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EXHIBIT 10
MATERIAL CONTRACTS
November 6, 1995
Xx. Xxxxxxx X. Xxxxxxx
Resource General Corporation
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Dear Xxxxx:
This letter shall set out the terms and conditions under which Star Bank, N.A.
(hereafter referred to as the "Bank") agrees to loan Resource General
Corporation and PH Hydraulics and Automation, Inc. (hereafter collectively
referred to as the "Company") Two Million Two Hundred Fifty Thousand Dollars
($2,250,000.00) under this Revolving Credit/Term Loan Agreement (the
"Agreement"). The purpose of this loan is to support short-term working capital
and to refinance existing Bank One debt.
THE TERM LOAN
Subject to there being no event of default (or circumstance which would, with
the passage of time, become an event of default), the Bank agrees to lend the
Company $500,000 from the date of this Agreement through November 6, 2000 (the
"Maturity Date"). This loan will be evidenced by a promissory note (the "Note").
The Note shall amortize in 60 consecutive equal payments of $8,333.33 plus
interest beginning December 6, 1995 and monthly thereafter. A final payment for
any balance outstanding shall be made on the Maturity Date.
The Note shall bear interest at 1.0% over the Bank's prime rate (the "Prime
Rate"). The interest rate will be reduced by one-quarter of one percent [0.25%]
each year-end beginning at December 31, 1996 and at December 31, 1997, if all
financial covenants as described in this Agreement are met and maintained. The
Prime Rate is the rate announced as such from time to time by the Bank. The
Prime Rate is determined solely by the Bank pursuant to market factors and its
own operating needs, and is not necessarily the Bank's best or most favorable
rate for commercial or other loans. The Prime Rate is currently 8.75%. The
interest rate on the Note shall be adjusted on the effective date of any change
in the Bank's Prime Rate. The interest shall accrue in arrears and be payable
beginning December 6, 1995 and monthly thereafter and on the Maturity Date.
THE REVOLVING CREDIT
Subject to there being no event of default (or circumstance which would, with
the passage of time become an event of default) the Bank agrees to make
revolving credit loans to the Company (as described below) from the date of this
Agreement through the earlier of: a) a demand for payment in accordance with the
terms of a revolving promissory note (the "Revolving Note"); or b) November 30,
1996 (the "Maturity Date").
Under the Revolving Note, the Company may borrow, repay, and reborrow up to the
lesser of: a) 80% of accounts receivable acceptable to the Bank which are
outstanding less than 90 days from the date of invoice, plus 50% of raw
materials, plus 35% of work-in-process (up to a maximum work-in-process advance
of $250,000) less a reserve amount of $350,000, the reserve amount will be
reduced by the monthly principal payments as further described in the term loan
section above (the sum of which shall be called the "Amount Available"); or b)
$1,750,000. Should the total loan amount outstanding at
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any time exceed the Amount Available, the Company shall, upon notification,
reduce the amount outstanding to an amount that is less than or equal to the
Amount Available.
The Revolving Note shall bear interest at 1.0% over the Bank's prime rate (the
"Prime Rate"). If the revolving credit facility is renewed at the maturity date,
the interest rate will be reduce by one-quarter of one percent [0.25%] each
year-end beginning at December 31, 1996 and at December 31, 1997, if all
financial covenants as described in this Agreement are met and maintained. The
Prime Rate is the rate announced as such from time to time by the Bank. The
Prime Rate is determined solely by the Bank pursuant to market factors and its
own operating needs, and is not necessarily the Bank's best or most favorable
rate for commercial or other loans. The Prime Rate is currently 8.75%. The
interest rate on the Revolving Note shall be adjusted on the effective date of
any change in the Bank's Prime Rate. Interest shall accrue in arrears and be
payable beginning November 30, 1995 and monthly thereafter and on the Maturity
Date.
REPRESENTATIONS & WARRANTIES
To induce the Bank to enter into this Agreement and to agree to make the loans
described herein, the Company represents and warrants that:
(A) Corporate Existence. It is a corporation duly existing under the laws
of the State of Ohio, is qualified to do business in all states where
failure to be so qualified would have a material adverse effect on the
Company, and has all requisite power and authority to own its property
and carry on its business as now being conducted.
(B) Borrowing Authorization. The execution by the Company and the delivery
and performance of this Agreement, the Note(s), and other documents
connected to the loans described herein have been authorized by
necessary corporate action and will not or 3) any agreement binding on
the Company.
(C) Financial Statements. Its interim financial statements dated September
30, 1995 (a copy of which have been previously furnished to the Bank)
have been prepared in conformity with generally accepted accounting
principles consistently applied, and fairly present the financial
condition of the Company and its operation as of the date of the
statements, and since such date there has been no material adverse
change in its financial condition.
