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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 10-K
(MARK ONE)
/ / ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
or
/X/ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
COMMISSION FILE NUMBER 0-24234
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FOR THE FISCAL YEAR ENDED JUNE 30, 1999
FOILMARK, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 11-3101034
(State or other (IRS Employer
jurisdiction Identification No.)
of incorporation)
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5 MALCOLN HOYT DRIVE, NEWBURYPORT, MASSACHUSETTS 01950
(Address of principal executive offices)
(978) 462-7300
(Registrant's telephone number, including area code)
SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
None
SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
COMMON STOCK $.01 PAR VALUE
Title of Class
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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 and (2) has been subject to such filing
requirements for the past 90 days. Yes /X/ No / /
/ / Indicate by check mark if disclosure of delinquent filers pursuant to
Item 405 of Regulations S-K is not contained herein, and will not be contained,
to the best of the registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K.
The aggregate market value of the outstanding voting stock held by
non-affiliates of the registrant as of September 15, 1999 was $18,817,589.
The number of shares outstanding of the registrant's common stock at
September 15, 1999--7,899,956
Exhibit Index Located on Page--19
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ITEM 1 BUSINESS
GENERAL
Unless the context otherwise requires, all references to the Company,
Foilmark or FM shall mean Foilmark, Inc., a Delaware Corporation, and its
consolidated subsidiaries. In April 1999, the Board of Directors of Foilmark
approved a change in fiscal year end from December 31 to June 30. References to
fiscal 1999 or fiscal year 1999 refer to the Company's fiscal year ended June
30, 1999. References to fiscal 1997 or fiscal 1998 refer to the Company's fiscal
years ended December 31, 1997 or December 31, 1998, respectively, a twelve-month
period.
Foilmark, Inc., is one the largest manufacturers and distributors of hot
stamp foil and holographic foil and film in the United States. The Company is
also a major manufacturer of laminated foil and direct metallized paper in
Canada. The Company's products are used to enhance the appearance and perceived
value of consumer packaging and products.
"Hot stamping" is the term that describes a decorating or enhancement
process performed by transferring through heat and pressure a series of coatings
from a film carrier to the surface of a product. The Company manufactures the
hot stamping foils by coating polyester film in a multi-step process. The coated
side of the foil is placed against the surface to be stamped. An application
machine then presses a heated die or roller against the opposite side of the
carrier film to transfer and affix the design and, if desired, to add texture to
the design. This process requires a stamping machine, stamping die or roller, a
support and locating device for the item to be marked or decorated and stamping
foil.
Hot stamping foils are designed to meet specific customer requirements and
may consist of a single color product, such as metallized gold used for embossed
lettering, or multi-color patterns and complex holographic (or diffractive)
designs. The foils are applied to a wide variety of products for enhancement or
decorative purposes and product labeling, which increases shelf appeal at
point-of-sale. The Company supplies foil to its customers who then hot stamp it
on to their products such as greeting cards, hardback and paperback book covers,
wine labels, cosmetic and other paper and plastic packaging.
Holographic foils and films produced by the Company are made by embossing a
hologram into technically advanced base films specially designed for this
application. Holograms, which are difficult to duplicate, make holographic foil
useful as a security device for transaction cards, driver's licenses,
collectible items, checks, event tickets, currency, government documents and
other items which are easy to counterfeit. The distinctive appearance of
holograms and holographic patterns also makes this type of foil appealing as a
means to increase the visibility of consumer packaging.
Lamination products include metallic foils and films that are laminated to
paper and paperboard. These products are sold to manufacturers who print over
the metallic surface, giving the product a metallized exterior that improves
shelf appeal. Laminated products can be used in lieu of or in conjunction with
selective hot stamping. Holographic embossed films are also laminated to paper
or board, creating a dynamic effect. The Company also manufactures metallized
papers. These products are used for labels on such items as beverage containers.
These products can also be laminated to board stock.
The Company was originally organized as Kensol-Olsenmark, Inc., in New York
in 1924 and manufactured (i) marking devices and indelible inks for the laundry,
fur and shirt industries and (ii) hot stamping machinery--and later marketed
plastic decorating equipment and supplies. In 1977, Foilmark Manufacturing
Corporation was incorporated as a separate company to manufacture hot stamping
foil. Kensol-Olsenmark, Inc., began making dies and related tooling in June
1991.
In 1992, the Company acquired Franklin Manufacturing Corporation, a foil
stamping machinery manufacturer, based in Norwood, Massachusetts. This
acquisition enabled the Company to produce specialized machines targeted at the
label and credit card industries. In December 1994, the Company's machine
manufacturing operations were consolidated in Norwood, Massachusetts. In June
and
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August 1997, respectively, the Melville, New York, and Norwood, Massachusetts,
properties were sold, and the majority of the proceeds were used to reduce bank
debt. In October 1997, the Company discontinued manufacturing the Kensol and
Franklin hot stamping equipment in order to focus on its hot stamping foil and
holographic film products and its pad printing machinery and supply business
segments. The hot stamping equipment product line, consisting of vertical
stamping presses and the Kensol and Franklin names, was sold in December 1997.
In February 1998, the credit card and chain-operated machinery product line was
sold. The Company ceased manufacturing hot stamping machines at the end of
December 1997, except to fill existing purchase orders received prior to October
15, 1997. The hot stamping machinery product line is presented as discontinued
operations for the year ended December 31, 1997.
In November 1994, the Company purchased its West Coast foil distributor,
West Foils, Inc., for stock and cash. This acquisition allowed the Company to
increase its penetration and market share in this large and important territory.
In August 1995, the Company acquired substantially all of the assets of
Imtran Industries, Inc., a Newburyport, Massachusetts-based manufacturer of pad
printing equipment and related supplies, for a combination of cash and stock.
The acquisition allowed Foilmark to enter into the pad printing field, a
marking/enhancement process in which ink decoration is applied to products and
packaging.
Effective July 1, 1998, the Company effected a corporate reorganization
whereby Imtran Foilmark, Inc., and Foilmark Manufacturing Corporation, Delaware
corporations and wholly owned subsidiaries of Foilmark, merged with and into
Olsenmark, Inc., a Delaware corporation and a wholly owned subsidiary of
Foilmark. The survivor, Olsenmark, Inc., changed its name to Foilmark
Manufacturing Corporation. In addition, West Foils, Inc., a wholly owned
subsidiary of Foilmark, merged with and into Foilmark, effective July 1, 1998.
During the first half of 1998, Foilmark reviewed its competitive position in
the hot stamp foil and holographic media markets. Foilmark believed that it
needed to broaden its product line and add critical mass to be more competitive.
The industry was examined to determine if there was a potential merger partner
that would meet Foilmark's strategic requirements.
HoloPak emerged as the primary candidate for several reasons. First,
HoloPak's hot stamp foil product line in the graphic arts market was
complementary to Foilmark's. Foilmark's strength is in the area of high-volume
gold and silver metallic foils, whereas HoloPak's strengths are metallic colors.
Secondly, HoloPak's holographic product line includes security products and
diffractive hot stamp foils not produced by Foilmark. Thirdly, HoloPak's line of
printed products, such as pattern foils and wood grains, are sold into markets
that Foilmark does not service. Finally, HoloPak, through its Alubec facility,
manufactures film laminates and metallized paper, which can be marketed to
Foilmark's customers. HoloPak's manufacturing capacity could permit Foilmark to
become the low-cost producer for holographic film products, which are typically
laminated to board or paper prior to use. Foilmark believes that lowering costs
for holographic media will drive usage in the very large packaging industry.
The merger of the two Companies also presented opportunity to reduce costs
through the elimination of duplication in a combined organization and other
synergistic savings. On November 17, 1998, the Companies signed a definitive
agreement for Foilmark to acquire HoloPak.
On April 23, 1999 (the "Transaction Date"), HoloPak Technologies, Inc.,
merged into a subsidiary of Foilmark. HoloPak's two core operating subsidiaries
are Transfer Print Foils, a New Jersey-based manufacturer of hot stamp foils and
holographic security products and Alubec Industries, a Montreal-based
manufacturer of film/foil laminates and metallized paper. Since April 23, 1999,
HoloPak has operated as a wholly owned subsidiary of Foilmark. HoloPak
stockholders received a total of 3,715,935 shares of Foilmark common stock plus
$4,753,718 in cash.
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In April 1999, the Board of Directors of Foilmark, Inc., changed the fiscal
year end December 31 to June 30. The change was made in anticipation of the
merger with HoloPak, which had a March 31 fiscal year. The June 30 fiscal year
will facilitate reporting in future periods. The change became effective for the
six months ended June 30, 1999 and is considered the transition period.
Management's discussion and analysis of financial condition and results of
operations compares the six months ended June 30, 1999 and 1998, respectively,
and the year ended December 31, 1998.
PRODUCTS AND PROCESSES
HOT STAMPING FOILS--Sales of hot stamping foils represented $14.0 million,
or 61%, of the Company's net sales in 1999, compared to $22.3 million, or 72%,
of the Company's net sales in 1998 and $11.9 million, or 75%, of net sales for
the six months ended June 30, 1998. Hot stamping foil is used for decorative and
marking purposes on a wide array of products, including packaging, book covers,
wine labels, greeting cards, credit cards, toys and automotive and appliance
components.
The Company's foil products currently include (i) metallized foil (metallic
effect); (ii) pigmented foil (solid colors); (iii) diffraction or "prismatic"
foil (shattering effect); (iv) holographic foil (three-dimensional effect); (v)
printed pattern foils (for the picture frame and graphic arts industry); (vi)
wood-grain foil (for furniture components and automobile interiors); (vii)
extrusion applications (for vertical window coverings); and (viii) specialty
coated films.
Foilmark manufactures hot stamp foils in its Newburyport, Massachusetts, and
East Brunswick, New Jersey, plants. Metallized hot stamping foils, in their
simplest form, are constructed by applying a series of thin coatings to a
polyester film carrier. These coatings consist of a release coat and color coat
(commonly called the topcoat). More advanced, high performance products have
more complex topcoats. The coatings are then vacuum metallized with a thin layer
of aluminum, or chrome, for those products with a metallic effect. The final
coating step is to apply an adhesive coat (also known as a "sizing coat"). An
image is embossed into the coatings prior to the adhesive step to create
diffraction and holographic foils. The construction of the composite and the
number of layers varies slightly, according to the final application. Most
products are converted by either slitting or cutting to customer specifications
as a last step prior to shipment.
HOLOGRAPHIC FOILS, FILMS AND LAMINATION PRODUCTS--The Company is one of the
leading producers of holographic foil and films in the United States. These
products, which are vacuum-coated products embossed with two-dimensional and
three-dimensional images, represent the fastest growing segment of the market.
Holographic foils are used in a variety of decorative applications on packaging,
graphics and plastic products. In addition, holographic foils are used on
products such as transaction cards and licenses and are also used on high-value
product packaging and labels that require anti-counterfeiting protection. The
Company has developed production methods that permit the mass replication of
high-quality holographic images on foil in a secure environment. Holographic
films are laminated to paper or paperboard for value added folding cartons or
packaging applications. The films' ability to be heat-sealed offers other
opportunities in the field of flexible packaging.
A hologram is originated by creating a master image through split beam laser
photography. The master image is provided to the Company by the customer or
produced by an independent holographer. Once the master image is created, the
Company produces shims or embossing cylinders that are used to replicate the
holograhic image. The final step in the process uses the shims or cylinders to
emboss the image into specially formulated hot stamping foil or films, designed
to accept the image. The Company has the ability to manufacture high-resolution
security holograms using highly proprietary computer-driven origination
equipment. The Company also has proprietary technology for the manufacture of
seamless (no shim line) holographic films.
When a hologram is viewed from different angles, features of the depicted
object can be seen that would not be possible in a photograph. Identification of
an authentic hologram when used as a security
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device is convenient and inexpensive and can be done by sight without any
special machinery. Moreover, high-security holograms can also be produced to
carry information that is readable only with the aid of special devices. The
high degree of technological skill and capital investment required to replicate
holograms acts as an obstacle to unauthorized duplication, thereby making
holograms useful as anti-counterfeiting and security devices.
The visual appeal and uniqueness of holograms also make them ideal for many
graphic applications on paper and plastic-based products. The Company has
continued to supply holographic foils for use on products such as greeting
cards, ribbon for gift packaging, folding cartons, flexible packaging,
recognition products (trophies) and paperback books. The Company believes that
there is potential for significant growth in this area as additional holographic
products are developed and advances in the replication of holograms lead to
lower production costs, thus making holographic foil practical for additional
applications.
Due to the synergy between the laminated products manufactured by the
Company's subsidiary, Alubec Industries, and the holographic films, the sales
numbers include these products. Alubec's product line includes both foil and
film laminates. In both cases, the foil or film is laminated to paperboard or
paper. Depending on the end use, the products are then coated or treated to
ensure ink adherence as the customer prints over these surfaces. Alubec is the
only North American laminator to have in-house vacuum metallizing capabilities.
This lowers Alubec's cost while improving lead-time. The infrastructure at
Alubec also allows for the manufacture of direct metallized paper. The Company
is in the process of introducing metallized paperboard to the market.
Significant growth is expected in the area of holographic film laminates as the
Company leverages its position as the only manufacturer of both holographic
films and lamination products.
Holographic foils, films and lamination products represented $5.4 million,
or 23%, of the Company's net sales in 1999, compared to $1.8 million, or 6%, or
the Company's net sales in 1998 and $450,000, or 3%, of net sales for the six
months ended June 30, 1998.
PAD PRINTING MACHINERY AND PRINTING SUPPLY PRODUCTS--Pad printing machines,
and printing supplies constituted $3.8 million, or 16%, of the Company's net
sales in 1999, compared to $6.7 million, or 22%, of the Company's net sales in
1998 and $3.5 million, or 22%, of net sales for the six months ended June 30,
1998.
Foilmark manufactures its line of Imtran pad printing equipment and supplies
in Newburyport, Massachusetts. The Company's line of equipment consists of three
standard models, as well as customized systems designed for specific
applications. The prices for the Company's standard machines range from $7,000
to $24,000, and from $20,000 to $200,000 for customized systems. Standard
presses are used to apply images from a dot to 10" X 10". Customized systems
include machines with automatic feeding devices such as shuttles, turntables and
carousels. They also include multiple-headed and advanced automation machines.
Imtran also manufactures and distributes a full range of printing supplies
for pad printing and hot stamping. These products include printing plates and
pads, inks, hot stamping dies, rollers and tooling. These items can be used on
any pad print and hot stamp machinery. Imtran is vertically integrated from an
in-house art department through all manufacturing steps. These supply items
represent a continuing revenue stream after fulfillment of machinery orders.
SALES, MARKETING AND CUSTOMERS
The Company has 21 full-time outside sales representatives and one domestic
manufacturer's representative (who is compensated on a commission basis), along
with 29 inside sales support personnel. The Company markets its products and
services by way of industry trade shows, advertising, public relations,
telemarketing, direct mail and the Company's Internet web site.
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The Company has a diverse customer base and markets its hot stamp foil,
holographic foil and film, lamination products and metallized paper to customers
with a broad range of consumer products. The Company's products are sold to more
than 3,500 active customers worldwide, ranging from small companies to Fortune
500 companies. No single customer accounted for more than 7% of total net sales
of foil, holographic products, pad print machines or printing supplies in fiscal
1999. Of the largest 15 customers, 13 have been customers for five or more
years. Distributors sell the Company's products worldwide on terms of either
letters of credit or open account. The Company has worked with distributors,
both on an exclusive and nonexclusive basis, respectively, for periods ranging
from 2 to 15 years.
The Company sells its foil through a direct sales force and indirectly
through distributors. No foil customer accounted for more than 4% of total net
foil sales in fiscal 1999. One holographic customer accounted for 15%, and three
customers accounted for 41% of holographic sales, respectively, in fiscal 1999.
Hot stamping foils and holographic products manufactured by the Company are sold
domestically, and under private label, by distributors. Terms of sales for hot
stamping foils and holographic products are typically "Net 30."
The Company sells its pad printing machinery directly or through
manufacturer's representatives. No pad-printing customer accounted for more than
7% of total net sales of machines in 1999. Terms of sales for machines are
typically 30% down, 60% prior to shipment and the balance "Net 30" days.
Backlog does not play a significant role in the sale of foil, although it
has some significance in the sales of holographics and machinery, due to the
longer time required in the manufacturing process of these products.
FOREIGN SALES
The Company's foreign sales are made principally to customers in Canada,
Western and Eastern Europe, South Africa, the Middle East, Mexico, South America
and Central America. During the fiscal year ended December 31, 1997,
approximately $1.9 million of special machinery was shipped to China North
Industries under a contract to supply equipment to manufacture, convert and
apply hot stamping foils and holographic products. The Company will not solicit
this type of business in the future, as it is not within the scope of the
Company's standard product line. The sale to China North Industries accounted
for 6% of the Company's total sales in 1997 and 29% of the Company's foreign
sales.
All foreign sales are payable in US dollars, and, therefore, settlement
amounts do not fluctuate with changes in exchange rates. No single country
accounted for more than 9% of the Company's sales in fiscal 1999.
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TOTAL FOREIGN
YEAR SALES PERCENT OF COMPANY SALES
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1999 (6 months)...................................................... $ 4,362,000 19%
1998................................................................. 4,505,000 15%
1997................................................................. 6,686,000 20%
1996................................................................. 4,092,000 14%
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RESEARCH AND DEVELOPMENT
The Company's research and development program is devoted to the development
of new products, applications and improved processing techniques and quality
control. In addition, the R & D Department frequently works closely with
customers to develop unique products that can be exclusively marketed by that
customer. The department consists of a team of 26 chemists, engineers and
technicians. The Company expenses its research and development costs as
incurred. Such expenses, including personnel costs, amounted to $540,000,
$374,000, and $290,000, respectively, in each of the fiscal years ended December
31, 1997 and 1998 and June 30, 1999.
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The Company owns certain US patents dealing with a range of products and
processes, including hot stamping foil and embossing. While patents for foil are
valued possessions, enforcement is difficult. For this reason, management
believes that its proprietary formulas and manufacturing technology are equally
or more valuable than patents. Accordingly, the Company relies upon trade
secrets and other proprietary information in its development activities.
COMPETITION
The product enhancement industry in which the Company competes includes a
large number of foreign and domestic competitors. The Company estimates that
product sales in the worldwide market in which Foilmark presently competes is
$900 million in annual global sales of foil, $250 million in annual domestic
sales of film/foil laminates and metallized paper and $230 million in annual
global sales of holographic security and media products. In the foil, film and
holographic industry, the Company competes with approximately 20 manufacturers
and believes its sales accounted for 5% of the global market.
In the global hot stamp foil industry, the Company competes with
approximately 20 manufacturers. Competition is based on variety and quality of
products, service and price. Due to its breadth of product range, the Company
competes in both the high value segment of the market, as well as the high
volume lower price segment of the market.
Some of the Company's competitors have greater financial resources, while
other competitors, especially foreign, may have lower cost structures or
exchange rates that may affect the Company's competitive position. However, the
Company believes that its product quality, long-standing customer relationships,
proprietary machinery and processes and continuity of experienced management and
personnel are competitive advantages.
The hot stamp and holographic industries in general have certain
technological and economic barriers to entry. The Company's equipment and
processes for the production of hot stamp foils and holographic foils have been
developed over years of research and development effort and require a blend of
art and chemistry based on years of experience working with foils for a broad
range of applications. Also, the capital equipment that is required to
effectively produce hot stamping and holographic foil is extremely costly. The
manufacturing infrastructure for the production of hot stamping and holographic
foils also requires large capital expenditures for the construction of
additional equipment to comply with federal, state and local environmental laws
and regulations which may deter new entrants from commencing the production of
hot stamping foils.
The market for holographic foils and films is relatively new and has been
developing quickly over the last several years. The Company is one of the
leading producers of holographic foils/films in the United States. The Company
believes that there are currently four other significant domestic producers of
holographic foils/films, as well as foreign producers of these products. The
Company has invested significant time and effort developing processes and
machinery for the production and embossing of holographic foils and films,
which, management believes, gives it certain competitive advantages.
The laminated foil/film and metallized paper markets are highly competitive.
This competition is based on product performance, service and price. There are
four significant lamination competitors and two significant metallized paper
competitors in the United States and Canada. Most of these companies are large
and have greater financial resources than the Company.
Foilmark estimates that the domestic market for pad printing equipment and
printing supplies is more than $100 million. In this market segment, the Company
competes with 10 primary competitors and several smaller companies and believes
that it supplies approximately 5% of the domestic market.
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RAW MATERIALS AND SUPPLIES
The Company is not dependent upon any one supplier for any of its raw
materials. The Company purchases polyester film, the main component of its foil
products, from a variety of different suppliers. All raw materials used in
manufacturing foil and other products manufactured by the Company are readily
available on terms favorable to the Company.
The Company purchases from suppliers on a purchase order basis and,
consequently, has no long-term supply contracts.
SAFETY AND ENVIRONMENTAL MATTERS
The Company's operations are subject to federal, state and local
environmental laws and regulations that impose limitations on the discharge of
pollutants into the air and water and establish standards for treatment, storage
and disposal of solid hazardous wastes. The Company believes that it is in
material compliance with all applicable environmental laws and regulations
relating to its material business operations.
The Company through its subsidiary, HoloPak Technologies, Inc. ("HoloPak")
is currently involved in two environmental cleanup proceedings as a result of
waste delivered to large recyclers. These proceedings arose prior to the
acquisition of HoloPak. One matter involves the clean up of a New Jersey
landfill (the "New Jersey Cleanup"). The New Jersey Cleanup has been divided
into two parts. In the first part, HoloPak's subsidiary, Transfer Print Foils,
Inc. ("TPF") was joined in a federal action with numerous other parties. The
first part was settled at no cost to TPF because the $132,000 portion of the
total settlement that was allocable to TPF predecessor and was paid by such
predecessor's insurance coverage. In the second part of the New Jersey Cleanup,
the United States Environmental Protection Agency (the "EPA") has requested over
300 potentially responsible parties ("PRPs") to offer a proposal for groundwater
remediation. The EPA has estimated the cost of such remediation at $10 million
to $12 million. There can be no assurance that the predecessor's insurance
coverage that was available for the first part of the New Jersey Cleanup will be
available for the second part. Although each PRP is jointly and severally liable
for all such cleanup costs, the Company does not anticipate that the final
outcome of this second part of the New Jersey Cleanup will have a material
adverse effect on the Company.
In the other pending proceeding, the Pennsylvania Department of
Environmental Resources (the "PADER") has notified over 1,000 parties, including
TPF, that they may be liable as PRPs for clean up of a Pennsylvania landfill
that has soil and groundwater contamination (the "Pennsylvania Cleanup"). The
Company believes that any waste that its subsidiary allegedly disposed of at the
landfill would represent
less than 1% of the total waste disposed of at the site by the over 1,000
parties alleged to have disposed of waste at the landfill. In February 1997,
HoloPak entered into a Buyout Agreement with PADER in which HoloPak paid
approximately $39,000 to settle its obligations in this matter. The Company has
made a claim under the terms of the Environmental Indemnification Agreement (as
defined below) for the costs associated with this matter.
The Buyout Agreement with PADER contains a re-opener provision in the event
that the cost of the remedial plan approved by PADER exceeds $30 million. PADER
has not estimated the total cleanup costs of the landfill. As with the New
Jersey Cleanup, the Company does not anticipate the final outcome of the
Pennsylvania Cleanup will have a material adverse effect on the Company, even
though HoloPak and every other PRP in the Pennsylvania Cleanup may be jointly
and severally liable for all cleanup costs.
In addition, HoloPak is involved in the remediation of ground water
contamination at one of its facilities in East Brunswick. The cleanup is being
supervised by the Bureau of Underground Storage Tanks (BUST). BUST has approved
a Natural Remediation Compliance Plan to remediate the groundwater
contamination. Sampling to date has left doubt on the effectiveness of natural
remediation in removing the source, leading to the possibility of requiring a
more active approach (soil excavation and disposal).
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However, due to the impractical nature and cost (estimated to be $360,000), the
Company has requested and received approval for further groundwater sampling to
determine if more active remediation is required. Due to the uncertainty of the
sampling results, no project completion costs can be determined at this time.
Due to the broad scope of existing environmental cleanup laws, it is
possible that the Company may be joined or named as a PRP in other cleanup
proceedings, not only with respect to waste that the Company disposed of, but
also with respect to the waste disposed of by a business acquired by the
Company. There can be no assurance that any such subsequent proceedings would
not have a material adverse effect upon the Company. The Company does not
maintain environmental impairment insurance coverage in respect of such
liability.
For the fiscal year ended June 30, 1999 and HoloPak's fiscal year ended
March 31, 1998 and March 31, 1997, respectively, net expenditures of $19,000,
$57,000 and $138,000, respectively, were made on environmental matters. These
amounts are net of claims of $0, $116,000 and $39,000, respectively, under the
Environmental Indemnification Agreement.
Under an Environmental Indemnification Agreement between HoloPak and certain
stockholders of the Predecessor (the "Environmental Indemnification Agreement"),
HoloPak is entitled to be indemnified for certain environmental liabilities for
claims made relating to conditions existing prior to January 4, 1993. The
maximum indemnity under such Agreement is $950,000, of which $28,000 is
remaining in escrow. As of June 30, 1999, HoloPak has been reimbursed under the
Environmental Indemnification Agreement $1,061,000, including insurance claim
recoveries.
As future environmental laws and regulations may be adopted, or
interpretations of existing laws and regulations may change, new requirements
may be imposed upon the Company regarding its past, present or future activities
which may create retroactive liability with respect to past activities. Failure
to comply with applicable laws and regulations could subject the Company to
monetary damages and injunctive actions that could adversely affect the
Company's financial performance. It is the policy of the Company to comply with
all applicable safety laws and regulations and to provide employees with a
workplace free of recognized safety and health hazards. Every effort has been
and continues to be made to maintain the Company's commitment to the safety and
health of its employees.
PATENTS, TRADEMARKS AND PROPRIETARY INFORMATION
While the Company owns certain patents, trademarks and logos, it relies
heavily upon trade secrets, know-how and other proprietary information to
protect its processes and products. Management believes that patent and
trademark protection are not material to the Company's business. Certain key
employees of the Company are parties to employment agreements that contain
confidentiality provisions with respect to inventions and assign rights to
inventions to the Company during the employment term. The Company also requires
all key employees to enter into confidentiality and non-competition agreements
to protect its confidential information. However, there is no assurance that
those agreements would be enforceable if they were breached or, if enforced,
that they would adequately protect the Company.
EMPLOYEES
At September 1, 1999, the Company employed approximately 399 people,
including 269 in manufacturing, 50 in sales and support, 26 in technical and
development and 54 in administrative and management positions. None of the
Company's employees are represented by a union, and the Company is not aware of
any efforts to unionize any employees of the Company. The Company believes that
its relationship with its employees is satisfactory.
9
<PAGE>
FORWARD-LOOKING INFORMATION
The Company and its subsidiaries, and their representatives, may make
written or oral statements from time to time, including statements contained in
the Company's filings with the Securities and Exchange Commission and in its
reports to shareholders, including this annual report, which constitutes or
contains "forward-looking statements," as that term is defined in the Private
Securities Litigation Reform Act of 1995, or by the SEC in its rules,
regulations and releases.
All Statements, other than statements of historical facts, included in this
annual report, regarding the Company's financial position, operating and
strategic initiatives and addressing industry developments, are forward-looking
statements. In any forward-looking statement where the Company, or its
management, express an expectation or belief as to future results, such
expectation or belief is expressed in good faith and believed to have a
reasonable basis. There can be no assurance that the statement of expectation or
belief will result, be achieved or be accomplished. Factors which could cause
actual results to differ materially from those anticipated, include but are not
limited to, general economic, financial and business conditions; competition in
the product enhancement industry (particularly the hot stamping sector); the
availability and cost of raw materials; the success and costs of the Company's
consolidation and integration efforts; the availability and terms of capital;
the business abilities and judgment of personnel; the costs and effects of legal
proceedings; the impacts of unusual items resulting from ongoing evaluations of
business strategies; and changes in business strategy.
10
<PAGE>
ITEM 2 PROPERTIES
The principal properties of the Company are:
<TABLE>
<CAPTION>
LOCATION SQUARE FOOTAGE STATUS
- ---------------------------------------------------------- --------------- -------------------------------------
<S> <C> <C>
NEWBURYPORT, MASSACHUSETTS
Foil Manufacturing...................................... 52,000 Own(1)
Sales and Service....................................... 2,000 Own(1)
Corporate Office........................................ 2,000 Own(1)
Pad Print Manufacturing
Tool and Die............................................ 20,000 Lease (Expires July 2000)(2)
Sales, Service, Office.................................. 7,500 Lease (Expires July 2000)(2)
Holographic Manufacturing............................... 20,000 Lease (Expires April 2002)(2)
Financial, Accounting and Administrative Offices.......... 5,000 Lease (Expires April 2002)(2)
Warehouse............................................... 5,000 Lease (Expires July 2000)(2)
NEWBURY PARK, CALIFORNIA
Foil Distribution....................................... 8,500 Lease (Expires February 2004)(2)
Pad Print Distribution.................................. 7,000 Lease (Expires April 2002)(2)
EAST BRUNSWICK, NEW JERSEY
Foil Manufacturing...................................... 85,000 Lease (Expires March 2005)
Holographic Manufacturing............................... 28,000 Lease (Expires December 2005)
Sales, Service and Office............................... 2,000 Lease (Expires December 2005)
Warehouse............................................... 34,000 Lease (Expires December 2000)
Financial, Accounting and Administrative Offices.......... 6,000 Lease (Expires December 2000)
CHICAGO, ILLINOIS
Office and Warehouse.................................... 12,000 Lease (Expires April 2002)
MONTREAL, QUEBEC, CANADA
Manufacturing and Warehouse............................. 22,000 Own(1)
Warehouse............................................... 28,000 Lease (Expires April 2000)
Manufacturing........................................... 40,000 Lease (Expires April 2001)
Office.................................................. 4,000 Lease (Expires April 2001)
</TABLE>
- ------------------------
(1) These properties are subject to mortgages.
(2) See Note 14 to the Notes to Consolidated Financial Statements or the
aggregate amounts of the Company's lease commitments.
The foil manufacturing facilities currently operate at 70% of capacity on
three shifts, five days a week. The pad printing and tool and die manufacturing
facility is currently being utilized at approximately 70% of capacity with one
nine-hour shift. The holographic foil manufacturing operation is at
approximately 75% of capacity with three shifts.
ITEM 3 LEGAL PROCEEDINGS
None.
ITEM 4 SUBMISSIONS OF MATTERS TO A VOTE OF SECURITY HOLDERS
In connection with the merger of HoloPak into a subsidiary of the Company on
the Transaction Date, a Special Meeting of the stockholders of the Company was
held on April 21, 1999 for the following purposes: to approve the issuance of up
to 3,715,935 shares of common stock of the Company, par value
11
<PAGE>
$0.01 per share (the "Common Stock") to holders of the common stock of HoloPak;
to amend the Company's Certificate of Incorporation to increase the number of
authorized shares of Common Stock from 10,000,000 to 15,000,000; to amend the
Company's Certificate of Incorporation to remove Article Eight of the
Certificate, which contained provisions requiring the vote of 80% of the
outstanding shares of Common Stock of the Company to approve certain
transactions; and to amend the Company's Certificate of Incorporation to remove
Article Nine of the Certificate, which provided for cumulative voting for
directors. The Special Meeting was adjourned after vote on the first and second
proposals and was reconvened on May 7, 1999 for vote on the third and fourth
proposals.
With respect to the proposal to approve the issuance of shares of Common
Stock to holders of the common stock of HoloPak, there were 2,991,781 votes cast
for this proposal, 196,371 votes cast against this proposal and 2,566 votes
abstaining. With respect to the proposal to amend the Company's Certificate of
Incorporation to increase the number of authorized shares of Common Stock from
10,000,000 to 15,000,000, there were 2,992,097 votes cast for this proposal,
198,171 votes cast against this proposal and 450 votes abstaining. With respect
to the proposal to amend the Company's Certificate of Incorporation to remove
Article Eight of the Certificate, there were 3,350,099 votes cast for this
proposal, 233,637 votes cast against this proposal and 6,791 votes abstaining.
With respect to the proposal to amend the Company's Certificate of Incorporation
to remove Article Nine of the Certificate, there were 3,349,109 votes cast for
this proposal, 235,927 votes cast against this proposal and 5,491 votes
abstaining. There were no broker non-votes with respect to any of the proposals.
PART II
ITEM 5 MARKET FOR REGISTRANTS' COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
The Company's Common Stock is traded on The NASDAQ National Market under the
trading symbol "FLMK." The range of high and low closing sales prices for
Foilmark common stock, as reported on The NASDAQ National Market is set forth
below.
<TABLE>
<CAPTION>
HIGH LOW
QUARTER ENDED SALE SALE
- ------------------------------------------------------------------------------- ------- -------
<S> <C> <C>
September 30, 1997 $ 4 $ 2 7/8
December 31, 1997.............................................................. 4 2 15/16
March 31, 1998................................................................. 4 1/2 2 3/4
June 30, 1998.................................................................. 4 1/8 2 3/4
September 30, 1998............................................................. 3 1 5/8
December 31, 1998.............................................................. 3 1 5/16
March 31, 1999................................................................. 2 7/16 1 3/8
June 30, 1999.................................................................. 2 7/8 1 7/16
September 15, 1999............................................................. 3 3/4 2 5/16
</TABLE>
As of September 15, 1999, there were approximately 136 holders of record and
approximately 823 beneficial owners of the Common Stock.
The Company has never paid dividends on capital stock. The Company intends
to retain earnings to finance future operations and expansion and does not
expect to pay any dividends within the foreseeable future. The Company is
currently restricted from declaring, or paying dividends, under the provisions
of its bank loan agreement. See Note 9 of the Notes to the Consolidated
Financial Statements.
12
<PAGE>
ITEM 6 SELECTED FINANCIAL DATA
FOILMARK, INC. & SUBSIDIARIES
YEARS ENDED DECEMBER 31, 1995-1998 AND JUNE 30, 1999
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
JUNE 30, DEC. 31, DEC. 31, DEC. 31, DEC. 31,
1999(A) 1998(B) 1997(C) 1996 1995(D)
----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
CONTINUING OPERATIONS
Revenue....................................................... 23,150 30,886 33,379 29,692 26,656
Operating Income.............................................. 350 1,181 2,824 707 3,438
Net Income.................................................... 93 357 1,475 189 1,895
Earnings Per Share--Basic and Diluted......................... 0.02 0.09 0.35 0.05 0.47
Weighted Average Shares Outstanding--Basic.................... 5,593 4,173 4,161 4,142 3,999
Financial Condition...........................................
Total Assets.................................................. 47,592 29,821 32,082 40,332 37,952
Total Long-Term Debt.......................................... 13,215 9,106 10,750 12,165 10,732
Working Capital............................................... 18,025 10,392 11,757 12,782 11,766
Stockholders' Equity.......................................... 23,258 15,366 14,978 18,250 19,243
</TABLE>
- ------------------------
(a) In April 1999, the Board of Directors of Foilmark, Inc., changed the fiscal
year end from December 31 to June 30. The change was in anticipation of the
merger with HoloPak, which had a March 31 fiscal year. The change became
effective for the six months ended June 30, 1999 and is considered the
transition period. On April 23, 1999, HoloPak Technologies, Inc., merged
into a subsidiary of Foilmark. HoloPak shareholders received an aggregate of
3,715,935 shares of Foilmark common stock, plus an aggregate of $4,753,718
in cash. The results of operations for the year ended June 30, 1999 include
HoloPak from April 23, 1999.
(b) Effective July 1998, Imtran Foilmark, Inc., and Foilmark Manufacturing
Corporation, wholly owned subsidiaries of Foilmark, merged with and into
Olsenmark, Inc., another and wholly owned subsidiary of the survivor,
Olsenmark, Inc., and changed its name to Foilmark Manufacturing Corporation.
In addition, West Foils, Inc., a wholly owned subsidiary of Foilmark, was
merged with and into Foilmark, effective July 1, 1998.
(c) On October 15, 1997, the Company announced the discontinuation of the
manufacture of hot stamping equipment. Discontinuation of the hot stamping
line resulted in a one-time charge of $3,894,000 and $892,000 loss from
operations, net of tax benefit, equal to a total loss of $4,786,000, net of
tax benefit.
(d) On August 21, 1995, the Company acquired substantially all of the assets and
assumed certain liabilities of Imtran Industries, Inc. The acquired assets
consisted primarily of equipment and other property used in the manufacture
and distribution of pad printing equipment. The Company has transferred all
of the assets of the newly formed wholly owned subsidiary called Imtran
Foilmark, Inc., which will continue operations in the pad printing business.
ITEM 7 MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
RESULTS OF CONTINUING OPERATIONS
FISCAL 1999 COMPARED TO FISCAL 1998
In April 1999, the Board of Directors of Foilmark, Inc., changed the fiscal
year end from December 31 to June 30. The change was in anticipation of the
merger with HoloPak, which had a March 31 fiscal year.
13
<PAGE>
The change became effective for the six months ended June 30, 1999 and is
considered the transition period. Management's discussion and analysis of
financial condition and results of operations compares the six months ended June
30, 1999 and 1998, respectively, and the year ended December 31, 1998.
On April 23, 1999, HoloPak Technologies, Inc., merged into a subsidiary of
Foilmark. HoloPak shareholders received 1.11 shares of Foilmark common stock,
par value $0.01 per share, plus $1.42 in cash for each share of HoloPak common
stock. Foilmark issued a total of 3,715,935 shares and $4,753,718 in cash. The
results of operations for the year ended June 30, 1999 include HoloPak from
April 23, 1999.
Revenues for the fiscal year ended June 30, 1999, a six-month period, were
$23.1 million, compared to $30.9 million for the twelve months ended December
31, 1998. For comparison purposes, revenues for the six months ended June 30,
1998 were $15.8 million. The 46% increase in revenues, or $7.3 million, between
June 30,1999 and 1998 was primarily the result of the addition of HoloPak as of
April 23, which accounted for $6.5 million, or 89%, of the revenue increase. The
balance of the increase, $.8 million, was from both foil and machinery
operations.
The gross profit margin remained relatively the same at 29.7% and 30.1% for
the six months ended June 30, 1999 and June 30, 1998, respectively. For the
twelve months ended December 31, 1998, the gross profit margin was 29.3%. The
primary reason for the slight decline in gross profit percentage between June
30, 1999 and 1998 was due to the HoloPak group that had an average gross profit
of only 22.1%, while the Foilmark foil group and Imtran had gross profit margin
of 27.7% and 45.1%, respectively. Without the HoloPak group, gross profit would
have been substantially improved at 31.6% for the fiscal year ended June 30,
1999. The higher gross profit margin is directly related to lower raw material
pricing, stabilization in customer pricing, replacement of lower margin export
sales with higher margin direct sales and improved manufacturing efficiencies
through longer production runs. The increase in the Imtran machinery group gross
profit margin was due to a management change in January 1999, which resulted in
the Company lowering manufacturing costs, which helped to increase sales volume.
Selling, general and administrative expenses were $5.7 million for the
fiscal year ended June 30, 1999, an increase of $1.8 million from the six months
ended June 30, 1998. For the year ended December 31,1998, expenses were $7.9
million. $1.2 million of the increase at June 30, 1999, compared to June 30,
1998, is the result of the acquisition. The balance of the increase is due to
providing an allowance for doubtful accounts of receivables associated with
exiting the gift wrap product line, higher sales commissions, as a result of the
increase in direct sales replacing the lower margin export sales, and an
increase in legal fees, due to settlement of three previously pending lawsuits.
Merger integration costs of $826,228 are the result of the acquisition of
HoloPak Technologies Inc., on April 23, 1999. Included in these costs are
severance and benefits paid to former employees, expenses in connection with
office and warehouse closings and the write-off of some computer-related
expenses.
Income from operations was $350,258 for the six months ended June 30, 1999,
compared to $819,923 for the six months ended June 30, 1998 and $1,181,478 for
the year ended December 31,1998. Income from operations for the 1999 six months
was adversely impacted by the merger integration costs of $826,228. Without
these special charges, income from operations would have been $1,176,486, a 42%
increase over the comparable 1998 period and equal to income from operations for
the twelve months ended December 31, 1998. The increase in income from
operations without the merger integration costs was the result of higher sales
amounting to $7.3 million, of which $6.5 million were sales of the HoloPak
group.
Interest expense for the six months ended June 30, 1999 was $343,550, or
1.5% of sales, compared to $379,633, or 2.4% of sales, for the six months ended
June 30, 1998. For the fiscal year ended December 31, 1998, interest expense was
$726,265, or 2.4% of sales. The decline in interest expense was the result of
the lower prevailing interest rates in 1999, compared to 1998 and the reduction
of bank debt prior to the merger compared to June 30, 1998.
14
<PAGE>
Other income of $221,774 was primarily the result of insurance proceeds in
connection with damage to a coating machine.
Provision for income taxes totaled $134,579 for the six months ended June
30, 1999, compared to $167,310 for the six months ended June 30,1998. For the
year ended December 31, 1998, the income tax provision was $121,834. The high
effective tax rate for 1999 is not indicative for future periods. Succeeding
periods should have an effective tax rate in the 38% range.
Net income and earnings per share were $93,903, or $0.02 per share, for the
six months ended June 30, 1999, compared to $272,980, or $0.07 per share, for
the six months ended June 30, 1998. For the fiscal year ended December 31, 1998,
net income was $356,742, or $0.09 per share. The decline in net income for the
six months of 1999, compared to 1998, was directly related to the merger
integration costs of $512,261 (net of tax). Eliminating these costs, net income
and earnings per share for the six months ended June 30,1999 would have been
$606,164, or $0.11 per share.
FISCAL 1998 COMPARED TO FISCAL 1997
Net sales for the year ended December 31, 1998 declined to $30.9 million,
from $33.4 million in fiscal 1997. The decrease in revenues of $2.5 million, or
7.5%, was due primarily to a non-recurring sale of specialized equipment
aggregating $1.9 million in 1997. Total foil sales, including holographic, in
1998 decreased $3.2 million from 1997 due primarily to the reduction in export
sales of general hot stamping foils (as a result of Asian manufacturers
utilizing their excess capacity) and a decline in sales of the FHI holographic
division as a result of a shift in ordering patterns from the first half of the
year to the second half, which was not replaced by additional business.
However, sales of pad print machinery and supplies increased by 8.0% to $6.7
million, up from $6.2 million in fiscal 1997. The increase in sales was
attributable in large part to the reorganization of the sales force instituted
at the end of 1997, which resulted in the Company employing dedicated direct
salesmen selling Foilmark products exclusively.
Gross profit in 1998 declined 5.8% to $9.0 million from $9.6 million in
1997. The reduction in gross profit was directly related to the $2.5 million
decline in net revenues. Gross profit margin increased slightly in 1998 to
29.3%, up from 28.8% in 1997. The improvement in gross margin resulted primarily
from core foil products constituting a greater percentage of sales as compared
to 1997, which included a non-recurring sale of specialized equipment at a
significantly lower gross profit. Additionally, gross profit margins in hot
stamping foils improved in the second half of 1998 over 1997 due to the cost
reduction program instituted in June 1998.
The FHI holographic division operated at virtually no gross profit due to
the low sales volume in 1998 and expenses associated with the start up of new
embossing machines and the development and testing of new products that had not
as yet been marketed. Gross profit from pad print machinery and supplies were
virtually the same in 1998 as in 1997, despite a sales increase of $500,000.
Gross profit as a percentage of sales declined to 35.8% from 38.4% in 1997
primarily as a result of various manufacturing problems related to pad printing
machinery orders, which delayed shipment and increased the manufacturing costs.
Selling, general and administrative expenses increased by $1.09 million, or
16.1%, in 1998 over fiscal 1997. Of the increase, $150,000 was due to a
marketing campaign initiated by the Company in 1998 to promote product awareness
and recognition. In addition, changes were made in the marketing and sales
organization to improve coverage of the various product lines. These changes
increased selling expenses, commissions and customer service salaries by
$550,000 in 1998 over 1997.
Operating income declined to $1.18 million for the year ended December 31,
1998, compared to $2.82 million for the year ended December 31, 1997. The
decrease in operating income was attributable to the loss in gross profit as a
result of the $2.5 million decline in net sales and the increase of $1.09
million in selling, general and administrative expenses compared to 1997.
15
<PAGE>
Interest expense for the year ended December 31, 1998 was $726,265, compared
to $403,201 for the comparable 1997 period. The increase in interest expense was
due to the increased financing requirements of continuing operations to fund
operations and capital expenditures.
Income tax expense totaled $121,834 for the twelve months ended December 31,
1998, compared to $983,519 for the year ended December 31, 1997. The effective
tax rates were 26% and 40% for the 1998 and 1997 years. The decrease in the
effective tax rate is due to a reduction in state income taxes and a refund of
approximately $60,000 from a prior year.
Net income and earnings per share from continuing operations were $356,742,
or $0.09 per share, for the fiscal year ended December 31, 1998. Net income and
earnings per share from continuing operations for the year ended December 31,
1997 was $1,475,279, or $0.35 per share. All earnings per share data are basic
and diluted. For the fiscal year ended December 31, 1997, the Company incurred a
net loss of $0.80 per share after giving effect to a loss from discontinued
operations of $4,786,476, or $1.15 per share.
Net income and earnings per share for the 1998 year were adversely affected
by a general softness in the standard hot stamping foil product sales that
existed for most of the year, especially in the foreign sales area, and a
decline in sales volume for the FHI holographic division for the first six
months of the year.
Additionally, total revenues declined in 1998, compared to 1997, as a result
of the $1.9 million non-recurring sale of specialized equipment in 1997.
LIQUIDITY AND CAPITAL RESOURCES
On April 23, 1999, the completion date of the merger, Foilmark used the
balance of its revolving line of credit of $4 million to pay to former HoloPak
shareholders the cash portion of the merger consideration, approximately
$4,750,000. The balance of the funds required to complete the merger transaction
was used from the working capital of the combined entities. As a result of the
Company's positive cash flow since the merger, the outstanding bank indebtedness
has subsequently been reduced by $1,320,000 at August 31, 1999.
The Company entered into a new loan agreement with its principal bank on
August 6, 1999 consisting of a $10 million line of credit, a $5 million term
loan and a $4 million equipment line of credit, subject to covenant compliance.
At June 30, 1999, the Company was in compliance with all covenants under the
existing and new loan agreements. Cash generated from operations and financing
activities was used to fund the HoloPak acquisition amounting to $4,953,936 and
invest in plant, property and equipment amounting to $567,153. The Company
expects that cash from operations and the new credit facility will be sufficient
to meet its operating needs for the foreseeable future.
FORWARD-LOOKING INFORMATION
The Company and its subsidiaries, and their representatives, may make
written or oral statements from time to time, including statements contained in
the Company's filings with the Securities and Exchange Commission, and in its
reports to shareholders, including this annual report, which constitutes or
contains forward-looking statements, as that term is defined in the Private
Securities Litigation Reform Act of 1995, or by the SEC in its rules,
regulations and releases.
All statements, other than statements of historical facts, included in this
annual report, regarding the Company's financial position, operating and
strategic initiatives and addressing industry developments, are forward-looking
statements. In any forward-looking statement where the Company, or its
management, expresses an expectation or belief as to future results, such
expectation or belief is expressed in good faith and believed to have a
reasonable basis. But there can be no assurance that the statement of
expectation or belief will result, be achieved, or be accomplished. Factors
which could cause actual results to differ materially from those anticipated
include, but are not limited to, general economic, financial and business
conditions; competition in the product enhancement industry (particularly the
hot stamping sector); the
16
<PAGE>
availability and cost of raw materials; the success and costs of the Company's
consolidation and integration efforts; the availability and terms of capital;
the business abilities and judgment of personnel; the costs and effects of legal
proceedings; the impacts of unusual items resulting from ongoing evaluations of
business strategies; and changes in business strategy.
OTHER MATTERS
Year 2000--Management believes that substantially all of its computer
systems, including those of HoloPak, are, or will be, Year 2000 compliant. The
Company has performed an assessment of its Year 2000 readiness and has
established an implementation plan to address Year 2000 issues. The Company's
assessment included financial, operational and information systems. The majority
of the Company's manufacturing equipment does not include software or have
embedded microprocessors, and of those that do, all have been determined to be
Year 2000 compliant.
As a result of the assessment phase, the Hewlett-Packard UNIX platform on
which the Company operates its software was upgraded in order to be Y2K
compliant. The new server, at a cost of $100,000, was installed in the second
quarter of 1999 and is operational. As a result of the recent acquisition of
HoloPak, the Company has decided to implement a new software application, which
is Y2K compliant. The cost of the software is $264,000. It is to be installed
and tested in the third quarter of calendar year 1999. The Company currently
does not believe that any future costs necessary to ensure the Company's Y2K
readiness will have a material effect on its business, results of operations or
financial condition.
In the event that the Company's hardware is not replaced or modified in
time, the most likely worst-case scenario would affect the computer
manufacturing system. If the operating system could not correctly handle 2000
and beyond, then any database function that gets its date from "today" will be
inaccurate. This would still pose only minor problems, since all billing,
shipping, invoicing and reporting is done with a manual date entry and allows
for the selection of date ranges which can be correctly entered.
None of Foilmark's or HoloPak's products are date-sensitive. Hot stamping
foils and supplies have no computerized equipment embedded in them, and
pad-printing machines have no date-sensitive embedded microprocessors. The
Company's new network hardware and software is fully compliant and not date-
sensitive.
Foilmark has sent out Y2K questionnaires to suppliers, customers and
critical service providers. Evaluations of Foilmark's and HoloPak's critical
suppliers was completed on June 30, 1999. Although Foilmark cannot control
external suppliers' and customers' ability to be Y2K compliant, it can certainly
express its concerns for not being compliant. The questionnaire assesses whether
the suppliers and customers are compliant and whether and to what extent they
will be complaint prior to January 1, 2000. If respondents indicated
non-compliance, Foilmark intends to assess the consequences and include any
steps it deems necessary in its contingency plan, which has been completed.
Y2K compliance has been a senior management priority for some time. The
Company believes that it has state-of-the-art technology, which will not require
as comprehensive a program as compared to older systems. Nevertheless, the
Company cannot reasonably predict the effect on its operations if customers,
vendors and service providers are not Y2K compliant. Although senior management
does not think this will be the case, the Company's business and results of
operations could be adversely affected in the first quarter of calendar 2000
results if its customers, vendors or service providers are not Y2K compliant.
ITEM 7A QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
Not applicable.
17
<PAGE>
ITEM 8 FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Attached hereto and filed as part of this report are the financial
statements and supplementary data listed in the list of Financial Statements and
Schedules under Item 14 hereof.
ITEM 9 CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
None.
ITEM 10 DIRECTORS AND EXECUTIVE OFFICERS
The information called for by Item 10 is incorporated by reference from the
1999 Proxy Statement, which is to be filed with the Securities and Exchange
Commission, pursuant to Regulation 14A, within 120 days of the end of the fiscal
year covered by this report.
ITEM 11 EXECUTIVE COMPENSATION
The information called for by Item 11 is incorporated by reference from the
1999 Proxy Statement, which is to be filed with the Securities and Exchange
Commission, pursuant to Regulation 14A, within 120 days of the end of the fiscal
year covered by this report.
ITEM 12 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The information called for by Item 12 is incorporated by reference from the
1999 Proxy Statement, which is to be filed with the Securities and Exchange
Commission, pursuant to Regulation 14A, within 120 days of the end of the fiscal
year covered by this report.
ITEM 13 CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The information called for by Item 13 is incorporated by reference from the
1999 Proxy Statement, which is to be filed with the Securities and Exchange
Commission, pursuant to Regulation 14A, within 120 days of the end of the fiscal
year covered by this report.
PART IV
ITEM 14 EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) Financial Statements, Financial Statement Schedules and Exhibits:
(1) Financial Statements and Supplementary Data--See Form 10-K, Item 8
18
<PAGE>
(2) Financial Statement and Schedules:
<TABLE>
<CAPTION>
<S> <C>
Independent Auditors' Report............................................................................... F-1
Consolidated Balance Sheets--June 30, 1999 and December 31, 1998........................................... F-2
Consolidated Statements of Operations--Six Months Ended June 30, 1999 and Years Ended December 31, 1998 and
1997..................................................................................................... F-3
Consolidated Statements of Stockholders' Equity--Six Months Ended June 30, 1999 and Years Ended December
31, 1998 and 1997........................................................................................ F-4
Consolidated Statements of Cash Flows--Six Months Ended June 30, 1999 and Years Ended December 31, 1998 and
1997..................................................................................................... F-5
Notes to Consolidated Financial Statements................................................................. F-6
Schedule II--Valuation and Qualifying Accounts............................................................. S-1
</TABLE>
Other schedules are omitted because of the absence of conditions under which
they are required or because the required information is given in the financial
statements of notes thereto.
(3) Index of Exhibits:
The following is a list of exhibit files as part of this Annual Report on
Form 10-K. For exhibits incorporated by reference, the location of the exhibit
in the previous filing is indicated in parenthesis.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
2.1 Agreement and Plan of Merger dated November 17, 1998 is incorporated herein by reference to the
Company's Current Report on Form 8-K filed with the Commission on November 25, 1988.
3.1 Restated Certificate of Incorporation of the Company dated October 14, 1993 is incorporated herein by
reference to the Company's Registration Statement on Form S-1 filed with the Commission on October
25, 1993.
3.2 Restated Bylaws of the Company are incorporated herein by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997 and filed with the Commission on March 27,
1998.
3.3 Specimen Stock Certificate of the Company is incorporated herein by reference to the Company's
Current Report on Form 8-K filed with the Commission on May 24, 1994.
3.4 Restated Certificate of Incorporation of the Company is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the
Commission.
3.5 Restated Bylaws of the Company dated May 5, 1995 are incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996 and filed with the
Commission.
3.6 Second Amended and Restated Certificate of Incorporation dated November 20, 1998 is incorporated
herein by reference to the registration statement on Form S-4 filed with the Commission on March
22, 1999.
3.7 Bylaws of Foilmark, Inc., amended as of April 23, 1999 are incorporated herein by reference to the
Company's current report on Form 8-K filed with the Commission on May 5, 1999.
</TABLE>
19
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.1 Form of Employment Agreement of the Company is incorporated herein by reference to the Company's
Registration Statement on Form S-1 filed with the Commission on October 25, 1993.
10.2 1993 Stock Option Plan is incorporated herein by reference to Amendment No. 2 to the Company's
Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
10.4 Technical Collaboration Agreement between the Company and Arrow Coated Products Ltd. dated December
18, 1992 is incorporated herein by reference to the Company's Registration Statement on Form S-1
filed with the Commission on October 25, 1993.
10.5 Agreement for the Purchase of Patents between the Company and Leonard Mintz and Franklin
Manufacturing Corporation dated March 12, 1992 is incorporated herein by reference to the Company's
Registration Statement on Form S-1 filed with the Commission on October 25, 1993.
10.6 Waiver Agreement between the Company and Leonard Mintz is incorporated herein by reference to
Amendment No. 1 to the Company's Registration Statement on Form S-1 filed with the Commission on
December 3, 1993.
10.7 Form of Promissory Note and Schedule of Notes is incorporated herein by reference to Amendment No. 2
to the Company's Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
10.8 Form of Shareholder Note and Schedule of Notes is incorporated herein by reference to Amendment No. 2
to the Company's Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
10.9 China Sales and Distribution Agreement between the Company and X.D. Trading and Consulting Company
dated October 25, 1993 is incorporated herein by reference to the Amendment No. 3 to the Company's
Registration Statement on Form S-1 filed with the Commission on June 17, 1994.
10.10 Sales and Licensing Agreement between the Company and Embossing Technology Limited dated November 10,
1994 is incorporated herein by reference to the Company's Current Report on Form 8-K filed with the
Commission on November 30, 1994.
10.11 Industrial Revenue Bond Loan Agreement dated June 28, 1995 is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the
Commission.
10.12 1995 Employee Stock Purchase Plan is incorporated herein by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the Commission.
10.13 1995 Employee Stock Option Plan is incorporated herein by reference to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1995 and filed with the Commission.
10.14 Asset Purchase Agreement between Imtran Industries, Inc. et al, and the Company dated August 3, 1995
is incorporated herein by reference to the Company's Current Report on Form 8-K filed with the
Commission on September 1, 1995.
10.15 Amended and Restated Employee Stock Purchase Plan dated January 31, 1996 is incorporated herein by
reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995
and filed with the Commission on March 30, 1996.
</TABLE>
20
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.16 Amended and Restated Employee Stock Option Plan dated January 31, 1996 is incorporated herein by
reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995
and filed with the Commission on March 30, 1996.
10.17 Waiver and Amendment to Loan Agreement between the Company and Fleet Bank dated March 20, 1997 is
incorporated herein by reference to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 and filed with the Commission on April 14, 1997.
10.18 Consulting Agreement between the Company and Edward Sullivan dated January 1, 1999 is incorporated
herein by reference to the Company's Registration Statement on Form S-4 filed with the Commission
on March 22, 1999.
10.19 Lease Agreement between the Company and Edward G. Molin dated April 21, 1997 is incorporated herein
by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and
filed with the Commission on August 12, 1997.
10.20 Lease Agreement between the Company and Parker Street Realty Trust dated July 1, 1997 is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1997 and filed with the Commission August 12, 1997.
10.21 Lease Agreement between the Company and Faircourt Realty Co. dated April 1, 1997 is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1997 and filed with the Commission on August 12, 1997.
10.22 1997 Non-Employee Director Stock Plan dated April 11, 1997 is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and filed with the
Commission on August 12, 1997.
10.23 Shareholder Agreement between the Company and certain shareholders of HoloPak Technologies, Inc.,
dated November 17, 1998 is incorporated herein by reference to the Company's Current Report on Form
8-K filed with the Commission on November 25, 1998.
10.24 Shareholder Agreement between certain substantial shareholders of the Company and HoloPak
Technologies, Inc., dated November 17, 1998 is incorporated herein by reference to the Company's
Current Report on Form 8-K filed with the Commission on November 25, 1998.
10.25 Non-Competition Agreement between the Company and Leonard Mintz dated December 23, 1998 is
incorporated herein by reference to the Company's Registration Statement on Form S-4 filed with the
Commission on March 22, 1999.
