1
EXHIBIT 10.1
AMENDED AND RESTATED
LOAN AGREEMENT
DATED AS OF
MARCH 31, 2001
AMONG
METATEC INTERNATIONAL, INC.
AND
BANK ONE, NA,
THE HUNTINGTON NATIONAL BANK,
AND
THE OTHER FINANCIAL INSTITUTIONS FROM
TIME TO TIME PARTY HERETO,
AS BANKS,
AND
THE HUNTINGTON NATIONAL BANK,
AS ADMINISTRATIVE AGENT FOR THE BANKS
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TABLE OF CONTENTS
PAGE
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1. THE LOANS.................................................................6
1.1 EXTENSIONS OF CREDIT...........................................6
1.2 LOAN COMMITMENT................................................6
1.3 REVOLVING LOAN.................................................6
1.4 THE TERM LOAN.................................................10
1.5 ADMINISTRATIVE AGENT AS JOINT CREDITOR........................11
2. INTEREST RATES, PREPAYMENT; FEES AND COSTS...............................11
2.1 INTEREST RATES.................................................11
2.2 [INTENTIONALLY DELETED.].......................................12
2.3 [INTENTIONALLY DELETED.].......................................12
2.4 [INTENTIONALLY DELETED.].......................................12
2.5 [INTENTIONALLY DELETED.].......................................12
2.6 INTEREST CALCULATION AND INTEREST PAYMENT DATE.................12
2.7 ADDITIONAL COSTS...............................................12
2.8 [INTENTIONALLY DELETED.].......................................13
2.9 [INTENTIONALLY DELETED.].......................................13
2.10 [INTENTIONALLY DELETED.].......................................13
2.11 INCREASED CAPITAL..............................................13
2.12 SURVIVAL OF OBLIGATIONS........................................13
2.13 TERMINATION AND PREPAYMENT.....................................13
2.14 FEES...........................................................13
2.15 FEE FOR SUB-FACILITY LETTERS OF CREDIT.........................14
2.16 COSTS AND EXPENSES.............................................14
2.17 GUARANTORS.....................................................14
3. WARRANTIES AND REPRESENTATIONS...........................................15
3.1 CORPORATE ORGANIZATION AND AUTHORITY...........................15
3.2 BORROWING IS LEGAL AND AUTHORIZED..............................15
3.3 TAXES..........................................................15
3.4 COMPLIANCE WITH LAW............................................15
3.5 FINANCIAL STATEMENTS; FULL DISCLOSURE..........................16
3.6 LITIGATION; ADVERSE EFFECTS....................................16
3.7 NO INSOLVENCY..................................................16
3.8 GOVERNMENT CONSENT.............................................16
3.9 TITLE TO PROPERTIES............................................17
3.10 ERISA MATTERS..................................................17
3.11 LABOR MATTERS..................................................18
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3.12 NO DEFAULTS....................................................18
3.13 ENVIRONMENTAL PROTECTION.......................................18
3.14 NO MARGIN LOANS................................................20
3.15 WARRANTIES AND REPRESENTATIONS.................................20
4. COMPANY'S BUSINESS COVENANTS.............................................20
4.1 PAYMENT OF TAXES AND CLAIMS....................................21
4.2 MAINTENANCE OF PROPERTIES AND CORPORATE EXISTENCE..............21
4.3 SALE OF ASSETS, MERGER, SUBSIDIARIES, TRADENAMES, CONDUCT OF
BUSINESS.......................................................21
4.4 NEGATIVE PLEDGE................................................22
4.5 OTHER BORROWINGS AND CONTINGENT LIABILITIES....................22
4.6 COMPLIANCE WITH LAWS...........................................23
4.7 SALE OF ACCOUNTS; NO CONSIGNMENT...............................23
4.8 OWNERSHIP AND MANAGEMENT.......................................23
4.9 ACQUISITION OF CAPITAL STOCK...................................23
4.10 CASH DIVIDENDS AND OTHER DISTRIBUTIONS.........................23
4.11 TRANSACTIONS WITH AFFILIATES...................................23
4.12 MINIMUM CONSOLIDATED TANGIBLE NET WORTH........................24
4.13 INTENTIONALLY DELETED..........................................24
4.14 INTENTIONALLY DELETED..........................................24
4.15 INTENTIONALLY DELETED..........................................24
4.16 ENVIRONMENTAL COMPLIANCE AND INDEMNIFICATION...................24
4.17 LOANS, ADVANCES AND INVESTMENTS................................25
4.18 INTENTIONALLY DELETED..........................................25
4.19 CAPITAL EXPENDITURE LIMITATION.................................25
4.20 INTENTIONALLY DELETED..........................................26
4.21 MINIMUM EBITDA.................................................26
4.22 SUBSIDIARY COMPLIANCE..........................................27
4.23 TURNAROUND CONSULTANT..........................................31
5. FINANCIAL INFORMATION AND REPORTING; REGULATORY REPORTS..................31
5.1 FINANCIAL INFORMATION AND REPORTING............................31
5.2 REGULATORY REPORTS.............................................32
6. DEFAULT..................................................................32
6.1 EVENTS OF DEFAULT..............................................32
6.2 DEFAULT REMEDIES...............................................33
7. THE ADMINISTRATIVE AGENT.................................................33
7.1 APPOINTMENT....................................................33
7.2 NATURE OF DUTIES, EXCULPATION..................................34
7.3 LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT AND RESIGNATION...35
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7.4 RIGHT TO REQUEST INSTRUCTIONS.................................35
7.5 RELIANCE......................................................35
7.6 RELATIONS AMONG BANKS.........................................36
7.7. CONCERNING THE COLLATERAL AND THE LOAN DOCUMENTS..............36
7.8 SETOFF........................................................38
7.9 RATABLE SHARING...............................................39
7.10 INDEMNIFICATION...............................................39
7.11 THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY...........40
7.12 AMENDMENT AND MODIFICATIONS...................................40
7.13 COMMITMENT PERCENTAGE.........................................41
7.14 PRO RATA TREATMENT AND PAYMENTS...............................41
7.15 FUNDING OF ADVANCES...........................................41
7.16 SUCCESSORS AND ASSIGNS........................................41
8. MISCELLANEOUS.............................................................44
8.1 NOTICES........................................................44
8.2 ACCESS TO ACCOUNTANTS..........................................45
8.3 CONFIDENTIALITY................................................45
8.4 REPRODUCTION OF DOCUMENTS......................................45
8.5 SURVIVAL, SUCCESSORS AND ASSIGNS...............................46
8.6 AMENDMENT AND WAIVER, DUPLICATE ORIGINALS......................46
8.7 UNIFORM COMMERCIAL CODE AND GENERALLY ACCEPTED ACCOUNTING
PRINCIPLES.....................................................46
8.8 ENFORCEABILITY AND GOVERNING LAW...............................47
8.9 WAIVER OF RIGHT TO TRIAL BY JURY...............................47
8.10 ADVERTISING....................................................47
8.12 NO CONSEQUENTIAL DAMAGES; RELEASE..............................47
8.13 INDEMNITY......................................................48
8.14 CONDITIONS PRECEDENT TO SUBSEQUENT EXTENSIONS OF CREDIT........48
8.15 TERMINATION....................................................48
8.16 INDEX OF DEFINITIONS...........................................49
EXHIBITS
Exhibit A Notice of Borrowing
Exhibit B-1 Revolving Note
Exhibit B-2 Term Note
Exhibit C Borrowing Base Certificate
Exhibit D Compliance Certificate
SCHEDULES
Schedule 3.6 Schedule of Pending or Threatened Litigation
Schedule 3.10 Schedule of ERISA Plans
Schedule 3.13 Schedule of Environmental Law Concerns
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Schedule 4.3 Schedule of Subsidiaries
Schedule 4.4 Schedule of Permitted Liens
Schedule 4.5 Schedule of Existing Indebtedness
Schedule 4.23 Schedule of Approved Consultants (Nonexclusive)
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AMENDED AND RESTATED
LOAN AGREEMENT
This Amended and Restated Loan Agreement (this "Agreement") is entered into
at Columbus, Ohio, as of the 31st day of March, 2001, by and among (a) Metatec
International, Inc. (successor by merger to Metatec Corporation), an Ohio
corporation ("Company"), as borrower, (b) the financial institutions from time
to time party hereto, as lenders, whether by execution of this Agreement or an
assignment and acceptance acceptable to the Administrative Agent (collectively,
the "Banks" and individually a "Bank"), and (c) The Huntington National Bank
("Huntington"), as Administrative Agent for the Banks (Huntington in such
capacity, the "Administrative Agent").
This Agreement amends and restates in full the terms of a certain Loan
Agreement dated as of September 11, 1998 (as amended by a First Amendment to
Loan Agreement dated as of December 23, 1998, by a Second Amendment to Loan
Agreement dated as of March 8, 1999, by a Third Amendment to Loan Agreement
dated as of March 22, 2000, and by a Fourth Amendment to Loan Agreement dated as
of August 14, 2000, the "Loan Agreement"), and executed by and among the
Company, the Administrative Agent and the Banks.
THE LOANS.
EXTENSIONS OF CREDIT. Subject to the terms and conditions hereof, including,
without limitation, the individual limitations set forth below, the Banks,
severally, will extend credit to the Company up to the aggregate sum of
$25,958,000.00 (the "Loans"). Subject to the terms and conditions hereof, the
Loans shall be comprised of (a) a revolving loan facility for the Company, which
each Bank shall extend severally, and not jointly, up to such Bank's Loan
Commitment, which revolving loan facility in the aggregate shall not exceed the
maximum principal sum of $13,000,000.00 (the "Revolving Loan"), and (b) a term
loan facility for the Company, which each Bank shall extend severally, and not
jointly, up to such Bank's Loan Commitment, which term loan facility in the
aggregate shall not exceed the maximum principal sum of $12,958,000.00 (the
"Term Loan").
LOAN COMMITMENT. As used herein with respect to any Bank, "Loan Commitment"
means with respect to the principal balance of (a) the Revolving Loan, the
product of (i) such Bank's Commitment Percentage (as hereinafter defined)
multiplied by (ii) $13,000,000.00, and (b) the Term Loan, the product of (i)
such Bank's Commitment Percentage multiplied by (ii) 12,958,000.00.
REVOLVING LOAN.
(a) FREQUENCY AND AMOUNT OF ADVANCES. Subject to the terms and conditions
hereof, the Company may borrow and repay any outstanding advance under the
Revolving Loan on any Business Day (as hereinafter defined), and any
amounts so repaid may be re-borrowed. "Business Day" means a day which is
not a Saturday or Sunday or a legal holiday and on which Huntington is not
required by law or other governmental action to close in Ohio. The
principal balance of the Revolving Loan shall not exceed an amount equal to
the lesser of (i) $13,000,000.00, or (ii) the sum of (A) 80% of Eligible
Domestic Accounts (as hereinafter defined), PLUS (B) 30% of Eligible
Domestic Inventory (as hereinafter defined), PLUS (C) 90% of Eligible
Domestic Machinery and Equipment (as hereinafter defined) (collectively,
the "Borrowing Base"). With respect to Eligible Domestic Accounts, such
formula may be adjusted by the Required Banks (as defined in Section 7.1)
in their reasonable business judgment following the completion from time
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to time of asset-based-lending-type field examinations of the accounts and
inventory of the Company (the fees and expenses associated with such field
examinations to be borne by the Company). Commencing not later than July 1,
2001, all of the Company's accounts (including accounts that are not
Eligible Domestic Accounts) shall be collected through lockbox arrangements
to be entered into between the Company and the Administrative Agent, and
cash collateral and controlled disbursement account arrangements shall also
to be entered into between the Company and the Administrative Agent not
later than July 1, 2001.
The Company's right to obtain advances under the Revolving Loan shall
terminate on March 29, 2002. Each advance requested by the Company under
the Revolving Loan shall be accompanied by such documents or communications
as may be acceptable to the Administrative Agent in its sole discretion.
The Company acknowledges and agrees that the unpaid principal balance
of cash advances under the Revolving Loan is $10,950,000.00 as of March 31,
2001.
(b) LETTER OF CREDIT SUB-FACILITY. Subject to the terms and conditions
hereof, as a sub-facility under the Revolving Loan, the Administrative
Agent, upon the application of the Company, will issue standby letters of
credit (the "Sub-Facility Letters of Credit") in an aggregate stated value
at any one time outstanding of not more than $2,050,000.00 (the
"Sub-Facility"); provided, however, that all Sub-Facility Letters of Credit
issued under this Subsection (b) shall expire not later than March 31,
2002; and provided further, however, that nothing set forth in this
Subsection (b) shall permit or be construed to permit at any time the
outstanding principal balance of the Revolving Loan, inclusive of the
undrawn stated amounts of all outstanding Sub-Facility Letters of Credit,
to exceed $13,000,000.00. For purposes of determining the remaining
availability under the Revolving Loan, each issuance of a Sub-Facility
Letter of Credit by the Administrative Agent shall constitute an advance
under the Revolving Loan in the stated amount of the Sub-Facility Letter of
Credit as of the date of issuance. Each issuance of a Sub-Facility Letter
of Credit by the Administrative Agent shall be deemed evidenced by the
Revolving Note.
The Company agrees to pay to the Administrative Agent, for the ratable
benefit of the Banks, in consideration of the issuance of each Sub-Facility
Letter of Credit a per annum fee calculated in accordance with the pricing
grid set forth in Section 2.15 of this Agreement equal to the percentage
represented by the applicable Sub-Facility L/C Fee times the undrawn stated
amount of such Sub-Facility Letter of Credit, such fee to be due and
payable annually in advance commencing on the date of issuance of such
Sub-Facility Letter of Credit. The Company further agrees to pay quarterly
in arrears, on the last Business Day of each quarter, to the Administrative
Agent, for the Administrative Agent's own account, a fronting fee
("Fronting Fee") at a rate equal to 0.125% per annum on the average daily
undrawn stated amount of each outstanding Sub-Facility Letter of Credit.
Immediately upon the payment by the Administrative Agent of any sum
drawn by the beneficiary of an outstanding Sub-Facility Letter of Credit,
the amount of such payment shall be automatically transferred to the
Administrative Agent as a cash advance under the Revolving Loan, thereby
converting such amount from an advance by
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the Administrative Agent under the Sub-Facility to a cash advance by the
Banks (subject to each Bank's Commitment Percentage) under the Revolving
Loan. Immediately upon the payment by the Administrative Agent of any sum
drawn by the beneficiary of an outstanding Sub-Facility Letter of Credit,
the amount of such payment shall bear interest from the date such advance
is made until paid in full as provided in Section 2.1 of this Agreement.
(c) NOTICES OF BORROWING. When the Company desires to borrow under the
Revolving Loan, it shall deliver to the Administrative Agent, no later than
1:00 P.M. (Columbus, Ohio time) on the Business Day immediately preceding
the proposed funding, an irrevocable notice of borrowing in substantially
the form set forth in EXHIBIT A attached hereto or in such other form as
may be satisfactory to the Administrative Agent. Such notice of borrowing
shall specify the amount and date of the proposed Revolving Loan advance
and shall also set forth instructions for the disbursement of the proceeds
of the proposed Revolving Loan advance, and any applicable instructions,
terms and conditions if the advance is to be made in the form of the
issuance of Sub-Facility Letters of Credit.
(d) OBLIGATION TO FUND REVOLVING LOAN ADVANCES. The Banks, or any of them,
shall have no obligation to advance any sums or to issue any Sub-Facility
Letters of Credit under the Revolving Loan upon the occurrence and
continuance of an Event of Default (as hereinafter defined) or upon the
occurrence of an event which, but for the giving of notice or the lapse of
time or both, would constitute an Event of Default.
(e) USE OF PROCEEDS. The net proceeds of the Revolving Loan shall be used
for general corporate purposes.
(f) EVIDENCE OF INDEBTEDNESS. The Revolving Loan shall be evidenced by a
note or by one or more notes (collectively, the "Revolving Note")
subsequently executed in substitution therefor, each in substantially the
form set forth in EXHIBIT B-1 attached hereto.
(g) INTEREST. Interest accrued with respect to the Revolving Loan shall be
due and payable on each Interest Payment Date (as hereinafter defined).
(h) TERMINATION. The unpaid principal balance of the Revolving Loan,
together with all accrued and unpaid interest and all fees, charges and
other outstanding obligations arising in connection with the Revolving
Loan, shall be due and payable in full at maturity, which shall occur on
the earlier of acceleration or April 1, 2002 (the "Termination Date").
(i) ELIGIBILITY.
