Exhibit 99.4
CONDITIONAL CONSENT AGREEMENT
This CONDITIONAL CONSENT AGREEMENT ("this Consent Agreement") is made
as of the 27th day of December, 2002, by and among X.X. XXXXX CORPORATION, an
Ohio corporation (the "Company"), and METROPOLITAN LIFE INSURANCE COMPANY, a New
York stock insurance company ("Metropolitan").
RECITALS:
A. The Company and Metropolitan entered into a letter agreement dated
July 5, 1994 (the "Note Purchase Agreement"), under which Metropolitan loaned
$15,000,000 to the Company, as evidenced by the 9.70% Senior Promissory Note,
dated July 4, 1994 and due July 5, 2004, in a face amount of $15,000,000, made
by the Company to the order of Metropolitan (the "Note" and together with the
Note Purchase Agreement, the "Loan Documents").
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Loan Documents.
C. As of the date of this Agreement, The Huntington National Bank
("Huntington") has extended credit to the Company in the principal amount of
$32,000,000 (the "Huntington Loan"). In connection with this extension of
credit, Huntington has requested, and the Company desires, that the Company
provide to Huntington, as the collateral agent for itself and Metropolitan, a
first security interest (the "Lien") over certain equipment, fixtures, inventory
and receivables or the Company described in a Security Agreement between the
Company and the Huntington, as collateral agent for itself and Metropolitan,
dated December 27, 2002 .
D. Section 8.2 of the Note restricts the Company from permitting any
liens on its property, subject to certain listed exceptions. The Company and
Metropolitan acknowledge that without a consent from Metropolitan, the Company's
granting of the Lien would cause a default under Section 8.2 of the Note.
E. Subject to the terms and conditions of this Consent Agreement,
Metropolitan, at the Company's request, has agreed to consent to the granting of
the Lien despite the requirements of Section 8.2 of the Note.
AGREEMENTS:
The parties agree as follows:
1. CONDITIONAL CONSENT.
(a) Subject to the terms and conditions of this Consent
Agreement, including, without limitation, Section 2 below, Metropolitan
as of the date of this Consent Agreement hereby consents to the
Company's granting of the Lien to Huntington, as collateral agent for
itself and Metropolitan, and waives the Company's breach, as of the
date of this
Consent Agreement, of the covenant contained in Section 8.2
(Limitations on Liens) of the Note (and the resulting Event of
Default), that would occur because of the granting of the Lien to
Huntington, as collateral agent for itself and Metropolitan.
(b) The consent and waiver in Section 1(a) above (the
"Consent") is limited to its express terms and shall not be deemed to
be a consent or waiver of any other Event of Default or default which
may have existed on or prior to the date hereof or any Event of Default
or default which may hereafter arise under any of Section 8.2 of the
Note or under any other provision of the Loan Documents. Further, the
granting of the Consent shall not be construed as an agreement or
understanding by Metropolitan to grant any other consent, waiver or
other accommodation in the future with respect to Section 8.2 of the
Note or any other provision of the Loan Documents. The execution,
delivery and performance by Metropolitan of this Consent Agreement
shall not constitute, or to be deemed to be or construed as, a waiver
of any right, power or remedy of Metropolitan, or a waiver of any
provision of the Loan Documents, except as expressly stated herein.
2. DELIVERY DATE; CONDITIONS PRECEDENT. The Consent is subject to the
Company's performance of the following (the date on which all have been
performed being the "Delivery Date"):
(a) The Company's secretary or treasurer shall have provided
to Metropolitan (i) a certified copy of the resolutions duly adopted by
the Company's board of directors in respect of this Consent Agreement
and the security agreement and other documents evidencing the Lien;
(ii) true and correct copies of the Company's current Articles of
Incorporation and Code of Regulations; and the Company's vice president
or chief financial officer shall have provided to Metropolitan a
certificate certifying that (A) after giving effect to the transactions
described herein and the Consent, no Event of Default or Default under
the Loan Documents or the documents relating to the Huntington loan
exists and (B) that the representations and warranties of the Company
under the Loan Documents are reaffirmed as of the Delivery Date,
subject only to variance therefrom acceptable to Metropolitan.
(b) Counsel to the Company shall have permitted Metropolitan
to rely on its written opinion to The Huntington National Bank with
respect to (i) the due authorization, execution, delivery and
enforceability of the security agreement evidencing the Lien, and (ii)
the attachment and perfection of the Lien which opinion shall, as to
such matters, be in form and substance satisfactory to Metropolitan.
(c) The Company shall have paid to Metropolitan in immediately
available funds, pursuant to Section 10 of the Note Purchase Agreement,
the reasonable fees and disbursements of Metropolitan and of
Metropolitan's counsel, incurred in connection with the preparation,
negotiation, execution and delivery of this Consent Agreement, the
security agreement and other documents evidencing the Lien and any
intercreditor agreement entered into between Metropolitan and
Huntington, for which Metropolitan has provided an invoice to the
Company.
(d) The Company shall have executed and delivered to
Metropolitan the security agreement and other documents evidencing the
Lien.
3. NO MODIFICATIONS. Notwithstanding the Consent, all of the terms and
conditions of the Loan Documents remain unchanged and in full force and effect.
The Consent and the other documents contemplated by this Consent Agreement shall
not be deemed to provide for or effect a repayment and re-advance of
Metropolitan's loan to the Company, it being the intention of both the Company
and Metropolitan that the indebtedness owing under the Loan Documents be and
hereby is the same indebtedness as that owing under the Loan Documents
immediately prior to the effectiveness hereof.
4. CONFIRMATION OF DEBT. The Company hereby affirms all of its
liabilities and obligations to Metropolitan under the Loan Documents and that
such liabilities and obligations are owed to Metropolitan. The Company further
acknowledges and agrees that as of the Delivery Date, it has no claims, defenses
or set-off rights against Metropolitan and there are no claims, defenses or
set-offs to the enforcement by Metropolitan of the liabilities and obligations
of the Company to it under the Loan Documents.
5. GOVERNING LAW; BINDING EFFECT. This Consent Agreement shall be
governed by and construed in accordance with the laws of the State of Ohio and
shall be binding upon and inure to the benefit of the Company, Metropolitan and
their respective successors and assigns.
6. COUNTERPARTS. This Consent Agreement may be executed in separate
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed a fully executed agreement.
7. WAIVER OF JURY TRIAL. EACH OF THE PARTIES TO THIS CONSENT AGREEMENT
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) ARISING OUT
OF OR RELATING TO THIS CONSENT AGREEMENT, THE LOAN DOCUMENTS, THE SECURITY
AGREEMENT AND OTHER DOCUMENTS EVIDENCING THE LIEN OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO HEREBY (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS CONSENT AGREEMENT BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATION IN THIS SECTION.
[No additional provisions are on this page; the next page
is the signature page.]
IN WITNESS WHEREOF, the Company and Metropolitan have signed this
Consent Agreement as of the date first written above.
X.X. XXXXX CORPORATION, an Ohio METROPOLITAN LIFE INSURANCE
corporation COMPANY, a New York stock insurance
company
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxxxx
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Title: Sr VP and CFO Title: Director
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