SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
----------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 6)
CPT Holdings, Inc.
(Name of Issuer)
Common Stock, par value $.05 per share
(Title of Class of Securities)
126-160407
(CUSIP Number)
William L. Remley, President
Trinity Investment Corporation
1430 Broadway
Suite 1300
New York, New York 10018
(212) 391-1392
with copy to
Gary R. Siegel, Esquire
Tucker, Flyer & Lewis
a professional corporation
1615 L Street, N.W.
Suite 400
Washington, D.C. 20036
(202) 452-8600
(Name, address and telephone number of person
authorized to receive notices and communications)
May 30, 1996
(Date of event which requires filing of this statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of
this Schedule 13D, and is filing this schedule because of Rule
13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with this
statement [ ].
(Continued on following pages)
(Page 1 of __ Pages)
CUSIP No. 126-160407 13D Page __ of __ Pages
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Trinity Investment Corp.
I.R.S. No. 13-3807699
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
OO
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
[ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7. SOLE VOTING POWER
OF - 0 -
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 2,372,500
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH - 0 -
REPORTING PERSON 10. SHARED DISPOSITIVE POWER
WITH 2,372,500
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,372,500
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
62.27%
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 126-160407 13D Page __ of __ Pages
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Ascott Wing, Inc.
I.R.S. No. 52-1787171
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
[ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER 7. SOLE VOTING POWER
OF - 0 -
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 604,586
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH - 0 -
REPORTING PERSON 10. SHARED DISPOSITIVE POWER
WITH 604,586
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
604,586
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.87%
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 126-160407 13D Page __ of __ Pages
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Halton House Ltd.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
[ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Bahamas
NUMBER 7. SOLE VOTING POWER
OF - 0 -
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 2,977,086
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH - 0 -
REPORTING PERSON 10. SHARED DISPOSITIVE POWER
WITH 2,977,086
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,977,086
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
78.14%
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 126-160407 13D Page __ of __ Pages
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
The Halton Declaration of Trust
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
[ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Bahamas
NUMBER 7. SOLE VOTING POWER
OF - 0 -
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 2,977,086
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH - 0 -
REPORTING PERSON 10. SHARED DISPOSITIVE POWER
WITH 2,977,086
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,977,086
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
78.14%
14. TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP No. 126-160407 13D Page __ of __ Pages
1. NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Bahamas Protectors, Ltd.
2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3. SEC USE ONLY
4. SOURCE OF FUNDS*
5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) or 2(e)
[ ]
6. CITIZENSHIP OR PLACE OF ORGANIZATION
Bahamas
NUMBER 7. SOLE VOTING POWER
OF - 0 -
SHARES 8. SHARED VOTING POWER
BENEFICIALLY 2,977,086
OWNED BY 9. SOLE DISPOSITIVE POWER
EACH - 0 -
REPORTING PERSON 10. SHARED DISPOSITIVE POWER
WITH 2,977,086
11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,977,086
12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
[ ]
13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
78.14%
14. TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer.
This Amendment No. 6 to Schedule 13D (this "Schedule
13D"), which is being submitted pursuant to Rule 101(a)(2)(ii) of
Regulation S-T, promulgated under the Securities Exchange Act of
1934, as amended, amends and restates in its entirety the
statement on Schedule 13D, as amended, filed with the Securities
and Exchange Commission on February 18, 1993, on behalf of
Trinity Investment Corp., a Delaware corporation, relating to the
Common Stock, par value $.05 per share (the "Common Stock"), of
CPT Holdings, Inc., a Minnesota corporation (the "Issuer"). The
principal executive offices of the Issuer are located at 1430
Broadway, Suite 1300, New York, New York 10018.
Item 2. Identity and Background.
(a), (b), (c), (f) This Schedule 13D is filed jointly
on behalf of Trinity Investment Corp., a Delaware corporation
("Trinity"), Ascott Wing, Inc., a Delaware corporation
("Ascott"), Halton House Ltd., a Bahamas corporation ("Halton
House"), The Halton Declaration of Trust, a Bahamas trust
("Halton Trust") and Bahamas Protectors, Ltd., a Bahamas
corporation ("Protectors").
Trinity's business address is 1430 Broadway, 13th
Floor, New York, New York 10018. The executive officers and
directors of Trinity are:
William L. Remley, President and Director. Mr.
Remley's business address is 1430 Broadway, 13th Floor, New York,
New York 10018. Mr. Remley is a citizen of the United States.
Richard L. Kramer, Vice President, Secretary, Co-
Director and Chairman of the Board. Mr. Kramer's business
address is 1430 Broadway, 13th Floor, New York, New York 10018.
Mr. Kramer is a citizen of the United States.
Ascott's business address is 1430 Broadway, 13th Floor,
New York, New York 10018. The executive officers and directors
of Ascott are:
William L. Remley, President and Director. Mr.
Remley's business address is 1430 Broadway, 13th Floor, New York,
New York 10018. Mr. Remley is a citizen of the United States.
Richard L. Kramer, Vice President, Secretary, Co-
Director and Chairman of the Board. Mr. Kramer's business
address is 1430 Broadway, 13th Floor, New York, New York 10018.
Mr. Kramer is a citizen of the United States.
Halton House's business address is c/o Coutts & Co.
(Bahamas) Ltd., P.O. Box N7788, West Bay Street, Nassau, Bahamas.
The executive officers and directors of Halton House are:
William L. Remley, President and Director. Mr.
Remley's business address is 1430 Broadway, 13th Floor, New York,
New York 10018. Mr. Remley is a citizen of the United States.
Richard L. Kramer, Vice President, Secretary, Co-
Director and Chairman of the Board. Mr. Kramer's business
address is 1430 Broadway, 13th Floor, New York, New York 10018.
Mr. Kramer is a citizen of the United States.
Halton Trust's business address is c/o Coutts & Co.
(Bahamas) Ltd., P.O. Box N7788, West Bay Street, Nassau, Bahamas.
Protectors' business address is Charlotte House,
Charlotte Street, P.O. Box N-341, Nassau, Bahamas. The executive
officers and directors of Protectors are:
Peter B. Evans, President and Director. Mr. Evans'
business address is Charlotte House, Charlotte Street, P.O. Box
N-341, Nassau, Bahamas. Mr. Evans is a citizen of the United
States.
Adrian Crosby-Jones, Secretary, Treasurer and Director.
Ms. Crosby-Jones' business address is Charlotte House, Charlotte
Street, P.O. Box N-341, Nassau, Bahamas. Ms. Crosby-Jones is a
citizen of the United States.
Roger Carpenter, Director. Mr. Carpenter's business
address is Charlotte House, Charlotte Street, P.O. Box N-341,
Nassau, Bahamas. Mr. Carpenter is a citizen of the United
States.
(d), (e) During the past five years, none of Trinity,
Ascott, Halton House, Halton Trust, Protectors (collectively, the
"Reporting Persons") and the individuals described above has been
convicted in a criminal proceeding (excluding traffic violations
or similar misdemeanors) or been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and
as a result of such proceeding was or is subject to a judgment,
decree or final order enjoining further violations of, or
prohibiting activities subject to, federal or state securities
laws or finding any violation of such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The $6,730,000 loaned by Trinity to the Issuer, as
reported in Items 4 and 6 of this Schedule 13D, was obtained by
Trinity from the A.J. 1989 Trust pursuant to a certain loan and
security agreement dated February 1, 1995 by and among Trinity,
the Issuer and the A.J. 1989 Trust (the "AJ Loan Agreement"),
which was previously attached as Exhibit 4.1 to this Schedule 13D
and is incorporated herein by reference. Trinity understands
that the funds loaned to Trinity pursuant to the AJ Loan
Agreement were funds of the A.J. 1989 Trust.
The $1,000,000 loaned (or to be loaned) by Trinity to
Issuer, as reported in Items 4 and 6 of this Schedule 13D, was
obtained by Trinity from the A.J. 1989 Trust pursuant to the AJ
Loan Agreement.
Item 4. Purpose of Transaction.
On April 5, 1995, Trinity loaned to the Issuer the
principal amount of $6,730,000 pursuant to a Credit Agreement
dated as of April 1, 1995, by and between Trinity and the Issuer
(the "1995 Credit Agreement"), which is described in Item 6 of
this Schedule 13D. In connection therewith, Trinity received
from the Issuer a Common Stock Purchase Warrant executed by the
Issuer and dated as of April 1, 1995 (the "April 1995 Warrant")
pursuant to which Trinity may acquire up to two million
(2,000,000) shares of Common Stock at an initial exercise price
of $1.00 per share. Copies of the 1995 Credit Agreement and the
April 1995 Warrant were previously attached to this Schedule 13D
as Exhibits 4.2 and 4.6, respectively, and are incorporated
herein by reference. In the AJ Loan Agreement and in connection
with the 1995 Credit Agreement, the Issuer pledged 14,000 shares
of common stock of J&L Holdings Corporation (formerly known as
Brighton Electric Steel Casting Company) to the AJ 1989 Trust and
to Trinity, respectively.
On February 1, 1996, Trinity agreed to loan to the
Issuer up to a maximum principal amount of $1,000,000 pursuant to
a Line of Credit Agreement dated as of February 1, 1996, by and
between Trinity and the Issuer (the "1996 Credit Agreement")
which is described in Item 6 of this Schedule 13D. In connection
therewith, Trinity received from the Issuer a Common Stock
Purchase Warrant No. 3 executed by the Issuer and dated February
1, 1996 (the "February 1996 Warrant"), pursuant to which Trinity
may acquire after July 30, 1996, up to Three Hundred Thousand
(300,000) shares of Common Stock at an initial exercise price of
Four Dollars ($4.00) per share. Copies of the 1996 Credit
Agreement and the February 1996 Warrant are attached as Exhibits
6.2 and 6.5, respectively, and are incorporated herein by
reference.
Trinity intends to continue to evaluate the Issuer's
financial position and business, future developments, market
conditions, the price of the Issuer's securities in trading
markets and other factors. Trinity may, from time to time,
purchase shares of Common Stock or other securities of the
Issuer, exercise all or a portion of the April 1995 Warrant and
the February 1996 Warrant or sell or otherwise dispose of all or
a portion of the securities of the Issuer over which Trinity then
exercises dispositive power. Such transactions, if any, may
occur in the open market or otherwise.
Except as set forth in this Item 4, none of the
Reporting Persons has any present plans or proposals which relate
to or could result in any of actions specified in clauses (a)
through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a), (b) The following table sets forth information
with respect to shares of Common Stock beneficially owned by each
of the Reporting Persons:
Aggregate
Number of
Shares Sole Power
Beneficially Percentage to Vote or
Name Owned of Class<F1> Direct Vote
_________________________________________________________________
Ascott 604,586 15.87% - 0 -
Trinity 2,372,500 62.27% - 0 -
Halton House 2,977,086<F2> 78.14% - 0 -
Halton Trust 2,977,086<F2> 78.14% - 0 -
Protectors 2,977,086<F3> 78.14% - 0 -
Shared
Sole Power Power
Shared Power to Dispose to Dispose
to Vote or or Direct or Direct
Name Direct Vote Disposition Disposition
_________________________________________________________________
Ascott 604,586 - 0 - 604,586
Trinity 2,372,500 - 0 - 2,372,500
Halton House 2,977,086 - 0 - 2,977,086
Halton Trust 2,977,086 - 0 - 2,977,086
Protectors 2,977,086 - 0 - 2,977,086
<F1> Computed on the basis of 1,510,084 shares of
Common Stock outstanding, assuming that all shares of Common
Stock issuable pursuant to the Amended Plan of Reorganization of
CPT Corporation (submitted and made effective in a Chapter 11
proceeding concerning the predecessor of the Issuer) and held in
escrow arrangements, and all 2,300,000 shares of Common Stock
underlying Warrants held by Trinity, which is a subsidiary of
Halton House, are deemed to be outstanding.
<F2> Includes shares of Common Stock owned by Ascott
and Trinity and 2,300,000 shares of Common Stock underlying
Warrants held by Trinity as to which Halton House and Halton
Trust may be deemed to have voting and investment power.
Although Halton Trust holds ten percent (10%) of the interest in
Halton House as nominee for another trust, Halton Trust currently
exercises voting and investment power with respect thereto.
<F3> Includes shares of Common Stock owned by Ascott
and Trinity and 2,300,000 shares of Common Stock underlying
Warrants held by Trinity, as to which Protectors, as protector of
Halton Trust, may be deemed to have voting and investment power.
(c) As described in Items 4 and 6 of this Schedule
13D, the Issuer issued and delivered to Trinity on April 5, 1995
the April 1995 Warrant, pursuant to which Trinity may acquire up
to two million (2,000,000) shares of Common Stock at an initial
exercise price of $1.00 per share.
As described in Item 4 of this Schedule 13D, the Issuer
delivered to Trinity on February 1, 1996, the February 1996
Warrant, pursuant to which Trinity may acquire up to three
hundred thousand (300,000) shares of Common Stock after July 30,
1996 at an exercise price of $4.00 per share.
(d), (e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships With Respect to Securities of the Issuer.
Both Trinity and Ascott are wholly owned by Halton
House. Halton Trust owns ninety percent (90%) of the shares of
Halton House. Protectors is the protector of Halton Trust. All
powers with respect to investment or voting of securities
beneficially owned by Halton Trust are exercisable by Protectors.
On April 5, 1995, Trinity loaned $6,730,000 to the
Issuer pursuant to the 1995 Credit Agreement. In connection
therewith, the Issuer issued and delivered to Trinity (i) a
debenture in the face amount of $6,730,000 (the "Debenture"),
(ii) a security agreement (pledge) dated as of April 1, 1995 by
and between the Issuer and Trinity (the "Security Agreement"),
(iii) a Warrant Purchase Agreement dated as of April 1, 1995 by
and between the Issuer and Trinity (the "1995 Warrant Agreement")
and (iv) the April 1995 Warrant. Copies of these documents have
previously been filed as exhibits with the Commission, and are
reincorporated herein by reference. Any description of these
documents is qualified in its entirety by reference to such
exhibits.
The Debenture
The Debenture evidences the Issuer's obligation to pay
to Trinity up to $6,730,000 (or such lesser amount as has been
advanced thereunder), plus interest, not later than December 15,
2002. The Debenture provides that interest accrues on the unpaid
principal balance at the rate of thirteen percent (13%) prior to
the occurrence of an event of default, and that such interest is
payable semi-annually commencing on September 30, 1995. Payment
by the Issuer of the indebtedness evidenced by the Debenture is
secured by a pledge by the Issuer of 14,000 shares of common
stock of J&L Holdings Corporation (formerly known as Brighton
Electric Steel Casting Company) pursuant to the Security
Agreement. Such shares of J&L Holdings Corporation constitute in
excess of eighty percent (80%) of the outstanding shares of
voting securities of such corporation. The Security Agreement
provides that such security interest is subordinate to the
interest granted by the Issuer to the A.J. 1989 Trust pursuant to
the AJ Loan Agreement.
The April 1995 Warrant
The April 1995 Warrant grants to Trinity the right to
purchase up to 2,000,000 shares of Common Stock at an exercise
price of $1.00 per share. Trinity's rights to acquire such
shares of Common Stock pursuant to the April 1995 Warrant are
exercisable at any time on or before March 31, 2005. Trinity's
rights to acquire such shares of Common Stock pursuant to the
April 1995 Warrant are transferrable in certain circumstances, in
accordance with the terms of the April 1995 Warrant and the 1995
Warrant Agreement.
