EXHIBIT 10-5
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT dated March 8, 1996, between ARTISTIC
GREETINGS INCORPORATED, a Delaware corporation (the "Borrower") and MARINE
MIDLAND BANK, a New York banking corporation, (the "Bank"). The parties
hereto hereby agree as follows:
RECITALS
1. The Borrower is in default under a $3,500,000 Term Loan Agreement
and a Security Agreement, both dated March 31, 1995 with The Chase
Manhattan Bank (the "Chase Loan Documents").
2. The Bank has made available to the Borrower a discretionary line of
credit (the "Existing Line") in the maximum principal amount of $6,500,000
pursuant to a letter agreement dated April 26, 1991, on which there was an
outstanding principal balance of $3,642,000 as of the close of business on
February 28, 1996.
3. The Borrower is in default under the Existing Line and under
certain other loan documents between the Bank and the Borrower, by reason
of its failure to achieve certain financial covenants and by reason of its
default under the Chase Loan Documents.
4. The Borrower has requested a waiver of the foregoing defaults and
the Bank has agreed to such a waiver upon the terms and conditions set
forth below.
5. The Bank and the Borrower have agreed to terminate the Existing
Line and refinance the amounts outstanding thereunder, pursuant to the
terms and conditions set forth herein, to be effective as of the date of
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and in consideration
of the Bank's willingness to extend credit to the Borrower, the Bank and
the Borrower agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings (terms defined in the singular to have
the same meaning when used in the plural and vice versa):
"ACCOUNTS" means "accounts" as defined in the Uniform Commercial Code
as enacted in the State of New York.
"ADDITIONAL LETTERS OF CREDIT" shall have the meaning assigned to such
term in section 2.2.
"AFFILIATE" means any Person (1) which directly or indirectly controls,
or is controlled by, or is under common control with the Borrower or a
Subsidiary; (2) which directly or indirectly beneficially owns or holds ten
percent (10%) or more of any class of voting stock of the Borrower or any
Subsidiary; or (3) ten percent (10%) or more of the voting stock of which
is directly or indirectly beneficially owned or held by the Borrower or a
Subsidiary. The term control means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities,
by contract, or otherwise.
"AGREEMENT" means this Revolving Credit Agreement, as amended,
supplemented, or modified from time to time.
"BORROWING BASE" has the meaning assigned to such term in section 2.1.
"BUSINESS DAY" means any day other than a Saturday, Sunday, or other
day on which commercial banks in Elmira or Rochester, New York are
authorized or required to close under the laws of the State of New York.
"CAPITAL LEASE" means all leases which have been or should be
capitalized on the books of the lessee in accordance with GAAP.
"CHASE" means The Chase Manhattan Bank, N.A.
"CHASE LOAN DOCUMENTS" has the meaning given to such term in the
Recitals.
"COLLATERAL" means all property which is subject to the Lien granted by
the Security Agreement and/or the Existing Loan Documents.
"COMMITMENT" means the Bank's obligation to make loans to the Borrower
pursuant to section 2.1 in the amount not to exceed the lesser of
$6,500,000.00 or the Borrowing Base.
"CUSTOMER LIST" means all written and computer records, data and
software identifying by name, address and other identifying information all
of the Borrower's customers with respect to all of its lines of business,
and in addition, for the customers of its check printing business all
software, technology or processes necessary or helpful in the production of
additional checks for each customer.
"DEFAULT" means any of the events specified in section 8.1, whether or
not any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"DISPOSAL" means the intentional or unintentional abandonment,
discharge, deposit, injection, dumping, spilling, leaking, storing,
burning, thermal destruction or placing of any substance so that it or its
constituents may enter the environment.
"ELIGIBLE ACCOUNTS" means Accounts which are not Ineligible Accounts.
"ENVIRONMENT" means any water including but not limited to surface
water and ground water or water vapor, any land including land surface or
subsurface, stream sediments, air, fish, wildlife, plants and all other
natural resources or environmental media.
"ENVIRONMENTAL LAWS" means all federal, state and local environmental,
land use, zoning, health, chemical use, safety and sanitation laws,
statutes, ordinances, regulations, codes and rules relating to the
protection of the Environment and/or governing the use, storage, treatment,
generation, transportation, processing, handling, production or disposal of
Hazardous Substances and the regulations, rules, ordinances, bylaws,
policies, guidelines, procedures, interpretations, decisions, orders and
directives of federal, state and local governmental agencies and
authorities with respect thereto.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations and published
interpretations thereof.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) which together with the Borrower would be treated as a single
employer under section 4001 of ERISA.
"EVENT OF DEFAULT" means any of the events specified in section 8.1,
provided that any requirement for the giving of notice, the lapse of time,
or both, or any other condition, has been satisfied.
"EXISTING LETTERS OF CREDIT" means the letters of credit issued by the
Bank for the account of the Borrower which were outstanding as of January
31, 1996 and any extensions and renewals thereof.
"EXISTING LINE" has the meaning assigned to such term in the Recitals.
"EXISTING LOAN DOCUMENTS" has the meaning assigned to such term in
Section 4.14.
"GAAP" means generally accepted accounting principles in the United
States.
"HAZARDOUS SUBSTANCE" means, without limitation, any explosives, radon,
radioactive materials, asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyls, petroleum and petroleum products, methane,
hazardous materials, hazardous wastes, hazardous or toxic substances and
any other material defined as a hazardous substance in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. 9601, ET SEQ.; the Hazardous Materials Transportation
Act, as amended, 49 U.S.C. 1801, ET SEQ.; the Resource
Conservation and Recovery Act, 42 U.S.C. 6901, ET SEQ.; Articles
15 and 27 of the Environmental Conservation Law of the State of New York;
any so-called "Superfund" or "Superlien" law; or any other federal, state
or local law, regulation, rule, ordinance, bylaw, policy, guideline,
procedure, interpretation, decision, order or directive, whether existing
as of the date hereof, previously enforced or subsequently enacted.
"INELIGIBLE ACCOUNTS" means the aggregate amount of the following
described Accounts, such aggregate amount to be computed as of the last
Business Day of the immediately preceding month:
(1) Any Account which has remained unpaid for more than ninety (90)
days after the original invoice date or, in the case of Accounts related to
the use of customer lists or package insert programs, for more than ninety
(90) days after the completion of mailing or the completion of such package
insert program.
(2) Any Account with respect to which a representation or warranty
contained in the Security Agreement was not, or does not continue to be,
true and accurate, including, without limitation, any Account subject to a
setoff.
(3) In the discretion of the Bank, any Account of an Account Debtor
if at any time a check, promissory note, draft, trade acceptance, or other
instrument for the payment of money has been received, presented for
payment, and returned uncollected for any reason with respect to 10% of the
aggregate dollar amount of outstanding Accounts owed at the time of such
non-payment by the Account Debtor to the Borrower.
(4) Any Account on which the Borrower has extended the time for
payment beyond the longer of thirty (30) days after the original due date,
or ninety (90) days after the original invoice date (or, in the case of
Accounts related to the use of customer lists or package insert programs,
ninety (90) days after the completion of mailing or the completion of such
package insert program) without the consent of Bank.
(5) Any Account as to which any one or more of the following events
occurs respecting an Account Debtor: death or judicial declaration of
incompetency; the filing by or against any Account Debtor of a request or
petition for liquidation, reorganization, arrangement, adjustment of debts,
adjudication as a bankrupt, or other relief under the bankruptcy,
insolvency, or similar laws of the United States, any state or territory
thereof, or any foreign jurisdiction, now or hereafter in effect; the
making of any general assignment by any Account Debtor for the benefit of
creditors; the appointment of a receiver or trustee for any Account Debtor
or for any of the assets of an Account Debtor, including, without
limitation, the appointment of or taking possession by a "custodian," as
defined in the Federal Bankruptcy Code; the institution by or against any
Account Debtor of any other type of insolvency proceeding (under the
bankruptcy laws of the United States or otherwise) or of any formal or
informal proceeding for the dissolution or liquidation of, settlement of
claims against, or winding up of affairs of, any Account Debtor; the sale,
assignment, or transfer of all or any material part of the assets of any
Account Debtor; the general nonpayment by any Account Debtor of debts as
they become due (other than an Account); or the cessation of the business
of any Account Debtor as a going concern.
(6) All Accounts owed by an Account Debtor, if at any time 10% of
the aggregate dollar amount of outstanding Accounts owed by such Account
Debtor to the Borrower is classified as ineligible under any criterion set
forth in (1), (3), (4) or (5) above, or (9) below.
