EXHIBIT 4(a)
SIXTH AMENDMENT TO
CREDIT AGREEMENT
This Sixth Amendment to the Credit Agreement (the "Amendment") is
entered as of this 20th day of October, 2003, by and between FIFTH THIRD BANK,
CENTRAL OHIO, an Ohio banking corporation (the "Bank"), BANCINSURANCE
CORPORATION, an Ohio corporation (the "Borrower") and AMERICAN LEGAL PUBLISHING
CORPORATION, an Ohio corporation (the "Guarantor").
WHEREAS, Bank and Borrower entered into that certain Credit
Agreement, dated as of January 25, 1993, as amended by the First
Amendment thereto, dated November 5, 1993, the Second Amendment
thereto, dated October 19, 1994, the Third Amendment thereto, dated
November 24, 1999, the Fourth Amendment thereto dated December 11, 2000
and the Fifth Amendment thereto dated July 1, 2002 (said Credit
Agreement, as amended, the "Agreement");
WHEREAS, Borrower executed and delivered to Bank a Revolving
Note, dated January 25, 1993, in the original principal amount of
$6,000,000 (the "Note");
WHEREAS, the terms of the Note were amended and restated
pursuant to Amended and Restated Revolving Notes, dated November 5,
1993, October 19, 1994, July 19, 1995, June 4, 1996, July 17, 1997,
September 1, 1998, November 24, 1999, December 11, 2000 and July 1,
2002; as of the last amendment and restatement of the Note, the
principal amount of the same is $13,000,000;
WHEREAS, pursuant to letter agreement dated November 12, 2002,
Bank consented to the dissolution of Xxxx Xxxxxxxx & Associates, Inc.,
a New York corporation, a Guarantor pursuant to the Fifth Amendment to
Credit Agreement, and Borrower affirmed its obligations under the
Credit Agreement and Revolving Note each as amended to the date thereof
and defined in the letter agreement, and Guarantor confirmed its
obligations under the Unconditional Guaranty of Payment and Performance
dated July 1, 2002; and
WHEREAS, Borrower, Bank and Guarantor desire to amend the
Agreement and the Note to extend the term thereof and to decrease the
principal amount of the Note subject to the terms and conditions set
forth herein;
NOW THEREFORE, intending to be legally bound, the parties
hereto agree as follows:
1. Amendments.
(a) Section 2. Subsections 2.1(a), 2.1(b) and 2.1(c) of the Agreement
are hereby amended and restated their entirety to read as follows:
2.1 Revolving Credit Loans. (a) Subject to the terms and
conditions hereof, Bank hereby extends to Borrower a line of
credit facility (the "Facility") under which Bank will make
loans (the "Revolving Loans") to Borrower in an aggregate
amount to not exceed $10,000,000. Bank may create and maintain
reserves from time to time based on such credit considerations
as Bank may deem appropriate. Borrower may borrow, prepay
(without penalty or charge) and reborrow under the Facility,
provided that the principal amount of all Revolving Loans
outstanding at any one time under the Facility will not exceed
$10,000,000. If the amount of the Revolving Loans outstanding
at any time under the Facility exceeds such amount, Borrower
shall immediately pay the amount of such excess to Bank in
cash.
(b) Borrower may request a Revolving Loan by written or
telephone notice to Bank. Bank will make Revolving Loans by
crediting the amount thereof to Borrower's account at Bank.
Loan proceeds will be used for working capital purposes.
(c) On the date of execution of the Sixth Amendment to Credit
Agreement, Borrower shall duly execute and deliver to Bank an
amended and restated Revolving Note in the form attached as
Exhibit 2.1 to the Amendment, in the principal amount of
$10,000,000, bearing interest as specified in such Amended and
Restated Revolving Note (the "Revolving Note") and such
Amended and Restated Revolving Note will substitute for the
Note most recently executed by Borrower on July 1, 2002.
(b) Section 2, Subsection 2. 1 (d)(i), first sentence is hereby amended
and restated in its entirety to read as follows: "The term of the
Facility will expire on June 30, 2007, and the Revolving Note will
become payable in full on that date."
