AMENDED AND RESTATED FINANCING AGREEMENT The CIT Group/Business Credit, Inc. (as Lender) and Command Security Corporation (as Borrower) Dated: As of March 22, 2006
Exhibit
10.1
AMENDED
AND RESTATED FINANCING AGREEMENT
The
CIT Group/Business Credit, Inc.
(as
Lender)
and
Command
Security Corporation
(as
Borrower)
Dated:
As of March 22,
2006
Table
of Contents
Page
SECTION
1. Definitions 1
SECTION
2. Conditions
Precedent 10
SECTION
3. Revolving
Loans 14
SECTION
4. Intentionally
Omitted.
17
SECTION
5. Letters
of Credit.
17
SECTION
6. Collateral
17
SECTION
7. Representations,
Warranties and Covenants
20
SECTION
8. Interest,
Fees and Expenses 26
SECTION
9. Powers 28
SECTION
10. Events
of
Default and Remedies 29
SECTION
11. Termination 32
SECTION
12. Miscellaneous 33
SCHEDULES
Schedule
1 - Collateral
Information
THE
CIT GROUP/BUSINESS CREDIT, INC.,
a New
York corporation, with offices located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter “CIT”),
is
pleased to confirm the terms and conditions under which CIT shall make revolving
loans and other financial accommodations to COMMAND
SECURITY CORPORATION,
a New
York corporation with a principal place of business at ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (herein the “Company”).
Reference
is hereby made to that certain Financing Agreement, dated December 12, 2003
(as
such agreement may have been amended, supplemented, modified or otherwise
changed from time to time, the “Existing
Financing Agreement”),
by
and between the Company and CIT, pursuant to which CIT agreed to make revolving
loans and other extensions of credit to the Company. CIT and the Company wish
to
amend the Existing Financing Agreement in certain respects and, in that
connection, to restate the Existing Financing Agreement in its entirety, with
(i) any loans outstanding under the Existing Financing Agreement on the
Restatement Effective Date (as hereinafter defined), continuing and remaining
outstanding as Revolving Loans hereunder after the Restatement Effective Date
and (ii) on and after the Restatement Effective Date, all references in any
Loan
Document to the Existing Financing Agreement being references to the Existing
Financing Agreement, as amended and restated hereby. Accordingly, the Company
and CIT hereby agree that the Existing Financing Agreement be amended and
restated in its entirety as follows:
SECTION
1. Definitions
“Accounts”
shall
mean all of the Company’s now existing and future: (a) accounts (as defined in
the UCC), and any and all other receivables (whether or not specifically listed
on schedules furnished to CIT), including, without limitation, the Gemini
Receivables and TBV Receivables and all accounts created by, or arising from,
all of the Company’s sales, leases, rentals of goods or renditions of services
to its customers, including but not limited to, those accounts arising under
any
of the Company’s trade names or styles, or through any of the Company’s
divisions; (b) any and all instruments, documents, chattel paper (including
electronic chattel paper) (all as defined in the UCC); (c) unpaid seller’s or
lessor’s rights (including rescission, replevin, reclamation, repossession and
stoppage in transit) relating to the foregoing or arising therefrom; (d) rights
to any goods represented by any of the foregoing, including rights to returned,
reclaimed or repossessed goods; (e) reserves and credit balances arising in
connection with or pursuant hereto; (f) guarantees, supporting obligations,
payment intangibles and letter of credit rights (all as defined in the UCC);
(g)
insurance policies or rights relating to any of the foregoing; (h) general
intangibles pertaining to any and all of the foregoing (including all rights
to
payment, including those arising in connection with bank and non-bank credit
cards), and including books and records and any electronic media and software
thereto; (i) notes, deposits or property of account debtors securing the
obligations of any such account debtors to the Company; and (j) cash and non
cash proceeds (as defined in the UCC) of any and all of the
foregoing.
“Adjustment
Date”
shall
have the meaning provided for in the definition of “Applicable Margin” in
Section
1
of this
Financing Agreement.
“Administrative
Management Fee”
shall
mean the sum of $25,000.00 which shall be paid to CIT in accordance with
Section
8,
paragraph 8.5 hereof to offset the expenses and costs (excluding Out-of-Pocket
Expenses and auditor fees) of CIT in connection with administration, record
keeping, analyzing and evaluating the Collateral.
“Anniversary
Date”
shall
mean the date occurring four (4) years from the Original Closing Date and the
same date in every year thereafter.
“Applicable
Revolving Line of Credit Fee Margin”
shall
mean, for any month, the Applicable Line of Credit Fee Margin set forth below
based on the average daily principal balance of Revolving Loans and the average
daily undrawn amount
of
Letters of Credit outstanding during such month:
|
Average
Daily Principal Balance of Revolving Loans and Average Daily
Undrawn Amount
of Letters of Credit Outstanding
|
Applicable
Line of Credit Fee Margin
(on
a per annum basis for the number of days in such month)
|
|
Greater
than $5,000,000
|
0.00%
|
|
Equal
to or less than $5,000,000
|
0.375%
|
“Applicable
Margin”
shall
mean, from January 1, 2006 until the initial Adjustment Date (as defined below)
with respect to the Revolving Loans, (a) 0% for Chase Bank Rate Loans and (b)
2.50% for LIBOR Loans. On each Adjustment Date following the initial Adjustment
Date, the Applicable Margins for Chase Bank Rate Loans and LIBOR Loans shall
be
adjusted retroactively
based on
the EBITDA of the Company for the most recently completed Fiscal Quarter, to
the
following amounts:
|
EBITDA
|
Chase
Bank Rate Loans
|
LIBOR
Loans
|
|
Greater
than $500,000
|
0.00%
|
2.50%
|
|
Equal
to or less than $500,000
|
0.25%
|
2.75%
|
All
adjustments to the Applicable Margin shall, in each case, (x) be adjusted after
receipt by CIT of the Company’s financial statements for the Fiscal Quarter
ending March 31, 2006 and after receipt by CIT of the Company’s financial
statements for each Fiscal Quarter ended thereafter which are required to be
delivered to CIT in accordance with the provisions of Section
7.8(b)
of this
Financing Agreement (each, an “Adjustment
Date”),
and
(y) shall take effect retroactively on the Adjustment Date immediately preceding
the date of CIT’s receipt of such
2
financial
statements. Notwithstanding the foregoing: (a) no reduction in Applicable
Margins shall occur if a Default or an Event of Default shall have occurred
and
be continuing on such Adjustment Date or the date of CIT’s receipt of the
financial statements on which such reduction is to be based and (b) if the
Company fails to deliver the financial statements on which any reduction in
the
Applicable Margin is to be based within five (5) days of the due date for such
statements set forth in Section
7.8(b),
then
effective as of the Adjustment Date immediately preceding the due date for
such
financial statements, the Applicable Margin shall increase to the highest margin
set forth in the table above until the delivery of such financial
statements.
“Availability” shall
mean, at any time, the amount by which (a) the Borrowing Base of the Company
at
such time exceeds (b) the sum at such time of (i) the principal amount of all
outstanding Revolving Loans, plus
(ii) the
undrawn amount of all outstanding Letters of Credit.
“Availability
Reserve”
shall
mean the sum of: (a) (i) three (3) months rental payments or similar charges
for
any of the Company’s leased premises or other Collateral locations for which the
Company has not delivered to CIT a landlord’s waiver in form and substance
reasonably satisfactory to CIT, plus (ii) three (3) months estimated payments
plus any other fees or charges owing by the Company to any applicable
warehousemen or third party processor (as determined by CIT in its reasonable
business judgment), provided that any of the foregoing amounts shall be adjusted
from time to time hereafter upon: (x) delivery to CIT of any such acceptable
waiver, (y) the opening or closing of a Collateral location and/or (z) any
change in the amount of rental, storage or processor payments or similar
charges; (b) any reserve which CIT may reasonably require from time to time
pursuant to this Financing Agreement (including, without limitation, with
respect to accrued and unpaid Payroll Items); (c) a
monthly
reserve for accrued and unpaid interest on LIBOR Loans having an Interest Period
of more than 30 days; and
(d)
such other reserves as CIT deems necessary in its reasonable judgment as a
result of (i) negative forecasts and/or trends in the Company’s business,
industry, prospects, profits, operations or financial condition or (ii) other
issues, circumstances or facts that could otherwise negatively impact the
Company, its business, prospects, profits, operations, industry, financial
condition or assets. For purposes hereof “Payroll Items” shall mean the sum of
the following: (A) the book overdraft with respect to the Company’s payroll
account, currently number 032267 held at JPMorgan Chase Bank, plus (B) the
book
overdraft with respect to the Company’s non-employee of record payroll account,
currently number 032275 held at JPMorgan Chase Bank, plus (C) the Company’s
gross payroll due from the week ending the previous Sunday, plus (D) the
Company’s gross non-employee of record payroll due from the week ending the
previous Sunday, plus (v) FICA, Medicare and other taxes at the current
prevailing rate calculated on the total of clauses (C) and (D). Any Revolving
Loans made by CIT to fund Payroll Items will reduce, dollar-for dollar, any
Availability Reserve being maintained in respect thereof.
“Borrowing
Base”
shall
mean (without duplication) (a) the sum of (i) eighty-five percent (85%) of
the
Company’s aggregate outstanding Eligible Accounts Receivable; provided,
however,
that if
the then Dilution Percentage is greater than five percent (5%), then the rate
of
advance herein shall be reduced by the amount of such excess Dilution
Percentage, plus
(ii) the
lesser of (A) 75% of the Company’s aggregate outstanding Eligible Unbilled
Accounts Receivable or (B) $2,500,000.00, plus
(iii)
Delta Receivables of up to (but not exceeding) $750,000, less
(b) any
applicable Availability Reserves. For purposes of calculating the
3
Borrowing
Base, no Trade Accounts Receivable of the Company may constitute at the same
time both Eligible Accounts Receivable and Eligible Unbilled Accounts
Receivable.
“Business
Day”
shall
mean any day on which CIT and JPMorgan Chase Bank are open for
business.
“Capital
Expenditures”
shall
mean, for any period, the aggregate expenditures of the Company during such
period on account of, property, plant, equipment or similar fixed assets that
in
conformity with GAAP, are required to be reflected in the balance sheet of
the
Company.
“Capital
Improvements”
shall
mean operating Equipment and facilities (other than land) acquired or installed
for use in the Company’s business operations.
“Capital
Lease”
shall
mean any lease of property (whether real, personal or mixed) which, in
conformity with GAAP, is accounted for as a capital lease or a Capital
Expenditure in the balance sheet of the Company.
“Chase
Bank Rate”
shall
mean the rate of interest per annum announced by JPMorgan Chase Bank from time
to time as its prime rate in effect at its principal office in New York City.
(The prime rate is not intended to be the lowest rate of interest charged by
JPMorgan Chase Bank to its borrowers.)
“Chase
Bank Rate Loans”
shall
mean any loans or advances pursuant to this Financing Agreement made or
maintained at a rate of interest based upon the Chase Bank Rate.
“CIT
Commitment Letter”
shall
mean the Commitment Letter, dated November 19, 2003, issued by CIT to, and
accepted by, the Company.
“Collateral”
shall
mean all present and future Accounts, Equipment, Documents of Title, General
Intangibles, Real Estate, the TBV Service Agreement, the TBV Receivables,
Inventory, the Gemini Service Agreement, the Gemini Receivables, Pledged Stock
of the Company’s subsidiaries and Other Collateral.
“Collection
Days”
shall
mean two (2) Business Days to provide for the deposit, clearance and collection
of checks or other instruments representing the proceeds of Collateral, the
amount of which has been credited to the Company’s Revolving Loan Account, and
for which interest may be charged on the aggregate amount of such deposits,
at
the rate provided for in Paragraph 8.1 of Section
8
of this
Financing Agreement.
“Consolidated
Balance Sheet”
shall
mean a consolidated or compiled, as applicable, balance sheet for the Company
and its consolidated subsidiaries, eliminating all intercompany transactions
and
prepared in accordance with GAAP.
“Consolidating
Balance Sheet”
shall
mean a Consolidated Balance Sheet plus individual balance sheets for the Company
and its consolidated subsidiaries, showing all eliminations of intercompany
transactions, including a balance sheet for the Company exclusively, all
prepared in accordance with GAAP.
4
“Copyrights”
shall
mean all present and hereafter acquired copyrights, copyright registrations,
recordings, applications, designs, styles, licenses, marks, prints and labels
bearing any of the foregoing, goodwill, any and all general intangibles,
intellectual property and rights pertaining thereto, and all cash and non-cash
proceeds thereof.
“Default”
shall
mean any event specified in Section
10
hereof,
whether or not any requirement for the giving of notice, the lapse of time,
or
both, or any other condition, event or act, has been satisfied.
“Default
Rate of Interest” shall
mean a rate of interest equal to two percent (2%) per annum
greater
than the interest rate accruing on the Obligations pursuant to Section
8.1
hereof,
which CIT shall be entitled to charge the Company on all Obligations due CIT
by
the Company, as further set forth in Paragraph 10.2 of Section
10
of this
Financing Agreement.
“Delta
Receivables”
shall
mean the Company’s
Accounts which arise from the rendition of services to Delta Airlines in
accordance with agreements entered into with Delta Airlines on or after Delta
Airline’s commencement of cases under Chapter 11 of Title 11 of the United
States Code in the United States Bankruptcy Court,
so long
as such Accounts do not remain
unpaid for more than thirty (30) days from invoice date.
“Depository
Accounts”
shall
mean the collection accounts, which are subject to CIT’s instructions, as
specified in Paragraph 3.4 of Section
3
of this
Financing Agreement.
“Dilution
Percentage”
shall
mean, as of any time of calculation, the then sum of the Borrower’s credits,
claims, allowances, discounts, write-offs, contras, off-sets and deductions
divided by the then sum of gross sales of the Company, all calculated on a
rolling ninety (90) day average, as determined and calculated by CIT from time
to time.
“Documentation
Fee”
shall
mean CIT’s standard fees relating to any and all modifications, waivers,
releases, amendments or additional collateral with respect to this Financing
Agreement, the Collateral and/or the Obligations.
“Documents
of Title”
shall
mean all present and future documents (as defined in the UCC), and any and
all
warehouse receipts, bills of lading, shipping documents, chattel paper,
instruments and similar documents, all whether negotiable or not and all goods
relating thereto and all cash and non cash proceeds of the
foregoing.
“Early
Termination Date”
shall
mean the date on which the Company terminates this Financing Agreement or the
Revolving Line of Credit which date is prior to an Anniversary
Date.
“Early
Termination Fee”
shall:
(a) mean the fee CIT is entitled to charge the Company in the event the Company
terminates the Revolving Line of Credit or this Financing Agreement on a date
prior to an Anniversary Date; and (b) be determined by multiplying the Revolving
Line of Credit by (x) one percent (1%) if the Early Termination Date occurs
after two (2) years from the Original Closing Date but on or before three (3)
years from the Original Closing Date and (y) one-half percent (0.5%) if the
Early Termination Date occurs after three (3) years from the Original Closing
Date but prior to an Anniversary Date.
5
“EBITDA”
shall
mean, in any period, all earnings of the Company for said period before
all interest, tax obligations and depreciation and amortization expense of
the
Company
for said
period, determined in accordance with GAAP on a consistent basis with the latest
audited financial statements of the Company, but excluding the effect of
extraordinary or non-reoccurring gains or losses for such period.
