<PAGE> 1
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, 1999
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, 1999, 10,879,334 shares of the issuer's common stock,
without par value, were outstanding.
<PAGE> 2
MPW INDUSTRIAL SERVICES GROUP, INC.
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE
<S> <C> <C>
Item 1. Financial Statements
Consolidated Balance Sheets as of September 30, 1999 (unaudited) and June 30, 1999...........3
Consolidated Statements of Operations for the three months ended September 30,
1999 and 1998 (unaudited)....................................................................4
Consolidated Statements of Cash Flows for the three months ended September 30,
1999 and 1998 (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..................................13
PART II. OTHER INFORMATION
Item 1. Legal Proceedings...........................................................................13
Item 2. Changes in Securities and Use of Proceeds...................................................13
Item 3. Defaults Upon Senior Securities.............................................................13
Item 4. Submission of Matters to a Vote of Security Holders.........................................14
Item 5. Other Information...........................................................................14
Item 6. Exhibits and Reports on Form 8-K............................................................14
SIGNATURES ............................................................................................15
EXHIBIT INDEX ............................................................................................16
</TABLE>
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PART I. -- FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS.
MPW INDUSTRIAL SERVICES GROUP, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
SEPTEMBER 30, JUNE 30,
1999 1999
-------- --------
(UNAUDITED)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 325 $ 318
Accounts receivable, net 38,972 35,744
Inventories 9,279 9,044
Deferred income taxes 1,390 1,492
Prepaid expenses 1,734 1,868
Other current assets 1,851 973
-------- --------
53,551 49,439
Property and equipment, net 45,567 41,429
Noncurrent assets:
Intangibles, net 56,915 50,946
Other assets 418 436
-------- --------
Total assets $156,451 $142,250
======== ========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 9,893 $ 9,968
Accrued compensation and related taxes 3,043 4,638
Current maturities of noncurrent liabilities 690 714
Other accrued liabilities 7,159 5,846
-------- --------
20,785 21,166
Noncurrent liabilities:
Long-term debt 77,162 65,475
Deferred income taxes 4,456 4,456
Other 221 312
-------- --------
81,839 70,243
Minority interest 1,350 1,275
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; 10,876,777 and 10,784,945 shares
issued and outstanding at September 30, 1999 and June 30, 1999, respectively 109 108
Additional paid-in capital 41,409 40,531
Retained earnings 10,959 8,927
-------- --------
52,477 49,566
-------- --------
Total liabilities and shareholders' equity $156,451 $142,250
======== ========
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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MPW INDUSTRIAL SERVICES GROUP, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(in thousands, except per share data)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
--------------------
1999 1998
------- -------
(UNAUDITED)
<S> <C> <C>
Revenues $46,396 $29,837
Costs and expenses:
Cost of services 31,295 19,958
Selling, general and administrative expenses 8,181 5,342
Depreciation and amortization 2,230 1,339
------- -------
Total costs and expenses 41,706 26,639
------- -------
Income from operations 4,690 3,198
Interest expense, net 1,310 489
------- -------
Income from operations before income taxes 3,380 2,709
Provision for income taxes 1,352 1,110
------- -------
Net income $ 2,028 $ 1,599
======= =======
Net income per share $ 0.19 $ 0.15
======= =======
Net income per share, assuming dilution $ 0.17 $ 0.14
======= =======
Weighted average common shares outstanding 10,845 10,610
Weighted average common shares outstanding, assuming dilution 11,695 11,301
</TABLE>
The accompanying notes are an integral part of these consolidated financial
statements.
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MPW INDUSTRIAL SERVICES GROUP, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(in thousands)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
-----------------------
1999 1998
-------- --------
(UNAUDITED)
<S> <C> <C>
CASH FLOW FROM OPERATING ACTIVITIES:
Net income $ 2,028 $ 1,599
Adjustments to reconcile net income to net cash used in operating activities:
Depreciation 1,565 1,068
Amortization 665 271
Loss on disposals of assets 104 2
Deferred income taxes 102 280
Changes in operating assets and liabilities:
Accounts receivable (2,798) (2,334)
Inventories (235) 735
Prepaid expenses and other assets (722) (1,745)
Accounts payable (122) (1,251)
Other accrued liabilities (1,077) (574)
-------- --------
Net cash used in operating activities (490) (1,949)
CASH FLOW FROM INVESTING ACTIVITIES:
Purchases of property and equipment (5,593) (3,023)
Purchase of businesses, net of acquired cash (4,607) (7,040)
Proceeds from the disposal of property and equipment 29 24
-------- --------
Net cash used in investing activities (10,171) (10,039)
CASH FLOW FROM FINANCING ACTIVITIES:
Proceeds from issuance of common stock, net 29 --
Proceeds from revolving credit facility 20,690 14,250
Payments on revolving credit facility (9,928) (6,365)
Proceeds from notes payable -- 6,804
Payments on notes payable (104) (3,007)
Payments on capital lease obligations (19) (80)
-------- --------
Net cash provided by financing activities 10,668 11,602
-------- --------
Increase (decrease) in cash and cash equivalents 7 (386)
Cash and cash equivalents at beginning of year 318 507
-------- --------
Cash and cash equivalents at end of period $ 325 $ 121
======== ========
</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, 1999
(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") provide
technically-based services, including industrial cleaning and facility
maintenance, industrial filtration management, contamination control services
for critical cleanroom environments, industrial container cleaning and
industrial process water purification. Such services are primarily provided at
customer facilities. The Company serves customers in numerous industries
including automotive, electric power, pulp and paper, chemical, steel,
transportation, semiconductor, microelectronics and pharmaceutical. The Company
provides services primarily throughout the United States, Mexico and Canada.
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, 1999
and 1998, 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, 1999 ("Annual Report"). The
results of operations for the three months ended September 30, 1999 and 1998 are
not necessarily indicative of the results for the full year (see Note 7 for
further information regarding fluctuations in quarterly results).
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.
NOTE 2. ACQUISITIONS
THERMAL COATING On August 10, 1999, effective April 1, 1999, the
Company purchased substantially all of the assets of Thermal Coating, Inc.
("Thermal Coating") for an aggregate consideration of $3,105,000. The
consideration included the issuance of preferred stock of Pentagon Technologies
Group, Inc., a wholly-owned subsidiary of the Company ("Pentagon"), representing
1% of the equity in Pentagon. Also included in the consideration is the issuance
of an unsecured convertible subordinated promissory note with a principal amount
of $1,000,000 and accruing interest at 10%, which is convertible into shares of
common stock of the Company. The acquisition has been accounted for using the
purchase method of accounting. The accompanying financial statements include the
results of operations of Thermal Coating from the effective acquisition date
through September 30, 1999.
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, 1999, the Company paid additional
consideration of $3,281,000, of which $579,000 related to the issuance of 54,485
shares of the Company's common stock.
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NOTE 3. INTANGIBLES
Intangibles are summarized as follows (in thousands):
<TABLE>
<CAPTION>
SEPTEMBER 30, JUNE 30,
1999 1999
---------------- ------------
<S> <C> <C>
Goodwill $47,969 $42,318
Customer lists 7,347 6,971
Patents 1,230 1,264
Non-compete agreements 369 393
------------ ------------
$56,915 $50,946
============ ============
</TABLE>
Accumulated amortization of intangibles as of September 30, 1999 and
June 30, 1999 was $2,891,000 and $2,265,000, respectively.
NOTE 4. EARNINGS PER SHARE
The following table sets forth the computation of basic and diluted
earnings per share (in thousands, except per share data):
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
------------------------
1999 1998
------------------------
<S> <C> <C>
Numerator for basic earnings per share-- net income $ 2,028 $1,599
Effect of assumed exercise of equity interest in Pentagon 3 --
------- ------
Numerator for diluted earnings per share -- net income after
assumed conversion $ 2,025 $1,599
======= ======
Denominator for basic earnings per share -- weighted average common
shares 10,845 10,610
Effect of dilutive securities:
Dilutive employee stock options 652 691
Preferred stock of Pentagon 198 --
------- -------
Dilutive potential common shares 850 691
Denominator for diluted earnings per share -- adjusted weighted
average common shares and assumed conversions 11,695 11,301
======= =======
Net income per share $ 0.19 $ 0.15
======= =======
Net income per share, assuming dilution $ 0.17 $ 0.14
======= =======
</TABLE>
Options to purchase 438,250 and 330,000 shares of common stock at a
weighted average price of $11.03 and $10.88 per share, respectively, were
outstanding during the three months ended September 30, 1999 and 1998,
respectively, but were not included in the computation of diluted earnings per
share because the options' exercise price was greater than the average market
price of the common shares and, therefore, the effect would be antidilutive.
The 10% convertible debenture that was issued in connection with the
acquisition of Thermal Coating is convertible into 86,505 shares of common stock
of the Company if the common stock price is at least $11.56. These shares were
not included in the computation of diluted earnings per share because the
conversion price of the convertible debenture was greater than the market price
of the common shares at the end of the three months ended September 30, 1999
and, therefore, the effect would be antidilutive.
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NOTE 5. OPERATING SEGMENTS
Summarized financial information concerning the Company's reportable
segments is shown in the following table. The "Other" column primarily includes
corporate related items and are not allocated to the Company's reportable
segments.
<TABLE>
<CAPTION>
FACILITIES
SUPPORT FILTRATION OTHER TOTAL
------------------------------------------------
(IN THOUSANDS)
<S> <C> <C> <C> <C>
THREE MONTHS ENDED SEPTEMBER 30, 1999
Revenues $ 34,060 $12,336 $ -- $ 46,396
Depreciation and amortization 1,955 193 82 2,230
Income (loss) from operations 5,531 1,096 (1,937) 4,690
Assets 114,822 34,628 7,001 156,451
THREE MONTHS ENDED SEPTEMBER 30, 1998
Revenues $ 21,968 $ 7,869 $ -- $ 29,837
Depreciation and amortization 1,157 115 67 1,339
Income (loss) from operations 3,905 634 (1,341) 3,198
Assets 62,278 24,125 2,692 89,095
</TABLE>
NOTE 6. SUBSEQUENT EVENTS
In October 1999, the Company entered into a new credit agreement with
its principal banks and two new banks (the "Credit Facility") to replace the
previous credit agreement. The Credit Facility provides the Company with up to
$100,000,000 of revolving credit availability for a three-year period and
includes a mechanism that allows the Company, with the approval of the banks, to
increase the capacity under the Credit Agreement up to $150,000,000. The Credit
Facility is subject to substantially the same terms and conditions as the
previous credit agreement.
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 trend 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.
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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 our
business operations as well as other risk factors identified in "Investment
Considerations" in our Annual Report. We undertake no obligation and do 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 our
Unaudited Consolidated Financial Statements and related notes included elsewhere
in this Form 10-Q. The following information should also be read in conjunction
with our Audited Consolidated Financial Statements and related notes and MD&A
for the year ended June 30, 1999 as contained in our Annual Report.
OVERVIEW
Since our fiscal year ended June 30, 1998, several events have occurred
that affect the comparability of our results of operations from period to
period. These events include:
UNUSUAL EVENTS IN FISCAL 1999 In late June 1998 through July 1998,
General Motors experienced a strike, which affected our operations primarily at
our industrial filtration management and our industrial container cleaning
service lines.
In March 1999, we experienced a fire at our Austin, Texas facility.
This facility provided critical parts cleaning within the cleanroom services
service line. The fire caused the facility, and most equipment within the
facility, to be unusable. A portion of the business from this facility was
temporarily transferred to our Hopewell Junction, New York facility and the
remainder was temporarily lost to other service providers. We obtained a new
site in Austin to replace the damaged facility and completed construction in
August 1999. We expect that the new facility will ramp up to pre-fire business
levels in the second quarter of fiscal 2000.
ACQUISITIONS Since June 1998, we have acquired 11 businesses that
represent an aggregate increase in our revenues of approximately $56.0 million.
We agreed to pay an aggregate consideration for these businesses of
approximately $46.4 million, which included cash, common stock, preferred stock
of one of our subsidiaries and contingent consideration for future performance.
We accounted for each of these acquisitions using the purchase method of
accounting and each are included in our results of operations only from the date
of acquisition. Certain of the acquisitions related to our entry in late 1998
into a new service line that provides contamination control services for
critical cleanroom environments. The companies have been combined into a single
subsidiary of MPW, Pentagon Technologies Group, Inc.
As a result of these acquisitions, we do not believe that our results
of operations are necessarily comparable on a period to period basis. Our
discussion of results of operations below should be read in conjunction with our
Annual Report for the year ended June 30, 1999 and the Consolidated Unaudited
Financial Statements and related notes included herein where each of these
acquisitions has been described in more detail.
GENERAL
We primarily derive our revenues from services under time and
materials, fixed price and unit price contracts. We recognize revenues from time
and materials type contracts based on performance and efforts expended. We
record revenues from non-contract activities as we perform services or sell
goods.
Cost of services includes all direct labor, materials, subcontractor
and other costs related to the performance of our services. Cost of services
also includes all costs associated with our operating equipment, excluding
depreciation and amortization.
Selling, general and administrative expenses include management
salaries, clerical and administrative overhead, professional services, costs
associated with marketing and sales efforts and costs associated with our
information systems.
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Depreciation and amortization consists of depreciation of operating
equipment and amortization of capital leases and intangibles. Depreciation is
calculated using the straight-line method over the estimated useful lives of
property and equipment. We amortize capital leases on a straight-line basis over
the lease term and goodwill and other intangibles on a straight-line basis over
periods not exceeding 25 years.
RESULTS OF OPERATIONS
The following table sets forth selected statement of income data as a
percentage of revenues:
<TABLE>
<CAPTION>
THREE MONTHS ENDED
SEPTEMBER 30,
------------------
1999 1998
----- -----
<S> <C> <C>
Revenues 100.0% 100.0%
Costs and expenses:
Cost of services 67.5 66.9
Selling, general and administrative expenses 17.6 17.9
Depreciation and amortization 4.8 4.5
----- -----
Total costs and expenses 89.9 89.3
----- -----
Income from operations 10.1 10.7
Interest expense, net 2.8 1.6
----- -----
Income before taxes 7.3 9.1
Provision for income taxes 2.9 3.7
----- -----
Net income 4.4% 5.4%
===== =====
</TABLE>
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED TO THREE MONTHS ENDED
SEPTEMBER 30, 1998
Revenues. Revenues increased by $16.6 million, or 55.5%, to $46.4
million in the three months ended September 30, 1999 from $29.8 million in the
three months ended September 30, 1998. This increase primarily came from
acquisitions that were completed since June 30, 1998, which contributed an
aggregate of $10.0 million of incremental growth in revenues, but also included
our internal rate of growth in revenues in the three months ended September 30,
1999, which was 21.9%.
Revenues in the Industrial Facilities Support Services segment
increased by $12.1 million, or 55.0%, to $34.1 million in the three months ended
September 30, 1999 from $22.0 million in the three months ended September 30,
1998. This increase primarily came from certain acquisitions, which contributed
an aggregate of $8.4 million of incremental growth in revenues, but also
included an internal rate of growth in revenues for this segment in the three
months ended September 30, 1999 of 16.6%.
Revenues in the Industrial Filtration Products and Services segment
increased by $4.5 million, or 56.8%, to $12.3 million in the three months ended
September 30, 1999 from $7.9 million in the three months ended September 30,
1998. This increase is primarily the result of internal growth of 36.4%, but is
also due to certain acquisitions, which contributed an aggregate of $1.6 million
of incremental growth in revenues.
Cost of Services. Cost of services increased by $11.3 million, or
56.8%, to $31.3 million in the three months ended September 30, 1999 from $20.0
million in the three months ended September 30, 1998. Cost of services as a
percentage of revenues increased to 67.5% in the three months ended September
30, 1999 from 66.9% in the three months ended September 30, 1998. The increase
in cost of services as a percentage of revenues is the result of investments
that were made in new facilities for new customers within our industrial
cleaning and facility maintenance service line for which the revenues have not
yet been realized and a significant amount of one-time project work in that same
service line that had a higher labor component and a lower equipment component
resulting in project margins that are below average. These were partially offset
by improved operating margins in our filtration management and container
cleaning service lines that resulted from improved operating efficiencies in the
three months ended September 30, 1999 and the negative impact on margins related
to the General Motors strike in the three months ended September 30, 1998.
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Selling, General and Administrative Expenses. Selling, general and
administrative expenses increased by $2.8 million, or 53.1%, to $8.2 million in
the three months ended September 30, 1999 from $5.3 million in the three months
ended September 30, 1998. The increase in selling, general and administrative
expenses is primarily due to the overhead costs assumed in the 11 acquisitions
completed since June 30, 1998 and other investments in our infrastructure to
support overall growth. Selling, general and administrative expenses decreased
as a percentage of revenues to 17.6% in the three months ended September 30,
1999 from 17.9% in the three months ended September 30, 1998.
Depreciation and Amortization. Depreciation and amortization increased
by $891,000, or 66.5%, to $2.2 million in the three months ended September 30,
1999 from $1.3 million in the three months ended September 30, 1998.
Depreciation and amortization increased as a percentage of revenues to 4.8% in
the three months ended September 30, 1999 from 4.5% in the three months ended
September 30, 1998. This increase is a result of additional goodwill and other
intangible assets arising out of acquisitions and additional capital
expenditures related to our growth.
Income from Operations. Income from operations in the Industrial
Facilities Support Services segment increased by $1.6 million, or 41.6%, to $5.5
million in the three months ended September 30, 1999 from $3.9 million in the
three months ended September 30, 1998. This increase is primarily the result of
strong internal growth, improved operating efficiencies in our industrial
container cleaning service line and certain acquisitions. Income from operations
decreased as a percentage of revenues to 16.2% in the three months ended
September 30, 1999 from 17.8% in the three months ended September 30, 1998. The
decrease in operating margin is due to (a) investments that were made in new
facilities for new customers within our industrial cleaning and facility
maintenance service line for which the revenues have not yet been realized and
(b) a significant amount of one-time project work in that same service line that
had a higher labor component and a lower equipment component resulting in
project margins that are below average. This decrease is partially offset by
improved operating margins in our container cleaning service line that resulted
from improved operating efficiencies in the three months ended September 30,
1999 and the negative impact on margins related to the General Motors strike in
the three months ended September 30, 1998.
Income from operations in the Industrial Filtration Products and
Services segment increased by $462,000, or 72.9%, to $1.1 million in the three
months ended September 30, 1999 from $634,000 in the three months ended
September 30, 1998. Income from operations increased as a percentage of revenues
to 8.9% in the three months ended September 30, 1999 from 8.1% in the three
months ended September 30, 1998. This increase in operating margin is due to
improved operating and administrative efficiencies in the three months ended
September 30, 1999 and the negative impact on margins related to the General
Motors strike in the three months ended September 30, 1998.
Consolidated income from operations increased $1.5 million, or 46.7%,
to $4.7 million in the three months ended September 30, 1999 from $3.2 million
in the three months ended September 30, 1998. Consolidated income from
operations decreased as a percentage of revenues to 10.1% in the three months
ended September 30, 1999 from 10.7% in the three months ended September 30,
1998. The increase in consolidated income from operations and the decrease in
consolidated operating margin are due to the factors discussed above.
Interest Expense, net. Interest expense increased $821,000, or 167.9%,
to $1.3 million in the three months ended September 30, 1999 from $489,000 in
the three months ended September 30, 1998. This increase is the result of new
borrowings primarily related to acquisitions.
Provision for Income Taxes. The provision for income taxes for the
three months ended September 30, 1999 and 1998 reflects an effective rate of 40%
and 41%, respectively.
Net Income and Net Income per Share. Net income increased $429,000, or
26.8%, to $2.0 million for the three months ended September 30, 1999 from $1.6
million for the three months ended September 30, 1998. Assuming dilution, net
income per share increased to $0.17 for the three months ended September 30,
1999 from $0.14 for the three months ended September 30, 1998. These increases
are due to the factors discussed above.
QUARTERLY RESULTS AND SEASONALITY
Our 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.
Our quarterly results of operations may fluctuate significantly as a result of a
number of factors over which we have no control, including
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our customers' budgetary constraints, the timing and duration of our customers'
planned maintenance activities and shutdowns, changes in our 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, 1999, we had cash and cash equivalents of $325,000
and working capital of $32.8 million. During the three months ended September
30, 1999, we used $490,000 for operating activities and made capital investments
of $5.6 million.
In the three months ended September 30, 1999, we completed one
acquisition that required an aggregate of $1.9 million in cash, net of cash
received, and the issuance of an unsecured convertible subordinated promissory
note with a principal amount of $1.0 million, which is convertible into shares
of common stock of the Company. In addition, we paid additional consideration of
$2.7 million in cash and issued 54,485 shares of our common stock in connection
with several of our other acquisition agreements that provide for additional
consideration to be paid based on the achievement of certain objectives. The
borrowings under our revolving credit facility reached $75.4 million as of
September 30, 1999.
During October 1999, we entered into our current credit facility with
our principal banks and two additional banks. The current credit facility
provides us with up to $100.0 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 our current credit facility,
the entire $100.0 million is available for general corporate purposes, including
working capital, capital expenditures and acquisitions. Borrowing under our
current credit facility is at rates, based on the prime or Eurodollar rate, that
we believe 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 specific ratio of funded debt to earnings before interest,
taxes, depreciation and amortization that we believe will not affect the
availability of borrowings under our current credit facility. The terms of the
current credit facility include a mechanism that allows us, with the approval of
the banks, to increase the capacity under the credit agreement up to $150.0
million.
We intend to continue our strategy of supplementing our internal growth
and expanding our service offerings through acquisitions. We continue to explore
acquisition opportunities and we currently have agreements in principle to
purchase other companies that may require the payment of up to an aggregate of
$4.5 million in cash.
We believe that cash on hand as of September 30, 1999, cash flow from
operations and available borrowings under our current credit facility will be
sufficient to fund our currently planned capital projects, potential
acquisitions and operations for the foreseeable future. If sufficient
acquisition opportunities of significant size develop that would extend our
borrowing beyond the capacity of our credit facility, we may be required to
obtain additional financing.
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.
We recognize the need to ensure that year 2000 software failures will
not adversely impact our operations. Our main information technology (IT)
operating and financial system became year 2000 compliant effective with a
normal software upgrade completed in December 1997. We have identified major
areas of potential business impact from other IT systems and non-IT devices and
initial conversions through normal upgrades and replacements are underway and
substantially completed. Non-IT devices include our machinery and equipment used
to deliver services. These are not materially reliant on embedded technology
potentially impacted by the year 2000 issue.
INFLATION
The effects of inflation on our operations were not significant during
the periods presented in the Consolidated Financial Statements.
Page 12
<PAGE> 13
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
We are exposed to certain market risks from transactions that are
entered into during the normal course of business. We have not entered into
derivative financial instruments for trading purposes. Our primary market risk
exposure relates to interest rate risk. We have a balance of $75.4 million on
our revolving credit facility at September 30, 1999, which is subject to a
variable rate of interest based on the prime or Eurodollar rate. Assuming
borrowings at September 30, 1999, a one hundred basis point change in interest
rates would impact net interest expense by approximately $754,000 per year.
PART II. -- OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS.
Various legal actions arising in the ordinary course of
business are pending against us. None of the litigation
pending against us, individually or collectively, is expected
to have a material adverse effect on us.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS.
(a) Not Applicable.
(b) Not Applicable.
(c) On July 8, 1999, in connection with, and as partial
consideration for, the acquisition of Technological
Environment Cleaning International Company ("TEC
International"), the Company issued 29,347 shares of
its common stock to TEC International. The issuance
of the shares of common stock pursuant to the TEC
International purchase agreement was pursuant to
Section 4(2) of the Securities Act of 1933, as
amended (the "Act").
On August 16, 1999, in connection with, and as
partial consideration for, the acquisition of
Gauthier Enterprises, Inc. ("Gauthier Enterprises"),
the Company issued 24,504 shares of its common stock
to the owner of Gauthier Enterprises. The issuance of
the shares of common stock pursuant to the Gauthier
Enterprises purchase agreement was pursuant to
Section 4(2) of the Act.
On August 16, 1999, in connection with, and as
partial consideration for, the acquisition of Tank
Management, Inc. ("Tank Management"), the Company
issued 5,442 shares of its common stock to Tank
Management. The issuance of the shares of common
stock pursuant to the Tank Management purchase
agreement was pursuant to Section 4(2) of the Act.
On August 16, 1999, in connection with, and as
partial consideration for, the acquisition of Support
Systems, Inc. ("Support Systems"), the Company issued
an aggregate of 23,595 shares of its common stock to
the owners of Support Systems. The issuance of the
shares of common stock pursuant to the Support
Systems purchase agreement was pursuant to Section
4(2) of the Act.
On August 16, 1999, in connection with, and as
partial consideration for, the acquisition of
Suresco, Inc. ("Suresco"), the Company issued 3,501
shares of its common stock to Suresco. The issuance
of the shares of common stock pursuant to the Suresco
purchase agreement was pursuant to Section 4(2) of
the Act.
(d) Not Applicable.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES.
Not Applicable.
Page 13
<PAGE> 14
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
November 4, 1999.
3(b) Amended and Restated Code of Regulations of
the Company effective November 4, 1999.
4 Credit Agreement, dated as of October 20,
1999, among the Company and its
subsidiaries, Bank One, NA, National City
Bank, LaSalle Bank, National Association,
SunTrust Bank, Central Florida, N.A., and
Banc One Capital Markets, Inc.
27 Financial Data Schedule.
(b) No reports on Form 8-K were filed during the period.
Page 14
<PAGE> 15
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 15, 1999 By: /s/ Daniel P. Buettin
----------------- ------------------------------
Daniel P. Buettin
Vice President and Chief Financial Officer
(on behalf of the Registrant and as Principal
Financial Officer)
Page 15
<PAGE> 16
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------- ----------------------
3(a) Amended and Restated Articles of Incorporation of the Company
effective November 4, 1999.
3(b) Amended and Restated Code of Regulations of the Company
effective November 4, 1999.
4 Credit Agreement, dated as of October 20, 1999, among the
Company and its subsidiaries, Bank One, NA, National City
Bank, LaSalle Bank, National Association, SunTrust Bank,
Central Florida, N.A., and Banc One Capital Markets, Inc.
27 Financial Data Schedule.
Page 16
<PAGE> 1
EXHIBIT 3(a)
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
MPW INDUSTRIAL SERVICES GROUP, INC.
ARTICLE I
---------
The name of the corporation is MPW Industrial Services Group, Inc. (the
"Corporation").
ARTICLE II
----------
The place in the State of Ohio where the Corporation's principal office
is located is the City of Hebron, Licking County.
ARTICLE III
-----------
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be formed under Sections 1701.01 to 1701.98,
inclusive, of the Ohio Revised Code.
