UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 10-K

 


 

(Mark One)

☒     ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the fiscal year ended February 28, 2019

 

OR

☐     TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from               to             .

 

Commission file number: 000-04957

 

EDUCATIONAL DEVELOPMENT CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware

73-0750007

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification No.)

 

 

5402 South 122 nd East Avenue, Tulsa, Oklahoma  

74146

(Address of principal executive offices) 

(Zip Code)

 

Registrant’s telephone number, including area code (918) 622-4522

 

Securities registered pursuant to Section 12(b) of the Act: 

 

Common Stock, $.20 par value

EDUC

NASDAQ

(Title of class)

(Trading symbol)

(Name of each exchange on which registered)

 

Securities registered pursuant to Section 12(g) of the Act: None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.

Yes ☐          No ☒

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.

Yes ☐          No ☒

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

Yes ☒          No ☐

 

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files).

 

 Yes ☒          No ☐

 

 

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (§229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company.  See definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer ☐

 

Accelerated filer ☐

 

 

 

Non-accelerated filer ☐ 

 

Smaller reporting company ☒

 

 

 

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.  ☐

 

Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act)

Yes ☐          No ☒

 

The aggregate market value of the outstanding shares of common stock held by non-affiliates of the registrant at the price at which the common stock was last sold on August 31, 2018 on the NASDAQ Stock Market, LLC was $73,291,100.

 

As of May 22, 2019, 8,175,836 shares of common stock were outstanding.

 

DOCUMENTS INCORPORATED BY REFERENCE

 

Portions of the Proxy Statement for fiscal year 2019 relating to our Annual Meeting of Shareholders to be held on July 23, 2019 are incorporated by reference into Part III of this Report on Form 10-K.

 

 

 

 

TABLE OF CONTENTS

 

FORWARD-LOOKING STATEMENTS

4

 

 

 

PART I

 

 

Item 1.

Business

4

Item 1A.

Risk Factors

5

Item 1B.

Unresolved Staff Comments

5

Item 2.

Properties

6

Item 3.

Legal Proceedings

6

Item 4.

Mine Safety Disclosures

6

 

 

 

PART II

 

 

Item 5.

Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

7

Item 6.

Selected Financial Data

7

Item 7.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

8

Item 7A.

Quantitative and Qualitative Disclosures About Market Risk

16

Item 8.

Financial Statements and Supplementary Data

17

Item 9.

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

17

Item 9A.

Controls and Procedures

17

Item 9B.

Other Information

17

 

 

 

PART III

 

 

Item 10.

Directors, Executive Officers and Corporate Governance

18

Item 11.

Executive Compensation

18

Item 12.

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

18

Item 13.

Certain Relationships and Related Transactions, and Director Independence

18

Item 14.

Principal Accounting Fees and Services

18

 

 

 

PART IV

 

 

Item 15.

Exhibits and Financial Statement Schedules

19

Item 16.

Form 10-K Summary

20

 

 

 

 

 

PART I

 

FORWARD-LOOKING STATEMENTS

 

CAUTIONARY REMARKS REGARDING FORWARD LOOKING STATEMENTS

 

The information discussed in this Annual Report on Form 10-K includes “forward-looking statements.” These forward-looking statements are identified by their use of terms and phrases such as “may,” “expect,” “estimate,” “project,” “plan,” “believe,” “intend,” “achievable,” “anticipate,” “continue,” “potential,” “should,” “could,” and similar terms and phrases.  Although we believe that the expectations reflected in these forward-looking statements are reasonable, they do involve certain assumptions, risks and uncertainties and we can give no assurance that such expectations or assumptions will be achieved.  Known and unknown risks, uncertainties and other factors may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by forward-looking statements. Factors that could cause or contribute to such differences include, but are not limited to, our success in recruiting and retaining new consultants, our ability to locate and procure desired books, our ability to ship timely, changes to our primary sales channels, our ability to obtain adequate financing for working capital and capital expenditures, economic and competitive conditions, regulatory changes and other uncertainties, as well as those factors discussed below and elsewhere in this Annual Report on Form 10-K, all of which are difficult to predict. In light of these risks, uncertainties and assumptions, the forward-looking events discussed may not occur.  All forward-looking statements attributable to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements in this paragraph and elsewhere in this Annual Report on Form 10-K and speak only as of the date of this Annual Report on Form 10-K.  Other than as required under the securities laws, we do not assume a duty to update these forward-looking statements, whether as a result of new information, subsequent events or circumstances, changes in expectations or otherwise.  As used in this Annual Report on Form 10-K, the terms “the Company,” “EDC,” “we,” “our” or “us” mean Educational Development Corporation, a Delaware corporation, unless the context indicates otherwise.

 

Item 1.    BUSINESS

 

( a)  General Description of Business

 

We are the exclusive United States trade co-publisher of educational children’s books produced in the United Kingdom by Usborne Publishing Limited (“Usborne”) and we also exclusively publish books through our ownership of Kane Miller Book Publisher (“Kane Miller”); both award-winning publishers of international children’s books.  We are a corporation incorporated under the laws of the State of Delaware on August 23, 1965. Our fiscal year ends on February 28 (29).

 

Our Company motto is “The future of our world depends on the education of our children.  EDC delivers educational excellence one book at a time.  We provide economic opportunity while fostering strong family values.  We touch the lives of children for a lifetime.”

 

(b)  Financial Information about Our Segments

 

While selling children’s books and related products (collectively referred to as “books”) is our only line of business, we sell them through two business segments, which we sometimes refer to as “divisions”:

 

 

Home Business Division (“Usborne Books & More” or “UBAM”) – This division sells our books through independent consultants directly to our customers.  Our consultants sell books by hosting home parties, through social media collaboration platforms on the internet, by hosting book fairs with school and public libraries and through other events.

 

 

Publishing Division (“EDC Publishing” or “Publishing”) – This division sells our books to bookstores (including major national chains), toy stores, specialty stores, museums and other retail outlets throughout the country.

 

Percent Net Revenues by Division

 

   

FY 2019

   

FY 2018

 

UBAM

    91

%

    93

%

Publishing

    9

%

    7

%

Total net revenues

    100

%

    100

%

 

 

(c)  Narrative Description of Business

 

Products

 

As the exclusive United States trade co-publisher of the Usborne books and sole publisher of Kane Miller books, we offer over 2,000 different children’s books.  Many of our books are interactive in nature, including our Touchy-Feely board books, activity and flashcards, adventure and search books, art books, sticker books and foreign language books.  Most of our books were originally published in other countries, in their native languages, and we translate them to common American English and have exclusive rights to publish the titles in the United States.

 

 We have a broad line of ‘internet-linked’ books which allow readers to expand their educational experience by referring them to relevant non-Company websites.  Our books include science and math titles, as well as chapter books and novels.  We continually introduce new titles across all lines of our products.

 

UBAM markets the books through commissioned consultants using a combination of direct sales, home parties, book fairs and internet based social media party plans.  The division had approximately 31,800 active consultants at February 28, 2019.

 

Our Publishing division markets through commissioned trade representatives who call on retail book, toy, and specialty stores along with other retail outlets. Publishing also conducts in-house marketing by telephone to these customers and potential customers.  This division markets to approximately 4,000 book, toy and specialty stores. Approximately 14% of our Publishing division's net sales, are to national chain stores.

 

Seasonality

 

Sales for both divisions are greatest during the fall due to the holiday season.

 

Competition

 

While we have the exclusive U.S. rights to sell Usborne Books and our Kane Miller published books, we face competition from the internet and other book publishers who are also selling directly to our customers.  Our UBAM division competes in recruiting and retaining sales consultants, which continuously receive opportunities to work for larger direct selling companies, as well as new non-traditional employment opportunities in the gig-marketplace that provide part time supplemental income. We also compete with Scholastic Books in the school and library book fair market.

 

Our Publishing division faces competition from large U.S. and international publishing companies.

 

Employees

 

As of May 22, 2019, 178 full-time employees worked at our Tulsa office and distribution facility and at our San Diego office.  Of these employees, approximately 63% of our employees work in our distribution warehouse. 

 

Company Reports

 

We make available, free of charge, on our website (www.edcpub.com) copies of our Annual Reports, Quarterly Reports, Current Reports on Form 8-K, amendments to those reports filed or furnished to the Securities and Exchange Commission (“SEC”) pursuant to Section 13(a) or 15(d) of the Exchange Act and reports of holdings of our securities filed by our officers and directors under Section 16 of the Exchange Act as soon as reasonably practicable after filing such material electronically or otherwise furnishing it to the SEC.

 

Item 1A.   RISK FACTORS

 

We are a smaller reporting company and are not required to provide this information.

 

Item 1B.   UNRESOLVED STAFF COMMENTS

 

None

 

 

Item 2.   PROPERTIES

 

Our headquarters office and distribution warehouse are located on a 40-acre complex at 5402 S 122 nd East Ave, Tulsa, Oklahoma. We own the complex which includes multiple buildings that combine to approximately 400,000 square feet of office and warehouse space, of which 218,700 is utilized by us and 181,300 is occupied by a third-party tenant.  All product distributions are made from our 170,000 square foot warehouse using multiple flow-rack systems, known as “the lines,” to expedite order fulfillment, packaging, and shipment. 

 

We also own a facility located at 10302 E. 55th Pl., Tulsa, Oklahoma that contains approximately 95,000 square feet of warehouse space which is used to store our overflow inventory, along with approximately 10,000 square feet of office space. Currently, 8,000 square feet is leased to a third-party tenant with 3,000 square feet being usable office area and 5,000 square feet is usable warehouse area.

 

In addition to these owned properties, we also lease a small office in San Diego, California that is used to by our Kane Miller employees.  We believe that our operating facilities meet both present and future capacity needs.

 

Item 3.   LEGAL PROCEEDINGS

 

We are not a party to any material pending legal proceedings.

 

Item 4.   MINE SAFETY DISCLOSURES

 

None

 

 

PART II

 

Item 5.   MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

 

The common stock of EDC is traded on NASDAQ (symbol “EDUC”).  The number of shareholders of record of EDC's common stock as of May 22, 2019 was 493.

 

For information regarding our compensation plans see Note 9 of the notes to the financial statements and our definitive Proxy Statement to be filed in connection with the Annual Meeting of Shareholders to be held on July 23, 2019, as outlined in  Part III, Item 12 in this Annual Report.

 

Issuer Purchases of Equity Securities

 

Period

 

Total # of Shares Purchased

   

Average Price Paid Per Share

   

Total # of Shares Purchased as Part of Publicly Announced Plan (1) ( 2 )

   

Maximum # of Shares that may be Repurchased Under the Plan (2)

 

December 1 - 31, 2018

    15,149     $ 10.43       -       574,980  

January 1-31, 2019

    -       -       -       574,980  

February 1-3, 2019

    -       -       -       574,980  

February 4, 2019 Share Repurchase Plan Approved (2)

                            800,000  

February 4-28, 2019

    8,366       7.93       8,366       791,634  

Total

    23,515     $ 9.54       8,366       791,634  

 

(1)

In April 2008, the Board of Directors authorized us to purchase up to 1,000,000 additional shares of our common stock under a plan initiated in 1998. 

 

(2)

On February 4, 2019 the Board of Directors approved a new stock repurchase plan, replacing the former 2008 stock repurchase plan. The maximum number of shares which can be purchased under the new plan is 800,000. This plan has no expiration date.

 

On February 4, 2019 our Board of Directors approved a new share repurchase program authorizing the Company to purchase up to 800,000 shares, representing approximately 10% of the Company’s outstanding common stock. This new plan replaces the existing stock purchase plan which was originally approved by our Board of Directors in 1998, and later amended to include an additional share amount in 2008 (“amended 2008 plan”). In addition to share repurchases made by the Company under the amended 2008 and 2019 plans, throughout the year we made several small purchases of shares from employees electing to withdraw from our 401(k) plan.  The ability to repurchase shares was also subject to certain restrictions outlined in the ninth amendment to our Loan Agreement with our primary lender.

 

Item 6.   SELECTED FINANCIAL DATA

 

We are a smaller reporting company and are not required to provide this information.

 

 

Item 7.    MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

This Management’s Discussion and Analysis of Financial Condition and Results of Operations contains a discussion of our business, including a general overview of our segments, our results of operations, our liquidity and capital resources, and our quantitative and qualitative disclosures about market risk.

 

The following discussion contains forward-looking statements that reflect our future plans, estimates, beliefs and expected performance.  The forward-looking statements are dependent upon events, risks and uncertainties that may be outside our control.  Our actual results could differ materially from those discussed in these forward-looking statements.  See “Cautionary Remarks Regarding Forward-Looking Statements” in the front of this Annual Report on Form 10-K.

 

Management Summary

 

We are the exclusive United States trade co-publisher of Usborne children’s books and the owner of Kane Miller.  We operate two separate segments; UBAM and Publishing, to sell our Usborne and Kane Miller children’s books.  These two segments each have their own customer base.  The Publishing segment markets its products on a wholesale basis to various retail accounts.  The UBAM segment markets its products through a network of independent sales consultants using a combination of home shows, internet party plan events and book fairs.  All other supporting administrative activities are recognized as other expenses outside of our two segments.  Other expenses are primarily compensation of our office, warehouse and sales support staff as well as the cost of operating and maintaining our corporate office and distribution facility.

 

UBAM Division

 

Our UBAM division uses a multi-level direct selling platform to market books through independent sales representatives (“consultants”) located throughout the United States.  The customer base of UBAM consists of individual purchasers, as well as schools and public libraries.  Revenues are primarily generated through book showings in individual homes, on social media collaboration platforms, by book fairs with school and public libraries and other events.  This past fiscal year continued a significant shift toward internet sales via social media platforms, such as Facebook.

 

An important factor in the continued growth of the UBAM division is the addition of new sales consultants and the retention of existing consultants.  Current active consultants (defined as those with sales during the past six months) often recruit new sales consultants.  UBAM makes it easy to recruit by providing sign-up kits for which new consultants can earn partial or full reimbursement based on established sales criteria. In addition, our UBAM division provides our consultants with an extensive operational handbook, valuable training and an individual website that they can customize and use to operate their business.

 

Consultants

 

   

FY 2019

   

FY 2018

 

New Consultants During Fiscal Year

    21,500       32,400  

Active Consultants End of Fiscal Year

    31,800       35,500  

 

Our UBAM division’s multi-level marketing platform presently has seven levels of sales representatives:

 

 

Consultants

 

 

Team Leaders

 

 

Senior Team Leaders

 

 

Executive Team Leaders

 

 

Senior Executive Team Leaders

 

 

Directors

 

 

Senior Directors

 

 

Upon signing up, sales representatives begin as consultants.  Consultants receive commissions from each sale they make; the commission rate they receive on each sale is determined by the marketing program under which the sale is made.  In addition, consultants receive a monthly sales bonus once their sales reach an established monthly goal.  Consultants who recruit other consultants and meet certain established criteria are eligible to become team leaders.  Upon reaching this level, they receive monthly override payments based upon the sales of their downline groups.

 

Once team leaders reach certain established criteria, they become senior team leaders and are eligible to earn promotion bonuses on their downline groups.  Once senior team leaders reach certain established criteria, they become executive team leaders, senior executive team leaders, directors or senior directors.  Executive team leaders and higher receive an additional monthly override payment based upon the sales of their downline groups.

 

During fiscal year 2019, we continued to have strong growth in our internet sales within our UBAM division.  The use of social media and party plan platforms, such as those available on Facebook, have become popular sales tools.  These platforms allow consultants to “present” and customers to “attend” online purchasing events from any location.

 

Customer’s internet orders are primarily received via the consultant’s customized website, which is hosted by the Company.  Internet orders are processed through an online standard “shopping cart checkout” and the consultant receives sales credit and commission on the transaction.  All internet orders are shipped directly to the end customer. 

 

Home parties occur when consultants contact hosts or hostesses (collectively “hostess”) to hold book shows in their homes.  The consultant assists the hostess in setting up the details for the show, makes a presentation at the show and takes orders for the books.  The hostess earns discounted books based on the total sales at the party, including online internet orders for those customers that can only attend via online access.  Home party orders are typically shipped to the hostess who then distributes the books to the end customer.  Customer specials are also available for customers when they or their party order above a specified amount.  Additionally, home shows often provide an excellent opportunity for recruiting new consultants.

 

The school and library program include book fairs which are held with an organization as the sponsor.  The consultant provides promotional materials to introduce our books to parents.  Parents turn in their orders at a designated time.  The book fair program generates free books for the sponsoring organization.  UBAM also has a Reach for the Stars fundraiser program.  This pledge-based reading incentive program provides cash and books to the sponsoring organization and books for the participating children.

 

An additional fundraising program, Cards for a Cause , offers our consultants the opportunity to help members of the community by sharing proceeds from the sale of specific items.  Organizations sell variety boxes of greeting-type cards and donate a portion of the proceeds to help support their related causes.

 

Publishing Division

 

Our Publishing division operates in a market that is highly competitive, with a large number of companies engaged in the selling of books.  The Publishing division’s customer base includes national book chains, regional and local bookstores, toy and gift stores, school supply stores and museums.  To reach these markets, the Publishing division utilizes a combination of commissioned sales representatives located throughout the country and a commissioned inside sales group located at our headquarters.

 

The table below shows the percentage of net revenues from our Publishing division based on market type.

 

Publishing Division Net Revenues by Market Type

 

   

FY 2019

   

FY 2018

 

National chain stores

    14

%

    8

%

All other

    86

%

    92

%

Total net revenues

    100

%

    100

%

 

Publishing uses a variety of methods to attract potential new customers and maintain current customers.  Our employees attend many of the national trade shows held by the book selling industry each year, allowing us to contact potential buyers who may be unfamiliar with our books.  We actively target the national book chains through joint promotional efforts and institutional advertising in trade publications.   Our products are then featured in promotions, such as catalogs offered by the vendor.  We may also acquire, for a fee, an end cap position (our products are placed on the end of a shelf) in a bookstore, which we and the publishing industry consider an advantageous location in the bookstore.

 

 

Publishing’s in-house sales group targets the smaller independent book and gift store market.  Our semi-annual, full-color, 170-page catalogs, are mailed to over 4,000 customers and potential customers.  We also offer two display racks to assist stores in displaying our products.

 

(1) Result of Operations

 

The following table shows our statements of earnings data:

 

   

Twelve Months Ended February 28,

 
   

2019

   

2018

 

Net revenues

  $ 118,811,300     $ 111,984,600  

Cost of goods sold

    39,063,600       35,824,300  

Gross margin

    79,747,700       76,160,300  
                 

Operating expenses

               

Operating and selling

    18,550,600       17,694,700  

Sales commissions

    36,480,400       35,359,000  

General and administrative

    16,164,300       15,736,300  

Total operating expenses

    71,195,300       68,790,000  
                 

Other (income) expense

               

Interest expense

    931,300       1,119,500  

Other income

    (1,559,700

)

    (1,581,900

)

Earnings before income taxes

    9,180,800       7,832,700  
                 

Income taxes

    2,502,400       2,618,000  

Net earnings

  $ 6,678,400     $ 5,214,700  

 

See the detailed discussion of revenues, costs of goods sold, gross margin, general and administrative expenses by reportable segment below. The following is a discussion of significant changes in the non-segment related general and administrative expenses, other income and expenses and income taxes during the respective periods.

 

Non-Segment Operating Results for the Twelve Months Ended February 28, 2019

 

Operating expenses not associated with a reporting segment were $13.6 million for fiscal year ended February 28, 2019 compared to $13.9 million for the same period a year ago.  Operating expenses decreased $0.3 million primarily as a result of savings in warehouse labor associated with our increased daily shipping capacity totaling $0.5 million, reduced bank fees of $0.1 million, due to improved pricing agreements, and $0.1 million of other reduced costs, partially offset by $0.4 million of expenses associated with the Company’s newly implemented Long-Term Incentive Plan. We installed new automation equipment and made software enhancements during the fiscal year which increased our daily shipping capacity and reduced the amount of labor involved in our warehouse processes.

 

Interest expense totaled $0.9 million for the twelve months ended February 28, 2019, a decrease of $0.2 million over the $1.1 million of interest expense reported for the same period a year ago.  Interest expense decreased during the current fiscal year due primarily to decreased borrowings on the line of credit during the current year.

 

Income taxes decreased $0.1 million to $2.5 million for the twelve months ended February 28, 2019, from $2.6 million for the same period a year ago.  This decrease was primarily related to a decrease in effective tax rates between the years.  Our effective tax rate, including federal, state and franchise taxes, was 27.3% for fiscal 2019 and 33.4% for fiscal 2018.  The decrease in the tax rate from fiscal 2018 to fiscal 2019 resulted from our reduced federal tax rate included with the passage of the Tax Cuts and Jobs Act of 2017, which is disclosed further in the footnotes to our financial statements.

 

 

UBAM Operating Results

 

The following table summarizes the operating results of the UBAM segment for the twelve months ended February 28:

 

   

Twelve Months Ended February 28,

 
   

2019

   

2018

 

Gross sales

  $ 135,792,500     $ 121,364,700  

Less discounts and allowances

    (38,072,600

)

    (28,657,900

)

Transportation revenue

    10,661,400       11,010,300  

Net revenues

    108,381,300       103,717,100  
                 

Cost of goods sold

    33,602,100       31,132,800  

Gross margin

    74,779,200       72,584,300  
                 

Operating expenses

               

Operating and selling

    15,242,100       14,509,500  

Sales commissions

    36,122,100       35,043,200  

General and administrative

    4,164,900       3,602,000  

Total operating expenses

    55,529,100       53,154,700  
                 

Operating income

  $ 19,250,100     $ 19,429,600  
                 

Average number of active consultants

    32,000       30,900  

 

Net revenues increased $4.7 million, or 4.5%, to $108.4 million for the fiscal year ended February 28, 2019, when compared with net revenues of $103.7 million reported for fiscal year ending February 28, 2018.  The increase in UBAM net revenues is primarily attributed to the 3.6% increase in the average number of active consultants during fiscal year 2019, over the same period a year ago.  The increase in the average number of consultants resulted in increased book fairs, fundraiser events and home shows, that all contributed to the growth in UBAM.  UBAM also includes sales to schools and libraries through educational consultants. In the fourth quarter of fiscal 2018, we launched a new School and Library Certification Program (“ESL Program”) that requires our consultants to meet certain eligibility requirements including attending web-based training and certification along with an annual background check.  This new program was developed to address the safety concerns associated with our consultants entering schools, as well as, to increase the quality and consistency of their presentations to schools and libraries.  We expect this new program to have positive results in upcoming years.

 

Gross margin increased $2.2 million to $74.8 million for the fiscal year ended February 28, 2019, from $72.6 million reported for fiscal year ending February 28, 2018.  The increase in gross margin primarily resulted from the increase in sales.  Gross margin as a percentage of net revenues, decreased to 69.0% for the fiscal year 2019, compared to 70.0% reported the same period a year ago.  Our gross margin was higher in fiscal 2018 due primarily to a change in the mix of order types. Certain order types have larger discounts and result in lower gross margin, such as Cards for a Cause Fundraisers and Book Fair orders. These order types also result in reduced sales commissions paid to the consultants.

 

Total UBAM operating expenses increased $2.3 million, or 4.3%, to $55.5 million during the fiscal year ending February 28, 2019, when compared with $53.2 million reported for fiscal year ending February 28, 2018.  Operating expenses increased primarily as a result of increased sales commissions and increased freight costs associated with the increase in net revenues.

 

Operating income of our UBAM division remained consistent totaling $19.3 million for fiscal year ending February 28, 2019, as compared to $19.4 million reported for fiscal year ending February 28, 2018.

 

 

Publishing Operating Results

 

The following table summarizes the operating results of the Publishing segment for the twelve months ended February 28:

 

   

Twelve Months Ended February 28,

 
   

2019

   

2018

 

Gross sales

  $ 22,077,600     $ 17,675,700  

Less discounts and allowances

    (11,681,400

)

    (9,445,600

)

Transportation revenue

    33,800       37,400  

Net revenues

    10,430,000       8,267,500  
                 

Cost of goods sold

    5,461,500       4,691,500  

Gross margin

    4,968,500       3,576,000  
                 

Total operating expenses

    2,082,700       1,812,800  
                 

Operating income

  $ 2,885,800     $ 1,763,200  

 

Our Publishing division’s net revenues increased $2.1 million, or 25.3%, to $10.4 million for the fiscal year ended February 28, 2019, when compared with net revenues of $8.3 million reported for fiscal year ended February 28, 2018.  This increase primarily resulted from the increase in sales order volumes with our largest retail customers in fiscal year ending February 28, 2019. Sales orders increased this year primarily due to new in-store promotions that did not occur in the prior fiscal year.  We have historically been awarded one or more in-store promotions with our largest customer on an annual basis.

 

Sales in our Publishing segment are seasonal and our fiscal fourth and first quarters are traditionally lower than the second and third quarters.

 

Gross margin increased $1.4 million to $5.0 million for the fiscal year ended February 28, 2019, from $3.6 million reported for fiscal year ended February 28, 2018.  The increase in gross margin primarily resulted from the increase in sales.  Gross margin as a percentage of net revenues, increased to 47.6% for the fiscal year 2019, compared to 43.3% reported the same period a year ago.  Our gross margin percentage increased as we had an increase in sales with our largest accounts, which have lower discounts, along with a decrease in cost of sales, as a percentage of gross sales due to a change in product mix.

 

Operating income for the segment increased $1.1 million, to $2.9 million, for fiscal year ended February 28, 2019 from $1.8 million reported during the same period last year.  The increase in operating income resulted primarily from the increase in sales and gross margin.

 

(2-3) Liquidity and Capital Resources

 

EDC has a history of profitability and positive cash flow.  We typically fund our operations from the cash we generate.  We also use available cash primarily to purchase additional inventory, to pay down our outstanding bank loan balances, for capital expenditures, to pay dividends and to acquire treasury stock.  During fiscal year 2019, we expanded our product lines and increased our inventory purchases which raised our year-end inventory balances.  At fiscal year-end 2019, our revolving bank credit facility loan balance was $0 with $12,439,300 in available capacity.

 

During fiscal year 2019, we generated positive cash flows from our operations of $3.9 million.  These cash flows resulted from net earnings, adjusted for depreciation expense, and an increase in accounts payable totaling $10.5 million offset by an increase in inventory of $7.1 million among other balance sheet changes netting positive operating cash flows of $0.5 million. Inventory increased during the fiscal year primarily due to the addition of new Spanish titles totaling approximately $1.3 million, increases in stock of approximately $3.0 million due to lower than expected sales in the last six months of the fiscal year, along with $2.5 million of additional Usborne stock received in the fiscal fourth quarter to meet volume discount thresholds. The early receipt of inventory was primarily offset by the increase in trade payables. Our cash flows from operations included:

 

●          net earnings of $6,678,400

●          depreciation expense of $1,455,800

●          an increase in accounts payable of $2,399,100

●          deferred income tax expense of $735,700

 

 

●          an increase in accrued salaries and commissions and other liabilities of $694,000

●          share-based compensation expense of $401,800

●          an increase in deferred revenues of $272,600

●          the provision for inventory valuation allowance of $140,700

●          the provision for doubtful accounts of $74,100

 

Offset by:

 

●          an increase in inventories of $7,106,800

●          a decrease in income tax payable of $1,042,400

●          an increase in accounts receivable of $419,100

●          an increase in prepaid expenses and other assets of $337,100

 

Cash used in investing activities was $1.4 million for capital expenditures.  Our capital expenditures were primarily associated with automation enhancements made to our existing pick, pack and ship lines to increase our daily shipping capacity and reduce our warehouse labor.

 

Our capital expenditures included:

 

●          Warehouse equipment of $1,333,300

●          Warehouse management software system of $26,000

●          Computer equipment and related items of $21,800

●          Other improvements and equipment additions of $18,300

 

Cash used in financing activities was $2.1 million, which was primarily from payment of dividends totaling $1.2 million and payments on our long-term debt of $0.9 million.  We also received $0.3 million from the sale of treasury stock associated with employee purchases through payroll withholdings and employer matching contributions to their 401(k) accounts, offset by $0.3 million paid to acquire treasury stock.

 

We continue to expect the cash generated from our operations and cash available through our line of credit with our Bank will provide us the ability to meet our future liquidity requirements.  Cash generated from operations will be used to increase inventory by expanding our product lines, to liquidate existing debt, and any excess cash is expected to be distributed to our shareholders.

 

We have a Loan Agreement with MidFirst Bank (“the Bank”) including Term Loan #1 comprised of Tranche A of $13.4 million and Tranche B of $5.0 million both with the maturity date of December 1, 2025.   Tranche A has a fixed interest rate of 4.23% and interest is payable monthly.   The Loan Agreement also includes Term Loan #2 in the amount of $4.0 million, which is secured by a warehouse and land with the maturity date of June 28, 2021, and a $15.0 million revolving loan (“line of credit”) through August 15, 2019.

 

Effective June 15, 2017, the Company executed the Fifth Amendment Loan Agreement with the Bank which modified the Loan Agreement to increase the maximum revolving principal amount from $7.0 million to $10.0 million and extended the termination date of the Loan Agreement to June 15, 2018.  The Fifth Amendment also modified the Loan Agreement to include an Advancing Term Loan of $3.0 million which the Company used to cover the cost of the fiscal 2018 capital improvements to increase our daily shipping capacity.  The Advancing Term loan accrued interest between June 15 and December 1, 2017, at which time the balance was converted to a term loan and set to amortize over a thirty-six-month period. This loan was paid off early in fiscal year ended February 28, 2018, using cash flow generated from operations.

 

Effective September 1, 2017, we signed a Sixth Amendment Loan Agreement with the Bank which further increased the maximum revolving principal amount from $10.0 million to $15.0 million, subject to certain collateral restrictions.

 

Effective February 15, 2018, we signed a Seventh Amendment Loan Agreement with the Bank which modified the limitation on dividends as well as modified and removed other financial covenant calculations.

 

 

On June 15, 2018, the Company executed the Eighth Amendment Loan Agreement with the Bank which extended the termination date until August 15, 2019, reduced the interest rate pricing grid for all floating rate borrowings covered by the Loan Agreement, established a new $3,000,000 advancing term loan to be used for capital expansions to increase daily shipping capacity, released the personal guaranty of Randall W. White and Carol White, along with other covenant restrictions being lessened. The amendment also included an adjustment to the Adjusted Funded Debt to EBITDA ratio for covenant compliance.

 

On February 7, 2019, the Company executed the Ninth Amendment Loan Agreement which removed the covenant prohibiting the Company from repurchasing its shares and identified certain limitations on the amount of funds that the Company could use to repurchase shares.

 

We had no borrowings outstanding on our revolving credit agreement at February 28, 2019 and 2018.  Available credit under the revolving credit agreement was $12,439,300 and $9,424,000 at February 28, 2019 and 2018, respectively.

 

Tranche B of Term Loan #1, Term Loan #2 and the line of credit accrue interest monthly, at the bank adjusted LIBOR Index plus a tiered pricing rate based on the Company’s Adjusted Funded Debt to EBITDA Ratio (4.99% at February 28, 2019).

 

The Loan Agreement also contains a provision for our use of the Bank’s letters of credit. The Bank agrees to issue, or obtain issuance of commercial or stand-by letters of credit provided that the sum of the line of credit plus the letters of credit issued would not exceed the borrowing base in effect at the time. For the year ended February 28, 2019, we had no letters of credit outstanding.  The agreement contains provisions that require us to maintain specified financial ratios, restrict transactions with related parties, prohibit mergers or consolidation, disallow additional debt, and limit the amounts of dividends declared, investments, capital expenditures, leasing transactions, and establish a dollar limit on the amount of shares that can be repurchased.

 

The following table reflects aggregate future maturities of long-term debt during the next five fiscal years and thereafter as follows:

 

Year ending February 28 (29),

 

2020

  $ 945,900  

2021

    988,600  

2022

    1,038,100  

2023

    1,087,600  

2024

    1,139,500  

Thereafter

    14,576,900  
    $ 19,776,600  

 

In September 2002, the Board of Directors authorized a minimum annual cash dividend of 20% of net earnings.  On February 16, 2017, we announced that we were suspending dividends to focus all resources and cash requirements toward financing future growth.   In May 2018, the Board of Directors of the Company approved the reinstatement of dividends.

 

In April 2008, our Board of Directors amended our 1998 stock repurchase plan, establishing that we may purchase up to an additional 1,000,000 shares as market conditions warrant.  In February 2019, our Board of Directors approved a new stock repurchase plan to replace the amended 2008 plan. Under the new 2019 plan, the Company is authorized to purchase up to 800,000 shares of common stock, representing approximately 10% of the outstanding shares as of February 28, 2019. When management expects the stock is undervalued and when stock becomes available at an attractive price, we can utilize free cash flow to repurchase shares. Management believes this enhances the value to the remaining shareholders and that these repurchases will have no adverse effect on our short-term and long-term liquidity.

 

Contractual Obligations

 

We are a smaller reporting company and are not required to provide this information.

 

 

Critical Accounting Policies

 

Our discussion and analysis of our financial condition and results of operations are based upon our financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States.  The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and related disclosures of contingent assets and liabilities.  On an on-going basis, we evaluate our estimates, including those related to our valuation of inventory, allowance for uncollectible accounts receivable, allowance for sales returns, long-lived assets and deferred income taxes.  We base our estimates on historical experience and on various other assumptions that are believed to be reasonable under the circumstances, the results of which form the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources.

 

Actual results may materially differ from these estimates under different assumptions or conditions.  Historically, however, actual results have not differed materially from those determined using required estimates. Our significant accounting policies are described in the notes accompanying the financial statements included elsewhere in this report.  However, we consider the following accounting policies to be more significantly dependent on the use of estimates and assumptions.

 

Stock-Based Compensation

 

We account for stock-based compensation whereby share-based payment transactions with employees, such as stock options and restricted stock, are measured at estimated fair value at the date of grant.  For awards subject to service conditions, compensation expense is recognized over the vesting period on a straight-line basis.  Awards subject to performance conditions are attributed separately for each vesting tranche of the award and are recognized ratably from the service inception date to the vesting date for each tranche.  Forfeitures are recognized when they occur.

 

The restricted share awards granted under the 2019 Long-Term Incentive Plan (“2019 LTI Plan”) contain both service and performance conditions. The Company recognizes share compensation expense only for the portion of the restricted share awards that are considered probable of vesting.  Shares are considered granted, and the service inception date begins, when a mutual understanding of the key terms and conditions between the Company and the employees have been established.  The fair value of these awards is determined based on the closing price of the shares on the grant date. The probability of restricted share awards granted with future performance conditions is evaluated at each reporting period and compensation expense is adjusted based on the probability assessment.    

 

For certain awards that provide discretion to adjust the allocation of the restricted shares, the service-inception date for such awards could precede the grant date as a mutual understanding of the key terms and conditions between the Company and the employees has not yet been established.  For awards in which the service-inception date precedes the grant date, compensation cost is accrued beginning on the service-inception date.  The Company estimates the award's fair value on each subsequent reporting date, until the grant date, based on the closing market price of the Company’s common stock.  On the grant date, the award's fair value is fixed, subject to the remaining performance conditions, and the cumulative amount of previously recognized compensation expense is adjusted to the fair value at the grant date. During fiscal year 2019, the Company recognized $0.4 million of compensation expense associated with the shares granted.

 

Revenue Recognition

 

Sales associated with product orders are recognized and recorded when products are shipped.  Products are shipped FOB shipping point. UBAM’s sales are generally paid at the time the product is ordered.  Sales which have been paid for but not shipped are classified as deferred revenue on the balance sheet.  Sales associated with consignment inventory are recognized when reported and payment associated with the sale has been remitted.  Transportation revenue represents the amount billed to the customer for shipping the product and is recorded when the product is shipped.

 

Estimated allowances for sales returns are recorded as sales are recognized.  Management uses a moving average calculation to estimate the allowance for sales returns.  We are not responsible for product damaged in transit.  Damaged returns are primarily received from the retail stores of our Publishing Division.  Those damages occur in the stores, not in shipping to the stores, and we typically do not offer credit for damaged returns.  It is industry practice to accept non-damaged returns from retail customers.  Management has estimated and included a reserve for sales returns of $0.2 million and $0.2 million for the fiscal years ended February 28, 2019 and 2018, respectively.

 

 

Allowance for Doubtful Accounts

 

We maintain an allowance for estimated losses resulting from the inability of our customers to make required payments and a reserve for vendor share markdowns (collectively “allowance for doubtful accounts”).  An estimate of uncollectible amounts is made by management based upon historical bad debts, current customer receivable balances, age of customer receivable balances, customers’ financial conditions and current economic trends.  Management has estimated an allowance for doubtful accounts of $0.3 million and $0.3 million as of February 28, 2019 and 2018, respectively. Included within this allowance is $0.1 million of reserve for vendor discounts to sell remaining inventory as of February 28, 2019 and 2018.

 

Inventory

 

Our inventory contains over 2,000 titles, each with different rates of sale depending upon the nature and popularity of the title.  Almost all of our product line is saleable as the books are not topical in nature and remain current in content today as well as in the future.  Most of our products are printed in Europe, China, Singapore, India, Malaysia and Dubai resulting in a four to six-month lead-time to have a title printed and delivered to us.

 

Certain inventory is maintained in a noncurrent classification.  Management continually estimates and calculates the amount of noncurrent inventory.  Noncurrent inventory arises due to occasional purchases of titles in quantities in excess of what will be sold within the normal operating cycle, due to minimum order requirements of our suppliers.  Noncurrent inventory was estimated by management using the current year turnover ratio by title.  All inventory in excess of 2 ½ years of anticipated sales is classified as noncurrent inventory.  Noncurrent inventory balances prior to valuation allowances were $0.9 million and $0.7 million at February 28, 2019 and 2018, respectively.

 

Consultants that meet certain eligibility requirements may request and receive inventory on consignment.  We believe allowing our consultants to have consignment inventory greatly increases their ability to be successful in making effective presentations at home shows, book fairs and other events; and having consignment inventory leads to additional sales opportunities.  Approximately 11% of our active consultants maintained consignment inventory at the end of the fiscal year.  Consignment inventory is stated at cost, less an estimated reserve for consignment inventory that is not expected to be sold or returned to the Company. The total cost of inventory on consignment with consultants was $1.5 million and $1.1 million at February 28, 2019 and 2018, respectively. 

 

Inventories are presented net of a valuation allowance, which includes reserves for inventory obsolescence and reserves for consigned inventory that is not expected to be sold or returned to the Company. Management estimates the inventory obsolescence allowance for both current and noncurrent inventory, which is based on management’s identification of slow-moving inventory.  Management has estimated a valuation allowance for both current and noncurrent inventory, including the reserve for consigned inventory, of $0.4 million and $0.7 million as of February 28, 2019 and 2018, respectively.

 

Our principal supplier, based in England, generally requires a minimum re-order of 6,500 or more of a title in order to get a solo print run.  Smaller orders would require a shared print run with the supplier’s other customers, which can result in lengthy delays to receive the ordered title.  Anticipating customer preferences and purchasing habits requires historical analysis of similar titles in the same series. We then place the initial order or re-order based upon this analysis. These factors and historical analysis have led our management to determine that 2 ½ years represents a reasonable estimate of the normal operating cycle for our products.

 

New Accounting Pronouncements

 

See the New Accounting Pronouncements section of Note 1 to our financial statements, included in Part IV, Item 15 of this report, for further details of recent accounting pronouncements.

 

Item 7A.   QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

We are a smaller reporting company and are not required to provide this information.

 

 

Item 8.    FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

The information required by Item 8 begins at page 22.

 

Item 9.   CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

 

None

 

Item 9A.    CONTROLS AND PROCEDURES

 

An evaluation was performed of the effectiveness of the design and operation of our disclosure controls and procedures pursuant to Exchange Act Rule 13a-15(a) as of February 28, 2019. This evaluation was conducted under the supervision and with the participation of our management, including our Chief Executive Officer (Principal Executive Officer) and our Chief Financial Officer and Corporate Secretary (Principal Financial and Accounting Officer).

 

Based on that evaluation, these officers concluded that our disclosure controls and procedures were effective to ensure that information required to be disclosed in reports that we file or submit under the Securities Exchange Act of 1934 (the “Exchange Act”) is accumulated and communicated to them, as appropriate, to allow timely decisions regarding required disclosure and is recorded, processed, summarized and reported in accordance within the time periods specified in SEC rules and forms.  It should be noted that the design of any system of controls is based in part upon certain assumptions about the likelihood of future events.

 

During the fourth quarter of the fiscal year covered by this report on Form 10-K, there have been no changes in our internal control over financial reporting that have materially affected or are reasonably likely to materially affect, our internal control over financial reporting.

 

MANAGEMENT'S REPORT ON INTERNAL CONTROL OVER FINANCIAL REPORTING

 

Our management is responsible for establishing and maintaining adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) of the Exchange Act. Under the supervision and with the participation of our management, including our Chief Executive Officer and our Chief Financial Officer, we evaluated the effectiveness of our internal control over financial reporting based on the framework in Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission in 1992. All internal control systems, no matter how well designed, have inherent limitations. Therefore, even those systems determined to be effective can provide only reasonable assurance with respect to financial statement preparation and presentation. Projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate. Based on our evaluation under that framework and applicable SEC rules, our management concluded that our internal control over financial reporting was effective as of February 28, 2019.  The original framework was updated with the issuance of the 2013 Internal Control Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission.  Our management has not yet implemented the 2013 framework, but is expecting to implement this framework in the upcoming fiscal year.

 

This annual report does not include an attestation report of our registered public accounting firm regarding internal control over financial reporting. Management's report was not subject to attestation by our registered public accounting firm pursuant to rules of the SEC that permit us to provide only management's report in this annual report.

 

Item 9B.   OTHER INFORMATION

 

None

 

 

PART III

 

Item 10.    DIRECTORS , EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

 

(a)  Identification of Directors

 

The information required by this Item 10 is furnished by incorporation by reference to the information under the caption "Election of Directors" in our definitive Proxy Statement to be filed in connection with the Annual Meeting of Shareholders to be held on July 23, 2019.

 

(b)  Identification of Executive Officers

 

The information required by this Item 10 is furnished by incorporation by reference to the information under the caption "Executive Officers of the Registrant" in our definitive Proxy Statement to be filed in connection with the Annual Meeting of Shareholders to be held on July 23, 2019.

 

(c)  Compliance with Section 16 (a) of the Exchange Act

 

The information required by this Item 10 is furnished by incorporation by reference to the information under the caption "Section 16 (a) Beneficial Ownership Reporting Compliance” in our definitive Proxy Statement to be filed in connection with the Annual Meeting of Shareholders to be held on July 23, 2019.

 

Item 11.    EXECUTIVE COMPENSATION

 

The information required by this Item 11 is furnished by incorporation by reference to the information under the caption "Executive Compensation" in our definitive Proxy Statement to be filed in connection with the Annual Meeting of Shareholders to be held on July 23, 2019.

 

Item 12.   SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

 

The information required by this Item 12 is furnished by incorporation by reference to the information under the captions "Security Ownership of Certain Beneficial Owners and Management" and "Compensation Plans" in our definitive Proxy Statement to be filed in connection with the Annual Meeting of Shareholders to be held on July 23, 2019.

 

Item 13.    CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS , AND DIRECTOR INDEPENDENCE

 

None

 

Item 14.    PRINCIPAL ACCOUNT ING FEES AND SERVICES

 

The information required by this Item 14 is furnished by incorporation by reference to the information under the caption "Independent Registered Public Accountants" in our definitive Proxy Statement to be filed in connection with the Annual Meeting of Shareholders to be held on July 23, 2019.

 

 

 

PART IV

 

Item 15.    EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

 

(a)  The following documents are filed as part of this report:

 

1.  Financial Statements          

 

 

Page

 

 

Report of Independent Registered Public Accounting Firm

22

 

 

Balance Sheets as of February 28, 2019 and 2018

23

 

 

Statements of Earnings for the Years ended February 28, 2019 and 2018

24

 

 

Statements of Shareholders' Equity for the Years ended February 28, 2019 and 2018

25

 

 

Statements of Cash Flows for the Years ended February 28, 2019 and 2018

 26

 

 

Notes to Financial Statements

27-40

 

Schedules have been omitted as such information is either not required or is included in the financial statements.

 

2.  Exhibits

 

*3.1

 

Restated Certificate of Incorporation dated April 26, 1968 and Certificate of Amendment thereto dated June 21, 1968 are incorporated herein by reference to Exhibit 1 to Registration Statement on Form 10-K (File No. 0-04957).

 

 

 

*3.2

 

Certificate of Amendment of Restated Certificate of Incorporation dated August 27, 1977 is incorporated herein by reference to Exhibit 20.1 to Form 10-K for fiscal year ended February 28, 1981 (File No. 0-04957).

 

 

 

*3.3

 

By-Laws, as amended, are incorporated herein by reference to Exhibit 20.2. to Form 10-K for fiscal year ended February 28, 1981 (File No. 0-04957).

 

 

 

*3.4

 

Certificate of Amendment of Restated Certificate of Incorporation dated November 17, 1986 is incorporated herein by reference to Exhibit 3.3 to Form 10-K for fiscal year ended February 28, 1987 (File No. 0-04957).

 

 

 

3.5

 

Certificate of Amendment of Restated Certificate of Incorporation dated March 22, 1996 is incorporated herein by reference to Exhibit 3.4 to Form 10-K for fiscal year ended February 28, 1997 (File No. 0-04957).

 

 

 

3.6

 

Certificate of Amendment of Restated Certificate of Incorporation dated July 15, 2002 is incorporated herein by reference to Exhibit 10.30 to Form 10-K dated February 28, 2003 (File No. 0-04957).

 

 

 

3.7

 

Certificate of Amendment of Restated Certificate of Incorporation dated August 15, 2018 is incorporated herein by reference to Exhibit 3.1 to Form 8-K dated August 21, 2018 (File No. 0-04957).

 

 

 

*4.1

 

Specimens of Common Stock Certificates are incorporated herein by reference to Exhibits 3.1 and 3.2 to Registration Statement on Form 10-K (File No. 0-04957) filed June 29, 1970.

 

 

 

*10.1

 

Usborne Agreement-Contractual agreement by and between the Company and Usborne Publishing Limited dated November 25, 1988 is incorporated herein by reference to Exhibit 10.12 to Form 10-K dated February 28, 1989 (File No. 0-04957).

 

 

 

*10.2

 

Party Plan-Contractual agreement by and between the Company and Usborne Publishing Limited dated March 14, 1989 is incorporated herein by reference to Exhibit 10.13 to Form 10-K dated February 28, 1989 (File No. 0-04957).

 

 

 

*10.3

 

Amendment dated January 1, 1992 to Usborne Agreement - Contractual agreement by and between the Company and Usborne Publishing Limited is incorporated herein by reference to Exhibit 10.13 to Form 10-K dated February 29, 1992 (File No. 0-04957).

 

 

10.4

 

Educational Development Corporation 2002 Incentive Stock Option Plan is incorporated herein by reference to Exhibit A to definitive proxy statement on Schedule 14A dated May 23, 2002 (File No. 0-04957).

 

 

 

10.5

 

Amendment dated November 12, 2002 to Usborne Agreement – Contractual agreement by and between us and Usborne Publishing Limited is incorporated herein by reference to Exhibit 10.32 to Form 10-K dated February 28, 2003 (File No. 0-04957).

 

 

 

10.6

 

Employment Agreement between Randall W. White and the Company dated February 28, 2004 incorporated herein by reference to Exhibit 10.8 to Form 10-K dated February 28, 2005 (File No. 0-04957).

 

 

 

**10.7

 

Loan Agreement dated December 1, 2015 by and between the Company and MidFirst Bank, Tulsa, OK

 

 

 

**10.8

 

Purchase and Sale Agreement dated December 1, 2015 by and between the Company and Hilti, Inc., Tulsa, OK

 

 

 

**10.9

 

Lease Agreement dated December 1, 2015 by and between the Company and Hilti, Inc., Tulsa, OK

 

 

 

**10.10

 

First Amendment Loan Agreement dated March 10, 2016 by and between the Company and MidFirst Bank, Tulsa, OK

 

 

 

**10.11

 

Second Amendment Loan Agreement dated June 15, 2016 by and between the Company and MidFirst Bank, Tulsa, OK

 

 

 

**10.12

 

Third Amendment Loan Agreement dated June 28, 2016 by and between the Company and MidFirst Bank, Tulsa, OK

 

 

 

**10.13

 

Fourth Amendment Loan Agreement dated February 7, 2017 by and between the Company and MidFirst Bank, Tulsa, OK

 

 

 

10.14

 

Fifth Amendment Loan Agreement dated June 12, 2017 by and between the Company and MidFirst Bank, Tulsa, OK incorporated herein by reference to Exhibit 10.01 to Form 8-K dated June 15, 2017 (File No. 0-04957).

 

 

 

10.15

 

Sixth Amendment Loan Agreement dated September 1, 2017 by and between the Company and MidFirst Bank, Tulsa, OK incorporated herein by reference to Exhibit 10.01 to Form 8-K dated September 7, 2017 (File No. 0-04957).

 

 

 

10.16

 

Seventh Amendment Loan Agreement dated February 16, 2018 by and between the Company and MidFirst Bank, Tulsa, OK incorporated herein by reference to Exhibit 10.01 to Form 8-K dated February 22, 2018 (File No. 0-04957).

 

 

 

10.17

 

Eighth Amendment Loan Agreement dated June 15, 2018 by and between the Company and MidFirst Bank, Tulsa, OK incorporated herein by reference to Exhibit 10.01 to Form 8-K dated June 21, 2018 (File No. 0-04957).

 

 

 

10.18

 

Ninth Amendment Loan Agreement dated February 7, 2019 by and between the Company and MidFirst Bank, Tulsa, OK incorporated herein by reference to Exhibit 10.01 to Form 8-K dated February 8, 2019 (File No. 0-04957).

