EXHIBIT 10.1
CONVERTIBLE LOAN AGREEMENT
DATED MARCH 2, 1998
BY AND AMONG
LA-MAN CORPORATION
AS BORROWER
AND
RENAISSANCE CAPITAL GROWTH & INCOME FUND III, INC.
AND
RENAISSANCE US GROWTH & INCOME TRUST PLC
AS LENDERS
AND
RENAISSANCE CAPITAL GROUP, INC.
AS AGENT FOR THE LENDERS
TABLE OF CONTENTS
Page
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ARTICLE I - DEFINITION OF TERMS....................................... 1
Section 1.01. Definitions........................................ 1
Section 1.02. Other Definition Provisions........................ 7
ARTICLE II - LOAN PROVISIONS.......................................... 8
Section 2.01. The Loan........................................... 8
Section 2.02. Use of Proceeds.................................... 8
Section 2.03. Interest Rate and Interest Payments................ 9
Section 2.04. Maturity........................................... 9
Section 2.05. Mandatory Principal Repayment...................... 9
Section 2.06. Redemption......................................... 9
Section 2.07. Fees and Expenses.................................. 9
Section 2.08. Finder's Fees...................................... 10
Section 2.09. Taxes.............................................. 10
Section 2.10. Conversion Rights.................................. 11
Section 2.11. Collateral, Security Agreements, Pledge Agreement.. 11
ARTICLE III - CONDITIONS PRECEDENT.................................... 11
Section 3.01. Document Requirements.............................. 11
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF BORROWER............... 13
Section 4.01. Organization and Good Standing..................... 13
Section 4.02. Authorization and Power............................ 13
Section 4.03. No Conflicts or Consents........................... 13
Section 4.04. Enforceable Obligations............................ 13
Section 4.05. No Liens........................................... 13
Section 4.06. Financial Condition................................ 14
Section 4.07. No Default......................................... 14
Section 4.08. Material Agreements................................ 14
Section 4.09. No Litigation...................................... 15
Section 4.10. Taxes.............................................. 15
Section 4.11. Capitalization..................................... 15
Section 4.12. Use of Proceeds.................................... 16
Section 4.13. Employee Matters................................... 16
Section 4.14. Employee Benefit Plans............................. 16
Section 4.15. Compliance with Laws............................... 17
Section 4.16. Licenses and Permits............................... 17
Section 4.17. Contracts.......................................... 17
Section 4.18. Shares Issuable Upon Conversion.................... 18
Section 4.19. Insider............................................ 18
Section 4.20. Subsidiaries....................................... 18
Section 4.21. Casualties......................................... 19
Section 4.22. Investment Company Act............................. 19
Section 4.23. Sufficiency of Capital............................. 19
Section 4.24. Corporate Names.................................... 19
Section 4.25. Insurance.......................................... 19
Section 4.26. Intellectual Property.............................. 19
Section 4.27. Real Property...................................... 20
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Section 4.28. Environmental............................................... 21
Section 4.29. Survival of Representations and Warranties.................. 23
Section 4.30. Full Disclosure............................................. 23
ARTICLE V - AFFIRMATIVE COVENANTS OF BORROWER.................................. 23
Section 5.01. Financial Statements, Reports and Documents................. 23
Section 5.02. Preparation of Budgets...................................... 24
Section 5.03. Payment of Taxes and Other Indebtedness..................... 25
Section 5.04. Maintenance of Existence and Rights; Conduct of Business.... 25
Section 5.05. SEC Filings................................................. 25
Section 5.06. Notice...................................................... 25
Section 5.07. Compliance with Loan Documents.............................. 25
Section 5.08. Compliance with Material Agreements......................... 26
Section 5.09. Operations and Properties................................... 26
Section 5.10. Books and Records; Access................................... 26
Section 5.11. Compliance with Law......................................... 26
Section 5.12. Insurance................................................... 26
Section 5.13. Authorizations and Approvals................................ 26
Section 5.14. ERISA Compliance............................................ 27
Section 5.15. Further Assurances.......................................... 27
Section 5.16. Indemnity by Borrower....................................... 27
Section 5.17. Reservation of Shares....................................... 28
Section 5.18. Ownership of Subsidiaries................................... 28
Section 5.19. Retention of Stock Ownership................................ 28
ARTICLE VI - NEGATIVE COVENANTS OF BORROWER.................................... 29
Section 6.01. Limitation on Indebtedness.................................. 29
Section 6.02. Limitation on Liens......................................... 29
Section 6.03. Limitation on Investments................................... 29
Section 6.04. Alteration of Material Agreements........................... 29
Section 6.05. Transactions with Affiliates................................ 30
Section 6.06. Limitations on Acquisition of Nonrelated Business........... 30
Section 6.07. Limitation on Sale of Properties............................ 30
Section 6.08. Fiscal Year and Accounting Method........................... 30
Section 6.09. Liquidation................................................. 30
Section 6.10. Material Amendments to Articles of Incorporation or Bylaws.. 30
Section 6.11. Executive Compensation...................................... 31
Section 6.12. Restricted Payments......................................... 31
Section 6.13. Consolidation or Merger..................................... 31
ARTICLE VII - COVENANTS OF MAINTENANCE OF FINANCIAL STANDARDS.................. 31
Section 7.01. Financial Ratios............................................ 31
ARTICLE VIII - EVENTS OF DEFAULT............................................... 32
Section 8.01. Events of Default........................................... 32
Section 8.02. Remedies Upon Event of Default.............................. 33
Section 8.03. Performance by the Lenders.................................. 34
Section 8.04. Payment of Expenses Incurred by the Lenders................. 34
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ARTICLE IX - REGISTRATION RIGHTS......................................................... 34
Section 9.01. Demand Registration.................................................. 34
Section 9.02. "Piggy-Back" Registration............................................ 35
Section 9.03. Shelf Registration................................................... 37
Section 9.04. Obligations of Borrower.............................................. 37
Section 9.05. Furnish Information.................................................. 38
Section 9.06. Expenses of Registration............................................. 39
Section 9.07. Indemnification Regarding Registration Rights........................ 39
Section 9.08. Reports Under the 1934 Act........................................... 41
Section 9.09. Assignment of Registration Rights.................................... 42
Section 9.10. Other Matters........................................................ 42
ARTICLE X - BOARD OF DIRECTORS........................................................... 43
Section 10.01. Board Representation or Attendance by Observer....................... 43
Section 10.02. Limitation of Authority of Persons Designated as a Director Nominee.. 43
Section 10.03. Nonliability of the Lenders.......................................... 43
ARTICLE XI - AGENCY AND INTER-LENDER PROVISIONS.......................................... 44
Section 11.01. The Lenders" Representations and Warranties to Other Lenders......... 44
Section 11.02. Waiver of Loan Provisions or Interest or Principal Payments.......... 44
Section 11.03. Agency............................................................... 44
ARTICLE XII - MISCELLANEOUS.............................................................. 46
Section 12.01. Strict Compliance.................................................... 46
Section 12.02. Waivers and Modifications............................................ 46
Section 12.03. Limitation on Liability.............................................. 47
Section 12.04. Choice of Forum; Consent to Service of Process and Jurisdiction...... 47
Section 12.05. Arbitration.......................................................... 47
Section 12.06. Invalid Provisions................................................... 49
Section 12.07. Maximum Interest Rate................................................ 49
Section 12.08. Participations and Assignments of the Debentures..................... 50
Section 12.09. Confidentiality...................................................... 50
Section 12.10. Binding Effect....................................................... 51
Section 12.11. No Third Party Beneficiary........................................... 51
Section 12.12. Entirety............................................................. 51
Section 12.13. Headings............................................................. 51
Section 12.14. Survival............................................................. 52
Section 12.15. Multiple Counterparts................................................ 52
Section 12.16. Knowledge of Borrower................................................ 52
Section 12.17. Notices.............................................................. 52
Section 12.18. Governing Law........................................................ 54
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Agreement
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THIS AGREEMENT, dated as of March 2, 1998, by and among LA-MAN CORPORATION, a
Nevada corporation ("Borrower"), RENAISSANCE CAPITAL GROWTH & INCOME FUND III,
INC., a Texas corporation, and RENAISSANCE US GROWTH & INCOME TRUST PLC, a
public limited company registered in England and Wales (individually referred to
as Renaissance III and Renaissance PLC, respectively, and together with any
permitted assignees or successors in interest individually referred to as each
or any "Lender" and collectively referred to as the "Lenders"), and RENAISSANCE
CAPITAL GROUP, INC., a Texas corporation, as agent for the Lenders (the
"Agent"). All references herein to Borrower shall include the Subsidiaries,
unless the context otherwise requires.
WITNESSETH:
WHEREAS, Borrower seeks to obtain THREE MILLION FIVE HUNDRED THOUSAND DOLLARS
($3,500,000) from the Lenders through the issuance of Debentures to be used for
acquisitions, working capital and general corporate purposes in accordance with
Section 2.02 hereof; and
WHEREAS, Borrower has requested that the Lenders provide such loan as herein
provided, and that the Lenders are willing to furnish such to Borrower upon the
terms and subject to the conditions and for the considerations hereinafter set
forth;
NOW, THEREFORE, in consideration of the mutual promises herein contained and
for other valuable consideration, receipt and sufficiency of which is
acknowledged, the parties hereto agree as follows:
ARTICLE I - DEFINITION OF TERMS
-------------------------------
SECTION 1.01. DEFINITIONS.
--------------------------
For the purposes of this Agreement, the following terms shall have the
respective meanings assigned to them in this Article I or in the section or
recital referred to below:
"Acquisition Indebtedness" shall mean Indebtedness or mandatorily
redeemable preferred stock of Borrower or a Subsidiary incurred in connection
with, or to provide all or any portion of the funds or credit support utilized
to consummate, the transaction or series of related transactions pursuant to
which such Subsidiary became a Subsidiary or was acquired by Borrower.
"Affiliate" with respect to any Person shall mean a person that directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with, such Person.
"Capital Expenditure" shall mean an expenditure for assets that is properly
classifiable as a capital expenditure in accordance with GAAP.
"Capital Lease" shall mean any lease of property, real or personal, which
would be properly classifiable as a capital lease in accordance with GAAP.
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Agreement (Continued)
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"Common Stock"shall mean Borrower's common stock, $.001 par value.
"Conversion" or "Conversion Rights" shall mean exchange of, or the rights
to exchange, the Principal Amount of the Loan, or any part thereof, for fully
paid and nonassessable Common Stock on the terms and conditions provided in the
Debenture.
"Current Liabilities" shall mean all liabilities classified in accordance
with GAAP as current liabilities.
"Current Ratio" shall mean, for any Person as of any date, the ratio of
such Person's Consolidated Current Assets to Consolidated Current Liabilities as
of such date.
"Debentures" shall mean the Debentures executed by Borrower and delivered
pursuant to the terms of this Agreement, together with any renewals, extensions
or modifications thereof.
"Debtor Laws" shall mean all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency, reorganization or
similar laws from time to time in effect affecting the rights of creditors or
debtors generally.
"Default" or "Event of Default" shall mean any of the events specified in
Article VIII.
"Dividends," in respect of any corporation, shall mean (i) cash
distributions or any other distributions on, or in respect of, any class of
capital stock of such corporation, except for distributions made solely in
shares of stock of the same class, and (ii) any and all funds, cash and other
payments made in respect of the redemption, repurchase or acquisition of such
stock, unless such stock shall be redeemed or acquired through the exchange of
such stock with stock of the same class.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended, together with all rules and regulations issued pursuant thereto.
"Fixed Charge Coverage Ratio" shall mean for Borrower for the immediately
preceding twelve-month period ended on such date, the ratio of (a) Consolidated
Trailing Twelve Months Free Cash Flow, to (b) Borrower's total scheduled
payments of principal on Indebtedness for the same twelve-month period,
excluding Indebtedness under Borrower's revolving credit loans and mandatory
redemption payments as set forth herein.
"GAAP" shall mean United States generally accepted accounting principles
applied on a consistent basis, set forth in the Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants or
the Financial Accounting Standards Board or their successors, which are
applicable in the circumstances as of the date in question. The requirement
that such principles be applied on a consistent basis shall mean that the
accounting principles observed in a current period are comparable in all
material respects to those applied in a preceding period.
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Agreement (Continued)
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"Governmental Authority" shall mean any government (or any political
subdivision or jurisdiction thereof), court, bureau, agency or other
governmental authority having jurisdiction over Borrower or a Subsidiary or any
of its or their businesses, operations or properties.
"Guaranty" of any Person shall mean any contract, agreement or
understanding of such Person pursuant to which such Person in effect guarantees
the payment of any Indebtedness of any other Person (the "Primary Obligor") in
any manner, whether directly or indirectly, including, without limitation,
agreements: (i) to purchase such Indebtedness or any property constituting
security therefor; (ii) to advance or supply funds primarily for the purpose of
assuring the holder of such Indebtedness of the ability of the Primary Obligor
to make payment; or (iii) otherwise to assure the holder of the Indebtedness of
the Primary Obligor against loss in respect thereof, except that "Guaranty"
shall not include the endorsement by Borrower or a Subsidiary in the ordinary
course of business of negotiable instruments or documents for deposit or
collection.
"Holder" shall mean the owner of Registrable Securities.
"Indebtedness" shall mean, with respect to any Person, without duplication,
the following indebtedness, obligations and liabilities of such Person: (i)
indebtedness for borrowed money; (ii) all obligations of such Person in respect
of any Guaranty; (iii) all obligations of such Person in respect of any Capital
Lease, (iv) all obligations, indebtedness and liabilities secured by any lien or
any security interest on any property or assets of such Person, but only to the
extent so secured; and (v) all preferred stock of such Person which is subject,
at the time of calculation of Indebtedness, to a mandatory redemption
requirement, valued at the greater of its involuntary redemption price or
liquidation preference plus accrued and unpaid dividends, and all extensions,
renewals, modifications and amendments thereto.
"Investment" in any Person shall mean any investment, whether by means of
share purchase, loan, advance, capital contribution or otherwise, in or to such
Person, the Guaranty of any Indebtedness of such Person, or the subordination of
any claim against such Person to other Indebtedness of such Person; provided
however, that "Investment" shall not include (i) any demand deposits in a duly
chartered state or national bank or other cash equivalent investments (ii) any
loans permitted by Section 6.12, or (iii) any acquisitions of equity in any
other Person.
"IRS Code" shall mean the Internal Revenue Code of 1986, as amended,
together with all rules and regulations issued thereunder.
"Lien" shall mean any lien, mortgage, security interest, tax lien, pledge,
encumbrance, conditional sale or title retention arrangement, or any other
interest in property designed to secure the repayment of Indebtedness, whether
arising by agreement or under any statute or law, or otherwise.
"Loan" shall mean the money lent to Borrower pursuant to this Agreement,
along with any accrued, unpaid interest thereon.
"Loan Closing" or "Loan Closing Date" shall mean the disbursement of Loan
funds, which shall occur within ten (10) days of the execution and delivery of
this Agreement.
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Agreement (Continued)
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"Loan Documents" shall mean this Agreement, the Debentures and any other
agreements or documents required to be executed or delivered by Borrower
pursuant to the terms of this Agreement (and any amendments or supplements
hereto or modifications hereof).
"Lock-Up Agreement" shall mean the "lock-up" agreements to be executed by
the executive officers, directors and principal shareholders of Borrower
pursuant to Section 5.19 of this Agreement.
"Material Adverse Effect" or "Material Adverse Change" shall mean (i) any
change, factor or event that shall (a) have a material adverse effect upon the
validity or enforceability of any Loan Documents, (b) have a material adverse
effect upon the financial condition, results of operations, business,
properties, operations or assets of Borrower or its Subsidiaries taken as a
whole or (c) have a material adverse effect upon the ability of Borrower to
fulfill its obligations under the Loan Documents, or (ii) any event that causes
an Event of Default or which, with notice or lapse of time or both, could
reasonably be expected to become an Event of Default.
"Obligation" shall mean: (i) all present and future Indebtedness,
obligations and liabilities of Borrower to the Lenders arising pursuant to this
Agreement, regardless of whether such Indebtedness, obligations and liabilities
are direct, indirect, fixed, contingent, joint, several, or joint and several;
(ii) all present and future Indebtedness, obligations and liabilities of
Borrower to the Lenders arising pursuant to or represented by the Debentures and
all interest accruing thereon, and reasonable attorneys' fees incurred in the
enforcement or collection thereof; (iii) all present and future indebtedness,
obligations and liabilities of Borrower and any Subsidiary evidenced by or
arising pursuant to any of the Loan Documents; (iv) all costs incurred by the
Lenders or Agent, including, but not limited to, reasonable attorneys' fees and
legal expenses related to this transaction and (v) all renewals, extensions and
modifications of the indebtedness referred to in the foregoing clauses, or any
part thereof.
"Permits" shall have the meaning set forth in Section 4.16.
"Permitted Indebtedness" shall mean Indebtedness outstanding as of the date
hereof or incurred in compliance with Section 6.01 and the other terms of this
Agreement that constitutes (i) Senior Obligations, (ii) obligations under
Capital Leases, (iii) letters of credit, (iv) Current Liabilities, (v) debt
associated with Permitted Liens, (vi) any other Subordinated Debt, (vii)
Acquisition Indebtedness, (viii) purchase money Indebtedness, (ix) Indebtedness
of foreign Subsidiaries, (x) intercompany Indebtedness, (xi) Indebtedness under
this Agreement or the Debentures, and (xii) any refunding, refinancing or
extension of any of the above.
"Permitted Liens" shall mean: (i) Liens (if any) granted for the benefit of
the Lenders; (ii) Liens to secure the Permitted Indebtedness; (iii) pledges or
deposits made to secure payment of worker's compensation insurance (or to
participate in any fund in connection with worker's compensation insurance),
unemployment insurance, pensions or social security programs; (iv) Liens imposed
by mandatory provisions of law such as for carriers', landlord's, materialmen's,
mechanics', warehousemen's, vendors' and other like Liens arising in the
ordinary course of business, securing Indebtedness whose payment is made within
30 days of the date such Lien arises, or that are being contested in good faith
by appropriate proceedings as to which adequate reserves have been established
to the extent required by GAAP; (v) Liens for taxes,
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Agreement (Continued)
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assessments and governmental charges or levies imposed upon a Person or upon
such Person's income or profits or property, if the same are not yet due and
payable or if the same are being contested in good faith and as to which
adequate cash reserves have been provided or if an extension is obtained with
respect thereto; (vi) Liens arising from good faith deposits in connection with
tenders, leases, bids or contracts (other than contracts involving the borrowing
of money), pledges or deposits to secure public or statutory obligations and
deposits to secure (or in lieu of) surety, stay, appeal or customs bonds and
deposits to secure the payment of taxes, assessments, customs duties or other
similar charges; (vii) encumbrances consisting of zoning restrictions,
easements, reservations, licenses, covenants and other minor irregularities of
title or other restrictions on the use of real property (whether owned or
leased), provided that such items do not materially impair the intended use of
such property, and none of which is violated by Borrower's existing structures
or land use; (viii) mortgages, financing statements, equipment leases or other
encumbrances incurred in connection with the acquisition of property or
equipment or the replacement of existing property or equipment, provided that
such liens shall be limited to the property or equipment then being acquired;
(ix) Liens which secure Senior Obligations; and (x) Liens listed in Schedule
4.05.