ARTICLE IV
----------
A. AUTHORIZED CAPITAL STOCK. The Corporation is authorized to issue
35,000,000 shares of capital stock, consisting of 30,000,000 shares of common
stock, without par value ("Common Stock"), and 5,000,000 shares of preferred
stock, par value $0.01 per share ("Preferred Stock") consisting of 500,000
shares of Class A Preferred Stock, 2,250,000 shares of Class B Preferred Stock,
and 2,250,000 shares of Class C Preferred Stock.
B. PREFERRED STOCK. The Board of Directors shall have authority to
issue Preferred Stock from time to time in one or more classes or series. The
express terms of shares of a different series of any particular class shall be
identical except for such variations as may be permitted by law. Subject to such
express terms as may hereafter be adopted by the Board of Directors, the voting
rights of Class A Preferred Stock, Class B Preferred Stock and Class C Preferred
Stock shall be follows:
1. Each holder of Class A Preferred Stock shall be entitled to
100 votes per share and, except as otherwise required by law, shall
vote together with the Common Stock as a single class on all matters
properly submitted to a vote at a meeting of the shareholders.
2. Each holder of Class B Preferred Stock shall be entitled to
one vote per share and, except as otherwise required by law, shall vote
together with the
<PAGE> 2
Common Stock as a single class on all matters properly submitted to a
vote at a meeting of shareholders.
3. Holders of Class C Preferred Stock shall have no voting
rights.
ARTICLE V
---------
The Board of Directors shall be authorized hereby to exercise all
powers now or hereafter permitted by law providing rights to the Board of
Directors to adopt amendments to these Amended and Restated Articles of
Incorporation (i) to fix or change the express terms of any unissued or treasury
shares of any class, including, without limiting the generality of the
foregoing: division of such shares into series and the designation and
authorized number of shares of each series; voting rights of such shares (to the
extent now or hereafter permitted by law); dividend or distribution rate; dates
of payment of dividends or distributions and the dates from which they are
cumulative; liquidation price; redemption rights and price; sinking fund
requirements; conversion rights; and restrictions on the issuance of shares of
the same series or any other class or series; all as may be established by
resolution of the Board of Directors from time to time (collectively, a
"Preferred Stock Designation"), and (ii) to include within these Amended and
Restated Articles of Incorporation such additional provisions, or amendments to
any existing provisions, as may hereafter be authorized by law.
ARTICLE VI
----------
Except as may be provided in any Preferred Stock Designation, holders
of shares of capital stock of the Corporation shall not be entitled to
cumulative voting rights in the election of directors.
ARTICLE VII
-----------
Except as may be provided in any Preferred Stock Designation, no holder
of any shares of capital stock of the Corporation shall have any preemptive
right to acquire any shares of unissued capital stock of any class or series,
now or hereafter authorized, or any treasury shares or securities convertible
into such shares or carrying a right to subscribe to or acquire such shares of
capital stock.
ARTICLE VIII
------------
The Corporation may from time to time, pursuant to authorization by the
Board of Directors and without action by the shareholders, purchase or otherwise
acquire capital stock of the Corporation of any class or classes in such manner,
upon such terms and in such amounts as the Board of Directors shall determine;
subject, however, to such limitation or restriction, if any, as is contained in
any Preferred Stock Designation at the time of such purchase or acquisition.
-2-
<PAGE> 3
ARTICLE IX
----------
Except as may be provided in any Preferred Stock Designation, the Board
of Directors shall be fixed from time to time in the manner provided in the
Amended Code of Regulations of the Corporation. Except as may be otherwise
provided in any Preferred Stock Designation, directors may be elected by the
shareholders only at an annual meeting of shareholders. No decrease in the
number of directors constituting the Board of Directors may shorten the term of
any incumbent director. Election of directors of the Corporation need not be by
written ballot unless requested by the presiding officer or by the holders of a
majority of the voting power of the Corporation present in person or represented
by proxy at a meeting of shareholders at which directors are to be elected. For
purposes of these Amended and Restated Articles of Incorporation, "voting power
of the Corporation" means the aggregate voting power of (1) all the outstanding
shares of Common Stock of the Corporation and (2) all the outstanding shares of
any class or series of capital stock of the Corporation that has (i) rights to
distributions senior to those of the Common Stock including, without limitation,
any relative, participating, optional, or other special rights and privileges
of, and any qualifications, limitations or restrictions on, such shares and (ii)
voting rights entitling such shares to vote generally in the election of
directors.
ARTICLE X
---------
Notwithstanding anything to the contrary contained in these Amended and
Restated Articles of Incorporation, the affirmative vote of the holders of at
least 80% of the voting power of the Corporation, voting together as a single
class, shall be required to amend or repeal, or adopt any provision inconsistent
with, Article VI, Article VII, Article VIII, Article IX or this Article X;
provided, however, that this Article X shall not alter the voting entitlement of
shares that, by virtue of any Preferred Stock Designation, are expressly
entitled to vote on any amendment to these Amended and Restated Articles of
Incorporation.
ARTICLE XI
----------
Any and every statute of the State of Ohio hereafter enacted, whereby
(i) the rights, powers or privileges of corporations or of the shareholders of
corporations organized under the laws of the State of Ohio are increased or
diminished or in any way affected, or (ii) whereby effect is given to the action
taken by any number, less than all, of the shareholders of any such corporation,
or (iii) whereby the authority of the directors to adopt amendments to the
Articles of Incorporation without shareholder approval shall be expanded, shall
apply to the Corporation and shall be binding not only upon the Corporation but
upon every shareholder of the Corporation to the same extent as if such statute
had been in force at the date of filing these Amended and Restated Articles of
Incorporation in the office of the Secretary of State of Ohio.
ARTICLE XII
-----------
-3-
<PAGE> 4
These Amended and Restated Articles of Incorporation supersede the
Corporation's existing Articles of Incorporation and all prior amendments
thereto.
-4-
<PAGE> 1
EXHIBIT 3(b)
- --------------------------------------------------------------------------------
MPW INDUSTRIAL SERVICES GROUP, INC.
Amended and Restated
Code of Regulations
As Adopted and in
Effect on November 4, 1999
- --------------------------------------------------------------------------------
<PAGE> 2
MPW INDUSTRIAL SERVICES GROUP, INC.
Amended and Restated
Code of Regulations
TABLE OF CONTENTS
-----------------
Page
----
SHAREHOLDER MEETINGS...........................................................1
1. Time and Place of Meetings............................................1
2. Annual Meeting........................................................1
3. Special Meetings......................................................1
4. Notice of Meetings....................................................1
5. Quorum................................................................1
6. Voting................................................................2
7. Order of Business.....................................................2
DIRECTORS......................................................................4
8. Function..............................................................4
9. Number, Election and Terms of Directors...............................4
10. Newly Created Directorships and Vacancies.............................4
11. Removal...............................................................4
12. Nominations of Directors; Election....................................4
13. Resignation...........................................................5
14. Regular Meetings......................................................5
15. Special Meetings......................................................5
16. Quorum and Vote.......................................................5
17. Participation in Meetings by Communications Equipment.................6
18. Committees............................................................6
19. Compensation..........................................................6
20. Bylaws................................................................6
OFFICERS ......................................................................6
21. Generally.............................................................6
22. Authority and Duties of Officers......................................7
23. Compensation..........................................................7
24. Succession............................................................7
STOCK .........................................................................7
25. Transfer and Registration of Certificates.............................7
26. Substituted Certificates..............................................7
27. Voting Of Shares Held by the Corporation..............................7
28. Record Dates and Owners...............................................7
INDEMNIFICATION AND INSURANCE..................................................8
29. Indemnification.......................................................8
<PAGE> 3
30. Insurance.............................................................8
31. Agreements............................................................8
GENERAL........................................................................9
32. Fiscal Year...........................................................9
33. Seal..................................................................9
34. Amendments............................................................9
ii
<PAGE> 4
SHAREHOLDER MEETINGS
--------------------
1. TIME AND PLACE OF MEETINGS. All meetings of the shareholders for
the election of directors or for any other purpose will be held at such time and
place, within or without the State of Ohio, as may be designated by the Board of
Directors or, in the absence of a designation by the Board of Directors, the
Chairman of the Board of Directors, if any (the "Chairman"), the President, or
the Secretary, and stated in the notice of meeting. The Board of Directors may
postpone and reschedule any previously scheduled annual or special meeting of
the shareholders.
2. ANNUAL MEETING. An annual meeting of the shareholders will be
held at such date and time as may be designated from time to time by the Board
of Directors, at which meeting the shareholders will elect directors to succeed
those directors whose terms expire at such meeting and will transact such other
business as may be brought properly before the meeting in accordance with
Regulation 7 herein.
3. SPECIAL MEETINGS. (a) Special meetings of shareholders may be
called by (i) the Chairman (ii) the President, (iii) a majority of the Board of
Directors acting with or without a meeting, or (iv) any person or persons who
hold not less than 50% of all the shares outstanding and entitled to be voted at
such meeting. Holders of shares that are entitled to call a special meeting of
shareholders by virtue of any Preferred Stock Designation may call such meetings
in the manner and for the purposes provided in the applicable terms of such
Preferred Stock Designation. For purposes of this Amended and Restated Code of
Regulations, "Preferred Stock Designation" shall have the meaning specified in
the Amended and Restated Articles of Incorporation.
(b) Upon written request by any person or persons entitled to call a
meeting of shareholders delivered in person or by registered mail to the
Chairman, the President or the Secretary, such officer shall forthwith cause
notice of the meeting to be given to the shareholders entitled to notice of such
meeting in accordance with Regulation 4 herein. If such notice shall not be
given within 60 days after the delivery or mailing of such request, the person
or persons requesting the meeting may fix the time of the meeting and give, or
cause to be given, notice in the manner provided in Regulation 4 herein.
4. NOTICE OF MEETINGS. Written notice of every meeting of the
shareholders called in accordance with this Amended and Restated Code of
Regulations, stating the time, place and purposes for which the meeting is
called, will be given by or at the direction of the President, a Vice President,
the Secretary or an Assistant Secretary (or in case of their failure to give any
required notice, the other persons entitled to give notice under Regulation 3
herein). Such notice will be given not less than seven nor more than 60 calendar
days before the date of the meeting to each shareholder of record entitled to
notice of such meeting. If such notice is mailed, it shall be addressed to the
shareholders at their respective addresses as they appear on the records of the
Corporation, and notice shall be deemed to have been given on the day so mailed.
Notice of adjournment of a meeting need not be given if the time and place to
which it is adjourned are fixed and announced at such meeting.
5. QUORUM. To constitute a quorum at any meeting of shareholders,
there shall be present in person or by proxy shareholders of record entitled to
exercise not less than a majority of
<PAGE> 5
the voting power of the Corporation in respect of any one of the purposes for
which the meeting is called, unless a greater or lesser number is expressly
provided for in any applicable Preferred Stock Designation. Except as may be
otherwise provided in any Preferred Stock Designation, the holders of a majority
of the voting power of the Corporation represented in person or by proxy at a
meeting of shareholders, whether or not a quorum be present, may adjourn the
meeting from time to time. For purposes of this Amended and Restated Code of
Regulations, "voting power of the Corporation" shall have the meaning specified
in the Amended and Restated Articles of Incorporation.
6. VOTING. Except as otherwise expressly required by law, the
Amended and Restated Articles of Incorporation or this Amended and Restated Code
of Regulations, at any meeting of shareholders at which a quorum is present, a
majority of the votes cast, whether in person or by proxy, on any matter
properly brought before such meeting in accordance with Regulation 7 herein will
be the act of the shareholders. An abstention shall not represent a vote cast.
Proxies must be in a form permitted by Ohio law and filed with the Secretary. A
shareholder may revoke any proxy that is not irrevocable by attending the
meeting and voting in person or by filing with the Secretary written notice of
revocation or a later appointment. The vote upon any question brought before a
meeting of the shareholders may be by voice vote, unless otherwise required by
law, the Amended and Restated Articles of Incorporation or this Amended and
Restated Code of Regulations or unless the presiding officer otherwise
determines.
7. ORDER OF BUSINESS. (a) The Chairman, or such other officer of
the Corporation designated by a majority of the total number of directors that
the Corporation would have if there were no vacancies on the Board of Directors
(such number being referred to as the "Whole Board"), will call meetings of
shareholders to order and will act as presiding officer thereof. Unless
otherwise determined by the Board of Directors prior to the meeting, the
presiding officer of the meeting of shareholders will also determine the order
of business and have the authority in his or her sole discretion to regulate the
conduct of any such meeting including, without limitation, by (i) imposing
restrictions on the persons (other than shareholders of the Corporation or their
duly appointed proxies) who may attend any such shareholders' meeting, (ii)
ascertaining whether any shareholder or his proxy may be excluded from any
meeting of shareholders based upon any determination by the presiding officer,
in his sole discretion, that any such person has unduly disrupted or is likely
to disrupt the proceedings of the meeting, (iii) determining the circumstances
in which any person may make a statement or ask questions at any meeting of
shareholders and (iv) establishing such other procedures as the presiding
officer, in his sole discretion, may deem appropriate for the orderly conduct of
business.
(b) At an annual meeting of the shareholders, only such business will
be conducted or considered as is properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified in the
notice of meeting (or any supplement thereto) given by or at the direction of
the President, a Vice President, the Secretary or an Assistant Secretary in
accordance with Regulation 4 herein, (ii) otherwise properly brought before the
meeting by the presiding officer or by or at the direction of a majority of the
Whole Board or (iii) otherwise properly requested to be brought before the
meeting by a shareholder of the Corporation in accordance with Regulation 7(c)
herein.
2
<PAGE> 6
(c) For business to be properly requested by a shareholder to be
brought before an annual meeting, the shareholder must (i) be a shareholder of
the Corporation of record at the time of the giving of the notice for such
annual meeting provided for in this Amended and Restated Code of Regulations,
(ii) be entitled to vote at such meeting and (iii) have given timely notice
thereof in writing to the Secretary. To be timely, a shareholder's notice must
be delivered to or mailed and received at the principal executive offices of the
Corporation not less than 60 nor more than 90 calendar days prior to the annual
meeting; provided, however, that in the event public announcement of the date of
the annual meeting is not made at least 105 calendar days prior to the date of
the annual meeting, notice by the shareholder to be timely must be so received
not later than the close of business on the tenth calendar day following the day
on which public announcement is first made of the date of the annual meeting. A
shareholder's notice to the Secretary must set forth as to each matter the
shareholder proposes to bring before the annual meeting (A) a description in
reasonable detail of the business desired to be brought before the annual
meeting and the reasons for conducting such business at the annual meeting, (B)
the name and address, as they appear on the Corporation's books, of the
shareholder proposing such business and of the beneficial owner, if any, on
whose behalf the proposal is made, (C) the class and number of shares of the
Corporation that are owned beneficially and of record by the shareholder
proposing such business and by the beneficial owner, if any, on whose behalf the
proposal is made and (D) any material interest of such shareholder proposing
such business and the beneficial owner, if any, on whose behalf the proposal is
made in such business. Notwithstanding the foregoing provisions of this Amended
and Restated Code of Regulations, a shareholder must also comply with all
applicable requirements of the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder with respect to the matters set forth in
this Regulation 7(c) herein. For purposes of this Regulation 7(c) and Regulation
12 herein, "public announcement" means disclosure in a press release reported by
the Dow Jones News Service, Associated Press, or comparable national news
service or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Sections 13, 14, or 15(d) of the Securities
Exchange Act of 1934, as amended, or publicly filed by the Corporation with any
national securities exchange or quotation service through which the
Corporation's stock is listed or traded, or furnished by the Corporation to its
shareholders. Nothing in this Regulation 7(c) will be deemed to affect any
rights of shareholders to request inclusion of proposals in the Corporation's
proxy statement pursuant to Rule 14a-8 under the Securities Exchange Act of
1934, as amended.
(d) At a special meeting of shareholders, only such business may be
conducted or considered as is properly brought before the meeting. To be
properly brought before a special meeting, business must be (i) specified in the
notice of the meeting (or any supplement thereto) given by or at the direction
of the President, a Vice President, the Secretary or an Assistant Secretary (or
in case of their failure to give any required notice, the other persons entitled
to give notice) in accordance with Regulation 4 herein or (ii) otherwise brought
before the meeting by the presiding officer or by or at the direction of a
majority of the Whole Board.
(e) The determination of whether any business sought to be brought
before any annual or special meeting of the shareholders is properly brought
before such meeting in accordance with this Regulation 7 will be made by the
presiding officer of such meeting. If the presiding officer determines that any
business is not properly brought before such meeting, he or she will so declare
to the meeting and any such business will not be conducted or considered.
3
<PAGE> 7
DIRECTORS
---------
8. FUNCTION. Except where the law, the Amended and Restated
Articles of Incorporation or this Amended and Restated Code of Regulations
requires action to be authorized or taken by the shareholders, all of the
authority of the Corporation shall be exercised by or under the direction of the
Board of Directors.
9. NUMBER, ELECTION AND TERMS OF DIRECTORS. Except as may be
provided in any Preferred Stock Designation, the size of the Board of Directors
shall be established from time to time only (i) by a vote of a majority of the
Whole Board or (ii) by the affirmative vote of the holders of at least 80% of
the voting power of the Corporation, voting together as a single class.
10. NEWLY CREATED DIRECTORSHIPS AND VACANCIES. Except as may be
otherwise provided in any Preferred Stock Designation, any vacancy (including
newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal, or other cause) may be filled only (i)
by the affirmative vote of a majority of the remaining directors then in office,
even though less than a quorum of the Board of Directors, or by a sole remaining
director or (ii) by the affirmative vote of the shareholders after a vote to
increase the number of directors at a meeting called for that purpose in
accordance with this Amended and Restated Code of Regulations. Any director
elected in accordance with the preceding sentence will hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor has been elected.
11. REMOVAL. Except as may be otherwise provided in any Preferred
Stock Designation, directors may not be removed from the Board of Directors by
the shareholders or otherwise.
12. NOMINATIONS OF DIRECTORS; ELECTION. (a) Except as may be
otherwise provided in any Preferred Stock Designation, only persons who are
nominated in accordance with this Regulation 12 will be eligible for election at
a meeting of shareholders to be members of the Board of Directors.
(b) Nominations of persons for election as directors of the
Corporation may be made only at an annual meeting of shareholders (i) by or at
the direction of the Board of Directors or a committee thereof or (ii) by any
shareholder who is a shareholder of record at the time of giving of notice
provided for in this Regulation 12, who is entitled to vote for the election of
directors at such meeting, and who complies with the procedures set forth in
this Regulation 12. All nominations by shareholders must be made pursuant to
timely notice in proper written form to the Secretary.
(c) To be timely, a shareholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 60 nor more than 90 calendar days prior to the annual meeting of
shareholders; provided, however, that in the event that public announcement of
the date of the annual meeting is not made at least 105 calendar days prior to
the date of the annual meeting, notice by the shareholder to be timely must be
so received not later than the close of business on the tenth calendar day
following the day on which public announcement is first made of the date of the
annual meeting. To be in proper written form, such shareholder's notice must set
forth or include: (i) the name and address, as they appear on the Corporation's
books, of
4
<PAGE> 8
the shareholder giving the notice and of the beneficial owner, if any, on whose
behalf the nomination is made; (ii) a representation that the shareholder giving
the notice is a holder of record of stock of the Corporation entitled to vote at
such annual meeting and intends to appear in person or by proxy at the annual
meeting to nominate the person or persons specified in the notice; (iii) the
class and number of shares of stock of the Corporation owned beneficially and of
record by the shareholder giving the notice and by the beneficial owner, if any,
on whose behalf the nomination is made; (iv) a description of all arrangements
or understandings between or among any of (A) the shareholder giving the notice,
(B) the beneficial owner on whose behalf the notice is given, (C) each nominee
and (D) any other person or persons (naming such person or persons) pursuant to
which the nomination or nominations are to be made by the shareholder giving the
notice; (v) such other information regarding each nominee proposed by the
shareholder giving the notice as would be required to be included in a proxy
statement filed pursuant to the proxy rules of the Securities and Exchange
Commission had the nominee been nominated, or proposed to be nominated, by the
Board of Directors; and (vi) the signed consent of each nominee to serve as a
director of the Corporation if so elected. The presiding officer of any annual
meeting may, if the facts warrant, determine that a nomination was not made in
accordance with this Regulation 12, and if he or she should so determine, he or
she will so declare to the meeting, and the defective nomination will be
disregarded. Notwithstanding the foregoing provisions of this Regulation 12, a
shareholder must also comply with all applicable requirements of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder with
respect to the matters set forth in this Regulation 12.
13. RESIGNATION. Any director may resign at any time by giving
written notice of his or her resignation to the Chairman or the Secretary. Any
resignation will be effective upon actual receipt by any such person or, if
later, as of the date and time and upon occurrence of the conditions specified
in such written notice.
14. REGULAR MEETINGS. Regular meetings of the Board of Directors may
be held immediately after the annual meeting of the shareholders and at such
other time and place either within or without the State of Ohio as may from time
to time be determined by a majority of the Whole Board. Notice of regular
meetings of the Board of Directors need not be given.
15. SPECIAL MEETINGS. Special meetings of the Board of Directors may
be called by the Chairman or the President on one day's notice to each director
by whom such notice is not waived, given either personally or by mail,
electronic mail, telephone (including voice mail), telegram, telex, facsimile,
or similar medium of communication, and will be called by the Chairman or the
President, in like manner and on like notice, on the written request of not less
than one-third of the Whole Board. Special meetings of the Board of Directors
may be held at such time and place either within or without the State of Ohio as
is determined by a majority of the Whole Board or specified in the notice of any
such meeting.
16. QUORUM AND VOTE. At all meetings of the Board of Directors, a
majority of the total number of directors then in office will constitute a
quorum for the transaction of business. Except for the designation of committees
as hereinafter provided and except for actions required by this Amended and
Restated Code of Regulations to be taken by a majority of the Whole Board, the
act of a majority of the directors present at any meeting at which a quorum is
present will be the act of the Board of Directors. If a quorum is not present at
any meeting of the Board of Directors, the
5
<PAGE> 9
directors present thereat may adjourn the meeting from time to time to another
time or place, without notice other than announcement at the meeting, until a
quorum is present.
17. PARTICIPATION IN MEETINGS BY COMMUNICATIONS EQUIPMENT. Meetings
of the Board of Directors or of any committee of the Board of Directors may be
held through any means of communications equipment if all persons participating
can hear each other, and such participation will constitute presence in person
at such meeting.
18. COMMITTEES. The Board of Directors may from time to time create
an executive committee or any other committee or committees of directors to act
in the intervals between meetings of the Board of Directors and may delegate to
such committee or committees any of its authority other than that of filling
vacancies among the Board of Directors or in any committee of the Board of
Directors. Committees may consist of one or more directors. The Board of
Directors may appoint one or more directors as alternate members of any such
committee to take the place of absent committee members at meetings of such
committee. Unless otherwise ordered by the Board of Directors, a majority of the
members of any committee appointed by the Board of Directors pursuant to this
Regulation 18 shall constitute a quorum at any meeting thereof, and the act of a
majority of the members present at a meeting at which a quorum is present shall
be the act of such committee. Action may be taken by any such committee without
a meeting by a writing or writings signed by all of its members. Any such
committee shall prescribe its own rules for calling and holding meetings and its
own procedures, subject to any rules prescribed by the Board of Directors, and
will keep a written record of all action taken by it.
19. COMPENSATION. The Board of Directors may establish the
compensation and expense reimbursement policies for directors in exchange for
membership on the Board of Directors and on committees of the Board of
Directors, attendance at meetings of the Board of Directors or committees of the
Board of Directors, and for other services by directors to the Corporation or
any of its subsidiaries.
20. BYLAWS. The Board of Directors may adopt Bylaws for the conduct
of its meetings and those of any committees of the Board of Directors that are
not inconsistent with the Amended and Restated Articles of Incorporation or this
Amended and Restated Code of Regulations.
OFFICERS
--------
21. GENERALLY. The Corporation may have a Chairman, who shall be
elected by the directors from among their number, and shall have a President, a
Secretary and a Treasurer. The Corporation may also have one or more Vice
Presidents and such other officers and assistant officers as the Board of
Directors may deem appropriate. If the Board of Directors so desires, it may
elect a Chief Executive Officer to manage the affairs of the Corporation,
subject to the direction and control of the Board of Directors. All of the
officers shall be elected by the Board of Directors. Notwithstanding the
foregoing, by specific action, the Board of Directors may authorize the
Chairman, the Chief Executive Officer or the President to appoint any person to
any office other than Chairman, President, Secretary or Treasurer. Any number of
offices may be held by the same person, and no two offices must be held by the
same person. Any of the offices may be left vacant
6
<PAGE> 10
from time to time as the Board of Directors may determine. In case of the
absence or disability of any officer of the Corporation or for any other reason
deemed sufficient by a majority of the Board of Directors, the Board of
Directors may delegate the absent or disabled officer's powers or duties to any
other officer or to any director.
22. AUTHORITY AND DUTIES OF OFFICERS. The officers of the Corporation
shall have such authority and shall perform such duties as are customarily
incident to their respective offices, or as may be specified from time to time
by the Board of Directors regardless of whether such authority and duties are
customarily incident to such office.
23. COMPENSATION. The compensation of all officers and agents of the
Corporation who are also members of the Board of Directors of the Corporation
will be fixed by the Board of Directors or by a committee of the Board of
Directors. The Board of Directors may fix, or delegate the power to fix, the
compensation of the other officers and agents of the Corporation to the Chief
Executive Officer or any other officer of the Corporation.
24. SUCCESSION. The officers of the Corporation will hold office
until their successors are elected. Any officer may be removed at any time by
the affirmative vote of a majority of the Whole Board. Any vacancy occurring in
any office of the Corporation may be filled by the Board of Directors or by the
Chairman or President as provided in Regulation 21.
STOCK
-----
25. TRANSFER AND REGISTRATION OF CERTIFICATES. The Board of Directors
shall have authority to make such rules and regulations as they deem expedient
concerning the issuance, transfer and registration of certificates for shares
and the shares represented thereby and may appoint transfer agents and
registrars thereof.
26. SUBSTITUTED CERTIFICATES. Any person claiming a certificate for
shares to have been lost, stolen or destroyed shall make an affidavit or
affirmation of that fact, shall give the Corporation and its registrar or
registrars and its transfer agent or agents a bond of indemnity satisfactory to
the Board of Directors or a committee thereof or to the Chief Executive Officer,
the President or a Vice President and the Secretary or the Treasurer, whereupon
a new certificate may be executed and delivered of the same tenor and for the
same number of shares as the one alleged to have been lost, stolen or destroyed.