“Eligible
Accounts Receivable”
shall
mean the gross amount of the Company’s Trade Accounts Receivable, other than
Eligible Unbilled Accounts Receivable, that are subject to a valid, exclusive,
first priority and fully perfected security interest in favor of CIT, which
conform to the warranties contained herein and which, at all times, continue
to
be acceptable to CIT in the exercise of its reasonable judgment, less, without
duplication, the sum of: (a) any returns, discounts, claims, credits and
allowances of any nature (whether issued, owing, granted, claimed or
outstanding), and (b) reserves for any such Trade Accounts Receivable that
arise
from or are subject to or include: (i) sales to the United States of America,
any state or other governmental entity or to any agency, department or division
thereof, except for any such sales as to which the Company has complied with
the
Assignment of Claims Act of 1940 or any other applicable statute, rules or
regulation, to CIT’s satisfaction in the exercise of its reasonable business
judgment; (ii) foreign sales, other than sales which otherwise comply with
all
of the other criteria for eligibility hereunder and are (x) secured by letters
of credit (in form and substance satisfactory to CIT) issued or confirmed by,
and payable at, banks having a place of business in the United States of
America, or (y) to customers residing in Canada (iii) Accounts that remain
unpaid more than ninety (90) days from invoice date or sixty (60) days from
due
date; (iv) contra accounts; (v) sales to any subsidiary, or to any company
affiliated with the Company or TBV or Gemini in any way; (vi) ▇▇▇▇ and hold
(deferred shipment) or consignment sales; (vii) sales to any customer which
is:
(A) insolvent, (B) the debtor in any bankruptcy, insolvency, arrangement,
reorganization, receivership or similar proceedings under any federal or state
law (unless otherwise approved by CIT), (C) negotiating, or has called a meeting
of its creditors for purposes of negotiating, a compromise of its debts, or
(D)
financially unacceptable to CIT or has a credit rating unacceptable to CIT;
(viii) all sales to any customer if fifty percent (50%) or more of the aggregate
dollar amount of all outstanding invoices to such customer are unpaid more
than
ninety (90) days from invoice date; (ix) sales to any customer and/or its
affiliates to the extent such sales exceed at any one time twenty percent (20%)
or more of all Eligible Accounts Receivable; (x) pre-billed receivables and
receivables arising from progress billing; (xi) an amount representing,
historically, returns, discounts, claims, credits, allowances and applicable
terms; (xii) sales not payable in United States currency; (xiii) any other
reasons deemed necessary by CIT in its reasonable judgment, including without
limitation those
which are customary either in the commercial finance industry or in the lending
practices of CIT;
(xiv)
with respect to the TBV Receivables, the TBV Service Agreement and the TBV
Assignment Agreement shall be in full force and effect, provided that if the
TBV
Service Agreement is terminated the TBV Receivables then being serviced by
Command at the time of such termination shall nevertheless continue to
constitute Eligible Accounts Receivables if, and to the extent, such TBV
Receivables comply with the other criteria of this definition;
(xv)
Trade Accounts Receivable of any airline
to the
extent such Trade
Accounts Receivable
exceed
at any one time twelve percent (12%) or more of all Eligible Accounts
Receivable;
and
(xvi)
with respect to Gemini Receivables, the Gemini Service Agreement and Gemini
Assignment shall be in full force and effect provided that amounts deemed
eligible hereunder shall not exceed $300,000 in the aggregate at any time.
Without
limiting
the foregoing, all Trade Accounts
6
Receivable
of any airline or the United States of America,
any
state or other governmental entity, agency, department or division thereof
shall
be acceptable to CIT in the exercise of its reasonable credit
judgment.
“Eligible
Unbilled Accounts Receivable”
shall
mean the gross amount of the Company’s Trade Accounts Receivable (other than TBV
Receivables and the Gemini Receivables) that constitute Eligible Accounts
Receivable except that such Trade Accounts Receivable are either (a) evidenced
only by a preliminary invoice, not delivered to the relevant customer, or (b)
are reflected on the Company’s Billing Cumulative Report, in each case in
sufficient detail and with back-up that is acceptable to CIT. None of the
Company’s Trade Accounts Receivable shall constitute Eligible Unbilled Accounts
Receivable on any date more than forty (40) days past the applicable date
service was rendered in respect thereof. All Eligible Unbilled Accounts
Receivable of any airline or the United States of America, any state or other
governmental entity, agency, department or division thereof shall be acceptable
to CIT in the exercise of its reasonable credit judgment.
“Equipment”
shall
mean all present and hereafter acquired equipment (as defined in the UCC)
including, without limitation, all machinery, equipment, furnishings and
fixtures, and all additions, substitutions and replacements thereof, wherever
located, together with all attachments, components, parts, equipment and
accessories installed thereon or affixed thereto and all proceeds thereof of
whatever sort.
“ERISA”
shall
mean the Employee Retirement Income Security Act or 1974, as amended from time
to time and the rules and regulations promulgated thereunder from time to
time.
“Eurocurrency
Reserve Requirements”
shall
mean for any day, as applied to a LIBOR Loan, the aggregate (without
duplication) of the maximum rates of reserve requirement (expressed as a decimal
fraction) in effect with respect to CIT and/or any present or future lender
or
participant on such day (including, without limitation, basic, supplemental,
marginal and emergency reserves under Regulation D or any other applicable
regulations of the Board of Governors of the Federal Reserve System or other
governmental authority having jurisdiction with respect thereto, as now and
from
time to time in effect, dealing with reserve requirements prescribed for
Eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of such Board) maintained by CIT and/or any such lenders or
participants (such rates to be adjusted to the nearest one-sixteenth of one
percent (1/16 of 1%) or, if there is not a nearest one-sixteenth of one percent
(1/16 of 1%), to the next higher one sixteenth of one percent (1/16 of
1%).
“Event(s)
of Default”
shall
have the meaning provided for in Section
10
of this
Financing Agreement.
“Executive
Officers”
shall
mean the Chairman, President, Chief Executive Officer, Chief Operating Officer,
Chief Financial Officer, Executive Vice President(s), Senior Vice President(s),
Treasurer, Controller and Secretary of the Company.
“Existing
Financing Agreement”
shall
have the meaning given to such term in the preliminary statements
hereof.
7
“Financing
Agreement”
shall
mean this Amended and Restated Financing Agreement, by and between CIT and
the
Company.
“Fiscal
Quarter”
shall
mean, with respect to the Company, each three (3) month period ending on March
31, June 30, September 30, and December 31 of each Fiscal Year.
“Fiscal
Year”
shall
mean each twelve (12) month period commencing on April 1 of each year and ending
on the following March 31.
“Fixed
Charge Coverage Ratio”
shall
mean the ratio for the relevant period of (a) EBITDA to (b) the sum of (i)
all
federal, state and local tax obligations of the Company, plus (ii) interest
obligations paid or due by the Company, plus (iii) all payment of indebtedness
of the Company, plus (iv) all unfinanced Capital Expenditures of the Company,
plus (v) dividends paid pursuant to Paragraph 7.9(f) of Section
7.
“GAAP”
shall
mean generally accepted accounting principles in the United States of America
as
in effect from time to time and for the period as to which such accounting
principles are to apply, provided that in the event the Company modifies its
accounting principles and procedures as applied as of the Original Closing
Date,
the Company shall provide such statements of reconciliation as shall be in
form
and substance acceptable to CIT.
“GCM
Group”
shall
mean GCM Security Partners LLC and all of its partners, members and/or equity
holders.
“Gemini”
shall
mean Gemini Security Services, LLC, a New Jersey limited liability
company.
“Gemini
Assignment Agreement”
shall
mean the Assignment of Service Agreement Non-Employer of Record, dated February
4, 2005, among Gemini, the Company and CIT.
“Gemini
Receivables”
shall
mean the Trade Accounts Receivable of Gemini that are subject to the Gemini
Service Agreement and to which the Company has a valid, first priority security
interest which it has, in turn, assigned to CIT.
“Gemini
Service Agreement”
shall
mean the Service Agreement Non-Employer of Record, dated February 4, 2005,
as
amended, among the Company, Gemini and ▇▇▇▇▇▇▇ ▇▇▇▇▇.
“General
Intangibles”
shall
mean all present and hereafter acquired general intangibles (as defined in
the
UCC), and shall include, without limitation, all present and future right,
title
and interest in and to: (a) all Trademarks, tradenames, corporate names,
business names, logos and any other designs or sources of business identities,
(b) Patents, together with any improvements on said Patents, utility models,
industrial models, and designs, (c) Copyrights, (d) trade secrets, (e) licenses,
permits and franchises, (f) all applications with respect to the foregoing,
(g)
all right, title and interest in and to any and all extensions and renewals,
(h)
goodwill with respect to any of the foregoing, (i) any other forms of similar
intellectual property, (j) all customer lists, distribution agreements, supply
agreements, blueprints, indemnification rights and tax refunds, together with
all monies and claims for monies now or hereafter due and payable in connection
with any of the foregoing or otherwise, and all cash and non cash
proceeds
8
thereof,
including, without limitation, the proceeds or royalties of any licensing
agreements between the Company and any licensee of any of the Company’s General
Intangibles.
“Guaranties”
shall
mean the guaranty documents executed and delivered by the Guarantors
guaranteeing the Obligations.
“Guarantors”
shall
mean each subsidiary, from time to time, of the Company.
“Indebtedness”
shall
mean, without duplication, all liabilities, contingent or otherwise, which
are
any of the following: (a) obligations in respect of borrowed money or for the
deferred purchase price of property, services or assets, or (b) lease
obligations which, in accordance with GAAP, have been, or which should be
capitalized.
“Insurance
Proceeds”
shall
mean proceeds or payments from an insurance carrier with respect to any loss,
casualty or damage to Collateral.
“Interest
Period”
shall
mean, subject to availability: (a) with respect to an initial request by the
Company for a LIBOR Loan or the conversion of a Chase Bank Rate Loan to a LIBOR
Loan, at the option of the Company a one-month, two-month or three-month period
commencing on the borrowing or conversion date with respect to such LIBOR Loan
and ending one month, two months or three months thereafter, as applicable;
and
(b) with respect to any continuation of a LIBOR Loan, at the option of the
Company, a one-month, two-month or three-month period commencing on the last
day
of the immediately preceding Interest Period applicable to such LIBOR Loan
and
ending one month, two months or three months thereafter, as applicable;
provided
that (i)
if any Interest Period would otherwise end on a day which is not a Working
Day,
such Interest Period shall be extended to the next succeeding Working Day,
and
(ii) if any Interest Period begins on the last Working Day of any month, or
on a
day for which there is no numerically corresponding day in the month in which
such Interest Period ends, such Interest Period shall end on the last Working
Day of the month in which such Interest Period ends.
“Inventory”
shall
mean all of the Company’s present and hereafter acquired inventory (as defined
in the UCC) and including, without limitation, all merchandise, inventory and
goods, and all additions, substitutions and replacements thereof, wherever
located, together with all goods and materials used or usable in manufacturing,
processing, packaging or shipping same in all stages of production from raw
materials through work-in-process to finished goods and all proceeds thereof
of
whatever sort.
“Investment
Property”
shall
mean all now owned and hereafter acquired investment property (as defined in
the
UCC) and all proceeds thereof.
“Issuing
Bank”
shall
mean any bank issuing a Letter of Credit for the Company.
“Letter
of Credit Guaranty”
shall
mean any guaranty or similar agreement delivered by CIT to an Issuing Bank
of
the Company’s reimbursement obligation under such Issuing Bank's reimbursement
agreement, application for letter of credit or other like
document.
9
“Letter
of Credit Guaranty Fee”
shall
mean the fee that CIT may charge the Company under Section
8.1(d)
of this
Financing Agreement for issuing a Letter of Credit Guaranty or otherwise
assisting the Company in obtaining Letters of Credit.
“Letter
of Credit Sub-Line”
shall
mean the commitment of CIT to assist the Company in obtaining Letters of Credit
in an aggregate amount of up to $1,500,000.
“Letters
of Credit”
shall
mean all letters of credit issued for or on behalf of the Company with the
assistance of CIT by an Issuing Bank in accordance with Section
5
hereof.
“LIBOR”
shall
mean, for any Interest Period and subject to availability, a rate of interest
equal to the quotient obtained by dividing: (a) at CIT’s election, (i) LIBOR for
such Interest Period as quoted to CIT by JPMorgan Chase Bank (or any successor
thereof) two (2) Business Days prior to the first day of such Interest Period,
or (ii) the rate of interest determined by CIT at which deposits in Dollars
are
offered for such Interest Period as presented on Telerate Systems at page 3750
as of 11:00 a.m. (London time) two (2) Business Days prior to the first day
of
such Interest Period (provided
that if
two or more offered rates are presented on Telerate Systems at page 3750 for
such Interest Period, the arithmetic mean of all such rates, as determined
by
CIT, will be the rate elected); by
(b) a
number equal to 1.00 minus the Eurocurrency Reserve Requirements, if any, in
effect on the day which is two (2) Business Days prior to the beginning of
such
Interest Period.
“LIBOR
Interest Payment Date”
shall
mean, with respect to any LIBOR Loan, the last day of the Interest Period for
such LIBOR Loan.
“LIBOR
Lending Office”
shall
mean the office of JPMorgan Chase Bank, or any successor thereof, maintained
at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
“LIBOR
Loan”
shall
mean any loan made pursuant to this Financing Agreement that bears interest
based upon LIBOR.
“Loan
Documents”
shall
mean this Financing Agreement, the other closing documents and any other
ancillary loan and security agreements executed from time to time in connection
with this Financing Agreement, all as may be renewed, amended, extended,
increased or supplemented from time to time.
“Obligations”
shall
mean all loans, advances and extensions of credit made or to be made by CIT
to
the Company or to others for the Company’s account (including, without
limitation, all Revolving Loans and all obligations under Letters of Credit);
any and all indebtedness and obligations which may at any time be owing by
the
Company to CIT arising under any Loan Document, whether now in existence or
incurred by the Company from time to time hereafter; whether principal,
interest, fees, costs, expenses or otherwise; whether secured by pledge, lien
upon or security interest in any of the Company’s Collateral, assets or property
or the assets or property of any other person, firm, entity or corporation;
whether such indebtedness is absolute or contingent, joint or several, matured
or unmatured, direct or indirect and whether the Company is liable to CIT for
such indebtedness as principal, surety, endorser, guarantor or otherwise.
Obligations shall also include indebtedness owing to CIT by the Company under
any Loan Document or under any other agreement or arrangement now or hereafter
entered into between the Company and CIT; indebtedness or obligations incurred
by, or imposed on, CIT as a result of environmental claims arising out of the
Company’s operations, premises or waste
10
disposal
practices or sites in accordance with paragraph 7.7 hereof; the Company’s
liability to CIT as maker or endorser of any promissory note or other instrument
for the payment of money; the Company’s liability to CIT under any instrument of
guaranty or indemnity, or arising under any guaranty, endorsement or undertaking
which CIT may make or issue to others for the Company’s account, including any
accommodations extended by CIT with respect to applications for Letters of
Credit, CIT’s acceptance of drafts or CIT’s endorsement of notes or other
instruments for the Company’s account and benefit; and any and all indebtedness,
liabilities or obligations of every kind, nature and description owing by the
Company to any affiliate of CIT.
