Exhibit (10b)
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WORKING CAPITAL GUARANTEE PROGRAM
BORROWER AGREEMENT
THIS BORROWER AGREEMENT (this "Agreement") is made and entered into
by the entity identified as the Borrower on the signature page hereof
(the "Borrower") and is acknowledged by the institution identified as
the Lender on the signature page hereof (the "Lender").
RECITALS
A. The Lender shall make a loan (the "Loan") to the Borrower for
the purpose of providing the Borrower with pre-export working capital to
finance the manufacture, production or purchase and subsequent export
sale of the Items (as hereinafter defined).
B. The Loan shall be in a principal amount (the "Loan Amount") not
to exceed at any time outstanding the amount specified in Section (5)
(A) of the Loan Authorization Agreement between the Lender and the
Export-Import Bank of the United States ("Eximbank") which is attached
hereto as Annex A1 or Annex A2 and incorporated herein as a part of this
Agreement. If the Loan is being made pursuant to the Lender's Delegated
Authority from Eximbank, all references herein to the Loan Authorization
Agreement shall be deemed to be to the Loan Authorization Notice
provided to Eximbank and the Borrower by the Lender.
C. The Loan shall be evidenced by a valid and enforceable
promissory note payable by the Borrower to the order of the Lender (the
"Note") and shall be made pursuant to a written agreement related solely
thereto between the Borrower and the Lender (the "Loan Agreement").
D. A condition precedent to the making of the Loan by the Lender is
that Eximbank guarantee the payment of ninety percent (90%) of the Loan
Amount and all interest accrued thereon, subject to the terms and
conditions of a master guarantee agreement (the "Master Guarantee
Agreement") between Eximbank and the Lender.
E. In consideration for and as a condition precedent to the
Lender's making the Loan and Eximbank's entering into-the Master
Guarantee Agreement, the Borrower shall execute this Agreement for the
benefit of the Lender and Eximbank.
NOW, THEREFORE, the Borrower hereby agrees as follows:
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ARTICLE I
DEFINITIONS
"Accounts Receivable" shall mean those trade accounts from the sale
of the Items due and payable to the Borrower in the United States and
any notes, drafts, letters of credit or insurance proceeds supporting
payment thereof.
"Availability Date" shall mean the last date on which the Lender
may make a disbursement as set forth in Section (10) of the Loan
Authorization Agreement or, if such date is not a Business Day, the next
Business Day thereafter.
"Borrowing Base" shall mean the Collateral Value as discounted by
the applicable Disbursement Rate(s).
"Borrowing Base Certificate" shall mean the certificate in form
provided by the Lender and executed by the Borrower setting forth the
Borrowing Base supporting one or more Disbursements.
"Business Day" shall mean any day on which the Federal Reserve Bank
of New York is open for business.
"Buyer" shall mean an entity which has entered into one or more
Export Orders with the Borrower.
"Closing Date" shall mean the date on which the Loan Documents are
executed by the Borrower.
"Collateral" shall mean the property of the Borrower in which the
Borrower has granted to the Lender a valid and enforceable security
interest as security for the payment of all principal and interest due
under the Loan, and which is identified in Section (6) of the Loan
Authorization Agreement, including all proceeds (cash and non-cash)
thereof.
"Collateral Value" shall mean at any given time the value of all
Collateral against which Disbursements may be made as set forth in
Section (5)(C) of the Loan Authorization Agreement, valued according to
GAAP.
"Country Limitation Schedule" shall mean the most recent schedule
published by Eximbank and provided to the Borrower by the Lender which
sets forth on a country by country basis whether and under what
conditions Eximbank will provide coverage for the financing of export
transactions to countries listed therein.
Debarment Regulations shall have the meaning set forth in Section
2.16.
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"Disbursed Amount" shall mean the aggregate outstanding amount of
the Disbursements.
"Disbursement" shall mean an advance of the Loan from the Lender to
the Borrower under the Loan Agreement.
