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EXHIBIT 10.18
[MERRILL LYNCH LOGO] No. 9706340301
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TERM WCMA(R) LOAN AGREEMENT
TERM WCMA LOAN AGREEMENT ("Loan Agreement") dated as of June 17, 1997, between
CELEBRITY, INC., a corporation organized and existing under the laws of the
State of Texas having its principal office at P.O. Box 6666, Tyler, TX 75711
("Customer"), and MERRILL LYNCH BUSINESS FINANCIAL SERVICES INC., a corporation
organized and existing under the laws of the State of Delaware having its
principal office at 33 West Monroe Street, Chicago, IL 60603 ("MLBFS").
In accordance with that certain WORKING CAPITAL MANAGEMENT(R) ACCOUNT AGREEMENT
NO. 54D-07052 ("WCMA Agreement") between Customer and MLBFS' affiliate, MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED ("MLPF&S"), Customer has subscribed
to the WCMA Program described in the WCMA Agreement. The WCMA Agreement is by
this reference incorporated as a part hereof. In conjunction therewith,
Customer has requested that MLBFS make the Term WCMA Loan hereinafter described
(the "Loan"); and, subject to the terms and conditions herein set forth, MLBFS
has agreed to make the Loan to Customer.
The Loan combines the equivalent of seven successive one-year term loans, each
equal to that portion of the Loan which will be fully amortized in the ensuing
year, with a line of credit under the WCMA Program ("WCMA Line of Credit")
equal to that portion of the Loan which will not be amortized in the ensuing
year. Subject to the terms hereof, each year after the initial funding there
will be an additional funding on account of the term portion of the Loan, with
the proceeds deposited into Customer's WCMA Account concurrently with a
corresponding reduction in the Maximum WCMA Line of Credit.
This structure provides Customer with substantially the same initial funding
and loan amortization as a conventional term loan. However, unlike most
conventional term loans, it permits both a prepayment in whole or in part at
any time without penalty, and, subject to the terms and conditions herein set
forth, a re-borrowing on a revolving basis of any such amounts prepaid on
account of the WCMA Line of Credit portion of the Loan. The structure of the
Loan therefore enables Customer at its option to use any free cash balances
that it may have from time to time to reduce interest expense on the line of
credit portion of the Loan without impairing its working capital.
Accordingly, and in consideration of the premises and of the mutual covenants
of the parties hereto, Customer and MLBFS hereby agree as follows:
ARTICLE I. DEFINITIONS
1.1 SPECIFIC TERMS. In addition to terms defined elsewhere in this Loan
Agreement, when used herein the following terms shall have the following
meanings:
(a)"Additional Agreements" shall mean all agreements, instruments, documents
and opinions other than this Loan Agreement, whether with or from Customer or
any other party, which are contemplated hereby or otherwise reasonably required
by MLBFS in connection herewith, or which evidence the creation, guaranty or
collateralization of any of the Obligations or the granting or perfection of
liens or security interests upon any collateral for the Obligations, and shall
include, without limitation, the Term WCMA Note.
(b)"Bankruptcy Event" shall mean any of the following: (i) a proceeding under
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt
or receivership law or statute shall be filed or consented to by Customer or
any Guarantor; or (ii) any such proceeding shall be filed against Customer or
any Guarantor and shall not be dismissed or withdrawn within sixty (60) days
after filing; or (iii) Customer or any Guarantor shall make a general
assignment for the benefit of creditors; or (iv) Customer or
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any Guarantor shall become insolvent or generally fail to pay or admit in
writing its inability to pay its debts as they become due; or (v) Customer or
any Guarantor shall be adjudicated a bankrupt or insolvent.
(c)"Business Day" shall mean any day other than a Saturday, Sunday, federal
holiday or other day on which the New York Stock Exchange is regularly closed.
(d)"Closing Date" shall mean the date upon which all conditions precedent to
MLBFS' obligation to make the Loan shall have been met to the satisfaction of
MLBFS.
(e)"Commitment Expiration Date" shall mean July 17, 1997.
(f)"Commitment Fee" shall mean a fee of $50,000.00 due to MLBFS in connection
with this Loan Agreement.
(g)"General Funding Conditions" shall mean each of the following conditions to
any loan or advance by MLBFS hereunder: (i) no Event of Default, or event which
with the giving of notice, passage of time, or both, would constitute an Event
of Default, shall have occurred and be continuing or would result from the
making of such loan or advance hereunder by MLBFS; (ii) there shall not have
occurred and be continuing any material adverse change in the business or
financial condition of Customer or any Guarantor; (iii) all representations and
warranties of Customer or any Guarantor herein or in any Additional Agreements
shall then be true and correct in all material respects; (iv) MLBFS shall have
received this Loan Agreement and all Additional Agreements (including, without
limitation, each of the Additional Agreements described in the definition of
"Real Property Funding Condition"), duly executed and filed or recorded where
applicable, all of which shall be in form and substance reasonably satisfactory
to MLBFS; (v) the Commitment Fee shall have been paid in full; (vi) MLBFS shall
have received, as and to the extent applicable, copies of invoices, bills of
sale, loan payoff letters and/or other evidence reasonably satisfactory to it
that the proceeds of the Loan will satisfy the Loan Purpose; (vii) MLBFS shall
have received evidence reasonably satisfactory to it as the ownership of and
the perfection and priority of MLBFS' liens and security interests on any
collateral for the Obligations furnished pursuant to any of the Additional
Agreements; and (viii) any additional conditions specified in the "Term WCMA
Approval" letter executed by MLBFS with respect to the transactions
contemplated hereby shall have been met to the reasonable satisfaction of
MLBFS.
(h)"Guarantor" shall mean a person or entity who has either guaranteed or
provided collateral for any or all of the Obligations; and "Business Guarantor"
shall mean any such Guarantor that is a corporation, partnership,
proprietorship, limited liability company or other entity regularly engaged in
a business activity.
(i)"Interest Rate" shall have the meaning set forth in the Term WCMA Note.
(j)"Loan Amount" shall mean an amount equal to the lesser of (i) 100% of the
aggregate cost to Customer of satisfying or fulfilling the Loan Purpose, (ii)
the aggregate amount which Customer shall request be advanced by MLBFS on
account of the Loan Purpose, or (iii) $5,000,000.00.