10.26 Waiver to Loan Agreement between the Company and Fleet Bank dated February 18, 1999 is incorporated
herein by reference to the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998 and filed with the Commission on March 29, 1999.
10.27 Employment Agreement dated March 26, 1998 between Douglas Parker and the Company is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1999 and filed with the Commission on May 14, 1999.
10.28 Lease Agreement between the Company and Anchor Associates dated May 14, 1998, commencing March 1,
1999 is incorporated herein by reference to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999 and filed with the Commission on May 14, 1999.
</TABLE>
21
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.29 Voting Agreement between Foilmark and certain stockholders of Foilmark dated April 23, 1999 on Form
8-K filed with the Commission on May 5, 1999.
10.30 Indemnification Agreement between Foilmark and Thomas A. Schwarz dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.31 Indemnification Agreement between Foilmark and Frank J. Olsen, Jr., dated April 23, 1999 is
incorporated herein by reference to the Company's current report on Form 8-K filed with the
Commission on May 5, 1999.
10.32 Indemnification Agreement between Foilmark and Philip Leibel dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.33 Indemnification Agreement between Foilmark and Michael Foster dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.34 Indemnification Agreement between Foilmark and Michael Bertuch dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.35 Indemnification Agreement between Foilmark and Edward Sullivan dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.36 Indemnification Agreement between Foilmark and Glenn Regan dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.37 Indemnification Agreement between Foilmark and Douglas Parker dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.38 Indemnification Agreement between Foilmark and Carol J. Robie dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.39 Indemnification Agreement between Foilmark and Wilhelm Kutsch dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.40 Indemnification Agreement between Foilmark and Brian Kelly dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.41 Indemnification Agreement between Foilmark and Harvey Share dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.42 Indemnification Agreement between Foilmark and James Rooney dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.43 Indemnification Agreement between Foilmark and Joseph T. Webb dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.44 Indemnification Agreement between Foilmark and Arthur Karmel dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.45 Indemnification Agreement between Foilmark and Robert Simon dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.46 Indemnification Agreement between Foilmark and Michael Mathews dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.47 Employment Agreement between Foilmark and Frank J. Olsen, Jr., dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.48 Employment Agreement between Foilmark and Arthur Karmel dated April 23, 1999 is incorporated herein
by reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.49 Employment Agreement between Foilmark and Joseph T. Webb dated April 23, 1999 is incorporated herein
by reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.50 Employment Agreement between Foilmark and James Rooney dated April 23, 1999 is incorporated herein by
reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.51 Registration Rights Agreement among Foilmark, Bradford Venture Partners, Overseas Private Investor
Partners and certain other stockholders of Foilmark dated April 23, 1999 is incorporated herein by
reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.52 Amended and Restated Credit Agreement dated August 6, 1999 between Fleet National Bank and the
Company, and exhibits thereto.
10.53 Employment Agreement dated July 1, 1999 between Carol J. Robie and the Company.
10.54 Employment Agreement dated July 1, 1999 between Wilhelm Kutsch and the Company.
10.55 Employment Agreement dated July 1, 1999 between Philip Leibel and the Company.
10.56 First Amendment to the Foilmark, Inc. Amended and Restated 1995 Stock Incentive Compensation Plan
dated August 19, 1999.
10.57 First Amendment to the Foilmark, Inc. Non-Employee Directors' Stock Plan dated August 19, 1999.
*10.58 Lease dated April 23, 1999 between Owen Wagener & Co. and the Company.
*10.59 Third Extension and Amendment to Lease dated as of April 30, 1999 between Highview Properties-One,
LLC and Transfer Print Foils.
27 Financial Data Schedule
</TABLE>
* To be filed by Amendment
23
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(g) of the Securities
Exchange Act of 1934, the Registrant has duly caused this document to be signed
on its behalf by the undersigned, thereunto duly authorized.
<TABLE>
<S> <C> <C>
FOILMARK, INC.
By: /s/ FRANK J. OLSEN, JR.
-----------------------------------------
Frank J. Olsen, Jr.
PRESIDENT
</TABLE>
Date: September 28, 1999
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registration Statement has been signed by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ ROBERT J. SIMON
- ------------------------------ Chairman of the Board September 28, 1999
Robert J. Simon
/s/ FRANK J. OLSEN
- ------------------------------ President September 28, 1999
Frank J. Olsen Chief Executive Officer
/s/ PHILIP LEIBEL
- ------------------------------ Vice President--Finance September 28, 1999
Philip Leibel Chief Financial Officer
/s/ EDWARD SULLIVAN
- ------------------------------ Vice President--West Coast September 28, 1999
Edward Sullivan Operations & Director
/s/ MICHAEL J. BERTUCH
- ------------------------------ Director September 28, 1999
Michael J. Bertuch
/s/ MICHAEL FOSTER
- ------------------------------ Director September 28, 1999
Michael Foster
/s/ THOMAS SCHWARZ
- ------------------------------ Director September 28, 1999
Thomas Schwarz
</TABLE>
24
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ JAMES ROONEY
- ------------------------------ Director September 28, 1999
James Rooney
/s/ MICHAEL MATHEWS
- ------------------------------ Director September 28, 1999
Michael Mathews
/s/ BRIAN KELLY
- ------------------------------ Director September 28, 1999
Brian Kelly
/s/ HARVEY S. SHARE
- ------------------------------ Director September 28, 1999
Harvey S. Share
</TABLE>
25
<PAGE>
INDEPENDENT AUDITORS' REPORT
Board of Directors and Stockholders
Foilmark, Inc. and Subsidiaries:
We have audited the accompanying consolidated balance sheets of Foilmark,
Inc. and subsidiaries as of June 30, 1999 and December 31, 1998 and the related
consolidated statements of operations, stockholders' equity and cash flows for
the six months ended June 30, 1999 and the years ended December 31, 1998 and
1997. In connection with our audits of the consolidated financial statements, we
also have audited the financial statement schedule as listed in item 14(a)(2) of
this report. These consolidated financial statements and financial statement
schedule are the responsibility of the Company's management. Our responsibility
is to express an opinion on these consolidated financial statements and
financial statement schedule based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the consolidated financial position of
Foilmark, Inc. and subsidiaries at June 30, 1999 and December 31, 1998 and the
results of their operations and their cash flows for the six months ended June
30, 1999 and the years ended December 31, 1998 and 1997, in conformity with
generally accepted accounting principles. Also, in our opinion, the related
consolidated financial statement schedule, when considered in relation to the
basic consolidated financial statement schedule taken as a whole, presents
fairly, in all material respects, the information set forth.
/s/ KPMG LLP
Melville, New York
August 27, 1999
F-1
<PAGE>
FOILMARK, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
JUNE 30, 1999 AND DECEMBER 31, 1998
<TABLE>
<CAPTION>
1999 1998
------------ ------------
<S> <C> <C>
ASSETS
Current assets:
Cash................................................................................ $ 1,326,231 $ 237,561
Accounts receivable - trade (less allowance for doubtful accounts of $744,000 in
1999 and $146,000 in 1998)........................................................ 10,747,909 4,896,086
Inventories......................................................................... 13,039,186 8,134,490
Other current assets................................................................ 989,242 748,610
Deferred acquisition costs.......................................................... -- 261,482
Income tax receivable............................................................... -- 50,872
Deferred income taxes............................................................... 1,957,661 718,602
------------ ------------
Total current assets.............................................................. 28,060,229 15,047,703
Property, plant and equipment, net.................................................... 14,164,745 9,088,889
Bond and mortgage financing costs (net of accumulated amortization of $184,000 and
$157,000 in 1999 and 1998, respectively)............................................ 335,381 364,226
Intangible assets, net................................................................ 4,133,206 4,262,331
Restricted cash....................................................................... 33,333 233,333
Other assets.......................................................................... 223,368 78,432
Notes receivable...................................................................... 641,591 745,958
------------ ------------
$ 47,591,853 $ 29,820,872
------------ ------------
------------ ------------
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current installments of notes payable - stockholders................................ $ 124,024 $ 119,827
Current installments of other long-term debt........................................ 414,831 428,792
Accounts payable.................................................................... 6,266,153 2,432,045
Accrued expenses.................................................................... 1,094,806 1,507,514
Income tax payable.................................................................. 230,720 --
Merger integration costs and related liabilities.................................... 1,839,505 --
Customer deposits................................................................... 64,949 167,817
------------ ------------
Total current liabilities......................................................... 10,034,988 4,655,995
Long-term debt:
Notes payable to stockholders, net of current installments.......................... 471,280 534,605
Other long-term debt, net of current installments................................... 12,743,848 8,571,066
------------ ------------
13,215,128 9,105,671
Deferred income taxes................................................................. 1,083,385 693,560
Commitments and contingencies (Notes 14 and 17)
Stockholders' equity:
Preferred stock ($.01 par value; 500,000 shares authorized; 0 shares issued and
outstanding in 1999 and 1998)..................................................... -- --
Common stock ($.01 par value; 15,000,000 shares authorized; 7,903,715 and 4,179,601
shares issued and outstanding in June 1999 and December 1998)..................... 79,037 41,796
Additional paid-in capital.......................................................... 21,208,036 13,434,445
Retained earnings................................................................... 1,983,308 1,889,405
Accumulated other comprehensive income.............................................. (12,029) --
------------ ------------
Total stockholders' equity........................................................ 23,258,352 15,365,646
------------ ------------
$ 47,591,853 $ 29,820,872
------------ ------------
------------ ------------
</TABLE>
See accompanying notes to consolidated financial statements.
F-2
<PAGE>
FOILMARK, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1999 AND 1998 AND
YEARS ENDED DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE 30, YEAR ENDED DECEMBER 31,
---------------------------- ----------------------------
1999 1998 1998 1997
------------- ------------- ------------- -------------
(UNAUDITED)
<S> <C> <C> <C> <C>
Net sales........................................... $ 23,149,842 $ 15,832,507 $ 30,886,135 $ 33,379,482
Cost of sales....................................... 16,272,482 11,072,032 21,839,367 23,779,459
------------- ------------- ------------- -------------
Gross profit...................................... 6,877,360 4,760,475 9,046,768 9,600,023
Selling, general and administrative expenses........ 5,700,874 3,940,552 7,865,290 6,776,146
Merger integration costs............................ 826,228 -- -- --
------------- ------------- ------------- -------------
Income from operations.............................. 350,258 819,923 1,181,478 2,823,877
Other income (expense):
Interest expense - net............................ (343,550) (379,633) (726,265) (403,201)
Other income...................................... 221,774 -- 23,363 38,122
------------- ------------- ------------- -------------
Income from continuing operations before income
taxes......................................... 228,482 440,290 478,576 2,458,798
Income tax expense.................................. 134,579 167,310 121,834 983,519
------------- ------------- ------------- -------------
Income from continuing operations................... 93,903 272,980 356,742 1,475,279
Discontinued operations:
Loss from operations, net of income tax benefit... -- -- -- (892,076)
Loss on disposition, net of income tax benefit.... -- -- -- (3,894,400)
------------- ------------- ------------- -------------
-- -- -- (4,786,476)
------------- ------------- ------------- -------------
Net income (loss)................................... $ 93,903 $ 272,980 $ 356,742 $ (3,311,197)
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
Net income (loss) per share
From continuing operations - basic and diluted.... $ 0.02 $ 0.07 $ 0.09 $ 0.35
From discontinued operations - basic and
diluted......................................... -- -- -- (1.15)
------------- ------------- ------------- -------------
Net income (loss) per share - basic and diluted..... $ 0.02 $ 0.07 $ 0.09 $ (0.80)
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
Weighted average shares outstanding
Basic............................................. 5,592,930 4,169,761 4,173,139 4,161,463
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
Diluted........................................... 5,747,609 4,169,761 4,173,139 4,161,463
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE>
FOILMARK, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
SIX MONTHS ENDED JUNE 30, 1999 AND
YEARS ENDED DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
ACCUMULATED
ADDITIONAL OTHER
COMMON PAID-IN RETAINED COMPREHENSIVE
STOCK CAPITAL EARNINGS INCOME TOTAL
--------- ------------- ------------ -------------- -------------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1996.............. $ 41,517 $ 13,364,404 $ 4,843,860 $ -- $ 18,249,781
Shares issued under stock grants........ -- 4,136 -- -- 4,136
Shares issued under benefit plans....... 156 35,617 -- -- 35,773
Net loss................................ -- -- (3,311,197) -- (3,311,197)
--------- ------------- ------------ -------------- -------------
Balance at December 31, 1997.............. 41,673 13,404,157 1,532,663 -- 14,978,493
Shares issued under benefit plans....... 123 30,288 -- -- 30,411
Net income.............................. -- -- 356,742 -- 356,742
--------- ------------- ------------ -------------- -------------
Balance at December 31, 1998.............. 41,796 13,434,445 1,889,405 -- 15,365,646
Shares issued under benefit plans....... 82 13,922 -- -- 14,004
Shares issued for acquisition........... 37,159 7,759,669 -- -- 7,796,828
Comprehensive income:
Net income............................ -- -- 93,903 -- 93,903
Other comprehensive income............ -- -- -- (12,029) (12,029)
-------------
Total comprehensive income.......... 81,874
--------- ------------- ------------ -------------- -------------
Balance at June 30, 1999.................. $ 79,037 $ 21,208,036 $ 1,983,308 $ (12,029) $ 23,258,352
--------- ------------- ------------ -------------- -------------
--------- ------------- ------------ -------------- -------------
</TABLE>
See accompanying notes to financial statements.
F-4
<PAGE>
FOILMARK, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
SIX MONTHS ENDED JUNE 30, 1999 AND
YEARS ENDED DECEMBER 31, 1998 AND 1997
<TABLE>
<CAPTION>
1999 1998 1997
----------- ----------- -----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income from continuing operations.................................. $ 93,903 $ 356,742 $ 1,475,279
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation......................................................... 1,093,105 1,373,948 1,285,841
Amortization......................................................... 159,815 317,216 314,763
Provision for doubtful accounts...................................... 615,343 119,000 85,000
Deferred taxes....................................................... (178,708) 311,320 89,117
Change in operating assets and liabilities, net of effects of
acquisitions:
Increase in accounts receivable.................................... (767,237) (207,381) (28,034)
Decrease (increase) in inventories................................. 977,950 (249,789) 1,616,981
Decrease (increase) in income taxes receivable..................... 715,946 1,276,549 (859,150)
Decrease (increase) in bond and mortgage financing costs and other
assets........................................................... 358,709 (593,029) 78,317
Decrease (increase) in deferred acquisition costs.................. -- (261,482) --
(Decrease) increase in customer deposits........................... (102,868) (39,494) (243,140)
(Decrease) increase in accounts payable and accrued expenses....... (1,008,799) 562,915 (1,639,592)
Increase in income tax payable..................................... 230,720 -- --
Increase in merger integration costs............................... 826,228 -- --
----------- ----------- -----------
Net cash provided by operating activities................................ 3,014,107 2,966,515 2,175,382
----------- ----------- -----------
Net cash used in discontinued operations................................. -- (339,728) (531,905)
----------- ----------- -----------
Cash flows from investing activities:
Capital expenditures................................................... (557,153) (1,272,052) (1,305,609)
Acquisition of HoloPak, net of cash received........................... (4,692,454) -- --
Proceeds from sale of facilities....................................... -- -- 2,536,557
Decrease (increase) in cash-restricted................................. 200,000 (66,666) (100,000)
----------- ----------- -----------
Net cash used in investing activities.................................. (5,049,607) (1,338,718) 1,130,948
----------- ----------- -----------
Cash flows from financing activities:
Payments of notes payable to stockholders.............................. (59,128) (112,921) (131,814)
Proceeds of other long-term debt....................................... 3,802,500 -- 1,512,445
Payments of other long-term debt....................................... (621,177) (1,597,168) (3,699,051)
Proceeds from shares issued under benefit plans........................ 14,004 30,411 35,773
Issuance of common stock to employees under stock grants............... -- -- 4,136
----------- ----------- -----------
Net cash (used for) provided by financing activities................... 3,136,199 (1,679,678) (2,278,511)
----------- ----------- -----------
Effect of exchange rate changes on cash.................................. (12,029) -- --
----------- ----------- -----------
Net (decrease) increase in cash.......................................... 1,088,670 (391,609) 495,914
Cash--beginning of period................................................ 237,561 629,170 133,256
----------- ----------- -----------
Cash--end of period...................................................... $ 1,326,231 $ 237,561 $ 629,170
----------- ----------- -----------
----------- ----------- -----------
Supplemental disclosure of cash flow information
Cash paid during the year for:
Interest............................................................... $ 363,686 $ 731,370 $ 944,188
Income Taxes........................................................... $ 105,000 $ 59,000 $ 408,000
Acquisition of HoloPak:
Issuance of stock related to acquisition of HoloPak.................. $ 7,796,828 $ -- $ --
----------- ----------- -----------
Liabilities incurred or assumed...................................... $ 7,275,275 $ -- $ --
----------- ----------- -----------
</TABLE>
See accompanying notes to financial statements.
F-5
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
JUNE 30, 1999 AND DECEMBER 31, 1998
(1) THE COMPANY
Foilmark, Inc. (the "Company" or "Foilmark") develops, manufactures and
distributes hot stamping foils, holographic films, laminated foil and direct
metallized paper used by the graphic arts, plastics and packaging industries, to
decorate or enhance products and their packaging. It also produces image
transfer equipment, pad printing machinery, screen printing systems and printing
supplies. Foilmark's products are used on such items as cosmetic packaging, book
covers, wine labels, greeting cards and many other consumer goods.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(A) BASIS OF PRESENTATION
The consolidated financial statements include the accounts of the company
and its subsidiaries. All significant intercompany transactions, balances and
profits have been eliminated in consolidation.
(B) FISCAL YEAR
On April 23, 1999, the Company changed its fiscal year end from December 31
to June 30. The consolidated financial information with respect to the six-month
period ended June 30, 1998 is unaudited. In the opinion of management, such
information contains all adjustments, consisting only of normal recurring
adjustments, necessary for a fair presentation of the results of such period.
(C) INVENTORIES
Inventories are stated at the lower of cost or market. Cost is determined
using the first-in, first-out method.
(D) PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment are stated at cost. Plant and equipment under
capital leases are stated at the present value of minimum lease payments.
Depreciation is computed as follows:
<TABLE>
<CAPTION>
ESTIMATED
METHODS USEFUL LIFE
-------------- -------------
<S> <C> <C>
Building and improvements...................................... Straight-line 15-40 years
Machinery, furniture and fixtures.............................. Straight-line 3-10 years
Automobiles.................................................... Straight-line 3 years
</TABLE>
(E) NOTES RECEIVABLE
Notes receivable are recorded at cost, less any required allowance for
impaired notes receivable. Management, considering current information and
events regarding the borrowers' ability to repay their obligations, considers a
note to be impaired when it is probable that the Company will be unable to
collect all amounts due, according to the contractual terms of the note
agreement.
(F) BOND AND MORTGAGE FINANCING COSTS
Bond and mortgage financing costs are amortized over the life of the related
obligations.
F-6
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
(G) REVENUE RECOGNITION
Revenue is recognized when products are shipped to the customer. A provision
is made for estimated product returns, claims and allowances.
(H) INCOME TAXES
Income taxes are accounted for under the asset and liability method.
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases and operating loss and tax credit carryforwards. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are expected to be
recovered or settled. The effect on deferred tax assets and liabilities of a
change in tax rates is recognized in income in the period that includes the
enactment date.
(I) RESEARCH AND DEVELOPMENT
The Company incurs costs in the research and development of new products and
applications. Such costs are expensed as incurred and amounted to $290,000 for
the six months ended June 30, 1999 and $540,000 and $374,000 for the years ended
December 31, 1998 and 1997, respectively, and were included as a component of
cost of sales.
(J) USE OF ESTIMATES
Management of the Company has made a number of estimates and assumptions
relating to the reporting of assets and liabilities and the disclosure of
contingent assets and liabilities to prepare these financial statements in
conformity with generally accepted accounting principles. Actual results could
differ from those estimates.
(K) IMPAIRMENT OF LONG-LIVED ASSETS AND LONG-LIVED ASSETS TO BE DISPOSED OF
The Company accounts for long-lived assets in accordance with the provisions
of SFAS No. 121, Accounting for the Impairment of Long-Lived Assets and for
Long-Lived Assets to Be Disposed Of. This Statement requires that long-lived
assets and certain identifiable intangibles be reviewed for impairment whenever
events or changes in circumstances indicate that the carrying amount of an asset
may not be recoverable. Recoverability of assets to be held and used is measured
by a comparison of the carrying amount of an asset to future net cash flows
expected to be generated by the asset. If such assets are considered to be
impaired, the impairment to be recognized is measured by the amount by which the
carrying amount of the assets exceed the fair value of the assets. Assets to be
disposed of are reported at the lower of the carrying amount or fair value less
costs to sell.
(L) STOCK OPTION PLAN
The Company applies the intrinsic value-based method of accounting
prescribed by Accounting Principles Board ("APB") Opinion No. 25, Accounting for
Stock Issued to Employees, and related interpretations, in accounting for its
fixed plan stock options. As such, compensation expense would be
F-7
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES (CONTINUED)
recorded on the date of grant only if the current market price of the underlying
stock exceeded the exercise price.
(M) TRANSLATION OF FOREIGN CURRENCIES
For the foreign operations in Canada, the functional currency is the local
currency. Assets and liabilities of these operations are translated at the
exchange rate in effect at each year-end. Income statement accounts are
translated at the average rate of exchange prevailing during the year.
Translation adjustments arising from the use of differing exchange rates from
the period to period are included as a component of comprehensive income. Gains
and losses from foreign currency transactions are included in net income for the
period.
(N) EARNINGS PER SHARE
Basic earnings per share is computed by dividing net earnings by the
weighted average number of shares outstanding for the year. Diluted earnings per
share is similar except that the weighted average number of shares outstanding
is increased by shares issuable upon exercise of stock options and warrants for
which market price exceeds exercise price, less shares which could have been
purchased by the Company with the related proceeds unless the effect is
antidilutive.
A reconciliation of the weighted average number of shares outstanding used
in the computation of the basic and diluted earnings per share for the six
months ended June 30, 1999 and for the years ended December 31, 1998 and 1997 is
as follows:
<TABLE>
<CAPTION>
1999 1998 1997
---------- ---------- ----------
<S> <C> <C> <C>
Weighted average shares (basic)........................ 5,592,930 4,173,139 4,161,463
Effect of dilutive stock options....................... 154,679 -- --
---------- ---------- ----------
Weighted average shares (diluted)...................... 5,747,609 4,173,139 4,161,463
---------- ---------- ----------
---------- ---------- ----------
</TABLE>
(O) COMPREHENSIVE INCOME
The Company adopted SFAS No. 130, "Reporting Comprehensive Income". SFAS No.
130 established standards for reporting comprehensive income in financial
statements. Comprehensive income consists of net income and foreign currency
translation adjustments. The statement requires only additional disclosure in
the consolidated financial statements; it does not affect the Company's
financial position or results of operations.
(P) RECLASSIFICATIONS
Certain amounts have been reclassified to conform to current year
presentation.
F-8
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(3) ACQUISITION OF HOLOPAK AND MERGER INTEGRATION COSTS
On April 23, 1999, the Company acquired all of the outstanding shares of
HoloPak, Inc. for $15,077,000, including acquisition costs, comprised of
$7,280,000 in cash and 3,716,000 shares of Foilmark common stock. HoloPak
manufactures and distributes hot-stamp foils in the United States, and
manufactures laminated foil and direct metallized paper in Canada. The
acquisition was accounted for using the purchase method, and accordingly, the
net assets acquired have been recorded at their fair market value and the
results of their operations included from the date of acquisition. Since the
estimated fair values of the net assets acquired exceeded total acquisition
cost, the allocation of the purchase price resulted in a prorata write-down of
non-monetary non-current assets (property, plant and equipment) of approximately
$3.9 million. The estimated fair values of net assets are based on independent
appraisals and management estimates.
Merger integration costs of $1,048,000 were included as part of the
acquisition. These costs related to the integration of certain aspects of
HoloPak's operations into Foilmark and were comprised of severance, personnel
costs and a provision for leases. As a result of the acquisition, the Company
reorganized certain aspects of the Foilmark's operations and recorded a merger
integration charge of $826,000, which is included in the statement of
operations, for the six months ended June 30, 1999. These expenses were
primarily comprised of a lease on a facility which will be closed and severance
and other personnel costs. As of June 30, 1999, accrued merger integration costs
totaled $1,840,000 which principally related to severance and personnel costs
which are expected to be paid out in the next year and costs associated with
lease terminations which is expected to be paid out during the term of the
underlying agreements.
On a pro forma basis, reflecting this transaction as if it had taken place
at the beginning of each period and after giving effect to adjustments recording
the acquisition, unaudited net revenues, net income (loss) and basic and diluted
income (loss) per share for the six months ended June 30, 1999 would have been
$33,278,000, $(33,000), and $(0.01), respectively, and for the year ended
December 31, 1998 would have been $64,470,000, $621,000 and $0.08, respectively.
These pro forma results are not indicative of either future performance or
actual results, which would have occurred, had the acquisition taken place at
the beginning of the respective periods.
(4) DISCONTINUED OPERATIONS
In October 1997, the Company's Board of Directors adopted a plan to
discontinue the manufacture of hot stamping equipment. Accordingly, the
operating results of the hot stamping division, including provisions for
disposal of the hot stamping line of $3,894,400, net of tax benefit, were
segregated from continuing operations and reported as a separate line item on
the statement of operations. The total loss from discontinued operations, net of
tax benefit, including the provision for disposition, was $4,786,476, or $1.15
per share, for the year ended December 31, 1997. The Company has restated its
prior years' financial statements to present the operating results of the hot
stamping line as a discontinued operation. The assets and liabilities of such
operations, at December 31, 1998, have been reflected as current or non-current
assets and liabilities of discontinued operations, based substantially on the
original classification of such assets and liabilities.
The Company recorded notes receivable related to the sale of certain assets
of the hot stamping division. The notes receivable are included in long term
assets in the accompanying balance sheet.
F-9
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(4) DISCONTINUED OPERATIONS (CONTINUED)
Operating results from discontinued operations are as follows:
<TABLE>
<CAPTION>
YEAR ENDED
DECEMBER 31,
1997
-------------
<S> <C>
Net sales...................................................................... $ 6,395,424
Costs and expenses:
Cost of sales.................................................................. 5,611,009
Selling, general and administrative expenses................................... 1,746,681
-------------
7,357,690
Operating loss................................................................. (962,266)
Interest and other expenses.................................................... (524,527)
-------------
Loss before income tax benefit................................................. (1,486,793)
Income tax benefit............................................................. 594,717
-------------
Loss from operations........................................................... (892,076)
-------------
Loss on disposition, net of income tax benefit of $2,881,905................... (3,894,400)
-------------
Net loss from discontinued operations.......................................... $ (4,786,476)
-------------
-------------
</TABLE>
(5) INVENTORIES
Inventories at June 30, 1999 and December 31, 1998 consists of the
following:
<TABLE>
<CAPTION>
1999 1998
------------- ------------
<S> <C> <C>
Raw materials.................................................... $ 4,073,544 $ 1,893,978
Work-in-progress................................................. 2,347,004 2,000,185
Finished goods................................................... 6,618,638 4,240,327
------------- ------------
$ 13,039,186 $ 8,134,490
------------- ------------
------------- ------------
</TABLE>
Polyester, the primary raw material in foil manufacturing, is subject to
fluctuations in price depending on industry supply and demand.
F-10
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(6) PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment at June 30, 1999 and December 31, 1998
consists of the following:
<TABLE>
<CAPTION>
1999 1998
------------- -------------
<S> <C> <C>
Land........................................................... $ 224,081 $ 78,673
Building Improvements.......................................... 5,419,008 3,871,695
Machinery, furniture and fixtures.............................. 24,641,736 14,161,771
Automobiles.................................................... 197,412 120,325
------------- -------------
30,482,237 18,232,464
Less accumulated depreciation.................................. 16,317,492 9,143,575
------------- -------------
$ 14,164,745 $ 9,088,889
------------- -------------
------------- -------------
</TABLE>
(7) INTANGIBLE ASSETS
Intangible assets at June 30, 1999 and December 31, 1998 consists of the
following:
<TABLE>
<CAPTION>
AMORTIZATION
1999 1998 PERIOD
------------ ------------ -------------
<S> <C> <C> <C>
Excess of cost over fair value of assets
acquired........................................ $ 4,914,940 $ 4,914,940 20 Years
Patents........................................... 251,846 251,846 10-17 Years
------------ ------------
5,166,786 5,166,786
Less: accumulated amortization.................... 1,033,580 904,455
------------ ------------
$ 4,133,206 $ 4,262,331
------------ ------------
------------ ------------
</TABLE>
The Company assesses the recoverability of the excess of cost over fair
value of assets acquired quarterly based upon the projected undiscounted future
cash flows of the acquired entity with any diminution in value recorded when
identified.
Amortization expense of $129,125, $258,250 and $258,250 relating to
intangible assets was charged to operations in the six months ended June 30,
1999 and the years ended December 31, 1998 and 1997, respectively.
F-11
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(8) NOTES PAYABLE--STOCKHOLDERS
Notes payable to stockholders at June 30, 1999 and December 31, 1998 consist
of the following:
<TABLE>
<CAPTION>
1999 1998
---------- ----------
<S> <C> <C>
Notes due to stockholders, payable in semi-annual payments of $19,911, which include
interest at 6% per annum. Payments began May 1, 1993 and continue through November 1,
2005, subordinated through the due date................................................. $ 408,463 $ 435,332
Notes payable to stockholders with interest at 6% and balance due in equal quarterly
installments through 2003, subordinated to bank notes and/or industrial revenue bonds... 116,332 130,403
Promissory notes to a stockholder, subordinated except for monthly installments through
the due date to industrial development revenue bonds, bearing a stated interest rate of
6% due in quarterly installments of $10,357 including interest through 2001............. 70,509 88,697
---------- ----------
Total notes payable stockholders.......................................................... 595,304 654,432
Less current installments................................................................. 124,024 119,827
---------- ----------
Notes payable-stockholders, excluding current installments................................ $ 471,280 $ 534,605
---------- ----------
---------- ----------
</TABLE>
Interest amounting to $19,285, $43,903 and $52,048 in the six months ended
June 30, 1999 and the years ended December 31, 1998 and 1997, respectively, was
paid to the Company's stockholders or other related parties.
F-12
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(9) OTHER LONG-TERM DEBT
Other long-term debt at June 30, 1999 and December 31, 1998 and consists of
the following:
<TABLE>
<CAPTION>
1999 1998
------------- ------------
<S> <C> <C>
Borrowings under revolving credit loan financing agreement, see
(a)............................................................ $ 10,080,000 $ 5,500,000
Borrowings under The Massachusetts Industrial Financing
Agreement, see (b)............................................. 2,900,000 3,300,000
Mortgage loans payable, interest at 7.75%, see (c)............... 148,587 151,315
Capital lease obligation payable in quarterly installments of
$21,379, including interest at 6%, through March 1999.......... -- 14,041
Note payable, interest at 9.95%, due in monthly installments of
$594, plus interest, through August, 2001...................... 14,199 16,637
Capital lease obligation payable in monthly installments of $464,
including interest at 9.40%, through October, 2001............. 15,893 17,865
------------- ------------
Total other long-term debt....................................... 13,158,679 8,999,858
Less current installments........................................ 414,831 428,792
------------- ------------
Other long-term debt, excluding current installments............. $ 12,743,848 $ 8,571,066
------------- ------------
------------- ------------
</TABLE>
- ------------------------
(a) In 1995, the Company entered into an unsecured, revolving credit
agreement which permitted the Company to borrow up to $6,000,000 at an interest
rate that equals the reserve adjusted LIBOR rate (5.21% and 5.28% at June 30,
1999 and December 31, 1998) plus 2%. In 1997, the unsecured revolving credit
agreement was amended to permit the Company to borrow up to $10,000,000.
The Company must pay a quarterly commitment fee of 1/4 of 1% per annum on
the average daily amount of the available revolving credit commitment. At
December 31, 1998 the Company had an outstanding total of $5,500,000 under the
revolving credit agreement.
On August 6, 1999, the Company amended and restated the credit agreement in
an amount not to exceed $19,000,000, including a line of credit up to
$10,000,000, an equipment line of credit up to $4,000,000 and a term loan of
$5,000,000. The proceeds of the line of credit and term loan are intended to
support working capital requirements. The equipment loan is intended for the
purchase of equipment. Borrowings under the credit agreement bear interest at
either the bank's prime rate or LIBOR plus a margin of 1.25% to 2.00% depending
on the Company's ratio of indebtedness to earnings before interest, taxes,
depreciation and amortization. Under the terms of the credit agreement the
Company is required to maintain certain financial ratios and other financial
conditions.
(b) In 1995, the Company entered into a financing agreement with the
Company's primary bank and the Commonwealth of Massachusetts (MIFA Industrial
Development Revenue Bonds) that permitted the Company to borrow up to $4,400,000
at the bank's fluctuating seven day interest rate (5.21% and 5.28% at
F-13
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(9) OTHER LONG-TERM DEBT (CONTINUED)
June 30, 1999 and December 31, 1998). The Company must pay a monthly commitment
fee of 1/12th of one percent (1%) per annum on the average daily stated amount
of the letter of credit. The bonds are subject to mandatory redemption through
sinking fund installment payments prior to maturity on each June 1 as follows:
$400,000 for years 1999-2005, and $100,000 for years 2006-2010. At June 30, 1999
and December 31, 1998, the sinking fund balance of $33,000 and $233,333 was
included in restricted cash and was not available for operations.
(c) In 1996, the Company borrowed $180,250 under two mortgage loan
agreements. The mortgages are payable monthly with interest at 7.75%. At
December 31, 1998, a building with a net book value of $190,133 was pledged as
collateral for this loan.
The terms of the various long term debt agreements require, among other
things that the Company maintain certain amounts of tangible net worth, ratios
of current assets to current liabilities, total liabilities to tangible net
worth plus subordinated liabilities, and debt service coverage and restrict the
amount of capital expenditures, and the payment of dividends. The Company was in
compliance with all applicable covenants at June 30, 1999.
Maturities of all long term debt are as follows:
<TABLE>
<CAPTION>
TOTAL STOCKHOLDERS OTHER
------------- ------------ -------------
<S> <C> <C> <C>
Year ending June 30:
2000............................................. $ 538,855 $ 124,024 $ 414,831
2001............................................. 10,757,823 122,103 10,635,720
2002............................................. 502,433 96,126 406,307
2003............................................. 491,146 89,325 401,821
2004............................................. 470,878 70,878 400,000
Thereafter....................................... 992,848 92,848 900,000
------------- ------------ -------------
$ 13,753,983 $ 595,304 $ 13,158,679
------------- ------------ -------------
------------- ------------ -------------
</TABLE>
(10) EMPLOYEE RETIREMENT PLANS
The Company maintains a profit sharing plan for the benefit of eligible
employees of certain subsidiaries. Contributions are made at the sole discretion
of the Board of Directors, but may not exceed the amounts deductible for income
tax purposes. Contributions are first allocated based upon an integration with
the social security taxable wage base and the remainder based upon total
eligible compensation. There were no contributions to the plan for the six
months ended June 30, 1999 or the year ended December 31, 1998. Retirement plan
expense amounted to $138,000 for the year ended December 31, 1997.
The Company also maintains a profit sharing plan which conforms with Section
401 (k) of the Internal Revenue Code. Contributions are made exclusively by the
participants. The Company does not contribute to the Plan.
The Company does not provide post-retirement or other post-employment
benefits.
F-14
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(11) INCOME TAXES
The provision for income tax expense from continuing operations for the six
months ended June 30, 1999 and the years ended December 31, 1998 and 1997 are as
follows:
<TABLE>
<CAPTION>
1999 1998 1997
---------- ----------- ----------
<S> <C> <C> <C>
Federal:
Current............................................... $ 292,222 $ (101,563) $ 727,587
Deferred.............................................. (204,708) 353,711 75,737
---------- ----------- ----------
87,514 252,148 803,324
---------- ----------- ----------
State:
Current............................................... 21,065 (87,923) 166,815
Deferred.............................................. 26,000 (42,391) 13,308
---------- ----------- ----------
47,065 (130,314) 180,195
---------- ----------- ----------
$ 134,579 $ 121,834 $ 983,519
---------- ----------- ----------
---------- ----------- ----------
</TABLE>
Income tax benefit from discontinued operations totaled $2,881,905 for the
year ended December 31, 1997.
Income tax expense from continuing operations for the six months ended June
30, 1999 and the years ended December 31, 1998 and 1997 differed from the
amounts computed by applying the U.S. federal income tax rate of 34% to pretax
income from continuing operations as a result of the following:
<TABLE>
<CAPTION>
1999 1998 1997
---------- ---------- ----------
<S> <C> <C> <C>
Computed "expected" tax expense.......................... $ 77,683 $ 161,525 $ 835,991
Increase in income taxes resulting from:
Nondeductible expenses................................... 14,065 26,047 21,130
State and local income taxes, net of federal income tax
benefit................................................ 31,063 (118,082) 118,929
Other, net............................................... 11,768 52,344 7,469
---------- ---------- ----------
$ 134,579 $ 121,834 $ 983,519
---------- ---------- ----------
---------- ---------- ----------
</TABLE>
F-15
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(11) INCOME TAXES (CONTINUED)
The tax effects of temporary differences that give rise to significant
portions of the deferred tax assets and deferred tax liabilities at June 30,
1999 and December 31, 1998 are presented below:
<TABLE>
<CAPTION>
1999 1998
------------- -------------
<S> <C> <C>
Deferred tax assets:
Net operating losses, federal and state......................... $ 613,176 $ 550,891
Accounts receivable principally due to allowance for doubtful
accounts...................................................... 711,385 295,583
Inventories, cost capitalization................................ 434,596 134,832
Intangible assets............................................... (30,349) 5,057
Compensated absences, principally due to accrual for financial
reporting purposes............................................ 274,589 65,995
Merger integration costs........................................ 938,518 --
Other accrued expenses.......................................... -- 194,605
------------- -------------
Net deferred tax assets......................................... 2,941,915 1,246,963
------------- -------------
Deferred tax liabilities:
Plant and equipment, principally due to differences in
depreciation.................................................. (2,067,639) (1,221,921)
------------- -------------
Net deferred tax asset.......................................... $ 874,276 $ 25,042
------------- -------------
------------- -------------
</TABLE>
As of June 30, 1999 and December 31, 1998 no valuation allowance has been
established relative to the deferred tax assets. In assessing the realizability
of deferred tax assets, management considers whether it is more likely than not
that some portion or all of the deferred tax assets will not be realized. The
ultimate realization of deferred tax assets is dependent upon the generation of
future taxable income during the periods in which those temporary differences
become deductible. Management considers the scheduled reversal of deferred tax
liabilities, carryback availability, and projected future taxable income in
making this assessment. Based upon the level of historical taxable income and
projections for future taxable income over the periods which the deferred tax
assets are deductible, management believes that it is more likely than not the
Company will realize the benefits of these deductible differences. The amount of
the deferred tax asset considered realizable, however, could be reduced in the
near term if estimates of future taxable income during the carryforward period
are reduced.
Deferred taxes are classified in the accompanying consolidated balance
sheets as follows:
<TABLE>
<CAPTION>
1999 1998
------------- -----------
<S> <C> <C>
Current deferred tax asset........................................ $ 1,957,661 $ 718,602
Non-current deferred tax liability................................ (1,083,385) (693,560)
------------- -----------
Net deferred tax asset............................................ $ 874,276 $ 25,042
------------- -----------
------------- -----------
</TABLE>
F-16
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(12) STOCKHOLDERS' EQUITY
(A) STOCK GRANTS
Since 1986 the Company has granted 61,992 shares of its common stock to
certain key employees. The grants are recorded at net book value which was
considered the fair market value on the date of the grant, as determined by
Company management. Granted shares vest 20% per year beginning on the December
31 immediately after the grant. As of June 30, 1999, no shares remain unvested.
No shares were granted in 1999 and 1998. Compensation expense of $4,136,
relating to these grants, was recorded for the year ended December 31, 1997.
(B) STOCK OPTION PLANS
The Company had four stock option plans in effect at June 30, 1999: The 1993
Employees Stock Option Plan (1993 Plan), the 1995 Employees Stock Option Plan
(1995 Plan), the HoloPak Stock Option Plan (HoloPak Plan) and the Non-Employee
Directors' Stock Option Plan (Directors' Plan).
The 1993 and 1995 Employees Stock Option Plans provide for the issuance to
key employees and officers a maximum of 200,000 and 400,000 shares of common
stock, respectively, in the form of stock options. Stock options issued under
these Plans may be granted as "Incentive Stock Options" (as defined by the
Internal Revenue Code of 1986) or non-qualified stock options. Options may be
exercised only within ten years from the date of grant.
In April 1999, each HoloPak stock option granted under the HoloPak Stock
plan was converted in, and became rights with respect to Foilmark common stock.
HoloPak options which qualified as incentive stock options prior to the merger
continue to qualify as incentive stock options after the merger. Options may
only be exercised within twenty years from the original date of grant.
The Non-Employee Directors Stock Option Plan provides for the issuance, to
non-employee directors, a maximum of 75,000 shares of common stock in the form
of stock options. Stock options issued under the plan are non-qualified stock
options. Options may only be exercised within 10 years of the date of the grant,
and shall vest six months after the date of grant.
At June 30, 1999, there were 62,050 additional shares available for grant
under the 1993 Plan, 30,242 additional shares available under the 1995 Plan, 0
shares under the HoloPak Plan and 35,000 shares available under the Non-Employee
Directors Stock Option Plan. The per share weighted-average fair value of stock
options granted during 1999, 1998 and 1997 was $1.57, $2.07 and $3.63
respectively, on the date of grant using the Black Scholes option-pricing model
with the following weighted-average assumptions: In 1999, expected dividend
yield 0%, risk free interest rate ranging from 5.78% to 6.17% and an expected
life of 5 years. In 1998, expected dividend yield 0%, risk-free interest rate
ranging from 4.61% to 5.00%, and an expected life of 5 years. In 1997, expected
dividend yield 0%, risk-free interest rate ranging from 5.53% to 5.69%, and an
expected life of 5 years. The expected volatility rate was 85.7% for all plans
in 1999, 84.4% in 1988 and 88.7% in 1997.
The Company applies APB Opinion No. 25 in accounting for the plans and,
accordingly, no compensation cost has been recognized for its stock options in
the financial statements. Had the Company
F-17
<PAGE>
FOILMARK, INC. & SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
JUNE 30, 1999 AND DECEMBER 31, 1998
(12) STOCKHOLDERS' EQUITY (CONTINUED)
determined compensation cost based on the fair value at the grant date for its
stock options under SFAS No. 123, the Company's net income would have been
reduced to the pro forma amounts indicated below:
<TABLE>
<CAPTION>
1999 1998 1997
----------- ---------- ------------
<S> <C> <C> <C> <C>
Net income (loss) from continuing
operations.......................... As reported $ 93,903 $ 356,742 $ 1,475,279
Pro forma (940,192) 100,874 1,407,130
Net income (loss) per share-- basic
and diluted......................... As reported 0.02 0.09 0.35
Pro forma (0.17) 0.02 0.34
</TABLE>
For purposes of pro forma disclosures, the estimated fair value of the
options is amortized to expense over the options' vesting period.
The following table summarizes stock option activity:
<TABLE>
<CAPTION>
WEIGHTED-AVERAGE
NUMBER OF OPTION PRICE
OPTIONS PER SHARE
---------- -----------------
<S> <C> <C>
Outstanding, December 31, 1996 208,100 $ 5.27
Granted...................................................... 15,000 3.79
Forfeited.................................................... (15,200) 5.39
---------- -----
Balance, December 31, 1997..................................... 207,900 5.61
Granted...................................................... 199,058 3.20
Forfeited.................................................... (12,250) 4.83
---------- -----
Balance, December 31, 1998..................................... 394,708 $ 4.10
Converted HoloPak Options...................................... 83,753 2.16
Granted...................................................... 700,481 1.90
Forfeited.................................................... (17,000) 4.03
---------- -----
Balance, June 30, 1999......................................... 1,161,942 $ 2.64
---------- -----
---------- -----
</TABLE>
The following table summarizes information about employee stock options at
June 30, 1999:
<TABLE>
<CAPTION>
RANGE OF NUMBER WEIGHTED- EXERCISABLE WEIGHTED-
EXERCISE OUTSTANDING AVERAGE AVERAGE AS OF AVERAGE
PRICES 6/30/1999 REMAINING LIFE EXERCISE PRICE 6/30/1999 EXERCISE PRICE
- -------------- ----------- --------------- --------------- ----------- ---------------
<S> <C> <C> <C> <C> <C>
$0.76 - $2.28 730,944 7.0 1.58 515,107 1.58
$2.29 - $4.55 256,418 3.6 3.41 246,418 3.45
$5.31 - $7.59 174,580 1.7 5.91 174,580 5.91
--
----------- ----- ----------- -----
$0.76 - $7.59 1,161,942 5.5 $ 2.64 936,105 $ 2.88
</TABLE>
At June 30, 1999 and December 31, 1998 and 1997, the number of options
exercisable was 936,105 and 394,708 and 202,900 with a weighted-average exercise
price of $2.88, $4.10 and $5.21.
F-18
<PAGE>
(C) EMPLOYEE STOCK PURCHASE PLAN
The Employee Stock Purchase Plan (the "ESPP") covers substantially all
employees. The ESPP allows eligible employees the right to purchase common stock
every eight weeks at 85% of the average market price during the eight week
period. As of June 30, 1999, there were 400,000 shares of common stock reserved
for the ESPP. The number of shares issued under the plan in 1999 and 1998 were
8,179 and 12,246 shares for $14,004 and $29,711 respectively.
(D) SHARE REPURCHASE PROGRAM
On May 25, 1999, the Company's Board of Directors authorized a share
repurchase program to purchase up to 1 million shares in the open market,
depending on market conditions and other factors. The Company did not repurchase
any shares during the six-month period ended June 30, 1999.
(13) OPERATING SEGMENTS
The Company organizes its business units into three reportable segments: hot
stamp foil, holography and pad printing machinery and supplies. The hot stamp
foil segment develops, manufactures and distributes value added hot stamping
foils, used by the graphic arts, plastic and packaging industries, to decorate
or enhance products and their packaging. The holography segment manufactures
holographic media used in the packaging and product enhancement industries. The
pad print and supplies segment manufactures image transfer equipment, pad
printing machinery, screen print systems and printing supplies. The segment
accounting policies are the same as those described in the summary of
significant accounting policies except that income tax expense is not allocated
to the individual operating segments when determining segment profit or loss.
The Company segments are managed separately, as they require different
technologies, offer different products and serve different customers bases.
F-19
<PAGE>
(13) OPERATING SEGMENTS (CONTINUED)
The following table sets forth the six months ended June 30, 1999 and the
twelve months ended December 31, 1998 and 1997 segment financial information:
<TABLE>
<CAPTION>
HOT STAMP PAD-PRINT CORPORATE AND
FOIL HOLOGRAPHY AND SUPPLIES UNALLOCATED TOTAL
------------- ------------- ------------- ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Net sales.................... 1999 $ 13,971,745 $ 5,373,007 $ 3,805,090 $ -- $ 23,149,842
1998 22,326,349 1,825,599 6,734,187 -- 30,886,135
1997 24,984,404 2,643,741 5,751,337 -- 33,379,482
Interest expense............. 1999 287,143 13,516 77,105 (34,214) 343,550
1998 577,767 35,160 182,665 (69,327) 726,265
1997 227,000 7,147 169,054 -- 403,201
Depreciation and
amortization............... 1999 815,109 282,192 155,619 -- 1,252,920
1998 1,233,739 152,412 305,013 -- 1,691,164
1997 1,118,001 182,488 300,115 -- 1,600,604
Segment profit (loss)........ 1999 94,282 82,924 494,935 (443,659) 228,482
1998 1,799,106 (368,788) (132,889) (818,853) 478,576
1997 2,548,772 228,183 212,858 (531,015) 2,458,798
Segment assets............... 1999 24,963,964 11,363,262 7,650,911 3,613,716 47,591,853
1998 17,794,165 2,039,784 7,868,264 2,118,659 29,820,872
1997 18,764,401 1,197,670 7,502,841 4,617,138 32,082,050
Capital expenditures for
Segment assets............. 1999 396,280 160,873 -- -- 557,153
1998 525,924 689,321 56,807 -- 1,272,052
1997 1,020,313 196,548 88,748 -- 1,305,609
</TABLE>
The corporate and unallocated assets include assets of discontinued
operations, notes receivable, income tax receivable, deferred income tax assets
and other corporate assets. Assets of discontinued operations were $9,827,026 in
1997.
Information as to Foilmark's operations in different geographical areas is
presented below. Net sales are categorized based on location of the customer,
while long-lived assets are categorized based on their location:
<TABLE>
<CAPTION>
1999 1998 1997
------------- ------------- -------------
<S> <C> <C> <C>
Net sales:
United States................................. $ 18,787,842 $ 26,380,889 $ 26,693,208
Canada........................................ 1,731,010 -- --
Other International........................... 2,630,990 4,505,246 6,686,274
------------- ------------- -------------
$ 23,149,842 $ 30,886,135 $ 33,379,482
------------- ------------- -------------
------------- ------------- -------------
Long-lived assets:
United States................................. $ 17,539,855 $ 14,773,169 $ 14,856,170
Canada........................................ 1,991,769 -- --
------------- ------------- -------------
$ 19,531,624 $ 14,773,169 $ 14,856,170
------------- ------------- -------------
------------- ------------- -------------
</TABLE>
F-20
<PAGE>
(13) OPERATING SEGMENTS (CONTINUED)
The Company's other international sales are made principally to customers in
Europe, South Africa, the Middle East, Mexico, and South and Central America.
All foreign sales are payable in U.S. dollars. No single other international
country accounted for more than 9% of the Company's net sales.
(14) LEASES
The Company's minimum annual rentals under various non-cancelable operating
leases for warehouse space, equipment and autos are as follows:
<TABLE>
<CAPTION>
Year ending June 30:
- ------------------------------------------------------------------
<S> <C>
2000.............................................................. $1,464,703
2001.............................................................. 1,193,024
2002.............................................................. 820,137
2003.............................................................. 650,566
2004.............................................................. 563,866
Thereafter........................................................ 454,838
</TABLE>
Rental expense under operating leases was $500,146, $598,000 and $516,000,
in 1999, 1998 and 1997, respectively.
(15) QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)
The following table sets forth quarterly financial information for 1999,
1998 and 1997 (in thousands, except for per share data):
<TABLE>
<CAPTION>
NET LOSS PER
INCOME (LOSS) LOSS FROM NET NET INCOME (LOSS) PER SHARE:
GROSS FROM CONTINUING DISCONTINUED INCOME SHARE: CONTINUING DISCONTINUED
NET SALES PROFIT OPERATIONS OPERATIONS (LOSS) OPERATIONS OPERATIONS
--------- --------- ----------------- ------------- --------- ----------------------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
1999:
First quarter........ $ 8,195 $ 2,591 $ 306 $ -- $ 306 $ 0.07 $ --
Second quarter....... 14,955 4,286 (212) -- (212) (0.03) --
--------- --------- ------ ------------- --------- ----- ------
$ 23,150 $ 6,877 $ 94 $ -- $ 94 $ 0.02 $ --
--------- --------- ------ ------------- --------- ----- ------
1998:
First quarter........ $ 8,291 $ 2,412 $ 197 $ -- $ 197 $ 0.05 $ --
Second quarter....... 7,542 2,348 76 -- 76 0.02 --
Third quarter........ 7,881 2,370 256 -- 256 0.06 --
Fourth quarter....... 7,172 1,917 (172) -- (172) (0.04) --
--------- --------- ------ ------------- --------- ----- ------
$ 30,886 $ 9,047 $ 357 $ -- $ 357 $ 0.09 $ --
--------- --------- ------ ------------- --------- ----- ------
1997:
First quarter........ $ 9,801 $ 2,472 $ 473 $ (238) $ 235 $ 0.11 $ (0.05)
Second quarter....... 7,756 2,473 361 (33) 328 0.09 (0.01)
Third quarter........ 8,417 2,495 396 (4,365) (3,969) 0.10 (1.05)
Fourth quarter....... 7,405 2,160 245 (150) 95 0.06 (0.04)
--------- --------- ------ ------------- --------- ----- ------
$ 33,379 $ 9,600 $ 1,475 $ (4,786) $ (3,311) $ 0.09 $ (1.15)
--------- --------- ------ ------------- --------- ----- ------
<CAPTION>
TOTAL NET
INCOME
(LOSS) PER
SHARE
-----------
<S> <C>
1999:
First quarter........ $ 0.07
Second quarter....... (0.03)
-----------
$ 0.02
-----------
1998:
First quarter........ $ 0.05
Second quarter....... 0.02
Third quarter........ 0.06
Fourth quarter....... (0.04)
-----------
$ 0.09
-----------
1997:
First quarter........ $ 0.06
Second quarter....... 0.08
Third quarter........ (0.95)
Fourth quarter....... 0.02
-----------
$ (0.80)
-----------
</TABLE>
Basic and diluted net income (loss) per share were the same for all periods
presented.
(16) FAIR VALUE OF FINANCIAL INSTRUMENTS
The following methods and assumptions were used to estimate the fair value
of each class of financial instruments:
F-21
<PAGE>
(16) FAIR VALUE OF FINANCIAL INSTRUMENTS (CONTINUED)
Accounts receivables-trade, other current assets, notes payable to banks,
accounts payables and accrued expenses, customer deposits and deferred income
taxes: The carrying amounts of these financial instruments approximate fair
value because of the short maturity of those instruments.
Notes payable-stockholders and other long-term debt: The fair value of the
Company's long-term debt is estimated by discounting the future cash flows of
each instrument at rates currently offered to the Company for similar debt
instruments of comparable maturities by the Company's bank. Such fair values
approximated carrying values at June 30, 1999 and December 31, 1998.
(17) COMMITMENTS AND CONTINGENCIES
The Company is involved in various claims and legal actions arising in the
ordinary course of business. In the opinion of management the ultimate
disposition of these matters will not have a material adverse effect on the
Company's consolidated financial position, results of operations or liquidity.
F-22
<PAGE>
SCHEDULE 1
FOILMARK, INC. AND SUBSIDIARIES
Schedule of Valuation and Qualifying Accounts
Six Months ended June 30, 1999
and the Years Ended December 31, 1998 and 1997
<TABLE>
<CAPTION>
COL. B COL. C COL. F
----------- ----------- -----------
COL. A BALANCE AT CHARGED TO COL. D COL. E BALANCE AT
- ------------------------------------------------------ BEGINNING COST AND ------------- ----------- END OF
CLASSIFICATION OF PERIOD EXPENSE DEDUCTIONS(1) OTHER PERIOD
- ------------------------------------------------------ ----------- ----------- ------------- ----------- -----------
<S> <C> <C> <C> <C> <C>
For the year ended December 31, 1997: Allowance for
doubtful accounts (deducted from accounts
receivable)......................................... 339,000 85,000 (76,000) -- 348,000
For the year ended December 31, 1998: Allowance for
doubtful accounts (deducted from accounts
receivable)......................................... 348,000 119,000 (321,000) -- 146,000
For the six months ended June 30, 1999: Allowance For
doubtful accounts (deducted from accounts
receivable)......................................... 146,000 615,000 (17,000) -- 744,000
</TABLE>
- ------------------------
(1) Deductions relate to uncollectible accounts charged off to valuation
accounts, net of recoveries.
S-1
<PAGE>
EXHIBIT INDEX
The following is a list of exhibit files as part of this Annual Report on
Form 10-K. For exhibits incorporated by reference, the location of the exhibit
in the previous filing is indicated in parenthesis.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
2.1 Agreement and Plan of Merger dated November 17, 1998 is incorporated herein by reference to the
Company's Current Report on Form 8-K filed with the Commission on November 25, 1988.
3.1 Restated Certificate of Incorporation of the Company dated October 14, 1993 is incorporated herein by
reference to the Company's Registration Statement on Form S-1 filed with the Commission on October
25, 1993.
3.2 Restated Bylaws of the Company are incorporated herein by reference to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997 and filed with the Commission on March 27,
1998.
3.3 Specimen Stock Certificate of the Company is incorporated herein by reference to the Company's
Current Report on Form 8-K filed with the Commission on May 24, 1994.
3.4 Restated Certificate of Incorporation of the Company is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the
Commission.
3.5 Restated Bylaws of the Company dated May 5, 1995 are incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996 and filed with the
Commission.
3.6 Second Amended and Restated Certificate of Incorporation dated November 20, 1998 is incorporated
herein by reference to the registration statement on Form S-4 filed with the Commission on March
22, 1999.
3.7 Bylaws of Foilmark, Inc., amended as of April 23, 1999 are incorporated herein by reference to the
Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.1 Form of Employment Agreement of the Company is incorporated herein by reference to the Company's
Registration Statement on Form S-1 filed with the Commission on October 25, 1993.
10.2 1993 Stock Option Plan is incorporated herein by reference to Amendment No. 2 to the Company's
Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
10.4 Technical Collaboration Agreement between the Company and Arrow Coated Products Ltd. dated December
18, 1992 is incorporated herein by reference to the Company's Registration Statement on Form S-1
filed with the Commission on October 25, 1993.
10.5 Agreement for the Purchase of Patents between the Company and Leonard Mintz and Franklin
Manufacturing Corporation dated March 12, 1992 is incorporated herein by reference to the Company's
Registration Statement on Form S-1 filed with the Commission on October 25, 1993.
10.6 Waiver Agreement between the Company and Leonard Mintz is incorporated herein by reference to
Amendment No. 1 to the Company's Registration Statement on Form S-1 filed with the Commission on
December 3, 1993.
10.7 Form of Promissory Note and Schedule of Notes is incorporated herein by reference to Amendment No. 2
to the Company's Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.8 Form of Shareholder Note and Schedule of Notes is incorporated herein by reference to Amendment No. 2
to the Company's Registration Statement on Form S-1 filed with the Commission on May 9, 1994.
10.9 China Sales and Distribution Agreement between the Company and X.D. Trading and Consulting Company
dated October 25, 1993 is incorporated herein by reference to the Amendment No. 3 to the Company's
Registration Statement on Form S-1 filed with the Commission on June 17, 1994.