(7) All Accounts owed by Account Debtors which do not maintain
their chief executive offices in the United States, or which are not
organized under the laws of the United States or any State, unless the Bank
shall, in its sole discretion as evidenced by written notification to the
Borrower, deems such Accounts to be credit-worthy.
(8) All Accounts of an Account Debtor, if the Borrower, or any
Person who, directly or indirectly controls the Borrower, either owns in
whole or material part, or directly or indirectly controls, such Account
Debtor.
(9) Any Account, if either the perfection, enforceability, or
validity of the Bank's security interest in such Account, or the Bank's
right or ability to obtain direct payment to the Bank of the Proceeds of
such Account, is governed by any federal or state statutory requirements
other than those of the Uniform Commercial Code, including, without
limitation, any Account subject to the Federal Assignment of Claims Act of
1940, as amended.
(10)Any Account, which in the discretion of the Bank is not
satisfactory to the Bank for credit reasons (determined in accordance with
customary credit policies of the Bank).
"INTEREST PERIOD" means the period commencing on the date a Fixed Rate
is selected by the Borrower and ending on the sixth day thereafter,
provided that:
(1) No Interest Period may extend beyond the Termination Date; and
(2) If an Interest Period would end on a day that is not a Business
Day, such Interest Period shall be extended to the next Business Day.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority, or other security agreement
or preferential arrangement, charge, or encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, and the filing of any
financing statement under the Uniform Commercial Code or comparable law of
any jurisdiction to evidence any of the foregoing).
"LOAN DOCUMENTS" means this Agreement, the Note, and the Security
Agreement.
"MATERIAL ADVERSE EFFECT" shall have the meaning assigned to such term
in section 4.1.
"MONEY MARKET RATE" means the rate per annum quoted by the Bank to
Artistic on the first day of any applicable Interest Period (which rate
will be what the Bank then estimates is its cost of acquiring funds for a
period comparable to the Interest Period and in an amount comparable to the
principal amount of the Quoted Rate Loans).
"MULTIEMPLOYER PLAN" means a Plan described in section 4001(a)(3) of
ERISA which covers employees of the Borrower or any ERISA Affiliate.
"NOTE" shall have the meaning assigned to such term in section 2.6.
"ORDERLY LIQUIDATION VALUE" means, with respect to any asset of the
Borrower, the amount of net proceeds which could be expected upon a sale by
a willing and informed seller to a willing and informed buyer, both
exercising prudent judgment and not acting with undue haste, but with the
seller under compulsion to sell within a liquidation period not to exceed
120 days.
"PAYMENT OFFICE" means the place of business of the Bank at 000 Xxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" means an individual, partnership, limited liability company,
corporation, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority, or other entity of
whatever nature.
"PLAN" means any employee benefit or other plan established,
maintained, or to which contributions have been made by the Borrower or any
ERISA Affiliate.
"PRIME RATE LOANS" means those Revolving Credit Loan for which the
interest thereon is determined by reference to the Prime Rate.
"PRIME RATE" means the rate of interest publicly announced by the Bank
from time to time as its prime rate and is a base rate for calculating
interest on certain loans.
"PROHIBITED TRANSACTION" means any transaction set forth in section 406
of ERISA or section 4975 of the Internal Revenue Code of 1954, as amended
from time to time.
"PROPERTY" means all real property owned, occupied or operated by the
Borrower or its Subsidiaries.
"QUOTED RATE LOANS" means those Revolving Credit Loans for which the
interest rate thereon is determined by reference to the Money Market Rate.
"REPORTABLE EVENT" means any of the events set forth in section 4043 of
ERISA.
"REVOLVING CREDIT LOAN(S)" shall have the meaning assigned to such term
in section 2.1.
"SECURITY AGREEMENT" means the Security Agreement in substantially the
form of Exhibit A, to be delivered by the Borrower under the terms of this
Agreement.
"SUBSIDIARY" means, as to any Person, a corporation of which shares of
stock having ordinary voting power (other than stock having such power only
by reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation are at the time
owned, or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such Person.
"TERMINATION DATE" means March 9, 1997.
"TERM LOANS" means collectively, the term loans made by the Bank to the
Borrower evidenced by the Commercial Installment Loan Agreement dated
August 16, 1991 and the Commercial Installment Loan Agreement dated March
29, 1995, and the notes executed in connection therewith.
SECTION 1.2 ACCOUNTING TERMS. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP consistent with
those applied in the preparation of the financial statements referred to in
section 4.4, and all financial data submitted pursuant to this Agreement
shall be prepared in accordance with such principles.
ARTICLE II
AMOUNT AND TERMS OF THE LOAN
SECTION 2.1 REVOLVING CREDIT. The Bank agrees on the terms and
conditions herein set forth, to make Revolving Credit Loans (which shall
include Prime Rate Loans, Quoted Rate Loans and the face amount of Letters
of Credit issued pursuant to section 2.2) to the Borrower from time to time
during the period from the date of this Agreement up to but not including
the Termination Date in an aggregate outstanding amount not to exceed at
any time, the lesser of:
(1) Six Million Five Hundred Thousand Dollars ($6,500,000), (the
"Commitment"); or
(2) The Borrowing Base, calculated as follows:
(a) 80% of the Borrower's Eligible Accounts; plus
(b) 70% of the Borrower's raw paper inventory and raw material
inventory located at those addresses shown on Schedule
2.1(2)(b) hereof; plus
(c) 50% of the Borrower's raw paper inventory not located at
any of the addresses listed on Schedule 2.1(2)(b) hereof,
to the extent that such inventory is listed at a location
described on Schedule 2.1(2)(c) hereof, and that the Bank
has received a written offset waiver in the form of Exhibit
B hereto from each owner, operator, or lessee of the
premises at which such inventory is located; plus
(d) 40% of the Borrower's finished goods inventory which is not
in transit and which is located at an address listed on
Schedule 2.1(2)(d) hereto; plus
(e) such amount as is reasonably satisfactory to the Bank and
the Borrower as being representative of the Orderly
Liquidation Value of the Borrower's Customer List. (In
establishing such amount the Bank and the Borrower shall
give reasonable consideration to the Orderly Liquidation
Value of the Borrower's customer lists as determined by an
independent expert reasonably satisfactory to the Bank and
the Borrower. At the present time, and until such expert
determination and the subsequent agreement between the Bank
and the Borrower as to a different sum, the Orderly
Liquidation Value of the Borrower's customer lists for use
in computing this element of the Borrowing Base shall be
$2,500,000); LESS
(f) $343,000 (such amount to be reduced from time to time by
the amount of any voluntary prepayment of the Term Loans,
if any), if any part of the Term Loans remains unpaid; LESS
(g) the amount outstanding or committed by the Bank under the
Existing Letters of Credit.
Within the limits of the Commitment and the Borrowing Base, and
assuming no Default has occurred, the Borrower may borrow, prepay pursuant
to section 2.8 and reborrow under this section 2.1. At any time, the
Revolving Credit Loans may be outstanding as Prime Rate Loans, Quoted Rate
Loans or a combination thereof.
SECTION 2.2 LETTERS OF CREDIT. Subject to the terms and conditions of
this Agreement, the Commitment may be utilized by the Borrower for the
issuance by the Bank of commercial, documentary or standby letters of
credit (other than Existing Letters of Credit) issued after January 31,
1996 ("Additional Letters of Credit") for the account of the Borrower,
provided that in no event shall:
(1) the aggregate face amount of such Additional Letters of Credit,
plus the aggregate outstanding principal amount of Revolving Credit Loans
exceed the lesser of the Commitment or the Borrowing Base;
(2) prior to the issuance of any Letter of Credit, the Borrower
shall pay the Bank's customary fees for issuance of the Additional Letters
of Credit.
All other terms and conditions, including the form of each Additional
Letter of Credit must be satisfactory to the Bank in its sole discretion.
If the terms, conditions or form of any Letter of Credit are not agreed to
by the Bank and the Borrower, the Bank shall have no liability to the
Borrower as a result of the Bank's failure to issue any such Letter of
Credit.
Amounts advanced by the Bank on account of draws against any of the
Additional Letters of Credit issued under this section will be treated as
Revolving Credit Loans.
SECTION 2.3 QUOTED RATE LOANS. Provided that no Default has occurred
hereunder, the Borrower may request that the Bank make Revolving Credit
Loans to the Borrower under this Agreement at any time prior to the
Termination Date, bearing interest at the Quoted Rate during any Interest
Period. At the end of each Interest Period, the Borrower may repay the
Quoted Rate Loan in whole or in part and/or elect to renew the Quoted Rate
Loan for an additional Interest Period at a new Quoted Rate by giving the
notice required by Section 2.4. Any Quoted Rate Loan that is not so
renewed, shall automatically convert to a Prime Rate Loan at the end of the
applicable Interest Period.