(c) Section 2, Subsection 2.1 (d)(ii), first sentence is hereby amended
by deleting "June 30, 2003" and substituting "June 30, 2004" in lieu
thereof.
2. Representations, Warranties and Covenants of Borrower and
Guarantor. To induce Bank to enter into this Amendment, Borrower and Guarantor
represent and warrant as follows:
(a) The representations and warranties of Borrower contained in
Section 3 of the Agreement are deemed to have been made again on
and as of the date of execution of this Amendment, and are true
and correct as of the date of execution hereof.
(b) No Event of Default (as such term is defined in Section 6 of the
Agreement) or event or condition which, with the lapse of time or
giving of notice or both, would constitute an Event of Default
exists on the date hereof.
(c) The person executing this Amendment, the Revolving Note and the
hereinafter defined Guaranty, is a duly elected and acting
officer of Borrower or Guarantor, as appropriate, and is duly
authorized by the Board of Directors of Borrower, or Guarantor,
as appropriate, to execute and deliver this Amendment, such
Revolving Note or Guaranty on behalf of Borrower, or Guarantor,
as appropriate.
3. Conditions. Bank's obligations under this Amendment are
subject to the following conditions:
(a) Borrower shall have executed and delivered to Bank the Amended
and Restated Revolving Note in the form attached hereto as
Exhibit 2. 1.
(b) Guarantor shall have executed and delivered to Bank the Guaranty
in the form attached hereto as Exhibit 5. 1.
(c) The representations and warranties of Borrower and Guarantor in
Section 2 hereof shall be true and correct on the date of
execution of this Amendment.
(d) On or before November 1, 2003, Borrower shall have delivered to
Bank a resolution of the directors of Borrower in a form
acceptable to Bank ratifying and approving the appropriate
officer's execution of this Amendment and the Revolving Note.
(e) On or before November 1, 2003, the Guarantor shall have delivered
to Bank a resolution of the directors of Guarantor in a form
acceptable to Bank ratifying and approving the appropriate
officer's execution of this Amendment and the Guaranty.
4. General.
(a) Except as expressly modified hereby, the Agreement remains
unaltered and in full force and effect. Borrower acknowledges
that Bank has made no oral representations to Borrower with
respect to the Agreement and this Amendment thereto and that all
prior understandings between the parties are merged into the
Agreement as amended by this writing. All Loans outstanding on
the date of execution of this Amendment shall be considered for
all purposes to be Loans outstanding under the Agreement as
amended by this Amendment.
(b) Capitalized terms used and not otherwise defined herein will have
the meanings set forth in the Agreement.
(c) Nothing contained herein will be construed as waiving any default
or Event of Default under the Agreement or will affect or impair
any right, power or remedy of the Bank under or with respect to
the Loans, the Agreement, as amended, the Note, as amended and
restated, or any agreement or instrument guaranteeing, securing
or otherwise relating to the Loans.
(d) This Amendment shall be considered an integral part of the
Agreement, and all references in the Agreement itself or any
document referring thereto shall, on and after the date of
execution of this Amendment, be deemed to be references to the
Agreement as amended by this Amendment.
(e) This Amendment will be binding upon and inure to the benefit of
Borrower and Bank and their respective successors and assigns.
(f) All representations, warranties and covenants made by Borrower in
the Agreement and herein will survive the execution and delivery
of this Amendment.
(g) This Amendment will, in all respects, be governed and construed
in accordance with the laws of the State of Ohio.
(h) This Amendment may be executed in one or more counterparts, each
of which will be deemed an original and all of which together
will constitute one and the same instrument.
(i) Borrower authorizes any attorney of record to appear for it in
any court of record in the State of Ohio, after an Obligation
becomes due and payable whether by its terms or upon default,
waives the issuance and service of process, releases all errors
and rights of appeal, and confesses a judgment against it in
favor of the holder of such Obligation, for the principal amount
of such Obligation plus interest thereon., together with court
costs and attorneys' fees. Stay of Execution and all exemptions
are hereby waived. Borrower also agrees that the attorney acting
for Borrower as set forth in this paragraph may be compensated by
Bank for such services, and Borrower waives any conflict of
interest caused by such representation and compensation
arrangement. If an Obligation is referred to an attorney for
collection, and the payment is obtained without the entry of a
judgment, the obligors will pay to the holder of such Obligation
its attorneys' fees.