 

 

 

**23.1

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

**31.1

 

Certification of the Chief Executive Officer of Educational Development Corporation pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

 

 

**31.2

 

Certification of the Chief Financial Officer and Corporate Secretary (Principal Financial and Accounting Officer) of Educational Development Corporation pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

 

 

 

**32.1

 

Certification pursuant to 18 U.S.C Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.


*Paper Filed

**Filed Herewith

 

Item 16.    FORM 10-K SUMMARY

 

Not applicable

 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Company has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

EDUCATIONAL DEVELOPMENT CORPORATION

 

Date:

May 29, 2019

By 

    /s/ Dan E. O’Keefe

 

 

 

 

Dan E. O’Keefe

 

 

 

 

Chief Financial Officer and Corporate Secretary

 

 

 

 

(Principal Financial and Accounting Officer)

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the date indicated.

 

Date:

May 29, 2019

 

    /s/ Randall W. White

 

 

 

 

Randall W. White

 

 

 

 

Chairman of the Board, President and Director

 

 

 

 

(Principal Executive Officer)

 

 

 

 

 

 

 

 

 

 

 

 

May 29, 2019

 

    /s/ John A. Clerico

 

 

 

 

John A. Clerico, Director

 

 

 

 

 

 

 

 

 

 

 

 

May 29, 2019

 

    /s/ Ronald McDaniel

 

 

 

 

Ronald McDaniel, Director

 

 

 

 

 

 

 

 

 

 

 

 

May 29, 2019

 

    /s/ Dr. Kara Gae Neal

 

 

 

 

Dr. Kara Gae Neal, Director

 

 

 

 

 

 

 

 

 

 

 

 

May 29, 2019

 

    /s/ Betsy Richert

 

 

 

 

Betsy Richert, Director

 

 

 

 

 

 

 

 

 

 

 

 

May 29, 2019

 

    /s/ Dan E. O’Keefe

 

 

 

 

Dan E. O’Keefe

 

 

 

 

Chief Financial Officer and Corporate Secretary

 

 

 

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Shareholders and the Board of Directors of Educational Development Corporation

 

Opinion on the Financial Statements

 

We have audited the accompanying balance sheets of Educational Development Corporation (the Company) as of February 28, 2018 and 2017, and the related statements of earnings, shareholders' equity and cash flows for the years then ended, and the related notes to the financial statements (collectively, the financial statements). In our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of February 28, 2018 and 2017, and the results of its operations and its cash flows for the years then ended in conformity with accounting principles generally accepted in the United States of America.

 

Basis for Opinion

 

These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

 

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company's internal control over financial reporting. Accordingly, we express no such opinion.

 

Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.

 

 

/s/ HOGANTAYLOR LLP

 

We have served as the Company's auditor since 2005.

 

Tulsa, Oklahoma

May 29, 2019

 

 

EDUCATIONAL DEVELOPMENT CORPORATION

BALANCE SHEETS

AS OF FEBRUARY 28,


 

 

 

2019

   

2018

 
ASSETS                

CURRENT ASSETS:

               

Cash and cash equivalents

  $ 3,199,300     $ 2,723,300  

Accounts receivable, less allowance for doubtful accounts of $268,600 (2019) and $297,100 (2018)

    3,258,800       2,913,700  

Inventories - Net

    33,445,600       26,618,600  

Prepaid expenses and other assets

    1,603,500       1,259,000  

 Total current assets

    41,507,200       33,514,600  
                 

INVENTORIES - Net

    575,000       435,900  
                 

PROPERTY, PLANT AND EQUIPMENT - Net

    27,164,600       27,860,500  
                 

OTHER ASSETS

    19,500       26,900  
                 

TOTAL ASSETS

  $ 69,266,300     $ 61,837,900  
                 

LIABILITIES AND SHAREHOLDERS' EQUITY

               

CURRENT LIABILITIES:

               

Accounts payable

  $ 14,228,600     $ 12,469,000  

Deferred revenues

    965,600       693,000  

Current maturities of long-term debt

    945,900       881,200  

Accrued salaries and commissions

    2,039,000       2,007,900  

Income taxes payable

    756,400       1,798,800  

Dividends payable

    410,100       -  

Other current liabilities

    4,177,900       3,517,900  

 Total current liabilities

    23,523,500       21,367,800  
                 

LONG-TERM DEBT - Net of current maturities

    18,830,700       19,825,100  

DEFERRED INCOME TAXES - Net

    872,600       136,900  

OTHER LONG-TERM LIABILITIES

    109,000       106,000  

 Total liabilities

    43,335,800       41,435,800  
                 

COMMITMENTS (Note 7)

               
                 

SHAREHOLDERS' EQUITY:

               

Common stock, $0.20 par value; Authorized 16,000,000 shares;

Issued 12,092,080 shares;

Outstanding 8,195,082 (2019) and 8,179,612 (2018) shares

    2,418,400       2,418,400  

Capital in excess of par value

    8,975,100       8,573,300  

Retained earnings

    25,754,900       20,714,500  
      37,148,400       31,706,200  

Less treasury stock, at cost

    (11,217,900

)

    (11,304,100

)

Total shareholders' equity

    25,930,500       20,402,100  

TOTAL LIABILITIES AND SHAREHOLDERS' EQUITY

  $ 69,266,300     $ 61,837,900  

 

See notes to financial statements.

 

 

EDUCATIONAL DEVELOPMENT CORPORATION

STATEMENTS OF EARNINGS

FOR THE YEARS ENDED FEBRUARY 28,


 

   

2019

   

2018

 

GROSS SALES

  $ 157,870,100     $ 139,040,400  

Less discounts and allowances

    (49,754,000

)

    (38,103,500

)

Transportation revenue

    10,695,200       11,047,700  

NET REVENUES

    118,811,300       111,984,600  

COST OF GOODS SOLD

    39,063,600       35,824,300  

Gross margin

    79,747,700       76,160,300  
                 

OPERATING EXPENSES:

               

Operating and selling

    18,550,600       17,694,700  

Sales commissions

    36,480,400       35,359,000  

General and administrative

    16,164,300       15,736,300  

Total operating expenses

    71,195,300       68,790,000  
                 

INTEREST EXPENSE

    931,300       1,119,500  

OTHER INCOME

    (1,559,700

)

    (1,581,900

)

                 

EARNINGS BEFORE INCOME TAXES

    9,180,800       7,832,700  
                 

INCOME TAXES

    2,502,400       2,618,000  

NET EARNINGS

  $ 6,678,400     $ 5,214,700  
                 

BASIC AND DILUTED EARNINGS PER SHARE:

               

Basic

  $ 0.82     $ 0.64  

Diluted

  $ 0.81     $ 0.64  
                 

WEIGHTED AVERAGE NUMBER OF COMMON

AND EQUIVALENT SHARES OUTSTANDING:

               

Basic

    8,189,149       8,175,996  

Diluted

    8,196,628       8,181,322  

Dividends declared per share

  $ 0.20     $ -  

 

See notes to financial statements.

 

 

EDUCATIONAL DEVELOPMENT CORPORATION

STATEMENTS OF SHAREHOLDERS’ EQUITY

AS OF FEBRUARY 28,


 

   

Common Stock

(par value $0.20 per share)

                   

Treasury Stock

         
   

Number of  Shares  Issued

   

Amount

   

Capital in Excess of

Par Value

   

Retained

Earnings

   

Number of

Shares

   

Amount

   

Shareholders'

Equity

 

BALANCE - February 28, 2017

    12,082,080     $ 2,416,400     $ 8,549,000     $ 15,499,800       3,901,932     $ (11,247,800

)

  $ 15,217,400  

Exercise of stock options

    10,000       2,000       24,300       -       -       -       26,300  

Purchases of treasury stock

    -       -       -       -       20,138       (98,400

)

    (98,400

)

Sales of treasury stock

    -       -       -       -       (9,602

)

    42,100       42,100  

Net earnings

    -       -       -       5,214,700       -       -       5,214,700  

BALANCE - February 28, 2018

    12,092,080     $ 2,418,400     $ 8,573,300     $ 20,714,500       3,912,468     $ (11,304,100

)

  $ 20,402,100  

Purchases of treasury stock

    -       -       -       -       25,171       (256,500

)

    (256,500

)

Sales of treasury stock

    -       -       -       -       (40,641

)

    342,700       342,700  

Dividends paid ($0.15/share)

    -       -       -       (1,227,900

)

    -       -       (1,227,900

)

Dividends declared ($0.05/share)

    -       -       -       (410,100

)

    -       -       (410,100

)

Share-based compensation expense (see Note 9 to the financial statements)

    -       -       401,800       -       -       -       401,800  

Net earnings

    -       -       -       6,678,400       -       -       6,678,400  

BALANCE - February 28, 2019

    12,092,080     $ 2,418,400     $ 8,975,100     $ 25,754,900       3,896,998     $ (11,217,900

)

  $ 25,930,500  

 

See notes to financial statements.

 

 

EDUCATIONAL DEVELOPMENT CORPORATION

STATEMENTS OF CASH FLOWS

FOR THE YEARS ENDED FEBRUARY 28,


 

   

2019

   

2018

 

CASH FLOWS FROM OPERATING ACTIVITIES:

               

Net earnings

  $ 6,678,400     $ 5,214,700  

Adjustments to reconcile net earnings to net cash

provided by operating activities:

               

Depreciation

    1,455,800       1,251,000  

Deferred income taxes, net

    735,700       264,900  

Provision for doubtful accounts

    74,100       510,900  

Provision for inventory valuation allowance

    140,700       311,800  

Share-based compensation expense

    401,800       -  

Changes in assets and liabilities:

               

Accounts receivable

    (419,100

)

    (407,700

)

Inventories, net

    (7,106,800

)

    7,079,000  

Prepaid expenses and other assets

    (337,100

)

    (412,300

)

Accounts payable

    2,399,100       (5,096,300

)

Accrued salaries and commissions, and other liabilities

    694,000       177,400  

Deferred revenues

    272,600       59,900  

Income taxes payable

    (1,042,400

)

    279,400  

Total adjustments

    (2,731,600

)

    4,018,000  

Net cash provided by operating activities

    3,946,800       9,232,700  

CASH FLOWS FROM INVESTING ACTIVITIES:

               

Purchases of property, plant and equipment

    (1,399,400

)

    (1,437,700

)

Net cash used in investing activities

    (1,399,400

)

    (1,437,700

)

CASH FLOWS FROM FINANCING ACTIVITIES:

               

Payments on long-term debt

    (929,700

)

    (1,877,000

)

Proceeds from long-term debt

    -       1,019,000  

Cash received from sale of treasury stock

    342,700       42,100  

Cash used to purchase treasury stock

    (256,500

)

    (98,400

)

Cash proceeds from issuance of stock options

    -       26,300  

Net payments on line of credit

    -       (4,882,900

)

Dividends paid

    (1,227,900

)

    -  

Net cash used in financing activities

    (2,071,400

)

    (5,770,900

)

NET INCREASE IN CASH AND CASH EQUIVALENTS

    476,000       2,024,100  

CASH AND CASH EQUIVALENTS - BEGINNING OF PERIOD

    2,723,300       699,200  

CASH AND CASH EQUIVALENTS - END OF PERIOD

  $ 3,199,300     $ 2,723,300  
                 

SUPPLEMENTAL DISCLOSURE OF CASH FLOWS INFORMATION:

               

Cash paid for interest

  $ 926,900     $ 1,116,500  

Cash paid for income taxes

  $ 2,874,300     $ 2,073,600  
                 

NON-CASH TRANSACTIONS:

               

Accrued capital expenditures

  $ -     $ 639,500  

 

See notes to financial statements.

 

 

EDUCATIONAL DEVELOPMENT CORPORATION

NOTES TO FINANCIAL STATEMENTS

YEARS ENDED FEBRUARY 28, 2019 AND 2018


 

1.         SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

Nature of Business Educational Development Corporation (“we,” “our,” “us,” or “the Company”) distributes books and publications through our Usborne Books & More (“UBAM”) and EDC Publishing (“Publishing”) divisions to individual consumers, book, toy and gift stores, libraries and home educators located throughout the United States (“U.S.”).  We are the exclusive U.S. trade co-publisher of books and related items, published by Usborne Publishing Limited (“Usborne”), an England-based publishing company, our largest supplier.  We also publish books and related items through our ownership of Kane Miller Book Publisher (“Kane Miller”).

 

Stock Split On July 24, 2018, our Board of Directors authorized a two-for-one stock split in the form of a stock dividend. The stock dividend was distributed on August 22, 2018 to shareholders of record as of August 14, 2018. All share-based data, including the number of shares outstanding, have been retroactively adjusted to reflect the stock split for all periods presented.

 

Estimates Our financial statements were prepared in conformity with generally accepted accounting principles in the United States of America, which requires management to make estimates and assumptions that affect the amounts and disclosures in the financial statements.  Actual results could differ from these estimates.

 

Reclassifications Certain reclassifications have been made to the fiscal 2018 balance sheet, statement of earnings, statement of cash flows and footnotes to conform to the classifications used in fiscal 2019.  These reclassifications had no effect on net earnings.

 

Business Concentration A significant portion of our inventory purchases are concentrated with Usborne.  Purchases from them were approximately $29.8 million and $15.1 million for the years ended February 28, 2019 and 2018, respectively.  Total inventory purchases for those same periods were approximately $42.8 million and $24.5 million, respectively.  As of February 28, 2019, our outstanding accounts payable due to Usborne was $5.6 million.

 

A significant portion of our UBAM division sales are facilitated through the use of social media collaboration platforms that allow our consultants to interact in real-time, or near real-time, with customers.  Consultants use these platforms to invite potential customers to “online parties,”  provide book recommendations, answer questions and provide links to other supporting online materials. When a customer is ready to purchase books from the online party, they are redirected from the social media platform to the consultant’s e-commerce site where the order can be placed.   

 

Cash and Cash Equivalents Cash and cash equivalents are maintained at financial institutions and, at times, balances may exceed federally insured limits of $250,000. We have never experienced any losses related to these balances.  The majority of payments due from banks for third party credit card transactions process within two business days.  These amounts due are classified as cash and cash equivalents.  Cash and cash equivalents also include demand and time deposits, money market funds and other marketable securities with maturities of three months or less when acquired.

 

Accounts Receivable Accounts receivable are uncollateralized customer obligations due under normal trade terms, generally requiring payment within thirty days from the invoice date.  Extended payment terms are offered at certain times of the year for orders that meet minimum quantities or amounts.  Accounts receivable are stated at the amount management expects to collect from outstanding balances.  Delinquency fees are not assessed.  Payments of accounts receivable are allocated to the specific invoices identified on the customers’ remittance advice.  Accounts receivable are carried at original invoice amount less an estimated reserve made for returns and discounts based on quarterly review of historical rates of returns and expected discounts to be taken.  The carrying amount of accounts receivable is reduced, if needed, by a valuation allowance that reflects management’s best estimate of the amounts that will not be collected.

 

Management periodically reviews accounts receivable balances and, based on an assessment of historical bad debts, current customer receivable balances, age of customer receivable balances, customers’ financial conditions and current economic trends, estimates the portion of the balance that will not be collected.  Management provides for probable uncollectible amounts through a charge to earnings and a credit to a valuation account based on its assessment of the current status of the individual accounts. Balances which remain outstanding after management has used reasonable collection efforts are written off through a charge to the valuation allowance and a credit to accounts receivable.  Recoveries of accounts receivable previously written off are recorded as income when received.

 

 

Management has estimated an allowance for doubtful accounts of $268,600 and $297,100 as of February 28, 2019 and 2018, respectively. Included within this allowance is $93,900 of reserve for vendor discounts to sell remaining inventory as of February 28, 2019 and 2018.

 

Inventories Inventories are stated at the lower of cost or net realizable value.  Cost is determined using the average costing method.  We present a portion of our inventory as a noncurrent asset.  Occasionally we purchase book inventory in quantities in excess of what will be sold within the normal operating cycle due to the minimum order requirements of our primary supplier.  These excess quantities are included in noncurrent inventory.  We estimate noncurrent inventory using the current year turnover ratio by title.  All inventory in excess of 2½ years of anticipated sales is classified as noncurrent inventory.

 

Consultants that meet certain eligibility requirements may request and receive inventory on consignment.  Consignment inventory is stated at the lower of cost or net realizable value, less an estimated reserve for consignment inventory that is not expected to be sold or returned to the Company.  The total cost of inventory on consignment, excluding the estimated reserve, with consultants was $1,545,000 and $1,549,300 at February 28, 2019 and 2018, respectively.  The Company has reserved for consignment inventory not expected to be sold or returned of $48,600 and $460,000 as of February 28, 2019 and 2018, respectively.  

 

Inventories are presented net of a valuation allowance, which includes reserves for inventory obsolescence and consultant consignment inventory that is not expected to be sold or returned.  Management estimates the allowance for both current and noncurrent inventory.  The allowance is based on management’s identification of slow-moving inventory and estimated consignment inventory that will not be sold or returned.

 

Property, Plant and Equipment Property, plant and equipment are stated at cost and depreciated on a straight-line basis over the estimated useful lives, as follows:

 

Building

30 years

Building improvements

10 – 15 years

Machinery and equipment

3 – 15 years

Furniture and fixtures

3 years

 

Capitalized projects that are not placed in service are recorded as in progress and are not depreciated until the related assets are placed in service.

 

Impairments of Long-Lived Assets We review the value of long-lived assets for possible impairment whenever events or changes in circumstances indicate that the carrying value of the assets may not be recoverable based on estimated future cash flows.  Such indicators include, among others, the nature of the asset, the projected future economic benefit of the asset, historical and future cash flows and profitability measurements. If the carrying value of an asset exceeds the future undiscounted cash flows expected from the asset, we recognize an impairment charge for the excess of carrying value of the asset over its estimated fair value. Determination as to whether and how much an asset is impaired involves management estimates and can be impacted by other uncertainties. No impairment was noted during fiscal year 2019 or 2018.

 

Income Taxes We account for income taxes using the liability method. Under this method, deferred tax assets and liabilities are determined based on the difference between the financial statement and the tax basis of assets and liabilities using the current tax laws and rates. A valuation allowance is established when necessary to reduce deferred tax assets to the amounts that are “more likely than not” to be realized.

 

Revenue Recognition Sales are generally recognized and recorded when products are shipped.  Products are shipped FOB shipping point. UBAM’s sales are generally paid at the time the product is ordered.  Sales which have been paid for but not shipped are classified as deferred revenue on the balance sheet.  Sales associated with consignment inventory are recognized when reported and payment associated with the sale has been remitted.  Transportation revenue represents the amount billed to the customer for shipping the product and is recorded when the product is shipped.

 

Estimated allowances for sales returns, which reduce net sales and costs of goods sold, are recorded as sales are recognized. Management uses a moving average calculation to estimate the allowance for sales returns. We are not responsible for product damaged in transit. Damaged returns are primarily from retail stores. These returns result from damage that occurs in the stores, not in shipping to the stores. It is industry practice to accept non-damaged returns from retail customers. Management has estimated sales returns of approximately $204,000 and $217,000 as of February 28, 2019 and 2018, respectively, which is included in other current liabilities on the Company’s balance sheet. In addition, Management has recorded an asset for the expected value of non-damaged inventories to be returned. The estimated value of returned products of $102,000 and $117,000 is included in other current assets on the Company’s balance sheet as of February 28, 2019 and 2018, respectively.

 

 

Advertising Costs Advertising costs are expensed as incurred.  Advertising expenses, included in general and administrative expenses in the statements of earnings, were $629,900 and $546,600 for the years ended February 28, 2019 and 2018, respectively.

 

Shipping and Handling Costs We classify shipping and handling costs as operating and selling expenses in the statements of earnings.  Shipping and handling costs were $17,263,000 and $15,990,800 for the years ended February 28, 2019 and 2018, respectively.

 

Interest Expense Interest related to our outstanding debt is recognized as incurred.  Interest expense, classified separately in the statements of earnings, were $931,300 and $1,119,500 for the years ended February 28, 2019 and 2018, respectively.

 

Earnings per Share Basic earnings per share (“EPS”) is computed by dividing net earnings by the weighted average number of common shares outstanding during the period.  Diluted EPS is based on the combined weighted average number of common shares outstanding and dilutive potential common shares issuable which include, where appropriate, the assumed exercise of options.  In computing Diluted EPS, we have utilized the treasury stock method.

 

The computation of weighted average common and common equivalent shares used in the calculation of basic and diluted EPS is shown below.

 

   

Year Ended February 28,

 
   

2019

   

2018

 

Earnings per share:

               

Net earnings applicable to common shareholders

  $ 6,678,400     $ 5,214,700  

Shares:

               

Weighted average shares outstanding-basic

    8,189,149       8,175,996  

Assumed exercise of options

    7,479       5,326  

Weighted average shares outstanding-diluted

    8,196,628       8,181,322  
                 

Diluted earnings per share:

               

Basic

  $ 0.82     $ 0.64  

Diluted

  $ 0.81     $ 0.64  

 

Stock-Based Compensation We account for stock-based compensation whereby share-based payment transactions with employees, such as stock options and restricted stock, are measured at estimated fair value at the date of grant.  For awards subject to service conditions, compensation expense is recognized over the vesting period on a straight-line basis.  Awards subject to performance conditions are attributed separately for each vesting tranche of the award and are recognized ratably from the service inception date to the vesting date for each tranche.  Forfeitures are recognized when they occur.

 

New Accounting Pronouncements The Financial Accounting Standards Board (“FASB”) periodically issues new accounting standards in a continuing effort to improve standards of financial accounting and reporting. We have reviewed the recently issued pronouncements and concluded that the following recently issued accounting standard updates (“ASU”) apply to us.

 

In May 2014, FASB issued ASU No. 2014-09, and amended with ASU No. 2015-14 “Revenue from Contracts with Customers,” (“Topic 606”) which provides a single revenue recognition model which is intended to improve comparability over a range of industries, companies and geographical boundaries and will also result in enhanced disclosures. The changes are effective for fiscal years, and interim periods within those years, beginning after December 15, 2017. The amendments in this series of updates shall be applied either retrospectively to each period presented or as a cumulative-effect adjustment as of the date of adoption. The Company adopted Topic 606, Revenue from Contracts with Customers, with a date of initial application of March 1, 2018, using the full retrospective method applied to all contracts. Results for all reporting periods are presented under Topic 606. As a result of adopting this new accounting guidance, the Company has changed the method of accounting for its hostess awards program from reporting the net cost of these awards in operating and selling expenses to allocating a portion of the transaction price to the material right and reporting these in gross sales and discounts with the associated costs in cost of goods sold. The new reporting of these awards increases gross sales and increases discounts and allowances for a similar amount, having an immaterial effect on net revenues and no effect on net earnings or retained earnings, but lowering the Company’s gross margin percentage. The Company has also removed the allowance for sales returns from the net accounts receivable amount reported on the balance sheet. The allowance for sales returns has been adjusted to reflect a refund liability and a return asset. The cumulative impact of adoption of the new revenue recognition standard had no impact on our financial position, results of operations and cash flows (See Note 11 to the financial statements).

 

 

In February 2016, FASB issued ASU No. 2016-02, “Leases,” which is intended to establish a comprehensive new lease accounting model. The new standard clarifies the definition of a lease, requires a dual approach to lease classification similar to current lease classifications, and causes lessees to recognize leases on the balance sheet as a lease liability with a corresponding right-of-use asset. The new standard is effective for interim and annual periods beginning after December 15, 2018, which means the first quarter of our fiscal year 2020. The new standard requires a modified retrospective transition for capital or operating leases existing at or entered into after the beginning of the earliest comparative period presented in the financial statements. We have reviewed the ASU and evaluated the potential impact on our financial statements. As the accounting applied by a lessor is largely unchanged from that applied under the current standard, the Company does not expect the adoption of this ASU to have a material impact on the Company’s financial position, results of operations and cash flows.

 

In June 2016, FASB issued ASU No. 2016-13 "Financial Instruments - Credit Losses,” which requires a financial asset (or a group of financial assets) measured at amortized cost basis to be presented at the net amount expected to be collected.   The new standard is effective for fiscal years beginning after December 15, 2019, including interim periods within those fiscal years, which means the first quarter of our fiscal year 2021.  We expect the implementation of this ASU will not have a significant impact on our financial position, results of operations and cash flows.

 

In August 2016, FASB issued ASU No. 2016-15 “Statement of Cash Flows - Classification of Certain Cash Receipts and Cash Payments.” The guidance's objective is to reduce diversity in practice of how certain cash receipts and cash payments are presented and classified in the statement of cash flow. The new standards required date of adoption is effective for fiscal years beginning after December 15, 2017. This standard was adopted as of March 1, 2018. Adoption of this new standard did not have a material impact on our financial position, results of operations and cash flows.

 

In May 2017, FASB issued ASU 2017-09, “Compensation - Stock Compensation (Topic 718): Scope of Modification Accounting.” This update amends the scope of modification accounting surrounding share-based payment arrangements as issued in ASU 2016-09 by providing guidance on the various types of changes which would trigger modification accounting for share-based payment awards. This ASU is effective for annual periods beginning after December 15, 2017. The new standard is required to be applied prospectively. The guidance was effective March 1, 2018, and the adoption of this ASU did not have a material impact on our financial position, results of operations and cash flows.

 

2.         INVENTORIES

 

Inventories consist of the following:

 

   

February 28,

 
   

2019

   

2018

 

Current:

               

Book inventory

  $ 33,494,200     $ 27,078,600  

Inventory valuation allowance

    (48,600

)

    (460,000

)

Inventories net - current

  $ 33,445,600     $ 26,618,600  
                 

Noncurrent:

               

Book inventory

  $ 904,400     $ 707,700  

Inventory valuation allowance

    (329,400

)

    (271,800

)

Inventories net - noncurrent

  $ 575,000     $ 435,900  

 

 

3.         PROPERTY, PLANT AND EQUIPMENT

 

Property, plant and equipment consist of the following:

 

   

February 28,

 
   

2019

   

2018

 
                 

Land

  $ 4,107,200     $ 4,107,200  

Building

    20,321,800       20,321,800  

Building improvements

    1,777,100       1,758,800  

Machinery and equipment

    7,972,900       7,231,300  

Furniture and fixtures

    109,000       109,000  
      34,288,000       33,528,100  

Less accumulated depreciation

    (7,123,400

)

    (5,667,600

)

    $ 27,164,600     $ 27,860,500  

 

During fiscal years 2018 and 2019, the Company purchased and installed new warehouse equipment and made software enhancements to increase its daily shipping capacity and reduce warehouse labor.

 

4.         OTHER CURRENT LIABILITIES

 

Other current liabilities consist of the following:

 

   

February 28,

 
   

2019

   

2018

 
                 

Accrued royalties

  $ 869,200     $ 791,800  

Accrued UBAM incentives

    832,100       633,800  

Accrued freight

    431,400       357,800  

Sales tax payable

    547,000       557,600  

Allowance for expected inventory returns

    204,000       217,000  

Other

    1,294,200       959,900  
Total other current liabilities   $ 4,177,900     $ 3,517,900  

 

5.         INCOME TAXES

 

Deferred income taxes reflect the net tax effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes.  The tax effects of significant items comprising our net deferred tax assets and liabilities are as follows:

 

   

February 28, 

 
   

2019

   

2018

 

Deferred tax assets:

               

Allowance for doubtful accounts

  $ 72,500     $ 149,600  

Inventory overhead capitalization

    87,600       69,800  

Inventory valuation allowance

    13,100       47,200  

Inventory valuation allowance – noncurrent

    88,900       70,700  

Allowance for sales returns

    27,500       26,000  

Capital loss carryforward

    116,200       111,900  

Accruals

    252,900       141,700  

 Deferred tax assets

    658,700       616,900  
                 

Less valuation allowance

    (116,200

)

    (111,900

)

Total deferred tax assets

    542,500       505,000  
                 

Deferred tax liabilities:

               

Property, plant and equipment

    (1,415,100

)

    (641,900

)

Total deferred tax liabilities

    (1,415,100

)

    (641,900

)

                 

Net deferred income tax liabilities

  $ (872,600

)

  $ (136,900

)

 

 

On December 22, 2017, President Trump signed into law the Tax Act.  Among its provisions, the Tax Act reduces the statutory U.S. Corporate income tax rate from a maximum rate of 35% to 21% effective January 1, 2018. The Tax Act also provides for accelerated deductions of certain capital expenditures made after September 27, 2017 through bonus depreciation.  Upon the enactment of the Tax Act in fiscal 2018, we recorded a reduction in our deferred income tax liabilities of $43,200 for the effect of the aforementioned change in the U.S. statutory income tax rate.  The application of the Tax Act may change due to regulations subsequently issued by the U.S. Treasury Department.

 

Management has assessed the evidence to estimate whether sufficient future capital gains will be generated to utilize the existing capital loss carryforward. As no current expectation of capital gains exists, management has determined that a valuation allowance is necessary to reduce the carrying value of the capital loss carryforward deferred tax asset as it is “more likely than not” that such assets are unrealizable.

 

The amount of the deferred tax asset considered realizable, however, could be adjusted if future capital gains are generated during the carryforward period which ended February 28, 2019.  Management has determined that no valuation allowance is necessary to reduce the carrying value of other deferred tax assets as it is “more likely than not” that such assets are realizable.

 

The components of income tax expense are as follows:

 

   

February 28,

 
   

2019

   

2018

 

Current:

               

Federal

  $ 1,253,600     $ 1,964,700  

State

    513,100       388,400  
      1,766,700       2,353,100  

Deferred:

               

Federal

    674,500       239,800  

State

    61,200       25,100  
      735,700       264,900  

Total income tax expense

  $ 2,502,400     $ 2,618,000  

 

The following reconciles our expected income tax rate to the U.S. federal statutory income tax rate:

 

   

February 28,

 
   

2019

   

2018

 

U.S. federal statutory income tax rate

    21.0

%

    31.8

%

U.S. state and local income taxes–net of federal benefit

    4.7

%

    4.0

%

Other

    1.6

%

    (2.4

%)

Total income tax expense

    27.3

%

    33.4

%

 

Our U.S. federal statutory income tax rate declined from 34.0% to 21.0% as of January 1, 2018.  As our fiscal year ends February 28, our federal effective tax rate for fiscal 2018 was a blended rate of 31.8%.  We file our tax returns in the U.S. and certain state jurisdictions in which we have nexus. We are no longer subject to income tax examinations by tax authorities for fiscal years before 2017.

 

Based upon a review of our income tax filing positions, we believe that our positions would be sustained upon an audit and do not anticipate any adjustments that would result in a material change to our financial position. Therefore, no reserves for uncertain income tax positions have been recorded. We classify interest and penalties associated with income taxes as a component of income tax expense on the statements of earnings.

 

6.         EMPLOYEE BENEFIT PLAN

 

We have a profit-sharing plan that incorporates the provisions of Section 401(k) of the Internal Revenue Code.  The 401(k) plan covers substantially all employees meeting specific age and length of service requirements.  Matching contributions are discretionary and amounted to $133,300 and $89,400 during the fiscal years ended February 28, 2019 and 2018, respectively.  The 401(k) plan includes an option for employees to invest in our stock, which is purchased from our treasury stock shares.  Shares purchased for the 401(k) plan from treasury stock amounted to 40,641 net shares and 9,602 net shares during the fiscal years ended February 28, 2019 and 2018, respectively.

 

 

7.         COMMITMENTS

 

In connection with the purchase our 400,000 square-foot facility on 40-acres, in 2015, we entered into a 15-year lease with the seller, a non-related third party, who leases 181,300 square feet, or 45.3% of the facility.  The lease is being accounted for as an operating lease.

 

The cost of the leased space upon acquisition, and as of February 28, 2019, was estimated at $10,159,000.  The accumulated depreciation associated with the leased assets was $1,139,700 and $789,100 for the fiscal years ended February 28, 2019 and 2018, respectively.  Both the leased assets and accumulated depreciation are included in property, plant and equipment-net in the balance sheets.

  

The lessee pays $112,200 per month, through the lease anniversary date of December 2019, with a 2.0% annual increase adjustment on each anniversary date thereafter.  The lease terms allow for one five-year extension, which is not a bargain renewal option, at the expiration of the 15-year term.  Revenues associated with the lease are being recorded on a straight-line basis over the initial lease term and are reported in other income on the statements of earnings.

 

The following table reflects future minimum rental income payments under the non-cancellable portion of this lease as of February 28, 2019:

 

Year Ending February 28 (29),

 
         

2020

  $ 1,351,300  

2021

    1,378,300  

2022

    1,405,900  

2023

    1,434,000  

2024

    1,462,700  

Thereafter

    10,806,600  

Total

  $ 17,838,800  

 

At February 28, 2019, we had outstanding purchase commitments for inventory totaling $13,324,800, which is due during fiscal year 2020.  Of these commitments, $8,825,600 were with Usborne, $4,489,400 with various Kane Miller publishers and the remaining $9,800 with other suppliers.

 

Rent expense for the year ended February 28, 2019 and 2018, was $18,800 and $17,200, respectively.  The current lease on the property extends through 2021.

 

8.         DEBT

 

Debt consists of the following:

 

   

February 28,

 
   

2019

   

2018

 
                 

Line of credit

  $ -     $ -  
                 

Long-term debt

  $ 19,776,600     $ 20,706,300  

Less current maturities

    (945,900

)

    (881,200

)

Long-term debt, net of current maturities

  $ 18,830,700     $ 19,825,100  

 

We have a Loan Agreement dated as of March 10, 2016 (as amended the “Loan Agreement”) with MidFirst Bank (“the Bank”) which includes multiple loans.  Term Loan #1 is comprised of Tranche A totaling $13.4 million and Tranche B totaling $5.0 million, both with the maturity date of December 1, 2025.  Tranche A has a fixed interest rate of 4.23% and interest is payable monthly. Tranche B interest is payable monthly at the bank adjusted LIBOR Index plus a tiered pricing rate based on the Company’s Adjusted Funded Debt to EBITDA Ratio (4.99% at February 28, 2019).  Term Loan #1 is secured by the primary office, warehouse and land.  The outstanding borrowings on Tranche A were $11,984,100 and $12,453,300 at February 28, 2019 and 2018, respectively.  The outstanding borrowings on Tranche B were $4,479,700 and $4,657,700 at February 28, 2019 and 2018, respectively.

 

 

We also have Term Loan #2 with the Bank in the amount of $4.0 million with the maturity date of June 28, 2021, and interest payable monthly at the bank adjusted LIBOR Index plus a tiered pricing rate based on the Company’s Adjusted Funded Debt to EBITDA Ratio (4.99% at February 28, 2019).   Term Loan #2 is secured by our secondary warehouse and land. The Loan Agreement also provided a $15.0 million revolving loan (“line of credit”) through August 15, 2019 with interest payable monthly at the bank adjusted LIBOR Index plus a tiered pricing rate based on the Company’s Adjusted Funded Debt to EBITDA Ratio (4.99% at February 28, 2019).  The outstanding borrowings on Term Loan #2 were $3,312,800 and $3,595,100 at February 28, 2019 and 2018, respectively.  We had no borrowings outstanding on line of credit at February 28, 2019 and 2018.  Available credit under the revolving credit agreement was $12,439,300 at February 28, 2019 and $9,424,000 at February 28, 2018.

 

The Tranche B, line of credit and Term Loan #2 all accrue interest at a tiered rate based on our Adjusted Funded Debt to EBITDA ratio which is payable monthly.  The current pricing tier is as follows:

 

Pricing Tier

Adjusted Funded Debt to EBITDA Ratio

LIBOR Margin (bps)

I

>2.00

325.00

II

>1.50 but <2 .00

300.00

III

>1.00 but <1 .50

275.00

IV

<1 .00

250.00

 

Adjusted Funded Debt is defined as all long term and short-term bank debt less the outstanding balances of Tranche A and Tranche B Term Loans.  EBITDA is defined in the Loan Agreement as earnings before interest expense, income tax expense (benefit) and depreciation and amortization expenses, reduced by rental income.   The $15.0 million line of credit is limited to advance rates on eligible receivables and eligible inventory levels.

 

On June 15, 2018, the Company executed the Eighth Amendment Loan Agreement with the Bank related to our Loan Agreement. The amendment modifies the Loan Agreement, extending the termination date until August 15, 2019, reduces the interest rate pricing grid for all floating rate borrowings covered by the Loan Agreement, establishes a new $3,000,000 advancing term loan to be used for capital expansions to increase daily shipping capacity, releases the personal Guaranty of Randall W. White and Carol White, along with other covenant restrictions being lessened. The amendment also includes an adjustment to the Adjusted Funded Debt to EBITDA ratio for covenant compliance.

 

On February 7, 2019, the Company executed the Ninth Amendment Loan Agreement with the Bank related to our Loan Agreement. The amendment modifies the Loan Agreement, removing the covenant prohibiting the Company from repurchasing its shares, subject to certain conditions.

 

The Loan Agreement contains a provision for our use of the Bank’s letters of credit. The Bank agrees to issue or obtain issuance of commercial or stand-by letters of credit provided that no letters of credit will have an expiry date later than August 15, 2019, and that the sum of the line of credit plus the letters of credit would not exceed the borrowing base in effect at the time. We had no letters of credit outstanding for the year ended February 28, 2019.

 

The Loan Agreement also contains provisions that require us to maintain specified financial ratios, restrict transactions with related parties, prohibits mergers or consolidation, disallow additional debt, and limit the amount of investments, capital expenditures, leasing transactions we can make on a quarterly basis. Additionally, the Loan Agreement places limitations on the amount of dividends that may be distributed and the total value of stock that can be repurchased.

 

The following table reflects aggregate future maturities of long-term debt during the next five fiscal years and thereafter as follows:

 

Year ending February 28 (29),

 

2020

  $ 945,900  

2021

    988,600  

2022

    1,038,100  

2023

    1,087,600  

2024

    1,139,500  

Thereafter

    14,576,900  
    $ 19,776,600  

 

 

9 .         STOCK-BASED COMPENSATION

 

The Board of Directors adopted the 2002 Incentive Stock Option Plan (the “2002 Plan”) in June of 2002.  The 2002 Plan also authorized us to grant up to 2,000,000 stock options. Options granted under the 2002 Plan vest at date of grant and are exercisable up to ten years from the date of grant.  The exercise price on options granted is equal to the market price at the date of grant.  Options outstanding at February 28, 2019 expire in December 2019.

 

A summary of the status of our 2002 Plan as of February 28, 2019 and 2018, and changes during the years then ended is presented below:

 

   

February 28,

 
   

2019

   

2018

 
           

Weighted

           

Weighted

 
           

Average

           

Average

 
           

Exercise

           

Exercise

 
   

Shares

   

Price

   

Shares

   

Price

 
                                 

Outstanding at beginning of year

    10,000     $ 2.63       20,000     $ 2.63  

Exercised

    -       -       10,000       2.63  

Expired

    -       -       -       -  

Outstanding at end of year

    10,000     $ 2.63       10,000     $ 2.63  

 

At February 28, 2019, all options outstanding are exercisable with an aggregate intrinsic value of $54,300 and weighted-average remaining contractual terms of options outstanding of 0.8 years.

 

In July 2018, our shareholders approved the Company’s 2019 Long-Term Incentive Plan (“2019 LTI Plan”). The 2019 LTI Plan establishes up to 600,000 shares of restricted stock which can be granted to certain members of management based on exceeding specified net revenues and pre-tax performance metrics during fiscal years 2019, 2020 and 2021.  The first award of 200,000 shares of restricted stock will be made for exceeding the initial annual net revenues target of $100,000,000.  The second award of an additional 200,000 shares of restricted stock will begin to be awarded for exceeding annual net revenues of $112,500,000 up to the full award of shares for reaching the second targeted annual net revenues of $130,000,000.  The third award of 200,000 shares of restricted stock will begin to be awarded for exceeding annual net revenues of $146,250,000 up to the full award of shares for reaching the third targeted annual net revenues of $160,000,000.  Should the Company’s annual net revenues exceed $160,000,000 in any of the three years under the plan, the 2019 LTI Plan calls for the full award of the 600,000 shares of restricted stock to be issued.  Awards of restricted stock will be made based on interpolation for years that net revenues exceed an established net revenues target but do not fully reach the next net revenues target.  Net revenues under the 2019 LTI Plan is defined as gross sales, less discounts plus transportation revenue, similarly as presented on the Company’s Statement of Earnings.  Awards of shares will be delayed if the Company does not achieve a minimum pre-tax profit of 3.0% in any fiscal year.  Delayed awards will be made to participants upon the Company achieving the minimum profitability during the next completed fiscal year. Restricted shares granted under the 2019 LTI Plan “cliff vest” after five years of continued employment. 

 

The restricted share awards granted under the 2019 LTI Plan contain both service and performance conditions. The Company recognizes share compensation expense only for the portion of the restricted share awards that are considered probable of vesting.  Shares are considered granted, and the service inception date begins, when a mutual understanding of the key terms and conditions between the Company and the employee have been established.  The fair value of these awards is determined based on the closing price of the shares on the grant date. The probability of restricted share awards granted with future performance conditions is evaluated at each reporting period and compensation expense is adjusted based on the probability assessment.  

 

For certain awards that provide discretion to adjust the allocation of the restricted shares, the service-inception date for such awards could precede the grant date as a mutual understanding of the key terms and conditions between the Company and the employee has not yet been established.  For awards in which the service-inception date precedes the grant date, compensation cost is accrued beginning on the service-inception date.  The Company estimates the award's fair value on each subsequent reporting date, until the grant date, based on the closing market price of the Company’s common stock.  On the grant date, the award's fair value is fixed, subject to the remaining performance conditions, and the cumulative amount of previously recognized compensation expense is adjusted to the fair value at the grant date.

 

 

During fiscal year 2019, the Company granted approximately 308,000 restricted shares under the 2019 LTI Plan with an average grant-date fair value of $9.94 per share.  During fiscal year 2019, the Company recognized $401,800 of compensation expense associated with the shares granted. The remaining compensation expense for these awards, totaling approximately $2,660,500, will be recognized ratably over the remaining vesting period of approximately 48 months. 

 

A summary of compensation expense recognized in connection with restricted share awards follows:

 

   

Year Ended February 28,

 
   

2019

   

2018

 
                 

Share-based compensation expense

  $ 401,800     $ -  

 

10 .         STOCK REPURCHASE PLAN

 

In April 2008, the Board of Directors authorized us to repurchase up to an additional 1,000,000 shares of our common stock under the plan initiated in 1998 (“amended 2008 plan”).  On February 4, 2019, the Board of Directors replaced the amended 2008 plan with a new plan which authorized us to repurchase up to 800,000 of outstanding common stock in the open market or in privately negotiated transactions, and to utilize any derivative or similar instrument to effect share repurchase transactions (including without limitation, accelerated share repurchase contracts, equity forward transactions, equity swap transactions, floor transactions or other similar transactions or any combination of the foregoing transactions). The Company received approval for the new plan from its primary lender, which removed certain restrictions on share repurchases outlined in the fourth amendment and added other restrictions outlined in the ninth amendment to the Company’s Loan Agreement (see Note 8 to the financial statements).  

 

During fiscal year 2019, and prior to February 4, 2019, we purchased 16,805 shares at an average price of $11.31 per share totaling approximately $190,100 under the amended 2008 stock repurchase plan. Between February 4 and February 28, 2019, we purchased 8,366 shares at an average price of $7.93 per share totaling approximately $66,400 under the new 2019 stock repurchase plan.

 

1 1 .         REVENUE RECOGNITION

 

Revenue is derived from the sales of children’s books and related products which are generally capable of being distinct and accounted for as a single performance obligation to deliver tangible goods. Substantially all of our books are sold to end consumers and publishing retail outlets. Revenues are recognized at shipping point, which is the point in time the customer obtains control of the products and risk of loss and rewards of ownership have been transferred. Shipping and handling fees are recorded as operating and selling expenses when the product is shipped and revenue is recognized. The Company estimates product returns based on historical return rates. The majority of the Company's contracts have a single performance obligation and are short term in nature. Sales taxes, that are collected from customers and remitted to governmental authorities, are accounted for on a net basis and therefore are excluded from net sales. 

 

Adoption of ASC Topic 606, “Revenue from Contracts with Customers”

 

On March 1, 2018, the Company adopted Topic 606, as prescribed by the FASB, using the full retrospective method. Results for all reporting periods are presented under Topic 606.

 

There was no change to net earnings or retained earnings due to the adoption of Topic 606, with the impact primarily related to the recording of our hostess awards program in gross sales and discounts and allowances, as opposed to recording the net costs in operating and selling expenses. 

 

Disaggregation of Revenue

 

Refer to Note 13 – Business Segments for revenue by segment. 

 

 

Arrangements with Multiple Performance Obligations

 

Certain contracts associated with the hostess awards program include sales incentives, such as discounted or free products. These incentives provide a separate performance obligation in the contract and material right to the customer. The transaction price is allocated to the material right based on its relative standalone selling price and is recognized in revenue as the performance obligations are satisfied, which occurs at shipping point or at the expiration of the material right. As our sales incentives are delivered with the associated products ordered, there is no deferral required. Revenue allocated to the material right are recognized in gross sales, discounts and allowances and cost of goods sold in our statement of earnings.

 

Practical Expedients and Exemptions

 

The Company generally expenses sales commissions when incurred. These costs are recorded within operating expenses. The Company does not disclose the value of unsatisfied performance obligations for contracts with an original expected length of one year or less.

Impact on Financial Statements

 

As a result of applying Topic 606, the impact to the Company’s balance sheet as of February 28, 2018 was as follows: 

 

                   

Without

 
   

As Reported

   

Adjustments

   

Adoption

 

ASSETS

                       

Accounts receivable-Net

  $ 2,913,700     $ (99,900

)

  $ 2,813,800  

Inventories-Net

    26,618,600       (100

)

    26,618,500  

Prepaid expenses and other assets

    1,259,000       (117,000

)

    1,142,000  

Total current assets

    33,514,600       (217,000

)

    33,297,600  
                         

TOTAL ASSETS

    61,837,900       (217,000

)

    61,620,900  
                         

LIABILITIES

                       

Other current liabilities

    3,517,900       (217,000

)

    3,300,900  

Total liabilities

    41,435,800       (217,000

)

    41,218,800  

 

As a result of applying Topic 606, the impact to the Company’s statement of earnings for the year ended February 28, 2018 was as follows:

 

                   

Without

 
   

As Reported

   

Adjustments

   

Adoption

 

GROSS SALES

  $ 139,040,400     $ (13,193,200

)

  $ 125,847,200  

Less discounts and allowances

    (38,103,500

)

    13,174,700       (24,928,800

)

Transportation revenue

    11,047,700       -       11,047,700  

NET REVENUES

    111,984,600       (18,500

)

    111,966,100  

COST OF GOODS SOLD

    35,824,300       (4,893,000

)

    30,931,300  

Gross margin

    76,160,300       4,874,500       81,034,800  
                         

OPERATING EXPENSE:

                       

Operating and selling

    17,694,700       4,876,500       22,571,200  

Sales commissions

    35,359,000       -       35,359,000  

General and administrative

    15,736,300       -       15,736,300  

Total operating expenses

    68,790,000       4,876,500       73,666,500  
                         

INTEREST EXPENSE

    1,119,500       -       1,119,500  

OTHER INCOME

    (1,581,900

)

    (2,000

)

    (1,583,900

)

                         

EARNINGS BEFORE INCOME TAXES

    7,832,700       -       7,832,700  
                         

INCOME TAXES

    2,618,000       -       2,618,000  

NET EARNINGS

  $ 5,214,700     $ -     $ 5,214,700  

 

 

As a result of applying Topic 606, the impact to the Company’s operating results by reporting segment for the year ended February 28, 2018 was as follows:

 

UBAM

 

                   

Without

 
   

As Reported

   

Adjustments

   

Adoption

 

GROSS SALES

  $ 121,364,700     $ (13,193,900

)

  $ 108,170,800  

Less discounts and allowances

    (28,657,900

)

    13,175,400       (15,482,500

)

Transportation revenue

    11,010,300       -       11,010,300  

NET REVENUES

    103,717,100       (18,500

)

    103,698,600  

COST OF GOODS SOLD

    31,132,800       (4,893,000

)

    26,239,800  

Gross margin

    72,584,300       4,874,500       77,458,800  
                         

OPERATING EXPENSE:

                       

Operating and selling

    14,509,500       4,875,500       19,385,000  

Sales commissions

    35,043,200       -       35,043,200  

General and administrative

    3,602,000       -       3,602,000  

Total operating expenses

    53,154,700       4,875,500       58,030,200  

OPERATING INCOME

  $ 19,429,600     $ (1,000

)

  $ 19,428,600  

 

Publishing

 

                   

Without

 
   

As Reported

   

Adjustments

   

Adoption

 

GROSS SALES

  $ 17,675,700     $ 700     $ 17,676,400  

Less discounts and allowances

    (9,445,600

)

    (700

)

    (9,446,300

)

Transportation revenue

    37,400       -       37,400  

NET REVENUES

    8,267,500       -       8,267,500  

COST OF GOODS SOLD

    4,691,500       -       4,691,500  

Gross margin

    3,576,000       -       3,576,000  
                         

OPERATING EXPENSE:

                       

Operating and selling

    987,500       -       987,500  

Sales commissions

    315,700       -       315,700  

General and administrative

    509,600       -       509,600  

Total operating expenses

    1,812,800       -       1,812,800  

OPERATING INCOME

  $ 1,763,200     $ -     $ 1,763,200  

 

12 .         QUARTERLY RESULTS OF OPERATIONS (UNAUDITED)

 

The following is a summary of the quarterly results of operations for the years ended February 28, 2019 and 2018.

