Exhibit 10.11
LOAN AGREEMENT
This Loan Agreement (this "Loan Agreement") is made and entered into as of
July 12, 1996, by and between LaSalle National Bank, a national banking
association, with its principal place of business at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 ("LaSalle"), and Binks Manufacturing Company, a Delaware
corporation, with its principal place of business at 0000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxx 00000 ("Binks").
W I T N E S S E T H:
WHEREAS, Binks desires LaSalle to provide certain extensions of credit,
loans or other financial accommodations (the "Financial Accommodations") to
Binks in a maximum aggregate principal amount not to exceed Five Million and
no/100 dollars ($5,000,000.00); and
WHEREAS, LaSalle shall provide the Financial Accommodations to Binks, but
solely on the terms and subject to the conditions set forth in this Loan
Agreement and the "Revolving Note" (hereinafter defined).
NOW, THEREFORE, in consideration of the Financial Accommodations, the
mutual promises and understandings of LaSalle and Binks set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which
consideration is hereby acknowledged, LaSalle and Binks hereby agree as set
forth in this Loan Agreement.
1. DEFINITIONS AND TERMS
1.1 The following words, terms or phrases shall have the following
meanings:
"ADVANCE": shall mean any advance made or to be made by LaSalle to Binks as
provided in SECTION 3.1(B) hereof.
"AFFILIATE": shall mean any "Person" (hereinafter defined) that directly or
indirectly, through one or more intermediaries, owns, controls or is controlled
by, or is under common control with, Binks. A Person shall be presumed to
control Binks if such Person is the direct or indirect legal or beneficial owner
of more than ten percent (10%) of the securities having ordinary voting power
with respect to the election of directors of Binks.
"ANB LOAN DOCUMENTS": shall mean that certain Letter Agreement dated
January 16, 1996, by and between American National Bank and Trust Company of
Chicago ("ANB") and Binks (the "ANB Agreement"), the "Note" (as defined in the
ANB Agreement), the documents, instruments and agreements executed in connection
therewith and any modifications, amendments, renewals, substitutions or
replacements therefor.
"ANB OBLIGATIONS": shall mean the payment and performance obligations of
Binks under the ANB Loan Documents.
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"BANKERS ACCEPTANCE RATE": shall mean the daily rate equivalent quoted by
LaSalle to Binks from time to time for the applicable "Bankers Acceptance
Interest Period" (hereinafter defined), which may not be the most favorable or
lowest rate of interest offered or charged by LaSalle to its commercial or other
borrowers. Binks shall give LaSalle written notice or telecopy notice of each
proposed Advance at the Bankers Acceptance Rate on or before the date of each
Advance at the Bankers Acceptance Rate. Such notice shall include (A) the date
and amount of the requested Advance at the Bankers Acceptance Rate; and (B) the
duration of the Bankers Acceptance Interest Period applicable to such Advance.
Binks may not prepay any Advance bearing interest at the Bankers Acceptance
Rate, without penalty. Each such notice shall be accompanied by a Request for
Advance at the Bankers Acceptance Rate in the form of Exhibit "A" to this Loan
Agreement. "Bankers Acceptance Interest Period" shall mean the period
commencing the day of each Advance at the Bankers Acceptance Rate and, as set
forth in Binks' notice to LaSalle, continuing for either a thirty (30), sixty
(60), ninety (90), one hundred twenty (120) or one hundred eighty (180) day
period. Binks may not select a Bankers Acceptance Interest Period which expires
after July 12, 1997. If, at the end of the Bankers Acceptance Interest Period,
Binks (i) fails to notify LaSalle in the manner provided for a new Advance that
Binks desires to continue the Advance and the rate option and interest period
applicable thereto or (ii) repay the Advance in full, then such Advance bearing
interest at the Bankers Acceptance Rate shall automatically be converted to an
Advance bearing interest at the "Prime Rate" (hereinafter defined). If, for any
reason, LaSalle is unable to make Advances at the Bankers Acceptance Rate,
whether due to illegality, LaSalle's inability to ascertain a rate or such
pricing does not adequately reflect LaSalle's cost of funds, then Binks may only
select interest at the "LIBOR Rate" (hereinafter defined) or the Prime Rate.
Binks may not prepay any Advance bearing interest at the LIBOR Rate unless
contemporaneously therewith, Binks pays the amounts described in SECTION 2.9
hereof.
"BINKS' LIABILITIES": shall mean any and all obligations, liabilities,
indebtedness, fees, costs and expenses, now or hereafter owed or owing by Binks
to LaSalle hereunder or under the Other Agreements, including, but not limited
to, all principal, interest, debts, claims and indebtedness of any and every
kind and nature, howsoever created, arising or evidenced, whether primary or
secondary, direct or indirect, absolute or contingent, insured or uninsured,
liquidated or unliquidated, or otherwise, and whether arising or existing under
written or oral agreement or by operation of law, together with all costs, fees
and expenses of LaSalle, including, but not limited to, attorneys' and
paralegals' fees or charges relating to the preparation of this Loan Agreement
and the Other Agreements and the enforcement of LaSalle's rights and remedies
pursuant to this Loan Agreement, the Other Agreements, at law, in equity or
otherwise. Any indebtedness, liability or obligation of any sort whatsoever,
however arising, whether present or future, fixed or contingent, secured or
unsecured, due or to become due, paid or incurred, arising or incurred in
connection with any deferred payment obligations or under any Foreign Exchange
Contract (herein part of the "Binks' Liabilities" heretofore defined) shall be
incurred solely as an accommodation to Binks and for Binks' account. "Binks'
Liabilities" shall include, without being limited to: all amounts due or which
may become due under any Foreign Exchange Contracts, any other bank charges,
fees and commissions, duties and taxes, costs of insurance, and all such
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other charges and expenses which may pertain to deferred payment obligations or
to any Foreign Exchange Contract
"BUSINESS DAY": shall mean any day other than a day on which banks located
in Chicago, Illinois are authorized or required to be closed.
"CODE": shall mean the Internal Revenue Code of 1986, as amended, and any
successor or replacement statute, as in effect from time to time.
"COMERICA LOAN DOCUMENTS": shall mean that certain Letter Agreement dated
as of November 27, 1992, by and between Binks and Comerica Bank ("Comerica"),
the documents, instruments and agreements executed in connection therewith and
any modifications, amendments, renewals, substitutions or replacements therefor.
"COMERICA OBLIGATIONS": shall mean the payment and performance obligations
of Binks under the Comerica Loan Documents.
"CONSOLIDATED" or "CONSOLIDATED": shall mean, when used with reference to
any financial term in this Loan Agreement, the aggregate for Binks and its
Subsidiaries whose account would be consolidated with those of Binks in Binks'
consolidated financial statements at such date of the amounts signified by such
term for all such Persons determined on a consolidated basis in accordance with
GAAP.
"COVENANTS": shall mean all of the covenants, duties, obligations and
agreements of Binks to and with LaSalle, whether pursuant to this Loan
Agreement, the "Other Agreements" (hereinafter defined) or otherwise.
"DEFAULT RATE" shall mean, with respect to Binks' Liabilities, the daily
rate equivalent of two percent (2%) per annum in excess of the interest rate
which would otherwise be applicable with respect thereto.
"ENVIRONMENTAL LAWS" shall mean the Federal Clean Air Act (42 U.S.C.
Sections 7501 ET SEQ.), the Federal Water Pollution Control Act (33 U.S.C.
Sections 1251 ET SEQ.), the Resource Conservation and Recovery Act of 1976 (42
U.S.C. Sections 6901 ET SEQ.) the Comprehensive Environmental Response,
Compensation and Liability Act (42 U.S.C Sections 9601 ET SEQ.), any so-called
"Superfund" or "Superlien" law, the Toxic Substances Control Act (15 U.S.C.
Sections 2601), any Occupational Safety and Health Law (29 U.S.C. Sections 655),
and any other federal, state or local statute, law, ordinance, code, rule,
regulation, permit, license, order or decree regulating, relating to, or
imposing liability or standards of conduct concerning any Hazardous Materials,
or any other hazardous, toxic, special or dangerous waste, substance or
constituent, whether solid, liquid or gas, or employee health and/or safety, as
from time to time hereafter in effect.
"ERISA": shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations issued thereunder.
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"ERISA AFFILIATE": shall mean, with respect to any Person or any trade or
business (whether or not incorporated) which, would be treated as a single
employer under Section 414(b) or (c) of the Code.
"ERISA DEFAULT": shall mean the occurrence of a Reportable Event that
results in material liability of Binks or any of its Subsidiaries or their ERISA
Affiliates to the PBGC or to any Plan and such Reportable Event is not corrected
within thirty (30) days after the occurrence thereof; or the occurrence of any
Reportable Event which could constitute grounds for termination of any Plan of
Binks or any of its Subsidiaries or their ERISA Affiliates by the PBGC or for
the appointment by the appropriate United States District Court of a trustee to
administer any such Plan and such Reportable Event is not corrected within
thirty (30) days after the occurrence thereof; or Binks or any of its
Subsidiaries or any of their ERISA Affiliates shall fail to pay when due any
material liability to the PBGC or to a Plan; or the PBGC shall have instituted
proceedings to terminate, or to cause a trustee to be appointed to administer,
any Plan of Binks or any of its Subsidiaries or their ERISA Affiliates; or any
Person engages in a Prohibited Transaction with respect to any Plan which
results in material liability of Binks or any of its Subsidiaries, any of their
ERISA Affiliates, any Plan of Binks or any of its Subsidiaries or their ERISA
Affiliates or any fiduciary of any such Plan; or failure by Binks or any of its
Subsidiaries or any of their ERISA Affiliates to make a required installment or
other payment to any Plan within the meaning of Section 302(f) of ERISA or
Section 412(n) of the Code that results in material liability of Binks or any of
its Subsidiaries or any of their ERISA Affiliates to the PBGC or any Plan; or
the withdrawal of Binks or any of its Subsidiaries or any of their ERISA
Affiliates from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA.