5. Guarantor. The undersigned acknowledges and agrees to be
bound by the terms and provisions of only Section 5.2 of the Agreement and
Section 2 of this Amendment and to enter into and execute an Amended and
Restated Unconditional Guaranty of Payment and Performance ("Guaranty") in the
form attached hereto as Exhibit 5. 1. Borrower shall cause any and all other
subsidiary entities of Borrower which are created or acquired after the date
hereof to enter into and execute a Guaranty.
AMERICAN LEGAL PUBLISHING
CORPORATION
By: /s/Si Xxxxx
-------------
Its: Chairman
[Additional signatures appear on next page]
IN WITNESS WHEREOF, Borrower and Bank have executed this
Agreement by their duly authorized officers as of the date first above written.
BANCINSURANCE CORPORATION
By: /s/Xxxx X. Xxxxx
----------------------------------------
Its: President
FIFTH THIRD BANK, CENTRAL OHIO
By: /s/Xxxxxxx Xxxxxxxx
----------------------------------------
Its: Assistant Vice President
WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT
OR ANY OTHER CAUSE.
EXHIBIT 2.1
AMENDED AND RESTATED
REVOLVING NOTE
$10,000,000
Columbus, Ohio
January 25, 1993
First Amendment and Restatement November 5, 1993
Second Amendment and Restatement October 19, 1994
Third Amendment and Restatement July 19, 0000
Xxxxxx Xxxxxxxxx and Restatement June 4, 1996
Fifth Amendment and Restatement July 17, 1997
Sixth Amendment and Restatement September 1, 1998
Seventh Amendment and Restatement November 24, 1999
Eighth Amendment and Restatement December 11, 2000
Ninth Amendment and Restatement July 1, 2002
Tenth Amendment and Restatement October 20, 2003
On June 30, 2007 BANCINSURANCE CORPORATION, an Ohio corporation
("Borrower"), for value received, hereby promises to pay to the order of FIFTH
THIRD BANK, CENTRAL OHIO, an Ohio banking corporation (the "Bank"), at its
offices, located at 00 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, in lawful money
of the United States of America and in immediately available funds, the
principal sum of Ten Million and 00/100 Dollars ($10,000,000), or such lesser
unpaid principal amount as may be advanced by Bank pursuant to the terms of the
Credit Agreement, dated January 25, 1993, by and between Borrower and Bank, as
amended by the First Amendment thereto, dated November 5, 1993, the Second
Amendment thereto dated October 19, 1994, the Third Amendment thereto dated
November 24, 1999, the Fourth Amendment thereto dated December 11, 2000, the
Fifth Amendment thereto dated July 1, 2002 and the Sixth Amendment thereto dated
of even date herewith, as the same may be further amended from time to time (the
"Agreement") together with interest on the unrepaid advances of said principal
sum from date of disbursement by Bank and with all other charges herein
provided, payable in cash, at the rates and in the manner hereinafter set forth.
1. INTEREST RATE.
1.1 The principal balance outstanding hereunder, will bear
interest from the date of the first advance until paid at an annual floating
rate of interest equal to 0.75% less than the Prime Rate (as defined below) of
Bank in effect from time to time.
1.2 The interest rate charged hereunder will change automatically
upon each change in the Prime Rate. Accrued and unpaid interest will be due and
payable quarterly commencing on the first day of October, 2003 and continuing on
the first (1st) day of each January, April, July and October thereafter during
the term hereof On June 30, 2007, all outstanding principal and all accrued and
unpaid interest will be due and payable. Interest will be calculated based on a
360 day year and charged for the actual number of days elapsed, and will be
payable on the first day of each calendar quarter. After maturity, whether by
acceleration or otherwise, this Note will bear interest (computed and adjusted
in the same manner, and with the same effect, as interest hereon prior to
maturity) payable on demand, at a rate per annum equal to the Default Rate,
until paid, and whether before or after the entry of judgment hereon.