(k)"Loan Purpose" shall mean the purpose for which the proceeds of the Loan
will be used; to wit: to refinance the mortgages on the properties located at
4520 Old Troup Highway, Tyler, Smith Co., Texas and 3200 Centre Park Blvd.,
Winston-Salem, North Carolina with Nations Bank and to finance working capital
expenditures.
(l)"Maximum WCMA Line of Credit" shall mean the maximum aggregate line of
credit which MLBFS will extend to Customer subject to the terms and conditions
hereof, as the same shall be reduced from time to time in accordance with the
terms hereof.
(m)"Obligations" shall mean all liabilities, indebtedness and other obligations
of Customer to MLBFS, howsoever created, arising or evidenced, whether now
existing or hereafter arising, whether direct or indirect, absolute or
contingent, due or to become due, primary or secondary or joint or several,
and, without limiting the foregoing, shall include interest accruing after the
filing of any petition in bankruptcy, and all present and future liabilities,
indebtedness and obligations of Customer under this Loan Agreement and the Term
WCMA Note.
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(n)"Real Property" shall mean the real property and improvements thereon
commonly known as 4520 Old Troup Highway, Tyler, Texas and 3200 Centre Park
Blvd., Winson-Salem, North Carolina.
(o)"Real Property Funding Condition" shall mean that Customer, at Customer's
expense, shall have furnished or caused to be furnished to MLBFS all of the
following, in form and substance reasonably satisfactory to MLBFS: (i) first
mortgages or deed of trusts upon the Real Property in favor of MLBFS (including
assignments of rents and security agreements granting to MLBFS first security
interests upon all fixtures now or hereafter located upon the Real Property);
(ii) a policy or commitment for a policy of ALTA mortgagee's title insurance
for each location insuring MLBFS' liens upon the Real Property for the full
amount of the Loan, issued by Chicago Title Insurance Company or one of its
agents or another title insurance company selected by MLBFS, with such special
endorsements as may reasonably be required by MLBFS and subject only to
exceptions reasonably acceptable to MLBFS; (iii) Phase 1 Environmental Audit
Reports on the Real Property, prepared by an environmental specialist selected
by MLBFS, disclosing no conditions that are reasonably unacceptable to MLBFS;
(iv) appraisals of the Real Property prepared by an M.A.I. appraiser selected
by MLBFS demonstrating an aggregate fair market value of not less than
$6,625,000.00; (v) current as-built ALTA surveys of the Real Property certified
in favor of MLBFS and the title insurance company; and (vi) such other
agreements, documents and instruments in connection with the Real Property or
MLBFS' lien thereon as MLBFS or the title insurance company may reasonably
require.
(p)"Term WCMA Note" shall mean and refer to the Term WCMA Note executed by
Customer and dated as of the date hereof which incorporates both a WCMA Note
evidencing amounts owing on account of the WCMA Line of Credit portion of the
Loan, and a Term Note evidencing amounts owing on account of the term portion
of the Loan.
(q)"WCMA Account" shall mean and refer to the Working Capital Management
Account of Customer with MLPF&S identified as WCMA Account No. 54D-07052.
(r)"WCMA Loan" shall mean each advance made by MLBFS pursuant to the WCMA Line
of Credit.
(s)"WCMA Loan Balance" shall mean an amount equal to the aggregate unpaid
principal balance of all WCMA Loans.
1.2 OTHER TERMS. Except as otherwise defined herein: (i) all terms used in this
Loan Agreement which are defined in the Uniform Commercial Code of Illinois
("UCC") shall have the meanings set forth in the UCC, and (ii) capitalized
terms used herein which are defined in the WCMA Agreement shall have the
meanings set forth in the WCMA Agreement.
ARTICLE II. THE LOAN
2.1 COMMITMENT. Subject to the terms and conditions hereof, MLBFS hereby agrees
to make the Loan to Customer, and Customer hereby agrees to borrow the Loan
from MLBFS. Unless otherwise hereafter agreed by MLBFS, the entire proceeds of
the Loan will be disbursed either directly to the applicable third party or
parties on account of the Loan Purpose or to reimburse Customer for amounts
directly expended by it; all as directed by Customer in a Closing Certificate
to be executed and delivered to MLBFS prior to the date of funding.
2.2 OPERATION OF LOAN.
(a) TERM WCMA NOTE. The Loan will be evidenced by and shall be repayable in
accordance with the terms of the Term WCMA Note and this Loan Agreement. The
Term WCMA Note combines two promissory notes, one evidencing the term portion
of the Loan (the "Term Note") and the other evidencing the WCMA Line of Credit
portion of the Loan (the "WCMA Note"). The balance owing by Customer on account
of the Loan at any
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time shall be an amount equal to the sum of the then outstanding balances under
the WCMA Note and the Term Note included in the Term WCMA Note. The Term WCMA
Note is hereby incorporated as a part hereof.
(b) TERM NOTE PRINCIPAL. The principal balance owing under the Term Note at any
time shall be an amount equal to the unpaid portion of the amount funded from
time to time on account of the Term Note, as hereinafter provided. So long as
there shall be any moneys owing by Customer to MLBFS hereunder or there shall
be a WCMA Line of Credit, no reduction in the unpaid principal balance of the
Term Note to zero shall be deemed a payment of the Term Note in full or an
extinguishment of any of the obligations of Customer thereunder or hereunder.
(c) TERM NOTE FUNDING. Subject to the terms hereof, the Term Note will be
funded by MLBFS in seven annual installments, with the first six installments
each equal to one-fifteenth of the Loan Amount, and the final installment equal
to nine-fifteenths of the Loan Amount. The first one-fifteenth installment
funded by MLBFS will be funded on the Closing Date and applied on account of
the Loan Purpose, as aforesaid. Subsequent installments will be funded on a
date chosen by MLBFS in its sole discretion which will be on or within two
weeks before or after each subsequent anniversary of the last day of the
calendar month in which the Closing Date occurs (each, a "Subsequent Funding
Date"). Each Term Note funding after the first shall be deposited into
Customer's WCMA Account.
(d) ACTIVATION OF WCMA LINE. On the Closing Date, MLBFS will activate and make
available as an integral part of the Loan a WCMA Line of Credit equal to
fourteen-fifteenths of the Loan Amount, all of which will be immediately
disbursed on account of the Loan Purpose as part of the Loan in accordance with
the directions of Customer set forth in the Closing Certificate, as aforesaid.