27. VOTING OF SHARES HELD BY THE CORPORATION. Unless otherwise
ordered by the Board of Directors, the Chief Executive Officer, the President in
person or by proxy or proxies appointed by either of them shall have full power
and authority on behalf of the Corporation to vote, act and consent with respect
to any shares issued by other corporations which the Corporation may own.
28. RECORD DATES AND OWNERS. (a) In order that the Corporation may
determine the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, the Board of Directors may fix a record
date, which will not be less than seven nor more than 60 calendar days before
the date of such meeting. If no record date is fixed by the Board of
7
<PAGE> 11
Directors, the record date for determining shareholders entitled to notice of or
to vote at a meeting of shareholders will be the date next preceding the day on
which notice is given, or, if notice is waived, at the date next preceding the
day on which the meeting is held.
(b) The Corporation will be entitled to treat the person in whose
name shares are registered on the books of the Corporation as the absolute owner
thereof and will not be bound to recognize any equitable or other claim to, or
interest in, such share on the part of any other person, whether or not the
Corporation has knowledge or notice thereof, except as expressly provided by
applicable law.
INDEMNIFICATION AND INSURANCE
-----------------------------
29. INDEMNIFICATION. The Corporation shall indemnify, to the full
extent then permitted by law, any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that he or she is or was a member of the Board of Directors or an
officer of the Corporation, or is or was serving at the request of the
Corporation as a director, trustee, officer, employee or agent of another
corporation, partnership, limited liability company, joint venture, trust or
other enterprise. The Corporation shall pay, to the full extent then required by
law, expenses, including attorney's fees, incurred by a member of the Board of
Directors in defending any such action, suit or proceeding as they are incurred,
in advance of the final disposition thereof, and may pay, in the same manner and
to the full extent then permitted by law, such expenses incurred by any other
person. The indemnification and payment of expenses provided hereby shall not be
exclusive of, and shall be in addition to, any other rights granted to those
seeking indemnification under any law, the Amended and Restated Articles of
Incorporation, any agreement, vote of shareholders or disinterested members of
the Board of Directors, or otherwise, both as to action in official capacities
and as to action in another capacity while he or she is a member of the Board of
Directors or an officer of the Corporation, and shall continue as to a person
who has ceased to be a member of the Board of Directors or an officer of the
Corporation or as to a person who has served at the request of the Corporation
as a director, trustee, officer, employee or agent of another corporation, and
shall inure to the benefit of the heirs, executors and administrators of such
persons.
30. INSURANCE. The Corporation may, to the full extent then permitted
by law and authorized by the Board of Directors, purchase and maintain insurance
or furnish similar protection, including but not limited to trust funds, letters
of credit or self-insurance, on behalf of or for any persons described in
Regulation 29 herein against any liability asserted against and incurred by any
such person in any such capacity, or arising out of his status as such, whether
or not the Corporation would have the power to indemnify such person against
such liability. Insurance may be purchased from or maintained with a person in
which the Corporation has a financial interest.
31. AGREEMENTS. The Corporation, upon approval by the Board of
Directors, may enter into agreements with any persons whom the Corporation may
indemnify under this Amended and Restated Code of Regulations or under law and
undertake thereby to indemnify such persons and to pay the expenses incurred by
them in defending any action, suit or proceeding against them, whether
8
<PAGE> 12
or not the Corporation would have the power under law or this Amended and
Restated Code of Regulations to indemnify any such person.
GENERAL
-------
32. FISCAL YEAR. The fiscal year of the Corporation will end on the
last day of June (and whether before or after such date) in each calendar year
or such other date as may be fixed from time to time by the Board of Directors.
33. SEAL. The Board of Directors may adopt a corporate seal and use
the same by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise.
34. AMENDMENTS. Except as otherwise provided by law, the Amended and
Restated Articles of Incorporation or herein, this Amended and Restated Code of
Regulations or any Regulations may be amended in any respect or repealed at any
time at any meeting of shareholders, provided that any amendment or supplement
proposed to be acted upon at any such meeting has been described or referred to
in the notice of such meeting. Except as otherwise provided by law, the Amended
and Restated Articles of Incorporation or herein, the shareholders shall not
take any action without a meeting to alter or amend this Amended and Restated
Code of Regulations. Notwithstanding the first sentence of this Regulation 34 or
anything to the contrary contained in the Amended and Restated Articles of
Incorporation or this Amended and Restated Code of Regulations, Regulations 1,
3(a), 7, 10, 11, 12 and 34 may not be amended or repealed by the shareholders,
and no provision inconsistent therewith may be adopted by the shareholders,
without the affirmative vote of the holders of at least 80% of the voting power
of the Corporation, voting together as a single class. Notwithstanding the
foregoing provisions of this Regulation 34, no amendment to Regulations 29, 30
or 31 will be effective to eliminate or diminish the rights of persons specified
in those Regulations existing at the time immediately preceding such amendment.
9
<PAGE> 1
EXHIBIT 4
CREDIT AGREEMENT
among
MPW INDUSTRIAL SERVICES GROUP, INC.
and its Subsidiaries,
THE LENDERS
From Time to Time Party Hereto,
BANK ONE, NA,
as Administrative Agent,
and
NATIONAL CITY BANK,
as Documentation Agent
BANC ONE CAPITAL MARKETS, INC.
Lead Arranger
NATIONAL CITY BANK
Co-Arranger
Dated as of October 20, 1999
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS.......................................................1
ARTICLE II. THE CREDITS......................................................16
2.1. Commitment.......................................................16
2.2. Required Payments; Termination...................................16
2.3. Ratable Loans....................................................16
2.4. Types of Advances................................................16
2.5. Commitment Fee; Reductions in Aggregate Commitment...............16
2.6. Minimum Amount of Each Advance...................................17
2.7. Optional Principal Payments......................................17
2.8. Method of Selecting Types and Interest Periods for
New Advances.....................................................17
2.9. Conversion and Continuation of Outstanding Advances..............18
2.10. Changes in Interest Rate, Etc....................................18
2.11. Rates Applicable After Default...................................19
2.12. Method of Payment................................................19
2.13. Noteless Agreement; Evidence of Indebtedness.....................21
2.14. Telephonic Notices...............................................21
2.15. Interest Payment Dates; Interest and Fee Basis...................21
2.16. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions........................................22
2.17. Lending Installations............................................22
2.18. Non-receipt of Funds by the Agent................................22
2.19. Facility LCs.....................................................23
2.19.1. Issuance................................................23
2.19.2. Participations..........................................23
2.19.3. Notice..................................................23
2.19.4. LC Fees.................................................24
2.19.5. Administration; Reimbursement by Lenders................24
2.19.6. Reimbursement by Borrower...............................25
2.19.7. Obligations Absolute....................................25
2.19.8. Actions of LC Issuer....................................26
2.19.9. Indemnification.........................................26
2.19.10. Lenders' Indemnification................................27
2.19.11. Facility LC Collateral Account..........................27
2.19.12. Rights as a Lender......................................27
2.20. Extension of Facility Termination Date...........................28
2.21. Replacement of Lender............................................28
2.22. Optional Increase In the Aggregate Commitment....................29
2.23. Collateral.......................................................30
2.24 Additional Borrowers.............................................30
2.25. Waiver of Subrogation............................................31
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<PAGE> 3
ARTICLE III. CHANGE IN CIRCUSTANCES...........................................31
3.1. Yield Protection.................................................31
3.2. Changes in Capital Adequacy Regulations..........................32
3.3. Availability of Types of Advances................................33
3.4. Funding Indemnification..........................................33
3.5. Taxes............................................................33
3.6. Lender Statements; Survival of Indemnity.........................35
ARTICLE IV. CONDITIONS PRECEDENT.............................................36
4.1. Initial Advance..................................................36
4.2. Each Advance.....................................................37
ARTICLE V. REPRESENTATIONS AND WARRANTIES...................................38
5.1. Existence and Standing...........................................38
5.2. Authorization and Validity.......................................38
5.3. No Conflict; Government Consent..................................38
5.4. Financial Statements.............................................39
5.5. Material Adverse Change..........................................39
5.6. Taxes............................................................39
5.7. Litigation and Contingent Obligations............................39
5.8. Subsidiaries.....................................................40
5.9. ERISA............................................................40
5.10. Accuracy of Information..........................................40
5.11. Regulation U.....................................................40
5.12. Material Agreements..............................................40
5.13. Compliance With Laws.............................................40
5.14. Ownership of Properties..........................................40
5.15. Plan Assets; Prohibited Transactions.............................41
5.16. Environmental Matters............................................41
5.17. Investment Company Act...........................................41
5.18. Public Utility Holding Company Act...............................41
5.19. Year 2000........................................................41
5.20. Insurance........................................................42
5.21. Solvency.........................................................42
ARTICLE VI. COVENANTS.. .....................................................43
6.1. Financial Reporting..............................................43
6.2. Use of Proceeds..................................................44
6.3. Notice of Default................................................44
6.4. Conduct of Business..............................................44
6.5. Taxes............................................................44
6.6. Insurance........................................................45
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<PAGE> 4
6.7. Compliance With Laws.............................................45
6.8. Maintenance of Properties........................................45
6.9. Inspection.......................................................45
6.10. Dividends........................................................45
6.11 Indebtedness.....................................................45
6.12. Merger...........................................................46
6.13. Sale of Assets...................................................46
6.14. Investments and Acquisitions.....................................46
6.15. Liens............................................................47
6.16. Capital Expenditures.............................................47
6.17. Rentals..........................................................48
6.18. Year 2000........................................................48
6.19. Affiliates.......................................................48
6.20. Subordinated Indebtedness........................................48
6.21. Required Rate Management Transactions............................48
6.22. Sale of Accounts.................................................48
6.23. Sale and Leaseback Transactions and other Off-
Balance Sheet Liabilities........................................48
6.24. Letters of Credit................................................49
6.25. Financial Covenants..............................................50
6.25.1. Interest Coverage Ratio..............................50
6.25.2. Leverage Ratio.......................................50
6.25.3. Minimum Net Worth....................................50
ARTICLE VII. DEFAULTS.........................................................50
ARTICLE VIII.ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................54
8.1. Acceleration; Facility LC Collateral Account.....................54
8.2. Amendments.......................................................55
8.3. Preservation of Rights...........................................56
ARTICLE IX. GENERAL PROVISIONS...............................................56
9.1. Survival of Representations......................................56
9.2. Governmental Regulation..........................................56
9.3. Headings.........................................................56
9.4. Entire Agreement.................................................56
9.5. Several Obligations; Benefits of This Agreement..................56
9.6. Expenses; Indemnification........................................57
9.7. Numbers of Documents.............................................58
9.8. Accounting.......................................................58
9.9. Severability of Provisions.......................................58
9.10. Nonliability of Lenders..........................................58
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<PAGE> 5
9.11. Confidentiality..................................................59
9.12. Nonreliance......................................................59
9.13. Disclosure.......................................................59
ARTICLE X. THE ADMINISTRATIVE AGENT..........................................59
10.1. Appointment; Nature of Relationship...............................59
10.2. Powers............................................................60
10.3. General Immunity..................................................60
10.4. No Responsibility for Loans, Recitals, Etc........................60
10.5. Action On Instructions of Lenders.................................60
10.6. Employment of Agents and Counsel..................................61
10.7. Reliance On Documents; Counsel....................................61
10.8. Administrative Agent's Reimbursement and
Indemnification...................................................61
10.9. Notice of Default.................................................62
10.10. Rights as a Lender................................................62
10.11. Lender Credit Decision............................................62
10.12. Successor Administrative Agent....................................62
10.13. Administrative Agent's Fee........................................63
10.14. Delegation to Affiliates..........................................63
10.15. Execution of Collateral Documents.................................64
10.16 Collateral Releases...............................................64
ARTICLE XI. SETOFF; RATABLE PAYMENTS..........................................64
11.1. Setoff............................................................64
11.2. Ratable Payments..................................................64
ARTICLE XII. BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS................65
12.1. Successors and Assigns............................................65
12.2. Participations....................................................65
12.2.1. Permitted Participants; Effect........................65
12.2.2. Voting Rights.........................................66
12.2.3. Benefit of Setoff.....................................66
12.3. Assignments...................................................66
12.3.1. Permitted Assignments.................................66
12.3.2. Effect; Effective Date................................67
12.4. Dissemination of Information......................................67
12.5. Tax Treatment.....................................................68
ARTICLE XIII. NOTICES.........................................................68
13.1. Notices...........................................................68
13.2. Change of Address.................................................68
iv
<PAGE> 6
ARTICLE XIV. COUNTERPARTS.....................................................68
ARTICLE XV. CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL........................................................69
15.1. CHOICE OF LAW.....................................................69
15.2. CONSENT TO JURISDICTION...........................................69
15.3. WAIVER OF JURY TRIAL..............................................69
SCHEDULE OF SUBSIDIARY BORROWERS..............................................75
PRICING SCHEDULE..............................................................76
EXHIBIT A. FORM OF OPINION..................................................78
EXHIBIT B. COMPLIANCE CERTIFICATE...........................................81
EXHIBIT C. ASSIGNMENT AGREEMENT.............................................86
EXHIBIT D. LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION...................94
EXHIBIT E. NOTE.............................................................96
EXHIBIT F. SUPPLEMENT......................................................100
SCHEDULE 1. SUBSIDIARIES AND OTHER INVESTMENTS..............................105
SCHEDULE 2. INDEBTEDNESS AND LIENS..........................................108
v
<PAGE> 7
CREDIT AGREEMENT
This Credit Agreement, dated as of October 20, 1999 is among MPW
Industrial Services Group, Inc., Aquatech Environmental, Inc., each of the other
Subsidiaries of MPW Group listed on the Schedule of Subsidiary Borrowers, the
Lenders, Bank One, NA, as LC Issuer and as Administrative Agent, and National
City Bank, as Documentation Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which any
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or limited liability
company, or division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one transaction or as the
most recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary voting
power for the election of directors (other than securities having such power
only by reason of the happening of a contingency) or a majority (by percentage
or voting power) of the outstanding ownership interests of a partnership or
limited liability company.
"Administrative Agent" means Bank One, NA in its capacity as
contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the
same Borrowing Date, or (ii) converted or continued by the Lenders on the same
date of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 10% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as reduced or increased from time to time pursuant to the terms
hereof.
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<PAGE> 8
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this credit agreement, as it may be amended,
supplemented or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time, applied in a manner consistent with
that used in preparing the financial statements referred to in Section 5.4.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Corporate Base Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Commitment Fees are accruing on the unused portion of the Aggregate
Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assuming Lender" is defined in Section 2.22(i).
"Authorized Officer" means any of the chief executive officer, chief
financial officer or treasurer of any Borrower or Guarantor, acting singly.
" Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Bank One" means Bank One, NA in its individual capacity, and its
successors.
"Borrowers" means MPW Group, Aquatech Environmental, Inc., MPW Group's
other Subsidiaries listed on the Schedule of Subsidiaries and those Subsidiaries
which after the date of this Agreement become a party to this Agreement in
accordance with the terms hereof, and their respective successors and assigns.
"Borrowing Date" means a date on which an Advance is made hereunder.
2
<PAGE> 9
"Borrowing Notice" is defined in Section 2.8.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in Columbus and New York for the conduct of
substantially all of their commercial lending activities, interbank wire
transfers can be made on the Fedwire system and dealings in United States
dollars are carried on in the London interbank market and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Columbus for the conduct of substantially all of their commercial
lending activities and interbank wire transfers can be made on the Fedwire
system.
"Capital Expenditures" means, without duplication, any expenditures for
any purchase or other acquisition of any asset which would be classified as a
fixed or capital asset on a consolidated balance sheet of the Borrowers and
their Subsidiaries prepared in accordance with Agreement Accounting Principles
excluding expenditures of insurance proceeds to rebuild or replace any asset
after a casualty.
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, and (iv) certificates of deposit
issued by and time deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000; provided in each case that
the same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest.
"Change" is defined in Section 3.2.
"Change in Control" means 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
3
<PAGE> 10
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 Securities Exchange Act of 1934, as amended, disclosing
that any person (as the term "person" is used in Section 13(d)(3) or
Section 14(d)(2) of such Securities 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 said Securities
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 such Securities
Exchange Act disclosing in response to Form 8-K or Schedule 14A (or any
successor schedule, form or report or item therein) that a change in
control of MPW Group has occurred or will occur in the future pursuant
to any then existing contract or transaction; or
(e) if, during any period of two consecutive years,
individuals who at the beginning of any such period constitute the
directors of MPW Group cease for any reason to constitute at least a
majority thereof; provided, however, that for purposes of this clause
(e) each director who is first elected, or first nominated for election
by MPW Group's stockholders, by a vote of at least two-thirds of the
directors of MPW Group (or a committee thereof) then still in office
who were directors of MPW Group at the beginning of any such period
will be deemed to have been a director of MPW Group at the beginning of
such period.
Notwithstanding the foregoing provisions of subparts (c) or (d) above, unless
otherwise determined in a specific case by majority vote of the board of
directors of MPW Group, a "Change in Control" shall not be deemed to have
occurred for purposes of such subparts solely because (i) MPW Group, (ii) a
Subsidiary, or (iii) any MPW Group sponsored employee stock ownership plan or
any other employee benefit plan of MPW Group or any Subsidiary either files or
becomes obligated to file a report or a proxy statement under or in response to
Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor
schedule, form or report or item
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<PAGE> 11
therein) under such Securities 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.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral Documents" means, collectively, (i) the Security Agreement,
(ii) the UCC Financing Statements, and (iii) and any and all other security
agreements, mortgages, deeds of trusts and other security documents now or
hereafter securing the Obligations.
"Collateral Shortfall Amount" is defined in Section 8.1.
"Commitment" means, for each Lender, the obligation of such Lender to
make Loans to, and participate in Facility LCs issued upon the application of,
the Borrowers in an aggregate amount not exceeding the amount set forth opposite
its signature below or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to Section 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
"Commitment Increase" is defined in Section 2.22(i).
"Consolidated Capital Expenditures" means, with reference to any
period, the Capital Expenditures of the Borrowers and their Subsidiaries
calculated on a consolidated basis for such period.
"Consolidated EBIT" means Consolidated Net Income plus, to the extent
deducted from revenues in determining Consolidated Net Income, (i) Consolidated
Interest Expense and (ii) expense for taxes paid or accrued, all calculated for
the Borrowers and their Subsidiaries on a consolidated basis.
"Consolidated EBITDA" means Consolidated EBIT plus, to the extent
deducted from revenues in determining Consolidated EBIT, (i) depreciation and
(ii) amortization. Consolidated EBITDA shall also include, without duplication,
the trailing 12 months of EBITDA for any Persons acquired by any Borrower or any
Subsidiary in the previous 12 months, which shall be adjusted for Nonrecurring
Private Company Owner Compensation paid during such period.
"Consolidated Funded Indebtedness" means at any time the aggregate
dollar amount of (i) Consolidated Indebtedness which has actually been funded
and is outstanding at such time, whether or not such amount is due or payable at
such time, plus (ii) Contingent Obligations.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrowers and their Subsidiaries calculated on a consolidated basis as of such
time.
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"Consolidated Interest Expense" means, with reference to any period,
the interest expense of the Borrowers and their Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Income" means, with reference to any period, the net
income (or loss) of the Borrowers and their Subsidiaries calculated on a
consolidated basis for such period.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrowers and their Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Rentals" means, with reference to any period, the Rentals
of the Borrowers and their Subsidiaries calculated on a consolidated basis for
such period.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrowers and
their Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.9.
"Corporate Base Rate" means a rate per annum equal to the corporate
base rate of interest announced by Bank One from time to time, changing when and
as said corporate base rate changes.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human
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<PAGE> 13
health, (iii) emissions, discharges or releases of Hazardous Substances into
surface water, ground water or land, or (iv) the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the rate determined by the Administrative Agent to
be the rate at which Bank One offers to place deposits in U.S. dollars with
first-class banks in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such Interest Period,
in the approximate amount of Bank One's relevant Eurodollar Loan and having a
maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and the Agents, taxes imposed on its overall net income,
and franchise taxes imposed on it, by (i) the jurisdiction under the laws of
which such Lender or the Agents is incorporated or organized or (ii) the
jurisdiction in which such Agent's or such Lender's principal executive office
or such Lender's applicable Lending Installation is located.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Extension Request" is defined in Section 2.20(i).
"Facility LC" is defined in Section 2.19.1.
"Facility LC Application" is defined in Section 2.19.3.
"Facility LC Collateral Account" is defined in Section 2.19.11.
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<PAGE> 14
"Facility Termination Date" means October 20, 2002 or any later date as
may be specified as the Facility Termination Date in accordance with Section
2.20 or any earlier date on which the Aggregate Commitment is reduced to zero or
otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m.
(Columbus time) on such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Floating Rate" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided
in Section 2.11, bears interest at the Floating Rate.
"Guarantor" means MPW Industrial Services, Ltd. and MPW Industrial,
Sociedad de Responsibilidad Limitada de Capital Variable, and each Subsidiary
which is required to become a Guarantor in accordance with the terms of this
Agreement, and their respective successors and assigns.
"Guaranty" means collectively (i) that certain Guaranty dated as of
October 20, 1999 executed by each Guarantor in favor of the Administrative
Agent, for the ratable benefit of the Lenders, as it may be amended or modified
and in effect from time to time and (ii) each Guaranty executed by a Guarantor,
after the date of this Agreement in favor of the Administrative Agent, for the
ratable benefit of the Lenders, as any such Guaranties may be amended or
modified and in effect from time to time, which is required to become a
Guarantor in accordance with the terms of this Agreement.
"Hazardous Substances" means 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.
"Increase Date" is defined in Section 2.22(i).
"Increasing Lender" is defined in Section 2.22(i).
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<PAGE> 15
"Indebtedness" of a Person means such Person's (i) obligations for
borrowed money, (ii) obligations representing the deferred purchase price of
Property or services (other than accounts payable arising in the ordinary course
of such Person's business payable on terms customary in the trade), (iii)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (iv) obligations which are evidenced by notes, acceptances, or other
instruments, (v) obligations of such Person to purchase securities or other
Property arising out of or in connection with the sale of the same or
substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) Contingent Obligations, (viii) Letters of Credit, and (ix)
any other obligation for borrowed money or other financial accommodation which
in accordance with Agreement Accounting Principles would be shown as a liability
on the consolidated balance sheet of such Person.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months commencing on a Business Day selected by the
Borrowers pursuant to this Agreement. Such Interest Period shall end on the day
which corresponds numerically to such date one, two, three or six months
thereafter, provided, however, that if there is no such numerically
corresponding day in such next, second, third or sixth succeeding month, such
Interest Period shall end on the last Business Day of such next, second, third
or sixth succeeding month. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees made in the
ordinary course of business), extension of credit (other than accounts
receivable arising in the ordinary course of business on terms customary in the
trade) or contribution of capital by such Person; stocks, bonds, mutual funds,
partnership interests, notes, debentures or other securities owned by such
Person; any deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other similar
instruments or contracts owned by such Person.
"LC Fee" is defined in Section 2.19.4.
"LC Issuer" means Bank One (or any subsidiary or affiliate of Bank One
designated by Bank One) in its capacity as issuer of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount under all Facility LCs outstanding at
such time plus (ii) the aggregate unpaid amount at such time of all
Reimbursement Obligations.
"LC Payment Date" is defined in Section 2.19.5.
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<PAGE> 16
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"Lending Installation" means, with respect to a Lender or an Agent, the
office, branch, subsidiary or affiliate of such Lender or such Agent listed on
the signature pages hereof or on a Schedule or otherwise selected by such Lender
or such Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
"Leverage Ratio" means, as of any date of calculation, the ratio of (i)
Consolidated Funded Indebtedness outstanding on such date to (ii) Consolidated
EBITDA for the Borrowers' and their Subsidiaries' then most-recently ended four
fiscal quarters.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"Loan" means, with respect to a Lender, such Lender's loan made
pursuant to Article II (or any conversion or continuation thereof).
"Loan Documents" means this Agreement, the Facility LC Applications,
any Notes issued pursuant to Section 2.13, all Guaranties and the Collateral
Documents.
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), results of operations,
or foreseeable financial prospects of the Borrowers and their Subsidiaries taken
as a whole, (ii) the ability of any Borrower to perform its obligations under
the Loan Documents to which it is a party, or (iii) the validity or
enforceability of any of the Loan Documents or the rights or remedies of the
Administrative Agent, the LC Issuer or the Lenders thereunder.
"Material Indebtedness" is defined in Section 7.5.
"Modify" and "Modification" are defined in Section 2.19.1.
"Moody's" means Moody's Investors Service, Inc.
"MPW Group" means MPW Industrial Services Group, Inc., an Ohio
corporation
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"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which any Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Mark-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Rate Management Transactions. "Unrealized
losses" means the fair market value of the cost to such Person of replacing such
Rate Management Transaction as of the date of determination (assuming the Rate
Management Transaction were to be terminated as of that date), and "unrealized
profits" means the fair market value of the gain to such Person of replacing
such Rate Management Transaction as of the date of determination (assuming such
Rate Management Transaction were to be terminated as of that date).
"Nonrecurring Private Company Owner Compensation" means salaries,
bonuses and other compensation paid to owners of a Person during the 12 month
period preceding such Person being acquired by a Borrower or a Subsidiary that
are discontinued or adjusted upon acquisition of such Person by such Borrower or
Subsidiary.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a Lender
pursuant to Section 2.13 in the form of Exhibit E.
"Notice of Assignment" is defined in Section 12.3.2.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all Reimbursement Obligations, all accrued and unpaid
fees, and all expenses, reimbursements, indemnities and other obligations of the
Borrowers to the Lenders or to any Lender, the Agents, the LC Issuer or any
indemnified party arising under the Loan Documents and documents evidencing a
revenue in connection with Rate Management Transactions.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
so-called "synthetic lease" transaction entered into by such Person, or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person, but excluding from this clause
(iv) Operating Leases.
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
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<PAGE> 18
"Operating Lease Obligations" means all fixed lease payments due under
all Operating Leases of the Borrowers and their Subsidiaries.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, at to any Lender at any time, the
sum of (i) the aggregate principal amount of its Loans outstanding at such time,
plus (ii) an amount equal to its Pro Rata Share of the LC Obligations at such
time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each month.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which any Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule attached hereto identified as
such.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment and the denominator
of which is the Aggregate Commitment.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Purchasers" is defined in Section 12.3.1.
"Rate Management Obligations" of a Person means any and all obligations
of such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between
any Borrower(s) and any Lender or Affiliate thereof which is a rate swap, basis
swap, forward rate transaction, commodity swap,
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<PAGE> 19
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, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
"Real Property" is defined in Section 5.16(a).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"Reimbursement Obligations" means, at any time, the aggregate of all
obligations of the Borrowers then outstanding under Section 2.19 to reimburse
the LC Issuer for amounts paid by the LC Issuer in respect of any one or more
drawings under Facility LCs.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation waived
the requirement of Section 4043(a) of ERISA that it be notified within 30 days
of the occurrence of such event, provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of Section 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"Reports" is defined in Section 9.6.
