Exhibit 10.1
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CREDIT AGREEMENT
Dated as of March 2, 2000
by and between
EPL TECHNOLOGIES, INC.
as Borrower,
and
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as Lender
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of March 2, 2000, between EPL TECHNOLOGIES,
INC., a Colorado corporation ("Borrower") and ____________, individuals with a
mailing address of _______________ (the "Lender").
RECITALS
WHEREAS, the Borrower has requested that Lender make a loan to the
Borrower in the amount of $_____________; and
WHEREAS, the Lender is willing to provide such a loan, on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements set forth herein, the Borrower and Lender hereby agree as follows:
1. CERTAIN DEFINITIONS
1.1. Defined Terms. Capitalized terms used in this Agreement shall
have the following respective meanings (unless otherwise expressly provided
elsewhere herein):
"Agreement" shall mean this Credit Agreement, including all amendments,
modifications and supplements from time to time hereto and any appendices,
exhibits or schedules to any of the foregoing.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday on which commercial banks are authorized or required to be closed
for business in New York, New York.
"Closing Date" shall mean the date as of which this Agreement is executed
and delivered by the parties hereto.
"Default" shall mean any event which, with the passage of time or notice
or both, would, unless cured or waived, become an Event of Default.
"Default Rate" shall mean an interest rate per annum equal to the then
applicable rate of interest on the Loan plus 1.00% per month during which an
Event of Default continues.
"Event of Default" shall have the meaning set forth in Section 7.1.
"Governmental Authority" shall mean any governmental department,
commission, board, bureau, agency or instrumentality of the United States or of
any state, commonwealth,
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nation, territory, possession, county, parish or municipality, whether now or
hereafter constituted or existing.
"Loan Amount" shall mean the sum of $______________.
"Loan Documents" shall mean this Agreement, the Note, and the Warrant and
any other documents executed in conjunction with this Agreement.
"Person" shall mean any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
limited liability company, institution, public benefit corporation, entity,
court or Governmental Authority.
"Termination Date" shall mean March 2, 2001, or such earlier date upon
which payment of the Loan may be accelerated pursuant to Section 7.2.
2. THE LOAN
2.1 The Loan. Subject to the terms and conditions hereof, Lender
agrees to lend and the Borrower agrees to borrow the Loan Amount (the "Loan").
All Loan proceeds, shall be disbursed to the Borrower or as the Borrower may
direct in a single advance on the Closing Date. The Loan will be evidenced by a
promissory note of the Borrower, in the form annexed hereto as Exhibit A (the
"Note").
2.2. Prepayment. The Loan may be prepaid, in whole or in part, at
any time without premium or penalty.
2.3. Interest on the Loan. The aggregate outstanding principal
amount of the Loan shall bear interest at a fixed rate of ten percent (10.00%)
per annum, determined on the basis of a year of 365 days for the actual number
of days elapsed.
3. PAYMENTS AND MISCELLANEOUS CREDIT PROVISIONS
3.1. Principal and Interest Repayment. On the Termination Date, the
outstanding principal amount of the Loan and all interest on the Loan, shall be
finally due and payable in full.
3.2. Manner of Payment. All payments due or payable under this
Agreement shall be made on the date when due, in lawful money of the United
States of America and in funds immediately available, to Lender at its offices
at the mailing address listed above, or at such other address as Lender may
direct.
3.3. Actions on Non-Business Days. Whenever any payment shall be due
on a Non-Business Day, that payment or delivery may be made on the next
succeeding Business Day.
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3.4. Usury. If, at any time, the rate of interest payable on the
Loan shall be deemed by any Governmental Authority to exceed the maximum rate of
interest permitted by applicable law, then, for such time as such rate would be
deemed excessive, its application shall be suspended and there shall be charged
instead the maximum rate of interest permissible under law on the Loan.
4. WARRANT AGREEMENT
As an inducement to Lender to make the Loan, the Borrower agrees to issue
to Lender on the Closing Date a warrant to purchase _________ shares of its
common stock, par value $.001 per share.; such warrant shall be evidenced by the
form of the Warrant Agreement annexed hereto as Exhibit B.
5. CONDITIONS PRECEDENT
5.1. Conditions to Lender's Obligations under this Agreement.
Notwithstanding any other provision of this Agreement, Lender shall have no
obligations under the Agreement unless and until the Borrower shall have duly
executed and delivered to Lender the Note and Warrant Agreement, each dated as
of the Closing Date.
