Janel Corp 8-K, filed Mar 5, 2020
Janel Corp (JANL)
8-K
2020-03-05
For: 2020-02-04
View Original
Added on
April 06, 2026
About this 8-K
Janel Corp filed this 8-K on March 5, 2020, reporting on events of February 4, 2020.
Items reported
- Item 1.01: Entered into a material agreement
- Item 9.01: Financial statements and exhibits
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): February 4, 2020
JANEL CORPORATION
(Exact name of registrant as specified in its charter)
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Nevada
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333-60608
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86-1005291
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.)
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80 Eighth Avenue, New York, New York 10011
(Address of Principal Executive Offices)
Registrant’s telephone number, including area code: (516) 256-8143
303 Merrick Road, Suite 400, Lynbrook, New York 11563
(Former Name or Former Address if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934
(§240.12b-2 of this chapter). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to
Section 13(a) of the Exchange Act. ☐
Securities registered pursuant to Section 12(b) of the Act:
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Title of each class
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Trading symbol
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Name of each exchange on which registered
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N/A
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N/A
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N/A
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INFORMATION TO BE INCLUDED IN THE REPORT
| Item 1.01. |
Entry into a Material Definitive Agreement.
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Indco, Inc. Manufacturing Facility
On February 4, 2020, Indco, Inc. (“Indco”), a majority-owned subsidiary of Janel Corporation (the “Company”), entered into a Purchase and Sale Agreement with 4040 Earnings Way, LLC (“Seller”)
to acquire from Seller the land and building which serves as the Indco office and manufacturing facility in New Albany, Indiana, for a purchase price of $845,000. Indco anticipates that the purchase price will be financed with cash from operations
and a loan of up to $700,000 from First Merchants Bank secured by the subject property. Closing is expected to occur in April 2020.
Santander Bank Credit Facility
On March 4, 2019, the Company and its wholly-owned subsidiaries, entered into the Third Amendment to Loan and Security
Agreement (the “Amendment”) to the Loan and Security Agreement, dated October 17, 2017 by and between the Company, certain of its subsidiaries, and Santander Bank, N.A., as amended (the “Loan Agreement”). Pursuant to, and among other
changes effected by, the Amendment: (1) the Maturity Date of the Loan evidenced by the Loan Agreement was extended to October 17, 2022; (2) the LIBOR rate margin was reduced from 2.50% to 2.25%; (3) the Collateral Monitor Fee was reduced from $1,000
per month to $500 per month; (4) the definition of EBITDA was revised to allow addback of up to $500,000 annually for merger and acquisition costs; and (5) the Company’s subsidiaries were permitted to pay up to $500,000 in aggregate dividends to the
Company for fiscal 2020 if certain conditions were met.
| Item 9.01. |
Financial Statements and Exhibits.
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Exhibits
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The following exhibits are filed herewith:
| Exhibit No. | Description | |
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Purchase and Sale Agreement dated February 4, 2020 by and between 4040 Earnings Way, LLC, and Indco, Inc.
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Third Amendment to Loan and Security Agreement dated March 4, 2020 by and between Santander Bank, N.A., Janel Group, Inc., Honor Worldwide Logistics LLC and Janel Corporation
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
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JANEL CORPORATION
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(Registrant)
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Date: March 4, 2020
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By:
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/s/ Dominique Schulte
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Dominique Schulte
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Chief Executive Officer
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Exhibit 10.1
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of February 4, 2020 (the “Effective Date”) by and between 4040 EARNINGS WAY, LLC, a Kentucky limited liability company
(“Seller”), and INDCO, INC., a Tennessee corporation (“Purchaser”).
R E C I T A L S
A. Seller is the owner of that certain parcel of land, containing approximately one and two-tenths (1.2) acres, located in Floyd County, Indiana, as shown or described on Exhibit A
attached to and made a part of this Agreement (the “Land”) and known as 4040 Earnings Way, New Albany, Indiana, together with (i) all improvements located on such parcel, (ii) any and all rights, privileges, appurtenances and easements
benefiting, belonging or pertaining to such parcel and (iii) all of Seller’s right, title and interest in and to the land lying in the bed of any street, road or highway (open or proposed) in front of, adjoining or servicing such parcel (all of the
foregoing is referred to collectively as the “Property”).
B. Purchaser desires to purchase the Property from Seller, and Seller is willing to sell the Property to Purchaser, pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth below and for other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, Seller and
Purchaser agree as follows:
| 1. |
AGREEMENT OF SALE AND PURCHASE
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Pursuant to the terms of this Agreement, Seller shall sell and convey to Purchaser, and Purchaser shall purchase and accept from Seller, the Property.
| 2. |
PURCHASE PRICE; DEPOSIT
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(a) The purchase price for the Property (the “Purchase Price”) is EIGHT HUNDRED FORTY-FIVE THOUSAND DOLLARS ($845,000), subject to adjustments as set forth below.
(b) Purchaser shall pay the Purchase Price as follows:
(i) Within three (3) business days after the Effective Date, Purchaser shall deliver Fifteen Thousand Dollars ($15,000) by check or wire transfer of immediately available federal funds to
First American Title Insurance Company (“Escrow Agent”), 211 N. Pennsylvania St., Suite 1250, Indianapolis, IN 46204, Attn: Monica Chavez, (317) 616-2213, mochavez@firstam.com, as a good faith deposit under this Agreement (the “Deposit”).
Escrow Agent shall hold, apply and disburse the Deposit in accordance with the terms of Exhibit B (the “Escrow Provisions”). Escrow Agent is joining in the execution of this Agreement solely to acknowledge its receipt of the Deposit
and its agreement to serve as escrow agent under and in accordance with the terms of this Agreement (including the Escrow Provisions); Escrow Agent’s signature to this Agreement (and any amendment) shall not be required for this Agreement (or any
amendment) to be binding on Seller and Purchaser. The Deposit shall be credited towards the Purchase Price at Settlement (defined in Section 8(a)).
(ii) At Settlement, Purchaser shall deliver the balance of the Purchase Price (i.e., the Purchase Price less the Deposit) into escrow with Escrow Agent by wire transfer of immediately
available federal funds. Upon consummation of Settlement, including due recordation of the deed conveying the Property from Seller to Purchaser, Escrow Agent shall release and deliver to Seller the Purchase Price (including the Deposit), subject
to the payment of adjustments and costs as provided in this Agreement.