"Required Lenders" means Lenders in the aggregate having greater than
50% of the Aggregate Commitment or, if the Aggregate Commitment has been
terminated, Lenders in the aggregate holding greater than 50% of the Aggregate
Outstanding Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
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"Response Date" is defined in Section 2.19.
"Risk-Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard and Poor's Ratings Services, a division of The
McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Second Extension Request" is defined in Section 2.20(ii).
"Second Response Date" is defined in Section 2.20(ii).
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
all Rate Management Obligations owing to one or more Lenders.
"Security Agreement" means the Pledge and Security Agreement among the
Borrowers and the Administrative Agent, for the benefit of the Lenders, of even
date herewith, as it may be amended, supplemented or modified and in effect from
time to time.
"Single Employer Plan" means a Plan maintained by any Borrower or any
member of the Controlled Group for employees of any Borrower or any member of
the Controlled Group.
"Subordinated Indebtedness" of a Person means any Indebtedness of such
Person the payment of which is subordinated to payment of the Obligations to the
written satisfaction of the Required Lenders.
"Subsidiary" of a Person means (i) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(ii) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of MPW Group which is not a Borrower hereunder.
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<PAGE> 21
"Substantial Portion" means, with respect to the Property of the
Borrowers and their Subsidiaries, Property which (i) represents more than 10% of
the consolidated assets of the Borrowers and their Subsidiaries as would be
shown in the consolidated financial statements of the Borrowers and their
Subsidiaries as at the beginning of the twelve-month period ending with the
month in which such determination is made, or (ii) is responsible for more than
10% of the consolidated net sales or of the consolidated net income of the
Borrowers and their Subsidiaries as reflected in the financial statements
referred to in clause (i) above.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance.
"UCC Financing Statements" means financing statements under the Uniform
Commercial Code in the applicable jurisdiction.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary
(including a Borrower) all of the outstanding voting securities of which shall
at the time be owned or controlled, directly or indirectly, by such Person or
one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one
or more Wholly-Owned Subsidiaries of such Person, or (ii) any partnership,
limited liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary voting power of
which shall at the time be so owned or controlled.
"Year 2000 Compliant" means that the computer applications 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.
"Year 2000 Issues" means anticipated costs, problems and uncertainties
associated with the inability of certain computer applications to effectively
handle data including dates on and
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<PAGE> 22
after January 1, 2000, as such inability affects the business, operations and
financial condition of any Borrower and its Subsidiaries and of the Borrowers'
and their Subsidiaries' material customers, suppliers and vendors.
"Year 2000 Program" is defined in Section 5.19.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. COMMITMENT. From and including the date of this Agreement and
prior to the Facility Termination Date, each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to (i) make Loans to the
Borrowers and (ii) participate in Facility LCs issued upon the request of the
Borrowers, provided that, after giving effect to the making of each such Loan
and the issuance of each such Facility LC, such Lender's Outstanding Credit
Exposure shall not exceed its Commitment. Subject to the terms of this
Agreement, the Borrowers may borrow, repay and reborrow at any time prior to the
Facility Termination Date. The Commitments to extend credit hereunder shall
expire on the Facility Termination Date. The LC Issuer will issue Facility LCs
hereunder on the terms and conditions set forth in Section 2.19.
2.2. REQUIRED PAYMENTS; TERMINATION. The Aggregate Outstanding Credit
Exposure and all other unpaid Obligations shall be paid in full by the Borrowers
on the Facility Termination Date. The Borrowers shall be irrevocably and
unconditionally obligated, jointly and severally, to pay when due all principal,
interest, fees and other amounts payable under the Loan Documents without
presentment, demand, protest or other formalities of any kind.
2.3. RATABLE LOANS. Each Advance hereunder shall consist of Loans made
from the several Lenders ratably according to their Pro Rata Shares.
2.4. TYPES OF ADVANCES. The Advances may be Floating Rate Advances or
Eurodollar Advances, or a combination thereof, selected by the Borrowers in
accordance with Sections 2.8 and 2.9.
2.5. COMMITMENT FEE; REDUCTIONS IN AGGREGATE COMMITMENT. The Borrowers
agree to pay to the Administrative Agent for the account of each Lender
according to its Pro Rata Share a commitment fee at a per annum rate equal to
the Applicable Fee Rate on the average daily Available Aggregate Commitment from
the date of this Agreement to and including the Facility Termination Date,
payable quarterly in arrears (commencing on December 31, 1999) and on the
Facility Termination Date. The Borrowers may permanently reduce the Aggregate
Commitment
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in whole, or in part ratably among the Lenders in a minimum amount of
$5,000,000, and by integral multiples of $1,000,000 in excess thereof, upon at
least three Business Days' written notice to the Administrative Agent, which
notice shall specify the amount of any such reduction, provided, however, that
the amount of the Aggregate Commitment may not be reduced below the Aggregate
Outstanding Credit Exposure. All accrued commitment fees shall be payable on the
effective date of any termination of the obligations of the Lenders to make
Credit Extensions hereunder.
2.6. MINIMUM AMOUNT OF EACH ADVANCE. Each Eurodollar Advance shall be
in the minimum amount of $3,000,000 (and in multiples of $1,000,000 if in excess
thereof), and each Floating Rate Advance shall be in the minimum amount of
$250,000 (and in multiples of $50,000 if in excess thereof), provided, however,
that any Floating Rate Advance may be in the amount of the Available Aggregate
Commitment.
2.7. OPTIONAL AND MANDATORY PRINCIPAL PAYMENTS. (i) The Borrowers may
from time to time pay, without penalty or premium, all outstanding Floating Rate
Advances, or, in a minimum aggregate amount of $1,000,000, any portion of the
outstanding Floating Rate Advances upon one Business Day's prior notice to the
Administrative Agent. The Borrowers may from time to time pay, subject to the
payment of any funding indemnification amounts required by Section 3.4 but
without penalty or premium, all outstanding Eurodollar Advances, or, in a
minimum aggregate amount of $3,000,000 or any integral multiple of $1,000,000 in
excess thereof, any portion of the outstanding Eurodollar Advances upon three
Business Days' prior notice to the Administrative Agent.
(ii) The Borrowers shall make mandatory prepayment of Advances as
follows:
(a) as required by Section 6.13(ii).
(b) in an amount equal to 100% of the net proceeds
realized or received (x) upon the sale of any common
stock, preferred stock or other equity, or (y) from
the issuance of any Subordinated Indebtedness.
2.8. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW ADVANCES.
The Borrowers shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time,
provided, however, there may be no more than five (5) different Interest Periods
for Eurodollar Advances 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). The
Borrowers shall give the Administrative Agent irrevocable notice (a "Borrowing
Notice") not later than 10:00 a.m. (Columbus time) at least one Business Day
before the Borrowing Date of each Floating Rate Advance and three Business Days
before the Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such Advance,
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(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
Not later than noon (Columbus time) on each Borrowing Date, each Lender shall
make available its Loan or Loans in funds immediately available in Columbus to
the Administrative Agent at its address specified pursuant to Article XIII. The
Administrative Agent will make the funds so received from the Lenders available
to the Borrowers at the Administrative Agent's aforesaid address.
2.9. CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances pursuant to this Section
2.9 or are repaid in accordance with Section 2.7. Each Eurodollar Advance shall
continue as a Eurodollar Advance until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Advance shall be automatically
converted into a Floating Rate Advance unless (x) such Eurodollar Advance is or
was repaid in accordance with Section 2.7 or (y) the Borrowers shall have given
the Administrative Agent a Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period, such Eurodollar Advance
continue as a Eurodollar Advance for the same or another Interest Period.
Subject to the terms of Section 2.6, the Borrowers may elect from time to time
to convert all or any part of a Floating Rate Advance into a Eurodollar Advance.
The Borrowers shall give the Administrative Agent irrevocable notice (a
"Conversion/Continuation Notice") of each conversion of a Floating Rate Advance
into a Eurodollar Advance or continuation of a Eurodollar Advance not later than
10:00 a.m. (Columbus time) at least three Business Days prior to the date of the
requested conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
2.10. CHANGES IN INTEREST RATE, ETC. Each Floating Rate Advance shall
bear interest on the outstanding principal amount thereof, for each day from and
including the date such Advance is made or is automatically converted from a
Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurodollar Advance pursuant
to Section 2.9 hereof, at a rate per annum equal to the Floating Rate for such
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day. Changes in the rate of interest on that portion of any Advance maintained
as a Floating Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurodollar Advance shall bear interest on the
outstanding principal amount thereof from and including the first day of the
Interest Period applicable thereto to (but not including) the last day of such
Interest Period at the interest rate determined by the Administrative Agent as
applicable to such Eurodollar Advance based upon the Borrowers' selections under
Sections 2.8 and 2.9 and otherwise in accordance with the terms hereof. No
Interest Period may end after the Facility Termination Date.
2.11. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Default the Required Lenders may, at their option, by notice to the
Borrowers (which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that no Advance may be made as,
converted into or continued as a Eurodollar Advance. During the continuance of a
Default the Required Lenders may, at their option, by notice to the Borrowers
(which notice may be revoked at the option of the Required Lenders
notwithstanding any provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each (x) Eurodollar
Advance shall bear interest for the remainder of the applicable Interest Period,
and (y) each Floating Rate Advance, shall bear interest at a rate per annum
equal to the Floating Rate in effect from time to time plus 2% per annum and
(ii) the LC Fee shall be increased by 2% per annum, provided that, during the
continuance of a Default under Section 7.6 or 7.7, the interest rates set forth
in clauses (i) above and the increase in the LC Fee set forth in clause (ii)
above shall be applicable to all Credit Extensions without any election or
action on the part of the Administrative Agent or any Lender.
2.12. METHOD OF PAYMENT. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified pursuant to Article XIII, or at any other Lending Installation
of the Administrative Agent specified in writing by the Administrative Agent to
the Borrowers, by noon (local time) on the date when due and shall (except in
the case of Reimbursement Obligations for which the LC Issuer has not been fully
indemnified by the Lenders, or as otherwise specifically required hereunder) be
applied ratably by the Administrative Agent among the Lenders. Each payment
delivered to the Administrative Agent for the account of any Lender shall be
delivered promptly by the Administrative Agent to such Lender in the same type
of funds that the Administrative Agent received at its address specified
pursuant to Article XIII or at any Lending Installation specified in a notice
received by the Administrative Agent from such Lender. The Administrative Agent
is hereby authorized to charge the account of any Borrower maintained with Bank
One for each payment of principal, interest, Reimbursement Obligations and fees
as it becomes due hereunder. Each reference to the Administrative Agent in this
Section 2.12 shall also be deemed to refer, and shall apply equally, to the LC
Issuer, in the case of payments required to be made by the Borrowers to the LC
Issuer pursuant to Section 2.19.6.
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2.13. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS. (i) Each Lender
shall maintain in accordance with its usual practice an account or accounts
evidencing the indebtedness of the Borrowers to such Lender resulting from each
Loan made by such Lender from time to time, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts in which it
will record (a) the amount of each Loan made hereunder, the Type thereof and the
Interest Period with respect thereto, (b) the amount of any principal or
interest due and payable or to become due and payable from the Borrowers to each
Lender hereunder, (c) the original stated amount of each Facility LC and the
amount of LC Obligations outstanding at any time, and (d) the amount of any sum
received by the Administrative Agent hereunder from the Borrowers and each
Lender's share thereof.
(iii) The entries maintained in the accounts maintained pursuant to
paragraphs (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrowers to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a promissory
note (a "Note"). In such event, the Borrowers shall prepare, execute and deliver
to such Lender a Note payable to the order of such Lender in the form of Exhibit
E attached hereto. Thereafter, the Loans evidenced by such Note and interest
thereon shall at all times (including after any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order of the payee
named therein or any assignee pursuant to Section 12.3, except to the extent
that any such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced as described
in paragraphs (i) and (ii) above.
2.14. TELEPHONIC NOTICES. The Borrowers hereby authorize the Lenders
and the Administrative Agent to extend, convert or continue Advances, effect
selections of Types of Advances and to transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the Borrowers, it being understood
that the foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given telephonically. The
Borrowers agree to deliver promptly to the Administrative Agent a written
confirmation, if such confirmation is requested by the Administrative Agent or
any Lender, of each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
2.15. INTEREST PAYMENT DATES; INTEREST AND FEE BASIS. Interest accrued
on each Floating Rate Advance shall be payable on each Payment Date, commencing
with the first such date to occur after the date of this Agreement and at
maturity. Interest accrued on each Eurodollar
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Advance shall be payable on the last day of its applicable Interest Period, on
any date on which the Eurodollar Advance is prepaid, whether by acceleration or
otherwise, and at maturity. Interest accrued on each Eurodollar Advance having
an Interest Period longer than three months shall also be payable on the last
day of each three-month interval during such Interest Period. Interest on
Eurodollar Advances, commitment fees and LC Fees shall be calculated for actual
days elapsed on the basis of a 360-day year; interest on Floating Rate Advances
shall be calculated for actual days elapsed on the basis of a 365/366-day year.
Interest shall be payable for the day an Advance is made but not for the day of
any payment on the amount paid if payment is received prior to noon (local time)
at the place of payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest in connection with such payment.
2.16. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS AND
COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Administrative Agent
will notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice
received by it hereunder. Promptly after notice from the LC Issuer, the
Administrative Agent will notify each Lender of the contents of each request for
issuance of a Facility LC hereunder. The Administrative Agent will notify each
Lender of the interest rate applicable to each Eurodollar Advance promptly upon
determination of such interest rate and will give each Lender prompt notice of
each change in the Alternate Base Rate.
2.17. LENDING INSTALLATIONS. Each Lender may book its Loans and its
participation in any LC Obligations and the LC Issuer may book the Facility LCs
at any Lending Installation selected by such Lender or the LC Issuer, as the
case may be, and may change its Lending Installation from time to time. All
terms of this Agreement shall apply to any such Lending Installation and the
Loans, Facility LCs, participations in LC Obligations and any Notes issued
hereunder shall be deemed held by each Lender or the LC Issuer, as the case may
be, for the benefit of any such Lending Installation. Each Lender and the LC
Issuer may, by written notice to the Administrative Agent and the Borrowers in
accordance with Article XIII, designate replacement or additional Lending
Installations through which Loans will be made by it or Facility LCs will be
issued by it and for whose account Loan payments or payments with respect to
Facility LCs are to be made.
2.18. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless the
Borrowers or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrowers, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that such Lender or the Borrowers do not
intend to make such payment, the Administrative Agent may assume that such
payment has been made. The Administrative Agent may, but shall not be obligated
to, make the amount of such payment available to the intended recipient in
reliance upon such assumption. If either such
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Lender or the Borrowers, as the case may be, has not in fact made such payment
to the Administrative Agent, the recipient of such payment shall, on demand by
the Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrowers, the interest rate applicable to the relevant Loan.
2.19. FACILITY LCS.
2.19.1. ISSUANCE. The LC Issuer hereby agrees, on the terms
and conditions set forth in this Agreement, to issue standby letters of
credit (each, a "Facility LC") and to renew, extend, increase, decrease
or otherwise modify each Facility LC ("Modify," and each such action a
"Modification"), from time to time from and including the date of this
Agreement and prior to the Facility Termination Date upon the request
of the Borrowers; provided that immediately after each such Facility LC
is issued or Modified, (i) the aggregate amount of the outstanding LC
Obligations shall not exceed $5,000,000 and (ii) the Aggregate
Outstanding Credit Exposure shall not exceed the Aggregate Commitment.
No Facility LC shall have an expiry date later than the earlier of (x)
the fifth Business Day prior to the Facility Termination Date and (y)
one year after its issuance.
2.19.2. PARTICIPATIONS. Upon the issuance or Modification by
the LC Issuer of a Facility LC in accordance with this Section 2.19,
the LC Issuer shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably sold to each Lender,
and each Lender shall be deemed, without further action by any party
hereto, to have unconditionally and irrevocably purchased from the LC
Issuer, a participation in such Facility LC (and each Modification
thereof) and the related LC Obligations in proportion to its Pro Rata
Share.
2.19.3. NOTICE. Subject to Section 2.19.1, the Borrowers shall
give the LC Issuer notice prior to 10:00 a.m. (Columbus time) at least
five Business Days prior to the proposed date of issuance or
Modification of each Facility LC, specifying the beneficiary, the
proposed date of issuance (or Modification) and the expiry date of such
Facility LC, and describing the proposed terms of such Facility LC and
the nature of the transactions proposed to be supported thereby. Upon
receipt of such notice, the LC Issuer shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly
notify each Lender, of the contents thereof and of the amount of such
Lender's participation in such proposed Facility LC. The issuance or
Modification by the LC Issuer of any Facility LC shall, in addition to
the conditions precedent set forth in Article IV (the satisfaction of
which the LC Issuer shall have no duty to ascertain), be subject to the
conditions precedent that such Facility LC shall be satisfactory to the
LC Issuer and that the Borrowers shall have executed and delivered such
application agreement and/or
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such other instruments and agreements relating to such Facility LC as
the LC Issuer shall have reasonably requested (each, a "Facility LC
Application"). In the event of any conflict between the terms of this
Agreement and the terms of any Facility LC Application, the terms of
this Agreement shall control.
2.19.4. LC FEES. The Borrowers shall pay to the Administrative
Agent, for the account of the Lenders ratably in accordance with their
respective Pro Rata Shares, with respect to each standby Facility LC, a
letter of credit fee at a per annum rate equal to the Applicable Margin
for Eurodollar Loans in effect from time to time on the average daily
undrawn stated amount under such standby Facility LC, such fee to be
payable in arrears on each Payment Date (each such fee described in
this sentence an "LC Fee"). The Borrowers shall also pay to the LC
Issuer for its own account (x) at the time of issuance of each Facility
LC, a fronting fee in an amount to be agreed upon between the LC Issuer
and the Borrowers, and (y) documentary and processing charges in
connection with the issuance or Modification of and draws under
Facility LCs in accordance with the LC Issuer's standard schedule for
such charges as in effect from time to time.
2.19.5. ADMINISTRATION; REIMBURSEMENT BY LENDERS. Upon receipt
from the beneficiary of any Facility LC of any demand for payment under
such Facility LC, the LC Issuer shall notify the Administrative Agent
and the Administrative Agent shall promptly notify the Borrowers and
each other Lender as to the amount to be paid by the LC Issuer as a
result of such demand and the proposed payment date (the "LC Payment
Date"). The responsibility of the LC Issuer to the Borrowers and each
Lender shall be only to determine that the documents (including each
demand for payment) delivered under each Facility LC in connection with
such presentment shall be in conformity in all material respects with
such Facility LC. The LC Issuer shall endeavor to exercise the same
care in the issuance and administration of the Facility LCs as it does
with respect to letters of credit in which no participations are
granted, it being understood that in the absence of any gross
negligence or willful misconduct by the LC Issuer, each Lender shall be
unconditionally and irrevocably liable without regard to the occurrence
of any Default or any condition precedent whatsoever, to reimburse the
LC Issuer on demand for (i) such Lender's Pro Rata Share of the amount
of each payment made by the LC Issuer under each Facility LC to the
extent such amount is not reimbursed by the Borrowers pursuant to
Section 2.19.6 below, plus (ii) interest on the foregoing amount to be
reimbursed by such Lender, for each day from the date of the LC
Issuer's demand for such reimbursement (or, if such demand is made
after 11:00 a.m. (Columbus time) on such date, from the next succeeding
Business Day) to the date on which such Lender pays the amount to be
reimbursed by it, at a rate of interest per annum equal to the Federal
Funds Effective Rate for the first three days and, thereafter, at a
rate of interest equal to the rate applicable to Floating Rate
Advances.
2.19.6. REIMBURSEMENT BY BORROWERS. The Borrowers shall be
irrevocably and unconditionally obligated, jointly and severally, to
reimburse the LC Issuer on or before the applicable LC Payment Date for
any amounts to be paid by the LC Issuer upon any
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drawing under any Facility LC, without presentment, demand, protest or
other formalities of any kind; provided that neither any Borrower nor
any Lender shall hereby be precluded from asserting any claim for
direct (but not consequential) damages suffered by such Borrower or
such Lender to the extent, but only to the extent, caused by (i) the
willful misconduct or gross negligence of the LC Issuer in determining
whether a request presented under any Facility LC issued by it complied
with the terms of such Facility LC or (ii) the LC Issuer's failure to
pay under any Facility LC issued by it after the presentation to it of
a request strictly complying with the terms and conditions of such
Facility LC. All such amounts paid by the LC Issuer and remaining
unpaid by the Borrowers shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on
or before the applicable LC Payment Date and (y) the sum of 2% plus the
rate applicable to Floating Rate Advances for such day if such day
falls after such LC Payment Date. The LC Issuer will pay to each Lender
ratably in accordance with its Pro Rata Share all amounts received by
it from the Borrowers for application in payment, in whole or in part,
of the Reimbursement Obligation in respect of any Facility LC issued by
the LC Issuer, but only to the extent such Lender has made payment to
the LC Issuer in respect of such Facility LC pursuant to Section
2.19.5. Subject to the terms and conditions of this Agreement
(including without limitation the submission of a Borrowing Notice in
compliance with Section 2.8 and the satisfaction of the applicable
conditions precedent set forth in Article IV), the Borrowers may
request an Advance hereunder for the purpose of satisfying any
Reimbursement Obligation.
2.19.7. OBLIGATIONS ABSOLUTE. The Borrowers' obligations under
this Section 2.19 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense
to payment which the Borrowers may have or have had against the LC
Issuer, any Lender or any beneficiary of a Facility LC. The Borrowers
further agree with the LC Issuer and the Lenders that the LC Issuer and
the Lenders shall not be responsible for, and the Borrowers'
Reimbursement Obligation in respect of any Facility LC shall not be
affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should
in fact prove to be in any or all respects invalid, fraudulent or
forged, or any dispute between or among the Borrowers, any of their
Affiliates, the beneficiary of any Facility LC or any financing
institution or other party to whom any Facility LC may be transferred
or any claims or defenses whatsoever of the Borrowers or of any of its
Affiliates against the beneficiary of any Facility LC or any such
transferee. The LC Issuer shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Facility
LC. The Borrowers agree that any action taken or omitted by the LC
Issuer or any Lender under or in connection with each Facility LC and
the related drafts and documents, if done without gross negligence or
willful misconduct, shall be binding upon the Borrowers and shall not
put the LC Issuer or any Lender under any liability to the Borrowers.
Nothing in this Section 2.19.7 is intended to limit the right of the
Borrowers to make a claim against the LC Issuer for damages as
contemplated by the proviso to the first sentence of Section 2.19.6.
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2.19.8. ACTIONS OF LC ISSUER. The LC Issuer shall be entitled
to rely, and shall be fully protected in relying, upon any Facility LC,
draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document 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, independent
accountants and other experts selected by the LC Issuer. The LC Issuer
shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first have received such advice or
concurrence of the Required Lenders as it reasonably deems appropriate
or it shall first be indemnified to its reasonable satisfaction by the
Lenders against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.19, the LC Issuer
shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the
Required Lenders, and such request and any action taken or failure to
act pursuant thereto shall be binding upon the Lenders and any future
holders of a participation in any Facility LC.
2.19.9. INDEMNIFICATION. The Borrowers, jointly and severally,
hereby agree to indemnify and hold harmless each Lender, the LC Issuer
and the Administrative Agent, and their respective directors, officers,
agents and employees from and against any and all claims and damages,
losses, liabilities, costs or expenses which such Lender, the LC Issuer
or the Administrative Agent may incur (or which may be claimed against
such Lender, the LC Issuer or the Administrative Agent by any Person
whatsoever) by reason of or in connection with the issuance, execution
and delivery or transfer of or payment or failure to pay under any
Facility LC or any actual or proposed use of any Facility LC,
including, without limitation, any claims, damages, losses,
liabilities, costs or expenses which the LC Issuer may incur by reason
of or in connection with (i) the failure of any other Lender to fulfill
or comply with its obligations to the LC Issuer hereunder (but nothing
herein contained shall affect any rights the Borrowers may have against
any defaulting Lender) or (ii) by reason of or on account of the LC
Issuer issuing any Facility LC which specifies that the term
"Beneficiary" included therein includes any successor by operation of
law of the named Beneficiary, but which Facility LC does not require
that any drawing by any such successor Beneficiary be accompanied by a
copy of a legal document, satisfactory to the LC Issuer, evidencing the
appointment of such successor Beneficiary; provided that the Borrowers
shall not be required to indemnify any Lender, the LC Issuer or the
Administrative Agent for any claims, damages, losses, liabilities,
costs or expenses to the extent, but only to the extent, caused by (x)
the willful misconduct or gross negligence of the LC Issuer in
determining whether a request presented under any Facility LC complied
with the terms of such Facility LC or (y) the LC Issuer's failure to
pay under any Facility LC after the presentation to it of a request
strictly complying with the terms and conditions of such Facility LC.
Nothing in this Section 2.19.9 is intended to limit the obligations of
the Borrowers under any other provision of this Agreement.
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2.19.10. LENDERS' INDEMNIFICATION. Each Lender shall, ratably
in accordance with its Pro Rata Share, indemnify the LC Issuer, its
affiliates and their respective directors, officers, agents and
employees (to the extent not reimbursed by the Borrowers) against any
cost, expense (including reasonable counsel fees and disbursements),
claim, demand, action, loss or liability (except such as result from
such indemnitees' gross negligence or willful misconduct or the LC
Issuer's failure to pay under any Facility LC after the presentation to
it of a request strictly complying with the terms and conditions of the
Facility LC) that such indemnitees may suffer or incur in connection
with this Section 2.19 or any action taken or omitted by such
indemnitees hereunder.
2.19.11. FACILITY LC COLLATERAL ACCOUNT. The Borrowers agree
that they will, upon the request of the Administrative Agent or the
Required Lenders and until the final expiration date of any Facility LC
and thereafter as long as any amount is payable to the LC Issuer or the
Lenders in respect of any Facility LC, maintain a special collateral
account pursuant to arrangements satisfactory to the Administrative
Agent (the "Facility LC Collateral Account") at the Administrative
Agent's office at the address specified pursuant to Article XIII, in
the name of the Borrowers but under the sole dominion and control of
the Administrative Agent, for the benefit of the Lenders and in which
the Borrowers shall have no interest other than as set forth in Section
8.1. The Borrowers hereby pledge, assign and grant to the
Administrative Agent, on behalf of and for the ratable benefit of the
Lenders and the LC Issuer, a security interest in all of the Borrowers'
right, title and interest in and to all funds which may from time to
time be on deposit in the Facility LC Collateral Account to secure the
prompt and complete payment and performance of the Obligations. The
Administrative Agent will invest any funds on deposit from time to time
in the Facility LC Collateral Account in certificates of deposit of
Bank One having a maturity not exceeding 30 days. Nothing in this
Section 2.19.11 shall either obligate the Administrative Agent to
require the Borrowers to deposit any funds in the Facility LC
Collateral Account or limit the right of the Administrative Agent to
release any funds held in the Facility LC Collateral Account in each
case other than as required by Section 8.1.
