1
Exhibit 4(b)
LOAN AGREEMENT
--------------
THIS LOAN AGREEMENT (the "Agreement") dated as of the 30th day of June, 1996
(the "Agreement"), by and between MPW Industrial Services, Inc. ("MPW Inc."),
MPW Industrial Services, LTD. ("MPW LTD."), MPW Management Services Corp. ("MPW
Corp.") , Weston Engineering, Inc. ("Weston"), Pro Kleen Industrial Services,
Inc. ("Pro Kleen"), and Aquatech Environmental, Inc. ("Aquatech") (MPW Inc., MPW
LTD., MPW Corp., Weston, Pro Kleen and Aquatech jointly and severally the
"Borrowers") ( MPW Inc., MPW LTD., MPW Corp., Weston, and Aquatech jointly and
severally the "Companies") and Bank One, Columbus, NA, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx 00000 ("Bank One").
RECITALS:
---------
WHEREAS, Borrowers desire to obtain certain credit facilities; and
WHEREAS, Bank One is willing to make available certain credit facilities upon
the terms and conditions hereinafter set forth;
NOW, THEREFORE, the parties agree as follows:
SECTION 1. CREDIT COMMITMENTS
-----------------------------
CREDIT COMMITMENTS. Bank One hereby agrees, on the terms and conditions of this
Agreement, to make available to Borrowers the credit facilities described in
Sections 2 and 3 of this Agreement.
SECTION 2. REVOLVING CREDIT FACILITY AND LETTERS OF CREDIT
----------------------------------------------------------
2.1 REVOLVING CREDIT COMMITMENT.
2.1.1 AVAILABILITY. At any time, the "Revolving Credit Commitment" shall be
an amount equal to Twelve Million Dollars ($12,000,000.00) less the
aggregate stated amounts of any outstanding Letter(s) of Credit,
provided, however, that upon any draws under any Letter(s) of Credit,
Bank One may treat such draw as a request for a Variable Rate Loan so
long as the Revolving Credit Commitment is not thereby exceeded. The
Revolving Credit Commitment shall be available to the Company,
subject to the limitations herein, in whole or in part and from time
to time until June 30, 1998, and any amounts borrowed may be repaid
in whole or in part and reborrowed until such date. Each borrowing
under the Revolving Credit Commitment, except as otherwise provided
in Section 2.2.1, shall be in an amount not less than $1,000 or any
larger amount which is an integral multiple of $1,000 (a "Revolving
Credit Loan"); provided, however, any Revolving Credit Loan in the
form of a Eurodollar Rate Loan shall be in an amount not less than
$500,000 or any larger amount which is an integral multiple of
$100,000.
- 1 -
2
2.1.2 CONVERSION OPTIONS. Borrowers may elect from time to time to convert
all or a portion of the Variable Rate Loans then outstanding to
Eurodollar Rate Loans by giving Bank One irrevocable telephone notice
of such election as provided in this Section 2.1.2. Each Eurodollar
Rate Loan shall automatically convert to a Variable Rate Loan upon
its maturity unless Borrowers elect to continue such Variable Rate
Loan as a Eurodollar Rate Loan by giving Bank One the irrevocable
telephone notice of such election as provided in this Section 2.1.2.
Any such notice pursuant to this Section 2.1.2 shall be received by
Bank One not later than 10:30 a.m. Columbus, Ohio time on the
Eurodollar Banking Day immediately prior to the proposed conversion
date, which shall be a Eurodollar Banking Day, and shall specify (i)
the conversion date and (ii) the length of the Interest Period. If no
Event of Default or Default then exists, such conversion shall be
made on the requested conversion date. All or any part of the
outstanding Revolving Credit Loans may be converted as provided
herein, provided that partial conversions of Revolving Credit Loans
shall be in the aggregate principal amount of $500,000 or in
additional amounts of $100,000 or integral multiples thereof.
2.1.3 REVOLVING CREDIT NOTE. The obligation of Borrowers to repay the
unpaid principal amount of each Revolving Credit Loan shall be
evidenced by a master promissory note (the "Revolving Credit Note")
of the Borrowers executed by duly authorized officers thereof, dated
as of the date of this Agreement, and in the form of Exhibit 2.1.3
attached hereto.
2.1.4 COMMITMENT FEES. Borrowers shall pay to Bank One a Commitment Fee
(the "Commitment Fee") based on the daily average amount of the
Revolving Credit Commitment not drawn down in Revolving Credit Loans
(the "Unused Commitment") for the period beginning with the date
hereof and ending June 30, 1998 or on the sooner termination in full
of the Revolving Credit Commitment. The Commitment Fee shall be
payable quarterly in arrears on the last day of each March, June,
September and December and when the Revolving Credit Commitment is
fully terminated, on the date of such termination. The amount of the
Commitment Fee shall be equal to one-quarter percent (1/4%) per annum
of the Unused Commitment (computed on the basis of the actual number
of days elapsed over a Business Year).
2.1.5 CANCELLATION OR REDUCTION OF THE COMMITMENT BY BORROWERS.
(a) The Revolving Credit Commitment may be cancelled or may be
reduced permanently from time to time by Borrowers in the amount of
$500,000 or any larger amount which is a whole multiple of $100,000
at any time upon one Domestic Banking Day's written notice to Bank
One of Borrowers' election to do so, which notice shall specify the
date when such cancellation or reduction shall be effective and on
the effective date of such reduction the Revolving Credit Commitment
shall be reduced; provided that:
(i) any such cancellation or reduction shall be irrevocable;
- 2 -
3
(ii) in the event of a cancellation of the Revolving Credit
Commitment, the Revolving Credit Note shall be paid in full and all
Commitment Fees due to the date of cancellation shall be paid in
full;
(iii) in the event of a reduction of the Revolving Credit
Commitment to a level which is below the principal amount of the then
outstanding Revolving Credit Loans, the Revolving Credit Loans shall
be prepaid so that the aggregate unpaid principal amount of the
Revolving Credit Loans do not exceed the Revolving Credit Commitment
as so reduced; and
(iv) no cancellation or reduction shall take place which will
require Borrowers to prepay a Eurodollar Rate Loan in order to reduce
the then outstanding principal balance on the Revolving Credit Loans
to the level of the Revolving Credit Commitment following such
cancellation or reduction, except with the consent of Bank One, which
consent may be withheld at the discretion of Bank One or granted on
such terms and for such consideration as Bank One shall determine.
(b) All principal payments made pursuant to this Section 2.1.5 shall
be accompanied by such additional consideration as may be required
pursuant to any other provision of this Agreement.
2.2 LETTERS OF CREDIT.
2.2.1 LETTER OF CREDIT COMMITMENT. Any authorized signer of Borrowers may
request that Bank One issue a letter or letters of credit in an
aggregate undrawn amount of the Revolving Credit Commitment up to a
maximum of Three Million Dollars ($3,000,000.00) (including the
existing letters of credit set forth on Exhibit 2.2 prior to their
expiration) from time to time for the benefit of Borrowers (the
"Letter of Credit Commitment"). The Letter of Credit Commitment shall
be available to the Borrowers subject to the limitations herein, in
whole or in part and from time to time until June 30, 1998; provided
that the termination date of any such Letter(s) of Credit shall be no
later than June 30, 2003.
2.2.2 REIMBURSEMENT. Borrowers agree that, at the sole discretion of Bank
One, whenever amounts become due to Bank One from Borrowers for
reimbursement of any draws under any Letter(s) of Credit, Bank One
may (but shall not be obligated to) treat such event as a request for
a Variable Rate Loan under this Agreement and directly apply the
proceeds of such Variable Rate Loan to the payment of the then
outstanding reimbursement obligations of Borrowers for draws under
such Letter(s) of Credit. Any amounts which are drawn under any
Letter(s) of Credit after June 30, 1998 shall be payable by Borrowers
immediately and shall not become a Variable Rate Loan since the
Revolving Credit Commitment shall have matured.
- 3 -
4
2.3 CONVERSION OPTION.
2.3.1 CONVERSION. Provided no Default or Event of Default then exists,
Borrowers may, on or before June 30, 1998, exchange the Revolving
Credit Note for a note having a principal amount equal to the then
unpaid principal balance of the Revolving Credit Loans (the
"Conversion Option Loan") and the Revolving Credit Note will
thereafter be cancelled and the Revolving Credit Commitment
terminated.
2.3.2 CONVERSION OPTION NOTE. The Conversion Option Loan shall be evidenced
by the promissory note of Borrowers executed by duly authorized
officers thereof and shall be in the form of Exhibit 2.3.2 attached
hereto with blanks appropriately completed (the "Conversion Option
Note").
SECTION 3. ADDITIONAL CREDIT FACILITIES.
----------------------------------------
3.1 AMENDED AND RESTATED AIRPLANE LOAN.
3.1.1 LOAN. Bank One has lent to MPW, Inc. the sum of Three Million Dollars
($3,000,000.00) (the "Airplane Loan").
3.1.2 AIRPLANE NOTE. Borrowers shall execute and deliver to Bank One the
amended and restated promissory note executed by duly authorized
officers thereof in the form of Exhibit 3.1 attached hereto (the
"Aircraft Note").
3.2 WESTON ACQUISITION LOAN.
3.2.1 LOAN. Bank One agrees to lend to Borrowers the sum of Two Million
Eight Hundred Thousand Dollars ($2,800,000.00) (the "Weston
Acquisition Loan").
3.2.2 WESTON ACQUISITION NOTE. Borrowers shall execute and deliver to Bank
One the promissory note executed by duly authorized officers thereof
in the form of Exhibit 3.2 attached hereto (the "Weston Acquisition
Note").
3.3 EQUIPMENT LOAN.
3.3.1 LOAN. Bank One agrees to lend to Borrowers the sum of One Million
Eight Hundred Thousand Dollars ($1,800,000.00) (the "Equipment
Loan").
3.3.2 EQUIPMENT NOTE. Borrowers shall execute and deliver to Bank One the
promissory note executed by duly authorized officers thereof in the
form of Exhibit 3.3 attached hereto (the "Equipment Note").
3.4 MORTGAGE LOAN. Bank One agrees to lend to the Black Family Limited
Partnership the sum of Two Million Two Hundred Thousand Dollars
($2,200,000.00), which shall be guaranteed by MPW, Inc. (the "MPW
Mortgage Guaranty").
- 4 -
5
3.5 CERTAIN LETTERS OF CREDIT. Bank One has issued two letters of credit,
copies of which are attached hereto as Exhibit 3.5, pursuant to the
Letter of Credit Agreement. Pursuant to the Letter of Credit
Agreement, MPW, Inc. has guaranteed the reimbursement obligations of
the Account Party to Bank One (the "MPW Reimbursement Obligations").
SECTION 4. PROVISIONS APPLICABLE TO ALL LOANS.
----------------------------------------------
4.1 REVOLVING CREDIT LOAN.
4.1.1 ELECTION. Each Revolving Credit Loan shall, at the election of
Borrowers made in accordance with the provisions of this Section
4.1.1, be made either in the form of (i) a Variable Rate Loan at a
rate of interest in accordance with Section 4.1.1 (individually a
"Variable Rate Loan" and collectively the "Variable Rate Loans") or
(ii) a Eurodollar Rate Loan at a rate of interest in accordance with
Section 4.1.1 (individually a "Eurodollar Rate Loan" and collectively
the "Eurodollar Rate Loans"). The aggregate unpaid principal amount
of the Variable Rate Loans and the Eurodollar Rate Loans at any one
time outstanding shall not exceed the Revolving Credit Commitment.
Each Revolving Credit Loan shall be made pursuant to Borrowers'
request therefore to Bank One which request for a Revolving Credit
Loan shall specify (i) the total amount of the Revolving Credit Loan;
(ii) the borrowing date (the "Borrowing Date"), which shall be a
Domestic Banking Day in the case of a Variable Rate Loan and a
Eurodollar Banking Day in the case of a Eurodollar Rate Loan; and
(iii) whether the Revolving Credit Loan is to be a Variable Rate Loan
or a Eurodollar Rate Loan (and in the case of a Eurodollar Rate Loan,
the length of the Interest Period). Requests for Variable Rate Loans
may be made on the applicable Borrowing Date. Requests for Eurodollar
Rate Loans shall be made not later than 10:30 a.m. Columbus, Ohio
time on the Eurodollar Banking Day immediately prior to the
applicable Borrowing Date.
In the case of a request for a Eurodollar Rate Loan, Bank One shall,
not later than 10:30 a.m. Columbus, Ohio time on the applicable
Borrowing Date, give notice to Borrowers of the Adjusted Eurodollar
Rate (including information as to the calculation thereof) applicable
for the period requested by Borrowers. Borrowers shall not later than
12:00 p.m. Columbus, Ohio time on the applicable Borrowing Date give
notice by telephone confirmed in writing to Bank One whether they
elect (i) to complete such borrowing in the form of a Eurodollar Rate
Loan; (ii) to complete such borrowing as a Variable Rate Loan; or
(iii) to cancel its request for a Revolving Credit Loan. Failure by
Borrowers to timely deliver such notice shall constitute cancellation
of such request.