(e) SUBSEQUENT FUNDINGS. On the first Subsequent Funding Date, concurrently
with MLBFS' funding of the second installment of the debt evidenced by the Term
Note into the WCMA Account, the Maximum WCMA Line of Credit will be reduced to
an amount equal to thirteen-fifteenths of the Loan Amount. On the second
Subsequent Funding Date, the Maximum WCMA Line of Credit will be reduced to an
amount equal to twelve-fifteenths of the Loan Amount; on the third Subsequent
Funding Date the Maximum WCMA Line of Credit will be reduced to an amount equal
to eleven-fifteenths of the Loan Amount; on the fourth Subsequent Funding Date
the Maximum WCMA Line of Credit will be reduced to an amount equal to ten-
fifteenths of the Loan Amount; and on the fifth Subsequent Funding Date, the
Maximum WCMA Line of Credit will be reduced to an amount equal to nine-
fifteenths of the Loan Amount.
(f) WCMA MATURITY DATE. On the sixth Subsequent Funding Date (the "WCMA
Maturity Date"), the WCMA Line of Credit will be terminated and the WCMA
Account, at the option of Customer, will either be converted to a WCMA Cash
Account (subject to any requirements of MLPF&S) or terminated.
2.3 CONDITIONS OF MLBFS' OBLIGATION. The Closing Date and MLBFS' obligation to
make the Loan on the Closing Date are subject to the prior fulfillment of each
of the following conditions: (a) MLBFS shall have received a written request
from Customer that the Loan be funded in accordance with the terms hereof,
together with a written direction from Customer as to the method of payment and
payee(s) of the proceeds of the Loan, which request and direction shall have
been received by MLBFS not less than two Business Days prior to any requested
funding date; (b) the Commitment Expiration Date shall not then have occurred;
and (c) each of the General Funding Conditions and the Real Property Funding
Condition shall have been met or satisfied to the reasonable satisfaction of
MLBFS.
2.4 CONDITIONS OF SUBSEQUENT FUNDINGS. The obligation of MLBFS to fund
installments of the term portion of the Loan on any Subsequent Funding Date
shall be subject to each of the conditions specified in Section 2.3(c) hereof
being met at such date, and the further condition that all payments due under
the Term Note on or prior to any Subsequent Funding Date shall have been paid
in full; provided, however, that notwithstanding the failure of any such
conditions to have been met, MLBFS may in its sole discretion fund such
installment and/or any other installments, and no such funding shall constitute
a waiver by MLBFS of any of its rights hereunder or under any of the Additional
Agreements. Without limiting the foregoing, it is understood that no funding by
MLBFS of any sum hereunder while an Event of Default shall have occurred and is
continuing
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shall under any circumstances be deemed a waiver by MLBFS of such Event of
Default, or a waiver of any of MLBFS' rights hereunder.
2.5 COMMITMENT FEE. In consideration of the agreement by MLBFS to extend the
Loan to Customer in accordance with and subject to the terms hereof, Customer
has paid or shall, on or before the Closing Date pay, the Commitment Fee to
MLBFS. Customer acknowledges and agrees that the Commitment Fee has been fully
earned by MLBFS, and that it will not under any circumstances be refundable.
2.6 ACKNOWLEDGMENTS OF CUSTOMER. Customer acknowledges, covenants and agrees
that:
(a) PAYMENT OF WCMA INTEREST; ADDITIONAL DEPOSITS. Under the terms of this Loan
Agreement, interest accrued on amounts outstanding on the WCMA Line of Credit
each month will, subject to the terms hereof, ordinarily be paid from the
proceeds of a borrowing of an additional sum under the WCMA Line of Credit.
Because all or substantially all of the Maximum WCMA Line of Credit will
ordinarily be drawn on the Closing Date, CUSTOMER AGREES THAT IT WILL, WITHOUT
DEMAND, INVOICING OR THE REQUEST OF MLBFS, FROM TIME TO TIME MAKE SUFFICIENT
DEPOSITS INTO THE WCMA ACCOUNT IN ORDER TO ASSURE THAT THE MAXIMUM WCMA LINE OF
CREDIT IS NOT EXCEEDED. Installments of principal and interest under the Term
Note shall be paid directly to MLBFS in accordance with the terms of the Term
Note.
(b) ADDITIONAL INTEREST CHARGES. SUBJECT TO THE TERMS HEREOF, ON EACH
SUBSEQUENT FUNDING DATE MLBFS WILL DEPOSIT THE AMOUNT FUNDED INTO THE WCMA
ACCOUNT. DUE TO POSSIBLE DELAYS IN POSTING AS WELL AS CERTAIN DELAYS IN
RECOGNITION OF DEPOSITS INHERENT IN THE WCMA PROGRAM, CUSTOMER WILL NOT RECEIVE
CREDIT FOR THE AMOUNT DEPOSITED FOR UP TO SEVERAL DAYS THEREAFTER, RESULTING IN
AN INTEREST CHARGE FOR THAT PERIOD OF TIME ACCRUING AND CHARGED IN THE WCMA
ACCOUNT. ON THE OTHER HAND, BECAUSE MLBFS BORROWS ALL OR SUBSTANTIALLY ALL OF
THE FUNDS THAT IT LENDS ON THE DATE OF FUNDING, IT MUST CHARGE INTEREST ON THE
AMOUNT FUNDED ON EACH SUBSEQUENT FUNDING DATE FROM THE DATE OF ITS DEPOSIT INTO
THE WCMA ACCOUNT, WHETHER OR NOT SUCH DEPOSIT IS IMMEDIATELY RECOGNIZED. THE
TIMING DIFFERENCES BETWEEN THE DATE OF DEPOSIT AND DATE OF RECOGNITION OF THE
DEPOSIT IN THE WCMA ACCOUNT WILL THEREFORE RESULT IN EXTRA INTEREST CHARGES TO
CUSTOMER, WHICH CUSTOMER ACKNOWLEDGES ARE AN ADDITIONAL COST OF THE LOAN AND
HEREBY UNCONDITIONALLY AGREES TO PAY.