2.19.12. RIGHTS AS A LENDER. In its capacity as a Lender, the
LC Issuer shall have the same rights and obligations as any other
Lender.
2.20. EXTENSION OF FACILITY TERMINATION DATE. (i) The
Borrowers may request a one-year extension of the Facility Termination Date by
submitting a request for an extension to the Administrative Agent (an "Extension
Request") no more than 60 days prior to the date which is one-year prior to the
Facility Termination Date. The Extension Request must specify the new Facility
Termination Date requested by the Borrowers (being one-year from the existing
Facility Termination Date) and the date (which must be at least 30 days after
the Extension Request is delivered to the Administrative Agent) as of which the
Lenders must respond to the Extension Request (the "Response Date"). Promptly
upon receipt of an Extension Request, the Administrative Agent shall notify each
Lender of the contents thereof and shall request each
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Lender to approve the Extension Request. Each Lender approving the Extension
Request shall deliver its written consent no later than the Response Date. If
the consent of each of the Lenders is received by the Administrative Agent, the
new Facility Termination Date specified in the Extension Request shall become
effective on the existing Facility Termination Date and the Administrative Agent
shall promptly notify the Borrowers and each Lender of the new Facility
Termination Date.
(ii) Provided the Facility Termination Date has been extended in
accordance with paragraph (i) above, the Borrowers may request an additional
one-year extension of the then existing Facility Termination Date by submitting
a request for such an extension to the Administrative Agent (the "Second
Extension Request") no more than 60 days prior to the date which is one-year
prior to the then existing Facility Termination Date. The Second Extension
Request must specify the new Facility Termination Date requested by the
Borrowers (being one-year from the then existing Facility Termination Date) and
the date (which must be at least 30 days after the Second Extension Request is
delivered to the Administrative Agent) as of which the Lenders must respond to
the Second Extension Request (the "Second Response Date"). Promptly upon receipt
of the Second Extension Request, the Administrative Agent shall notify each
Lender of the contents thereof and shall request each Lender to approve the
Second Extension Request. Each Lender approving the Second Extension Request
shall deliver its written consent no later than the Second Response Date. If the
consent of each of the Lenders is received by the Administrative Agent, the new
Facility Termination Date specified in the Second Extension Request shall become
effective on the then existing Facility Termination Date and the Administrative
Agent shall promptly notify the Borrowers and each Lender of the new Facility
Termination Date.
2.21. REPLACEMENT OF LENDER. If the Borrowers are required pursuant to
Section 3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any
Lender's obligation to make or continue, or to convert Floating Rate Advances
into, Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender
so affected an "Affected Lender"), the Borrowers may elect, if such amounts
continue to be charged or such suspension is still effective, to replace such
Affected Lender as a Lender party to this Agreement, provided that no Default or
Unmatured Default shall have occurred and be continuing at the time of such
replacement, and provided further that, concurrently with such replacement, (i)
another bank or other entity which is reasonably satisfactory to the Borrowers
and the Administrative Agent shall agree, as of such date, to purchase for cash
the Advances and other Obligations due to the Affected Lender pursuant to an
assignment substantially in the form of Exhibit C and to become a Lender for all
purposes under this Agreement and to assume all obligations of the Affected
Lender to be terminated as of such date and to comply with the requirements of
Section 12.3 applicable to assignments, and (ii) the Borrowers shall pay to such
Affected Lender in same day funds on the day of such replacement all interest,
fees and other amounts then accrued but unpaid to such Affected Lender by the
Borrowers hereunder to and including the date of termination, including without
limitation payments due to such Affected Lender under Sections 3.1, 3.2 and 3.5.
2.22 OPTIONAL INCREASE IN THE AGGREGATE COMMITMENT. (i) The Borrowers
may at any time,
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by notice to the Administrative Agent, propose that the Aggregate Commitment be
increased (the amount of such increase being a "Commitment Increase"), provided,
however, that (x) the Borrowers may not propose a Commitment Increase if it has
previously elected to reduce the Aggregate Commitment hereunder, (y) in no event
shall the Aggregate Commitment at any time exceed $150,000,000 and (z) no
Default or Unmatured Default shall have occurred and be continuing on the date
such Commitment Increase becomes effective as described in the last sentence of
this Section 2.22 (i) (the "Increase Date"). The Administrative Agent shall
notify the Lenders thereof promptly upon its receipt of any such notice. The
Administrative Agent agrees that it will cooperate with the Borrowers in
discussions with the Lenders and other lending institutions with a view to
arranging the proposed Commitment Increase through the increase of the
Commitments of, first, one or more of the Lenders (each such Lender that is
willing to increase its Commitment hereunder being an "Increasing Lender") and,
if the existing Lenders are not willing, in the aggregate, to increase their
Commitments by the amount of the requested Commitment Increase, then by the
addition of one or more other lending institutions acceptable to the
Administrative Agent and to the Borrowers (each an "Assuming Lender") as Lenders
and as parties to this Agreement; provided, however, that it shall be in each
Lender's sole discretion whether to increase its Commitment hereunder in
connection with the proposed Commitment Increase; and provided further that the
minimum Commitment of each Assuming Lender that becomes a party to this
Agreement pursuant to this Section 2.22 shall be at least equal to $10,000,000.
Upon execution and delivery by the Borrowers, each Increasing Lender and each
Assuming Lender of an instrument in form satisfactory to the Administrative
Agent, each such Increasing Lender shall have a Commitment as set forth therein
and each such Assuming Lender shall become a Lender hereunder with a Commitment
as set forth therein; provided that the Administrative Agent shall have received
by no later than 10:00 A.M. (Columbus time) on the applicable Increase Date a
certified copy of resolutions of the governing body of each Borrower authorizing
the execution and delivery of the instrument effecting such Commitment Increase.
(ii) Each Increasing Lender and each Assuming Lender shall, before noon
(Columbus time) on the applicable Increase Date, make available to the
Administrative Agent in accordance with the provisions of this Agreement, in
same day funds, in the case of such Assuming Lender, an amount equal to such
Assuming Lender's ratable portion of the Advances then outstanding (calculated
based on its Commitment as a percentage of the Aggregate Commitment after giving
effect to the relevant Commitment Increase) and, in the case of such Increasing
Lender, an amount equal to the excess of (i) such Increasing Lender's ratable
portion of the Advances then outstanding after giving effect to the relevant
Commitment Increase over (ii) such Increasing Lender's ratable portion of the
Advances then outstanding before giving effect to the relevant Commitment
Increase. After the Administrative Agent's receipt of such funds from each such
Increasing Lender and each such Assuming Lender, the Administrative Agent will,
if necessary, promptly thereafter cause to be distributed like funds to the
other Lenders in an amount to each other Lender such that the aggregate amount
of the outstanding Advances owing to each Lender after giving effect to such
distribution equals such Lender's ratable portion of the Advances then
outstanding after giving effect to the relevant Commitment Increase. Upon
request of any Increasing Lender or Approving Lender in accordance with Section
2.13 (iv) promptly after the Increase Date, the Borrowers will execute and
deliver to the Administrative Agent new Revolving Notes for the Increasing
Lender and the Assuming Lenders. If any Lender incurs any
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loss or cost of the type described in Section 3.4 as a result of the payments
required under this Section 2.22(ii), the Borrowers shall indemnify such Lender
for such loss or cost as described in said Section 3.4.
2.23 COLLATERAL. The Obligations shall be secured by a first priority
lien and security interest in all Property (but excluding real property) of the
Borrowers, including, without limitation, all outstanding shares of capital
stock or other ownership interests of all Subsidiaries (including Subsidiaries
that are Borrowers) pursuant to the Collateral Documents; provided, however, the
Banks and the Administrative Agent reserve the right to hereafter require that
the Obligations be secured by a first priority lien and security interest in all
such real property, and upon the request of the Administrative Agent, the
Borrowers shall execute and deliver all such documents, and provide other
documentation, as required by the Administrative Agent to grant such a lien and
security interest in such real property. The Property subject to the Collateral
Documents shall be released from the lien and security interest thereof promptly
after the receipt by the Borrowers of at least $35,000,000 in net proceeds from
the sale of common stock, preferred stock or other equity, provided that the pro
forma Leverage Ratio of the Borrowers and their Subsidiaries at the end of the
most recent fiscal quarter of Borrowers' fiscal year, after giving effect to the
use of such net proceeds to prepay Advances, as required by Section 2.7(ii)(b),
is less than or equal to 2.5 to 1.0. Notwithstanding any release of such liens
and security interests, if such Leverage Ratio thereafter increases above 3.0 to
1.0 at the end of any subsequent fiscal quarter, the Borrowers shall again grant
a first priority lien and security interest in all such Property pursuant to a
reinstatement of Collateral Documents and/or execution and delivery of new
Collateral Documents.
2.24 ADDITIONAL BORROWERS AND GUARANTORS. In order to induce the
Lenders, subject to the terms of this Agreement and the other Loan Documents, to
continue to make additional Advances and Loans to the Borrowers and Bank One to
issue additional Facility LCs and as consideration for Advances and Loans
previously made and Facility LCs previously issued, each Person which becomes a
Subsidiary after the date of this Agreement shall be required to become, at the
option of the Required Lenders, either (x) a party to this Agreement, the
Facility LC Applications, the Notes and the other Loan Documents by the
execution and delivery by such a Subsidiary and the Administrative Agent of the
Supplement in the form of Exhibit F attached hereto and by the execution and
delivery of other documents, including Collateral Documents, as may be required
by the Administrative Agent, or (y) a Guarantor by the execution and delivery by
such a Subsidiary of a Guaranty and by the execution and delivery of other
documents as may be required by the Administrative Agent. Upon such execution
and delivery, each such Subsidiary shall, as applicable, become either (x) a
Borrower under this Agreement, the Facility LC Applications, the Notes and the
other Loan Documents with the same force and effect as if originally named a
Borrower under this Agreement, the Facility LC Applications, the Notes and the
other Loan Documents, or (y) a Guarantor. The execution of and delivery of any
such Supplements or Guaranties shall not require the consent of any other
Borrower or Guarantor. The rights and obligations of (x) each Borrower under
this Agreement, the Facility LC Applications, the Notes and the other Loan
Documents and (y) each Guarantor under each Guaranty, shall remain in full force
and effect notwithstanding the addition of (x) any new
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Borrower to this Agreement, the Facility LC Applications, the Notes and the
other Loan Documents or (y) any new Guarantor.
2.25 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 Borrower,
any other entity directly or contingently liable for the obligations of the
Borrowers under this Agreement, the Notes and all other Loan Documents, arising
from the existence or performance of such Borrower's obligations under this
Agreement and the other Loan Documents.
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. YIELD PROTECTION. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation of the LC Issuer with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) subjects any Lender or any applicable Lending Installation or
the LC Issuer to any Taxes, or changes the basis of taxation
of payments (other than with respect to Excluded Taxes) to any
Lender or the LC Issuer in respect of its Eurodollar Loans,
Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation or the LC Issuer (other than
reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(iii) imposes any other condition the result of which is to increase
the cost to any Lender or any applicable Lending Installation
or the LC Issuer of making, funding or maintaining its
Eurodollar Loans, or of issuing or participating in Facility
LCs, or reduces any amount receivable by any Lender or any
applicable Lending Installation or the LC Issuer in connection
with its Eurodollar Loans, Facility LCs or participations
therein, or requires any Lender or any applicable Lending
Installation or the LC Issuer to make any payment calculated
by reference to the amount of Eurodollar Loans, Facility LCs
or participations therein held or interest
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or LC Fees received by it, by an amount deemed material by
such Lender or the LC Issuer as the case may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or the LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or the LC Issuer, as the case may be, in connection with
such Eurodollar Loans, Commitment, Facility LCs or participations therein, then,
within 15 days of demand by such Lender or the LC Issuer, as the case may be,
the Borrowers shall pay such Lender or the LC Issuer, as the case may be, such
additional amount or amounts as will compensate such Lender or the LC Issuer, as
the case may be, for such increased cost or reduction in amount received.
3.2. CHANGES IN CAPITAL ADEQUACY REGULATIONS. If a Lender or the LC
Issuer determines the amount of capital required or expected to be maintained by
such Lender or the LC Issuer, any Lending Installation of such Lender or the LC
Issuer, or any corporation controlling such Lender or the LC Issuer is increased
as a result of a Change, then, within 15 days of demand by such Lender or the LC
Issuer, the Borrowers shall pay such Lender or the LC Issuer the amount
necessary to compensate for any shortfall in the rate of return on the portion
of such increased capital which such Lender or the LC Issuer determines is
attributable to this Agreement, its Outstanding Credit Exposure or its
Commitment to make Loans and issue or participate in Facility LCs, as the case
may be, hereunder (after taking into account such Lender's or the LC Issuer's
policies as to capital adequacy). "Change" means (i) any change after the date
of this Agreement in the Risk-Based Capital Guidelines or (ii) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or the LC Issuer or any
Lending Installation or any corporation controlling any Lender or the LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3. AVAILABILITY OF TYPES OF ADVANCES. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Installation would
violate any applicable law, rule, regulation, or directive, whether or not
having the force of law, or if the Required Lenders determine that (i) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (ii) the interest rate applicable to Eurodollar Advances does not
accurately reflect the cost of making or maintaining Eurodollar Advances, then
the Administrative Agent shall suspend the availability of Eurodollar Advances
and require any affected Eurodollar
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Advances to be repaid or converted to Floating Rate Advances, subject to the
payment of any funding indemnification amounts required by Section 3.4.
3.4. FUNDING INDEMNIFICATION. If any payment of a Eurodollar Advance
occurs on a date which is not the last day of the applicable Interest Period,
whether because of acceleration, prepayment or otherwise, or a Eurodollar
Advance is not made on the date specified by the Borrowers for any reason other
than default by the Lenders, the Borrowers will indemnify each Lender for any
loss or cost incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to fund or
maintain such Eurodollar Advance.
3.5. TAXES. (i) All payments by the Borrowers to or for the account of
any Lender, the LC Issuer or the Administrative Agent hereunder or under any
Note or Facility LC Application shall be made free and clear of and without
deduction for any and all Taxes. If the Borrowers shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to any Lender,
the LC Issuer or the Administrative Agent, (a) 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 3.5) such
Lender, the LC Issuer or the Administrative Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (b) the Borrowers shall make such deductions, (c) the Borrowers shall pay
the full amount deducted to the relevant authority in accordance with applicable
law and (d) the Borrowers shall furnish to the Administrative Agent the original
copy of a receipt evidencing payment thereof within 30 days after such payment
is made.
(ii) In addition, the Borrowers hereby agree to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) The Borrowers hereby agree to indemnify Administrative Agent, the
LC Issuer and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by Administration Agent, the LC Issuer or
such Lender and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. Payments due under this
indemnification shall be made within 30 days of the date Administrative Agent,
the LC Issuer or such Lender makes demand therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of the United
States of America or a state thereof (each a "Non-U.S. Lender") agrees that it
will, not less than ten Business Days after the date of this Agreement, (i)
deliver to each of the Borrowers and the Administrative Agent two duly completed
copies of United States Internal Revenue Service Form 1001 or 4224, certifying
in either case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes, and (ii) deliver to
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each of the Borrowers and the Administrative Agent a United States Internal
Revenue Form W-8 or W-9, as the case may be, and certify that it is entitled to
an exemption from United States backup withholding tax. Each Non-U.S. Lender
further undertakes to deliver to each of the Borrowers and the Administrative
Agent (x) renewals or additional copies of such form (or any successor form) on
or before the date that such form expires or becomes obsolete, and (y) after the
occurrence of any event requiring a change in the most recent forms so delivered
by it, such additional forms or amendments thereto as may be reasonably
requested by the Borrowers or the Administrative Agent. All forms or amendments
described in the preceding sentence shall certify that such Lender is entitled
to receive payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless an event (including without
limitation any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which renders all
such forms inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such Lender
advises the Borrowers and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.
(v) For any period during which a Non-U.S. Lender has failed to provide
the Borrowers with an appropriate form pursuant to clause (iv), above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to indemnification under
this Section 3.5 with respect to Taxes imposed by the United States; provided
that, should a Non-U.S. Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a form required under clause (iv), above, the Borrowers shall take
such steps as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction of
withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrowers (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other governmental
authority of the United States or any other country or any political subdivision
thereof asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such Lender
failed to notify the Administrative Agent of a change in circumstances which
rendered its exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Administrative Agent fully for all amounts paid,
directly or indirectly, by the Administrative Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent under
this
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subsection, together with all costs and expenses related thereto (including
attorneys fees and time charges of attorneys for the Administrative Agent, which
attorneys may be employees of the Administrative Agent). The obligations of the
Lenders under this Section 3.5(vii) shall survive the payment of the Obligations
and termination of this Agreement.
3.6. LENDER STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably
possible, each Lender shall designate an alternate Lending Installation with
respect to its Eurodollar Loans to reduce any liability of the Borrowers to such
Lender under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of
Eurodollar Advances under Section 3.3, so long as such designation is not, in
the judgment of such Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrowers (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4
or 3.5. Such written statement shall set forth in reasonable detail the
calculations upon which such Lender determined such amount and shall be final,
conclusive and binding on the Borrowers in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though each Lender funded its Eurodollar
Loan through the purchase of a deposit of the type and maturity corresponding to
the deposit used as a reference in determining the Eurodollar Rate applicable to
such Loan, whether in fact that is the case or not. Unless otherwise provided
herein, the amount specified in the written statement of any Lender shall be
payable on demand after receipt by the Borrowers of such written statement. The
obligations of the Borrowers under Sections 3.1, 3.2, 3.4 and 3.5 shall survive
payment of the Obligations and termination of this Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. INITIAL CREDIT EXTENSION. The Lenders shall not be required to
make the initial Credit Extension hereunder unless (x) the Borrowers have
furnished to the Administrative Agent with sufficient copies for the Lenders of
the documents listed in subsections (i) through (vii) below; (y) the Borrowers
have furnished to the Administrative Agent the documents listed in subsections
(viii) through (xii) below; and (z) the Administrative Agent shall have received
from the Borrowers a facility fee in the amount of $125,000, which facility fee
shall be allocated by the Administrative Agent to the Lenders as follows:
$40,000 to Bank One, $35,000 to National City Bank, $25,000 to LaSalle Bank,
National Association, and $25,000 to SunTrust Bank, Central Florida, N. A.
(i) Copies, as applicable, of the articles or certificate of
incorporation or organization of each Borrower and Guarantor,
together with all amendments, and a certificate of good
standing, each certified by the appropriate governmental
officer in its jurisdiction of incorporation
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(ii) Copies, as applicable, certified by the Secretary or Assistant
Secretary of each Borrower and Guarantor, of its by-laws and
of the Board of Directors' resolutions or of resolutions or
actions of any other body authorizing the execution, delivery
and performance of the Loan Documents to which any Borrower
and Guarantor is a party and required Rate Management
Transactions or of its operating or other management agreement
and of resolutions of its members and of any other body
authorizing the execution, delivery and performance of the
Loan Documents to which such Borrower and Guarantor is a party
and required Rate Management Transactions.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each Borrower and Guarantor, which
shall identify by name and title and bear the signatures of
the Authorized Officers and any other officers of such
Borrower and Guarantor authorized to sign the Loan Documents
to which such Borrower or Guarantor is a party and documents
in connection with required Rate Management Transactions, upon
which certificate the Administrative Agent and the Lenders
shall be entitled to rely until informed of any change in
writing by such Borrower or Guarantor.
(iv) A certificate, signed by the chief financial officer of each
Borrower, stating that on the initial Credit Extension Date no
Default or Unmatured Default has occurred and is continuing.
(v) A written opinion of the Borrowers' counsel, addressed to the
Lenders in substantially the form of Exhibit A.
(vi) Any Notes requested by a Lender pursuant to Section 2.13
payable to the order of each such requesting Lender.
(vii) Such other documents as any Lender or its counsel may have
reasonably requested.
(viii) The Security Agreement, the UCC Financing Statements and other
Collateral Documents.
(ix) The insurance certificate described in Section 5.21.
(x) If the initial Credit Extension will be the issuance of a
Facility LC, a properly completed Facility LC Application.
(xi) Written money transfer instructions, in substantially the form
of Exhibit D, addressed to the Administrative Agent and signed
by an Authorized Officer, together with such other related
money transfer authorizations as the Administrative Agent may
have reasonably requested.
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(xii) Such other documents as the Administrative Agent or its
counsel may have reasonably requested.
4.2. EACH CREDIT EXTENSION. The Lenders shall not be required to make
any Credit Extension unless on the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct as of such Credit Extension Date except to
the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct on
and as of such earlier date.
(iii) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their
counsel.
Each Borrowing Notice or request for issuance of a Facility LC with
respect to each such Credit Extension shall constitute a representation and
warranty by the Borrowers that the conditions contained in Sections 4.2(i) and
(ii) have been satisfied. Any Lender may require a duly completed compliance
certificate in substantially the form of Exhibit B as a condition to making a
Credit Extension.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Lenders that:
5.1. EXISTENCE AND STANDING. Each Borrower and its Subsidiaries is a
corporation, partnership (in the case of Subsidiaries only) or limited liability
company duly and properly incorporated or organized, as the case may be, validly
existing and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or organization and
has all requisite authority to conduct its business in each jurisdiction in
which its business is conducted where the failure to have such authority would
have a Material Adverse Effect or would affect the ability of the Borrower to
enforce any of its material rights.
5.2. AUTHORIZATION AND VALIDITY. Each Borrower has the power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery
by each Borrower of the Loan Documents and the performance of its obligations
thereunder have been duly authorized by proper corporate
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proceedings, and the Loan Documents to which each Borrower is a party constitute
legal, valid and binding obligations of such Borrower enforceable against such
Borrower in accordance with their terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and
delivery by each Borrower of the Loan Documents to which it is a party, nor the
consummation of the transactions therein contemplated, nor compliance with the
provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on any Borrower or any of its
Subsidiaries or (ii) any Borrower's or any of its Subsidiary's articles or
certificate of incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating or other
management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which any Borrower or any of its
Subsidiaries is a party or is subject which would have a Material Adverse
Effect, or by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of any Borrower or a Subsidiary
pursuant to the terms of any such indenture, instrument or agreement. No order,
consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action in
respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by the Borrower or any of its Subsidiaries,
is required to be obtained by the Borrowers or any of their Subsidiaries in
connection with the execution and delivery of the Loan Documents, the borrowings
under this Agreement, the payment and performance by any Borrower of the
Obligations or the legality, validity, binding effect or enforceability of any
of the Loan Documents.
5.4. FINANCIAL STATEMENTS. The consolidated financial statements of the
Borrowers and their Subsidiaries heretofore delivered to the Lenders were
prepared in accordance with generally accepted accounting principles in effect
on the date such statements were prepared and fairly present the consolidated
financial condition and operations of the Borrowers and their Subsidiaries at
such date and the consolidated results of their operations for the period then
ended.
5.5. MATERIAL ADVERSE CHANGE. Since June 30, 1999, there has been no
change in the business, Property, foreseeable financial prospects, condition
(financial or otherwise) or results of operations of the Borrowers and their
Subsidiaries which could reasonably be expected to have a Material Adverse
Effect.
5.6. TAXES. Each Borrower and its Subsidiaries have filed all United
States federal tax returns and all other tax returns which are required to be
filed and have paid all taxes due pursuant to said returns or pursuant to any
assessment received by any Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles
and as to which no Lien exists. No tax liens have been filed and no claims are
being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrowers and
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their Subsidiaries in respect of any taxes or other governmental charges are
adequate. If any Borrower or any of its Subsidiaries is a limited liability
company, each such limited liability company qualifies for partnership tax
treatment under United States federal tax law.
5.7. LITIGATION AND CONTINGENT OBLIGATIONS. There is no litigation,
arbitration, governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or affecting any
Borrower or any of its Subsidiaries (i) in which, 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) which seeks to prevent, enjoin or delay the making of
any Credit Extensions. Other than any liability incident to any litigation,
arbitration or proceeding which could not reasonably be expected to have a
Material Adverse Effect, the Borrowers have no material contingent obligations
not provided for or disclosed in the financial statements referred to in Section
5.4.
5.8. SUBSIDIARIES. Schedule 1 contains an accurate list of all
Subsidiaries (including Subsidiaries which are Borrowers) of MPW Group as of the
date of this Agreement, setting forth their respective jurisdictions of
organization and the percentage of their respective capital stock or other
ownership interests owned by MPW Group or other Subsidiaries. All of the issued
and outstanding shares of capital stock or other ownership interests of such
Subsidiaries have been (to the extent such concepts are relevant with respect to
such ownership interests) duly authorized and issued and are fully paid and
non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer Plans do
not in the aggregate exceed $3,000,000. Each Plan complies in all material
respects with all applicable requirements of law and regulations, no Reportable
Event has occurred with respect to any Plan, neither any Borrower nor any other
member of the Controlled Group has withdrawn from any Plan or initiated steps to
do so, and no steps have been taken to reorganize or terminate any Plan.
5.10. ACCURACY OF INFORMATION. No information, exhibit or report
furnished by any Borrower or any of its Subsidiaries to the Administrative Agent
or to any Lender in connection with the negotiation of, or compliance with, the
Loan Documents contained any material misstatement of fact.
5.11. REGULATION U. Margin stock (as defined in Regulation U)
constitutes less than 25% of the value of those assets of the Borrowers and
their Subsidiaries which are subject to any limitation on sale, pledge, or other
restriction hereunder.
5.12. MATERIAL AGREEMENTS. No Borrower nor any Subsidiary is a party to
any agreement or instrument or subject to any charter or other corporate
restriction which could reasonably be expected to have a Material Adverse
Effect. No Borrower nor any Subsidiary is in default in the performance,
observance or fulfillment of any of the obligations, covenants or
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conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.13. COMPLIANCE WITH LAWS. Each Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except for any failure
to comply with any of the foregoing which could not reasonably be expected to
have a Material Adverse Effect.