1.3 The Prime Rate means the rate of interest per annum. announced
to be its Prime Rate from time to time by Bank at its principal office Columbus,
Ohio whether or not Bank will at times lend to borrowers at lower rates of
interest, or if there is no such Prime Rate, then its base rate or such other
rate as may be substituted by Bank for the Prime Rate.
2. General Terms.
2.1 The principal amount of each loan made by Bank under this Note
and the amount of each prepayment made by Borrower under this Note will be
recorded by Bank in the regularly maintained data processing records of Bank.
The aggregate unpaid principal amount of all loans set forth in such records
will be presumptive evidence of the principal amount owing and unpaid on this
Note. However, failure by Bank to make any such entry will not limit or
otherwise affect Borrower's obligations under this Note or the Agreement.
2.2 All payments received by Bank under this Note will be applied
first to payment of amounts advanced by Bank on behalf of Borrower or which may
be due for insurance, taxes and attorney's fees or other charges to be paid by
Borrower pursuant to the Agreement and the Loan Documents (as defined in the
Agreement), then to accrued interest on this Note, then to principal which will
be repaid in the inverse order of maturity.
2.3 This Note is the Revolving Note referred to in the Agreement, and
is entitled to the benefits, and is subject to the terms of the Agreement.
Capitalized terms used, but not otherwise defined herein will have the meanings
attributed thereto in the Agreement. The principal of this Note is prepayable in
the amounts and under the circumstances, and its maturity is subject to
acceleration upon the terms, set forth in the Agreement. Except as otherwise
expressly provided in the Agreement, if any payment on this Note becomes due and
payable on a day other than one on which Bank is open for business (a "Business
Day"), the maturity thereof will be extended to the next Business Day, and
interest will be payable at the rate specified herein during such extension
period.
2.4 After the occurrence of an Event of Default, all amounts of
principal outstanding as of the date of the occurrence of such Event of Default
will bear interest at the Default Rate, in Bank's sole discretion, without
notice to Borrower. This provision does not constitute a waiver of any Events of
Default or an agreement by Bank to permit any late payments whatsoever.
2.5 In no event will the interest rate on this Note exceed the highest
rate permissible under any law which a court of competent jurisdiction will, in
a final determination, deem applicable hereto. In the event that a court
determines that Bank has received interest and other charges under this Note in
excess of the highest permissible rate applicable hereto, such excess will be
deemed received on account of, and will automatically be applied to reduce the
amounts due to Bank from Borrower under this Note, other than interest, and the
provisions hereof will be deemed amended to provide for the highest permissible
rate. If there are no such amounts outstanding, Bank will refund to Borrower
such excess.
2.6 Borrower and all endorsers, sureties, guarantors and other persons
liable on this Note hereby waive presentment for payment, demand, notice of
dishonor, protest, notice of protest and all other demands and notices in
connection with the delivery, performance and enforcement of this Note, and
consent to one or more renewals or extensions of this Note.
2.7 This Note is being executed and delivered in substitution for
the Amended and Restated Revolving Note, most recently dated July 1, 2002, in
the principal amount of $ 13,000,000 and is not delivered in repayment hereof
2.8 This Note may not be changed orally, but only by an instrument
in writing.
2.9 This Note is being delivered in, is intended to be performed
in, will be construed and enforceable in accordance with, and be governed by the
internal laws of, the State of Ohio without regards to principles of conflict of
laws. Borrower agrees that The State and Federal courts in Franklin County, Ohio
or any other court in which Bank initiates proceedings will have exclusive
jurisdiction over all matters arising out of this Note, and that service of
process in any such proceeding will be effective if mailed to Borrower at its
address described in the Notices section of the Agreement. BORROWER HEREBY
WAIVES THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE.
2.10 Borrower authorizes any attorney of record to appear for it in
any court of record in the State of Ohio, after an Obligation becomes due and
payable whether by its terms or upon default, waives the issuance and service of
process, releases all errors and rights of appeal, and confesses a judgment
against it in favor of the holder of such Obligation, for the principal amount
of such Obligation plus interest thereon, together with court costs and
attorneys' fees. Stay of Execution and all exemptions are hereby waived.
