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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES ACT OF 1934
For quarterly period ended September 30, 1998
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
-------------------- --------------------
Commission File Number: 0-23335
MPW INDUSTRIAL SERVICES GROUP, INC.
(Exact name of registrant as specified in its charter)
Ohio 31-1567260
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
9711 Lancaster Road, S.E., Hebron, Ohio 43025
(Address of principal executive offices) (Zip code)
(740) 927-8790
(Registrant's telephone number, including area code)
Not Applicable
(Former name, former address and former fiscal year,
if changed since last report)
- --------------------------------------------------------------------------------
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
--- ---
APPLICABLE ONLY TO CORPORATE ISSUERS:
Indicate the number of shares outstanding of the issuer's classes of common
stock, as of the latest practicable date.
As of October 31, 1998, 10,714,601 shares of the issuer's common stock, without
par value, were outstanding.
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MPW INDUSTRIAL SERVICES GROUP, INC.
<TABLE>
INDEX
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets as of September 30, 1998 (unaudited) and June 30, 1998...........3
Consolidated Statements of Operations for the three months ended September 30,
1998 and 1997 (unaudited)....................................................................4
Consolidated Statements of Cash Flows for the three months ended September 30,
1998 and 1997 (unaudited)....................................................................5
Notes to Consolidated Financial Statements (unaudited).......................................6
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations........9
Item 3. Quantitative and Qualitative Disclosures About Market Risk..................................12
PART II. OTHER INFORMATION
Item 1. Legal Proceedings...........................................................................12
Item 2. Changes in Securities and Use of Proceeds...................................................12
Item 3. Defaults Upon Senior Securities.............................................................13
Item 4. Submission of Matters to a Vote of Security Holders.........................................13
Item 5. Other Information...........................................................................13
Item 6. Exhibits and Reports on Form 8-K............................................................13
SIGNATURES...............................................................................................14
EXHIBIT INDEX............................................................................................15
</TABLE>
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PART I. -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
<TABLE>
MPW INDUSTRIAL SERVICES GROUP, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<CAPTION>
SEPTEMBER 30, JUNE 30,
1998 1998
------------- --------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 121 $ 507
Accounts receivable, net of allowances 23,505 19,386
Inventories 5,521 4,959
Deferred income taxes 1,301 1,439
Prepaid expenses 1,101 1,178
Other current assets 384 351
------- -------
31,933 27,820
Property and equipment, net 31,217 28,593
Noncurrent assets:
Intangibles 25,511 15,514
Other assets 434 440
------- -------
Total assets $89,095 $72,367
======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 5,785 $ 6,279
Accrued compensation and related taxes 3,193 3,729
Current maturities of noncurrent liabilities 3,895 2,615
Other accrued liabilities 4,296 3,768
------- -------
17,169 16,391
Noncurrent liabilities:
Long-term debt 26,412 14,296
Deferred income taxes 1,334 1,192
Other 613 767
------- -------
28,359 16,255
Shareholders' equity:
Preferred stock, $0.01 par value; 5,000,000 shares authorized;
no shares issued and outstanding -- --
Common stock, no par value; 30,000,000 shares authorized;
10,700,201 and 10,496,647 shares issued and outstanding
at September 30, 1998 and June 30, 1998, respectively 107 105
Additional paid-in capital 39,839 37,591
Retained earnings 3,621 2,025
------- -------
43,567 39,721
------- -------
Total liabilities and shareholders' equity $89,095 $72,367
======= =======
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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<PAGE> 4
<TABLE>
MPW INDUSTRIAL SERVICES GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
----------------------
1998 1997
------- -------
(UNAUDITED)
<S> <C> <C>
Revenues $29,837 $21,756
Costs and expenses:
Cost of services 19,958 14,271
Selling, general and administrative expenses 5,342 3,545
Depreciation and amortization 1,339 866
Deferred stock option compensation -- 160
------- -------
Total costs and expenses 26,639 18,842
------- -------
Income from operations 3,198 2,914
Interest expense, net 489 335
Minority earnings -- 99
------- -------
Income before taxes 2,709 2,480
Provision for income taxes 1,110 149
------- -------
Net income $ 1,599 $ 2,331
======= =======
Pro forma information:
Historical income before taxes $ 2,709 $ 2,480
Pro forma taxes on income 1,110 992
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Pro forma net income $ 1,599 $ 1,488
======= =======
Pro forma net income per share $ 0.15 $ 0.24
======= =======
Pro forma net income per share, assuming dilution $ 0.14 $ 0.22
======= =======
Weighted average common shares outstanding 10,610 6,200
Weighted average common shares outstanding, assuming dilution 11,301 6,881
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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<TABLE>
MPW INDUSTRIAL SERVICES GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
-------------------------
1998 1997
-------- --------
(UNAUDITED)
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net income $ 1,599 $ 2,331
Adjustments to reconcile net income to net cash provided by
(used in) operating activities:
Depreciation 1,068 811
Amortization 271 55
(Gain) loss on disposals of assets 2 (4)
Minority interest -- 99
Effect of exchange rate changes on cash (3) --
Deferred stock option compensation -- 160
Change in deferred income taxes 280 --
Changes in operating assets and liabilities:
Accounts receivable (2,334) (1,514)
Inventories 735 8
Prepaid expenses and other assets (1,742) 88
Accounts payable (1,251) 334
Other accrued liabilities (574) (1,007)
-------- --------
Net cash provided by (used in) operating activities (1,949) 1,361
CASH FLOW USED IN INVESTING ACTIVITIES:
Purchases of property and equipment (3,023) (558)
Purchase of businesses, net of acquired cash (7,040) --
Proceeds from the disposal of property and equipment 24 4
-------- --------
Net cash used in investing activities (10,039) (554)
CASH FLOW FROM FINANCING ACTIVITIES:
Proceeds from revolving credit facility 14,250 11,414
Payments on revolving credit facility (6,365) (10,817)
Proceeds from notes payable 6,804 --
Payments on notes payable (3,007) (220)
Payments on capital lease obligations (80) (20)
Distributions to shareholders -- (1,121)
-------- --------
Net cash provided by (used in) financing activities 11,602 (764)
-------- --------
Increase (decrease) in cash and cash equivalents (386) 43
Cash and cash equivalents at beginning of year 507 489
-------- --------
Cash and cash equivalents at end of period $ 121 $ 532
======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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MPW INDUSTRIAL SERVICES GROUP, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1998
(Unaudited)
NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BASIS OF PRESENTATION AND DESCRIPTION OF BUSINESS MPW Industrial
Services Group, Inc. and its subsidiaries (the "Company") is an industrial
services firm that provides industrial cleaning and facility support services,
industrial process water purification, industrial filtration management services
and other specialized services. Such services are typically provided at customer
facilities. The Company also operates a process facility for industrial
container cleaning. The Company's principal customers are large industrial
facilities in the automotive, electric power, chemical, pulp and paper, steel,
transportation, aerospace and other heavy manufacturing industries. The Company
provides services primarily in the midwestern and southeastern United States.
The accompanying unaudited consolidated financial statements include
the accounts of the Company and all of its wholly-owned subsidiaries, including
Aquatech Environmental, Inc. ("Aquatech"), which was 70% owned by the Company
until December 5, 1997, at which time the Company purchased the remaining
minority shareholders' interests of Aquatech, and it became wholly-owned. The
minority shareholders' interests in the equity and net income of Aquatech are
presented separately in the accompanying unaudited consolidated financial
statements for the three months ended September 30, 1997. All material
intercompany transactions and balances have been eliminated in consolidation.
The accompanying unaudited consolidated financial statements presented
herein have been prepared by the Company and reflect all adjustments of a normal
recurring nature that are, in the opinion of management, necessary for a fair
presentation of financial results for the three months ended September 30, 1998
and 1997, in accordance with generally accepted accounting principles for
interim financial reporting and pursuant to Article 10 of Regulation S-X.
Certain footnote disclosures normally included in financial statements prepared
in accordance with generally accepted accounting principles have been condensed
or omitted pursuant to such rules and regulations. These interim consolidated
financial statements should be read in conjunction with the Company's Annual
Report on Form 10-K for the year ended June 30, 1998 ("Annual Report"). The
results of operations for the three months ended September 30, 1998 and 1997 are
not necessarily indicative of the results for the full year (see Note 7 for
further information regarding fluctuations in quarterly results).
INTANGIBLES Intangibles include costs in excess of net assets of
acquired businesses ("goodwill"), patents, covenants not-to-compete and customer
lists. Goodwill, resulting primarily from certain acquisitions accounted for
using the purchase method of accounting, is amortized on a straight-line basis
over periods not exceeding 25 years. The remaining intangibles are amortized on
a straight-line basis over periods ranging from 5 to 20 years.
USE OF ESTIMATES The preparation of the financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the amounts reported in the
accompanying consolidated financial statements. Actual results could differ from
those estimates.
RECLASSIFICATIONS Certain amounts presented as of June 30, 1998 have
been reclassified to conform to the September 30, 1998 presentation.
NOTE 2. ACQUISITIONS
TANK MANAGEMENT Effective August 1, 1998, the Company purchased
substantially all of the assets of Tank Management, Inc. ("TMI") for aggregate
consideration of $5,750,000. The consideration included the issuance of 114,318
shares of common stock of the Company, representing an aggregate value of
$1,250,000. The purchase price may be increased upon the achievement of certain
new customer sales objectives for the TMI facility over the three-year period
following the date of acquisition. The acquisition has been accounted for using
the purchase method of accounting. The accompanying financial statements include
the results of operations of TMI from the effective acquisition date through
September 30, 1998.
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GAUTHIER Effective August 1, 1998, the Company acquired all of the
outstanding stock of Gauthier Enterprises, Inc., a Michigan corporation
("Gauthier"), for aggregate consideration of $3,000,000. The consideration
included the issuance of 89,236 shares of common stock of the Company,
representing an aggregate value of $1,000,000. The purchase price may be
increased by $3,000,000, or more or less, contingent upon the achievement of
certain revenue and operating objectives over the three-year period following
the date of acquisition. The acquisition has been accounted for using the
purchase method of accounting. The accompanying financial statements include the
results of operations of Gauthier from the effective acquisition date through
September 30, 1998.
The terms of certain of the Company's other acquisition agreements also
provide for additional consideration to be paid based on the achievement of
certain objectives. Such additional consideration is paid in cash, common stock
of the Company, or a combination thereof, and is capitalized as goodwill. During
the three months ended September 30, 1998, the Company paid additional
consideration of $304,000. No common stock of the Company was issued in
connection with this consideration.
NOTE 3. INTANGIBLES
Intangibles are summarized as follows:
<TABLE>
<CAPTION>
SEPTEMBER 30, JUNE 30,
------------- --------
1998 1998
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(in thousands)
<S> <C> <C>
Goodwill $18,641 $15,115
Customer lists 5,119 --
Patents 1,369 --
Non-compete agreements 382 399
------- -------
$25,511 $15,514
======= =======
</TABLE>
Accumulated amortization of intangibles as of September 30, 1998 and
June 30, 1998 was $851,000 and $580,000, respectively.
NOTE 4. INCOME TAXES
Prior to October 31, 1997, the income of MPW Industrial Services, Inc.
("Industrial") was taxed under the provisions of Subchapter S of the Internal
Revenue Code of 1986, as amended, which provides that in lieu of corporate
income taxes, the shareholders of the S Corporation were taxed on their
proportionate share of Industrial's taxable income. Therefore, no provision or
liability for federal income tax has been included in historical financial
statements related to Industrial prior to October 31, 1997. The accompanying
financial statements do, however, include provisions for income taxes for
federal, state, provincial and local tax purposes for the other subsidiaries of
the Company that were subject to corporate income taxes prior to October 31,
1997.