“Operating
Leases”
shall
mean all leases of property (whether real, personal or mixed) other than Capital
Leases.
“Original
Closing Date”
shall
mean December 12, 2003, which is the date that the Existing Financing Agreement
was executed by CIT and the Company.
“Other
Collateral”
shall
mean all now owned and hereafter acquired lockbox, blocked account and any
other
deposit accounts maintained with any bank or financial institutions into which
the proceeds of Collateral are or may be deposited; all other deposit accounts
and all Investment Property; all cash and other monies and property in the
possession or control of CIT; all books, records, ledger cards, disks and
related data processing software at any time evidencing or containing
information relating to any of the Collateral described herein or otherwise
necessary or helpful in the collection thereof or realization thereon; and
all
cash and non-cash proceeds of the foregoing.
“Out-of-Pocket-Expenses”
shall
mean all of CIT’s present and future expenses incurred relative to this
Financing Agreement or any other Loan Documents, whether incurred heretofore
or
hereafter, which expenses shall include, without being limited to: (a) the
cost
of record searches, (b) all costs and expenses incurred by CIT in opening bank
accounts, depositing checks, receiving and transferring funds, and wire transfer
charges, any charges imposed on CIT due to returned items and “insufficient
funds” of deposited checks and CIT’s standard fees relating thereto, (c)
any
amounts paid by, incurred by or charged to CIT by an Issuing Bank under any
Letter of Credit or the reimbursement agreement relating thereto, any
application for a Letter of Credit, Letter of Credit Guaranty or other like
document which pertains directly to Letters of Credit, and CIT’s standard fees
relating to the Letters of Credit and any drafts thereunder,
and (d)
travel, lodging and similar expenses of CIT’s personnel in connection with
inspecting and monitoring the Collateral from time to time hereunder, any
applicable counsel fees and disbursements, fees and taxes relative to the filing
of financing statements, and all expenses, costs and fees set forth in Paragraph
10.3 of Section
10
of this
Financing Agreement.
“Overadvance
Rate”
shall
mean a rate equal to one-half of one percent (1/2%) per annum in excess of
the
applicable contract rate of interest determined in accordance with Section
8,
Paragraph 8.1(a) of this Financing Agreement.
“Overadvances” shall
mean, at any time, the amount by which (a) the sum at such time of the principal
amount of all outstanding Revolving Loans plus
the
undrawn amount of all outstanding Letters of Credit exceeds (b) the Borrowing
Base at such time.
11
“Patents”
shall
mean all of the Company’s present and hereafter acquired patents, patent
applications, registrations, any reissues or renewals thereof, licenses, any
inventions and improvements claimed thereunder, and all general intangible,
intellectual property and patent rights with respect thereto of the Company,
and
all income, royalties, cash and non-cash proceeds thereof.
“Permitted
Encumbrances”
shall
mean: (a) liens identified in Schedule 1 hereto on specific items of Equipment
and other liens expressly permitted, or consented to in writing by CIT; (b)
Purchase Money Liens; (c) liens of local or state authorities for franchise
or
other like Taxes, provided that the aggregate amounts of such liens shall not
exceed $100,000.00 in the aggregate at any one time; (d) statutory liens of
landlords and liens of carriers, warehousemen, bailees, mechanics, materialmen
and other like liens imposed by law, created in the ordinary course of business
and for amounts not yet due (or which are being contested in good faith, by
appropriate proceedings or other appropriate actions which are sufficient to
prevent imminent foreclosure of such liens) and with respect to which adequate
reserves or other appropriate provisions are being maintained by the Company
in
accordance with GAAP; (e) deposits made (and the liens thereon) in the ordinary
course of business of the Company (including, without limitation, security
deposits for leases, indemnity bonds, surety bonds and appeal bonds) in
connection with workers’ compensation, unemployment insurance and other types of
social security benefits or to secure the performance of tenders, bids,
contracts (other than for the repayment or guarantee of borrowed money or
purchase money obligations), statutory obligations and other similar obligations
arising as a result of progress payments under government contracts; (f)
easements (including, without limitation, reciprocal easement agreements and
utility agreements), encroachments, minor defects or irregularities in title,
variation and other restrictions, charges or encumbrances (whether or not
recorded) affecting the Real Estate, if applicable, and which in the aggregate
(A) do not materially interfere with the occupation, use or enjoyment by the
Company of its business or property so encumbered and (B) in the reasonable
business judgment of CIT do not materially and adversely affect the value of
such Real Estate; and (g) liens granted CIT by the Company (including the liens
granted in favor of the Company pursuant to the TBV Service Agreement and/or
the
Gemini Service Agreement that have been assigned by the Company to CIT); (h)
liens of judgment creditors provided such liens do not exceed, in the aggregate,
at any time, $50,000.00 (other than liens bonded or insured to the reasonable
satisfaction of CIT); and (i) tax liens which are not yet due and payable or
which are being diligently contested in good faith by the Company by appropriate
proceedings, and which liens are not (x) filed on any public records, (y) other
than with respect to Real Estate, senior to the liens of CIT or (z) for Taxes
due the United States of America or any state thereof having similar priority
statutes, as further set forth in paragraph 7.6 hereof.
“Permitted
Indebtedness”
shall
mean: (a) current Indebtedness maturing in less than one year and incurred
in
the ordinary course of business for raw materials, supplies, equipment,
services, Taxes or labor; (b) the Indebtedness secured by Purchase Money Liens;
(c) Indebtedness arising under this Financing Agreement; (d) deferred Taxes
and
other expenses incurred in the ordinary course of business; and (e) other
Indebtedness existing on the date of execution of the Existing Financing
Agreement and listed in the most recent financial statement delivered to CIT
or
otherwise disclosed to CIT in writing prior to the Original Closing
Date.
12
“Purchase
Money Liens”
shall
mean liens on any item of Equipment acquired after the date of this Financing
Agreement provided that (a) each such lien shall attach only to the property
to
be acquired, (b) a description of the Equipment so acquired is furnished to
CIT,
and (c) the debt incurred in connection with such acquisitions shall not exceed,
in the aggregate, $100,000.00 in any Fiscal Year.
“Real
Estate”
shall
mean the Company’s fee and/or leasehold interests in real property.
“Regulatory
Change”
shall
mean any change after the Restatement Effective Date in United States federal,
state or foreign law or regulation (including, without limitation, Regulation
D
of the Board of Governors of the Federal Reserve System), or the adoption or
making after the Restatement Effective Date of any interpretation, directive
or
request applying to a class of lenders including CIT of or under any United
States federal, state or foreign law or regulation, in each case whether or
not
having the force of law and whether or not failure to comply therewith would
be
unlawful.
“Restatement
Effective Date”
shall
mean the date on which this Financing Agreement is executed by the parties
hereto and delivered to CIT.
“Revolving
Line of Credit”
shall
mean the aggregate commitment of CIT to make Revolving Loans pursuant to
Section
3
of this
Financing Agreement and assist the Company in opening Letters of Credit pursuant
to Section
5
of this
Financing Agreement, in an aggregate amount not to exceed
$12,000,000.
“Revolving
Line of Credit Fee” shall
mean, for any month, the product obtained by multiplying (a) (i) the amount
of
the Revolving Line of Credit minus
(ii) the
average daily principal balance of Revolving Loans and the average daily
undrawn amount
of
Letters of Credit outstanding during such month, times
(b) the
Applicable Revolving Line of Credit Fee Margin.
“Revolving
Loan Account”
shall
mean the account on CIT’s books, in the Company’s name, in which the Company
will be charged with all Obligations under this Financing
Agreement.
“Revolving
Loans”
shall
mean the loans and advances made, from time to time, to or for the account
of
the Company by CIT pursuant to Section
3
of this
Financing Agreement.
“Taxes”
shall
mean all federal, state, municipal and other governmental taxes, levies,
charges, claims and assessments which are or may be due by the Company with
respect to its business, operations, Collateral or otherwise.
“TBV”
shall
mean T.B.V. Enterprises Incorporated, an Arizona corporation.
“TBV
Assignment Agreement”
shall
mean the Assignment of Service Agreement Non-Employer of Record, dated as of
the
Original Closing Date, among TBV, the Company and CIT.
“TBV
Receivables”
shall
mean the Trade Accounts Receivable of TBV that are subject to the TBV Service
Agreement and to which the Company has a valid, first priority security interest
which it has, in turn, assigned to CIT.
13
“TBV
Service Agreement”
shall
mean the Service Agreement Non-Employer of Record, dated October 3, 1994, as
amended, among the Company, TBV, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇.
“Trade
Accounts Receivable”
shall
mean (a) that portion of the Company’s Accounts which arises from the rendition
of services in the ordinary course of the Company’s business, (b) the TBV
Receivables and (c) the Gemini Receivables.
“Trademarks”
shall
mean all present and hereafter acquired trademarks, trademark registrations,
recordings, applications, tradenames, trade styles, service marks, prints and
labels (on which any of the foregoing may appear), licenses, reissues, renewals,
and any other intellectual property and trademark rights pertaining to any
of
the foregoing, together with the goodwill associated therewith, and all cash
and
non-cash proceeds thereof.
“UCC”
shall
mean the Uniform Commercial Code as the same may be amended and in effect from
time to time in the state of New York.
“Working
Day”
shall
mean any Business Day on which dealings in foreign currencies and exchanges
between banks may be transacted.
SECTION
2. Conditions
Precedent
The
effectiveness of this Financing Agreement (and the amendment and restatement
of
the Existing Financing Agreement to be effected hereby) is subject to the
satisfaction or waiver in writing by CIT of the following conditions
precedent:
(a) Financing
Agreement.
The
Company shall have delivered to CIT this Financing Agreement, duly executed
by
the Company.
(b) Board
Resolution.
CIT
shall have received a copy of the resolutions of the Board of Directors of
the
Company authorizing the execution, delivery and performance of (i) this
Financing Agreement, and (ii) any related agreements, in each case certified
by
the Secretary or Assistant Secretary of the Company as of the date hereof,
together with a certificate of the Secretary or Assistant Secretary of the
Company as to the incumbency and signature of the officers of the Company
executing such Loan Documents and any certificate or other documents to be
delivered by them pursuant hereto, together with evidence of the incumbency
of
such Secretary or Assistant Secretary.
(c) Officer’s
Certificate.
CIT
shall have received an executed Officer’s Certificate of the Company,
satisfactory in form and substance to CIT, certifying that (i) the
representations and warranties contained herein are true and correct in all
material respects on and as of the Restatement Effective Date; (ii) the Company
is in compliance with all of the terms and provisions set forth herein; and
(iii) no Default or Event of Default exists as of the Restatement Effective
Date.
(d) Absence
of Default.
No
Default or Event of Default shall have occurred and be continuing as of the
Restatement
Effective Date.
2.2. Conditions
to Each Extension of Credit
14
Except
to
the extent expressly set forth in this Financing Agreement, the agreement of
CIT
to make any extension of credit requested to be made by it to the Company on
any
date (including without limitation, the Restatement Effective Date) is subject
to the satisfaction of the following conditions precedent:
(a) Representations
and Warranties.
Each of
the representations and warranties made by the Company in or pursuant to this
Financing Agreement shall be true and correct in all material respects on and
as
of such date as if made on and as of such date.
(b) No
Default.
No
Default or Event of Default shall have occurred and be continuing on such date
or after giving effect to the extension of credit requested to be made on such
date.
(c) Borrowing
Base.
Except
as may be otherwise agreed to from time to time by CIT and the Company in
writing, after giving effect to the extension of credit requested to be made
by
the Company on such date, the aggregate outstanding balance of the Revolving
Loans plus the undrawn amount of all outstanding
Letters
of Credit will not exceed the lesser of (i) the Revolving Line of Credit or
(ii)
the Borrowing Base.
Each
borrowing by the Company hereunder shall constitute a representation and
warranty by the Company as of the date of such loan or advance that each of
the
representations, warranties and covenants contained in the Financing Agreement
have been satisfied and are true and correct, except as the Company and CIT
shall otherwise agree herein or in a separate writing.
SECTION
3. Revolving
Loans
3.1. CIT
agrees, subject to the terms and conditions of this Financing Agreement, from
time to time (but subject to CIT’s right to make “Overadvances”), to make loans
and advances to the Company on a revolving basis (i.e., subject to the
limitations set forth herein, the Company may borrow, repay and re borrow
Revolving Loans). Such requests for loans and advances shall be in amounts
not
to exceed the lesser of (a) the Availability or (b) the Revolving Line of
Credit. All requests for loans and advances must be received by an officer
of
CIT no later than 1:00 p.m., New York time (a)
on
the Business Day on which such Revolving Loan is requested to be funded, if
the
request is for a Chase Bank Rate Loan, or (b) three (3) Business Days prior
to
the Business Day on which such Revolving Loan is requested to be funded, if
the
request is for a LIBOR Loan. The funding of any LIBOR Loan is also subject
to
the satisfaction of the conditions set forth in Section
8.10
of this
Financing Agreement.
3.2. In
furtherance of the continuing assignment and security interest in the Company’s
Accounts, the Company will, upon the creation of Accounts, execute and deliver
to CIT in such form and manner as CIT may reasonably require, solely for CIT’s
convenience in maintaining records of Collateral, such confirmatory schedules
of
Accounts as CIT may reasonably request, including, without limitation, a daily
schedule of Accounts and by the 15th of each month, a monthly schedule of
Accounts, in form and substance satisfactory to CIT, and such other appropriate
reports designating, identifying and describing the Accounts as CIT may
reasonably request, and provided further that CIT may request any such
information more frequently, from time to time, upon its reasonable prior
request. In addition, the Company shall provide to CIT a daily Borrowing Base
certificate in form and substance satisfactory to CIT, copies of agreements
with, or purchase orders from, the Company’s or TBV’s or Gemini’s customers,
copies of invoices to customers, proof of shipment or delivery, access to its
computers, electronic media and software programs associated therewith
(including any electronic records, contracts and signatures) and such other
documentation and information relating to said Accounts and other Collateral
as
CIT may reasonably require. Failure to provide CIT with any of the foregoing
shall in no
15
way
affect, diminish, modify or otherwise limit the security interests granted
herein. The Company hereby authorizes CIT to regard the Company’s printed name
or rubber stamp signature on assignment schedules or invoices as the equivalent
of a manual signature by one of the Company’s authorized officers or
agents.
3.3. The
Company hereby represents and warrants that: each Trade Account Receivable
is
based on an actual and bona fide rendition of services to customers, made by
the
Company (in all cases, other than in respect of the TBV Receivables and the
Gemini Receivables) and TBV and/or Gemini (in the case of the TBV Receivables
and/or the Gemini Receivables, as the case may be), in each in the ordinary
course of its business; the Trade Accounts Receivable created, are the exclusive
property of the Company and are not and shall not be subject to any lien,
consignment arrangement, encumbrance, security interest or financing statement
whatsoever, other than the Permitted Encumbrances; the invoices evidencing
such
Trade Accounts Receivable are in the name of the Company; and the customers
of
the Company have accepted the services, owe and are obligated to pay the full
amounts stated in the invoices according to their terms, without dispute,
offset, defense, counterclaim or contra, except for disputes and other matters
arising in the ordinary course of business with respect to which the Company
has
complied with the notification requirements of Paragraph 3.5 of this
Section
3.