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STUDY PERIOD
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(a) Purchaser shall have a period commencing on the Effective Date and expiring at 6:00 p.m. (Eastern time) on February 28, 2020 (the “Study Period”) in which to perform its due
diligence inspections, investigations, examinations, tests, studies and assessments with respect to all matters pertaining to the Property. Before the expiration of the Study Period, Purchaser shall deliver to Seller written notice of Purchaser’s
election, in its sole and absolute discretion for any reason or no reason, either (i) to proceed with the transactions contemplated by this Agreement (the “Notice to Proceed”) or (ii) to terminate this Agreement (the “Termination Notice”).
If, before the expiration of the Study Period, Purchaser delivers neither the Notice to Proceed nor the Termination Notice, then Purchaser shall be deemed to have delivered the Termination Notice as of the expiration of the Study Period. If
Purchaser delivers the Notice to Proceed, then Purchaser shall be deemed to have waived any further right to terminate this Agreement in accordance with this paragraph and this Agreement shall continue in full force and effect; if Purchaser
delivers (or is deemed to have delivered) the Termination Notice, then Escrow Agent promptly shall refund the Deposit to Purchaser, and thereafter this Agreement shall terminate and be of no further force or effect and Seller and Purchaser shall be
released from further obligation and liability under this Agreement, at law and in equity.
(b) To the extent not previously provided to Purchaser and to the extent in the possession or control of Seller or its agents, Seller shall deliver or make available to Purchaser, within
one (1) Business Day after the Effective Date, a copy of all reports, tests, studies, surveys, plats, plans, documents, materials and information relating to the Property (collectively, the “Property Materials”) at no cost to Purchaser.
Additionally, Seller shall comply promptly and in good faith with any reasonable request by Purchaser from time to time during the term of this Agreement for any updates to the Property Materials or any other information, documents or materials in
the possession or control of Seller or its property manager that reasonably pertain to the Property but were not included in the Property Materials. At Settlement, Seller shall assign to Purchaser (to the extent assignable) all of Seller’s rights
in, to and under the Property Materials at no cost to Purchaser.
(c) For so long as this Agreement is in effect, Purchaser (and its employees, contractors, agents, representatives, investors and lenders) may enter upon the Property and cause such
inspections, investigations, assessments, tests and studies (including engineering, environmental, soils, financing, economic feasibility and market analyses) with respect to the Property to be performed as Purchaser deems appropriate
(collectively, the “Studies”). The Studies shall not nullify or limit, or be deemed to diminish Purchaser’s right to rely upon the accuracy and completeness of, Seller’s representations and warranties set forth in Section 5(a).
Purchaser, at its sole expense, shall restore the Property to substantially the same condition existing immediately before the Studies. Purchaser shall indemnify and hold harmless Seller against any
liability that Seller incurs caused by Purchaser’s entry and activities upon the Property (excluding the mere discovery of any pre-existing conditions that Purchaser did not exacerbate), however Purchaser shall not be liable for any punitive,
special, indirect, consequential or incidental damages.
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| 4. |
TITLE
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At Settlement, Seller shall convey to Purchaser absolute fee simple title to the Property, free and clear of all tenancies (oral or written), judgments, liens, encumbrances, covenants, conditions,
restrictions, easements, rights-of-way, legal violations (recorded and unrecorded) and other matters affecting title to the Property, subject, however, to those matters (if any) affecting title to the Property that Purchaser accepts (the “Permitted
Exceptions”). Title to the Property shall be merchantable, good of record and in fact and insurable without exceptions (other than Permitted Exceptions) at standard rates by a recognized title insurance company that Purchaser selects. The
Permitted Exceptions shall not include any mortgage, deed of trust, other monetary lien or encumbrance capable of being cured with the payment of money and, at or before Settlement, Seller shall discharge or release the foregoing at its own
expense.
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REPRESENTATIONS AND WARRANTIES
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(a) Seller represents and warrants to Purchaser as follows:
(i) Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Kentucky and is qualified to do business in the Property’s
jurisdiction. Seller has the right, power and authority to enter into and perform its obligations under this Agreement, including conveying the Property to Purchaser, without any further action, approval, authorization or consent. This Agreement
has been, and all documents and instruments to be delivered by Seller at Settlement will be, duly authorized, executed and delivered by Seller and constitute Seller’s valid and binding obligation, enforceable against Seller in accordance with their
respective terms. Seller’s execution and delivery of, and performance of its obligations under, this Agreement will not conflict with Seller’s organizational documents, constitute a material default under any document, instrument or agreement to
which Seller is a party or Seller or the Property is bound, or violate any applicable law, regulation or court order.
(ii) No person or entity other than Purchaser has any right or option to purchase all or any of the Property or any interest in the
Property or Seller.
(iii) There is no lease, license, tenancy or occupancy or use agreement (whether written or oral) in effect with respect to the Property except the lease between Seller and Purchaser (the “Lease”).
(iv) There is no unrecorded or off-record agreement (written or oral) with any third party (including any governmental or quasi-governmental authority, citizens group or adjacent property
owner) that will bind Purchaser or the Property after Settlement.
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(v) No governmental assessment has been levied or, to Seller’s knowledge, is threatened against the Property. There is no application or proceeding for any reduction in real estate tax
assessments of the Property.
(vi) Seller has not received written notice of any, and to Seller’s knowledge there is no, violation of any (A) applicable law, statue, ordinance,
rule, regulation, code or order (including with respect to the environment or accessibility) or (B) plan, easement, covenant, condition or restriction of record affecting the Property.
(vii) No litigation or other proceeding (including with respect to zoning, annexation, condemnation or eminent domain) is pending or threatened in writing against Seller or affecting the Property. There is no judgment, order or decree against Seller or the Property that is unsatisfied of record.
(viii) The Property is zoned I-1b Light Industrial Park.
(ix) To Seller’s knowledge, no Hazardous Substances have been or currently are located upon or within the Property (except in strict compliance with applicable laws) or have been released
from the Property. “Hazardous Substances” means (A) hazardous or toxic substances, materials, wastes, contaminants or pollutants; biological, chemical, medical or industrial substances, materials, wastes, contaminants or pollutants; or
other substances that are regulated or prohibited by any federal, state or local law, statute, rule, regulation, ordinance or order addressing environmental protection, pollution control, air quality, water quality or human health or safety, (B)
asbestos, asbestos containing material and radon, (C) polychlorinated biphenyl (PCB) and (D) oil, petroleum and their byproducts.
(x) All documents, materials and information delivered or made available to Purchaser under this Agreement are accurate and complete in all material respects and do not contain any untrue
statement of a material fact or omit any material fact necessary to make such documents or information not misleading.
(xi) There is no bankruptcy, insolvency, reorganization or similar action or proceeding (whether voluntary or involuntary) pending or, to Seller’s knowledge, threatened in writing against Seller. Seller has not made an assignment for the benefit of its creditors or taken any other similar action for the protection or benefit of its creditors.