Deferred income taxes reflect the net tax effects of temporary
differences between the carrying amounts of assets and liabilities for financial
reporting purposes and the amounts used for income tax purposes. Significant
components of the Company's deferred tax asset and liability as of September 30,
1998 are related to the use of accelerated depreciation rates on property and
equipment for tax purposes and the carryforward of tax adjustments related to
the termination of Industrial's S Corporation status.
The pro forma income taxes presented in the Consolidated Statements of
Operations for the three months ended September 30, 1997 represent the estimated
income taxes that would have been reported had Industrial been subject to
federal and state income taxes for that period.
NOTE 5. EARNINGS PER SHARE
In 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards No. 128 ("SFAS No. 128"), Earnings per Share,
effective for periods ending after December 15, 1997. SFAS No. 128 replaced the
previously reported primary and fully diluted earnings per share with basic and
diluted earnings per share. Unlike primary earnings per share, basic earnings
per share excludes any dilutive effects of options, warrants and convertible
securities.
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Diluted earnings per share is similar to the previously reported fully diluted
earnings per share. All earnings per share amounts for all periods have been
presented to conform to the SFAS No. 128 requirements.
The following table sets forth the computation of pro forma basic and
diluted earnings per share (in thousands, except per share data):
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
---------------------
1998 1997
------- ------
<S> <C> <C>
Numerator for basic and diluted earnings per share:
Pro forma net income $ 1,599 $1,488
======= ======
Denominator for basic earnings per share - weighted average
common shares 10,610 6,200
Effect of dilutive employee stock options 691 681
------- ------
Denominator for diluted earnings per share - adjusted weighted
average common shares and assumed conversions 11,301 6,881
======= ======
Pro forma net income per share $ 0.15 $ 0.24
======= ======
Pro forma net income per share, assuming dilution $ 0.14 $ 0.22
======= ======
</TABLE>
NOTE 6. SUBSEQUENT EVENTS
Effective November 2, 1998, the Company entered into a new credit
agreement with its principal banks (the "Credit Facility") to replace the
previous credit agreement (the "Previous Credit Agreement"). The Credit Facility
provides the Company with $75,000,000 of revolving credit availability for a
three-year period. All of the outstanding borrowings under the Previous Credit
Agreement were paid off with the proceeds of the Credit Facility.
In November 1998, the Company acquired Envirosafe Technical Cleaning,
Inc. and Support Systems, Inc. and acquired substantially all of the assets of
Suresco, Inc. and Technological Environment Cleaning International Company. The
Company has also entered into an agreement in principle to acquire Dryden
Engineering, Inc. All five of these companies will be merged into a newly
created, wholly-owned subsidiary of the Company. The purchase price, paid
through a combination of cash, common stock of the Company and preferred stock
of the newly created company, is expected to be an aggregate of $19,550,000.
NOTE 7. FLUCTUATIONS IN QUARTERLY RESULTS
The Company's revenues and results of operations tend to vary
seasonally as a result of a number of factors over which the Company has no
control, including its customers' budgetary constraints, the timing and duration
of its customers' planned maintenance activities and shutdowns, changes in its
competitors' pricing policies and general economic conditions. Also, certain
operating and fixed costs remain relatively constant throughout the fiscal year,
which when offset by differing levels of revenues may result in fluctuations in
quarterly operating results. Because of these factors, the Company typically
generates the least amount of revenues in the third quarter, higher revenues in
the second quarter and the greatest amount of revenues in the first and fourth
quarters. Although the Company believes that the historical trend in quarterly
revenue for the first and fourth quarters are generally higher than the second
and third quarters, there can be no assurance that this will occur in future
periods. Accordingly, quarterly or other interim results should not be
considered indicative of results to be expected for any quarter or for the full
year.
Page 8
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
Except for historical information, certain statements in this
Management's Discussion and Analysis of Financial Condition and Results of
Operations ("MD&A") are forward looking. These forward looking statements are
based on current expectations that are subject to a number of uncertainties and
risks, and actual results may differ materially. The uncertainties and risks
include, but are not limited to, competitive and other market factors, customer
purchasing behavior, general economic conditions and other facets of the
Company's business operations as well as other risk factors identified in
"Investment Considerations" in the Company's Annual Report. The Company
undertakes no obligation and does not intend to update, revise or otherwise
publicly release the result of any revisions to these forward looking statements
that may be made to reflect future events or circumstances.
The following information should be read in conjunction with the
Unaudited Consolidated Financial Statements and Notes included herein. The
following information should also be read in conjunction with the Audited
Consolidated Financial Statements and Notes and MD&A for the year ended June 30,
1998 as contained in the Company's Annual Report.
OVERVIEW
In fiscal 1998, the Company completed the acquisitions of four
companies, ESI International, the Vinewood Companies, Straightline Optical
Service and Maintenance Concepts (collectively, the "fiscal 1998 acquisitions").
During the three months ended September 30, 1998 (the "fiscal 1999 quarter"),
the Company completed the acquisitions of two companies, TMI and Gauthier
(collectively, the "fiscal 1999 acquisitions"). See Note 2 to the Consolidated
Financial Statements. Collectively, the fiscal 1999 and 1998 acquisitions
contributed $7.1 million of revenues in the fiscal 1999 quarter.
On December 1, 1997, the registration statement related to the
Company's initial public offering of its common stock (the "Offering") was
declared effective by the Securities and Exchange Commission and its stock began
trading on the NASDAQ national market system on December 2, 1997. During the
three month period ended December 31, 1997, numerous events occurred and certain
transactions were recorded that were directly related to the Offering and affect
the comparability of the results of operations for the Company for the fiscal
1999 quarter to the three months ended September 30, 1997 (the "fiscal 1998
quarter"). For purposes of this MD&A, adjusted pro forma results of operations
for the fiscal 1998 quarter are being utilized. Adjusted pro forma information
for each of the quarters in fiscal 1998 is described in the Company's Annual
Report and its Prospectus dated December 2, 1997, filed in connection with the
Company's Registration Statement on Form S-1 (File number 333-36887).
RESULTS OF OPERATIONS
The following table sets forth, for the periods indicated, consolidated
statement of income data as a percentage of revenues for actual results for the
fiscal 1999 quarter and adjusted pro forma results for the fiscal 1998 quarter:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
-------------------
1998 1997
----- -----
<S> <C> <C>
Revenues 100.0% 100.0%
Costs and expenses:
Cost of services 66.9 65.6
Selling, general and administrative expenses 17.9 16.5
Depreciation and amortization 4.5 3.9
----- -----
Total costs and expenses 89.3 85.9
----- -----
Income from operations 10.7 14.1
Interest expense, net 1.6 --
----- -----
Income before taxes 9.1 14.1
Provision for income taxes 3.7 5.6
----- -----
Net income 5.4% 8.5%
===== =====
</TABLE>
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<PAGE> 10
THREE MONTHS ENDED SEPTEMBER 30, 1998 COMPARED TO THREE MONTHS
ENDED SEPTEMBER 30, 1997
Basis of Presentation. Management's analysis of the fiscal 1999 quarter
compared to the fiscal 1998 quarter utilizes adjusted pro forma information for
the fiscal 1998 quarter.
Revenues. Revenues increased by $8.1 million, or 37.1%, to $29.8
million for the fiscal 1999 quarter from $21.7 million for the fiscal 1998
quarter. This increase was primarily the result of the six acquisitions that
were completed since October 1, 1997, which contributed an aggregate of $7.1
million of revenues. Despite the impact of the General Motors strike (the "GM
strike"), the internal rate of growth in revenues in the fiscal 1999 quarter was
4.4%. Excluding the impact of the GM strike, the internal rate of growth in
revenues in the fiscal 1999 quarter was 10.1%.
Cost of Services. Cost of services increased by $5.7 million, or 39.9%,
to $20.0 million for the fiscal 1999 quarter from $14.3 million for the fiscal
1998 quarter. Cost of services as a percentage of revenues increased to 66.9%
for the fiscal 1999 quarter from 65.6% for the fiscal 1998 quarter. The increase
in cost of services as a percentage of revenues is the result of the loss of
revenues related to the GM strike and higher margin project work that was
performed in the fiscal 1998 quarter.
Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased by $1.8 million, or 48.9%, to $5.3 million for
the fiscal 1999 quarter from $3.5 million for the fiscal 1998 quarter. Selling,
general and administrative expenses increased as a percentage of revenues to
17.9% for the fiscal 1999 quarter from 16.5% for the fiscal 1998 quarter. The
increase in selling, general and administrative expenses is primarily due to the
overhead costs assumed in the six acquisitions noted above, costs associated
with the Company's status as a public company and other investments in the
Company's infrastructure to support overall growth.
Depreciation and Amortization. Depreciation and amortization increased
by $498,000, or 59.2%, to $1.3 million for the fiscal 1999 quarter from $841,000
for the fiscal 1998 quarter. Depreciation and amortization increased as a
percentage of revenues to 4.5% for the fiscal 1999 quarter from 3.9% for the
fiscal 1998 quarter. This increase is a result of additional capital
expenditures related to the Company's growth and additional goodwill arising out
of the six acquisitions noted above.
Income from Operations. Income from operations increased $141,000, or
4.6%, to $3.2 million for the fiscal 1999 quarter from $3.1 million for the
fiscal 1998 quarter. Income from operations decreased as a percentage of
revenues to 10.7% for the fiscal 1999 quarter from 14.1% for the fiscal 1998
quarter. The increase in income from operations and the decrease in operating
margin are due to the factors discussed above.
Interest Expense, net. Immediately following the Offering, the Company
had no borrowings under the Previous Credit Agreement with its banks. For this
reason, interest expense has been eliminated in the adjusted pro forma
information for the fiscal 1998 quarter to give effect as if the repayment of
the Company's debt obligations from the proceeds of the Offering had occurred as
of the beginning of the period. Reported interest expense in the fiscal 1999
quarter is the result of new borrowings subsequent to the Offering, primarily
resulting from the six acquisitions noted above.
Provision for Income Taxes. Prior to October 31, 1997, Industrial was
an S Corporation for income tax purposes and did not record a provision for
federal and certain state income taxes. The provision for income taxes in the
adjusted pro forma information for the fiscal 1998 quarter reflects an effective
rate of 40%. The provision for income taxes for the fiscal 1999 quarter reflects
an effective rate of 41%.
Net Income and Net Income per Share. Net income decreased $249,000, or
13.5%, to $1.6 million for the fiscal 1999 quarter from $1.8 million for the
fiscal 1998 quarter. Assuming dilution, net income per share decreased to $0.14
for the fiscal 1999 quarter from $0.17 for the fiscal 1998 quarter. These
decreases are due to the factors discussed above. Weighted average common shares
outstanding used in the calculation of net income per share for the fiscal 1998
quarter assumes that the Offering and repurchase of minority interests had
occurred at the beginning of the period.
Page 10
<PAGE> 11
QUARTERLY RESULTS AND SEASONALITY
The Company's results of operations tend to vary seasonally, with the
least amount of revenues generated in the third quarter, higher revenues in the
second quarter and the greatest amount of revenues in the first and fourth
quarters. The Company's quarterly results of operations may fluctuate
significantly as a result of a number of factors over which the Company has no
control, including its customers' budgetary constraints, the timing and duration
of its customers' planned maintenance activities and shutdowns, changes in its
competitors pricing policies and general economic conditions. Also, certain
operating and fixed costs remain relatively constant throughout the fiscal year
that, when offset by differing levels of revenues, may result in fluctuations in
quarterly results.