 

   

 

Net

Revenues

   

Gross Margin

   

Net Earnings

   

 

Basic Earnings

Per Share

   

 

Diluted Earnings

Per Share

 

2019

                                       

First quarter

  $ 30,022,300     $ 20,352,600     $ 1,816,600     $ 0.22     $ 0.22  

Second quarter

    24,681,000       16,218,300       1,490,700       0.18       0.18  

Third quarter

    40,482,600       27,341,000       2,815,600       0.34       0.34  

Fourth quarter

    23,625,400       15,835,800       555,500       0.08       0.07  

Total year

  $ 118,811,300     $ 79,747,700     $ 6,678,400     $ 0.82     $ 0.81  
                                         

2018

                                       

First quarter

  $ 26,941,200     $ 18,342,400     $ 1,225,300     $ 0.15     $ 0.15  

Second quarter

    24,186,900       16,536,600       1,036,900       0.13       0.13  

Third quarter

    38,909,900       26,698,200       2,128,400       0.26       0.26  

Fourth quarter

    21,946,600       14,583,100       824,100       0.10       0.10  

Total year

  $ 111,984,600     $ 76,160,300     $ 5,214,700     $ 0.64     $ 0.64  

 

 

1 3 .         BUSINESS SEGMENTS

 

We have two reportable segments: Publishing and UBAM. These reportable segments offer different methods of distribution to different types of customers. They are managed separately based on the fundamental differences in their operations. Our Publishing segment markets its products to retail accounts, which include book, school supply, toy and gift stores and museums, through commissioned sales representatives, trade and specialty wholesalers and our internal tele-sales group. Our UBAM segment markets its products through a network of independent sales consultants using a combination of internet sales, direct sales, home shows and book fairs.

 

The accounting policies of the segments are the same as those of the rest of the Company. We evaluate segment performance based on earnings before income taxes of the segments, which is defined as segment net revenues reduced by cost of sales and direct expenses. Corporate expenses, depreciation, interest expense and income taxes are not allocated to the segments but are listed in the “Other” row below. Corporate expenses include the executive department, accounting department, information services department, general office management, warehouse operations and building facilities management. Our assets and liabilities are not allocated on a segment basis. 

 

Information by industry segment for the years ended February 28, 2019 and 2018 is set forth below:

 

NET REVENUES

 

   

2019

   

2018

 

Publishing

  $ 10,430,000     $ 8,267,500  

UBAM

    108,381,300       103,717,100  

Total

  $ 118,811,300     $ 111,984,600  

 

EARNINGS (LOSS) BEFORE INCOME TAXES

 

   

2019

   

2018

 

Publishing

  $ 2,885,800     $ 1,763,200  

UBAM

    19,250,100       19,429,600  

Other

    (12,955,100

)

    (13,360,100

)

Total

  $ 9,180,800     $ 7,832,700  

 

1 4 .         FAIR VALUE MEASUREMENTS

 

The valuation hierarchy included in U.S. GAAP considers the transparency of inputs used to value assets and liabilities as of the measurement date.  A financial instrument's classification within the valuation hierarchy is based on the lowest level of input that is significant to its fair value measurement. The three levels of the valuation hierarchy and the classification of our financial assets and liabilities within the hierarchy are as follows:

 

Level 1 - Quoted prices (unadjusted) in active markets for identical assets or liabilities that the reporting entity has the ability to access at the measurement date.

 

Level 2 - Observable inputs other than quoted prices included within Level 1 for the asset or liability, either directly or indirectly. If an asset or liability has a specified term, a Level 2 input must be observable for substantially the full term of the asset or liability.

 

Level 3 - Unobservable inputs for the asset or liability.

 

We do not report any assets or liabilities at fair value in the financial statements. However, the estimated fair value of our line of credit is estimated by management to approximate the carrying value of $0 at February 28, 2019 and 2018.  The estimated fair value of our term notes payable is estimated by management to approximate $19,123,700 and $19,454,500 at February 28, 2019 and 2018, respectively. Management's estimates are based on the obligations' characteristics, including floating interest rate, maturity, and collateral. Such valuation inputs are considered a Level 2 measurement in the fair value valuation hierarchy.

 

 

1 5 .         DEFERRED REVENUES

 

The Company’s UBAM division receives payments on orders in advance of shipment. Any payments received prior to our fiscal year end that were not shipped as of February 28, 2019 are recorded as deferred revenues on the balance sheet. We received approximately $965,600 and $693,000 at February 28, 2019 and 2018, respectively, in payments for sales orders which were, or will be, shipped out subsequent to the year end. Orders that were included in deferred revenues predominantly shipped within the first few days of the next fiscal year.

 

1 6 .       SUBSEQUENT EVENTS

 

On May 21, 2019, the Board of Directors of EDC approved a $0.05 dividend that will be paid to shareholders of record on Tuesday, June 4, 2019. 

 

 

 

 

 

 

 

40

 

 

 

Exhibit 10.7

 

 

LOAN AGREEMENT

 

By and Between

 

EDUCATIONAL DEVELOPMENT CORPORATION

 

and

 

MIDFIRST BANK

 

 

 

 

December 1, 2015

 

 

 

 

 

 

 

 

 

TABLE OF CONTENTS

 

       

Page

ARTICLE I. DEFINITIONS

1

 

1.1.

Defined Terms

1

 

1.2.

Terms Generally; References and Titles; Accounting Terms

1

         

ARTICLE II. THE LOAN

 
 

2.1.

The Loan

1

   

(a)

Interest

1

   

(b)

Default Rate; Late Charge

2

   

(c)

Payment

2

   

(d)

Prepayment

2

   

(e)

Additional Expenditures

3

   

(f)

Additional Costs

3

   

(g)

Lenders Determinations

3

 

2.2.

Security for the Loan

4

         

ARTICLE III. REPRESENTATIONS

4

 

3.1.

Representations

4

   

(a)

Status; Operational Authority

4

   

(b)

Power; Transactional Authority; Enforceability

4

   

(c)

No Violation; No Consent

4

   

(d)

Financial Matters

4

   

(e)

No Default

4

   

(f)

Trade Name

4

   

(g)

Litigation

5

   

(h)

Title and Authority; Permitted Encumbrances

5

   

(i)

Taxes

5

   

(j)

Foreign Person

5

   

(k)

ERISA

5

   

(l)

Executive Order 13224; OFAC

5

   

(m)

Purpose

5

   

(n)

Investment Company Act

5

   

(o)

No Financing Statement

6

   

(p)

Location of Collateral

6

   

(q)

Compliance with Applicable Law

6

   

(r)

Brokerage Commissions

6

   

(s)

Leases

6

   

(t)

Collateral

6

   

(u)

Condition of Property

6

   

(v)

Operating Account

7

   

(w)

Environmental

7

   

(x)

No Reliance

7

         

ARTICLE IV. COVENANTS AND AGREEMENTS OF BORROWER

7

 

4.1.

Covenants and Agreements

7

   

(a)

Change of Name, Identity or Structure

7

   

(b)

Indemnity

7

   

(c)

Fees and Expenses

8

   

(d)

Waivers.

8

   

(e)

Books and Records

8

   

(f)

Financial Statements and other Reports

8

   

(g)

Compliance Certificate

9

   

(h)

Estoppel Certificate

9

   

(i)

Further Assurances

9

   

(j)

Location and Use of Collateral

10

 

i

 

 

   

(k)

Insurance Requirements

10

   

(l)

Escrow

11

   

(m)

Operation of Property

11

   

(n)

Repair and Maintenance

11

   

(o)

Appraisal

11

   

(p)

Casualty and Condemnation

12

   

(q)

Title Insurance

13

   

(r)

Collateral

13

   

(s)

Litigation

13

   

(t)

Indebtedness

13

   

(u)

Limitation on Dividends

13

   

(v)

Hilti Lease

13

         

ARTICLE V. DEFAULTS AND REMEDIES

13

 

5.1.

Event of Default

14

   

(a)

Monetary Obligations

14

   

(b)

Representations

14

   

(c)

Bankruptcy Event

14

   

(d)

Third Party Matters

14

   

(e)

Transfers; Liens; Debt

14

   

(f)

Death; Dissolution; Change in Ownership or Control

14

   

(g)

Financial Reporting

14

   

(h)

DCR Test Default

14

   

(i)

DTW Test Default

14

   

(j)

Hilti Lease.  Hilti is 30 or more days past due on rent or any other payment to Borrower, as landlord, under the Hilti Lease; or

14

   

(k)

Loan to Value Default

14

   

(l)

Non-Monetary Obligations

14

 

5.2.

Remedies

14

   

(a)

Pre-Event of Default

14

   

(b)

Post-Event of Default

15

   

(c)

Costs

15

         

ARTICLE VI. GENERAL CONDITIONS

15

 

6.1.

Waiver

15

 

6.2.

Lender's Action or Inaction

15

 

6.3.

Lender's Rights

16

 

6.4.

Third Party Rights

16

 

6.5.

Satisfaction of Condition; Time

16

 

6.6.

Assignment; Loan Participations

16

 

6.7.

Heirs, Successors and Assigns

16

 

6.8.

Exercise of Rights and Remedies

17

 

6.9.

Headings

17

 

6.10.

Inconsistency

17

 

6.11.

Applicable Law

17

 

6.12.

Forum; Service

17

 

6.13.

Usury

17

 

6.14.

Severability

17

 

6.15.

Counterparts

17

 

6.16.

Joint Liability

18

 

6.17.

Modification or Termination

18

 

6.18.

Notice

18

 

6.19.

Signatures

18

 

6.20.

No Partnership

18

 

6.21.

Waiver of Jury Trial

18

 

6.22.

Consent of Lender; Approvals

19

 

6.23.

Imaging

19

 

ii

 

 

 

6.24.

Entire Agreement

 

19

 

6.25.

Damage Waiver

 

19

 

 

 

 

 

 

iii

 

 

 

LOAN AGREEMENT

 

Borrower and Lender, for the mutual promises in the Loan Documents and other good and valuable consideration, enter into this Agreement on the Effective Date.

 

Background Recitals

 

A.     Borrower has requested that Lender make the Loan to Borrower.

 

B.     Lender has agreed, subject to the terms of the Loan Documents, to make the Loan to Borrower.

 

C.     Borrower and Lender desire to enter into this Agreement to specify the terms and conditions of the Loan.

 

Borrower and Lender (1) acknowledge the receipt and sufficiency of the above-referenced consideration, and, (2) therefore, agree as follows:

 

ARTICLE I.
DEFINITIONS

 

1.1.      Defined Terms . Each capitalized term used in the Loan Documents has the meaning set forth in Exhibit A of this Agreement.

 

1.2.      Terms Generally; References and Titles; Accounting Terms . References in this Agreement to "Articles," "Sections," "Exhibits" or "Schedules" will be to the Articles, Sections, Exhibits or Schedules of this Agreement unless otherwise specifically provided. All Exhibits and Schedules attached to this Agreement are incorporated in, and are a part of, this Agreement for the purposes set forth in this Agreement. Any term defined in this Agreement may be used in the singular or plural. Words of any gender include all other genders. The terms "include," "includes," and "including" are followed by "without limitation". Except as otherwise specified or limited in this Agreement, a reference to any Person includes the successors and assigns of the Person. Unless otherwise specified all references "from" or "through" any date mean "from and including" or "through and including" the date. References to any statute or act include all related current regulations and all amendments and any successor statutes, acts and regulations. References to any statute or act, without additional reference, refer to federal statutes and acts of the United States. References to any agreement, instrument or document includes all schedules, exhibits, annexes and other attachments to the agreement, instrument or document. Except as otherwise specifically provided herein, all accounting terms not specifically or completely defined herein shall be construed in conformity with GAAP, applied in a manner consistent with that used in preparing the financial statements delivered pursuant to this Agreement.

 

ARTICLE II.
THE LOAN

 

2.1.      The Loan . Subject to the terms of this Agreement and in reliance on Borrower’s representations and warranties in the Loan Documents, Lender agrees to lend, and Borrower agrees to borrow, the Loan. THEREFORE, FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender the Principal Amount with fees, costs and interest as set forth in, and payable (in Dollars at Lender's Offices) pursuant to, this Agreement. The Loan shall be divided into two tranches, Tranche A and Tranche B. The funding and closing of the Loan will take place in Lender's Offices or at such other place as Lender may designate.

 

(a)      Interest (i)     .    

 

(i)     Subject to Subsection 2.1( b ) below: (A) the Principal Amount of Tranche A bears interest at the Contract Rate, and (B) subject to Subsection 2.1(a)(ii) below, the Principal Amount of Tranche B and Additional Costs bear interest at the LIBO Rate.

 

(ii)     All interest accruing under the Loan Documents will be calculated on the basis of a 360-day year applied to the actual number of days in each month. Borrower shall make each payment which it owes under the Loan Documents on or before the Payment Deadline in immediately available Dollars without setoff, counterclaim or other deduction. If Lender

 

1

 

 

 

receives any payment after the Payment Deadline, then the payment will be credited on the next following Business Day.

 

(iii)     Immediately after Lender gives a Suspension Notice to Borrower, Lender's obligation to make or maintain Tranche B of the Loan and Additional Costs at the LIBO Rate will be suspended and all interest and Additional Costs payable at the LIBO Rate will automatically convert to the Prime Rate. If circumstances further change and nullify the basis on which the Suspension Notice was given, then Lender will advise Borrower of the change and thereafter Tranche B and the Additional Costs will automatically bear interest at the LIBO Rate.

 

(b)      Default Rate; Late Charge .

 

(i)     Any time during an Event of Default Period (and including any period prior to and after any judgment against any Borrower Party concerning the Loan, the Principal Amount or Additional Costs), the Principal Amount, any Additional Costs and all past due installments of interest will, at Lender's option, bear interest at the Default Rate.

 

(ii)     In addition to all other sums due under the Loan Documents, Borrower shall pay to Lender on demand the Late Charge upon all Past Due Indebtedness. The Late Charge is not a penalty, but is intended to compensate Lender for the losses Lender incurs because of the delinquent payment. Borrower agrees that, considering all of the circumstances existing on the date this Agreement is executed, the Late Charge represents a reasonable estimate of the losses Lender will incur because of any late payment, and that proof of Lender's actual losses will be costly, inconvenient, impracticable and extremely difficult to fix. Lender does not waive the Event of Default resulting from a past due payment because Lender accepts a Late Charge.

 

(c)      Payment .

 

(i)     Borrower shall pay to Lender on each Principal Payment Date: (A) with respect to Tranche A, interest on the Principal Amount, in arrears, on each Interest Payment Date, and the Principal Installment Amount, and (B) with respect to Tranche B, the Amortized Installment Amount. On the Maturity Date, Borrower shall pay in full to Lender (1) the Principal Amount along with all unpaid, accrued interest, and (2) all other Indebtedness.

 

(ii)     Except during an Event of Default Period, Lender will apply all Loan payments: (A) first, to any unpaid Claims; (B) second, to any unpaid Additional Costs; (C) third, to accrued but unpaid interest due under the Loan Documents; (D) fourth, to all other unpaid sums due under the Loan Documents, except for the Principal Amount; and (E) last, to the unpaid Principal Amount (first to Tranche B, and then to Tranche A). During an Event of Default Period, Lender may apply all Loan payments in any order Lender elects in its sole discretion.

 

(iii)     Borrower may not send any payments to Lender with a Paid in Full Mark. If Borrower tenders a payment to Lender with a Paid in Full Mark, then Lender may accept the payment without losing any of Lender's rights under the Loan Documents, and Borrower will remain obligated to pay any further amounts owed to Lender under the Loan Documents.

 

(d)      Prepayment . Borrower may prepay Tranche B of the Loan, in whole or in part, without premium or penalty. Borrower may not prepay Tranche A of the Loan in whole or in part, except during the Prepayment Period, except as set forth below. Lender may refuse to accept any Loan prepayment which does not comply with this Section 2.1(d) . During the Prepayment Period, Borrower may prepay Tranche A of the Loan, in whole or in part, without premium. However, if Borrower prepays Tranche A of the Loan at any time other than during the Prepayment Period, then concurrent with the prepayment, Borrower shall remit to Lender the Prepayment Premium; provided , however , the Prepayment Premium shall not be required to the extent the source of such prepayment is from Borrower's operational cash flow (and only to such extent), and not a refinancing, sale of the Property or any other source. Upon request, Borrower shall provide Lender with evidence reasonably satisfactory to Lender that any such exception to the Prepayment Premium is from Borrower's operational cash flow.

 

2

 

 

 

(i)     Lender and Borrower agree that:

 

(A)     the Prepayment Premium is not a penalty;

 

(B)     the Prepayment Premium will compensate Lender for Lender's losses resulting from Borrower's prepayment of Tranche A of the Loan;

 

(C)     Lender is likely to sustain losses if Borrower prepays Tranche A of the Loan;

 

(D)     the calculation method used to determine the Prepayment Premium is a reasonable determination of Lender's loss resulting from Borrower's prepayment of Tranche A of the Loan;

 

(E)     Lender has no obligation to mitigate its loss arising from any prepayment of Tranche A of the Loan; and

 

(F)     the compensation Lender will receive from Tranche A of the Loan, if Tranche A of the Loan is not prepaid, is greater than or equal to the Prepayment Premium.

 

(ii)     Borrower waives any right to claim that the Prepayment Premium is unenforceable or a penalty.

 

(iii)     Borrower acknowledges that Lender:

 

(A)     made the Loan to Borrower expecting that Borrower will not repay Tranche A of the Loan early but will repay Tranche A of the Loan as set forth in Section 2.1 (c) above; and

 

(B)     was not willing to make Tranche A of the Loan for a shorter period.

 

(iv)     If during an Event of Default Period, Lender accelerates the maturity and repayment of the Loan, then the Prepayment Premium for Tranche A will also be due and added to the Indebtedness.

 

Borrower has read and understands the terms of this Prepayment Section .

 

EDUCATIONAL DEVELOPMENT CORPORATION, a Delaware corporation

 

By:                                                                       

Name: Randall W. White

Title:   Chairman, President and CEO

 

(e)      Additional Expenditures . All sums Lender pays or expends pursuant to the Loan Documents in excess of the Maximum Principal Amount will be (i) an additional loan to Borrower, (ii) Indebtedness, and (iii) immediately due and payable, upon Lender's written demand to Borrower, together with interest at the Default Rate from the date of Lender's expenditure until Borrower repays the expenditure and interest to Lender. Notwithstanding anything to the contrary in the Loan Documents, Lender is not obligated to make any expenditures.

 

(f)      Additional Costs . Notwithstanding anything to the contrary in any of the Loan Documents, Borrower shall pay to Lender all Additional Costs immediately after Lender's demand.

 

(g)      Lenders Determinations . All of Lender's reasonable determinations under Section 2.1 (a) are conclusive, absent manifest error.

 

2.2.      Security for the Loan . The Loan is secured by, among other things, the Security Instrument and is guaranteed by the Guaranty.

 

3

 

 

 

ARTICLE III.
REPRESENTATIONS

 

3.1.      Representations . On the Effective Date and on each Compliance Certificate Delivery Date, Borrower represents to Lender that:

 

(a)      Status; Operational Authority . Each Borrower Party: (i) is duly organized, validly existing, and in good standing, under the laws of the jurisdiction in which it is formed; (ii) is duly qualified, authorized to do business, and in good standing, in every jurisdiction (other than the jurisdiction of its formation) in which it must be qualified; and (iii) has the power and authority to own the Property and its other assets, and to transact its present and proposed business.

 

(b)      Power; Transactional Authority; Enforceability . Each Borrower Party has the requisite power and authority to execute, deliver and carry out the terms and provisions of the Loan Documents to which it is a party, and has taken all necessary actions to authorize its execution, delivery and performance of the Loan Documents. Each Borrower Party has duly executed and delivered the Loan Documents. The Loan Documents each Borrower Party executes or under which it is obligated constitute the Borrower Party's legal, valid and binding obligations, enforceable in accordance with the terms of the Loan Documents, subject to (i) the effect of any Applicable Bankruptcy Law, or (ii) general principles of equity.

 

(c)      No Violation; No Consent . Each Borrower Party's execution, delivery and performance of the Loan Documents, and compliance with the terms and provisions of the Loan Documents, will not (i) contravene any Applicable Law, (ii) conflict or be inconsistent with or result in any breach of any term, covenant, condition or provision of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the Property or the Borrower Party's other assets pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which the Borrower Party is a party or by which the Borrower Party or any of the Property or the Borrower Party's other assets is bound or may be subject, or (iii) violate any term of any Borrower Party's certificate of incorporation or other documents and agreements governing the Borrower Party's existence, management or operation. No Borrower Party is required to obtain the consent of any other party, including any Governmental Authority, in connection with the execution, delivery, performance, validity or enforceability of the Loan Documents.

 

(d)      Financial Matters . Each Borrower Party financial statement previously delivered to Lender was prepared in accordance with GAAP and completely, correctly and fairly present the financial condition and the results of operations of each Borrower Party on the date and for the period covered by the financial statements. All other reports, statements and other data that any Borrower Party furnished to Lender in connection with the Loan are true and correct in all material respects and do not omit any fact or circumstance necessary to ensure that the statements are not misleading. Each Borrower Party (i) is solvent, (ii) is not bankrupt, and (iii) has no outstanding liens, suits, garnishments, bankruptcies or court actions which may render the Borrower Party insolvent or bankrupt. Since the date of the last financial statements each Borrower Party delivered to Lender, no event, act, condition or liability has occurred or exists, which has had, or may reasonably be expected to have, a material adverse effect upon (A) such Borrower Party's business, condition (financial or otherwise) or operations, or (B) such Borrower Party's ability to perform or satisfy, or Lender's ability to enforce, any of the Indebtedness.

 

(e)      No Default . No Event of Default exists.

 

(f)      Trade Name . Borrower does not do business under any trade name or other name with respect to the Property or otherwise.

 

(g)      Litigation . There are no suits or proceedings (including condemnation) pending or (to Borrower's knowledge, after reasonable inquiry) threatened against or affecting any Borrower Party or the Property or involving the validity, enforceability or priority of any of the Loan Documents. Borrower has not received notice from any Governmental Authority alleging that any Borrower Party or the Property is violating any Applicable Law.

 

4

 

 

 

(h)      Title and Authority; Permitted Encumbrances . Borrower is the lawful owner of good and marketable title to the Property free and clear from all liens, security interests and encumbrances, except the lien and security interest evidenced by the Security Instrument and the Permitted Encumbrances. Borrower has good right and authority to transfer and encumber the Property and to grant a security interest in the Collateral. There are no mechanics' or materialmen's liens, or other claims that may constitute a lien on the Property other than claims for Real Estate Taxes which are not yet due or payable. There are no defaults under any of the Permitted Encumbrances. No Permitted Encumbrance has been modified unless approved by Lender in writing.

 

(i)      Taxes . Each Borrower Party has filed all required Tax returns. Each Borrower Party has paid all Taxes for which it is obligated, other than those Taxes which (A) are not yet delinquent or (B) the appropriate Borrower Party is diligently, and in good faith, contesting and for which the Borrower Party has made adequate reserves acceptable to Lender.

 

(j)      Foreign Person . Borrower is not a "foreign person" within the meaning of the Internal Revenue Code of 1986, as amended, Sections 1445 and 7701 (i.e., Borrower is not a non-resident alien, foreign corporation, foreign partnership, foreign trust or foreign estate as those terms are defined in the Internal Revenue Code and the regulations promulgated thereunder). Borrower's Taxpayer Identification Number is true and correct.

 

(k)      ERISA . (i) Borrower is not an "employee benefit plan" or a "governmental plan" within the meaning of ERISA; (ii) Borrower is not subject to state statutes regulating investments and fiduciary obligations with respect to governmental plans; (iii) Borrower's assets do not constitute "plan assets" under ERISA; and (iv) one or more of the following circumstances is true: (1) Equity interests in Borrower are publicly offered securities under ERISA or are securities issued by an investment company registered under the Investment Company Act of 1940; (2) Less than 25% of the value of any class of equity interests in Borrower is held by "benefit plan investors" within the meaning of ERISA; or (3) Borrower qualifies as an "operating company," a "venture capital operating company," or a "real estate operating company" within the meaning of ERISA. Borrower will deliver to Lender such certifications and other evidence periodically requested by Lender, in its sole discretion, to verify the representations in this S ubsection .

 

(l)      Executive Order 13224; OFAC . No Borrower Party or any Person with which a Borrower Party is associated or affiliated is (i) referred to or described in Executive Order 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, as amended) or (ii) subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department. Borrower will not use any Loan proceeds in violation of any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department.

 

(m)      Purpose . The Loan is solely for the purpose of carrying on or acquiring Borrower's business, and is not for personal, family, household or agricultural purposes. Borrower does not use any portion of the Property as Borrower's residence or business homestead and, therefore, no portion of the Property is exempt from forced sale under Applicable Bankruptcy Law or any other Applicable Law. Borrower will not use any Loan proceeds to purchase or carry "margin stock" within the meaning of Federal Reserve Regulation U (12 C.F.R. §§ 221 et seq., as amended).

 

(n)      Investment Company Act . No Borrower Party is (i) an "investment company" or a company "controlled" by an "investment company," within the meaning of the Investment Company Act of 1940, as amended, (ii) a "holding company" or a "subsidiary company" of a "holding company" or an "affiliate" of a "holding company" or (iii) subject to any other federal or state law or regulation which purports to restrict or regulate its ability to borrow money.

 

(o)      No Financing Statement . There are no effective financing statements covering any of the Collateral, except for those financing statements filed in connection with the Loan.

 

(p)      Location of Collateral . All tangible Collateral is located on the Land.

 

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(q)      Compliance with Applicable Law . Borrower and the Property comply with all Applicable Laws. Borrower has not received notice that it or the Property is violating Applicable Law. Borrower has obtained all requisite approvals, permits and other authorizations from all Governmental Authorities with jurisdiction over the Property, Borrower and Borrower's businesses.

 

(r)      Brokerage Commissions . Any brokerage commission due in connection with any Lease has been paid in full.

 

(s)      Leases .

 

(i)     Borrower is the sole owner of the entire lessor's interest in the Leases and has good title to, and the full right to assign, the Leases and Rent and no other Person has any right, title or interest in the Leases or the Rent. Borrower has not assigned the Leases or the Rent to any Person, other than Lender.

 

(ii)     Borrower has delivered to Lender a true and complete copy of each Lease and a rent roll.

 

(iii)     Each of the Leases is (A) in writing, (B) valid and subsisting, (C) in full force and effect, and (D) except as disclosed to Lender in writing, unmodified.

 

(iv)     After the Effective Date, Borrower has not collected Rent under any Lease more than one month in advance of its due date.

 

(v)     No Tenant has: (A) an option to purchase any of the Property; (B) a right to terminate its Lease without Lender's prior consent; or (C) any defense, counterclaim or set-off to payment of the Rent.

 

(vi)     There are no existing defaults under the Leases; and no event has occurred, which with the passage of time or the giving of notice (or both) would constitute a default under the Leases. Borrower has taken all steps necessary to continue each Lease in force and effect until at least 12 months after the Maturity Date. Borrower has not, without Lender's prior written consent, (A) waived any default under, (B) released any obligated Person under, or (C) agreed to terminate, any Lease.

 

(t)      Collateral . Borrower is the sole owner of, has good title to, and the right to assign, the Collateral. No Person (other than Borrower or Lender) has any right, title or interest in the Collateral. The Leases, Licenses and Contracts are (or will be when issued or entered into) in full force and effect and there are no defaults (or any events which with the passage of time or the giving of notice, would be a default) under the Leases, Licenses or Contracts. Borrower has not assigned, transferred, encumbered, created or permitted any lien upon or charge against the Collateral (except in favor of Lender). Borrower has not done anything which might prevent Lender from enjoying and exercising any of its rights and privileges under the Loan Documents. Borrower has delivered to Lender a complete list, and certified copies, of all Contracts and Licenses. Borrower has furnished to Lender the Plans and Specifications. The Plans and Specifications comply with all Applicable Laws. There are no pending, or (to Borrower's knowledge) threatened or contemplated, special or other assessments against the Property.

 

(u)      Condition of Property . The Property has all necessary utility services and legally sufficient parking required for Borrower's use of the Property. The Property has legal access to all streets, alleys and easements necessary to serve the Property, and all of the streets, alleys and easements use have been completed, dedicated and accepted by the appropriate Governmental Authority. The Property is in good condition and repair with no deferred maintenance. Borrower is not aware of any latent or patent defects in the Property.

 

(v)      Operating Account . Borrower maintains all operating accounts for the Property (including security deposit accounts) with Lender.

 

(w)      Environmental .

 

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(i)      Compliance . Borrower (A) is in compliance with all applicable Environmental Laws, (B) has obtained all Environmental Approvals required to operate its business as presently conducted or as reasonably anticipated to be conducted, (C) has not received any written communication, whether from a Governmental Authority, citizens group, employee or otherwise, that alleges that Borrower or Guarantor has failed to comply with any Environmental Law, and (D) no circumstance exists that may prevent or interfere with Borrower's full compliance in the future with all applicable Environmental Laws.

 

(ii)      No Claim . There is no Environmental Claim pending or threatened against Borrower or the Property.

 

(iii)      No Violation . There are no past or present actions, activities, circumstances, conditions, events or incidents, including the release, emission, discharge or disposal of any Material of Environmental Concern that could form the basis of any Environmental Claims against Borrower or the Property.

 

(iv)      No Materials of Environmental Concern . There are no on-site or off-site locations in which Borrower has stored, disposed or arranged for the disposal of Materials of Environmental Concern. There are no underground storage tanks located on Property. There is no asbestos in the Improvements. No polychlorinated biphenyls (PCBs) are used or stored at the Property.

 

(x)      No Reliance . Borrower has made the decision to enter into the Purchase Agreement and the Hilti Lease based on its own investment decisions and due diligence investigation, and that in connection therewith has not in any manner relied on Lender and agrees that each of such actions is its free and voluntary act.

 

ARTICLE IV.
COVENANTS AND AGREEMENTS OF BORROWER

 

4.1.      Covenants and Agreements . Borrower covenants to Lender as follows:

 

(a)      Change of Name, Identity or Structure . Borrower shall not (i) change its name, identity (including trade name) or its entity structure or governance without notifying Lender of any change in writing at least 30 days prior to the effective date of the change or (ii) sell all or substantially all of its assets or merge or consolidate with any corporation, partnership, limited liability company or other legal entity.

 

(b)      Indemnity . Borrower's obligations under this Section 4.1 (b) survive (1) payment in full of all Indebtedness, (2) maturity of the Loan and (3) termination of this Agreement and the other Loan Documents.

 

(i)     Borrower shall protect, defend, indemnify, reimburse and hold each Indemnified Party harmless for, from and against all Claims of every kind, known or unknown, foreseeable or unforeseeable, which may be imposed upon, asserted against or incurred or paid by an Indemnified Party at any time, arising out of or in any way connected with (A) the Loan, (B) the Property, (C) any Loan Document, (D) bodily injury, death, or property damage occurring in, upon or adjacent to the Property, through any cause whatsoever, (E) Indemnified Party's exercise of remedies under the Loan Documents, (F) any act performed or omitted to be performed by any Indemnified Party under any Loan Document, (G) any Borrower failure to perform its obligations under any Contract or License, (H) any Event of Default, (I) any Environmental Claim, or (J) any Borrower Party violation of Applicable Law, INCLUDING ANY claims ACTUALLY OR ALLEGEDLY ARISING FROM THE ORDINARY, CONTRIBUTORY, COMPARATIVE OR SOLE NEGLIGENCE, OR STRICT LIABILITY, OF ANY INDEMNIFIED PARTY , except to the extent a court of competent jurisdiction determines in a final, non-appealable judgment that the Claims actually arose from the Indemnified Party's gross negligence or intentional misconduct.

 

(ii)     If an Indemnified Party notifies Borrower of any Claims for which Borrower's

 

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indemnity in S ubsection (i) above applies, Borrower shall, on behalf of the Indemnified Party, assume and conduct, with due diligence and in good faith, the investigation and defense of the Claims with counsel selected by the Indemnified Party. If both Borrower and an Indemnified Party are defendants to the Claims and the Indemnified Party has been advised in writing by counsel that there may be legal defenses available to it which are inconsistent with those available to Borrower, then the Indemnified Party may select separate counsel to participate in the investigation and defense of the Claims on its own behalf, and Borrower will pay or reimburse the Indemnified Party for all Attorneys' Fees incurred with respect to separate counsel.

 

(iii)     If an Indemnified Party notifies Borrower of any Claims for which Borrower's indemnity in S ubsection (i) above applies and Borrower fails, within 15 days after being notified of the Claims, to take the actions required under Subsection (ii) above, then (A) notwithstanding to the contrary in any of the Loan Documents, an Event of Default will immediately occur, and (B) the Indemnified Party may contest (or settle) the Claims at Borrower's expense using counsel selected by the Indemnified Party.

 

(c)      Fees and Expenses . Borrower shall pay, immediately upon Lender's demand, all fees (including appraisal fees, filing and recording fees, inspection fees, survey fees, taxes, brokerage fees and commissions, abstract fees, title policy fees, lien or security interest search fees, escrow fees, and Attorneys' Fees) and all other costs Lender or Borrower incurs in connection with (A) the Loan and the Loan Documents, (B) any Event of Default, (C) Lender's (1) exercise of remedies under the Loan Document or (2) protection of the Property, or (D) any modification to the Loan Document.

 

(d)      Waivers .

 

(i)     Borrower, with respect to the Indebtedness, waives, to the extent permitted by the Governing Law: (A) PRESENTMENT FOR PAYMENT ; (B) DEMAND ; (C) NOTICE OF DEMAND, DISHONOR AND NONPAYMENT ; (D) NOTICE OF INTENTION TO ACCELERATE ; (E) NOTICE OF ACCELERATION ; (F) NOTICE OF DISPOSITION OF COLLATERAL ; (G) THE DEFENSE OF IMPAIRMENT OF COLLATERAL ; (H) THE RIGHT TO A COMMERCIALLY REASONABLE SALE OF COLLATERAL ; (I) PROTEST AND NOTICE OF PROTEST ; and (J) DILIGENCE IN COLLECTING, AND BRINGING SUIT AGAINST ANY OTHER P ERSON .

 

(ii)     Borrower further waives and releases, to the extent permitted by the Governing Law, the rights (A) of redemption, valuation, and appraisement of the Property or other Collateral, (B) to (1) marshaling of Borrower's assets (including the Property), (2) the sale in inverse order of alienation, (3) a homestead exemption concerning any of the Collateral, and (C) to any matter to defeat, reduce or affect the Lender's rights under the terms of the Loan Documents to sell the Collateral or collect the full Indebtedness.

 

(e)      Books and Records . Borrower shall keep accurate books and records in accordance with GAAP. Lender and its representatives may, at any time during reasonable business hours, inspect and copy all of Borrower's books and records (including all contracts, statements, invoices, bills and claims for labor, materials and services supplied for the construction and operation of the Improvements).

 

(f)      Financial Statements and other Reports . Borrower shall deliver to Lender the below statements and reports on or before the below delivery deadline. Borrower shall also deliver to Lender any other information, reports or certificates as and when Lender requests.

 

Statement or Report

Frequency

D elivery Deadline

Borrower's audited annual financial statements

Annually

Within [90/120] days after each fiscal year ends

Borrower's financial statements

Quarterly

Within 30 days after each fiscal quarter ends

Guarantor's balance sheet

Annually

Within 90 days after each fiscal year ends

 

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Guarantor's personal financial statement

Annually

Within 90 days after each fiscal year ends

Audited annual financial statements of Hilti

Annually

Within [90/120] days after each fiscal year of Hilti

Confirmation of payment of rent by Hilti and CAM payments under Hilti Lease

Annually

Within 90 days after each anniversary of the Effective Date

Copies of filed federal income tax returns of Guarantor

Annually

Within 30 days after filing

 

All statements and reports must be in scope and detail reasonably satisfactory to Lender. During any Event of Default Period, Lender may require that all statements and reports be prepared, audited and certified (at Borrower's cost and expense) by an independent certified public accountant, acceptable to Lender. Each rent roll must, with respect to each of the Leases, contain: (i) each Tenant's name and address; (ii) rental amount; (iii) square footage of the premises; (iv) security deposit; (v) commencement date; (vi) termination date; (vii) date through which rent is paid; and (viii) the occurrence of any default. Each Guarantor balance sheet must include a detailed global schedule of all real estate interests, directly or indirectly, owned. Borrower shall provide Lender with such additional financial, management, or other information regarding any Borrower Party or the Property, as Lender may request. Upon Lender's request, Borrower shall deliver all items required by this S ubs ection in an electronic format or by electronic transmission reasonably acceptable to Lender.

 

(g)      Compliance Certificate . Borrower shall deliver a Compliance Certificate to Lender on or before the Compliance Certificate Due Date.

 

(h)      Estoppel Certificate . Borrower shall:

 

 

(i)

within 10 Business Days after receiving Lender's request, deliver a certificate stating (or explaining why the statement is false) (A) that the Loan Documents are valid and binding obligations of Borrower, (B) that the Loan Documents are enforceable against Borrower in accordance with their terms, (C) the Principal Amount, (D) that the Loan Documents have not been released, subordinated or modified, (E) the date of the last Loan payment, and (F) that Borrower is entitled to no offsets or defenses against enforcement of the Loan Documents; and

 

 

(ii)

within 10 Business Days after receiving Lender's request, deliver a certificate from each requested Tenant, in form and substance acceptable to Lender, confirming the terms of the Tenant's Leases.

 

(i)      Further Assurances . Borrower shall, on Lender's request and at Borrower's cost promptly: (i) correct any defect concerning the Loan Documents, the Leases or the Collateral; (ii) execute, deliver and file any instrument, and do anything Lender determines to be necessary or desirable to carry out the purposes of the Loan Documents; (iii) take all necessary action to promptly protect the liens or the security interests under the Loan Documents against any Person other than Lender; (iv) take all actions necessary or desirable in Lender's determination to comply with the requirements or requests of any Governmental Authority; and (v) submit to Lender such additional information concerning the Collateral or the Contractors as Lender may reasonably request.

 

(j)      Location and Use of Collateral . All tangible Collateral will be used in the business of Borrower and shall remain in Borrower's control at all times at Borrower's risk of loss.

 

(k)      Insurance Requirements .

 

(i)      Casualty; Business Interruption . Borrower must, at all times, keep the Collateral insured, to the extent available, against damage or loss from all hazards for the full insurable replacement cost of the Collateral (without reduction for depreciation or co-insurance

 

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and without any exclusions or reduction of policy limits for acts of domestic and foreign terrorism and other specified action or inaction). Borrower must, at all times, also keep boiler and machinery insurance, domestic and foreign terrorism coverage and such other insurance for the Collateral as Lender reasonably requires. Borrower must keep the Collateral insured against loss by flood if the Property is, now or in the future, located in an area in which flood insurance is available under Applicable Law. Borrower shall maintain business interruption insurance, including use and occupancy, rental income loss and extra expense, for all periods covered by Borrower's property insurance for a limit equal to twelve (12) calendar months' exposure, all without any exclusions or reduction of policy limits for acts of domestic and foreign terrorism or other specified action or inaction.

 

(ii)      Liability and Other Insurance . Borrower shall maintain: (A) commercial general liability insurance with respect to the Property providing for limits of liability in the amount approved by Lender for both injury to or death of a person and for property damage per occurrence; (B) umbrella liability coverage in the amount and to the extent required by Lender; and (C) other liability insurance Lender reasonably requires from time to time. In addition, Borrower shall maintain (1) worker's compensation insurance and employer's liability insurance covering employees at the Property employed by Borrower (in the amounts required by Applicable Laws), and (2) business interruption insurance.

 

(iii)      Form of Policies . All insurance policies must be fully paid and non-assessable when issued. All insurance policies must contain the provisions, endorsements, and expiration dates that Lender reasonably requires. All insurance policies must (A) be issued by insurance companies (1) authorized to do business in the State, and (2) approved by Lender, (B) if available, include a standard mortgagee clause, without contribution, in the name of Lender, (C) name Lender as an additional insured or loss payee, (D) not be cancellable, amendable or alterable without 30 days' prior written notice to Lender, and (E) include a waiver of subrogation for all liability and workers compensation coverage issued in favor of Lender.

 

(iv)      General . Borrower shall not carry separate or additional insurance concurrent in form or contributing to any loss for which coverage is required under this S ubs ection (k) unless approved by Lender in all respects. If Lender (or a third-party purchaser at or after a foreclosure) acquires title to the Collateral, then all of Borrower's interest in all insurance policies then in force concerning the Collateral will immediately vest in Lender (or the purchaser of the Collateral). Lender's approval of any insurance policy or insurer is not a representation or warranty of (A) the insurer's solvency or (B) the sufficiency of any insurance policy. Borrower shall comply with all insurance policy requirements and restrictions. Borrower will also provide all additional insurance which Lender reasonably requires and approves. If Lender requires, Borrower shall assign to Lender (on forms acceptable to Lender in its discretion) all insurance policies required under the Loan Documents. Any insurance proceeds Lender receives, because of (X) an assignment required under the Loan Documents or (Y) Lender being named loss payee, are Collateral and are not trust funds. If Borrower fails to obtain any insurance policy the Loan Documents require or Lender requires from time to time, then Lender may (without prior notice to Borrower) obtain the required insurance. The cost of any insurance Lender obtains for the account of Borrower will be Additional Costs.

 

(l)      Escrow . As additional security for the Indebtedness and Borrower's obligations under the Loan Documents, Borrower shall, upon Lender's written request, and until the Maturity Date, establish and maintain the Tax and Insurance Escrow Account. Upon such request, Borrower will deposit into the Tax and Insurance Escrow Account a sum equal to all Real Estate Taxes and Insurance Premiums for the then current year, as Lender estimates. Thereafter, on each Interest Payment Date, Borrower shall pay to Lender, which Lender will deposit into the Tax and Insurance Escrow Account, sufficient funds (as Lender estimates) to permit Lender to pay, at least 30 days prior to the due date, the next installments for Real Estate Taxes and Insurance Premiums. Borrower shall ensure that Lender receives, at least 30 days prior to the due date, all invoices for Real Estate Taxes and Insurance Premiums. So long as no Event of Default has occurred and Lender has received all invoices for Real Estate Taxes and Insurance Premiums, Lender shall pay all invoices for Real Estate Taxes and Insurance

 

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Premiums. Any excess amounts in the Tax and Insurance Escrow Account may, at Lender's option and subject to Applicable Law, be retained in the account for future use, applied to the Indebtedness or refunded to Borrower. Borrower shall immediately remit to Lender funds (as Lender determines and demands) sufficient to satisfy any deficiency in the Tax and Insurance Escrow Account. The Tax and Insurance Escrow Account is not, unless otherwise explicitly required by Applicable Law, an escrow or trust fund. The Tax and Insurance Escrow Account will not bear interest. The Tax and Insurance Escrow Account may be commingled with the general funds of Lender. During an Event of Default Period, Lender may apply the Tax and Insurance Escrow Account funds to the Indebtedness as Lender determines.

 

(m)      Operation of Property . Borrower shall operate the Property in accordance with all Applicable Laws and in the same manner as is customary and usual in the operation of comparable properties in the same metropolitan area as the Property. Borrower shall not use or allow the use of the Property in any manner which constitutes a public or private nuisance. Without obtaining Lender's prior written consent, Borrower shall: (i) use all commercially reasonable efforts to oppose any zoning reclassification of the Property, (ii) not seek, or acquiesce to, any zoning reclassification or variance for the Property; (iii) not impose any restrictive covenants or encumbrances upon the Property; (iv) not execute or file any subdivision plat affecting the Property; (v) not consent to any municipality's annexation of the Property; (vi) not permit the Property to be operated as a cooperative or condominium; (vii) not permit any drilling or exploration for, or extraction, removal or production of, minerals from the surface or subsurface of the Property; (viii) not permit any action or inaction which may reasonably be expected to diminish the value of the Property; (ix) not engage another Person to operate or manage the Property; or (x) not permit the Property to be included in any special taxing district.

 

(n)      Repair and Maintenance . Borrower shall keep the Property in good order, repair, condition and appearance. Borrower shall promptly make all necessary repairs and replacements, to the Property. Borrower shall insure that the Property is not deteriorated, misused, abused or wasted. All replacements to the Property must be equal or better than the replaced Property was when it was new. Borrower may not, without Lender's prior written consent: (i) erect any new buildings, structures or other improvements on the Property; (ii) except for the foregoing repairs, remove any Property from the Land; or (iii) make any structural alteration or any other alteration to the Property involving an estimated expenditure of $50,000 or more. Lender (or its designee) may, at Borrower's expense, inspect or examine the Property during normal business hours and without unnecessarily interrupting the Tenants or the operations of the Property. Except during any Event of Default Period, Lender (or its designee) shall give Borrower at least 24 hours advance notice (by any means and not subject to the terms of Section 6.18 below). Borrower shall assist Lender (and its designees) in completing any inspection. Borrower (or its designee) may accompany Lender (and its designee) during any inspection of the Property. If Lender's inspection reveals that repairs to the Property are necessary, then Borrower shall complete all repairs or other work to Lender's reasonable satisfaction within 60 days after Lender delivers written notice of the necessary repairs to Borrower.

 

(o)      Appraisal . At Borrower's expense, Lender may obtain from time to time an Appraisal. The cost for any Appraisal are Additional Costs. Borrower shall cooperate (including providing access to the Collateral) with anyone preparing an Appraisal.

 

(p)      Casualty and Condemnation .

 

(i)      Borrower ' s Obligation . If any Damage or a Taking occurs, then Borrower shall promptly (A) notify Lender of the Damage and take all necessary steps to preserve the Collateral, (B) at Borrower's expense (1) diligently prosecute any Taking proceedings, (2) consult and cooperate with Lender in handling the Taking proceedings, and (C) subject to Sections 4.1 (p) (ii) (iv) below and regardless of whether the Net Proceeds are, or Award is, sufficient, commence and diligently (but, unless Lender approves otherwise in writing, no later than 90 days after the Damage occurs) complete the Restoration. Borrower shall comply with Lender's reasonable requirements to preserve the Collateral. Borrower may not settle any Taking proceedings without Lender's prior written consent. Lender may (but is not obligated

 

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to) participate in all Taking proceedings. Borrower shall sign and deliver all instruments Lender requests in connection with Lender's participation in any Taking proceeding. All of Lender's reasonable costs in any Taking proceeding are Additional Costs.

 

(ii)      Lender ' s Rights . Borrower will remain liable for the Indebtedness outstanding after Lender applies any Net Proceeds or Award. Lender will not pay interest on any Net Proceeds or Award Lender holds. If Borrower receives any insurance proceeds for the Damage or an Award, then Borrower shall promptly deliver all of the proceeds or Award to Lender, without deduction. Notwithstanding anything in the Loan Documents, at law or in equity to the contrary, the Net Proceeds and Award will not be trust funds and Lender may dispose of the Net Proceeds or Award as permitted in the Loan Documents. Borrower assumes all risk of loss from any Damage or Taking.

 

a.     If any Damage occurs which is, at least partially, covered by insurance, then: (A) if Borrower does not promptly make an insurance claim for the Damage, then Lender may, but is not obligated to, make the insurance claim; (B) if Lender makes an insurance claim, then Borrower authorizes and empowers Lender to settle, adjust, or compromise the claim; (C) Borrower authorizes and directs the insurer to make any Damage payment directly to Lender; and (D) unless otherwise expressly set forth in Subsection (iii) below, Lender may apply the Net Proceeds to the Indebtedness in any order it determines.

 

b.     Borrower assigns all Awards to Lender. All Awards must be paid to Lender. Lender may (A) collect, receive, and give receipt for, any Award, (B) accept any Award in any amount without question, and (C) appeal any judgment, decree, or Award. Borrower shall sign and deliver all instruments Lender requests to evidence Borrower's assignments and authorizations in this Subsection .

 

(iii)      Application of Net Proceeds or Award . Except during an Event of Default Period, Lender shall make the Net Proceeds or the Award available to Borrower for Restoration if: (A) prior to beginning the Restoration, in Lender's determination, the Restoration is practical and will be completed (1) within a reasonable time and (2) at least 90 days prior to the Stated Maturity Date; (B) prior to beginning the Restoration, in Lender's determination, Borrower has sufficient business interruption insurance; (C) prior to beginning the Restoration, Borrower enters into Contracts acceptable to Lender for Restoration; (D) prior to beginning the Restoration, if applicable, all Tenants have waived any termination rights arising from the Damage or Taking; (E) prior to the beginning and until completion of the Restoration, Borrower has deposited and continuously maintains all Additional Funds with Lender; and (F) prior to the beginning and until completion of the Restoration, in Lender's determination, once the Restoration is complete, the Debt Coverage Ratio will exceed 1.25:1.00. Lender may (as Lender determines in its sole discretion) apply against the Indebtedness any Net Proceeds or Award in excess of the Restoration costs.

 

(iv)      Disbursement of Net Proceeds or Award . If Net Proceeds or an Award are available for Restoration, then Lender shall, in its sole discretion, establish a disbursement procedure (including lien releases and title insurance) and periodically make the Award or Net Proceeds (and the Additional Funds, if any) available to Borrower (in installments).

 

(v)      Effect on Indebtedness . Prior to, during and after any Damage or Taking, Borrower must continue to pay the Indebtedness and perform its obligations under the Loan Documents. Lender's receipt of Net Proceeds, Rent Loss Proceeds, Additional Funds or an Award does not reduce the Indebtedness until Lender actually applies Net Proceeds, Rent Loss Proceeds, Additional Funds or the Award to the Indebtedness.

 

(q)      Title Insurance . On or before the Effective Date, Borrower shall furnish to Lender, at Borrower's expense, the Loan Title Policy. If the Loan Title Policy becomes invalid, or the insurer becomes insolvent or is placed in receivership, then Borrower shall, within 30 days after Lender's demand, furnish to Lender, at Borrower's expense, a substitute Loan Title Policy.