"EQUITABLE NOTES": shall mean those certain 7.14% Senior Notes due 2008
issued by Binks and made payable to The Equitable Life Assurance Society of the
United States and Equitable Variable Life Insurance Company in the original
aggregate principal amount of Fifteen Million and no/100 Dollars
($15,000,000.00) and any subsequent issuances of any additional series of such
7.14% Senior Notes.
"FINANCIALS": shall mean all year-end financial statements, projections,
interim financial statements, tax returns, reports and similar documentation and
information previously delivered by Binks to LaSalle and the documents described
in SECTION 5.3, individually or collectively.
"FOREIGN EXCHANGE CONTRACT": shall mean any contract between LaSalle and
Binks requested by Binks and executed by Binks pursuant to the terms of SECTION
3.2 hereof that requires payment or delivery of a currency other than U.S.
Dollars.
"FOREIGN EXCHANGE EXPOSURE": shall mean, with respect to any Foreign
Exchange Contract (excluding spot contracts), an amount equal to the product of
(A) the U.S. Dollar equivalent (as reasonably determined by LaSalle, in good
faith, from time to time) of the foreign currency obligation under such Foreign
Exchange Contract, and (B) ten percent (10%), with respect to Foreign Exchange
Contracts with a maturity of less than one hundred and eighty (180)
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days, and twenty percent (20%) with respect to Foreign Exchange Contracts with a
maturities of one hundred and eighty days or more but one (1) year or less.
"FOREIGN EXCHANGE OBLIGATIONS": shall mean, at any time, the sum of (A) the
outstanding Foreign Exchange Exposure under Foreign Exchange Contracts at such
time, PLUS (B) the aggregate amount of all payments under Foreign Exchange
Contracts for which LaSalle is entitled to be and has not at such time been
reimbursed, whether by payment to LaSalle by way of a loan (as contemplated by
SECTION 3.2 hereof) or otherwise.
"GAAP": shall mean accounting principles set forth as generally accepted in
the then-currently effective Statements of the Auditing Standards Board of the
American Institute of Certified Public Accountants, consistently applied from
period to period.
"GOVERNMENTAL REGULATIONS": shall mean any and all laws, statutes,
ordinances, rules, regulations, treaties, judgments, writs, injunctions,
decrees, orders, awards and standards, or any similar requirement, of the
government of the United States or any foreign government or any state,
province, municipality or other political subdivision thereof or therein or any
court, agency, instrumentality, regulatory authority or commission of any of the
foregoing.
"HAZARDOUS MATERIALS": shall mean asbestos-containing materials, mono or
polychlorinated biphenyls, urea formaldehyde products, radon, radioactive
materials and any "hazardous substance", "hazardous waste", "pollutant", "toxic
pollutant", "oil" or "contaminant" as used in, or defined pursuant to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 USC Sections 9601 ET SEQ.; the Federal Clean Air Act, as amended, 42
USC Sections 7401 ET SEQ., and regulations thereunder; the Resource Conservation
and Recovery Act, 42 USC Sections 6901 ET SEQ., as amended, and regulations
thereunder; the Federal Water Pollution Control Act, 33 USC Sections 1251 ET
SEQ., as amended, and regulations thereunder; 40 CFR Sections 116.1 ET SEQ.,
Sections 129.1 ET SEQ. and Sections 302.1 ET SEQ.; and any other substance,
waste, pollutant, contaminant or material, including petroleum products and
derivatives, the use, transport, disposal, storage, treatment, recycling,
handling, discharge, release, threatened release or omission of which is
regulated or governed by any Environmental Laws.
"INDEBTEDNESS": shall mean all obligations and liabilities of Binks to any
Person other than LaSalle, including, but not limited to, (A) all indebtedness
whether primary or secondary, direct or indirect, absolute or contingent,
liquidated or unliquidated, insured or uninsured, fixed or otherwise,
heretofore, now or from time to time hereafter owing, due or payable, however
evidenced, created, incurred or acquired, and howsoever arising, whether by
written or oral agreement, operation of law or otherwise; (B) all obligations or
liabilities of any Person that are secured by any lien, claim, encumbrance or
security interest upon any assets of Binks, whether or not Binks has assumed or
become liable for the payment thereof; and (C) that portion of any obligation or
liability created or arising under any capitalized lease of real or personal
property, or conditional sale or other title retention agreement which is
properly recorded on Binks' balance sheet as a liability in accordance with
GAAP, whether or not the rights and remedies of the
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lessor, seller or lender thereof are limited to repossession of the property
giving rise to such obligations or liabilities.
"INTEREST RATE": shall mean, at Binks' option, either the Bankers
Acceptance Rate, the Prime Rate or the LIBOR Rate, payable in connection with
the Financial Accommodations, excepting only the Foreign Exchange Obligations.
"LIBOR RATE": shall mean the daily rate equivalent of one percent (1%) per
annum in excess of the per annum offered rate of interest for deposits in United
States of America Dollars for the applicable "LIBOR Interest Period"
(hereinafter defined), which appears on the Telerate Screen page 3750 (British
Bankers Association LIBOR setting) at approximately 11:00 a.m., London time, two
(2) business days prior to commencement of the LIBOR Interest Period for
delivery on the first day of such LIBOR Interest Period for the number of days
contained therein and in the amount of the loan at the LIBOR Rate to be
outstanding during the LIBOR Interest Period. If two or more such offered rates
appear on the Telerate Screen, then the LIBOR Rate will be the daily rate
equivalent of one percent (1%) per annum in excess of the arithmetic mean of
such offered rates. If the Telerate Screen is not reasonably available to
LaSalle, then the LIBOR Rate shall be the daily rate equivalent of one percent
(1%) per annum in excess of the per annum rate of interest at which deposits in
United States of America Dollars for such LIBOR Interest Period are offered to
LaSalle by other prime banks in the London interbank market, at approximately
11:00 a.m., London time, two (2) business days preceding the applicable LIBOR
Interest Period, as determined in good faith by LaSalle. Binks shall give
LaSalle at least three (3) Business Days prior written notice or telecopy notice
of each proposed Advance at the LIBOR Rate. Such notice shall include (A) the
date and amount of the requested Advance at the LIBOR Rate; provided, however,
an Advance bearing interest at the LIBOR Rate shall be in the minimum amount of
One Million and no/100 Dollars ($1,000,000.00), with integral amounts of One
Hundred Thousand and no/100 Dollars ($100,000.00) thereafter; and (B) the
duration of the LIBOR Interest Period applicable to such Advance. Binks may not
prepay any Advance bearing interest at the LIBOR Rate, unless contemporaneously
therewith, Binks pays the amounts described in SECTION 2.9 hereof. Each such
notice shall be accompanied by a Request for Advance at the LIBOR Rate in the
form of Exhibit "B" to this Loan Agreement.
"LIBOR INTEREST PERIOD": shall mean the period commencing the day of each
Advance at the LIBOR Rate and, as set forth in Binks' notice to LaSalle,
continuing for either a thirty (30), sixty (60), ninety (90), one hundred twenty
(120), or one hundred eighty (180) day period. Binks may not select a LIBOR
Interest Period which expires after July 12, 1997. At the end of the LIBOR
Interest Period, if Binks fails (i) to notify LaSalle in the manner provided for
a new Advance that Binks desires to continue the Advance and the rate option and
interest period applicable thereto or (ii) repay the Advance in full, then such
Advance bearing interest at the LIBOR Rate shall automatically be converted to
an Advance bearing interest at the Prime Rate.
"LIEN": shall mean any pledge, assignment, hypothecation, mortgage,
security interest, deposit arrangement, option, conditional sale or title
retaining contract, sale and leaseback transaction, financing statement filing
(other than a precautionary financing statement with respect
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to a lease that is not in the nature of a security interest), lessor's or
lessee's interest under any lease, subordination of any claim or right, or any
other type of lien, charge, encumbrance, preferential arrangement or other claim
or right.
"MATERIAL ADVERSE EVENT": shall mean any event, occurrence or state of
facts which has or would reasonably be expected to have a material adverse
effect on the business, properties, assets, operations or condition (financial
or otherwise) of Binks itself or of Binks and its consolidated Subsidiaries as a
whole.
"MULTIEMPLOYER PLAN": shall mean any "multiemployer" plan as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"NBD LOAN DOCUMENTS": shall mean that certain Thirty-Three Million and
no/100 Dollars ($3,000,000.00) Revolving Credit Agreement dated as of
February 24, 1992, by and between Binks and NBD Bank, N.A. ("NBD"), the
documents, instruments and agreements executed in connection therewith and any
modification, amendments, renewals, substitutions or replacements therefor.
"NYBD OBLIGATIONS": shall mean the payment and performance obligations of
Binks under the NBD Loan Documents.
"OTHER AGREEMENTS": shall mean all agreements, instruments and documents,
including, but not limited to, guaranties, mortgages, deeds of trust, pledges,
powers of attorney, consents, assignments, contracts, notices, security
agreements, leases, financing statements and all other writings heretofore, now
or from time to time hereafter executed by or on behalf of Binks or any other
Person and delivered to LaSalle in connection with Binks' Liabilities or any of
the transactions contemplated herein, together with any amendments,
modifications, extensions or renewals thereto, including, but not limited to,
that certain Revolving Note of even date herewith executed and delivered by
Binks to LaSalle in a maximum aggregate principal amount not to exceed Five
Million and no/100 Dollars ($5,000,000.00), together with any amendments,
modifications, renewals or substitutions thereto (collectively, the "Revolving
Note"), and the other documents, instruments and agreements described in
SECTION 6.1 of this Loan Agreement.
"PBGC": shall mean the Pension Benefit Guaranty Corporation and any
successor or replacement agency.