The
Company confirms to CIT that any and all Taxes or fees relating to its business,
its sales, the Accounts relating thereto, are its sole responsibility and that
same will be paid by the Company when due, subject to Paragraph 7.6 of
Section
7
of this
Financing Agreement, and that none of said Taxes or fees represent a lien on
or
claim against the Accounts. The Company also warrants and represents that it
is
a duly and validly existing corporation and is qualified in all states where
the
failure to so qualify would have an adverse effect on the business of the
Company or the ability of the Company to enforce collection of Accounts due
from
customers residing in that state. The Company agrees to maintain such books
and
records regarding Accounts as CIT may reasonably require and agrees that the
books and records of the Company will reflect CIT’s interest in the Accounts.
All of the books and records of the Company will be available to CIT at normal
business hours, including any records handled or maintained for the Company
by
any other company or entity.
3.4. (a) Until
CIT
has advised the Company to the contrary after the occurrence of an Event of
Default, the Company, at its expense, will enforce, collect and receive all
amounts owing on the Accounts in the ordinary course of its business and any
proceeds it so receives shall be subject to the terms hereof, and held on behalf
of and in trust for CIT. Such privilege shall terminate at the election of
CIT,
upon the occurrence of an Event of Default. Any checks, cash, credit card sales
and receipts, notes or other instruments or property received by the Company
with respect to any Collateral, including Accounts, shall be held by the Company
in trust for CIT, separate from the Company’s own property and funds, and
promptly turned over to CIT with proper assignments or endorsements by deposit
to the Depository Accounts. The Company shall: (i) indicate on all of its
invoices that funds should be delivered to and deposited in a Depository
Account; (ii) direct all of its account debtors to deposit any and all proceeds
of Collateral into the Depository Accounts; (iii) irrevocably authorize and
direct any banks which maintain the Company’s initial receipt of cash, checks
and other items to promptly wire transfer all available funds to a Depository
Account; and (iv) advise all such banks of CIT’s security interest in such
funds. The Company shall provide CIT with prior written notice of any and all
deposit accounts opened or to be opened subsequent to the Original Closing
Date.
Subject to Collection Days, all amounts received by CIT in payment of Accounts
will be credited to the Revolving Loan Account when CIT is advised by its bank
of its receipt of “collected funds” at CIT’s bank account in New York, New York
on the Business Day of such advise if advised no later than 1:00 p.m. EST or
on
the next succeeding Business Day if so advised after 1:00 PM EST. No checks,
drafts or other instrument received by CIT shall constitute final payment to
CIT
unless and until such instruments have actually been collected.
16
(b)
The
Company shall establish and maintain, in its name and at its expense, deposit
accounts with such banks as are acceptable to CIT (the “Blocked Accounts”) into
which the Company shall promptly cause to be deposited: (i) all proceeds of
Collateral received by the Company, including all amounts payable to the Company
from credit card issuers and credit card processors, and (ii) all amounts on
deposit in deposit accounts used by the Company at each of its locations, all
as
further provided in Paragraph 3.4(a) above. The banks at which the Blocked
Accounts are established shall enter into an agreement, in form and substance
satisfactory to CIT (the “Blocked Account Agreements”), providing that all cash,
checks and items received or deposited in the Blocked Accounts are the property
of CIT, that the depository bank has no lien upon, or right of set off against,
the Blocked Accounts and any cash, checks, items, wires or other funds from
time
to time on deposit therein, except as otherwise provided in the Blocked Account
Agreements, and that automatically, on a daily basis the depository bank will
wire, or otherwise transfer, in immediately available funds, all funds received
or deposited into the Blocked Accounts to such bank account as CIT may from
time
to time designate for such purpose. The Company hereby confirms and agrees
that
all amounts deposited in such Blocked Accounts and any other funds received
and
collected by CIT, whether as proceeds of Collateral or otherwise, shall be
the
property of CIT. Notwithstanding any provision to the contrary contained in
this
Agreement, until CIT notifies the Company to the contrary (which notice may
be
given by CIT at any time in its sole discretion), it is hereby agreed that
any
and all payments, remittances and/or collections from Delta Airlines
(“Delta
Collections”)
shall
be paid directly to the Company, and shall not be deposited into the Blocked
Accounts or otherwise turned over or paid to CIT for application to the
Company’s Obligations under this Agreement. Until CIT notifies the Company to
the contrary, all such Delta Collections shall be retained by the Company and
deposited into the Company’s operating bank account. Notwithstanding the
foregoing arrangement, the Delta Collections and the Accounts due and to become
due from Delta Airlines giving rise to such Delta Collections are, and shall,
at
all times continue to be, subject to CIT’s security interest, lien and all of
CIT’s rights under this Agreement. The Company hereby agrees to notify Delta
Airlines of the arrangements between CIT and the Company and take all other
actions reasonably requested by CIT to implement such arrangements. The Company
shall not be responsible for, nor shall the Company be in default under this
Agreement as a result of, Delta Airlines’ failure to comply with the
arrangements under this Agreement, provided that (x) the Company has complied
with CIT’s requests hereunder and (y) CIT may, in its sole discretion, return to
Delta Airlines any and all Delta Collections received by CIT after February
28,
2005.
3.5. The
Company agrees to notify CIT: (a) of any matters affecting the value,
enforceability or collectibility of any Account and of all customer disputes,
offsets, defenses, counterclaims, returns, rejections and all reclaimed or
repossessed merchandise or goods in its daily, weekly and monthly collateral
reports (as applicable) provided to CIT hereunder, in such detail and format
as
CIT may reasonably require from time to time; and (b) promptly of any such
matters which (i) are material, as a whole, to the Accounts, or (ii) which
adversely affect the value of any Account in an amount of $25,000.00 or more.
The Company agrees to issue credit memoranda promptly (with duplicates to be
immediately forwarded to CIT) upon accepting returns or granting allowances.
Upon the occurrence of an Event of Default (which is not waived in writing
by
CIT) and on notice from CIT, the Company agrees that all returned, reclaimed
or
repossessed merchandise or goods shall be set aside by the Company, marked
with
CIT’s name (as secured party) and held by the Company for CIT’s
account.
3.6. CIT
shall
maintain a Revolving Loan Account on its books in which the Company will be
charged with all loans and advances made by CIT to it or for its account, and
with any other Obligations, including any and all costs, expenses and reasonable
attorney’s fees which CIT may incur in connection with the exercise by or for
CIT of any of the rights or powers herein conferred upon CIT, or in the
prosecution or defense of any action or proceeding to enforce or protect any
rights of CIT in connection with this Financing Agreement, the other Loan
Documents or the Collateral assigned hereunder, or any Obligations owing by
the
Company. The Company will be credited with all amounts received by
CIT
17
from
the
Company or from others for the Company’s account, including, as above set forth,
all amounts received by CIT in payment of Accounts, and such amounts will be
applied to payment of the Obligations as set forth herein. In no event shall
prior recourse to any Accounts or other security granted to or by the Company
be
a prerequisite to CIT’s right to demand payment of any Obligation. Further, it
is understood that CIT shall have no obligation whatsoever to perform in any
respect any of the Company’s contracts or obligations relating to the
Accounts.
3.7. After
the
end of each month, CIT shall promptly send the Company a statement showing
the
accounting for the charges, loans, advances and other transactions occurring
between CIT and the Company during that month. The monthly statements shall
be
deemed correct and binding upon the Company and shall constitute an account
stated between the Company and CIT unless CIT receives a written statement
of
the exceptions within thirty (30) days of the date of the monthly
statement.
3.8. If
at any
time (a) the
sum
of the outstanding balance of Revolving Loans and undrawn amount of all
outstanding Letters of Credit exceeds the lesser of (x) the Borrowing Base
and
(y) the Revolving Line of Credit, or (b) an Overadvance exists, the amount
of
such excess (in the case of clause (a)) or the amount of the Overadvance (in
the
case of clause (b)) shall be due and payable to CIT immediately upon CIT’s
demand therefor, unless CIT otherwise agrees. Should
CIT for any reason honor requests for Overadvances, any such Overadvances shall
be made in CIT’s sole discretion and subject to any additional terms CIT deems
necessary.
3.9.
(a) So
long
as no Event of Default shall have occurred and be continuing, CIT agrees to
apply all proceeds of Collateral and other payments received by CIT with respect
to the Obligations to Chase Bank Rate Loans until there are no Chase Bank Rate
Loans outstanding, and then to LIBOR Loans; provided
that in
the event the aggregate outstanding principal amount of Revolving Loans that
are
LIBOR Loans exceeds Availability or any other applicable limit set forth herein,
CIT may apply all proceeds of Collateral or other payments received by CIT
to
the payment of the Obligations in such manner and in such order as CIT may
elect
in the exercise of its reasonable business judgment. Subject to the terms of
the
preceding sentence, so long as no Event of Default shall have occurred and
be
continuing, if CIT receives proceeds of Collateral or other payments that exceed
the outstanding principal amount of Revolving Loans that are Chase Bank Rate
Loans, the Company may request, in writing, that CIT not apply such excess
proceeds to outstanding Revolving Loans that are LIBOR Loans, in which case
CIT
shall remit such excess to the Company. If
as a
result of the application of the provisions of this Section
3.9(a),
any
proceeds of Collateral or other payments are applied to Revolving Loans that
are
LIBOR Loans, such application shall be treated as a prepayment of such LIBOR
Loans and CIT shall be entitled to the costs and fees provided for in
Section
8.10
hereof.
(b) If
an
Event of Default shall have occurred and be continuing, CIT may apply all
Proceeds of Collateral and all other payments received by CIT to the payment
of
the Obligations in such manner and in such order as CIT may elect in its sole
discretion. If as a result of the application of the provisions of this
Section
3.9(b),
any
Proceeds or payments are applied to loans that are LIBOR Loans, such application
shall be treated as a prepayment of such LIBOR Loans and CIT shall be entitled
to the costs and fees provided for in Section
8.10
hereof.
3.10. Notwithstanding
anything to the contrary contained in this Section
3,
the
Company hereby acknowledges, confirms and agrees that (a) immediately prior
to
the Restatement Effective Date, the outstanding principal amount of the
Revolving Loans under the Existing Financing Agreement is equal to $2,925,522
(such Indebtedness being hereinafter referred to as the “Existing
Financing Agreement Indebtedness”),
and
(b) such Existing Financing Agreement Indebtedness shall not be
repaid
18
on
the
Restatement Effective Date, but shall constitute, on a dollar for dollar basis,
a portion of the Revolving Line of Credit under this Financing
Agreement.
SECTION
4. Intentionally
Omitted.
SECTION
5. Letters
of Credit. In
order
to assist the Company in establishing or opening Letters of Credit with an
Issuing Bank, the Company has requested that CIT join in the applications for
such Letters of Credit, and/or guarantee payment or performance of such Letters
of Credit and any drafts or acceptances thereunder through the issuance of
one
or more Letter of Credit Guaranties, thereby lending CIT's credit to the
Company, and CIT has agreed to do so. These Letter of Credit Guaranties and
related arrangements shall be provided by CIT subject to satisfaction of the
conditions set forth in Section 2 hereof and the terms and conditions set forth
below.
5.1. Within
the Revolving Line of Credit and subject to sufficient Availability, CIT shall
assist the Company in obtaining Letters of Credit in an aggregate undrawn amount
outstanding at any time not to exceed the Letter of Credit Sub-Line. The term,
form and purpose of each Letter of Credit and all documentation in connection
therewith, and any amendments, modifications or extensions thereof, must be
mutually acceptable to CIT, the Issuing Bank and the Company, provided
that the
Company shall not request a Letter of Credit to support the purchase of domestic
Inventory or to secure present or future indebtedness owed to suppliers of
domestic Inventory. Notwithstanding any other provision of this Financing
Agreement to the contrary, if a Default or an Event of Default shall have
occurred and be continuing, CIT's assistance in connection with any Letter
of
Credit shall be in CIT's sole discretion.
5.2. The
Company hereby authorizes CIT, without notice to the Company, to charge the
Revolving Loan Account with the amount of all indebtedness, liabilities and
obligations of any kind incurred by CIT under a Letter of Credit Guaranty,
including the charges of an Issuing Bank, as such indebtedness, liabilities
and
obligations are charged to or paid by CIT, or, if earlier, upon the occurrence
of an Event of Default. Any amount charged to the Revolving Loan Account shall
be deemed a Chase Bank Rate Loan hereunder and shall incur interest at the
rate
provided in Section
8.1
of this
Financing Agreement. The Company confirms that any charges which CIT may make
to
the Revolving Loan Account as provided herein will be made as an accommodation
to the Company and solely at CIT’s discretion.
5.3. The
Company unconditionally indemnifies CIT and holds CIT harmless from any and
all
loss, claim or liability incurred by CIT arising from any transactions or
occurrences relating to Letters of Credit established or opened for the
Company’s account, the Collateral relating thereto and any drafts or acceptances
thereunder, and all Obligations thereunder, including any such loss, claim
or
liability arising from any error, omission, negligence, misconduct or other
action taken by an Issuing Bank, other than for any such loss, claim or
liability arising out of the gross negligence or willful misconduct by CIT.
This
indemnity shall survive the termination of this Financing Agreement and the
repayment of the Obligations.
5.4. CIT
shall
not be responsible for: (a) the
existence, character, quality, quantity, condition, packing, value or delivery
of the goods purporting to be represented by any documents relating to any
Letter of Credit; (b) any
difference or variation in the character, quality, quantity, condition, packing,
value or delivery of the goods from that expressed in such documents;
(c) the
validity, sufficiency or genuineness of such documents or of any endorsements
thereon, even if such documents should in fact prove to be in any or all
respects invalid, insufficient, fraudulent or forged; (d) the
time,
place, manner or order in which shipment is made; (e) partial
or incomplete shipment, or failure or omission to ship any or all of the goods
referred to in the Letters of Credit or documents relating thereto; (f) any
deviation from
19
instructions;
(g) delay, default, or fraud by the shipper and/or anyone else in connection
with the goods or the shipping thereof; or (h) any
breach of contract between the shipper or vendors and the Company.
