THIS LOAN
AGREEMENT (the “Agreement”) is made this 14
th day of November, 2006, by and among Professional
Veterinary Products, Ltd., a Nebraska corporation
(“PVPL”), ProConn, LLC, a Nebraska limited liability
company (“ProConn”), Exact Logistics, LLC, a Nebraska
limited liability company (“Exact”, together with PVPL
and ProConn, collectively and individually herein referred to as
“Borrower”) and First National Bank of Omaha, a
national banking association (“Lender”).
WHEREAS, Borrower
has requested that Lender loan up to forty-four million six hundred
sixty-six thousand dollars ($44,666,000) to the Borrower via a
forty million dollar ($40,000,000) revolving credit facility and a
four million six hundred sixty-six thousand dollar ($4,666,000)
term loan facility, the proceeds of which will be used to refinance
existing indebtedness of the Borrower and to provide the Borrower
with working capital support;
WHEREAS, each
Borrower will receive direct and indirect financial benefits from
the loans;
WHEREAS, the loans
will generally be secured by (i) Borrower’s warehouse /
office facility located at 10077 South 134 th Street, Omaha, Nebraska and
(ii) Borrower’s other assets including, without
limitation, accounts receivable, inventory, machinery and
equipment, general intangibles and accounts; and
WHEREAS, Lender is
willing to make the loans on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE,
for and in consideration of Lender making loans up to $45,000,000
to the Borrower, the premises set forth above, which are
incorporated herein by this reference and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, it is agreed as follows:
Principles of Interpretation and
Definitions
Section 1.1 General Principles. For the purpose of this
Agreement, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the terms
defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
and
(b) all
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles and shall be consistent with those applied in
preparation of the financial statements referred to in
Section 4.5.
Section 1.2 Definitions. The following specific
definitions shall apply to this Agreement:
(a) “Account
Debtor” means the person who is obligated on a
Receivable.
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(b) “Advance”
means a monetary advance made by Lender to any Person pursuant to
the provisions of any Loan.
(c) “Affiliate”
means any Person (1) that directly or indirectly, through one
or more intermediaries, controls, is controlled by or is under
common control with Borrower including, without limitation, the
officers and directors of each of them, (2) that directly or
beneficially owns or holds ten percent (10%) or more of any equity
interest in Borrower or (3) ten percent (10%) or more of whose
voting stock (or in the case of a Person which is not a
corporation, ten percent (10%) or more of any equity interest) is
owned directly or beneficially or held by Borrower including,
without limitation, American Animal Hospital Association Services
Company (d/b/a MarketLink). As used herein, the term
“control” shall mean possession, directly or
indirectly, of the power to direct the management or policies of a
Person, whether through ownership of securities or
otherwise.
(d) “Borrowing
Base” means an amount equal to the sum of:
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(1)
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80%
of the Eligible Accounts Receivable; plus
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(2)
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50%
of the Value of Eligible Inventory up to a maximum of
$20,000,000.
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As of any date,
the Borrowing Base shall be determined on the basis of the
information contained in the most recent Borrowing Base
Certificate.
(e) “Borrowing
Base Certificate” means the certificate in the form of
Exhibit 2.1.4 attached hereto which is required to be
delivered to Lender in accordance with Section 2.1.4 hereof.
Borrower shall not include any inventory in a Borrowing Base
Certificate unless Borrower shall have: (1) notified Lender in
writing of the location of the inventory; (2) executed such
documents including, without limitation, financing statements, as
are required by Lender to perfect a security interest in such
inventory; and (3) Lender shall have notified Borrower that
any such documents have been duly filed or recorded.
(f) “Cash
Flow Leverage Ratio” shall mean the ratio of Borrower’s
Interest Bearing Debt to EBITDA for the applicable quarter
(calculated on a four-quarter rolling average).
(g) “Collateral”
shall mean Borrower’s warehouse / office facility located at
10077 South 134 th Street, Omaha, Nebraska and any other property
or right, tangible or intangible, in any form whatsoever, provided
from time to time as security for the discharge of any obligation
of Borrower to Lender including, without limitation, all of
Borrower’s accounts receivable, inventory, machinery and
equipment, general intangibles and accounts.
(h) “Collateral
Agreements” shall mean all documents and agreements delivered
to secure the payment and performance of any obligation of Borrower
to Lender including, without limitation, the documents and
agreements for such purpose referred to in Section 2.6 and any
and all documents and agreements delivered in the future for such
purpose.
