FIRST AMENDMENT TO
CREDIT AGREEMENT
This First Amendment to the Credit Agreement (the "Amendment") is entered
into as of the 14th day of May, 1998, by and among GLOBE BUSINESS RESOURCES,
INC., an Ohio corporation formerly known as and doing business as Globe
Furniture Rentals ("Borrower"), THE FIFTH THIRD BANK, an Ohio banking
corporation ("Fifth Third"), PNC BANK, OHIO, NATIONAL ASSOCIATION, a national
banking association ("PNC") and NORWEST LOAN PARTNERS, a division of Norwest
Bank Minnesota N.A., ("Norwest") as lenders (collectively, the "Banks" and each
a "Bank"), and THE FIFTH THIRD BANK, in its capacity as Agent for the Banks (the
"Agent").
WHEREAS, Banks, Borrower and Agent entered into that certain Credit
Agreement, dated as of September 29, 1997 (the "Agreement");
WHEREAS, in connection with the transactions contemplated by the Agreement,
Borrower executed and delivered to Banks the following additional loan
documents, each dated September 29, 1997: (a) a Revolving Note in the original
principal amount of $20,000,000 executed by Borrower and made payable to Fifth
Third (the "Fifth Third Revolving Note") and (b) a Revolving Note in the
original principal amount of $10,000,000, executed by Borrower and made payable
to PNC (the "PNC Revolving Note") (the Agreement and all of the foregoing
documents and all other loan documents executed in connection with the loan
evidenced by the Agreement will be collectively referred to herein as the "Loan
Documents")
WHEREAS, Borrower and Banks wish to include Norwest Loan Partners as an
additional Bank under the terms of the Agreement and from the date hereof, each
reference to Banks in the Agreement shall also include Norwest Loan Partners;
WHEREAS, Borrower and Banks desire to amend the Agreement, to increase the
principal amount of the PNC Revolving Note and to evidence the Revolving Note of
Norwest in the principal amount of $10,000,000, subject to the terms and
conditions set forth herein;
NOW THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. Amendments.
(a) Section 2, Subsections 2.1(a), (b) and (e) of the Agreement are hereby
amended and restated in their entirety as follows:
2.1. Revolving Credit Loans. (a) Subject to the terms and conditions
hereof, a line of credit facility (the "Facility") is hereby
established pursuant to which each Bank hereby severally agrees to
make revolving loans (the "Loans") to Borrower at Borrower's request
from time to time during the term of this Agreement in an aggregate
amount not to exceed $45,000,000 minus the face amounts outstanding
under any Letter(s) of Credit. Agent may create and maintain reserves
from time to time based on such credit considerations as Agent may
reasonably deem appropriate. Borrower may borrow, prepay and reborrow
hereunder, provided that the principal amount of all Loans outstanding
at any one time shall not exceed $45,000,000; if the amount of the
Loans outstanding at any time exceeds $45,000,000, Borrower shall
immediately pay the amount of such excess to Agent for the account of
Banks in immediately available funds. Loans will be made ratably by
the respective Banks in proportion to their respective Revolving
Credit Commitment Percentages set forth in Section 2.1 (b), and
repayments of Loans shall be for the account of the respective Banks
in the same proportion (subject to the provisions of this Agreement
relating to Defaulting Banks).
(b) The Revolving Credit Commitment and Revolving Credit Commit-
ment Percentage of each Bank and the Total Revolving Credit Commitment
are as set forth below:
The Fifth Third Bank $20,000,000 44.45%
PNC Bank, Ohio, National Association $15,000,000 33.33%
Norwest Loan Partners $10,000,000 22.22%
Total Revolving Credit Commitment $45,000,000 100%.
(e) On the execution date of the First Amendment to the Credit
Agreement (the "Amendment"), Borrower will duly issue and deliver to
each Bank an amended and restated Revolving Note in the form of
Exhibits 2.1(e) (i), (ii) and (iii) respectively (collectively the
"Revolving Notes" and each a "Revolving Note") in the principal amount
of such Bank's Revolving Credit Commitment. Each Revolving Note shall
bear interest as set forth in the respective Revolving Notes and each
shall be dated the date of the Amendment.
(b) Section 11, Subsection 11.6 of the Agreement is hereby amended and
restated in its entirety as follows:
11.6 Notices. Any notices under or pursuant to this Agreement will be
deemed duly sent when delivered in hand or when mailed by registered
or certified mail, return receipt requested, addressed as follows:
THE FIFTH THIRD BANK
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Asset Based Lending Department
PNC BANK, OHIO, NATIONAL ASSOCIATION
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Middle Market Corporate Banking - Third floor
NORWEST LOAN PARTNERS
Norwest Center
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxx
GLOBE BUSINESS RESOURCES, INC.,
Spectrum Office Tower
00000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxx, Senior Vice President, Finance
With a copy to: Xxxxxxx, Muething & Xxxxxxx, P.L.L.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Any party may change such address by sending written notice of the
change to the other parties.
