UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
================================================================================
Washington, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarter ended March 31, 1999 Commission File No. 0-12361
Richton International Corporation
(Exact name of registrant as specified in its charter)
Delaware 05-0122205
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
767 Fifth Avenue, New York, New York 10153
(Address of principal executive offices) (Zip Code)
Issuer's telephone number.........................................(212) 751-1445
Securities registered under Name of Exchange on which Registered:
Section 12(b) of the Exchange Act:
Common Stock, par value $.10 American Stock Exchange
Securities registered under Section 12(g) of the Exchange Act:
Series A Preferred Stock, par value $1.00. Purchase Right
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 dates. Yes X No
Indicate the number of shares outstanding of each of the Registrant's classes of
Common Stock, as of the latest practicable date.
Common Stock, par value $.10, 2,951,000 shares at April 1, 1999
<PAGE>
Richton International Corporation
FORM 10-Q
INDEX
- -------------------------------------------------------------------------------
PAGE
PART I FINANCIAL INFORMATION
Item 1. - Financial Statements:
Consolidated Statement of Income
For the three months ended
March 31, 1999 and March 31, 1998 3
Consolidated Balance Sheets at
March 31, 1999 and December 31, 1998 4
Consolidated Statements of Cash Flow
For the three months ended March 31, 1999
and March 31, 1998 5
Notes to Consolidated Financial
Statements 6
Item 2. - Management's Discussion and
Analysis of Results of Operation and
Financial Condition 12
PART II OTHER INFORMATION None
2
<PAGE>
RICHTON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Three Months ended March 31,
----------------------------
1999 1998
---- ----
Net Sales $ 29,385,000 $ 16,955,000
Cost of Sales 21,809,000 12,642,000
------------ ------------
Gross Profit 7,576,000 4,313,000
Selling, general & administrative
expenses 9,492,000 6,017,000
------------ ------------
Income from Operations (1,916,000) (1,704,000)
Interest income 220,000 170,000
Interest expense 626,000 421,000
------------ ------------
Income before provision for
income taxes (2,322,000) (1,955,000
Provision for income taxes (880,000) (771,000)
------------ ------------
$ (1,442,000) $ (1,184,000)
============ ============
Net Income per common share:
Basic $ (0.49) $ (0.40)
============ ============
Diluted $ (0.43) $ (0.35)
============ ============
Weighted Average Common and Common Equivalent
Shares outstanding
Basic 2,951,000 2,978,000
============ ============
Diluted 3,355,000 3,361,000
============ ============
The accompanying notes are an integral part
of these consolidated statements
3
<PAGE>
RICHTON INTERNATIONAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, December 31,
Assets 1999 1998
------ ---- ----
<S> <C> <C>
Current assets:
Cash and Cash Equivalents $ 422,000 $ 995,000
Notes and Accounts Receivable, net of allowance for
doubtful accounts of $1,250,000 in 1999 and 1998 25,169,000 24,486,000
Inventories, net 26,219,000 20,419,000
Prepaid Expenses and Other Current Assets 1,042,000 736,000
Deferred Taxes 844,000 844,000
------------- -------------
Total Current Assets 53,696,000 47,480,000
Property, Plant and Equipment, 4,331,000 3,566,000
Less: Allowance for Depreciation and Amortization (1,711,000) (1,411,000)
------------- -------------
2,620,000 2,155,000
Other Assets:
Deferred taxes 1,408,000 1,001,000
Goodwill 6,446,000 4,515,000
Other Intangibles 2,331,000 2,058,000
Other, net 421,000 284,000
------------- -------------
TOTAL ASSETS $ 66,922,000 $ 57,493,000
============= =============
Liabilities & Stockholder s Equity
Current Portion of Long Term Debt $ 1,852,000 $ 1,832,000
Notes Payable 35,135,000 25,960,000
Accounts Payable,Trade 9,484,000 5,999,000
Accrued Liabilities 1,864,000 4,769,000
Deferred Income 3,688,000 2,385,000
------------- -------------
Total Current Liabilities 52,023,000 40,945,000
Noncurrent Liabilities
Long Term Senior Debt 4,300,000 4,475,000
Subordinated Debt 1,962,000 1,996,000
Less: Current Portion of Long-term Debt (1,852,000) (1,832,000)
------------- -------------
4,410,000 4,639,000
Stockholders' Equity
Preferred Stock,$1.00 par value; authorized
500,000 shares; none issued
Common Stock,$.10 par value; authorized
6,000,000 shares; issued 3,196,692 shares at March 31, 322,000 322,000
1999 and December 31, 1998
Additional Paid-in Capital 18,013,000 18,013,000
Retained Earnings (6,137,000) (4,696,000)
Treasury Stock (1,430,000) (1,430,000)
Translation adjustment (109,000) (130,000)
Deferred Stock Compensation (170,000) (170,000)
------------- -------------
Total Stockholders' Equity 10,489,000 11,909,000
TOTAL LIABILITIES & STOCKHOLDERS' EQUITY $ 66,922,000 $ 57,493,000
============= =============
</TABLE>
The accompanying notes are an integral part of these
consolidated balance sheets
4
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
Three months ended March 31
-----------------------------
1999 1998
---- ----
OPERATING ACTIVITIES
Net Income $ (1,442,000) $ (1,184,000)
Reconciliation of net income to net cash
provided by (used in )operating activities:
Depreciation and amortization 545,000 246,000
Changes in operating assets and Liabilities:
Deferred Income 392,000 (75,000)
Other working capital items, assets (2,861,000) (5,311,000)
Other working capital items, liabilities (752,000) 3,172,000)
Deferred taxes (407,000) (55,000)
Other assets (136,000) (170,000)
0
------------- -------------
Net cash provided by
(used in) operating activities (4,661,000) (3,377,000)
INVESTING ACTIVITIES
Capital expenditures (435,000) (3,000)
Cash paid for acquisitions, net of cash acquired (3,067,000) 45,000
------------- -------------
Net cash used in investing activities (3,502,000) 42,000
FINANCING ACTIVITIES
Proceeds from Long-Term Debt -- --
Repayment of Subordinated Debt (527,000) (51,000)
Exercise of Stock options 2,000
Repurchase of Shares --
Proceeds from Line of Credit 8,264,000 3,170,000
Repayment of Long -Term Debt (175,000) (175,000)
------------- -------------
Net cash provided by financing activities 7,562,000 2,946,000
Effect of exchange rate on cash balances 28,000 --
------------- -------------
Increase (Decrease) in cash and cash equivalents (573,000) (389,000)
Cash and cash equivalents, beginning of period 995,000 474,000
------------- -------------
Cash and cash equivalents, end of period $ (422,000) $ 85,000
============= =============
SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION:
Cash paid for interest $ 668,000 $ 319,000
============= =============
Cash paid for income taxes $ 1,026,000 $ 80,000
============= =============
The accompanying notes are an integral part
of these consolidated statements
5
<PAGE>
RICHTON INTERNATIONAL CORPORATION AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
This report contains forward-looking statements. The matters expressed in such
statements are subject to numerous uncertainties and risks including but not
limited to general economic and climatic conditions in the markets in which
Richton and its subsidiaries operate, fluctuation in demand for the products and
services offered by these subsidiaries, and current expectations of the Company
or its management. Should one or more of those uncertainties or risks
materialize, or should the underlying assumptions prove incorrect, actual
results may vary materially from those described as forward-looking statements.
The Company does not intend to update those forward-looking statements.
1. Description of Business:
Richton International Corporation ("Richton") is a holding company with three
principal subsidiaries, Century Supply Corp. ("Century"), CBE Technologies Inc
("CBE"), and Creative business concepts, Inc ("CBC")) collectively the
"Company". Century is a leading full-service wholesale distributor of sprinkler
irrigation systems, outdoor lighting and decorative fountain equipment. Branches
serve customers in 33 states mostly in the eastern United States and in Ontario,
Canada. Irrigation products have historically been sold by manufacturers
primarily through wholesale distributors. Century is a major distributor in the
United States for all of the leading original equipment manufacturers (OEM) in
the irrigation systems field. CBE Technologies, Inc. ("CBE") is headquartered in
Boston, Massachusetts with offices located in New York, and Portland, Maine.
CBC, Inc is located in Irvine, California. CBE and CBC are Systems Integrators
providing network consulting, design, and installation; network management and
related support; technical services outsourcing; comprehensive hardware
maintenance; and equipment sales. CBE and CBC's technical certifications
include; Novell Platinum reseller, Microsoft Channel partner, Banyan
Enterprise/Network dealer, Novell authorized Training Center, and a Novell
Authorized Service Center.
2. Summary of Significant Accounting Policies:
Principles of Consolidation--The accompanying consolidated financial statements
include the accounts of Richton and all wholly-owned subsidiaries. All
inter-company accounts and transactions have been eliminated in consolidation.
Use of Estimates--The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
6
<PAGE>
Cash and Cash Equivalents--Cash and cash equivalents include highly liquid
investments with original maturity's of three months or less.
Allowance For Doubtful Accounts--The Company provides an allowance for doubtful
accounts arising from operations of the business, based upon a specific review
of certain outstanding amounts and historical experience.
Inventories--The Company values inventory, which consists entirely of finished
goods, at the lower of cost or market using the first-in first-out ("FIFO")
method of accounting.
Goodwill--Goodwill shown in the consolidated balance sheets at December 31, 1998
and 1997 relates to multiple acquisitions completed during the last four years.
Goodwill is being amortized on a straight-line basis over 5 to 15 years.
Other Intangibles--Other intangibles consist principally of amounts paid to
sellers of businesses acquired subject to non-compete agreements and are being
amortized over periods of 1-5 years. Cost allocated primarily to non-compete
agreements were $2,025,000 and $1,115,000 at December 31, 1998 and 1997,
respectively. Accumulated amortization was $352,000 and $287,000 at December 31,
1998 and 1997, respectively.
Long-Lived Assets--The provisions of SFAS No. 121 "Accounting for the Impairment
of Long Lived Assets" requires, among other things, that an entity review its
long-lived assets and certain related intangibles for impairment whenever
changes in circumstances indicate that the carrying amount of an asset may not
be fully recoverable. The Company continually evaluates whether events and
circumstances have occurred that indicate the remaining estimated useful life of
long-lived assets, including goodwill and other intangibles, may not be
recoverable. As a result of this review, management does not believe there is
any impairment of its long-lived assets at December 31, 1998.
Revenue Recognition--Revenue from sales and services are recorded at the time
the product is shipped to the customer or the service to be billed is completed.
The Company reports its sales levels on a net basis, which is computed by
deducting from gross sales the amount of actual returns received and an amount
established for anticipated returns.
Sales Returns--The Company reports its sales levels on a net sales basis, with
net sales being computed by deducting from gross sales the amount of actual
sales returns and the amount of reserves established for anticipated sales
returns.
Deferred Income--Deferred income represents cash received from customers related
to service contracts that extend for specified periods of time, less than one
year. Income is recognized proportionally over the life of the contract.
Income Taxes--The Company accounts for income taxes in accordance with SFAS No.
109, "Accounting for Income Taxes". This statement requires the Company to
recognize deferred tax assets and liabilities for the expected future tax
consequences of events that have been recognized in the Company's financial
statements or tax returns. Under this method, deferred tax assets and
liabilities are determined based on the difference between the financial
statement carrying amounts and the tax basis of assets and liabilities.
Accounting for Stock Based Compensation--The Company has elected to account for
stock-based compensation using the intrinsic value method prescribed in
Accounting Principles Board Opinion No. 25, "Accounting for Stock issued to
Employees," and
7
<PAGE>
related interpretations. Accordingly, compensation cost for stock options is
measured as the excess, if any, of the quoted market price of the Company's
stock at the date of grant over the amount the employee must pay to acquire the
stock and is recorded in the accompanying statements of income. The Company has
provided pro forma disclosure of the fair value at the date of grant of stock
options granted during 1998, 1997 and 1996 in Note 10, in accordance with the
disclosure-only provisions of SFAS No. 123, "Accounting for Stock-Based
Compensation".
Comprehensive Income--In June 1997, the Financial Accounting Standards Board
issued SFAS No. 130 "Reporting Comprehensive Income." SFAS No.130 establishes
standards for reporting and display of comprehensive income and its components
in a full set of financial statements. The Company adopted SFAS No. 130 during
1998. The Company's comprehensive income consists of a cumulative translation
adjustment of $130,000. Total comprehensive income has not been presented on the
accompanying consolidated financial statements as the impact is not material to
the consolidated financial statements.
Derivative Instruments--In June 1998, the FASB issued SFAS No. 133 " Accounting
for Derivative Instruments and Hedging Activities." This statement establishes
accounting and reporting standards for derivative instruments, including certain
derivative instruments embedded in other contracts, and for hedging activities.
SFAS No. 133 is effective for all fiscal years beginning after June 15, 1999 and
will not require retroactive restatement of prior period financial statements.
The Company does not presently make material use of derivative instruments.
Reclassification--Certain prior year balances have been reclassified to conform
with current year presentations.
3. Acquisitions:
During 1998, Century acquired five different distributor operations in four
different markets: Northern New Jersey, Idaho, Utah and Florida for an aggregate
purchase price of $6.4 million. The acquisitions were made in cash and were
financed by its working capital line. As a result of these acquisitions, the
Company recorded $4.2 million of tangible net assets. Century also opened a
branch in Oregon. Similar to past experience, these acquisitions were made
primarily after the prime selling season.
On February 25, 1999, the Company acquired 100% of the common stock of Creative
Business Concepts (CBC) of Irvine, California, a leading computer networking
integrator, for cash. The Costa Mesa office of Richton's CBE subsidiary will be
consolidated with CBC. The acquisition will be accounted for as a purchase. The
unaudited balance sheet of CBC as of December 31, 1998 reflected $3.6 million in
total assets and $3.1 million in total liabilities. The company recorded a
charge to goodwill of approximately $1.7 million on this acquisition.
8
<PAGE>
4. Statement of Cash Flows:
The components of Other Working Capital items included in the Consolidated
Statements of Cash Flows are as follows:
Three Months Ended March 31,
-----------------------------------
1999 1998
----------- -----------
Receivables $ 2,040,000 (1,274,000)
Inventories (4,769,000) (4,284,000)
Prepaid Expenses (132,000) (247,000)
Increase in Working
Capital Items, Assets $(2,861,000) $(5,311,000)
=========== ===========
Accounts Payable 2,736,000 4,724,000
Accrued Liabilities (3,488,000) (1,552,000)
----------- -----------
Increase Working Capital
Items, Liabilities $ (752,000) $ 3,172,000
----------- -----------
5. Financing Arrangements:
In May 1999, Richton entered into a new banking agreement with PNC
Business Credit that provided a increase in line of credit financing to $60
million and a five year term loan of $7.5 million. The existing line of credit
that was replaced was limited to $40 million. The increased availability from
the new revolving line of credit recognizes Richton's increased leverage and the
need to fund its growth. The interest rates on this new financing are LIBOR plus
225 basis points if senior debt is less than 2.5 times EBITDA and LIBOR plus 250
basis points if senior debt is greater than 2.5 times (at May 15, 1999 7.15%, or
7.4%, respectively). The Company expects that senior debt will exceed 2.5 times
EBITDA during most of the year.
The $7.5 million term debt replaces the existing $4.3 million term
obligation The new Term loan has a five year maturity, bears interest at the
rate 50 basis points higher than the revolving line of credit, and provides for
monthly interest and principal payments.
9
<PAGE>
6. Long-Term Debt:
The Company has the following long-term debt as of March 31 and December 31,
<TABLE>
<CAPTION>
1999 1998
---- ----
<S> <C> <C>
Term note payable to a bank, secured by accounts receivable, inventory,
furniture and equipment, interest at Libor plus 175 points (7.4% as of December
31, 1998), payable in quarterly installments of
$175,000, final payment due April 27, 2001 $4,300,000 $4,475,000
Installments payable to former owner of Century, unsecured and
subordinated to bank debt, payable in quarterly installments of $50,000,
final payment due June 30, 2000 218,000 268,000
Note payable to related party, unsecured and subordinated to bank
debt, interest at 9%, payable in semi-annual installments of $118,125
commencing April 1996, final payment due October 31, 1999--
recorded net of discount (A) 341,000 341,000
Note payable to related party, unsecured and subordinated to the
term note payable to bank, interest at 10%, payable in 10
installments of $100,000 on October 15th and April 15th, final
payment due April 2000--recorded net of discount (B) 362,000 362,000
Note payable to seller of CBE, unsecured, and subordinated to
the all bank debt, interest at 9% payable in 10 installments of
$100,000 on October 15th and April 15th, final payment
due April 2000 254,000 254,000
Other 787,000 771,000
---------- ----------
6,262,000 6,471,000
Less: Current Portion (1,852,000) (1,832,000)
---------- ----------
$4,410,000 $5,591,000
========== ==========
</TABLE>
(A): The Company issued 236,250 warrants to acquire 236,250 shares of the common
stock of Richton at $1 3/8 per share in connection with this loan. The warrants
were valued at $143,000 which represented the fair market value at the date of
grant.
(B): The Company issued 100,000 warrants to acquire 100,000 shares of Richton's
common stock at $3.0 per share which represented the fair market value at the
time of issuance.
7. Stock Options
The Company has as part of its 1990 Long-Term Compensation Plan, a Stock Option
Plan ("the Plan"). Richton accounts for this plan under APB Opinion No. 25,
under which no compensation cost has been recognized. The Company may grant
options for
10
<PAGE>
up to 415,000 shares under the Plan. The Company has granted options
representing 315,000 shares through March 31, 1999. Options are granted over
terms not to exceed ten years. Under the Plan, the option exercise price equals
the stock market price on date of grant except for options granted the Chairman
of the Board. The exercise price for Mr. Sullivan's options are at 110% of the
current market price at date of grant.
The Company has issued warrants to purchase 336,250 shares of Common Stock in
connection with two debt agreements. These warrants are currently exercisable
and will expire in seven years from date of issue.
8. Net Income Per Share:
Net income per common share was calculated on the basis of 3,355,000, and
3,361,000, weighted average common and common equivalent shares outstanding in
the three month periods ending March 31, 1999, and 1998, respectively.
Net Income
Income Shares Per share
------ ------ ---------
For the three months ended March 31, 1998
-----------------------------------------
Basic $(1,184,000) 2,978,000 $(.40)
Effect of dilutive
options and warrants -- 383,000 --
Diluted $(1,184,000) 3,361,000 $(.35)
For the three months ended March 31, 1999
-----------------------------------------
Basic $(1,442,000) 2,951,000 $(.49)
Effect of dilutive
options and warrants -- 404,000 --
Diluted $(1,442,000) 3,355,000 $(.43)
Basic net income per common share was computed by dividing net income by the
weighted average number of shares of common stock outstanding during the year.
Diluted net income per common share included the effect of options and warrants
computed under the treasury stock method.
11
<PAGE>
Management's Discussion and Analysis of Financial Condition
and Results of Operations.
Results of Operations- for the Three Months ended March 31, 1999
Sales for the three months ended March 31, 1999 were $29.4 million, an increase
of $12.4 million or approximately 74% over the $17.0 million recorded for the
same three month period in 1998.
Gross profit for the three months ended March 31, 1999 was $7.6 million, an
increase of $3.3 million or 76% over the $4.3 million recorded in the same three
months in 1998. The slightly higher gross margin percentage this year over last
year is due principally to last years business which was negatively impacted by
the effects of El Nino.
Selling, general and administrative expenses for the three months ended March
31, 1999 increased $3.5 million to $9.5 million from $6.0 million for the same
three month period in 1998. The higher level of expense is due to the higher
number of operating branches - now 114 as compared with 75 last year.
The provision for federal, state and foreign income taxes as a percentage of
pre-tax loss is approximately the same as last year. The 1% difference reflects
the effect of state taxes on the respective losses recorded for these periods.
As a result of the foregoing, the net loss for the three month period ended
March 31, 1999 was $1.4 million or $(.43) per diluted share, a increase loss of
$.2 million over the $1.2 million loss or $(.35) per diluted share reported for
the same three month period in 1998.
Financial Condition:
The Company's working capital declined approximately $4.8 million to $1.7
million. At March 31,1999. This decline was attributed to the quarter's loss of
$1.4 million and to acquisitions and capital expenditures of $3.5 million. The
largest portion of which was the purchase of Creative Business Concepts , Inc (
CBC) for $2.2 million and the purchase of three irrigation branches by Century.
Though the Company has continued to generate sufficient cash to liquidate its
term and subordinated debt as it becomes due, and make acquisitions necessary
for its growth, there is no assurance, given the high degree of leverage, the
seasonality of its principal business and the related higher fixed charges
incumbent with more branches, that it can continue to do so in the future.
12
<PAGE>
The Annual Stockholders meeting was held as previously announced on May 3, 1999
at the Warwick Hotel, in New York City. At the meeting Mr. Norman Alexander and
Mr. Fred R. Sullivan were elected to serve as directors for a term expiring at
the 2002 annual meeting. Of the shares eligible to vote, ninety six percent
(96%) were represented at the meeting and of these shares more than ninety nine
and one half percent (99.5%) voted for their election and for the appointment of
Arthur Andersen & Co. LLP as auditors for the calendar year ending December 31,
1999.
Year 2000
The year 2000 issue exists because many computer systems and applications,
including those imbedded in equipment and facilities, use two digit rather than
four digit date fields to designate an applicable year. As a result, the systems
and applications many not properly recognize the year 2000 or process data which
includes it, potentially causing data miscalculations or inaccuracies or
operational malfunctions or failures.
Each of the Company's operating subsidiaries uses systems software acquired from
an established software vendor. In each case the vendor has indicated that the
software being supplied is year 2000 compliant. In the case of Century, their
operating computer environment uses a proxy for a date rather than the actual
date -thus there is no double zero situation to deal with that would be subject
to misinterpretations or miscalculation.
CBE has received a "Y2K Compliance Certificate" from American Micro Innovations,
Inc. the vendor of their general ledger systems and its supporting modules.
Despite the assurance, the Company is currently testing these systems during
this 2rd quarter of 1999.
Both Century and CBE communicate with their suppliers through EDI. Century,
however, does not receive its third party data directly into its operating
systems but rather it converts such data before it is internally processed,
avoiding the opportunity for contamination of their system. CBE recently tested
their EDI transmission with several of their largest vendors and found the
systems compliant. Century , CBE and CBC are continuing to work with their
suppliers, however should any supplier or vendor be unable to achieve year 2000
compliance by September 30, 1999, the Company intends to switch to other
suppliers that are able to provide year 2000 compliance. The Company does not
expect to incur any material additional cost to achieve year 2000 compliance.
The Company's ability however to be completely compliant is of course dependant
upon the ability of its vendors, suppliers, bankers and other fiduciaries to
also be compliant. In addition, the Company can not guarantee that third parties
upon whom the Company depend for essential services, such as electric utilities,
and telephone and other interchange carriers, will convert their critical
systems and processes in a timely manner. Failure or delay by any of these
parties could disrupt the Company's businesses. The Company has established a
supplier compliance program to minimize such risks.
13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
RICHTON INTERNATIONAL CORPORATION
(Registrant)
/s/ Cornelius F. Griffin
--------------------------------------------
Cornelius F. Griffin
Vice President and Chief Financial Officer
(Principal Financial and Accounting Officer)
DATE: May 13, 1999
New York, New York
14
REVOLVING CREDIT, TERM LOAN
AND
SECURITY AGREEMENT
PNC BANK, NATIONAL ASSOCIATION
(AS LENDER AND AS AGENT)
WITH
RICHTON INTERNATIONAL CORPORATION,
CENTURY SUPPLY CORP.,
AND
CBE TECHNOLOGIES, INC.
(BORROWERS)
May 17, 1999
<PAGE>
TABLE OF CONTENTS
I. DEFINITIONS..........................................................
1.1. Accounting Terms...........................................
1.2. General Terms..............................................
1.3. Uniform Commercial Code Terms..............................
1.4. Certain Matters of Construction............................
II. ADVANCES, PAYMENTS...................................................
2.1. (a) Revolving Advances.................................
(b) Discretionary Rights...............................
2.2. Procedure for Revolving Advance Borrowing..................
2.3. Term Loan..................................................
2.4. Maximum Advances...........................................
2.5. Disbursement of Advance Proceeds...........................
2.6. Repayment of Advances......................................
2.7. Statement of Account ......................................
2.8. Additional Payments........................................
2.9. Manner of Borrowing and Payment............................
2.10. Mandatory Prepayment.......................................
2.11. Optional Prepayment........................................
2.12. Use of Proceeds............................................
2.13. Default of Lender..........................................
III. INTEREST AND FEES....................................................
3.1. Interest...................................................
3.2. Eurodollar Rate Loans......................................
3.3. Facility Fee...............................................
3.4. Additional Fees............................................
3.5. (a) Collateral Management Fee..........................
(b) Field Examination Expenses.........................
3.6. Computation of Interest and Fees...........................
3.7. Maximum Charges............................................
3.8. Increased Costs............................................
3.9. Basis For Determining Interest Rate Inadequate or Unfair...
3.10. Capital Adequacy...........................................
IV. COLLATERAL: GENERAL TERMS...........................................
4.1. Security Interest in the Collateral........................
4.2. Perfection of Security Interest............................
4.3. Disposition of Collateral..................................
4.4. Preservation of Collateral.................................
4.5. Ownership of Collateral....................................
4.6. Defense of Agent's and Lenders' Interests..................
-i-
<PAGE>
4.7. Books and Records..........................................
4.8. Financial Disclosure.......................................
4.9. Compliance with Laws.......................................
4.10. Inspection of Premises.....................................
4.11. Insurance..................................................
4.12. Failure to Pay Insurance...................................
4.13. Payment of Taxes...........................................
4.14. Payment of Leasehold Obligations...........................
4.15. Receivables................................................
(a) Nature of Receivables..............................
(b) Solvency of Customers..............................
(c) Locations of Borrower..............................
(d) Collection of Receivables..........................
(e) Notification of Assignment of Receivables..........
(f) Power of Agent to Act on Borrowers' Behalf.........
(g) No Liability.......................................
(h) Establishment of a Lockbox Account, Dominion Account
(i) Adjustments........................................
4.16. Inventory..................................................
4.17. Maintenance of Equipment...................................
4.18. Exculpation of Liability...................................
4.19. Environmental Matters......................................
4.20. Financing Statements.......................................
V. REPRESENTATIONS AND WARRANTIES.......................................
5.1. Authority..................................................
5.2. Formation and Qualification................................
5.3. Survival of Representations and Warranties.................
5.4. Tax Returns................................................
5.5. Financial Statements.......................................
5.6. Corporate Name.............................................
5.7. OSHA and Environmental Compliance..........................
5.8. Solvency; No Litigation, Violation, Indebtedness or Default
5.9. Patents, Trademarks, Copyrights and Licenses...............
5.10. Licenses and Permits.......................................
5.11. Default of Indebtedness....................................
5.12. No Default.................................................
5.13. No Burdensome Restrictions.................................
5.14. No Labor Disputes..........................................
5.15. Margin Regulations.........................................
5.16. Investment Company Act.....................................
5.17. Disclosure.................................................
5.18. Swaps......................................................
5.19. Conflicting Agreements.....................................
5.20. Application of Certain Laws and Regulations................
5.21. Business and Property of Borrowers and Guarantor...........
5.22. RHC; HTAC..................................................
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<PAGE>
5.23. Year 2000..................................................
VI. AFFIRMATIVE COVENANTS................................................
6.1. Payment of Fees............................................
6.2. Conduct of Business and Maintenance of Existence and Assets
6.3. Violations.................................................
6.4. Government Receivables.....................................
6.5. Execution of Supplemental Instruments......................
6.6. Payment of Indebtedness....................................
6.7. Standards of Financial Statement...........................
6.8. Interest Rate Protection Agreement.........................
6.9. Real Property Leases.......................................
6.10. Fixed Charge Coverage Ratio................................
6.11. Leverage Ratio.............................................
VII. NEGATIVE COVENANTS...................................................
7.1. Merger, Consolidation, Acquisition and Sale of Assets......
7.2. Creation of Liens..........................................
7.3. Guarantees.................................................
7.4. Investments................................................
7.5. Loans......................................................
7.6. Capital Expenditures.......................................
7.7. Dividends..................................................
7.8. Indebtedness...............................................
7.9. Nature of Business.........................................
7.10. Transactions with Affiliates...............................
7.11. Leases.....................................................
7.12. Subsidiaries...............................................
7.13. Fiscal Year and Accounting Changes.........................
7.14. Pledge of Credit...........................................
7.15. Amendment of Articles of Incorporation, By-Laws............
7.16. Compliance with ERISA......................................
7.17. Prepayment of Indebtedness.................................
VIII.CONDITIONS PRECEDENT.................................................
8.1. Conditions to Initial Advances.............................
(a) Notes..............................................
(b) Filings, Registrations and Recordings..............
(c) Corporate Proceedings..............................
(d) Incumbency Certificates............................
(e) Certificates.......................................
(f) Good Standing Certificates.........................
(g) Legal Opinions.....................................
(h) No Litigation......................................
(i) Financial Condition Certificates...................
(j) Collateral Examination.............................
(k) Fees...............................................
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<PAGE>
(l) Pro Forma Financial Statements.................
(m) Insurance......................................
(n) Certain Other Documents........................
(o) Subordination Agreement........................
(p) Guaranty; Guarantor Security Agreement.........
(q) Notice of Borrowing and Payment Instructions...
(r) Blocked Account................................
(s) Consents.......................................
(t) No Adverse Material Change.....................
(u) Leasehold Agreements...........................
(v) Contract Review................................
(w) Closing Certificate............................
(x) Borrowing Base Certificate.....................
(y) Undrawn Availability...........................
(z) Other..........................................
8.2. Conditions to Each Advance.................................
(a) Representations and Warranties.....................
(b) No Event of Default................................
(c) Maximum Advances...................................