Each Quoted Rate Loan shall constitute a "Revolving Credit Loan" for
all purposes of, and shall be governed by, this Agreement. The Borrower
shall give the Bank notice of each Quoted Rate Loan as provided in Section
2.4.
Each Revolving Credit Loan which is not a Quoted Rate Loan shall be a
Prime Rate Loan.
SECTION 2.4 NOTICE AND MANNER OF BORROWING.
(1) The Borrower shall give the Bank written notice (effective upon
receipt) of each Revolving Credit Loan requested under this Agreement by
9:30 a.m. on the date such Revolving Credit Loan is to be made, specifying
the amount thereof, and whether such Revolving Credit Loan shall be a Prime
Rate Loan or a Quoted Rate Loan. Not later than the close of business on
the date of such Revolving Credit Loan and upon fulfillment of the
applicable conditions set forth in Article III, the Bank will make such
Loan available to the Borrower in immediately available funds by crediting
the amount thereof to the Borrower's account with the Bank.
(2) The Borrower shall give the Bank at least three (3) Business
Days' written notice (effective upon receipt) of each Letter of Credit to
be issued under this Agreement, specifying the date and amount thereof, and
describing in reasonable detail the proposed term of such Additional Letter
of Credit (including the beneficiary thereof) and the nature of the
transactions or obligations purported to be supported thereby.
SECTION 2.5 INTEREST. The Borrower shall pay interest to the Bank on
the outstanding and unpaid principal amount of the Revolving Credit Loans
made under this Agreement at a rate per annum as follows:
(1) for a Prime Rate Loan, at a rate equal to the Prime Rate; and
(2) for a Quoted Rate Loan at a rate equal to the Money Market
Rate plus 135 basis points (1.35%).
Any change in the interest rate resulting from a change in the Prime
Rate shall become effective as of the opening of business on the day on
which such change in the Prime Rate shall become effective. Interest shall
be calculated on the basis of a year of 360 days for the actual number of
days elapsed. Interest shall be paid in immediately available funds on the
first day of each month hereafter at the Payment Office. Any principal
amount not paid when due (at maturity, by acceleration, or otherwise) shall
bear interest thereafter until paid at a rate which shall be two percent
(2.0%) above the Prime Rate, regardless of whether such principal amount is
outstanding as a Prime Rate Loan or a Quoted Rate Loan.
In any dispute involving the interest due on any Revolving Credit
Loans, the Bank shall be entitled to an irrefutable presumption that each
interest xxxx issued by the Bank is correct unless within thirty days of
the date of the xxxx, the Borrower has sent the Bank a written notice of
any error with respect thereto, which notice shall include the Borrower's
calculation of the amount of interest it believes is properly due.
SECTION 2.6 COMMITMENT FEE. The Borrower agrees to pay to the Bank a
commitment fee on the average daily unused portion of the Commitment from
the date of this Agreement until the Termination Date at the rate of one
percent (1%) per annum, based on a year of 360 days, payable on May 15,
1996, August 15, 1996, November 15, 1996 and on the Termination Date.
SECTION 2.7 NOTE. All Revolving Credit Loans made by the Bank under
this Agreement shall be evidenced by, and repaid with interest in
accordance with, a single promissory note of the Borrower in substantially
the form of Exhibit C duly completed, in the principal amount of Six
Million Five Hundred Thousand and no/100 Dollars ($6,500,000.00), dated the
date of this Agreement, payable to the Bank, and maturing as to principal
on the Termination Date (the "Note"). The Bank is hereby authorized by the
Borrower to endorse, on Schedule A attached to the Note in the case of
Prime Rate Loans, and Schedule B attached to the Note in the case of Quoted
Rate Loans, the amount of each such Revolving Credit Loan, the amount of
each payment of principal received by the Bank on account of such Revolving
Credit Loans, and, in the case of Quoted Rate Loans, the Quoted Rate in
effect with respect to such Quoted Rate Loan, which endorsement shall, in
the absence of manifest error, be conclusive as to the outstanding balance
of the Revolving Credit Loans made by the Bank; provided, however, that the
failure to make such notation with respect to any Revolving Credit Loan or
payment shall not limit or otherwise affect the obligations of the Borrower
under this Agreement or the Note.
SECTION 2.8 PREPAYMENTS.
(1) PERMISSIVE. The Borrower may, at any time, prepay the Note in
whole or in part with accrued interest to the date of such prepayment on
the amount prepaid, provided that a Quoted Rate Loan may be prepaid only on
the last day of the Interest Period for such Quoted Rate Loan.
(2) MANDATORY. Until the Termination Date, the Borrower shall
prepay the Revolving Credit Loans in such amounts as shall be necessary so
that at all times the aggregate amount of Revolving Credit Loans
outstanding, plus the aggregate face amount of Letters of Credit, plus the
aggregate face amount of Existing Letters of Credit, shall not exceed the
Borrowing Base. Each Mandatory prepayment shall be made within two
business days of the date on which the Borrower learns or could reasonably
have learned that such condition exists. Mandatory prepayments shall be
applied first to Prime Rate Loans and then to Quoted Rate Loans, but only
to the extent that such prepayment would not violate Section 2.7(1). In
the event that the mandatory prepayment required hereby exceeds the amount
of Revolving Credit Loans that may be prepaid pursuant to Section 2.7(1),
then the Borrower shall deposit with the Bank, as cash collateral, an
amount equal to such excess to be used by the Bank to prepay Quoted Rate
Loans in accordance with Section 2.7(1).
SECTION 2.9 METHOD OF PAYMENT. The Borrower shall make each payment
under this Agreement and under the Note no later than 2:00 p.m. Eastern
time on the date when due in lawful money of the United States to the Bank
at the Payment Office in immediately available funds. The Borrower hereby
authorizes the Bank, if and to the extent payment is not made when due
under this Agreement or under the Note, to charge from time to time against
any account of the Borrower with the Bank any amount so due. Whenever any
payment to be made under this Agreement or under the Note shall be stated
to be due on a Saturday, Sunday, or a public holiday, or the equivalent for
banks generally under the laws of the State of New York, such payment shall
be made on the next succeeding Business Day, and such extension of time
shall in such case be included in the computation of the payment of
interest and the commitment fee, as the case may be.
SECTION 2.10 USE OF PROCEEDS. The proceeds of the Revolving Credit
Loans hereunder shall be used by the Borrower to repay amounts outstanding
under the Existing Line of Credit and then for general corporate purposes
and the issuance of Letters of Credit. The Borrower will not, directly or
indirectly, use any part of such proceeds for the purpose of purchasing or
carrying any margin stock so as to cause a violation of Regulation U of the
Board of Governors of the Federal Reserve System or to extend credit to any
Person for the purpose of purchasing or carrying any such margin stock.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.1 CONDITION PRECEDENT TO THE LOAN. The obligation of the
Bank to make the initial Loan to the Borrower is subject to the condition
precedent that the Bank shall have received on or before the day of such
Loan each of the following, in form and substance satisfactory to the Bank
and its counsel:
(1) NOTE. The Note duly executed by the Borrower;
(2) SECURITY AGREEMENT. A Security Agreement, duly executed by the
Borrower, together with Financing Statements (UCC-1) duly executed by the
Borrower for filing under the Uniform Commercial Code in all jurisdictions
necessary or, in the opinion of the Bank, desirable to perfect the security
interest created by the Security Agreement;
(3) EVIDENCE OF ALL CORPORATE ACTION BY THE BORROWER. Certified
(as of the date of this Agreement) copies of all corporate action taken by
the Borrower, including resolutions of its Board of Directors (or any
executive committee thereof), authorizing the execution, delivery, and
performance of the Loan Documents to which it is a party and each other
document to be delivered pursuant to this Agreement;
(4) INCUMBENCY AND SIGNATURE CERTIFICATE OF THE BORROWER. A
certificate (dated as of the date of this Agreement) of the Secretary or
Assistant Secretary of the Borrower certifying the names and true
signatures of the officers of the Borrower authorized to sign the Loan
Documents to which it is a party and each other document to be delivered by
the Borrower under this Agreement;
(5) OPINION OF COUNSEL FOR THE BORROWER. (a) A favorable opinion
of Xxxxxx, Xxxxxx & Xxxxxxx, transactional counsel for the Borrower, in
substantially the form of Exhibit D; and (b) a favorable opinion of Xxxxxx
X. Xxxxxxx, general counsel for the Borrower, in substantially the form of
Exhibit E; and
(6) INSURANCE CERTIFICATE. A duly issued policy or certificate
evidencing compliance with section 5.5 below.