10.10 Sales and Licensing Agreement between the Company and Embossing Technology Limited dated November 10,
1994 is incorporated herein by reference to the Company's Current Report on Form 8-K filed with the
Commission on November 30, 1994.
10.11 Industrial Revenue Bond Loan Agreement dated June 28, 1995 is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the
Commission.
10.12 1995 Employee Stock Purchase Plan is incorporated herein by reference to the Company's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1995 and filed with the Commission.
10.13 1995 Employee Stock Option Plan is incorporated herein by reference to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1995 and filed with the Commission.
10.14 Asset Purchase Agreement between Imtran Industries, Inc. et al, and the Company dated August 3, 1995
is incorporated herein by reference to the Company's Current Report on Form 8-K filed with the
Commission on September 1, 1995.
10.15 Amended and Restated Employee Stock Purchase Plan dated January 31, 1996 is incorporated herein by
reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995
and filed with the Commission on March 30, 1996.
10.16 Amended and Restated Employee Stock Option Plan dated January 31, 1996 is incorporated herein by
reference to the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1995
and filed with the Commission on March 30, 1996.
10.17 Waiver and Amendment to Loan Agreement between the Company and Fleet Bank dated March 20, 1997 is
incorporated herein by reference to the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996 and filed with the Commission on April 14, 1997.
10.18 Consulting Agreement between the Company and Edward Sullivan dated January 1, 1999 is incorporated
herein by reference to the Company's Registration Statement on Form S-4 filed with the Commission
on March 22, 1999.
10.19 Lease Agreement between the Company and Edward G. Molin dated April 21, 1997 is incorporated herein
by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and
filed with the Commission on August 12, 1997.
10.20 Lease Agreement between the Company and Parker Street Realty Trust dated July 1, 1997 is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1997 and filed with the Commission August 12, 1997.
10.21 Lease Agreement between the Company and Faircourt Realty Co. dated April 1, 1997 is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1997 and filed with the Commission on August 12, 1997.
10.22 1997 Non-Employee Director Stock Plan dated April 11, 1997 is incorporated herein by reference to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1997 and filed with the
Commission on August 12, 1997.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.23 Shareholder Agreement between the Company and certain shareholders of HoloPak Technologies, Inc.,
dated November 17, 1998 is incorporated herein by reference to the Company's Current Report on Form
8-K filed with the Commission on November 25, 1998.
10.24 Shareholder Agreement between certain substantial shareholders of the Company and HoloPak
Technologies, Inc., dated November 17, 1998 is incorporated herein by reference to the Company's
Current Report on Form 8-K filed with the Commission on November 25, 1998.
10.25 Non-Competition Agreement between the Company and Leonard Mintz dated December 23, 1998 is
incorporated herein by reference to the Company's Registration Statement on Form S-4 filed with the
Commission on March 22, 1999.
10.26 Waiver to Loan Agreement between the Company and Fleet Bank dated February 18, 1999 is incorporated
herein by reference to the Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998 and filed with the Commission on March 29, 1999.
10.27 Employment Agreement dated March 26, 1998 between Douglas Parker and the Company is incorporated
herein by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1999 and filed with the Commission on May 14, 1999.
10.28 Lease Agreement between the Company and Anchor Associates dated May 14, 1998, commencing March 1,
1999 is incorporated herein by reference to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999 and filed with the Commission on May 14, 1999.
10.29 Voting Agreement between Foilmark and certain stockholders of Foilmark dated April 23, 1999 on Form
8-K filed with the Commission on May 5, 1999.
10.30 Indemnification Agreement between Foilmark and Thomas A. Schwarz dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.31 Indemnification Agreement between Foilmark and Frank J. Olsen, Jr., dated April 23, 1999 is
incorporated herein by reference to the Company's current report on Form 8-K filed with the
Commission on May 5, 1999.
10.32 Indemnification Agreement between Foilmark and Philip Leibel dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.33 Indemnification Agreement between Foilmark and Michael Foster dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.34 Indemnification Agreement between Foilmark and Michael Bertuch dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.35 Indemnification Agreement between Foilmark and Edward Sullivan dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.36 Indemnification Agreement between Foilmark and Glenn Regan dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.37 Indemnification Agreement between Foilmark and Douglas Parker dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.38 Indemnification Agreement between Foilmark and Carol J. Robie dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.39 Indemnification Agreement between Foilmark and Wilhelm Kutsch dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.40 Indemnification Agreement between Foilmark and Brian Kelly dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.41 Indemnification Agreement between Foilmark and Harvey Share dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.42 Indemnification Agreement between Foilmark and James Rooney dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.43 Indemnification Agreement between Foilmark and Joseph T. Webb dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.44 Indemnification Agreement between Foilmark and Arthur Karmel dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.45 Indemnification Agreement between Foilmark and Robert Simon dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.46 Indemnification Agreement between Foilmark and Michael Mathews dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.47 Employment Agreement between Foilmark and Frank J. Olsen, Jr., dated April 23, 1999 is incorporated
herein by reference to the Company's current report on Form 8-K filed with the Commission on May 5,
1999.
10.48 Employment Agreement between Foilmark and Arthur Karmel dated April 23, 1999 is incorporated herein
by reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.49 Employment Agreement between Foilmark and Joseph T. Webb dated April 23, 1999 is incorporated herein
by reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.50 Employment Agreement between Foilmark and James Rooney dated April 23, 1999 is incorporated herein by
reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.51 Registration Rights Agreement among Foilmark, Bradford Venture Partners, Overseas Private Investor
Partners and certain other stockholders of Foilmark dated April 23, 1999 is incorporated herein by
reference to the Company's current report on Form 8-K filed with the Commission on May 5, 1999.
10.52 Amended and Restated Credit Agreement dated August 6, 1999 between Fleet National Bank and the
Company, and exhibits thereto.
10.53 Employment Agreement dated July 1, 1999 between Carol J. Robie and the Company.
10.54 Employment Agreement dated July 1, 1999 between Wilhelm Kutsch and the Company.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------------------------------------------------------------------------------------------------
<C> <S>
10.55 Employment Agreement dated July 1, 1999 between Philip Leibel and the Company.
10.56 First Amendment to the Foilmark, Inc. Amended and Restated 1995 Stock Incentive Compensation Plan
dated August 19, 1999.
10.57 First Amendment to the Foilmark, Inc. Non-Employee Directors' Stock Plan dated August 19, 1999.
*10.58 Lease dated April 23, 1999 between Owen Wagener & Co. and the Company.
*10.59 Third Extension and Amendment to Lease dated as of April 30, 1999 between Highview Properties-One,
LLC and Transfer Print Foils.
27 Financial Data Schedule
</TABLE>
* To be filed by Amendment
<PAGE>
EXHIBIT 10.52
FLEET NATIONAL BANK AMENDED AND RESTATED
CREDIT AGREEMENT
This Amended and Restated Credit Agreement, dated August 6, 1999
between Fleet National Bank, a national banking association organized and
existing under the laws of the United States of America (the "Bank"), having an
office at One Federal Street, Boston, Massachusetts 02109 and Foilmark, Inc., a
Delaware corporation (the "Borrower" or "Foilmark") having its chief executive
office at 5 Malcolm Hoyt Drive, Newburyport, Massachusetts.
WHEREAS, Foilmark, Foilmark Manufacturing Corporation, a Delaware
corporation ("FMC"), Kensol-Olsenmark, Inc., a Delaware corporation ("Kensol"),
West Foils, Inc., a California corporation ("West") and Imtran Foilmark, Inc., a
Delaware corporation ("Imtran"), and the Bank (as successor-in-interest to
Shawmut Bank, N.A.), and also as agent (as assignee of The Chase Manhattan Bank,
successor-in-interest to Chemical Bank), are parties to that certain Credit
Agreement dated as of June 28, 1995, as amended by Amendment to Credit Agreement
dated as of March 31, 1997, by Second Amendment to Credit Agreement dated as of
June 30, 1997 and by Third Amendment dated as of January 13, 1998 (as amended,
the "Credit Agreement"); and
WHEREAS, Imtran and FMC merged into Kensol as of July 1, 1998, and
concurrently with said merger, Kensol changed its name to Foilmark Manufacturing
Corporation; and
WHEREAS, West merged into Foilmark as of July 1, 1998; and
WHEREAS, the Borrower, HoloPak Technologies, Inc., a Delaware
corporation ("HoloPak"), Transfer Print Foils, Inc., a New Jersey corporation
("TPF") and the Bank are parties to that certain Credit Agreement dated May 6,
1999 (the "Bridge Loan Credit Agreement") pursuant to which the Bank established
a term loan (the "Bridge Term Loan") in favor of the Borrower, HoloPak and TPF
in the original principal amount of One Million Eighty Thousand Dollars
($1,080,000.00); and
WHEREAS, the Bridge Term Loan matures on August 6, 1999; and
WHEREAS, the Borrower wishes to use a portion of the proceeds of the
Term Loan (as defined herein) to payoff the Bridge Term Loan; and
WHEREAS, the Borrower and the Bank wish to amend and restate the Credit
Agreement in its entirety and establish the Line of Credit (as hereafter
defined), the Equipment Loan (as hereafter defined) and the Term Loan (as
hereafter defined) for the direct benefit of the Borrower and its Subsidiaries;
and
WHEREAS, the Borrower will provide its Subsidiaries with a source of
revenue and other direct and substantial benefits in connection with the Loans
(as defined herein).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Borrower and the Bank hereby
agree that the Credit Agreement is hereby replaced in its entirety as follows:
W I T N E S S E T H
SECTION 1. DEFINITIONS
Each reference to:
"ACCOUNTS," "GENERAL INTANGIBLES," "GOODS" and "INVENTORY" shall have the
meaning assigned to each in the Uniform Commercial Code from time to time in
effect in the Commonwealth of Massachusetts.
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"AFFILIATE" means any person, corporation or other entity which directly or
indirectly controls, or is controlled by, or is under common control with the
Borrower, and shall be deemed to include, without limitation, any holder of 10%
or more of any stock or other interest in the Borrower.
"AGREEMENT" means this Amended and Restated Loan Agreement.
"CONTROL" shall be deemed to exist if any person, entity or corporation, or
combination thereof shall have possession, directly or indirectly, of the power
to direct the management or policies of any other entity.
"DIVIDENDS" means, for the applicable period, the aggregate of all amounts paid
or payable (without duplication) as dividends, distributions or owner
withdrawals, and includes any purchase, redemption or other retirement of any
shares or other ownership interest directly or indirectly through a Subsidiary
or otherwise and includes return of capital to shareholders, partners or
members.
"EQUIPMENT LOAN" means the maximum credit set forth in Section 3.1 of this
Agreement.
"EQUIPMENT NOTE" means the note executed and delivered by the Borrower which
evidences the line of credit feature under the Equipment Loan.
"EQUIPMENT NOTE 2000" shall have the meaning given such term in Section 3.1 of
this Agreement.
"EQUIPMENT NOTE 2001" shall have the meaning given such term in Section 3.1 of
this Agreement.
"EVENTS OF DEFAULT" shall have the meaning given such term in Section 10 of this
Agreement.
"EXCHANGE ACT REPORTS" means those current reports on Form 8K, quarterly reports
on Form 10Q and annual reports on Form 10K of the Borrower filed with the SEC
pursuant to Section 12(d) of the Securities Exchange Act of 1934.
"GAAP" means generally accepted accounting principles in the United States of
America, as from time to time in effect; provided, however, that for purposes of
compliance with Section 9 of this Agreement and the related definitions, GAAP
means such principles as in effect on the date of the preparation and delivery
of the financial statements described in Section 5.3 and consistently followed,
without giving effect to any subsequent changes other than changes consented to
in writing by the Bank.
"GUARANTOR" means HoloPak Technologies, Inc., Transfer Print Foils, Inc.,
Foilmark Manufacturing Corporation, Alubec Industries, 2945-5469 Quebec, Inc.
and Foilmark Foreign Sales Corporation.
"INDEBTEDNESS" means all obligations that in accordance with generally accepted
accounting principles ("GAAP") should be classified as liabilities upon a
balance sheet or to which reference should be made by footnotes thereto.
"INTEREST" means, for the applicable period, all interest expense, including,
but not limited to, interest on Indebtedness and on Capital Leases, as defined
in Section 9, as set forth in the financial statements and Exchange Act Reports
of the Borrower, determined in accordance with GAAP.
"LINE OF CREDIT" means the maximum credit set forth in Section 2.1 of this
Agreement that the Bank may advance to the Borrower and the Borrower may borrow
from the Bank.
"LINE OF CREDIT NOTE" means the amended and restated note executed and delivered
by the Borrower which evidences the Line of Credit.
"LINE OF CREDIT TERMINATION DATE" shall have the meaning given in Section 2.1 of
this Agreement.
"LOANS" means, collectively, the Equipment Loan, the Line of Credit and the Term
Loan.
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"NOTES" means collectively the Equipment Note, Equipment Note 2000, Equipment
Note 2001, the Line of Credit Note and the Term Note.
"RELATED AGREEMENTS" means the various agreements and documents executed in
connection with this Agreement and such other documents as requested by the
Bank, delivered or caused to be delivered, by the Borrower to the Bank.
"SEC" means the United States Securities and Exchange Commission or any
successor authority.
"SOLVENT" means (a) the fair value of the property of such person or entity
exceeds its total liabilities (including contingent liabilities), (b) the
present fair saleable value of the assets of such person or entity is not less
than the amount that will be required to pay its probable liability on its debts
as they become absolute and matured, (c) such person or entity does not intend
to, and does not believe that it will, incur debts or liabilities beyond its
ability to pay as such debts and liabilities mature, and (d) such person or
entity is not engaged, and is not about to engage, in business or a transaction
for which its property would constitute an unreasonably small capital.
"SUBORDINATED DEBT" means Indebtedness subordinated in writing in a manner
approved by the Bank to the prior payment, in full, of the Notes and any other
Indebtedness owed by such person to the Bank.
"SUBSIDIARY" means any corporation, person or entity, a majority of whose
outstanding shares or other ownership interests having ordinary voting powers,
shall at any time be owned or controlled by the Borrower or one or more of its
subsidiaries.
"TERM LOAN" means the maximum credit set forth in Section 4.1 of this Agreement.
"TERM NOTE" means the note executed and delivered by the Borrower which
evidences the Term Loan.
SECTION 2. THE LINE OF CREDIT
2.1 THE LINE OF CREDIT. Pursuant to the terms of this Agreement and
subject to the satisfaction of the conditions precedent referred to in Section 6
hereof, the Bank agrees to lend to the Borrower, and the Borrower may, in its
sole discretion, borrow from the Bank, advances not to exceed in the aggregate
at any time the maximum credit limit (the "Line of Credit") equal to the maximum
principal amount of Ten Million Dollars ($10,000,000.00) as evidenced by the
Line of Credit Note.
If any advances are made to the Borrower during the period from the
date hereof until December 31, 2002 (as such date may be extended in writing
from time to time in the Bank's sole and absolute discretion, the "Line of
Credit Termination Date"), unless an Event of Default or any event which would
be an Event of Default but for the giving of any required notice and/or the
expiration of any cure period (hereafter, a "Default") occurs, the Borrower may
borrow, repay and reborrow, subject to the maximum credit limit set forth above;
provided, however, that all outstanding principal plus accrued and unpaid
interest shall be paid in full on the Line of Credit Termination Date. Within
the limits of the Line of Credit, and only as permitted by Section 8.7 hereof,
Foilmark may borrow up to One Million Five Hundred Thousand Dollars
($1,500,000.00) for the repurchase by Foilmark of the capital stock of Foilmark.
2.2 ADVANCES. All advances shall be made in response to any Borrower's
written request by a deposit to any of the Borrower's accounts with the Bank.
Advances shall be repaid to the Bank as provided in the Line of Credit Note. All
advances made by the Bank to the Borrower shall be evidenced by an appropriate
notation on the books and records of the Bank as to the amount of the advance,
each repayment on account of the principal thereof and the amount of interest
paid; and the Borrower authorizes the Bank to maintain such records or make such
notations and agrees that the amount shown on the books and records of the Bank
as outstanding from time to time shall constitute the amount owing to the Bank
pursuant to this Agreement, absent manifest error.
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2.3 INTEREST. The outstanding principal balance of all advances made by
the Bank to the Borrower shall accrue interest at the per annum rate as provided
in the Line of Credit Note. Such interest shall be payable as specified in the
Line of Credit Note.
2.4 PAYMENT OF PRINCIPAL AND INTEREST. The Bank is authorized (but not
required) to charge principal and interest and all other amounts due hereunder,
under any Related Agreement and under the Line of Credit Note to any account of
the Borrower when and as it becomes due.
2.5 FACILITY FEE. The Borrower agrees to pay to the Bank a facility fee
with respect to the Line of Credit, which fee shall be payable on an annual
basis, commencing on June 30, 1999, and on each anniversary date of the Line of
Credit, and shall be in an amount equal to one quarter of one percent (.25%) per
annum computed based on the maximum credit line as evidenced by the Line of
Credit Note.
SECTION 3. THE EQUIPMENT LOAN
3.1 EQUIPMENT LOAN. Pursuant to the terms of this Agreement and subject
to the satisfaction of the conditions precedent referred to in Section 6 hereof,
the Bank agrees to lend to the Borrower, and the Borrower may, in its sole
discretion, borrow from the Bank, advances not to exceed in the aggregate at any
time the maximum credit limit (the "Equipment Loan") equal to Four Million
Dollars ($4,000,000.00). Advances under the Equipment Loan shall be made in an
amount equal to up to one hundred percent (100%) of the purchase price of each
such piece of equipment, as reflected on an invoice in form acceptable to the
Bank. Advances under the Equipment Loan may be made to the Borrower during the
period from the date hereof until June 30, 2000, unless an Event of Default or a
Default occurs, subject to the maximum credit amount set forth in this Section
3.1. On June 30, 2000, the principal balance then outstanding under the
Equipment Loan shall no longer be available to the Borrower for borrowing on a
revolving basis. Such amount shall be repaid as provided in that certain
promissory note in the form of Exhibit 3.1A attached hereto, and any amendments,
modifications, replacements or substitutions thereof ("Equipment Note 2000"),
which shall provide for, among other things, a seven (7) year straight-line
amortization schedule. Such amount shall be repaid in accordance with the terms
of Equipment Note 2000. Any unused portion of the Equipment Loan available on
June 30, 2000 and not evidenced by Equipment Note 2000 shall be available to the
Borrower for revolving advances under the Equipment Loan until June 30, 2001. On
June 30, 2001, the line of credit feature of the Equipment Loan shall terminate,
and the then outstanding principal balance of the Equipment Loan plus accrued
and unpaid interest thereon shall be repaid in accordance with the terms of that
certain promissory note in the form of Exhibit 3.1B attached hereto, and any
amendments, modifications, replacements or substitutions thereof ("Equipment
Note 2001"), which shall provide for, among other things, a seven (7) year
straight-line amortization schedule.
3.2 ADVANCES. All advances shall be made in response to any Borrower's
written request by a deposit to any of the Borrower's accounts with the Bank.
Advances shall be repaid to the Bank as provided in the Equipment Note,
Equipment Note 2000 and Equipment Note 2001, as appropriate. All advances made
by the Bank to the Borrower shall be evidenced by an appropriate notation on the
books and records of the Bank as to the amount of the advance, each repayment on
account of the principal thereof and the amount of interest paid; and the
Borrower authorizes the Bank to maintain such records or make such notations and
agrees that the amount shown on the books and records of the Bank as outstanding
from time to time shall constitute the amount owing to the Bank pursuant to this
Agreement, absent manifest error.
3.3 INTEREST. The outstanding principal balance of all advances made by
the Bank to the Borrower shall accrue interest at the per annum rate as provided
in the Equipment Note, Equipment Note 2000 and Equipment Note 2001, as
appropriate. Such interest shall be payable as specified in the Equipment Note,
Equipment Note 2000 and Equipment Note 2001, as appropriate.
3.4 PAYMENT OF PRINCIPAL AND INTEREST. The Bank is authorized (but not
required) to charge principal and interest and all other amounts due hereunder,
under any Related Agreement and under the Equipment Note,
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Equipment Note 2000 and Equipment Note 2001, as appropriate to any account of
the Borrower when and as it becomes due.
3.5 FACILITY FEE. The Borrower agrees to pay the Bank a facility fee
with respect to the Equipment Loan, which fee shall be payable on the date of
the closing of the Equipment Loan, and shall be in an amount equal to one
quarter of one percent (.25%) of the Equipment Loan.
SECTION 4. THE TERM LOAN
4.1 TERM LOAN. Pursuant to the terms of this Agreement and subject to
the satisfaction of the conditions precedent referred to in Section 6 hereof,
the Bank agrees to lend to the Borrower the sum of Five Million Dollars
($5,000,000.00) (the "Term Loan"). All outstanding principal plus accrued and
unpaid interest shall be paid in accordance with the terms of the Term Note.
4.2. ADVANCES. The Term Loan shall be repaid to the Bank as provided in
the Term Note. All advances made by the Bank to the Borrower shall be evidenced
by an appropriate notation on the books and records of the Bank as to the amount
of the advance, each repayment on account of the principal thereof and the
amount of interest paid; and the Borrower authorizes the Bank to maintain such
records or make such notations and agrees that the amount shown on the books and
records of the Bank as outstanding from time to time shall constitute the amount
owing to the Bank pursuant to this Agreement, absent manifest error.
4.3. INTEREST. The outstanding principal balance of all advances made
by the Bank to the Borrower shall accrue interest at the per annum rate as
provided in the Term Note. Such interest shall be payable as specified in the
Term Note
4.4. PAYMENT OF PRINCIPAL AND INTEREST. The Bank is authorized (but not
required) to charge principal and interest and all other amounts due hereunder,
under any Related Agreement and under the Term Note to any account of the
Borrower when and as it becomes due.
4.5. FACILITY FEE. The Borrower agrees to pay to the Bank a facility
fee with respect to the Term Loan, which fee shall be payable on the date of the
closing of the Term Loan, and shall be in an amount equal to one quarter of one
percent (.25%) of the Term Loan.
SECTION 5. REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to the Bank (which
representations and warranties will survive the delivery of the Notes and this
Agreement and the making of any advances and shall be deemed to be continuing
until the Notes are fully paid and this Agreement is terminated) that:
5.1 EXISTENCE AND POWER. (a) The Borrower is and will continue to be,
duly organized and validly existing and in good standing under the laws of its
state of organization; (b) the Borrower is qualified and in good standing to do
business in all other jurisdictions in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary; (c) the Borrower has the power to execute and deliver
this Agreement, the Notes, the Related Agreements and to borrow hereunder; and
(d) the Borrower has all requisite permits, authorizations and licenses, without
unusual restrictions or limitations, to own, operate and lease its properties
and to conduct the business in which it is presently engaged, all of which are
in full force and effect.
5.2 AUTHORITY. The making and performance by the Borrower of this
Agreement and the Related Agreements have been authorized by all necessary
action. The execution and delivery of this Agreement, the Notes and the Related
Agreements, the consummation of the transactions herein and therein
contemplated, the fulfillment of or compliance with the terms and provisions
hereof and thereof, (a) are within its powers, (b) will not violate any
provision of law or of its organizational documents, or (c) will not result in
the breach of, or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon any property or assets of the Borrower pursuant
to any indenture or bank loan or credit agreement (other than those with the
Bank) or other
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agreement or instrument to which the Borrower is a party. No approval,
authorization, consent or other order of or registration or filing with any
person, entity or governmental body is required in connection with the making
and performance of this Agreement, the Notes or the Related Agreements.
5.3 FINANCIAL CONDITION. The consolidated financial statements of
Borrower and Guarantor heretofore delivered to the Bank, were prepared in
conformity with GAAP and are correct and complete and fairly present the
financial condition and the results of operations of the Borrower and Guarantors
for the period(s) and as of the date(s) thereof. There are no material direct or
contingent liabilities not disclosed in such statements, or not otherwise
disclosed in writing to the Bank. Since the date of the latest consolidated
financial statements delivered to the Bank, there has not occurred any event or
circumstance that has resulted or is reasonably likely to result in any material
adverse change in the assets, liabilities, financial condition, business or
prospects of the Borrower and Guarantors, taken on a consolidated basis, since
the date of such financial statements, and, except as disclosed to the Bank in
writing, no Dividends have been declared or made to shareholders, nor have any
shares or other ownership interest of Borrower of any class, been purchased or
acquired in any manner, except in connection to the merger of Foilmark and
HoloPak.
5.4 STATUTORY COMPLIANCE. The Borrower is in substantial compliance
with all federal, state, county and municipal laws, ordinances, rules or
regulations applicable to it, its property or the conduct of its business,
including, without limitation, those pertaining to or concerning the employment
of labor, employee benefits, public health, safety and the environment.
5.5 LITIGATION. Except as disclosed in Exchange Act Reports, no
proceedings by or before any private, public or governmental body, agency or
authority and no litigation is pending or threatened against the Borrower which
if adversely decided would have a material adverse effect on the Borrower or the
Borrower's business operations, on a consolidated basis.
5.6 SUBSIDIARIES, AFFILIATES. Except as disclosed in Exchange Act
Reports or as set forth on Schedule 5.6 hereof, the Borrower has no
Subsidiaries, or to its knowledge any Affiliates, and the Borrower has not
invested in the stock, common or preferred, or invested in any other ownership
interest of any corporation or other entity.
5.7 EVENTS OF DEFAULT. No Event of Default has occurred and no event
has occurred or is continuing which, pursuant to the provisions of Section 10,
with the lapse of time and/or the giving of a notice specified therein, would
constitute such an Event of Default.
5.8 USE OF PROCEEDS. The Borrower shall use the proceeds of the Line of
Credit and the Term Loan to support working capital needs of the Borrower and
under the Equipment Loan to purchase equipment used in the Borrower's business,
and for general commercial purposes, provided that no part of such proceeds will
be used, in whole or in part, for the purpose of (a) acquiring all or
substantially all of the assets or stock of any person, entity or corporation or
(b) purchasing or carrying any "margin stock" as such term is defined in
Regulation U of the Board of Governors of the Federal Reserve System.
5.9. VALIDITY. This Agreement, the Notes and all Related Agreements,
upon the execution and delivery thereof, will be legal, valid, binding and
enforceable obligations of the Borrower or the person executing the same, as the
case may be, in accordance with the terms of each, subject to applicable
bankruptcy laws, general equitable principles and principles of public policy.
5.10 TITLE TO PROPERTY. The Borrower has good and marketable title to
its properties and assets subject to no mortgage, pledge, lien, security
interest, encumbrance or other charge not set forth in the financial statements
delivered pursuant to Section 5.3 above or any Related Agreement.
5.11 TAXES. The Borrower has filed all tax returns and reports required
to be filed by it with all federal, state or local authorities and has paid in
full or made adequate provision for the payment of all taxes, interest,
penalties, assessments or deficiencies shown to be due or claimed to be due on
or in respect of such tax returns and reports.
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5.12 BUSINESS NAME AND LOCATIONS. Except as set forth in Schedule 5.12
attached hereto, the Borrower conducts its business solely in its own name
without the use of a trade name or the intervention of or through any other
entity of any kind. All books and records relating to Borrower's assets are
located at the Borrower's chief executive offices as set forth above and its
other places and locations, where its assets are located, as set forth in
Schedule 5.12 attached hereto.
5.13 NOTICES OF ENVIRONMENTAL PROBLEMS. Except as disclosed in the
Forms 10K of the Borrower, the Borrower has not given nor has it received, any
notice that: (a) there has been a release, or there is a threat of release, of
toxic substances or hazardous wastes from any real property owned or operated by
the Borrower; (b) the Borrower may be or is liable for the costs of cleaning up
or responding to a release of any toxic substances or hazardous wastes; or (c)
any of such real property is subject to a lien for any liability arising from
costs incurred in response to a release of toxic substances or hazardous wastes.
5.14 YEAR 2000 RISK. Except as disclosed in the Forms 10K of the
Borrower, the Borrower is reviewing the "Year 2000 Risk" (that is the risk that
computer applications used by the Borrower and/or its suppliers and vendors may
be unable to recognize and perform without error date-sensitive functions
involving certain dates prior to and any date after December 31, 1999) and
represents that it is taking such action as may be necessary to ensure that the
Year 2000 Risk will not materially adversely affect its business operations
and/or financial condition.
5.15 YEAR 2000 COMPLIANCE. Except as disclosed in the Forms 10K of the
Borrower, the Borrower will be Year 2000 Compliant by January 1, 2000. As used
herein, "Year 2000 Compliant" shall mean with regard to the Borrower that all
software, embedded microchips, and other processing capabilities utilized by,
and material to the business operations or financial condition of, such entity
are able to interpret and manipulate data on and involving all calendar dates
correctly and without causing any abnormal ending scenario, including the
relation to dates on and after January 1, 2000.
5.16 SOLVENCY. The Borrower is, and will be after the transactions
contemplated herein, Solvent.
SECTION 6. CONDITIONS PRECEDENT
6.1 The initial advance under the Line of Credit and the Equipment
Loan, and the making of the Term Loan, shall be subject to the following
conditions precedent:
(a) APPROVAL OF BANK COUNSEL. All legal matters incident to the
transactions hereby contemplated shall be satisfactory to counsel for the Bank.
(b) PROOF OF ACTION. The Bank shall have received such documents
evidencing the Borrower's power to execute and deliver this Agreement, the Notes
and the Related Agreements as the Bank or its counsel shall reasonably request.
(c) THE NOTES, RELATED AGREEMENTS AND DOCUMENTS. The Borrower shall
have delivered to the Bank the Notes, this Agreement and the Related Agreements
and such other documents as the Bank may reasonably request.
(d) OPINION OF COUNSEL. At the Bank's option, the Bank shall have
received from counsel for the Borrower a written opinion, satisfactory in form
and substance to the Bank and its counsel.
6.2 Every advance under the Line of Credit and the Equipment Loan shall
be subject to the following conditions precedent that:
(a) NO EVENT OF DEFAULT. No Event of Default has occurred and no event
has occurred or is continuing which, pursuant to the provisions of Section 10,
with the lapse of time and/or the giving of a notice as specified therein, would
constitute an Event of Default.
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(b) NO MATERIAL ADVERSE CHANGE. The Borrower shall deliver to the Bank
a certificate executed by the Chief Financial Officer of the Borrower stating
that there has not occurred any event or circumstance that has resulted or is
reasonably likely to result in any material adverse change in the assets,
liabilities, financial condition, business or prospects of the Borrower and
Guarantors taken on a consolidated basis since the date of any financial
statements delivered to the Bank before or after the date of this Agreement.
(c) REPRESENTATIONS AND WARRANTIES. That the representations and
warranties contained in Sections 5.1 through 5.15 are true and correct in all
material respects, and that the Borrower shall have so certified to the Bank.
Any request for an advance shall be deemed a certification by the Borrower as to
the truth and accuracy of the representations and warranties contained in
Sections 5.1 through 5.15 as of the date of such request.
SECTION 7. AFFIRMATIVE COVENANTS
Unless the Bank consents in writing, the Borrower covenants and agrees
that, until payment in full of the Notes and the complete performance of all
obligations hereunder and under any Related Agreement, it shall:
7.1 FINANCIAL STATEMENTS; NOTICE OF DEFAULT. Deliver to the Bank:
(a) promptly upon the Bank's written request, such information (not
otherwise required to be delivered by this Section 7.1) about the financial
condition, business and operations of the Borrower, as the Bank may, from time
to time, reasonably request.
(b) INTERIM REPORTS: within forty-five (45) days after the close of all
but the last quarter of each fiscal year of the Borrower, consolidated financial
statements including a balance sheet of such person(s) as of the close of each
period and consolidated statements of income and retained earnings for that
portion of the year-to-date then ended, in the form of Form 10Q customarily
filed with the SEC.
(c) ANNUAL REPORT: within one hundred twenty (120) days after the close
of each fiscal year of the Borrower, consolidated financial statements including
a consolidated balance sheet as of the close of such year and consolidated
statements of income and retained earnings and cash flows for the year then
ended, accompanied by a report thereon, prepared in conformity with GAAP and
containing an opinion prepared on an audited basis by the Borrower's independent
certified public accountants.
(d) MANAGEMENT AUDIT LETTER: simultaneously with the delivery of the
financial statements required in (b) and (c) above, a management audit letter
certifying that, as of the end of the applicable period, the Borrower is in full
compliance with all affirmative, negative and financial covenants set forth in
this Agreement applicable to such person(s) and certified by an officer of such
person(s), as accurate, true and complete.
All financial statements delivered to the Bank shall be consolidated,
consolidating and/or individual statements, as the Bank shall require. Upon
becoming aware of any Event of Default, or of any occurrence which but for the
giving of notice or the passage of time would become an Event of Default, the
Borrower and each Guarantor shall promptly deliver written notice thereof to the
Bank.
7.2 INSURANCE. (a) Keep, and shall cause each Guarantor to keep its
properties insured against fire and other hazards (so called "All Risk"
coverage) in amounts and with companies satisfactory to the Bank to the same
extent and covering such risks as is customary in the same or a similar
business, but in no event in an amount less than the full insurable value
thereof, which policies shall name the Bank as loss payee as its interest may
appear, (b) maintain public liability coverage against claims for personal
injuries or death, (c) maintain all worker's compensation, employment or similar
insurance as may be required by applicable law. Such All Risk property insurance
coverage shall provide for a minimum of thirty (30) days' written cancellation
notice to the Bank. It agrees to deliver copies of all of the aforesaid
insurance policies to the Bank. In the event of any loss or damage to any
material portion of its assets, including any collateral securing the Term Loan
or any advance under the
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Equipment Loan or the Line of Credit, it shall give immediate written notice to
the Bank and to its insurers of such loss or damage and shall promptly file
proofs of loss with said insurers.
7.3 COMPLIANCE WITH LAWS; PAYMENT OF TAXES AND OTHER LIENS. Comply, and
shall cause each Guarantor to comply with all federal, state, county and
municipal laws, rules, ordinances and regulations applicable to it, its business
or property, including without limitation, those pertaining to or concerning the
employment of labor, employee benefits, public health, safety and the
environment. It shall pay all taxes, assessments, governmental charges or
levies, or claims for labor, supplies, rent and other obligations made against
it or its property which, if unpaid, might become a lien or charge against it or
its property, except liabilities being contested in good faith against which it
shall maintain reserves in amount reasonably satisfactory to the Bank.
7.4 EXECUTIVE OFFICES AND PLACES OF BUSINESS. Keep, and shall cause
each Guarantor to keep its executive offices, principal places of business and
locations of assets, at the locations set forth in this Agreement and it shall
maintain its principal places of business, its executive offices and locations
of assets, at said locations. It shall promptly give Bank written notice of any
change in any of such addresses. All business records, including those
pertaining to all accounts and contract rights, shall be kept at the said
executive offices, unless prior written consent of Bank is obtained to a change
of location.
7.5 INSPECTION. Allow, and shall cause each Guarantor to allow the Bank
by or through any of its officers, agents, attorneys, or accountants designated
by it, for the purpose of ascertaining whether or not each and every provision
hereof and of any Related Agreement, instrument or document is being performed
and for the purpose of examining its assets and the records relating thereto, to
enter its offices, and plants to examine or inspect any of the properties, books
and records or extracts therefrom and to make copies thereof and to discuss the
affairs, finances and accounts thereof with it and its accountants, all at such
reasonable times and as often as the Bank may reasonably request.
7.6 LITIGATION. Promptly advise the Bank of the commencement of or
threat of litigation against it or any Guarantor, including arbitration
proceedings and any proceedings before any governmental agency, which might have
a material adverse effect upon its assets, liabilities, financial condition or
business taken on a consolidated basis, or where the amount involved is $50,000
or more.
7.7 NOTICES OF ENVIRONMENTAL AND LABOR ACTIONS AND CLAIMS. Immediately
notify the Bank in writing of (a) any enforcement, clean-up, removal or other
action instituted or threatened by any federal, state, county or municipal
authority or agency against it or any Guarantor pursuant to any public health,
safety or environmental laws, rules, ordinances and regulations, (b) any and all
claims made or threatened by any third party against Borrower or any Guarantor
or any real property owned or operated by either relating to the existence of,
or damage, loss or injury from any toxic substances or hazardous wastes or any
other conditions constituting actual or potential violations of such laws,
rules, ordinances or regulations, and (c) any enforcement or compliance action,
instituted or threatened or claim made or threatened by any federal or state
authority against it or any Guarantor relating to the employment of labor or
employee benefits.
7.8 CONDUCT OF BUSINESS/MAINTENANCE OF EXISTENCE. Continue to conduct
its business as presently conducted, in the same, similar, complementary or
synergistic manner, maintain its existence and maintain its properties in good
repair, working order and operating condition. It shall immediately notify the
Bank of any event causing material loss or unusual depreciation in the value of
its business assets and the amount of same.
7.9 PERFORMANCE. Comply with all terms and conditions of this
Agreement, the Related Agreements and the Notes.
7.10 DEPOSITS. Maintain the Bank as its principal bank of deposit and
account.
SECTION 8. NEGATIVE COVENANTS
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Unless the Bank consents in writing, the Borrower covenants and agrees
that, until payment is made in full of the Notes and the complete performance of
all obligations hereunder and under any Related Agreement, it shall not, and
shall not allow any Guarantor to:
8.1 ENCUMBRANCES AND AGREEMENTS NOT TO PLEDGE. (a) Incur or permit to
exist any lien, mortgage, security interest, pledge, charge or other encumbrance
against any of its property or assets, whether now owned or hereafter acquired
(including, without limitation, any lien or encumbrance relating to any
response, removal or clean-up of any toxic substances or hazardous wastes),
except: (i) liens required or permitted by this Agreement; (ii) pledges or
deposits in connection with or to secure worker's compensation and unemployment
insurance; (iii) tax liens which are being contested in good faith and in
compliance with Section 7.3 hereof; (iv) liens, mortgages, security interests,
pledges, charges or other encumbrances in favor of the Bank or specifically
permitted, in writing, by the Bank; (v) liens arising under operation of law
which in the aggregate do not exceed Fifty Thousand Dollars ($50,000.00) on a
consolidated basis; and (vi) liens permitted by the Bank in favor of any
participant; (b) Enter into or permit to exist any agreement, arrangement or
understanding, either oral or in writing, with any person or entity other than
the Bank which restricts or prohibits the Borrower from incurring or permitting
to exist any lien, mortgage, security interest, pledge, charge or other
encumbrance on all or any portion of the Borrower's property or assets whether
now owned or hereafter acquired; (c) Enter into or permit to exist any
agreement, arrangement or understanding, either oral or in writing, with any
person or entity other than the Bank pursuant to which the Borrower would incur
or permit to exist any lien, mortgage, security interest, pledge, charge or
other encumbrance on all or any portion of the Borrower's property or assets
whether now owned or hereafter acquired.
8.2 LIMITATION ON INDEBTEDNESS. Create or incur any Indebtedness for
borrowed money, become liable, either actually or contingently, in respect of
letters of credit or banker's acceptances or issue or sell any of its
obligations, excluding, however, from the operation of this covenant: (a) the
Line of Credit, the Equipment Loan and Term Loan hereunder and all other
Indebtedness to the Bank; (b) Subordinated Debt; and (c) purchase money loans or
other such Indebtedness not in excess of Fifty Thousand Dollars ($50,000.00) in
the aggregate on a consolidated basis unless expressly permitted by the Bank in
writing.
8.3 DISPOSITION OF ASSETS. Sell, lease, pledge, transfer or otherwise
dispose of all or any of its assets (other than the disposition of inventory in
the ordinary course of its business as presently conducted or replacement of
obsolete equipment), whether now owned or hereafter acquired in excess of Fifty
Thousand Dollars ($50,000.00) in the aggregate on a consolidated basis except
for liens or encumbrances required or permitted hereby or by any Related
Agreement.
8.4 CONTINGENT LIABILITIES. Assume, guarantee, endorse or otherwise
become liable upon the obligations of any entity or corporation not a Subsidiary
in excess of Fifty Thousand Dollars ($50,000.00) in the aggregate on a
consolidated basis in the ordinary course of business, except by the endorsement
of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business.
8.5 CONSOLIDATION, MERGER OR CONVERSION. Merge, consolidate or convert
with or into any other corporation or entity, except that a Subsidiary of
Foilmark may be merged into Foilmark, each other or any other Subsidiary of
Foilmark on not less than ten (10) business days prior written notice to the
Bank; and, for the purposes of this Section 8.5, the acquisition of all or
substantially all of the assets, together with the assumption of all or
substantially all of the obligations and liabilities, of any corporation or
entity shall be deemed to be a consolidation with such corporation or entity.
8.6 LOANS, ADVANCES, INVESTMENTS. Purchase or otherwise acquire any
shares, ownership interest or obligations of, or make loans or advances to, or
investments in, any individual, entity or corporation other than any Subsidiary
of Foilmark, investments in direct obligations of the United States of America
or certificates of deposit (or similar investments) issued by the Bank or loans
or advances made in the ordinary course of business not in excess of Fifty
Thousand Dollars ($50,000.00) in the aggregate on a consolidated basis so long
as such loan or advance is unsecured.
8.7 [Intentionally Deleted.]
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8.8 DIVIDENDS. Declare, pay, authorize or make any Dividend, except
that (a) the Borrower may pay Dividends payable solely in capital stock of the
Borrower, and (b) the Borrower may pay Dividends so long as there shall not have
then occurred and be continuing any Event of Default and so long as such payment
does not result in a violation of the Financial Covenants set forth in Section
9.
8.9 TRANSACTIONS WITH SUBSIDIARIES AND AFFILIATES. Enter into, or be a
party to, any transaction with any Subsidiary or Affiliate (including, without
limitation, transactions involving the purchase, sale or exchange of property,
the rendering of services or the sale of stock) except in the ordinary course of
business pursuant to a valid resolution by the Board of Directors of the
Borrower in the exercise of their reasonable business judgment.
8.10 CHANGE OF NAME OR LOCATION. Change its name or conduct its
business under any trade name or style other than as hereinabove set forth or
change its executive offices, places of business or the present locations of its
assets or records relating thereto from those address(es) hereinabove set forth,
without the prior written consent of the Bank, which shall not be unreasonably
withheld.
8.11 SUBSIDIARIES, AFFILIATES. Acquire, form or dispose of any
Subsidiary or Affiliate (other than Affiliates who become such by virtue of
their ownership of stock or other interest in the Borrower) or acquire all or
substantially all or any material portion of the shares or other ownership
interest or assets of any other entity or corporation, without the prior written
consent of the Bank, which shall not be unreasonably withheld.
8.12 STRUCTURE, TAX CLASSIFICATION. Make or consent to a change in its
capital structure (not including, however (i) issuance of shares of capital
stock authorized but unissued as of the date hereof, or (ii) the issuance of
Indebtedness otherwise permitted under Section 8.2 hereof), or convert into any
other type of entity.
8.13 ACCOUNTING METHODS. Make or consent to a change in the Borrower's
method of accounting except as may be required by GAAP or the SEC.
8.14 USE OF PROPERTY. Other than in compliance with applicable law and
consistent with Borrower's current business practices, allow any business or
activity to be conducted on real property owned or occupied by it that uses,
manufactures, treats, stores or disposes of any toxic substances or hazardous
wastes which are prohibited or regulated under any public health, safety or
environmental law, rule, ordinance or regulation or contrary to the provisions
of any insurance policy.
SECTION 9. FINANCIAL COVENANTS
Unless the Bank consents in writing, the Borrower and each Guarantor
covenant and agree that until payment in full of the Notes and the complete
performance of all obligations hereunder and under any Related Agreement:
9.1 DEFINITIONS. Unless otherwise defined or specified herein, all
accounting terms shall be construed and all accounting determinations shall be
made in accordance with GAAP.
"CAPITAL ASSETS" means assets that in accordance with GAAP are required or
permitted to be depreciated or amortized on a balance sheet.
"CAPITAL EXPENDITURES" ("CAPEX") means, for any period, the aggregate amount of
all expenditures for the acquisition, construction, improvement, replacement or
purchase of Capital Assets and Intangible Assets, including, but not limited to,
expenditures under Capital Leases.
"CAPITAL LEASES" means capital leases, conditional sales contracts and other
title retention agreements relating to the purchase or acquisition of Capital
Assets.
"CASH TAXES" means actual taxes paid during the applicable period.
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"CURRENT MATURITY OF LONG-TERM DEBT" ("CMLTD") means the current maturity of
long-term Indebtedness paid during the applicable period, including, but not
limited to, amounts paid during such period under Capital Leases.
"CURRENT RATIO" means the ratio of Total Current Assets to the sum of (i) Total
Current Liabilities plus (ii) the aggregate outstanding principal amount of the
Line of Credit.
"DEBT SERVICE AND UNFINANCED CAPITAL EXPENDITURES COVERAGE RATIO" means, during
the applicable period, that quotient equal to (A) the aggregate of (i) EBITDA,
minus (ii) Unfinanced Capital Expenditures, minus (iii) Dividends minus (iv)
Cash Taxes; divided by (B) the sum of (i) Interest and (ii) Current Maturity of
Long-Term Debt; that is,
EBITDA - Unfinanced Capex - Dividends - Cash Taxes
--------------------------------------------------
Interest + CMLTD
"EARNINGS BEFORE INTEREST AND TAXES" ("EBIT") means, for the applicable period,
income from continuing operations before the payment of Interest and taxes
determined in accordance with GAAP.
"EARNINGS BEFORE INTEREST, TAXES, DEPRECIATION AND AMORTIZATION" ("EBITDA")
means, for the applicable period, income from continuing operations before the
payment of Interest and taxes plus depreciation and amortization determined in
accordance with GAAP.
"FUNDED DEBT" means Indebtedness which is not Subordinated Debt and which is
senior to all other Indebtedness.
"INTANGIBLE ASSETS" means assets that in accordance with GAAP are properly
classifiable as intangible assets, including, but not limited to, goodwill,
franchises, licenses, patents, trademarks, trade names and copyrights, and "soft
assets" such as assets due from officers, employees, stockholders, affiliates
and related parties.
"NET INCOME (NET LOSS)" means the net income (or net loss, expressed as a
negative number) for any period, after all taxes actually paid or accrued and
all expenses and other charges determined in accordance with GAAP.
"TANGIBLE CAPITAL BASE" means the sum of Tangible Net Worth plus Subordinated
Debt.
"TANGIBLE NET WORTH" means Total Assets minus the sum of (i) Intangible Assets
and (ii) Total Liabilities.
"TOTAL ASSETS" means total assets determined in accordance with GAAP.
"TOTAL CURRENT ASSETS" means total current assets determined in accordance with
GAAP.
"TOTAL CURRENT LIABILITIES" means total current Indebtedness determined in
accordance with GAAP.
"TOTAL LIABILITIES" means total Indebtedness determined in accordance with GAAP.
"TOTAL LIABILITIES TO TANGIBLE NET WORTH RATIO (SUBORDINATED DEBT)" means,
during the applicable period, that quotient equal to Total Liabilities minus
Subordinated Debt, divided by Tangible Net Worth plus Subordinated Debt, that
is,
Total Liabilities - Subordinated Debt
-------------------------------------
Tangible Net Worth + Subordinated Debt
UNFINANCED CAPITAL EXPENDITURES ("Unfinanced CAPEX") means Capital Expenditures
minus new long term Indebtedness issued during the applicable period plus the
aggregate amount of all long term Indebtedness prepaid during such period.
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9.2 CALCULATION OF FINANCIAL COVENANTS. The calculation of the
financial covenants set forth in this Section 9 shall be measured against the
consolidated financial statements required to be delivered to the Bank pursuant
to Section 9.1 of this Agreement on a consolidated basis.
All financial covenants set forth below are to be tested quarterly at
the end of each fiscal quarter.
9.3 CURRENT RATIO. The Borrower shall not permit its Current Ratio, to
be less than 1.5 to 1.0.
9.4 TANGIBLE CAPITAL BASE. The Borrower shall not permit its Tangible
Capital Base to be less than (a) $13,000,000 at June 30, 1999 (the "Initial
Threshold Amount"); (b) $13,250,000 at September 30, 1999; (c) $13,500,000 at
December 31, 1999; (d) $13,750,000 at March 31, 2000; (e) $14,000,000 at June
30, 2000; and (f) $250,000 plus the amount of the immediately preceding
Threshold Amount at the end of each subsequent fiscal quarter thereafter.
9.5 TOTAL LIABILITIES TO TANGIBLE NET WORTH RATIO (SUBORDINATED DEBT).
The Borrower shall not permit its Total Liabilities to Tangible Net Worth Ratio
(Subordinated Debt), to exceed 1.5 to 1.0 for the fiscal quarter ending June 30,
1999, and each quarter thereafter.
9.6 DEBT SERVICE AND UNFINANCED CAPITAL EXPENDITURES COVERAGE RATIO.
The Borrower shall not permit its Debt Service and Unfinanced Capital
Expenditures Coverage Ratio, on a consolidated basis, to be less than 1.25:1.0,
tested quarterly on a rolling four (4) quarter basis commencing September 30,
1999. For purposes of this covenant, EBITDA for the quarter ended September 30,
1999 shall exclude all one-time charges incurred in connection with the merger
of Foilmark and HoloPak.
9.7 FUNDED DEBT. The Borrower shall not permit the ratio of Funded Debt
to EBIDTA to exceed 3.5 to 1.0 at any time. This covenant shall be tested
quarterly on a rolling four (4) quarter basis commencing September 30, 1999. For
purposes of this covenant, EBIDTA for the quarter ended September 30, 1999 shall
exclude all one-time charges incurred in connection with the merger of the
Borrower and HoloPak.
SECTION 10. EVENTS OF DEFAULT; REMEDIES
If any one or more of the following "Events of Default" shall occur:
10.1 (a) Failure to make due payment of the principal of the Notes, or
in the payment of interest on the Notes or in the payment of any other
Indebtedness or liability owing by any Borrower or any Guarantor to the Bank,
now existing or hereinafter incurred, whether direct or contingent, or (b) any
Related Agreement ceases to be in full force and effect or any party to any
Related Agreement notifies the Bank that such party has no continuing obligation
to pay or perform in accordance with the terms of the applicable Related
Agreement; or
10.2 Failure by the Borrower or any Guarantor to observe or perform any
covenant contained in Sections 7, 8 or 9 hereof, or failure by the Borrower or
any Guarantor or any other party executing a Related Agreement to perform any
act, duty, obligation or other agreement contained in this Agreement, the Notes,
any Related Agreement or any other document, instrument or agreement and not
otherwise constituting an Event of Default hereunder, which failure to observe
or perform continues unremedied for fifteen (15) days; or
10.3 Any representation or warranty made by the Borrower or any
Guarantor herein, in any Related Agreement, or any other document, instrument or
agreement or any statement, certificate or other data furnished by the Borrower
or any Guarantor in connection herewith or with any Related Agreement, proves at
any time to be incorrect in any material respect; or
10.4 A judgment or judgments for the payment of money in excess of One
Hundred Thousand Dollars ($100,000.00) shall be rendered against the Borrower or
any Guarantor, and any such judgment shall remain unsatisfied and in effect for
any period of thirty (30) consecutive days without a stay of execution; or
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10.5 Any levy, seizure, attachment, garnishment, execution in excess of
One Hundred Thousand Dollars ($100,000.00) or similar process shall be issued or
levied on any of the Borrower's or any Guarantor's property, and such levy,
seizure, attachment, garnishment, execution, or similar process shall not be
dismissed, released or bonded to the satisfaction of the Bank within thirty (30)
days of its effective date; or
10.6 The Borrower or any Guarantor shall (a) apply for or consent to
the appointment of a receiver, conservator, trustee or liquidator of all or a
substantial part of any of its assets; (b) be unable, or admit in writing its
inability, to pay its debts as they mature; (c) file or permit the filing of any
petition, case, arrangement, reorganization, or the like under any insolvency or
bankruptcy law, or the adjudication of it as a bankrupt, or the making of an
assignment for the benefit of creditors or the consenting to any form of
arrangement for the satisfaction, settlement or delay of debt or the appointment
of a receiver for all or any part of its properties; or (d) take any action for
the purpose of effecting any of the foregoing; or
10.7 An order, judgment or decree shall be entered, or a case shall be
commenced, against the Borrower or any Guarantor without the application,
approval or consent of the Borrower or any Guarantor by or in any court of
competent jurisdiction, approving a petition or permitting the commencement of a
case seeking reorganization or liquidation of the Borrower or any Guarantor or
appointing a receiver, trustee, conservator or liquidator of the Borrower or any
Guarantor or of all or a substantial part of its assets and Borrower or any
Guarantor by any act, indicates its approval thereof, consent thereto, or
acquiescence therein, or such order, judgment, decree or case shall continue
unstayed and in effect for any period of sixty (60) consecutive days; or
10.8 The Borrower or any Guarantor shall dissolve or liquidate, or be
dissolved or liquidated, or cease to legally exist, or, merge, consolidate or
convert, or be merged, consolidated or converted with or into any other
corporation or entity except as specifically permitted by Section 8.5 hereof; or
10.9 The suspension of business for cause, other than strike, casualty
or other cause beyond the Borrower's control and in the event of such suspension
for cause beyond the Borrower's control, failure to resume operations as soon as
possible; or
10.10 Failure by the Borrower or any Guarantor to pay any other
Indebtedness for borrowed money, whether contingent or otherwise, which failure
continues beyond any applicable grace or cure periods, or if any such other
Indebtedness for borrowed money shall be accelerated, or if there exists any
event of default under any instrument, document or agreement governing,
evidencing or securing such other Indebtedness:
then, and in such event (other than an event described in Sections 10.6 or 10.7
above), the Bank may declare the then outstanding principal balance and all
interest accrued on the Notes and all applicable late charges and surcharges and
all other liabilities and obligations of the Borrower to the Bank to be
forthwith due and payable, whereupon the same shall become forthwith due and
payable, and the availability of the Line of Credit and the Equipment Loan shall
be deemed to be automatically terminated, all of the foregoing without
presentment or demand for payment, notice of non-payment, protest or any other
notice or demand of any kind, all of which are expressly waived by the Borrower.
Notwithstanding the foregoing, upon the occurrence of an event described in
Section 10.6 or Section 10.7 above, (i) the availability of the Line of Credit
and the Equipment Loan shall automatically terminate and (ii) the outstanding
principal balance and all interest accrued on the Notes and all applicable late
charges and surcharges and all other liabilities and obligations of the Borrower
to the Bank shall become automatically due and payable without presentment or
demand for payment, notice of non-payment, protest or any other notice or demand
of any kind, all of which are expressly waived by the Borrower.
SECTION 11. MISCELLANEOUS
11.1 WAIVERS.
(a) The Borrower hereby waives presentment, demand, notice, protest,
notice of acceptance of this Agreement, notices of advances made, credit
extended, collateral received or delivered or other action taken in reliance
hereon and all other demands and notices of any description. With respect to
this Agreement, the Related
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Agreements, the Notes and any collateral now or hereafter securing the Notes,
the Borrower assents to any extension or postponement of the time of payment or
any other indulgence, to any substitution, exchange or release of any collateral
now or hereafter securing the Notes, to the addition or release of any party or
person primarily or secondarily liable, to the acceptance of partial payments
thereon and the settlement, compromising or adjusting of any thereof, all in
such manner and at such time or times as the Bank may deem advisable. The Bank
shall have no duty as to the collection or protection of any collateral now or
hereafter securing the Notes or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof. The Bank may exercise its
rights with respect to any collateral without resorting or regard to other
collateral now or hereafter securing the Notes or sources of reimbursement for
liability. The Bank shall not be deemed to have waived any of its rights upon or
under any document or agreement relating to the liabilities of the Borrower, any
Guarantor or any collateral now or hereafter securing any such liabilities
unless such waiver be in writing and signed by the Bank. No delay or omission on
the part of the Bank in exercising any right shall operate as a waiver of such
right or any other right. A waiver on any one occasion shall not be construed as
a bar to or waiver of any right on any future occasion. All rights and remedies
of the Bank with respect to this Agreement, the Related Agreements, the Notes or
any collateral now or hereafter securing the Notes, whether evidenced hereby or
by any other instrument or document, shall be cumulative and may be exercised
singularly or concurrently.
(b) THE BANK AND THE BORROWER, MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY WAIVE ALL THE RIGHT TO A TRIAL BY JURY IN ANY
PROCEEDING HEREAFTER INSTITUTED BY OR AGAINST THE BANK OR THE BORROWER IN
RESPECT OF ANY CLAIM ARISING OUT OF, UNDER, OR IN CONNECTION WITH THE NOTES,
THIS AGREEMENT, OR ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING
OR SECURING THE NOTES (THE "LOAN DOCUMENTS"), OR ANY COURSE OF CONDUCT, COURSE
OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO ACCEPT THE NOTES AND
ENTER INTO THE LOAN TRANSACTION EVIDENCED BY THE NOTES AND THIS AGREEMENT.
(c) THE BORROWER ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS
AGREEMENT IS A PART IS A COMMERCIAL TRANSACTION.
11.2 NOTICES. All notices, requests or demands to or upon a party to
this Agreement shall be given or made by the other party hereto in writing, in
person, overnight courier or by depositing in the mail postage prepaid, return
receipt requested addressed to the addressee at the address set forth above or
to such other addresses as such addressee may have designated in writing to the
other party hereto.
11.3 EXPENSES; ADDITIONAL DOCUMENTS. The Borrower shall pay all taxes
levied or assessed upon the principal sum of the advances against the Bank and
all reasonable expenses arising out of the preparation, amendment, waiver,
modification, protection, collection and/or other enforcement of this Agreement,
the Related Agreements, the Notes, or of any collateral or security interest now
or hereafter granted to secure the Notes or mortgage, security interest or lien
granted under any Related Agreement and the Notes (including, without
limitation, reasonable counsels' fees and allocated reasonable costs of internal
counsel). The Borrower will permit and will cause each Guarantor to permit the
Bank or its agents to enter its property and appraise assets now or hereafter
constituting collateral at reasonable times from time to time and each shall
reimburse the Bank upon demand for the reasonable costs thereof. The Borrower
shall, and will cause each Guarantor to, from time to time, at its expense,
execute and deliver to the Bank all such other and further instruments and
documents and take or cause to be taken all such other and future action as the
Bank shall reasonably request in order to effect and confirm or vest more
securely all rights contemplated by this Agreement or any Related Agreement.
