue to
engage in its business and activities as currently conducted or anticipated to
be conducted and will not engage in any other businesses or activities without
prior written consent of Bank.
5.10. Lien Searches. Bank may, but shall not be obligated to, conduct lien
searches of Borrower and its assets and properties at such times as Bank, in its
sole reasonable discretion, may determine to be necessary. Borrower shall
reimburse Bank for Bank's out-of-pocket costs in connection with such lien
searches.
5.11. Further Assurances. Borrower, at its own cost and expense, will
cause to be promptly and duly taken, executed, acknowledged and delivered all
such further acts, documents and assurances as Bank may from time to time
request in order more effectively to carry out the intent and purposes of this
Agreement and the transactions contemplated by this Agreement and to cause the
security interest or interests, the liens, or conveyance granted under the
Security Agreement or any other Loan Documents to be, at all times, valid,
perfected and enforceable against Borrower and all third parties. All expenses
of such filings, and recordings, and refilings, and rerecordings, shall be borne
by Borrower.
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5.12. Financing Statements. Promptly upon request by Bank, Borrower shall
execute and deliver and file and record and refile and rerecord such financing
statements, assignments and other such documents in such manner, at such time or
times and in such place or places as may be required by law, and cause to be
taken such other actions as may be required by law or as may be requested by
Bank in order to cause the security interest or interests or the Liens to become
at all times, valid, perfected and enforceable against Borrower and all third
parties. Borrower appoints Bank as its agent and attorney to execute such
financing statements in Borrower's name.
5.13. Financial Covenants of Borrower. The following financial covenants
with respect to Borrower shall apply:
As set forth on Exhibit B, hereto.
5.14. Payment into Sinking Fund. In further inducement to cause Bank's to
issue the Letter of Credit and as additional collateral for its obligations
under this Agreement, Borrower agrees to pay into a segregated account with Bank
listed on Exhibit C hereto (the "Sinking Fund Account") on the Closing Date and
on or before the last day of every month following the Closing Date until the
earlier of (i) the fifth anniversary of the Closing Date or (ii) the date on
which this Agreement termniated, $6,667 in immediately available cash, all such
funds, together with any interest thereon being referred to herein as the
"Sinking Fund"). The Sinking Fund shall constitute part of the Collateral, and
shall be subject to the Security Agreement. Amounts in the Sinking Fund Account
shall bear interest at Bank's then current money market rate for an account of a
comparable type and size (as determined by Bank in its reasonable discretion).
Upon payment and performance in full of the Debt and termination of this
Agreement, Bank shall promptly transmit to Borrower all amounts remaining in the
Sinking Fund Account, if any.
ARTICLE VI
NEGATIVE COVENANTS
Borrower covenants to Bank as follows:
6.01. Liens. Without the prior written consent of Bank, Borrower shall not
at any time create, incur, assume or suffer to exist any Lien on any of the
Collateral, tangible or intangible, now owned or acquired in the future, except:
(a) Liens existing on the date hereof and set forth on Schedule 6.01
attached hereto;
(b) Liens arising from taxes, assessments, charges, levies or claims
described in Section 5.05 of this Agreement that are not yet due;
(c) Mechanics', carriers', workmen's, repairmen's or similar liens
arising in the ordinary course of business in respect of obligations which are
not yet due; and
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(d) Zoning restrictions, easements, minor restrictions on the use of
real property, minor irregularities in title to real property and other minor
Liens that do not secure the payment of money or the performance of an
obligation and that do not in the aggregate materially detract from the value of
a property or asset, or materially impair its use in the business of Borrower.
6.02. Indebtedness. Borrower will not, without the prior written consent
of Bank, at any time create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness under this Agreement or the other Loan Documents or
under any other document, instrument or agreement between Borrower and Bank;
(b) Indebtedness described in Schedule 6.02 to this Agreement;
provided, however, that none of such Indebtedness shall be extended, renewed or
refinanced without the prior written consent of Bank; and
(c) Current accounts payable, accrued expenses and other current
items arising out of transactions (other than borrowings) in the ordinary course
of business.