SECTION 3.2 CONDITIONS PRECEDENT TO ALL LOANS. The obligation of the
Bank to make each Revolving Credit Loan (including the initial Revolving
Credit Loan) shall be subject to the further conditions precedent that on
the date of such Revolving Credit Loan:
(1) The representations and warranties contained in Article IV of
this Agreement, and in section III of the Security Agreement,
are correct in all material respects on and as of the date of
such Revolving Credit Loan as though made on and as of such
date, unless such representation and warranty under Article IV
of this Agreement indicates that it is being made as of an
other specific date in which case on and as of such other date;
(2) No Default or Event of Default has occurred and is continuing,
or would result from such Revolving Credit Loan; and
(3) The Revolving Credit Loan would not cause the aggregate amount
of Revolving Credit Loans outstanding, plus the aggregate face
amount of Additional Letters of Credit to exceed the Borrowing
Base.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement and make the Loan(s) to
the Borrower, the Borrower represents and warrants and so long as the Note
remains unpaid or this Agreement remains in effect, shall be deemed
continuously to represent and warrant as follows:
SECTION 4.1 INCORPORATION, GOOD STANDING, AND DUE QUALIFICATION. The
Borrower and each of its Subsidiaries is a corporation duly incorporated,
validly existing, and in good standing under the laws of the jurisdiction
of its incorporation; has the corporate power and authority to own its
assets and to transact the business in which it is now engaged or proposed
to be engaged in; and is duly qualified as a foreign corporation and in
good standing under the laws of each other jurisdiction in which such
qualification is required., except where the failure to so qualify would
not have a material adverse effect on the financial condition, properties
or operations (collectively, a "Material Adverse Effect") of the Borrower.
SECTION 4.2 CORPORATE POWER AND AUTHORITY. The execution, delivery,
and performance by the Borrower of the Loan Documents to which it is a
party have been duly authorized by all necessary corporate action and do
not and will not (1) require any consent or approval of the stockholders of
such corporation; (2) contravene such corporation's charter or bylaws; (3)
violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination, or award presently in effect having
applicability to such corporation, other than which in the aggregate will
not have a Material Adverse Effect on the Borrower; (4) result in a breach
of or constitute a default under any indenture or loan or credit agreement
(other than the Chase Loan Documents) or any other agreement, lease, or
instrument to which such corporation is a party or by which it or its
properties may be bound or affected which default or breach could have a
Material Adverse Effect on the Borrower; (5) result in, or require, the
creation or imposition of any Lien, upon or with respect to any of the
properties now owned or hereafter acquired by such corporation, except for
Liens in favor of the Bank and except for Liens which in this aggregate
will not have a Material Adverse Effect on the Borrower; and (6) cause such
corporation to be in default under any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination, or award or any such
indenture, agreement, lease, or instrument, which default would have a
Material Adverse Effect on the Borrower.
SECTION 4.3 LEGALLY ENFORCEABLE AGREEMENT. This Agreement is, and
each of the other Loan Documents when delivered under this Agreement will
be, legal, valid, and binding obligations of the Borrower enforceable
against the Borrower, as the case may be, in accordance with their
respective terms, except to the extent that such enforcement may be limited
by applicable bankruptcy, insolvency, and other similar laws affecting
creditors' rights generally.
SECTION 4.4 FINANCIAL STATEMENTS. The balance sheet of the Borrower
and its Subsidiaries as at December 31, 1995, and the related statements of
income and retained earnings of the Borrower for the fiscal year then
ended, draft copies of which have been furnished to the Bank, are
substantially complete and correct and fairly present the financial
condition of the Borrower and its Subsidiaries as at such dates and the
results of the operations of the Borrower and its Subsidiaries for the
periods covered by such statements, all in accordance with GAAP
consistently applied, and since December 31, 1995, there has been no change
in the condition (financial or otherwise), business, or operations of the
Borrower which has had a Material Adverse Effect on the Borrower. There
are no liabilities of the Borrower, fixed or contingent, which are material
but are not reflected in the financial statements, other than contingent
liabilities related to the litigation referred to in Schedule 4.7, the
employment agreement between the Borrower and its chairman, and payments
which may be made to Valassis pursuant to the advertising arrangements
between the Borrower and Valassis and the put right of Valassis, and
liabilities arising in the ordinary course of business since December 31,
1995. As of the date hereof the Borrower has furnished to the Bank true
and correct copies of all reports and documents filed by it with the
Securities and Exchange Commission since January 1, 1995, and no such
information, exhibit, or report so furnished by the Borrower to the Bank
whether in connection with the negotiation of this Agreement or otherwise
contained at the time of filing, any material misstatement of fact or
omitted to state a material fact or any fact necessary to make the
statement contained therein not materially misleading.
SECTION 4.5 LABOR DISPUTES AND ACTS OF GOD. Neither the business nor
the properties of the Borrower or any Subsidiary are affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or public enemy, or other
casualty (whether or not covered by insurance) materially and adversely
affecting such business or properties or the operation of the Borrower or
such Subsidiary.
SECTION 4.6 OTHER AGREEMENTS. Neither the Borrower nor any Subsidiary
is a party to any indenture, loan, or credit agreement, or to any lease or
other material agreement or instrument, or subject to any charter or
corporate restriction which could have a Material Adverse Effect on the
Borrower or any Subsidiary. Except for certain defaults under the Chase
Loan Documents, neither the Borrower nor any Subsidiary is in default in
any respect in the performance, observance, or fulfillment of any of the
obligations, covenants, or conditions contained in any agreement or
instrument material to its business to which it is a party.
SECTION 4.7 LITIGATION. As of the date of this Agreement, there is no
pending or threatened action or proceeding against or affecting the
Borrower or any of its Subsidiaries before any court, governmental agency,
or arbitrator, which may, in any one case or in the aggregate, have a
Material Adverse Effect on the Borrower or any Subsidiary except such as
are disclosed on Schedule 4.7 hereto but such disclosure or listing a
matter on that schedule shall not be deemed an indication that either the
Bank or the Borrower considers such pending or threatened action or
proceeding as likely to have a Material Adverse Effect on the Borrower.
After the date of this Agreement, there is no other pending or threatened
action or proceeding against or affecting the Borrower or any of its
Subsidiaries before any court, governmental agency, or arbitrator, except
such as both (i) have been disclosed in writing to the Bank if the amount
sought exceeds $50,000, and (ii) are not reasonably likely, in any one case
or in the aggregate, to have a Material Adverse Effect on the Borrower or
any Subsidiary.
SECTION 4.8 NO DEFAULTS ON OUTSTANDING JUDGMENTS OR ORDERS. As of the
date of this Agreement, the Borrower and its Subsidiaries have satisfied
all material judgments, and neither the Borrower nor any Subsidiary is in
default with respect to any material judgment, writ, injunction, decree,
rule, or regulation of any court, arbitrator, or federal, state, municipal,
or other governmental authority, commission, board, bureau, agency, or
instrumentality, domestic or foreign.
SECTION 4.9 OWNERSHIP AND LIENS. As of the date of this Agreement,
the Borrower and each Subsidiary has title to, or valid leasehold interests
in, all of its properties and assets, real and personal, including the
properties and assets and leasehold interest reflected in the financial
statements referred to in section 4.4 (other than any properties or assets
disposed of in the ordinary course of business).
SECTION 4.10 SUBSIDIARIES AND OWNERSHIP OF STOCK. Set forth in
Exhibit F is a complete and accurate list of the Subsidiaries of the
Borrower as of the date of this Agreement, showing the jurisdiction of
incorporation of each and showing the percentage of the Borrower's
ownership of the outstanding stock of each Subsidiary. All of the
outstanding capital stock of each Subsidiary has been validly issued, is
fully paid and nonassessable, and is owned by the Borrower free and clear
of all Liens.
