EXHIBIT 10.15(b)
LOAN AGREEMENT
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THIS AGREEMENT, dated as of June 30, 1999, is by and among MERIDIAN
NATIONAL CORPORATION, a Delaware corporation ("MNC"), OTTAWA RIVER STEEL CO., an
Ohio corporation ("ORS"), ENVIRONMENTAL PURIFICATION INDUSTRIES COMPANY, an Ohio
general partnership ("EPI"), on the one hand, and MNP CORPORATION, a Michigan
corporation ("Lender"), on the other hand.
R E C I T A L S :
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A. The Borrowers have requested Lender to extend credit to the Borrowers
in order to cure certain "Current Defaults" (as defined in a certain letter
agreement of April 29, 1999 from the Bank to MNC, ORS, and certain other
borrowers) under that certain Loan and Security Agreement, dated as of December
6, 1989 (as amended) by and among the Bank, MNC, ORS, and certain other
borrowers (the "Bank's Loan Agreement").
B. Lender is willing to extend to a loan to the Borrowers, upon the terms
and conditions set forth in this Agreement.
NOW, THEREFORE, the parties to this Agreement, in consideration of
their mutual covenants and agreements set forth in this Agreement and intending
to be legally bound by this Agreement, covenant and agree as follows:
ARTICLE I
DEFINITIONS
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1.01. Certain Definitions. In addition to other words and terms
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defined elsewhere in this Agreement, the following defined words and terms are
used in this Agreement as defined in this Section 1.01, except where the context
otherwise requires:
"Account(s)" shall mean all accounts, accounts receivable, contract
rights for the payment of money, chattel paper, and all other obligations and
receivables now owned or hereafter acquired by any of the Borrowers, whether now
existing or hereafter arising, as each of those terms are defined in the UCC.
"Affiliate" shall mean any Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with, another Person.
For purposes of this definition, a Person shall be deemed to be "controlled by"
another Person if such other Person possesses, directly or indirectly, power
either to (a) vote 10% or more of the securities having ordinary voting power
for the election of directors of such Person, or (b) direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise.
"Agreement" shall mean this Loan Agreement and all other agreements,
instruments and documents attached to this Agreement, referred to herein or
delivered in connection herewith as any or all of the foregoing may be amended,
modified or supplemented from time to time.
"ALTA Loan Policy" shall mean an ALTA Loan Policy of Title Insurance
issued by Chicago Title Company in the amount of $1,500,000, insuring Lender
that the Mortgage is a second priority lien upon the Mortgaged Property,
including insurance against construction liens upon the Mortgaged Property, and
containing no exceptions other than Permitted Liens.
"Bank" shall mean National Bank of Canada, a Canadian chartered bank.
"Base Rate" the "prime rate" of interest published from time to time
by The Wall Street Journal (the "WSJ"), as the base rate on corporate loans
posted by at least 75% of the nation's 30 largest banks, with any change in the
Base Rate to take effect on the day specified in the WSJ of such change of
"prime rate". In the event the WSJ discontinues publication of the "prime rate"
and a substitute or substitutes be provided therefor, then such substitute which
in the judgment of Lender most nearly provides the measurement now being
published by the WSJ shall be used as the Base Rate. In the event the WSJ
discontinues publication of the "prime rate" and no substitute is provided
therefor, any index, service or publication which in the judgment of Lender most
nearly provides the measurement now being provided by the WSJ shall be used in
place of the "prime rate" published by the WSJ.
"Borrowers" shall mean MNC, ORS, and EPI, collectively.
"Business Day" shall mean any day other than a Saturday, Sunday or
public holiday under the laws of the State of Michigan.
"Closing Date" shall mean the date of this Agreement.
"Collateral" shall have the meaning assigned to that term in the
Security Agreement.
"Debt" shall have the meaning assigned to that term in the Security
Agreement.
"Demand Promissory Notes" shall mean the Initial Demand Promissory
Note and the Additional Demand Promissory Note, collectively.
"Dividend" shall mean a distribution of cash, securities or other
property (other than common or preferred stock of any of the Borrowers) on
common or preferred stock of any of the Borrowers.
"Dollars" and the symbol "$" shall mean lawful money of the United
States of America.
"Environmental Laws" shall mean all federal, state or local
environmental laws, including but not limited to, the Clean Water Act, the Clean
Air Act, the Resource Conservation and Recovery Act, the Toxic Substances
Control Act and the Comprehensive Environmental Response, Compensation and
Liability Act ("Superfund"), as amended, and their state and local law
counterparts and all rules and regulations promulgated thereunder.
"Equipment" shall mean any and all equipment (as that term is defined
in the UCC) owned by any of the Borrowers now or at any time hereafter acquired,
wherever located, together with all accessories, parts, repairs, replacements,
substitutions, attachments, modifications, additions, improvements, upgrades and
accessions of, to or upon such items of equipment, now or at any time hereafter
acquired.
"Event of Default" shall mean any of the Events of Default described
in Section 6.01 of this Agreement.
"GAAP" shall mean generally accepted accounting principles in the
United States of America applied on a consistent basis and applied to both
classification of items and amounts, which shall include but not be limited to
the official interpretations thereof by the Financial Accounting Standards
Board, its predecessors and successors, as such accounting principles may be
amended from time to time.
"Guarantee" shall include any obligation of any Person guaranteeing or
in effect guaranteeing any liability or obligation of any other Person (the
"primary obligor") in any manner, whether directly or indirectly, orally or in
writing, including, without limiting the generality of the foregoing, through
issuance of a letter or other advice of credit, through the providing of any
"comfort letter" or other assurance as to the then current or future financial
condition, creditworthiness or ability to pay Indebtedness of any other Person,
or through any other agreement, contingent or otherwise.
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"Indebtedness" shall mean all items of indebtedness which in
accordance with GAAP should be included in determining total liabilities as
shown on the liability side of a balance sheet as at the date as of which
indebtedness is to be determined.
"Indebtedness for Money Borrowed" shall mean all Indebtedness (a)
which is (i) in respect of borrowed money advances, whether or not secured by a
purchase money mortgage or other Lien to secure all or part of the purchase
price of property subject to such mortgage or Lien, whether or not evidenced by
a note, bond, debenture, or similar evidence of Indebtedness, or (ii) owed to
any bank, insurance company or other financial institution in respect of an
extension of credit by such bank, insurance company or other financial
institution or (b) which consists of a Guarantee in respect of any of the
foregoing.
"Insurance" shall mean the insurance on the Collateral as described in
Section 4.01(e) hereof.
"Investment" in any Person shall include all investments, computed in
accordance with GAAP, made by stock or other securities, purchase, capital
contribution, loan, participation, advance, a Guarantee in respect of any
Indebtedness of such Person, or otherwise, or by agreeing or becoming or
remaining obligated to do any of the foregoing.
"Law" or "Laws" shall mean any law (including without limitation
common law), constitution, statute, treaty, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Official Body.
"Lender" shall mean MNP Corporation, a Michigan corporation.