(i)
“Debt” means (1) all items of indebtedness or
liability which in accordance with generally accepted accounting
principles would be included in determining total liabilities as
shown on the liabilities side of a balance sheet at the date as of
which Debt is to be determined, (2) indebtedness secured by any
mortgage, pledge, lien or security interest existing on property
owned by the Person whose debt is being determined, whether or not
the indebtedness secured thereby shall have been assumed and
(3) guaranties, endorsements (other than for purposes of
collection in the ordinary course of business consistent with past
practice) and other contingent
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obligations in
respect of, or to purchase or otherwise acquire, indebtedness of
others, such obligations to be included at the face amount of such
obligation assuming all contingencies to have been met.
(j) “Distributions”
means all payments or other distributions of cash or other assets
in the form of management, development or other fees, net increase
in loans or advances (but in no event less than zero), dividends,
distributions for the payment of federal and state income taxes,
stock repurchases or redemptions, bonuses, principal payments on
indebtedness of Borrower’s partners or its other Affiliates
or any other payment to any of Borrower’s partners or its
other Affiliates to the extent such payments or other distributions
are not already a reduction of net income after taxes in
calculating EBITDA; provided, however, Distributions shall not
include refunds, rebates or credits associated with sales of
Inventory made to shareholders of PVPL in the ordinary course of
business consistent with past practice.
(k) “EBITDA”
means, for any period, the sum of (1) net income after taxes
for such period, (2) amortization and depreciation expense for such
period, (3) total interest expense (whether paid or accrued
and including the interest component of payments under capital
leases) for such period and (4) income tax expense for such
period.
(l) “Eligible
Accounts Receivable” or “Eligible Receivables”
shall mean any Receivable of Borrower in which Lender has a first
priority perfected security interest and which complies with each
of the following requirements:
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(1)
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it
arises out of a bona fide sale of goods sold and delivered by or on
behalf of Borrower, or is in the process of being delivered by or
on behalf of Borrower, to the Account Debtor on said
Receivable;
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(2)
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all
warranties set forth in this Agreement and the applicable
Collateral Agreements are true and correct in all material respects
with respect thereto;
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(3)
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it
has been identified to Lender by Borrower in a manner reasonably
satisfactory to Lender;
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(4)
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it
arises from the sale of Inventory and it is evidenced by an invoice
(dated not later than the date of shipment) rendered to the Account
Debtor thereunder;
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(5)
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it
has not remained unpaid in whole or in part for a period of more
than sixty (60) days from and after the due date
thereof;
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(6)
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it
is not owed by an Account Debtor who is an employee of or which is
an Affiliate of Borrower (excluding MarketLink);
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(7)
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it
is not owing by any Account Debtor located outside of the United
States unless such Receivable is insured by accounts receivable
insurance satisfactory to Lender naming Lender as an additional
lender loss payee;
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(8)
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the
amount of such Receivable represented as owing is not disputed and
it is net of any credit or allowance given by Borrower to such
Account Debtor;
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(9)
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the
Receivable is not subject to any counterclaim or defense asserted
by the Account Debtor thereunder, nor is it subject to any offset
or contra account payable to the Account Debtor or to any
repurchase obligations or return rights, such as those arising
under sales made on a “bill-and-hold”,
“guaranteed sale”, “sale on approval” or
consignment basis;
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(10)
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in
the case of a Receivable which constitutes or is a component of
chattel paper including, without limitation, chattel paper
generated in connection with the sale of the Borrower’s
Inventory to its customers on a purchase money secured basis, each
component of such chattel paper: (i) is in the exclusive
possession of Borrower or in the event Lender has requested
delivery pursuant to the Collateral Agreements, is in the
possession of Lender; and (ii) is prominently stamped with the
following legend: “This writing and the indebtedness
evidenced or secured hereby is subject to a first priority
perfected security interest from First National Bank of
Omaha”; and
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(11)
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it
is net of all finance charges less than sixty (60) days
old.
