EXHIBIT 10(Q)
THE OBLIGATIONS HEREUNDER AND THE RIGHTS AND REMEDIES EVIDENCED HEREBY ARE
SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN
SUBORDINATION AGREEMENT (THE "SUBORDINATION AGREEMENT") DATED AS OF EVEN DATE
HEREWITH BETWEEN LENDER AND FOOTHILL CAPITAL CORPORATION ("FOOTHILL"), TO THE
INDEBTEDNESS (INCLUDING INTEREST) OWED BY BORROWER TO FOOTHILL PURSUANT TO THAT
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT DATED AS OF FEBRUARY 19, 1998,
BY AND AMONG BORROWER, PUBLISHING SOLUTIONS INC. AND FOOTHILL, AS AMENDED; AND
EACH SUCCESSOR TO THE OBLIGATIONS AND RIGHTS OF LENDER HEREUNDER SHALL BE BOUND
BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
CREDIT FACILITY AND SECURITY AGREEMENT
ACCOUNTS RECEIVABLE, INVENTORY AND EQUIPMENT
On this 29th day of September, 1999, Borrower and Lender (as
hereinafter defined), in consideration of the premises, and the covenants and
agreements contained herein, hereby mutually agree as follows:
1. DEFINITIONS
"ACCOUNT" means (a) any account, and (b) any right to payment for Goods sold or
leased or for services rendered which is not evidenced by an Instrument or
Chattel Paper, whether or not it has been earned by performance.
"ACCOUNT DEBTOR" means the Person who is obligated on an Account Receivable.
"ACCOUNT RECEIVABLE" means, with respect to any Person:
(a) any account receivable, Account, Chattel Paper, Contract
Right, General Intangible, Document, or Instrument owned,
acquired, or received by a Person;
(b) any other indebtedness owed to or receivable owned, acquired,
or received by a Person of whatever kind and however
evidenced; and
(c) any right, title, and interest in a Person's Goods that were
sold, leased, or furnished by that Person and gave rise to
either (a) or (b) above, or both of them. This includes,
without limitation:
(l) any rights of stoppage in transit of a Person's sold,
leased, or furnished Goods;
(2) any rights to reclaim a Person's sold, leased, or
furnished Goods; and
(3) any rights a Person has in such sold, leased, or
furnished Goods that have been returned to or
repossessed by that Person.
"ADVANCE" means an advance made by Lender to Borrower, subject to the
provisions, terms, and conditions of Section 2 of this Agreement.
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"AFFILIATE" means any company that controls, is controlled by, or is under
common control with the Borrower.
"AGREEMENT" means this Credit Facility and Security Agreement between Borrower
and Lender, and includes any partial or total amendment, renewal, restatement,
extension, or substitution of or for such Agreement.
"AMERICAN NATIONAL" means American National Bank of Chicago 00 Xxxxx XxXxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
"BORROWER" means MULTIGRAPHICS, INC., a corporation incorporated under the laws
of the State of Delaware.
"BORROWER'S LOCATION" means the location of the place (1) from which Borrower
manages the main part of its business operations, and (2) where persons dealing
with Borrower would normally look for credit information.
"BANKERS TRUST" means Bankers Trust Company, Xxx Xxxxxxx Xxxxx Xxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"CASH COLLATERAL ACCOUNT" means collectively account number 530051918 with
American National Bank of Chicago, 00 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000 (related to lock box number 72008) and account number 00-000-000 with
Bankers Trust Company, One Bankers Xxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
"CASH SECURITY" means all cash, Instruments, Deposit Accounts, and other cash
equivalents, whether matured or unmatured, whether collected or in the process
of collection, upon which Borrower presently has or may hereafter have any
claim, that are presently or may hereafter be existing or maintained with,
issued by, drawn upon, or in the possession of Lender.
"CHATTEL PAPER" means (a) any chattel paper, and (b) any writing or writings
that evidence both a monetary obligation and a security interest in or a lease
of specific Goods. If a transaction is evidenced both by such an agreement for
security or a lease and by an Instrument or a series of Instruments, the group
of writings taken together constitutes Chattel Paper.
"COLLATERAL" means:
(a) all of Borrower's Accounts Receivable, whether now owned or
hereafter acquired or received by Borrower;
(b) all of Borrower's Inventory, whether now owned or hereafter acquired
by Borrower;
(c) all of Borrower's Equipment, whether now owned or hereafter acquired
by Borrower;
(d) all funds on deposit in the Cash Collateral Account;
(e) all of Borrower's Cash Security;
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(f) all of Borrower's General Intangibles
(g) all of Borrower's Investment Property; and
(h) all of the Proceeds, products, profits, and rents of Borrower's
Accounts Receivable, Inventory, Equipment, Cash Security, Cash
Collateral Account, Investment Property and General Intangibles.
"CONTRACT RIGHT" means (a) any contract right, and (b) any right to payment
under a contract not yet earned by performance and not evidenced by an
Instrument or Chattel Paper.
"DEPOSIT ACCOUNT" means (a) any deposit account, and (b) any demand, time,
savings, passbook, or a similar account maintained with a bank, savings and loan
association, credit union, or similar organization, other than an account
evidenced by a certificate of deposit.
"DOCUMENT" means (a) any document, (b) any document of title, including a xxxx
of lading, dock warrant, dock receipt, warehouse receipt or order for the
delivery of Goods, and any other document which in the regular course of
business or financing is treated as adequately evidencing that the Person in
possession of it is entitled to receive, hold, and dispose of the document and
the Goods it covers, and (c) any receipt covering Goods stored under a statute
requiring a bond against withdrawal or a license for the issuance of receipts in
the nature of warehouse receipts even though issued by a Person who is the owner
of the Goods and is not a warehouseman.
"ENVIRONMENTAL LAW" means any federal, state, or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability upon a Person in connection with the use, release or disposal of any
hazardous, toxic or dangerous substance, waste or material.