11.4 PLEDGE TO THE FEDERAL RESERVE. The Bank may at any time pledge all
or any portion of its rights under the Loan Documents including any portion of
the Notes to any of the twelve (12) Federal Reserve Banks organized under
Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No such pledge or
enforcement thereof shall release the Bank from its obligations under any of the
Loan Documents.
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11.5 REPLACEMENT OF DOCUMENTS. Upon receipt of an affidavit of an
officer of the Bank as to the loss, theft, destruction or mutilation of the
Notes or any Related Agreement which is not of public record and an agreement by
the Bank to indemnify the Borrower with respect to the issuance of a replacement
instrument, and, in the case of any such loss, theft, destruction or mutilation,
upon cancellation of such Notes or other Related Agreement, the Borrower will
issue, in lieu thereof, a replacement note or other agreement in the same
principal amount thereof and otherwise of like tenor.
11.6 INDEMNIFICATION. The Borrower agrees and will cause each Guarantor
to defend, indemnify and hold harmless the Bank and any participants, successors
or assigns of the Bank and the officers, directors, employees and agents of each
of them from and against any and all losses, claims, liabilities, asserted
liabilities, costs and expenses, including, without limitation, costs of
litigation and attorneys' fees (both the allocated costs of internal counsel and
outside counsel), incurred in connection with any and all claims or proceedings
for bodily injury, property damage, abatement or remediation, environmental
damage or impairment or any other injury or damage (including all foreseeable
and unforeseeable consequential damage) or any diminution in value of any real
property resulting from or relating, directly or indirectly, to (a) any release,
spilling, leaking, migrating, discharging, escaping, leaching, dumping or
disposing (a "Release") into the environment of any toxic substances or
hazardous wastes (actual or threatened), a threatened Release, the existence or
removal of any toxic substances or hazardous wastes on, into, from, through or
under any real property owned or operated by the Borrower or any Guarantor
(whether or not such Release was caused by Borrower, any Guarantor, a tenant,
subtenant, prior owner or tenant or any other person and whether or not the
alleged liability is attributable to the handling, storage, generation,
transportation or disposal of toxic substances or hazardous wastes or the mere
presence of such toxic substances or hazardous wastes) or (b) the breach or
alleged breach by Borrower and each Guarantor of any federal, state or local law
or regulation concerning public health, safety or the environment with respect
to any real property owned or operated by the Borrower or any Guarantor and/or
any business conducted thereon.
11.7 STAMP TAX. The Borrower will pay any stamp or other tax which
becomes payable in respect of the Notes, this Agreement or the Related
Agreements.
11.8 RELEASE OF COLLATERAL. If at any time while the Notes remain
outstanding, so long as there then exists no Event of Default or Default, the
Debt Service and Unfinanced Capital Expenditures Coverage Ratio, as set forth in
Section 9.6 hereof, shall exceed 1.75:1.0 for four (4) consecutive quarters, the
Bank agrees to release its lien on the assets of HoloPak other than its
equipment, which is and shall remain pledged to the Bank.
11.9 GOVERNING LAW. This Agreement, the Related Agreements and the
rights and obligations of the parties hereunder and thereunder shall be
construed and interpreted in accordance with the laws of the Commonwealth of
Massachusetts (the "Governing State") and any security interest granted by the
Borrower to the Bank shall be governed and construed in accordance with the laws
of the jurisdiction where such pledged collateral is located. The Borrower
agrees that the execution of this Agreement and Related Agreements and the
performance of the Borrower's obligations hereunder and thereunder shall be
deemed to have a situs in the Governing State and the Borrower shall be subject
to the personal jurisdiction of the courts of the Governing State with respect
to any action the Bank or its successors or assigns may commence hereunder or
thereunder. Accordingly, the Borrower hereby specifically and irrevocably
consents to the jurisdiction of the courts of the Governing State with respect
to all matters concerning this Agreement, the Related Agreements, the Notes or
the enforcement of any of the foregoing.
11.10 SURVIVAL OF REPRESENTATIONS. All representations, warranties,
covenants and agreements herein contained or made in writing in connection with
this Agreement shall survive the execution and delivery of the Notes, shall
continue in full force and effect until all amounts payable on account of the
Notes, the Related Agreements and this Agreement shall have been paid in full
and this Agreement has been terminated.
11.11 SEVERABILITY. If any provision of this Agreement shall to any
extent be held invalid or unenforceable, then only such provision shall be
deemed ineffective and the remainder of this Agreement shall not be affected.
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11.12 INTEGRATION; MODIFICATIONS. This Agreement is intended by the
parties as the final, complete and exclusive statement of the transactions
evidenced by this Agreement. In the event of any inconsistency between the
provisions of this Agreement and any Related Agreement, the provisions of this
Agreement shall control. No modification or amendment hereof shall be effective
unless the same shall be in writing and signed by the parties hereto.
11.13 ASSIGNMENTS. The Borrower may not assign any of its obligations
hereunder or under any Related Agreement to any person without the prior written
consent of the Bank. The Bank may, without notice to or consent of the Borrower
or any Guarantor, sell, assign, grant a participation in or otherwise dispose of
all or any portion of the Notes, this Agreement and the Related Agreements. In
connection therewith, the Bank may disclose to a prospective purchaser,
assignee, participant or transferee, any information possessed by the Bank
relating to the loan evidenced by the Notes, the Borrower, any Guarantor and the
collateral securing the loan. In the event of
(The remainder of this page intentionally left blank.)
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any sale, assignment or grant of any such participation by the Bank to a
participant, the Bank's obligation under this Agreement shall remain unchanged,
the Bank shall remain solely responsible for the performance thereof, and the
Borrower shall continue to deal solely and directly with the Bank in connection
with the Bank's rights and obligations under this Agreement. The Bank shall
notify the Borrower of the identity of any such participant, provided, however,
that the failure to provide such notice will not affect the validity of such
participation. The Borrower agrees that if amounts outstanding under this
Agreement, the Notes, or the Related Agreements, are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each participant shall be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement, the Notes, or the Related Agreements, to the same extent as if the
amount of its participating interested were owing directly to it as a lender
under this Agreement.
11.14 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the Borrower, the Bank, any permitted purchaser,
assignee, participant or transferee, and their respective successors and
assigns.
11.15 TERMINATION OF THIS AGREEMENT. This Agreement shall terminate
upon the written agreement of the parties hereto to the termination of any
obligation to the Bank to make advances under the Line of Credit or the
Equipment Loan and full and final payment of all amounts due hereunder, under
the Related Agreements and under the Notes.
11.16 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which, when
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed as a sealed instrument as of the
day and year first above written.
WITNESS: BORROWER:
FOILMARK, INC.
/s/ Jane E. Cohen By: /s/ Philip Leibel
- -------------------------------- --------------------------------
Name: Philip Leibel
--------------------------
Title: Vice President-Finance &
--------------------------
Chief Financial Officer
BANK:
FLEET NATIONAL BANK
By: /s/ James M. Clark
--------------------------------
Name: James M. Clark
Title: Vice President
-18-
<PAGE>
FLEET NATIONAL BANK AMENDED AND RESTATED
COMMERCIAL LINE OF
CREDIT PROMISSORY NOTE
$10,000,000.00 Date: August 6, 1999
For value received, Foilmark, Inc., a Delaware corporation, with an address at 5
Malcolm Hoyt Drive, Newburyport, Massachusetts (the "Borrower") hereby promises
to pay to the order of FLEET NATIONAL BANK, a national banking association
organized and existing under the United States of America (the "Bank"), at the
office of the Bank located at One Federal Street, Boston, Massachusetts, or at
such other address as the holder hereof may designate, the principal sum of TEN
MILLION DOLLARS ($10,000,000.00), or the aggregate unpaid principal amount of
all advances made by the Bank to the Borrower pursuant to the terms of the
Agreement (as defined below), whichever is less, in lawful money of the United
States of America in immediately available funds. If any advances are made
during the period from the date hereof until December 31, 2002 (as such date may
be extended, in writing from time to time, in the Bank's sole and absolute
discretion, the "Termination Date"), unless an Event of Default (as defined in
the Agreement) occurs, the Borrower may borrow, repay and reborrow; provided,
however, that all outstanding principal plus accrued and unpaid interest shall
be paid in full on the Termination Date.
The outstanding principal of all advances shall accrue interest, at the
Borrower's option, from time to time, at either (a) a variable per annum rate of
interest equal to the Prime Rate, as defined below (the "Prime Rate Loan"); or
(b) a rate equal to the London Interbank Offered Rate (LIBOR), as defined below,
plus the percentage corresponding thereto below per annum fixed against the
prevailing LIBOR for the Interest Period as selected by the Borrower of one
month, two months or three months; provided, however, that for any such advance
to qualify for the LIBOR Rate of interest, as elected by the Borrower, such
advance must be in the minimum amount of One Hundred Thousand Dollars
($100,000.00) (the "LIBOR Loan").
The interest rate hereunder shall be calculated based upon the
Borrower's performance of the ratio of Funded Debt to EBITDA, each as defined in
the Amended and Restated Credit Agreement dated of even date between the
Borrower and the Bank, as amended from time to time (the "Agreement") as
follows:
<TABLE>
<CAPTION>
- ------------------------------ ------------------- ------------------
TOTAL FUNDED PRIME PLUS LIBOR PLUS
DEBT/ EBIDTA
- ------------------------------ ------------------- ------------------
<S> <C> <C>
greater than or equal to 0% 2.0%
3.0:1.0
- ------------------------------ ------------------- ------------------
greater than or equal to 0% 1.75%
2.5:1.0 but less than 3.0:1.0
- ------------------------------ ------------------- ------------------
greater than or equal to 0% 1.5%
2.0:1.0 but less than 2.5:1.0
- ------------------------------ ------------------- ------------------
less than 2.0:1.0 0% 1.25%
- ------------------------------ ------------------- ------------------
</TABLE>
For any principal amount due under the Note, from time to time, with
respect to which the LIBOR Rate has not been designated in accordance with the
provisions of this paragraph, interest shall accrue at the Prime Rate.
For the purposes of this Note, the following terms shall have the
following meaning:
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, or other day on
which commercial banks in the Commonwealth of Massachusetts are authorized or
required to close under the laws of the Commonwealth of Massachusetts and, if
the applicable day relates to a LIBOR Loan or an Interest Period for a LIBOR
Loan, the day
<PAGE>
on which dealings in dollar deposits are also carried on in the London interbank
market and banks are open for business in London.
LONDON INTERBANK OFFERED RATE ("LIBOR") shall mean, as applicable to any LIBOR
Loan, the rate per annum (rounded upward, if necessary, to the nearest 1/32 of
one percent) as determined on the basis of the offered rates for deposits in
U.S. dollars, for a period of time comparable to such LIBOR Loan which appears
on the Telerate page 3750 as of 11:00 a.m. London time on the day that is two
(2) Business Days preceding the first day of such LIBOR Loan; provided, however,
if the rate described above does not appear on the Telerate System on any
applicable interest determination date, the LIBOR rate shall be the rate
(rounded upwards as described above, if necessary), for deposits in dollars for
a period substantially equal to the interest period on the Reuters Page "LIBO"
(or such other page as may replace the LIBO Page on that service for the purpose
of displaying such rates), as of 11:00 a.m. (London time), on the day that is
two (2) Business Days prior to the beginning of such interest period. If both
the Telerate and Reuters systems are unavailable, then the rate for that date
will be determined on the basis of the offered rates for deposits in U.S.
dollars for a period of time comparable to such LIBOR Loan which are offered by
four major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two Business Days preceding the first day of
such LIBOR Loan as selected by the Bank. The principal London office of each of
the four major London banks will be requested to provide a quotation of its U.S.
dollar deposit offered rate. If at least two such quotations are provided, the
rate for that date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in U.S. dollars to leading
European banks for a period of time comparable to such LIBOR Loan offered by
major banks in New York City at approximately 11:00 a.m. New York City time, on
the day that is two Business Days preceding the first day of such LIBOR Loan. In
the event that the Bank is unable to obtain any such quotation as provided
above, it will be deemed that LIBOR pursuant to a LIBOR Loan cannot be
determined. In the event that the Board of Governors of the Federal Reserve
System shall impose a Reserve Percentage with respect to LIBOR deposits of the
Bank, then for any period during which such Reserve Percentage shall apply,
LIBOR shall be equal to the amount determined above divided by an amount equal
to 1 minus the Reserve Percentage.
"LIBOR RATE" means a fixed interest rate equal to LIBOR plus the corresponding
percentage per annum.
"PRIME RATE" means the variable per annum rate of interest so designated from
time to time by the Bank as its prime rate. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate being charged to any
borrower. Changes in the rate of interest resulting from changes in the Prime
Rate shall take effect immediately without notice or demand of any kind.
"INTEREST PERIOD" means with respect to any LIBOR Loan, any period commencing on
the date such LIBOR Loan is made or the date of a subsequent interest rate
selection, as the case may be, and ending one month, two months or three months
later, as the Borrower may request, provided that: (y) any Interest Period which
would otherwise end on a day which is not a Business Day shall end on the next
preceding or succeeding Business Day as is the custom in the London interbank
market to which such advance relates; (z) each Interest Period which commences
before and would otherwise end after the Termination Date shall end on the
Termination Date.
To the extent that interest is accruing on all or any portion of the
outstanding principal hereunder pursuant to the Prime Rate, interest on such
Prime Rate Loan shall be payable at the rate set forth above in consecutive
monthly installments commencing on September 1, 1999, and continuing thereafter
on the same day of each succeeding month and on the Termination Date. To the
extent that interest is accruing on all or any portion of the outstanding
principal hereunder pursuant to the LIBOR Rate, interest on such LIBOR Loan
shall be payable hereunder on the last day of the Interest Period applicable
thereto.
Interest shall be computed on the basis of a three hundred sixty
(360)-day year and actual days elapsed. Upon default or after maturity or after
judgment has been rendered on this Note, the Borrower's right to select pricing
options shall cease and the unpaid principal of all advances shall, at the
option of the Bank, accrue interest at a rate which is equal to two (2)
percentage points per annum greater than the interest rate then in effect
hereunder.
-2-
<PAGE>
If the entire amount of any required principal and/or interest is not
paid in full within ten (10) days after the same is due, the Borrower shall pay
to the Bank a late fee equal to two percent (2%) of the required payment.
The Borrower may prepay, in whole or in part, at any time, without
penalty or premium any Prime Rate Loan. The Borrower may prepay a LIBOR Loan
only upon at least three (3) Business Days prior written notice to the Bank
(which notice shall be irrevocable), and any such prepayment shall occur only on
the last day of the Interest Period for such LIBOR Loan. The Borrower shall pay
to the Bank, immediately upon request of the Bank, such amount as shall be
sufficient (in the reasonable opinion of the Bank) to compensate it for any
loss, cost, or expense incurred as a result of: (i) any payment of a LIBOR Loan,
whether as a result of acceleration or otherwise, on a date other than the last
day of the Interest Period for such Loan; (ii) the conversion prior to the last
day of an applicable Interest Period into a Prime Rate Loan; (iii) any failure
by the Borrower to borrow a LIBOR Loan on the date specified by Borrower's
written notice; (iv) any failure by the Borrower to pay a LIBOR Loan on the date
for payment specified in the Borrower's written notice. Without limiting the
foregoing, the Borrower shall pay to the Bank a "yield maintenance fee" in an
amount computed as follows: The current rate for United States Treasury
securities (bills on a discounted basis shall be converted to a bond equivalent)
with a maturity date closest to the term chosen pursuant to the Fixed Rate
Election as to which the prepayment is made, shall be subtracted from the LIBOR
in effect at the time of prepayment. If the result is zero or a negative number,
there shall be no yield maintenance fee. If the result is a positive number,
then the resulting percentage shall be multiplied by the amount of the principal
balance being prepaid. The resulting amount shall be divided by 360 and
multiplied by the number of days remaining in the term chosen pursuant to the
Fixed Rate Election as to which the prepayment is made. Said amount shall be
reduced to present value calculated by using the above referenced United States
Treasury securities rate and the number of days remaining in the term chosen
pursuant to the Fixed Rate Election as to which prepayment is made. The
resulting amount shall be the yield maintenance fee due to the Bank upon the
payment of a LIBOR Loan. Each reference in this paragraph to "Fixed Rate
Election" shall mean the election by Borrower of the LIBOR Rate. If by reason of
an Event of Default, the Bank elects to declare the Note to be immediately due
and payable, then any yield maintenance fee with respect to a LIBOR Loan shall
become due and payable in the same manner as though the Borrower had exercised
such right of prepayment.
In the case of a LIBOR Loan, each request for an advance shall be in
writing and shall be made at least three (3) Business Days prior to the LIBOR
Loan. Each request for an advance hereunder shall specify the date of such loan,
the type of loan, and, if a LIBOR Loan, the duration of the Interest Period
applicable thereto.
If the Bank determines that the effect of an applicable law or
government regulation, guideline or order or the interpretation thereof by any
governmental authority charged with the administration thereof (such as, for
example, a change in official reserve requirements which the Bank is required to
maintain in respect of loans or deposits or other funds procured for funding
such loans) is to increase the cost to the Bank of making or continuing a LIBOR
Loan hereunder or to reduce the amount of any payment of principal or interest
receivable by the Bank thereon, then the Borrower shall pay to the Bank on
demand such additional amounts as the Bank may determine in its sole and
absolute discretion, to be required to compensate the Bank for such additional
costs or reduction. Any additional payment under this section will be computed
from the effective date at which such additional costs have to be borne by the
Bank. A certificate as to any additional amounts payable pursuant to this
section setting forth the basis and method of determining such amounts shall be
conclusive, absent manifest error, as to the determination by the Bank set forth
therein if made reasonably and in good faith. The Borrower shall pay any and all
amounts so certified to it by the Bank within ten (10) days of receipt of such
certificate.
In the event, and on each occasion, that on the day two (2) Business
Days prior to the commencement of any Interest Period for a LIBOR Loan, the Bank
shall have determined (i) that dollar deposits in the amount of the requested
principal amount of such LIBOR Loan are not generally available in the London
interbank market, (ii) that the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to the Bank of making or
maintaining such LIBOR Loan during such Interest Period, or (iii) that
reasonable means do not exist for ascertaining the LIBOR rate, the Bank shall,
as soon as practicable thereafter, give written notice or telex notice of such
determination to the Borrower. In the event of any such determination, until the
circumstances giving rise to such notice no longer exist, no LIBOR Loan will be
made hereunder. Each determination by the Bank hereunder shall be conclusive
absent manifest error.
-3-
<PAGE>
Notwithstanding anything to the contrary contained herein, if any
change in any law or regulation or with the administration or interpretation
thereof shall make it unlawful for the Bank to make or maintain any LIBOR Loan,
then, by written notice to the Borrower, the Bank may: (i) declare that LIBOR
Loans will not thereafter be made by the Bank hereunder, whereupon the Borrower
shall be prohibited from requesting LIBOR Loans from the Bank hereunder unless
such declaration is subsequently withdrawn; and (ii) require that all
outstanding LIBOR Loans made by it be converted to Prime Rate Loans, in which
event (x) all such LIBOR Loans shall be automatically converted into Prime Rate
Loans as of the effective date of such notice as provided for herein, and (y)
all payments and prepayments of principal which would otherwise be applied to
repay the converted LIBOR Loans shall instead be applied to repay the Prime Rate
Loans resulting from the conversion of such LIBOR Loans. For purposes of this
section, a notice to the Borrower by the Bank shall be effective on the day of
receipt by the Borrower.
If, at any time, the aggregate principal amount of all advances
outstanding under this Note shall exceed the maximum amount permitted under this
Note and the Agreement (as defined below), the Borrower shall immediately prepay
so much of the outstanding principal balance, together with accrued interest on
the portion of principal so prepaid, as shall be necessary in order that the
unpaid principal balance, after giving effect to such prepayments, shall not be
in excess of the maximum amount permitted by this Note and the Agreement.
All payments, including any prepayments as set forth above, shall, at
the option of the Bank, be applied first to the payment of all costs and
expenses incurred by the Bank arising out of the loan transaction evidenced by
this Note, which have not been paid or reimbursed to the Bank, then to accrued
interest on the unpaid principal of all advances due under this Note, and the
balance on account of the principal of all advances due under this Note. All
payments shall be in lawful money of the United States of America in immediately
available funds. If this Note or any payment hereunder becomes due on a day
which is not a Business Day, the due date of this Note or payment shall be
extended to the next succeeding Business Day, and such extension of time shall
be included in computing interest and fees in connection with such payment.
Upon the happening of any Event of Default, as defined in the
Agreement, other than an Event of Default described in Sections 10.6 or 10.7 of
the Agreement, the Bank may (i) declare the then principal of all advances and
all interest accrued thereon and all applicable late charges and surcharges and
all other liabilities and obligations of the Borrower to the Bank to be
immediately due and payable, whereupon the same shall become immediately due and
payable and/or (ii) terminate any obligation of the Bank to make advances
hereunder and under the Agreement, all of the foregoing without presentment or
demand for payment, notice of non-payment, protest or any other demand or notice
of any kind, all of which are expressly waived by the Borrower. Failure to
exercise such options shall not constitute a waiver of the right to exercise the
same in the event of any subsequent default. Notwithstanding the foregoing, upon
the occurrence of an Event of Default described in Section 10.6 or Section 10.7
of the Agreement, (A) any obligation of the Bank to advance hereunder shall
automatically terminate, and (B) the outstanding principal balance of all
advances and all interest accrued thereon and all applicable late charges and
surcharges and all other liabilities and obligations of the Borrower to the Bank
shall become automatically due and payable without presentment or demand for
payment, notice of non-payment, protest or any other demand or notice of any
kind, all of which are expressly waived by the Borrower.
This Note has been executed and delivered in accordance with the
Agreement incorporated herein by reference, which sets forth further rights of
the Bank and duties of the Borrower and any guarantor, endorser or surety of any
obligation of the Borrower to the Bank with respect hereto. All advances made by
the Bank to the Borrower and payments of principal and interest received by the
Bank shall be evidenced by notation on the books and records of the Bank which
shall be conclusive as to the amounts owing to the Bank pursuant to the Note,
absent manifest error; provided, however, that the failure of the Bank to make
any such notation with respect to any advance or principal or interest payment
shall not limit or otherwise affect the obligations of the Borrower hereunder.
The Borrower agrees to pay all taxes levied or assessed upon the
outstanding principal against any holder of this Note and to pay all costs,
including reasonable attorneys' fees (including the costs and expenses allocated
to
-4-
<PAGE>
the Bank's internal Legal Department), costs relating to the appraisal and/or
valuation of assets and all other costs and expenses incurred in the collection,
protection, preservation, defense, or enforcement of this Note or in any
litigation arising out of the transactions of which this Note is apart.
The Borrower hereby grants to the Bank and any Participant (as
hereafter defined) a lien, security interest, and right of set off as security
for all of the Borrower's liabilities and obligations to the Bank, whether now
existing or hereafter arising, upon and against all the deposits, credits,
collateral and property of the Borrower now or hereafter in the possession,
custody, or control of the Bank and any Participant (as hereafter defined), any
entity under the control of Fleet Financial Group, Inc., or any Participant (as
hereafter defined) or in transit to any of them. At any time, without demand or
notice, the Bank may set off the same or any part thereof and apply the same to
any liability or obligation of the Borrower even though unmatured and regardless
of the adequacy of any other collateral securing the loan evidenced hereby. TO
THE EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE
ITS REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES
PRIOR TO EXERCISING ITS RIGHT OF SET OFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY VOLUNTARILY, INTENTIONALLY, AND
IRREVOCABLY WAIVED.
THE BANK AND THE BORROWER MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY
INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS NOTE, ANY DOCUMENT,
INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THIS NOTE, INCLUDING
THE AFORESAID AGREEMENT (THE "LOAN DOCUMENTS") OR ANY COURSE OF CONDUCT, COURSE
OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO ACCEPT THIS NOTE AND
ENTER INTO THE LOAN TRANSACTION EVIDENCED BY THIS NOTE.
THE BORROWER ACKNOWLEDGES THAT THE ADVANCES EVIDENCED BY THIS NOTE ARE
PART OF A COMMERCIAL TRANSACTION.
All agreements between the Borrower and the Bank are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Bank for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof; provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest,
then this Note shall be governed by such new law as of its effective date. In
this regard, it is expressly agreed that it is the intent of the Borrower and
the Bank in the execution, delivery and acceptance of this Note to contract in
strict compliance with the laws of the Commonwealth of Massachusetts from time
to time in effect. If, under or from any circumstances whatsoever, fulfillment
of any provision hereof at the time of performance of such provision shall be
due, shall involve transcending the limit of such validity prescribed by
applicable law, then the obligation to be fulfilled shall automatically be
reduced to the limits of such validity, and if under or from circumstances
whatsoever the Bank should ever receive as interest an amount which would exceed
the highest lawful rate, such amount which would be excessive interest shall be
applied to the reduction of the principal balance evidenced hereby and not to
the payment of interest. This provision shall control every other provision of
all agreements between the Borrower and the Bank.
The Bank may at any time pledge all or any portion of its rights under
the Loan Documents including any portion of this Note to any of the twelve (12)
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341. No such pledge or enforcement thereof shall release the Bank
from its obligations under any of the Loan Documents.
The Bank shall have the unrestricted right at any time and from time to
time, and without the consent of or notice to the Borrower, to grant to one or
more banks or other financial institutions (each, a "Participant") participating
interests in the Bank's obligation to lend hereunder and/or any or all of the
loans held by the Bank
-5-
<PAGE>
hereunder. In the event of any such grant by the Bank of a participating
interest to a Participant whether or not upon notice to the Borrower, the Bank
shall remain responsible for the performance of its obligations hereunder and
the Borrower shall continue to deal solely and directly with the Bank in
connection with the Bank's rights and obligations hereunder. The Bank may
furnish any information concerning the Borrower in its possession from time to
time to prospective Participants, provided that the Bank shall require any such
prospective Participant to agree in writing to maintain the confidentiality of
such information.
This Note shall be the joint and several obligation of each Borrower
and each provision of this Note shall apply to each and all jointly and
severally and to the property and liabilities of each and all. The Borrower
waives diligence, demand, presentment for payment, notice of nonpayment, protest
and notice of protest, and notice of any renewals or extensions of this Note,
and all rights under any statute of limitations, and agrees that the time for
payment of this Note may extended at the Bank's sole discretion, without
impairing the Borrower's liability hereon, and the Borrower further consents to
the release of all or any part of the security for the payment hereof at the
discretion of the Bank, or the release of any party liable for this obligation
without affecting the liability of the other parties hereto. Any delay on the
part of the Bank in exercising any right hereunder shall not operate as a waiver
of any such right, and any waiver granted for one occasion shall not operate as
a waiver in the event of any subsequent default.
If any provision of this Note shall, to any extent, be held invalid or
unenforceable, then only such provision shall be deemed ineffective and the
remainder of this Note shall not be affected.
This Note is an amendment and restatement of that certain Second
Amended and Restated Revolving Credit Note dated June 30, 1997 previously
executed by Foilmark, Inc., a Delaware corporation, Foilmark Manufacturing
Corporation, a Delaware corporation, Kensol-Olsenmark, Inc., a Delaware
corporation, West Foils, Inc., a California corporation, and Imtran Foilmark,
Inc., a Delaware corporation (collectively, the "Companies") in favor of the
Bank in the aggregate principal amount of Ten Million Dollars ($10,000,000.00)
(the "Second Amended Note"), which Second Amended Note amended, restated and
consolidated (a) that certain Amended and Restated Revolving Credit Note dated
August 21, 1995 previously executed by the Companies in favor of Shawmut Bank,
N.A., the predecessor to the Bank, in the aggregate principal amount of
$2,000,000.00 (the "2,000,000.00 Note"), and (b) that certain Amended and
Restated Revolving Credit Note dated August 21, 1995 previously executed by the
Companies in favor of Chemical Bank in the aggregate principal amount of
$4,000,000.00 (the "$4,000,000.00 Note) and thereafter assigned to the Bank by
The Chase Manhattan Bank. This amendment and restatement of the Amended Note
shall not be construed to limit in any way any security given for the Amended
Note, the $2,000,000.00 Note or the $4,000.00 Note, all of which is subsumed
under this Note.
This Note shall bind the heirs, executors, administrators, successors
and assigns of the Borrower and shall inure to the benefit of the Bank, its
successors and assigns and any Participant.
-6-
<PAGE>
This Note is executed as a sealed instrument and shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
WITNESS: Foilmark, Inc.
/s/Jane E. Cohen By: /s/ Philip Leibel
- ----------------------------- ------------------------------------
Name: Philip Leibel
Title: Vice President-Finance
& Chief Financial Officer
<PAGE>
FLEET NATIONAL BANK COMMERCIAL TERM
PROMISSORY NOTE
$5,000,000.00 Date: August 6, 1999
For value received, FOILMARK, INC., a Delaware corporation with an
address at 5 Malcolm Hoyt Drive, Newburyport, Massachusetts (the "Borrower")
hereby promises to pay to the order of FLEET NATIONAL BANK, a national banking
association (the "Bank"), at the office of the Bank located at One Federal
Street, Boston, Massachusetts 02110, or at such other address as the holder
hereof may designate, the principal sum of FIVE MILLION DOLLARS ($5,000,000.00)
in lawful money of the United States of America in immediately available funds.
The outstanding principal hereunder shall accrue interest, at the
Borrower's option at (a) a variable per annum rate of interest equal to the
Prime Rate, as defined below (the "Prime Rate Loan"); or (b) a rate equal to the
London Interbank Offered Rate (LIBOR), as defined below, plus the percentage
corresponding thereto below per annum fixed against the prevailing LIBOR for the
Interest Period as selected by the Borrower of one month, two months, or three
months; provided, however, that for any portion of principal hereunder to
qualify for the LIBOR Rate of interest, as elected by the Borrower, such portion
of principal must be in the minimum amount of One Hundred Thousand Dollars
($100,000.00) (the "LIBOR Loan"). The interest rate hereunder shall be
calculated based upon the Borrower's performance of the ratio of Funded Debt to
EBITDA, each as defined in the Amended and Restated Credit Agreement dated of
even date between the Borrower and the Bank, as amended from time to time (the
"Agreement") as follows:
<TABLE>
<CAPTION>
- ------------------------------ ------------------ -----------------
TOTAL FUNDED PRIME PLUS LIBOR PLUS
DEBT/ EBIDTA
- ------------------------------ ------------------ -----------------
<S> <C> <C>
greater than or equal to 0% 2.0%
3.0:1.0
- ------------------------------ ------------------ -----------------
greater than or equal to 0% 1.75%
2.5:1.0 but less than 3.0:1.0
- ------------------------------ ------------------ -----------------
greater than or equal to 0% 1.5%
2.0:1.0 but less than 2.5:1.0
- ------------------------------ ------------------ -----------------
less than 2.0:1.0 0% 1.25%
- ------------------------------ ------------------ -----------------
</TABLE>
For any principal amount due under the Note, from time to time, with respect to
which the LIBOR Rate has not been designated in accordance with the provisions
of this paragraph, interest shall accrue at the Prime Rate.
The outstanding principal hereunder shall be payable in the total
number of fifty nine (59) payments of principal and interest, with each of the
first fifty eight (58) payments to consist of principal in the amount of
$59,528.81 plus accrued interest calculated as set forth below on the unpaid
balance and the final payment to consist of the entire unpaid principal balance
plus accrued interest thereon. The first of said payments of principal and
interest is to be made on September 1, 1999, and the remainder of said payments
are payable on the corresponding date of each succeeding month, with the final
payment of all unpaid principal and accrued interest, to be made on June 30,
2004.
-1-
<PAGE>
For the purposes of this Note, the following terms shall have the
following meaning:
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, or other day on
which commercial banks in the Commonwealth of Massachusetts are authorized or
required to close under the laws of the Commonwealth of Massachusetts and, if
the applicable day relates to a LIBOR Loan or an Interest Period for a LIBOR
Loan, the day on which dealings in dollar deposits are also carried on in the
London interbank market and banks are open for business in London.
LONDON INTERBANK OFFERED RATE ("LIBOR") shall mean, as applicable to any LIBOR
Loan, the rate per annum (rounded upward, if necessary, to the nearest 1/32 of
one percent) as determined on the basis of the offered rates for deposits in
U.S. dollars, for a period of time comparable to such LIBOR Loan which appears
on the Telerate page 3750 as of 11:00 a.m. London time on the day that is two
(2) Business Days preceding the first day of such LIBOR Loan; provided, however,
if the rate described above does not appear on the Telerate System on any
applicable interest determination date, the LIBOR rate shall be the rate
(rounded upwards as described above, if necessary), for deposits in dollars for
a period substantially equal to the interest period on the Reuters Page "LIBO"
(or such other page as may replace the LIBO Page on that service for the purpose
of displaying such rates), as of 11:00 a.m. (London time), on the day that is
two (2) Business Days prior to the beginning of such interest period. If both
the Telerate and Reuters systems are unavailable, then the rate for that date
will be determined on the basis of the offered rates for deposits in U.S.
dollars for a period of time comparable to such LIBOR Loan which are offered by
four major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two Business Days preceding the first day of
such LIBOR Loan as selected by the Bank. The principal London office of each of
the four major London banks will be requested to provide a quotation of its U.S.
dollar deposit offered rate. If at least two such quotations are provided, the
rate for that date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in U.S. dollars to leading
European banks for a period of time comparable to such LIBOR Loan offered by
major banks in New York City at approximately 11:00 a.m. New York City time, on
the day that is two Business Days preceding the first day of such LIBOR Loan. In
the event that the Bank is unable to obtain any such quotation as provided
above, it will be deemed that LIBOR pursuant to a LIBOR Loan cannot be
determined. In the event that the Board of Governors of the Federal Reserve
System shall impose a Reserve Percentage with respect to LIBOR deposits of the
Bank, then for any period during which such Reserve Percentage shall apply,
LIBOR shall be equal to the amount determined above divided by an amount equal
to 1 minus the Reserve Percentage.
"LIBOR RATE" means a fixed interest rate equal to LIBOR plus the corresponding
percentage per annum.
"PRIME RATE" means the variable per annum rate of interest so designated from
time to time by the Bank as its prime rate. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate being charged to any
borrower. Changes in the rate of interest resulting from changes in the Prime
Rate shall take effect immediately without notice or demand of any kind.
"INTEREST PERIOD" means with respect to any LIBOR Loan, any period commencing on
the date such LIBOR Loan is made or the date of a subsequent interest rate
selection, as the case may be, and ending one month, two months or three months
later, provided that: (y) any Interest Period which would otherwise end on a day
which is not a Business Day shall end on the next preceding or succeeding
Business Day as is the custom in the London interbank market to which such LIBOR
Loan relates; (z) each Interest Period which commences before and would
otherwise end after the Maturity Date shall end on the Maturity Date.
To the extent that interest is accruing on all or any portion of the
outstanding principal hereunder pursuant to the Prime Rate, interest on such
Prime Rate Loan shall be payable at the rate set forth above in consecutive
monthly installments commencing on August 1, 1999 and continuing thereafter on
the same day of each succeeding month and on the Maturity Date. To the extent
that interest is accruing on all or any portion of the outstanding principal
hereunder pursuant to the LIBOR Rate.
-2-
<PAGE>
Interest shall be computed on the basis of a three hundred sixty
(360)-day year and actual days elapsed. Upon default or after maturity or after
judgment has been rendered on this Note, the Borrower's right to select pricing
options shall cease and the unpaid principal of this Note shall, at the option
of the Bank, accrue interest at a rate which is equal to two (2) percentage
points per annum greater than the interest rate then in effect hereunder.
If the entire amount of any required principal and/or interest is not
paid in full within ten (10) days after the same is due, the Borrower shall pay
to the Bank a late fee equal to two percent (2%) of the required payment.
The Borrower may prepay, in whole or in part, at any time, without
penalty or premium any Prime Rate Loan. The Borrower may prepay a LIBOR Loan
only upon at least three (3) Business Days prior written notice to the Bank
(which notice shall be irrevocable), and any such prepayment shall occur only on
the last day of the Interest Period for such LIBOR Loan. The Borrower shall pay
to the Bank, immediately upon request of the Bank, such amount as shall be
sufficient (in the reasonable opinion of the Bank) to compensate it for any
loss, cost, or expense incurred as a result of: (i) any payment of a LIBOR Loan,
whether as a result of acceleration or otherwise, on a date other than the last
day of the Interest Period for such Loan; (ii) the conversion prior to the last
day of an applicable Interest Period into a Prime Rate Loan; (iii) any failure
by the Borrower to borrow a LIBOR Loan on the date specified by Borrower's
written notice; (iv) any failure by the Borrower to pay a LIBOR Loan on the date
for payment specified in the Borrower's written notice. Without limiting the
foregoing, the Borrower shall pay to the Bank a "yield maintenance fee" in an
amount computed as follows: The current rate for United States Treasury
securities (bills on a discounted basis shall be converted to a bond equivalent)
with a maturity date closest to the term chosen pursuant to the Fixed Rate
Election as to which the prepayment is made, shall be subtracted from the
"LIBOR" in effect at the time of prepayment. If the result is zero or a negative
number, there shall be no yield maintenance fee. If the result is a positive
number, then the resulting percentage shall be multiplied by the amount of the
principal balance being prepaid. The resulting amount shall be divided by 360
and multiplied by the number of days remaining in the term chosen pursuant to
the Fixed Rate Election as to which the prepayment is made. Said amount shall be
reduced to present value calculated by using the above referenced United States
Treasury securities rate and the number of days remaining in the term chosen
pursuant to the Fixed Rate Election as to which prepayment is made. The
resulting amount shall be the yield maintenance fee due to the Bank upon the
payment of a LIBOR Loan. Each reference in this paragraph to "Fixed Rate
Election" shall mean the election by Borrower of the LIBOR Rate. If by reason of
an Event of Default, the Bank elects to declare the Note to be immediately due
and payable, then any yield maintenance fee with respect to a LIBOR Loan shall
become due and payable in the same manner as though the Borrower had exercised
such right of prepayment.
In the case of a LIBOR Loan , each request shall be in writing and
shall be made at least three (3) Business Days prior to the LIBOR Loan. Each
request for a LIBOR Loan hereunder shall specify the date of such loan, the type
of loan, and, if a LIBOR Loan, the duration of the Interest Period applicable
thereto.
If the Bank determines that the effect of an applicable law or
government regulation, guideline or order or the interpretation thereof by any
governmental authority charged with the administration thereof (such as, for
example, a change in official reserve requirements which the Bank is required to
maintain in respect of loans or deposits or other funds procured for funding
such loans) is to increase the cost to the Bank of making or continuing a LIBOR
Loan hereunder or to reduce the amount of any payment of principal or interest
receivable by the Bank thereon, then the Borrower shall pay to the Bank on
demand such additional amounts as the Bank may determine in its sole and
absolute discretion, to be required to compensate the Bank for such additional
costs or reduction. Any additional payment under this section will be computed
from the effective date at which such additional costs have to be borne by the
Bank. A certificate as to any additional amounts payable pursuant to this
section setting forth the basis and method of determining such amounts shall be
conclusive, absent manifest error, as to the determination by the Bank set forth
therein if made reasonably and in good faith. The Borrower shall pay any and all
amounts so certified to it by the Bank within ten (10) days of receipt of such
certificate.
In the event, and on each occasion, that on the day two (2) Business
Days prior to the commencement of any Interest Period for a LIBOR Loan, the Bank
shall have determined (i) that dollar deposits in the amount of the requested
principal amount of such LIBOR Loan are not generally available in the London
interbank market, (ii) that the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to the Bank
-3-
<PAGE>
of making or maintaining such LIBOR Loan during such Interest Period, or (iii)
that reasonable means do not exist for ascertaining the LIBOR rate, the Bank
shall, as soon as practicable thereafter, give written notice or telex notice of
such determination to the Borrower. In the event of any such determination,
until the circumstances giving rise to such notice no longer exist, no LIBOR
Loan will be made hereunder. Each determination by the Bank hereunder shall be
conclusive absent manifest error.
Notwithstanding anything to the contrary contained herein, if any
change in any law or regulation or with the administration or interpretation
thereof shall make it unlawful for the Bank to make or maintain any LIBOR Loan,
then, by written notice to the Borrower, the Bank may: (i) declare that LIBOR
Loans will not thereafter be made by the Bank hereunder, whereupon the Borrower
shall be prohibited from requesting LIBOR Loans from the Bank hereunder unless
such declaration is subsequently withdrawn; and (ii) require that all
outstanding LIBOR Loans made by it be converted to Prime Rate Loans, in which
event (x) all such LIBOR Loans shall be automatically converted into Prime Rate
Loans as of the effective date of such notice as provided for herein, and (y)
all payments and prepayments of principal which would otherwise be applied to
repay the converted LIBOR Loans shall instead be applied to repay the Prime Rate
Loans resulting from the conversion of such LIBOR Loans. For purposes of this
section, a notice to the Borrower by the Bank shall be effective on the day of
receipt by the Borrower.
If, at any time, the aggregate principal amount outstanding under this
Note shall exceed the maximum amount permitted under this Note, the Borrower
shall immediately prepay so much of the outstanding principal balance, together
with accrued interest on the portion of principal so prepaid, as shall be
necessary in order that the unpaid principal balance, after giving effect to
such prepayments, shall not be in excess of the maximum amount permitted by this
Note.
All payments, including any prepayments as set forth above, shall, at
the option of the Bank, be applied first to the payment of all costs and
expenses incurred by the Bank arising out of the loan transaction evidenced by
this Note, which have not been paid or reimbursed to the Bank, then to accrued
interest on the unpaid principal due under this Note, and the balance on account
of the principal due under this Note. All payments shall be in lawful money of
the United States of America in immediately available funds. If this Note or any
payment hereunder becomes due on a day which is not a Business Day, the due date
of this Note or payment shall be extended to the next succeeding Business Day,
and such extension of time shall be included in computing interest and fees in
connection with such payment.
All payments of principal and interest received by the Bank shall be
evidenced by notation on the books and records of the Bank which shall be
conclusive as to the amounts owing to the Bank pursuant to the Note, absent
manifest error; provided, however, that the failure of the Bank to make any such
notation with respect to any principal or interest payment shall not limit or
otherwise affect the obligations of the Borrower hereunder.
If by reason of an Event of Default, as defined in the Agreement, the
Bank elects to declare the Note to be immediately due and payable, resulting in
a prepayment in whole or in part of the outstanding principal balance of the
Note, then any yield maintenance fee with respect to the Note shall become due
and payable in the same manner as though the Borrower had exercised such right
of prepayment. Notwithstanding the foregoing, the yield maintenance fee
contemplated herein shall not apply if a default is cured by the Borrower and
the Note is reinstated.
Upon the happening of any Event of Default, as defined in the
Agreement, other than an Event of Default described in Sections 10.6 or 10.7 of
the Agreement, the Bank may (i) declare the then principal of all advances and
all interest accrued thereon and all applicable late charges and surcharges and
all other liabilities and obligations of the Borrower to the Bank to be
immediately due and payable, whereupon the same shall become immediately due and
payable and/or (ii) terminate any obligation of the Bank to make advances
hereunder and under the Agreement, all of the foregoing without presentment or
demand for payment, notice of non-payment, protest or any other demand or notice
of any kind, all of which are expressly waived by the Borrower. Failure to
exercise either or both such options shall not constitute a waiver of the right
to exercise the same in the event of any subsequent default. Notwithstanding the
foregoing, upon the occurrence of an Event of Default described in Section 10.6
or Section 10.7 of the Agreement, the outstanding principal balance of all
advances and all interest accrued thereon and all
-4-
<PAGE>
applicable late charges and surcharges and all other liabilities and obligations
of the Borrower to the Bank shall become automatically due and payable without
presentment or demand for payment, notice of non-payment, protest or any other
demand or notice of any kind, all of which are expressly waived by the Borrower.
This Note has been executed and delivered in accordance with the
Agreement, incorporated herein by reference, which sets forth further terms and
conditions upon which the entire unpaid principal hereof and all interest hereon
may become due and payable prior to the stated maturity hereof, and generally as
to further rights of the Bank and duties of the Borrower and any guarantor,
endorser or surety of any obligation of the Borrower to the Bank with respect
hereto. All advances made by the Bank to the Borrower and payments of principal
and interest received by the Bank shall be evidenced by notation on the books
and records of the Bank which shall be conclusive as to the amounts owing to the
Bank pursuant to the Note, absent manifest error; provided, however, that the
failure of the Bank to make any such notation with respect to any advance or
principal or interest payment shall not limit or otherwise affect the
obligations of the Borrower hereunder.
The Borrower agrees to pay all taxes levied or assessed upon the
outstanding principal against any holder of this Note and to pay all costs,
including reasonable attorneys' fees (including the costs and expenses allocated
to the Bank's internal Legal Department), costs relating to the appraisal and/or
valuation of assets and all other costs and expenses incurred in the collection,
protection, preservation, defense, or enforcement of this Note or in any
litigation arising out of the transactions of which this Note is a part.
The Borrower hereby grants to the Bank and any Participant (as
hereafter defined) a lien, security interest, and right of set off as security
for all of the Borrower's liabilities and obligations to the Bank, whether now
existing or hereafter arising, upon and against all the deposits, credits,
collateral and property of the Borrower now or hereafter in the possession,
custody, or control of the Bank and any Participant (as hereafter defined), any
entity under the control of Fleet Financial Group, Inc., or any Participant (as
hereafter defined) or in transit to any of them. At any time, without demand or
notice, the Bank may set off the same or any part thereof and apply the same to
any liability or obligation of the Borrower even though unmatured and regardless
of the adequacy of any other collateral securing the loan evidenced hereby. TO
THE EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO REQUIRE THE BANK TO EXERCISE
ITS REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES
PRIOR TO EXERCISING ITS RIGHT OF SET OFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY VOLUNTARILY, INTENTIONALLY, AND
IRREVOCABLY WAIVED.
THE BANK AND THE BORROWER MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY
INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS NOTE, ANY DOCUMENT,
INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THIS NOTE (THE "LOAN
DOCUMENTS") OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTION OF ANY PARTY. THIS WAIVER CONSTITUTES A MATERIAL
INDUCEMENT FOR THE BANK TO ACCEPT THIS NOTE AND ENTER INTO THE LOAN TRANSACTION
EVIDENCED BY THIS NOTE.
THE BORROWER ACKNOWLEDGES THAT THE LOAN EVIDENCED BY THIS NOTE IS PART
OF A COMMERCIAL TRANSACTION.
All agreements between the Borrower and the Bank are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Bank for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof; provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest,
then this Note shall be governed by such new law as of its effective date. In
this regard, it is expressly agreed that it is the intent of the Borrower and
the Bank in the execution, delivery and acceptance of this Note to contract in
strict compliance with the laws of the Commonwealth of Massachusetts from time
to time in effect. If, under or from any circumstances whatsoever, fulfillment
of any
-5-
<PAGE>
provision hereof at the time of performance of such provision shall be due,
shall involve transcending the limit of such validity prescribed by applicable
law, then the obligation to be fulfilled shall automatically be reduced to the
limits of such validity, and if under or from circumstances whatsoever the Bank
should ever receive as interest an amount which would exceed the highest lawful
rate, such amount which would be excessive interest shall be applied to the
reduction of the principal balance evidenced hereby and not to the payment of
interest. This provision shall control every other provision of all agreements
between the Borrower and the Bank.
The Bank may at any time pledge all or any portion of its rights under
the Loan Documents including any portion of this Note to any of the twelve (12)
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341. No such pledge or enforcement thereof shall release the Bank
from its obligations under any of the Loan Documents.
The Bank shall have the unrestricted right at any time and from time to
time, and without the consent of or notice to the Borrower, to grant to one or
more banks or other financial institutions (each, a "Participant") participating
interests in the Bank's obligation to lend hereunder and/or any or all of the
loans held by the Bank hereunder. In the event of any such grant by the Bank of
a participating interest to a Participant whether or not upon notice to the
Borrower, the Bank shall remain responsible for the performance of its
obligations hereunder and the Borrower shall continue to deal solely and
directly with the Bank in connection with the Bank's rights and obligations
hereunder. The Bank may furnish any information concerning the Borrower in its
possession from time to time to prospective Participants, provided that the Bank
shall require any such prospective Participant to agree in writing to maintain
the confidentiality of such information.
This Note shall be the joint and several obligation of each Borrower
and each provision of this Note shall apply to each and all jointly and
severally and to the property and liabilities of each and all. The Borrower
waives diligence, demand, presentment for payment, notice of nonpayment, protest
and notice of protest, and notice of any renewals or extensions of this Note,
and all rights under any statute of limitations, and agrees that the time for
payment of this Note may extended at the Bank's sole discretion, without
impairing the Borrower's liability hereon, and the Borrower further consents to
the release of all or any part of the security for the payment hereof at the
discretion of the Bank, or the release of any party liable for this obligation
without affecting the liability of the other parties hereto. Any delay on the
part of the Bank in exercising any right hereunder shall not operate as a waiver
of any such right, and any waiver granted for one occasion shall not operate as
a waiver in the event of any subsequent default.
If any provision of this Note shall, to any extent, be held invalid or
unenforceable, then only such provision shall be deemed ineffective and the
remainder of this Note shall not be affected.
This Note shall bind the heirs, executors, administrators, successors
and assigns of the Borrower and shall inure to the benefit of the Bank, its
successors and assigns and any Participant.
-6-
<PAGE>
This Note is executed as a sealed instrument and shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
WITNESS: Foilmark, Inc.
/s/ Jane E. Cohen By: /s/ Philip Leibel
- ----------------------------- ------------------------------------
Name: Philip Leibel
----------------------------------
Title: Vice President-Finance
---------------------------------
& Chief Financial Officer
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<PAGE>
FLEET NATIONAL BANK EQUIPMENT LINE OF CREDIT
PROMISSORY NOTE
$4,000,000.00 Date: August 6, 1999
For value received, Foilmark, Inc., a Delaware corporation, with an address at 5
Malcolm Hoyt Drive, Newburyport, Massachusetts (the "Borrower") hereby promises
to pay to the order of FLEET NATIONAL BANK, a national banking association (the
"Bank"), at the office of the Bank located at One Federal Street, Boston,
Massachusetts or at such other office as the holder hereof may designate, the
principal sum of FOUR MILLION DOLLARS ($4,000,000.00), or the aggregate of all
advances made by the Bank to the Borrower pursuant to the Agreement (as defined
below), together with interest thereon; interest only payments on so much as is
advanced shall commence on September 1, 1999, and shall be payable on the
corresponding day of each succeeding month to and including June 30, 2000. The
principal balance of all advances outstanding hereunder on June 30, 2000 (the
"Initial Amortization Amount") shall be evidenced by a separate Commercial
Promissory Note ("Equipment Note 2000") which shall provide for, among other
things, that the Initial Amortization Amount shall be payable in eighty four
(84) consecutive monthly installments, each in an amount equal to one eighty
fourth (1/84) of the aggregate unpaid principal of all advances made to the
Borrower pursuant to the Agreement (as defined below) as of June 30, 2000, plus
accrued interest at the rate set forth below, commencing on August 1, 2000, and
continuing on the corresponding date of each succeeding month, with the final
payment of all unpaid principal and accrued interest under Equipment Note 2000
to be made on June 30, 2007. On June 30, 2000, the Borrower may borrow any
amounts available hereunder after subtracting the Initial Amortization Amount
evidenced by Equipment Note 2000 from Four Million Dollars ($4,000,000.00).
Interest only payments on so much as is advanced hereunder after June 30, 2000
shall commence on August 1, 2000, and shall be payable on the corresponding day
of each succeeding month to and including June 30, 2001. On June 30, 2001, the
then outstanding principal balance hereunder shall be evidenced by a separate
Commercial Promissory Note ("Equipment Note 2001"), which shall provide for,
among other things, that the then outstanding principal balance hereunder shall
be payable in eighty four (84) consecutive monthly installments, each in an
amount equal to one eighty fourth (1/84) of the aggregate unpaid principal
outstanding hereunder as of June 30, 2001, plus accrued interest at the rate set
forth below, commencing August 1, 2001, and continuing on the corresponding date
of each succeeding month, with the final payment of all unpaid principal and
accrued interest to be made on June 30, 2008.
The interest on the unpaid balance shall be payable on the dates
provided above and is to be computed on the basis of a 360-day year and actual
days elapsed, and shall accrue, at the Borrower's option, from time to time, at
either (a) a variable per annum rate of interest equal to the Prime Rate, as
defined below (the "Prime Rate Loan"); or (b) a rate equal to the London
Interbank Offered Rate (LIBOR), as defined below, plus the percentage
corresponding thereto per annum fixed against the prevailing LIBOR for the
Interest Period as selected by the Borrower of one month, two months or three
months; provided, however, that for any such advance to qualify for the LIBOR
Rate of interest, as elected by the Borrower, such advance must be in the
minimum amount of One Hundred Thousand Dollars ($100,000.00) (the "LIBOR Loan").
The interest rate hereunder shall be calculated based upon the Borrower's
performance of the ratio of Funded to EBITDA, each as defined in the Amended and
Restated Credit Agreement dated of even date between the Borrower and the Bank,
as amended from time to time (the "Agreement") as follows:
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<PAGE>
<TABLE>
<CAPTION>
- ------------------------------ ------------------- ---------------
TOTAL FUNDED PRIME PLUS LIBOR PLUS
DEBT/ EBIDTA
- ------------------------------ ------------------- ---------------
<S> <C> <C>
greater than or equal to 0% 2.0%
3.0:1.0
- ------------------------------ ------------------- ---------------
greater than or equal to 0% 1.75%
2.5:1.0 but less than 3.0:1.0
- ------------------------------ ------------------- ---------------
greater than or equal to 0% 1.5%
2.0:1.0 but less than 2.5:1.0
- ------------------------------ ------------------- ---------------
less than 2.0:1.0 0% 1.25%
- ------------------------------ ------------------- ---------------
</TABLE>
For any principal amount due under this Note, from time to time, with respect to
which the LIBOR Rate has not been designated in accordance with the provisions
of this paragraph, interest shall accrue at the Prime Rate.
To the extent that interest is accruing on all or any portion of the
outstanding principal hereunder pursuant to the Prime Rate, interest on such
Prime Rate Loan shall be payable at the rate set forth above in consecutive
monthly installments commencing on September 1, 1999, and continuing thereafter
on the same day of each succeeding month and on maturity. To the extent that
interest is accruing on all or any portion of the outstanding principal
hereunder pursuant to the LIBOR Rate, interest on such LIBOR Loan shall be
payable hereunder on the last day of the Interest Period applicable thereto.
Upon default or after maturity or after judgment has been rendered on
this Note, the Borrower's right to select pricing options shall cease and the
unpaid principal of all advances shall, at the option of the Bank, accrue
interest at a rate which is equal to two (2) percentage points per annum greater
than the interest rate then in effect hereunder.
If the Bank determines that the effect of an applicable law or
government regulation, guideline or order or the interpretation thereof by any
governmental authority charged with the administration thereof (such as, for
example, a change in official reserve requirements which the Bank is required to
maintain in respect of loans or deposits or other funds procured for funding
such loans) is to increase the cost to the Bank of making or continuing a LIBOR
Loan hereunder or to reduce the amount of any payment of principal or interest
receivable by the Bank thereon, then the Borrower shall pay to the Bank on
demand such additional amounts as the Bank may determine in its sole and
absolute discretion, to be required to compensate the Bank for such additional
costs or reduction. Any additional payment under this section will be computed
from the effective date at which such additional costs have to be borne by the
Bank. A certificate as to any additional amounts payable pursuant to this
section setting forth the basis and method of determining such amounts shall be
conclusive, absent manifest error, as to the determination by the Bank set forth
therein if made reasonably and in good faith. The Borrower shall pay any and all
amounts so certified to it by the Bank within ten (10) days of receipt of such
certificate.
In the event, and on each occasion, that on the day two (2) Business
Days prior to the commencement of any Interest Period for a LIBOR Loan, the Bank
shall have determined (i) that dollar deposits in the amount of the requested
principal amount of such LIBOR Loan are not generally available in the London
interbank market, (ii) that the rate at which such dollar deposits are being
offered will not adequately and fairly reflect the cost to the Bank of making or
maintaining such LIBOR Loan during such Interest Period, or (iii) that
reasonable means do not exist for ascertaining the LIBOR rate, the Bank shall,
as soon as practicable thereafter, give written notice or telex notice of such
determination to the Borrower. In the event of any such determination, until the
circumstances giving rise to such notice no longer exist, no LIBOR Loan will be
made hereunder. Each determination by the Bank hereunder shall be conclusive
absent manifest error.
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<PAGE>
Notwithstanding anything to the contrary contained herein, if any
change in any law or regulation or with the administration or interpretation
thereof shall make it unlawful for the Bank to make or maintain any LIBOR Loan,
then, by written notice to the Borrower, the Bank may: (i) declare that LIBOR
Loans will not thereafter be made by the Bank hereunder, whereupon the Borrower
shall be prohibited from requesting LIBOR Loans from the Bank hereunder unless
such declaration is subsequently withdrawn; and (ii) require that all
outstanding LIBOR Loans made by it be converted to Prime Rate Loans, in which
event (x) all such LIBOR Loans shall be automatically converted into Prime Rate
Loans as of the effective date of such notice as provided for herein, and (y)
all payments and prepayments of principal which would otherwise be applied to
repay the converted LIBOR Loans shall instead be applied to repay the Prime Rate
Loans resulting from the conversion of such LIBOR Loans. For purposes of this
section, a notice to the Borrower by the Bank shall be effective on the day of
receipt by the Borrower.
For the purposes of this Note, the following terms shall have the
following meaning:
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday, or other day on
which commercial banks in the Commonwealth of Massachusetts are authorized or
required to close under the laws of the Commonwealth of Massachusetts and, if
the applicable day relates to a LIBOR Loan or an Interest Period for a LIBOR
Loan, the day on which dealings in dollar deposits are also carried on in the
London interbank market and banks are open for business in London.