"Lien" or "Liens" shall mean security interests, pledges, bailments,
leases (including financing leases), mortgages, the grant of a power to confess
judgment when exercisable by its terms, conditional sales and title retention
agreements, charges, encumbrances, liens, agreements to give or authorize the
filing of any financing statement or similar notice and security devices,
arrangements or similar interests in real or personal property.
"Loan" or "Loans" shall mean the loans as described in Article II
hereof.
"Loan Documents" shall mean this Agreement, the Demand Promissory
Notes, the Security Documents, and all other agreements, instruments,
certificates and documents contemplated by or
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delivered or required to be delivered under this Agreement or in connection
herewith, in each instance as the same may be amended, modified or supplemented
from time to time.
"Mortgage" shall mean the second mortgage dated as of the date hereof
from ORS to Lender with respect to the Mortgaged Property.
"Mortgaged Property" shall have the meaning set forth in the Mortgage.
"Official Body" shall mean any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of any government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"Permitted Liens" shall mean those liens and encumbrances disclosed on
Exhibit B attached hereto.
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"Person" shall mean an individual, corporation, partnership (general
or limited), trust, business trust, unincorporated association, joint venture,
joint-stock company, limited liability company, Official Body or any other
entity of whatever nature.
"Potential Event of Default" shall mean the occurrence of an event or
the existence of a condition or an act or omission which, with (a) the lapse of
time prescribed by Article VI hereof, (b) the giving of notice, if required, by
Lender of a default under Article VI of this Agreement, or (c) both, would be an
Event of Default.
"Security Agreement" shall mean the Security Agreement dated as of the
date hereof, given by the Borrowers to Lender, and all other agreements,
instruments and documents attached thereto, referred to therein or delivered in
connection therewith as any or all of the foregoing may be amended, modified or
supplemented from time to time.
"Security Documents" shall mean collectively the Security Agreement,
the Mortgage, any and all UCC financing statements, and any and all other
security documents or agreements executed by the Borrowers as each may be
amended, modified or supplemented from time to time.
"Stock Purchase Agreement" shall mean that certain Stock Purchase
Agreement, dated June 25, 1999, by and among the parties
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listed on Exhibit A attached thereto (the "Buyers"), Lender, and MNC.
"UCC" shall mean the Uniform Commercial Code (or any successor statute
thereto), as in effect in the State of Michigan or any other applicable state.
Terms and phrases defined in the UCC are used herein as therein defined, except
where the context otherwise requires.
1.02. Accounting Principles. The character or amount of any asset,
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liability, capital account or reserve and of any item of income or expense to be
determined, and any consolidation or other accounting computation to be made,
and the construction of any definition containing a financial term, pursuant to
this Agreement, shall be determined or made, as the case may be, in accordance
with GAAP, unless such principles are inconsistent with the express requirements
of this Agreement.
1.03. Construction. Unless the context of this Agreement otherwise
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clearly requires, references to the plural include the singular, the singular
the plural and the part the whole and "or" has the inclusive meaning represented
by the phrase "and/or". References in this Agreement to "determination" by
Lender means good faith estimates by Lender (in the case of quantitative
determinations) and good faith beliefs by Lender (in the case of qualitative
determinations). The words "hereof", "herein", "hereunder" and similar terms in
this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. The section and other headings contained in this
Agreement are for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation thereof in any respect.
Section, subsection and exhibit references are to this Agreement unless
otherwise specified.
When, in this Agreement or in any other Loan Document, a
representation or warranty is made to "the best knowledge of the Borrowers,"
such shall mean the actual present knowledge of Xxxxxxx X. Xxxxxxx or Xxxxx X.
Xxxxxx, after reasonable investigation. Such diligent investigation included,
without limitation, consultation with legal counsel to the extent deemed
appropriate by the officers of the Borrowers, a review of relevant records of
the Borrowers and inquiry of employees of the Borrowers whom the officers of the
Borrowers charged with responsibility for such matters.
ARTICLE II
THE CREDIT
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2.01. Loans. (a) Subject to the terms and conditions hereof, and
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relying upon the representations and warranties of each of the Borrowers herein
set forth, Lender agrees to make Loans to the Borrowers (the "Initial Loans") on
any Business Day, at any time or from time to time until the aggregate unpaid
balance of all advances outstanding under the Initial Loans equal One Million
Five Hundred Thousand Dollars ($1,500,000.00). Lender shall not be obligated to
relend any portion of the Initial Loans repaid or prepaid by the Borrowers; any
reborrowing of the Initial Loans by the Borrowers shall be made at the option
of, and in the sole discretion of, Lender.
(b) Subject to the terms and conditions hereof, and relying upon the
representations and warranties of each of the Borrowers herein set forth, Lender
may make discretionary additional Loans to the Borrowers (the "Additional
Loans") on any Business Day, at any time or from time to time until the
aggregate unpaid balance of all advances outstanding under the Additional Loans
equal One Million Five Thousand Dollars ($1,500,000.00). Lender shall not be
obligated to lend or relend the Additional Loans at any time; each borrowing or
reborrowing of an Additional Loan which may be made under this Agreement shall
be made at the option of, and in the sole and absolute discretion of, Lender.
2.02. Demand Promissory Notes. The obligation of the Borrowers to
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repay the aggregate unpaid principal amount of the Initial Loans made by Lender
shall be joint and several, and shall be evidenced by the Initial Demand
Promissory Note of the Borrowers in the form attached hereto as Exhibit A, in
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the face amount of One Million Five Hundred Thousand Dollars ($1,500,000.00),
bearing interest as set forth in Section 2.03(a) below, and payable in full upon
Lender's demand. The obligation of the Borrowers to repay the aggregate unpaid
principal amount of the Additional Loans if and when made by Lender shall be
joint and several, and shall be evidenced by the Additional Demand Promissory
Note of the Borrowers in the form attached hereto as Exhibit A-1, in the face
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amount of One Million Five Hundred Thousand Dollars ($1,500,000.00), bearing
interest as set forth in Section 2.03(a) below, and payable in full upon
Lender's demand. Each of the Demand Promissory Notes shall be dated and
delivered by the Borrowers to Lender on the Closing Date.
2.03. Interest; Payments; Additional Compensation in Certain
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Circumstances.
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(a) Interest Rate and Payments. The Borrowers shall pay interest upon
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the unpaid principal balance of the Loans outstanding from time to time, which
interest shall accrue at the Bank's "Base Rate" (as defined in the Bank's Loan
Agreement), plus one (1.00%)
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percentage point (which amount shall change immediately upon any change in the
Bank's Base Rate); provided, however, at any time the Borrowers are not indebted
to the Bank, interest shall accrue at the Base Rate plus one (1.0%) percentage
point, which amount shall change immediately upon any change in the Base Rate.
Interest shall be due and payable on the seventh day of each calendar month
commencing on the seventh day of the first calendar month following the Closing
Date and on the seventh day of each calendar month thereafter until Lender shall
demand repayment of the Loans in full.
(b) Place, Time and Amount. All payments and prepayments to be made
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in respect of the principal or interest on the Loans, and all other charges and
amounts payable under this Agreement or the Demand Promissory Notes shall become
due at 12:00 o'clock Noon, Detroit time, at the office of Lender, 00000 Xxxxx
Xxxx, Xxxxx, Xxxxxxxx 00000, on the day when due, in Dollars and in funds
immediately available at such office.