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(m) “Eligible
Inventory” means any Inventory of Borrower in which Lender
has a first priority perfected security interest and which complies
with each of the following requirements:
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(1)
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it
is readily usable or marketable by Borrower in the ordinary course
of its business consistent with past practice;
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(2)
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it
substantially conforms to the represented specifications and other
quality standards of Borrower;
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(3)
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all
warranties as set forth in this Agreement and the Collateral
Agreements are true and correct in all material respects with
respect thereto;
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(4)
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it
has been identified to Lender in the manner prescribed by Lender
pursuant to the applicable Collateral Agreements;
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(5)
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it
is located at a location in the United States of America disclosed
to and approved by Lender and, if requested by Lender, any Person
(other than Borrower) owning or controlling such location shall
have waived all right, title and interest in and to such Inventory
in a manner satisfactory to Lender;
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(6)
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it
is priced in accordance with generally accepted accounting
practices and consistent with Borrower’s method of pricing of
Inventory elected in its year-end financial statements referred to
in Section 4.5;
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(7)
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it
has not given rise to a Receivable; and
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(8)
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it
is not Inventory of ProConn.
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(n) “Event
of Default” means those acts or omissions described in
Article VII, after the expiration of any grace period provided
therein.
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(o) “Interest
Bearing Debt” means any Debt of Borrower bearing interest,
whether or not payment was made during the measurement
period.
(p) “Inventory”
means all raw materials, work in process, finished goods, supplies
and goods held for sale or lease or furnished or to be furnished
under contracts of service in which Borrower now has or hereafter
acquires any right.
(q) “LIBOR
Rate” means with respect to the relevant period, the
one-month rate appearing on page 3750 of the Telerate Service (or
on any successor or substitute page of such service, or any
successor to or substitute for such service, providing rate
quotations comparable to those currently provided on such page of
such service, as determined by Lender from time to time for
purposes of providing quotations of interest rates applicable to
U.S. Dollar deposits in the London interbank market) with
first-class banks in the London interbank market at approximately
11:00 a.m. (London time), which shall be that one-month LIBOR
rate in effect and reset each New York Banking Day.
(r) “Loan”
or “Loans” means the total amount loaned or advanced by
Lender to Borrower or on behalf of Borrower including, without
limitation, the Notes, any modifications thereof and any other
obligation or indebtedness now existing or hereinafter arising
between Lender and Borrower.
(s) “New
York Banking Day” means any day (other than a Saturday or
Sunday) on which commercial banks are open for business in New
York, New York.
(t) “Notes”
means collectively the promissory notes evidencing the Revolving
Loan and the Term Loan, which are attached hereto and marked
Exhibits 2.1 and 2.2, respectively, together with any and all
extensions, renewals, modifications and substitutions thereof and
exchanges therefor.
(u) “Person”
means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or
political subdivision thereof.
(v) “Plan”
means an employee benefit plan or other plan maintained for
employees of Borrower, and covered by Title IV of the Employee
Retirement Income Security Act of 1974, as amended.
(w) “Receivables”
or “Accounts Receivable” shall mean all accounts,
contract rights, instruments, documents, chattel paper and general
intangibles in which Borrower now has or hereafter acquires any
right.
(x) “Reportable
Event” has the meaning assigned to that term in Title IV of
the Employee Retirement Income Security Act of 1974, as
amended.
(y) “Revolving
Loan” means the revolving credit facility in an amount up to
$40,000,000, as described in Section 2.1 and as provided in
the promissory note attached hereto as Exhibit 2.1.
(z) “Tangible
Net Worth” means the total of all assets properly appearing
on the balance sheet of Borrower in accordance with generally
accepted accounting principles, less the sum of the
following:
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(1)
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the
book amount of all such assets which would be treated as
intangibles under generally accepted accounting principles,
including, without limitation, all such items of goodwill,
trademarks, trademark rights, trade names, trade name rights,
brands, copyrights, patents, patent rights, licenses, deferred
charges and unamortized debt discount and expenses;
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(2)
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any
write-up in the book value of any such assets resulting from
revaluation thereof subsequent to the date of this
Agreement;
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(3)
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all
reserves, including reserves for depreciation, obsolescence,
depletion, insurance and inventory valuation, but excluding
contingency reserves not allocated for any particular purpose and
not deducted from assets;
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(4)
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the
amount, if any, at which any shares of stock of the Borrower appear
on the asset side of such balance sheet;
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(5)
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all
liabilities of the Borrower shown on such balance sheet;
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(6)
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all
investments in foreign Affiliates and nonconsolidated domestic
Affiliates; and
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(7)
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all
accounts or notes due to the Borrower from any shareholder,
director, officer, employee or Affiliate of Borrower.