IX. INFORMATION AS TO BORROWERS..........................................
9.1. Disclosure of Material Matters.............................
9.2. Schedules..................................................
9.3. Environmental Reports......................................
9.4. Litigation.................................................
9.5. Material Occurrences.......................................
9.6. Government Receivables.....................................
9.7. Annual Financial Statements................................
9.8. Quarterly Financial Statements.............................
9.9. Monthly Financial Statements...............................
9.10. Borrowing Base Certificates................................
9.11. Other Reports..............................................
9.12. Additional Information.....................................
9.13. Projected Operating Budget.................................
9.14. Notice of Suits, Adverse Events............................
9.15. ERISA Notices and Requests.................................
9.16. Additional Documents.......................................
X. EVENTS OF DEFAULT....................................................
XI. LENDERS' RIGHTS AND REMEDIES AFTER DEFAULT...........................
11.1. Rights and Remedies........................................
11.2. Agent's Discretion.........................................
11.3. Setoff.....................................................
11.4. Rights and Remedies not Exclusive..........................
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<PAGE>
XII. WAIVERS AND JUDICIAL PROCEEDINGS.....................................
12.1. Waiver of Notice...........................................
12.2. Delay......................................................
12.3. Jury Waiver................................................
XIII.EFFECTIVE DATE AND TERMINATION.............................
13.1. Term.......................................................
13.2. Termination................................................
XIV. REGARDING AGENT......................................................
14.1. Appointment................................................
14.2. Nature of Duties...........................................
14.3. Lack of Reliance on Agent and Resignation..................
14.4. Certain Rights of Agent....................................
14.5. Reliance...................................................
14.6. Notice of Default..........................................
14.7. Indemnification............................................
14.8. Agent in its Individual Capacity...........................
14.9. Delivery of Documents......................................
XV. MISCELLANEOUS........................................................
15.1. Governing Law..............................................
15.2. Entire Understanding.......................................
15.3. Successors and Assigns; Participations; New Lenders........
15.4. Application of Payments....................................
15.5. Indemnity..................................................
15.6. Notice.....................................................
15.7. Survival...................................................
15.8. Severability...............................................
15.9. Expenses...................................................
15.10. Injunctive Relief..................................
15.11. Consequential Damages..............................
15.12. Captions...........................................
15.13. Counterparts; Telecopied Signatures................
15.14. Construction.......................................
15.15. Confidentiality; Sharing Information...............
15.16. Publicity..........................................
15.17. Borrowing Agent; Obligations Joint and Several.....
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<PAGE>
List of Exhibits and Schedules
Exhibits
Exhibit 2.1(a) Form of Revolving Credit Note
Exhibit 2.3 Form of Term Note
Exhibit 5.5(b) Projections
Exhibit 7.11 Form of Landlord's Waiver
Exhibit 8.1(i) Form of Financial Condition Certificate
Exhibit 8.1(o) Form of Subordination Agreement
Exhibit 8.1(p)(i) Form of Guaranty
Exhibit 8.1(p)(ii) Form of Guarantor Security Agreement
Exhibit 9.10 Form of Borrowing Base Certificate
Exhibit 15.3 Form of Commitment Transfer Supplement
Schedules
Schedule 1.2 Permitted Encumbrances
Schedule 4.5 Equipment and Inventory Locations
Schedule 4.15(c) Location of Chief Executive Offices
Schedule 4.19 Real Property
Schedule 5.2(a) States of Qualification and Good Standing
Schedule 5.4 Federal Tax Identification Numbers
Schedule 5.6 Corporate Names
Schedule 5.7 Environmental
Schedule 5.8(b) Litigation, Liabilities
Schedule 5.8(d) Plans
Schedule 5.9 Intellectual Property
Schedule 5.10 Licenses and Permits
Schedule 5.14 Labor Disputes
Schedule 7.3 Guarantees
Schedule 7.8 Indebtedness
Schedule 7.10 Management Fees
Schedule 8.1 Landlord Waivers
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<PAGE>
REVOLVING CREDIT, TERM LOAN
AND
SECURITY AGREEMENT
Revolving Credit, Term Loan and Security Agreement dated as of May 17,
1999 among RICHTON INTERNATIONAL CORPORATION, a Delaware corporation
("Richton"), CENTURY SUPPLY CORP., a Michigan corporation ("Century"), and CBE
TECHNOLOGIES, INC., a Delaware corporation ("CBE") (collectively, the
"Borrowers"and individually a "Borrower"), the financial institutions which are
now or which hereafter become a party hereto (collectively, the "Lenders" and
individually a "Lender") and PNC BANK, NATIONAL ASSOCIATION, a national banking
association ("PNC"), as agent for Lenders (in such capacity, the "Agent").
IN CONSIDERATION of the mutual covenants and undertakings herein
contained, Borrowers, Lenders and Agent hereby agree as follows:
I. DEFINITIONS.
1.1. Accounting Terms. As used in this Agreement, any Other Document
(including, without limitation, the Notes), or any certificate, report or other
document made or delivered pursuant to this Agreement, accounting terms not
defined in Section 1.2 hereof or elsewhere in this Agreement and accounting
terms partly defined in Section 1.2 hereof to the extent not defined, shall have
the respective meanings given to them under GAAP; provided, however, whenever
such accounting terms are used for the purposes of determining compliance with
financial covenants in this Agreement, such accounting terms shall be defined in
accordance with GAAP as applied in preparation of the audited financial
statements of Borrowers for the fiscal year ended December 31, 1998.
1.2. General Terms. For purposes of this Agreement the following terms
shall have the following meanings:
"Accountants" shall have the meaning set forth in Section 9.7
hereof.
"Advance Rates" shall mean the Receivables Advance Rate and the
Inventory Advance Rate.
"Advances" shall mean and include the Revolving Advances and the
Term Loan.
"Advance Rates" shall have the meaning set forth in Section 2.1(a)
hereof.
"Affiliate" of any Person shall mean (a) any Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with such Person, or (b) any Person who is a director
or officer (i) of such Person, (ii) of any Subsidiary of such Person or (iii) of
any Person described in clause (a) above. For purposes of this definition,
control of a Person shall mean the power, direct or indirect, (x) to vote five
percent (5%) or more of the securities having ordinary voting power for the
election of directors of such Person, or (y) to direct or cause the direction of
the management and policies of such Person whether by contract or otherwise.
"Agent" shall have the meaning set forth in the preamble to this
Agreement and shall include its successors and assigns.
<PAGE>
"Aggregate Formula Amount" shall have the meaning set forth in
Section 2.1(a) hereof.
"Applicable Margin" shall mean with respect to the unpaid balance of
Advances that are Eurodollar Rate Loans, the applicable percentages set forth
below:
Applicable Margin Applicable Margin for
Leverage Ratio for the Term Loan Revolving Advances
-------------- ----------------- ------------------
greater than or equal to 2.5:1.0 3.00% 2.50%
less than 2.5:1.0 2.75% 2.25%
"Authority" shall have the meaning set forth in Section 4.19(d)
hereof.
"Base Rate" shall mean the base commercial lending rate of PNC as
publicly announced to be in effect from time to time, such rate to be adjusted
automatically, without notice, on the effective date of any change in such rate.
This rate of interest is determined from time to time by PNC as a means of
pricing some loans to its customers and is neither tied to any external rate of
interest or index nor does it necessarily reflect the lowest rate of interest
actually charged by PNC to any particular class or category of customers of PNC.
"Blocked Accounts" shall have the meaning set forth in Section
4.15(h) hereof.
"Borrowers" shall have the meaning set forth in the preamble to this
Agreement and shall include the successors and permitted assigns of such
Persons.
"Borrowers' Account" shall have the meaning set forth in Section 2.7
hereof.
"Borrowing Agent" shall mean Richton.
"Borrowing Base Certificates" shall mean the certificates delivered
by Borrowers pursuant to Sections 8.1(x), 8.1(y) and 9.10 hereof, in the form
attached hereto as Exhibit 9.10, or such other form as may be reasonably
acceptable to Agent.
"Business Day" shall mean with respect to Eurodollar Rate Loans, any
day on which commercial banks are open for domestic and international business,
including dealings in Dollar deposits in London, England and New York, New York
and with respect to all other matters, any day other than a day on which
commercial banks in New Jersey are authorized or required by law to close.
"Calculation Period" shall have the meaning set forth in Section
2.10(b) hereof.
"Capital Lease" shall mean (a) any lease of property, real or
personal, the obligations under which are capitalized on a consolidated balance
sheet of Richton and its Subsidiaries, and (b) any other such lease to the
extent that the then present value of the minimum rental commitment thereunder
should, in accordance with GAAP, be capitalized on a balance sheet of the
lessee.
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<PAGE>
"CBC" shall mean Creative Business Concepts, Inc., a California
corporation, and its successors and permitted assigns.
"CBE" shall have the meaning set forth in the preamble to this
Agreement and shall include its successors and permitted assigns.
"CBE Formula Amount" shall mean, at any time, an amount equal to the
sum of (i) the Receivables Advance Rate at such time times the Eligible
Receivables of CBE at such time, plus (ii) the lesser of (A) the Inventory
Advance Rate at such time times the value of the Eligible Inventory of CBE at
such time, or (B) one million dollars ($1,000,000), minus (iii) such reserves
with respect to CBE as Agent may reasonably and in good faith deem proper and
necessary from time to time.
"Century" shall have the meaning set forth in the preamble to this
Agreement and shall include its successors and permitted assigns.
"Century Formula Amount" shall mean, at any time, an amount equal to
the sum of (i) the Receivables Advance Rate at such time times the aggregate
Eligible Receivables of Century at such time, plus (ii) the lesser of (A) the
Inventory Advance Rate at such time times the aggregate value of the Eligible
Inventory of Century at such time, or (B) the difference between (1) twenty
million dollars ($20,000,000) and (2) the applicable amount at such time under
clause (ii) of the definition of "CBE Formula Amount" in this Section 1.2 (up to
a maximum of one million dollars ($1,000,000)), plus (iii) solely during the
Seasonal Advance Period, an additional amount equal to the Maximum Seasonal
Advance Amount, minus (iv) such reserves with respect to Century as Agent may
reasonably and in good faith deem proper and necessary from time to time.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, 42 U.S.C. Section 9601 et seq.
"Change of Control" shall mean (a) the occurrence of any event
(whether in one or more transactions) which results in a transfer of control of
Richton to any Person or group of Persons (within the meaning of Sections 13(d)
or 14(a) of the Securities Exchange Act of 1934, as amended), other than to a
member of the Sullivan Group, (b) the Board of Directors of Richton shall cease
to consist of a majority of Continuing Directors, or (c) any merger or
consolidation of or with any Borrower or Guarantor or sale of all or
substantially all of the property or assets of any Borrower or Guarantor, other
than a merger which constitutes a Permitted Acquisition in accordance with
Section 7.1 hereof, a merger of a Borrower with and into another Borrower or a
merger of Guarantor with and into a Borrower. For purposes of this definition,
"control of Richton" shall mean the power, direct or indirect, to (i) vote (x)
thirty percent (30%) or more of the securities having ordinary voting power for
the election of directors of Richton on a fully diluted basis.
"Charges" shall mean all taxes, charges, fees, imposts, levies or
other assessments, including, without limitation, all net income, gross income,
gross receipts, sales, use, ad valorem, value added, transfer, franchise,
profits, inventory, capital stock, license, withholding, payroll, employment,
social security, unemployment, excise, severance, stamp, occupation and property
taxes, custom duties, fees, assessments, liens, claims and charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts, imposed by any taxing or other authority, domestic or
foreign (including, without limitation, the Pension Benefit Guaranty Corporation
or any environmental agency or superfund), upon the Collateral, any Guarantor
Collateral any Borrower or Guarantor.
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<PAGE>
"Closing Date" shall mean May 17, 1999 or such other date as may be
agreed to by Agent and Borrowing Agent.
"Code" shall mean the Internal Revenue Code of 1986 and the
regulations promulgated thereunder.
"Collateral" shall mean and include:
(a) all Receivables;
(b) all Equipment;
(c) all General Intangibles;
(d) all Inventory; and
(e) all of Borrowers' right, title and interest in and to (i) goods
and other property including, but not limited to, all merchandise returned or
rejected by Customers, relating to or securing any of the Receivables; (ii) all
of Borrowers' rights as a consignor, a consignee, an unpaid vendor, mechanic,
artisan, or other lienor, including stoppage in transit, setoff, detinue,
replevin, reclamation and repurchase; (iii) all additional amounts due to any
Borrower from any Customer relating to the Receivables; (iv) other property,
including warranty claims, relating to any goods securing this Agreement; (v)
all of Borrowers' contract rights, rights of payment which have been earned
under a contract right, instruments, documents, chattel paper, warehouse
receipts, deposit accounts, money, securities and investment property,
including, without limitation, promissory notes evidencing loans from each
Borrower to another Borrower, Guarantor or any other Person; (vi) if and when
obtained by any Borrower, all property of third parties in which such Borrower
has been granted a lien or security interest as security for the payment or
enforcement of Receivables; and (vii) any other goods or personal property now
owned or hereafter acquired in which any Borrower has expressly granted a
security interest or may in the future grant a security interest to Agent
hereunder, or in any amendment or supplement hereto or thereto;
(f) all of Borrowers' files, correspondence, records, books of
account, business papers, computers, computer software (owned by Borrower or in
which it has an interest), computer programs, tapes, disks and documents
relating to (a), (b), (c), (d) or (e) above; and
(g) all proceeds and products of (a), (b), (c), (d), (e) and (f)
above in whatever form, including, but not limited to: cash, deposit accounts
(whether or not comprised solely of proceeds), certificates of deposit,
insurance proceeds (including hazard, flood and credit insurance), negotiable
instruments and other instruments for the payment of money, chattel paper,
security agreements, documents, eminent domain proceeds, condemnation proceeds
and tort claim proceeds.
"Commitment Percentage" of any Lender shall mean the percentage set
forth below such Lender's name on the signature page hereof as same may be
adjusted upon any assignment by a Lender pursuant to Section 15.3(b) hereof.
"Commitment Transfer Supplement" shall mean a document in the form
of Exhibit 15.3 hereto, properly completed and otherwise in form and substance
reasonably satisfactory to Agent by which
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<PAGE>
the Purchasing Lender purchases and assumes a portion of the obligation of
Lenders to make Advances under this Agreement.
"Consents" shall mean all filings and all licenses, permits,
consents, approvals, authorizations, qualifications and orders of governmental
authorities and other third parties, domestic or foreign, necessary to carry on
any Borrower's or Guarantor's business, including, without limitation, any
Consents required under all applicable federal, state or other applicable law.
"Consideration" shall mean with respect to any Permitted
Acquisition, the aggregate, without duplication, of (a) the cash paid by Century
or CBE, directly or indirectly, to the seller in connection therewith, (b) the
Indebtedness incurred or assumed by Century or CBE in connection therewith,
whether in favor of the seller or otherwise and whether fixed or contingent, (c)
any guaranty given or incurred by Century or CBE in connection therewith, and
(d) any other consideration given or obligation incurred by Century or CBE in
connection therewith.
"Continuing Directors" shall mean the directors of Richton on the
Closing Date and each other director if such director's nomination for election
to the Board of Directors of Richton is recommended by a majority of the then
Continuing Directors.
"Contract Rate" shall have the meaning set forth in Section 3.1
hereof.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with any Borrower or Guarantor, are treated as a
single employer under Section 414 of the Code.
"Counterparty" shall mean PNC Bank, National Association, as
counterparty under the Interest Rate Protection Agreement with Borrowers.
"Cure Advance" shall have the meaning set forth in Section 2.13(b)
hereof.
"Customer" shall mean and include the account debtor with respect to
any Receivable and/or the prospective purchaser of goods, services or both with
respect to any contract or contract right, and/or any party who enters into any
contract or other arrangement with any Borrower, pursuant to which such Borrower
is to deliver any personal property or perform any services.
"Default" shall mean an event which, with the giving of notice or
passage of time or both, would constitute an Event of Default.
"Default Rate" shall have the meaning set forth in Section 3.1
hereof.
"Defaulting Lender" shall have the meaning set forth in Section
2.13(a) hereof.
"Dollar" and the sign "$" shall mean lawful money of the United
States of America.
"Domestic Rate Loan" shall mean any Advance that bears interest
based upon the Base Rate.
"Early Termination Date" shall have the meaning set forth in Section
13.1 hereof.
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<PAGE>
"Earnings Before Interest and Taxes" shall mean for any period the
sum of (i) the net income (or loss) of Richton and its Subsidiaries on a
consolidated basis for such period, plus (ii) the interest expense of Richton
and its Subsidiaries on a consolidated basis for such period, plus (iii) the
charges against income of Richton and its Subsidiaries on a consolidated basis
for such period for federal, state and local taxes actually paid and/or accrued.
"EBITDA" shall mean for any period the sum of (i) Earnings Before
Interest and Taxes for such period plus (ii) the depreciation expenses of
Richton and its Subsidiaries on a consolidated basis for such period, plus (iii)
the amortization expenses of Richton and its Subsidiaries on a consolidated
basis for such period.
"Eligible Inventory" shall mean and include finished goods Inventory
(i.e. excluding raw materials and work in process) of each Borrower valued at
the lower of cost or market value, determined on a first-in-first-out basis,
which is not, in Agent's reasonable opinion, obsolete, slow moving or
unmerchantable and which Agent, in its reasonable discretion, shall not deem
ineligible Inventory, based on such considerations as Agent may from time to
time deem appropriate including, without limitation, whether the Inventory is
subject to a perfected, first priority security interest in favor of Agent
(subject to Permitted Encumbrances) and whether the Inventory conforms to all
standards imposed by any governmental agency, division or department thereof
which has regulatory authority over such goods or the use or sale thereof.
Eligible Inventory shall include all Inventory in-transit for which title has
passed to a Borrower, which is insured to the full value thereof and for which
Agent shall have in its possession (a) all negotiable bills of lading properly
endorsed and (b) all non-negotiable bills of lading issued in Agent's name.
"Eligible Receivables" shall mean and include with respect to a
Borrower, each Receivable of such Borrower arising in the ordinary course of
Borrowers' business and which Agent, in its reasonable judgment, shall deem to
be an Eligible Receivable, based on such considerations as Agent may from time
to time deem appropriate. A Receivable shall not be deemed eligible unless such
Receivable is subject to Agent's first priority perfected security interest and
no other Lien (other than Permitted Encumbrances), and is evidenced by an
invoice or other documentary evidence reasonably satisfactory to Agent. In
addition, no Receivable shall be an Eligible Receivable if:
(a) it arises out of a sale made by any Borrower to an Affiliate of
any Borrower or to a Person controlled by an Affiliate of any Borrower;
(b) it is due or unpaid more than ninety (90) days after the due
date thereof or more than one hundred thirty (130) days after the original
invoice date thereof;
(c) fifty percent (50%) or more of the Receivables from such
Customer are not deemed Eligible Receivables hereunder (if this clause (c) is
violated, none of the Receivables owing from such Customer shall be Eligible
Receivables);
(d) any covenant, representation or warranty contained in Article IV
(other than Section 4.19) or V, or Section 6.4, 9.2 or 9.6 of this Agreement
with respect to such Receivable has been breached;
(e) the Customer shall (i) apply for, suffer, or consent to the
appointment of, or the taking of possession by, a receiver, custodian, trustee
or liquidator of itself or of all or a substantial part of its property or call
a meeting of its creditors, (ii) admit in writing its inability, or be generally
unable, to pay its
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<PAGE>
debts as they become due or cease operations of its present business, (iii) make
a general assignment for the benefit of creditors, (iv) commence a voluntary
case under any state or federal bankruptcy laws (as now or hereafter in effect),
(v) be adjudicated a bankrupt or insolvent, (vi) file a petition seeking to take
advantage of any other law providing for the relief of debtors, (vii) acquiesce
to, or fail to have dismissed, any petition which is filed against it in any
involuntary case under such bankruptcy laws, or (viii) take any action for the
purpose of effecting any of the foregoing;
(f) the sale is to a Customer outside the continental United States
of America, unless the sale is on letter of credit, guaranty or acceptance
terms, in each case acceptable to Agent in its reasonable discretion, and such
letter of credit, guaranty or acceptance has been assigned to Agent, for the
ratable benefit of Lenders, in a manner reasonably acceptable to Agent;
(g) the sale to the Customer is on a bill-and-hold, guaranteed sale,
sale-and-return, sale on approval, consignment or any other repurchase or return
basis or is evidenced by chattel paper;
(h) Agent believes, in its reasonable judgment, that collection of
such Receivable is insecure or that such Receivable may not be paid by reason of
the Customer's financial inability to pay;
(i) the Customer is the United States of America, any state or any
department, agency or instrumentality of any of them, unless the appropriate
Borrower assigns its right to payment of such Receivable to Agent pursuant to
the Assignment of Claims Act of 1940, as amended (31 U.S.C. Sub-Section 3727 et
seq. and 41 U.S.C. Sub-Section 15 et seq.) or has otherwise complied with other
similar applicable statutes or ordinances;
(j) the goods giving rise to such Receivable have not been shipped
and delivered to and accepted by the Customer or the services giving rise to
such Receivable have not been performed by a Borrower and accepted by the
Customer (except, in the case of Receivables of CBE arising under maintenance
contracts or similar arrangements, to the extent that such Receivables have been
earned by a Borrower in accordance with GAAP) or the Receivable otherwise does
not represent a final sale;
(k) the aggregate Receivables from any Customer exceed twenty
percent (20%) of all Eligible Receivables of a Borrower, to the extent such
Receivables exceed such limit;
(l) the Receivable is subject to any offset, deduction, defense,
dispute or counterclaim (but only to the extent of such offset, deduction,
defense, dispute or counterclaim), the Customer is also a creditor or supplier
of any Borrower (unless such Customer has executed a no offset letter reasonably
satisfactory to Agent) or the Receivable is contingent in any respect or for any
reason;
(m) any Borrower has made any agreement with the Customer for any
deduction therefrom, except for discounts or allowances made in the ordinary
course of business for prompt payment, all of which discounts or allowances are
reflected in the calculation of the face value of each respective invoice
related thereto;
(n) any return, rejection or repossession of the merchandise
relating to the Receivable has occurred;
(o) the Receivable is not payable to a Borrower; or
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<PAGE>
(p) the Receivable is not otherwise satisfactory to Agent as
determined in good faith by Agent in the exercise of its discretion in a
reasonable manner.
"Environmental Complaint" shall have the meaning set forth in
Section 4.19(d) hereof.
"Environmental Laws" shall mean all federal, state and local
environmental, land use, zoning, health, chemical use, safety and sanitation
laws, statutes, ordinances and codes relating to the protection of the
environment and/or governing the use, storage, treatment, generation,
transportation, processing, handling, production or disposal of Hazardous
Substances and the rules, regulations, policies, guidelines, interpretations,
decisions, orders and directives of federal, state and local governmental
agencies and authorities with respect thereto.
"Equipment" shall mean and include all of Borrowers' goods (other
than Inventory) including, without limitation, all equipment, machinery,
apparatus, motor vehicles, fittings, furniture, furnishings, fixtures, parts,
accessories and all replacements and substitutions therefor or accessions
thereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, and the rules and regulations promulgated thereunder.
"Eurodollar Rate" shall mean for any Eurodollar Rate Loan for the
then current Interest Period relating thereto, the interest rate per annum
determined by PNC by dividing (the resulting quotient rounded upwards, if
necessary, to the nearest 1/100th of 1% per annum) (i) the rate of interest
determined by PNC in accordance with its usual procedures (which determination
shall be conclusive absent manifest error) to be the eurodollar rate two (2)
Business Days prior to the first day of such Interest Period for an amount
comparable to such Eurodollar Rate Loan and having a borrowing date and a
maturity comparable to such Interest Period by (ii) a number equal to 1.00 minus
the Reserve Percentage.
"Eurodollar Rate Loan" shall mean an Advance at any time that bears
interest based on the Eurodollar Rate.
"Event of Default" shall have the meaning set forth in Article X
hereof.
"Excess Cash Flow" shall mean and include, with respect to any
fiscal period, EBITDA during such period, minus (i) actual capital expenditures
made by Richton and its Subsidiaries on a consolidated basis during such period
which were not financed, (ii) cash payments of federal, state and local income
taxes and the Michigan Single Use Business Tax made by Richton and its
Subsidiaries on a consolidated basis during such period, (iii) the interest
expense of Richton and its Subsidiaries on a consolidated basis during such
period, and (iv) scheduled principal payments with respect to Indebtedness for
borrowed money and capitalized leases made by Richton and its Subsidiaries on a
consolidated basis during such period.
"Federal Funds Rate" shall mean, for any day, the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or if such rate is not so published for any
day which is a Business Day, the average of quotations for such day on such
transactions received by PNC from three Federal funds brokers of recognized
standing selected by PNC.
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"Fee Letter" shall mean the letter dated April 27, 1999, among
Borrowers and PNC.
"Fixed Charge Coverage Ratio" shall mean and include, with respect
to any fiscal period, the ratio of (a) EBITDA during such period, minus (i)
actual capital expenditures made by Richton and its Subsidiaries on a
consolidated basis during such period which were not financed, and (ii) cash
payments of federal, state and local income taxes made by Richton and its
Subsidiaries on a consolidated basis during such period, to (b) the sum of (i)
the interest expense of Richton and its Subsidiaries on a consolidated basis
during such period, and (ii) scheduled principal payments with respect to
Indebtedness for borrowed money and capitalized leases made by Richton and its
Subsidiaries on a consolidated basis during such period.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"General Intangibles" shall mean and include all of Borrowers'
general intangibles including, without limitation, all choses in action, causes
of action, corporate or other business records, inventions, designs, equipment
formulations, manufacturing procedures, quality control procedures, patents or
applications therefor, trademarks or applications therefor, service marks or
applications therefor, copyrights or applications therefor, trade secrets,
goodwill, design rights, registrations, licenses, franchises, customer lists,
tax refunds, tax refund claims, computer programs, all claims under guaranties,
security interests or other security held by or granted to any Borrower to
secure payment of any of the Receivables by a Customer, all rights of
indemnification and all other intangible property of every kind and nature
(other than Receivables).
"Governmental Body" shall mean any nation or government, any state
or other political subdivision thereof or any entity exercising the legislative,
judicial, regulatory or administrative functions of or pertaining to a
government.
"Guarantor Collateral" shall mean "Collateral," as defined in the
Guarantor Security Agreement.
"Guarantor" shall mean RHC.
"Guarantor Security Agreement" shall mean the Guarantor Security
Agreement among Guarantor and Agent substantially in the form attached hereto as
Exhibit 8.1(p)(ii), as amended, supplemented or modified from time to time.
"Guaranty" shall mean the Guaranty made by Guarantor in favor of
Agent and Lenders substantially in the form attached hereto as Exhibit
8.1(p)(i), as amended, supplemented or modified from time to time.
"Hazardous Discharge" shall have the meaning set forth in Section
4.19(d) hereof.
"Hazardous Substance" shall mean, without limitation, any flammable
explosives, radon, radioactive materials, asbestos, urea formaldehyde foam
insulation, polychlorinated biphenyls, petroleum and petroleum products,
methane, hazardous materials, Hazardous Wastes, hazardous or Toxic Substances or
related materials as defined in CERCLA, the Hazardous Materials Transportation
Act, as amended (49
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U.S.C. Sections 1801, et seq.), RCRA, or any other applicable Environmental Law
and in the regulations adopted pursuant thereto.
"Hazardous Wastes" shall mean all waste materials regulated under
CERCLA, RCRA or applicable state law, and any other applicable Federal and state
laws now in force or hereafter enacted relating to hazardous waste disposal.
"HTAC" shall mean HT Acquisition Corp., a Delaware corporation, and
its successors and permitted assigns.
"Indebtedness" of a Person at a particular date shall mean all
obligations of such Person which in accordance with GAAP would be classified
upon a balance sheet as liabilities (except capital stock and surplus earned or
otherwise) and in any event, without limitation by reason of enumeration, shall
include all indebtedness, debt and other similar monetary obligations of such
Person whether direct or guaranteed, and all premiums, if any, due at the
required prepayment dates of such indebtedness, and all indebtedness secured by
a Lien on assets owned by such Person, whether or not such indebtedness actually
shall have been created, assumed or incurred by such Person. Any indebtedness of
such Person resulting from the acquisition by such Person of any assets subject
to any Lien shall be deemed, for the purposes hereof, to be the equivalent of
the creation, assumption and incurring of the indebtedness secured thereby,
whether or not actually so created, assumed or incurred.
"Interest Period" shall mean the interest period applicable to any
Eurodollar Rate Loan determined in accordance with Sections 2.2 and 3.2 hereof.
"Interest Rate Protection Agreement" shall mean an interest rate
swap agreement, cap agreement or collar agreement or similar arrangement entered
into by Borrowers and a Counterparty covering the Term Loan and having a minimum
term of five (5) years, having the effect of fixing Borrowers' cost of borrowing
the Term Loan at a rate reasonably acceptable to Borrowers and Agent, in form
and substance reasonably satisfactory to Agent, as amended, supplemented or
modified from time to time.
"Inventory" shall mean and include all of Borrowers' goods,
merchandise and other personal property, wherever located, to be furnished under
any contract of service or held for sale or lease, all raw materials, work in
process, finished goods and materials and supplies of any kind, nature or
description which are or might be used or consumed in Borrowers' business or
used in selling or furnishing such goods, merchandise and other personal
property, and all documents of title or other documents representing them.
"Inventory Advance Rate" shall have the meaning set forth in Section
2.1(a)(y)(ii) hereof.
"Lender" and "Lenders" shall have the meaning ascribed to such term
in the preamble to this Agreement and shall include each Person which becomes a
transferee, successor or assignee of any Lender.
"Leverage Ratio" shall mean and include, as of the end of each
fiscal quarter of Borrowers, the ratio of (a) the average outstanding principal
amount of all Advances during the fiscal quarter of Borrowers then ended, to (b)
EBITDA for the period of four (4) consecutive fiscal quarters of Borrowers then
ended.
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"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, security interest, lien (whether statutory or
otherwise) or encumbrance, or preference, priority or other security agreement
or preferential arrangement held or asserted in respect of any asset of any kind
or nature whatsoever including, without limitation, any conditional sale or
other title retention agreement, any lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement under the Uniform Commercial Code or comparable
law of any jurisdiction.
"Material Adverse Effect" shall mean a material adverse effect on
(a) the condition (financial or otherwise), operations, assets or business of
(i) Century or (ii) Borrowers taken as a whole, (b) Borrowers' ability to pay
the Obligations in accordance with the terms thereof, (c) the value of the
Collateral and the Guarantor Collateral, taken as a whole, Agent's Liens on the
Collateral and the Guarantor Collateral, taken as a whole, or the priority of
any such Lien, or (d) the practical realization of the benefits of Agent's and
each Lender's rights and remedies under this Agreement and the Other Documents.