2. Representations, Warranties and Covenants of Borrower. To induce Banks
to enter into this Amendment, Borrower represents and warrants as follows:
(a) Other than as set forth on Schedule 5.3 and Schedule 5.9 attached
hereto, the representations and warranties of Borrower contained in
Section 5 of the Agreement are deemed to have been made again on and
as of the date of execution of this Amendment, and are true and
correct as of the date of execution hereof.
(b) No Event of Default (as such term is defined in Section 8 of the
Agreement) or event or condition which, with the lapse of time or
giving of notice or both, would constitute an Event of Default exists
on the date hereof.
(c) The person executing this Amendment and the Amended and Restated
Revolving Notes, is a duly elected and acting officer of Borrower and
is duly authorized by the Board of Directors of Borrower to execute
and deliver this Amendment and such note on behalf of Borrower.
3. Conditions. Banks' obligations under this Amendment are subject to the
following conditions:
(a) Borrower shall have executed and delivered to Banks the Amended and
Restated Revolving Notes in the form attached hereto as Exhibits
2.1(e)(i), (ii) and (iii) respectively.
(b) The Banks shall have been furnished copies, certified by the Secretary
or assistant Secretary of Borrower, of resolutions of the Board of
Directors of Borrower authorizing the execution of this Amendment, the
Exhibits hereto and all other documents executed in connection
herewith which resolutions will be in the form attached hereto as
Exhibit A.
(c) The representations and warranties of Borrower in Section 2 hereof
shall be true and correct on the date of execution of this Amendment.
(d) On the execution date of this First Amendment, Borrower will pay to
Agent a fee in the amount of $10,000 (the "Agent Fee"), which is
intended to reimburse Agent for its costs and expenses associated with
the arrangement and facilitation of the transactions contemplated
under this Amendment. Neither PNC nor Norwest shall participation in
the Agent Fee.
4. General.
(a) Except as expressly modified hereby, the Agreement remains unaltered
and in full force and effect. Borrower acknowledges that Banks have
made no oral representations to Borrower with respect to the Agreement
and this Amendment thereto and that all prior understandings between
the parties are merged into the Agreement as amended by this writing.
All Loans outstanding on the date of execution of this Amendment shall
be considered for all purposes to be Loans outstanding under the
Agreement as amended by this Amendment.
(b) Capitalized terms used and not otherwise defined herein will have the
meanings set forth in the Agreement.
(c) Nothing contained herein will be construed as waiving any default or
Event of Default under the Agreement or will affect or impair any
right, power or remedy of the Banks under or with respect to the
Loans, the Agreement, as amended, the Note, as amended and restated,
or any agreement or instrument guaranteeing, securing or otherwise
relating to the Loans.
(d) This Amendment shall be considered an integral part of the Agreement,
and all references to the Agreement in the Agreement itself or any
document referring thereto shall, on and after the date of execution
of this Amendment, be deemed to be references to the Agreement as
amended by this Amendment.
(e) This Amendment will be binding upon and inure to the benefit of
Borrower and Banks and their respective successors and assigns.
(f) All representations, warranties and covenants made by Borrower herein
will survive the execution and delivery of this Amendment.
(g) This Amendment will, in all respects, be governed and construed in
accordance with the laws of the State of Ohio.
(h) This Amendment may be executed in one or more counterparts, each of
which will be deemed an original and all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, Borrower and Banks have executed this Agreement by
their duly authorized officers as of the date first above written.
GLOBE BUSINESS RESOURCES, INC.
By: /s/Xxxxxx X. Xxxx
-----------------------------------------
Its: Senior Vice President-Finance
and Treasurer
PNC BANK, OHIO, NATIONAL ASSOCIATION
By: /s/Xxxxxxxxxxx X. Xxxxx
-----------------------------------------
Its: Vice President
NORWEST LOAN PARTNERS, a division of Norwest
Bank Minnesota, N.A.
By: /s/X. Xxxxxx Xxxxxxxx
-----------------------------------------
X. Xxxxxx Xxxxxxxx
Its: Vice President
THE FIFTH THIRD BANK,
for itself and as Agent for the Banks
By: /s/Xxxxx X. Xxxx
-----------------------------------------
Its: Vice President
EXHIBIT 2.1(E)(I)
AMENDED AND RESTATED
REVOLVING NOTE
$20,000,000 Cincinnati, Ohio
September 29, 1997
First Amendment and Restatement May 14, 1998
(Effective Date)
For value received, GLOBE BUSINESS RESOURCES, INC., an Ohio corporation
formerly known as and doing business as Globe Furniture Rentals, ("Borrower"),
hereby promises to pay to the order of THE FIFTH THIRD BANK, an Ohio banking
corporation (the "Bank"), at its offices, located at 00 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx 00000, in lawful money of the United States of America and in
immediately available funds, the principal sum of Twenty Million Dollars
($20,000,000) or such lesser unpaid principal amount as may be advanced by Bank
pursuant to the terms of the Credit Agreement, dated September 29, 1997, as
amended by the First Amendment thereto, dated of even date herewith by and
between Borrower, The Fifth Third Bank, Agent, The Fifth Third Bank, PNC Bank,
Ohio, National Association and Norwest Loan Partners, as Banks, as the same may
be further amended from time to time (the "Agreement").