6.03. Guarantees and Contingent Liabilities. Borrower will not, without
the prior written consent of Bank, at any time directly or indirectly assume,
guarantee, endorse or otherwise agree, become or remain directly or contingently
liable upon or with respect to any obligation or liability of any other person,
firm or entity.
6.04. Loans and Investments. Without the prior written consent of Bank,
Borrower will not at any time make or suffer to remain outstanding any loan or
advance to, or purchase, acquire or own any stock, bonds, notes or securities
of, or any partnership interest (whether general or limited) in, or any other
interest in, or make any capital contribution to, any other Person, or agree,
become or remain liable to do any of the foregoing, except receivables owing to
Borrower, if created or acquired in the ordinary course of business and payable
or dischargeable in accordance with customary trade terms.
6.05. Leases. Borrower will not, without the prior written consent of
Bank, at any time enter into or suffer to remain in effect any agreement to
lease, as lessee or lessor, any real or personal property, except:
(a) leases existing on the Closing Date and described on Schedule
6.05 to this Agreement;
(b) operating leases, by Borrower as lessee, of personal property
used by Borrower in the ordinary course of its business provided that the
aggregate amount of all lease payments under all such leases shall not exceed
Ten Thousand and 00/100 Dollars ($10,000.00); and
(c) the Brewton Lease.
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6.06. Merger; Consolidation; Business Acquisitions. Borrower will not,
without the prior written consent of Bank, merge or agree to merge with or into
or consolidate with any other Person. Borrower will not, without the prior
written consent of Bank, acquire any material portion of the stock or assets or
business of any other Person.
6.07. Dispositions of Assets. Borrower will not, without the prior written
consent of Bank, sell, convey, pledge, assign, lease, abandon or otherwise
transfer or dispose of, voluntarily or involuntarily (any of the foregoing being
referred to in this Section as a transaction and any series of related
transactions constituting but a single transaction), any of its properties or
assets, tangible or intangible (including stock of subsidiaries), except for
sales of inventory in the ordinary course of business and so long as there is no
Event of Default hereunder, the disposition of equipment or fixtures which are
obsolete and no longer useful to the conduct of Borrower's business.
6.08. Self-Dealing. Borrower will not, without the prior written consent
of Bank, enter into or carry out any loan, advance or other transaction
(including, without limitation, purchasing property or services or selling
property or services) with any Affiliate except that shareholders, directors,
officers or partners of a Borrower may render services to Borrower for
compensation at substantially the same rates generally paid by corporations or
partnerships engaged in the same or similar businesses for the same or similar
services, and a Borrower may carry out transactions with Affiliates in the
ordinary course of business if required by Borrower's business and made on terms
no less favorable to Borrower than Borrower could obtain in a comparable arms
length transaction.
6.09. [Intentionally Omitted]
6.10. Margin Stock. Borrower will not use the proceeds of any Loans
directly or indirectly to purchase or carry any "margin stock" (within the
meaning of Regulations U, G, T, or X of the Board of Governors of the Federal
Reserve System) or to extend credit to others for the purpose of purchasing or
carrying, directly or indirectly, any margin stock.
6.11. Ownership and Control. Borrower shall not, and shall not permit the
owners of the capital stock of Borrower to, directly or indirectly, cause any
change in the ownership of Borrower.
ARTICLE VII
DEFAULTS
7.01. Events of Default. An Event of Default means the occurrence or
existence of one or more of the following events or conditions (whatever the
reason for such Event of Default and whether voluntary involuntary or effected
by operation of Law).