"Maximum Loan Amount" shall mean sixty-seven million five hundred
thousand dollars ($67,500,000), less repayments of the Term Loan.
"Maximum Revolving Advance Amount" shall mean sixty million dollars
($60,000,000).
"Maximum Seasonal Advance Amount" shall mean five million dollars
($5,000,000).
"Monthly Advances" shall have the meaning set forth in Section 3.1
hereof.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Sections 3(37) and 4001(a)(3) of ERISA.
"Non-Pro Rata Advance" shall have the meaning set forth in Section
2.13(b) hereof.
"Notes" shall mean collectively, the Term Note and the Revolving
Credit Note.
"Obligations" shall mean and include any and all of Borrowers'
obligations and/or liabilities to Agent or Lenders of every kind, nature and
description, direct or indirect, secured or unsecured, joint, several, joint and
several, absolute or contingent, due or to become due, now existing or hereafter
arising, contractual or tortious, liquidated or unliquidated, whether direct or
indirect (including, without limitation, any interest accruing thereon after
maturity, or after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding relating to any Borrower,
whether or not a claim for post-petition or post-filing interest is allowed in
such proceeding), whether arising out of overdrafts on deposit or other accounts
or electronic funds transfers (whether through automated clearinghouses or
otherwise) or out of Agent's or any Lender's non-receipt of or inability to
collect funds or otherwise not being made whole in connection with depository
transfer check or other similar arrangements, in any case arising under this
Agreement or any Other Document, including, without limitation, those arising
under the Interest Rate Protection Agreement or any other present or future
interest, currency or equity swap, future, option or other similar agreement or
arrangement.
"Other Documents" shall mean the Notes, the Subordination Agreement,
the Guaranty, the Guarantor Security Agreement, the Interest Rate Protection
Agreement, any other present or future interest, currency or equity swap,
future, option or other similar agreement or arrangement, any lock-box, blocked
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account or similar agreement relating to the Blocked Accounts, and any and all
other agreements, instruments and documents, including, without limitation,
guaranties, pledges, powers of attorney, consents, and all other documents or
agreements heretofore, now or hereafter executed by any Borrower or Guarantor
and/or delivered to Agent or any Lender in respect of the Transactions.
"Parent" of any Person shall mean a corporation or other entity
owning, directly or indirectly at least fifty percent (50%) of the shares of
stock or other ownership interests having ordinary voting power to elect a
majority of the directors of the Person, or other Persons performing similar
functions for any such Person.
"Participant" shall mean each Person who shall be granted the right
by any Lender to participate in any of the Advances and who shall have entered
into a participation agreement in form and substance satisfactory to such
Lender.
"Payment Office" shall mean initially Two Tower Center Boulevard,
East Brunswick, New Jersey 08816; thereafter, such other office of Agent, if
any, which Agent may designate by notice to Borrowing Agent and to each Lender
to be the Payment Office.
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor agency.
"Permitted Acquisition" shall mean an acquisition by Century or CBE,
by purchase or by merger, of (1) all of the equity interests of another Person
or (2) substantially all of the assets of another Person or of a business or
division of another Person; provided that each of the following requirements is
met:
(a) if Century or CBE is acquiring all of the equity interests in
such Person, the acquired Person shall execute a guaranty in favor of Agent and
Lenders, substantially in the form attached hereto as Exhibit 8.1(p)(i), and the
acquired Person shall grant and cause to be perfected, first priority Liens
(subject to Permitted Encumbrances) in favor of Agent for the ratable benefit of
Lenders, in the assets of such Person (other than the real property and any
property determined by Agent, in its sole discretion, to be immaterial) on or
before the date of such Permitted Acquisition or, with the consent of the
Required Lenders which may be withheld in its sole discretion, within thirty
(30) days following the date of such Permitted Acquisition;
(b) if Century or CBE is acquiring substantially all of assets of
such Person or of a business or division of such Person, such Borrower shall
grant and cause to be perfected, first priority Liens (subject to Permitted
Encumbrances) on the assets acquired from such Person (other than the real
property and any property determined by the Agent, in its sole discretion, to be
immaterial) in favor of Agent, for the ratable benefit of Lenders, on or before
the date of such Permitted Acquisition or, with the consent of the Agent which
may be withheld in its sole discretion, within thirty (30) days following the
date of such Permitted Acquisition;
(c) the board of directors or other equivalent governing body of
such Person shall have approved such Permitted Acquisition and, if Century or
CBE shall use any portion of the Advances to fund such Permitted Acquisition,
Century or CBE, as the case may be, also shall have delivered to the Agent
written evidence of the approval of the board of directors (or equivalent body)
of such Person for such Permitted Acquisition;
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(d) the business acquired, or the business conducted by the Person
whose ownership interests are being acquired, as applicable, shall be
substantially the same as one or more line or lines of business conducted by
Century or CBE, as the case may be, and shall have a positive operating profit
and positive net worth (e.g. assets less liabilities);
(e) no Default or Event of Default shall exist immediately prior to
and after giving effect to such Permitted Acquisition; and
(f) Century or CBE, as the case may be, shall deliver to Agent at
least five (5) Business Days before such Permitted Acquisition copies of any
agreements entered into or proposed to be entered into by any Borrower in
connection with such Permitted Acquisition and shall deliver to Agent such other
information about such Person or its assets as Agent may reasonably request.
"Permitted Encumbrances" shall mean (a) Liens in favor of Agent for
the benefit of Agent and Lenders; (b) Liens for taxes, assessments or other
governmental charges not delinquent or being contested in good faith by a
Borrower or Guarantor and by appropriate proceedings and with respect to which
proper reserves have been taken by such Borrower or by Guarantor in accordance
with GAAP; (c) deposits or pledges to secure obligations under worker's
compensation, social security or similar laws, or under unemployment insurance;
(d) deposits or pledges to secure bids, tenders, contracts (other than contracts
for the payment of money), leases, statutory obligations, surety and appeal
bonds and other obligations of like nature arising in the ordinary course of a
Borrower's or Guarantor's business; (e) judgment Liens that have been stayed or
bonded and mechanics', workers', materialmen's or other like Liens arising in
the ordinary course of a Borrower's or Guarantor's business with respect to
obligations which are not due or which are being contested by a Borrower or
Guarantor in good faith and by appropriate proceedings and with respect to which
proper reserves have been taken by such Borrower or by Guarantor in accordance
with GAAP; (f) Liens placed upon fixed assets hereafter acquired by a Borrower
or Guarantor to secure a portion of the purchase price thereof, provided that
(x) any such Lien shall not encumber any other property of such Borrower or of
Guarantor and (y) the aggregate amount of Indebtedness secured by such Liens
incurred as a result of such purchases during any fiscal year shall not exceed
the amount provided for in Section 7.6 hereof; and (g) Liens disclosed on
Schedule 1.2.
"Person" shall mean any individual, sole proprietorship,
partnership, corporation, business trust, joint stock company, trust,
unincorporated organization, association, limited liability company,
institution, public benefit corporation, joint venture, entity or government
(whether Federal, state, county, city, municipal or otherwise, including any
instrumentality, division, agency, body or department thereof).
"Plan" shall mean any employee benefit plan within the meaning of
Section 3(2) of ERISA, maintained for employees of any Borrower or any member of
the Controlled Group or any such Plan to which Borrower or any member of the
Controlled Group is required to contribute on behalf of any of its employees.
"Pro Forma Balance Sheets" shall have the meaning set forth in
Section 5.5(a) hereof.
"Pro Forma Financial Statements" shall have the meaning set forth in
Section 5.5(b) hereof.
"Projections" shall have the meaning set forth in Section 5.5(b)
hereof.
"Purchasing Lender" shall have the meaning set forth in Section
15.3(c) hereof.
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"RCRA" shall mean the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq.
"Real Property" shall mean all of Borrowers' and Guarantor's right,
title and interest in and to all now or hereafter owned or leased premises,
including, without limitation, the owned or leased premises identified on
Schedule 4.19 hereto.
"Receivables" shall mean and include all of Borrowers' accounts,
contract rights, instruments (including those evidencing indebtedness owed to
any Borrower by its Affiliates), documents, chattel paper, general intangibles
relating to accounts, drafts and acceptances, and all other forms of obligations
owing to any Borrower arising out of or in connection with the sale or lease of
Inventory or the rendition of services, all guarantees and other security
therefor, whether secured or unsecured and whether or not specifically sold or
assigned to Agent hereunder.
"Receivables Advance Rate" shall have the meaning set forth in
Section 2.1(a)(y)(i) hereof.
"Release" shall have the meaning set forth in Section 5.7(c)(i)
hereof.
"Reportable Event" shall mean a reportable event described in
Section 4043(b) of ERISA or the regulations promulgated thereunder (other than
an event for which the thirty (30) day notice requirement has been waived).
"Required Lenders" shall mean, at any time, Lenders holding at least
sixty-six and two-thirds percent (66-2/3%) of the Advances at such time and, if
no Advances are outstanding, shall mean Lenders holding sixty-six and two-thirds
percent (66-2/3%) of the Commitment Percentages at such time.
"Reserve Percentage" shall mean the maximum effective percentage in
effect on any day as prescribed by the Board of Governors of the Federal Reserve
System (or any successor) for determining the reserve requirements (including,
without limitation, supplemental, marginal and emergency reserve requirements)
with respect to eurocurrency funding.
"Revolving Advances" shall mean Advances made other than the Term
Loan.
"Revolving Credit Note" shall mean, collectively, the promissory
notes referred to in Section 2.1(a) hereof.
"Revolving Interest Rate" shall mean an interest rate per annum
equal to (a) the Base Rate with respect to Domestic Rate Loans, or (b) the sum
of the Eurodollar Rate plus the Applicable Margin with respect to Eurodollar
Rate Loans, as applicable.
"RHC" shall mean Richton Holding Corp., a Delaware corporation, and
its successors and permitted assigns.
"Richton" shall have the meaning set forth in the preamble to this
Agreement and shall include its successors and permitted assigns.
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"Seasonal Advance Period" shall mean the period each year commencing
not later than January 1 of such year and ending one hundred eighty (180) days
thereafter, but in no event later than July 31 of such year. Subject to the
foregoing, the Seasonal Advance Period shall commence on the date the Borrowing
Agent, on behalf of Century, requests a Revolving Advance pursuant to Section
2.2 hereof which consists, in part, of the amount referred to in Section
2.1(a)(y)(iii) hereof.
"Settlement Date" shall mean the Closing Date and thereafter
Wednesday of each week unless such day is not a Business Day in which case it
shall be the next succeeding Business Day.
"Subordination Agreement" shall mean the Subordination Agreement
made by Sullivan in favor of Agent and Lenders substantially in the form
attached hereto as Exhibit 8.1(o), as amended, supplemented or modified from
time to time.
"Subsidiary" shall mean a corporation or other entity of whose
shares of stock or other ownership interests having ordinary voting power (other
than stock or other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the directors of such
corporation, or other Persons performing similar functions for such entity, are
owned, directly or indirectly, by such Person.
"Sullivan" shall mean Fred R. Sullivan.
"Sullivan Group" shall mean (a) Sullivan, (b) any immediate family
member of Sullivan, and (c) any Person as to which Sullivan and/or any immediate
family member of Sullivan is/are the sole trustee(s) or has/have the sole power
to manage the business and affairs of such Person.
"Term" shall have the meaning set forth in Section 13.1 hereof.
"Term Loan" shall mean the Advance made pursuant to Section 2.3
hereof.
"Term Loan Rate" shall mean an interest rate per annum equal to (a)
the sum of the Base Rate plus one-half of one percent (1/2 of 1%) with respect
to Domestic Rate Loans, or (b) the sum of the Eurodollar Rate plus the
Applicable Margin with respect to Eurodollar Rate Loans, as applicable.
"Term Note" shall mean the promissory notes described in Section 2.3
hereof.
"Termination Event" shall mean (a) a Reportable Event with respect
to any Plan or Multiemployer Plan; (b) the withdrawal of a Borrower, Guarantor
or any member of the Controlled Group from a Plan or Multiemployer Plan during a
plan year in which such entity was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA; (c) the providing of notice of intent to terminate
a Plan in a distress termination described in Section 4041(c) of ERISA; (d) the
institution by the PBGC of proceedings to terminate a Plan or Multiemployer
Plan; (e) any event or condition (i) that might constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Plan or Multiemployer Plan, or (ii) that might result in
termination of a Multiemployer Plan pursuant to Section 4041A of ERISA; or (f)
the partial or complete withdrawal within the meaning of Sections 4203 and 4205
of ERISA, of a Borrower, Guarantor or any member of the Controlled Group from a
Multiemployer Plan.
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"Toxic Substance" shall mean and include any material present on the
Real Property which has been shown to have significant adverse effect on human
health or which is subject to regulation under the Toxic Substances Control Act
(TSCA), 15 U.S.C. Section 2601 et seq., applicable state law, or any other
applicable Federal or state laws now in force or hereafter enacted relating to
toxic substances. "Toxic Substance" includes but is not limited to asbestos,
polychlorinated biphenyls (PCBs) and lead-based paints.
"Transactions" shall mean the transactions contemplated by this
Agreement.
"Transferee" shall have the meaning set forth in Section 15.3(b)
hereof.
"Undrawn Availability" at the date of the initial Advance hereunder
shall mean an amount equal to (a) the lesser of (i) the Aggregate Formula Amount
at such date or (ii) the Maximum Revolving Advance Amount, minus (b) the sum of
(i) the outstanding amount of Revolving Advances, plus (ii) all amounts due and
owing to Borrowers' trade creditors which are unpaid for more than sixty (60)
days after the original due date, plus (iii) fees and expenses to Agent and
Lenders for which Borrowers are liable but which have not been paid or charged
to Borrowers' Account.
"Week" shall mean the time period commencing with the opening of
business on a Wednesday and ending on the end of business the following Tuesday.
1.3. Uniform Commercial Code Terms. All terms used herein and defined in
the Uniform Commercial Code as adopted in the State of New York shall have the
meaning given therein unless otherwise defined herein.
1.4. Certain Matters of Construction. The terms "herein", "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a whole
and not to any particular section, paragraph or subdivision. Any pronoun used
shall be deemed to cover all genders. Wherever appropriate in the context, terms
used herein in the singular also include the plural and vice versa. All
references to statutes and related regulations shall include any amendments of
same and any successor statutes and regulations. Unless otherwise provided, all
references to any instruments or agreements, including, without limitation,
references to any of the Other Documents, shall include any and all
modifications or amendments thereto and any and all extensions or renewals
thereof.
II. ADVANCES, PAYMENTS.
2.1. (a) Revolving Advances. Subject to the terms and conditions set forth
in this Agreement, each Lender, severally and not jointly, will make Revolving
Advances to Borrowers in aggregate amounts outstanding at any time equal to such
Lender's Commitment Percentage of the lesser of (x) the Maximum Revolving
Advance Amount or (y) an amount equal to the sum of:
(i) up to eighty-five percent (85%), subject to the provisions of
Section 2.1(b) hereof ("Receivables Advance Rate"), of Eligible
Receivables of all Borrowers at such time, plus
(ii) up to the lesser of (A) sixty percent (60%), subject to the
provisions of Section 2.1(b) hereof ("Inventory Advance Rate"), of
the value of the Eligible Inventory of all
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Borrowers at such time or (B) twenty million dollars ($20,000,000)
in the aggregate at any one time, plus
(iii) solely during the Seasonal Advance Period, an additional
amount equal to the Maximum Seasonal Advance Amount (provided that
the amount referred to in this Section 2.1(a)(y)(iii) (A) may only
be advanced to Century and (B) may not be advanced at the beginning
of any Seasonal Advance Period prior to receipt by Agent of the
preliminary monthly unaudited financial statements for December of
the prior fiscal year of Borrowers to enable Agent to preliminarily
determine compliance with Sections 6.10 and 6.11 hereof), minus
(iv) such reserves as Agent may reasonably and in good faith deem
proper and necessary from time to time.
The amount derived from the sum of (x) Sections 2.1(a)(y)(i), (ii)
and (iii) hereof , minus (y) Section 2.1(a)(y)(iv) hereof at any time and from
time to time shall be referred to as the "Aggregate Formula Amount". The
Revolving Advances shall be evidenced by the promissory note ("Revolving Credit
Note") substantially in the form attached hereto as Exhibit 2.1(a).
Notwithstanding the foregoing, in no event shall the Aggregate
balance of outstanding Revolving Advances to any Borrower exceed the amount set
forth in Section 2.4 hereof.
(b) Discretionary Rights. The Advance Rates may be increased or
decreased by Agent at any time and from time to time in good faith and in the
exercise of its reasonable discretion. Each Borrower consents to any such
increases or decreases and acknowledges that decreasing the Advance Rates or
increasing the reserves may limit or restrict Advances requested by Borrowing
Agent. Agent shall give Borrowing Agent five (5) days prior written notice of
its intention to decrease the Advance Rates.
2.2. Procedure for Revolving Advances Borrowing.
(a) During the Term, Borrowing Agent, on behalf of Century or CBE,
may notify Agent in writing (or by telephone and promptly confirmed in writing)
prior to 11:00 a.m. (New Jersey time) on a Business Day of Borrowing Agent's
request to incur, on that day, a Revolving Advance hereunder. Borrowing Agent
may not request Revolving Advances on behalf of Richton. Should any amount
required to be paid as interest hereunder, or as fees or other charges under
this Agreement or any Other Document, or with respect to any other Obligation,
become due, same shall be deemed a request for a Revolving Advance as of the
date such payment is due, in the amount required to pay in full such interest,
fee, charge or Obligation, and such request shall be irrevocable. No Revolving
Advance shall be made available to Borrowers during the continuance of an Event
of Default.
(b) Notwithstanding the provisions of (a) above, in the event any
Borrower desires to obtain a Eurodollar Rate Loan, Borrowing Agent, on behalf of
such Borrower, shall give Agent at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing), specifying (i) the
date of the proposed borrowing (which shall be a Business Day), (ii) the type of
borrowing and the amount on the date of such Revolving Advance to be borrowed,
which amount shall be an integral multiple of one million dollars ($1,000,000),
and (iii) the duration of the first Interest Period therefor.
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2.3. Term Loan. Subject to the terms and conditions of this Agreement,
each Lender, severally and not jointly, will make a Term Loan to Borrowers in
the sum equal to such Lender's Commitment Percentage of seven million five
hundred thousand dollars ($7,500,000). The Term Loan shall (a) be advanced on
the Closing Date, (b) with respect to principal, be payable in fifty-nine (59)
consecutive monthly installments of one hundred twenty-five thousand dollars
($125,000) each, and a final payment on the last day of the Term of the entire
unpaid principal balance thereof, subject to acceleration upon the occurrence of
an Event of Default under this Agreement or termination of this Agreement, and
(c) be evidenced by the promissory note ("Term Note") in substantially the form
attached hereto as Exhibit 2.3. Each payment of principal with respect to the
Term Loan shall be made on the first Business Day of each month commencing on
July 1, 1999. Each Eurodollar Rate Loan that constitutes a portion of the Term
Loan shall be an integral multiple of one million dollars ($1,000,000).
2.4. Maximum Advances. The aggregate balance of Advances outstanding at
any time shall not exceed Maximum Loan Amount. The aggregate balance of
Revolving Advances outstanding to all Borrowers at any time shall not exceed the
lesser of (a) the Aggregate Formula Amount at such time, or (b) the Maximum
Revolving Advance Amount. The aggregate balance of Revolving Advances
outstanding to (i) Century at any time shall not exceed the Century Formula
Amount at such time, and (ii) CBE at any time shall not exceed the CBE Formula
Amount at such time.
2.5. Disbursement of Advance Proceeds. All Advances shall be disbursed
from whichever office or other place Agent may designate from time to time.
During the Term, Borrowers may use the Revolving Advances by borrowing,
prepaying or repaying and reborrowing, all in accordance with the terms and
conditions hereof. The Term Loan may not be reborrowed once repaid or prepaid,
except and to the extent requested by Borrowing Agent and agreed by each Lender,
in its sole discretion. The proceeds of each Revolving Advance requested by
Borrowing Agent or deemed to have been requested under Section 2.2(a) hereof
shall, with respect to requested Revolving Advances to the extent Lenders make
such Revolving Advances, be made available to Borrowers on the day so requested
by way of credit to Borrowers' operating account at PNC, or such other bank as
Borrowing Agent may designate following notification to Agent, in immediately
available federal funds or other immediately available funds or, with respect to
Revolving Advances deemed to have been requested, be disbursed to Agent to be
applied to the outstanding Obligations giving rise to such deemed request.
2.6. Repayment of Advances.
(a) The Revolving Advances shall be due and payable in full on the
last day of the Term, subject to earlier prepayment as herein provided. The Term
Loan shall be due and payable as provided in Section 2.3 hereof and in the Term
Note.
(b) Borrowers recognize that the amounts evidenced by checks, notes,
drafts or any other items of payment relating to and/or proceeds of Collateral
may not be collectible by Agent on the date received. In consideration of
Agent's agreement to conditionally credit Borrowers' Account as of the Business
Day on which Agent receives those items of payment, Borrowers agree that, in
computing the charges under this Agreement, all items of payment shall be deemed
applied by Agent on account of the Obligations one (1) Business Day after the
Business Day Agent receives such payments via wire transfer or electronic
depository check. Agent is not, however, required to credit Borrowers' Account
for the amount of any item of payment which is unsatisfactory to Agent and Agent
may charge Borrowers' Account for the amount of any item of payment which is
returned to Agent unpaid.
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(c) All payments of principal, interest and other amounts payable
hereunder, or under any of the related agreements shall be made to Agent at the
Payment Office not later than 1:00 p.m. (New Jersey time) on the due date
therefor in Dollars in federal funds or other funds immediately available to
Agent. Agent shall have the right to effectuate payment on any and all
Obligations due and owing hereunder by charging Borrowers' Account or by making
Advances as provided in Section 2.2 hereof.
(d) Borrowers shall pay principal, interest, and all other amounts
payable hereunder, or under any Other Document, without any deduction
whatsoever, including, but not limited to, any deduction for any setoff or
counterclaim. In addition, any and all payments made by Borrowers hereunder or
under any Other Document shall be made free and clear and without deduction for
any present or future taxes, levies, imposts, charges or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on Agent's or any
Lender's income or profits (all such non-excluded taxes, levies, imposts,
charges or withholdings and liabilities being hereinafter referred to as
"Taxes"). If Borrowers shall be required by law to withhold or deduct any Taxes
from or in respect of any sum payable by Borrowers hereunder or under any Other
Document to Agent or any Lender, (i) such sum payable shall be increased as may
be necessary so that after making all required withholdings or deductions, Agent
or such Lender, as the case may be, receives an amount equal to the sum it would
have received had no such withholdings or deductions been made, (ii) Borrowers
shall make such withholdings or deductions, and (iii) Borrowers shall pay the
full amount withheld or deducted to the relevant Governmental Body in accordance
with applicable law. Borrowers will indemnify Agent and each Lender, and
reimburse each on demand and certification for the full amount of all Taxes
incurred or paid by Agent or such Lender, as the case may be, and any liability
arising therefrom or with respect thereto, whether or not such Taxes were
correctly or lawfully payable. A certificate of Agent or such Lender setting
forth the amount payable under this Section 2.6(d) shall be delivered to
Borrowing Agent and shall be conclusive absent manifest error.
2.7. Statement of Account. Agent shall maintain, in accordance with its
customary procedures, a loan account ("Borrowers' Account") in the name of
Borrowers in which shall be recorded the date and amount of each Advance made by
Agent and the date and amount of each payment in respect thereof; provided,
however, the failure by Agent to record the date and amount of any Advance shall
not adversely affect Agent or any Lender. Each month, Agent shall send to
Borrowing Agent a statement showing the accounting for the Advances made,
payments made or credited in respect thereof, and other transactions between
Agent and Borrowers during such month. The monthly statements shall be deemed
correct and binding upon Borrowers in the absence of manifest error and shall
constitute an account stated between Lenders and Borrowers unless Agent receives
a written statement of Borrowing Agent's specific exceptions thereto within
thirty (30) days after such statement is received by Borrowers. The records of
Agent with respect to the loan account shall be conclusive evidence absent
manifest error of the amounts of Advances and other charges thereto and of
payments applicable thereto.
2.8. Additional Payments. Any sums expended by Agent or any Lender due to
any Borrower's or Guarantor's failure to perform or comply with its obligations
under this Agreement or any Other Document including, without limitation,
Borrowers' obligations under Sections 4.2, 4.4, 4.12, 4.13, 4.14 and 6.1 hereof,
may be charged to Borrowers' Account as a Revolving Advance and added to the
Obligations.
2.9. Manner of Borrowing and Payment.
(a) Each borrowing of Revolving Advances and the Term Loan shall be
advanced according to the applicable Commitment Percentages of Lenders.
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(b) Each payment (including each prepayment) by Borrowers on account
of the principal of and interest on the Revolving Advances, shall be applied to
the Revolving Advances pro rata according to the applicable Commitment
Percentages of Lenders. Each payment (including each prepayment) by Borrowers on
account of the principal of and interest on the Term Loan, shall be applied to
the Term Loan pro rata according to the Commitment Percentages of Lenders.
(c) (i) Notwithstanding anything to the contrary contained in
Sections 2.9(a) and (b) hereof, commencing with the first Business Day following
the Closing Date, each borrowing of Revolving Advances shall be advanced by
Agent and each payment by Borrowers on account of Revolving Advances shall be
applied first to those Revolving Advances advanced by Agent. On or before 1:00
p.m. (New Jersey time), on each Settlement Date commencing with the first
Settlement Date following the Closing Date, Agent and Lenders shall make certain
payments as follows: (A) if the aggregate amount of new Revolving Advances made
by Agent during the preceding Week (if any) exceeds the aggregate amount of
repayments applied to outstanding Revolving Advances during such preceding Week,
then each Lender shall provide Agent with funds in an amount equal to its
applicable Commitment Percentage of the difference between (w) such Revolving
Advances and (x) such repayments and (B) if the aggregate amount of repayments
applied to outstanding Revolving Advances during such Week exceeds the aggregate
amount of new Revolving Advances made during such Week, then Agent shall provide
each Lender with funds in an amount equal to its applicable Commitment
Percentage of the difference between (y) such repayments and (z) such Revolving
Advances. Promptly following each Settlement Date, Agent shall submit to each
Lender a certificate with respect to payments received and Revolving Advances
made during the Week immediately preceding such Settlement Date. Such
certificate of Agent shall be conclusive in the absence of manifest error.
(ii) Each Lender shall be entitled to earn interest at the
applicable Contract Rate on outstanding Advances which it has funded.
(d) If any Lender or Participant (a "benefitted Lender") shall at
any time receive any payment of all or part of its Advances, or interest
thereon, or receive any Collateral or Guarantor Collateral in respect thereof
(whether voluntarily or involuntarily or by set-off) in a greater proportion
than any such payment to and Collateral or Guarantor Collateral received by any
other Lender, if any, in respect of such other Lender's Advances, or interest
thereon, and such greater proportionate payment or receipt of Collateral or
Guarantor Collateral is not expressly permitted hereunder, such benefitted
Lender shall purchase for cash from the other Lenders a participation in such
portion of each such other Lender's Advances, or shall provide such other Lender
with the benefits of any such Collateral or Guarantor Collateral, or the
proceeds thereof, as shall be necessary to cause such benefitted Lender to share
the excess payment or benefits of such Collateral or Guarantor Collateral or
proceeds ratably with each Lender; provided, however, that if all or any portion
of such excess payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest. Each Lender so
purchasing a portion of another Lender's Advances may exercise all rights of
payment (including, without limitation, rights of set-off) with respect to such
portion as fully as if such Lender were the direct holder of such portion.
(e) Unless Agent shall have been notified by telephone, confirmed in
writing, by any Lender that such Lender will not make the amount which would
constitute its applicable Commitment Percentage of the Revolving Advances
available to Agent, Agent may (but shall not be obligated to) assume that such
Lender shall make such amount available to Agent (in immediately available
funds) on the next Settlement Date, and, in reliance upon such assumption, make
available to Borrower a corresponding amount.
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Agent will promptly notify Borrowing Agent of its receipt of any such notice
from a Lender. If such amount is made available to Agent on a date after such
next Settlement Date, such Lender shall pay to Agent on demand an amount equal
to the product of (i) the daily average Federal Funds Rate (computed on the
basis of a year of 360 days) during such period as quoted by Agent, times (ii)
such amount, times (iii) the number of days from and including such Settlement
Date to the date on which such amount becomes immediately available to Agent. A
certificate of Agent submitted to any Lender with respect to any amounts owing
under this Section 2.9(e) shall be conclusive, in the absence of manifest error.
If such amount is not in fact made available to Agent by such Lender within
three (3) Business Days after such Settlement Date, Agent shall be entitled to
recover such an amount, with interest thereon at the rate per annum then
applicable to such Revolving Advance hereunder, from Borrowers on demand made to
Borrowing Agent; provided, however, that Agent's right to such recovery shall
not prejudice or otherwise adversely affect Borrowers' rights (if any) against
such Lender.
2.10. Mandatory Prepayment.
(a) In the event that the aggregate balance of Revolving Advances
outstanding at any time exceeds the lesser of (a) the Aggregate Formula Amount
at such time, or (b) the Maximum Revolving Advance Amount, the excess amount of
Revolving Advances shall be immediately due and payable as a mandatory
prepayment without the necessity of any demand, at the Payment Office, whether
or not a Default or Event of Default has occurred. In the Event that the
aggregate balance of Revolving Advances outstanding to (i) Century at any time
exceeds the Century Formula Amount at such time, or (ii) CBE at any time exceeds
the CBE Formula Amount at such time, the excess amount of Revolving Advances
shall be immediately due and payable by the appropriate Borrower(s) as a
mandatory prepayment without the necessity of any demand, at the Payment Office,
whether or not a Default or Event of Default has occurred.
(b) Borrowers shall prepay the outstanding amount of the Advances in
an amount equal to fifty percent (50%) of Excess Cash Flow for each fiscal year
of Borrowers (up to a maximum of one million dollars ($1,000,000) for any such
fiscal year) commencing with the fiscal year of Borrowers ending on December 31,
1999, payable in two (2) equal installments on June 30 and August 31 of the
following fiscal year (i.e. the first payment shall be due on June 30, 2000).