Borrower also agrees that the attorney acting for Borrower as set forth in this
paragraph may be compensated by Bank for such services, and Borrower waives any
conflict of interest caused by such representation and compensation arrangement.
If an Obligation is referred to an attorney for collection, and the payment is
obtained without the entry of a judgment, the obligors will pay to the holder of
such Obligation its attorneys' fees.
WARNING - BY SIGNING THIS PAPER, YOU GIVE IT UP YOUR RIGHT TO NOTICE AND COURT
TRIAL, IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT
OR ANY OTHER CAUSE.
BANCINSURANCE CORPORATION
By: /s/Xxxx X. Xxxxx
-----------------------------
Its: President
EXHIBIT 5.1
AMENDED AND RESTATED
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
FOR VALUE RECEIVED and for the purpose of inducing FIFTH THIRD BANK,
CENTRAL OHIO, an Ohio banking corporation, having an office at 00 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxx 00000 ("Lender"), to make a loan in the amount of TEN
MILLION AND 00/DOLLARS ($10,000,000.00) to BANCINSURANCE CORPORATION, an Ohio
corporation, having an office at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000
("Borrower"), from which the undersigned expects to derive direct monetary
benefit, the undersigned AMERICAN LEGAL PUBLISHING CORPORATION, an Ohio
corporation ("Guarantor"), whose tax identification number is 00-0000000, agrees
for the benefit of Lender as follows:
1. Guarantor unconditionally and absolutely guarantees to Lender the full
and prompt payment, whether at stated or accelerated maturity or otherwise, of
any and all principal, interest, damages, losses, costs, charges, expenses and
liabilities, whether fixed or contingent (collectively the "Indebtedness") and
the complete, faithful and punctual performance of any and all other obligations
(collectively the "Obligations") of Borrower to Lender under the terms and
conditions of (a) the Credit Agreement, dated January 25,1993, by and between
Borrower and Lender as amended by the First Amendment thereto, dated November 5,
1993, the Second Amendment thereto dated October 19, 1994, the Third Amendment
thereto dated November 24, 1999, the Fourth Amendment thereto dated December 11,
2000, the Fifth Amendment thereto dated July 1, 2002 and the Sixth Amendment
thereto dated of even date herewith, as the same may be further amended from
time to time (the "Loan Agreement") pertaining to such loan; (b) the Amended and
Restated Revolving Note, of even date herewith, made by Borrower to Lender, in
the principal amount of TEN MILLION AND OO/DOLLARS ($10,000,000.00) and any and
all renewals, amendments, modifications, reductions and extensions thereof and
substitutions therefor (collectively the "Note") evidencing such loan; and (c)
any other instrument, document, certificate or affidavit heretofore, now or
hereafter given by Borrower evidencing or securing all or any part of the
foregoing (the same, together with the Loan Agreement and the Note, collectively
the "Loan Documents").
2. Guarantor agrees that, if any of the Indebtedness shall not be paid or
any of the Obligations shall not be performed by Borrower in accordance with the
terms and conditions of the Loan Documents, Guarantor shall immediately so pay
such indebtedness and so perform such Obligations and the same shall become the
direct and primary indebtedness and obligation of Guarantor. Guarantor shall be
liable for the payment of the indebtedness and the performance of the
Obligations as fully and to the same effect as if Guarantor was the maker or
principal obligor under the Loan Documents.
3. The liability of Guarantor under this Amended and Restated
Unconditional Guaranty of Payment and Performance (the "Guaranty') is
independent of the indebtedness and Obligations of Borrower, and a separate
action or actions may be brought and prosecuted against Guarantor regardless of
whether any action is brought against Borrower or whether Borrower be joined in
any such action or actions. There shall be no duty or obligation of Lender to
exhaust any remedy in law or in equity against Borrower or any security before
bringing suit or instituting proceedings of any kind against Guarantor.
4. The liability of Guarantor hereunder is joint and several with all
others, if any, guaranteeing payment of the indebtedness and performance of the
Obligations (the "Other Guarantors"), and Guarantor may be sued without first,
contemporaneously or subsequently, suing any or all of the Other Guarantors.