(c) Interest After Maturity or Event of Default. After an Event of
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Default has occurred and is continuing or after the principal amount of all or
any part of any Loan shall have become due and payable by acceleration,
declaration, or otherwise, the principal amount of all or any part of any Loan
shall thereafter bear interest at an aggregate fluctuating rate per annum which
shall be equal to the applicable interest rate then in effect pursuant to
Sections 2.03 (a) hereof, plus four (4.00) additional percentage points (the
"Default Rate").
(d) Maximum Rate. In no contingency or event shall interest charged
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hereunder, however such interest may be characterized or computed, exceed the
highest rate permissible under any Law which a court of competent jurisdiction
shall, in a final determination, deem applicable to this Agreement (the "Maximum
Rate"). In the event that any such court determines that the rate of interest
charged hereunder exceeded the Maximum Rate during any period or periods, the
rate of interest hereunder for such period or periods shall be deemed to have
been the Maximum Rate, and the rate of interest hereunder shall be deemed to
have continued to be and shall continue to be the Maximum Rate for such period
as is necessary for the total amount of interest paid or accrued hereunder to
equal the amount of interest that would have been paid or accrued hereunder had
the interest rate hereunder at all times remained as provided in the preceding
subsections of this Section 2.03. If, notwithstanding the foregoing interest
rate adjustment, a court of competent jurisdiction determines that Lender has
received interest in excess of the Maximum Rate, any such excess shall (i)
first, be applied by Lender to any unpaid costs and expenses owed to Lender
under this Agreement or any other
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Loan Document and to the unpaid principal amount of the Loans made by Lender
(without any applicable prepayment penalty), and (ii) second, be refunded by
Lender to the Borrowers.
2.04 Late Charges. The Borrowers (as applicable) shall pay to
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Lender promptly upon demand by Lender, five cents ($0.05) on each dollar of any
delinquent payment on any amounts due hereunder or under any of the Loan
Documents, which amount is not paid within fourteen (14) days after it is due.
2.05. Security For the Debt. The Debt shall at all times be secured
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by: (a) a security interest granted and created by the Borrowers in favor of and
for the benefit of Lender in the Collateral pursuant to the terms of the
Security Agreement; and (b) the Mortgage.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
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Each of the Borrowers makes the following representations and warranties to
Lender, as of the date of this Agreement, which representations and warranties
shall survive the execution and delivery of this Agreement and the issuance of
the Demand Promissory Notes hereunder:
3.01. Organization and Qualification. Each Borrower (other than EPI)
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is a corporation duly organized, validly existing and in good standing under the
laws of state of its incorporation, and is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction in which the nature of
its activities or ownership of property, or both, requires it to be so qualified
or, if not so qualified, in which a failure to so qualify would not have a
material adverse effect on its business, operations, properties or financial
condition. EPI is a general partnership duly organized, validly existing and in
good standing under the laws of state of Ohio, and is duly qualified to do
business as a foreign partnership in good standing in each jurisdiction in which
the nature of its activities or ownership of property, or both, requires it to
be so qualified or, if not so qualified, in which a failure to so qualify would
not have a material adverse effect on its business, operations, properties or
financial condition.
3.02. Power; Legal Capacity. The Borrowers have the requisite power
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and authority to execute, deliver and carry out this Agreement, including,
without limitation, the Demand Promissory Notes, the other Loan Documents and
the other
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instruments, documents and agreements contemplated or required hereby
or thereby, and to make the borrowings provided for herein. The Borrowers have
all requisite power and authority under the laws of each state in which they
conduct business to own and operate their respective properties and to carry on
their respective business as now conducted and as presently proposed to be
conducted.
3.03. [intentionally omitted]
3.04. Conflict with Other Instruments, etc. Except as set forth on
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Exhibit B attached hereto, the execution and delivery by each of the Borrowers
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of this Agreement, the Demand Promissory Notes, the Security Documents, the Loan
Documents and the other instruments, documents and agreements contemplated or
required hereby or thereby to which it is a party, the consummation of the
transactions herein or therein contemplated, and compliance by each of the
Borrowers with the terms, conditions and provisions hereof or thereof will not
conflict with or result in a breach of any of the terms, conditions or
provisions of the articles of incorporation or by-laws of each of the Borrowers,
or any Law or any agreement or instrument to which any of the Borrowers is a
party or by which any of the Borrowers or its properties is bound or to which
any of the Borrowers or its properties is subject, or constitute a default
thereunder or result in the creation or imposition of any Lien, other than Liens
in favor of Lender.
3.05. Authorization, Governmental Approvals. Except as set forth on
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Exhibit C attached hereto, the execution and delivery of this Agreement, the
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making of the borrowings contemplated by the provisions hereof, the execution,
issuance and delivery of the Demand Promissory Notes to evidence such
borrowings, the execution and delivery of the Security Documents, the Loan
Documents and all other instruments, documents and agreements contemplated or
required by the provisions hereof or thereof to be executed and delivered by
each of the Borrowers and the consummation of the transactions by each of the
Borrowers herein and therein contemplated have each been duly authorized by all
necessary corporate or partnership action on the part of each of the Borrowers.
Except as set forth on Exhibit B, No other authorization, consent, approval,
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license or exemption of, and no registration, qualification, designation,
declaration or filing with, any Person, and no other vote, authorization,
consent or approval of directors of each of the Borrowers, or of any Person, is
or was necessary to the valid execution and delivery of this Agreement by each
of the Borrowers, the making by each of the Borrowers of the borrowings
contemplated by the provisions hereof, the execution, issuance and delivery by
each of the Borrowers of the Demand Promissory Notes to evidence such
borrowings, the
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execution and delivery by each of the Borrowers of the Security Documents, the
Loan Documents and all other instruments, documents and agreements contemplated
or required by the provisions hereof or thereof to be executed and delivered by
each of the Borrowers or the consummation by each of the Borrowers of the
transactions herein and therein contemplated.
3.06. Validity and Binding Effect. This Agreement, the Demand
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Promissory Notes, the Security Documents, the Loan Documents and all other
instruments and agreements contemplated thereby to which each of the Borrowers
is a party have each been duly and validly executed and delivered by each of the
Borrowers and constitute legal, valid and binding obligations of each of the
Borrowers enforceable in accordance with their respective terms, except as the
enforceability of any of the foregoing may be limited by bankruptcy, insolvency
or other similar laws of general application relating to or affecting the
enforcement of creditors' rights or by general principles of equity.
