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EXHIBIT 4(a)
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
among
MPW INDUSTRIAL SERVICES GROUP, INC.
and its Subsidiaries and Affiliates Named Herein,
BANK ONE, NA,
NATIONAL CITY BANK OF COLUMBUS
and
BANK ONE, NA,
as Agent
Dated as of December 10, 1997
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TABLE OF CONTENTS
(This Table of Contents is not part of this Agreement
and is only for convenience of reference.)
ARTICLE I
DEFINITIONS
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Section 1.1 Definitions.............................................1
Section 1.2 Use of Terms...........................................16
Section 1.3 Cross References; Headings.............................17
Section 1.4 Accounting Terms.......................................17
ARTICLE II
AMOUNT AND TERMS OF COMMITMENTS, REVOLVING CREDIT LOANS
-------------------------------------------------------
AND TERM LOANS
--------------
Section 2.1 Commitments............................................17
Section 2.2 Notes..................................................18
Section 2.3 Notice of Loan Borrowing; Funding of Loans.............19
Section 2.4 Conversion and Continuation Options....................21
Section 2.5 Optional Termination or Reduction of Commitments
......................................................22
Section 2.6 Termination of Commitments.............................23
Section 2.7 Interest...............................................23
Section 2.8 Fees...................................................25
Section 2.9 Prepayments............................................25
Section 2.10 General Provisions as to the Loans and Payments
and Funding of Loans..................................26
Section 2.11 Use of Proceeds........................................27
Section 2.12 Loan Administration....................................27
Section 2.13 Funding Losses.........................................27
ARTICLE III
STANDBY LETTERS OF CREDIT
-------------------------
Section 3.1 Issuance of Standby L/Cs...............................28
Section 3.2 Participation of L/Cs..................................29
Section 3.3 Further Assurances.....................................30
Section 3.4 Obligations Absolute...................................30
(i)
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ARTICLE IV
CONDITIONS OF LENDING
---------------------
Section 4.1 Conditions to Initial Transaction......................30
Section 4.2 Conditions to Each Transaction.........................33
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
Section 5.1 Good Standing and Qualification........................34
Section 5.2 Authority..............................................34
Section 5.3 Binding Agreements.....................................34
Section 5.4 Litigation.............................................34
Section 5.6 Taxes..................................................35
Section 5.7 Financial Statements...................................35
Section 5.8 Adverse Developments...................................36
Section 5.9 Existence of Assets and Title Thereto..................36
Section 5.10 Regulations S,T,U or X.................................36
Section 5.11 Compliance.............................................36
Section 5.12 Leases.................................................36
Section 5.13 Pension Plans..........................................37
Section 5.14 Investment Company; Holding Company....................37
Section 5.15 No Insolvency..........................................37
Section 5.16 Environmental Matters..................................37
Section 5.17 Accuracy of Information................................38
Section 5.18 Assets for Conduct of Business.........................38
Section 5.19 Trade Relations........................................38
Section 5.20 Contingent Obligations.................................38
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
Section 6.1 Financial Statements...................................39
Section 6.2 Certificates; Other Information........................39
Section 6.3 Payment of Obligations.................................40
Section 6.4 Maintenance of Rights, Permits, Etc; Compliance
with Law...............................................40
Section 6.5 Inspection of Property; Books and Records;
Discussions............................................40
Section 6.6 Notices................................................40
Section 6.7 Taxes..................................................41
Section 6.8 Maintenance of Property; Insurance.....................42
Section 6.9 ERISA Funding Requirements.............................42
(ii)
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Section 6.10 Indemnification........................................42
Section 6.11 Performance Under Facility Documents...................43
Section 6.12 Corporate Existence; Foreign Qualification.............43
Section 6.13 Maintenance of Business................................43
Section 6.14 Environmental Matters..................................43
Section 6.16 Change in Governing Documents..........................44
ARTICLE VII
NEGATIVE COVENANTS
------------------
Section 7.1 Mortgages and Pledges..................................44
Section 7.2 Merger, Consolidation, Sale and Acquisition of
Assets.................................................45
Section 7.3 Contingent Obligations.................................46
Section 7.4 Transactions with Affiliates...........................46
Section 7.5 Compliance with ERISA..................................46
Section 7.6 Financial Covenants....................................46
Section 7.7 Debt Restriction.......................................47
Section 7.8 Investments............................................47
Section 7.9 Limitation on Subsidiaries.............................47
Section 7.10 Change in Fiscal Year..................................47
Section 7.11 Change in Accounting Practices.........................47
Section 7.12 Sale and Leaseback.....................................47
Section 7.13 Disposing of Notes/Accounts Receivable.................48
Section 7.14 Subordinated Debt......................................48
Section 7.15 Restricted Payments....................................48
Section 7.16 Derivatives Obligations................................48
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
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Section 8.1 Events of Default; Remedies............................48
Section 8.2 Application of Proceeds................................50
ARTICLE IX
THE AGENT
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Section 9.1 Appointment............................................51
Section 9.2 Delegation of Duties...................................51
Section 9.3 Exculpatory Provisions.................................51
Section 9.4 Reliance by Agent......................................52
Section 9.5 Notice of Default......................................52
Section 9.6 Non-Reliance on Agent and Other Banks..................52
(iii)
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Section 9.7 Indemnification........................................53
Section 9.8 Bank One in Its Individual Capacity....................53
Section 9.9 Successor Agent........................................53
ARTICLE X
CHANGE IN CIRCUMSTANCES
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Section 10.1 Basis for Determining Interest Rate Inadequate or
Unfair.................................................54
Section 10.2 Illegality and Impossibility...........................54
Section 10.3 Increased Cost and Reduced Return......................55
Section 10.4 Taxes..................................................56
Section 10.5 Base Rate Loans Substituted for Affected Eurodollar
Rate Loans.............................................57
ARTICLE XI
MISCELLANEOUS
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Section 11.1 Expenses...............................................57
Section 11.2 Covenants to Survive, Binding Agreement................58
Section 11.3 Waivers................................................58
Section 11.4 Notices................................................58
Section 11.5 Severability, Entire Agreement, Effectiveness..........60
Section 11.6 Governing Law; Venue...................................60
Section 11.7 Security and Right of Setoff...........................60
Section 11.8 Amendments and Waivers.................................61
Section 11.9 Taxes and Fees.........................................61
Section 11.10 Counterparts...........................................61
Section 11.11 Effective Dat..........................................62
Section 11.12 Waiver of Jury Trial...................................62
Section 11.13 Arbitration............................................62
Section 11.14 Waiver of Subrogation..................................63
EXHIBIT A Form of Revolving Credit Loan Note
EXHIBIT B Form of Term Loan Note
SCHEDULE 5.20 Contingent Obligations
(iv)
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
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THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (the "Agreement"), dated
as of December 10, 1997, is made and entered into by and among MPW Industrial
Services Group, Inc. ("MPW Group"), MPW Industrial Services, Inc. ("MPW, Inc."),
MPW Industrial Services, Ltd. ("MPW, Ltd."), MPW Management Services Corp. ("MPW
Corp."), Weston Engineering, Inc. ("Weston"), Aquatech Environmental, Inc.
("Aquatech), ESI International, Inc., ("ESII"), and ESI-North Limited ("ESI",
which, together the foregoing entities, shall be referred to herein collectively
as the "Borrowers" and individually as a "Borrower"), Bank One, NA, a national
banking association ("Bank One"), National City Bank of Columbus, a national
banking association ("NCBC"), and Bank One, NA, as Agent, acting in the manner
and to the extent described in Article IX hereof.
BACKGROUND INFORMATION
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The Borrowers have requested that the Banks provide revolving credit
and term loans to the Borrowers, and the Banks have agreed to provide such
revolving credit and term loans, upon and subject to the terms and conditions as
hereinafter set forth.
PROVISIONS
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NOW, THEREFORE, in consideration of the provision of such revolving
credit and term loans, the agreements and covenants hereinafter contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Banks, the Agent and the Borrowers do hereby agree
as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.1 DEFINITIONS. As used herein, in any certificate, document
or report delivered pursuant to this Agreement (except as otherwise defined
herein, in such certificate, document or report), the following terms shall have
the following meanings:
"AFFILIATE" shall mean any Person which, directly or
indirectly, is in Control of, is Controlled by, or is under common Control with,
another Person.
"AGENT" shall mean Bank One in its capacity as agent for the
Banks hereunder, and its successors and assigns in such capacity.
"AGGREGATE COMMITMENT" shall mean the collective, but several,
Commitment of the Banks to make Loans to the Borrowers and issue, provide and
fund Standby L/Cs
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up to the maximum aggregate amount of $50 million, subject to the terms and
conditions of this Agreement.
"AGGREGATE REVOLVING CREDIT LOAN COMMITMENT" shall mean the
aggregate amount of the Revolving Credit Loan Commitments of the Banks.
"AGGREGATE TERM LOAN COMMITMENT" shall mean the aggregate
amount of the Term Loan Commitments of the Banks.
"AGREEMENT" shall mean this Revolving Credit and Term Loan
Agreement, as the same may be amended, modified, supplemented, extended,
restated or replaced from time to time.
"AUTHORIZED OFFICER" shall mean the chief executive officer,
the chief financial officer or the treasurer of a Borrower, as the case may be.
"AVAILABLE COMMITMENT" shall mean, at any particular time, an
amount equal to the excess, if any, of (i) the Aggregate Commitment over (ii)
the sum of (x) the aggregate unpaid principal amount at such time of all
Revolving Credit Loans made by the Bank pursuant to the terms hereof, PLUS (y)
the aggregate amount of all Term Loans made by the Bank pursuant to the terms
hereof, PLUS (z) 100% of the Dollar amount available to be drawn under
outstanding Standby L/Cs at such time.
"BANKS" shall mean Bank One, NCBC and their respective
successors and assigns, and "BANK" shall mean any one of such Banks, successors
or assigns.
"BASE RATE" shall mean, for any Base Rate Loan for any day,
the rate per annum equal to the "prime rate" established by Bank One from time
to time based on its consideration of economic, money market, business and
competitive factors, and it is not necessarily Bank One's most favored rate. In
the event Bank One shall abolish or abandon the practice of establishing its
prime rate or should the same be unascertainable, the Agent shall designate a
comparable reference rate which shall be deemed to be the Base Rate under this
Agreement and the other Facility Documents. For purposes of determining the Base
Rate for any day, the Base Rate shall change automatically without notice to the
Borrower immediately on each Business Day with each change in the Base Rate,
with any change thereto effective as of the opening of business on the day of
the change.
"BASE RATE LOAN" shall mean, at any time, any outstanding Loan
that bears interest based on the Base Rate.
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"BORROWERS" shall mean the entities described as the Borrowers
in the opening paragraph of this Agreement and their permitted successors and
assigns, and "BORROWER" shall mean any one of such Borrowers.
"BUSINESS DAY" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday or any day that
shall be in the City of Columbus, Ohio or New York, New York, a legal holiday or
a day on which banking institutions are authorized by law or a Governmental
Authority to close, and (ii) with respect to all determinations and notices in
connection with, and payments of principal and interest on, Eurodollar Rate
Loans, any day that is a Business Day described in clause (i) above and that is
also a day for trading by and between banks in Dollar deposits in the London
interbank market.
"CHANGE IN CONTROL" shall mean the occurrence of any of the
following events:
(a) MPW Group is merged, consolidated or reorganized
into or with another Person, and as a result of such merger,
consolidation or reorganization less than a majority of the combined
voting power of the then outstanding voting stock (which shall all
include all other equity interests with voting power) of such Person
immediately after such transaction are held in the aggregate by the
holders of voting stock of MPW Group immediately prior to such
transaction;
(b) MPW Group sells or otherwise transfers all or
substantially all of its assets to another Person, and as a result of
such sale or transfer less than a majority of the combined voting power
of the then outstanding voting stock of such Person immediately after
such sale or transfer is held in the aggregate by the holders of voting
stock of MPW Group immediately prior to such sale or transfer;
(c) (i) there is a report filed on Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report), each as
promulgated pursuant to the Exchange Act, disclosing that any person
(as the term "person" is used in Section 13(d)(3) or Section 14(d)(2)
of the Exchange Act), other than Xxxxx X. Xxxxx or members of his
immediate family, has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of securities
representing 20% or more of the combined voting power of the then
outstanding voting stock of MPW Group; AND (ii) the employment of a
majority of the executive officers of MPW Group has been terminated
and/or a majority of such executive officers have terminated their
employment for "good cause" in accordance with certain Severance
Agreements between such executive officers and MPW Group.
(d) MPW Group files a report or proxy statement with
the Securities and Exchange Commission pursuant to the Exchange Act
disclosing in
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response to Form 8-K or Schedule 14A (or any successor schedule, form
or report or item therein) that a change in control of MPW Group has
occurred or will occur in the future pursuant to any then existing
contract or transaction; or
(e) if, during any period of two consecutive years,
individuals who at the beginning of any such period constitute the
directors of MPW Group cease for any reason to constitute at least a
majority thereof; provided, however, that for purposes of this clause
(e) each director who is first elected, or first nominated for election
by MPW Group's stockholders, by a vote of at least two-thirds of the
directors of MPW Group (or a committee thereof) then still in office
who were directors of MPW Group at the beginning of any such period
will be deemed to have been a director of MPW Group at the beginning of
such period.
Notwithstanding the foregoing provisions of subparts (c) or (d) above, unless
otherwise determined in a specific case by majority vote of the board of
directors of MPW Group, a "Change in Control" shall not be deemed to have
occurred for purposes of such subparts solely because (i) MPW Group, (ii) a
Subsidiary, or (iii) any MPW Group sponsored employee stock ownership plan or
any other employee benefit plan of MPW Group or any Subsidiary either files or
becomes obligated to file a report or a proxy statement under or in response to
Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor
schedule, form or report or item therein) under the Exchange Act disclosing
beneficial ownership by it of shares of voting stock, whether in excess of 20%
or otherwise, or because MPW Group reports that a change in control of MPW Group
has occurred or will occur in the future by reason of such beneficial ownership.
"CLOSING DATE" shall mean the date on or after the Effective
Date on which the Agent shall have received the documents specified in or
pursuant to Section 4.1.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"COMMITMENT" shall mean (x) as to Bank One, the commitment of
Bank One to make Loans to the Borrowers and issue, provide and fund Standby L/Cs
on behalf of the Borrowers up to the maximum aggregate amount of $35 million,
and (y) as to NCBC, the commitment of NCBC to make Loans to the Borrowers and
fund Standby L/Cs on behalf of the Borrowers up to the maximum aggregate amount
of $15 million, in both cases subject to the terms and conditions of this
Agreement and subject to being increased and reduced in accordance with the
terms and conditions of this Agreement.
"COMMITMENT PERIOD" shall mean the period of time from the
date hereof through and including December 31, 2000.
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"CONSOLIDATED CAPITAL EXPENDITURES" of the Borrowers shall
mean, for any period, the aggregate additions to property, plant and equipment
and other capital expenditures of the Borrowers for such period, determined on a
consolidated basis, but shall not include the cost of additions to property,
plant and equipment or otherwise arising out of acquisitions permitted by
Section 2.11.
"CONSOLIDATED FUNDED DEBT" shall mean, at any date, all Debt
of the Borrowers, determined on a consolidated basis, payable more than one (1)
year from the date of the creation thereof, which under GAAP is shown on the
Borrowers' balance sheet as a liability, and shall include all capitalized lease
obligations.
"CONSOLIDATED INTEREST EXPENSE" of the Borrowers shall mean,
for any period, the interest expense of the Borrowers, determined on a
consolidated basis for such period, with respect to all outstanding
indebtedness, including without limitation capital leases (in accordance with
GAAP), all commissions, discounts and other fees and charges owed in connection
with letters of credit or lines of credit, net costs or benefits under interest
rate protection agreements, amortization of deferred financing costs, original
issue discounts, any interest expense relating to deferred compensation
arrangements and any interest expense which must be capitalized in accordance
with GAAP.
"CONSOLIDATED NET INCOME" of the Borrowers shall mean, for any
period, the net income of the Borrowers, determined on a consolidated basis for
such period, inclusive of the effect of any extraordinary or other non-recurring
gain and loss.
"CONSOLIDATED NET WORTH" of the Borrowers shall mean, at any
date, the Shareholders' Equity of the Borrowers, determined on a consolidated
basis as of such date.
"CONSOLIDATED TANGIBLE NET WORTH" of the Borrowers (after
eliminating all intercompany accounts) shall mean, at any date, the Consolidated
Net Worth of the Borrowers, less all related Intangible Assets determined on a
consolidated basis at such date. For purposes of this definition, "Intangible
Assets" shall mean the amount (to the extent reflected in determining such
Consolidated Tangible Net Worth) of (i) all write-ups subsequent to June 30,
1997 in the book value of any asset owned by any Borrower, (ii) all investments
in unconsolidated Subsidiaries and all equity investments in Persons which are
not Subsidiaries, and (iii) all unamortized debt discount and expense,
unamortized deferred charges, goodwill, patents, trademarks, service marks,
trade names, anticipated future benefit of tax loss carry-forwards (other than
the recognition of net deferred tax assets resulting from the termination of
MPW, Inc. status as an S-corporation under the Code and the initial public
offering of securities of MPW Group), copyrights, organization or developmental
expenses and other intangible assets.
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"CONTINGENT OBLIGATION" shall mean, as to any Person, any
reimbursement obligations of such Person in respect of drafts that may be drawn
under letters of credit and any obligation of such Person guaranteeing or in
effect guaranteeing any Debt, leases, dividends or other obligations primarily
to pay money ("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR")
in any manner, whether directly or indirectly, including without limitation any
obligation of such Person, whether or not contingent, (a) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation, or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the Consolidated Net Worth or
solvency of the primary obligor, (c) to purchase property, securities or
services primarily for the purpose of assuring the obligee under any such
primary obligation of the ability of the primary obligor to make payment of such
primary obligation, or (d) otherwise to assure or hold harmless the obligee
under such primary obligation against loss in respect thereof; provided,
however, that the term "CONTINGENT OBLIGATION" shall not include endorsements of
instruments for deposit or collection in the ordinary course of business.
"CONTRACTUAL OBLIGATION" shall mean, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL": (including the terms "controlling", "controlled by"
and "under common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"COVERAGE RATIO" of the Borrowers shall mean the ratio of (i)
the sum of Consolidated Net Income of the Borrowers PLUS Consolidated Interest
Expense of the Borrowers, to (ii) the sum of Consolidated Interest Expense of
the Borrowers PLUS Current Maturities, as determined at the end of each Fiscal
Quarter of the Borrowers' Fiscal Year, based on such financial data for the
previous four (4) Fiscal Quarters.
"CURRENT MATURITIES" shall mean the aggregate amount of the
Borrowers' Consolidated Funded Debt due within one (1) year from the date of
determination thereof.
