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Exhibit 4.1
CREDIT AND SECURITY AGREEMENT
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This Credit and Security Agreement dated as of the 15th day of May,
1998, by and between COHESANT TECHNOLOGIES INC., a Delaware corporation
(hereinafter referred to as "Borrower"), and NBD BANK, N.A., a national banking
association (hereinafter referred to as "Bank").
W I T N E S S E T H :
WHEREAS, the Borrower desires to obtain certain financial
accommodations from the Bank up to the maximum original aggregate principal
amount of Three Million Five Hundred Thousand and No/100 Dollars
($3,500,000.00); and
WHEREAS, the Bank is willing to provide such financial accommodations
to the Borrower on the terms and subject to the conditions in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter contained, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS. When used herein, the capitalized terms defined
in the recitals above shall have the meanings therein stated and the following
capitalized terms shall have the meanings ascribed to them below. Other terms
used but not otherwise defined herein shall have the meaning ascribed to such
terms by the Uniform Commercial Code in effect in Indiana from time to time and
GAAP, as the context may require, unless the context expressly provides
otherwise.
1.1 "ACCOUNT DEBTOR" means the party who is obligated on or under any
Receivable or Contract Right.
1.2 "AGREEMENT" means this Credit and Security Agreement between the
Borrower and the Bank including all exhibits hereto and the executed originals
thereof, as the same may be amended from time to time.
1.3 "APPLICABLE SPREAD" means that number of Basis Points taken into
account in determining the per annum rate at which interest will accrue on the
Loans, determined by reference to the ratio of Total Liabilities to Tangible Net
Worth in accordance with the following table:
Tier Ratio of Total Liabilities
to Tangible Net Worth Applicable Spread
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1 Less than or equal to 1.50:1.00 0.0
2 Greater than 1.50:1.00 but less than 2.00:1.00 25.0
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Initially, the Applicable Spread shall be the spread shown on the above table at
Tier 1. Thereafter, the Applicable Spread shall be determined on the basis of
the financial statements of the Borrower for each fiscal quarter furnished to
the Bank pursuant to the requirements of Section 7.2. Interest will accrue and
be payable in any fiscal quarter on the basis of the Applicable Spread in effect
during the preceding fiscal quarter until an adjustment is made under the
provisions of this definition. The Applicable Spread shall be adjusted on the
first interest payment date which follows receipt by the Bank of the financial
statements upon which such adjustment is based. In the event that the Borrower
fails to deliver the financial statements and compliance certificates required
under Section 7.2 for any month which ends a fiscal quarter, then the Applicable
Spread shall be the largest spread shown on the above table from the date such
financial statements were required to be delivered until the first interest
payment date which follows delivery to the Bank of such financial statements.
1.4 [Reserved]
1.5 "BANKING DAY" means a day which is not (a) Saturday, Sunday or
legal holiday on which banking institutions in the State of Indiana or the city
in which the office of the Bank is located is authorized to remain closed, or
(b) a day on which the New York Stock Exchange is closed.
1.6 "BANKRUPTCY CODE" means the Federal Bankruptcy Code of 1978, as
amended.
1.7 "BASIS POINT" means One One-Hundredth of One Percent (0.01%).
1.8 "BOARD" means the Board of Governors of the Federal Reserve System.
1.9 "BOOK VALUE" means the value disclosed in the most recent financial
statements required to be furnished to the Bank prepared in accordance with GAAP
on a consistent basis.
1.10 "BORROWING BASE" means an amount equal to the sum of Eighty
Percent (80%) of Eligible Receivables, PLUS Fifty Percent (50%) of Eligible
Inventory, PLUS Fifteen Percent (15%) of the net book value of Eligible
Machinery and Equipment, as disclosed on the most recent Borrowing Base
Certificate furnished to the Bank pursuant to the requirements of this
Agreement.
1.11 "BORROWING BASE CERTIFICATE" means the certificate required by
Section 7.2.1 hereof, in the form and substance of EXHIBIT 1.11 hereto.
1.12 "COVERAGE RATIO" means EBITDA less unfunded capital expenditures
less dividends DIVIDED by principal reductions and interest payments.
1.13 "CERTIFICATE OF NO DEFAULT" means that certificate required by
Section 7.2.5 hereof, in the form and substance of EXHIBIT 1.13 hereto.
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1.14 "CLOSING DATE" means the date upon which the conditions set forth
in Section 6 hereof are satisfied and the financial accommodations referenced in
this Agreement are consummated.
1.15 "CODE" means the Internal Revenue Code of 1986, as amended.
1.16 "COLLATERAL" means all of Borrower's interest in personal property
of every kind and nature including all Receivables, Contract Rights, Inventory,
Machinery and Equipment, Proprietary Rights, General Intangibles, chattel paper,
documents and instruments and shall also include, without limitation, (i) all
attachments, accessions and equipment now owned or hereafter affixed to any of
the Collateral or used in connection therewith, substitutions and replacements
thereof, (ii) all items of Collateral now owned or existing and hereafter
acquired, created or arising, and all products and proceeds thereof (including
without limitation claims of the Borrower against third parties for loss or
damage to or destruction of any Collateral and all insurance proceeds) and any
substitution or replacement thereto, (iii) all monies, securities, drafts,
notes, items and other property of the Borrower, and the proceeds thereof, now
or hereafter held or received by or in transit to the Bank from or for the
Borrower, whether for safekeeping, custody, pledge, transmission, collection, or
otherwise, (iv) any and all deposits (general or special), balances, sums,
proceeds and credits of the Borrower with, any and all claims of the Borrower
against, the Bank, at any time existing, and (v) all labels and other devises,
names or marks affixed to or to be affixed to any of the Inventory for purposes
of selling or of identifying the same or the seller or manufacturer thereof and
all right, title and interest of the Borrower therein and thereto. The
Collateral shall also include any property described in any separate schedules
at any time or from time to time furnished by the Borrower to the Bank (all of
which shall be and hereby are deemed part of this Agreement) and shall also
include without limitation all other Collateral now or hereafter pledged,
assigned, hypothecated or transferred to the Bank.
1.17 "CONTRACT RIGHTS" means any right of the Borrower to payment under
a contract for the sale or lease of goods or the rendering of services, which
right is at the time not yet earned by performance.
1.18 "CURRENT RATIO" means on a consolidated basis the ratio of
Borrower's current assets to its current liabilities, as such terms are defined
under GAAP.
1.19 "EBITDA" means net income of the Borrower for any accounting
period plus interest, depreciation and amortization expense for such accounting
period.
1.20 "ELIGIBLE MACHINERY AND EQUIPMENT" means the combined net book
value of Machinery and Equipment of the Borrower and the Guarantors which is
used in the ordinary course of business of Borrower and Guarantors and in which
the Bank has a perfected first priority security interest, including, without
limitation, all tools, accessories, parts, machinery, equipment, trucks,
tractors, trailers and other rolling stock, furniture, office equipment,
leasehold
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improvements, fixtures, trade fixtures and accessions and accessories thereto
currently used in the Borrower's and the Guarantors' operations.
1.21 "ELIGIBLE INVENTORY" means the combined Inventory as reflected on
each of the Borrower's and the Guarantors' financial statements in the form of
raw materials suitable for incorporation and utilization in manufacturing which
is in acceptable quantities, grades and specifications, and finished goods which
are not obsolete, are saleable in the ordinary course of the respective
Borrower's and Guarantors' businesses and are merchantable, and otherwise in
which the Bank as a perfected first priority security interest and which the
Bank in its exclusive judgment deems to be Eligible Inventory based on such
credit and collateral considerations as the Bank may deem appropriate.
1.22 "ELIGIBLE RECEIVABLES" means the combined Receivables of the
Borrower and the Guarantors which are due and payable within Ninety (90) days
from the invoice date (assuming net 30 terms), have been validly assigned to
Bank and in which Bank has a first priority security interest and strictly
comply with all of Borrower's warranties and representations to Bank; but
Eligible Receivables will not include the following: (a) Receivables with
respect to which the Account Debtor is a shareholder, officer, employee or agent
of Borrower or either Guarantor, or a corporation more than Five Percent (5%) of
the stock of which is owned by any of such persons; (b) Receivables with respect
to which the Account Debtor is not a resident of the United States unless
supported/confirmed by a Letter of Credit in form or otherwise insured in a
manner acceptable to the Bank; (c) Receivables with respect to which the Account
Debtor is a subsidiary of, related to, affiliated or has common officers or
directors with Borrower or either Guarantor; (d) any Receivables which may be
subject to any claim of reduction, counterclaim, setoff, recoupment or any
claims for credits, allowances, or adjustments by the Account Debtor because of
returned, inferior or damaged inventory or unsatisfactory services; (e) any
Receivables owed by the U.S. Government, or a department or agency thereof, not
properly assigned to the Bank; (f) any Receivables not billed or invoiced under
usual and customary trade credit terms; (g) any and all Receivables owed by a
particular Account Debtor when Fifty Percent (50%) or more of the total
Receivables of such Account Debtor are more than Ninety (90) days old from the
invoice date; and (h) any Receivables owed by an Account Debtor who does not
meet Bank's standards of credit worthiness in Bank's sole credit judgment
exercised in good faith.