(D) Actions Pending. There are no legal actions pending or threatened
against or affecting the Company before any court or agency, or any
contingent liabilities that are not provided for in the financial
statements referred to in subsection (C) Financial Statements above.
(E) Liens. None of the assets of the Company are subject to any mortgage,
pledge, security interest, lien, or other encumbrance except for those
noted in the financial statements referred to in subsection (C)
Financial Statements.
(F) Environmental Matters. All operations and property of the Company are
in full compliance with all federal, state, and local statutes, rules,
and regulations relating to air and water pollutants and hazardous
waste disposal. There is no judicial or administrative proceeding
pending or threatened against or affecting the Company with respect to
such environmental matters.
(G) Compliance. The Company is in compliance in all material respects with
all statutes, rules, and regulations applicable to it. No default (or
event which with notice or lapse of time, or both, would constitute a
default) exists under any agreement or instrument for borrowed money to
which Company is a party or pursuant to which any property of Company
is encumbered.
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(H) Liabilities. All taxes, assessments, and other liabilities which are
due have been paid in full and in a timely manner, except for those
taxes and assessments which the Company is contesting in good faith and
with respect to which the Company has taken proper steps to perfect its
appeal and which have not resulted in liens on the Company's property
which materially diminishes the value of the property.
COLLATERAL
All obligations of the Company to the Bank under this Agreement and the Note(s)
shall be secured by the following (collectively called the "Collateral"):
(A) A security interest in the Company's accounts receivable, inventory,
machinery, equipment, furniture, fixtures, furnishings, and general
intangibles, now owned or hereafter acquired, their proceeds (cash or
non-cash) and any insurance proceeds related thereto, all to be
evidenced by the Bank's standard Security Agreement.
(B) An assignment of insurance in the amount of $500,000 on the life of
Xxxxxxx X. Xxxxxxx.
(C) All Company debt to be cross collateralized and cross defaulted to all
existing Bank debt.
The Collateral and all documentation with respect thereto shall be in a form
satisfactory to the Bank, and the Company agrees to execute any and all
documents necessary to assure the protection, perfection, and/or enforcement of
the Bank's security interest in the Collateral.
COVENANTS
In consideration of the Bank's promise to make the loans described herein, the
Company agrees that, from the date of this Agreement until the Note(s) are paid
in full, it shall:
(A) Financial Statement. Furnish the Bank: 1) a copy of the Company's
Audited financial statements, prepared in conformity with generally
accepted accounting principles applied on a basis consistent with the
preceding years by independent certified public accountants acceptable
to the Bank within 90 days of the Company's fiscal year end; 2) a copy
of its unaudited financial statements, similarly prepared, in a form
satisfactory to the Bank within 30 days of the end of each of its
fiscal month; and 3) a copy of the finalized corporate tax return and
supporting schedules to the Bank within 270 days of the company's
fiscal year end.
(B) Periodic Reports. Provide the Bank 1) an aging of accounts receivable,
a work in process breakdown and the accounts payable aging in a form
satisfactory to the Bank within 30 days of the end of each of the
Company's fiscal month; 2) a calculation of the Amount Available as
presented by the borrowing formula described above and a "no- default"
certification signed by an authorized officer of the Company within 30
days of the end of each of its fiscal month; and 3) other reports and
information as the Bank may reasonably request.
(C) Insurance. Maintain insurance on all real and personal property with
carriers acceptable to the Bank in an amount sufficient to repay the
outstanding balance of all Bank loans and against hazards and
liabilities as is common with other companies in similar situations.
The policies shall show the Bank as "name insured" and "loss payee."
The Company shall provide the Bank with certificates of insurance or
other satisfactory evidence upon request.
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(D) Taxes. Pay all taxes, assessments, and other liabilities when due,
except for those which are contested in good faith.
(E) Notice. Give the Bank prompt notice of any: (i) default of this or any
other Agreement or contract under which the company is liable; (ii)
environmental or labor dispute; (iii) lawsuit filed naming the Company
as a defendant; (iv) reportable event under ERISA; or (v) material
change in the Company's business prospects or financial condition.
(F) Corporate Existence and Status. Maintain its corporate existence and
remain in good standing under the laws of each jurisdiction where the
Company is duly qualified to conduct its business.
(G) Maintenance of Property. Maintain Company property in good condition
and repair, and not commit or permit any action that may impair the
value of the property or the Bank's Collateral.
(H) Current Ratio. Maintain a current ratio, defined as Current Assets
divided by Current Liabilities (as defined below) of at least 1.0:1
beginning with the fiscal year ending December 31, 1995 and 1.2:1
beginning with the fiscal year ending December 31, 1996 and thereafter.