Seller has not had a receiver, conservator, liquidating agent or similar person appointed for any of its assets or suffered the attachment or other judicial seizure of all or substantially all of its
assets. Seller is not insolvent and will not be rendered insolvent by the performance of its obligations under this Agreement.
(xii) Seller is not a “foreign person” within the meaning of the Foreign Investment in Real Property Tax Act, as amended.
(xiii) Seller is not (A) a “party in interest” under Section 3(14) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) for any “employee benefit plan” or
other “plan” (as defined in ERISA §3(3)) or (B) a “disqualified person” (as defined in Internal Revenue Code §4975(e)(2)) for any “employee benefit plan” or other “plan” that has any interest in that “party in
interest”. Seller does not have, and never had, any employee.
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(xiv) Seller is not a person or entity with whom United States persons or entities are restricted or prohibited from doing business under regulations of the Office of Foreign Asset Control of
the Department of the Treasury (“OFAC”) (including those listed on OFAC’s specially designated and blocked persons list) or under any statute, regulation, executive order (including the September 24, 2001 Executive Order Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism) or other governmental action (a “Restricted Entity”), and Seller is not associated or dealing with any Restricted Entity.
(b) Purchaser represents and warrants to Seller as follows:
(i) Purchaser has the right, power and authority to enter into and perform its obligations under this Agreement without any further action, approval, authorization or consent. This
Agreement has been duly authorized, executed and delivered by Purchaser and constitutes Purchaser’s valid and binding obligation, enforceable against Purchaser in accordance with its terms. Purchaser’s execution and delivery of, and performance of
its obligations under, this Agreement will not conflict with Purchaser’s organizational documents, constitute a material default under any document, instrument or agreement to which Purchaser is a party, or violate any applicable law, regulation or
court order.
(ii) There is no action, suit, litigation or proceeding pending or, to Purchaser’s knowledge, threatened in writing against Purchaser and there is no judgment, order or decree against
Purchaser that is unsatisfied of record.
(iii) Purchaser is not a debtor in any bankruptcy or insolvency proceeding. Purchaser is not insolvent, and performing its obligations under this
Agreement will not render Purchaser insolvent.
(iv) Purchaser is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code.
(v) Purchaser is not a Restricted Entity and is not associated or dealing with any Restricted Entity.
(vi) Purchaser is not (A) a “party in interest” under Section 3(14) of ERISA for any “employee benefit plan” or other “plan” (as defined in ERISA §3(3)) or (B) a “disqualified person” (as
defined in Internal Revenue Code §4975(e)(2)) for any “employee benefit plan” or other “plan” that has any interest in that “party in interest”.
(c) All of Seller’s and Purchaser’s representations and warranties contained in this Section 5 shall be true as of the date of this Agreement and as of the time of Settlement.
| 6. |
SELLER’S COVENANTS
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Seller covenants with Purchaser that, from the Effective Date until Settlement (or sooner termination of this Agreement pursuant to its terms):
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(a) Seller shall operate, manage, maintain and repair the Property in a manner consistent in all material respects with past practice but in any event in accordance
with applicable contractual obligations, legal requirements and judicial and administrative orders and proceedings. However, without Purchaser’s prior written consent (which Purchaser may grant or withhold in its sole and absolute discretion),
Seller shall not enter into any contract that would affect the Property after Settlement. Seller shall not alter (or suffer or permit the alteration of) the Property without Purchaser’s prior written consent in each instance (which Purchaser may
grant or withhold in its sole and absolute discretion), and Seller shall not cause, permit or suffer any waste to the Property.
(b) Without Purchaser’s prior written consent (which Purchaser may grant or withhold in its sole and absolute discretion), Seller shall not take any action affecting the zoning
classification or the land use or development approvals of, or (except for actions effectuating the release of liens or encumbrances) title to, the Property or file any tax appeal or other proceeding.
(c) Seller shall maintain in force and effect the policies of property insurance (for full replacement cost) and liability insurance in effect on the Effective Date (or replacement
policies providing comparable coverages) and Seller shall comply with all of the terms of such policies.
(d) Seller immediately shall terminate all negotiations with any other parties regarding the sale of the Property (or any direct or indirect interests therein) and not market (or suffer or
permit the marketing of) the Property (or any direct or indirect interests therein) for sale, accept or consider offers for the sale of the Property (or any direct or indirect interests therein) or engage in negotiations with anyone (other than
Purchaser) that has expressed or may express an interest in acquiring the Property or any portion thereof or any direct or indirect interest therein.
(e) Seller promptly shall (i) deliver to Purchaser a copy of any written notice that Seller receives from any governmental authority, insurance company, adjacent property owner or tenant
with respect to the Property and (ii) notify Purchaser in writing of any facts coming to Seller’s attention indicating the inaccuracy of any of Seller’s representations or warranties in this Agreement.
| 7. |
CONDITIONS PRECEDENT
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(a) Purchaser’s obligation to purchase the Property shall be subject to the satisfaction of the following conditions precedent as of the time of Settlement (each, a “Condition Precedent”
and collectively the “Conditions Precedent”):
(i) Seller must have performed all of its covenants and complied with all of its obligations under this Agreement, and all of Seller’s representations and warranties in this Agreement
must be accurate and complete in all material respects, as evidenced by a certificate to such effect executed by Seller and delivered to Purchaser at Settlement. Where any of Seller’s representations and warranties are based upon Seller’s
knowledge, satisfaction of this condition requires the actual truth of the subject matter of the representation or warranty and not merely the truth of Seller’s statement as to the state of its knowledge about such subject matter.
(ii) Title must be in the condition required under Section 4 of this Agreement.
(iii) No material adverse change must have occurred since the Effective Date in the physical or environmental condition, or the development, zoning or land use status, of the Property.