1.23 "ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
1.24 "EVENT OF DEFAULT" means the occurrence of any event specified in
Section 9 hereof.
1.25 "GAAP" means generally accepted accounting principles, in effect
from time to time.
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1.26 "GENERAL INTANGIBLES" means all present and future general
intangibles (including choses or things in action), goodwill, blueprints,
drawings, purchase orders, customer lists, monies due or recoverable from
pension funds, route lists, infringement claims, computer programs, computer
disks, computer software, computer tapes, literature, reports, catalogs, deposit
accounts, insurance premium rebates, tax refunds, tax refund claims and
insurance proceeds, together with all proceeds and products thereof.
1.27 "GLAS-CRAFT" means Glas-Craft, Inc., an Indiana corporation.
1.28 "GUARANTORS" mean individually and collectively Glas-Craft and
Raven, as appropriate.
1.29 "GUARANTY" means the Unconditional Unlimited Continuing Guaranty
dated as of the Closing Date executed and delivered to the Bank by each
Guarantor providing for an unlimited guaranty of repayment of the Loans.
1.30 "INVENTORY" means the combined goods, merchandise and other
personal property of the Borrower and the Guarantors, now owned or existing or
hereafter acquired, created or arising, which are held for sale or lease or are
furnished or to be furnished under a contract of service or supply or are raw
materials, work-in-process, finished goods, or materials used or to be used in
the Borrower's business.
1.31 "LETTERS OF CREDIT" means the standby letters of credit issued by
the Bank for the account of the Borrower as contemplated in Section 2.2 hereof.
1.32 "LINE OF CREDIT" means the revolving line of credit extended to
the Borrower by the Bank, pursuant to the terms and conditions of Section 2.1
hereof, including all renewals and extensions thereof.
1.33 "LINE OF CREDIT LOAN" means any advance, and in the plural all
advances, made to the Borrower from time to time under the Line of Credit.
1.34 "LINE OF CREDIT NOTE" means the Revolving Line of Credit Note from
the Borrower to the Bank described in Section 2.1.1 hereof, including all
renewals and extensions thereof evidencing the Line of Credit Loans.
1.35 "LOAN DOCUMENTS" means this Agreement, the Note, the Guaranty and
such other documents, instruments, certificates, statements or other writings
contemplated by or delivered or to be delivered in connection with this
Agreement.
1.36 "LOANS" means all Line of Credit Loans, including all renewals,
modifications, amendments and extensions thereof.
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1.37 "MACHINERY AND EQUIPMENT" shall mean all tools, accessories,
parts, machinery, equipment, trucks, trailers and other rolling stock,
furniture, office equipment, leasehold improvements, fixtures, trade fixtures
and accessions and accessories thereto wherever situated, and any substitution
or replacement of such property.
1.38 "NOTE" means the Line of Credit Note, including all renewals and
extensions thereof and amendments thereto evidencing the Loans.
1.39 "PLAN" means an employee pension benefit plan as defined in ERISA.
1.40 "PRIME RATE" means the fluctuating rate of interest which is
publicly announced from time to time by Bank at its principal place of business
as being its "prime rate" or "base rate" thereafter in effect, with each change
in the Prime Rate automatically, immediately and without notice changing the
fluctuating interest rate thereafter applicable hereunder, it being agreed that
the Prime Rate is not necessarily the lowest rate of interest then available
from Bank on fluctuating rate loans.
1.41 "PROPRIETARY RIGHTS" means all patent rights, patent applications,
franchise rights, trademarks, service marks, tradenames, corporate names,
copyrights, trade secrets and other proprietary rights and general intangibles
necessary to the conduct of the business of the Borrower as it is now conducted,
including all reissue applications, registrations, registration applications,
and corporate name authorizations applicable thereto.
1.42 "RAVEN" means Raven Lining Systems, Inc., a Missouri corporation.
1.43 "RECEIVABLES" means all accounts, account receivables, notes,
contract rights, contract receivables, contracts, instruments, documents, and
chattel paper, whether secured or unsecured which the Borrower owns or hereafter
acquires or in which it has or acquires an interest.
1.44 "TANGIBLE NET WORTH" means the Borrower's consolidated net worth
LESS intangible assets less advances due from affiliates.
1.45 "TOTAL LIABILITIES" means Borrower's total liabilities.
1.46 "UCC" means the Uniform Commercial Code as adopted and in force in
the State of Indiana from time to time.
1.47 "UNMATURED EVENT OF DEFAULT" means any event which, if it
continues uncured (other than obligations which have not matured), will with
lapse of time or notice, or both, constitute an Event of Default.
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SECTION 2. CREDIT FACILITIES.
2.1 LINE OF CREDIT. Subject to the further terms and qualifications
contained in this Agreement, so long as no Event of Default or Unmatured Event
of Default has occurred, the Bank shall lend to the Borrower and the Borrower
agrees to borrow from the Bank (and to repay to the Bank in accordance with the
terms hereof) from time to time an aggregate principal sum not to exceed at any
time outstanding the lesser of (i) Three Million Five Hundred Thousand and
No/100 Dollars ($3,500,000.00) or (ii) the Borrowing Base.
2.1.1 THE NOTE; METHOD OF BORROWING. The obligation of the Borrower
to repay the Line of Credit Loans shall be evidenced by the Line of
Credit Note which shall be repayable on or before May 1, 1999
("Maturity"). As long as no Event of Default or Unmatured Event of
Default shall have occurred and be continuing and until expiration
of the Line of Credit, upon acceleration or otherwise, the Borrower
may borrow, repay and re-borrow under the Line of Credit Note. Each
Line of Credit Loan which the Bank determines to make to the
Borrower will be credited to Borrower's demand deposit account
maintained with the Bank, unless the Bank, in its sole discretion,
consents otherwise. The Bank, in its sole discretion, shall be
entitled to rely on any oral or telephonic communication requesting
an advance and/or providing disbursement instructions which shall
be received by it in good faith from anyone identifying himself as
a person authorized by certified borrowing resolutions delivered
from time to time to the Bank or from anyone reasonably believed by
the Bank to be an officer or agent of the Borrower otherwise
authorized to borrow funds from the Bank on behalf of the Borrower.
The Borrower shall, upon the Bank's request, immediately confirm in
writing to the Bank any such oral or telephonic communication. All
Line of Credit Loans by the Bank and payments by the Borrower shall
be recorded by the Bank on its books and records, and said books
and records shall be conclusive evidence of the total indebtedness
owed under the Line of Credit.
2.1.2 INTEREST. The Borrower agrees to pay interest on the unpaid
balance of the Line of Credit Note outstanding from time to time
from the date thereof until its maturity at a per annum rate equal
to the Prime Rate plus the Applicable Spread ("Prime Based Rate")
and after maturity, whether by acceleration or otherwise, at a per
annum rate equal to the Prime Based Rate plus Three Hundred (300)
Basis Points. These rates shall change from time to time effective
concurrently with a change in the Prime Rate. Interest shall be due
and payable commencing on June 1, 1998, and on the first day of
each month thereafter until maturity of the Line of Credit Note,
whether by acceleration or otherwise, and will be computed on the
basis of a 360-day year over the actual number of days elapsed. If
the Bank has not received accrued but unpaid interest as of the due
date thereof
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(after any applicable cure period), the Bank shall have the right
to disburse to itself the amount of such interest as of the date
thereof and to add such amount to the principal balance of the Line
of Credit.
2.1.3 REIMBURSEMENTS DUE TO PAYMENTS BY THE BANK. Any amounts which
the Bank is permitted to pay on behalf of the Borrower pursuant to
any of the Loan Documents and which in its sole discretion the Bank
elects to pay, plus any other amounts to which the Bank is entitled
to reimbursement from the Borrower, shall be invoiced to the
Borrower and shall be payable Five (5) days after the date of the
invoice. If not paid within such Five (5) days, such amounts shall
be charged to the Line of Credit. Thereupon, the available Line of
Credit shall be immediately reduced by a corresponding amount. Upon
being charged to the Line of Credit, these amounts shall be
considered to be principal and shall immediately begin to bear
interest at the same rate and shall be payable at the same times as
set forth in Section 2.1.2 hereof.