"DEBT" of any Borrower shall mean at any date, without
duplication (a) any indebtedness for borrowed money which any Borrower directly
or indirectly created, incurred, assumed, endorsed (other than for collection in
the ordinary course of business), discounted with recourse or in respect of
which any Borrower is otherwise directly or indirectly liable including, without
limitation, indebtedness in effect guaranteed by any Borrower through any
agreement (contingent or otherwise) to purchase, repurchase or otherwise acquire
such indebtedness or any security therefor, or to provide funds for the payment
or discharge of such indebtedness or any liability of the obligor of such
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indebtedness (whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or to maintain the solvency or other financial
condition of the obligor of such indebtedness, or to make payment for any
products, materials or supplies or for any transportation or service regardless
of the nondelivery or nonfurnishing thereof, in any such case if the purpose or
intent of such agreement is to provide assurance that such indebtedness will be
paid or discharged, or that any agreement relating thereto will be complied
with, or that the holders of such indebtedness will be protected against loss in
respect thereof; (b) any indebtedness, whether or not for borrowed money, which
any Borrower has incurred, assumed, guaranteed or with respect to which any
Borrower has become directly or indirectly liable (including, without
limitation, through any agreement of the character referred to in clause (a)
hereof) and which represents or has been incurred to finance the purchase price
of any property or business, whether by purchase, consolidation, merger or
otherwise; (c) any indebtedness, whether or not for borrowed money, which is
secured by any mortgage, pledge, security interest, lien or conditional sale or
other title retention agreement existing on any property owned or held by any
Borrower subject thereto, whether or not any Borrower has any personal liability
for such indebtedness.
"DEFAULT" shall mean an event or condition which would
constitute an Event of Default with the giving of notice or lapse of time, or
otherwise.
"DEFAULT RATE" shall mean, with respect to any Loan, the Base
Rate at such time PLUS 200 basis points.
"DERIVATIVES OBLIGATIONS" of any Person shall mean all
obligations of such Person in respect of any rate swap transaction, basis swap,
forward rate transaction, commodity swap, commodity option, equity or equity
index swap, equity or equity index option, bond option, interest rate option,
foreign exchange transaction, cap transaction, floor transaction, collar
transaction, currency swap transaction, cross-currency rate swap transaction,
currency option or any other similar transaction (including any option with
respect to any of the foregoing transactions), any transaction whose value is
derived from another asset or security, or any combination of the foregoing
transactions.
"DOLLAR" and the sign "$" shall mean lawful money of the
United States.
"EFFECTIVE DATE" shall mean the date this Agreement becomes
effective in accordance with Section 11.5.
"ENVIRONMENTAL LAWS" shall mean the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
Section 9601, et seq., the Toxic Substances Control Act, 15 U.S.C. Section
2601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq., the Water Quality Act of 1987, 33 U.S.C. Section 1251, et seq.,
the Clean Air Act, 42 U.S.C. Section 7401, et seq., and any other federal,
state or local
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statute, ordinance, law, code, rule, regulation or order regulating or imposing
liability (including strict liability) or standards of conduct regarding
Hazardous Substances.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may from time to time be supplemented or amended and any
successor statute.
"ERISA EVENT" shall mean, with respect to any Person, (a) a
Reportable Event (other than a Reportable Event not subject to the provision for
30-day notice to the PBGC under regulations issued under Section 4043 of ERISA),
(b) the withdrawal of any member of the ERISA Group from a Plan during a plan
year in which it was a "substantial employer" as defined in Section 4001(a)(2)
of ERISA if such withdrawal would have a adverse effect on such Person, (c) the
filing by such Person of a notice of intent to terminate a Plan under a distress
termination or the treatment of a Plan amendment as a distress termination under
Section 4041(c) of ERISA, (d) the institution of proceedings against such Person
to terminate a Plan by the PBGC under Section 4042 of ERISA, (e) the failure to
make required contributions that would result in the imposition of a lien under
Section 412 of the Code or Section 302 of ERISA, (f) any Prohibited Transaction
involving any Plan, and (g) any other event or condition which might reasonably
be expected to constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan.
"ERISA GROUP" of any Person shall mean such Person, any
Subsidiary and all members of a controlled group of corporations and all trades
or business (whether or not incorporated) under common control which, together
with a Borrower or any Subsidiary, are treated as a single employer under
Section 414 of the Code.
"EURODOLLAR RATE" shall mean, for any Interest Period, an
interest rate per annum (based on a 360-day year) obtained by dividing (i) the
rate of interest determined by the Agent to be the arithmetic mean (rounded
upward, if necessary, to the nearest 1/100th of one percentage point of the rate
per annum) (based on a 360-day year) at which deposits in immediately available
and freely transferable Dollars are offered by first class banks in the London
interbank market to United States banks at 10:30 a.m. (Columbus, Ohio time) one
(1) Business Day before the first day of such Interest Period for a period equal
to such Interest Period and in an amount substantially equal to the amount of
the Eurodollar Rate Loan to be outstanding during such Interest Period, by (ii)
a percentage equal to 100% (expressed as a decimal) minus the Eurodollar Reserve
Percentage for such interest period. Each calculation by the Agent of the
applicable Eurodollar Rate shall be conclusive and binding for all purposes,
absent manifest error.
"EURODOLLAR RATE LOAN" shall mean, at any time, any
outstanding Loan that bears interest based on the Eurodollar Rate.
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"EURODOLLAR RESERVE PERCENTAGE" shall mean for any day that
percentage (expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirements (including, without
limitation, basic, supplemental, marginal and emergency reserves) for a member
bank of the Federal Reserve System in respect of "Eurocurrency liabilities" (or
in respect of any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Rate Loans is determined or
any category of extensions of credit or other assets which includes loans by a
non-United States office of any Bank to United States residents).
"EVENT OF DEFAULT" shall have the meaning set forth in Section
8.1.
"FACILITY DOCUMENTS" shall mean this Agreement, the Notes, the
Standby L/Cs, the Standby L/C Applications and any and all other documents
evidencing, securing or relating to the Loans, as such documents may be amended,
modified, supplemented, extended, restated or replaced from time to time.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per
annum (rounded upward, if necessary, to the nearest 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; provided that (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate quoted to Bank One on such day on such
transactions as determined by the Agent.
"FISCAL QUARTER" shall mean, as to the Borrowers, any
consecutive three-month period ending on March 31, June 30, September 30 and
December 31.
"FISCAL YEAR" shall mean, as to the Borrowers, any period of
twelve consecutive calendar months ending on June 30.
"GAAP" shall mean generally accepted accounting principles in
the United States in effect at the time any determination is made or financial
statement is required hereunder as promulgated by the American Institute of
Certified Public Accountants, the Accounting Principles Board, the Financial
Accounting Standards Board or other body existing from time to time which is
authorized to establish or interpret such principles.
"GOVERNMENTAL AUTHORITY" shall mean any national government,
central bank or comparable agency, any state or other political subdivision
thereof and any entity
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exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"HAZARDOUS SUBSTANCES" shall mean and include all hazardous
and toxic substances, wastes, materials, compounds, pollutants and contaminants
(including, without limitation, asbestos, polychlorinated biphenyls, and
petroleum products) which are included under or regulated by Environmental Laws.
"INTEREST PAYMENT DATE" shall mean (a) with respect to each
Base Rate Loan, the last day of each Fiscal Quarter, beginning with December 31,
1997, and continuing on the last day of each Fiscal Quarter thereafter, and on
(i) the Termination Date with respect to the Revolving Credit Loans, and (ii)
the applicable Term Loan Maturity Date with respect each Term Loan, and (b) with
respect to each Eurodollar Rate Loan, (x) the last day of each Interest Period
with respect thereto, and in the case of an Interest Period greater than three
months, on the last day of each Fiscal Quarter, beginning with December 31,
1997, and continuing on the last day of each Fiscal Quarter thereafter and on
the last day of the Interest Period with respect thereto, and (y)on (A) the
Termination Date with respect to the Revolving Credit Loans, and (B) the
applicable Term Loan Maturity Date with respect each Term Loan.
"INTEREST PERIOD" shall mean, with respect to any Eurodollar
Rate Loan:
(a) initially, the period commencing on the Loan
Borrowing Date or the Conversion Date, as the case may be, with respect
to such Eurodollar Rate Loan and ending one month, two months, three
months, six months or one year thereafter, as selected by the Borrowers
by irrevocable notice to the Agent not less than three (3) Business
Days prior to such Loan Borrowing Date; and
(b) thereafter, each such period commencing on the
last day of the next preceding Interest Period applicable to such
Eurodollar Rate Loan and ending one month, two months, three months,
six months or one year thereafter, as selected by the Borrowers by
irrevocable notice to the Agent not less than three (3) Business Days
prior to the last day of the then current Interest Period with respect
thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(i) any Interest Period which would otherwise end on
a day that is not a Business Day shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business
Day;
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(ii) any Interest Period that would otherwise extend
beyond the Termination Date or a Term Loan Maturity Date shall end on
the Termination Date or such Term Loan Maturity Date, respectively;
(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month.
"INTEREST RATE" shall mean the rate of interest in effect at
any time with respect to a Loan, whether based on the Base Rate or the
Eurodollar Rate.
"INTEREST RATE CONVERSION DATE" shall have the meaning set
forth in Section 2.4(b).
"INVESTMENT" shall mean any investment in any Person, whether
by means of share purchase, capital contribution, loan, time deposit or
otherwise (but not including any demand deposit).
"L/C FUNDING" shall mean the funding of a draw pursuant to a
Standby L/C to the beneficiary thereof.
"LEVERAGE RATIO" of the Borrowers shall mean, at any time, the
ratio of Consolidated Funded Liabilities of the Borrowers to Consolidated
Tangible Net Worth of the Borrowers.
"LIEN" shall mean any mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other),
security interest, preference, priority or other security agreement, including
without limitation, any conditional sale or other title retention agreement, and
the filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in respect of any of the foregoing.
"LOAN BORROWING DATE" shall mean a Revolving Credit Loan
Borrowing Date in connection with a Revolving Credit Loan and a Term Loan
Borrowing Date in connection with a Term Loan, as the case may be.
"LOAN COMMITMENT PERCENTAGE" shall mean each Bank's Revolving
Credit Loan Commitment Percentage in connection with a Revolving Credit Loan and
each Bank's Term Loan Commitment Percentage in connection with a Term Loan, as
the case may be.
"MATERIAL ADVERSE EFFECT" shall mean, relative to any
occurrence of whatever nature (including any determination in litigation,
arbitration or governmental proceeding
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or investigation), which the Required Banks reasonably determine will have a
materially adverse effect on:
(a) the assets, business, profits, properties, condition
(financial or otherwise), operations or foreseeable financial prospects
of the Borrowers, taken as a whole; or
(b) the ability of any Borrower to perform any of its payment
or other obligations under this Agreement, the Notes and any other
Facility Documents or the transactions contemplated hereby and thereby.
"NOTES" shall mean, collectively, the Revolving Credit Loan
Notes and the Terms Loan Notes, and "NOTE" shall mean any one of such Notes of
the Borrowers.
"NOTICE OF BORROWING" shall mean a Notice of Revolving Credit
Loan Borrowing or a Notice of Term Loan Borrowing, as the case may be.
"NOTICE OF INTEREST RATE CONVERSION" shall have the meaning
set forth in Section 2.4(b).
"NOTICE OF REVOLVING CREDIT LOAN BORROWING" shall have the
meaning set forth in Section 2.3(a).
"NOTICE OF TERM LOAN BORROWING" shall have the meaning set
forth in Section 2.3(b).
"PARTICIPANT" shall mean any Person, now or at any time
hereafter, participating with any Bank in Loans to the Borrowers.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA, or any entity
succeeding to any or all of its functions under ERISA.
"PERMITTED INVESTMENTS" shall mean:
(a) direct obligations of the United States of
America or any agency or instrumentality thereof or obligations backed
by the full faith and credit of the United States of America maturing
in twelve (12) months or less from the date of acquisition;
(b) commercial paper maturing in 180 days or less
rated not lower than A-1 by Standard & Poor's Ratings Services, a
division of The McGraw Hill
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Companies, Inc., or P-1 by Xxxxx'x Investors Service, Inc. on the date
of acquisition;
(c) demand deposits, time deposits or certificates of
deposit maturing within one year in commercial banks whose obligations
are rated A-1, A or the equivalent or better by Standard & Poor's
Ratings Service, a division of The McGraw Hill Companies, Inc., on the
date of acquisition; and
(d) Investments offered by the Banks.
"PERSON" shall mean an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"PLAN" shall mean any employee benefit plan or other plan
maintained for employees covered by Title 10 of ERISA.
"PROHIBITED TRANSACTION" shall mean a transaction described in
Section 406 of ERISA which is not the subject of an exemption pursuant to
Section 408 of ERISA.
"RATE DETERMINATION DATE" shall have the meaning set forth in
Section 2.7(b).
"REAL PROPERTY" shall have the meaning set forth in Section
5.16.
"REPORTABLE EVENT" shall have the meaning given such term in
Section 4043(b) of ERISA.
"REQUIRED BANKS" shall mean at any time Banks having at least
66-2/3% of the aggregate amount of the Commitments or, if the Commitments shall
have been terminated, holding Notes evidencing at least 66-2/3% of the aggregate
unpaid principal amount of the Revolving Credit Loans and Term Loans.
"REQUIRED PROPERTY INSURANCE COVERAGE" shall mean at any time
business interruption insurance, workers' compensation insurance and insurance
insuring all property of the Borrowers against loss or damage by fire,
lightening, vandalism and malicious mischief and all other perils covered by
standard "extended coverage" or "all- risk" insurance in amounts satisfactory to
the Required Banks, with deductibles from the loss payable for any casualty not
to exceed the amounts set forth on Schedule A, or as otherwise may be required
by the Required Banks at any time and from time to time. If any insurance
policies with respect to Required Property Insurance Coverage is written on a
co-insurance basis, such policy must contain an agreed amount endorsement as
evidence that the coverage is in an amount sufficient to insure the full amount
of such property.
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"REQUIRED PUBLIC LIABILITY INSURANCE COVERAGE" shall mean
comprehensive general accident and public liability insurance (including
coverage for elevators and escalators, if any, on property owned or leased by
the Borrowers) against injury, loss and/or damage to persons and property in the
amounts satisfactory to the Required Banks, with deductibles not to exceed the
amounts set forth on Schedule A, or as otherwise may be required by the Required
Banks at any time and from time to time.
"REQUIREMENTS OF LAW" shall mean as to any Person, the
articles (certificate) of incorporation or formation, code of regulations
(by-laws), operating agreement or other organizational agreements or other
governing documents of such Person, and any law, statute, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"RESTRICTED PAYMENT" means (i) any dividend or other
distribution on any shares of a Person's capital stock (except dividends payable
solely in shares of its capital stock) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (y) any shares of a Person's
capital stock, or (z) any option, warrant or other right to acquire shares of a
Person's capital stock (but not including payments of principal, premium (if
any) or interest made pursuant to the terms of convertible debt securities prior
to conversion).
"REVOLVING CREDIT LOAN" or "REVOLVING CREDIT LOANS" shall mean
a loan or loans made from time to time to the Borrowers by the Banks pursuant to
Section 2.1(a) and as evidenced by the Revolving Credit Loan Notes.
"REVOLVING CREDIT LOAN BORROWING DATE" shall have the meaning
set forth in Section 2.3(a).
"REVOLVING CREDIT LOAN COMMITMENT" shall mean (x) as to Bank
One, the commitment of Bank One to make Loans to the Borrowers and issue,
provide and fund Standby L/Cs on behalf of the Borrowers up to the maximum
aggregate amount of $10,500,000, and (y) as to NCBC, the commitment of NCBC to
make Loans to the Borrowers and fund Standby L/Cs on behalf of the Borrowers up
to the maximum aggregate amount of $4,500,000, in both cases subject to the
terms and conditions of this Agreement and subject to being increased and
reduced in accordance with the terms and conditions of this Agreement.
"REVOLVING CREDIT LOAN COMMITMENT PERCENTAGE" shall mean the
percentage that each Bank's Revolving Credit Loan Commitment to make Revolving
Credit Loans bears to the Aggregate Revolving Credit Loan Commitment of all
Banks to make Revolving Credit Loans hereunder.
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"REVOLVING CREDIT LOAN NOTES" shall mean the Revolving Credit
Loan Notes of the Borrowers, in the form of Exhibit A attached hereto,
evidencing the obligation of the Borrowers to repay the Revolving Credit Loans,
as the same may be amended, modified, supplemented, extended, restated or
replaced from time to time.
"SETOFF OBLIGATION" shall mean and include all Debt of the
Borrowers to the Banks, including, but not limited to, the Debt of the Borrowers
arising under the Notes or any other document, instrument or agreement referred
to herein.
"SHAREHOLDERS' EQUITY" shall mean the shareholders' or other
owners' equity with respect to the Borrowers, as shown on the consolidated
balance sheet of the Borrowers and as determined in accordance with GAAP.
"STANDBY L/C" shall mean an irrevocable letter of credit under
which the Bank agrees to make payments in Dollars for the account of the
Borrowers, or on behalf of the Borrowers, in respect of obligations of any
Borrower incurred pursuant to contracts made or performances undertaken or like
matters relating to contracts to which any Borrower is or proposing to become a
party in the ordinary course of such Borrower's business.
"STANDBY L/C APPLICATION" shall mean a Standby Letter of
Credit Application and Agreement in Bank One's customary form at any time with
respect to a request to issue a Standby L/C.
"SUBSIDIARY" shall mean, as to any Person, any corporation or
other entity of which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions are at the time directly or indirectly owned by
such Person; unless otherwise specified, "Subsidiary" means a Subsidiary of a
Borrower.
"TERM LOAN" or "TERM LOANS" shall mean a loan or loans made
from time to time to the Borrowers by the Banks pursuant to Section 2.1(c) and
as evidenced by the Term Loan Notes.
"TERM LOAN BORROWING DATE" shall have the meaning set forth in
Section 2.3(b).
"TERM LOAN COMMITMENT" shall mean (x) as to Bank One, the
commitment of Bank One to make Term Loans to the Borrowers up to the maximum
aggregate amount of $24,500,000, and (y) as to NCBC, the commitment of NCBC to
make Terms Loans to the Borrowers up to the maximum aggregate amount of
$10,500,000, in both cases subject to the terms and conditions of this Agreement
and subject to being increased and reduced in accordance with the terms and
conditions of this Agreement.
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"TERM LOAN COMMITMENT PERCENTAGE" shall mean the percentage
that each Bank's Term Loan Commitment to make Term Loans bears to the Aggregate
Term Loan Commitment of all Banks to make Term Loans hereunder.
"TERM LOAN MATURITY DATE" shall mean the date which is five
(5) years after the date each Term Loan Note is issued by the Borrowers to a
Bank in accordance with the terms of this Agreement.
"TERM LOAN NOTE" or "TERM LOAN NOTES" shall mean the
promissory note or notes of the Borrowers, each in the form of Exhibit B
attached hereto, evidencing the obligation of the Borrowers to repay the Term
Loans , as the same may be amended, modified, supplemented, extended, restated
or replaced from time to time.
"TERMINATION DATE" shall mean the date upon which the
Commitment Period ends.
"TOTAL INTEREST EXPENSE" shall mean, for any Person, interest
paid on a consolidated basis with respect to all outstanding indebtedness
including without limitation capital leases (in accordance with GAAP), all
commissions, discounts and other fees and charges owed in connection with
letters of credit or lines of credit, net costs or benefits under interest rate
protection agreements, amortization of deferred financing costs, original issue
discounts, and any interest expense relating to deferred compensation
arrangements.
"UNIFORM COMMERCIAL CODE" shall mean means Chapters 1301
through 1309, inclusive, Ohio Revised Code, as from time to time amended.
"UNIFORM CUSTOMS" shall mean the Uniform Customs and Practice
for Documentary Credits, 1993 Revision, ICC Publication No. 500, or any
amendment thereof or successor thereto.
"UNITED STATES" shall mean the United States of America,
including the States and the District of Columbia, but excluding its territories
and possessions.