"PERMITTED INDEBTEDNESS": shall mean, collectively:
(A) the NBD Obligations, the Indebtedness evidenced by the Equitable Notes
and the other Indebtedness identified on SCHEDULE 5.2(J) hereto;
(B) Indebtedness secured by Permitted Liens;
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(C) Indebtedness of Subsidiaries (as to which Binks does not have any
contingent liability), if and to the extent that the incurring or continuing
such Indebtedness is not in violation of Section 5.1(S);
(D) Indebtedness of Binks and its Subsidiaries to each other;
(E) Indebtedness created, incurred or assumed by Binks in the ordinary
course of its business to obtain bid, proposal or performance bonding during the
course of any construction project undertaken by Binks;
(F) Indebtedness resulting from the endorsement by Binks of instruments or
items of payment made in the ordinary course of business;
(G) Indebtedness of another company in connection with the acquisition of
such company as expressly permitted in this Loan Agreement;
(H) Indebtedness in respect of capitalized leases described on
SCHEDULE 5.2(J) hereto plus an amount not to exceed Two Million and no/100
Dollars ($2,000,000.00);
(I) unsecured Indebtedness (including Binks' Liabilities) of Binks
incurred in the ordinary course of business in an aggregate principal amount not
to exceed Fifteen Million and no/100 Dollars ($15,000,000.00);
(J) Indebtedness in respect of judgments or awards which have been in
force for less than the applicable appeal period so long as execution is not
levied thereunder (or in respect of which Binks shall at the time in good faith
be prosecuting an appeal or proceedings for review and in respect of which a
stay of execution shall have been obtained pending such appeal or review) and
which does not, in the aggregate, exceed Ten Million and no/100 Dollars
($10,000,000.00) or for which adequate reserves have been established;
(K) Indebtedness constituting Subordinated Debt;
(L) Contingent liabilities of Binks and its Subsidiaries set forth on
SCHEDULE 5.2(J) hereto; and
(M) Indebtedness which in the aggregate does not exceed One Million and
no/100 Dollars ($1,000,000.00), but in any event together with Indebtedness
described in clause (J) of this definition of "Permitted Indebtedness" does not
exceed Fifteen Million and no/100 ($15,000,000.00).
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"PERMITTED INVESTMENTS": shall mean the following: (A) investments in cash
and cash equivalents; (B) investments of Binks which are outstanding on the date
of this Loan Agreement, as specified in SCHEDULE 5.2(E) hereto: (C) Advances to
employees made in the ordinary course of business not to exceed an aggregate of
Five Hundred Thousand and no/100 Dollars ($500,000.00) outstanding at any time
plus the amounts set forth on SCHEDULE 5.2(E) hereto; (D) loans or advances in
the nature of accounts receivables or notes receivables arising from the sale of
goods and services in the ordinary course of business; (E) investments of any
Subsidiary of Binks in Binks or another Subsidiary of Binks; (F) investments
made in connection with Permitted Transactions; and (G) other Investments by
Binks and its Subsidiaries not to exceed One Million and no/100 Dollars
($1,000,000.00) in the aggregate.
"PERMITTED LIENS": shall mean, collectively:
(A) Liens for taxes not delinquent or for taxes being contested in good
faith by appropriate proceedings and as to which adequate financial reserves (or
other appropriate provisions as may be required by GAAP) have been established
on its books and records;
(B) Liens created and maintained in the ordinary course of business which
are not material in the aggregate, and which would not constitute or result in a
Material Adverse Event and which constitute (1) pledges or deposits under
worker's compensation laws, unemployment insurance laws or similar legislation;
(2) good faith deposits in connection with bids, tenders, contracts or leases to
which Binks or any of its Subsidiaries is a party for a purpose other than
borrowing money or obtaining credit, including rent security deposits; (3) Liens
imposed by law, such as those of carriers, warehousemen, mechanics, materialmen
and repairmen and other like statutory Liens arising in the ordinary course of
business which are not overdue for a period of more than thirty (30) days or
which are being contested in good faith, if payment of the obligation secured
thereby is not yet due; (4) Liens securing taxes, assessments or other
governmental charges or levies not yet subject to penalties for non-payment; and
(5) pledges or deposits to secure public or statutory obligations of Binks or
any of its Subsidiaries, or surety, customs or appeal bonds to which Binks or
any of its Subsidiaries is a party;
(C) Liens affecting real property which constitute minor survey exceptions
or defects or irregularities in title, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of such real property, provided that all of the
foregoing, in the aggregate, do not at any time materially detract from the
value of said properties or materially impair their use in the operations of the
businesses of Binks or any of its Subsidiaries;
(D) Purchase money Liens upon or in property of Binks or any of its
Subsidiaries acquired after the date of this Loan Agreement; provided, however,
that (1) no such Lien shall extend to or cover any other property of Binks or
any of its Subsidiaries; and (2) the aggregate outstanding amount of
Indebtedness secured by all such purchase money Liens shall not exceed One
Million and no/100 Dollars ($1,000,000.00) at any time after the date of this
Loan Agreement;
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(E) Liens arising in respect of capitalized leases not otherwise
prohibited under this Loan Agreement, but only if such Liens cover only the
property financed under such capitalized leases;
(F) Mortgages, pledges or security interests on the properties or assets
of a Subsidiary in favor of Binks, or between Subsidiaries;
(G) Liens created pursuant to applications or reimbursement arrangements
pertaining to letters of credit which encumber only the goods, or documents of
title covering the goods, which are sold or shipped in the transaction for which
such letters of credit were issued;
(H) Any attachment or judgment Liens with respect to a judgment not
exceeding One Million and no/100 Dollars ($1,000,000.00), unless the judgment it
secures shall not, within thirty (30) days after the entry thereof, have been
discharged or execution thereof stayed pending appeal, or shall not have been
discharged within thirty (30) days after the expiration of any such stay;
(I) Liens securing Indebtedness not to exceed Two Hundred Fifty Thousand
and no/100 Dollars ($250,000.00) in the aggregate; and
(J) Other liens or encumbrances incidental to the conduct of the business
of Binks or a Subsidiary or to the ownership of its respective properties or
assets, which were not incurred in connection with the borrowing of money or the
obtaining of credit (other than letters of credit) and which do not materially
detract from the value of the properties or assets of Binks or of Binks and its
Subsidiaries taken as a whole or materially affect the use thereon in the
operation of their business.
Each Lien described in this definition of "Permitted Liens" may be suffered
to exist upon the same terms as those existing on the date hereof in accordance
with past business practices of Binks and its Subsidiaries.
"PERMITTED TRANSACTION": shall mean any one of the following: (A) the
merger, consolidation or amalgamation of a Subsidiary of Binks into Binks (where
Binks is the surviving corporation) or with another subsidiary of Binks; (B) any
liquidation of any Subsidiary of Binks into Binks or another Subsidiary of
Binks; (C) any transaction or transactions which in the aggregate do not exceed
Five Million and no/100 Dollars ($5,000,000.00); (D) inventory or other assets
sold or disposed of in the ordinary course of business and sales or dispositions
of obsolete or damaged material or equipment; (E) sales or dispositions of
assets by one Subsidiary of Binks to Binks or another Subsidiary of Binks, if in
compliance with SECTION 5.2(L); and (F) other sales or dispositions of assets
(other than accounts receivable) to Persons which are Affiliates of Binks if the
value of such assets (which, for these purposes, shall mean the greater of such
assets' book value at the time of sale or other disposition or the proceeds
realized by Binks or its Subsidiaries under this clause (F) after the date of
this Loan Agreement), does not exceed five percent (5%)
10
of the consolidated total assets of Binks and its consolidated Subsidiaries
determined as of the end of the fiscal year immediately preceding each such sale
or disposition.
"PERSON": shall mean any individual, sole proprietorship, partnership,
joint venture, trust, trustee, estate, unincorporated organization, association,
corporation, institution, entity, party or foreign or United States government,
whether federal, state, county, city, municipal or otherwise, including, but not
limited to, any instrumentality, division, agency, body or department thereof.
"PLAN": shall mean with respect to any Person, any pension plan subject to
Title IV of ERISA or to the minimum funding standards of Section 412 of the Code
which has been established or maintained by such Person, any Subsidiary of such
Person or any ERISA Affiliate, or by an other Person, if such Person, any
Subsidiary of such Person or any ERISA Affiliate could have liability with
respect to such pension plan.
"PRIME RATE": shall mean the floating annual rate of interest announced
from time to time by LaSalle as its corporate prime, reference or base rate of
interest, as the case may be, which rate may not be the most favorable or lowest
rate of interest offered or charged by LaSalle to its commercial or other
borrowers.
"PROHIBITED TRANSACTION": shall mean a non-exempt prohibited transaction as
described in Section 4975 of ERISA.
"REPORTABLE EVENT": shall mean a reportable event as described in Section
4043(b) of ERISA including those events as to which the 30-day notice period is
waived under Part 2615 of the regulations promulgated by the PBGC under ERISA.
"REQUEST FOR LOAN": shall mean a Request for Advance at the Bankers
Acceptance Rate in the form attached hereto as Exhibit "A", a Request for
Advance at the LIBOR Rate in the form attached hereto as Exhibit "B" or a
Request for Advance at the Prime Rate in the form attached hereto as Exhibit
"C".
"RESTRICTED PAYMENTS": shall mean any dividend (other than dividends
payable solely in capital stock of such Person) or returns of capital to any
stockholder of such Person, or any other distribution, payment or delivery of
property or cash to any of such Person's stockholders, or any redemption,
retirement, purchase or other acquisition of capital Stock of such Person.
"SECURITIES ACT": shall mean the Securities Act of 1933, as amended from
time to time, and any successor statute of similar import, together with the
regulations thereunder as in effect from time to time.
"SECURITIES EXCHANGE ACT": shall mean the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute of similar import,
together with the regulations thereunder, as in effect from time to time.