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(aa) “Term
Loan” means the term loan facility in the amount of
$4,666,000, as described in Section 2.2 and as provided in the
promissory note attached hereto as Exhibit 2.2.
(bb) “Termination
Date” means December 1, 2009 or such earlier date that
the Revolving Loan is terminated under this Agreement.
(cc) “Value”
means, with respect to Eligible Inventory, as of any given date, an
amount equal to the lesser of (1) cost determined on a FIFO
inventory basis of accounting (all in accordance with generally
accepted accounting principles consistently applied) or
(2) market value for Inventory of similar kind, quality and
condition. The Values of Collateral stated by Borrower in its
Borrowing Base Certificates are subject to adjustment by Lender in
its reasonable discretion; provided, however, Lender shall have no
obligation to adjust the Values stated by Borrower.
Amount And Terms of
Facilities
Section 2.1 Revolving Loan. Subject to the terms and
conditions hereof, Lender agrees to make Advances to Borrower from
time to time during the period from the date hereof to and
including the Termination Date, in an aggregate amount at any time
outstanding not to exceed the lesser of (a) forty million dollars
($40,000,000) or (b) the Borrowing Base, as calculated from
time to time (the “Maximum Revolving Facility”). The
Revolving Loan shall be a revolving credit facility and it is
contemplated that Borrower will request Advances, make prepayments
and request additional Advances. Borrower’s obligation to
repay all Advances with interest thereon and additional terms under
the Revolving Loan shall be evidenced by a promissory note in the
form attached hereto and marked Exhibit 2.1 (herein, together
with any and all extensions, renewals, modifications and
substitutions thereof and exchanges therefore, the
“Revolving
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Note”).
Any unpaid principal and all accrued but unpaid interest under the
Revolving Loan shall be payable on the Termination Date.
Section 2.1.1 Interest Rate and Payments. The principal
amount of the Advances outstanding from time to time on the
Revolving Loan shall bear interest (computed on the basis of actual
days elapsed in a 360-day year) at a variable rate, reset daily,
equal to the LIBOR Rate as determined by Lender plus (a) 1.25%
per annum when the Cash Flow Leverage Ratio is less than or equal
to 3.00 to 1.00 (as set forth in the compliance certificate
delivered to Lender pursuant to Section 5.1(b)) or
(b) 1.50% per annum when the Cash Flow Leverage Ratio is more
than 3.00 to 1.00 (as set forth in the compliance certificate
delivered to Lender pursuant to Section 5.1(b)). Upon an Event
of Default, the Revolving Loan shall bear interest at the LIBOR
Rate as determined by Lender plus 7.50% per annum (the
“Default Rate”); provided, however, that in any event
no rate change shall be put into effect which would result in a
rate greater than the highest rate permitted by law. Interest
accruing on the principal balance of the Advances outstanding from
time to time shall be payable in arrears on the first day of each
month and on the Termination Date. Borrower agrees that Lender may
at any time or from time to time, without the request by Borrower,
make an Advance to Borrower, or apply the proceeds of any Advance,
for the purpose of paying all such interest when due.
Section 2.1.2 Mandatory Prepayment of Revolving Loan.
Without notice or demand, if the sum of the outstanding principal
balance of the Advances under the Revolving Loan shall at any time
exceed the Maximum Revolving Facility, Borrower shall immediately
prepay the Advances under the Revolving Loan to the extent
necessary to reduce the sum of the outstanding principal balance of
the Advances under the Revolving Loan to the Maximum Revolving
Facility. Any payment received by Lender under this
Section 2.1.2 shall be applied to the Advances under the
Revolving Loan, provided, that payments shall always be applied to
interest before principal.
Section 2.1.3 Non-Usage Fee. Borrower shall pay to
Lender a non-usage fee at the rate of 0.10% per annum of the unused
portion of the $40,000,000 Revolving Loan. The non-usage fee shall
be payable in arrears on each January 1, April 1, July 1
and October 1 and on the Termination Date.
Section 2.1.4 Borrowing Base and Borrowing Base
Certificate. Borrower shall provide Lender with information
regarding the Borrowing Base in such format and at such times as
Lender may request. Within twenty (20) days after the end of
each calendar month, Borrower shall provide to Lender a completed
and executed Borrowing Base Certificate in the form of
Exhibit 2.1.4 showing the calculation of the Borrowing Base
for the preceding calendar month.