"EQUIPMENT" means:
(a) any equipment, including without limitation, machinery, office
furniture and furnishings, tools, dies, jigs, and molds;
(b) all Goods that are used or bought for use primarily in a Person's
business;
(c) all Goods that are not Consumer Goods, Farm Products, or Inventory;
and
(d) all substitutes or replacements for, and all parts, accessories,
additions, attachments, or accessions to (a) to (c) above.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"ERISA AFFILIATE" means each Person (whether or not incorporated) which together
with Borrower or any Affiliate would be treated as a single employer under
ERISA.
"EVENT OF DEFAULT" means the occurrence of any of the events set forth in
Section 9 of this Agreement.
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"FINANCIAL IMPAIRMENT" means the distressed economic condition of a Person
manifested by any one or more of the following events:
(a) adjudicated bankruptcy or insolvency or death or discontinuation of
the business of the Person;
(b) the Person admits in writing its inability, to make timely payment
upon the Person's debts, obligations, or liabilities as they mature
or come due;
(c) assignment by the Person for the benefit of creditors;
(d) voluntary institution by the Person or consent granted by the Person
to the involuntary institution whether by petition, complaint,
application, default, answer (including, without limitation, an
answer or any other permissible or required responsive pleading
admitting (1) the jurisdiction of the forum or (2) any material
allegations of the petition, complaint, application, or other
writing to which such answer serves as a responsive pleading
thereto), or otherwise of any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, dissolution,
liquidation, receivership, trusteeship, or similar proceeding
pursuant to or purporting to be pursuant to any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt,
dissolution, liquidation, receivership, trusteeship, or similar law
of any jurisdiction;
(e) voluntary application by the Person for or consent granted by the
Person to the involuntary appointment of any receiver, trustee, or
similar officer (1) for the Person or (2) of or for all or any
substantial part of the Person's property;
(f) entry, without the Person's application, approval, or consent, of
any order that is not dismissed, stayed, or discharged within sixty
(60) days from its entry, which is pursuant to or purporting to be
pursuant to any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, dissolution, liquidation, receivership,
trusteeship or similar law of any jurisdiction (1) approving an
involuntary petition seeking an arrangement of the Person's
creditors, (2) approving an involuntary petition seeking
reorganization of the Person, or (3) appointing any receiver,
trustee, or similar officer (i) for the Person, or (ii) of or for
all or any substantial part of the Person's property;
(g) any judgment, writ, warrant of attachment, execution, or similar
process is issued or levied against all or any substantial part of
the Person's property and such judgment, writ, warrant of
attachment, execution, or similar process is not released, vacated,
or fully bonded within thirty (30) days after its issue or levy.
"FOOTHILL" means Foothill Capital Corporation.
"FOOTHILL OBLIGATIONS" mean the indebtedness (including interest) owed by
borrower to Foothill pursuant to that Amended and Restated Loan and Security
agreement dated as of February 19, 1998, by and among Borrower, Publishing
Solutions Inc. and Foothill, as amended from time to time.
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"FOREIGN ACCOUNT RECEIVABLE" means any Account Receivable that arises out of
contracts with or orders from an Account Debtor that is not a resident of the
United States.
"GENERAL INTANGIBLE" means (a) any general intangible, and (b) any personal
property (including things in action) other than Goods, Accounts, Contract
Rights, Chattel Paper, Documents, Instruments, and money.
"GOODS" means (a) any goods, and (b) all things which are movable at the time
the security interest granted Lender under this Agreement attaches or which are
fixtures but does not include money, Instruments, Documents, Accounts, Chattel
Paper, General Intangibles, and Contract Rights.
"GOVERNMENT ACCOUNT RECEIVABLE" means any Account Receivable that arises out of
contracts with or orders from the United States or any of its departments,
agencies, or instrumentalities.
"INSTRUMENT" means:
(a) any instrument;
(b) any negotiable or nonnegotiable instrument (including, without
limitation, drafts, checks, acceptances, certificates of deposit,
and notes);
(c) any security; and
(d) any other writing which:
(l) evidences a right to the payment of money,
(2) is not itself a security agreement or lease, and
(3) is of a type which in the ordinary course of business is
transferred by delivery with any necessary endorsement or
assignment.
"INVENTORY" means:
(a) any inventory;
(b) all Goods that are raw materials;
(c) all Goods that are work in process;
(d) all Goods that are materials used or consumed in the ordinary course
of a Person's business;
(e) all Goods that are, in the ordinary course of a Person's business,
held for sale or lease or furnished or to be furnished under
contracts of service; and
(f) all substitutes and replacements for, and parts, accessories,
additions, attachments, or accessions to (a) to (e) above.
"INVESTMENT PROPERTY" means a security, whether certificated or uncertificated;
a security entitlement, a securities account, a commodity contract or a
commodity account, all as defined in the Illinois Uniform Commercial Code
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"LENDER" means PARAGON CORPORATE HOLDINGS INC., a Delaware corporation, whose
principal office is located at 0000 Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000.
"LOAN ACCOUNT" means an account maintained by Lender on its books, which will
evidence all Advances, accrued interest thereon, other amounts due Lender with
respect to such Advances, and all payments thereof by Borrower.
"MULTIEMPLOYER PLAN" means a plan described in ERISA that covers employees of
the Borrower, any Affiliate, or any ERISA Affiliate.
"OBLIGATIONS" means any obligations arising under this Agreement or the Master
Promissory Note (as defined in Section 2(a)(i), whether direct or indirect,
absolute or contingent, secured or unsecured, matured or unmatured, originally
contracted with Lender or another Person and now owing to or hereafter acquired
in any manner partially or totally by Lender or in which Lender may have
acquired a participation, contracted by Borrower alone or jointly or severally
with another Person.