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(b) If any of the Conditions Precedent is not satisfied at least ten (10) days before the Settlement date, Purchaser shall have the right, exercisable by giving written notice to Seller on
or before the Settlement date, to (i) terminate this Agreement, (ii) waive the unsatisfied Conditions Precedent and proceed to Settlement in accordance with the terms of this Agreement that have not been so waived or (iii) extend Settlement until
the earlier of fifteen (15) days after all of the Conditions Precedent are satisfied and May 1, 2020 (the “Outside Settlement Date”). If Purchaser extends under clause (iii) but all Conditions Precedent still have not been satisfied as of
the Outside Settlement Date, Purchaser shall have the right to terminate under clause (i) or waive under clause (ii). In the event of termination under this Section 7(b), Escrow Agent promptly shall return the Deposit to Purchaser and
thereafter the parties shall be relieved of all further liability under this Agreement, at law and in equity. Notwithstanding the foregoing, if any of the Conditions Precedent is not satisfied as the result of a breach or default by Seller, Seller
shall not be relieved of liability under this Agreement and Purchaser’s right to receive a refund of the Deposit shall be in addition to, and not in limitation of, Purchaser’s right to exercise any and all other rights and remedies that Purchaser
may have under applicable law for Seller’s breach or default.
| 8. |
SETTLEMENT
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(a) The consummation of the sale and purchase of the Property pursuant to this Agreement (the “Settlement”) shall be held on April 1, 2020, or such earlier date as Seller and
Purchaser may agree. Settlement shall be conducted by the delivery of documents and funds into escrow with Escrow Agent, or other title company or title agent that Purchaser selects, without the necessity of personal attendance by the parties.
(b) At Settlement, (i) Seller shall execute and deliver to Purchaser a general warranty deed, with covenants of right to convey and further assurances, in recordable form and (B) Seller
and Purchaser shall execute and deliver both a bill of sale and omnibus assignment as well as a Lease termination agreement. Upon Purchaser’s request, Seller shall (A) execute and deliver any documents, instruments, certificates and affidavits
reasonably necessary to consummate the transaction this Agreement contemplates or that Purchaser’s title insurance company requires to eliminate any standard or printed exceptions in the final policy of title insurance issued to Purchaser or its
lender or in compliance with tax reporting requirements, and (B) furnish evidence of Seller’s power and authority to consummate Settlement in accordance with this Agreement as required by Purchaser or its title insurance company.
(c) Seller shall give Purchaser possession of the Property at the time of Settlement, free and clear of all tenants, licensees and occupants.
| 9. |
ADJUSTMENTS; COSTS
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(a) All items of income and expense with respect to the ownership and operation of the Property shall be adjusted and apportioned between Seller and Purchaser as of the Settlement date. If
any such item cannot be apportioned at Settlement because information is unavailable, or is incorrectly apportioned at or after Settlement, then such item shall be estimated at Settlement and apportioned or reapportioned (as the case may be) as
soon as practicable thereafter (but in no event more than one hundred eighty (180) days after Settlement), and this obligation shall survive Settlement.
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(b) Seller shall pay the recording fee for the deed and the premium for an owner’s policy of title insurance insuring Purchaser. Purchaser shall pay any survey costs. Seller and Purchaser
each shall pay half of Escrow Agent’s fees. Each party shall pay its own attorneys’ fees.
| 10. |
DEFAULT
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If Purchaser wrongfully fails to settle on the Property as and when this Agreement requires and Seller is ready, willing and able to perform, or if Purchaser otherwise shall default under this
Agreement, then, provided that Purchaser has received written notice from Seller specifying the nature of the default and Purchaser fails to cure such default within ten (10) days after receiving such notice, Escrow
Agent shall deliver the Deposit to Seller as complete and liquidated damages and as Seller’s sole and exclusive remedy, this Agreement shall terminate and Seller and Purchaser shall be relieved of all further liability under this Agreement, at law
and in equity. Seller and Purchaser acknowledge that it would be extremely impractical and difficult to ascertain the actual damages that Seller would suffer if Purchaser fails to settle on the Property as and when required under this Agreement,
carefully considered the loss to Seller that would be occasioned by such failure, and determined that the amount of the Deposit is a fair and reasonable estimate of those damages and not a penalty. Seller expressly waives all rights of action
against Purchaser for specific performance or damages for any matter arising out of or relating to this Agreement. Any attendance or appearance at Settlement by either party shall not nullify or void this provision for payment of liquidated
damages as Seller’s sole remedy.
| 11. |
CASUALTY; CONDEMNATION
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If any or all of the Property is damaged or destroyed by fire or any other cause or condemned or taken pursuant to any governmental or other power of eminent domain (or
made the subject of any proposal, notice or proceeding in connection therewith) before Settlement, Seller promptly shall give written notice thereof to Purchaser and Purchaser may terminate this Agreement by delivering written notice to Seller
within thirty (30) days after receiving Seller’s written notice. If Purchaser so terminates this Agreement, Escrow Agent promptly shall return the Deposit to Purchaser and thereafter the parties shall be relieved of further liability under this
Agreement, at law and in equity. If Purchaser does not so terminate this Agreement, the parties shall proceed to Settlement and Seller shall assign to Purchaser all insurance proceeds and condemnation awards and (if applicable) Seller shall pay to
Purchaser any deductible under Seller’s insurance policy.
| 12. |
BROKERAGE
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Each of Seller and Purchaser represents and warrants the other that it has not dealt with any real estate broker, agent or finder in connection with the transaction contemplated by this Agreement
and that no right to or claim for commission, brokerage fee or other compensation has been created by its actions with respect to this Agreement. Seller and Purchaser shall indemnify, defend and hold
harmless each other against all loss, liability and expense (including reasonable attorneys’ fees and litigation costs) incurred by the other to the extent one or the other is shown to be in breach of the foregoing representations or warranties.
The provisions of this paragraph shall survive Settlement or any termination of this Agreement.
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| 13. |
NOTICES
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All notices and other communications under this Agreement shall be in writing and shall be deemed duly given if (a) personally delivered with delivery confirmation, (b) sent by commercial overnight
courier with delivery confirmation, (c) mailed by certified U.S. Mail, return receipt requested, postage prepaid or (d) sent by e-mail, in each case addressed as follows:
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If to Seller:
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4040 Earnings Way, LLC
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6412 Paintbrush Lane
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Louisville, KY 40059
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Attn: JT Sims, Managing Member
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jtsimsjr@gmail.com
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If to Purchaser:
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c/o Indco, Inc.
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4040 Earnings Way
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New Albany, IN 47150
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Attn: C. Mark Hennis
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Hennis@indco.com
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with a copy to:
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Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.
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1 South Street, 27th Floor
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Baltimore, MD 21202
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Attn: Hillel Tendler, Esq.
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ht@nqgrg.com
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The parties shall be responsible for notifying each other of any change of address. A notice shall be deemed received when actually received or delivery is refused. Attorneys may give notices on behalf of their
respective clients.
| 14. |
MISCELLANEOUS
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(a) The Recitals set forth above and the exhibits attached below are incorporated in and made a material part of this Agreement. This Agreement contains all (and supersedes any prior)
agreements (whether oral or written) between the parties with respect to the matters that this Agreement covers. The provisions of this Agreement are severable, and the invalidity or unenforceability of any provision
shall not affect the validity or enforceability of any other provision. This Agreement may be modified or terminated only by a written agreement duly signed by the parties.