 

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(r)      Collateral . Until the Maturity Date, Borrower:

 

(i)     shall faithfully perform each of its affirmative and negative obligations under the Additional Collateral and the Leases;

 

(ii)     shall promptly enforce against all Persons (other than Lender) the terms of the Additional Collateral and the Leases;

 

(iii)    may not, without Lender's prior written approval, (A) waive, modify or amend any terms of the Additional Collateral or the Leases, (B) release or discharge any Person from its obligations under any of the Additional Collateral or the Leases, or (C) terminate any of the Licenses, Contracts or Leases;

 

(iv)    may not enter into any new Contracts without Lender's prior written approval;

 

(v)     subject to the terms of the Security Instrument, may not enter into any new Leases without Lender's prior written approval;

 

(vi)   shall, unless Lender otherwise agrees in writing, assign to Lender any letter of credit securing any Tenant Lease obligations; and

 

(vii)     shall give Lender prompt notice of any actual or alleged default under the Additional Collateral or the Leases along with a copy of any written notice Borrower receives concerning the actual or alleged default.

 

(s)      Litigation . Borrower will promptly furnish to the Lender written notice of any litigation in which any Borrower Party is involved and any litigation affecting the Property or relating to the Improvements, all only to the extent that such litigation would materially adversely affect any Borrower Party's ability to perform under the Loan Documents to which such Borrower Party is a party or materially adversely impair the ability of Borrower to carry on its business substantially as now conducted or contemplated.

 

(t)      Indebtedness . Borrower shall not incur any indebtedness (including any contingent indebtedness) other than with Lender in excess of $500,000 in the aggregate.

 

(u)      Limitation on Dividends . Borrower shall not declare, make or pay any dividend or distribution, or set apart any sum or any of its assets for the payment of any dividend of distribution, if a Default or Event of Default exists, or such action would be reasonably expected to result in a Default or Event of Default (including pro forma compliance with the Debt Coverage Ratio and the Debt-to-Worth Ratio).

 

(v)      Hilti Lease . Borrower shall not modify the Hilti Lease, terminate the Hilti Lease or waive any default by Hilti under the Hilti Lease without the prior written consent of Lender.

 

ARTICLE V.
DEFAULTS AND REMEDIES

 

5.1.      Event of Default . The term " Event of Default " means that:

 

(a)      Monetary Obligations . Borrower fails to pay: (i) prior to the Maturity Date, any Indebtedness within 5 days after it is due and payable; or (ii) all of the Indebtedness on the Maturity Date; or

 

(b)      Representations . Any Borrower Party representation to Lender in the Loan Documents is false or misleading in any material respect; or

 

(c)      Bankruptcy Event . A Bankruptcy Event occurs; or

 

(d)      Third Party Matters . Any Borrower Party (i) is in default under any agreement (other than the Loan Documents), (ii) fails to pay any final money judgment, (iii) becomes party to any proceeding, or (iv) fails to comply with any Applicable Laws, which may (in Lender's determination) materially and adversely impair (A) the Borrower Party's ability to perform its obligations under the

 

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Loan Documents, or (B) the value of, or Lender's rights in, the Collateral; or

 

(e)      Transfers; Liens; Debt . Without Lender's prior written consent (which Lender may withhold for any reason or condition upon any event or consideration, as Lender determines in its sole discretion), Borrower:

 

(i)     sells, leases (except as expressly permitted in the Loan Documents), exchanges, assigns, transfers, conveys or otherwise disposes of any part of, or any interest in, the Property, or legal or equitable title to any part of, or any interest in, the Property is vested in any Person other than Borrower or Lender, by operation of law or otherwise, whether voluntary or involuntary; or

 

(ii)     creates or permits any (voluntary or involuntary) lien, whether statutory, constitutional or contractual (except for any lien for Real Estate Taxes on the Collateral which are not delinquent), security interest or other encumbrance, conditional sale or other title retention document, against or covering any portion of the Collateral; or

 

(f)      Death; Dissolution; Change in Ownership or Control . Any Borrower Party dies or becomes legally incapacitated, dissolves, liquidates, merges or consolidates; or any interest in any Borrower Party is, voluntarily or involuntarily, assigned, encumbered, or otherwise transferred; or, any time after the Effective Date, the Person Controlling or owning Borrower changes; or

 

(g)      Financial Reporting . Lender does not receive any item on the date it is due under Section 4.1(f) ; or

 

(h)      DCR Test Default . A DCR Test Default occurs; or

 

(i)      DTW Test Default . A DTW Test Default occurs; or

 

(j)      Hilti Lease . Hilti is 30 or more days past due on rent or any other payment to Borrower, as landlord, under the Hilti Lease; or

 

(k)      Loan to Value Default . A Loan to Value Default occurs; or

 

(l)      Non-Monetary Obligations . Any Borrower Party fails, on or before the expiration of the Grace Period, to timely perform any of its obligations in any Loan Document, other than those failures specifically governed by any other (i) Subsection of this Section 5.1 , or (ii) Section of this Agreement or the Loan Documents.

 

5.2.      Remedies .

 

(a)      Pre-Event of Default . Lender may file, appear in, or defend any Loan Matter. Lender may employ counsel (including in-house counsel) and incur any expenses, including Attorneys' Fees, in connection with any Loan Matter. If Lender incurs any expense in connection with any Loan Matter, then the expenditure will bear interest at the Default Rate from the date incurred until the date on which Borrower fully repays the expenditure along with all accrued interest. The expenditure and all accrued interest are Indebtedness. Borrower shall immediately pay to Lender all amounts due under this Subsection upon Lender's demand.

 

(b)      Post-Event of Default . Subject to any limitations under the Governing Law and the applicable Laws of the State, during any Event of Default Period:

 

(i)     Lender may declare all Indebtedness in its entirety to be immediately due and payable or exercise any right at law or in equity, or any remedy expressly provided in any of the Loan Documents, including foreclosing any liens or security interests;

 

(ii)     Lender may: (1) enforce all Additional Collateral terms and exercise all rights under the Additional Collateral; (2) enter into, terminate, renew or modify Contracts or Licenses, and make concessions to Governmental Authorities; and (3) exercise all proprietary rights in, and fully utilize, the Plans and Specifications.

 

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(iii)     Contractors and Governmental Authorities may: (1) continue work under the Additional Collateral under the sole direction of Lender; and (2) permit Lender to retain and use the Additional Collateral for any purpose Lender deems appropriate. In furtherance of the foregoing, any Person may rely on an affidavit from any officer, agent or attorney of Lender confirming that an Event of Default Period exists.

 

By exercising any rights under the Loan Documents, Lender does not (unless Lender expressly agrees in writing) become (i) a party to any of the Additional Collateral, or (ii) liable to any Person, EVEN IF THE  LIABILITY ACTUALLY OR ALLEGEDLY AROSE FROM THE ORDINARY, CONTRIBUTORY, COMPARATIVE OR SOLE NEGLIGENCE, OR STRICT LIABILITY OF LENDER . Lender will only be liable for liabilities if a court of competent jurisdiction determines in a final, non-appealable judgment that the liability arose from Lender's gross negligence or intentional misconduct.

 

Lender's rights under this Section are in addition to any other rights and remedies Lender may have under the Loan Documents, at law, in equity or otherwise. Lender may (but will not be obligated to) also:

 

(i)     at Borrower's sole cost and expense, take whatever action Lender deems necessary or appropriate, including the use of legal proceedings, to (A) cause Borrower to vacate the Property, and (B) take possession of the Property;

 

(ii)     at Borrower's sole cost and expense, employ security watchmen to protect the Property; or

 

(iii)     at Borrower's sole cost and expense, perform or cause to be performed any covenant or agreement of Borrower under any of the Loan Documents.

 

(c)      Costs . All sums Lender incurs in connection with exercising its rights under the Loan Documents will be (1) additional Indebtedness and will bear interest from the date on which Lender incurs the sum until the date on which the sum is repaid in full at the Default Rate, and (2) secured by the Loan Documents. In addition to Lender's rights under the Loan Documents, Lender will be automatically subrogated to all rights of any Person receiving any sum from Lender.

 

ARTICLE VI.
GENERAL CONDITIONS

 

6.1.      Waiver . Lender may, without impairing its rights under the Loan Documents (a) waive or not enforce any term of the Loan Documents (b) release any part of the Collateral from the lien or security interest of the Loan Documents or (c) release any Person, directly or indirectly, liable for the Indebtedness or any covenant in the Loan Documents, without releasing the liability of any other Person.

 

6.2.      Lender's Action or Inaction . The liens, security interests or other rights of Lender in any Loan Document will not be impaired by any indulgence, moratorium or release that Lender may grant, including (a) any renewal, extension, increase or modification which Lender may grant with respect to any Indebtedness, (b) any surrender, compromise, release, renewal, extension, exchange or substitution which Lender may grant in respect of the Property, or any part thereof or any interest therein, or (c) any release or indulgence granted to any endorser, guarantor or surety of any Indebtedness. If Lender takes additional security, then Lender will not be deemed to have released or impaired Lender's liens, assignments, security interests or other rights in and to the Property or under the Loan Documents and Borrower's, Guarantor's and any other endorser's, guarantor's or other surety's liability will not be affected, and the rights of any permitted junior lienholder will not be improved, thereby. Lender may resort to any Collateral (or to any other security now existing or hereafter given to secure payment of the Indebtedness) in such order as Lender deems best (in its sole discretion) without waiving any of the rights, benefits, liens or security interests evidenced by the Security Instrument.

 

6.3.      Lender's Rights . Lender may waive any Event of Default without waiving any other prior or subsequent Event of Default. Lender may remedy any Event of Default without waiving the Event of Default remedied. Lender's failure to exercise (in any period of time) any right, power or remedy after any Event of Default will not be a waiver of (i) any Event of Default or (ii) Lender's right to exercise any power or remedy at

 

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a later date. Lender's single or partial exercise of any right, power or remedy under the Loan Documents will not exhaust the same or preclude any other or further exercise thereof, and every such right, power or remedy under any of the Loan Documents may be exercised at any time and from time to time. (x) The Loan Documents will not be modified, (y) no waiver under the Loan Documents will be granted, and (z) Lender will not have consented to Borrower's departure from any term of the Loan Documents, unless Lender has executed such a written (a) modification, (b) waiver, or (c) consent, and any such modification, waiver or consent is effective only in the specific instance and purpose for which it was given and to the extent specified in writing. Borrower will not be entitled to any additional notice or demand under the Loan Documents, unless specified therein, regardless of whether Lender has given Borrower any notice or made any demand on Borrower which was not expressly required under the terms of the Loan Documents. Lender may accept, on account only, any payment in an amount less than the amount then due on the Indebtedness without in any way affecting the existence of an Event of Default.

 

6.4.      Third Party Rights . No Person, other than Lender, the Indemnified Parties and Borrower is a beneficiary of the Loan Documents. Lender makes no representations and assumes no duties or obligations to any Person concerning the Improvements.

 

6.5.      Satisfaction of Condition; Time . Lender may freely establish to its satisfaction (in its absolute discretion) the existence (or nonexistence) of any fact actually or implicitly required to satisfy any condition of this Agreement. Time is of the essence for the Loan Documents.

 

6.6.      Assignment; Loan Participations .

 

(a)     Notwithstanding anything to the contrary in the Loan Documents, Borrower may not assign its rights under any of the Loan Documents without the prior written consent of Lender. Any Borrower assignment without Lender's written consent will (i) be an immediate Event of Default, (ii) relieve Lender from all further obligations under the Loan Documents, and (iii) at Lender's option, be null and void.

 

(b)     Lender may assign, sell or offer to assign or sell interests in the Loan or any portion of the Loan Documents and disseminate to any purchaser, assignee or prospective purchaser or assignee any information Lender has pertaining to the Loan, including credit information on Borrower Parties and any of their respective principals. If Lender makes any assignment or sells any interest in the Loan, then Borrower shall make all modifications, at Lender's or its purchaser's or assignee's expense, to this Agreement as will facilitate Lender's sale or assignment, provided that no modification will materially add to Borrower's obligations under the Loan Documents.

 

6.7.      Heirs, Successors and Assigns . The Loan Documents (i) are binding upon Borrower, and its heirs, devisees, representatives, successors and permitted assigns, including all of Borrower's successors-in-interest in and to all or any part of the Property, (ii) inure to the benefit of Lender and the Indemnified Parties, and their respective successors, substitutes and assigns, and (iii) will constitute covenants running with the Land. All references in this Agreement to Borrower, Lender or Indemnified Parties will include all of their respective heirs, devisees, representatives, successors, substitutes and permitted assigns.

 

6.8.      Exercise of Rights and Remedies . Lender may exercise each right and remedy under the Loan Documents, at law or in equity at any time and from time to time. All of Lender's rights and remedies under the Loan Documents, at law or in equity are separate, distinct and cumulative. Lender's exercise of any right or remedy under the Loan Documents, at law or in equity will not preclude Lender from later exercising the same right or remedy, or from exercising any other right or remedy under the Loan Documents, at law or in equity.

 

6.9.      Headings . The headings of the sections and subsections of this Agreement are for convenience of reference only and will not affect the scope or meaning of the sections of this Agreement.

 

6.10.      Inconsistency . If there are any inconsistencies between this Agreement and the other Loan Documents, then this Agreement will control all inconsistencies, except those inconsistencies necessary to create or preserve a valid lien upon or security interest in the Collateral. The Security Instrument will control all inconsistencies among the Loan Documents concerning the creation, preservation, perfection and foreclosure of

 

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all liens upon or security interests in the Collateral.

 

6.11.      Applicable Law . The Loan Documents and the rights and obligations of Borrower and Lender are in all respects governed by, and construed and enforced in accordance with the Governing Law (without giving effect to its principles of conflicts of law), except for those terms of the Security Instrument pertaining to the creation, perfections, validity, priority or foreclosure of the liens or security interests on the Property located within the State, which terms will be governed by, and construed and enforced in accordance with the laws of the State (without giving effect to its principles of conflicts of law).

 

6.12.      Forum; Service . BORROWER IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN TULSA, OKLAHOMA, OVER ANY PROCEEDING ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS . BORROWER AGREES THAT, IN ADDITION TO ANY METHOD OF SERVICE UNDER APPLICABLE LAW, ALL SERVICE OF PROCESS IN ANY PROCEEDING RELATING TO THE LOAN DOCUMENTS AND FILED IN ANY STATE OR FEDERAL CO URT SITTING IN TULSA, OKLAHOMA, MAY BE SENT AND GIVEN AS SET FORTH IN SECTION 6.18 .

 

6.13.      Usury . Lender and Borrower intend that the Loan Documents strictly comply with applicable usury law. Therefore, Lender and Borrower agree that: (i) none of the terms of the Loan Documents create a contract to pay for the use, forbearance or detention of money, or interest at a rate in excess of the Maximum Rate; (ii) no Borrower Party will ever be obligated or required to pay interest on the Indebtedness or any other sums due under the Loan Documents at a rate in excess of the Maximum Rate; and (iii) this Section controls over all other provisions of the Loan Documents which may be in conflict with this Section . Lender expressly disavows any intention to charge or collect excessive unearned interest or finance charges on any portion of the Indebtedness. If at any time the interest received for the Indebtedness exceeds the Maximum Rate, then Lender will, at its option, either refund to Borrower the amount of the excess or credit the amount of the excess against the Principal Amount. Borrower agrees that the Loan is not usurious and agrees that if, at any time, Borrower believes that the Loan is usurious, it shall give Lender (a) notice of the condition and (b) 60 days in which to make an appropriate refund or other adjustment, if necessary, to correct the condition.

 

6.14.      Severability . If any term of the Loan Documents is unenforceable or invalid, then those terms will either be (i) removed from the Loan Documents, or (ii) if possible (and acceptable to Lender), reformed by the court finding the term unenforceable or invalid to be a valid and enforceable term which is as similar as legally possible to the invalid or unenforceable term. All remaining portions of the Loan Documents will remain enforceable and valid.

 

6.15.      Counterparts . The Loan Documents may be executed in any number of counterparts with the same effect as if all signers executed the same instrument. All counterparts of each Loan Document must be construed together and will constitute one instrument.

 

6.16.      Joint Liability . If more than one Person is included in the definition of "Borrower", then each Person included in the definition of "Borrower" will be jointly and severally liable for Borrower's obligations under this Agreement.

 

6.17.      Modification or Termination . The Loan Documents may only be amended, modified or terminated by a written instrument executed by Lender and each Borrower Party (who is a party to the Loan Document being amended, modified or terminated). Notwithstanding the foregoing, Borrower agrees that it will be bound by any written amendment or modification of the Loan Documents between Lender and any subsequent owner of the Collateral, with or without notice to Borrower, and Borrower's obligations under the Loan Documents will not be impaired because of any such amendment or modification. This Section does not permit Borrower to transfer any of the Collateral.

 

6.18.      Notice . Except for notices which are required to be given differently by Applicable Law, any notice or communication required or permitted under the Loan Documents must be made in writing and sent by (a) personal delivery, (b) expedited delivery service with proof of delivery, or (c) United States Mail, postage prepaid, registered or certified mail, addressed as follows:

 

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To Lender:

MidFirst Bank
2201 S. Utica Place

Tulsa, OK 74114

Attn: Marc Short, Senior Vice President

 

 

With a copy to:

MidFirst Bank
Legal Department
501 NW Grand Blvd.
Oklahoma City, OK 73118

 

 

To Borrower:

10302 E. 55th Place

Tulsa, OK 74146

Attn: Randall W. White, Chairman, President and CEO

 

or to such other address(es) as Lender or Borrower may designate in writing and deliver in accordance with this Section . Any change of address will be effective on the 5th Business Day after notice is given pursuant to the terms of this Section . Any notice or communication sent in accordance with this Section will be deemed to be given (i) at the time of personal delivery, or (ii) if sent by delivery service or mail, as of the date of the first attempted delivery at the address and in the manner provided in this Section . Borrower consents to Lender recording any telephone communications between Lender and Borrower.

 

6.19.      Signatures . The Loan Documents may be executed by Facsimile Signature and delivered by electronic means, including a PDF (or other format) attachment to an email or fax. Subject to Applicable Law, any Loan Documents executed by Facsimile Signature will have the same force and effect as a Loan Document containing an original signature and will be binding on all parties to the Loan Documents. Lender may require that any Loan Document with a Facsimile Signature be confirmed by an original signature. However, Lender's failure to request or Borrower's failure to deliver any original signature confirmation will not limit the effectiveness of any Loan Document executed by Facsimile Signature. In this Section , " original signature " means a manually signed document by a natural person, as opposed to an electronic signature, and " Facsimile S ignature " means the signature of a natural person produced by mechanical means, printer or stamp.

 

6.20.      No Partnership . Borrower and Lender are not partners or joint venturers with respect to the Property. Nothing in the Loan Documents is intended to create any partnership, joint venture or association between Borrower and Lender.

 

6.21.      Waiver of Jury Trial . BORROWER AND LENDER WAIVE ANY RIGHT TO A JURY TRIAL CONCERNING ANY DISPUTE ARISING FROM OR IN CONNECTION WITH ANY OF THE LOAN DOCUMENTS. BORROWER AND LENDER HAVE BOTH BEEN ADVISED BY COMPETENT COUNSEL IN CONNECTION WITH THIS WAIVER .

 

6.22.      Consent of Lender; Approvals . Except as otherwise expressly provided in the Loan Documents, if Lender's approval, consent or judgment is required under any Loan Document, then Lender may, in its sole discretion, exercise its judgment in granting or denying its approval or consent regardless of the reasonableness of the request or Lender's judgment.

 

6.23.      Imaging . Lender may image and destroy the executed, original Loan Documents. Borrower waives any right it has, or may have in the future, to claim that the imaged copies of the Loan Documents are not originals or the best evidence of the Loan Documents.

 

6.24.      Entire Agreement . The Loan Documents constitute the entire understanding and agreement between Borrower and Lender with respect to the transactions arising in connection with the Loan. The Loan Documents supersede all prior written or oral understandings and agreements between Borrower and Lender with respect to the Loan.

 

6.25.      Damage Waiver . Borrower (and any other Borrower Party, who now or hereafter executes a Loan Document) and Lender agree that neither party will be liable to the other party or any other Person for any punitive, exemplary, consequential or other special damages which may actually or allegedly arise from the

 

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Loan, the Loan Documents or the Collateral, INCLUDING ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ACTUALLY OR ALLEGEDLY ARISING FROM THE ORDINARY, CONTRIBUTORY, COMPARATIVE OR SOLE NEGLIGENCE, GROSS NEGLIGENCE OR STRICT LIABILITY, OF ANY BORROWER PARTY OR LENDER . The foregoing waiver does not limit or otherwise impair the terms of Section 2.1(b) or Section 4.1(b) above.

 

[ REMAINDER OF PAGE LEFT INTENTIONALLY BLANK ]

 

 

 

 

 

 

 

 

 

 

 

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Borrower and Lender have executed this Agreement to be effective on the Effective Date.

 

EDUCATIONAL DEVELOPMENT CORPORATION,

a Delaware corporation

 

By:                                                                                  

Name: Randall W. White

Title:   Chairman, President and CEO

 

 

 

 

 

 

 

 

Borrower's Signature Page

to

Loan Agreement

 

 

 

 

 

 

MIDFIRST BANK, a federally chartered savings association

 

 

By:                                                                

Name: Marc Short

Title:   Senior Vice President

 

 

 

 

 

 

 

Lender's Signature Page

to

Loan Agreement

 

 

 

 

 

 

EXHIBIT A

 

Definition of Terms

 

" Additional Collateral " means, collectively, any (a) Licenses, (b) Contracts, (c) Plans and Specifications, (d) Net Proceeds, (e) Rent Loss Proceeds, and (f) Additional Funds.

 

" Additional Costs " means (1) all costs, losses and expenses Lender (in its reasonable determination) incurs (at any time) from (i) making or maintaining the Loan, (ii) protecting the Collateral, or (iii) enforcing its remedies under the Loan Documents during an Event of Default Period, and (2) any reduction in any amount (including lost profits) to which Lender is entitled under the Loan Documents. Additional Costs includes costs which (a) subject Lender to any tax, duty or other charge with respect to the Loan, or changes the basis of taxation of any amounts payable to Lender under the Loan (other than taxes imposed on the overall net income of Lender or of its applicable lending office by the jurisdiction in which Lender's principal office or such applicable lending office is located) or (b) impose or modify any reserve, special deposit or similar requirements relating to Lender. For purposes of this definition, the term "Lender," at Lender's option, includes Lender's present and future participants in the Loan.

 

" Additional Funds " means the difference, in Lender's determination from time to time, between (i) the cost to complete the Restoration and (ii) the Net Proceeds or Award, as the case may be.

 

" Agreement " means this Loan Agreement as, from time to time, amended, modified or restated.

 

" Amortized Installment Amount " means an amount which would fully amortize the stated principal amount of Tranche B of the Loan, together with interest thereon at the initial interest rate determined in accordance with Section 2.1(a)(i), over an assumed 20-year amortization period commencing as of the Effective Date. Beginning December 1, 2016, and on each December 1 thereafter, the required monthly installment amount shall be re-determined, effective with the installment payment due on the following January 1, with the re-determined installment amount being an amount which would fully amortize the then-unpaid principal balance of Tranche B of the Loan, together with interest thereon at the fluctuating interest rate determined in accordance with Section 2.1(a)(i) as of such re-determination date, over the remainder of such assumed 20-year amortization period.

 

" Applicable Bankruptcy Law " means Title 11 of the United States Code, any regulation or rule promulgated thereunder or any other present or future insolvency, bankruptcy or similar law, including laws concerning assignments for the benefit of creditors, appointment of a receiver, trustee, custodian or liquidator, under the laws of the United States or the State of Oklahoma.

 

" Applicable Law " means all Laws, covenants, conditions and restrictions (including private restrictive covenants) and other requirements relating to or affecting Borrower, Guarantor, Lender or the Property.

 

" Appraisal " means collectively (a) an MAI appraisal of the Property ordered by Lender, dated within 90 days of its use, and prepared by a licensed appraiser satisfactory to Lender, (b) any appraisal of the Property acceptable to Lender in its sole discretion, (c) an environmental site assessment of the Property acceptable to Lender in its sole discretion, and (d) any condition report of the Property of the Property acceptable to Lender in its sole discretion.

 

" Attorney s' Fees " means all reasonable fees, costs and expenses of attorneys (including allocated costs of in-house counsel), other professional consultants and experts.

 

" Award " means all condemnation awards, judgments, decrees, or proceeds of any sale in lieu of condemnation.

 

" Bankruptcy Event " means any of the following events: (i) any Borrower Party files a petition for relief under Applicable Bankruptcy Law; (ii) any party (other than Lender) files an involuntary petition for relief under Applicable Bankruptcy Law against any Borrower Party and such petition is not dismissed within 60 days after being filed; (iii) a court of competent jurisdiction enters an order for relief under any Applicable Bankruptcy Law which is related in any way to a petition filed under (i) or (ii) above; (iv) any Borrower Party, at any time, requests or consents to any composition, rearrangement, extension, reorganization or other relief of any debtor;

 

Exhibit A

to

Loan Agreement

 

 

 

 

 

(v) any Borrower Party (A) is generally not paying its debts as they become due, (B) is insolvent, (C) fraudulently transfers any of its assets to the detriment of any of its creditors, (D) makes an assignment for the benefit of creditors, or (E) admits in writing that it is unable to pay its debts as they become due; or (vi) a receiver, trustee or custodian is appointed for, or takes possession of, all or substantially all of a Borrower Party's assets or any of the Property, either in a proceeding a Borrower Party brings, or any other Person (except for Lender) brings against a Borrower Party, and any such appointment is not discharged or such possession is not terminated within 60 days after commencing, or the Borrower Party consents to or acquiesces in such appointment or possession (unless such consent or acquiescence is in connection with any Lender initiated proceeding). A Bankruptcy Event may exist even if an Event of Default cannot be declared because of Applicable Bankruptcy Law.

 

" Borrower " means Educational Development Corporation, a Delaware corporation, and its successors and permitted assigns.

 

" Borrower Party " means, collectively, Borrower, Guarantor, any general partner or managing member of Borrower or Guarantor, and any general partner or managing member in any partnership or limited liability company that is a general partner or managing member of Borrower or Guarantor.

 

" Business Day " means each day of the week which is not a Saturday, Sunday or a holiday recognized and observed by the Board of Governors of the Federal Reserve System.

 

" Claims " means any claim (including any Environmental Claim or any other claims arising under Environmental Laws), demands, liabilities, losses, damages, causes of action, judgments, penalties, fines, costs and expenses (including Attorneys' Fees, and of the investigation and defense of any claim, whether or not such claim is ultimately defeated, and the settlement of any claim or judgment including all value paid or given in settlement).

 

" Collateral " means the Property and all of Borrower's other assets which are ever situated on, derived from or used in connection with the Property, whether now owned or hereafter acquired, including the Leases and all proceeds from such assets of Borrower.

 

" Compliance Certificate " means a certificate in the form set forth in Exhibit C of this Agreement and executed by the Controller (or equivalent position) on behalf of Borrower in favor of Lender.

 

" Compliance Certificate Delivery Date " means each date on which (1) Borrower delivers a Compliance Certificate to Lender, and (2) if Borrower fails to deliver a Compliance Certificate to Lender, then the Compliance Certificate Due Date.

 

" Compliance Certificate Due Date " means the [30th / 45th] calendar day following the end of each fiscal quarter. If the Compliance Certificate Due Date is on a day which is not a Business Day, then the Compliance Certificate Due Date will be the next Business Day.

 

" Contract Rate " means a per annum rate of interest equal to the lesser of (i) [__].0%, and (ii) the Maximum Rate.

 

" Contractors " means, collectively, all parties with whom or to whom the Contracts have been made or are given.

 

" Contracts " means all contracts, subcontracts, agreements, site development agreements, service agreements, management agreements, warranties and purchase orders, together with any and all renewals, extensions and modifications thereof and all amendments, exhibits and addenda thereto, which have been or will be executed by or on behalf of Borrower, or which have been assigned to Borrower, in connection with the acquisition, use, operation or maintenance of the Property or the construction of improvements on the Property.

 

" Control " or " controls " means, with respect to Borrower, the power to direct the management and policies of Borrower, directly or indirectly, whether through the ownership of voting securities or other beneficial interests, by contract or otherwise; and the terms " Controlling " and " Controlled " have meanings correlating to the foregoing.

 

" Damage " means any damage to, or loss or destruction of, the Property.

 

Exhibit A

to

Loan Agreement

 

 

 

 

 

" D CR Test Default " means that, as of the last day of any fiscal quarter, the Debt Coverage Ratio is less than 1.25:1.00.

 

" DTW Test Default " means that, as of the last day of any fiscal quarter, the Debt to Worth Ratio is greater than 3.00:1.00.

 

" Debt Coverage Ratio " means, as of any date of determination, the ratio that Lender reasonably determines on a trailing 12-month basis of (i) Borrower's net income, plus interest expense, plus depreciation and amortization expense, less dividends, to (ii) Debt Service. Upon request by Lender, an officer of Borrower shall certify, in detail satisfactory to Lender, documentation of such amounts, and such amounts shall not be effective until approved by Lender.

 

" Debt to Worth Ratio " means, as of any date of determination, the ratio that Lender reasonably determines of Borrower's total liabilities to Borrower's tangible net worth.

 

" Debt Service " means Borrower's current maturities of long term indebtedness and capital leases plus interest expense for such period.

 

" Default Rate " means a per annum rate of interest equal to the lesser of (i) the rate determined in accordance with Section 2.1(a) plus 5.0%, and (ii) the Maximum Rate.

 

" Dollars " and " $ " means lawful money of the United States of America, which at the time of payment is legal tender for the payment of all public and private debts.

 

" Effective Date " means the date on which each condition set forth on Exhibit D of this Agreement is satisfied.

 

" Environmental Approvals " means any permit, license, approval, ruling, variance, exemption or other authorization required under applicable Environmental Laws.

 

" Environmental Claim " means, with respect to any Person, any notice, claim, demand or similar written communication by any other Person alleging potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, fines or penalties arising out of, based on or resulting from (a) the presence, or release into the environment, of any Material of Environmental Concern at any location, whether or not owned by such Person or (b) circumstances forming the basis of any violation (or alleged violation) of any Environmental Law.

 

" Environmental Laws " means all federal, state and foreign laws and regulations relating to pollution or protection of human health or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including laws and regulations relating to emissions, discharges, releases or threatened releases of Materials of Environmental Concern, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Materials of Environmental Concern. The term "Environmental Laws" includes the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations, guidelines and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Substances Transportation Act; the Resource Conservation and Recovery Act (including Subtitle I relating to underground Storage Tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act. The term "Environmental Law" also includes any present and future federal, state and local laws, statutes, ordinances, rules, regulations, guidelines and the like, as well as common law, conditioning transfer of property upon a negative declaration or other approval of a Governmental Authority of the environmental condition of the Property; requiring notification or disclosure of any releases of any Material of Environmental Concern or other environmental condition of the Property to any Governmental Authority or other Person, whether or not in connection with transfer of title to or interest in the Property; or imposing conditions or requirements in connection with permits or other

 

Exhibit A

to

Loan Agreement

 

 

 

 

 

authorization for lawful activity.

 

" ERISA " means, as amended, the Employee Retirement Income Security Act of 1974, as amended, and all rules, regulations and guidance promulgated thereunder.

 

" Event of Default " has the meaning set forth in Section 5.1 .

 

" Event of Default Period " means the period beginning on the occurrence of an Event of Default and ending on the cure of such Event of Default and any other Events of Default outstanding.

 

" GAAP " means those generally accepted accounting principles and practices recognized from time-to-time by the Financial Accounting Standards Board (or any generally recognized successor). Borrower, Guarantor and all parties who must deliver any financial information to Lender under this Agreement or any other Loan Document must consistently apply GAAP to all statements and information delivered or provided, or otherwise made available, to Lender.

 

" Governing Law " means all United States (applicable to transactions in the State of Oklahoma) and Oklahoma laws, statutes, regulations, ordinances, rules, judgments, orders, decrees, and other governmental restrictions (include any amendment or modification thereto) relating to or affecting the Loan, the Indebtedness or the Loan Documents.

 

" Governmental Authority " means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank, or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supranational bodies such as the European Union or the European Central Bank).

 

" Grace Period " means a period of either: (i) 30 days after Lender delivers written notice to Borrower (the " Initial Grace Period ") and demand for the performance of any default of any covenant, agreement, warranty or condition set forth in this Agreement; or (ii) 60 days if (A) Borrower immediately commences and diligently pursues the cure of such default and delivers (prior to the end of the Initial Grace Period) to Lender a written request for more time, and (B) Lender reasonably determines that the default cannot be cured within the Initial Grace Period but can be cured within 90 days after the default.

 

" Guarantor " means, collectively, Randall W. White and Carol White.

 

" Guaranty " means the Continuing Guaranty of even date herewith made by Guarantor in favor of Lender relating to the Loan.

 

" H.15 Report " means the Federal Reserve Board's Statistical Release H.15, "Selected Interest Rates." The H.15 Report is generally available at the Federal Reserve Board's website: www.federalreserve.gov.  If the H.15 Report is replaced or otherwise unavailable, Lender will (in its discretion) designate the replacement report or another report reasonably comparable to the H.15 Report. Lender's designated replacement report will replace the H.15 Report.

 

" Hilti " means Hilti, Inc., an Oklahoma corporation.

 

" Hilti Lease " means that certain Lease Agreement dated as of the Effective Date, between Borrower, as landlord, and Hilti, as tenant.

 

" IBA " means the ICE Benchmark Administration or its successor as the administrator for LIBOR.

 

" ICE " means the Intercontinental Exchange.

 

" Improvements " means all improvements now or hereafter located upon the Land.

 

" Indebtedness " means all obligations, liabilities and indebtedness of Borrower arising under the Loan Documents (including all Additional Costs).

 

" Indemnified Party " means Lender and its directors, officers, employees and agents (and their predecessors and successors) and any Person owned or controlled by, owning or controlling, or under common

 

Exhibit A

to

Loan Agreement

 

 

 

 

 

control or affiliated with Lender or Trustee and their respective successors and assigns.

 

" Insurance Premiums " means all costs for the insurance policies required under Section 4.1(k) above.

 

" Interest Payment Date " means the first Business Day of each calendar month beginning on the first month following the Effective Date and ending on the earlier of (i) the date the Loan is repaid in full, and (ii) the Maturity Date.

 

" Interest Period " means a 1-month period commencing on the first day, and ending on the last day, of each calendar month.

 

" Land " means the land described in Exhibit B of this Agreement.

 

" Late Charge " means a product equal to 5.0% times the amount of any Past Due Indebtedness.

 

" Law " or " Laws " means any statute, law, regulation, ordinance, rule, treaty, judgment, order, decree, permit, concession, franchise, license, agreement or other governmental restriction, or binding judicial (or tribunal) decisions of any Governmental Authority. All references to Law include any amendment or modification to the Law, and all regulations, rulings, and other Laws promulgated under such Law.

 

" Leases " means all rights, title, interests, estates, powers, privileges, options and other benefits of Borrower in, to and under the lease, sublease, license, rental and other use or occupancy agreements which now or hereafter cover or affect any portion of the Property, together with all renewals, extensions, modifications, amendments, subleases and assignments of such lease agreements.

 

" Lender " means MIDFIRST BANK, a federally chartered savings association, and its successors and assigns.

 

" Lender's Offices " means 501 Northwest Grand Boulevard, Oklahoma City, OK 73118 or any other place Lender designates from time to time.

 

" LIBO Rate " means the lesser of (i) the Maximum Rate, and (ii) the rate per annum equal to the sum of (a) the quotient of the LIBOR Index for Interest Period in question divided by (1 minus the Reserve Requirement), and (b) 2.75%.

 

" LIBOR " means the London Interbank Offered Rate.

 

" LIBOR Business Day " means each day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in London, England.

 

" LIBOR Index " means the rate equal to the offered rate (and not the bid rate) for deposits in U.S. Dollars for a period equivalent to the Interest Period, as published by the IBA two LIBOR Business Days before the beginning of the applicable Interest Period.

 

" Licenses " means, collectively, all licenses, permits, approvals, certificates and agreements with or from all boards, agencies, departments, governmental or otherwise, relating directly or indirectly to the ownership, use, operation and maintenance of the Property, or the construction of the Improvements, whether heretofore or hereafter issued or executed.

 

" Loan " means the loan Lender makes to Borrower pursuant to this Agreement (or the other Loan Documents) up to the Maximum Principal Amount.

 

" Loan Documents " means this Agreement, the Guaranty and all other instruments evidencing, guarantying, securing, governing or relating to the Loan, and all amendments, modifications, renewals, substitutions and replacements of any of the foregoing Loan Documents.

 

" Loan Matter " means any action or proceeding which may affect the rights or duties of any Person under the Loan Documents.

 

" Loan Title Policy " means the title insurance policy (i) naming Lender as the insured, (ii) in the amount of the Maximum Principal Amount, (iii) in form (including endorsements), date and substance, and written by a

 

Exhibit A

to

Loan Agreement

 

 

 

 

 

title insurance underwriter, satisfactory to Lender, (iv) insuring a valid first lien upon the Land and Improvements by virtue of the Security Instrument, and (v) containing no exceptions other than the preprinted exceptions and the Permitted Encumbrances.

 

" Loan to Value Default " means any point in time that the Loan to Value Ratio exceeds 80%.

 

" Loan to Value Ratio " means the percentage resulting from a fraction having (i) a numerator equal to the Principal Amount plus any unfunded amounts under the Loan, and (ii) a denominator equal to the value of the Land and Improvements, as determined by the most recent Appraisal, established as of the date on which the fraction is determined.

 

" Loan Year " means a consecutive 365-day period. The first Loan Year will begin on the Effective Date and end at 11:59 PM Central Time (Daylight or Standard Time, as applicable) on the 364th day thereafter.

 

" Material of Environmental Concern " means all chemicals, pollutants, contaminants, wastes, toxic substances, petroleum and petroleum products, and all other substances regulated by Environmental Laws.

 

" Maturity Date " means the earlier to occur of (i) the Stated Maturity Date and (ii) the date on which the entire Loan must be paid in full after acceleration pursuant to the terms of the Loan Documents.

 

" Maturity Months " means the number of months between the Prepayment Date and the Stated Maturity Date.

 

" Maximum Principal Amount " means the lesser of (i) $18,500,000.00 and (ii) 80% of the Loan to Value Ratio.

 

" Maximum Rate " means the maximum interest rate permitted under the Governing Law.

 

" Net Proceeds " means the amount of all insurance proceeds Lender receives less all reasonable costs and expenses Lender incurs in connection with the collection and disbursement of the proceeds.

 

" Paid in Full Mark " means any payment Borrower tenders to Lender marked " paid in full ," " without recourse ," or any similar language.

 

" Past Due Indebtedness " means the sum of any Indebtedness which Borrower fails to pay to Lender within the earlier to occur of (i) 10 days after the date on which the Indebtedness is due, and (ii) the Maturity Date.

 

" Payment Deadline " means no later than 11:00 a.m. Central Time (Daylight or Standard Time, as applicable) on the date any payment is due and payable under this Agreement or the date any voluntary prepayment is made.

 

" Permitted Encumbrances " means the encumbrances, approved by Lender, set forth in Schedule B of the Loan Title Policy, except for the preprinted exceptions to title coverage.

 

" Person " means a natural person, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, limited liability company or other entity, or a government or any political subdivision or agency thereof.

 

" Plans and Specifications " means, collectively, all plans, specifications, notes, drawings, approvals, certifications and similar work product (and all modifications thereof) relating to the Property, including all engineering plans, complete architectural plans, specifications and work drawings, projected costs and related information, site plans, proposed plat dedications and proposed development restrictions and conditions and all requisite building permits authorizing construction of the Improvements (and repairs, modifications and additions thereto).

 

" Prepayment Date " means the day on which Borrower (or any other Person) tenders any Indebtedness which is not then due and payable.

 

" Prepayment Period " means the period of time beginning on the 60th day before the Stated Maturity

 

Exhibit A

to

Loan Agreement

 

 

 

 

 

Date and ending on the Stated Maturity Date.

 

" Prepayment Premium " means an amount equal to product of (i) the Principal Amount being prepaid, and (ii) (a) in the first Loan Year, 5.0%, (b) in the second Loan Year, 4.0%, (c) in the third Loan Year, 3.0%, (d) in the fourth Loan Year, 2.0%, (e) in the fifth Loan Year, 1.0%, (f) in the sixth Loan Year, 1.0%, (g) in the seventh Loan Year, 1.0%, and (h) in each Loan Year thereafter, 0.0%.

 

" Prime Rate " means, for any day, the lesser of (i) the prime rate as published in The Wall Street Journal's "Money Rates" table for that day plus 2.15%, and (ii) the Maximum Rate. If multiple prime rates are quoted in the "Money Rates" table, then the highest quoted prime rate will be the Prime Rate. If the Prime Rate is no longer published in The Wall Street Journal, then Lender will choose a substitute index rate for calculating the Prime Rate and promptly notify Borrower of the new index rate. The Prime Rate may not be the lowest rate of interest that Lender charges. The Prime Rate will fluctuate with each change reported by The Wall Street Journal (or as determined by Lender if no longer published by The Wall Street Journal) as of the day of any reported change.

 

" Principal Amount " means, at any point in time, that portion of the principal balance of the Loan which is unpaid.

 

" Principal Payment Date " means the first Business Day of each calendar month beginning on January 1, 2016, and ending on the earlier of (i) the date the Loan is repaid in full, and (ii) the Maturity Date.

 

" Property " means, collectively, the Land, the Improvements and the Additional Collateral.

 

" Purchase Agreement " means that certain Purchase and Sale Agreement dated as of October 1,2015, as amended by that certain Addendum No. I dated October 1, 2015, executed November 6, 2015, between Hilti, as seller, and Borrower, as purchaser, whereby Borrower will acquire the Land and the Improvements.

 

" Real Estate Taxes " means all ad valorem taxes, assessments and charges (including ground rents, water and sewer rents, and all other recurring charge) which may create a lien against the Property.

 

" Regulation D " means Regulation D of the Board of Governors of the Federal Reserve System, as amended or supplemented from time to time.

 

" Rent " means all of the rents, income, receipts, revenues, issues, profits and other sums of money that are now or at any time hereafter become due and payable to Borrower under the terms of any Lease or arising or issuing from or out of any Lease or from or out of the Property or any part thereof, including minimum rents, additional rents, percentage rents, deficiency rents and liquidated damages following default, payments in consideration for cancellation of a Lease, security deposits (whether cash, one or more letters of credit, bonds or other form of security), advance rents, all proceeds payable under any policy of insurance covering loss of rents resulting from untenantability caused by destruction or damage to the Property and all of Borrower's rights to recover monetary amounts from any lessee in bankruptcy, including (i) rights of recovery for use and occupancy and damage claims arising out of lease defaults, (ii) rejection, disaffirmance, repudiation, and similar actions, under Applicable Bankruptcy Law and other statutes governing the rights of creditors, and (iii) the immediate and continuing right to collect and receive all of the foregoing.

 

" Rent Loss Proceeds " means the aggregate of any loss or business interruption insurance proceeds which the carrier acknowledges is payable to Lender.

 

" Reserve Requirement " means the rate at which Lender must maintain reserves (including any marginal, supplemental or emergency reserves), if any, under Regulation D of the Federal Reserve System (a) against "Eurocurrency Liabilities" (as such term is used in Regulation D), or (b) pursuant to Applicable Law against (i) any category of liabilities which includes deposits by reference to which the LIBO Rate is to be determined as provided in this Agreement, or (ii) any category of extensions of credit or other assets which includes loans the interest rate on which is determined on the basis of rates referred to in the definition of "LIBO Rate".

 

Exhibit A

to

Loan Agreement

 

 

 

 

 

" Restoration " means the restoration, replacement, and rebuilding of the Property as nearly as possible to its value and condition immediately prior to any Damage or Taking in accordance with Plans and Specifications Lender approves.

 

" Security Instrument " means each mortgage, assignment of leases and rents, security agreement, fixture filing and financing statement (and all amendments thereto and modifications thereof) executed by Borrower, Guarantor or any other Person, in favor of Lender concerning the Property.

 

" State " means the state in which the Land is situated.

 

" Stated Maturity Date " means November 30, 2025.

 

" Suspension Notice " means the notice from Lender to Borrower setting forth Lender's determination that (A) the LIBOR Index is not reported or (B) (as a result of changes to Applicable Law) it has become unlawful for Lender to make or maintain the Loan at the LIBO Rate.

 

" Taking " means any threatened or instituted proceedings for the condemnation or taking by eminent domain, or offer to purchase in lieu of a taking, of all or any portion of the Property including any change in any street (whether as to grade, access, or otherwise).

 

" Tax " or " Taxes " means all (1) income, franchise, margin and other taxes, which now or in the future, may be assessed against a Borrower Party, (2) stamp or other taxes due with respect to the Loan Documents, (3) taxes and assessments, which now or in the future, are levied or assessed against the Collateral, (4) taxes (except for ordinary income taxes) and assessments, which now or in the future, are levied or assessed against Lender in any way related to the Indebtedness or the Loan Documents, and (5) all Real Estate Taxes.

 

" Tax and Insurance Escrow Account " means the impound account Borrower establishes with Lender for the payment of Real Estate Taxes and Insurance Premiums.

 

" Taxpayer Identification Number " means 73-0750007.

 

" Tenant " means each occupant of any portion of the Land or Improvements under a Lease.

 

" Tranche A " means $13,400,000 of the principal amount of the Loan, such amount to bear interest at the Contract Rate as provided in Section 2.1(a) .

 

" Tranche B " means $5,000,000 of the principal amount of the Loan, such amount to bear interest at the LIBO Rate as provided in Section 2.1(a) .

 

" Transfer Event " means the conveyance of any Collateral to Lender or another Person through a foreclosure (or deed in lieu), receivership, bankruptcy or other voluntary or involuntary Borrower action.

 

" Treasury Note Rate " means the latest Treasury Constant Maturity Series yields reported, for the last day for which such yields shall have been so reported as of the applicable LIBOR Business Day, in Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication) for actively traded U.S. Treasury securities having a constant maturity equal to 10 years. If necessary, the yield will be determined by (i) converting U.S. Treasury bill quotations to bond-equivalent yields in accordance with accepted financial practice, and (ii) interpolating linearly between reported yields.

 

 

Exhibit A

to

Loan Agreement

 

 
 

 

 

 

 

 

Exhibit 10.8

 

PURCHASE AND SALE AGREEMENT

 

THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into as of the day of the 1 st day of October, 2015 (the "Effective Date") by and between HILTI INC., an Oklahoma corporation ("Seller"), having an address of 5400 South 122nd East Avenue, Tulsa, OK 74146, and Educational Development Corporation and its permitted assigns pursuant to Section 12.1 below ("Buyer"), having an address of 10302 East 55th Place, Tulsa, OK 74146, and Commercial Title & Escrow Services, Inc. ("Escrow Agent"), having an address of 4739 East 91 street, Tulsa, Oklahoma 74137.

 

RECITALS

 

Seller is the owner of the Property (as defined in Section 2.1 below). Seller desires to sell the Property to Buyer and Buyer desires to buy the Property from Seller, all on and subject to the terms and conditions hereinafter set forth.

 

ARTICLE 1

 

Purchase and Sales Agreement

 

1.1      Agreement to Purchase and Sell . In consideration of the mutual undertakings and covenants of the parties set forth in this Agreement, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Seller agrees to sell the Property to Buyer and Buyer agrees to buy the Property from Seller on and subject to the terms and conditions contained in this Agreement.

 

ARTICLE 2

 

The Property

 

2.1      Description of the Property . The "Property" consists of the following:

 

(a)      Land . Seller's fee simple interest in and to all of those certain tracts of land situated in Tulsa County, Oklahoma and described more particularly in Exhibit A and Exhibit A-I attached hereto and incorporated herein by reference, together with all of Seller's right, title and interest in and to all mineral and water rights and all easements, licenses, covenants and other rights-of-way or other appurtenances used in connection with the beneficial use and enjoyment of the land and the Improvements and including any appurtenant rights to any land lying in the bed of any existing dedicated street, road or alley

 

1

 

 

adjoining the land and to all strips and gores adjoining the land (collectively, the "Land"). The Land described in Exhibit A and the Improvements thereon and other Property associated therewith is sometimes referred to herein as the "Corporate Campus". The Land described in Exhibit A-I and other Property (if any) associated therewith is sometimes referred to herein as the "Vacant Land."

 

(b)      Improvements. The buildings together with all other improvements and structures constructed on the Land (collectively, the "Improvements").

 

(c)      Personal Property . All Of Seller's right, title and interest in and to the following:

 

(i) mechanical systems, fixtures and equipment comprising a part of or attached to or located upon the Improvements;

 

(ii) site plans, surveys, plans and specifications, building records, marketing materials and floor plans in Seller's possession which relate to the Land or improvements; and

 

(iii) signs situated on or at the Land or Improvements.

 

The foregoing are herein collectively called the "Personal Property".

 

(d)      Contracts . Seller's interest in all contract rights, warranties and guarantees related to the Land, Improvements, or Personal Property that will remain in existence after Closing (as hereinafter defined), or to the extent assignable, and only to the extent applicable (collectively, the "Contracts").

 

(e)      Pe rmits . Seller's interest in all permits, licenses, certificates of occupancy, and governmental approvals which relate to the Land, Improvements, Personal Property or Contracts, to the extent assignable (collectively, the "Permits").

 

(d)      Intangible Property . All of Seller's right, title and interest, if any, in and to all consents, licenses, approvals, certificates, permits, plans, development rights, air rights, water and mineral rights, warranties, guarantees, trademarks, trade names, logos, and floor plans, plans and specifications relating to the Improvements and the Personal Property (collectively, the "Intangible Property"). The Intangible Property

 

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excludes any rights to the name "Hilti" and any associated trademarks or logos used by Hilti, Inc.