"LONDON INTERBANK OFFERED RATE" ("LIBOR")" shall mean, as applicable to any
Interest Period for a LIBOR Loan, the rate per annum (rounded upward, if
necessary, to the nearest 1/32 of one percent) as determined on the basis of the
offered rates for deposits in U.S. dollars, for a period of time comparable to
such LIBOR Loan which appears on the Telerate page 3750 as of 11:00 a.m. London
time on the day that is two Business Days preceding the first day of such LIBOR
Loan; provided, however, if the rate described above does not appear on the
Telerate System on any applicable interest determination date, the LIBOR rate
shall be the rate (rounded upwards as described above, if necessary), for
deposits in dollars for a period substantially equal to the interest period on
the Reuters Page "LIBO" (or such other page as may replace the LIBO Page on that
service for the purpose of displaying such rates), as of 11:00 a.m. (London
time), on the day that is two (2) Business Days prior to the beginning of such
interest period. If both the Telerate and Reuters systems are unavailable, then
the rate for that date will be determined on the basis of the offered rates for
deposits in U.S. dollars for a period of time comparable to such LIBOR Loan
which are offered by four major banks in the London interbank market at
approximately 11:00 a.m. London time, on the day that is two Business Days
preceding the first day of such LIBOR Loan as selected by the Bank. The
principal London office of each of the four major London banks will be requested
to provide a quotation of its U.S. dollar deposit offered rate. If at least two
such quotations are provided, the rate for that date will be the arithmetic mean
of the quotations. If fewer than two quotations are provided as requested, the
rate for that date will be determined on the basis of the rates quoted for loans
in U.S. dollars to leading European banks for a period of time comparable to
such LIBOR Loan offered by major banks in New York City at approximately 11:00
a.m. New York City time, on the day that is two Business Days preceding the
first day of such LIBOR Loan. In the event that the Bank is unable to obtain any
such quotation as provided above, it will be deemed that LIBOR pursuant to a
LIBOR Loan cannot be determined. In the event that the Board of Governors of the
Federal Reserve System shall impose a Reserve Percentage with respect to LIBOR
deposits of the Bank, then for any period during which such Reserve Percentage
shall apply, LIBOR shall be equal to the amount determined above divided by an
amount equal to 1 minus the Reserve Percentage.
"LIBOR RATE" means a fixed interest rate equal to LIBOR plus the corresponding
percentage per annum.
"PRIME RATE" means the variable per annum rate of interest so designated from
time to time by the Bank as its prime rate. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate being charged to any
borrower. Changes in the rate of interest resulting from changes in the Prime
Rate shall take effect immediately without notice or demand of any kind.
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<PAGE>
"INTEREST PERIOD" means with respect to any LIBOR Loan, any period commencing on
the date such LIBOR Loan is made or the date of a subsequent interest rate
selection, as the case may be, and ending one month, two months or three months
later, as the Borrower may request, provided that: (y) any Interest Period which
would otherwise end on a day which is not a Business Day shall end on the next
preceding or succeeding Business Day as is the custom in the London interbank
market to which such advance relates; (z) each Interest Period which commences
before and would otherwise end after maturity shall end on maturity.
In the case of a LIBOR Loan, each request for an advance shall be in
writing and shall be made at least three (3) Business Days prior to the LIBOR
Loan. Each request for an advance hereunder shall specify the date of such loan,
the type of loan, and, if a LIBOR Loan, the duration of the Interest Period
applicable thereto.
The Borrower may prepay this Note in whole or in part, at any time,
without penalty or premium if the Note is bearing interest at a variable rate.
The Borrower may prepay a LIBOR Loan only upon at least three (3) Business Days
prior written notice to the Bank (which notice shall be irrevocable), and any
such prepayment shall occur only on the last day of the Interest Period for such
LIBOR Loan. The Borrower shall pay to the Bank, immediately upon request of the
Bank, such amount as shall be sufficient (in the reasonable opinion of the Bank)
to compensate it for any loss, cost, or expense incurred as a result of: (i) any
payment of a LIBOR Loan, whether as a result of acceleration or otherwise, on a
date other than the last day of the Interest Period for such Loan; (ii) the
conversion prior to the last day of an applicable Interest Period into a Prime
Rate Loan; (iii) any failure by the Borrower to borrow a LIBOR Loan on the date
specified by Borrower's written notice; (iv) any failure by the Borrower to pay
a LIBOR Loan on the date for payment specified in the Borrower's written notice.
Without limiting the foregoing, the Borrower shall pay to the Bank a "yield
maintenance fee" in an amount computed as follows: The current rate for United
States Treasury securities (bills on a discounted basis shall be converted to a
bond equivalent) with a maturity date closest to the term chosen pursuant to the
Fixed Rate Election as to which the prepayment is made, shall be subtracted from
the LIBOR in effect at the time of prepayment. If the result is zero or a
negative number, there shall be no yield maintenance fee. If the result is a
positive number, then the resulting percentage shall be multiplied by the amount
of the principal balance being prepaid. The resulting amount shall be divided by
360 and multiplied by the number of days remaining in the term chosen pursuant
to the Fixed Rate Election as to which the prepayment is made. Said amount shall
be reduced to present value calculated by using the above referenced United
States Treasury securities rate and the number of days remaining in the term
chosen pursuant to the Fixed Rate Election as to which prepayment is made. The
resulting amount shall be the yield maintenance fee due to the Bank upon the
payment of a LIBOR Loan. Each reference in this paragraph to "Fixed Rate
Election" shall mean the election by Borrower of the LIBOR Rate. If by reason of
an Event of Default, the Bank elects to declare the Note to be immediately due
and payable, then any yield maintenance fee with respect to a LIBOR Loan shall
become due and payable in the same manner as though the Borrower had exercised
such right of prepayment.
If, at any time, the aggregate principal amount of all advances
outstanding under this Note shall exceed the maximum amount permitted under this
Note and the Agreement (as defined below), the Borrower shall immediately prepay
so much of the outstanding principal balance, together with accrued interest on
the portion of principal so prepaid, as shall be necessary in order that the
unpaid principal balance, after giving effect to such prepayments, shall not be
in excess of the maximum amount permitted by this Note and the Agreement.
The Bank is authorized, but not required, to charge principal and
interest due on this Note and all other amounts due hereunder to any account of
the Borrower when and as it becomes due. All payments, including any prepayments
as set forth above, shall, at the option of the Bank, be applied first to the
payment of all costs and expenses incurred by the Bank arising out of the loan
transaction evidenced by this Note, which have not been paid or reimbursed to
the Bank, then to accrued interest on the unpaid principal of all advances due
under this Note, and the balance on account of the principal of all advances due
under this Note. All payments shall be in lawful money of the United States of
America in immediately available funds. If this Note or any payment hereunder
becomes due on a day which is not a Business Day, the due date of this Note or
payment shall be extended to the next succeeding Business Day, and such
extension of time shall be included in computing interest and fees in connection
with such payment.
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<PAGE>
If the entire amount of any required principal and/or interest is not
paid in full within ten (10) days after the same is due, the Borrower shall pay
to the Bank a late fee equal to two percent (2%) of the required payment
If by reason of an Event of Default, as defined in the Agreement, the
Bank elects to declare the Note to be immediately due and payable, resulting in
a prepayment in whole or in part of the outstanding principal balance of the
Note, then any yield maintenance fee with respect to the Note shall become due
and payable in the same manner as though the Borrower had exercised such right
of prepayment. Notwithstanding the foregoing, the yield maintenance fee
contemplated herein shall not apply if a default is cured by the Borrower and
the Note is reinstated.
Upon the happening of any Event of Default, as defined in the
Agreement, other than an Event of Default described in Sections 10.6 or 10.7 of
the Agreement, the Bank may (i) declare the then principal of all advances and
all interest accrued thereon and all applicable late charges and surcharges and
all other liabilities and obligations of the Borrower to the Bank to be
immediately due and payable, whereupon the same shall become immediately due and
payable and/or (ii) terminate any obligation of the Bank to make advances
hereunder and under the Agreement, all of the foregoing without presentment or
demand for payment, notice of non-payment, protest or any other demand or notice
of any kind, all of which are expressly waived by the Borrower. Failure to
exercise either or both such options shall not constitute a waiver of the right
to exercise the same in the event of any subsequent default. Notwithstanding the
foregoing, upon the occurrence of an Event of Default described in Section 10.6
or Section 10.7 of the Agreement, the outstanding principal balance of all
advances and all interest accrued thereon and all applicable late charges and
surcharges and all other liabilities and obligations of the Borrower to the Bank
shall become automatically due and payable without presentment or demand for
payment, notice of non-payment, protest or any other demand or notice of any
kind, all of which are expressly waived by the Borrower.
This Note has been executed and delivered in accordance with the
Agreement, incorporated herein by reference, which sets forth further terms and
conditions upon which the entire unpaid principal hereof and all interest hereon
may become due and payable prior to the stated maturity hereof, and generally as
to further rights of the Bank and duties of the Borrower and any guarantor,
endorser or surety of any obligation of the Borrower to the Bank with respect
hereto. All advances made by the Bank to the Borrower and payments of principal
and interest received by the Bank shall be evidenced by notation on the books
and records of the Bank which shall be conclusive as to the amounts owing to the
Bank pursuant to the Note, absent manifest error; provided, however, that the
failure of the Bank to make any such notation with respect to any advance or
principal or interest payment shall not limit or otherwise affect the
obligations of the Borrower hereunder.
The Borrower agrees to pay all taxes levied or assessed upon the
outstanding principal against any holder of this Note and to pay all costs,
including reasonable attorneys' fees (including costs and expenses allocated to
the Bank's internal Legal Department), costs relating to the appraisal and/or
valuation of assets and all other costs and expenses incurred in the collection,
protection, preservation, defense, or enforcement of this Note or in any
litigation arising out of the transactions of which this Note is a part.
The Borrower hereby grants to the Bank and any Participant (as
hereafter defined) a lien, security interest, and right of set off as security
for all of the Borrower's liabilities and obligations to the Bank, whether now
existing or hereafter arising, upon and against all the deposits, credits,
collateral and property of the Borrower now or hereafter in the possession,
custody, or control of the Bank and any Participant (as hereafter defined) or
any entity under the control of Fleet Financial Group, Inc. or any Participant
(as hereafter defined) or in transit to any of them. At any time, without demand
or notice, the Bank may set off the same or any part thereof and apply the same
to any liability or obligation of the Borrower even though unmatured and
regardless of the adequacy of any other collateral securing the loan evidenced
hereby. TO THE EXTENT PERMITTED BY LAW, ANY AND ALL RIGHTS TO REQUIRE THE BANK
TO EXERCISE ITS REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE
LIABILITIES PRIOR TO EXERCISING ITS RIGHT OF SET OFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE BORROWER, ARE HEREBY VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVED.
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<PAGE>
THE BANK AND THE BORROWER MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF
ANY CLAIM ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS NOTE, ANY DOCUMENT,
INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THIS NOTE, INCLUDING
THE AFORESAID AGREEMENT (THE "LOAN DOCUMENTS") OR ANY COURSE OF CONDUCT, COURSE
OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTION OF ANY PARTY. THIS
WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR THE BANK TO ACCEPT THIS NOTE AND
ENTER INTO THE LOAN TRANSACTION EVIDENCED BY THIS NOTE.
THE BORROWER ACKNOWLEDGES THAT THE ADVANCES EVIDENCED BY THIS NOTE ARE
PART OF A COMMERCIAL TRANSACTION.
All agreements between the Borrower and the Bank are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of maturity of the indebtedness evidenced hereby or otherwise,
shall the amount paid or agreed to be paid to the Bank for the use or the
forbearance of the indebtedness evidenced hereby exceed the maximum permissible
under applicable law. As used herein, the term "applicable law" shall mean the
law in effect as of the date hereof; provided, however, that in the event there
is a change in the law which results in a higher permissible rate of interest,
then this Note shall be governed by such new law as of its effective date. In
this regard, it is expressly agreed that it is the intent of the Borrower and
the Bank in the execution, delivery and acceptance of this Note to contract in
strict compliance with the laws of the Commonwealth of Massachusetts from time
to time in effect. If, under or from any circumstances whatsoever, fulfillment
of any provision hereof at the time of performance of such provision shall be
due, shall involve transcending the limit of such validity prescribed by
applicable law, then the obligation to be fulfilled shall automatically be
reduced to the limits of such validity, and if under or from circumstances
whatsoever the Bank should ever receive as interest an amount which would exceed
the highest lawful rate, such amount which would be excessive interest shall be
applied to the reduction of the principal balance evidenced hereby and not to
the payment of interest. This provision shall control every other provision of
all agreements between the Borrower and the Bank.
The Bank may at any time pledge all or any portion of its rights under
the Loan Documents including any portion of this Note to any of the twelve (12)
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341. No such pledge or enforcement thereof shall release the Bank
from its obligations under any of the Loan Documents.
The Bank shall have the unrestricted right at any time and from time to
time, and without the consent of or notice to the Borrower, to grant to one or
more banks or other financial institutions (each, a "Participant") participating
interests in any or all of the loans held by the Bank hereunder. In the event of
any such grant by the Bank of a participating interest to a Participant whether
or not upon notice to the Borrower, the Bank shall remain responsible for the
performance of its obligations hereunder and the Borrower shall continue to deal
solely and directly with the Bank in connection with the Bank's rights and
obligations hereunder. The Bank may furnish any information concerning the
Borrower in its possession from time to time to prospective Participants,
provided that the Bank shall require any such prospective Participant to agree
in writing to maintain the confidentiality of such information.
This Note shall be the joint and several obligation of each Borrower
and each provision of this Note shall apply to each and all jointly and
severally and to the property and liabilities of each and all. The Borrower
waives diligence, demand, presentment for payment, notice of nonpayment, protest
and notice of protest, and notice of any renewals or extensions of this Note,
and all rights under any statute of limitations, and agrees that the time for
payment of this Note may be extended at the Bank's sole discretion, without
impairing the Borrower's liability hereon, and the Borrower further consents to
the release of all or any part of the security for the payment hereof at the
discretion of the Bank, or the release of any party liable for this obligation
without affecting the liability of the
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<PAGE>
other parties hereto. Any delay on the part of the Bank in exercising any right
hereunder shall not operate as a waiver of any such right, and any waiver
granted for one occasion shall not operate as a waiver in the event of any
subsequent default. No modification or amendment hereof shall be effective
unless in writing signed by the Bank and the Borrower.
If any provision of this Note shall, to any extent, be held invalid or
unenforceable, then only such provision shall be deemed ineffective and the
remainder of this Note shall not be affected.
This Note shall bind the heirs, executors, administrators, successors
and assigns of the Borrower and shall inure to the benefit of the Bank, its
successors and assigns and any Participant.
(the remainder of this page intentionally left blank)
This Note is executed as a sealed instrument and shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts.
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<PAGE>
WITNESS: BORROWER:
Foilmark, Inc.
/s/ Jane E. Cohen BY: /s/ Philip Leibel
- ----------------------------- ------------------------------------
NAME: Philip Leibel
----------------------------------
TITLE: Vice President-Finance
---------------------------------
& Chief Financial Officer
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<PAGE>
FLEET NATIONAL BANK GUARANTY
This Guaranty is executed and delivered as of August 6, 1999 by the
undersigned, Alubec Industries, a Canadian corporation, with an address at 417
Place de Louvain, Montreal, Quebec, Canada (the "Guarantor") to FLEET NATIONAL
BANK, a national banking association organized and existing under the laws of
the United States of America, having an office located at One Federal Street,
Boston, Massachusetts (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank and Foilmark, Inc., a Delaware corporation (the
"Borrower") intend to enter into a loan transaction (the "Loan"); and
WHEREAS, the Guarantor is a subsidiary of the Borrower and will derive
a direct and substantial business benefit from the consummation and existence of
the Loan; and
WHEREAS, the Bank has advised the Guarantor that it will not enter into
the aforesaid loan transaction with the Borrower or continue to extend credit to
the Borrower unless, among other matters, the Guarantor guarantees the punctual
payment and performance of all obligations of the Borrower to the Bank as
hereinafter provided, including without limitation, the punctual payment of all
principal, interest and fees; and
WHEREAS, on account of the direct and substantial business benefit to
be derived by the Guarantor from the Loan, the Guarantor is willing and has
agreed to guarantee the payment and performance of the aforesaid obligations, as
hereinafter provided.
NOW, THEREFORE, in consideration of any and all loans, advances,
discounts and extensions of credit made and to be made by the Bank to, for the
account of, or on behalf of the Borrower, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor agrees
as follows:
1. LIABILITIES. "Liabilities" shall mean any and all obligations, indebtedness
and liabilities of any type of the Borrower to the Bank, whether now existing or
hereafter incurred, whether or not contemplated on the date of this Guaranty,
direct or indirect, primary or secondary, absolute or contingent, due or to
become due, whether otherwise guaranteed or secured, and howsoever evidenced or
acquired, including all obligations of the Borrower in respect of letters of
credit and banker's acceptances (excluding, however, indebtedness incurred
primarily for personal, family or household purposes); the obligations of the
Borrower under any agreement evidencing any of the foregoing; expenses and costs
incurred by the Bank in the enforcement of any of its rights with respect
thereto, including without limitation reasonable attorneys' fees and costs
(which may include costs and expenses allocated to the Bank's internal Legal
Department); and any and all costs and expenses incurred by the Bank for
appraisals, environmental site assessments, and examinations and inspections of
books and records and property including, without limitation, the fees and
expenses of all engineers, appraisers and other professionals, or any other
expenses arising out of or with respect to the validity, enforceability,
collection, defense or preservation of this Guaranty.
2. GUARANTY OF LIABILITIES. The obligations of Guarantor hereunder are primary
and not contingent. Guarantor acknowledges and agrees that this Guaranty is
intended to be a contract of suretyship and that the Guarantor has agreed to act
as a surety to the Bank. The Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to the Bank the full, complete and punctual payment
and performance when and as due, whether at the stated date or dates for such
payment, by acceleration or otherwise, each and all of the Liabilities. If for
any reason the Liabilities are unenforceable against the Borrower, then in said
event, this Guaranty shall nevertheless be binding upon the Guarantor to the
same extent as if the Guarantor had been the principal obligor of such
Liability. To the degree any Loan proceeds are used to purchase equipment to be
owned by the Guarantor, upon request by the Bank, the Guarantor shall execute a
Security Agreement and Uniform Commercial Code Financing Statements appropriate
to such transaction.
<PAGE>
3. GUARANTY ABSOLUTE AND UNCONDITIONAL. This is a Guaranty of payment and not
merely of collection. This is a continuing, absolute and unconditional Guaranty
which is subject to no limitations except those expressly agreed to by the
Guarantor and the Bank in writing. This Guaranty is not conditioned or
contingent upon the genuineness, validity, or enforceability of the loan
documents or other instruments relating to the creation or performance of the
Liabilities or the pursuit by the Bank of any remedies which the Bank has now or
may hereafter have with respect thereto under the loan documents at law, in
equity, or otherwise. Furthermore, the Guarantor shall forthwith pay all sums
due to the Bank hereunder without regard to any counterclaim, setoff, deduction,
or defense of any kind which any party obligated under the loan documents may
have or assert, and without abatement, suspension, deferment, or reduction on
account of any occurrence whatsoever. All payments made in connection with this
Guaranty shall be in lawful money of the United States of America in immediately
available funds.
4. EVENTS OF DEFAULT. Upon the occurrence of any Event of Default as defined in
a certain Amended and Restated Credit Agreement of even date by and among the
Borrower and the Bank (the "Credit Agreement") the liabilities and obligations
of the Guarantor hereunder shall immediately become due and payable at the
election of the Bank without notice or demand. The Bank shall have no obligation
to exercise any right or remedy or to seek any recovery from any party obligated
under the loan documents or to realize upon any collateral prior to proceeding
hereunder against the Guarantor, and likewise the enforcement of the Bank's
rights against the Borrower, any other party to the loan documents, or any
collateral, shall not impair the right of the Bank to enforce this Guaranty
against the Guarantor. The Guarantor expressly agrees that any such action by
the Bank shall never operate as a release or other diminution of the liability
of the Guarantor under this Guaranty.
5. [INTENTIONALLY OMITTED]
6. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. The Guarantor hereby acknowledges
and agrees to be bound by the covenants applicable to the Guarantor as set forth
in Sections 7 and 8 of the Credit Agreement. The Guarantor hereby further
represents and warrants that: (a) neither the execution nor performance of this
Guaranty will violate any indenture, agreement or other instrument to which the
Guarantor is a party, or by which the Guarantor is bound, or be in conflict
with, result in a breach of or constitute with due notice or lapse of time or
both a default under, or except as may be provided by this Guaranty, result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Guarantor pursuant to any
such indenture, agreement or instrument; (b) there is no action suit or
proceeding at law or in equity or by or before any governmental instrumentality
or other agency now pending or, to the knowledge of the Guarantor, threatened or
affecting the Guarantor which, if adversely determined, would have a material
adverse effect on the business, operations, properties, assets or condition,
financial or otherwise, of the Guarantor; (c) the Guarantor is not party to any
agreement or instrument or subject to any restriction adversely affecting the
guarantor's business, properties or assets, operations or conditions, financial
or otherwise; (d) the Guarantor is not in material default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument which the Guarantor is a party; (e) the
Guarantor currently is, and will be after the transaction contemplated herein,
Solvent (as defined in the Credit Agreement); and (f) if a corporate,
partnership, limited liability company or trust Guarantor, it is duly organized,
validly existing and in good standing under the laws of the state of its
formation and in every other jurisdiction, except where the failure to so
qualify would not have a material adverse effect on the Guarantor, its property,
its financial condition or otherwise.
7. GUARANTOR'S WAIVERS; WAIVER OF SUBROGATION. The Guarantor waives notice of
the incurring of Liabilities, the acceptance of this Guaranty by the Bank;
presentment and demand for payment, protest, notice of protest, notice of
dishonor or non-payment of any instrument evidencing any Liabilities,
acceleration, and intent to accelerate; any right to require suit against the
Borrower or any other party before enforcing this Guaranty; any right to have
security applied before enforcing this Guaranty in any manner; any right to
marshaling of assets; the defense of impairment of collateral; and all other
suretyship defenses. The Guarantor specifically waives notice of any disposition
of any collateral after default or demand, as applicable, and the Guarantor
shall remain liable on the Liabilities notwithstanding any claim that the
disposition of any collateral was not commercially reasonable. The Guarantor
consents and agrees that renewals and extensions of time of payment, surrender,
release, exchange, substitution, dealing with or taking of additional collateral
security, taking or release of any guarantees, abstaining from taking advantage
or realizing upon any collateral security or other guarantees and any and all
other
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<PAGE>
forbearances or indulgences granted by the Bank to the Borrower or any other
party may be made, granted and effected by the Bank without notice to the
Guarantor and without in any manner affecting the Guarantor's liability
hereunder. Any notice to the Guarantor by the Bank at any time shall not imply
that such notice or any further or similar notice was or is required. The
Guarantor also hereby waives any claim, right or remedy which the Guarantor may
now have or hereafter acquire against the Borrower that arises hereunder and/or
from the performance by the Guarantor hereunder including, without limitation,
any claim, remedy or right of subrogation, reimbursement, exoneration,
contribution, indemnification, or participation in any claim, right or remedy of
the Bank against the Borrower or any security which the Bank now has or
hereafter acquires, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise. The Guarantor
acknowledges that the underlying transaction to which the Guaranty relates
concerns the Bank having made or making, now or in the future, loans and
advances, or otherwise extending credit to the Borrower and that the Guarantor
will materially and directly or indirectly receive good and valuable
consideration and/or financial benefit from said underlying transactions.
8. FEES AND EXPENSES; SETOFF RIGHTS. The Guarantor agrees to pay the Bank any
and all costs, expenses and reasonable attorneys' fees (which may include costs
allocated to the Bank's internal Legal Department), paid or incurred by the Bank
in enforcing or endeavoring to enforce this Guaranty, including, without
limitation, any administrative fees such as overnight courier fees, lien search
fees, and filing and recording fees. The Guarantor hereby grants to the Bank a
lien, security interest, and right of setoff as security for all of the
Guarantor's liabilities and obligations to the Bank, whether now existing or
hereafter arising, upon and against all the deposits, credits, collateral and
property of the undersigned, now or hereafter in the possession, custody, or
control of Fleet National Bank, any entity under the control of Fleet Financial
Group, Inc. or any participant of the Bank in the Loan ("Participant") or in
transit to any of them. At any time, without demand or notice, the Bank or any
Participant may set off the same or any part thereof and apply the same to any
liability or obligation of the undersigned even though unmatured and regardless
of the adequacy of any other collateral securing the Borrower's or the
undersigned's liabilities and obligations to you. ANY AND ALL RIGHTS TO REQUIRE
THE BANK OR ANY PARTICIPANT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT OT
ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9. PREFERENCE, ETC. The Guarantor agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of the principal of, interest on, or fees with respect to any of
the Liabilities is rescinded or must otherwise be restored or returned by the
Bank upon insolvency, bankruptcy or reorganization of the Borrower or the
Guarantor, or otherwise, all as though such payment had not been made.
10. CHOICE OF LAW; MODIFICATION; SUCCESSORS AND ASSIGNS. This Guaranty is
executed under and shall be construed in accordance with the local laws
(excluding the conflict of laws rules, so-called) of the Commonwealth of
Massachusetts (the "Governing State"). This writing is intended by the parties
as the final, complete and exclusive statement of the terms of this Guaranty. No
course of dealing between the parties, no usage of the trade and no parol or
extrinsic evidence of any nature shall be used or be relevant to supplement,
explain or modify any term used herein. If any provision of this Guaranty shall
to any extent be held invalid or unenforceable, then only such provision shall
be deemed ineffective and the remainder of this Guaranty shall not be affected.
This Guaranty may not be amended, modified or waived except by a written
instrument describing such amendment, modification or waiver executed by the
Guarantor and the Bank. It may not be assigned by the Guarantor. It shall inure
to the benefit of the Bank and its successors and assigns and shall bind the
Guarantor and the successors, representatives and heirs of the Guarantor.
11. THE GUARANTOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS GUARANTY IS A
PART IS A COMMERCIAL TRANSACTION.
12. THE GUARANTOR AND THE BANK KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
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<PAGE>
INSTITUTED BY OR AGAINST THE GUARANTOR OR THE BANK IN RESPECT OF THIS GUARANTY
OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR
SECURING THIS GUARANTY OR THE LIABILITIES GUARANTEED BY THIS GUARANTY.
13. JURISDICTION AND VENUE. The Guarantor hereby irrevocably consents that any
legal action or proceeding against the Guarantor or any of the Guarantor's
property with respect to any matter arising under or relating to this Guaranty
may be brought in any court of the Governing State, or any Federal Court of the
United States of America located in the Governing State, as the Bank may elect,
and by execution and delivery of this Guaranty, the Guarantor hereby submits to
and accepts with regard to any such action or proceeding, for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Guarantor further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Guarantor at its address
set forth herein. The foregoing, however, shall not limit the Bank's rights to
serve process in any other manner permitted by law or to bring any legal action
or proceeding or to obtain execution of judgment in any other jurisdiction. The
Guarantor hereby irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Guaranty, and hereby further irrevocably waives any claim
that the Governing State is not a convenient forum for any such suit, action or
proceeding.
14. BORROWER'S DISCHARGE. If for any reason any of the Liabilities have been
discharged or have become irrecoverable from the Borrower by operation of law or
for any other reason, the liabilities of the Guarantor under this Guaranty shall
nevertheless remain in full force and effect notwithstanding such discharge or
irrevocability.
15. PROSPECTIVE TERMINATION ONLY. This Guaranty shall not be terminated until
the Bank in its discretion determines that the Liabilities of the Borrower
covered by this Guaranty have been satisfied in full.
16. FINANCIAL STATEMENTS. For so long as this Guaranty is in effect, the
Guarantor shall deliver to the Bank such tax returns, financial statements and
other information about the Guarantor's financial condition as may be required
by the Credit Agreement.
17. NOTICES. Except as otherwise specifically provided for herein, any notice,
demand or communication hereunder shall be given in writing (including facsimile
transmission or telex) and mailed or delivered to each party at its address set
forth above, or, as to each party, at such other address as shall be designated
by such party by a prior notice to the other party in accordance with the terms
of this provision. Any notice to the Guarantor shall be sent to the address
referenced above. All notices hereunder shall be effective upon the earliest to
occur of (i) five (5) business days after such notice is mailed, by registered
or certified mail, postage prepaid (return receipt requested), (ii) upon
delivery by hand (iii) upon delivery if delivered by overnight courier (such
delivery to be evidenced by the courier's records), and (iv) in the case of any
notice or communication by telex or telecopy, on the date when sent.
18. ASSIGNMENTS AND PARTICIPATIONS. The Guarantor agrees that the Bank shall
have the right at all times to sell all or any portion of the Liabilities and
all documents and instruments evidencing or pertaining to the Liabilities
including this Guaranty. In connection therewith, the Guarantor hereby
irrevocably authorizes the Bank to deliver to each such purchaser, participant
and prospective purchaser or participant originals and copies of all loan
documents and instruments and this Guaranty and all financial statements and
other credit and factual data from time to time in the Bank's possession which
relate to the Borrower and/or all guarantors, including the Guarantor. This
Guaranty is expressly declared to be transferable and assignable.
19. INDEMNIFICATION. The Guarantor agrees to defend, indemnify and hold harmless
the Bank and any participants, successors or assigns of the Bank and the
officers, directors, employees and agents of each of them from and against any
and all losses, claims, liabilities, asserted liabilities, costs and expenses,
including, without limitation, costs of litigation and attorneys' fees (both the
allocated costs of internal counsel and outside counsel), incurred in connection
with any and all claims or proceedings for bodily injury, property damage,
abatement or remediation, environmental damage or impairment or any other injury
or damage (including all foreseeable and
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<PAGE>
unforeseeable consequential damage) or any diminution in value of any real
property resulting from or relating, directly or indirectly, to (a) any release,
spilling, leaking, migrating, discharging, escaping, leaching, dumping or
disposing (a "Release") into the environment of any toxic substances or
hazardous wastes (actual or threatened), a threatened Release, the existence or
removal of any toxic substances or hazardous wastes on, into, from, through or
under any real property owned or operated by the Borrower or the Guarantor any
other guarantor of the Liabilities (for purposes of this paragraph, a
"Guarantor") (whether or not such Release was caused by Borrower, any Guarantor,
a tenant, subtenant, prior owner or tenant or any other person and whether or
not the alleged liability is attributable to the handling, storage, generation,
transportation or disposal of toxic substances or hazardous wastes or the mere
presence of such toxic substances or hazardous wastes) or (b) the breach or
alleged breach by Borrower and each Guarantor of any federal, state or local law
or regulation concerning public health, safety or the environment with respect
to any real property owned or operated by the Borrower or any Guarantor and/or
any business conducted thereon.
20. JOINT AND SEVERAL OBLIGATIONS; GENDER. If more than one Guarantor has signed
this Guaranty, the obligations of the Guarantor are joint and several. The term
"Guarantor" and all pronouns referring thereto as used herein shall be construed
in the masculine, feminine, neuter or singular or plural as the context may
require.
21. REPLACEMENT OF GUARANTY. Upon receipt of an affidavit of an officer of the
Bank as to the loss, theft, destruction or mutilation of this Guaranty and, in
the case of any such loss, theft, destruction or mutilation, upon cancellation
of such Guaranty, the undersigned will issue, in lieu thereof, a replacement
Guaranty.
This Guaranty has been executed by the Guarantor, through its duly
authorized representative where required, as of the date above written.
Alubec Industries
/s/ Lori S. Westerholm By: /s/ Philip Leibel
- ------------------------------- ---------------------------------------
Witness Its: Treasurer & Chief Financial Officer
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<PAGE>
FLEET NATIONAL BANK GUARANTY
This Guaranty is executed and delivered as of August 6, 1999 by the
undersigned, Foilmark Manufacturing Corporation, a Delaware corporation, with an
address at 5 Malcolm Hoyt Drive, Newburyport, Massachusetts (the "Guarantor") to
FLEET NATIONAL BANK, a national banking association organized and existing under
the laws of the United States of America, having an office located at One
Federal Street, Boston, Massachusetts (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank and Foilmark, Inc., a Delaware corporation (the
"Borrower") intend to enter into a loan transaction (the "Loan"); and
WHEREAS, the Guarantor is a subsidiary of the Borrower and will derive
a direct and substantial business benefit from the consummation and existence of
the Loan; and
WHEREAS, the Bank has advised the Guarantor that it will not enter into
the aforesaid loan transaction with the Borrower or continue to extend credit to
the Borrower unless, among other matters, the Guarantor guarantees the punctual
payment and performance of all obligations of the Borrower to the Bank as
hereinafter provided, including without limitation, the punctual payment of all
principal, interest and fees; and
WHEREAS, on account of the direct and substantial business benefit to
be derived by the Guarantor from the Loan, the Guarantor is willing and has
agreed to guarantee the payment and performance of the aforesaid obligations, as
hereinafter provided.
NOW, THEREFORE, in consideration of any and all loans, advances,
discounts and extensions of credit made and to be made by the Bank to, for the
account of, or on behalf of the Borrower, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor agrees
as follows:
1. LIABILITIES. "Liabilities" shall mean any and all obligations, indebtedness
and liabilities of any type of the Borrower to the Bank, whether now existing or
hereafter incurred, whether or not contemplated on the date of this Guaranty,
direct or indirect, primary or secondary, absolute or contingent, due or to
become due, whether otherwise guaranteed or secured, and howsoever evidenced or
acquired, including all obligations of the Borrower in respect of letters of
credit and banker's acceptances (excluding, however, indebtedness incurred
primarily for personal, family or household purposes); the obligations of the
Borrower under any agreement evidencing any of the foregoing; expenses and costs
incurred by the Bank in the enforcement of any of its rights with respect
thereto, including without limitation reasonable attorneys' fees and costs
(which may include costs and expenses allocated to the Bank's internal Legal
Department); and any and all costs and expenses incurred by the Bank for
appraisals, environmental site assessments, and examinations and inspections of
books and records and property including, without limitation, the fees and
expenses of all engineers, appraisers and other professionals, or any other
expenses arising out of or with respect to the validity, enforceability,
collection, defense or preservation of this Guaranty. Any collateral or security
previously granted by the Guarantor to the Bank to secure any Liabilities, shall
also be deemed to secure this Guaranty.
2. GUARANTY OF LIABILITIES. The obligations of Guarantor hereunder are primary
and not contingent. Guarantor acknowledges and agrees that this Guaranty is
intended to be a contract of suretyship and that the Guarantor has agreed to act
as a surety to the Bank. The Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to the Bank the full, complete and punctual payment
and performance when and as due, whether at the stated date or dates for such
payment, by acceleration or otherwise, each and all of the Liabilities. If for
any reason the Liabilities are unenforceable against the Borrower, then in said
event, this Guaranty shall nevertheless be binding upon the Guarantor to the
same extent as if the Guarantor had been the principal obligor of such
Liability.
<PAGE>
3. GUARANTY ABSOLUTE AND UNCONDITIONAL. This is a Guaranty of payment and not
merely of collection. This is a continuing, absolute and unconditional Guaranty
which is subject to no limitations except those expressly agreed to by the
Guarantor and the Bank in writing. This Guaranty is not conditioned or
contingent upon the genuineness, validity, or enforceability of the loan
documents or other instruments relating to the creation or performance of the
Liabilities or the pursuit by the Bank of any remedies which the Bank has now or
may hereafter have with respect thereto under the loan documents at law, in
equity, or otherwise. Furthermore, the Guarantor shall forthwith pay all sums
due to the Bank hereunder without regard to any counterclaim, setoff, deduction,
or defense of any kind which any party obligated under the loan documents may
have or assert, and without abatement, suspension, deferment, or reduction on
account of any occurrence whatsoever. All payments made in connection with this
Guaranty shall be in lawful money of the United States of America in immediately
available funds.
4. EVENTS OF DEFAULT. Upon the occurrence of any Event of Default as defined n a
certain Amended and Restated Credit Agreement of even date by and among the
Borrower and the Bank (the "Credit Agreement") the liabilities and obligations
of the Guarantor hereunder shall immediately become due and payable at the
election of the Bank without notice or demand. The Bank shall have no obligation
to exercise any right or remedy or to seek any recovery from any party obligated
under the loan documents or to realize upon any collateral prior to proceeding
hereunder against the Guarantor, and likewise the enforcement of the Bank's
rights against the Borrower, any other party to the loan documents, or any
collateral, shall not impair the right of the Bank to enforce this Guaranty
against the Guarantor. The Guarantor expressly agrees that any such action by
the Bank shall never operate as a release or other diminution of the liability
of the Guarantor under this Guaranty.
5. [INTENTIONALLY OMITTED]
6. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. The Guarantor hereby acknowledges
and agrees to be bound by the covenants applicable to the Guarantor as set forth
in Sections 7 and 8 of the Credit Agreement. The Guarantor hereby further
represents and warrants that: (a) neither the execution nor performance of this
Guaranty will violate any indenture, agreement or other instrument to which the
Guarantor is a party, or by which the Guarantor is bound, or be in conflict
with, result in a breach of or constitute with due notice or lapse of time or
both a default under, or except as may be provided by this Guaranty, result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Guarantor pursuant to any
such indenture, agreement or instrument; (b) there is no action suit or
proceeding at law or in equity or by or before any governmental instrumentality
or other agency now pending or, to the knowledge of the Guarantor, threatened or
affecting the Guarantor which, if adversely determined, would have a material
adverse effect on the business, operations, properties, assets or condition,
financial or otherwise, of the Guarantor; (c) the Guarantor is not party to any
agreement or instrument or subject to any restriction adversely affecting the
guarantor's business, properties or assets, operations or conditions, financial
or otherwise; (d) the Guarantor is not in material default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument which the Guarantor is a party; (e) the
Guarantor currently is, and will be after the transaction contemplated herein,
Solvent (as defined in the Credit Agreement); and (f) if a corporate,
partnership, limited liability company or trust Guarantor, it is duly organized,
validly existing and in good standing under the laws of the state of its
formation and in every other jurisdiction, except where the failure to so
qualify would not have a material adverse effect on the Guarantor, its property,
its financial condition or otherwise.
7. GUARANTOR'S WAIVERS; WAIVER OF SUBROGATION. The Guarantor waives notice of
the incurring of Liabilities, the acceptance of this Guaranty by the Bank;
presentment and demand for payment, protest, notice of protest, notice of
dishonor or non-payment of any instrument evidencing any Liabilities,
acceleration, and intent to accelerate; any right to require suit against the
Borrower or any other party before enforcing this Guaranty; any right to have
security applied before enforcing this Guaranty in any manner; any right to
marshaling of assets; the defense of impairment of collateral; and all other
suretyship defenses. The Guarantor specifically waives notice of any disposition
of any collateral after default or demand, as applicable, and the Guarantor
shall remain liable on the Liabilities notwithstanding any claim that the
disposition of any collateral was not commercially reasonable. The Guarantor
consents and agrees that renewals and extensions of time of payment, surrender,
release, exchange, substitution, dealing with or taking of additional collateral
security, taking or release of any guarantees, abstaining from taking advantage
or realizing upon any collateral security or other guarantees and any and all
other
-2-
<PAGE>
forbearances or indulgences granted by the Bank to the Borrower or any other
party may be made, granted and effected by the Bank without notice to the
Guarantor and without in any manner affecting the Guarantor's liability
hereunder. Any notice to the Guarantor by the Bank at any time shall not imply
that such notice or any further or similar notice was or is required. The
Guarantor also hereby waives any claim, right or remedy which the Guarantor may
now have or hereafter acquire against the Borrower that arises hereunder and/or
from the performance by the Guarantor hereunder including, without limitation,
any claim, remedy or right of subrogation, reimbursement, exoneration,
contribution, indemnification, or participation in any claim, right or remedy of
the Bank against the Borrower or any security which the Bank now has or
hereafter acquires, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise. The Guarantor
acknowledges that the underlying transaction to which the Guaranty relates
concerns the Bank having made or making, now or in the future, loans and
advances, or otherwise extending credit to the Borrower and that the Guarantor
will materially and directly or indirectly receive good and valuable
consideration and/or financial benefit from said underlying transactions.
8. FEES AND EXPENSES; SETOFF RIGHTS. The Guarantor agrees to pay the Bank any
and all costs, expenses and reasonable attorneys' fees (which may include costs
allocated to the Bank's internal Legal Department), paid or incurred by the Bank
in enforcing or endeavoring to enforce this Guaranty, including, without
limitation, any administrative fees such as overnight courier fees, lien search
fees, and filing and recording fees. The Guarantor hereby grants to the Bank a
lien, security interest, and right of setoff as security for all of the
Guarantor's liabilities and obligations to the Bank, whether now existing or
hereafter arising, upon and against all the deposits, credits, collateral and
property of the undersigned, now or hereafter in the possession, custody, or
control of Fleet National Bank, any entity under the control of Fleet Financial
Group, Inc. or any participant of the Bank in the Loan ("Participant") or in
transit to any of them. At any time, without demand or notice, the Bank or any
Participant may set off the same or any part thereof and apply the same to any
liability or obligation of the undersigned even though unmatured and regardless
of the adequacy of any other collateral securing the Borrower's or the
undersigned's liabilities and obligations to you. ANY AND ALL RIGHTS TO REQUIRE
THE BANK OR ANY PARTICIPANT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT OT
ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9. PREFERENCE, ETC. The Guarantor agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of the principal of, interest on, or fees with respect to any of
the Liabilities is rescinded or must otherwise be restored or returned by the
Bank upon insolvency, bankruptcy or reorganization of the Borrower or the
Guarantor, or otherwise, all as though such payment had not been made.
10. CHOICE OF LAW; MODIFICATION; SUCCESSORS AND ASSIGNS. This Guaranty is
executed under and shall be construed in accordance with the local laws
(excluding the conflict of laws rules, so-called) of the Commonwealth of
Massachusetts (the "Governing State"). This writing is intended by the parties
as the final, complete and exclusive statement of the terms of this Guaranty. No
course of dealing between the parties, no usage of the trade and no parol or
extrinsic evidence of any nature shall be used or be relevant to supplement,
explain or modify any term used herein. If any provision of this Guaranty shall
to any extent be held invalid or unenforceable, then only such provision shall
be deemed ineffective and the remainder of this Guaranty shall not be affected.
This Guaranty may not be amended, modified or waived except by a written
instrument describing such amendment, modification or waiver executed by the
Guarantor and the Bank. It may not be assigned by the Guarantor. It shall inure
to the benefit of the Bank and its successors and assigns and shall bind the
Guarantor and the successors, representatives and heirs of the Guarantor.
11. THE GUARANTOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS GUARANTY IS A
PART IS A COMMERCIAL TRANSACTION.
12. THE GUARANTOR AND THE BANK KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
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<PAGE>
INSTITUTED BY OR AGAINST THE GUARANTOR OR THE BANK IN RESPECT OF THIS GUARANTY
OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR
SECURING THIS GUARANTY OR THE LIABILITIES GUARANTEED BY THIS GUARANTY.
13. JURISDICTION AND VENUE. The Guarantor hereby irrevocably consents that any
legal action or proceeding against the Guarantor or any of the Guarantor's
property with respect to any matter arising under or relating to this Guaranty
may be brought in any court of the Governing State, or any Federal Court of the
United States of America located in the Governing State, as the Bank may elect,
and by execution and delivery of this Guaranty, the Guarantor hereby submits to
and accepts with regard to any such action or proceeding, for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Guarantor further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Guarantor at its address
set forth herein. The foregoing, however, shall not limit the Bank's rights to
serve process in any other manner permitted by law or to bring any legal action
or proceeding or to obtain execution of judgment in any other jurisdiction. The
Guarantor hereby irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Guaranty, and hereby further irrevocably waives any claim
that the Governing State is not a convenient forum for any such suit, action or
proceeding.
14. BORROWER'S DISCHARGE. If for any reason any of the Liabilities have been
discharged or have become irrecoverable from the Borrower by operation of law or
for any other reason, the liabilities of the Guarantor under this Guaranty shall
nevertheless remain in full force and effect notwithstanding such discharge or
irrevocability.
15. PROSPECTIVE TERMINATION ONLY. This Guaranty shall not be terminated until
the Bank in its discretion determines that the Liabilities of the Borrower
covered by this Guaranty have been satisfied in full.
16. FINANCIAL STATEMENTS. For so long as this Guaranty is in effect, the
Guarantor shall deliver to the Bank such tax returns, financial statements and
other information about the Guarantor's financial condition as may be required
by the Credit Agreement.
17. NOTICES. Except as otherwise specifically provided for herein, any notice,
demand or communication hereunder shall be given in writing (including facsimile
transmission or telex) and mailed or delivered to each party at its address set
forth above, or, as to each party, at such other address as shall be designated
by such party by a prior notice to the other party in accordance with the terms
of this provision. Any notice to the Guarantor shall be sent to the address
referenced above. All notices hereunder shall be effective upon the earliest to
occur of (i) five (5) business days after such notice is mailed, by registered
or certified mail, postage prepaid (return receipt requested), (ii) upon
delivery by hand (iii) upon delivery if delivered by overnight courier (such
delivery to be evidenced by the courier's records), and (iv) in the case of any
notice or communication by telex or telecopy, on the date when sent.
18. ASSIGNMENTS AND PARTICIPATIONS. The Guarantor agrees that the Bank shall
have the right at all times to sell all or any portion of the Liabilities and
all documents and instruments evidencing or pertaining to the Liabilities
including this Guaranty. In connection therewith, the Guarantor hereby
irrevocably authorizes the Bank to deliver to each such purchaser, participant
and prospective purchaser or participant originals and copies of all loan
documents and instruments and this Guaranty and all financial statements and
other credit and factual data from time to time in the Bank's possession which
relate to the Borrower and/or all guarantors, including the Guarantor. This
Guaranty is expressly declared to be transferable and assignable.
19. INDEMNIFICATION. The Guarantor agrees to defend, indemnify and hold harmless
the Bank and any participants, successors or assigns of the Bank and the
officers, directors, employees and agents of each of them from and against any
and all losses, claims, liabilities, asserted liabilities, costs and expenses,
including, without limitation, costs of litigation and attorneys' fees (both the
allocated costs of internal counsel and outside counsel), incurred in connection
with any and all claims or proceedings for bodily injury, property damage,
abatement or remediation, environmental damage or impairment or any other injury
or damage (including all foreseeable and
-4-
<PAGE>
unforeseeable consequential damage) or any diminution in value of any real
property resulting from or relating, directly or indirectly, to (a) any release,
spilling, leaking, migrating, discharging, escaping, leaching, dumping or
disposing (a "Release") into the environment of any toxic substances or
hazardous wastes (actual or threatened), a threatened Release, the existence or
removal of any toxic substances or hazardous wastes on, into, from, through or
under any real property owned or operated by the Borrower or the Guarantor any
other guarantor of the Liabilities (for purposes of this paragraph, a
"Guarantor") (whether or not such Release was caused by Borrower, any Guarantor,
a tenant, subtenant, prior owner or tenant or any other person and whether or
not the alleged liability is attributable to the handling, storage, generation,
transportation or disposal of toxic substances or hazardous wastes or the mere
presence of such toxic substances or hazardous wastes) or (b) the breach or
alleged breach by Borrower and each Guarantor of any federal, state or local law
or regulation concerning public health, safety or the environment with respect
to any real property owned or operated by the Borrower or any Guarantor and/or
any business conducted thereon.
20. JOINT AND SEVERAL OBLIGATIONS; GENDER. If more than one Guarantor has signed
this Guaranty, the obligations of the Guarantor are joint and several. The term
"Guarantor" and all pronouns referring thereto as used herein shall be construed
in the masculine, feminine, neuter or singular or plural as the context may
require.
21. REPLACEMENT OF GUARANTY. Upon receipt of an affidavit of an officer of the
Bank as to the loss, theft, destruction or mutilation of this Guaranty and, in
the case of any such loss, theft, destruction or mutilation, upon cancellation
of such Guaranty, the undersigned will issue, in lieu thereof, a replacement
Guaranty.
This Guaranty has been executed by the Guarantor, through its duly
authorized representative where required, as of the date above written.
Foilmark Manufacturing Corporation
/s/ Lori S. Westerholm By: /s/ Philip Leibel
- -------------------------------- ---------------------------------------
Witness Its: Treasurer & Chief Financial Officer
-5-
<PAGE>
FLEET NATIONAL BANK GUARANTY
This Guaranty is executed and delivered as of August 6, 1999 by the
undersigned, HoloPak Technologies, Inc., a Delaware corporation, with an address
at 9 Cotters Lane, East Brunswick, New Jersey (the "Guarantor") to FLEET
NATIONAL BANK, a national banking association organized and existing under the
laws of the United States of America, having an office located at One Federal
Street, Boston, Massachusetts (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank and Foilmark, Inc., a Delaware corporation (the
"Borrower") intend to enter into a loan transaction (the "Loan"); and
WHEREAS, the Guarantor is a subsidiary of the Borrower and will derive
a direct and substantial business benefit from the consummation and existence of
the Loan; and
WHEREAS, the Bank has advised the Guarantor that it will not enter into
the aforesaid loan transaction with the Borrower or continue to extend credit to
the Borrower unless, among other matters, the Guarantor guarantees the punctual
payment and performance of all obligations of the Borrower to the Bank as
hereinafter provided, including without limitation, the punctual payment of all
principal, interest and fees; and
WHEREAS, on account of the direct and substantial business benefit to
be derived by the Guarantor from the Loan, the Guarantor is willing and has
agreed to guarantee the payment and performance of the aforesaid obligations, as
hereinafter provided.
NOW, THEREFORE, in consideration of any and all loans, advances,
discounts and extensions of credit made and to be made by the Bank to, for the
account of, or on behalf of the Borrower, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor agrees
as follows:
1. LIABILITIES. "Liabilities" shall mean any and all obligations, indebtedness
and liabilities of any type of the Borrower to the Bank, whether now existing or
hereafter incurred, whether or not contemplated on the date of this Guaranty,
direct or indirect, primary or secondary, absolute or contingent, due or to
become due, whether otherwise guaranteed or secured, and howsoever evidenced or
acquired, including all obligations of the Borrower in respect of letters of
credit and banker's acceptances (excluding, however, indebtedness incurred
primarily for personal, family or household purposes); the obligations of the
Borrower under any agreement evidencing any of the foregoing; expenses and costs
incurred by the Bank in the enforcement of any of its rights with respect
thereto, including without limitation reasonable attorneys' fees and costs
(which may include costs and expenses allocated to the Bank's internal Legal
Department); and any and all costs and expenses incurred by the Bank for
appraisals, environmental site assessments, and examinations and inspections of
books and records and property including, without limitation, the fees and
expenses of all engineers, appraisers and other professionals, or any other
expenses arising out of or with respect to the validity, enforceability,
collection, defense or preservation of this Guaranty.
2. GUARANTY OF LIABILITIES. The obligations of Guarantor hereunder are primary
and not contingent. Guarantor acknowledges and agrees that this Guaranty is
intended to be a contract of suretyship and that the Guarantor has agreed to act
as a surety to the Bank. The Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to the Bank the full, complete and punctual payment
and performance when and as due, whether at the stated date or dates for such
payment, by acceleration or otherwise, each and all of the Liabilities. If for
any reason the Liabilities are unenforceable against the Borrower, then in said
event, this Guaranty shall nevertheless be binding upon the Guarantor to the
same extent as if the Guarantor had been the principal obligor of such
Liability.
3. GUARANTY ABSOLUTE AND UNCONDITIONAL. This is a Guaranty of payment and not
merely of collection. This is a continuing, absolute and unconditional Guaranty
which is subject to no limitations except those expressly
<PAGE>
agreed to by the Guarantor and the Bank in writing. This Guaranty is not
conditioned or contingent upon the genuineness, validity, or enforceability of
the loan documents or other instruments relating to the creation or performance
of the Liabilities or the pursuit by the Bank of any remedies which the Bank has
now or may hereafter have with respect thereto under the loan documents at law,
in equity, or otherwise. Furthermore, the Guarantor shall forthwith pay all sums
due to the Bank hereunder without regard to any counterclaim, setoff, deduction,
or defense of any kind which any party obligated under the loan documents may
have or assert, and without abatement, suspension, deferment, or reduction on
account of any occurrence whatsoever. All payments made in connection with this
Guaranty shall be in lawful money of the United States of America in immediately
available funds.
4. EVENTS OF DEFAULT. Upon the occurrence of any Event of Default as defined in
a certain Amended and Restated Credit Agreement of even date by and among the
Borrower and the Bank (the "Credit Agreement") the liabilities and obligations
of the Guarantor hereunder shall immediately become due and payable at the
election of the Bank without notice or demand. The Bank shall have no obligation
to exercise any right or remedy or to seek any recovery from any party obligated
under the loan documents or to realize upon any collateral prior to proceeding
hereunder against the Guarantor, and likewise the enforcement of the Bank's
rights against the Borrower, any other party to the loan documents, or any
collateral, shall not impair the right of the Bank to enforce this Guaranty
against the Guarantor. The Guarantor expressly agrees that any such action by
the Bank shall never operate as a release or other diminution of the liability
of the Guarantor under this Guaranty.
5. [INTENTIONALLY OMITTED]
6. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. The Guarantor hereby acknowledges
and agrees to be bound by the covenants applicable to the Guarantor as set forth
in Sections 7 and 8 of the Credit Agreement. The Guarantor hereby further
represents and warrants that: (a) neither the execution nor performance of this
Guaranty will violate any indenture, agreement or other instrument to which the
Guarantor is a party, or by which the Guarantor is bound, or be in conflict
with, result in a breach of or constitute with due notice or lapse of time or
both a default under, or except as may be provided by this Guaranty, result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Guarantor pursuant to any
such indenture, agreement or instrument; (b) there is no action suit or
proceeding at law or in equity or by or before any governmental instrumentality
or other agency now pending or, to the knowledge of the Guarantor, threatened or
affecting the Guarantor which, if adversely determined, would have a material
adverse effect on the business, operations, properties, assets or condition,
financial or otherwise, of the Guarantor; (c) the Guarantor is not party to any
agreement or instrument or subject to any restriction adversely affecting the
guarantor's business, properties or assets, operations or conditions, financial
or otherwise; (d) the Guarantor is not in material default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument which the Guarantor is a party; (e) the
Guarantor currently is, and will be after the transaction contemplated herein,
Solvent (as defined in the Credit Agreement); and (f) if a corporate,
partnership, limited liability company or trust Guarantor, it is duly organized,
validly existing and in good standing under the laws of the state of its
formation and in every other jurisdiction, except where the failure to so
qualify would not have a material adverse effect on the Guarantor, its property,
its financial condition or otherwise.
7. GUARANTOR'S WAIVERS; WAIVER OF SUBROGATION. The Guarantor waives notice of
the incurring of Liabilities, the acceptance of this Guaranty by the Bank;
presentment and demand for payment, protest, notice of protest, notice of
dishonor or non-payment of any instrument evidencing any Liabilities,
acceleration, and intent to accelerate; any right to require suit against the
Borrower or any other party before enforcing this Guaranty; any right to have
security applied before enforcing this Guaranty in any manner; any right to
marshaling of assets; the defense of impairment of collateral; and all other
suretyship defenses. The Guarantor specifically waives notice of any disposition
of any collateral after default or demand, as applicable, and the Guarantor
shall remain liable on the Liabilities notwithstanding any claim that the
disposition of any collateral was not commercially reasonable. The Guarantor
consents and agrees that renewals and extensions of time of payment, surrender,
release, exchange, substitution, dealing with or taking of additional collateral
security, taking or release of any guarantees, abstaining from taking advantage
or realizing upon any collateral security or other guarantees and any and all
other forbearances or indulgences granted by the Bank to the Borrower or any
other party may be made, granted and effected by the Bank without notice to the
Guarantor and without in any manner affecting the Guarantor's liability
-2-
<PAGE>
hereunder. Any notice to the Guarantor by the Bank at any time shall not imply
that such notice or any further or similar notice was or is required. The
Guarantor also hereby waives any claim, right or remedy which the Guarantor may
now have or hereafter acquire against the Borrower that arises hereunder and/or
from the performance by the Guarantor hereunder including, without limitation,
any claim, remedy or right of subrogation, reimbursement, exoneration,
contribution, indemnification, or participation in any claim, right or remedy of
the Bank against the Borrower or any security which the Bank now has or
hereafter acquires, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise. The Guarantor
acknowledges that the underlying transaction to which the Guaranty relates
concerns the Bank having made or making, now or in the future, loans and
advances, or otherwise extending credit to the Borrower and that the Guarantor
will materially and directly or indirectly receive good and valuable
consideration and/or financial benefit from said underlying transactions.
8. FEES AND EXPENSES; SETOFF RIGHTS. The Guarantor agrees to pay the Bank any
and all costs, expenses and reasonable attorneys' fees (which may include costs
allocated to the Bank's internal Legal Department), paid or incurred by the Bank
in enforcing or endeavoring to enforce this Guaranty, including, without
limitation, any administrative fees such as overnight courier fees, lien search
fees, and filing and recording fees. The Guarantor hereby grants to the Bank a
lien, security interest, and right of setoff as security for all of the
Guarantor's liabilities and obligations to the Bank, whether now existing or
hereafter arising, upon and against all the deposits, credits, collateral and
property of the undersigned, now or hereafter in the possession, custody, or
control of Fleet National Bank, any entity under the control of Fleet Financial
Group, Inc. or any participant of the Bank in the Loan ("Participant") or in
transit to any of them. At any time, without demand or notice, the Bank or any
Participant may set off the same or any part thereof and apply the same to any
liability or obligation of the undersigned even though unmatured and regardless
of the adequacy of any other collateral securing the Borrower's or the
undersigned's liabilities and obligations to you. ANY AND ALL RIGHTS TO REQUIRE
THE BANK OR ANY PARTICIPANT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT OT
ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9. PREFERENCE, ETC. The Guarantor agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of the principal of, interest on, or fees with respect to any of
the Liabilities is rescinded or must otherwise be restored or returned by the
Bank upon insolvency, bankruptcy or reorganization of the Borrower or the
Guarantor, or otherwise, all as though such payment had not been made.
10. CHOICE OF LAW; MODIFICATION; SUCCESSORS AND ASSIGNS. This Guaranty is
executed under and shall be construed in accordance with the local laws
(excluding the conflict of laws rules, so-called) of the Commonwealth of
Massachusetts (the "Governing State"). This writing is intended by the parties
as the final, complete and exclusive statement of the terms of this Guaranty. No
course of dealing between the parties, no usage of the trade and no parol or
extrinsic evidence of any nature shall be used or be relevant to supplement,
explain or modify any term used herein. If any provision of this Guaranty shall
to any extent be held invalid or unenforceable, then only such provision shall
be deemed ineffective and the remainder of this Guaranty shall not be affected.