Such prepayments shall be applied first, to the outstanding principal
installments of the Term Loan in the inverse order of the maturities thereof
and, second, to the remaining Advances in such order as Agent may determine
subject to Borrowers' ability to reborrow Revolving Advances in accordance with
the terms hereof. The Excess Cash Flow for each fiscal year of Borrowers shall
be determined based upon the financial statements relating to such fiscal year
delivered pursuant to Section 9.7 hereof. In the event that such financial
statements with respect to any fiscal year of Borrowers are not delivered on or
prior to the date that any prepayment is due hereunder with respect to such
fiscal year of Borrowers, then a calculation based upon estimated amounts shall
be made by Agent upon which calculation Borrowers shall make the prepayment
required by this Section 2.10(b), subject to adjustment when such financial
statements are delivered. The calculation made by Agent shall not be deemed a
waiver of any rights Agent or Lenders may have as a result of the failure by
Borrowers to deliver such financial statements. Notwithstanding the foregoing,
Borrowers shall not be required to make mandatory prepayments under this Section
2.10(b) at any time after the Term Loan has been repaid in full.
(c) All prepayments shall be accompanied by accrued interest on the
principal being prepaid to the date of such prepayment. In the event that any
prepayment of a Eurodollar Rate Loan is made on a date other than the last
Business Day of the then current Interest Period with respect thereto, Borrowers
shall indemnify Agent and Lenders therefor in accordance with Section 3.2(e)
hereof.
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2.11. Optional Prepayment. At their option and upon three (3) Business
Days' prior written notice from Borrowing Agent, Borrowers may prepay the Term
Loan in whole at any time or in part from time to time, without premium or
penalty (except as provided in Section 13.1 hereof), but with accrued interest
on the principal being prepaid to the date of such prepayment. Borrowing Agent
shall specify the date of prepayment of the Term Loan and the amount of such
prepayment. Optional prepayments of the Term Loan shall each be in an aggregate
principal amount of one hundred thousand dollars ($100,000) or a whole multiple
of one hundred thousand dollars ($100,000) in excess thereof (or such lesser
principal amount as may be outstanding with respect to the Term Loan). In the
event that any prepayment of a Eurodollar Rate Loan is required or permitted on
a date other than the last Business Day of the then current Interest Period with
respect thereto, Borrowers shall indemnify Agent and Lenders therefor in
accordance with Section 3.2(e) hereof.
2.12. Use of Proceeds. Borrowers shall apply the proceeds of (a) Revolving
Advances to (i) repay existing indebtedness owed to Michigan National Bank, (ii)
pay fees and expenses relating to this transaction, (iii) finance Permitted
Acquisitions, and (iv) provide for its working capital needs, including for
general corporate purposes, and (b) the Term Loan to provide for its working
capital needs, including for general corporate purposes.
2.13. Defaulting Lender.
(a) Notwithstanding anything to the contrary contained herein, in
the event any Lender (x) has refused (which refusal constitutes a breach by such
Lender of its obligations under this Agreement) to make available its portion of
any Advance or (y) notifies either Agent or Borrowing Agent that it does not
intend to make available its portion of any Advance (if the actual refusal would
constitute a breach by such Lender of its obligations under this Agreement)
(each, a "Lender Default"), all rights and obligations hereunder of such Lender
(a "Defaulting Lender") as to which a Lender Default is in effect and of the
other parties hereto shall be modified to the extent of the express provisions
of this Section 2.13 while such Lender Default remains in effect.
(b) A Defaulting Lender shall not be entitled to give instructions
to Agent or to approve, disapprove, consent to or vote on any matters relating
to this Agreement and the Other Documents. All amendments, waivers and other
modifications of this Agreement (except for amendments, waivers or modifications
relating to the matters referred to in paragraphs (i), (ii) or (iii) of Section
15.2(b) hereof) and the Other Documents may be made without regard to a
Defaulting Lender and, for purposes of the definition of "Required Lenders", a
Defaulting Lender shall be deemed not to be a Lender and not to have Advances
outstanding. The proceeds of all amounts repaid to Agent by Borrowers after any
Lender Default, to the extent otherwise required to be applied to a Defaulting
Lender's share of all other Obligations pursuant to the terms hereof and
provided that no Event of Default has occurred and is continuing, shall be
advanced to Borrowers by Agent on behalf of such Defaulting Lender to the extent
necessary to cure, in full or in part, such Lender Default by such Defaulting
Lender, but shall nevertheless be deemed to have been paid to such Defaulting
Lender in satisfaction of such other Obligations; provided, that in no event
shall the Commitment Percentage of any Lender or any pro rata share of any
Advances required to be advanced by any Lender be increased as a result of any
Lender Default. Notwithstanding anything contained herein to the contrary:
(i) the foregoing provisions of this Section 2.13(b) shall apply
only with respect to payments of Obligations;
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(ii) a Defaulting Lender shall be deemed to have cured its failure
to make available its applicable Commitment Percentage of any Revolving
Advance at such time as an amount equal to such Defaulting Lender's
applicable Commitment Percentage of such Revolving Advance is fully funded
to Borrowers, whether made by such Defaulting Lender itself or by
operation of the terms of this Section 2.13(b), and whether or not the
portion of such Advance which was timely funded by the other Lender(s) in
accordance with the terms hereof (each such timely funded portion being a
"Non-Pro Rata Advance") has been repaid;
(iii) amounts advanced to Borrowers to cure, in full or in part, any
Lender Default ("Cure Advances") shall bear interest from and after the
date made available to Borrowers at the rate applicable to the Non-Pro
Rata Advance and shall be treated as a Revolving Advance for all purposes
herein;
(iv) regardless of whether or not an Event of Default has occurred
or is continuing, and notwithstanding the instructions of Borrowers or
Borrowing Agent as to their desired application, all repayments of
principal which, in accordance with the other terms of this Section 2.13,
would be applied to the outstanding Revolving Advances shall be applied
first, ratably to all Revolving Advances constituting Non-Pro Rata
Advances, second, ratably to Revolving Advances other than those
constituting Non-Pro Rata Advances or Cure Advances and, third, ratably to
Revolving Advances constituting Cure Advances.
(c) Other than as expressly set forth in this Section 2.13, the
rights and obligations of a Defaulting Lender (including, without limitation,
the obligation to indemnify Agent) and the other parties hereto shall remain
unchanged. Except as provided in Section 2.13(e) hereof, nothing in this Section
2.13 shall be deemed to release any Defaulting Lender from its obligations under
this Agreement and the Other Documents, shall alter such obligations, shall
operate as a waiver of any default by such Defaulting Lender hereunder, or shall
prejudice any rights which any Borrower, Agent or any other Lender may have
against any Defaulting Lender as a result of any default by such Defaulting
Lender hereunder.
(d) In the event a Defaulting Lender cures to the satisfaction of
Agent the breach which caused such Lender to become a Defaulting Lender, such
Defaulting Lender shall no longer be a Defaulting Lender and shall be treated as
a Lender under this Agreement.
(e) In the event and for so long as a Defaulting Lender fails to
cure to the reasonable satisfaction of Borrower the breach which caused such
Lender to become a Defaulting Lender, upon the request of Borrowing Agent, Agent
shall use its reasonable good faith efforts to locate a Purchasing Lender
reasonably acceptable to Agent to acquire all of such Defaulting Lender's rights
and interests under this Agreement (including, without limitation, all of such
Defaulting Lender's outstanding Advances and commitments to make additional
Advances) upon the terms set forth in Section 15.3(c) hereof; provided that such
Defaulting Lender shall be obligated to pay the fee set forth in Section 15.3(d)
hereof.
III. INTEREST AND FEES.
3.1. Interest. Interest on Advances shall be payable in arrears on the
first Business Day of each month, with respect to Domestic Rate Loans and at the
end of each Interest Period, with respect to Eurodollar Rate Loans. Interest
charges shall be computed on the actual principal amount of Advances outstanding
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during the month (the "Monthly Advances") at a rate per annum equal to (a) with
respect to Revolving Advances, the applicable Revolving Interest Rate, and (b)
with respect to the Term Loan, the applicable Term Loan Rate (as applicable, the
"Contract Rate"). Whenever, subsequent to the date of this Agreement, the Base
Rate is increased or decreased, the applicable Contract Rate for Domestic Rate
Loans shall be similarly changed without notice or demand of any kind by an
amount equal to the amount of such change in the Base Rate during the time such
change or changes remain in effect. The Eurodollar Rate shall be adjusted with
respect to Eurodollar Rate Loans without notice or demand of any kind on the
effective date of any change in the Reserve Percentage as of such effective
date. Upon and after the occurrence and during the continuance of an Event of
Default, each Advance shall bear interest, payable on demand, at a rate equal to
two percent (2%) per annum in excess of the rate otherwise applicable to such
Advance (the "Default Rate").
3.2. Eurodollar Rate Loans.
(a) Interest Periods for Eurodollar Rate Loans shall be for one (1),
two (2) or three (3) months; provided, that if an Interest Period would end on a
day that is not a Business Day, it shall end on the next succeeding Business Day
unless such day falls in the next succeeding calendar month in which case the
Interest Period shall end on the next preceding Business Day.
(b) Each Interest Period of a Eurodollar Rate Loan shall commence on
the date such Eurodollar Rate Loan is made and shall end on such date as
Borrower may elect as set forth in accordance with the terms of this Agreement;
provided that the exact length of each Interest Period shall be determined in
accordance with the practice of the interbank market for offshore Dollar
deposits and no Interest Period shall end after the last day of the Term.
(c) Borrowing Agent, on behalf of Borrowers, shall elect the initial
Interest Period applicable to a Eurodollar Rate Loan (i) by its notice of
borrowing given to Agent pursuant to Section 2.2(b) hereof, (ii) by its notice
of conversion given to Agent pursuant to Section 3.2(d) hereof, or (iii) in the
case of any portion of the Term Loan that is a Eurodollar Rate Loan, by its
notice given to Agent at least three (3) Business Days prior to the Closing
Date, as the case may be. Borrowing Agent, on behalf of Borrowers, shall elect
the duration of each succeeding Interest Period by giving irrevocable written
notice (or telephonic notice promptly confirmed in writing) to Agent of such
duration not less than three (3) Business Days prior to the last day of the then
current Interest Period applicable to such Eurodollar Rate Loan. If Agent does
not receive timely notice of the Interest Period elected by Borrowing Agent, on
behalf of Borrowers, Borrowing Agent, on behalf of Borrowers, shall be deemed to
have elected to convert to a Domestic Rate Loan subject to Section 3.2(d)
hereof.
(d) Provided that no Event of Default shall have occurred and be
continuing, Borrowing Agent, on behalf of Borrowers, may, on the last Business
Day of the then current Interest Period applicable to any outstanding Eurodollar
Rate Loan, or on any Business Day with respect to Domestic Rate Loans, convert
any such loan into a loan of another type in the same aggregate principal amount
provided that any conversion of a Eurodollar Rate Loan shall be made only on the
last Business Day of the then current Interest Period applicable to such
Eurodollar Rate Loan. If Borrowing Agent, on behalf of Borrowers, desires to
convert a loan, Borrowing Agent, on behalf of Borrowers, shall give Agent not
less than three (3) Business Days' prior written notice (or telephonic notice
promptly confirmed in writing) to convert from a Domestic Rate Loan to a
Eurodollar Rate Loan or one (1) Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) to convert from a Eurodollar
Rate Loan to a Domestic Rate Loan, specifying
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the date of such conversion, the loans to be converted and if the conversion is
from a Domestic Rate Loan to a Eurodollar Rate Loan, the duration of the first
Interest Period therefor.
(e) Borrowers shall indemnify Agent and Lenders and hold Agent and
Lenders harmless from and against any and all losses or expenses that Agent and
Lenders may sustain or incur as a consequence of any prepayment, conversion of
or any default by Borrowers in the payment of the principal of or interest on
any Eurodollar Rate Loan or failure by Borrowers to complete a borrowing of, a
prepayment of or conversion of or to a Eurodollar Rate Loan after notice thereof
has been given, including, but not limited to, any interest payable by Agent or
Lenders to lenders of funds obtained by it in order to make or maintain its
Eurodollar Rate Loans hereunder. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by Agent or any Lender to
Borrowing Agent shall be conclusive absent manifest error.
(f) Notwithstanding any other provision hereof, if any applicable
law, treaty, regulation or directive, or any change therein or in the
interpretation or application thereof, shall make it unlawful for any Lender
(for purposes of this Section 3.2(f), the term "Lender" shall include any Lender
and the office or branch where any Lender or any corporation or bank controlling
such Lender makes or maintains any Eurodollar Rate Loans) to make or maintain
its Eurodollar Rate Loans, the obligation of Lenders to make Eurodollar Rate
Loans hereunder shall forthwith be canceled and Borrowers shall, if any affected
Eurodollar Rate Loans are then outstanding, promptly upon request from Agent to
Borrowing Agent, either pay all such affected Eurodollar Rate Loans or convert
such affected Eurodollar Rate Loans into loans of another type. If any such
payment or conversion of any Eurodollar Rate Loan is made on a day that is not
the last day of the Interest Period applicable to such Eurodollar Rate Loan,
Borrowers shall pay Agent, upon Agent's request, such amount or amounts as may
be necessary to compensate Lenders for any loss or expense sustained or incurred
by Lenders in respect of such Eurodollar Rate Loan as a result of such payment
or conversion, including, but not limited to, any interest or other amounts
payable by Lenders to lenders of funds obtained by Lenders in order to make or
maintain such Eurodollar Rate Loan. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by any Lender to Borrowing
Agent shall be conclusive absent manifest error.
3.3. Facility Fee. If, for any month during the Term, the average daily
unpaid balance of the Revolving Advances for each day of such month does not
equal the Maximum Revolving Advance Amount, then Borrowers shall pay to Agent,
for the ratable benefit of Lenders, a fee at a rate equal to three-eights of one
percent (3/8 of 1%) per annum on the amount of by which the Maximum Revolving
Advance Amount exceeds such average daily unpaid balance of the Revolving
Advances. Such fee shall be payable to Agent in arrears on the last day of each
month.
3.4. Additional Fees. Borrowers shall pay to Agent all fees specified in
the Fee Letter in the amounts and at the times specified therein.
3.5. (a) Collateral Management Fee. Borrowers shall pay Agent a collateral
management fee equal to two thousand dollars ($2,000) per month commencing on
the first day of the month following the Closing Date and on the first day of
each month thereafter during the Term. The collateral evaluation fee shall be
deemed earned in full on the date when same is due and payable hereunder and
shall not be subject to rebate or proration upon termination of this Agreement
for any reason.
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(b) Field Examination Expenses. In connection with each field
examination conducted by Agent with respect to Borrowers and Guarantor or their
facilities, Borrowers shall pay Agent (i) the amount of six hundred seventy-five
dollars ($675) per day for each person (whether or not Agent's personnel)
employed or used by Agent to perform such field examination; provided, that
unless an Event of Default has occurred and is continuing, no more than four (4)
field examinations (each of which may encompass one or more locations of
Borrowers and/or Guarantor) shall be conducted by Agent in any calendar year,
and (ii) all other costs and disbursements incurred by Agent in the performance
of such field examination. The foregoing amounts shall be deemed earned in full
on the date when same is due and payable hereunder and shall not be subject to
rebate or proration upon termination of this Agreement for any reason.
3.6. Computation of Interest and Fees. Interest and fees hereunder shall
be computed on the basis of a year of 360 days and for the actual number of days
elapsed. If any payment to be made hereunder becomes due and payable on a day
other than a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and interest thereon shall be payable at the Revolving
Interest Rate for Domestic Rate Loans during such extension.
3.7. Maximum Charges. In no event whatsoever shall interest and other
charges charged hereunder exceed the highest rate permitted under law. In the
event interest and other charges as computed hereunder would otherwise exceed
the highest rate permitted under law, such excess amount shall be first applied
to any unpaid principal balance owed by Borrowers, and if the then remaining
excess amount is greater than the previously unpaid principal balance, Lenders
shall promptly refund such excess amount to Borrowers and the provisions hereof
shall be deemed amended to provide for such permissible rate.
3.8. Increased Costs. In the event that any applicable law, treaty or
governmental regulation, or any change therein or in the interpretation or
application thereof, or compliance by any Lender (for purposes of this Section
3.8, the term "Lender" shall include Agent or any Lender and any corporation or
bank controlling Agent or any Lender) and the office or branch where Agent or
any Lender (as so defined) makes or maintains any Eurodollar Rate Loans with any
request or directive (whether or not having the force of law) from any central
bank or other financial, monetary or other authority, shall:
(a) subject Agent or any Lender to any tax of any kind whatsoever
with respect to this Agreement or any Other Document or change the basis of
taxation of payments to Agent or any Lender of principal, fees, interest or any
other amount payable hereunder or under any Other Documents (except for changes
in the rate of tax on the overall net income of Agent or any Lender by the
jurisdiction in which it maintains its principal office); or
(b) impose, modify or hold applicable any reserve, special deposit,
assessment or similar requirement against assets held by, or deposits in or for
the account of, advances or loans by, or other credit extended by, any office of
Agent or any Lender, including (without limitation) pursuant to Regulation D of
the Board of Governors of the Federal Reserve System; or
(c) impose on Agent or any Lender or the London interbank Eurodollar
market any other condition with respect to this Agreement or any Other Document;
and the result of any of the foregoing is to increase the cost to Agent or any
Lender of making, renewing or maintaining its Advances hereunder by an amount
that Agent or such Lender deems to be material or to
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reduce the amount of any payment (whether of principal, interest or otherwise)
in respect of any of the Advances by an amount that Agent or such Lender deems
to be material, then, in any such case Borrowers shall promptly pay Agent or
such Lender, upon its demand upon Borrowing Agent, such additional amount as
will compensate Agent or such Lender for such additional cost or such reduction,
as the case may be; provided that the foregoing shall not apply to increased
costs which are reflected in the Eurodollar Rate. Agent or such Lender shall
certify in writing the amount of such additional cost or reduced amount to
Borrowing Agent, and such certification shall be conclusive absent manifest
error.
3.9. Basis For Determining Interest Rate Inadequate or Unfair. In the
event that Agent or any Lender shall have determined that:
(a) reasonable means do not exist for ascertaining the Eurodollar
Rate for any Interest Period; or
(b) Dollar deposits in the relevant amount and for the relevant
maturity are not available in the London interbank Eurodollar market, with
respect to an outstanding Eurodollar Rate Loan, a proposed Eurodollar Rate Loan,
or a proposed conversion of a Domestic Rate Loan into a Eurodollar Rate Loan ;
then Agent shall give Borrowing Agent prompt written, telephonic or facsimile
notice of such determination. If such notice is given, (i) any such requested
Eurodollar Rate Loan shall be made as a Domestic Rate Loan, unless Borrowing
Agent shall notify Agent no later than 10:00 a.m. (New Jersey time) two (2)
Business Days prior to the date of such proposed borrowing, that its request for
such borrowing shall be canceled or made as an unaffected type of Eurodollar
Rate Loan, (ii) any Domestic Rate Loan or Eurodollar Rate Loan which was to have
been converted to an affected type of Eurodollar Rate Loan shall be continued as
or converted into a Domestic Rate Loan, or, if Borrowing Agent, on behalf of
Borrowers, shall notify Agent, no later than 10:00 a.m. (New Jersey time) two
(2) Business Days prior to the proposed conversion, shall be maintained as an
unaffected type of Eurodollar Rate Loan, and (iii) any outstanding affected
Eurodollar Rate Loans shall be converted into a Domestic Rate Loan, or, if
Borrowing Agent, on behalf of Borrowers, shall notify Agent, no later than 10:00
a.m. (New Jersey time) two (2) Business Days prior to the last Business Day of
the then current Interest Period applicable to such affected Eurodollar Rate
Loan, shall be converted into an unaffected type of Eurodollar Rate Loan, on the
last Business Day of the then current Interest Period for such affected
Eurodollar Rate Loan. Until such notice has been withdrawn, Lenders shall have
no obligation to make an affected type of Eurodollar Rate Loan or maintain
outstanding affected Eurodollar Rate Loans and Borrowers shall not have the
right to convert a Domestic Rate Loan or an unaffected type of Eurodollar Rate
Loan into an affected type of Eurodollar Rate Loan.
3.10. Capital Adequacy.
(a) In the event that Agent or any Lender shall have determined that
the adoption or implementation of, or any change in, any applicable law, rule,
regulation or guideline regarding capital adequacy, or any change therein, or
any change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by Agent or any Lender (for purposes of
this Section 3.10, the term "Lender" shall include Agent or any Lender and any
corporation or bank controlling Agent or any Lender) and the office or branch
where Agent or any Lender (as so defined) makes or maintains any Eurodollar Rate
Loans with any request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on Agent or
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any Lender's capital as a consequence of its obligations hereunder to a level
below that which Agent or such Lender could have achieved but for such adoption,
change or compliance (taking into consideration Agent's and each Lender's
policies with respect to capital adequacy) by an amount deemed by Agent or any
Lender to be material, then, from time to time, Borrowers shall pay to Agent or
such Lender, upon demand from Borrowing Agent, such additional amount or amounts
as will compensate Agent or such Lender for such reduction. In determining such
amount or amounts, Agent or such Lender may use any reasonable averaging or
attribution methods. The protection of this Section 3.10 shall be available to
Agent and each Lender regardless of any possible contention of invalidity or
inapplicability with respect to the applicable law, regulation or condition.
(b) A certificate of Agent or such Lender setting forth such amount
or amounts as shall be necessary to compensate Agent or such Lender with respect
to Section 3.10(a) hereof when delivered to Borrowing Agent shall be conclusive
absent manifest error.
IV. COLLATERAL: GENERAL TERMS
4.1. Security Interest in the Collateral. To secure the prompt payment and
performance to Agent and each Lender of the Obligations, each Borrower hereby
assigns, pledges and grants to Agent for the ratable benefit of each Lender a
continuing security interest in and to all of its Collateral, whether now owned
or existing or hereafter acquired or arising and wheresoever located. Each
Borrower shall mark its books and records as may be necessary or appropriate to
evidence, protect and perfect Agent's security interest and shall cause its
financial statements to reflect such security interest (either in the footnotes
thereto or otherwise).
4.2. Perfection of Security Interest. Borrowers shall take all action that
may be necessary or reasonably desirable, or that Agent may reasonably request,
so as at all times to maintain the validity, perfection, enforceability and
priority of Agent's security interest in the Collateral or to enable Agent to
protect, exercise or enforce its rights hereunder and in the Collateral,
including, but not limited to, (i) immediately discharging all Liens other than
Permitted Encumbrances, (ii) obtaining landlords' or mortgagees' lien waivers to
the extent required by Agent (if reasonably obtainable), (iii) delivering to
Agent, endorsed or accompanied by such instruments of assignment as Agent may
specify, and stamping or marking, in such manner as Agent may specify, any and
all chattel paper, instruments (including, without limitation, promissory notes
evidencing loans from each Borrower to another Borrower, Guarantor or any other
Person, letters of credits and advices thereof and documents evidencing or
forming a part of the Collateral, (iv) entering into warehousing, lockbox and
other custodial arrangements reasonably satisfactory to Agent, and (v) executing
and delivering financing statements, instruments of pledge, notices and
assignments, in each case in form and substance satisfactory to Agent, relating
to the creation, validity, perfection, maintenance or continuation of Agent's
security interest under the Uniform Commercial Code as adopted in the State of
New York or other applicable law. Agent is hereby authorized to file financing
statements signed by Agent instead of a Borrower in accordance with Section
9-402(2) of Uniform Commercial Code as adopted in the State of New York if a
Default or Event of Default has occurred and is continuing, or at any other time
if Agent has requested that such Borrower sign such financing statement and such
Borrower has failed to do so within three (3) Business Days. All charges,
expenses and fees Agent may incur in doing any of the foregoing, and any local
taxes relating thereto, shall be charged to Borrowers' Account as a Revolving
Advance of a Domestic Rate Loan and added to the Obligations, or, at Agent's
option, shall be paid to Agent for the ratable benefit of Lenders upon demand.
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4.3. Disposition of Collateral. Borrowers will safeguard and protect all
Collateral for Agent's general account and make no disposition thereof whether
by sale, lease or otherwise except (a) the sale of Inventory in the ordinary
course of business and (b) the disposition or transfer of obsolete and worn-out
Equipment and Equipment no longer used, in each case in the ordinary course of
business, during any fiscal year having an aggregate fair market value for all
Borrowers of not more than two hundred fifty thousand dollars ($250,000) and
only to the extent that (i) the proceeds of any such disposition are used to
acquire Equipment which is subject to Agent's first priority security interest
or (ii) the proceeds of which are remitted to Agent as a prepayment on the Term
Loan.
4.4. Preservation of Collateral. Following the occurrence and during the
continuance of an Event of Default, in addition to the rights and remedies set
forth in Section 11.1 hereof, Agent: (a) may at any time take such steps as
Agent reasonably deems necessary to protect Agent's interest in and to preserve
the Collateral, including the hiring of such security guards or the placing of
other security protection measures as Agent may deem appropriate; (b) may employ
and maintain at any of Borrowers' premises a custodian who shall have full
authority to do all acts necessary to protect Agent's interests in the
Collateral; (c) may lease warehouse facilities to which Agent may move all or
part of the Collateral; (d) may use Borrowers' owned or leased lifts, hoists,
trucks and other facilities or equipment for handling or removing the
Collateral; and (e) shall have, and is hereby granted, a right of ingress and
egress to the places where the Collateral is located, and may proceed over and
through any of Borrowers' owned or leased property. Borrowers shall cooperate
fully with all of Agent's efforts to preserve the Collateral and will take such
reasonable actions to preserve the Collateral as Agent may direct. All of
Agent's expenses of preserving the Collateral, including any expenses relating
to the bonding of a custodian, shall be charged to Borrowers' Account as a
Revolving Advance of a Domestic Rate Loan and added to the Obligations, or, at
Agent's option, shall be paid to Agent for the ratable benefit of Lenders upon
demand.
4.5. Ownership of Collateral. With respect to the Collateral, at the time
the Collateral becomes subject to Agent's security interest: (a) a Borrower
shall be the sole owner of and fully authorized and able to sell, transfer,
pledge and/or grant a first priority security interest (subject to Permitted
Encumbrances) in each and every item of the Collateral to Agent; (b) each
document and agreement executed by a Borrower or delivered to Agent or any
Lender in connection with this Agreement shall be true and correct in all
material respects; (c) all signatures and endorsements of a Borrower that appear
on such documents and agreements shall be genuine and such Borrower shall have
full capacity to execute same; and (d) the Equipment and Inventory of each
Borrower shall be located at one of such Borrower's locations set forth on
Schedule 4.5 and shall not be removed from such location(s) (other than another
location of such Borrower listed on such Schedule) without the prior written
consent of Agent, except to the extent permitted in Section 4.3 hereof.
4.6. Defense of Agent's and Lenders' Interests. Until (a) payment and
performance in full of all of the Obligations and (b) termination of this
Agreement, Agent's and Lenders' interests in the Collateral shall continue in
full force and effect. During such period Borrowers shall not, without Agent's
prior written consent, pledge, sell (except to the extent permitted in Section
4.3 hereof), assign, transfer, create or suffer to exist a Lien upon or encumber
or allow or suffer to be encumbered in any way except for Permitted
Encumbrances, any part of the Collateral. Borrowers shall defend Agent's
interests in the Collateral against any and all Persons whatsoever. At any time
after the occurrence and during the continuance of an Event of Default, Agent
shall have the right to take possession of the indicia of the Collateral and the
Collateral in whatever physical form contained, including without limitation:
labels, stationery, documents, instruments and advertising materials. If Agent
exercises this right to take possession of the Collateral, Borrowers shall, upon
demand, assemble it in the best manner possible and make it available to Agent
at a place reasonably
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convenient to Agent. In addition, with respect to all Collateral, Agent and
Lenders shall be entitled to all of the rights and remedies set forth herein and
further provided by the Uniform Commercial Code as adopted in the State of New
York or other applicable law. At any time after the occurrence and during the
continuance of an Event of Default, Borrowers shall, and Agent may, at its
option, instruct all suppliers, carriers, forwarders, warehouses or others
receiving or holding cash, checks, Inventory, documents or instruments in which
Agent holds a security interest to deliver same to Agent and/or subject to
Agent's order and if they shall come into any Borrower's possession, they, and
each of them, shall be held by such Borrower in trust for the benefit of Agent
and Lenders, and such Borrower will immediately deliver them to Agent in their
original form together with any necessary endorsement.
4.7. Books and Records. Each Borrower shall (a) keep proper books of
record and account in which full, true and correct (in all material respects)
entries will be made of all dealings or transactions of or in relation to its
business and affairs; (b) set up on its books accruals with respect to all
taxes, assessments, charges, levies and claims; and (c) on a reasonably current
basis set up on its books, from its earnings, allowances against doubtful
Receivables, advances and investments and all other proper accruals (including
without limitation by reason of enumeration, accruals for premiums, if any, due
on required payments and accruals for depreciation, obsolescence, or
amortization of properties), which should be set aside from such earnings in
connection with its business. All determinations pursuant to this Section 4.7
shall be made in accordance with, or as required by, GAAP consistently applied.
4.8. Financial Disclosure. Each Borrower hereby irrevocably authorizes and
directs all accountants and auditors employed by such Borrower at any time
during the Term to exhibit and deliver to Agent and each Lender copies of any of
such Borrower's financial statements, trial balances or other accounting records
of any sort in the accountant's or auditor's possession, and to disclose to
Agent and each Lender any information such accountants may have concerning such
Borrower's financial status and business operations. Unless and Event of Default
has occurred and is continuing, Agent and each Lender will obtain the consent of
Borrowing Agent (which consent will not be unreasonably withheld or delayed)
prior to obtaining such information or materials from such accountants.
4.9. Compliance with Laws. Each Borrower shall comply in all material
respects with all acts, rules, regulations and orders of any legislative,
administrative or judicial body or official applicable to its respective
Collateral or any part thereof or to the operation of such Borrower's business
the non-compliance with which could reasonably be expected to have a Material
Adverse Effect. Each Borrower may, however, contest or dispute any acts, rules,
regulations, orders and directions of those bodies or officials in any
reasonable manner; provided that any related Lien is inchoate or stayed and
sufficient reserves are established to the reasonable satisfaction of Agent to
protect Agent's Lien on and security interest in the Collateral. The Collateral
at all times shall be maintained in accordance with the requirements of all
insurance carriers which provide insurance with respect to the Collateral so
that such insurance shall remain in full force and effect.