4.1.2 INTEREST RATE ON REVOLVING CREDIT LOANS. Revolving Credit Loans shall
bear interest at the rate(s) set forth on Exhibit 4.1.2.
- 5 -
6
4.2. TERM LOANS.
4.2.1 ELECTION. Unless Borrowers have elected to cause all or a portion of
a Term Note to bear interest at an Adjusted Eurodollar Rate, a Term
Note shall bear interest at a Variable Rate in accordance with
Section 4.2.2. Borrowers may elect to have all or a portion of any
Term Note bear interest at an Adjusted Eurodollar Rate in accordance
with Section 4.2.2. by providing a request therefor to Bank One not
later than 10:30 a.m. Columbus, Ohio time on the Eurodollar Banking
Day immediately prior to the applicable Effective Date, which request
shall specify (i) the effective date of the Adjusted Eurodollar Rate
(the "Effective Date"), which shall be a Eurodollar Banking Day, (ii)
the principal amount of the Term Note to bear interest at the
Adjusted Eurodollar Rate, which shall be not less than $500,000 or in
additional amounts of $100,000 or integral multiples thereof and
(iii) the length of the Interest Period. Bank One shall not later
than 10:30 a.m. Columbus, Ohio time on the applicable Effective Date,
give notice to Borrowers of the Adjusted Eurodollar Rate (including
information as to the calculation thereof) applicable for the period
requested by Borrowers. Borrowers shall not later than 12:00 p.m.
Columbus, Ohio time on the applicable Effective Date give notice by
telephone to Bank One as to whether or not it elects to have all or a
portion of the Term Note bear interest at the Adjusted Eurodollar
Rate commencing as of the Effective Date and if so, the Interest
Period. In the event Borrowers elect not to have the Term Note bear
interest at the Adjusted Eurodollar Rate or fails to timely deliver
such notice of election, the Term Note shall continue to bear
interest at the Variable Rate (or other applicable Adjusted
Eurodollar Rate then in effect) and such portion of the Term Loan
bearing interest at an Adjusted Eurodollar Rate shall upon expiration
of such Interest Period bear interest at the Variable Rate. Each
election to have a portion of the Term Note bear interest at the
Adjusted Eurodollar Rate shall be recorded and endorsed by Bank One
on the schedule attached to the Term Note; provided, however, that
the failure of Bank One to make such recordation shall not limit or
otherwise affect the obligations of Borrowers under the Term Note.
4.2.2 INTEREST RATE ON TERM LOANS. Term Loans shall bear interest at the
rate(s) set forth on Exhibit 4.2.2.
4.3 INTEREST PAYMENT DATES.
4.3.1 Revolving Credit Loans. Interest on each Revolving Credit Loan
shall be calculated on the basis of the actual number of days elapsed
over a Business Year. Interest on each Variable Rate Loan shall be
payable on the last day of each fiscal quarter (the "Interest Payment
Date") payable on each December 31, March 31, June 30 and September
30 during this Agreement. Interest on each Eurodollar Rate Loan shall
be payable on the last day of the Interest Period, but not less
frequently than quarterly.
4.3.2 Term Loans. Interest on the portion of any Term Note bearing
interest at an Adjusted Eurodollar Rate shall be payable on the last
day of the Interest Period. Interest on the portion of any Term Note
bearing interest at a Variable Rate shall be payable on each Interest
Payment Date, but not less frequently than quarterly.
- 6 -
7
4.4 PRINCIPAL PAYMENT DATES. Principal payments on the Notes shall be due
and payable in accordance with the terms thereof.
4.5 OPTIONAL PREPAYMENTS.
4.5.1 Variable Rate Loans. Outstanding Variable Rate Loans or amounts
due on Term Notes bearing interest at a Variable Rate may be prepaid,
at Borrowers' option, in whole or in part at any time or from time to
time, without premium or penalty, in principal amounts of $1,000 or
integral multiples thereof, by giving written, telegraphic or oral
notice to Bank One not later than 2:00 p.m. Columbus, Ohio time on
the Domestic Banking Day on which prepayment is to be made. When such
notice of prepayment has been given to Bank One, the applicable
principal amounts of the Variable Rate Loans shall become due and
payable on the designated prepayment date. Interest on the principal
of the Revolving Credit Notes repaid, accrued to such prepayment
date, shall be due and payable on the next Interest Payment Date.
Eurodollar Loans may only be prepaid as provided for in Section
4.7(e) and Section 2.1.5.
4.5.2 Eurodollar Eurodollar Loans and amounts due on Term Notes
bearing interest at a Eurodollar Rate may only be prepaid as provided
for in Section 4.7(e) and Section 2.1.5.
4.6 DEFAULT RATE. Notwithstanding anything to the contrary contained
herein or in the Notes, on and after an Event of Default resulting
from the failure to timely pay principal of or interest on the Notes
or on or after any other Event of Default in which Bank One has
exercised its rights under Section 9.1 of this Agreement (subject to
notice and cure provisions provided herein), the Loans, including
Eurodollar Rate Loans and Term Loans bearing interest at an Adjusted
Eurodollar Rate, shall bear interest at a rate per annum equal to two
percent (2%) in excess of the Prime Rate from the date of such Event
of Default until paid in full.
4.7 ADDITIONAL PROVISIONS AND LIMITATIONS FOR EURODOLLAR RATE LOANS. The
additional provisions and limitations set forth below shall apply
with respect to Eurodollar Rate Loans on both the Term Loans and on
the Revolving Credit Commitment:
(a) If Bank One shall, prior to making any Eurodollar Rate Loan in
good faith, determine that it is unable to reasonably ascertain the
Eurodollar Rate or to acquire Eurodollar deposits on reasonable terms
in an amount sufficient to meet a request for a Eurodollar Rate Loan,
Bank One shall promptly notify Borrowers. In such event, the
Borrowers may request a Variable Rate Loan of like amount without
regard to the notice requirement of Section 4.1 or Section 4.2 or may
cancel such request.
(b) The obligation of Bank One to make Eurodollar Rate Loans
hereunder shall be suspended in the event that after the date hereof
any change in any law or regulation or in any interpretation thereof
by any governmental authority charged with its administration shall,
in the sole opinion of Bank One, make it unlawful for Bank One to
comply with its obligation to make or maintain any Eurodollar Rate
Loan hereunder for the duration of such illegality. Bank One shall
promptly notify Borrowers of such suspension, and, if
- 7 -
8
and when, in the sole opinion of Bank One, such illegality ceases to
exist, such suspension shall cease and Bank One shall promptly notify
Borrowers of such termination of such suspension.
(c) If Bank One has Eurodollar Rate Loans outstanding and after the
date hereof there shall occur any change in applicable law,
regulation or interpretation (including any request, guideline or
policy not having the force of law by any authority charged with the
administration or interpretation thereof) (i) which change directly
affects transactions in Eurodollars, (ii) which involves new or
additional taxes, reserves (costs already included in the
Eurocurrency Liability not included) or deposit requirements in
regard to the Eurodollar Rate Loans or changes in the basis of
taxation of payments on such Eurodollar Rate Loans, or (iii) which,
if the Eurodollar Rate Loans made hereunder by Bank One were to have
been matched with Eurodollar deposits corresponding in amounts to
such Eurodollar Rate Loans and having maturity dates, which are the
same as such Eurodollar Rate Loans regardless of whether or not such
Eurodollar Rate Loans are in fact so matched, actually increases the
cost to Bank One of making or maintaining the Eurodollar Rate Loans
hereunder or reduces the amount of any payments (whether of
principal, interest or otherwise) receivable by Bank One as to any
Eurodollar Rate Loans or requires Bank One to make any payment on or
calculated by reference to the gross amount of any sum received by it
as to such Eurodollar Rate Loans, then where the amount of any such
additional cost, reduction or payment is deemed material by Bank One:
(i) Bank One shall promptly notify Borrowers of the occurrence of
such event;
(ii) Bank One shall promptly deliver to Borrowers a certificate
stating the change which has occurred, together with the date thereof
and the amount of and the manner of calculating the increased cost on
any outstanding Eurodollar Rate Loan; and
(iii) upon receipt of such certificate from Bank One, Borrowers
shall pay to Bank One on demand the amount or amounts of such
additional cost with respect to such outstanding Eurodollar Rate Loan
as additional compensation hereunder.
(d) The certificate of Bank One delivered to Borrowers as to the
additional amount payable pursuant to Section 4.7(c) shall (in the
absence of manifest error in the transmission or calculation) be
prima facie evidence of the amount thereof. The protection of this
Section 4.7(d) shall be available to Bank One regardless of any
possible contention of invalidity or inapplicability of the law,
regulation or condition which has been imposed. However, if Borrowers
have made a payment of any additional amounts pursuant to Section
4.7(c) and any subsequent event occurs which reduces the amount of
the increased cost incurred by Bank One, then Bank One shall promptly
refund to Borrowers an amount equal to such reduction in the amount
of increased cost.
(e) Borrowers shall be entitled, in addition to its other rights, to
prepay any outstanding Eurodollar Rate Loan (all such prepayments
shall be in full and not in part with interest accrued to the date of
such prepayments) by substituting a Variable Rate Loan of equal
principal amount therefor. As a condition of such prepayments other
than as required by
- 8 -
9
sub-section 4.7(b), Borrowers shall promptly pay to Bank One, upon
Bank One's written request, such amount or amounts as in the
reasonable judgment of Bank One will compensate Bank One for any
loss, premium or penalty incurred or to be incurred by Bank One
because of such prepayment.
4.8 PAYMENTS. All payments and prepayments by Borrowers to be made in
respect of the Commitment Fee or of principal or interest on the
Notes shall become due at 1:30 p.m. Columbus, Ohio time on the day
when due, and shall be made to Bank One in federal funds or other
immediately available lawful money of the United States of America.
Whenever any payment to be made hereunder shall be due other than on
a Domestic Banking Day, such payment shall be made on the next
succeeding Domestic Banking Day and such extension of time shall in
such case be included in the computation of interest or fees
hereunder.
4.9 SETOFFS. Upon the occurrence, and during the continuation, of any
Event of Default, Bank One shall have the right to set off against
all obligations of Borrowers to Bank One under this Agreement and the
Notes, whether matured or unmatured, all amounts owing to Borrowers
by Bank One, whether or not then due and payable, and all funds or
property of Borrowers on deposit with or otherwise held or in the
custody of Bank One for the beneficial account of Borrowers, except
for (a) funds necessary to cover checks for the payment of taxes or
employee contributions in which Borrowers have no beneficial interest
issued to third parties prior to the date any setoff is claimed by
Bank One and (b) accounts maintained, but not substantially
overfunded, for the payment of taxes or employee contributions in
which Borrowers have no beneficial interest. Such funds shall be
charged against accrued interest on and/or principal of the Notes or
Commitment Fees as Bank One may determine in its discretion.
4.10 INTEREST CALCULATION. Interest upon the Notes shall be calculated on
a 365 day year basis and shall be calculated by dividing the actual
number of days which elapsed during the period interest accrued by a
year of 365 days times the interest rate in effect.
SECTION 5. CONDITIONS OF BORROWING.
-----------------------------------
The obligation of Bank One to make the Loans to Borrowers provided for hereunder
shall be subject to the following conditions:
5.1 CONDITIONS PRECEDENT TO THE INITIAL REVOLVING CREDIT LOAN. Prior to
the disbursement of the initial Revolving Credit Loan hereunder,
Borrowers shall furnish to Bank One the following, each dated the
date of the disbursement of the initial Revolving Credit Loan, in
form and substance satisfactory to Bank One and counsel for Bank One:
(a) The duly executed Revolving Credit Note in the form of the
attached Exhibit 2.1.3;
(b) Certified copies of the resolutions of the board of directors or
general partners of each Borrower authorizing the execution, delivery
and performance of the Borrower's obligations under this Agreement
and the Notes;
- 9 -
10
(c) A certificate of the Secretary, Assistant Secretary, or general
partners of each Borrower which shall certify the names of the
person(s) of each Borrower authorized to sign this Agreement and the
Notes and any other documents or certificates to be delivered
pursuant to this Agreement by Borrowers, together with the true
signatures of such person(s). Bank One may conclusively rely upon
such certificate until it shall receive a further certificate of the
Secretary, Assistant Secretary or general partners cancelling or
amending the prior certificate and submitting the signatures of the
person(s) named in such further certificate;
(d) Evidence that each Borrower has in effect insurance and
endorsements of the character and amount described in Section 7.4;
(e) An opinion satisfactory to Bank One by counsel acceptable to Bank
One, which shall include, but not be limited to, the following: that
the Opinion Borrowers are duly organized and existing corporations;
that the execution hereof has been duly authorized by all necessary
corporate action; that there is no prohibition, either by law, in
their articles of incorporation, code of regulations, by-laws or in
any agreement for borrowed money to which they are a party, which in
any way prohibits or would be violated by the execution or carrying
out of this Agreement in any respect; that this Agreement has been
duly executed and is the valid and binding obligation of Opinion
Borrowers jointly and severally; and that the Notes are duly executed
and represent valid and binding obligations of the Opinion Borrowers,
jointly and severally.