 

ARTICLE 3

 

Purchase Price De p osit Ad j ustments

 

3.1      Purchase Price . The purchase price (the "Purchase Price") for the Property is Twenty-Three Million Dollars ($23,000,000.00). The Purchase Price will be payable by wire transfer of immediately available funds at the Closing. The parties agree that the Purchase Price is allocated (i) Twenty One Million Eight Hundred Thousand ($21,800,000) to the Corporate Campus, and (ii) One Million Two Hundred Thousand ($1,200,000) to the Vacant Land.

 

3.2      Closing . Within two (2) Business Days following the execution of this Agreement, Buyer will deposit with the Escrow Agent (defined on Exhibit B attached hereto) the sum of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) (the "Deposit") to secure Buyer's obligations under this Agreement. The parties agree that two-thirds of the initial Deposit (being $100,000) is non-refundable and will be paid to Seller if, on or before the Due Diligence Expiration Date, Buyer notifies Seller (for any reason pursuant to Section 5.3 hereof) of Buyer's intent not to proceed with the transaction described herein. The portion of the Deposit that is non-refundable (including any additional Deposit made to extend the Closing Date under Section 8.1) is herein called the "Seller Hard Money". The Escrow Agent will maintain and disburse the Deposit pursuant to the terms and conditions of this Agreement and the Deposit Escrow Agreement attached hereto as Exhibit B (the Deposit Escrow Agreem en t ). The Deposit shall be held in an interest-bearing escrow account by Escrow Agent in an institution as directed by Buyer and reasonably acceptable to Seller. All interest and income on the Deposit will be remitted to the party entitled to the Deposit pursuant to this Agreement. At Closing, the entire amount of the Deposit shall be credited on Buyer's behalf toward the payment of the Purchase Price.

 

3.3      Prorations of Taxes . All real and personal property taxes attributable to the calendar year in which the Closing occurs shall be prorated and adjusted as of the Closing Date as an adjustment at the Closing. If the tax bills for the calendar year during which the Closing Date occurs are not finally determined, then such taxes and other charges shall be prorated on the basis of the most currently available tax bills, and thereafter, promptly re-prorated upon the availability of actual bills for the applicable period. All special assessments which may be amortized over a number of years will be prorated as of the Closing Date, with Seller responsible only for the period ending on the day prior to the Closing Date. Any tax refunds or proceeds (including

 

3

 

 

interest thereon) on account of a favorable determination resulting from a challenge, protest, appeal or similar proceeding relating to taxes and assessments relating to the Property (a) for all tax periods occurring prior to the applicable tax period in which the Closing occurs will be retained by and paid exclusively to Seller and (b) for the applicable tax period in which the Closing occurs will be prorated as of the Closing Date after reimbursement to Seller and Buyer, as applicable, for all fees, costs and expenses (including reasonable attorneys' and consultants' fees) incurred by Seller or Buyer, as applicable, in connection with such proceedings such that Seller will retain and be paid that portion of such tax refunds or proceeds as is applicable to the portion of the applicable tax period prior to the Closing Date and Buyer will retain and be paid that portion of such tax refunds or proceeds as is applicable to the portion of the applicable tax period from and after the Closing Date. After the Closing, Buyer will be responsible for and control any tax protests or proceedings for any period for which taxes are adjusted between the parties under this Agreement and for any later period. Buyer and Seller will cooperate in pursuit of any such proceedings and in responding to reasonable requests of the other for information concerning the status of and otherwise relating to such proceedings; provided, however, that neither party shall be obligated to incur any out-of-pocket fees, costs or expenses in responding to the requests of the other.

 

3.4      Seller’s Leaseback . At closing Seller will execute a lease (the "Lease") from Buyer of approximately 181,300 square feet (the "4 Lease Premises") of office space in the Property for a term of fifteen (15) years at the rental rate of $7.00 per square foot, with an automatic two percent (2%) increase annually. The Lease will provide that Seller and Buyer will be responsible for 70% and 30%, respectively, of the common area expenses, real estate ad valorem taxes, and building and casualty insurance for the Corporate Campus, with utilities to be separately metered and paid. * The form of the Lease will be confirmed by the parties during the Due Diligence Period. After the Closing, Seller will not be obligated for any expense attributable to the Vacant Land. The parties further agree that the Lease will provide: (a) Except as otherwise agreed, each party will be directly responsible for janitorial and other services for that portion of the Corporate Campus occupied by it; (b) Seller will at its expense provide security for the entire Corporate Campus at a level determined by Seller to be adequate. Seller will have no liability to Buyer for any deficiency in the security level provided or for any negligence or wrongdoing on the part of the security staff. If Buyer desires security different than or additional to that

 

4

 

 

which Seller is willing to provide, then Buyer may obtain security at its own cost; and (c) Seller will at its expense maintain the "power house" building located on the south side of the Corporate Campus and will maintain the heating and cooling equipment located therein, including the boilers, chillers and related piping. If Buyer or a tenant of Buyer elects to install additional air conditioning in that portion of the Corporate Campus occupied by it, then all incremental cost for such additional air conditioning will be borne by Buyer or its tenant, and Seller will have no responsibility for such additional air conditioning expense.

 

3.5      Adjustment Payments; Estimates . The net amount adjustments to be made under this Article 3 will be paid on the Closing Date by wire transfer in immediately available funds. All post-closing adjustments 'Will be made by wire transfer in immediately available funds, or by check in good funds. All apportionments and prorations made hereunder shall be made based on the number of days of ownership of the Property in the period applicable to the apportionment, with Buyer entitled to income and responsible for expenses for the Closing Date. Prorations of annual payments will be made based on the number of days of ownership in the applicable annual period. In the event, on the Closing Date, the precise figures necessary for any of the foregoing adjustments are not capable of determination, then, except to the extent otherwise provided in this Agreement, those adjustments will be made on the basis of good faith estimates using currently available information, and final adjustments shall be made within six (6) months after the Closing Date to the extent precise figures are determined or become available.

 

3.6      Closing Costs . At the Closing, (a) Seiler shall pay and be responsible for (i) the recording charges for any instrument which releases or discharges any lien as required by Article 6 hereof, (ii) the cost of preparation of the title commitment, the base premium for the Title Policy (hereinafter defined) (excluding any endorsements or additional charges for affirmative coverages), and the cost of a current survey, (iii) one-half of the fees of the Escrow Agent, (iv) all transfer, recording, filing, excise, documentary, revenue stamp and similar fees and taxes payable in connection with the transfer of the Property contemplated by this Agreement, and (v) Seller's counsel's fees and expenses, and (b) Buyer shall pay and be responsible for (i) all recording charges for the deed, (ii) all costs and fees for any endorsements to the title policy required by Buyer (or its lender, if applicable), and all of Buyer's due diligence studies and investigations, (iii) one-half of the fees of the Escrow Agent, and (iv) Buyer's counsel's fees and expenses. Seller and Buyer shall each pay all other expenses, charges or costs for which sellers and purchasers, respectively, are customarily responsible in commercial real estate transactions in Oklahoma.

 

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3.7      Closing Statement . Escrow Agent will prepare a closing statement.

 

3.8      Additional Prorations . The following are to be apportioned between Buyer and Seller as of midnight on the date preceding the Closing Date:

 

(a)     Water, sewer, gas, electric, vault and fuel charges, if any;

 

(b)     Operating expenses for the Property including sums due or already paid pursuant to any Contracts; and

 

(c)     Amounts paid pursuant to all transferable licenses and permits, on the basis of the fiscal year for which levied.

 

3.9      Survival . The provisions of Article 3 will survive the Closing.

 

3.10   Other Adjustments and Payment . At the Closing, Seller will pay Buyer the sum of One Hundred Twenty-Five Thousand Dollars (the "Closing Adjustment"). The Closing Amount has been negotiated and agreed to compensate Buyer for the following:

 

 

(a)

Modifying front entrance on east side of main building of Corporate Campus (double glass doors and appropriate canopy to fit);

 

 

(b)

Removing concrete-structured building on east side of Corporate Campus;

 

 

(c)

Constructing demising wall separating the Lease Premises to be occupied by Seller from the remainder of the Corporate Campus to be occupied by Buyer (the 'Buyer Occupied Area");

 

 

(d)

Providing ADA compliant restrooms in the Buyer Occupied Area;

 

 

(e)

The parties agree that Seller will retain all pallet racks, of office furniture and office equipment currently situated in the Buyer Occupied Area. The parties agree that Seller will be allowed to continue use of the training area in the Buyer Occupied Area without charge for a period of up to ninety (90) days after the Closing.

 

ARTICLE 4

 

Representations Warranties Covenants and A g reements

 

 

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4.1      Seller's R ep resentations and Warranties . Seller makes the following representations and warranties to Buyer as of the Effective Date and the Closing Date:

 

(a)     To Seller's knowledge, except as disclosed in the environmental reports furnished to Buyer or otherwise in writing to Buyer, (i) there has been no production, discharge, disposal, or storage on, from, or on to the Property of any Hazardous Substance (hereinafter defined) or other toxic or deleterious material substance or any activity which could otherwise have contaminated the Property, (ii) the Property has never contained any underground storage tank and none of the Improvements contains asbestos, (iii) no portion of the Property has ever been used as a landfill or as a dump to receive garbage, refuse, waste, or fill material whether or not hazardous, and there are and have been no Hazardous Substances located upon, stored, handled, installed or disposed in, on or about the Property or any other location within the vicinity of the Property in amounts or quantities which would constitute a violation of any Environmental Laws and Regulations, and (iv) the Property is in compliance with ail Environmental Laws and Regulations.

 

(b)     There is no civil, criminal or administrative action, suit, demand, claim, hearing, notice or demand letter, notice of violation, investigation of which Seller has been notified, or proceeding pending or, to the knowledge of Seller, threatened, against Seller in connection with the operation of its business or the operation of the Property relating in any way to Environmental Laws and Regulations.

 

(c)     As used herein, "Environmental Laws and Regulations" shall include, but not be limited to:

 

 

i.

the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 559601-9657, and any amendments thereto;

 

 

ii.

the Resource Conservation and Recovery Act, 42 U.S.C. "69016987 and any amendments thereto;

 

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iii.

Safe Drinking Water Act, 42 U.S.C. 5300(f) et seq.  and any amendments thereto;

 

 

iv.

Any and all environmental acts, statutes, and other laws of the State of Oklahoma; and

 

 

v.

Any and all regulations, rules, and administrative orders issued or promulgated pursuant to any of the foregoing.

 

(d)     As used herein, "Hazardous Substance" means and includes any petroleum product, any hazardous substance, or any other pollutant or contaminant defined as such in the Environmental Laws and Regulations.

 

Subject to the foregoing, Seller hereby represents and warrants to Buyer as of the Effective Date and the Closing Date as follows:

 

(a)    This Agreement has been duly authorized, executed and delivered by Seller and all consents required under Seller's organizational documents or by-laws have been obtained. All documents that are to be executed by Seller and delivered to Buyer on the Closing Date have been, or on the Closing Date will be, duly executed, authorized and delivered by Seller. This Agreement and all such documents are, and on the Closing Date will be, legal, valid and binding obligations of Seller, enforceable in accordance with their terms and do not, and, at the time of the Closing Date will not, violate any provisions of any agreement or judicial or administrative order to which Seller is a party or to which Seller or the Property (or any portion thereof) is subject. Seller is duly formed, validly existing and in good standing under the laws of the jurisdiction of its organization.

 

(b)     There are no actions, suits or proceedings (including arbitration proceedings) pending or to the best of Seller's knowledge, threatened, against Seller which could have a material adverse effect on Seller's ability to perform its obligations hereunder, at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality.

 

(c)     No material action, suit or other proceeding (including, but not limited to, any condemnation action) is pending or, to Seller's knowledge, has been threatened in writing that could have a material adverse effect on the Property.

 

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(d)    Seller has not received any written notice of a pending or threatened condemnation or eminent domain action against the Property or any portion thereof, or any formal notice of condemnation with respect to the Property or any portion thereof.

 

(e)     No bankruptcy, insolvency, reorganization or similar action or proceeding, whether voluntary or involuntary, is pending, or, to the best of Seller's knowledge, threatened, against Seller.

 

(f)    Other than existing agreements with the broker described in Section 10.1, there are no existing leasing, listing, or other brokerage agreements related to the Property as of the date hereof.

 

(g)      Except for the contracts to be provided by Seller to Buyer during the Due Diligence Period, and contracts, amendments or other agreements which may be entered into by Seller pursuant to Section 4.2 hereof, there are no Contracts in effect entered into by Seller which will affect the Property or operations of the Property after Closing, whether by their terms or through Seller terminating them as of or prior to the Closing. Seller will provide Buyer with true, correct and complete copies of all of such Contracts, including all amendments and modifications thereto, within two (2) Business Days of the execution of this Agreement by Buyer and Seller. To the best of Seller's knowledge, except for any past due payments by Seller that will be adjusted at Closing, there are no material defaults by any party to be assumed by Buyer under any of the Contracts.

 

(h)     There are no leases or other occupancy agreements with tenants in effect which will affect the Property after Closing.

 

(i)     Within the time provided in Section 5.2 for delivery of Due Diligence Materials, Seller will deliver to Buyer a true, correct and complete copy of the environmental reports, which are all of such reports concerning Hazardous Substances in, on, under or about the Property in Seller's possession or control. Except as set forth in such environmental reports, Seller has not received from any federal, state or municipal governmental agency, or any third* party abutting the Property, any written request for information, notices of claim or demand letters concerning Hazardous Substances at, on, under or migrating from the Property.

 

(j)     Seller is not a "foreign person, foreign trust" or "foreign corporation" within the meaning of the United States

 

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Foreign Investment in Real Property Tax Act of 1980 and the Internal Revenue Code of 1986, as subsequently amended.

 

(k)     Neither Seller nor, nor to Seller's knowledge any of its equity owners or any of its or their respective employees, officers or directors, is a person or entity with whom US. persons or entities are restricted from doing business under regulations of the Office of

Foreign Asset Control of the Department of the Treasury ("OFAC") (including those named on OFAC's Specially Designated and Blocked Persons List) or under any similar statute, 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 similar governmental action.

 

(l)     Seller has not received any written notices of any uncured violations of, and to Seller's knowledge it received no notice of any failure to comply with, any Permitted Encumbrances or applicable law for the present use and occupancy of the Property or any applicable (i) federal, state and local law, regulation, ordinance and code, including, without limitation, building, land use, environmental and zoning laws, regulations, ordinances and codes, (ii) development agreements or similar contracts between private parties affecting the development, construction, use and occupancy of the Property, and (iii) judgments, orders or decrees of any court having jurisdiction over Seller or the Property.

 

(m)   With respect to any declarations or similar instruments affecting the Property: (i) they have not been amended except as evidenced by written amendments, copies of which have been delivered to Buyer as required hereunder; (ii) there are no monetary obligations of Seller thereunder except as set forth herein or therein; (iii) Seller is not in default of any monetary or non-monetary obligation thereunder, nor is there any fact or circumstance which, with or without notice or the passage of time, or both, would constitute a default by Seller thereunder of any such obligations; (iv) there are no pending claims, defenses or offsets which have been asserted in writing against Seller by any party to any declaration; and (v) to Seller's knowledge, Seller has performed and complied with all of its obligations under the declarations or similar instruments.

 

The representations and warranties of Seller set forth in this Section, as updated as of the Closing in accordance with the terms of this Agreement, shall survive Closing for a period of twelve (12) months. Seller shall have no liability to Buyer for a breach of any representation or warranty unless written notice containing a description of the specific nature of such breach shall have been given by Buyer to Seller prior to the expiration of said

 

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twelve (12) month period. In the event that Buyer discovers prior to the Due Diligence Expiration Date that a representation or warranty of Seller under this Section 4.1 is untrue or becomes untrue, and Buyer does not elect to terminate this Agreement prior to the Due Diligence Expiration Date, such representation or warranty shall not be a condition to Closing. Anything contained herein to the contrary notwithstanding, to the extent any inaccuracy in a representation and warranty of Seller in this Agreement or any documents or instruments delivered by Seller at the Closing is revealed in any of the Due Diligence Materials or other documents or information provided or made available to Buyer or otherwise obtained by Buyer and Buyer nevertheless consummates the Closing and the transactions contemplated by this Agreement, then such representation and warranty shall be deemed modified to reflect such inaccuracy.

 

4.2      Seller’s Covenants . Seller hereby covenants and agrees with Buyer that from the date of this Agreement until the Closing, Seller shall continue to operate, maintain and repair the Property in the ordinary course of business in substantially the same manner as it is now operated, maintained and repaired, , as applicable, but shall not take any of the following actions after the date of this Agreement without the prior written consent of Buyer, which consent shall not be unreasonably withheld, conditioned or delayed; (a) make or permit to be made any material alterations to or upon the Property; or (b) enter into any contracts for the provision of services and/or supplies to the Property which survive Closing.. Buyer's consent to Seller entering into any new Contract(s) or extending, modifying, canceling or otherwise altering one or more of the existing Contracts shall be deemed to have been given by Buyer if Buyer fails to approve (with such approval not to be unreasonably withheld, conditioned or delayed) or disapprove such actions within five (5) Business Days following Seller's written request for such consent. In addition to the foregoing, (i) Seller shall maintain until the Closing Date fire and extended coverage insurance on the Property which is at least equivalent in all material respects to the insurance policies covering the Property as of the Effective Date and (ii) Seller shall not transfer or remove any Personal Property from the Improvements after the Effective Date except for repair or replacement thereof. Any items of Personal Property replaced after the Effective Date shall be promptly installed prior to Closing and shall be of at least substantially similar quality to the item of Personal Property being replaced.

 

4.3      Bu y e r’ s Re p resentations and Warranties . Buyer hereby represents and warrants to Seller as of the date of this Agreement as follows:

 

(a)     This Agreement has been duly authorized, executed and delivered by Buyer and all consents required under Buyer's organizational documents or by law have been

 

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obtained. All documents that are to be executed by Buyer and delivered to Buyer on the Closing Date have been, or on the Closing Date will be, duly executed, authorized and delivered by Buyer. This Agreement and all such documents are, and on the Closing Date will be, legal, valid and binding obligations of Buyer, enforceable in accordance with their terms and do not, and, at the time of the Closing Date will not, violate any provisions of any agreement or judicial or administrative order to which Buyer is a party or to which Buyer or the Property (or any portion thereof) is subject. Buyer is duly formed, validly existing and in good standing under the laws of the jurisdiction of its organization,

 

(b)     There are no actions, suits or proceedings (including arbitration proceedings) pending or to the best of Buyer's knowledge, threatened, against Buyer which could have a material adverse effect on Buyer's ability to perform its obligations hereunder, at law or in equity or before or by any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality.

 

(c)     Neither Buyer nor, to Buyer's knowledge, any of its equity owners or any of its or their respective employees, officers or directors, is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of OFAC (including those named on OFAC's Specially Designated and Blocked Persons List) or under any similar statute, 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 similar governmental action.

 

(d)     Within ninety (90) days of Closing, Buyer, at its sole cost and expense, will close all openings in the demising wall in a manner approved by Seller, which approval will not be unreasonably withheld. This may include construction of a vestibule in the main hallway that would allow tenants on each side of the demising wall to have access to the cafeteria located within the Lease Premises. The provisions of this Section 4.3(d) wilt survive Closing.

 

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ARTICLE 5

 

Access Inspection Diligence

 

5.1       Inspections . Seller agrees that Buyer and its authorized agents or representatives shall be entitled to enter upon the Land and the Improvements during normal business hours. Buyer acknowledges that Buyer will conduct prior to Closing, such investigations of the Property, including but not limited to, the environmental conditions thereof, as Buyer deems necessary or desirable to satisfy itself as to the condition of the Property and the existence or nonexistence or curative action to be taken with respect to any Hazardous Substances on or discharged from the Property. All investigations made by Buyer will be at Buyer's sole cost and expense. Buyer will promptly provide Seller, at Seller's request, with a copy of any report, draft report or evaluation ("Reports") which indicates the presence of Hazardous Substances on the Property or the violation of any applicable law. Buyer agrees to keep confidential and not to disclose the results or the contents of any Reports unless Buyer is required to disclose such reports pursuant to a court order or applicable law. In the event Buyer terminates this Agreement for any reason other than a Seller Default, Buyer shall, upon the request of Seller, promptly deliver to Seller copies of any third party reports prepared for Buyer in connection with Buyer's investigation of the Property, THE INFORMATION DELIVERED BY

 

BUYER SHALL BE DELIVERED TO SELLER WITHOUT ANY REPRESENTATION OR WARRANTY AS TO THE COMPLETENESS OR ACCURACY OF SUCH INFORMATION OR ANY OTHER MATTER RELATING THERETO, AND SELLER SHALL HAVE NO RIGHT TO RELY ON ANY SUCH INFORMATION WITHOUT THE WRITTEN CONSENT OF THE PARTY PREPARING SAME.

 

5.2      Due Diligence Materials . Within two (2) Business Days of the effective date of this Agreement, Seller agrees to provide Buyer with certain information and materials pertaining to the Property, including but not limited to the following: (the "Due Diligence Materials")

 

(a)     true, correct and complete copies of the Contracts, whether or not cancelable upon thirty (30) days' notice;

 

(b)     copies of all plans, specifications, and drawings of the Improvements within the possession of Seller;

 

(c)    copies of all environmental, structural engineering, soils, roofing, plumbing, heating air conditioning, and ventilation specifications and reports within the possession of Seller;

 

(d)     copies of ad valorem tax receipts for the last three (3) calendar years;

 

13

 

 

(e)     a listing of all utility accounts billed to or in the name of Seller; to the extent utilities can be split, Seller and Buyer will share that cost equally;

 

(f)     copies of all maintenance records relating to the Property which are in the possession or control of Seller (including, without limitation any inspection reports);

 

(g)     a listing and detailed description of any pending litigation involving Seller and/or affecting the Property;

 

(h)     copies of all documentation relating to compliance of the Property with applicable zoning ordinances deed restrictions, and governmental regulations within the possession of Seller;

 

(i)     audited financial statements of Seller for the last three years ended December 31, 2014. Such audited financial statements and the report of the accountant may contain limitations consistent with those expressed in the reports of PriceWaterhouseCoopers AG regarding financial reports of Seiler for the years 2012, 2013 and 2014. It is understood that such financial statements may be prepared in accordance with “IFRS” (International Financial Reporting Standards). Buyer will not disclose such financial statements to any other party without the prior written consent of Seller; and

 

(j)     copies of any existing surveys of the Property ("Existing Surveys") within the possession of Seller.

 

Buyer acknowledges and agrees that all Due Diligence Materials and information obtained from such Due Diligence Materials are deemed confidential, and Buyer agrees to keep such information confidential and to prevent its dissemination to persons other than Buyer's employees, representatives, agents, contractors, and affiliates involved in this transaction, governmental authorities of whom Buyer must make inquiry as part of its due diligence, and prospective lenders, investors, and/or assigns of Buyer.

 

5.3      Inspection Period . Buyer shall notify Seller on or before thirty (30) days from the effective date of this Agreement at 5:00 p.m.

 

14

 

 

 

Central Time (the "Due Diligence Expiration Date" and such thirty day period, the "Due Diligence Period") whether or not Buyer elects to proceed with the transaction described herein. If Buyer timely notifies Seller that Buyer elects in Buyer's sole and absolute discretion for any reason or no reason not to proceed with the transaction described herein, the Escrow Agent shall pay the Seller Hard Money to Seller and return the balance of the Deposit to Buyer in accordance with the Deposit Escrow Agreement, and this Agreement shall be null and void without further recourse to either party hereto, and except as expressly set forth herein, neither party shall have any further liability or obligation to the other hereunder. If Buyer does not timely notify Seller that it elects not to proceed with the transaction described herein, Buyer shall be deemed to have waived such election and instead elected to proceed with the transaction described herein.

 

ARTICLE 6

 

Title and Survey

 

6.1      Title and Survey Review . Seller shall cause to be prepared (i) by the title services division of the Escrow Agent (the "Title Company") a title insurance commitment insuring the Land and the Improvement* together with copies of all items shown as exceptions to title therein (the "Title Commitment") and (ii) an updated survey covering the Land and the Improvements prepared in accordance with the 201 1 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys, certified to Buyer the Title Company, and any lender of Buyer (the "Survey"), which such Survey shall be delivered to Buyer no later than ten (10) days from the effective date of this Agreement. Buyer will, prior to the Due Diligence Expiration Date, (a) review the Due Diligence Materials relating to title and survey matters, (b) examine the Title Commitment and all documents related thereto, and (c) examine the Survey (collectively, the "Title Evidence").

 

6.2      Title Objection.  Prior to the Due Diligence Expiration Date, Buyer will notify Seller of its written objections ("Title Objections") to the form and/or contents of the Title Evidence as Buyer may wish along with copies of the Title Evidence; provided, however, that Buyer shall have no right to object to any of the matters set forth within subsections (a) through (d) of the definition of Permitted Encumbrances. Buyer's failure to notify Seller of any Title Objections with respect to any particular matter within such time period will constitute a waiver of Title Objections with respect to a particular matter. As used herein, the term "Permitted Encumbrance" shall mean (a) the standard printed exclusions from coverage contained in the ALTA form of owner's title policy; (b) all matters, whether or

 

15

 

 

not of record, that arise out of the actions of Buyer or its agents, representatives or contractors; (c) all matters that the Title Company is willing to insure over without additional premium or indemnity from Buyer and that, in the exercise of Buyer's reasonable business judgment, do not have a material adverse impact on the ownership, operation or value of the Property; (d) the lien of real estate taxes, water, sewer, and other public charges not yet due and payable; and (e) all other matters affecting title to the Property as to which Buyer has actual knowledge or is deemed to know as of the Due Diligence Expiration Date, except for those matters as to which, in accordance with this Section 6.2: (i) Buyer makes a written objection on or before the Due Diligence Expiration Date; and (ii) Seller elects to use reasonable efforts to cure.

 

6.3      Seller’s Cure of Tittle Objections . Seller shall, within five (5) Business Days of its receipt of Buyer's Title Objections, notify Buyer whether or not it elects to attempt to cure the Title Objections raised by Buyer. If Seller elects to cure the Buyer's Title Objections, Seller shall attempt to cure the Buyer's Title Objections on or before the Closing Date. In the event Seller fails to timely respond to Buyer's Title Objections, Seller shall be deemed to have elected not to attempt to cure such Title Objections. If Seller elects, or is deemed to have elected, not to attempt to cure any title objections raised by Buyer, then on or before the later of the Due Diligence Expiration Date or within two (2) Business Days after receipt of such notice from Seller or the date Seller is deemed to have elected not to cure, Buyer shall elect to either (a) terminate this Agreement and receive a refund of the Deposit in accordance with the Deposit Escrow Agreement (and in such event, except as expressly set forth herein, neither party shall have any further liability or obligation to the other hereunder), or (b) proceed to close without any reduction in the Purchase Price and in such event any such Title Objections shall be deemed Permitted Encumbrances. In the event Buyer fails to timely respond to Seller's notice, Buyer shall be deemed to have elected clause (b), Notwithstanding the foregoing, with respect to Voluntary Liens (as hereinafter defined), Seller shall remove or cure the same by payment of funds from Closing. The Closing shall be extended for such time as is necessary for Buyer and Seller to exercise their rights under this Section, and in the event Seller elects to cure the Title Objections, the Closing shall be extended for a period of up to fourteen (14) days to permit Seller to cure the Title Objections. Seller shall remove any encumbrances or exceptions to title which are voluntarily created by, through or under Seller after the date of the Due Diligence Expiration Date, and any other matters that would constitute a Title Objection first arising after the Due Diligence Expiration Date (except for Voluntary Liens) shall follow the above process. If the Title Objections which Seller has agreed to cure are not cured prior to Closing (as the same may be extended as provided herein), Buyer will have the option as its sole and exclusive remedies to (x) terminate this Agreement and

 

16

 

 

receive a refund of the Deposit in accordance with the Deposit Escrow Agreement (and in such event, except as expressly set forth herein, neither party shall have any further liability or obligation to the other hereunder), or (y) proceed to close without any reduction in the Purchase Price. If Buyer elects the latter, any uncured Title Objections shall be deemed Permitted Encumbrances. As used herein, the term "Voluntary Lien" shall mean any mortgage or deed of trust granted or assumed by Seller and encumbering the Property or any portion thereof.

 

6.4      Required State of Title . At the Closing, Seller shall convey by general warranty deed to Buyer (or to Buyer's permitted nominee) good and clear record and marketable fee simple title to all of the Land and the Improvements free and clear of any and all liens and other encumbrances, except for the Permitted Encumbrances.

 

ARTICLE 7

 

Conditions to Seller's and Bu y er's Performance

 

7.1      Conditions to Seller’s Obligations . The obligations of Seller to consummate the transaction contemplated by this Agreement are, in addition to the other terms and conditions of this Agreement, subject to the following (any one or more of which may be waived in whole or in part by Buyer at its discretion):

 

(a)     The representations and warranties made by Buyer in this Agreement being true and correct in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties had been made as of the Closing Date (except as the same may be modified or updated in accordance with the terms of this Agreement); and

 

(b)     Buyer having performed in all material respects all covenants and obligations required by this Agreement to be performed by Buyer on or prior to the Closing Date, including, without limitation, payment of the Purchase Price, as adjusted and prorated hereunder.

 

7.2      Conditions to Bu y er's Obli g ations . The obligations of Buyer to consummate the transaction contemplated by this Agreement are, in addition to the other terms and conditions of this Agreement, subject to the following (any one or more of which may be waived in whole or in part by Buyer at its discretion):

 

(a)     The representations and warranties made by Seller in this Agreement being true and correct in all material respects on and as of the Closing Date with the same force and effect as though such representations and warranties had been made as of the

 

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Closing Date (except as the same may be modified or updated in accordance with the terms of this Agreement); and

 

(b)     Seller having performed in all material respects all covenants and obligations in all material respects required by this Agreement to be performed by Seller on or prior to the Closing Date.

 

ARTICLE 8

 

Closin g

 

8.1      Escrow Closing . Provided all conditions to closing contained in this Agreement have been satisfied (or deemed satisfied) or waived in writing, the transaction contemplated by this Agreement shall close (the "Closing"), through an escrow with the Escrow Agent, on November 2, 2015 (the "Closing Date"). Buyer may extend the Closing Date by an additional fifteen (15) days if, prior to the stated Closing Date, Buyer deposits with the Escrow Agent an additional Fifty Thousand Dollars ($50,000) [increasing the total Deposit to $200,000] and provides notice of such extension to Seller. In such event, the Seller Hard Money portion of the Deposit will increase to One Hundred Fifty Thousand Dollars ($150,000)

 

8.2      Seller’s Closing Deliveries . At Closing, Seller shall deliver or cause to be executed and delivered to the Escrow Agent each of the following items:

 

(a)     General Warranty Deed in the form of Exhibit C hereto (the "Deed");

 

(b)     Bill of Sale in the form of Exhibit D hereto (the "Bill of Sale");

 

(c)     Certificate of Non-Foreign Status in the form of Exhibit E hereto;

 

(d)     The Assignment and Assumption Agreement in the form attached as Exhibit F  if there are any Contracts to be assigned (the "Assignment and Assumption Agreement");

 

(e)     Settlement statement showing all of the payments, adjustments and prorations provided for in this Agreement and otherwise agreed upon by Seller and Buyer (the "Settlement Statement");

 

(f)     Customary form of affidavit for the benefit of the Title Company certifying (i) to the absence of claims which would give rise to mechanics' and

 

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materialmen's liens; and (ii) that Seller is the only party in possession of the Land or Improvements;

 

(g)     Such evidence as may be reasonably and customarily required by the Title Company with respect to the authority of the person(s) executing the documents required to be executed by Seller on behalf of Seller;

 

(h)     Executed Lease in accordance with Section 3.4;

 

(i)     The Contracts assumed by Buyer (if any);

 

(j)     All keys and lock combinations for the Property and all leasing and other files relating to the Property and all other licenses, certificates, permits, plans, books, records and reports and other materials that comprise the Intangible Property, to the extent such items are in Seller's actual possession or control (provided, that Seller will be permitted to retain any of such items or duplicates thereof as are needed by Seller to continue its operations under the Lease); and

 

(k)     All other instruments and documents reasonably required to effectuate this Agreement and the transactions contemplated thereby.

 

8.3      Buyer’s Closing Deliveries . At Closing, Buyer shall deliver or cause to be executed and delivered to the Escrow Agent each of the following items:

 

(l)     The Bill of Sale;

 

(m)     The Settlement Statement;

 

(a)     The Assignment and Assumption Agreement (if applicable);

 

(b)     Executed Lease in accordance with Section 3.4;

 

(c)     Such evidence as may be reasonably and customarily required by the Title Company with respect to the authority of' the person(s) executing the documents required to be executed by Buyer on behalf of Buyer;

 

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(d)     Immediately available funds in an amount necessary to fund the Purchase Price and other payments required of Buyer; and

 

(e)     All other instruments and documents reasonably required to effectuate this Agreement and the transactions contemplated thereby.

 

8.4      Delivery of Deposits . On the Closing Date the Escrow Agent will deliver or cause to be delivered the Deposit pursuant to the terms of the Deposit Escrow Agreement.

 

ARTICLE 9

 

Cas ual and Co ndemnation

 

9.1      Damage . If, prior to the Closing, all or any portion of the Property is damaged by fire or any other cause whatsoever, Seller shall promptly give Buyer written notice of such damage.

 

(a)     Minor Damage. If the cost for repairing such damage is One Million and 00/100 Dollars ($1,000,000.00) or less (as determined by Seller's independent insurer), then Buyer shall at Closing receive the amount of the deductible plus all insurance proceeds received by Seller as a result of such loss, or an assignment of Seller's rights to such insurance proceeds, and this Agreement shall continue in full force and effect with no reduction in the Purchase Price, and Seller shall have no further liability or obligation to repair such damage or to replace the Property. Regardless of the size of the loss, for any damage not repaired prior to Closing, Seller shall not agree to any insurance settlement without Buyer's prior written consent, not to be unreasonably withheld, conditioned or delayed.

 

(b)     Major Damage, If the cost for repairing such damage is greater than One Million and 00/100 Dollars ($1,000,000.00) (as determined by Seller's independent insurer), then Buyer shall have the option, exercisable by written notice delivered to Seller within ten (10) days after Seller's notice of damage to Buyer, 'which notice from Seller shall be accompanied by the written estimate of the cost for repair, either to (i) receive the amount of the deductible plus all insurance proceeds received by Seller as a result of such loss, or an assignment of Seller's rights to such insurance proceeds, and this Agreement shall continue in full force and effect with no reduction in the Purchase Price, and Seller shall have no further liability or obligation to repair such damage or to replace the Property; or (ii) terminate this Agreement. If Buyer elects to terminate this

 

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Agreement, Buyer shall give written notice to Seller thereof within such ten (I O) day period, the Deposit shall be returned to Buyer, and thereafter neither party will have any further rights or obligations hereunder, except for any obligations that expressly survive termination. If Buyer fails to notify Seller within such ten (10) day period of Buyer's intention to terminate this Agreement, then Buyer shall be deemed to have elected option (i) and Buyer and Seller shall proceed to Closing in accordance with the terms and conditions of this Agreement.

 

9.2      Condemnation and Eminent Domain . In the event that any condemnation proceedings are instituted, or notice of intent to condemn is given, with respect to all or any portion of the Land and/or the Improvements, Seller shall promptly notify Buyer thereof in writing. if the condemnation will not result in a Material and Adverse Effect (as hereinafter defined) on the Property, Buyer shall consummate the purchase of the Property without reduction of the Purchase Price, and the right to collect any condemnation award or compensation for such condemnation shall be assigned by Seller to Buyer at Closing. For the purposes of this Section, "Material and Adverse Effect" shall mean a condemnation (i) for which the pro tanto award is in excess of One Million and 00/100 Dollars ($1,000,000) or (ii) which would result in the Property being left with parking spaces below what is required to be provided under the Lease or by applicable zoning requirements. if the condemnation will result in a Material and Adverse Effect on the Property, Buyer may elect, within ten (10) days of notice thereof, either to (a) accept an assignment of any condemnation award or compensation for such condemnation from Seller at Closing whereupon this Agreement shall continue in full force and effect with no reduction in the Purchase Price, and Seller shall have no further liability or obligation to repair such damage or to replace the Property; or (b) terminate this Agreement. If Buyer elects to terminate this Agreement, Buyer shall give written notice to Seller thereof within such ten (10) day period, the Deposit shall be returned to Buyer, and thereafter neither party will have any further rights or obligations hereunder, except for any obligations that expressly survive termination. If Buyer fails to notify Seller within such ten (10) day period of Buyer's intention to terminate this Agreement, then Buyer shall be deemed to have elected option (a) and Buyer and Seller shall proceed to Closing in accordance with the terms and conditions of this Agreement.

 

ARTICLE 10

 

Brokera g e C ommissions

 

10.1      Representations and Indemnity . Seller and Buyer each mutually represent and warrant to the other that they have not dealt with, and are not obligated to pay, any fees or commissions to any broker in connection with the transaction contemplated by this Agreement other

 

21

 

 

than (i) CBRE, Inc. has been retained by and will be paid by Seller and (ii) Newmark Grubb Levy Strange Beffort by Buyer has been retained by and will be paid by Buyer, Each party will indemnify, defend and hold the other harmless from and against all liabilities, costs, damages and expenses (including reasonable attorneys’ fees) arising from any claims for brokerage or finder's fees, commissions or other similar fees in connection with the transaction covered by this Agreement insofar as such claims shall be based upon alleged arrangements or agreements made by such party or on such party's behalf. The covenants and agreements contained in this Article shall survive the termination of this Agreement or the Closing of the transaction contemplated hereunder.

 

ARTICLE 11

 

D efau l t Termination and Reme dies

 

11.1     Seller Default . In the event that Seller breaches or shall have failed in any material respect on the Closing Date to have performed any of the covenants and agreements contained in this Agreement which are to be performed by Seller on or before the Closing Date ("Seller Default"), then Buyer shall have the right to either (a) receive a refund of the Deposit or (b) take any and all legal actions necessary to compel Seller's specific performance hereunder and to consummate the transaction contemplated by this Agreement in accordance 'with the provisions of this Agreement, provided that any such action must be commenced within ninety (90) days following the Closing Date. In no event shall Seller be liable to Buyer for any consequential or punitive damages based upon any breach of this Agreement, including, without limitation, breaches of representation or warranty. Notwithstanding anything herein to the contrary, if the breach in question is caused by the bad faith, willful and/or intentional act or omission of Seller and/or Seller's agents, then regardless of whether Buyer has elected to enforce specific performance under subsection (b) above or to terminate this Agreement under subsection (a) above, then Seller shall reimburse Buyer for the out-of-pocket costs and expenses incurred by Buyer in connection with this transaction including Buyer's due diligence investigation of the Property and the legal fees and expenses of and court and other costs and expenses of preparing, negotiating and enforcing this Agreement.

 

11.2      Buyer Default . In the event Buyer breaches or shall have failed in any material respect on the Closing Date to have performed any of the covenants and agreements contained in this Agreement which are to be performed by Buyer on or before the Closing Date ("Buyer Default"), Seller shall be entitled to either (a) terminate this Agreement and receive the Deposit as liquidated damages, or (b) take any and all legal actions necessary to compel Buyer's specific performance hereunder and to consummate the transaction contemplated by this Agreement in accordance with the provisions of this Agreement.

 

22

 

 

Seller and Buyer agree that the damages resulting to Seller as a result of such default by Buyer as of the date of this Agreement are difficult or impossible to ascertain and the liquidated damages set forth in the preceding sentence constitute Buyer's and Seller's reasonable estimate of such damages.

 

ARTICLE 12

 

Miscellaneous

 

12.1      Assignment . Buyer may not assign its rights under this Agreement, except as expressly provided in this Section. Buyer may assign its rights and obligations under this Agreement without Seller's consent to any entity affiliated with or under common control with Buyer, but not otherwise; provided, (a) Buyer delivers to Seller written notice of its intention to do so at least five (5) Business Days prior to Closing, which notice shall include the legal name of the proposed assignee, (b) Buyer and the proposed assignee shall execute an assignment and assumption of this Agreement, and (c) in no event shall any assignment of this Agreement release or discharge Buyer from any liability or obligation hereunder.

 

12.2      Notices . Any communication, notice or demand of any kind whatsoever which either party may be required or may desire to give to or serve upon the other shall be in writing and delivered by personal service (including express or courier service) providing receipt for delivery, or by registered or certified mail, postage prepaid, return receipt requested, or by electronic transmission, addressed to such party at the address set forth below. Any such communication, notice or demand shall be deemed to have been duly given or served on the date personally served or delivery is refused, if by personal service, or three (3) days after being placed in the U.S. mail, if mailed, or upon receipt of a confirmation notice before 5:00 p.m. Central Time, if by electronic transmission. Any party may change its address for notice by written notice given to the other in the manner provided in this Section. Notice by either party under this Agreement may be given by counsel to such party.

 

(a)     If to Seller:

 

Hilti, Inc.

5400 South 122 nd E. Ave

Tulsa, OK 74146

Attention: Eugene Hodel

Email: Eugene.Hodel@hilti.com

 

23

 

 

with a copy to:

 

Hilti, Inc.

7250 Dallas Parkway, Suite 1000

Dallas, TX 75024

Attention: Kelly Beaver

Email: Kelly.Beaver@hilti.com

 

(b)     If to Buyer:

 

Educational Development Corporation

10302 East 55 th Place

Tulsa, OK 74146

Attn: Randall White 

Email: rwhite@edcpub.com

with a copy to:

 

(c)     If to the Escrow Agent:

 

Commercial Title & Escrow Services, Inc

4739 E. 91st Street

Tulsa, OK 74137

Attn: Pam Bewly

Email:                                                       

 

12.3      Interpretation . Words of any gender used in this Agreement shall be held and construed to include any other gender, and words of a singular number shall be held to include the plural and vice versa, unless the context requires otherwise.

 

12.4      Captions . The captions used in connection with the Articles of this Agreement are for convenience only and shall not be deemed to extend, limit or otherwise define or construe the meaning of the language of this Agreement*

 

12.5      No Third-Party Beneficiaries . Nothing in this Agreement, express or implied, is intended to confer upon any person, other than the parties hereto and their respective successors and assigns, any rights or remedies under or by reason of this Agreement,

 

24

 

 

12.6      Amendments . This Agreement may be amended only by a written instrument executed by Seller and Buyer (or Buyer's permitted assignee).

 

12.7      Integration . This Agreement (including the schedules and exhibits) embodies the entire agreement between Seller and Buyer with respect to the transactions contemplated in this Agreement, and there have been and are no covenants, agreements, representations, warranties or restrictions between Seller and Buyer with regard thereto other than those set forth or provided for in this Agreement.

 

12.8      Choice of Law; Venue; Jurisdiction . This Agreement shall be construed under and in accordance with the laws of the State where the Property is located. For the purposes of any suit, action or proceeding involving this Agreement, the parties hereby expressly submit to the jurisdiction of all federal and state courts sitting in the State of Oklahoma and consent that any order, process, notice of motion or other application to or by any such court or a judge thereof may be served within or without such court's jurisdiction by registered mail or by personal service, provided that a reasonable time for appearance is allowed, and the parties agree that such courts shall have exclusive jurisdiction over any such suit, action or proceeding commenced by either or both of said parties. In furtherance of such agreement, the parties agree upon the request of the other to discontinue (or agree to the discontinuance of) any such suit, action or proceeding pending in any other jurisdiction. Each party hereby irrevocably waives any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement brought in any federal or state court sitting in the State of Oklahoma and hereby further irrevocably waives any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

12.9      Jury Waiver . In recognition Of the benefits of having any disputes with respect to this Agreement resolved by an experienced and expert person, Seller and Buyer hereby agree that any suit, action or proceeding, whether claim or counterclaim, brought or instituted by any party in connection with this Agreement or any event, transaction or occurrence arising out of or in any way connected with this Agreement or the Property, or the dealings of the parties with respect thereto, shall be tried only by a court and not by a jury. ACCORDINGLY, EACH PARTY HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT

 

BY EITHER PARTY IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY

 

WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF SELLER AND BUYER HEREUNDER, BUYER'S OWNERSHIP OR USE OF THE PROPERTY, AND/OR ANY CLAIMS OF INJURY OR DAMAGE.

 

25

 

 

 

12.10      Counterparts . This Agreement may be executed in two (2) or more counterparts, each of which shall be an original but such counterparts together shall constitute one and the same instrument notwithstanding that both Buyer and Seller ate not signatory to the same counterpart. Signatures to this Agreement transmitted by electronic mail in PDF format shall be valid and effective to bind the party so signing. Each party agrees to promptly deliver an execution original to this Agreement with its actual signature to the other party, but a failure to do so shall not affect the enforceability of this Agreement, it being expressly agreed that each party to this Agreement shall be bound by its own telecopied signature and shall accept the telecopied signature of the other party to this Agreement.

 

12.11      Business Day "Business Day" means any day on which business is generally transacted by banks in the State of Oklahoma. In the event any date hereunder (including the Closing Date) falls on a Saturday, Sunday or legal holiday, the date applicable shall be the next Business Day.

 

12.12      Time of the Essence . Time is of the essence of this Agreement.

 

12.13      Use of the Proceeds to Clear Title . TO enable Seller to make conveyance as herein provided, Seller may, at the time of Closing, use the Purchase Price or any portion thereof to clear the title of any or all encumbrances or interests, provided that provision reasonably satisfactory to Buyer's attorney and the Title Company is made for prompt recording of all instruments so procured in accordance with conveyancing practice in the jurisdiction in which the Property is located.

 

12.14      Submission not an Offer or Option . The submission of this Agreement or a summary of some or all of its provisions for examination or negotiation by Buyer or Seller does not constitute an offer by Seller or Buyer to enter into an agreement to sell or purchase the Property, and neither party shall be bound to the other with respect to any such purchase and sale until a definitive agreement satisfactory to Buyer and Seller in their sole discretion is executed and delivered by both Seller and Buyer.

 

12.15      No Rule of Construction . Seller and Buyer have each been represented by counsel in the negotiations and preparation of this Agreement; therefore, this Agreement will be deemed to be drafted by both Seller and Buyer, and no rule of construction will be invoked respecting the authorship of this Agreement.

 

12.16      No Memorandum . Buyer and Seller agree not to record this Agreement or any memorandum hereof.

 

26

 

 

12.17      Press Releases . Prior to and after the Closing any press release or other public disclosure of information with respect to the sale contemplated herein or any matters set forth in this Agreement made or released by or on behalf of either party shall be subject to the other party's prior approval, such approval not to be unreasonably withheld, other than: (i) disclosures to investors, (ii) disclosures as required by applicable laws or regulations applicable to Buyer or Seller or their respective affiliates, (iii) disclosures made on the advice of counsel to comply with laws or regulations applicable to Buyer or Seller or their respective affiliates, (iv) disclosure made to Buyer's consultants or lenders, or (v) after Closing only (in addition to the disclosures permitted in clauses (i), (ii), (iii), and (iv)), Seller or Buyer may disclose the fact that the sale occurred, the identity of the Buyer and Seller, and the closing date.

 

12.18      Attorneys’ Fees and Costs . In the event either party is required to resort to litigation to enforce its rights under this Agreement, the prevailing party in such litigation will be entitled to collect from the other party reasonable costs, expenses and attorneys' fees (including the fees of any in-house legal staff of either party of their affiliates) incurred in connection with such action. Said attorneys' fees and reasonable costs shall include any attorneys' fees and costs incurred after judgment in prosecuting or defending an appeal from said judgment, or in enforcing payment of any amount due under the judgment, or obtaining injunctive or other relief in support of said judgment.

 

12.19      Severability. In the event that any one or more of the provisions contained in this Agreement (except the provisions relating to Seller's obligations to convey the Property and Buyer's obligation to pay the Price, the invalidity of either of which shall cause this Agreement to be null and void) are held to be invalid, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provisions hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had not been contained herein; provided, however, that the parties hereto shall endeavor in good faith to rewrite the affected provision to make it (a) valid, and (b) consistent with the intent of the original provision.

 

[Remainder of Page Intentionally Left Blank]

 

 

 

 

 

 

27

 

 

 

IN WITNESS WHEREOF, the parties have executed this instrument as of the day and year first set forth above.

 

SELLER :

 

Hilti, Inc., an Oklahoma Corporation

 

By:      /s/ Kelly Beaver                                 

Name: Kelly Beaver                                      

Title:    Vice President Legal                          

 

 

 

 

BUYER :

 

Educational Development Corporation, an Oklahoma corporation

 

By:                                                                 

Name:                                                            

Title:                                                               

 

 

 

Schedule of Exhibits and Schedules :

 

Exhibit A

-

Legal Description

Exhibit B

-

Deposit Escrow Agreement

Exhibit C

-

Form of Deed

Exhibit D

-

Form of Bill of Sale

Exhibit E

-

Certificate of Non-Foreign Status

Exhibit F

-

Form of Assignment and Assumption Agreement

 

 

 

 

 

Exhibit A

 

Legal Description

 

Lots One (l) and Two (2), Block One (i), and all of vacated 53rd Street and vacated 120th East Avenue and vacated 54th Street and Lots One (l ) thru Four (4) and part of vacated 55th Street and vacated 1 19th Street adjacent to the West 50th thereof in Block Two (2) in METRO PARK SUBDIVISION OF Lot One (l), Block Three (3) a/k/a 5404 South 122 Ave East, Tulsa Oklahoma

 

 

 

 

[Legal description to be confirmed]

 

 

 

 

 

 

 

 

Exhibit A-I

 

[Legal description of Vacant Land]

 

A tract of land containing 15.94 gross acres in Section Thirty-two (32), Township Nineteen (19) North, Range Fourteen (14) East in Tulsa County, Oklahoma adjacent to the HILT} NORTH AMERICAN HEADQUARTERS BUILDING (a/k/a 5404 South 122 Ave East, Tulsa Oklahoma), being all of Lot 4 and part of Lot 3 and 4, Block 2, Metro Park Resubdivision, an addition to the City of Tulsa, Tulsa County, Oklahoma, and part of vacated South t 1 9 th East Avenue and part of East 54 th Street South [with the exact legal description to be determined by the surveyor]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit B

 

Deposit Escrow Agreement

 

Commercial Title & Escrow Services, Inc.