The principal balance outstanding hereunder shall bear interest from the
date of the first advance until paid at a floating rate of interest equal to the
percent per annum set forth below, which rate of interest will fluctuate on a
periodic basis as provided herein to the rate specified by the following table
based upon the ratio of the amount of Borrower's Total Debt to EBITDA, on a
consolidated basis:
TOTAL DEBT TO EBITDA THEN INTEREST RATE EQUALS
Greater than or equal to 1.86 : 1.00 Borrower's option of:
(i) Prime Rate minus. 25% or
(ii) LIBOR Rate plus 1.50%
Less than 1.86 : 1.00 Borrower's option of:
(i) Prime Rate minus .50% or
(ii) LIBOR Rate plus 1.25%
In the event the Borrower meets the requirements set forth above, Borrower
may elect to have all or any portion of the Note in minimum increments of
$1,000,000 per election (provided such amounts are not then subject to another
LIBOR Election) bear interest at the per annum rate equal to the percentage in
excess of the LIBOR Rate as set forth above (a "LIBOR Election"). Such notice
shall be delivered to Agent in writing at least 2 business days prior to the
date of such advance and shall inform Agent of the amount of the Note to be
subject to the LIBOR Election, the LIBOR Interest Period and the effective date
for the LIBOR Interest Period. Borrower shall not be permitted to have more than
six (6) separate LIBOR Elections outstanding at any one time during the term
hereof.
On the Effective Date, the initial interest rates for advances hereunder
will be based upon a Total Debt to EBITDA ratio of greater than 1.86 : 1.00 for
Borrower.
Interest rate changes based upon changes in the foregoing chart will be
made effective as of the date of the first advance hereunder and on the first
day of the calendar month following the review by Agent of Borrower's quarterly
financial statements. In addition to changes occurring pursuant to fluctuations
in the foregoing chart, the interest rate charged hereunder shall change
automatically upon each change in the Prime Rate. Interest will be calculated
based on a 360-day year and charged for the actual number of days elapsed, and
will be payable on the first day of each calendar month commencing June 1, 1998
and continuing on the first (1st) day of each calendar month thereafter during
the term hereof unless an interest rate based upon the LIBOR Rate is in effect,
in which case the accrued interest shall be due and payable at the end of the
LIBOR Interest Period and Agent will remit to Bank its pro-rata share within 1
business day after Agent's receipt thereof. If any amount as to which a LIBOR
Election is in effect is repaid on a day other than the last day of the
applicable LIBOR Interest Period, or becomes payable on a day other than the
last day of the applicable LIBOR Interest Period due to acceleration or
otherwise, the Borrower shall pay, on demand by the Agent, such amount (as
determined by the Agent) as is required to compensate the Banks for any losses,
costs or expenses which the Banks may incur as a result of such payment or
acceleration, including, without limitation, any loss, cost or expense
(including loss of profit) incurred by reason of liquidation or reemployment of
deposits or other funds acquired by the Banks to fund or maintain such amount
bearing interest at the LIBOR Rate plus the percentage as set forth in the chart
above.
After maturity, whether by acceleration or otherwise, this Note will bear
interest, at the election of Bank and without notice to Borrower (computed and
adjusted in the same manner, and with the same effect, as interest hereon prior
to maturity), payable on demand, at a rate per annum equal to the Default Rate,
until paid, and whether before or after the entry of judgment hereon.
The Prime Rate means the rate of interest per annum announced to be its
Prime Rate from time to time by Agent at its principal office in Cincinnati,
Ohio whether or not Agent will at times lend to borrowers at lower rates of
interest, or, if there is no such Prime Rate, then its base rate or such other
rate as may be substituted by Agent for the Prime Rate.
LIBOR Interest Period means, with respect to which amounts outstanding
hereunder will accrue interest at the LIBOR Rate for a period of 30, 60, 90, 120
or 180 days commencing on a business day selected by Borrower pursuant to this
Note. Such LIBOR Interest Period shall end on the day in the succeeding calendar
month which corresponds numerically to the beginning day of such LIBOR Interest
Period, provided, however, that if there is no such numerically corresponding
day in such succeeding month, such LIBOR Interest Period shall end on the last
business day of such succeeding month. If a LIBOR Interest Period would
otherwise end on a day which is not a business day, such LIBOR Interest Period
shall end on the next succeeding business day.
LIBOR Rate means the rate (adjusted for reserves if Bank is required to
maintain reserves with respect to relevant advances) being asked on an amount of
Eurodollar deposits equal to the amount of the Note subject to a LIBOR Election
on the first day of a LIBOR Interest Period and which has a maturity
corresponding to the maturity of the LIBOR Interest Period, as reported by the
TELERATE rate reporting system (or any successor) as determined by Bank by noon
on the Effective Date of the LIBOR Interest Period. Each determination by Bank
of the LIBOR Rate shall be conclusive in the absence of manifest error.
Borrower's right to accrue interest at the LIBOR Rate shall be terminated
automatically if Bank, by telephonic notice, shall notify Borrower that LIBOR
deposits with a maturity equal to the LIBOR Interest Period and in an amount
equal to the then current outstanding principal amount of the Note are not
readily available in the London Inter-Bank Offered Rate Market, or that, by
reason of circumstances affecting such Market, adequate and reasonable methods
do not exist for ascertaining the interest rate applicable to such deposits for
the LIBOR Interest Period.