4.10. Inspection of Premises. At all reasonable times and, provided that
no Event of Default has occurred and is continuing, upon reasonable advanced
notice, Agent and each Lender shall have full access to and the right to audit,
check, inspect and make abstracts and copies from Borrowers' books, records,
audits, correspondence and all other papers relating to the Collateral and the
operation of Borrowers' businesses. Agent, any Lender and their agents may at
all reasonable times and, provided that no Event of Default has occurred and is
continuing, upon reasonable advanced notice, enter upon any of Borrowers'
premises at any time during business hours and at any other reasonable time, and
from time to time, for the purpose of inspecting the Collateral and any and all
records pertaining thereto and the operation of Borrowers' business.
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4.11. Insurance. Borrowers shall bear the full risk of any loss of any
nature whatsoever with respect to the Collateral. At each Borrower's own cost
and expense in amounts and with such Borrower's current carriers or with other
financially sound and reputable carriers, such Borrower shall (a) keep all of
its insurable properties and properties in which such Borrower has an interest
insured against the hazards of fire, flood, sprinkler leakage, those hazards
covered by extended coverage insurance and such other hazards, and for such
amounts, as is customary in the case of companies engaged in businesses similar
to such Borrower's including, without limitation, business interruption
insurance; (b) maintain insurance or a bond in such amounts as is customary in
the case of companies engaged in businesses similar to such Borrower's insuring
against larceny, embezzlement or other criminal misappropriation of insured's
officers and employees who may either singly or jointly with others at any time
have access to the assets or funds of such Borrower either directly or through
authority to draw upon such funds or to direct generally the disposition of such
assets; (c) maintain public and product liability insurance against claims for
personal injury, death or property damage suffered by others; (d) maintain all
such worker's compensation or similar insurance as may be required under the
laws of any state or jurisdiction in which such Borrower is engaged in business;
(e) furnish Agent with (i) copies of all policies, if requested, and evidence of
the maintenance of such policies by the renewal thereof at least thirty (30)
days before any expiration date, and (ii) appropriate loss payable endorsements
in form and substance reasonably satisfactory to Agent, naming Agent as an
additional insured and loss payee as its interests may appear with respect to
all insurance coverage referred to in clauses (a) and (c) above, and providing
(A) that all proceeds thereunder shall be payable to Agent, (B) no such
insurance shall be affected by any act or neglect of the insured or owner of the
property described in such policy, and (C) that such policy and loss payable
clauses may not be canceled, amended or terminated unless at least thirty (30)
days' prior written notice is given to Agent. In the event of any loss
thereunder, the carriers named therein hereby are directed by Agent and
Borrowers to make payment for such loss to Agent and not to such Borrower and
Agent jointly. If any insurance losses are paid by check, draft or other
instrument payable to a Borrower and Agent jointly, Agent may endorse such
Borrower's name thereon and do such other things as Agent may deem advisable to
reduce the same to cash. Upon the occurrence and during the continuance of an
Event of Default, Agent is hereby authorized to adjust and compromise claims
under insurance coverage referred to in clauses (a), and (b) above. All
recoveries received by Agent upon any such insurance relating to losses of
Inventory shall be applied to the Revolving Advances. Except as otherwise
provided below, all other loss recoveries received by Agent upon any such
insurance may be applied to the Obligations, in such order as Agent in its sole
discretion shall determine. Any surplus shall be paid by Agent to Borrowers or
applied as may be otherwise required by law. Any deficiency thereon shall be
paid by Borrowers to Agent, on demand. Anything hereinabove to the contrary
notwithstanding, and subject to the fulfillment of the conditions set forth
below, Agent shall remit to Borrowers insurance proceeds received by Agent
during any calendar year under insurance policies procured and maintained by
Borrowers which insure Borrowers' insurable properties (other than Inventory) to
the extent such insurance proceeds do not exceed five hundred thousand dollars
($500,000) in the aggregate for all Borrowers during such calendar year or three
hundred fifty thousand dollars ($350,000) per occurrence. In the event the
amount of insurance proceeds received by Agent for any occurrence exceeds such
amounts, then Agent may, in its sole discretion, either remit the insurance
proceeds to Borrowers upon Borrowers providing Agent with evidence reasonably
satisfactory to Agent that the insurance proceeds will be used by Borrowers to
repair, replace or restore the insured property which was the subject of the
insurable loss, or apply the proceeds to the Obligations, in such order as
Agent, in its sole discretion shall determine. The agreement of Agent to remit
insurance proceeds in the manner above provided shall be subject in each
instance to satisfaction of each of the following conditions: (x) no Event of
Default shall then have occurred and be continuing, and (y) Borrowers shall use
such insurance proceeds to repair, replace or restore the insurable property
which was the subject of the insurable loss (to the extent not already repaired,
replaced or restored).
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4.12. Failure to Pay Insurance. If any Borrower fails to obtain insurance
as hereinabove provided, or to keep the same in force, Agent, if Agent so
elects, may obtain such insurance and pay the premium therefor on behalf of such
Borrower, and charge Borrowers' Account therefor as a Revolving Advance of a
Domestic Rate Loan and such expenses so paid shall be part of the Obligations.
4.13. Payment of Taxes. Each Borrower will pay, when due, all taxes,
assessments and other Charges lawfully levied or assessed upon such Borrower or
any of its Collateral including, without limitation, real and personal property
taxes, assessments and charges and all franchise, income, employment, social
security benefits, withholding, and sales taxes, in each case except to the
extent being contested in good faith and by appropriate proceedings and with
respect to which proper reserves have been taken by such Borrower in accordance
with GAAP.
4.14. Payment of Leasehold Obligations. Each Borrower shall at all times
pay, when and as due, its rental obligations under all leases under which it is
a tenant, and shall otherwise comply, in all material respects, with all other
terms of such leases and keep them in full force and effect and, at Agent's
request will provide evidence of having done so, except, in any such case where
the failure to pay such obligations or comply with such terms or to keep such
leases in full force and effect would not reasonably be expected to have a
Material Adverse Effect.
4.15. Receivables.
(a) Nature of Receivables. Each of the Receivables shall be a bona
fide and valid account representing a bona fide indebtedness incurred by the
Customer therein named, for a fixed sum as set forth in the invoice or other
documentary evidence relating thereto (provided immaterial or unintentional
invoice errors shall not be deemed to be a breach hereof) with respect to the
sale or lease and delivery of goods upon stated terms of such Borrower, or work,
labor or services theretofore rendered by such Borrower as of the date each
Receivable is created. Same shall be due and owing in accordance with such
Borrower's customary terms of sale without dispute, claimed setoff or
counterclaim except as may be stated on the accounts receivable schedules
delivered by Borrowers to Agent.
(b) Solvency of Customers. Each Customer of each Borrower, to the
best of such Borrower's knowledge, as of the date each Receivable is created, is
and will be solvent and able to pay all Receivables on which such Customer is
obligated in full when due or with respect to such Customers of such Borrower
who are not solvent, such Borrower has set up on its books and in its financial
records bad debt reserves adequate to cover such Receivables.
(c) Locations of Borrowers. Each Borrower's chief executive office
is located at the address set forth on Schedule 4.15(c) hereto. No Borrower will
move its chief executive office except to such new location as such Borrower may
establish in accordance with this Section 4.15(c). The originals of all
documents evidencing all Receivables and the only original books of account and
records of each Borrower relating thereto are, and will continue to be, kept at
such chief executive office or at such new chief executive office as such
Borrower may establish in accordance with this Section 4.15(c). No Borrower will
establish a new location for such office unless (i) it shall have given to Agent
written notice at least thirty (30) days prior to such relocation, clearly
describing such new location and providing such other information in connection
therewith as Agent may reasonably request and (ii) with respect to such new
location, it shall have taken all action, reasonably satisfactory to Agent, to
maintain the security interest of Agent (and the priority thereof) in the
Collateral intended to be granted hereby at all times fully perfected and in
full force and effect. No
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Borrower will change its corporate name or conduct business under any other name
except as set forth on Schedule 5.6 hereto.
(d) Collection of Receivables. Each Borrower shall, at such
Borrower's sole cost and expense, deliver to Agent, and instruct its Customers
to deliver to Agent, or forward to a Blocked Account maintained with Agent, in
original form and on the date of receipt thereof, all checks, drafts, notes,
money orders, acceptances, cash and other evidences of Indebtedness relating to
such Borrower's Receivables. All such amounts received by such Borrower shall be
received on Agent's and Lenders' behalf and for Agent's and Lenders' account, as
Agent's and Lenders' property and in trust for Agent and Lenders, and such
Borrower shall not commingle such amounts with such Borrower's funds or use the
same except to pay Obligations.
(e) Notification of Assignment of Receivables. At any time following
the occurrence and during the continuance of an Event of Default, Agent shall
have the right to send notice of the assignment of, and Agent's security
interest in, the Receivables to any and all Customers or any third party holding
or otherwise concerned with any of the Collateral. Thereafter, Agent shall have
the sole right to collect the Receivables, if not already doing so, take
possession of the Collateral, or both. Agent's actual collection expenses,
including, but not limited to, stationery and postage, telephone and telegraph,
secretarial and clerical expenses and the salaries of any collection personnel
used for collection, may be charged to Borrowers' Account and added to the
Obligations.
(f) Power of Agent to Act on Borrowers' Behalf. Agent shall have the
right to receive, endorse, assign and/or deliver in the name of Agent or any
Borrower any and all checks, drafts and other instruments for the payment of
money relating to the Receivables, and each Borrower hereby waives notice of
presentment, protest and non-payment of any instrument so endorsed. Each
Borrower hereby constitutes Agent or Agent's designee as such Borrower's
attorney with power, following the occurrence and during the continuance of an
Event of Default, (i) without limiting the generality of the immediately
preceding sentence, to endorse such Borrower's name upon any notes, acceptances,
checks, drafts, money orders or other evidences of payment or Collateral; (ii)
to sign such Borrower's name on any invoice or bill of lading relating to any of
the Receivables, drafts against Customers, assignments and verifications of
Receivables; (iii) without limiting the generality of Section 9.2 hereof, to
send verifications of Receivables to any Customer; (iv) to sign such Borrower's
name on all financing statements or any other documents or instruments deemed
necessary or appropriate by Agent to preserve, protect, or perfect Agent's
interest in the Collateral and to file same; (v) to demand payment of the
Receivables; (vi) to enforce payment of the Receivables by legal proceedings or
otherwise; (vii) to exercise all of such Borrower's rights and remedies with
respect to the collection of the Receivables and any other Collateral; (viii) to
settle, adjust, compromise, extend or renew the Receivables; (ix) to settle,
adjust or compromise any legal proceedings brought to collect Receivables; (x)
to prepare, file and sign such Borrower's name on a proof of claim in bankruptcy
or similar document against any Customer; (xi) to prepare, file and sign such
Borrower's name on any notice of Lien, assignment or satisfaction of Lien or
similar document in connection with the Receivables; and (xii) to do all other
acts and things reasonably necessary to carry out this Agreement. All acts of
said attorney or designee are hereby ratified and approved, and said attorney or
designee shall not be liable for any acts of omission or commission nor for any
error of judgment or mistake of fact or of law, except to the extent such act,
error or mistake constitutes gross negligence or willful misconduct; this power
being coupled with an interest is irrevocable while any of the Obligations
remain unpaid. Agent shall have the right at any time following the occurrence
and during the continuance of an Event of Default, to change the address for
delivery of mail
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addressed to any Borrower to such address as Agent may designate and to receive,
open and dispose of all mail addressed to any Borrower.
(g) No Liability. Neither Agent nor any Lender shall, under any
circumstances or in any event whatsoever, have any liability for any error or
omission or delay of any kind occurring in the settlement, collection or payment
of any of the Receivables or any instrument received in payment thereof, or for
any damage resulting therefrom, except to the extent caused by the gross
negligence or willful misconduct of Agent or such Lender. Following the
occurrence and during the continuance of an Event of Default, Agent may, without
notice or consent from any Borrower, sue upon or otherwise collect, extend the
time of payment of, compromise or settle for cash, credit or upon any terms any
of the Receivables or any other securities, instruments or insurance applicable
thereto and/or release any obligor thereof. Agent is authorized and empowered to
accept, following the occurrence and during the continuance of an Event of
Default, the return of the goods represented by any of the Receivables, without
notice to or consent by any Borrower, all without discharging or in any way
affecting Borrowers' liability hereunder.
(h) Establishment of a Lockbox Account, Dominion Account.
Notwithstanding anything to the contrary contained herein or in any Other
Document, all proceeds of Collateral shall be deposited by each Borrower into a
lockbox account, dominion account or such other "blocked account" ("Blocked
Accounts") as Agent may require pursuant to an arrangement with such banks as
may be selected by Borrowing Agent and be reasonably acceptable to Agent. Each
appropriate Borrower shall issue to each such bank at which a Blocked Account is
maintained, an irrevocable letter of instruction directing said bank to transfer
such funds so deposited to Agent, either to any account maintained by Agent at
said bank or by wire transfer to appropriate account(s) of Agent. All funds
deposited in such Blocked Accounts shall immediately become the property of
Agent and each appropriate Borrower shall obtain the agreement by such bank to
waive any offset rights against the funds so deposited. Agent assumes no
responsibility for any Blocked Account arrangements, including, without
limitation, any claim of accord and satisfaction or release with respect to
deposits accepted by any bank thereunder. Alternatively, Agent may establish
depository accounts ("Depository Accounts") in the name of Agent at a bank or
banks for the deposit of such funds and each Borrower shall deposit all proceeds
of Collateral or cause same to be deposited, in kind, in such Depository
Accounts of Agent in lieu of depositing same to the Blocked Accounts.
(i) Adjustments. No Borrower will, without Agent's consent,
compromise or adjust any material amount of the Receivables (or extend the time
for payment thereof) or accept any material returns of merchandise or grant any
additional discounts, allowances or credits thereon except for those
compromises, adjustments, returns, discounts, credits and allowances as have
been heretofore customary in the business of such Borrower.
4.16. Inventory. To the extent Inventory held for sale or lease has been
produced by a Borrower, it has been and will be produced by such Borrower in
accordance with the Federal Fair Labor Standards Act of 1938, as amended, and
all rules, regulations and orders thereunder.
4.17. Maintenance of Equipment. The Equipment shall be maintained in good
operating condition and repair (reasonable wear and tear excepted) and all
necessary replacements of and repairs thereto shall be made so that the value
and operating efficiency of the Equipment shall be maintained and preserved in
accordance with Borrowers' normal business practices. No Borrower shall use or
operate its Equipment in violation of any law, statute, ordinance, code, rule or
regulation, except for violations which individually or in
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the aggregate could not reasonably be expected to have a Material Adverse
Effect. Each Borrower shall have the right to sell its Equipment to the extent
set forth in Section 4.3 hereof.
4.18. Exculpation of Liability. Nothing herein contained shall be
construed to constitute Agent or any Lender as Borrowers' agent for any purpose
whatsoever, nor shall Agent or any Lender be responsible or liable for any
shortage, discrepancy, damage, loss or destruction of any part of the Collateral
wherever the same may be located and regardless of the cause thereof, except to
the extent resulting from the gross negligence or willful misconduct of Agent or
any Lender. Neither Agent nor any Lender, whether by anything herein or in any
assignment or otherwise, shall assume any Borrower's obligations under any
contract or agreement assigned to Agent or such Lender, and neither Agent nor
any Lender shall be responsible in any way for the performance by any Borrower
of any of the terms and conditions thereof.
4.19. Environmental Matters.
(a) Each Borrower will operate the Real Property owned or leased by
it in compliance with all Environmental Laws, except for such non-compliance
which would not reasonably be expected to have a Material Adverse Effect.
(b) Each Borrower will maintain its current procedures pursuant to
which such Borrower represents, assures and monitors continued compliance with
all Environmental Laws.
(c) Each Borrower shall dispose of any and all Hazardous Waste
generated at the Real Property owned or leased by it in compliance with all
Environmental Laws, except for such non-compliance which would not reasonably be
expected to have a Material Adverse Effect. Without limiting the generality of
the foregoing, each Borrower shall use its best efforts to obtain certificates
of disposal, such as hazardous waste manifest receipts, from all treatment,
transport, storage or disposal facilities or operators employed by such Borrower
in connection with the transport or disposal of any Hazardous Waste generated at
the Real Property owned or leased by it.
(d) In the event any Borrower obtains, gives or receives notice of
any Release or threat of Release of a reportable quantity of any Hazardous
Substances at the Real Property owned or leased by it (each such event being
hereinafter referred to as a "Hazardous Discharge") or receives any notice of
violation or notification that it is potentially responsible for investigation
or cleanup of environmental conditions at the Real Property owned or leased by
it, demand letter or complaint, order, citation, or other written notice with
regard to any Hazardous Discharge or violation of Environmental Laws affecting
the Real Property owned or leased by it or such Borrower's interest therein
(each of the foregoing is referred to herein as an "Environmental Complaint")
from any Person, including any state agency responsible in whole or in part for
environmental matters in the state in which the Real Property owned or leased by
it is located or the United States Environmental Protection Agency (any such
person or entity hereinafter the "Authority"), then such Borrower shall, within
five (5) Business Days, give written notice of same to Agent, and within thirty
(30) days thereafter give a further written notice of same to Agent, in each
case detailing facts and circumstances of which such Borrower is aware giving
rise to the Hazardous Discharge or Environmental Complaint. Such information is
to be provided to allow Agent to protect its security interest in the Collateral
and is not intended to create nor shall it create any obligation upon Agent or
any Lender with respect thereto.
(e) Each Borrower shall promptly forward to Agent copies of any
notification of potential liability, demand letter relating to potential
responsibility with respect to the investigation or
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cleanup of Hazardous Substances at any other site owned, operated or used by
such Borrower to dispose of Hazardous Substances and shall continue to forward
copies of correspondence between such Borrower and the Authority regarding such
claims to Agent until the claim is settled. Each Borrower shall promptly forward
to Agent copies of all documents and reports concerning a Hazardous Discharge at
the Real Property that such Borrower is required to file under any Environmental
Laws. Such information is to be provided solely to allow Agent to protect
Agent's security interest in the Collateral.
(f) Each Borrower shall respond promptly to any Hazardous Discharge
or Environmental Complaint and take all necessary action in order to safeguard
the health of any Person, including, without limitation, undertaking, at its
expense, any clean up, removal, remedial or other action required under
applicable Environmental Laws to remove and clean up any Hazardous Discharge.
(g) Each Borrower shall defend and indemnify Agent and Lenders and
hold Agent, Lenders and their respective employees, agents, directors and
officers harmless from and against all loss, liability, damage and expense,
claims, costs, fines and penalties, including attorney's fees, suffered or
incurred by Agent or Lenders under or on account of any Environmental Laws,
including, without limitation, the assertion of any Lien thereunder, with
respect to any Hazardous Discharge, the presence of any Hazardous Substances
affecting the Real Property owned or leased by it, whether or not the same
originates or emerges from the Real Property owned or leased by it or from any
contiguous real estate, except to the extent such loss, liability, damage and
expense is attributable to any Hazardous Discharge resulting from actions on the
part of Agent or any Lender. Each Borrower's obligations under this Section 4.19
shall arise upon the discovery of the presence of any Hazardous Substances at
the Real Property owned or leased by it, whether or not any federal, state, or
local environmental agency has taken or threatened any action in connection with
the presence of any Hazardous Substances.
4.20. Financing Statements. Except as respects the financing statements
filed by Agent and any financing statements described on Schedule 1.2, no
financing statement covering any of the Collateral or any proceeds thereof is on
file in any public office.
V. REPRESENTATIONS AND WARRANTIES.
Borrowers represent and warrant as follows:
5.1. Authority. (a) Each Borrower has full power, authority and legal
right to enter into this Agreement and the Other Documents to which it is a
party and to perform all its obligations hereunder and thereunder. The
execution, delivery and performance of this Agreement and of the Other Documents
to which it is a party (i) are within each Borrower's corporate powers, have
been duly authorized, are not in contravention of law or the terms of any
Borrower's by-laws, certificate of incorporation or other applicable documents
relating to any Borrower's formation or to the conduct of any Borrower's
business or of any material agreement or undertaking to which each Borrower is a
party or by which any Borrower is bound, and (ii) will not conflict with nor
result in any breach in any of the provisions of or constitute a default under
or result in the creation of any Lien (except Permitted Encumbrances) upon any
asset of any Borrower under the provisions of any agreement, charter document,
instrument, by-law, or other instrument to which any Borrower or its property is
a party or by which it may be bound.
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(b) Guarantor has full power, authority and legal right to enter
into each Other Documents to which it is a party and to perform all its
obligations thereunder. The execution, delivery and performance of each Other
Document to which it is a party (i) are within Guarantor's corporate powers,
have been duly authorized, are not in contravention of law or the terms of
Guarantor's by-laws, certificate of incorporation or other applicable documents
relating to Guarantor's formation or to the conduct of Guarantor's business or
of any material agreement or undertaking to which Guarantor is a party or by
which Guarantor is bound, and (ii) will not conflict with nor result in any
breach in any of the provisions of or constitute a default under or result in
the creation of any Lien (except Permitted Encumbrances) upon any asset of
Guarantor under the provisions of any agreement, charter document, instrument,
by-law, or other instrument to which Guarantor or its property is a party or by
which it may be bound.
5.2. Formation and Qualification. (a) Each Borrower and Guarantor is duly
incorporated and in good standing under the laws of the State of its
incorporation and is qualified to do business and is in good standing in the
states listed on Schedule 5.2(a) which constitute all states in which
qualification and good standing are necessary for such Borrower or Guarantor, as
the case may be, to conduct its business and own its property and where the
failure to so qualify could reasonably be expected to have a Material Adverse
Effect. Each Borrower and Guarantor has delivered to Agent true and complete
copies of its certificate of in corporation and by-laws and Borrowing Agent will
promptly notify Agent of any amendment or changes thereto.
(b) None of Borrowers nor Guarantor has any Subsidiaries except that
(i) RHC is a direct wholly-owned Subsidiary of Richton, (ii) Century, HTAC and
CBE are direct wholly-owned Subsidiaries of RHC, (iii) CBC is a direct
wholly-owned Subsidiary of HTAC, and (iv) Century Supply Corp. of Canada, Ltd.
is a direct wholly-owned Subsidiary of Century.
5.3. Survival of Representations and Warranties. All representations and
warranties of each Borrower and of Guarantor contained in this Agreement and the
Other Documents to which it is a party are true at the time of such Borrower's
or of Guarantor's, as the case may be, execution of this Agreement and the Other
Documents to which it is a party, and shall survive the execution, delivery and
acceptance thereof by the parties thereto and the closing of the transactions
described therein or related thereto.
5.4. Tax Returns. Each Borrower's and Guarantor's federal tax
identification number is set forth on Schedule 5.4. Each Borrower and Guarantor
has filed or obtained appropriate extensions for filing all federal, state and
local tax returns and other reports each is required by law to file and has paid
all taxes, assessments, fees and other governmental charges that are due and
payable and that are not being contested in good faith and by appropriate
proceedings in connection with which such Borrower or Guarantor shall have
provided appropriate reserves in accordance with GAAP. Federal income tax
returns of Century have been examined and reported upon by the Internal Revenue
Service for all fiscal years prior to and including its fiscal year ending
September 30, 1993. There are no agreements or waivers extending the statutory
period of limitations applicable to any federal, state or local income tax
return of any Borrower or any Subsidiary of any Borrower for any period. The
provision for taxes on the books of each Borrower and Guarantor are adequate for
all years not closed by applicable statutes, and for its current fiscal year,
and no Borrower has any knowledge of any deficiency or additional assessment in
connection therewith not provided for on its or Guarantor's books.
5.5. Financial Statements.
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(a) The pro forma consolidated balance sheet of Richton and its
Subsidiaries as of March 31, 1999 (collectively, the "Pro Forma Balance Sheets")
furnished to Agent on or prior to the Closing Date reflects the consummation of
the Transactions and, assuming that the Transactions had closed on or prior to
such date, fairly presents the financial condition of Richton and its
Subsidiaries as of such date after giving effect to the Transactions. The Pro
Forma Balance Sheet has been certified as fairly presenting the financial
condition of Richton and its Subsidiaries by the Chief Financial Officer of
Richton, on behalf of Borrowers. The Pro Forma Balance Sheets, including the
related schedules and notes thereto, if any, have been prepared, in accordance
with GAAP, consistently applied, except as may be disclosed therein.
(b) The forty-eight (48) month cash flow projections of Richton and
its Subsidiaries, a copy of which are attached hereto as Exhibit 5.5(b) (the
"Projections"), were prepared by the Chief Financial Officer of Richton, are
based on underlying assumptions which provide a reasonable basis for the
projections contained therein and reflect Richton's judgment based on present
circumstances of the most likely set of conditions and course of action for the
projected period. The cash flow Projections together with the Pro Forma Balance
Sheets, are referred to as the "Pro Forma Financial Statements". Notwithstanding
the foregoing, actual results may vary and the Projections are subject to
numerous uncertainties and risks, including, without limitation, general
economic and climatic conditions in the markets in which Richton and its
Subsidiaries operate and fluctuation in the demand for their products and
services.
(c) The consolidated balance sheet of Richton and its Subsidiaries
as of December 31, 1998, and the related consolidated statements of income,
changes in stockholder's equity, and changes in cash flow for the period ended
on such date, all accompanied by reports thereon containing opinions without
qualification by independent certified public accountants, copies of which have
been delivered to Agent, have been prepared in accordance with GAAP,
consistently applied and present fairly the financial position of Borrowers at
such date and the results of their operations for such period. The (i) unaudited
consolidating balance sheets of Richton and its Subsidiaries as of December 31,
1998 and the related consolidating statements of income for the period ended on
such date and (ii) unaudited consolidated and consolidating balance sheets of
Richton and its Subsidiaries as of March 31, 1999 and the related consolidated
and consolidating statements of income for the period ended on such date, copies
of which have been delivered to Agent, have been prepared in accordance with
GAAP, consistently applied (subject to normal year end adjustments and the
absence of financial statement footnotes) and present fairly the financial
position of Richton and its Subsidiaries at such date and the results of their
operations for such period. Since March 31, 1999, there has been no material
adverse change in the condition, operations, assets, business or prospects of
Richton or any of its Subsidiaries.
5.6. Corporate Name. None of Borrowers nor Guarantor has been known by any
other corporate name in the past five years and does not sell Inventory under
any other name except as set forth on Schedule 5.6, nor has any Borrower or
Guarantor been the surviving corporation of a merger or consolidation or
acquired all or substantially all of the assets of any Person during the
preceding five (5) years except as set forth on Schedule 5.6.
5.7. OSHA and Environmental Compliance. Except as set forth on Schedule
5.7:
(a) (i) to the best knowledge of each Borrower, such Borrower and
RHC has duly complied with, and its facilities, business, assets, property,
leaseholds and equipment are in compliance in all material respects with, the
provisions of the Federal Occupational Safety and Health Act, the Environmental
Protection Act, RCRA and all other Environmental Laws; and (ii) there have been
no outstanding citations,
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notices or orders of non-compliance issued to any Borrower or Guarantor or
relating to its business, assets, property, leaseholds or equipment under any
such laws, rules or regulations.
(b) Each Borrower and RHC has been issued all required federal,
state and local licenses, certificates or permits relating to all applicable
Environmental Laws, except where the failure to obtain such licenses,
certificates or permits could not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(c) To the best knowledge of Borrowers, (i) there are no visible
signs of releases, spills, discharges, leaks or disposal (collectively referred
to as "Releases") of Hazardous Substances at, upon, under or within any Real
Property; (ii) there are no underground storage tanks or polychlorinated
biphenyls on any Real Property; (iii) no Real Property has never been used as a
treatment, storage or disposal facility of Hazardous Waste; and (iv) no
Hazardous Substances are present on any Real Property, excepting such quantities
as are handled in accordance with all applicable manufacturer's instructions and
governmental regulations and in proper storage containers and as are necessary
for the operation of the commercial business of a Borrower or Guarantor or of
its tenants.
5.8. Solvency; No Litigation, Violation, Indebtedness or Default.
(a) After giving effect to the Transactions, each Borrower and
Guarantor will be solvent, able to pay its debts as they mature, have capital
sufficient to carry on its business and all businesses in which it is about to
engage, and (i) as of the Closing Date, the fair present saleable value of its
assets, calculated on a going concern basis, is in excess of the amount of its
liabilities and (ii) subsequent to the Closing Date, the fair saleable value of
its assets (calculated on a going concern basis) will be in excess of the amount
of its liabilities.
(b) Except as disclosed in Schedule 5.8(b), none of Borrowers or RHC
has (i) any pending or threatened litigation, arbitration, action or proceeding
which could reasonably be expected to have a Material Adverse Effect, or (ii)
any Indebtedness for borrowed money other than the Obligations.
(c) No Borrower is, and RHC is not, in violation of any applicable
statute, regulation or ordinance, or of any order, writ, junction or decree of
any court, Governmental Body or arbitration board or tribunal, in each case in
any respect which could reasonably be expected to have a Material Adverse
Effect.