(a) Borrower shall fail to pay principal on any Drawing when due; or
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(b) Borrower shall fail to pay interest on any Drawing or any fees
payable pursuant to Article II of this Agreement within five (5) Business Days
after the date such is due; or
(c) Borrower shall fail to pay any other fee, or other amount
payable pursuant to this Agreement or any of the other Loan Documents when due
and such failure shall continue for a period of five (5) Business Days after
notice thereof is given to Borrower; or
(d) Any representation or warranty made by Borrower under this
Agreement or any of the other Loan Documents or any statement made by Borrower
in any financial statement, certificate, report, exhibit or document furnished
by Borrower to Bank pursuant to this Agreement or the other Loan Documents shall
prove to have been false or misleading in any material respect as of the time
when made; or
(e) Bank's Lien or security interest under the Security Agreement or
any of the other Loan Documents is or shall become unperfected; or
(f) Borrower shall be in default in the performance or observance of
any covenant contained in Articles V and VI of this Agreement; or
(g) Borrower shall be in default in the performance or observance of
any other covenant, agreement or duty under this Agreement or the other Loan
Documents (not constituting an Event of Default under any other provision of
this Section 7.01) and such default shall continue for a period of thirty (30)
days after notice thereof is given to Borrower; or
(h) An Event of Default shall occur under any other agreement or
instrument by and between Bank and Borrower; or
(i) Borrower shall (i) default (as principal or guarantor or other
surety) in any payment of principal of or interest on any obligation (or set of
related obligations) for borrowed money, beyond any period of grace with respect
to the payment or, if an obligation (or set of related obligations) is or are
payable or repayable on demand, fails to pay or repay such obligation or
obligations when demanded, or (ii) default in the observance of any other
covenant, term or condition contained in any agreement or instrument by which an
obligation (or set of related obligations) is or are created, secured or
evidenced, if the effect of such default is to cause, or to permit the holder or
holders of such obligation or obligations (or a trustee or agent on behalf of
such holder or holders) to cause, all or part of such obligation or obligations
to become due before its or their otherwise stated maturity; or
(k) Borrower shall neglect, refuse or fail to keep in full force and
effect any permit or approval issued by any Governmental Authority which is
required for the operation of its business;
(l) Guarantors shall be in default in the performance or the
observance of any of the covenants, agreements or duties under the Guaranties;
or
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(m) A writ or warrant of attachment, garnishment, execution,
distraint or similar process shall have been issued against Borrower or any of
its properties; or
(n) An Event of Default (as defined in the Xxxxxxx Lease) shall
occur; or
(o) A proceeding shall be instituted in respect of Borrower:
(i) seeking to have an order for relief entered in respect of
Borrower, or seeking a declaration or entailing a finding that Borrower is
insolvent or a similar declaration or finding, or seeking dissolution,
winding-up, charter revocation or forfeiture, liquidation, reorganization,
arrangement, adjustment, composition or other similar relief with respect to
Borrower, its assets or its debts under any law relating to bankruptcy,
insolvency, relief of debtors or protection of creditors, termination of legal
entities or any other similar law now or in the future; or
(ii) seeking appointment of a receiver, trustee, custodian,
liquidator, assignee, sequestrator or other similar official for Borrower, or
for all or any substantial part of its property; or
(p) Borrower shall become insolvent, shall become generally unable
to pay its debts as they become due, shall voluntarily suspend transaction of
its business, shall make a general assignment for the benefit of creditors,
shall institute a proceeding described in Section 7.01(o)(i) of this Agreement
or shall consent to any order for relief, declaration, finding or relief
described in Section 7.01(o)(i) of this Agreement, shall institute a proceeding
described in Section 7.01(o)(ii) of this Agreement or shall consent to the
appointment or to the taking of possession by any such official of all or any
substantial part of its property whether or not any proceeding is instituted,
dissolve, wind-up or liquidate themselves or any substantial part of its
property, or shall take any action in furtherance of any of the foregoing.