3.07. Title to Property, etc. The Borrowers: (a) do not hold any
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title to any real properties, except for the real property owned by ORS
described on an applicable Schedule to the Stock Purchase Agreement (the "Real
Property"); (b) have a lessee's leasehold interest in the properties described
on the Schedules attached to the Stock Purchase Agreement (such leasehold
interests and the Real Property is hereinafter collectively referred to as the
"Borrowers' Properties") pursuant to the lease agreements described on the
Schedules attached to the Stock Purchase Agreement (the "Borrowers' Leases");
(c) except as set forth on an applicable Schedule to the Stock Purchase
Agreement, have maintained the Borrowers' Leases in full force and effect and
are not in violation of or default of or have committed a breach of any term,
condition or provision of the Borrowers' Leases; (d) maintain their chief
executive offices at the locations set forth on Exhibit D; (e) will maintain
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their chief executive offices within the respective states set forth in Exhibit
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D; and (f) except as set forth on an applicable Schedule to the Stock Purchase
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Agreement, have and will maintain good and marketable title to all of the
Equipment and their other personal property assets purported to be owned by them
and necessary to the operation of their businesses as presently conducted,
including, without limitation, all of the Collateral in each case free and clear
of all Liens (including, without limitation, Liens arising by operation of Law
or otherwise in favor of the Environmental Protection Agency, and the Internal
Revenue Service). None of the Borrowers' assets are goods covered by a
certificate of title (as such terms are defined in the UCC). Except as
specifically set forth on the Schedules attached to the Stock
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Purchase Agreement, the Borrowers do not lease any personal property.
3.08. [intentionally omitted]
3.09. Books and Records. Each of the Borrowers makes and keeps
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books, records and accounts which, in reasonable detail, accurately and fairly
reflect its business and other transactions and maintains, a system of
accounting controls sufficient to assure that (a) business and other
transactions are carried out in accordance with authorization of management, (b)
business and other transactions are recorded as necessary to permit preparation
of financial statements in accordance with GAAP and to maintain adequate
accountability for assets and their utilization, (c) access to assets, whether
by officers or otherwise, is permitted only in accordance with management's
general or specific authorization and (d) the recorded accounting for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences found to exist.
3.10. Taxes. Each of the Borrowers has filed all required federal,
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state, local and other tax returns and has paid, all taxes which have become due
pursuant to such returns or to assessments received. None of the Borrowers
knows of any additional material assessments for which adequate reserves have
not been established on the books of the Borrowers.
3.11. Litigation or Proceedings; Commitments and Contingencies.
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(a) Except as set forth on Exhibit E attached hereto and except for
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actions involving less than $10,000 individually and $50,000 in one aggregate
and which are not covered by insurance and which are not being defended by
insurance carrier counsel, (i) there is no litigation or any governmental
proceeding or investigation pending, or any litigation or governmental
proceeding threatened in writing against any of the Borrowers before any
Official Body which, if determined adversely to any of the Borrowers, might
result in any material adverse change in the financial condition, business or
operations of any of the Borrowers or in the inability of any of the Borrowers
to perform its obligations under the Loan Documents and (ii) there is no
litigation or governmental proceeding or investigation pending or overtly
threatened concerning any of the Borrowers arising under any federal, state or
local law, regulation or rule regulating (A) the release or discharge of
materials into or the protection of the
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environment, or (B) the management, handling or disposal of hazardous waste or
toxic substances, or (C) the public health.
(b) Except for any Guarantees within the consolidated group, there
are no Guarantees of Indebtedness for Money Borrowed of any of the Borrowers or
letters of credit as to which any of the Borrowers is an account party. None of
the Borrowers is obligated under any Guarantee or has any known contingent
liabilities which are required by GAAP to be recorded in its financial
statements or disclosed in the notes thereto which are not therein so recorded
or disclosed.
3.12. Franchises, Permits, etc. To best of knowledge of the
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Borrowers, each of the Borrowers possesses adequate franchises, licenses,
permits, trademarks and patents to own its properties and to carry on its
business as presently conducted.
3.13. Compliance with Law. To best of knowledge of the Borrowers,
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none of the Borrowers is in violation of or subject to any liability on account
of any Law, which would result in any material adverse change in the financial
condition, business or operations of any of the Borrowers.
3.14. Compliance with Environmental Laws.
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(a) To best of knowledge of the Borrowers, each of the Borrowers is
in compliance with all Environmental Laws. Each of the Borrowers will be deemed
to be in compliance with this Subsection (a) if it is taking action required by
any Official Body within time limits set by such Official Body to correct any
violation or if it is contesting an order that is stayed during the pendency of
appropriate judicial or administrative proceedings being diligently pursued by
it.
(b) To best of knowledge of the Borrowers, each of the Borrowers
has obtained all material permits, licenses and other authorizations which are
required for the operation of its business under the Environmental Laws, and
each of the Borrowers is in full compliance and shall remain in full compliance
with all material terms and conditions of any such permits, licenses and/or
authorizations. The consummation of the transactions contemplated by this
Agreement will not alter or impair any rights under any such permits, licenses
and authorizations. To best of knowledge of the Borrowers, each of the Borrowers
is in full compliance with any other material limitations, restrictions,
conditions, requirements, schedules, and/or timetables set forth in the
Environmental Laws or contained in any order, decree, variance, plan,
injunction, judgment, notice or demand letter.
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3.15. No Environmental Liabilities. To best of knowledge of the
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Borrowers, and except as set forth in Schedule 4.32 of the Stock Purchase
Agreement, none of the Borrowers has any liability arising out of the
generation, storage, treatment or disposal of any hazardous waste or substance,
including, but not limited to, those substances designated under Superfund (42
U.S.C. (S)9603) as hazardous, and any petroleum or petroleum-related materials,
the enforcement of which would have a material adverse effect on any of the
Borrowers.
3.16. [intentionally omitted]
3.17. [intentionally omitted]
3.18. [intentionally omitted]
3.19. No Event of Default; Compliance with Instruments. No Event of
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Default or Potential Event of Default has occurred and except for its
obligations to the Bank, none of the Borrowers is in violation of or default of
or has committed a breach of any term, condition or provision of any agreement,
indenture, instrument, charter instrument, by-law or other instrument to which
it is a party or by which it is bound or to which it or any of its properties is
subject in any instance where such violation, default or breach would have a
material adverse effect on the business, operations, properties or financial
condition of any of the Borrowers taken as a whole.
3.20. Disclosure. Neither this Agreement nor any other Loan Document
----------
or any other agreement, document, certificate or statement when furnished in
writing to Lender by any of the Borrowers in connection with the transactions
contemplated hereby or thereby contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary in
order to make the statements contained herein and therein not misleading in
light of the circumstances under which they were made. There is no fact known
to any of the Borrowers which materially adversely affects or in the reasonably
foreseeable future is reasonably likely materially and adversely to affect the
business, property or assets, or financial condition of any of the Borrowers
taken as a whole, which has not been set forth in this Agreement, in the other
Loan Documents, in the other agreements, documents, certificates and statements
furnished in writing to Lender prior to the date hereof in connection with the
transactions contemplated hereby or thereby, or in the Stock Purchase Agreement.
3.21. Burdensome Obligations. None of the Borrowers is a party to
----------------------
any agreement, deed, lease or other instrument, which,
-14-
in the opinion of the management of each of the Borrowers, is so unusual or
burdensome as to in the foreseeable future materially and adversely affect or
impair the business or assets or the condition, financial or otherwise, of any
of the Borrowers.
3.22. Continuing Effect. All representations and warranties of each
-----------------
of the Borrowers hereunder shall survive the execution and delivery of this
Agreement and the other Loan Documents.