2.1.4 APPLICATION OF PAYMENTS. Any payments received from the
Borrower with respect to the Line of Credit Loan generally shall be
applied in the following order: (i) accrued interest, (ii) the
principal balance of the Line of Credit Loan, and (iii) any
expenses for which the Bank is entitled to reimbursement pursuant
to the terms of this Agreement or any of the Loan Documents.
2.1.5 MANDATORY REDUCTIONS. If at any time the aggregate principal
outstanding under the Line of Credit exceeds the lesser of Three
Million Five Hundred and No/100 Dollars ($3,500,000.00) or the
Borrowing Base, either as a result of a decrease in the value of
the Borrowing Base or otherwise, the Borrower shall immediately
repay to the Bank, without the necessity of notice or demand from
the Bank, an amount not less than such excess.
2.1.6 COLLECTION AND APPLICATION OF RECEIVABLES. After the
occurrence of an Event of Default, the Bank or its designee may
notify customers or Account Debtors at any time, and from time to
time, that the Receivables have been assigned to the Bank and of
the Bank's security interests therein, and may collect them
directly and charge the collection costs and expenses to the Line
of Credit.
2.2 STANDBY LETTERS OF CREDIT. The Borrower may apply to the Bank for
the issuance by the Bank of one or more Letters of Credit (individually a
"Letter of Credit" and collectively the "Letters of Credit"), the aggregate
maximum principal amount of such Letters of Credit not to exceed One Hundred
Thousand and No/100 Dollars ($100,000.00). Upon receipt by the Bank of a duly
executed application by the Borrower for a Letter of Credit on the Bank's
standard form therefor, the Bank will accept such applications and issue one or
more of its Letters of Credit, subject to availability under the Line of Credit.
The Borrower agrees to pay the Bank a fee of One Percent (1.0%) per annum for
the aggregate undrawn full amount of the Letters of
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Credit, which fee shall be paid on or prior to the issuance of a Letter of
Credit and thereafter on or before the renewal thereof. This fee shall be
additional consideration for the issuance of the Letter of Credit. The Borrower
shall not be entitled to, and agrees not to seek, any refund, credit or offset
for such fee whether or not any amounts are drawn under any of such Letters of
Credit. The terms and conditions of the Letters of Credit shall be governed by
Uniform Customs and Practice for Documentary Credits (1993 Revision)
International Chamber of Commerce Publication No. 500 and otherwise in
accordance with their terms. The terms and conditions of any obligations of the
Borrower pursuant to any such Letter of Credit shall be determined by the
application made by the Borrower as accepted by the Bank. The Borrower
acknowledges that the amount available under the Borrowing Base shall be reduced
by the sum of (i) aggregate undrawn face amount of any Letters of Credit plus
(ii) the aggregate of any amounts paid by the Bank pursuant to any Letter of
Credit.
SECTION 3. COMMITMENT FEE AND EXPENSES.
3.1 COMMITMENT FEES. The Borrower shall pay a commitment fee relating
to the Loans equal to Three Thousand Five Hundred and No/100 Dollars
($3,500.00), payable to the Bank upon execution of this Agreement. Such
commitment fee was earned upon the execution of this Agreement by the Borrower
and the Borrower shall not be entitled to any refund, in whole or in part, of
such fees for any reason.
3.2 EXPENSES. The Borrower shall pay all out-of-pocket expenses
associated with the preparation and negotiation of the Loan Documents and the
closing of the Loans, including without limitation, UCC search fees, filing
fees, recording fees, attorneys' fees (which attorneys' fees reimbursement
amount not to exceed Two Thousand and No/100 Dollars ($2,000.00) assuming normal
and customary closing preparation and further provided that such estimate shall
not be exceeded without prior written notice to Borrower), title search fees and
disbursements made by or for the benefit of the Bank with respect to the Loans.
SECTION 4. GRANT OF SECURITY INTEREST. In consideration of one or more
loans, advances, or other financial accommodations at any time before, at or
after the date hereof made or extended by the Bank (at the sole discretion of
the Bank in each instance) to or for the account of the Borrower, including
without limitation this Agreement and the Note, the Borrower hereby grants and
transfers to the Bank a continuing security interest in and a right of setoff
against, and the Borrower hereby assigns to the Bank, the Collateral, whether
currently owned or hereafter acquired, to secure the payment, performance and
observance of all indebtedness, obligations, liabilities, guaranties and
agreements of any kind of the Borrower to the Bank, now existing or hereafter
arising, direct or indirect (including without limitation any participation or
interest of the Bank in obligations of the Borrower to another), acquired
outright, conditionally or as collateral security from another, absolute or
contingent, joint or several, secured or unsecured, due or not, contractual or
tortious, liquidated or unliquidated, arising by operation of law or otherwise,
and of all agreements, documents and instruments evidencing any of the foregoing
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or under which any of the foregoing may have been issued, created, assumed or
guaranteed, including without limitation the Note.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. To induce
the Bank to make the Loans requested by the Borrower, and to provide the
financial accommodations to the Borrower contemplated by this Agreement, the
Borrower represents and warrants, upon which the Bank is entitled to rely and is
relying in entering into this Agreement, that:
5.1 EXISTENCE AND POWER OF CORPORATION. The Borrower is a corporation
duly incorporated, validly existing and in good standing under the laws of the
state of Delaware and is duly licensed or qualified to transact business in all
places where the character of its properties or the nature of its activities
make such licensing or qualification necessary. The Borrower has full corporate
power and legal right to carry on its business as now conducted, to own its
property, to execute and deliver this Agreement and the other Loan Documents, to
borrow hereunder and to perform and otherwise consummate the obligations
contemplated hereby and by the other Loan Documents.
5.2 CORPORATE AUTHORITY. The making and performance by the Borrower of
this Agreement, the Note, the Loans hereunder, and all other Loan Documents
imposing obligations on the Borrower, have been duly authorized by all requisite
corporate action of the Borrower and will not (i) violate or conflict with any
provisions of law or regulation or of any order, injunction, decree or writ of
any court or agency of government or of any provision of its Certificate of
Incorporation or By-Laws, (ii) result in the breach or violation of, or
constitute or result in, or with the passage of time or the giving of notice
would result in, a default or require any consent under, any indenture, lease,
instrument, arrangement, understanding or other agreement to which the Borrower
is a party or by which it or its properties may be bound or affected or (iii)
result in or require the creation or imposition of any mortgage, pledge, lien,
security interest or other charge or encumbrance upon or with respect to any
property now owned or hereafter acquired by the Borrower, except as provided
herein. This Agreement, the Note and the other Loan Documents when duly executed
and delivered, will constitute the valid, legal and binding obligations of the
Borrower, enforceable in accordance with their respective terms.
5.3 FINANCIAL CONDITION. The Borrower has no contingent liabilities,
material liabilities for taxes, unusual forward or long-term commitments outside
the ordinary course of business or material unrealized or anticipated losses
from any unfavorable commitments which are material with respect to the
financial condition, affairs, prospects or business of the Borrower except as
reflected or provided for in such financial statements. The financial statements
of Borrower contain no material misstatement and omit no material fact necessary
to make such financial statements not misleading; nor, at this time is Borrower
aware of any event which would have a material adverse impact on the financial
condition of Borrower.
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5.4 LITIGATION. There are no suits, investigations, or proceedings
(whether administrative, bankruptcy or otherwise) pending or, to the best of
Borrower's knowledge, threatened against or affecting the Borrower.
5.5 APPROVALS. No approvals, licenses, authorizations, consents,
filings, permits or registrations from or with any governmental authority,
department or agency are required for the making and performance by the Borrower
of this Agreement, the other Loan Documents, or the transactions contemplated
hereby or thereby. All approvals, licenses, authorizations, consents and
permits, if any, required by federal, state or local law, statute, ordinance,
rule or regulation for the conduct of Borrower's business have been obtained,
are valid and are in full force and effect with no protests, or threats thereof,
to the issuance or validity of any thereof having been filed with any
governmental office or having been received by the Borrower.
5.6 TAXES. The Borrower has filed all tax returns which the Borrower
was required to file as of the date hereof in all jurisdictions, whether
federal, state or local, and has paid all taxes that are due and payable,
including interest and penalties, if any.