7.02. Consequences of an Event of Default. Bank may, in addition to the
other remedies available to it at law or in equity, or under any of the Loan
Documents exercise one or more of the following remedies: (i) by notice to
Borrower, declare the total amount available to be drawn under the Letter of
Credit, (the "Exposure Amount") and all other obligations of Borrower hereunder
to be forthwith due and payable, and the same shall thereupon become due and
payable without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived; provided, however, that upon the
occurrence of an Event of Default described in Sections 7.01(o) and 7.01(p) the
Exposure Amount and all other obligations of Borrower hereunder shall
automatically become due and payable without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived; or (ii) take such
other action as is permitted by law.
7.03. Set-Off. If the unpaid principal amount of the Drawings and interest
accrued on the unpaid principal amount thereof or other amount owing by Borrower
under this Agreement or the other Loan Documents shall have become due and
payable (by demand or otherwise), Bank and the holder of any participation in
the Letter of Credit will each have the right, in addition to all other rights
and remedies available to it, without notice to Borrower, to set-off
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against and to appropriate and apply to such due and payable amounts any debt
owing to, and any other funds held in any manner for the account of, Borrower by
Bank or by such holder including, without limitation, all funds in all deposit
accounts (whether time or demand, general or special, provisionally credited or
finally credited, or otherwise) now or in the future maintained by Borrower with
Bank or such holder and including amounts held in the Sinking Fund. Borrower
consents to and confirms the foregoing arrangements and confirms Bank's rights
and such holder's rights of banker's lien and set-off. Nothing in this Agreement
will be deemed a waiver or prohibition of or restriction on Bank's rights or any
such holder's rights of banker's lien or set-off.
ARTICLE VIII
MISCELLANEOUS
8.01. Business Days. Except as otherwise provided in this Agreement,
whenever any payment or action to be made or taken under this Agreement or under
any of the other Loan Documents is stated to be due on a day which is not a
Business Day, such payment or action will be made or taken on the next following
Business Day and such extension of time will be included in computing interest
or fees, if any, in connection with such payment or action.
8.02. Records. The unpaid principal amount of the Drawings, the other
Loans the unpaid interest accrued thereon, the interest rate or rates applicable
to such unpaid principal amount and the duration of such applicability shall at
all times be ascertained from the records of Bank, which shall be conclusive
absent manifest error.
8.03. Amendments and Waivers. Bank and Borrower may from time to time
enter into agreements amending, modifying or supplementing this Agreement or any
other Loan Document or changing the rights of Bank or of Borrower under this
Agreement or under any other Loan Document and Bank may from time to time grant
waivers or consents to a departure from the due performance of the obligations
of Borrower under this Agreement or under any other Loan Document. Any such
agreement, waiver or consent must be in writing and will be effective only to
the extent specifically set forth in such writing. In the case of any such
waiver or consent relating to any provision of this Agreement, any Event of
Default or Potential Default so waived or consented to will be deemed to be
cured and not continuing, but no such waiver or consent will extend to any other
or subsequent Event of Default or Potential Default or impair any right
consequent to any other or subsequent Event of Default or Potential Default or
impair any right consequent thereto.
8.04. No Implied Waiver; Cumulative Remedies. No course of dealing and no
delay or failure of Bank in exercising any right, power or privilege under this
Agreement, the Note or any other Loan Document will affect any other or future
exercise of any such right, power or privilege or exercise of any other right,
power or privilege except as and to the extent that the assertion of any such
right, power or privilege shall be barred by an applicable statute of
limitations; nor shall any single or partial exercise of any such right, power
or privilege or any abandonment or discontinuance of steps to enforce such a
right, power or privilege preclude any
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further exercise of such right, power or privilege or of any other right, power
or privilege. The rights and remedies of Bank under this Agreement or any other
Loan Document are cumulative and not exclusive of any rights or remedies which
Bank would otherwise have.