Further, Lender may compromise with any or all of the Other Guarantors for less
than all of the liability of Guarantor hereunder and release any or all of the
Other Guarantors from all further liability, without impairing the right of
Lender to enforce the liability hereunder of Guarantor.
5. Guarantor represents that, at the time of the execution and delivery of
this Guaranty, nothing exists to impair the liability of Guarantor hereunder or
the immediate effectiveness of this Guaranty.
6. The liability of Guarantor hereunder shall continue until full payment
of the indebtedness and full performance of the Obligations, it being the
intention hereof that Guarantor shall remain liable for the payment of the
indebtedness and for the performance of the Obligations notwithstanding any act,
omission or event which might, but for the provisions hereof, otherwise operate
as a legal or equitable discharge of Guarantor. Without limiting the generality
of the foregoing, the liability of Guarantor hereunder shall not be affected or
impaired on account of the following events:
a. any execution of any guaranty by any of the Other Guarantors,
whether now or hereafter, or any invalidity or enforceability of any
such guaranty;
b. any impairment, modification, release, discharge or limitation
of liability of Borrower or any of the Other Guarantors, or any stay of
lien enforcement proceedings against any of the same or their
respective property, resulting from any receivership, insolvency,
bankruptcy, dissolution, merger, reorganization or other similar
proceeding under any present or future provision of the United States
Bankruptcy Code or any other similar federal or state law or under the
decision of any court;
c. any voluntary or involuntary liquidation, sale or other
disposition of all or substantially all of the assets of Borrower;
d. any determination that Borrower is not liable for the payment
of the indebtedness or the performance of the Obligations because the
act creating the indebtedness or Obligations is ultra xxxxx, because
the officers or persons creating the indebtedness or Obligations acted
in excess of their authority, because of any exculpatory provision in
the Loan Documents, because of any federal or state law or decision of
any court, because of any illegality, irregularity, invalidity or
unenforceability, in whole or in part, of the Loan Documents, or
otherwise; or
e. any failure of Lender to accelerate the maturity of the
indebtedness or the Obligations upon default thereon, to preserve the
liability of any person for payment of the indebtedness or performance
of the Obligations, to take security therefor, to perfect its interest
in any security taken or to exercise or enforce, by legal proceedings
or otherwise, its rights against Borrower, any other person or any
security taken;
whether or not Guarantor shall have any notice or knowledge of any of the
foregoing. Further, no delay in exercising any right, power or privilege under
this Guaranty or the Loan Documents shall operate as a waiver of such right,
power or privilege.
7. Guarantor authorizes Lender to deal in any manner with the Indebtedness
and the Obligations and with the security of every kind and character given to
secure the payment and performance thereof, provided that the principal portion
of the indebtedness shall not be increased above the amount aforesaid without
the written consent of Guarantor, and consents to each action or omission of
Lender pursuant to such authority. Without limiting the generality of the
foregoing, Guarantor authorizes Lender, from time to time and whether one or
more times, to amend, modify or supplement any or all of the Loan Documents;
accept one or more replacement promissory notes; extend the time of payment or
maturity of or renew the indebtedness or the Obligations; waive or compromise
any term or condition contained in the Loan Documents or any right, remedy or
power thereunder, including without limitation, any condition precedent to loan
advances or any right with respect to requiring additional security; accept
additional or replacement security; or release or surrender security.
8. The liability of Guarantor hereunder and the rights of Lender hereunder
shall be reinstated and revived with respect to any amount at any time paid
against the indebtedness that thereafter is required to be restored or returned
by Lender as a result of insolvency, bankruptcy, reorganization or other similar
proceedings affecting Borrower, Guarantor, any of the Other Guarantors or any
other person, or any of the assets of the same, or as a result of any other fact
or circumstance, all as though such amount had not been paid.