(f) Such other opinions, certificates, affidavits, documents and
filings as Bank One may deem reasonably necessary or appropriate.
5.2 CONDITIONS PRECEDENT TO EACH LOAN. At the time of each Revolving
Credit Loan after the initial Revolving Credit Loan and at the time
of making the Term Loans, the following conditions shall be satisfied
(and the request or application by Borrowers for a Revolving Credit
Loan or the Term Loans shall constitute a representation and warranty
to such effect): (i) Borrowers shall be in compliance with all of the
provisions, warranties and covenants contained in this Agreement with
which they are to comply and (ii) there shall exist no Default or
Event of Default.
5.3 ADDITIONAL CONDITIONS PRECEDENT TO TERM LOAN. In addition to the
conditions stated in Section 5.2, at the time of the making of the
Conversion Option Loan, Borrowers shall deliver a properly executed
Conversion Option Note to Bank One as provided in Section 2.3.2.
SECTION 6. REPRESENTATIONS AND WARRANTIES.
------------------------------------------
In borrowing hereunder, Borrowers represent and warrant to Bank One, which
representations and warranties will survive the execution and delivery of this
Agreement and the Notes, that:
- 10 -
11
6.1 ORGANIZATION & AUTHORITY TO EXECUTE LOAN DOCUMENTS. Borrowers are
duly organized and existing corporations under the laws of the
jurisdictions of their incorporation and are qualified to do business
in all states where such qualification is necessary, except such
jurisdiction, if any, where failure to be qualified will not have a
material and adverse effect on the Borrowers taken as a whole; the
execution hereof has been duly authorized by all necessary corporate
action; there is no prohibition, either by law, in their articles of
incorporation, code of regulations, by-laws, or in any agreement to
which they are a party, which in any way prohibits or would be
violated by the execution and carrying out of this Agreement in any
respect; this Agreement has been duly executed and is the valid and
binding obligation of Borrowers jointly and severally; and, the Notes
issued and delivered to Bank One as payee pursuant to the provisions
hereof will also be a valid and binding obligation of Borrowers,
jointly and severally.
6.2 COMBINED FINANCIAL STATEMENTS. Borrowers have furnished to Bank One
the most recent Combined Audited Financial Statements as required in
Section 7.1 hereof which are free of material mistatements according
to generally accepted accounting principles and which fairly reflect
their financial condition as of the date stated therein. "Audited
Financial Statements" shall mean Financial Statements which have been
audited, prepared, and certified, without qualification, by any of
the "Big 6" accounting firms or by another firm of independent
certified public accountants of recognized standing and acceptable to
Bank One.
6.3 NO GUARANTIES OF OTHERS' OBLIGATIONS. None of the Borrowers have made
material investments in, advances to or guaranties of the obligations
of any Person, corporation or other entity except as disclosed in the
Financial Statements described in Sections 7.1 and 7.2, or as set
forth in Sections 3.3 and 3.5, or as disclosed to Bank One in
writing.
6.4 COMPLIANCE WITH OCCUPATIONAL SAFETY & HEALTH ACT. Borrowers as a
whole are not in violation of any requirement of any applicable
occupational safety and health act or any standard, rule or order
promulgated pursuant thereto or any regulation prescribed pursuant
thereto, the violation of which involves (i) the probable occurrence
of a material adverse effect on the business, operation or condition
of the Borrowers as a whole or (ii) the ability of the Borrowers as a
whole to perform this Agreement.
6.5 NO UNDISCLOSED LIABILITIES. Borrowers have no material liabilities,
direct or contingent, except as disclosed in the Financial Statements
described in Sections 7.1 and 7.2.
6.6 NO UNDISCLOSED SUBSIDIARIES. There exist as of the date hereof no
Subsidiaries of any Borrower except as disclosed to Bank One in
writing prior to the execution of this Agreement.
- 11 -
12
6.7 GOOD TITLE TO ASSETS AND NO UNDISCLOSED LIENS. Borrowers have good
and marketable title to all the property and assets reflected as
being owned by them in the Financial Statements described in Sections
7.1 and 7.2 , subject to no liens, other than liens reflected on said
Financial Statements or Permitted Liens, except property and assets
disposed of since such date in the ordinary course of business.
6.8 POSSESS NECESSARY PATENTS, TRADEMARKS, & LICENSES. Borrowers own or
possess all material patents, trademarks, service marks, trade names,
copyrights, permits and licenses, or rights with respect to the
foregoing, necessary for the present and planned future conduct of
the business, without any known conflict with the rights of others,
except as disclosed to Bank One in writing. At the date of this
Agreement, there is no such patent, trademark, service xxxx, trade
name, copyright, permit, license or charter of material importance to
the conduct of the business of any of the Borrowers other than has
been disclosed to Bank One in writing.
6.9 NO UNDISCLOSED INTEREST IN THE TITLE TO ASSETS. None of the assets or
property, the value of which is reflected in the Financial Statements
described in Sections 7.1 and 7.2, is held by any Borrower as lessee
or conditional vendee, or pursuant to a title retention agreement of
any kind, except as set forth in said Financial Statements or the
notes relating thereto or as disclosed to Bank One in writing.
6.10 NO UNDISCLOSED FINANCING STATEMENTS. To the best of Borrowers'
knowledge, no financing or continuation statement which names any
Borrower as debtor has been filed under the Uniform Commercial Code
in any state or other jurisdiction except as set forth in the
Financial Statements described in Sections 7.1 and 7.2, as disclosed
to Bank One in writing, or with respect to purchase money liens
permitted pursuant to Section 8.1, and no Borrower has agreed to or
consented to cause or to permit in the future (upon the happening of
a contingency or otherwise) any of their property, whether now owned
or hereafter acquired, to be subject to a lien, except Permitted
Liens.
6.11 LEASES ARE VALID AND ENFORCEABLE. Each material lease of real estate
or personal property to which any Borrower is a party as lessee is
valid, binding, and enforceable by the Borrower as lessee in all
material respects in accordance with its terms, entitles the lessee
to undisturbed possession of the real estate or personal property
covered thereby during the full term thereof and no event of default
thereunder or event which with the giving of notice or lapse of time
or both would constitute an event of default with respect to the
Borrowers thereunder has occurred.
6.12 NO LAWSUITS OR JUDGMENTS. There is no action, suit or proceeding at
law or in equity or any arbitration proceeding or investigation,
inquiry or other proceeding by or before any court or governmental
instrumentality or other agency now pending or, to the knowledge of
any Borrower threatened or affecting any Borrower or any property or
rights of any Borrower, except such of the foregoing which, would not
be reasonably likely in the aggregate to have a material adverse
effect on Borrowers taken as a whole or which does not seek to enjoin
the consummation of any transaction contemplated by this Agreement.
No judgment, decree or order of any federal, state or municipal
court,
- 12 -
13
board or other governmental or administrative agency has been issued
against or binds Borrowers taken as a whole which has, or is likely
to have, any material adverse effect on the business or assets or the
condition, financial or otherwise, of Borrowers taken as a whole.
6.13 FILING AND PAYMENT OF TAXES. Borrowers have duly filed or caused to
be filed all federal, state and local tax returns which are required
to be filed, and have duly paid or caused to be duly paid, all taxes
as shown on said returns or on any assessment received by them, to
the extent that such taxes have become due. Borrowers have made
provisions which are believed by the officers of Borrowers to be
adequate for the payment of such taxes for the years that have not
been audited by the respective tax authorities.
6.14 NO ADVERSE EFFECT FROM OBLIGATION OF CONTRACTS/LAW. No Contractual
Obligation of or Requirement of Law upon Borrowers taken as a whole
materially and adversely affects their business, properties or
assets, operations or conditions (financial or otherwise), or the
ability of Borrowers taken as a whole to perform this Agreement, or
any other agreement or instrument herein or therein contemplated.
6.15 NO ADVERSE EFFECT FROM DEFAULT OF CONTRACTS/LAW. Borrowers are not in
default under any applicable Contractual Obligation or Requirement of
Law so as to affect adversely and materially the business or assets
or the condition, financial or otherwise, of Borrowers taken as a
whole or the ability of Borrowers taken as a whole to perform this
Agreement, or any other agreement or instrument herein or therein
contemplated.
6.16 NO DEFAULT OF THIS AGREEMENT. There does not exist any Event of
Default or any condition or circumstance which constitutes or with
lapse of time or the giving of notice or both would constitute an
Event of Default.
6.17 INSURANCE. All of the properties and operations of Borrowers of a
character usually insured against by Persons of established
reputation engaged in the same or a similar business similarly
situated are adequately insured, by financially sound and reputable
insurers against loss or damage of the kinds and in the amounts
customarily insured against by such Persons: and Borrowers carry,
with such insurers in customary amounts, such other insurance,
including public and product liability insurance, as is usually
carried by Persons of established reputation engaged in the same or a
similar business similarly situated; provided, however, that
Borrowers may elect to maintain at any time self-insurance coverage
(including deductible amounts) up to maximums as set forth on Exhibit
6.17.
6.18 NO UNTRUE OR MISLEADING STATEMENTS OR OMISSIONS. Neither this
Agreement nor any other agreement, instrument or certificate
contemplated by or made or delivered pursuant to or in connection
with this Agreement, contains any untrue statement of a material fact
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
- 13 -
14
6.19 COMPLIANCE WITH ERISA. Borrowers are in compliance in all material
respects with the applicable provisions of the Employee Income
Security Act of 1974, as amended and any regulations promulgated
thereunder (hereinafter referred to as "ERISA") ERISA, and no
"reportable event" as such term is defined in Section 4043 of ERISA,
has occurred with respect to any Plan of Borrowers.
6.20 ENVIRONMENTAL. (1) Borrowers are in compliance in all material
respects with all Environmental Laws and health and safety
regulations; (2) there are no material governmental investigations of
the environmental matters of the Borrowers; (3) there are no
contingent liabilities which could reasonably be expected to have a
material adverse effect on the financial condition or operations of
the Borrowers taken as a whole; and (4) the transactions set forth
herein and contemplated hereby shall not subject Bank One or any of
Bank One's parent, subsidiary or affiliated entities to any
Environmental Law (including, without limitation, any clean-up
responsibility law or restrictive transfer law or regulation).
6.21 COMPLIANCE WITH FEDERAL RESERVE REGS S,T,U,OR X. None of the
Borrowers are engaged in the business of extending credit for the
purpose of purchasing or carrying margin stock (within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System
as it is now and may from time to time hereafter be in effect) and no
part of the proceeds of any loan will be used to purchase or carry
any such margin stock or to reduce or retire any indebtedness
incurred for any such purpose. No part of the proceeds of the loan
hereunder will be used for any purpose which violates, or which is
inconsistent with the provisions of Regulations S, T, U or X of said
Board of Governors.
SECTION 7. AFFIRMATIVE COVENANTS.
---------------------------------
Until all indebtedness of Borrowers to Bank One has been paid:
7.1 ANNUAL COMBINED FINANCIAL STATEMENTS.
7.1.1 Of Companies. Companies shall furnish to Bank One within ninety (90)
days after the close of each fiscal year annual Combined Audited
Financial Statements which fairly reflect their financial condition
as of the date stated therein.
7.1.2 Of Pro Kleen. Pro Kleen shall furnish to Bank One within ninety (90)
days after the close of each fiscal year annual Financial Statements
which fairly reflect its financial condition as of the date stated
therein.
7.2 PERIODIC COMBINED FINANCIAL STATEMENTS.
7.2.1 Of Companies. Companies shall furnish to Bank One within sixty (60)
days after the close of each quarter of each fiscal year, Combined
Financial Statements which fairly reflect their financial condition
as of the date stated therein and which are certified as true and
correct in all material respects by the Chief Executive Officer or
Chief Financial
- 14 -
15
Officer of each of the Companies. At the same time, Companies shall
furnish to Bank One a letter detailing all distributions required for
the payment of taxes.
7.2.2 Of Pro Kleen. Pro Kleen shall furnish to Bank One within sixty (60)
days after the close of each quarter of each fiscal year, Financial
Statements which fairly reflect its financial condition as of the
date stated therein and which are certified as true and correct in
all material respects by the Chief Executive Officer or Chief
Financial Officer of Pro Kleen.
7.3 NO DEFAULT CERTIFICATE. The Financial Statements called for by the
above paragraph(s) must be accompanied by a certificate signed by the
Chief Executive Officer or Chief Financial Officer of each Borrower
stating that, except as disclosed in the certificate, they have no
knowledge of any Event of Default or event which, with the lapse of
time or notice or both, would become an Event of Default hereunder,
and if an annual audit, review, or compilation is required by the
above paragraph(s), Borrowers will cause their independent certified
public accountants to provide Bank One with a similar certificate and
such certificate must accompany the audit, review, or compilation.