(1) The term "Eligible Domestic Accounts" means the portion of the
Company's accounts that the Administrative Agent determines from time to
time in its sole discretion, based on credit policies, market conditions,
the Company's business and other criteria, is eligible for use in
calculating the Borrowing Base. Without limiting the Administrative Agent's
right to determine which accounts are Eligible Domestic Accounts, no
account will be an Eligible Domestic Account in calculating the
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Borrowing Base, unless, at a minimum, such account is unconditionally due
and owing to the Company, exclusive of sales or other taxes, from a party
("Account Debtor") which meets the qualifications stated herein, conforms
to the warranties regarding the accounts set forth herein and/or in the
governing security agreement(s) in favor of the Administrative Agent, and
meets all of the following requirements until it is collected in full: (a)
the account remains due and payable (in U.S. dollars) and not more than 90
days have elapsed from the date of the original invoice therefor, or if a
special dating program has been approved in writing by the Banks, the
account is due and payable on a date permitted by the terms of such dating
program and is not past-due; (b) the account arises from the Company's
completed performance of a sale of goods and/or related services in the
ordinary course of business and does not constitute an advance billing, all
such goods have been lawfully shipped and invoiced to the Account Debtor,
and upon the Administrative Agent's request, copies of all invoices,
together with all shipping documents and delivery receipts evidencing any
shipment have been delivered to the Administrative Agent; (c) the account
does not arise from a contract with a consumer or from a contract with any
government or agency thereof (unless with respect to accounts arising out
of contracts with or orders from the United States or any department,
agency or instrumentality thereof, the Company shall have complied with the
provisions applicable thereto set forth herein and/or in the governing
security agreement(s) in favor of the Administrative Agent; (d) the account
is not subject to any prior assignment, claim, lien, security interest, or
subject to any levy or setoff; (e) the account is not subject to any
credit, contra account, allowance, adjustment, levy, return of goods, or
discount (collectively a "Contra"); provided, however, that if the Account
Debtor has asserted a Contra, if the amount of the account exceeds the
amount of the Contra, such excess portion of the account shall be deemed to
be an Eligible Account to the extent of such excess if such excess meets
all other requirements in this paragraph; (f) the account does not arise
from a transaction with an Affiliate (as defined in Section 4.11); (g) the
account does not, when added to all other accounts of the Account Debtor
with the Company, produce an aggregate indebtedness from the Account Debtor
of more than 25% of the total of all the Company's Eligible Domestic
Accounts; (h) the Account Debtor is not subject to bankruptcy, insolvency,
receivership or similar proceedings or is not insolvent; (i) the account is
not evidenced by any chattel paper, promissory note, payment instrument or
written agreement; (j) the account does not arise from an Account Debtor to
whom the Company has determined to ship goods on a "cash on delivery" or
C.O.D. basis; (k) the account does not arise from an Account Debtor which,
in the aggregate, has more than 25% of its accounts (in number or in dollar
value) with the Company remaining unpaid when more than 90 days have
elapsed from the dates of the original invoices therefor, or, if a special
dating program has been approved in writing by the Banks as specified
above, when more than 30 days have elapsed from the date payment was due
under the terms of such program, or when more than 90 days have elapsed
from the dates of the original invoices therefor, whichever is earlier; and
(l) the Administrative Agent has not notified the Company that the account
or the Account Debtor is unsatisfactory or unacceptable (although the
Administrative Agent reserves the right to do so in its sole discretion at
any time).
(2) The term "Eligible Domestic Inventory" means that portion of the
Company's inventory that is at all times located in the United States and
that conforms to the warranties regarding the inventory set forth herein
and/or in the governing security agreement(s) in favor of the
Administrative Agent and that the Administrative Agent
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determines from time to time, based on credit policies, market conditions,
the Company's business and other matters, is eligible for use in
calculating the Borrowing Base. For purposes of determining the Borrowing
Base, Eligible Domestic Inventory (unless the Administrative Agent agrees
otherwise in writing) shall not include work in process, obsolete or
discontinued inventory, supply items, packaging, the freight portion of raw
materials, inventory in the possession or control of a third person for
processing or storage, consigned inventory, or inventory in transit. All
Eligible Domestic Inventory shall be valued at the lesser of cost (on a
standard cost FIFO basis) or market.
(3) The term "Eligible Domestic Machinery and Equipment" means that
portion of the Company's machinery and equipment that is acceptable to the
Banks in their sole discretion and that is at all times located in the
United States and that conforms to the warranties regarding the machinery
and equipment set forth herein and/or in the governing security
agreement(s) in favor of the Administrative Agent and that the
Administrative Agent determines from time to time, based on credit
policies, market conditions, the Company's business and other matters, is
eligible for use in calculating the Borrowing Base. For purposes of
determining the Borrowing Base, Eligible Domestic Machinery and Equipment
(unless the Administrative Agent agrees otherwise in writing) shall not
include items of machinery or equipment that are obsolete, materially
damaged or in the possession or control of a third person or in transit.
All Eligible Domestic Machinery and Equipment shall be valued at orderly
liquidation value based upon an appraisal to be completed by June 15, 2001.
The Administrative Agent shall select an appraiser to conduct an appraisal
(at fair market and orderly liquidation values) of the Company's machinery
and equipment, and the fees and expenses associated with such appraisal
shall be borne by the Company.
THE TERM LOAN.
(a) SINGLE ADVANCE. Prior to the date of this Agreement, the Company
borrowed the proceeds of the Term Loan in a single advance. The Company
acknowledges and agrees that amounts repaid with respect to the Term Loan
may not be re-borrowed. The Company further acknowledges and agrees that
the unpaid principal balance of the Term Loan is $12,958,000.00 as of the
date of this Agreement.
(b) [Intentionally Deleted.]
(c) [Intentionally Deleted.]
(d) EVIDENCE OF INDEBTEDNESS. The Term Loan shall be evidenced by a note or
by one or more notes (collectively, the "Term Note") subsequently executed
in substitution therefor, each in substantially the form set forth in
EXHIBIT B-2 attached hereto. (The Revolving Note and the Term Note are
hereinafter sometimes collectively referred to as the "Notes.")
(e) INTEREST. Interest accrued with respect to the Term Loan shall be due
and payable on each Interest Payment Date.
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(f) AMORTIZATION AND MATURITY. The Term Loan shall be paid as follows:
The unpaid balances of the principal sums of the Term Notes shall be
due and payable as follows:
Combined
Payment Date Payment Amount
------------ --------------
April 30, 2001 $500,000.00
May 31, 2001 $500,000.00
June 30, 2001 $500,000.00
July 31, 2001 $500,000.00
August 31, 2001 $500,000.00
September 30, 2001 $500,000.00
October 31, 2001 $625,000.00
November 30, 2001 $625,000.00
December 31, 2001 $625,000.00
January 31, 2002 $625,000.00
February 28, 2002 $625,000.00
April 1, 2002 $6,833,000.00
The unpaid principal balance of the Term Loan, together with all
accrued and unpaid interest and all fees, charges and other outstanding
obligations arising in connection with the Term Loan, shall be due and
payable in full at maturity, which shall occur on the earlier of
acceleration or the Termination Date.
ADMINISTRATIVE AGENT AS JOINT CREDITOR. For the sole and limited purpose of
complying with the laws of The Netherlands applicable to creditors and security
interests created in favor of creditors, the Company, each of the Banks and the
Administrative Agent agree that the Administrative Agent shall be a joint
creditor (together with each such Bank) with respect to each and every
Obligation (as hereinafter defined) of the Company to each such Bank arising
under or in connection with this Agreement, and that, to the extent that a Bank
has the right hereunder to demand performance by the Company of such
Obligations, the Administrative Agent shall also have the independent right to
demand performance by the Company of such Obligations, but only if such Bank
first consents thereto in writing. Nothing set forth in this Section 1.5 shall
impose any additional obligations or duties on the Administrative Agent or any
Bank, or shall cause the alteration or modification of any term defined in this
Agreement (i.e. "Commitment Percentage," "Loan Commitment," "Required Banks,"
etc.).
INTEREST RATES, PREPAYMENT; FEES AND COSTS.
INTEREST RATES. Commencing as of the date of this Agreement, all advances under
the Loans (including advances outstanding as of such date) shall bear interest
on the unpaid principal amount thereof (from the later of the date of this
Agreement or the date such advances are made) until paid in full at a variable
rate of interest per annum equal to 2.00% in excess of the Prime Rate. Each
change in the Prime Rate shall automatically and immediately change the interest
rate on the Loans without notice to the Company. "Prime Rate" means, with
respect to any advance, for any period, a variable commercial lending rate of
interest per annum as determined from time to time by Huntington, and designated
as Huntington's "Prime Rate," based upon its consideration of economic, money
market, business and competitive factors. The
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Company waives any right to claim that the Prime Rate is an interest rate other
than that rate designated by Huntington as its "Prime Rate" on the grounds that:
(i) such rate may or may not be published or otherwise made known to the
Company; or (ii) Huntington may make loans to certain borrowers at interest
rates which are lower than Huntington's "Prime Rate."
Upon the occurrence of any Event of Default, interest shall thereafter
accrue on the outstanding principal balance of all advances made pursuant to
this Agreement at a per annum rate equal to 350 basis points in excess of the
Prime Rate.
[Intentionally Deleted.]
[Intentionally Deleted.]
[Intentionally Deleted.]
[Intentionally Deleted.]
INTEREST CALCULATION AND INTEREST PAYMENT DATE. Interest with respect to all
advances made in connection with the Loans shall be calculated on a 360-day year
basis and shall be based on the actual number of days which elapse during the
interest calculation period. "Interest Payment Date" means the last day of each
month.
ADDITIONAL COSTS. In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect, or any
interpretation or administration thereof by any governmental authority charged
with the interpretation or administration thereof, or compliance by the
Administrative Agent or any of the Banks with any request or directive of any
such authority (whether or not having the force of law) (each of the foregoing
being referred to as a "Regulatory Requirement"), shall (a) affect the basis of
taxation of payments to the Administrative Agent or any of the Banks of any
amounts payable by the Company under this Agreement (other than taxes imposed on
the overall net income of the Administrative Agent or any of the Banks by the
jurisdiction, or by any political subdivision or taxing authority of any such
jurisdiction, in which the Administrative Agent or any of the Banks has its
principal office), or (b) shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by the Administrative Agent or any of the
Banks, or (c) shall impose any other condition, requirement or charge with
respect to this Agreement or the Loans (including, without limitation, any
capital adequacy requirement, any requirement which affects the manner in which
the Administrative Agent or any of the Banks allocates capital resources to its
commitments or any similar requirement), and the result of any of the foregoing
is to increase the cost to the Administrative Agent or any of the Banks of
making or maintaining the Loans or any advance thereunder, to reduce the amount
of any sum receivable by the Administrative Agent or any of the Banks thereon,
or to reduce the rate of return on the Administrative Agent's or any of the
Banks' capital, then provided such Regulatory Requirement is then being applied
or directed to all banks or to a class of banks, and not just to one or more
banks as a result of their non-compliance with existing laws, treaties, rules or
regulations, or existing directive of an authority interpreting or administering
the same, the Company shall pay to the Administrative Agent or any of the Banks,
as the case may be, from time to time, upon request of the Administrative Agent
or any of the Banks, additional amounts sufficient to compensate the
Administrative Agent or any of the Banks, as the case may be, for such increased
cost, reduced sum receivable
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or reduced rate of return (collectively, "Reduced Earnings") to the extent the
Administrative Agent or any of the Banks, as the case may be, is not compensated
therefor in the computation of the interest rates applicable to the Loans, and
provided such Reduced Earnings are not the result of a decline in the economic
performance of the Administrative Agent or any of the Banks, as the case may be,
not resulting from a Regulatory Requirement. A detailed statement as to the
amount of such increased cost, reduced sum receivable or reduced rate of return,
prepared in good faith and submitted by the Administrative Agent or any of the
Banks, as the case may be, to the Company, shall be conclusive and binding for
all purposes relative hereto, absent error in computation.
[Intentionally Deleted.]
[Intentionally Deleted.]
[Intentionally Deleted.]
INCREASED CAPITAL. If after the date hereof the Banks determine in good faith
that (i) the adoption or implementation of or any change in or in the
interpretation or administration of any law or regulation or any guideline or
request from any central bank or other governmental authority or
quasi-governmental authority exercising jurisdiction, power or control over the
Banks or banks or financial institutions generally (whether or not having the
force of law), compliance with which affects the amount of capital required or
expected to be maintained by the Banks, or any of them, or any corporation
controlling any of the Banks, and (ii) the amount of such capital is increased
by or based upon the making or maintenance by any of the Banks of the Loans, any
participation in or obligation to participate in the Loans, or other advances
made hereunder or the existence of any obligation to make the Loans, then, in
any such case, upon written demand by the Administrative Agent, the Company
shall immediately pay to the Administrative Agent, for the ratable benefit of
the Banks, from time to time as specified by the Administrative Agent,
additional amounts sufficient to compensate the Banks, or any of them, therefor.
Such demand shall be accompanied by a statement as to the amount of such
compensation and include a summary of the basis for such demand with detailed
calculations. Such statement shall be conclusive and binding for all purposes,
absent manifest error in computation.
SURVIVAL OF OBLIGATIONS. The provisions of Section 2.7 shall survive the
termination of this Agreement and the payment in full of all Notes outstanding
pursuant hereto.
TERMINATION AND PREPAYMENT. The Company shall have the option at all times to
permanently terminate the unused portion of the Revolving Loan, in whole or in
part, by providing to the Administrative Agent one Business Days' prior written
notice of the effective date and amount of such termination. The Company shall
have the option at all times to prepay the Term Loan, in whole or in part, by
providing to the Administrative Agent one Business Days' prior written notice of
the effective date and amount of such prepayment, all such amounts to be applied
to scheduled principal payments under the Term Note in inverse order of
maturity.
FEES. On September 11, 2001, the Company shall pay to the Administrative Agent,
for the sole benefit of the Administrative Agent, a fee ("Agent's Fee") in the
amount of $15,000.00. The Company further agrees to pay to the Administrative
Agent, for the ratable benefit of the Banks, a commitment fee ("Commitment Fee")
on the average daily unused portion of the Revolving Loan at an annual rate
equal to 0.375%. The Commitment Fee shall be payable quarterly in
14
arrears beginning on June 30, 2001, and continuing on the last day of each
quarter thereafter throughout the term of this Agreement and at maturity. The
Company further agrees to pay (a) to each of Huntington and Bank One, NA (i) a
fee of $50,000.00 on April 2, 2001, (ii) in the event that all indebtedness
hereunder owing to Huntington and Bank One, NA or their respective successors
and assigns, if any, has not been paid in full prior to July 31, 2001, a fee of
$75,000.00 on or before July 31, 2001, and (iii) in the event that all
indebtedness hereunder owing to Huntington and Bank One, NA or their respective
successors and assigns, if any, has not been paid in full prior to November 30,
2001, a fee of $75,000.00 on or before November 30, 2001; provided, however, no
such fee under clauses (ii) or (iii) shall be due to a Bank or its successors
and assigns, if any, in the event that all indebtedness hereunder owing to such
Bank or such successors and assigns has been paid in full prior to the
applicable date, and (b) to Bank One, NA, in the event that all indebtedness
hereunder owing to Bank One, NA or its successors and assigns has not been paid
in full prior to March 29, 2002, a fee ("Exit Fee") of $100,000.00 on April 1,
2002.
All fees shall be fully earned by the Administrative Agent and the Banks
pursuant to the foregoing provisions of this Agreement on the due date thereof
and, except as otherwise set forth herein or required by applicable law, shall
not be subject to rebate, refund or proration. All fees provided for in this
Section 2.14 shall be deemed to be for compensation for services and are not,
and shall not be deemed to be, interest or any other charge for the use,
forbearance or detention of money.
FEE FOR SUB-FACILITY LETTERS OF CREDIT. The fee for each Sub-Facility Letter of
Credit shall be 2.50% of the stated value thereof.
COSTS AND EXPENSES. The Company further agrees to pay all reasonable costs and
expenses incidental to or in connection with (i) the Loans or any services
provided by the Administrative Agent or the Banks, or any of them, in connection
therewith; (ii) the enforcement of the rights of the Administrative Agent or any
of the Banks in connection with the Loans; (iii) any amendment or modification
of this Agreement or any other loan documents; and (iv) any litigation, contest,
dispute, proceeding or action in any way relating to this Agreement, whether any
of the foregoing are incurred prior to or after the occurrence of an Event of
Default or prior to or after the rendering of a judgment, irrespective of
whether any such Event of Default or rendering of a judgment occurs prior to or
after maturity. Such costs shall include, but not be limited to, reasonable fees
and out-of-pocket expenses of counsel for the Administrative Agent and the
Banks, recording fees, inspection fees, revenue stamps and note and mortgage
taxes, if any. The fees and expenses of counsel for the Administrative Agent
shall be paid not later than 10 days after the Company's receipt of each
statement submitted by counsel for the Administrative Agent. (All indebtedness,
debts and liabilities including, but not limited to, principal, interest,
prepayment fees, late charges, collection costs, attorneys' fees and expenses,
of the Company to the Administrative Agent and the Banks, and each of them,
arising under or in connection with this Agreement, the Notes, any draft,
interest rate contract, currency agreement, application for letter of credit or
otherwise, and any and all renewals of or substitutes therefor or any other
document, instrument or agreement executed in connection with the foregoing are
hereafter referred to collectively as the "Obligations".)