"Person" shall include an individual, a corporation, a joint venture, a
general or limited partnership, a trust, an unincorporated organization or a
government or any agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan or other plan maintained by
Borrower for employees of Borrower and/or any Subsidiaries and covered by Title
IV of ERISA, or subject to the minimum funding standards under Section 412 of
the IRS Code.
"Principal Amount" shall mean, as of any time, the then aggregate
outstanding face amount of the Debentures after any conversions or redemptions
and after giving effect to any installment payments received by the Lenders.
"Registrable Securities" shall mean (i) the Common Stock issuable upon
Conversion of the Debentures, and (ii) any Common Stock issued upon Conversion
of the Debentures or upon exercise of any warrant, right or other security that
is issued with respect to the Common Stock by way of (a) stock dividend; (b) any
other distribution with respect to, or in exchange for, or in replacement of
Common Stock; (c) stock split; (d) in connection with a combination of shares,
recapitalization, merger, or consolidation excluding in all cases, however, any
Common Stock that is not a Restricted Security and any Registrable Securities
sold or transferred by a Person in a transaction in which the rights under this
Agreement are not assigned; (e) $1,000,000 of Common Stock issued to the Lenders
and (f) up to 200,000 shares of Common Stock issuable upon exercise of Warrants
issued to the Lenders.
"Registrable Securities Then Outstanding" shall mean an amount equal to the
number of Registrable Securities outstanding which have been issued pursuant to
the Conversion of the Debentures.
"Renaissance III" shall mean Renaissance Capital Growth & Income Fund III,
Inc., a Texas corporation.
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Agreement (Continued)
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"Renaissance PLC" shall mean Renaissance US Growth & Income Trust PLC, a
public limited company registered in England and Wales.
"Renaissance Group" shall mean Renaissance Capital Group, Inc., a Texas
corporation.
"Restricted Security" shall mean a security that has not been (i)
registered under the 1933 Act or (ii) distributed to the public pursuant to Rule
144 (or any similar provisions that are in force) under the ▇▇▇▇ ▇▇▇.
"SEC" shall mean the Securities and Exchange Commission, or any other
federal agency at the time administering the 1933 Act and the 1934 Act.
"1933 Act" shall refer to the Securities Act of 1933, as amended, or any
similar federal statute and rules and regulations promulgated thereunder, all as
the same may be in effect from time to time.
"1934 Act" shall refer to the Securities Exchange Act of 1934, as amended,
or any similar federal statute and rules and regulations promulgated thereunder,
all as the same may be in effect from time to time.
"1940 Act" shall refer to the Investment Company Act of 1940, as amended,
or any similar federal statute and rules and regulations promulgated thereunder,
all as the same may be in effect from time to time.
"Senior Documents" means all loan documents evidencing the Senior
Obligations, as each may now or hereafter be amended, modified, supplemented,
renewed or extended from time to time.
"Senior Obligations" means one or more senior debt facilities (including
loans and other extensions of credit under the Senior Documents) or commercial
paper facilities with banks or other institutional lenders providing for
revolving credit loans, term loans, capital expenditure loans, receivables
financings (including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, as now existing or hereafter incurred, and in
each case, as amended, restated, modified, renewed or extended from time to
time.
"Solvent" shall mean, with respect to any Person on a particular date, that
on such date: (i) the fair value of the assets of such Person is greater than
the total amount of liabilities of such Person; (ii) the estimated present fair
salable value, in the ordinary course of business, of the assets of such Person
is not less than the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and matured; (iii) such
Person is able to realize upon its assets and pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business; (iv) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability to
pay as such debts and liabilities mature; and (v) such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's assets would constitute unreasonably small
capital after giving due consideration to the prevailing practice in the
industry in which such Person is engaged. In computing the amount of contingent
liabilities at any time, it is intended
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Agreement (Continued)
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that such liabilities will be computed at the amount which, in light of all the
facts and circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Subordinated Debt" shall mean any indebtedness of Borrower or any
Subsidiaries, now existing or hereafter incurred, which indebtedness is, by its
terms, junior in right of repayment to the payment of the Debentures.
"Subscription Agreements" shall mean the Subscription Agreements executed
by Borrower and delivered pursuant to the terms of this Agreement.
"Subsidiary" or "Subsidiaries" shall mean any or all corporations or
entities whether now existing or hereafter acquired of which over 50% the Voting
Shares or equity interests are owned, directly or indirectly, by Borrower.
"Subsidiary Documents" shall mean the Guaranties, Security Agreements and
any other agreements or documents required to be executed or delivered by any
Subsidiary pursuant to the terms of this Agreement (and any amendments or
supplements hereto or modifications hereof).
"Total Capitalization" shall mean for any Person, total Indebtedness plus
shareholders' equity as defined in accordance with GAAP.
"Voting Shares" of any corporation shall mean shares of any class or
classes (however designated) having ordinary voting power for the election of at
least a majority of the members of the Board of Directors (or other governing
bodies) of such corporation, other than shares having such power only by reason
of the happening of a contingency.
"Warrants" shall mean the Stock Purchase Warrants executed by Borrower and
delivered pursuant to the terms of this Agreement.
SECTION 1.02. OTHER DEFINITION PROVISIONS.
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(a) All terms defined in this Agreement shall have the above-defined meanings
when used in the Debentures or any other Loan Documents, certificate, report or
other document made or delivered pursuant to this Agreement, unless the context
therein shall otherwise require.
(b) Defined terms used herein in the singular shall import the plural and vice
versa.
(c) The words "hereof," "herein," "hereunder" and similar terms when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement.
(d) References to financial statements and reports shall be deemed to be a
reference to such statements and reports prepared in accordance with GAAP.
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Agreement (Continued)
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(e) Accounting terms not specifically defined above in this Agreement shall be
construed in accordance with GAAP.
ARTICLE II - LOAN PROVISIONS
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SECTION 2.01. THE LOAN.
-----------------------
(a) Subject to the terms and conditions of this Agreement, and the compliance
with such terms and conditions by all parties, each Lender agrees to lend to
Borrower, and Borrower agrees to borrow from the Lenders, the aggregate sum of
THREE MILLION FIVE HUNDRED THOUSAND DOLLARS ($3,500,000) as follows:
RENAISSANCE CAPITAL GROWTH & INCOME III, INC. $1,750,000
RENAISSANCE US GROWTH & INCOME TRUST PLC $1,750,000
(b) The Loan shall be disbursed at Loan Closing, subject to the conditions
provided hereunder, and shall be evidenced by the Debentures, in the Principal
Amounts specified above. The Debentures shall rank pari passu with all
Indebtedness of Borrower, other than the Senior Obligations and the Subordinated
Debt.
(c) Unless otherwise mutually agreed, the Loan Closing shall be at the offices
of Renaissance Capital Group, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇.
(d) If, within 10 days of the date of this Agreement, (i) Borrower has failed
to comply with the conditions precedent to the Loan Closing as specified in
Article III hereof (unless compliance with such conditions in whole or in part
has been waived or modified by the Lenders in their sole discretion) or (ii) the
Loan Closing has not occurred (unless the date of such Loan Closing has been
mutually extended), other than as a result of any failure of Lenders to comply
with the terms of this Agreement, then, in either such case, the obligations of
the Lenders under this Agreement shall terminate; provided, however, that
Borrower shall be obligated for payment of the fees and expenses provided in
Section 2.07 due and payable as of such date of termination.
SECTION 2.02. USE OF PROCEEDS.
------------------------------
(a) Borrower intends to use the Loan proceeds for acquisitions, working capital
and general corporate purposes.
(b) Borrower hereby acknowledges that the proceeds from the Loan shall be of
benefit to Borrower for the growth of its business by providing capital which
will provide additional opportunities for Borrower.
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Agreement (Continued)
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SECTION 2.03. INTEREST RATE AND INTEREST PAYMENTS.
--------------------------------------------------
Interest on the Principal Amount outstanding from time to time shall accrue
at the rate of 8.75% per annum, with the first installment of accrued, unpaid
interest being due and payable on APRIL 1, 1998 and subsequent payments of
accrued, unpaid interest being due and payable on the first day of each month
thereafter. Overdue principal and interest on the Debentures shall bear
interest at the maximum rate permitted by applicable law. Interest on the
Principal Amount of each Debenture shall be calculated, from time to time, on
the basis of the actual days elapsed in a year consisting of 365 days.
SECTION 2.04. MATURITY.
-----------------------
If not sooner redeemed or converted, the Debentures shall mature on MARCH
2, 2005, at which time all the remaining unpaid principal, interest and any
other charges then due under this Agreement shall be due and payable in full.
The Debentures may be prepaid without premium or penalty and shall be prepaid
pro rata with any prepayments of Indebtedness (other than Senior Obligations)
which is pari passu with or subordinated to the Debentures.
SECTION 2.05. MANDATORY PRINCIPAL REPAYMENT.
--------------------------------------------
The Debentures shall be subject to mandatory principal repayment as
provided in the Debentures.
SECTION 2.06. REDEMPTION.
-------------------------
The Debentures shall be subject to redemption as provided in the
Debentures.
SECTION 2.07. FEES AND EXPENSES.
--------------------------------
(a) Upon Loan Closing:
(i) Borrower shall pay to Agent a Loan Closing fee of 1.0% of the
Loan.
(ii) Borrower shall pay all unpaid fees and expenses required to be
paid by Borrower on or before the Loan Closing under the Preliminary Outline of
Terms among the parties, including the fees and expenses of Lender's legal
counsel.
(b) Borrower shall also pay to the Agent monthly a monitoring fee of $1,000
per month for consulting and monitoring services, and Borrower shall reimburse
Agent for its reasonable travel and out-of-pocket expenses in monitoring
Borrower's compliance with this Agreement.
--------------------------------------------------------------------------------
9
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 2.08. FINDER'S FEES.
----------------------------
Borrower represents to the Lenders that, except as set forth in Schedule
2.08, no placement fees, commissions, brokerage or finder's fees were incurred
by Borrower in connection with this Agreement or the Debentures. Borrower shall
be responsible for the payment of all such placement fees, commissions,
brokerage or finder's fees.
SECTION 2.09. TAXES.
--------------------
(a) Each Debenture shall be convertible into shares of Common Stock and on
such terms as are stated in the Debentures. Such conversion shall be made
without deduction for any present or future taxes, duties, charges or
withholdings, (excluding, in the case of the Lenders, any foreign taxes, any
federal, state or local income taxes and any franchise taxes or taxes imposed
upon them by the jurisdiction, or any political subdivision thereof, under which
the Lenders are organized or are qualified to do business), and all liabilities
with respect thereto (herein "Taxes") shall be paid by Borrower. If Borrower
shall be required by law to deduct any Taxes for which Borrower is responsible
under the preceding sentence from any sum payable hereunder to the Lenders: (i)
the sum payable shall be increased so that after making all required deductions,
the Lenders shall receive an amount equal to the sum it would have received had
no such deductions been made; (ii) Borrower shall make such deductions; and
(iii) Borrower shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law. Borrower shall
be entitled to any refunds or returns from any such taxing authority.
(b) Except as otherwise set forth in this Agreement or the other Loan
Documents, Borrower shall pay any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies which arise
from any payment made hereunder or under the Loan Documents or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the other Loan Documents (hereinafter referred to as "Other
Taxes").
(c) Borrower shall indemnify the Lenders for the full amount of Taxes and
Other Taxes reasonably paid by the Lenders or any liability (including any
penalties or interest assessed because of Borrower's defaults) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. This indemnification shall be made within thirty (30) days
from the date the Lenders make written demand therefor. The Lenders shall
subrogate any and all rights and claims relating to such Taxes and Other Taxes
to Borrower upon payment of said indemnification.
(d) Without prejudice to the survival of any other agreement of Borrower
hereunder, the agreements and obligations of Borrower in this Section 2.09 shall
survive the payment in full of the Obligation.
(e) Borrower shall have no liability or obligation with respect to taxes on
income recognized by the Lenders with respect to the Debentures.
--------------------------------------------------------------------------------
10
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 2.10. CONVERSION RIGHTS.
--------------------------------
Each Debenture shall be convertible into shares of Common Stock on such
terms and in such amounts as are stated in the Debenture. The holders of the
shares issued upon exercise of the right of conversion as provided in said
Debenture shall be entitled to all the rights of the Lenders as stated in this
Agreement or the other Loan Documents, to the extent such rights are
specifically stated to survive the surrender of the Debenture for conversion as
therein provided.
SECTION 2.11. COLLATERAL, SECURITY AGREEMENTS, PLEDGE AGREEMENT.
----------------------------------------------------------------
The due and prompt performance of the obligations of Borrower to the
Lenders under the Loan Agreement and the Debentures shall be secured by all
tangible and intangible assets of Borrower and the Subsidiaries (exclusive of
mortgages on real property) and shall be evidenced by Security Agreements
executed by and between the Lenders and the Subsidiaries. Financing statements
shall be executed in favor of the Lenders by Borrower and the Subsidiaries.
Borrower shall enter into a Pledge Agreement with the Lenders pledging its
shares in the Subsidiaries. There shall be no prior security interests on any
such assets, except for the security interests granted to SouthTrust Bank,
National Association.
ARTICLE III - CONDITIONS PRECEDENT
----------------------------------
SECTION 3.01. DOCUMENT REQUIREMENTS.
------------------------------------
The obligation of the Lenders to advance funds at the Loan Closing Date
hereof is subject to the condition precedent that, on or before the date of such
advance, the Lenders shall have received the following:
(a) Debentures. Duly executed Debentures from Borrower in the Principal
----------
Amount of Loan, each in amounts as requested by the Lenders, styled "Compass
Bank FBO Renaissance Capital Growth and Income Fund III, Inc.," and "Compass
Bank FBO Renaissance U.S. Growth and Income Trust PLC," which shall be in form
and substance acceptable to the Lenders and their counsel.
(b) Pledge Agreement and Borrower's Security Agreement. Duly executed
--------------------------------------------------
Pledge Agreement, Security Agreement and UCC-1 financing statements from
Borrower, which shall be in form and substance acceptable to the Lenders and
their counsel.
(c) Subsidiaries' Guaranties and Security Agreements. Duly executed
------------------------------------------------
Continuing Guaranties, Security Agreements and UCC-1 financing statements from
each of the Subsidiaries, which shall be in form and substance acceptable to the
Lenders and their counsel.
(d) CEO's Certificate. A true and correct certificate signed by the chief
-----------------
executive officer of Borrower and dated as of the Loan Closing Date stating
that, to the best knowledge and belief of such officer, after reasonable and due
investigation and review of matters pertinent to the subject matter of such
certificate: (i) all of the representations and warranties contained in Article
IV hereof and the other Loan Documents are true and correct in all material
respects as of the Loan Closing Date; and (ii) no event has
--------------------------------------------------------------------------------
11
Agreement (Continued)
--------------------------------------------------------------------------------
occurred and is continuing, or would result from the Loan, which constitutes, or
with notice or lapse of time or both would constitute, a Default or an Event of
Default.
(e) Secretary's Certificates. A signed certificate of the Secretary of
------------------------
Borrower and each Subsidiary which shall certify (i) a copy of the Articles of
Incorporation of Borrower and all amendments thereto, certified by the Secretary
of State of the state of incorporation and dated within ten (10) days prior to
Loan Closing, a copy of the Articles of Incorporation of each Subsidiary and all
amendments thereto, certified by the Secretary of each such Subsidiary as of the
date of such certification; (ii) a copy of the Bylaws of Borrower and each
Subsidiary and all amendments thereto certified by the Secretary of Borrower
and each such Subsidiary as of the date of such certification; (iii) copies of
resolutions, as adopted by Borrower's and each Subsidiary's Board of Directors,
approving the execution, delivery and performance, as applicable, of this
Agreement, the Debentures, the Guaranties and the other Loan Documents,
including the transactions contemplated herein, stating that such resolutions
have been duly adopted, are true and correct, have not been altered or repealed
and are in full force and effect; (iv) certificates of good standing (or other
similar instrument) for Borrower issued by the appropriate official of the state
of incorporation of Borrower and certificates of qualification and good standing
for Borrower issued by the appropriate official of each of the states for which
Borrower is required to be qualified to do business as a foreign corporation,
dated within ten (10) days prior to Loan Closing; and (v) the names of the
officers of Borrower authorized to sign the Loan Documents to be executed by
such officer, together with the true signatures of each of such officers. It is
herewith stipulated and agreed that the Lenders may thereafter rely conclusively
on the validity of this certificate as a representation of the officers of
Borrower and each Subsidiary duly authorized to act with respect to the Loan
Documents until such time as the Lenders shall receive a further certificate of
the Secretary or Assistant Secretary of Borrower and each Subsidiary canceling
or amending the prior certificate and submitting the signatures of the officers
thereupon authorized in such further certificate.
(f) Legal Opinion. A legal opinion from counsel to Borrower, in form and
-------------
substance satisfactory to the Lenders and their counsel.
(g) "Lock-Up" Agreement. "Lock-Up" Agreements, in form and substance
-------------------
satisfactory to the Lenders and their counsel.
(h) Warrants. Duly executed Warrants from Borrower, which shall be in form
--------
and substance acceptable to the Lenders and their counsel.
(i) Subscription Agreements. Duly executed Subscription Agreements from
-----------------------
Borrower, which shall be in form and substance acceptable to the Lenders and
their counsel.
(j) Stock Certificates. Duly executed and authenticated stock certificates
------------------
issued by Borrower to the Lenders.
(k) Other Documents. Such other information, documents and agreements as
---------------
may reasonably be required by the Lenders and the Lenders' counsel to
substantiate Borrower's compliance with the requirements of this Agreement and
the Lenders' compliance with the 1940 Act.