5.6. The
Company agrees that any action taken by CIT, if taken in good faith, or any
action taken by the Issuing Bank of whatever nature, under or in connection
with
the Letters of Credit, the Letter of Credit Guaranties, drafts or acceptances
relating to Letters of Credit, or the goods subject thereto, shall be binding
on
the Company and shall not result in any liability whatsoever of CIT to the
Company, except for any liability arising out of the gross negligence or willful
misconduct by CIT. CIT shall have the full right and authority, in CIT’s name,
to (a) clear and resolve any questions of non-compliance of documents, (b)
give
any instructions as to acceptance or rejection of any documents or goods, (c)
execute any and all steamship or airway guaranties (and applications therefor),
indemnities or delivery orders, (d) grant any extensions of the maturity of,
time of payment for, or time of presentation of, any drafts, acceptances, or
documents, and (e) agree to any amendments, renewals, extensions, modifications,
changes or cancellations of any of the terms or conditions of any of the
applications, the Letters of Credit, the Letter of Credit Guaranties or drafts
or acceptances relating to Letters of Credit. An Issuing Bank shall be entitled
to comply with and honor any and all such documents or instruments executed
by
or received solely from CIT, without any notice to or any consent from the
Company. Notwithstanding
any prior course of conduct or dealing with respect to the foregoing (including
amendments to and non-compliance with any documents, and/or the Company’s
instructions with respect thereto), CIT may exercise its rights under this
Section
5.5
in its
sole but reasonable business judgment. In addition, the Company agrees not
to:
(a) at any time, without the prior written consent of CIT (which consent shall
not be unreasonably withheld) (i) execute any application for steamship or
airway guaranties, indemnities or delivery orders, (ii) grant any extensions
of
the maturity of, time of payment for, or time of presentation of, any drafts,
acceptances or documents, or (iii) agree to any amendments, renewals,
extensions, modifications, changes or cancellations of any of the terms or
conditions of any of the applications, Letters of Credit, drafts or acceptances;
and (b) if an Event of Default shall have occurred and be continuing, (i) clear
and resolve any questions of non-compliance of documents or (ii) give any
instructions as to acceptances or rejection of any documents or
goods.
5.6. [Intentionally
Omitted]
5.8. Upon
any
payments made to an Issuing Bank under a Letter of Credit Guaranty, CIT shall
acquire by subrogation, any rights, remedies, duties or obligations granted
to
or undertaken by the Company to the Issuing Bank in any application for a Letter
of Credit, any standing agreement relating to Letters of Credit or otherwise,
all of which shall be deemed to have been granted to CIT and apply in all
respects to CIT and shall be in addition to any rights, remedies, duties or
obligations contained herein.
SECTION
6. Collateral.
6.1. As
security for the prompt payment in full of all Obligations, the Company hereby
pledges and grants to CIT a continuing general lien upon, and security interest
in, all of its:
(a) Accounts;
(b) Inventory;
(c) General
Intangibles;
(d) Documents
of Title;
(e)
Other
Collateral;
20
(f) Equipment;
(g) Gemini
Receivables and the Gemini Service Agreement; and
(h) TBV
Receivables and the TBV Service Agreement.
Anything
contained in this Financing Agreement to the contrary notwithstanding, the
foregoing grant shall not include any contract, lease, permit, license, charter,
or license agreement covering real or personal property of the Company if (x)
under the terms of such contract, lease, permit, license, charter, or license
agreement, or applicable law with respect thereto, the
grant
of a security interest or lien therein or
collateral assignment of rights, warranties or interests therein, requires
the consent of the other party to such contract, lease, permit, license, charter
or license agreement or is prohibited as a matter of law or under the terms
of
such contract, lease, permit, license, charter, or license agreement, and (y)
such prohibition has not been waived or the consent thereto of the other party
to such contract, lease, permit, license, charter, or license agreement has
not
been obtained; provided,
that
the foregoing exclusion (1) shall not apply if any described prohibition is
unenforceable under the UCC or other applicable law, (2) shall not apply when
such prohibition is no longer in effect, and (3) shall not limit, impair, or
otherwise affect CIT’s continuing security interests in and liens upon any
rights or interests of the Company in or to (I) monies due or to become due
under any described contract, lease, permit, license, charter, or license
agreement (including any Accounts), or (II) any proceeds from the sale, license,
lease, or other disposition of any such contract, lease, permit, license,
charter, or license agreement.
6.2. The
security interests granted hereunder shall extend and attach to:
(a) All
Collateral which is owned by the Company or in which the Company has any
interest, whether held by the Company or others for its account, and, if any
Collateral is Equipment, whether the Company’s interest in such Equipment is as
owner, finance lessee or conditional vendee; and
(b) All
Equipment, whether the same constitutes personal property or fixtures,
including, but without limiting the generality of the foregoing, all dies,
jigs,
tools, benches, molds, tables, accretions, component parts thereof and additions
thereto, as well as all accessories, motors, engines and auxiliary parts used
in
connection with, or attached to, the Equipment.
6.3. The
Company hereby agrees to immediately forward any and all proceeds of Collateral
to the Depository Account, and to hold any such proceeds (including any notes
and instruments), in trust for CIT pending delivery to CIT.
6.4. The
Company agrees at its own cost and expense to keep the Equipment in as good
and
substantial repair and condition as the same is now or at the time the lien
and
security interest granted herein shall attach thereto, reasonable wear and
tear
excepted, making any and all repairs and replacements when and where necessary.
The Company also agrees to safeguard, protect and hold all Equipment in
accordance with the terms hereof and subject to CIT’s security interest. Any
sale, exchange or other disposition of any Equipment shall be made by the
Company only with CIT’s prior written consent. Upon the sale, exchange, or other
disposition of the Equipment, as herein provided, the security interest provided
for herein shall, without break in continuity and without further formality
or
act,
21
continue
in, and attach to, all proceeds, including any instruments for the payment
of
money, Accounts, documents of title, shipping documents, chattel paper and
all
other cash and non cash proceeds of such sales, exchange or disposition. As
to
any such sale, exchange or other disposition, CIT shall have all of the rights
of an unpaid seller, including stoppage in transit, replevin, rescission and
reclamation.
6.5. The
rights and security interests granted to CIT hereunder are to continue in full
force and effect, notwithstanding the termination of this Financing Agreement
or
the fact that the Revolving Loan Account may from time to time be temporarily
in
a credit position, until the final payment in full to CIT of all Obligations
and
the termination of this Financing Agreement. Any delay, or omission by CIT
to
exercise any right hereunder shall not be deemed a waiver thereof, or be deemed
a waiver of any other right, unless such waiver shall be in writing and signed
by CIT. 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.
6.6. Notwithstanding
CIT’s security interest in the Collateral and to the extent that the Obligations
are now or hereafter secured by any assets or property other than the Collateral
or by the guarantee, endorsement, assets or property of any other person, CIT
shall have the right in its sole discretion to determine which rights, liens,
security interests or remedies CIT shall at any time pursue, foreclose upon,
relinquish, subordinate, modify or take any other action with respect to,
without in any way modifying or affecting any of them, or any of CIT’s rights
hereunder.
6.7. Any
balances to the credit of the Company and any other property or assets of the
Company in the possession or control of CIT may be held by CIT as security
for
any Obligations and applied in whole or partial satisfaction of such Obligations
when due. The liens and security interests granted herein, and any other lien
or
security interest CIT may have in any other assets of the Company, shall secure
payment and performance of all now existing and future Obligations. CIT may
in
its discretion charge any or all of the Obligations to the Revolving Loan
Account when due.
6.8. The
Company possesses all General Intangibles and rights thereto necessary to
conduct its business as conducted as of the Original Closing Date and the
Company shall maintain its rights in, and the value of, the foregoing in the
ordinary course of its business, including, without limitation, by making timely
payment with respect to any applicable licensed rights. The Company shall
deliver to CIT, and/or shall cause the appropriate party to deliver to CIT,
from
time to time such pledge or security agreements with respect to General
Intangibles (now or hereafter acquired) of the Company and its subsidiaries
as
CIT shall require to obtain valid first liens thereon. In furtherance of the
foregoing, the Company shall provide timely notice to CIT of any additional
Patents, Trademarks, tradenames, service marks, Copyrights, brand names, trade
names, logos and other trade designations acquired or applied for subsequent
to
the Original Closing Date and the Company shall execute such documentation
as
CIT may reasonably require to obtain and perfect its lien thereon. The Company
hereby confirms that it shall deliver, or cause to be delivered, any pledged
stock issued subsequent to the Original Closing Date to CIT in accordance with
the applicable terms of the Pledge Agreement and prior to such delivery, shall
hold any such stock in trust for CIT. As additional Collateral hereunder, the
Company hereby irrevocably grants to CIT a royalty-free, non-exclusive license
in the General Intangibles, including tradenames, Trademarks, Copyrights,
Patents, licenses, and any other proprietary and intellectual property rights
and any and all right, title and interest in any of the foregoing.
6.9. The
Company agrees to deliver to CIT, promptly following its request therefore,
possession of all originals of all negotiable documents, instruments and chattel
paper (duly endorsed in blank, if requested by CIT).
6.10.
The Company shall not amend,
otherwise modify or waive any of its rights under the TBV Service Agreement
or
the Gemini Service Agreement without the prior written consent of CIT.
In
22
addition,
the Company shall deliver to CIT, (a) concurrently upon the receipt or delivery
thereof, copies of all notices, agreements or documents delivered pursuant
to
the TBV Service Agreement and/or the Gemini Service Agreement, and (b) notice
of
the breach of any warranty, representation or covenant contained therein by
the
Company, TBV and/or Gemini, as the case may be, or any other party
thereto.
SECTION
7. Representations,
Warranties and Covenants
7.1. The
Company warrants and represents that (i) Schedule 1 hereto correctly and
completely sets forth the Company’s (A) chief executive office, (B) Collateral
locations, (C) tradenames, and (D) all the other information listed on said
Schedule; (ii) except for the Permitted Encumbrances, after filing of financing
statements in the applicable filing clerks office at the locations set forth
in
Schedule 1, this Financing Agreement creates a valid, perfected and first
priority security interest in the Collateral and the security interests granted
herein constitute and shall at all times constitute the first and only liens
on
the Collateral; (iii) except for the Permitted Encumbrances, the Company is,
or
will be, at the time additional Collateral is acquired by it, the absolute
owner
of the Collateral with full right to pledge, sell, consign, transfer and create
a security interest therein, free and clear of any and all claims or liens
in
favor of others; (iv) the Company will, at its expense, forever warrant and,
at
CIT’s request, defend the same from any and all claims and demands of any other
person other than a holder of a Permitted Encumbrance; (v) the Company will
not
grant, create or permit to exist, any lien upon, or security interest in, the
Collateral, or any proceeds thereof, in favor of any other person other than
the
holders of the Permitted Encumbrances; and (vi) the Equipment is and will only
be used by the Company in its business and will not be held for sale or lease,
or removed from its premises, or otherwise disposed of by the Company except
as
otherwise permitted in this Financing Agreement.
7.2. The
Company agrees to maintain books and records pertaining to the Collateral in
accordance with GAAP and in such additional detail, form and scope as CIT shall
reasonably require. The Company agrees that CIT or its agents may enter upon
the
Company’s premises at any time during normal business hours, and from time to
time in its reasonable business judgment, for the purpose of inspecting the
Collateral and any and all records pertaining thereto. The Company irrevocably
authorizes all accountants and third parties to disclose and deliver directly
to
CIT, at the Company’s expense, all financial statements and information, books,
records, work papers, management reports and other information generated by
them
or in their possession regarding the Company and/or the Collateral. The Company
agrees to afford CIT thirty (30) days prior written notice of any change in
the
location of any Collateral, other than to locations, that as of the Original
Closing Date, are known to CIT and at which CIT has filed financing statements
and otherwise fully perfected its liens thereon. The Company is also to advise
CIT promptly, in sufficient detail, of any material adverse change relating
to
the type, quantity or quality of the Collateral or on the security interests
granted to CIT therein.
7.3. The
Company agrees to: (a) execute and deliver to CIT, from time to time, solely
for
CIT’s convenience in maintaining a record of the Collateral, such written
statements, and schedules as CIT may reasonably require, designating,
identifying or describing the Collateral; and (b) provide CIT, on request,
but
no more frequently than semi-annually, an environmental audit report on its
leasehold and fee interests, and its waste disposal practices, which report
shall be (i) at the Company’s expense and otherwise acceptable to CIT and (ii)
not disclose or indicate any material liability (real or potential) stemming
from the Company’s premises, its operations, its waste disposal practices or
waste disposal sites used by the Company. The Company’s failure, however, to
promptly give CIT such statements, or schedules shall not affect, diminish,
modify or otherwise limit CIT’s security interests in the Collateral.
7.4
The Company agrees to comply with the requirements of all state and federal
laws
in order to grant to CIT valid and perfected first security interests in the
Collateral, subject only to the Permitted Encumbrances. CIT is hereby authorized
by the Company to file (including pursuant to the
23
applicable
terms of the UCC) from time to time any financing statements, continuations
or
amendments covering the Collateral. The Company hereby consents to and ratifies
any and all execution and/or filing of financing statements on or prior to
the
Original Closing Date by CIT. The Company agrees to do whatever CIT may
reasonably request, from time to time, by way of: (a) filing notices of liens,
financing statements, amendments, renewals and continuations thereof; (b)
cooperating with CIT’s agents and employees; (c) keeping Collateral records; (d)
transferring proceeds of Collateral to CIT’s possession; and (e) performing such
further acts as CIT may reasonably require in order to effect the purposes
of
this Financing Agreement,
including
but not limited to obtaining control agreements with respect to deposit accounts
and/or Investment Property.
7.5. (a) The
Company agrees to maintain insurance on the Real Estate, Equipment and Inventory
under such policies of insurance, with such insurance companies, in such
reasonable amounts and covering such insurable risks as are at all times
reasonably satisfactory to CIT. All policies covering the Real Estate, Equipment
and Inventory are, subject to the rights of any holders of Permitted
Encumbrances holding claims senior to CIT, to be made payable to CIT, in case
of
loss, under a standard non contributory “mortgagee”, “lender” or “secured party”
clause and are to contain such other provisions as CIT may require to fully
protect CIT’s interest in the Real Estate, Inventory and Equipment and to any
payments to be made under such policies. All original policies or true copies
thereof are to be delivered to CIT, premium prepaid, with the loss payable
endorsement in CIT’s favor, and shall provide for not less than thirty (30) days
prior written notice to CIT of the exercise of any right of cancellation. At
the
Company’s request, or if the Company fails to maintain such insurance, CIT may
arrange for such insurance, but at the Company’s expense and without any
responsibility on CIT’s part for: (i) obtaining the insurance; (ii) the solvency
of the insurance companies; (iii) the adequacy of the coverage; or (iv) the
collection of claims. Upon the occurrence of an Event of Default which is not
waived in writing by CIT, CIT shall, subject to the rights of any holders of
Permitted Encumbrances holding claims senior to CIT, have the sole right, in
the
name of CIT or the Company, to file claims under any insurance policies, to
receive, receipt and give acquittance for any payments that may be payable
thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance
policies.
(b) (i) In
the event any part of the Company’s Real Estate or Equipment is damaged by fire
or other casualty and the Insurance Proceeds for such damage or other casualty
is less than or equal to $100,000.00, CIT shall promptly apply such Proceeds
to
reduce the Company’s outstanding balance in the Revolving Loan Account. Upon the
occurrence of a Default or Event of Default, CIT may apply Insurance Proceeds
to
the Obligations in such manner as it may deem advisable in its sole discretion;
and
(ii) In
the
event any part of the Company’s Real Estate or Equipment is damaged by fire or
other casualty, and the Insurance Proceeds is greater than $100,000.00, CIT
may,
subject to the rights of any holders of Permitted Encumbrances holding claims
senior to CIT, apply the Insurance Proceeds to the payment of the Obligations
in
such manner and in such order as CIT may reasonably elect.