ARTICLE IV
CONDITIONS OF LENDING
---------------------
The obligations of Lender to make the Loans hereunder on any date are
subject to the performance by the Borrowers of their respective obligations to
be performed hereunder on or before such date and to the satisfaction of the
following requirements. If Lender makes a Loan without the satisfaction of a
specific requirement set forth below, then the Borrowers, to the extent the
requirement is under its control, shall fulfil the requirement within fifteen
(15) days of the date of this Agreement.
4.01. Loan. At the time of making the Loans, Lender shall have
----
received the following documents, together with such other executed originals or
copies as Lender may request and the following conditions precedent shall have
been satisfied:
(a) The Demand Promissory Notes, the Security Agreement, the Mortgage,
and each of the other Loan Documents as Lender may request duly executed by the
parties thereto and delivered to Lender.
(b) (i) Copies of all documents evidencing corporate action taken by
the Borrowers relative to this Agreement and the other Loan Documents in form
and substance satisfactory to Lender and counsel for Lender, certified by the
respective Secretary of each of the Borrowers, (ii) copies of the By-Laws of
each of the Borrowers, certified by the respective Secretary of each of the
Borrowers, (iii) a certificate or certificates, dated a recent date, of the
Secretary of State or other similar official as to true and correct copies of
the Articles of Incorporation of each of the Borrowers, together with all
amendments thereto, and the good standing of each of the Borrowers under the
Laws of the States of Delaware, Michigan and Ohio (as applicable) and in each
state where it is qualified, or is required by law to be so qualified to do
business, and (iv) copies of all existing leases of the Borrowers' Properties.
-15-
(c) Certificates, signed by the respective Secretary of each of the
Borrowers, certifying as to the name of the respective officers of each of the
Borrowers authorized to sign this Agreement and the other Loan Documents and as
to the specimens of the true signatures of such officers, on which Lender may
conclusively rely until a revised certificate is similarly so delivered.
(d) Such financing statements, results of Lien searches, and other
documents or instruments necessary to collateralize the Loans fully in
accordance with the priorities described herein, together with evidence of the
filing or recording of such documents or instruments.
(e) (i) A commitment for the issuance of the ALTA Loan Policy, and
(ii) insurance certificates for all insurance required by Section 5.01(c)
hereof, by the Security Agreement or by the Mortgage, including, without
limitation, business interruption insurance and extended fire and casualty
insurance (which shall contain a lender's loss payable endorsement and a thirty-
day notice of cancellation provision), issued to Lender as an additional named
insured and additional loss payee and, in the case of extended fire and casualty
insurance, covering the property described in the Security Agreement and the
Mortgage, and in compliance with Section 5.01(c) of this Agreement.
(f) A favorable opinion, dated as of the date of this Agreement, of
counsel for the Borrowers in form and scope satisfactory to counsel for Lender,
as to such matters relating to the transactions contemplated hereby as Lender
and such counsel may reasonably request.
(g) Each of the Borrowers' representations and warranties in Article
III hereof shall be true and accurate with the same effect as though such
representations and warranties had been made on and as of such date (except
representations and warranties which relate solely to an earlier date).
(h) No Event of Default and no Potential Event of Default shall have
occurred and be continuing or shall exist.
(i) Each of the Borrowers shall be in compliance with each of the
covenants set forth in Article V hereof.
(j) Lender shall have been granted a security interest in the
Collateral under the UCC, and all filings, recordings and other actions
necessary to perfect such interests shall have been effected.
-16-
(k) The Mortgage shall have been executed and delivered to Lender and
shall have been properly recorded in the real estate records in the county where
the Mortgaged Property is located, and Lender shall have a lien on the Mortgaged
Property, subject only to the Permitted Liens.
(l) All legal details and proceedings in connection with the
transactions contemplated by this Agreement and all documents delivered to
Lender pursuant to this Section 4.01 shall be in form and substance satisfactory
to Lender and Lender shall have received all such counterpart originals or
certified copies of such documents and proceedings in connection with such
transactions, in form and substance satisfactory to Lender, as Lender shall
reasonably request.
ARTICLE V
COVENANTS
---------
5.01. Affirmative Covenants of the Borrowers. The Borrowers covenant
--------------------------------------
to Lender that, so long as the Borrowers may borrow hereunder and until payment
in full of the Demand Promissory Notes issued hereunder, and interest thereon,
compensation, amounts and obligations payable hereunder and under the other Loan
Documents, each of the Borrowers will:
(a) Preservation of Existence, etc. Preserve and maintain its
------------------------------
existence in the jurisdiction of its incorporation, and qualify and remain
qualified as a foreign corporation in each jurisdiction in which failure to
qualify would have a material adverse effect on the business, operations,
properties or financial condition of any of the Borrowers.
(b) Payment of Taxes, etc. Pay or discharge all taxes, assessments
---------------------
and governmental charges or levies imposed upon it or upon its income or profits
and payable by it, or upon any properties belonging to it, prior to the date on
which penalties attach thereto, and all lawful claims which, if unpaid, might
become a Lien upon any properties of any of the Borrowers, provided that none of
the Borrowers shall be required to pay any such tax, assessment, charge, levy or
claim which is being contested in good faith and by appropriate proceedings
diligently conducted and for which reserves or other provisions required by GAAP
are being maintained on the books of the contesting Borrower with respect
thereto.
(c) Maintenance of Insurance. Maintain insurance on its properties
------------------------
and businesses with responsible insurance carriers in such amounts, of such
types and covering such casualties, risks and
-17-
contingencies as Lender may require, including, without limitation, business
interruption insurance and extended fire and casualty insurance, and, in the
case of insurance maintained by the Borrowers, naming Lender as an additional
loss payee and containing a loss payable endorsement and a thirty (30) day
notice of cancellation provision.
(d) Maintenance of Properties, etc. Maintain and preserve all of its
------------------------------
properties which are necessary or useful in the proper conduct of its business
in good working order and condition, ordinary wear and tear excepted.
(e) Maintenance of Franchises, Permits, etc. Maintain and preserve
---------------------------------------
adequate franchises, licenses, permits, trademarks and patents which are
necessary for the conduct of its business.
(f) Keeping of Records and Books of Account. Keep adequate records
---------------------------------------
and books of account, in which substantially complete entries will be made in
accordance with GAAP reflecting all financial transactions required thereby.
(g) Visitation Rights. At any reasonable time and from time to time
-----------------
upon at least one (1) Business Days' prior notice, permit Lender or any agents
or representatives thereof during normal working hours to examine and make
copies of and abstracts from the records and books of account of, and visit the
properties of, the Borrowers and to discuss the affairs, finances and accounts
of each of the Borrowers with any of its appropriate employees, officers or
directors; provided, however than if an Event of Default has occurred and is
continuing, Lender may exercise its visitation rights at any time without
notice.
