Exhibit 10.4(a)
FINANCING AGREEMENT
by and among
BLUE DOT SERVICES, INC.,
THE BORROWERS LISTED ON THE SIGNATURE PAGES HEREOF
and
U.S. BANK, NATIONAL ASSOCIATION
and
VARIOUS OTHER FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF
and
U.S. BANK, NATIONAL ASSOCIATION, AS AGENT
DATED AS OF AUGUST 30, 2002
TABLE OF CONTENTS
SECTION
PAGE
1.
CAPITALIZED TERMS; CONSTRUCTION.
1
1.1
DEFINED TERMS.
1
1.2
CONSTRUCTION AND INTERPRETATION.
18
2.
LOANS AND OTHER FINANCIAL ACCOMMODATIONS.
19
2.1
TOTAL FACILITY.
17
2.2
REVOLVING LOAN FACILITY.
17
2.3
LETTER OF CREDIT
FACILITY.
17
2.4
NO DEFICIENCY.
17
2.5
DISBURSEMENT OF
LOANS.
17
2.6
PROCEDURE FOR ADVANCING REVOLVING LOANS AND ISSUING
LETTERS OF CREDIT;
INTEREST RATE SELECTION MECHANICS.
17
2.7
DRAWING
UNDER LETTERS OF CREDIT TO CONSTITUTE REVOLVING LOANS.
19
2.8
NO
LIMITATION ON LIENS.
20
2.9
ADVANCE RATES AND SUBLIMITS.
20
2.10
BOOKING OF LIBOR RATE LOANS.
20
2.11
ASSUMPTIONS
CONCERNING FUNDING OF LIBOR RATE LOANS.
21
2.12
GENERAL CONDITIONS.
21
2.13
CLOSING DATE AVAILABILITY.
21
2.14
REDUCTION IN TOTAL
FACILITY.
21
3.
INTEREST CHARGES; MINIMUM LOAN CHARGE; FEES.
21
3.1
INTEREST ON LOANS.
21
3.2
INCREASED COSTS; CAPITAL ADEQUACY; ILLEGALITY; IMPRACTICABILITY.
23
3.3
CLOSING FEE.
24
3.4
LOAN ADMINISTRATION FEE.
24
3.5
UNUSED FACILITY FEE.
24
3.6
LETTER OF CREDIT FEES.
24
3.7
INTEREST RATE PROTECTION.
25
3.8
CALCULATION OF CERTAIN
CHARGES.
25
3.9
CHARGING LOAN ACCOUNT.
25
3.10
MAXIMUM
RATE.
25
4.
MONTHLY ACCOUNTINGS.
25
5.
SECURITY.
26
5.1
SECURITY AGREEMENT.
26
5.2
WAIVERS.
26
5.3
SUBORDINATION AGREEMENT.
26
6.
DELIVERIES PRIOR TO DISBURSEMENT; FURTHER ASSURANCES.
26
7.
RECEIVABLES; INVENTORY; COLLECTION OF RECEIVABLES; DISPUTED RECEIVABLES;
PROCEEDS OF INVENTORY.
26
7.1
REPRESENTATIONS AND WARRANTIES REGARDING RECEIVABLES.
27
7.2
DISPUTES AND CLAIMS REGARDING RECEIVABLES.
27
i
7.3
LOCKED BOX.
27
7.4
AGREEMENTS REGARDING INVENTORY.
28
7.5
SPECIAL ACCOUNT.
28
7.6
CREDITING OF REMITTANCES.
29
7.7
COST OF COLLECTION.
29
8.
EXAMINATION OF COLLATERAL; REPORTING.
29
8.1
MAINTENANCE OF BOOKS AND RECORDS.
29
8.2
ACCESS AND INSPECTION.
30
8.3
REPORTING REGARDING
RECEIVABLES AND INVENTORY.
30
8.4
MONTHLY FINANCIAL STATEMENTS; OTHER
REPORTS.
32
8.5
ANNUAL PROJECTIONS.
33
8.6
ANNUAL FINANCIAL
STATEMENTS.
33
8.7
MANAGEMENT REPORTS.
33
8.8
FINANCIAL
CERTIFICATE.
34
8.9
PUBLIC FILINGS.
34
8.10
ADDITIONAL
INFORMATION.
34
8.11
PROPOSED ACQUISITIONS.
34
9.
WARRANTIES AND REPRESENTATIONS.
34
9.1
ORGANIZATION, ETC.
34
9.2
DUE AUTHORIZATION, VALIDITY, ETC.
34
9.3
NO VIOLATION.
34
9.4
USE OF LOAN PROCEEDS.
35
9.5
MANAGEMENT; OWNERSHIP OF
ASSETS, LICENSES, PATENTS, ETC.
35
9.6
INDEBTEDNESS.
35
9.7
TITLE TO PROPERTY; NO LIENS.
35
9.8
RESTRICTIONS; LABOR
DISPUTES; LABOR CONTRACTS, ETC.
35
9.9
NO VIOLATION OF LAW; HAZARDOUS
MATERIALS.
36
9.10
ABSENCE OF DEFAULT.
36
9.11
ACCURACY OF
FINANCIALS; NO MATERIAL CHANGES.
37
9.12
PENSION PLANS.
37
9.13
TAXES AND OTHER CHARGES.
37
9.14
NO LITIGATION.
37
9.15
NO BROKERAGE FEE.
38
9.16
SUBSIDIARIES.
38
9.17
CAPITALIZATION; WARRANTS, ETC.
38
9.18
NONCOMPETITION
AGREEMENTS.
38
9.19
DEPOSIT AND OTHER ACCOUNTS.
38
9.20
SOLVENCY.
38
9.21
FULL DISCLOSURE.
38
9.22
CASUALTIES.
39
9.23
LEASES.
39
9.24
INSURANCE
POLICIES.
39
9.25
CONSENTS.
39