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 1998, the Company had cash and cash equivalents of
$121,000 and working capital of $14.8 million. During the fiscal 1999 quarter,
the Company used $1.9 million in operating activities and made capital
investments of $3.0 million.
In the fiscal 1999 quarter, the Company completed two acquisitions that
required an aggregate of $6.5 million in cash and the issuance of 203,554 shares
of the Company's common stock.
Prior to November 2, 1998, the Company operated under the Previous
Credit Agreement with its principal banks, which, as amended, provided the
Company with $50.0 million of credit availability. Effective November 2, 1998,
the Company entered into the Credit Facility to replace the Previous Credit
Agreement. This Credit Facility provides the Company with $75.0 million of
revolving credit availability for a three-year period, subject to extension by
the banks each year on the anniversary of the agreement. Under the terms of the
Credit Facility, the entire $75.0 million is available for general corporate
purposes, including working capital, capital expenditures and acquisitions.
Borrowing under the Credit Facility is at rates, based on the prime or
Eurodollar rate, that the Company believes to be very favorable. Availability of
borrowing is subject to the maintenance of a minimum level of net worth, certain
levels of interest coverage and maintenance of a certain ratio of funded debt to
earnings before interest, taxes, depreciation and amortization that the Company
believes are achievable. As of September 30, 1998, $29.4 million had been drawn
on the Previous Credit Agreement in the form of term notes and revolving credit.
Subsequent to September 30, 1998, the entire amount outstanding under the
Previous Credit Agreement, $29.4 million, was transferred to the Credit Facility
in the form of revolving credit.
The Company completed, in November 1998, the acquisitions of four
companies and has an agreement in principle to purchase a fifth company, all of
which provide cleaning services and related technical services to cleanroom
environments. These companies are Envirosafe Technical Cleaning, Inc., Support
Systems, Inc., Suresco, Inc., Technological Environment Cleaning International
Company and Dryden Engineering, Inc. The five companies will be consolidated to
form a wholly-owned subsidiary of the Company. The Company intends to become a
leading nationwide provider of technically-driven cleanroom services to the
semiconductor, microelectronics, pharmaceutical, electronics and bio-medical
industries. These services include cleanroom cleaning, both during construction
and on an ongoing basis, equipment cleaning, emergency restoration, testing and
certification of cleanrooms and equipment and other related technical services.
The purchase price, paid through a combination of cash, common stock of the
Company and preferred stock of the newly created company, is expected to be an
aggregate of $19.6 million.
The Company intends to continue its strategy of complementing its
internal growth and to expand its service offerings, including the technical
cleanroom services discussed above, through acquisitions. In the fiscal 1999
quarter, the Company completed two acquisitions that utilized $6.5 million of
cash, and following the quarter, the Company completed the four acquisitions
discussed above, which utilized $13.5 million in cash. Subsequent to these
acquisitions, the total amount outstanding against the Credit Facility was $42.9
million. Also, the Company has agreements in principle to purchase certain other
companies that may require the utilization of $6.1 million of borrowings under
the Credit Facility.
The Company believes that cash on hand as of September 30, 1998, cash
flow from operations and available borrowings under the Credit Facility will be
sufficient to fund the acquisitions discussed above, its currently planned
capital projects and operations for at least the next 24 months.
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<PAGE> 12
YEAR 2000 ISSUE
Many computer systems in use today were designed and developed using
two digits, rather than four, to specify the year. As a result, such systems
will recognize a date using "00" as the year 1900 rather than the year 2000.
This could cause many computer applications to fail completely or to create
erroneous results unless corrective measures are taken.
The Company recognizes the need to ensure its operations will not be
adversely impacted by year 2000 software failures. Major areas of potential
business impact have been identified and initial conversion efforts are
underway. The Company is also addressing this risk with its suppliers, dealers,
financial institutions and others with which it does business to coordinate year
2000 conversion. The Company's main operating and financial system became year
2000 compliant effective with the recent normal software upgrade completed in
December 1997. The cost of achieving year 2000 compliance for the remaining
systems is estimated to be less than $100,000 over the cost of normal software
upgrades and replacements and will be incurred through the end of the second
quarter of fiscal 1999, at which time the Company expects that all of its
financial and operating systems will be year 2000 compliant.
INFLATION
The effects of inflation on the Company's operations were not
significant during the periods presented in the Consolidated Financial
Statements.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
The Company's exposures to market risk are not material.
PART II. -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
None.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS.
(a) Not Applicable.
(b) Not Applicable.
(c) On August 5, 1998, pursuant to an Asset Purchase
Agreement, dated as of May 8, 1998 (the "TMI Agreement"),
by and among TMI, Orr & Boss, Inc. and the Company, the
Company purchased substantially all of the assets of TMI
(the "Purchase"). As partial consideration for the
Purchase, the Company issued 114,318 shares of its common
stock to TMI. Pursuant to an Escrow Agreement entered into
in connection with the consummation of the Purchase, the
shares of common stock issued pursuant to the TMI
Agreement are held in escrow for a minimum period of at
least one year and will be available for satisfaction of
certain indemnity claims that the Company may have against
TMI. The issuance of the shares of common stock pursuant
to the TMI Agreement was pursuant to Section 4(2) of the
Securities Act of 1933, as amended (the "Act").
On August 18, 1998, pursuant to a Purchase Agreement,
dated as of August 18, 1998 (the "Gauthier Agreement"), by
and between Amy J. Gauthier and the Company, the Company
purchased through a wholly-owned indirect subsidiary all
of the issued and outstanding capital stock of Gauthier
(the "Acquisition"). As partial consideration for the
Acquisition, the Company issued 89,236 shares of its
common stock to Ms. Gauthier. Ms. Gauthier was an officer
and director of Gauthier and has entered into an
employment and non-competition agreement with the Company
and its affiliates. Pursuant to an Escrow Agreement
entered into in connection
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with the consummation of the Acquisition, the shares of
common stock issued pursuant to the Gauthier Agreement are
held in escrow for a minimum period of at least one year
and will be available for satisfaction of certain
indemnity claims that the Company may have against Ms.
Gauthier. The issuance of the shares of common stock
pursuant to the Gauthier Agreement was pursuant to Section
4(2) of the Act.
(d) Not Applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
Not Applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not Applicable.
ITEM 5. OTHER INFORMATION.
None.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
3(a) Amended and Restated Articles of Incorporation of
the Company effective October 30, 1997 (filed as
Exhibit 3(a) to the Company's Registration
Statement on Form S-1 (File No. 333-36887), and
incorporated herein by reference).
3(b) Amended and Restated Code of Regulations of the
Company effective October 30, 1997 (filed as
Exhibit 3(b) to the Company's Registration
Statement on Form S-1 (File No. 333-36887), and
incorporated herein by reference).
4 Revolving Credit Loan Agreement, dated as of
November 2, 1998, among the Company and its
subsidiaries and affiliates, Bank One, NA and
National City Bank of Columbus.
27 Financial Data Schedule.
(b) No reports on Form 8-K were filed during the period.
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<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on behalf by the
undersigned thereunto duly authorized.
MPW INDUSTRIAL SERVICES GROUP, INC.,
an Ohio corporation
Dated: November 12, 1998 By: /s/ Daniel P. Buettin
----------------- -----------------------------------------------
Daniel P. Buettin
Vice President and Chief Financial Officer
(on behalf of the Registrant and as Principal
Financial Officer)
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<PAGE> 15
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------ ----------------------
3(a) Amended and Restated Articles of Incorporation of the Company
effective October 30, 1997 (filed as Exhibit 3(a) to the
Company's Registration Statement on Form S-1 (File No.
333-36887), and incorporated herein by reference).
3(b) Amended and Restated Code of Regulations of the Company
effective October 30, 1997 (filed as Exhibit 3(b) to the
Company's Registration Statement on Form S-1 (File No.
333-36887), and incorporated herein by reference).
4 Revolving Credit Loan Agreement, dated as of November 2, 1998,
among the Company and its subsidiaries and affiliates, Bank
One, NA and National City Bank of Columbus.
27 Financial Data Schedule.
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<PAGE> 1
Exhibit 4
REVOLVING CREDIT LOAN AGREEMENT
among
MPW INDUSTRIAL SERVICES GROUP, INC.
and its Subsidiaries and Affiliates Named Herein,
BANK ONE, NA,
NATIONAL CITY BANK
and
BANK ONE, NA,
as Agent
Dated as of November 2, 1998
<PAGE> 2
TABLE OF CONTENTS
(This Table of Contents is not part of this Agreement
and is only for convenience of reference.)