GUARANTORS. Metatec International B.V. (subject to the law of The Netherlands)
and Metatec Worldwide, Inc. (each separately, a "Guarantor," and collectively,
the "Guarantors"), shall
15
unconditionally guarantee the prompt and full payment and complete performance
of the Company's obligations arising in connection with the Loans.
WARRANTIES AND REPRESENTATIONS. IN ORDER TO INDUCE THE ADMINISTRATIVE AGENT AND
THE BANKS TO ENTER INTO THIS AGREEMENT AND TO MAKE THE LOANS AND THE OTHER
FINANCIAL ACCOMMODATIONS TO THE COMPANY DESCRIBED HEREIN, THE COMPANY REPRESENTS
AND WARRANTS TO THE ADMINISTRATIVE AGENT AND TO EACH OF THE BANKS THAT EACH OF
THE FOLLOWING STATEMENTS IS TRUE AND CORRECT:
CORPORATE ORGANIZATION AND AUTHORITY. The Company (a) is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Ohio; (b) has all requisite corporate power and authority and all material
licenses and permits necessary to own and operate its properties and to carry on
its business as now conducted and as presently proposed to be conducted, except
where the failure to obtain any such license or permit will not have a Material
Adverse Effect; and (c) is not doing business or conducting any activity in any
jurisdiction in which it has not duly qualified and become authorized to do
business, except where the failure to so qualify will not have a Material
Adverse Effect. "Material Adverse Effect" means a material adverse effect upon
(i) the business, condition (financial or otherwise), operations, performance or
properties of the Company, (ii) the ability of the Company to perform its
obligations under this Agreement or any document, agreement, guaranty or
instrument executed in connection herewith, or (iii) the rights and remedies of
the Administrative Agent or any of the Banks under this Agreement, or any
document, agreement, guaranty or instrument executed in connection herewith.
BORROWING IS LEGAL AND AUTHORIZED. (a) The Executive Committee of the Board of
Directors of the Company has duly authorized the execution and delivery of this
Agreement and of the Notes and documents contemplated herein, and this
Agreement, the Notes and other documents executed in connection with this
Agreement will constitute valid and binding obligations of the Company
enforceable in accordance with their respective terms; (b) the execution of this
Agreement and the Notes and all documents and the compliance by the Company with
all the provisions of this Agreement (i) are within the corporate powers of the
Company; and (ii) are legal and will not conflict with, result in any breach in
any of the provisions of, constitute a default under, or result in the creation
of any lien or encumbrance upon any property of the Company under the provisions
of, any agreement, charter instrument, bylaw, or other instrument to which the
Company is a party or by which it may be bound; (c) there are no limitations in
any indenture, contract, agreement, mortgage, deed of trust or other agreement
or instrument to which the Company is now a party or by which the Company may be
bound (except those in favor of Huntington) with respect to the payment of
principal or interest on any indebtedness, or the Company's ability to incur
indebtedness, including the Notes to be executed in connection with this
Agreement.
TAXES. All tax returns required to be filed by the Company in any jurisdiction
have in fact been filed, and all taxes, assessments, fees and other governmental
charges upon the Company, or upon any of its properties, which are required to
be paid pursuant to Section 4.1 have been paid. The Company does not know of any
proposed additional tax assessment against it. The accruals for taxes on the
books of the Company for its current fiscal period are adequate.
COMPLIANCE WITH LAW. The Company (a) is not in violation of any laws,
ordinances, governmental rules or regulations to which it is subject, including,
without limitation, any laws, rulings or regulations relating to the Employee
Retirement Income Security Act of 1974 or
16
Section 4975 of the Internal Revenue Code, and (b) has not failed to obtain any
licenses, permits, franchises or other governmental or environmental
authorizations necessary to the ownership of its properties or to the conduct of
its business, except to the extent that any such violation or failure does not
have or is not likely to have a Material Adverse Effect.
FINANCIAL STATEMENTS; FULL DISCLOSURE. The audited financial statements of the
Company for the fiscal year ending December 31, 2000, which have been supplied
to the Administrative Agent and to the Banks, have been prepared in accordance
with generally accepted accounting principles consistently applied ("GAAP") and
fairly represent the financial condition of the Company as of such date. The
financial analyses, reports, business plans, projections and pro forma financial
statements of the Company which have been supplied to the Administrative Agent
are based on reasonable, good faith assumptions about the Company's financial
condition and projected financial condition as of the dates of such financial
information or projections. To the knowledge of the Company, no adverse change
has occurred which would materially and adversely alter any such analyses,
reports, business plans, financial statements, projections or assumptions. The
financial statements, analyses, projections and other reports referred to in
this Section 3.5 do not, nor does this Agreement or any written statement
furnished by the Company to the Administrative Agent or to the Banks in
connection with obtaining the Loans, contain any untrue statement of a material
fact, each as of the date thereof.
LITIGATION; ADVERSE EFFECTS. Except as set forth in SCHEDULE 3.6 attached
hereto, there is no action, suit, audit, proceeding, administrative proceeding,
investigation or arbitration (or series of related actions, suits, audits,
proceedings, investigations or arbitrations) before or by any governmental
authority or private arbitrator pending or, to the knowledge of the Company,
threatened against the Company or any property of the Company (i) challenging
the validity or the enforceability of any of this Agreement, or any loan
document, agreement, or instrument executed in connection herewith, or (ii)
which has had, shall have or is reasonably likely to have a Material Adverse
Effect. The Company is not subject to or in default with respect to any final
judgment, writ, injunction, restraining order or order of any nature, decree,
rule or regulation of any court or governmental authority, in each case which
shall have or is likely to have a Material Adverse Effect.
NO INSOLVENCY. On the date of this Agreement and after giving effect to all
indebtedness of the Company (including the Loans), the Company (a) will be able
to pay its obligations as they become due and payable; (b) has assets, the
present fair saleable value of which, to the knowledge of the Company, exceeds
the amount that will be required to pay its probable liability on its
obligations as the same become absolute and matured; (c) has sufficient
property, the sum of which, to the knowledge of the Company, at a fair valuation
exceeds all of its indebtedness; and (d) will have sufficient capital to engage
in its business. The determination of the foregoing for the Company takes into
account all of the Company's properties and liabilities, regardless of whether,
or the amount at which, any such property or liability is included on a balance
sheet of the Company prepared in accordance with GAAP, including property such
as contingent contribution or subrogation rights, business prospects, and
goodwill.
GOVERNMENT CONSENT. Neither the nature of the Company or of its business or
properties, nor any relationship between the Company and any other entity or
person, nor any circumstance in connection with the execution of this Agreement,
is such as to require a consent, approval or authorization of or filing,
registration or qualification with, any governmental authority on the
17
part of the Company as a condition to the execution and delivery of this
Agreement and the Notes and documents contemplated herein.
TITLE TO PROPERTIES. The Company (a) has good and marketable title to all the
property in which it has a property interest, free from any liens and
encumbrances, except for liens in favor of the Administrative Agent for the
ratable benefit of the Banks, Customary Permitted Liens (as hereinafter
defined), liens identified in SCHEDULE 4.4 attached hereto and liens in favor of
Banc One Leasing Corporation, and (b) has not agreed or consented to cause or
permit in the future (upon the happening of a contingency or otherwise) any of
its property whether now owned or hereafter acquired to be subject to a lien or
encumbrance except as provided in this Section 3.9.
ERISA MATTERS. Neither the Company nor any ERISA Affiliate maintains or
contributes to any Plan other than those set forth in SCHEDULE 3.10 attached
hereto. Each Plan which is intended to be qualified under Section 401(a) of the
Internal Revenue Code of 1986, as amended to the date hereof ("Internal Revenue
Code"), has been determined by the Internal Revenue Service ("IRS") to be so
qualified, and each trust related to any such Plan has been determined to be
exempt from federal income tax under Section 501(a) of the Internal Revenue
Code. Neither the Company nor any ERISA Affiliate knows of any reason why such
Plans or trusts are no longer qualified or exempt following such determination
by the IRS. Except as disclosed in SCHEDULE 3.10, the Company does not maintain
or contribute to any employee welfare benefit plan within the meaning of Section
3(1) of ERISA which provides benefits to employees after termination of
employment other than as required by Section 601 of ERISA. The Company and its
ERISA Affiliates are in compliance in all material respects with the
responsibilities, obligations or duties imposed on them by ERISA, the Internal
Revenue Code and regulations promulgated thereunder with respect to all Plans.
No Benefit Plan has incurred any accumulated funding deficiency (as defined in
Sections 302(a)(2) of ERISA and 412(a) of the Internal Revenue Code) whether or
not waived. Neither the Company nor any ERISA Affiliate nor any fiduciary of any
Plan which is not a Multiemployer Plan (i) has engaged in a nonexempt prohibited
transaction described in Sections 406 of ERISA or 4975 of the Internal Revenue
Code or (ii) has taken or failed to take any action which would constitute or
result in a Termination Event. Neither the Company nor any ERISA Affiliate has
any liability under Sections 4063, 4064, 4069, 4204 or 4212(c) of ERISA. Neither
the Company nor any ERISA Affiliate has incurred any liability to the PBGC which
remains outstanding other than the payment of premiums, and there are no premium
payments which have become due which are unpaid. Schedule B to the most recent
annual report filed with the IRS with respect to each Benefit Plan and furnished
to the Administrative Agent is complete and accurate. Since the date of each
such Schedule B, there has been no material adverse change in the funding status
or financial condition of the Benefit Plan relating to such Schedule B. Neither
the Company nor any ERISA Affiliate has (i) failed to make a required
contribution or payment to a Multiemployer Plan or (ii) made a complete or
partial withdrawal under Sections 4203 or 4205 of ERISA from a Multiemployer
Plan. Neither the Company nor any ERISA Affiliate has failed to make a required
installment or any other required payment under Section 412 of the Internal
Revenue Code on or before the due date for such installment or other payment.
Neither the Company nor any ERISA Affiliate is required to provide security to a
Benefit Plan under Section 401(a)(29) of the Internal Revenue Code due to a Plan
amendment that results in an increase in current liability for the plan year.
Except as set forth in SCHEDULE 3.10, the Company has not, by reason of the
transactions contemplated hereby, incurred any obligation to make any payment to
any employee pursuant to any Plan or existing contract or arrangement.
18
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute. "ERISA Affiliate" means
any (i) corporation which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Internal Revenue Code)
as the Company, (ii) partnership or other trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c) of the
Internal Revenue Code) with the Company, and (iii) member of the same affiliated
service group (within the meaning of Section 414(m) of the Internal Revenue
Code) as the Company or is otherwise treated as a common employee with the
Company under regulations promulgated pursuant to Section 414(o) of the Internal
Revenue Code, any corporation described in clause (i) above or any partnership
or trade or business described in clause (ii) above. "Plan" means an employee
benefit pension plan defined in Section 3(2) of ERISA in respect of which the
Company or any ERISA Affiliate is, or within the immediately preceding six years
was, an "employer" as defined in Section 3(5) of ERISA. "Benefit Plan" means a
defined benefit plan as defined in Section 3(35) of ERISA (other than a
Multiemployer Plan) in respect of which the Company or any ERISA Affiliate is,
or within the immediately preceding six years was, an "employer" as defined in
Section 3(5) of ERISA. "Multiemployer Plan" means a "multiemployer plan" as
defined in Section 4001 (a)(3) of ERISA which is, or within the immediately
preceding six years was, contributed to by the Company or any ERISA Affiliate.
"Termination Event" means (i) a Reportable Event, as defined in Section 4043(c)
of ERISA, unless such notice requirements are either inapplicable or waived
under ERISA; (ii) the withdrawal of the Company or any ERISA Affiliate from a
Benefit Plan during a plan year in which the Company or such ERISA Affiliate was
a "substantial employer" as defined in Section 4001(a)(2) of ERISA, or the
termination of employment of 20% of Benefit Plan participants who are employees
of the Company or any ERISA Affiliate in any one of the four immediately
preceding plan years; (iii) the imposition of an obligation on the Company or
any ERISA Affiliate under Section 4041 of ERISA to provide affected parties
written notice of intent to terminate a Benefit Plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the institution by the Pension
Benefit Guaranty Corporation, or any Person succeeding to the functions thereof
("PBGC"), of proceedings to terminate a Benefit Plan; (v) any event or condition
which might constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Benefit Plan; or (vi) the
partial or complete withdrawal of the Company or any ERISA Affiliate from a
Multiemployer Plan.
LABOR MATTERS. As of the date of this Agreement, there is no collective
bargaining agreement covering any of the employees of the Company. To the
knowledge of the Company, as of the date of this Agreement no attempt to
organize the employees of the Company is pending, threatened, planned or
contemplated.
NO DEFAULTS. No condition exists which would constitute an Event of Default
pursuant to this Agreement. The Company is not in violation in any material
respect of any term of any material agreement, charter instrument, bylaw or
other material instrument to which it is a party or by which it may be bound.
ENVIRONMENTAL PROTECTION.
(a) Except as otherwise set forth in SCHEDULE 3.13 attached hereto, the
Company has not used Hazardous Substances on, from or affecting any of the
Company's real property (whether owned, leased or used by the Company,
collectively, the "Premises") in any manner which violates any
Environmental Laws governing the use, storage, treatment,
19
transportation, manufacture, refinement, handling, production or disposal
of Hazardous Substances, nor has the Company knowingly used Hazardous
Substances on, from or affecting the Premises in any such manner, and, to
the best knowledge of the Company, no present or prior owner of the
Premises or any tenant, subtenant, occupant has used Hazardous Substances
on, from or affecting the Premises in any manner which violates or creates
potential liability under any Environmental Laws governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Substances;
(b) Except as otherwise set forth in SCHEDULE 3.13, the Company has never
received any notice of any violation of any Environmental Laws governing
the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of Hazardous Substances with respect to
the Premises, and to the best knowledge of the Company, there have been no
actions commenced or threatened by any party for noncompliance therewith
with respect to the Premises;
(c) The Company shall keep or cause the Premises to be free of Hazardous
Substances, except to the extent that such Hazardous Substances are stored
and/or used in compliance with all applicable Environmental Laws; and,
without limiting the foregoing, the Company shall not cause or permit the
Premises to be used to generate, manufacture, refine, transport, treat,
store, handle, dispose of, transfer, produce or process Hazardous
Substances, except in compliance with all applicable Environmental Laws,
nor shall the Company knowingly cause or permit, as a result of any
intentional or negligent act or omission on the part of the Company, or any
tenant, subtenant or occupant, a release of Hazardous Substances onto the
Premises;
(d) Except as otherwise set forth in SCHEDULE 3.13, to the knowledge of the
Company, the Company is and has been in compliance with all applicable
Environmental Laws in all material respects; and
(e) The Company shall (i) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions necessary
to clean up and remove any Hazardous Substances on, under, from or
affecting the Premises in accordance with all applicable Environmental
Laws, in accordance with the order and directives of all Governmental
Authorities, and (ii) defend, indemnify and hold harmless the Bank, its
employees, agents, officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs or
expenses of whatsoever kind or nature, known or unknown, contingent or
otherwise, arising out of, or in any way relating to (A) the presence,
disposal, release or threatened release of any Hazardous Substances on over
and under, from or affecting the Premises or the soil, water, vegetation,
buildings, personal property, persons or animals thereon; and (B) any
personal injury (including wrongful death) or property damage (real or
personal) arising out of or relating to such Hazardous Substances
including, without limitation, attorneys' and consultants' fees,
investigation and laboratory fees, court costs and litigation expenses.
The provisions of this Section 3.13 shall be in addition to any and all
other obligations and liabilities the Company may have to the Bank at common law
and shall survive the
20
satisfaction of all Obligations of the Company hereunder or under any other Loan
Document (as hereinafter defined).