--------------------------------------------------------------------------------
12
Agreement (Continued)
--------------------------------------------------------------------------------
ARTICLE IV - REPRESENTATIONS AND WARRANTIES OF BORROWER
-------------------------------------------------------
All references in this Article to Borrower shall include the Subsidiaries,
unless the context otherwise requires. To induce the Lenders to make the Loan
hereunder, Borrower represents and warrants to the Lenders that:
SECTION 4.01. ORGANIZATION AND GOOD STANDING.
---------------------------------------------
Borrower is duly organized and existing in good standing under the laws of
the state of its incorporation, is duly qualified as a foreign corporation and
in good standing in all states in which failure to qualify would have a Material
Adverse Effect, and has the corporate power and authority to own its properties
and assets and to transact the business in which it is engaged and is or will be
qualified in those states wherein it proposes to transact material business
operations in the future.
SECTION 4.02. AUTHORIZATION AND POWER.
--------------------------------------
Borrower has the corporate power and requisite authority to execute,
deliver and perform the Loan Documents to be executed by Borrower. Borrower is
duly authorized to, and has taken all corporate action necessary to authorize,
execute, deliver and perform the Loan Documents executed by Borrower. Borrower
is and will continue to be duly authorized to perform the Loan Documents
executed by Borrower.
SECTION 4.03. NO CONFLICTS OR CONSENTS.
---------------------------------------
Except as disclosed on Schedule 4.03, neither the execution and delivery of
the Loan Documents, nor the consummation of any of the transactions therein
contemplated, nor compliance with the terms and provisions thereof, will
contravene or materially conflict with any judgment, license, order or permit
applicable to Borrower, or any indenture, loan agreement, mortgage, deed of
trust, or other agreement or instrument to which Borrower is a party or by which
Borrower is or becomes bound, or to which Borrower is or becomes subject, or
violate any provision of the charter or bylaws of Borrower or trigger any
preemptive rights or rights of first refusal of any third party. No consent,
approval, authorization or order of any court or governmental authority or third
party is required in connection with the execution and delivery by Borrower of
the Loan Documents or to consummate the transactions contemplated hereby or
thereby except those that have been obtained.
SECTION 4.04. ENFORCEABLE OBLIGATIONS.
--------------------------------------
The Loan Documents have been duly executed and delivered by Borrower and
are the legal, valid and binding obligations of Borrower, enforceable in
accordance with their respective terms.
SECTION 4.05. NO LIENS.
-----------------------
Except for Permitted Liens, all of the properties and assets owned or
leased by Borrower are free and clear of all Liens and other adverse claims of
any nature, and Borrower has good and marketable title to such
--------------------------------------------------------------------------------
13
Agreement (Continued)
--------------------------------------------------------------------------------
properties and assets. A true and complete list of all known or recorded liens
for borrowed money is disclosed on Schedule 4.05.
SECTION 4.06. FINANCIAL CONDITION.
----------------------------------
Borrower has delivered to the Lenders the balance sheet of Borrower as of
June 30, 1997, and the related statement of income, stockholders' equity and
statement of cash flow for the year then ended, audited by its independent
certified public accountant. Borrower has also delivered to the Lenders the
unaudited balance sheet of Borrower as of December 31, 1997 and the related
unaudited statement of income, stockholders' equity and statement of cash flow
for the six (6) months then ended. Such financial statements fairly present the
financial condition of Borrower as of such dates and have been prepared in
accordance with GAAP (except that unaudited financial statements omit certain
footnotes); and as of the date hereof, there are no obligations, liabilities or
Indebtedness (including contingent and indirect liabilities and obligations) of
Borrower which are (separately or in the aggregate) material and are not
reflected in such financial statements or otherwise disclosed herein or in the
Schedules. Since the date of the above-referenced year end financial statements
and quarterly financial statements, there have not been, except as disclosed in
Schedule 4.06: (i) any Material Adverse Change; (ii) any Dividend declared or
paid or distribution made on the capital stock of Borrower or any capital stock
thereof redeemed or repurchased; (iii) any incurrence of long-term debt by
Borrower, other than the guaranty of the indebtedness of Ad Art Displays, Inc.
to Coast Business Credit; (iv) any salary, bonus or compensation increases to
any officers, key employees or agents of Borrower, other than in the ordinary
course of business and consistent with past practice; or (v) any other material
transaction entered into by Borrower, except in the ordinary course of business
and consistent with past practice.
SECTION 4.07. NO DEFAULT.
-------------------------
No event has occurred and is continuing which constitutes, or with notice
or lapse of time or both, would constitute, a Default or an Event of Default
under this Agreement.
SECTION 4.08. MATERIAL AGREEMENTS.
----------------------------------
Neither Borrower nor any Subsidiary nor any other party is in default, and
no event has occurred and is continuing which, with notice or lapse of time or
both, would constitute a default, under any contract, lease, loan agreement,
indenture, mortgage, security agreement, license agreement or other agreement or
obligation to which it is a party or by which any of its properties is subject
which could reasonably be expected to have a Material Adverse Effect, except as
described on Schedule 4.08. To the best knowledge of Borrower, it is not a
party to, or bound by, any contract or agreement, the faithful performance of
which is so onerous so as to create or to likely create a Material Adverse
Effect on the business, operations or financial condition of Borrower.
--------------------------------------------------------------------------------
14
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 4.09. NO LITIGATION.
----------------------------
Except as disclosed on Schedule 4.09, there are no actions, suits,
investigations, arbitrations or administrative proceedings pending or, to the
best knowledge of Borrower, threatened, against Borrower, and there has been no
change in the status of any of the actions, suits, investigations, litigation or
proceedings disclosed to the Lenders which could reasonably be expected have a
Material Adverse Effect on Borrower or on any transactions contemplated by any
Loan Document. Borrower has not received any claim that Borrower currently
violates any federal, state or local law, ordinance, rule or regulation, which
could have an adverse effect on its business and, to the best of Borrower's
knowledge, no such claim is or has been threatened; and, except as disclosed on
Schedule 4.09, there have been no developments adverse to Borrower with respect
to any pending or threatened claim, action or proceeding of an administrative or
judicial nature.
SECTION 4.10. TAXES.
--------------------
All tax returns required to be filed by Borrower in any jurisdiction have
been filed and all taxes (including mortgage recording taxes), assessments, fees
and other governmental charges upon Borrower or upon any of its properties,
income or franchises now due have been paid, in each case, except where the same
are being contested in good faith by appropriate proceedings, as disclosed on
Schedule 4.10.
Except as disclosed on Schedule 4.10, Borrower has not received any notice
of deficiency or other adjustment from any taxing authority that is unresolved
as of the Loan Closing. No audit or examination, claim or proposed assessment
by any taxing authority is pending or, to the best knowledge of Borrower,
threatened against Borrower or any of its properties. All ad valorem and other
property taxes imposed on Borrower, or that may become a lien on Borrower's
assets and that are due and payable, have been paid in full. Borrower has
withheld or collected from each payment made to each of its U.S. employees the
amount of all taxes (including federal income taxes, Federal Insurance
Contributions Act ("FICA") taxes, and state and local income, payroll, and wage
taxes, among others) required to be withheld or collected.
SECTION 4.11. CAPITALIZATION.
-----------------------------
The authorized capital stock of Borrower consists of 50,000,000 shares of
Common Stock, $.001 par value, of which 4,414,469 shares of Common Stock are
issued and outstanding as of the date hereof. All of such outstanding shares
have been duly authorized and validly issued are fully paid and nonassessable,
and were not issued in violation of the preemptive rights or rights of first
refusal of any person. Schedule 4.11 sets forth all stock options, warrants,
conversion rights, subscription rights, preemptive rights, rights of first
refusal and other rights or agreements to acquire securities of Borrower and any
shares held in treasury or reserved for issue upon exercise of such stock
options, warrants or conversion rights, subscription rights and other rights or
agreements to acquire securities, including the date of termination of such
rights and the consideration therefor. As of the Loan Closing Date, Borrower
does not have class of securities with respect to which a member of a national
securities exchange, broker, or dealer may extend or maintain credit to or for a
customer pursuant to rules or regulation adopted by the Board of Governors of
the Federal Reserve System under Section 7 of the 1934 Act. Borrower has, and
will continue to have as long as the Debentures remain outstanding, authorized
and reserved an adequate number of shares of Common Stock to permit Conversion
of the Debentures.
--------------------------------------------------------------------------------
15
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 4.12. USE OF PROCEEDS.
------------------------------
Borrower intends to use proceeds from the Loan as disclosed in Section 2.02
hereof.
SECTION 4.13. EMPLOYEE MATTERS.
-------------------------------
(a) Except as set forth on Schedule 4.13, Borrower is not a party to any
collective bargaining agreement and is not aware of any activities of any labor
union that is currently seeking to represent or organize its employees;
(b) Borrower is in compliance with all federal, state and municipal laws
respecting employment and employment practices, occupational health and safety,
and wages and hours, and is not engaged in any unfair labor practice, and there
are no arrears in the payment of wages or social security taxes;
(c) there is no unfair labor practice complaint against Borrower pending
before the National Labor Relations Board or any state or local agency;
(d) to the best knowledge of Borrower, there is no pending labor strike or
other material labor trouble affecting Borrower (including, without limitation,
any organizational drive);
(e) to the best knowledge of Borrower, there is no material labor grievance
pending against Borrower;
(f) there is no pending representation question respecting the employees of
Borrower before any local, state or federal agency;
(g) except as set forth on Schedule 4.13, there are no pending proceedings
arising out of or under any collective bargaining agreement to which Borrower is
a party, or to the best knowledge of Borrower, any basis for which a claim may
be made under any collective bargaining agreement to which Borrower is a party;
and
(h) there are no pending proceedings arising out of any employment
discrimination claim or any basis for which any such claim may be made.
SECTION 4.14. EMPLOYEE BENEFIT PLANS.
-------------------------------------
Schedule 4.14 lists (i) any "employee benefit plans" as described in the
regulations promulgated thereunder ("ERISA") (other than a defined contribution
pension plan not requiring any contribution by Borrower, paid time-off policy or
vacation/holiday/sick leave policy, and employee group life and health plans
that are fully funded through commercial insurance) and (ii) any defined benefit
"employee pension benefit plans" (as defined in ERISA). Neither Borrower nor, to
the best knowledge of Borrower, any other person has engaged in a transaction
with respect to any employee benefit plan listed or required to be listed on
Schedule 4.14 which could subject any such plan, Borrower or the Lenders to a
penalty under ERISA or a tax under the Internal
--------------------------------------------------------------------------------
16
Agreement (Continued)
--------------------------------------------------------------------------------
Revenue Code of 1986, as amended (the "Code"), except for those transactions
which could not reasonably be expected to have a Material Adverse Effect. Each
of the employee benefit plans listed or required to be listed on Schedule 4.14
has been operated and administered in accordance with applicable law, including
without limitation ERISA, except for any such failure which would not subject
Borrower or the Lenders to any penalty or other liability and except for any
such failure which would not have an adverse effect upon the applicable plan or
any participant therein. Borrower has not incurred nor presently expects to
incur any liability under Title IV of ERISA that could result in liability to
the Lenders or Borrower. Each employee benefit plan listed or required to be
listed on Schedule 4.14 that is a group health plan within the meaning of
Section 5000(b)(1) of the Code is in compliance with the provisions of Section
4980B(f) of the Code, except for any such non-compliance which would not subject
Borrower or the Lenders to any penalty or liability and except for any such
failure which would not have an adverse effect upon the applicable plan or any
participant therein. There is not any pending or, to the best knowledge of
Borrower, threatened claim by or on behalf of any employee benefit plan, by any
employee covered under any such plan, or otherwise involving any employee
benefit plan (other than routine non-contested claims for benefits).
SECTION 4.15. COMPLIANCE WITH LAWS.
-----------------------------------
Each of Borrower and the Subsidiaries has all requisite licenses, permits
and certificates, including environmental, health and safety permits, from
federal, state and local authorities necessary to conduct its business and own
and operate its assets (collectively, the "Permits"), except for those Permits
the failure of which to obtain could reasonably be expected to have a Material
Adverse Effect. Except as set forth on Schedule 4.15, neither Borrower nor any
Subsidiary is in violation of any law, regulation or ordinance relating to its
business, operations and properties, which individually or in the aggregate
could have a Material Adverse Effect, and the business and operations of
Borrower or any Subsidiary do not violate, in any material respect, any federal,
state, local or foreign laws, regulations or orders, which individually or in
the aggregate could have a Material Adverse Effect. Except as set forth on
Schedule 4.15, Borrower and the Subsidiaries have not received any notice or
communication from any federal, state or local governmental or regulatory
authority or otherwise of any such violation or noncompliance, which
individually or in the aggregate could have a Material Adverse Effect. To the
best of their knowledge, Borrower and the Subsidiaries have not engaged in any
practices in violation of any antitrust law or regulation of any federal, state
or local Governmental Authority.
SECTION 4.16. LICENSES AND PERMITS.
-----------------------------------
Borrower and the Subsidiaries have all licenses and franchises relating to
the operation of their respective businesses as are necessary and required for
such ownership and operation, all of which are in good standing and, except as
expressly set forth on Schedule 4.16, are not subject to renewal within less
than one (1) year.
SECTION 4.17. CONTRACTS.
------------------------
Schedule 4.17 lists all contracts to which Borrower or the Subsidiaries are
a party involving obligations in respect of the business for payment,
performance of services or delivery of goods in excess of $10,000 or which
require Borrower to continue to perform for a period of longer than twelve (12)
months
--------------------------------------------------------------------------------
17
Agreement (Continued)
--------------------------------------------------------------------------------
(the "Scheduled Contracts"). Borrower has delivered to the Lenders true and
correct copies of all the Scheduled Contracts. All of such Scheduled Contracts
are valid and binding obligations of Borrower or the Subsidiaries, are in full
force and effect, and, to the best knowledge of Borrower or the Subsidiaries,
are enforceable against the parties thereto in accordance with their respective
terms. Borrower or the Subsidiaries have not received any notice that the other
parties to the Scheduled Contracts are (i) in default under such Scheduled
Contracts or (ii) consider Borrower to be in default thereunder. Except as
expressly noted in Schedule 4.17, to the best knowledge of Borrower or the
Subsidiaries, no party to any of the Scheduled Contracts intends to terminate or
adversely modify its agreement(s) with respect thereto or adversely change the
volume of business done thereunder.
SECTION 4.18. SHARES ISSUABLE UPON CONVERSION.
----------------------------------------------
The shares of Common Stock of Borrower when issued to the Lenders upon
conversion of the Debentures will be duly and validly issued, fully paid and
nonassessable and in compliance with all applicable securities laws. Such
issuance will not give rise to preemptive rights, rights of first refusal or
similar rights by any other security holder of Borrower.
SECTION 4.19. INSIDER.
----------------------
(a) Neither Borrower, nor any Person having "control" (as that term is
defined in the 1940 Act or in the regulations promulgated pursuant thereto) of
Borrower is an "executive officer," "director," or "principal shareholder" (as
those terms are defined in the ▇▇▇▇ ▇▇▇) of any Lender.
(b) Borrower's 1997 Annual Report on Form 10-KSB discloses all material
transactions required to be disclosed therein.
(c) All agreements between Borrower and any of its officers, directors, and
principal shareholders, including employment agreements, are disclosed in
reports and filings made with the SEC or listed on Schedule 4.19.
SECTION 4.20. SUBSIDIARIES.
---------------------------
(a) All of the Subsidiaries of Borrower are listed on Schedule 4.20.
Except as disclosed on Schedule 4.20, Borrower owns all of the outstanding
capital stock or other equity interests of the Subsidiaries, free and clear of
all adverse claims, other than Liens securing the Senior Obligations. All of
such outstanding capital stock of each Subsidiary has been duly and validly
authorized and issued and is fully paid and nonassessable. All such
Subsidiaries are duly organized and existing in good standing under the laws of
the respective jurisdictions of their incorporation or organization, are duly
qualified as foreign corporations and in good standing in all jurisdictions in
which failure to qualify would have a Material Adverse Effect, and have the
corporate power and authority to own their respective properties and assets and
to transact the business in which they are engaged and are or will be qualified
in those jurisdictions wherein they propose to transact material business
operations in the future.
--------------------------------------------------------------------------------
18
Agreement (Continued)
--------------------------------------------------------------------------------
(b) Except as disclosed on Schedule 4.20, Borrower does not own any equity
or long-term debt interest in any other Person, or any right or option to
acquire any such interest in any such Person.
(c) There are no restrictions on the payment of dividends by or advances
from any Subsidiary to Borrower.
SECTION 4.21. CASUALTIES.
-------------------------
Except as disclosed on Schedule 4.21, neither the business nor the
properties of Borrower is currently affected by any environmental hazard, fire,
explosion, accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or other casualty (whether or not covered
by insurance).
SECTION 4.22. INVESTMENT COMPANY ACT.
-------------------------------------
Borrower is not an "investment company," as defined in Section 3 of the
1940 Act, nor a company that would be an investment company, except for the
exclusions from the definition of an investment company in Section 3(C) of the
1940 Act, and Borrower is not controlled by such a company.
SECTION 4.23. SUFFICIENCY OF CAPITAL.
-------------------------------------
Borrower is, and after consummation of this Agreement and giving effect to
all Indebtedness incurred and transactions contemplated in connection herewith
will be, Solvent.
SECTION 4.24. CORPORATE NAMES.
------------------------------
Borrower has not, during the preceding five (5) years, done business under
or used any assumed, fictitious or trade names, except that Borrower is
qualified to do business as a foreign corporation in Florida under the name "La-
Man Corporation of Nevada."
SECTION 4.25. INSURANCE.
------------------------
All of the insurable properties of Borrower are insured for its benefit
under valid and enforceable policies issued by insurers of recognized
responsibility in amounts and against such risks and losses as is customary in
Borrower's industry. Schedule 4.25 sets forth all of Borrower's property
insurance policies.
SECTION 4.26. INTELLECTUAL PROPERTY.