SECTION 1.2 USE OF TERMS. Unless otherwise defined or the context
otherwise requires, terms for which meanings are provided in this Agreement
shall have such meanings when used in the exhibits and schedules hereto, the
other Facility Documents and any other communications delivered from time to
time in connection with this Agreement. Terms defined in the singular shall have
a comparable meaning when used in the plural, and vice versa, unless otherwise
defined in the plural.
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SECTION 1.3 CROSS REFERENCES; HEADINGS. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement or in
any of the other Facility Documents shall refer to this Agreement or such
Facility Documents as a whole and not to any particular provision of this
Agreement or such Facility Documents. Section, article, schedule and exhibit
references contained in this Agreement are references to sections, articles,
schedules and exhibits in or to this Agreement unless otherwise specified. Any
reference in any section or definition to any clause is, unless otherwise
specified, to such clause of such section or definition. The various headings in
this Agreement and the other Facility Documents are inserted for convenience of
reference only and shall not affect the meaning or interpretation of this
Agreement or the other Facility Documents or any provision hereof or thereof.
SECTION 1.4 ACCOUNTING TERMS. Any accounting term used in this
Agreement and in the other Facility Documents and any certificate or other
document made or delivered pursuant hereto or thereto that is not specifically
defined shall have the meaning customarily given in accordance with GAAP;
provided, however, that in the event that changes in GAAP shall be mandated by
the Financial Accounting Standards Board, or any similar accounting body of
comparable standing, and to the extent that such changes would modify or could
modify such accounting terms or the interpretation or computation thereof, such
changes shall be followed in defining such accounting terms only from and after
the date the Borrowers and the Banks shall have amended this Agreement to the
extent necessary to reflect any such changes in the financial covenants and
other terms and conditions of this Agreement.
ARTICLE II
AMOUNT AND TERMS OF COMMITMENTS, REVOLVING CREDIT LOANS AND
-----------------------------------------------------------
TERM LOANS
----------
SECTION 2.1 COMMITMENTS.
(a) Subject to the terms and conditions of this Agreement,
each Bank severally agrees to make Revolving Credit Loans to the Borrowers from
time to time during the Commitment Period; provided that, immediately after each
such Revolving Credit Loan is made, the aggregate principal amount of Revolving
Credit Loans by such Bank shall not exceed the amount of its Revolving Loan
Commitment (as such Revolving Loan Commitment may be increased or reduced from
time to time in accordance with the terms of this Agreement), either as to
Dollar amount or its Revolving Credit Loan Commitment Percentage. Each borrowing
for a Revolving Credit Loan shall be in an aggregate principal amount of at
least $100,000, or larger multiples of $10,000, and shall be made by the Banks
in accordance with each Bank's respective Revolving Credit Loan Commitment
Percentage. During the Commitment Period and as long as no Default or Event of
Default exists, the Borrowers may use the Revolving Loan Commitment by
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borrowing, repaying the Revolving Credit Loans, in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) Subject to the terms and conditions of this Agreement, up
to $5 million of the Revolving Loan Commitment may be taken, from time to time,
at the Borrowers' option, in the form of Standby L/Cs pursuant to the terms
hereof and the Standby L/C Applications. Amounts paid against draws under
Standby L/Cs shall be considered to be Revolving Credit Loans outstanding under
the Revolving Loan Commitment until such amounts shall have been reimbursed to
the Bank pursuant to the terms of the Standby L/C Applications.
(c) Subject to the terms and conditions of this Agreement,
each Bank severally agrees to make Term Loans to the Borrowers from time to time
during the Commitment Period; provided that, immediately after each such Term
Loan is made, the aggregate principal amount of Term Loans by such Bank shall
not exceed the amount of its Term Loan Commitment (as such Term Loan Commitment
may be increased or reduced from time to time in accordance with the terms of
this Agreement), either as to Dollar amount or its Term Loan Commitment
Percentage. Each borrowing for a Term Loan shall be in an aggregate principal
amount of at least $1 million, and shall be made from the several Banks in
accordance with each Bank's respective Term Loan Commitment Percentage. After
the funding of any Term Loan, the Borrowers shall not have the ability to
reborrow, in whole or in part, any amounts repaid with respect to the Term
Loans.
(d) Within the limits of the Commitments and subject to the
other terms and conditions of this Agreement and the other Facility Documents,
each Borrower may borrow hereunder and, with respect to Revolving Credit Loan
Commitment, repay and reborrow.
(e) Notwithstanding any provision hereof to the contrary, the
total amount of the sum of (i) the amount of outstanding and unpaid Revolving
Credit Loans, PLUS (ii) the amount of Term Loans funded hereunder, PLUS (iii)
the total aggregate Dollar amount available to be drawn under outstanding
Standby L/Cs, shall at no time exceed the Aggregate Commitment.
SECTION 2.2 NOTES.
(a) The Revolving Credit Loans made by each Bank to the
Borrowers pursuant hereto shall be evidenced by a separate Revolving Credit Loan
Note payable to the order of such Bank in an aggregate amount equal to the
Revolving Credit Loan Commitment of such Bank at any time. Each Revolving Credit
Loan Note shall (i) be dated as of the date the Revolving Credit Loan Note is
issued or reissued, as the case may be, (ii) be in a principal amount
corresponding to the aggregate amount of such Bank's Revolving Credit Loan
Commitment when so issued or reissued, as the case may be, (iii)
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bear interest as determined pursuant to this Agreement, (iv) mature on the
Termination Date, and (v) require accrued interest to be paid on the applicable
Interest Payment Date and at maturity in accordance with the terms of this
Agreement.
(b) Each Term Loan made by each Bank to the Borrowers pursuant
hereto shall be evidenced by a separate Term Loan Note payable to the order of
such Bank in an aggregate amount equal to the Term Loan Commitment Percentage of
such Bank multiplied by the amount of Term Loan. Each Term Loan Note shall (i)
be dated as of the date the Term Loan Note is issued or reissued, as the case
may be, (ii) be in a principal amount equal to the Term Loan Commitment
Percentage of such Bank multiplied by the amount of Term Loan when so issued or
reissued, as the case may be, (iii) require principal to be repaid in 20 equal
consecutive payments of principal to be paid on the last day of each Fiscal
Quarter, (iv) bear interest as determined pursuant to this Agreement, (v) mature
on the applicable Term Loan Maturity Date, and (vi) require accrued interest to
be paid on the applicable Interest Payment Date and at maturity in accordance
with the terms of this Agreement.
(c) Upon receipt of each Bank's Note pursuant to Article IV,
the Agent shall forward such Note to such Bank. Each Bank is hereby authorized
to record electronically or otherwise the date and amount of each Loan
disbursement made by such Bank, the date and amount of each payment or repayment
of principal thereof, the type of such borrowing (whether a Eurodollar Rate Loan
or a Base Rate Loan), and such other information as it deems necessary or
appropriate. Such recordation shall constitute prima facie evidence of the
accuracy of the information so recorded; provided, however, the failure of such
Bank to make any such recordation(s) shall not affect the obligation of the
Borrowers to repay outstanding principal, interest or any other amount due
hereunder or under such Note in accordance with the terms hereof and thereof.
SECTION 2.3 NOTICE OF LOAN BORROWING; FUNDING OF LOANS.
(a) When the Borrowers desire to borrow hereunder with respect
to a Revolving Credit Loan, the Borrowers shall give the Agent notice (a "Notice
of Revolving Credit Loan Borrowing"). Such Notice of Revolving Credit Loan
Borrowing (i) shall be irrevocable, and (ii) must be received by the Agent prior
to (x) 10:30 a.m. Columbus, Ohio time, at least one (1) Business Day prior to
the proposed date of the borrowing, which date shall be a Business Day (a
"Revolving Credit Loan Borrowing Date"), if all or any part of the requested
Revolving Credit Loans are to be initially Eurodollar Rate Loans, or (y) 10:30
a.m. Columbus, Ohio time, at least one (1) Business Day prior to the Revolving
Credit Loan Borrowing Date if all of the requested Revolving Credit Loans are to
be initially Base Rate Loans. Each such Notice of Revolving Credit Loan
Borrowing shall specify (i) the amount to be borrowed, (ii) the requested
Revolving Credit Loan Borrowing Date, (iii) whether the borrowing is to be of
Eurodollar Rate Loans, Base Rate Loans or a
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combination thereof, and (iv) if the borrowing is to be entirely or partly of
Eurodollar Rate Loans, the amount and the Interest Period with respect to each
Eurodollar Rate Loan.
(b) When the Borrowers desire to borrow hereunder with respect
to a Term Loan, the Borrowers shall give the Agent notice (a "Notice of Term
Loan Borrowing"). Such Notice of Term Loan Borrowing must be received by the
Agent at least five (5) days prior to the proposed date of the borrowing, which
date shall be a Business Day (a "Term Loan Borrowing Date"). Each such Notice of
Term Loan Borrowing shall specify (i) the amount to be borrowed, (ii) the
requested Term Loan Borrowing Date, (iii) whether the borrowing is to be of
Eurodollar Rate Loans, Base Rate Loans or a combination thereof, and (iv) if the
borrowing is to be entirely or partly of Eurodollar Rate Loans, the amount and
the Interest Period with respect to each Eurodollar Rate Loan. In addition, if
the requested Term Loan is in connection with an acquisition pursuant to Section
2.11(y), the information required to be provided to the Banks pursuant to such
Section 2.11(y) shall have been provided to the Banks and any necessary consents
required by such Section 2.11(y) shall have given by the Banks prior to the date
the relevant Notice of Term Loan Borrowing is given to the Agent.
(c) Upon receipt of a Notice of Borrowing given in accordance
with subsections (a) or (b) above, the Agent shall promptly notify each Bank of
the contents thereof and of such Bank's Revolving Credit Loan in proportion to
its Revolving Credit Loan Commitment Percentage or such Bank's Term Loan in
proportion to its Term Loan Commitment Percentage, as the case may be.
(d) Unless the Agent determines that any applicable
condition(s) specified in Article IV has not been satisfied not later than 12:00
noon, Columbus, Ohio time on the applicable Loan Borrowing Date, each Bank shall
make available its Loan in proportion to its Loan Commitment Percentage in
federal or other funds immediately available in Columbus, Ohio, to the Agent at
its address set forth in Section 11.4, and in turn, the Agent will promptly make
the funds so received from the Banks available to the Borrowers at the Agent's
aforesaid address.
(e) In the event that a Notice of Borrowing fails to specify
whether the Loans are to be Eurodollar Rate Loans or Base Rate Loans, or a
combination thereof, such Loans shall be made as Base Rate Loans.
(f) There may be no more than four (4) different Interest
Periods for Eurodollar Rate Loans outstanding at the same time (for which
purpose Interest Periods described in the definition of the term "Interest
Period" shall be deemed to be different Interest Periods even if they are
coterminous).
(g) Unless the Agent shall have received notice from a Bank
prior to a Loan Borrowing Date that such Bank will not make available to the
Agent the amount that
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would constitute its Loan Commitment Percentage of the borrowing to be made on
such date, the Agent may assume that such Bank has made such amount available to
the Agent on such Loan Borrowing Date, and the Agent may, in reliance upon such
assumption, make available to the Borrowers a corresponding amount. If and to
the extent that such Bank shall not have so made such amount available to the
Agent, such Bank and the Borrowers shall severally repay to the Agent on demand
such corresponding amount, together with interest thereon for each day from the
date such amount is made available to the Borrowers until the date such amount
is repaid to the Agent, at (i) in the case of the Borrowers, a rate per annum
equal to the interest rate applicable thereto pursuant to Section 2.7, and (ii)
in the case of such Bank, the Federal Funds Rate. If such Bank shall repay to
the Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Revolving Credit Loan included in such borrowing for purposes of this
Agreement. Nothing in this subsection (g) shall be interpreted to relieve any
Bank of its obligations to make Loans hereunder.
(h) The failure of any Bank to make the Loan to be made by it
on any Loan Borrowing Date shall not relieve any other Bank of its respective
obligation, if any, hereunder to make its Loan on such Loan Borrowing Date, but
no Bank shall be responsible for the failure of any other Bank to make the Loan
to be made by such other Bank on such Loan Borrowing Date.
SECTION 2.4 CONVERSION AND CONTINUATION OPTIONS.
(a) All Loans shall bear interest at the initial Interest Rate
selected by the Borrowers for such Loan until (i) the Interest Rate is converted
to another Interest Rate in accordance with the terms of this Agreement, or (ii)
the Borrowers convert such Interest Rate(s) to a different Interest Rate in
accordance with the terms of this Agreement.
(b) The Borrowers may elect from time to time to convert
outstanding Loans from one Interest Rate to the other Interest Rate by giving
prior irrevocable notice (a "Notice of Interest Rate Conversion") to the Agent
prior to the requested conversion date, which date shall be a Business Day (a
"Interest Rate Conversion Date") as follows:
(i) The Borrowers may elect from time to time to
convert outstanding Loans from Eurodollar Rate Loans to Base Rate Loans
by giving prior irrevocable notice (a "Notice of Interest Rate
Conversion") to the Agent at least one (1) Business Day prior to the
requested Interest Rate Conversion Date of such election; provided,
however, that any such conversion of Eurodollar Rate Loans may only be
made on the last day of an Interest Period with respect thereto. Each
such Notice of Interest Rate Conversion shall specify (i) the Loans to
be so converted, and (ii) the requested Interest Rate Conversion Date.
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(ii) The Borrowers may elect from time to time to
convert outstanding Loans from Base Rate Loans to Eurodollar Rate Loans
by giving the Agent a Notice of Interest Rate Conversion at least one
(1) Business Day prior to the requested Interest Rate Conversion Date.
Each such Notice of Interest Rate Conversion shall specify (i) the
Loans to be so converted, (ii) the requested Interest Rate Conversion
Date, and (iii) the respective amounts of each Eurodollar Rate Loan and
the Interest Period with respect thereto.
(c) All or any part of outstanding Eurodollar Rate Loans and
Base Rate Loans may be converted as provided herein, provided that (x) no Loan
may be converted into a Eurodollar Rate Loan when any Default or Event of
Default has occurred and is continuing hereunder, (y) no Loan may be converted
into, or continued as, a Eurodollar Rate Loan after the date that is one month
prior to the Termination Date, and (z) such conversion otherwise complies with
the applicable provisions of the proposed Interest Period and this Agreement.
(d) The Borrowers may elect from time to time to continue any
Eurodollar Rate Loan as such upon the expiration of the then current Interest
Period with respect thereto by giving prior notice of such continuation to the
Agent at least three (3) Business Days prior to the requested continuation date;
provided that no Eurodollar Rate Loan may be continued as such (x) when any
Default or Event of Default has occurred and is continuing, (y) after the date
that is one month prior to the Termination Date, and (z) such continuation
otherwise complies with the applicable provisions of the proposed Interest
Period and this Agreement. If the Borrowers shall fail to give any required
notice as described above in this subsection or if such continuation is not
permitted pursuant to the terms of this Agreement, such Loan shall be
automatically converted to a Base Rate Loan on the last day of such then
expiring Interest Period.
SECTION 2.5 OPTIONAL TERMINATION OR REDUCTION OF COMMITMENTS. During
the Commitment Period and provided no Default or Event of Default shall then
have occurred and be continuing, the Borrowers may, upon at least thirty (30)
days' prior written notice to the Agent and the Banks:
(a) permanently terminate the Revolving Credit Loan
Commitments at any time, if no Revolving Credit Loans and/or Standby L/Cs are
outstanding at such time;
(b) permanently and ratably (as among the Banks) reduce from
time to time, by an aggregate amount of $500,000 or any larger multiple of
$100,000, the aggregate amount of the Revolving Credit Loan Commitments in
excess of the then aggregate outstanding principal amount of the Revolving
Credit Loans;
(c) permanently terminate the Term Loan Commitments at any
time, if no Term Loans are outstanding at such time;
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(d) permanently and ratably (as among the Banks) reduce from
time to time by an aggregate amount of $500,000 or any larger multiple of
$100,000 the aggregate amount of the Term Loan Commitments in excess of the
aggregate principal amount of Term Loans previously funded.
SECTION 2.6 TERMINATION OF COMMITMENTS.
(a) The Revolving Credit Loan Commitments shall terminate on
the Termination Date and any Revolving Credit Loans then outstanding, together
with all accrued interest thereon and all other outstanding fees, charges and
expenses payable hereunder and under the other Facility Documents shall be due
and payable immediately.
(b) The Term Loan Commitments shall terminate on the
Termination Date.
SECTION 2.7 INTEREST.
(a) "Applicable Margin" shall be as set forth in the follow
matrix:
---------------------------------------------------------------------------------------
APPLICABLE MARGIN
-----------------------------------------------------------------
LEVERAGE REVOLVING REVOLVING TERM LOAN TERM LOAN
RATIO/ CREDIT LOAN CREDIT LOAN EURODOLLAR
COVERAGE BASE RATE EURODOLLAR RATE
RATIO FOR RATE
THE
BORROWERS
LESS THAN -75 BASIS +75 BASIS -50 BASIS +100 BASIS
0.125:1.0/ POINTS POINTS POINTS POINTS
GREATER THAN
2.0:1.0
---------------------------------------------------------------------------------------
EQUAL TO OR -60 BASIS +90 BASIS -35 BASIS +115 BASIS
GREATER THAN POINTS POINTS POINTS POINTS
0.125 TO 1.0
BUT LESS
THAN 0.25 TO
1.0/
GREATER THAN
2.0 TO 1.0
---------------------------------------------------------------------------------------
EQUAL TO OR -50 BASIS +100 BASIS -25 BASIS +125 BASIS
GREATER THAN POINTS POINTS POINTS POINTS
0.25 TO 1.0
BUT LESS
THAN 1.0 TO
1.0/
GREATER THAN
1.75 TO 1.0
---------------------------------------------------------------------------------------
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---------------------------------------------------------------------------------------
EQUAL TO OR -25 BASIS +125 BASIS +0 BASIS +150 BASIS
GREATER THAN POINTS POINTS POINTS POINTS
1.0 TO 1.0/
GREATER THAN
1.5 TO 1.0
---------------------------------------------------------------------------------------
(b) The Applicable Margin shall be determined as of the first
day of each Fiscal Quarter (each a "Rate Determination Date") based upon the
calculation of the Leverage Ratio and Coverage Ratio of the Borrowers as of the
end of the second Fiscal Quarter next preceding a Rate Determination Date as set
forth in the certificate of the Authorized Officer required to be delivered to
the Bank pursuant to Section 6.2(a). Such Applicable Margin shall remain in
effect from such Rate Determination Date until the next Rate Determination Date,
provided that:
(i) in the case of an Applicable Margin determined
from such certificate of the Authorized Officer for the fourth and
final Fiscal Quarter of every Fiscal Year, in the event that the annual
financial statements for such Fiscal Year subsequently provided to the
Bank indicate that the Applicable Margin originally determined to be
effective on the Rate Determination Date immediately following the end
of such Fiscal Quarter was inappropriate in light of such annual
financial statements, then the Applicable Margin shall be adjusted
retroactively to such Rate Determination Date to reflect the proper
Applicable Margin; and
(ii) if on any Rate Determination Date the Borrowers
shall have failed to have delivered to the Bank such certificate of the
Authorized Officer required be delivered pursuant to Section 6.2(a)
with respect to the second preceding Fiscal Quarter, then for the
period beginning on such Rate Determination Date and ending on the
earlier of (x) the date on which the Borrowers shall deliver to the
Bank the delinquent certificate or (y) the date on which the Borrowers
shall deliver to the Bank such certificate of the Authorized Officer
required to be delivered pursuant to Section 6.2(a) with respect to the
Fiscal Year which includes such Fiscal Quarter, the Applicable Margin
shall be determined as if the Leverage Ratio and Coverage Ratio of the
Borrowers were (x) equal to or greater than 1.0 to 1.0 and (y) greater
than 1.5 to 1.0, respectively, at all times during such period. Any
change in the Applicable Margin on any Rate Determination Date shall
immediately result in a corresponding change to the Interest Rate
applicable to each Revolving Credit Loan or Term Loan outstanding on
such Rate Determination Date.