(b) The headings in this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement. Every reference
to “including” and its variations shall be interpreted as if followed by the words “without limitation.” This Agreement represents the results of bargaining and negotiations between the parties (each of which is represented by legal counsel of its
own choosing) and a combined draftsmanship effort and therefore shall be construed without regard to any custom or rule of law requiring construction or interpretation against the party responsible for drafting this
Agreement.
9
(c) Seller shall, at any time and from time to time upon written request, promptly execute, acknowledge and deliver to Purchaser such further instruments and documents and take such other
action as Purchaser may reasonably request to effectuate the purpose and intent of this Agreement provided it does not materially increase Seller’s obligations or liabilities under this Agreement.
(d) This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Indiana (excluding choice of law principles).
(e) This Agreement may be executed in several counterparts, each of which shall be an original and all of which together shall constitute one and the same Agreement. Facsimile and PDF
signatures shall be deemed valid to the same extent as originals.
(f) Purchaser may not assign this Agreement without Seller’s prior written consent; provided, however, that Purchaser may assign this Agreement without Seller’s consent to
one or more entities directly or indirectly controlled by, or under common ownership or control with, Purchaser or its affiliates. Upon any assignment that does not require the consent of Seller as provided in this paragraph, Purchaser shall
notify Seller in writing of such assignment and the assigning party then named as Purchaser in this Agreement shall be released from further liability under this Agreement. Subject to the foregoing, this Agreement shall inure to the benefit of,
and bind, the heirs, personal representatives, successors and permitted assigns of Seller and Purchaser.
(g) Purchaser reserves the right to waive in writing any of the terms and conditions of this Agreement for the benefit of Purchaser and to purchase the Property
in accordance with the terms and conditions of this Agreement that that Purchaser does not waive.
(h) Whenever any action must be taken (including the giving of notice or the delivery of documents) under this Agreement during a certain period of time (or by a
particular date) that ends (or occurs) on a day that is not a Business Day, then such period (or date) shall be extended until the next succeeding Business Day. For the purposes of this Agreement, “Business Day” means any day other than a
Saturday, a Sunday or a legal holiday on which national banks are not open for business in the State of Indiana.
(i) If and to the extent that this Agreement is deemed to be an option contract, simultaneous with the execution of this Agreement, Purchaser has paid to Seller the sum of Ten Dollars
($10) as independent consideration (separate and apart from the Purchase Price and will in no event be returned to Purchaser) to Seller for the granting of any and all options deemed to have been granted by this Agreement.
(j) If either party desires to effectuate a like-kind exchange pursuant to Section 1031 of the Internal Revenue Code in connection with the Property, the other party shall reasonably
cooperate in structuring and consummating such like-kind exchange. The exchanging party may characterize adjustments and credits on the settlement statement in a manner so as to maximize the benefits of a 1031 transaction (e.g., in lieu of Seller
retaining prepaid rents and security deposits and providing to Purchaser a credit at Settlement for the amount of the security deposits, Purchaser may elect that prepaid rents and security deposits be transferred to Purchaser and in such event
Purchaser would not receive a credit against the Purchase Price for such amounts).
10
(k) SELLER AND PURCHASER EACH WAIVES THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ACKNOWLEDGES THAT THIS WAIVER IS MADE
KNOWINGLY, VOLUNTARILY AND AFTER CONSULTING WITH (OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH) COUNSEL OF ITS OWN CHOOSING AS TO THE MEANING OF THIS WAIVER. The party that finally prevails in any litigation between Seller and Purchaser arising
out of or related to this Agreement shall be entitled to recover its reasonable legal fees and costs in such matter from the non-prevailing party, and any judgment or decree rendered shall include an award for such expenses, fees and costs.
(l) The terms and provisions of this Agreement shall survive Settlement and execution and delivery of the deed and shall not be merged therein.
[SIGNATURE PAGE FOLLOWS]
11
IN WITNESS WHEREOF, Seller and Purchaser have executed this Purchase and Sale Agreement as of the Effective Date.
|
WITNESS:
|
SELLER:
|
|||
|
4040 EARNINGS WAY, LLC, a Kentucky
|
||||
|
limited liability company
|
||||
|
/s/ Sherry Sims
|
By:
|
/s/ JT Sims
|
|
|
| Sherry Sims |
JT Sims
|
|||
|
Managing Member
|
||||
|
PURCHASER:
|
||||
|
INDCO, INC., a Tennessee corporation
|
||||
|
/s/ Kristina Wilberding
|
By:
|
/s/ C. Mark Hennis
|
||
| Kristina Wilberding |
Name: C. Mark Hennis
|
|||
|
Title: President
|
||||
|
ESCROW AGENT:
|
|||
|
FIRST AMERICAN TITLE
|
|||
|
INSURANCE COMPANY
|
|||
|
By:
|
/s/ Andrew Eyster | ||
|
|
Name: Andrew Eyster
|
||
|
Title: Escrow Officer
|
|||
Exhibit A
Land
[insert]
Exhibit B
Escrow Provisions
1. Investment and Use of Funds. Escrow Agent shall invest the Deposit in a separate, interest-bearing bank account and shall not
commingle the Deposit with any other funds. Accrued interest on the Deposit shall be added to and become part of, and be disbursed with, the Deposit.
2. Termination. Upon termination of this Agreement, either party to this Agreement (the “Terminating Party”) may give written
notice to Escrow Agent and the other party (the “Non-Terminating Party”) of such termination and the reason for such termination. Such notice shall also contain a request for the release of the Deposit to the Terminating Party if the
Terminating Party intends to request same. The Non-Terminating Party shall have ten (10) days after its receipt of the notice in which to deliver to Escrow Agent and Terminating Party written objection to the release of the Deposit to the
Terminating Party. If the Non-Terminating Party does not timely deliver such objection, then Escrow Agent shall release the Deposit to the Terminating Party. If the Non-Terminating Party timely delivers such objection, then Escrow Agent shall
retain the Deposit until it receives written instructions executed by both Seller and Purchaser as to the disposition and disbursement of the Deposit or until a final arbitration decision or a final court order, decree or judgment determines which
party is entitled to the Deposit. Upon such event, the Deposit shall be delivered in accordance with such instruction, decision, order, decree or judgment. For the purposes of this paragraph, “final” means not subject to appeal.
3. No Right to Object to Release of Deposit. Notwithstanding anything to the contrary contained in this Exhibit, if this Agreement
terminates during the Study Period, Seller shall not have the right to object to the release of the Deposit to Purchaser, the notice and opportunity to object provided for under Paragraph 2 of this Exhibit need not be given to Seller, and Escrow
Agent shall deliver the Deposit to Purchaser promptly after receipt of written evidence from Purchaser of timely termination of this Agreement during the Study Period.