5.14. OWNERSHIP OF PROPERTIES. Except as set forth on Schedule 2, on
the date of this Agreement, each Borrower and its Subsidiaries will have good
title, free of all Liens other than those permitted by Section 6.15, to all of
the Property and assets reflected in the Borrowers' and their Subsidiaries' most
recent consolidated financial statements provided to the Administrative Agent as
owned by the Borrowers and their Subsidiaries.
5.15. PLAN ASSETS; PROHIBITED TRANSACTIONS. Each Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. ss.
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Credit Extensions hereunder gives rise to a prohibited transaction within the
meaning of Section 406 of ERISA or Section 4975 of the Code.
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, which
violation would have a Material Adverse Effect.
(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, which
noncompliance would have a Material Adverse Effect.
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5.17. INVESTMENT COMPANY ACT. No Borrower nor any Subsidiary is an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18. PUBLIC UTILITY HOLDING COMPANY ACT. No Borrower nor any
Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. YEAR 2000. Each Borrower has made a full and complete assessment
of the Year 2000 Issues and has a realistic and achievable program for
remediating the Year 2000 Issues on a timely basis (the "Year 2000 Program").
Based on such assessment and on the Year 2000 Program each Borrower does not
reasonably anticipate that Year 2000 Issues will have a Material Adverse Effect.
5.20. INSURANCE. The certificate signed by the President or Chief
Financial Officer of each Borrower, that attests to the existence and adequacy
of, and summarizes, the property and casualty insurance program carried by the
Borrowers with respect to the Borrowers and their Subsidiaries and that has been
furnished by the Borrowers to the Administrative Agent, is complete and accurate
as of the date of such certificate. This summary includes the insurer's or
insurers' name(s), policy number(s), expiration date(s), amount(s) of coverage,
type(s) of coverage, exclusion(s), and deductibles. This summary also includes
similar information, and describes any reserves, relating to any self-insurance
program that is in effect.
5.21. SOLVENCY. (i) Immediately after the consummation of the
transactions to occur on the date of this Agreement and immediately following
the making of each Loan, if any, made on the date of this Agreement and after
giving effect to the application of the proceeds of such Loans, (a) the fair
value of the assets of the Borrowers and their Subsidiaries on a consolidated
basis, at a fair valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Borrowers and their Subsidiaries on a
consolidated basis; (b) the present fair saleable value of the Property of the
Borrowers and their Subsidiaries on a consolidated basis will be greater than
the amount that will be required to pay the probable liability of the Borrowers
and their Subsidiaries on a consolidated basis on their debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other
liabilities become absolute and matured; (c) the Borrowers and their
Subsidiaries on a consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) the Borrowers and their
Subsidiaries on a consolidated basis will not have unreasonably small capital
with which to conduct the businesses in which they are engaged as such
businesses are now conducted and are proposed to be conducted after the date of
this Agreement.
(ii) Each Borrower does not intend to, or to permit any of its
Subsidiaries to, and does not believe that it or any of its Subsidiaries will,
incur debts beyond its ability to pay such debts as they mature, taking into
account the timing of and amounts of cash to be received by it or any
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such Subsidiary and the timing of the amounts of cash to be payable on or in
respect of its Indebtedness or the Indebtedness of any such Subsidiary.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. FINANCIAL REPORTING. Each Borrower will maintain, for itself and
each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within 90 days after the close of each of their fiscal years,
an unqualified audit report certified by independent certified
public accountants acceptable to the Lenders, prepared in
accordance with Agreement Accounting Principles on a
consolidated basis for the Borrowers and their Subsidiaries,
including balance sheets as of the end of such period, related
profit and loss and reconciliation of surplus statements, and
a statement of cash flows, accompanied by any management
letter prepared by said accountants.
(ii) Within 45 days after the close of the first three quarterly
periods of each of their fiscal years, for the Borrowers and
their Subsidiaries, consolidated unaudited balance sheets as
at the close of each such period and consolidated profit and
loss and reconciliation of surplus statements and a statement
of cash flows for the period from the beginning of such fiscal
year to the end of such quarter, all certified by its chief
financial officer.
(iii) Together with the financial statements required under Sections
6.1(i) and (ii), a compliance certificate in substantially the
form of Exhibit B signed by the chief financial officer of
each Borrower showing the calculations necessary to determine
compliance with this Agreement and stating that no Default or
Unmatured Default exists, or if any Default or Unmatured
Default exists, stating the nature and status thereof.
(iv) As soon as possible and in any event within 10 days after any
Borrower knows that any Reportable Event has occurred with
respect to any Plan, a statement, signed by the chief
financial officer of such Borrower, describing said Reportable
Event and the action which any Borrower proposes to take with
respect thereto.
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(v) As soon as possible and in any event within 10 days after
receipt by any Borrower, a copy of (a) any notice or claim to
the effect that any Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by any
Borrower, any of its Subsidiaries, or any other Person of any
toxic or hazardous waste or substance into the environment,
and (b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by any Borrower or any of its Subsidiaries, which,
in either case, could reasonably be expected to have a
Material Adverse Effect.
(vi) Promptly upon the furnishing thereof to the shareholders of
MPW Group, copies of all financial statements, reports and
proxy statements so furnished.
(vii) Promptly upon the filing thereof, copies of all registration
statements and annual, quarterly, monthly or other regular
reports which any Borrower or any of its Subsidiaries files
with the Securities and Exchange Commission.
(viii) Such other information (including non-financial information)
as the Administrative Agent or any Lender may from time to
time reasonably request.
6.2. USE OF PROCEEDS. Each Borrower will, and will cause each
Subsidiary to, use the proceeds of the Credit Extensions for general corporate
purposes. Each Borrower will not, nor will it permit any Subsidiary to, use any
of the proceeds of the Advances to purchase or carry any "margin stock" (as
defined in Regulation U).
6.3. NOTICE OF DEFAULT. Each Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise (including, without limitation, developments with respect to Year 2000
Issues), which could reasonably be expected to have a Material Adverse Effect.
6.4. CONDUCT OF BUSINESS. Each Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and in substantially the same fields of enterprise as it is presently
conducted and do all things necessary to remain duly incorporated or organized,
validly existing and (to the extent such concept applies to such entity) in good
standing as a domestic corporation, partnership or limited liability company in
its jurisdiction of incorporation or organization, as the case may be, and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted.
6.5. TAXES. Each Borrower will, and will cause each Subsidiary to,
timely file complete and correct United States federal and applicable foreign,
state and local tax returns required by law and pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or Property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside in
accordance with Agreement Accounting Principles. At any time that any Borrower
or any of its
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Subsidiaries is organized as a limited liability company, each such limited
liability company will qualify for partnership tax treatment under United States
federal tax law.
6.6. INSURANCE. Each Borrower will, and will cause each Subsidiary to,
maintain with financially sound and reputable insurance companies insurance on
all their Property in such amounts and covering such risks as is consistent with
sound business practice, and the Borrowers will furnish to any Lender upon
request full information as to the insurance carried.
6.7. COMPLIANCE WITH LAWS. Each Borrower will, and will cause each
Subsidiary to, substantially comply with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject
including, without limitation, all Environmental Laws.
6.8. MAINTENANCE OF PROPERTIES. Each Borrower will, and will cause each
Subsidiary to, do all things necessary to maintain, preserve, protect and keep
its Property in good repair, working order and condition (ordinary wear and tear
excepted), and make all necessary and proper repairs, renewals and replacements
so that its business carried on in connection therewith may be properly
conducted at all times.
6.9. INSPECTION. Each Borrower will, and will cause each Subsidiary to,
permit the Administrative Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books and financial
records of each Borrower and each Subsidiary, to examine and make copies of the
books of accounts and other financial records of each Borrower and each
Subsidiary, and to discuss the affairs, finances and accounts of each Borrower
and each Subsidiary with, and to be advised as to the same by, their respective
officers at such reasonable times and intervals as the Administrative Agent or
any Lender may designate.
6.10. DIVIDENDS. Each Borrower will not, nor will it permit any
Subsidiary to, declare or pay any dividends or make any distributions on its
capital stock (other than dividends payable in its own capital stock or other
ownership interest) or redeem, repurchase or otherwise acquire or retire any of
its capital stock at any time outstanding, except that any Subsidiary (including
any Borrower) may declare and pay dividends or make distributions to MPW Group
or to a Wholly-Owned Subsidiary.
6.11. INDEBTEDNESS. Each Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist any Indebtedness, except:
(i) The Loans and the Reimbursement Obligations.
(ii) Indebtedness existing on the date of this Agreement and
described in Schedule 2.
(iii) Subordinated Indebtedness in an aggregate amount not exceeding
$10,000,000 at any time.
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(iv) Indebtedness in an aggregate amount not exceeding $2,500,000
at any time which is secured by purchase money Liens.
6.12. MERGER. Each Borrower will not, nor will it permit any Subsidiary
to, merge or consolidate with or into any other Person, except that a Subsidiary
(including any Borrower) may merge into another Borrower or a Wholly-Owned
Subsidiary.
6.13. SALE OF ASSETS. Each Borrower will not, nor will it permit any
Subsidiary to, lease, sell or otherwise dispose of its Property to any other
Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii) Leases, sales or other dispositions of its Property, the
proceeds of which that, together with all other Property of
the Borrowers and their Subsidiaries previously leased, sold
or disposed of (other than inventory in the ordinary course of
business) as permitted by this Section during any fiscal year
of the Borrowers, does not exceed $5,000,000; provided,
however, such leases, sales and disposition may exceed
$5,000,000 if the Borrowers make a mandatory prepayment of
Advances in an amount equal to 100% of the net proceeds in
excess of $5,000,000 realized from such leases, sales and
dispositions.
6.14. INVESTMENTS AND ACQUISITIONS. Each Borrower will not, nor will it
permit any Subsidiary to, make or suffer to exist any Investments (including
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition of any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date of this Agreement and described in
Schedule 1.
(iii) Acquisitions in amounts not exceeding annual and per
Acquisition baskets established by the Required Lenders at the
time of any release of collateral pursuant to Section 2.23;
provided, however, if the Borrowers shall be required to again
grant a lien and security interest in collateral in accordance
with such Section 2.23, no further Investments under this
paragraph (iii) shall thereafter be permitted.
(iv) Acquisitions approved by the Required Lenders.
6.15. LIENS. Each Borrower will not, nor will it permit any Subsidiary
to, create, incur, or suffer to exist any (i) Lien in, of or on the Property of
such Borrower or any of its Subsidiaries,
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or (ii) agreement with any Person (other than the Lenders) which prohibits or
restricts the granting of any such Lien of any kind in favor of the Lenders,
except:
(i) Liens for taxes, assessments or governmental charges or levies
on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law, such as carriers', warehousemen's and
mechanics' liens and other similar liens arising in the
ordinary course of business which secure payment of
obligations not more than 60 days past due or which are being
contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its
books.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries.
(v) Liens existing on the date of this Agreement and described in
Schedule 2.
(vi) Liens in favor of the Administrative Agent, for the benefit of
the Lenders, granted pursuant to any Collateral Document.
(vii) Liens securing Indebtedness permitted by Section 6.11(iv).
6.16. CAPITAL EXPENDITURES. Each Borrower will not, nor will it permit
any Subsidiary to, expend, or be committed to expend, in excess of the following
amounts for Capital Expenditures during any one fiscal year in the aggregate for
the Borrowers and their Subsidiaries: (i) $12,000,000 during fiscal year 2000;
(ii) $15,000,000 during fiscal year 2001; and (iii) $17,500,000 during any
fiscal year thereafter.
6.17. RENTALS. Each Borrower will not, nor will it permit any
Subsidiary to, create, incur or suffer to exist obligations for Rentals in
excess of $5,000,000 during any one fiscal year in the aggregate for the
Borrowers and their Subsidiaries.
6.18. YEAR 2000. Each Borrower will take and will cause each of its
Subsidiaries to take all such actions as are reasonably necessary to
successfully implement the Year 2000
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Program and to assure that Year 2000 Issues will not have a Material Adverse
Effect. At the request of the Administrative Agent or any Lender, each Borrower
will provide a description of the Year 2000 Program, together with any updates
or progress reports with respect thereto.
6.19. AFFILIATES. Each Borrower will not, and will not permit any
Subsidiary to, enter into any transaction (including, without limitation, the
purchase or sale of any Property or service) with, or make any payment or
transfer to, any Affiliate except in the ordinary course of business and
pursuant to the reasonable requirements of such Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to such Borrower
or such Subsidiary than such Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.20. SUBORDINATED INDEBTEDNESS. Each Borrower will not, and will not
permit any Subsidiary to, make any amendment or modification to the indenture,
note or other agreement evidencing or governing any Subordinated Indebtedness,
or directly or indirectly voluntarily prepay, defease or in substance defease,
purchase, redeem, retire or otherwise acquire, any Subordinated Indebtedness.
6.21. REQUIRED RATE MANAGEMENT TRANSACTIONS. If the ratio of (i)
Consolidated EBIT to (ii) Consolidated Interest Expense is less than 3.0 to 1.0,
such ratio being determined as of the end of each fiscal quarter of the
Borrowers and their Subsidiaries for the then most-recently ended four fiscal
quarters, the Borrowers, promptly after the request of the Administrative Agent,
will enter into one or more Rate Management Transactions with one or more
financial institutions providing for a fixed rate of interest on a notional
amount of at least $25,000,000 and an average weighted maturity of at least 2
years.
6.22. SALE OF ACCOUNTS. Except in the ordinary course of business for
collection, each Borrower will not, nor will it permit any Subsidiary to, sell
or otherwise dispose of any notes receivable or accounts receivable, with or
without recourse.
6.23. SALE AND LEASEBACK TRANSACTIONS AND OTHER OFF-BALANCE SHEET
LIABILITIES. Each Borrower will not, nor will it permit any Subsidiary to, enter
into or suffer to exist any (i) Sale and Leaseback Transaction or (ii) any other
transaction pursuant to which it incurs or has incurred Off-Balance Sheet
Liabilities, except for Rate Management Obligations permitted to be incurred
under the terms of Section 6.21.
6.24. LETTERS OF CREDIT. Other than for Letters of Credit issued
pursuant to the terms hereof, each Borrower will not, nor will it permit any
Subsidiary to, apply for or become liable upon or in respect of any Letter of
Credit other than Facility LCs.
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6.25. FINANCIAL COVENANTS.
6.25.1. INTEREST COVERAGE RATIO. The Borrowers will not permit
the ratio, determined as of the end of each of their fiscal quarters
for the then most-recently ended four fiscal quarters, of (i)
Consolidated EBIT to (ii) Consolidated Interest Expense to be less than
2.5 to 1.0.
6.25.2. LEVERAGE RATIO. The Borrowers will not permit the
ratio, determined as of the end of each of its fiscal quarters, of (i)
Consolidated Funded Indebtedness to (ii) Consolidated EBITDA for the
then most-recently ended four fiscal quarters to be greater than (x)
3.5 to 1.0 through September 29, 2000; and (y) 3.0 to 1.0 thereafter.
6.25.3. MINIMUM NET WORTH. The Borrowers will at all times
maintain Consolidated Net Worth of not less than the sum of (i) 85% of
Consolidated Net Worth as at September 30, 1999, plus (ii) (x) 50% of
Consolidated Net Income earned in each fiscal quarter beginning with
the quarter ending December 31, 1999 (without deduction for losses) and
(y) 100% of the net proceeds from issuance and sale of equity
securities of any Borrower or any Subsidiary.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Any representation or warranty made or deemed made by or on
behalf of any Borrower or any of its Subsidiaries to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Credit
Extension, or any certificate or information delivered in connection with this
Agreement or any other Loan Document shall be materially false on the date as of
which made.
7.2. Nonpayment of principal of any Loan when due, nonpayment of any
Reimbursement Obligation within one Business Day after the same becomes due, or
nonpayment of interest upon any Loan or of any commitment fee, LC Fee or other
obligations under any of the Loan Documents within 10 days after the same
becomes due.
7.3. The breach by any Borrower of any of the terms or provisions of
Article VI .
7.4. The breach by any Borrower (other than a breach which constitutes
a Default under another Section of this Article VII) of any of the terms or
provisions of this Agreement which is not remedied within 30 days after written
notice from the Administrative Agent or any Lender.
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7.5. Failure of any Borrower or any of its Subsidiaries or any
Guarantor to pay when due any Indebtedness aggregating in excess of $1,000,000
("Material Indebtedness"); or the default by any Borrower or any of its
Subsidiaries or any Guarantor in the performance of any term, provision or
condition contained in any agreement under which any such Material Indebtedness
was created or is governed, or any other event shall occur or condition exist,
the effect of which default or event is to cause, or to permit the holder or
holders of such Material Indebtedness to cause, such Material Indebtedness to
become due prior to its stated maturity; or any Material Indebtedness of any
Borrower or any of its Subsidiaries or any Guarantor shall be declared to be due
and payable or required to be prepaid or repurchased (other than by a regularly
scheduled payment) prior to the stated maturity thereof; or any Borrower or any
of its Subsidiaries or any Guarantor shall not pay, or admit in writing its
inability to pay, its debts generally as they become due.
7.6. Any Borrower or any of its Subsidiaries or any Guarantor shall
(i) have an order for relief entered with respect to it under the Federal
bankruptcy laws as now or hereafter in effect, (ii) make an assignment for the
benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the
appointment of a receiver, custodian, trustee, examiner, liquidator or similar
official for it or any Substantial Portion of its Property, (iv) institute any
proceeding seeking an order for relief under the Federal bankruptcy laws as now
or hereafter in effect or seeking to adjudicate it a bankrupt or insolvent, or
seeking dissolution, winding up, liquidation, reorganization, arrangement,
adjustment or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or fail to file an
answer or other pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate or partnership action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fail
to contest in good faith any appointment or proceeding described in Section 7.7.
7.7. Without the application, approval or consent of any Borrower or
any of its Subsidiaries or any Guarantor, a receiver, trustee, examiner,
liquidator or similar official shall be appointed for any Borrower or any of its
Subsidiaries or any Guarantor or any Substantial Portion of its Property, or a
proceeding described in Section 7.6(iv) shall be instituted against any Borrower
or any of its Subsidiaries or any Guarantor and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of 30 consecutive days.
7.8. Any court, government or governmental agency shall condemn, seize
or otherwise appropriate, or take custody or control of, all or any portion of
the Property of any Borrower and/or its Subsidiaries and/or any Guarantor which,
when taken together with all other Property of the Borrowers and their
Subsidiaries and the Guarantors so condemned, seized, appropriated, or taken
custody or control of, during the twelve-month period ending with the month in
which any such action occurs, constitutes a Substantial Portion.
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7.9. Any Borrower or any of its Subsidiaries shall fail within 30 days
to pay, bond or otherwise discharge one or more (i) judgments or orders for the
payment of money in excess of $3,000,000 (or the equivalent thereof in
currencies other than U.S. Dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10. The Unfunded Liabilities of all Single Employer Plans shall
exceed in the aggregate $3,000,000 or any Reportable Event shall occur in
connection with any Plan.
7.11. Any Borrower or any of its Subsidiaries shall (i) be the subject
of any proceeding or investigation pertaining to the release by any Borrower,
any of its Subsidiaries or any other Person of any toxic or hazardous waste or
substance into the environment, or (ii) violate any Environmental Law, which, in
the case of an event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect.
7.12. Any Change in Control shall occur.
7.13. The occurrence of any "default", as defined in any Loan Document
(other than this Agreement) or the breach of any of the terms or provisions of
any Loan Document (other than this Agreement), which default or breach continues
beyond any period of grace therein provided.
7.14. Nonpayment by any Borrower of any Rate Management Obligation when
due or the breach by any Borrower of any term, provision or condition contained
in any Rate Management Transaction.
7.15. Any Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Guaranty, or any Guarantor shall fail to comply with any
of the terms or provisions of any Guaranty to which it is a party, or any
Guarantor shall deny that it has any further liability under any Guaranty to
which it is a party, or shall give notice to such effect.
7.16. Any Collateral Document shall for any reason fail to create a
valid and perfected first priority security interest in any collateral purported
to be covered thereby, except as permitted by the terms of any Loan Document, or
any Collateral Document shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of any Collateral Document, or any Borrower shall fail to
comply with any of the terms or provisions of any Collateral Document.
7.17. The representations and warranties set forth in Section 5.15
("Plan Assets; Prohibited Transactions") shall at any time not be true and
correct.
7.18. Any Borrower or any Subsidiary shall fail to pay when due any
Operating Lease Obligation or obligation under a Sale and Leaseback Transaction.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION; FACILITY LC COLLATERAL ACCOUNT. (i) If any Default
described in Section 7.6 or 7.7 occurs with respect to any Borrower, the
obligations of the Lenders to make Loans hereunder and the obligation and power
of the LC Issuer to issue Facility LCs shall automatically terminate and the
Obligations shall immediately become due and payable without any election or
action on the part of the Administrative Agent, the LC Issuer or any Lender and
the Borrowers will be and become thereby unconditionally obligated, without any
further notice, act or demand, to pay to the Administrative Agent an amount in
immediately available funds, which funds shall be held in the Facility LC
Collateral Account, equal to the difference of (x) the amount of LC Obligations
at such time, less (y) the amount on deposit in the Facility LC Collateral
Account at such time which is free and clear of all rights and claims of third
parties and has not been applied against the Obligations (such difference, the
"Collateral Shortfall Amount"). If any other Default occurs, the Required
Lenders (or the Administrative Agent with the consent of the Required Lenders)
(a) may terminate or suspend the obligations of the Lenders to make Loans
hereunder and the obligation and power of the LC Issuer to issue Facility LCs,
or declare the Obligations to be due and payable, or both, whereupon the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrowers hereby
expressly waive, and (b) upon notice to the Borrowers and in addition to the
continuing right to demand payment of all amounts payable under this Agreement,
make demand on the Borrowers to pay, and the Borrowers will, forthwith upon such
demand and without any further notice or act, pay to the Administrative Agent
the Collateral Shortfall Amount, which funds shall be deposited in the Facility
LC Collateral Account.
(ii) If at any time while any Default is continuing, the Administrative
Agent determines that the Collateral Shortfall Amount at such time is greater
than zero, the Administrative Agent may make demand on the Borrowers to pay, and
the Borrowers will, forthwith upon such demand and without any further notice or
act, pay to the Administrative Agent the Collateral Shortfall Amount, which
funds shall be deposited in the Facility LC Account.
(iii) The Administrative Agent may at any time or from time to time
after funds are deposited in the Facility LC Collateral Account, apply such
funds to the payment of the Obligations and any other amounts as shall from time
to time have become due and payable by the Borrowers to the Lenders or the LC
Issuer under the Loan Documents.
(iv) At any time while any Default is continuing, neither any Borrower
nor any Person claiming on behalf of or through any Borrower shall have any
right to withdraw any of the funds held in the Facility LC Collateral Account.
After all of the Obligations have been indefeasibly paid in full and the
Aggregate Commitment has been terminated, any funds remaining in the
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Facility LC Collateral Account shall be returned by the Administrative Agent to
the Borrowers or paid to whomever may be legally entitled thereto at such time.
(v) If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans and
the obligation and power of the LC Issuer to issue Facility LCs hereunder as a
result of any Default (other than any Default as described in Section 7.6 or 7.7
with respect to any Borrower) and before any judgment or decree for the payment
of the Obligations due shall have been obtained or entered, the Required Lenders
(in their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrowers, rescind and annul such acceleration and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this Article VIII, the
Required Lenders (or the Administrative Agent with the consent in writing of the
Required Lenders) and the Borrowers may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrowers
hereunder or waiving any Default hereunder; provided, however, that no such
supplemental agreement shall, without the consent of all of the Lenders:
(i) Extend the final maturity of any Loan, or extend the expiry
date of any Facility LC to a date after the Facility
Termination Date or forgive all or any portion of the
principal amount thereof or any Reimbursement Obligation
related thereto, or reduce the rate or extend the time of
payment of interest or fees thereon or Reimbursement
Obligations related thereto.
(ii) Reduce the percentage specified in the definition of Required
Lenders.
(iii) Extend the Facility Termination Date, or reduce the amount or
extend the payment date for, the mandatory payments required
under Section 2.2, or increase the amount of the Aggregate
Commitment, the Commitment of any Lender hereunder or the
commitment to issue Facility LCs, or permit the Borrowers to
assign their rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Except as provided in the Loan Documents, release more than a
Substantial Portion of the Property of the Borrowers from the
Liens in favor of the Administrative Agent granted by the
Collateral Documents.
No amendment of any provision of this Agreement relating to the Administrative
Agent shall be effective without the written consent of the Administrative
Agent, and no amendment of any provision relating to the LC Issuer shall be
effective without the written consent of the LC Issuer. The Administrative Agent
may waive payment of the fee required under Section 12.3.2 without obtaining the
consent of any other party to this Agreement.
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8.3. PRESERVATION OF RIGHTS. No delay or omission of the Lenders, the
LC Issuer or the Administrative Agent to exercise any right under the Loan
Documents shall impair such right or be construed to be a waiver of any Default
or an acquiescence therein, and the making of a Credit Extension notwithstanding
the existence of a Default or the inability of the Borrowers to satisfy the
conditions precedent to such Credit Extension shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any other right,
and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by, or consented to in writing by, the Lenders required pursuant to
Section 8.2, and then only to the extent in such writing specifically set forth.
All remedies contained in the Loan Documents or by law afforded shall be
cumulative and all shall be available to the Administrative Agent, the LC Issuer
and the Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and warranties of
the Borrowers contained in this Agreement shall survive the making of the Credit
Extensions herein contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this Agreement to
the contrary notwithstanding, neither the LC Issuer nor any Lender shall be
obligated to extend credit to the Borrowers in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. ENTIRE AGREEMENT. The Loan Documents embody the entire agreement
and understanding among the Borrowers, the Agents, the LC Issuer and the Lenders
and supersede all prior agreements and understandings among the Borrowers, the
Agents, the LC Issuer and the Lenders relating to the subject matter thereof
other than the fee letter described in Section 10.13.
9.5. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other (except to the extent to which the
Administrative Agent is authorized to act as such). The failure of any Lender to
perform any of its obligations hereunder shall not relieve any other Lender from
any of its obligations hereunder. This Agreement shall not be construed so as to
confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns, provided, however, that
the parties hereto expressly agree that
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the Arranger shall enjoy the benefits of the provisions of Sections 9.6, 9.10
and 10.11 to the extent specifically set forth therein and shall have the right
to enforce such provisions on its own behalf and in its own name to the same
extent as if it were a party to this Agreement.