"Disbursement Rate" shall mean the rate specified in Section (5)(C)
of the Loan Authorization Agreement for each category of Collateral.
"Dollars" or "$" shall mean the lawful money of the United States
of America.
"Export Order" shall mean a written export order or contract for
the purchase by the Buyer from the Borrower of any of the Items.
"GAAP" shall mean the generally accepted accounting principles
issued by the American Institute of Certified Public Accountants.
"Guarantor" shall mean each person or entity, if any, identified in
Section (3) of the Loan Authorization Agreement who shall guarantee
(jointly and severally if more than one) the Borrower's obligation to
repay all amounts outstanding under the Note.
"Inventory" shall mean the raw materials, work-in-process and
finished goods purchased or manufactured by the Borrower for resale and
located in the United States.
"Items" shall mean the finished goods or services which are
intended for export, as specified in Section (4)(A) of the Loan
Authorization Agreement.
"Letter of Credit" shall mean an irrevocable letter of credit
subject to ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ or at the issuing bank
and issued for the benefit of the Borrower on behalf of a Buyer in
connection with the purchase of the Items.
"Loan Documents" shall mean the Note, the Loan Agreement, this
Agreement and any other instrument, agreement or document previously,
simultaneously or hereafter executed by the Borrower or any Guarantors
evidencing, securing, guaranteeing or in connection with the Loan.
Principals shall have the meaning set forth in Section 2.16.
"Revolving Loan" shall mean a Loan under which amounts disbursed
and repaid may be disbursed on a continuous basis during the term of the
Loan.
"Transaction Specific Loan" shall mean a Loan under which amounts
disbursed and repaid may not be disbursed again.
"U.S." or "United States" shall mean the United States of America
and its territorial
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possessions.
"U.S. Content" shall mean with respect to any Item all the labor,
materials and services which are of U.S. origin or manufacture, and
which are incorporated into an Item in the United States.
ARTICLE II
OBLIGATIONS OF THE BORROWER
Until payment in full of the Loan, the Borrower agrees to the
following:
Section 2.1 Use of Disbursements. The Borrower shall use
Disbursements only for the purpose of enabling the Borrower to finance
the cost of manufacturing, producing, purchasing or selling the Items.
The Borrower may not use Disbursements for the purpose of: (a) servicing
any of the Borrower' s pre-existing or future indebtedness unrelated to
the Loan; (b) acquiring fixed assets or capital goods for use in the
Borrower's business; (c) acquiring, equipping or renting commercial
space outside of the United States; (d) paying the salaries of non-U.S.
citizens or non-U.S. permanent residents who are located in offices
outside the United States; or (e) serving as a retainage or warranty
bond.
In addition, Disbursements may not be used to finance the
manufacture, purchase or sale of any of the following:
(a) Items to be sold to a Buyer located in a country in which
Eximbank is legally prohibited from doing business as designated in the
Country Limitation Schedule;
(b) that part of the cost of the Items which is not U.S. Content
unless such part is not greater than fifty percent (50%) of the cost of
the Items and is incorporated into the Items in the United States;
(c) defense articles or defense services; or
(d) without Eximbank's prior written consent, any Items to be used
in the construction, alteration, operation or maintenance of nuclear
power, enrichment, reprocessing, research or heavy water production
facilities.
Section 2.2 Borrowing Base Certificates and Export Orders. In order
to receive a Disbursement under the Loan, the Borrower shall deliver to
the Lender a Borrowing Base Certificate current withhin the past five
(5) Business Days and a copy of the Export Order(s) (or, for Revolving
Loans, if permitted by the Lender, a written summary of the Export
Orders) against which the Borrower is requesting a Disbursement. If the
Lender permits summaries of Export Orders, the Borrower shall also
deliver promptly to the Lender copies of any Export Orders
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requested by the Lender. Additionally, the Borrower shall deliver to the
Lender at least once every thirty (30) calendar days a Borrowing Base
Certificate current within the past five (5) Business Days, which
requirement may be satisfied by submission of a Borrowing Base
Certificate when requesting a Disbursement.