4. Interpleader. In the event of any controversy regarding the Deposit, unless Escrow Agent receives written instructions signed by
Seller and Purchaser directing the Deposit’s disposition, Escrow Agent shall not take any action, but instead shall await the disposition of any proceeding relating to the Deposit or, at Escrow Agent’s option, Escrow Agent may interplead all
parties and transfer the Deposit to a court of competent jurisdiction and then Escrow Agent shall be relieved of any responsibility for the Deposit.
5. Resignation of Escrow Agent. Escrow Agent may resign upon fifteen (15) days’ prior written notice to the parties to their addresses
set forth in this Agreement. If a successor escrow agent is not appointed by mutual consent of the parties within the fifteen (15) day period following such resignation, then Escrow Agent or any party may petition a court of competent jurisdiction
to name a successor. Seller and Purchaser shall pay the costs of such action on an equal basis.
6. Liability of Escrow Agent. The parties acknowledge that Escrow Agent is acting solely as a stakeholder
at their request and for their convenience, that Escrow Agent, when acting as such, shall not be deemed to be the agent of either of the parties, and that Escrow Agent shall not be liable to either of the parties for any action or omission on its
part taken or made in good faith and shall be liable only for its gross negligence or willful misconduct.
7. No Duty to Inquire. Escrow Agent may rely, and shall be protected in acting or refraining from acting, upon any written notice,
statement, instruction or request furnished to it under the Agreement that Escrow Agent believes in good faith to be genuine and to have been signed or presented by the proper party or parties. Escrow Agent shall be under no duty to make any
inquiry as to the form, genuineness, proper execution or accuracy of the notice, statement, instruction or request.
8. No Disqualification of Escrow Agent. Escrow Agent shall not be disqualified or otherwise limited in acting as the attorney for
Purchaser or Seller with regard to this Agreement, the Property or any other matter (including any dispute between Seller and Purchaser) by reason of Escrow Agent’s service as Escrow Agent under this Agreement or as title agent.
9. Escrow Fee. Escrow Agent shall not be entitled to any compensation for performing its services as Escrow Agent.
Exhibit 10.2
THIRD AMENDMENT TO
LOAN AND SECURITY AGREEMENT
LOAN AND SECURITY AGREEMENT
This Third Amendment to Loan and Security Agreement (the “Third Amendment”) is made as of this 4th day of March, 2020, by and among:
SANTANDER BANK, N.A., a national bank having a place of business at 28 State Street, Boston, Massachusetts 02109 (the “Lender”);
JANEL GROUP, INC., a New York corporation (“Janel”), and HONOR WORLDWIDE LOGISTICS LLC, a Texas limited liability company (“Honor WW”, and together with Janel, individually and collectively, and jointly and severally referred to herein as “Borrower”); and
JANEL CORPORATION, a Nevada corporation (“Parent”), as a Loan Party Obligor.
in consideration of the mutual covenants herein contained and benefits to be derived herefrom.
W I T N E S S E T H:
WHEREAS, Janel, the Parent, certain other Subsidiaries of the Parent, and the Lender entered into that certain Loan and Security Agreement dated as of October 17, 2017, as amended pursuant to that
certain Limited Waiver, Joinder and First Amendment to Loan and Security Agreement, dated as of March 21, 2018, and that certain Limited Waiver, Joinder and Second Amendment to Loan and Security Agreement, dated as of November 20, 2018 (together with
any further modifications, amendments, and restatements thereof, the “Agreement”);
WHEREAS, the Loan Parties have requested that the Lender modify and amend, certain terms and conditions of the Agreement; and
WHEREAS, the Lender has agreed to modify and amend, certain terms and conditions of the Agreement, all as provided for herein.
NOW, THEREFORE, it is hereby agreed among the parties hereto as follows:
|
1.
|
Capitalized Terms. All capitalized terms used herein and not otherwise defined shall have the same meaning herein as in the Agreement.
|
|
2.
|
Amendments to Agreement.
|
|
a.
|
Section 2.6 of the Agreement (LIBOR Option) is hereby amended by adding the following as a new subparagraph (f):
|
“(f) If the Lender determines (which determination shall be conclusive absent manifest error), from time to time, that (A) adequate and reasonable means do not exist for ascertaining the LIBOR Rate
and the Daily One Month LIBOR, including, without limitation, because the Reuters Screen LIBOR01 page (or any successor page) is not available or published on a current basis and such circumstances are unlikely to be temporary; or (B) the
administrator of the Reuters Screen LIBOR01 page (or any successor page) or a public statement has been made identifying a specific date after which the LIBOR Rate, the Daily One Month LIBOR or the Reuters Screen LIBOR01 page (or any successor page)
shall no longer be made available or used for determining the interest rates for loans, then the Lender may, in the exercise of its good faith discretion, designate in writing a substitute index, and modify the spread above or below such newly
designated index (which designation and modification shall be conclusive absent manifest error), in order to equate the effective interest rate of the Loans to the LIBOR Rate and the Daily One Month LIBOR based interest rate in effect immediately
prior to such designation taking effect, and such substitute index and spread shall take effect (a) for any fixed rate LIBOR Rate tranche then in effect, at the end of such LIBOR Rate tranche and (b) for any Daily One Month LIBOR Rate Loan, on the
date set forth in such designation which is at least five (5) Business Days after the date of such designation, and shall thereafter be treated as LIBOR Rate and the Daily One Month LIBOR, respectively, or all purposes of the Loan Documents.
Notwithstanding the foregoing, if the interest rate for any Interest Period or the Daily One Month LIBOR determined pursuant to the foregoing provisions is less than .75%, then the LIBOR Rate for such interest period and the Daily One Month LIBOR
shall be .75%.”
| b. |
The following is hereby added as new Section 2.9 to the Agreement:
|
“2.9 Base Rate Related Election. For purposes of Section 2.1 and Base Rate Loans, Borrower shall have the option (the “Base Rate Option”) to utilize either clause (i) or clause (ii) of the definition of Base Rate. Commencing with Third Amendment Effective Date, unless the Base Rate Option is exercised, clause
(ii) of such definition shall apply. Once exercised, the applicable clause in the definition of Base Rate shall continue to apply until the Base Rate Option is next exercised. The Base Rate Option only may be exercised by Borrower once per
calendar quarter, and the exercise of such option shall be effective on the Business Day Lender has received from Borrower a written notice evidencing its election of either of the foregoing options.”