9.6. EXPENSES; INDEMNIFICATION. (i) The Borrowers shall reimburse the
Administrative Agent and the Arranger for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Administrative Agent, which attorneys may be employees of the
Administrative Agent) paid or incurred by the Administrative Agent or the
Arranger in connection with the preparation, negotiation, execution, delivery,
syndication, review, amendment, modification, and administration of the Loan
Documents. The Borrowers also agree to reimburse the Administrative Agent, the
Arranger, the LC Issuer and the Lenders for any costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' fees and time charges of
attorneys for the Administrative Agent, the Arranger, the LC Issuer and the
Lenders, which attorneys may be employees of the Administrative Agent, the
Arranger, the LC Issuer or the Lenders) paid or incurred by the Administrative
Agent, the Arranger, the LC Issuer or any Lender in connection with the
collection and enforcement of the Loan Documents. Expenses being reimbursed by
the Borrowers under this Section include, without limitation, the cost and
expense of obtaining an appraisal of each parcel of real property or interest in
real property described in the relevant Collateral Documents, which appraisal
shall be in conformity with the applicable requirements of any law or any
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law), or any interpretation thereof, including, without
limitation, the provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, reformed or otherwise modified
from time to time, and any rules promulgated to implement such provisions and
costs and expenses incurred in connection with the Reports described in the
following sentence. The Borrowers acknowledge that from time to time Bank One
may prepare and may distribute to the Lenders (but shall have no obligation or
duty to prepare or to distribute to the Lenders) certain audit reports (the
"Reports") pertaining to the Borrowers' assets for internal use by Bank One from
information furnished to it by or on behalf of the Borrowers, after Bank One has
exercised its rights of inspection pursuant to this Agreement.
(ii) The Borrowers hereby further agree to indemnify the Administrative
Agent, the Arranger, the LC Issuer and each Lender, their respective affiliates,
and each of their directors, officers and employees against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor whether or not
the Administrative Agent, the Arranger, the LC Issuer any Lender or any
affiliate is a party thereto) which any of them may pay or incur arising out of
or relating to this Agreement, the other Loan Documents, the transactions
contemplated hereby or the direct or indirect application or proposed
application of the proceeds of any Credit Extension hereunder except to the
extent that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification or any such party not being Year
2000 Compliant. The obligations of the Borrowers under this Section 9.6 shall
survive the termination of this Agreement.
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9.7. NUMBERS OF DOCUMENTS. All statements, notices, closing documents,
and requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.8. ACCOUNTING. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles, except that any calculation or determination which is to be made on
a consolidated basis shall be made for the Borrowers and all their Subsidiaries,
including those Subsidiaries, if any, which are unconsolidated on the Borrower's
audited financial statements.
9.9. SEVERABILITY OF PROVISIONS. Any provision in any Loan Document
that is held to be inoperative, unenforceable, or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or invalid
without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. NONLIABILITY OF LENDERS. The relationship between the Borrowers
on the one hand and the Lenders, the LC Issuer and the Administrative Agent on
the other hand shall be solely that of borrower and lender. Neither the
Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have any
fiduciary responsibilities to the Borrowers. Neither the Administrative Agent,
the Arranger, the LC Issuer nor any Lender undertakes any responsibility to the
Borrowers to review or inform the Borrowers of any matter in connection with any
phase of the Borrowers' business or operations. The Borrowers agree that neither
the Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have
liability to the Borrowers (whether sounding in tort, contract or otherwise) for
losses suffered by any Borrower in connection with, arising out of, or in any
way related to, the transactions contemplated and the relationship established
by the Loan Documents, or any act, omission or event occurring in connection
therewith, unless it is determined in a final non-appealable judgment by a court
of competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the party from which recovery is sought. Neither the
Administrative Agent, the Arranger, the LC Issuer nor any Lender shall have any
liability with respect to, and the Borrowers hereby waive, release and agree not
to sue for, any special, indirect or consequential damages suffered by any
Borrower in connection with, arising out of, or in any way related to the Loan
Documents or the transactions contemplated thereby.
9.11. CONFIDENTIALITY. Each Lender agrees to hold any confidential
information which it may receive from the Borrowers pursuant to this Agreement
in confidence, except for disclosure (i) to its Affiliates and to other Lenders
and their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee, (iii) to regulatory
officials, (iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's direct or
indirect contractual counterparties in swap agreements or to
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legal counsel, accountants and other professional advisors to such
counterparties, and (vii) permitted by Section 12.4.
9.12. NONRELIANCE. Each Lender hereby represents that it is not relying
on or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Credit
Extensions provided for herein.
9.13. DISCLOSURE. Each Borrower and each Lender hereby (i) acknowledge
and agree that Bank One and/or its Affiliates from time to time may hold
investments in, make other loans to or have other relationships with any
Borrower and its Affiliates, and (ii) waive any liability of Bank One or such
Affiliate of Bank One to any Borrower or any Lender, respectively, arising out
of or resulting from such investments, loans or relationships other than
liabilities arising out of the gross negligence or willful misconduct of Bank
One or its Affiliates.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1. APPOINTMENT; NATURE OF RELATIONSHIP. Bank One, NA is hereby
appointed by each of the Lenders as its contractual representative (herein
referred to as the "Administrative Agent") hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes the Administrative
Agent to act as the contractual representative of such Lender with the rights
and duties expressly set forth herein and in the other Loan Documents. The
Administrative Agent agrees to act as such contractual representative upon the
express conditions contained in this Article X. Notwithstanding the use of the
defined term "Administrative Agent," it is expressly understood and agreed that
the Administrative Agent shall not have any fiduciary responsibilities to any
Lender by reason of this Agreement or any other Loan Document and that the
Administrative Agent is merely acting as the contractual representative of the
Lenders with only those duties as are expressly set forth in this Agreement and
the other Loan Documents. In its capacity as the Lenders' contractual
representative, the Administrative Agent (i) does not hereby assume any
fiduciary duties to any of the Lenders, (ii) is a "representative" of the
Lenders within the meaning of Section 9-105 of the Uniform Commercial Code and
(iii) is acting as an independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the other Loan
Documents. Each of the Lenders hereby agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Lender hereby waives.
10.2. POWERS. The Administrative Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Administrative Agent by the terms of each thereof, together with such powers as
are reasonably incidental thereto. The Administrative Agent shall have no
implied duties to the Lenders, or any obligation to the
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Lenders to take any action thereunder except any action specifically provided by
the Loan Documents to be taken by the Administrative Agent.
10.3. GENERAL IMMUNITY. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be liable to any Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
10.4. NO RESPONSIBILITY FOR LOANS, RECITALS, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into, or verify
(a) any statement, warranty or representation made in connection with any Loan
Document or any borrowing hereunder; (b) the performance or observance of any of
the covenants or agreements of any obligor under any Loan Document, including,
without limitation, any agreement by an obligor to furnish information directly
to each Lender; (c) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered solely to the Administrative
Agent; (d) the existence or possible existence of any Default or Unmatured
Default; (e) the validity, enforceability, effectiveness, sufficiency or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith; (f) the value, sufficiency, creation, perfection or
priority of any Lien in any collateral security; or (g) the financial condition
of any Borrower or any guarantor of any of the Obligations or of any of the
Borrowers' or any such guarantor's respective Subsidiaries. The Administrative
Agent shall have no duty to disclose to the Lenders information that is not
required to be furnished by the Borrowers to the Administrative Agent at such
time, but is voluntarily furnished by any Borrower to the Administrative Agent
(either in its capacity as Administrative Agent or in its individual capacity).
10.5. ACTION ON INSTRUCTIONS OF LENDERS. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting,
hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders or, with respect to those actions
which require the consent of all Lenders as set forth in Section 8.2, the
written instructions signed by all Lenders, and such instructions and any action
taken or failure to act pursuant thereto shall be binding on all of the Lenders.
The Lenders hereby acknowledge that the Administrative Agent shall be under no
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement or any other Loan Document unless it shall be
requested in writing to do so by the Required Lenders. The Administrative Agent
shall be fully justified in failing or refusing to take any action hereunder and
under any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative Agent may
execute any of its duties as Administrative Agent hereunder and under any other
Loan Document by or
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through employees, agents, and attorneys-in-fact and shall not be answerable to
the Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. The Administrative Agent shall be entitled
to advice of counsel concerning the contractual arrangement between the
Administrative Agent and the Lenders and all matters pertaining to the
Administrative Agent's duties hereunder and under any other Loan Document.
10.7. RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document believed by it to be genuine and correct
and to have been signed or sent by the proper person or persons, and, in respect
to legal matters, upon the opinion of counsel selected by the Administrative
Agent, which counsel may be employees of the Administrative Agent.
10.8. ADMINISTRATIVE AGENT'S REIMBURSEMENT AND INDEMNIFICATION. The
Lenders agree to reimburse and indemnify the Administrative Agent ratably in
proportion to their respective Commitments (or, if the Commitments have been
terminated, in proportion to their Commitments immediately prior to such
termination) (i) for any amounts not reimbursed by the Borrowers for which the
Administrative Agent is entitled to reimbursement by the Borrowers under the
Loan Documents, (ii) for any other expenses incurred by the Administrative Agent
on behalf of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents (including,
without limitation, for any expenses incurred by the Administrative Agent in
connection with any dispute between the Administrative Agent and any Lender or
between two or more of the Lenders) and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby (including,
without limitation, for any such amounts incurred by or asserted against the
Administrative Agent in connection with any dispute between the Administrative
Agent and any Lender or between two or more of the Lenders), or the enforcement
of any of the terms of the Loan Documents or of any such other documents,
provided that (i) no Lender shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final non-appealable judgment by a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Administrative Agent and (ii) any indemnification
required pursuant to Section 3.5(vii) shall, notwithstanding the provisions of
this Section 10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this Section 10.8 shall
survive payment of the Obligations and termination of this Agreement.
10.9. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Administrative Agent has received written notice
from a Lender or a Borrower referring to this Agreement describing such Default
or Unmatured Default and stating that such notice is a "notice of default". In
the event that the Administrative Agent receives such a notice, the
Administrative Agent shall give prompt notice thereof to the Lenders.
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10.10. RIGHTS AS A LENDER. In the event the Administrative Agent is a
Lender, the Administrative Agent shall have the same rights and powers hereunder
and under any other Loan Document with respect to its Commitment and its Loans
as any Lender and may exercise the same as though it were not the Administrative
Agent, and the term "Lender" or "Lenders" shall, at any time when the
Administrative Agent is a Lender, unless the context otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent and its Affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with any
Borrower or any of its Subsidiaries in which such Borrower or such Subsidiary is
not restricted hereby from engaging with any other Person.
10.11. LENDER CREDIT DECISION. Each Lender acknowledges that it has,
independently and without reliance upon the Administrative Agent, the Arranger
or any other Lender and based on the financial statements prepared by the
Borrowers and such other documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement and the
other Loan Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Administrative Agent, the Arranger or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
10.12. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign at any time by giving written notice thereof to the Lenders and the
Borrowers, such resignation to be effective upon the appointment of a successor
Administrative Agent or, if no successor Administrative Agent has been
appointed, forty-five days after the resigning Administrative Agent gives notice
of its intention to resign. The Administrative Agent may be removed at any time
with or without cause by written notice received by the Administrative Agent
from the Required Lenders, such removal to be effective on the date specified by
the Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint, on behalf of the Borrowers and the Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders within thirty days after the resigning
Administrative Agent's giving notice of its intention to resign, then the
resigning Administrative Agent may appoint, on behalf of the Borrowers and the
Lenders, a successor Administrative Agent. Notwithstanding the previous
sentence, the Administrative Agent may at any time without the consent of any
Borrower or any Lender, appoint any of its Affiliates which is a commercial bank
as a successor Administrative Agent hereunder. If the Administrative Agent has
resigned or been removed and no successor Administrative Agent has been
appointed, the Lenders may perform all the duties of the Administrative Agent
hereunder and the Borrowers shall make all payments in respect of the
Obligations to the applicable Lender and for all other purposes shall deal
directly with the Lenders. No successor Administrative Agent shall be deemed to
be appointed hereunder until such successor Administrative Agent has accepted
the appointment. Any such successor Administrative Agent shall be a commercial
bank having capital and retained earnings of at least $100,000,000. Upon the
acceptance of any
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appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the resigning or
removed Administrative Agent. Upon the effectiveness of the resignation or
removal of the Administrative Agent, the resigning or removed Administrative
Agent shall be discharged from its duties and obligations hereunder and under
the Loan Documents. After the effectiveness of the resignation or removal of an
Administrative Agent, the provisions of this Article X shall continue in effect
for the benefit of such Administrative Agent in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent
hereunder and under the other Loan Documents. In the event that there is a
successor to the Administrative Agent by merger, or the Administrative Agent
assigns its duties and obligations to an Affiliate pursuant to this Section
10.12, then the term "Corporate Base Rate" as used in this Agreement shall mean
the prime rate, base rate or other analogous rate of the new Administrative
Agent.
10.13. ADMINISTRATIVE AGENT'S FEE. The Borrowers agree to pay to the
Administrative Agent and the Documentation Agent, for their own respective
account, the fees agreed to by the Borrowers and the Administrative Agent and
the Documentation Agent pursuant to that certain letter agreement dated August
23, 1999, or as otherwise agreed from time to time.
10.14. DELEGATION TO AFFILIATES. The Borrowers and the Lenders agree
that the Administrative Agent may delegate any of its duties under this
Agreement to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver and other protective provisions to which the
Administrative Agent is entitled under Articles IX and X.
10.15. EXECUTION OF COLLATERAL DOCUMENTS. The Lenders hereby empower
and authorize the Administrative Agent to execute and deliver to the Borrowers
on their behalf the Collateral Documents and all related financing statements
and any financing statements, agreements, documents or instruments as shall be
necessary or appropriate to effect the purposes of the Collateral Documents.
10.16. COLLATERAL RELEASES. The Lenders hereby empower and authorize
the Administrative Agent to execute and deliver to the Borrowers on their behalf
any agreements, documents or instruments as shall be necessary or appropriate to
effect any releases of collateral which shall be permitted by the terms hereof
or of any other Loan Document or which shall otherwise have been approved by the
Required Lenders (or, if required by the terms of Section 8.2, all of the
Lenders) in writing.
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ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of, any rights of
the Lenders under applicable law, if any Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of any Borrower may
be offset and applied toward the payment of the Secured Obligations owing to
such Lender, whether or not the Secured Obligations, or any part hereof, shall
then be due.
11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or otherwise,
has payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding Credit Exposure held by the
other Lenders so that after such purchase each Lender will hold its Pro Rata
Share of the Aggregate Outstanding Credit Exposure. If any Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Lender agrees, promptly upon demand, to
take such action necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their respective Pro Rata Shares of the
Aggregate Outstanding Credit Exposure. In case any such payment is disturbed by
legal process, or otherwise, appropriate further adjustments shall be made.
If an amount to be setoff is to be applied to Indebtedness of the
Borrowers to a Lender other than Indebtedness comprised of the Outstanding
Credit Exposure of such Lender, such amount shall be applied ratably to such
other Indebtedness and to the Indebtedness comprised of such Outstanding Credit
Exposure.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrowers and
the Lenders and their respective successors and assigns, except that (i) each
Borrower shall not have the right to assign its rights or obligations under the
Loan Documents and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1 relates only to absolute assignments and does not prohibit
assignments creating
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security interests, including, without limitation, any pledge or assignment by
any Lender of all or any portion of its rights under this Agreement and any Note
to a Federal Reserve Bank; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 12.3;
provided, however, that the Administrative Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the owner of the
rights to any Loan (whether or not a Note has been issued in evidence thereof),
shall be conclusive and binding on any subsequent holder or assignee of the
rights to such Loan.
12.2. PARTICIPATIONS.
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Outstanding Credit
Exposure of such Lender, any Note held by such Lender, any Commitment
of such Lender or any other interest of such Lender under the Loan
Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan
Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations, such Lender shall remain the owner of its Outstanding
Credit Exposure and the holder of any Note issued to it in evidence
thereof for all purposes under the Loan Documents, all amounts payable
by the Borrowers under this Agreement shall be determined as if such
Lender had not sold such participating interests, and the Borrowers and
the Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Credit
Extension or Commitment in which such Participant has an interest which
forgives principal, interest, fees or any Reimbursement Obligation or
reduces the interest rate or fees payable with respect to any such
Credit Extension or Commitment, extends the Facility Termination Date,
postpones any date fixed for any regularly-scheduled payment of
principal of, or interest on, any Loan in which such Participant has an
interest, or any regularly-scheduled payment of fees on any such Credit
Extension or Commitment, releases any guarantor of any such Credit
Extension or releases any collateral held in the Facility LC Collateral
Account (except in accordance with the terms
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hereof) or all or substantially all of any other collateral, if any,
securing any such Credit Extension.
12.2.3. BENEFIT OF SETOFF. The Borrowers agree that each
Participant shall be deemed to have the right of setoff provided in
Section 11.1 in respect of its participating interest in amounts owing
under the Loan Documents to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the
Loan Documents, provided that each Lender shall retain the right of
setoff provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The Lenders agree to
share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each
Lender, any amount received pursuant to the exercise of its right of
setoff, such amounts to be shared in accordance with Section 11.2 as if
each Participant were a Lender.
12.3. ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities ("Purchasers") all
or any part of its rights and obligations under the Loan Documents.
Such assignment shall be substantially in the form of Exhibit C or in
such other form as may be agreed to by the parties thereto. The consent
of the Borrowers and the Administrative Agent shall be required prior
to an assignment becoming effective with respect to a Purchaser which
is not a Lender or an Affiliate thereof; provided, however, that if a
Default has occurred and is continuing, the consent of the Borrowers
shall not be required. Such consent shall not be unreasonably withheld
or delayed. Each such assignment with respect to a Purchaser which is
not a Lender or an Affiliate thereof shall (unless each of the
Borrowers and the Administrative Agent otherwise consents) be in an
amount not less than the lesser of (i) $5,000,000 or (ii) the remaining
amount of the assigning Lender's Commitment (calculated as at the date
of such assignment) or outstanding Loans (if the applicable Commitment
has been terminated).
12.3.2. EFFECT; EFFECTIVE DATE. Upon (i) delivery to the
Administrative Agent of an assignment, together with any consents
required by Section 12.3.1, and (ii) payment of a $3,500 fee to the
Administrative Agent for processing such assignment (unless such fee is
waived by the Administrative Agent), such assignment shall become
effective on the effective date specified in such assignment. The
assignment shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the purchase of the
Commitment and Outstanding Credit Exposure under the applicable
assignment agreement constitutes "plan assets" as defined under ERISA
and that the rights and interests of the Purchaser in and under the
Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all
purposes be a Lender party to this Agreement and any other Loan
Document executed by or on behalf of the Lenders and shall have all the
rights and obligations of a Lender under the Loan Documents, to the
same extent as if it were an original party
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hereto, and no further consent or action by the Borrowers, the Lenders
or the Administrative Agent shall be required to release the transferor
Lender with respect to the percentage of the Aggregate Commitment and
Outstanding Credit Exposure assigned to such Purchaser. Upon the
consummation of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Administrative Agent and the
Borrowers shall, if the transferor Lender or the Purchaser desires that
its Loans be evidenced by Notes, make appropriate arrangements so that
new Notes or, as appropriate, replacement Notes are issued to such
transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts
reflecting their respective Commitments, as adjusted pursuant to such
assignment.
12.4. DISSEMINATION OF INFORMATION. The Borrower authorize each Lender
to disclose to any Participant or Purchaser or any other Person acquiring an
interest in the Loan Documents by operation of law (each a "Transferee") and any
prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrowers and their Subsidiaries,
including without limitation any information contained in any Reports; provided
that each Transferee and prospective Transferee agrees to be bound by Section
9.11 of this Agreement.
12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. NOTICES. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrowers or the Administrative Agent, at its address or
facsimile number set forth on the signature pages hereof, (y) in the case of any
Lender, at its address or facsimile number set forth below its signature hereto
or (z) in the case of any party, at such other address or facsimile number as
such party may hereafter specify for the purpose by notice to the Administrative
Agent and the Borrowers in accordance with the provisions of this Section 13.1.
Each such notice, request or other communication shall be effective (i) if given
by facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (ii) if given by mail, 72
hours after such communication is deposited in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered (or, in the case of electronic transmission, received) at the
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address specified in this Section; provided that notices to the Administrative
Agent under Article II shall not be effective until received.
13.2. CHANGE OF ADDRESS. Any Borrower, the Administrative Agent and any
Lender may each change the address for service of notice upon it by a notice in
writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrowers, the
Agents, the LC Issuer and the Lenders and each party has notified the
Administrative Agent by facsimile transmission or telephone that it has taken
such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (BUT WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE
STATE OF OHIO, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. EACH BORROWER HEREBY IRREVOCABLY SUBMITS
TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR OHIO STATE
COURT SITTING IN COLUMBUS, OHIO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO ANY LOAN DOCUMENTS AND EACH BORROWER HEREBY IRREVOCABLY AGREES THAT
ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER
HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A
COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT
THE RIGHT OF THE ADMINISTRATIVE AGENT, THE LC ISSUER OR ANY LENDER TO BRING
PROCEEDINGS AGAINST ANY BORROWER IN THE COURTS OF ANY OTHER JURISDICTION. ANY
JUDICIAL PROCEEDING BY ANY BORROWER AGAINST THE ADMINISTRATIVE AGENT, THE LC
ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, THE LC ISSUER
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OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN
A COURT IN COLUMBUS, OHIO.
15.3. WAIVER OF JURY TRIAL. EACH BORROWER, THE ADMINISTRATIVE AGENT,
THE DOCUMENTATION AGENT, THE LC ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
[Balance of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the Borrowers, the Lenders, the LC Issuer, the
Administrative Agent and the Documentation Agent have executed this Agreement as
of the date first above written.
BORROWERS:
MPW Industrial Services Group, Inc.
By: /s/ Daniel P. Buettin
_______________________
Daniel P. Buettin, Vice President
and Chief Financial Officer
Aquatech Environmental, Inc.
By: /s/ Peter G. Schumacher
_____________________
Peter G. Schumacher, Vice
President and Treasurer
Each of the Other Borrowers Listed
on the Schedule of Subsidiary Borrowers
By: /s/ Daniel P. Buettin
_______________________
Daniel P. Buettin, Vice President
and Chief Financial Officer
Address for all Borrowers:
9711 Lancaster Road, S. E.
Hebron, OH 43025
Attention: Daniel P. Buettin, Vice
President and Chief Financial
Officer
Telephone: (740) 927-8790
FAX: (740) 928-3309
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COMMITMENTS
$40, 000,000.00 BANK ONE, NA,
Individually and as LC Issuer and
Administrative Agent
By: /s/ Thomas E. Redmond
______________________
Title: Managing Director
_______________________
100 East Broad Street, 7th Floor
Columbus, OH 43215
Attention: Thomas E. Redmond,
Vice President
Telephone: (614) 248-5540
FAX: (614) 248-5518
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$35,000,000.00 NATIONAL CITY BANK,
Individually and as Documentation Agent
By: /s/ Brian T. Strayton
______________________
Title: Vice President
__________________________
155 East Broad Street
Columbus, OH 43251-0034
Attention: Brian T. Strayton,
Vice President
Telephone: (614) 463-8386
FAX: (614) 463-8572
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$12,500,000.00 LASALLE BANK, NATIONAL ASSOCIATION
By: /s/ Bijon Jalaie
___________________________
Title: Commercial Banking Officer
___________________________
135 South LaSalle Street
Chicago, IL 60603
Attention: Bijon Jalaie,
Vice President
Telephone: (317) 756-7015
FAX: (317) 756-7021
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$12,500,000.00 SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/ Linda L. Dash
__________________________
Title: Vice President
__________________________
Mail Code 1115
200 South Orange Avenue
Orlando, FL 32801
Attention: Stephen L. Leister,
Vice President
Telephone: (407) 237-4705
FAX: (407) 237-6894
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SCHEDULE OF SUBSIDIARY BORROWERS
MPW Industrial Services, Inc.
MPW Management Services Corp.
MPW Filtration Management Services Corp.
MPW Industrial Water Services, Inc.
MPW Container Management Corp.
MPW Container Management Corp. of Michigan
ESI International, Inc.
ESI-North Limited
Gauthier Enterprises, Inc.
Maintenance Concepts, Inc.
Pentagon Technologies Group, Inc.
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PRICING SCHEDULE
(Applicable Margin in basis points per annum)
<TABLE>
<CAPTION>
APPLICABLE MARGIN LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS LEVEL IV STATUS LEVEL V STATUS
- ----------------- -------------- --------------- ---------------- --------------- --------------
<S> <C> <C> <C> <C> <C>
Eurodollar Rate 112.5 137.5 162.5 187.5 212.5
Floating Rate 0.0 0.0 0.0 25.0 50.0
</TABLE>
<TABLE>
<CAPTION>
APPLICABLE FEE RATE LEVEL I STATUS LEVEL II STATUS LEVEL III STATUS LEVEL IV STATUS LEVEL V STATUS
- ------------------- -------------- --------------- ---------------- --------------- --------------
<S> <C> <C> <C> <C> <C>
Commitment Fee 30.0 35.0 40.0 45.0 50.0
</TABLE>
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrowers delivered pursuant to Section 6.1(i) or (ii).
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrowers referred to in the most recent Financials, the
Leverage Ratio is less than 1.5 to 1.0.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrowers referred to in the most recent Financials, (i)
the Borrowers have not qualified for Level I Status and (ii) the Leverage Ratio
is less than 2.0 to 1.0.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrowers referred to in the most recent Financials, (i)
the Borrowers have not qualified for Level I Status or Level II Status and (ii)
the Leverage Ratio is less than 2.5 to 1.0.
"Level IV Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrowers referred to in the most recent financials, (i)
the Borrowers have not qualified for Level I Status, Level II Status or Level
III Status, and (ii) the Leverage Ratio is less than 3.0 to 1.0.
"Level V Status" exists at any date if the Borrowers have not qualified
for Level I Status, Level II Status, Level III Status or Level IV Status.
"Status" means either Level I Status, Level II Status, Level III
Status, Level IV Status or Level V Status.
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The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as reflected
in the then most recent Financials. Adjustments, if any, to the Applicable
Margin or Applicable Fee Rate shall be effective five Business Days after the
Administrative Agent has received the applicable Financials. If the Borrowers
fail to deliver the Financials to the Administrative Agent at the time required
pursuant to Section 6.1, then the Applicable Margin and Applicable Fee Rate
shall be the highest Applicable Margin and Applicable Fee Rate set forth in the
foregoing table until five days after such Financials are so delivered.
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EXHIBIT A
FORM OF OPINION ______________,
The Administrative Agent, the LC Issuer and the Lenders who are parties to the
Credit Agreement described below.