As used in this Agreement, "Hazardous Substances" means and include all
hazardous and toxic substances, wastes, materials, compounds, pollutants and
contaminants (including, without limitation, asbestos, polychlorinated
biphenyls, and petroleum products) which are included under or regulated by the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 U.S.C. Section 9601, et seq., the Toxic Substances Control Act, 15
U.S.C. Section 2601, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., the Emergency Planning and Community Right-to-Know
Act, 42 U.S.C. Section 11001, et seq., the Clean Water Act, 33 U.S.C. Section
1251, et seq., the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
Section 136, et seq., the National Environmental Policy Act of 1969, 42 U.S.C.
Section 4321, 42 U.S.C. Section 7401, et seq., and any other federal, state or
local statute, ordinance, law, code, rule, regulation or order regulating or
imposing liability (including strict liability) or standards of conduct
regarding Hazardous Substances (the "Environmental Laws").
NO MARGIN LOANS. None of the transactions contemplated in the Agreement will
violate or result in a violation of Section 7 of the Securities Exchange Act of
1934, as amended, or any regulation issued pursuant thereto, including, without
limitation, Regulation U of the Board of Governors of the Federal Reserve
System, 12 C.F.R., Chapter II. The Company does not own or intend to carry or
purchase any "margin security" within the meaning of said Regulation U. None of
the proceeds of the Loans will be used to purchase or refinance any borrowing,
the proceeds of which were used to purchase any "security" within the meaning of
the Securities Exchange Act of 1934, as amended.
WARRANTIES AND REPRESENTATIONS. On the date of each advance pursuant to the
Loans, the warranties and representations set forth in this Section 3 shall be
true and correct on and as of such date with the same effect as though such
warranties and representations had been made on and as of such date, except to
the extent that such warranties and representations expressly relate to an
earlier date.
COMPANY'S BUSINESS COVENANTS. THE COMPANY COVENANTS THAT ON AND AFTER THE DATE
OF THIS AGREEMENT AND FOR SO LONG AS ANY OF THE OBLIGATIONS PROVIDED FOR HEREIN
REMAIN UNPAID:
21
PAYMENT OF TAXES AND CLAIMS. The Company will pay (a) all taxes, estimated
payments, assessments and governmental charges or levies imposed upon it or its
property or assets or in respect of any of its franchises, businesses, income or
property before any penalty or interest accrues thereon; and (b) all claims of
materialmen, mechanics, carriers, warehousemen, landlords, bailees and other
like persons, (including, without limitation, claims for labor, services,
materials and supplies) for sums which have become due and payable and which by
law may become a lien or encumbrance upon any of the Company's property or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided, however, that no such taxes, assessments and
governmental charges referred to in clause (a) above or claims referred to in
clause (b) above are required to be paid if being contested in good faith by the
Company, by appropriate proceedings diligently instituted and conducted, without
danger of any material risk to the Collateral or the interest of the
Administrative Agent or the Banks therein, without any of the same becoming a
lien upon the Collateral, and if such reserve or other appropriate provision, if
any, as shall be required in accordance with GAAP, shall have been made
therefor.
MAINTENANCE OF PROPERTIES AND CORPORATE EXISTENCE. The Company shall (a)
maintain its property in good condition and make all renewals, replacements,
additions, betterments and improvements thereto which it deems necessary; (b)
maintain, with financially sound and reputable insurers, insurance with respect
to its properties and business against such casualties and contingencies, of
such types (including but not limited to fire and casualty, public liability,
products liability, larceny, embezzlement or other criminal misappropriation
insurance) and in such amounts as are customary in the case of entities of
established reputations engaged in the same or a similar business and similarly
situated; (c) reflect in its financial statements adequate accruals and
appropriations to reserves and keep and maintain proper books of record and
account in which entries in conformity with GAAP shall be made of all dealings
and transactions in relation to its businesses and activities; (d) do or cause
to be done all things necessary (i) to preserve and keep in full force and
effect its existence, rights and franchises, and (ii) to maintain its status as
a corporation duly organized and existing and in good standing under the laws of
the state of its incorporation; (e) conduct continuously and operate actively
its business and take all actions necessary to enforce and protect the validity
of any intellectual property; and (f) not be in violation of any laws,
ordinances, or governmental rules and regulations or fail to obtain any
licenses, permits, franchises or other governmental authorizations necessary to
the ownership of its properties or to the conduct of its business, which
violation or failure to obtain has or is likely to have a Material Adverse
Effect.
SALE OF ASSETS, MERGER, SUBSIDIARIES, TRADENAMES, CONDUCT OF BUSINESS. The
Company will not (a) except in the ordinary course of business or upon the prior
written consent of the Administrative Agent and the Required Banks (as
hereinafter defined), sell, transfer or otherwise dispose of any single personal
property asset in any fiscal year having a value in excess of $50,000.00, sell,
transfer or otherwise dispose of multiple personal property assets in one or
more transactions in any fiscal year having an aggregate value that, when added
to all dispositions of personal property assets by the Company during such
fiscal year, exceeds $100,000.00, or sell, transfer or otherwise dispose of any
real estate; (b) except upon the prior written consent of the Administrative
Agent and the Required Banks, consolidate or merge with, enter into partnerships
or joint ventures with or make investments in any person or entity, or permit
any person or entity to consolidate with or merge into it, or acquire all or
substantially all of the stock, beneficial interests, assets or business of any
person or entity; or (c) conduct
22
business under any tradenames except upon 30 days' prior written notice to and
the delivery of any documents or instruments reasonably requested by the
Administrative Agent.
The Company shall deliver to the Administrative Agent notice of any
proposed sale or other disposition of any real property owned directly or
indirectly by the Company including, without limitation, the real property
located at or in the immediate vicinity of 0000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxx
(the "Dublin Office and Warehouse Complex"). The proceeds from any sale,
financing or refinancing of real property (other than the Dublin Office and
Warehouse Complex) owned directly or indirectly by the Company (less applicable
taxes and expenses of sale) shall be delivered by the Company to the
Administrative Agent, for the ratable benefit of the Banks, immediately upon the
closing of such sale or refinancing. The Banks shall apply such proceeds first
to payments of principal under the Term Loan (in inverse order of maturity) and
then to sums outstanding in connection with the Revolving Loan. Nothing set
forth in the paragraph shall in any way limit, impair or otherwise affect a
certain security interest in favor of the Administrative Agent in the Company's
rights to distributions as the sole member of Meta Management, LLC.
Except as disclosed in SCHEDULE 4.3 attached hereto, the Company has no
subsidiaries and conducts business only in the name of the Company. The Company
shall not engage in any business other than the businesses engaged in by the
Company on the date hereof and any business or activities which are
substantially similar or related thereto, or derived therefrom, without the
prior written consent of the Administrative Agent and the Required Banks.
NEGATIVE PLEDGE. The Company will not cause or permit or permit to exist or
agree or consent to cause or permit in the future (upon the happening of a
contingency or otherwise), any of its personal property or directly or
indirectly owned real property (other than the Dublin Office and Warehouse
Complex), whether now owned or hereafter acquired, to become subject to a lien
or encumbrance, except: (a) liens in connection with deposits required by
workers' compensation, unemployment insurance, social security and other like
laws; (b) taxes, assessments, reservations, exceptions, encroachments,
easements, rights of way, covenants, conditions, restrictions, leases and other
similar title exceptions or encumbrances affecting real property, provided they
do not in the aggregate materially detract from the value of said property or
materially interfere with its use in the ordinary conduct of business; (c)
inchoate liens arising under ERISA to secure the contingent liability of the
Company (collectively (a), (b) and (c) above shall be referred to as the
"Customary Permitted Liens"); (d) liens as set forth in SCHEDULE 4.4 attached to
this Agreement; and (e) liens in connection with secured borrowings permitted by
Section 4.5 below. In addition, the Company will not grant or agree to provide
in the future (upon the happening of a contingency or otherwise), a "negative
pledge" or other covenant or agreement similar to this Section 4.4 in favor of
any other lender, creditor or third party.
OTHER BORROWINGS AND CONTINGENT LIABILITIES. Except for (a) the Loans, (b) loans
from Affiliates (as hereinafter defined) that are subordinated to the Loans on
terms and conditions satisfactory to the Administrative Agent, (c) the existing
indebtedness set forth in SCHEDULE 4.5 attached hereto, (d) capitalized lease
agreements that, in aggregate face amount, do not exceed the sum of $250,000.00:
provided, however, that such restriction not apply to a certain capitalized
lease obligation in the approximate amount of $1,400,000.00 originally incurred
by the Company in fiscal year 1999, (e) purchase money financing transactions
secured by the item or items being purchased in an amount not to exceed the
purchase price of such item or items that, in the aggregate, do not exceed the
sum of $100,000.00 in any one fiscal year, (f) construction
23
mortgage loans and permanent mortgage loans incurred in connection with the
development and construction of the Dublin Office and Warehouse Complex; (g)
mortgage loans incurred in connection with the financing or refinancing of the
Dublin Office and Warehouse Complex; and (h) unsecured trade payables and normal
operating accruals incurred in the ordinary course of the Company's business,
the Company will not (i) create or incur or permit to exist extensions of credit
or indebtedness, including, without limitation, any indebtedness for borrowed
money or advances, letters of credit, or capitalized lease agreements or (ii)
guarantee, indorse or otherwise become surety for or upon the obligations of
others, except by indorsement of negotiable instruments for deposit or
collection in the ordinary course of business, and except for those
accommodation obligations, guaranties, or contingent liabilities disclosed in
SCHEDULE 4.5 attached hereto.
COMPLIANCE WITH LAWS. The Company will comply in all material respects with all
applicable laws, including ERISA and all laws, statutes, regulations and
ordinances regarding the collection, payment and deposit of taxes, and obtain
and keep in force any and all government approvals necessary to the ownership of
the Company's properties or the conduct of the Company's business, to the extent
that any such failure to comply, obtain or keep in force would be reasonably
likely to have a Material Adverse Effect.
SALE OF ACCOUNTS; NO CONSIGNMENT. The Company shall not sell, assign, or
encumber, except to the Administrative Agent for the ratable benefit of the
Banks and to Banc One Leasing Corporation, any of its accounts or notes
receivable. The Company shall not permit any of its inventory to be sold or
transferred on consignment or acquire or possess any of its inventory on
consignment.
OWNERSHIP AND MANAGEMENT. The Company shall not replace or change its chairman,
president, chief executive officer or chief financial officer without the prior
written consent of the Administrative Agent, unless such replacement or change
will not or is not likely to have a Material Adverse Effect.
ACQUISITION OF CAPITAL STOCK. The Company shall not redeem or acquire its own
capital stock, or warrants or securities for its capital stock, except through
the use of the net proceeds from the simultaneous sale of an equivalent amount
of its capital stock for the same purchase or redemption price.
CASH DIVIDENDS AND OTHER DISTRIBUTIONS. Without the prior written consent of the
Administrative Agent and the Required Banks, the Company shall not pay any cash
dividends. The Company shall make no other distributions of any kind to
shareholders.
TRANSACTIONS WITH AFFILIATES. After the date hereof, the Company shall not
directly or indirectly enter into or permit to exist any transactions
(including, without limitation, the purchase, sale, lease or exchange of any
property or the rendering of any service) with any of its Affiliates,
shareholders or any Affiliates of either of the foregoing, on terms that are
less favorable to the Company than those which might be obtained at the time
from persons or entities who are not affiliated with the Company or its
shareholders. "Affiliate" means any individual, partnership, limited liability
company, corporation, or other entity which, directly or indirectly, is in
control of, is controlled by, or is under common control with the Company, or is
a family member related by birth or marriage to any one or more of the foregoing
persons. For the purposes of this definition, "control" of such entity means the
power, directly or indirectly, to vote 10% or
24
more of the securities, units or other measures having ordinary voting power for
the election of directors, management committees, or similar committees of such
entity, or the power to direct or cause the direction of the management and
policies of such entity, whether by contract or otherwise.
MINIMUM CONSOLIDATED TANGIBLE NET WORTH. The Company, on a consolidated basis,
shall maintain at all times a Tangible Net Worth of not less than the following
amounts for the following periods:
PERIOD ENDING MINIMUM TNW
------------- -----------
March, 2001 $11,750,000.00
April, 2001 $10,800,000.00
May, 2001 $9,900,000.00
June, 2001 $9,600,000.00
July, 2001 $8,600,000.00
August, 2001 $8,000,000.00
September, 2001 $8,000,000.00
October, 2001 $7,900,000.00
November, 2001 $7,700,000.00
December, 2001 $7,500,000.00
January, 2002 $7,500,000.00
February, 2002 $7,500,000.00
March, 2002 $7,500,000.00
The Tangible Net Worth figures set forth above will be adjusted to reflect
any tax credits realized by the Company during the period January 1, 2001
through March 31, 2002, such adjustments to be made immediately prior to the end
of the testing period in which such credits are realized.
"Tangible Net Worth" means the Company's equity, MINUS all of the
following: (i) the excess of cost over the value of net assets of purchased
businesses, rights, and other similar intangibles, (ii) organizational expenses,
(iii) intangible assets (to the extent not reflected in the foregoing), (iv)
goodwill, (v) deferred charges or deferred financing costs, (vi) loans or
advances to and/or accounts or notes receivable from Affiliates, and (vii)
non-compete agreements. For the purposes of determining the Company's compliance
with the terms of this Section 4.12, in determining the Company's net income the
Company shall add back (as and when paid) the fees aggregating $500,000.00 that
are payable by the Company to the Banks as specified in Section 2.14 and the
fees that are payable by the Company to an appraiser and to a "turnaround"
consultant as set forth in Sections 1.3(i)(4) and 4.24, respectively.
[Intentionally Deleted.]
[Intentionally Deleted.]
[Intentionally Deleted.]
ENVIRONMENTAL COMPLIANCE AND INDEMNIFICATION. The Company hereby indemnifies the
Administrative Agent and the Banks, and each of them, and holds the
Administrative Agent and
25
the Banks, and each of them, harmless from and against any loss, damage, cost,
expense or liability (including strict liability) directly or indirectly arising
from or attributable to the generation, storage, release, threatened release,
discharge, disposal or presence (whether prior to or during the term of the
Loans) of Hazardous Substances on, under or about the Premises (whether by the
Company or any employees, agents, contractors or subcontractors of the Company
or any predecessor in title or any third persons occupying or present on the
Premises), or the breach of any of the representations and warranties regarding
the Premises, including, without limitation: (a) those damages or expenses
arising under the Environmental Laws; (b) the costs of any repair, cleanup or
detoxification of the Premises, including the soil and ground water thereof, and
the preparation and implementation of any closure, remedial or other required
plans; (c) damage to any natural resources; and (d) all reasonable costs and
expenses incurred by the Administrative Agent and the Banks, or any of them, in
connection with clauses (a), (b) and (c) including, but not limited to,
reasonable attorneys' fees. The Company will not permit any of its employees,
agents, contractors, subcontractors, or any other person occupying or present on
the Premises to generate, manufacture, store, dispose or release on, about or
under the Premises any Hazardous Substances in a manner which would result in
the Premises not complying with the Environmental Laws in any material respect.
The indemnification provided for herein shall not apply to any losses,
liabilities, damages, injuries, expenses or costs which: (i) arise from the
gross negligence or willful misconduct of the Administrative Agent and the
Banks, or any of them, or (ii) relate to Hazardous Substances placed or disposed
of on the Premises after the Administrative Agent and the Banks, or any of them,
acquires title to the Premises through foreclosure or otherwise.
LOANS, ADVANCES AND INVESTMENTS. The Company, on a consolidated basis, will not
make any loans or advances to any Affiliate or to any other person, corporation
or entity in the aggregate in excess of $250,000.00 at any one time outstanding,
without the prior written consent of the Banks; provided, however, that the
Company, on a consolidated basis, may make loans and advances to shareholders
and employees in an aggregate amount of not more than $100,000.00 at any one
time outstanding; and provided further, however, that the foregoing $250,000.00
limit shall not apply to a certain loan made by the Company to Metatec
International B.V. as of September 11, 1998 in the original principal amount of
$5,933,334.00.
[Intentionally Deleted.]
CAPITAL EXPENDITURE LIMITATION. The Company, on a consolidated basis, will not
make, in the aggregate, expenditures for fixed or capital assets, including,
without limitation, the incurrence of capitalized lease obligations or
expenditures for maintenance and repairs which should be capitalized in
accordance with GAAP or otherwise, in excess of following amounts for the
following periods (monthly/quarterly):
PERIOD ENDING CAPITAL EXPENDITURES
------------- --------------------
March, 2001 (Quarter) $1,100,000.00
April, 2001 $350,000.00
May, 2001 $20,000.00
June, 2001 $10,000.00
26
PERIOD ENDING CAPITAL EXPENDITURES
------------- --------------------
July, 2001 $175,000.00
August, 2001 $50,000.00
September, 2001 $10,000.00
October, 2001 $25,000.00
November, 2001 $25,000.00
December, 2001 $25,000.00
December, 2001 (Year) $1,790,000.00
January, 2002 $200,000.00
February, 2002 $200,000.00
March, 2002 $200,000.00
Any portion of a monthly or quarterly capital expenditure allowance set
forth above that is not used in the specified month or quarter of 2001 may be
used by the Company in any subsequent month or quarter of fiscal year 2001, but
no such unused portion may be used by the Company in fiscal year 2002. Any
portion of a monthly capital expenditure allowance set forth above that is not
used in the specified month of 2002 may be used by the Company in the subsequent
month of fiscal year 2002.