(c) Each Base Rate Loan shall bear interest on the outstanding
principal amount thereof, for each day from the date such Base Rate Loan is made
and continuing while outstanding and unpaid, at a rate equal to the sum of (i)
the Base Rate, PLUS (ii) the
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Applicable Margin. Accrued interest shall be payable on each applicable Interest
Payment Date. The Base Rate shall be adjusted automatically and as of the
effective date of any change in the Base Rate. Interest on Base Rate Loans shall
be calculated on the basis of a year of 365/366 days for the actual number of
days elapsed. Any overdue principal of, and to the extent permitted by
applicable law, overdue interest on, any Base Rate Loan shall bear interest,
payable on demand, for each day until paid at a rate equal to the Default Rate
for such day.
(d) Each Eurodollar Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date such Eurodollar
Rate Loan is made and continuing while outstanding and unpaid, at a rate equal
to the sum of (i) the Eurodollar Rate, PLUS (ii) the Applicable Margin. Such
interest shall be payable on each applicable Interest Payment Date. Interest on
Eurodollar Rate Loans shall be calculated on the basis of a year of 360 days and
30 day months. The Eurodollar Rate shall be adjusted automatically and as of the
effective date of any change in any Eurodollar Reserve Requirement, as
applicable. Any overdue principal of, and to the extent permitted by law,
overdue interest on, any Eurodollar Rate Loans shall bear interest, payable on
demand, for each day until paid at the rate or equal to the Default Rate for
such day.
(e) The Agent shall determine each Interest Rate applicable to
the Loans hereunder and its determination shall be conclusive in the absence of
manifest error.
SECTION 2.8 FEES.
(a) The Borrowers, upon execution of this Agreement, shall pay
to the Agent, for the ratable benefit of the Banks, a facility fee of $62,500.
(b) During the Commitment Period, the Borrowers shall pay to
the Bank a commitment fee at a rate of 1/4% per annum of the daily average
Available Commitment (calculated on the basis of a 365/366-day year for the
actual number of days elapsed); provided, that the aggregate Dollar amount
available to be drawn under outstanding Standy L/Cs shall be included as usage
in determining this commitment fee. Such commitment fee shall accrue on the
Available Commitment beginning on the date hereof and shall continue to accrue
thereafter through the Termination Date. The accrued commitment fee shall be
payable (i) quarterly in arrears on the last day of each Fiscal Quarter
(beginning with the Fiscal Quarter ending on December 31, 1997, and (ii) on the
Termination Date.
SECTION 2.9 PREPAYMENTS.
(a) OPTIONAL PREPAYMENTS. Subject in the case of any
Eurodollar Rate Loan to Section 2.13, the Borrowers may, at their option and
upon at least one (1) Business Day's notice to the Agent, prepay any Base Rate
Loans, or upon at least three
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(3) Business Days' notice to the Agent, prepay any Term Loans, in each case in
whole at any time, or in part from time to time in amounts aggregating at least
$100,000, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. In its notice of prepayment, the
Borrowers shall specify the date of prepayment and the amount of the prepayment.
Each such optional prepayment shall be applied to prepay ratably the Term Loans
of the Banks. Upon receipt of notice of a prepayment pursuant to this
subsection, the Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrowers. All prepayments shall be applied to
installments of principal of the Term Loan in the inverse order of their
maturity.
(b) MANDATORY PREPAYMENT. Upon notice to the Borrowers by the
Agent, the Borrowers shall prepay the Loans (together with any funding losses
and expenses and premiums required to be paid pursuant Section 2.13) or provide
cash to the Bank with respect to outstanding and undrawn Standby L/Cs on each
such date as and to the extent the outstanding balance of all Loans PLUS the
Dollar amount available to be drawn under outstanding Standby L/Cs exceeds the
Aggregate Commitment. Each such mandatory prepayment shall be applied to prepay
ratably the Loans of the Banks. Upon receipt of any prepayment pursuant to this
subsection, the Agent shall promptly notify each Bank of such Bank's ratable
share of such prepayment or cash held to fully collateralize such outstanding
Standby L/Cs.
SECTION 2.10 GENERAL PROVISIONS AS TO THE LOANS AND PAYMENTS AND
FUNDING OF LOANS.
(a) The Borrowers shall make each payment of principal of, and
interest on, the Loans and of each Bank's fees hereunder not later than 11:00
a.m. (Columbus, Ohio time) on the date when due, in federal or other funds
immediately available at the place where payment is due, to the Agent at the
Agent's address set forth in Section 11.4. The Agent shall distribute such
payments ratably to the Banks promptly upon receipt in like funds as received.
(b) Whenever any payment of principal of, or interest on, any
Loan or of such fees shall be due on a day which is not a Business Day, the day
for payment thereof shall be extended to the next succeeding Business Day. If
the date for any payment of principal is so extended or is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time
period.
(c) For the purpose of computing the Available Commitment, the
Agent and the Banks shall have the right, in their sole discretion, to treat as
outstanding Loans under this Agreement the unpaid amount of any interest, fees,
costs or expenses otherwise then due and payable hereunder and under the Notes
and the other Facility Documents;
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provided, however, that such interest, fees, costs or expenses shall not be
deemed to be outstanding Loans for purposes of Section 2.8(b).
(c) Upon receipt of each Bank's Note pursuant to Article IV,
the Agent shall forward such Note to such Bank.
SECTION 2.11 USE OF PROCEEDS. The Borrowers represent and agree that
(i) the proceeds of the Revolving Credit Loans made hereunder shall be used by
the Borrowers only for repayment of Debt and working capital and general
corporate purposes and with respect to Standby L/Cs, and (ii) the proceeds of
the Terms Loans made hereunder shall be used by the Borrowers only to fund (x)
capital expenditures permitted by this Agreement, and (y) acquisitions which
meet the following requirements:
(A) the Banks shall have been provided any information
requested in accordance with Section 6.2(c); and
(B) if the cost of the proposed acquisition would be in excess
of 25% of the Borrowers' Consolidated Tangible Net Worth at such time,
the prior consent of the Banks is obtained.
SECTION 2.12 LOAN ADMINISTRATION. The Banks shall have no obligation to
(i) advance or re-advance any sums or make any Loan, or (ii) issue any Standby
L/C, pursuant to terms of this Agreement at any time when a Default or an Event
of Default exists.
SECTION 2.13 FUNDING LOSSES. If the Borrowers make any payment of
principal with respect to any Eurodollar Rate Loan (including as a mandatory
prepayment pursuant to Section 2.9(b)) or any Eurodollar Rate Loan is converted
to a Base Rate Loan pursuant to this Agreement on any day other than the last
day of any Interest Period applicable thereto, or if the Borrowers fail to
borrow, prepay, convert or continue any Eurodollar Rate Loan after notice has
been given to the Agent in accordance with this Agreement, the Borrowers shall
reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including, without limitation, any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion, provided that such
Bank shall have delivered to the Borrowers a certificate as to the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error.
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ARTICLE III
STANDBY LETTERS OF CREDIT
-------------------------
SECTION 3.1 ISSUANCE OF STANDBY L/CS.
(a) REQUEST TO ISSUE. The Borrowers may request Bank One to
issue, extend or modify a Standby L/C by delivery to Bank One of a Standby L/C
Application completed to the satisfaction of Bank One, together with the
proposed form of such Standby L/C and such other certificates, documents and
other papers and information as Bank One may reasonably request.
(b) FORM AND EXPIRY. Each Standby L/C issued hereunder shall,
among other things, (i) be in such form requested by the Borrowers and shall be
acceptable to Bank One in its sole discretion, and (ii) have an expiry date
occurring (x) not later than one year after such Standby L/C's date of issuance,
and (y) not later than the Termination Date. If the Commitment is terminated,
not later than such termination, all outstanding Standby L/Cs shall be returned
to Bank One or the Borrowers shall provide cash to the Agent, for the ratable
benefit of the Banks, to fully collateralize all outstanding Standby L/Cs. Each
Standby L/C Application and each Standby L/C shall be subject to the Uniform
Customs and, to the extent not subject to the Uniform Customs and, to the extent
not inconsistent therewith, the laws of the State of Ohio.
(c) PROCEDURE FOR OPENING STANDBY L/CS. Upon receipt of any
Standby L/C Application and the requested form of the Standby L/C from the
Borrowers, Bank One will review such Standby L/C Application and the other
certificates, documents, information and papers delivered to Bank One in
connection therewith, in accordance with its customary procedures and shall
promptly notify the Borrowers of its decision whether to issue the Standby L/C
and, if its decision is to issue the Standby L/C on the terms and in the form
requested, open such Standby L/C by issuing the original of such Standby L/C to
the beneficiary thereof and by furnishing a copy thereof to the Borrowers.
(d) PAYMENTS. The Borrowers agree (i) to reimburse Bank One
forthwith upon its demand and otherwise in accordance with the terms of the
Standby L/C Application relating thereto, for any expenditure or payment made by
Bank One under or in connection with any Standby L/C and (ii) to pay interest on
any unreimbursed portion of any such payment from the due date of any such
payment until reimbursement in full thereof at a rate per annum equal to (x)
prior to the date which is one Business Day after the date on which Bank One
demands reimbursement from the Borrowers for such payment, the rate which would
then be payable on any outstanding Revolving Credit Loan when no Event of
Default is existing, and (y) thereafter, the rate which would then be payable on
any outstanding Revolving Credit Loan during the existence of an Event of
Default.
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(e) STANDBY L/C FEES. In lieu of any letter of credit
commissions and fees provided for in any Standby L/C Application (other than
standard issuance, amendment and negotiation fees), the Borrowers agree to pay
Bank One, for the ratable benefit of the Banks, with respect to each Standby L/C
a nonrefundable Standby L/C fee of 1.0% per annum of the face amount of each
Standby L/C, payable in advance not later than the date of issuance thereof. In
addition, Bank One shall charge and retain for its own account its standard
issuance, amendment and negotiation fees, if any, with respect to the issuance
and administration of the Standby L/Cs.
SECTION 3.2 PARTICIPATION OF L/CS.
(a) PURCHASE BY NCBC. NCBC shall be deemed to have purchased
from Bank One participations in all Standby L/Cs issued pursuant to this
Agreement or which are currently outstanding which may hereafter be renewed or
otherwise extended or modified. Such participations shall be in an amount equal
to the Revolving Credit Loan Commitment Percentage for NCBC. All interest
thereon and all fees and commissions, other than Bank One's standard issuance,
amendment and negotiation fees, with respect to the issuance or renewal of such
Standby L/Cs shall be shared ratably by the Banks in accordance with their
respective Revolving Credit Loan Commitment Percentage.
(b) AMENDMENT OF L/C. If any such Standby L/C is amended
whereby the amount is increased or decreased, each Bank's share of participation
shall be increased or decreased accordingly to its Revolving Credit Loan
Commitment Percentage.
(c) PAYMENTS. If the Borrowers do not immediately reimburse
Bank One for amounts funded under draws under Standby L/Cs, NCBC shall make
payment to Bank One in an amount equivalent to its participation in the Standby
L/Cs at Bank One's address set forth in Section 11.4 hereof, and in any event
not later than the time of payment provided for in the terms and conditions of
the applicable Standby L/C Applications. NCBC's obligation to purchase such
participations shall be primary, and not subject to any condition, precedent or
otherwise, except the issuance of the subject Standby L/C.
Until payment of NCBC's participation to Bank One, Bank One shall be
entitled to all amounts of credits received by Bank One or either Bank from the
Borrowers, whether by voluntary payment, realization upon any security or
exercise of the right of setoff, or by payment from any source, except, that
upon default of the Borrowers, all payments received by either Bank shall be
applied in the proportion set forth in Section 8.2.
(d) NO LIABILITY. Bank One shall not be liable to NCBC for any
action taken or omitted with respect to the Standby L/Cs unless caused by its
own gross negligence or willful misconduct. Bank One shall exercise the same
care as in dealing with its own letters of credit, but shall not be responsible
in any manner to ascertain or
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inquire as to the financial condition of the Borrowers, or the Borrowers'
authority to execute the Standby L/C Applications, or the existence or possible
existence of any default under the Standby L/C Applications.
SECTION 3.3 FURTHER ASSURANCES. The Borrowers hereby agree, from time
to time, to do and perform any and all acts and to execute any and all further
instruments reasonably requested by Bank One and/or the Agent to more fully
effect the purposes of this Agreement and the issuance of Standby L/Cs
hereunder, and further agree to execute any and all instruments reasonably
requested by Bank One and/or the Agent in connection with the obtaining and/or
maintaining of any insurance coverage, if any, applicable to any Standby L/C.
SECTION 3.4 OBLIGATIONS ABSOLUTE. The Standby L/C payment obligations
of the Borrowers under this Agreement and the Standby L/C Applications shall be
unconditional and irrevocable and shall be paid strictly in accordance with the
terms of this Agreement and the Standby L/C Applications under all
circumstances, including the following:
(a) the existence of any claim, setoff, defense or other right
which the Borrowers may have at any time against any beneficiary, or any
transferee, of any Standby L/C (or any Person for whom any such beneficiary or
any such transferee may be acting), the Banks, or any other Person, whether in
connection with this Agreement, the Standby L/C Applications, the transactions
contemplated herein and therein, or any unrelated transaction;
(b) any statement or any other document presented under any
Standby L/C proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect;
(c) payment by Bank One under any Standby L/C against
presentation of a draft or certificate which does not comply with the terms of
such Standby L/C, provided that Bank One has made such payment to the
beneficiary set forth on the face of such Standby L/C, as the case may be, and
Bank One has not made such payment negligently or with willful misconduct; or
(d) any other circumstances or happening whatsoever, whether
or not similar to any of the foregoing.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.1 CONDITIONS TO INITIAL TRANSACTION. The agreement of the
Banks to make the initial transaction (whether such transaction be a Revolving
Credit Loan, a Term Loan
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or the issuance of a Standby L/C) hereunder on any date is subject to the
satisfaction of the following conditions precedent:
(a) FACILITY DOCUMENTS. The Agent shall have received (i) this
Agreement, executed and delivered by duly authorized officer of each Borrower,
(ii) the Revolving Credit Loan Notes, conforming to the requirements hereof and
executed and delivered by a duly authorized officer of each Borrower, (iii) if
such initial transaction is a Term Loan, the Term Loan Notes, conforming to the
requirements hereof and executed and delivered by a duly authorized officer of
each Borrower, (iv) if such initial transaction is a Standby L/C, a Standby L/C
Application, conforming to the requirements hereof and executed and delivered by
a duly authorized officer of each Borrower, and (v) each of the other Facility
Documents, conforming to the requirements hereof and executed and delivered by a
duly authorized officer or representative of each party thereto.
(b) CONSENTS. The Agent shall have received true copies (in
each case certified as to authenticity on such date by such Person as may be
appropriate or may be reasonably required by the Agent) of all documents and
instruments, including all consents, authorizations and filings, required or
advisable under any Requirements of Law or by any Contractual Obligation in
connection with the execution, delivery, performance, validity and
enforceability of this Agreement, the Notes and the other Facility Documents,
and such consents, authorizations and filings shall be reasonably satisfactory
in form and substance to the Agent and its counsel and be in full force and
effect.
(c) CORPORATE/ENTITY DOCUMENTS. The Agent shall have received
true and complete certified copies of the each Borrower's articles (certificate)
of incorporation (formation), code of regulations (by-laws), operating agreement
or other governing documents, and a copy of the resolutions (in form and
substance satisfactory to the Agent) of the Board of Directors (or other
governing Person) of each Borrower authorizing (i) the execution, delivery and
performance of this Agreement, the Notes and the other Facility Documents, as
applicable, (ii) the consummation of the transactions contemplated hereby and
thereby, (iii) the borrowing and other financial transactions provided for
herein, and (iv) the documents provided for in this Agreement, certified by the
secretary or an assistant secretary (or other appropriate representative) of
each Borrower. Such certificate shall state that the resolutions set forth
therein have not been amended, modified, revoked or rescinded as of the date
hereof.
(d) GOOD STANDING CERTIFICATES. The Agent shall have received
copies of certificates dated as of a recent date from the Secretary of State, or
other appropriate authority of such jurisdiction, evidencing the good standing
(or comparable status) of each Borrower in the jurisdiction of its incorporation
(formation) and the State of Ohio.
(e) INCUMBENCY CERTIFICATES. The Agent shall have received a
certificate of the secretary or an assistant secretary (or other appropriate
representative) of each
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Borrower as to the incumbency and signature of the officer(s) or other
representatives of each Borrower executing this Agreement, the Notes, the other
Facility Documents and any certificate or other documents to be delivered
pursuant hereto or thereto.
(f) UCC SEARCHES; RELEASE OF EXISTING LIENS. The Agent shall
have received (i) appropriate UCC security interest searches which name each
Borrower (and any recent predecessor name of any Borrower), as a "debtor"; and
(ii) all filing receipts, acknowledgments or other evidence satisfactory to it
evidencing any recordation or filing necessary to release all Liens (except
Liens permitted hereby).
(g) FINANCIAL INFORMATION. The Agent shall have received a
copy of each of the financial statements referred to in Section 5.7.
(h) NO LITIGATION. No suit, action, investigation, inquiry or
other proceeding (including, without limitation, the enactment or promulgation
of a statute or rule) by or before any arbitrator or any Governmental Authority
shall be pending and no preliminary or permanent injunction or order by a state
or federal court shall have been entered (i) in connection with this Agreement,
the Notes, the other Facility Documents or any of the transactions contemplated
hereby or thereby, or (ii) which, in the reasonable judgment of the Banks, would
have a Material Adverse Effect.
(i) NO VIOLATION. The consummation of the transactions
contemplated hereby and by the Notes and the other Facility Documents shall not
contravene, violate or conflict with, nor involve the Agent or any Bank in a
violation of, any Requirement of Law.
(j) LEGAL OPINIONS. The Bank shall have received the executed
legal opinion of Xxxxx, Day, Xxxxxx & Xxxxx, legal counsel to each Borrower,
each in form and substance satisfactory to the Agent with respect to the
transactions contemplated hereby.
(k) INSURANCE CERTIFICATES. The Bank shall have received the
certificates of insurance referred to in Section 6.8.
(l) PAYMENT OF DEBT. The Borrowers shall have repaid all Debt
of the Borrowers, except for (x) Debt owed to the former shareholders of ESI and
ESII, (y) Debt owed to Xxxxx X. Xxxxx, Xxxxx X. Black and the Xxxxx X. Xxxxx and
Xxxxx X. Black 1994 Irrevocable Trust, UA dated April 19, 1994 pursuant to
promissory notes dated October 29, 1997 which require principal payments of $1
million on December 15, 1997 and $4,200,000 on April 14, 1998, and (z) a
mortgage loan with respect to the principal facility of ESI in Nashville,
Tennessee evidenced by a promissory note of ESI with an outstanding balance as
of October 31, 1997 of not more than $480,000.
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SECTION 4.2 CONDITIONS TO EACH TRANSACTION.