9. Guarantor waives:
a. notice of acceptance of this Guaranty by Lender, of loan
advances by Lender and of presentment for payment, nonpayment or
dishonor or protest of any of the indebtedness, or any of the
indebtedness of any person or entity pledged to Lender as security for
the indebtedness or the Obligations;
b. any and all defenses, offsets and counterclaims of Borrower to
liability under the Loan Documents or of Guarantor under this Guaranty,
whether now existing or hereafter arising, it being understood and
agreed that the guarantee of Guarantor hereunder is absolute and
unconditional under any and all circumstances;
c. any duty on the part of Lender to disclose to Guarantor any
fact or facts it may now or hereafter know about Borrower, regardless
of whether Lender has reason to believe that any such facts materially
increase the risk beyond that which Guarantor intends to assume, has
reason to believe that such facts are unknown to Guarantor or has a
reasonable opportunity to communicate such facts to Guarantor, it being
understood and agreed that Guarantor is fully responsible for being and
remaining informed of the financial condition of Borrower and of all
circumstances bearing on the risk of nonpayment of the indebtedness or
nonperformance of the Obligations; and
d. until the Indebtedness has been repaid and the Obligations
have been performed, any and all rights of subrogation, contribution,
reimbursement, indemnity, exoneration, implied contract, recourse to
security or any other claim, including without limitation, any claim,
as that term is defined in the United States Bankruptcy Code and any
amendments, which Guarantor may now have or later acquire against
Borrower, against any other entity directly or contingently liable for
the payment of the indebtedness or performance of the Obligations or
against the security for the indebtedness or the Obligations, arising
from the existence or payment of the indebtedness or existence or
performance of the Obligations under this Guaranty.
10. Whether or not due Lender from Borrower, Guarantor agrees to pay to
Lender all damages, losses, costs, charges, expenses and liabilities of every
kind, nature and description suffered or incurred by Lender, including without
limitation attorneys' fees, arising in any manner out of, growing out of or
connected in any way with the enforcement of the Loan Documents or the
protection of any security created thereby, including the priority thereof, or
the enforcement of this Guaranty.
11. Guarantor subordinates any and all indebtedness of Borrower now or
hereafter owed to Guarantor to the Indebtedness and agrees that Guarantor shall
not claim any offset or other reduction of Guarantor's liability hereunder
because of any such indebtedness.
12. Guarantor shall deliver to Lender Guarantor's annually audited balance
sheets and income and expense statements within ninety (90) days after the end
of each fiscal year of Guarantor.
13. Guarantor shall not transfer any substantial assets to others for less
than fair value or in other than the ordinary course of business, without
Lender's prior written consent.
14. Nothing herein contained, nor contained in any of the other Loan
Documents, shall be construed or so operate as to require Guarantor to pay
interest in an amount or at a rate greater than the highest rate permissible
under applicable law. Should any interest or other charges paid by Guarantor
result in the computation or earning of interest in excess of the highest rate
permissible under applicable law, then any and all such excess shall be and the
same is waived by Lender, and all such excess shall be automatically credited
against and in reduction of the principal sum, and any portion of said excess
which exceeds the principal sum shall be paid by Lender to Guarantor, it being
the intent of the parties hereto that under no circumstances shall Guarantor be
required to pay interest in excess of the highest rate permissible under
applicable law. All interest paid or agreed to be paid to Lender shall, to the
extent permitted under applicable law, be amortized, prorated, allocated and
spread throughout the full period until payment in full of the indebtedness,
including the period of any renewal or extensions thereof, so that interest
thereon for such full period shall not exceed the maximum amount permitted by
applicable law. Notwithstanding anything to the contrary herein contained, in
the event that the interest rate to be charged hereunder ever exceeds the
highest rate permissible under applicable law, thereby causing the interest
accruing to be limited to such rate, then any subsequent reduction in the
interest rate to which Guarantor would otherwise be entitled shall be held in
abeyance until the total amount of interest accrued equals the amount of
interest which would have accrued had the interest rate not been limited to the
highest rate permissible under applicable law.
15. Any notice required or permitted to be given hereunder shall be in
writing. If mailed by first class United States mail, postage prepaid,
registered or certified with return receipt requested, then such notice shall be
effective upon its deposit in the mails. Notice given in any other manner shall
be effective only if and when received by the addressee. For purposes of notice,
the addresses of Guarantor and Lender shall be as set forth below; provided
however, that either party shall have the right to change such party's address
for notice hereunder to any other location within the continental United States
by the giving of thirty (30) days' written notice to the other party.