[Intentionally Deleted.]
MINIMUM EBITDA. The Company, on a consolidated basis, shall maintain at all
times a minimum EBITDA of not less than the following amounts for the following
periods (monthly [cumulative] / quarterly):
PERIOD ENDING MINIMUM EBITDA
------------- --------------
March, 2001 (Quarter) $885,000.00
April, 2001 (YTD) $970,000.00
May, 2001 (YTD) $1,200,000.00
June, 2001 (YTD) $2,000,000.00
June, 2001 (Quarter) $1,300,000.00
July, 2001 (YTD) $2,200,000.00
August, 2001 (YTD) $2,700,000.00
September, 2001 (YTD) $3,700,000.00
September, 2001 (Quarter) $1,600,000.00
October, 2001 (YTD) $4,500,000.00
November, 2001 (YTD) $5,300,000.00
December, 2001 (YTD) $6,000,000.00
December, 2001 (Quarter) $2,300,000.00
January, 2002 (YTD) $700,000.00
February, 2002 (YTD) $1,500,000.00
March, 2002 (Quarter) $2,300,000.00
In addition, with respect to the Company's Silicon Valley operations, the
Company shall maintain at all times a minimum EBITDA of not less than the
following amounts for the following periods (monthly [cumulative]):
27
PERIOD ENDING MINIMUM EBITDA
------------- --------------
January, 2001 (YTD) ($110,000.00)
February, 2001 (YTD) ($220,000.00)
March, 2001 (YTD) ($330,000.00)
April, 2001 (YTD) ($440,000.00)
May, 2001 (YTD) ($550,000.00)
June, 2001 (YTD) ($660,000.00)
July, 2001 (YTD) ($770,000.00)
August, 2001 (YTD) ($880,000.00)
September, 2001(YTD) ($990,000.00)
October, 2001 (YTD) ($1,100,000.00)
November, 2001 (YTD) ($1,210,000.00)
December, 2001 (YTD) ($1,320,000.00)
January, 2002 (YTD) ($0.00)
February, 2002 (YTD) ($0.00)
March, 2002 (YTD) $100,000.00
As used in this Agreement, "EBITDA" means for any period, the sum of the
Company's consolidated (i) net income for such period determined in accordance
with GAAP, PLUS (ii) interest expense for such period, PLUS (iii) charges for
federal, state, local and foreign income taxes, PLUS (iv) depreciation,
amortization expense and non-cash charges, extraordinary losses and any other
non-recurring expenses during such period, MINUS non-cash gains, extraordinary
gains and any other non-recurring income during such period. For the purposes of
determining the Company's compliance with the terms of this Section 4.21, EBITDA
will be modified to permit the Company to add back (as and when paid) the fees
aggregating $500,000.00 that are payable by the Company to the Banks as
specified in Section 2.14 and the fees that are payable by the Company to an
appraiser and to a "turnaround" consultant as set forth in Sections 1.3(i)(4)
and 4.24, respectively.
SUBSIDIARY COMPLIANCE. As used in this Section 4.22, "Subsidiary" means any
business enterprise, including, without limitation, any corporation, limited
liability company, partnership or other entity owned or controlled by the
Company. For the purposes of this definition, "control" of such entity means the
power, directly or indirectly, to vote 10% or more of the securities, units or
other measures having ordinary voting power for the election of directors,
management committees, or similar committees of such entity, or the power to
direct or cause the direction of the management and policies of such entity,
whether by contract or otherwise.
The Company will cause each Subsidiary to comply with the terms of the
following covenants:
(a) PAYMENT OF TAXES AND CLAIMS. Each Subsidiary will pay (a) all taxes,
estimated payments, assessments and governmental charges or levies imposed
upon it or its property or assets or in respect of any of its franchises,
businesses, income or property before any penalty or interest accrues
thereon; and (b) all claims of materialmen, mechanics, carriers,
warehousemen, landlords, bailees and other like persons, (including,
without limitation, claims for labor, services, materials and supplies) for
sums which have become due and payable and which by law may become a lien
or encumbrance upon any of such Subsidiary's property or assets, prior to
the time when any penalty or
28
fine shall be incurred with respect thereto; provided, however, that no
such taxes, assessments and governmental charges referred to in clause (a)
above or claims referred to in clause (b) above are required to be paid if
being contested in good faith by such Subsidiary, by appropriate
proceedings diligently instituted and conducted, without danger of any
material risk to any of such Subsidiary's property or assets or the
interest of the Administrative Agent or the Banks therein, without any of
the same becoming a lien upon such property or assets, and if such reserve
or other appropriate provision, if any, as shall be required in accordance
with GAAP, shall have been made therefor.
(b) MAINTENANCE OF PROPERTIES AND EXISTENCE. Each Subsidiary shall (a)
maintain its property in good condition and make all renewals,
replacements, additions, betterments and improvements thereto which it
deems necessary; (b) maintain, with financially sound and reputable
insurers, insurance with respect to its properties and business against
such casualties and contingencies, of such types (including but not limited
to fire and casualty, public liability, products liability, larceny,
embezzlement or other criminal misappropriation insurance) and in such
amounts as are customary in the case of entities of established reputations
engaged in the same or a similar business and similarly situated; (c)
reflect in its financial statements adequate accruals and appropriations to
reserves and keep and maintain proper books of record and account in which
entries in conformity with GAAP shall be made of all dealings and
transactions in relation to its businesses and activities; (d) do or cause
to be done all things necessary (i) to preserve and keep in full force and
effect its existence, rights and franchises, and (ii) to maintain its
status as a corporation or limited liability company, as applicable, duly
organized and existing and in good standing under the laws of the state of
its organization; (e) conduct continuously and operate actively its
business and take all actions necessary to enforce and protect the validity
of any intellectual property; and (f) not be in violation of any laws,
ordinances, or governmental rules and regulations or fail to obtain any
licenses, permits, franchises or other governmental authorizations
necessary to the ownership of its properties or to the conduct of its
business, which violation or failure to obtain has or is likely to have a
Material Adverse Effect.
(c) SALE OF ASSETS, MERGER, SUBSIDIARIES, TRADENAMES, CONDUCT OF BUSINESS.
No Subsidiary will (a) except in the ordinary course of business or upon
the prior written consent of the Administrative Agent and the Required
Banks (as hereinafter defined), sell, transfer or otherwise dispose of any
personal property asset in any fiscal year having a value in excess of
$50,000.00, sell, transfer or otherwise dispose of personal property assets
in one or more transactions in any fiscal year having an aggregate value
that, when added to all dispositions of personal property assets by such
Subsidiary, the Company and all other Subsidiaries during such fiscal year,
exceeds $100,000.00 in the aggregate, or sell, transfer or otherwise
dispose of any real estate; (b) except upon the prior written consent of
the Administrative Agent and the Required Banks, consolidate or merge with,
enter into partnerships or joint ventures with or make investments in any
person or entity, or permit any person or entity to consolidate with or
merge into it, or acquire all or substantially all of the stock, beneficial
interests, assets or business of any person or entity; or (c) conduct
business under any tradenames except upon 30 days' prior written notice to
and the delivery of any documents or instruments reasonably requested by
the Administrative Agent.
29
Except as disclosed in SCHEDULE 4.3 attached hereto, no Subsidiary has
any subsidiaries and each Subsidiary conducts business only in the name of
such Subsidiary. No Subsidiary shall engage in any business other than the
business engaged in by such Subsidiary on the date hereof and any business
or activities which are substantially similar or related thereto, or
derived therefrom, without the prior written consent of the Administrative
Agent and the Required Banks.
(d) NEGATIVE PLEDGE. No Subsidiary will cause or permit or permit to exist
or agree or consent to cause or permit in the future (upon the happening of
a contingency or otherwise), any of its real property or personal property,
whether now owned or hereafter acquired, to become subject to a lien or
encumbrance, except: (a) Customary Permitted Liens; (b) liens as set forth
in SCHEDULE 4.4 attached to this Agreement; and (c) liens in connection
with secured borrowings permitted by Subsection 4.22(e) below. In addition,
no Subsidiary will grant or agree to provide in the future (upon the
happening of a contingency or otherwise), a "negative pledge" or other
covenant or agreement similar to this Section 4.22(d) in favor of any other
lender, creditor or third party.
(e) OTHER BORROWINGS AND CONTINGENT LIABILITIES. Except for (a) the Loans,
(b) loans from Affiliates that are subordinated to the Loans on terms and
conditions satisfactory to the Administrative Agent, (c) the existing
indebtedness set forth in SCHEDULE 4.5 attached hereto, (d) capitalized
lease agreements that, in aggregate face amount (on a consolidated basis
with the Company and all other Subsidiaries), do not exceed the sum of
$250,000.00, (e) purchase money financing transactions secured by the item
or items being purchased in an amount not to exceed the purchase price of
such item or items that, in the aggregate (on a consolidated basis with the
Company and all other Subsidiaries), do not exceed the sum of $100,000.00
in any one fiscal year, and (f) unsecured trade payables and normal
operating accruals incurred in the ordinary course of such Subsidiary's
business, no Subsidiary will (i) create or incur or permit to exist
extensions of credit or indebtedness, including, without limitation, any
indebtedness for borrowed money or advances, letters of credit, or
capitalized lease agreements or (ii) guarantee, indorse or otherwise become
surety for or upon the obligations of others, except by indorsement of
negotiable instruments for deposit or collection in the ordinary course of
business, and except for those accommodation obligations, guaranties, or
contingent liabilities disclosed in SCHEDULE 4.5 attached hereto.
(f) COMPLIANCE WITH LAWS. Each Subsidiary will comply in all material
respects with all applicable laws, including ERISA and all laws, statutes,
regulations and ordinances regarding the collection, payment and deposit of
taxes, and obtain and keep in force any and all government approvals
necessary to the ownership of such Subsidiary's properties or the conduct
of such Subsidiary's business, to the extent that any such failure to
comply, obtain or keep in force would be reasonably likely to have a
Material Adverse Effect.
(g) SALE OF ACCOUNTS; NO CONSIGNMENT. No Subsidiary will sell, assign, or
encumber, except to the Administrative Agent for the ratable benefit of the
Banks, any of its accounts or notes receivable. No Subsidiary will permit
any of its inventory to be sold or transferred on consignment or acquire or
possess any of its inventory on consignment. This Section 4.22(g) shall not
apply to Meta Holdings, LLC and/or Meta Management, LLC to the extent that
compliance with the terms hereof would cause
30
Meta Holdings, LLC and/or to Meta Management, LLC to default under any
agreements executed by either or both of them in connection with the
$19,000,000.00 term credit facility identified in SCHEDULE 4.5 attached
hereto.
(h) TRANSACTIONS WITH AFFILIATES. After the date hereof, no Subsidiary
shall directly or indirectly enter into or permit to exist any transactions
(including, without limitation, the purchase, sale, lease or exchange of
any property or the rendering of any service) with any of its Affiliates,
shareholders or any Affiliates of either of the foregoing, on terms that
are less favorable to such Subsidiary than those which might be obtained at
the time from persons or entities who are not affiliated with such
Subsidiary or its shareholders.
(i) ENVIRONMENTAL COMPLIANCE AND INDEMNIFICATION. Each Subsidiary shall
indemnify the Administrative Agent and the Banks, and each of them, and
shall hold the Administrative Agent and the Banks, and each of them,
harmless from and against any loss, damage, cost, expense or liability
(including strict liability) directly or indirectly arising from or
attributable to the generation, storage, release, threatened release,
discharge, disposal or presence (whether prior to or during the term of the
Loans) of Hazardous Substances on, under or about such Subsidiary's
premises (whether by such Subsidiary or any employees, agents, contractors
or subcontractors of such Subsidiary or any predecessor in title or any
third persons occupying or present on such premises), or the breach of any
of the representations and warranties regarding such premises, including,
without limitation: (a) those damages or expenses arising under the
Environmental Laws; (b) the costs of any repair, cleanup or detoxification
of such premises, including the soil and ground water thereof, and the
preparation and implementation of any closure, remedial or other required
plans; (c) damage to any natural resources; and (d) all reasonable costs
and expenses incurred by the Administrative Agent and the Banks, or any of
them, in connection with clauses (a), (b) and (c) including, but not
limited to, reasonable attorneys' fees. No Subsidiary will permit any of
its employees, agents, contractors, subcontractors, or any other person
occupying or present on such premises to generate, manufacture, store,
dispose or release on, about or under such premises any Hazardous
Substances in a manner which would result in such premises not complying
with the Environmental Laws in any material respect.
The indemnification provided for herein shall not apply to any losses,
liabilities, damages, injuries, expenses or costs which: (i) arise from the
gross negligence or willful misconduct of the Administrative Agent and the
Banks, or any of them, or (ii) relate to Hazardous Substances placed or
disposed of on such premises after the Administrative Agent and the Banks,
or any of them, acquires title to such premises through foreclosure or
otherwise.
This Section 4.22(i) shall not apply to Meta Holdings, LLC and/or Meta
Management, LLC to the extent that compliance with the terms hereof would
cause Meta Holdings, LLC and/or to Meta Management, LLC to default under
any agreements executed by either or both of them in connection with the
$19,000,000.00 term credit facility identified in SCHEDULE 4.5 attached
hereto.
31
TURNAROUND CONSULTANT. On or before April 30, 2001, the Company shall engage a
"turnaround" consultant to review, prepare and analyze (as applicable) the
Company's financial condition, on a consolidated basis, including, without
limitation, the Company's going concern and break-up values, the Company's
operating, cash flow and capital budgets and the Company's management of working
capital. The consultant shall also prepare "hold/merge/liquidate"
recommendations for each business location concerning the Company operations.
All reports prepared by the consultant for the Company shall also be
simultaneously delivered by the consultant to the Administrative Agent and to
each of the Banks, and the Administrative Agent and to each of the Banks shall
have the right to discuss such reports directly with the consultant. The
consultant shall be selected and paid by the Company; provided, however, that
the Administrative Agent and each of the Banks shall have the right to approve
the consultant selected by the Company and the scope and cost of the engagement.
Attached hereto as SCHEDULE 4.23 is nonexclusive list of approved consultants.
FINANCIAL INFORMATION AND REPORTING; REGULATORY REPORTS.
FINANCIAL INFORMATION AND REPORTING. The Company shall deliver the following to
the Administrative Agent and to each of the Banks:
(a) On or before the last day of each month, internal financial statements
(for the PRECEDING month) of the Company, on a consolidated basis and
prepared in accordance with GAAP, including a balance sheet and statements
of income and surplus, and statement of cash flows (presentations to
include year-to-date results), with reporting by site and on a consolidated
basis for income statements and with reporting as either "domestic" or
"foreign" and on a consolidated basis for balance sheets, and with
period/prior-year comparisons and comparisons to budget required, such
statements to be certified by the Company's president, chief financial
officer or chief operating officer (each a "Financial Officer") as fairly
representing the Company's financial condition as of the end of such
period;
(b) On a daily basis, a statement setting forth and certifying the
calculation of the Borrowing Base and cash receipts and disbursement
reports, all of the foregoing to be certified by a Financial Officer and to
be in the form of EXHIBIT C attached hereto or in such other form and of
such content as may be satisfactory to the Administrative Agent and the
Banks;
(c) On or before the 15th day of each month, reports (for the PRECEDING
month) concerning accounts receivable and payable agings, accounts
receivable reconciliations and inventory listings, all of the foregoing to
be certified by a Financial Officer and to be in such form and of such
content as may be satisfactory to the Administrative Agent and the Banks;
(d) Within 30 days after the end of each month, a statement in
substantially the form of EXHIBIT D attached hereto signed by a Financial
Officer certifying the compliance of the Company with the terms of this
Agreement, and specifically certifying the compliance by the Company with
the terms of Sections 4.12, 4.19 and 4.21 of this Agreement;
32
(e) Not later than June 30, 2001 with respect to the Company's fiscal year
ended December 31, 2000, and not later than March 31, 2002 with respect to
the Company's fiscal year ending December 31, 2001, audited, unqualified,
consolidated financial statements of the Company (with unaudited
consolidating schedules and by site) prepared in accordance with GAAP and
certified by Deloitte & Touche, LLP or any other nationally recognized
accounting firm reasonably satisfactory to the Administrative Agent,
containing a balance sheet, statements of income and shareholder's equity,
statements of cash flows and reconciliation of retained earnings (with
reporting by site and on a consolidated basis for income statements and
with reporting as either "domestic" or "foreign" and on a consolidated
basis for balance sheets, and period/prior-year comparisons), together with
any management letters written by such accountants (notwithstanding the
foregoing dates, such management letters shall be delivered to the
Administrative Agent and the Banks within 48 hours of the Company's receipt
of the same);
(f) Promptly after the filing or submission thereof, a copy of each
financial statement and each periodic and other report sent to shareholders
of the Company, as well as a copy of each registration statement and other
filing made by the Company with the Securities and Exchange Commission;
(g) [Intentionally Deleted.]