"ORGANIZATION" means a corporation, government or government subdivision or
agency, business trust, estate, trust, limited liability company, partnership,
association, two or more Persons having a joint or common interest, and any
other legal or commercial entity.
"PBGC" means the Pension Benefit Guaranty Corporation established pursuant to
Title IV of ERISA.
"PERSON" means an individual or an Organization.
"PLAN" means any plan (other than a Multiemployer Plan) defined in ERISA in
which the Borrower or any Affiliate is, or has been at any time during the
preceding two (2) years, an "employer" or a "substantial employer" as such terms
are defined in ERISA.
"PROCEEDS" means (a) any proceeds, and (b) whatever is received upon the sale,
exchange, collection, or other disposition of Collateral or Proceeds, whether
cash or non-cash. Cash Proceeds includes, without limitation, moneys, checks,
and Deposit Accounts. Proceeds includes, without limitation, any Account arising
when the right to payment is earned under a Contract Right, any insurance
payable by reason of loss or damage to the Collateral, and any return or
unearned premium upon any cancellation of insurance. Except as expressly
authorized in this Agreement, Lender's right to Proceeds specifically set forth
herein or indicated in any financing statement shall never constitute an express
or implied authorization on the part of Lender to Borrower's sale, exchange,
collection, or other disposition of any or all of the Collateral.
"PROHIBITED TRANSACTION" means any prohibited transaction as that term is
defined for purposes of ERISA.
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"RELATED EXPENSES" means any and all costs, liabilities, and expenses
(including, without limitation, losses, damages, penalties, claims, actions,
reasonable attorney's fees, legal expenses, judgments, suits, and disbursements)
reasonably incurred by, imposed upon, or asserted against, Lender in any attempt
by Lender:
(a) to obtain, preserve, perfect, or enforce any security interest
evidenced by (i) this Agreement, or (ii) any other pledge agreement,
mortgage deed, hypothecation agreement, guaranty, security
agreement, assignment, or security instrument executed or given by
Borrower to or in favor of Lender;
(b) to obtain payment, performance, and observance of any and all of the
Obligations;
(c) to maintain, insure, audit, collect, preserve, repossess, and
dispose of any of the Collateral, including, without limitation,
costs and expenses for appraisals, assessments, and audits of
Borrower or the Collateral; or
(d) incidental or related to (a) through (c) above, including, without
limitation, interest thereupon from the date incurred, imposed, or
asserted until paid at the rate payable as set forth in Section 2 of
this Agreement, but in no event greater than the highest rate
permitted by law.
"REPORTABLE EVENT" means any reportable event as that term is defined for
purposes of ERISA.
"SUBORDINATED DEBT" means Indebtedness of a Person that is subordinated, in a
manner satisfactory to the Lender, to all indebtedness owing to the Lender.
"SUBSIDIARY" means any Person of which more than fifty percent (50%) of (i) the
voting stock entitling the holders thereof to elect a majority of the Board of
Directors, manager, or trustees thereof, or (ii) the interest in the capital or
profits of such Person, which at the time is owned or controlled, directly or
indirectly, by the Borrower or one or more other Affiliate.
"TERMINATION DATE" means March 31, 2000, or such earlier date on which the
commitment of the Lender to make Advances pursuant to Section 2(a) hereof shall
have been terminated pursuant to Section 9 of this Agreement.
The foregoing definitions shall be applicable to the singulars and plurals of
the foregoing defined terms.
2. STATEMENT OF TERMS
(a) (i) Lender will, subject to the terms and conditions of
this Agreement, up to and including the Termination
Date, make Advances to or for the account of Borrower
up to Two Million Dollars ($2,000,000) plus interest
and Related Expenses. The Borrower may not repay and
reborrow such maximum amount of credit. The Lender
shall debit to the Loan Account the amount of each
Advance made under this Agreement
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and all interest, other compensation, or other fees
payable on all Advances and shall credit to the Loan
Account each payment of (a) principal and interest on
account of each Advance and (b) other amounts payable
under this Agreement by the appropriate entries. The
Loan Account shall constitute prima facie evidence of
all Advances made by Lender pursuant to this
Agreement. In the event of any discrepancy between
the records of Lender and Borrower with regard to the
Loan Account, the records of Lender shall prevail
unless the Borrower notifies Lender of an error
within thirty (30) business days after having
discovered any such error or unless Borrower and
Lender mutually agree with regard to an appropriate
change in such records. The Lender's Advances
pursuant to this Section 2(a) shall be evidenced by a
properly executed master promissory note in the form
of Exhibit A ("Master Promissory Note") with all
blanks appropriately filled in.
(ii) As compensation for the Advances made by Lender,
Borrower undertakes and agrees to pay to Lender on
the first day of each calendar month interest, in
arrears, at a rate equal to ten percent (10%) per
annum, upon the actual daily balances in Borrower's
Loan Account during the preceding month (using a day
rate based upon a year of 360 days and charged for
actual number of days elapsed).
(iii) Notwithstanding the Lender's remedies as set forth in
Section 10 hereof, prior to maturity hereof, upon the
occurrence of any Event of Default under this
Agreement and until such Event of Default is cured by
Borrower, at Lender's option and upon written notice
to Borrower, the unpaid principal and accrued
interest evidenced by the Loan Account shall bear
interest at a rate per annum equal to 13% per annum.
(iv) Borrower shall repay to the Lender on September 30,
2000 the net balance in the Borrower's Loan Account.
3. SECURITY INTEREST IN COLLATERAL
In consideration of and as security for the full and complete payment,
performance, and observance of all Obligations, Borrower does hereby (a) grant
to Lender a security interest in the Collateral, whether now owned or hereafter
acquired or received by Borrower, and (b) collaterally assign to Lender all of
its right, title, and interest (including, without limitation, all rights to
payment) arising under or with respect to all of Borrower's Accounts Receivable,
whether now owned or hereafter acquired or received by Borrower, but not
including any duty, obligation, or liability of Borrower with respect thereto.