"Current Assets" shall mean any asset that is reasonably expected to be
converted to cash or sold within the next operating cycle or one-year
period, whichever is longer. Current Assets shall exclude any amounts
owed to the Company by owners, partners, shareholders, or officers of
the Company regardless of the date conversion to cash or sale is
expected. "Current Liabilities" shall mean any obligation whose
liquidation is reasonably expected to occur within the next operating
cycle or one-year, whichever is longer. Current Liabilities shall
include any amounts owed by the Company to owners, partners,
shareholders, or officers of the Company regardless of the expected
liquidation date.
(I) Leverage Ratio. Maintain a leverage ratio, defined as Total Liabilities
divided by Tangible Net Worth (as defined below) of not greater than
4.0:1 beginning with the fiscal year ended December 31, 1995, not
greater than 3.5:1 by the fiscal year ended December 31, 1996 and 3.0:1
by the fiscal year ended December 31, 1997 and thereafter.
(J) Cash Flow Coverage Ratio. Maintain a cash flow coverage ratio of at
least 1.25:1 at all times. This ratio will be tested on a quarterly
basis. "Cash Flow Coverage" ratio shall be calculated as follows:
Net Income + Non-Cash Charges + Interest Expense - Dividends
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Current Portion of Long Term Debt + Interest Expense
(K) Tangible Net Worth. Not permit its tangible net worth to be less than
$775,000 as of December 31, 1995, $925,000 as of December 31, 1996 and
$1,125,000 as of December 31, 1997 and for each fiscal year thereafter.
"Tangible Net Worth" shall mean, as of any date, the sum of the
Company's total equity plus debts subordinated to the Bank minus any
intangible assets. All financial terms in this Agreement shall have the
meanings given them under generally accepted accounting principles.
(L) Indebtedness. Not incur or permit to exist any indebtedness, other than
that indebtedness which existed on balance sheet as of September 30,
1995, except: (i) the borrowings evidenced by this Agreement; (ii)
favorable short-term unsecured trade credit granted in the ordinary
course of business.
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(M) Liens. Not create or permit to exist any mortgage, pledge, security
interest, or other encumbrance with respect to any assets now owned or
here-after acquired other than that indebtedness which existed on
balance sheet as of September 30, 1995, except for (i) liens created in
favor of the Bank hereunder; or (ii) purchase money interests created
in connection with the acquisition of property acquired after the date
of this Agreement which attaches specifically to the property acquired.
(N) Guaranties. Not guaranty any obligation or indemnify any other person
or enterprise except for the personal liability from the Company's own
officers', directors', or employees' own actions on behalf of the
Company.
(O) Merger, Sale or Transfer of Assets. Not be a party to any merger,
consolidation, transfer or reorganization without the consent of the
bank (including, but not limited to, the purchase of all or
substantially all of the equity or assets of any other enterprise). Not
to transfer any assets from the company's to Perry's Environmental
Recycling, Inc.. It is the Banks understanding the Perry's
Environmental Recycling, Inc. is in the process of being dissolved.
(P) Investments. Not invest in, loan, or make advances to any other
enterprises, except for (i) obligations of the United States Treasury
and agencies thereof, (ii) commercial paper maturing within one-year
and rated "A-1/P-1 or better," or (iii) Certificates of Deposit of the
Bank.
(Q) Restricted Payments. Do not declare nor pay any dividend to
shareholders unless all financial covenants are in compliance. The land
held in Perry County and Franklin County will not be held as
collateral, but if and when the property is sold, all proceeds must be
applied against the term loan. Said properties must remain free of any
liens during the term of all credit facilities.
(R) Depository Accounts. Star Bank shall be the primary depository bank of
Borrowers. With in 90 days of closing a wholesale lock box account will
be established to handle accounts receivable collection. The revolving
line of credit will be then be settled daily via the banks business
checking plus line of credit.
(S) Negative Covenants. The Companies shall not; 1) change the type or
character of its business; 2) not loan any money to or to guarantee any
obligation of any other persons, firm or corporation; and 3) shall not
change any key management personnel without first notifying the Bank
and providing and adequate replacement within 30 days.
(T) Subordination. All notes/accounts payable due to shareholders shall be
subordinated to the Bank. All subordinated debtors shall sign the banks
standard subordination agreement.
(U) Waiver. Any variance from these covenants shall be permitted only with
the prior written consent and/or waiver of the Bank. Any such waiver
shall not preclude the exercise of any power or right under this
Agreement by the Bank.
CLOSING CONDITIONS
The obligation of the Bank to make the loans described by this Agreement is
subject to the satisfaction of each of the following conditions:
(A) Resolutions. The Company shall have delivered to the Bank a copy of the
resolutions of the Company's Board of Directors authorizing the loans
described herein and the execution and delivery of this Agreement, the
Note(s), and other documents the Bank deems necessary for these loans,
certified by an appropriate officer of the Company.