Section 2.3 Exclusions from the -Borrowing Base. In determining the
amount of a requested Disbursement, the Borrower shall exclude from the
Borrowing Base the following:
(a) any Inventory which is not located in the United States;
(b) any demonstration Inventory or Inventory sold on
consignment;
(c) any Inventory consisting of proprietary software;
(d) any Inventory which is damaged, obsolete, returned,
defective, recalled or unfit for further processing;
(e) any Inventory which has been previously exported from the
United States;
(f) any Inventory which constitutes defense articles or
defense services or any Accounts Receivable generated by sales of such
Inventory;
(g) any Inventory which is to be incorporated into Items
destined for shipment to, and any Account Receivable in the name of a
Buyer located in, a country in which Eximbank is legally prohibited from
doing business as designated in the Country Limitation Schedule;
(h) any Inventory which is to be incorporated into Items
destined for shipment to, and any Account Receivable in the name of a
Buyer located in, a country in which Eximbank coverage is not available
for commercial reasons as designated in the Country Limitation Schedule,
unless and only to the extent that such Items are to be sold to such
country on terms of a Letter of Credit confirmed by a bank acceptable to
Eximbank;
(i) any Inventory which is to be incorporated into Items whose
sale would result in an ineligible Account Receivable;
(j) any Account Receivable with a term in excess of net one
hundred eighty (180)days;
(k) any Account Receivable which is more than sixty (60)
calendar days past the original due date, unless it is insured through
Eximbank export credit insurance for comprehensive commercial and
political risk, or through Eximbank approved private insurers for
comparable coverage, in which case ninety (90) calendar days shall
apply;
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(l) any intra-company Account Receivable or any Account
Receivable from a subsidiary of the Borrower, from a person or entity
with a controlling interest in the Borrower or from an entity which
shares common controlling ownership with the Borrower;
(m) any Account Receivable evidenced by a Letter of Credit,
until the date of shipment of the Items covered by the subject Letter of
Credit;
(n) any Account Receivable which the Lender or Eximbank, in
its reasonable judgment, deems uncollectible for any reason;
(o) any Account Receivable payable in a currency other than
Dollars, except as may be approved in writing by Eximbank;
(p) any Account Receivable from a military Buyer, except as
may be approved in writing by Eximbank; and
(q) any Account Receivable due and collectible outside the
United States, except as my be approved in writing by Eximbank,
Section 2.4 Schedules, Reports and Other Statements. The Borrower
shall submit to the Lender in writing each month (a) an Inventory
schedule for the preceding month and (b) an Accounts Receivable aging
report for the preceding month detailing the terms of the amounts due
from each Buyer. The Borrower shall also furnish to the Lender promptly
upon request such information, reports, contracts, invoices and other
data concerning the Collateral as the Lender may from time to time
specify.
Section 2.5 Additional Security or Payment. The Borrower shall at
all times ensure that the Borrowing Base exceeds the Disbursed Amount.
If informed by the Lender or if the Borrower otherwise has actual
knowledge that the Borrowing Base is at any time less than the Disbursed
Amount, the Borrower shall, within five (5) Business Days, either (a)
furnish additional security to the Lender, in form and amount
satisfactory to the Lender and Eximbank, or (b) pay to the Lender an
amount equal to the difference between the Disbursed Amount and the
Borrowing Base.
Section 2.6 Continued Security Interest. The Borrower shall notify
the Lender in writing within five (5) Business Days if (a) the Borrower
changes its name or identity in any manner, (b) the Borrower changes the
location of its principal place of business, (c) the nature of any of
the Collateral is changed or any of the Collateral is transferred to
another location or (d) any of the books or records related to the
Collateral are transferred to another location. The Borrower shall
execute such additional financing statements or other documents as the
Lender may reasonably request in order to maintain its perfected
security interest in the Collateral.