<TABLE>
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions....................................................1
Section 1.2 Use of Terms..................................................14
Section 1.3 Cross References; Headings....................................15
Section 1.4 Accounting Terms..............................................15
ARTICLE II
AMOUNT AND TERMS OF COMMITMENT AND REVOLVING CREDIT LOANS
Section 2.1 Commitment..............................................15
Section 2.2 Notes...................................................16
Section 2.3 Notice of Loan Borrowing; Funding of Loans..............17
Section 2.4 Conversion and Continuation Options.....................18
Section 2.5 Optional Termination or Reduction of Commitment.........19
Section 2.6 Termination of Commitment...............................19
Section 2.7 Interest................................................20
Section 2.8 Fees....................................................21
Section 2.9 Prepayments.............................................22
Section 2.10 General Provisions as to the Loans and Payments and
Funding of Loans.......................................22
Section 2.11 Use of Proceeds.........................................23
Section 2.12 Loan Administration.....................................23
Section 2.13 Funding Losses..........................................24
ARTICLE III
STANDBY LETTERS OF CREDIT
Section 3.1 Issuance of Standby L/Cs.................................24
Section 3.2 Participation of L/Cs....................................25
Section 3.3 Further Assurances.......................................26
Section 3.4 Obligations Absolute.....................................26
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ARTICLE IV
CONDITIONS OF LENDING
Section 4.1 Conditions to Initial Transaction........................27
Section 4.2 Conditions to Each Transaction...........................29
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 Good Standing and Qualification..........................30
Section 5.2 Authority................................................30
Section 5.3 Binding Agreements.......................................30
Section 5.4 Litigation...............................................30
Section 5.5 No Conflicting Law or Agreement .........................31
Section 5.6 Taxes....................................................31
Section 5.7 Financial Statements.....................................31
Section 5.8 Adverse Developments.....................................31
Section 5.9 Existence of Assets and Title Thereto....................32
Section 5.10 Regulations S,T,U or X...................................32
Section 5.11 Compliance...............................................32
Section 5.12 Leases...................................................32
Section 5.13 Pension Plans............................................32
Section 5.14 Investment Company; Holding Company......................33
Section 5.15 No Insolvency............................................33
Section 5.16 Environmental Matters....................................33
Section 5.17 Accuracy of Information..................................33
Section 5.18 Assets for Conduct of Business...........................34
Section 5.19 Trade Relations..........................................34
Section 5.20 Contingent Obligations...................................34
ARTICLE VI
AFFIRMATIVE COVENANTS
Section 6.1 Financial Statements.....................................34
Section 6.2 Certificates; Other Information..........................35
Section 6.3 Payment of Obligations...................................36
Section 6.4 Maintenance of Rights, Permits, Etc; Compliance
with Law.................................................36
Section 6.5 Inspection of Property; Books and Records;
</TABLE>
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Discussions..............................................36
Section 6.6 Notices..................................................36
Section 6.7 Taxes....................................................37
Section 6.8 Maintenance of Property; Insurance.......................37
Section 6.9 ERISA Funding Requirements...............................38
Section 6.10 Indemnification..........................................38
Section 6.11 Performance Under Facility Documents.....................38
Section 6.12 Corporate Existence; Foreign Qualification...............38
Section 6.13 Maintenance of Business..................................39
Section 6.14 Environmental Matters....................................39
Section 6.15 Primary Depository.......................................40
Section 6.16 Change in Governing Documents............................40
ARTICLE VII
NEGATIVE COVENANTS
Section 7.1 Mortgages and Pledges....................................40
Section 7.2 Merger, Consolidation, Sale and Acquisition of Assets....41
Section 7.3 Contingent Obligations...................................41
Section 7.4 Transactions with Affiliates.............................41
Section 7.5 Compliance with ERISA....................................42
Section 7.6 Financial Covenants......................................42
Section 7.7 Debt Restriction.........................................42
Section 7.8 Investments..............................................43
Section 7.9 Limitation on Subsidiaries...............................43
Section 7.10 Change in Fiscal Year....................................43
Section 7.11 Change in Accounting Practices...........................43
Section 7.12 Sale and Leaseback.......................................43
Section 7.13 Disposing of Notes/Accounts Receivable...................43
Section 7.14 Subordinated Debt........................................43
Section 7.15 Restricted Payments......................................43
Section 7.16 Derivatives Obligations..................................43
Section 7.17 Ineligible Securities....................................43
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
Section 8.1 Events of Default; Remedies...................................44
Section 8.2 Application of Proceeds.......................................46
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ARTICLE IX
THE AGENT
Section 9.1 Appointment..............................................46
Section 9.2 Delegation of Duties.....................................47
Section 9.3 Exculpatory Provisions...................................47
Section 9.4 Reliance by Agent........................................47
Section 9.5 Notice of Default........................................48
Section 9.6 Non-Reliance on Agent and Other Banks....................48
Section 9.7 Indemnification..........................................48
Section 9.8 Bank One in Its Individual Capacity......................49
Section 9.9 Successor Agent..........................................49
ARTICLE X
CHANGE IN CIRCUMSTANCES
Section 10.1 Basis for Determining Interest Rate Inadequate
or Unfair............................................50
Section 10.2 Illegality and Impossibility.............................50
Section 10.3 Increased Cost and Reduced Return........................50
Section 10.4 Taxes....................................................52
Section 10.5 Base Rate Loans Substituted for Affected Eurodollar
Rate Loans...........................................56
ARTICLE XI
MISCELLANEOUS
Section 11.1 Expenses...............................................53
Section 11.2 Covenants to Survive, Binding Agreement................53
Section 11.3 Waivers................................................54
Section 11.4 Notices................................................54
Section 11.5 Severability, Entire Agreement, Effectiveness..........55
Section 11.6 Governing Law; Venue...................................56
Section 11.7 Security and Right of Setoff...........................56
Section 11.8 Amendments and Waivers.................................56
Section 11.9 Taxes and Fees.........................................57
Section 11.10 Counterparts...........................................57
Section 11.11 Effective Date.........................................57
Section 11.12 Waiver of Jury Trial...................................57
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Section 11.13 Arbitration.................................................57
Section 11.14 Waiver of Subrogation.......................................58
Section 11.15 Additional Borrowers........................................58
Section 11.16 Year 2000 Compliance........................................59
ARTICLE XII
ASSIGNMENTS AND PARTICIPATIONS
Section 12.1 Assignments...................................................60
Section 12.2 Participations................................................61
Section 12.3 Disclosure of Information.....................................62
Section 12.4 Consent of Borrowers..........................................62
SIGNATURES...................................................................................63
SCHEDULE I Listing of Subsidiaries
SCHEDULE A Required Property Insurance Coverage and Required Public Liability
Insurance Coverage
SCHEDULE 5.20 Contingent Obligations
EXHIBIT A Form of Revolving Credit Loan Note
EXHIBIT B Form of Supplement
EXHIBIT C Form of Assignment and Assumption Agreement
</TABLE>
(v)
<PAGE> 7
REVOLVING CREDIT LOAN AGREEMENT
THIS REVOLVING CREDIT LOAN AGREEMENT, dated as of November 2, 1998, is
made and entered into by and among MPW Industrial Services Group, Inc. ("MPW
Group"), Aquatech Environmental, Inc. ("Aquatech"), each of the other
subsidiaries of MPW Group listed on Schedule I hereto, Bank One, NA, a national
banking association ("Bank One"), National City Bank, a national banking
association ("NCB"), and Bank One, NA, as Agent, acting in the manner and to the
extent described in Article IX hereof.
BACKGROUND INFORMATION
The Borrowers have requested that the Banks provide revolving credit
loans to the Borrowers, and the Banks have agreed to provide such revolving
credit loans, upon and subject to the terms and conditions as hereinafter set
forth.
PROVISIONS
NOW, THEREFORE, in consideration of the provision of such revolving
credit 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
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 up to the maximum aggregate amount of $75 million, subject to
the terms and conditions of this Agreement.
"Aggregate Commitment" shall mean the aggregate amount of the
Commitment of the Banks.
<PAGE> 8
"Agreement" shall mean this Revolving Credit Loan Agreement,
as the same may be amended, modified, supplemented, renewed, extended, restated
or replaced from time to time.
"Annual Review Date" shall mean November 1, 1999 and each
November 1 thereafter while this Agreement is in effect.
"Assignee" shall have the meaning set forth in Section
12.1 (a).
"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 Loans
made by the Banks pursuant to the terms hereof, plus (y) 100% of the Dollar
amount available to be drawn under outstanding Standby L/Cs at such time.
"Banks" shall mean Bank One, NCB 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.
"Borrowers" shall mean MPW Group, Aquatech, the other
Subsidiaries listed on Schedule I and those Subsidiaries which after the Closing
Date become a party to this Agreement in accordance with the terms hereof, and
"Borrower" shall mean any one of such Borrowers.
"Borrowing Date" shall have the meaning set forth in
Section 2.3(a).
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<PAGE> 9
"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 also not
a day on which banking institutions are generally authorized or obligated by law
or executive order to close in the City of London, England.
"Change in Circumstances" shall have the meaning set forth in
Section 11.16(b)(ii).
"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 Monte R. Black 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 response to Form 8-K or Schedule 14A (or any successor
schedule, form or report
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<PAGE> 10
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 $45 million,
and (y) as to NCB, the commitment of NCB to make Loans to the Borrowers and fund
Standby L/Cs on behalf of the Borrowers up to the maximum aggregate amount of
$30 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 Percentage" shall mean the percentage that each
Bank's Commitment to make Loans bears to the Aggregate Commitment of all Banks
to make Loans hereunder.
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<PAGE> 11
"Commitment Period" shall mean the period of time from the
date hereof through and including November 1, 2001, as such date may be extended
as provided in Section 2.1(e).
"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 EBIT" shall mean, for any period, the sum of (i)
Consolidated Net Income of the Borrowers for such period, plus (ii) Consolidated
Interest Expense of the Borrowers for such period, plus (iii) taxes (based on
income) of the Borrowers for such period.
"Consolidated EBITDA" of the Borrowers shall mean, for any
period, the sum of (i) Consolidated EBIT for the Borrowers for such period, plus
(ii) the amount of all depreciation and amortization expenses of the Borrowers
for such period that were deducted in determining Consolidated EBIT; provided,
however, that earnings before interest, taxes, depreciation and amortization,
plus nonrecurring private company owner compensation, plus other expenses
consented to by the Required Banks, that are discontinued or adjusted upon
acquisition by the Borrowers, of the businesses acquired by the Borrowers during
the period reported in the most recent financial statements provided to the
Banks pursuant to Section 6.1 shall be included in the calculation of
Consolidated EBITDA.
"Consolidated EBIT to Consolidated Interest Expense Ratio"
shall mean, as of the last day of any Fiscal Quarter, the ratio of (i)
Consolidated EBIT to (ii) Consolidated Interest Expense, as determined as of
such day, based on such financial data for the previous four (4) Fiscal
Quarters.
"Consolidated Funded Debt" of the Borrowers shall mean, at any
date, the sum of (x) 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, plus (y) Current Maturities of
Loans.
"Consolidated Funded Debt to Consolidated EBITDA Ratio" shall
mean, as of the last day of any Fiscal Quarter, the ratio of (i) the
Consolidated Funded Debt as of such day to (ii) Consolidated EBITDA, as
determined as of such day, based on such financial data for the previous four
(4) Fiscal Quarters.
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"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.
"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.
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<PAGE> 13
"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
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.
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"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
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, the
offered rate for Dollar deposits of not less than $1,000,000.00 as of 11:00 A.M.
City of London, England time two Business Days prior to the first date of each
Interest Period as shown on the display designated as "British Bankers Assoc.
Interest Settlement Rates" on the Telerate System ("Telerate"), Page 3750 or
Page 3740, or such other page or pages as may replace such pages on Telerate for
the purpose of displaying such rate; provided,
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<PAGE> 15
however, that if such rate is not available on Telerate then such offered rate
shall be otherwise independently determined by the Agent from an alternate,
substantially similar independent source available to the Agent or shall be
calculated by the Agent by a substantially similar methodology as that
theretofore used to determine such offered rate in Telerate.
"Eurodollar Rate Loan" shall mean, at any time, any
outstanding Loan that bears interest based on the Eurodollar Rate.
"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. In addition, for purposes
of the financial information to be used in calculating the financial covenants
set forth in Section 7.6, (x) the "Adjusted Pro Forma Results of Operations" of
the Borrowers as of the end of each Fiscal Quarter that ended on or prior to
December 31, 1997 shall be utilized, and (y) the actual results of operations of
the Borrowers as of the
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<PAGE> 16
end of each Fiscal Quarter that ended or will end after December 31, 1997 shall
be utilized. As used herein, "Adjusted Pro Forma Results of Operations" will be
the same information that is presented by MPW Group in its Forms 10-K and 10-Q
filings with the Securities and Exchange Commission in the section in such
filings entitled "Management's Discussion and Analysis of Results of Operations
and Financial Condition".
"Governmental Authority" shall mean any national government,
central bank or comparable agency, any state or other political subdivision
thereof and any entity 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, (x) the last day of each Fiscal Quarter, beginning with December
31, 1998, and continuing on the last day of each Fiscal Quarter thereafter, and
(y) on the Termination Date, and (b) with respect to each Eurodollar Rate Loan,
(x) the last day of each Interest Period with respect thereto, or in the case of
an Interest Period greater than three months, on the last day of each Fiscal
Quarter, beginning with December 31, 1998, 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 the Termination Date.
"Interest Period" shall mean, with respect to any Eurodollar
Rate Loan:
(a) initially, the period commencing on the 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 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:
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<PAGE> 17
(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;
(ii) any Interest Period that would otherwise extend
beyond the Termination Date shall end on the Termination Date;
(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.
"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" or "Loans" shall mean a revolving credit 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 Notes.
"Material Adverse Effect" shall mean, relative to any
occurrence of whatever nature (including any determination in litigation,
arbitration or governmental proceeding or investigation), which the Required
Banks reasonably determine will have a materially adverse effect on:
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<PAGE> 18
(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 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 Loans, as the same may be amended, modified,
supplemented, extended, restated or replaced from time to time.