------------------------------------
Borrower owns or is licensed to use all material trademarks, service marks,
trade names, patents and copyrights presently used to conduct its business,
except those for which the failure to obtain could not be reasonably expected to
have a Material Adverse Effect. To the best of its knowledge, Borrower has the
right to use such intellectual property rights without infringing or violating
the rights of any third parties. No claim has been asserted by any person to
the ownership of or right to use any such rights or challenging or questioning
the validity or effectiveness of any such license or agreement. Borrower is not
in default of any
--------------------------------------------------------------------------------
19
Agreement (Continued)
--------------------------------------------------------------------------------
such license agreements in any material respect, and no event has occurred and
is continuing which, with notice or lapse of time or both, would constitute a
material default. Each license agreement is enforceable in accordance with its
terms and has not been canceled, abandoned or terminated, nor has Borrower
received notice thereof. There are no claims for trademark or copyright
infringement pending or threatened against Borrower or the Subsidiaries or their
respective officers or directors. Neither Borrower nor any Subsidiary is
currently using copyrightable material for which Borrower or any Subsidiary
needs, but does not have, a license to conduct its existing business. Neither
Borrower nor any Subsidiary is currently using any trademarks for which Borrower
or any Subsidiary needs, but does not have, a valid character or trademark
license to conduct its existing business.
SECTION 4.27. REAL PROPERTY.
---------------------------
(a) Set forth on Schedule 4.27 is a list of the addresses of each parcel of
real property owned by or leased to Borrower, as indicated on the Schedule.
(b) Borrower has delivered to the Lenders true and correct copies of all of
its leases or subleases and all related amendments, supplements and
modifications and related documents (the "Scheduled Lease Documents"), which
require payments or contingent payments by Borrower of any of the Subsidiaries
subsequent to the date hereof in excess of $25,000. There are no other
agreements, written or oral, between Borrower and any third parties claiming an
interest in Borrower's interest in the Scheduled Leases or otherwise relating to
Borrower's use and occupancy of any leased real property. All such leases are
valid and binding obligations of the parties thereto, are in full force and
effect and enforceable against the parties thereto in accordance with their
terms; and no event has occurred including, but not limited to, the executed,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby which (whether with or without notice, lapse of
time or both) would constitute a default thereunder. No property leased under
any lease which the Lenders have agreed to assume is subject to any lien,
encumbrance, easement, right-of-way, building or use restriction, exception,
variance, reservation or limitation as might in any respect interfere with or
impair the present and continued use thereof in the usual and normal conduct of
Borrower's business.
(c) On the Loan Closing Date, Borrower will hold of record good, marketable
and insurable title to the property described in Schedule 4.27 free and clear of
all title defects, liens, pledges, claims, charges, rights of first refusal,
security interests or other encumbrances and not, in the case of the real
property, subject to any rights-of-way, building or use restrictions,
exceptions, variances, reservations or limitations of any nature whatsoever,
except with respect to all such properties, (i) matters set forth in Schedule
4.27, and (ii) liens for current taxes and assessments not in default
(collectively, the "Permitted Encumbrances"). Notwithstanding the foregoing,
Borrower's representations and warranties regarding title defects with respect
to the real property is limited to defects arising by, through or under
Borrower, but not otherwise. Borrower and the Subsidiaries have adequate title
insurance coverage for such properties. All real property and structures owned
or leased by Borrower, and all equipment owned or leased by Borrower, are in
good operating condition and repair (ordinary wear and tear excepted), taking
into account their respective ages and consistent with their past uses, and are
adequate for the uses to which they are being put. Except as set forth on
Schedule 4.27, to Borrower's best knowledge, the buildings and improvements
owned or leased by Borrower are structurally sound. Borrower has not received
any notice of any violation of any building,
--------------------------------------------------------------------------------
20
Agreement (Continued)
--------------------------------------------------------------------------------
zoning or other law, ordinance or regulation in respect of such property or
structures or their use by Borrower. To Borrower's best knowledge, there is no
existing, proposed or contemplated plan to modify or realign any street or
highway or any existing, proposed or contemplated eminent domain proceeding that
would result in the taking of all or any part of the real property or that would
materially adversely affect the current or planned use of the real property or
any part thereof. The facilities consisting of owned personal property are
subject to no liens or encumbrances except the security interests of record set
forth on Schedule 4.27, which Schedule is a copy of a Uniform Commercial Code
("UCC") search duly obtained by Borrower in the last thirty (30) days and which
search shows security interests of record relating to such facilities in the
States of Florida, California and Nevada. Borrower agrees to remove all security
interests reflected on such UCC search, if any, prior to the Loan Closing
(except those approved by the Lenders in writing) and to remove any other
security interests filed with respect to such facilities between the date of
such UCC search and the date of the Loan Closing. Schedule 4.27 also describes
all construction work, if any, which Borrower has contracted for and which is
presently in progress in respect of the business, and also contains a good faith
estimate, as of the date of this Agreement, of the cost and timetable to
complete each such project. Copies of the architect's, and the contractor's, if
any, plans and specifications with respect to such construction in progress have
been delivered to the Lenders.
SECTION 4.28. ENVIRONMENTAL.
----------------------------
(a) Borrower is currently in compliance with all Environmental Laws (as
defined below) which compliance includes, but is not limited to, the possession
by Borrower of all permits and other governmental authorization required under
applicable Environmental Laws, and compliance in all material respects with the
terms and conditions thereof, except in any case where the failure to be in
compliance would not have a Material Adverse Effect.
(b) Except as set forth on Schedule 4.28, Borrower has not stored, disposed
of or arranged for disposal of any Materials of Environmental Concern (as
defined below) on any of the real property, except in compliance with applicable
Environmental Laws.
(c) Borrower has not received any communication (written or oral), whether
from a governmental authority, citizens group, employee or otherwise, that
alleges that Borrower is not in full compliance with Environmental Laws, and
there are no circumstances that may prevent or interfere with such full
compliance in the future. There is no Environmental Claim (as defined below)
pending or, to Borrower's best knowledge, threatened against, or which has been
made known to, Borrower.
(d) Except as set forth on Schedule 4.28, during the period the facilities
have been held by Borrower, its affiliates or, to Borrower's best knowledge, its
predecessors in interest, there have been no actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the generation,
handling, transportation, treatment, storage, release, emission, discharge,
presence or disposal of any Hazardous Substance (as defined below), that could
form the basis of any Environmental Claim against Borrower under any
Environmental Law in effect at, or at any time prior to, the Loan Closing.
(e) Without in any way limiting the generality of the foregoing, (i) there
are no underground storage tanks located on the property owned or leased by
Borrower or the Subsidiaries, (ii) there is no
--------------------------------------------------------------------------------
21
Agreement (Continued)
--------------------------------------------------------------------------------
asbestos contained in or forming part of any building, building component,
structure or office space owned or leased by Borrower or the Subsidiaries, and
(iii) no polychlorinated biphenyls ("PCBs") are used or stored at any property
owned or leased by Borrower or the Subsidiaries.
The following terms shall have the following meanings:
"Environmental Claim" means any claim, action, cause of action,
investigation or notice (written or oral) by any person or entity alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries or penalties) arising out
of, based on or resulting from (a) the presence, or release into the
environment, of any Hazardous Substances at any location, whether or not owned
or operated by Borrower or (b) circumstances forming the basis of any violation,
or alleged violation, of any Environmental Law.
"Environmental Laws" means the federal, state and local environmental,
health or safety laws, regulations, ordinances, rules and policies and common
law in effect on the date hereof and the Loan Closing Date relating to the use,
refinement, handling, treatment, removal, storage, production, manufacture,
transportation or disposal, emissions, discharges, releases or threatened
releases of materials of environmental concern, or otherwise relating to
protection of the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata), as the same may
be amended or modified to the date hereof and the Loan Closing Date, including,
without limitation, the statutes listed below:
Federal Resources Conservation and Recovery Act of 1976, 42
U.S.C. (S) 6901, et seq.
-- ---
Federal Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. (S) 9601, et seq.
-- ---
Federal Clean Air Act, 42 U.S.C. (S) 7401, et seq.
-- ---
Federal Water Pollution Control Act, Federal Clean Water Act of
1977, 33 U.S.C. (S) 1251, et seq.
-- ---
Federal Insecticide, Fungicide and Rodenticide Act, Federal
Pesticide Act of 1978, 7 U.S.C. (S) 136, et seq.
-- ---
Federal Hazardous Materials Transportation Act, 48 U.S.C. (S)
1801, et seq.
-- ---
Federal Toxic Substances Control Act, 15 U.S.C. (S) 2601, et seq.
-- ---
Federal Safe Drinking Water Act, 42 U.S.C. (S) 300f, et seq.
-- ---
--------------------------------------------------------------------------------
22
Agreement (Continued)
--------------------------------------------------------------------------------
"Hazardous Substances" means any toxic or hazardous waste, pollutants
or substances, including, without limitation, asbestos, PCBs, petroleum products
and byproducts, substances defined or listed as "hazardous substance," "toxic
substance," "toxic pollutant" or similarly identified substance or mixture, in
or pursuant to any Environmental Law.
SECTION 4.29. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
---------------------------------------------------------
All representations and warranties of Borrower herein shall survive the
Loan Closing and the delivery of the Debentures, and any investigation at any
time made by or on behalf of the Lenders shall not diminish the Lenders' right
to rely on Borrower's representations and warranties as herein set forth.
SECTION 4.30. FULL DISCLOSURE.
------------------------------
Neither the representations, warranties, schedules, financial statements
referenced in Section 4.06, nor any business plan, offering memorandum,
prospectus, SEC registration statement, report or proxy statement, certificate,
document or written statement to be delivered or caused to be delivered by
Borrower or any of its agents or representatives to the Lenders in connection
with this Agreement, contains or will contain, as of the date thereon, any
untrue statement of a material fact or omits or will omit to state any material
fact necessary to keep the statements contained herein or therein from being
misleading in any material respect.
ARTICLE V - AFFIRMATIVE COVENANTS OF BORROWER
---------------------------------------------
So long as any part of the Debentures remains unpaid or has not been
redeemed or converted hereunder, and until such payment, redemption or
conversion in full, unless the Lenders shall otherwise consent in writing,
Borrower agrees that:
SECTION 5.01. FINANCIAL STATEMENTS, REPORTS AND DOCUMENTS.
----------------------------------------------------------
(a) Borrower shall accurately and fairly maintain its books of account in
accordance with GAAP, retain BDO ▇▇▇▇▇▇▇ LLP, or other such firm of independent
certified public accountants, requested by Borrower and approved by the Lenders,
to make annual audits of its accounts in accordance with generally accepted
auditing standards.
(b) Borrower shall provide the following reports and information to each
Lender:
(i) As soon as available, and in any event within forty-five (45)
days after the close of each fiscal quarter, Borrower's quarterly reports on
Form 10-QSB with exhibits for said period. As soon as available, Borrower's
reports on Form 8-KSB with any exhibits.
(ii) As soon as available, and in any event within ninety (90) days
after the close of each fiscal year, Borrower's annual report on Form 10-KSB
with exhibits for said period.
--------------------------------------------------------------------------------
23
Agreement (Continued)
--------------------------------------------------------------------------------
(iii) Each fiscal quarter, concurrent with the periodic report required
above, a certificate executed by the Chief Financial Officer or Chief Executive
Officer of Borrower, (A) stating that a review of the activities of Borrower
during such fiscal period has been made under his supervision and that Borrower
has observed, performed and fulfilled each and every obligation and covenant
contained herein and is not in default under any of the same or, if any such
default shall have occurred, specifying the nature and status thereof, and (B)
stating that Borrower and the Subsidiaries are in compliance as of the end of
such fiscal quarter with the agreed minimum financial ratios and standards set
forth in Schedule 7.01 to this Agreement.
(iv) Promptly (but in any event within five (5) business days) upon
becoming aware of the existence of any condition or event which constitutes a
Default or which, with notice or the passage of time or both would become a
Default or an Event of Default, written notice specifying the nature and period
of existence thereof and the action which Borrower is taking or proposes to take
with respect thereto.
(v) Promptly (but in any event within five (5) business days) upon
the receipt thereof by Borrower or the Board of Directors of Borrower, copies of
all reports, all management letters and other detailed information submitted to
Borrower or the Board by independent accountants in connection with each annual
or interim audit or review of the accounts or affairs of Borrower made by such
accountants.
(vi) Promptly (but in any event within five (5) business days), such
other information relating to the finances, budgets, properties, business and
affairs of Borrower and each Subsidiary, as the Lenders or the Agent may
reasonably request from time to time.
(vii) Promptly upon its becoming available, one copy of each
financial statement, report, press release, notice or proxy statement sent by
Borrower to stockholders generally, and of each regular or periodic report,
registration statement or prospectus filed by Borrower with any securities
exchange or the SEC or any successor agency, and of any order issued by any
Governmental Authority in any proceeding to which Borrower is a party.
SECTION 5.02. PREPARATION OF BUDGETS.
-------------------------------------
(a) Prior to the beginning of Borrower's fiscal year Borrower agrees to
prepare and submit to the Board and furnish to each Lender a copy of, an annual
plan for such year which shall include, without limitation, plans for expansion,
if any, plans for incurrences of Indebtedness and projections regarding other
sources of funds, quarterly projected capital and operating expense budgets,
cash flow statements, profit and loss statements and balance sheet projections,
itemized in such detail as the Board may request.
(b) Borrower shall furnish to the Lenders monthly financial reports,
including budgets (as currently used by management in the conduct of business)
within 45 days of the end of each month until March 2, 1999 and within 30 days
of the end of each month thereafter.
(c) Borrower agrees that it will review its operations with Agent. Such
operations reviews will be in such depth and detail as Agent shall reasonably
request and will be held as reasonably necessary, generally once a fiscal
quarter.
--------------------------------------------------------------------------------
24
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 5.03. PAYMENT OF TAXES AND OTHER INDEBTEDNESS.
------------------------------------------------------
Borrower shall, and shall cause its Subsidiaries to, pay and discharge (i)
all taxes, assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any property belonging to it, before
delinquent, (ii) all lawful claims (including claims for labor, materials and
supplies), which, if unpaid, will give rise to a Lien upon any of its property,
other than a Permitted Lien, and (iii) all of its other Indebtedness in
accordance with their respective terms, except as prohibited hereunder;
provided, however, that Borrower and its Subsidiaries, if any, shall not be
required to pay any such tax, assessment, charge, levy or other claim if and so
long as the amount, applicability or validity thereof shall currently be
contested in good faith by appropriate proceedings and appropriate accruals and
reserves therefor have been established in accordance with GAAP.
SECTION 5.04. MAINTENANCE OF EXISTENCE AND RIGHTS; CONDUCT OF BUSINESS.
-----------------------------------------------------------------------
Subject to Section 6.13, Borrower shall, and shall cause its operating
Subsidiaries to, preserve and maintain their respective corporate existence and
all of their respective material rights and privileges necessary in the normal
conduct of their respective businesses, and to conduct their respective
businesses in an orderly and efficient manner consistent with good business
practices and in accordance with all valid regulations and orders of any
Governmental Authority. Borrower shall keep its principal place of business
within the United States.
SECTION 5.05. SEC FILINGS.
--------------------------
So long as Borrower has a class of securities registered pursuant to
Section 12 of the 1934 Act, Borrower shall duly file, when due, all reports and
proxy statements required of a company whose securities are registered for
public trading under and pursuant to the 1934 Act and any rules and regulations
issued thereunder, and to preserve and maintain its registration thereunder.
SECTION 5.06. NOTICE.
---------------------
Borrower shall promptly notify the Lenders of (i) any Material Adverse
Change, (ii) any default under any Senior Obligations, other Indebtedness having
an aggregate principal amount in excess of $50,000, material agreement, contract
or other instrument to which it is a party or by which any of its properties are
bound, or any acceleration of the maturity of any Indebtedness having an
aggregate principal amount in excess of $50,000, if any, (iii) any material
adverse claim against or affecting Borrower or its Subsidiaries, if any, or any
of its properties, and (iv) the commencement of, and any determination in, any
material litigation with any third party or any proceeding before any
Governmental Authority.
SECTION 5.07. COMPLIANCE WITH LOAN DOCUMENTS.
---------------------------------------------
Borrower shall, and shall cause each of its Subsidiaries to, promptly
comply with any and all covenants and provisions of the Loan Documents.
--------------------------------------------------------------------------------
25
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 5.08. COMPLIANCE WITH MATERIAL AGREEMENTS.
--------------------------------------------------
Borrower shall, and shall cause each of its Subsidiaries to, comply in all
material respects with all material agreements, indentures, mortgages or
documents binding on it or affecting its properties or business.
SECTION 5.09. OPERATIONS AND PROPERTIES.
----------------------------------------
Borrower shall, and shall cause each of its Subsidiaries to, act prudently
and in accordance with customary industry standards in managing or operating its
assets, properties, business and investments. Borrower shall, and shall cause
each of its Subsidiaries to, keep in good working order and condition, ordinary
wear and tear excepted, all of its assets and properties which are necessary to
the conduct of its business.
SECTION 5.10. BOOKS AND RECORDS; ACCESS.
----------------------------------------
Borrower shall, and shall cause each of its Subsidiaries to, maintain
complete and accurate books and records of its transactions in accordance with
good accounting practices. Borrower shall give each duly authorized
representative of the Lenders access during all normal business hours, upon
reasonable notice, to, and shall permit such representative to examine, copy or
make excerpts from, any and all books, records and documents in the possession
of Borrower and its Subsidiaries and relating to its affairs, and to inspect any
of the properties of Borrower and its Subsidiaries; provided that the Lender
agrees that any such inspection will be performed so as not to interfere with
Borrower's normal business operations. Borrower shall make a copy of this
Agreement, along with any waivers, consents, modifications or amendments,
available for review at its principal office by the Lenders or the Lenders'
representatives.
SECTION 5.11. COMPLIANCE WITH LAW.
----------------------------------
Borrower shall, and shall cause each of its Subsidiaries to, comply in all
material respects with all applicable laws, rules, regulations, ordinances and
all orders and decrees of any Governmental Authority applicable to it or any of
its properties, businesses, or operations.
SECTION 5.12. INSURANCE.
------------------------
Borrower shall, and shall cause each of its Subsidiaries to, maintain such
worker's compensation insurance, liability insurance and insurance on its
properties, assets and business, now owned or hereafter acquired, against such
casualties, risks and contingencies, and in such types and amounts, as are
consistent with customary practices and standards of companies engaged in
similar businesses.
SECTION 5.13. AUTHORIZATIONS AND APPROVALS.
-------------------------------------------
Borrower shall, and shall cause each of its Subsidiaries to, promptly
obtain, from time to time at its own expense, all such governmental licenses,
authorizations, consents, permits and approvals as may be required to enable it
to comply with its obligations hereunder and under the other Loan Documents.
--------------------------------------------------------------------------------
26
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 5.14. ERISA COMPLIANCE.