The 1995 Warrant Agreement
The 1995 Warrant Agreement provides, among other
things, that Trinity, any persons or entities to which Trinity
properly transfers the April 1995 Warrant or any holder of shares
of Common Stock acquired upon exercise of the Warrant shall be
entitled to (i) receive from the Issuer such financial statements
and information as it or they may request, (ii) visit and inspect
any of the assets or properties owned or leased by the Issuer or
its subsidiaries and (iii) examine the books and records of the
Issuer.
The AJ Loan Agreement
The AJ Loan Agreement provides that the A.J. 1989 Trust
will loan to Trinity up to $10,900,000 (increased from
$10,500,000 in 1995 by that certain Allonge to Promissory Note
dated as of April 20, 1995, a copy of which is attached hereto as
Exhibit 6.6 and is incorporated herein by reference) for the
purposes of (i) loaning to the Issuer up to $7,500,000 to satisfy
certain debts of the Issuer and to fund the Issuer's capital
contribution to J&L Holdings Corporation and (ii) making other
loans or acquiring assets for the purpose of investment or
production of profit or income to or from the Issuer or other
entities or persons, with the consent of the A.J. 1989 Trust. As
funds loaned to Trinity by the A.J. 1989 Trust pursuant to the
AJ Loan Agreement will directly or indirectly benefit the Issuer,
it joined in the AJ Loan Agreement to pledge to the A.J. 1989
Trust 14,000 shares of Brighton Electric Steel Casting Company,
which constitute in excess of eighty percent (80%) of the
outstanding shares of voting securities of such corporation. The
AJ Loan Agreement provides that Trinity pledges to the A.J. 1989
Trust all of its right and interest in the 1995 Credit Agreement,
the Debenture and the Security Agreement, the 1995 Warrant
Purchase Agreement and the April 1995 Warrant. All indebtedness
of Trinity to the A.J. 1989 Trust pursuant to the AJ Loan
Agreement is due and payable not later than January 31, 2005.
On February 1, 1996, Trinity agreed to loan up to
$1,000,000 to the Issuer pursuant to the (i) Promissory Note
(Line of Credit) in the face amount of $1,000,000 (the "Note"),
(ii) Warrant Purchase Agreement dated as of February 1, 1996, by
and between the Issuer and Trinity (the "1996 Warrant Agreement")
and (iii) the February 1996 Warrant. Copies of the 1996 Credit
Agreement, the Note, the 1996 Warrant Agreement and the February
1996 Warrant are attached as Exhibits 6.2, 6.3, 6.4 and 6.5
hereto, respectively, and are incorporated herein by reference.
The following descriptions of certain provisions thereof are
qualified in their entirety by reference to such exhibits.
The Note
The Note evidences the Issuer's obligation to pay to Trinity
up to $1,000,000 (or such lesser amount as has been advanced
thereunder), plus interest, not later than December 15, 2002.
The Note provides that interest accrues on the unpaid principal
balance at the rate of thirteen percent (13%) prior to the
occurrence of an event of default, and that such interest is
payable semi-annually commencing on April 1, 1996.
The February 1996 Warrant
The February 1996 Warrant grants to Trinity the right to
purchase up to 300,000 shares of Common Stock at an exercise
price of $4.00 per share. Trinity's rights to acquire such
shares of Common Stock pursuant to the February 1996 Warrant are
exercisable at any time after July 30, 1996 and on or before
January 31, 2006. Trinity's rights to acquire such shares of
Common Stock pursuant to the February 1996 Warrant are
transferrable in certain circumstances in accordance with the
terms of the February 1996 Warrant and the 1996 Warrant
Agreement.
The 1996 Warrant Agreement
The 1996 Warrant Agreement provides, among other things,
that Trinity, any persons or entities to which Trinity properly
transfers the February 1996 Warrant or any holder of shares of
Common Stock acquired upon exercise of the February 1996 Warrant
shall be entitled to (i) receive from the Issuer such financial
statements and information as it or they may request, (ii) visit
and inspect any of the assets or properties owned or leased by
the Issuer or its subsidiaries and (iii) examine the books and
records of the Issuer.
Item 7. Material to be Filed as Exhibits.
Exhibit 6.1. Joint Filing Agreement.
Exhibit 6.2. Line of Credit Agreement dated as of
February 1, 1996, by and between Trinity Investment Corporation
and CPT Holdings, Inc.
Exhibit 6.3. Promissory Note (Line of Credit) issued
by CPT Holdings, Inc. in the face amount of $1,000,000 payable to
the order of Trinity Investment Corporation.
Exhibit 6.4. Warrant Purchase Agreement dated as of
February 1, 1996, by and between Trinity Investment Corporation
and CPT Holdings, Inc.
Exhibit 6.5. Common Stock Purchase Warrant No. 3 of
CPT Holdings, Inc. dated as of February 1, 1996, and issued to
Trinity Investment Corporation.
Exhibit 6.6 Allonge to Promissory Note dated as of
April 20, 1995, by and between Trinity Investment Corp. and the
A.J. 1989 Trust.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
statement is true, complete and correct.
June 3, 1996
(Date)
ASCOTT WING, INC.
/s/ William L. Remley
(Signature)
William L. Remley
President
(Name/Title)
TRINITY INVESTMENT CORPORATION
/s/ William L. Remley
(Signature)
William L. Remley
President
(Name/Title)
HALTON HOUSE LTD.
/s/ William L. Remley
(Signature)
William L. Remley
President
(Name/Title)
THE HALTON DECLARATION OF TRUST
By: BAHAMAS PROTECTORS, LTD. as
Protector of the Halton
Declaration of Trust
/s/ P.B. Evans
(Signature)
P.B. Evans
Director
(Name/Title)
BAHAMAS PROTECTORS, LTD.
/s/ P.B. Evans
(Signature)
P.B. Evans
Director
(Name/Title)
Exhibit Index
Exhibit Page
6.1 Joint Filing Agreement 17
6.2 Line of Credit Agreement dated as of
February 1, 1996, by and between Trinity
Investment Corporation and CPT Holdings, Inc. 19
6.3. Promissory Note (Line of Credit) issued by
CPT Holdings, Inc. in the face amount of
$1,000,000 payable to the order of Trinity
Investment Corporation. 43
6.4. Warrant Purchase Agreement dated as of
February 1, 1996, by and between Trinity
Investment Corporation and CPT Holdings, Inc. 47
6.5. Common Stock Purchase Warrant No. 3 of CPT
Holdings, Inc. dated as of February 1, 1996,
and issued to Trinity Investment Corporation. 55
6.6. Allonge to Promissory Note dated as of
April 20, 1995, by and between Trinity
Investment Corp. and the A.J. 1989 Trust. 70
Exhibit 6.1
Joint Filing Agreement
In accordance with Rule 13d-1(f) under the Securities
Exchange Act of 1934, as amended, the undersigned hereby agree to
the joint filing on behalf of each of them of Amendment No. 6 to
Schedule 13D with respect to the Common Stock, par value $.05 per
share, of CPT Holdings, Inc. and that this agreement shall be
included as an exhibit to such joint filing.
IN WITNESS WHEREOF, the undersigned hereby execute this
Joint Filing Agreement this 3rd day of June, 1996.
ASCOTT WING, INC.
By: /s/ William L. Remley
William L. Remley, President
TRINITY INVESTMENT CORPORATION
By: /s/ William L. Remley
William L. Remley, President
HALTON HOUSE, LTD.
By: /s/ William L. Remley
William L. Remley, President
THE HALTON DECLARATION OF TRUST
By: BAHAMA PROTECTORS, LTD., as
Protector of the Halton
Declaration of Trust
By: /s/ P.B. Evans
Name: P.B. Evans
Title: Director
BAHAMA PROTECTORS, LTD.
By: /s/ P.B. Evans
Name: P.B. Evans
Title: Director
Exhibit 6.2
LINE OF CREDIT AGREEMENT
THIS LINE OF CREDIT AGREEMENT (this "Agreement") is made and
entered into effective as of February 1, 1996 by and between (i)
CPT HOLDINGS, INC., a Minnesota corporation (the "Borrower"), and
(ii) TRINITY INVESTMENT CORP., a Delaware corporation (the
"Lender").
RECITALS
A. Borrower has requested that the Lender make available a
line of credit to Borrower in the principal amount of up to One
Million Dollars ($1,000,000) [the "Principal Amount"].
B. Borrower desires to use the Principal Amount to repay
and satisfy certain interest payment obligations of Borrower from
time to time under and pursuant to that certain Debenture (the
"Debenture") by and between Borrower and Lender dated March 31,
1995 (collectively, the "Outstanding Obligations").
C. The parties desire to enter into this Agreement for the
purpose of setting forth their understandings and agreements with
respect to the foregoing.
NOW, THEREFORE, the Borrower and the Lender hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Certain Defined Terms. As used in this
Agreement, the following terms have the following meanings:
"Affiliate" means, with respect to any Person, any
other Person or any group acting in concert in respect of such
Person that, directly or indirectly, controls, is controlled by
or is under common control with such Person. For the purposes of
this definition, "control" means the possession of the power to
direct or cause the direction of management and policies of such
Person, whether through the ownership of voting securities, by
contract or otherwise, and an Affiliate of the Borrower shall
include, without limitation, any officer or director of the
Borrower.
"Agreement" means this Line of Credit Agreement, as the
same may be amended from time to time.
"Authorized Officer" means the President or the Chief
Financial Officer of the Borrower.
"Business Day" means a day of the year on which banks
are not required or authorized to close in New York City, New
York.
"Capital Distribution" means any payment or
distribution made, liability incurred or other consideration
given for the purchase, acquisition, redemption or retirement of
any capital stock of the Borrower or as a dividend, return of
capital or other payment or distribution of any kind to a
shareholder of the Borrower (other than any stock dividend or
stock split or similar distribution payable only in capital stock
of the Borrower).
"Capital Expenditures" means, for any period and with
respect to any Person, the aggregate of all expenditures
(including payment of lease obligations which are required to be
capitalized under generally accepted accounting principles) by
such Person for property, plant and equipment (including
renewals, improvements, replacements and capitalized repairs)
during such period which should be reflected as additions to
property, plant or equipment in a consolidated balance sheet of
such Person prepared in accordance with generally accepted
accounting principles. Capital Expenditures, for all purposes of
this Agreement, shall be determined in accordance with generally
accepted accounting principles.
"Closing Date" means February 1, 1996.
"Code" means the Internal Revenue Code of 1986, as
amended.
"Controlled Group" means, as to any Person, all members
of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control
with such Person which, together with such Person, are treated as
a single employer under Section 414(b), 414(c) or 414(m) of the
Code.
"Credit Advance" has the meaning specified in
Section 2.1(a) hereof.
"Credit Commitment" has the meaning specified in
Section 2.1(a) hereof.
"Debt" means, without duplication, (a) indebtedness for
borrowed money or for the deferred purchase price of property or
services (including, without limitation, reimbursement and all
other obligations with respect to surety bonds, letters of credit
and bankers' acceptances, whether or not matured), or obligations
evidenced by notes, bonds, debentures or similar instruments,
except accounts payable and accrued liabilities arising in the
ordinary course of business; (b) obligations as lessee under
leases which are or should be, in accordance with generally
accepted accounting principles, recorded as capital leases; (c)
obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss
in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (a) or (b) above; (d) Unfunded Vested
Liabilities and all liabilities in respect of withdrawal
liability incurred under ERISA, and (e) all Debt of others
secured by a Lien on any asset of such Person, whether or not
such Debt is assumed by such Person.
"Default" means any event which, with the giving of
notice, the passage of time or both would become an Event of
Default.
"Environmental Laws" means all provisions of law,
statutes, ordinances, rules, regulations, permits, licenses,
judgments, writs, injunctions, decrees, orders, awards and
standards promulgated by the government of the United States of
America or by any state, district or municipality thereof or by
any court, agency, instrumentality, regulatory authority or
commission of any of the foregoing concerning health, safety and
protection of, or regulation of the discharge of substances into,
the environment.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time.
"Event of Default" has the meaning specified in
Section 6.1 hereof.
"Indemnified Persons" has the meaning specified in
Section 7.4(b) hereof.
"Loan Documents" means this Agreement and all
debentures, promissory notes, agreements, assignments,
certificates and other instruments and documents which are
required by this Agreement or in connection with the Debenture to
be executed or delivered by or on behalf of the Borrower or any
other Person (and includes, without limitation, the Note, the
Warrant Purchase Agreement and the Warrant).
"Lien" means, with respect to any asset, any mortgage,
lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset. For the purposes of this
Agreement, any Person shall be deemed to own, subject to a Lien,
any asset which it has acquired or holds subject to the interest
of a vendor or lessor under any conditional sale agreement,
capital lease or other title retention agreement relating to such
asset.
"Multiemployer Plan" means, as to any Person at any
time, an employee pension benefit plan that is covered by Title
IV of ERISA or is subject to the minimum funding standards under
Section 412 of the Code and is maintained pursuant to a
collective bargaining agreement or any other arrangement under
which more than one (1) employer makes contributions and to which
such Person or any member of its Controlled Group is then making
or accruing an obligation to make contributions or has within the
preceding five (5) plan years made contributions.
"Note" means that certain Promissory Note (Line of
Credit) to be executed by the Borrower and payable to the order
of the Lender, substantially in the form of Exhibit A attached
hereto and made a part hereof, to evidencing the aggregate
indebtedness of the Borrower to the Lender resulting from the
Credit Advances made by the Lender.
"Obligations" means any obligation of the Borrower (a)
to pay the Lender the principal of and interest on any amount
loaned hereunder or on any debenture or promissory note in
accordance with the terms thereof and all fees and costs relating
thereto; (b) to pay, satisfy or perform any other liability or
obligation to the Lender, however arising, whether arising under
this Agreement, any of the other Loan Documents or otherwise,
whether now existing or hereafter incurred by reason of future
advances or otherwise, matured or unmatured, direct or
contingent, joint or several, including any extensions,
modifications, or renewals thereof and substitutions therefor,
and including, without limitation, all costs and expenses,
including interest thereon and attorneys' fees to the fullest
extent permitted by law, incurred by the Lender for the
protection and preservation or enforcement of its rights and
remedies arising hereunder or under the Loan Documents; (c) to
repay to the Lender all amounts advanced at any time by the
Lender, including, without limitation, advances for principal or
interest payments to prior secured parties, mortgagees or other
Persons, or for taxes, levies, insurance, rent, or repairs to, or
maintenance or storage of, any of the property of the Borrower;
(d) to perform any covenant or agreement made with the Lender; or
(e) to take any other action in respect of any other liability of
any nature of the Borrower to the Lender.
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all its functions under ERISA.
"Permitted Liens" has the meaning specified in
Section 5.2(a) hereof.
"Person" means an individual, partnership, corporation,
joint stock company, trust, unincorporated association, joint
venture or other entity, or a foreign state or political
subdivision thereof or any agency of such state or subdivision.
"Plan" means, with respect to any Person at any time,
any employee benefit plan, as defined under Section 3(3) of ERISA
that is maintained by such Person or any member of its Controlled
Group for employees of such Person.
"Reportable Event" means a reportable event as that
term is defined in Title IV of ERISA, excluding, however, such
events as to which the PBGC by regulation has waived the
requirement of Section 4043(a) of ERISA that it be notified
within thirty days (30) of the occurrence of such event (provided
that failure to meet the minimum funding standard of Section 412
of the Code and of Section 302 of ERISA shall be a Reportable
Event regardless of the issuance of any such waivers in
accordance with Section 412(d) of the Code).
"Termination Date" means the date which shall be
December 15, 2002.