"Notice of Borrowing" shall have the meaning set forth in
Section 2.3(a).
"Notice of Interest Rate Conversion" shall have the meaning
set forth in Section 2.4(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 Companies, Inc., or P-1 by Moody's
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.
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"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 Commitment or, if the Commitment shall
have been terminated, holding Notes evidencing at least 66-2/3% of the aggregate
unpaid principal amount of the 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 "allrisk" 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.
"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
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<PAGE> 20
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).
"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.
"Systems" shall have the meaning set forth in Section 11.16.
"Termination Date" shall mean the date upon which the
Commitment Period ends.
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"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.
"Year 2000 Compliant" shall mean that the Systems of a Person
are designed to be used prior to, during and after the Gregorian calendar year
2000 A.D. and will operate during each such time period without error relating
to date data, specifically including any error relating to, or the product of,
date data which represents or references different centuries or more than one
century.
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.
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.
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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 COMMITMENT AND REVOLVING CREDIT LOANS
SECTION 2.1 Commitment.
(a) Within the limits of the Commitment and subject to the
terms and conditions of this Agreement and the other Facility Documents, each
Bank severally agrees to make Loans to the Borrowers from time to time during
the Commitment Period; provided that, immediately after each such Loan is made,
the aggregate principal amount of Loans by such Bank shall not exceed the amount
of its Commitment (as such 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 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 Commitment Percentage. During the Commitment Period and as long as no
Default or Event of Default exists, the Borrowers may use the Commitment by
borrowing, repaying the 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 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 Loans outstanding under the Commitment until such
amounts shall have been reimbursed to the Bank pursuant to the terms of the
Standby L/C Applications.
(c) Within the limits of the Commitment and subject to the
other terms and conditions of this Agreement and the other Facility Documents,
each Borrower may borrow Loans hereunder, repay Loans and reborrow Loans.
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<PAGE> 23
(d) Notwithstanding any provision hereof to the contrary, the
total amount of the sum of (i) the amount of outstanding and unpaid Loans, plus
(ii) the total aggregate Dollar amount available to be drawn under outstanding
Standby L/Cs, shall at no time exceed the Aggregate Commitment.
(e) Upon the written request of the Borrowers to the Banks at
least 30 days before, but not more than 60 days before, each Annual Review Date,
the Banks, in their sole discretion, may elect to extend the Commitment Period
and the Borrowers' right to obtain Loans hereunder for an additional one (1)
year period, or such other period as the Banks may so elect, from the
Termination Date then in effect, by providing written notice to the Borrowers on
or before an Annual Review Date. If the Banks shall not have provided the
Borrowers with written notice of their intention to so extend, the Borrowers'
right to obtain Revolving Credit Loans under this Agreement shall terminate as
of the then existing Termination Date.
SECTION 2.2 Notes.
(a) The Loans made by each Bank to the Borrowers pursuant
hereto shall be evidenced by a separate Note payable to the order of such Bank
in an aggregate amount equal to the Commitment of such Bank at any time. Each
Note shall (i) be dated as of the date the 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 Commitment when so issued or reissued, as the case may be, (iii)
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) 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 Loan, the Borrowers shall give the Agent notice (a "Notice of Borrowing").
Such Notice of Borrowing (i) shall be irrevocable, and (ii) must be received by
the Agent prior to (x) 10:30
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a.m. Columbus, Ohio time, at least two (2) Business Days prior to the proposed
date of the borrowing, which date shall be a Business Day (a "Borrowing Date"),
if all or any part of the requested 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 Borrowing Date if all of the requested Loans are to be initially
Base Rate Loans. Each such Notice of Borrowing shall specify (i) the amount to
be borrowed, (ii) the requested 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.
(b) Upon receipt of a Notice of Borrowing given in accordance
with subsection (a) above, the Agent shall promptly notify each Bank of the
contents thereof and of such Bank's Loan in proportion to its Commitment
Percentage.
(c) 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 Borrowing Date, each Bank shall make
available its Loan in proportion to its 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.
(d) 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.
(e) 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).
(f) Unless the Agent shall have received notice from a Bank
prior to a Borrowing Date that such Bank will not make available to the Agent
the amount that would constitute its 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 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
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<PAGE> 25
corresponding amount, such amount so repaid shall constitute such Bank's 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.
(g) The failure of any Bank to make the Loan to be made by it
on any Borrowing Date shall not relieve any other Bank of its respective
obligation, if any, hereunder to make its Loan on such 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 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.
(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 two
(2) 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
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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 Commitment. 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 Commitment at any time, if no
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 Commitment in excess of the then aggregate
outstanding principal amount of the Loans;
SECTION 2.6 Termination of Commitment. The Commitment shall terminate
on the Termination Date and any 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.
SECTION 2.7 Interest and Fee Schedule.
(a) "Applicable Margin" shall be as set forth in the follow
matrix:
- --------------------------------------------------------------------------------
APPLICABLE MARGIN
- --------------------------------------------------------------------------------
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<PAGE> 27
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------
CONSOLIDATED FUNDED BASE RATE EURODOLLAR COMMITMENT L/C FEE
DEBT TO EBITDA RATIO LOANS RATE LOANS FEE
FOR THE BORROWERS
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LESS THAN 1.0:1.0 -35 BASIS POINTS +87.5 BASIS POINTS 25 BASIS POINTS +87.5 BASIS
POINTS
- -------------------------------------------------------------------------------------------------------------------
EQUAL TO OR GREATER THAN -15 BASIS POINTS +112.5 BASIS 30 BASIS POINTS +112.5 BASIS
1.0:1.0 BUT LESS THAN POINTS POINTS
1.5:1.0
- -------------------------------------------------------------------------------------------------------------------
EQUAL TO OR GREATER THAN + 0 BASIS POINTS +137.5 BASIS 30 BASIS POINTS +137.5 BASIS
-
1.5:1.0 BUT LESS THAN POINTS POINTS
2.0:1.0
- -------------------------------------------------------------------------------------------------------------------
EQUAL TO OR GREATER THAN + 0 BASIS POINTS +162.5 BASIS 35 BASIS POINTS +162.5 BASIS
-
2.0:1.0 POINTS POINTS
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
(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 Consolidated Funded Debt to EBITDA 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
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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
Consolidated Funded Debt to EBITDA Ratio of the Borrowers was equal to
or greater than 2.0:1.0 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 (x) Interest Rate applicable to
each Loan outstanding on such Rate Determination Date, (y) the
Applicable Margin applicable to determining the commitment fees payable
by the Borrowers in accordance with Section 2.8(b), and (z) the
Applicable Margin applicable to determining the Standby L/C fees
payable by the Borrowers in accordance with Section 3.1(e).
(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 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.
(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.
(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
$112,500.00.
(b) During the Commitment Period, the Borrowers shall pay to
the Bank a commitment fee at a rate per annum equal to the Applicable Margin set
forth in the grid set forth in Section 2.7(a) 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. The Applicable Margin with respect to such commitment fee
shall be determined in the same manner as the Applicable Margin
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<PAGE> 29
is determined for Interest Rate. 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, 1998, 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, 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 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.
(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
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<PAGE> 30
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; provided, however, that such interest, fees,
costs or expenses shall not be deemed to be outstanding Loans for purposes of
Section 2.8(b).
(d) Upon receipt of each Bank's Note pursuant to Article IV,
the Agent shall forward such Note to such Bank.
(e) If any payment of principal of, and interest on, the Loans
is 10 days or more late, Borrowers will be charged 5% of the regularly scheduled
payment or $25, whichever is greater, up to the maximum amount of $1,500 per
late charge.
(f) Upon the occurrence of an Event of Default, including
failure to pay upon final maturity, the Banks may also, at their option, if
permitted under applicable law, do one or both of the following: (a) increase
the Interest Rate to the Default Rate, and (b) add any unpaid accrued interest
to principal and such sum will bear interest therefrom until paid at the
applicable Interest Rate (including at the Default Rate). The Interest Rate will
not exceed the maximum rate permitted by applicable law.
SECTION 2.11 Use of Proceeds. The Borrowers represent and agree that
the proceeds of the Loans made hereunder shall be used by the Borrowers only for
(i) working capital and general corporate purposes, including with respect to
Standby L/Cs, (ii) to fund capital expenditures permitted by this Agreement, and
(iii) 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) the prior consent of the Required Banks is obtained if the
cost of the proposed acquisition (x) would be in excess of $7,500,000,
or (y) together with the cost of all other acquisitions previously
consummated in any Fiscal Year, would be in excess of $12,500,000 in
the aggregate. The Banks consent to the acquisition of the "clean room"
companies as previously disclosed by the Borrowers to the Banks
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,
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<PAGE> 31
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
pay all accrued interest on the principal amount prepaid with such prepayment
and, on demand, shall reimburse the Banks and the Agent and hold the Banks and
the Agent harmless from all losses and expenses incurred by the Banks and the
Agent as a result of such prepayment, including, without limitation, any losses
and expenses arising from the liquidation or reemployment of deposits acquired
to fund or maintain the principal amount prepaid. Such reimbursement shall be
calculated as though the Banks funded the principal amount prepaid through the
purchase of Dollar deposits in the London, England interbank market having a
maturity corresponding to such Interest Period and bearing an interest rate
based on the Eurodollar Rate of such Interest Period, whether in fact that is
the case or not. The Banks' and the Agent 's determination of the amount of such
reimbursement shall be conclusive in the absence of manifest error.
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.
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<PAGE> 32
(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 Loan when no Event of Default is existing,
and (y) thereafter, the rate which would then be payable on any outstanding Loan
during the existence of an Event of Default.
(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 at a rate per annum equal to the Applicable
Margin multiplied by 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 NCB. NCB and all other Assignees 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 respective Commitment Percentage for NCB and
all other Assignees. 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 and all other Assignees in accordance with their respective Commitment
Percentage.
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<PAGE> 33
(b) Amendment of L/C. If any such Standby L/C is amended
whereby the amount is increased or decreased, each Bank's and Assignee's share
of participation shall be increased or decreased accordingly to its respective
Commitment Percentage.
(c) Payments. If the Borrowers do not immediately reimburse
Bank One for amounts funded under draws under Standby L/Cs, NCB and all other
Assignees shall make payment to Bank One in an amount equivalent to its
respective 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. NCB's and each other Assignee'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 NCB's and each other Assignee's participation to Bank
One, Bank One shall be entitled to all amounts of credits received by Bank One
or either Bank or any Assignee 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 NCB or any
other Assignee 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 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
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<PAGE> 34
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 Loan 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 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 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 (iv) 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,
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<PAGE> 35
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 (if required to be qualified to transact
business in Ohio).
(e) Incumbency Certificates. The Agent shall have received a
certificate of the secretary or an assistant secretary (or other appropriate
representative) of each 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
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<PAGE> 36
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 Jones, Day, Reavis & Pogue, 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.
SECTION 4.2 Conditions to Each Transaction.
(a) The agreement of the Banks to make any transaction
(whether such transaction be a Loan or the issuance of a Standby L/C, and
including, without limitation, the initial 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, an
appropriate Standby L/C Application if the transaction is the issuance
of a Standby L/C.
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<PAGE> 37
(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, 1998 and 1997 and the related consolidated statements
of income, shareholders' equity and cash flows for the Fiscal Years then ended;
and (ii) the unaudited consolidated balance sheet of the Borrowers as of the end
of the Fiscal Quarter ending September 30, 1998 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:
SECTION 6.1 Financial Statements. Furnish to the Banks:
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(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 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
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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;
(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
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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, 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.