(a) The agreement of the Banks to make any transaction
(whether such transaction be a Revolving Credit Loan, a Term Loan or the
issuance of a Standby L/C, and including, without limitation, the initial
Revolving Credit Loan, Term Loan or Standby L/C) hereunder on any date is
subject to the satisfaction of the following conditions precedent as of the date
such transaction is requested to be made:
(i) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties (except for the representations and
warranties as set forth in Section 5.15) made by each Borrower in or
pursuant to this Agreement, the Notes or any other Facility Document
delivered in connection herewith or therewith shall be true and correct
in all material respects on and as of such date as if made on and as of
such date unless stated to relate to a specific earlier date.
(ii) NO DEFAULT. No Event of Default and no Default
shall have occurred and be continuing on such date or after giving
effect to the transaction requested by the Borrowers to be made on such
date.
(iii) NO LITIGATION. No litigation, investigation or
proceeding before or by any arbitrator or Governmental Authority shall
be continuing or threatened against any Borrower questioning the
enforceability of or any Borrower's authority to enter into this
Agreement, the Notes or the other Facility Documents.
(iv) ADDITIONAL DOCUMENTS. The Agent shall have
received each additional document, instrument or item of information
reasonably requested by the Agent, including, without limitation,
appropriate Term Loan Notes if the transaction is the making of a Term
Loan or an appropriate Standby L/C Application if the transaction is
the issuance of a Standby L/C.
(v) ADDITIONAL MATTERS. All corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement, the
Notes and the other Facility Documents shall be reasonably satisfactory
in form and substance to the Agent.
(b) Each Notice of Borrowing and Standby L/C Application
submitted by the Borrowers hereunder shall constitute a representation and
warranty by each Borrower to the Agent and the Banks as of the date of such
transaction that the conditions contained in this Section 4.2 have been
satisfied.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Borrower represents and warrants to the Banks that:
SECTION 5.1 GOOD STANDING AND QUALIFICATION. Each of the Borrowers (i)
is duly organized, validly existing and in good standing (or comparable status)
under the laws of the jurisdiction of its incorporation or formation, (ii) has
all requisite power and authority to own and operate its properties and to carry
on its business as presently conducted, (iii) is duly qualified as a foreign
corporation (or other entity) to do business in and is in good standing (or
comparable status) under the laws of each jurisdiction where, by the nature of
its business or because of the character of the properties owned or leased by it
or the transaction of its business, failure to be so qualified would have a
Material Adverse Effect or where failure to qualify would affect the ability of
the Borrower to enforce any of its material rights, and (iv) is in compliance
with all Requirements of Law except to the extent that the failure to comply
therewith would not, in the aggregate, have a Material Adverse Effect and would
not materially and adversely affect the ability of the Borrower to perform its
obligations under this Agreement and all other Facility Documents.
SECTION 5.2 AUTHORITY. Each of the Borrowers has full power and
authority (i) to enter into this Agreement and all other Facility Documents,
(ii) to make the borrowings contemplated by this Agreement, (iii) to execute,
deliver and perform this Agreement, the Notes and the other Facility Documents
and to incur the obligations provided for herein and therein, all of which have
been duly authorized by all necessary and proper corporate action. No consent,
waiver or authorization of, or filing with, any Person (including without
limitation any Governmental Authority), is required to be made or obtained by
any Borrower in connection with the borrowings hereunder or the execution,
delivery, performance, validity or enforceability of this Agreement and all
other Facility Documents.
SECTION 5.3 BINDING AGREEMENTS. This Agreement constitutes, and the
Notes and all other Facility Documents, when executed and delivered pursuant
hereto for value received, shall constitute, the valid and legally binding
obligations of each Borrower, enforceable in accordance with their respective
terms, except as enforcement of such terms may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, or similar laws
affecting creditors' rights generally, provided, however, that each Borrower
represents and warrants that no proceedings under such laws exist as of the date
of this Agreement, or (ii) equitable principles which may limit the availability
of the remedy of specific performance or other equitable remedies.
SECTION 5.4 LITIGATION. There are no actions, suits, investigations or
administrative proceedings of or before any court, arbitrator or Governmental
Authority, pending or, to the knowledge of the Borrowers, threatened against any
Borrower or any of their
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respective properties or assets which: (i) either in any case or in the
aggregate, (x) an unfavorable outcome for any such Borrower is probable (as used
in this context, "probable" means, as reasonably determined by the Required
Banks, the prospects of the claimant not succeeding are judged to be extremely
doubtful and the prospects for success by any such Borrower in its defense are
judged to be slight), and (y) if so adversely determined, would have a Material
Adverse Effect; or (ii) question the validity of this Agreement or any other
Facility Documents or any action to be taken in connection with the transactions
contemplated hereby and thereby.
SECTION 5.5 NO CONFLICTING LAW OR AGREEMENTS. The execution, delivery
and performance by and of each Borrower of this Agreement and all other Facility
Documents: (i) do not and will not violate any Requirement of Law; (ii) do not
and will not violate any order, decree or judgment by which any Borrower is
bound; (iii) do not and will not violate or conflict with, result in a breach of
or constitute (with notice, lapse of time, or otherwise) a default under any
material agreement, mortgage, indenture or contract to which any Borrower is a
party, or by which any Borrower's properties are bound, which violation would
have a Material Adverse Effect; or (iv) do not and will not result in the
creation or imposition of any lien, security interest, charge or encumbrance of
any nature whatsoever upon any property or assets of any Borrower.
SECTION 5.6 TAXES. With respect to all taxable periods, each of the
Borrowers has filed all tax returns which are required to be filed and all
federal, state, municipal, franchise and other taxes shown to be due and payable
on such filed returns have been paid or have been reserved against, as required
by GAAP, and each of the Borrowers knows of no unpaid assessment against it.
SECTION 5.7 FINANCIAL STATEMENTS. The Borrowers have heretofore
delivered to the Banks (i) the audited consolidated annual balance sheet of the
Borrowers as of June 30, 1997 and the related consolidated statements of income,
shareholders' equity and cash flows for the Fiscal Year then ended; and (ii) the
unaudited consolidated balance sheet of the Borrowers as of the end of the
Fiscal Quarter ending September 30, 1997 and the related unaudited consolidated
statements of income, changes in shareholders' equity and cash flows for the
three (3) months then ended. Such financial statements, with accompanying
footnotes (if any), fairly present the financial condition, results of
operations and cash flows of the Borrowers, on a consolidated basis, as of the
dates and for the periods referred to and have been prepared in accordance with
GAAP consistently applied by the Borrowers throughout the periods involved, with
such quarterly financial statements being subject to normal year-end adjustments
and the omission of footnotes. The financial statements referred to in this
Section 5.7 do not contain any untrue statement of a material fact or omit a
material fact necessary to make the statements contained therein or herein not
misleading.
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SECTION 5.8 ADVERSE DEVELOPMENTS. Since the date of the financial
statements most recently furnished to the Banks, there has been no change in the
business, prospects, operations or condition, financial or otherwise, of any of
the Borrowers or any of their respective properties or assets which would have a
Material Adverse Effect.
SECTION 5.9 EXISTENCE OF ASSETS AND TITLE THERETO. Each of the
Borrowers has good and marketable title to its properties and assets, including
the properties and assets reflected in the financial statements referred to
herein. Such properties and assets are not subject to any Lien except as
expressly permitted under the terms of this Agreement.
SECTION 5.10 REGULATIONS S,T,U OR X. None of the Borrowers is engaged,
nor will any Borrower engage, principally or as one of its important activities,
in the business of extending credit for the purpose of "purchasing" or
"carrying" any "margin stock" under Regulation U of the Board of Governors of
the Federal Reserve System as now or from time to time in effect. No part of the
proceeds of the borrowings hereunder will be used, directly or indirectly, for
the purpose of "purchasing" or "carrying" any "margin stock". The terms
"purchasing," "carrying" and "margin stock" shall be as defined in Regulation U
promulgated by the Board of Governors of the Federal Reserve System. No part of
the proceeds of the borrowings hereunder will be used, directly or indirectly,
for any purpose which violates, or which is inconsistent with, the provisions of
Regulations S, T, U or X of said Board of Governors. If requested by the Agent,
the Borrowers shall furnish to the Banks a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in said Regulation U to the
foregoing effect.
SECTION 5.11 COMPLIANCE. No Default nor Event of Default has occurred
or is existing. None of the Borrowers is in default with respect to any order,
writ, injunction or decree of any court or of any federal, state, municipal or
other Governmental Authority or in violation of any Requirement of Law to which
any of them or their respective properties are subject, which default or
violation might have a Material Adverse Effect. None of the Borrowers are in
default in the payment or performance of any of their respective obligations or
in the performance of any Contractual Obligation to which any of them is a party
or by which any of them or any of their respective assets or properties may be
bound, which default might have a Material Adverse Effect. None of the Borrowers
has failed to obtain any licenses, permits, franchises or other governmental or
environmental authorizations necessary to the ownership of their respective
properties or to the conduct of their respective businesses, which violation or
failure might have a Material Adverse Effect.
SECTION 5.12 LEASES. Each of the Borrowers enjoys quiet and undisturbed
possession under all leases under which each is operating, and all such leases
are valid and subsisting, and not in default.
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SECTION 5.13 PENSION PLANS. No ERISA Event has occurred with respect to
any Plan of any of the Borrowers or any member of its ERISA Group. The PBGC has
not made a determination that, with respect to any Plan of any Borrower or any
member of its ERISA Group, an event or condition has occurred which constitutes
grounds under Section 4042 of ERISA for the termination of, or for the
appointment of a trustee to administer, any such Plan. None of the Borrowers nor
any member of its ERISA Group is in violation of any laws, ordinances,
governmental rules or regulations to which it is subject, including without
limitation any laws, rulings or regulations relating to ERISA or Section 4975 of
the Code, which violation might have a Material Adverse Effect.
SECTION 5.14 INVESTMENT COMPANY; HOLDING COMPANY. None of the Borrowers
is (i) an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
(ii) a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (iii) subject to any regulatory scheme which
restricts its ability to incur Debt.
SECTION 5.15 NO INSOLVENCY. On the date hereof and after giving effect
to all Debt of the Borrowers (including the Loans), (i) each Borrower will be
able to pay its obligations as they become due and payable; (ii) the present
fair saleable value of each Borrower's assets exceeds the amount that will be
required to pay its probable liability on its obligations as the same become
absolute and matured; (iii) the sum of each Borrower's property at a fair
valuation exceeds each Borrower's liabilities; and (iv) each Borrower will have
sufficient capital to engage in its business.
SECTION 5.16 ENVIRONMENTAL MATTERS.
(a) None of the Borrowers has used Hazardous Materials on,
from or affecting any real property owned, leased or used by any Borrower (the
"Real Property") in any manner which violates any Environmental Laws governing
the use, storage, treatment, transportation, manufacture, refinement, handling,
production or disposal of Hazardous Materials, which violation would have a
Material Adverse Effect, and, to the best knowledge of each Borrower, no present
or prior owner of the Real Property or any tenant, subtenant, occupant, prior
tenant, prior subtenant or prior occupant has used Hazardous Materials on, from
or affecting the Real Property in any manner which violates any Environmental
Laws governing the use, storage, treatment, transportation, manufacture,
refinement, handling, production or disposal of Hazardous Materials.
(b) None of the Borrowers has received any notice of any
violation of any Environmental Laws governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or disposal of
Hazardous Materials, and there have been no actions commenced or, to the best
knowledge of the Borrowers, threatened by any party for noncompliance therewith.
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SECTION 5.17 ACCURACY OF INFORMATION. All information, reports and
other papers and data (including without limitation, copies of all filings made
with all Governmental Authorities) furnished heretofore or contemporaneously
herewith by or on behalf of the Borrowers to the Agent, the Banks or any Person
furnishing an opinion required to be delivered hereunder for purposes of or in
connection with this Agreement and the other Facility Documents and the
transactions contemplated hereby and thereby, is, and all other such information
hereafter furnished by or on behalf of the Borrowers to the Agent, the Banks or
any Person furnishing an opinion required to be delivered hereunder will be,
true and accurate in every material respect on the date as of which such
information is dated or certified.
SECTION 5.18 ASSETS FOR CONDUCT OF BUSINESS. Each of the Borrowers
possesses adequate assets, patents, patent applications, copyrights, trademarks,
servicemarks, and trade names or licenses thereto, to continue to conduct their
respective businesses as heretofore conducted, without any material conflict
with the rights of others, except that the failure to possess such asset or
assets, in the aggregate, would not have a Material Adverse Effect.
SECTION 5.19 TRADE RELATIONS. There exists no actual or threatened
termination, cancellation or limitation of, or any modification or change in,
the business relationship of any Borrower with any customer or any group of
customers whose purchases individually or in the aggregate are material to the
business of any Borrower and there exists no present condition or state of facts
or circumstances known to any Borrower that would have a Material Adverse Effect
or prevent any Borrower from conducting their respective businesses after the
consummation of the transactions contemplated by this Agreement in substantially
the same manner in which such business has heretofore been conducted.
SECTION 5.20 CONTINGENT OBLIGATIONS. Each of the Borrowers has no
Contingent Obligations other than those set forth on Schedule 5.20.
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
So long as the Borrowers may borrow under this Agreement (including
pursuant to Standby L/Cs) and until payment in full of the Notes, any L/C
Funding and all other amounts and obligations owing to the Banks hereunder and
under the other Facility Documents, each of the Borrowers shall, unless the
Required Banks otherwise consent in writing:
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SECTION 6.1 FINANCIAL STATEMENTS. Furnish to the Banks:
(a) as soon as available, but in any event within 90 days
after the end of each Fiscal Year of the Borrowers, a copy of the audited
consolidated balance sheet of the Borrowers as at the end of such Fiscal Year
and the related audited consolidated statements of income and changes in
shareholders' equity and cash flows for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous year, together with the
opinion of independent certified public accountants of nationally recognized
standing, which opinion shall not contain a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit or qualification which would affect the computation of financial covenants
contained herein other than a qualification for consistency due to a change in
the application of GAAP with which the Borrowers' independent certified public
accountants concur; and
(b) as soon as available, but in any event within 60 days
after the end of each Fiscal Quarter, a copy of the unaudited consolidated
balance sheet of the Borrowers as at the end of such Fiscal Quarter and the
related unaudited consolidated statements of income and changes in shareholders'
equity and cash flows for such Fiscal Quarter and for the portion of the
Borrowers' Fiscal Year ended at the end of such Fiscal Quarter, setting forth in
each case in comparative form the figures for the corresponding Fiscal Quarter
and corresponding portion of the Borrowers' previous Fiscal Year, all certified
(subject to normal year-end adjustments and the omission of footnotes) as to
fairness of presentation, GAAP and consistency by an Authorized Officer.
SECTION 6.2 CERTIFICATES; OTHER INFORMATION. Furnish to the Banks:
(a) concurrently with the delivery of each annual financial
statement referred to in Section 6.1(a) and each quarterly financial statement
referred to in Section 6.1(b), a certificate of an Authorized Officer of each
Borrower (in such form as shall be reasonably acceptable to the Banks) stated to
have been made after due examination by such Authorized Officer (i) stating
whether any Default or Event of Default exists on the date of such certificate
and, if any Default or Event of Default then exists, setting forth the details
thereof and the action which the applicable Borrower is taking or proposes to
take with respect thereto, (ii) setting forth in detail the calculations
required to establish whether the Borrowers were in compliance with financial
covenants set forth in Section 7.6 on the date of such financial statements, and
(iii) stating that the representations and warranties expressed in Article V
(other than Section 5.15) are true, correct and complete in all material
respects on and as of the date of such certificate (unless stated to relate to a
specific earlier date) and, if any such representation or warranty is not so
true, correct and complete, setting forth the details thereof;
(b) promptly after the same are sent, copies of all quarterly
financial statements, reports and notices which any Borrower sends to its
shareholders as
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shareholders, and promptly after the same are filed, copies of all financial
statements and reports (including, without limitation, reports on Forms 10-K,
10-Q and 8-K), which any Borrower may make to, or file with, and copies of all
material notices any Borrower receives from, the Securities and Exchange
Commission or any public body succeeding to any or all of the functions of the
Securities and Exchange Commission; and
(c) promptly, on reasonable notice to the Borrowers, such
additional financial and other information as a Bank or the Agent may from time
to time reasonably request.
SECTION 6.3 PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise
satisfy, at or before maturity or before they become delinquent, as the case may
be, all its Debt, including without limitation all amounts due under the Notes
and hereunder, and other material obligations of whatever nature, except for any
Debt or other obligations (including any obligations for taxes), when the amount
or validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of the Borrowers.
SECTION 6.4 MAINTENANCE OF RIGHTS, PERMITS, ETC; COMPLIANCE WITH LAW.
(x) Preserve, renew and keep in full force and effect all, (y) take all
reasonable action to maintain all, and (z) not sell, transfer or otherwise
dispose of any, rights, privileges, contracts, licenses, permits, copyrights,
patents, trademarks, trade names and franchises necessary or desirable in the
normal conduct of its business if the same would have a Material Adverse Effect;
and comply with all Requirements of Law.
SECTION 6.5 INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of record and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities, subject in
the case of interim statements to year-end audit adjustments; and permit
representatives of the Agent and the Banks (at the Borrowers' expense) to (i)
visit and inspect any of its properties, and examine and make abstracts from any
of the books and records at any reasonable time and as often as may reasonably
be requested, and (ii) discuss the business, operations, properties and
financial and other condition of each Borrower with appropriate officers of each
Borrower and, if notice thereof is given to any Borrower prior to the date of
such discussions and provided such Borrower shall be entitled to participate in
such discussions, with its independent certified public accountants.
SECTION 6.6 NOTICES. Promptly give notice to the Agent and the Banks:
(a) of the occurrence of any Default or Event of Default;
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(b) of any (i) default under any loan, letter of credit
agreement or acceptance agreement, (ii) default under any other Contractual
Obligations that would enable the obligee of such obligations to compel any
Borrower to immediately pay all amounts owing thereunder or otherwise accelerate
payments thereunder and which would have a Material Adverse Effect, or (iii)
litigation, investigation or proceeding which may exist at any time between any
Borrower and any Governmental Authority, which (x) an unfavorable outcome for
any such Borrower is probable (as used in this context, "probable" means, as
reasonably determined by the Required Banks, the prospects of the claimant not
succeeding are judged to be extremely doubtful and the prospects for success by
any such Borrower in its defense are judged to be slight), and (y) if so
adversely determined, would have a Material Adverse Effect;
(c) of any litigation or proceeding affecting or threatened
against any Borrower (i) in which the amount involved is $1 million or more, or
(ii) in which injunctive or similar relief is sought;
(d) of the following events, as soon as possible and in any
event within thirty (30) days after the occurrence thereof: (i) the occurrence
of any Reportable Event with respect to any Plan of any Borrower or any member
of its ERISA Group with respect to which the PBGC has not waived the thirty (30)
day reporting requirement, or (ii) the institution of proceedings or the taking
or expected taking of any other action by PBGC or any Borrower or any member of
its ERISA Group to terminate or withdraw or partially withdraw from any Plan
under circumstances which could lead to material liability to the PBGC or, with
respect to a Multiemployer Plan, the Reorganization or Insolvency (as each such
terms are defined in ERISA) of the Plan and in addition to such notice, deliver
to the Agent and the Banks whichever of the following may be applicable: (A) a
certificate of an appropriate officer of such Borrower setting forth details as
to such Reportable Event and the action such Borrower proposes to take with
respect thereto, together with a copy of any notice of such Reportable Event
that may be required to be filed with PBGC, or (B) any notice delivered by PBGC
evidencing its intent to institute such proceedings or any notice to PBGC that
such Plan is to be terminated, as the case may be; and
(e) of any change relating to the business, operations,
property or financial or other condition of any Borrower which may have a
Material Adverse Effect.