(d) No Borrower or member of the Controlled Group maintains or
contributes to any Plan other than those listed on Schedule 5.8(d). Except as
set forth in Schedule 5.8(d), (i) no Plan has incurred any "accumulated funding
deficiency," as defined in Section 302(a)(2) of ERISA and Section 412(a) of the
Code, whether or not waived, and Borrowers and members of the Controlled Group
have met all applicable minimum funding requirements under Section 302 of ERISA
in respect of each Plan, (ii) each Plan which is intended to be a qualified plan
under Section 401(a) of the Code as currently in effect has been determined by
the Internal Revenue Service to be qualified under Section 401(a) of the Code
and the trust related thereto is exempt from federal income tax under Section
501(a) of the Code, (iii) no Borrower or member of the Controlled Group has
incurred any liability to the PBGC other than for the payment of premiums, and
there are no premium payments which have become due which are unpaid, (iv) no
Plan has been terminated by the plan administrator thereof nor by the PBGC, and
there is no occurrence which would cause the PBGC to institute proceedings under
Title IV of ERISA to terminate any Plan, (v) at this time, the current value of
the assets of each Plan exceeds the present value of the accrued benefits and
other liabilities
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of such Plan and no Borrower or member of the Controlled Group knows of any
facts or circumstances which would materially change the value of such assets
and accrued benefits and other liabilities, (vi) no Borrower or member of the
Controlled Group has breached any of the responsibilities, obligations or duties
imposed on it by ERISA with respect to any Plan, (vii) no Borrower or member of
the Controlled Group has incurred any liability for any excise tax arising under
Section 4972 or 4980B of the Code, and, to Borrowers' knowledge, no fact exists
which could give rise to any such liability, (viii) no Borrower or member of the
Controlled Group, nor any fiduciary of, nor any trustee to, any Plan, has,
engaged in a non-exempt "prohibited transaction" described in Section 406 of the
ERISA or Section 4975 of the Code or taken any action which would constitute or
result in a Termination Event with respect to any such Plan which is subject to
ERISA, (ix) Borrowers and each member of the Controlled Group have made all
contributions due and payable with respect to each Plan, (x) no Reportable Event
has occurred and is continuing with respect to any Plan, (xi) no Borrower or
member of the Controlled Group has any fiduciary responsibility for investments
with respect to any plan existing for the benefit of persons other than
employees or former employees of a Borrower or member of the Controlled Group,
and (xii) no Borrower or member of the Controlled Group has withdrawn,
completely or partially, from any Multiemployer Plan so as to incur liability
under the Multiemployer Pension Plan Amendments Act of 1980.
5.9. Patents, Trademarks, Copyrights and Licenses. All patents, patent
applications, trademarks, trademark applications, service marks, service mark
applications, copyrights, copyright applications, design rights, trade names,
assumed names, trade secrets and licenses owned or utilized by any Borrower or
RHC are set forth on Schedule 5.9, and constitute all of the intellectual
property rights which are necessary for the operation of the business of any
Borrower or RHC. All such patents, patent applications, trademarks, trademark
applications, service marks, service mark applications, copyrights, copyright
applications, design rights, trade names, assumed names, trade secrets and
licenses which are owned by a Borrower or RHC are valid and have been duly
registered or filed with all appropriate governmental authorities set forth on
Schedule 5.9. There is no objection to or pending challenge to the validity of
any such material owned (or, to the knowledge of Borrowers, licensed) patent,
trademark, copyright, design right, trade name, trade secret or license and
Borrowers are not aware of any grounds for any challenge, except as set forth in
Schedule 5.9.
5.10. Licenses and Permits. Except as set forth in Schedule 5.10, each
Borrower and RHC (a) is in compliance with and (b) has procured and is now in
possession of, all material licenses or permits required by any applicable
federal, state or local law or regulation for the operation of its business in
each jurisdiction wherein it is now conducting or proposes to conduct business
and where the failure to procure or be in compliance with such licenses or
permits could not reasonably be expected to have a Material Adverse Effect.
5.11. Default of Indebtedness. No Borrower is, and RHC is not, in default
in the payment of the principal of or interest on any Indebtedness or under any
instrument or agreement under or subject to which any Indebtedness has been
issued, which default could reasonably be expected to have a Material Adverse
Effect, and no event has occurred under the provisions of any such instrument or
agreement which with or without the lapse of time or the giving of notice, or
both, constitutes or would constitute an event of default thereunder, which
event of default could reasonably be expected to have a Material Adverse Effect.
5.12. No Default. No Borrower is, and RHC is not, in default in the
payment or performance of any of its contractual obligations, which default
could reasonably be expected to have a Material Adverse Effect, and no Default
or Event of Default has occurred and is continuing.
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5.13. No Burdensome Restrictions. None of Borrowers nor Guarantor is a
party to any contract or agreement the performance of which could reasonably be
expected to have a Material Adverse Effect. None of Borrowers nor Guarantor has
agreed or consented to cause or permit in the future (upon the happening of a
contingency or otherwise) any of its property, whether now owned or hereafter
acquired, to be subject to a Lien which is not a Permitted Encumbrance.
5.14. No Labor Disputes. None of Borrowers or Guarantor is involved in any
labor dispute; there are no strikes or walkouts or union organization of any
Borrower's or of Guarantor's employees threatened or in existence and no labor
contract is scheduled to expire during the Term other than as set forth on
Schedule 5.14 hereto.
5.15. Margin Regulations. None of Borrowers nor Guarantor is engaged, nor
will it engage, principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing" or "carrying" any
"margin stock" within the respective meanings of each of the quoted terms under
Regulation U or Regulation G of the Board of Governors of the Federal Reserve
System as now and from time to time hereafter in effect. No part of the proceeds
of any Advance will be used for "purchasing" or "carrying" "margin stock" as
defined in Regulation U of such Board of Governors.
5.16. Investment Company Act. None of Borrowers nor Guarantor is an
"investment company" registered or required to be registered under the
Investment Company Act of 1940, as amended, nor is it controlled by such a
company.
5.17. Disclosure. No representation or warranty made by Richton or any of
its Subsidiaries in this Agreement or in any financial statement, report,
certificate or any other document furnished in connection herewith contains any
untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein not misleading. There is no
fact known to any Borrower which such Borrower has not disclosed to Agent in
writing with respect to the transactions contemplated by this Agreement which
could reasonably be expected to have a Material Adverse Effect.
5.18. Swaps. Other than the Interest Rate Protection Agreement, none of
Borrowers nor Guarantor is a party to, nor will it be a party to, any swap
agreement whereby a Borrower or Guarantor has agreed or will agree to swap
interest rates or currencies unless same provides that damages upon termination
following an event of default thereunder are payable on an unlimited "two-way
basis" without regard to fault on the part of either party.
5.19. Conflicting Agreements. No provision of any material mortgage,
indenture, contract, agreement, judgment, decree or order binding on a Borrower
or on Guarantor or affecting the Collateral or the Guarantor Collateral
conflicts with, or requires any Consent which has not already been obtained to,
or would in any way prevent the execution, delivery or performance of, the terms
of this Agreement or the Other Documents.
5.20. Application of Certain Laws and Regulations. None of Borrowers,
Guarantor nor any of their Affiliates is subject to any statute, rule or
regulation which regulates the incurrence of any Indebtedness, including without
limitation, statutes or regulations relative to common or interstate carriers or
to the sale of electricity, gas, steam, water, telephone, telegraph or other
public utility services.
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5.21. Business and Property of Borrowers and Guarantor. Each Borrower and
Guarantor owns or leases all the property and possess all of the rights and
Consents necessary for the conduct of the business of such Borrower or of
Guarantor, as the case may be, as currently conducted (other than rights and
Consents the failure to obtain which would reasonably be expected to have a
Material Adverse Effect), and such property is not subject to any Liens (other
than Permitted Encumbrances).
5.22. RHC; HTAC. RHC is a holding company whose sole assets are all of the
issued and outstanding shares of capital stock of Century, HTAC and CBE. HTAC is
a holding company whose sole asset is all of the issued and outstanding shares
of capital stock of CBC.
5.23. Year 2000. Each Borrower and Guarantor has reviewed the areas within
its business and operations which could be adversely affected by, and has
developed or is developing a course of action to address on a timely basis, the
risk that certain computer applications used by such Borrower or by Guarantor
may be unable to recognize and perform properly date-sensitive functions
involving dates prior to and after December 31, 1999 (the "Year 2000 Problem").
None of Borrowers nor Guarantor believes that any of its material suppliers,
customers or vendors will not address the Year 2000 Problem on a timely basis.
The Year 2000 Problem is not reasonably expected to result in any Material
Adverse Effect.
VI. AFFIRMATIVE COVENANTS.
Each Borrower (or, in the case of Sections 6.10 and 6.11, Borrowers)
shall, and, except for Section 6.1 hereof, Richton shall cause Guarantor to,
until payment in full of the Obligations and termination of this Agreement:
6.1. Payment of Fees. In addition to other fees to be paid by Borrowers
hereunder, pay to Agent on demand all usual and customary fees and expenses
which Agent incurs in connection with (a) the forwarding of Advance proceeds and
(b) the establishment and maintenance of any Blocked Accounts and Depository
Accounts as provided for in Section 4.15(h) hereof. Agent may, without making
demand, charge Borrowers' Account for all such fees and expenses.
6.2. Conduct of Business and Maintenance of Existence and Assets. (a)
Conduct continuously and operate actively its business according to good
business practices and maintain all of its properties useful or necessary in its
business in good working order and condition (reasonable wear and tear excepted
and except as may be disposed of in accordance with the terms of this
Agreement), including, without limitation, all licenses, patents, copyrights,
design rights, trade names, trade secrets and trademarks and take all actions
necessary to enforce and protect the validity of any intellectual property right
or other right useful or necessary in its business; (b) keep in full force and
effect its existence and comply in all material respects with the laws and
regulations governing the conduct of its business where the failure to do so
could reasonably be expected to have a Material Adverse Effect; and (c) make all
such reports and pay all such franchise and other taxes and license fees and do
all such other acts and things as may be lawfully required to maintain its
rights, licenses, leases, powers and franchises under the laws of the United
States or any political subdivision thereof where the failure to do so could
reasonably be expected to have a Material Adverse Effect.
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6.3. Violations. Promptly notify Agent in writing of any violation of any
law, statute, regulation or ordinance of any Governmental Body, or of any agency
thereof, applicable to such Borrower or any Guarantor which could reasonably be
expected to have a Material Adverse Effect.
6.4. Government Receivables. Take all steps reasonably requested by Agent
which are necessary to protect Agent's interest in the Collateral and the
Guarantor Collateral under the Federal Assignment of Claims Act or other
applicable state or local statutes or ordinances relating to Receivables arising
out of contracts between such Borrower (or accounts receivable arising out of
contracts between Guarantor) and the United States, any state or any department,
agency or instrumentality of any of them, and deliver to Agent appropriately
endorsed, any instrument or chattel paper connected with any Receivable arising
out of contracts between such Borrower (or accounts receivable arising out of
contracts between Guarantor) and the United States, any state or any department,
agency or instrumentality of any of them.
6.5. Execution of Supplemental Instruments. Execute and deliver to Agent
from time to time, upon demand, such supplemental agreements, statements,
assignments and transfers, or instructions or documents relating to the
Collateral or the Guarantor Collateral, and such other instruments as Agent may
reasonably request, in order that the full intent of this Agreement and the
Other Documents may be carried into effect.
6.6. Payment of Indebtedness. Pay, discharge or otherwise satisfy at or
before maturity (subject, where applicable, to specified grace periods and, in
the case of the trade payables, to normal payment practices) all its obligations
and liabilities of whatever nature, except when the failure to do so could not
reasonably be expected to have a Material Adverse Effect or when the amount or
validity thereof is currently being contested in good faith and by appropriate
proceedings and with respect to which proper reserves have been taken by such
Borrower or by Guarantor in accordance with GAAP, subject at all times to any
applicable subordination arrangement in favor of Agent and Lenders.
6.7. Standards of Financial Statements. Cause all financial statements
referred to in Sections 9.7, 9.8, 9.9, 9.12 and 9.13 hereof as to which GAAP is
applicable to fairly present (subject, in the case of interim financial
statements, to normal year-end audit adjustments and, other than with respect to
financial statements referred to in Section 9.7 hereof, the absence of financial
statement footnotes) the financial condition(s) of the Person(s) to which it
relates and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein (except as
concurred in by the reporting accountants or officer, as the case may be, and
disclosed therein).
6.8. Interest Rate Protection Agreement. In the case of Borrowers, enter
into the Interest Rate Protection Agreement within ninety (90) days after the
Closing Date.
6.9. Real Property Leases. Cause (a)(i) the rent due under each lease
relating to all or any portion of any Real Property leased by such Borrower or
by Guarantor to be payable to the landlord under such lease monthly in advance,
and (ii) to be delivered to and maintained by the landlord under each such lease
a security deposit in an amount equal to at least one month's rent under such
lease, or (b) the landlord of such property to enter into a landlord's lien
waiver in favor of Agent and the Lenders in the form attached hereto as Exhibit
7.11, or (c) to be established a reserve in a manner reasonably acceptable to
Agent in an amount equal to at least two (2) months' rent.
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6.10. Fixed Charge Coverage Ratio. Maintain a Fixed Charge Coverage Ratio
of not less than 1.10 to 1.00 at the end of each fiscal quarter of Borrowers
(commencing with the fiscal quarter of Borrowers ending on September 30, 1999)
for the period of four (4) consecutive fiscal quarters of Borrowers then ending.
6.11. Leverage Ratio. Commencing with the fiscal quarter of Borrowers
ending on September 30, 1999, maintain a Leverage Ratio of not greater than (a)
5.25 to 1.00 as of the end of the first fiscal quarter of each fiscal year of
Borrowers, (b) 4.50 to 1.00 as of the end of each of the second and third fiscal
quarters of each fiscal year of Borrowers, and (c) 3.50 to 1.00 as of the end of
the fourth fiscal quarter of each fiscal year of Borrowers.
VII. NEGATIVE COVENANTS.
No Borrower shall, and Richton shall cause Guarantor not to, until
satisfaction in full of the Obligations and termination of this Agreement:
7.1. Merger, Consolidation, Acquisition and Sale of Assets.
(a) Enter into any merger, consolidation or other reorganization
with or into any other Person or permit any other Person to consolidate with or
merge with it (in each case other than a merger of one Borrower or of Guarantor
with and into another Borrower) or acquire all or a substantial portion of the
assets of any Person, except that Century and CBE may make Permitted
Acquisitions provided that (i) the aggregate Consideration for each such
Permitted Acquisition shall not exceed one million dollars ($1,000,000), and
(ii) the aggregate Consideration for all such Permitted Acquisitions shall not
exceed two million dollars ($2,000,000) during any fiscal year of Borrowers.
(b) Sell, lease, transfer or otherwise dispose of any Collateral
(except as permitted under Section 4.3 hereof) or, in the case of Guarantor,
Guarantor Collateral (except as permitted under the Guarantor Security
Agreement), or all or substantially all of its properties or assets.
7.2. Creation of Liens. Create or suffer to exist any Lien or transfer
upon or against any of its property or assets now owned or hereafter acquired,
except Permitted Encumbrances.
7.3. Guarantees. Become liable upon the obligations of any Person by
assumption, endorsement or guaranty thereof or otherwise (other than to Lenders)
except (a) as disclosed on Schedule 7.3, and (b) the endorsement of checks in
the ordinary course of business.
7.4. Investments. Purchase or acquire obligations or stock of, or any
other interest in, any Person, except (a) obligations issued or guaranteed by
the United States of America or any agency thereof, (b) commercial paper with
maturities of not more than 180 days and a published rating of not less than A-1
or P-1 (or the equivalent rating), (c) certificates of time deposit and bankers'
acceptances having maturities of not more than 180 days and repurchase
agreements backed by United States government securities of a commercial bank if
(i) such bank has a combined capital and surplus of at least five hundred
million dollars ($500,000,000), or (ii) its debt obligations, or those of a
holding company of which it is a Subsidiary, are rated not less than A (or the
equivalent rating) by a nationally recognized investment rating agency, (d) U.S.
money market funds that invest solely in obligations issued or guaranteed by the
United States of America or
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an agency thereof, and (e) Century and CBE may make Permitted Acquisitions to
the extent permitted by Section 7.1 hereof.
7.5. Loans. Make advances, loans or extensions of credit to any Person,
including without limitation, any Parent or Affiliate of any Borrower except
with respect to (a) the extension of commercial trade credit in connection with
the sale of Inventory or the performance of services in the ordinary course of
its business, (b) loans to its employees in the ordinary course of business not
to exceed one hundred thousand dollars ($100,000) in the aggregate for all
Borrowers and for Guarantor at any time outstanding, (c) loans from Richton to
CBE or Century, (d) a loan in the amount of two million two hundred thousand
dollars ($2,200,000) outstanding on the date hereof from Richton to CBC (which
may not be reloaned to CBC once repaid except to the extent permitted under
clause (e) below), (e) additional loans from Richton to CBC not to exceed five
hundred thousand dollars ($500,000) in the aggregate at any time outstanding
(provided that no Default or Event of Default has occurred and is continuing or
would result therefrom), and (f) loans from Century to Richton, provided, that
each loan referred to in clauses (c), (d), (e) and (f) above shall be evidenced
by a promissory note in form and substance reasonably satisfactory to Agent and
each such promissory note shall be pledged to Agent and delivered to Agent (duly
endorsed in blank) to be held as Collateral pursuant hereto.
7.6. Capital Expenditures. Contract for, purchase or make any expenditure
or commitments for fixed or capital assets (including Capital Leases) in an
aggregate amount in excess of seven hundred fifty thousand dollars ($750,000)
for all Borrowers and for Guarantor during any fiscal year of Borrowers.
7.7. Dividends. Declare, pay or make any dividend or distribution on any
shares of the common stock or preferred stock of any Borrower or of Guarantor
(other than dividends or distributions payable in its stock, or split-ups or
reclassifications of its stock) or apply any of its funds, property or assets to
the purchase, redemption or other retirement of any common or preferred stock,
or of any options to purchase or acquire any such shares of common or preferred
stock of any Borrower or of Guarantor, except that so long as no Default or
Event of Default has occurred and is continuing or would result therefrom, (a)
Century may pay to RHC dividends which were declared and accrued prior to the
date hereof up to the aggregate amount of two million five hundred thousand
dollars ($2,500,000), the proceeds of which shall be used by RHC to pay
dividends to Richton, (b) the Subsidiaries of RHC may pay other cash dividends
to RHC in an aggregate amount not to exceed one million dollars ($1,000,000) in
any fiscal year of Borrowers, the proceeds of which shall be used by RHC to pay
dividends to Richton, and (c) Richton may repurchase outstanding shares of its
common stock, provided (1) the purchase price for such shares is no greater than
the price quoted for such shares on the American Stock Exchange at the time of
such purchase, and (2) the aggregate purchase price for such shares paid in any
fiscal year of Borrowers does not exceed five hundred thousand dollars
($500,000). Richton shall use the proceeds of all dividends paid to it for
general corporate purposes and for other purposes permitted under this
Agreement.
7.8. Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness for borrowed money (exclusive of trade debt) except in respect of
(a) Indebtedness to Lenders, (b) Indebtedness incurred for capital expenditures
permitted under Section 7.6 hereof, (c) Indebtedness for borrowed money to the
extent permitted under Section 7.5 hereof, and (d) existing Indebtedness set
forth on Schedule 7.8.
7.9. Nature of Business. Substantially change the nature of the business
in which it is presently engaged, or, except as specifically permitted hereby,
purchase or invest, directly or indirectly, in any assets or
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property other than in the ordinary course of business for assets or property
which are useful in, necessary for and are to be used in its business as
presently conducted.
7.10. Transactions with Affiliates. Directly or indirectly, purchase,
acquire or lease any property from, or sell, transfer or lease any property to,
or otherwise deal with, any Affiliate of any Borrower or of Guarantor, except
transactions incurred in the ordinary course of business, on an arm's-length
basis on terms no less favorable than terms which would have been obtainable
from a Person other than an Affiliate of a Borrower or of Guarantor. Nothing
contained herein shall be deemed to restrict Century or CBE from paying a
management fee to Richton during any fiscal year of Borrowers up to the amount
set forth on Schedule 7.10.
7.11. Leases. Enter as lessee into any lease arrangement for real or
personal property (other than Capital Leases permitted under Section 7.6 hereof)
if after giving effect thereto, annual rental payments (excluding amounts paid
for taxes and other expenses passed through to the lessee under such leases) for
all leased property would exceed three million five hundred thousand dollars
($3,500,000) in the aggregate for all Borrowers and for Guarantor in any one
fiscal year of Borrowers; provided, that the Borrower or Guarantor entering into
such lease shall comply with the provisions of Section 6.9 hereof.
7.12. Subsidiaries.
(a) Form or acquire any Subsidiary other any Subsidiaries acquired
in connection with a Permitted Acquisition.
(b) Enter into any partnership, joint venture or similar
arrangement; provided, that the foregoing shall not be deemed to prohibit
marketing or sales arrangements entered into by any Borrower with any other
Person which would not otherwise be restricted by any provision hereof.
7.13. Fiscal Year and Accounting Changes. Change its fiscal year end from
December 31or make any significant change (i) in accounting treatment and
reporting practices except as required by GAAP or (ii) in tax reporting
treatment except as required by law.
7.14. Pledge of Credit. Now or hereafter pledge Agent's or any Lender's
credit on any purchases or for any purpose whatsoever or use any portion of any
Advance in or for any business other than such Borrower's or Guarantor's, as the
case may be, business as conducted on the date of this Agreement.
7.15. Amendment of Articles of Incorporation, By-Laws. Amend, modify or
waive any term or material provision of its Articles of Incorporation or By-Laws
unless at least five (5) Business Days prior written notice thereof is provided
to Agent.
7.16. Compliance with ERISA. (i) engage, or permit any member of the
Controlled Group to engage, in any non-exempt "prohibited transaction", as that
term is defined in Section 406 of ERISA and Section 4975 of the Code, (ii)
incur, or permit any member of the Controlled Group to incur, any "accumulated
funding deficiency", as that term is defined in Section 302 of ERISA or Section
412 of the Code, (iii) terminate, or permit any member of the Controlled Group
to terminate, any Plan where such event could result in any liability of
Borrower, Guarantor or any member of the Controlled Group or the imposition of a
Lien on the property of any Borrower, Guarantor or any member of the Controlled
Group pursuant to Section 4068 of ERISA, (iv) assume, or permit any member of
the Controlled Group to assume, any material
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obligation to contribute to any Multiemployer Plan not disclosed on Schedule
5.8(d), (v) incur, or permit any member of the Controlled Group to incur, any
withdrawal liability to any Multiemployer Plan; (vi) fail promptly to notify
Agent of the occurrence of any Termination Event, (vii) fail to comply, or
permit a member of the Controlled Group to fail to comply, in any material
respect, with the requirements of ERISA or the Code or other applicable laws in
respect of any Plan, or (viii) fail to meet, or permit any member of the
Controlled Group to fail to meet, all minimum funding requirements under ERISA
or the Code or postpone or delay or allow any member of the Controlled Group to
postpone or delay any funding requirement with respect of any Plan.
7.17. Prepayment of Indebtedness. At any time, directly or indirectly
prepay any Indebtedness for borrowed money (other than to Lenders), or
repurchase, redeem, retire or otherwise acquire any Indebtedness of any Borrower
or of Guarantor, except that any Borrower or Guarantor may prepay Indebtedness
for borrowed money owed to any other Borrower or to Guarantor, provided that no
Default or Event of Default has occurred and is continuing at such time or would
result from such prepayment.
VIII. CONDITIONS PRECEDENT.
8.1. Conditions to Initial Advances. The agreement of Lenders to make the
initial Advances requested to be made on the Closing Date is subject to the
satisfaction, or waiver by Lenders, immediately prior to or concurrently with
the making of such Advances, of the following conditions precedent:
(a) Notes. Agent shall have received the Notes duly executed and
delivered by an authorized officer of each Borrower;
(b) Filings, Registrations and Recordings. Each document (including,
without limitation, any Uniform Commercial Code financing statement) required by
this Agreement, any Other Document or under law or reasonably requested by the
Agent to be filed, registered or recorded in order to create, in favor of Agent,
a perfected security interest in or lien upon the Collateral and the Guarantor
Collateral shall have been properly filed, registered or recorded in each
jurisdiction in which the filing, registration or recordation thereof is so
required or requested, and Agent shall have received an acknowledgment copy, or
other evidence satisfactory to it, of each such filing, registration or
recordation and satisfactory evidence of the payment of any necessary fee, tax
or expense relating thereto;
(c) Corporate Proceedings. Agent shall have received a copy of the
resolutions in form and substance reasonably satisfactory to Agent, of the Board
of Directors of each Borrower and of Guarantor authorizing (i) the execution,
delivery and performance of this Agreement and the Other Documents to which such
Borrower or Guarantor, as the case may be, is a party; and (ii) the granting by
such Borrower or by Guarantor, as the case may be, of the security interests in
and liens upon the Collateral or Guarantor Collateral, as the case may be, in
each case certified by the Secretary or an Assistant Secretary of such Borrower
or Guarantor, as the case may be, as of the Closing Date; and, such certificate
shall state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded as of the date of such certificate;
(d) Incumbency Certificates. Agent shall have received a certificate
of the Secretary or an Assistant Secretary of each Borrower and of Guarantor,
dated the Closing Date, as to the incumbency and signature of the officers of
such Borrower or of Guarantor, as the case may be, executing this Agreement and
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any Other Document to which such Borrower or Guarantor, as the case may be, is a
party, together with evidence of the incumbency of such Secretary or Assistant
Secretary;
(e) Certificates. Agent shall have received a copy of the
Certificate of Incorporation of each Borrower and of Guarantor, and all
amendments thereto, certified by the Secretary of State of its jurisdiction of
incorporation together with copies of the By-Laws of each Borrower and of
Guarantor certified as accurate and complete by the Secretary of such Borrower
or of Guarantor, as the case may be;
(f) Good Standing Certificates. Agent shall have received good
standing certificates for each Borrower and for Guarantor dated not more than 30
days prior to the Closing Date, issued by the Secretary of State or other
appropriate official of each Borrower's or of Guarantor's, as the case may be,
jurisdiction of incorporation and each jurisdiction where the conduct of such
Borrower's or of Guarantor's, as the case may be, business activities or the
ownership of its properties necessitates qualification;
(g) Legal Opinions. Agent shall have received the executed legal
opinion of (i) Robinson Brog Leinwand Greene Genovese & Gluck P.C. (with respect
to New York law), and (ii) Evans & Luptak, P.L.C. (with respect to Michigan and
Florida law), White & McDermott, P.C. (with respect to Massachusetts law), and
Altheimer & Gray (with respect to Illinois law) counsel to one or more Borrowers
and/or to Guarantor, in form and substance reasonably satisfactory to Agent,
which shall cover such matters incident to the transactions contemplated by this
Agreement and the Other Documents as Agent may reasonably require and each
Borrower hereby authorizes and directs such counsel to deliver such opinions to
Agent and Lenders;
(h) No Litigation. (i) No litigation, investigation or proceeding
before or by any arbitrator or Governmental Body shall be continuing or
threatened against any Borrower or by Guarantor, or against the officers or
directors of any Borrower or of Guarantor in connection with this Agreement or
any Other Document or any of the transactions contemplated hereby or thereby and
which, in the reasonable opinion of Agent, is material or could have a Material
Adverse Effect; and (ii) no injunction, writ, restraining order or other order
of any nature materially adverse to any Borrower or to Guarantor, or the conduct
of its business or inconsistent with the due consummation of the Transactions
shall have been issued by any Governmental Body;
(i) Financial Condition Certificate. Agent shall have received an
executed Financial Condition Certificate in the form attached hereto as Exhibit
8.1(i);
(j) Collateral Examination. Agent shall have completed Collateral
and Guarantor Collateral examinations and received appraisals, the results of
which shall be satisfactory in form and substance to Lenders, of the
Receivables, Inventory, General Intangibles and Equipment of each Borrower, of
all Guarantor Collateral, and all books and records in connection therewith;
(k) Fees. Agent shall have received all fees payable to Agent and
Lenders on or prior to the Closing Date pursuant to Article III hereof;
(l) Pro Forma Financial Statements. Agent shall have received a copy
of the Pro Forma Financial Statements which shall be satisfactory in all
respects to Lenders;
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(m) Insurance. Agent shall have received evidence of compliance with
the provisions of Section 4.11 hereof and the Guarantor Security Agreement
(including, without limitation, insurance certificates), in form and substance
reasonably satisfactory to Agent;
(n) Certain Other Documents. Agent shall have received true and
complete copies of (i) the Subordinated Note dated October 26, 1993, executed by
Richton in favor of Sullivan, in the principal amount of $1,181,250, (ii) the
Subordinated Note dated March 29, 1995, executed by Richton in favor of
Sullivan, in the principal amount of $1,000,000, and (iii) all other documents
relating thereto as may be reasonably requested by Agent.
(o) Subordination Agreement. Agent shall have received the
Subordination Agreement, duly executed and delivered by Sullivan and an
authorized officer of Richton.
(p) Guaranty; Guarantor Security Agreement. Agent shall have
received the Guaranty and the Guarantor Security Agreement, duly executed by an
authorized officer of Guarantor.
(q) Notice of Borrowing and Payment Instructions. Agent shall have
received from Borrowing Agent a written notice of borrowing requesting, and
written instructions directing the application of proceeds of, the initial
Advances made pursuant to this Agreement;
(r) Blocked Account. Agent shall have received (i) duly executed
agreements establishing a Blocked Account with Lender for the collection or
servicing of the Receivables and the proceeds of the other Collateral, and (ii)
evidence that each Borrower has instructed all of its Customers to remit all
payments on account of such Borrower's Receivables to such Blocked Account;
(s) Consents. Agent shall have received any and all Consents
necessary to permit the effectuation of the Transactions; and Agent shall have
received such Consents and waivers of such third parties as might assert claims
with respect to the Collateral and the Guarantor Collateral, as Agent and its
counsel shall reasonably deem necessary;
(t) No Adverse Material Change. (i) Since December 31, 1998, there
shall not have occurred any event, condition or state of facts which could
reasonably be expected to have a Material Adverse Effect, and (ii) no
representations made or information supplied to Agent by or on behalf of any
Borrower or Guarantor shall have been proven to be inaccurate or misleading in
any material respect;
(u) Leasehold Agreements. Agent shall have received landlord's lien
waivers in favor of Agent and the Lenders in the form attached hereto as Exhibit
7.11 with respect to each Real Property leased by a Borrower or by Guarantor set
forth on Schedule 8.1;
(v) Contract Review. Agent shall have reviewed all material
contracts of each Borrower including, without limitation, leases, union
contracts, labor contracts, vendor supply contracts, license agreements and
distributorship agreements and such contracts and agreements shall be
satisfactory in all respects to Agent;
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(w) Closing Certificate. Agent shall have received a closing
certificate signed by the Chief Financial Officer of Richton dated as of the
date hereof, stating that (i) all representations and warranties of each
Borrower and of Guarantor set forth in this Agreement and the Other Documents to
which it is a party are true and correct in all material respects on and as of
such date, (ii) each Borrower and Guarantor is on such date in compliance with
all the terms and provisions set forth in this Agreement and the Other Documents
to which it is a party, and (iii) on such date no Default or Event of Default
has occurred or is continuing;
(x) Borrowing Base Certificate. Agent shall have received a
Borrowing Base Certificate evidencing that the aggregate amount of Eligible
Receivables and Eligible Inventory of each Borrower is sufficient in value and
amount to support Revolving Advances in the amount requested by Borrowing Agent
on the Closing Date;
(y) Undrawn Availability. After giving effect to the initial
Advances hereunder, Borrowers shall have Undrawn Availability of at least three
million dollars ($3,000,000), as evidenced by a Borrowing Base Certificate;
(z) Capitalized Indebtedness. Agent shall have received evidence
reasonably satisfactory to it that three million dollars ($3,000,000) of the
Indebtedness for borrowed money owed by CBE to Richton, as reflected on the
consolidated balance sheet of Richton and its Subsidiaries dated December 31,
1998, has been capitalized; and
(aa) Other. All corporate and other proceedings, and all documents,
instruments and other legal matters in connection with the Transactions shall be
satisfactory in form and substance to Agent and its counsel.