(h) Compliance with Laws. Comply with all Laws having applicability
--------------------
to it or to the business or businesses at any time conducted by the Borrowers,
the non-compliance with which would result in a material adverse change in the
financial condition, business or operations of any of the Borrowers taken as a
whole. Each of the Borrowers will comply with all Environmental Laws or
regulations and hazardous waste or toxic substances management, handling or
disposal laws and regulations (the non-compliance with which would result in a
material adverse change in the financial condition, business or operations of
any of the Borrowers taken as a whole), whether regarding (i) the conduct of its
business, or (ii) the use, maintenance or operation of property owned or
possessed by it or (iii) otherwise. Each of the Borrowers will be deemed to be
in compliance with this Subsection (h) if it is taking action required by any
Official Body within time limits set by such Official Body to correct any
violation or if it is contesting an
-18-
order that is stayed during the pendency of appropriate judicial or
administrative proceedings being diligently pursued by it.
(i) Loan Documents. Keep, observe and comply with all covenants and
--------------
obligations of the Borrowers, which are set forth in the Security Documents, the
other Loan Documents or any other agreement or instrument delivered in
connection herewith or therewith.
(j) Further Assurances for the Security Interest. Do all such other
--------------------------------------------
acts and things and execute and deliver all such other instruments and
documents, including without limitation further security agreements, pledges,
endorsements, assignments and notices, as Lender may reasonably deem necessary
or advisable from time to time to preserve the security interests granted in the
Security Agreement. Lender, and its officers, employees and authorized agents,
or any of them, are hereby irrevocably appointed the attorneys-in-fact of the
Borrowers (without requiring any of them to serve as such) to do, at the
Borrowers' expense, all acts and things which Lender may deem necessary or
advisable to preserve, to perfect and continue perfected Lender's security
interests in the Collateral, including without limitation the signing and filing
of financing, continuation or other similar statements and notices on behalf of
each of the Borrowers. Lender agrees that unless an Event of Default shall have
occurred and be continuing or shall exist, such acts and things shall be
undertaken by Lender after notice to the Borrowers; provided, however, that the
-------- -------
failure of Lender to give such notice shall not limit, reduce or otherwise
affect the rights, powers and privileges of Lender or the obligations of the
Borrowers hereunder or under any Loan Document and shall not invalidate, impair
or otherwise affect any action or things undertaken by Lender.
5.02. Negative Covenants. Each of the Borrowers covenant to Lender
------------------
that until payment in full of the Loans and all interest thereon, and all
amounts and obligations payable hereunder and under the other Loan Documents,
each of the Borrowers will not, without the prior written consent of Lender:
(a) Amendments. Take any action to amend its charter documents or
----------
bylaws;
(b) Stock. Issue any stock, bonds or other corporate securities or
-----
grant any option or issue any warrant to purchase or subscribe to any of such
securities or issue any securities convertible into such securities;
(c) Indebtedness. Incur any obligation or liability (absolute or
------------
contingent), including any mortgage, Guarantee,
-19-
equipment loan or other long-term debt obligation or increased borrowing under
any existing lines of credit, except current liabilities incurred and
obligations under contracts entered into in the ordinary course of business and
except for increases in the credit lines with steel xxxxx;
(d) Dividends. Except for MNC's Series A and B Preferred Stock,
---------
declare or make any Dividend, payment or distribution to its stockholders with
respect to its stock or purchase or redeem any shares of its capital stock;
(e) Payments To Insiders. Except to the extent required by the terms
--------------------
under which MNC's preferred stock was issued and except as required by written
employment agreements, make, accrue or become liable for any payment to any
officer, director, or stockholder of the Borrowers or any Affiliate of any such
Person, other than (i) payment under existing supply contracts and leases, and
(ii) payments of compensation and benefits consistent with the past practices of
the Borrowers;
(f) Liens. Mortgage, pledge, or subject to any lien, charge or any
-----
other encumbrance any of their respective assets or properties;
(g) Sales. Sell, assign, or transfer any of its assets, except for
-----
products sold in the ordinary course of business;
(h) Cancellation of Indebtedness. Cancel any debts or claims, except
----------------------------
in the ordinary course of business;
(i) Merge. Merge or consolidate with or into any corporation or other
-----
entity;
(j) Bonuses. Make, accrue or become liable for any bonus, profit
--------
sharing or incentive payment, except for accruals under existing plans, if any,
or increase the rate of compensation payable or to become payable by it to any
of its officers, directors or employees;
(k) Waiver. Waive any rights of material value;
------
(l) Contracts. Modify, amend, alter or terminate any of its executory
---------
contracts of a material value or which are material in amount;
(m) Breaches. Take or permit any act or omission constituting a
--------
breach or default under any material contract, indenture or agreement by which
it or its properties are bound;
-20-
(n) Investments. Intentionally make or acquire any Investments in any
-----------
Person (including any Guarantee of Indebtedness of any Person) except:
Investments (i) in marketable obligations issued or guaranteed by the United
States of America or an instrumentality or agency thereof, maturing not more
than one year after the date of acquisition thereof, (ii) in certificates of
deposit or other obligations maturing not more than one year after the date of
acquisition thereof issued by any Bank, (iii) in open market commercial paper
with a maturity not in excess of 360 days from the date of acquisition thereof
which on the date as of which investments are computed for any purpose under
this Agreement has a rating of not less than Standard & Poor's Corporation's "A"
or Xxxxx'x Investors Service, Inc.'s "A2", and (iv) in repurchase agreements
having a maturity of not greater than one year from the date of issuance thereof
collateralized by obligations of the United States of America or any agency
thereof.
ARTICLE VI
DEFAULT
-------
6.01. Events of Default. An Event of Default shall mean the
-----------------
occurrence or existence of one or more of the following described events:
(a) Any of the Borrowers shall default in the payment of any principal
of, or interest on, the Demand Promissory Notes when due, whether upon demand or
by acceleration or otherwise; or
(b) Any of the Borrowers shall default in the payment of any amounts
due hereunder (other than as set forth in Section 6.01 (a) above) or under any
other Loan Documents and such default shall not be remedied for a period of ten
(10) calendar days after notice thereof to the Borrowers from Lender; or
(c) Except for defaults currently existing and disclosed on a Schedule
to the Stock Purchase Agreement, any of the Borrowers shall default (i) in any
payment of principal of or interest on any other obligation for borrowed money
or under any Guarantee or contingent liability (including but not limited to
reimbursement obligations under letters of credit) beyond any period of grace
provided with respect thereto, or (ii) in the performance of any other material
covenant, agreement, term or condition contained in any agreement, indenture or
instrument under which any such obligation is created if the effect of such
default is to cause, or permit the holder or holders of such obligation (or a
trustee on behalf of such holder or holders) to cause, such obligation to become
due prior to its stated maturity, unless such
-21-
default is being contested in good faith and by appropriate proceedings
diligently conducted; or
(d) Any representation or warranty made herein or in any other Loan
Document by any of the Borrowers shall prove to have been false or misleading in
any material respect as of the time made; or
(e) Any certificate or financial statement furnished pursuant to the
provisions of this Agreement or pursuant to any other Loan Document shall prove
to have been knowingly false or misleading in any material respect as of the
time furnished; or
(f) Any of the Borrowers shall be in default of the provisions of any
of the subsections of Section 5.02 hereunder; or
(g) Any of the Borrowers shall default in the performance of any other
covenant, condition or provision of this Agreement, and such default shall not
be remedied for a period of thirty (30) calendar days after either (i) any of
the Borrowers (as applicable) shall become aware thereof, or (ii) notice thereof
to the Borrowers (as applicable) from Lender; or
(h) Any of the Borrowers shall default in the performance of any
covenant, condition or provision of any Loan Document beyond the date of any
applicable grace period; or
(i) A final judgment which, with other final judgments against any of
the Borrowers exceeds an aggregate of $100,000.00 (and not covered by insurance)
shall have been entered against any of the Borrowers if, within 30 days after
the entry thereof, such judgment shall not have been discharged or execution
thereof stayed pending appeal; or
(j) Any default under, or institution of foreclosure or other
proceedings by a third party to enforce any Lien of any kind upon the
Collateral, the Mortgaged Property, or any portion thereof unless any of the
Borrowers is contesting such in good faith and has made reserves for loss if
recommended by its independent certified accountants; or
(k) A proceeding shall have been instituted in a court having
jurisdiction in the premises seeking a decree or order for relief in respect of
any of the Borrowers in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or for the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of any of the Borrowers, or for any
substantial part of their respective property, or for the winding-up or
liquidation of their respective affairs, or such court shall enter a decree or
-22-
order granting the relief sought in such proceeding and such proceeding shall
not have been dismissed within 60 days after the institution thereof; or
(l) Any of the Borrowers shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of any of the Borrowers, or for any substantial part of their
respective property, or shall make a general assignment for the benefit of
creditors, or shall take any action in furtherance of, or indicating their
respective consent to, approval of or acquiescence in, any of the foregoing; or
(m) The Stock Purchase Agreement is terminated prior to the issuance
of the Shares (as defined in the Stock Purchase Agreement) to the Buyers.