6. REPRESENTATIONS AND WARRANTIES OF BORROWER
To induce Lender to enter into this Agreement and to make the Loan, the
Borrower makes the following representations and warranties as to itself to
Lender:
6.1. Corporate Existence; Compliance with Law. Borrower (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the state of Colorado; (ii) has the requisite corporate power and authority
and the legal right to own, pledge, mortgage or otherwise encumber and operate
its properties, to lease the property it operates under lease, and to conduct
its business as now, heretofore and proposed to be conducted; and (iii) is in
compliance with its certificate of incorporation and by-laws.
6.2. Corporate Power; Authorization. The execution, delivery and
performance by Borrower of the Loan Documents, to the extent it is party
thereto, (i) are within Borrower's corporate power; (ii) have been duly
authorized by all necessary or proper corporate action; and (iii) are not in
contravention of any provision of Borrower's certificate of incorporation or
by-laws.
7. EVENTS OF DEFAULT; RIGHTS AND REMEDIES
7.1. Events of Default. The occurrence of any one or more of the
following events (regardless of the cause thereof) shall constitute an "Event of
Default" hereunder:
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(a) Borrower shall fail to make any payment of principal or
interest on the Loan within ten (10) Business Days of the date when due, whether
at maturity or by reason of acceleration pursuant to the terms of this Agreement
or by required prepayment; and
(b) The appointment of a receiver for, assignment for the
benefit of creditors of, or commencement of any bankruptcy or insolvency
proceeding by or against the Borrower and any such proceeding, if brought
against the Borrower, shall continue undismissed for ninety (90) days or an
order or decree approving or ordering any of the foregoing shall continue
unstated and in effect.
7.2. Consequences of Default. Upon the occurrence and continuation
of an Event of Default, (i) Lender may declare all amounts payable under the
Note to become immediately due and payable, (ii) the interest rate on the Loan
shall accrue at the Default Rate unless and until the Event of Default has been
cured, (iii) Lender shall be entitled to exercise forthwith and thereafter (to
the extent and in such order and at such time or times as Lender may elect) any
provision of this Agreement or any other Loan Document or that may otherwise be
available to Lender by law.
8. MISCELLANEOUS
8.1. Complete Agreement. The Loan Documents constitute the complete
agreement between the parties with respect to the subject matter hereof and may
not be modified, altered or amended except by an agreement in writing signed by
Borrower and Lender.
8.2 Amendments; Waiver; Consent. No amendment, modification,
termination or waiver of any provision of this Agreement or any other Loan
Document, nor consent to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by Lender.
8.3. Parties. This Agreement and the other Loan Documents shall be
binding upon, and inure to the benefit of, the successors of Borrower, and the
successors and assigns of Lender; provided, however, Borrower may not assign its
right to borrow under this Agreement.
8.4. Governing Law; Litigation. (a) Except as otherwise expressly
provided in any of the Loan Documents, in all respects, including all matters of
construction, validity and performance, this Agreement and the obligations
arising hereunder shall be governed by, and be construed and enforced in
accordance with, the laws of the Commonwealth of Pennsylvania applicable to
contracts made and performed in such state, without regard to the principles of
conflict of laws.
(b) BORROWER AND LENDER AGREE THAT, IN CONNECTION WITH ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS:
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(i) BORROWER AND LENDER EACH WAIVES THE RIGHT TO TRIAL
BY JURY;
(ii) BORROWER AND LENDER EACH CONSENTS TO THE
JURISDICTION OF ANY COURT OF THE COMMONWEALTH OF PENNSYLVANIA AND OF ANY FEDERAL
COURT LOCATED IN PENNSYLVANIA, AND EACH WAIVES ANY RIGHT TO OBJECT TO SUCH COURT
AS AN INCONVENIENT FORUM; AND
(iii) BORROWER AND LENDER EACH WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS IN CONNECTION WITH ANY SUCH ACTION OR
PROCEEDING AND AGREES THAT SERVICE THEREOF MAY BE MADE BY CERTIFIED MAIL
DIRECTED TO BORROWER AND ITS COUNSEL OR TO LENDER AT THE LOCATIONS PROVIDED FOR
NOTICES TO BORROWER AND LENDER UNDER THIS AGREEMENT OR, IN THE ALTERNATIVE, IN
ANY OTHER FORM OR MANNER PERMITTED BY LAW.