-------------------------------
Borrower shall (i) at all times, make prompt payment of all contributions
required under all Plans, if any, and shall meet the minimum funding standards
set forth in ERISA with respect to its Plans subject to ERISA, if any, (ii)
notify the Lenders immediately of any fact in connection with any of its Plans,
which might constitute grounds for termination thereof by the Pension Benefit
Guaranty Corporation or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan, together with a statement,
if requested by the Lenders, as to the reason therefor and the action, if any,
proposed to be taken with respect thereto, and (iii) furnish to the Lenders,
upon their request, such additional information concerning any of its Plans as
may be reasonably requested.
SECTION 5.15. FURTHER ASSURANCES.
---------------------------------
Borrower shall, and shall cause each of its Subsidiaries to, make, execute
or endorse, and acknowledge and deliver or file or cause the same to be done,
all such notices, certifications and additional agreements, undertakings,
transfers, assignments, or other assurances, and take any and all such other
action, as the Lenders may, from time to time, deem reasonably necessary or
proper in connection with any of the Loan Documents, or the obligations of
Borrower or its Subsidiaries, if any, thereunder, which the Lenders may request
from time to time.
SECTION 5.16. INDEMNITY BY BORROWER.
------------------------------------
Borrower shall indemnify, save, and hold harmless the Lenders and their
directors, officers, lenders, attorneys, and employees (singularly or
collectively, the "Indemnitee") from and against (i) any and all claims,
demands, actions or causes of action that are asserted against any Indemnitee if
the claim, demand, action or cause of action directly or indirectly relates to
this Agreement and the other Loan Documents issued pursuant thereto, the use of
proceeds of the Loans, or the relationship of Borrower and the Lenders under
this Agreement or any transaction contemplated pursuant to this Agreement, (ii)
any administrative or investigative proceeding by any Governmental Authority
directly or indirectly related to a claim, demand, action or cause of action
described in clause (i) above, and (iii) any and all liabilities, losses, costs,
or expenses (including reasonable attorneys' fees and disbursements) that any
Indemnitee suffers or incurs as a result of any of the foregoing; provided,
however, that Borrower shall have no obligation under this Section 5.16 to the
Lenders with respect to any of the foregoing arising out of the gross negligence
or willful misconduct of the Lenders or their assignees or the breach by any
Lender or their assignees of this Agreement or any other Loan Document or other
document executed in connection with any of the aforesaid, the breach by the
Lenders or their assignees of any intercreditor or participation agreement or
commitment with other parties, the violation or alleged violation of any law,
rule or regulation by the Lenders or their assignees, or from the transfer or
disposition by the Lenders of any Debenture or the Common Stock issued upon
conversion of the Debenture. If any claim, demand, action or cause of action is
asserted against any Indemnitee, such Indemnitee shall promptly notify Borrower,
but the failure to so promptly notify Borrower shall not affect Borrower's
obligations under this Section unless such failure materially prejudices
Borrower's right or ability to participate in the contest of such claim, demand,
action or cause of action, as hereinafter provided. In the event that such
Indemnitee's failure to properly notify Borrower materially prejudices
Borrower's right or ability to participate in the contest of such claim, demand,
action, or cause
--------------------------------------------------------------------------------
27
Agreement (Continued)
--------------------------------------------------------------------------------
of action, then said Indemnitee shall have no right to receive, and Borrower
shall have no obligation to pay, any indemnification amounts hereunder. Borrower
may elect to defend any such claim, demand, action or cause of action (at its
own expense) asserted against said Indemnitee and, if requested by Borrower in
writing and so long as no Default or Event of Default shall have occurred and be
continuing, such Indemnitee (at Borrower's expense) shall in good faith contest
the validity, applicability and amount of such claim, demand, action or cause of
action and shall permit Borrower to participate in such contest. Any Indemnitee
that proposes to settle or compromise any claim or proceeding for which Borrower
may be liable for payment to or on behalf of an Indemnitee hereunder shall give
Borrower written notice of the terms of such proposed settlement or compromise
reasonably in advance of settling or compromising such claim or proceeding and
shall obtain Borrower's written concurrence thereto. In the event that said
Indemnitee fails to obtain Borrower's prior written consent to any such
settlement or compromise, said Indemnitee shall have no right to receive and
Borrower shall have no obligation to pay any indemnification amounts hereunder.
Each Indemnitee may employ counsel, which counsel shall be reasonably acceptable
to Borrower, in enforcing its rights hereunder and in defending against any
claim, demand, action, or cause of action covered by this Section 5.16;
provided, however, that each Indemnitee shall endeavor in connection with any
matter covered by this Section 5.16 which also involves any other Indemnitee,
use reasonable efforts to avoid unnecessary duplication of effort by counsel for
all Indemnitees, including by allowing Borrower to select one lawyer for all
parties, such selection to be subject to the approval of such parties, which
approval shall not be unreasonably withheld. Any obligation or liability of
Borrower to any Indemnitee under this Section 5.16 shall survive the expiration
or termination of this Agreement and the repayment of the Debentures.
SECTION 5.17. RESERVATION OF SHARES.
------------------------------------
Borrower shall at all times reserve and keep available sufficient
authorized and unissued shares of Common Stock to effect the conversion of the
Debentures and the exercise of the Warrants.
SECTION 5.18. OWNERSHIP OF SUBSIDIARIES.
----------------------------------------
Borrower shall own at all times all of the capital stock, or other equity
interests in, of the Subsidiaries.
SECTION 5.19. RETENTION OF STOCK OWNERSHIP.
-------------------------------------------
(a) Borrower shall not offer, sell or otherwise dispose of any shares of
Common Stock or securities exercisable or convertible into shares of Common
Stock for a period of twelve (12) months following the Loan Closing without the
written approval of the Lenders, other than (i) Common Stock issued upon the
conversion of any of the Debentures; (ii) Common Stock issued upon exercise of
any outstanding warrants, options or convertible debt instruments; (iii) Common
Stock issued upon exercise of outstanding employee stock options; (iv) up to
200,000 shares of Common Stock issuable upon exercise of the Warrants; (v)
Common Stock issued by Borrower in a registered public offering; and (vi) up to
200,000 shares of Common Stock issuable upon exercise of options or warrants to
be granted to its investment advisors for consulting services or to employees
under its employee stock option and stock compensation plans.
--------------------------------------------------------------------------------
28
Agreement (Continued)
--------------------------------------------------------------------------------
(b) J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ will execute and deliver Lock-Up
Agreements at the Loan Closing which shall provide that they will not offer,
sell or otherwise dispose of the shares of Common Stock beneficially owned or
controlled by them (including subsequently acquired shares or securities
exercisable or convertible into shares), except for intra-family transfers or
estate planning purposes, for a period of twelve (12) months following the Loan
Closing. Thereafter, each such person shall only sell such securities pursuant
to Rule 144, without the consent of the Lenders, except for intra-family
transfer or estate planning purposes, until the Debentures have been paid in
full.
ARTICLE VI - NEGATIVE COVENANTS OF BORROWER
-------------------------------------------
So long as any part of the Debentures has not been redeemed or converted
hereunder, and until such redemption or conversion in full, unless the Lenders
shall otherwise consent in writing, Borrower agrees that:
SECTION 6.01. LIMITATION ON INDEBTEDNESS.
-----------------------------------------
At Loan Closing, Borrower and its Subsidiaries shall not have any
outstanding Indebtedness, except Indebtedness arising under this Agreement, the
Debentures, the Guaranties, Permitted Indebtedness or as set forth in Schedule
6.01. Borrower and its Subsidiaries will not incur or guarantee any
Indebtedness senior to or pari passu with the Debentures, without the consent of
the Lenders, except for bank debt and asset-based loans for Borrower's
operations and acquisitions, and the guaranties by Borrower of up to $6,000,000
of Indebtedness of Ad Art Displays, Inc. to Coast Credit and third-party
lessors.
SECTION 6.02. LIMITATION ON LIENS.
----------------------------------
Borrower shall not, and shall not permit its Subsidiaries to, create,
cause, incur, permit, suffer to exist any Lien upon any of its properties or
assets, other than Permitted Liens.
SECTION 6.03. LIMITATION ON INVESTMENTS.
----------------------------------------
Borrower shall not, and shall not permit its Subsidiaries to, make or have
outstanding any Investments in any Person, except for Borrower's or any
Subsidiary's acquisition or ownership of stock of or other equity interests in
Subsidiaries (including Persons that will be Subsidiaries after giving effect to
such Investments), loans and other transactions between Borrower and any
Subsidiaries, short term bank deposits, money market investments, investment-
grade commercial paper, government securities and such other "cash equivalent"
investments as the Lenders may from time to time approve, and customer
obligations and receivables arising out of sales or leases made or the rendering
of services in the ordinary course of business.
SECTION 6.04. ALTERATION OF MATERIAL AGREEMENTS.
------------------------------------------------
Borrower shall not, and shall not permit its Subsidiaries to, consent to or
permit any alteration, amendment, modification, release, waiver or termination
of any material agreement to which it is party, other than in the ordinary
course of business.
--------------------------------------------------------------------------------
29
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 6.05. TRANSACTIONS WITH AFFILIATES.
-------------------------------------------
Except as disclosed in Schedule 6.05, Borrower shall not, and shall not
permit its Subsidiaries to, enter into any transaction not in the ordinary
course of business with, or pay any management fees to, any Affiliate, except
for intercompany transactions, without the consent of the Lenders, unless the
terms thereof (i) are no less favorable to Borrower or such Subsidiary than
those that could be obtained at the time of such transaction in arm's-length
dealings with a Person who is not an Affiliate, or (ii) if such transaction
involves an amount less than $50,000, are set forth in writing and have been
approved by a majority of the members of the Board of Directors having no
personal stake in the transaction. Notwithstanding the foregoing, Borrower may
grant options to employees or directors if otherwise permitted under this
Agreement.
SECTION 6.06. LIMITATIONS ON ACQUISITION OF NONRELATED BUSINESS.
----------------------------------------------------------------
Borrower shall not, and shall not permit its Subsidiaries to, engage in any
line of business or acquire any new product lines or business or acquire any
companies unless such new product line or business of Borrower acquired is
primarily involved in, or substantially similar or related to, Borrower's
current lines of business.
SECTION 6.07. LIMITATION ON SALE OF PROPERTIES.
-----------------------------------------------
Borrower shall not, and shall not permit its Subsidiaries to, (i) sell,
assign, convey, exchange, lease or otherwise dispose of any of its properties,
rights, assets or business (including the capital stock of its operating
Subsidiaries), whether now owned or hereafter acquired, without the consent of
the Lenders, except in the ordinary course of business, or (ii) sell, assign or
discount any accounts receivable, except in the ordinary course of business
(which shall include receivable financing or securitization), in each case
without the consent of the Lenders; provided, however, that Borrower may sell
its securities to unaffiliated third parties for fair market value and to
employees under its existing stock option plan.
SECTION 6.08. FISCAL YEAR AND ACCOUNTING METHOD.
------------------------------------------------
Borrower shall not, and shall not permit its Subsidiaries to, change its
fiscal year or method of accounting, except as permitted by GAAP.
SECTION 6.09. LIQUIDATION.
--------------------------
Borrower shall not, and shall not permit its Subsidiaries to, (i) dissolve
or liquidate (except for dissolution or liquidation of inactive Subsidiaries in
the ordinary course of business) or (ii) enter into any other transaction that
has a similar effect.
SECTION 6.10. MATERIAL AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS.
-------------------------------------------------------------------------
Borrower shall not, and shall not permit its Subsidiaries to, amend its
Certificate or Articles of Incorporation (or other charter document) or bylaws
in any material respect, without the consent of the Lenders.
--------------------------------------------------------------------------------
30
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 6.11. EXECUTIVE COMPENSATION.
-------------------------------------
(a) Borrower will not increase the salary, bonus, or other compensation
programs (whether in cash, securities, or other property, and whether payment is
deferred or current) of its five most senior executive officers, unless such
compensation increase is approved by a majority of the Board or a Compensation
Committee of the Board, a majority of whom shall be nonemployee Directors.
(b) Borrower shall not implement any bonus, profit sharing or other
incentive plans, until such plans are formally adopted by the majority of the
Board or a Compensation Committee of the Board, a majority of whom shall be
nonemployee Directors. Borrower's executive compensation shall be consistent the
Board.
SECTION 6.12. RESTRICTED PAYMENTS.
----------------------------------
Borrower shall not (i) without the consent of the Lenders, declare or pay
any Dividend (other than stock dividends) or make any other cash distribution on
(a) any Common Stock, (b) any Preferred Stock, if at the time of such
declaration or payment, Borrower is in Default with respect to the Loan, (ii)
purchase, redeem, or otherwise acquire any shares of Common Stock or any shares
of Preferred Stock, without the consent of the Lenders, (iii) make any payments
of Indebtedness (other than Senior Obligations) which are pari passu or
subordinated to the Debentures, if at the time of such payment, Borrower is in
Default with respect to the Loan, or (iv) make any prepayments of Indebtedness
(other than Senior Obligations) which are pari passu or subordinated to the
Debentures, unless the Debentures are prepaid on a pro rata basis, without the
consent of the Lenders. Borrower shall not permit its Subsidiaries to enter into
any agreements restricting the payment of dividends from the Subsidiaries to
Borrower, without the consent of the Lenders.
SECTION 6.13. CONSOLIDATION OR MERGER.
--------------------------------------
Borrower shall not consolidate with or merge into any other corporation,
unless the surviving corporation after such merger or consolidation will not be
in Default and the surviving corporation becomes a party to this Agreement.
Subsidiaries shall only consolidate with or merge into Borrower or another
Subsidiary; provided, however, that a Subsidiary may merge or consolidate with
any other entity as long as such Subsidiary is the surviving corporation of such
merger or consolidation, and Borrower is not in Default.
ARTICLE VII - COVENANTS OF MAINTENANCE OF FINANCIAL STANDARDS
-------------------------------------------------------------
SECTION 7.01. FINANCIAL RATIOS.
-------------------------------
So long as any of the Debentures have not been redeemed or converted
hereunder, and until such redemption or conversion has been made in full, or
unless the Lenders shall otherwise consent in writing, Borrower, on a
consolidated basis, shall be in compliance with the agreed minimum financial
ratios and standards provided in Schedule 7.01, as of the end of each fiscal
quarter of Borrower and as set forth in its most recent quarterly compliance
certificates delivered pursuant to Section 5.01.
--------------------------------------------------------------------------------
31
Agreement (Continued)
--------------------------------------------------------------------------------
ARTICLE VIII - EVENTS OF DEFAULT
--------------------------------
SECTION 8.01. EVENTS OF DEFAULT.
--------------------------------
An "Event of Default" shall exist if any one or more of the following
events (herein collectively called "Events of Default") shall occur and be
continuing:
(a) Borrower shall fail to pay when due (or shall state in writing an
intention not to pay or its inability to pay) any installment of interest on or
principal of, any Debenture or any fee, expense or other payment required
hereunder and such failure to pay shall continue unremedied for a period three
(3) business days;
(b) Any representation or warranty made under this Agreement, or any of the
other Loan Documents, or in any certificate or statement furnished or made to
Agent pursuant hereto or in connection herewith or with the Loans hereunder, or
in any Subsidiary Document shall prove to be untrue or inaccurate in any
material respect as of the date on which such representation or warranty was
made and is not remedied within ten (10) days after the occurrence thereof;
(c) Default shall occur in the performance of any of the covenants or
agreements of Borrower or of its Subsidiaries contained herein, or in any of
the other Loan Documents or in any Subsidiary Document, which Default is not
remedied within ten (10) days after the occurrence of such breach or failure to
perform;
(d) Default shall occur in the payment of any Senior Obligations or in the
payment of any other Indebtedness having an aggregate principal amount in excess
of $50,000, or nonmonetary default shall occur in respect of any note, loan
agreement or credit agreement relating to any Indebtedness having an aggregate
principal amount in excess of $50,000, and such default continues for more than
the period of grace, if any, specified therein or any Indebtedness having an
aggregate principal amount in excess of $50,000, shall become due before its
stated maturity by acceleration of the maturity, or any indebtedness having an
aggregate principal amount in excess of $50,000, shall become due by its terms
and shall not be promptly paid or extended;
(e) Any of the Loan Documents shall cease to be legal, valid and binding
agreements enforceable against Borrower in accordance with the respective terms,
or shall in any way be terminated or become or be declared by any court or by
Borrower or any Subsidiary in any legal proceeding to be ineffective or
inoperative, or shall in any way whatsoever cease to give or provide the
respective rights, titles, interests, remedies, powers or privileges stated
therein to be created thereby;
(f) Borrower or its Subsidiaries shall (i) apply for or consent to the
appointment of a receiver, trustee, custodian, intervenor or liquidator of
itself, or of all or substantially all of such Person's assets, (ii) file a
voluntary petition in bankruptcy, admit in writing that such Person is unable to
pay such Person's debts as they become due or generally not pay such Person's
debts as they become due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or answer seeking reorganization or an
arrangement with creditors or to take advantage of any bankruptcy or insolvency
laws, (v) file an answer admitting the
--------------------------------------------------------------------------------
32
Agreement (Continued)
--------------------------------------------------------------------------------
material allegations of, or consent to, or default in answering, a petition
filed against such Person in any bankruptcy, reorganization or insolvency
proceeding, or (vi) take corporate action for the purpose of effecting any of
the foregoing;
(g) An involuntary petition or complaint shall be filed against Borrower or
any of its Subsidiaries seeking bankruptcy or reorganization of such Person or
the appointment of a receiver, custodian, trustee, intervenor or liquidator of
such Person, or all or substantially all of such Person's assets, and such
petition or complaint shall not have been dismissed within sixty (60) days of
the filing thereof or an order, order for relief, judgment or decree shall be
entered by any court of competent jurisdiction or other competent authority
approving a petition or complaint seeking reorganization of Borrower or its
subsidiary or appointing a receiver, custodian, trustee, intervenor or
liquidator of such Person, or of all or substantially all of such Person's
assets;
(h) Any final judgment(s) for the payment of money in excess of the sum of
$100,000 in the aggregate shall be rendered against Borrower or any Subsidiary
and such judgment or judgments shall not be satisfied or discharged prior to the
date on which any of its assets could be lawfully sold to satisfy such judgment;
or
(i) Borrower shall fail to issue and deliver shares of Common Stock as
provided herein upon conversion of the Debentures.
SECTION 8.02. REMEDIES UPON EVENT OF DEFAULT.