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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 (x) the gross negligence or willful misconduct of the Banks,
or (y) any Bank not being Year 2000 Compliant. 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 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,
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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 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
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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:
(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;
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(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; and
(g) notice filing by any creditor in respect of any operating
leases.
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 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.
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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.
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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 Net Worth. Permit Consolidated Net Worth to
be less than $43 million (which amount shall increase (but not decrease) to the
amount equal to 90% of Consolidated Net Worth as shown on the post-closing
purchase accounting balance sheet to be delivered to the Banks after
consummation by the Borrowers of the acquisition of the "clean room" companies
as previously disclosed by the Borrowers to the Banks), provided such amount
shall increase (i) (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, 1998, and (ii) on each day any net proceeds are received by
the Borrowers from the sale of equity securities of any Borrower by the amount
of such net proceeds.
(b) Consolidated Funded Debt to Consolidated EBITDA Ratio.
Permit, as of the last day of any Fiscal Quarter (beginning with the Fiscal
Quarter ending September 30, 1998), the Consolidated Funded Debt to Consolidated
EBITDA Ratio to exceed 3.0:1.0.
(c) Consolidated EBIT to Consolidated Interest Expense Ratio.
Permit, as of the last day of any Fiscal Quarter (beginning with the Fiscal
Quarter ending September 30, 1998), the Consolidated EBIT to Consolidated
Interest Expense Ratio to be less than 2.5:1.0.
(d) Consolidated Capital Expenditures. Exclusive of
acquisitions permitted by the terms of this Agreement, 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);
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(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 (i) in connection with acquisitions
permitted by Section 2.11, (ii) for Permitted Investments, and (iii) for the
investment not in excess of $1 million in the preferred stock of Clean Room
Management Services, Inc., 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.
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. Except for interest rate swap
transactions (in form and substance, and evidenced by documents, satisfactory to
the Agent) in an aggregate amount not exceeding $5,000,000 at any time entered
into with any Bank, incur any Derivatives Obligations.
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SECTION 7.17 Ineligible Securities. Use any portion of the Loan
directly or indirectly to purchase ineligible securities, as defined by
applicable regulations of the Federal Reserve Board, underwritten by any
affiliate of Bank One Corporation during the underwriting period and for 30 days
thereafter.
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;
(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
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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 Monte R. Black, 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;
(k) a Change in Control occurs; or
(l) other than with respect to the Facility Documents, any
Borrower defaults under agreement, obligation or instrument between or among any
Borrower or any Bank.
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
the Commitment 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
Commitment shall thereupon terminate and all amounts owing under the Notes, this
Agreement and all other Facility Documents shall
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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 Commitment
Percentage (or, if different, the percentage that each Bank's
outstanding Loans bears to the aggregate outstanding 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 Commitment
Percentage (or, if different, the percentage that each Bank's
outstanding Loans bears to the aggregate outstanding 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.
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
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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 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.
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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 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
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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 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 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
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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.
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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 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
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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 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
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error. In determining such amount, the Bank may use any reasonable averaging and
attribution methods.
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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 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.
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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 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
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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 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
100 East Broad Street
Columbus, OH 43271-0170
Attention: Thomas E. Redmond,
Vice President
with a copy to: Schottenstein, Zox & Dunn
41 South High Street, Suite 2600
Columbus, OH 43215
Attention: Jay R. Dingledy, Esq.
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If to NCB: National City Bank
155 East Broad Street
Columbus, OH 43251-0034
Attention: Brian T. Strayton,
Vice President
with a copy to: National City Bank
155 East Broad Street
Columbus, OH 43251
Attention: Robert G. Hartmann, Esq.,
If to the Agent: Bank One, NA
Corporate Banking
100 East Broad Street
Columbus, OH 43271-0170
Attention: Thomas E. Redmond,
Vice President
with a copy to: Schottenstein, Zox & Dunn
41 South High Street, Suite 2600
Columbus, OH 43215
Attention: Jay R. Dingledy, Esq.
If to the Borrowers: MPW Industrial Services Group, Inc.
9711 Lancaster Road, S. E.
Hebron, OH 43025
Attention: Daniel P. Buettin, Chief Financial
Officer
with a copy to: MPW Industrial Services Group, Inc.
9711 Lancaster Road, S. E.
Hebron, OH 43025
Attention: Robert J. Gilker, 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. The parties hereto shall endeavor in good-faith negotiations to replace
the invalid, illegal or unenforceable provisions with valid provisions, the
economic effect of which comes as close as possible to that of the invalid,
illegal or unenforceable provisions. All exhibits and schedules to this
Agreement shall be annexed hereto and shall be deemed
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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 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 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
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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 Commitment 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 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.
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 HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED
UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THE BANKS, THE AGENT AND THE
BORROWERS ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, THE NOTES, ANY
OTHER FACILITY DOCUMENT, OR ANY RELATIONSHIP BETWEEN THE BANKS, THE AGENT AND
THE BORROWERS. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANKS TO PROVIDE
THE FINANCING DESCRIBED HEREIN OR IN THE OTHER LOAN DOCUMENTS.
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
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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
MPW Group'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 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.
SECTION 11.15 Additional Borrowers. Each Person which becomes a
Subsidiary after the Closing Date shall be required to become a party to this
Agreement, the Notes and each Standby L/C Application by the execution and
delivery by such a Subsidiary and
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the Agent of the Supplement in the form of Exhibit B attached hereto. Upon such
execution and delivery, each such Subsidiary shall become a Borrower under this
Agreement, the Notes and the Standby L/C Applications with the same force and
effect as if originally named a Borrower under this Agreement, the Notes and the
Standby L/C Applications. The execution of and delivery of any such Supplements
shall not require the consent of any Borrower. The rights and obligations of
each Borrower under the Agreement, the Notes and the Standby L/C Applications
shall remain in full force and effect notwithstanding the addition of any new
Borrower to this Agreement, the Notes and the Standby L/C Applications.
SECTION 11.16 Year 2000 Compliance.
(a) Each Borrower represents and warrants as follows to the
Banks that: (i) as of the date of any request for an advance of the Loan, (ii)
as of the date of any renewal, extension or modification of the Loan, and (iii)
at all times the Loan or the Commitment is outstanding:
(A) All devices, systems, machinery, information technology,
computer software and hardware, and other date sensitive technology
(jointly and severally the "Systems") necessary for the Borrowers to
carry on their business as presently conducted and as contemplated to
be conducted in the future are Year 2000 Compliant or will be Year 2000
Compliant within a period of time calculated to result in no material
disruption of any of Borrowers' business operations.
(B) To the extent currently necessary for its operations, each
Borrower has developed a plan and time line for becoming Year 2000
Compliant on a timely basis, and to date, implemented any such plan in
accordance with that timetable in all material respects.
(C) No Borrower has any specific knowledge that any of its key
suppliers, vendors, and customers will not be Year 2000 Compliant. For
purposes hereof, "key suppliers, vendors, and customers" refers to
those suppliers, vendors, and customers of each Borrower whose business
failure would, with reasonable probability, result in a material
adverse change in the business, properties, condition (financial or
otherwise), or prospects of each Borrower. For purposes of this
paragraph, each Bank, as a lender of funds under the terms of the Loan,
confirms, separately as to itself and not jointly, to Borrowers that it
has initiated its own corporate-wide Year 2000 program with respect to
its lending activities.
(b) Each Borrower covenants and agrees with the Banks that,
while the Loan is outstanding, each Borrower shall:
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(i) Furnish such additional information, statements and other
reports with respect to Borrowers' activities, course of action and
progress towards becoming Year 2000 Compliant as the Banks or the Agent
may request from time to time.
(ii) In the event of any change in circumstances that causes
or will likely cause any of any Borrower's representations and
warranties with respect to its being or becoming Year 2000 Compliant to
no longer be true (hereinafter, referred to as a "Change in
Circumstances"), then such Borrower shall promptly, and in any event
within ten (10) days of receipt of information regarding a Change in
Circumstances, provide the Banks with written notice (the "Notice")
that describes in reasonable detail the Change in Circumstances and how
such Change in Circumstances caused or will likely cause such
Borrower's representations and warranties with respect to being or
becoming Year 2000 Compliant to no longer be true. Such Borrower shall,
within ten (10) days of a request, also provide the Banks with any
additional information the Banks or the Agent requests of such Borrower
in connection with the Notice and/or a Change in Circumstances.
(iii) Promptly upon its becoming available, furnish to the
Banks one copy of each financial statement, report, notice, or proxy
statement sent by any Borrower to stockholders generally and of each
regular or periodic report, registration statement or prospectus filed
by any Borrower with any securities exchange or the Securities and
Exchange Commission or any successor agency, and of any order issued by
any Governmental Authority in any proceeding to which any Borrower is a
party.
(iv) Give any representative of the Banks and the Agent
reasonable access during all business hours to, and permit such
representative to examine, copy or make excerpts from, any and all
books, records and documents in the possession of each Borrower and
relating to its affairs, and to inspect any of the properties and
Systems of each Borrower, and to project test the Systems to determine
if they are Year 2000 Compliant in an integrated environment, all at
the sole cost and expense of the Banks.
(c) Notwithstanding anything to the contrary which may be set
forth in the Facility Documents, failure to comply with any term or condition
set forth in this Section 11.16, and breach of any representation and warranty
set forth in this Section 11.16, which failure or breach shall not have been
cured to the Bank's satisfaction within thirty (30) days of the date written
notice is given by the Agent to any Borrower of such failure or breach, shall
thereupon be deemed as an Event of Default, and shall permit the Banks and the
Agent to immediately (without any entitlement by the Borrowers to cure such
default) exercise any of the Banks' or the Agent's rights or remedies set forth
in the Facility Documents or available under applicable law.
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ARTICLE XII
ASSIGNMENTS AND PARTICIPATIONS
SECTION 12.1 Assignments.
(a) Any Bank may at any time assign to one or more Banks or
other institutions (each an "Assignee") all, or a proportionate part (equivalent
to an initial Commitment of not less than $5 million, or any higher multiple of
$5 million) of all, of its rights and obligations under this Agreement and its
Note, and such Assignee shall assume such rights and obligations, pursuant to an
Assignment and Assumption Agreement in substantially the form of Exhibit C
hereto executed by such Assignee and such transferor Bank. Upon execution and
delivery of such instrument and payment by such Assignee to such transferor Bank
of an amount equal to the purchase price agreed between such transferor Bank and
such Assignee, such Assignee shall be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank with a Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this subsection (a), the transferor Bank, the Agent, the other Banks
and the Borrowers shall make appropriate arrangements so that, if required, a
new Note is issued to the Assignee and the Assignee is made a party to this
Agreement. In connection with any such assignment, the transferor Bank shall pay
to the Agent an administrative fee for processing such assignment in the amount
of $2,500. If the Assignee is not incorporated under the laws of the United
States or a state thereof, it shall deliver to the Borrowers and the Agent
certification as to exemption from deduction or withholding of any United States
federal income taxes.
(b) Any Bank may at any time assign all or any portion of its
rights and its Note to a Federal Reserve Bank. No such assignment shall release
the transferor Bank from its obligations hereunder.
SECTION 12.2 Participations.