SECTION 4.11 ERISA. The Borrower and each Subsidiary is in compliance
in all material respects with all applicable provisions of ERISA. Neither
a Reportable Event nor a Prohibited Transaction has occurred and is
continuing with respect to any Plan; no notice of intent to terminate a
Plan has been filed nor has any Plan been terminated; no circumstances
exist which constitute grounds under section 4042 of ERISA entitling the
PBGC to institute proceedings to terminate, or appoint a trustee to
administrate, a Plan, nor has the PBGC instituted any such proceedings;
neither the Borrower nor any ERISA Affiliate has completely or partially
withdrawn under sections 4201 or 4204 of ERISA from a Multiemployer Plan;
the Borrower and each ERISA Affiliate has met its minimum funding
requirements under ERISA with respect to all of its Plans and the present
value of all vested benefits under each Plan does not exceed the fair
market value of all Plan assets allocable to such benefits, as determined
on the most recent valuation date of the Plan and in accordance with the
provisions of ERISA and the regulations thereunder for calculating the
potential liability of the Borrower or any ERISA Affiliate to the PBGC or
the Plan under Title IV of ERISA; and neither the Borrower nor any ERISA
Affiliate has incurred any liability (other than to pay annual premiums) to
the PBGC under ERISA.
SECTION 4.12 OPERATION OF BUSINESS. The Borrower and its Subsidiaries
possess all material licenses, permits, franchises, patents, copyrights,
trademarks, and trade names, or rights thereto, to conduct their respective
business substantially as now conducted and as presently proposed to be
conducted, and the Borrower and its Subsidiaries are not in violation of
any valid rights of others with respect to any of the foregoing.
SECTION 4.13 TAXES. The Borrower and each of its Subsidiaries have
filed all tax returns (federal, state, and local) required to be filed and
have paid all material taxes, assessments, and governmental charges and
levies thereon to be due, including interest and penalties other than those
not yet delinquent or being contested in good faith. The federal income
tax liability of the Borrower and its Subsidiaries have been audited by the
Internal Revenue Service and have been finally determined and satisfied for
all taxable years up to and including the taxable year ended December 31,
1993.
SECTION 4.14 DEBT. Exhibit G is a complete and correct list of all
credit agreements, indentures, purchase agreements, guaranties, Capital
Leases, and other investments, agreements, and arrangements presently in
effect providing for or relating to extensions of credit (including
agreements and arrangements for the issuance of letters of credit or for
acceptance financing) in respect of which the Borrower or any Subsidiary is
in any manner directly or contingently obligated; and the maximum principal
or face amounts of the credit in question, which are outstanding and which
can be outstanding, are correctly stated.
SECTION 4.15 COMPLIANCE WITH LAWS. The Borrower is in compliance with
all applicable laws and regulations, in all jurisdictions in which it is
presently doing business, other than such non-compliance that would not
have a Material Adverse Effect on the Borrower.
SECTION 4.16 CHASE LOAN DOCUMENTS. As of the date of this Agreement,
the Borrower is in default of its obligations under the Chase Loan
Documents and the execution and delivery of the Security Agreement may
constitute a further default under the Chase Loan Documents. The Borrower
is engaged in negotiations with Chase to obtain a waiver of the
aforementioned defaults. Chase has knowledge of and has not objected to
the grant of the security interest affected by the execution of the
Security Agreement. Chase has made no claim or assertion that the
execution of the Security Agreement constitutes tortious interference with
its rights under the Chase Loan Documents or any similar claim.
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any amount of the Note remains unpaid, this Agreement
remains in effect, or the Borrower shall have the right to borrow
hereunder, the Borrower shall:
SECTION 5.1 MAINTENANCE OF EXISTENCE. Preserve and maintain, and
cause each Subsidiary to preserve and maintain, its corporate existence in
good standing in the jurisdiction of its incorporation, and qualify and
remain qualified, and cause each Subsidiary to qualify and remain
qualified, as a foreign corporation in each jurisdiction where the failure
to so qualify would have or would be likely to have a Material Adverse
Effect on the Borrower.
SECTION 5.2 MAINTENANCE OF RECORDS. Keep, and cause each Subsidiary
to keep, adequate records and books of account, in which complete entries
will be made in accordance with GAAP consistently applied, reflecting all
financial transactions of the Borrower and its Subsidiaries.
SECTION 5.3 MAINTENANCE OF PROPERTIES. Maintain, keep, and preserve,
and cause each Subsidiary to maintain, keep, and preserve, all of its
material properties (tangible and intangible) necessary or useful in the
proper conduct of its business in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.4 CONDUCT OF BUSINESS. Continue, and cause each Subsidiary
to continue, to engage in a business of the same general type as now
conducted by it on the date of this Agreement.
SECTION 5.5 MAINTENANCE OF INSURANCE. Maintain, and cause each
Subsidiary to maintain, insurance with financially sound and reputable
insurance companies or associations in such amounts and covering such risks
as are usually carried by companies engaged in the same or a similar
business and similarly situated, which insurance may provide for reasonable
deductibility from coverage thereof.
SECTION 5.6 COMPLIANCE WITH LAWS. Comply, and cause each Subsidiary
to comply, in all respects with all applicable laws, rules, regulations,
and orders, including without limitation Environmental Laws, except where
non-compliance would not have a Material Adverse Effect on the Borrower.
SECTION 5.7 RIGHT OF INSPECTION. At any reasonable time and from time
to time, upon prior written notice and during normal business hours, permit
the Bank, or any agent or representative thereof, or any appraiser or
engineer retained by or on behalf of the Bank, to examine and make copies
of and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any Subsidiary, and to discuss the affairs,
finances, and accounts of the Borrower and any Subsidiary with any of their
respective officers and directors and the Borrower's independent
accountants.
SECTION 5.8 REPORTING REQUIREMENTS. Furnish to the Bank:
(1) FINANCING STATEMENTS AND SEARCHES. On or before March 25,
1996, (a) acknowledgment copies of the Financing Statements (UCC-1) duly
filed under the Uniform Commercial Code of all jurisdictions necessary or,
in the opinion of the Bank, desirable to perfect the security interest
created by the Security Agreement, and (b) certified copies of Requests for
Information (Form UCC-11) identifying all of the financing statements on
file with respect to the Borrower in all jurisdictions referred to under
(a), including the Financing Statement filed by the Bank against the
Borrower, indicating that no party claims an interest in any of the
Collateral, except as permitted by this Agreement;
(2) NO CONFLICTS OPINION. On or before March 31, 1996, an opinion
of Xxxxxx X. Xxxxxxx, General Counsel for the Borrower, in form and
substance reasonably satisfactory to the Bank and its counsel, that the
Loan Documents, and the Borrower's payment of the indebtedness evidenced by
the Note, do not, after giving effect to the Chase Amendment, cause a
breach of any of the provisions of, or constitute a default under, or
result in the creation or imposition of a lien, charge or encumbrance upon
any of the assets of the Borrower, pursuant to the Chase Documents.
(3) BORROWING BASE/CERTIFICATE OF NO DEFAULT. Within thirty (30)
days after the end of each month, a certificate of the chief financial
officer of the Borrower (a) showing a calculation of the Borrowing Base
(which shall include, attached thereto, an accounts receivable aging
schedule) and (b) certifying that to the best of his knowledge no Default
or Event of Default has occurred and is continuing or, if a Default or
Event of Default has occurred and is continuing, a statement as to the
nature thereof and the action which is proposed to be taken with respect
thereto.