7.4 INSURANCE. Borrowers shall at all times:
a. Either: (1) maintain adequate insurance including, but not
limited to, workers' compensation upon all of its properties and
operations of a character usually insured against by Persons of
established reputation engaged in the same or a similar business
similarly situated by financially sound and reputable insurers
against loss or damage of the kinds and in the amounts
customarily insured against by such Persons with Bank One named
as loss payee; or (2) be self insured without breach of Section
6.17.
b. Maintain with such insurers in customary amounts such other
insurance, including public and product liability insurance as is
usually carried by Persons of established reputation engaged in
the same or a similar business similarly situated.
c. At the request of Bank One, furnish a statement of its insurance
coverage.
d. All insurance policies shall contain a provision requiring the
insurance company to provide Bank One not less than ten days
written notice prior to cancellation of any such policy.
7.5 CONCURRENT PAYMENT OF OTHER BANK ONE INDEBTEDNESS. Borrowers shall
promptly pay when due any amounts owing to Bank One on account of
other indebtedness owing by any of the Borrowers from time to time
during the term of this Agreement and the Notes executed hereunder.
7.6 BANK ONE TO BE PRIMARY DEPOSITORY. If Bank One has a market presence
in any Borrower's business location, Bank One shall be the primary
depository and principal bank of account.
- 15 -
16
7.7 CHANGES IN ARTICLES OF INC., CODE OF REGS OR BY-LAWS. Borrowers shall
promptly provide Bank One with written notice after changes are made
of any amendments to or changes in their Articles of Incorporation,
code of regulations and/or by-laws, including such changes as might
affect the structure, condition, operation or management of Borrowers
and Borrowers' obligations to Bank One under the terms of this
Agreement and shall make such amended articles, code of regulations
or by-laws available for inspection by Bank One upon demand.
7.8 PAYMENT OF TAXES. Borrowers shall promptly pay and discharge all
taxes and assessments levied and assessed or imposed upon its
property or income as well as all claims which, if unpaid, might by
law become a lien or charge upon such property; provided, however,
that nothing herein contained shall require Borrowers to pay any such
taxes, assessments or claims so long as Borrowers shall in good faith
contest the validity and stay the execution and enforcement thereof.
7.9 COMPLIANCE WITH LAWS. Borrowers will promptly comply in all material
respects, with all applicable statutes, laws, ordinances and
governmental rules, regulations and orders to which it is subject or
which are applicable to each Borrower's business, property and assets
if noncompliance therewith would materially and adversely affect the
businesses of the Borrowers taken as a whole.
7.10 PRESERVE AND MAINTAIN CORPORATE RIGHTS. Each Borrower shall preserve
and maintain its corporate existence, rights, franchises and
privileges in the jurisdiction which it shall select, and qualify and
remain qualified as a foreign corporation in each jurisdiction where
such qualification is necessary, except such jurisdictions, if any,
where the failure to preserve and maintain its corporate existence,
rights, franchises and privileges, or qualify or remain qualified
will not have a material adverse effect on the business or property
of it; provided, however that nothing herein shall prevent any merger
or consolidation permitted hereunder.
7.11 PAYMENT OF LEGAL, FILING, AND CLOSING COSTS. Borrowers will pay or
reimburse all fees and expenses incurred by Bank One in connection
with the preparation of this Agreement, the Notes and related
documents and will also pay all out-of-pocket expenses of Bank One in
connection with the closing, collection and enforcement of this
Agreement, the Notes and other agreements and documents contemplated
herein. Borrowers shall, upon request, promptly reimburse Bank One
for all amounts expended, advanced or incurred by Bank One to satisfy
any obligation of Borrowers under this Agreement and other agreements
and documents contemplated herein, or in the collection and
enforcement of the Notes and Bank One's rights under this Agreement
including all court costs, attorney's fees, fees of auditors and
accountants and investigation expenses reasonably incurred by Bank
One in connection with such collection and enforcement, together with
interest at the post-maturity rate set forth herein on such amount
from the date of written demand by Bank One for reimbursement until
the date Bank One is actually reimbursed.
- 16 -
17
7.12 [INTENTIONALLY OMITTED]
7.13 MAINTAIN AND PRESERVE ASSETS AND MANAGEMENT. Borrowers shall use
reasonable efforts in good faith to maintain and preserve in good
working order and condition, ordinary wear and tear excepted, all of
Borrowers' properties necessary for the conduct of their business, if
failure to maintain and preserve such properties would over a
substantial period of time materially and adversely affect the
Borrowers taken as a whole. In addition, MPW, Inc. shall maintain a
management team for the management of MPW, Inc. and the Borrowers
which is reasonably similar, in terms of collective expertise and
experience, as is existing at the time of execution of this
Agreement.
7.14 ERISA REPORTS. Each Borrower will promptly furnish to Bank One (i) if
requested by Bank One, promptly after the filing thereof with the
United States Secretary of Labor or the Pension Benefit Guaranty
Corporation, copies of each annual and other report with respect to
each Plan or any other trust created thereunder, and (ii) immediately
upon becoming aware of the occurrence of any "reportable event" as
such term is defined in Section 4043 of ERISA, or of any "prohibited
transaction" as such term is defined in Section 4975 of the Internal
Revenue Code of 1986, as amended, in connection with any Plan or any
trust created thereunder, a written notice signed by the Chief
Executive Officer or Chief Financial Officer of Borrower specifying
the nature thereof, what action the Borrower is taking or proposes to
take with respect thereto and, when known, any action taken by the
Internal Revenue Service with respect thereto. Each Borrower will
fund all current service pension liabilities as they are incurred
under the provisions of all Plans from time to time in effect for the
benefit of employees of Borrower, and comply with all applicable
provisions of ERISA.
7.15 NOTIFICATION OF CERTAIN ADVERSE EVENTS. The Borrowers shall promptly
notify Bank One if it learns of the occurrence of (i) any event which
constitutes a Default, together with a detailed statement by a
responsible officer of the steps being taken to cure the effect of
such Default; or (ii) the receipt of any notice or the taking of any
other action by the holder of any material promissory note, debenture
or other evidence of indebtedness of a Borrower or of any security
(as defined in the Securities Act of 1933, as amended) of a Borrower
with respect to a claim of default, together with a detailed
statement by a responsible officer specifying the notice given or
other action taken by such holder and the nature of the claimed
default and what action Borrower is taking or proposes to take with
respect thereto; or (iii) any legal, judicial or regulatory
proceedings affecting Borrower or any of the properties of Borrower
in which the amount involved is material and is not covered by
insurance or which is reasonably likely to have a material adverse
effect on the Borrowers taken as a whole; (iv) any dispute between
Borrower and any governmental or regulatory body or any other Person
which is reasonably likely to have a material adverse effect on the
Borrowers taken as a whole; or (v) any event or condition having a
material adverse effect on the Borrowers taken as a whole.
- 17 -
18
7.16 ENVIRONMENTAL MATTERS. Borrowers shall comply in all material
respects with all applicable Environmental Laws.
Borrowers also covenant and agree to hold harmless and indemnify Bank
One and any of its officers, directors, employees and affiliates and
each of their officers, directors and employees from any and all
liabilities, losses, damages, penalties, fines, claims, suits, costs,
fees (including attorneys fees), and expenses, including, but not
limited to, liability for cleanup costs, the relocation of tenants
occupying the Premises or any portion thereof, containment costs,
bodily injury and property damage and all costs, fees (including
attorneys fees) and expenses incurred by Bank One and any of its
officers, directors, employees and affiliates and each of their
officers, directors and employees for the defense of any claim or
cause of action arising from the location, release, emission or
discharge of Pollutants on the Premises or into the environment. As
the term is used herein, "Pollutants" shall mean any "hazardous
substances" as defined in the Comprehensive Environmental Response,
Compensation and Liability Act as is now or hereafter amended or
supplemented, and regulations adopted pursuant thereto, "hazardous
waste" as defined under the Solid Waste Disposal Act, "air
pollutants" as defined under the Clean Air Act, "toxic pollutants" as
defined under the Clean Air Act or the Toxic Substances and Control
Act or other toxic or hazardous wastes or materials.
7.17 INSPECTION OF BOOKS AND RECORDS. Upon request by Bank One, Borrowers
shall make available for inspection during normal business hours to
duly authorized representatives of Bank One any of their books and
records, and shall furnish to Bank One any information regarding
their business affairs and financial condition including copies of
any contracts entered into by Borrowers within a reasonable time
after receipt of written request therefor.
7.18 INSPECTION OF PROPERTY. Borrowers shall make available for
inspection, during normal business hours and upon not less than
seventy-two (72) hours prior written notice from Bank One, to duly
authorized representatives of Bank One any of their property and
assets for the purpose of ascertaining that the covenants and
conditions of this Agreement are being complied with.
7.19 PAYMENT IN FULL UPON TRANSFER OF CERTAIN STOCK. In the event that
Xxxxx X. Xxxxx should sell, assign, deed into trust, pledge,
mortgage, dispose of or otherwise encumber all or a controlling
interest of his/her/its stock in any of the Borrowers without prior
written permission of Bank One, Borrowers shall within ten (10) days
of the event pay to Bank One all amounts due and owing from Borrowers
to Bank One under this Agreement and the Notes.
SECTION 8. NEGATIVE COVENANTS.
------------------------------
Except with the prior written consent of Bank One, each Borrower shall not:
8.1 ENCUMBERING ASSETS. Create, incur, assume or permit to continue any
mortgage, pledge, encumbrance, lien or charge of any kind upon or
security interest in any of its
- 18 -
19
property or assets, whether now owned or hereafter acquired, except
Permitted Liens as defined herein;
8.2 INCURRING OTHER DEBT. Create, incur, assume or suffer to exist any
Funded Debt or Current Debt except: (1) debt represented by the Notes
issued hereunder; (2) other indebtedness to Bank One; (3) Funded Debt
which, in the sole opinion of counsel for Bank One is satisfactorily
subordinated to all indebtedness owing Bank One; (4) unsecured
indebtedness to trade creditors arising out of the ordinary course of
each Borrower's business; (5) an aggregate amount not to exceed
$500,000.00 for purchase money debt, project financing and assumed
liabilities of any acquired business; (6) any intercompany debt; (7)
existing and currently anticipated capitalized leases between
Borrowers and Monte Black or the Black Family Limited Partnership as
provided on the most recent Combined Financial Statements; (8)
Executive Option Liabilities; and (9) unsecured Funded Debt, not to
exceed Four Million Dollars in the aggregate, to Bank One and/or
National City Bank of Columbus.
8.3 GUARANTY OF OTHERS' DEBTS. Assume, guarantee, endorse, contingently
agree to purchase or otherwise become liable upon the obligation of
any Person (except intercompany guarantees or guarantees existing on
the date of this agreement) in an amount in excess of Five Hundred
Thousand Dollars ($500,000.00);
8.4 MERGER OR CONSOLIDATION. Merge or consolidate with any other
corporation or any other business entity except that Borrowers may
merge or consolidate with each other;
8.5 TRANSFER OF SUBSTANTIAL PORTION OF ASSETS. Liquidate or sell, lease,
transfer or otherwise dispose of all or a substantial part of its
assets other than in the ordinary course of business without prior
written approval of Bank One which shall not be unreasonably
withheld. All proceeds from any such sale, lease or transfer shall be
remitted by Borrowers to Bank One to be applied to the Notes
previously described herein;
8.6 DISPOSING OF NOTES/ACCOUNTS RECEIVABLE. Discount or sell any of its
notes or accounts receivables;
8.7 MAKING LOANS. Make any loans or advances (except intercompany loans)
in any one fiscal year in excess of an aggregate of Seven Hundred
Fifty Thousand Dollars ($750,000);
8.8 AMOUNT OF COMBINED TANGIBLE NET WORTH. Permit Combined Tangible Net
Worth to be less than Thirteen Million Dollars ($13,000,000) at June
30, 1996 and thereafter; and furthermore thereafter, less than
Thirteen Million Dollars ($13,000,000) plus fifty percent (50.00%) of
Adjusted Net Income, measured quarterly, provided, however, that the
required Combined Tangible Net Worth shall not decrease under any
circumstances;
8.9 RATIO OF COMBINED LIABILITIES TO NET WORTH. Permit the ratio of Total
Combined Liabilities to Combined Tangible Net Worth to exceed the
ratio of 1.25 to 1.0;
- 19 -
20
8.10 RATIO OF COMBINED AVAILABLE INCOME TO FIXED CHARGES. Permit the ratio
of Combined Available Income to Combined Fixed Charges to be less
than 1.50 to 1.0;
8.11 DISTRIBUTIONS. Declare or pay any dividends, purchase, redeem,
retire, or otherwise acquire for value any of their capital stock now
or hereafter outstanding, return any capital to their shareholders or
make any distribution of assets to their shareholders, including, but
not limited to, cash payments made pursuant to MPW, Inc.'s 1994 Stock
Option Plan and 1991 Stock Option Plan; provided, however, that
Companies may, computed on a cumulative Combined basis, declare and
pay cash dividends to their shareholders in any fiscal year in an
aggregate amount not to exceed: (1) distributions required for the
payment of taxes, plus (2) fifty percent (50.00%) of Adjusted Net
Income; and
8.12 INTEREST IN PRO KLEEN. Companies shall not make any additional
investment in or loan to Pro Kleen which is greater than Two Hundred
Fifty Thousand Dollars ($250,000.00) in any one fiscal year or
greater than One Million Dollars ($1,000,000.00) during the term of
this Agreement in the aggregate, computed on a cumulative Combined
basis.