ARTICLE III. THE WCMA LINE OF CREDIT
3.1 WCMA NOTE.
All amounts owing under the WCMA Line of Credit shall be deemed owing under and
evidenced by the WCMA Note included in the Term WCMA Note.
3.2 WCMA LOANS.
(a) LOAN COMMITMENT AND REQUESTS. Subject to the terms and conditions hereof:
(i) on the Closing Date, MLBFS will make a WCMA Loan to Customer in an amount
equal to the Maximum WCMA Line of Credit, the entire proceeds of which will be
disbursed on account of the Loan Purpose, as aforesaid; and (ii) during the
period from and after the Closing Date to the WCMA Maturity Date: (x) Customer
may repay said WCMA Loan and any other WCMA Loans in whole or in part at any
time without premium or penalty, and request a re-borrowing of amounts repaid
on a revolving basis, and (y) MLBFS will make such additional WCMA Loans as
Customer may from time to time request in accordance with the terms hereof.
Customer may request WCMA Loans by use of WCMA Checks, FTS, Visa(R) charges,
wire transfers, or such other means of access to the WCMA Line of Credit as may
be permitted by MLBFS from time to time; it being understood that so long as
the WCMA Line of Credit shall be in effect, any charge or debit to the WCMA
Account which but for the WCMA Line of Credit would under the terms of the WCMA
Agreement result in an overdraft, shall be deemed a request by Customer for a
WCMA Loan.
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(b) CONDITIONS OF WCMA LOANS. Notwithstanding the foregoing, MLBFS shall not be
obligated to make any WCMA Loan, and may without notice refuse to honor any
such request by Customer, if at the time of receipt by MLBFS of Customer's
request: (i) the making of such WCMA Loan would cause the Maximum WCMA Line of
Credit to be exceeded; or (ii) the Maturity Date shall have occurred, or the
WCMA Line of Credit shall have otherwise been terminated in accordance with the
terms hereof; or (iii) an event shall have occurred and is continuing which
shall have caused any of the General Funding Conditions to not then be met or
satisfied to the reasonable satisfaction of MLBFS. The making by MLBFS of any
WCMA Loan at a time when any one or more of said conditions shall not have been
met shall not in any event be construed as a waiver of said condition or
conditions or of any Event of Default, and shall not prevent MLBFS at any time
thereafter while any condition shall not have been met from refusing to honor
any request by Customer for a WCMA Loan.
(c) FORCE MAJEURE. MLBFS shall not be responsible, and shall have no liability
to Customer or any other party, for any delay or failure of MLBFS to honor any
request of Customer for a WCMA Loan or any other act or omission of MLBFS,
MLPF&S or any of their affiliates due to or resulting from any system failure,
error or delay in posting or other clerical error, loss of power, fire, Act of
God or other cause beyond the reasonable control of MLBFS, MLPF&S or any of
their affiliates unless directly arising out of the willful wrongful act or
active gross negligence of MLBFS. In no event shall MLBFS be liable to Customer
or any other party for any incidental or consequential damages arising from any
act or omission by MLBFS, MLPF&S or any of their affiliates in connection with
the WCMA Line of Credit or this Loan Agreement.
(d) INTEREST. The WCMA Loan Balance shall bear interest at the Interest Rate.
Interest shall be computed for the actual number of days elapsed on the basis
of a year consisting of 360 days. Except as otherwise provided herein, accrued
and unpaid interest on the WCMA Loan Balance shall be payable monthly on the
last Business Day of each calendar month, commencing with the last Business Day
of the calendar month in which the Closing Date shall occur. Customer hereby
irrevocably authorizes and directs MLPF&S to pay MLBFS such accrued interest
from any available free credit balances in the WCMA Account, and if such
available free credit balances are insufficient to satisfy any interest payment
due, to liquidate any investments in the Money Accounts (other than any
investments constituting any Minimum Money Accounts Balance under the WCMA
Directed Reserve program) in an amount up to the balance of such accrued
interest, and pay to MLBFS the available proceeds on account thereof. If
available free credit balances in the WCMA Account and available proceeds of
the Money Accounts are insufficient to pay the entire balance of accrued
interest, and Customer otherwise fails to make such payment when due, MLBFS
may, in its sole discretion, make a WCMA Loan in an amount equal to the balance
of such accrued interest and pay the proceeds of such WCMA Loan to itself on
account of such interest. The amount of any such WCMA Loan will be added to the
WCMA Loan Balance. If MLBFS declines to extend a WCMA Loan to Customer under
these circumstances, Customer hereby authorizes and directs MLPF&S to make all
such interest payments to MLBFS from any Minimum Money Accounts Balance. If
there is no Minimum Money Accounts Balance, or it is insufficient to pay all
such interest, MLBFS will invoice Customer for payment of the balance of the
accrued interest, and Customer shall pay such interest as directed by MLBFS
within 5 Business Days of receipt of such invoice.
(e) PAYMENTS. All payments required or permitted to be made pursuant to this
Loan Agreement shall be made in lawful money of the United States. Unless
otherwise directed by MLBFS, payments on account of the WCMA Loan Balance may
be made by the delivery of checks (other than WCMA Checks), or by means of FTS
or wire transfer of funds (other than funds from the WCMA Line of Credit) to
MLPF&S for credit to Customer's WCMA Account. Notwithstanding anything in the
WCMA Agreement to the contrary, Customer hereby irrevocably authorizes and
directs MLPF&S to apply available free credit balances in the WCMA Account to
the repayment of the WCMA Loan Balance prior to application for any other
purpose. Payments to MLBFS from funds in the WCMA Account shall be deemed to be
made by Customer upon the same basis and schedule as funds are made available
for investment in the Money Accounts in accordance with the terms of the WCMA
Agreement. The acceptance by or on behalf of MLBFS of a check or other payment
for a lesser amount than shall be due from Customer, regardless of any
endorsement or statement thereon or transmitted therewith, shall not be deemed
an accord and satisfaction or anything other than a payment on account, and
MLBFS or anyone acting on behalf of MLBFS may accept such check or other
payment without
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prejudice to the rights of MLBFS to recover the balance actually due or to
pursue any other remedy under this Loan Agreement or applicable law for such
balance. All checks accepted by or on behalf of MLBFS in connection with the
Loan and WCMA Line of Credit are subject to final collection.