(h) Immediately upon becoming aware of the existence of any Event of
Default or breach of any term or conditions of this Agreement, a written
notice specifying the nature and period of existence thereof and what
action the Company is taking or proposes to take with respect thereto; and
(i) At the request of the Administrative Agent, such other information as
the Administrative Agent may from time to time reasonably require.
REGULATORY REPORTS. The Company shall send to the Administrative Agent and to
each of the Banks written notice of any material filings required to be filed by
any regulatory authority having jurisdiction over the Company, such notice to be
sent within 10 days after such filing is due to be filed.
DEFAULT.
EVENTS OF DEFAULT. Each of the following shall constitute an "Event of Default"
hereunder: (a) the Company's failure to make any payment of principal, interest
or any other sum due and payable under any Note executed in connection with this
Agreement on or before the date such payment is due; (b) the Company's failure
to perform or observe any agreement, term or covenant contained in Sections 1,
2, 4 or 5 of this Agreement, or any term or covenant in any security agreement,
mortgage, lockbox agreement, cash collateral agreement or controlled
disbursement account agreement, or any Guarantor's failure to perform or observe
any covenant contained in its agreement of guaranty or in any security
agreement, mortgage, lockbox agreement, cash collateral agreement or controlled
disbursement account agreement; (c) the Company's failure to comply with any
other provision of this Agreement or any provision contained in any other
agreement in favor of the Administrative Agent or the Banks, and such failure
continues for more than 10 days after such failure shall first become known to
any officer
33
of the Company; (d) any warranty, representation or other statement by or on
behalf of the Company contained in this Agreement or in any instrument furnished
in compliance with or in reference to this Agreement is false or misleading in
any material respect, or any warranty, representation or other statement by or
on behalf of any Guarantor contained in its agreement of guaranty or in any
instrument furnished in compliance therewith or in reference thereto is false or
misleading in any material respect; (e) the Company or any Guarantor becomes
insolvent or makes an assignment for the benefit of creditors, or consents to
the appointment of a trustee, receiver or liquidator; (f) bankruptcy,
reorganization, composition, arrangement, insolvency or liquidation proceedings
are instituted by the Company or any Guarantor, or bankruptcy, reorganization,
composition, arrangement, insolvency or liquidation proceedings are instituted
against the Company or any Guarantor which are not stayed or dismissed within 60
days; (g) a final judgment or judgments for the payment of money aggregating in
excess of $100,000.00 is or are outstanding against the Company or any Guarantor
and any such judgment or judgments have not been discharged in full or stayed;
(h) the occurrence of any event which allows the acceleration of the maturity of
any indebtedness of the Company or any Guarantor to the Administrative Agent,
the Banks, or any of them, or any affiliates of the Administrative Agent or the
Banks (including, without limitation, Banc One Leasing Company), or any other
person, corporation or entity under any indenture, agreement or undertaking in
excess of $250,000.00 in the aggregate; (i) the default by, or dissolution of,
any Guarantor or any insurer or other surety for the Company with respect to any
obligation or liability to the Administrative Agent, the Banks, or any of them;
(j) the suspension, termination or adverse restriction of any license, permit or
privilege necessary or useful in the operation of the business of the Company or
any Guarantor, which has or is likely to have a Material Adverse Effect; (k) the
Company's failure to deliver to the Administrative Agent by not later than July
31, 2001, an opinion of Netherlands counsel confirming (to the satisfaction of
the Administrative Agent and its counsel) the perfection and priority of the
security interest of the Administrative Agent in the pledged shares of Metatec
International B.V.; or (l) the Administrative Agent, upon the consent of the
Required Banks, for any reason in good xxxxx xxxxx itself insecure with respect
to the repayment of the Obligations.
DEFAULT REMEDIES. If an Event of Default exists, the Administrative Agent, upon
the consent of the Required Banks, may immediately exercise any right, power or
remedy permitted to the Administrative Agent or any of the Banks by law or any
provision of this Agreement, and shall have, in particular, without limiting the
generality of the foregoing, the right to declare the entire principal and all
interest accrued on all Notes then outstanding pursuant to this Agreement to be
forthwith due and payable, without any presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by the Company.
THE ADMINISTRATIVE AGENT.
APPOINTMENT. Each Bank hereby designates and appoints Huntington to act as
Administrative Agent for such Bank under this Agreement and under any
instrument, document and agreement executed in connection herewith
(collectively, the "Loan Documents"). Each Bank hereby irrevocably authorizes
the Administrative Agent to execute the Loan Documents and any other documents
or agreements related thereto and to take such action on its behalf under the
provisions of this Agreement and any other instruments and agreements referred
to herein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Administrative
Agent by the terms hereof and thereof and such other powers as are incidental
thereto, and the Administrative Agent shall hold all collateral,
34
payments of principal and interest, fees (except for agency fees), charges and
collections, received pursuant to this Agreement, for the benefit of the Banks
as provided herein. The Administrative Agent may perform any of its duties
hereunder by or through its agents or employees. As to any matters not expressly
provided for by this Agreement, the Administrative Agent shall not be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Banks or such greater
proportion of the Banks as shall be required hereunder; provided, however, that
the Administrative Agent shall not be required to take any action which might
expose the Administrative Agent to liability or which is contrary to any of the
Loan Documents or applicable law unless the Administrative Agent is furnished
with an indemnification satisfactory to the Administrative Agent with respect
thereto. "Required Banks" means, at any time, the Banks holding more than 66.67%
of the principal amount of the Term Loan outstanding at such time and more than
66.67% of the then aggregate amount of the Loan Commitments for the Revolving
Loan in effect at such time; provided, however, that, in the event any of the
Banks shall have failed to fund its Pro Rata Share (as hereinafter defined) of
any Revolving Loan requested by the Company which the Banks are obligated to
fund under the terms hereof, and any such failure has not been cured, then for
so long as such failure continues, "Required Banks" means those Banks (excluding
any Banks whose failure to fund its respective Pro Rata Share of the Revolving
Loan has not been so cured) whose Pro Rata Shares represent more than 66.67% of
the aggregate Pro Rata Shares of such Banks; provided, further, however, that,
in the event that the maturity of the Loans has been accelerated pursuant to the
terms hereof, "Required Banks" means the Banks (without regard to such Banks'
performance of their respective obligations hereunder) whose aggregate ratable
shares (stated as a percentage) of the aggregate outstanding principal balance
of the Obligations existing or arising with respect to the Loans are greater
than 66.67%. The provisions of this Section 7 are solely for the benefit of the
Administrative Agent and the Banks, and the Company shall not have any right to
rely on or enforce any of the provisions hereof, except as expressly set forth
herein. In performing its functions and duties hereunder, the Administrative
Agent shall act solely as Administrative Agent of the Banks and does not assume
and should not be deemed to have assumed any obligation or relationship of
agency, trustee or fiduciary with or for the Company.
NATURE OF DUTIES, EXCULPATION. The Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement or in the
Loan Documents. Neither the Administrative Agent nor any of its officers,
directors, employees or agents has made any representations or warranties,
express or implied, nor shall be (a) liable to any Bank for any action taken or
omitted by them as such hereunder or in connection herewith, unless caused by
their willful misconduct or gross negligence, as determined in a final, non
appealable judgment by a court of competent jurisdiction, or (b) responsible in
any manner to any Bank for any recitals, information, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement, or in any of the Loan Documents or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Administrative Agent under or in connection with, this
Agreement or for the value, validity, execution, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, or any of the Loan Documents or
the financial condition or creditworthiness of the Company or for any failure of
the Company to perform its obligations hereunder. The Administrative Agent shall
not be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement, or any of the Loan Documents, or to inspect the properties,
books or records of the Company. The duties of the Administrative Agent shall be
mechanical and administrative in nature; the
35
Administrative Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any Bank; and nothing in this Agreement, expressed or
implied, is intended to or shall be so construed as to impose upon the
Administrative Agent any obligations in respect of this Agreement except as
expressly set forth herein.
LACK OF RELIANCE ON THE ADMINISTRATIVE AGENT AND RESIGNATION. Independently and
without reliance upon the Administrative Agent, each Bank has made and shall
continue to make (a) its own independent investigation of the financial
condition and affairs of the Company in connection with the making and the
continuance of the Loans hereunder and the taking or refraining from taking of
any action in connection herewith, and (b) its own credit analysis or appraisal
of the creditworthiness of the Company. In addition, each Bank has reviewed and
approved the form and substance of each of this Agreement and the Loan
Documents. Except with respect to the information to be provided to the
Administrative Agent in accordance with Section 8.2 of this Agreement, the
Administrative Agent shall have no duty or responsibility, either initially or
on a continuing basis, to provide any Bank with any credit or other information
with respect thereto, whether coming into its possession before the making of
the Loans or at any time or times thereafter. The Administrative Agent shall not
be required to make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions of this Agreement or the Loan
Documents, or the financial condition or creditworthiness of the Company, or the
existence of any Event of Default or any condition, event or act that, with
notice or lapse of time or both, would constitute such an Event of Default.
The Administrative Agent may resign on 30 days' prior written notice to the
Banks, and upon such resignation, the Required Banks shall designate a successor
Administrative Agent. Any such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term "Administrative
Agent" shall include such successor agent effective upon its appointment, and
the former Administrative Agent's rights, powers and duties as Administrative
Agent shall be terminated, without any other or further act or deed on the part
of such former Administrative Agent. After any Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Section 7.3 shall continue to inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement.
RIGHT TO REQUEST INSTRUCTIONS. Subject to the provisions of this Agreement, if
the Administrative Agent shall request instructions from the Banks with respect
to any act or action (including failure to act) in connection with this
Agreement, the Administrative Agent shall be entitled to refrain from such act
or taking such action unless and until the Administrative Agent shall have
received instructions from the Required Banks or such greater proportion of the
Banks as shall be required hereunder, and the Administrative Agent shall not
incur liability to any Bank or any other party by reason of so refraining.
Without limiting the foregoing, none of the Banks shall have any right of action
whatsoever against the Administrative Agent as a result of its acting or
refraining from acting hereunder in accordance with the instructions of the
Required Banks or such greater proportion of the Banks as shall be required
hereunder.
RELIANCE. The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, affidavit, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram, order
or other document or telephone message believed by it to be genuine and correct
and, with respect to all legal matters pertaining to this Agreement or the Loan
Documents and its duties hereunder, upon advice and statements of legal counsel
36
(including, without limitation, counsel to the Company), independent accountants
and other experts selected by the Administrative Agent. The Administrative Agent
may employ agents and attorneys-in-fact and shall not be liable for the default
or misconduct of any such agents or attorneys-in-fact selected by the
Administrative Agent.
RELATIONS AMONG BANKS. Each Bank agrees that except as provided herein and/or in
a certain Intercreditor Agreement executed by and among the Administrative Agent
and the Banks and dated of even date herewith, it shall not take any legal
action, nor institute any actions or proceedings, against the Company or any
other obligor hereunder or with respect to any collateral without the prior
written consent of the Administrative Agent. Without limiting the generality of
the foregoing, no Bank may accelerate or otherwise enforce its portion of the
Obligations, or terminate its commitment to make advances except in accordance
with Section 1 or pursuant to a setoff permitted under Section 7.7.
CONCERNING THE COLLATERAL AND THE LOAN DOCUMENTS.
(a) PROTECTIVE ADVANCES. The Administrative Agent may from time to time,
after the occurrence and during the continuance of an Event of Default,
make such disbursements and advances pursuant to the Loan Documents which
the Administrative Agent, in its sole discretion, deems necessary or
desirable to preserve or protect any collateral (or any portion thereof)
for the Loans given by the Company or any Guarantor (the "Collateral") or
to enhance the likelihood or maximize the amount of repayment of the Loans
("Protective Advances"). The Administrative Agent shall notify the Company
and each Bank in writing of each such Protective Advance, which notice
shall include a description of the purpose of such Protective Advance. The
Company agrees to pay to the Administrative Agent, upon demand, the
principal amount of all outstanding Protective Advances, together with
interest thereon at the Prime Rate PLUS 350 basis points from the date of
such Protective Advance until the outstanding principal balance thereof is
paid in full. If the Company fails to make payment in respect of any
Protective Advance within one Business Day after the date the Company
receives written demand therefor from the Administrative Agent, the
Administrative Agent shall promptly notify each Bank, and each Bank agrees
that it shall thereupon make available to the Administrative Agent, in U.
S. dollars in immediately available funds, the amount equal to such Bank's
Pro Rata Share of such Protective Advance. If such funds are not made
available to the Administrative Agent by such Bank within one Business Day
after the Administrative Agent's demand therefor, the Administrative Agent
shall be entitled to recover any such amount from such Bank together with
interest thereon at the Federal Funds Rate for each day during the period
commencing on the date of such demand and ending on the date such amount is
received. The failure of any Bank to make available to the Administrative
Agent its Pro Rata Share of any such Protective Advance shall neither
relieve any other Bank of its obligation hereunder to make available to the
Administrative Agent such other Bank's Pro Rata Share of such Protective
Advance on the date such payment is to be made nor increase the obligation
of any other Bank to make such payment to the Administrative Agent. All
outstanding principal of, and interest on, Protective Advances shall
constitute Obligations secured by the Collateral until paid in full by the
Company.
"Federal Funds Rate" means, for any period, a variable rate of interest per
annum equal for each day during such period to the weighted average of the
rates on overnight
37
Federal Funds transactions with members of the Federal Reserve System
arranged by Federal Funds brokers, as published for such day (or, if
such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so
published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by Huntington
from three Federal Funds brokers of recognized standing selected by
Huntington.
(b) AUTHORITY. Each Bank authorizes and directs the Administrative
Agent to enter into the Loan Documents relating to the Collateral for
the benefit of the Banks. Each Bank agrees that any action taken by the
Administrative Agent or the Required Banks (or, where required by the
express terms hereof, a different proportion of the Banks) in
accordance with the provisions hereof or of the other Loan Documents,
and the exercise by the Administrative Agent or the Required Banks (or,
where so required, such different proportion) of the powers set forth
herein or therein, together with such other powers as are reasonably
incidental thereto, shall be authorized and binding upon all of the
Banks. Without limiting the generality of the foregoing, the
Administrative Agent shall have the sole and exclusive right and
authority to (i) act as the disbursing and collecting agent for the
Banks with respect to all payments and collections arising in
connection herewith and with the Loan Documents relating to the
Collateral; (ii) execute and deliver each Loan Document relating to the
Collateral and accept delivery of each such agreement delivered by the
Company or any Guarantor; (iii) act as collateral agent for the Banks
for purposes of the perfection of all security interests and liens
created by such agreements and all other purposes stated therein;
provided, however, the Administrative Agent hereby appoints, authorizes
and directs each Bank to act as collateral sub-agent for the
Administrative Agent and the Banks for purposes of the perfection of
all security interests and liens with respect to the respective deposit
accounts of the Company and any Guarantor maintained with, and cash and
cash equivalents held by, such Bank; (iv) manage, supervise and
otherwise deal with the Collateral; (v) take such action as is
necessary or desirable to maintain the perfection and priority of the
security interests and liens created or purported to be created by the
Loan Documents; and (vi) except as may be otherwise specifically
restricted by the terms hereof or of any other Loan Document, exercise
all remedies given to the Administrative Agent or the Banks with
respect to the Collateral under the Loan Documents relating thereto,
applicable law or otherwise.
(c) RELEASE OF COLLATERAL. (i) Each of the Banks hereby directs the
Administrative Agent to release any lien held by the Administrative
Agent for the benefit of the Banks:
(A) against all of the Collateral, upon final payment in full of
the Obligations and termination hereof; and
(B) [Intentionally Deleted.]