Section 2.7 Inspection of Collateral. The Borrower shall permit the
representatives of the Lender and Eximbank to make at any time during
normal business hours reasonable inspections
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of the Collateral and of the Borrower's facilities, activities, and
books and records, and shall cause its officers and employees to give
full cooperation and assistance in connection therewith.
Section 2.8 Notice of Debtor's Relief; Dissolution and Litigation.
The Borrower shall notify the Lender in writing within five (5) Business
Days of the occurrence of any of the following:
(a) a proceeding in bankruptcy or an action for debtor's
relief is filed by, against, or on behalf of the Borrower;
(b) the Borrower fails to obtain the dismissal or termination
within thirty (30) calendar days of the commencement of any proceeding
or action referred to in (a) above;
(c) the Borrower begins any procedure for its dissolution or
liquidation, or a procedure therefore has been commenced against it; or
(d) any material litigation is filed against the Borrower.
Section 2.9 Insurance. The Borrower shall maintain insurance
coverage in the manner and to the extent customary in businesses of
similar character.
Section 2.10 Merger or Consolidation. Without the prior written
consent of Eximbank and the Lender, the Borrower shall not (a) merge or
consolidate with any other entity, (b) sell, lease, transfer or
otherwise dispose of any substantial part of its assets, or any part of
its assets which are essential to the conduct of its business or
operations, (c) make any material change in its organizational structure
or identity, or (d) enter into any agreement to do any of the foregoing.
Section 2.11 Reborrowing and Repayment Terms. (a) If the Loan is a
Revolving Loan, provided that the Borrower is not in default under any
of the Loan Documents, the Borrower may borrow, repay and reborrow
amounts under the Loan until the close of business on the Availability
Date. Unless the Revolving Loan is renewed or extended by the Lender,
the Borrower shall pay in full the outstanding Loan Amount and all
accrued and unpaid interest thereon no later than the first Business Day
after the Availability Date.
(b) If the Loan is a Transaction Specific Loan, the Borrower shall,
within two (2) Business Days of the receipt thereof, pay to the Lender
(for application against the outstanding Loan Amount and accrued and
unpaid interest thereon) all checks, drafts, cash and other remittances
it may receive in payment or on account of the Accounts Receivable or
any other Collateral, in precisely the form received (except for the
endorsement of the Borrower where necessary). Pending such deposit, the
Borrower shall not commingle any such items of payment with any of its
other funds or property, but will hold them separate and apart.
Section 2.12 Cross Default. The Borrower shall be deemed in default
under the Loan if
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the Borrower fails to pay when due any amount payable to the Lender
under any loan to the Borrower not guaranteed by Eximbank.
Section 2.13 Financial Statements. The Borrower shall provide
quarterly financial statements to the Lender no later than forty-five
(45) days after the end of each quarter. This is in addition to any
other financial statements that may be required by the Lender under the
Loan Agreement.
Section 2.14 Taxes, Judgments and Liens. The Borrower shall remain
current on all of its federal, state and local tax obligations. In
addition, the Borrower shall notify the Lender in the event (i) any
judgment is rendered against the Borrower, or (ii) any lien is filed
against any of the assets of the Borrower.
Section 2.15 Munitions List. If any of the Items are articles,
services, or related technical data that are listed on the United States
Munitions list (part 121 of title 22 of the Code of Federal
Regulations), the Borrower shall send a written notice promptly to the
Lender describing the Item(s) and the corresponding invoice amount.