In addition, notwithstanding anything herein contained to the contrary, if,
prior to or during any period with respect to which the LIBOR Rate is in effect,
any change in any law, regulation or official directive, or in the
interpretation thereof, by any governmental body charged with the administration
thereof, shall make it unlawful for the Bank to find or maintain its funding in
Eurodollars of any portion of the Note subject to the LIBOR Rate or otherwise to
give effect to Bank's obligations as contemplated hereby, (i) Bank may, by
written notice to Borrower, declare Bank's obligations in respect of the LIBOR
Rate to be terminated forthwith, and (ii) the LIBOR Rate with respect to Bank
shall forthwith cease to be in effect, and interest shall from and after such
date be calculated based on the Prime Rate.
On September 30, 2000, all outstanding principal and all accrued and unpaid
interest will be due and payable.
The principal amount of each loan made by Bank under this Note and the
amount of each prepayment made by Borrower under this Note will be recorded by
Bank in the regularly maintained data processing records of Bank. The aggregate
unpaid principal amount of all loans set forth in such records will be
presumptive evidence of the principal amount owing and unpaid on this Note.
However, failure by Bank to make any such entry will not limit or otherwise
affect Borrower's obligations under this Note or the Agreement.
All payments received by Agent under this Note will be applied first to
payment of amounts advanced by Bank on behalf of Borrower or which may be due
for insurance, taxes and attorneys' fees or other charges to be paid by Borrower
pursuant to the Agreement and the Loan Documents (as defined in the Agreement),
then to accrued interest on this Note, then to principal which will be repaid in
the inverse order of maturity.
This Note is one of the Revolving Notes referred to in the Agreement, and
is entitled to the benefits, and is subject to the terms, of the Agreement.
Capitalized terms used but not otherwise defined herein will have the meanings
attributed thereto in the Agreement. The maturity of this Note is subject to
acceleration upon the terms, set forth in the Agreement. Except as otherwise
expressly provided in the Agreement, if any payment on this Note becomes due and
payable on a day other than one on which Agent is open for business (a "Business
Day"), the maturity thereof will be extended to the next Business Day, and
interest will be payable at the rate specified herein during such extension
period.
After the occurrence of an Event of Default, all amounts of principal
outstanding as of the date of the occurrence of such Event of Default will bear
interest at the Default Rate, in Bank's sole discretion, without notice to
Borrower. This provision does not constitute a waiver of any Events of Default
or an agreement by Bank to permit any late payments whatsoever.
In no event will the interest rate on this Note exceed the highest rate
permissible under any law which a court of competent jurisdiction will, in a
final determination, deem applicable hereto. In the event that a court
determines that Bank has received interest and other charges under this Note in
excess of the highest permissible rate applicable hereto, such excess will be
deemed received on account of, and will automatically be applied to reduce the
amounts due to Bank from Borrower under this Note, other than interest, and the
provisions hereof will be deemed amended to provide for the highest permissible
rate. If there are no such amounts outstanding, Bank will refund to Borrower
such excess.
Borrower and all endorsers, sureties, guarantors and other persons liable
on this Note hereby waive presentment for payment, demand, notice of dishonor,
protest, notice of protest and all other demands and notices in connection with
the delivery, performance and enforcement of this Note, and consent to one or
more renewals or extensions of this Note.
This Note is being executed in substitution for the Note, originally dated
September 29, 1997, in the principal amount of $20,000,000, and is not delivered
in repayment thereof.
This Note may not be changed orally, but only by an instrument in writing.
This Note is being delivered in, is intended to be performed in, will be
construed and enforceable in accordance with, and be governed by the internal
laws of, the State of Ohio without regard to principles of conflict of laws.
Borrower agrees that the State and Federal courts in Xxxxxxxx County, Ohio or
any other court in which Bank initiates proceedings will have exclusive
jurisdiction over all matters arising out of this Note, and that service of
process in any such proceeding will be effective if mailed to Borrower at its
address described in the Notices section of the Agreement. BORROWER HEREBY
WAIVES THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE.
GLOBE BUSINESS RESOURCES, INC.
By: /s/Xxxxxx X. Xxxx
---------------------------
Its: Senior Vice President-Finance
and Treasurer
EXHIBIT 2.1(E)(II)
AMENDED AND RESTATED
REVOLVING NOTE
$15,000,000 Cincinnati, Ohio
September 29, 1997
First Amendment and Restatement May 14, 1998
(Effective Date)
For value received, GLOBE BUSINESS RESOURCES, INC., an Ohio corporation
formerly known as and doing business as Globe Furniture Rentals ("Borrower"),
hereby promises to pay to the order of PNC BANK, OHIO, NATIONAL ASSOCIATION, a
national banking association (the "Bank"), at Agent's offices, located at 00
Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, in lawful money of the United
States of America and in immediately available funds, the principal sum of
Fifteen Million Dollars ($15,000,000) or such lesser unpaid principal amount as
may be advanced by Bank pursuant to the terms of the Credit Agreement, dated
September 29, 1997, as amended by the First Amendment thereto, dated of even
date herewith by and between Borrower, The Fifth Third Bank, Agent, The Fifth
Third Bank, PNC Bank, Ohio, National Association and Norwest Loan Partners, as
Banks, as the same may be further amended from time to time (the "Agreement").