Attn: Pam Bewly

4739 East 91 Street

Tulsa, OK 74137

 

Dear Ms. Bewly:

 

 

Reference is made to that certain Purchase and Sale Agreement dated as of, October 2015, (as the same may be amended, modified, supplemented, renewed or restated from time to time, the "Purchase Agreement"), between Hilti, Inc., an Oklahoma corporation ("Seller"), and Educational Development Corporation, an Oklahoma corporation ("Buyer"). All terms used herein which are defined in the Purchase Agreement shall have the meanings ascribed thereto in the Purchase Agreement, unless otherwise defined herein,

 

Buyer and Seller have agreed to select Commercial Title & Escrow Services, Inc.as "Escrow Agent" with respect to the Deposit to be made by Buyer pursuant to the Purchase Agreement. The purpose of this Escrow Agreement is to prescribe instructions governing the services of Escrow Agent with respect to the Deposit.

 

Buyer, Seller and Escrow Agent agree as follows:

 

1. Seller and Buyer hereby engage Escrow Agent to serve as the escrow agent with respect to the Deposit, and Escrow Agent hereby accepts such engagement.

 

2, Upon receipt of the Deposit from Buyer, Escrow Agent agrees to invest such funds in a FDIC insured depository.

 

3. Escrow Agent shall disburse the Deposit and all interest earned thereon, if in the form of cash, in accordance with the terms and conditions of the Purchase Agreement.

 

4. In the event of any dispute between Buyer and Seller regarding the disbursement of the Deposit, or in the event that Escrow Agent shall receive conflicting demands or instructions with respect thereto, Escrow Agent shall withhold such disbursement until such dispute is resolved, but such withholding shall not extend for more than thirty (30) days after such conflicting demands are received by Escrow Agent, and in which event, Escrow Agent shall interplead said funds as provided below. Alternatively, Escrow Agent shall be entitled to deposit the Deposit into a court of general jurisdiction in the State of Oklahoma and to interplead Buyer and Seller in connection therewith. Buyer and Seller hereby consent to the jurisdiction of such court in connection with any such dispute.

 

 

 

 

 

5.     Escrow Agent shall be entitled to reasonable compensation for its services pursuant to this Escrow Agreement, and Buyer and Seller each agree to pay one-half of such compensation to Escrow Agent.

 

6.     Escrow Agent shall not be liable for any damage, liability or loss arising out of or in connection with the services rendered by Escrow Agent pursuant to the Purchase Agreement or this Escrow Agreement, except for any damage, liability or loss resulting from the willful or negligent conduct of (he Escrow Agent or any of its officers or employees.

 

7. Any communication, notice or demand of any kind whatsoever which either party may be required or may desire to give to or serve upon the other shall be in writing and delivered by personal service (including express or courier service) providing receipt for delivery, or by registered or certified mail, postage prepaid, return receipt requested, or by electronic transmission, addressed to such party at the address set forth below. Any such communication, notice or demand shall be deemed to have been duly given or served on the date personally served or delivery is refused, if by personal service, or three (3) days after being placed in the U.S. mail, if mailed, or upon receipt of a confirmation notice before 5:00 p.m. CST, if by electronic transmission. Any party may change its address for notice by written notice given to the other in the manner provided in this Section. Notice by either party under this Agreement may be given by counsel to such party.

 

As to Seller:     Hilti, Inc.

5400 South 122 nd E. Avenue

Tulsa, OK 74146

Attention: Eugene Hodel

Email: Eugene.Hodeb@hilti.com

 

and

 

With a copy to:

 

As to Buyer:

 

Educational Development Corporation

10302 East 55 th Place Tulsa, OK 74146

Attn: Randall White

Email: rwhite@edcpub.com 

 

8.     The instructions contained herein may not be modified, amended or altered in any way except by a writing (which may be in counterpart copies) signed by both Seller and Buyer and acknowledged by Escrow Agent.

 

9.     Buyer and Seller reserve the right, at any time and from time to time, to substitute a new escrow agent in place of Escrow Agent.

 

10.   This Escrow Agreement is intended solely to supplement and implement the provisions of the Purchase Agreement and is not intended to modify, amend or vary any of the rights or obligations of Buyer or Seller under the Purchase Agreement.

 

Please confirm your acceptance of the terms and conditions of this Escrow Agreement by signing and dating three (3) copies hereof at the place indicated below,

 

[signature page follows.]

 

 

 

 

 

 

Sincerely,

 

BUYER:

 

Education Development Corporation,

 

 

By:                                                                 

Name:                                                             

Title:                                                               

 

 

SELLER:

 

Hilti, Inc.

 

By:                                                                 

Name:                                                             

Title:                                                               

 

 

ESCROW AGENT:

 

COMMERCIAL TITLE & ESCROW SERVICES, INC.

 

By:                                                                 

Name:                                                             

Title: Commercial Escrow Officer

 

 

 

 

 

Exhibit C

 

Form of Deed

 

After filing please return to:

                                                            

                                                           

                                                           

                                                           

 


Reserved for recording information:                           

 

 

GENERAL WARRANTY DEED

 

THIS GENERAL WARRANTY DEED made this  1st   day of  October 2015, between Hilti, Inc. party of the first part, and  Educational Development Corporation, its successors and assigns, party of the second part.

 

WITNESSETH, that in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00), the receipt of which is hereby acknowledged, said party grantor does, by these presents, grant. bargain, sell and convey unto said party of the second part, its successors and assigns, all of the following described real estate, situated in Tulsa County, State of Oklahoma, being more particularly described on Exhibit A and Exhibit A-I attached hereto and made a part hereof.

 

This conveyance is made and accepted subject to all matters (the "Permitted Exceptions") set forth on Exhibit B attached hereto and incorporated herein by reference.

 

TO HAVE AND TO HOLD THE SAME together with all of grantor's right, title and interest in and to all minerals which have not heretofore been reserved or conveyed of record and all rights and privileges incident thereto, and water rights and all easements, licenses, covenants and other rights-of-way or other appurtenances used in connection with the beneficial use and enjoyment of the land and the improvements and including any appurtenant rights to any land lying in the bed of any existing dedicated street, road or alley adjoining the land and to all strips and gores adjoining the land thereto belonging or in any wise appertaining forever. And said Hilti, Inc., its successors and assigns do hereby covenant, promise and agree to and with said party of the second part, at the delivery of these presents that it is lawfully seized in its own right of an absolute and indefeasible estate of inheritance in fee simple, of and in all singular the above granted and described premises, with the appurtenances; that the same are free, clear and discharged and unencumbered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments and encumbrances, of whatsoever nature and kind and that said patty of the first part will WARRANT AND FOREVER DEFEND the same unto the party of the second part, its successors and assigns, against the party of the first part, its successors and assigns, and all and every person or persons whomsoever, lawfully claiming or to claim the same.

 

 

 

 

 

 

IN WITNESS WHEREOF, the said party of the first part has caused these presents to be signed in its name, and the Corporate seal to be affixed, in, the year and day first above written.

 

CONSIDERATION LESS THAN THE SUM OF ONE HUNDRED DOLLARS AND NO/100 ($100.00).

 

Hilti, Inc.

 

By:                                                                 

                                                               

                                                               

 

 

STATE OF                                                              )

                                                                               ) ss.

COUNTY OF                                                         )

 

 

 

 

BEFORE ME, the undersigned, a Notary Public, in and for said County and State, on this                    day of                              , 2015, personally appeared to me known to be the President of Hilti, Inc. who executed the within and foregoing instrument and acknowledged to me that he executed the same as his free and voluntary act and deed, and as the free and voluntary act and deed of said corporation for the uses and purposes therein set forth.

 

Given under my hand and seal of office the day and year last above written.

 

 

                                                                             

NOTARY PUBLIC

 

My Commission Expires:

 

                                                            

 

 

[Exhibits A and A - I
 will be added to Deed]

 

 

 

 

 

 

Exhibit B to Deed

 

Permitted Exceptions

 

 

 

 

 

 

 

 

 

 

 

Exhibit D

 

Form of Bill of Sale

 

Hilti, Inc. ("Seller"), for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby grants, bargains, sells, transfers and delivers to [                           ], a [                            ] ("Buyer"), all of the fixtures, attached to or located on and exclusively used in connection with the real property described on Exhibit A (the "Real Property") attached hereto, including, if any, all blinds, window shades, screens, screen doors, storm windows and doors, awnings, shutters, furnaces, heaters, heating equipment, stoves, ranges, oil and gas burners and fixtures appurtenant thereto, hot water heaters, plumbing and bathroom fixtures, electric and other lighting fixtures, trees, shrubs, plants, and air conditioning equipment and ventilators (collectively, the "Personal Property"), but specifically excluding from the Personal Property all property leased by Seller or owned by tenants or others and further excluding items of personal property not exclusively used in connection with the Real Property, if any, to have and to hold the Personal Property unto Buyer, its successors and assigns, forever.

 

Seller hereby represents and warrants to Buyer that Seller has the full right, power and authority to sell the Personal Property and to make and execute this Bill of Sale. Seller hereby agrees to warrant and defend the title to the Personal Property conveyed hereby to Buyer against the lawful claims and demands of all persons claiming by, through or under Seller. Except as set forth above and in the Purchase and Sale Agreement by and between Seller and Buyer dated as of                            (the "Purchase Agreement"), Seller grants, bargains, sells, transfers and delivers the Personal Property in its "AS IS" condition, WITH ALL FAULTS, IF ANY, and makes no representations or warranties, direct or indirect, oral or written, express or implied, as to title, encumbrances and liens, merchantability, condition or fitness for a particular purpose or any other warranty of any kind, all of which representations and warranties are expressly hereby disclaimed and denied.

 

Buyer agrees that the liability of Seller under this Bill of Sale, the Purchase Agreement, and any other agreement, document, certificate or instrument delivered by Seller to Buyer, or under any law applicable to the Property or this transaction, shall be limited as provided in the Purchase Agreement.

 

Capitalized terms used and not otherwise defined herein shall have the meanings given to such terms in the Purchase Agreement.

 

[Remainder of Page Intentionally Blank]

 

 

 

 

 

     Executed under seal this          day of                           2015.

 

SELLER:

 

Hilti, Inc., an Oklahoma corporation

 

 

By:                                                                 

Name:                                                             

Title: President

 

Acknowledg ment to Bu y er

 

The Buyer hereby accepts the Personal Property subject to all conditions and limitations stated above.

 

BUYER:

 

Educational Development Corporation, an Oklahoma corporation

 

By:                                                                 

Name:                                                             

Title:                                                               

 

 

[Exhibits A and A-I to be added to Bill of Sale]

 

 

 

 

 

Exhibit E

 

Certificate of Non-Foreign Status

 

Dated: 2015

 

                                      ,

 

Section 1445 of the Internal Revenue Code provides that a transferee (buyer) of a U.S. real property interest must withhold tax if the transferor (seller) is a foreign person. For U.S. tax purposes (including Section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by Hilti, Inc. ("Seller"), the undersigned hereby certifies the following on behalf of Seller.

 

l . Seller is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);

 

2.     Seller's U.S. employer identification number is; and

 

3.     Seller's office address is

 


 

4.     Seller is not a disregarded entity as defined in Section 1.445-2(b)(2)(iii) of the Internal Revenue Code and income Tax Regulations.

 

Seller understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

 

Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete, and I further declare that have authority to sign this document on behalf of Seller.

 

Hilti, Inc.

 

By:                                                                 

Name:                                                             

Title: President

 

 

 

 

 

 

 

Exhibit F

 

Assignment and Assumption Agreement

 

THIS ASSIGNMENT AND ASSUMPTION AGREEMENT “Assignment” is entered as of this             day of                     20       by and between                             a                       with its offices at                                                     ("assignor") and                                                        company whose mailing address is                                                                              ("Assignee"). 

 

WHEREAS, in accordance with that certain Purchase and Sale Agreement ("Agreement") dated as of                           ,  20 between Assignor, as Seller, and Assignee, as Buyer, Assignor has agreed to convey to Assignee that certain Property located at                                                                              as more particularly described on Exhibit A and Exhibit A-I to the Agreement (capitalized terms used in this Assignment and not specifically defined herein will have the meanings ascribed to them in the Agreement); and

 

WHEREAS, Assignor desires to assign its interests in and Assignee desires to accept the assignment of Assignor's interest in the Leases and Contracts and various tangible and intangible property affecting the Property, on the terms and conditions provided herein including Assignee's assumption of Assignor's obligations under the Leases and Contracts; and

 

NOW, THEREFORE, IN CONSIDERATION of the purchase of the Property by Assignee from Assignor, and for $10.00 and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

 

1.    Assignment of Leases .

 

Assignor hereby assigns and transfers to Assignee as of the date hereof all of Assignor's right, title and interest in and to the Leases described on Exhibit A attached hereto and made a part hereof including any security deposits thereunder held by Assignor and any lease guaranties pertaining to the Leases.

 

Assignee hereby accepts the assignment of all of Assignor's right, title and interest in and to the Leases and assumes all the obligations of Assignor under and arising out of the Leases which are applicable to the period from and after the date hereof and of the obligations of Assignor respecting the security deposits turned over to Assignee.

 

2.        Assignment of Contracts .

 

Assignor hereby assigns and transfers to Assignee as of the date hereof all of Assignor's right, title and interest in and to the Contracts with the service providers described on Exhibit B attached hereto and made a part thereof.

 

 

 

 

 

Assignee hereby accepts the assignment of all of Assignor's right, title and interest in and to said Contracts and assumes all the obligations of Assignor under and arising out of the Contracts which are applicable to the period from and after the date hereof.

 

Non-recourse to Assignor .

 

The assignments and transfers of Assignor made pursuant to this Agreement and Assignee's acceptance of the same are without any representation (other than the representation of due execution set forth in paragraph 5 hereof) or warranty by Assignor and without any right of recourse against Assignor other than as set forth in the Agreement.

 

Successors and Assigns .

 

All of the covenants, terms and conditions set forth herein shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns.

 

Authority

 

Assignor and Assignee covenant and represent to each other that they have the power and authority to enter into this Agreement and that the persons duly executing this Agreement on behalf of Assignor and Assignee, respectively, have the requisite power and authority to do so.

 

Counterparts

 

This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.

 

IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the date first above written.

 

ASSIGNOR :

 

By:                                                                 

Name:                                                             

Title:                                                               

 

 

ASSIGNEE :

 

By:                                                                 

Name:                                                             

Title:                                                               

 

 

 

 

Exhibit 10.9

 

 

 

LEASE AGREEMENT

 

For Property Located at:

5400 S. 122 nd E. Ave.

Tulsa, OK 74146

 

 

Landlord:

Educational Development Corporation

 

 

Tenant:

Hilti Inc.

 

 

 

 

Dated: December 1, 2015

 

 

 

 

TABLE OF CONTENTS

 

 

Page

1. Premises

4

2. Acceptance of Premises

4

3. Term, Early Termination, Extension Option 

4

4. Surrender of the Premises

4

5. Holdover 

4

6. Rent

5

7. Improvements and Alterations

6

8. Repairs/Maintenance

7

9. Non-Terminable 

7

10. Loss or Damage and Insurance

7

11. Insurance Requirements

8

12. Waiver of Subrogation

10

13. Use of Premises

10

14. Utilities

11

15. Tenant to Comply with Matters of Record

11

16. Enjoyment of Premises, Quiet Possession 

11

17. Assignment and Subletting, Transfer of Interest

11

18. Removal of Personal Property 

11

19. Property and Improvements at Tenant's Risk

12

20. Governmental Regulations

12

21. ADA Compliance

12

22. Condemnation 

13

23. Destruction or Damage

14

24. Inspection 

14

25. Mortgage

14

26. Signs 

15

27. Notices

15

28. Estoppel Certificates

16

29. Default

16

30. Rights and Remedies

18

31. Costs of Suit 

18

32. Severability

18

33. Successors and Assigns 

18

34. Parties 

19

35. Waivers

19

36. Approval 

19

37. Controlling Law 

19

38. Captions 

19

39. Relationship 

19

40. Entire Agreement 

19

41. Corporate Authority 

19

42. Hazardous Waste 

20

43. Limitation of Landlord's Liability 

22

44. Transfer of Landlord's Interest

22

45. Intentionally Omitted

22

 

 

 

 

 

46. Parking 

23

47. Time of Essence 

23

48. Submission of Lease 

23

49. Patriot Act Representation 

23

50. Waiver of Landlord’s Lien 

23

51. Landlord’s Security Interest in Tenant’s Property

23

52. Tenants Right to Encumber Tenant’s Personal Property 

23

 

 

 

 

List of Exhibits:

Exhibit A      Legal Description of the Building/Premises

Exhibit B      Permitted Encumbrances

 

 

 

 

 

 

LEASE AGREEMENT

 

 

THIS LEASE AGREEMENT (this " Lease "), made and entered into as of this _____ day of November, 2015 (the " Effective Date "), by and between Educational Development Corporation, a Delaware corporation (" Landlord "), and Hilti, Inc., an Oklahoma corporation (" Tenant ").

 

WITNESSETH:

 

1.       Premises. Subject to the provisions of this Lease, Landlord hereby leases unto Tenant, and Tenant hereby leases from Landlord, upon the terms and conditions hereinafter set forth, all those certain buildings and related space, including all adjoining land and parking areas located in Tulsa County, Oklahoma, which is further described on Exhibit A attached hereto, and is more commonly known as 5400 S. 122 nd E. Ave., Tulsa, OK 74146, approximately one hundred eighty-one thousand three hundred, (181,300) square feet of Rentable Area (defined below) (collectively all such space is referred to hereinafter as the " Building ") and all related improvements including all of the parking, (the Building and all related improvements are sometimes hereinafter defined as the " Premises "). Tenant's right to use the Premises includes the right to use all of the parking spaces shown on Exhibit A . Provided, however, even though the Tenant’s employee cafeteria is located within the Premises, Landlord’s employees will at all times be permitted to utilize said cafeteria (with appropriate security measures to prevent Landlord’s employees from having access to other portions of the Premises).

 

2.       Acceptance of Premises. Landlord has made no representations or promises with

respect to the Premises or this Lease, except as expressly set forth herein.

 

3.       Term, Early Termination, Extension Option. The term of this Lease shall commence upon the Effective Date and, unless otherwise terminated pursuant to the provisions of this Lease, shall continue in force and effect until 5:00 p.m. on the fifteenth (15th) anniversary date of the Effective Date (the " Term "). Tenant shall have one (1) five (5) year extension option after the expiration of the 15 year Term (the “ Option ”). In order to exercise the Option, Tenant shall provide 270 days prior written notice to Landlord of Tenant’s desire to exercise the Option. The terms of the Lease during the 5 year extension period shall be the same terms as set forth herein and the Term shall, after the exercise of the Option, include the additional five (5) years.

 

4.       Surrender of the Premises. Subject to the provisions of this Lease, Tenant shall keep the Premises in good order and repair, and upon the expiration or other termination of this Lease, quit and surrender the Premises to Landlord in the same condition as on the Effective Date, ordinary wear and tear excepted, except as otherwise provided herein.

 

5.       Holdover. In the event Tenant remains in possession of the Demised Premises after the expiration of the Term of this Lease without the consent of Landlord, Tenant shall be deemed to be occupying the Premises as a tenant from month-to-month at a rental equal to the NNN Base Rental, plus the Adjusted Rental, plus thirty five percent (35%) and the Additional Rental provided in this Lease, and otherwise subject to all the conditions, provisions and obligations of this Lease insofar as the same are applicable to a month-to-month tenancy. Either party shall have the right to terminate such tenancy upon thirty (30) days' written notice to the other. During the holdover period, Landlord shall have all rights and remedies available to Landlord under this Lease and at law and in equity. Notwithstanding anything contained herein to the contrary, in no event may a month-to-month tenancy be longer than six (6) months immediately following the expiration of the Term.

 

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6.       Rent. During the Term, Tenant shall pay to Landlord at Landlord's office or at such other place as Landlord may from time to time designate in writing, the “ Rent " (defined below) together with any other charges which may become due to Landlord under this Lease as follows:

 

(a)       NNN Base Rental. NNN Base Rental ” shall mean, beginning upon the Effective Date and continuing for the Term of this Lease, an amount of $105,758.92 per month. Said rent is calculated at the rate of $7.00 per square foot per year based upon a square footage of 181,300 square feet. Tenant shall pay one (1) full month’s NNN Base Rental on the Effective Date applicable to the first month’s Rent due under this Lease regardless of the day of the month of the Effective Date of this Lease. If the Effective Date is a date which is any day other than the first day of the month, the second month’s Rent shall be prorated to give Tenant credit for the amount of money paid for the number of days in the first month prior to the Effective Date for which NNN Base Rental was paid. Further, Rent shall be pro-rated at the end of the Term for any portion of a month at the end of the Term.

 

(b)       Rent Increase. Beginning twelve (12) months after the Effective Date, the NNN Base Rental shall be increased by an adjustment equal to two percent (2.0 %) (the " Adjusted Rental ") per year which adjustment shall be effective on each annual anniversary of the Effective Date. Tenant covenants and agrees that the NNN Base Rental, as increased by the Adjusted Rental, shall thereafter be payable hereunder until the next escalation pursuant to the terms of this Lease. Any delay or failure of Landlord in computing or billing Tenant for the Adjusted Rental as provided herein shall not constitute a waiver of or in any way impair the continuing obligation of Tenant to pay the Adjusted Rental. Tenant's obligation to pay the Adjusted Rental pursuant hereto shall continue and shall cover all periods up to the date that this Lease is to expire and shall survive any expiration, termination or renewal of this Lease. The NNN Base Rental together with the Adjusted Rental is sometimes referred to herein as (the

Rent ”).

 

(c)       Operating Expenses. This is an absolute triple net Lease. Tenant covenants and agrees to pay directly to the third parties engaged by Tenant (and not to the Landlord), the following: (i) expenses incurred by Tenant in connection with the day-to-day operation, maintenance, day-to-day repair, use or occupation of the Premises, including parking lot security expense (if any), parking lot and grounds maintenance, janitorial, (ii) real estate taxes, assessments and other impositions, (iii) utility charges, and (iv) premiums for insurance. Operating Expenses shall also include 100% of the costs of Tenant related to the cafeteria, including but not limited to, Landlord’s payments to the employee cafeteria concessionaire. By way of further clarity with respect to the payment of Operating Expenses, Tenant and Landlord will each pay 100% of the costs of janitorial services for their respective spaces without reimbursement from the other party. Similarly, Landlord will pay 100% of the ad valorem taxes for the Corporate Campus and will be reimbursed by Tenant for 30% of said annual tax liability. Operating Expenses shall not include: capital reserve for all structural and non-structural capital improvements and replacement costs.

 

(d)       Late Charge/Default Rate. Anything to the contrary contained in this Lease notwithstanding, in the event any payment of Rent is more than five (5) days past due, an administrative charge equal to five percent (5%) of such past due sum shall be due and payable by Tenant to Landlord, upon written demand (provided, that Landlord will give Tenant notice of any past due Rent and the late charge will not apply unless Tenant has previously been more than five days late in payment during the prior twelve months). The parties have agreed that said 5% charge bears a reasonable relationship to Landlords costs and expenses which relate to such a breach. In addition, any sum more than thirty (30) days past due shall bear interest at the rate of ten percent (10%) per annum (the " Default Rate ") until paid in full, with said interest to be due and payable by Tenant to Landlord, upon written demand.

 

5

 

 

(e)       Security Deposit. Upon the Tenant’s execution of this Lease, Tenant shall deposit with Landlord a cash sum in the amount of one month’s rent or $105,758.92 (the “ Security Deposit ”). Landlord shall hold the Security Deposit as security for the performance of Tenant’s obligations under this Lease. If Tenant defaults as to any provision of this Lease, Landlord may, without prejudice to any other remedy it has, pay from the Security Deposit only those sums reasonably necessary to (i) remedy defaults in the payment of any Rent, (ii) repair damage caused by Tenant, or (iii) clean the Premises, if not returned in the condition required under this Lease.

 

If Landlord disposes of its interest in the Premises, Landlord may deliver or credit the Security Deposit to Landlord’s successor in interest in the Premises. However, Landlord shall only be relieved of responsibility for the Security Deposit if Landlord and Landlord’s successor jointly provide written notice to Tenant acknowledging the transfer of the Security Deposit and providing that Landlord’s successor is responsible for the return of such Security Deposit to Tenant, subject to the provisions hereof, upon the expiration of the Term.

 

Tenant is not entitled to any interest on the Security Deposit.

 

The Security Deposit shall be returned by Landlord to Tenant on the following dates in the following amounts as long as Tenant is not in default of this Lease when a payment is due:

 

(i)      $105,758.92 on or before 30 days following the expiration or termination of the Term.

 

If Tenant is in default of this Lease when a portion of the Security Deposit is to be returned to Tenant pursuant to the schedule above, Landlord may deduct from the amounts to be returned an amount which Landlord reasonable believes it is entitled pursuant to this Lease. In that event, Landlord shall return the unused portion of the Security Deposit to Tenant within thirty (30) days after expiration or termination of the Term as long as Tenant is not then in default of this Lease. Any deductions from the Security Deposit shall be accompanied by a written notice from Landlord to Tenant specifying the amount to be deducted from the Security Deposit and why, along with a commercially reasonable substantiation of the amounts due, including copies of any invoices.

 

7.       Improvements and Alterations. Tenant at its sole cost and expense shall have the right, from time to time, to make improvements or alterations to the Premises, subject to the following conditions:

 

(a)      No improvement or alteration shall at any time be made which shall impair the structural soundness or diminish the value of the Premises.

 

(b)      No structural improvement or alteration involving an expenditure in excess of Fifty Thousand and No/100 Dollars ($50,000.00) shall be made without first obtaining Landlord's written approval of the plans therefore; provided, such approval shall not be unreasonably withheld, conditioned or delayed by Landlord. Tenant shall furthermore first obtain Landlord's written approval before any modification or changes are made in such plans after Landlord's approval thereof.

 

(c)      No improvement or alteration shall be undertaken until Tenant shall have procured and paid for all required municipal and other governmental permits and authorizations of the various municipal departments and governmental subdivisions having jurisdiction.

 

(d)      All work done in connection with any improvements or alterations shall be done in a good and workmanlike manner and in compliance with all building and zoning laws, and with all other laws, ordinances, rules, and requirements of any Federal, state or municipal government or agency having jurisdiction.

 

6

 

 

(e)      Tenant shall keep the Premises free from any liens arising out of work performed, materials furnished or obligations incurred by Tenant, and Tenant shall indemnify, hold harmless and defend Landlord from any liens and encumbrances arising out of any work performed or materials furnished by or at the direction of Tenant. In the event Tenant shall not, within twenty (20) days following the imposition of any such lien, cause such lien to be released of record by payment or posting a proper bond, Landlord shall have, in addition to all other remedies provided herein and by law, the right, but not the obligation, to cause the same to be released by such means as it shall deem proper, including payment of the claim giving rise to such lien. All such sums paid by Landlord and all expenses incurred in connection therewith, including attorneys' and experts fees and costs, shall be payable to Landlord by Tenant on demand with interest at the Default Rate from the date payment of such obligation is due and payable.

 

(f)      Any improvements to or alteration of the Premises, except moveable furniture, fixtures, equipment placed by Tenant in the Building (which shall remain the property of Tenant), shall at once become the absolute property of Landlord and remain upon and be surrendered with the Premises as a part thereof at the termination of this Lease without disturbance or injury.

 

The provisions of this Paragraph 7 do not apply to Capital Expenditures made pursuant to Paragraph 8 below.

 

8.       Repairs/Maintenance. Tenant shall, at Tenant’s sole cost and expense, maintain and repair (subject to ordinary wear and tear) the following portions of the Premises: the exterior of the Building, entrances, exits, structural components, all exterior walls, plate glass, the foundation, the roof, all major Building systems, including all mechanical, electrical, plumbing, HVAC and emergency generator systems. For purposes of clarity, the Tenant’s obligations set forth in this paragraph shall include the separate building located on the south side of the “Corporate Campus” of which Premises are a part and in which the boilers are located, and shall further include all underground lines originating in the boiler building and serving both the Premises and the non-leased space owned by Landlord; provided, that if Landlord or a tenant of Landlord elects to install additional air conditioning in that part of the Corporate Campus occupied by it, then all incremental cost for such air conditioning will be borne by Landlord or such tenant , and Tenant will have no responsibility for such incremental air conditioning expense.

 

All repairs, replacements, and renewals shall be at least equal in quality of materials and workmanship to that originally existing in the Premises. Tenant shall not cause or permit any waste to the Premises .

 

9.       Non-Terminable. Except as otherwise provided herein, Tenant shall not have any right to terminate this Lease during the Term. Except as otherwise provided herein, the obligations of Tenant under this Lease shall not be affected by any interference with Tenant's use of any of the Premises for any reason, including the following: (i) any damage to or destruction of any of the Premises by any cause whatsoever, (ii) any Condemnation, (iii) the prohibition, limitation or restriction of Tenant's use of any of the Premises, (iv) Tenant's acquisition of ownership of any of the Premises, (v) any default on the part of Landlord under this Lease or under any other agreement, (vi) any latent or other defect in, or any theft or loss of any of the Premises, (vii) the breach of any guaranties of any manufacturer, engineer, contractor or builder of any of the improvements or equipment, or (viii) any other cause, whether similar or dissimilar to the foregoing, any present or future law to the contrary notwithstanding. It is the intention of the parties hereto that the obligations of Tenant under this Lease shall be separate and independent covenants and agreements, and that all Rent payable by Tenant hereunder shall continue to be payable in all events, and that the obligations of Tenant under this Lease shall continue unaffected.

 

10.       Loss or Damage and Insurance. Landlord shall not be liable for any damage to property in the Premises or on or near the Premises caused by gas, smoke, steam, electricity, ice, rain, or snow which may leak

 

7

 

 

from any part of the Premises, or from pipes, appliances or plumbing works. Landlord shall not be liable for any damage to persons or property sustained by Tenant or others due to the Premises or any part thereof being out of repair or due to the happening of accident in or about the Premises or due to any negligence of any tenant or occupant of the Premises, or any other person.

 

Tenant shall indemnify, defend and hold harmless Landlord of and from any and all suits, claims, actions, causes of action, costs, losses, expenses or damages, including attorney's and expert fees, relating to, in connection with, or arising out of or resulting from the use and enjoyment of the Premises and all privileges granted herein by this Lease to Tenant, with respect to all persons, including all agents, employees, servants or invitees of Tenant, as well as all property, whether emanating by way of intentional acts, negligence, non-performance or strict liability.

 

11.      Insurance Requirements.

 

(a) During the Term of this Lease and not fewer than ten (10) business days prior to any entry into the Premises by Tenant, its employees, agents, representatives, or invitees, which entry occurs prior to the Effective Date, Tenant will carry and maintain, at its sole cost and expense, the following types of insurance, in the amounts specified and in the form hereinafter provided for.

 

(i) Commercial general liability insurance covering the Premises and Tenant's use thereof against claims, for the Premises, to afford protection with limits for each occurrence, of not less than Five Million and No/100 Dollars ($5,000,000.00) combined single limit bodily injury and property damage per occurrence and in the aggregate and a deductible of not more than Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00). Such limits may be met in combination with Tenant's umbrella/excess insurance.

 

(ii) (A) Insurance on the "All-Risk" or equivalent form (including coverage for fire, extended coverage, vandalism, malicious mischief and perils broadened to include the so-called "all risk of physical loss", wind/hail, named windstorm, law and ordinance, demolition, and increased cost of construction) on a replacement cost basis against loss or damage to the Premises (including, without in any manner limiting the generality of the foregoing, insurance for collapse due to faulty construction, workmanship or design, and/or flood insurance if the Premises are located in a flood hazard area or such additional insurance as may be required by any mortgagee with a first lien loan secured by the Premises), having a reasonable deductible approved by Landlord; and in an amount sufficient to prevent Landlord or Tenant from becoming a co-insurer of any loss, without deduction for depreciation, but in any event in amounts not less than the greater of (1) one hundred percent (100%) of the actual replacement value of the Premises, all structural, roof, exterior skin, entrances and exits, conveyor systems, and Building systems (HVAC, plumbing and electrical), and Tenant's personal property on the Premises including inventory, trade fixtures, floor coverings and furnishings, or (2) the full face amount of any first lien loan secured by the Premises. Such insurance shall also include terrorism coverage;

 

(B) boiler and machinery or equipment breakdown insurance covering property damage to the Premises and to the major components of any central heating, air conditioning or ventilation systems, and such other equipment as Landlord may require. The policy shall include coverage for business interruption due to mechanical equipment malfunctions, including expediting and extra expense in an amount usual and customary for similar risks, or as determined by Landlord, and having a reasonable deductible approved by Landlord; coverage shall be on a broad form comprehensive basis;

 

8

 

 

 

(C)      (x)             worker's compensation insurance to the extent required by the laws of the state in which the Premises are located; and

           (y)             employer's liability insurance with limits not less than One Million and No/100 Dollars ($1,000,000.00) per accident/disease/employee.

 

(D)      business income/business interruption insurance and extra expense coverage with coverage that will reimburse Tenant for all direct and indirect loss of income and changes and costs incurred arising out of all named perils insured against by Tenant's policies of property insurance, including prevention of, or denial of use or access to, all or part of the Premises as a result of those named perils. The business income insurance coverage must provide coverage for no less than twelve (12) months of the loss of income, charges and costs contemplated under this Lease;

 

(E)      whenever Tenant shall be engaged in making any alterations, repairs or construction work of any kind, Tenant shall cause its contractors to obtain completed value builder's risk insurance and contractors shall obtain worker's compensation insurance as required by state and including Employer’s Liability insurance with limits not less than One Million and No/100 Dollars ($1,000,000.00) per accident/disease/employee;

 

(b) All policies of the insurance provided for in this Section 11 shall be issued in form reasonably acceptable to Landlord by insurance companies with a rating of not less than "A", in the most current available "Best's Insurance Reports", with a financial size reasonably consistent with the size and nature of the risk being insured and licensed to do business in the state in which the Premises are located. Tenant shall provide to Landlord a certificate (executed by a duly authorized agent of the appropriate insurance broker or agent) which shall evidence the existence of all insurance required by this Section 11, in the form required and with applicable endorsements as necessary attached thereto. Each and every such policy:

 

(i) shall name Landlord, any mortgagee and any other party reasonably designated by Landlord, as an additional insured and/or mortgagee with mortgagee endorsement with respect to casualty and business interruption or rental insurance policies. In addition, the coverage described in Section 11(a)(ii) shall also name Landlord and any mortgagee designated by Landlord as loss payee. This does not apply to worker’s compensation and employer’s liability;

 

(ii) shall be evidenced by a Certificate of Insurance or Evidence of Property Insurance and delivered to Landlord prior to delivery of possession of the Premises to Tenant and thereafter prior to the expiration of each such policy, and, as often as any such policy shall expire or terminate;

 

(iii) shall contain a provision that the insurer waives any right of subrogation against Landlord; and

 

(iv) shall be written as a primary policy which does not contribute to and is not in excess of coverage which Landlord may carry.

 

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(c) Any insurance provided for in Section 11(a) may be maintained by means of a policy or policies of blanket insurance, covering additional items or locations or insured; provided, however, that:

 

(i) Landlord and any other parties in interest from time to time designated by Landlord to Tenant shall be named as an additional insured and a loss payee thereunder as its interest may appear. This does not apply to worker’s compensation and employer’s liability;

 

(ii) the coverage afforded Landlord and any such other parties in interest will not be reduced or diminished by reason of the use of such blanket policy of insurance; and

 

(iii) the requirements set forth in this Section 11 are otherwise satisfied.

 

(d) In the event that Tenant shall fail to carry and maintain the insurance coverage set forth in this Section 11, Landlord may procure such policies of insurance and Tenant shall promptly reimburse Landlord therefore.

 

(e) Landlord may, at any time but no more often than annually (except that any such review may be required at any time in the case of an alteration to the Premises which has an aggregate cost greater than Fifty Thousand and No/100 Dollars ($50,000.00)), require a review of the insurance coverage and limits of liability to determine whether (i) the coverage and the limits are reasonable and adequate in the then existing circumstances and consistent with comparable facilities in the State of Oklahoma, and (ii) such coverage and limits satisfy the requirements of any mortgage with respect to the Premises. The review shall be undertaken on a date and at a time set forth in a Landlord's notice requesting a review and shall be conducted at the Premises. If Landlord's review determines that the coverage and limits do not meet the aforementioned standards, Landlord shall have the right to require Tenant to increase, add or adjust such coverage and limits to comply with such prevailing market standard or to comply with the requirements of any such mortgage.

 

Not less than five (5) days prior to the expiration or cancellation of any such policy or policies, evidence of the renewal of such policy or policies, or a new certificate, for the renewal period or new policy, as the case may be, shall be delivered to Landlord. All policies shall be written as primary policies, not contributing with and not for amounts only in excess of any coverage which Landlord may carry.

 

12.       Waiver of Subrogation. Each party hereby waives every right or cause of action for the events which occur or accrue during the term for any and all loss of, or damage to, any of its property (whether or not such loss or damage is caused by the fault or negligence of the other party or anyone for whom said other party may be responsible), which loss or damage is covered by valid and collectible fire, extended coverage, "all risk" or similar policies covering real property, personal property or business interruption insurance policies, to the extent that such loss or damage is recovered under said insurance policies. Said waivers are in addition to, and not in limitation or derogation of, any other waiver or release contained in this Lease with respect to any loss or damage to property of the parties hereto. Each party will give its insurance carrier written notice of the terms of such mutual waiver, and the insurance policies will be properly endorsed, if necessary, to prevent the invalidation of coverage by reason of said waiver.

 

13.       Use of Premises. The Premises may be used and occupied by Tenant for any lawful purpose. The Premises may be used only for such purposes as shall not conflict with the Lease covenants. Tenant shall not commit or allow upon the Premises any nuisance or other act in violation of public policy . If Tenant uses the Premises in any manner which increases the premium rate for any kind of insurance maintained by Tenant affecting the Premises, then, the amount of the increase in the premium shall be paid by Tenant.

 

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14.      Utilities. Tenant shall pay, directly to the appropriate utility company, all charges for all utilities used by Tenant in the Premises, including but not limited to water, gas, electrical and sewer services (the “ Utilities ”). Landlord shall cooperate with Tenant to cause all Utilities to be put in the name of Tenant, with all bills for all Utilities being sent directly to Tenant. Tenant shall also contract for and shall pay the cost of refuse and rubbish removal directly to the provider of such service. Any utility charge that is not separately metered shall be 70% the responsibility of the Tenant and 30% the responsibility of the Landlord. Further, Tenant shall pay, without reimbursement, 100% of the costs of the boiler facility located on the south side of the Corporate Campus, including all boilers and equipment located therein, and all piping emanating therefrom; provided, that if Landlord or a tenant of Landlord elects to install additional air conditioning in that part of the Corporate Campus occupied by it, then all incremental cost for such air conditioning will be borne by Landlord or such tenant , and Tenant will have no responsibility for such incremental air conditioning expense.

 

15.       Tenant to Comply with Matters of Record. During the Term, Tenant’s use of the Premises shall not violate any documents governing the use of the Premises which are filed of public record as of the Effective Date as described on Exhibit B hereto (the " Permitted Encumbrances "). Tenant shall indemnify, defend and hold Landlord harmless from any claim, loss or damage suffered by Landlord by reason of Tenant's violation of the use restrictions contained in the Permitted Encumbrances during the Term. This provision shall expressly exclude, and Tenant shall not be obligated for, the payment of any indebtedness owed by Landlord which is secured by the Premises.

 

16.       Enjoyment of Premises, Quiet Possession. Tenant shall have the peaceful and quiet enjoyment of the Premises for the Term unless Tenant has committed an Event of Default hereunder and such Event of Default is continuing.

 

17.       Assignment and Subletting, Transfer of Interest.

 

(a) Tenant shall not assign this Lease or sublet the Premises or any part thereof without the written consent of Landlord which consent may not be unreasonably withheld, conditioned or delayed by Landlord. Notwithstanding the above, Landlord's consent to a proposed assignment or sublease shall not be required so long as the proposed assignee or sublessee shall (i) have a tangible net worth equal to the net worth of the Tenant named herein at the time of the execution of this Lease, or (ii) deliver to Landlord a letter of credit in an amount equal to one year's Rent (attributable to the portion of the Lease being assigned or the portion of the Premises being sublet) at the time of such assignment or sublet, or (iii) be entering into the sublet or assignment as part of the sale by Tenant of substantially all of the assets of Tenant. Any request by Tenant of Landlord for Landlord's consent to a sublease or assignment, if required, must be accompanied by a true and complete copy of a draft of the sublease or assignment which Tenant proposes to execute with the proposed sublessee or assignee. Notwithstanding the foregoing, an assignment or sublet shall not relieve Tenant from its liability or obligations under this Lease and, notwithstanding such assignment or sublet, Tenant shall continue to remain fully liable for all liabilities and obligations under this Lease.

 

(b) The transfer of an interest in Tenant, including the transfer of a controlling interest in Tenant, shall not be deemed to be an assignment of this Lease subject to the provisions of 17(a) above and any such a transfer of an interest in Tenant shall not require the consent of Landlord.

 

18.       Removal of Personal Property. Tenant may remove all personal property and those items allowed to be removed as specified in Section 7(f) which Tenant has placed in the Premises, provided Tenant repairs all damages to the Premises caused by such removal. If Tenant shall fail to remove all such property from the Premises upon the termination of this Lease for any cause whatsoever, Landlord may, at its option, remove the same in any manner that Landlord shall choose and store it without liability to Tenant for loss thereof. In such

 

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event, Tenant shall pay to Landlord on demand any and all expenses incurred in the removal of any personal property which Tenant has placed in the Premise after the Effective Date (but not the cost of removal of personal property which was in the Premise prior to the Effective Date), including court costs, attorney's fees, and storage charges for the length of time the same shall be in Landlord's possession. Alternatively, Landlord may, at its option and to the extent permitted under law, without notice, sell the property or any part thereof at a private sale for such price as Landlord may obtain, and apply the proceeds of the sale to any amounts due under this Lease and the expenses incident to removal and sale of said property.

 

19.       Property and Improvements at Tenant's Risk . Except as otherwise provided herein, all personal property, betterments and improvements in the Premises, or related facilities, whether owned, leased or installed by Landlord, Tenant or any other person, are at Tenant's sole risk, and Landlord shall not be responsible or liable for any loss or damage to any property or person on the Premises occasioned by theft, misappropriation, or casualty, provided, however, Landlord shall be liable for the grossly negligent acts or willful misconduct of Landlord or Landlord's agents.

 

20.       Governmental Regulations. Except for the obligations of Landlord under this Lease, including, without limitation, Paragraph 8 (related to repairs and maintenance), Paragraph 23 (related to the destruction of the Premises) and Paragraph 22 (related to the condemnation of the Premises), from and after the Effective Date and throughout the Term of this Lease, Tenant shall, at Tenant's sole cost and expense, promptly comply, and cause the Premises to comply, with all laws and ordinances and notices, orders, rules, regulations and requirements of all federal, state and municipal governments and appropriate departments, commissions, boards and officers thereof, and notices, orders, rules and regulations of the National Board of Fire Underwriters, or any other body now or hereafter constituted exercising similar functions (collectively, " Governmental Requirements "), relating to the Premises, all trade fixtures, all alterations and the use or manner of use of the Premises. Without limiting the generality of the foregoing, Tenant shall keep in force at all times all licenses, consents and permits necessary for its use of the Premises. Tenant shall likewise observe and comply with the requirements of all policies of public liability, fire and other policies of insurance at any time in force with respect to the Premises.

 

21.       ADA Compliance.    Tenant, as the former owner of the Premises, represents and warrants that the Premises, as of the Effective Date, are in full compliance with the American with Disabilities Act of 1990 (together with all rules and regulations adopted thereunder, the " ADA ") and any similar law or the State of Oklahoma, in effect as of the Effective Date. Changes in the ADA after the Effective Date that necessitate changes in the Premises shall be the responsibility of Tenant after the Effective Date, at Tenant’s sole cost and expense, and Tenant shall cause the Premises to comply with such changes in the ADA. At its expense, Tenant will comply with all requirements of ADA with regard to its operations.

 

Tenant hereby indemnifies Landlord, its affiliates, agents, officers, employees and contractors, for all costs, liabilities and causes of action occurring or arising after the effective date as a result of Tenant's failure to comply with changes in the ADA which are passed after the Effective Date of the Lease which necessitate changes in the Premises after the Effective Date, and Tenant will defend landlord, its affiliates, agents, officers, employees and contractors, against all such costs, liabilities and causes of action.

 

Tenant hereby indemnifies Landlord, its affiliates, agents, officers, employees and contractors, for all costs, liabilities and causes of action occurring or arising as a result of Tenant's failure to insure that the improvements are in compliance with the ADA as of the Effective Date and Tenant will defend Landlord, its affiliates, agents, officers, employees and contractors, against all such costs, liabilities and causes of action.

 

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22.       Condemnation. If the whole of the Premises, or so much of the Premises as to prevent or substantially impair its use by Tenant during the Lease Term, should be permanently taken under the power of eminent domain or condemnation, or sold to prevent the exercise thereof, then this Lease shall cease as of the date of the taking of possession without further liability upon either Landlord or Tenant.

 

If all or any portion of the Premises is temporarily taken under the power of eminent domain or condemnation, then this Lease shall continue and Rent and other sums payable by Tenant hereunder shall not be abated to the extent that Tenant receives an award for rental paid by the condemning authority for the Premises during such temporary taking; provided, however, if the temporary taking or condemnation lasts more than ninety (90) days and the Premises or the access to the Premises and the parking available to the Premises, after the taking, would no longer substantially satisfy the requirements to operate Tenant’s business in the Premises as conducted before the temporary taking or condemnation, Tenant shall have the option to terminate this Lease upon fifteen (15) days written notice to Landlord, in which case this Lease shall cease at the expiry of such fifteen (15) days without further liability upon either Landlord or Tenant.

 

If only a portion of the Premises is permanently taken under the power of eminent domain or condemnation, or sold to prevent the exercise thereof, the rights of Tenant under this Lease and the leasehold estate of Tenant in and to the portion of the property so partially taken or sold shall cease and terminate as of the date of taking or sale, and a proportionate reduction in the Rent and other sums payable by Tenant hereunder shall be made based upon the reduced area and usefulness of the Premises; provided, however, that Tenant may terminate this Lease upon written notice to Landlord provided within fifty (50) days of the partial taking, condemnation or sale, if (i) more than twenty five percent (25%) of the net rentable area of the Premises shall be taken, condemned or sold or (ii) the Premises, after the taking, including (without limitation) access to the Premises and the parking available to the Premises, would no longer substantially satisfy the requirements to operate Tenant’s business in the Premises. If this Lease is not so terminated, Landlord shall promptly, but in no event later than one hundred thirty (130) days after the partial taking, condemnation or sale, restore the portion remaining to an integral unit resembling as much as possible the Premises prior to the taking, except that Landlord shall not be obligated to expend any sum greater than the proceeds actually received by Landlord attributable to such taking, condemnation or sale of a portion of the Premises and Landlord shall have no obligation to restore or repair the contents of the Premises belonging to, possessed or held by Tenant, or any of Tenant’s trade fixtures or other property or contents of the Premises. If the Landlord fails to so restore within one hundred thirty (130) days of the partial taking, condemnation or sale, Tenant may terminate this Lease upon thirty (30) days’ written notice to Landlord.

 

All sums awarded or agreed upon between Landlord and a condemning authority pursuant to this Article, whether as damages or as compensation, will be the sole property of Landlord, subject to deduction for the estate or interest of Tenant, which shall be promptly paid to Tenant, upon Landlord’s receipt thereof. Except as expressly set forth herein, the Tenant shall have no authority or right to negotiate for or be entitled to any sums awarded or agreed upon by reason of any eminent domain or condemnation action or sale to prevent the same and the Landlord is authorized to settle and agree upon any such proceeding and to execute any conveyance in connection therewith which will then constitute a taking by such authority; provided, however, nothing herein shall be deemed to give Landlord any interest in, or prevent Tenant from seeking any award against the condemning authority for the taking or condemnation of Tenant’s personal property, fixtures, or for relocation or moving expenses recoverable by Tenant from the condemning authority.

 

If this Lease should be terminated under any provision of this Article, except as otherwise expressly stated herein, rental shall be payable up to the date that possession is taken by the taking authority, and Landlord will refund to Tenant an equitable portion of any rental paid in advance but not yet earned by such date to the extent Tenant is not in monetary default of this Lease, and if Tenant is in monetary default, then Landlord shall refund any such portion of advance rental in excess of such monetary default.

 

For purposes of this Article, the date of a taking, condemnation or sale to prevent a taking or condemnation shall be the later of the date of transfer of title resulting from such taking, condemnation or sale or the date of transfer of possession resulting from such taking, condemnation or sale coupled with Tenant’s dispossession of the Premises.

 

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23.      Destruction or Damage .