(f) EXCEEDING THE MAXIMUM WCMA LINE OF CREDIT. In the event that the WCMA Loan
Balance shall at any time exceed the Maximum WCMA Line of Credit, Customer
shall within 1 Business Day of the first to occur of (i) any request or demand
of MLBFS, or (ii) receipt by Customer of a statement from MLPF&S showing a WCMA
Loan Balance in excess of the Maximum WCMA Line of Credit, deposit sufficient
funds into the WCMA Account to reduce the WCMA Loan Balance below the Maximum
WCMA Line of Credit.
(g) STATEMENTS. MLPF&S will include in each monthly statement it issues under
the WCMA Program information with respect to WCMA Loans and the WCMA Loan
Balance. Any questions that Customer may have with respect to such information
should be directed to MLBFS; and any questions with respect to any other matter
in such statements or about or affecting the WCMA Program should be directed to
MLPF&S.
ARTICLE IV. GENERAL PROVISIONS
4.1 REPRESENTATIONS AND WARRANTIES.
Customer represents and warrants to MLBFS that:
(a)ORGANIZATION AND EXISTENCE. Customer is a corporation, duly organized and
validly existing in good standing under the laws of the State of Texas and is
qualified to do business and in good standing in each other state where the
nature of its business or the property owned by it make such qualification
necessary; and, where applicable, each Business Guarantor is duly organized,
validly existing and in good standing under the laws of the state of its
formation and is qualified to do business and in good standing in each other
state where the nature of its business or the property owned by it make such
qualification necessary.
(b)EXECUTION, DELIVERY AND PERFORMANCE. The execution, delivery and performance
by Customer of this Loan Agreement and by Customer and each Guarantor of such
of the Additional Agreements to which it is a party: (i) have been duly
authorized by all requisite action, (ii) do not and will not violate or
conflict with any law or other governmental requirement, or any of the
agreements, instruments or documents which formed or govern Customer or any
such Guarantor, and (iii) do not and will not breach or violate any of the
provisions of, and will not result in a default by Customer or any such
Guarantor under, any other agreement, instrument or document to which it is a
party or by which it or its properties are bound.
(c)NOTICES AND APPROVALS. Except as may have been given or obtained, no notice
to or consent or approval of any governmental body or authority or other third
party whatsoever (including, without limitation, any other creditor) is
required in connection with the execution, delivery or performance by Customer
or any Guarantor of such of this Loan Agreement, the Term WCMA Note and the
other Additional Agreements to which it is a party.
(d)ENFORCEABILITY. This Loan Agreement, the Term WCMA Note and such of the
other Additional Agreements to which Customer or any Guarantor is a party are
the respective legal, valid and binding obligations of Customer and such
Guarantor, enforceable against it or them, as the case may be, in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy and other similar laws affecting the rights of creditors generally
or by general principles of equity.
(e)FINANCIAL STATEMENTS. Except as expressly set forth in Customer's or any
Business Guarantor's financial statements, all financial statements of Customer
and each Business Guarantor furnished to MLBFS have been prepared in conformity
with generally accepted accounting principles, consistently applied, are true
and correct, and fairly present the financial condition of it as at such dates
and the results of its operations for the periods then ended; and since the
most recent date covered by such financial statements, there has been no
material adverse change in any such financial condition or operation. All
financial statements furnished to MLBFS of any Guarantor other than a Business
Guarantor are true and correct and fairly represent such
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Guarantor's financial condition as of the date of such financial statements,
and since the most recent date of such financial statements, there has been no
material adverse change in such financial condition.
(f)LITIGATION. No litigation, arbitration, administrative or governmental
proceedings are pending or, to the knowledge of Customer, threatened against
Customer or any Guarantor, which would, if adversely determined, materially and
adversely affect the liens and security interests of MLBFS hereunder or under
any of the Additional Agreements, the financial condition of Customer or any
such Guarantor or the continued operations of Customer or any Business
Guarantor.
(g)TAX RETURNS. All federal, state and local tax returns, reports and
statements required to be filed by Customer and each Guarantor have been filed
with the appropriate governmental agencies and all taxes due and payable by
Customer and each Guarantor have been timely paid (except to the extent that
any such failure to file or pay will not materially and adversely affect either
the liens and security interests of MLBFS hereunder or under any of the
Additional Agreements, the financial condition of Customer or any Guarantor, or
the continued operations of Customer or any Business Guarantor).
Each of the foregoing representations and warranties: (i) has been and will be
relied upon as an inducement to MLBFS to make the Loan, and (ii) is continuing
and shall be deemed remade by Customer on the Closing Date, on each Subsequent
Funding Date and concurrently with each request for a WCMA Loan.
4.2 FINANCIAL AND OTHER INFORMATION.
Customer shall furnish or cause to be furnished to MLBFS during the term of
this Loan Agreement all of the following:
(a)SEC REPORTS. Customer shall furnish to MLBFS with a copy of each 10-K and
10-Q report filed with the SEC not later than 10 days after the date filed with
the SEC.
(b)OTHER INFORMATION. Customer shall furnish or cause to be furnished to MLBFS
such other information as MLBFS may from time to time reasonably request
relating to Customer or any Guarantor.
4.3 OTHER COVENANTS. Customer further covenants and agrees during the term of
this Loan Agreement that:
(a) FINANCIAL RECORDS; INSPECTION. Customer and each Business Guarantor will:
(i) maintain at its principal place of business complete and accurate books and
records, and maintain all of its financial records in a manner consistent with
the financial statements heretofore furnished to MLBFS, or prepared on such
other basis as may be approved in writing by MLBFS; and (ii) permit MLBFS or
its duly authorized representatives, upon reasonable notice and at reasonable
times, to inspect its properties (both real and personal), operations, books
and records.
(b) TAXES. Customer and each Guarantor will pay when due all taxes, assessments
and other governmental charges, howsoever designated, and all other liabilities
and obligations, except to the extent that any such failure to pay will not
materially and adversely affect either any liens and security interests of
MLBFS under any Additional Agreements, the financial condition of Customer or
any Guarantor or the continued operations of Customer or any Business
Guarantor.