Gentlemen/Ladies:
We are counsel for [list Borrowers] (each a "Borrower", and
collectively, the "Borrowers"), [and [list Guarantors] (each a "Guarantor", and
collectively, the "Guarantors"), and have represented the Borrowers [and the
Guarantors] in connection with its execution and delivery of a Credit Agreement
dated as of October 20, 1999 (the "Agreement") among the Borrowers, the Lenders
named therein, Bank One, NA, as Administrative Agent and as the LC Issuer, and
National City Bank, as Documentation Agent, and providing for Credit Extensions
in an aggregate principal amount not exceeding $100,000,000 at any one time
outstanding. All capitalized terms used in this opinion and not otherwise
defined herein shall have the meanings attributed to them in the Agreement.
We have examined each Borrower's [and each Guarantor's] [describe
constitutive documents of each Borrower [and each Guarantor] and appropriate
evidence of authority to enter into the transaction], the Loan Documents and
such other matters of fact and law which we deem necessary in order to render
this opinion. Based upon the foregoing, it is our opinion that:
l. Each Borrower and its Subsidiaries [and Guarantor] is a
corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.
2. The execution and delivery by each Borrower and Guarantor of
the Loan Documents to which it is a party and the performance by each Borrower
and Guarantor of its obligations thereunder have been duly authorized by proper
corporate proceedings on the part of each Borrower and Guarantor and will not:
(a) require any consent of any Borrower's or Guarantor's
shareholders or members (other than any such consent as has already
been given and remains in full force and effect);
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(b) violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on any Borrower or any of
its Subsidiaries or any Guarantor or (ii) each Borrower's or any
Subsidiary's or any Guarantor's articles or certificate of
incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating or other
management agreement, as the case may be, or (iii) the provisions of
any indenture, instrument or agreement to which any Borrower or any of
its Subsidiaries or Guarantor is a party or is subject, or by which it,
or its Property, is bound, or conflict with or constitute a default
thereunder; or
(c) result in, or require, the creation or imposition of any
Lien in, of or on the Property of any Borrower or a Subsidiary or
Guarantor pursuant to the terms of any indenture, instrument or
agreement binding upon any Borrower or any of its Subsidiaries or
Guarantor.
3. The Loan Documents to which each Borrower or Guarantor is a
party have been duly executed and delivered by such Borrower and Guarantor and
constitute legal, valid and binding obligations of such Borrower and Guarantor
enforceable against such Borrower and Guarantor in accordance with their terms
except to the extent the enforcement thereof may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors' rights
generally and subject also to the availability of equitable remedies if
equitable remedies are sought.
4. There is no litigation, arbitration, governmental investigation,
proceeding or inquiry pending or, to the best of our knowledge after due
inquiry, threatened against any Borrower or any of its Subsidiaries or
Guarantor which, if adversely determined, could reasonably be expected to have a
Material Adverse Effect.
5. No order, consent, adjudication, approval, license, authorization,
or validation of, or filing, recording or registration with, or exemption by,
or other action in respect of any governmental or public body or authority, or
any subdivision thereof, which has not been obtained by the Borrowers or any of
their Subsidiaries or any Guarantor, is required to be obtained by the
Borrowers or any of its Subsidiaries or Guarantor in connection with the
execution and delivery of the Loan Documents, the borrowings under the
Agreement, the payment and performance by the Borrowers of the Obligations, or
the legality, validity, binding effect or enforceability of any of the Loan
Documents.
6. The provisions of the Collateral Documents are sufficient to
create in favor of the Lenders a security interest in all right, title and
interest of the Borrowers in those items and types of collateral described in
the Collateral Documents in which a security interest may be created under
Article 9 of the Uniform Commercial Code as in effect on the date of this
Agreement in Ohio. Financing statements on Form UCC-1's have been duly executed
by each Borrower and have been duly filed in each filing office indicated in
Exhibit A hereto under the Uniform Commercial Code in effect in each state in
which said filing offices are located. The description of the collateral set
forth in said financing statements is sufficient to perfect a security interest
in the items and types of collateral described therein in which a security
interest may be perfected
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<PAGE> 82
by the filing of a financing statement under the Uniform Commercial Code as in
effect in such states. Such filings are sufficient to perfect the security
interest created by the Collateral Documents in all right, title and interest of
each Borrower in those items and types of collateral described in the Collateral
Documents in which a security interest may be perfected by the filing of a
financing statement under the Uniform Commercial Code in such states, except
that we express no opinion as to personal property affixed to real property in
such manner as to become a fixture under the laws of any state in which the
collateral may be located and we call your attention to the fact that the
Lenders' security interest in certain of such collateral may not be perfected by
filing financing statements under the Uniform Commercial Code.
This opinion may be relied upon by the Administrative Agent, the LC
Issuer, the Lenders and their participants, assignees and other transferees.
Very truly yours,
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<PAGE> 83
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement Described Below
This Compliance Certificate is furnished pursuant to that certain
______________ Credit Agreement dated as of , 1999 (as amended, modified,
______________ renewed or extended from time to time, the "Agreement") among MPW
Industrial Services Group, Inc. and its Subsidiaries which are also party
thereto as Borrowers (the "Borrowers"), the lenders party thereto, Bank One, NA,
as Administrative Agent for the Lenders and as LC Issuer, and National City
Bank, as Documentation Agent. Unless otherwise defined herein, capitalized terms
used in this Compliance Certificate have the meanings ascribed thereto in the
Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _______________ of each Borrower (other than
Aquatech Environmental, Inc.) and the authorized agent of Aquatech
Environmental;
2. I have reviewed the terms of the Agreement and, in the normal course
of business, I am familiar with the transactions and conditions of the Borrowers
and their Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in paragraph 2 did not disclose, and I
have no knowledge of, the existence of any condition or event which constitutes
a Default or Unmatured Default during or at the end of the accounting period
covered by the attached financial statements or as of the date of this
Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrowers' compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct.
5. Schedule II hereto sets forth the determination of the interest
rates to be paid for Advances, the LC Fee rates and the commitment fee rates
commencing on the fifth day following the delivery hereof.
6. Schedule III attached hereto sets forth the various reports and
deliveries which are required at this time under the Credit Agreement, the
Collateral Document and the other Loan Documents and the status of compliance.
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<PAGE> 84
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrowers have taken, is taking, or proposes to
take with respect to each such condition or event:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
The foregoing certifications, together with the computations set forth
in Schedule I and Schedule II hereto and the financial statements delivered with
this Certificate in support hereof, are made and delivered this _____ day of
____________ ,_____.
------------------------------
78
<PAGE> 85
SCHEDULE I TO COMPLIANCE CERTIFICATE
Compliance as of _________, ____ with
Provisions of___________ and ___________ of
the Agreement
79
<PAGE> 86
SCHEDULE II TO COMPLIANCE CERTIFICATE
Borrower's Applicable Margin Calculation
80
<PAGE> 87
SCHEDULE III TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
81
<PAGE> 88
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
_________________ (the "Assignor") and _________________ (the "Assignee") is
dated as of ______________ , 19__. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit
Agreement (which, as it may be amended, modified, renewed or extended from time
to time is herein called the "Credit Agreement") described in Item 1 of Schedule
1 attached hereto ("Schedule 1"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to
the Assignee, and the Assignee hereby purchases and assumes from the Assignor,
an interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents, such that after giving effect to such
assignment the Assignee shall have purchased pursuant to this Assignment
Agreement the percentage interest specified in Item 3 of Schedule 1 of all
outstanding rights and obligations under the Credit Agreement and the other
Loan Documents relating to the facilities listed in Item 3 of Schedule 1. The
aggregate Commitment (or Outstanding Credit Exposure, if the applicable
Commitment has been terminated) purchased by the Assignee hereunder is set
forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement
(the "Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two Business Days (or such shorter period agreed to by the
Administrative Agent) after this Assignment Agreement, together with any
consents required under the Credit Agreement, are delivered to the
Administrative Agent. In no event will the Effective Date occur if the payments
required to be made by the Assignee to the Assignor on the Effective Date are
not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment
of Outstanding Credit Exposure hereunder, the Assignee shall pay the Assignor,
on the Effective Date, the amount agreed to by the Assignor and the Assignee.
On and after the Effective Date, the Assignee shall be entitled to receive from
the Administrative Agent all payments of principal, interest, Reimbursement
Obligations and fees with respect to the interest assigned hereby. The Assignee
will promptly remit to the Assignor any interest on Loans and fees received
from the Administrative Agent which relate to the portion of the Commitment or
Outstanding Credit Exposure assigned to the Assignee hereunder for periods
prior to the Effective Date and not previously paid by the Assignee to the
Assignor. In the event that either party hereto receives any payment to which
the other party hereto is entitled under this Assignment Agreement, then the
party receiving such amount shall promptly remit it to the other party hereto.
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<PAGE> 89
5. RECORDATION FEE. The Assignor and Assignee each agree to pay
one-half of the recordation fee required to be paid to the Administrative Agent
in connection with this Assignment Agreement unless otherwise specified in Item
6 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder, (ii) such
interest is free and clear of any adverse claim created by the Assignor and
(iii) the execution and delivery of this Assignment Agreement by the Assignor is
duly authorized. It is understood and agreed that the assignment and assumption
hereunder are made without recourse to the Assignor and that the Assignor makes
no other representation or warranty of any kind to the Assignee. Neither the
Assignor nor any of its officers, directors, employees, agents or attorneys
shall be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of any Loan Document,
including without limitation, documents granting the Assignor and the other
Lenders a security interest in assets of the Borrowers or any guarantor, (ii)
any representation, warranty or statement made in or in connection with any of
the Loan Documents, (iii) the financial condition or creditworthiness of the
Borrowers or any guarantor, (iv) the performance of or compliance with any of
the terms or provisions of any of the Loan Documents, (v) inspecting any of the
property, books or records of the Borrowers, (vi) the validity, enforceability,
perfection, priority, condition, value or sufficiency of any collateral securing
or purporting to secure the Loans or (vii) any mistake, error of judgment, or
action taken or omitted to be taken in connection with the Loans or the Loan
Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee
(i) confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements requested by the Assignee and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment Agreement, (ii) agrees that
it will, independently and without reliance upon the Administrative Agent, the
Assignor or any other Lender and based on such documents and information at it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (iv) confirms that the execution and delivery of
this Assignment Agreement by the Assignee is duly authorized, (v) agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the Loan Documents are required to be performed by it as a Lender, (vi)
agrees that its payment instructions and notice instructions are as set forth in
the attachment to Schedule 1, (vii) confirms that none of the funds, monies,
assets or other consideration being used to make the purchase and assumption
hereunder are "plan assets" as defined under ERISA and that its rights, benefits
and interests in and under the Loan Documents will not be "plan assets" under
ERISA, (viii) agrees to indemnify and hold the Assignor harmless against all
losses, costs and expenses (including, without limitation, reasonable attorneys'
fees) and liabilities incurred by the Assignor in connection with or arising in
any manner from the Assignee's non-performance of the obligations assumed under
this Assignment Agreement, and (ix) if applicable, attaches the forms prescribed
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<PAGE> 90
by the Internal Revenue Service of the United States certifying that the
Assignee is entitled to receive payments under the Loan Documents without
deduction or withholding of any United States federal income taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by
the internal law, and not the law of conflicts, of the State of Ohio.
9. NOTICES. Notices shall be given under this Assignment Agreement
in the manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered) shall
be the address set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement
may be executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart and such facsimile shall be deemed to be
an original counterpart of this Assignment Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
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<PAGE> 91
<TABLE>
<CAPTION>
SCHEDULE 1
to Assignment Agreement
1. Description and Date of Credit Agreement: Credit Agreement dated October 20,
1999, among MPW Industrial Services, Inc., its Subsidiaries which are also
Borrowers thereto, the lenders party, thereto, Bank One, NA as Administrative
Agent and LC Issuer, and National City Bank, as Documentation Agent.
2. Date of Assignment Agreement: _______, 19
3. Amounts (As of Date of Item 2 above):
Facility Facility Facility Facility
1* 2* 3* 4*
-------- --------- --------- --------
<S> <C> <C> <C> <C>
a. Assignee's percentage
of each Facility purchased
under the Assignment
Agreement** --------% ---------% ---------% --------%
b. Amount of
each Facility
purchased
under the Assignment
Agreement*** $ $ $ $
-------- --------- ---------
4. Assignee's Commitment (or
Outstanding Credit Exposure
with respect to terminated
Commitments) purchased
hereunder: $
----------
5. Proposed Effective Date: -----------------
6. Non-standard Recordation Fee
Arrangement N/A***
[Assignor/Assignee
to pay 100% of fee]
[Fee waived by Administrative Agent]
</TABLE>
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By: _____________________________ By: _____________________________
Title: _____________________________ Title: _____________________________
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<PAGE> 92
ACCEPTED AND CONSENTED TO BY ACCEPTED AND CONSENTED TO BY
MPW INDUSTRIAL SERVICES GROUP, INC. BANK ONE, NA
AND ITS SUBSIDIARIES WHICH ARE ALSO
BORROWERS UNDER THE CREDIT AGREEMENT
By: _____________________________ By: _____________________________
Title: _____________________________ Title: _____________________________
* Insert specific facility names per Credit Agreement
** Percentage taken to 10 decimal places
*** If fee is split 50-50, pick N/A as option
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<PAGE> 93
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must include notice
addresses for the Assignor and the Assignee (Sample form shown below)
ASSIGNOR INFORMATION
CONTACT:
Name: _____________________________ Telephone No.: _________________________
Fax No.: __________________________ Telex No.: _____________________________
Answerback: ____________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: ___________________________________________
________________________________________________
Account Name & Number for Wire Transfer: _____________________________________
_____________________________________
Other Instructions: __________________________________________________________
______________________________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNOR: ____________________________________________
____________________________________________
____________________________________________
ASSIGNEE INFORMATION
CREDIT CONTACT:
Name: _____________________________ Telephone No.: _________________________
Fax No.: __________________________ Telex No.: _____________________________
Answerback: ____________________________
KEY OPERATIONS CONTACTS:
Booking Installation: ______________ Booking Installation: __________________
Name: ______________________________ Name: __________________________________
Telephone No.: _____________________ Telephone No.: _________________________
Fax No.: ___________________________ Fax No.: _______________________________
Telex No.: _________________________ Telex No.: _____________________________
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<PAGE> 94
Answerback: ________________________ Answerback: ____________________________
PAYMENT INFORMATION:
Name & ABA # of Destination Bank: ___________________________________________
________________________________________________
Account Name & Number for Wire Transfer: _____________________________________
_____________________________________
Other Instructions: __________________________________________________________
______________________________________________________________________________
ADDRESS FOR NOTICES FOR ASSIGNOR: ____________________________________________
____________________________________________
____________________________________________
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<PAGE> 95
BANK ONE INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
INITIAL AND SUBSEQUENT FUNDING CONTACT:
Name: Michelle Rickens
Telephone No.: (614) 248-6365
Fax No.: (614) 248-3136
INITIAL FUNDING STANDARDS:
Libor - Fund 2 days after rates are set.
BANK ONE WIRE INSTRUCTIONS: Bank One, NA, ABA # 044000037
Wire in Process Account
Ref: MPW Industrial Services Group, Inc.
ADDRESS FOR NOTICES FOR BANK ONE: 100 East Broad Street
Columbus, OH 43215
Attn: Michelle Rickens
Fax No. (614) 248-3136
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<PAGE> 96
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To Bank One, NA,
as Administrative Agent (the "Administrative Agent") under the Credit Agreement
Described Below.
Re: Credit Agreement, dated October 20, 1999 (as the same may be amended or
modified, the "Credit Agreement"), among MPW Industrial Services Group,
Inc. and the other borrowers named therein (the "Borrowers"), the
Lenders named therein, the Administrative Agent, and National City
Bank, as Documentation Agent. Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned thereto in
the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrowers, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrowers
in accordance with Section 13.1 of the Credit Agreement or based on any
telephonic notice made in accordance with Section 2.14 of the Credit Agreement.
Facility Identification Number(s) ____________________________________________
Customer/Account Name ________________________________________________________
Transfer Funds To ____________________________________________________________
__________________________________________________________
For Account No. ______________________________________________________________
Reference/Attention To _______________________________________________________
Authorized Officer (Customer Representative) Date _____________________
______________________________________ ___________________________________
(Please Print) Signature
Bank Officer Name Date ______________________________
______________________________________ ___________________________________
(Please Print) Signature
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
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<PAGE> 97
EXHIBIT E
NOTE
[Date]
MPW Industrial Services Group, Inc. ("MPW Group"), Aquatech
Environmental, Inc. and each other Subsidiary of MPW Group listed on Schedule I
attached hereto or made a party hereto in accordance with the terms hereof
(collectively, the "Borrowers"), jointly and severally, promise to pay to the
order of ____________________________________ (the "Lender") the aggregate
unpaid principal amount of all Loans made by the Lender to the Borrowers
pursuant to Article II of the Agreement (as hereinafter defined), in immediately
available funds at the main office of Bank One, NA in Columbus, Ohio, as
Administrative Agent, together with interest on the unpaid principal amount
hereof at the rates and on the dates set forth in the Agreement. The Borrowers
shall pay the principal of and accrued and unpaid interest on the Loans in full
on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on Schedule II
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the Credit Agreement dated as of October 20 (which, as it may
be amended or modified and in effect from time to time, is herein called the
"Agreement"), among the Borrowers, the lenders party thereto, including the
Lender, the LC Issuer, Bank One, NA, as Administrative Agent, and National City
Bank, as Documentation Agent, to which Agreement reference is hereby made for a
statement of the terms and conditions governing this Note, including the terms
and conditions under which this Note may be prepaid or its maturity date
accelerated. This Note is secured pursuant to the Collateral Documents and
guaranteed pursuant to the Guaranty, all as more specifically described in the
Agreement, and reference is made thereto for a statement of the terms and
provisions thereof. Capitalized terms used herein and not otherwise defined
herein are used with the meanings attributed to them in the Agreement.
ADDITIONAL BORROWERS. Each Person which becomes a Subsidiary after the
date of the Agreement shall be required to become a party to the Agreement and
this Note by the execution and delivery by such a Subsidiary and the Agent of
the Supplement in the form of Exhibit __ attached to the Agreement. Upon such
execution and delivery, each such Subsidiary shall become a Borrower under the
Agreement, the Facility LC Applications and this Note with the same force and
effect as if originally named a Borrower under the Agreement, the Facility LC
Applications and this Note. The execution of and delivery of any such
Supplements shall not require the consent of any other Borrower. The rights and
obligations of each Borrower under the Agreement, the Facility LC Applications
and this Note shall remain in full force and effect notwithstanding the addition
of any new Borrower to the Agreement and this Note. Each such
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<PAGE> 98
Supplement, or a photocopy thereof (which shall be as effective as a manually
signed counterpart of the Supplement) shall be attached to this Note as an
allonge.
BORROWERS:
MPW Industrial Services Group, Inc.
By:___________________________
Daniel P. Buettin, Vice President
and Chief Financial Officer
Aquatech Environmental, 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> 99
SCHEDULE I
SUBSIDIARIES
MPW Industrial Services, Inc.
MPW Management Services Corp.
MPW Filtration Management Services Corp.
MPW Industrial Water Services, Inc.
MPW Container Management Corp.
MPW Container Management Corp. of Michigan
ESI International, Inc.
ESI-North Limited
Gauthier Enterprises, Inc.
Maintenance Concepts, Inc.
Pentagon Technologies Group, Inc.
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<PAGE> 100
SCHEDULE II
SCHEDULE OF LOANS AND PAYMENTS OF PRINCIPAL
TO
NOTE OF MPW INDUSTRIAL SERVICES GROUP, INC. ("MPW GROUP"), AQUATECH
ENVIRONMENTAL, INC. AND EACH OTHER SUBSIDIARY OF MPW GROUP
DATED OCTOBER 20, 1999
<TABLE>
<CAPTION>
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
94
<PAGE> 101
EXHIBIT F
SUPPLEMENT
95
<PAGE> 102
SUPPLEMENT NO. _____
(To Credit Agreement)
THIS SUPPLEMENT NO. _____, (the "Supplement') dated as of
_______________, to the Credit Agreement dated as of October 20, 1999 among MPW
Industrial Services Group, Inc. ("MPW Group"), each Subsidiary of MPW Group
listed on Schedule I attached hereto or which has entered into a previous
Supplement (collectively, the "Borrowers"), Bank One, NA, as Administrative
Agent (in such capacity, the "Administrative Agent"), for the Lenders (as
defined herein), the Lenders and National City Bank, as Documentation Agent, is
made and entered into by the New Borrower (as hereinafter defined) and Bank One,
NA, as such Administrative Agent.
BACKGROUND INFORMATION
A. Reference is made to the Credit Agreement dated as of October 20,
1999 (as the same may be amended, modified, supplemented, renewed, extended,
restated or replaced from time to time, the "Agreement"), among the Borrowers,
the lenders from time to time party thereto ("Lenders"), the Administrative
Agent and National City Bank, as Documentation Agent.
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 Advances and Loans to the Borrowers and Bank One to issue Facility
LCs. Section 2.24 of the Agreement provides that additional Subsidiaries of the
Borrowers shall become Borrowers under the Agreement, the Facility LC
Applications and the Notes 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 Facility LC Applications and the
Notes in order to induce the Banks to make additional Advances and Loans to the
Borrowers and Bank One to issue additional Facility LCs and as consideration for
Advances and Loans previously made and Facility LCs previously issued.
PROVISIONS
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:
1. In accordance with Section 2.24 of the Agreement, the New Borrower
by its signature below becomes a Borrower under the Agreement, the Facility LC
Applications and the Notes 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 Facility LC Applications and the Notes
applicable to it as a Borrower thereunder, and (b) represents and
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<PAGE> 103
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 Facility LC Applications, the Notes and any
other Loan Document shall be deemed to include the New Borrower. The Agreement,
the Facility LC Applications, the Notes and the Loan Documents are hereby
incorporated herein by reference.
2. The New Borrower represents and warrants to the Administrative Agent
and the Lenders 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.
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 Administrative Agent
shall have received counterparts of this Supplement that, when taken together,
bear the signatures of the New Borrower and the Administrative 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.
4. Except as expressly supplemented hereby, the Agreement, the Facility
LC Applications, the Notes and all other Loan Documents shall remain in full
force and effect.
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.
6. This Supplement shall be governed by, and construed in accordance
with, the laws of the State of Ohio.
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 Facility LC Applications, the Notes and the
other Loan Documents 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 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.
8. All communications and notices hereunder shall be in writing and
given as provided in Section 13.1 of the Agreement.
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<PAGE> 104
9. The New Borrower agrees to reimburse the Administrative 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 Administrative Agent.
IN WITNESS WHEREOF, the New Borrower and the Administrative 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 Administrative Agent,
for and on behalf of itself, the Lenders
and the Documentation Agent
By:______________________________
Name: ___________________________
Title:_____________________________
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<PAGE> 105
SCHEDULE I
SUBSIDIARIES
MPW Industrial Services, Inc.
MPW Management Services Corp.
MPW Filtration Management Services Corp.
MPW Industrial Water Services, Inc.
MPW Container Management Corp.
MPW Container Management Corp. of Michigan
ESI International, Inc.
ESI-North Limited
Gauthier Enterprises, Inc.
Maintenance Concepts, Inc.
Pentagon Technologies Group, Inc.
Aquatech Enviromental, Inc.
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SCHEDULE 1
SUBSIDIARIES AND OTHER INVESTMENTS
(See Sections 5.8 and 6.14)
SUBSIDIARIES
<TABLE>
<CAPTION>
Investment Jurisdiction of Owned Amount of Percent
In Organization By Investment Ownership
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
MPW Industrial Ohio MPW Industrial 100%
Services, Inc. Services Group, Inc.
MPW Industrial New Brunswick, MPW Management 100%
Services, Ltd. Canada Services Corp.
MPW Industrial Ohio MPW Management 100%
Water Services, Inc. Services Corp.
MPW Industrial, Mexico MPW Filtration Management Services Corp. 16.67%
Sociedad de Responsibilidad MPW Management Services Corp. 83.33%
Limitada de Capital Variable
MPW Management Ohio MPW Industrial 100%
Services Corp. Services, Inc.
MPW Filtration Ohio MPW Management 100%
Management Services Corp. Services Corp.
ESI Ohio MPW Industrial Services 100%
International, Inc. Group, Inc.
ESI-North Limited Ohio ESI International, Inc. 100%
MPW Container Ohio MPW Management 100%
Management Corp. Services Corp.
Maintenance Ohio MPW Industrial 100%
Concepts, Inc. Services, Inc.
MPW Container
Management Corp. Michigan MPW Management 100%
of Michigan Services Corp.
</TABLE>
100
<PAGE> 107
<TABLE>
<S> <C>
Gauthier Michigan MPW Filtration Management 100%
Enterprises, Inc. Services Corp.
Pentagon Technologies Ohio MPW Management Services Corp. 100%*
Group, Inc.
Aquatech Michigan MPW Industrial Services 100%
Environmental, Inc. Group, Inc.
</TABLE>
- -----------------
*100% of common stock owned by MPW Management Services Corp. Certain shares of
Series A Preferred Stock owned by various individuals.
101
<PAGE> 108
OTHER INVESTMENTS
<TABLE>
<CAPTION>
Investment Jurisdiction of Owned Amount of Percent
In Organization By Investment Ownership
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
</TABLE>
NONE
102
<PAGE> 109
SCHEDULE 2
INDEBTEDNESS AND LIENS
(See Sections 5.14, 6.11 and 6.15)
<TABLE>
<CAPTION>
Maturity
Indebtedness Indebtedness Property and Amount
Incurred By Owed To Encumbered (If Any) of Indebtedness
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
MPW Industrial Thermal Coating, Inc. $1,000,000
Services Group, Inc. August 9, 2002
</TABLE>
103
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM MPW
INDUSTRIAL SERVICES GROUP, INC. FORM 10-Q FOR THE THREE MONTH PERIOD ENDED
SEPTEMBER 30, 1999 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-30-2000
<PERIOD-START> JUL-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 325
<SECURITIES> 0
<RECEIVABLES> 39,931
<ALLOWANCES> 959
<INVENTORY> 9,279
<CURRENT-ASSETS> 53,551
<PP&E> 80,364
<DEPRECIATION> 34,797
<TOTAL-ASSETS> 156,451
<CURRENT-LIABILITIES> 20,785
<BONDS> 77,162
0
0
<COMMON> 109
<OTHER-SE> 52,368
<TOTAL-LIABILITY-AND-EQUITY> 156,451
<SALES> 46,396
<TOTAL-REVENUES> 46,396
<CGS> 31,295
<TOTAL-COSTS> 41,706
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,310
<INCOME-PRETAX> 3,380
<INCOME-TAX> 1,352
<INCOME-CONTINUING> 2,028
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 2,028
<EPS-BASIC> 0.19
<EPS-DILUTED> 0.17
</TABLE>