 

(a)     If the Leased Premises are made substantially untenantable by fire or other casualty, Landlord may either elect to: (i) terminate this Lease as of the date of such fire or other casualty by delivery of written notice of termination to Tenant within ninety (90) calendar days after said date; or (ii) without termination of this Lease, proceed with reasonable diligence, to the extent of available insurance proceeds from Tenant’s insurance company, to repair, restore or rehabilitate the Leased Premises, other than alterations or leasehold improvements paid for by Tenant.

 

(b)     Further, if all or any part of the Leased Premises are rendered substantially untenantable by fire or other casualty and this Lease is not terminated by Landlord, Rent due hereunder shall not abate for all or said part of the Leased Premises which are untenantable unless and until f twelve (12) months has passed from said fire or other casualty without l the Leased Premises having been substantially repaired and restored. The rationale for the foregoing is that Tenant is required herein to have obtained business income/business interruption insurance with coverage for not less than twelve (12) months, and Tenant hereby agrees to utilize the funds provided by said insurance coverage to pay the NNN Base Rental and Adjusted Rent until the end of said twelve (12) month period of untenantability. After such 12 month period, r, if a portion of the Premises are still untenantable rent shall abate on a pro-rata basis depending on the percentage of the Premises that are still untenantable.

 

(c)     The Leased Premises shall be deemed substantially untenantable if (i) Landlord is required to expend for repairs more than thirty percent (30%) of the replacement value of the Leased Premises immediately prior to the casualty, or (ii) restoration is not possible in accordance with Landlord’s reasonable estimate, within twelve (12) months following the date the fire or other casualty occurred.

 

(d)     Consistent with the foregoing, if the Leased Premises are damaged by fire or other casualty, but are not made substantially untenantable, then rent is not abated, and Landlord shall proceed with reasonable diligence, to the extent of available insurance proceeds from Tenant’s insurance company, to repair and restore the Leased Premises, other than alterations or leasehold improvements paid for by Tenant, unless such damage occurs during the last twenty-four (24) months of the Lease Term, in which event Landlord shall have the right to terminate this Lease as of the date of such fire or other casualty by delivery of written notice of termination to Tenant within thirty (30) calendar days after said date.

 

(e)     Further, the Tenant may not terminate this Lease or repair the Leased Premises at Landlord’s expense as a result of a fire or other casualty, and no damages, compensation or claim shall be payable by Landlord for any inconvenience or annoyance to Tenant or injury to the business of Tenant resulting in any way from damage from fire or other casualty or the repair thereof. Subject to Landlord’s rights and options as provided in this Section, Landlord shall use reasonable efforts to make such repair or restoration promptly and in such manner as will not unreasonably interfere with Tenant’s use and occupancy of the Leased Premises, but Landlord shall not be required to do such repair or restoration work except during ordinary business hours.

 

24.       Inspection. After 24 hours’ prior written notice, Landlord shall have the right to enter the Premises during business hours to examine the Premises or to make such repairs, additions or alterations as may be required under the Lease or as may be deemed necessary for the safety, comfort or preservation of the Premises, or to exhibit the Premises to prospective purchasers, and, during the last six (6) months of the Term, to prospective tenants; provided, however that any such activities will not unreasonably interfere with Tenant's use of the Premises.

 

25.       Mortgage. This Lease is and shall remain subject and subordinate to all mortgages affecting the Premises and Tenant shall, within five (5) business days after written request from Landlord, execute and deliver to Landlord such documents evidencing the subordination of this Lease to such mortgages, so long as the holder of such mortgage shall provide non-disturbance language benefitting Tenant. In the event of a default under the terms of any mortgage prior to the expiration of the Term of this Lease, the mortgagee may acquire the leasehold interest of Landlord, and mortgagee shall not disturb the tenancy of Tenant hereunder for the balance of the term of this Lease, including any extensions and renewals thereof upon the same covenants and conditions as are contained herein, and Tenant agrees to make full and complete attornment to such mortgagee, its successors and assigns, for the balance of the term of this Lease, including any extensions and renewals thereof, upon the same covenants and conditions as are contained herein, so as to establish privity of estate between any mortgagee and Tenant with the same force and effect as though this Lease was originally made directly from such mortgagee to Tenant. Landlord represents that any mortgagee and the owner have covenanted that in the event either of them acquires the leasehold

 

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interest of Landlord, it will accept Tenant as its lessee for a period equal to the full un-elapsed portion of the term of this Lease, including any extensions and renewals thereof, and upon the same covenants and conditions as are contained herein, and any mortgagee or owner will thereafter become Landlord under this Lease.

 

26.       Signs. Tenant may not place signs anywhere on the Premises without the consent of Landlord.

 

27.       Notices. Any written notice required or allowed by this Lease to be given to either Landlord or Tenant shall be deemed given upon (i) delivery by hand, (ii) electronic transmission or (iii) receipt by certified or registered mail, postage prepaid, properly addressed to the parties as follows:

 

Tenant:                 Hilti, Inc.

5400 S. 122 nd E. Ave.

Tulsa, OK 74146

Attn: Eugene Hodel

Email Address: eugene.hodel@hilti.com

 

Landlord:             Educational Development Corporation

10302 E. 55 th Pl.

Tulsa, OK 74146

Attn: Randall White

Email Address: rwhite@edcpub.com

 

Any consent, approval, notice, request or communication permitted or required under this Lease must be in writing, and shall be given by such party, or by an agent or attorney employed by such party, by United States registered or certified mail, return receipt requested, or by receipted courier, or by hand delivery to the other party's notice addressor at the then effective notice address of the party if such party has given the other party at least fifteen (15) days advance written notice of a change in its effective notice address in accordance with this Article. Notice given by United States registered or certified mail shall be deemed to have been given and received when a registered or certified letter containing such notice, properly addressed, with postage prepaid, is deposited in the United States mail. Notice given by other permitted means (such as Federal Express or a similar overnight service) shall be deemed to have been given when delivered to and received at the effective notice address of the party to whom it is addressed, whether or not accepted, receipted for or acknowledged; however, any such notice delivered other than during the normal business operating hours of the recipient party (even if the recipient party's office is not open at the particular time) shall be deemed given and received on the next following business day. Brokers. Both Landlord and Tenant represent and warrant to each other that they have had no dealings with any real estate broker or agent in connection with the negotiations of this Lease that would give rise to a valid claim for commission. Both Landlord and Tenant know of no other real estate broker or agent who is or might be entitled to a commission in connection with this Lease.

 

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28.       Estoppel Certificates. Each party agrees to provide to the other within five (5) business days of a written request, a certificate in form and substance reasonably satisfactory to the other party stating (i) that this Lease is in full force and effect; (ii) the term of this Lease; (iii) the date through which rent has been paid; (iv) that there are no defaults existing under this Lease, or, if any default exists, specifying such default and the actions required to cure such default; and (v) such other matters as Landlord or Tenant may reasonably require.

 

29.       Default. Each of the following shall be an Event of Default by Tenant under the

Lease:

 

(a) Tenant shall fail to pay any installment of Rent when due and such failure shall continue for a period of five (5) days after written notice from Landlord to Tenant.

 

(b) Tenant shall fail to performance of any of its other promises, covenants or agreements herein contained (other than the payment of Rent) and shall not cure such failure within thirty (30) days (or such longer period of time) as may be reasonably required provided Tenant commences to cure such failure within thirty (30) days and diligently and continuously prosecutes such cure) after written notice thereof from Landlord to Tenant specifying the particulars of such failure or

 

(c) Tenant abandons the Premises;

 

(d) The filing of any petition in bankruptcy or insolvency or for reorganization under the Bankruptcy Code by or against Tenant, or the making of a voluntary assignment by Tenant for the benefit of its general creditors, or the filing by Tenant of any petition for an arrangement or composition under the Bankruptcy Act, or the appointment of a receiver or trustee after notice and hearing to take charge of Tenant’s business, or of any other petition or application seeking relief under any other federal or state laws now or hereafter providing for the relief of debtors, shall automatically constitute a default of this Lease by Tenant for which Landlord may, at any time or times thereafter, at its option exercise any of the remedies and options provided to Landlord in this Section 29 of this Lease for the default of this Lease by Tenant, provided however, that if such petition be filed by a third party against Tenant, who desires in good faith to defend against the same and Tenant is not in any way in default of any obligation hereunder at the time of the filing of such petition, and Tenant within sixty (60) calendar days thereafter procures a final adjudication that it is solvent and a judgment dismissing such petition, this Lease shall be fully reinstated as though such petition had never been filed. In the event of termination as provided for in this Section, Tenant shall pay forthwith to Landlord as actual and as liquidated damages the amounts calculated in accordance with subsections (d)(i) through (v) below. In the event the foregoing provisions pertaining to bankruptcy or insolvency of Tenant are, for any reason, now or hereinafter unenforceable by reason of any federal or state laws, Landlord shall be entitled to exercise such rights as are otherwise provided it under federal or state law with respect to bankruptcy or insolvency of debtors. In the event that Tenant shall file for protection under the Bankruptcy Code now or hereinafter in effect, or a trustee in bankruptcy shall be appointed for Tenant, Landlord and Tenant agree to the extent permitted by law, to request that the debtor-in-possession or trustee-in-bankruptcy, if one shall have been appointed, assume or reject this Lease within sixty (60) calendar days thereafter.

 

Upon the occurrence of an Event of Default, Landlord may, in addition to any or all other rights or remedies of Landlord provided by law, without further notice or demand of any kind to Tenant or any other person:

 

(a) Apply any Security Deposit remaining to cure the Event of Default in compliance with 6(d) of this Lease;

 

(b) Terminate this Lease by giving written notice to Tenant and to reenter the

Premises and take possession thereof and remove all persons therefrom, and Tenant shall have no further claim thereon or hereunder; or

 

(c) Terminate Tenant’s right of possession without declaring this Lease terminated to reenter the Premises and occupy the whole or any part thereof for and on account of Tenant and to collect any unpaid rentals and other charges, which have become payable, or which may thereafter become payable; or

 

(d) Terminate this Lease by giving written notice to Tenant even though Landlord may have previously terminated Tenant’s right of possession.

 

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If Landlord reenters the Premises by terminating Tenant’s right of possession under the provisions of subparagraph (c) above, Landlord shall not be deemed to have terminated this Lease, or the liability of Tenant to pay any rental or other charges thereafter accruing, or to have terminated Tenant’s liability for damages under any of the provisions hereof, by any such reentry or by any action, in unlawful detainer or otherwise, to obtain possession of the Premises, unless Landlord shall have notified Tenant in writing that it has so elected to terminate this Lease, and Tenant further covenants that the service by Landlord of any notice pursuant to the unlawful detainer statutes of the State of Oklahoma and the surrender of possession pursuant to such notice shall not (unless Landlord elects to the contrary at the time of or at any time subsequent to the serving of such notices and such election is evidenced by a written notice to Tenant) be deemed to be a termination of this Lease. In the event of any entry or taking possession of the Premises as aforesaid, Landlord shall have the right, but not the obligation, to remove therefrom all or any part of the personal property located therein and may place the same in storage at a public warehouse at the expense and risk of Tenant.

 

Should Landlord elect to terminate this Lease pursuant to the provisions of subparagraph (b) or (d) above, Landlord may recover from Tenant as damages, the following:

 

(i) An amount equal to the worth at the time of award of any unpaid rental which had been earned at the time of such termination; plus

 

(ii) An amount equal to the worth at the time of award of the amount by which the unpaid rental which would have been earned after termination until the time of award exceeds the amount of such loss Tenant proves could have been reasonably avoided; plus

 

(iii) An amount equal to the worth at the time of award of the amount by which the unpaid rental for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus

 

(iv) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, any costs or expenses incurred by Landlord in (a) retaking possession of the Premises, including reasonable attorneys’ fees therefor, (b) maintaining or preserving the Premises after such default, (c) preparing the Premises for reletting to a new tenant, (d) leasing commissions, or (e) any other costs necessary or appropriate to relet the Premises; plus

 

(v) At Landlord’s election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by laws of the State of Oklahoma.

 

As used in subparagraphs (i) and (ii) above, the “worth at the time of award” is computed by allowing interest at the lesser of the maximum lawful rate or eighteen percent. As used in subparagraph (iii) above, the “worth at the time of award” is computed by discounting such amount at the discount rate of the Federal Reserve Bank situated nearest to the Premises at the time of award plus one percent (1%).

 

For all purposes of this Section only, the term “Rental” shall be deemed to be the NNN Base Rental and the Additional Rental. All such sums, other than the NNN Base Rental, shall, for the purpose of calculating any amount due under the provisions of subparagraph (iii) above, be computed on the basis of the average monthly amount thereof accruing during the immediately preceding sixty (60) month period, except that if it becomes necessary to compute such Additional Rental before such a sixty (60) month period has occurred then such Additional Rental shall be computed on the basis of the average monthly amount hereof accruing during such shorter period.

 

Notwithstanding any other provisions of this Section, Landlord agrees that if the default complained of, other than for the payment of monies, is of such a nature that the same cannot be rectified or cured within the period requiring such rectification or curing as specified in the written notice relating thereto, then such default shall be deemed to be rectified or cured if Tenant within such period shall have commenced the rectification and curing thereof and shall continue thereafter with all due diligence as aforesaid.

 

The rights and remedies given to Landlord in this Section shall be in addition and supplemental to all other rights or remedies which Landlord may have under laws then in force.

 

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The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition herein contained for any subsequent breach. The subsequent acceptance of rental hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant or condition of this Lease or of any right of Landlord to a forfeiture of the Lease by reason of such breach, regardless of Landlord’s knowledge of such preceding breach at the time of acceptance of such Additional Rental. No term, covenant or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing signed by Landlord. Anything to the contrary notwithstanding contained in this Section, any written notice, other than as specifically set forth in this Section 31, required by any statute or law now or hereafter in force is hereby waived by Tenant to the fullest extent allowed under applicable law.

 

Landlord shall be in default of this Lease if Landlord fails to perform any obligation of Landlord contained in this Lease and such failure continues for thirty (30) days (or such shorter period of time if exigencies would compel a reasonable landlord to act in a sooner or longer period of time if reasonable given the nature of the required cure for such failure and if Landlord commences cure within such thirty (30) days and diligently prosecutes such cure to completion) after written notice from Tenant to Landlord specifying such failure. Upon the occurrence of a default by Landlord, Landlord shall be liable to Tenant for any and all damages sustained by Tenant as a result of Landlord’s breach.

 

30.       Rights and Remedies. All rights and remedies of Landlord herein shall be cumulative, and none shall be exclusive of any other, or of any rights and remedies allowed by law, and pursuit of any one of said rights or remedies does not preclude pursuit of any one or more of the other of said rights or remedies.

 

31.       Costs of Suit. If Tenant or Landlord shall bring an action for any relief against the other, declaratory or otherwise, arising out of this Lease, including any suit by Landlord for the recovery of rent or possession of the Premises, the prevailing party shall be entitled to recover all reasonable costs and expenses associated with such action, including reasonable attorneys' fees, from the non-prevailing party, with the court or other tribunal hearing such action to make such determinations.

 

32.       Severability. If any term of this Lease is declared to be illegal or unenforceable, the unaffected terms shall remain in full force and effect.

 

33.       Successors and Assigns. Except as otherwise provided in this Lease, all of the covenants, conditions and provisions of this Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, personal representatives, successors and assigns.

 

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34.       Parties.    The words " Landlord " and " Tenant " as used herein shall include the parties to the Lease, whether singular or plural, masculine or feminine, or corporate, partnership, limited liability company or other entity and their heirs, personal representatives, successors and assigns.

 

35.       Waivers. No covenant, term or condition hereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed, and any waiver of the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term or condition of this Lease. Acceptance by Landlord of any performance by Tenant after the time the same shall have become due shall not constitute a waiver by Landlord of the breach or default of any covenant, term or condition of this Lease unless otherwise expressly agreed to by Landlord in writing.

 

36.      Approval. This Lease is subject to the approval of the bank or other financial institution which will provide the financing for the Corporate Campus as that term is defined in Section 2.1 of the Purchase and Sale Agreement of even date herewith between Landlord and Tenant, including any refinancing thereof and Tenant and Landlord agree that this Lease shall be modified or altered to embody any reasonable terms required by said bank or other financial institution so long as such modification does not alter the financial obligations of Tenant.

 

37.       Controlling Law. This Lease is entered into in the State of Oklahoma and shall be enforced and construed in accordance with the laws thereof.

 

38.       Captions.    The captions of the paragraphs of this Lease and its Exhibits are for convenience only and are not a part of this Lease, and do not in any way limit or amplify the terms or provisions of this Lease, and shall not be considered in the construction or interpretation of any provision hereof.

 

39.       Relationship.    The parties agree that Landlord shall in no event be construed or held, by virtue of this Lease, to be an agent, partner, member or associate of Tenant in the conduct of any of Tenant's business, nor shall Landlord be liable for any debts incurred by Tenant in the conduct of Tenant's business.

 

40.       Entire Agreement.    This Lease, together with any later written modifications or amendments thereto, shall constitute the entire agreement between the parties with respect to the subject matter hereof and shall supersede any prior or contemporaneous agreements or understandings, whether written or oral, which the parties, their agents or representatives may have had relating to the subject matter hereof. No modification, alteration or waiver of any term, condition or covenant of this Lease shall be valid unless in writing, dated and signed by Landlord and Tenant.

 

41.       Corporate Authority.    If Tenant is a corporation, each individual executing this Lease on behalf of said corporation represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said corporation in accordance with a duly adopted resolution of the Board of Directors of said corporation or in accordance with the Bylaws of said corporation, and that this Lease is binding upon said corporation in accordance with its terms. If Tenant is a corporation, Tenant shall deliver to Landlord, within thirty (30) days after execution of this Lease, a certified copy of a resolution of the Board of Directors of said corporation authorizing or ratifying the execution of this Lease.

 

If Tenant is a limited liability company, general partnership, limited partnership, or limited liability partnership (collectively, a " partnership "), each individual executing this Lease on behalf of said company or partnership represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said company or partnership in accordance with a duly adopted resolution of the managers or partners of said company or partnership or in accordance with the operating agreement of said company or partnership agreement of said partnership, and that this Lease is binding upon said company or partnership in accordance with its terms. If Tenant is a limited liability company or partnership, Tenant shall deliver to Landlord, within thirty (30) days after execution of this Lease, a certified copy of a resolution of the managers or members of said company or partners of said partnership authorizing or ratifying the execution of this Lease.

 

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42.       Hazardous Waste. Tenant warrants, represents and covenants to Landlord that:

 

(a) Tenant's use of the Premises will at all times comply with and conform to all laws, statutes, ordinances, rules and regulations of any governmental, quasi-governmental or regulatory authority (" Laws ") which relate to the transportation, storage, placement, handling, treatment, discharge, generation, production or disposal (collectively " Treatment ") of any waste, waste products, radioactive waste, poly-chlorinated biphenyls, asbestos, hazardous materials of any kind, and any substance which is regulated by any law, statute, ordinance, rule or regulation (collectively " Waste "). Tenant further covenants that it will not engage in or permit any party to engage in any Treatment of any Waste on or which affects the Premises, unless said Treatment complies with and conforms to all Laws relating to such Waste.

 

(b) Immediately upon receipt of any Notice, as hereinafter defined, from any party, Tenant or Landlord (as the case may be) shall promptly deliver to the other a true, correct and complete copy of any written Notice or a true, correct, and complete report of any nonwritten Notice. Additionally, Tenant or Landlord (as the case may be) shall notify the other immediately after having knowledge of any Treatment of Waste, which does not comply with or conform to all Laws relating to such Waste or any Spill, as hereinafter defined, of Waste in or affecting the Premises. For purposes of this Section, " Notice " shall mean any note, notice, or report of any of the following:

 

(i) any suit, proceeding, investigation, order, consent order, injunction, writ, award, or action related to or affecting or indicating the Treatment of any Waste in or affecting the Premises;

 

(ii) any spill, contamination, discharge, leakage, release or escape of any Waste in or affecting the Premises, whether sudden or gradual, accidental or anticipated, or of any other nature (hereinafter " Spill ");

 

(iii) any dispute relating to Tenant's or any other party's Treatment of any Waste or any Spill in or affecting the Premises;

 

(iv) any claims by or against any insurer related to or arising out of any Waste or Spill in or affecting the Premises;

 

(v) any recommendations or requirements of any governmental or regulatory authority, insurer or board of underwriters relating to any Treatment of Waste or a Spill in or affecting the Premises;

 

(vi) any legal requirement or deficiency related to the Treatment of Waste or any Spill in or affecting the Premises; or

 

(vii) any tenant, licensee, concessionaire, manager, or other party or entity occupying or using the Premises or any part thereof which has engaged in or engages in the Treatment of any Waste in or affecting the Premises.

 

(c) In the event that (i) Tenant has caused, suffered or permitted, directly or indirectly, any Spill in or affecting the Premises, or (ii) any Spill of any Waste has occurred on the Premises during the term of this Lease (except that Tenant shall not be responsible for any such action below if such Spill or any Waste was caused in whole or in part by Landlord), then Tenant shall immediately take all of the following actions,:

 

(i) notify Landlord, as provided herein;

 

(ii) take all steps necessary or desirable, in Landlord's reasonable opinion, to clean up such Spill and any contamination related to the Spill, all in accordance with the requirements, rules and regulations of any state or federal environmental department or agency having jurisdiction over the Spill;

 

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(iii) fully restore the Building and the Land to its condition prior to the Spill;

 

(iv) allow Landlord or its agents and any state or federal environmental department or agency having jurisdiction thereof to monitor and inspect all cleanup and restoration related to such Spill; and

 

(v) at the written request of Landlord, post a bond or obtain a letter of credit for the benefit of Landlord (drawn upon a company or bank satisfactory to Landlord) or deposit an amount of money in an escrow account under Landlord's name upon which bond, letter of credit or escrow Tenant may draw, and which bond, letter of credit or escrow shall be in an amount sufficient to meet all of Tenant's obligations under this Section 42(c). Landlord shall have the unfettered right to draw against the bond, letter of credit or escrow in its discretion in the event that Tenant is unable or unwilling to meet its obligations under this paragraph or, if Tenant fails to post a bond or obtain a letter of credit or deposit such cash as is required herein, then Landlord, at Tenant's cost and expense, may, but shall have no obligation, do so for the benefit of Tenant and do those things which Tenant is required to do under this Section 42(c) (ii), (iii) and (iv).

 

(d) Tenant hereby agrees that it will indemnify, defend, save and hold harmless Landlord and Landlord's members, officers, agents, representatives, and employees (collectively " Indemnified Parties ") against and from, and to reimburse the Indemnified Parties with respect to, any and all damages, claims, liabilities, losses, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses, court costs, administrative costs, costs of appeals and all clean up, administrative, fines, penalties and enforcement costs of applicable governmental agencies) which may be incurred by or asserted against the Indemnified Parties by reason or arising out of: (i) the breach of any representation or undertaking of Tenant under this Section, or (ii) the Treatment of any Waste by Tenant or any tenant, licensee, concessionaire, manager, or other party occupying or using the Premises, in or affecting the Premises, or (iii) any Spill (but only to the extent of the terms of this Section 42), or (iv) the presence of any Waste upon the Premises (but only to the extent of the terms of this Section 42), whether or not caused by Tenant.

 

(e) Tenant represents and warrants to Landlord that Tenant has provided to Landlord true, complete and correct copies of all Environmental Site Assessment reports relating to the Premises in Tenant’s possession, and that Tenant has no knowledge of any Waste or other hazardous or toxic materials in, on, under or otherwise affecting the Premises.

 

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43.       Limitation of Landlord's Liability. Tenant agrees that it shall look solely to (i) the net rents, issues, profits and other income received from the operation of the Premises, and (ii) the estate and property of Landlord in the Premises for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord for any default or breach by Landlord of any of its obligations under this Lease, subject, however, to the prior rights of the holder of any mortgage or deed of trust encumbering the Premises. No other assets of Landlord shall be subject to levy, execution or other judicial process for the satisfaction of Tenant's claim. This provision shall not be deemed, construed or interpreted to be or constitute an agreement, express or implied between Landlord and Tenant that Landlord's interest in the Premises shall be subject to impressment of an equitable lien or otherwise.

 

44.       Transfer of Landlord's Interest. In the event of the sale, assignment or transfer by

Landlord of its interest in the Premises or in this Lease (other than a collateral assignment to secure a debt of Landlord) to a successor in interest who expressly assumes the obligations of Landlord under this Lease, Landlord shall be released and discharged from all of its covenants and obligations under this Lease, except obligations which have accrued prior to any sale, assignment or transfer; and Tenant agrees to look solely to Landlord's successor in interest for performance of such obligations. Any security given by Tenant to Landlord to secure performance by Tenant of its obligations under this Lease may be assigned by Landlord to its successor in interest; and, upon acknowledgment by the successor of receipt of that security and its express assumption of the obligation to account to Tenant for that security in accordance with the terms of this Lease, Landlord shall be discharged of any further obligation relating thereto. Landlord's assignment of the Lease or of its interest in the Premises shall not affect Tenant's obligations under this Lease. Tenant shall attorn and look to Landlord's assignee, as landlord, provided Tenant has first received written notice of the assignment of Landlord's interest. Landlord shall have the right to freely sell, assign or otherwise transfer its interest in the Premises and/or this Lease.

 

45.       Brokers . Tenant and Landlord each mutually represent and warrant to the other that it has not dealt with, and is not obligated to pay, any fees or commissions to any broker in connection with this lease transaction other than (i) CBRE, Inc. has been retained by and will be paid by Tenant and (ii) Newmark Grubb Levy Strange Beffort has been retained by and will be paid by Landlord.

 

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46.      Parking . Tenant shall have the right to use the land designated for Tenant parking on Exhibit A, the portion of the Leased Premises (the “Parking Lot”) for loading and parking. In this regard, Tenant, by executing this Lease hereby accepts the Parking Lot as being adequate to serve the Leased Premises and acknowledges that the same is in compliance with all applicable Tulsa Zoning Code provisions involving parking and loading. Tenant hereby accepts the parking lot in an as-is condition and shall be responsible for maintenance, repair, resurfacing, restriping, or whatever is necessary to maintain said parking lot in a safe, neat, and sightly condition and in compliance with all handicapped parking requirements or ADA requirements. Further, Tenant shall cooperate with Landlord in any such efforts in this regard. In order to protect persons and property from injury or damage due to fire or other casualty and to provide suitable parking for visitors and the handicapped, Tenant agrees to restrict the parking of its motor vehicles and the motor vehicles of all of its employees, agents, contractors, licensees, customers, guests and invitees to those striped, designated parking areas provided within the Parking Lot as the same may be configured from time to time so that all roadways, driveways, and aisles shall remain open and unobstructed at all times for use as fire lanes and those parking spaces reserved for visitors and the handicapped will be available to those for whom they are intended. Should a motor vehicle be parked by Tenant or by any of its employees, agents, contractors, licensees, customers, guests and invitees other than in such designated parking areas, Tenant covenants and agrees that Landlord may remove or cause the removal of such motor vehicle from the Parking Lot at the cost of the owner thereof, and Landlord shall not be liable to such owner or any other person for any loss or damage which may result therefrom. The parking spaces provided for herein are provided solely for the accommodation of Tenant and Landlord assumes no responsibility or liability of any kind whatsoever (except its 30% share of maintenance as a Common Area Maintenance change) from whatever cause with respect to the automobile parking areas, including adjoining streets, sidewalks, driveways, property and passageways, or the use thereof by Tenant, its employees, agents, contractors, licensees, customers, guests and invitees.

 

47.       Time of Essence. Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor.

 

48.       Submission of Lease. This Lease is not effective until it is signed by both parties and a signed counterpart is delivered to Tenant.

 

49.       Patriot Act Representation. Landlord and Tenant each represent to the other that:

(1) its property interests are not blocked by executive Order No. 13224, 66 Fed. Reg. 49079; (2) it is not a person listed on the Specially Designated Nationals and Blocked Persons list of the Office of Foreign Assets Control of the United States Department of the Treasury, and (3) it is not acting for or on behalf of any person on that list.

 

50.       Waiver of Landlord’s Lien. Landlord herby waives and disclaims all statutory, contractual or other landlord’s lien rights in Tenant’s furniture, fixtures, trade fixtures, equipment, merchandise and other property now or hereinafter placed at the Premises.

 

51.      Landlord’s Rights in Tenant’s Property.

 

a)     [Intentionally deleted].

 

b)      Landlord’s Rights Upon Tenant’s Abandonment of Property . Upon the expiration of this Lease or if the Leased Premises should be vacated at any time, or abandoned by the Tenant, or this Lease should terminate for any cause, and at the time of such expiration, vacation, abandonment or termination the Tenant or Tenant’s agents, subtenants or any other person should leave any property of any kind or character on or in the Leased Premises, the parties’ rights with respect to any abandoned personal property shall be solely governed by 41 O.S. §52 (1988).

 

52.       Tenants Right to Encumber Tenant’s Personal Property. Tenant shall have the right from time to time to grant and assign a mortgage or other security interest in all of the Tenant’s personal property, including trade fixtures, located on or within the Premises to its lenders in connection with Tenant’s financing arrangements, and any lien of Landlord against Tenant’s personal property or trade fixtures (whether by Statue or otherwise) shall be subject and subordinate to such security interest.

 

 

[Remainder of Page Intentionally Left Blank]

 

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TENANT :

 

Hilti, Inc.,

an Oklahoma Corporation

 

 

By:      __________________________

Name:  __________________________

Title:   __________________________     

 

 

LANDLORD :

 

Educational Development Corporation,

an Oklahoma corporation

 

 

By:      __________________________

Name: _________________________

Title: __________________________

 

 

 

 

 

 

 

 

 

EXHIBIT A

 

Legal Description of the Building/Premises

 

Subdivision: METRO PARK RESUB L1 B3

Legal: LTS 1 & 2 BLK 1 & ALL VAC 53RD ST & VAC 120TH E AVE & 54TH ST & LTS 1 THRU 4 & PRT VAC 55TH ST & VAC 119TH ST ADJ ON W & S THEREOF BLK 2

Section: 32  Township: 19  Range: 14

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Addendum No. 1 Lease Agreement

 

This is Addendum No. 1 to that certain Lease Agreement (the “Lease”) dated December 1, 2015 between Educational Development Corporation (“Landlord”) and HILTI, INC. (“Tenant”) , related to property located at 5400 S. 122 nd East Avenue, Tulsa, Oklahoma, as more particularly described in the Lease.

 

Capitalized terms used in this Addendum without definition have the meanings ascribed to them in the Lease.

 

The Parties agree to amend the Lease as follows:

 

 

1.

Regarding the property and casualty insurance described in Section 11 (a)(ii) (A) and (B), the parties have agreed that Landlord will carrier the required insurance on the entire Corporate Campus that includes the Premises, and Tenant will be responsible to reimburse Landlord 70% of the premiums for such coverage.

 

2.

Section 1 of the Lease is amended as follows: In addition to the parking spaces shown on Exhibit A-1, the parties have agreed that:

 

a.

The facilities maintenance employees of Tenant will be allowed to park their personal cars near the Power House so long as Tenant is responsible for maintaining the Power House.

 

b.

Tenant will be allowed to park its security vehicles near the existing security office so long as Tenant is responsible for security of the entire Corporate Campus

 

Executed effective the 1 st day of December, 2015

LANDLORD;

Educational Development Corporation

a Delaware Corporation

By:      __________________________

Name: _________________________

Title: __________________________

TENANT :

 

Hilti, Inc.,

an Oklahoma Corporation

 

 

By:      __________________________

Name:  __________________________

Title:   __________________________     

 

 

 
 

 

 

 

Exhibit 10.10

 

FIRST AMENDMENT LOAN AGREEMENT

 

THIS FIRST AMENDMENT TO LOAN AGREEMENT (this “ Amendment ”) is made and entered into as of March 10, 2016 (the “ Effective Date ”), by and between EDUCATIONAL DEVELOPMENT CORPORATION, a Delaware corporation (“ Borrower ”), and MIDFIRST BANK, a federally charted savings association (“ Lender ).

 

BACKGROUND R ECITALS

 

A.     Borrower and Lender are parties to that certain Loan Agreement dated as of December 1, 2015 (the “ Loan Agreement ”). Unless the context otherwise requires, capitalized terms used in this Amendment (including the Guarantor Acknowledgement and Ratification attached hereto) and not otherwise defined herein have the respective meanings assigned to them in the Loan Agreement.

 

B.     Borrower has requested that Lender increase the Maximum Revolving Principal Amount from $4,000,000 to $6,000,000, and Lender has agreed to such request, but only upon the terms and conditions set forth in this Amendment.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

 

1.

INCREASE OF REVOLVING LOAN .

 

1.1      Maximum Revolving Principal Amount . Subject to the terms and conditions set forth in this Amendment, Lender hereby agrees to increase the Maximum Revolving Principal Amount from $4,000,000 to $6,000,000. Accordingly, the definition of Maximum Revolving Principal Amount appearing in Exhibit A of the Loan Agreement is hereby amended in its entirety to read as follows:

 

Maximum Revolving Principal Amoun t means $6,000,000.00, or if the Termination Date has occurred (and has not been extended by Lender in writing in its sole discretion), $0.

 

1.2      Replacement Revolving Note . Borrower shall make, execute and deliver a replacement Promissory Note (Revolving Loan) in the form of Exhibit A attached hereto (the “ Replacement Revolving Note ”) payable to Lender in the principal amount of $6,000,000. From and after the Effective Date, all references in the Loan Agreement or any other Loan Documents to the Promissory Note evidencing the Revolving Loan or the Revolving Note shall be deemed references to the Replacement Revolving Note, together with any and all renewals, extensions or replacements thereof, amendments or modifications thereto or substitutions therefor.

 

2.

MODIFICATIONS TO LOAN AGREEMENT .

 

2.1      Borrowing Base . The definition of Borrowing Base appearing in Exhibit A of the Loan Agreement is hereby amended in its entirety to read as follows:

 

Borrowing Base ” means, as of any calculation date, the sum of (i) 80% of Eligible Accounts and (ii) 25% of Eligible Inventory; provided, however, Eligible Inventory shall not be more than 75% of the Borrowing Base.

 

2.2      Borrowing Base Certificate Due Date . The definition of Borrowing Base Certificate Due Date appearing in Exhibit A of the Loan Agreement is hereby amended in its entirety to read as follows:

 

Borrowing Base Certificate Due Date ” means the 30th calendar day following the end of each calendar month. If the Borrowing Base Certificate Due Date is on a day which is not a Business Day, then the Borrowing Base Certificate Due Date will be the next Business Day.

 

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2.3      Replacement Borrowing Base Certificate . The form of Borrowing Base Certificate set forth in Exhibit D of Loan Agreement is hereby replaced with Exhibit D-1 attached to this Amendment.

 

3.

CONDITIONS TO EFFECTIVENESS . This Amendment will be effective as of the Effective Date, but subject to satisfaction of each of the following conditions precedent:

 

3.1      Execution of Amendment Documents . The following documents (collectively, the “ Amendment Documents ”) shall have been executed by the applicable parties and delivered to Lender, each in form and substance satisfactory to Lender:

 

 

(a)

this Amendment (including the Guarantor Acknowledgement and Ratification attached hereto);

 

 

(b)

the Replacement Revolving Note; and

 

 

(c)

an amendment to the Security Instrument (mortgage) covering the Property to update the description of the indebtedness secured thereby.

 

3.2      Flood Hazard Determination . Lender shall have received evidence satisfactory to it that the Property is not located in an area designated by the Secretary of Housing and Urban Development as an area having special flood or mudslide hazards, and that flood hazard insurance is not required for any credit to be extended hereunder pursuant to any Applicable Law.

 

3.3      Legal Matters . All legal matters incident to this Amendment shall be satisfactory to Lender and its counsel.

 

4.

REPRESENTATIONS AND WARRANTIES .

 

4.1      Reaffirmation . Borrower confirms that all representations and warranties made by it in the Loan Agreement and the other Loan Documents are, and as of the Effective Date will be, true and correct in all material respects, and all of such representations and warranties are hereby remade and restated as of the Effective Date and shall survive the execution and delivery of this Amendment

 

4.2      Additional Representations and Warranties .

 

4.2.1      Power; Transactional Authority; Enforceability . Each Borrower Party has the requisite power and authority to execute, deliver and carry out the terms and provisions of the Amendment Documents to which it is a party, and has taken all necessary actions to authorize its execution, delivery and performance of the Amendment Documents. Each Borrower Party has duly executed and delivered the Amendment Documents. The Amendment Documents each Borrower Party executes or under which such Borrower Party is obligated constitute such Borrower Party's legal, valid and binding obligations, enforceable in accordance with the terms of the Loan Documents, as amended by the Amendment Documents, subject to (i) the effect of any Applicable Bankruptcy Law, or (ii) general principles of equity.

 

4.2.2      No Violation; No Consent . Each Borrower Party's execution, delivery and performance of the Amendment Documents, and compliance with the terms and provisions of the Loan Documents, as amended by the Amendment Documents, will not (i) contravene any Applicable Law, (ii) conflict or be inconsistent with or result in any breach of any term, covenant, condition or provision of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose} any lien upon any of the Property or such Borrower Party's other assets pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which such Borrower Party is a party or by which such Borrower Party or any of the Property or such Borrower Party's other assets is bound or may be subject, or (iii) violate any term of any Borrower Party's certificate of incorporation or other documents and agreements governing such Borrower Party's existence, management or operation. No Borrower Party is required to obtain the consent of any other party, including any Governmental Authority, in connection with the execution, delivery,

 

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performance, validity or enforceability of the Loan Documents, as amended by the Amendment Documents.

 

4.2.3      Financial Matters . Each Borrower Party financial statement previously delivered to Lender was prepared in accordance with GAAP and completely, correctly and fairly present the financial condition and the results of operations of each Borrower Party on the date and for the period covered by the financial statements. All other reports, statements and other data that any Borrower Party furnished to Lender in connection with the Loan are true and correct in all material respects and do not omit any fact or circumstance necessary to ensure that the statements are not misleading. Each Borrower Party (i) is solvent, (ii) is not bankrupt, and (iii) has no outstanding liens, suits, garnishments, bankruptcies or court actions which may render such Borrower Party insolvent or bankrupt. Since the date of the last financial statements each Borrower Party delivered to Lender, no event, act, condition or liability has occurred or exists, which has had, or may reasonably be expected to have, a material adverse effect upon (A) such Borrower Party's business, condition (financial or otherwise) or operations, or (B) such Borrower Party's ability to perform or satisfy, or Lender's ability to enforce, any of the Indebtedness.

 

4.2.4      Litigation . There are no suits or proceedings (including condemnation) pending or (to Borrower's knowledge, after reasonable inquiry) threatened against or affecting any Borrower Party or the Property or involving the validity, enforceability or priority of any of the Loan Documents. Borrower has not received notice from any Governmental Authority alleging that any Borrower Party or the Property is violating any Applicable Law.

 

4.2.5       No Default . No Event of Default currently exists or would exist after giving effect to the transactions contemplated by this Amendment.

 

5.

MISCELLANEOUS .

 

5.1      Effect of Amendment. The terms of this Amendment shall be incorporated into and form a part of the Loan Agreement Except as expressly amended, modified and supplemented by this Amendment, the Loan Agreement shall continue in full force and effect in accordance with its original stated terms, all of which are hereby reaffirmed in every respect as of the Effective Date. In the event of any irreconcilable inconsistency between the terms of this Amendment and the terms of the Loan Agreement, the terms of this Amendment shall control and govern, and the agreements shall be interpreted so as to carry out and give full effect to the intent of this Amendment. All references to the Loan Agreement appearing in any of the Loan Documents shall hereafter be deemed references to the Loan Agreement as amended, modified and supplemented by this Amendment.

 

5.2      No Course of Dealing . This Amendment shall not establish a course of dealing or be construed or relied upon as evidence of any willingness on Lender's part to grant any future consent or amendment, should any be requested.

 

5.3      Release . Borrower hereby forever releases Lender from any and all liens, claims, interests and causes of action of any kind or nature (each, a “ Claim ”) that it now has or may hereafter have against Lender, and hereby agrees to indemnify and hold harmless Lender for all Claims that any Person may bring against Lender that arise under or in connection with the Loan Agreement based on facts existing on or before the Effective Date.

 

5.4      Ratification and Affirmation . Borrower hereby acknowledges the terms of this Amendment and ratifies and affirms its obligations under, and acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect.

 

5.5      Headings . The headings of the sections and subsections of this Amendment are for convenience of reference only and will not affect the scope or meaning of the sections of this Amendment

 

3

 

 

5.6      Applicable Law . The Amendment Documents and the rights and obligations of Borrower and Lender are in all respects governed by, and construed and enforced in accordance with the Governing Law (without giving effect to its principles of conflicts of law), except for those terms of the Security Instruments pertaining to the creation, perfections, validity, priority or foreclosure of the liens or security interests on the Property located within the State, which terms will be governed by, and construed and enforced in accordance with the laws of the State (without giving effect to its principles of conflicts of law).

 

5.7      Counterparts . This Amendment may be executed in any number of counterparts with the same effect as if all signers executed the same instrument. All counterparts of this Amendment must be construed together and will constitute one instrument.

 

5.8     Reimbursement of Expenses . Borrower agrees to pay or reimburse Lender for all reasonable out-of-pocket expenses, including Attorneys’ Fees, incurred by Lender in connection with the negotiation, preparation, execution and delivery of this Amendment and the other Amendment Documents and the consummation of the transactions contemplated hereby.

 

[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

 

 

 

4

 

 

 

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed effective as of the Effective Date.

 

 

Borrower:

EDUCATIONAL DEVELOPMENT CORPORATION

a Delaware corporation

 

 

 

 

 

 

 

 

 

 

By:

/s/ Randall W. White

 

 

Name:

Randall W. White

 

 

Title:

Chairman, President and CEO

 

 

 

 

 

 

 

 

BORROWER'S SIGNATURE PAGE

TO

FIRST AMENDMENT TO LOAN AGREEMENT


 

 

 

 

Lender:

MIDFIRST BANK, a federally chartered savings association

 

 

 

 

 

 

 

 

 

 

By:

/s/ Marc Short

 

 

Name:

Marc Short

 

 

Title:

Senior Vice President 

 

 

 

 

 

 

 

 

LENDER'S SIGNATURE PAGE

TO

FIRST AMENDMENT TO LOAN AGREEMENT

 

 

 

 

Exhibit 10.11

 

 

SECOND AMENDMENT LOAN AGREEMENT

 

THIS SECOND AMENDMENT TO LOAN AGREEMENT (this Amendment ”) is made and entered into as of June 15, 2016 (the “ Effective Date ”), by and between EDUCATIONAL DEVELOPMENT CORPORATION, a Delaware corporation (“ Borrower ”), and MIDFIRST BANK, a federally charted savings association (“ Lender ”).

 

BACKGROUND RECITALS

 

A.     Borrower and Lender are parties to that certain Loan Agreement dated as of December 1, 2015, as amended by that certain First Amendment to Loan Agreement dated as of March 10, 2016 (as amended, the “ Loan Agreement ”). Unless the context otherwise requires, capitalized terms used in this Amendment and not otherwise defined herein have the respective meanings assigned to them in the Loan Agreement.

 

B.     Borrower has requested that Lender (i) increase the Maximum Revolving Principal Amount from $6,000,000 to $7,000,000 and (ii) extend the Termination Date until June 15, 2017, and Lender has agreed to such requests, but only upon the terms and conditions set forth in this Amendment.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

 

1.

INCREASE AND EXTENSION OF REVOLVING LOAN .

 

1.1.      Maximum Revolving Principal Amount . Subject to the terms and conditions set forth in this Amendment, Lender hereby agrees to increase the Maximum Revolving Principal Amount from $6,000,000 to $7,000,000. Accordingly, the definition of Maximum Revolving Principal Amount appearing in Exhibit A of the Loan Agreement is hereby amended in its entirety to read as follows:

 

Maximum Revolving Principal Amount ” means $7,000,000.00, or if the Termination Date has occurred (and has not been extended by Lender in writing in its sole discretion), $0.

 

1.2.      Extension of Termination Date . The Termination Date is hereby extended from December 1, 2016, until June 15, 2017. Accordingly, the definition of Termination Date appearing in Exhibit A of the Loan Agreement is hereby amended in its entirety to read as follows:

 

Termination Date means June 15, 2017, or as may be extended by Lender in writing from time to time in Lender's sole discretion.

 

1.3.      Replacement Revolving Note . Borrower shall make, execute and deliver a replacement Promissory Note (Revolving Loan) in the form of Exhibit A attached hereto (the “ Replacement Revolving Note ) payable to Lender in the principal amount of $7,000,000. From and after the Effective Date, all references in the Loan Agreement or any other Loan Documents to the Promissory Note evidencing the Revolving Loan or the Revolving Note shall be deemed references to the Replacement Revolving Note, together with any and all renewals, extensions or replacements thereof, amendments or modifications thereto or substitutions therefor.

 

2.

PRICING AND FEES .

 

2.1.      Definitions in Loan Agreement . Effective as of May 31, 2016, the following definitions (a) to the extent already defined in Exhibit A of the Loan Agreement, are hereby amended in their entirety to read as follows, (b) to the extent not already defined in Exhibit A , are hereby added to Exhibit A of the Loan Agreement, to be inserted in alphabetical order, to read as follows:

 

EBITDA ” means Borrower's net income, plus interest expense, plus depreciation and amortization expense, plus income tax expense.

 

 

 

 

Funded Debt means, with respect to any Person, without duplication, (i) all obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, or upon which interest payments are customarily made, (iii) all purchase money debt (including debt in respect of conditional sale or title retention arrangements and obligations in respect of the deferred purchase price of property or services) of such Person, including the principal portion of all obligations of such Person under capital leases, (iv) all Funded Debt of another Person secured by a lien on any property of such Person, whether or not such Funded Debt has been assumed, and (v) the Funded Debt or any partnership or joint venture in which such Person is a general partner or joint venture, but only to the extent to which there is recourse to such Person for the payment of such Funded Debt.

 

Funded Debt to EBITDA Ratio means, as of any date of determination, the ratio that Lender reasonably determines of Borrower's Funded Debt to Borrower's EBITDA on a trailing 12-month basis.

 

Inventory Reliance Percentage means, for any fiscal quarter, the average of the three months in such fiscal quarter, with each month being calculated as 1 minus ((i) the average of Eligible Accounts in the Borrowing Base for such month divided by (ii) the average Total Revolving Outstandings for such month).

 

LIBO Rate means the lesser of (i) the Maximum Rate, and (ii) the rate per annum equal to the sum of (a) the quotient of the LIBOR Index for Interest Period in question divided by (1 minus the Reserve Requirement), and (b) the LIBOR Margin.

 

LIBOR Margin means, for any day, a percentage per annum (expressed as basis points) as set forth below, based upon the Funded Debt to EBITDA Ratio for the most recent fiscal quarter of Borrower:

 

Pricing Tier

Funded Debt to EBITDA Ratio

LIBOR Margin ( b p s)

I

>4.00

325

II

< 4.00

275

 

 

Any increase or decrease in the LIBOR Margin resulting from a change in the Funded Debt to EBITDA Ratio for the most recent fiscal quarter of Borrower shall become effective not later than 30 days following the date a Compliance Certificate is delivered and confirmed by Lender; provided, however, that if Borrower fails to deliver a Compliance Certificate on or before the applicable Compliance Certificate Due Date, then Pricing Tier I shall apply as of the first Business Day after such Compliance Certificate Due Date and shall continue to apply until not later than 30 days following the date a Compliance Certificate is delivered and confirmed by Lender, whereupon the LIBOR Margin shall be adjusted based upon the Funded Debt to EBITDA Ratio contained in such Compliance Certificate. The initial LIBOR Margin shall be determined based upon Pricing Tier I until adjusted otherwise.

 

2.2.      Inventory Reliance Fee . A new Section 2.5 is hereby added to the Loan Agreement to read as follows:

 

2.5      Inventory Reliance Fee . Borrower shall pay to Lender an inventory reliance fee on a quarterly basis, payable in arrears, beginning with the fiscal quarter ending August 31, 2016, equal to the average daily Total Revolving Outstandings for such fiscal quarter multiplied by IO basis points (.10%); provided, however, such fee shall not be payable if the Inventory Reliance Percentage for such fiscal quarter is less than or equal to 70%.

 

 

 

 

 

3.

OTHER MODIFICATIONS TO LOAN AGREEMENT .

 

3.1.      Amended Definitions .  The following definitions appearing in Exhibit A of the Loan Agreement are hereby amended in their entirety to read as follows:

 

Borrowing Base means, as of any calculation date, the sum of (i) 80% of Eligible Accounts and (ii) 25% of Eligible Inventory; provided, however, Eligible Inventory shall not be more than 80% of the Borrowing Base.

 

Borrowing Base Certificate Due Date means the 20th calendar day following the end of each calendar month. If the Borrowing Base Certificate Due Date is on a day which is not a Business Day, then the Borrowing Base Certificate Due Date will be the next Business Day.

 

DTW Test Default means the Debt to Worth Ratio is greater than: (i) as of the last day of the fiscal quarters ending August 31, 2016, and November 30, 2016, 3.50:1.00, (ii) as of the last day of the fiscal quarters ending February 28, 2017, May 31, 2017, August 31, 2017, and November 30, 2017, 3.25:1.00, and (iii) as of the last day of each fiscal quarter thereafter, 3.00:1.00.

 

3.2.      Field Audit . A new subsection (x) is hereby added to Section 4.1 of the Loan Agreement to read as follows:

 

(x)     Borrower will permit Lender, through its authorized agents and representatives (who need not be employees of Lender), to conduct periodic field audits of Borrower and to review its operations, books and records, credit policies, charge-off policies, collection procedures, methodology for eligibility calculations, and other matters relating to the value and maintenance of the Eligible Accounts and Eligible Inventory and Borrower's financial reporting. Except during any Event of Default Period, field audits will be conducted no more than once per calendar year, beginning August 31, 2016. Borrower will pay all costs and expenses incurred by Lender in connection with each field audit.