11
"STOCK": shall mean any and all shares and other equity and ownership
interests, however designated, of or in a corporation, whether or not voting,
including, but not limited to, common stock, warrants, preferred stock,
convertible debentures and all agreements, instruments and documents
convertible, in whole or in part, into any one or more of the foregoing.
"SUBORDINATED DEBT": shall mean Indebtedness subordinated to Binks'
Liabilities and incurred on terms reasonably acceptable to LaSalle.
"SUBSIDIARY": shall mean any other Person (whether now existing or
hereafter organized or acquired) in which (other than directors' qualifying
shares required by law) at least a majority of the securities or other ownership
interest of each class having ordinary voting power or analogous right (other
than securities or other ownership interest which have such power or right only
by reason of the happening of a contingency), at the time as of which any
determination is being made, are owned, beneficially and of record, by such
Person or by one or more of the other subsidiaries of such Person or by any
combination thereof, including, without limitation, when used with respect to
Binks, the Subsidiaries identified on Exhibit "C" hereto.
"UNFUNDED BENEFIT LIABILITIES": shall mean, with respect to any Plan as of
any date, the amount of the unfunded benefit liabilities determined in
accordance with Section 4001(a)(18) of ERISA.
1.2 Except as otherwise defined in this Loan Agreement or the Other
Agreements, any accounting terms used in this Loan Agreement which are not
specifically defined herein shall have the meanings given them in accordance
with GAAP. Unless the context indicates otherwise, all other words, terms or
phrases used herein shall be defined by the applicable definition therefor, if
any, in the Uniform Commercial Code as adopted by the State of Illinois
2. LOANS: GENERAL TERMS
2.1 Except as otherwise provided in this Loan Agreement or the Other
Agreements, if not sooner paid, that portion of Binks' Liabilities consisting
of: (A) all principal payable on account of that portion of the Financial
Accommodations provided by LaSalle to Binks hereunder as evidenced by the
Revolving Note shall be payable in full by Binks to LaSalle on July 12, 1997;
(B) Binks' obligations to LaSalle with respect to Foreign Exchange Contracts
shall be payable in accordance with the terms thereof and SECTION 3.2 hereof;
(C) all costs, fees and expenses payable pursuant to this Loan Agreement and the
Other Agreements shall be payable by Binks to LaSalle, or to such other Person
designated by LaSalle, on demand; (D) interest payable pursuant to this Loan
Agreement and the Other Agreements shall be payable by Binks to LaSalle as
follows: (1) Interest on Advances made at the Prime Rate shall be payable
monthly in arrears; (2) Interest on Advances made a the LIBOR Rate shall be
payable in arrears on the last day of the LIBOR Interest Period during which
such interest accrued; provided that if the relevant LIBOR Interest Period
exceeds ninety (90) days, accrued interest shall also be payable upon the 90-day
anniversary of such LIBOR Interest Period; and (3) Interest on Advances made at
the Bankers Acceptance Rate shall be payable in arrears on the last day of the
Bankers
12
Acceptance Interest Period during which such interest accrued; provided that if
the relevant Bankers Acceptance Interest Period exceeds ninety (90) days accrued
interest shall also be payable upon the 90-day anniversary or such Bankers
Acceptance Interest Period; and (E) the balance of Binks' Liabilities, if any,
shall be payable by Binks to LaSalle on demand. All such payments to LaSalle
shall be payable at LaSalle's principal place of business as provided in SECTION
8.14 of this Loan Agreement, or at such other place or places as LaSalle may
designate in writing to Binks. All of such payments to Persons other than
LaSalle shall be payable at such place or places as LaSalle may designate in
writing to Binks. Binks' Liabilities may be prepaid at any time in whole or in
part, without premium or penalty, but subject to Binks' obligation to compensate
LaSalle for its losses, costs and expenses pursuant to SECTION 2.9 hereof.
2.2 LaSalle's failure to record any portion of Binks' Liabilities upon the
ledgers, books, records or computer records for LaSalle shall not limit or
otherwise affect the obligations and liabilities of Binks to repay Binks'
Liabilities due and owing to LaSalle pursuant to this Loan Agreement and the
Other Agreements.
2.3 Binks represents and warrants to LaSalle that Binks shall use the
proceeds of all loans and the other Financial Accommodations made by LaSalle to
Binks pursuant to this Loan Agreement and the Other Agreements solely for proper
business purposes and consistent with all applicable laws and statutes,
including, but not limited to, Illinois Compiled Statutes, Chapter 815, Section
205/4 (815 ILCS 205/4). Binks further represents and warrants to LaSalle that
Binks does not and will not at any time hereafter own any margin securities, and
that none of the proceeds of the loans hereunder shall be used for the purpose
of (A) purchasing or carrying any margin securities; (B) reducing or retiring
any indebtedness which was originally incurred to purchase any margin
securities; or (C) any other purpose not permitted by Regulation G or Regulation
U of the Board of Governors of the Federal Reserve System, as in effect from
time to time. Binks represents, warrants and covenants unto LaSalle that all
loan proceeds will be used exclusively by Binks and its Subsidiaries.
2.4 Notwithstanding anything contained in this Loan Agreement or the Other
Agreements to the contrary, the principal amount of Binks' Liabilities
outstanding at any one time, or from time to time, shall not exceed Five Million
and no/100 Dollars ($5,000.000.00).
2.5 Each Request for Loan made by Binks pursuant to this Loan Agreement
and the Other Agreements shall constitute an automatic representation and
warranty by Binks to LaSalle that there does not then exist an "Event of
Default" (hereinafter defined) or any event or condition which with notice,
lapse of time or both would constitute an Event of Default.
2.6 Binks hereby authorizes and directs LaSalle to disburse for and on
behalf of Binks, and for Binks' account, the proceeds of loans made by LaSalle
to Binks pursuant to this Loan Agreement to such Person or Persons as Binks
shall direct.
13
2.7 Binks hereby authorizes LaSalle to debit Binks' accounts with LaSalle
for all amounts due LaSalle, including, but not limited to, the principal,
interest and other costs, fees and expenses arising under or pursuant to this
Loan Agreement, the Other Agreements or otherwise.
2.8 Binks' Liabilities are equal in rank and priority and are PARI PASSU
with all other Unsecured Senior Debt. As used in this SECTION 2.11, "Unsecured
Senior Debt" shall mean all Indebtedness of Binks which is (A) not secured by a
Permitted Lien; and (B) not subordinated in right of payment to any other
indebtedness of Binks.
2.9 If any payment of principal of any Advance bearing interest at the
LIBOR Rate or the Bankers Acceptance Rate is made other than on the last day of
the applicable LIBOR Interest Period or the Bankers Acceptance Interest Period,
respectively, then Binks shall, upon demand by LaSalle, pay to LaSalle any
amounts necessary to compensate LaSalle for any additional losses, costs or
expenses which LaSalle may reasonably incur as a result of such payment,
including, without limitation, any loss (including loss of anticipated profits),
cost or expense incurred by reason of the liquidation of reemployment of
deposits or other funds acquired by LaSalle to fund or maintain such Advance.
3. LOANS: DISBURSEMENTS
3.1 ADVANCES AND INTEREST.
(A) Provided that an Event of Default does not then exist, and provided
that all of the conditions precedent in SECTION 6 of this Loan Agreement have
been satisfied, LaSalle shall make Advances to Binks an aggregate amount not to
exceed Five Million and no/100 Dollars ($5,000,000.00) at any time, minus the
aggregate amount of any Foreign Exchange Obligations. Excepting only the
Foreign Exchange Obligations, all Advances pursuant to this SECTION 3 shall bear
interest at the interest Rate accrued on the outstanding daily unpaid principal
of each Advance (based upon a 360-day year) from the date thereof until payment
in full is made.
(B) LaSalle will disburse the proceeds of the loan in one or more Advances
(each such disbursement, an "Advance") as requested by Binks. Each request by
Binks for an Advance shall be made pursuant to a Request for Loan received by
LaSalle, not later than 12:00 noon, Chicago time, (a) with respect to a request
for an Advance at the Prime Rate or at the Bankers Acceptance Rate, on the
Business Day which is the first day of the applicable interest period, and
(b) with respect to a request for an Advance at the LIBOR Rate, on the Business
Day which is two Business Days prior to the first day of the LIBOR Interest
Period.
3.2 FOREIGN EXCHANGE CONTRACTS.
(A) Subject to and upon the terms and conditions of this Loan Agreement,
Binks may request, and LaSalle will, from time to time on or after the date of
this Loan Agreement, enter into one or more Foreign Exchange Contracts; PROVIDED
THAT in no event shall LaSalle execute a Foreign Exchange Contract if (1) the
Foreign Exchange Exposure thereunder, together with the
14
then aggregate unpaid principal amount of the Advances made under SECTION 3.1
hereof and all then outstanding Foreign Exchange Obligations shall exceed Five
Million and no/100 Dollars ($5,000,000.00); or (2) the aggregate amount of the
Foreign Exchange Obligations, including the Foreign Exchange Obligations
thereunder, shall exceed Five Hundred Thousand and no/100 Dollars ($500,000.00).
Binks shall give LaSalle written notice thereof no later than 11:00 a.m.
(Chicago time) at least two (2) business days prior to entering into such
Foreign Exchange Contract (or such shorter period of time to which LaSalle may
agree), together with a summary of all material provisions of such Foreign
Exchange Contract and the date on which such Foreign Exchange Contract is to be
executed. Each Foreign Exchange Contract shall be in form, scope and substance
reasonably satisfactory to LaSalle and shall have an expiration date of the
earlier to occur of (a) one year from the date thereof; or (b) July 12, 1997.
Each payment by LaSalle with respect to or under a Foreign Exchange Contract
shall be promptly reimbursed by Binks, together with interest thereon at the
Prime Rate, and if not so reimbursed, any such payments made under such Foreign
Exchange Contract by LaSalle shall be deemed an Advance under SECTION 3.1 hereof
made at the Prime Rate.