---------------------------------------------
(a) If an Event of Default shall have occurred and be continuing, then the
Lenders may exercise any one or more of the following rights and remedies, and
any other remedies provided in any of the Loan Documents, as the Lenders in
their sole discretion may deem necessary or appropriate:
(i) declare the unpaid Principal Amount (after application of any
payments or installments received by the Lenders) of, and all interest then
accrued but unpaid on, the Debentures and any other liabilities hereunder to be
forthwith due and payable, whereupon the same shall forthwith become due and
payable without presentment, demand, protest, notice of default, notice of
acceleration or of intention to accelerate or other notice of any kind, all of
which Borrower hereby expressly waives, anything contained herein or in the
Debentures to the contrary notwithstanding;
(ii) reduce any claim to judgment; and
(iii) without notice of default or demand, pursue and enforce any of
the Lenders' rights and remedies under the Loan Documents and the Subsidiary
Documents, or otherwise provided under or pursuant to any applicable law or
agreement, all of which rights may be specifically enforced.
(b) In the event of a violation by Borrower of the negative covenants set
forth in Article VI, the Lenders may, in their sole discretion, (i) waive
compliance with the covenants, provided Borrower is in compliance with Section
7.01 hereof; or (ii) require Borrower to redeem the Debentures at the higher of
--------------------------------------------------------------------------------
33
Agreement (Continued)
--------------------------------------------------------------------------------
market value or the unpaid principal amount of the Debentures, together with an
amount equal to an 15% annual yield on the principal amount through the
Redemption Date, whichever is greater.
SECTION 8.03. PERFORMANCE BY THE LENDERS.
-----------------------------------------
Should Borrower or any Subsidiary fail to perform any covenant, duty or
agreement contained herein or in any of the other Loan Documents or in any
Subsidiary Document, any Lender or Agent may perform or attempt to perform such
covenant, duty or agreement on behalf of Borrower. In such event, Borrower
shall, at the request of any Lender or Agent, promptly pay any amount reasonably
expended by any Lender or Agent in such performance or attempted performance to
any Lender or Agent at its principal office, together with interest thereon, at
the interest rate specified in the Debenture, from the date of such expenditure
until paid. Notwithstanding the foregoing, it is expressly understood that any
Lender or Agent assumes no liability or responsibility for the performance of
any duties of Borrower or any Subsidiary hereunder or under any of the other
Loan Documents or under any Subsidiary Document.
SECTION 8.04. PAYMENT OF EXPENSES INCURRED BY THE LENDERS.
----------------------------------------------------------
Upon the occurrence of a Default or an Event of Default, which occurrence
is not cured within the notice provisions, if any, provided herein, Borrower
agrees to pay and shall pay all costs and expenses (including reasonable
attorneys" fees and expenses) incurred by any Lender or Agent in connection with
the preservation and enforcement of the Lenders" rights under this Agreement,
the Debentures or any other Loan Document.
ARTICLE IX - REGISTRATION RIGHTS
--------------------------------
SECTION 9.01. DEMAND REGISTRATION.
-----------------------------------
(a) Borrower hereby agrees to use its best efforts to register all or any
portion of the Registrable Securities on two occasions (but no more than one per
year) within 18 months after Loan Closing, if, and only if, it shall receive a
written request from a Holder (the Initiating Holder) that Borrower file a
registration statement under the 1933 Act covering the registration of at least
25% of the Registrable Securities Then Outstanding. Borrower shall, within 20
days of its receipt thereof, give written notice of such request to all Holders
of record of Registrable Securities. The Holders of said Registrable Securities
shall then have 15 days from the date of mailing of such notice by Borrower to
request that all or a portion of their respective Registrable Securities be
included in said registration.
(b) If the Holders intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise Borrower as a
part of their request made pursuant to this Agreement, and Borrower shall
include such information in the written notice to the other Holders of
Registrable Securities referred to in Section 9.01(a). In such event, the right
of any Holder to include its Registrable Securities in such registration shall
be conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by Borrower, the underwriter, the Initiating Holder
and such Holder) is limited to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
--------------------------------------------------------------------------------
34
Agreement (Continued)
--------------------------------------------------------------------------------
(together with Borrower as provided in Section 9.04(e)) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by mutual agreement of Borrower and the
Initiating Holder, which agreement shall not be unreasonably withheld.
Notwithstanding any other provision of this Section 9.01, if the underwriter
advises the Initiating Holder and Borrower in writing that marketing factors
require a limitation of the number of shares to be underwritten, then the
Initiating Holder shall so advise all Holders of Registrable Securities which
would otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated on a pro rata basis among all Holders that have requested to
participate in such registration. The rights of the Holders shall be senior to
those of any Persons subsequently granted demand registration rights.
(c) Each such registration shall remain effective for a period of 180 days,
unless the Initiating Holder otherwise determines. Notwithstanding the
foregoing, if the Holders' elect not to sell all or any portion of the
Registrable Securities pursuant to a demand registration which has become
effective, such demand registration right shall nonetheless be deemed satisfied.
(d) Notwithstanding the foregoing, Borrower may delay filing a registration
statement, and may withhold efforts to cause the registration statement to
become effective, for a period of not more than ninety (90) days if Borrower
determines in good faith that such registration might interfere with or affect
the negotiation or completion of any transaction involving Borrower. If, after
a registration statement becomes effective, Borrower advises the Holders that
the registration statement is required to be amended under applicable federal
securities laws, the Holders shall suspend any further sales of their
Registrable Securities, until the Company advises them that the registration
statements has been amended, but not more than thirty (30) days. The 180-day
time period referred to in subsection (c) during which the registration
statement must be kept current after its effective date shall be extended for an
additional number of business days equal to the number of business days during
which the right to sell the Registrable Securities was suspended pursuant to the
preceding sentence.
(e) Borrower shall have the right to exclude an underwriter not reasonably
acceptable to it.
(f) No demand for registration may be made for a ninety (90)-day period
following completion of another underwritten offering of Borrower's equity
securities.
SECTION 9.02. "PIGGY-BACK" REGISTRATION.
-----------------------------------------
If Borrower proposes to register any of its capital stock under the 1933
Act in connection with the public offering of such securities for its own
account or for the account of its security holders, other than Holders of
Registrable Securities pursuant hereto (a "Piggy-Back Registration Statement"),
except for (i) a registration relating solely to the sale of securities to
participants in Borrower's stock plans or employee benefit plans or (ii) a
registration relating solely to an transaction for which Form S-4 may be used,
then:
(a) Borrower shall give written notice of such determination to each Holder
of Registrable Securities, and each such Holder shall have the right to request,
by written notice given to Borrower within 15 days of the date that such written
notice was mailed by Borrower to such Holder, that a specific number
--------------------------------------------------------------------------------
35
Agreement (Continued)
--------------------------------------------------------------------------------
of Registrable Securities held by such Holder be included in the Piggy-Back
Registration Statement (and related underwritten offering, if any);
(b) If the Piggy-Back Registration Statement relates to an underwritten
offering, the notice given to each Holder shall specify the name or names of the
managing underwriter or underwriters for such offering. In addition, such notice
shall also specify the number of securities to be registered for the account of
Borrower and for the account of its shareholders (other than the Holders of
Registrable Securities), if any;
(c) If the Piggy-Back Registration Statement relates to an underwritten
offering, each Holder of Registrable Securities to be included therein must
agree (i) to sell such Holder's Registrable Securities on the same basis as
provided in the underwriting arrangement approved by Borrower, and (ii) to
timely complete and execute all questionnaires, powers of attorney, indemnities,
hold-back agreements, underwriting agreements and other documents required under
the terms of such underwriting arrangements or by the SEC or by any state
securities regulatory body;
(d) If the managing underwriter or underwriters for the underwritten
offering under the Piggy-Back Registration Statement determines that inclusion
of all or any portion of the Registrable Securities in such offering would
materially adversely affect the ability of the underwriters for such offering to
sell all of the securities requested to be included for sale in such offering at
the best price obtainable therefor, the aggregate number of Registrable
Securities that may be sold by the Holders shall be limited to such number of
Registrable Securities, if any, that the managing underwriter or underwriters
determine may be included therein without such adverse effect as provided below.
If the number of securities proposed to be sold in such underwritten offering
exceeds the number of securities that may be sold in such offering, there shall
be included in the offering, first, up to the maximum number of securities to be
sold by Borrower for its own account and for the account of other stockholders
(other than Holders of Registrable Securities), as they may agree among
themselves, and second, as to the balance, if any, Registrable Securities
requested to be included therein by the Holders thereof (pro rata as between
such Holders based upon the number of Registrable Securities initially proposed
to be registered by each), or in such other proportions as the managing
underwriter or underwriters for the offering may require; provided, however,
that in the event that the number of securities proposed to be sold in such
underwritten offering exceeds the number of securities that may be sold in such
offering pursuant to the terms and conditions set forth above and the Piggy-Back
Registration Statement is a result of public offering by Borrower of its
securities for its own account, there shall be included in the offering, first,
up to the maximum number of securities to be sold by Borrower for its own
account and second, as to the balance, if any, securities to be sold for the
account of Borrower's stockholders (both the Holders of Registrable Securities
requested and such other stockholders of Borrower requested to be included
therein) on a pro rata basis;
(e) Holders of Registrable Securities shall have the right to withdraw
their Registrable Securities from the Piggy-Back Registration Statement, but if
the same relates to an underwritten offering, they may only do so during the
time period and on the terms agreed upon among the underwriters for such
underwritten offering and the Holders of Registrable Securities;
(f) The exercise of the registration rights of the Holders with respect to
any specific underwritten offering shall be subject to a 90-day delay at the
request of the managing underwriter;
--------------------------------------------------------------------------------
36
Agreement (Continued)
--------------------------------------------------------------------------------
(g) The Holders will advise Borrower at the time a registration becomes
effective whether the Registrable Securities included in the registration will
be underwritten or sold directly by the Holders;
(h) If an underwriter requests a reasonable lock-up period of Borrower
and/or all sellers of Borrower's registered securities, the Holders will agree
to such lock-up, provided that this provision shall be limited to persons or
groups that hold ten percent (10%) or more of the Registrable Securities Then
Outstanding; and
(i) All demand and piggy-back registration rights of the Holders shall
terminate when all of the Registrable Securities Then Outstanding may be sold
pursuant to Rule 144(k).
SECTION 9.03. SHELF REGISTRATION.
----------------------------------
Borrower shall file a "shelf" registration statement under the 1933 Act
(the "Shelf Registration") covering all of the Registrable Securities within 360
days of the date of the Debentures, and Borrower shall use its best efforts to
cause the Shelf Registration to be declared effective and to keep the Shelf
Registration continuously effective until all of the Registrable Securities
registered therein cease to be Registrable Securities. The securities shall
cease to be Registrable Securities (a) when the Shelf Registration shall have
become effective under the 1933 Act and such securities shall have been disposed
of pursuant to the Shelf Registration, or (b) such securities shall have been
sold as permitted by Rule 144 under the 1933 Act or the date on which the
Registrable Securities may be sold pursuant to Rule 144(k), whichever is the
first to occur. The holders of the Debentures shall utilize Rule 144 in their
sole discretion to the extent it meets their distribution requirements.
Borrower agrees, if necessary, to supplement or amend the Shelf Registration, as
required by the registration form utilized by Borrower or by the instructions
applicable to such registration form or by the 1933 Act, and Borrower agrees to
furnish to the holders of the Registrable Securities copies of any such
supplement or amendment prior to its being used.
SECTION 9.04. OBLIGATIONS OF BORROWER.
---------------------------------------
Whenever required to effect the registration of any Registrable Securities
pursuant to this Agreement, Borrower shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use all reasonable efforts to cause such
registration statement to become effective, and keep such registration statement
effective until the sooner of all such Registrable Securities having been
distributed, or until 120 days have elapsed since such registration statement
became effective (subject to extension of this period as provided below);
(b) Prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
1933 Act with respect to the disposition of all securities covered by such
registration statement, or 120 days have elapsed since such registration
statement became effective (subject to the extension of this period as provided
below);
--------------------------------------------------------------------------------
37
Agreement (Continued)
--------------------------------------------------------------------------------
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
1933 Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them;
(d) Use all reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that Borrower shall not be required in connection therewith or as a
condition thereto to qualify as a broker-dealer in any states or jurisdictions
or to do business or to file a general consent to service of process in any such
states or jurisdictions;
(e) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement with the managing
underwriter of such offering, in usual and customary form reasonably
satisfactory to Borrower and the Holders of a majority of the Registrable
Securities to be included in such offering. Each Holder participating in such
underwriting shall also enter into and perform its obligations under such an
agreement;
(f) Notify each Holder of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto and
covered by such registration statement is required to be delivered under the
1933 Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing; and
(g) In the event of the notification provided for in Section 9.04(f) above,
Borrower shall use its best efforts to prepare and file with the SEC (and to
provide copies thereof to the Holders) as soon as reasonably possible an amended
prospectus complying with the 1933 Act, and the period during which the
prospectus referred to in the notice provided for in Section 9.04(f) above
cannot be used and the time period prior to the use of the amended prospectus
referred to in this Section 9.04(g) shall not be counted in the 120 day period
of this Section 9.04.
SECTION 9.05. FURNISH INFORMATION.
-----------------------------------
(a) It shall be a condition precedent to the obligations of Borrower to
take any action pursuant to this Article IX that the selling Holders shall
furnish to Borrower any and all information reasonably requested by Borrower,
its officers, directors, employees, counsel, agents or representatives, the
underwriter or underwriters, if any, and the SEC or any other Governmental
Authority, including, but not limited to: (i) such information regarding
themselves, the Registrable Securities held by them, and the intended method of
disposition of such securities, as shall be required to effect the registration
of their Registrable Securities; and (ii) the identity of and compensation to be
paid to any proposed underwriter or broker-dealer to be employed in connection
therewith.
(b) In connection with the preparation and filing of each registration
statement registering Registrable Securities under the 1933 Act, Borrower shall
give the Holders of Registrable Securities on whose behalf such Registrable
Securities are to be registered and their underwriters, if any, and their
--------------------------------------------------------------------------------
38
Agreement (Continued)
--------------------------------------------------------------------------------
respective counsel and accountants, at such Holders' sole cost and expense
(except as otherwise set forth herein), such access to copies of Borrower's
records and documents and such opportunities to discuss the business of Borrower
with its officers and the independent public accountants who have certified its
financial statements as shall be reasonably necessary in the opinion of such
Holders and such underwriters or their respective counsel, to conduct a
reasonable investigation within the meaning of the 1933 Act.
SECTION 9.06. EXPENSES OF REGISTRATION.
----------------------------------------
All expenses, other than underwriting discounts and commissions applicable
to the Registrable Securities sold by selling Holders, incurred in connection
with the registration of the Registrable Securities pursuant to this Article,
including, without limitation, all registration, filing and qualification fees,
printer's expenses, and accounting and legal fees and expenses of Borrower,
shall be borne by Borrower; provided, however, selling Holders shall be
responsible for all costs of their due diligence and legal counsel and other
advisors in connection with a registration of Registrable Securities.
SECTION 9.07. INDEMNIFICATION REGARDING REGISTRATION RIGHTS.
-------------------------------------------------------------
If any Registrable Securities are included in a registration statement
under this Article:
(a) To the extent permitted by law, Borrower will indemnify and hold
harmless each Holder, the officers and directors of each Holder, any underwriter
(as defined in the ▇▇▇▇ ▇▇▇) for such Holder and each person, if any, who
controls such Holder or underwriter within the meaning of the 1933 Act or the
1934 Act, against any losses, claims, damages, liabilities (joint or several) or
any legal or other costs and expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action to which they may become subject under the 1933 Act, the 1934 Act or
state law, insofar as such losses, claims, damages, costs, expenses or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (each a "Violation"): (i)
any untrue statement or alleged untrue statement of a material fact with respect
to Borrower or its securities contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements therein; (ii) the omission or alleged omission to
state therein a material fact with respect to Borrower or its securities
required to be stated therein or necessary to make the statements therein not
misleading; or (iii) any violation or alleged violation by Borrower of the 1933
Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities law.
Notwithstanding the foregoing, the indemnity agreement contained in this Section
9.07(a) shall not apply and Borrower shall not be liable (i) in any such case
for any such loss, claim, damage, costs, expenses, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by any such Holder, underwriter or
controlling person, or (ii) for amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
prior written consent of Borrower, which consent shall not be unreasonably
withheld.
(b) To the extent permitted by law, each Holder who participates in a
registration pursuant to the terms and conditions of this Agreement shall
indemnify and hold harmless Borrower, each of its directors and officers who
have signed the registration statement, each Person, if any, who controls
Borrower within
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39
Agreement (Continued)
--------------------------------------------------------------------------------
the meaning of the 1933 Act, the 1934 Act, any state securities law or any rule
or regulation promulgated under the 1933 Act, the 1934 Act or any state
securities law, each of Borrower's employees, agents, counsel and
representatives, any underwriter and any other Holder selling securities in such
registration statement, or any of its directors or officers, or any person who
controls such Holder, against any losses, claims, damages, costs, expenses,
liabilities (joint or several) to which Borrower or any such director, officer,
controlling person, employee, agent, representative, underwriter, or other such
Holder, or director, officer or controlling person thereof, may become subject,
under the 1933 Act, the 1934 Act or other federal or state law, only insofar as
such losses, claims, damages, costs, expenses or liabilities or actions in
respect thereto arise out of or are based upon any Violation, in each case to
the extent and only to the extent that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such. Each such Holder will indemnify any legal or
other expenses reasonably incurred by Borrower or any such director, officer,
employee, agent representative, controlling person, underwriter or other Holder,
or officer, director or of any controlling person thereof, in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section
9.07(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, costs, expenses, liability or action if such settlement is effected
without the prior written consent of the Holder, which consent shall not be
unreasonably withheld.
(c) Promptly after receipt by an indemnified party under this Section 9.07
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 9.07, deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
provided, however, that an indemnified party shall have the right to retain its
own counsel, with the reasonable fees and expenses of such counsel to be paid by
the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential conflict of interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve the indemnifying party of its
obligations under this Section 9.07, except to the extent that the failure
results in a failure of actual notice to the indemnifying party and such
indemnifying party is materially prejudiced in its ability to defend such action
solely as a result of the failure to give such notice.