| c. |
Schedule A (Description of Terms) is hereby amended as follows:
|
|
i.
|
Row 2(a) (Base Rate Loans) is hereby restated in its entirety as follows:
|
|
(a) Base Rate Loans:
|
Base Rate (for avoidance of doubt, the applicable margin is found in the definition of “Base Rate”).
|
| ii. |
Row 4 (Maturity Date), is hereby amended by deleting the reference to “October 17, 2020” and substituting “October 17, 2022” in its stead.
|
| d. |
Schedule B (Definitions) is hereby amended as follows:
|
-2-
|
i.
|
The definition of “Base Rate” is hereby restated in its entirety as follows:
|
““Base Rate” means, for any date of determination, the rate of interest equal to, pursuant to Section 2.9 hereof,
either (i) per annum from time to time published in the money rates section of the Wall Street Journal as the “prime rate” then in effect plus the Base Rate Margin ( provided that, if such rate of interest becomes unavailable for any reason, the “Base Rate” for purposes of this clause (i) means the rate of interest per annum announced by Santander Bank, N.A. from time to time as its
“prime rate” (such rate is a reference rate only and Santander bank, N.A. may make loans or other extensions of credit at, above or below it), and (ii) the Daily One Month LIBOR plus the LIBOR Rate Margin. Any change in the “prime rate” shall take
effect at the opening of business on the effective date of the relevant change.”
| ii. |
The definition of “Debt Service Coverage Ratio” is hereby restated in its entirety as follows:
|
““Debt Service Coverage Ratio” means, for the applicable period, for the Loan Parties and their Subsidiaries on a
consolidated basis, the ratio of (i) EBITDA minus Cash Taxes minus distributions and dividends paid minus unfinanced Capital Expenditures to (ii) CMLTD plus Interest Expense paid. Notwithstanding the foregoing subclause (i), the Specified 2020
Distributions will not be included in the total of distributions and dividends paid for purposes of (x) the calculation set forth in subclause (i) for any Covenant Compliance Period during Fiscal Year 2020, or (y) for the avoidance of doubt,
evidencing compliance with clause (b) in the definition of Specified 2020 Distributions Conditions.”
| iii. |
The definition of “Debt Service Coverage Ratio (Borrower Group)” is hereby restated in its entirety as follows:
|
‘“Debt Service Coverage Ratio (Borrower Group)” means, for the applicable period, for the Borrower and its Subsidiaries
on a consolidated basis, the ratio of (i) EBITDA minus Cash Taxes minus distributions and dividends paid minus unfinanced Capital Expenditures to (ii) CMLTD plus Interest Expense paid. Notwithstanding the foregoing subclause (i), the Specified 2020
Distributions will not be included in the total of distributions and dividends paid for purposes of (x) the calculation set forth in subclause (i) for any Covenant Compliance Period during Fiscal Year 2020, or (y) for the avoidance of doubt,
evidencing compliance with clause (b) in the definition of Specified 2020 Distributions Conditions.”
| iv. |
The definition of “EBITDA” is hereby restated in its entirety as follows:
|
-3-
““EBITDA” means, for the applicable period, as applicable pursuant to this Agreement, (1) the Parent and its
Subsidiaries on a consolidated basis, and (2) the Borrower and its Subsidiaries on a consolidated basis, the sum of (a) Net Income plus (b) Interest Expense deducted in the calculation of such Net Income plus (c) taxes on income, whether paid, payable or accrued, deducted in the calculation of such Net Income plus (d) depreciation expense deducted in the calculation of
such Net Income plus (e) amortization expense deducted in the calculation of such Net Income plus (f) to the extent not capitalized, closing costs and expenses
incurred in connection with this Agreement plus (g) stock based compensation expense that is non-cash deducted in the calculation of such Net Income; plus (g) the
M&A Addback in an amount not to exceed $500,000.”
| v. |
The definition of “LIBOR Rate Margin” is hereby restated in its entirety as follows:
|
““LIBOR Rate Margin” means 2.25%.”
| vi. |
The definition of “Permitted Dividends” is hereby restated in its entirety as follows:
|
““Permitted Dividends” means (i) dividends payable solely in capital stock or other equity interests of such Loan Party
and dividends and distributions to Borrower; (ii) dividends or distributions to Parent to permit Parent to pay federal, state and local income taxes then due and owing by Parent; and (iii) in addition to the dividends and distributions permitted by
clause (ii) above, (x) dividends or distributions by Borrower to Parent so long as the Dividend Payment Conditions are satisfied, and (y) the Specified 2020 Distributions so long as the Specified 2020 Distributions Conditions are satisfied.”
| vii. |
By inserting the following new definitions in their correct alphabetical order:
|
|
A)
|
““Base Rate Option” has the meaning set forth in Section 2.9.”
|
|
B)
|
““Daily One Month LIBOR” means, for any date of determination, the rate per annum for United States dollar deposits with a maturity of one (1) month
as reported on Reuters Screen LIBOR01 (or any successor page) at approximately 11:00 am London time on such date of determination or, if such day is not a London business day, then on the immediately preceding London business day. When
interest or any fee hereunder is determined in relation to Daily One Month LIBOR, each change in such interest rate or fee shall become effective each Business Day that Lender determines that Daily One Month LIBOR has changed.
Notwithstanding the foregoing, if the interest rate determined pursuant to the foregoing provisions is less than .75%, then the Daily One Month LIBOR shall be .75%.”
|
-4-
|
C)
|
“”M&A Addback” mean the fees and expenses actually incurred and paid by (i) Loan Parties and their Subsidiaries, and (ii) Borrower and its
Subsidiaries, respectively, in connection with acquisitions of assets or equity interests of any Person. Upon the Lender’s request, Loan Parties shall provide the Lender with reasonable documentation to evidence the foregoing.”
|
|
D)
|
“” Specified 2020 Distributions” means dividends or distributions on any Loan Party’s stock or other equity in an aggregate amount not to exceed
$500,000 for the Loan Parties’ fiscal year ending September 30, 2020.”
|
|
E)
|
“” Specified 2020 Distributions Conditions” means, at the date of determination with respect to any specified payment contemplated by Section
5.27(i), that (a) no Default or Event of Default shall exist immediately before and after giving effect to such payment, (b) the Loan Party Obligors shall be in compliance with the financial covenants set forth in Section 5.28 both before
and after (calculated on a pro forma basis after giving to such transaction), (c) Excess Availability (i) for each of the thirty (30) days immediately preceding the payment of such distribution, and (ii) immediately following such
transaction (calculated on a pro forma basis after giving effect to such transaction), is not less than $1,000,000, (d) Borrower shall have provided Lender with evidence, reasonably satisfactory to Lender, that that all accounts payable are
being paid in the ordinary course of Borrower’s business, and (e) prior to making such payment, Administrative Borrower shall certify to the Lender in writing that the foregoing conditions have and will be satisfied after the making of
such payment.”
|
|
F)
|
““Third Amendment” means that certain Third Amendment to Loan and Security Agreement dated as of the Third Amendment Effective Date by and among the
Lender and the Borrowers and the Parent.”
|
|
G)
|
““Third Amendment Effective Date” means March 4, 2020.”
|
|
e.
|
Schedule D (Fees) is hereby amended as follows:
|
|
i.
|
Subparagraph (b) (Collateral Monitoring Fee) is hereby restated in its entirety as follows:
|
“(b) Collateral Monitoring Fee. A monthly collateral monitoring fee of $500 per month until
the Termination Date (the “Collateral Monitoring Fee”), which shall be due and payable monthly in arrears on the first day of each month, commencing on March 1, 2020”.