The principal balance outstanding hereunder shall bear interest from the
date of the first advance until paid at a floating rate of interest equal to the
percent per annum set forth below, which rate of interest will fluctuate on a
periodic basis as provided herein to the rate specified by the following table
based upon the ratio of the amount of Borrower's Total Debt to EBITDA, on a
consolidated basis:
TOTAL DEBT TO EBITDA THEN INTEREST RATE EQUALS
Greater than or equal to 1.86 : 1.00 Borrower's option of:
(i) Prime Rate minus. 25% or
(ii) LIBOR Rate plus 1.50%
Less than 1.86 : 1.00 Borrower's option of:
(i) Prime Rate minus .50% or
(ii) LIBOR Rate plus 1.25%
In the event the Borrower meets the requirements set forth above, Borrower
may elect to have all or any portion of the Note in minimum increments of
$1,000,000 per election (provided such amounts are not then subject to another
LIBOR Election) bear interest at the per annum rate equal to the percentage in
excess of the LIBOR Rate as set forth above (a "LIBOR Election"). Such notice
shall be delivered to Agent in writing at least 2 business days prior to the
date of such advance and shall inform Agent of the amount of the Note to be
subject to the LIBOR Election, the LIBOR Interest Period and the effective date
for the LIBOR Interest Period. Borrower shall not be permitted to have more than
six (6) separate LIBOR Elections outstanding at any one time during the term
hereof.
On the Effective Date, the initial interest rates for advances hereunder
will be based upon a Total Debt to EBITDA ratio of greater than 1.86 : 1.00 for
Borrower.
Interest rate changes based upon changes in the foregoing chart will be
made effective as of the date of the first advance hereunder and on the first
day of the calendar month following the review by Agent of Borrower's quarterly
financial statements. In addition to changes occurring pursuant to fluctuations
in the foregoing chart, the interest rate charged hereunder shall change
automatically upon each change in the Prime Rate. Interest will be calculated
based on a 360-day year and charged for the actual number of days elapsed, and
will be payable on the first day of each calendar month commencing June 1, 1998
and continuing on the first (1st) day of each calendar month thereafter during
the term hereof unless an interest rate based upon the LIBOR Rate is in effect,
in which case the accrued interest shall be due and payable at the end of the
LIBOR Interest Period and Agent will remit to Bank its pro-rata share within 1
business day after Agent's receipt thereof. If any amount as to which a LIBOR
Election is in effect is repaid on a day other than the last day of the
applicable LIBOR Interest Period, or becomes payable on a day other than the
last day of the applicable LIBOR Interest Period due to acceleration or
otherwise, the Borrower shall pay, on demand by the Agent, such amount (as
determined by the Agent) as is required to compensate the Banks for any losses,
costs or expenses which the Banks may incur as a result of such payment or
acceleration, including, without limitation, any loss, cost or expense
(including loss of profit) incurred by reason of liquidation or reemployment of
deposits or other funds acquired by the Banks to fund or maintain such amount
bearing interest at the LIBOR Rate plus the percentage as set forth in the chart
above.
After maturity, whether by acceleration or otherwise, this Note will bear
interest, at the election of Bank and without notice to Borrower (computed and
adjusted in the same manner, and with the same effect, as interest hereon prior
to maturity), payable on demand, at a rate per annum equal to the Default Rate,
until paid, and whether before or after the entry of judgment hereon.
The Prime Rate means the rate of interest per annum announced to be its
Prime Rate from time to time by Agent at its principal office in Cincinnati,
Ohio whether or not Agent will at times lend to borrowers at lower rates of
interest, or, if there is no such Prime Rate, then its base rate or such other
rate as may be substituted by Agent for the Prime Rate.
LIBOR Interest Period means, with respect to which amounts outstanding
hereunder will accrue interest at the LIBOR Rate for a period of 30, 60, 90, 120
or 180 days commencing on a business day selected by Borrower pursuant to this
Note. Such LIBOR Interest Period shall end on the day in the succeeding calendar
month which corresponds numerically to the beginning day of such LIBOR Interest
Period, provided, however, that if there is no such numerically corresponding
day in such succeeding month, such LIBOR Interest Period shall end on the last
business day of such succeeding month. If a LIBOR Interest Period would
otherwise end on a day which is not a business day, such LIBOR Interest Period
shall end on the next succeeding business day.
LIBOR Rate means the rate (adjusted for reserves if Bank is required to
maintain reserves with respect to relevant advances) being asked on an amount of
Eurodollar deposits equal to the amount of the Note subject to a LIBOR Election
on the first day of a LIBOR Interest Period and which has a maturity
corresponding to the maturity of the LIBOR Interest Period, as reported by the
TELERATE rate reporting system (or any successor) as determined by Bank by noon
on the Effective Date of the LIBOR Interest Period. Each determination by Bank
of the LIBOR Rate shall be conclusive in the absence of manifest error.