(c) COMPLIANCE WITH LAWS AND AGREEMENTS. Neither Customer nor any Guarantor
will violate any law, regulation or other governmental requirement, any
judgment or order of any court or governmental agency or authority, or any
agreement, instrument or document to which it is a party or by which it is
bound, if any such violation will materially and adversely affect either any
liens and security interests of MLBFS under any Additional Agreements, the
financial condition of Customer or any Guarantor, or the continued operations
of Customer or any Business Guarantor.
(d) USE OF LOAN PROCEEDS; SECURITIES TRANSACTIONS. The proceeds of the Loan
(including the initial WCMA Loan) shall be used by Customer solely for the Loan
Purpose, or, with the prior written consent of MLBFS, for
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other lawful business purposes of Customer not prohibited hereby. The proceeds
of each WCMA Loan other than the initial WCMA Loan shall be used by Customer
solely for working capital in the ordinary course of Customer's business, or,
with the prior written consent of MLBFS, for other lawful business purposes of
Customer not prohibited hereby. CUSTOMER AGREES THAT UNDER NO CIRCUMSTANCES
WILL THE LOAN OR FUNDS BORROWED FROM MLBFS THROUGH THE TERM WCMA LINE OF CREDIT
BE USED: ((i) FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES OF ANY PERSON
WHATSOEVER, OR (ii) TO PURCHASE, CARRY OR TRADE IN SECURITIES, OR REPAY DEBT
INCURRED TO PURCHASE, CARRY OR TRADE IN SECURITIES, WHETHER IN OR IN CONNECTION
WITH THE WCMA ACCOUNT, ANOTHER ACCOUNT OF CUSTOMER WITH MLPF&S OR AN ACCOUNT OF
CUSTOMER AT ANY OTHER BROKER OR DEALER IN SECURITIES.
(e) NOTIFICATION BY CUSTOMER. Customer shall provide MLBFS with prompt written
notification of: (i) any Event of Default, or event which with the giving of
notice, passage of time, or both, would constitute an Event of Default; (ii)
any materially adverse change in the business, financial condition or
operations of Customer or any Business Guarantor; and (iii) any information
which indicates that any financial statements of Customer or any Guarantor fail
in any material respect to present fairly the financial condition and results
of operations purported to be presented in such statements. Each notification
by Customer pursuant hereto shall specify the event or information causing such
notification, and, to the extent applicable, shall specify the steps being
taken to rectify or remedy such event or information.
(f) NOTICE OF CHANGE. Customer shall give MLBFS not less than 30 days prior
written notice of any change in the name (including any fictitious name) or
principal place of business or residence of Customer or any Guarantor.
(g) CONTINUITY. Except upon the prior written consent of MLBFS, which consent
will not be unreasonably withheld: (i) neither Customer nor any Business
Guarantor shall be a party to any merger or consolidation with, or purchase or
otherwise acquire all or substantially all of the assets of, or any material
stock, partnership, joint venture or other equity interest in, any person or
entity, or sell, transfer or lease all or any substantial part of its assets,
if any such action would result in either: (A) a material change in the
principal business, ownership or control of Customer or such Business
Guarantor, or (B) a material adverse change in the financial condition or
operations of Customer or such Business Guarantor; (ii) Customer and each
Business Guarantor shall preserve their respective existence and good standing
in the jurisdictions of establishment and operation, and shall not operate in
any material business substantially different from their respective business in
effect as of the date of application by Customer for credit from MLBFS; and
(iii) neither Customer nor any Business Guarantor shall cause or permit any
material change in its controlling ownership.
(h) DEBT TO WORTH. The ratio of Customer's total debt to Customer's tangible
net worth shall not at any time exceed 2.5 to 1. For the purposes hereof, the
term "tangible net worth" shall mean Customer's net worth as shown on
Customer's regular financial statements prepared in a manner consistent with
the terms hereof, but excluding an amount equal to (i) any assets which are
ordinarily classified as "intangible" in accordance with generally accepted
accounting principles, and (ii) any amounts now or hereafter directly or
indirectly owing to Customer by officers, shareholders or affiliates of
Customer.
4.4 EVENTS OF DEFAULT.
The occurrence of any of the following events shall constitute an "Event of
Default" under this Loan Agreement:
(a) FAILURE TO PAY. Customer shall fail to pay to MLBFS or deposit into the
WCMA Account when due any amount owing or required to be paid or deposited by
Customer under this Loan Agreement or the Term WCMA Note, or shall fail to pay
when due any other Obligations, and any such failure shall continue for more
than five (5) Business Days after written notice thereof shall have been given
by MLBFS to Customer.
(b) FAILURE TO PERFORM. Customer or any Guarantor shall default in the
performance or observance of any covenant or agreement on its part to be
performed or observed under this Loan Agreement, the Term WCMA Note or any of
the other Additional Agreements (not constituting an Event of Default under any
other clause of
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this Section), and such default shall continue unremedied for ten (10) Business
Days after written notice thereof shall have been given by MLBFS to Customer.
(c) BREACH OF WARRANTY. Any representation or warranty made by Customer or any
Guarantor contained in this Loan Agreement, the Term WCMA Note or any of the
other Additional Agreements shall at any time prove to have been incorrect in
any material respect when made.
(d) DEFAULT UNDER OTHER AGREEMENT. A default or Event of Default by Customer or
any Guarantor shall occur under the terms of any other agreement, instrument or
document with or intended for the benefit of MLBFS, MLPF&S or any of their
affiliates, and any required notice shall have been given and required passage
of time shall have elapsed.
(e) BANKRUPTCY EVENT. Any Bankruptcy Event shall occur.
(f) MATERIAL IMPAIRMENT. Any event shall occur which shall reasonably cause
MLBFS to in good faith believe that the prospect of full payment or performance
by Customer or any Guarantor of any of their respective liabilities or
obligations under this Loan Agreement, the Term WCMA Note or any of the other
Additional Agreements to which Customer or such Guarantor is a party has been
materially impaired.
(g) ACCELERATION OF DEBT TO OTHER CREDITORS. Any event shall occur which
results in the acceleration of the maturity of any indebtedness of $100,000.00
or more of Customer or any Guarantor to another creditor under any indenture,
agreement, undertaking, or otherwise.