(4) MONTHLY FINANCIAL STATEMENTS. As soon as available and in any
event within thirty (30) days after the end of each month (which is not
also the end of a fiscal quarter) of each fiscal year of the Borrower,
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such month, consolidated and consolidating
statements of income and retained earnings of the Borrower and its
Subsidiaries for the period commencing at the end of the previous fiscal
year and ending with the end of such month, and a consolidated and
consolidating statement of change in financial position of the Borrower and
its Subsidiaries for the portion of the fiscal year ended with the last day
of such month, all in reasonable detail and stating in comparative form the
respective consolidated and consolidating figures for the corresponding
date and period in the previous fiscal year and all prepared in accordance
with GAAP consistently applied and certified by the chief financial officer
of the Borrower (subject to year-end adjustments);
(5) QUARTERLY FINANCIAL STATEMENTS. As soon as available and in
any event within forty-five (45) days after the end of each of the first
three quarters of each fiscal year of the Borrower, consolidated and
consolidating balance sheets of the Borrower and its Subsidiaries as of the
end of such quarter, consolidated and consolidating statements of income
and retained earnings of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end
of such quarter, and a consolidated and consolidating statement of change
in financial position of the Borrower and its Subsidiaries for the portion
of the fiscal year ended with the last day of such quarter, all in
reasonable detail and stating in comparative form the respective
consolidated and consolidating figures for the corresponding date and
period in the previous fiscal year and all prepared in accordance with GAAP
consistently applied and certified by the chief financial officer of the
Borrower (subject to year-end adjustments);
(6) ANNUAL FINANCIAL STATEMENTS. As soon as available and in any
event within ninety (90) days after the end of each fiscal year of the
Borrower, a consolidated and consolidating balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal year and a consolidated
and consolidating statement of income and retained earnings of the Borrower
and its Subsidiaries for such fiscal year and a consolidated and
consolidating statement of change in financial position of the Borrower and
its Subsidiaries for such fiscal year, all in reasonable detail and stating
in comparative form the respective consolidated and consolidating figures
for the corresponding date and period in the prior fiscal year and all
prepared in accordance with consistently applied and as to the consolidated
statements accompanied by an opinion thereon reasonably acceptable to the
Bank by Xxxxxx Xxxxxxxx, LLP or other independent accountants selected by
the Borrower and acceptable to the Bank;
(7) MANAGEMENT LETTERS. Promptly upon receipt thereof, copies of
any reports submitted to the Borrower or any Subsidiary by independent
certified public accountants in connection with examination of the
financial statements of the Borrower or any Subsidiary made by such
accountants;
(8) ACCOUNTANT'S REPORT. Simultaneously with the delivery of the
annual financial statements referred to in section 5.8(5), a certificate of
the independent public accountants who audited such statements to the
effect that, in making the examination necessary for the audit of such
statements, they have obtained no knowledge of any condition or event which
constitutes a Default or Event of Default, or if such accountants shall
have obtained knowledge of any such condition or event, specify in such
certificate each such condition or event of which they have knowledge and
the nature and status thereof;
(9) NOTICE OF LITIGATION. Promptly after the commencement thereof,
notice of all actions, suits, and proceedings before any court or
governmental department, commission, board, bureau, agency, or
instrumentality, domestic or foreign, affecting the Borrower which, if
determined adversely to the Borrower, could have a Material Adverse Effect
on the Borrower;
(10)NOTICE OF DEFAULTS AND EVENTS OF DEFAULT. As soon as possible
and in any event within three (3) days after Borrower learns or should
reasonably have learned of the occurrence of a Default or Event of Default,
a written notice setting forth the details of such Default or Event of
Default and the action which is proposed to be taken by the Borrower with
respect thereto;
(11)REPORTS TO OTHER CREDITORS. Promptly after the furnishing
thereof, copies of any statement or report furnished to any other party
pursuant to the terms of any indenture, loan, credit or similar agreement
and not otherwise required to be furnished to the Bank pursuant to any
other clause of this section 5.8 if such statement or report is related to
a Default or Event of Default under this Agreement or any other loan,
indenture, credit or similar agreement;
(12)PROXY STATEMENTS, ETC. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements, and reports
which the Borrower or any Subsidiary sends to its stockholders, and copies
of all regular, periodic, and special reports, and all registration
statements which the Borrower or any Subsidiary files with the Securities
and Exchange Commission or any governmental authority which may be
substituted therefor, or with any national securities exchange; and
(13)GENERAL INFORMATION. Such other information respecting the
condition or operations, financial or otherwise, of the Borrower or any
Subsidiary as the Bank may from time to time reasonably request.
ARTICLE VI
NEGATIVE COVENANTS
So long as any amount of the Note remains unpaid, this Agreement
remains in effect, or the Borrower shall have the right to borrow
hereunder, the Borrower, without the written consent of the Bank, shall
not:
SECTION 6.1 LIENS. Create, incur, assume, or suffer to exist, or
permit any Subsidiary to create, incur, assume, or suffer to exist, any
Lien upon or with respect to any Collateral now owned or hereafter
acquired, except:
(1) Liens in favor of the Bank;
(2) Liens for taxes or assessments or other government charges or
levies if not yet due and payable or, if due and payable, if they are being
contested in good faith by appropriate proceedings and for which
appropriate reserves are maintained;
(3) Liens imposed by law, such as mechanics', materialmen's,
landlords', warehousemen's, and carriers' Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are
not past due for more than thirty (30) days or which are being contested in
good faith by appropriate proceedings and for which appropriate reserves
have been established;
(4) Liens under workmen's compensation, unemployment insurance,
social security, or similar legislation;
(5) Liens, deposits, or pledges to secure the performance of bids,
tenders, contracts (other than contracts for the payment of money), leases
(permitted under the terms of this Agreement), or public or statutory
obligations, surety, stay, appeal, indemnity, performance, or other similar
bonds; or other similar obligations arising in the ordinary course of
business;
(6) Judgment and other similar Liens arising in connection with
court proceedings, provided the execution or other enforcement of such
Liens is effectively stayed and the claims secured thereby are being
actively contested in good faith and by appropriate proceedings;
(7) Liens securing obligations of a Subsidiary to the Borrower or
another Subsidiary;
(8) Existing Liens to the extent that the holder of which, the
debts secured thereby, the collateral encumbered thereby, and the priority
thereof are accurately described on Exhibit H hereto which has been
prepared by the Borrower and/or its counsel; and
(9) Liens voluntarily created hereafter by the Borrower which are
subordinate to the Liens in favor of the Bank and subject to an inter-
creditor agreement satisfactory to the Bank between the Bank and the
secured parties with respect to such other Liens.
SECTION 6.2 MERGERS, ETC. Merge or consolidate with, or sell, assign,
lease, or otherwise dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned
or hereafter acquired) to any Person, or acquire all or substantially all
of the assets or the business of any Person, or permit any Subsidiary to do
so, except that (1) any Subsidiary may merge into or transfer assets to the
Borrower and (2) any Subsidiary may merge into or consolidate with or
transfer assets to any other Subsidiary.
SECTION 6.3 DIVIDENDS. Declare or pay any dividends; or purchase,
redeem, retire, or otherwise acquire for value any of its capital stock now
or hereafter outstanding; or make any distribution of assets to its
stockholders as such whether in cash, assets, or obligations of the
Borrower; or allocate or otherwise set apart any sum for the payment of any
dividend or distribution on, or for the purchase, redemption, or retirement
of, any shares of its capital stock; or make any other distribution by
reduction of capital or otherwise in respect of any shares of its capital
stock; or permit any of its Subsidiaries to purchase or otherwise acquire
for value any stock of the Borrower or another Subsidiary.
SECTION 6.4 SALE OF COLLATERAL. Sell, lease, assign, transfer, or
otherwise dispose of any of its now owned or hereafter acquired Collateral,
except: (1) for inventory disposed of in the ordinary course of business;
and (2) the sale or disposition of assets no longer used or useful in the
conduct of its business, provided that the proceeds of any specific
equipment subject to a Lien in favor of the Bank are paid to the Bank in
kind.
SECTION 6.5 GUARANTIES, ETC. Assume, guarantee, endorse, or otherwise
be or become directly or contingently responsible or liable, or permit any
Subsidiary to assume, guarantee, endorse, or otherwise be or become
directly or contingently responsible or liable (including, but not limited
to, an agreement to purchase any obligation, stock, assets, goods, or
services, or to supply or advance any funds, assets, goods, or services, or
to maintain or cause such Person to maintain a minimum working capital or
net worth or otherwise to assure the creditors of any Person against loss)
for obligations of any Person, except (1) guaranties by endorsement of
negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business, (2) guaranties in favor of the Bank
(including the Guaranty), (3) guaranties of the obligations of employees
made in connection with their employment, and (4) miscellaneous guaranties
not to exceed in each case, $50,000 or in the aggregate $100,000.
SECTION 6.6 TRANSACTION WITH AFFILIATE. Enter into any transaction,
including, without limitation, the purchase, sale, or exchange of property
or the rendering of any service, with any Affiliate, or permit any
Subsidiary to enter into any transaction, including, without limitation,
the purchase, sale, or exchange of property or the rendering of any
service, with any Affiliate, except in the ordinary course of and pursuant
to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the
Borrower or such Subsidiary than would obtain in a comparable arm's-length
transaction with a Person not an Affiliate.
SECTION 6.7 HAZARDOUS SUBSTANCES. Suffer, cause or permit the
Disposal of Hazardous Substances at any Property or at any real property on
which the Collateral is located, nor suffer, cause or permit the
generation, handling, processing, use or storage of Hazardous Substances on
any such real property except in compliance with all Environmental Laws
except where such non-compliance may not have a Material Adverse Effect on
the Borrower or any Subsidiary.
ARTICLE VII
FINANCIAL COVENANTS
So long as any amount of the Note remains unpaid, this Agreement
remains in effect, or the Borrower shall have the right to borrow
hereunder:
SECTION 7.1 MINIMUM WORKING CAPITAL. The Borrower will maintain at
all times an excess of current liabilities over current assets of not more
than $350,000 through June 30, 1996 and will maintain an excess of current
assets over current liabilities of not less than $1.00 at all times
thereafter. For the purpose of this section, all amounts outstanding under
the Revolving Credit Note shall be treated as long term debt.