7.6. The
Company agrees to pay, when due, all Taxes, including sales taxes, assessments,
claims and other charges lawfully levied or assessed upon the Company or the
Collateral unless such Taxes are being diligently contested in good faith by
the
Company or TBV (in respect of the TBV Receivables) or Gemini (in respect of
the
Gemini Receivables) by appropriate proceedings and adequate reserves are
established in accordance with GAAP. Notwithstanding the foregoing, if any
lien
shall be filed or claimed thereunder (a) for Taxes due the United States of
America, or (b) which in CIT’s opinion might create a valid obligation having
priority over the rights granted to CIT herein (exclusive of Real
24
Estate),
such lien shall not be deemed to be a Permitted Encumbrance hereunder and the
Company shall immediately pay or cause to be paid such tax and remove the lien
of record. If the Company fails to do so promptly, then at CIT’s election, CIT
may (i) create an Availability Reserve in such amount as it may deem appropriate
in its business judgment, or (ii) upon the occurrence of a Default or Event
of
Default, imminent risk of seizure, filing of any priority lien, forfeiture,
or
sale of the Collateral, pay Taxes on the Company’s behalf, and the amount
thereof shall be an Obligation secured hereby and due on demand.
7.7. The
Company: (a) agrees to comply with all acts, rules, regulations and orders
of
any legislative, administrative or judicial body or official, which the failure
to comply with would have a material and adverse impact on the Collateral,
or
any material part thereof, or on the business or operations of the Company,
provided that the Company may contest any acts, rules, regulations, orders
and
directions of such bodies or officials in any reasonable manner which will
not,
in CIT’s reasonable opinion, materially and adversely effect CIT’s rights or
priority in the Collateral; (b) agrees to comply with all environmental
statutes, acts, rules, regulations or orders as presently existing or as adopted
or amended in the future, applicable to the Collateral, the ownership and/or
use
of its real property and operation of its business, which the failure to comply
with would have a material and adverse impact on the Collateral, or any material
part thereof, or on the operation of the business of the Company; and (c) shall
not be deemed to have breached any provision of this Paragraph 7.7 if (i) the
failure to comply with the requirements of this Paragraph 7.7 resulted from
good
faith error or innocent omission, (ii) the Company promptly commences and
diligently pursues a cure of such breach, and (iii) such failure is cured within
(30) days following the Company’s receipt of notice of such failure, or if such
cannot in good faith be cured within thirty (30) days, then such breach is
cured
within a reasonable time frame based upon the extent and nature of the breach
and the necessary remediation, and in conformity with any applicable consent
order, consensual agreement and applicable law.
7.8. Until
termination of this Financing Agreement and payment and satisfaction of all
Obligations due hereunder, the Company agrees that, unless CIT shall have
otherwise consented in writing, the Company will furnish to CIT: (a) within
ninety (90) days after the end of each Fiscal Year of the Company, (i) an
audited Consolidated Balance Sheet, with a Consolidating Balance Sheet attached
thereto, as at the close of such year, and statements of profit and loss, cash
flow and reconciliation of surplus of the Company and its consolidated
subsidiaries for such year, audited by independent public accountants selected
by the Company and satisfactory to CIT, (ii) comparable information adjusted
to
reflect changes from the prior Fiscal Year and with the projections delivered
pursuant to this Paragraph, in each case certified by an authorized financial
or
accounting officer of the Company; and (iii) a management discussion and
analysis regarding the Company’s actual results versus the prior Fiscal Year
results and the projections provided pursuant to this Paragraph; (b) within
forty-five (45) days after the end of each Fiscal Quarter a Consolidated Balance
Sheet and Consolidating Balance Sheet as at the end of such period and
statements of profit and loss, cash flow and surplus of the Company and its
consolidated subsidiaries, together with comparable information adjusted to
reflect any changes for the corresponding period of the previous Fiscal Year
and
with the projections delivered pursuant to this Paragraph, in each case
certified by an authorized financial or accounting officer of the Company;
(c)
within thirty (30) days after the end of each month a Consolidated Balance
Sheet
as at the end of such period and statements of profit and loss, cash flow and
surplus of the Company and all subsidiaries for such period, certified by an
authorized financial or accounting officer of the Company; (d) concurrently
after the filing or sending thereof, all reports, financial statements and
registration statements filed by the Company or any of its subsidiaries with
the
Securities and Exchange Commission or any securities exchange and (e) from
time
to time, such further information regarding the business affairs and financial
condition of the Company and its consolidated subsidiaries as CIT may reasonably
request, including, without limitation (i) the accountant’s management practice
letter and (ii) within thirty (30) days prior to the end of each Fiscal Year
annual income statement, balance sheet, cash flow and Availability projections
for the next following Fiscal Year, on a monthly basis, together with the
assumptions (in reasonable detail) relating
25
thereto,
all in a form satisfactory to CIT. Each financial statement which the Company
is
required to submit hereunder must be accompanied by an officer’s certificate,
signed by the President, Vice President, Controller, or Treasurer, pursuant
to
which any one such officer must certify that: (w) the financial statement(s)
fairly and accurately represent(s) the Company’s financial condition at the end
of the particular accounting period, as well as the Company’s operating results
during such accounting period, subject to year end audit adjustments; (x) during
the particular accounting period: (A) no Default or Event of Default has
occurred and is continuing under this Financing Agreement, provided,
however,
that if
any such officer has knowledge that any such Default or Event of Default, has
occurred during such period, the existence of and a detailed description of
same
shall be set forth in such officer’s certificate; (B) the Company has not
received any notice of cancellation with respect to its property insurance
policies; (C) the Company has not received any notice that could result in
a
material adverse effect on the value of the Collateral taken as a whole; and
(D)
the exhibits attached to such financial statement(s) constitute detailed
calculations showing compliance with all financial covenants contained in this
Financing Agreement and; (y) the Company has paid, as and when due, all monthly
premium payments and quarterly lost fund payments as required by its insurance
carrier in respect of workers’ compensation claims; and (z) the Company and, to
the Company’s knowledge, the other parties to the TBV Service Agreement have
complied with all the terms of the TBV Service Agreement and the other parties
to the Gemini Service Agreement have complied with all the terms of the Gemini
Service Agreement (and, if such non-compliance has occurred, provide a
reasonably detailed explanation regarding the same and the steps taken to
address such non-compliance).
7.9. Until
termination of this Financing Agreement and payment and satisfaction of all
Obligations hereunder, the Company agrees that, without the prior written
consent of CIT, except as otherwise herein provided, the Company will
not:
(a) Mortgage,
assign, pledge, transfer or otherwise permit any lien, charge, security
interest, encumbrance or judgment, (whether as a result of a purchase money
or
title retention transaction, or other security interest, or otherwise) to exist
on any of the Company’s Collateral or any other assets, whether now owned or
hereafter acquired, except for the Permitted Encumbrances;
(b) Incur
or
create any Indebtedness other than the Permitted Indebtedness;
(c) Sell,
lease, assign, transfer or otherwise dispose of (i) Collateral, except as
otherwise specifically permitted by this Financing Agreement, or (ii) either
all
or substantially all of the Company’s assets, which do not constitute
Collateral;
(d) Merge,
consolidate or otherwise alter or modify its corporate name, principal place
of
business, structure, or existence, re-incorporate or re-organize, or enter
into
or engage in any operation or activity materially different from that presently
being conducted by the Company, except that the Company may change its corporate
name or address; provided that: (i) the Company shall give CIT thirty (30)
days
prior written notice thereof, and (ii) the Company shall execute and deliver,
prior to or simultaneously with any such action, any and all documents and
agreements requested by CIT to confirm the continuation and preservation of
all
security interests and liens granted to CIT hereunder;
(e) Assume,
guarantee, endorse, or otherwise become liable upon the obligations of any
person, firm, entity or corporation, except by the endorsement of negotiable
instruments for deposit or collection or similar transactions in the ordinary
course of business;
26
(f)
Declare or pay any dividend or distributions of any kind on, or purchase,
acquire, redeem or retire, any of the capital stock or equity interest, of
any
class whatsoever, whether now or hereafter outstanding, except that the Company
may declare and pay dividends in the ordinary course of its business with
respect to its Series A Convertible Preferred Stock, provided
that (i)
the aggregate amount of such dividends does not exceed in any Fiscal Quarter
$41,000 and (ii) immediately before and after giving effect to the making of
any
such dividend (A) no Default or Event of Default shall have occurred and be
continuing, (B) the Company shall be in compliance with Paragraph 7.10 of
Section
7
and (c)
the Company shall have at least $500,000.00 in Availability immediately before
and after giving effect to the making of each such dividend;
(g) Make
any
advance or loan to, or any investment in, any firm, entity, person or
corporation, or purchase or acquire all or substantially all of the stock or
assets of any entity, person or corporation, except that the Company may make
loans to TBV, pursuant to the terms of the TBV Service Agreement and to Gemini,
pursuant to the terms of the Gemini Service Agreement, on terms and in an amount
satisfactory to CIT; or
(h) Pay
any
management, consulting or other similar fees to any person, corporation or
other
entity affiliated with the Company.
7.10. If
the
average Availability during any calendar month is less than $2,000,000, then,
on
and after any such month until the termination of this Financing Agreement
and
payment and satisfaction in full of all Obligations hereunder, the Company
will,
as of the last day of each month, maintain a Fixed Charge Coverage Ratio of
not
less than (a) 1.10:1:00 for the twelve (12) month period ending each month
during the period commencing on the Restatement
Effective Date
and
ending September 30, 2006, and (b) 1.15:1.00 for the twelve (12) month period
ending each month thereafter.
7.11. The
Company agrees to advise CIT in writing of: (a) all expenditures (actual or
anticipated) in excess of $150,000.00 from the budgeted amount therefor in
any
Fiscal Year for (i) environmental clean up, (ii) environmental compliance or
(iii) environmental testing and the impact of said expenses on the Company’s
Working Capital; and (b) any notices the Company receives from any local, state
or federal authority advising the Company of any environmental liability (real
or potential) stemming from the Company’s operations, its premises, its waste
disposal practices, or waste disposal sites used by the Company and to provide
CIT with copies of all such notices if so required.
7.12. The
Company hereby agrees to indemnify and hold harmless CIT and its officers,
directors, employees, attorneys and agents (each an “Indemnified Party”) from,
and holds each of them harmless against, any and all losses, liabilities,
obligations, claims, actions, damages, costs and expenses (including attorney’s
fees) and any payments made by CIT pursuant to any indemnity provided by CIT
with respect to or to which any Indemnified Party could be subject insofar
as
such losses, liabilities, obligations, claims, actions, damages, costs, fees
or
expenses with respect to the Loan Documents, including without limitation those
which may arise from or relate to: (a) the Depository Account, the Blocked
Accounts, the lockbox and/or any other depository account and/or the agreements
executed in connection therewith; and (b) any and all claims or expenses
asserted against CIT as a result of any environmental pollution, hazardous
material or environmental clean up relating to the Real Estate; or any claim
or
expense which results from the Company’s operations (including, but not limited
to, the Company’s off site disposal practices) and use of the Real Estate, which
CIT may sustain or incur (other than solely as a result of the physical actions
of CIT on the Company’s premises which are determined to constitute gross
negligence or willful misconduct by a court of competent jurisdiction), all
whether through the alleged or actual negligence of such person or otherwise,
except and to the extent that the same results solely and directly from the
gross negligence or willful misconduct of such Indemnified Party as finally
determined by a court of competent jurisdiction. The Company hereby agrees
that
this indemnity shall survive termination of this Financing Agreement, as well
as
payments of Obligations which may be due hereunder. CIT may, in its sole
business judgment, establish such Availability Reserves with respect thereto
as
it may deem advisable under the circumstances and, upon any termination hereof,
hold such reserves as cash reserves for any such contingent
liabilities.
27
7.13. Without
the prior written consent of CIT, the Company agrees that it will not enter
into
any transaction, including, without limitation, any purchase, sale, lease,
loan
or exchange of property with any subsidiary or affiliate of the Company;
provided
that,
except as otherwise set forth in this Financing Agreement, the Company may
enter
into sale and service transactions in the ordinary course of its business and
pursuant to the reasonable requirements of the Company, and upon standard terms
and conditions and fair and reasonable terms, no less favorable to the Company
than the Company could obtain in a comparable arms length transaction with
an
unrelated third party; provided
further
that no Default or Event of Default exists or will occur hereunder prior to
and
after giving effect to any such transaction.
7.14. Any
replacement of the Chief Financial Officer and/or Chief Operating Officer of
the
Company shall be reasonably satisfactory to CIT.
7.15. The
Company agrees to notify CIT of all worker’s compensation claims in an amount of
$150,000.00 or more (whether or not covered by insurance).
SECTION
8. Interest,
Fees and Expenses
8.1. (a) Interest
on the outstanding principal balance of the Revolving Loans that are Chase
Bank
Rate Loans shall accrue at a rate per annum equal to the Chase Bank Rate
plus
the
Applicable Margin. Interest on Revolving Loans that are Chase Bank Rate Loans
shall be due and payable on the first day of each month and shall be based
on
the average net principal balance of such Revolving Loans at the close of each
day during the immediately preceding month. In the event of any change in the
Chase Bank Rate, the rate set forth in the first sentence of this Section
8.1
shall
change, effective as of the date of such change, so as to remain equal to the
new Chase Bank Rate plus
the
Applicable Margin. On each Revolving Loan (or portion of a Revolving Loan)
that
is a LIBOR Loan, interest shall be due and payable on the LIBOR Interest Payment
Date and shall accrue at a rate per annum equal to the Applicable Margin
plus
the
applicable LIBOR on the outstanding principal balance of such LIBOR Loan. All
interest rates shall be calculated based on a 360-day year and actual days
elapsed.
CIT
shall be entitled to charge the Revolving Loan Account at the rate provided
for
herein when due until all Obligations have been paid in full.
(b) Notwithstanding
any provision to the contrary contained in this Section
8,
in the
event that the outstanding Revolving Loans plus the undrawn amount of all
outstanding
Letters
of Credit exceed the lesser of (i) the Revolving Line of Credit or (ii) the
Borrowing Base: (A) as a result of Revolving Loans advanced by CIT at the
request of the Company (herein “Requested
Overadvances”),
for
any one (1) or more days in any month, or (ii) for any other reason whatsoever
(herein “Other
Overadvances”)
and
such Other Overadvances continue for five (5) or more days in any month, the
average net balance of all Revolving Loans for such month shall bear interest
at
the Overadvance Rate.
(c) Upon
and
after the occurrence of an Event of Default (a) after the giving of any required
notice by CIT in accordance with the provisions of Section
10,
Paragraph 10.2 hereof, all Obligations shall bear interest at the Default Rate
of Interest and (b) at
CIT’s
election at any time thereafter, interest on each outstanding LIBOR Loan shall
be due and payable on the first day of each month, notwithstanding the Interest
Period with respect thereto.
(d) In
consideration of the issuance of any Letter of Credit Guaranty by CIT or other
assistance of CIT in obtaining Letters of Credit pursuant to Section
5
hereof,
the Company agrees to pay to CIT a Letter of Credit Guaranty Fee equal to two
percent (2%) per annum on the face amount of each Letter of Credit. All Letter
of Credit Guaranty Fees shall be due and payable monthly on the first day of
each month.
28
(e) The
Company agrees to reimburse CIT for any and all charges, fees, commissions,
costs and expenses charged to CIT for the Company’s account by an Issuing Bank
in connection with, or arising out of, Letters of Credit or out of transactions
relating thereto, when charged to or paid by CIT, or as may be due upon any
termination of this Financing Agreement.