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4. WARRANTIES
Borrower represents and warrants to Lender (which representations and warranties
shall survive the execution of this Agreement and all Advances) that:
(a) Borrower is a duly organized and existing corporation
under the laws of the state of its incorporation and is duly
qualified and in good standing in every state in which the
conduct of its business requires it to be so qualified, except
where the failure to so qualify will not have a material
adverse affect on the Borrower or its business;
(b) The execution, delivery, and performance hereof are within
Borrower's corporate powers, have been duly authorized, and
are not in contravention of law or the terms of Borrower's
charter, by-laws, or regulations or of any indenture,
agreement, or undertaking to which Borrower is a party or by
which it is bound;
(c) This Agreement and the other documents executed pursuant
hereto have been duly executed and are valid and binding
obligations of Borrower fully enforceable in accordance with
their respective terms, subject to bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to
the rights of creditors generally and subject to the
availability of equitable remedies and the application of
equitable principles;
(d) Except for any security interest granted to or in favor of
Lender and those liens or security interests set forth on
Schedule 4(d) hereto ("Permitted Liens"), Borrower is, and as
to Collateral to be acquired after the date hereof will be,
the owner of the Collateral free from any claim, lien,
encumbrance, or security interest of any type, and Borrower
agrees that it will defend the Collateral against all claims
and demands of all Persons (other than holders of Permitted
Liens) at any time claiming the same or any interest therein;
(e) Borrower's Location and the office where Borrower keeps
all of its records pertaining to its Accounts and Contract
Rights is located at 000 Xxxxxxxx Xxxxx, Xx. Xxxxxxxx,
Xxxxxxxx 00000;
(f) Subject to any limitation stated herein or in connection
herewith, all information furnished to Lender concerning
Borrower or the Collateral is, or will be at the time such
information is furnished, accurate and correct in all material
respects and complete insofar as is necessary to give Lender
true and accurate knowledge of the subject matter;
(g) Borrower is the lawful owner of and has full and
unqualified right to transfer a security interest in all of
the Collateral to Lender. Such Collateral is not and will not,
so long as Borrower has any Obligations to Lender, be subject
to any adverse financing statement, encumbrance, claim, lien,
or security
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interest of any type except for those relating to Permitted
Liens and any granted to or in favor of Lender;
(h) Borrower has places of business or maintains its Inventory
and Equipment at the locations indicated on Schedule A.
5. COVENANTS
Borrower undertakes, covenants, and agrees that, until the full and complete
payment, performance, and observance of all Obligations, Borrower:
(a) shall promptly provide Lender with prior written notification
of:
(1) any change in any location where Borrower's Inventory
is maintained, and any new locations where Borrower's
Inventory is to be maintained,
(2) any change in the location of the office where
Borrower's records pertaining to its Accounts and
Contract Rights are kept,
(3) the location of any new places of business and the
changing or closing of any of its existing places of
business,
(4) any change in Borrower's name, and
(5) any change in Borrower's Location;
(b) shall promptly notify, and shall cause each Affiliate to
promptly notify, the Lender in writing of (a) any future event
which, if it had existed on the date of this Agreement, would
have required qualification of the representations and
warranties set forth in Article 4 hereof and (b) any material
adverse change in the condition, business, or prospects,
financial or otherwise, of the Borrower or such Affiliate;
(c) shall promptly furnish to Lender upon request (1) additional
statements and information with respect to the Collateral, and
all writings and information relating to or evidencing any of
Borrower's Accounts Receivable (including, without limitation,
computer printouts or typewritten reports listing the mailing
addresses of all present Account Debtors), and (2) any other
writings and information as Lender may reasonably request;
(d) shall upon request of Lender promptly take such action and
promptly make, execute, and deliver all such additional and
further items, deeds, assurances, and instruments as Lender
may reasonably require, including, without limitation,
financing statements, so as to completely vest in and ensure
to Lender its rights hereunder and in or to the Collateral. If
certificates of title are issued or outstanding with respect
to any of Borrower's Inventory, Borrower will cause the
interest of Lender to be properly noted thereon at Borrower's
expense;
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(e) hereby authorizes Lender or Lender's designated agent (but
without obligation by Lender to do so) to incur Related
Expenses (whether prior to, upon, or subsequent to any Event
of Default), and Borrower shall promptly repay, reimburse, and
indemnify Lender for any and all Related Expenses. Lender may,
at its option, debit Related Expenses directly to the Loan
Account;
(f) shall not, without the prior written consent of Lender, (1)
merge, acquire or consolidate with or into, or enter into any
merger agreement with any other Person, or (2) lease, sell, or
transfer all or substantially all its property, assets, and
business, including the stock of any Subsidiary, to any other
Person or (3) allow a "change of control"; provided, however,
this Section 5(f) shall not prohibit any transaction with
Lenders or any of its affiliates or with any Person who
satisfies in full all of Borrower's Obligations under this
Agreement and the Master Promissory Note or acquires the same
from Lender;
(g) shall not, without the prior written consent of Lender, make
any change in any location where Borrower's Inventory or
Equipment is maintained or any change in the location of the
office where Borrower's records pertaining to its Accounts and
Contract Rights are kept;
(h) shall not, and will not permit any Affiliate to, make any
payment upon its outstanding Subordinated Debt, except in such
manner and amounts as may be expressly authorized in any
subordination agreement presently or hereafter held by the
Lender.
6. COLLECTIONS AND RECEIPT OF PROCEEDS BY BORROWER
(a) Prior to exercise by Lender of its rights under
Section 7 of this Agreement, and except as provided in
Subsection 6(b) of this Agreement, both (1) the lawful
collection and enforcement of all of Borrower's Accounts
Receivable, and (2) the lawful receipt and retention by
Borrower of all Proceeds of all of Borrower's Accounts
Receivable and Inventory shall be as Lender's agent.