"Unfunded Vested Liabilities" means, with respect to
any plan at any time, the amount (if any) by which the present
value of all non-forfeitable benefits under such Plan exceeds the
fair market value of all Plan assets allocable to such benefits,
all determined as to the then most recent valuation date for such
Plan, but only to the extent that such excess represents a
potential liability of the Borrower under Title IV of ERISA to
the PBGC or to a trust established pursuant to the provisions of
Section 4041(c)(3)(B) or 4042(i) of ERISA (or to any trustee
thereof).
"Warrant" means the Common Stock Purchase Warrant and
the Warrant Purchase Agreement, each dated as of the Closing
Date, pursuant to which the Borrower shall grant the Lender the
right to purchase an aggregate of up to three hundred thousand
300,000) shares of the Common Stock of CPT Holdings, Inc., upon
the terms and conditions stated therein.
SECTION 1.2 Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including",
the words "to" and "until" each mean "to but excluding" and the
word "through" means "to and including".
SECTION 1.3 Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with
generally accepted accounting principles in effect on the date of
this Agreement.
ARTICLE II
AMOUNT AND TERMS OF CREDIT
SECTION 2.1 Amount and Nature of the Credit Advances.
(a) The Credit Advances. Subject to the terms and
conditions of this Agreement, the Lender, in its sole and
absolute discretion, may, but is not obligated to, make advances
(individually, a "Credit Advance" and collectively, the "Credit
Advances") to the Borrower on or after the Closing Date up to One
Million Dollars ($1,000,000) in the aggregate [the "Credit
Commitment"].
(b) Purpose of Credit Advances. The Credit Advances
shall be used by the Borrower to satisfy the Outstanding
Obligations or any other Obligations owed by Borrower to Lender.
(c) Repayment of Principal of the Credit Advances.
The Borrower shall repay the entire principal amount of the
Credit Advances in full on or before December 15, 2002.
(d) Interest on Credit Advances. Each Credit Advance
shall bear interest on the unpaid principal amount thereof from
the date of such advance until December 15, 2002 at a per annum
rate equal to thirteen percent (13%). Interest shall be payable
on a semi-annual basis in the manner specified in the Note.
(e) The Note. The obligation of the Borrower to repay
the principal amount of the Credit Advances and interest thereon
shall be evidenced by the Note, which shall be executed and
delivered to the Lender by the Borrower on the Closing Date.
SECTION 2.2 Default Interest/Maximum Interest Rate.
(a) Default Interest. As long as any Event of Default
described in Section 6.1 hereof shall be continuing, the unpaid
principal balance of all Credit Advances shall, instead of the
rate fixed pursuant to Section 2.1(d) hereof, bear interest at a
per annum rate equal to eighteen percent (18%).
(b) Maximum Interest Rate. The rate of interest
payable on the Note from time to time shall in no event exceed
the maximum rate permissible under applicable law. In the event
the operation of any provision of the Note results in an
effective rate of interest transcending the limit of the usury or
any other law applicable to the loan evidenced hereby, all sums
in excess of those lawfully collectible as interest for the
period in question shall, without further agreement or notice by
any party to the Note, be applied to the unpaid principal balance
of the Note immediately upon receipt of such monies by the
Lender, with the same force and effect as though the Borrower had
specifically designated such extra sums to be so applied to the
unpaid principal balance and the Lender had agreed to accept such
extra payment(s) as a prepayment. If the rate of interest
payable on the Note is ever reduced as a result of this Section
2.2(b) and at any time thereafter the maximum rate permitted by
applicable law shall exceed the rate of interest provided for on
the Note, then the rate provided for on the Note shall be
increased to the maximum rate permitted by applicable law for
such period as is required so that the total amount of interest
received by the Lender holding the Note is that which would have
been received by the Lender but for the operation of the
preceding sentence.
SECTION 2.3 Payments and Computations.
(a) The Borrower shall make each payment of principal,
interest and fees due hereunder and under the Note not later than
11:00 A.M. (New York City time) on the day when due in United
States dollars to the Lender at c/o Mentmore Holdings Corp., 1430
Broadway, 13th Floor, New York, New York 10018 (or to such other
address as shall be designated in writing by the Lender to the
Borrower) in good funds.
(b) All computations of fees and of rates of interest
on the Credit Advances and interest payments due thereon shall be
made on the basis of a year of three hundred sixty-five (365)
days. Each determination by the Lender of an interest rate or
fee hereunder shall be, in the absence of manifest error,
conclusive and binding on the Borrower for all purposes.
(c) Whenever any payment hereunder or under the Note
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and in such case, such extension of time shall be included in the
computation of payment of interest or of any other fees due
hereunder, as the case may be.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.1 Conditions Precedent to the Credit Advances.
The receipt by Borrower of any Credit Advance shall be subject to
the satisfaction by the Borrower, on or before the date of such
advance, of the following conditions precedent:
(a) The Lender shall have received the following, each
dated as of the Closing Date, in form and substance satisfactory
to the Lender:
(i) the Note;
(ii) the Warrant;
(iii) the Warrant Purchase Agreement; and
(iv) certified copies of the resolutions of
the Board of Directors of the Borrower
approving the Loan Documents and the
transactions contemplated thereby and
all other documents delivered hereunder
or thereunder to which the Borrower is a
party and other documents and instru-
ments evidencing other necessary
corporate action, if any, with respect
to each such Loan Document.
(b) On the Closing Date the Borrower shall pay all
costs and expenses of the Lender (including, without limitation,
attorneys' fees) to such date, of which the Lender is aware, in
connection with the preparation, execution and delivery of the
Loan Documents and the other documents to be delivered hereunder
and thereunder and the consummation of the transactions
contemplated hereby and thereby.
(c) As of the date of each Credit Advance, there shall
have been no default under the Note or hereunder and no material
adverse change in the business, operations, properties, assets or
financial condition of the Borrower or any litigation which might
have a material adverse effect thereon and the representations
and warranties of the Borrower set forth herein shall be true and
correct in all material respects.
(d) The Lender shall have received such other
approvals, opinions, documents or information as the Lender may
reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 4.1 Representations and Warranties of the Borrower.
The Borrower represents and warrants to the Lender as of the date
hereof and as of the date of each Credit Advance as follows:
(a) Organization and Powers. The Borrower is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdictions specified in the heading of
this Agreement, has the requisite corporate power and authority
to own its properties and to carry on its business as it is now
being conducted, is duly qualified to transact business and is in
good standing in each other jurisdiction in which the nature of
the business conducted or the properties or assets owned or
leased by it makes such qualification necessary, except to the
extent that a failure to be so qualified could not be reasonably
expected to have a materially adverse effect upon the business or
financial condition of the Borrower.
(b) Authorization. The execution, delivery and
performance by the Borrower of each Loan Document are within its
corporate powers, have been duly authorized by all necessary
corporate, including shareholder (if applicable), action, and do
not contravene its charter, its bylaws or any law, judgment,
order or contractual restriction binding on or affecting it.
(c) Consents. No authorization, consent or approval
or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other person is
required for the due execution, delivery and performance by the
Borrower of this Agreement and each Loan Document to which it is
a party other than such authorizations and approvals as have
already been obtained and are in full force and effect or as may
be required in connection with the exercise by the Lender of
remedies pursuant to certain of the Loan Documents.
(d) Enforceability. This Agreement is, and each Loan
Document when delivered hereunder will be, duly executed and
delivered and constitute the legal, valid and binding obligations
of the Borrower, enforceable against the Borrower in accordance
with their respective terms.
(e) Margin Stock. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of Regulation U issued
by the Board of Governors of the Federal Reserve System), and no
proceeds of the Credit Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(f) Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended.
(g) Material Adverse Change. Except for operating
losses in the ordinary course of business, there has been no
material adverse change in the business, liabilities, operations,
properties, prospects, assets or condition (financial or
otherwise) of the Borrower since September 30, 1995.
(h) Insurance. The insurance policies owned by or
issued to the Borrower, including, without limitation, policies
of fire, theft, public liability, property damage, other
casualty, employee fidelity, worker's compensation, employee
health and welfare, title, property and liability insurance, are
in full force and effect and are of a nature and provide such
coverage as is sufficient and as is customarily carried by
companies of the size and character of the Borrower. The
Borrower has not been refused insurance for which it has applied
or had any policy of insurance terminated (other than at its
request).
(i) Liabilities. The Borrower has no liabilities
(whether absolute or contingent and whether due or become due) or
loss contingency (as those terms are defined in the Statement of
Financial Standards No. 5) which are not disclosed on the
financial statements of the Borrower or otherwise on a Schedule
hereto, except for non-material liabilities occurring in the
ordinary course of business.
(j) Financial Statements. The Borrower has heretofore
provided to the Lender, or has provided the Lender access to,
the following financial statements of the Borrower (the
"Financial Statements"):
(i) financial statements of the Borrower as
of the close of its most recently
completed fiscal year, including a
balance sheet as of such date and a
related income statement and statement
of cash flow; and
(ii) an unaudited balance sheet as of, and a
related income statement for, the period
specified therein.
The Financial Statements referred to in (i) above have been
prepared by the Borrower's independent public accountants, and
all of the Financial Statements referred to in (i) and (ii) above
present fairly the financial condition and results of operations
of the Borrower as of the dates indicated (including, without
limiting the generality of the foregoing, a disclosure of all
material contingent liabilities which are required to be
disclosed in accordance with generally accepted accounting
principles) and have been prepared in accordance with generally
accepted accounting principles, consistently applied, subject in
the case of statements for interim periods to normal and
recurring year end adjustments which are not material in the
aggregate.
(k) Material Contracts and Commitments. The Borrower
has previously permitted the Lender to review a true and complete
description of, or has provided the Lender access to, all
material contracts and commitments of the Borrower, whether oral
or written, including, without limitation, (a) those governing
any Debt for borrowed money; (b) any security agreement, pledge
agreement, mortgage, guaranty, conditional sale contract or lease
of real or personal property; (c) management, service or
employment agreements; (d) collective bargaining agreements; (e)
contracts or commitments for the future purchase or sale of goods
by the Borrower, other than those which involve the payment or
receipt of less than Twenty Thousand Dollars ($20,000) in any
single case; (f) contracts or commitments which involve a Capital
Expenditure in excess of Twenty Thousand Dollars ($20,000) in any
single case; and (g) bonus, pension, retirement, insurance or
other employee benefit plans; and has further identified each
such contract which requires consent to the granting of a
security interest or lien in favor of the Lender on the
Borrower's rights under such contract. The Borrower shall
provide true and complete copies of any document, record or
statement referred to in this Article 4 to the Lender at its
written request at any time and from time to time.
(l) Absence of Conflicts. The execution, delivery and
performance of this Agreement and the Loan Documents and all
actions and transactions contemplated hereby and thereby will not
(a) violate, be in conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default
under (i) any provision of the charter or bylaws of the Borrower,
(ii) any arbitration award or any order of any court or of any
other governmental agency or authority, (iii) any applicable law,
rule, order or regulation, indenture, agreement or other
instrument to which the Borrower is a party or by which the
Borrower or any of its properties is or will be bound and which
has not been waived or consented to; provided, however, that the
failure to obtain any such excepted consents shall not be
reasonably expected to have any material adverse effect upon the
business and financial condition of the Borrower, or (b) result
in the creation or imposition of any material lien, charge or
encumbrance of any nature whatsoever, other than in favor of the
Lender, upon any of the properties of the Borrower.
(m) Environmental Compliance. The Borrower is in
substantial compliance with all Environmental Laws, including,
without limitation, all Environmental Laws in all jurisdictions
in which the Borrower owns or operates or has owned or operated a
facility or site, arranges or has arranged for disposal or
treatment of hazardous substances, solid waste or other wastes,
accepts or has accepted for transport any hazardous substances,
solid waste or other wastes or holds or has held any interest in
real property or otherwise. No litigation or proceeding arising
under, relating to or in connection with any Environmental Law is
pending or, to the best of the Borrower's knowledge, threatened
against the Borrower, any real property in which the Borrower
holds or has held an interest, or any past or present operation
of the Borrower, which, if adversely determined, could have a
material adverse effect upon the business, properties or
condition (financial or otherwise) of the Borrower or on its
ability to perform its obligations hereunder or under any Loan
Document. No release, threatened release or disposal of
hazardous waste, solid waste or other waste is occurring or has
occurred, on, under or to any real property in which the Borrower
holds any interest or performs any of its operations, in
violation of any Environmental Law. As used in this subsection,
"litigation or proceeding" means any demand, claim, notice, suit,
suit in equity, action, administrative action, investigation or
inquiry whether brought by any governmental authority, private
person or entity or otherwise.
(n) Solvency. The Borrower has received consideration
which is the reasonable equivalent value of the obligations and
liabilities that the Borrower has incurred to the Lender. The
Borrower is not insolvent as defined in any applicable state or
federal statute, nor will the Borrower be rendered insolvent by
the execution and delivery of this Agreement or the Note to the
Lender. The Borrower does not intend to, nor does it believe that
it will, incur debts beyond its ability to pay them as they
mature.
(o) Borrower's Principal Place of Business. The
Borrower's principal place of business is located in the county
and at the address heretofore provided to the Lender.
(p) Certain Security Interests. The Borrower has
heretofore disclosed to the Lender all security interests and
encumbrances presently of record against any of the corporate
assets of the Borrower, tangible and intangible. There are no
other security interests or encumbrances of any nature or
character with respect thereto, except as referenced on the
Financial Statements.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.1 Affirmative Covenants. As long as the
Obligations shall remain unpaid, the Borrower covenants and
agrees to do the following, unless the Lender shall otherwise
consent in writing:
(a) Maintenance of Existence; Conduct of Business.
Preserve and maintain its legal existence and all of its rights,
privileges and licenses necessary or desirable in the normal
conduct of its business, and:
(i) continue to conduct its business in an
ordinary businesslike manner;
(ii) use its reasonable efforts, in the
ordinary course and consistent with past
practice, to preserve the goodwill and
business of the customers, suppliers and
others having business relations with
the Borrower, and to keep available the
services and goodwill of the present
employees of the Borrower;
(iii) to the extent applicable, preserve its
patents, registered trademarks, trade
names and service marks and copyrights;
and
(iv) perform and observe, in all material
respects, all the terms, covenants and
conditions required to be performed and
observed by it under any lease
(including, without limitation, the
payment of all rent and other charges
payable under any lease) or any other
material contract to which it is a party
or by which it is bound, and shall use
its best efforts to preserve and to keep
unimpaired its rights under such leases
and contracts.
(b) Compliance with Laws, Etc. Comply with all
applicable federal, state and local laws, rules, regulations and
orders, and all material licenses, permits and other instruments
relating or otherwise applicable to the operation of its
business, except where the failure to comply would not have a
material adverse effect on the business, properties, operations,
profits, or financial condition of the Borrower or on the rights
and remedies of the Lender hereunder.
(c) Taxes and Claims. Pay and discharge all taxes,
assessments and governmental charges or levies imposed upon it or
upon its income or profits, or upon any property belonging to it
prior to the date on which penalties attach thereto, and all
lawful claims which, if unpaid, might become a Lien upon the
property of the Borrower, provided that no such tax, assessment,
charge, levy or claim shall be required to be paid if the payment
of such is being contested in good faith and by proper
proceedings and reserves with respect thereto that are adequate
in the Borrower's good faith judgment are maintained.
(d) Insurance. Maintain the policies of insurance
with responsible companies in such amounts and against such risks
as are usually carried by owners of similar businesses and
properties in the same general areas in which it operates. The
Borrower will furnish to the Lender, upon written request from
time to time, such information as may be reasonably requested as
to the insurance maintained by the Borrower.
(e) Maintenance of and Access to Books and Properties.