8.2. Conditions to Each Advance. The agreement of Lenders to make any
Advance requested to be made on any date (including, without limitation, the
initial Advances), is subject to the satisfaction of the following conditions
precedent as of the date such Advance is made:
(a) Representations and Warranties. Each of the representations and
warranties made by each Borrower or by Guarantor in or pursuant to this
Agreement and any Other Document to which it is a party, and each of the
representations and warranties contained in any certificate, document or
financial or other statement furnished at any time under or in connection with
this Agreement or any Other Document to which it is a party shall be true and
correct in all material respects on and as of such date as if made on and as of
such date;
(b) No Event of Default. No Event of Default shall have occurred and
be continuing on such date, or would exist after giving effect to the Advances
requested to be made on such date; provided, however, that Lenders, in their
sole discretion, may continue to make Advances notwithstanding the existence of
an Event of Default and that any Advances so made shall not be deemed a waiver
of any such Event of Default; and
(c) Maximum Advances. In the case of any Advances requested to be
made, after giving effect thereto, the aggregate Advances shall not exceed the
maximum amount of Advances permitted under any provision of this Agreement.
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Each request for an Advance by Borrowing Agent hereunder shall constitute a
representation and warranty by each Borrower as of the date of such Advance that
the conditions contained in this Section 8.2 shall have been satisfied.
IX. INFORMATION AS TO BORROWERS.
Each Borrower shall (and Richton shall cause Guarantor to), until
satisfaction in full of the Obligations and the termination of this Agreement:
9.1. Disclosure of Material Matters. Immediately upon learning thereof,
report to Agent all matters materially affecting the value, enforceability or
collectibility of any portion of its Collateral or Guarantor Collateral,
including, without limitation, such Borrower's or Guarantor's reclamation or
repossession of, or the return to such Borrower or to Guarantor of, a material
amount of goods or claims or disputes asserted by any customer of such Borrower
or of Guarantor or other obligor.
9.2. Schedules. Deliver to Agent (a) on or before the fifteenth (15th) day
of each month as and for the prior month (1) accounts receivable ageings, and
(2) accounts payable aging summaries, and (b) promptly upon the request of
Agent, inventory reports. In addition, each Borrower and Guarantor will deliver
to Agent at such intervals as Agent may require: (i) confirmatory assignment
schedules, (ii) copies of customer's invoices, (iii) evidence of shipment or
delivery, and (iv) such further schedules, documents and/or information
regarding the Collateral or the Guarantor Collateral as Agent may reasonably
require including, without limitation, trial balances and test verifications.
Agent shall have the right to confirm and verify all Receivables by any manner
and through any medium it considers advisable and do whatever it may deem
reasonably necessary to protect its interests hereunder. The items to be
provided under this Section 9.2 are to be in form reasonably satisfactory to
Agent and executed by such Borrower or by Guarantor, as the case may be, and
delivered to Agent from time to time solely for Agent's convenience in
maintaining records of the Collateral and the Guarantor Collateral, and any
failure to deliver any of such items to Agent shall not affect, terminate,
modify or otherwise limit Agent's Lien with respect to the Collateral.
9.3. Environmental Reports. Furnish Agent, promptly after receipt thereof
by such Borrower, with copies of all environmental reports performed by or on
behalf of such Borrower or Guarantor with regard to any Real Property owned or
leased by such Borrower or by Guarantor.
9.4. Litigation. Promptly notify Agent in writing of any litigation, suit
or administrative proceeding affecting such Borrower or Guarantor, whether or
not the claim is covered by insurance, and of any suit or administrative
proceeding, which in any such case could reasonably be expected to have a
Material Adverse Effect.
9.5. Material Occurrences. Promptly notify Agent in writing upon the
occurrence of (a) any Event of Default or Default; (b) any event, development or
circumstance whereby any financial statements or other reports furnished to
Agent fail in any material respect to present fairly, in accordance with GAAP
consistently applied, the financial condition or operating results of Richton or
any of its Subsidiaries as of the date of such statements; (c) any accumulated
retirement plan funding deficiency which, if such deficiency continued for two
plan years and was not corrected as provided in Section 4971 of the Code, could
subject any Borrower or Guarantor to a tax imposed by Section 4971 of the Code;
(d) each and every default by such Borrower or by Guarantor which might result
in the acceleration of the maturity of any Indebtedness in excess
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of seven hundred fifty thousand dollars ($750,000), including the names and
addresses of the holders of such Indebtedness with respect to which there is a
default existing or with respect to which the maturity has been or could be
accelerated, and the amount of such Indebtedness; (e) any other development in
the business or affairs of such Borrower or of Guarantor which could reasonably
be expected to have a Material Adverse Effect; and (f) any development in the
business or affairs of CBC which could reasonably be expected to have a material
adverse effect on the condition (financial or otherwise), operations, assets or
business of CBC, in each case describing the nature thereof and the action such
Borrower, Guarantor or CBC, as the case may be, proposes to take with respect
thereto.
9.6. Government Receivables. Notify Agent immediately if any of its
Receivables (or accounts receivable, in the case of Guarantor) arise out of
contracts between such Borrower (or Guarantor) and the United States, any state,
or any department, agency or instrumentality of any of them.
9.7. Annual Financial Statements. Furnish Agent within ninety (90) days
after the end of each fiscal year of Borrowers, a consolidated and consolidating
balance sheet of Richton and its Subsidiaries as of the end of such fiscal year,
and the related statements of income, change in stockholder's equity and cash
flow for the period ended on such date, all prepared in accordance with GAAP
applied on a basis consistent with prior practices, and in reasonable detail
and, with respect to all such consolidated financial statements, reported upon
without qualification by an independent certified public accounting firm
selected by Borrowing Agent and reasonably satisfactory to Agent (the
"Accountants"). The report of the Accountants shall be accompanied by a
statement of the Accountants certifying that (i) they have read this Agreement,
(ii) in making the examination upon which such report was based either no
information came to their attention which to their knowledge constituted a
Default or an Event of Default under this Agreement, or, if such information
came to their attention, specifying any such Default or Event of Default, its
nature, when it occurred and whether it is continuing, and such report shall
contain or have appended thereto calculations which set forth Borrowers'
compliance with the requirements or restrictions imposed by Sections 6.10, 6.11
and 7.11 hereof. In addition, the reports shall be accompanied by a certificate
of each Borrower's Chief Financial Officer which shall state that, to the best
of his knowledge, no Default or Event of Default exists, or, if such is not the
case, specifying such Default or Event of Default, its nature, when it occurred,
whether it is continuing and the steps being taken by Borrowers with respect to
such Default or Event of Default, and such certificate shall have appended
thereto calculations which set forth Borrowers' compliance with the requirements
or restrictions imposed by Sections 6.10, 6.11 and 7.11 hereof.
9.8. Quarterly Financial Statements. Furnish Agent (a) within forty-five
(45) days after the end of each fiscal quarter of Borrowers (other than the last
fiscal quarter), the consolidated balance sheet of Richton and its Subsidiaries
as of the end of such fiscal quarter, and the related consolidated statements of
income, change in stockholder's equity and cash flow for the fiscal quarter and
the year-to-date period ended on such date, and (b) within sixty (60) days after
the end of each fiscal quarter of Borrowers (other than the last fiscal
quarter), the consolidating balance sheet of Richton and its Subsidiaries as of
the end of such fiscal quarter, and the related consolidating statements of
income, change in stockholder's equity and cash flow for the fiscal quarter and
the year-to-date period ended on such date, in each case prepared in accordance
with GAAP applied on a basis consistent with prior practices, subject to normal
year end adjustments and the absence of financial statement footnotes (except to
the extent required to be included in Richton's Form 10- Q). The reports shall
be accompanied by a certificate signed by each Borrower's Chief Financial
Officer which shall state that to the best of his knowledge, no Default or Event
of Default exists, or, if such is not the case, specifying such Default or Event
of Default, its nature, when it occurred, whether it is continuing and the steps
being taken by Borrowers with respect to such Default or Event of Default and,
such certificate shall
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have appended thereto calculations which set forth Borrowers' compliance with
the requirements or restrictions imposed by Sections 6.10, 6.11 and 7.11 hereof.
9.9. Monthly Financial Statements. Furnish Agent within twenty (20) days
after the end of each month, an unaudited consolidated balance sheet of Century
and its Subsidiary as of the end of such month, and the related consolidated
statements of income, change in stockholder's equity and cash flow for the month
and the year-to-date period ended on such date, in each case prepared on a basis
consistent with prior practices and complete and correct in all material
respects, subject to normal year end adjustments and the absence of financial
statement footnotes. The reports shall be accompanied by a certificate of the
Chief Financial Officer of Richton, which shall state that to the best of his
knowledge, no Default or Event of Default exists, or, if such is not the case,
specifying such Default or Event of Default, its nature, when it occurred,
whether it is continuing and the steps being taken by Borrowers with respect to
such Default or Event of Default.
9.10. Borrowing Base Certificates. Furnish Agent (a) within twenty (20)
days after the end of each month, a Borrowing Base Certificate for (i) Century
and CBE, as of the last Business Day of such month, (b) at any time within three
(3) Business Days after requested by Agent, a Borrowing Base Certificate for
Century and CBE, as of the most recent date that such Borrowing Base Certificate
may be calculated, (c) during each Seasonal Advance Period, on each Business
Day, a sales report from Century indicating the net sales of Century for the
prior business day, and (d) on the first Business Day of each week (or more
frequently if reasonably required by Agent), a sales report from CBE and, if not
during the Seasonal Advance Period, Century, indicating the net sales of such
Borrower(s) for the prior week.
9.11. Other Reports. Furnish Agent as soon as available, but in any event
within ten (10) days after the issuance thereof, (i) with copies of such
financial statements, reports and returns as such Borrower or Guarantor shall
send to its stockholders, (ii) copies of all notices or reports which such
Borrower or Guarantor may now or hereafter be required to file with the
Securities and Exchange Commission, or any other Governmental Body succeeding to
the functions thereof, and (iii) all reports, if any, submitted to Richton or
any of its Subsidiaries by the Accountants in connection with each audit of the
books of Richton and its Subsidiaries made by the Accountants, including,
without limitation, any management letter commenting on the internal controls of
Richton or any of its Subsidiaries submitted by the Accountants to management in
connection with their audit.
9.12. Additional Information. Furnish Agent with such additional
information as Agent shall reasonably request in order to enable Agent to
determine whether the terms, covenants, provisions and conditions of this
Agreement and the Other Documents have been complied with by such Borrower or by
Guarantor, including, without limitation and without the necessity of any
request by Agent, (a) at least thirty (30) days prior thereto, notice of such
Borrower's or of Guarantor's opening of any new office or place of business or
such Borrower's or Guarantor's closing of any existing office or place of
business, and (b) promptly upon such Borrower's or Guarantor's learning thereof,
notice of any labor dispute to which such Borrower or Guarantor may become a
party, any strikes or walkouts relating to any of its plants or other
facilities, and the expiration of any labor contract to which such Borrower or
Guarantor is a party or by which such Borrower or Guarantor is bound.
9.13. Projected Operating Budget. Furnish Agent, no later than thirty (30)
days prior to the beginning of each fiscal year of Borrowers', commencing with
fiscal year 2000, a quarter by quarter projected operating budget and cash flow
of Richton and its Subsidiaries on a consolidated and consolidating basis for
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such fiscal year (including an income statement for each quarter and a balance
sheet as at the end of each fiscal quarter), together with (a) in the case of
each consolidated operating budget and each consolidating operating budget for
Richton, a certificate signed by the Chief Financial Officer of Richton, and (b)
in the case of each consolidating operating budget for Century and CBE, a
certificate signed by the Controller of Century or CBE, as the case may be, in
each case to the effect that such operating budget has been prepared on the
basis of sound financial planning practice consistent with past budgets and
financial statements and that such officer has no reason to question the
reasonableness of any material assumptions on which such projections were
prepared.
9.14. Notice of Suits, Adverse Events. Furnish Agent with prompt notice of
(i) any lapse or other termination of any Consent issued to any Borrower or to
Guarantor by any Governmental Body or any other Person that is material to the
operation of such Borrower's or Guarantor's business, (ii) any refusal by any
Governmental Body or any other Person to renew or extend any such Consent; and
(iii) copies of any periodic or special reports filed by such Borrower or by
Guarantor with any Governmental Body or Person, if such reports indicate any
material change in the business, operations, affairs or condition of any
Borrower or of Guarantor, or if copies thereof are requested by Agent, and (iv)
copies of any material notices and other communications from any Governmental
Body or Person which specifically relate to any Borrower or to Guarantor.
9.15. ERISA Notices and Requests. Furnish Agent with prompt written notice
in the event that (i) any Borrower or member of the Controlled Group knows or
has reason to know that a Termination Event has occurred, together with a
written statement describing such Termination Event and the action, if any,
which any Borrower or member of the Controlled Group has taken, is taking, or
proposes to take with respect thereto and, when known, any action taken or
threatened by the Internal Revenue Service, Department of Labor or PBGC with
respect thereto, (ii) any Borrower or member of the Controlled Group knows or
has reason to know that a prohibited transaction (as defined in Sections 406 of
ERISA and 4975 of the Code) has occurred together with a written statement
describing such transaction and the action which any Borrower or member of the
Controlled Group has taken, is taking or proposes to take with respect thereto,
(iii) a funding waiver request has been filed with respect to any Plan together
with all communications received by any Borrower or member of the Controlled
Group with respect to such request, (iv) any increase in the benefits of any
existing Plan or the establishment of any new Plan or the commencement of
contributions to any Plan to which any Borrower or member of the Controlled
Group was not previously contributing shall occur, (v) any Borrower or member of
the Controlled Group shall receive from the PBGC a notice of intention to
terminate a Plan or to have a trustee appointed to administer a Plan, together
with copies of each such notice, (vi) any Borrower or member of the Controlled
Group shall receive any favorable or unfavorable determination letter from the
Internal Revenue Service regarding the qualification of a Plan under Section
401(a) of the Code, together with copies of each such letter; (vii) any Borrower
or member of the Controlled Group shall receive a notice regarding the
imposition of withdrawal liability, together with copies of each such notice;
(viii) any Borrower or member of the Controlled Group shall fail to make a
required installment or any other required payment under Section 412 of the Code
on or before the due date for such installment or payment; (ix) any Borrower or
member of the Controlled Group knows that (a) a Multiemployer Plan has been
terminated, (b) the administrator or plan sponsor of a Multiemployer Plan
intends to terminate a Multiemployer Plan, or (c) the PBGC has instituted or
will institute proceedings under Section 4042 of ERISA to terminate a
Multiemployer Plan.
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9.16. Additional Documents. Execute and deliver to Agent, upon request,
such documents and agreements as Agent may, from time to time, reasonably
request to carry out the purposes, terms or conditions of this Agreement or any
Other Document.
X. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute
an "Event of Default" hereunder:
10.1. failure by Borrowers to pay to Agent and/or any Lender, as
appropriate, (a) any principal or interest on the Obligations or any facility
fee due under Section 3.3 hereof when due, whether at maturity or by reason of
acceleration pursuant to the terms of this Agreement, or by required prepayment,
or (b) any other liabilities or make any other payment, fee or charge provided
for herein or in any Other Document within five (5) days of when due;
10.2. any representation or warranty made (or deemed made under Section
8.2 hereof) by any Borrower or by Guarantor in this Agreement, in any Other
Document or in any financial or other statement furnished at any time in
connection herewith or therewith shall prove to have been misleading in any
material respect on the date when made (or deemed to have been made);
10.3. failure by any Borrower to (i) furnish a Borrowing Base Certificate
when required under Section 9.10 hereof, (ii) furnish financial information
required hereunder within five (5) days of when due or when requested, or (iii)
permit the inspection of its books or records;
10.4. issuance of a notice of Lien (other than with respect to a Permitted
Encumbrance), levy, assessment, injunction or attachment in excess of two
hundred fifty thousand dollars ($250,000) in the aggregate against the property
of one or more Borrowers and/or Guarantor which is not stayed or lifted within
thirty (30) days, unless contested in good faith and by appropriate proceedings
and with respect to which reserves have been taken by such Borrower(s) and/or by
Guarantor which are satisfactory to Agent;
10.5. except as otherwise provided for in Sections 10.1 and 10.3 hereof,
failure or neglect of any Borrower or of Guarantor to perform, keep or observe
any term, provision, condition, covenant contained herein, in any Other Document
or in any other agreement or arrangement, now or hereafter entered into between
any Borrower or Guarantor, on the one hand, and Agent or any Lender on the other
hand, except for a failure or neglect of any Borrower or of Guarantor to
perform, keep or observe any term, provision, condition or covenant, contained
in Sections 4.6, 4.7, 4.9, 4.11, 4.19, 6.3, 6.4, 6.5, 6.6, 9.3, 9.4, 9.6,
9.12(b) or 9.16 hereof which is cured within thirty (30) days from the
occurrence of such failure or neglect;
10.6. any judgment or judgments are rendered or judgment liens filed
against one or more Borrowers and/or Guarantor for an aggregate amount for all
Borrowers and Guarantor in excess of two hundred fifty thousand dollars
($250,000) which within thirty (30) days of such rendering or filing is not
either satisfied, stayed or discharged of record, unless contested in good faith
and by appropriate proceedings and with respect to which reserves have been
taken by Borrowers and/or Guarantor which are satisfactory to Agent;
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10.7. any Borrower or Guarantor shall (i) apply for, consent to or suffer
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, liquidator or similar fiduciary of itself or of all or a substantial
part of its property, (ii) make a general assignment for the benefit of
creditors, (iii) commence a voluntary case under any state or federal bankruptcy
laws (as now or hereafter in effect), (iv) be adjudicated a bankrupt or
insolvent, (v) file a petition seeking to take advantage of any other law
providing for the relief of debtors, (vi) acquiesce to, or fail to have
dismissed, within sixty (60) days, any petition filed against it in any
involuntary case under such bankruptcy laws, or (vii) take any action for the
purpose of effecting any of the foregoing;
10.8. any Borrower or Guarantor shall admit in writing its inability, or
be generally unable, to pay its debts as they become due or shall cease
operations of its business;
10.9. any Lien created hereunder or under any Other Document or provided
for hereby or thereby relating to Collateral and/or Guarantor Collateral with a
fair market value, individually or in the aggregate, of three hundred thousand
dollars ($300,000) or more for any reason ceases to be or is not a valid and
perfected Lien having a first priority interest (subject to Permitted
Encumbrances);
10.10. a default of the obligations of any Borrower or of RHC under any
other agreement to which it is a party shall occur which materially and
adversely affects its condition, affairs (financial or otherwise) which default
is not cured within any applicable grace period;
10.11. any Change of Control shall occur;
10.12. any material provision of this Agreement shall, for any reason,
cease to be valid and binding on any Borrower, or any Borrower shall so claim in
writing to Agent;
10.13. termination of the Guaranty, or if Guarantor attempts to terminate,
challenges the validity of, or its liability under, the Guaranty;
10.14. (i) any Governmental Body shall (A) revoke, terminate, suspend or
adversely modify any license, permit, patent, trademark or trade name of any
Borrower or Guarantor, the continuation of which is material to the continuation
of such Borrower's or of Guarantor's business, or (B) commence proceedings to
suspend, revoke, terminate or adversely modify any such license, permit,
trademark, trade name or patent and such proceedings shall not be dismissed or
discharged within sixty (60) days, or (c) schedule or conduct a hearing on the
renewal of any license, permit, trademark, trade name or patent necessary for
the continuation of such Borrower's or of Guarantor's business and the staff of
such Governmental Body issues a report recommending the termination, revocation,
suspension or material, adverse modification of such license, permit, trademark,
trade name or patent; (ii) any agreement which is necessary or material to the
operation of any Borrower's or of Guarantor's business shall be revoked or
terminated and not replaced by a substitute acceptable to Agent within thirty
(30) days after the date of such revocation or termination, and such revocation
or termination and non-replacement would, in the reasonable judgment of Agent,
have a Material Adverse Effect;
10.15. any material portion of the Collateral or the Guarantor Collateral
shall be seized or taken by a Governmental Body, or the title and rights of any
Borrower or of Guarantor in or to any material portion of the Collateral or the
Guarantor Collateral, as the case may be, shall have become the subject matter
of litigation which would, in the reasonable judgment of Agent, have a Material
Adverse Effect; or
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10.16. an event or condition specified in Sections 7.16 or 9.15 hereof
shall occur or exist with respect to any Plan and, as a result of such event or
condition, together with all other such events or conditions, any Borrower or
any member of the Controlled Group shall incur, or in the opinion of Agent be
reasonably likely to incur, a liability to a Plan or the PBGC (or both) which,
in the reasonable judgment of Agent, would have a Material Adverse Effect.
XI. LENDERS' RIGHTS AND REMEDIES AFTER DEFAULT.
11.1. Rights and Remedies. Upon the occurrence and during the continuance
of (i) an Event of Default pursuant to Section 10.7 hereof, all Obligations
shall be immediately due and payable and this Agreement and the obligation of
Lenders to make Advances shall be deemed terminated; and, (ii) any of the other
Events of Default and at any time thereafter (such default not having previously
been cured), at the option of the Required Lenders all Obligations shall be
immediately due and payable and Lenders shall have the right to terminate this
Agreement and to terminate the obligation of Lenders to make Advances, and (iii)
a filing of a petition against any Borrower in any involuntary case under any
state or federal bankruptcy laws, the obligation of Lenders to make Advances
hereunder shall be terminated other than as may be required by an appropriate
order of the bankruptcy court having jurisdiction over such Borrower. Upon the
occurrence and during the continuance of any Event of Default, Agent shall, at
the request of the Required Lenders, or may, with the consent of the Required
Lenders, (a) exercise any and all other rights and remedies provided for herein,
under the Uniform Commercial Code and at law or equity generally, including,
without limitation, the right to foreclose the security interests granted herein
and to realize upon any Collateral by any available judicial procedure and/or to
take possession of and sell any or all of the Collateral with or without
judicial process; (b) enter any of Borrowers' premises or other premises without
legal process and without incurring liability to Borrowers therefor, and Agent
may thereupon, or at any time thereafter, in its discretion without notice or
demand, take the Collateral and remove the same to such place as Agent may deem
advisable and Agent may require Borrowers to make the Collateral available to
Agent at a place convenient to Agent; (c) with or without having the Collateral
at the time or place of sale, sell the Collateral, or any part thereof, at
public or private sale, at any time or place, in one or more sales, at such
price or prices, and upon such terms, either for cash, credit or future
delivery, as Agent may elect; and/or (d) withdraw all monies, securities, and
instruments in the Blocked Account (or in any other account under Agent's or any
Lender's control) for application to the Obligations as set forth below. Except
as to that part of the Collateral which is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market, if
any, Agent shall give Borrowers reasonable notification of such sale or sales,
it being agreed that in all events written notice mailed to Borrowing Agent at
least seven (7) days prior to such sale or sales is reasonable notification. At
any public sale Agent or any Lender may bid for and become the purchaser, and
Agent, any Lender or any other purchaser at any such sale thereafter shall hold
the Collateral sold absolutely free from any claim or right of whatsoever kind
(other than, in the case of Agent, the duty to account for surplus proceeds),
including any equity of redemption and such right and equity are hereby
expressly waived and released by Borrowers. In connection with the exercise of
the foregoing remedies, Agent is granted permission to use all of Borrowers'
trademarks, trade styles, trade names, patents, patent applications, licenses,
franchises and other proprietary rights which are used in connection with (a)
Inventory for the purpose of disposing of such Inventory and (b) Equipment for
the purpose of completing the manufacture of unfinished goods. Afer the
occurrence and during the continuance of an Event of Default, the proceeds
realized from the sale or disposition of any Collateral and all payments in
respect of any Obligations shall be applied as follows: first, to the reasonable
costs, expenses and attorneys' fees and expenses incurred by Agent for
collection and for acquisition, completion, protection, removal, storage, sale
and delivery of the Collateral and the Guarantor
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Collateral; second, to interest due upon any of the Obligations and any fees
payable under this Agreement and the Other Documents; third, to the principal of
the Obligations; fourth, to the payment of any other Obligations then remaining
unpaid; and fifth, the surplus, if any, shall be paid to Borrowers or to
whomsoever may be lawfully entitled to receive the same . If any deficiency
shall arise, Borrowers shall remain liable to Agent and Lenders therefor.
11.2. Agent's Discretion. Agent shall have the right in its sole
discretion (subject to any requirement herein to obtain the consent of the
Required Lenders) to determine which rights, Liens, security interests or
remedies Agent may at any time pursue, relinquish, subordinate, or modify or to
take any other action with respect thereto and such determination will not in
any way modify or affect any of Agent's or Lenders' rights hereunder.
11.3. Setoff. In addition to any other rights which Agent or any Lender
may have under applicable law, upon the occurrence and during the continuance of
an Event of Default hereunder, Agent and each Lender shall have a right to apply
Borrowers' property held by Agent and such Lender to reduce the Obligations.
11.4. Rights and Remedies not Exclusive. The enumeration of the foregoing
rights and remedies is not intended to be exhaustive and the exercise of any
right or remedy shall not preclude the exercise of any other right or remedies
provided for herein or otherwise provided by law, all of which shall be
cumulative and not alternative.
XII. WAIVERS AND JUDICIAL PROCEEDINGS.
12.1. Waiver of Notice. Each Borrower hereby waives notice of non-payment
of any of the Receivables, demand, presentment, protest and notice thereof with
respect to any and all instruments, notice of acceptance hereof, notice of loans
or advances made, credit extended, Collateral or Guarantor Collateral received
or delivered, or any other action taken in reliance hereon, and all other
demands and notices of any description in connection with the Transactions,
except such as are expressly provided for herein.
12.2. Delay. No delay or omission on Agent's or any Lender's part in
exercising any right, remedy or option shall operate as a waiver of such or any
other right, remedy or option or of any Default or Event of Default.
12.3. Jury Waiver. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES
ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A)
ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (B) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO
OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY HEREBY CONSENTS THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN
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ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 12.3 WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENTS OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
XIII. EFFECTIVE DATE AND TERMINATION.
13.1. Term. This Agreement shall become effective on the date hereof and
shall continue in full force and effect until the fifth (5th) anniversary of the
Closing Date (the "Term") unless sooner terminated as herein provided. Borrowing
Agent, on behalf of Borrowers, may terminate this Agreement (but only in its
entirety) at any time upon sixty (60) days' prior written notice upon payment in
full of the Obligations. In the event the Obligations are prepaid in full prior
to the last day of the Term, whether voluntarily, due to an acceleration hereof,
or otherwise (the date of such prepayment hereinafter referred to as the "Early
Termination Date"), Borrowers shall pay to Agent for the benefit of Lenders an
early termination fee in an amount equal to (a) two million twenty-five thousand
dollars ($2,025,000), if the Early Termination Date occurs on or after the
Closing Date to and including the date immediately preceding the first
anniversary of the Closing Date, (b) one million three hundred fifty thousand
dollars ($1,350,000), if the Early Termination Date occurs on or after the first
anniversary of the Closing Date to and including the date immediately preceding
the second anniversary of the Closing Date, and (c) six hundred seventy-five
thousand dollars ($675,000), if the Early Termination Date occurs on or after
the second anniversary of the Closing Date to and including the date immediately
preceding the third anniversary of the Closing Date; provided, that in the event
the Obligations are voluntarily prepaid in full prior to the last day of the
Term contemporaneously with a transaction involving the sale of all or
substantially all of the assets or stock of Century or Richton (other than to an
affiliate of Richton), the early termination fee referred to above shall be
reduced by one-half (1/2).
13.2. Termination. Subject to Section 15.7 hereof, the termination of the
Agreement shall not affect any Borrower's, Agent's or any Lender's rights, or
any of the Obligations having their inception prior to the effective date of
such termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into, rights or interests created or Obligations
have been fully disposed of, concluded or liquidated. The security interests,
Liens and rights granted to Agent and Lenders hereunder and the financing
statements filed hereunder shall continue in full force and effect,
notwithstanding the termination of this Agreement or the fact that Borrowers'
Account may from time to time be temporarily in a zero or credit position, until
all of the Obligations of Borrower have been paid or performed in full after the
termination of this Agreement or Borrowers have furnished Agent and Lenders with
an indemnification satisfactory to Agent and Lenders with respect thereto.
Accordingly, Borrowers waive any rights which they may have under Section
9-404(1) of the Uniform Commercial Code as in effect in the State of New York to
demand the filing of termination statements with respect to the Collateral, and
Agent shall not be required to send such termination statements to Borrower, or
to file them with any filing office, unless and until this Agreement shall have
been terminated in accordance with its terms and all Obligations paid in full in
immediately available funds. All representations, warranties, covenants, waivers
and agreements contained herein shall survive termination hereof until all
Obligations are paid or performed in full.
XIV. REGARDING AGENT.
14.1. Appointment. Each Lender hereby designates PNC to act as Agent for
such Lender under this Agreement and the Other Documents. Each Lender hereby
irrevocably authorizes Agent to take such
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action on its behalf under the provisions of this Agreement and the Other
Documents and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto
and Agent shall hold all Collateral, Guarantor Collateral, payments of principal
and interest, fees (except the fees set forth in the Fee Letter and in Section
3.5 hereof), charges and collections (without giving effect to any collection
days) received pursuant to this Agreement or any Other Document, for the ratable
benefit of Lenders. Agent may perform any of its duties hereunder by or through
its agents or employees. As to any matters not expressly provided for by this
Agreement (including without limitation, collection of the Notes) Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding; provided, however, that Agent shall not
be required to take any action which exposes Agent to liability or which is
contrary to this Agreement or the Other Documents or applicable law unless Agent
is furnished with an indemnification reasonably satisfactory to Agent with
respect thereto.