5.7 LIENS. Other than as disclosed on EXHIBIT 5.7 hereto, as of the
Closing Date the Borrower will be the lawful owner, free and clear of all liens
and encumbrances, of all property in which it will grant a security interest to
the Bank in accordance with Section 4 hereof, there will be no financing
statements or lien instruments covering all or any portion of said property
which have been executed, recorded or filed, except those in favor of the Bank,
and the security interests granted to the Bank herein and pursuant to the
provisions hereof will be valid, perfected, and of first priority.
5.8 FULL DISCLOSURE. Any financial statements or projections delivered
to the Bank by Borrower do not nor do this Agreement and the Loan Documents made
or furnished by the Borrower to the Bank in connection with the financial
accommodations contemplated by this Agreement, contain any untrue statement of a
material fact or omit to state any facts necessary to make such statements not
misleading in light of the circumstances in which they are made.
5.9 REGULATION U. The Borrower is not engaged principally, nor as one
of its important activities, in the business of extending credit for the purpose
of purchasing or carrying margin stock within the meaning of Regulation U issued
by the Board. The proceeds of the Loans made pursuant to this Agreement will be
used by the Borrower only for the purposes set forth Section 5.13 of this
Agreement.
5.10 EMPLOYEE BENEFIT PLANS. Each Plan maintained by the Borrower is
described in EXHIBIT 5.10 to this Agreement is in compliance with ERISA, the
Code and all applicable rules and regulations adopted by regulatory authorities
pursuant thereto. The Borrower has filed all reports and returns required to be
filed by ERISA, the Code and such rules and regulations. Each Plan described in
EXHIBIT 5.10 is an individual account plan as defined in Section 3(34) of
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ERISA and, as such, is not subject to the minimum funding rules of ERISA or the
jurisdiction of the Pension Benefit Guaranty Corporation.
5.11 INVESTMENT COMPANY ACT. The Borrower is not an "investment
company" or a company controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
5.12 NATURE OF BUSINESS AND ASSETS. The Borrower is the holding company
for Raven and Glas-Craft, manufacturers and assemblers of spraying equipment,
coating materials and specialty grout and sealant products. The Borrower owns no
interest in any other corporation, partnership, joint venture or other business
enterprise. The location of Borrower's principal office, other business
locations and all of the Borrower's material tangible assets and records
(including without limitation, the Inventory) listed in EXHIBIT 5.12 hereto. In
the event that any Collateral will be attached to real estate, the description
of such real estate and the known owner of record of such real estate shall be
furnished to the Bank and appended to this Agreement as EXHIBIT 5.12-A. If any
of the Collateral is attached to such real estate prior to the perfection of the
security interests granted herein, the Borrower will, on demand, furnish the
Bank with a subordination, disclaimer or disclaimers, executed by all persons
having an interest in such real estate. Except for Cohesant of Missouri, Inc. (a
non-operating entity in the process of dissolution), Cohesant Exports, Inc.,
Raven and Glas-Craft, the Borrower has no subsidiaries, wholly-owned or
otherwise, or affiliates other than principal shareholders, officers and
directors. The Borrower uses no names (fictitious or otherwise), other than its
own in the operation and conduct of its business. The Borrower is not in
violation of any law, regulation, order, injunction, decree or writ relating to
or affecting the Borrower, its business, or the conduct thereof, including
without limitation, laws relating to securities, health and safety of employees,
environment and pollution control, pricing, sales and distribution of products
and exporting of goods and materials, collective bargaining rights, equal
opportunity in employment and advancement, political contributions or improper
payments the result of which would have a material adverse effect. The Borrower
is not in material default under any indenture, lease, instrument or other
agreement to which the Borrower is a party or by which it is bound.
5.13 USE OF PROCEEDS. The proceeds of the Note will be used by the
Borrower for the following purposes: (i) general corporate and working capital
purposes of Borrower; and (ii) to provide working capital for Glas-Craft and
Raven.
SECTION 6. CLOSING; SECURITY AND CONDITIONS OF LENDING. The closing of
the transactions contemplated by this Agreement ("Closing") shall take place at
the offices of Xxxxx XxXxxxx Xxxxxxxxx & Xxxxxxxx in Indianapolis, Indiana or at
such other location as the Bank and the Borrower may mutually agree upon. As
conditions precedent to the advancement of any funds pursuant to this Agreement,
the following matters shall have been completed to the Bank's satisfaction and
the Bank shall have received from the Borrower and the Borrower agrees to
furnish or cause to be furnished to the Bank the following in form and content
satisfactory to the Bank:
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6.1 THE NOTE AND AGREEMENT. The Note and this Agreement, each signed by
duly authorized officers of the Borrower.
6.2 APPLICATION FOR ADVANCE AND BORROWING BASE CERTIFICATE. An
Application for Advance and Borrowing Base Certificate, fully completed and
executed by duly authorized officers of the Borrower and each Guarantor.
6.3 GUARANTY. A Guaranty executed by each Guarantor granting to the
Bank an unconditional unlimited continuing guaranty to repay the debt of
Borrower to the Bank, as well as any and all obligations and liabilities of the
Borrower to the Bank.
6.4 SECURITY AGREEMENT. A Security Agreement executed by each Guarantor
securing Guarantor's obligations under the Guaranty to the Bank.
6.5 OFFICER'S CERTIFICATES. Officers' certificates with respect to the
Articles of Incorporation (or Certificate of Incorporation, where appropriate),
By-Laws, resolutions and incumbency of Borrower and each Guarantor, in form and
substance acceptable to the Bank.
6.6 CERTIFICATE OF EXISTENCE OF BORROWER. A certificate of good
standing issued by the Secretary of State of Delaware certifying that Borrower
is a corporation existing under the laws of the State of Delaware.
6.7 CERTIFICATE OF EXISTENCE OF GLAS-CRAFT. A certificate of existence
issued by the Secretary of State of Indiana certifying Glas-Craft is a
corporation existing under the laws of the State of Indiana.
6.8 CERTIFICATE OF GOOD STANDING OF RAVEN. A certificate of good
standing issued by the Secretary of State of Missouri certifying Raven is a
corporation existing under the laws of the State of Missouri.
6.9 EVIDENCE OF INSURANCE. Certified copies of insurance policies
evidencing insurance coverage as required to be maintained under Loan Documents
by the Borrower and the Guarantors and Lender's Loss Payee Endorsements in form
acceptable to the Bank, assigning the proceeds of such policies to the Bank to
secure repayment of the Loans, as well as any and all other obligations and
liabilities of the Borrower to the Bank.
6.10 OPINION OF COUNSEL. An opinion of counsel to Borrower and the
Guarantors in form and substance acceptable to the Bank.
6.11 FINANCING STATEMENTS. UCC-1 Financing Statements, in form and
substance acceptable to Bank, to be filed in the Indiana Secretary of State's
Office, Uniform Commercial
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Code Division, the Xxxxxx County, Indiana, Recorder's Office, and the Delaware
Secretary of State's office, the Missouri Secretary of State.
6.12 COMMITMENT FEE. Payment of the commitment fee and other
reimbursable expenses to the Bank pursuant to Section 3 hereof.
6.13 FINANCIAL STATEMENTS. Certain financial statements of Borrower,
Guarantor, American and Raven as requested in advance by the Bank.
6.14 TITLES. The original titles to all Machinery and Equipment, the
ownership of which is evidenced by a Certificate of Title, if any, to permit
Bank to reflect its lien thereon.
6.15 SUBSEQUENT ADVANCES. At the time of each advance under the Line of
Credit, no Event of Default or Unmatured Event of Default shall have occurred
and be continuing, and the representations and warranties contained in this
Agreement, including without limitation those in Section 5 hereof, shall be true
and correct as of the date of the advance except as previously disclosed in
writing to the Bank.
6.16 OTHER INFORMATION. Such other certificates, statements, documents
and information as the Bank may reasonably request in connection with this
Agreement.
SECTION 7. AFFIRMATIVE COVENANTS. Unless the Bank otherwise consents in
writing and until payment in full of the Loans and fulfillment of all other
obligations and liabilities of the Borrower to the Bank, the Borrower agrees as
follows:
7.1 PAYMENT OF LOANS. The Borrower agrees to repay the Loans in
accordance with the terms and conditions of this Agreement and the Note.
7.2 FINANCIAL STATEMENTS. The Borrower agrees that it shall furnish to
the Bank:
7.2.1 As soon as available and in no event later than Twenty (20)
days after the close of each of Borrower's fiscal quarterly period
of each fiscal year, a Receivables aging schedule and a Borrowing
Base Certificate, each as of the end of such period and certified
as accurate by the Borrower's duly authorized representative.