Keep proper books of record and account, in which full and
correct entries are made of all its financial transactions and
its assets and business in accordance with generally accepted
accounting principles consistently applied and sound business
practices, keep all of its properties necessary to its business
in good working order and condition, ordinary wear and tear
excepted, and permit representatives of the Lender to inspect
such properties, and to examine and make extracts from its books
and records, and to discuss the affairs, finances and accounts of
the Borrower with the principal officers of the Borrower and its
independent public accountants, all during normal business hours
upon reasonable notice.
(f) Notice of Default and Litigation. Promptly upon
receipt of knowledge thereof, deliver to the Lender notice of any
Default or Event of Default, of any audit of the Borrower's
records in connection with alleged defects in its pricing
policies or otherwise, and of all litigation and of all
proceedings before any courts, arbitrators or governmental or
regulatory agency affecting the Borrower, except litigation or
proceedings which, if adversely determined, could not reasonably
be expected to materially and adversely affect the business,
properties, prospects, assets, operations or financial condition
of the Borrower.
(g) Reporting Requirements. Furnish to the Lender:
(i) copies of all financial information
required by and/or provided to any of
the Borrower's other commercial lenders
at the same time such information is
provided to such other lenders;
(ii) upon the Lender's request, a certifi-
cate, which shall be certified by an
appropriate officer of the Borrower,
which certification from such officer
shall be to the effect that no Default
or Event of Default has occurred
hereunder, or if a Default or an Event
of Default has occurred, specifying the
exact nature of such Default or Event of
Default and the actions the Borrower is
taking to cure the same;
(iii) as soon as available and in any event
within one hundred twenty (120) days
after the end of each fiscal year of the
Borrower, a balance sheet of the
Borrower for such fiscal year and
related statements of income, retained
earnings and cash flow of the Borrower,
with such financial statements to be
prepared by certified public accountants
reasonably acceptable to the Lender;
(iv) promptly after the sending or filing
thereof or upon their becoming
available, copies of all registration
statements or other reports, or
documents, if any, which the Borrower
sends to any of its stockholders or
files with or receives from the
Securities and Exchange Commission or
any stock exchange;
(v) upon the Lender's request, a written
description of all material reports and
notices which the Borrower files with or
delivers to, or receives from or is
required to file with or deliver to, the
Internal Revenue Service, the PBGC or
the United States Department of Labor,
including, without limitation, notice to
the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with
respect to any Plan which might
constitute grounds for the termination
of such Plan under Title IV of ERISA;
(vi) upon the Lender's request, budgets of
the Borrower for the succeeding fiscal
year, which shall include a statement of
projected Capital Expenditures to be
made in such year; and
(vii) such other information respecting the
business operations, or financial
condition of the Borrower as the Lender
may from time to time reasonably
request.
(h) Title to Property. Own and hold title to all of
its assets in its own name and not in the name of any nominee.
(i) Environmental Compliance. Comply with any and all
Environmental Laws, including, without limitation, all
Environmental Laws in jurisdictions in which the Borrower owns or
operates a facility or site, arranges for disposal or treatment
of hazardous substances, solid waste or other wastes, accepts for
transport any hazardous substances, solid wastes, or other wastes
or holds any interest in real property or otherwise. The
Borrower shall furnish to the Lender promptly after receipt
thereof a copy of any notice the Borrower may receive from any
governmental authority, private person or entity or otherwise
that any litigation or proceeding pertaining to any
environmental, health or safety matter has been filed or is
threatened against the Borrower, any real property in which the
Borrower holds any interest or any past or present operation of
the Borrower. The Borrower shall not authorize the release or
disposal of hazardous waste, solid waste or other wastes on,
under or to any real property in which the Borrower holds any
interest or performs any of its operations, in violation of any
Environmental Law. As used in this subsection "litigation or
proceeding" means any demand, claim, notice, suit, suit in
equity, actions, administrative action, investigation or inquiry
whether brought by any governmental authority, private person or
entity or otherwise. The Borrower shall defend, indemnify and
hold the Lender harmless against all costs, expenses, claims,
damages, penalties and liabilities of every kind or nature
whatsoever (including attorneys' fees and all third-party
expenses) arising out of or resulting from the noncompliance of
the Borrower with any Environmental Law.
SECTION 5.2 Negative Covenants. As long as the Obligations
shall remain unpaid, the Borrower shall not, without the consent
of the Lender:
(a) Liens, Etc. Create or suffer to exist any Lien
upon or with respect to any of its properties or assets (tangible
and intangible), whether now owned or hereafter acquired, or
assign any right to receive income, in each case to secure any
Debt or obligation of any Person, other than (i) the Liens in
existence on the Closing Date that are disclosed in the financial
statements of the Borrower or any schedule or other communication
heretofore provided or made by the Borrower to the Lender; (ii)
purchase money Liens upon or in any property acquired or held by
it in the ordinary course of business or to secure the purchase
price of such property or to secure indebtedness incurred solely
for the purpose of financing the acquisition of such property;
(iii) Liens existing on property at the time of its acquisition;
(iv) Liens in favor of materialmen, mechanics, warehousemen,
carriers, lessors or other similar Persons incurred by it in the
ordinary course of business which secure its obligations to any
Person; (v) Liens securing taxes, assessments or governmental
charges or levies; provided that it is not in default in respect
of any payment obligation with respect thereto unless contested
in good faith with appropriate reserves set aside therefor; and
(vi) encumbrances consisting of zoning restrictions, easements,
licenses, reservations, provisions, covenants, conditions,
waivers, restrictions on the use of the real property or minor
irregularities of title, provided that none of such encumbrances
materially impairs the use or value of any property in the
operation of the Borrower's business. The Liens described in
clauses (i) - (vi) hereof shall also be referred to as "Permitted
Liens".
(b) Dividends, Distributions, Etc. Declare, pay or
make any Capital Distribution or make any payment in settlement
or cancellation of any warrants, rights or options to acquire any
shares of its capital now or hereafter outstanding.
(c) Mergers, Dispositions, Etc. Consolidate or merge
with any Person, liquidate or dissolve, or sell, lease, assign,
transfer or otherwise dispose of all or any material part of its
business or assets, or any real property (other than non-material
dispositions in the ordinary course of business), to any Person.
(d) Contingent Liabilities. Except as expressly
permitted herein, assume, endorse, be or become liable for, or
guarantee, directly or indirectly, any Debt or obligation of any
other Person, or in any manner provide for the payment of any
Debt of any other Person or otherwise protect the holder of such
Debt against loss (whether by virtue of partnership arrangements,
agreements to keep-well, to purchase assets, goods, securities or
services, or to take-or-pay or otherwise) except to re-
endorsements for collection or deposit in the ordinary course of
business.
(e) Ancillary Agreements. Amend, modify, waive,
supersede or cancel any provision of the Borrower's Articles or
Certificate of Incorporation, as the case may be, or bylaws, or
any material agreement to which the Borrower is a party if such
amendment might have a material adverse effect upon the Borrower
or the rights and remedies of the Lender hereunder or under any
of the other Loan Documents.
(f) Compliance with ERISA. Terminate any Plan under
Title IV of ERISA so as to result in any liability of the
Borrower, permit to exist any occurrence of any Reportable Event,
or any other event or condition, which presents the risk of
liability of the Borrower or make or permit a member of its
Controlled Group to make a complete or partial withdrawal (as
defined in Title IV of ERISA) from any Multiemployer Plan so as
to result in any liability) to the Borrower.
(g) Accounting Changes. Make any significant change
in the accounting treatment and reporting practices except as
required or appropriate by generally accepted accounting
principles and with notice to the Lender thereof.
(h) Change in Principal Place of Business. Move its
principal place of business from its location on the Closing
Date, without not less than ten (10) days' prior written notice
to the Lender.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.1 Event of Default. If any of the following
events ("Event of Default") shall occur and be continuing:
(a) the Borrower shall fail to pay any installment of
principal of or interest on the Note or the Debenture or shall
fail to pay to the Lender any amounts payable hereunder or under
any Loan Document, when due and such amount shall remain unpaid
for a period of ten (10) days after written notice of such
failure by the Lender to the Borrower; or
(b) any representation or warranty made by the
Borrower, or any of its officers herein, in any certificate
delivered hereunder, or in any Loan Document shall prove to have
been incorrect in any material respect when made and shall not be
cured within thirty (30) days after receipt of written notice
thereof from the Lender; or
(c) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.1 or 5.2
hereof; or
(d) the Borrower shall fail to perform, observe or
comply with any other term, covenant or agreement contained in
any Loan Document on its part to be performed, observed or
complied with at any time and such failure shall remain
unremedied in any material respect for thirty (30) days after the
earlier of actual knowledge thereof is obtained by an officer of
the Borrower or notice with respect thereto is delivered to the
Borrower; or
(e) the Borrower shall generally not pay its debts as
such debts become due, or shall admit in writing its inability to
pay its debts generally, or shall make a general assignment for
the benefit of creditors, or any proceeding shall be instituted
by or against it seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or
other similar official for it or for any substantial part of its
property or it shall take any action to authorize any of the
actions set forth above in this Section 6.1(e); provided,
however, that, in the case of any such proceeding commenced
against it by any Person other than an Affiliate thereof, such
proceedings shall not of themselves constitute an Event of
Default hereunder if the proceedings are dismissed within ninety
(90) days following their commencement; or
(f) any final judgment, judgments, order or orders for
the payment of money in any aggregate amount in excess of One
Hundred Thousand Dollars ($100,000) not covered by insurance, the
coverage of which is not contested in good faith, shall be
rendered against the Borrower and shall remain undischarged and
unstayed for a period of thirty (30) days from the date of entry;
or
(g) any material provision of any Loan Document shall
cease to be valid or enforceable in accordance with its terms; or
(h) the Borrower shall fail to pay when due an amount
or amounts aggregating in excess of Twenty Thousand Dollars
($20,000) which it shall have become liable to pay under Title IV
of ERISA to the PBGC or to a trust established pursuant to
Section 4041(c)(3)(B) or Section 4042(i) of ERISA (or any trustee
thereof); or notice of intent to terminate a Plan or Plans having
aggregate Unfunded Vested Liabilities as of the proposed date of
termination in excess of Twenty Thousand Dollars ($20,000) shall
be filed under Title IV or ERISA; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a
trustee to be appointed to administer a Plan or Plans having
aggregate Unfunded Vested Liabilities in excess of Twenty
Thousand Dollars ($20,000); or a proceeding shall be instituted
by a fiduciary of any such Plan or Plans against any such Person
to enforce Section 515 of ERISA; or a condition shall exist by
reason of which the PBGC would be entitled to obtain a decree
adjudicating that a Plan or Plans having aggregate Unfunded
Vested Liabilities in excess of Twenty Thousand Dollars ($20,000)
must be terminated; or
(i) any court, government or governmental agency shall
condemn, seize, or otherwise appropriate, or take custody or
control of any substantial portion of the assets of the Borrower;
then, and in any such event, the Lender may, by notice delivered
to the Borrower, declare the Note, all interest thereon and all
other amounts payable thereunder and under this Agreement to be
forthwith due and payable, whereupon the Note, all such interest
and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice
of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that, upon the occurrence of any
event specified in Section 6.1(e) hereof, the Note, together with
all interest thereon and all amounts payable thereunder and under
this Agreement, shall become immediately due and payable without
any declaration, notice or demand by the Lender.
SECTION 6.2 Performance by the Lender. If at any time the
Borrower fails or refuses to pay or perform any obligation or
duty to any third Person, except for payments which are the
subject of bona fide disputes in the ordinary course of business,
and if such failure would constitute or result in a Default or an
Event of Default, the Lender may, in its sole discretion, but
shall not be obligated to, pay or perform the same on behalf of
the Borrower and the Borrower shall promptly repay all amounts so
paid, and all costs and expenses so incurred. This repayment
obligation shall become one of the Obligations of the Borrower
hereunder and shall bear interest at the default interest rate
provided in Section 2.2(a) above.
SECTION 6.3 Other Remedies. Upon an Event of Default
hereunder, and during the continuance thereof, the Lender may
exercise any other right, power or remedy as may be provided
herein, in the Note, or in any other Loan Document, or as may be
provided at law or in equity, including, without limitation, the
right to recover judgment against the Borrower for any amount due
either before, during or after any proceedings for the
enforcement of any security or any realization upon any security.
SECTION 6.4 Enforcement and Waiver by the Lender. The
Lender shall have the right at all times to enforce the
provisions of this Agreement and all Loan Documents in strict
accordance with the terms hereof and thereof, notwithstanding any
conduct or custom on the part of the Lender in refraining from so
doing at any time and for any reason, unless the Lender shall
have waived such enforcement in writing in respect of a
particular instance. The failure of the Lender at any time to
enforce its rights under such provisions shall not be construed
as having created a custom or course of dealing in any way
contrary to the specific provisions of this Agreement or the
other Loan Documents, or as having in any way modified or waived
the same. All rights, powers and remedies of the Lender are
cumulative and concurrent and the exercise of one right, power or
remedy shall not be deemed a waiver or release of any other
right, power or remedy.
ARTICLE VII
GENERAL PROVISIONS
SECTION 7.1 Amendments. No amendment or waiver of any
provision of this Agreement or the Note, nor consent to any
departure by the Borrower therefrom, shall in any event be
effective unless the same shall be in writing and signed by the
Lender, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which
given.
SECTION 7.2 Notices. All notices and other communications
provided for hereunder shall be in writing (including telegraphic
communication), except as provided in Section 2.3(a) hereof, and
mailed and sent by facsimile transmission or delivered:
If to the Borrower, CPT Holdings, Inc.
to its address at: 1430 Broadway
13th Floor
New York, New York 10018
Attention: William Remley, President
If to the Lender, Trinity Investment Corp.
to its address at: 1430 Broadway
13th Floor
New York, New York 10018
Attention: William Remley, President
or, as to each party, to such other address as shall be
designated by such party hereto in a written notice to the other
parties hereto. Each such notice or other communication shall be
deemed delivered when delivered in person, or upon receipt when
sent by certified mail, postage prepaid, return receipt
requested, and sent by facsimile transmission, or on the next
business day after delivery to a courier service that guarantees
delivery on the next business day if the conditions to the
courier's guarantee are complied with.
SECTION 7.3 No Waiver; Remedies. No failure on the part of
the Lender to exercise, and no delay in exercising, any right
hereunder or under the Note or any other document, instrument or
agreement shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder or under the Note
preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and
not exclusive of any remedies provided by law.
SECTION 7.4 Costs, Expenses, Fees, Taxes and Indemni-
fication.
(a) The Borrower agrees to pay on demand (i) all costs
and expenses incurred by the Lender in connection with the
preparation, execution and delivery of the Loan Documents and
other documents to be delivered hereunder or thereunder and the
consummation of the transactions contemplated hereby and thereby,
any amendments to any such agreements or documents, and any
consents or waivers of any of the provisions of any such
agreements or documents, including, without limitation,
reasonable legal fees and out-of-pocket expenses with respect
thereto, and (ii) all costs and expenses, if any (including
counsel fees and expenses), incurred by the Lender in connection
with the enforcement of the Loan Documents and the other
documents to be delivered hereunder or thereunder. In addition,
the Borrower shall pay or cause to be paid any and all filing
fees and taxes payable or determined to be payable in connection
with the execution, delivery, filing, recording and
administration of the Loan Documents and the other documents to
be delivered hereunder and thereunder, and agrees to indemnify
and hold the Lender harmless from and against any and all
liabilities with respect to or resulting from any delay in paying
or omission to pay such filing fees and taxes.