Each notice pursuant to this Section 6.6 shall be accompanied by a
statement of an Authorized Officer setting forth details of the occurrence
referred to therein and stating what action the Borrowers proposes to take with
respect thereto.
SECTION 6.7 TAXES. Pay and discharge all taxes, assessments,
governmental charges and levies upon or collected by each of the Borrowers as
and when they become due and payable, unless, and only to the extent that, such
taxes, assessments,
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governmental charges and levies shall be contested in good faith by appropriate
proceedings and shall have been reserved against as required by GAAP, by any
Borrower.
SECTION 6.8 MAINTENANCE OF PROPERTY; INSURANCE. Keep all property
useful in and necessary to its business in good working order and condition,
ordinary wear and tear excepted; and shall keep its property continuously
insured with Required Property Insurance Coverage and maintain Required Public
Liability Insurance Coverage. All insurance shall be obtained and maintained
either by means of policies with generally recognized, responsible insurance
companies qualified to do business in the jurisdiction where such property is
located or pursuant to other arrangements satisfactory to the Banks. The
insurance to be provided may be by blanket policy. Each policy of insurance
shall be written so as not to be subject to cancellation or substantial
modification upon less than 30 days advance written notice to the Borrowers, and
each Borrower shall so inform the Agent and the Banks of the receipt, and
contents, of any such notice. The Borrowers shall deposit with the Agent
certificates or other evidence satisfactory to it that (i) the insurance
required hereby has been obtained and is in full force and effect, and (ii) all
premiums thereon have been paid in full. Prior to the expiration of any such
insurance, the Borrowers shall furnish the Agent with evidence satisfactory to
it that such insurance has been renewed or replaced and that all premiums
thereon have been paid in full. In the event any Borrower fails to provide,
maintain and keep in force the policies of insurance required by this Section
6.8, the Banks may procure such insurance or single-interest insurance for such
risk covering the Banks' interest and the Borrowers shall pay all premiums
thereon promptly upon demand by the Agent, together with interest thereon at the
highest rate then in effect under any Note.
SECTION 6.9 ERISA FUNDING REQUIREMENTS. Comply, and cause each member
of its ERISA Group to comply, with all funding requirements of ERISA with
respect to any Plan of each and/or any member of its ERISA Group.
SECTION 6.10 INDEMNIFICATION. Defend, indemnify and hold the Agent and
the Banks and any of their respective officers, directors, agents and employees
harmless against any and all loss, cost, expense (including the reasonable fees
and expenses of counsel), claims or actions relating to or arising out of this
Agreement, the Notes and the other Facility Documents, or any actual or proposed
use of proceeds of the Loans, regardless of whether or not the disbursement of
any Loans shall actually occur, unless any such loss, cost, expense, claim or
action are due to the gross negligence or willful misconduct of the Banks. The
provisions of this Section 6.10 shall survive the termination of this Agreement.
If any claim, action or proceeding is made or brought against the Agent
and/or the Banks or any such officers, directors, agents and employees in
respect of which indemnity may be sought hereunder, the Agent shall give notice
to the Borrowers of the claim, action or proceeding and upon such notice, at the
option of the Required Banks, (i) the Borrowers
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shall assume, at the Borrowers' expense, the defense of the action or proceeding
with legal counsel satisfactory to the Required Banks, (ii) the Borrowers shall
so assume the defense of the action or proceeding with the participation of the
Agent and/or the Banks, at the Borrowers' expense, in such defense, or (iii) the
Agent and/or the Banks shall assume the defense of the claim, action or
proceeding, at the Borrowers' expense; provided that the failure of the Agent to
give such notice shall not relieve the Borrowers from any of their obligations
under this Section 6.10 unless the failure prejudices the defense by the
Borrowers of the claim, action or proceeding.
SECTION 6.11 PERFORMANCE UNDER FACILITY DOCUMENTS. Perform all
obligations required to be performed by it under the terms of this Agreement and
the other Facility Documents and any other agreements now or hereafter existing
or entered into between the Borrowers and the Banks.
SECTION 6.12 CORPORATE EXISTENCE; FOREIGN QUALIFICATION. Except in
connection with transactions permitted by Section 7.2, do or cause to be done at
all times all things necessary to: (i) maintain and preserve its existence, as a
corporation or other entity, as the case may be; (ii) be duly qualified to do
business and be in good standing as a foreign corporation or other entity in
each jurisdiction where failure to do so will have a Material Adverse Effect;
and (iii) comply with all Contractual Obligations where failure to do so will
have a Material Adverse Effect.
SECTION 6.13 MAINTENANCE OF BUSINESS. Maintain the general character of
the business of the Borrowers as presently conducted.
SECTION 6.14 ENVIRONMENTAL MATTERS.
(a) Each of the Borrowers shall keep or cause the Real
Property to be free of Hazardous Materials except to the extent that such
Hazardous Materials are stored and/or used in material compliance with all
applicable Environmental Laws; and, without limiting the foregoing, each of the
Borrowers shall not cause or permit the Real Property to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose of, transfer,
produce or process Hazardous Materials, except in material compliance with all
applicable Environmental Laws, nor shall any Borrower knowingly cause or permit,
as a result of any intentional or negligent act or omission on the part of the
Borrower, or any tenant, subtenant or occupant, a material release of Hazardous
Materials onto the Real Property; and
(b) Each of the Borrowers shall (x) conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal and
other actions necessary to clean up and remove any Hazardous Materials on,
under, from or affecting the Real Property in accordance with all applicable
Environmental Laws, to the satisfaction of the Agent and in accordance with the
orders and directives of all Governmental
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Authorities and (y) defend, indemnify and hold harmless the Agent and the Banks,
their respective employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements, damages, costs or
expenses of whatsoever kind or nature, known or unknown, contingent or
otherwise, arising out of, or in any way relating to (A) the presence, disposal,
release or threatened release of any Hazardous Materials on, over and under,
from or affecting the Real Property or the soil, water, vegetation, buildings,
personal property, persons or animals thereon; and (B) any personal injury
(including wrongful death) or property damage (real or personal) arising out of
or relating to such Hazardous Materials including, without limitation,
attorneys' and consultants' fees, investigation and laboratory fees, court costs
and litigation expenses.
(c) The provisions of this Section 6.14 shall be in addition
to any and all other obligations and liabilities the Borrowers may have to the
Agent and the Banks at common law and shall survive (i) the repayment of all
sums due under the Notes and any other Facility Document and (ii) the
satisfaction of all other obligations of the Borrowers hereunder and under the
other Facility Documents.
SECTION 6.15 PRIMARY DEPOSITORY. Maintain its primary banking and
depository accounts with Bank One or its Affiliates.
SECTION 6.16 CHANGE IN GOVERNING DOCUMENTS. Give notice to the Banks of
any restatement, replacement or other change, amendment or modification of any
organizational and governing documents of (i) MPW Group at least 30 days prior
thereto, and (ii) any other Borrower prior thereto.
ARTICLE VII
NEGATIVE COVENANTS
------------------
So long as the Borrowers may borrow under this Agreement (including
pursuant to Standby L/Cs) and until payment in full of the Notes, any L/C
Funding and all other amounts and obligations owing to the Banks hereunder and
under the other Facility Documents, each Borrower shall not, unless the Required
Banks shall otherwise consent in writing:
SECTION 7.1 MORTGAGES AND PLEDGES. Create, incur, assume or suffer to
exist (i) any Lien upon or in any of its property or assets, whether now owned
or hereafter acquired except as specifically permitted under this Agreement, or
(ii) an agreement with any Person (other than the Banks) which prohibits or
restricts the granting of any such Lien of any kind in favor of the Banks,
except:
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(a) Liens securing taxes, assessments, fees or other
governmental charges or levies, or the claims of materialmen, mechanics,
carriers, warehousemen, landlords and other similar Persons;
(b) Liens incurred or deposits made in the ordinary course of
business (i) in connection with worker's compensation, unemployment insurance,
social security and other similar laws, or (ii) to secure the performance of
bids, tenders, sales, contracts, public or statutory obligations, customs,
appeal and performance bonds, or (iii) other similar obligations not incurred in
connection with the borrowing of money, the obtaining of advances or the payment
of the deferred purchase price of property;
(c) reservations, exceptions, encroachments, easements, rights
of way, covenants, conditions, restrictions, leases and other similar title
exceptions or encumbrances affecting Real Property, provided they do not in the
aggregate materially detract from the value of such properties or materially
interfere with their use in the ordinary conduct of Borrowers' business;
(d) Liens in favor of the Banks on a pro rata basis;
(e) purchase money Liens in an aggregate amount not to exceed
$1 million (as used herein, "purchase money Liens" shall mean Liens taken or
retained by the seller in connection with the sale of property to any Borrower
to secure all or part of its purchase price, which purchase price shall not
exceed the fair market value of such property);
(f) Liens in respect of judgements or awards with respect to,
which the Borrowers are, in good faith, prosecuting an appeal or proceeding for
review and with respect to which a stay of execution upon such appeal or
proceeding for review has been granted;
(g) notice filing by any creditor in respect of any operating
leases;
(h) a mortgage on the principal facility of ESI in Nashville,
Tennessee securing a promissory note of ESI with an outstanding balance as of
October 31, 1997 of not more than $480,000; and
(i) Liens in favor of Bank One with respect to the airplane
owned by MPW, Inc.
SECTION 7.2 MERGER, CONSOLIDATION, SALE AND ACQUISITION OF ASSETS.
Except for (x) in connection with acquisitions permitted by Section 2.11, and
(y) transactions with another Borrower, enter into any transaction of merger or
consolidation of any Borrower (or suffer any liquidation or dissolution), or
sell, lease or otherwise transfer all or any substantial part
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of its business or assets, whether now owned or hereafter acquired, or make any
material change in the method by which it conducts business, or acquire all or
any material part of the business assets of, any Person.
SECTION 7.3 CONTINGENT OBLIGATIONS. Assume, guarantee, endorse, sell
with recourse, contingently agree to purchase, discount, or otherwise become or
remain liable with respect to any Contingent Obligations or enter into any
agreement for the purchase or other acquisition of any product, materials or
supplies, or for transportation or for the payment for services, if in any such
case payment therefor is to be made regardless of the non-delivery of the
product, materials or supplies or the non-furnishing of the transportation or
services.
SECTION 7.4 TRANSACTIONS WITH AFFILIATES.
(a) Enter into any transactions, including without limitation,
the purchase, sale or exchange of property or the rendering of any service, with
any Affiliate (other than another Borrower), except (i) in the ordinary course
of and pursuant to the reasonable requirements of its business and upon fair and
reasonable terms no less favorable to such Borrower as would be obtained in an
arm's length transaction with a Person not an Affiliate, and (ii) those
transactions existing or contemplated as of the Closing Date.
(b) Make any loans or advances to any Affiliate (other than
another Borrower) in excess of an aggregate of $250,000 outstanding at any time.
SECTION 7.5 COMPLIANCE WITH ERISA. (a) Allow or suffer to exist any
Prohibited Transaction involving any Plan of any Borrower or any member of its
ERISA Group; (b) incur or suffer to exist any accumulated funding deficiency,
whether or not waived, involving any such Plan; or (c) allow any occurrence of
or suffer to exist any ERISA Event, or any other event or condition, that
presents a material risk of termination of any such Plan by the PBGC, if such
Prohibited Transaction, accumulated funding deficiency or ERISA Event would
result in a liability of any Borrower or any member of its ERISA Group to the
PBGC which would have a Material Adverse Effect.
SECTION 7.6 FINANCIAL COVENANTS.
(a) CONSOLIDATED TANGIBLE NET WORTH. Permit Consolidated
Tangible Net Worth to be less than $29,000,000, which amount shall increase (but
not decrease by any losses) quarterly on the last day of each Fiscal Quarter by
50% of Consolidated Net Income (determined at the end of each Fiscal Quarter for
such Fiscal Quarter), commencing with the Fiscal Quarter ending December 31,
1997.
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(b) RATIO OF CONSOLIDATED FUNDED DEBT TO CONSOLIDATED TANGIBLE
NET WORTH. Permit the ratio of Consolidated Funded Debt to Consolidated Tangible
Net Worth to exceed 1.25 to 1.00.
(c) COVERAGE RATIO. Permit the Coverage Ratio to be less than
1.50 to 1.00.
(d) CONSOLIDATED CAPITAL EXPENDITURES. Permit Consolidated
Capital Expenditures of the Borrowers to exceed $10 million in any Fiscal Year.
SECTION 7.7 DEBT RESTRICTION. Incur, assume, guarantee or
otherwise create any Debt other than:
(a) the Loans and Standby L/Cs provided for pursuant to this
Agreement;
(b) Debt relating to purchase money Liens permitted by Section
7.1(e);
(c) Debt not exceeding an aggregate of $6 million at any time,
which Debt is fully subordinated to the payment of Debt owed to the Banks; and
(d) Debt not exceeding an aggregate of $3 million at any time,
which Debt is assumed by any Borrower in connection with acquisitions permitted
by Section 2.11.
SECTION 7.8 INVESTMENTS. Except in connection with acquisitions
permitted by Section 2.11 and for Permitted Investments, hold, make or acquire
any Investment in any Person other than Investments existing as of the Closing
Date.
SECTION 7.9 LIMITATION ON SUBSIDIARIES. Create any Subsidiaries after
the Closing Date unless any such Subsidiary becomes a party to this Agreement
and a maker of all Notes, and the satisfaction of such other measures as may be
reasonably requested by the Required Banks.
SECTION 7.10 CHANGE IN FISCAL YEAR. Change its Fiscal Year.
SECTION 7.11 CHANGE IN ACCOUNTING PRACTICES. Permit any changes in it
accounting practices in effect as of the Closing Date unless (x) permitted by
GAAP (as GAAP is in effect as of the Closing Date) and (y) comparability of the
Borrowers' financial statements is maintained.
SECTION 7.12 SALE AND LEASEBACK. Enter into any arrangements whereby
any Borrower shall sell or transfer any of its property and then or within one
year thereafter, as lessee, rent or lease such property, other than for the
hangar facility of MPW, Inc. located at the Newark, Ohio airport.
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SECTION 7.13 DISPOSING OF NOTES/ACCOUNTS RECEIVABLE. Discount, sell or
otherwise dispose of its note or accounts receivable.
SECTION 7.14 SUBORDINATED DEBT. Make or permit any changes to or
modification of Debt subordinated to the payment of Debt owed to the Banks or
any documentation in connection with such subordinated Debt.
SECTION 7.15 RESTRICTED PAYMENTS. Declare or make any Restricted
Payment.
SECTION 7.16 DERIVATIVES OBLIGATIONS. Incur any Derivatives
Obligations.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
---------------------------
SECTION 8.1 EVENTS OF DEFAULT; REMEDIES. The occurrence of any of the
following shall constitute an "Event of Default" hereunder:
(a) Any Borrower fails to pay any principal, interest, fees or
any other amount payable under the Notes, hereunder or under any other Facility
Document in accordance with the terms thereof and hereof within 10 days after
such payment is due;
(b) Any Borrower (i) fails to observe or perform any other
term of the Notes, this Agreement, any Standby L/C Application or any other
Facility Document and such failure to observe or perform continues for more than
30 days after such failure shall first become known to any officer of any
Borrower, provided, however, that such 30 day cure period shall not apply to (w)
any such failure with respect to the covenants set forth in Article VII; (x) any
such failure which in the Required Bank's good faith opinion is incapable of
cure; (y) any such failure which has previously occurred and not thereafter
waived by the Banks or cured; or (z) any failure to maintain and keep in effect
any insurance required by any Facility Document; (ii) makes any materially
incorrect or misleading representation, warranty, or certificate to the Agent or
the Banks when made; or (iii) makes any materially incorrect or misleading
representation in any financial statement or other information delivered to the
Agent or the Banks;
(c) Any event or condition occurs which results in the
acceleration of the maturity of any Debt in excess of $250,000 or enables (or,
with the giving of notice, lapse of time or otherwise, would enable) the holder
of such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(d) A Reportable Event occurs that would permit the PBGC to
terminate any employee benefit plan of any Borrower or any member of its ERISA
Group, or the occurrence of an ERISA Event which shall not have been cured
within 60 days;
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(e) Any Borrower becomes insolvent or unable to pay its debts
as they become due;
(f) Any Borrower (i) makes an assignment for the benefit of
creditors; (ii) consents to the appointment of a custodian, receiver, or trustee
for itself or for a substantial part of its assets; or (iii) commences or
consents to any proceeding under any bankruptcy, reorganization, liquidation,
insolvency or similar laws of any jurisdiction;
(g) A custodian, receiver or trustee is appointed for any
Borrower , or for a substantial part of its assets, without its consent and is
not removed within 90 days after such appointment;
(h) Proceedings are commenced against any Borrower under any
bankruptcy, reorganization, liquidation, or similar laws of any jurisdiction,
and such proceedings remain undismissed for 90 days after commencement;
(i) Any judgment is entered against any Borrower, or any
attachment, levy or garnishment is issued against any property of any Borrower,
in excess of $250,000, and which judgment, attachment, levy or garnishment has
not been discharged or stayed within 30 days after issuance;
(j) an aggregate change of 20% or more of the shares or other
interests in MPW Group owned of record or beneficially by Xxxxx X. Xxxxx, his
wife, other members of his immediate family and/or trust(s) for the benefit of
any of the foregoing parties occurs because of such shares or interest being
sold, assigned, pledged, mortgaged, disposed of or otherwise encumbered or
transferred without the prior written consent of the Required Banks; or
(k) a Change in Control occurs.
Upon the happening of any of the foregoing Events of Default, the Agent shall
(x) if requested by the Required Banks, by notice to the Borrowers, terminate
all Commitments of the Banks to make further Loans or issues Standby L/Cs
hereunder, and (y) if requested by the Required Banks, by notice to the Borrower
declare all amounts owing under the Notes, this Agreement and all other Facility
Documents to be, and the same shall thereupon become, immediately due and
payable without presentment, demand, protest, or other notice of any kind, all
of which are hereby waived by the Borrower, and, in addition, the Borrowers
shall return, or cause to be returned, all outstanding Standby L/Cs to Bank One
or the Borrowers shall provide cash to the Agent, for the ratable benefit of the
Banks, to fully collateralize all outstanding Standby L/Cs which are not so
returned; provided that in the case of any of the Events of Default specified in
clauses 8.1(e), (f), (g) and (h) above with respect to any Borrower, without any
notice to the Borrowers or any other act by the Agent or the Banks, the
Commitments shall thereupon terminate and all
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amounts owing under the Notes, this Agreement and all other Facility Documents
shall become immediately due and payable without presentment, demand, protest,
or other notice of any kind, all of which are hereby waived by the Borrower.
Upon the happening of any of the foregoing Events of Default, the Agent and the
Banks shall have all of the rights and remedies provided by any law or
agreement. The Borrowers, jointly and severally, shall be liable to the Agent
and the Banks for all reasonable costs and expenses of every kind incurred in
the making or collection of amounts due hereunder and under the Notes and the
other Facility Documents, including, without limitation, reasonable attorneys'
fees and court costs. These costs and expenses shall include, without
limitation, any costs or expenses incurred by the Agent and the Banks in any
bankruptcy, reorganization, insolvency or other similar proceeding.