Subsequent to payment in full of the Foothill Obligations, all
such lawful collections of Borrower's Accounts Receivable and
such Proceeds of Borrower's Accounts Receivable and Inventory
shall be remitted daily by Borrower to the Cash Collateral
Account with American National or Bankers Trust for the
benefit of Lender in the form in which they are received by
Borrower, either by mailing or by delivering such collections
and Proceeds to American National or Bankers Trust,
appropriately endorsed for deposit in the Cash Collateral
Account. Borrower will not commingle such collections or
Proceeds with any of Borrower's other funds or property, but
will hold such collections and Proceeds separate and apart
therefrom upon an express trust for Lender as its interest may
appear. Lender may, in its sole discretion, at any time and
from time to time, subsequent to payment in full of the
Foothill Obligations, apply all or any portion of the account
balance in the Cash Collateral Account (allowing
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two (2) days for collection and clearance of remittances,
however, in the event Lender applies any proceeds from the
Cash Collateral Account as a credit to any obligations due
Lender and such payment includes uncollected funds, Borrower
will incur a charge for those uncollected funds at the rate
payable for Advances) as a credit against (1) the Loan
Account, including the outstanding principal or interest of
any Advance, or (2) any other Obligation, subsequent to
payment in full of the Foothill Obligations. Borrower hereby
irrevocably authorizes American National and Bankers Trust, at
Lender's direction and in its sole discretion, at any time and
from time to time, to release funds from the Cash Collateral
Account to Borrower for use in Borrower's business. The
balance in the Cash Collateral Account may be withdrawn by
Borrower upon termination of this Agreement in accordance with
Subsection 12(e) of this Agreement. Subsequent to payment in
full of the Foothill Obligations, at Lender's request,
Borrower will cause all remittances representing collections
and Proceeds of Collateral to be mailed to a lock box in
Cleveland, Ohio, designated by Lender to which Lender shall
have access;
(b) Subsequent to payment in full of the Foothill Obligations, with respect
to Borrower's Instruments, Chattel Paper, and Documents:
(1) Borrower shall daily deliver, or cause to be
delivered, to Lender all of Borrower's Instruments,
Chattel Paper, and Documents, appropriately endorsed
either, at Lender's option, (i) to Lender's order,
without limitation or qualification, or (ii) for
deposit in the Cash Collateral Account. Lender, or
Lender's designated agent, is hereby constituted and
appointed Borrower's attorney-in-fact with authority
and power to endorse any and all Instruments,
Documents, and Chattel Paper upon Borrower's failure
to do so. Such authority and power, being coupled
with an interest, shall be (i) irrevocable until all
Obligations are paid, performed, and observed in
full, (ii) exercisable by Lender at any time and
without any request upon Borrower by Lender to so
endorse, and (iii) exercisable in Lender's name or
Borrower's name;
(2) Borrower hereby waives presentment, demand, notice of
dishonor, protest, notice of protest, and any and all
other similar notices with respect thereto,
regardless of the form of any endorsement thereof;
(3) Lender shall not be bound or obligated to take any
action to preserve any rights therein against prior
parties thereto.
7. COLLECTIONS AND RECEIPT OF PROCEEDS BY LENDER
Subsequent to payment in full of the Foothill Obligations, Borrower hereby
constitutes and appoints Lender, or Lender's designated agent, as Borrower's
attorney-in-fact to exercise, at any time, all or any of the following powers
which, being coupled with an interest, shall be
12
irrevocable until the complete and full payment, performance, and observance
of all Obligations:
(a) to receive, retain, acquire, take, endorse, assign, deliver,
accept, and deposit, in the Lender's name or Borrower's name,
any and all of Borrower's cash, Instruments, Chattel Paper,
Documents, Proceeds of Accounts Receivable, Proceeds of
Inventory, collection of Accounts Receivable, and any other
writings relating to any of the Collateral;
(b) to transmit to Account Debtors, on any or all of Borrower's
Accounts Receivable, notice of assignment to Lender thereof
and Lender's security interest therein and to request from
such Persons at any time, in the Lender's name or in the
Borrower's name, information concerning Borrower's Accounts
Receivable and the amounts owing thereon;
(c) to transmit to purchasers of any or all of Borrower's
Inventory, notice of Lender's security interest therein, and
to request from such Persons at any time, in Lender's name or
in Borrower's name, information concerning Borrower's
Inventory and the amounts owing thereon by such purchasers;
(d) to notify and require Account Debtors on Borrower's Accounts
Receivable and purchasers of Borrower's Inventory to make
payment of their indebtedness directly to Lender following an
Event of Default;
(e) to take or bring, in Lender's name or Borrower's name, all
steps, actions, suits, or proceedings deemed by Lender
necessary or desirable to effect the receipt, enforcement, and
collection of the Collateral;
(f) to accept all collections in any form relating to the
Collateral, including remittances which may reflect
deductions, and to deposit the same, into Borrower's Cash
Collateral Account or, at the option of Lender, to apply them
as a payment against the Loan Account.
8. INSURANCE AND USE OF INVENTORY AND EQUIPMENT
(a) Until any Event of Default:
(1) Borrower may retain possession of and use its
Inventory and Equipment in any lawful manner not
inconsistent with this Agreement or with the terms,
conditions, or provisions of any policy of insurance
thereon.
(2) Borrower may sell or lease its Inventory or Equipment
in the ordinary course of business; provided,
however, that a sale or lease in the ordinary course
of business does not include a transfer in partial or
total satisfaction of a debt, except for transfers in
satisfaction of partial or total purchase money
prepayments by a buyer in the ordinary course of
13
Borrower's business. Until Lender's exercise of
enforcement rights with respect to such collateral
following and during the continuation of any Event of
Default, Borrower may also use and consume any raw
materials or supplies, the use and consumption of
which are necessary in order to carry on Borrower's
business.