Borrower's right to accrue interest at the LIBOR Rate shall be terminated
automatically if Bank, by telephonic notice, shall notify Borrower that LIBOR
deposits with a maturity equal to the LIBOR Interest Period and in an amount
equal to the then current outstanding principal amount of the Note are not
readily available in the London Inter-Bank Offered Rate Market, or that, by
reason of circumstances affecting such Market, adequate and reasonable methods
do not exist for ascertaining the interest rate applicable to such deposits for
the LIBOR Interest Period.
In addition, notwithstanding anything herein contained to the contrary, if,
prior to or during any period with respect to which the LIBOR Rate is in effect,
any change in any law, regulation or official directive, or in the
interpretation thereof, by any governmental body charged with the administration
thereof, shall make it unlawful for the Bank to find or maintain its funding in
Eurodollars of any portion of the Note subject to the LIBOR Rate or otherwise to
give effect to Bank's obligations as contemplated hereby, (i) Bank may, by
written notice to Borrower, declare Bank's obligations in respect of the LIBOR
Rate to be terminated forthwith, and (ii) the LIBOR Rate with respect to Bank
shall forthwith cease to be in effect, and interest shall from and after such
date be calculated based on the Prime Rate.
On September 30, 2000, all outstanding principal and all accrued and unpaid
interest will be due and payable.
The principal amount of each loan made by Bank under this Note and the
amount of each prepayment made by Borrower under this Note will be recorded by
Bank in the regularly maintained data processing records of Bank. The aggregate
unpaid principal amount of all loans set forth in such records will be
presumptive evidence of the principal amount owing and unpaid on this Note.
However, failure by Bank to make any such entry will not limit or otherwise
affect Borrower's obligations under this Note or the Agreement. All payments
received by Agent under this Note will be applied first to payment of amounts
advanced by Bank on behalf of Borrower or which may be due for insurance, taxes
and attorneys' fees or other charges to be paid by Borrower pursuant to the
Agreement and the Loan Documents (as defined in the Agreement), then to accrued
interest on this Note, then to principal which will be repaid in the inverse
order of maturity.
This Note is one of the Revolving Notes referred to in the Agreement, and
is entitled to the benefits, and is subject to the terms, of the Agreement.
Capitalized terms used but not otherwise defined herein will have the meanings
attributed thereto in the Agreement. The maturity of this Note is subject to
acceleration upon the terms, set forth in the Agreement. Except as otherwise
expressly provided in the Agreement, if any payment on this Note becomes due and
payable on a day other than one on which Agent is open for business (a "Business
Day"), the maturity thereof will be extended to the next Business Day, and
interest will be payable at the rate specified herein during such extension
period.
After the occurrence of an Event of Default, all amounts of principal
outstanding as of the date of the occurrence of such Event of Default will bear
interest at the Default Rate, in Bank's sole discretion, without notice to
Borrower. This provision does not constitute a waiver of any Events of Default
or an agreement by Bank to permit any late payments whatsoever.
In no event will the interest rate on this Note exceed the highest rate
permissible under any law which a court of competent jurisdiction will, in a
final determination, deem applicable hereto. In the event that a court
determines that Bank has received interest and other charges under this Note in
excess of the highest permissible rate applicable hereto, such excess will be
deemed received on account of, and will automatically be applied to reduce the
amounts due to Bank from Borrower under this Note, other than interest, and the
provisions hereof will be deemed amended to provide for the highest permissible
rate. If there are no such amounts outstanding, Bank will refund to Borrower
such excess.
Borrower and all endorsers, sureties, guarantors and other persons liable
on this Note hereby waive presentment for payment, demand, notice of dishonor,
protest, notice of protest and all other demands and notices in connection with
the delivery, performance and enforcement of this Note, and consent to one or
more renewals or extensions of this Note.
This Note is being executed in substitution for the Note, originally dated
September 29, 1997, in the principal amount of $10,000,000, and is not delivered
in repayment thereof.
This Note may not be changed orally, but only by an instrument in writing.
This Note is being delivered in, is intended to be performed in, will be
construed and enforceable in accordance with, and be governed by the internal
laws of, the State of Ohio without regard to principles of conflict of laws.
Borrower agrees that the State and Federal courts in Xxxxxxxx County, Ohio or
any other court in which Bank initiates proceedings will have exclusive
jurisdiction over all matters arising out of this Note, and that service of
process in any such proceeding will be effective if mailed to Borrower at its
address described in the Notices section of the Agreement. BORROWER HEREBY
WAIVES THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE.
GLOBE BUSINESS RESOURCES, INC.