14.2. Nature of Duties. Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and the Other Documents.
Neither Agent nor any of its officers, directors, employees or agents shall be
(i) liable for any action taken or omitted by them as such hereunder or under
any Other Document, or in connection herewith or therewith, unless caused by
their gross negligence or willful misconduct, or (ii) responsible in any manner
for any recitals, statements, representations or warranties made by any Borrower
or by Guarantor or any officer thereof contained in this Agreement, or in any of
the Other Documents or in any certificate, report, statement or other document
referred to or provided for in, or received by Agent under or in connection
with, this Agreement or any of the Other Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, or
any of the Other Documents or for any failure of any Borrower or of Guarantor to
perform its obligations hereunder or under any Other Document. Agent shall not
be under any obligation to any Lender to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any of the Other Documents, or to inspect the properties,
books or records of any Borrower or of Guarantor. The duties of Agent as
respects the Advances to Borrowers shall be mechanical and administrative in
nature; Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Lender; and nothing in this Agreement or any
Other Document, expressed or implied, is intended to or shall be so construed as
to impose upon Agent any obligations in respect of this Agreement except as
expressly set forth herein or therein.
14.3. Lack of Reliance on Agent and Resignation. Independently and without
reliance upon Agent or any other Lender, each Lender has made and shall continue
to make (i) its own independent investigation of the financial condition and
affairs of Borrowers and of Guarantor in connection with the making and the
continuance of the Advances hereunder and the taking or not taking of any action
in connection herewith, and (ii) its own appraisal of the creditworthiness of
Borrowers and of Guarantor. Agent shall have no duty or responsibility, either
initially or on a continuing basis, to provide any Lender with any credit or
other information with respect thereto, whether coming into its possession
before making of the Advances or at any time or times thereafter except as shall
be provided by Borrowers or by Guarantor pursuant to the terms hereof. Agent
shall not be responsible to any Lender for any recitals, statements,
information, representations or warranties herein or in any agreement, document,
certificate or a statement delivered in connection with or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of this Agreement or any Other Document, or of the financial
condition of any Borrower or of Guarantor, or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
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or conditions of this Agreement or the Other Documents, or the financial
condition of any Borrower or of Guarantor, or the existence of any Default or
any Event of Default.
Agent may resign on sixty (60) days' written notice to each Lender and
Borrowing Agent and upon such resignation, the Required Lenders will promptly
designate a successor Agent reasonably satisfactory to Borrowing Agent. Any such
successor Agent shall succeed to the rights, powers and duties of Agent, and the
term "Agent" shall mean such successor agent effective upon its appointment, and
the former Agent's rights, powers and duties as Agent shall be terminated,
without any other or further act or deed on the part of such former Agent. After
any Agent's resignation as Agent, the provisions of this Article XIV shall inure
to its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
14.4. Certain Rights of Agent. If Agent shall request instructions from
Lenders with respect to any act or action (including failure to act) in
connection with this Agreement or any Other Document, Agent shall be entitled to
refrain from such act or taking such action unless and until Agent shall have
received instructions from the Required Lenders; and Agent shall not incur
liability to any Person by reason of so refraining. Without limiting the
foregoing, Lenders shall not have any right of action whatsoever against Agent
as a result of its acting or refraining from acting hereunder in accordance with
the instructions of the Required Lenders.
14.5. Reliance. Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, order or other
document or telephone message believed by it to be genuine and correct and to
have been signed, sent or made by the proper person or entity, and, with respect
to all legal matters pertaining to this Agreement and the Other Documents and
its duties hereunder, upon advice of counsel selected by it. Agent may employ
agents and attorneys-in-fact and shall not be liable for the default or
misconduct of any such agents or attorneys-in-fact selected by Agent with
reasonable care.
14.6. Notice of Default. Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder or under
the Other Documents, unless Agent has received notice from a Lender or a
Borrower referring to this Agreement or the Other Documents, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that Agent receives such a notice, Agent shall give
notice thereof to Lenders. Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders; provided, that unless and until Agent shall have received such
directions, Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of Lenders.
14.7. Indemnification. To the extent Agent is not reimbursed and
indemnified by Borrowers, each Lender will reimburse and indemnify Agent in
proportion to its respective portion of the Advances (or, if no Advances are
outstanding, according to its Commitment Percentage), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by or asserted against Agent in performing its
duties hereunder, or in any way relating to or arising out of this Agreement or
any Other Document; provided, that Lenders shall not be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from Agent's gross
negligence or willful misconduct.
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14.8. Agent in its Individual Capacity. With respect to the obligation of
Agent to lend under this Agreement, the Advances made by it shall have the same
rights and powers hereunder as any other Lender and as if it were not performing
the duties as Agent specified herein; and the term "Lender" or any similar term
shall, unless the context clearly otherwise indicates, include Agent in its
individual capacity as a Lender. Agent may engage in business with any Borrower
or Guarantor as if it were not performing the duties specified herein, and may
accept fees and other consideration from any Borrower or Guarantor for services
in connection with this Agreement or otherwise without having to account for the
same to Lenders.
14.9. Delivery of Documents. To the extent Agent receives financial
statements required under Sections 9.7, 9.8, 9.9 and 9.11 hereof, Agent will
promptly furnish such documents and information to Lenders.
XV. MISCELLANEOUS.
15.1. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applied to contracts to be
performed wholly within the State of New York, without giving effect to the
principles of conflicts of law. Any judicial proceeding brought by or against
any Borrower with respect to any of the Obligations, this Agreement or any
related agreement may be brought in the Supreme Court of the State of New York
located in the County of New York or in the United States District Court for the
Southern District of New York and, by execution and delivery of this Agreement,
each Borrower accepts for itself and in connection with its properties,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts, and irrevocably agrees to be bound by any judgment rendered thereby in
connection with this Agreement or any Other Document. Each Borrower hereby
waives personal service of any and all process upon it and consents that all
such service of process may be made by registered mail (return receipt
requested) directed to Borrowing Agent (which each Borrower irrevocably appoints
as such Borrower's agent for the purpose of accepting service) at its address
set forth in Section 15.6 hereof and service so made shall be deemed completed
five (5) days after the same shall have been so deposited in the mails of the
United States of America. Nothing herein shall affect the right to serve process
in any manner permitted by law or shall limit the right of Agent or any Lender
to bring proceedings against any Borrower in the courts of any other
jurisdiction. Each Borrower waives any objection to jurisdiction and venue of
any action instituted hereunder in any court referred to above and shall not
assert any defense based on lack of jurisdiction or venue or based upon forum
non conveniens. Any judicial proceeding by any Borrower against Agent or any
Lender involving, directly or indirectly, any matter or claim in any way arising
out of, related to or connected with this Agreement or any related agreement,
shall be brought only in the Supreme Court of the State of New York located in
the County of New York or in the United States District Court for the Southern
District of New York.
15.2. Entire Understanding.
(a) This Agreement and the Other Documents contain the entire
understanding between Borrowers, Agent and Lenders and supersedes all prior
agreements and understandings, if any, relating to the subject matter hereof.
Any promises, representations, warranties or guarantees not herein contained and
hereinafter made shall have no force and effect unless in writing, signed by
Borrowers', Agent's and each Lender's respective officers. Neither this
Agreement nor any portion or provisions hereof may be changed, modified,
amended, waived, supplemented, discharged, canceled or terminated orally or by
any course of dealing, or in any manner other than by an agreement in writing,
signed by the party to be charged. Each
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Borrower acknowledges that it has been advised by counsel in connection with the
execution of this Agreement and the Other Documents to which such Borrower is a
party and is not relying upon oral representations or statements inconsistent
with the terms and provisions of this Agreement or such Other Documents.
(b) The Required Lenders, Agent with the written consent of the
Required Lenders, and Borrowers may, subject to the provisions of this Section
15.2 (b), from time to time enter into written supplemental agreements to this
Agreement or the Other Documents for the purpose of adding or deleting any
provisions or otherwise changing, varying or waiving in any manner the rights of
Lenders, Agent or any Borrower thereunder or the conditions, provisions or terms
thereof of waiving any Event of Default thereunder, but only to the extent
specified in such written agreements; provided, however, that no such
supplemental agreement shall, without the consent of all Lenders:
(i) increase the Commitment Percentage of any Lender;
(ii) extend the maturity of any Note or the due date for any amount
payable hereunder, or decrease the rate of interest or reduce any fee payable by
Borrowers to Lenders pursuant to this Agreement;
(iii) alter the definition of the term Required Lenders or alter,
amend or modify this Section 15.2(b);
(iv) release any Collateral or Guarantor Collateral during any
calendar year (other than in accordance with the provisions of this Agreement)
having an aggregate value in excess of two hundred fifty thousand dollars
($250,000);
(v) change the rights and duties of Agent;
(vi) permit any Revolving Advance to be made if after giving effect
thereto the total of Advances outstanding hereunder would exceed the Aggregate
Formula Amount for more than thirty (30) consecutive Business Days or exceed one
hundred ten percent (110%) of the Aggregate Formula Amount; or
(vii) increase the Advance Rates above the Advance Rates in effect
on the Closing Date.
Any such supplemental agreement shall apply equally to each Lender and
shall be binding upon Borrowers, Lenders and Agent and all future holders of the
Obligations. In the case of any waiver, Borrowers, Agent and Lenders shall be
restored to their former positions and rights, and any Event of Default waived
shall be deemed to be cured and not continuing, but no waiver of a specific
Event of Default shall extend to any subsequent Event of Default (whether or not
the subsequent Event of Default is the same as the Event of Default which was
waived), or impair any right consequent thereon.
In the event that Agent requests the consent of a Lender pursuant to this
Section 15.2 and such Lender shall not respond or reply to Agent in writing
within ten (10) days of delivery of such request, such Lender shall be deemed to
have consented to matter that was the subject of the request. In the event that
Agent requests the consent of a Lender pursuant to this Section 15.2 and such
consent is denied, then PNC may, at its option, require such Lender to assign
its interest in the Advances to PNC or to another Lender or to any other
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Person designated by Agent (the "Designated Lender"), for a price equal to the
then outstanding principal amount thereof plus accrued and unpaid interest and
fees due such Lender, which interest and fees shall be paid when collected from
Borrowers. In the event PNC elects to require any Lender to assign its interest
to PNC or to the Designated Lender, PNC will so notify such Lender in writing
within forty-five (45) days following such Lender's denial, and such Lender will
assign its interest to PNC or the Designated Lender no later than five (5) days
following receipt of such notice pursuant to a Commitment Transfer Supplement
executed by such Lender, PNC or the Designated Lender, as appropriate, and
Agent.
15.3. Successors and Assigns; Participations; New Lenders.
(a) This Agreement shall be binding upon and inure to the benefit of
Borrowers, Agent, each Lender, all future holders of the Obligations and their
respective successors and assigns, except that no Borrower may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of Agent and each Lender.
(b) Each Borrower acknowledges that in the regular course of
commercial banking business one or more Lenders may at any time and from time to
time sell participating interests in the Advances to other financial
institutions (each such transferee or purchaser of a participating interest, a
"Transferee"). Each Transferee may exercise all rights of payment (including
without limitation rights of set-off) with respect to the portion of such
Advances held by it or other Obligations payable hereunder as fully as if such
Transferee were the direct holder thereof; provided that no Borrower shall be
required to pay to any Transferee more than the amount which it would have been
required to pay to the Lender which granted an interest in its Advances or other
Obligations payable hereunder to such Transferee had such Lender retained such
interest in the Advances hereunder or other Obligations payable hereunder and in
no event shall any Borrower be required to pay any such amount arising from the
same circumstances and with respect to the same Advances or other Obligations
payable hereunder to both such Lender and such Transferee. In addition, each
Transferee shall be entitled to the benefits of Sections 2.6(d), 3.2(e), 3.8,
3.9 and 3.10 hereof with respect to its participation in any Commitment
Percentage, Eurodollar Rate Loan and Letter of Credit. Each Borrower hereby
grants to each Transferee a continuing security interest in any deposits, moneys
or other property actually or constructively held by such Transferee as security
for such Transferee's interest in the Advances. Each Lender agrees to promptly
notify Agent and Borrowing Agent of any such participation; provided, that the
failure to give such notice shall not affect the validity of such participation.
(c) Any Lender may, with the consent of Agent which shall not be
unreasonably withheld or delayed, sell, assign or transfer all or any part of
its rights under this Agreement and the Other Documents to one or more
additional banks or financial institutions and one or more additional banks or
financial institutions may commit to make Advances hereunder (each a "Purchasing
Lender"), in minimum amounts of not less than five million dollars ($5,000,000),
pursuant to a Commitment Transfer Supplement, executed by a Purchasing Lender,
the transferor Lender, and Agent and delivered to Agent for recording; provided,
that any Lender may sell, assign or transfer all or any part of its rights under
this Agreement and the Other Documents to any of its Affiliates without notice
to or consent of Agent, without being subject to the conditions contained in
this Section 15.3(c) and without paying the fee set forth in Section 15.3(d)
hereof. Upon such execution, delivery, acceptance and recording, from and after
the transfer effective date determined pursuant to such Commitment Transfer
Supplement, (i) Purchasing Lender thereunder shall be a party hereto and, to the
extent provided in such Commitment Transfer Supplement, have the rights and
obligations of a Lender thereunder with a Commitment Percentage as set forth
therein, and (ii) the transferor Lender thereunder shall, to the extent provided
in such Commitment Transfer Supplement, be released from its obligations under
this
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Agreement, the Commitment Transfer Supplement creating a novation for that
purpose. Such Commitment Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect the
addition of such Purchasing Lender and the resulting adjustment of the
Commitment Percentages arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Agreement and the Other Documents. Each Borrower hereby consents to the
addition of such Purchasing Lender and the resulting adjustment of the
Commitment Percentages arising from the purchase by such Purchasing Lender of
all or a portion of the rights and obligations of such transferor Lender under
this Agreement and the Other Documents. Each Borrower shall execute and deliver
such further documents and do such further acts and things reasonably necessary
to effectuate the foregoing and all reasonable costs of Borrowers in connection
therewith shall be paid by the Lender transferring its interest to the
Purchasing Lender.
(d) Agent shall maintain at its address a copy of each Commitment
Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of each Lender and the Advances owing to
each Lender from time to time. The entries in the Register shall be conclusive,
in the absence of manifest error, and Borrowers, Agent and Lenders may treat
each Person whose name is recorded in the Register as the owner of the Advance
recorded therein for the purposes of this Agreement. The Register shall be
available for inspection by any Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice. Agent shall receive a fee in
the amount of two thousand five hundred dollars ($2,500) payable by the
applicable Purchasing Lender upon the effective date of each transfer or
assignment to such Purchasing Lender.
(e) Each Borrower authorizes each Lender to disclose to any
Transferee or Purchasing Lender and any prospective Transferee or Purchasing
Lender any and all financial information in such Lender's possession concerning
such Borrower which has been delivered to such Lender by or on behalf of such
Borrower pursuant to this Agreement or in connection with such Lender's credit
evaluation of such Borrower.
15.4. Application of Payments. Agent shall have the continuing and
exclusive right to apply or reverse and re-apply any payment and any and all
proceeds of Collateral and the Guarantor Collateral to any portion of the
Obligations. To the extent that any Borrower makes a payment or Agent or any
Lender receives any payment or proceeds of the Collateral or the Guarantor
Collateral for any Borrower's or for Guarantor's benefit, which are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid to a trustee, debtor in possession, receiver, custodian or any other
party under any bankruptcy law, common law or equitable cause, then, to such
extent, the Obligations or part thereof intended to be satisfied shall be
revived and continue as if such payment or proceeds had not been received by
Agent or such Lender.
15.5. Indemnity.
(a) Borrowers shall indemnify Agent, each Lender and each of their
respective officers, directors, Affiliates, employees and agents (each an
"Indemnitee") from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and disbursements
of any kind or nature whatsoever (including, without limitation, fees and
disbursements of counsel) which may be imposed on, incurred by, or asserted
against any Indemnitee in any litigation, proceeding or investigation instituted
or conducted by any governmental agency or instrumentality or any other Person
with respect to any aspect of, or any transaction contemplated by, or referred
to in, or any matter related to, this Agreement or the Other Documents, whether
or not such Indemnitee is a party thereto, except to the extent that any of the
foregoing arises out of the gross negligence or willful misconduct of the party
being indemnified.
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(b) Each Borrower represents that it has not retained any broker or
finder in connection with the transactions contemplated hereby. Borrowers shall
indemnify Agent and each Lender, and hold them harmless from and against any
claims of any broker or finder arising out of the transactions contemplated
hereby. Each Lender on the Closing Date represents that it has not retained any
broker or finder in connection with the transactions contemplated hereby.
(c) If and to the extent that any indemnification obligations of
Borrowers hereunder (whether under this Section 15.5 or otherwise) are
unenforceable for any reason, each Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of such obligations which is
permissible under applicable law. Any amounts paid by any Person as to which
such Person has the right to reimbursement under any indemnity hereunder
(whether under this Section 15.5 or otherwise) shall constitute Obligations
secured by the Collateral.
15.6. Notice. Any notice or request hereunder may be given to Borrowers,
Borrowing Agent, Agent or any Lender at their respective addresses set forth
below or at such other address as may hereafter be specified in a notice
designated as a notice of change of address under this Section 15.6. Any notice
or request hereunder shall be given by (a) hand delivery, (b) overnight courier,
(c) registered or certified mail, return receipt requested, or (d) telecopy to
the number set out below (or such other number as may hereafter be specified in
a notice designated as a notice of change of address) with electronic
confirmation of its receipt. Any notice or other communication required or
permitted pursuant to this Agreement shall be deemed given (i) when personally
delivered to any officer of the party to whom it is addressed, (ii) on the
earlier of actual receipt thereof or three (3) days following posting thereof by
certified or registered mail, postage prepaid, or (iii) upon actual receipt
thereof when sent by a recognized overnight delivery service or (iv) upon actual
receipt thereof when sent by telecopier to the number set forth below with
electronic confirmation of its receipt, in each case addressed to each party at
its address set forth below or at such other address as has been furnished in
writing by a party to the other by like notice:
(A) If to Agent or PNC: PNC Bank, National Association
Two Tower Center Boulevard
East Brunswick, New Jersey 08816
Attention: Mr. Ryan Peak, V.P.
Telephone: (732) 220-4315
Telecopier: (732) 220-4393
with a copy to: Sills, Cummis, Radin,
Tischman, Epstein & Gross, P.A.
One Riverfront Plaza
Newark, New Jersey 07102-5400
Attention: Frederic M. Tudor, Esq.
Telephone: (973) 643-7000
Telecopier: (973) 643-6500
(B) If to a Lender other than Agent, as specified on the signature pages
hereof.
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(C) If to any Borrower
or Borrowing Agent: Richton International Corporation
767 Fifth Avenue
New York, New York 10153
Attention: Mr. Fred R. Sullivan,
Chief Executive Officer
Telephone: (212) 751-1445
Telecopier: (212) 751-0397
with a copy to: Robinson Brog Leinwand Greene
Genovese & Gluck P.C.
1345 Avenue of the Americas
New York, New York 10105-0143
Attention: Marshall E. Bernstein, Esq.
Telephone: (212) 586-4050
Telecopier: (212) 956-2164
15.7. Survival. The obligations under Sections 2.6(d), 3.2(e), 3.8, 3.9,
3.10, 4.19(g), 14.7, 15.5, 15.9 and 15.17 hereof shall survive termination of
this Agreement and the Other Documents and payment in full of the Obligations.
15.8. Severability. If any part of this Agreement is contrary to,
prohibited by, or deemed invalid under applicable laws or regulations, such
provision shall be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, but the remainder hereof shall not be invalidated thereby
and shall be given effect so far as possible.
15.9. Expenses. All costs and expenses including, without limitation,
reasonable attorneys' fees (including the allocated costs of in-house counsel)
and disbursements incurred by Agent, Agent on behalf of Lenders, and, upon the
occurrence and during the continuance of an Event of Default, Lenders (a) in all
efforts made to enforce payment of any Obligation or effect collection of any
Collateral or Guarantor Collateral, or (b) in connection with the entering into,
modification, amendment, administration and enforcement of this Agreement and
the Other Documents or any consents or waivers hereunder and all related
agreements, documents and instruments, or (c) in instituting, maintaining,
preserving, enforcing and foreclosing on Agent's security interest in or Lien on
any of the Collateral or Guarantor Collateral, whether through judicial
proceedings or otherwise, or (d) in defending or prosecuting any actions or
proceedings arising out of or relating to Agent's or any Lender's transactions
with any Borrower or with Guarantor, shall be paid by Borrowers and may be
charged to Borrowers' Account and shall be part of the Obligations.
15.10. Injunctive Relief. Each Borrower recognizes that, in the event such
Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy at law may prove to be inadequate
relief to Lenders; therefore, Agent, if Agent so requests, shall be entitled to
temporary and permanent injunctive relief in any such case without the necessity
of proving that actual damages are not an adequate remedy.
15.11. Consequential Damages. Neither Agent nor any Lender, nor any agent
or attorney for any of them, shall be liable to any Borrower for consequential
damages arising from any breach of contract, tort or other wrong relating to the
establishment, administration or collection of the Obligations.
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15.12. Captions. The captions at various places in this Agreement are
intended for convenience only and do not constitute and shall not be interpreted
as part of this Agreement.
15.13. Counterparts; Telecopied Signatures. This Agreement may be executed
in any number of and by different parties hereto on separate counterparts, all
of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute one and the same agreement. Any signature
delivered by a party by facsimile transmission shall be deemed to be an original
signature hereto.
15.14. Construction. The parties acknowledge that each party and its
counsel have reviewed this Agreement and that the normal rule of construction to
the effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Agreement or any amendments,
schedules or exhibits thereto. Each covenant herein shall be construed (absent
an express contrary provision herein) of being independent of each other
covenant contained herein, and compliance with any one covenant shall not
(absent such an express contrary provision) be deemed to excuse compliance with
one or more other covenants.
15.15. Confidentiality; Sharing Information.
(a) Agent, each Lender and each Transferee shall hold all non-public
information obtained by Agent, such Lender or such Transferee pursuant to the
requirements of this Agreement in accordance with Agent's, such Lender's and
such Transferee's customary procedures for handling confidential information of
this nature; provided, however, Agent, each Lender and each Transferee may
disclose such confidential information (i) to its examiners, affiliates, outside
auditors, counsel and other professional advisors, (ii) to Agent, any Lender or
to any prospective Transferees and Purchasing Lenders, and (iii) as required or
requested by any Governmental Body or representative thereof or pursuant to
legal process; provided, further, that (1) unless specifically prohibited by
applicable law or court order, Agent, each Lender and each Transferee shall use
its best efforts prior to disclosure thereof, to notify Borrowing Agent of the
applicable request for disclosure of such non-public information (A) by a
Governmental Body or representative thereof (other than any such request in
connection with an examination of the financial condition of a Lender or a
Transferee by such Governmental Body) or (B) pursuant to legal process and (2)
in no event shall Agent, any Lender or any Transferee be obligated to return any
materials furnished by Richton or any of its Subsidiaries other than those
documents and instruments in possession of Agent or any Lender in order to
perfect its Lien on the Collateral or the Guarantor Collateral once the
Obligations have been paid in full and this Agreement has been terminated.
(b) Each Borrower acknowledges that from time to time financial
advisory, investment banking and other services may be offered or provided to a
Borrower or one or more of its Affiliates (in connection with this Agreement or
otherwise) by any Lender or by one or more Affiliates of such Lender and each
Borrower hereby authorizes each Lender to share any information delivered to
such Lender by such Borrower and its Subsidiaries pursuant to this Agreement, or
in connection with the decision of such Lender to enter into this Agreement, to
any such Affiliate of such Lender, it being understood that any such Affiliate
of any Lender receiving such information shall be bound by the provision of
Section 15.15(a) hereof as if it were a Lender hereunder. Such authorization
shall survive the termination of this Agreement and the Other Documents and the
payment in full of the Obligations.
15.16. Publicity. Each Borrower and each Lender hereby authorizes Agent to
make appropriate announcements of the financial arrangement entered into among
Borrower, Agent and Lenders, including,
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without limitation, announcements which are commonly known as tombstones, in
such publications and to such selected parties as Agent shall in its sole and
absolute discretion deem appropriate.
15.17. Borrowing Agent; Obligations Joint and Several.
(a) Each Borrower hereby irrevocably designates, appoints and
authorizes Borrowing Agent to act as Borrowing Agent for such Borrower under
this Agreement and to be its attorney and agent and in such capacity to borrow,
sign and endorse notes, and execute and deliver all instruments, documents,
writings and further assurances now or hereafter required hereunder, on behalf
of such Borrower, and hereby authorizes Agent to pay over or credit all Advance
proceeds hereunder in accordance with the request of Borrowing Agent. Richton
agrees to act as the Borrowing Agent on behalf of Borrowers. The handling of
this credit facility as a co-borrowing facility with a Borrowing Agent in the
manner set forth in this Agreement is solely as an accommodation to Borrowers
and at their request. Neither Agent nor any Lender shall incur liability to
Borrowers as a result thereof. To induce Agent and Lenders to do so and in
consideration thereof, each Borrower hereby indemnifies Agent and each Lender
and holds the Agent and each Lender harmless from and against any and all
liabilities, expenses, losses, damages and claims of damage or injury asserted
against Agent or any Lender by any Person arising from or incurred by reason of
the handling of the financing arrangements of Borrowers as provided herein,
reliance by Agent or any Lender on any request or instruction from Borrowing
Agent or any other action taken by Agent or any Lender with respect to this
Section 15.7, except due to the indemnified party's gross negligence or willful
misconduct.
(b) All Obligations shall be joint and several, and each Borrower
shall make payment upon the maturity of the Obligations by acceleration or
otherwise, and such obligation and liability on the part of each Borrower shall
in no way be affected by any extensions, renewals and forbearance granted by
Agent or any Lender to any Borrower or to Guarantor, failure of Agent or any
Lender to give any Borrower or Guarantor notice of borrowing or any other
notice, any failure of Agent or any Lender to pursue or preserve its rights
against any Borrower or Guarantor, the release by Agent of any Collateral or
Guarantor Collateral now or hereafter acquired from any Borrower or from
Guarantor, and such agreement by each Borrower to pay upon any notice issued
pursuant hereto is unconditional and unaffected by prior recourse by Agent or
any Lender to the other Borrowers or Guarantor or any Collateral or Guarantor
Collateral for such Borrower's Obligations or the lack thereof. Notwithstanding
the foregoing, it is the intention of the parties hereto that this Agreement not
constitute a fraudulent transfer or conveyance for purposes of the United States
Bankruptcy Code or any similar Federal, state, provincial or foreign law for the
relief of debtors, to the extent applicable hereto. To effectuate the foregoing
intention, the parties hereto hereby agree that the Obligations of each Borrower
hereunder and under the Other Documents shall be limited to the maximum amount
as will, after giving effect to such maximum amount and all other contingent and
fixed liabilities of such Borrower that are relevant under such laws, and after
giving effect to any collections from, rights to receive contribution from any
other Borrower or any other Person and payments made by or on behalf of any
other Borrower in respect of the Obligations of such other Borrower hereunder or
under any Other Document, result in the Obligations of such Borrower hereunder
not constituting a fraudulent transfer or conveyance. Each Borrower expressly
waives any and all rights of subrogation, reimbursement, indemnity, exoneration,
contribution of any other claim which such Borrower may now or hereafter have
against the other Borrowers, Guarantor or other Person directly or contingently
liable for the Obligations hereunder, or against or with respect to the other
Borrowers' property (including, without limitation, any property which is
Collateral for the Obligations), arising from the existence or performance of
this Agreement, until termination of this Agreement and repayment in full of the
Obligations.
-69-
<PAGE>
Each of the parties has signed this Agreement as of the day and year first
above written.
ATTEST: RICHTON INTERNATIONAL CORPORATION
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
ATTEST: CENTURY SUPPLY CORP.
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
ATTEST: CBE TECHNOLOGIES, INC.
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By:
-------------------------------------
Name: Peter J. Mardaga
Title: Vice President
Commitment Percentage: 100%
-70-
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On this 17th day of May, 1999, before me personally came , to me known,
who, being by me duly sworn, did depose and say that he is the
__________________ of RICHTON INTERNATIONAL CORPORATION, the corporation
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by order of the board of directors of said
corporation, and that he signed his name thereto by like order.
------------------------------
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On this 17 day of May, 1999, before me personally came , to me known, who,
being by me duly sworn, did depose and say that he is the __________________ of
CENTURY SUPPLY CORP., the corporation described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
order of the board of directors of said corporation, and that he signed his name
thereto by like order.
------------------------------
NOTARY PUBLIC
-71-
<PAGE>
STATE OF NEW YORK )
) ss.
COUNTY OF NEW YORK )
On this 17th day of May, 1999, before me personally came , to me known,
who, being by me duly sworn, did depose and say that he is the
__________________ of CBE TECHNOLOGIES, INC., the corporation described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by order of the board of directors of said corporation,
and that he signed his name thereto by like order.
------------------------------
NOTARY PUBLIC
-72-
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> MAR-31-1999
<CASH> 442
<SECURITIES> 0
<RECEIVABLES> 26,419
<ALLOWANCES> 1,250
<INVENTORY> 26,219
<CURRENT-ASSETS> 53,696
<PP&E> 4,331
<DEPRECIATION> 1,711
<TOTAL-ASSETS> 66,922
<CURRENT-LIABILITIES> 52,023
<BONDS> 4,410
0
0
<COMMON> 322
<OTHER-SE> 10,167
<TOTAL-LIABILITY-AND-EQUITY> 66,922
<SALES> 29,385
<TOTAL-REVENUES> 29,385
<CGS> 21,809
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 9,492
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 406
<INCOME-PRETAX> (2,322)
<INCOME-TAX> (880)
<INCOME-CONTINUING> (1,442)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (1,442)
<EPS-PRIMARY> (0.49)
<EPS-DILUTED> (0.43)
</TABLE>