SECTION 9. EVENTS OF DEFAULT AND REMEDIES.
------------------------------------------
If any of the following events ("Events of Default") shall occur and be
continuing:
9.1. Borrowers shall default in the payment of any installment of the
principal of the Notes or the MPW Reimbursement Obligations or the
MPW Mortgage Guaranty or any indebtedness described in Section 8.2(8)
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment or by acceleration or
otherwise, provided such default shall continue for a period of ten
(10) calendar days;
9.2. Borrowers shall default in the payment of interest on the Notes or
the MPW Reimbursement Obligations or the MPW Mortgage Guaranty or any
indebtedness described in Section 8.2(8) when and as the same shall
become due and payable, whether at the due date thereof or at a date
fixed for prepayment or by acceleration or otherwise, provided such
default shall continue for a period of ten (10) calendar days;
9.3. Borrowers shall default with regard to: (1) any payment of principal
or interest beyond any applicable grace period if such default causes
the acceleration of the indebtedness, provided such default shall
continue for a period of ten (10) calendar days, or (2) the
performance or observance of any covenant, condition or agreement of
any other material instrument of indebtedness executed by any of the
Borrowers beyond any applicable grace period if such default causes
the acceleration of the indebtedness;
9.4. Any representation or warranty made by Borrowers in this Agreement or
in connection with the loan(s) hereunder, or in any security
agreement, mortgage, report, certificate, financial statement or
other agreement, document or instrument furnished in connection with
this Agreement or the loan(s) hereunder shall prove to be false or
misleading in any
- 20 -
21
material respect at the time made;
9.5. Borrowers shall fail to observe or perform any covenant, condition or
agreement in Section 8 of the Agreement; provided such failure shall
continue unremedied for a period of twenty (20) days;
9.6. Borrowers shall fail to observe or perform any covenant, condition or
agreement to be observed or performed pursuant to the terms of this
Agreement (excluding Section 8), provided such default shall continue
unremedied for twenty (20) days after written notice, which notice
shall include a description of the Event of Default thereof to the
Borrowers by Bank One;
9.7. Final judgment for the payment of money in excess of One Hundred
Thousand Dollars ($100,000) shall be rendered against any Borrower
and the same shall remain undischarged for a period of thirty (30)
consecutive days during which the execution shall not be effectively
stayed; or the collateral is threatened with or subject to levy,
attachment, condemnation or forfeiture proceedings;
9.8. Any Borrower shall (i) apply for or consent to the appointment of a
receiver, trustee or liquidator for it or for any of its property,
(ii) admit in writing its inability to pay its debts as they mature,
(iii) make a general assignment for the benefit of creditors, (iv) be
adjudicated a bankrupt or insolvent, or (v) file a voluntary petition
in bankruptcy, or a petition or an answer seeking reorganization or
an arrangement with creditors to take advantage of any bankruptcy,
reorganization, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or an answer admitting the material
allegations of a petition filed against it in any proceeding under
any such law or if corporate action shall be taken by any Borrower
for the purpose of effecting any of the foregoing;
9.9. An order, judgment or decree shall be entered without the
application, approval or consent of any Borrower by any court of
competent jurisdiction, approving a petition seeking reorganization
of any Borrower or appointing a receiver, trustee or liquidator of
any Borrower or of all or a substantial part of the assets thereof,
and such order, judgment or decree shall continue unstayed and in
effect for any period of sixty (60) days;
then upon the occurrence of any such Event of Default, Bank One shall
have the option to cease disbursements under the Revolving Credit
Note and/or to terminate its commitment to lend and/or to terminate
its commitment to issue/renew Letter(s) of Credit and to declare all
amounts due under the Revolving Credit Note to be immediately due and
payable both as to principal and interest. The Notes shall then
become immediately due and payable without presentment, demand,
protest, or notice of any kind, all of which are hereby expressly
waived, anything contained herein or in the Notes to the contrary
notwithstanding. It is understood that the remedies of Bank One
hereunder shall be cumulative in nature rather than exclusive and
that the failure of Bank One to exercise its rights upon a Default by
Borrowers hereunder shall not be deemed to be a waiver by Bank One of
that Event of Default or any of its rights hereunder.
- 21 -
22
SECTION 10. DEFINITIONS.
------------------------
10.1 DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following meaning:
"Accounts" shall have the meaning provided in the Uniform Commercial
Code.
"Adjusted Eurodollar Rate" shall mean the rate per annum equal to the
following:
Eurodollar Rate
----------------------------
1 - Eurocurrency Liabilities
as adjusted to the next higher 1/16 of one percent.
"Adjusted Net Income" is net income reported in the Financial
Statements, minus distributions required for the payment of taxes,
plus Executive Option Noncash Expense, minus cash payments made
pursuant to MPW, Inc.'s 1994 Stock Option Plan and 1991 Stock Option
Plan.
"Affiliate" of a Person shall mean any other Person directly or
indirectly controlling, under common control with, or controlled by
such Person. An Affiliate of the Company shall include any officer,
director, or record or beneficial owner of 5% or more of the
outstanding capital stock of any class of the Company. For purposes
of the definition of Affiliate, "control" when used with respect to
any specific Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings relative to the
foregoing.
"Agreement" is defined in the preamble.
"Airplane Loan" is defined in Section 3.1.1.
"Airplane Note" is defined in Section 3.1.2.
"Audited Financial Statements" is defined in Section 6.2.
"Available Income" shall mean, as of the date of determination, the
sum of the Combined Companies' (i) net income or loss during the
period, and (ii) interest expense for the period, and (iii) Executive
Option Noncash Expense.
"Bank One" is defined in the preamble.
"Borrowers" is defined in the preamble.
"Borrowing Date" is defined in Section 4.1.1.
- 22 -
23
"Business Year" shall mean a year of 365 days.
"Code" means the Internal Revenue Code of 1986, as amended.
"Combined Tangible Net Worth" shall mean the Combined net worth of
Companies (after eliminating all inter-company accounts and all
effects of the Executive Option Noncash Expense), less all Combined
Intangible Assets of Companies. Net worth and Intangible Assets shall
be determined in accordance with generally accepted accounting
principles applied on a consistent basis; provided, however, that
combined tangible net worth shall include no appraisal surplus of any
type or description.
"Combined" shall include all Companies and all Subsidiaries and shall
mean, in reference to financial statements and reports, any
covenants, representations, warranties, or agreements of Companies
under this Agreement, or Definitions in this section, that the same
are prepared or determined in accordance with generally accepted
accounting principles applied on a consistent basis, but eliminating
all inter-company transactions on any combined statements or reports;
provided, however, that the interim financial statements and reports
referred to in Section 7.2 shall not require footnotes, and provided
further, however, the the interim financial statements and reports
referred to in Section 7.2 shall be subject to year end audit
adjustments.
"Commitment Fee" is defined in Section 2.1.4.
"Companies" is defined in the preamble.
"Contractual Obligation" shall mean for any Borrower any obligation,
covenant, representation, warranty or condition contained in any
evidence of indebtedness or any agreement or instrument under or
pursuant to which any evidence of indebtedness has been issued, or
any other material agreement, instrument or guaranty, to which any
Borrower is a party or by which any Borrower or any of its assets or
properties are bound.
"Conversion Option Loan" is defined in Section 2.3.1.
"Conversion Option Note" is defined in Section 2.3.2.
"Current Debt" shall mean any obligation for borrowed money (and any
negotiable instruments and drafts accepted representing extensions of
credit whether or not representing obligations for borrowed money)
payable on demand or within a period of one (1) year from the date of
the creation thereof.
"Current Maturities" shall mean the aggregate principal amount of
Borrowers' Funded Debt due within one (1) year from the date of
determination thereof.
"Debt" shall mean for any Borrower:
(i) any indebtedness for borrowed money which any Borrower
directly or indirectly
- 23 -
24
created, incurred, assumed, endorsed (other than for collection
in the ordinary course of business), discounted with recourse or
in respect of which any Borrower is otherwise directly or
indirectly liable including, without limitation, indebtedness in
effect guaranteed by any Borrower through any agreement
(contingent or otherwise) to purchase, repurchase or otherwise
acquire such indebtedness or any security therefore, or to
provide funds for the payment or discharge of such indebtedness
or any liability of the obligor of such indebtedness (whether in
the form of loans, advances, stock purchases, capital
contributions or otherwise) or to maintain the solvency or other
financial condition of the obligor of such indebtedness, or to
make payment for any products, materials or supplies or for any
transportation or service regardless of the nondelivery or
nonfurnishing thereof, in any such case if the purpose or intent
of such agreement is to provide assurance that such indebtedness
will be paid or discharged, or that any agreement relating
thereto will be complied with, or that the holders of such
indebtedness will be protected against loss in respect thereof,
(ii) any indebtedness, whether or not for borrowed money, which
any Borrower has incurred, assumed, guaranteed or with respect to
which any Borrower has become directly or indirectly liable
(including, without limitation, through any agreement of the
character referred to in clause (i) hereof) and which represents
or has been incurred to finance the purchase price of any
property or business, whether by purchase, consolidation, merger
or otherwise,
(iii) any indebtedness, whether or not for borrowed money, which
is secured by any mortgage, pledge, security interest, lien or
conditional sale or other title retention agreement existing on
any property owned or held by any Borrower subject thereto,
whether or not any Borrower has any personal liability for such
indebtedness.
"Domestic Banking Days" shall mean days other than Saturdays, Sundays
and other legal holidays or days on which the principal office of
Bank One is closed.
"Effective Date" is defined in Section 4.2.1.
"Environmental Laws" means any judgment, decree, order, law, license,
rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and
Recovery Act, the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, the Superfund Amendments and
Reauthorization Act of 1986, the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act or any other federal,
state or local statute, regulation, ordinance, order, or decree, or
common law, whether in existence now or hereafter enacted, and as
such may be amended from time to time, relating to health, safety, or
the environment.
"Equipment Loan " is defined in Section 3.3.1.
"Equipment Note" is defined in Section 3.3.2.
"Eurocurrency Liabilities" means the aggregate of the rates
(expressed as a decimal
- 24 -
25
fraction) of reserve requirements (including, without limitation,
basic, supplemental, marginal and emergency reserves under any
regulations of the Board of Governors of the Federal Reserve System
or other governmental authority having jurisdiction with respect
thereto), as now and from time to time hereafter in effect to which
Bank One is subject, dealing with reserve requirements prescribed for
eurocurrency funding maintained by a member bank of such system.
"Eurodollar Banking Days" shall mean days which are both Domestic
Banking Days and London Banking Days.
"Eurodollar Rate" "Eurodollar Rate" as of the date of each Eurodollar
Rate Loan means the rate of interest at which Bank One was offered
deposits in United States Dollars in the London Interbank Market on
the London Banking Day preceding the date of such Eurodollar Rate
Loan for delivery on the date of such Eurodollar Rate Loan, such
deposits to be for a like period as and in an amount equal to the
amount of such Eurodollar Rate Loan.
"Eurodollar Rate Loan" is defined in Section 4.1.1.
"Event of Default" shall mean any of the events specified in Section
9 provided that there has been satisfied any requirements in
connection with such event for the giving of notice, or the lapse of
time, or the happening of any further condition, event or act, and
"Default" shall mean any of such events, whether or not any such
requirement has been satisfied.
"Executive Option Liability" means any liability arising out of
grants of stock options to employees of any Borrower pursuant to MPW,
Inc.'s 1994 Stock Option Plan and 1991 Stock Option Plan.
"Executive Option Noncash Expense" means any noncash charges arising
out of grants of stock options to employees of any Borrower pursuant
to MPW, Inc.'s 1994 Stock Option Plan and 1991 Stock Option Plan.
"Financial Statements" shall mean for any period a balance sheet as
of the close of the period pursuant to Sections 7.1 and 7.2, an
operating statement for the period (including detailed expense
schedules in the form of Exhibit 10.1.FS), a statement of changes in
cash flows and a reconciliation of retained earnings, all prepared in
accordance with generally accepted accounting principles applied on a
consistent basis; provided, however, that the interim financial
statements and reports referred to in Section 7.2 shall not require
footnotes, and provided further, however, the the interim financial
statements and reports referred to in Section 7.2 shall be subject to
year end audit adjustments.