8.2. The
Company shall reimburse or pay CIT, as the case may be, for: (a) all Out of
Pocket Expenses; (b) any applicable Documentation Fee; and (c) without the
payment of such constituting a waiver by CIT of a Default or Event of Default
hereunder, a non-refundable fee of $250.00 for each document or report requested
by, but not promptly delivered, to CIT.
8.3. Upon
the
last Business Day of each month, commencing on December 31, 2003, the Company
shall pay to CIT (i) the Revolving Line of Credit Fee, and (ii) interest on
the
Collection Days. Interest will be computed at the rate, and in the manner,
set
forth in Paragraph 8.1 of this Financing Agreement.
8.4. [Intentionally
Omitted]
8.5. On
each
anniversary of the Original Closing Date the Company shall pay to CIT the
Administrative Management Fee in the amount of $25,000.00, which shall be deemed
fully earned on the Original Closing Date.
8.6. The
Company shall pay CIT’s standard charges and fees for CIT’s personnel used by
CIT for reviewing the books and records of the Company and for verifying,
testing, protecting, safeguarding, preserving or disposing of all or any part
of
the Collateral (which fees shall be in addition to the Administrative Management
Fee and any Out-of-Pocket Expenses, and are currently billed at the rate of
$850.00 per examiner per day).
8.7. The
Company hereby authorizes CIT to charge the Revolving Loan Account with the
amount of all payments due hereunder as such payments become due (including,
without limitation, CIT’s standard charges for wire transfers).
The
Company confirms that any charges which CIT may so make to the Revolving Loan
Account as herein provided will be made as an accommodation to the Company
and
solely at CIT’s discretion.
8.8. In
the
event that CIT or any participant hereunder (or any financial institution which
may from time to time become a participant or lender hereunder) shall have
determined in the exercise of its reasonable business judgment that, subsequent
to the Original Closing Date, any change in applicable law, rule, regulation
or
guideline regarding capital adequacy, or any change in the interpretation or
administration thereof, or compliance by CIT or such participant with any new
request or directive regarding capital adequacy (whether or not having the
force
of law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on CIT’s or such participant’s
capital as a consequence of its obligations hereunder to a level below that
which CIT or such participant could have achieved but for such adoption, change
or compliance (taking into consideration CIT or such participant’s policies with
respect to capital adequacy) by an amount reasonably deemed by CIT or such
participant to be material, then, from time to time, the Company shall pay
no
later than five (5) days following demand to CIT or such participant such
additional amount or amounts as will compensate CIT’s or such participant’s for
such reduction. In determining such amount or amounts, CIT or such participant
may use any reasonable averaging or attribution methods. The protection of
this
Paragraph 8.8 shall be available to CIT or such participant regardless of any
possible contention of invalidity or inapplicability with respect to the
applicable law, regulation or condition. A certificate of CIT or such
participant setting forth such amount or amounts as shall be necessary to
compensate CIT or such participant with respect to this Section
8
and the
calculation thereof when delivered to the Company shall be conclusive on the
Company absent manifest error. Notwithstanding anything in this paragraph to
the
contrary, in the event CIT or such participant has exercised its rights pursuant
to this paragraph, and subsequent thereto determines that the additional amounts
paid by the Company in whole or in part exceed the amount which CIT or such
participant actually required to be made whole, the excess, if any, shall be
returned to the Company by CIT or such participant.
29
8.9. In
the
event that any applicable law, treaty or governmental regulation, or any change
therein or in the interpretation or application thereof, or compliance by CIT
or
such participant with any request or directive (whether or not having the force
of law) from any central bank or other financial, monetary or other authority,
shall:
(a) subject
CIT or such participant to any tax of any kind whatsoever with respect to this
Financing Agreement or change the basis of taxation of payments to CIT or such
participant of principal, fees, interest or any other amount payable hereunder
or under any other documents (except for changes in the rate of tax on the
overall net income of CIT or such participant by the federal government or
the
jurisdiction in which it maintains its principal office);
(b) impose,
modify or hold applicable any reserve, special deposit, assessment or similar
requirement against assets held by, or deposits in or for the account of,
advances or loans by, or other credit extended by CIT or such participant by
reason of or in respect to this Financing Agreement and the Loan Documents,
including (without limitation) pursuant to Regulation D of the Board of
Governors of the Federal Reserve System; or
(c) impose
on
CIT or such participant any other condition with respect to this Financing
Agreement or any other document, and the result of any of the foregoing is
to
increase the cost to CIT or such participant of making, renewing or maintaining
its loans hereunder by an amount that CIT or such participant deems to be
material in the exercise of its reasonable business judgment or to reduce the
amount of any payment (whether of principal, interest or otherwise) in respect
of any of the loans by an amount that CIT or such participant deems to be
material in the exercise of its reasonable business judgment, then, in any
case
the Company shall pay CIT or such participant, within five (5) days following
its demand, such additional cost or such reduction, as the case may be. CIT
or
such participant shall certify the amount of such additional cost or reduced
amount to the Company and the calculation thereof and such certification shall
be conclusive upon the Company absent manifest error.
8.10.
(a) The
Company may elect to use LIBOR as to any Revolving Loans, convert any Chase
Bank
Rate Loan to a new LIBOR Loan or continue any existing LIBOR Loan as a new
LIBOR
Loan on the last day of the Interest Period with respect to such existing LIBOR
Loan, so long as:
(i) no
Default or Event of Default shall have occurred and be continuing on the date
on
which such new LIBOR Loan is requested and on the first day of the Interest
Period for such new LIBOR Loan;
(ii) the
Company requests the new LIBOR Loan no later than three (3) Business Days
preceding the first day of the Interest Period for such new LIBOR Loan (or
three
(3) Business Days prior to the expiration of any Interest Period, in the case
of
a continuation of an existing LIBOR Loan);
30
(iii) if
CIT
requests written confirmation of any new LIBOR Loan from the Company, the
Company shall have signed and returned to CIT any such confirmation on or prior
to the first day of the Interest Period for such new LIBOR Loan;
and
(iv) with
respect to the Interest Period selected by the Company for such new LIBOR Loan,
(x) either JPMorgan Chase Bank provides a LIBOR quote for such Interest Period
or CIT otherwise determines the LIBOR for such Interest Period, as provided
in
the definition of LIBOR, and (y) such Interest Period ends on or before the
Termination Date.
Any
LIBOR
election must be for at least $1,000,000 and if greater, in integral multiples
of $100,000, and there shall be no more than four (4) LIBOR Loans outstanding
at
one time. Elections for LIBOR Loans shall be irrevocable once made. If any
condition for a LIBOR election is not satisfied, then the requested new loan
(or
continuation of an existing LIBOR Loan) shall be made to the Company as a Chase
Bank Rate Loan.
(b) Notwithstanding
any other provision of this Financing Agreement to the contrary, if any law,
regulation, treaty or directive, or any amendment thereto or change in the
interpretation or application thereof, shall make it unlawful for CIT to make
or
maintain any LIBOR Loan, then (x) such LIBOR Loan shall convert automatically
to
a Chase Bank Rate Loan at the end of the applicable Interest Period, or such
earlier date as may be required by such law, regulation, treaty or directive,
and (y) the obliga-tion of CIT thereafter to make or continue LIBOR Loans and
to
convert Chase Bank Rate Loans into LIBOR Loans hereunder shall be suspended
until CIT determines that it is no longer unlawful to make and maintain LIBOR
Loans as contemplated herein. In addition, in the event that, by reason of
any
Regulatory Change, CIT either (x) incurs any material additional costs based
on
or measured by the excess above a specified level of the amount of a category
of
deposits or other liabilities of CIT which includes deposits by reference to
which the interest rate on LIBOR Loans is determined hereunder, or a category
of
extensions of credit or other as-sets of CIT which includes LIBOR Loans, or
(y)
becomes subject to any material restrictions on the amount of such a category
of
liabilities or assets which CIT may hold, then if CIT so elects by notice to
the
Company, the obliga-tion of CIT thereafter to make or continue LIBOR Loans
and
to convert Chase Bank Rate Loans into LIBOR Loans hereunder shall be suspended
until such Regulatory Change ceases to be in effect.
(c) Notwithstanding
any other provision of this Financing Agreement to the contrary, if CIT
determines in the exercise of its reason-able business judgment (which
determination shall be conclusive and binding upon the Company) that by reason
of circumstances affecting the interbank LIBOR market, adequate and reasonable
means do not exist for ascertaining LIBOR applicable to an Interest Period
with
respect to any election of a new LIBOR Loan, CIT shall give written notice
of
such determination to the Company prior to the effective date of such election.
Upon receipt of such notice, the Company may cancel the Company’s request for
such new LIBOR Loan, in which case the requested LIBOR Loan shall be made as
a
Chase Bank Rate Loan. Until such notice has been withdrawn by CIT, the
obliga-tion of CIT thereafter to make or continue LIBOR Loans and to convert
Chase Bank Rate Loans into LIBOR Loans hereunder shall be suspended until CIT
determines that adequate and reasonable means again exist for ascertaining
LIBOR
applicable to an Interest Period with respect to any election of a new LIBOR
Loan.
31
(d) The
Company hereby agrees to pay to CIT, on demand, any ad-ditional amounts
necessary to compensate CIT for any costs incurred by CIT in making any
conversions from LIBOR Loans to Chase Bank Rate Loans in accordance with this
Section
8.10,
including, without limitation, breakage costs provided for in Section
8.10(e)
of this
Financing Agreement.
(e) In
the
event that the Company (i) pays all or any part of the principal amount of
a
LIBOR Loan on a date prior to the last day of an Interest Period for such LIBOR
Loan, (ii) fails to borrow a LIBOR Loan, or fails to convert a Chase Bank Rate
Loan to a LIBOR Loan, on the date for such borrowing or conversion specified
in
the relevant request to CIT, or (iii) fails to pay to CIT the principal of,
or
interest on, any LIBOR Loan when due, the Company agrees to pay to CIT (and
any
financial institution that purchases from CIT a participation in the loans
made
by CIT to the Company hereunder), on demand, the greater of (x) such amount
as
shall compensate CIT and such financial institution for any actual loss, cost
or
expense that CIT or such financial institution may sustain or incur as a result
of such event (including, without limitation, any interest or fees payable
by
CIT or such financial institution to lenders or depositors of funds obtained
by
CIT or such financial institution in order to make or maintain any LIBOR Loans
under this Financing Agreement), and (y) in the case of a prepayment of any
LIBOR Loan, the excess (if any) of the amount of interest that would have
accrued on such loan from the first day of the Interest Period to the date
of
prepayment, assuming that such loan was a Chase Bank Rate Loan, over the amount
of interest that actually accrued on such loan from the first day of the
Interest Period to the date of prepayment. The determination by CIT of the
amount of any such loss, cost or expense described in clause (x) of the
preceding sentence, when set forth in a written notice to the Company containing
CIT’s calculations thereof in reasonable detail, shall be conclusive and binding
upon the Company, in the absence of manifest error.
8.11. For
purposes of this Financing Agreement and Section
8
thereof,
any reference to CIT shall include any financial institution which may become
a
participant or co-lender subsequent to the Original Closing Date.
SECTION
9. Powers
The
Company hereby constitutes CIT, or any person or agent CIT may designate, as
its
attorney in fact, at the Company’s cost and expense, to exercise all of the
following powers, which being coupled with an interest, shall be irrevocable
until all Obligations to CIT have been paid in full:
(a) To
receive, take, endorse, sign, assign and deliver, all in the name of CIT or
the
Company, any and all checks, notes, drafts, and other documents or instruments
relating to the Collateral;
(b) To
receive, open and dispose of all mail addressed to the Company and to notify
postal authorities to change the address for delivery thereof to such address
as
CIT may designate;
(c) To
request from customers indebted on Accounts at any time, in the name of CIT
information concerning the amounts owing on the Accounts;
32
(d) To
request from customers indebted on Accounts at any time, in the name of the
Company, in the name of certified public accountant designated by CIT or in
the
name of CIT’s designee, information concerning the amounts owing on the
Accounts;
(e) To
transmit to customers indebted on Accounts notice of CIT’s interest therein and
to notify customers indebted on Accounts to make payment directly to CIT for
the
Company’s account; and
(f) To
take
or bring, in the name of CIT or the Company, all steps, actions, suits or
proceedings deemed by CIT necessary or desirable to enforce or effect collection
of the Accounts.
Notwithstanding
anything hereinabove contained to the contrary, the powers set forth in (b)
and
(f) above may only be exercised during the continuance of an Event of
Default.
SECTION
10. Events
of Default and Remedies
10.1. Notwithstanding
anything hereinabove to the contrary, CIT may terminate this Financing Agreement
immediately upon the occurrence of any of the following Events of
Default:
(a) cessation
of the business of the Company or any Guarantor, or the calling of a meeting
of
the creditors of the Company or any Guarantor, for purposes of compromising
the
debts and obligations of the Company or any Guarantor;
(b) the
failure of the Company or any Guarantor to generally pay its debts as they
mature;
(c) (i)
the
commencement by the Company or any Guarantor of any bankruptcy, insolvency,
arrangement, reorganization, receivership or similar proceedings under any
federal or state law; (ii) the commencement against the Company or any Guarantor
of any bankruptcy, insolvency, arrangement, reorganization, receivership or
similar proceeding under any federal or state law by creditors of the Company
or
any Guarantor, provided that such Default shall not be deemed an Event of
Default if such proceeding is controverted within ten (10) days and dismissed
and vacated within thirty (30) days of commencement except, in the event that
any of the actions sought in any such proceeding shall occur or the Company
or
any Guarantor shall take action to authorize or effect any of the actions in
any
such proceeding; or (iii) the commencement (x) by the
Company’s or any Guarantor’s subsidiaries, or any one of them, of any
bankruptcy, insolvency, arrangement, reorganization, receivership or similar
proceeding under any applicable state law, or (y) against the
Company’s or any Guarantor’s subsidiaries, or any one of them, of any
involuntary bankruptcy, insolvency, arrangement, reorganization, receivership
or
similar proceeding under applicable law, provided that such Default shall not
be
deemed an Event of Default if such proceeding is controverted within ten (10)
days and dismissed or vacated within thirty (30) days of commencement, except
in
the event that any of the actions sought in any such proceeding shall occur
or
the Company’s or any Guarantor’s subsidiaries, or any one of them, shall take
action to authorize or effect any of the actions in any such
proceeding;
(d) breach
by
the Company of any warranty, representation or covenant contained herein (other
than those referred to in sub paragraph (e) below) or in any other written
agreement between the Company or CIT, provided that such Default by the Company
of any of the warranties, representations or covenants referred in this clause
(d) shall not be deemed to be an Event of Default unless and until such Default
shall remain unremedied to CIT’s satisfaction for a period of ten (10) days from
the date of such breach;
33
(e) breach
by
the Company of any warranty, representation or covenant of Paragraphs 3.3 (other
than the fourth sentence of Paragraph 3.3) and 3.4 of Section
3
hereof;
Paragraphs 6.3, 6.4 (other than the first sentence of Paragraph 6.4), and 6.10
of Section
6
hereof;
Paragraphs 7.1, 7.5, 7.6, and 7.8 through 7.14 hereof;
(f) failure
of the Company to pay any of the Obligations within five (5) Business Days
of
the due date thereof, provided that nothing contained herein shall prohibit
CIT
from charging such amounts to the Revolving Loan Account on the due date
thereof;
(g) the
Company shall (i) engage in any “prohibited transaction” as defined in ERISA,
(ii) have any “accumulated funding deficiency” as defined in ERISA, (iii) have
any “reportable event” as defined in ERISA, (iv) terminate any “plan”, as
defined in ERISA or (v) be engaged in any proceeding in which the Pension
Benefit Guaranty Corporation shall seek appointment, or is appointed, as trustee
or administrator of any “plan”, as defined in ERISA, and with respect to this
sub paragraph (h) such event or condition (x) remains uncured for a period
of
thirty (30) days from date of occurrence and (y) could, in the reasonable
opinion of CIT, subject the Company to any tax, penalty or other liability
material to the business, operations or financial condition of the
Company;
(h) the
occurrence of any default or event of default (after giving effect to any
applicable grace or cure periods) under any instrument or agreement evidencing
any Indebtedness of the Company
having a principal amount in excess of $250,000.00;
(i) the
Chief
Financial Officer and/or Chief Operating Officer of the Company resigns and
such
position is not filled with a replacement reasonably satisfactory to CIT within
thirty (30) days thereafter;
(j) if
at any
time the Continuing Directors cease to constitute at least a majority of the
members of the Company’s Board of Directors. For purposes of this section, the
Company’s “Continuing Directors” shall mean Messrs. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇;
(k) if
any
Guarantor dies or terminates its respective
Guaranty
or otherwise fails to perform any of the terms of the Guaranty, all prior to
termination of this Financing Agreement and payment in full of all
Obligations;
(l) any
judgment or judgments aggregating in excess of $100,000.00 or any injunction
or
attachment is obtained or enforced against the Company or any Guarantor and
which remains unstayed for more than ten (10) Business Days;
(m) at
any
time the TBV Receivables form a part of the Borrowing Base the TBV Assignment
Agreement shall be terminated or not otherwise be in full force or effect,
or
TBV, the Company or any other party thereto (other than CIT) shall breach any
warranty, representation or covenant contained therein; or
(n) at
any
time the Gemini Receivables form a part of the Borrowing Base, the Gemini
Service Agreement or Gemini Assignment Agreement shall be terminated or not
otherwise be in full force or effect, or Gemini, the Company or any other party
thereto (other than CIT) shall breach any warranty, representation or covenant
contained therein.