(B) Each request for the execution of a Foreign Exchange contract made
pursuant to and in accordance with the procedures described herein shall
constitute a representation and warranty by the Borrowers that all conditions
precedent to the execution thereof have been satisfied. The execution of any
such Foreign Exchange Contract shall be subject to and upon the terms and
conditions of this Loan Agreement.
3.3 INDEMNIFICATION. Binks hereby agrees to unconditionally indemnify
LaSalle and hold LaSalle harmless from any and all loss, claim or liability
arising from any transactions or occurrences relating to the Foreign Exchange
Contracts and all Binks' Liabilities thereunder, except where such loss, claim
or liability is due to the gross negligence or willful misconduct of LaSalle.
Except as provided in the preceding sentence, Binks' unconditional obligation to
LaSalle hereunder shall not be modified or diminished for any reason or in any
manner whatsoever.
4. REPRESENTATIONS, WARRANTIES, AND COVENANTS: INSURANCE AND TAXES
4.1 Binks and each of its Subsidiaries, at its sole cost and expense,
shall keep and maintain: (A) its assets insured for the full insurable value
against loss or damage by fire, theft, explosion, sprinklers and all other
hazards and risks ordinarily insured against by other owners or users of such
properties in similar businesses; and (B) business interruption insurance,
public liability insurance and property damage insurance relating to Binks' and
such Subsidiaries' ownership and use of its assets.
4.2 Binks and each of its Subsidiaries have each filed all material tax
returns required by Governmental Regulations to be filed and have paid (or made
adequate provision for the payment of) all material taxes due and required by
Governmental Regulations to be paid, including interest and penalties, or have
established adequate financial reserves on their respective
15
books and records for payment thereof. Binks does not know of any actual
proposed tax assessment the effect of which would constitute a Material Adverse
Event.
4.3 Except as otherwise disclosed in the latest balance sheet delivered
pursuant to SECTION 5.3, each of Binks and its Subsidiaries has a valid and
indefeasible ownership interest in all of the properties and assets reflected in
such balance sheet or subsequently acquired. All of such properties and assets
are free and clear of any Lien, except for Permitted Liens.
4.4 Binks and each of its Subsidiaries are in compliance in all material
respects with all Governmental Regulations applicable to such Person or its
business or properties, unless the failure to so comply would not constitute a
Material Adverse Event. Without limiting the generality of the foregoing, all
licenses, permits, orders or approvals which are required under any Governmental
Regulations in connection with any of the business or properties of Binks or any
subsidiaries (collectively, "Permits") are in full force and effect, no notice
of any violation has been received in respect of any such Permits and no
proceeding is pending or, to the knowledge of Binks, threatened to terminate,
revoke or limit any such Permits if the effect of any of the foregoing would
constitute a Material Adverse Event.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS: GENERAL
5.1 Binks represents, warrants and covenants unto LaSalle that: (A) each
of Binks and its Subsidiaries is, and at all times hereafter shall be, a
corporation, duly organized and existing and in good standing under the laws of
the jurisdiction of its organization and qualified or licensed to do business in
all jurisdictions in which the laws thereof require Binks or any such Subsidiary
to be so qualified or licensed, except where the failure to be so qualified or
licensed would not create a Material Adverse Event; (B) Binks has the right,
power and capacity and is duly authorized and empowered to enter into, execute,
deliver and perform this Loan Agreement and the Other Agreements; (C) the
execution, delivery and performance by Binks of this Loan Agreement and the
Other Agreements shall not, by the lapse of time, the giving of notice or
otherwise, constitute a violation of any applicable law or a breach of any
provision contained in Binks' Articles of Incorporation or By-Laws, or contained
in any agreement, instrument or document to which Binks or any of its
Subsidiaries is now or hereafter party or by which it is or may become bound;
(D) Binks (1) was and is solvent; (2) had and has adequate cash flow to pay its
debts as they mature or otherwise become due; and (3) had and has sufficient
capital to conduct its business in the ordinary course; (E) the value of Binks'
property and assets, at fair market valuation, was and is greater than the sum
of its debts and liabilities; (F) except as otherwise disclosed on Exhibit "F"
hereof, there are no actions or proceedings which are pending or, to Binks'
knowledge, threatened, against Binks or any of its Subsidiaries which would be
reasonably likely to result, either individually or collectively, in any
Material Adverse Event or in any material adverse effect on the legality,
validity or enforceability of this Loan Agreement or the Revolving Note; (G)
neither Binks nor any of its Subsidiaries is subject to the renegotiation of any
government contracts; (H) Binks and each of its Subsidiaries possesses adequate
assets, licenses, patents, copyrights, trademarks and trade names to continue to
conduct its business as currently conducted by it; (I) Binks and each of its
Subsidiaries has been and is in good standing
16
with respect to all governmental permits, certificates, consents and franchises
necessary to continue to conduct its business as previously conducted by it and
to own or lease and operate its properties as now owned or leased by it, except
for permits, certificates, consents and franchises, the absence of which is not
reasonably likely to result in a Material Adverse Event; (J) neither Binks nor
any of its Subsidiaries is a party to any contract or agreement or subject to
any charge, restriction, judgment, decree or order which is reasonably likely to
result in a Material Adverse Event; (K) neither Binks nor any of its
Subsidiaries is in violation of any applicable statute, regulation or ordinance
of the United States of America, of any state, city, town, municipality, county,
or of any other jurisdiction, or of any agency thereof in any respect affecting
its business, property, assets, operations or condition, financial or otherwise,
which is reasonably likely to result in a Material Adverse Event; (L) neither
Binks nor any of its Subsidiaries is in default with respect to any financial or
negative covenants in any indenture, loan agreement, mortgage, deed or other
similar agreement relating to the borrowing of monies to which it is a party or
by which it is bound, including, but not limited to, the NBD Loan Documents, the
Comerica Loan Documents, the ANB Loan Documents and the Equitable Notes; (M) the
Financials fairly and accurately present the information set forth therein which
may include, but is not limited to, the assets, liabilities, financial
conditions and results of operations of Binks, its consolidated Subsidiaries and
such other Persons described therein as of and for the period ending on such
dates and have been prepared in accordance with GAAP; (N) all outstanding shares
of capital stock of each class of each Subsidiary of Binks are and will be
validly issued and will be fully paid and nonassessable and are and will be
owned, beneficially and of record, by Binks or a Subsidiary of Binks, free and
clear of any Liens; (O) except as required by statute in any jurisdiction
governing Binks or any of its Subsidiaries, none of the Subsidiaries of Binks is
subject to any Governmental Regulation or any limitation under its charter or
by-laws (or other governing documents) or any agreement or other instruments
which restricts or limits the ability of such Subsidiary to declare or make any
Restricted Payments to Binks or any other Subsidiary of Binks; (P) there has
been no material and adverse change in the assets, liabilities or financial
condition of Binks and its consolidated Subsidiaries since the date of the
Financials; (Q) Binks shall comply with each of the financial covenants as set
forth in Section 6.3 of the NBD Loan Documents, notwithstanding any earlier
termination or expiration of the NBD Loan Documents; provided, however, that in
the event that Binks enters into a new facility with NBD or with another
financial institution, the proceeds of which facility replace the NBD
Obligations, the financial covenants set forth in the documents representing
such new facility, Binks shall instead comply with each of the financial
covenants set forth in such documents as of the effective date thereof; and (R)
Binks shall maintain a system of accounting established and administered in
accordance with sound business practices to permit preparation of financial
statements in accordance with GAAP and to comply with the requirements of this
Loan Agreement and, at any reasonable time and from time to time, permit LaSalle
or any of LaSalle's agents or representatives to examine and make copies of
abstracts from the records and books of account of, and visit the properties of,
such Person and to discuss the affairs, finances and accounts of such Person
with their respective directors, officers, employees and independent auditors,
and by this provision, Binks, for itself and its Subsidiaries (with each such
Person's consent) does hereby authorize the same
17
5.2 Binks represents, warrants and covenants unto LaSalle that neither
Binks nor any of its Subsidiaries shall now or at any time hereafter: (A) permit
or suffer any security interest or lien, levy, attachment or restraint to be
made affecting any of its assets other than Permitted Liens; (B) permit or
suffer any receiver, trustee or assignee for the benefit of creditors to be
appointed to take possession of all or any of Binks' or any Subsidiary's
material assets; (C) merge, consolidate with or acquire any Person other than
pursuant to a Permitted Transaction; (D) except as permitted under this Loan
Agreement, enter into any transaction not in the ordinary course of business;
(E) other than in the ordinary course of business and pursuant to a Permitted
Investment, make any investment in the securities of any Person; (F) guarantee
or otherwise, in any way, become liable with respect to the obligations or
liabilities of any Person other than Permitted Indebtedness; ( G) make any
material change in Binks' or any Subsidiary's capital structure or in any of its
business objectives, purposes and operations which might in any way materially
adversely affect the repayment of Binks' Liabilities; (H) encumber, sell,
pledge, mortgage, lease, or otherwise dispose of or transfer, whether by merger,
consolidation or otherwise, any of Binks' or its Subsidiary's assets other than
pursuant to a Permitted Transaction; (I) make any Restricted Payments other than
(1) Restricted Payments of a Subsidiary of Binks to Binks or another Subsidiary
of Binks; and (2) Restricted Payments by Binks if and so long as no Default or
Event of Default has occurred and is continuing or would result from such
Restricted Payment; (J) incur Indebtedness, except (1) renewals or extensions of
existing Indebtedness; (2) trade payables arising in the ordinary course of
business; and (3) Permitted Indebtedness; (K) enter into, or permit or suffer to
exist, any agreement or other instrument (including any limitation in charter,
bylaws or other governing documents) pursuant to which: (1) Binks agrees with
any other Person (other than NBD Bank and LaSalle) not to permit or suffer to
exist any Liens on any or all of its assets, properties or rights, other than
Permitted Liens; or (2) any restriction or limitation is established on the
ability of any Subsidiary of Binks to declare or make dividends, returns of
capital or other distributions to Binks or any other Subsidiary of Binks; and
(L) enter into, or permit or suffer to exist, any transaction or arrangement
with any affiliate, except: (1) on terms which are no less favorable to each of
Binks and its subsidiaries, as the case mad be, than could be obtained from
Persons who are not Affiliates; and (2) Permitted Investments.