SECTION 8.2 APPLICATION OF PROCEEDS. Any moneys received by the Agent
and/or the Banks pursuant to the exercise of any remedies provided herein or in
the other Facility Documents or by law shall be applied in the following order
of priority:
First: the payment of each Bank and the Agent for all moneys
reasonably advanced by each for taxes, assessments, insurance,
costs incurred for the protection of any property of the
Borrowers and costs incurred in the collection thereof
(including, without limitation, reasonable attorneys' fees and
expenses);
Second: to collateralize all outstanding Standby L/Cs;
Third: the payment to the Banks in proportion to the Revolving Credit
Loan Commitment Percentage (or, if different, the percentage
that each Bank's outstanding Revolving Credit Loans and Term
Loans bears to the aggregate outstanding Revolving Credit
Loans and Term Loans of all Banks at such time) of all unpaid
interest, fees and other sums and/or charges (other than the
principal of the Loans) owing to the Banks hereunder and the
other Facility Documents;
Fourth: the payment to the Banks in proportion to the Revolving Credit
Loan Commitment Percentage (or, if different, the percentage
that each Bank's outstanding Revolving Credit Loans and Term
Loans bears to the aggregate outstanding Revolving Credit
Loans and Term Loans of all Banks at such time) of all unpaid
principal of Loans and unreimbursed L/C Fundings owing to the
Banks;
Fifth: To, or at the direction of, the Borrowers, or as a court of
competent jurisdiction otherwise directs.
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ARTICLE IX
THE AGENT
---------
SECTION 9.1 APPOINTMENT. Each Bank hereby irrevocably designates and
appoints Bank One as Agent of such Bank under this Agreement, each of the Notes
and the other Facility Documents, and each Bank hereby irrevocably authorizes
Bank One, as Agent for such Bank, to take such action on its behalf under the
provisions of this Agreement, the Notes and the other Facility Document and to
exercise such powers and perform such duties as are expressly delegated to Agent
by the terms of this Agreement, the Notes and the other Facility Documents,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, any
Note or any other Facility Documents, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Banks, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement, any Note or any other Facility Documents, or otherwise exist against
the Agent.
SECTION 9.2 DELEGATION OF DUTIES. The Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
SECTION 9.3 EXCULPATORY PROVISIONS. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement, any Note or any other
Facility Documents (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to the Banks for any
recitals, statements, representations or warranties made by the Borrowers or any
officer thereof contained in this Agreement, any Note or any other Facility
Documents or in any certificate, report, statement or other document referred to
or provided for in, or received by the Agent under or in connection with, this
Agreement, any Note or any other Facility Documents or for the value, or
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Facility Documents, or for any failure of any
Borrower to perform its obligations hereunder or thereunder. The Agent shall be
under no obligation to any Bank to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of, this
Agreement, any Note or any other Facility Documents, or to inspect the
properties, books or records of the Borrowers. The Agent shall have no liability
or responsibility to any of the Banks in connection with the collection or
payment of any sums due to the Banks by the Borrowers, the responsibility of the
Agent being only to account to the Banks for monies actually received by it. The
use of the term "agent" in this Agreement with reference to the Agent
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is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
SECTION 9.4 RELIANCE BY AGENT. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, facsimile,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrowers),
independent accountants and other experts selected by the Agent. The Agent may
deem and treat the payee of any Note as the owner thereof for all purposes. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement, any Note or any other Facility Documents unless it shall first
receive such advice or concurrence of the Banks or it shall first be indemnified
to its satisfaction by all Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
The Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement, any Note or any other Facility Documents in
accordance with a request of the Banks, and such request and any action taken or
failure to act pursuant thereto shall be binding upon the Banks and all future
holders of the Notes.
SECTION 9.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received notice from any Bank or the Borrowers
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". If the Agent receives such a
notice, the Agent shall promptly give notice thereof to the Banks. The Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Banks; provided that, unless and until the Agent
shall have received such directions, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall reasonably deem advisable in the best
interest of the Banks.
SECTION 9.6 NON-RELIANCE ON AGENT AND OTHER BANKS. Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates has made any representations
or warranties to it and that no act by the Agent hereinafter taken, including
any review of the affairs of the Borrowers, shall be deemed to constitute any
representation or warranty by the Agent to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon the Agent or any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and made its own decision to make its extensions of credit hereunder
and enter into this
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Agreement. Each Bank also represents that it will, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement, the Notes and the other Facility Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports and other documents expressly required to
be furnished to the Banks by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Bank with any credit or other information
concerning the business, operations, property, financial and other condition or
creditworthiness of the Borrowers which may come into the possession of the
Agent or any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates.
SECTION 9.7 INDEMNIFICATION. Each Bank agrees to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to the
respective Revolving Credit Loan Commitment Percentage, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expense or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Notes) be imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement, the Notes and the other Facility
Documents or any documents contemplated by or referred to herein or the
transactions contemplated hereby or any action taken or omitted by the Agent
under or in connection with any of the foregoing; provided that no Bank shall be
liable for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting solely from the Agent's gross negligence or willful misconduct. The
agreements in this Section 9.7 shall survive the payment of the Notes and all
other amounts payable hereunder and the other Facility Documents and the
termination of this Agreement and the other Facility Documents.
SECTION 9.8 BANK ONE IN ITS INDIVIDUAL CAPACITY. Bank One and its
Affiliates may make loans to, accept deposits from and generally engage in any
kind of business with the Borrowers as though Bank One were not the Agent
hereunder. With respect to its Loans made or renewed by it and any Note issued
to it either as Bank One or the Agent, Bank One shall have the same rights and
powers under this Agreement as any Bank and may exercise the same as though it
were not the Agent, and the terms "Bank" and "Banks" shall include Bank One in
its individual capacity.
SECTION 9.9 SUCCESSOR AGENT. The Agent may resign as agent at any time
by giving notice to the Banks and the Borrowers. Upon any such resignation, the
Required Banks shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Banks, and shall
have accepted such appointment, within 30 days after the retiring Agent gives
notice of resignation, then the retiring Agent
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may, on behalf of the Banks, appoint a successor Agent, which shall be a
commercial bank organized or licensed under the laws of the United States or of
any State thereof and having a combined capital and surplus of at least $100
million. Upon the acceptance of its appointment as Agent hereunder by a
successor Agent, such successor Agent shall succeed to the rights, powers and
duties of the retiring Agent, and the term "Agent" shall mean such successor
Agent effective upon its appointment, and the retiring Agent's rights, powers
and duties as Agent shall be terminated, without any other or further act or
deed on the part of such retiring Agent or any of the parties to this Agreement
or any holders of the Notes. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article VIII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE X
CHANGE IN CIRCUMSTANCES
-----------------------
SECTION 10.1 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR.
If on or prior to the funding of a Loan at, or converting the Interest Rate on a
Loan to, the Eurodollar Rate:
(a) any Bank determines that deposits in Dollars (in the
applicable amounts) are not being offered to the Bank in the Eurodollar market
for such Interest Period, or
(b) any Bank determines that the Eurodollar Rate, as
determined by the Agent, will not adequately and fairly reflect the cost to such
Bank of funding the Eurodollar Rate Loans for such Interest Period, the Bank
shall forthwith give notice thereof to the Agent and the Borrowers, whereupon
until the Bank notifies the Agent and the Borrowers that the circumstances
giving rise to such suspension no longer exist, (i) the obligations of the Banks
to make Eurodollar Rate Loans or to continue or convert outstanding Loans as or
into Eurodollar Rate Loans shall be suspended, and (ii) each outstanding
Eurodollar Rate Loan shall be converted into a Base Rate Loan on the date set
forth in such notice. Unless the Borrowers notifies the Agent at least one (1)
Business Day before the date of any Eurodollar Rate Loan borrowing for which a
Notice of Borrowing has previously been given that it elects not to borrow on
such date, such borrowing shall instead be made as a Base Rate Loan.
SECTION 10.2 ILLEGALITY AND IMPOSSIBILITY. In the event that any
applicable law, treaty, rule or regulation (whether domestic or foreign) now or
hereafter in effect and whether or not presently applicable to any Bank, or any
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by any Bank
with any request or directive of such authority (whether or not having the force
of law), including without limitation exchange controls, shall make
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it unlawful or impossible for any Bank to make, maintain or fund its Eurodollar
Rate Loans and such Bank shall forthwith give notice thereof to the Agent and
the Borrowers, whereupon until such Bank notifies the Borrowers that the
circumstances giving rise to such suspension no longer exist, the obligation of
the Banks to make Eurodollar Rate Loans, or to convert outstanding Base Rate
Loans to Eurodollar Rate Loans, shall be suspended. If such notice is given,
each Eurodollar Rate Loan of the Banks then outstanding shall be converted to a
Base Rate Loan immediately.
SECTION 10.3 INCREASED COST AND REDUCED RETURN.
(a) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank, or any interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Bank with any guideline, request or
directive of any such authority (whether or not having the force of law), shall
(i) affect the basis of taxation of payments to any Bank of any amounts payable
by the Borrowers under this Agreement or any other Facility Document (other than
taxes imposed on the overall net income of the Bank by the jurisdiction, or by
any political subdivision or taxing authority of such jurisdiction, in which the
Bank has its principal office), or (ii) impose, modify or deem applicable any
Eurodollar Reserve Percentage or any such requirement imposed by the Board of
Governors of the Federal Reserve System, special deposit, insurance assessment
or similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Bank, or (iii) impose on any Bank or the London
interbank market any other condition affecting the Eurodollar Rate Loans, the
Notes or any Bank's obligation to make Eurodollar Rate Loans and the result of
any of the foregoing is to increase the cost to any Bank of making, funding or
maintaining any Eurodollar Rate Loan, or to reduce the amount of any sum
received or receivable by the Bank under this Agreement or under any Note with
respect thereto, by any amount deemed by any Bank to be material, then, within
15 days after demand by such Bank, the Borrowers shall pay to the Bank such
additional amount or amounts sufficient to compensate the Bank for such
increased cost or reduction.
(b) In the event that any applicable law, treaty, rule or
regulation (whether domestic or foreign) now or hereafter in effect and whether
or not presently applicable to any Bank or any interpretation or administration
thereof by any Governmental Authority charged with the interpretation or
administration thereof, or compliance by any Bank with any guideline, request or
directive of any such authority (whether or not having the force of law),
including any risk-based capital guidelines, affects or would affect the amount
of capital required or expected to be maintained by any Bank (or any corporation
controlling such Bank) and the Bank determines that the amount of such capital
is increased by or based upon the existence of the Bank's obligations hereunder
and such increase has the effect of reducing the rate of return on the Bank's
(or such controlling corporation's) capital as a consequence of such obligations
hereunder to a level below that which the Bank (or
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such controlling corporation) could have achieved but for such circumstances
(taking into consideration its policies with respect to capital adequacy) by an
amount deemed by the Bank to be material, then, within 15 days after demand by
the Bank, the Borrowers shall pay to the Bank such additional amount or amounts
sufficient to compensate the Bank for such reduction.
(c) A Bank shall promptly notify the Agent and the Borrowers
of any event of which it has knowledge, occurring after the date hereof, which
will entitle the Bank to compensation pursuant to this Section 10.3. A
certificate of the Bank claiming compensation under this Section 10.3 and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive and binding for all purposes, absent manifest error. In
determining such amount, the Bank may use any reasonable averaging and
attribution methods.
SECTION 10.4 TAXES.
(a) For the purposes of this Section 10.4, the following terms
have the following meanings:
"TAXES" shall mean any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings with respect to any
payment by the Borrowers pursuant to this Agreement or under any Note, and all
liabilities with respect thereto, excluding, in the case of any Bank, taxes
imposed on its income, and franchise or similar taxes imposed on it, by a
jurisdiction under the laws of which the Bank is organized, in which its
principal executive office is located or the State of Ohio.
"OTHER TAXES" shall mean any present or future stamp or
documentary taxes and any other excise or property taxes, or similar charges or
levies, which arise from any payment made pursuant to this Agreement or under
any Note or from the execution or delivery of, or otherwise with respect to,
this Agreement or, any Note or any other Facility Document.
(b) Any and all payments by the Borrowers to or for the
account of any Bank or the Agent hereunder or under any Note or other Facility
Document shall be made without deduction for any Taxes or Other Taxes; provided
that, if the Borrowers shall be required by law to deduct any Taxes or Other
Taxes from any such payments, (i) the sum payable shall be increased as
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 10.4) such Bank or the
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrowers shall make such
deductions, (iii) the Borrowers shall pay the full amount deducted to the
relevant taxation authority or other Governmental Authority in accordance with
applicable law, and (iv) the
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Borrowers shall furnish to the Agent, at its address referred to in Section
11.4, the original or a certified copy of a receipt evidencing payment thereof.
(c) The Borrowers agree to indemnify each Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section 10.4) paid by such Bank or the Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto; provided, however, if any Bank or the Agent successfully
defends against any claim so asserted, and such outcome would also be applicable
as to all of such Bank's transactions with customers similarly or analogously
situated, the indemnification provided for shall be proportionally reduced. This
indemnification provided for in this subsection (c) shall be paid within 15 days
after such Bank or the Agent (as the case may be) makes demand therefor.
SECTION 10.5 BASE RATE LOANS SUBSTITUTED FOR AFFECTED EURODOLLAR RATE
LOANS. If (a) the obligation of any Bank to make, or convert outstanding Loans
to, Eurodollar Rate Loans has been suspended pursuant to the terms of this
Agreement, or (b) any Bank has demanded compensation under Section 10.3 or 10.4
with respect to its Eurodollar Rate Loans and the Borrowers shall, by at least
five Business Days' prior notice to such through the Agent, have elected that
the provisions of this Section 10.5 shall apply to such Bank, then, unless and
until such Bank notifies the Agent and the Borrowers that the circumstances
giving rise to such suspension or demand for compensation no longer exist:
(a) all Loans which would otherwise be made by the Bank as (or
continued as or converted into) Eurodollar Rate Loans shall instead be
Base Rate Loans; and
(b) after each of its Eurodollar Rate Loans has been repaid
(or converted to a Base Rate Loan), all payments of principal which
would otherwise be applied to repay such Eurodollar Rate Loans shall be
applied to repay its Base Rate Loans instead.
If the Bank notifies the Agent and the Borrowers that the circumstances giving
rise to such notice no longer apply, the principal amount of each such Base Rate
Loan shall be converted into a Eurodollar Rate Loan on the date set forth in
such notice.
ARTICLE XI
MISCELLANEOUS
-------------
SECTION 11.1 EXPENSES. Whether or not the transactions herein
contemplated shall be consummated, the Borrowers agree to pay all out-of-pocket
expenses (including
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reasonable fees and expenses of counsel) of the Agent and the Banks incurred in
connection with the preparation of this Agreement, the Notes, any amendments or
supplements to this Agreement and the other Facility Documents, any audit,
appraisal or other such service deemed necessary or desirable by the Agent or
the Banks for the preparation of the Agreement, underwriting documents or
enforcing the Agent's and the Banks' rights hereunder, and all out-of-pocket
expenses (including reasonable fees and expenses of their respective counsel)
incidental to the enforcement of the rights of the Agent and the Banks under any
provisions of this Agreement, the Notes and any other Facility Document.
SECTION 11.2 COVENANTS TO SURVIVE, BINDING AGREEMENT. This Agreement
shall be binding upon and inure to the benefit of the Agent, the Banks, the
Borrowers and their respective successors or assigns; provided, however, that
the Borrowers may not assign or otherwise dispose of any of its rights or
obligations hereunder. All covenants, agreements, warranties and representations
made herein, and in all certificates and documents delivered in connection with
this Agreement by or on behalf of the Borrowers shall survive the execution and
delivery hereof and thereof, and all such covenants, agreements, representations
and warranties shall inure to the respective successors and assigns of the Banks
whether or not so expressed.
SECTION 11.3 WAIVERS. No failure on the part of the Agent or the Banks
to exercise and no delay in exercising any right or remedy hereunder or under
the Notes or any other Facility Documents shall operate as a waiver thereof, nor
shall any single or partial exercise by the Agent or the Banks of any right,
remedy or power hereunder thereunder preclude any other right, remedy or power.
The rights, remedies and powers provided herein, in the Notes and the other
Facility Documents are cumulative and not exclusive of any other rights,
remedies or powers which the Agent, the Banks or any holder of the Notes, would
otherwise have. Notice to or demand on the Borrowers in any circumstance in
which the terms of this Agreement, the Notes or the other Facility Documents do
not require notice or demand to be given shall not entitle the Borrowers to any
other or further notice or demand in similar or other circumstances or
constitute a waiver of the rights of the Agent, the Banks or the holder of any
Notes to take any other further action in any circumstances without notice or
demand.
SECTION 11.4 NOTICES. Notice from one party to another relating to this
Agreement shall be deemed effective if made in writing (including
telecommunications) and delivered to the recipient's address, telex number or
facsimile number set forth below (or to such other address or number as such
party shall give notice) by any of the following means: (i) hand delivery, (ii)
registered or certified mail, postage prepaid, with return receipt requested,
(iii) Federal Express, Airborne Express or like overnight courier service or
(iv) telecopy, telex or other wire transmission with request for assurance of
receipt in a manner typical with respect to communications of that type. Notice
made in accordance with this Section 11.4 shall be deemed delivered on receipt
if delivered by hand or wire
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transmission, on the third business day after mailing if mailed by registered or
certified mail, or the next Business Day after mailing or deposit with an
overnight courier service if delivered by express mail or overnight courier for
next day delivery.
If to Bank One: Bank One, NA
Corporate Banking
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx,
Vice President
with a copy to: Schottenstein, Zox & Xxxx
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxx X. Xxxxxxxx, Esq.
If to NCBC: National City Bank of Columbus
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxxxx,
Vice President
with a copy to: National City Bank of Columbus
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.,
If to the Agent: Bank One, NA
Corporate Banking
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx,
Vice President
with a copy to: Schottenstein, Zox & Xxxx
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxx X. Xxxxxxxx, Esq.
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If to the Borrowers: MPW Industrial Services Group, Inc.
0000 Xxxxxxxxx Xxxx, X. X.
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Chief
Financial Officer
with a copy to: Xxxxx, Day, Xxxxxx & Xxxxx
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
SECTION 11.5 SEVERABILITY, ENTIRE AGREEMENT, EFFECTIVENESS. Every
provision of this Agreement, the Notes and the other Facility Documents is
intended to be severable; if any term or provision of this Agreement, any Note
or other Facility Document shall be invalid, illegal or unenforceable for any
reason whatsoever, the validity, legality and enforceability of the remaining
provisions hereof or thereof shall not in any way be affected or impaired
thereby. All exhibits and schedules to this Agreement shall be annexed hereto
and shall be deemed to be part of this Agreement. This Agreement and the
exhibits and schedules attached hereto and the other Facility Documents embody
the entire agreement and understanding between the Borrowers, the Agent and the
Banks and supersede all prior agreements and understandings relating to the
subject matter hereof. This Agreement shall become effective upon receipt by the
Agent of counterparts hereof signed by each of the parties hereto (or, in the
case of any party as to which an executed counterpart shall not have been
received, receipt by the Agent in form satisfactory to it of telegraphic,
facsimile or other written confirmation from such party of execution of a
counterpart hereof by such party).
SECTION 11.6 GOVERNING LAW; VENUE. This Agreement, the Notes and all
other Facility Documents are being delivered, and are intended to be performed
in, the State of Ohio and shall be construed and enforceable in accordance with,
and governed by, the laws of the State of Ohio. Each Borrower agrees that any
legal suit, action or proceeding arising out of or related to this Agreement or
any other Facility Document or the transactions contemplated hereby and thereby
may be instituted in a state of federal court of appropriate jurisdiction in
Franklin County, Ohio, waives any objection which it may have now or hereafter
to the venue of any such suit, action or proceeding, and irrevocably submits to
the jurisdiction of any such court in any such suit, action or proceeding.