Section 2.16 Suspension and Debarment, etc. On the date of this
Agreement neither the Borrower nor its Principals (as defined below) are
(A) debarred, suspended, proposed for debarment with a final
determination still pending, declared ineligible or voluntarily excluded
{as such terms are defined under any of the Debarment Regulations
referred to below) from participating in procurement or nonprocurement
transactions with any United States federal government department or
agency pursuant to any of the Debarment Regulations (as defined below)
or (B) indicted, convicted or had a civil judgment rendered against the
Borrower or any of its Principals for any of the offenses listed in any
of the Debarment Regulations. Unless authorized by Eximbank, the
Borrower will not knowingly enter into any transactions in connection
with the Item with any person who is debarred, suspended, declared
ineligible or voluntarily excluded from participation in procurement or
nonprocurement transactions with any United States federal government
department or agency pursuant to any of the Debarment Regulations. The
Borrower will provide immediate written notice to the Lender if at any
time it learns that the certification set forth in this Section 2.16 was
erroneous when made or has become erroneous by reason of changed
circumstances. For the purposes hereof, (1) "Principals" shall mean any
officer, director, owner, partner, key employee, or other person with
primary management or supervisory responsibilities with respect to the
Borrower, or any other person (whether or not an employee) who has
critical influence on or substantive control over the transaction
covered by this Agreement and (2) the Debarment Regulations shall mean
{x) the Governmentwide Debarment and Suspension (Nonprocurement)
regulations (Common Rule), 53 Fed. Reg. 19204 (May 26, 1988), (y)
Subpart 9.4 (Debarment, Suspension, and Ineligibility) of the Federal
Acquisition Regulations, 48 C.F.R. 9.400-9.409 and {z) the revised
Governmentwide Debarment and Suspension (Nonprocurement) regulations
(Common Rule), 60 Fed. Reg. 33037 (June 26, 1995).
Section 2.17 Special Conditions. The Borrower shall comply with all
Special Conditions, if any, referenced in Section (11) of the Loan
Authorization Agreement or the Loan Authorization Notice.
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ARTICLE III
RIGHTS AND REMEDIES
Section 3.1 Indemnification. Upon Eximbank's payment of a claim to
the Lender in connection with the Loan pursuant to the Master Guarantee
Agreement, Eximbank shall assume all rights and remedies of the Lender
under the Loan Documents and may enforce any such rights or remedies
against the Borrower, the Collateral and any Guarantors. Additionally,
the Borrower shall hold Eximbank and the Lender harmless from and
indemnify them against any and all liabilities, damages, claims, costs
and losses incurred or suffered by either of them resulting from (a) any
materially incorrect certification or statement knowingly made by the
Borrower or its agent to Eximbank or the Lender in connection with the
Loan, this Agreement or any of the other Loan Documents or (b) any
material breach by the Borrower of the terms and conditions of this
Agreement or any of the other Loan Documents. The Borrower also
acknowledges that any statement, certification or representation made by
the Borrower in connection with the Loan is subject to the penalties
provided in Article 18 U.S.C. Section 1001.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York, United
States of America.
Section 4.2 Notification. All notifications required by this
Agreement shall be given in the manner provided in the Loan Agreement.
Section 4.3 Partial Invalidity. If at any time any of the
provisions of this Agreement becomes illegal, invalid or unenforceable
in any respect under the law of any jurisdiction, neither the legality,
the validity nor the enforceability of the remaining provisions hereof
shall in any way be affected or impaired.
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IN WITNESS WHEEOF, the Borrower has caused this Agreement to be
duly executed as of the 3rd, day of APRIL, 1998.
WEB PRESS CORPORATION/WEB LEADER INTERNATIONAL, INC.
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(Name of Borrower)
By \s\▇▇▇▇ ▇▇▇▇▇▇
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Name ▇▇▇▇ ▇▇▇▇▇▇
Title PRESIDENT & CHAIRMAN
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ACKNOWLEDGED:
WASHINGTON FIRST INTERNATIONAL BANK
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(Name of Lender)
By \s\▇▇▇▇▇▇▇ ▇.▇. ▇▇▇
___________________
Name ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇
Title VICE PRESIDENT
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Guaranteed Loan No. AP073281XX
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ANNEXES:
A1 - Loan Authorization Agreement or
A2 - Loan Authorization Notice
(Revised April 1, 1996)