"Fixed Charges" shall mean, for any period, the aggregate of (i)
Companies' interest expense during the period, and (ii) Companies'
Current Maturities of long term debt and leases.
"Funded Debt" shall mean any Debt of Borrowers as defined in this
section, payable
- 25 -
26
more than one (1) year from the date of the creation thereof, which
under generally accepted accounting principles is shown on the
balance sheet as a liability, and shall include all capitalized lease
obligations of every type and description.
"Indebtedness" as applied to any Person, shall mean all obligations
of that Person which are included in clauses (i), (ii), (iii), (iv)
and (v) of the definition of Liabilities below, irrespective of
whether or not any such obligations also would be included within any
other clause of such definition.
"Intangible Assets" shall mean the aggregate amount of all goodwill,
patents, trademarks, franchises, licenses, excess of cost over book
value of assets acquired, deferred expenses (excluding prepaids) of
any type or description, appraisal surplus and any other assets
classified as intangible assets under generally accepted accounting
principles, which are carried as assets on the Financial Statements
of Borrowers.
"Interest Payment Date" is defined in Section 4.3.1.
"Interest Period" with respect to any Eurodollar Rate Loan or Term
Loan bearing interest at an Adjusted Eurodollar Rate, means:
(a) Initially, the period commencing on, as the case may be, the
Borrowing Date or conversion date with respect to a Eurodollar Rate
Loan or the Effective Date with respect to a Term Loan bearing
interest at an Adjusted Eurodollar Rate and ending one month, two
months, three months, six months or one year thereafter as selected
by Borrowers in their notice of borrowing as provided in Sections
4.1.1 and 4.2.1, as applicable, or its notice of conversion as
provided in Section 4.1.1.; and
(b) Thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Rate Loan or
Term Loan bearing interest at an Adjusted Eurodollar Rate and ending
one month, two months, three months, six months or one year
thereafter as selected by Borrowers by irrevocable notice to Bank One
pursuant to Section 4.1.1 or Section 4.2.1, as applicable, not later
than 10:30 a.m. Columbus, Ohio time on the Eurodollar Banking Day
immediately prior to the last day of the then current Interest Period
with respect to such Eurodollar Rate Loan or Term Loan bearing
interest at an Adjusted Eurodollar Rate; provided that the foregoing
provisions relating to Interest Periods are subject to the following:
(i) If any Interest Period would otherwise end on a day which is
not a Eurodollar Banking Day, that Interest Period shall be
extended to the next succeeding Eurodollar Banking Day, unless
the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Banking
Day;
(ii) No Interest Period with respect to a Eurodollar Rate Loan
may end after June 30, 1998 and no Interest Period with respect
to a Term Loan bearing interest at an Adjusted Eurodollar Rate
may end after June 30, 2003;
- 26 -
27
(iii) If Borrowers shall fail to give the applicable notice as
provided above in clause (b), Borrowers shall be deemed to have
selected a conversion of a Eurodollar Rate Loan into a Variable
Rate Loan as provided in Section 4.1.1 hereof or to have such
portion of Term Loan bear interest at the Variable Rate as
provided in Section 4.2.1 hereof;
(iv) Any Interest Period that begins on the last day of a
calendar month (Or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Eurodollar Banking Day of
a calendar month; and
(v) The Company shall select Interest Periods so as not to
require a prepayment (to the extent practicable) or a scheduled
payment of a Eurodollar Rate Loan or a Term Loan bearing interest
at an Adjusted Eurodollar Rate during an Interest Period for such
Eurodollar Rate Loan or Term Loan.
"Letter of Credit Agreement" means that certain Amended and Restated
Letter of Credit Agreement among Xxxxx X. Xxxxx, Xxxxx X. Black and
Bank One, Columbus, N.A. dated as of April 15, 1991.
"Letter of Credit Commitment" is defined in Section 2.2.1.
"Letter(s) of Credit" shall mean any letter(s) of credit, other than
the two letters of credit issued pursuant to the Letter of Credit
Agreement, issued by Bank One at the request of and for the benefit
of Borrowers from time to time under the Letter of Credit Commitment
and under terms and conditions acceptable to Bank One including, but
not limited to, any normal charges of Bank One, except that the
letter of credit fee shall not exceed 1% per annum of the stated
amount on each letter of credit.
"Liabilities" as applied to any Person shall mean: (i) all
obligations of that Person to repay or pay money borrowed from
another Person or the deferred portion of the purchase price of
services or property (other than inventory purchased in the ordinary
course of business unless evidenced by a note payable); (ii) all
obligations of that Person properly treated as capital lease
obligations or their equivalent under GAAP; (iii) all obligations of
that Person under bankers acceptances; (iv) all obligations of that
Person under letters of credit; (v) obligations of others which that
Person has directly or indirectly guaranteed, endorsed (otherwise
than for collection or deposit in the ordinary course of business),
discounted or sold with recourse or agreed (contingently or
otherwise) to purchase or repurchase or otherwise acquire, or in
respect of which that Person has agreed to supply or advance funds
(whether by way of loan, stock purchase, capital contribution or
otherwise) or otherwise to become directly or indirectly liable; (vi)
all obligations evidenced or secured by any mortgage, pledge, lien or
conditional sale or other title retention agreement to which any
property or asset owned or held by that Person is subject, whether or
not the obligation evidenced or secured thereby shall have been
assumed; and (vii) all other items (except items of capital stock,
capital surplus and retained earnings) which in accordance with GAAP
would be included in determining total liabilities as shown on the
liability side of a balance sheet of that Person as of the
- 27 -
28
date Liabilities is to be determined.
"Lien" means any mortgage, deed of trust, pledge, charge,
encumbrance, lien (statutory or other) or security interest of any
nature whatsoever (including those created by, arising under or
evidenced by any conditional sale or other title retention
agreement), and any assignment or deposit arrangement intended or
having the effect of security.
"Loans" means, jointly and severally, the Airplane Loan, the
Conversion Option Loan, the Equipment Loan, the Revolving Credit
Loan, and the Weston Acquisition Loan.
"London Banking Days" shall mean days on which transactions are
carried out in the London Interbank Market.
"MPW Reimbursement Obligations" is defined in Section 3.5.
"MPW Mortgage Guaranty" is defined in Section 3.4.
"Notes" means, jointly and severally, the Airplane Note, the
Conversion Option Note, the Equipment Note, the Revolving Credit
Note, and the Weston Acquisition Note.
"Opinion Borrowers" means, jointly and severally, the Borrowers other
than MPW LTD.
"Permitted Liens" shall mean:
(i) Liens securing taxes, assessments, fees or other governmental
charges or levies, or the claims of materialmen, mechanics, carriers,
warehousemen, landlords, and other similar Persons;
(ii) Liens incurred or deposits made in the ordinary course of
business (a) in connection with xxxxxxx'x compensation, unemployment
insurance, social security and other similar laws, or (b) to secure
the performance of bids, tenders, sales, contracts, public or
statutory obligations, customs, appeal and performance bonds, or (c)
other similar obligations not incurred in connection with the
borrowing of money, the obtaining of advances, or the payment of the
deferred purchase price of property;
(iii) Reservations, exceptions, encroachments, easements, rights of
way, covenants, conditions, restriction, leases and other similar
title exceptions or encumbrances affecting real property, provided
they do not in the aggregate materially detract from the value of
such properties or materially interfere with their use in the
ordinary conduct of Borrowers' business;
(iv) Liens in favor of Bank One;
(v) Purchase money liens in an aggregate amount not to exceed
$500,000.00;
(vi) Liens in respect of judgments or awards with respect to, which
the Borrowers are, in good faith, prosecuting an appeal or proceeding
for review and with respect to which a
- 28 -
29
stay of execution upon such appeal or proceeding for review has been
granted; and
(vi) Notice filings by any creditor in respect of any operating
leases.
"Person" shall mean and include an individual, sole proprietorship,
trust, partnership, corporation, unincorporated organization and a
government or any department or agency thereof.
"Plan" shall mean any plan, benefit or program of benefits or
perquisites which has been or is being currently provided to one or
more employees or which may in the future be established, maintained,
or contributed to by any of the Borrowers (or in which any Borrower
or any of its employees participate, which provides benefits to
employees or former employees of a Borrower), including any "employee
benefit plan" an defined in ERISA, any payroll practice or personnel
policy, and any system of governmental or other benefits to the costs
of which any of the Borrowers contributes by any means.
"Pollutants" is defined in Section 7.16.
"Premises" shall mean any premises which have at any time been owned
or occupied by or have been under lease to any Borrower or any
Subsidiary.
"Prime Rate" shall mean the Prime Rate of Bank One as such rate is
announced from time to time by Bank One, which rate may not be the
lowest or best rate offered by Bank One.
"Requirement of Law" shall mean for any Borrower, any term,
condition, or provision of any law, rule, judgment, regulation,
order, writ, injunction or decree of any court or government,
domestic or foreign, or any ruling of any arbitrator to which any
Borrower is a party or by which any Borrower or any of its assets or
property is bound or affected or from which any Borrower derives
benefits, and if any Borrower is a corporation, its charter
documents, code of regulations and by-laws.
"Revolving Credit Commitment" is defined in Section 2.1.1.
"Revolving Credit Loan" is defined in Section 2.1.1.
"Revolving Credit Note" is defined in Section 2.1.3.
"Securities" shall mean any authorized or outstanding shares of
capital stock or any bonds, debentures, notes or other forms of
indebtedness or equity interest in any corporation.
"State" shall mean the State of Ohio.
"Subordinated Debt" shall mean any Funded Debt of Borrowers which, as
evidenced by the documentation thereof in a form acceptable to Bank
One, is satisfactorily subordinated to all indebtedness of Borrowers
to Bank One, in the sole opinion of Bank One.
- 29 -
30
"Subsidiary" shall mean, with respect to the Companies, any
corporation of which more than 50% of the outstanding stock having
ordinary voting power to elect a majority of the board of directors
of such corporation is at the time directly or indirectly owned by
the Companies, or by one or more of their Subsidiaries, or by the
Companies and one or more of their Subsidiaries taken together.
"Term Loan" means, jointly and severally, the Airplane Loan, the
Conversion Option Loan, the Equipment Loan, and the Weston
Acquisition Loan.
"Term Note" means, jointly and severally, the Airplane Note, the
Conversion Option Note, the Equipment Note, and the Weston
Acquisition Note.
"Total Combined Liabilities" shall mean all Combined Liabilities of
the Companies (after eliminating all inter-company accounts and any
Executive Option Liabilities), except any non-current provision for
deferred federal income taxes, all determined in accordance with
generally accepted accounting principles applied on a consistent
basis. For purposes of this definition of Total Combined Liabilities,
"Combined Liabilities" means long term liabilities plus Current
Maturities of long term debt and leases plus the outstanding
principal balance on the Revolving Credit Note.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as
adopted in the State, as amended from time to time.
"Unused Commitment" is defined in Section 2.1.4.
"Variable Rate Loan" is defined in Section 4.1.1.
"Weston Acquisition Loan" is defined in Section 3.2.1.
"Weston Acquisition Note" is defined in Section 3.2.2.
10.2 GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. All accounting terms not
specifically defined herein shall have the meanings of such terms as
used in accordance with generally accepted accounting principles in
the United States applied on a consistent basis.
SECTION 11. MISCELLANEOUS.
--------------------------
11.1 SUCCESSORS AND ASSIGNS. All covenants, representations, warranties
and agreements in this Agreement made by or on behalf of the parties
hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or
not, provided that the rights and obligations of the parties under
this Agreement shall not be assignable without the prior written
consent of the other parties hereof. However, Bank One may assign
this Agreement and related documents at any time, without the consent
of Borrowers, after the occurrence of an Event of Default.
- 30 -
31
11.2 NOTICE. Notice shall be deemed to have been properly given to
Borrowers when deposited in the United States mail, registered or
certified, postage prepaid, and addressed to Borrowers at 0000
Xxxxxxxxx Xxxx, XX, Xxxxxx, Xxxx 00000 whether or not the same is
actually received by Borrowers. Any communication to Bank One shall
be deemed properly given if similarly mailed to the address of its
Main Office at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000. Such
addresses may be changed upon giving notice to the other party as
provided herein.
11.3 WAIVER. No delay on the part of Bank One in exercising any right,
power or privilege granted hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right,
power or privilege preclude any other or further exercise thereof.
The rights and remedies herein expressly specified, are cumulative
and not exclusive of any other rights and remedies which Bank One
would otherwise have.
11.4 DURATION. This Agreement and all covenants, agreements,
representations and warranties made herein and in the various
certificates delivered pursuant hereto shall survive the making of
the loan(s) by Bank One and the execution and delivery to Bank One by
Borrowers of the Notes and shall continue in full force and effect
until Borrowers no longer retain the right to borrow hereunder and
the Notes are paid in full.