(b) The Borrower hereby indemnifies and holds harmless
the Lender and its directors, officers, employees, agents,
counsel, subsidiaries and affiliates (the "Indemnified Persons")
from and against any and all losses, liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be
imposed on or incurred by any Indemnified Person in any way
relating to or arising out of the Loan Documents, or any of them,
or any of the transactions contemplated hereby or thereby;
provided, however, that the Borrower shall not be liable to any
Indemnified Person if there is a judicial determination that such
losses, liabilities, obligations, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulted
solely from the gross negligence or willful misconduct of such
Indemnified Person. The Borrower releases the Lender from, and
hereby waives, all claims for loss or damage caused by any act of
omission on the part of any Indemnified Person, except gross
negligence or willful misconduct.
SECTION 7.5 Right of Set-Off. Upon the occurrence and
during the continuance of any Event of Default, the Lender is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set-off and apply any
indebtedness at any time owing by the Lender to or for the credit
or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under any
Loan Document, irrespective of whether or not the Lender shall
have made any demand under any Loan Document and although such
obligations may be unmatured. The Lender agrees promptly to
notify the Borrower after any such set-off and application made
by the Lender; provided, however, that the failure to give such
notice shall not affect the validity of such set-off and
application. The rights of the Lender under this Section 7.5 are
in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Lender may have.
SECTION 7.6 Entire Agreement; Binding Effect. This
Agreement, together with the other Loan Documents, represent the
entire agreement among the parties hereto with respect to the
subject matter hereof and shall be binding upon and inure to the
benefit of the Borrower, the Lender and their respective
successors and permitted assigns.
SECTION 7.7 Assignments and Participation.
(a) The Borrower shall not have the right to assign
its rights hereunder or any interest herein without the prior
written consent of the Lender.
(b) The Lender may at any time assign to any Person
all or any portion of its rights and obligations under this
Agreement and the Note, and such Person shall assume such rights
and obligations; provided, however, that each such assignment
shall be of a constant, and not a varying, percentage of all of
the Lender's rights and obligations under this Agreement. Upon
the execution and delivery of such assignments, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to
such assignment, have the rights and obligations of the Lender
hereunder and (y) the Lender shall, to the extent that rights and
obligations hereunder have been assigned by it pursuant to such
assignment, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an
assignment of all of the remaining portion of the Lender's rights
and obligations under this Agreement, the Lender shall cease to
be a party hereto).
(c) The Borrower may, for all purposes of this
Agreement, treat the Lender as the holder of the Note (and owner
of the Credit Advance evidenced thereby) until written notice of
assignment, transfer or participation shall have been received by
it.
(d) The Lender shall maintain at its address referred
to in Section 7.2 hereof a copy of each assignment delivered to
and accepted by it and a register (the "Register") for the
recordation of the names and addresses of the assignees hereunder
of the Lender and the share of the principal amount of the Credit
Advance owing to each such assignee from time to time. The
entries in the Register shall be conclusive and binding for all
purposes, in the absence of manifest error, and the Borrower and
the Lender may treat each Person whose name is recorded in the
Register as if it were the Lender for all purposes of this
Agreement. The Register shall be available for inspection by the
Borrower at any reasonable time and from time to time upon
reasonable prior notice.
(e) Within five (5) business days after receipt of a
notice of assignment pursuant to this Section 7.7, the Borrower,
at its own expense, shall execute and deliver to the Lender in
exchange for the surrendered Note a new Note to the order of the
appropriate assignee specified by the Lender in an amount equal
to the share of the Commitment assumed by such assignee and, if
the Lender has retained a portion of the Commitment hereunder, a
new Note to the order of the Lender in an amount equal to the
share of the Commitment retained by it hereunder. Such new Notes
shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note, shall be dated the
effective date of such assignment and shall otherwise be in form
and substance reasonably acceptable to the Borrower and the
Lender. Cancelled Notes shall be returned to the Borrower.
SECTION 7.8 Governing Law. This Agreement and the Note
shall be governed by, and construed in accordance with, the laws
of the State of New York, without regard to the principles
thereof relating to conflict of laws. Any legal action or
proceeding with respect to this Agreement, the Note or any Loan
Document or any document related hereto or thereto instituted by
the Borrower shall be brought by the Borrower in the courts of
the State of New York, or of the United States of America for the
State of New York, and in no other courts, and by execution and
delivery of this Agreement, the Borrower hereby accepts for
itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The
Borrower hereby irrevocably and unconditionally (i) waives any
objection, including without limitation, any objection to the
laying of venue or based on the grounds of forum non conveniens,
which it now or hereafter may have to the bringing of any action
or proceeding in such respective jurisdictions; (ii) waives the
right to object that any such court does not have jurisdiction
over it; and (iii) consents to the service of process in any such
action or proceeding by the mailing of copies of such process to
it by certified mail at the address indicated for notices in
Section 7.2 of this Agreement. Nothing in this Section 7.8 shall
affect the Lender's right to serve process in any other manner
permitted by law or to bring proceedings against the Borrower in
any other court having jurisdiction.
SECTION 7.9 Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all
of which when taken together shall constitute one and the same
agreement.
SECTION 7.10 Headings. The headings contained in this
Agreement are and shall be without substantive meaning or content
of any kind whatsoever and are not a part of the agreement
between the parties hereto.
SECTION 7.11 Termination. This Agreement shall terminate
when all amounts due hereunder or under the Note or any of the
other Loan Documents shall have been paid in full and all other
Obligations shall have been fully paid or performed.
SECTION 7.12 Jury Trial Waiver. THE BORROWER WAIVES ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE
LENDER AND THE BORROWER ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN
THE BORROWER AND THE LENDER IN CONNECTION WITH THIS AGREEMENT OR
ANY Note OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED
THERETO.
Section 7.13 Releases. Upon the Closing Date or as soon
thereafter as the Outstanding Obligations are paid in full, the
Debenture and the related Credit Agreement entered into by the
parties hereto, shall be terminated and of no further force or
effect and the Lender shall deliver to the Borrower the
Debenture marked "Cancelled and Paid-in-Full" and, release
promptly all collateral heretofore securing such debenture and/or
Outstanding Obligations.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, effective for all purposes and in all respects
as of the date first above written.
BORROWER:
CPT HOLDINGS, INC.,
a Minnesota Corporation
By: /s/ William L. Remley
Name: William L. Remley
Title: President
LENDER:
TRINITY INVESTMENT CORP.,
a Delaware corporation
By: /s/ William L. Remley
Name: William L. Remley
Title: President
Exhibit 6.3
PROMISSORY NOTE (LINE OF CREDIT)
$1,000,000.00 Date: February 1, 1996
FOR VALUE RECEIVED, the undersigned, CPT HOLDINGS, INC.,
a Minnesota corporation ("Maker"), hereby promises to pay to the
order of TRINITY INVESTMENT CORP., a Delaware corporation ("Pay-
ee"), the principal sum of ONE MILLION DOLLARS ($1,000,000.00), or
so much thereof as may be advanced and/or readvanced hereunder and
remain unpaid, together with accrued interest at the rate hereinaf-
ter set forth, on the unpaid principal balance hereof from time to
time outstanding (the "Principal Balance"), at the rates applicable
from time to time before maturity, as set forth in this Promissory
Note (this "Note").
1. Revolving Loan. This Note evidences a revolving
loan. Advances and readvances shall be made hereunder as provided
in that certain Line of Credit Agreement dated as of February 1,
1996 between Maker and Payee (the "Line of Credit Agreement"). The
entire unpaid principal balance, together with accrued and unpaid
interest thereon, and all other obligations of Maker hereunder, if
not sooner paid, shall be due and payable in full on December 15,
2002 (the "Maturity Date").
2. Rate of Interest. This Note shall bear interest
(computed on the basis of the actual number of days elapsed over a
365-day year) until the Maturity Date on the Principal Balance at
a rate equal to thirteen percent (13%) [the "Interest Rate"].
Such interest payments shall be computed on the basis of a year
with three hundred sixty-five (365) days.
3. Payments. Interest only, commencing as of the date
hereof and calculated at the Interest Rate on the Principal
Balance, shall be due and payable semi-annually on the first (1st)
day of each April and October, respectively, during the term of
this Note commencing on the first (1st) day of April, 1996, except
that the last such payment of interest only shall be due and
payable on the Maturity Date, and on each such interest payment
date there shall be due and payable all interest accrued to that
date; provided, however, that Payee shall have the absolute right
(but not the obligation), in its sole discretion, to add to the
Principal Balance at any time or from time to time any accrued
interest then due and payable hereunder and/or that certain
Debenture dated March 31, 1995 and treat the same as an advance
under this Note, without notice to or demand upon Maker. The
entire Principal Balance hereof, and all accrued but unpaid
interest, if any, shall be due and payable in full on the Maturity
Date. Payments made on account hereof shall, at Payee's option, be
applied first (1st) to the payment of any late charges accrued and
due and other costs and expenses, if any, then to accrued and
unpaid interest, and the remainder of each payment shall be applied
to unpaid principal.
Maker may prepay the Principal Balance or any part
thereof, with accrued interest to the date of such prepayment, at
any time, without penalty or premium. Prepayments shall not
postpone or reduce any regular payments of interest, but shall be
credited to installments of principal, if any, in their order of
maturity.
4. Guaranty. Maker hereby unconditionally guarantees
the due performance and prompt payment, whether on the Maturity
Date or by acceleration or otherwise, of the full principal balance
of this Note, together with interest calculated as aforesaid, and
all reasonable legal or other costs incurred by Payee in the
enforcement thereof against Maker.
5. Event of Default. It is expressly agreed that time
is of the essence for all purposes of this Note. Either (i) the
failure of Maker to make any payment of the interest or the
Principal Balance on this Note as and when due and payable which
failure is not fully cured within ten (10) days after written
notice thereof from Payee; (ii) the making by Maker of a general
assignment for the benefit of creditors; (iii) the appointment of
a custodian for Maker; (iv) the commencement of any proceeding by
Maker for relief under any Federal bankruptcy law or any state
insolvency or similar law; (v) the commencement of any proceeding
against Maker under any Federal bankruptcy law or any state
insolvency or similar law, which proceeding is not dismissed within
sixty (60) days; or (vi) any Event of Default under the Line of
Credit Agreement, shall constitute an event of default hereunder
(each, an "Event of Default"). Upon the occurrence of an Event of
Default, or at any time thereafter during the continuance of any
such Event of Default, Payee may, with or without notice to Maker,
declare this Note to be immediately due and payable, as to the
unpaid Principal Balance, any accrued interest, late charges and
any expenses, costs and/or damages provided for herein, without
presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived.
6. Outstanding Principal Amount. The face amount of
this Note is the principal sum of One Million Dollars
($1,000,000.00). Each advance and readvance by Payee hereunder
shall be evidenced by this Note, and any repayments of principal by
Maker shall be credited against the Principal Balance due on this
Note, but shall not extinguish this Note in whole or in part. The
Principal Balance due on this Note may increase and decrease as
advances, readvances and payments are made hereunder, pursuant to
the Line of Credit Agreement (including amendments and supplements
thereto) between Maker and Payee hereof, and this Note shall
evidence all of the indebtedness of Maker hereunder from time to
time existing pursuant to said Line of Credit Agreement, including
readvances of sums already paid. The aggregate principal advances
and readvances under this Note may exceed the face amount hereof,
but the Principal Balance hereunder at any given time shall not
exceed the face amount hereof, it being understood and agreed that
Payee hereof does not intend to make any loans to Maker that are
not subject to the Line of Credit Agreement and that each and every
advance and readvance made at present or hereafter to Maker shall
be deemed to be an advance evidenced by this Note.
7. Waivers. Maker hereby waives demand, presentment
for payment, notice of dishonor, protest and notice of protest and
diligence in collection or bringing suit and agrees that Payee may
accept partial payment without discharging the obligations
evidenced hereby.
8. Attorneys' Fees and Costs; Waiver of Jury Trial.
Maker agrees to pay all reasonable attorneys' fees and costs
incurred by Payee in collecting or attempting to collect this Note,
whether by suit or otherwise. MAKER HEREBY EXPRESSLY WAIVES ANY
RIGHT TO A JURY TRIAL IN CONNECTION WITH ANY LEGAL ACTION BROUGHT
BY PAYEE TO COLLECT THIS NOTE.
9. Applicable Law; Assigns. This Note shall be
governed by, and construed in accordance with, the laws of the
State of New York. As used herein, Maker and Payee shall be deemed
to include their respective successors, legal representatives and
assigns, whether by voluntary action of the parties or by operation
of law.
10. Default Rate of Interest. After an Event of
Default, any late payment of interest or the Principal Balance
(whether on the Maturity Date or by acceleration of this Note as
provided in Section 5) shall bear interest from the due date of
such payment until paid at the eighteen percent (18%) per annum
(the "Default Rate of Interest").
11. Highest Lawful Rate. Anything herein to the
contrary notwithstanding, the obligations of Maker hereunder shall
be subject to the limitation that to the extent that contracting
for or receipt of interest at the Default Rate of Interest
hereunder would be contrary to provisions of any law applicable to
Payee limiting the highest rate of interest which may be lawfully
contracted for, charged or received by Payee, such amount which
would exceed the highest lawful rate shall be applied to the
reduction of the Principal Balance due hereunder and not to the
payment of interest at the Default Rate of Interest.
12. Notices. Any notice to the parties provided for in
this Note shall be given hand delivered, with receipt thereof, or
sent by certified or registered mail, return receipt requested, and
first-class postage prepaid, or by overnight courier, to the
address of the addressee party set forth in this paragraph 12,
unless notice of a change of address is given to all parties hereto
pursuant to the provisions of this paragraph 12. Notice shall be
deemed effective upon receipt. Notice shall be given to Maker at
the following address:
CPT Holdings, Inc.
c/o Mentmore Holdings Corp.
1430 Broadway, 13th Floor
New York, New York 10018
and to Payee at the following address:
Trinity Investment Corp.
c/o William L. Remley, President
1430 Broadway, 13th Floor
New York, New York 10018
IN WITNESS WHEREOF, the undersigned has executed, sealed
and delivered this Note, intending to be bound legally, as of the
date first above written.
MAKER:
WITNESS: CPT HOLDINGS, INC., a Minnesota
corporation
/s/ Gary R. Siegel By: /s/ William L. Remley (SEAL)
William L. Remley,
President
[Corporate Seal]
Exhibit 6.4
WARRANT PURCHASE AGREEMENT
THIS WARRANT PURCHASE AGREEMENT (this "Agreement") is made
as of February 1, 1996 by and between CPT HOLDINGS, INC., a
Minnesota corporation (the "Company"), and TRINITY INVESTMENT
CORP., a Delaware corporation ("Purchaser").
A. Pursuant to that certain Line of Credit Agreement dated
as of even date herewith between the Company and the Purchaser
(the "Credit Agreement"), the Company has agreed to issue a
Common Stock Purchase Warrant substantially in the form of
Exhibit A hereto (the "Warrant") as additional consideration and
as an inducement to Purchaser to make the loan to the Company and
its affiliated entities as provided in the Credit Agreement.
B. The parties hereto desire to set forth their agreements
and understandings with respect thereto.
NOW, THEREFORE, in consideration of the foregoing, of the
mutual promises hereinafter set forth and of other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending legally to be
bound, hereby agree as follows:
ARTICLE 1
AUTHORIZATION OF WARRANT
The Company represents and warrants to Purchaser as follows:
1.1 Capitalization of Company.
(a) The authorized capital stock of the Company, on
and as of the Closing Date (as defined in Article 3 hereof), and
a description of the Common Stock and of the voting powers,
rights and privileges thereof are stated in the Company's
Articles of Incorporation (the "Articles of Incorporation"). A
copy of the Articles of Incorporation in effect on the Closing
Date has previously been delivered to Purchaser.