By: /s/Xxxxxx X. Xxxx
----------------------------------
Its: Senior Vice President-Finance
and Treasurer
EXHIBIT 2.1(E)(III)
REVOLVING NOTE
$10,000,000 Cincinnati, Ohio
May 14, 1998
(Effective Date)
For value received, GLOBE BUSINESS RESOURCES, INC., an Ohio corporation
formerly known as and doing business as Globe Furniture Rentals ("Borrower"),
hereby promises to pay to the order of NORWEST LOAN PARTNERS, a division of
Norwest Bank Minnesota, N.A. (the "Bank"), at Agent's offices, located at 00
Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, in lawful money of the United
States of America and in immediately available funds, the principal sum of Ten
Million Dollars ($10,000,000) or such lesser unpaid principal amount as may be
advanced by Bank pursuant to the terms of the Credit Agreement, dated September
29, 1997, as amended by the First Amendment thereto, dated of even date herewith
by and between Borrower, The Fifth Third Bank, Agent, The Fifth Third Bank, PNC
Bank, Ohio, National Association and Norwest Loan Partners, as Banks, as the
same may be further amended from time to time (the "Agreement").
The principal balance outstanding hereunder shall bear interest from the
date of the first advance until paid at a floating rate of interest equal to the
percent per annum set forth below, which rate of interest will fluctuate on a
periodic basis as provided herein to the rate specified by the following table
based upon the ratio of the amount of Borrower's Total Debt to EBITDA, on a
consolidated basis:
TOTAL DEBT TO EBITDA THEN INTEREST RATE EQUALS
Greater than or equal to 1.86 : 1.00 Borrower's option of:
(i) Prime Rate minus. 25% or
(ii) LIBOR Rate plus 1.50%
Less than 1.86 : 1.00 Borrower's option of:
(i) Prime Rate minus .50% or
(ii) LIBOR Rate plus 1.25%
In the event the Borrower meets the requirements set forth above, Borrower
may elect to have all or any portion of the Note in minimum increments of
$1,000,000 per election (provided such amounts are not then subject to another
LIBOR Election) bear interest at the per annum rate equal to the percentage in
excess of the LIBOR Rate as set forth above (a "LIBOR Election"). Such notice
shall be delivered to Agent in writing at least 2 business days prior to the
date of such advance and shall inform Agent of the amount of the Note to be
subject to the LIBOR Election, the LIBOR Interest Period and the effective date
for the LIBOR Interest Period. Borrower shall not be permitted to have more than
six (6) separate LIBOR Elections outstanding at any one time during the term
hereof.
On the Effective Date, the initial interest rates for advances hereunder
will be based upon a Total Debt to EBITDA ratio of greater than 1.86 : 1.00 for
Borrower.
Interest rate changes based upon changes in the foregoing chart will be
made effective as of the date of the first advance hereunder and on the first
day of the calendar month following the review by Agent of Borrower's quarterly
financial statements. In addition to changes occurring pursuant to fluctuations
in the foregoing chart, the interest rate charged hereunder shall change
automatically upon each change in the Prime Rate. Interest will be calculated
based on a 360-day year and charged for the actual number of days elapsed, and
will be payable on the first day of each calendar month commencing June 1, 1998
and continuing on the first (1st) day of each calendar month thereafter during
the term hereof unless an interest rate based upon the LIBOR Rate is in effect,
in which case the accrued interest shall be due and payable at the end of the
LIBOR Interest Period and Agent will remit to Bank its pro-rata share within 1
business day after Agent's receipt thereof. If any amount as to which a LIBOR
Election is in effect is repaid on a day other than the last day of the
applicable LIBOR Interest Period, or becomes payable on a day other than the
last day of the applicable LIBOR Interest Period due to acceleration or
otherwise, the Borrower shall pay, on demand by the Agent, such amount (as
determined by the Agent) as is required to compensate the Banks for any losses,
costs or expenses which the Banks may incur as a result of such payment or
acceleration, including, without limitation, any loss, cost or expense
(including loss of profit) incurred by reason of liquidation or reemployment of
deposits or other funds acquired by the Banks to fund or maintain such amount
bearing interest at the LIBOR Rate plus the percentage as set forth in the chart
above.
After maturity, whether by acceleration or otherwise, this Note will bear
interest, at the election of Bank and without notice to Borrower (computed and
adjusted in the same manner, and with the same effect, as interest hereon prior
to maturity), payable on demand, at a rate per annum equal to the Default Rate,
until paid, and whether before or after the entry of judgment hereon.
The Prime Rate means the rate of interest per annum announced to be its
Prime Rate from time to time by Agent at its principal office in Cincinnati,
Ohio whether or not Agent will at times lend to borrowers at lower rates of
interest, or, if there is no such Prime Rate, then its base rate or such other
rate as may be substituted by Agent for the Prime Rate.
LIBOR Interest Period means, with respect to which amounts outstanding
hereunder will accrue interest at the LIBOR Rate for a period of 30, 60, 90, 120
or 180 days commencing on a business day selected by Borrower pursuant to this
Note. Such LIBOR Interest Period shall end on the day in the succeeding calendar
month which corresponds numerically to the beginning day of such LIBOR Interest
Period, provided, however, that if there is no such numerically corresponding
day in such succeeding month, such LIBOR Interest Period shall end on the last
business day of such succeeding month. If a LIBOR Interest Period would
otherwise end on a day which is not a business day, such LIBOR Interest Period
shall end on the next succeeding business day.