8.05. Notices. All notices, requests, demands, directions and other
communications (collectively notices) under the provisions of this Agreement
must be in writing (including telexed or telecopied communication) unless
otherwise expressly permitted under this Agreement and must be sent by
first-class or first-class express mail, private overnight or next Business Day
courier or by telex or telecopy with confirmation in writing mailed first class,
in all cases with charges prepaid, and any such properly given notice will be
effective when received. All notices will be sent to the applicable party at the
addresses stated below or in accordance with the last unrevoked written
direction from such party to the other parties.
If to Borrower: International Plastics and Equipment Corp.
X.X. Xxx 0000
Xxx Xxxxxx, XX 00000
Attn: Xxxxx Xxxxx
with a copy to: Xxxxx X. Xxxxxxxxx, Esq.
Xxxxx & Xxxxxxx, PC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
If to Bank: Sky Bank
000 X. Xxxxxxxxxx Xxxxxx
Xxx Xxxxxx, XX 00000
Attn: Commercial Loan Department
with a copy to: Xxxxx X. Xxxxxxxx, Esq.
Xxxxx & Xxxxxxx, PC
00 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
8.06. Expenses; Taxes; Attorneys Fees. Borrower agrees to pay or cause to
be paid and to save Bank harmless against liability for the payment of all
reasonable out-of-pocket expenses including, but not limited to, reasonable fees
and expenses of counsel and paralegals for Bank, incurred by Bank from time to
time (i) arising in connection with the preparation, execution, delivery and
performance of this Agreement, the Letter of Credit and the other Loan
Documents, (ii) relating to any requested amendments, waivers or consents to
this Agreement or any of the other Loan Documents and (iii) arising in
connection with Bank's enforcement or preservation of rights under this
Agreement, or any of the other Loan Documents, including but not limited to such
expenses as may be incurred by Bank in the collection of any and all amounts
owed to Bank. Borrower agrees to pay all stamp, document, transfer, recording or
filing taxes or fees and similar impositions now or in the future determined by
Bank to be payable in connection with this Agreement or any other Loan Document.
Borrower agrees to save Bank harmless from and against any and all present or
future claims, liabilities or losses with respect to or resulting from
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any omission to pay or delay in paying any such taxes, fees or impositions. In
the event of a determination adverse to Borrower of any action at law or suit in
equity in relation to this Agreement or the other Loan Documents, Borrower will
pay, in addition to all other sums which Borrower may be required to pay, a
reasonable sum for attorneys and paralegals fees incurred by Bank or any other
participating bank in connection with such action or suit. All payments due from
Borrower under this Section will be added to and become part of the Loans until
paid in full.
8.07. Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement is held invalid or unenforceable
in whole or in part in any jurisdiction, the provision will, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
of the provision in any other jurisdiction or the remaining provisions of this
Agreement in any jurisdiction.
8.08. Governing Law; Consent to Jurisdiction. This Agreement will be
deemed to be a contract under the laws of the Commonwealth of Pennsylvania and
for all purposes will be governed by and construed and enforced in accordance
with the substantive laws, and not the laws of conflicts, of said Commonwealth.
Borrower consents to the exclusive jurisdiction and venue of the federal and
state courts located in Allegheny County, Pennsylvania, in any action on,
relating to or mentioning this Agreement, the Note, the other Loan Documents, or
any one or more of them.
8.09. Prior Understandings. This Agreement and the other Loan Documents
supersede all prior understandings and agreements, whether written or oral,
among the parties relating to the transactions provided for in this Agreement
and the other Loan Documents.
8.10. Duration; Survival. All representations and warranties of Borrower
contained in this Agreement or made in connection with this Agreement or any of
the other Loan Documents shall survive the making of and will not be waived by
the execution and delivery of this Agreement or the other Loan Documents or by
any investigation by Bank. Notwithstanding termination of this Agreement or an
Event of Default, all covenants and agreements of Borrower will continue in full
force and effect from and after the date of this Agreement so long as the Note
is outstanding and until payment in full of all Drawings, interest thereon, and
all fees and other obligations of Borrower under this Agreement or the other
Loan Documents. Without limitation, it is understood that all obligations of
Borrower to make payments to or indemnify Bank will survive the payment in full
of the Note and of all other obligations of Borrower under this Agreement and
the other Loan Documents.