 

3.3.      Eligible Accounts . A new subsection (xviii) is hereby added to the definition of Eligible Accounts appearing in Exhibit A of the Loan Agreement to read as follows:

 

(xiv) Any Account which is due and owing from an account debtor which has an outstanding balance under accounts which have been billed and invoiced, if 10% or more of such balance has been outstanding more than 90 days beyond the original invoice date.

 

3.4.     Replacement Compliance Certificate . The form of Compliance Certificate set forth in Exhibit C of Loan Agreement is hereby replaced with Exhibit C-1 attached to this Amendment.

 

3.5.      Replacement Borrowing Base Certificate . The form of Borrowing Base Certificate set forth in Exhibit D of Loan Agreement is hereby replaced with Exhibit D-1 attached to this Amendment.

 

4.

CONDITIONS TO EFFECTIVENESS . This Amendment will be effective as of the Effective Date, but subject to satisfaction of each of the following conditions precedent:

 

4.1.      Execution of Amendment Documents . The following documents (collectively, the “ Amendment Documents ”) shall have been executed by the applicable parties and delivered to Lender, each in form and substance satisfactory to Lender:

 

(a)     this Amendment;

 

(b)     the Replacement Revolving Note; and

 

(c)     an amendment to the Security Instrument (mortgage) covering the Property to update the description of the indebtedness secured thereby.

 

 

 

 

4.2.      Flood Hazard Determination . Lender shall have received evidence satisfactory to it that the Property is not located in an area designated by the Secretary of Housing and Urban Development as an area having special flood or mudslide hazards, and that flood hazard insurance is not required for any credit to be extended hereunder pursuant to any Applicable Law.

 

4.3.      Legal Matters . All legal matters incident to this Amendment shall be satisfactory to Lender and its counsel.

 

5.

REPRESENTATIONS AND WARRANTIES .

 

5.1.      Reaffirmation . Borrower confirms that all representations and warranties made by it in the Loan Agreement and the other Loan Documents are, and as of the Effective Date will be, true and correct in all material respects, and all of such representations and warranties are hereby remade and restated as of the Effective Date and shall survive the execution and delivery of this Amendment.

 

5.2        Additional Representations and Warranties .

 

5.2.1.      Power; Transactional Authority; Enforceability . Each Borrower Party has the requisite power and authority to execute, deliver and carry out the terms and provisions of the Amendment Documents to which it is a party, and has taken all necessary actions to authorize its execution, delivery and performance of the Amendment Documents. Each Borrower Party has duly executed and delivered the Amendment Documents. The Amendment Documents each Borrower Party executes or under which such Borrower Party is obligated constitute such Borrower Party's legal, valid and binding obligations, enforceable in accordance with the terms of the Loan Documents, as amended by the Amendment Documents, subject to (i) the effect of any Applicable Bankruptcy Law, or (ii) general principles of equity.

 

5.2.2.      No Violation; No Consent . Each Borrower Party's execution, delivery and performance of the Amendment Documents, and compliance with the terms and provisions of the Loan Documents, as amended by the Amendment Documents, will not (i) contravene any Applicable Law, (ii) conflict or be inconsistent with or result in any breach of any term, covenant, condition or provision of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the Property or such Borrower Party's other assets pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which such Borrower Party is a party or by which such Borrower Party or any of the Property or such Borrower Party's other assets is bound or may be subject, or (iii) violate any term of any Borrower Party's certificate of incorporation or other documents and agreements governing such Borrower Party's existence, management or operation. No Borrower Party is required to obtain the consent of any other party, including any Governmental Authority, in connection with the execution, delivery, performance, validity or enforceability of the Loan Documents, as amended by the Amendment Documents.

 

5.2.3.      Financial Matters . Each Borrower Party financial statement previously delivered to Lender was prepared in accordance with GAAP and completely, correctly and fairly present the financial condition and the results of operations of each Borrower Party on the date and for the period covered by the financial statements. All other reports, statements and other data that any Borrower Party furnished to Lender in connection with the Loan are true and correct in all material respects and do not omit any fact or circumstance necessary to ensure that the statements are not misleading. Each Borrower Party (i) is solvent, (ii) is not bankrupt, and (iii) has no outstanding liens, suits, garnishments, bankruptcies or court actions which may render such Borrower Party insolvent or bankrupt. Since the date of the last financial statements each Borrower Party delivered to Lender, no event, act, condition or liability has occurred or exists, which has had, or may reasonably be expected to have, a material adverse effect upon (A) such Borrower Party's business, condition (financial or otherwise) or operations, or (B) such Borrower Party's ability to perform or satisfy, or Lender's ability to enforce, any of the Indebtedness.

 

 

 

 

5.2.4.      Litigation . There are no suits or proceedings (including condemnation) pending or (to Borrower's knowledge, after reasonable inquiry) threatened against or affecting any Borrower Party or the Property or involving the validity, enforceability or priority of any of the Loan Documents. Borrower has not received notice from any Governmental Authority alleging that any Borrower Party or the Property is violating any Applicable Law.

 

5.2.5.      No Default . No Event of Default currently exists or would exist after giving effect to the transactions contemplated by this Amendment.

 

6.

MISCELLANEOUS .

 

6.1.      Effect of Amendment . The terms of this Amendment shall be incorporated into and form a part of the Loan Agreement. Except as expressly amended, modified and supplemented by this Amendment, the Loan Agreement shall continue in full force and effect in accordance with its original stated terms, all of which are hereby reaffirmed in every respect as of the Effective Date. In the event of any irreconcilable inconsistency between the terms of this Amendment and the terms of the Loan Agreement, the terms of this Amendment shall control and govern, and the agreements shall be interpreted so as to carry out and give full effect to the intent of this Amendment. All references to the Loan Agreement appearing in any of the Loan Documents shall hereafter be deemed references to the Loan Agreement as amended, modified and supplemented by this Amendment.

 

6.2.      No Course of Dealing . This Amendment shall not establish a course of dealing or be construed or relied upon as evidence of any willingness on Lender's part to grant any future consent or amendment, should any be requested.

 

6.3.      Release . Borrower hereby forever releases Lender from any and all liens, claims, interests and causes of action of any kind or nature (each, a “ Claim ”) that it now has or may hereafter have against Lender, and hereby agrees to indemnify and hold harmless Lender for all Claims that any Person may bring against Lender that arise under or in connection with the Loan Agreement based on facts existing on or before the Effective Date.

 

6.4.      Ratification and Affirmation . Borrower hereby acknowledges the terms of this Amendment and ratifies and affirms its obligations under, and acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect.

 

6.5.      Headings . The headings of the sections and subsections of this Amendment are for convenience of reference only and will not affect the scope or meaning of the sections of this Amendment.

 

6.6.      Applicable Law . The Amendment Documents and the rights and obligations of Borrower and Lender are in all respects governed by, and construed and enforced in accordance with the Governing Law (without giving effect to its principles of conflicts of law), except for those terms of the Security Instruments pertaining to the creation, perfections, validity, priority or foreclosure of the liens or security interests on the Property located within the State, which terms will be governed by, and construed and enforced in accordance with the laws of the State (without giving effect to its principles of conflicts of law).

 

6.7.      Counterparts . This Amendment may be executed in any number of counterparts with the same effect as if all signers executed the same instrument. All counterparts of this Amendment must be construed together and will constitute one instrument.

 

6.8.      Reimbursement of Expenses . Borrower agrees to pay or reimburse Lender for all reasonable out-of-pocket expenses, including Attorneys' Fees, incurred by Lender in connection with the negotiation, preparation, execution and delivery of this Amendment and the other Amendment Documents and the consummation of the transactions contemplated hereby.

 

 

[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

 

 

 

 

 

 

 

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed effective as of the Effective Date.

 

Borrower:

EDUCATIONAL DEVELOPMENT CORPORATION

a Delaware corporation

 

 

 

 

 

 

 

 

 

 

By:

/s/ Randall W. White

 

 

Name:

Randall W. White

 

 

Title:

Chairman, President and CEO

 

 

 

 

 

 

 

 

BORROWER'S SIGNATURE PAGE TO

SECOND AMENDMENT TO LOAN AGREEMENT


 

 

 

 

Lender:

MIDFIRST BANK, a federally chartered savings association

 

 

 

 

 

 

 

 

 

 

By:

/s/ Marc Short

 

 

Name:

Marc Short

 

 

Title:

Senior Vice President 

 

 

 

 

 

 

 

 

LENDER'S SIGNATURE PAGE TO

SECOND AMENDMENT TO LOAN AGREEMENT


 

 

 

 

EXHIBIT A  

 

REPLACEMENT R EVOLVING NOTE

 

(See attached.)

 

 

 

 
 

 

 

 

Exhibit 10.12

 

THIRD AMENDMENT LOAN AGREEMENT

 

THIS THIRD AMENDMENT TO LOAN AGREEMENT (this “ Amendment ”) is made and entered into as of June 28, 2016 (the “ Effective Date ”), by and between EDUCATIONAL DEVELOPMENT CORPORATION, a Delaware corporation (“ Borrower ”), and MIDFIRST BANK, a federally charted savings association (“ Lender ”).

 

BACKGROUND RECITALS

 

A.     Borrower and Lender are parties to that certain Loan Agreement dated as of December 1, 2015, as amended by that certain First Amendment to Loan Agreement dated as of March 10, 2016, and as further amended by that certain Second Amendment to Loan Agreement dated as of June 15, 2016 (as amended, the “ Loan Agreement ”). Unless the context otherwise requires, capitalized terms used in this Amendment and not otherwise defined herein have the respective meanings assigned to them in the Loan Agreement.

 

B.     Borrower has requested that Lender make a new term loan in the principal amount of $4,000,000, and Lender has agreed to such request, but only upon the terms and conditions set forth in this Amendment.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

 

1.

TERM LOAN #2 . Subject to Borrower's satisfactory performance of the terms and conditions contained in this Amendment and the other Loan Documents, Lender agrees to make a new term loan (to be referred to as Term Loan #2) to the Borrower on the Effective Date of this Amendment in the principal amount of $4,000,000. Accordingly, the Loan Agreement is hereby amended as follows:

 

1.1.      Term Loan #2 . A new Section 2.6 is hereby added to the Loan Agreement to read as follows:

 

2.6      Term Loan #2 . Subject to the terms of this Agreement and in reliance on Borrower's representations and warranties in the Loan Documents, Lender agrees to lend, and Borrower agrees to borrow, Term Loan #2. THEREFORE, FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender the Term Loan #2 Maximum Principal Amount with fees, costs and interest as set forth in, and payable (in Dollars at Lender's Offices) pursuant to, this Agreement. The funding and closing of Term Loan #2 will take place in Lender's Offices or at such other place as Lender may designate.

 

(a)      Interest . Subject to Subsection 2.3(a)(ii) above, the Term Loan #2 Principal Amount of Term Loan #2 bears interest at the LIBO Rate.

 

(b)      Payment . Borrower shall pay to Lender on each Principal Payment Date the Term Loan #2 Amortized Installment Amount. On the Term Loan #2 Maturity Date, Borrower shall pay in full to Lender (1) the Term Loan #2 Principal Amount along with all unpaid, accrued interest, and (2) all other Indebtedness.

 

(c)      Prepayment . Borrower may prepay Term Loan #2, in whole or in part, without premium or penalty.

 

1.2.      Definitions in Loan Agreement . The following definitions (a) to the extent already defined in Exhibit A of the Loan Agreement, are hereby amended in their entirety to read as follows, (b) to the extent not already defined in Exhibit A , are hereby added to Exhibit A of the Loan Agreement, to be inserted in alphabetical order, to read as follows:

 

Interest Payment Date means, with respect to any Loan, the first Business Day of each calendar month beginning on the first month following the Effective Date and ending on

 

1

 

 

the earlier of (i) the date such Loan is repaid in full and any commitment therefor is terminated, and (ii) with respect to the Term Loan, the Maturity Date, with respect to Term Loan #2, the Term Loan #2 Maturity Date, or with respect to the Revolving Loan, the Termination Date.

 

Loan to Value Ratio means the percentage resulting from a fraction having (i) a numerator equal to the Principal Term Amount plus any unfunded amounts under the Term Loan, and (ii) a denominator equal to the value of the Land and Improvements, as determined by the most recent Appraisal, established as of the date on which the fraction is determined.

 

Loans means, collectively, the Term Loan, Term Loan #2 and the Revolving Loan.

 

Maturity Date means the earlier to occur of (i) the Stated Maturity Date and (ii) the date on which the entire Term Loan must be paid in full after acceleration pursuant to the terms of the Loan Documents.

 

Maximum Principal Amount means, collectively, the Maximum Term Principal Amount, the Term Loan #2 Maximum Principal Amount and the Maximum Revolving Principal Amount.

 

Principal Amount means, collectively, the Principal Term Amount, the Term Loan #2 Principal Amount and the Principal Revolving Amount.

 

Principal Payment Date means, with respect to any Loan, the first Business Day of each calendar month beginning on July I, 2016, and ending on the earlier of (i) the date such Loan is repaid in full, and (ii) with respect to the Term Loan, the Maturity Date, with respect to Term Loan #2, the Term Loan #2 Maturity Date, or with respect to the Revolving Loan, the Termination Date.

 

Property means, collectively, the Term Loan Property and the Term Loan #2 Property.

 

Suspension Notice means the notice from Lender to Borrower setting forth Lender's determination that (A) the LIBOR Index is not reported or (8) (as a result of changes to Applicable Law) it has become unlawful for Lender to make or maintain any Loan (or any portion thereof) at the LIBO Rate.

 

Term Loan means the term loan Lender makes to Borrower pursuant to Section 2.1 of this Agreement (or the other Loan Documents) up to the Maximum Term Principal Amount.

 

Term Loan Property means, collectively, the Land, the Improvements and the Additional Collateral with respect thereto.

 

Term Loan #2 means the term loan Lender makes to Borrower pursuant to Section 2.6 of this Agreement up to the Term Loan #2 Maximum Principal Amount.

 

Term Loan #2 Amortized Installment Amount means an amount (initially $34,541.28) which would fully amortize the stated principal amount of Term Loan #2, together with interest thereon at the interest rate determined in accordance with Section 2.6(a) . over an assumed 12-year amortization period commencing as of June 28, 2016. Beginning December 1, 2017, and on each December 1 thereafter, the required monthly installment amount shall be re-determined, effective with the installment payment due on the following January 1, with the re-determined installment amount being an amount which would fully amortize the then-unpaid principal balance of Term Loan #2, together with interest thereon at the fluctuating interest rate determined in accordance with Section 2.6(a) as of such re-determination date, over the remainder of such assumed 12-year amortization period.

 

Term Loan #2 Appraisal means collectively (a) an MAI appraisal of the Term

 

2

 

 

Loan #2 Property ordered by Lender, dated within 90 days of its use, and prepared by a licensed appraiser satisfactory to Lender, (b) any appraisal of the Term Loan #2 Property acceptable to Lender in its sole discretion, (c) an environmental site assessment of the Term Loan #2 Property acceptable to Lender in its sole discretion, and (d) any condition report of the Term Loan #2 Property acceptable to Lender in its sole discretion.

 

Term Loan #2 Improvements ” means all improvements now or hereafter located upon the Term Loan #2 Land.

 

Term Loan #2 Land means the land described in Exhibit B-2 of this Agreement.

 

Term Loan #2 Loan Title Policy ” means the title insurance policy (i) naming Lender as the insured, (ii) in the amount of the Term Loan #2 Maximum Principal Amount, (iii) in form (including endorsements), date and substance, and written by a title insurance underwriter, satisfactory to Lender, (iv) insuring a valid first lien upon the Term Loan #2 Land and Term Loan #2 Improvements by virtue of the Security Instrument therefor, and (v) containing no exceptions other than the preprinted exceptions and the Term Loan #2 Permitted Encumbrances.

 

Term Loan #2 Loan to Value Ratio means the percentage resulting from a fraction having (i) a numerator equal to the Principal Term Loan #2 Amount plus any unfunded amounts under Term Loan #2, and (ii) a denominator equal to the value of the Term Loan #2 Land and Term Loan #2 Improvements, as determined by the most recent Term Loan #2 Appraisal, established as of the date on which the fraction is determined.

 

Term Loan #2 Maturity Date means the earlier to occur of (i) the Term Loan #2 Stated Maturity Date and (ii) the date on which the entire Term Loan #2 Loan must be paid in fu11 after acceleration pursuant to the terms of the Loan Documents.

 

Term Loan #2 Maximum Principal A mount means the lesser of (i) $4,000,000.00 and (ii) 80% of the Term Loan #2 Loan to Value Ratio.

 

Term Loan #2 Permitted Encumbrances means the encumbrances, approved by Lender, set forth in Schedule B of the Term Loan #2 Loan Title Policy, except for the preprinted exceptions to title coverage.

 

Term Loan #2 Principal Amount means, at any point in time, that portion of the principal balance of Term Loan #2 which is unpaid.

 

Term Loan #2 Property means, collectively, the Term Loan #2 Land, the Term Loan #2 Improvements and the Additional Collateral with respect thereto.

 

Term Loan #2 Stated Maturity Date means June 28, 2021.

 

1.3.      Term Loan . Section 2. (b) of the Loan Agreement is hereby amended in its entirety to read as follows:

 

(b)      Payment . Borrower shall pay to Lender on each Principal Payment Date: (A) with respect to Tranche A, the Installment Amount on each Interest Payment Date, and (B) with respect to Tranche B, the Amortized Installment Amount. On the Maturity Date, Borrower shall pay in full to Lender (1) the Principal Term Amount along with all unpaid, accrued interest, and (2) all other Indebtedness.

 

1.4.      LIBO Rate . Section 2.3(a)(ii) of the Loan Agreement is hereby amended in its entirety to read as follows:

 

(iii) Immediately after Lender gives a Suspension Notice to Borrower, Lender's obligation to make or maintain Tranche B of the Term Loan, Term Loan #2, the Revolving Loan and Additional Costs at the LIBO Rate will be suspended and all interest and Additional Costs payable at the LIBO Rate will automatically convert to the Prime Rate. If

 

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circumstances further change and nullify the basis on which the Suspension Notice was given, then Lender will advise Borrower of the change and thereafter Tranche B of the Term Loan, Term Loan #2 the Revolving Loan and the Additional Costs will automatically bear interest at the LIBO Rate.

 

1.5.      New Exhibit . Exhibit B-2 attached to this Amendment is hereby added to the Loan Agreement as a new Exhibit B-2.

 

2.

CONDITIONS TO EFFECTIVENESS . This Amendment will be effective as of the Effective Date, but subject to satisfaction of each of the following conditions precedent:

 

2.1.      Execution of Amendment Documents . The following documents (collectively, the “ Amendment Documents ”) shall have been executed by the applicable parties and delivered to Lender, each in form and substance satisfactory to Lender:

 

 

(a)

this Amendment;

 

 

(b)

a promissory note to evidence Term Loan #2;

 

 

(c)

a Security Instrument (mortgage) covering the Term Loan #2 Property; and

 

 

(d)

an amendment to the Security Instrument (mortgage) covering the Term Loan Property to update the description of the indebtedness secured thereby.

 

2.2.      Term Loan #2 Appraisal . At Borrower's expense, Lender shall obtain a Term Loan #2 Appraisal. The cost for the Term Loan #2 Appraisal shall be Additional Costs. Borrower shall cooperate (including providing access to the Collateral) with anyone preparing a Term Loan #2 Appraisal.

 

2.3.      Title Insurance . Borrower shall have furnished to Lender, at Borrower's expense, a commitment for the Term Loan #2 Loan Title Policy, and the Term Loan #2 Title Policy shall be delivered no later than 30 days after the Effective Date of this Amendment. If the Term Loan #2 Loan Title Policy becomes invalid, or the insurer becomes insolvent or is placed in receivership, then Borrower shall, within 30 days after Lender's demand, furnish to Lender, at Borrower's expense, a substitute Term Loan #2 Loan Title Policy.

 

2.4.      Flood Hazard Determination . Lender shall have received evidence satisfactory to it that the Term Loan #2 Property is not located in an area designated by the Secretary of Housing and Urban Development as an area having special flood or mudslide hazards, and that flood hazard insurance is not required for any credit to be extended hereunder pursuant to any Applicable Law.

 

2.5.      Borrowing Resolutions . Lender shall have received copies of resolutions or other action of the Board of Directors of Borrower authorizing the execution, delivery and performance of this Amendment and the other Loan Documents to which it is a party, certified by the Secretary of Borrower.

 

2.6.      Legal Matters . All legal matters incident to this Amendment shall be satisfactory to Lender and its counsel.

 

3.

REPRESENTATIONS AND WARRANTIES .

 

3.1.      Reaffirmation . Borrower confirms that all representations and warranties made by it in the Loan Agreement and the other Loan Documents are, and as of the Effective Date will be, true and correct in all material respects, and all of such representations and warranties are hereby remade and restated as of the Effective Date and shall survive the execution and delivery of this Amendment.

 

3.2.       Additional Representations and Warranties .

 

3.2.1.      Power; Transactional Authority; Enforceability . Each Borrower Party has the requisite power and authority to execute, deliver and carry out the terms and provisions of the Amendment Documents to which it is a party, and has taken all necessary actions to authorize its execution, delivery and performance of the Amendment Documents. Each Borrower Party has duly

 

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executed and delivered the Amendment Documents. The Amendment Documents each Borrower Party executes or under which such Borrower Party is obligated constitute such Borrower Party's legal, valid and binding obligations, enforceable in accordance with the terms of the Loan Documents, as amended by the Amendment Documents, subject to (i) the effect of any Applicable Bankruptcy Law, or (ii) general principles of equity.

 

3.2.2.      No Violation; No Consent . Each Borrower Party's execution, delivery and performance of the Amendment Documents, and compliance with the terms and provisions of the Loan Documents, as amended by the Amendment Documents, will not (i) contravene any Applicable Law, (ii) conflict or be inconsistent with or result in any breach of any term, covenant, condition or provision of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the Property or such Borrower Party's other assets pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which such Borrower Party is a party or by which such Borrower Party or any of the Property or such Borrower Party's other assets is bound or may be subject, or (iii) violate any term of any Borrower Party's certificate of incorporation or other documents and agreements governing such Borrower Party's existence, management or operation. No Borrower Party is required to obtain the consent of any other party, including any Governmental Authority, in connection with the execution, delivery, performance, validity or enforceability of the Loan Documents, as amended by the Amendment Documents.

 

3.2.3.      Financial Matters . Each Borrower Party financial statement previously delivered to Lender was prepared in accordance with GAAP and completely, correctly and fairly present the financial condition and the results of operations of each Borrower Party on the date and for the period covered by the financial statements. All other reports, statements and other data that any Borrower Party furnished to Lender in connection with the Loan are true and correct in all material respects and do not omit any fact or circumstance necessary to ensure that the statements are not misleading. Each Borrower Party (i) is solvent, (ii) is not bankrupt, and (iii) has no outstanding liens, suits, garnishments, bankruptcies or court actions which may render such Borrower Party insolvent or bankrupt. Since the date of the last financial statements each Borrower Party delivered to Lender, no event, act, condition or liability has occurred or exists, which has had, or may reasonably be expected to have, a material adverse effect upon (A) such Borrower Party's business, condition (financial or otherwise) or operations, or (B) such Borrower Party's ability to perform or satisfy, or Lender's ability to enforce, any of the Indebtedness.

 

3.2.4.      Litigation . There are no suits or proceedings (including condemnation) pending or (to Borrower's knowledge, after reasonable inquiry) threatened against or affecting any Borrower Party or the Property or involving the validity, enforceability or priority of any of the Loan Documents. Borrower has not received notice from any Governmental Authority alleging that any Borrower Party or the Property is violating any Applicable Law.

 

3.2.5.      No Default . No Event of Default currently exists or would exist after giving effect to the transactions contemplated by this Amendment.

 

4.

MISCELLANEOUS .

 

4.1.      Effect of Amendment . The terms of this Amendment shall be incorporated into and form a part of the Loan Agreement. Except as expressly amended, modified and supplemented by this Amendment, the Loan Agreement shall continue in full force and effect in accordance with its original stated terms, all of which are hereby reaffirmed in every respect as of the Effective Date. In the event of any irreconcilable inconsistency between the terms of this Amendment and the terms of the Loan Agreement, the terms of this Amendment shall control and govern, and the agreements shall be interpreted so as to carry out and give full effect to the intent of this Amendment. All references to the Loan Agreement appearing in any of the Loan Documents shall hereafter be deemed references to the Loan Agreement as amended, modified and supplemented by this Amendment.

 

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4.2.      No Course of Dealing . This Amendment shall not establish a course of dealing or be construed or relied upon as evidence of any willingness on Lender's part to grant any future consent or amendment, should any be requested.

 

4.3.      Release . Borrower hereby forever releases Lender from any and all liens, claims, interests and causes of action of any kind or nature (each, a “ Claim ”) it now has or may hereafter have against Lender, and hereby agrees to indemnify and hold harmless Lender for all Claims that any Person may bring against Lender that arise under or in connection with the Loan Agreement based on facts existing on or before the Effective Date.

 

4.4.      Ratification and Affirmation . Borrower hereby acknowledges the terms of this Amendment and ratifies and affirms its obligations under, and acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect.

 

4.5.      Headings . The headings of the sections and subsections of this Amendment are for convenience of reference only and will not affect the scope or meaning of the sections of this Amendment.

 

4.6.      Applicable Law . The Amendment Documents and the rights and obligations of Borrower and Lender are in all respects governed by, and construed and enforced in accordance with the Governing Law (without giving effect to its principles of conflicts of law), except for those terms of the Security Instruments pertaining to the creation, perfections, validity, priority or foreclosure of the liens or security interests on the Property located within the State, which terms will be governed by, and construed and enforced in accordance with the laws of the State (without giving effect to its principles of conflicts of law).

 

4.7.      Counterparts . This Amendment may be executed in any number of counterparts with the same effect as if all signers executed the same instrument. All counterparts of this Amendment must be construed together and will constitute one instrument.

 

4.8.      Reimbursement of Expenses . Borrower agrees to pay or reimburse Lender for all reasonable out-of-pocket expenses, including Attorneys’ Fees, incurred by Lender in connection with the negotiation, preparation, execution and delivery of this Amendment and the other Amendment Documents and the consummation of the transactions contemplated hereby.

 

[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 

 

 

 

 

 

 

 

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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed effective as of the Effective Date.

 

 

Borrower:

EDUCATIONAL DEVELOPMENT CORPORATION

a Delaware corporation

 

 

 

 

 

 

 

 

 

 

By:

/s/ Randall W. White

 

 

Name:

Randall W. White

 

 

Title:

Chairman, President and CEO

 

 

 

 

 

 

 

 

BORROWER’S SIGNATURE PAGE

TO

THIRD AMENDMENT TO LOAN AGREEMENT


 

 

 

 

Lender:

MIDFIRST BANK, a federally chartered savings association

 

 

 

 

 

 

 

 

 

 

By:

/s/ Marc Short

 

 

Name:

Marc Short

 

 

Title:

Senior Vice President 

 

 

 

 

 

 

 

 

LENDER’S SIGNATURE PAGE

TO

THIRD AMENDMENT TO LOAN AGREEMENT


 

 

 

 

 

 

EXHIBIT B-2

 

Lot One (1), Block Seventeen (17), TULSA SOUTHEAST INDUSTRIAL DISTRICT, BLOCKS 12A AND 13 THRU 18 INCLUSIVE, a Resubdivision of Block 12 inclusive, and Part of Block “A” and all of Block “B” of Tulsa Southeast Industrial District Extended Addition to the City of Tulsa, Tulsa County, State of Oklahoma, a part of Section 31, T-19-N, R-14-E, according to the recorded Plat thereof.

 

 

 

 
 

 

 

 

 

Exhibit 10.13

 

FOURTH AMENDMENT LOAN AGREEMENT

 

THIS FOURTH AMENDMENT TO LOAN AGREEMENT (this “ Amendment ”) is made and entered into as of February 7, 2017 (the “ Effective Date ”), by and between EDUCATIONAL DEVELOPMENT CORPORATION, a Delaware corporation (“ Borrower ”), and MIDFIRST BANK, a federally charted savings association (“ Lender ”).

 

BACKGROUND RECITALS

 

A.     Borrower and Lender are parties to that certain Loan Agreement dated as of December 1, 2015, as amended by that certain First Amendment to Loan Agreement dated as of March 10, 2016, as amended by that certain Second Amendment to Loan Agreement dated as of June 15, 2016, and as further amended by that certain Third Amendment to Loan Agreement dated as of June 28, 2016 (as amended, the “ Loan Agreement ”). Unless the context otherwise requires, capitalized terms used in this Amendment and not otherwise defined herein have the respective meanings assigned to them in the Loan Agreement.

 

B.     Borrower failed to maintain a Debt to Worth Ratio not in excess of 3.50:1.00 as of November 30, 2016, which is a DTW Test Default in violation of Section 5.1(i) of the Loan Agreement (the “ Specified Default ”), which constitutes an Event of Default under the Loan Agreement. Borrower has requested that Lender waive the Specified Default and any consequences thereof.

 

C.     The Lender has agreed to waive the Specified Default and any consequences thereof, but only upon the terms and conditions set forth in this Amendment.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

 

1.

WAVIER OF SPECIFIED DEFAULT .

 

1.1.      Waiver . Subject to the terms of this Amendment, Lender hereby waives the Specified Default and any consequences thereof. This waiver is limited to the Specified Default, is only for the calculation period as of November 30, 2016, and does not extend to any other default or Event of Default that may have occurred or be continuing as of the Effective Date.

 

1.2.      No Course of Dealing, Strict Compliance, No Prejudice . Under no circumstance does Lender's election to waive the Specified Default (i) modify the Loan Documents (except as expressly modified by this Amendment); (ii) establish a custom or course of dealing with respect to any of the Loan Documents or be construed as a waiver of Lender's insistence on strict compliance by Borrower with the terms and provisions of the Loan Documents; (iii) operate as a waiver of any existing or future default or Event of Default under the Loan Documents; (iv) entitle Borrower to any other or further notice or demand whatsoever; (v) except as set forth in this Amendment, in any way modify, change, impair, affect, diminish or release any of Borrower's obligations or liability under or pursuant to the Loan Documents or any other liability Borrower may have to Lender; or (vi) waive, limit or condition Lender's existing rights and remedies under the Loan Documents, all of which rights and remedies are expressly reserved except with respect to the Specified Default.

 

2.

PRICING .

 

2.1.      Definitions in Loan Agreement . The following definitions (a) to the extent already defined in Exhibit A of the Loan Agreement, are hereby amended in their entirety to read as follows, (b) to the extent not already defined in Exhibit A , are hereby added to Exhibit A of the Loan Agreement, to be inserted in alphabetical order, to read as follows:

 

Adjusted Funded Debt to EBITDA Ratio means, as of any date of determination, the ratio that Lender reasonably determines of (i) Borrower's Funded Debt minus the Principal Term Amount (Lender's Note #1108135-100 and Note #1108135-102) to (ii) Borrower's EBITDA on trailing 12-month basis, minus lease payments received by Borrower

 

1

 

 

under the Hilti Lease during the same period.

 

LIBOR Margin means, for any day, a percentage per annum (expressed as basis points) as set forth below, based upon the Adjusted Funded Debt to EBITDA Ratio for the most recent fiscal quarter of Borrower:

 

Pricing Tier

Adjusted Funded Debt to EBITDA Ratio

LIBOR Margin (bps)

I

> 3.25

362.50

II

> 2.75 but <  3.25

350.00

III

> 2.25 but <  2.75

337.50

IV

<  2.25

325.00

 

Any increase or decrease in the LIBOR Margin resulting from a change in the Adjusted Funded Debt to EBITDA Ratio for the most recent fiscal quarter of Borrower shall become effective not later than 30 days following the date a Compliance Certificate is delivered and confirmed by Lender; provided, however, that if Borrower fails to deliver a Compliance Certificate on or before the applicable Compliance Certificate Due Date, then Pricing Tier I shall apply as of the first Business Day after such Compliance Certificate Due Date and shall continue to apply until not later than 30 days following the date a Compliance Certificate is delivered and confirmed by Lender, whereupon the LIBOR Margin shall be adjusted based upon the Adjusted Funded Debt to EBITDA Ratio contained in such Compliance Certificate. The initial LIBOR Margin shall be determined based upon Pricing Tier IV until adjusted otherwise.

 

Term Loan Principal Amount means, at any point in time, that portion of the principal balance of the Term Loan which is unpaid.

 

2.2.     Deleted Definition. Effective as of the Effective Date, the definition of “Funded Debt to EBITDA Ratio” is hereby deleted from the Loan Agreement.

 

3.

OTHER MODIFICATIONS TO LOAN AGREEMENT .

 

3.1.      Definitions . The following definitions appearing in Exhibit A of the Loan Agreement are hereby amended in their entirety to read as follows:

 

AFD Test Default means that, as of the last day of any calendar month, the Adjusted Funded Debt to EBITDA Ratio is greater than 3.75:1.00.

 

Compliance Certificate Due Date means the 30th calendar day following the end of each calendar month. If the Compliance Certificate Due Date is on a day which is not a Business Day, then the Compliance Certificate Due Date will be the next Business Day.

 

OCR Test Default means that, as of the last day of any calendar month, the Debt Coverage Ratio is less than 1.25:1.00.

 

Minimum Tangible Net Worth means Borrower's tangible net worth as of February 28, 2017, plus 70% of the net profit (if positive) for each subsequent fiscal quarter, with each increase to be cumulative.

 

TNW Test Default means that, as of the last day of any fiscal quarter, Borrower's tangible net worth is less than the Minimum Tangible Net Worth.

 

3.2.      Deleted Definition . Effective as of the Effective Date, the definitions of “DTW Test Default” and “Debt to Worth Ratio” are hereby deleted from the Loan Agreement.

 

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3.3.      Reporting . Section 4.1(f) of the Loan Agreement is hereby amended in its entirety to read as follow:

 

(f)      Financial Statements and other Reports . Borrower shall deliver to Lender the below statements and reports on or before the below delivery deadline. Borrower shall also deliver to Lender any other information, reports or certificates as and when Lender requests.

 

Statement or Report

Frequency

Delivery Deadline

Borrower's audited annual financial statements

Annually

Within 90 days after each fiscal year ends

Borrower's monthly financial statements

Monthly

Within 30 days after each calendar month ends

Projections, prepared on a rolling 12-month basis, of inventory and compliance with financial covenants

Quarterly

Within 30 days after each quarter ends

Guarantor's balance sheet

Annually

Within 90 days after each fiscal year ends

Guarantor's personal financial statement

Annually

Within 90 days after each fiscal year ends

Audited annual financial statements of Hilti

Annually

Within 90 days after each fiscal year of Hilti

Confirmation of payment of rent by

Hilti and CAM payments under Hilti Lease

Annually

Within 90 days after each anniversary of the Effective Date

Copies of filed federal income tax returns of Guarantor

Annually

Within 30 days after filing

 

All statements and reports must be in scope and detail reasonably satisfactory to Lender. During any Event of Default Period, Lender may require that all statements and reports be prepared, audited and certified (at Borrower's cost and expense) by an independent certified public accountant, acceptable to Lender. Each rent roll must, with respect to each of the Leases, contain: (i) each Tenant's name and address; (ii) rental amount; (iii) square footage of the premises; (iv) security deposit; (v) commencement date; (vi) termination date; (vii) date through which rent is paid; and (viii) the occurrence of any default. Each Guarantor balance sheet must include a detailed global schedule of all real estate interests, directly or indirectly, owned. Borrower shall provide Lender with such additional financial, management, or other information regarding any Borrower Party or the Property, as Lender may request. Upon Lender's request, Borrower shall deliver all items required by this Subsection in an electronic format or by electronic transmission reasonably acceptable to Lender.

 

3.4.      Dividends . Section 4.1(v) of the Loan Agreement is hereby amended in its entirety to read as follows:

 

(v)      Limitation on Dividends and Stock Buybacks . Borrower shall not declare,

make or pay any dividend, distribution or stock buyback, or set apart any sum or any of its assets for the payment of any dividend, distribution or stock buyback.

 

3.5.      Accounts . A new subsection (x) is hereby added to Section 4.1 of the Loan Agreement to read as follows:

 

(x)      Accounts . Maintain its primary operating accounts with Lender and utilize

Lender for its cash and treasury management services needs.

 

3.6.      Amended Event of Default . Section 5.l(i) of the Loan Agreement is amended in its entirety to read as follows:

 

 

(i)

TNW Test Default . A TNW Test Default occurs; or

 

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3.7.      Additional Event of Default . A new subsection (m) is hereby added to Section 5.1 of the Loan Agreement to read as follows:

 

(m)      AFD Test Default . An AFD Test Default occurs.

 

 

3.8.

Notices . The notice address for Borrower set forth in Section 6.18 shall be the following:

 

5404 South 122nd East Avenue 

Tulsa, OK 74146

Attn: Randall W. White, Chairman, President and CEO

 

3.9.      Replacement Compliance Certificate . The form of Compliance Certificate set forth in Exhibit C of Loan Agreement is hereby replaced with Exhibit C-1 attached to this Amendment.

 

4.

CONDITIONS TO EFFECTIVENESS . This Amendment will be effective as of the Effective Date, but subject to satisfaction of each of the following conditions precedent:

 

4.1.      Execution of Amendment      This Amendment shall have been executed by Borrower and delivered to Lender.

 

 

4.2.

Fee . Borrower shall have paid a non-refundable fee in the amount of $10,000.

 

4.3.      Legal Matters . All legal matters incident to this Amendment shall be satisfactory to Lender and its counsel.

 

5.

REPRESENTATIONS AND WARRANTIES .

 

5.1.      Reaffirmation . Borrower confirms that all representations and warranties made by it in the Loan Agreement and the other Loan Documents are, and as of the Effective Date will be, true and correct in all material respects, and all of such representations and warranties are hereby remade and restated as of the Effective Date and shall survive the execution and delivery of this Amendment.

 

5.2        Additional Representations and Warranties .

 

(i)      Power; Transactional Authority; Enforceability . Borrower has the requisite power and authority to execute, deliver and carry out the terms and provisions of this Amendment, and has taken all necessary action to authorize its execution, delivery and performance of this Amendment. Borrower has duly executed and delivered this Amendment. This Amendment constitutes Borrower's legal, valid and binding obligations, enforceable in accordance with the terms of the Loan Documents, as amended by this Amendment, subject to (i) the effect of any Applicable Bankruptcy Law, or (ii) general principles of equity.

 

(ii)      No Violation; No Consent . Borrower's execution, delivery and performance of this Amendment, and compliance with the terms and provisions of the Loan Documents, as amended by this Amendment, will not (i) contravene any Applicable Law, (ii) conflict or be inconsistent with or result in any breach of any term, covenant, condition or provision of, or constitute a default under, or result in the creation or imposition of (or the obligation to create or impose) any lien upon any of the Property or Borrower's other assets pursuant to the terms of any indenture, mortgage, deed of trust, agreement or other instrument to which Borrower is a party or by which Borrower or any of the Property or Borrower's other assets is bound or may be subject, or (iii) violate any term of Borrower's certificate of incorporation or other documents and agreements governing Borrower's existence, management or operation. Borrower is not required to obtain the consent of any other party, including any Governmental Authority, in connection with the execution, delivery, performance, validity or enforceability of the Loan Documents, as amended by the Amendment Documents.

 

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(iii)      Financial Matters . Each Borrower Party financial statement previously delivered to Lender was prepared in accordance with GAAP and completely, correctly and fairly present the financial condition and the results of operations of each Borrower Party on the date and for the period covered by the financial statements. All other reports, statements and other data that any Borrower Party furnished to Lender in connection with the Loan are true and correct in all material respects and do not omit any fact or circumstance necessary to ensure that the statements are not misleading. Each Borrower Party (i) is solvent, (ii) is not bankrupt, and (iii) has no outstanding liens, suits, garnishments, bankruptcies or court actions which may render such Borrower Party insolvent or bankrupt. Since the date of the last financial statements each Borrower Party delivered to Lender, no event, act, condition or liability has occurred or exists, which has had, or may reasonably be expected to have, a material adverse effect upon (A) such Borrower Party's business, condition (financial or otherwise) or operations, or (8) such Borrower Party's ability to perform or satisfy, or Lender's ability to enforce, any of the Indebtedness.

 

(iv)      Litigation . There are no suits or proceedings (including condemnation) pending or (to Borrower's knowledge, after reasonable inquiry) threatened against or affecting any Borrower Party or the Property or involving the validity, enforceability or priority of any of the Loan Documents. Borrower has not received notice from any Governmental Authority alleging that any Borrower Party or the Property is violating any Applicable Law.

 

(v)      No Default . No Event of Default currently exists or would exist after giving effect to the transactions contemplated by this Amendment.

 

6.

MISCELLANEOUS .

 

6.1.      Effect of Amendment . The terms of this Amendment shall be incorporated into and form a part of the Loan Agreement. Except as expressly amended, modified and supplemented by this Amendment, the Loan Agreement shall continue in full force and effect in accordance with its original stated terms, all of which are hereby reaffirmed in every respect as of the Effective Date. In the event of any irreconcilable inconsistency between the terms of this Amendment and the terms of the Loan Agreement, the terms of this Amendment shall control and govern, and the agreements shall be interpreted so as to carry out and give full effect to the intent of this Amendment. All references to the Loan Agreement appearing in any of the Loan Documents shall hereafter be deemed references to the Loan Agreement as amended, modified and supplemented by this Amendment.

 

6.2.      No Course of Dealing: Past Acceptance . This Amendment shall not establish a course of dealing or be construed or relied upon as evidence of any willingness on Lender's part to grant any future consent or amendment, should any be requested. Lender acknowledges that Lender and its agents in the past may have accepted, without exercising the remedies to which Lender was entitled, payments and performance by Borrower that constituted Events of Default under the Loan Documents. Borrower acknowledges that no such acceptance or grace granted by Lender or its agents in the past, or Lender's agreement to the modifications evidenced hereby, has in any manner diminished Lender's right in the future to insist that Borrower Parties strictly comply with the terms of the Loan Documents, as modified by the terms of this Amendment Furthermore, Borrower specifically acknowledges that any future grace or forgiveness of any Events of Default shall not constitute a waiver or diminishment of any right of Lender with respect to any future Event of Default, whether or not similar to any Event of Default with respect to which Lender has in the past chosen, or may in the future choose, not to exercise all of the rights and remedies granted to it under the Loan Documents.

 

6.3.      Release . Borrower hereby releases, remises, acquits and forever discharges Lender and any co-lender or loan participant, together with their respective employees, agents, representatives, consultants, attorneys, fiduciaries, servants, officers, directors, partners, predecessors, successors and assigns, subsidiary corporations, parent corporations, and related corporate divisions (all of the foregoing the “ Released Parties ”), from any and all actions and causes of action, judgments, executions, suits, liens, debts, claims, counterclaims, defenses, demands, liabilities, obligations, damages and expenses of any and every character (collectively, “ Claims ”), known or unknown, direct or indirect, at law or in equity, of whatsoever kind or nature, whether heretofore or hereafter accruing, for or because of any matter or things done, omitted or suffered to be done by

 

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any of the Released Parties prior to and including the Effective Date, and in any way directly or indirectly arising out of or in any way connected to this Amendment or the other Loan Documents, or any of the transactions associated therewith, or the Property, including specifically but not limited to claims of usury, lack of consideration, fraudulent transfer and lender liability, that it now has or may hereafter have against any Released Party, and hereby agrees to indemnify and hold harmless Lender and each other Released Party for all Claims that any Person may bring against any such Released Party that arise under or in connection with the Loan Agreement based on facts existing on or before the Effective Date. THE FOREGOING RELEASE INCLUDES ACTIONS AND CAUSES OF ACTION, JUDGMENTS, EXECUTIONS, SUITS, DEBTS, CLAIMS, DEMANDS, LIABILITIES, OBLIGATIONS, DAMAGES AND EXPENSES ARISING AS A RESULT OF THE NEGLIGENCE OR STRICT LIABILITY OF ONE OR MORE OF THE RELEASED PARTIES.

 

6.4.      Ratification and Affirmation . Borrower hereby acknowledges the terms of this Amendment and ratifies and affirms its obligations under, and acknowledges, renews and extends its continued liability under, each Loan Document to which it is a party and agrees that each Loan Document to which it is a party remains in full force and effect.

 

6.5.      No Modification . This Amendment along with the Loan Documents supersedes and merges all prior and contemporaneous promises and agreements. No modification of this Amendment or any other Loan Document, or any waiver of rights under any of the foregoing, shall be effective unless made by supplemental agreement, in writing, executed by the Parties. The Parties further agree that the Loan Agreement, as amended by this Amendment, may not in any way be explained or supplemented by a prior, existing or future course of dealings between the Parties or by any prior, existing, or future performance between the Parties pursuant to this Amendment, the Loan Agreement or otherwise.

 

6.6.      Headings . The headings of the sections and subsections of this Amendment are for convenience of reference only and will not affect the scope or meaning of the sections of this Amendment

 

6.7.      Applicable Law . The Amendment Documents and the rights and obligations of Borrower and Lender are in all respects governed by, and construed and enforced in accordance with the Governing Law (without giving effect to its principles of conflicts of law), except for those terms of the Security Instruments pertaining to the creation, perfections, validity, priority or foreclosure of the liens or security interests on the Property located within the State, which terms will be governed by, and construed and enforced in accordance with the laws of the State (without giving effect to its principles of conflicts of law).

 

6.8.      Counterparts; Miscellaneous . This Amendment may be executed in any number of counterparts with the same effect as if all signers executed the same instrument. All counterparts of this Amendment must be construed together and will constitute one instrument This Amendment is a Loan Document Time is of the essence with respect to this Amendment. The Parties acknowledge and confirm that each of their respective attorneys has participated or has had the opportunity to participate jointly in the review and revision of this Amendment and that it has not been written solely by counsel for one party. The Parties therefore stipulate and agree that the rule of construction to the effect that any ambiguities are to or may be resolved against the drafting Party will not favor either Party against the other. The terms and provisions of this Amendment are binding upon and inure to the benefit of the Parties and their successors and assigns.

 

6.9.      Reimbursement of Expenses . Borrower agrees to pay or reimburse Lender for all reasonable out-of-pocket expenses, including Attorneys' Fees, incurred by Lender in connection with the negotiation, preparation, execution and delivery of this Amendment and the other Amendment Documents and the consummation of the transactions contemplated hereby.

 

 

[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]

 

6

 

 

 

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed effective as of the Effective Date.

 

 

Borrower:

EDUCATIONAL DEVELOPMENT CORPORATION

a Delaware corporation

 

 

 

 

 

 

 

 

 

 

By:

/s/ Randall W. White

 

 

Name:

Randall W. White

 

 

Title:

Chairman, President and CEO

 

 

 

 

 

 

 

 

BORROWER'S SIGNATURE PAGE

TO

FOURTH AMENDMENT TO LOAN AGREEMENT


 

 

 

 

Lender:

MIDFIRST BANK, a federally chartered savings association

 

 

 

 

 

 

 

 

 

 

By:

/s/ Marc Short

 

 

Name:

Marc Short

 

 

Title:

Senior Vice President 

 

 

 

 

 

 

 

 

LENDER'S SIGNATURE PAGE

TO

FOURTH AMENDMENT TO LOAN AGREEMENT

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in Registration Statements (No. 33-60188 and 333-100659) on Form S-8 of Educational Development Corporation of our report dated May 29, 2019, relating to the financial statements of Educational Development Corporation, appearing in this Annual Report on Form 10-K of Educational Development Corporation for the year ended February 28, 2019.

 

/s/ HOGANTAYLOR LLP

 

Tulsa, Oklahoma

May 29, 2019

 

 

 

 

 

Exhibit 31.1

 

CERTIFICATION

 

I, Randall W. White, certify that:

 

1.

I have reviewed this Annual Report on Form 10-K of Educational Development Corporation;

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

 

a.

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

b.

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

c.

Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

d.

Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

 

5.

The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

 

 

a.

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

 

 

b.

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

Date:  May 29, 2019

 

/s/ Randall W. White

Chairman of the Board, President and Chief Executive Officer

 

 

 

 

Exhibit 31.2

 

CERTIFICATION

 

I, Dan E. O’Keefe, certify that:

 

1.

I have reviewed this Annual Report on Form 10-K of Educational Development Corporation;

 

2.

Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.

Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.

The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

 

a.

Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

 

b.

Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

 

c.

Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

 

d.

Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

 

5.

The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

 

 

a.

All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

 

 

b.

Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

Date:  May 29, 2019

 

/s/ Dan E. O’Keefe

Chief Financial Officer and Corporate Secretary

(Principal Financial and Accounting Officer)

 

 

 

 

 

Exhibit 32.1

 

Certification Pursuant to 18 U.S.C. Section 1350,

as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

 

In connection with the Annual Report of Educational Development Corporation (the “Company”) on Form 10-K for the period ending February 28, 2019, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

(1) The Report fully complies with the requirements of Section 13 (a) or 15 (d) of the Securities Exchange Act of 1934; and

(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

Date:    May 29, 2019

By       /s/ Randall W. White                               

 

Randall W. White

President and Chief Executive Officer

(Principal Executive Officer)

 

 

Date:    May 29, 2019         

By       /s/ Dan E. O’Keefe                                   

 

Dan E. O’Keefe

Chief Financial Officer and Corporate Secretary

(Principal Financial and Accounting Officer)

 

A signed original of this written statement required by Section 906 has been provided to, and will be retained by, the Company and furnished to the Securities and Exchange Commission or its staff upon request.