Section 2.2 Term Loan. Subject to the terms and
conditions hereof, Lender agrees to make one Advance to Borrower
under the Term Loan in an amount equal to four million six hundred
sixty-six thousand dollars ($4,666,000). The Term Loan, the funds
advanced pursuant thereto and Borrower’s obligation to repay
the Advance with interest thereon shall be evidenced by a
promissory note in the form attached hereto and marked
Exhibit 2.2 (herein, together with any and all extensions,
renewals, modifications and substitutions thereof and exchanges
therefore, the “Term Note”). Any unpaid principal and
all accrued but unpaid interest under the Term Loan shall be
payable on December 1, 2016.
Section 2.2.1 Interest Rate and Payments. The Term Loan
shall bear interest (computed on the basis of actual days elapsed
in a 360-day year) at a fixed rate equal to 7.35% per annum. Upon
an Event of Default, the Term Loan shall bear interest at the
Default Rate; provided, however, that in any event no rate change
shall be put into effect which would result in a rate
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greater than
the highest rate permitted by law. Payments with respect to the
Term Loan shall be as follows: (a) interest only in advance at
the rate of $952.64 per day shall be due and payable on the date of
the Advance under the Term Loan to or for the benefit of Borrower
(including, without limitation, disbursement into an escrow for the
benefit of Borrower) for the period beginning on the date of the
Advance and ending on November 30, 2006; (b) one hundred
nineteen (119) installments of principal and interest in the
amount of $55,281.73 each shall be payable commencing on
January 1, 2007 and continuing on the first day of each and
every succeeding month until and including November 1, 2016
and (c) on December 1, 2016, all then unpaid principal
and interest thereon shall be due and payable.
Section 2.2.2 Breakfunding Prepayment Fee. There shall
be no prepayment of the Term Note; provided, however, Lender may
consider requests for its consent with respect to prepayment of the
Term Note, without incurring an obligation to do so, and Borrower
acknowledges that in the event that such consent is granted,
Borrower shall be required to pay Lender, upon prepayment of all of
the principal amount before final maturity, a prepayment fee as
provided for in the Term Note.
Section 2.3 Advancing Revolving Loan Funds. Unless
otherwise agreed to by the parties, Borrower shall give Lender
notice of a request for an Advance under the Revolving Note no
later than 2:00 p.m. on the day of the requested Advance. A request
for an Advance shall be on written notice to Lender or telephonic
request from any Person purporting to be authorized to request
Advances on behalf of Borrower, which notice or request shall
specify the date of the requested Advance and the amount thereof.
The names of Persons authorized to request Advances shall be
provided in writing to Lender. Upon fulfillment of the applicable
conditions set forth in this Agreement, Lender may disburse the
amount of the requested Advance by crediting the same to
Borrower’s demand deposit account maintained with Lender or
in such other manner as Lender and Borrower may from time to time
agree. Any request for an Advance shall be deemed a representation
that the warranties contained in Article IV are correct.
Borrower shall promptly confirm each telephonic request for an
Advance by executing and delivering an appropriate confirmation
certificate to Lender. Borrower shall be obligated to repay all
Advances in all events and notwithstanding the fact that the Person
requesting the same was not authorized to do so.
Section 2.4 Payment. All payments of principal and
interest under the Notes shall be made to the order of Lender in
immediately available funds. Unless specified by Borrower, Lender
may apply the payments received to the principal and/or interest on
any one or more of the Notes in Lender’s sole discretion. All
payments shall be payable in lawful money of the United States of
America. Borrower hereby authorizes Lender, if an Event of Default
occurs and if now or hereafter allowed under applicable law, to
charge, set off, appropriate and apply any and all deposits or
accounts (special or general) or other indebtedness with Lender an
amount up to the accrued interest, outstanding principal and fees
from time to time due and payable to Lender under this Agreement,
the Notes or any Collateral Agreement.
Section 2.5 Payment on Non-Business Days. Whenever any
payment to be made hereunder or under any of the Notes shall be
stated to be due on a Saturday, Sunday or a holiday for banks under
the laws of the State of Nebraska or the United States, such
payment may be made on the next succeeding bank business day, and
such extension of time shall in such case be included in the
computation of payment of interest due on such Note.