SECTION 11.7 SECURITY AND RIGHT OF SETOFF. Each Borrower hereby grants
to the Banks a right of setoff for all Setoff Obligations of the Borrower to
each Bank hereunder in and to any and all moneys of the Borrower and the
proceeds thereof now or hereafter held or received by or in transit to either
Bank from or for the account of the Borrower, whether for safekeeping, pledge,
transmission, collection or otherwise, and also upon any and all deposits
(general and special), account balances and credits of the Borrower with
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either Bank at any time existing. Each Bank is hereby expressly and irrevocably
authorized by the Borrower at any time and from time to time upon or after the
occurrence of an Event of Default, without notifying the Borrower, to setoff and
appropriate all items hereinbefore referred to in this Section 11.7. All items
so setoff and appropriated shall be delivered to the Agent for delivery to and
allocation among the Banks in accordance with each Bank's respective Revolving
Credit Loan Commitment Percentage and shall be applied first by each Bank to the
Borrower's obligations hereunder and the other Facility Documents and thereafter
to all other Setoff Obligations of the Borrower to such Bank, and the Borrower
shall continue to be liable to the Banks for any deficiency with interest at the
applicable rates. Each Borrower hereby irrevocably consents that the Banks shall
have the right of possessing, setting-off, appropriating and applying such items
for the benefit of the Banks and paying or delivering over to the Banks any of
such items for application in accordance with the provisions hereof. Any sums so
set-off shall be held in trust by the Agent for the pro rata benefit of all
Banks with respect to their respective Loans.
SECTION 11.8 AMENDMENTS AND WAIVERS. Any provision of this Agreement,
the Notes or any other Facility Document may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed by the Borrower and the
Required Banks (and, if the rights or duties of the Agent are affected thereby,
by the Agent); provided that no such amendment or waiver shall, unless signed by
all the Banks, (i) increase or decrease the Commitment of any Bank (except for a
ratable decrease in the Commitments of all Banks) or subject any Bank to any
additional obligation, (ii) reduce the principal of or rate of interest on any
Loan or any fees hereunder, (iii) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees hereunder or for any scheduled
reduction or termination of any Commitment, (iv) change the aggregate amount of
Loans required to be repaid on any date pursuant to this Agreement, (v) amend or
waive this Section 11.8 or any of the financial covenants set forth in Section
7.6, (vi) change the Loan Commitment Percentage of any Bank, (vii) change the
aggregate unpaid principal amount of the Notes, or (viii) or the definition of
Required Banks.
SECTION 11.9 TAXES AND FEES. Should any tax (other than a tax based
upon the net income of the Banks) or any recording or filing fees become payable
in respect of this Agreement, the Notes or any other Facility Document or any
amendment, modification or supplement hereof or thereof, the Borrowers agrees,
jointly and severally, to pay the same together with any interest or penalties
thereon and agree to hold the Banks harmless with respect thereof.
SECTION 11.10 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original and all of which
shall constitute one agreement. It shall not be necessary in making proof of
this Agreement or of any document required to be executed and delivered in
connection herewith to produce or account for more than one counterpart.
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SECTION 11.11 EFFECTIVE DATE. This Agreement shall be effective at such
time as executed counterparts of this Agreement have been delivered by the
Borrowers to the Agent.
SECTION 11.12 WAIVER OF JURY TRIAL. THE BANKS, THE AGENT AND THE
BORROWERS, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH
COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM
MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS
AGREEMENT, THE NOTES, THE OTHER FACILITY DOCUMENTS, OR ANY RELATED INSTRUMENT OR
AGREEMENT, OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREBY, OR ANY COURSE OF
CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF ANY OF
THEM. NEITHER THE BANKS, THE AGENT NOR THE BORROWERS SHALL SEEK TO CONSOLIDATE,
BY COUNTERCLAIM OR OTHERWISE, ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED
WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR
RELINQUISHED BY THE BANKS, THE AGENT OR THE BORROWERS EXCEPT BY A WRITTEN
INSTRUMENT EXECUTED BY ALL OF THEM.
SECTION 11.13 ARBITRATION. The Banks, the Agent and Borrowers agree
that upon the written demand of any party, whether made before or after the
institution of any legal proceedings, but prior to the rendering of any judgment
in that proceeding, all disputes, claims and controversies between them, whether
individual, joint, or class in nature, arising from this Agreement, any other
Facility Document or otherwise, including without limitation contract disputes
and tort claims, shall be resolved by binding arbitration pursuant to the
Commercial Rules of the American Arbitration Association ("AAA"). Any
arbitration proceeding held pursuant to this arbitration provision shall be
conducted in the city nearest the Borrower's address having an AAA regional
office, or at any other place selected by mutual agreement of the parties. This
arbitration provision shall not limit the right of any party during any dispute,
claim or controversy to seek, use, and employ ancillary, or preliminary rights
and/or remedies, judicial or otherwise, for the purposes of realizing upon,
preserving, protecting, foreclosing upon or proceeding under forcible entry and
detainer for possession of, any real or personal property, and any such action
shall not be deemed an election of remedies. Such remedies include, without
limitation, obtaining injunctive relief or a temporary restraining order,
invoking a power of sale under any deed of trust or mortgage, obtaining a writ
of attachment or imposition of a receivership, or exercising any rights relating
to personal property, including taking or disposing of such property with or
without judicial process pursuant to Article 9 of the Uniform Commercial Code or
when applicable, a judgment by confession of judgment. Any disputes, claims or
controversies concerning the lawfulness or reasonableness of an act, or exercise
of any right or remedy concerning any property, including any claim to rescind,
reform or otherwise modify any agreement relating to any property, shall also be
arbitrated; provided, however that no
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arbitrator shall have the right or the power to enjoin or restrain any act of
either party. Judgement upon any award rendered by any arbitrator may be entered
in any court having jurisdiction. Nothing in this arbitration provision shall
preclude either party from seeking equitable relief from a court of competent
jurisdiction. The statute of limitations, estoppel, waiver, laches and similar
doctrines which would otherwise be applicable in an action brought by a party
shall be applicable in any arbitration proceeding, and the commencement of an
arbitration proceeding shall be deemed the commencement of any action for these
purposes. The Federal Arbitration Act (Title 9 of the United States Code) shall
apply to the construction, interpretation, and enforcement of this arbitration
provision.
SECTION 11.14 WAIVER OF SUBROGATION. Each Borrower expressly waives any
and all rights of subrogation, contribution, reimbursement, indemnity,
exoneration, implied contract, recourse to security or any other claim
(including any claim, as that term is defined in the federal Bankruptcy Code,
and any amendments) which such Borrower may now have or later acquire against
any other Borrowers, any other entity directly or contingently liable for the
obligations of the Borrowers under this Agreement, the Notes and all other
Facility Documents, arising from the existence or performance of such Borrower's
obligations under this Agreement and the other Facility Documents.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date first written above.
BANKS:
Bank One, NA National City Bank of Columbus
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
----------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxxx
--------------------------- ----------------------------
Title: Vice President Title: Vice President
-------------------------- ---------------------------
AGENT:
Bank One, NA
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------
Title: Vice President
--------------------------
BORROWERS:
MPW Industrial Services Group, Inc. MPW Industrial Services, Inc.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------- ------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
--------------------------- ----------------------------
Title: Vice President & CFO Title: Vice President & CFO
-------------------------- ---------------------------
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MPW Industrial Services, Ltd. MPW Management Services Corp.
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
----------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxxxxx
--------------------------- --------------------------------
Title: Vice President & CFO Title: Vice President & CFO
-------------------------- -------------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------- ----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxxxxx
--------------------------- --------------------------------
Title: Controller Title: Vice President
-------------------------- -------------------------------
ESI International, Inc. ESI-North Limited
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
----------------------------- ----------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx
--------------------------- --------------------------------
Title: Secretary Title: Asst. Secretary
-------------------------- -------------------------------
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EXHIBIT A
FORM OF REVOLVING CREDIT LOAN NOTE
72
REVOLVING CREDIT LOAN NOTE
$10,500,000.00 Columbus, Ohio December 10, 1997
PROMISE TO PAY. Not later than December 31, 2000, for value received,
the undersigned, MPW Industrial Services Group, Inc., MPW Industrial Services,
Inc., , MPW Industrial Services, Ltd., MPW Management Services Corp., Weston
Engineering, Inc., Aquatech Environmental, Inc., ESI International, Inc. and
ESI-North Limited (collectively, the "Borrowers"), jointly and severally, hereby
promise to pay to the order of Bank One, NA (the "Bank") or its assigns, as
further provided herein, the principal amount of Ten Million Five Hundred
Thousand Dollars ($10,500,000) or, if such principal is less, the aggregate
unpaid principal amount of all Revolving Credit Loans made by the Bank to the
Borrowers pursuant to the Revolving Credit and Term Loan Agreement referred to
below, together with interest on the unpaid principal balance from time to time
outstanding hereunder until paid in full at the rates of interest determined in
accordance with such Revolving Credit and Term Loan Agreement. Such interest
shall be due and payable on the dates set forth in such Revolving Credit and
Term Loan Agreement. Both principal and interest are payable in federal funds or
other immediately available money of the United States of America at the main
office of the Agent (defined below) located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxx 00000, or such other address as the Agent may hereafter designate by notice
to the Borrowers.
LOAN AGREEMENT. This Revolving Credit Loan Note is one of the Revolving
Credit Loan Notes referred to in the Revolving Credit and Term Loan Agreement
among the Borrowers, the Bank, National City Bank of Columbus and Bank One, NA,
as Agent (the "Agent"), dated as of December 10, 1997, as the same may be
amended, modified, supplemented, restated or replaced from time to time (the
"Agreement"), which Agreement, as so amended, is incorporated by reference
herein. All capitalized terms used herein shall have the same meanings as are
assigned to such terms in the Agreement. This Revolving Credit Loan Note is
entitled to the benefits of and is subject to the terms, conditions and
provisions of the Agreement. The Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events, and also for repayments and reborrowings on account of the
principal hereof prior to maturity upon the terms, conditions and provisions
specified therein. The Borrowers and each endorser and any other party liable on
this Revolving Credit Loan Note severally waive demand, presentment, notice of
dishonor and protest, and consent to any extension or postponement of time of
its payment without limit as to the number or period, to any substitution,
exchange or release of all or part of any collateral securing this Revolving
Credit Loan Note, to the addition of any party, and to the release or discharge
of, or suspension of any rights and remedies against, any person who may be
liable for the payment of this Revolving Credit Loan Note.
73
SETOFF. Any and all moneys now or at any time hereafter owing to the
Borrowers from the holder hereof are hereby pledged for the security of this and
all other Debt from the Borrowers to the holder hereof, and may, upon the
occurrence and during the continuation of any Event of Default, be paid and
applied thereon whether such Debt be then due or is to become due, except for
(a) funds necessary to cover checks for the payment of taxes or employee
contributions in which the Borrowers have no beneficial interest issued to third
parties prior to the date any setoff is claimed by the Bank and (b) accounts
maintained, but not substantially overfunded, for the payment of taxes or
employee contributions in which the Borrowers have no beneficial interest.
BORROWERS:
MPW Industrial Services Group, Inc. MPW Industrial Services, Inc.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
MPW Industrial Services, Ltd. MPW Management Services Corp.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
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ESI International, Inc. ESI-North Limited
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
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REVOLVING CREDIT LOAN NOTE
$4,500,000.00 Columbus, Ohio December 10, 1997
PROMISE TO PAY. On or before December 31, 2000, for value received, the
undersigned, MPW Industrial Services Group, Inc., MPW Industrial Services, Inc.,
, MPW Industrial Services, Ltd., MPW Management Services Corp., Weston
Engineering, Inc., Aquatech Environmental, Inc., ESI International, Inc. and
ESI-North Limited (collectively, the "Borrowers"), jointly and severally, hereby
promise to pay to the order of National City Bank of Columbus (the "Bank") or
its assigns, as further provided herein, the principal amount of Four Million
Five Hundred Thousand Dollars ($4,500,000) or, if such principal is less, the
aggregate unpaid principal amount of all Revolving Credit Loans made by the Bank
to the Borrowers pursuant to the Revolving Credit and Term Loan Agreement
referred to below, together with interest on the unpaid principal balance from
time to time outstanding hereunder until paid in full at the rates of interest
determined in accordance with such Revolving Credit and Term Loan Agreement.
Such interest shall be due and payable on the dates set forth in such Revolving
Credit and Term Loan Agreement. Both principal and interest are payable in
federal funds or other immediately available money of the United States of
America at the main office of the Agent (defined below) located at 000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, or such other address as the Agent may
hereafter designate by notice to the Borrowers.
LOAN AGREEMENT. This Revolving Credit Loan Note is one of the Revolving
Credit Loan Notes referred to in the Revolving Credit and Term Loan Agreement
among the Borrowers, the Bank, Bank One, NA and Bank One, NA, as Agent (the
"Agent"), dated as of December 10, 1997, as the same may be amended, modified,
supplemented, restated or replaced from time to time (the "Agreement"), which
Agreement, as so amended, is incorporated by reference herein. All capitalized
terms used herein shall have the same meanings as are assigned to such terms in
the Agreement. This Revolving Credit Loan Note is entitled to the benefits of
and is subject to the terms, conditions and provisions of the Agreement. The
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events, and also for
repayments and reborrowings on account of the principal hereof prior to maturity
upon the terms, conditions and provisions specified therein. The Borrowers and
each endorser and any other party liable on this Revolving Credit Loan Note
severally waive demand, presentment, notice of dishonor and protest, and consent
to any extension or postponement of time of its payment without limit as to the
number or period, to any substitution, exchange or release of all or part of any
collateral securing this Revolving Credit Loan Note, to the addition of any
party, and to the release or discharge of, or suspension of any rights and
remedies against, any person who may be liable for the payment of this Revolving
Credit Loan Note.
76
SETOFF. Any and all moneys now or at any time hereafter owing to the
Borrowers from the holder hereof are hereby pledged for the security of this and
all other Debt from the Borrowers to the holder hereof, and may, upon the
occurrence and during the continuation of any Event of Default, be paid and
applied thereon whether such Debt be then due or is to become due, except for
(a) funds necessary to cover checks for the payment of taxes or employee
contributions in which the Borrowers have no beneficial interest issued to third
parties prior to the date any setoff is claimed by the Bank and (b) accounts
maintained, but not substantially overfunded, for the payment of taxes or
employee contributions in which the Borrowers have no beneficial interest.
BORROWERS:
MPW Industrial Services Group, Inc. MPW Industrial Services, Inc.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
MPW Industrial Services, Ltd. MPW Management Services Corp.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
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ESI International, Inc. ESI-North Limited
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
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EXHIBIT B
FORM OF TERM LOAN NOTE
79
TERM LOAN NOTE
$______________.00 Columbus, Ohio _______, 199__
For value received, the undersigned, MPW Industrial Services Group,
Inc., MPW Industrial Services, Inc., MPW Industrial Services, Ltd., MPW
Management Services Corp., Weston Engineering, Inc., Aquatech Environmental,
Inc., ESI International, Inc. and ESI-North Limited (collectively, the
"Borrowers"), jointly and severally, hereby promise to pay to the order of
_______________ (the "Bank") or its assigns, as further provided herein, the
principal amount of __________________ Dollars ($_____________), together with
interest on the unpaid principal balance hereunder at the rates of interest
determined in accordance with the Revolving Credit and Term Loan Agreement
referred to below. The principal hereof shall be paid in consecutive quarterly
installments of principal in the amount of __________________ Dollars
($________) each, the first of such installments to be due and payable on
__________, 199__, and the remaining of such installments to be due and payable
on the last day each March, June, September and December thereafter until
_________, 200__, at which time all remaining unpaid principal and interest
shall be paid in full. All accrued interest hereon shall be due and payable on
the dates set forth in such Revolving Credit and Term Loan Agreement. Both
principal and interest are payable in federal funds or other immediately
available money of the United States of America at the main office of the Agent
(defined below) located at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, or such
other address as the Agent may hereafter designate by notice to the Borrowers.
LOAN AGREEMENT. This Term Loan Note is one of the Term Loan Notes
referred to in the Revolving Credit and Term Loan Agreement among the Borrowers,
the Bank, _______________ and Bank One, NA, as Agent (the "Agent"), dated as of
December 10, 1997, as the same may be amended, modified, supplemented, restated
or replaced from time to time (the "Agreement"), which Agreement, as so amended,
is incorporated by reference herein. All capitalized terms used herein shall
have the same meanings as are assigned to such terms in the Agreement. This Term
Loan Note is entitled to the benefits of and is subject to the terms, conditions
and provisions of the Agreement. The Agreement, among other things, contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events, and also for repayments of principal prior to maturity hereof
upon the terms, conditions and provisions specified therein. The Borrowers and
each endorser and any other party liable on this Term Loan Note severally waive
demand, presentment, notice of dishonor and protest, and consent to any
extension or postponement of time of its payment without limit as to the number
or period, to any substitution, exchange or release of all or part of any
collateral securing this Term Loan Note, to the addition of any party, and to
the release or discharge of, or suspension of any
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rights and remedies against, any person who may be liable for the payment of
this Term Loan Note.
PREPAYMENTS. Subject to the provisions of the Agreement, the principal
of this Term Loan Note may be prepaid in whole at any time or in part from time
to time in any amount, provided that each partial prepayment shall be applied to
the principal installments in the inverse order of their respective maturities.
Each prepayment shall be accompanied by the payment of accrued interest on the
principal so prepaid to the date of such prepayment and such additional amounts
as may be due pursuant to the Agreement.
SETOFF. Any and all moneys now or at any time hereafter owing to the
Borrowers from the holder hereof, are hereby pledged for the security of this
and all other Indebtedness from the Borrowers to the holder hereof, and may,
upon the occurrence and during the continuation of any Event of Default, be paid
and applied thereon whether such Indebtedness be then due or is to become due,
except for (a) funds necessary to cover checks for the payment of taxes or
employee contributions in which the Borrowers have no beneficial interest issued
to third parties prior to the date any setoff is claimed by the Bank and (b)
accounts maintained, but not substantially overfunded, for the payment of taxes
or employee contributions in which the Borrowers have no beneficial interest.
BORROWERS:
MPW Industrial Services Group, Inc. MPW Industrial Services, Inc.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
MPW Industrial Services, Ltd. MPW Management Services Corp.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
-3-
81
Weston Engineering, Inc. Aquatech Environmental Services, Inc.
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
ESI International, Inc. ESI-North Limited
By: By:
----------------------------- ----------------------------------
Name: Name:
--------------------------- -------------------------------
Title: Title:
-------------------------- ------------------------------
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82
SCHEDULE A
REQUIRED PROPERTY INSURANCE COVERAGE AND REQUIRED PUBLIC LIABILITY INSURANCE
COVERAGE
Policy Type Deductible
----------- ----------
General Liability $250,000.00
Large Fleet 100,000.00
Umbrella 10,000.00
Workers' Compensation 25,000.00
Pollution 500,000.00
Auto Pollution 250,000.00
Property/Contractors Equipment 1,000.00
Excess Workers' Compensation (Ohio) 350,000.00
Small Fleet 25,000.00
Aviation 250,000.00
Employee Dishonesty 25,000.00
83
SCHEDULE 5.20
CONTINGENT OBLIGATIONS
1. Contingent Obligations owed to the Banks.
-2-