5.3 Binks represents, warrants and covenants unto LaSalle that it will
deliver to LaSalle the following financial information, all of which shall
accurately reflect the financial condition of Binks at and for the periods of
time described therein and shall be prepared in accordance with GAAP
consistently applied from period to period:
(A) As soon as available but in no event later than ninety (90) days after
the close of each fiscal year of Binks, the audited financial statements of
Binks, including, but not limited to, (1) a balance sheet; (2) a statement of
income and retained earnings; and (3) a statement of cash flows together with
the unqualified opinion of a firm of external independent certified public
accountants selected by Binks and reasonably acceptable to LaSalle.
(B) Concurrently with the delivery of the audited financial statements
described in SECTION 5.3(A) above, a certificate of the Chief Financial Officer
of Binks certifying to LaSalle
18
that, based upon such financial statements, (1) Binks is in compliance with all
financial covenants and ratios described in SECTION 5.1(Q) hereof, together with
the calculations for the financial covenants and ratios described therein; and
(2) the Chief Financial Officer is not aware of any event or occurrence which
constitutes or upon notice, lapse of time or both would constitute an Event of
Default.
(C) As soon as available but in no event later than forty-five (45) days
after the end of each fiscal quarter, unless such fiscal quarter is the last
quarter of such fiscal year, Binks' quarterly consolidated and consolidating
financial statements, including, but not limited to, (1) a balance sheet; (2) a
statement of income and retained earnings; (3) a statement of cash flows, and
the year-to-date statement for that portion of Binks' fiscal year then elapsed;
and (4) a comparison for the same portion of the preceding fiscal year.
(D) Concurrently with the delivery of Binks' internally prepared financial
statements pursuant to SECTION 5.3(C) above, a certificate of the Chief
Financial Officer of Binks certifying to LaSalle that, based upon the internally
prepared financial statements, (1) the Chief Financial Officer is not aware of
any event or occurrence which constitutes or upon notice, lapse of time or both
would constitute an Event of Default; and (2) Binks is in compliance with all
financial covenants described in SECTION 5.1(Q), together with the calculations
for the financial covenants and ratios described therein.
(E) Immediately upon the xxxxxx thereof, copies of each (1) annual report,
proxy, financial statement or other communication sent to Binks' shareholders;
and (2) annual, regular, periodic, special and other reports and registration
statements which Binks files with the Securities and Exchange Commission, the
National Association of Securities Dealers or with any other securities exchange
or other similar commission or organization.
(F) Concurrently with the delivery of the financial statements described
in SECTION 5.3(A), a brief management discussion and analysis of the financial
condition and results of operations of Binks and its Subsidiaries as of the end
of and for the period covered by such financial statements (including a
comparison thereof with the financial condition and results of operations of
Binks and its Subsidiaries as of the end of, and for the comparable period in,
the prior fiscal year) and describing any significant events relating to Binks
or its Subsidiaries occurring during such period.
(G) Such other data and information, financial and otherwise as LaSalle,
from time to time, may reasonably request.
5.4 Binks represents, warrants and covenants unto LaSalle that Binks has
filed and will continue to file with the Securities and Exchange Commission, in
accordance with applicable law, all forms, reports, documents, proxy statements
and registration statements required to be filed by Binks under the Securities
Act or the Securities Exchange Act, and none of such forms, reports, documents,
proxy statements or registration statements contained or will contain any untrue
statement of a material fact or omitted or will omit to state a material fact
required to be
19
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which such statements were made.
5.5 Binks, its Subsidiaries, their ERISA Affiliates and their respective
Plans are in compliance in all material respects with those provisions of ERISA
and of the Code which are applicable with respect to any such Plan. No
Prohibited Transaction and no Reportable Event has occurred with respect to any
such Plan. None of Binks or any of its Subsidiaries or any of their ERISA
Affiliates is a contributing employer with respect to any Multiemployer Plan.
Binks, its Subsidiaries and each of their ERISA Affiliates have met the minimum
funding requirements under ERISA and the Code with respect to each of their
respective Plans, if any, and have not incurred any liability to the PBGC (other
than for the payment of insurance premiums) or any Plan, other than to make
contributions in the ordinary course of business. The execution, delivery and
performance of this Loan Agreement and the other Agreements does not constitute
a Prohibited Transaction. There is no material Unfunded Benefit Liability, with
respect to any Plan of Binks, its Subsidiaries or their ERISA Affiliates.
5.6 (A) Binks and each Subsidiary is in substantial compliance with all
material Environmental Laws in jurisdictions in which Binks or any Subsidiary
owns or operates, or has owned or operated, a facility or site, or arranges or
has arranged for disposal or treatment of Hazardous Materials, accepts or has
accepted for transport any Hazardous Materials or holds or has held any such
interest in real property, except where the failure to so comply would not
constitute a Material Adverse Event
(B) No material written demand, claim, notice, suit in equity, action,
administrative action, investigation or inquiry whether brought by any
governmental authority, private Person or otherwise, arising under, relating to
or in connection with any Environmental Laws has been received by Binks, or, to
the best of Binks's knowledge, threatened against Binks or any Subsidiary, any
real property or any past or present operation of Binks or any Subsidiary which
would result in a Material Adverse Event.
(C) Except as set forth in SCHEDULE 5.6(C), neither Binks nor any
Subsidiary (1) has received any notice that it is the subject of any
governmental investigation evaluating whether any remedial action is needed to
respond to a release of any Hazardous Materials into the environment; or (2) has
received any notice of any Hazardous Materials in or upon any of its properties
in violation of any Environmental Laws.
(D) To the best of Binks' knowledge, no release, threatened release or
disposal of Hazardous Materials is occurring or has occurred on, under or to any
property in which Binks or any of its Subsidiaries holds any interest or
performs any of its operations, in violation of any Environmental Laws to the
extent that any such release, threatened release or disposal would constitute a
Material Adverse Event.
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6. CONDITIONS PRECEDENT
6.1 LaSalle's obligation to make the initial loan and execute and deliver
the initial Foreign Exchange Contract pursuant to this Loan Agreement and the
Other Agreements is subject to the full and timely performance of the following
covenants prior to or contemporaneously with the making of the initial loan.
(A) LaSalle shall have received each of the following, in form and
substance reasonably satisfactory to LaSalle and its counsel:
(1) (a) A copy of the Articles of Incorporation of Binks certified by
the Secretary of State of Delaware, and a certificate or other satisfactory
evidence as to the qualification to conduct business and good standing of
Binks from the Secretaries of State of Illinois and Delaware; (b)
certificates of the Secretary or an Assistant Secretary of Binks dated the
date hereof, and certifying (i) that attached thereto are true and complete
copies of the by-laws of Binks and true and complete copies of resolutions
duly adopted by the Board of Directors of Binks authorizing the execution,
delivery and performance of this Loan Agreement and any Other Agreements
and the borrowing by Binks hereunder and all aspects of the financing
transactions with LaSalle requiring approval by Binks; (ii) that such
resolutions have not been modified, rescinded or amended and are in full
force and effect and that the Articles of Incorporation of Binks have not
been amended as shown on the good standing certificate furnished pursuant
to (a) above; and (iii) as to the incumbency and specimen signature of each
officer of Binks executing this Loan Agreement and the Other Agreements;
and (c) such other instruments, documents and agreements as LaSalle or its
counsel may reasonably request
(2) A fully executed original of the Revolving Note in a maximum
aggregate principal amount not to exceed Five Million and no/100 Dollars
($5,000,000.00) duly executed and delivered by Binks to LaSalle.
(3) A fully executed original of this Loan Agreement.
(4) A favorable opinion of Binks' counsel, Skadden, Arps, Meagher,
Slate & Xxxx, addressed to LaSalle and covering such matters as may be
reasonably requested by LaSalle.
(5) Such other documents, instruments or agreements as LaSalle may
reasonably request.
(B) No Event of Default shall have occurred and be continuing.
(C) LaSalle shall have received Uniform Commercial Code, tax lien and
judgment searches reports from the Secretary of State of Illinois and the
Recorder of Deeds of Xxxx
21
County, Illinois which disclose no liens or security interests with respect to
Binks' assets other than Permitted Liens.
(D) No Material Adverse Event shall have occurred.
(E) The representations and warranties contained in this Loan Agreement
shall be true and correct as of the making of the initial loan and the execution
and delivery of the initial Foreign Exchange Contract.
6.2 LaSalle's obligation to make any loans and execute and deliver any
Foreign Exchange Contracts pursuant to this Loan Agreement and the Other
Agreements is subject to the full and timely performance or each or the
following covenants either prior to or contemporaneously with the making of each
loan and execution and delivery of each Foreign Exchange Contract.
(A) No Event of Default shall have occurred and be continuing.
(B) No material claims, litigation, arbitration proceedings or
governmental proceedings not disclosed in writing to LaSalle prior to the date
of the last previous loan or Foreign Exchange Contract shall be pending or known
to be threatened against Binks and no known material development not so
disclosed shall have occurred in any claims, litigation, arbitration proceedings
or governmental proceedings so disclosed which in the opinion of LaSalle is
reasonably likely to result in a Material Adverse Event.
(C) No Material Adverse Event shall have occurred since the latest of (1)
the date of Binks' then most recently delivered Financials, (2) the previous
Advance, or (3) the previous Foreign Exchange Contract.