(b) As of the Closing Date the number of issued and
outstanding shares of the Company's Common Stock is one million
five hundred ten thousand eighty-four (1,510,084).
1.2 Authorization of Warrant. The Company has duly and
properly authorized the issuance of the Warrant and the three
hundred thousand (300,000) shares of Common Stock issuable by the
Company upon exercise of the Warrant. As used herein, "Warrant
Shares" shall mean the shares of Common Stock issuable upon
exercise of the Warrant and "Securities" shall mean the Warrant
and the Warrant Shares.
1.3 Other Definitions. Certain terms and expressions used
in this Agreement are defined in Article 8 hereof.
ARTICLE 2
ISSUANCE OF WARRANT
2.1 At the Closing (as defined in Article 3 hereof), the
Company shall issue the Warrant to Purchaser.
ARTICLE 3
THE CLOSING
3.1 The closing under this Agreement (the "Closing") will
take place at the offices of the Corporation as of the date
hereof, or at such other time and on such other date as may be
mutually agreed upon in writing by Purchaser and the Company.
The date of the Closing is herein called the "Closing Date".
ARTICLE 4
ADDITIONAL REPRESENTATIONS OF THE COMPANY
4.1 The Company hereby further represents and warrants to
Purchaser, on and as of the Closing Date, the truth and accuracy
of the representations of the Company contained in the Credit
Agreement.
ARTICLE 5
REPRESENTATIONS OF PURCHASER
5.1 Purchaser represents and warrants to the Company that:
(a) Purchaser is acquiring the Warrant from the
Company in accordance with the terms hereof for Purchaser's own
account without a view to any distribution thereof in violation
of the Securities Act of 1933, as amended (the "Securities Act"),
but, subject, nevertheless, to any requirement of law that the
disposition of Purchaser's property shall at all times be within
Purchaser's control. Purchaser has been informed and understands
that the Securities have not been registered pursuant to the
provisions of Section 5 of the Securities Act and must be held
indefinitely unless such Securities are subsequently registered
under the provisions of the Securities Act or an exemption from
such registration is available. Purchaser also has been informed
of, and understands, the restrictions on any exercise of the
Warrant as set forth therein.
(b) Purchaser has been furnished with, or has had
access to, all information concerning the Company, and has had an
opportunity to ask questions of officers of the Company, as
Purchaser has deemed necessary or appropriate in order to enable
it to make an informed investment decision with respect to the
acquisition of the Warrant. Purchaser has such knowledge and
experience in financial matters that it is capable of evaluating
the merits and risks of its investment in the Warrant. Pur-
chaser's financial condition is such that it is able to bear all
economic risks of investment in the Securities, including a
complete loss of its investment therein and the risks of holding
the Securities for an indefinite period of time. Purchaser also
acknowledges that there exists no market for the Securities at
this time.
(c) Purchaser also acknowledges that the Company is
not under any obligation to register or to cause any person to
register any of the Securities under the Securities Act, to
remain a reporting company under the Securities Exchange Act of
1934, as amended (the "Securities Exchange Act"), or otherwise to
make public the financial and other information required to
comply with the requirements of, or make available to Purchaser,
any exemption from registration under the Securities Act.
(d) Each stock certificate or instrument representing
or evidencing any Securities shall bear a legend in or substan-
tially in the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. IT MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO SUCH SECURITY OR
AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
(e) The exercise of the Warrant by Purchaser does not
and will not violate or contravene the charter documents or
bylaws of Purchaser or any law or regulation or any judgment,
decree or order of any governmental authority applicable to
Purchaser. Purchaser will deliver to the Company upon exercise
of the Warrant a written statement of such Purchaser stating that
Purchaser is legally entitled to exercise its rights under the
Warrant to purchase securities of the Company and that such
purchase will not violate or contravene any law or regulation or
any judgment, decree or order of any governmental authority
applicable to Purchaser.
ARTICLE 6
COVENANTS OF THE COMPANY
The Company hereby covenants with Holder (as defined in
Article 8 hereof) that, from the Closing Date, except as
otherwise expressly permitted or provided herein:
6.1 Financial Information. The Company will furnish or
cause to be furnished to Holder, with reasonable promptness, all
such information, reports and statements respecting the business,
assets, financial condition and results of operations of the
Company and its Subsidiaries (as hereafter defined) as Holder may
from time to time reasonably request.
6.2 Inspection; Visitation Rights.
(a) The Company will permit any of the duly authorized
representatives of Holder to visit and inspect any of the assets
or properties now or at any time hereafter owned or held under
lease by the Company or by any of its Subsidiaries, and, on the
request of Holder, to examine the books of account, records,
reports and other papers (and to make copies thereof and to take
extracts therefrom) of the Company or of any of its Subsidiaries,
during normal business hours and at such times as Holder may
reasonably request, but not to exceed four (4) times per year.
Any information concerning the Company or any of its Subsidiaries
obtained by Holder in connection with any such visit, inspection
or examination will be kept confidential by Holder and, after
Holder no longer has an economic interest in the Company, will be
promptly destroyed or returned to the Company at the request of
the Company.
(b) The Company will, subject always to the terms
contained in Section 6.3 hereof, allow any person designated by
Holder to attend all meetings of the Board of Directors and all
meetings of the stockholders of the Company and its Subsidiaries,
in all cases as a non-voting observer. Any information
concerning the Company or any of its Subsidiaries obtained by
Holder in connection with any such meeting of the Board of
Directors will be kept confidential by Holder until such
information becomes publicly disseminated.
6.3 Reservation of Shares. The Company shall, at all times
that any portion of the Warrant shall remain outstanding and
unexercised, keep sufficient shares of its Common Stock reserved
for issuance to Purchaser upon exercise of such portion of the
Warrant.
ARTICLE 7
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
7.1 Survival of Representations. The representations and
warranties of the Company, Purchaser and Holder contained in this
Agreement, or any agreement, instrument or document delivered
pursuant to any of the provisions of this Agreement, shall sur-
vive the execution and delivery of this Agreement, any examina-
tion or investigation conducted by or on behalf of the Company or
Purchaser, and the Closing hereunder.
7.2 Indemnification for Misrepresentations. The Company
agrees to indemnify and hold Purchaser harmless from and against,
and to pay to Purchaser, on demand by Purchaser from time to
time, the full amount of any loss, claim, damage, liability, cost
or expense (including reasonable attorneys' fees) resulting to
Purchaser from any false, incorrect or misleading representation
or warranty of the Company contained in this Agreement, or any
agreement, instrument or document delivered by the Company to
Purchaser pursuant to any of the provisions of this Agreement.
7.3 Expenses. The Company agrees to pay to Holder, on
demand by Holder at any time and as often as the occasion there-
for may require, all reasonable out-of-pocket costs and expenses
which shall be incurred or sustained by Holder at any time in
connection with any modifications or amendments to or consents,
approvals or waivers requested by the Company under this Agree-
ment or the Warrant.
ARTICLE 8
CERTAIN DEFINED TERMS
8.1 As used herein, the following terms shall have the
respective meanings assigned to them in this Article 8:
(a) "Common Stock" shall mean Common Stock of the Company,
including any securities issued in exchange for or in replacement
of any such Common Stock, in the event of the recapitalization of
the Company.
(b) "Holder" shall mean Purchaser or any Permitted Trans-
feree who shall, from time to time, be the registered holder of
the Warrant or, in the event that the Warrant has been exercised
in full and all of the Warrant Shares have been issued there-
under, the lawful holder of the Warrant immediately prior to such
final exercise.
(c) "Permitted Transferee" shall mean, in relation to
Holder:
(i) any "Affiliated Person," as that term is
defined in Section 2 of the Investment Company Act of 1940, as
amended, of such Holder, to which the Warrant is transferred or
assigned (but not sold); or
(ii) any person who shall acquire the Warrant from
the Holder in a transaction which does not constitute a public
offering and for which the Company has received an opinion of
counsel satisfactory to the Company that such transaction is
exempt from registration under the Securities Act. In addition,
such transaction shall not violate or contravene the terms of
Section 5.1 hereof.
(d) "Subsidiary" or "Subsidiaries" shall mean, in relation
to the Company at any particular time, any other corporation(s)
at least fifty percent (50%) of the outstanding voting shares in
the capital of which shall be owned or controlled (whether
directly or indirectly) by the Company and/or by any one or more
of the Company's other Subsidiaries.
ARTICLE 9
MISCELLANEOUS
9.1 Notices.
(a) All notices and other communications pursuant to
this Agreement shall be in writing, either delivered in hand or
sent by first-class mail, postage prepaid, or sent by telecopier,
facsimile machine or telegraph, addressed as follows:
(i) if to the Company, at 1430 Broadway, 13th
Floor, New York, New York, 10018, Attention: President or Vice
President, fax no. (212) 391-1393, or at such other address as
shall have been furnished to Holder in writing by the Company; or
(ii) if to Holder, at c/o Mentmore Holdings Corp.,
at 1430 Broadway, 13th Floor, New York, New York 10018, facsimile
no. (212) 391-1393, or at such other address as shall have been
furnished to the Company by such Holder in writing.
(b) Any notice or other communication pursuant to this
Agreement shall be deemed to have been duly given or made and to
have become effective (i) when delivered in hand to the party to
which it was directed, (ii) if sent by telecopier, facsimile
machine or telegraph and properly addressed in accordance with
the foregoing provisions of this Section 9.1, when received by
the addressee, or (iii) if sent by first-class mail, postage
prepaid, and properly addressed in accordance with the foregoing
provisions of this Section 9.1, (A) when received by the
addressee, or (B) on the third business day following the day of
dispatch thereof, whichever of (A) or (B) shall occur earlier.
9.2 Governing Law. THIS AGREEMENT IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF
MINNESOTA.
9.3 Amendments and Waivers. Except as otherwise expressly
required by any other provisions of this Agreement, none of the
terms or provisions contained in this Agreement, and none of the
agreements, obligations or covenants of the Company contained in
this Agreement, may be amended, modified, supplemented, waived or
terminated unless (i) the Company shall execute an instrument in
writing agreeing or consenting to such amendment, modification,
supplement, waiver or termination, and (ii) the Company shall
receive the prior written consent of Holder therefor.
9.4 Proportional Adjustments. There are references in this
Agreement to a specific price per share of Common Stock or to a
specific number shares in the capital of the Company. The speci-
fic price per share and the specific number of shares so stated
are effective as of the Closing Date. The specific price per
share and the specific number of shares so stated shall (in each
case) be proportionally adjusted from time to time if (and on
each occasion that) there shall be effected by the Company any
stock dividend, stock split, subdivision of shares, combination
of shares, reclassification, recapitalization or other similar
corporate reorganization affecting the capital structure of the
Company. The exact amount and the effective date of each adjust-
ment effected pursuant to this Section 9.4 shall be determined in
good faith and on a reasonable basis by the Board of Directors of
the Company. The Company shall promptly notify Holder in writing
of each such adjustment.
9.5 Integration. The exhibits to this Agreement are inte-
gral parts of this Agreement and are hereby incorporated by
reference.
9.6 Rights and Obligations Several. The rights and obliga-
tions of each of the parties hereto shall be several (and not
joint), except as otherwise expressly provided by this Agreement.
9.7 No Waiver; Cumulative Remedies. No failure or delay on
the part of Holder in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any such right, power or remedy preclude
any other or further exercise thereof or the exercise of any
other right, power or remedy hereunder. The remedies herein
provided are cumulative and not exclusive of any remedies pro-
vided by law.
9.8 Entire Agreement. This Agreement, including the
exhibits hereto and the other documents referred to herein,
constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof and supersedes any prior
understandings or agreements concerning the subject matter
hereof.
9.9 Severability. The invalidity or unenforceability of
any provision hereof shall in no way affect the validity or
enforceability of any other provision.
9.10 Binding Effect. All of the covenants and agreements of
the Company contained in, and all of the rights granted by the
Company pursuant to, this Agreement, shall inure to the benefit
of Purchaser, including any Permitted Transferee of such
Purchaser. None of such covenants, agreements or rights shall be
assignable or transferable by Holder to any person except to a
person who is a Permitted Transferee of such Holder.
IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as of the day and year first above written.
COMPANY:
CPT HOLDINGS, INC.,
a Minnesota corporation
By: /s/ William L. Remley
Name: William L. Remley
Title: President
PURCHASER:
TRINITY INVESTMENT CORP.,
a Delaware corporation
By: /s/ William L. Remley
Name: William L. Remley
Title: President
Exhibit 6.5
NEITHER THIS SECURITY NOR THE SHARES ISSUABLE UPON EXERCISE
HEREOF HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR APPLICABLE STATE SECURITIES LAWS, AND NEITHER THIS
SECURITY NOR THE SHARES ISSUABLE UPON EXERCISE HEREOF MAY BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION AS TO SUCH SECURITY OR SECURITIES OR AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGIS-
TRATION IS NOT REQUIRED.
No. 3
CPT Holdings, Inc.
1430 Broadway
New York City, New York 10018
COMMON STOCK PURCHASE WARRANT
Dated as of February 1, 1996
Void after Warrant Expiration Date
300,000 Shares of Common Stock
THIS CERTIFIES that, in consideration of advances made
pursuant to that certain Line of Credit Agreement dated as of
February 1, 1996 between CPT HOLDINGS, INC., a Minnesota
corporation (the "Company"), and TRINITY INVESTMENT CORP., a
Delaware corporation (the "Original Holder"), which is good and
valuable consideration herefor, the Original Holder, or any
Permitted Transferee (as hereinafter defined), is entitled, at
any time during the Warrant Exercise Period (as hereinafter
defined), to subscribe for and purchase from the Company that
number of fully paid and non-assessable shares of the Company's
Common Stock, par value Five Cents ($0.05) per share, as shall be
equal to the Initial Warrant Number (as hereinafter defined) at
that price per share as shall be equal to the Initial Exercise
Price (as hereinafter defined); subject, however, to adjustment
both as to such number of shares and such price as hereinafter
set forth.
This Warrant has been issued by the Company to the Original
Holder under the terms of, and as provided and contemplated by,
that certain Warrant Purchase Agreement, dated as of February 1,
1996 (herein, as so amended and from time to time in effect,
called the "Purchase Agreement"), between the Company and the
Original Holder.
Copies of the Purchase Agreement are on file and available
for inspection at the offices of the Company in New York City,
New York or at such other office of the Company as the Company
shall designate by notice in writing to the registered holder
hereof at the address of such holder appearing on the books of
the Company.
This Warrant is subject to the following terms and
conditions:
1. Common Stock, Warrant Common Stock, and Other Defined
Terms.
1.1. For the purposes of this Warrant: (a) "Common
Stock" shall mean and include the Company's Common Stock author-
ized as at the date of this Warrant, and shall include also any
other capital stock of the Company of any class or series which
shall be authorized at any time after the date of this Warrant
and issued in exchange for or in replacement of the Company's
Common Stock and which shall have the right to participate in the
distribution of earnings and assets of the Company without
limitation as to amount; (b) "Warrant Common Stock" shall mean
the Common Stock authorized as of the date of this Warrant and
issuable upon the exercise of this Warrant or any warrants
delivered in substitution or exchange herefor; (c) "Convertible
Securities" shall mean and include any securities of any kind
(including, without limitation, promissory notes) convertible
into or exchangeable for shares of Common Stock, and also any
options, warrants or other rights of any kind to purchase,
subscribe for or acquire (with or without consideration) any
shares of Common Stock or any Convertible Securities; and (d)
"Securities" shall mean Common Stock and Convertible Securities.