(a) Each Bank may sell participations to one or more
Participants in or to all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and Loans); provided,
however, that (i) such Bank's obligations under this Agreement (including its
Commitment to the Borrowers hereunder) shall remain unchanged; (ii) such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations; (iii) the Borrowers, the Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement; (iv) each such participation
shall be solely to a Participant; and (v) any Participant which is not an
affiliate of such Bank shall have no
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right to require such Bank to take or omit to take any action under this
Agreement, the Notes or other Facility Documents, including, but not limited to,
action extending the final maturity date of any Loan in which the Participant
has a participation, reducing the interest rate, fees or commissions on any Loan
in which such participation was sold, forgiving any principal of or interest,
fees or commissions payable on any Loan in which such participation was sold or
releasing of all or substantially all of any collateral as security for the
obligations of the Borrowers under the Facility Documents. Each Bank agrees to
incorporate the requirements set forth in the preceding sentence into each
participation agreement which such Bank enters into with any Participant. The
Borrowers agree that if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable, each
Participant shall, to the extent permitted by applicable law, be deemed to have
all rights of payment (including, without limitation, rights of setoff) in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement; provided, however, that any
Participant exercising such right shall be obligated to share with the Banks, as
if such Participant were a "Bank" hereunder, the amount of any such payment or
setoff in accordance with this Agreement.
(b) The Borrowers agree that each Participant shall, except to
the extent provided in its participation agreement, be entitled to the benefits
of this Agreement and the other Facility Documents with respect to its
participating interest. An assignment or other transfer which is not permitted
by Section 12.1 shall be given effect for purposes of this Agreement only to the
extent of a participating interest granted in accordance with this Section 12.2.
SECTION 12.3 Disclosure of Information. A Bank may, in connection with
any assignment or participation or proposed assignment or participation pursuant
to this Article XII, disclose to the Assignee, Participant, proposed Assignee or
proposed Participant any information relating to the Borrowers furnished to the
Bank by or on behalf of the Borrowers; provided that such proposed Assignee or
Participant, if not an affiliate of such Bank, executes a confidentiality letter
in favor of the Borrowers, which letter shall be in form and substance
reasonably satisfactory to the Borrowers.
SECTION 12.4 Consent of Borrowers. Notwithstanding any other provision
contained in this Article 12, if any assignment and/or participation permitted
by Section 12.1 and 12.2, respectively, would result in Bank One and NCB not
directly retaining Commitments required for Bank One and NCB, collectively, to
constitute the Required Banks, the written consent of the Borrowers must be
obtained prior to the consummation of any such assignment and/or participation,
which consent shall not be unreasonably withheld by the Borrowers.
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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
a national banking association
By: /s/ Thomas E. Redmond
------------------------------------------
Thomas E. Redmond, Vice President
National City Bank
a national banking association
By: /s/ Brian T. Strayton
------------------------------------------
Brian T. Strayton, Vice President
AGENT:
Bank One, NA
By: /s/ Thomas E. Redmond
------------------------------------------
Thomas E. Redmond, Vice President
BORROWERS:
MPW Industrial Services Group, Inc.
By: /s/ Daniel P. Buettin
------------------------------------------
Daniel P. Buettin, Vice President and
Chief Financial Officer
Aquatech Environmental Services, Inc.
By: /s/ Peter G. Schumacher
------------------------------------------
Peter G. Schumacher, Vice President
and Treasurer
Each of the Subsidiaries Listed on
Schedule I Hereto
By: /s/ Daniel P. Buettin
------------------------------------------
Daniel P. Buettin, Vice President and
Chief Financial Officer
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SCHEDULE I
Subsidiaries
MPW Industrial Services, Inc.
MPW Industrial Services, Ltd.
MPW Management Services Corp.
Weston Engineering, Inc.
ESI International, Inc.
ESI-North Limited
MPW Container Management Corp.
Maintenance Concepts, Inc.
MPW Container Management Corp. of Michigan
Gauthier Enterprises, Inc.
Clean Room Management Services, Inc.
<PAGE> 76
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
<PAGE> 77
SCHEDULE 5.20
Contingent Obligations
- ---------------------------------------------------
1. Contingent Obligations owed to the Banks.
<PAGE> 78
EXHIBIT A
FORM OF REVOLVING CREDIT LOAN NOTES
<PAGE> 79
REVOLVING CREDIT LOAN NOTE
$45,000,000.00 Columbus, Ohio November 2, 1998
Promise to Pay. Not later than November 1, 2001, for value received,
MPW Industrial Services Group, Inc. ("MPW Group"), Aquatech Environmental, Inc.
and each other Subsidiary of MPW listed on Schedule I attached hereto or made a
party hereto in accordance with the terms hereof (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 Forty-five Million Dollars ($45,000,000) or, if such principal is
less, the aggregate unpaid principal amount of all Loans made by the Bank to the
Borrowers pursuant to the Revolving Credit 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 Loan Agreement. Such interest shall be due
and payable on the dates set forth in such Revolving Credit 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 100 East Broad Street, Columbus, Ohio 43215, 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 Notes
referred to in the Revolving Credit Loan Agreement among the Borrowers, the
Bank, National City Bank and Bank One, NA, as Agent (the "Agent"), dated as of
November 2, 1998, as the same may be amended, modified, supplemented, renewed,
extended, 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.
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
<PAGE> 80
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.
Arbitration. The Bank, 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 Revolving Credit Loan
Note, the 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 MPW Group'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 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.
WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK (BY ITS ACCEPTANCE
HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR
-2-
<PAGE> 81
OTHERWISE) BETWEEN OR AMONG THE BANK, THE AGENT AND THE BORROWERS ARISING OUT OF
OR IN ANY WAY RELATED TO THE AGREEMENT, THIS REVOLVING CREDIT LOAN NOTE, ANY
OTHER FACILITY DOCUMENT, OR ANY RELATIONSHIP BETWEEN THE BANK AND THE BORROWERS.
THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO PROVIDE THE FINANCING
DESCRIBED HEREIN OR IN THE OTHER FACILITY DOCUMENTS.
Additional Borrowers. Each Person which becomes a Subsidiary after the
Closing Date shall be required to become a party to the Agreement and this
Revolving Credit Loan Note by the execution and delivery by such a Subsidiary
and the Agent of the Supplement in the form of Exhibit B attached to the
Agreement. Upon such execution and delivery, each such Subsidiary shall become a
Borrower under the Agreement and this Revolving Credit Loan Note with the same
force and effect as if originally named a Borrower under the Agreement and this
Revolving Credit Loan Note. The execution of and delivery of any such
Supplements shall not require the consent of any Borrower. The rights and
obligations of each Borrower under the Agreement and this Revolving Credit Loan
Note shall remain in full force and effect notwithstanding the addition of any
new Borrower to the Agreement and this Revolving Credit Loan Note. Each such
Supplement, or a photocopy thereof (which shall be as effective as a manually
signed counterpart of the Supplement) shall be attached to this Revolving Credit
Loan Note as an allonge.
BORROWERS:
MPW Industrial Services Group, Inc.
By:
------------------------------------------
Daniel P. Buettin, Vice President and
Chief Financial Officer
Aquatech Environmental Services, Inc.
By:
------------------------------------------
Peter G. Schumacher, Vice President
and Treasurer
Each of the Subsidiaries Listed on
Schedule I Hereto
By:
------------------------------------------
Daniel P. Buettin, Vice President and
Chief Financial Officer
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<PAGE> 82
SCHEDULE I
Subsidiaries
MPW Industrial Services, Inc.
MPW Industrial Services, Ltd.
MPW Management Services Corp.
Weston Engineering, Inc.
ESI International, Inc.
ESI-North Limited
MPW Container Management Corp.
Maintenance Concepts, Inc.
MPW Container Management Corp. of Michigan
Gauthier Enterprises, Inc.
Clean Room Management Services, Inc.
-4-
<PAGE> 83
REVOLVING CREDIT LOAN NOTE
$30,000,000.00 Columbus, Ohio November 2, 1998
Promise to Pay. Not later than November 1, 2001, for value received,
MPW Industrial Services Group, Inc. ("MPW Group"), Aquatech Environmental, Inc.
and each other Subsidiary of MPW listed on Schedule I attached hereto or made a
party hereto in accordance with the terms hereof (collectively, the
"Borrowers"), jointly and severally, hereby promise to pay to the order of
National City Bank (the "Bank") or its assigns, as further provided herein, the
principal amount of Thirty Million Dollars ($30,000,000) or, if such principal
is less, the aggregate unpaid principal amount of all Loans made by the Bank to
the Borrowers pursuant to the Revolving Credit 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 Loan Agreement. Such interest shall be due
and payable on the dates set forth in such Revolving Credit 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 100 East Broad Street, Columbus, Ohio 43215, 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 Notes
referred to in the Revolving Credit Loan Agreement among the Borrowers, the
Bank, Bank One, NA and Bank One, NA, as Agent (the "Agent"), dated as of
November 2, 1998, as the same may be amended, modified, supplemented, renewed,
extended, 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.
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
<PAGE> 84
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.
Arbitration. The Bank, 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 Revolving Credit Loan
Note, the 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 MPW Group'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 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.
WAIVER OF JURY TRIAL. THE BORROWERS AND THE BANK (BY ITS ACCEPTANCE
HEREOF) HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR
-2-
<PAGE> 85
OTHERWISE) BETWEEN OR AMONG THE BANK, THE AGENT AND THE BORROWERS ARISING OUT OF
OR IN ANY WAY RELATED TO THE AGREEMENT, THIS REVOLVING CREDIT LOAN NOTE, ANY
OTHER FACILITY DOCUMENT, OR ANY RELATIONSHIP BETWEEN THE BANK AND THE BORROWERS.
THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO PROVIDE THE FINANCING
DESCRIBED HEREIN OR IN THE OTHER FACILITY DOCUMENTS.
Additional Borrowers. Each Person which becomes a Subsidiary after the
Closing Date shall be required to become a party to the Agreement and this
Revolving Credit Loan Note by the execution and delivery by such a Subsidiary
and the Agent of the Supplement in the form of Exhibit B attached to the
Agreement. Upon such execution and delivery, each such Subsidiary shall become a
Borrower under the Agreement and this Revolving Credit Loan Note with the same
force and effect as if originally named a Borrower under the Agreement and this
Revolving Credit Loan Note. The execution of and delivery of any such
Supplements shall not require the consent of any Borrower. The rights and
obligations of each Borrower under the Agreement and this Revolving Credit Loan
Note shall remain in full force and effect notwithstanding the addition of any
new Borrower to the Agreement and this Revolving Credit Loan Note. Each such
Supplement, or a photocopy thereof (which shall be as effective as a manually
signed counterpart of the Supplement) shall be attached to this Revolving Credit
Loan Note as an allonge.
BORROWERS:
MPW Industrial Services Group, Inc.
By:
------------------------------------------
Daniel P. Buettin, Vice President and
Chief Financial Officer
Aquatech Environmental Services, Inc.
By:
------------------------------------------
Peter G. Schumacher, Vice President
and Treasurer
Each of the Subsidiaries Listed on
Schedule I Hereto
By:
------------------------------------------
Daniel P. Buettin, Vice President and
Chief Financial Officer
-3-
<PAGE> 86
SCHEDULE I
Subsidiaries
MPW Industrial Services, Inc.
MPW Industrial Services, Ltd.
MPW Management Services Corp.
Weston Engineering, Inc.
ESI International, Inc.
ESI-North Limited
MPW Container Management Corp.
Maintenance Concepts, Inc.
MPW Container Management Corp. of Michigan
Gauthier Enterprises, Inc.
Clean Room Management Services, Inc.