-5-
| f. |
The Disclosure Schedule is hereby amended and restated as set forth on the Disclosure Schedule attached hereto.
|
| 3. |
Acknowledgement of Mergers of Certain Borrowers. The Loan Parties hereby warrant and represent to the Lender that prior to the Third Amendment Effective Date (i) each of (a) Global Trading
Resources, Inc., and (b) the Janel Group of Georgia Inc., have merged with Janel, with the surviving company being Janel (the “Janel Merger”) and that HWL Brokerage LLC has
merged with Honor WW, the surviving company being Honor WW (the “Honor Merger”, and together with the Janel Merger, collectively, the “Mergers”), as permitted by Section 5.27(a)(i) of the Agreement, (ii) such Mergers have been completed in compliance with all applicable laws, and (iii) the Loan Parties have provided the Lender with true and complete
copies of the documents evidencing such mergers, including such documents filed with the applicable Governmental Authorities.
|
| 4. |
Ratification of Loan Documents/Waiver. Except as provided for herein, all terms and conditions of the Agreement or the other Loan Documents remain in full force and effect. Each Loan Party Obligor
each hereby ratifies, confirms, and reaffirms all representations, warranties, and covenants contained therein and acknowledges and agrees that the Obligations, as amended hereby, are and continue to be secured by the Collateral. Each
Loan Party Obligor acknowledges and agrees that each such Loan Party Obligor does not have any offsets, defenses, or counterclaims against the Lender arising out of the Agreement or the other Loan Documents, and to the extent that any
such offsets, defenses, or counterclaims arising out of the Agreement or the other Loan Documents may exist, each such Loan Party Obligor hereby WAIVES and RELEASES the Lender therefrom.
|
| 5. |
Conditions to Effectiveness. This Third Amendment shall not be effective until each of the following conditions precedent have been fulfilled to the satisfaction of the Lender:
|
|
a.
|
This Third Amendment shall have been duly executed and delivered by the respective parties hereto and, shall be in full force and effect and shall be in form and substance satisfactory to the Lender.
|
|
b.
|
Loan Party Obligors shall have executed and delivered such documents and agreements set forth on the Closing Checklist as required by Lender.
|
|
c.
|
The Borrower shall have paid to the Lender all other fees and expenses then due and owing pursuant to the Agreement and this Third Amendment.
|
|
d.
|
No Default or Event of Default shall exist.
|
-6-
|
6.
|
Miscellaneous.
|
|
a.
|
This Third Amendment may be executed in several counterparts and by each party on a separate counterpart, each of which when so executed and delivered shall be an original, and all of which together shall
constitute one instrument.
|
|
b.
|
The provisions of Section 10.15 (Governing Law) and 10.16 (Consent to Jurisdiction; Waiver of Jury Trial) are specifically
incorporated herein by reference.
|
|
c.
|
This Third Amendment expresses the entire understanding of the parties with respect to the transactions contemplated hereby. No prior negotiations or discussions shall limit, modify, or otherwise affect the
provisions hereof.
|
|
d.
|
Any determination that any provision of this Third Amendment or any application hereof is invalid, illegal or unenforceable in any respect and in any instance shall not affect the validity, legality, or
enforceability of such provision in any other instance, or the validity, legality or enforceability of any other provisions of this Third Amendment.
|
|
e.
|
The Borrower shall pay on demand all costs and expenses of the Lender, including, without limitation, reasonable attorneys’ fees in connection with the preparation, negotiation, execution and delivery of this
Third Amendment.
|
|
f.
|
The Loan Party Obligors each warrants and represents that such Person has consulted with independent legal counsel of such Person’s selection in connection with this Third Amendment and is not relying on any
representations or warranties of the Lender or its counsel in entering into this Third Amendment.
|
[remainder of page left intentionally blank]
-7-
IN WITNESS WHEREOF, the parties have hereunto caused this Third Amendment to be executed and their seals to be hereto affixed as of the date first above written.
|
LENDER
|
||||
|
Witnessed by:
|
SANTANDER BANK, N.A.
|
|||
| /s/ Michael Jantzer |
By:
|
/s/ John P. Nuzzo
|
||
|
Print Name: Michael Jantzer
|
Name: John P. Nuzzo
|
|||
|
Its: Senior Vice President
|
||||
| /s/ Pierre Desbiens |
By:
|
/s/
|
||
|
Print Name: Pierre Desbiens
|
Name:
|
|||
|
Its:
|
||||
|
BORROWER
|
||||
|
Witnessed by:
|
JANEL GROUP, INC., a New York corporation
|
|||
| /s/ Brendan J. Killackey |
By:
|
/s/ Dominique Schulte
|
||
|
Print Name: Brendan J. Killackey
|
Name: Dominique Schulte
|
|||
|
Its: Vice President
|
||||
|
Print Name:
|
||||
|
Witnessed by:
|
HONOR WORLDWIDE LOGISTICS LLC, a Texas limited liability company
|
|||
| /s/ Brendan J. Killackey |
By:
|
/s/ Dominique Schulte
|
||
|
Print Name: Brendan J. Killackey
|
Name: Dominique Schulte
|
|||
|
Its: Vice President
|
||||
|
LOAN PARTY OBLIGOR
|
||||
|
Witnessed by:
|
JANEL CORPORATION, a Nevada corporation
|
|||
| /s/ Brendan J. Killackey |
By:
|
/s/ Dominique Schulte
|
||
|
Print Name: Brendan J. Killackey
|
Name: Dominique Schulte
|
|||
|
Its: President and CEO
|
||||
[Signature Page to Third Amendment to Loan and Security Agreement]
-8-
Disclosure Schedule
(see attached)
-9-