4.5 REMEDIES.
(a) REMEDIES UPON DEFAULT. Upon the occurrence and during the continuance of
any Event of Default, MLBFS may at its sole option do any one or more or all of
the following, at such time and in such order as MLBFS may in its sole
discretion choose:
(i) TERMINATION. MLBFS may without notice terminate its obligation to make the
Loan (if the Loan has not then been funded),), or fund any further amount on
account of the Term WCMA Note, or make or continue to make the WCMA Line of
Credit available to Customer, or otherwise extend any credit to or for the
benefit of Customer (it being understood, however, that upon the occurrence of
any Bankruptcy Event the WCMA Line of Credit and all such obligations shall
automatically terminate without any action on the part of MLBFS); and upon any
such termination MLBFS shall be relieved of all such obligations.
(ii) ACCELERATION. MLBFS may declare the principal of and interest on the Term
Note and WCMA Note included in the Term WCMA Note, and all other Obligations to
be forthwith due and payable, whereupon all such amounts shall be immediately
due and payable, without presentment, demand for payment, protest and notice of
protest, notice of dishonor, notice of acceleration, notice of intent to
accelerate or other notice or formality of any kind, all of which are hereby
expressly waived; provided, however, that upon the occurrence of any Bankruptcy
Event all such principal, interest and other Obligations shall automatically
become due and payable without any action on the part of MLBFS.
(b) REMEDIES ARE SEVERABLE AND CUMULATIVE. All rights and remedies of MLBFS
herein are severable and cumulative and in addition to all other rights and
remedies available in the Term WCMA Note, the other Additional Agreements, at
law or in equity, and any one or more of such rights and remedies may be
exercised simultaneously or successively.
4.6 MISCELLANEOUS.
(a) NON-WAIVER. No failure or delay on the part of MLBFS in exercising any
right, power or remedy pursuant to this Loan Agreement, the Term WCMA Note or
any of the other Additional Agreements shall operate as a waiver thereof, and
no single or partial exercise of any such right, power or remedy shall preclude
any other or further exercise thereof, or the exercise of any other right,
power or remedy. Neither any waiver of any provision of this Loan Agreement,
the Term WCMA Note or any of the other Additional Agreements, nor any consent
to any departure by Customer therefrom, shall be effective unless the same
shall be in writing and signed by MLBFS. Any waiver of any
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provision of this Loan Agreement, the Term WCMA Note or any of the other
Additional Agreements and any consent to any departure by Customer from the
terms thereof shall be effective only in the specific instance and for the
specific purpose for which given. Except as otherwise expressly provided
herein, no notice to or demand on Customer shall in any case entitle Customer
to any other or further notice or demand in similar or other circumstances.
(b) DISCLOSURE. Customer hereby irrevocably authorizes MLBFS and each of its
affiliates, including without limitation MLPF&S, to at any time (whether or not
an Event of Default shall have occurred) obtain from and disclose to each other
any and all financial and other information about Customer.
(c) COMMUNICATIONS. All notices and other communications required or permitted
hereunder or in connection with any of the Additional Agreements shall be in
writing, and shall be either delivered personally, mailed by postage prepaid
certified mail or sent by express overnight courier or by facsimile. Such
notices and communications shall be deemed to be given on the date of personal
delivery, facsimile transmission or actual delivery of certified mail, or one
Business Day after delivery to an express overnight courier. Unless otherwise
specified in a notice sent or delivered in accordance with the terms hereof,
notices and other communications in writing shall be given to the parties
hereto at their respective addresses set forth at the beginning of this Loan
Agreement, or, in the case of facsimile transmission, to the parties at their
respective regular facsimile telephone number.
(d) COSTS, EXPENSES AND TAXES. Customer shall upon demand pay or reimburse
MLBFS for: (i) all Uniform Commercial Code and other filing and search fees and
expenses incurred by MLBFS in connection with the verification, perfection or
preservation of MLBFS' rights hereunder or in any collateral for the
Obligations; (ii) any and all stamp, transfer and other taxes and fees payable
or determined to be payable in connection with the execution, delivery and/or
recording of this Loan Agreement or any of the Additional Agreements; (iii) any
and all reasonable fees and out-of-pocket expenses incurred by MLBFS in
connection with the title insurance, environmental audit, appraisal, survey and
other instruments or documents referred to in the definition of Real Property
Funding Condition; and (iv) all reasonable fees and out-of-pocket expenses
(including, but not limited to, reasonable fees and expenses of outside
counsel) incurred by MLBFS in connection with the preparation of this Loan
Agreement and any of the Additional Agreements and closing of the transactions
contemplated hereby or thereby, the collection of any sum payable hereunder or
under any of the Additional Agreements not paid when due, the enforcement of
this Loan Agreement or any of the Additional Agreements and the protection of
MLBFS' rights hereunder or thereunder, excluding, however, salaries and normal
overhead attributable to MLBFS' employees. The obligations of Customer under
this paragraph shall survive the expiration or termination of this Loan
Agreement and the discharge of the other Obligations.
(e) RIGHT TO PERFORM OBLIGATIONS. If Customer shall fail to do any act or thing
which it has covenanted to do under this Loan Agreement or any representation
or warranty on the part of Customer contained in this Loan Agreement shall be
breached, MLBFS may, in its sole discretion, after 5 Business Days written
notice is sent to Customer (or such lesser notice, including no notice, as is
reasonable under the circumstances), do the same or cause it to be done or
remedy any such breach, and may expend its funds for such purpose. Any and all
reasonable amounts so expended by MLBFS shall be repayable to MLBFS by Customer
upon demand, with interest at the Interest Rate during the period from and
including the date funds are so expended by MLBFS to the date of repayment, and
all such amounts shall be additional Obligations. The payment or performance by
MLBFS of any of Customer's obligations hereunder shall not relieve Customer of
said obligations or of the consequences of having failed to pay or perform the
same, and shall not waive or be deemed a cure of any Event of Default.
(f) LATE CHARGE. Any payment required to be made by Customer pursuant to this
Loan Agreement or any of the Additional Agreements not paid within ten (10)
days of the applicable due date shall be subject to a late charge in an amount
equal to the lesser of: (i) 5% of the overdue amount, or (ii) the maximum
amount permitted by applicable law. Such late charge shall be payable on
demand, or, without demand, may in the
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sole discretion of MLBFS be paid by a WCMA Loan and added to the WCMA Loan
Balance in the same manner as provided herein for accrued interest with respect
to the WCMA Line of Credit.