LIBOR Rate means the rate (adjusted for reserves if Bank is required to
maintain reserves with respect to relevant advances) being asked on an amount of
Eurodollar deposits equal to the amount of the Note subject to a LIBOR Election
on the first day of a LIBOR Interest Period and which has a maturity
corresponding to the maturity of the LIBOR Interest Period, as reported by the
TELERATE rate reporting system (or any successor) as determined by Bank by noon
on the Effective Date of the LIBOR Interest Period. Each determination by Bank
of the LIBOR Rate shall be conclusive in the absence of manifest error.
Borrower's right to accrue interest at the LIBOR Rate shall be terminated
automatically if Bank, by telephonic notice, shall notify Borrower that LIBOR
deposits with a maturity equal to the LIBOR Interest Period and in an amount
equal to the then current outstanding principal amount of the Note are not
readily available in the London Inter-Bank Offered Rate Market, or that, by
reason of circumstances affecting such Market, adequate and reasonable methods
do not exist for ascertaining the interest rate applicable to such deposits for
the LIBOR Interest Period.
In addition, notwithstanding anything herein contained to the contrary, if,
prior to or during any period with respect to which the LIBOR Rate is in effect,
any change in any law, regulation or official directive, or in the
interpretation thereof, by any governmental body charged with the administration
thereof, shall make it unlawful for the Bank to find or maintain its funding in
Eurodollars of any portion of the Note subject to the LIBOR Rate or otherwise to
give effect to Bank's obligations as contemplated hereby, (i) Bank may, by
written notice to Borrower, declare Bank's obligations in respect of the LIBOR
Rate to be terminated forthwith, and (ii) the LIBOR Rate with respect to Bank
shall forthwith cease to be in effect, and interest shall from and after such
date be calculated based on the Prime Rate.
On September 30, 2000, all outstanding principal and all accrued and unpaid
interest will be due and payable.
The principal amount of each loan made by Bank under this Note and the
amount of each prepayment made by Borrower under this Note will be recorded by
Bank in the regularly maintained data processing records of Bank. The aggregate
unpaid principal amount of all loans set forth in such records will be
presumptive evidence of the principal amount owing and unpaid on this Note.
However, failure by Bank to make any such entry will not limit or otherwise
affect Borrower's obligations under this Note or the Agreement.
All payments received by Agent under this Note will be applied first to
payment of amounts advanced by Bank on behalf of Borrower or which may be due
for insurance, taxes and attorneys' fees or other charges to be paid by Borrower
pursuant to the Agreement and the Loan Documents (as defined in the Agreement),
then to accrued interest on this Note, then to principal.
This Note is one of the Revolving Notes referred to in the Agreement, and
is entitled to the benefits, and is subject to the terms, of the Agreement.
Capitalized terms used but not otherwise defined herein will have the meanings
attributed thereto in the Agreement. The maturity of this Note is subject to
acceleration upon the terms, set forth in the Agreement. Except as otherwise
expressly provided in the Agreement, if any payment on this Note becomes due and
payable on a day other than one on which Agent is open for business (a "Business
Day"), the maturity thereof will be extended to the next Business Day, and
interest will be payable at the rate specified herein during such extension
period.
After the occurrence of an Event of Default, all amounts of principal
outstanding as of the date of the occurrence of such Event of Default will bear
interest at the Default Rate, in Bank's sole discretion, without notice to
Borrower. This provision does not constitute a waiver of any Events of Default
or an agreement by Bank to permit any late payments whatsoever.
In no event will the interest rate on this Note exceed the highest rate
permissible under any law which a court of competent jurisdiction will, in a
final determination, deem applicable hereto. In the event that a court
determines that Bank has received interest and other charges under this Note in
excess of the highest permissible rate applicable hereto, such excess will be
deemed received on account of, and will automatically be applied to reduce the
amounts due to Bank from Borrower under this Note, other than interest, and the
provisions hereof will be deemed amended to provide for the highest permissible
rate. If there are no such amounts outstanding, Bank will refund to Borrower
such excess.
Borrower and all endorsers, sureties, guarantors and other persons liable
on this Note hereby waive presentment for payment, demand, notice of dishonor,
protest, notice of protest and all other demands and notices in connection with
the delivery, performance and enforcement of this Note, and consent to one or
more renewals or extensions of this Note.
This Note may not be changed orally, but only by an instrument in writing.
This Note is being delivered in, is intended to be performed in, will be
construed and enforceable in accordance with, and be governed by the internal
laws of, the State of Ohio without regard to principles of conflict of laws.
Borrower agrees that the State and Federal courts in Xxxxxxxx County, Ohio or
any other court in which Bank initiates proceedings will have exclusive
jurisdiction over all matters arising out of this Note, and that service of
process in any such proceeding will be effective if mailed to Borrower at its
address described in the Notices section of the Agreement. BORROWER HEREBY
WAIVES THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE.
GLOBE BUSINESS RESOURCES, INC.
By: /s/Xxxxxx X. Xxxx
-------------------------------
Its: Senior Vice President-Finance
and Treasurer
SCHEDULE 5.3
LITIGATION
SCHEDULE 5.9
TITLE
EXHIBIT A
GLOBE BUSINESS RESOURCES, INC.
CERTIFICATE OF BORROWER
RE: $45,000,000 FINANCING