(b) Borrower shall obtain, and at all times maintain, insurance
upon its Inventory and Equipment in such form, written by such
companies, in such amounts, for such period, and against such
risks as may be acceptable to Lender, with provisions
satisfactory to Lender for payment of all losses thereunder to
Lender and Borrower as their interests may appear (loss
payable endorsement in favor of Lender), and, if required by
Lender, Borrower will deposit the policies with Lender. Any
such policies of insurance shall provide for no less than ten
(10) days' prior written cancellation notice to Lender.
Subsequent to payment in full of the Foothill Obligations, any
sums received by Lender in payment of insurance losses,
returns, or unearned premiums under the policies may, at the
option of Lender, be applied upon any Obligation whether or
not the same is then due and payable, or may be delivered to
Borrower for the purpose of replacing, repairing, or restoring
its Inventory and Equipment. Borrower hereby assigns to Lender
any return or unearned premium which may be due upon
cancellation of any such policies for any reason and,
subsequent to payment in full of the Foothill Obligations,
directs the insurers to pay Lender any amount so due.
Subsequent to payment in full of the Foothill Obligations,
Lender or Lender's designated agent is hereby constituted and
appointed Borrower's attorney-in-fact to (either in the name
of Borrower or in the name of the Lender), make adjustments of
all insurance losses, sign all applications, receipts,
releases, and other papers necessary for the collection of any
such loss, and any return or unearned premium, execute proof
of loss, make settlements, and endorse and collect all
Instruments payable to Borrower or issued in connection
therewith. Notwithstanding any action by Lender hereunder, any
and all risk of loss or damage to Borrower's Inventory and
Equipment to the extent of any and all deficiencies in the
effective insurance coverage thereof is hereby expressly
assumed by Borrower.
9. EVENTS OF DEFAULT
The occurrence of any one or more of the following shall constitute an Event of
Default under this Agreement:
(a) Failure of Borrower to promptly pay, perform, or observe on or
prior to the third day after the due date thereof when due,
whether upon demand, at maturity, by acceleration, or
otherwise, any of the Obligations;
(b) Failure of Borrower to promptly pay, perform, or observe when
due, whether upon demand, at maturity, by acceleration, or
otherwise, or any event which
14
either results in the acceleration of the maturity of, any
material indebtedness, obligations, liabilities, contracts,
indentures, and agreements (including, without limitation, any
and all warranties, covenants, guaranties, provisions, terms,
and conditions set forth or contained therein) of whatever
kind and however evidenced, owed, incurred, or executed by
Borrower, to, in favor of, or with any and all other Persons,
and including any partial or total extension, renewal,
amendment, restatement, and substitution thereof or therefor;
(c) Any warranty, representation, or statement made or furnished
to Lender in connection with this Agreement or any other
writing evidencing or given as security for any of the
Obligations by or on behalf of the Borrower proves to have
been false in any material respect when made, furnished, or at
any time thereafter;
(d) Any "change of control" of Borrower, meaning any transaction
or series of transactions which result in any Person (other
than Lender or the existing shareholders of Borrower)
acquiring an ownership interest (beneficial or otherwise) of
twenty percent (20%) or more of the issued and outstanding
shares of Borrower;
(e) Financial Impairment of Borrower;
If there shall occur any Event of Default set forth in (a) through (d) above,
Lender, by written notice to Borrower, may (1) declare the unpaid principal of
and accrued interest on all Obligations to be immediately due and payable and
(2) immediately terminate Lender's commitment to make further Advances under the
Agreement, whereupon all Obligations shall become and be forthwith due and
payable, and such commitment shall be terminated, without any further notice,
presentment, or demand of any kind, all of which are hereby expressly waived by
Borrower. If there shall occur any Event of Default set forth (e) above, all
Obligations shall automatically become and be immediately due and payable, and
Lender's commitment to make further advances shall automatically be terminated,
without notice, presentment, or demand of any kind, all of which are hereby
expressly waived by Borrower.
10. RIGHTS AND REMEDIES UPON EVENT OF DEFAULT
Upon the occurrence of any such Event of Default and at all times thereafter,
Lender shall have the rights and remedies of a secured party under the Illinois
Uniform Commercial Code in addition to the rights and remedies of a secured
party provided elsewhere within this Agreement or in any other writing executed
by Borrower. Lender may require Borrower to assemble the Collateral and make it
available to Lender at a reasonably convenient place to be designated by Lender.
Unless the Collateral is perishable, threatens to decline speedily in value, or
is of a type customarily sold on a recognized market, Lender will give Borrower
reasonable notice of the time and place of any public sale of the Collateral or
of the time after which any private sale or other intended disposition thereof
is to be made. The requirement of reasonable notice shall be met if such notice
is mailed (deposited for delivery, postage prepaid,
15
by U.S. mail) to either, at Lender's option (1) Borrower's Location set forth in
Subsection 12(c) of this Agreement (as modified by any change therein which
Borrower has supplied in writing to Lender), or (2) Borrower's address at which
Lender customarily communicates with Borrower, at least ten (10) business days
before the time of the public sale or the time after which any private sale or
other intended disposition thereof is to be made. At any such public or private
sale, Lender may purchase the Collateral. After deduction for Lender's Related
Expenses, the residue of any such sale or other disposition shall be applied in
satisfaction of the Obligations in such order of preference as Lender may
determine. Any excess, to the extent permitted by law, shall be paid to
Borrower, and Borrower shall remain liable for any deficiency.
In addition, upon the occurrence of any such Event of Default and at any time
thereafter, Lender shall have the right to obtain new appraisals of Borrower or
the Collateral, the cost of which shall be reimbursed by Borrower.