8.5. Notices. Except as otherwise specifically provided this
Agreement, whenever it is provided in this Agreement that any notice, demand,
request, consent, approval, declaration or other communication shall or may be
given to or served upon any of the parties by another, or whenever any of the
parties desires to give or serve upon another any communication with respect to
this Agreement, each such notice, demand, request, consent, approval,
declaration or other communication shall be in writing and either delivered in
person or sent by registered or certified mail, return receipt requested,
postage prepaid, or telecopied and confirmed by telecopy answer back as follows:
(a) If to Lender, at
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(b) If to the Borrower, at
EPL Technologies, Inc.
2 International Plaza, Suite 245
Philadelphia, Pennsylvania 19113-1507
Attn: Paul L. Devine, President
Telephone: 610-521-4400, Ext. 120
Telecopier: 610-521-1823
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in either case with copies to:
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
125 West 55th Street
New York, New York 10019-5369
Attention: Michael S. Leo, Esq.
Telephone: (212) 649-4700
Telecopier: (212) 333-5980
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
telecopied and confirmed by telecopy answer back or three (3) Business Days
after the same shall have been deposited in the United States mail. Failure or
delay in delivering copies of any notice, demand, request, consent, approval,
declaration or other communication to the persons designated above to receive
copies shall in no way adversely affect the effectiveness of such notice,
demand, request, consent, approval, declaration or other communication.
8.6. Section Titles. The Section titles contained in this Agreement
are used merely for convenience and shall have no substantive effect in
interpreting this Agreement.
8.7. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall, collectively and separately,
constitute one agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the date
first written above.
EPL TECHNOLOGIES, INC.
By:
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Name: Paul L. Devine
Title: President
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Exhibit A
PROMISSORY NOTE
$_________ March 2, 2000
FOR VALUE RECEIVED, EPL TECHNOLOGIES, INC., a Colorado corporation (the
"Borrower"), promises to pay to the order of __________, (collectively the
"Lender"), at the Lender's office at _______________, or at such other place as
the holder hereof may direct, in lawful money of the United States of America,
the principal amount of _____________, in accordance with the terms of that
certain Credit Agreement, dated as of the date hereof, entered into by Borrower
and Lender (as the same may be amended, modified, increased, supplemented and/or
restated from time to time, the "Loan Agreement"), and Borrower further promises
to pay interest to Lender at such office or other place, in like money, from the
date hereof on the unpaid principal amount hereof from time to time outstanding,
until the unpaid principal amount of this Note is paid in full, at the rate
stated in the Loan Agreement. All terms defined in the Loan Agreement shall have
the same meanings when used herein.
1. Repayment of this Note. The Borrower agrees to pay interest on the
unpaid principal amount outstanding hereunder from time to time from the date
hereof in like money at the Lender's office at the rate and on the dates
specified in the Loan Agreement. The outstanding principal balance of this Note,
and all interest accrued and unpaid thereon, shall be finally due and payable in
full, if not sooner paid, on the Termination Date.
2. Prepayment. The Borrower shall be entitled and required to prepay the
principal of this Note in accordance with the Loan Agreement.
3. Benefits. This Note is the note referred to in Section 2.1 of the Loan
Agreement and Lender and the holder(s) hereof are entitled to the benefits
thereof and may enforce the agreements contained therein and exercise the rights
provided for thereby or otherwise in respect thereof.
IN WITNESS WHEREOF, Borrower has executed and delivered this Note on the
day and year first above-written.
EPL TECHNOLOGIES, INC.
By:
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Name: Paul L. Devine
Title: President and CEO
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Schedule of Credit Agreements
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Name of Lender Loan Amount Number of Warrant
Shares
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Karen and Bob Ingram $1,000,000 500,000
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Don Giesenger $500,000 250,000
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Jerry Kramer $500,000 250,000
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Seidner Family Trust $500,000 250,000
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Walter Terry $400,000 200,000
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Serena and Richard McCallum $100,000 50,000
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James Rhodes $50,000 25,000
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Peter Leininger $50,000 25,000
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John Merriman $50,000 25,000
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Tom Calcagnini $25,000 12,500
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James Calcagnini $50,000 25,000
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Donald Calcagnini $25,000 12,500
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Tim Collins $25,000 12,500
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Total: $3,275,000 1,637,500
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