This Guaranty may not be amended, modified or waived except by a written
instrument describing such amendment, modification or waiver executed by the
Guarantor and the Bank. It may not be assigned by the Guarantor. It shall inure
to the benefit of the Bank and its successors and assigns and shall bind the
Guarantor and the successors, representatives and heirs of the Guarantor.
11. THE GUARANTOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS GUARANTY IS A
PART IS A COMMERCIAL TRANSACTION.
12. THE GUARANTOR AND THE BANK KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
INSTITUTED BY OR AGAINST THE GUARANTOR OR THE BANK IN RESPECT OF THIS GUARANTY
OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT
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<PAGE>
EVIDENCING, GOVERNING OR SECURING THIS GUARANTY OR THE LIABILITIES GUARANTEED BY
THIS GUARANTY.
13. JURISDICTION AND VENUE. The Guarantor hereby irrevocably consents that any
legal action or proceeding against the Guarantor or any of the Guarantor's
property with respect to any matter arising under or relating to this Guaranty
may be brought in any court of the Governing State, or any Federal Court of the
United States of America located in the Governing State, as the Bank may elect,
and by execution and delivery of this Guaranty, the Guarantor hereby submits to
and accepts with regard to any such action or proceeding, for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Guarantor further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Guarantor at its address
set forth herein. The foregoing, however, shall not limit the Bank's rights to
serve process in any other manner permitted by law or to bring any legal action
or proceeding or to obtain execution of judgment in any other jurisdiction. The
Guarantor hereby irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Guaranty, and hereby further irrevocably waives any claim
that the Governing State is not a convenient forum for any such suit, action or
proceeding.
14. BORROWER'S DISCHARGE. If for any reason any of the Liabilities have been
discharged or have become irrecoverable from the Borrower by operation of law or
for any other reason, the liabilities of the Guarantor under this Guaranty shall
nevertheless remain in full force and effect notwithstanding such discharge or
irrevocability.
15. PROSPECTIVE TERMINATION ONLY. This Guaranty shall not be terminated until
the Bank in its discretion determines that the Liabilities of the Borrower
covered by this Guaranty have been satisfied in full.
16. FINANCIAL STATEMENTS. For so long as this Guaranty is in effect, the
Guarantor shall deliver to the Bank such tax returns, financial statements and
other information about the Guarantor's financial condition may be required by
the Credit Agreement.
17. NOTICES. Except as otherwise specifically provided for herein, any notice,
demand or communication hereunder shall be given in writing (including facsimile
transmission or telex) and mailed or delivered to each party at its address set
forth above, or, as to each party, at such other address as shall be designated
by such party by a prior notice to the other party in accordance with the terms
of this provision. Any notice to the Guarantor shall be sent to the address
referenced above. All notices hereunder shall be effective upon the earliest to
occur of (i) five (5) business days after such notice is mailed, by registered
or certified mail, postage prepaid (return receipt requested), (ii) upon
delivery by hand (iii) upon delivery if delivered by overnight courier (such
delivery to be evidenced by the courier's records), and (iv) in the case of any
notice or communication by telex or telecopy, on the date when sent.
18. ASSIGNMENTS AND PARTICIPATIONS. The Guarantor agrees that the Bank shall
have the right at all times to sell all or any portion of the Liabilities and
all documents and instruments evidencing or pertaining to the Liabilities
including this Guaranty. In connection therewith, the Guarantor hereby
irrevocably authorizes the Bank to deliver to each such purchaser, participant
and prospective purchaser or participant originals and copies of all loan
documents and instruments and this Guaranty and all financial statements and
other credit and factual data from time to time in the Bank's possession which
relate to the Borrower and/or all guarantors, including the Guarantor. This
Guaranty is expressly declared to be transferable and assignable.
19. INDEMNIFICATION. The Guarantor agrees to defend, indemnify and hold harmless
the Bank and any participants, successors or assigns of the Bank and the
officers, directors, employees and agents of each of them from and against any
and all losses, claims, liabilities, asserted liabilities, costs and expenses,
including, without limitation, costs of litigation and attorneys' fees (both the
allocated costs of internal counsel and outside counsel), incurred in connection
with any and all claims or proceedings for bodily injury, property damage,
abatement or remediation, environmental damage or impairment or any other injury
or damage (including all foreseeable and unforeseeable consequential damage) or
any diminution in value of any real property resulting from or relating,
directly or indirectly, to (a) any release, spilling, leaking, migrating,
discharging, escaping, leaching, dumping or
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<PAGE>
disposing (a "Release") into the environment of any toxic substances or
hazardous wastes (actual or threatened), a threatened Release, the existence or
removal of any toxic substances or hazardous wastes on, into, from, through or
under any real property owned or operated by the Borrower or the Guarantor any
other guarantor of the Liabilities (for purposes of this paragraph, a
"Guarantor") (whether or not such Release was caused by Borrower, any Guarantor,
a tenant, subtenant, prior owner or tenant or any other person and whether or
not the alleged liability is attributable to the handling, storage, generation,
transportation or disposal of toxic substances or hazardous wastes or the mere
presence of such toxic substances or hazardous wastes) or (b) the breach or
alleged breach by Borrower and each Guarantor of any federal, state or local law
or regulation concerning public health, safety or the environment with respect
to any real property owned or operated by the Borrower or any Guarantor and/or
any business conducted thereon.
20. JOINT AND SEVERAL OBLIGATIONS; GENDER. If more than one Guarantor has signed
this Guaranty, the obligations of the Guarantor are joint and several. The term
"Guarantor" and all pronouns referring thereto as used herein shall be construed
in the masculine, feminine, neuter or singular or plural as the context may
require.
21. REPLACEMENT OF GUARANTY. Upon receipt of an affidavit of an officer of the
Bank as to the loss, theft, destruction or mutilation of this Guaranty and, in
the case of any such loss, theft, destruction or mutilation, upon cancellation
of such Guaranty, the undersigned will issue, in lieu thereof, a replacement
Guaranty.
This Guaranty has been executed by the Guarantor, through its duly
authorized representative where required, as of the date above written.
HoloPak Technologies, Inc.
/s/ Lori S. Westerholm By: /s/ Philip Leibel
- ------------------------------- ----------------------------------------
Witness Its: Treasurer & Chief Financial Officer
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<PAGE>
FLEET NATIONAL BANK GUARANTY
This Guaranty is executed and delivered as of August 6, 1999 by the
undersigned, Foilmark Foreign Sales Corporation, a Barbados corporation, with an
address at Christ Church (the "Guarantor") to FLEET NATIONAL BANK, a national
banking association organized and existing under the laws of the United States
of America, having an office located at One Federal Street, Boston,
Massachusetts (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank and Foilmark, Inc., a Delaware corporation (the
"Borrower") intend to enter into a loan transaction (the "Loan"); and
WHEREAS, the Guarantor is a subsidiary of the Borrower and will derive
a direct and substantial business benefit from the consummation and existence of
the Loan; and
WHEREAS, the Bank has advised the Guarantor that it will not enter into
the aforesaid loan transaction with the Borrower or continue to extend credit to
the Borrower unless, among other matters, the Guarantor guarantees the punctual
payment and performance of all obligations of the Borrower to the Bank as
hereinafter provided, including without limitation, the punctual payment of all
principal, interest and fees; and
WHEREAS, on account of the direct and substantial business benefit to
be derived by the Guarantor from the Loan, the Guarantor is willing and has
agreed to guarantee the payment and performance of the aforesaid obligations, as
hereinafter provided.
NOW, THEREFORE, in consideration of any and all loans, advances,
discounts and extensions of credit made and to be made by the Bank to, for the
account of, or on behalf of the Borrower, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor agrees
as follows:
1. LIABILITIES. "Liabilities" shall mean any and all obligations, indebtedness
and liabilities of any type of the Borrower to the Bank, whether now existing or
hereafter incurred, whether or not contemplated on the date of this Guaranty,
direct or indirect, primary or secondary, absolute or contingent, due or to
become due, whether otherwise guaranteed or secured, and howsoever evidenced or
acquired, including all obligations of the Borrower in respect of letters of
credit and banker's acceptances (excluding, however, indebtedness incurred
primarily for personal, family or household purposes); the obligations of the
Borrower under any agreement evidencing any of the foregoing; expenses and costs
incurred by the Bank in the enforcement of any of its rights with respect
thereto, including without limitation reasonable attorneys' fees and costs
(which may include costs and expenses allocated to the Bank's internal Legal
Department); and any and all costs and expenses incurred by the Bank for
appraisals, environmental site assessments, and examinations and inspections of
books and records and property including, without limitation, the fees and
expenses of all engineers, appraisers and other professionals, or any other
expenses arising out of or with respect to the validity, enforceability,
collection, defense or preservation of this Guaranty.
2. GUARANTY OF LIABILITIES. The obligations of Guarantor hereunder are primary
and not contingent. Guarantor acknowledges and agrees that this Guaranty is
intended to be a contract of suretyship and that the Guarantor has agreed to act
as a surety to the Bank. The Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to the Bank the full, complete and punctual payment
and performance when and as due, whether at the stated date or dates for such
payment, by acceleration or otherwise, each and all of the Liabilities. If for
any reason the Liabilities are unenforceable against the Borrower, then in said
event, this Guaranty shall nevertheless be binding upon the Guarantor to the
same extent as if the Guarantor had been the principal obligor of such
Liability. To the degree any Loan proceeds are used to purchase equipment to be
owned by the Guarantor, upon request by the Bank, the Guarantor shall execute a
Security Agreement and Uniform Commercial Code Financing Statements appropriate
to such transaction.
<PAGE>
3. GUARANTY ABSOLUTE AND UNCONDITIONAL. This is a Guaranty of payment and not
merely of collection. This is a continuing, absolute and unconditional Guaranty
which is subject to no limitations except those expressly agreed to by the
Guarantor and the Bank in writing. This Guaranty is not conditioned or
contingent upon the genuineness, validity, or enforceability of the loan
documents or other instruments relating to the creation or performance of the
Liabilities or the pursuit by the Bank of any remedies which the Bank has now or
may hereafter have with respect thereto under the loan documents at law, in
equity, or otherwise. Furthermore, the Guarantor shall forthwith pay all sums
due to the Bank hereunder without regard to any counterclaim, setoff, deduction,
or defense of any kind which any party obligated under the loan documents may
have or assert, and without abatement, suspension, deferment, or reduction on
account of any occurrence whatsoever. All payments made in connection with this
Guaranty shall be in lawful money of the United States of America in immediately
available funds.
4. EVENTS OF DEFAULT. Upon the occurrence of any Event of Default as defined in
a certain Amended and Restated Credit Agreement of even date by and among the
Borrower and the Bank (the "Credit Agreement") the liabilities and obligations
of the Guarantor hereunder shall immediately become due and payable at the
election of the Bank without notice or demand. The Bank shall have no obligation
to exercise any right or remedy or to seek any recovery from any party obligated
under the loan documents or to realize upon any collateral prior to proceeding
hereunder against the Guarantor, and likewise the enforcement of the Bank's
rights against the Borrower, any other party to the loan documents, or any
collateral, shall not impair the right of the Bank to enforce this Guaranty
against the Guarantor. The Guarantor expressly agrees that any such action by
the Bank shall never operate as a release or other diminution of the liability
of the Guarantor under this Guaranty.
5. [INTENTIONALLY OMITTED]
6. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. The Guarantor hereby acknowledges
and agrees to be bound by the covenants applicable to the Guarantor as set forth
in Sections 7 and 8 of the Credit Agreement. The Guarantor hereby further
represents and warrants that: (a) neither the execution nor performance of this
Guaranty will violate any indenture, agreement or other instrument to which the
Guarantor is a party, or by which the Guarantor is bound, or be in conflict
with, result in a breach of or constitute with due notice or lapse of time or
both a default under, or except as may be provided by this Guaranty, result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Guarantor pursuant to any
such indenture, agreement or instrument; (b) there is no action suit or
proceeding at law or in equity or by or before any governmental instrumentality
or other agency now pending or, to the knowledge of the Guarantor, threatened or
affecting the Guarantor which, if adversely determined, would have a material
adverse effect on the business, operations, properties, assets or condition,
financial or otherwise, of the Guarantor; (c) the Guarantor is not party to any
agreement or instrument or subject to any restriction adversely affecting the
guarantor's business, properties or assets, operations or conditions, financial
or otherwise; (d) the Guarantor is not in material default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument which the Guarantor is a party; (e) the
Guarantor currently is, and will be after the transaction contemplated herein,
Solvent (as defined in the Credit Agreement); and (f) if a corporate,
partnership, limited liability company or trust Guarantor, it is duly organized,
validly existing and in good standing under the laws of the state of its
formation and in every other jurisdiction, except where the failure to so
qualify would not have a material adverse effect on the Guarantor, its property,
its financial condition or otherwise.
7. GUARANTOR'S WAIVERS; WAIVER OF SUBROGATION. The Guarantor waives notice of
the incurring of Liabilities, the acceptance of this Guaranty by the Bank;
presentment and demand for payment, protest, notice of protest, notice of
dishonor or non-payment of any instrument evidencing any Liabilities,
acceleration, and intent to accelerate; any right to require suit against the
Borrower or any other party before enforcing this Guaranty; any right to have
security applied before enforcing this Guaranty in any manner; any right to
marshaling of assets; the defense of impairment of collateral; and all other
suretyship defenses. The Guarantor specifically waives notice of any disposition
of any collateral after default or demand, as applicable, and the Guarantor
shall remain liable on the Liabilities notwithstanding any claim that the
disposition of any collateral was not commercially reasonable. The Guarantor
consents and agrees that renewals and extensions of time of payment, surrender,
release, exchange, substitution, dealing with or taking of additional collateral
security, taking or release of any guarantees, abstaining from taking advantage
or realizing upon any collateral security or other guarantees and any and all
other
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<PAGE>
forbearances or indulgences granted by the Bank to the Borrower or any other
party may be made, granted and effected by the Bank without notice to the
Guarantor and without in any manner affecting the Guarantor's liability
hereunder. Any notice to the Guarantor by the Bank at any time shall not imply
that such notice or any further or similar notice was or is required. The
Guarantor also hereby waives any claim, right or remedy which the Guarantor may
now have or hereafter acquire against the Borrower that arises hereunder and/or
from the performance by the Guarantor hereunder including, without limitation,
any claim, remedy or right of subrogation, reimbursement, exoneration,
contribution, indemnification, or participation in any claim, right or remedy of
the Bank against the Borrower or any security which the Bank now has or
hereafter acquires, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise. The Guarantor
acknowledges that the underlying transaction to which the Guaranty relates
concerns the Bank having made or making, now or in the future, loans and
advances, or otherwise extending credit to the Borrower and that the Guarantor
will materially and directly or indirectly receive good and valuable
consideration and/or financial benefit from said underlying transactions.
8. FEES AND EXPENSES; SETOFF RIGHTS. The Guarantor agrees to pay the Bank any
and all costs, expenses and reasonable attorneys' fees (which may include costs
allocated to the Bank's internal Legal Department), paid or incurred by the Bank
in enforcing or endeavoring to enforce this Guaranty, including, without
limitation, any administrative fees such as overnight courier fees, lien search
fees, and filing and recording fees. The Guarantor hereby grants to the Bank a
lien, security interest, and right of setoff as security for all of the
Guarantor's liabilities and obligations to the Bank, whether now existing or
hereafter arising, upon and against all the deposits, credits, collateral and
property of the undersigned, now or hereafter in the possession, custody, or
control of Fleet National Bank, any entity under the control of Fleet Financial
Group, Inc. or any participant of the Bank in the Loan ("Participant") or in
transit to any of them. At any time, without demand or notice, the Bank or any
Participant may set off the same or any part thereof and apply the same to any
liability or obligation of the undersigned even though unmatured and regardless
of the adequacy of any other collateral securing the Borrower's or the
undersigned's liabilities and obligations to you. ANY AND ALL RIGHTS TO REQUIRE
THE BANK OR ANY PARTICIPANT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT OT
ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9. PREFERENCE, ETC. The Guarantor agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of the principal of, interest on, or fees with respect to any of
the Liabilities is rescinded or must otherwise be restored or returned by the
Bank upon insolvency, bankruptcy or reorganization of the Borrower or the
Guarantor, or otherwise, all as though such payment had not been made.
10. CHOICE OF LAW; MODIFICATION; SUCCESSORS AND ASSIGNS. This Guaranty is
executed under and shall be construed in accordance with the local laws
(excluding the conflict of laws rules, so-called) of the Commonwealth of
Massachusetts (the "Governing State"). This writing is intended by the parties
as the final, complete and exclusive statement of the terms of this Guaranty. No
course of dealing between the parties, no usage of the trade and no parol or
extrinsic evidence of any nature shall be used or be relevant to supplement,
explain or modify any term used herein. If any provision of this Guaranty shall
to any extent be held invalid or unenforceable, then only such provision shall
be deemed ineffective and the remainder of this Guaranty shall not be affected.
This Guaranty may not be amended, modified or waived except by a written
instrument describing such amendment, modification or waiver executed by the
Guarantor and the Bank. It may not be assigned by the Guarantor. It shall inure
to the benefit of the Bank and its successors and assigns and shall bind the
Guarantor and the successors, representatives and heirs of the Guarantor.
11. THE GUARANTOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS GUARANTY IS A
PART IS A COMMERCIAL TRANSACTION.
12. THE GUARANTOR AND THE BANK KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
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<PAGE>
INSTITUTED BY OR AGAINST THE GUARANTOR OR THE BANK IN RESPECT OF THIS GUARANTY
OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR
SECURING THIS GUARANTY OR THE LIABILITIES GUARANTEED BY THIS GUARANTY.
13. JURISDICTION AND VENUE. The Guarantor hereby irrevocably consents that any
legal action or proceeding against the Guarantor or any of the Guarantor's
property with respect to any matter arising under or relating to this Guaranty
may be brought in any court of the Governing State, or any Federal Court of the
United States of America located in the Governing State, as the Bank may elect,
and by execution and delivery of this Guaranty, the Guarantor hereby submits to
and accepts with regard to any such action or proceeding, for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Guarantor further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Guarantor at its address
set forth herein. The foregoing, however, shall not limit the Bank's rights to
serve process in any other manner permitted by law or to bring any legal action
or proceeding or to obtain execution of judgment in any other jurisdiction. The
Guarantor hereby irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Guaranty, and hereby further irrevocably waives any claim
that the Governing State is not a convenient forum for any such suit, action or
proceeding.
14. BORROWER'S DISCHARGE. If for any reason any of the Liabilities have been
discharged or have become irrecoverable from the Borrower by operation of law or
for any other reason, the liabilities of the Guarantor under this Guaranty shall
nevertheless remain in full force and effect notwithstanding such discharge or
irrevocability.
15. PROSPECTIVE TERMINATION ONLY. This Guaranty shall not be terminated until
the Bank in its discretion determines that the Liabilities of the Borrower
covered by this Guaranty have been satisfied in full.
16. FINANCIAL STATEMENTS. For so long as this Guaranty is in effect, the
Guarantor shall deliver to the Bank such tax returns, financial statements and
other information about the Guarantor's financial condition as may be required
by the Credit Agreement.
17. NOTICES. Except as otherwise specifically provided for herein, any notice,
demand or communication hereunder shall be given in writing (including facsimile
transmission or telex) and mailed or delivered to each party at its address set
forth above, or, as to each party, at such other address as shall be designated
by such party by a prior notice to the other party in accordance with the terms
of this provision. Any notice to the Guarantor shall be sent to the address
referenced above. All notices hereunder shall be effective upon the earliest to
occur of (i) five (5) business days after such notice is mailed, by registered
or certified mail, postage prepaid (return receipt requested), (ii) upon
delivery by hand (iii) upon delivery if delivered by overnight courier (such
delivery to be evidenced by the courier's records), and (iv) in the case of any
notice or communication by telex or telecopy, on the date when sent.
18. ASSIGNMENTS AND PARTICIPATIONS. The Guarantor agrees that the Bank shall
have the right at all times to sell all or any portion of the Liabilities and
all documents and instruments evidencing or pertaining to the Liabilities
including this Guaranty. In connection therewith, the Guarantor hereby
irrevocably authorizes the Bank to deliver to each such purchaser, participant
and prospective purchaser or participant originals and copies of all loan
documents and instruments and this Guaranty and all financial statements and
other credit and factual data from time to time in the Bank's possession which
relate to the Borrower and/or all guarantors, including the Guarantor. This
Guaranty is expressly declared to be transferable and assignable.
19. INDEMNIFICATION. The Guarantor agrees to defend, indemnify and hold harmless
the Bank and any participants, successors or assigns of the Bank and the
officers, directors, employees and agents of each of them from and against any
and all losses, claims, liabilities, asserted liabilities, costs and expenses,
including, without limitation, costs of litigation and attorneys' fees (both the
allocated costs of internal counsel and outside counsel), incurred in connection
with any and all claims or proceedings for bodily injury, property damage,
abatement or remediation, environmental damage or impairment or any other injury
or damage (including all foreseeable and
-4-
<PAGE>
unforeseeable consequential damage) or any diminution in value of any real
property resulting from or relating, directly or indirectly, to (a) any release,
spilling, leaking, migrating, discharging, escaping, leaching, dumping or
disposing (a "Release") into the environment of any toxic substances or
hazardous wastes (actual or threatened), a threatened Release, the existence or
removal of any toxic substances or hazardous wastes on, into, from, through or
under any real property owned or operated by the Borrower or the Guarantor any
other guarantor of the Liabilities (for purposes of this paragraph, a
"Guarantor") (whether or not such Release was caused by Borrower, any Guarantor,
a tenant, subtenant, prior owner or tenant or any other person and whether or
not the alleged liability is attributable to the handling, storage, generation,
transportation or disposal of toxic substances or hazardous wastes or the mere
presence of such toxic substances or hazardous wastes) or (b) the breach or
alleged breach by Borrower and each Guarantor of any federal, state or local law
or regulation concerning public health, safety or the environment with respect
to any real property owned or operated by the Borrower or any Guarantor and/or
any business conducted thereon.
20. JOINT AND SEVERAL OBLIGATIONS; GENDER. If more than one Guarantor has signed
this Guaranty, the obligations of the Guarantor are joint and several. The term
"Guarantor" and all pronouns referring thereto as used herein shall be construed
in the masculine, feminine, neuter or singular or plural as the context may
require.
21. REPLACEMENT OF GUARANTY. Upon receipt of an affidavit of an officer of the
Bank as to the loss, theft, destruction or mutilation of this Guaranty and, in
the case of any such loss, theft, destruction or mutilation, upon cancellation
of such Guaranty, the undersigned will issue, in lieu thereof, a replacement
Guaranty.
This Guaranty has been executed by the Guarantor, through its duly
authorized representative where required, as of the date above written.
Foilmark Foreign Sales Corporation
/s/ Lori S. Westerholm By: /s/ Philip Leibel
- ------------------------------ ------------------------------------
Witness Its: Treasurer
-5-
<PAGE>
FLEET NATIONAL BANK GUARANTY
This Guaranty is executed and delivered as of August 6, 1999 by the
undersigned, 2945-5469 Quebec, Inc., a Canadian corporation, with an address at
417 Place de Louvain, Montreal, Quebec (the "Guarantor") to FLEET NATIONAL BANK,
a national banking association organized and existing under the laws of the
United States of America, having an office located at One Federal Street,
Boston, Massachusetts (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank and Foilmark, Inc., a Delaware corporation (the
"Borrower") intend to enter into a loan transaction (the "Loan"); and
WHEREAS, the Guarantor is a subsidiary of HoloPak Technologies, Inc., a
Delaware corporation, which is a subsidiary of the Borrower, and will derive a
direct and substantial business benefit from the consummation and existence of
the Loan; and
WHEREAS, the Bank has advised the Guarantor that it will not enter into
the aforesaid loan transaction with the Borrower or continue to extend credit to
the Borrower unless, among other matters, the Guarantor guarantees the punctual
payment and performance of all obligations of the Borrower to the Bank as
hereinafter provided, including without limitation, the punctual payment of all
principal, interest and fees; and
WHEREAS, on account of the direct and substantial business benefit to
be derived by the Guarantor from the Loan, the Guarantor is willing and has
agreed to guarantee the payment and performance of the aforesaid obligations, as
hereinafter provided.
NOW, THEREFORE, in consideration of any and all loans, advances,
discounts and extensions of credit made and to be made by the Bank to, for the
account of, or on behalf of the Borrower, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor agrees
as follows:
1. LIABILITIES. "Liabilities" shall mean any and all obligations, indebtedness
and liabilities of any type of the Borrower to the Bank, whether now existing or
hereafter incurred, whether or not contemplated on the date of this Guaranty,
direct or indirect, primary or secondary, absolute or contingent, due or to
become due, whether otherwise guaranteed or secured, and howsoever evidenced or
acquired, including all obligations of the Borrower in respect of letters of
credit and banker's acceptances (excluding, however, indebtedness incurred
primarily for personal, family or household purposes); the obligations of the
Borrower under any agreement evidencing any of the foregoing; expenses and costs
incurred by the Bank in the enforcement of any of its rights with respect
thereto, including without limitation reasonable attorneys' fees and costs
(which may include costs and expenses allocated to the Bank's internal Legal
Department); and any and all costs and expenses incurred by the Bank for
appraisals, environmental site assessments, and examinations and inspections of
books and records and property including, without limitation, the fees and
expenses of all engineers, appraisers and other professionals, or any other
expenses arising out of or with respect to the validity, enforceability,
collection, defense or preservation of this Guaranty.
2. GUARANTY OF LIABILITIES. The obligations of Guarantor hereunder are primary
and not contingent. Guarantor acknowledges and agrees that this Guaranty is
intended to be a contract of suretyship and that the Guarantor has agreed to act
as a surety to the Bank. The Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to the Bank the full, complete and punctual payment
and performance when and as due, whether at the stated date or dates for such
payment, by acceleration or otherwise, each and all of the Liabilities. If for
any reason the Liabilities are unenforceable against the Borrower, then in said
event, this Guaranty shall nevertheless be binding upon the Guarantor to the
same extent as if the Guarantor had been the principal obligor of such
Liability. To the degree any Loan proceeds are used to purchase equipment to be
owned by the Guarantor, upon request by the Bank, the Guarantor shall execute a
Security Agreement and Uniform Commercial Code Financing Statements appropriate
to such transaction.
<PAGE>
3. GUARANTY ABSOLUTE AND UNCONDITIONAL. This is a Guaranty of payment and not
merely of collection. This is a continuing, absolute and unconditional Guaranty
which is subject to no limitations except those expressly agreed to by the
Guarantor and the Bank in writing. This Guaranty is not conditioned or
contingent upon the genuineness, validity, or enforceability of the loan
documents or other instruments relating to the creation or performance of the
Liabilities or the pursuit by the Bank of any remedies which the Bank has now or
may hereafter have with respect thereto under the loan documents at law, in
equity, or otherwise. Furthermore, the Guarantor shall forthwith pay all sums
due to the Bank hereunder without regard to any counterclaim, setoff, deduction,
or defense of any kind which any party obligated under the loan documents may
have or assert, and without abatement, suspension, deferment, or reduction on
account of any occurrence whatsoever. All payments made in connection with this
Guaranty shall be in lawful money of the United States of America in immediately
available funds.
4. EVENTS OF DEFAULT. Upon the occurrence of any Event of Default as defined in
a certain Amended and Restated Credit Agreement of even date by and among the
Borrower and the Bank (the "Credit Agreement") the liabilities and obligations
of the Guarantor hereunder shall immediately become due and payable at the
election of the Bank without notice or demand. The Bank shall have no obligation
to exercise any right or remedy or to seek any recovery from any party obligated
under the loan documents or to realize upon any collateral prior to proceeding
hereunder against the Guarantor, and likewise the enforcement of the Bank's
rights against the Borrower, any other party to the loan documents, or any
collateral, shall not impair the right of the Bank to enforce this Guaranty
against the Guarantor. The Guarantor expressly agrees that any such action by
the Bank shall never operate as a release or other diminution of the liability
of the Guarantor under this Guaranty.
5. [INTENTIONALLY OMITTED]
6. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. The Guarantor hereby acknowledges
and agrees to be bound by the covenants applicable to the Guarantor as set forth
in Sections 7 and 8 of the Credit Agreement. The Guarantor hereby further
represents and warrants that: (a) neither the execution nor performance of this
Guaranty will violate any indenture, agreement or other instrument to which the
Guarantor is a party, or by which the Guarantor is bound, or be in conflict
with, result in a breach of or constitute with due notice or lapse of time or
both a default under, or except as may be provided by this Guaranty, result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Guarantor pursuant to any
such indenture, agreement or instrument; (b) there is no action suit or
proceeding at law or in equity or by or before any governmental instrumentality
or other agency now pending or, to the knowledge of the Guarantor, threatened or
affecting the Guarantor which, if adversely determined, would have a material
adverse effect on the business, operations, properties, assets or condition,
financial or otherwise, of the Guarantor; (c) the Guarantor is not party to any
agreement or instrument or subject to any restriction adversely affecting the
guarantor's business, properties or assets, operations or conditions, financial
or otherwise; (d) the Guarantor is not in material default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument which the Guarantor is a party; (e) the
Guarantor currently is, and will be after the transaction contemplated herein,
Solvent (as defined in the Credit Agreement); and (f) if a corporate,
partnership, limited liability company or trust Guarantor, it is duly organized,
validly existing and in good standing under the laws of the state of its
formation and in every other jurisdiction, except where the failure to so
qualify would not have a material adverse effect on the Guarantor, its property,
its financial condition or otherwise.
7. GUARANTOR'S WAIVERS; WAIVER OF SUBROGATION. The Guarantor waives notice of
the incurring of Liabilities, the acceptance of this Guaranty by the Bank;
presentment and demand for payment, protest, notice of protest, notice of
dishonor or non-payment of any instrument evidencing any Liabilities,
acceleration, and intent to accelerate; any right to require suit against the
Borrower or any other party before enforcing this Guaranty; any right to have
security applied before enforcing this Guaranty in any manner; any right to
marshaling of assets; the defense of impairment of collateral; and all other
suretyship defenses. The Guarantor specifically waives notice of any disposition
of any collateral after default or demand, as applicable, and the Guarantor
shall remain liable on the Liabilities notwithstanding any claim that the
disposition of any collateral was not commercially reasonable. The Guarantor
consents and agrees that renewals and extensions of time of payment, surrender,
release, exchange, substitution, dealing with or taking of additional collateral
security, taking or release of any guarantees, abstaining
-2-
<PAGE>
from taking advantage or realizing upon any collateral security or other
guarantees and any and all other forbearances or indulgences granted by the Bank
to the Borrower or any other party may be made, granted and effected by the Bank
without notice to the Guarantor and without in any manner affecting the
Guarantor's liability hereunder. Any notice to the Guarantor by the Bank at any
time shall not imply that such notice or any further or similar notice was or is
required. The Guarantor also hereby waives any claim, right or remedy which the
Guarantor may now have or hereafter acquire against the Borrower that arises
hereunder and/or from the performance by the Guarantor hereunder including,
without limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim, right
or remedy of the Bank against the Borrower or any security which the Bank now
has or hereafter acquires, whether or not such claim, right or remedy arises in
equity, under contract, by statute, under common law or otherwise. The Guarantor
acknowledges that the underlying transaction to which the Guaranty relates
concerns the Bank having made or making, now or in the future, loans and
advances, or otherwise extending credit to the Borrower and that the Guarantor
will materially and directly or indirectly receive good and valuable
consideration and/or financial benefit from said underlying transactions.
8. FEES AND EXPENSES; SETOFF RIGHTS. The Guarantor agrees to pay the Bank any
and all costs, expenses and reasonable attorneys' fees (which may include costs
allocated to the Bank's internal Legal Department), paid or incurred by the Bank
in enforcing or endeavoring to enforce this Guaranty, including, without
limitation, any administrative fees such as overnight courier fees, lien search
fees, and filing and recording fees. The Guarantor hereby grants to the Bank a
lien, security interest, and right of setoff as security for all of the
Guarantor's liabilities and obligations to the Bank, whether now existing or
hereafter arising, upon and against all the deposits, credits, collateral and
property of the undersigned, now or hereafter in the possession, custody, or
control of Fleet National Bank, any entity under the control of Fleet Financial
Group, Inc. or any participant of the Bank in the Loan ("Participant") or in
transit to any of them. At any time, without demand or notice, the Bank or any
Participant may set off the same or any part thereof and apply the same to any
liability or obligation of the undersigned even though unmatured and regardless
of the adequacy of any other collateral securing the Borrower's or the
undersigned's liabilities and obligations to you. ANY AND ALL RIGHTS TO REQUIRE
THE BANK OR ANY PARTICIPANT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT OT
ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9. PREFERENCE, ETC. The Guarantor agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of the principal of, interest on, or fees with respect to any of
the Liabilities is rescinded or must otherwise be restored or returned by the
Bank upon insolvency, bankruptcy or reorganization of the Borrower or the
Guarantor, or otherwise, all as though such payment had not been made.
10. CHOICE OF LAW; MODIFICATION; SUCCESSORS AND ASSIGNS. This Guaranty is
executed under and shall be construed in accordance with the local laws
(excluding the conflict of laws rules, so-called) of the Commonwealth of
Massachusetts (the "Governing State"). This writing is intended by the parties
as the final, complete and exclusive statement of the terms of this Guaranty. No
course of dealing between the parties, no usage of the trade and no parol or
extrinsic evidence of any nature shall be used or be relevant to supplement,
explain or modify any term used herein. If any provision of this Guaranty shall
to any extent be held invalid or unenforceable, then only such provision shall
be deemed ineffective and the remainder of this Guaranty shall not be affected.
This Guaranty may not be amended, modified or waived except by a written
instrument describing such amendment, modification or waiver executed by the
Guarantor and the Bank. It may not be assigned by the Guarantor. It shall inure
to the benefit of the Bank and its successors and assigns and shall bind the
Guarantor and the successors, representatives and heirs of the Guarantor.
11. THE GUARANTOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS GUARANTY IS A
PART IS A COMMERCIAL TRANSACTION.
-3-
<PAGE>
12. THE GUARANTOR AND THE BANK KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
INSTITUTED BY OR AGAINST THE GUARANTOR OR THE BANK IN RESPECT OF THIS GUARANTY
OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR
SECURING THIS GUARANTY OR THE LIABILITIES GUARANTEED BY THIS GUARANTY.
13. JURISDICTION AND VENUE. The Guarantor hereby irrevocably consents that any
legal action or proceeding against the Guarantor or any of the Guarantor's
property with respect to any matter arising under or relating to this Guaranty
may be brought in any court of the Governing State, or any Federal Court of the
United States of America located in the Governing State, as the Bank may elect,
and by execution and delivery of this Guaranty, the Guarantor hereby submits to
and accepts with regard to any such action or proceeding, for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Guarantor further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Guarantor at its address
set forth herein. The foregoing, however, shall not limit the Bank's rights to
serve process in any other manner permitted by law or to bring any legal action
or proceeding or to obtain execution of judgment in any other jurisdiction. The
Guarantor hereby irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Guaranty, and hereby further irrevocably waives any claim
that the Governing State is not a convenient forum for any such suit, action or
proceeding.
14. BORROWER'S DISCHARGE. If for any reason any of the Liabilities have been
discharged or have become irrecoverable from the Borrower by operation of law or
for any other reason, the liabilities of the Guarantor under this Guaranty shall
nevertheless remain in full force and effect notwithstanding such discharge or
irrevocability.
15. PROSPECTIVE TERMINATION ONLY. This Guaranty shall not be terminated until
the Bank in its discretion determines that the Liabilities of the Borrower
covered by this Guaranty have been satisfied in full.
16. FINANCIAL STATEMENTS. For so long as this Guaranty is in effect, the
Guarantor shall deliver to the Bank such tax returns, financial statements and
other information about the Guarantor's financial condition as may be required
by the Credit Agreement.
17. NOTICES. Except as otherwise specifically provided for herein, any notice,
demand or communication hereunder shall be given in writing (including facsimile
transmission or telex) and mailed or delivered to each party at its address set
forth above, or, as to each party, at such other address as shall be designated
by such party by a prior notice to the other party in accordance with the terms
of this provision. Any notice to the Guarantor shall be sent to the address
referenced above. All notices hereunder shall be effective upon the earliest to
occur of (i) five (5) business days after such notice is mailed, by registered
or certified mail, postage prepaid (return receipt requested), (ii) upon
delivery by hand (iii) upon delivery if delivered by overnight courier (such
delivery to be evidenced by the courier's records), and (iv) in the case of any
notice or communication by telex or telecopy, on the date when sent.
18. ASSIGNMENTS AND PARTICIPATIONS. The Guarantor agrees that the Bank shall
have the right at all times to sell all or any portion of the Liabilities and
all documents and instruments evidencing or pertaining to the Liabilities
including this Guaranty. In connection therewith, the Guarantor hereby
irrevocably authorizes the Bank to deliver to each such purchaser, participant
and prospective purchaser or participant originals and copies of all loan
documents and instruments and this Guaranty and all financial statements and
other credit and factual data from time to time in the Bank's possession which
relate to the Borrower and/or all guarantors, including the Guarantor. This
Guaranty is expressly declared to be transferable and assignable.
19. INDEMNIFICATION. The Guarantor agrees to defend, indemnify and hold harmless
the Bank and any participants, successors or assigns of the Bank and the
officers, directors, employees and agents of each of them from and against any
and all losses, claims, liabilities, asserted liabilities, costs and expenses,
including, without limitation, costs of litigation and attorneys' fees (both the
allocated costs of internal counsel and outside counsel),
-4-
<PAGE>
incurred in connection with any and all claims or proceedings for bodily injury,
property damage, abatement or remediation, environmental damage or impairment or
any other injury or damage (including all foreseeable and unforeseeable
consequential damage) or any diminution in value of any real property resulting
from or relating, directly or indirectly, to (a) any release, spilling, leaking,
migrating, discharging, escaping, leaching, dumping or disposing (a "Release")
into the environment of any toxic substances or hazardous wastes (actual or
threatened), a threatened Release, the existence or removal of any toxic
substances or hazardous wastes on, into, from, through or under any real
property owned or operated by the Borrower or the Guarantor any other guarantor
of the Liabilities (for purposes of this paragraph, a "Guarantor") (whether or
not such Release was caused by Borrower, any Guarantor, a tenant, subtenant,
prior owner or tenant or any other person and whether or not the alleged
liability is attributable to the handling, storage, generation, transportation
or disposal of toxic substances or hazardous wastes or the mere presence of such
toxic substances or hazardous wastes) or (b) the breach or alleged breach by
Borrower and each Guarantor of any federal, state or local law or regulation
concerning public health, safety or the environment with respect to any real
property owned or operated by the Borrower or any Guarantor and/or any business
conducted thereon.
20. JOINT AND SEVERAL OBLIGATIONS; GENDER. If more than one Guarantor has signed
this Guaranty, the obligations of the Guarantor are joint and several. The term
"Guarantor" and all pronouns referring thereto as used herein shall be construed
in the masculine, feminine, neuter or singular or plural as the context may
require.
21. REPLACEMENT OF GUARANTY. Upon receipt of an affidavit of an officer of the
Bank as to the loss, theft, destruction or mutilation of this Guaranty and, in
the case of any such loss, theft, destruction or mutilation, upon cancellation
of such Guaranty, the undersigned will issue, in lieu thereof, a replacement
Guaranty.
This Guaranty has been executed by the Guarantor, through its duly
authorized representative where required, as of the date above written.
2945-5469 Quebec, Inc.
/s/ Lori S. Westerholm By: /s/ Philip Leibel
- ----------------------------- ------------------------------------------
Witness Its: Treasurer and Chief Financial Officer
-5-
<PAGE>
FLEET NATIONAL BANK GUARANTY
This Guaranty is executed and delivered as of August 6, 1999 by the
undersigned, Transfer Print Foils, Inc., a New Jersey corporation, with an
address at 9 Cotters Lane, East Brunswick, New Jersey (the "Guarantor") to FLEET
NATIONAL BANK, a national banking association organized and existing under the
laws of the United States of America, having an office located at One Federal
Street, Boston, Massachusetts (the "Bank").
W I T N E S S E T H:
WHEREAS, the Bank and Foilmark, Inc., a Delaware corporation (the
"Borrower") intend to enter into a loan transaction (the "Loan"); and
WHEREAS, the Guarantor is a subsidiary of the Borrower and will derive
a direct and substantial business benefit from the consummation and existence of
the Loan; and
WHEREAS, the Bank has advised the Guarantor that it will not enter into
the aforesaid loan transaction with the Borrower or continue to extend credit to
the Borrower unless, among other matters, the Guarantor guarantees the punctual
payment and performance of all obligations of the Borrower to the Bank as
hereinafter provided, including without limitation, the punctual payment of all
principal, interest and fees; and
WHEREAS, on account of the direct and substantial business benefit to
be derived by the Guarantor from the Loan, the Guarantor is willing and has
agreed to guarantee the payment and performance of the aforesaid obligations, as
hereinafter provided.
NOW, THEREFORE, in consideration of any and all loans, advances,
discounts and extensions of credit made and to be made by the Bank to, for the
account of, or on behalf of the Borrower, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guarantor agrees
as follows:
1. LIABILITIES. "Liabilities" shall mean any and all obligations, indebtedness
and liabilities of any type of the Borrower to the Bank, whether now existing or
hereafter incurred, whether or not contemplated on the date of this Guaranty,
direct or indirect, primary or secondary, absolute or contingent, due or to
become due, whether otherwise guaranteed or secured, and howsoever evidenced or
acquired, including all obligations of the Borrower in respect of letters of
credit and banker's acceptances (excluding, however, indebtedness incurred
primarily for personal, family or household purposes); the obligations of the
Borrower under any agreement evidencing any of the foregoing; expenses and costs
incurred by the Bank in the enforcement of any of its rights with respect
thereto, including without limitation reasonable attorneys' fees and costs
(which may include costs and expenses allocated to the Bank's internal Legal
Department); and any and all costs and expenses incurred by the Bank for
appraisals, environmental site assessments, and examinations and inspections of
books and records and property including, without limitation, the fees and
expenses of all engineers, appraisers and other professionals, or any other
expenses arising out of or with respect to the validity, enforceability,
collection, defense or preservation of this Guaranty.
2. GUARANTY OF LIABILITIES. The obligations of Guarantor hereunder are primary
and not contingent. Guarantor acknowledges and agrees that this Guaranty is
intended to be a contract of suretyship and that the Guarantor has agreed to act
as a surety to the Bank. The Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to the Bank the full, complete and punctual payment
and performance when and as due, whether at the stated date or dates for such
payment, by acceleration or otherwise, each and all of the Liabilities. If for
any reason the Liabilities are unenforceable against the Borrower, then in said
event, this Guaranty shall nevertheless be binding upon the Guarantor to the
same extent as if the Guarantor had been the principal obligor of such
Liability.
3. GUARANTY ABSOLUTE AND UNCONDITIONAL. This is a Guaranty of payment and not
merely of collection. This is a continuing, absolute and unconditional Guaranty
which is subject to no limitations except those expressly agreed to by the
Guarantor and the Bank in writing. This Guaranty is not conditioned or
contingent upon the
<PAGE>
genuineness, validity, or enforceability of the loan documents or other
instruments relating to the creation or performance of the Liabilities or the
pursuit by the Bank of any remedies which the Bank has now or may hereafter have
with respect thereto under the loan documents at law, in equity, or otherwise.
Furthermore, the Guarantor shall forthwith pay all sums due to the Bank
hereunder without regard to any counterclaim, setoff, deduction, or defense of
any kind which any party obligated under the loan documents may have or assert,
and without abatement, suspension, deferment, or reduction on account of any
occurrence whatsoever. All payments made in connection with this Guaranty shall
be in lawful money of the United States of America in immediately available
funds.
4. EVENTS OF DEFAULT. Upon the occurrence of any Event of Default as defined in
a certain Amended and Restated Credit Agreement of even date by and among the
Borrower and the Bank (the "Credit Agreement") the liabilities and obligations
of the Guarantor hereunder shall immediately become due and payable at the
election of the Bank without notice or demand. The Bank shall have no obligation
to exercise any right or remedy or to seek any recovery from any party obligated
under the loan documents or to realize upon any collateral prior to proceeding
hereunder against the Guarantor, and likewise the enforcement of the Bank's
rights against the Borrower, any other party to the loan documents, or any
collateral, shall not impair the right of the Bank to enforce this Guaranty
against the Guarantor. The Guarantor expressly agrees that any such action by
the Bank shall never operate as a release or other diminution of the liability
of the Guarantor under this Guaranty.
5. [INTENTIONALLY DELETED]
6. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. The Guarantor hereby acknowledges
and agrees to be bound by the covenants applicable to the Guarantor as set forth
in Sections 7 and 8 of the Credit Agreement. The Guarantor hereby further
represents and warrants that: (a) neither the execution nor performance of this
Guaranty will violate any indenture, agreement or other instrument to which the
Guarantor is a party, or by which the Guarantor is bound, or be in conflict
with, result in a breach of or constitute with due notice or lapse of time or
both a default under, or except as may be provided by this Guaranty, result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the property or assets of the Guarantor pursuant to any
such indenture, agreement or instrument; (b) there is no action suit or
proceeding at law or in equity or by or before any governmental instrumentality
or other agency now pending or, to the knowledge of the Guarantor, threatened or
affecting the Guarantor which, if adversely determined, would have a material
adverse effect on the business, operations, properties, assets or condition,
financial or otherwise, of the Guarantor; (c) the Guarantor is not party to any
agreement or instrument or subject to any restriction adversely affecting the
guarantor's business, properties or assets, operations or conditions, financial
or otherwise; (d) the Guarantor is not in material default in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument which the Guarantor is a party; (e) the
Guarantor currently is, and will be after the transaction contemplated herein,
Solvent (as defined in the Credit Agreement); and (f) if a corporate,
partnership, limited liability company or trust Guarantor, it is duly organized,
validly existing and in good standing under the laws of the state of its
formation and in every other jurisdiction, except where the failure to so
qualify would not have a material adverse effect on the Guarantor, its property,
its financial condition or otherwise.
7. GUARANTOR'S WAIVERS; WAIVER OF SUBROGATION. The Guarantor waives notice of
the incurring of Liabilities, the acceptance of this Guaranty by the Bank;
presentment and demand for payment, protest, notice of protest, notice of
dishonor or non-payment of any instrument evidencing any Liabilities,
acceleration, and intent to accelerate; any right to require suit against the
Borrower or any other party before enforcing this Guaranty; any right to have
security applied before enforcing this Guaranty in any manner; any right to
marshaling of assets; the defense of impairment of collateral; and all other
suretyship defenses. The Guarantor specifically waives notice of any disposition
of any collateral after default or demand, as applicable, and the Guarantor
shall remain liable on the Liabilities notwithstanding any claim that the
disposition of any collateral was not commercially reasonable. The Guarantor
consents and agrees that renewals and extensions of time of payment, surrender,
release, exchange, substitution, dealing with or taking of additional collateral
security, taking or release of any guarantees, abstaining from taking advantage
or realizing upon any collateral security or other guarantees and any and all
other forbearances or indulgences granted by the Bank to the Borrower or any
other party may be made, granted and effected by the Bank without notice to the
Guarantor and without in any manner affecting the Guarantor's liability
hereunder. Any notice to the Guarantor by the Bank at any time shall not imply
that such notice or any further or
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similar notice was or is required. The Guarantor also hereby waives any claim,
right or remedy which the Guarantor may now have or hereafter acquire against
the Borrower that arises hereunder and/or from the performance by the Guarantor
hereunder including, without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, contribution, indemnification, or
participation in any claim, right or remedy of the Bank against the Borrower or
any security which the Bank now has or hereafter acquires, whether or not such
claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise. The Guarantor acknowledges that the underlying
transaction to which the Guaranty relates concerns the Bank having made or
making, now or in the future, loans and advances, or otherwise extending credit
to the Borrower and that the Guarantor will materially and directly or
indirectly receive good and valuable consideration and/or financial benefit from
said underlying transactions.
8. FEES AND EXPENSES; SETOFF RIGHTS. The Guarantor agrees to pay the Bank any
and all costs, expenses and reasonable attorneys' fees (which may include costs
allocated to the Bank's internal Legal Department), paid or incurred by the Bank
in enforcing or endeavoring to enforce this Guaranty, including, without
limitation, any administrative fees such as overnight courier fees, lien search
fees, and filing and recording fees. The Guarantor hereby grants to the Bank a
lien, security interest, and right of setoff as security for all of the
Guarantor's liabilities and obligations to the Bank, whether now existing or
hereafter arising, upon and against all the deposits, credits, collateral and
property of the undersigned, now or hereafter in the possession, custody, or
control of Fleet National Bank, any entity under the control of Fleet Financial
Group, Inc. or any participant of the Bank in the Loan ("Participant") or in
transit to any of them. At any time, without demand or notice, the Bank or any
Participant may set off the same or any part thereof and apply the same to any
liability or obligation of the undersigned even though unmatured and regardless
of the adequacy of any other collateral securing the Borrower's or the
undersigned's liabilities and obligations to you. ANY AND ALL RIGHTS TO REQUIRE
THE BANK OR ANY PARTICIPANT TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT OT
ANY OTHER COLLATERAL WHICH SECURES THE LIABILITIES, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
9. PREFERENCE, ETC. The Guarantor agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, of the principal of, interest on, or fees with respect to any of
the Liabilities is rescinded or must otherwise be restored or returned by the
Bank upon insolvency, bankruptcy or reorganization of the Borrower or the
Guarantor, or otherwise, all as though such payment had not been made.
10. CHOICE OF LAW; MODIFICATION; SUCCESSORS AND ASSIGNS. This Guaranty is
executed under and shall be construed in accordance with the local laws
(excluding the conflict of laws rules, so-called) of the Commonwealth of
Massachusetts (the "Governing State"). This writing is intended by the parties
as the final, complete and exclusive statement of the terms of this Guaranty. No
course of dealing between the parties, no usage of the trade and no parol or
extrinsic evidence of any nature shall be used or be relevant to supplement,
explain or modify any term used herein. If any provision of this Guaranty shall
to any extent be held invalid or unenforceable, then only such provision shall
be deemed ineffective and the remainder of this Guaranty shall not be affected.
This Guaranty may not be amended, modified or waived except by a written
instrument describing such amendment, modification or waiver executed by the
Guarantor and the Bank. It may not be assigned by the Guarantor. It shall inure
to the benefit of the Bank and its successors and assigns and shall bind the
Guarantor and the successors, representatives and heirs of the Guarantor.
11. THE GUARANTOR ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS GUARANTY IS A
PART IS A COMMERCIAL TRANSACTION.
12. THE GUARANTOR AND THE BANK KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND
IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
INSTITUTED BY OR AGAINST THE GUARANTOR OR THE BANK IN RESPECT OF THIS GUARANTY
OR ARISING OUT OF ANY DOCUMENT, INSTRUMENT OR AGREEMENT
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EVIDENCING, GOVERNING OR SECURING THIS GUARANTY OR THE LIABILITIES GUARANTEED BY
THIS GUARANTY.
13. JURISDICTION AND VENUE. The Guarantor hereby irrevocably consents that any
legal action or proceeding against the Guarantor or any of the Guarantor's
property with respect to any matter arising under or relating to this Guaranty
may be brought in any court of the Governing State, or any Federal Court of the
United States of America located in the Governing State, as the Bank may elect,
and by execution and delivery of this Guaranty, the Guarantor hereby submits to
and accepts with regard to any such action or proceeding, for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. The Guarantor further irrevocably consents to the service of
process in any such action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Guarantor at its address
set forth herein. The foregoing, however, shall not limit the Bank's rights to
serve process in any other manner permitted by law or to bring any legal action
or proceeding or to obtain execution of judgment in any other jurisdiction. The
Guarantor hereby irrevocably waives any objection which it may now or hereafter
have to the laying of the venue of any suit, action or proceeding arising out of
or relating to this Guaranty, and hereby further irrevocably waives any claim
that the Governing State is not a convenient forum for any such suit, action or
proceeding.
14. BORROWER'S DISCHARGE. If for any reason any of the Liabilities have been
discharged or have become irrecoverable from the Borrower by operation of law or
for any other reason, the liabilities of the Guarantor under this Guaranty shall
nevertheless remain in full force and effect notwithstanding such discharge or
irrevocability.
15. PROSPECTIVE TERMINATION ONLY. This Guaranty shall not be terminated until
the Bank in its discretion determines that the Liabilities of the Borrower
covered by this Guaranty have been satisfied in full.
16. FINANCIAL STATEMENTS. For so long as this Guaranty is in effect, the
Guarantor shall deliver to the Bank such tax returns, financial statements and
other information about the Guarantor's financial condition as may be required
by the Credit Agreement.
17. NOTICES. Except as otherwise specifically provided for herein, any notice,
demand or communication hereunder shall be given in writing (including facsimile
transmission or telex) and mailed or delivered to each party at its address set
forth above, or, as to each party, at such other address as shall be designated
by such party by a prior notice to the other party in accordance with the terms
of this provision. Any notice to the Guarantor shall be sent to the address
referenced above. All notices hereunder shall be effective upon the earliest to
occur of (i) five (5) business days after such notice is mailed, by registered
or certified mail, postage prepaid (return receipt requested), (ii) upon
delivery by hand (iii) upon delivery if delivered by overnight courier (such
delivery to be evidenced by the courier's records), and (iv) in the case of any
notice or communication by telex or telecopy, on the date when sent.
18. ASSIGNMENTS AND PARTICIPATIONS. The Guarantor agrees that the Bank shall
have the right at all times to sell all or any portion of the Liabilities and
all documents and instruments evidencing or pertaining to the Liabilities
including this Guaranty. In connection therewith, the Guarantor hereby
irrevocably authorizes the Bank to deliver to each such purchaser, participant
and prospective purchaser or participant originals and copies of all loan
documents and instruments and this Guaranty and all financial statements and
other credit and factual data from time to time in the Bank's possession which
relate to the Borrower and/or all guarantors, including the Guarantor. This
Guaranty is expressly declared to be transferable and assignable.
19. INDEMNIFICATION. The Guarantor agrees to defend, indemnify and hold harmless
the Bank and any participants, successors or assigns of the Bank and the
officers, directors, employees and agents of each of them from and against any
and all losses, claims, liabilities, asserted liabilities, costs and expenses,
including, without limitation, costs of litigation and attorneys' fees (both the
allocated costs of internal counsel and outside counsel), incurred in connection
with any and all claims or proceedings for bodily injury, property damage,
abatement or remediation, environmental damage or impairment or any other injury
or damage (including all foreseeable and unforeseeable consequential damage) or
any diminution in value of any real property resulting from or relating,
directly or indirectly, to (a) any release, spilling, leaking, migrating,
discharging, escaping, leaching, dumping or
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<PAGE>
disposing (a "Release") into the environment of any toxic substances or
hazardous wastes (actual or threatened), a threatened Release, the existence or
removal of any toxic substances or hazardous wastes on, into, from, through or
under any real property owned or operated by the Borrower or the Guarantor any
other guarantor of the Liabilities (for purposes of this paragraph, a
"Guarantor") (whether or not such Release was caused by Borrower, any Guarantor,
a tenant, subtenant, prior owner or tenant or any other person and whether or
not the alleged liability is attributable to the handling, storage, generation,
transportation or disposal of toxic substances or hazardous wastes or the mere
presence of such toxic substances or hazardous wastes) or (b) the breach or
alleged breach by Borrower and each Guarantor of any federal, state or local law
or regulation concerning public health, safety or the environment with respect
to any real property owned or operated by the Borrower or any Guarantor and/or
any business conducted thereon.
20. JOINT AND SEVERAL OBLIGATIONS; GENDER. If more than one Guarantor has signed
this Guaranty, the obligations of the Guarantor are joint and several. The term
"Guarantor" and all pronouns referring thereto as used herein shall be construed
in the masculine, feminine, neuter or singular or plural as the context may
require.
21. REPLACEMENT OF GUARANTY. Upon receipt of an affidavit of an officer of the
Bank as to the loss, theft, destruction or mutilation of this Guaranty and, in
the case of any such loss, theft, destruction or mutilation, upon cancellation
of such Guaranty, the undersigned will issue, in lieu thereof, a replacement
Guaranty.
This Guaranty has been executed by the Guarantor, through its duly
authorized representative where required, as of the date above written.
Transfer Print Foils, Inc.
/s/ Lori S. Westerholm By: /s/ Philip Leibel
- ------------------------------- ---------------------------------------
Witness Its: Treasurer & Chief Financial Officer
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OIL AND HAZARDOUS MATERIALS INDEMNIFICATION AGREEMENT
This OIL AND HAZARDOUS MATERIALS INDEMNIFICATION AGREEMENT (this
"Agreement") is made this 6th day of August, 1999 by Foilmark Manufacturing
Corporation, a Delaware corporation (the "Guarantor") with its principal address
at 5 Malcolm Hoyt Drive, Newburyport, Massachusetts, and Fleet National Bank, a
national banking association (the "Bank") with its principal address at One
Federal Street, Boston, Massachusetts.