11. CONDITIONS PRECEDENT TO FUTURE ADVANCES
The obligation of Lender to make any Advance to Borrower shall be subject to the
conditions precedent that on or before the date of such Advance:
(a) Borrower shall reimburse all fees, costs, expenses, and taxes
then payable by Borrower and due the Lender;
(b) The representations and warranties contained in Section 4 of
this Agreement and in each document, instrument, agreement,
and certificate delivered to Lender by Borrower pursuant to
this Agreement shall be true and correct on and as of such
date as if made on and as of such date in all material
respects; no Event of Default or event or condition that, with
the serving of notice or the lapse of time or both, would
constitute an Event of Default shall have occurred and be
continuing or would result from the making of such Advance;
and Lender shall have received, if requested by Lender, a
certificate of the chief executive officer or the chief
financial officer of Borrower, dated as of the date of such
Advance, to such effect (in the absence of Lender's request
for such a certificate, Borrower's borrowing of the Advance
shall itself constitute a representation to Lender to such
effect);
(c) The making of such Advance shall not contravene any law, rule
or regulation applicable to Borrower or Lender;
(d) Not later than 2:00 p.m., Cleveland time, two Business days
prior to the date of the requested Advance, Lender shall have
received, in writing or by telephone to be promptly confirmed
in writing, a request by Borrower to Lender for an Advance in
the requested amount, and a Borrower's Certificate;
16
(f) With respect to the initial advance hereunder, Lender shall
have received such other approvals, opinions, appraisals, or
documents as it may reasonably request from time to time, all
in form and substance acceptable to Lender in its sole
discretion, including, without limitation, the following:
(i) Such Uniform Commercial Code Financing Statements as
Lender may require in order to give record notice of
its security interest in the items listed as
Collateral;
(ii) Certified corporate resolutions of Borrower, and
certificate(s) of good standing for Borrower from the
state of its incorporation and such other states as
Lender shall require, together with a certified copy
of the Articles of Incorporation and Code of
Regulations of Borrower;
(iii) UCC lien searches from such recording officers as
Lender shall specify, evidencing the priority of
Lender's lien(s) over any other liens or
encumbrances;
(iv) Certificate evidencing the existence of insurance
coverage required under this Agreement, together with
loss payable endorsements thereto naming Lender as a
loss payee and additional insured in form and
substance satisfactory to Lender as its interest may
appear;
(v) Such landlord waivers, mortgagee waivers and
subordination statements as Lender may require from
any landlords, mortgagees or creditors of Borrower
who have or may claim any lien upon or security
interest in any of the Collateral;
(vi) Complete and accurate copies of any instrument or
document evidencing Subordinated Debt; provided,
however, Lender may require that the Subordinated
Note be delivered to Lender;
12. GENERAL
(a) If any provision, term, or portion, of this Agreement,
(including, without limitation, (1) any indebtedness,
obligation, liability, contract, agreement, indenture,
warranty, covenant, guaranty, representation, or condition of
this
17
Agreement made, assumed, or entered into, (2) any act of
action taken under this Agreement, or (3) any application of
this Agreement) is for any reason held to be illegal or
invalid, such illegality or invalidity shall not affect any
other such provision, term, or portion of this Agreement, each
of which shall be construed and enforced as if such illegal or
invalid provision, term, or portion were not contained in this
Agreement. Any illegality or invalidity of any application of
this Agreement shall not affect any legal and valid
application of this Agreement, and each provision, term, and
portion of this Agreement shall be deemed to be effective,
operative, made, entered into, or taken in the manner and to
the full extent permitted by law.
(b) Lender shall not be deemed to have waived any of Lender's
rights of this Agreement or under any other agreement,
instrument, or document executed by Borrower, unless such
waiver is in writing and signed by Lender. No delay or
omission on part of Lender in exercising any right shall
operate as a waiver of such right or any other right. A waiver
on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. All
Lender's rights and remedies, whether evidenced by this
Agreement or by any other agreement, instrument, or document
shall be cumulative and may be exercised singularly or
concurrently. Any written demands, written requests, or
written notices to Borrower that Lender may elect to give
shall be effective when deposited for delivery, postage
prepaid, by U.S. mail, and addressed either, at Lender's
option, to (1) Borrower's Location set forth in Subsection
12(c) of this Agreement (as modified by any change therein
which Borrower has supplied in writing to Lender) or, (2)
Borrower's address at which Lender customarily communicates
with Borrower. If at any time or times, by assignment or
otherwise, Lender transfers any of the Obligations or any part
of the Collateral to another person, such transfer shall carry
with it Lender's powers and rights under this Agreement with
respect to the Obligation or Collateral so transferred and the
transferee shall have said powers and rights, whether or not
they are specifically referred to in the transfer. To the
extent that Lender retains any other of the Obligations or any
part of the Collateral, Lender will continue to have the
rights and powers with respect to the Obligations and the
Collateral as set forth in this Agreement. However, Lender may
not delegate its unfunded commitment without Borrower's
consent.
(c) All written notices, requests, or other communications herein
provided for must be addressed:
to Lender as follows:
Paragon Corporate Holdings Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Chairman
18
with copies to:
Xxxxx X. Xxxxxx, Esq.
Squire, Xxxxxxx & Xxxxxxx L.L.P.
0000 Xxx Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to the Borrower to:
Multigraphics Inc.
000 Xxxxxxxx Xxxxx
Xx. Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
with copies to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address as either party may designate to the
other in writing. Such communication will be effective (i) if
by telex, when such telex is transmitted and the appropriate
answer back is received, (ii) if given by mail, seventy-two
(72) hours after such communication is deposited in the U.S.
mail certified mail return receipt requested, or (iii) if
given by other means, when delivered at the address specified
in this Section 12(c).