1.2. For all purposes of this Warrant, the following
terms shall have the respective meanings set forth below:
(a) "Exercise Price" shall mean the Initial
Exercise Price as the same shall be adjusted from time to time
pursuant to Section 6 and/or 7 hereof; provided, however, the
Exercise Price shall not be less than the then-current par value
per share of the Warrant Common Stock.
(b) "Holder" shall mean the Original Holder or
any Permitted Transferee who shall, from time to time, be the
registered holder of this Warrant.
(c) "Initial Exercise Price" shall mean Four
Dollars ($4.00) per share of Warrant Common Stock.
(d) "Initial Warrant Number" shall mean three
hundred thousand (300,000) shares of Warrant Common Stock.
(e) "Original Issue Date" shall mean the
effective date hereof.
(f) "Permitted Transferee" shall mean, in
relation to Holder:
(i) any "Affiliated Person," as that term
is defined in Section 2 of the Investment Company Act of 1940, as
amended, of such Holder to which this Warrant is transferred or
assigned (but not sold); or
(ii) any person who shall acquire this
Warrant from such Holder in a transaction which does not
constitute a public offering and for which the Company has
received an opinion of counsel satisfactory to the Company that
such transaction is exempt from registration under the Securities
Act of 1933, as amended (the "Securities Act"). In addition,
such transaction shall not violate or contravene the terms of
Section 5.1 of the Purchase Agreement.
(g) "Warrant Exercise Period" shall mean the
period beginning one hundred eighty (180) days after the date of
this Warrant and ending on the Warrant Expiration Date.
(h) "Warrant Expiration Date" shall mean 6:00
p.m. local time in New York City, New York on January 31, 2006.
(i) "Warrant Number" shall mean the Initial
Warrant Number as the same shall be adjusted from time to time
pursuant to Article 6 and/or 7 hereof.
2. Exercise of Warrant. The purchase rights represented
by this Warrant are exercisable by Holder, in whole or in part
(but not as to any fractional share of Warrant Common Stock), at
any time or from time to time during the Warrant Exercise Period
until the Warrant Expiration Date, by the surrender of this
Warrant, the Subscription Form annexed hereto (duly executed) and
the Investment Letter (as hereinafter defined) at the office of
the Company in New York City, New York (or at such other office
of the Company as the Company shall designate by notice in
writing to the Holder hereof at the address of such Holder
appearing on the books of the Company), and upon payment to the
Company of the aggregate Exercise Price for the shares thereby
purchased; provided, however, that the Company can unilaterally
postpone the effective date of exercise of any part of this
Warrant (but not beyond the Warrant Expiration Date) for a
reasonable period of time, not to exceed ninety (90) days, if the
Company has been advised by legal counsel that (i) there is then
available no exemption from the registration requirements of the
Securities Act and applicable state securities laws for the
issuance and sale of the Warrant Common Stock if there is in
effect no current registration statement with respect to the
Warrant Common Stock or (ii) the Company would be required to
disclose a material transaction or other material fact to the
Holder, and the Company determines reasonably and in good faith
that such disclosure would have a material adverse effect on the
Company. In the event that the effective date of exercise of any
part of this Warrant is postponed by the Company pursuant to this
Section 2, (x) the Company promptly shall so notify the Holder
and deposit the payment of the Exercise Price tendered by the
Holder in an escrow account for the benefit of Holder, (y) if the
postponement is based on clause (ii) of the foregoing sentence,
the Company shall verify the Holder's intention to proceed with
such exercise following public disclosure of the material
transaction or other material fact that gave rise to such
postponement and (z) the Company shall pay or distribute to the
Holder any dividend, distribution or other amount that the Holder
would have received if the exercise had not been postponed
pursuant hereto.
The Company agrees that, if at the time of such surrender
and purchase (or the expiration of any postponement of the
effective date of exercise pursuant hereto) Holder shall be
entitled to exercise this Warrant, the shares so purchased shall
be and be deemed to be issued to Holder as the record owner of
such shares as of the close of business of the Company on the
effective date on which this Warrant shall have been exercised as
aforesaid.
The Company covenants that all shares of Warrant Common
Stock which may be issued upon the exercise of this Warrant will,
upon exercise of the rights represented by this Warrant, be fully
paid and non-assessable and free from all taxes, liens and
charges in respect of the issue thereof.
The certificates for the shares of Warrant Common Stock so
purchased shall be delivered to Holder within a reasonable time,
not exceeding thirty (30) days, after the date on which the
rights represented by this Warrant shall have been so exercised
(or the expiration of any postponement of the effective date of
exercise pursuant hereto), and shall bear the following legend,
if applicable:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS. IT MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO SUCH SECURITY OR
AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED."
In the event of the purchase, at any time prior to the
Warrant Expiration Date, of less than all of the shares pur-
chasable hereunder, the Company will cancel this Warrant upon
surrender thereof, and will forthwith execute and deliver to
Holder a new warrant of like tenor and date for the balance of
the shares of Warrant Common Stock purchasable hereunder. Unless
such exercise is made in connection with a public offering of the
Company's Common Stock, including such shares of Warrant Common
Stock, Holder will deliver to the Company a letter (the
"Investment Letter") expressing Holder's intention to purchase
the shares of Warrant Common Stock for investment purposes only
and not for distribution and verifying that Holder (i) has been
furnished with, or has had access to, all information concerning
the Company, and has had an opportunity to ask questions of
officers of the Company, as Holder has deemed necessary or
appropriate in order to enable it to make an informed investment
decision with respect to such exercise of this Warrant, (ii) has
such knowledge and experience in financial matters that it is
capable of evaluating the merits and risks of its purchase of the
Warrant Common Stock upon exercise of this Warrant and (iii) is
able to bear the economic risks of investment in the Warrant
Common Stock, including a complete loss of its investment therein
and the risks of holding such shares for an indefinite period of
time.
Payment of the applicable Exercise Price may be made (a) by
cash or (b) by good check payable to the Company.
Any other provisions of this Warrant to the contrary not-
withstanding, neither the Original Holder nor any Permitted
Transferee shall be entitled to exercise the rights under this
Warrant to purchase securities of the Company if, as a result of
such purchase, Holder and all affiliates of such Holder, taken
together, would own, control or have power to vote securities of
the Company in violation or contravention of any law or regula-
tion or any judgment, decree or order of any governmental author-
ity then applicable to such Holder and its affiliates. For the
purposes of this paragraph, a written statement of the Holder
delivered to the Company upon surrender of this Warrant, to the
effect that the Holder is legally entitled to exercise its rights
under this Warrant to purchase securities of the Company and that
such purchase will not violate or contravene any law or
regulation or any judgment, decree or order of any governmental
authority then applicable to the Holder and its affiliates, shall
be conclusive and binding upon the Company and shall absolutely
obligate and bind the Company to deliver, in accordance with the
other terms and provisions hereof, certificates or other appro-
priate instruments representing the securities so purchased.
3. No Fractional Shares or Scrip. No fractional shares or
scrip representing fractional shares shall be issued upon the
exercise of this Warrant or any portion thereof. With respect to
any fraction of a share called for upon the exercise of this
Warrant or any portion thereof, an amount equal to such fraction
multiplied by the then current value of a share of Warrant Common
Stock [as determined in good faith by the Board of Directors of
the Company (the "Board")] shall be paid to Holder in cash by the
Company.
4. Charges, Taxes and Expenses. Issuance of certificates
for shares of Warrant Common Stock upon the exercise of this
Warrant or any portion thereof shall be made without charge to
Holder for any issue or transfer taxes or any other incidental
expenses in respect of the issuance of such certificates, all of
which taxes and expenses shall be paid by the Company, and such
certificates shall be issued in the name of Holder.
5. Certain Obligations of the Company. The Company will
from time to time, in accordance with the laws of its state of
incorporation, take action to increase the authorized amount of
its Warrant Common Stock if at any time the number of shares of
such Warrant Common Stock authorized but remaining unissued and
unreserved for other purposes shall be insufficient to permit the
exercise of this Warrant.
The Company covenants that it will at all times reserve and
keep available out of its authorized and unissued Common Stock,
solely for the purpose of issue upon exercise of the purchase
rights evidenced by this Warrant, the number of shares of Warrant
Common Stock purchasable and deliverable hereunder.
NOT LESS THAN SIXTY (60) AND NOT MORE THAN ONE HUNDRED EIGHTY
(180) DAYS PRIOR TO THE WARRANT EXPIRATION DATE, THE COMPANY
SHALL SEND TO THE REGISTERED HOLDER HEREOF A WRITTEN NOTICE WHICH
SHALL REFER TO THIS WARRANT AND STATE THE WARRANT EXPIRATION
DATE. UPON REQUEST OF HOLDER, THE COMPANY SHALL PROMPTLY PROVIDE
TO HOLDER A WRITTEN NOTICE SPECIFYING (1) THE APPLICABLE EXERCISE
PRICE AT THE DATE OF SUCH NOTICE AND (2) THE NUMBER OF SHARES
WHICH CAN BE PURCHASED HEREUNDER AT THE DATE OF SUCH NOTICE.
The Company further covenants that it will, at its expense,
prior to the issuance of any shares of Warrant Common Stock upon
exercise of this Warrant, procure the listing on all stock
exchanges (if any) on which the Common Stock is then listed of
all of said shares of Warrant Common Stock.
The Company will not, by amendment of its charter or through
reorganization, consolidation, merger, dissolution, issuance of
capital stock or sale of treasury stock (otherwise than upon
exercise of this Warrant) or sale of assets, or by any other
voluntary act or deed, avoid or seek to avoid the material per-
formance or observance of any of the covenants, stipulations or
conditions in this Warrant to be observed or performed by the
Company. The Company will at all times in good faith assist,
insofar as it is able, in the carrying out of all of the provi-
sions of this Warrant in a reasonable manner and in the taking of
all other action which may be necessary in order to protect the
rights of Holder against dilution.
The Company will maintain an office where presentations and
demands to or upon the Company in respect of this Warrant may be
made. The Company will give notice in writing to Holder, at the
address of Holder appearing on the books of the Company, of each
change in the location of such office.
6. Adjustment of Exercise Price and Warrant Number. The
Exercise Price and the Warrant Number shall be subject to adjust-
ment from time to time at any time after the Original Issue Date
as follows:
6.1. If (and on each occasion that) the Company
shall, at any time after the Original Issue Date, (a) issue any
shares of Common Stock as a dividend or distribution, or (b)
issue any shares of Common Stock in subdivision of outstanding
shares of Common Stock by reclassification or otherwise, or (c)
combine outstanding shares of Common Stock by reclassification or
otherwise, then (i) the then-current Exercise Price shall be
adjusted to a price determined by dividing (x) the number of
shares of Common Stock outstanding immediately prior to such
dividend, subdivision or combination, multiplied by the then
current Exercise Price, by (y) the total number of shares of
Common Stock outstanding immediately after such issue, and the
resulting quotient shall be the adjusted Exercise Price per
share; and (ii) the then-current Warrant Number shall be adjusted
to a number determined by dividing (x) the total number of shares
of Common Stock outstanding immediately after such dividend,
subdivision or combination, multiplied by the then-current
Warrant Number, by (y) the number of shares of Common Stock
outstanding immediately prior to such issue, and the resulting
quotient shall be the adjusted Warrant Number.
6.2. In case the Company shall, at any time after the
Original Issue Date, declare a dividend or make a distribution
upon the Common Stock payable otherwise than in Common Stock,
then thereafter Holder, upon the exercise of any of the rights
represented by this Warrant, will be entitled to receive the
number of shares of Warrant Common Stock being purchased upon
such exercise and, in addition and without further payment, the
cash, stock or other securities and other property which Holder
would have received by way of dividends and distributions (other-
wise than in Common Stock) if such Holder (a) had exercised this
Warrant immediately prior to the declaration of such dividend or
the making of such distribution so as to be entitled thereto, and
(b) had retained all dividends in stock or securities payable in
respect of such Common Stock or in respect of any stock or
securities paid as dividends and distributions and originating
directly or indirectly from such Common Stock.
7. Sale of Shares Below Exercise Price.
7.1. If at any time or from time to time after the
Original Issue Date, the Company shall issue or sell Additional
Shares of Common Stock (as hereinafter defined), other than as a
dividend or other distribution on any class of stock and other
than upon a subdivision or combination of shares of Common Stock
as provided in Section 6.1 hereof, for a consideration per share
less than the then-existing Exercise Price, then and in each case
(a) the then-current Exercise Price shall be reduced, as of the
opening of business on the date of such issue or sale, to a price
determined by multiplying that Exercise Price by a fraction (i)
the numerator of which shall be (A) the number of shares of
Common Stock outstanding immediately prior to such issue or sale,
plus (B) the number of shares of Common Stock that the aggregate
consideration received by the Company for the total number of
Additional Shares of Common Stock so issued would purchase at
such Exercise Price, and (ii) the denominator of which shall be
the number of shares of Common Stock outstanding immediately
prior to such issue or sale plus the number of such Additional
Shares of Common Stock so issued; and (b) the then-current
Warrant Number shall be adjusted to a number determined by (i)
multiplying (A) the then-current Exercise Price (before
adjustment for this latest issuance or sale of Additional Shares
of Common Stock which is triggering an adjustment hereunder by
(B) the then-current Warrant Number (before adjustment for this
latest issuance or sale of Additional Shares of Common Stock
which is triggering an adjustment hereunder) and (ii) dividing
such product by the Exercise Price in effect after adjustment for
this latest issuance or sale of Additional Shares of Common Stock
which is triggering an adjustment hereunder.
7.2. For the purpose of making any adjustment in the
Exercise Price or the Warrant Number as provided Section 7.1
hereof, the consideration received by the Company for any issue
or sale of securities shall: (a) to the extent it consists of
cash, be computed at the net amount of cash received by the
Company after deduction of any underwriting or similar
commissions, concessions, or compensation paid or allowed by the
Company in connection with such issue or sale; (b) to the extent
it consists of property other than cash, be computed at the fair
value of that property as determined in good faith by the
Company's Board of Directors; and (c) if Additional Shares of
Common Stock or Convertible Securities are issued or sold
together with other stock or securities or other assets of the
Company for a consideration that covers both, be computed as the
portion of the consideration so received that may be reasonably
determined in good faith by the Company's Board of Directors to
be allocable to such Additional Shares of Common Stock or
Convertible Securities.
7.3. For the purpose of the adjustment provided in
Section 7.1 hereof, if at any time or from time to time after the
Original Issue Date, the Company shall issue any Convertible
Securities, then, in each case, if the Effective Price (as
hereinafter defined) of such Convertible Securities shall be less
than the then existing Exercise Price, the Company shall be
deemed to have issued at the time of the issuance of such
Convertible Securities the maximum number of Additional Shares of
Common Stock issuable upon exercise or conversion thereof and to
have received as consideration for the issuance of such shares an
amount equal to the total amount of the consideration, if any,
received by the Company for the issuance of such Convertible
Securities, plus, in the case of options or rights, the minimum
amounts of consideration, if any, payable to the Company upon
exercise or conversion of such options or rights. For purposes
of this Section 7.3, "Effective Price" shall mean the quotient
determined by dividing the total of all of such consideration by
such maximum number of Additional Shares of Common Stock. No
further adjustment of the Exercise Price adjusted upon the
issuance of such Convertible Securities shall be made as result
of the actual issuance of Additional Shares of Common Stock on
the exercise or the conversion of any such Convertible
Securities. If any such rights or options or the conversion
privilege represented by any such Convertible Securities shall
expire without having been exercised, the Exercise Price and the
Warrant Number adjusted upon the issuance of such Convertible
Securities shall be readjusted to the Exercise Price and the
Warrant Number that would have been in effect had an adjustment
been made on the basis that the only Additional Shares of Common
Stock so issued were the Additional Shares of Common Stock, if
any, actually issued or sold on the exercise of such rights or
options or rights of conversion of such Convertible Securities,
and such Additional Shares of Common Stock, if any, were issued
or sold for the consideration actually received by the Company
upon such exercise, plus the consideration, if any, actually
received by the Company for the granting of all such rights or
options, whether or not exercised, plus the consideration
received for issuing or selling the Convertible Securities
actually converted plus the consideration, if any, actually
received by the Company on the conversion of such Convertible
Securities.