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(B) Other Documents; Inspection. The Company shall have delivered to the
Bank such other documents as the Bank may request prior to the date of
the initial loan. The Bank or its designated representative shall have
the continuing right to inspect and review all the Company's records,
documents, and assets, whether or not directly related to the Company's
obligations hereunder.
(C) Default. Before and after giving effect to the loan(s) described
herein, no event of default (as defined below) or event which would
with the passage of time mature into an event of default shall have
occurred and/or be continuing.
(D) Warranties. Before and after giving effect to the loan(s) described
herein, the representations and warranties noted above shall be true
and correct on the date of this Agreement.
(E) Fees and Expenses. The Company agrees to pay the Bank a one-time fee of
$2,000.00 plus any out-of-pocket expenses incurred by the Bank
(including reasonable attorneys' fees, legal expenses, filing fees,
etc.) in entering into and closing this Agreement.
EVENTS OF DEFAULT
Upon the occurrence of any of the following events and following a five business
day prior written notice to the Company, and an additional five business day
default cure period, the Bank may declare the Note(s) due and immediately
payable and shall have all rights to realize on the collateral. To the extent
the maximum Amount Available on the revolving credit facility is not being
utilized by the Company, the Bank may upon such declaration of default terminate
any unused balance:
(A) Non-payment of principal or interest prescribed herein when due or when
notice of such non-payment is sent to the Company by the Bank, or any
default, demand, or acceleration under any Note or related instrument
concerning the Collateral; or
(B) Non-payment of principal or interest on any other borrowed money
obligation when due or the holder of such obligation declares the
obligation due prior to its stated maturity unless the obligation is
disputed in good faith; or
(C) Any representation or warranty of the Company in this or any other loan
document is false; or
(D) The Company violates any covenant or condition of this or any other
loan documentation; or
(E) The Company is unable to pay its business debts as they become due or
the Company's consolidated financial statement indicates an insolvency
or deficit net worth; or
(F) The Company applies for the appointment of a trustee or receiver of any
part of the assets of the Company or commences any proceedings relating
to Borrower under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution, or other liquidation law
of any jurisdiction; or
(G) Any such application, if filed, or any such proceedings are commenced
against the Company, and the Company indicates its approval, consent,
or acquiescence; or an order is entered appointing such trustee or
receiver, or adjudicating the Company bankrupt or insolvent, or
approving the petition in any such proceedings, and such order remains
in effect for thirty (30) days; or
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(H) A material part of the Company's operations shall cease for a period of
thirty (30) days, other than temporary or seasonal cessations which are
simultaneously experienced by other companies in the Company's line of
business (which, if continued, would not have a material adverse effect
on the Company's operations or financial conditions); or,
(I) If, in the reasonable opinion of the Bank, there has been a material
adverse change in the financial affairs or operating condition of the
Company or in the value of the Collateral which, in the reasonable
judgment of Bank, materially imperils the Company's ability to repay or
secure its obligations to the Bank under this Agreement.
OTHER DOCUMENTATION
The terms hereof requiring five day prior written notice and an additional five
day opportunity to cure prior to the Bank's having any right to declare the
Note(s) due and payable, or any right to pursue the collateral following the
occurrence of event of default, shall also be applicable with respect to any and
all events of default specified in any and all other agreements, documents and
instruments, as hereafter may be modified or amended, executed as of the date
hereof in connection with this facility.
LAW/JURISDICTION
This Agreement, the loans, and the Note(s) shall be deemed made in Ohio, and all
the rights and obligations of the parties hereunder shall in all respects be
governed by and construed in accordance with the laws of the State of Ohio,
including all matters of construction, validity, and performance. Without
limitation on the ability of the Bank to exercise all its rights as to the
Collateral security for any loan or note, or to initiate and prosecute actions
for repayment in any applicable jurisdiction, Bank and Company agree that any
action or proceeding commenced by or on behalf of the parties relating to this
Agreement, the loans, or the Note(s) shall be commenced and maintained
exclusively in courts of applicable jurisdiction located in Franklin County,
Ohio. This document memorializes the entire Agreement between parties, and any
amendment to this Agreement, may only be made in writing and signed by all
parties.
WARNING - BY SIGNING THIS PAPER, YOU GIVE UP YOUR RIGHTS TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME, A COURT JUDGEMENT 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. (SEC. 2323.13 O.R.C.)
Accepted this ______ day of November, 1995
RESOURCE GENERAL CORPORATION
By:________________________ Its: Acting President
Xxxxxx X. Xxxx
By:________________________ Its: Vice President of Operations
Xxxxxxx X. Xxxxxxx
PH HYDRAULICS AND AUTOMATION, INC.
By:______________________ Its: President
Xxxxxxx X. Xxxxxxx
STAR BANK, N.A.
________________________
Xxxxxxx X. Xxxxxx
Assistant Vice President
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