(C) against any part of the Collateral sold or disposed, if such
sale or disposition is permitted by the Loan Documents (or
permitted pursuant to a waiver or consent of a transaction
otherwise prohibited by the Loan Documents) or, if not pursuant to
such sale or disposition, against any other part of the Collateral
if such release is consented to by the Banks whose Pro Rata Shares,
in the aggregate, are equal to or greater than 66.67%;
38
(ii) Each of the Banks hereby directs the Administrative Agent to
execute and deliver or file such termination and partial release
statements and do such other things as are necessary to release Liens
to be released pursuant to this Section 7.7(c) promptly upon the
effectiveness of any such release.
(d) CONFIRMATION BY BANKS. Without in any manner limiting the
Administrative Agent's authority to act without any specific or further
authorization or consent by the Banks (as set forth in Section 7.7(c)
above), each Bank agrees to confirm in writing, upon request by the
Company, the authority to release Collateral conferred upon the
Administrative Agent under clauses (A) and (B) of Section 7.7(c) above.
So long as no Event of Default is then continuing, upon receipt by the
Administrative Agent of any such written confirmation from the Banks of
the Administrative Agent's authority to release any particular items or
types of Collateral, and in any event upon any sale and transfer of
Collateral which is expressly permitted pursuant to the terms of this
Agreement, and upon at least five Business Days' prior written request
by the Company, the Administrative Agent shall (and is hereby
irrevocably authorized by the Banks to) execute such documents as may
be necessary to evidence the release of the liens upon such Collateral
granted to the Administrative Agent for the benefit of the Banks;
provided, however, that (i) the Administrative Agent shall not be
required to execute any such document on terms which, in the
Administrative Agent's opinion, would expose the Administrative Agent
to liability or create any obligation or entail any consequence other
than the release of such liens without recourse or warranty, and (ii)
such release shall not in any manner discharge, affect or impair the
Obligations or any liens upon (or obligations of the Company in respect
of) all interests retained by the Company, including, without
limitation, the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
(e) NO OBLIGATION. The Administrative Agent shall not have any
obligation whatsoever to any Bank or to any other person to assure that
the Collateral exists or is owned by the Company or is cared for,
protected or insured or has been encumbered or that the liens granted
to the Administrative Agent herein or pursuant to the Loan Documents
have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority, or to
exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to the Administrative Agent
in this Section 7.7 or in any of the Loan Documents, it being
understood and agreed that in respect of the Collateral, or any act,
omission or event related thereto, the Administrative Agent may act in
any manner it may deem appropriate, in its sole discretion, given the
Administrative Agent's own interests in the Collateral as one of the
Banks and that the Administrative Agent shall not have any duty or
liability whatsoever to any Bank.
SETOFF. In addition to any liens granted under the Loan Documents and any rights
now or hereafter granted under applicable law, upon the occurrence of any Event
of Default, each Bank and any affiliate of any Bank is hereby authorized by the
Company at any time or from time to time, without notice to any person (any such
notice being hereby expressly waived) to set off and to appropriate and to apply
any and all deposits (general or special, including, but not limited to,
indebtedness evidenced by certificates of deposit, whether matured or unmatured
(but not including trust accounts) and any other indebtedness at any time held
or owing by such
39
Bank or any of their affiliates to or for the credit or the account of the
Company against and on account of the Obligations of the Company to such Bank or
any affiliates, including, but not limited to, all Loans and all claims of any
nature or description arising out of or in connection herewith, irrespective of
whether (i) such Bank shall have made any demand hereunder, or (ii) the
Administrative Agent, at the request or with the consent of the Required Banks,
shall have declared the principal of and interest on the Loans and other amounts
due hereunder to be due and payable as permitted by Section 6 and even though
such Obligations may be contingent or unmatured. To the extent permitted by
applicable law, the aforesaid right of set off may be exercised by such Bank
against the Company or against any trustee in bankruptcy, custodian,
debtor-in-possession, assignee for the benefit of creditors, receiver or
execution, judgment or attachment creditor of the Company, or against anyone
else claiming through or against the Company or against any such trustee in
bankruptcy, custodian, debtor-in-possession, assignee for the benefit of
creditors, receivers, or execution, judgment or attachment creditor,
notwithstanding the fact that any such right of set off shall not have been
exercised by such Bank prior to the making, filing or issuance, or service upon
such Bank of, notice of, any such petition, assignment for the benefit of
creditors, appointment or application for the appointment of a receiver, or
issuance of execution, subpoena, order or warrant.
RATABLE SHARING. The Banks agree among themselves that, except as otherwise
expressly provided in any Loan Document, (i) with respect to all amounts
received by them which are applicable to the payment of the Obligations
(excluding the fees described in Sections 1.3(b) (Fronting Fee only), 2.14
(Agent's Fee, Exit Fee and any other fee thereunder not owing to all Banks,
only)), equitable adjustment shall be made so that, in effect, all such amounts
shall be shared among them ratably in accordance with their Pro Rata Shares,
whether received by voluntary payment, by the exercise of any right of setoff or
banker's lien, by counterclaim or cross-action or by the enforcement of any or
all of such Obligations (excluding the fees described in Sections 1.3(b)
(Fronting Fee only), 2.14 (Agent's Fee, Exit Fee and any other fee thereunder
not owing to all Banks, only)), and (ii) if any of them shall by voluntary
payment or by the exercise of any right of setoff or banker's lien, by
counterclaim or cross-action or by the enforcement of any or all of such
Obligations, receive payment of a proportion of the aggregate amount of such
Obligations held by it which is greater than the amount which such Bank is
entitled to receive hereunder, the Bank receiving such excess payment shall
purchase, without recourse or warranty, an undivided interest and participation
(which it shall be deemed to have done simultaneously upon the receipt of such
payment) in such Obligations owed to the others so that all such recoveries with
respect to such Obligations shall be applied ratably in accordance with their
Pro Rata Shares; provided, however, that if all or part of such excess payment
received by the purchasing party is thereafter recovered from it, those
purchases shall be rescinded and the purchase prices paid for such participation
shall be returned to such party to the extent necessary to adjust for such
recovery, but without interest except to the extent the purchasing party is
required to pay interest in connection with such recovery. The Company agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Section 7.9 may, to the fullest extent permitted by law, exercise all its rights
of payment (including, subject to Section 7.8, the right of setoff) with respect
to such participation as fully as if such Bank were the direct creditor of the
Company in the amount of such participation.
INDEMNIFICATION. To the extent the Administrative Agent is not reimbursed and
indemnified by the Company, each Bank will reimburse and indemnify the
Administrative Agent in proportion to its Commitment Percentage for and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or
40
nature whatsoever which at any time (including, without limitation, at any time
following the payment of the Loans) may be imposed on, incurred by or asserted
against the Administrative Agent in performing its duties hereunder, or in any
way relating to or arising out of this Agreement, the Loan Documents, or any
documents contemplated by or referred to therein or the transactions
contemplated thereby or any action taken or omitted by the Administrative Agent
in any such capacity thereunder or in connection therewith; provided that, the
Banks shall not be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's willful misconduct or
gross negligence, as determined in a final, non-appealable judgment by a court
of competent jurisdiction.
THE ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Huntington and its
affiliates may accept deposits from, make loans or otherwise extend credit to,
and generally engage in any kind of banking, trust or other business with the
Company, and receive payment on such loans or extensions of credit or otherwise
act with respect thereto fully and without accountability to the Banks in the
same manner as if Huntington or any of its affiliates were not acting as the
Administrative Agent pursuant hereto. None of the other Banks shall have an
interest in any property taken as collateral or security for any of such other
loans or extensions of credit made by Huntington or any of its affiliates, or in
any property in Huntington's possession or control for any of such other loans
or extensions of credit, or in any deposit held or other indebtedness owing by
Huntington or its affiliates, which may be or become collateral for or otherwise
available for payment of the Loans by reason of a general description of secured
obligations contained in any security agreement or other instrument held by
Huntington, or its affiliates, or by reason of the right of set-off,
counterclaim or otherwise, except that if such property, deposit or indebtedness
or the proceeds thereof shall be applied in reduction of the Loans, each Bank
shall be entitled to its pro rata percentage of such application. Huntington
shall have no obligation to make any claim against, or assert any lien upon or
right of set off against, any such property held by Huntington.
AMENDMENT AND MODIFICATIONS. The Administrative Agent, upon the consent of the
Required Banks and subject to the provisions of this Section 7.12, may from time
to time enter into written amendments or supplemental agreements to this
Agreement, or the Loan Documents executed by the Company, for the purpose of
adding or deleting any provisions, or otherwise changing, varying or waiving in
any manner the rights of the Banks, the Administrative Agent or the Company
thereunder or the conditions, provisions or terms thereof, or waiving any Event
of Default thereunder, but only to the extent specified in such written
agreements; provided, however, that no such amendment or supplemental agreement
without the consent of all the Banks shall: (a) extend the maturity of any of
the Loans, (b) increase the principal amount of any of the Loans, (c) decrease
the rate or rates of interest thereon or any fee payable by the Company to the
Administrative Agent or the Banks pursuant to this Agreement (except pursuant to
the terms of this Agreement), (d) alter, amend or modify this Section 7.12, (e)
release any Guarantor (except pursuant to the terms of the applicable guaranty
agreements, or release all or substantially all of the Collateral (except
pursuant to the terms of any security agreement or mortgage), or (f) alter the
meaning of the term Required Banks. The rights and duties of the Administrative
Agent may be changed upon the consent of the Required Banks, but only if the
Administrative Agent consents to such change. Any such amendment or supplemental
agreement shall be binding upon the Company, the Banks and the Administrative
Agent, and any of them. No waiver of a specific Event of
41
Default shall extend to any subsequent Event of Default (whether or not the
subsequent Event of Default is the same as the Event of Default which was
waived), or impair any right consequent thereon.
COMMITMENT PERCENTAGE. "Commitment Percentage" means 60% of the Loans in respect
of Huntington, and 40% of the Loans in respect of Bank One, NA.
PRO RATA TREATMENT AND PAYMENTS. Each borrowing or extension of credit hereunder
and each payment (including each prepayment) by the Company, of principal,
interest, and fees (excluding the fees described in Sections 1.3(b) (Fronting
Fee only), 2.14 (Agent's Fee, Exit Fee and any other fee thereunder not owing to
all Banks, only)) provided for in this Agreement shall be made or applied Pro
Rata pursuant to the Commitment Percentage of each of the Banks.
FUNDING OF ADVANCES. On or before the closing of the Loans or any later date
when funds are to be disbursed to the Company pursuant to the Loans, each Bank
shall deposit with the Administrative Agent its Pro Rata Share, in accordance
with its Commitment Percentage (the "Pro Rata Share"), of the amount of the
disbursement, in funds available for immediate use, no later than 1:00 p.m.
Columbus, Ohio time on the same day on which the advance is made, provided,
however, that the Administrative Agent shall use its best efforts to give each
Bank advance notice of such funding request no later than 4:00 p.m., Columbus,
Ohio time (i) on the Business Day immediately preceding the day of the advance
with respect to advances under the Revolving Loan and, (ii) three Business Days
immediately preceding the day of the advance with respect to other types of
advances. In the event any Bank fails or refuses to deposit with the
Administrative Agent the amounts required herein, then the Administrative Agent,
without limitation, shall be entitled to pursue all remedies and rights
permitted by this Agreement, law, or equity and further shall be entitled to,
but not be required to, do all or any of the following: (a) fund such Bank's Pro
Rata Share of the disbursement, (b) accrue interest on any unpaid amount of such
Bank at the Federal Funds Rate, (c) withhold from such Bank all interest,
principal, fees and late charges attributable to such Bank's Pro Rata Share
thereof through the date such Bank funds its Pro Rata Share thereof and pays the
interest due thereon, PLUS any additional cost or expense, including, without
limitation, reasonable attorneys' fees, incurred by the Administrative Agent as
a result of such Bank's failure to pay, and (d) offset against such Bank's Pro
Rata Share all sums received by the Administrative Agent in connection with the
Loans until reimbursed by the Bank that failed or refused to make such payment.
SUCCESSORS AND ASSIGNS.
(a) GENERAL TERMS. The terms and provisions of this Agreement and the
Loan Documents shall be binding upon and inure to the benefit of the
Company, the Banks, and the Administrative Agent and their respective
successors and assigns, except that (i) the Company shall not have the
right to assign its rights or obligations under this Agreement and the
Loan Documents, and (ii) any assignment by any Bank must be made in
compliance with Section 7.16(c). Notwithstanding clause (ii) of the
preceding sentence, any Bank may at any time, without the consent of
the Company or the Administrative Agent, assign all or any portion of
its rights under this Agreement and any Note to a Federal Reserve Bank;
provided, however, that no such assignment to a Federal Reserve Bank
shall release the transferor Bank from its obligations hereunder. The
Administrative Agent may treat the entity which made any Loan or which
holds any Note as the owner thereof for all purposes hereof unless and
until such entity complies with Section 7.16(c) in the case of an
assignment thereof or, in the case of any other
42
transfer to which the Administrative Agent has consented or which has
occurred by operation of law, a written notice of the transfer is filed
with the Administrative Agent. Any assignee or transferee of the rights
to any Loan or any Note agrees by acceptance of such transfer or
assignment to be bound by all the terms and provisions of this
Agreement and the Loan Documents. Any request, authority or consent of
any entity, which at the time of making such request or giving such
authority or consent is the owner of the rights to any Loan (whether or
not a Note has been issued in evidence thereof), shall be conclusive
and binding on any subsequent holder, transferee or assignee of the
rights to such Loan.
(b) PARTICIPATIONS.
(1) PERMITTED PARTICIPANTS; EFFECT. Any Bank may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities (each a
"Participant") participating interests in any Loan owing to such Bank,
any Note held by such Bank, any Commitment Percentage of such Bank, any
Pro Rata Share of such Bank or any other interest of such Bank under
this Agreement or the Loan Documents; provided, however, that such Bank
shall at all times retain for its own account an interest of not less
than $1,000,000.00, exclusive of interest, fees and other charges; and,
provided further, however, that so long as Huntington is the
Administrative Agent, Huntington shall retain for its own account an
interest of not less than 25% of its original Loan Commitment,
exclusive of interest, fees and other charges. In the event of any such
sale by a Bank of participating interests to a Participant, such Bank's
obligations under this Agreement and the Loan Documents shall remain
unchanged, such Bank shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Bank shall
remain the owner of its Loan and the holder of any Note issued to it in
evidence thereof for all purposes under this Agreement and the Loan
Documents, all amounts payable by the Company under this Agreement
shall be determined as if such Bank had not sold such participating
interests, and the Company and the Administrative Agent shall continue
to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement and the Loan
Documents.
(2) VOTING RIGHTS. Each Bank shall retain the sole right to
approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of this Agreement and the Loan
Documents other than any amendment, modification or waiver with respect
to any Loan or Commitment Percentage in which such Participant has an
interest which forgives principal, interest or fees or reduces the
interest rate or fees payable with respect to any such Loan or
Commitment Percentage, extends the Termination Date, postpones any date
fixed for any regularly-scheduled payment of principal of, or interest
or fees on, any such Loan or Commitment Percentage, or releases any
Guarantor.
(3) BENEFIT OF SETOFF. The Company agrees that each
Participant shall be deemed to have the right of setoff provided in
Section 7.8 in respect of its participating interest in amounts owing
under this Agreement and the Loan Documents to the same extent as if
the amount of its participating interest were owing directly to such
Participant as a Bank under this Agreement and the Loan Documents;
provided, however, that each Bank shall retain the right of setoff
provided in Section 7.8 with
43
respect to the amount of participating interests sold to each
Participant. The Banks agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in Section 7.8,
agrees to share with each Bank, any amount received pursuant to the
exercise of its right of setoff, such amounts to be shared in
accordance with Section 7.9 as if each Participant were a Bank.
(c) ASSIGNMENTS.
(1) PERMITTED ASSIGNMENTS. Any Bank may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities (each a "Purchaser")
all or any part of its rights and obligations under this Agreement and
the Loan Documents; provided, however, that each assignment shall be in
an amount of not less than $5,000,000.00; and, provided further,
however, that so long as Huntington is the Administrative Agent,
Huntington shall retain for its own account an interest of not less
than 25% of its original Loan Commitment, exclusive of interest, fees
and other charges. Such assignment shall be substantially in such form
as may be agreed to by the parties thereto. The consent of the Company
and the Administrative Agent shall be required prior to an assignment
becoming effective with respect to a Purchaser which is not a Bank or
an affiliate thereof; provided, however, that if an Event of Default
has occurred and is continuing, the consent of the Company shall not be
required. Such consent shall not be unreasonably withheld or delayed.