6.02. Consequences of Event of Default. If an Event of Default
--------------------------------
specified under paragraphs (a) through (n) of Section 6.01 shall occur, Lender
may, by notice to the Borrowers declare the unpaid balance of the Demand
Promissory Notes then outstanding and interest accrued thereon and all other
obligations and liabilities of the Borrowers hereunder and thereunder and under
the other Loan Documents to be forthwith due and payable, and the same shall
thereupon become and be immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived.
The rights of Lender set forth in this Section 6.02 shall in no way limit
Lender's absolute right to demand payment of the unpaid balance of the Demand
Promissory Notes then outstanding and interest accrued thereon.
ARTICLE VII
MISCELLANEOUS
-------------
7.01. Modifications, Amendments or Waivers. Lender, the Borrowers,
------------------------------------
may from time to time enter into written agreements amending or changing any
provision of this Agreement or any other Loan Document, and Lender may grant
waivers or consent to a departure from the due performance of the obligations of
the Borrowers hereunder or thereunder; provided, however, that all such
-------- -------
amendments or waivers must be in writing signed by each of the parties hereto.
7.02. No Implied Waivers; Cumulative Remedies; Writing Required. No
---------------------------------------------------------
delay or failure of Lender in exercising any right,
-23-
power or remedy hereunder or under any other Loan Document shall affect or
operate as a waiver thereof; nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such a right, power or
remedy preclude any further exercise thereof or of any other right, power or
remedy. The rights and remedies hereunder and under the other Loan Documents of
Lender are cumulative and not exclusive of any rights or remedies which it would
otherwise have. Any waiver, permit, consent or approval of any kind or character
on the part of Lender of any breach or default under this Agreement or under any
other Loan Document or any such waiver of any provision or condition of this
Agreement or of any other Loan Document must be in writing and shall be
effective only to the extent in such writing specifically set forth.
7.03. Taxes. The Borrowers agree to pay any and all stamp, document,
-----
transfer or recording taxes, and similar impositions payable or hereafter
determined to be payable in connection with this Agreement or any other Loan
Document or any other documents, instruments or transactions pursuant to or in
connection herewith and therewith, and agree to save Lender harmless from and
against any and all present or future claims or liabilities with respect to, or
resulting from any delay in paying or omission to pay, any such taxes or similar
impositions.
7.04. Holidays. Whenever any payment or action to be made or taken
--------
hereunder or under the Demand Promissory Notes shall be stated to be due on a
day which is not a Business Day, such payment or action shall be made or taken
on the next following Business Day, and such extension of time shall be included
in computing interest or fees, if any, in connection with such payment or
action.
7.05. Notices. Any notice, demand, request or other communication
-------
which any party hereto may be required or may desire to give hereunder shall be
in writing and shall be deemed to have been properly given (a) if hand
delivered, or if sent by telecopy, effective upon receipt, or (b) if delivered
by overnight courier service, effective on the day following delivery to such
courier service addressed as follows:
THE BORROWERS:
-------------
MERIDIAN NATIONAL CORPORATION
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxx
-24-
LENDER:
------
MNP CORPORATION
00000 Xxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
7.06. Reimbursement of Expenses; Taxes. The Borrowers shall promptly
--------------------------------
upon receipt of a written invoice to pay or cause to be paid or to reimburse
Lender and save Lender harmless against liability for the payment of all
reasonable out-of-pocket expenses, including, without limitation, the reasonable
fees and expenses of counsel to Lender, and, following the occurrence of an
Event of Default and prior to the cure or waiver thereof, other reasonable
expenses incurred by officers or employees of Lender's credit recovery group (or
any successor group) incurred by Lender (a) arising in connection with the
development, preparation, printing, execution, performance or delivery of this
Agreement, the other Loan Documents, or other instruments and documents to be
delivered hereunder or thereunder, (b) relating to any amendments, waivers or
consents pursuant to the provisions hereof or thereof, (c) arising in connection
with the enforcement of or preservation of rights under this Agreement or the
other Loan Documents, collection of any amount due under the Demand Promissory
Notes or hereunder or under the other Loan Documents, or the proof and
allowability of any claim arising under this Agreement or under any Loan
Document, whether in any bankruptcy or receivership proceeding or otherwise,
and/or (d) arising in connection with any suit to enforce or enjoin performance
hereof or thereof, or any litigation, proceeding, dispute or other adjustment or
realignment of the Borrowers' financial structure which necessitates the
involvement, approval or consent of Lender or preparation therefor involving or
in any way related to this Agreement or the other Loan Documents, including
without limitation, in all such events enumerated in subparagraphs (a) through
(d) of this Section 7.06, any and all reasonable attorneys' fees and costs and
expenses for litigation, preparation for litigation or otherwise.
7.07. Survival. All representations, warranties, covenants and
--------
agreements of the Borrowers contained herein, in any other Loan Document or made
in writing in connection herewith or therewith shall survive the execution and
delivery of this Agreement and the other Loan Documents, the making of Loans
hereunder and the issuance of the Demand Promissory Notes and shall continue in
full force and effect so long as any of the Loans is outstanding and until
payment in full of all of the Debt and the Borrowers' obligations hereunder or
thereunder. The indemnity agreement contained in Section 7.12 of this Agreement
shall survive the termination of this Agreement.
-25-
7.08. Governing Law. This Agreement, the Demand Promissory Notes,
-------------
the Security Documents, the other Loan Documents and the rights and obligations
of the parties hereto and thereto shall be deemed to be contracts under the laws
of the State of Michigan and for all purposes shall be governed by and construed
and enforced in accordance with the laws of the State of Michigan. The Borrowers
agree that any legal suit, action, or proceeding arising out of this Agreement,
any Security Documents, the Demand Promissory Notes or any other Loan Document
shall be instituted in any state or federal court in the County of Oakland,
State of Michigan and waives any objection which it may now or hereafter have to
the laying of venue of any such suit, action or proceeding in such jurisdiction.