SECTION 7.2 MINIMUM TANGIBLE NET WORTH. The Borrower will maintain at
all times a tangible net worth of not less than $8,000,000.
SECTION 7.3 MONTHLY INCOME/LOSS. During each month ending after the
date hereof, the Borrower will not incur a net, pre-tax loss (exclusive of
non-cash write-downs not to exceed $500,000 in the aggregate) in excess of
$500,000.
SECTION 7.4 CURRENT RATIO. The Borrower will maintain at all times a
ratio of current assets to current liabilities of not less than .9 to 1.0
through June 30, 1996 and 1.0 to 1.0 at all times thereafter. For the
purpose of this section, all amounts outstanding under the Revolving Credit
Note shall be treated as long term debt.
SECTION 7.5 QUARTERLY LOSS. During fiscal 1996, the Borrower will not
suffer or incur a quarterly net loss (exclusive of non-cash write-downs not
to exceed $500,000 in the aggregate) before taxes in excess of the
following amounts:
Maximum
QUARTER ENDED: QUARTERLY LOSS:
3/31/96 $900,000
6/30/96 500,000
9/30/96 - 0 -
12/31/96 - 0 -
SECTION 7.6 LEVERAGE RATIO. The Borrower will maintain at all times a
ratio of total liabilities to tangible net worth of not greater than 4.0 to
1.0.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 EVENTS OF DEFAULT. If any of the following events
("Events of Default") shall occur:
(1) The Borrower should fail to pay the principal of, or interest
on, the Note, as and when due and payable (including any mandatory
prepayments or deposits required by Section 2.7(2));
(2) The Borrower shall fail to obtain a written waiver of all
defaults under the Borrower's loan agreements with Chase on or before March
31, 1996;
(3) Chase or any subsequent holder shall seek to enforce any right
or remedy it has as a result of any Default or Event of Default under any
loan or collateral agreement of the Borrower presently held by Chase;
(4) Any representation or warranty made or deemed made by the
Borrower in this Agreement or the Security Agreement or which is contained
in any certificate, document, opinion, or financial or other statement
furnished at any time under or in connection with any Loan Document shall
prove to have been incorrect in any material respect on or as of the date
made or deemed made;
(5) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Sections 5.2, 5.3, 5.8(6), or 5.8(10)
and such failure shall continue uncured for thirty (30) days;
(6) The Borrower shall fail to perform or observe any term,
covenant, or agreement contained in any Loan Document (other than the Note
and other than those covenants identified in the preceding subparagraph) to
which it is a party on its part to be performed or observed;
(7) The Borrower or any of its Subsidiaries shall (a) fail to pay
any indebtedness for borrowed money (other than the Note) of the Borrower
or such Subsidiary in excess of $50,000, as the case may be, or any
interest or premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise), or (b) fail to
perform or observe any term, covenant, or condition on its part to be
performed or observed under any agreement or instrument relating to any
such indebtedness, when required to be performed or observed, if the effect
of such failure to perform or observe is to accelerate, or to permit the
acceleration after the giving of notice or passage of time, or both, of the
maturity of such indebtedness, unless and until such failure to perform or
observe shall be waived by the holder of such indebtedness{1} or cured to
the satisfaction of the holder of such indebtedness; or any such
indebtedness shall be declared to be due and payable, or required to be
prepaid (other than by a regularly scheduled required prepayment), prior to
the stated maturity thereof;
(8) The Borrower or any of its Subsidiaries (a) shall generally
not, or shall be unable to, or shall admit in writing its inability to pay
its debts as such debts become due; or (b) shall make an assignment for the
benefits of creditors, petition or apply to any tribunal for the
appointment of a custodian, receiver, or trustee for him or it or a
substantial part of his or its assets; or (c) shall commence any proceeding
under any bankruptcy, reorganization, arrangements, readjustment of debt,
dissolution, or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect; or (d) shall have any such petition or application
filed or any such proceeding commenced against him or it in which an order
for relief is entered or adjudication or appointment is made and which
remains undismissed for a period of thirty (30) days or more; or (e) by any
act or omission shall indicate its consent to, approval of, or acquiescence
in any such petition, application, or proceeding or order for relief or the
appointment of a custodian, receiver, or trustee for all or any substantial
part of his or its properties; or (f) shall suffer any such custodianship,
receivership, or trusteeship to continue undischarged for a period of sixty
(60) days or more;
(9) One or more judgments, decrees, or orders for the payment of
money in excess of Fifty Thousand and no/100 Dollars ($50,000.00) in the
aggregate shall be rendered against the Borrower, any of its Subsidiaries
and such judgments, decrees, or orders shall continue unsatisfied and in
effect for a period of thirty (30) consecutive days without being vacated,
discharged, satisfied, stayed or bonded pending appeal; or
(10)The Security Agreement shall at any time after its execution
and delivery and for any reason cease (a) to create a valid and perfected
first priority security interest in and to the property purported to be
subject to such Security Agreement; or (b) to be in full force and effect
or shall be declared null and void, or the validity or enforceability
thereof shall be contested by the Borrower, or the Borrower shall deny it
has any further liability or obligation under the Security Agreement, or
the Borrower shall fail to perform any of its obligations under the
Security Agreement;
Then, and in any such event, the Bank may, by notice to the Borrower,
(1) declare its obligation to make Loans to be terminated whereupon the
same shall forthwith terminate, and (2) declare the Note, all interest
thereon, and all other amounts payable under this Agreement to be forthwith
due and payable, whereupon the Note, all such interest, and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest, or further notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 OTHER LOAN DOCUMENTS. Attached hereto as Exhibit I, are
true and correct copies of certain commercial loan documents (the
"Continuing Loan Documents") currently in full force and effect between the
Bank and the Borrower which will continue in full force and effect after
the execution and delivery of the Loan Documents. The Loan Documents and
the Continuing Loan Documents each constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their
respective terms except to the extent modified in accordance with those
amendments copies of which are annexed hereto as Exhibit J and except to
the extent that such enforcement may be limited by applicable bankruptcy,
insolvency, and other similar laws affecting creditors' rights generally.
The Borrower has no defenses, offsets, claims, or counterclaims of any kind
or nature with respect to its obligations arising under any of the Loan
Documents or Continuing Loan Documents.
SECTION 9.2 AMENDMENTS, ETC. No amendment, modification,
termination, or waiver of any provision of any Loan Document to which the
Borrower is a party, nor consent to any departure by the Borrower from any
Loan Document to which it is a party, shall in any event be effective
unless the same shall be in writing and signed by the Bank, and then such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 9.3 NOTICES, ETC. All notices and other communications
provided for under this Agreement and under the other Loan Documents to
which the Borrower is a party shall be in writing (including telegraphic or
facsimile communication) and mailed or telegraphed or delivered, if to the
Borrower, at its address at 0 Xxxxx Xxxxx, Xxxxxx, Xxx Xxxx 00000 (fax No.
(000) 000-0000) Attention: Xxxxxx Xxxxxxx, and if to the Bank, at its
address at Xxx Xxxxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 (fax No.
(000) 000-0000), Attention: Xxxxxxx X. Xxxx; or, as to each party, at such
other address as shall be designated by such party in a written notice to
the other party complying as to delivery with the terms of this section
9.2. All such notices and communications shall, when mailed or
telegraphed, be effective when deposited in the mails or delivered to the
telegraph company, respectively, addressed as aforesaid, except that
notices to the Bank pursuant to the provisions of Article II shall not be
effective until received by the Bank.
SECTION 9.4 NO WAIVER; REMEDIES. No failure on the part of the Bank
to exercise, and no delay in exercising, any right, power, or remedy under
any Loan Documents shall operate as a waiver thereof; nor shall any single
or partial exercise of any right under any Loan Documents preclude any
other or further exercise thereof or the exercise of any other right. The
remedies provided in the Loan Documents are cumulative and not exclusive of
any remedies provided by law.
SECTION 9.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the Borrower and the Bank and their
respective successors and assigns, except that the Borrower may not assign
or transfer any of its rights under any Loan Document to which the Borrower
is a party without the prior written consent of the Bank.