34
10.2. Upon
the
occurrence of a Default and/or an Event of Default, at the option of CIT, all
loans, advances and extensions of credit provided for in Section
3
of this
Financing Agreement shall be thereafter in CIT’s sole discretion and the
obligation of CIT to make Revolving Loans and to assist the Company in opening
Letters of Credit shall cease unless such Default is cured to CIT’s satisfaction
or Event of Default is waived in writing by CIT , and at the option of CIT
upon
the occurrence of an Event of Default: (a) all Obligations shall become
immediately due and payable; (b) CIT may charge the Company the Default Rate
of
Interest on all then outstanding or thereafter incurred Obligations in lieu
of
the interest provided for in Section
8
of this
Financing Agreement, and (c) CIT may immediately terminate this Financing
Agreement upon notice to the Company; provided, however, that, upon the
occurrence of an Event of Default listed in Paragraph 10.1(c) of this
Section
10,
this
Financing Agreement shall automatically terminate and all Obligations shall
become due and payable, without any action, declaration, notice or demand by
CIT. The exercise of any option is not exclusive of any other option, which
may
be exercised at any time by CIT.
10.3. Immediately
upon the occurrence of any Event of Default, CIT may, to the extent permitted
by
law: (a) remove from any premises where same may be located any and all books
and records, computers, electronic media and software programs associated with
any Collateral (including any electronic records, contracts and signatures
pertaining thereto), documents, instruments, files and records, and any
receptacles or cabinets containing same, relating to the Accounts, or CIT may
use, at the Company’s expense, such of the Company’s personnel, supplies or
space at the Company’s places of business or otherwise, as may be necessary to
properly administer and control the Accounts or the handling of collections
and
realizations thereon; (b) bring suit, in the name of the Company or CIT, and
generally shall have all other rights respecting said Accounts, including
without limitation the right to: accelerate or extend the time of payment,
settle, compromise, release in whole or in part any amounts owing on any
Accounts and issue credits in the name of the Company or CIT; (c) sell, assign
and deliver the Collateral and any returned, reclaimed or repossessed Inventory,
with or without advertisement, at public or private sale, for cash, on credit
or
otherwise, at CIT’s sole option and discretion, and CIT may bid or become a
purchaser at any such sale, free from any right of redemption, which right
is
hereby expressly waived by the Company; (d) foreclose the security interests
in
the Collateral created herein or by the Loan Documents by any available judicial
procedure, or to take possession of any or all of the Collateral, including
any
Inventory, Equipment and/or Other Collateral without judicial process, and
to
enter any premises where any Inventory, Equipment and/or Other Collateral may
be
located for the purpose of taking possession of or removing the same; and (e)
exercise any other rights and remedies provided in law, in equity, by contract
or otherwise. CIT shall have the right, without notice or advertisement, to
sell, lease, or otherwise dispose of all or any part of the Collateral, whether
in its then condition or after further preparation or processing, in the name
of
the Company or CIT, or in the name of such other party as CIT may designate,
either at public or private sale or at any broker’s board, in lots or in bulk,
for cash or for credit, with or without warranties or representations (including
but not limited to warranties of title, possession, quiet enjoyment and the
like), and upon such other terms and conditions as CIT in its sole discretion
may deem advisable, and CIT shall have the right to purchase at any such sale.
If any Inventory and Equipment shall require rebuilding, repairing, maintenance
or preparation, CIT shall have the right, at its option, to do such of the
aforesaid as is necessary, for the purpose of putting the Inventory and
Equipment in such saleable form as CIT shall deem appropriate and any such
costs
shall be deemed an Obligation hereunder. Any action taken by CIT pursuant to
this paragraph shall not effect commercial reasonableness of the sale. The
Company agrees, at the request of CIT, to assemble the Inventory and Equipment
and to make it available to CIT at premises of the Company or elsewhere and
to
make available to CIT the premises and facilities of the Company for the purpose
of CIT’s taking possession of, removing or putting the Inventory and Equipment
in saleable form. If notice of intended disposition of any Collateral is
required by law, it is agreed that ten (10) days notice shall constitute
reasonable notification and full compliance with the law. The net cash proceeds
resulting from CIT’s exercise of any of the foregoing rights, (after deducting
all charges, costs and expenses, including
35
reasonable
attorneys’ fees) shall be applied by CIT to the payment of the Obligations,
whether due or to become due, in such order as CIT may elect, and the Company
shall remain liable to CIT for any deficiencies, and CIT in turn agrees to
remit
to the Company or its successors or assigns, any surplus resulting therefrom.
The enumeration of the foregoing rights is not intended to be exhaustive and
the
exercise of any right shall not preclude the exercise of any other rights,
all
of which shall be cumulative. The Company hereby indemnifies CIT and holds
CIT
harmless from any and all costs, expenses, claims, liabilities, Out-of-Pocket
Expenses or otherwise, incurred or imposed on CIT by reason of the exercise
of
any of its rights, remedies and interests hereunder, including, without
limitation, from any sale or transfer of Collateral, preserving, maintaining
or
securing the Collateral, defending its interests in Collateral (including
pursuant to any claims brought by the Company, the Company as
debtor-in-possession, any secured or unsecured creditors of the Company, any
trustee or receiver in bankruptcy, or otherwise), and the Company hereby agrees
to so indemnify and hold CIT harmless, absent CIT’s gross negligence or willful
misconduct as finally determined by a court of competent jurisdiction. The
foregoing indemnification shall survive termination of this Financing Agreement
until such time as all Obligations (including the foregoing) have been finally
and indefeasibly paid in full. In furtherance thereof CIT, may establish such
reserves for Obligations hereunder (including any contingent Obligations) as
it
may deem advisable in its reasonable business judgment. Any applicable
mortgage(s), deed(s) of trust or assignment(s) issued to CIT on the Real Estate
shall govern the rights and remedies of CIT thereto.
SECTION
11. Termination
Except
as
otherwise permitted herein, CIT may terminate this Financing Agreement only
as
of the initial or any subsequent Anniversary Date and then only by giving the
Company at least sixty (60) days prior written notice of termination.
Notwithstanding the foregoing CIT may terminate the Financing Agreement
immediately upon the occurrence of an Event of Default, provided, however,
that
if the Event of Default is an event listed in Paragraph 10.1(c) of Section
10
of this
Financing Agreement, this Financing Agreement shall terminate in accordance
with
paragraph 10.2 of Section
10.
This
Financing Agreement, unless terminated as herein provided, shall automatically
continue from Anniversary Date to Anniversary Date. The Company may terminate
this Financing Agreement at any time upon sixty (60) days’ prior written notice
to CIT, provided that the Company pays to CIT immediately on demand an Early
Termination Fee and/or the Prepayment Premium, if applicable. All Obligations
shall become due and payable as of any termination hereunder or under
Section
10
hereof
and, pending a final accounting, CIT may withhold any balances in the Company’s
account (unless supplied with an indemnity satisfactory to CIT) to cover all
of
the Obligations, whether absolute or contingent, including, but not limited
to,
cash reserves for any contingent Obligations and an amount equal to 105% of
the
face amount of any outstanding Letters of Credit. All of CIT’s rights, liens and
security interests shall continue after any termination until all Obligations
have been paid and satisfied in full.
SECTION
12. Miscellaneous
12.1. The
Company hereby waives diligence, notice of intent to accelerate, notice of
acceleration, demand, presentment and protest and any notices thereof as well
as
notice of nonpayment. No delay or omission of CIT or the Company to exercise
any
right or remedy hereunder, whether before or after the happening of any Event
of
Default, shall impair any such right or shall operate as a waiver thereof or
as
a waiver of any such Event of Default. No single or partial exercise by CIT
of
any right or remedy precludes any other or further exercise thereof, or
precludes any other right or remedy.
36
12.2. This
Financing Agreement and the Loan Documents executed and delivered in connection
therewith constitute the entire agreement between the Company and CIT; supersede
any prior agreements; can be changed only by a writing signed by both the
Company and CIT; and shall bind and benefit the Company and CIT and their
respective successors and assigns.
12.3. In
no
event shall the Company, upon demand by CIT for payment of any Indebtedness
relating hereto, by acceleration of the maturity thereof, or otherwise, be
obligated to pay interest and fees in excess of the amount permitted by law.
Regardless of any provision herein or in any agreement made in connection
herewith, CIT shall never be entitled to receive, charge or apply, as interest
on any indebtedness relating hereto, any amount in excess of the maximum amount
of interest permissible under applicable law. If CIT ever receives, collects
or
applies any such excess, it shall be deemed a partial repayment of principal
and
treated as such; and if principal is paid in full, any remaining excess shall
be
refunded to the Company. This paragraph shall control every other provision
hereof, the Loan Documents and of any other agreement made in connection
herewith.
12.4. If
any
provision hereof or of any other agreement made in connection herewith is held
to be illegal or unenforceable, such provision shall be fully severable, and
the
remaining provisions of the applicable agreement shall remain in full force
and
effect and shall not be affected by such provision’s severance. Furthermore, in
lieu of any such provision, there shall be added automatically as a part of
the
applicable agreement a legal and enforceable provision as similar in terms
to
the severed provision as may be possible.
12.5. THE
COMPANY AND CIT EACH HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR
PROCEEDING ARISING OUT OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
THEREUNDER. THE COMPANY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS
AND CONSENTS TO SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, RETURN
RECEIPT REQUESTED. IN NO EVENT WILL CIT BE LIABLE FOR LOST PROFITS OR OTHER
SPECIAL OR CONSEQUENTIAL DAMAGES.
12.6. Except
as
otherwise herein provided, any notice or other communication required hereunder
shall be in writing (provided that, any electronic communications from the
Company with respect to any request, transmission, document, electronic
signature, electronic mail or facsimile transmission shall be deemed binding
on
the Company for purposes of this Financing Agreement, provided further that
any
such transmission shall not relieve the Company from any other obligation
hereunder to communicate further in writing), and shall be deemed to have been
validly served, given or delivered when hand delivered or sent by facsimile,
or
three days after deposit in the United State mails, with proper first class
postage prepaid and addressed to the party to be notified or to such other
address as any party hereto may designate for itself by like notice, as
follows:
(A) if
to
CIT, at:
The
CIT
Group/Business Credit, Inc.
The
CIT
Building
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
Regional Credit Manager
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
37
(B) if
to the
Company at:
▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, President and Chief Financial Officer
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a
courtesy copy of any material notice
to
the Company’s counsel at:
▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Fax
No.
(▇▇▇) ▇▇▇-▇▇▇▇
provided,
however, that the failure of CIT to provide the Company’s counsel with a copy of
such notice shall not invalidate any notice given to the Company and shall
not
give the Company any rights, claims or defenses due to the failure of CIT to
provide such additional notice.
12.7. THE
VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS FINANCING AGREEMENT AND THE
OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT ANY OTHER LOAN DOCUMENT INCLUDES AN EXPRESS ELECTION
TO BE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION.
12.8. This
Financing Agreement does not extinguish the obligations for the payment of
money
outstanding under the Existing Financing Agreement or discharge or release
the
obligations under the Existing Financing Agreement or the lien or priority
of
any mortgage, pledge, security agreement or any other security therefor. Nothing
herein contained shall be construed as a substitution or novation of the
obligations outstanding under the Existing Financing Agreement or instruments
securing the same, which shall remain in full force and effect, except as
modified hereby or by instruments executed concurrently herewith. Nothing
expressed or implied in this Financing Agreement shall be construed as a release
or other discharge of the Company under the Existing Financing Agreement from
any of its obligations and liabilities thereunder. The Company hereby (a)
confirms and agrees that, except as modified hereby or by instruments executed
concurrently herewith, each loan document to which it is a party and executed
in
connection with the Existing Financing Agreement shall constitute a “Loan
Document” under this Financing Agreement, and shall continue to be in full force
and effect and is hereby ratified and confirmed in all respects, except that
on
and after the Closing Date all references in any such Loan Document to the
“Financing Agreement,” “thereto,” “thereof,” “thereunder” or words of like
import referring to the Existing Financing Agreement shall mean the Existing
Financing Agreement, as amended and restated by this Financing Agreement and
(b)
confirms and agrees that to the extent that any such Loan Document purports
to
assign or pledge to CIT a security interest in or lien on, any Collateral as
security for the obligations of the Company from time to time existing in
respect of the Existing Financing Agreement and the Loan Documents, such pledge,
assignment and/or grant of the security interest or lien is hereby ratified
and
confirmed in all respects.
38
IN
WITNESS WHEREOF,
the
parties hereto have caused this Financing Agreement to be effective, executed,
accepted and delivered as of March 22, 2006, by their proper and duly authorized
officers as of the date set forth above.
|
COMMAND
SECURITY CORPORATION
|
THE
CIT GROUP/BUSINESS CREDIT, INC.
|
|
By:
/s/
▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Vice
President
|
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title:
President
|
39