(D) The representations and warranties of Binks contained in this Loan
Agreement shall be true and correct as of the making of any loan or execution
and delivery of any Foreign Exchange Contract with the same effect as though
made on such date of each loan or Foreign Exchange Contract.
7. DEFAULT
7.1 The occurrence and continuance of any one of the following events
shall constitute a default ("Event of Default") by Binks under this Loan
Agreement: (A) Binks fails to fully and timely pay Binks' Liabilities, within
five (5) business days after the date when due and payable or declared due and
payable; (B) Binks fails or neglects to perform, keep or observe any Covenant
and such failure or neglect continues thirty (30) days after delivery of notice
thereof by LaSalle to Binks; (C) any material statement, report or certificate
made or delivered by Binks, or any of its officers, employees, or agents, to
LaSalle is not materially true and correct when so made or delivered; (D) any of
Binks' material assets are attached, seized, subjected to a writ or distress
warrant or are levied upon, or come within the possession of any receiver,
trustee,
22
custodian or assignee for the benefit of creditors and is not released, vacated
or fully bonded within sixty (60) days thereof; (E) a petition under the United
States Bankruptcy Code or any similar federal, state or local law, statute or
regulation shall be filed by or against Binks and, in the case of a petition
filed against Binks and not acquiesced in or consented to by Binks such petition
is not dismissed within sixty (60) days of the filing thereof; (F) Binks shall
make an assignment for the benefit of creditors, or an application is made by or
against Binks for the appointment of a receiver, trustee, custodian or
conservator for Binks or any of Binks' assets; (G) Binks is enjoined, restrained
or in any way prevented by court order from conducting any part of its business
affairs in a manner that will result in a Material Adverse Effect; (H) a lawsuit
or other proceeding is filed by or against Binks to liquidate any of Binks'
assets; (I) a notice of lien, levy or assessment is filed of record, with
respect to any of Binks' assets by the United States of America or any
department, agency or instrumentality thereof, or by any state, county,
municipal or other governmental department, agency or instrumentality including,
without limitation, the Pension Benefit Guaranty Corporation; (J) one or more
judgments or orders (not covered by insurance) for the payment of money in an
aggregate amount of One Million and no/100 Dollars ($1,000,000.00) or more shall
be rendered against Binks or any of its Subsidiaries, or any other judgment or
order (whether or not for the payment of money) shall be rendered against or
shall affect Binks or any its Subsidiaries which causes a Material Adverse Event
and either (1) such judgment or order shall have remained unsatisfied for at
least 30 days from the date of entry thereof and Binks or such Subsidiary, as
the case may be, shall not have taken action necessary to stay enforcement
thereof by reason of pending appeal or otherwise prior to the expiration of the
applicable period of limitations for taking such actions, or if such action
shall have been taken, a initial order denying such stay shall have been
rendered; or (2) enforcement proceedings shall have been commenced by any
creditor upon such judgement; (K) Binks or any of its Subsidiaries fails to pay
any part of the principal of, the premium, if any, or the interest on, or any
other payment of money due under any of its Indebtedness beyond any period of
grace provided with respect thereto, which collectively is in excess of Five
Hundred Thousand and no/100 Dollars ($500,000.00), or Binks or any of its
Subsidiaries fails to perform or observe any other term, covenant, or agreement
contained in any agreement, document or instrument evidencing or securing any
such Indebtedness in an aggregate outstanding principal amount in excess of Five
Hundred Thousand and no/100 Dollars ($500,000.00), or under which any such
Indebtedness was issued or created beyond any period of grace, if any provided,
with respect thereto if the effect of such failure is either (1) to cause or
permit the holders of such Indebtedness (or a trustee on behalf of such holders)
to cause, any payment in respect of such Indebtedness to become due prior to its
due date: or (2) permit the holders of such Indebtedness (or a trustee on behalf
of such holders ) to elect a majority of the board of directors of Binks; (L)
Binks is in default under any of the Other Agreements; (M) a breach, default or
Event of Default with respect to a financial or negative covenant occurs under
the NBD Loan Documents; or (N) if any Person other than shareholders of record
as of the effective date oft his Agreement, together with any Affiliate(s) of
such Person, directly or indirectly, acquired 51% or more of the capital Stock,
including, without limitation, all rights, warrants and options to acquire
capital Stock of Binks.
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7.2 Upon the occurrence and during the continuation of an Event of Default
without notice or demand by LaSalle to Binks, LaSalle shall have no further
obligation to and may immediately cease advancing monies and executing and
delivering Foreign Exchange Contracts or otherwise extending credit to or for
the benefit of Binks under this Loan Agreement and the Other Agreements. Upon
an Event of Default, without notice or demand by LaSalle to Binks, Binks'
Liabilities shall be immediately due and payable. LaSalle shall be entitled to
exercise any and all rights and remedies pursuant to this Loan Agreement, the
Other Agreements, at law, in equity or otherwise. All of LaSalle's rights and
remedies under this Loan Agreement and the Other Agreements are cumulative and
non-exclusive.
8. GENERAL
8.1 Any payments at any time or times hereafter received by LaSalle on
account of Binks' Liabilities shall be applied FIRST, to the costs and expenses
of LaSalle, as set forth herein, SECOND, to the payment of accrued and unpaid
interest due under this Loan Agreement and the Other Agreements to and including
the date of such application, and THIRD, to the payment of all other amounts
(including principal and fees) then owing to LaSalle under the Loan Agreement
and the Other Agreements.
8.2 (A) This Loan Agreement and the Other Agreements may not be modified,
altered or amended, except by an agreement in writing signed by Binks and
LaSalle. Binks may not sell, assign or transfer this Loan Agreement, the Other
Agreements or any portion thereof, including, without limitation, Binks' rights
titles, interests, remedies, powers or duties thereunder.
(B) LaSalle shall have the right to sell or transfer participation
interest in this Loan Agreement and the Other Agreements so long as LaSalle's
obligations to Binks hereunder and under the Other Agreements shall remain
unchanged, and so long as the consent of such participant shall not be required
for amendments of or waivers of provisions of this Loan Agreement or the Other
Agreements other than an increase in the maximum amount of advances to be made
hereunder, an extension of the final maturity date for Advances hereunder or a
reduction in the rate of interest payable hereunder. LaSalle may assign
portions of its interest in this Loan Agreement and the Other Agreements to a
bank or other financial institution reasonably acceptable to Binks; PROVIDED
that such assignment shall be in writing, and shall be in a minimum amount of
$1,000,000 and such assignee has a minimum net worth of $200 million. In no
event will LaSalle sell or transfer participations or assign its interest in
this Loan Agreement and the Other Agreements such that LaSalle's interest in
this Loan Agreement or the Other Agreements is less than fifty-one percent
(51%).
8.3 LaSalle's failure at any time or times hereafter to require strict
performance by Binks of any provision of this Loan Agreement shall not waive,
affect or diminish any right of LaSalle thereafter to demand strict compliance
and performance therewith. Any suspension or waiver by LaSalle of an Event of
Default by Binks under this Loan Agreement or the Other Agreements shall not
suspend, waive or affect any other Event of Default by Binks under this Loan
Agreement or the Other Agreements, whether the same is prior or subsequent
thereto and
24
whether of the same or of a different type. None of the undertakings,
agreements, warranties, covenants and representations of Binks contained in this
Loan Agreement or the Other Agreements and no Event of Default by Binks under
this Loan Agreement or the Other Agreements shall be deemed to have been
suspended or waived by LaSalle unless such suspension or waiver is in writing
signed by an officer of LaSalle and directed to Binks specifying such suspension
or waiver.
8.4 Wherever possible, each provision of this Loan Agreement shall be
interpreted in such manner as to be valid and enforceable under applicable law,
but if any provision of this Loan Agreement is held to be invalid or
unenforceable by a court of competent jurisdiction, such provision shall be
severed herefrom and such invalidity or unenforceability shall not affect any
other provision of this Loan Agreement, the balance of which shall remain in and
have its intended full force and effect; provided, however, if such provision
may be modified so as to be valid and enforceable as a matter of law, such
provision shall be deemed to be modified so as to be valid and enforceable to
the maximum extent permitted by law.
8.5 This Loan Agreement and the Other Agreements shall be binding on Binks
and upon the successors of Binks, and shall inure to the benefit of LaSalle, its
permitted successors, assigns, affiliates, divisions and parents. This
provision, however, shall not be deemed to modify SECTION 8.2 hereof.
8.6 The terms and provisions of the Other Agreements are incorporated
herein by this reference thereto. The Exhibits and Schedules referred to herein
are attached hereto, made a part hereof and incorporated herein by this
reference thereto.
8.7 Except as otherwise provided in this Loan Agreement or the Other
Agreements, no termination or cancellation of this Loan Agreement or the Other
Agreements shall in any way affect or impair the powers, obligations, duties,
rights and liabilities of Binks or LaSalle in any way or respect relating to
(A) any transaction or event occurring prior to such termination or
cancellation; or (B) any of the undertakings, agreements, covenants, warranties
and representations of Binks contained in this Loan Agreement or the Other
Agreements. All such undertakings, agreements, representations, warranties and
covenants shall survive such termination or cancellation.
8.8 Except as expressly required of LaSalle herein, Binks waives any and
all notices or demands which Binks might be entitled to receive with respect to
this Loan Agreement or the Other Agreements by virtue of any applicable law,
statute or regulation, and waives presentment, demand, protest, notice, default,
dishonor, non-payment, maturity, release, compromise, settlement, extension or
renewal of this Loan Agreement and the Other Agreements.
8.9 Until LaSalle is notified by Binks to the contrary in writing in
accordance with SECTION 8.12 of this Loan Agreement, the signature upon this
Loan Agreement or upon any of the Other Agreements of (A) a "Designated Person"
(as defined in that certain secretary's Certificate of even date herewith
executed and delivered by Binks to LaSalle); or (B) any other
25
Person designated in writing to LaSalle by any of the foregoing, shall bind
Binks and be deemed to be the duly authorized act of Binks.