Section 2.6 Security and Collateral. As security for
the payment of the obligations due Lender hereunder including,
without limitation, the Notes, and for the payment of any other
debt, liability or obligation of Borrower to Lender under this
Agreement or otherwise, Borrower has
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executed and
delivered to Lender or arranged for the execution and delivery to
Lender of certain documents, agreements or instruments for securing
the payment or performance of the obligations of Borrower to Lender
including, without limitation, the following agreements referred to
herein and described by way of example but not as a limitation as
follows:
(a) Security
Agreement executed by PVPL in the form attached hereto and marked
Exhibit 2.6(a);
(b) Deed of
Trust, Security Agreement, Assignment of Leases and Rents and
Fixture Filing executed by PVPL in the form attached hereto and
marked Exhibit 2.6(b);
(c) Assignment
of Rents & Leases executed by PVPL in the form attached hereto
and marked Exhibit 2.6(c);
(d) Security
Agreement executed by ProConn in the form attached hereto and
marked Exhibit 2.6(d);
(e) Security
Agreement executed by Exact in the form attached hereto and marked
Exhibit 2.6(e);
(f) Environmental
Indemnity Agreement executed by PVPL in the form attached hereto
and marked Exhibit 2.6(f);
(g) Such
landlord’s waivers as Lender deems necessary or advisable;
and
(h) Such
UCC-1 Financing Statements executed by Borrower as Lender deems
necessary or advisable.
Section 2.7 Liability Records. Lender may maintain from
time to time, at its discretion, liability records as to any and
all Advances under the Revolving Loan and the Term Loan made or
repaid and interest accrued or paid under this Agreement and the
Notes. On demand by Lender, Borrower will admit and certify in
writing the exact principal balance outstanding to Lender for
Advances under the Revolving Loan or the Term Loan under this
Agreement.
Section 2.8 Application of Payments. Upon an Event of
Default, Lender shall determine in its sole discretion the order
and manner in which proceeds of Collateral and other payments that
Lender receives are applied to the Revolving Loan, the Term Loan,
interest thereon and any other obligation of Borrower, and Borrower
hereby irrevocably waives the right to direct the application of
any payment or proceeds. Upon an Event of Default, Lender shall
have the continuing and exclusive right to apply and reverse and
reapply any and all such proceeds and payments to any portion of
the obligations from Borrower to Lender.
Section 2.9 Indemnity for Returned Payments. If after
receipt of any payment of, or proceeds applied to the payment of,
all or any part of the obligations of Borrower, Lender is for any
reason required to surrender such payment or proceeds to any
Person, because such payment or proceeds is invalidated, declared
fraudulent, set aside, determined to be void or voidable as a
preference, or a diversion of trust funds, or for any other reason,
then such obligations or part thereof intended to be satisfied
shall be revived and continue and this Agreement shall continue in
full force as if such payment or proceeds had not been received by
Lender and Borrower shall be liable to pay to Lender, and hereby
does indemnify Lender and hold Lender harmless for the amount of
such payment or proceeds surrendered. The provisions of this
Section shall be and remain effective notwithstanding any contrary
action which may
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have been taken
by Lender in reliance upon such payment or proceeds, and any such
contrary action so taken shall be without prejudice to
Lender’s rights under this Agreement and shall be deemed to
have been conditioned upon such payment or proceeds having become
final and irrevocable. The provisions of this Section shall survive
the termination of this Agreement.
Section 2.10 Obligations Joint and Several. The
obligations of PVPL, ProConn and Exact under this Agreement and
under the Notes shall be joint and several. For the convenience of
the parties hereto, this Agreement has been prepared for execution
by multiple borrowers, each of which is a “Borrower”
for all purposes hereunder. Each of PVPL, ProConn and Exact hereby
represent, warrant and covenant for the benefit of Lender that it
is the intention of each of PVPL, ProConn and Exact that this
Agreement and the Notes be fully enforceable against each of them
in accordance with its terms to the same extent as if such party
had been the only party identified as “Borrower”
hereunder or thereunder.
Section 2.11 Use of Proceeds. The proceeds of the Loans
hereunder shall be used by Borrower to refinance Borrower’s
existing indebtedness and for working capital purposes of the
Borrower and for no other purpose or purposes. Borrower will not,
directly or ind
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