7.2.2 As soon as available and in no event later than Forty-Five
(45) days after the close of each of Borrower's fiscal quarterly
period, an internally prepared consolidated and consolidating
balance sheet and a statement of income, expenses and retained
earnings compiled as of the end of such period and on a year to
date basis prepared in accordance with GAAP and certified as
accurate by the Borrower's duly authorized representative, and with
such other financial information as the Bank may reasonably request
from time to time.
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7.2.3 As soon as available and in no event later than Ninety (90)
days following the close of each fiscal year of the Borrower, the
following: (a) consolidated financial statements of Borrower
prepared on a consistent basis, in accordance with GAAP and audited
by independent certified public accountants acceptable to the Bank;
and (b) supplemental, consolidating balance sheets, income
statements and retained earnings for the most recent period of
Borrower and each of Borrower's subsidiaries.
The supplemental consolidating data will be subjected
to auditing procedures performed by the independent public
accountants in connection with their audit of the consolidated
financial statements of Borrower. The independent public
accountants preparing such financial information will not be
engaged by Borrower or either Guarantor to express a separate
opinion associated with the financial statements of each subsidiary
of Borrower.
7.2.4 At the time of submission of each of the financial statements
requested by this Section 7.2, a Certificate of No Default in the
form of EXHIBIT 1.13 hereto, dated as of the date of submission.
7.2.5 Such other information as the Bank may reasonably request
from time to time.
7.3 ADVERSE CHANGES AND LITIGATION. The Borrower shall give notice in
writing to the Bank of (a) the occurrence of any Event of Default or Unmatured
Event of Default or of any other change or occurrence which could have a
material adverse effect on its financial condition or business, promptly but not
later than Ten (10) calendar days after occurrence; (b) all litigation or any
threat thereof and all proceedings and investigations or any threat thereof
before or by any governmental or regulatory agencies affecting the Borrower, any
of which, if adversely determined, may have a material adverse effect on the
financial condition or business of the Borrower, promptly but not later than
Five (5) days of service of process or other notification or threat of such
litigation and/or proceedings; and (c) the actual knowledge of the occurrence of
any facts which would cause the representations and warranties set forth in
Section 5 hereof to become untrue or materially misleading.
7.4 INSURANCE. The Borrower shall keep adequately insured in
appropriate amounts (but not less than the aggregate of the principal balance
plus accrued interest thereon outstanding from time to time under the Note and
under the Agreement, and, in any event, not less than REPLACEMENT VALUE of the
Collateral and in amounts sufficient to prevent the Borrower or the Bank from
becoming a co-insurer of any loss by financially sound and reputable insurers)
all property of a character usually insured by entities engaged in the same or
similar business, similarly situated, against loss or damage by fire, extended
coverage perils and business interruption, as well as such other risks and
liabilities customarily insured against by such businesses, and shall furnish
evidence thereof to the Bank. Each policy in respect to the
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insurance required by this Section 7.4 shall (a) bear a first lien holder
endorsement in favor of the Bank and in form and in substance satisfactory to
the Bank in its sole discretion, providing that any loss thereunder involving
the Collateral or the insured property shall be made payable to the Bank and the
Borrower, as their interests may appear, notwithstanding any failure by the
Borrower to pay any premium, fee of other amount with respect to such policy,
and (b) contain agreements by the insurer that it shall give to the Bank at
least Thirty (30) days prior written notice of cancellation and that any loss
thereunder in respect of the property shall be payable notwithstanding any
occupation or use for purposes more hazardous than permitted by the terms of
such policy, any breach of any warranty, representation or covenant contained in
such policy, any act or neglect of the Borrower, or any foreclosure or other
proceedings or notice of sale or of any change in title or ownership. Within
Thirty (30) days after written notice from Bank, Borrower shall obtain such
additional insurance as Bank may request.
7.5 DEBTS AND TAXES. The Borrower shall pay and discharge all current
obligations in a manner consistent with commercially reasonable practice,
including without limitation, trade accounts payable and all taxes, assessments,
and governmental charges and levies imposed upon it or upon its income or
profits or upon any of its property prior to the date on which penalties attach;
provided, however, the Borrower shall not be required to pay any such
obligation, tax, assessment, charge or levy, the payment of which is being
contested in good faith and by proper proceedings if a reserve is maintained
with respect thereto in accordance with GAAP and in amounts reasonably deemed
adequate by Bank.
7.6 EXISTENCE. The Borrower shall and shall cause each Guarantor to
preserve and maintain their respective corporate existence and good standing as
well as all of their rights, privileges, permits and licenses; shall conduct and
shall cause each Guarantor to conduct their respective businesses in an orderly
and efficient manner; and shall comply with all material requirements of
applicable laws, statutes, ordinances, rules and regulations.
7.7 ACCESS TO BOOKS AND INSPECTION. The Borrower shall keep proper
books of record and account for itself and shall give any representative of the
Bank access to, and permit him to examine, copy or make extracts from, any and
all of its books, records and documents, to inspect any of its properties and to
discuss its affairs, finances and accounts with any of its principal officers
and with the certified public accountant reviewing the financial statements
referred to in Section 7.2 hereof, all at such times and as often as may
reasonably be requested.
7.8 COMPLIANCE WITH ERISA. The Borrower shall at all times meet the
minimum funding and reporting requirements of ERISA with respect to any Plan of
the Borrower which is covered by ERISA, and shall deliver or cause to be
delivered to the Bank such information concerning the Borrower's compliance
therewith as the Bank may reasonably request. Immediately upon becoming aware of
the occurrence of any (a) "reportable event" (as such term is defined in Section
4043 of ERISA), or (b) "prohibited transaction" (as such term is defined in
Section 406 or described in Section 3003(a) of ERISA) in connection with any
such Plan, the Borrower shall give written notice to the Bank specifying the
nature thereof, what action the
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Borrower is taking or proposes to take with respect thereto, and when known, any
action taken by the Internal Revenue Service, the Department of Labor or the
Pension Benefit Guaranty Corporation with respect thereto.
7.9 REIMBURSEMENT OF EXPENSES AND INDEMNIFICATION. The Borrower shall
reimburse the Bank for all costs and expenses, including reasonable attorneys'
fees, incurred by the Bank in the collection of the Loans as well as all other
obligations and liabilities of the Borrower to the Bank as a result of the
occurrence of an Event of Default hereunder or in the pursuit of any remedy of
the Bank available to it under or pursuant to this Agreement or any of the other
Loan Documents. The Borrower shall not, however, be responsible for payment of
the costs and expenses relating to the Bank's field examination of the
Borrower's books and records. The Borrower shall at all times protect,
indemnify, defend and save harmless the Bank from and against any and all
claims, actions, suits and other legal proceedings, and liabilities, damages,
costs, interest, charges, filing fees and taxes, expenses relating to title,
stamp, mortgage or other taxes and liabilities for delays in paying them,
counsel fees and disbursements and other expenses and penalties of which the
Bank may at any time sustain or incur by reason of or in consequence of or
arising out of the execution and delivery of, the consummation of the
transactions contemplated by, or the amendment or modification of, or any waiver
or consent under or in respect of the Agreement or any of the Loan Documents
including without limitation the Note. The provisions of this Section 7.9 shall
survive the payment of the Note and the termination of the Agreement.
7.10 GRANT OF SECURITY INTERESTS. Except with respect to the liens
permitted in Section 5.7 hereof, the Borrower has granted to the Bank a first
priority security interest in and to the Collateral in which the Borrower has an
interest, pursuant to and under the terms of this Agreement, wheresoever
located, whether now owned or existing or hereafter acquired or arising, and all
proceeds thereof, which security interests shall continue in full force and
effect until all indebtedness, obligations and liabilities of the Borrower to
the Bank (whether arising out of the Agreement or any other Loan Documents or
otherwise and also including without limitation all future advances) shall have
been fully satisfied. The Borrower will take any and all steps requested by the
Bank to perfect, maintain and protect the Bank's security interest in any and
all such assets.
7.11 SECURITIES FILINGS OF BORROWER. The Borrower shall submit to the
Bank all financial reports and other materials filed with the Securities
Exchange Commission, if any, or any other similar governmental entity for
distribution to the shareholders of the Borrower.
7.12 FINANCIAL COVENANTS. During the term of this Agreement and while
any portion of the Loans or the other obligations of the Borrower are
outstanding, the Borrower shall comply, on a consolidated basis, with the
following financial covenants which shall be tested on the last day of each
fiscal quarter unless otherwise provided:
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7.12.1 CURRENT RATIO. Maintain a Current Ratio of not less than
1.50 to 1.00 at all times.