(d) The laws of the State of Illinois shall govern the
construction of this Agreement (including, without limitation,
any terms not specifically defined in this Agreement that may
be so specifically defined in the Illinois Uniform Commercial
Code, and including any amendments thereof or any substitution
therefor) and the rights and duties of Borrower and Lender.
This agreement shall be binding upon and inure to the benefit
of Borrower and Lender and their respective successors and
assigns.
19
(e) Borrower may terminate this Agreement by giving Lender not
less than ten (10) days prior written notice of termination
and by paying, performing, and observing in full all
Obligations. Notwithstanding the termination of the line of
credit hereunder, this Agreement and the security interest in
the Collateral shall continue in full force and effect after
such termination until all Obligations of Borrower to Lender
have been paid, performed, and observed in full.
(f) In this Agreement unless the context otherwise requires, words
in the singular number include the plural, and in the plural
number include the singular.
(g) Borrower hereby releases Lender from and agrees to indemnify
and hold harmless Lender, and its officers, agents, and
employees for any and all claims of Borrower or any other
Person for damage or loss caused by any act or acts under this
Agreement or in furtherance of this Agreement whether by
omission or commission, and whether based upon any error of
judgment or mistake of law or fact (except gross negligence or
willful misconduct) on the part of Lender, or its officers,
agents, and employees.
(h) Subsequent to payment in full of the Foothill Obligations,
Lender has the right, in addition to all other rights and
remedies available to it, to set off at any time the unpaid
balance of the Loan Account and any other Obligations against
any indebtedness or obligations owing Borrower by Lender
including, without limitation, all Cash Security.
(i) This Agreement is assignable by Lender upon notice to Borrower
and shall be binding on Lender's respective successors,
assigns, and nominees; provided, however, Lender may not
delegate its commitments hereunder without Borrower consent.
(j) This Agreement and any promissory notes or other writing
executed and delivered by any Person to Lender in connection
herewith integrate all the terms and conditions mentioned
herein or incidental hereto and supersede all oral
representations and negotiations and prior writings with
respect to the subject matter hereof.
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13. JURY TRIAL WAIVER
BORROWER AND LENDER EACH WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN LENDER AND
BORROWER ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO ANY
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR THE
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO. THIS WAIVER SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY LENDER'S ABILITY TO PURSUE
REMEDIES PURSUANT TO ANY CONFESSION OF JUDGMENT OR COGNOVIT PROVISION CONTAINED
IN ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT BETWEEN LENDER AND
BORROWER.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
BORROWER: MULTIGRAPHICS, INC.
By: /s/ Xxxx X. Xxxxxxxx
---------------------
Title: President & CEO
LENDER: PARAGON CORPORATE HOLDINGS INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Title: Vice President
and CFO
21
EXHIBIT A
MASTER PROMISSORY NOTE
$2,000,000.00 September 29, 1999
On September 30, 2000, the undersigned (herein called "Borrower") promises to
pay to the order of PARAGON CORPORATE HOLDINGS INC., Niles, Illinois (herein
called "Lender"), the sum of Two Million Dollars ($2,000,000) or such lesser
amount of Advances as shall have actually been borrowed by Borrower from Lender
and not previously repaid, pursuant to the terms of a certain "Credit Facility
and Security Agreement" by and between Borrower and Lender dated September 29,
1999, including any partial or total extension, restatement, renewal, amendment,
and substitution thereof or therefor (herein called "Agreement") with interest
payable monthly in arrears on the first day of each month, starting on the first
day of the month following the month in which this Note is signed, according to
the provisions set forth in Section 2(a) of the Agreement.
Borrower has collaterally assigned to Lender all of Borrower's "Accounts
Receivable" and has granted to Lender a security interest in all of Borrower's
"Accounts Receivable", "Inventory", "Equipment", "Cash Security", funds on
deposit in the "Cash Collateral Account", certain other assets, and all
"Proceeds", products, profits, and rents thereof, as security for the payment of
this Note and all other "Obligations", as those terms are defined in Section 1
of the Agreement (all herein called "Obligations").
Upon the occurrence of any one or more "Events of Default", any and all
Obligations shall, at the option of Lender, immediately become due and payable
without demand, presentment, protest, or notice of any kind, all as provided in
the Agreement.
Borrower expressly waives presentment, demand, notice, protest, and all other
demands and notices in connection with the delivery, acceptance, performance,
default or enforcement of this Note, assent to any extension or postponement of
the time of payment or any other indulgence, to any substitution, exchange or
release of collateral, and to the addition or release of any other person
primarily or secondarily liable. Borrower understands and agrees that this Note
is subject to and shall be construed according to the laws of the State of
Illinois.
Reference is made to the Agreement for certain provisions concerning rights of
Lender and its successors and assigns with respect to this Note, and related
matters. This Note is the "Master Promissory Note" referred to in the Agreement.
Borrower acknowledges that this Note was signed in Xxxx County, Illinois.
22
THE OBLIGATIONS HEREUNDER AND THE RIGHTS AND REMEDIES EVIDENCED HEREBY ARE
SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN
SUBORDINATION AGREEMENT (THE "SUBORDINATION AGREEMENT") DATED AS OF EVEN DATE
HEREWITH BETWEEN LENDER AND FOOTHILL CAPITAL CORPORATION ("FOOTHILL"), TO THE
INDEBTEDNESS (INCLUDING INTEREST) OWED BY BORROWER TO FOOTHILL PURSUANT TO THAT
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT DATED AS OF FEBRUARY 19, 1998,
BY AND AMONG BORROWER, PUBLISHING SOLUTIONS INC. AND FOOTHILL, AS AMENDED; AND
EACH SUCCESSOR TO THE OBLIGATIONS AND RIGHTS OF LENDER HEREUNDER SHALL BE BOUND
BY THE PROVISIONS OF THE SUBORDINATION AGREEMENT.
MULTIGRAPHICS, INC.
By: _________________________
Title:
23