8.10 Binks shall reimburse LaSalle for all reasonable costs, fees and
expenses incurred by LaSalle, or for which LaSalle becomes obligated, in
connection with the negotiation, preparation, administration, enforcement and
conclusion of this Loan Agreement and the Other Agreements, including, but not
limited to, attorneys' and paralegals' fees, costs and expenses, search fees,
costs and expenses, filing and recording fees and all taxes payable in
connection with this Loan Agreement or the Other Agreements.
8.11 This Loan Agreement and the Other Agreements are submitted by Binks to
LaSalle, for LaSalle's acceptance or rejection thereof, at LaSalle's principal
place of business in Chicago, Illinois, as an offer by Binks to borrow monies
from LaSalle and shall not be binding upon LaSalle or become effective until and
unless accepted by LaSalle, in writing, at said place of business. This Loan
Agreement and the Other Agreements shall be interpreted, construed and governed
by and under the laws of the State of Illinois as to interpretation,
enforcement, validity, construction, effect, choice of law and in all other
respects including, but not limited to, the legality of the interest rate and
other charges.
8.12 Any and all notices, demands, requests, consents, designations,
waivers and other communications required or desired hereunder shall be in
writing and shall be deemed effective upon personal delivery, upon receipted
delivery by Federal Express or another overnight carrier, or three (3) days
after mailing if mailed by registered or certified mail, return receipts
requested, postage prepaid, to Binks or LaSalle at the following address or such
other address as Binks or LaSalle may specify in like manner; provided, however,
that notices of a change of address shall be effective only upon receipt
thereof.
If to Binks, then to: with a copy to:
Binks Manufacturing Company Skadden, Arps, Slate, Xxxxxxx & Xxxx
0000 Xxxx Xxxxxxx 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
Telephone Number: 847/000-0000 Telephone Number: 312/000-0000
Facsimile Transmission No.: 847/671-3000 Facsimile Transmission No.: 312/407-
0411
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If to LaSalle, then to: with a copy to:
LaSalle National Bank Xxxxx & Xxxxx
000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx Attention: Xxxx X. Xxxxxxx, Esq.
Telephone Number: 312/000-0000 Telephone Number: 312/000-0000
Facsimile Transmission No.: 312/750-6242 Facsimile Transmission No.: 312/580-
2201
8.13 The captions contained in this Loan Agreement are inserted only as a
matter of convenience and shall in no way define, limit or extend the scope or
intent of this Loan Agreement or any provision of this Loan Agreement, and shall
not affect the construction or interpretation of this Loan Agreement.
8.14 It is the intent of Binks and LaSalle that the rate of interest and
the other charges of Binks under this Loan Agreement shall be lawful; therefore,
if for any reason, the interest or other charges payable under this Loan
Agreement are found by a court of competent jurisdiction to exceed the limit
which LaSalle may lawfully charge Binks, then the obligation to pay interest and
other charges shall automatically be reduced to such limits. If Binks has paid
an amount in excess of such limit, then such amount shall be applied to reduce
the principal portion of Binks' Liabilities.
8.15 Any provision of this Loan Agreement which requires a party to perform
any act shall be construed as requiring the party to perform the act or cause
such act to be performed. Any provision of this Loan Agreement which requires a
party to refrain from taking any act shall be construed as requiring the party
to refrain from taking the act, to refrain from causing such act to be taken and
to cause those under his control from taking the act. Wherever the term
"including" is used, the same shall be deemed to mean, "including, but not
limited to." "Any" shall be deemed to mean "any and all" whenever applicable.
The singular shall be deemed to include the plural, and the plural shall be
deemed to include the singular. The masculine pronoun shall be deemed to
include the feminine and neuter pronouns, and vice versa. "Copies" shall mean
photostatic or other reproduced originals which accurately, truly, correctly and
completely present the original of the document copied.
8.16 To the extent that LaSalle receives any payment on account of Binks'
Liabilities, and any such payment or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required to
be repaid by LaSalle to Binks, its estate, trustee, receiver or any other party
under the United States Bankruptcy Code or any similar federal, state or local
law, statute or regulation, then, to the extent of such payment received, Binks'
Liabilities shall be revived and continue in full force and effect, as if such
payment had not been received by LaSalle and applied on account of Binks'
Liabilities.
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8.17 Binks hereby acknowledges and agrees that if (A) the NBD Loan
Documents, the Comerica Loan Documents, the ANB Loan Documents or the Equitable
Notes are amended modified, supplemented or terminated; or (B) a default, breach
or event of default pursuant to the NBD Loan Documents, the Comerica Loan
Documents, the ANB Loan Documents or the Equitable Notes is waived, Binks shall
immediately notify LaSalle thereof. Binks covenants and agrees with LaSalle to
deliver, within forty-five days of execution, copies of all amendments,
renewals, substitutions, additions or other similar documentation in connection
with the NBD Loan Documents, the Comerica Loan Documents, the ANB Loan Documents
or the Equitable Notes. Binks hereby acknowledges and agrees that in the event
that and so long as the aggregate principal amount of Binks' Liabilities exceeds
the aggregate principal amount of "Obligations" (as defined in the NBD Loan
Documents), no waiver of any Event of Default under the NBD Loan Documents shall
constitute a waiver of an Event of Default arising under SECTION 7.1(M) of this
Loan Agreement. Except as otherwise provided in the immediately preceding
sentence, LaSalle hereby acknowledges and agrees that any amendment,
modification or waiver by NBD or any successor thereto of the financial
covenants referred to in SECTION 5.1(Q) hereof or any waiver of Binks' failure
to comply with such financial covenants by NBD or any successor thereto shall
constitute an amendment, modification or waiver, as applicable, by LaSalle of
SECTION 5.1(Q) hereof.
8.18 Binks hereby indemnifies and holds LaSalle harmless in connection with
any written or verbal instructions received from an authorized officer of Binks
or any instructions received by LaSalle from any Person purporting to be or
otherwise identifying himself as a authorized officer of Binks, without any duty
to make any inquiry as to the genuineness of such instructions other than the
exercise of reasonable business judgment. All such verbal instructions shall be
confirmed in writing by Binks, either via first class mail, postage prepaid, or
telefax within twenty-four (24) hours of such verbal instructions. If such
verbal instructions differ in any respect from the written confirmation, the
verbal instructions shall govern as to all Advances prior to the receipt of such
written confirmation. Binks acknowledges that if LaSalle Advances any sum based
on any oral or any telefaxed request, confirmation or instructions, it shall be
for Binks' convenience, and all risks involved in the use of such procedures
shall be born by Binks, and Binks shall indemnify and hold LaSalle harmless
therefor.
8.19 This Loan Agreement constitutes the entire agreement between LaSalle
and the Borrower with regard to the subject matter hereof, and supersedes all
prior and contemporaneous communications, agreements and assurances, whether
verbal or written.
8.20 Binks and LaSalle irrevocably agree, and hereby consent and submit to
the exclusive jurisdiction of the Circuit Court of Xxxx County, Illinois, and
the United States District Court for the Northern District of Illinois, Eastern
Division, with regard to any actions or proceedings arising from, relating to or
in connection with Binks' Liabilities, this Loan Agreement or the Other
Agreements. Binks hereby irrevocably appoints and designates CT Corporation, as
Binks' true and lawful attorney-in-fact and duly authorized agent to accept any
notice which, notwithstanding Binks' waiver of notice contained in this Loan
Agreement, LaSalle desired or elects to provide to Binks and for service of
legal process, and agrees that service of
28
process upon such attorney-in-fact shall constitute personal service of process
upon Binks. Binks shall direct such attorney-in-fact to forward any such notice
or service of process to Binks at an address designated by Binks. Binks hereby
waives any rights Binks may have to transfer or change the venue of any
litigation filed in the Circuit Court of Xxxx County, Illinois, or the United
States District Court for the Northern District of Illinois, Eastern Division,
and further waives any objection to service of process upon such
attorney-in-fact in accordance with this Loan Agreement. BINKS AND LA SALLE
EACH HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY.
8.21 CONFIDENTIALITY. LaSalle agrees to hold any confidential information
that it may receive from Binks pursuant to this Agreement in confidence, EXCEPT
for disclosure:
(A) to legal counsel, accountants and other professional advisors to
LaSalle;
(B) to regulatory officials having jurisdiction over LaSalle;
(C) as required by applicable law or legal process (PROVIDED that in the
event LaSalle is so required to disclose any such confidential information,
LaSalle shall endeavor promptly to notify Binks, so that Binks may seek a
protective order or other appropriate remedy) or in connection with any legal
proceeding to which LaSalle and Binks are adverse parties; and
(D) to another financial institution in connection, with a proposed
assignment or participation hereunder provided that such disclosure is made
subject to an appropriate confidentiality agreement on terms substantially
similar to this Section.
For purposes of the foregoing, "confidential information" shall mean all
information respecting Binks or its Subsidiaries, OTHER THAN:
(E) information previously filed with any governmental agency and
available to the public;
(F) information previously published in any public medium from a source
other than, directly or indirectly, LaSalle; and
(C) information previously disclosed by Binks to any Person not associated
with Binks without a written confidentiality agreement.
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IN WITNESS WHEREOF, LaSalle and Binks have caused this Loan Agreement to be
executed and delivered by their duly authorized officers as of the date first
set forth above.
LASALLE NATIONAL BANK, BINKS MANUFACTURING COMPANY,
a national banking association a Delaware corporation
By: /S/ By: /S/ XXXXX X. XXXXXXXX
--------------------- ------------------------------
Title: VICE PRESIDENT Title: PRESIDENT AND CEO
--------------------- ---------------------------
ATTEST:
By: /S/ XXXXXXX X. XXXXXXXX
------------------------------
Title: CHIEF FINANCIAL OFFICER
---------------------------