7.12.2 RATIO OF TOTAL LIABILITIES TO TANGIBLE NET WORTH. Maintain a
ratio of Total Liabilities to Tangible Net Worth at all times in an
amount not to exceed 2.00:1.00.
7.12.3 COVERAGE RATIO. Maintain a Coverage Ratio not less than 1.50
to 1.00 which shall be tested annually as of the end of Borrower's
fiscal year.
7.13 DEPOSITORY RELATIONSHIP. The Bank will be the principal depository
in which substantially all of the Borrower's funds are deposited, and the
principal bank account of the Borrower, as long as this Agreement is in effect
and the Loans are outstanding. Borrower will grant the Bank the first and last
opportunity to provide corporate banking services required by the Borrower,
including, without limitation, payroll and cash management.
7.14 FURTHER ASSURANCES. The Borrower shall, at its cost and expense,
upon reasonable request of the Bank, duly execute and deliver, or cause to be
duly executed and delivered to the Bank, such further instruments and to do and
cause to be done such further acts as may be necessary or proper in the opinion
of the Bank to carry out more effectually the provisions and purposes of this
Agreement.
SECTION 8. NEGATIVE COVENANTS. Unless the Bank otherwise consents in
writing, until payment or performance in full of the Note and all other
obligations and liabilities of the Borrower to the Bank, the Borrower agrees as
follows:
8.1 LIENS. The Borrower shall not mortgage or otherwise encumber any of
its assets to anyone other than the Bank without the Bank's prior written
consent except:
8.1.1 Those liens required by this Agreement;
8.1.2 Liens, pledges or deposits for workmen's compensation,
unemployment insurance, old age benefits or social security
obligations, statutory obligations or other similar charges, liens
for current taxes or assessments not yet due or which are payable
without penalty or the validity of which is being contested in good
faith and by appropriate proceedings upon stay of execution of the
requirement thereof and a reserve is maintained with respect
thereto in accordance with GAAP and in amounts deemed reasonably
adequate by the Bank, or deposits required to be made in the
ordinary course of business;
8.1.3 The pledge of assets for the purpose of securing an appeal or
stay or discharge in the course of any legal proceeding, or liens
for judgments or awards in respect of which the Borrower shall be
prosecuting an appeal or proceeding for
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review in good faith so long as execution is not levied thereunder
and provided that an adequate reserve in accordance with GAAP for
the payment of such judgments or awards is maintained;
8.1.4 Purchase money security interests granted to secure not more
than seventy-five percent (75%) of the purchase price of assets
acquired by the Borrower; or
8.1.5 Those liens described on attached EXHIBIT 5.7.
8.2 SALE OF ASSETS; CONSOLIDATION; MERGER; DIVIDENDS; CAPITAL
STRUCTURE. The Borrower shall not:
8.2.1 Make any material change in the nature of its business, or
sell, lease, transfer, exchange, or otherwise dispose of all or a
substantial part of its properties and/or assets to any person,
firm, corporation or other entity except for sales of assets in the
ordinary course of business; or
8.2.2 Consolidate with, merge into, acquire or otherwise combine
with any other corporation or other business entity or division.
8.3 LOANS AND INVESTMENTS. The Borrower shall not make or permit to
exist any loans or advances to or investments in any person, firm, corporation
or other entity except:
8.3.1 loans to Guarantors, which shall be used by Guarantors to
finance their respective working capital needs.
8.3.2 Investments in direct obligations of the United States
Government maturing within one year of acquisition thereof;
8.3.3 Investments in certificates of deposit or savings accounts of
a bank (other than the Bank), with a maturity of no more than one
year and in amounts of not more than $100,000 in any such bank, and
with respect to the Bank, with any maturity and in any amounts;
8.3.4 Investments in money market funds, commercial paper of
corporations rated A-1 by Standard and Poor's Corporation or P-1 by
Xxxxx'x Investors Service, Inc. or of any affiliate of the Bank,
and in obligations insured directly or indirectly by the government
of the United States; or
8.3.5 Deferred payments by customers of the Borrower.
8.3.6 Loans and investments described on EXHIBIT 8.3.6 attached.
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8.4 FISCAL YEAR. The Borrower shall not change its fiscal year.
8.5 MANAGEMENT. The Borrower shall not permit any material change in
its day-to-day executive management personnel to occur or to allow any material
change in the equity ownership of the Borrower.
8.6 INDEBTEDNESS. The Borrower shall not become liable, directly or
indirectly, as guarantor or otherwise for any obligation except for the
endorsement of commercial paper for deposit or collection in the ordinary course
of business; further, Borrower will not incur, create, assume or permit to exist
any indebtedness except: (a) the Loans; (b) existing indebtedness as shown on
the Borrower's current financial statements to be permitted to exist after the
Closing; and (c) trade indebtedness incurred in the ordinary course of business.
Further, Borrower shall not become a party to any lease or incur any contingent
liability in an amount greater than One Hundred Thousand and No/100 Dollars
($100,000.00) without the Bank's prior written consent.
SECTION 9. EVENTS OF DEFAULT. The occurrence of any one or more of the
following events shall be deemed a default of this Agreement:
9.1 DEFAULT IN PAYMENT. The Borrower shall fail to pay any part or all
of the principal or interest required by this Agreement and the Note within five
(5) days after becoming due and payable.
9.2 INSOLVENCY; JUDGMENTS. Any proceedings shall be commenced in a
court of competent jurisdiction by or against the Borrower seeking an order (i)
for relief under the Bankruptcy Code or establishing the insolvency of the
Borrower, (ii) appointing a trustee, receiver or other custodian of the Borrower
or of any substantial part of Borrower's property, or (iii) approving or
effecting an arrangement for the liquidation, dissolution, winding up or
reorganization of the Borrower pursuant to the Bankruptcy Code, or any other law
for the relief of debtors, or seeking judicial modification or alteration of the
rights of the Bank hereunder or under the Note; and any such proceedings
described in clauses (i), (ii), or (iii) shall not be dismissed, any such
receiver, trustee or other custodian shall not be discharged, or jurisdiction of
the court shall not be relinquished or vacated or stayed on appeal or otherwise
within Thirty (30) days from commencement of any such proceedings or the
Borrower shall (iv) file any petition, commence any proceedings or take or
consent to any other action seeking any such judicial order described in clauses
(i), (ii) or (iii) preceding, or (v) make an assignment for the benefit of its
creditors, or (vi) become insolvent, or admit in writing the inability to pay
its debts and obligations, as they become due, or (vii) have failed within,
Thirty (30) days to pay or otherwise discharge any one or more judgments or
attachments against it exceeding Ten Thousand and No/100 Dollars ($10,000.00) in
the aggregate, except those that are being contested in good faith and
enforcement or execution of which has been stayed and for which adequate
reservation accordance with GAAP for the payment thereof are maintained.
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9.3 MISREPRESENTATION. Any representation or warranty made by the
Borrower in this Agreement or in any financial statements, instruments,
agreements, certificates or reports furnished to the Bank in connection herewith
proves to be untrue or misleading in any material respect as of the date it is
made or deemed to have been made.
9.4 OTHER DEFAULTS. The Borrower shall default in the performance of
any covenant, obligation or agreement contained herein or in any of the other
Loan Documents, which default, other than the defaults set forth in Section 9.1
hereof or violation of the negative covenants set forth in Section 8 hereof, if
subject to cure, shall remain uncured for Thirty (30) days after the occurrence
thereof.
9.5 DEFAULT OF OTHER OBLIGATIONS. The Borrower shall fail to pay any
material indebtedness to or perform any other obligation under any material
agreement to any other firm, party or person, and such failure shall continue
beyond any applicable grace period and result in the acceleration of such
indebtedness or obligation or the Borrower shall suffer to exist beyond any
applicable grace period any other event of default under any material agreement
binding upon the Borrower unless such event of default has been waived in
writing by the appropriate party or parties to such agreement.
9.6 ADVERSITY OF GUARANTOR. The bankruptcy of either Guarantor, the
revocation of the repayment and performance guaranty by either Guarantor or the
occurrence of any other event adversely affecting the financial capabilities of
either Guarantor.
9.7 ADVERSE CHANGES. Any material adverse change in the Borrower's
business, financial condition or management, as determined by the Bank its sole
and exclusive discretion.
9.8 LOSS OF COLLATERAL. The loss, theft, substantial damage to or
destruction of any Collateral for which there is either no insurance coverage or
for which, in the sole and exclusive opinion of the Bank, there is insufficient
coverage, or the making or filing of any lien, except permitted liens, levy, or
execution on, or seizure, attachment or garnishment of, any Collateral.