8.11. Term of Agreement. This Agreement will terminate when all
Indebtedness of Borrower to Bank including, without limitation, the Drawings and
interest thereon is paid in full, the Note is paid in full and Bank has no
obligation to reissue or continue the Letter of Credit.
8.12. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties to this Agreement on separate
counterparts each of which, when so
-25-
executed, will be deemed an original, but all such counterparts will constitute
but one and the same instrument.
8.13. Successors and Assigns. This Agreement will be binding upon and
inure to the benefit of Bank, Borrower and its successors and assigns, except
that Borrower may not assign or transfer any of its rights under this Agreement
without the prior written consent of Bank.
8.14. No Third Party Beneficiaries. The rights and benefits of this
Agreement and the other Loan Documents are not intended to, and shall not, inure
to the benefit of any third party.
8.15. Exhibits. All exhibits and schedules attached to this Agreement are
incorporated and made a part of this Agreement.
8.16. Headings. The section headings contained in this Agreement are for
convenience only and do not limit or define or affect the construction or
interpretation of this Agreement in any respect.
8.17. Participation. Bank may from time to time, sell, assign or grant one
or more participations in all or any part of the Letter of Credit or its right,
title and interest in the this Agreement, to another lending officer, lender or
financial institution. Except to the extent otherwise required by the context of
this Agreement, the word "Bank" where used in this Agreement means and includes
any issuer (or guarantor or confirming bank) of the Letter of Credit originally
issued by Bank and each such issuer will be bound by and have the benefit of
this Agreement, the same as if such issuer had been a signatory to this
Agreement. In connection with any such sale, assignment or grant of
participation, Bank may make available to any prospective purchaser, assignee or
participant any information relative to Borrower in Bank's possession.
8.18. Construction. Unless the context of this Agreement otherwise clearly
requires, references to the plural include the singular, the singular the
plural, the part the whole and "or" has the inclusive meaning represented by the
phrase "and/or". References in this Agreement to "judgments" of Bank include
good faith estimates by Bank (in the case of quantitative judgments) and good
faith beliefs by Bank (in the case of qualitative judgments).
8.19. WARRANT OF ATTORNEY TO CONFESS JUDGMENT. BORROWER HEREBY IRREVOCABLY
AUTHORIZES AND EMPOWERS THE PROTHONOTARY, ANY ATTORNEY OR ANY CLERK OF ANY COURT
OF RECORD, UPON AN EVENT OF DEFAULT, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST
BORROWER FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME DUE UNDER THIS REIMBURSEMENT
AGREEMENT, WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF
EXECUTION AND WITH AN AMOUNT EQUAL TO TEN PERCENT (10%) OF THE AMOUNT OF SUCH
JUDGMENT, BUT NOT LESS THAN ONE THOUSAND DOLLARS ($1,000.00), ADDED FOR
ATTORNEYS' COLLECTION FEES. TO THE EXTENT PERMITTED BY LAW, BORROWER RELEASES
ALL ERRORS IN SUCH PROCEEDINGS. IF A COPY OF THIS REIMBURSEMENT AGREEMENT,
VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF BANK, SHALL HAVE BEEN FILED
-26-
IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL REIMBURSEMENT
AGREEMENT AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE
THEREOF AND MAY BE EXERCISED AS OFTEN AS BANK SHALL FIND IT NECESSARY AND
DESIRABLE AND THIS REIMBURSEMENT AGREEMENT OR A COPY THEREOF SHALL BE A
SUFFICIENT WARRANT THEREFOR. BANK MAY CONFESS ONE OR MORE JUDGMENTS IN THE SAME
OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE AMOUNT OWING HEREUNDER,
WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN CONFESSED ON MORE THAN
ONE OCCASION FOR THE SAME AMOUNT. IN THE EVENT ANY JUDGMENT CONFESSED AGAINST
BORROWER HEREUNDER IS STRICKEN OR OPENED UPON APPLICATION BY OR ON BORROWER'S
BEHALF FOR ANY REASON, BANK IS HEREBY AUTHORIZED AND EMPOWERED TO AGAIN APPEAR
FOR AND CONFESS JUDGMENT AGAINST BORROWER FOR ANY PART OR ALL OF THE AMOUNTS
OWING HEREUNDER, AS PROVIDED FOR HEREIN, IF DOING SO WILL CURE ANY ERRORS OR
DEFECTS IN SUCH PRIOR PROCEEDINGS.