(g) FURTHER ASSURANCES. Customer agrees to do such further acts and things and
to execute and deliver to MLBFS such additional agreements, instruments and
documents as MLBFS may reasonably require or deem advisable to effectuate the
purposes of this Loan Agreement, the Term WCMA Note or any of the other
Additional Agreements.
(h) BINDING EFFECT. This Loan Agreement, the Term WCMA Note and the other
Additional Agreements shall be binding upon, and shall inure to the benefit of
MLBFS, Customer and their respective successors and assigns. Customer shall not
assign any of its rights or delegate any of its obligations under this Loan
Agreement, the Term WCMA Note or any of the other Additional Agreements without
the prior written consent of MLBFS. Unless otherwise expressly agreed to in a
writing signed by MLBFS, no such consent shall in any event relieve Customer of
any of its obligations under this Loan Agreement, the Term WCMA Note or any of
the other Additional Agreements.
(i) HEADINGS. Captions and section and paragraph headings in this Loan
Agreement are inserted only as a matter of convenience, and shall not affect
the interpretation hereof.
(j) GOVERNING LAW. This Loan Agreement, the Term WCMA Note and, unless
otherwise expressly provided therein, each of the other Additional Agreements,
shall be governed in all respects by the laws of the State of Illinois.
(k) SEVERABILITY OF PROVISIONS. Whenever possible, each provision of this Loan
Agreement, the Term WCMA Note and the other Additional Agreements shall be
interpreted in such manner as to be effective and valid under applicable law.
Any provision of this Loan Agreement, the Term WCMA Note or any of the other
Additional Agreements which is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
of this Loan Agreement, the Term WCMA Note and the other Additional Agreements
or affecting the validity or enforceability of such provision in any other
jurisdiction.
(l) TERM. This Loan Agreement shall become effective on the date accepted by
MLBFS at its office in Chicago, Illinois, and, subject to the terms hereof,
shall continue in effect so long thereafter as either MLBFS shall be obligated
to make the Loan, or, after the Closing Date, there shall be any moneys
outstanding under the Term Note or WCMA Note included in the Term WCMA Note or
under this Loan Agreement, or there shall be any other Obligations outstanding.
(m) COUNTERPARTS. This Loan Agreement may be executed in one or more
counterparts which, when taken together, constitute one and the same agreement.
(n) JURISDICTION; WAIVER. CUSTOMER ACKNOWLEDGES THAT THIS LOAN AGREEMENT IS
BEING ACCEPTED BY MLBFS IN PARTIAL CONSIDERATION OF MLBFS' RIGHT AND OPTION, IN
ITS SOLE DISCRETION, TO ENFORCE THIS LOAN AGREEMENT, THE TERM WCMA NOTE AND THE
OTHER ADDITIONAL AGREEMENTS IN EITHER THE STATE OF ILLINOIS OR IN ANY OTHER
JURISDICTION WHERE CUSTOMER OR ANY COLLATERAL FOR THE OBLIGATIONS MAY BE
LOCATED. CUSTOMER CONSENTS TO JURISDICTION IN THE STATE OF ILLINOIS AND VENUE
IN ANY STATE OR FEDERAL COURT IN THE COUNTY OF COOK FOR SUCH PURPOSES, AND
CUSTOMER WAIVES ANY AND ALL RIGHTS TO CONTEST SAID JURISDICTION AND VENUE.
CUSTOMER FURTHER WAIVES ANY RIGHTS TO COMMENCE ANY ACTION AGAINST MLBFS IN ANY
JURISDICTION EXCEPT IN THE COUNTY OF COOK AND STATE OF ILLINOIS. MLBFS AND
CUSTOMER HEREBY EACH EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST
THE OTHER PARTY WITH RESPECT TO ANY MATTER RELATING TO, ARISING OUT OF OR IN
ANY WAY CONNECTED WITH THE LOAN, THIS LOAN AGREEMENT, THE TERM WCMA NOTE, ANY
OTHER ADDITIONAL
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AGREEMENTS AND/OR ANY OF THE TRANSACTIONS WHICH ARE THE SUBJECT MATTER OF THIS
LOAN AGREEMENT.
(o) INTEGRATION. THIS LOAN AGREEMENT, TOGETHER WITH THE TERM WCMA NOTE AND THE
OTHER ADDITIONAL AGREEMENTS, CONSTITUTES THE ENTIRE UNDERSTANDING AND
REPRESENTS THE FULL AND FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF, AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR WRITTEN
AGREEMENTS OR PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. WITHOUT
LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT: (I) NO PROMISE OR
COMMITMENT HAS BEEN MADE TO IT BY MLBFS, MLPF&S OR ANY OF THEIR RESPECTIVE
EMPLOYEES, AGENTS OR REPRESENTATIVES TO MAKE THE LOAN ON ANY TERMS OTHER THAN
AS EXPRESSLY SET FORTH HEREIN AND IN THE TERM WCMA NOTE, OR TO MAKE ANY OTHER
LOAN OR OTHERWISE EXTEND ANY OTHER CREDIT TO CUSTOMER OR ANY OTHER PARTY; AND
(II) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THIS LOAN AGREEMENT
SUPERSEDES AND REPLACES ANY AND ALL PROPOSALS, LETTERS OF INTENT AND APPROVAL
AND COMMITMENT LETTERS FROM MLBFS TO CUSTOMER, NONE OF WHICH SHALL BE
CONSIDERED AN ADDITIONAL AGREEMENT. NO AMENDMENT OR MODIFICATION OF THIS
AGREEMENT OR ANY OF THE ADDITIONAL AGREEMENTS TO WHICH CUSTOMER IS A PARTY
SHALL BE EFFECTIVE UNLESS IN A WRITING SIGNED BY BOTH MLBFS AND CUSTOMER.
IN WITNESS WHEREOF, this Loan Agreement has been executed as of the day and
year first above written.
CELEBRITY, INC.
By: /s/ JAMES R. THOMPSON
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Signature (1) Signature (2)
James R. Thompson
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Printed Name Printed Name
Vice President - Finance
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Title Title
Accepted at Chicago, Illinois:
MERRILL LYNCH BUSINESS FINANCIAL
SERVICES INC.
By: /s/ BRIAN R. CONNORS
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