9.9 INVALIDITY OF LOAN DOCUMENTS. Any material provision of any of the
Loan Documents shall at any time and for any reason cease to be valid and
binding upon the Borrower, or shall be declared to be null and void, or the
validity or enforceability thereof shall be contested by the Borrower, or
proceedings shall be commenced by any governmental agency or authority having
jurisdiction over the Borrower seeking to establish the invalidity or
unenforceability thereof, or the Borrower shall improperly deny that it has any
or further liability or obligation under this Agreement or the Loan Documents.
SECTION 10. RIGHTS ON DEFAULT. Upon the occurrence of an Event of
Default and at any time thereafter (said Event of Default not having previously
been cured), the Bank shall have the remedies of a secured party under the
Uniform Commercial Code as amended and in effect in Indiana from time to time.
In its sole discretion, Bank may, after an Event of Default has occurred,
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in its name or the Borrower's or otherwise, (i) notify any Account Debtor or
obligor of any Receivable, contract, document, instrument, chattel paper or
general intangible included in the Collateral to make payment directly to the
Bank at such address as the Bank may direct, (ii) demand, xxx for, collect or
receive any money or property at any time payable or receivable on account of,
or in exchange for, or make any compromise or settlement deemed desirable by the
Bank with respect to, any Collateral, and/or extend the time of payment, arrange
for payment in installments, or otherwise modify the terms of, or release, any
Collateral or obligations of the Borrower to the Bank, all without notice to or
consent by the Borrower and without otherwise discharging or affecting the
Collateral or the security interest granted herein, and/or (iii) pay any amount
or do any act required of the Borrower hereunder and which the Borrower fails to
do or pay, with any such payment being deemed an advance by the Bank to the
Borrower payable on demand together with the interest at the highest rate then
payable on the Note. Upon the occurrence of an Event of Default, the Borrower at
its expense shall make the Collateral, and any documentation relating thereto,
available to the Bank at a place and time designated by the Bank which is
reasonably convenient to the Borrower. The Bank may at any time and from time to
time, with or without judicial process or the aid and the assistance of others
enter upon any premises in which or on which any Collateral may be located, and
without resistance or interference by the Borrower's or any person acting for,
and on behalf of, or under the rights of the Borrower, take possession of the
Collateral and/or dispose of any Collateral on any such premises, and/or remove
any Collateral from any such premises for the purpose of effecting sale or other
disposition thereof (and if any of the Collateral consists of motor vehicles the
Bank may use the Borrower's license plates), and/or sell, resell, lease, assign
and deliver, grant options for or otherwise dispose of any Collateral in its
then condition or following any commercially reasonable preparation or
processing, at public or private sale or proceedings or otherwise, by one or
more contracts, in one or more parcel or lots, at the same or different times,
with or without having the Collateral at the place of sale or other disposition,
for cash and/or credit, and upon such terms, at such places and times and to
such persons as the Bank in its discretion deems best, all without demand,
notice or advertisement whatsoever, except as may be required by law. If any
Collateral is sold by the Bank upon credit or for future delivery, the Bank
shall not be liable for the failure of the purchaser to pay for any such
Collateral and in such event the Bank may resell such Collateral. If any
notification of disposition of all or any portion of the Collateral is required
by law, such notification shall be deemed reasonably and properly given if
mailed as provided in Section 13.11 of this Agreement at least Five (5) business
days prior to such disposition, postage prepaid, to the Borrower at its latest
address appearing on the records of the Bank. Borrower agrees that it shall not
be entitled to relief from valuation and appraisement laws, and Borrower waives
any and all rights thereto. Any cash proceeds of any disposition of the
Collateral actually received by the Bank may be applied by the Bank to the
payment of the expenses of retaking, holding, preparing for sale and selling,
which shall include reasonable attorneys' fees and legal expenses and
disbursements and any balance of such proceeds shall be applied by the Bank
toward the payment of the obligations to the Bank. The surplus, if any, shall be
paid to the Borrower, subject to any duty of the Bank imposed by law to the
holder of any subordinate security interest in the Collateral known to the Bank.
The Bank shall have a duty to account to Borrower only if a surplus remains
after liquidation of the Collateral and application of the proceeds thereof as
described above and as provided in the Uniform Commercial Code as it is in
effect from time to time
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in Indiana. The Bank may appropriate, set off and apply to the payment of the
obligations, any Collateral in, or coming into, the possession of the Bank or
any of its affiliates or agents, without notice to the Borrower and in such
manner as the Bank may in its discretion determine.
SECTION 11. SET OFF. If any Event of Default occurs hereunder, any
indebtedness from the Bank to the Borrower may be set off and applied toward the
payment of the Note and/or any other liability of the Borrower to the Bank,
whether or not the Note or other liability, or any part thereof, shall then be
due.
SECTION 12. [RESERVED]
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SECTION 13. GENERAL PROVISIONS.
13.1 RIGHTS AND REMEDIES OF BANK. No delay or omission of the Bank to
exercise any right or power hereunder shall impair such right or power or be
construed as a waiver of any default or as acquiescence therein; and any single
or partial exercise of any such right or power shall not preclude other or
further exercise thereof or the exercise of any other right or power; and no
waiver shall be valid unless in writing signed by the Bank, and then only to the
extent specifically set forth in such writing. All rights and remedies hereunder
and under any of the other Loan Documents or by law afforded shall be cumulative
and all shall be available to the Bank until the Note and all other liabilities
of the Borrower to the Bank have been paid in full and all obligations of the
Borrower to the Bank have been satisfied.
13.2 APPOINTMENT. To effectuate the terms and provisions hereof, the
Borrower hereby designates and appoints the Bank and each of its designees or
agents as attorney in fact of the Borrower, irrevocably and with power of
substitution, with authority upon the occurrence of an Event of Default, to:
receive, open and dispose of all mail addressed to the Borrower and notify the
Post Office authorities to change the address for delivery of mail addressed to
the Borrower to such address as the Bank may designate, endorse the name of the
Borrower on any notes, acceptances, checks, drafts, money orders, instruments or
other evidences of Collateral that may come into the Bank's possession, sign the
name of the Borrower on any invoices, documents, drafts against or notices to
Account Debtors or obligors of the Borrower, assignments and requests for
verification of accounts, execute proofs of claim and loss, endorsements,
assignments or other instruments of conveyance or transfer, adjust and
compromise any claims under insurance policies or otherwise, execute releases,
and do all other acts and things necessary or advisable in the sole and
exclusive discretion of the Bank to carry out and enforce this Agreement, or the
Borrower's obligations to the Bank. All acts done under the foregoing
authorization are hereby ratified and approved and neither the Bank nor any
designee or agent thereof shall be liable for any acts of commission or
omission, for any error of judgment or for any mistake of fact or law unless
such action is taken by the Bank in wilful disregard of the Borrower's rights
under this Agreement or for any act or omission involving gross negligence. This
power of attorney being coupled with an interest is irrevocable while any
indebtedness shall remain unpaid.
13.3 FINANCING STATEMENTS; ADDITIONAL DOCUMENTS. The Borrower
authorizes the Bank to execute and file one or more financing statements, this
Agreement and any other documents, instruments or statements of any kind on its
behalf and without the signature of the Borrower in those public offices deemed
necessary by the Bank in its sole discretion to perfect and continue the
perfection of its security interest in the Collateral and to protect, defend and
further assure the grant, validity and perfection thereof. In addition, the
Borrower will, at its expense deliver or cause to be delivered such other
documents, as the Bank may request to secure payment of the indebtedness
referred to herein or to further perfect, protect and defend the security
interest granted herein, including, without limitation, any certificate or
certificates of title to the Collateral with the security interest of the Bank
noted thereon.
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13.4 LITIGATION. In the event of any litigation with respect to any
matter connected with this Agreement, the Borrower's obligations to the Bank or
the Collateral, Borrower hereby irrevocably consents to the jurisdiction of the
Courts of the State of Indiana and of any Federal Court located in such State in
connection with any action or proceeding arising out of or relating to such
obligations, this Agreement, the Loan Documents or the Collateral. Borrower
hereby waives personal service of any process in connection with any such action
or proceeding and agrees that the service thereof may be made by certified or
registered mail directed to Borrower at any address of Borrower set forth in
this Agreement or appearing on the books and records of the Bank. Borrower so
served shall appear or answer to such process within Thirty (30) days after the
mailing thereof. Should Borrower so served fail to appear or answer within said
Thirty (30) day period, Borrower shall be deemed in default and judgment may be
entered by Bank against Borrower for the amount or such other relief as may be
demanded in any process so served. In the alternative, in its sole discretion,
the Bank may effect service upon Borrower in any other form or manner permitted
by law.