W I T N E S S E T H:
WHEREAS, Foilmark, Inc., a Delaware corporation (the "Borrower") is
obligated for the prompt, punctual and faithful payment and performance of
various liabilities, obligations, and indebtedness to the Bank, including,
without limitation, a certain loan arrangement with the Bank in the maximum
principal amount of Ten Million Dollars ($10,000,000.00), a certain loan
arrangement with the Bank in the original principal amount of Five Million
Dollars ($5,000,000.00) and a certain loan arrangement with the Bank in the
maximum principal amount of Four Million Dollars ($4,000,000.00) (hereinafter
collectively referred to as the "Liabilities"); and
WHEREAS, the Liabilities are secured by, among other things, a Guaranty
of the Guarantor of even date, which Guaranty is secured by a certain Mortgage,
Security Agreement, and Assignment dated June 28, 1995 as may be amended (the
"Mortgage"), encumbering, among other things, the property owned or operated by
the Guarantor located at 5 Malcolm Hoyt Drive, Newburyport, Massachusetts (the
"Premises"); and
WHEREAS, in order to induce the Bank to make the Liabilities to the
Borrower, the Guarantor has agreed to execute and deliver this Agreement to the
Bank;
NOW THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby represents, warrants, and covenants as
follows (All terms used in this Agreement are being used with the meaning given
those terms in Massachusetts General Laws, Chapter 21E, as amended.):
1. The Guarantor represents that neither the Guarantor nor any person
for whose conduct the Guarantor is responsible including, but not limited to
tenants or users of the Premises ever:
(a) owned, occupied, or operated a site or vessel on which any
hazardous material or oil was or is stored (except if such storage was or is in
compliance with all laws, ordinances, and regulations pertaining thereto),
transported, or disposed of;
(b) directly or indirectly transported, stored, treated or
disposed, or arranged for the transport, storage, treatment or disposal of any
hazardous material or oil;
(c) caused or was legally responsible for any release, or
threat of release, of any hazardous material or oil;
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<PAGE>
(d) received notification from any federal, state, or other
governmental authority of: (i) any potential, known, or threat of release of any
hazardous material or oil on (whether on the Premises or from another property
offsite of the Premises) or from the Premises, or any other site or vessel
owned, occupied, or operated either by the Guarantor or any person for whose
conduct the Guarantor is responsible or whose liability may result in a lien on
the Premises; or (ii) the incurrence of any expense or loss by such governmental
authority, or by any other person, in connection with the assessment,
containment, or removal of any release, or threat of release, of any hazardous
material or oil from the Premises or any such site or vessel.
2. The Guarantor represents and warrants that no hazardous material or
oil was ever, or is now, stored on (except in compliance with all laws,
ordinances, and regulations pertaining thereto), transported, or disposed of on
the Premises.
3. The Guarantor shall:
(a) not store (except in compliance with all laws, ordinances,
and regulations pertaining thereto), or dispose of any hazardous material or oil
on the Premises, or on any other site or vessel owned, occupied, or operated
either by the Guarantor, or by any person for whose conduct the Guarantor is
responsible;
(b) neither directly nor indirectly transport or arrange for
the transport of any hazardous material or oil;
(c) take all such action, including, without limitation, the
conducting of engineering tests (at the sole expense of the Guarantor) (i) to
confirm that no hazardous material or oil is or ever was stored or released on
the Premises; (ii) to assess, contain, and remove any such hazardous material or
oil on the Premises; and (iii) to qualify for any insurance program or safe
harbor which may be available under said Chapter 2lE, as amended;
(d) provide the Bank with immediate written notice upon: (i)
the Guarantor's obtaining knowledge of any potential or known release, or threat
of release, of any hazardous material or oil on (whether from the Premises or
from another property offsite of the Premises) or from the Premises, or any
other site or vessel owned, occupied, or operated by the Guarantor or by any
person for whose conduct the Guarantor is responsible or whose liability may
result in a lien on the Premises; (ii) the Guarantor's receipt of any notice to
such effect from any federal, state, or other governmental authority; and (iii)
the Guarantor's obtaining knowledge of any incurrence of any expense or loss by
such governmental authority in connection with the assessment, containment, or
removal of any hazardous material or oil for which expense or loss the Guarantor
may be liable or for which expense a lien may be imposed on the Premises; and
(e) comply with all laws, judgments, decrees, orders, rules,
and regulations pertaining to environmental matters relating to the use,
storage, containment, and removal of
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<PAGE>
hazardous materials or oil, including, without limitation, those arising under
Massachusetts General Laws Chapter 21E, as amended, and any other federal, state
or local statute, rule, regulation, ordinance, or decree.
4. The Guarantor shall indemnify, defend, and hold the Bank harmless of
and from any claim brought or threatened against the Bank by the Guarantor, any
guarantor or endorser of the Liabilities, or any governmental agency or
authority or any other person (as well as from attorneys' reasonable fees and
expenses in connection therewith) on account of the presence of hazardous
material or oil on the Premises, the release of hazardous materials or oil on or
from the Premises, or the failure by the Guarantor to comply with the terms and
provisions hereof (each of which may be defended, compromised, settled, or
pursued by the Bank with counsel of the Bank's selection, but at the expense of
the Guarantor). This indemnification covers any costs and expenses that the Bank
may incur: (i) in defending or protecting its security interest or the priority
thereof, or, (ii) for assessment, containment and/or removal of any hazardous
material or oil from all or any portion of the Premises or any surrounding
areas. The within indemnification shall survive payment of the Liabilities
and/or any termination, release, or discharge executed by the Bank in favor of
the Guarantor.
5. This Agreement shall be binding upon the Guarantor and the
Guarantor's heirs, executors, administrators, representatives, successors, and
assigns and shall inure to the benefit of the Bank and the Bank's successors and
assigns.
6. Any determination that any provision of this Agreement or any
application thereof is invalid, illegal, or unenforceable in any respect in any
instance shall not affect the validity, legality, and enforceability of such
provision in any other instance, nor the validity, legality, or enforceability
of any other provision of this Agreement.
7. The Guarantor shall pay on demand all costs of collection and all
expenses of the Bank in connection with the preparation, execution, and delivery
of this Agreement and of any other documents and agreements between the
Guarantor and the Bank, including, without limitation, attorneys' reasonable
fees and disbursements, and all expenses which the Bank may hereafter incur in
connection with the collection of the Liabilities or the protection or
enforcement of any of the Bank's rights against the Guarantor, the Premises, and
any guarantor or endorser of the Liabilities. The Guarantor authorizes the Bank
to pay all such expenses and to charge the same to any account of the Guarantor
with the Bank.
8. This Agreement and all rights and obligations hereunder, including
matters of construction, validity and performance, shall be governed by the laws
of The Commonwealth of Massachusetts. The Guarantor submits itself to the
jurisdiction of the courts of said Commonwealth for all purposes with respect to
this Agreement and the Guarantor's relationship with the Bank.
9. The Guarantor hereby makes the following waiver, knowingly,
voluntarily, and
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intentionally, and understands that the Bank, in entering into any loan
arrangements or making any financial accommodations to the Guarantor, whether
now or in the future, is relying on such waiver. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY PRESENT OR FUTURE RIGHT OF THE GUARANTOR TO A JURY IN ANY
TRIAL OF ANY CASE OR CONTROVERSY IN WHICH THE BANK IS OR BECOMES A PARTY
(WHETHER SUCH CASE OR CONTROVERSY IS INITIATED BY OR AGAINST THE BANK OR IN
WHICH THE BANK IS JOINED AS A PARTY LITIGANT), WHICH CASE OR CONTROVERSY ARISES
OUT OF OR IS IN RESPECT OF, ANY RELATIONSHIP BETWEEN THE GUARANTOR OR ANY OTHER
PERSON AND THE BANK.
10. Any notices or other written communications sent pursuant to this
Agreement shall be deemed given when deposited in the United States mail,
postage prepaid, certified or registered, addressed to the party to whom such
notice or other written communication is being sent at such party's address as
set forth in the preamble of this Agreement, or to such other address as such
party may designate by written notice to the other party given in accordance
with this paragraph.
IN WITNESS WHEREOF, the Guarantor has executed this Agreement, to take
effect as an instrument under seal, as of the date first set forth above.
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WITNESS: Foilmark Manufacturing Corporation
/s/ Lori S. Westerholm By: /s/ Philip Leibel
- --------------------------------- ------------------------------------
Name: Philip Leibel
----------------------------------
Title: Treasurer
---------------------------------
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SECOND AMENDMENT TO MORTGAGE
AND SECURITY AGREEMENT
This SECOND AMENDMENT TO MORTGAGE AND SECURITY AGREEMENT is made as of
the 6th day of August, 1999 by and between Foilmark Manufacturing Corporation, a
Delaware corporation (hereinafter, the "Mortgagor") with a principal office at 5
Malcolm Hoyt Drive, Newburyport, Massachusetts, and Fleet National Bank, a
national bank (hereinafter, the "Mortgagee") with its principal office at One
Federal Street, Boston, Massachusetts, in consideration of the mutual covenants
contained herein and the benefits to be derived herefrom.
WHEREAS, the Mortgagee is the present holder of a certain Mortgage And
Security Agreement dated as of June 28, 1995 originally granted to Chemical Bank
("Chemical") by the Mortgagor on and relating to certain premises known and
numbered as 5 Malcolm Hoyt Drive, Newburyport, Massachusetts (as more
particularly described in said Mortgage And Security Agreement), which Mortgage
And Security Agreement is recorded with the Essex South Registry of Deeds at
Book 13073, Page 545 (the "Mortgage") (for Mortgagee's title see Assignment of
Mortgage and Security Agreement from The Chase Manhattan Bank ("Chase"),
successor-in-interest to Chemical, to the Mortgagee dated January 13, 1998 and
recorded with the Essex South Registry of Deeds at Book ____, Page ____); and
WHEREAS, the Mortgage secures the payment and performance of all of the
Mortgagor's present and future liabilities, obligations, and indebtedness to the
Mortgagee including, without limitation, those arising under a certain Credit
Agreement dated as of June 28, 1995 (the "Credit Agreement") among the
Mortgagor, Foilmark, Inc., a Delaware corporation ("Foilmark"), the Mortgagee
and the other parties named therein, as amended and in effect from time to time;
and
WHEREAS, the Mortgagor and Foilmark (the Mortgagor and Foilmark are
hereinafter the "Obligors") and the Mortgagee have agreed to amend, modify and
supplement the Credit Agreement concurrently herewith by executing and
delivering that certain Amended and Restated Credit Agreement (hereinafter, the
"1999 Credit Agreement") of even date herewith (the Credit Agreement as so
amended, modified and supplemented by the 1999 Credit Agreement is hereinafter
referred to as the "Amended Credit Agreement"); and
WHEREAS, pursuant to the Amended Credit Agreement, the Obligors and the
Mortgagee have (i) entered into a certain loan arrangement of even date pursuant
to which the Obligors have executed and delivered to the Mortgagee an Amended
and Restated Commercial Line of Credit Promissory Note in the maximum principal
amount of Ten Million Dollars ($10,000,000.00) (the "Amended Line of Credit
Note"), which Amended Line of Credit Note is an amendment and restatement of
that certain Second Amended and Restated Revolving Credit Note dated June 30,
1997 previously executed by Foilmark, the Mortgagor, Kensol-Olsenmark, Inc., a
Delaware corporation, West Foils, Inc., a California corporation, and Imtran
Foilmark, Inc., a Delaware corporation (collectively, the "Companies") in favor
of the Mortgagee in the aggregate principal amount of Ten Million Dollars
($10,000,000.00) (the "Second Amended Note"), which Second Amended Note amended,
restated and consolidated (a) that certain Amended and Restated Revolving Credit
Note dated August 21, 1995 previously executed by the Companies in favor of
Shawmut Bank, N.A., the predecessor to the Mortgagee, in the aggregate
<PAGE>
principal amount of $2,000,000.00 (the "2,000,000.00 Note"), and (b) that
certain Amended and Restated Revolving Credit Note dated August 21, 1995
previously executed by the Companies in favor of Chemical Bank in the aggregate
principal amount of $4,000,000.00 (the "$4,000,000.00 Note") and thereafter
assigned to the Mortgagee by The Chase Manhattan Bank; and (ii) entered into
certain loan arrangements of even date pursuant to which Foilmark has executed
and delivered to the Mortgagee a certain Commercial Term Promissory Note in the
original principal amount of Five Million Dollars ($5,000,000.00) (the "Term
Note") and a certain Equipment Line of Credit Promissory Note in the maximum
principal amount of Four Million Dollars ($4,000,000.00) (the "Equipment Note")
(the Amended Line of Credit Note, the Term Note and the Equipment Note, and any
amendments, modifications, substitutions or replacements thereof are hereafter
collectively referred to as the "1999 Notes").
WHEREAS, the Mortgagor and the Mortgagee wish to amend, modify and
supplement the Mortgage, all as more particularly hereinafter set forth;
NOW THEREFORE, in consideration of the above premises and of the sum of
One Dollar ($1.00) and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Mortgagor and the Mortgagee
hereby covenant and agree as follows:
1. Capitalized terms used herein without other definition shall
have the meanings assigned to them in the Mortgage.
2. The Mortgage is hereby amended, modified and supplemented to
secure payment of the Amended Credit Agreement, the 1999
Notes, and any amendments, modifications, substitutions and
replacements thereof. From and after the date hereof, any and
all references in the Mortgage to the Credit Agreement shall
mean and refer to the Amended Credit Agreement, and any
amendments, modifications, substitutions and replacements
thereof, and any and all references in the Mortgage to a Note
or Notes shall include the 1999 Notes, and any amendments,
modifications, substitutions and replacements thereof.
3. The Mortgagor hereby warrants and represents to the Mortgagee
as follows:
(a) Each of the representations and warranties of the
Mortgagor contained in the Mortgage or in any other document
or instrument executed in connection therewith was true as of
the date as of which it was made and, except as specifically
amended herein and except for representations which expressly
relate to a specific date, is true as and at the date of this
Amendment, and no Event of Default has occurred and is
continuing as of the date of this Amendment and no event has
occurred or failed to occur which is ,or solely with the
giving of notice and/or passage of time would constitute, an
Event of Default.
(b) This Amendment has been duly authorized,
executed, and delivered by the Mortgagor, and the agreements
of the Mortgagor contained herein and in all
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documents and instruments executed in connection herewith
constitute the legal, valid, and binding obligations of the
Mortgagor, enforceable against the Mortgagor in accordance
with their respective terms.
4. Except as specifically modified herein, all terms and
conditions of the Mortgage remain in full force and effect and
are hereby ratified and confirmed. The Mortgage, as modified
hereby, and as provided in said Mortgage is upon the STATUTORY
CONDITION and upon the further condition that all covenants
and agreements of the Mortgagor contained therein and herein
shall be kept and fully performed, for any breach of which
condition the holder hereof shall have the STATUTORY POWER OF
SALE.
(the remainder of this page intentionally left blank.)
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
signed, sealed and acknowledged and duly authorized as of the date first above
written.
MORTGAGOR:
Foilmark Manufacturing Corporation
By: /s/
------------------------------------
Philip Leibel
VICE PRESIDENT-GENERAL MANAGER
AND TREASURER
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<PAGE>
MORTGAGEE:
Fleet National Bank
BY: /s/
------------------------------------
James M. Clark
Vice President
-5-
<PAGE>
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. August 11, 1999
Then personally appeared the above-named Philip Leibel, the Vice
President-General Manager and the Treasurer of Foilmark Manufacturing
Corporation and acknowledged the foregoing to be the free act and deed of
Foilmark Manufacturing Corporation, before me.
/s/ Sharon A. Wilson
---------------------------------------
Notary Public
My Commission
Expires: May 22, 2003
-------------------------------
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<PAGE>
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. August 6, 1999
Then personally appeared the above-named James M. Clark, a Vice
President of Fleet National Bank and acknowledged the foregoing to be the free
act and deed of Fleet National Bank, before me.
/s/ Christopher F. Chappell
---------------------------------------
NOTARY PUBLIC
My Commission
Expires: 1/22/2000
-------------------------------
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<PAGE>
SECOND AMENDMENT TO COMPANY
SECURITY AGREEMENT
This Second Amendment to Company Security Agreement is entered into as
of the 6th day of August, 1999 by and between Foilmark Manufacturing Corporation
(the "Company"), a Delaware corporation with a principal office at 25 Hale
Street, Newburyport, Massachusetts, and Fleet National Bank (the "Secured
Party"), a national banking association with its principal office at One Federal
Street, Boston, Massachusetts, in consideration of the mutual covenants and the
benefits to be derived herefrom.
WITNESSETH
WHEREAS, the Company and Chemical Bank ("Chemical") entered into a
certain Company Security Agreement dated as of June 28, 1995 (the "Security
Agreement") pursuant to which, among other things, the Company granted Chemical
a security interest in and to certain Collateral (as defined therein and
hereinafter referred to as the "Collateral") in order to secure the Company's
Obligations (as defined therein) to Chemical; and
WHEREAS, such Obligations include, without limitation, the Company's
liabilities, obligations and indebtedness to Chemical under a certain Letter of
Credit Reimbursement and Loan Agreement between Chemical and the Company dated
as of June 28, 1995 as amended and in effect from time to time (referred to in
the Security Agreement and hereinafter as the "Credit Agreement") including,
without limitation, the Company's reimbursement and payment obligations with
respect to (i) draws under a certain irrevocable direct pay letter of credit
issued by Chemical for the account of the Company in the stated amount of
$4,465,096.00 (the "Chemical LC"), and (ii) any Loans (as defined in the Credit
Agreement) made by Chemical to the Company; and
WHEREAS, the Secured Party has acquired all of Chemical's rights and
interests under the Credit Agreement, the Security Agreement, and all documents,
instruments and agreements related thereto pursuant to a certain Assignment And
Acceptance (the "Assignment") dated January 13, 1998 by and between the Secured
Party and The Chase Manhattan Bank (successor-in-interest to Chemical) ("Chase")
and agreed and consented to by the Company and the Corporate Guarantors (as
defined in the Credit Agreement); and
WHEREAS, the Company and the Secured Party have previously amended,
modified and supplemented the Credit Agreement by executing and delivering that
certain Fifth Amendment to Letter of Credit Reimbursement and Loan Agreement
dated January 13, 1998 (hereinafter, the "Credit Amendment") (the Credit
Agreement as so amended, modified and supplemented by the Credit Amendment is
hereinafter referred to as the "Amended Credit Agreement"); and
<PAGE>
WHEREAS, the Secured Party and the Company have previously amended the
Security Agreement pursuant to a certain First Amendment to Company Security
Agreement dated January 13, 1998; and
WHEREAS, the Secured Party and Foilmark, Inc., a Delaware corporation
("Foilmark") and the parent corporation of the Company have entered into a
certain Amended and Restated Credit Agreement dated August 6, 1999 (the
"Foilmark Credit Agreement") pursuant to which the Secured Party has made
available to Foilmark a Line of Credit, a Term Loan and an Equipment Loan
(collectively, the "Loans"), as each is defined in the Foilmark Credit
Agreement; and
WHEREAS, the Loans are secured by, among other collateral, a Guaranty
of the Secured Party dated August 6, 1999 (the "Guaranty"), which Guaranty is to
be secured by, among other collateral, the Security Agreement, as amended; and
WHEREAS, the Secured Party and the Company wish to amend, modify, and
supplement the Security Agreement so that the obligations of the Company to the
Secured Party under or in respect of the Guaranty are secured by the Collateral
(as defined in the Security Agreement), all as more particularly hereinafter set
forth;
NOW THEREFORE, in consideration of the mutual agreements contained in
the Guaranty and herein and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. Capitalized terms used herein without other definition shall have
the meanings assigned to them in the Security Agreement.
2. From and after the date hereof, any and all references contained in
the Security Agreement to "Obligations" shall also include all obligations of
the Company to the Secured Party under or in respect of the Guaranty.
-2-
<PAGE>
3. The Company hereby warrants and represents to the Secured Party as
follows:
(a) Each of the representations and warranties of the Company contained
in the Security Agreement or in any other document or instrument executed in
connection therewith was true as of the date as of which it was made. In
addition, the Company hereby further represents and warrants that the place
where the Company keeps its records concerning the Collateral, the Company's
principal place of business and the Company's executive offices, is the location
set forth at the beginning of this Agreement. The Collateral is now and will
continue to be kept at the location set forth at the beginning of this Agreement
and at 4 Mullikan Way, Newburyport, Massachusetts until such time as the written
consent of the Bank to a change in location is received. No Event of Default has
occurred and is continuing as of the date of this Amendment and no event has
occurred or failed to occur which is, or solely with the giving of notice and\or
passage of time would constitute, an Event of Default.
(b) This Amendment has been duly authorized, executed, and delivered by
the Company, and the agreements of the Company contained herein and in all
documents and instruments executed in connection herewith constitute the legal,
valid, and binding obligations of the Company, enforceable against the Company
in accordance with their respective terms.
4. The Security Agreement as amended herein, together with the Amended
Credit Agreement, the Foilmark Credit Agreement and any other documents executed
in connection therewith express the entire understanding of the parties with
respect to the transactions contemplated thereby. Neither this Amendment nor any
term hereof may be changed, waived, discharged, or terminated except as provided
in Section 5.06 of the Security Agreement.
5. Except as expressly amended hereby, the Security Agreement is hereby
ratified and confirmed in all respects and shall continue in full force and
effect.
(The remainder of this page intentionally left blank.)
-3-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
signed, sealed, acknowledged and duly authorized as of the date first written
above as a sealed instrument under the laws of the Commonwealth of
Massachusetts.
COMPANY:
Foilmark Manufacturing Corporation
By: /s/ Philip Leibel
------------------------------------
Philip Leibel
Vice President - General Manager
and Treasurer
SECURED PARTY:
Fleet National Bank
By: /s/ James M. Clark
------------------------------------
James M. Clark
Vice President
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<PAGE>
FLEET NATIONAL BANK SECURITY AGREEMENT
(EQUIPMENT)
FOILMARK, INC. (the "Debtor"), having its chief executive office and principal
place of business at 5 Malcolm Hoyt Drive, Newburyport, Massachusetts, hereby
grants to FLEET NATIONAL BANK, a national banking association organized and
existing under the laws of the United States of America (the "Bank"), having an
office at One Federal Street, Boston, Massachusetts, a first security interest
in all of the Debtor's present and future right, title and interest in and to
any and all of the following property whether now existing or hereafter created
and wherever located (all of which is hereinafter called the "Collateral"):
All equipment and fixtures, as defined in the Uniform Commercial Code (as
defined below) and all machinery, tools, parts, furniture, furnishings,
motor vehicles and other personal property, tangible or intangible,
presently owned or hereafter acquired by the Debtor, together with
additions and accessions thereto and substitutions and replacements
therefor, and the products and proceeds (including insurance and
condemnation proceeds) thereof;
to secure the payment and performance of all liabilities and obligations now or
hereafter owing from the Debtor (sometimes hereinafter referred to as the
"Borrower") to the Bank of whatever kind or nature, whether or not currently
contemplated at the time of this Agreement, whether such obligations be direct
or indirect, absolute or contingent or due or to become due, including all
obligations of the Debtor and/or the Borrower, actual or contingent, in respect
of letters of credit or banker's acceptances issued by the Bank for the account
of or guaranteed by the Debtor and/or Borrower and all obligations of any
partnership or joint venture as to which Debtor and/or Borrower is or may become
personally liable (the "Obligations", which term shall include all accrued
interest and all costs and expenses, including reasonable attorney's fees,
including the costs and expenses allocated to the Bank's internal Legal
Department, costs and expenses relating to the appraisal and/or valuation of
assets and all costs and expenses incurred or paid by the Bank in exercising,
preserving, defending, collecting, enforcing, or protecting any of its rights
under the Obligations or hereunder or with respect to the Collateral or in any
litigation arising out of the transactions evidenced by the Obligations). The
Bank shall have the unrestricted right from time to time to apply (or to change
any application already made) the proceeds of any of the Collateral to any
Obligations, as the Bank, in its sole discretion, may determine.
I. REPRESENTATIONS AND WARRANTIES OF DEBTOR
The Debtor hereby acknowledges and agrees to be bound by the
representations and warranties applicable to the Debtor as Borrower (as defined
in that certain Credit Agreement dated of even dated between the Debtor and the
Bank (the "Credit Agreement")) as set forth in Section 5 of the Credit
Agreement.
In addition, the Debtor hereby represents and warrants that:
(a) The place where Debtor keeps its records concerning the Collateral,
the Debtor's principal place of business and the Debtor's executive offices, is
the location set forth at the beginning of this Agreement. The Collateral is now
and will continue to be kept at the following location(s): 5 Malcolm Hoyt Drive,
Newburyport, Massachusetts and 4 Mullikan Way, Newburyport, Massachusetts.
(b) If any of the Collateral is to be attached to real estate, a
description of said real estate has been delivered to the Bank and the name and
address of each record owner is the Debtor with respect to 5 Malcolm Hoyt Drive,
Newburyport, Massachusetts, and Edward Molen Associates with respect to 4
Mullikan Way, Newburyport, Massachusetts.
-1-
<PAGE>
II. COVENANTS OF DEBTOR
The Debtor hereby acknowledges and agrees to be bound by the covenants
applicable to the Debtor as Borrower set forth in Sections 7 and 8 of the Credit
Agreement.
In addition, the Debtor hereby agrees and covenants that:
(a) Debtor shall, at its expense, furnish to the Bank, upon the Bank's
demand, such further information, shall execute and deliver to the Bank such
financing statements and other agreements, instruments or documents, and shall
do all such acts as the Bank may, at any time or from time to time, reasonably
request, or as may be necessary or appropriate to establish and maintain a valid
and enforceable first security interest of the Bank in the Collateral.
(b) Debtor shall keep the Collateral in good order and repair, shall
not waste or destroy the Collateral or any part thereof and shall not use the
Collateral in violation of any applicable statute, ordinance or policy of
insurance thereon. The Bank may examine and inspect the Collateral, the Debtor's
books and records and any documents or instruments relating to the Collateral at
any reasonable time or times wherever located.
(c) At its option, but without obligation to do so, the Bank may
discharge taxes, liens, security interests or other encumbrances at any time
levied or placed on the Collateral; may place and pay for insurance on the
Collateral; may order and pay for the repair, maintenance and preservation of
the Collateral; and may pay any fees for filing or recording such instruments or
documents as may be necessary or desirable to perfect the security interest
granted herein. The Debtor agrees to reimburse the Bank on demand for any
payment made or any expense incurred by the Bank pursuant to the foregoing
authorization, and all such payments and expenses shall constitute part of the
principal amount of Obligations hereby secured and shall bear interest at the
highest rate payable on the Obligations of the Debtor to the Bank.
(d) If any part of the Collateral is a fixture, the Debtor shall, on
demand, furnish the Bank with a disclaimer or release signed by all persons
having an interest in the real estate or any interest in the Collateral which is
prior to the Bank's interest.
III. EVENTS OF DEFAULT
The occurrence of any one or more of the "Events of Default" under the
Credit Agreement shall be an Event of Default hereunder.
-2-
<PAGE>
IV. REMEDIES
Upon and after the occurrence of an Event of Default or, if the
Obligation is a demand Obligation, then at any time after demand, all of the
Obligations may, at the option of the Bank and without demand (except for the
necessity of demand for any demand Obligation), notice or legal process of any
kind, be declared, and immediately shall become, due and payable.
The Bank shall have the following additional rights and remedies upon
the occurrence of an Event of Default:
(a) All of the rights and remedies of a secured party under the Uniform
Commercial Code as in effect from time to time in the Commonwealth of
Massachusetts (the "Uniform Commercial Code") or any other applicable law or at
equity, all of which rights and remedies shall be cumulative and non-exclusive,
to the extent permitted by law, in addition to any other rights and remedies
contained in this Agreement or in any document, instrument or agreement
evidencing, governing or securing the Obligations.
(b) The right to (i) take possession of the Collateral, without resort
to legal process and without prior notice to Debtor, and for that purpose Debtor
hereby irrevocably appoints the Bank its attorney-in-fact to enter upon any
premises on which the Collateral or any part thereof may be situated and remove
the Collateral therefrom, or (ii) require the Debtor to assemble the Collateral
and make it available to Bank in a place to be designated by the Bank, in its
sole discretion. The Debtor shall make available to the Bank all premises,
locations and facilities necessary for the Bank's taking possession of the
Collateral or for removing or putting the Collateral in saleable form.
(c) The right to sell or otherwise dispose of all or any part of the
Collateral by public or private sale or sales. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, the Bank will give the Debtor at least five (5)
days' prior written notice of the time and place of any public sale thereof or
of the time after which any private sale or any other intended disposition
(which may include, without limitation, a public sale or lease of all or part of
the Collateral) is to be made. The Debtor agrees that five (5) days is a
reasonable time for such notice. The Bank, its employees, attorneys and agents
may bid and become purchasers at any such sale, if public, and may purchase at
any private sale any of the Collateral that is of a type customarily sold on a
recognized market or which is subject to widely distributed standard price
quotations. Any public or private sale shall be free from any right of
redemption which the Debtor waives and releases. If there is a deficiency after
such sale and the application of the net proceeds from such sale, the Debtor
shall be responsible for the same, with interest.
V. WAIVERS
(a) THE BANK AND DEBTOR HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY
AND IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
INSTITUTED BY OR AGAINST THE BANK OR THE DEBTOR IN RESPECT OF THIS AGREEMENT,
ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THE
OBLIGATIONS HEREBY SECURED OR THE COLLATERAL (THE "LOAN DOCUMENTS").
(b) DEBTOR HEREBY ACKNOWLEDGES (I) THAT THIS AGREEMENT IS PART OF A
COMMERCIAL TRANSACTION.
VI. GENERAL
(a) No waiver by the Bank of any failure to pay or perform shall be
effective unless in writing nor operate as a waiver of any other failure to pay
or perform or of the same failure to pay or perform on a future occasion, nor
shall the failure or delay of the Bank to exercise, or the partial exercise of,
any right, power or privilege provided for hereunder in any circumstances
preclude the full exercise of such right, power or privilege in the same or
similar circumstances in the future or the exercise of any other right or
remedy.
-3-
<PAGE>
(b) This Agreement is intended as the final, complete and exclusive
statement of the provisions contained in this Agreement. No amendment,
modification, termination or waiver of any provision of this Agreement or
consent to any departure by the Debtor therefrom shall, in any event, be
effective unless the same shall be in writing and signed by the Bank. Any waiver
of, or consent to any departure from, any provision of this Agreement shall be
effective only in the specific instance of and for the specific purpose for
which it is given, and shall not be deemed to extend to similar situations or to
the same situation at a subsequent time. No notice to or demand upon the Debtor
shall in any case entitle Debtor to any other or further notice or demand in
similar or other circumstances.
(c) All rights of the Bank hereunder shall inure to the benefit of its
successors and assigns, and all obligations of the Debtor shall bind the heirs,
legal representatives, successors and assigns of Debtor. The Bank shall have the
unrestricted right at any time or from time to time, and without the Debtor's
consent, to assign all or any portion of its rights and obligations hereunder to
one or more banks or other financial institutions (each, an "Assignee"), and the
Debtor agrees that it shall execute, or cause to be executed, such documents,
including without limitation, amendments hereto and to any other documents
executed in connection herewith or pursuant hereto as the Bank shall deem
necessary to effect the foregoing. Upon the execution and delivery of
appropriate assignment documentation, amendments and any other documentation
required by the Bank in connection with such assignment, and the payment by
Assignee of the purchase
(the remainder of this page intentionally left blank)
-4-
<PAGE>
price agreed to by the Bank, and such Assignee, such Assignee shall have all of
the rights and obligations of the Bank hereunder (and under any and all other
Loan Documents) to the extent that such rights and obligations have been
assigned by the Bank pursuant to the assignment documentation between the Bank
and such Assignee, and the Bank shall be released from its obligations hereunder
and thereunder to a corresponding extent.
(d) Debtor shall pay to the Bank on demand any and all costs and
expenses, including reasonable attorney's fees (including the costs and expenses
allocated to the Bank's internal Legal Department), costs and expenses relating
to the appraisal and/or valuation of assets and all costs and expenses incurred
or paid by the Bank in exercising, collecting, defending, preserving,
protecting, administering or enforcing any of its rights in the Collateral or
under any of the Obligations.
(e) This Agreement and the security interest created hereby shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts, and the security interest created hereby shall be governed and
construed in accordance with the laws of the jurisdiction where the Collateral
is located.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall to any extent be held invalid or
unenforceable, then only such provision shall be deemed ineffective and the
remainder of this Agreement shall not be affected.
(g) If the Debtor is a partnership, all agreements and Obligations of
the Debtor under, pursuant to or in connection with this Agreement shall remain
in force and effect, notwithstanding any changes in the individuals comprising
the partnership and the term "Debtor" shall include any alternate or successor
partnership (but any predecessor partnerships and their partners shall not
thereby be released from any agreements or Obligations).
(h) Upon receipt of an affidavit of an officer of the Bank as to the
loss, theft, destruction or mutilation of this Agreement, and, in the case of
any such loss, theft, destruction or mutilation, upon cancellation of such
Agreement, the Debtor shall issue, in lieu thereof, a replacement agreement.
(i) Debtor hereby acknowledges receipt of a full completed copy of this
Agreement.
IN WITNESS WHEREOF, Debtor has duly authorized and executed this
Agreement as a sealed agreement this 6th day of August,1999.
WITNESS: DEBTOR:
Foilmark, Inc.
/s/ Jane E. Cohen By: /s/ Philip Leibel
- ------------------------------ ------------------------------------
Name: Philip Leibel
Title: Vice President-Finance
& Chief Financial Officer
FLEET NATIONAL BANK
By: /s/ James M. Clark
------------------------------------
Name: James M. Clark
Title: Vice President
-5-
<PAGE>
FLEET NATIONAL BANK SECURITY AGREEMENT
HoloPak Technologies, Inc., a Delaware corporation (the "Debtor")
having its chief executive office and principal place of business at 9 Cotters
Lane, East Brunswick, New Jersey, hereby grants to FLEET NATIONAL BANK, a
national banking association organized and existing under the laws of the United
States of America (the "Bank"), having an address at One Federal Street, a first
security interest in all of the Debtor's present and future right, title and
interest in and to any and all of the following property whether now existing or
hereafter created and wherever located (all of which is hereinafter called the
"Collateral"):
All equipment and fixtures, as defined in the Uniform Commercial Code
(as defined below) and all machinery, tools, parts, furniture, furnishings,
motor vehicles and other personal property, tangible or intangible, presently
owned or hereafter acquired by the Debtor, together with additions and
accessions thereto and substitutions and replacements therefor, and the products
and proceeds (including insurance and condemnation proceeds) thereof;
All inventory and goods as defined in the Uniform Commercial Code,
whether presently owned or hereafter acquired, including, without limitation,
all inventory in the possession of others or in transit, all goods held for sale
or lease or to be furnished under contracts for service or which have been so
furnished, raw materials, work in process, and materials used or consumed or to
be used or consumed in the business of the Debtor, and completed and unshipped
merchandise, and the products and proceeds (including insurance and condemnation
proceeds) of the foregoing;
All accounts, chattel paper, instruments, documents and general
intangibles, as defined in the Uniform Commercial Code, including those now
existing and those hereafter arising or coming into existence, and including,
without limitation, all rights of payment for goods sold or leased or services
rendered, all rights of payment under contracts whether or not currently due or
not yet earned by performance and accounts receivable arising or to arise
therefrom, and all rights of the Debtor in and to the goods represented thereby
including returned and repossessed goods, and all rights the Debtor may have or
acquire for securing or enforcing the foregoing, including, without limitation,
the rights to reserves, deposits, income tax refunds, choses in action,
judgments or insurance proceeds, and the products and proceeds of all of the
foregoing;
All goodwill, trade secrets, computer programs, customer lists, trade
names, trademarks, copyrights, franchises, licenses and patents and the proceeds
thereof;
All books and records relating to the conduct of Debtor's business;
All deposit accounts maintained by the Debtor with the Bank or other
bank, trust company, investment firm or fund or any similar institution or
organization and the proceeds thereof;
Any deposits, credits, collateral or property of the Debtor at any time
now or hereafter in the possession, custody, or control of the Bank or any
entity under the control of Fleet Financial Group, Inc. or in transit to any of
them and the proceeds thereof (the "Deposits and Securities");
All investment property, including, without limitation, all financial
assets, all certificated and uncertificated securities, security entitlements,
security accounts, commodity accounts and commodity contracts;
-1-
<PAGE>
to secure the payment and performance of all liabilities and obligations now or
hereafter owing from the Debtor and Foilmark, Inc., a Delaware corporation (the
"Borrower") to the Bank of whatever kind or nature, whether or not currently
contemplated at the time of this Agreement, whether such obligations be direct
or indirect, absolute or contingent or due or to become due, including all
obligations of the Debtor, actual or contingent, in respect of letters of credit
or banker's acceptances issued by the Bank for the account of or guaranteed by
the Debtor and all obligations of any partnership or joint venture as to which
Debtor is or may become personally liable (the "Obligations", which term shall
include all accrued interest and all costs and expenses, including reasonable
attorney's fees, including the costs and expenses allocated to the Bank's
internal Legal Department, costs and expenses relating to the appraisal and/or
valuation of assets and all costs and expenses incurred or paid by the Bank in
exercising, preserving, defending, collecting, enforcing, or protecting any of
its rights under the Obligations or hereunder or with respect to the Collateral
or in any litigation arising out of the transactions evidenced by the
Obligations). The Bank shall have the unrestricted right from time to time to
apply (or to change any application already made) the proceeds of any of the
Collateral to any Obligations, as the Bank, in its sole discretion, may
determine.
I. REPRESENTATIONS AND WARRANTIES OF DEBTOR
In addition to the representations and warranties set forth in Section
6 of that certain Guaranty of the Debtor dated August 6, 1999 in favor of the
Bank, the Debtor hereby further represents and warrants that:
(a) The place where Debtor keeps its records concerning the Collateral,
the Debtor's principal place of business and the Debtor's executive offices, is
the location set forth at the beginning of this Agreement. The Collateral is now
and will continue to be kept at the location set forth at the beginning of this
Agreement until such time as the written consent of the Bank to a change in
location is received.
(b) If any of the Collateral is to be attached to real estate, a
description of said real estate has been delivered to the Bank and the name and
address of each record owner is Highview Associates, 33 Cotters Lane, East
Brunswick, New Jersey with respect to 15 Cotters Lane and 21 Cotters Lane, East
Brunswick, New Jersey, and the Debtor will respect to 9 Cotters Lane, East
Brunswick, New Jersey.
II. COVENANTS OF DEBTOR
The Debtor hereby acknowledges and agrees to be bound by the covenants
applicable to the Debtor set forth in Sections 7 and 8 of that certain Credit
Agreement dated of even date between the Borrower and the Bank.
In addition, the Debtor hereby agrees and covenants that:
(a) Debtor shall, at its expense, furnish to the Bank, upon the Bank's
demand, such further information, shall execute and deliver to the Bank such
financing statements and other agreements, instruments or documents, and shall
do all such acts as the Bank may, at any time or from time to time, reasonably
request, or as may be necessary or appropriate to establish and maintain a valid
and enforceable first security interest of the Bank in the Collateral.
(b) Debtor shall keep the Collateral in good order and repair, will not
waste or destroy the Collateral or any part thereof and will not use the
Collateral in violation of any applicable statute, ordinance or policy of
insurance thereon. The Bank may examine and inspect the Collateral, the Debtor's
books and records and any documents or instruments relating to the Collateral at
any reasonable time or times wherever located.
(c) At its option, but without obligation to do so, the Bank may
discharge taxes, liens, security interests or other encumbrances at any time
levied or placed on the Collateral; may place and pay for insurance on the
Collateral; may order
-2-
<PAGE>
and pay for the repair, maintenance and preservation of the Collateral; and may
pay any fees for filing or recording such instruments or documents as may be
necessary or desirable to perfect the security interest granted herein. The
Debtor agrees to reimburse the Bank on demand for any payment made or any
expense incurred by the Bank pursuant to the foregoing authorization, and all
such payments and expenses shall constitute part of the principal amount of
Obligations hereby secured and shall bear interest at the highest rate payable
on the Obligations of the Debtor to the Bank.
(d) If any part of the Collateral is a fixture, the Debtor shall, on
demand, furnish the Bank with a disclaimer or release signed by all persons
having an interest in the real estate or any interest in the Collateral which is
prior to the Bank's interest.
III. EVENTS OF DEFAULT
The occurrence of any one or more of "Events of Default" under the
Credit Agreement shall be an Event of Default hereunder.
IV. REMEDIES
Upon and after the occurrence of an Event of Default or, if the
Obligation is a demand Obligation, then at any time after demand, all of the
Obligations may, at the option of the Bank and without demand (except for the
necessity of demand for any demand Obligation), notice or legal process of any
kind, be declared, and immediately shall become, due and payable.
The Bank shall have the following additional rights and remedies:
(a) All of the rights and remedies of a secured party under the Uniform
Commercial Code in effect from time to time in the state where the Collateral is
then located (the "Uniform Commercial Code") or any other applicable law or at
equity, all of which rights and remedies shall be cumulative and non-exclusive,
to the extent permitted by law, in addition to any other rights and remedies
contained in this Security Agreement or in any document, instrument or agreement
evidencing, governing or securing the Obligations.
(b) The right to (i) take possession of the Collateral, without resort
to legal process and without prior notice to Debtor, and for that purpose Debtor
hereby irrevocably appoints the Bank its attorney-in-fact to enter upon any
premises on which the Collateral or any part thereof may be situated and remove
the Collateral therefrom, or (ii) require the Debtor to assemble the Collateral
and make it available to Bank in a place to be designated by the Bank, in its
sole discretion. The Debtor shall make available to the Bank all premises,
locations and facilities necessary for the Bank's taking possession of the
Collateral or for removing or putting the Collateral in saleable form.
(c) The right to sell or otherwise dispose of all or any part of the
Collateral by public or private sale or sales. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, the Bank will give the Debtor at least five (5)
days' prior written notice of the time and place of any public sale thereof or
of the time after which any private sale or any other intended disposition
(which may include, without limitation, a public sale or lease of all or part of
the Collateral) is to be made. The Debtor agrees that five (5) days is a
reasonable time for such notice. The Bank, its employees, attorneys and agents
may bid and become purchasers at any such sale, if public, and may purchase at
any private sale any of the Collateral that is of a type customarily sold on a
recognized market or which is subject to widely distributed standard price
quotations. Any public or private sale shall be free from any right of
redemption which the Debtor waives and releases. If there is a deficiency after
such sale and the application of the net proceeds from such sale, the Debtor
shall be responsible for the same, with interest.
-3-
<PAGE>
(d) The Bank shall have the right (and Debtor irrevocably appoints the
Bank as attorney-in-fact for the Debtor for this purpose, such appointment being
coupled with an interest), without prior notice to Debtor and without resort to
legal process, to notify the persons liable for payment of the Accounts at any
time and direct such persons to make payments directly to the Bank, and to
perform all acts the Debtor could take to collect on the Account, including, but
without limitation, the right to notify postal authorities to change the address
for delivery, open mail, endorse checks, bring collection suits, and realize
upon Collateral securing the Accounts. At the Bank's request, all bills and
statements sent by the Debtor to the persons liable for payments of the Accounts
shall state that they have been assigned to, and are solely payable to, the
Bank, and Debtor shall direct persons liable for the payment of the Accounts to
pay directly to the Bank any sums due or to become due on account thereof.
(e) The Bank may from time to time without demand or notice apply and
set off any or all of the Deposits and Securities against, any and all
Obligations even though such Obligations be unmatured, and regardless of the
adequacy of any other collateral securing such Obligations.
V. WAIVERS
(A) THE BANK AND DEBTOR KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND
IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
INSTITUTED BY OR AGAINST THE BANK OR THE DEBTOR IN RESPECT OF THIS AGREEMENT,
ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THE
OBLIGATIONS HEREBY SECURED OR THE COLLATERAL (THE "LOAN DOCUMENTS").
(B) DEBTOR HEREBY ACKNOWLEDGES (I) THAT THIS AGREEMENT IS PART OF A
COMMERCIAL TRANSACTION.
VI. GENERAL
(a) No waiver by the Bank of any failure to pay or perform shall be
effective unless in writing nor operate as a waiver of any other failure to pay
or perform or of the same failure to pay or perform on a future occasion, nor
shall the failure or delay of the Bank to exercise, or the partial exercise of,
any right, power or privilege provided for hereunder in any circumstances
preclude the full exercise of such right, power or privilege in the same or
similar circumstances in the future or the exercise of any other right or
remedy.
(b) This Security Agreement is intended as the final, complete and
exclusive statement of the provisions contained in this Security Agreement. No
amendment, modification, termination or waiver of any provision of this Security
Agreement or consent to any departure by the Debtor therefrom shall, in any
event, be effective unless the same shall be in writing and signed by the Bank.
Any waiver of, or consent to any departure from, any provision of this Security
Agreement shall be effective only in the specific instance of and for the
specific purpose for which it is given, and shall not be deemed to extend to
similar situations or to the same situation at a subsequent time. No notice to
or demand upon the Debtor shall in any case entitle Debtor to any other or
further notice or demand in similar or other circumstances.
(c) All rights of the Bank hereunder shall inure to the benefit of its
successors and assigns, and all obligations of the Debtor shall bind the heirs,
legal representatives, successors and assigns of Debtor. The Bank shall have the
unrestricted right at any time or from time to time, and without the Debtor's
consent, to assign all or any portion of its rights and obligations hereunder to
one or more banks or other financial institutions (each, an "Assignee"), and the
Debtor
-4-
<PAGE>
agrees that it shall execute, or cause to be executed, such documents, including
without limitation, amendments hereto and to any other documents executed in
connection herewith or pursuant hereto as the Bank shall deem necessary to
effect the foregoing. Upon the execution and delivery of appropriate assignment
documentation, amendments and any other documentation required by the Bank in
connection with such assignment, and the payment by Assignee of the purchase
price agreed to by the Bank, and such Assignee, such Assignee shall have all of
the rights and obligations of the Bank hereunder (and under any and all other
Loan Documents) to the extent that such rights and obligations have been
assigned by the Bank pursuant to the assignment documentation between the Bank
and such Assignee, and the Bank shall be released from its obligations hereunder
and thereunder to a corresponding extent.
(d) Debtor shall pay to the Bank on demand any and all costs and
expenses, including reasonable attorney's fees (including the costs and expenses
allocated to the Bank's internal Legal Department), costs and expenses relating
to the appraisal and/or valuation of assets and all costs and expenses incurred
or paid by the Bank in exercising, collecting, establishing, defending,
preserving, protecting, or enforcing any of its rights in the Collateral or
under any of the Obligations.
(e) This Agreement and the security interest created hereby shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall to any extent be held invalid or
unenforceable, then only such provision shall be deemed ineffective and the
remainder of this Agreement shall not be affected.
(g) If the Debtor is a partnership, all agreements and Obligations of
the Debtor under, pursuant to or in connection with this Agreement shall remain
in force and effect, notwithstanding any changes in the individuals comprising
the partnership and the term "Debtor" shall include any alternate or successor
partnership (but any predecessor partnerships and their partners shall not
thereby be released from any agreements or Obligations).
(h) Upon receipt of an affidavit of an officer of the Bank as to the
loss, theft, destruction or mutilation of this Security Agreement, and, in the
case of any such loss, theft, destruction or mutilation, upon cancellation of
such Agreement, the Debtor shall issue, in lieu thereof, a replacement
agreement.
(i) Debtor hereby acknowledges receipt of a full completed copy of this
Security Agreement.
IN WITNESS WHEREOF, Debtor has duly authorized and executed this
Agreement as a sealed agreement this 6th day of August, 1999.
WITNESS: HOLOPAK TECHONOLOGIES, INC.
/s/ Jane E. Cohen By: /s/ Philip Leibel
- -------------------------------- ------------------------------------
Name: Philip Leibel
Title: Treasurer & Chief Fiancial Officer
FLEET NATIONAL BANK
By: /s/ James M. Clark
------------------------------------
Name: James M. Clark
Title: Vice President
-5-
<PAGE>
FLEET NATIONAL BANK SECURITY AGREEMENT
Transfer Print Foils, Inc., a New Jersey corporation (the "Debtor")
having its chief executive office and principal place of business at 9 Cotters
Lane, East Brunswick, New Jersey, hereby grants to FLEET NATIONAL BANK, a
national banking association organized and existing under the laws of the United
States of America (the "Bank"), having an address at One Federal Street, a first
security interest in all of the Debtor's present and future right, title and
interest in and to any and all of the following property whether now existing or
hereafter created and wherever located (all of which is hereinafter called the
"Collateral"):
All equipment and fixtures, as defined in the Uniform Commercial Code
(as defined below) and all machinery, tools, parts, furniture, furnishings,
motor vehicles and other personal property, tangible or intangible, presently
owned or hereafter acquired by the Debtor, together with additions and
accessions thereto and substitutions and replacements therefor, and the products
and proceeds (including insurance and condemnation proceeds) thereof;
All inventory and goods as defined in the Uniform Commercial Code,
whether presently owned or hereafter acquired, including, without limitation,
all inventory in the possession of others or in transit, all goods held for sale
or lease or to be furnished under contracts for service or which have been so
furnished, raw materials, work in process, and materials used or consumed or to
be used or consumed in the business of the Debtor, and completed and unshipped
merchandise, and the products and proceeds (including insurance and condemnation
proceeds) of the foregoing;
All accounts, chattel paper, instruments, documents and general
intangibles, as defined in the Uniform Commercial Code, including those now
existing and those hereafter arising or coming into existence, and including,
without limitation, all rights of payment for goods sold or leased or services
rendered, all rights of payment under contracts whether or not currently due or
not yet earned by performance and accounts receivable arising or to arise
therefrom, and all rights of the Debtor in and to the goods represented thereby
including returned and repossessed goods, and all rights the Debtor may have or
acquire for securing or enforcing the foregoing, including, without limitation,
the rights to reserves, deposits, income tax refunds, choses in action,
judgments or insurance proceeds, and the products and proceeds of all of the
foregoing;
All goodwill, trade secrets, computer programs, customer lists, trade
names, trademarks, copyrights, franchises, licenses and patents and the proceeds
thereof;
All books and records relating to the conduct of Debtor's business;
All deposit accounts maintained by the Debtor with the Bank or other
bank, trust company, investment firm or fund or any similar institution or
organization and the proceeds thereof;
Any deposits, credits, collateral or property of the Debtor at any time
now or hereafter in the possession, custody, or control of the Bank or any
entity under the control of Fleet Financial Group, Inc. or in transit to any of
them and the proceeds thereof (the "Deposits and Securities");
All investment property, including, without limitation, all financial
assets, all certificated and uncertificated securities, security entitlements,
security accounts, commodity accounts and commodity contracts;
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<PAGE>
to secure the payment and performance of all liabilities and obligations now or
hereafter owing from the Debtor and Foilmark, Inc., a Delaware corporation (the
"Borrower") to the Bank of whatever kind or nature, whether or not currently
contemplated at the time of this Agreement, whether such obligations be direct
or indirect, absolute or contingent or due or to become due, including all
obligations of the Debtor, actual or contingent, in respect of letters of credit
or banker's acceptances issued by the Bank for the account of or guaranteed by
the Debtor and all obligations of any partnership or joint venture as to which
Debtor is or may become personally liable (the "Obligations", which term shall
include all accrued interest and all costs and expenses, including reasonable
attorney's fees, including the costs and expenses allocated to the Bank's
internal Legal Department, costs and expenses relating to the appraisal and/or
valuation of assets and all costs and expenses incurred or paid by the Bank in
exercising, preserving, defending, collecting, enforcing, or protecting any of
its rights under the Obligations or hereunder or with respect to the Collateral
or in any litigation arising out of the transactions evidenced by the
Obligations). The Bank shall have the unrestricted right from time to time to
apply (or to change any application already made) the proceeds of any of the
Collateral to any Obligations, as the Bank, in its sole discretion, may
determine.
I. REPRESENTATIONS AND WARRANTIES OF DEBTOR
In addition to the representations and warranties set forth in Section
6 of that certain Guaranty of the Debtor dated August 6, 1999 in favor of the
Bank, the Debtor hereby further represents and warrants that:
(a) The place where Debtor keeps its records concerning the Collateral,
the Debtor's principal place of business and the Debtor's executive offices, is
the location set forth at the beginning of this Agreement. The Collateral is now
and will continue to be kept at the location set forth at the beginning of this
Agreement until such time as the written consent of the Bank to a change in
location is received.
(b) If any of the Collateral is to be attached to real estate, a
description of said real estate has been delivered to the Bank and the name and
address of each record owner is Highview Associates, 33 Cotters Lane, East
Brunswick, New Jersey with respect to 15 Cotters Lane and 21 Cotters Lane, East
Brunswick, New Jersey, and the Debtor will respect to 9 Cotters Lane, East
Brunswick, New Jersey.
II. COVENANTS OF DEBTOR
The Debtor hereby acknowledges and agrees to be bound by the covenants
applicable to the Debtor set forth in Sections 7 and 8 of that certain Credit
Agreement dated of even date between the Borrower and the Bank.
In addition, the Debtor hereby agrees and covenants that:
(a) Debtor shall, at its expense, furnish to the Bank, upon the Bank's
demand, such further information, shall execute and deliver to the Bank such
financing statements and other agreements, instruments or documents, and shall
do all such acts as the Bank may, at any time or from time to time, reasonably
request, or as may be necessary or appropriate to establish and maintain a valid
and enforceable first security interest of the Bank in the Collateral.
(b) Debtor shall keep the Collateral in good order and repair, will not
waste or destroy the Collateral or any part thereof and will not use the
Collateral in violation of any applicable statute, ordinance or policy of
insurance thereon. The Bank may examine and inspect the Collateral, the Debtor's
books and records and any documents or instruments relating to the Collateral at
any reasonable time or times wherever located.
(c) At its option, but without obligation to do so, the Bank may
discharge taxes, liens, security interests or other encumbrances at any time
levied or placed on the Collateral; may place and pay for insurance on the
Collateral; may order and pay for the repair, maintenance and preservation of
the Collateral; and may pay any fees for filing or recording such instruments or
documents as may be necessary or desirable to perfect the security interest
granted herein. The Debtor agrees
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<PAGE>
to reimburse the Bank on demand for any payment made or any expense incurred by
the Bank pursuant to the foregoing authorization, and all such payments and
expenses shall constitute part of the principal amount of Obligations hereby
secured and shall bear interest at the highest rate payable on the Obligations
of the Debtor to the Bank.
(d) If any part of the Collateral is a fixture, the Debtor shall, on
demand, furnish the Bank with a disclaimer or release signed by all persons
having an interest in the real estate or any interest in the Collateral which is
prior to the Bank's interest. .
III. EVENTS OF DEFAULT
The occurrence of any one or more of the "Events of Default" under the
Credit Agreement shall be an Event of Default hereunder.
IV. REMEDIES
Upon and after the occurrence of an Event of Default or, if the
Obligation is a demand Obligation, then at any time after demand, all of the
Obligations may, at the option of the Bank and without demand (except for the
necessity of demand for any demand Obligation), notice or legal process of any
kind, be declared, and immediately shall become, due and payable.
The Bank shall have the following additional rights and remedies:
(a) All of the rights and remedies of a secured party under the Uniform
Commercial Code in effect from time to time in the state where the Collateral is
then located (the "Uniform Commercial Code") or any other applicable law or at
equity, all of which rights and remedies shall be cumulative and non-exclusive,
to the extent permitted by law, in addition to any other rights and remedies
contained in this Security Agreement or in any document, instrument or agreement
evidencing, governing or securing the Obligations.
(b) The right to (i) take possession of the Collateral, without resort
to legal process and without prior notice to Debtor, and for that purpose Debtor
hereby irrevocably appoints the Bank its attorney-in-fact to enter upon any
premises on which the Collateral or any part thereof may be situated and remove
the Collateral therefrom, or (ii) require the Debtor to assemble the Collateral
and make it available to Bank in a place to be designated by the Bank, in its
sole discretion. The Debtor shall make available to the Bank all premises,
locations and facilities necessary for the Bank's taking possession of the
Collateral or for removing or putting the Collateral in saleable form.
(c) The right to sell or otherwise dispose of all or any part of the
Collateral by public or private sale or sales. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, the Bank will give the Debtor at least five (5)
days' prior written notice of the time and place of any public sale thereof or
of the time after which any private sale or any other intended disposition
(which may include, without limitation, a public sale or lease of all or part of
the Collateral) is to be made. The Debtor agrees that five (5) days is a
reasonable time for such notice. The Bank, its employees, attorneys and agents
may bid and become purchasers at any such sale, if public, and may purchase at
any private sale any of the Collateral that is of a type customarily sold on a
recognized market or which is subject to widely distributed standard price
quotations. Any public or private sale shall be free from any right of
redemption which the Debtor waives and releases. If there is a deficiency after
such sale and the application of the net proceeds from such sale, the Debtor
shall be responsible for the same, with interest.
(d) The Bank shall have the right (and Debtor irrevocably appoints the
Bank as attorney-in-fact for the Debtor for this purpose, such appointment being
coupled with an interest), without prior notice to Debtor and without resort to
legal process, to notify the persons liable for payment of the Accounts at any
time and direct such persons to make payments directly to the Bank, and to
perform all acts the Debtor could take to collect on the Account, including, but
without limitation, the right to notify postal authorities to change the address
for delivery, open mail, endorse checks, bring collection
-3-
<PAGE>
suits, and realize upon Collateral securing the Accounts. At the Bank's request,
all bills and statements sent by the Debtor to the persons liable for payments
of the Accounts shall state that they have been assigned to, and are solely
payable to, the Bank, and Debtor shall direct persons liable for the payment of
the Accounts to pay directly to the Bank any sums due or to become due on
account thereof.
(e) The Bank may from time to time without demand or notice apply and
set off any or all of the Deposits and Securities against, any and all
Obligations even though such Obligations be unmatured, and regardless of the
adequacy of any other collateral securing such Obligations.
V. WAIVERS
(A) THE BANK AND DEBTOR KNOWINGLY, INTENTIONALLY, VOLUNTARILY AND
IRREVOCABLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING HEREAFTER
INSTITUTED BY OR AGAINST THE BANK OR THE DEBTOR IN RESPECT OF THIS AGREEMENT,
ANY DOCUMENT, INSTRUMENT OR AGREEMENT EVIDENCING, GOVERNING OR SECURING THE
OBLIGATIONS HEREBY SECURED OR THE COLLATERAL (THE "LOAN DOCUMENTS").
(B) DEBTOR HEREBY ACKNOWLEDGES (I) THAT THIS AGREEMENT IS PART OF A
COMMERCIAL TRANSACTION
VI. GENERAL
(a) No waiver by the Bank of any failure to pay or perform shall be
effective unless in writing nor operate as a waiver of any other failure to pay
or perform or of the same failure to pay or perform on a future occasion, nor
shall the failure or delay of the Bank to exercise, or the partial exercise of,
any right, power or privilege provided for hereunder in any circumstances
preclude the full exercise of such right, power or privilege in the same or
similar circumstances in the future or the exercise of any other right or
remedy.
(b) This Security Agreement is intended as the final, complete and
exclusive statement of the provisions contained in this Security Agreement. No
amendment, modification, termination or waiver of any provision of this Security
Agreement or consent to any departure by the Debtor therefrom shall, in any
event, be effective unless the same shall be in writing and signed by the Bank.