(2) EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent of a notice of assignment setting forth such
information as the Administrative Agent may reasonably require to
accommodate such assignment (a "Notice of Assignment"), together with
any consents required by Section 7.16(c)(1), and (ii) payment of a
$3,000.00 fee to the Administrative Agent for processing such
assignment, such assignment shall become effective on the effective
date specified in such Notice of Assignment. On and after the effective
date of such assignment, such Purchaser shall for all purposes be a
Bank party to this Agreement and any other Loan Document executed by
the Banks and shall have all the rights and obligations of a Bank under
this Agreement and the Loan Documents, to the same extent as if it were
an original party hereto, and no further consent or action by the
Company, the Banks or the Administrative Agent shall be required to
release the transferor Bank with respect to the percentage of the
Commitment Percentage and Loans assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
7.16(c), the transferor Bank, the Administrative Agent and the Company
shall make appropriate arrangements so that new Notes or, as
appropriate, replacement Notes are issued to such transferor Bank and
new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their
respective Commitment Percentages, as adjusted pursuant to such
assignment.
(d) DISSEMINATION OF INFORMATION. The Company authorizes each Bank to
disclose to any Participant or Purchaser or any other entity acquiring an
interest in this Agreement and the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Bank's possession concerning the creditworthiness of the Company, including,
without limitation, any information provided by the Company as required under
this Agreement; provided that each Transferee and prospective Transferee agrees
to be bound by Section 8.3 of this Agreement.
44
MISCELLANEOUS.
NOTICES. All communications under this Agreement or under the Notes,
instruments, agreements or other documents executed pursuant hereto shall be in
writing and shall be mailed by certified mail, postage prepaid, by telecopier,
or by commercial overnight courier:
(a) If to the Administrative Agent or to any of the Banks, at the following
address, or at such other address as may have been furnished in writing to the
Company by the Administrative Agent:
The Huntington National Bank
00 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn.: Xxxx X. Xxxxxx, Vice President
Fax: 000-000-0000
Confirm: 000-000-0000
With a copy to:
Bank One, NA
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attn.: Xxxxxxx X. Xxxxxx, Vice President
Fax: 000-000-0000
Confirm: 000-000-0000
(b) If to the Company, at the following address, or at such other address as may
have been furnished in writing to the Administrative Agent by the Company:
Metatec International, Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxx, Senior Vice President, Finance
Fax: 000-000-0000
Confirm: 000-000-0000
With a copy of any notice given by the Company pursuant to Section 5.1(h) to:
45
Xxxxx & Xxxxxxxxx LLP
00 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxx 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
Confirm: 000-000-0000
Any notice so addressed and mailed by registered or certified mail
shall be deemed to be given on the third Business Day next following the
postmark dated which it bears; or by overnight courier shall be deemed to be
given when delivered; and any notice sent by telecopier shall be deemed to be
given when confirmed.
ACCESS TO ACCOUNTANTS. The Company hereby authorizes its certified public
accountants to provide to the Administrative Agent, for the benefit of the
Banks, any and all information that the Administrative Agent reasonably requests
from time to time with regard to the Company, and to discuss with the
Administrative Agent from time to time any and all matters relating to the
Company; provided, however, that if the Administrative Agent requests financial
or material information in writing or verbally from such accountants, such
accountants shall contemporaneously provide a copy of such correspondence to a
Financial Officer or shall inform a Financial Officer of the Company. In
furtherance of the foregoing, the Company hereby waives any privilege or claim
of confidentiality to the extent such might otherwise prevent the Company's
accountants from providing such information to the Administrative Agent or
discussing such matters with the Administrative Agent. Notwithstanding the
foregoing, to the extent that any such request by the Administrative Agent
results in a fee for services charged to the Company, the Company does not so
authorize such request without prior notification.
CONFIDENTIALITY. The Administrative Agent and each Bank shall hold all
non-public information identified as such by the Company in accordance with the
Administrative Agent's or such Bank's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, but may make disclosures reasonably required by a Bank in
connection with the contemplated co-lending arrangement or participation, as the
case may be, or as required by any governmental authority or any representative
thereof, or as required pursuant to any legal process, or on a confidential
basis to its accountants, lawyers and other advisors.
REPRODUCTION OF DOCUMENTS. This Agreement and all documents relating hereto,
including, without limitation, (a) consents, waivers and modifications which may
hereafter be executed, (b) documents received by the Administrative Agent or any
of the Banks at the closing or otherwise, and (c) financial statements,
certificates and other information previously or hereafter furnished to the
Administrative Agent or any of the Banks, may be reproduced by the
Administrative Agent or any of the Banks by any photographic, photostatic,
microfilm, micro-card, miniature photographic or other similar process and the
Administrative Agent and the Banks, or any of them, may destroy any original
document so reproduced. The Company agrees and stipulates that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by the Administrative
Agent or any of the Banks in
46
the regular course of business) and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
SURVIVAL, SUCCESSORS AND ASSIGNS. All warranties, representations, and covenants
made by the Company herein or on any certificate or other instrument delivered
by it or on its behalf under this Agreement shall be considered to have been
relied upon by the Administrative Agent and the Banks, and each of them, and
shall survive the closing of the Loans regardless of any investigation made by
the Administrative Agent or the Banks, or any of them, on their behalf. All
statements in any such certificate or other instrument shall constitute
warranties and representations by the Company. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
AMENDMENT AND WAIVER, DUPLICATE ORIGINALS. All references to this Agreement
shall also include all amendments, extensions, renewals, modifications, and
substitutions thereto and thereof. Subject to the provisions of Section 7.12
herein, this Agreement may be amended, and the observance of any term of this
Agreement may be waived only in writing executed by the Company and the
Administrative Agent; provided, however that nothing herein shall change the
Administrative Agent's sole discretion (as set forth elsewhere in this
Agreement) to make advances, determinations, decisions or to take or refrain
from taking other actions. No delay or failure or other course of conduct by the
Administrative Agent or the Banks, or any of them, in the exercise of any power
or right shall operate as a waiver thereof, nor shall any single or partial
exercise of the same preclude any other or further exercise thereof, or the
exercise of any other power or right. Two or more duplicate originals of this
Agreement may be signed by the parties, each of which shall be an original but
all of which together shall constitute one and the same instrument.
UNIFORM COMMERCIAL CODE AND GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. Unless the
context otherwise requires, or terms are defined in this Agreement, all terms
used herein which are defined in the Uniform Commercial Code as enacted in Ohio
shall have the meaning stated therein, and all accounting terms shall be
determined in accordance with GAAP. The fiscal year of the Company begins on
January 1, and ends on December 31, and if the Company elects to change its
fiscal year, the Company shall provide written notice of such change to the
Administrative Agent within 30 days of such election.
47
ENFORCEABILITY AND GOVERNING LAW. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction, as to such jurisdiction, shall
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. No delay or omission on
the part of the Administrative Agent or the Banks, or any of them, in exercising
any right shall operate as a waiver of such right or any other right. All of the
rights and remedies of the Administrative Agent and the Banks, and each of them,
whether evidenced hereby or by any other agreement or instrument, shall be
cumulative and may be exercised singularly or concurrently. This Agreement shall
be governed by and construed in accordance with the laws of the State of Ohio.
The Company agrees that any legal suit, action or proceeding arising out of or
relating to this Agreement may be instituted in a state or federal court of
appropriate subject matter jurisdiction in the State of Ohio; waives any
objection which it may have now or hereafter to the venue of any suit, action or
proceeding; and irrevocably submits to the jurisdiction of any such court in any
such suit, action or proceeding.
WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION (1) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (2) IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS
RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER
ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY
HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER
OF THEIR RIGHT TO TRIAL BY JURY.
ADVERTISING. Without the prior written consent of the Company, which consent
shall not be unreasonably withheld, the Administrative Agent and the Banks shall
not advertise or otherwise disclose for marketing purposes the extent and nature
of the credit extended or to be extended and other services provided to the
Company by the Administrative Agent and the Banks in connection with or relating
in any way to the Loans.
[Intentionally Deleted.]
NO CONSEQUENTIAL DAMAGES; RELEASE. No claim may be made by the Company, or any
of its officers, directors, or agents against the Administrative Agent and the
Banks, or any of them, or any of their respective affiliates, directors,
officers, employees, attorneys or agents for any special, indirect, punitive, or
consequential damages in respect of any breach or wrongful conduct (whether the
claim there for is based in contract, tort or duty imposed by law) in connection
with, arising out of or in any way related to the transactions contemplated and
relationship established by this Agreement, or any act, omission or event
occurring in connection therewith, and the Company hereby waives, releases and
agrees not to xxx upon any
48
such claim for any such damages, whether or not accrued and whether or not known
or suspected to exist in its favor.
The Company, for itself and for its affiliates and subsidiaries, and
for their respective directors, officers, employees, agents, representatives and
attorneys, hereby releases, acquits and forever discharges the Administrative
Agent and the Banks, and each of them, and their respective past and present
stockholders, affiliates, subsidiaries, directors, officers, employees, agents,
representatives and attorneys, from any and all claims, demands, actions, causes
of action, liabilities, obligations, losses, damages, penalties, judgments,
suits, debts, liens, costs, expenses and disbursements of any kind or nature
whatsoever (including, without limitation, attorneys' fees and related
disbursements), known or unknown, fixed or contingent, which the Company may
have or claim to have now or which may hereafter arise out of or connected with
any act or omission of the Administrative Agent and the Banks, or any of them,
existing or occurring prior to the date of this Agreement or any instrument
executed prior to the date of this Agreement.
INDEMNITY. The Company shall indemnify the Administrative Agent, the Banks, and
each of them, from and against any and all claims, demands, actions, causes of
action, liabilities, obligations, losses, damages, penalties, judgments, suits,
debts, liens, costs, expenses and disbursements of any kind or nature whatsoever
(including, without limitation, attorneys' fees and related disbursements) which
may be imposed on, incurred by, or asserted against the Administrative Agent,
the Banks, or any of them, in any litigation, proceeding or investigation
instituted or conducted by any governmental agency or instrumentality or any
third person or entity with respect to any aspect of, or any transaction
contemplated by, or referred to in, or any matter related to, this Agreement,
whether or not the Administrative Agent or any of the Banks is a party thereto,
except to the extent that any of the foregoing arises out of the gross
negligence or willful misconduct of the party being indemnified as determined in
a final, non-appealable judgment by a court of competent jurisdiction.
CONDITIONS PRECEDENT TO SUBSEQUENT EXTENSIONS OF CREDIT. The obligation of Banks
to make any disbursement, advance or other extension of credit subsequent to the
initial disbursement, advance, or extension of credit under the Loans, of any
portion of any of the Loans is subject to all the conditions and requirements of
this Agreement and delivery of the following required documents, or other
action, all of which are conditions precedent:
(a) COMPLIANCE. The Company shall have complied and shall then be
in compliance with all the terms, covenants and conditions of the
Agreement which are binding upon it.
(b) CONTINUATION OF REPRESENTATIONS AND WARRANTIES: The
representations and warranties herein contained shall be true, with the
same effect as though such representations and warranties had been made
at the time of the making of such advance or extension of credit, and
any request for an advance or extension of credit hereunder shall be
deemed a representation and warranty of same.
TERMINATION.
This Agreement, which shall inure to the benefit of and shall be
binding upon the respective successors and assigns of the Company, the
Administrative Agent and each Bank, shall become effective on the date hereof
and shall continue in full force and effect until the
49
Termination Date, unless sooner terminated under the terms of this Agreement.
Subject to the provisions hereof, the Company may terminate this Agreement at
any time upon five Business Days' prior written notice and upon payment in full
of all Obligations existing hereunder.
The termination of this Agreement shall not affect the Company's or the
Administrative Agent's or any Bank's rights, or any of the Obligations arising
prior to the effective date of such termination, and the provisions hereof shall
continue to be fully operative until all transactions entered into, rights or
interests created or Obligations have been fully disposed of, concluded or
liquidated. The rights granted to the Administrative Agent and the Banks
hereunder shall continue in full force and effect, notwithstanding the
termination of this Agreement or the Loan Commitments or the fact that the Loans
may from time to time be temporarily in a zero or credit position, until all of
the Obligations of the Company have been paid in full after the termination of
this Agreement or the Company has furnished the Administrative Agent and the
Banks with an indemnification satisfactory to the Administrative Agent with
respect thereto.
All representations and warranties made herein and all obligations of
the Company in respect of taxes, indemnification and expense reimbursement shall
survive the execution and delivery hereof, the making and repayment of the
Loans, and the termination hereof, and shall not be limited in any way by the
passage of time or occurrence of any event and shall expressly cover time
periods when the Administrative Agent or any of the Banks may have come into
possession or control of any of the Company's property; provided, however, all
representations and warranties of the Company shall terminate when all
Obligations (other than indemnities not then due) have been paid in full and
this Agreement has been terminated.
INDEX OF DEFINITIONS.
"Account Debtor" is defined in Section 1.3.
"Administrative Agent" is defined in the preamble.
"Affiliate" is defined in Section 4.11.
"Agent's Fee" is defined in Section 2.14.
"Agreement" is defined in the preamble.
"Bank" and "Banks" are defined in the preamble.
"Benefit Plan" is defined in Section 3.10.
"Borrowing Base" is defined in Section 1.3.
"Business Day" is defined in Section 1.3.
"Collateral" is defined in Section 7.7.
"Commitment Fee" is defined in Section 2.14.
"Commitment Percentage" is defined in Section 7.13.
"Company" is defined in the preamble.
"Contra" is defined in Section 1.3.
"Customary Permitted Liens" is defined in Section 4.4.
"Dublin Office and Warehouse Complex in Section 4.3.
"EBITDA" is defined in Section 4.21.
"Eligible Domestic Accounts" is defined in Section 1.3.
"Eligible Domestic Inventory" is defined in Section 1.3.
"Eligible Domestic Machinery and Equipment" is defined in Section 1.3.
"Environmental Laws" is defined in Section 3.13.
"ERISA" is defined in Section 3.10.
"ERISA Affiliate" is defined in Section 3.10.
50
"Event of Default" is defined in Section 6.1.
"Exit Fee" is defined in Section 2.14.
"Federal Funds Rate" is defined in Section 7.7.
"Financial Officer" is defined in Section 5.1.
"Fronting Fee" is defined in Section 1.3.
"GAAP" is defined in Section 3.5.
"Guarantor" and "Guarantors" are defined in Section 2.17.
"Hazardous Substances" is defined in Section 3.13.
"Huntington" is defined in the preamble.
"Interest Payment Date" is defined in Section 2.6.
"Internal Revenue Code" is defined in Section 3.10.
"IRS" is defined in Section 3.10.
"Loan Agreement" is defined in the preamble.
"Loan Commitment" is defined in Section 1.2.
"Loan Documents" is defined in Section 7.1.
"Loans" is defined in Section 1.1.
"Material Adverse Effect" is defined in Section 3.1.
"Multiemployer Plan" is defined in Section 3.10.
"Notes" is defined in Section 1.4.
"Notice of Assignment" is defined in Section 7.16.
"Obligations" is defined in Section 2.16.
"Participant" is defined in Section 7.16.
"PBGC" is defined in Section 3.10.
"Plan" is defined in Section 3.10.
"Premises" is defined in Section 3.13.
"Prime Rate" is defined in Section 2.1.
"Pro Rata Share" is defined in Section 7.15.
"Protective Advances" is defined in Section 7.7.
"Purchaser" is defined in Section 7.16.
"Reduced Earnings" is defined in Section 2.7.
"Regulatory Requirement" is defined in Section 2.7.
"Required Banks" is defined in Section 7.1.
"Revolving Loan" is defined in Section 1.1.
"Revolving Note" is defined in Section 1.3.
"Sub-Facility" is defined in Section 1.3.
"Sub-Facility Letters of Credit" is defined in Section 1.3.
"Subsidiary" is defined in Section 4.22.
"Tangible Net Worth" is defined in Section 4.12.
"Term Loan" is defined in Section 1.1.
"Term Note" is defined in Section 1.4.
"Termination Date" is defined in Section 1.3.
"Termination Event" is defined in Section 3.10.
"Transferee" is defined in Section 7.16.
51
Each of the parties has signed this Agreement as of the date set forth
in the preamble.
COMPANY:
METATEC INTERNATIONAL, INC.
an Ohio corporation
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------
Its: Senior Vice President of Finance
--------------------------------------
AGENT:
THE HUNTINGTON NATIONAL BANK,
a national banking association,
as Administrative Agent
By: /s/ Xxxx Xxxxxx
---------------------------------------
Its : Vice President
--------------------------------------
BANK:
THE HUNTINGTON NATIONAL BANK,
a national banking association
By: /s/ Xxxx Xxxxxx
--------------------------------------
Its: Vice President
-------------------------------------
BANK:
BANK ONE, NA,
a national banking association
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------
Its: Vice President
-------------------------------------