If to Guarantor: American Legal Publishing Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
ATTN: Si Xxxxx, Chairman
with a copy to: Bancinsurance Corporation
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
ATTN: Xxxx X. Xxxxx, President
If to Lender: Fifth Third Bank
Corporate Banking Division
00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Vice President
16. Whenever any amount is payable to Lender hereunder, Lender shall have
the right to set off such amount against amounts owing to Guarantor by Lender,
whether or not then due and payable, and against all other funds or property of
such Guarantor on deposit with or otherwise held in the custody of Lender, all
without notice to or demand on Guarantor, such notice and demand being waived.
17. All rights and remedies of Lender are cumulative and not alternative.
If any provision or any part of any provision contained in this Guaranty shall
for any reason be held or deemed to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any
other provision or remaining part of the affected provision of this Guaranty,
and this Guaranty shall be construed as if such invalid, illegal or
unenforceable provision or part thereof had never been contained herein, and the
remaining provisions of this Guaranty shall remain in full force and effect.
18. Guarantor agrees that this Guaranty shall inure to the benefit of and
may be enforced by Lender or its endorsees, transferees, successors and assigns,
and shall be binding upon and enforceable against Guarantor and Guarantor's
legal representatives, heirs, successors and assigns. This Guaranty may be
assigned by Lender in whole or in part.
19. This Guaranty is executed and delivered by Guarantor at Columbus,
Franklin County, Ohio and is to be governed by and construed in accordance with
the laws of the State of Ohio. Guarantor consents to, and by execution of this
Guaranty submits to, the personal jurisdiction of the Court of Common Pleas of
Franklin County, Ohio and the United States District Court sitting in Columbus,
Ohio for the purposes of any judicial proceedings which are instituted for the
enforcement of this Guaranty. Guarantor agrees that venue is proper in either of
said courts.
20. This Guaranty is being executed and delivered in substitution for the
Unconditional Guaranty of Payment and Performance delivered by Guarantor to
Lender dated July 1, 2002 and is not delivered in satisfaction of the
obligations thereunder. This is the entire agreement and there are no other oral
or written agreements and no understandings affecting the terms hereof This
Guaranty may be modified only by subsequent written agreement executed by
Guarantor and Lender.
21. Guarantor authorizes any attorney-at-law to appear in any court of
record in the State of Ohio or in any other state or territory of the United
States at any time after this Guaranty or the payment of the indebtedness or the
performance of the Obligations becomes due, whether at stated maturity,
accelerated maturity or otherwise, to waive the issuing and service of process
and to confess judgment against Guarantor in favor of Lender for the amount due,
together with interest, expenses, the costs of suit and reasonable counsel fees,
and thereupon to release and waive all errors, rights of appeal and stays of
execution. Such authority shall not be exhausted by one exercise, but judgment
maybe confessed from time to time as any sums and/or costs, expenses or
reasonable counsel fees shall be due, by filing an original or a photostatic
copy of this Guaranty.
LENDER, BY ACCEPTANCE OF THIS GUARANTY, AND GUARANTOR HEREBY MUTUALLY,
VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVE FOR THE BENEFIT OF THE OTHER
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, IN CONNECTION WITH, RELATED TO,
OR INCIDENTAL TO THIS GUARANTY OR THE LOAN DOCUMENTS, THE TRANSACTIONS RELATED
THERETO OR THE RELATIONSHIP ESTABLISHED THEREBY. THIS PROVISION IS A MATERIAL
INDUCEMENT TO LENDER AND GUARANTOR TO ENTER INTO THIS TRANSACTION. IT SHALL NOT
IN ANY WAY AFFECT, WAIVE, LIMIT, AMEND OR MODIFY LENDER'S ABILITY TO PURSUE ITS
REMEDIES INCLUDING, BUT NOT LIMITED TO, ANY CONFESSION OF JUDGMENT OR COGNOVIT
PROVISION CONTAINED IN THIS GUARANTY OR THE LOAN DOCUMENTS.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed as of the 20th day of October, 2003.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
AMERICAN LEGAL PUBLISHING
CORPORATION, an Ohio corporation
By: /s/Si Xxxxx
--------------------------------
Its: Chairman