(d) If the indemnification provided for in this Section 9.07 is unavailable
to an indemnified party under this Section in respect of any losses, claims,
damages, costs, expenses, liabilities or actions referred to herein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, costs, expenses, liabilities or actions in such
proportion as is appropriate to reflect the relative fault of Borrower, on the
one hand and of the Holder, on the other, in connection with the Violation that
resulted in such losses, claims, damages, costs, expenses, liabilities or
actions. The relative fault of Borrower, on the one hand, and of the Holder, on
the other, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of the material fact or the omission to state
a material fact relates to information supplied by Borrower or by the Holder,
and the parties" relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
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40
Agreement (Continued)
--------------------------------------------------------------------------------
(e) Borrower, on the one hand, and the Holders, on the other, agree that it
would not be just and equitable if contribution pursuant to this Section 9.07
were determined by a pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of losses, claims, damages, costs, expenses, liabilities and
actions referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any reasonable legal or
other expenses incurred by such indemnified party in connection with defending
any such action or claim. Notwithstanding the provisions of this Section 9.07,
neither Borrower nor the Holders shall be required to contribute any amount in
excess of the amount by which the total price at which the securities were
offered to the public exceeds the amount of any damages which Borrower or each
such Holder has otherwise been required to pay by reason of such Violation. No
person guilty of fraudulent misrepresentations (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation.
SECTION 9.08. REPORTS UNDER THE 1934 ACT.
------------------------------------------
So long as Borrower has a class of securities registered pursuant to
Section 12 of the 1934 Act, with a view to making available to the Holders the
benefits of Rule 144 promulgated under the 1933 Act ("Rule 144") and any other
rule or regulation of the SEC that may at any time permit a Holder to sell
securities of Borrower to the public without registration or pursuant to a
registration on Form S-3, if applicable, Borrower agrees to use its reasonable
efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144, at all times;
(b) File with the SEC in a timely manner all reports and other documents
required of Borrower under the 1933 Act and the 1934 Act;
(c) Use its best efforts to include all Common Stock covered by such
registration statement on NASDAQ if the Common Stock is then quoted on NASDAQ;
or list all Common Stock covered by such registration statement on such
securities exchange on which any of the Common Stock is then listed; or, if the
Common Stock is not then quoted on NASDAQ or listed on any national securities
exchange, use its best efforts to have such Common Stock covered by such
registration statement quoted on NASDAQ or, at the option of Borrower, listed on
a national securities exchange; and
(d) Furnish to any Holder, so long as the Holder owns any Registrable
Securities, (i) forthwith upon request a copy of the most recent annual or
quarterly report of Borrower and such other SEC reports and documents so filed
by Borrower, and (ii) such other information (but not any opinion of counsel) as
may be reasonably requested by any Holder seeking to avail himself of any rule
or regulation of the SEC which permits the selling of any such securities
without registration or pursuant to such form.
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41
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 9.09. ASSIGNMENT OF REGISTRATION RIGHTS.
-------------------------------------------------
Subject to the terms and conditions of this Agreement, and the Debentures,
the right to cause Borrower to register Registrable Securities pursuant to this
Agreement may be assigned by Holder to any transferee or assignee of such
securities; provided that said transferee or assignee is a transferee or
assignee of at least ten percent (10%) of the Registrable Securities and
provided that Borrower is, within a reasonable time after such transfer,
furnished with written notice of the name and address of such transferee or
assignee and the securities with respect to which such registration rights are
being assigned; and provided, further, that such assignment shall be effective
only if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the 1933 Act; it
being the intention that so long as Holder holds any Registrable Securities
hereunder, either Holder or its transferee or assignee of at least ten percent
may exercise the demand right to registration and piggy-back registration rights
hereunder. Other than as set forth above, the parties hereto hereby agree that
the registration rights hereunder shall not be transferable or assigned and any
contemplated transfer or assignment in contravention of this Agreement shall be
deemed null and void and of no effect whatsoever.
SECTION 9.10. OTHER MATTERS.
-----------------------------
(a) Each Holder of Registrable Securities hereby agrees by acquisition of
such Registrable Securities that, with respect to each offering of the
Registrable Securities, whether each Holder is offering such Registrable
Securities in an underwritten or nonunderwritten offering, such Holder will
comply with Regulation M or such other or additional anti-manipulation rules
then in effect until such offering has been completed, and in respect of any
nonunderwritten offering, in writing will inform Borrower, any other Holders who
are selling shareholders, and any national securities exchange upon which the
securities of Borrower are listed, that the Registrable Securities have been
sold and will, upon Borrower's request, furnish the distribution list of the
Registrable Securities. In addition, upon the request of Borrower, each Holder
will supply Borrower with such documents and information as Borrower may
reasonably request with respect to the subject matter set forth and described in
this Section 9.10.
(b) Each Holder of Registrable Securities hereby agrees by acquisition of
such Registrable Securities that, upon receipt of any notice from Borrower of
the happening of any event which makes any statement made in the registration
statement, the prospectus or any document incorporated therein by reference,
untrue in any material respect or which requires the making of any changes in
the registration statement, the prospectus or any document incorporated therein
by reference, in order to make the statements therein not misleading in any
material respect, such Holder will forthwith discontinue disposition of
Registrable Securities under the prospectus related to the applicable
registration statement until such Holder's receipt of the copies of the
supplemented or amended prospectus, or until it is advised in writing by
Borrower that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings which are incorporated by reference in
the prospectus.
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42
Agreement (Continued)
--------------------------------------------------------------------------------
ARTICLE X - BOARD OF DIRECTORS
------------------------------
SECTION 10.01. BOARD REPRESENTATION OR ATTENDANCE BY OBSERVER.
--------------------------------------------------------------
(a) Borrower herewith agrees that Agent shall have the right from time to
time to designate a nominee to serve as a member of the Board of Directors of
Borrower. In the event of a monetary Default under Section 8.01 hereof, the
Agent shall have the right to designate one (1) additional nominee to serve as a
member of the Board of Directors of Borrower. Borrower will nominate and use
its best efforts to secure the election of such designee(s) as Director(s) of
Borrower. During such time as Agent has not exercised such rights, the Agent
shall have the right to designate an observer, who shall be entitled to attend
and participate (but not vote) in all meetings of the Board of Directors and to
receive all notices, information, correspondence and communications sent by
Borrower to members of the Board of Directors. All costs and expenses incurred
in connection therewith by any such designated Director or observer, or by Agent
on behalf of such Director of observer, shall be reimbursed by Borrower.
(b) Any such Director or observer shall, if requested to do so, absent
himself or herself from the meeting in the event of, and so long as, the
Directors are considering and acting on matters pertaining to any rights or
obligations of Borrower or the Lender under this Agreement, the Debentures, the
other Loan Documents or the Subsidiary Documents.
SECTION 10.02. LIMITATION OF AUTHORITY OF PERSONS DESIGNATED AS A DIRECTOR
--------------------------------------------------------------------------
NOMINEE.
--------
It is provided and agreed that the actions and advice of any person while
serving pursuant to Section 10.01 as a Director or an observer at meetings of
the Board of Directors shall be construed to be the actions and advice of that
person alone and not be construed as actions of the Lender as to any notice of
requirements or rights of Lender under this Agreement, the Debentures, the other
Loan Documents or the Subsidiary Documents nor as actions of the Lender to
approve modifications, consents, amendments or waivers thereof; and all such
actions or notices shall be deemed actions or notices of the Lender only when
duly provided in writing and given in accordance with the provisions of this
Agreement.
SECTION 10.03. NONLIABILITY OF THE LENDERS.
-------------------------------------------
The relationship between Borrower and the Lenders is, and shall at all
times remain, solely that of borrower and lender. The Lenders neither undertake
nor assume any responsibility or duty to Borrower to review, inspect, supervise,
pass judgment upon, or inform Borrower of any matter in connection with any
phase of Borrower's business, operations, or condition, financial or otherwise.
Borrower shall rely entirely upon its own judgment with respect to such matters,
and any review, inspection, supervision, exercise of judgment, or information
supplied to Borrower by the Lenders, or any representative or agent of the
Lenders, in connection with any such matter is for the protection of the
Lenders, and neither Borrower nor any third party is entitled to rely thereon.
--------------------------------------------------------------------------------
43
Agreement (Continued)
--------------------------------------------------------------------------------
ARTICLE XI - AGENCY AND INTER-LENDER PROVISIONS
-----------------------------------------------
SECTION 11.01. THE LENDERS' REPRESENTATIONS AND WARRANTIES TO OTHER LENDERS.
----------------------------------------------------------------------------
Each Lender represents and warrants to the other Lenders and the Agent:
(a) It is legal for it to make its portion of the Loan, and the making of
such portion of the Loan complies with laws applicable to it;
(b) It has made, without reliance upon any other Lenders, its own
independent review (including any desired investigations and inspections) of,
and it accepts and approves, the Loan, this Agreement and the associated
documents and all other matters and information which it deems pertinent. It
acknowledges that the Loan Documents and the Subsidiary Documents are a complete
statement of all understandings and respective rights and obligations between
and among the Lenders, Subsidiaries and Borrowers regarding the Loan;
(c) None of the Lenders have made any express or implied representation or
warranty to any other Lender with respect to this transaction;
(d) It will, independently and without reliance upon any other Lender, and
based upon such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and will make such
investigation as it deems necessary to inform itself as to the Loan, the Loan
Documents, the Subsidiary Documents, Borrower and any collateral; provided,
however, nothing contained in this Section shall limit Agent's obligation to
provide the other Lenders with the information and documents Agent is expressly
required to deliver under this Agreement;
(e) The relationship of each Lender is, and shall at all times remain,
solely that of each Lender of its respective Loan. The Lenders are not partners
or joint venturers in connection with the Loan; and
(f) The Loan Documents executed by the Lenders are valid and binding
obligations of the Lenders.
SECTION 11.02. WAIVER OF LOAN PROVISIONS OR INTEREST OR PRINCIPAL PAYMENTS.
---------------------------------------------------------------------------
A waiver of an interest or principal payment, a declaration of a Default or
any amendment, modification or waiver of this Agreement or the Debentures will
require the consent of the Lenders.
SECTION 11.03. AGENCY.
----------------------
(a) Each of the Lenders hereby designates and appoints Renaissance Group as
its Agent under this Agreement and authorizes the Agent to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and the Subsidiary Documents and to exercise such powers as are set forth herein
or therein, together with such other powers as are reasonable incidental
thereto. In
--------------------------------------------------------------------------------
44
Agreement (Continued)
--------------------------------------------------------------------------------
performing its functions and duties under this Agreement, the Agent shall act
solely as agent of the Lenders and does not assume and shall not be deemed to
have assumed any obligation toward or relationship of agency or trust with or
for Borrower. The Agent may perform any of its duties under this Agreement, or
under the other Loan Documents or the Subsidiary Documents, by or through its
agents or employees.
(b) The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement, in the other Loan Documents or in the
Subsidiary Documents. Except as expressly provided herein, the duties of the
Agent shall be mechanical and administrative in nature. The Agent shall have
and may use its sole discretion with respect to exercising or refraining from
taking any actions which the Agent is expressly entitled to take or assert under
this Agreement, the other Loan Documents and the Subsidiary Documents. The
Agent shall not have by reason of this Agreement a fiduciary relationship with
respect to the Lenders. Nothing in this Agreement, any of the other Loan
Documents or any of the Subsidiary Documents, express or implied, is intended to
or shall be construed to impose upon the Agent any obligations in respect of
this Agreement, any of the other Loan Documents or any of the Subsidiary
Documents except as expressly set forth herein or therein. If the Agent seeks
the consent or approval of the Lenders to the taking or refraining from taking
any action hereunder, the Agent shall send notice thereof to the Lenders. The
Agent may employ agents, co-agents and attorneys-in-fact and shall not be
responsible to the Lenders or Borrower, except as to money or securities
received by it or its authorized agents, for the negligence or misconduct of any
such agents or attorneys-in-fact selected by it with reasonable care.
(c) Neither the Agent nor any of its officers, directors, employees or
agents shall be liable to the Lenders for any action taken or omitted by it or
any of them under this Agreement, any of the other Loan Documents or any of the
Subsidiary Documents, or in connection herewith or therewith, except that no
Person shall be relieved of any liability imposed by law, intentional tort or
gross negligence. The Agent shall not be not be responsible to the Lenders for
any recitals, statements, representations or warranties contained in this
Agreement or for the execution, effectiveness, genuineness, validity,
enforceability, collectability, or sufficiency of this Agreement, any of the
other Loan Documents or any of the Subsidiary Documents or any of the
transactions contemplated thereby, or for the financial condition of any of
Borrowers. The Agent shall not be required to make any inquiry concerning
either the performance or observance of any of the terms, provisions or
conditions of this Agreement, any of the other Loan Documents or any of the
Subsidiary Documents or the financial condition of Borrower, or the existence or
possible existence of any Default or Event of Default. Agent shall give the
Lenders notice of any Default or Event of Default of which Agent has actual
notice. The Agent may at any time request instructions from the Lenders with
respect to any actions or approvals which by the terms of this Agreement, of any
of the other Loan Documents or of any of the Subsidiary Documents the Agent is
permitted or required to take or to grant, and if such instructions are promptly
requested, the Agent shall be absolutely entitled to refrain from taking any
action or to withhold any approval and shall not be under any liability
whatsoever to any Person for refraining from any action or withholding any
approval under any of the Loan Documents or any of the Subsidiary Documents
until it shall have received such instructions from the Lenders. Without
limiting the foregoing, the Lenders shall not have any right of action
whatsoever against the Agent as a result of the Agent acting or refraining from
acting under this Agreement, any of the other Loan Documents or any of the
Subsidiary Documents in accordance with the instructions of the Lenders.
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45
Agreement (Continued)
--------------------------------------------------------------------------------
(d) The Agent shall be entitled to rely upon any written notices,
statements, certificates, orders or other documents or any telephone message
believed by it in good faith to be genuine and correct and to have been signed,
sent or made by the proper Person, and with respect to all matters pertaining to
this Agreement, any of the other Loan Documents or any of the Subsidiary
Documents and its duties hereunder or thereunder, upon advice of counsel
selected by it.
(e) To the extent that the Agent is not reimbursed and indemnified by
Borrower, the Lenders will reimburse and indemnify the Agent for and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses, advances or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against the
Agent in any way relating to or arising out of this Agreement, any of the other
Loan Documents, or any of the Subsidiary Documents or any action taken or
omitted by the Agent under this Agreement, any of the other Loan Documents or
any of the Subsidiary Documents. The obligations of the Lenders under this
indemnification provision shall survive the payment in full of the Loans and the
termination of this Agreement.
ARTICLE XII - MISCELLANEOUS
SECTION 12.01. STRICT COMPLIANCE.
---------------------------------
Any waiver by the Lenders of any breach or any term or condition of this
Agreement, the other Loan Documents or the Subsidiary Documents shall not be
deemed a waiver of any other breach, nor shall any failure to enforce any
provision of this Agreement, the other Loan Documents or the Subsidiary
Documents operate as a waiver of such provision or of any other provision, nor
constitute nor be deemed a waiver or release of Borrower for anything arising
out of, connected with or based upon this Agreement, the other Loan Documents or
the Subsidiary Documents.
SECTION 12.02. WAIVERS AND MODIFICATIONS.
-----------------------------------------
All modifications, consents, amendments or waivers (herein "Waivers") of
any provision of this Agreement, the Debentures, any other Loan Documents or any
Subsidiary Documents, and any consent to departure therefrom, shall be effective
only if the same shall be in writing by the Lenders and then shall be effective
only in the specific instance and for the purpose for which given. No notice or
demand given in any case shall constitute a waiver of the right to take other
action in the same, similar or other instances without such notice or demand.
No failure to exercise, and no delay in exercising, on the part of Agent or any
Lender, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise any other right. The rights of any Lender hereunder,
under the other Loan Documents and under the Subsidiary Documents shall be in
addition to all other rights provided by law.
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46
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 12.03. LIMITATION ON LIABILITY.
---------------------------------------
The duties, warranties, covenants and promises arising from the Loan
Documents and the Subsidiary Documents of each Lender to Borrower shall be
several and not joint, and Borrower shall have no legal or equitable cause of
action against any Lender (or its successors or assigns) for any liability of
any other Lender (or its successors or assigns).
SECTION 12.04. CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS AND JURISDICTION.
-------------------------------------------------------------------------------
Any suit, action or proceeding against Borrower with respect to this
Agreement or the Debentures or any judgment entered by any court in respect
thereof, may be brought in the courts of the State of Texas, County of Dallas,
or in the United States federal courts located in the State of Texas, as each
Lender in its sole discretion may elect, and Borrower hereby submits to the
nonexclusive jurisdiction of such courts for the purpose of any such suit,
action or proceeding. Borrower hereby agrees that service of all writs, process
and summonses in any such suit, action or proceeding brought in the State of
Texas may be brought upon, and Borrower hereby irrevocably appoints, the CT
Corporation System, Dallas, Texas, as its true and lawful attorney-in-fact in
the name, place and stead of Borrower to accept such service of any and all such
writs, process and summonses. Borrower hereby irrevocably waives any objections
which it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any Debenture brought
in such courts, and hereby further irrevocably waives any claim that any such
suit, action or proceeding brought in any such court has been brought in any
inconvenient forum.
SECTION 12.05. ARBITRATION.
---------------------------
(a) Upon the demand of the Lenders or Borrower (collectively the
"parties"), made before the institution of any judicial proceeding or not more
than 60 days after service of a complaint, third party complaint, cross-claim or
counterclaim or any answer thereto or any amendment to any of the above, any
Dispute (as defined below) shall be resolved by binding arbitration in
accordance with the terms of this arbitration clause. A "Dispute" shall include
any action, dispute, claim, or controversy of any kind, whether founded in
contract, tort, statutory or common law, equity, or otherwise, now existing or
hereafter occurring between the parties arising out of, pertaining to or in
connection with this Agreement, any document evidencing, creating, governing, or
securing any indebtedness guaranteed pursuant to the terms hereof, or any
related agreements, documents, or instruments (the "Documents"). The parties
understand that by this Agreement they have decided that the Disputes may be
submitted to arbitration rather that being decided through litigation in court
before a judge or jury and that once decided by an arbitrator the claims
involved cannot later be brought, filed, or pursued in court. IF BORROWER SHALL
FAIL TO PAY (OR SHALL STATE IN WRITING AN INTENTION NOT TO PAY OR ITS INABILITY
TO PAY) NOT LATER THAN THREE (3) DAYS AFTER THE DUE DATE, ANY INSTALLMENT OF
INTEREST ON OR PRINCIPAL OF, ANY DEBENTURE OR ANY FEE, EXPENSE OR OTHER PAYMENT
REQUIRED HEREUNDER, THE LENDERS MAY, AT THEIR OPTION, ENFORCE THEIR RIGHTS
OUTSIDE THE ARBITRATION PROVISION FOUND IN THIS SECTION 12.05 OR ANY DEBENTURE.