13.5 WAIVER OF VARIOUS RIGHTS. The Borrower hereby waives all rights of
valuation and appraisement in connection with or arising out of any of the Loan
Documents including without limitation this Agreement and the Note, or the
validity, protection, interpretation, collection or enforcement thereof or any
other claim or dispute howsoever arising between the Borrower and the Bank. The
Borrower waives acceptance or notice of acceptance hereof and agrees that the
Agreement, the Note, and all of the other Loan Documents shall be fully valid,
binding, effective, and enforceable as of the date hereof even though this
Agreement and any one or more of the other Loan Documents which require the
signature of the Bank, may be executed by or on behalf of the Bank on other than
the date hereof. The Borrower waives notice of presentment, notice of dishonor,
demand, protest of all instruments included in or evidencing the Borrower's
obligations to the Bank or Collateral. Borrower further waives any right to
require the Bank to xxxxxxxx any assets in favor of the Borrower, any other
creditor of the Borrower or any other person claiming any rights by or through
the Borrower to any of the Collateral in which the Bank has a security interest.
THE BANK AND THE BORROWER HEREBY WAIVE THE RIGHT OF TRIAL BY JURY OF ANY MATTERS
ARISING OUT OF THIS AGREEMENT, THE LOAN DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY.
13.6 BANK'S RESPONSIBILITIES. Beyond the exercise of reasonable care to
assure the safe custody of the Collateral while held hereunder, the Bank shall
have no duty or liability to preserve rights pertaining thereto, and shall be
relieved of all responsibility for the Collateral upon surrendering it to the
Borrower or Borrower's designee.
13.7 SURVIVAL. All representations, warranties, and covenants of the
Borrower herein or in any certificate, agreement or other instrument delivered
by it or on its behalf under this Agreement shall be considered to have been
relied upon by the Bank and shall survive the making of Loans and delivery to
the Bank of the Note. All statements in any such certificate or other instrument
shall constitute warranties and representations hereunder by the Borrower, as
the case may be.
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13.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the Borrower and the Bank and their respective
successors and assigns; provided, however, that the Borrower may not assign
(whether by operation of law or otherwise) its rights hereunder without the
prior written consent of the Bank. The provisions of this Agreement are intended
to be for the benefit of any holder, from time to time, of the Note and shall be
enforceable by such holder, whether or not an express assignment to such holder
of rights under this Agreement has been made by the Bank, its successors or
assigns.
13.9 GOVERNING LAW; SEVERABILITY. This Agreement and the other Loan
Documents have been or are being executed and delivered and are intended to be
performed in the State of Indiana and shall be governed, construed and enforced
in all respects in accordance with the laws of the State of Indiana. Whenever
possible, each provision of this Agreement or any related agreement or
instrument shall be interpreted in such manner as to be effective and valid
under applicable law, but if any such provision shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this or any related agreement or
instrument.
13.10 HEADINGS; EXHIBITS. The section headings used herein are for
convenience only and shall not be read or construed as limiting the substance or
generality of this Agreement. All agreements and instruments attached hereto as
exhibits and referred to herein, including the executed originals thereof, shall
be deemed a part of the Agreement.
13.11 NOTICES. Any notice, request, demand, waiver, consent, approval
or other communications which is required or permitted hereunder shall be in
writing and shall be deemed given only if delivered personally or by a reputable
courier service of national standing (with all expenses of delivery being
prepaid) or sent by telegram, facsimile transmission (with confirming hard copy
by first class mail sent within twenty-four (24) hours of such transmission) or
by registered or certified mail, postage prepaid, as follows:
If to Bank: NBD Bank, N.A.
One Xxxxxxx Xxxxxx
Xxxx Xxxxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telecopy: (000) 000-0000
With a required copy to: Xxxxx XxXxxxx Xxxxxxxxx & Xxxxxxxx
(which shall not One Indiana Square, Suite 2800
constitute notice) to: Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
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If to Borrower: Cohesant Technologies Inc.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
With a required copy Xxxxxxx X. Xxxxx, Esq.
(which shall not Kahn, Kleinman, Xxxxxxxx & Xxxxxx
constitute notice) to: 0000 Xxxxx xx Xxxxxxxx
Xxxxxxxxx, Xxxx 00000-0000
Telecopy: (000) 000-0000
or to such other address as the addressee may have specified in a notice duly
given to the sender as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given as of
the earlier of actual receipt of three (3) Banking Days after being so
delivered, telegraphed, transmitted or mailed.
13.12 BANKING DAY. If any installment of principal or interest on the
Note falls due on a day which is not a Banking Day, the due date shall be
extended to the next succeeding Banking Day and such payment will be payable at
the applicable rate of interest for the period of such extension.
13.13 MODIFICATION, COUNTERPARTS. This Agreement may be amended,
modified, renewed or extended only by written instrument executed in the manner
of its original execution. This Agreement may be signed in any number of
counterparts each of which shall be considered an original with the same effect
as if the signatures thereto and hereto were upon the same instrument.
13.14 CERTIFICATES. Unless otherwise expressly provided, this Agreement
and the other Loan Documents, or any notice, request, certificate or statement
of the Borrower required or permitted to be made or given under any provisions
hereof shall be sufficient when signed by the President or Secretary of the
Borrower. The Bank may rely upon the certificate of the Secretary of the
Borrower as to the adoption of resolutions by the Board of Directors of the
Borrower or as to the incumbency and authority of those officers signing on
behalf of the Borrower.
13.15 INTEREST RATE LIMITATIONS. Notwithstanding anything contained
herein to the contrary, the obligation of the Borrower to make payments of
interest shall be subject to the limitation that payments under the law or laws
applicable to the Bank limiting rates of interest which may be charged or
collected by the Bank. Any such payments of interest which are not made as a
result at the limitation referred to in the preceding sentence shall be made by
the Borrower to the Bank on the earliest payment date or dates on which the
receipt thereof would be permissible under the laws applicable to the Bank
limiting rates of interest which may be charged or collected by the Bank.
13.16 OTHER AGREEMENTS. This Agreement and the other Loan Documents
shall be construed consistently with each other in order to best effectuate the
intent of the Borrower and the Bank in entering into the relationships
contemplated by all these agreements. The agreements
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referenced herein constitute the sole and entire agreement of the parties and no
statement or promise has been made with respect to the subject matter of these
agreements other than as expressed herein. In the event of a conflict between
the terms of this Agreement and any of the other Loan Documents, the provisions
of this Agreement shall control, except with respect to the Note, those terms
shall control.
13.17 NO PARTNERSHIP. Nothing contained herein or in any of the Loan
Documents is intended to create or will be construed to create any relationship
between the Bank and the Borrower other than as expressly set forth herein or
therein and will not create any joint venture, partnership or other
relationship.
13.18 PARTICIPATIONS. Notwithstanding any other provision of this
Agreement, the Borrower understands that the Bank may at any time enter into
participation agreements with one or more participating banks whereby the Bank
will allocate certain percentages of its commitments to them. The Borrower
acknowledges that, for the convenience of all parties, this Agreement is being
entered into with the Bank only and that its obligations under this Agreement
are undertaken for the benefit of, and as inducement to, any such participating
bank as well as the Bank, and the Borrower hereby grants to each such
participating bank, to the extent of its participation in the Loans, the right
to set off deposit accounts maintained by the Borrower with such bank.
13.19 SEVERABILITY. If any provision of this Agreement shall be held
invalid under any applicable laws, such invalidity shall not effect any other
provision of this Agreement that can be given effect without the invalid
provision and, to this end, the provisions hereof are severable.
13.20 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one in the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the date and year
first written above.
COHESANT TECHNOLOGIES INC.
("Borrower")
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
Printed: Xxxxxx X. Xxxxxxx
---------------------------------------
Title: President
-----------------------------------------
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NBD BANK, N.A.
("Bank")
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------------
Xxxxx X. Xxxxxx, First Vice President
STATE OF INDIANA )
)SS:
COUNTY OF XXXXXXXX )
On this 15th day of May, 1998, before me personally appeared Xxxxxx X.
Xxxxxx, the President of Cohesant Technologies Inc., the Delaware corporation
described in the foregoing instrument and who executed the same, and
acknowledged to me that being duly authorized he executed the same as the free
and voluntary act of such corporation
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
Notary Public
Xxxxxxxx County, Indiana
My Commission Expires: August 28, 1998
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