8.20. WAIVER OF TRIAL BY JURY. BORROWER AND INITIALS:
BANK EXPRESSLY, KNOWINGLY AND VOLUNTARILY WAIVE
ALL BENEFIT AND ADVANTAGE OF ANY RIGHT TO A TRIAL JG
BY JURY, AND NEITHER WILL AT ANY TIME INSIST UPON, --------------
OR PLEAD OR IN ANY MANNER WHATSOEVER CLAIM OR TAKE Borrower
THE BENEFIT OR ADVANTAGE OF A TRIAL BY JURY IN ANY
ACTION ARISING IN CONNECTION WITH THIS AGREEMENT, JDK
THE LETTER OF CREDIT, THE NOTE OR ANY OF THE LOAN --------------
DOCUMENTS. Bank
8.21 Control. Bank does not control either directly or indirectly through
one or more intermediaries, Borrower. Likewise, Borrower does not control either
directly or indirectly through one or more intermediaries, Bank. "Control" for
this purpose has the meaning given to such term in section 2(a)(9) of the
Investment Company Act of 1940. Bank and Borrower covenant and agree,
respectively, to provide written notice to the Beneficiary thirty days prior to
the consummation of any transaction that would result in Borrower controlling or
being controlled by Bank.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, and intending to be legally bound, the parties
hereto, by their duly authorized officers or partners, have executed and
delivered this Letter of Credit and Reimbursement Agreement as of the date set
forth at the beginning of this Agreement.
Attest: INTERNATIONAL PLASTICS AND
EQUIPMENT CORP.
By: /s/ Xxxxxxx X. Xxxx, Xx By: /s/ Xxxxxx Xxxxxxxx, Xx
Title: Secretary Title: President
SKY BANK
By: Xxxx X. Xxxxx
Title: Executive Vice-President
-28-
Exhibit B
Financial Covenants of Borrower
1. Tangible Net Worth. Borrower shall maintain at all times a Tangible Net Worth
of at least $4,000,000. "Tangible Net Worth" is defined as the excess of total
assets over total liabilities, total assets and total liabilities each to be
determined in accordance with GAAP, excluding, however, from the determination
of total assets are assets that would be classified as intangible assets under
GAAP, including, without limitation, goodwill, patents, trademarks, trade names,
copyrights and franchises.
2. Leverage Ratio. Borrower shall maintain, based upon fiscal year end audited
financial statements, a ratio of Total Liabilities to Tangible Net Worth of not
greater than 2.50 to 1.0. "Total Liabilities" is defined as all obligations of
Borrower which, in accordance with GAAP, would be classified as liabilities on
the balance sheet of Borrower.
3. Debt Service Coverage. Borrower shall maintain a Debt Service Coverage Ratio
of 1.20 to 1.0. This ratio shall be calculated by summing net income plus
non-cash expenses plus interest previously paid for that period divided by total
annual debt obligations. Annual debt obligation would include annual principal
and interest and include all indebtedness whether direct or contingent to
Borrower.
The foregoing ratios and net worth covenants (Items 1-3) shall be tested
annually commencing December 31, 2004.
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Exhibit C
Sinking Fund Account
Sky Bank Deposit Account #0000000000
-30-
Scheule 6.2
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