7.4. For the purpose of the adjustment provided for
in Section 7.1 hereof, if at any time or from time to time after
the Original Issue Date the Company shall issue any rights or
options for the purchase of Convertible Securities, then, in each
such case, if the Effective Price thereof is less than the then
current Exercise Price, the Company shall be deemed to have
issued at the time of the issuance of such rights or options the
maximum number of Additional Shares of Common Stock issuable upon
conversion of the total amount of Convertible Securities covered
by such rights or options and to have received as consideration
for the issuance of such Additional Shares of Common Stock an
amount equal to the amount of consideration, if any, received by
the Company for the issuance of such rights or options, plus the
minimum amounts of consideration, if any, payable to the Company
upon the exercise of such rights or options plus the minimum
amount of consideration, if any, payable to the Company upon the
conversion of such Convertible Securities. For purposes of this
Section 7.4, "Effective Price" shall mean the quotient determined
by dividing the total amount of such consideration by such
maximum number of Additional Shares of Common Stock. No further
adjustment of such Conversion Price adjusted upon the issuance of
such rights or options shall be made as a result of the actual
issuance of the Convertible Securities upon the exercise of such
rights or options or upon the actual issuance of Additional
Shares of Common Stock upon the conversion of such Convertible
Securities. The provisions of Section 7.3 above for the
readjustment of such Conversion Price upon the expiration of
rights or options or the rights of conversion of Convertible
Securities shall apply mutatis mutandis to the rights, options
and Convertible Securities referred to in this Section 7.4.
7.5. The term "Additional Shares of Common Stock" as
used herein shall mean all shares of Common Stock issued or
deemed issued by the Company after the Original Issue Date,
whether or not subsequently reacquired or retired by the Company,
other than shares of Common Stock issued upon exercise of this
Warrant.
8. Notice of Adjustment of Exercise Price and Warrant
Number. Upon any adjustment of the Exercise Price and/or an
increase or decrease in the number of shares of Warrant Common
Stock issuable upon exercise of this Warrant, then, and in each
case, the Company, within thirty (30) days thereafter, shall give
notice thereof in writing in accordance with Section 16 hereof to
Holder stating the event causing such adjustment, including a
description of the number of Additional Shares of Common Stock
and the exercise or sales price attributable thereto, if
applicable. In such event, Holder may request, and the Company
shall promptly provide to Holder, a notice with the new adjusted
Exercise Price and the increased or decreased number of shares
issuable upon exercise of this Warrant, which sets forth in
reasonable detail the method of calculation and the facts upon
which such calculation is based. Where appropriate and reason-
able, such notice may be given in advance and included as a part
of the written notice required to be given pursuant to Section 10
hereof.
9. Effect of Reorganization, Reclassification, Consolida-
tion, Merger, etc. If, at any time after the Original Issue Date
while this Warrant is outstanding, there should be any capital
reorganization or reclassification of the capital stock of the
Company (other than a subdivision or combination of shares pro-
vided for in Section 6.1 hereof) or any consolidation or merger
of the Company with another corporation or any sale, conveyance,
lease or other transfer by the Company of all or substantially
all of its property to any other corporation, Holder shall
thereafter, upon exercise of this Warrant, be entitled to receive
the number of shares of stock or other securities or property of
the Company, or of the successor corporation resulting from such
consolidation or merger, as the case may be, to which the Common
Stock (and any other securities and property) of the Company,
deliverable upon the exercise of this Warrant, would have been
entitled upon such capital reorganization, reclassification of
capital stock, consolidation, merger, sale or other transfer if
this Warrant had been exercised immediately prior to such capital
reorganization, reclassification of capital stock, consolidation,
merger, sale or other transfer; and, in any such case, appro-
priate adjustment (as determined in good faith by the Company's
Board of Directors) shall be made in the application of the
provisions herein set forth with respect to the rights and
interests of Holder thereafter to the end that the provisions set
forth herein (including those relating to adjustments of the
Exercise Price and the number of shares issuable upon the exer-
cise of this Warrant) shall thereafter be applicable, as near as
reasonably may be, in relation to any shares or other property
thereafter deliverable upon the exercise hereof as if this
Warrant had been exercised immediately prior to such capital
reorganization, reclassification of capital stock, consolidation,
merger, sale or other transfer and Holder had carried out the
terms of the exchange as provided for by such capital reorganiza-
tion, reclassification of capital stock, consolidation or merger.
The Company shall not effect any such capital reorganization,
consolidation or merger unless, upon or prior to the consummation
thereof, the successor corporation shall assume by written
instrument, deemed by the Company's Board of Directors to be
satisfactory in form and substance, the obligation to deliver to
Holder such shares of stock, securities, cash or property as such
Holder shall be entitled to purchase in accordance with the
foregoing provisions.
10. Prior Notice of Certain Events. In case at any time:
10.1. the Company shall pay any dividend payable in
any capital stock upon its Common Stock or make any distribution
to the holders of its Common Stock; or
10.2. there shall be any capital reorganization or
reclassification of the capital stock of the Company, or con-
solidation or merger of the Company with another corporation
(other than a reincorporation merger) or a sale of all or sub-
stantially all its assets; or
10.3. the Company shall offer for subscription pro
rata to the holders of its Common Stock any additional shares of
stock of any class or any other rights; or
10.4. there shall be a voluntary or involuntary dis-
solution, liquidation or winding-up of the Company;
then, in any of said cases, the Company shall give prior written
notice, by first-class mail, postage prepaid, addressed to Holder
at the address of such Holder as shown on the registration books
of the Company, of the date on which (i) the books of the Company
shall close or a record shall be taken for such stock dividend,
distribution or subscription rights, or (ii) such reorganization,
reclassification, consolidation, merger, sale, dissolution,
liquidation or winding-up is reasonably expected to take place,
as the case may be. Such notice shall also specify the expected
date as of which the holders of the Common Stock of record shall
participate in said dividend, distribution or subscription rights
or shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such
reorganization, reclassification, consolidation, merger or sale,
dissolution, liquidation or winding-up, as the case may be. Such
written notice shall be given at least thirty (30) days prior to
the action in question and not less than thirty (30) days prior
to the record date or the date on which the Company's transfer
books are closed in respect thereto.
11. No Rights or Responsibilities as Stockholder. This
Warrant neither entitles Holder to any rights, nor subjects
Holder to any responsibilities, as a stockholder of the Company.
12. Exchange. This Warrant is exchangeable, upon the sur-
render hereof by Holder at the principal office of the Company in
New York City, New York, for new warrants of like tenor and date
representing in the aggregate the right to purchase the number of
shares of Warrant Common Stock purchasable hereunder, each of
such new warrants to represent the right to purchase such number
of shares of Warrant Common Stock as shall be designated by
Holder at the time of such surrender.
13. Loss, Theft, Destruction or Mutilation of Warrant.
Upon receipt by the Company of evidence reasonably satisfactory
to it of the loss, theft, destruction or mutilation of this
Warrant, and, in case of loss, theft or destruction, of indemnity
or security reasonably satisfactory to it, and upon reimbursement
to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated,
the Company will make and deliver a new warrant of like tenor and
date, in lieu of this Warrant.
14. Title of Warrant. This Warrant and all rights here-
under are transferable, in whole but not in part, only to a
Permitted Transferee, at the office or agency of the Company, by
Holder in person or by a duly authorized attorney, upon surrender
of this Warrant together with an assignment hereof properly
endorsed. Until transfer hereof on the registration books of the
Company, the Company may treat Holder as the owner hereof for all
purposes.
15. Lapse of Warrant. Notwithstanding anything in this
Warrant to the contrary, this Warrant and Holder's rights
hereunder shall immediately lapse in the event that it is
determined by the Internal Revenue Service or by the Company's
independent accountants that the issuance of this Warrant has
caused an Ownership Change under Section 382 of the Internal
Revenue Code of 1986, as amended (the "Code"), unless it is also
determined that an "Ownership Change" under Section 382 of the
Code will have occurred on or before the date of such
determination by reason of transactions other than the issuance
of this Warrant.
16. Communications and Notices. All communications and
notices hereunder must be in writing, either delivered in hand or
sent by first-class mail, postage prepaid, or sent by facsimile
machine or telex, and, if to the Company, shall be addressed to
it at the address set forth on the first page hereof, or at such
other address as the Company may hereafter designate in writing
by notice to Holder, and, if to such Holder, addressed to Holder
at the address of Holder as shown on the books of the Company.
17. Sundays, Holidays, etc. If the last or appointed day
for the taking of any action required or the expiration of any
right granted herein shall be a Sunday or a Saturday or shall be
a legal holiday or a day on which banking institutions in the
District of Columbia are authorized or required by law to remain
closed, then such action may be taken or right may be exercised
on the next succeeding day which is not a Sunday, a Saturday or a
legal holiday and not a day on which banking institutions in the
District of Columbia are authorized or required by law to remain
closed.
18. Miscellaneous.
18.1. THIS WARRANT SHALL BE BINDING UPON THE COMPANY'S
SUCCESSORS IN TITLE AND ASSIGNS. THIS WARRANT SHALL CONSTITUTE A
CONTRACT UNDER SEAL AND, FOR ALL PURPOSES, SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE
OF MINNESOTA.
18.2. Reference is made to the Purchase Agreement.
For all purposes of the Purchase Agreement: (i) the Original
Holder hereof or any Permitted Transferees shall be deemed to be
a "Holder" as defined in the Purchase Agreement; and (ii) the
Original Holder hereof and any Permitted Transferee shall be
bound by all of the terms and conditions contained in, and
entitled to all of the benefits of, the Purchase Agreement.
18.3. Notwithstanding anything contained in Article 6
or 7 to the contrary, with Holder's prior written consent, the
formulae used to calculate the Exercise Price and number of
shares issuable under this Warrant at any time under Article 6 or
7 may be amended or ignored in favor of a more equitable
adjustment of the same to preserve Holder's economic benefits and
ownership interests in the Company.
IN WITNESS WHEREOF, CPT Holdings, Inc. has caused this
Common Stock Purchase Warrant to be signed in its corporate name
by its duly authorized officers.
Dated as of: February 1, 1996
CPT HOLDINGS, INC.,
a Minnesota corporation
By: /s/ William L. Remley
William L. Remley, President
FORM OF SUBSCRIPTION
(To be signed only on exercise of Common Stock Purchase
Warrant)
TO: CPT HOLDINGS, INC.
The undersigned, the registered holder of the within
Common Stock Purchase Warrant of CPT HOLDINGS, INC. hereby
irrevocably elects to exercise this Common Stock Purchase
Warrant for, and to purchase thereunder, * shares
of Common Stock of CPT HOLDINGS, INC., and the undersigned
herewith makes payment of $ therefor, and
requests that the certificates for such shares be issued in
the name of, and delivered to, , whose
address is .
Dated: By:
(Signature must conform in
all respects to name of
registered holder as
specified on the face of the
Warrant)
(Address)
Signed in the presence of:
*Insert here the number of shares (all or part of the number
of shares called for in the Common Stock Purchase Warrant) as to
which the Common Stock Purchase Warrant is being exercised with-
out making any adjustment for any other stock or other securities
or property or cash which, pursuant to the adjustment provisions
of the Common Stock Purchase Warrant, may be deliverable on
exercise.
FORM OF ASSIGNMENT
(To be signed only on transfer of Common Stock Purchase
Warrant)
For value received, the undersigned hereby sells, assigns,
and transfers unto the right represented
by the within Common Stock Purchase Warrant to purchase all of
the shares of Common Stock of CPT HOLDINGS, INC. to which the
within Common Stock Purchase Warrant relates, and appoints
Attorney to transfer such right on the books of CPT
HOLDING, INC. with full power of substitution in the premises.
Dated: By:
(Signature must conform in all
respects to name of registered
holder as specified on the face
of the Warrant)
(Address)
Signed in the presence of:
Exhibit 6.6
ALLONGE TO PROMISSORY NOTE
[LINE OF CREDIT]
THIS ALLONGE TO PROMISSORY NOTE [Line of Credit] (this
"Allonge") is made as of the 20th day of April, 1995 by and
between (i) TRINITY INVESTMENT CORP., a Delaware corporation
("Maker"), and (ii) THE A.J. 1989 TRUST ("Payee").
WHEREAS, Maker executed and delivered to Payee a Promissory
Note [Line of Credit] dated February 1, 1995 (the "Note") in the
original principal face amount of Ten Million Five Hundred
Thousand Dollars ($10,500,000) [the "Loan Proceeds"];
WHEREAS, effective as of April 1, 1995, Maker loaned
approximately Six Million Seven Hundred Thirty Thousand Dollars
($6,730,000) of the Loan Proceeds to CPT Holdings, Inc., a
Minnesota corporation ["CPT"], and, in connection therewith,
assigned, pledged and/or endorsed over to Payee (i) that certain
Debenture dated April 1, 1995 from CPT to Maker (the
"Debenture"), (ii) that certain Credit Agreement dated April 1,
1995 between CPT and Maker (the "Credit Agreement"), and (iii)
any and all other documents executed and/or delivered in
connection with the Debenture and the Credit Agreement, pursuant
to that certain Loan and Security Agreement dated as of February
1, 1995 between Maker and Payee (the "Loan Agreement");
WHEREAS, proceeds from the Debenture were intended to be
used for, among other things, the repayment of outstanding loans
and other obligations owed by CPT to Payee (the "CPT
Obligations") in the approximate aggregate amount of Three
Hundred Seventy-Three Thousand Dollars ($373,000) as of even date
herewith (including all accrued interest thereon), the repayment
of which CPT Obligations was assumed by Maker;
WHEREAS, in lieu of repaying the CPT Obligations to Payee,
Maker desires to increase the Loan Proceeds by a like amount; and
WHEREAS, Maker and Payee desire to amend the provisions of
the Note and the Loan Agreement, as more fully set forth herein.
NOW, THEREFORE, for good and valuable consideration, Maker
and Payee hereby agree as follows:
1. The available Loan Proceeds under the Note and the Loan
Agreement is hereby increased to a maximum aggregate amount of
Ten Million Nine Hundred Thousand Dollars ($10,900,000), of which
the CPT Obligations shall be deemed a part effective as of even
date herewith.
2. In this connection, Maker and Payee hereby acknowledge
and agree that Ten Million Eight Hundred Seventy-Three Dollars
($10,873,000) of Loan Proceeds (plus accrued interest on all
amounts advanced prior to the date hereof) have been advanced
under the Note and the Loan Agreement as of the date hereof.
3. It is the intention of Maker and Payee that this Allonge
be deemed a modification of the Note and the Loan Agreement, that
the Allonge not be deemed an independent instrument which serves
as a substitute or replacement therefor and that the Allonge be
physically attached to the Note and become a part thereof.
4. Except as modified hereby, the Note, the Loan Agreement
and all of their respective terms and provisions shall remain in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Allonge under seal as of the date set forth above.
WITNESS: MAKER:
TRINITY INVESTMENT CORP.
/s/ Gary R. Siegel By /s/ William L. Remley
William L. Remley, President
WITNESS: PAYEE:
THE A.J. 1989 TRUST
/s/ Gary R. Siegel By /s/ William L. Remley (SEAL)
William L. Remley, Trustee