The Borrowers further agree that service of process shall be properly served if
served personally or by registered mail return receipt requested at the address
set forth in Section 7.05.
7.09. WAIVER OF RIGHT TO TRIAL BY JURY. THE BORROWERS HEREBY
--------------------------------
EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION (a) ARISING UNDER THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT
ATTACHED HERETO, REFERRED TO HEREIN OR DELIVERED IN CONNECTION HEREWITH, OR (b)
IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE
BORROWERS WITH RESPECT TO THIS AGREEMENT OR ANY OTHER DOCUMENT OR INSTRUMENT
ATTACHED HERETO, REFERRED TO HEREIN OR DELIVERED IN CONNECTION HEREWITH, OR THE
TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE; AND THE BORROWERS HEREBY AGREE AND CONSENT THAT
ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY, AND THAT THE BANK MAY FILE AN ORIGINAL COUNTERPART OR A
COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
BORROWERS TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
7.10. Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of Lender, the Borrowers and their respective heirs,
personal representatives, successors and assigns, except that the Borrowers may
not assign or transfer their rights hereunder or any interest herein or delegate
their duties hereunder without the prior written consent of Lender.
Lender may assign its rights hereunder and the other Loan Documents to
another bank or other entity without the consent of the Borrowers as part of any
transaction and Lender shall give the Borrowers prior notice thereof. Lender may
furnish any publicly available information concerning the Borrowers and, with
the prior written permission of the Borrowers, which consent shall not be
unreasonably withheld, any other information concerning the
-26-
Borrowers in the possession of Lender from time to time to assignees and
prospective assignees.
7.11. Severability. If any term, provision, or restriction of this
------------
Agreement is held to be invalid, void or unenforceable in any way in any
jurisdiction, the remainder of the terms, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect in such jurisdiction and
shall in no way be affected, impaired or invalidated, and such invalidity,
voidness or unenforceability shall not affect the validity and enforceability of
such provision, covenant, or restriction in any other jurisdiction. It is
hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
7.12. Indemnity. Each of the Borrowers agrees to indemnify Lender,
---------
its directors, officers and employees and each legal entity if any, who controls
Lender (the "Indemnified Parties") and to hold each Indemnified Party harmless
from and against any and all claims, damages, liabilities and expenses
(including, without limitation, all reasonable fees of counsel with whom any
Indemnified Party may consult and all reasonable expenses of litigation or
preparation therefor) which any Indemnified Party may incur or which may be
asserted against any Indemnified Party in connection with or arising out of the
matters referred to herein, in any Security Document, or any other Loan Document
(including, without limitation, in any action at law or suit in equity in
relation to this Agreement, or any other Loan Document, commenced by a third
party, by any of the Borrowers unless such claims, damages, liabilities and
expenses result from gross negligence or willful misconduct on the part of the
Indemnified Party. The indemnity agreement contained in this Section 7.12 shall
survive the termination of this Agreement. Promptly and upon receipt by an
Indemnified Party hereunder of notice of the commencement of any action, such
Indemnified Party shall, if a claim in respect thereof is to be made against any
of the Borrowers hereunder, notify the Borrowers in writing of the commencement
thereof. The Borrowers may participate in the defense of any such action or
claim, at their expense, and no settlement thereof shall be made without the
approval of the Borrowers and the Indemnified Party. The approval of the
Borrowers will not be unreasonably withheld.
7.13. Limitation of Liability. The Borrowers acknowledge and agree
-----------------------
that Lender shall not be liable for any acts or omissions nor for any error of
judgment or mistake of fact or law other than as a sole and direct result of
Lender's gross
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negligence or willful misconduct. In such event, Lender shall be liable to the
Borrowers only for actual damages caused by Lender's gross negligence or willful
misconduct. The Borrowers expressly agree that in no event will Lender be liable
for any indirect, special, consequential or punitive damages in connection with
or arising out of any of the Loan Documents. Notwithstanding any other provision
of this Agreement or any Loan Document, Lender shall not be liable for any
failure or inability to perform or any delay in performance hereunder or under
any other Loan Document if such failure, inability or delay is due to act of
God, war, civil or industrial disturbance, strikes, natural disaster, equipment
malfunction or any other cause which are beyond Lender's reasonable control. The
Borrowers shall give Lender written notice of any action or inaction by Lender
or any agent or attorney of Lender that may give rise to a claim against Lender
or any agent or attorney of Lender or that may be a defense to payment or
performance of and of the Debt for any reason, including commission of a tort
(subject, in any event, to the first sentence of this paragraph) or violation of
any contractual duty or duty implied by law. The Borrowers agree that unless
such notice is fully given as promptly as possible (and in any event within
thirty (30) days) after any of the Borrowers has knowledge, or with the exercise
of reasonable diligence should have had knowledge, of any such action or
inaction, the Borrowers shall not assert, and the Borrowers shall be deemed to
have waived, any claim or defense arising therefrom.
7.14. Marshaling; Payments Set Aside. Lender shall not be under any
------------------------------
obligation to xxxxxxxx any assets in favor of the Borrowers or any other Person
or against or in payment of any or all of he Debt. To the extent that any of
the Borrowers makes a payment or payments to Lender or Lender enforces its
security interests, or Lender exercises its rights of setoff, and such payment
or payments or the proceeds of such enforcement or setoff or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside, recovered from, disgorged by or are required to be refunded, repaid or
otherwise restored to the applicable Borrower a trustee, receiver or any other
Person under any Law, including without limitation any bankruptcy Law, state or
federal Law, common Law or equitable cause, then to the extent of any such
restoration, the obligation or part thereof originally intended to be satisfied
shall be revived and continued in full force and effect as if such payment had
not been made or such enforcement or setoff had not occurred.
7.15. Prior Understandings. This Agreement supersedes all prior
--------------------
understandings and agreements, whether written or oral, among the parties hereto
relating to the transactions provided for herein.
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7.16. Counterparts. This Agreement may be executed in any number of
------------
counterparts and by different parties hereto on separate counterparts, each of
which, when so executed and delivered, shall be an original, but all such
counterparts shall together constitute one and the same instrument.
7.17. Third Party Beneficiaries. The provisions of this Agreement
-------------------------
are for the benefit of the executing parties hereto only and are not for the
benefit of any other Person.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first set forth above.
MERIDIAN NATIONAL CORPORATION,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx,
Its: Vice President - Finance
OTTAWA RIVER STEEL CO.,
an Ohio corporation
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx,
Its: Vice President - Finance
[signatures continued on next page]
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ENVIRONMENTAL PURIFICATION
INDUSTRIES COMPANY, an Ohio
general partnership
BY: National Purification, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
Its: Vice President - Finance
AND
BY: MEPI Corp.,
General Partner
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
Its: Vice President - Finance
MNP CORPORATION,
a Michigan corporation
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
Its: Vice President
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