(b) Arbitrations conducted pursuant to this Agreement, including
selection of arbitrators, shall be administered by the American Arbitration
Association ("Administrator") pursuant to the Commercial Arbitration Rules of
the Administrator. Arbitrations conducted pursuant to the terms hereof shall be
--------------------------------------------------------------------------------
47
Agreement (Continued)
--------------------------------------------------------------------------------
governed by the provisions of the Federal Arbitration Act (Title 9 of the United
States Code), and to the extent the foregoing are inapplicable, unenforceable or
invalid, the laws of the State of Texas. Judgment upon any award rendered
hereunder may be entered in any court having jurisdiction; provided, however,
that nothing contained herein shall be deemed to be a waiver by any party that
is a bank of the protections afforded to it under 12 U.S.C. 91 or similar
governing state law. Any party who fails to submit to binding arbitration
following a lawful demand by the opposing party shall bear all costs and
expenses, including reasonable attorneys" fees, incurred by the opposing party
in compelling arbitration of any Dispute.
(c) No provision of, nor the exercise of any rights under, this arbitration
clause shall limit the right of any party to (i) foreclose against any real or
personal property collateral or other security, (ii) exercise self-help remedies
(including repossession and set off rights) or (iii) obtain provisional or
ancillary remedies such as injunctive relief, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver from a court having
jurisdiction. Such rights can be exercised at any time except to the extent
such action is contrary to a final award or decision in any arbitration
proceeding. The institution and maintenance of an action as described above
shall not constitute a waiver of the right of any party, including the
plaintiff, to submit the Dispute to arbitration, nor render inapplicable the
compulsory arbitration provisions hereof. Any claim or Dispute related to
exercise of any self-help, auxiliary or other exercise of rights under this
section shall be a Dispute hereunder.
(d) Arbitrator(s) shall resolve all Disputes in accordance with the
applicable substantive law of the State of Texas. Arbitrator(s) may make an
award of attorneys" fees and expenses if permitted by law or the agreement of
the parties. All statutes of limitation applicable to any Dispute shall apply
to any proceeding in accordance with this arbitration clause. Any arbitrator
selected to act as the only arbitrator in a Dispute shall be required to be a
practicing attorney with not less than five (5) years practice in commercial law
in the State of Texas. With respect to a Dispute in which the claims or amounts
in controversy do not exceed five hundred thousand dollars ($500,000), a single
arbitrator shall be chosen and shall resolve the Dispute. In such case the
arbitrator shall have authority to render an award up to but not to exceed five
hundred thousand dollars ($500,000), including all damages of any kind
whatsoever, costs, fees and expenses. Submission to a single arbitrator shall
be a waiver of all parties" claims to recover more than five hundred thousand
dollars ($500,000). A Dispute involving claims or amounts in controversy
exceeding five hundred thousand dollars ($500,000) shall be decided by a
majority vote of a panel of three arbitrators ("Arbitration Panel"), one of whom
must possess the qualifications to sit as a single arbitrator in a Dispute
decided by one arbitrator. If the arbitration is consolidated with one
conducted pursuant to the terms of a guaranty of the Indebtedness, then the
Arbitration Panel shall be one which meets the criteria set forth between the
Lenders and Borrower. Arbitrator(s) may, in the exercise of their discretion,
at the written request of a party, (i) consolidate in a single proceeding any
multiple party claims that are substantially identical and all claims arising
out of a single loan or series of loans, including claims by or against
borrower(s), guarantors, sureties and/or owners of collateral if different from
Borrower, and (ii) administer multiple arbitration claims as class actions in
accordance with Rule 23 of the Federal Rules of Civil Procedure. The
arbitrator(s) shall be empowered to resolve any dispute regarding the terms of
this Agreement or any Dispute or any claim that all or any part (including this
provision) is void or voidable but shall have no power to change or alter the
terms of this Agreement. The award of the arbitrator(s) shall be in writing and
shall specify the factual and legal basis for the award.
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48
Agreement (Continued)
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(e) To the maximum extent practicable, the Administrator, the
arbitrator(s) and the parties shall take any action reasonably necessary to
require that an arbitration proceeding hereunder be concluded within 180 days of
the filing of the Dispute with the Administrator. The arbitrator(s) shall be
empowered to impose sanctions for any party's failure to proceed within the
times established herein. Arbitration proceedings hereunder shall be conducted
in Texas at a location determined by the Administrator. In any such proceeding a
party shall state as a counterclaim any claim which arises out of the
transaction or occurrence or is in any way related to the Loan Documents which
does not require the presence of a third party which could not be joined as a
party in the proceeding, The provisions of this arbitration clause shall survive
any termination, amendment, or expiration of the Loan Documents and repayment in
full of sums owed to the Lenders by Borrower unless the parties otherwise
expressly agree in writing. Each party agrees to keep all Disputes and
arbitration proceedings strictly confidential, except for disclosures of
information required in the ordinary course of business of the parties or as
required by applicable law or regulation.
SECTION 12.06. INVALID PROVISIONS.
----------------------------------
If any provision of any Loan Document is held to be illegal, invalid or
unenforceable under present or future laws during the term of this Agreement,
such provision shall be fully severable; such Loan Document shall be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of such Loan Document; and the remaining provisions of such
Loan Document shall remain in full force and effect and shall not be affected by
the illegal, invalid or unenforceable provision or by its severance from such
Loan Document. Furthermore, in lieu of each such illegal, invalid or
unenforceable provision shall be added as part of such Loan Document a provision
mutually agreeable to Borrower and the Lenders as similar in terms to such
illegal, invalid or unenforceable provision as may be possible and be legal,
valid and enforceable. In the event Borrower and the Lenders are unable to
agree upon a provision to be added to the Loan Document within a period of ten
(10) business days after a provision of the Loan Document is held to be illegal,
invalid or unenforceable, then a provision acceptable to independent
arbitrators, such to be selected in accordance with the provisions of the
American Arbitration Association, as similar in terms to the illegal, invalid or
unenforceable provision as is possible and be legal, valid and enforceable shall
be added automatically to such Loan Document. In either case, the effective
date of the added provision shall be the date upon which the prior provision was
held to be illegal, invalid or unenforceable.
SECTION 12.07. MAXIMUM INTEREST RATE.
-------------------------------------
(a) Regardless of any provision contained in any of the Loan Documents,
the Lenders shall never be entitled to receive, collect or apply as interest on
the Debentures any amount in excess of interest calculated at the Maximum Rate,
and, in the event that any Lender ever receives, collects or applies as interest
any such excess, the amount which would be excessive interest shall be deemed to
be a partial prepayment of principal and treated hereunder as such; and, if the
principal amount of the Obligation is paid in full, any remaining excess shall
forthwith be paid to Borrower. In determining whether or not the interest paid
or payable under any specific contingency exceeds interest calculated at the
Maximum Rate, Borrower and the Lenders shall, to the maximum extent permitted
under applicable law, (i) characterize any nonprincipal payment as an expense,
fee or premium rather than as interest, (ii) exclude voluntary prepayments and
the effects thereof, and (iii) amortize, pro rate, allocate and spread, in equal
parts, the total
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49
Agreement (Continued)
--------------------------------------------------------------------------------
amount of interest throughout the entire contemplated term of the Debentures;
provided that, if the Debentures are paid and performed in full prior to the end
of the full contemplated term thereof, and if the interest received for the
actual period of existence thereof exceeds interest calculated at the Maximum
Rate, the Lenders shall refund to Borrower the amount of such excess or credit
the amount of such excess against the principal amount of the Debentures and, in
such event, the Lenders shall not be subject to any penalties provided by any
laws for contracting for, charging, taking, reserving or receiving interest in
excess of interest calculated at the Maximum Rate.
(b) "Maximum Rate" shall mean, on any day, the highest nonusurious rate
of interest permitted by applicable law on such day that at any time, or from
time to time, may be contracted for, taken, reserved, charged or received on the
Indebtedness evidenced by the Debentures under the laws which are presently in
effect of the United States of America and the laws of any other jurisdiction
which are or may be applicable to the holders of the Debentures and such
Indebtedness or, to the extent permitted by law, under such applicable laws of
the United States of America and the laws of any other jurisdiction which are or
may be applicable to the holder of the Debentures and which may hereafter be in
effect and which allow a higher maximum nonusurious interest rate than
applicable laws now allow.
SECTION 12.08. PARTICIPATIONS AND ASSIGNMENTS OF THE DEBENTURES.
----------------------------------------------------------------
(a) The Lenders and the Agent shall have the right to enter into a
participation agreement with any other party or its Affiliates with respect to
the Debentures, or to sell all or any part of the Debentures, but any
participation or sale shall not affect the rights and duties of any such Lender
or the Agent hereunder vis-a-vis Borrower. In the event that all or any portion
of the Loan shall be, at any time, assigned, transferred or conveyed to other
parties, any action, consent or waiver (except for compromise or extension of
maturity), to be given or taken by any Lender or the Agent hereunder (herein
"Action"), shall be such action as taken by the holders of a majority in amount
of the Principal Amount of the Debentures then outstanding, as such holders are
recorded on the books of Borrower and represented by the Agent as described in
subsection (b) below.
(b) Assignment or sale of the Debentures shall be effective on the books
of Borrower only upon (i) endorsement of the Debenture, or part thereof, to the
proposed new holder, along with a current notation of the amount of payments or
installments received and net Principal Amount yet unfunded or unpaid, and
presentment of such Debenture to Borrower for issue of a replacement Debenture,
or Debentures, in the name of the new holder; and (ii) delivery of an opinion of
counsel, reasonably satisfactory to Borrower, that transfer shall not require
registration or qualification under applicable state or federal securities laws.
(c) The Debentures may be sold, transferred or assigned only to
Affiliates of the Lenders or permitted transferees in multiples of $100,000.
SECTION 12.09. CONFIDENTIALITY.
-------------------------------
(a) All financial reports or information that are furnished to the
Lenders or Holders, or their respective director designees or other
representatives, pursuant to this Agreement or pursuant to the Debentures, the
other Loan Documents or the Subsidiary Documents shall be treated as
confidential unless
--------------------------------------------------------------------------------
50
Agreement (Continued)
--------------------------------------------------------------------------------
and to the extent that such information has been otherwise disclosed by
Borrower, but nothing herein contained shall limit or impair the Lenders" or
Holders" right to disclose such reports to any appropriate Governmental
Authority, or to use such information to the extent pertinent to an evaluation
of the Obligation, or to enforce compliance with the terms and conditions of
this Agreement, or to take any lawful action which the Lenders or Holders deem
necessary to protect their respective interests under this Agreement.
(b) The Lenders and the Agent shall use their reasonable efforts to
protect and preserve the confidentiality of such information, except for such
disclosure as shall be required for compliance by the Lenders or their
respective director designees with SEC reporting requirements or any
administrative or judicial proceeding or otherwise as a matter of law. The
provisions of Section 5.01 notwithstanding, Borrower may refuse to provide
information as required pursuant thereto to an assignee or successor in interest
to the Lenders, unless and until such assignee or successor shall have executed
an agreement to maintain the confidentiality of the information as provided
herein.
SECTION 12.10. BINDING EFFECT.
------------------------------
The Loan Documents shall be binding upon and inure to the benefit of
Borrower and the Lenders and their respective successors, assigns and legal
representatives; provided, however, that Borrower may not, without the prior
written consent of the Lenders, assign any rights, powers, duties or obligations
thereunder.
SECTION 12.11. NO THIRD PARTY BENEFICIARY.
------------------------------------------
The parties do not intend the benefits of this Agreement to inure to any
third party, nor shall this Agreement be construed to make or render the Lenders
liable to any materialman, supplier, contractor, subcontractor, purchaser or
lessee of any property owned by Borrower, or for debts or claims accruing to any
such persons against Borrower. Notwithstanding anything contained herein, in
the Debentures, in any other Loan Document or in any Subsidiary Document, no
conduct by any or all of the parties hereto, before or after signing this
Agreement, any other Loan Document nor any Subsidiary Document, shall be
construed as creating any right, claim or cause of action against the Lenders,
or any of their respective officers, directors, agents or employees, in favor of
any materialman, supplier, contractor, subcontractor, purchaser or lessee of any
property owned by Borrower, nor to any other person or entity other than
Borrower.
SECTION 12.12. ENTIRETY.
------------------------
This Agreement and the Debentures, the other Loan Documents, the
Subsidiary Documents and any other documents or instruments issued or entered
into pursuant hereto and thereto contain the entire agreement between the
parties and supersede all prior agreements and understandings, written or oral
(if any), relating to the subject matter hereof and thereof.
SECTION 12.13. HEADINGS.
------------------------
Section headings are for convenience of reference only and, except as a
means of identification of reference, shall in no way affect the interpretation
of this Agreement.
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51
Agreement (Continued)
--------------------------------------------------------------------------------
SECTION 12.14. SURVIVAL.
------------------------
All representations and warranties made by Borrower herein shall survive
delivery of the Debentures and the making of the Loans.
SECTION 12.15. MULTIPLE COUNTERPARTS.
-------------------------------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
SECTION 12.16. KNOWLEDGE OF BORROWER.
-------------------------------------
As used herein or in any of the other Loan Documents, all references "to
Borrower's best knowledge" or "to the knowledge of Borrower" or words or phrases
of similar import (whether or not modified by any additional phrase) shall in
each case mean the knowledge of Borrower, the Subsidiaries or their respective
executive officers, directors and principal shareholders.
SECTION 12.17. NOTICES.
-----------------------
(a) Any notices or other communications required or permitted to be
given by this Agreement or any other documents and instruments referred to
herein must be (i) given in writing and personally delivered, mailed by prepaid
certified or registered mail or sent by overnight service, such as FedEx, or
(ii) made by telex or facsimile transmission delivered or transmitted to the
party to whom such notice or communication is directed, with confirmation
thereupon given in writing and personally delivered or mailed by prepaid
certified or registered mail.
(b) Any notice to be mailed, sent or personally delivered shall be
mailed or delivered to the principal offices of the party to whom such notice is
addressed, as that address is specified herein below. Any such notice or other
communication shall be deemed to have been given (whether actually received or
not) on the day it is mailed, postage prepaid, or sent by overnight service or
personally delivered or, if transmitted by telex or facsimile transmission, on
the day that such notice is transmitted; provided, however, that any notice by
telex or facsimile transmission, received by any Borrower or the Lenders after
4:00 p.m., Standard Time, at the recipient's address, on any day, shall be
deemed to have been given on the next succeeding business day. Any party may
change its address for purposes of this Agreement by giving notice of such
change to the other parties.
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52
Agreement (Continued)
--------------------------------------------------------------------------------
If to Borrower to:
La-Man Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
407/521-7477
407/▇▇▇-▇▇▇▇ (fax)
with a copy to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Broad and ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
407/839-4209
407/▇▇▇-▇▇▇▇ (fax)
If to the Lenders to:
Renaissance Capital Growth & Income Fund III, Inc.
Renaissance US Growth & Income Trust PLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
214/891-8294
214/▇▇▇-▇▇▇▇ (fax)
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
214/939-4906
214/▇▇▇-▇▇▇▇ (fax)
--------------------------------------------------------------------------------
53
Agreement (Continued)
--------------------------------------------------------------------------------
If to Agent to:
Renaissance Capital Group, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
214/891-8294
214/▇▇▇-▇▇▇▇ (fax)
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
214/939-4906
214/▇▇▇-▇▇▇▇ (fax)
Any notice delivered personally in the manner provided herein will be
deemed given to the party to whom it is directed upon the party's (or its
agent's) actual receipt. Any notice addressed and mailed in the manner provided
here will be deemed given to the party to whom it is addressed at the close of
business, local time of the recipient, on the fourth business day after the day
it is placed in the mail, or, if earlier, the time of actual receipt.
SECTION 12.18. GOVERNING LAW.
-----------------------------
THIS LOAN AGREEMENT HAS BEEN PREPARED, IS BEING EXECUTED AND DELIVERED,
AND IS INTENDED TO BE PERFORMED IN THE STATE OF TEXAS, AND THE SUBSTANTIVE LAWS
OF SUCH STATE AND THE APPLICABLE FEDERAL LAWS OF THE UNITED STATES OF AMERICA
SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS
LOAN AGREEMENT.
--------------------------------------------------------------------------------
54
Agreement (Continued)
--------------------------------------------------------------------------------
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
executed and delivered, as of the date and year first above written.
BORROWER:
LA-MAN CORPORATION
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
LENDERS:
RENAISSANCE CAPITAL GROWTH & INCOME
FUND III, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ____________________________________
Title: President
------------------------------------
RENAISSANCE US GROWTH & INCOME TRUST PLC
By: Renaissance Capital Group, Inc.
Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------
Name: _________________________
Title: President
-------------------------
AGENT:
RENAISSANCE CAPITAL GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ____________________________________
Title: President
------------------------------------
--------------------------------------------------------------------------------
55
SCHEDULES TO CONVERTIBLE LOAN AGREEMENT
Schedule 2.08 Schedule of Brokers/Finders
Schedule 4.03 Schedule of Conflicts or Consents
Schedule 4.05 Schedule of Permitted Liens
Schedule 4.06 Schedule of Any Material Adverse Change
Schedule 4.08 Schedule of Material Agreements
Schedule 4.09 Schedule of Litigation
Schedule 4.10 Schedule of Unpaid Taxes
Schedule 4.11 Schedule of Capitalization
Schedule 4.13 Schedule of Employee Matters
Schedule 4.14 Schedule of Employee Benefit Plans
Schedule 4.15 Schedule of Compliance with Laws Matters
Schedule 4.16 Schedule of Licenses and Permits
Schedule 4.17 Schedule of Contracts
Schedule 4.19 Schedule of Agreements between Borrower and any of its
officers, directors, and principal shareholders, including
employment agreements
Schedule 4.20 Schedule of Subsidiaries
Schedule 4.21 Schedule of Casualties
Schedule 4.25 Schedule of Insurance
Schedule 4.27 Schedule of Real Property
Schedule 4.28 Schedule of Environmental Matters
Schedule 6.01 Schedule of Limitation on Indebtedness
Schedule 6.05 Schedule of Transactions with Affiliates
Schedule 7.01 Schedule of Financial Ratios
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56