SECTION 9.6 COSTS, EXPENSES, AND TAXES. Except as limited herein,
the Borrower agrees to pay on demand (1) all costs and expenses in
connection with the negotiation, preparation, execution, delivery, filing,
recording, and administration of any of the Loan Documents, including,
without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Bank, and local counsel who may be retained by said
counsel, with respect thereto and with respect to advising the Bank as to
its rights and responsibilities under any of the Loan Documents, (2) all
costs and expenses, if any, in connection with advice concerning the Bank's
rights under, and/or in connection with, the enforcement of any of the Loan
Documents. In addition, the Borrower shall pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing, and recording of any of the Loan Documents and
the other documents to be delivered under any such Loan Documents, and
agrees to save the 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. The Borrower's obligation to reimburse the Bank for
appraisals heretofore obtained are limited to $5,000 for equipment
appraisals and $3,000 for real property appraisals. The Borrower's
obligation to reimburse the Bank for legal fees under subdivision (1)(a) of
this section: (a) shall be limited to $20,000 for (i) services rendered
through January 17, 1996, (ii) preparation of first draft closing
documents, and (iii) closing arrangements.
SECTION 9.7 RIGHT OF SETOFF. Upon the occurrence and during the
continuance of any Event of Default the Bank is hereby authorized at any
time and from time to time, without notice to the Borrower (any such notice
being expressly waived by the Borrower), to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by the Bank to or for
the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement
or the Note or any other Loan Document, irrespective of whether or not the
Bank shall have made any demand under this Agreement or the Note or such
other Loan Document and although such obligations may be unmatured. The
Bank agrees promptly to notify the Borrower after any such setoff and
application, provided that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of the Bank under
this section 9.6 are in addition to other rights and remedies (including,
without limitation, other rights of setoff) which the Bank may have.
SECTION 9.8 GOVERNING LAW. This Agreement and the Note shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.9 SEVERABILITY OF PROVISIONS. Any provision of any Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Loan
Document or affecting the validity or enforceability of such provision in
any other jurisdiction.
SECTION 9.10 HEADINGS. Article and section headings in the Loan
Documents are included in such Loan Documents for the convenience of
reference only and shall not constitute a part of the applicable Loan
Documents for any other purpose.
SECTION 9.11 INDEMNIFICATION. The Borrower agrees to indemnify,
defend, and hold harmless the Bank from and against any and all
liabilities, claims, damages, penalties, expenditures, losses, or charges
arising under Environmental Laws. Such costs or other liabilities incurred
by the Bank or any other person or entity shall be deemed to include,
without limitation, any sums which the Bank deems it necessary or desirable
to expend to protect its security interest in the Collateral. The
liability of the Borrower to the Bank under the covenants of this Paragraph
is not limited by any exculpatory provisions in this Agreement, or in the
other documents securing this Loan and shall survive any repayment of this
Loan, transfer of the Collateral, or any other transfer or termination of
this Agreement regardless of the means of such transfer or termination. In
addition to any other conditions necessary to terminate this Agreement, the
liability of the Borrower to the Bank under this Paragraph shall survive
until the following conditions are met: (1) neither the Bank nor any other
person or entity indemnified under this Paragraph has taken title to or
operated any Property or the Collateral, or any part thereof, nor
participated, or had the ability to participate, in decisions affecting
Hazardous Substances present on, in or under any Property; (2) no change in
any Environmental Law has occurred during the period beginning on the date
hereof, and ending on the date the Note has been paid in full, which would
make the Bank liable for any condition in the Environment arising from the
Collateral or any Property; and (3) no actual, threatened, or pending claim
by the Bank or any other person or entity for indemnification under this
Paragraph exists.
In addition, the Borrower agrees to indemnify, defend, and hold
harmless the Bank from and against any and all liabilities, claims,
damages, penalties, expenditures, losses, or charges incurred by the Bank
in connection with any claim made, or action or proceeding brought, by
Chase against the Bank related to the Borrower's execution, delivery or
performance of its obligations under any of the Loan Documents.
SECTION 9.12 RENEWAL OF EXISTING LETTERS OF CREDIT. Upon written
application of the Borrower, and upon payment of the Bank's customary fees
for such service or accommodation, the Bank will renew Existing Letters of
Credit through March 9, 1997 or such earlier date as is requested by the
Borrower, provided that no Default or Event of Default shall have occurred
and be continuing at the time of such application.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the
date first above written.
ARTISTIC GREETINGS INCORPORATED
By: /s/ Xxxxxx Xxxxxxx
Xxxxxx Xxxxxxx, EVP and CFO
MARINE MIDLAND BANK
By: /s Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx, Vice President
**FOOTNOTES**
{1}Except that any existing default by the Borrower under its existing
agreements with Chase which has been reported by the Borrower to the Bank in
writing, shall not constitute a default under this subsection provided that all
such defaults are waived by Chase on or before March 31, 1996 and provided
further that this exception does not apply to, or in any way limit or impair
the operation of, subsection (3) above.
7.01; 030896
EXHIBIT INDEX
Exhibit A Form of Security Agreement
Exhibit B Form of Offset Waiver
Exhibit C Revolving Credit Note
Exhibit D Form of Opinion of Xxxxxx Xxxxxx & Xxxxxxx
Exhibit E Opinion of Xxxxxx X. Xxxxxxx
Exhibit F List of Subsidiaries
Exhibit G List of Debt
Exhibit H List of Permitted Liens
Exhibit I Copies of Continuing Loan Documents
Exhibit J Form of Amendment and Modification Agreement
Exhibit K Form of Borrowing Base Certificate
SCHEDULE INDEX
SCHEDULE 2.1(2)(b)Locations owned by Borrower at which raw
material inventory is located.
SCHEDULE 2.1(2)(c)Locations at which raw material inventory
subject to vendor setoff waivers is located.
SCHEDULE 2.1(2)(d)Locations owned by Borrower at which finished
goods inventory is located.
SCHEDULE 4.7Litigation list.
7.01; 030896
EXHIBIT C
NOTE
$6,500,000.00 March 8, 1996
Rochester, New York
FOR VALUE RECEIVED, the undersigned, ARTISTIC GREETINGS INCORPORATED a
Delaware corporation (the "Borrower"), DOES HEREBY PROMISE to pay to the
order of MARINE MIDLAND BANK (the "Bank"), at its office at Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000 in lawful money of the United
States and in immediately available funds, the principal amount of Six
Million Five Hundred Thousand and no/100 Dollars ($6,500,000.00) or the
aggregate unpaid principal amount of all Revolving Credit Loans made to the
Borrower by the Bank hereunder and pursuant to the Agreement, whichever is
less, on March 9, 1997, and to pay interest (computed on the basis of a
year of 360 days) from the date of this Note on the unpaid principal amount
hereof, in like money, at said office, at a rate per annum as provided in
the Agreement (as defined below).
The Borrower hereby authorizes the Bank to endorse on Schedule A
annexed to this Note in the case of Prime Rate Loans and Schedule B annexed
to this Note in the case of Quoted Rate Loans, all Revolving Credit Loans
made to the Borrower and all payments of principal amounts in respect of
such Revolving Credit Loans, which endorsements shall, in the absence of
manifest error, be conclusive as to the outstanding principal amount of all
Revolving Credit Loans; provided, however, that the failure to make such
notation with respect to any Revolving Credit Loan or payment shall not
limit or otherwise affect the obligations of the Borrower under the
Agreement or this Note.
This Note is the Note referred to in a certain Revolving Credit
Agreement between the Bank and the Borrower dated March 8, 1996 (the
"Agreement"), and capitalized terms used herein shall have the meanings
ascribed to such terms in the Agreement. The Agreement, among other
things, contains provisions for acceleration of the maturity of this Note
upon the happening of certain stated events and also for prepayments on
account of the principal of this Note prior to the maturity upon the terms
and conditions specified in the Agreement. This Note is secured by a
Security Agreement reference to which is hereby made for a description of
the Collateral and the rights of the Borrower and the Bank with respect to
such Collateral. This Note shall be governed by the laws of the State of
New York, provided that, as to the maximum rate of interest which may be
charged or collected, if the laws applicable to the Bank permit it to
charge or collect a higher rate than the laws of the State of New York,
then such law applicable to the Bank shall apply to the Bank under this
Note.
ARTISTIC GREETINGS INCORPORATED
By:
Title:
7.01; 030896
SCHEDULE A
Unpaid Principal
Amount of Principal Balance of all Name of Person
Amount of Prepaid Prime Rate Loans Making Notation
Date Loan
SCHEDULE B
QUOTED RATE LOANS
Unpaid Principal
Balance of all Name of Person
Amount of Quoted Rate Making
Amount of Loan Principal Prepaid Loans Notation Applicable
Date Quoted Rate