11.5 GOVERNING LAW AND JURISDICTION. This Agreement shall in all respects
be interpreted in accordance with and enforceable under the laws of
the State of Ohio. In event of a dispute hereunder, it is agreed that
exclusive venue lies in a Court of competent jurisdiction in Franklin
County, Ohio.
11.6 AMENDMENTS. Notwithstanding any provision to the contrary contained
herein, any term of this Agreement may be amended by consent of the
parties; provided that no amendment, modification or waiver of any
provision of this Agreement or of the Notes shall be effective unless
the same shall be in writing and signed by Borrowers and Bank One.
11.7 SEVERABILITY. In the event that any one or more of the provisions
contained in this Agreement or in the Notes shall, for any reason, be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement or the Notes.
11.8 CAPTIONS. Section captions used in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
11.9 ILLEGALITY. Notwithstanding any other provision in this Agreement, in
the event that it becomes unlawful for Bank One to honor its
obligation to make or maintain loan(s) hereunder, then Bank One shall
promptly notify the Borrowers thereof and Bank One's obligation to
make or maintain loan(s) hereunder shall be suspended until such time
as Bank One may again make and maintain such affected loan(s) and the
Borrowers shall, upon the request of Bank One on the date specified,
prepay any of such loan(s) then outstanding together with accrued
interest and any other amounts due under the Notes and this
Agreement.
- 31 -
32
11.10 ENTIRE AGREEMENT. This Agreement together with all other documents
executed in connection with this Agreement constitute the ONLY
agreement and understanding between Bank One and Borrowers and
supersede any and all prior agreements and understandings, oral or
written, relating to this Agreement and all other documents executed
in connection with this Agreement. Borrowers acknowledge that they
have not relied on any oral promises or representations by Bank One
other than those set forth in this Agreement and all other documents
executed in connection with this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the day and year
first above written.
MPW Industrial Services, Inc. Bank One, Columbus, N.A.
By: /s/ XXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXXX
------------------------------ ----------------------------
Its: Chairman of the Board and CEO Its: Vice President
----------------------------- ---------------------------
Date: August 9, 1996 Date: August 9, 1996
---------------------------- --------------------------
MPW Industrial Services, LTD. MPW Management Services Corp.
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXXX X. XXXXXXX
------------------------------ ----------------------------
Its: Vice President and CFO Its: Vice President and CFO
----------------------------- ---------------------------
Date: August 9, 1996 Date: August 9, 1996
---------------------------- --------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: /s/ XXXXXX X. XXXXXXX By: /s/ XXXXX X. XXXXXXXXXX
------------------------------ ----------------------------
Its: Vice President and CFO Its: Vice President, Treasurer
----------------------------- and Assistant Secretary
---------------------------
Date: August 9, 1996 Date: August 9, 1996
---------------------------- --------------------------
Pro Kleen Industrial Services, Inc.
By: /s/ XXXXXX X. XXXXXXX
------------------------------
- 32 -
33
Its: Vice President, Secretary
and Treasurer
-----------------------------
Date: August 9, 1996
----------------------------
- 33 -
34
SCHEDULE OF EXHIBITS
to
LOAN AGREEMENT DATED AS OF JUNE 30, 1996
by an between
Bank One, Columbus, NA
and
MPW Industrial Services, Inc.
MPW Industrial Services, LTD.
MPW Management Services Corp.
Weston Engineering, Inc.
Pro Kleen Industrial Services, Inc.
And
Aquatech Environmental Services, Inc.
Exhibit 2.1.3 Form of Revolving Credit Note
Exhibit 2.2 Existing Letters of Credit Under Revolving
Credit Commitment
Exhibit 2.3.2 Form of Conversion Option Note
Exhibit 3.1 Form of Airplane Note
Exhibit 3.2 Form of Weston Acquisition Note
Exhibit 3.3 Form of Equipment Note
Exhibit 3.5 Certain Letters of Credit
Exhibit 4.1.2 Interest Rate on Revolving Credit Loans
Exhibit 4.2.2 Interest Rate on Term Loans
Exhibit 6.17 Self Insurance
Exhibit 10.1.FS Form of Detailed Expense Schedules
- 34 -
35
EXHIBIT 2.1.3
REVOLVING CREDIT NOTE
$12,000,000 Columbus, Ohio August __, 1996
On or before June 30, 1998, for value received, the undersigned, jointly
and severally, hereby promises to pay to the order of Bank One, Columbus, NA
(the "Lender") or its assigns, as further provided herein, the principal amount
of Twelve Million Dollars ($12,000,000) or, if such principal is less, the
aggregate unpaid principal amount of all Revolving Credit Loans made by the
Lender to the Borrowers pursuant to the Loan Agreement referred to in Section 1
hereof, together with interest on the unpaid principal balance from time to time
outstanding hereunder until paid in full at the rates determined in accordance
with the provisions of the Loan Agreement payable quarterly on the last day of
each fiscal quarter commencing September 30, 1996 and thereafter, on each
December 31, March 31, June 30, and September 30. Both principal and interest
are payable in federal funds or other immediately available money of the United
States of America at the Main Office of the Lender, 000 Xxxx Xxxxx Xxxxxx,
Xxxxxxxx, Xxxx.
Section 1. Loan Agreement. This Revolving Credit Note is the Revolving
Credit Note referred to in the Loan Agreement dated as of June 30, 1996 (the
"Agreement") between and among the undersigned and the Lender, as the same may
be amended, modified or supplemented from time to time, which Agreement, as
amended, is incorporated by reference herein. All capitalized terms used herein
shall have the same meanings as are assigned to such terms in the Agreement.
This Revolving Credit Note is entitled to the benefits of and is subject to the
terms, conditions and provisions of the Agreement. The Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events, and also for repayments and reborrowings on
account of the principal hereof prior to maturity upon the terms, conditions and
provisions specified therein.
Section 2. Setoff. Any and all moneys now or at any time hereafter owing
to the undersigned from the holder hereof, are hereby pledged for the security
of this and all other Indebtedness from the undersigned to the holder hereof,
and may, upon the occurrence and during the continuation of any Event of
Default, be paid and applied thereon whether such Indebtedness be then due or is
to become due, except for (a) funds necessary to cover checks for the payment of
taxes or employee contributions in which the undersigned has no beneficial
interest issued to third parties prior to the date any setoff is claimed by the
Lender and (b) accounts maintained, but not substantially overfunded, for the
payment of taxes or employee contributions in which the unsersigned has no
beneficial interest.
MPW Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
- 35 -
36
Date:
----------------------
MPW Industrial Services, LTD. MPW Management Services Corp.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Pro Kleen Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
- 36 -
37
EXHIBIT 2.2
EXISTING LETTERS OF CREDIT UNDER REVOLVING CREDIT COMMITMENT
1. Account Party: MPW Industrial Services, Inc.; Amount: $100,000; Beneficiary:
American Home Assurance Co.
2. Account Party: MPW Industrial Services, Inc.; Amount: $652,000; Beneficiary:
American Home Assurance Co.
3. Account Party: MPW Industrial Services, Inc.; Amount: $550,000; Beneficiary:
Reliance National Indemnity Corp.
- 37 -
38
EXHIBIT 2.3.2
CONVERSION OPTION NOTE
$________________ Columbus, Ohio ________ __, 19__
For value received, the undersigned, jointly and severally, hereby promises to
pay to the order of Bank One, Columbus, NA (the "Lender") or its assigns, as
further provided herein, the principal amount of ___________________________ in
_______ consecutive quarterly installments of principal in the amounts provided
for in Section 3 hereof, the first of such installment to be due and payable on
_____________________, 19___ and the remaining of such installments to be due
and payable quarterly on the last day of each March, June, September and
December until June 30, 2003 when any remaining unpaid principal and interest
shall be paid in full. Interest on the unpaid principal balance hereunder at the
rates of interest determined in accordance with the Loan Agreement referred to
in Section 1 hereof shall be due and payable quarterly on the last day of each
March, June, September, and December commencing on the last day of the quarter
in which this Term Note is executed and delivered by the undersigned to the
Lender. Both principal and interest are payable in federal funds or other
immediately available money of the United States of America at the Main Office
of the Lender, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx.
Section 1. Loan Agreement. This Term Note is the Term Note referred to in the
Loan Agreement dated as of June 30, 1996 (the "Agreement") between and among the
undersigned and the Lender, as the amended, modified or supplemented from time
to time, same may be which Agreement, as amended, is incorporated by reference
herein. All capitalized terms used herein shall have the same meanings as are
assigned to such terms in the Agreement. This Term Note is entitled to the
benefits of and is subject to the terms, conditions and provisions of the
Agreement. The Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events,
and also for repayments of principal prior to maturity hereof upon the terms,
conditions and provisions specified therein.
Section 2. Prepayments. Subject to the provisions of the Agreement, the
principal of this Term Note may be prepaid in whole at any time or in part from
time to time in any amount, provided that each partial prepayment shall be
applied to the principal installments in the inverse order of their respective
maturities. Each prepayment shall be accompanied by the payment of accrued
interest on the principal so prepaid to the date of such prepayment and such
additional amounts as may be due pursuant to the Agreement.
Section 3. Principal Payments. The principal hereof shall be payable in
consecutive quarterly installments on the last day of each March, June,
September and December, commencing ______________________, 19____ in the amount
of $_________________________ until June 30, 2003, at which time all remaining
unpaid principal shall be paid in full.
- 38-
39
Section 4. Setoff. Any and all moneys now or at any time hereafter owing to the
undersigned from the holder hereof, are hereby pledged for the security of this
and all other Indebtedness from the undersigned to the holder hereof, and may,
upon the occurrence and during the continuation of any Event of Default, be paid
and applied thereon whether such Indebtedness be then due or is to become due,
except for (a) funds necessary to cover checks for the payment of taxes or
employee contributions in which the undersigned has no beneficial interest
issued to third parties prior to the date any setoff is claimed by the Lender
and (b) accounts maintained, but not substantially overfunded, for the payment
of taxes or employee contributions in which the undersigned has no beneficial
interest.
MPW Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
MPW Industrial Services, LTD. MPW Management Services Corp.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Pro Kleen Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
- 39-
40
EXHIBIT 3.1
AMENDED AND RESTATED
AIRPLANE NOTE
$2,350,000 Columbus, Ohio August __, 1996
For value received, the undersigned, jointly and severally, hereby promises to
pay to the order of Bank One, Columbus, NA (the "Lender") or its assigns, as
further provided herein, the principal amount of Two Million Three Hundred Fifty
Thousand and no/100 Dollars ($2, 350,000.00) in consecutive quarterly
installments of principal in the amounts provided for in Section 3 hereof, the
first of such installment to be due and payable on September 30, 1996, and the
remainder of such installments to be due and payable quarterly on the last day
of each March, June, September or December until December 31, 2002 when any
remaining unpaid principal and interest shall be paid in full. Interest on the
unpaid principal balance hereunder at the rates of interest determined in
accordance with the Loan Agreement referred to in Section 1 hereof shall be due
and payable quarterly on the last day of each March, June, September, and
December commencing on the last day of the quarter in which this Aircraft Note
is executed and delivered by the undersigned to the Lender. Both principal and
interest are payable in federal funds or other immediately available money of
the United States of America at the Main Office of the Lender, 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx.
Section 1. Loan Agreement. This Aircraft Note is the Aircraft Note referred to
in the Loan Agreement dated as of June 30, 1996 (the "Agreement") between and
among the undersigned and the Lender, as is amended, modified or supplemented
from time to time, same may be which Agreement, as amended, is incorporated by
reference herein. All capitalized terms used herein shall have the same meanings
as are assigned to such terms in the Agreement. This Aircraft Note is entitled
to the benefits of and is subject to the terms, conditions and provisions of the
Agreement. The Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events,
and also for repayments of principal prior to maturity hereof upon the terms,
conditions and provisions specified therein.
Section 2. Prepayments. Subject to the provisions of the Agreement, the
principal of this Aircraft Note may be prepaid in whole at any time or in part
from time to time in any amount, provided that each partial prepayment shall be
applied to the principal installments in the inverse order of their respective
maturities. Each prepayment shall be accompanied by the payment of accrued
interest on the principal so prepaid to the date of such prepayment and such
additional amounts as may be due pursuant to the Agreement.
Section 3. Principal Payments. The principal hereof shall be payable in
consecutive quarterly installments on the last day of each March, June,
September and December, commencing September 30, 1996 in the amount of Seventy
Five Thousand Dollars ($75,000.00) until December 31, 2002, at which time all
remaining unpaid principal shall be paid in full.
- 40 -
41
Section 4. Setoff. Any and all moneys now or at any time hereafter owing to the
undersigned from the holder hereof, are hereby pledged for the security of this
and all other Indebtedness from the undersigned to the holder hereof, and may,
upon the occurrence and during the continuation of any Event of Default, be paid
and applied thereon whether such Indebtedness be then due or is to become due,
except for (a) funds necessary to cover checks for the payment of taxes or
employee contributions in which the undersigned has no beneficial interest
issued to third parties prior to the date any setoff is claimed by the Lender
and (b) accounts maintained, but not substantially overfunded, for the payment
of taxes or employee contributions in which the undersigned has no beneficial
interest.