Any waiver of, or consent to any departure from, any provision of this Security
Agreement shall be effective only in the specific instance of and for the
specific purpose for which it is given, and shall not be deemed to extend to
similar situations or to the same situation at a subsequent time. No notice to
or demand upon the Debtor shall in any case entitle Debtor to any other or
further notice or demand in similar or other circumstances.
(c) All rights of the Bank hereunder shall inure to the benefit of its
successors and assigns, and all obligations of the Debtor shall bind the heirs,
legal representatives, successors and assigns of Debtor. The Bank shall have the
unrestricted right at any time or from time to time, and without the Debtor's
consent, to assign all or any portion of its rights and obligations hereunder to
one or more banks or other financial institutions (each, an "Assignee"), and the
Debtor agrees that it shall execute, or cause to be executed, such documents,
including without limitation, amendments hereto and to any other documents
executed in connection herewith or pursuant hereto as the Bank shall deem
necessary to effect the foregoing. Upon the execution and delivery of
appropriate assignment documentation, amendments and any other documentation
required by the Bank in connection with such assignment, and the payment by
Assignee of the purchase price agreed to by the Bank, and such Assignee, such
Assignee shall have all of the rights and obligations of the Bank hereunder (and
under any and all other Loan Documents) to the extent that such rights and
obligations have been assigned by the Bank pursuant to the assignment
documentation between the Bank and such Assignee, and the Bank shall be released
from its obligations hereunder and thereunder to a corresponding extent.
(d) Debtor shall pay to the Bank on demand any and all costs and
expenses, including reasonable attorney's fees (including the costs and expenses
allocated to the Bank's internal Legal Department), costs and expenses relating
to the appraisal and/or valuation of assets and all costs and expenses incurred
or paid by the Bank in exercising, collecting,
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<PAGE>
establishing, defending, preserving, protecting, or enforcing any of its rights
in the Collateral or under any of the Obligations.
(e) This Agreement and the security interest created hereby shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts.
(f) Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall to any extent be held invalid or
unenforceable, then only such provision shall be deemed ineffective and the
remainder of this Agreement shall not be affected.
(g) If the Debtor is a partnership, all agreements and Obligations of
the Debtor under, pursuant to or in connection with this Agreement shall remain
in force and effect, notwithstanding any changes in the individuals comprising
the partnership and the term "Debtor" shall include any alternate or successor
partnership (but any predecessor partnerships and their partners shall not
thereby be released from any agreements or Obligations).
(h) Upon receipt of an affidavit of an officer of the Bank as to the
loss, theft, destruction or mutilation of this Security Agreement, and, in the
case of any such loss, theft, destruction or mutilation, upon cancellation of
such Agreement, the Debtor shall issue, in lieu thereof, a replacement
agreement.
(i) Debtor hereby acknowledges receipt of a full completed copy of this
Security Agreement.
IN WITNESS WHEREOF, Debtor has duly authorized and executed this
Agreement as a sealed agreement this 6th day of August, 1999.
WITNESS: TRANSFER PRINT FOILS, INC.
/s/ Jane E. Cohen By: /s/ Philip Leibel
- -------------------------------- ------------------------------------
Name: Philip Leibel
Title: Treasurer & Chief Fiancial Officer
FLEET NATIONAL BANK
By: /s/ James M. Clark
------------------------------------
Name: James M. Clark
Title: Vice President
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<PAGE>
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of the first
day of July, 1999, by and between Foilmark, Inc., a Delaware corporation (the
"Company") and Carol J. Robie (hereinafter, the "Employee").
RECITALS
WHEREAS, the Employee has been employed by the Company in the capacity
of Vice-President of Administration and Secretary of the Company since October
18, 1993,
WHEREAS, the Employee possesses considerable experience and an intimate
knowledge of the business of the Company and has played a key role in its
development, and
WHEREAS, the Employee has demonstrated unique qualifications to act in
an executive capacity for the Company and the Company expects that the
Employee's contributions will continue to be substantial and meritorious; and
WHEREAS, the Company is desirous of assuring the continued employment
of the Employee in the above stated capacity, and the Employee is desirous of
having such assurance.
WITNESSETH
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT
The Company hereby employs the Employee a senior level executive
employee of the Company, and Employee hereby accepts such employment. During the
term of employment under this Agreement (the "Employment Term"), the Employee
shall perform such duties as are requested from time to time by the Board of
Directors of the Company and/or the Chief Executive Officer of the Company.
2. PERFORMANCE
During the Employment Term, the Employee shall devote her entire
business efforts to the performance of her duties thereunder.
3. TERM
Unless otherwise terminated in accordance with Section 5 or 6 hereof,
the Employment Term of this Agreement shall be for an initial term of three
years commencing on the date hereof, and continuing after such initial term for
successive one-year renewal terms.
<PAGE>
4. COMPENSATION FOR EMPLOYMENT
(a) The basic annual compensation of the Employee for her employment
services to the Company and to all of its affiliated companies during the
Employment Term shall be $72,000 (the "Salary"), which the Company shall pay to
the Employee in accordance with the normal payroll policy and in compliance with
federal and state law. The Company may adjust the Salary upward on an annual
basis, but the Salary shall not be decreased.
(b) Commencing on the date hereof (the "Bonus Starting Date") and
continuing during the Employment Term, the Company shall pay the Employee a
bonus in accordance with this paragraph 4(b). For each fiscal year during the
Employment Term, the Board of Directors, in its sole discretion, shall establish
a budget for pretax income in accordance with generally accepted accounting
principles consistently applied ("GAAP") and the Employee's bonus will vary as a
percentage of Salary in relation to the percentage achievement of that budget as
follows:
<TABLE>
<CAPTION>
PERCENTAGE OF BONUS ATTAINED PERCENTAGE OF SALARY EARNED AS BONUS
---------------------------- ------------------------------------
<S> <C>
less than 80% 0%
80% 6.5%
90% 13.0%
100% 20.0%
110% 26.5%
120% and above 33.0%
</TABLE>
For a percentage of budget achievement between the benchmarks, the percentage of
the Salary shall be linearly interpolated, provided that no bonus shall be paid
for achievement less than 80% of budget and the maximum bonus shall be 50% of
Salary in any event. In the case of a partial fiscal year, the Company shall
adjust the bonus to correspond to the Company's budget and the Salary for the
portion of the applicable fiscal year that shall be included in the Employment
term. Notwithstanding the foregoing, the Employee's initial bonus period (the
"Initial Bonus Period") shall be the period starting with the Bonus Starting
Date and ending on fiscal year ended June 30, 2000, and the Company shall use
its budget for that period (a copy of which the Company has provided to the
Employee) to determine the Employee's eligibility for a bonus, and then apply
the applicable bonus percentage to that portion of the Employee's annual Salary
that relates to the Initial Bonus Period. The Employee's second bonus period
shall be the period beginning on July 1, 2000 and ending with the last day of
the Company's fiscal year, and the Company shall prepare a budget for that
period and determine the Employee's eligibility for a bonus in the manner
described for the Initial Bonus Period. The bonus program shall continue with
each extension of the Employment Term as defined in paragraph 3 hereof, with the
bonus periods corresponding to the Company's fiscal year. Bonuses shall continue
to be calculated as described in this paragraph.
-2-
<PAGE>
(c) During the Employment Term, the Company shall also provide the
Employee with those fringe benefits specified on Exhibit A (the "Fringe
Benefits"). The Company shall also reimburse the Employee for any reasonable
business expenses incurred on the Company's behalf in connection with the
performance of her services during the Employment Term.
(d) Employee with continue to be eligible for participation in
Foilmark's Qualified Stock Option Plan (the "Foilmark Plan") to purchase shares
of the Company's common stock, without par value, at an exercise price pursuant
to and in accordance with such Foilmark Plan.
5. TERMINATION WITHOUT COMPENSATION
(a) Partial or Total Disability. If the Employee is unable to perform
the essential functions of her job with reasonable accommodations by reason of
non-employment related illness, injury or incapacity for six months (during
which time she shall continue to be compensated hereunder), the Company may
terminate the Employment term, and the Company shall not have any further
liability or obligation to the Employee hereunder except for any unpaid Salary,
any unpaid bonus earned by Employee pursuant to Section 4(b) hereof for the
bonus period in which termination of employment occurs, adjusted pro rata based
upon the portion of such bonus period in which the Employee was actually
employed by the Company hereunder and any Fringe Benefits accrued to the date of
termination, provided, however, that Employee reserves any rights that she may
have against the Company with respect to any claims for damages and/or benefits
under any Workers' Compensation Act, or otherwise, arising out of injuries,
illness or incapacity incurred as a result of her employment with the Company
(an "Employment Injury"). In the event of any dispute under this Section 5(a),
the Employee shall submit to a physical examination by a licensed physician
mutually satisfactory to the Company and the Employee, the cost of such
examination to be paid by the Company, and the determination of such physician
shall be determinative. If, after termination due to disability as provided
herein, the Employee obtains, at her sole expense, medical certification from a
licensed physician reasonably satisfactory to the Company that she is able to
perform the essential functions of her job with reasonable accommodations, the
Company shall offer to employ the Employee pursuant to the terms of this
Agreement for the remainder of the initial term or any renewal term in effect at
the time of termination, except that the Company shall not be required to
re-employ the Employee at the same officer position if the Company shall have
elected another person to such position during the period of the Employee's
disability and such other person continues in such position at the time of the
Employee's return to employment.
(b) DEATH. If the Employee dies, this Employment Agreement (except for
the provisions of Sections 6, 10 and 11 hereof) shall terminate, and thereafter
the Company shall not have any further liability or obligation to the Employee,
her executors, administrators, heirs, assigns or any other person claiming under
or through him except for unpaid Salary, any unpaid bonus earned by Employee
pursuant to Section 4(b) hereof for the bonus period in which Employee's death
occurs, adjusted pro rata based upon the portion of such bonus period in which
the Employee was actually employed by the Company hereunder and any Fringe
Benefits, accrued to the date of her death.
-3-
<PAGE>
(c) CAUSE. The Company may terminate the Employee's employment for
"cause" by giving the Employee 60 days' written notice of the termination date
and thereafter the Company shall not have any further liability or obligation to
the Employee. For the purposes of this Agreement, "cause" shall mean the failure
of the Employee to observe or perform (other than by reason of illness, injury,
or incapacity) any of the material terms or provisions of this Agreement,
dishonesty, willful misconduct, material neglect of the Company's business,
conviction of a felony or other crime involving moral turpitude,
misappropriation of funds or habitual insobriety.
6. TERMINATION WITH COMPENSATION
(a) NON-RENEWAL OF TERM. The Employment Term may be terminated by
either party hereto as of the end of the initial term or any renewal term then
in effect by giving written notice of the intention to terminate the Employment
Term at least 90 days prior to the proposed termination date. If the Company
terminates the Employment Term under such circumstances, the Company shall
provide the Employee with the Termination Compensation specified in Section
6(c).
(b) WITHOUT CAUSE. During the initial three year term, the Company
shall have the right to terminate the Employment Term without cause at any time
by giving the Employee 60 days' written notice of the termination date. Under
such circumstances, the Company shall provide the Employee with the Termination
Compensation specified in Section 6(c).
(c) TERMINATION COMPENSATION. The "Termination Compensation" shall
consist of payment of the Employee's Salary under Section 4(a) hereof, at the
level in effect at the date of termination, for the longer of (A) any remaining
part of the initial three year term of the Employment Term or (B) 12 months. The
Employee shall not be entitled to any Termination Compensation under this
Section 6 unless the Employee executes and delivers to the Company after a
notice of termination a release in a form satisfactory to the Company in its
sole discretion by which the Employee releases the Company and its affiliates,
and the Company so releases the Employee, from any obligations and liabilities
of any type whatsoever, except for the Company's obligation to provide the
Salary specified in this Section 6, any unpaid bonus earned by Employee pursuant
to Section 4(b) hereof for the bonus period in which termination of employment
occurs, adjusted pro rata based upon the portion of such bonus period in which
the Employee was actually employed by the Company hereunder and any liability
for any Employment Injury. The parties hereto acknowledge that the Salary to be
provided under this Section 6 is to be provided in consideration for the
above-specified release.
(d) EXCLUSIVITY. Upon termination by the Company under Section 6(a) or
Section 6(b), the Company shall not have any obligation to the Employee, her
executors, administrators, heirs or assigns or any other person claiming under
or through him other than to provide the Termination Compensation under the
terms and conditions of Section 6(c) and any other obligation that the Company
may have for any Employment Injury.
7. AGREEMENT NOT TO COMPETE
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<PAGE>
(a) During the Non-Competition Period (defined below), the Employee
shall not directly or indirectly, in any capacity, without the express written
consent of the Chief Executive Officer and the Board of Directors of the
Company, render her services, engage in any business activity or have a
financial interest, in any business (other than as the holder of not more than
one percent of the total outstanding stock of any publicly-held company) that is
competitive with any of those business activities in which the Company, any
subsidiary of any of the Company or any person, partnership, association,
corporation, or other entity controlled by the Company (collectively, the
"Foilmark Parties") shall have been engaged during her employment by the
Company, nor shall the Employee assist any person or entity that is engaged in
such business, including by making Foilmark Information (defined below)
available to any such person or entity. In addition, the Employee shall not
directly or indirectly solicit or otherwise encourage any of the employees of
any Foilmark Party to terminate her employment with the applicable Foilmark
Party. If a court determines that the foregoing restrictions are too broad or
otherwise unreasonable under applicable law, including with respect to time and
space, the court is hereby requested and authorized by the parties hereto to
review the foregoing restrictions to include the maximum restrictions allowable
under applicable law. The "Non-Competition Period" means the period during which
the Employee is employed hereunder. In addition, (A) in the case of termination
of employment pursuant to Section 6 hereof, the "Non-Competition Period" shall
be extended from the date of such termination of employment for a period equal
to the greater of (x) the period in which any payment of compensation (except
for an employment related injury) is made to Employee pursuant to this Agreement
or (y) one year, or (B) in the case of termination of employment pursuant to
Section 5 hereof, the "Non-Competition Period" shall be extended from the date
of such termination of employment for a period of one year.
(b) The terms of this Section 7 shall apply to the Employee and any
Person controlled by the Employee, including any relative of the Employee, to
the same extent as if they were parties hereto, and the Employee shall take
whatever actions may be necessary to cause any such persons or entities to
adhere to the terms of this Section 7.
8. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS
All inventions, innovations, designs, ideas and product developments
(collectively, the "Developments"), developed or conceived by the Employee,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term and that relate to the actual or planned
business activities of any Foilmark Party and all of Employee's right, title and
interest therein, shall be the exclusive property of the applicable Foilmark
Party. The Employee hereby assigns, transfers and conveys to any applicable
Foilmark Party all of her right, title and interest in and to any and all such
Developments. As requested from time to time by the Board, the Employee shall
disclose fully, as soon as practicable and in writing, all Developments to the
Chief Executive Officer of the Company. At any time and from time to time, upon
the request of any of the Board, the Employee shall execute and deliver to the
Company any and all instruments, documents and papers, give evidence and do any
and all other acts that, in the opinion of counsel for the Company, are or may
be necessary or desirable to document such transfer or to enable any applicable
Foilmark Party to file and prosecute applications for and to acquire, maintain
and enforce any and all patents, trademark or copyright.
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<PAGE>
The applicable Foilmark Party will be responsible for the preparation of any
such instruments, documents and papers and for the prosecution of any such
proceedings and will reimburse the Employee for all reasonable expenses by him
in compliance with the provisions of this Section.
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<PAGE>
9. CONFIDENTIAL INFORMATION
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of one or more Foilmark
Parties, including writings, equipment, processes, drawings, reports, manuals,
invention records, financial information, business plans, customer lists, the
identity of or other facts relating to prospective customers, inventory lists,
arrangements with suppliers and customers, computer programs, or other material
embodying trade secrets, customer or product information or technical or
business information of certain Foilmark Parties. All such information, other
than any information that is in the public domain through no act or omission of
the Employee or which she is authorized to disclose, or that the Employee had in
her possession prior to her employment with the Company, is referred to
collectively as the "Foilmark Information." During and after the Employment Term
the Employee shall not knowingly, willfully or intentionally (i) use or exploit
in any manner the Foilmark Information for himself or any Person other than a
Foilmark Party, (ii) remove any Foilmark Information, or any reproduction
thereof, from the possession or control of any Foilmark Party or (iii) treat
Foilmark Information other than in a confidential manner.
(b) All Foilmark Information developed, created or maintained by the
Employee, alone or with others employed by the Company, and all Foilmark
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the applicable Foilmark Party. The Employee shall return
to the Company all Foilmark Information, and reproductions thereof, whether
prepared by him or others, that are in her possession immediately upon request
and in any event upon the completion of her employment by the Company.
10. REMEDIES
The Employee expressly acknowledges that the remedy at law for any
breach of Sections 7, 8 or 9 will be inadequate and that upon any breach or
threatened breach, the Company (or Foilmark Party) shall be entitled as a matter
of right to injunctive relief in any court of competent jurisdiction, in equity
or otherwise, and to enforce the specific performance of the Employer's
obligations under these provisions without the necessity of proving the actual
damage or the inadequacy of a legal remedy.
11. SURVIVAL
Notwithstanding the termination of the Employment Term pursuant to
Section 5 or 6, the obligations of the Employee under Sections 7, 8 and 9 shall
survive and remain in full force and effect and the Company shall be entitled to
relief against the Employee pursuant to the provisions of Section 10 hereof.
12. GENERAL
(a) GOVERNING LAW. The terms of this Agreement shall be governed by
the laws of the Commonwealth of Massachusetts.
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<PAGE>
(b) INTERPRETATION. Unless the context of this Agreement clearly
requires otherwise, (i) references to the plural include the singular, and to
the singular include the plural, (ii) "or" has the inclusive meaning frequently
identified with the phrase "and/or" and (iii) "including" has the inclusive
meaning frequently identified with the phrase "but not limited to." The section
and other headings contained in this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection, schedule and exhibit
references are to this Agreement unless otherwise specified. Each accounting
term used herein that is not specifically defined herein shall have the meaning
given to it under GAAP.
(c) BINDING EFFECT. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
Any Foilmark Party other than the Company is a third party beneficiary of this
Agreement and may enforce the provisions of this Agreement that pertain to such
Foilmark Party, including Sections 7, 8 and 9, to the same extent as if a party
hereto.
(d) NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed by registered or certified mail, postage prepaid,
return receipt requested, or when sent by Federal Express or other overnight
delivery services, addressed as follows (or to such other address that a party
may provide from time to time by notice to the other parties):
TO EMPLOYEE:
Ms. Carol J. Robie
5 Malcolm Hoyt Drive
Newburyport, MA 01950
TO THE COMPANY:
Foilmark, Inc.
5 Malcolm Hoyt Drive
Newburyport, MA 01950
Attention: President
(e) ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENTS; MODIFICATIONS.
This Agreement (including Exhibit A hereto) constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof. This Agreement may
not be modified or amended in any way except in writing by the parties hereto.
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<PAGE>
(f) WAIVER. No waiver of any breach of this Agreement shall be
construed to be a waiver as to succeeding breaches.
(g) SEVERABILITY. If any provision of this Agreement or application
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or rend unenforceable such provision in any other jurisdiction.
(h) COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Agreement the day and year first written above.
FOILMARK, INC.
By: /s/ Frank J. Olsen, Jr.
----------------------------
Name: Frank J. Olsen, Jr.
Title: President & Chief Executive Officer
Accepted And Agreed to:
Employee
/s/ Carol J. Robie
- ----------------------------------
Ms. Carol J. Robie
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<PAGE>
EXHIBIT A
FRINGE BENEFITS
1. TYPICAL OFFICE BENEFITS: Inclusion in the benefit plans generally given
to executive officers of the Company from time to time, life and
disability insurance, and participation in any of the Company's profit
sharing and pension plans.
2. VACATION. Each one-year period during which Employee works for the
Company under this Agreement will entitle Employee to a total of four
weeks paid vacation in such year.
3. AUTOMOBILE ALLOWANCE: Company car, insurance and maintenance, as
allowed and consistent with those given to executive officers of the
Company.
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<PAGE>
Exhibit 10.54
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of the first
day of July, 1999, by and between Foilmark, Inc., a Delaware corporation (the
"Company") and Wilhelm P. Kutsch (hereinafter, the "Employee").
RECITALS
WHEREAS, the Employee has been employed by the Company in the capacity
of Vice-President of Operations of the Company since the execution of the
Original Employment Agreement dated as of September 28, 1993 (the "1993
Employment Agreement") and has been employed by the Company since July 2, 1979,
WHEREAS, the Employee possesses considerable experience and an intimate
knowledge of the business of the Company and has played a key role in its
development, and
WHEREAS, the Employee has demonstrated unique qualifications to act in
an executive capacity for the Company and the Company expects that the
Employee's contributions will continue to be substantial and meritorious; and
WHEREAS, the Company is desirous of assuring the continued employment
of the Employee in the above stated capacity, and the Employee is desirous of
having such assurance.
WITNESSETH
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT
The Company hereby employs the Employee as a senior level executive
employee of the Company, and Employee hereby accepts such employment. During the
term of employment under this Agreement (the "Employment Term"), the Employee
shall perform such duties as are requested from time to time by the Board of
Directors of the Company and/or the Chief Executive Officer of the Company.
Employee will report to the Chief Executive Officer.
2. PERFORMANCE
During the Employment Term, the Employee shall devote his entire
business efforts to the performance of his duties thereunder.
<PAGE>
3. TERM
Unless otherwise terminated in accordance with Section 5 or 6 hereof,
the Employment Term of this Agreement shall be for an initial term of three
years commencing on the date hereof, and continuing after such initial term for
successive two-year renewal terms.
4. COMPENSATION FOR EMPLOYMENT
(a) The basic annual compensation of the Employee for his employment
services to the Company and to all of its affiliated companies during the
Employment Term shall be $192,000 (the "Salary"), which the Company shall pay to
the Employee in accordance with the normal payroll policy and in compliance with
federal and state law. The Company may adjust the Salary upward on an annual
basis, but the Salary shall not be decreased.
(b) Commencing on the date hereof (the "Bonus Starting Date") and
continuing during the Employment Term, the Company shall pay the Employee a
bonus in accordance with this paragraph 4(b). For each fiscal year during the
Employment Term, the Board of Directors, in its sole discretion, shall establish
a budget for pretax income in accordance with generally accepted accounting
principles consistently applied ("GAAP") and the Employee's bonus will vary as a
percentage of Salary in relation to the percentage achievement of that budget as
follows:
<TABLE>
<CAPTION>
PERCENTAGE OF BONUS ATTAINED PERCENTAGE OF SALARY EARNED AS BONUS
---------------------------- ------------------------------------
<S> <C>
less than 80% 0%
80% 10%
90% 20%
100% 30%
110% 40%
120% and above 50%
</TABLE>
For a percentage of budget achievement between the benchmarks, the percentage of
the Salary shall be linearly interpolated, provided that no bonus shall be paid
for achievement less than 80% of budget and the maximum bonus shall be 50% of
Salary in any event. In the case of a partial fiscal year, the Company shall
adjust the bonus to correspond to the Company's budget and the Salary for the
portion of the applicable fiscal year that shall be included in the Employment
term. Notwithstanding the foregoing, the Employee's initial bonus period (the
"Initial Bonus Period") shall be the period starting with the Bonus Starting
Date and ending on fiscal year ended June 30, 2000, and the Company shall use
its budget for that period (a copy of which the Company has provided to the
Employee) to determine the Employee's eligibility for a bonus, and then apply
the applicable bonus percentage to that portion of the Employee's annual Salary
that relates to the Initial Bonus Period. The Employee's second bonus period
shall be the period beginning on July 1, 2000 and ending with the last day of
the Company's fiscal year, and the Company shall
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<PAGE>
prepare a budget for that period and determine the Employee's eligibility for a
bonus in the manner described for the Initial Bonus Period. The bonus program
shall continue with each extension of the Employment Term as defined in
paragraph 3 hereof, with the bonus periods corresponding to the Company's fiscal
year. Bonuses shall continue to be calculated as described in this paragraph.
(c) During the Employment Term, the Company shall also provide the
Employee with those fringe benefits specified on Exhibit A (the "Fringe
Benefits"). The Company shall also reimburse the Employee for any reasonable
business expenses incurred on the Company's behalf in connection with the
performance of his services during the Employment Term.
(d) Employee with continue to be eligible for participation in
Foilmark's Qualified Stock Option Plan (the "Foilmark Plan") to purchase shares
of the Company's common stock, without par value, at an exercise price pursuant
to and in accordance with such Foilmark Plan.
5. TERMINATION WITHOUT COMPENSATION
(a) Partial or Total Disability. If the Employee is unable to perform
his duties and responsibilities hereunder to the full extent required by reason
of non-employment related illness, injury or incapacity for six months (during
which time he shall continue to be compensated hereunder), the Company may
terminate the Employment term, and the Company shall not have any further
liability or obligation to the Employee hereunder except for any unpaid Salary,
any unpaid bonus earned by Employee pursuant to Section 4(b) hereof for the
bonus period in which termination of employment occurs, adjusted pro rata based
upon the portion of such bonus period in which the Employee was actually
employed by the Company hereunder and any Fringe Benefits accrued to the date of
termination, provided, however, that Employee reserves any rights that he may
have against the Company with respect to any claims for damages and/or benefits
under any Workers' Compensation Act, or otherwise, arising out of injuries,
illness or incapacity incurred as a result of his employment with the Company
(an "Employment Injury"). In the event of any dispute under this Section 5(a),
the Employee shall submit to a physical examination by a licensed physician
mutually satisfactory to the Company and the Employee, the cost of such
examination to be paid by the Company, and the determination of such physician
shall be determinative. If, after termination due to disability as provided
herein, the Employee obtains, at his sole expense, medical certification from a
licensed physician reasonably satisfactory to the Company that such disability
has ended, the Company shall offer to employ the Employee pursuant to the terms
of this Agreement for the remainder of the initial term or any renewal term in
effect at the time of termination, except that the Company shall not be required
to re-employ the Employee at the same officer position if the Company shall have
elected another person to such position during the period of the Employee's
disability and such other person continues in such position at the time of the
Employee's return to employment.
(b) DEATH. If the Employee dies, this Employment Agreement (except for
the provisions of Sections 6, 10 and 11 hereof) shall terminate, and thereafter
the Company shall not have any further liability or obligation to the Employee,
his executors, administrators, heirs,
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<PAGE>
assigns or any other person claiming under or through him except for unpaid
Salary, any unpaid bonus earned by Employee pursuant to Section 4(b) hereof for
the bonus period in which Employee's death occurs, adjusted pro rata based upon
the portion of such bonus period in which the Employee was actually employed by
the Company hereunder and any Fringe Benefits, accrued to the date of his death.
(c) CAUSE. The Company may terminate the Employee's employment for
"cause" by giving the Employee 60 days' written notice of the termination date
and thereafter the Company shall not have any further liability or obligation to
the Employee. For the purposes of this Agreement, "cause" shall mean the failure
of the Employee to observe or perform (other than by reason of illness, injury,
or incapacity) any of the material terms or provisions of this Agreement,
dishonesty, willful misconduct, material neglect of the Company's business,
conviction of a felony or other crime involving moral turpitude,
misappropriation of funds or habitual insobriety.
6. TERMINATION WITH COMPENSATION
(a) NON-RENEWAL OF TERM. The Employment Term may be terminated by
either party hereto as of the end of the initial term or any renewal term then
in effect by giving written notice of the intention to terminate the Employment
Term at least 90 days prior to the proposed termination date. If the Company
terminates the Employment Term under such circumstances, the Company shall
provide the Employee with the Termination Compensation specified in Section
6(c).
(b) WITHOUT CAUSE. During the initial five year term, the Company
shall have the right to terminate the Employment Term without cause at any time
by giving the Employee 60 days' written notice of the termination date. Under
such circumstances, the Company shall provide the Employee with the Termination
Compensation specified in Section 6(c).
(c) TERMINATION COMPENSATION. The "Termination Compensation" shall
consist of payment of the Employee's Salary under Section 4(a) hereof, at the
level in effect at the date of termination, for the longer of (A) any remaining
part of the initial three year term of the Employment Term or (B) 12 months. The
Employee shall not be entitled to any Termination Compensation under this
Section 6 unless the Employee executes and delivers to the Company after a
notice of termination a release in a form satisfactory to the Company in its
sole discretion by which the Employee releases the Company and its affiliates,
and the Company so releases the Employee, from any obligations and liabilities
of any type whatsoever, except for the Company's obligation to provide the
Salary specified in this Section 6, any unpaid bonus earned by Employee pursuant
to Section 4(b) hereof for the bonus period in which termination of employment
occurs, adjusted pro rata based upon the portion of such bonus period in which
the Employee was actually employed by the Company hereunder and any liability
for any Employment Injury. The parties hereto acknowledge that the Salary to be
provided under this Section 6 is to be provided in consideration for the
above-specified release.
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<PAGE>
(d) EXCLUSIVITY. Upon termination by the Company under Section 6(a) or
Section 6(b), the Company shall not have any obligation to the Employee, his
executors, administrators, heirs or assigns or any other person claiming under
or through him other than to provide the Termination Compensation under the
terms and conditions of Section 6(c) and any other obligation that the Company
may have for any Employment Injury.
7. AGREEMENT NOT TO COMPETE
(a) During the Non-Competition Period (defined below), the Employee
shall not directly or indirectly, in any capacity, without the express written
consent of the Chief Executive Officer and the Board of Directors of the
Company, render his services, engage in any business activity or have a
financial interest, in any business (other than as the holder of not more than
one percent of the total outstanding stock of any publicly-held company) that is
competitive with any of those business activities in which the Company, any
subsidiary of any of the Company or any person, partnership, association,
corporation, or other entity controlled by the Company (collectively, the
"Foilmark Parties") shall have been engaged during his employment by the
Company, nor shall the Employee assist any person or entity that is engaged in
such business, including by making Foilmark Information (defined below)
available to any such person or entity. In addition, the Employee shall not
directly or indirectly solicit or otherwise encourage any of the employees of
any Foilmark Party to terminate his employment with the applicable Foilmark
Party. If a court determines that the foregoing restrictions are too broad or
otherwise unreasonable under applicable law, including with respect to time and
space, the court is hereby requested and authorized by the parties hereto to
review the foregoing restrictions to include the maximum restrictions allowable
under applicable law. The "Non-Competition Period" means the period during which
the Employee is employed hereunder. In addition, (A) in the case of termination
of employment pursuant to Section 6 hereof, the "Non-Competition Period" shall
be extended from the date of such termination of employment for a period equal
to the greater of (x) the period in which any payment of compensation (except
for an employment related injury) is made to Employee pursuant to this Agreement
or (y) one year, or (B) in the case of termination of employment pursuant to
Section 5 hereof, the "Non-Competition Period" shall be extended from the date
of such termination of employment for a period of one year.
(b) The terms of this Section 7 shall apply to the Employee and any
Person controlled by the Employee, including any relative of the Employee, to
the same extent as if they were parties hereto, and the Employee shall take
whatever actions may be necessary to cause any such persons or entities to
adhere to the terms of this Section 7.
8. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS
All inventions, innovations, designs, ideas and product developments
(collectively, the "Developments"), developed or conceived by the Employee,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term and that relate to the actual or planned
business activities of any Foilmark Party and all of Employee's right, title and
interest therein, shall be the exclusive property of the applicable Foilmark
Party.
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<PAGE>
The Employee hereby assigns, transfers and conveys to any applicable Foilmark
Party all of his right, title and interest in and to any and all such
Developments. As requested from time to time by the Board, the Employee shall
disclose fully, as soon as practicable and in writing, all Developments to the
Chief Executive Officer of the Company. At any time and from time to time, upon
the request of any of the Board, the Employee shall execute and deliver to the
Company any and all instruments, documents and papers, give evidence and do any
and all other acts that, in the opinion of counsel for the Company, are or may
be necessary or desirable to document such transfer or to enable any applicable
Foilmark Party to file and prosecute applications for and to acquire, maintain
and enforce any and all patents, trademark or copyright. The applicable Foilmark
Party will be responsible for the preparation of any such instruments, documents
and papers and for the prosecution of any such proceedings and will reimburse
the Employee for all reasonable expenses by him in compliance with the
provisions of this Section.
9. CONFIDENTIAL INFORMATION
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of one or more Foilmark
Parties, including writings, equipment, processes, drawings, reports, manuals,
invention records, financial information, business plans, customer lists, the
identity of or other facts relating to prospective customers, inventory lists,
arrangements with suppliers and customers, computer programs, or other material
embodying trade secrets, customer or product information or technical or
business information of certain Foilmark Parties. All such information, other
than any information that is in the public domain through no act or omission of
the Employee or which he is authorized to disclose, or that the Employee had in
his possession prior to his employment with the Company, is referred to
collectively as the "Foilmark Information." During and after the Employment Term
the Employee shall not knowingly, willfully or intentionally (i) use or exploit
in any manner the Foilmark Information for himself or any Person other than a
Foilmark Party, (ii) remove any Foilmark Information, or any reproduction
thereof, from the possession or control of any Foilmark Party or (iii) treat
Foilmark Information other than in a confidential manner.
(b) All Foilmark Information developed, created or maintained by the
Employee, alone or with others employed by the Company, and all Foilmark
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the applicable Foilmark Party. The Employee shall return
to the Company all Foilmark Information, and reproductions thereof, whether
prepared by him or others, that are in his possession immediately upon request
and in any event upon the completion of his employment by the Company.
10. REMEDIES
The Employee expressly acknowledges that the remedy at law for any
breach of Sections 7, 8 or 9 will be inadequate and that upon any breach or
threatened breach, the Company (or Foilmark Party) shall be entitled as a matter
of right to injunctive relief in any court of competent jurisdiction, in equity
or otherwise, and to enforce the specific performance of the
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<PAGE>
Employer's obligations under these provisions without the necessity of proving
the actual damage or the inadequacy of a legal remedy.
11. SURVIVAL
Notwithstanding the termination of the Employment Term pursuant to
Section 5 or 6, the obligations of the Employee under Sections 7, 8 and 9 shall
survive and remain in full force and effect and the Company shall be entitled to
relief against the Employee pursuant to the provisions of Section 10 hereof.
12. GENERAL
(a) GOVERNING LAW. The terms of this Agreement shall be governed by
the laws of the Commonwealth of Massachusetts.
(b) INTERPRETATION. Unless the context of this Agreement clearly
requires otherwise, (i) references to the plural include the singular, and to
the singular include the plural, (ii) "or" has the inclusive meaning frequently
identified with the phrase "and/or" and (iii) "including" has the inclusive
meaning frequently identified with the phrase "but not limited to." The section
and other headings contained in this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection, schedule and exhibit
references are to this Agreement unless otherwise specified. Each accounting
term used herein that is not specifically defined herein shall have the meaning
given to it under GAAP.
(c) BINDING EFFECT. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
Any Foilmark Party other than the Company is a third party beneficiary of this
Agreement and may enforce the provisions of this Agreement that pertain to such
Foilmark Party, including Sections 7, 8 and 9, to the same extent as if a party
hereto.
(d) NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed by registered or certified mail, postage prepaid,
return receipt requested, or when sent by Federal Express or other overnight
delivery services, addressed as follows (or to such other address that a party
may provide from time to time by notice to the other parties):
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<PAGE>
TO EMPLOYEE:
Mr. Wilhelm P. Kutsch
5 Malcolm Hoyt Drive
Newburyport, MA 01950
TO THE COMPANY:
Foilmark, Inc.
5 Malcolm Hoyt Drive
Newburyport, MA 01950
Attention: President
(e) ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENTS; MODIFICATIONS.
This Agreement (including Exhibit A hereto) constitutes the entire agreement of
the parties hereto with respect to the subject matter hereof. This Agreement may
not be modified or amended in any way except in writing by the parties hereto.
(f) WAIVER. No waiver of any breach of this Agreement shall be
construed to be a waiver as to succeeding breaches.
(g) SEVERABILITY. If any provision of this Agreement or application
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or rend unenforceable such provision in any other jurisdiction.
(h) COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Agreement the day and year first written above.
FOILMARK, INC.
By: /s/ Frank J. Olsen, Jr.
---------------------------------
Name: Frank J. Olsen, Jr.
Title: President & Chief Executive Officer
Accepted And Agreed to:
Employee
/s/ Wilhelm Kutsch
-8-
<PAGE>
- -----------------------------------
Wilhelm P. Kutsch
EXHIBIT A
FRINGE BENEFITS
1. TYPICAL OFFICE BENEFITS: Inclusion in the benefit plans generally given
to executive officers of the Company from time to time, life and
disability insurance, and participation in any of the Company's profit
sharing and pension plans.
2. VACATION. Each one-year period during which Employee works for the
Company under this Agreement will entitle Employee to a total of four
weeks paid vacation in such year.
3. AUTOMOBILE ALLOWANCE: Company car, insurance and maintenance, as
allowed and consistent with those given to executive officers of the
Company.
-9-
<PAGE>
Exhibit 10.55
EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is made as of the first
day of July, 1999, by and between Foilmark, Inc., a Delaware corporation (the
"Company") and Philip Leibel (hereinafter, the "Employee").
RECITALS
WHEREAS, the Employee has been employed by the Company in the capacity
of Treasurer and Assistant Secretary of the Company since the execution of the
Original Employment Agreement dated as of September 28, 1993 (the "1993
Employment Agreement") and has been employed by the Company since April 26,
1976.,
WHEREAS, the Employee possesses considerable experience and an intimate
knowledge of the business of the Company and has played a key role in its
development, and
WHEREAS, the Employee has demonstrated unique qualifications to act in
an executive capacity for the Company and the Company expects that the
Employee's contributions will continue to be substantial and meritorious; and
WHEREAS, the Company is desirous of assuring the continued employment
of the Employee in the above stated capacity, and the Employee is desirous of
having such assurance.
WITNESSETH
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the parties hereto, each intending to be legally bound hereby,
agree as follows:
1. EMPLOYMENT
The Company hereby employs the Employee as Chief Financial Officer and
Assistant Secretary of the Company, and Employee hereby accepts such employment.
During the term of employment under this Agreement (the "Employment Term"), the
Employee shall perform such duties as are requested from time to time by the
Board of Directors of the Company and/or the Chief Executive Officer of the
Company. Employee will report to the Chief Executive Officer.
2. PERFORMANCE
During the Employment Term, the Employee shall devote his entire
business efforts to the performance of his duties thereunder.
<PAGE>
3. TERM
Unless otherwise terminated in accordance with Section 5 or 6 hereof,
the Employment Term of this Agreement shall be for an initial term of two years
commencing on the date hereof, and continuing after such initial term for
successive one-year renewal terms.
4. COMPENSATION FOR EMPLOYMENT
(a) The basic annual compensation of the Employee for his employment
services to the Company and to all of its affiliated companies during the
Employment Term shall be $167,000 (the "Salary"), which the Company shall pay to
the Employee in accordance with the normal payroll policy and in compliance with
federal and state law. The Company may adjust the Salary upward on an annual
basis, but the Salary shall not be decreased.
(b) Commencing on the date hereof (the "Bonus Starting Date") and
continuing during the Employment Term, the Company shall pay the Employee a
bonus in accordance with this paragraph 4(b). For each fiscal year during the
Employment Term, the Board of Directors, in its sole discretion, shall establish
a budget for pretax income in accordance with generally accepted accounting
principles consistently applied ("GAAP") and the Employee's bonus will vary as a
percentage of Salary in relation to the percentage achievement of that budget as
follows:
<TABLE>
<CAPTION>
PERCENTAGE OF BONUS ATTAINED PERCENTAGE OF SALARY EARNED AS BONUS
---------------------------- ------------------------------------
<S> <C>
less than 80% 0%
80% 10%
90% 20%
100% 30%
110% 40%
120% and above 50%
</TABLE>
For a percentage of budget achievement between the benchmarks, the percentage of
the Salary shall be linearly interpolated, provided that no bonus shall be paid
for achievement less than 80% of budget and the maximum bonus shall be 50% of
Salary in any event. In the case of a partial fiscal year, the Company shall
adjust the bonus to correspond to the Company's budget and the Salary for the
portion of the applicable fiscal year that shall be included in the Employment
term. Notwithstanding the foregoing, the Employee's initial bonus period (the
"Initial Bonus Period") shall be the period starting with the Bonus Starting
Date and ending on fiscal year ended June 30, 2000, and the Company shall use
its budget for that period (a copy of which the Company has provided to the
Employee) to determine the Employee's eligibility for a bonus, and then apply
the applicable bonus percentage to that portion of the Employee's annual Salary
that relates to the Initial Bonus Period. The Employee's second bonus period
shall be the period beginning on July 1, 2000 and ending with the last day of
the Company's fiscal year, and the Company shall prepare a budget for that
period and determine the Employee's eligibility for a bonus in the manner
described for the Initial Bonus Period. The bonus program shall continue with
each
-2-
<PAGE>
extension of the Employment Term as defined in paragraph 3 hereof, with the
bonus periods corresponding to the Company's fiscal year. Bonuses shall continue
to be calculated as described in this paragraph.
(c) During the Employment Term, the Company shall also provide the
Employee with those fringe benefits specified on Exhibit A (the "Fringe
Benefits"). The Company shall also reimburse the Employee for any reasonable
business expenses incurred on the Company's behalf in connection with the
performance of his services during the Employment Term.
(d) Employee with continue to be eligible for participation in
Foilmark's Qualified Stock Option Plan (the "Foilmark Plan") to purchase shares
of the Company's common stock, without par value, at an exercise price pursuant
to and in accordance with such Foilmark Plan.
5. TERMINATION WITHOUT COMPENSATION
(a) Partial or Total Disability. If the Employee is unable to perform
his duties and responsibilities hereunder to the full extent required by reason
of non-employment related illness, injury or incapacity for six months (during
which time he shall continue to be compensated hereunder), the Company may
terminate the Employment term, and the Company shall not have any further
liability or obligation to the Employee hereunder except for any unpaid Salary,
any unpaid bonus earned by Employee pursuant to Section 4(b) hereof for the
bonus period in which termination of employment occurs, adjusted pro rata based
upon the portion of such bonus period in which the Employee was actually
employed by the Company hereunder and any Fringe Benefits accrued to the date of
termination, provided, however, that Employee reserves any rights that he may
have against the Company with respect to any claims for damages and/or benefits
under any Workers' Compensation Act, or otherwise, arising out of injuries,
illness or incapacity incurred as a result of his employment with the Company
(an "Employment Injury"). In the event of any dispute under this Section 5(a),
the Employee shall submit to a physical examination by a licensed physician
mutually satisfactory to the Company and the Employee, the cost of such
examination to be paid by the Company, and the determination of such physician
shall be determinative. If, after termination due to disability as provided
herein, the Employee obtains, at his sole expense, medical certification from a
licensed physician reasonably satisfactory to the Company that such disability
has ended, the Company shall offer to employ the Employee pursuant to the terms
of this Agreement for the remainder of the initial term or any renewal term in
effect at the time of termination, except that the Company shall not be required
to re-employ the Employee at the same officer position if the Company shall have
elected another person to such position during the period of the Employee's
disability and such other person continues in such position at the time of the
Employee's return to employment.
(b) DEATH. If the Employee dies, this Employment Agreement (except for
the provisions of Sections 6, 10 and 11 hereof) shall terminate, and thereafter
the Company shall not have any further liability or obligation to the Employee,
his executors, administrators, heirs, assigns or any other person claiming under
or through him except for unpaid Salary, any unpaid bonus earned by Employee
pursuant to Section 4(b) hereof for the bonus period in which
-3-
<PAGE>
Employee's death occurs, adjusted pro rata based upon the portion of such bonus
period in which the Employee was actually employed by the Company hereunder and
any Fringe Benefits, accrued to the date of his death.
(c) CAUSE. The Company may terminate the Employee's employment for
"cause" by giving the Employee 60 days' written notice of the termination date
and thereafter the Company shall not have any further liability or obligation to
the Employee. For the purposes of this Agreement, "cause" shall mean the failure
of the Employee to observe or perform (other than by reason of illness, injury,
or incapacity) any of the material terms or provisions of this Agreement,
dishonesty, willful misconduct, material neglect of the Company's business,
conviction of a felony or other crime involving moral turpitude,
misappropriation of funds or habitual insobriety.
6. TERMINATION WITH COMPENSATION
(a) NON-RENEWAL OF TERM. The Employment Term may be terminated by
either party hereto as of the end of the initial term or any renewal term then
in effect by giving written notice of the intention to terminate the Employment
Term at least 90 days prior to the proposed termination date. If the Company
terminates the Employment Term under such circumstances, the Company shall
provide the Employee with the Termination Compensation specified in Section
6(c).
(b) WITHOUT CAUSE. During the initial two-year term, the Company shall
have the right to terminate the Employment Term without cause at any time by
giving the Employee 60 days' written notice of the termination date. Under such
circumstances, the Company shall provide the Employee with the Termination
Compensation specified in Section 6(c).
(c) TERMINATION COMPENSATION. The "Termination Compensation" shall
consist of payment of the Employee's Salary under Section 4(a) hereof, at the
level in effect at the date of termination, for the longer of (A) any remaining
part of the initial two year term of the Employment Term or (B) 12 months. The
Employee shall not be entitled to any Termination Compensation under this
Section 6 unless the Employee executes and delivers to the Company after a
notice of termination a release in a form satisfactory to the Company in its
sole discretion by which the Employee releases the Company and its affiliates,
and the Company so releases the Employee, from any obligations and liabilities
of any type whatsoever, except for the Company's obligation to provide the
Salary specified in this Section 6, any unpaid bonus earned by Employee pursuant
to Section 4(b) hereof for the bonus period in which termination of employment
occurs, adjusted pro rata based upon the portion of such bonus period in which
the Employee was actually employed by the Company hereunder and any liability
for any Employment Injury. The parties hereto acknowledge that the Salary to be
provided under this Section 6 is to be provided in consideration for the
above-specified release.
(d) EXCLUSIVITY. Upon termination by the Company under Section 6(a) or
Section 6(b), the Company shall not have any obligation to the Employee, his
executors, administrators, heirs or assigns or any other person claiming under
or through him other than to provide the Termination Compensation under the
terms and conditions of Section 6(c) and any other obligation that the Company
may have for any Employment Injury.
-4-
<PAGE>
7. AGREEMENT NOT TO COMPETE
(a) During the Non-Competition Period (defined below), the Employee
shall not, directly or indirectly, in any capacity, without the express written
consent of the Chief Executive Officer and the Board of Directors of the
Company, render his services, engage in any business activity or have a
financial interest, in any business (other than as the holder of not more than
one percent of the total outstanding stock of any publicly-held company) that is
competitive with any of those business activities in which the Company, any
subsidiary of any of the Company or any person, partnership, association,
corporation, or other entity controlled by the Company (collectively, the
"Foilmark Parties") shall have been engaged during his employment by the
Company, nor shall the Employee assist any person or entity that is engaged in
such business, including by making Foilmark Information (defined below)
available to any such person or entity. In addition, the Employee shall not
directly or indirectly solicit or otherwise encourage any of the employees of
any Foilmark Party to terminate his employment with the applicable Foilmark
Party. If a court determines that the foregoing restrictions are too broad or
otherwise unreasonable under applicable law, including with respect to time and
space, the court is hereby requested and authorized by the parties hereto to
review the foregoing restrictions to include the maximum restrictions allowable
under applicable law. The "Non-Competition Period" means the period during which
the Employee is employed hereunder. In addition, (A) in the case of termination
of employment pursuant to Section 6 hereof, the "Non-Competition Period" shall
be extended from the date of such termination of employment for a period equal
to the greater of (x) the period in which any payment of compensation (except
for an employment related injury) is made to Employee pursuant to this Agreement
or (y) one year, or (B) in the case of termination of employment pursuant to
Section 5 hereof, the "Non-Competition Period" shall be extended from the date
of such termination of employment for a period of one year.
(b) The terms of this Section 7 shall apply to the Employee and any
Person controlled by the Employee, including any relative of the Employee, to
the same extent as if they were parties hereto, and the Employee shall take
whatever actions may be necessary to cause any such persons or entities to
adhere to the terms of this Section 7.
8. INVENTIONS, DESIGNS AND PRODUCT DEVELOPMENTS
All inventions, innovations, designs, ideas and product developments
(collectively, the "Developments"), developed or conceived by the Employee,
solely or jointly with others, whether or not patentable or copyrightable, at
any time during the Employment Term and that relate to the actual or planned
business activities of any Foilmark Party and all of Employee's right, title and
interest therein, shall be the exclusive property of the applicable Foilmark
Party. The Employee hereby assigns, transfers and conveys to any applicable
Foilmark Party all of his right, title and interest in and to any and all such
Developments. As requested from time to time by the Board, the Employee shall
disclose fully, as soon as practicable and in writing, all Developments to the
Chief Executive Officer of the Company. At any time and from time to time, upon
the request of any of the Board, the Employee shall execute and deliver to the
Company any and all instruments, documents and papers, give evidence and do any
and all other acts that, in the opinion of counsel for the Company, are or may
be necessary or desirable to
<PAGE>
document such transfer or to enable any applicable Foilmark Party to file and
prosecute applications for and to acquire, maintain and enforce any and all
patents, trademark or copyright. The applicable Foilmark Party will be
responsible for the preparation of any such instruments, documents and papers
and for the prosecution of any such proceedings and will reimburse the Employee
for all reasonable expenses by him in compliance with the provisions of this
Section.
9. CONFIDENTIAL INFORMATION
(a) The Employee has had and will have possession of or access to
confidential information relating to the business of one or more Foilmark
Parties, including writings, equipment, processes, drawings, reports, manuals,
invention records, financial information, business plans, customer lists, the
identity of or other facts relating to prospective customers, inventory lists,
arrangements with suppliers and customers, computer programs, or other material
embodying trade secrets, customer or product information or technical or
business information of certain Foilmark Parties. All such information, other
than any information that is in the public domain through no act or omission of
the Employee or which he is authorized to disclose, or that the Employee had in
his possession prior to his employment with the Company, is referred to
collectively as the "Foilmark Information." During and after the Employment Term
the Employee shall not knowingly, willfully or intentionally (i) use or exploit
in any manner the Foilmark Information for himself or any Person other than a
Foilmark Party, (ii) remove any Foilmark Information, or any reproduction
thereof, from the possession or control of any Foilmark Party or (iii) treat
Foilmark Information other than in a confidential manner.
(b) All Foilmark Information developed, created or maintained by the
Employee, alone or with others employed by the Company, and all Foilmark
Information maintained by the Employee thereafter, shall remain at all times the
exclusive property of the applicable Foilmark Party. The Employee shall return
to the Company all Foilmark Information, and reproductions thereof, whether
prepared by him or others, that are in his possession immediately upon request
and in any event upon the completion of his employment by the Company.
10. REMEDIES
The Employee expressly acknowledges that the remedy at law for any
breach of Sections 7, 8 or 9 will be inadequate and that upon any breach or
threatened breach, the Company (or Foilmark Party) shall be entitled as a matter
of right to injunctive relief in any court of competent jurisdiction, in equity
or otherwise, and to enforce the specific performance of the Employer's
obligations under these provisions without the necessity of proving the actual
damage or the inadequacy of a legal remedy.
11. SURVIVAL
Notwithstanding the termination of the Employment Term pursuant to
Section 5 or 6, the obligations of the Employee under Sections 7, 8 and 9 shall
survive and remain in full force and effect and the Company shall be entitled to
relief against the Employee pursuant to the provisions of Section 10 hereof.
-6-
<PAGE>
12. GENERAL
(a) GOVERNING LAW. The terms of this Agreement shall be governed by
the laws of the Commonwealth of Massachusetts.
(b) INTERPRETATION. Unless the context of this Agreement clearly
requires otherwise, (i) references to the plural include the singular, and to
the singular include the plural, (ii) "or" has the inclusive meaning frequently
identified with the phrase "and/or" and (iii) "including" has the inclusive
meaning frequently identified with the phrase "but not limited to." The section
and other headings contained in this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection, schedule and exhibit
references are to this Agreement unless otherwise specified. Each accounting
term used herein that is not specifically defined herein shall have the meaning
given to it under GAAP.
(c) BINDING EFFECT. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit and be enforceable by the
respective heirs, representatives, successors (including any successor as a
result of a merger or similar reorganization) and assigns of the parties hereto,
except that the duties and responsibilities of the Employee hereunder are of a
personal nature and shall not be assignable in whole or in part by the Employee.
Any Foilmark Party other than the Company is a third party beneficiary of this
Agreement and may enforce the provisions of this Agreement that pertain to such
Foilmark Party, including Sections 7, 8 and 9, to the same extent as if a party
hereto.
(d) NOTICES. All notices required to be given under this Agreement
shall be in writing and shall be deemed to have been given when personally
delivered or when mailed by registered or certified mail, postage prepaid,
return receipt requested, or when sent by Federal Express or other overnight
delivery services, addressed as follows (or to such other address that a party
may provide from time to time by notice to the other parties):
TO EMPLOYEE:
Mr. Philip Leibel
4 Mulliken Way
Newburyport, MA 01950
TO THE COMPANY:
Foilmark, Inc.
5 Malcolm Hoyt Drive
Newburyport, MA 01950
Attention: President
(e) ENTIRE AGREEMENT; TERMINATION OF PRIOR AGREEMENTS; MODIFICATIONS.
This Agreement (including Exhibit A hereto) constitutes the entire agreement of
the parties hereto
-7-
<PAGE>
with respect to the subject matter hereof. This Agreement may not be modified or
amended in any way except in writing by the parties hereto.
(f) WAIVER. No waiver of any breach of this Agreement shall be
construed to be a waiver as to succeeding breaches.
(g) SEVERABILITY. If any provision of this Agreement or application
thereof to anyone under any circumstances is adjudicated to be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect any other provisions or applications of this Agreement which can be given
effect without the invalid or unenforceable provision or application and shall
not invalidate or rend unenforceable such provision in any other jurisdiction.
(h) COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have hereunto duly executed this Agreement the day and year first written above.
FOILMARK, INC.
By: /s/ Frank J. Olsen, Jr.
------------------------------
Name: Frank J. Olsen, Jr.
Title: President & Chief Executive Officer
Accepted And Agreed to:
Employee
/s/ Philip Leibel
- -----------------------------------
Philip Leibel
-8-
<PAGE>
EXHIBIT A
FRINGE BENEFITS
1. TYPICAL OFFICE BENEFITS: Inclusion in the benefit plans generally given
to executive officers of the Company from time to time, life and
disability insurance, and participation in any of the Company's profit
sharing and pension plans.
2. VACATION. Each one-year period during which Employee works for the
Company under this Agreement will entitle Employee to a total of four
weeks paid vacation in such year.
3. AUTOMOBILE ALLOWANCE: Company car, insurance and maintenance, as
allowed and consistent with those given to executive officers of the
Company.
-9-
<PAGE>
EXHIBIT 10.56
FIRST AMENDMENT TO THE
FOILMARK, INC.
AMENDED AND RESTATED
1995 STOCK INCENTIVE COMPENSATION PLAN
WHEREAS, Foilmark, Inc. (the "Company") adopted the 1995 Stock Incentive
Compensation Plan (the "Plan") for its employees, officers and directors; and
WHERAS, the Board of Directors of the Company has reserved the right to
amend the Plan pursuant to Section 12 of the Plan; and
WHEREAS, the Company amended and restated the Plan in 1998; and
WHEREAS, the Company desires to amend the Plan again to increase the number
of shares available for distribution under the Plan;
NOW THEREFORE, the Plan is hereby amended, subject to approval by the
Company's shareholders, as follows:
The first clause in Section 2 of the Plan is hereby amended to read as
follows:
"The maximum aggregate number of shares of Stock reserved and available for
distribution under the Plan shall be 600,000 shares of Stock:"
IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed this 19(th) day of August, 1999.
FOILMARK, INC.
By: /s/ Philip Leibel
----------------------------
Title: Vice President--Finance &
Chief Financial Officer
<PAGE>
EXHIBIT 10.57
FIRST AMENDMENT TO THE
FOILMARK, INC.
NON-EMPLOYEE DIRECTORS' STOCK PLAN
WHEREAS, Foilmark, Inc. (the "Company") has adopted the Foilmark, Inc.
Non-Employee Directors' Stock Plan (the "Plan") for its non-employee directors;
WHEREAS, the Board of Directors of the Company has reserved the right to
amend the Plan pursuant to Section 7 of the Plan;
WHEREAS, the Company desires to amend the Plan to increase the number of
shares of stock which may be issued under the Plan;
NOW THEREFORE, the Plan is hereby amended, subject to approval by the
Company's shareholders, as follows:
Section 5 of the Plan is amended by removing clause (b) and replacing it
with the following:
"(b) The aggregate number of Common Shares of the Company which may be
issued under the Plan shall not exceed 150,000 shares; subject, however, to the
adjustment provided in Paragraph 6 in the event of stock splits, stock
dividends, exchanges of shares or the like occurring after the effective date of
this Plan."
IN WITNESS WHEREOF, the Company has caused this First Amendment to be
executed this 19(th) day of August, 1999.
FOILMARK, INC.
By: /s/ Philip Leibel
-----------------------------
Title: Vice President--Finance &
Chief Financial Officer
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-END> JUN-30-1999
<CASH> 1,326,231
<SECURITIES> 0
<RECEIVABLES> 11,491,909
<ALLOWANCES> 744,000
<INVENTORY> 13,039,186
<CURRENT-ASSETS> 28,060,229
<PP&E> 30,482,237
<DEPRECIATION> 16,317,492
<TOTAL-ASSETS> 47,591,853
<CURRENT-LIABILITIES> 10,034,988
<BONDS> 0
0
0
<COMMON> 79,037
<OTHER-SE> 23,179,315
<TOTAL-LIABILITY-AND-EQUITY> 47,591,853
<SALES> 23,149,842
<TOTAL-REVENUES> 23,371,616
<CGS> 16,272,482
<TOTAL-COSTS> 21,973,356
<OTHER-EXPENSES> 826,228
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 343,550
<INCOME-PRETAX> 228,242
<INCOME-TAX> 134,579
<INCOME-CONTINUING> 93,903
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 93,903
<EPS-BASIC> 0.02
<EPS-DILUTED> 0.02
</TABLE>