-4-
<PAGE> 87
EXHIBIT B
FORM OF SUPPLEMENT
<PAGE> 88
SUPPLEMENT NO. _____
(To Revolving Credit Loan Agreement)
THIS SUPPLEMENT NO. _____, (the "Supplement') dated as of
_______________, to the Revolving Credit Loan Agreement dated as of November 2,
1998 (the "Agreement"), among MPW Industrial Services Group, Inc. ("MPW Group"),
Aquatech Environmental, Inc. and each other Subsidiary of MPW listed on Schedule
I attached hereto or which has entered into a previous Supplement (collectively,
the "Borrowers"), and Bank One, NA, as Agent (in such capacity, the "Agent"),
for the Banks (as defined herein).
BACKGROUND INFORMATION
A. Reference is made to the (i) Revolving Credit Loan Agreement dated
as of November 2, 1998 (as the same may be amended, modified, supplemented,
renewed, extended, restated or replaced from time to time, the "Agreement"),
among the Borrowers, Bank One, NA ("Bank One"), National City Bank ("NCB",
which, together with Bank One, the "Banks"), and the Agent; (ii) the Revolving
Credit Loan Note dated as of November 2, 1998 (as the same may be amended,
modified, supplemented, renewed, extended, restated or replaced from time to
time, the "Bank One Note") in the amount of $45 million by the Borrowers payable
to the order of Bank One; and (iii) the Revolving Credit Loan Note dated as of
November 2, 1998 (as the same may be amended, modified, supplemented, renewed,
extended, restated or replaced from time to time, the "NCB Note") in the amount
of $30 million by the Borrowers payable to the order of NCB.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Agreement.
C. The Borrowers have entered into the Agreement in order to induce the
Banks to make Loans and Bank One to issue Standby L/Cs. Section 11.15 of the
Agreement provides that additional Subsidiaries of the Borrowers shall become
Borrowers under the Agreement, the Bank One Note, the NCB Note (such notes being
referred to collectively as the "Notes") and the Standby L/C Applications by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Borrower") is executing this Supplement in
accordance with the requirements of the Agreement to become a Borrower under the
Agreement, the Notes and the Standby L/C Applications in order to induce the
Banks to make additional Loans and Bank One to issue additional Standy L/Cs and
as consideration for Loans previously made and Standby L/Cs previously issued.
PROVISIONS
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<PAGE> 89
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Agent and the New Borrower agree as follows:
SECTION 1. In accordance with Section 11.15 of the Agreement, the New
Borrower by its signature below becomes a Borrower under the Agreement, the
Notes and the Standby L/C Applications with the same force and effect as if
originally named therein as a Borrower and the New Borrower hereby (a) agrees to
all the terms and provisions of the Agreement, the Notes and the Standby L/C
Applications applicable to it as a Borrower thereunder, and (b) represents and
warrants that the representations and warranties made by it as a Borrower
thereunder are true and correct on and as of the date hereof. Each reference to
a "Borrower" in the Agreement, the Notes and the Standby L/C Applications shall
be deemed to include the New Borrower. The Agreement, the Notes and the Standby
L/C Applications are hereby incorporated herein by reference.
SECTION 2. The New Borrower represents and warrants to the Agent and
the other Banks that this Supplement has been duly authorized, executed and
delivered by it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts), each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Agent shall
have received counterparts of this Supplement that, when taken together, bear
the signatures of the New Borrower and the Agent. Delivery of an executed
signature page to this Supplement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Agreement and
the Notes shall remain in full force and effect.
SECTION 5. This Supplement, or a photocopy hereof (which shall be as
effective as a manually signed counterpart of this Supplement) shall be attached
to each Note as an allonge.
SECTION 6. This Supplement shall be governed by, and construed in
accordance with, the laws of the State of Ohio.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Agreement, the Notes and the Standby L/C Applications shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any
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<PAGE> 90
other jurisdiction). The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 11.4 of the Agreement.
SECTION 9. The New Borrower agrees that upon the written demand of the
Banks, the Agent or 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 the Notes, the 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 MPW Group'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 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 10. WAIVER OF JURY TRIAL. THE NEW BORROWER, THE AGENT AND THE
BANKS (BY THEIR ACCEPTANCE HEREOF) HEREBY VOLUNTARILY,
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<PAGE> 91
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) BETWEEN OR AMONG THE NEW BORROWER, THE BANKS, THE AGENT AND THE
BORROWERS ARISING OUT OF OR IN ANY WAY RELATED TO THE AGREEMENT, THE NOTES, ANY
OTHER FACILITY DOCUMENT, OR ANY RELATIONSHIP BETWEEN THE NEW BORROWER, THE BANKS
AND THE BORROWERS. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANKS TO
PROVIDE THE FINANCING DESCRIBED HEREIN OR IN THE OTHER FACILITY DOCUMENTS.
SECTION 11. The New Borrower agrees to reimburse the Agent for its
reasonable out-of-pocket expenses in connection with this Supplement, including
the reasonable fees, other charges and disbursements of counsel for the Agent.
IN WITNESS WHEREOF, the New Borrower and the Agent have duly executed
this Supplement to the Agreement as of the day and year first above written.
[Name of New Borrower],
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Bank One, NA, as Agent,
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-5-
<PAGE> 92
SCHEDULE I
Subsidiaries
MPW Industrial Services, Inc.
MPW Industrial Services, Ltd.
MPW Management Services Corp.
Weston Engineering, Inc.
ESI International, Inc.
ESI-North Limited
MPW Container Management Corp.
Maintenance Concepts, Inc.
MPW Container Management Corp. of Michigan
Gauthier Enterprises, Inc.
Clean Room Management Services, Inc.
-6-
<PAGE> 93
EXHIBIT C
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
-7-
<PAGE> 94
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (the "Assignment"), dated as
of ____________, ______, is made by and between ____________________ (the
"Assignor"), and _____________________ (the "Assignee").
BACKGROUND INFORMATION
A. This Assignment relates to the Revolving Credit Loan Agreement dated
as of November 2, 1998 (as the same may be amended, modified, supplemented,
renewed, extended, restated or replaced from time to time, the "Agreement")
among MPW Industrial Services Group, Inc. ("MPW Group"), Aquatech Environmental,
Inc. and the other Borrowers party thereto, the Assignor and the other Banks
party thereto, as Banks, and the Agent.
B. As provided under the Agreement, the Assignor has a Commitment to
make [Revolving Credit] [Standby L/C] to the Borrowers in an aggregate principal
amount at any time outstanding not to exceed $_____________.
C. [Revolving Credit Loans] [Standby L/Cs] made to the Borrowers by the
Assignor under the Agreement in the aggregate principal amount of
$______________ are outstanding at the date hereof.
D. The Assignor proposes to assign to the Assignee all of the rights of
the Assignor under the Agreement in respect of a portion of its Commitment in
respect of [Revolving Credit Loans] [Standby L/Cs] thereunder in an amount equal
to $___________ (the "Assigned Amount"), together with a corresponding portion
of its outstanding [Revolving Credit Loans] [Standby L/Cs], and the Assignee
proposes to accept assignment of such rights and assume the corresponding
obligations from the Assignor on such terms.
PROVISIONS
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Agreement to the extent of
the Assigned Amount, and the Assignee hereby accepts such assignment from the
Assignor and assumes all of the obligations of the Assignor under the Agreement
to the extent of the Assigned Amount, including the purchase from the Assignor
of the corresponding portion of the principal amount of the [Revolving Credit
Loans] [Standby L/Cs] made by the Assignor outstanding at the date hereof. Upon
the execution and delivery hereof by the Assignor and the
<PAGE> 95
Assignee and the payment of the amounts specified in Section 3 required to be
paid on the date hereof (i) the Assignee shall, as of the date hereof, succeed
to the rights and be obligated to perform the obligations of a Bank under the
Agreement with a [Commitment] [Revolving Credit Loans] [Standby L/Cs] in an
amount equal to the Assigned Amount, and (ii) the Commitment of the Assignor
shall, as of the date hereof, be reduced by a like amount and the Assignor
released from its obligations under the Agreement to the extent such obligations
have been assumed by the Assignee. The assignment provided for herein shall be
without recourse to the Assignor.
SECTION 3. Payments. As consideration for the assignment and sale
contemplated in Section 2, the Assignee shall pay to the Assignor on the date
hereof in Federal funds the amount heretofore agreed between them. It is
understood that facility fees accrued prior to the date hereof are for the
account of the Assignor and such fees accruing from and including the date
hereof are for the account of the Assignee. Each of the Assignor and the
Assignee hereby agrees that if it receives any amount under the Agreement which
is for the account of the other party, it shall receive the same for the account
of such other party to the extent of such other party's interest therein and
shortly pay the same to such other party.
SECTION 4. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrowers, or the validity and enforceability of the obligations of the
Borrowers in respect of the Agreement or any Note. The Assignee acknowledges
that it has, independently and without reliance on the Assignor, and based on
such documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrowers.
SECTION 5. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
SECTION 6. Counterparts. This Assignment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 7. Arbitration. The Assignor, the Assignee, the Banks, the
Agent and the 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 Assignment, any Note, the 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
-2-
<PAGE> 96
arbitration provision shall be conducted in the city nearest the MPW Group'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 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 8. WAIVER OF JURY TRIAL. THE ASSIGNOR, THE ASSIGNEE, THE
BORROWERS AND THE BANKS (BY THEIR ACCEPTANCE HEREOF) HEREBY VOLUNTARILY,
KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) BETWEEN OR AMONG THE ASSIGNOR, THE ASSIGNEE, THE BANKS, THE AGENT AND
THE BORROWERS ARISING OUT OF OR IN ANY WAY RELATED TO THIS ASSIGNMENT, THE
AGREEMENT, ANY NOTE, ANY OTHER FACILITY DOCUMENT, OR ANY RELATIONSHIP BETWEEN
THE ASSIGNOR, THE ASSIGNEE, THE BANKS AND THE BORROWERS. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE BANKS TO PROVIDE THE FINANCING DESCRIBED HEREIN OR IN
THE OTHER FACILITY DOCUMENTS.
-3-
<PAGE> 97
IN WITNESS WHEREOF, the parties have caused this Assignment to be
executed and delivered by their duly authorized officers as of the date first
above written.
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: By:
------------------------------- -------------------------------------
Name: Name:
----------------------------- -----------------------------------
Title: Title:
--------------------------- ----------------------------------
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MPW
INDUSTRIAL SERVICES GROUP, INC. FORM 10-Q FOR THE QUARTERLY PERIOD ENDED
SEPTEMBER 30, 1998 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-START> JUL-01-1998
<PERIOD-END> SEP-30-1998
<CASH> 121
<SECURITIES> 0
<RECEIVABLES> 24,567
<ALLOWANCES> 1,062
<INVENTORY> 5,521
<CURRENT-ASSETS> 31,933
<PP&E> 61,221
<DEPRECIATION> 30,004
<TOTAL-ASSETS> 89,095
<CURRENT-LIABILITIES> 17,169
<BONDS> 26,412
0
0
<COMMON> 107
<OTHER-SE> 43,460
<TOTAL-LIABILITY-AND-EQUITY> 89,095
<SALES> 29,837
<TOTAL-REVENUES> 29,837
<CGS> 19,958
<TOTAL-COSTS> 26,639
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 489
<INCOME-PRETAX> 2,709
<INCOME-TAX> 1,110
<INCOME-CONTINUING> 1,599
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,599
<EPS-PRIMARY> 0.15
<EPS-DILUTED> 0.14
</TABLE>