Section 5. Amendment and Restatement. This Aircraft Note is an amendment and
restatement of the Aircraft Note dated ________________________, 1995, and not a
novation.
MPW Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
MPW Industrial Services, LTD. MPW Management Services Corp.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Pro Kleen Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
- 41 -
42
EXHIBIT 3.2
WESTON ACQUISITION NOTE
$2,800,000 Columbus, Ohio August __, 1996
For value received, the undersigned, jointly and severally, hereby promises to
pay to the order of Bank One, Columbus, NA (the "Lender") or its assigns, as
further provided herein, the principal amount of Two Million Eight Hundred
Thousand Dollars ($2,800,000) on or before July 31, 2003. Interest on the unpaid
principal balance hereunder at the rates of interest determined in accordance
with the Loan Agreement referred to in Section 1 hereof shall be due and payable
quarterly on the last day of each March, June, September, and December
commencing on the last day of the quarter in which this Weston Acquisition Note
is executed and delivered by the undersigned to the Lender. Both principal and
interest are payable in federal funds or other immediately available money of
the United States of America at the Main Office of the Lender, 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx.
Section 1. Loan Agreement. This Weston Acquisition Note is the Weston
Acquisition Note referred to in the Loan Agreement dated as of June 30, 1996,
(the "Agreement") between and among the undersigned and the Lender, as is
amended, modified or supplemented from time to time, same may be which
Agreement, as amended, is incorporated by reference herein. All capitalized
terms used herein shall have the same meanings as are assigned to such terms in
the Agreement. This Weston Acquisition Note is entitled to the benefits of and
is subject to the terms, conditions and provisions of the Agreement. The
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events, and also for
repayments of principal prior to maturity hereof upon the terms, conditions and
provisions specified therein.
Section 2. Prepayments. Subject to the provisions of the Agreement, the
principal of this Weston Acquisition Note may be prepaid in whole at any time or
in part from time to time in any amount, provided that each partial prepayment
shall be applied to the principal installments in the inverse order of their
respective maturities. Each prepayment shall be accompanied by the payment of
accrued interest on the principal so prepaid to the date of such prepayment and
such additional amounts as may be due pursuant to the Agreement.
Section 3. Principal Payments. The principal hereof shall be payable in
consecutive quarterly installments on the last day of each March, June,
September and December, commencing September 30, 1996 in the amount of One
Hundred Thousand Dollars ($100,000.00) until July 31, 2003, at which time all
remaining unpaid principal shall be paid in full.
Section 4. Setoff. Any and all moneys now or at any time hereafter owing to the
undersigned from the holder hereof, are hereby pledged for the security of this
and all other Indebtedness from the undersigned to the holder hereof, and may,
upon the occurrence and during the continuation of any Event of Default, be paid
and applied thereon whether such Indebtedness be then due or is
- 42 -
43
to become due, except for (a) funds necessary to cover checks for the payment of
taxes or employee contributions in which the undersigned has no beneficial
interest issued to third parties prior to the date any setoff is claimed by the
Lender and (b) accounts maintained, but not substantially overfunded, for the
payment of taxes or employee contributions in which the undersigned has no
beneficial interest.
MPW Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
MPW Industrial Services, LTD. MPW Management Services Corp.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Pro Kleen Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
- 43 -
44
EXHIBIT 3.3
EQUIPMENT NOTE
$1,800,000 Columbus, Ohio August __, 1996
For value received, the undersigned, jointly and severally, hereby promises to
pay to the order of Bank One, Columbus, NA (the "Lender") or its assigns, as
further provided herein, the principal amount of One Million Eight Hundred
Thousand Dollars ($1,800,000) on or before July 31, 2006. Interest on the unpaid
principal balance hereunder at the rates of interest determined in accordance
with the Loan Agreement referred to in Section 1 hereof shall be due and payable
quarterly on the last day of each March, June, September, and December
commencing on the last day of the quarter in which this Equipment Note is
executed and delivered by the undersigned to the Lender. Both principal and
interest are payable in federal funds or other immediately available money of
the United States of America at the Main Office of the Lender, 000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx.
Section 1. Loan Agreement. This Equipment Note is the Equipment Note referred to
in the Loan Agreement dated as of June 30, 1996, (the "Agreement") between and
among the undersigned and the Lender, as is amended, modified or supplemented
from time to time, same may be which Agreement, as amended, is incorporated by
reference herein. All capitalized terms used herein shall have the same meanings
as are assigned to such terms in the Agreement. This Equipment Note is entitled
to the benefits of and is subject to the terms, conditions and provisions of the
Agreement. The Agreement, among other things, contains provisions for
acceleration of the maturity hereof upon the happening of certain stated events,
and also for repayments of principal prior to maturity hereof upon the terms,
conditions and provisions specified therein.
Section 2. Prepayments. Subject to the provisions of the Agreement, the
principal of this Equipment Note may be prepaid in whole at any time or in part
from time to time in any amount, provided that each partial prepayment shall be
applied to the principal installments in the inverse order of their respective
maturities. Each prepayment shall be accompanied by the payment of accrued
interest on the principal so prepaid to the date of such prepayment and such
additional amounts as may be due pursuant to the Agreement.
Section 3. Principal Payments. The principal hereof shall be payable in
consecutive quarterly installments on the last day of each March, June,
September and December, commencing September 30, 1996 in the amount of Forty
Five Thousand Dollars ($45,000.00) until July 31, 2006, at which time all
remaining unpaid principal shall be paid in full.
Section 4. Setoff. Any and all moneys now or at any time hereafter owing to the
undersigned from the holder hereof, are hereby pledged for the security of this
and all other Indebtedness from the undersigned to the holder hereof, and may,
upon the occurrence and during the continuation of any Event of Default, be paid
and applied thereon whether such Indebtedness be then due or is to become due,
except for (a) funds necessary to cover checks for the payment of taxes or
- 44 -
45
employee contributions in which the undersigned has no beneficial interest
issued to third parties prior to the date any setoff is claimed by the Lender
and (b) accounts maintained, but not substantially overfunded, for the payment
of taxes or employee contributions in which the undersigned has no beneficial
interest.
MPW Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
MPW Industrial Services, LTD. MPW Management Services Corp.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: By:
------------------------ ----------------------------
Its: Its:
----------------------- ---------------------------
Date: Date:
---------------------- --------------------------
Pro Kleen Industrial Services, Inc.
By:
------------------------
Its:
-----------------------
Date:
----------------------
- 45 -
46
EXHIBIT 3.5
CERTAIN LETTERS OF CREDIT
See Exhibit A Hereto
- 46 -
47
EXHIBIT 4.1.2
INTEREST ON REVOLVING CREDIT LOANS
(b) Interest on Variable Rate Loans. From its date, each Variable Rate
Loan shall bear interest on the unpaid principal balance at a fluctuating
rate per annum equal to the Prime Rate minus twenty-five (25) basis
points. Any change in the interest rate on a Variable Rate Loan due to a
change in the Prime Rate shall take effect on the date of such change in
the Prime Rate. The interest rate shall be adjusted downwards or upwards
on the first day of each fiscal quarter based upon the Companies'
quarterly Combined Financial Statements for the most recent fiscal quarter
which have been received by Bank One pursuant to Section 7.2 as follows:
(i) if the ratio of Total Combined Liabilities to Combined Tangible Net
Worth is greater than 0.25 to 1.00 and less than or equal to 1.00 to 1.00,
and if the ratio of Combined Available Income to Combined Fixed Charges is
greater than 1.75 to 1.00, then the interest rate on the Variable Rate
Loans shall be equal to the Prime Rate minus fifty (50) basis points per
annum, or (ii) if the ratio of Total Combined Liabilities to Combined
Tangible Net Worth is less than or equal to 0.25 to 1.00, and if the ratio
of Combined Available Income to Combined Fixed Charges is greater than
2.00 to 1.00, then the interest rate on the Variable Rate Loans shall be
equal to the Prime Rate minus sixty (60) basis points per annum.
(c) Interest on Eurodollar Rate Loans. From its date, each Eurodollar Rate
Loan shall bear interest during the period from the date thereof until and
including the maturity date thereof at a rate per annum equal to one
hundred twenty-five (125) basis points above the Adjusted Eurodollar Rate.
Borrowers also shall be obligated to pay with respect to each Eurodollar
Rate Loan such additional amounts as shall be determined pursuant to
Section 4.7. The interest rate shall be adjusted downwards or upwards on
the first day of each fiscal quarter based upon the Companies' quarterly
Combined Financial Statements for the most recent fiscal quarter which
have been received by Bank One pursuant to Section 7.2 as follows: (i) if
the ratio of Total Combined Liabilities to Combined Tangible Net Worth is
greater than 0.25 to 1.00 and less than or equal to 1.00 to 1.00, and if
the ratio of Combined Available Income to Combined Fixed Charges is
greater than 1.75 to 1.00, then the interest rate on the Eurodollar Rate
Loans shall be at a rate per annum equal to one hundred (100) basis points
above the Adjusted Eurodollar Rate, or (ii) if the ratio of Total Combined
Liabilities to Combined Tangible Net Worth is less than or equal to 0.25
to 1.00, and if the ratio of Combined Available Income to Combined Fixed
Charges is greater than 2.00 to 1.00, then the interest rate on the
Eurodollar Rate Loans shall be equal at a rate per annum equal to ninety
(90) basis points above the Adjusted Eurodollar Rate.
- 47 -
48
EXHIBIT 4.2.2
INTEREST ON TERM LOANS
(b) Interest on Variable Rate Loans. From its date, each Term Loan or
portion thereof bearing interest at a Variable Rate shall bear interest on
the unpaid principal balance at a fluctuating rate per annum equal to the
Prime Rate. Any change in the interest rate on a Variable Rate Loan due to
a change in the Prime Rate shall take effect on the date of such change in
the Prime Rate. The interest rate shall be adjusted downwards or upwards
on the first day of each fiscal quarter based upon the Companies'
quarterly Combined Financial Statements for the most recent fiscal quarter
which have been received by Bank One pursuant to Section 7.2 as follows:
(i) if the ratio of Total Combined Liabilities to Combined Tangible Net
Worth is greater than 0.25 to 1.00 and less than or equal to 1.00 to 1.00,
and if the ratio of Combined Available Income to Combined Fixed Charges is
greater than 1.75 to 1.00, then the interest rate on the Variable Rate
Loans shall be equal to the Prime Rate minus twenty-five (25) basis points
per annum, or (ii) if the ratio of Total Combined Liabilities to Combined
Tangible Net Worth is less than or equal to 0.25 to 1.00, and if the ratio
of Combined Available Income to Combined Fixed Charges is greater than
2.00 to 1.00, then the interest rate on the Variable Rate Loans shall be
equal to the Prime Rate minus thirty-five (35) basis points per annum.
(c) Interest on Eurodollar Rate Loans. From its date, each Term Loan or
portion thereof bearing interest at an Adjusted Eurodollar Rate shall bear
interest during the period from the date thereof until and including the
maturity date thereof at a rate per annum equal to one hundred fifty (150)
basis points above the Adjusted Eurodollar Rate. Borrowers also shall be
obligated to pay with respect to each Eurodollar Rate Loan such additional
amounts as shall be determined pursuant to Section 4.7. The interest rate
shall be adjusted downwards or upwards on the first day of each fiscal
quarter based upon the Companies' quarterly Combined Financial Statements
for the most recent fiscal quarter which have been received by Bank One
pursuant to Section 7.2 as follows: (i) if the ratio of Total Combined
Liabilities to Combined Tangible Net Worth is greater than 0.25 to 1.00
and less than or equal to 1.00 to 1.00, and if the ratio of Combined
Available Income to Combined Fixed Charges is greater than 1.75 to 1.00,
then the interest rate on the Eurodollar Rate Loans shall be at a rate per
annum equal to one hundred twenty-five (125) basis points above the
Adjusted Eurodollar Rate, or (ii) if the ratio of Total Combined
Liabilities to Combined Tangible Net Worth is less than or equal to 0.25
to 1.00, and if the ratio of Combined Available Income to Combined Fixed
Charges is greater than 2.00 to 1.00, then the interest rate on the
Eurodollar Rate Loans shall be equal at a rate per annum equal to one
hundred fifteen (115) basis points above the Adjusted Eurodollar Rate.
- 48 -
49
EXHIBIT 6.17
SELF INSURANCE
POLICY TYPE DEDUCTIBLE
General Liability 250,000
Large Fleet 100,000
Umbrella 10,000
Worker's Compensation 25,000
Pollution 500,000
Auto Pollution 250,000
Property/Contractors Equip. 1,000
Excess Worker's Comp. (Ohio) 350,000
Small Fleet 25,000
Aviation 250,000
Employee Dishonesty 25,000
- 49 -
50
EXHIBIT 10.1.FS
FORM OF DETAILED EXPENSE SCHEDULES
- 50 -
