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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): September 1, 1994
METATEC CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
Florida 0-9220 59-1698890
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
</TABLE>
<TABLE>
<S> <C>
7001 Metatec Blvd., Dublin, Ohio 43017
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(Address of principal executive offices) (Zip Code)
</TABLE>
Registrant's telephone number, including area code: (614) 761-2000
No Change
(Former name or former address, if changed since last report)
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ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On September 1, 1994, the Registrant purchased, in fee simple title,
from Jeffrey M. Wilkins, the Registrant's Chairman of the Board and Chief
Executive Officer, approximately seven acres of land and the approximately
55,000 square foot office and manufacturing facility situated thereon located
at 7001 Metatec Boulevard, Dublin, Ohio (the "Dublin Facility"). Prior to that
time, the Dublin Facility was leased by the Registrant from Mr. Wilkins as part
of its manufacturing facilities and as its principal executive offices. The
Dublin Facility was purchased pursuant to the terms of an option to purchase
which was contained in the lease for the Dublin Facility. This option provided
that the Registrant could purchase the Dublin Facility at any time prior to the
expiration of the lease term for a purchase price equal to the lesser of (a)
$4.8 million or (b) an amount equal to the value in use of the Dublin Facility,
as determined by an MAI appraiser, reduced by $660,000 (the value of Registrant
improvements in use at the time the option was granted) and without
consideration of any improvements made by the Registrant after January 1, 1994.
Pursuant to foregoing formula, the purchase price paid to Mr. Wilkins, in cash,
was $4.8 million. The Registrant also paid expenses in connection with the
purchase totaling $4,710, none of which were paid to Mr. Wilkins. The lease
was cancelled in connection with the purchase of the Dublin Facility. The
Dublin Facility was purchased with the proceeds of a first mortgage loan in the
principal amount of $4.8 million made to the Registrant by The Huntington
National Bank. The Registrant continues to use the Dublin Facility as part of
its manufacturing facilities and as its principal executive offices.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
Exhibit
No. Description of Exhibit
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10(a) Lease and Option Agreement dated March 1, 1994, between Metatec
Corporation and Jeffrey M. Wilkins.
10(b) Real Estate Purchase Agreement dated September 1, 1994, between
Metatec Corporation and Jeffrey M. Wilkins.
10(c) Loan Agreement dated May 13, 1994, between The Huntington National
Bank, Metatec Corporation, and Metatec/Discovery Systems, Inc.
10(d) First Amendment to Loan Agreement dated September 1, 1994, between The
Huntington National Bank, Metatec Corporation, and Metatec/Discovery
Systems, Inc.
10(e) Second Amendment to Loan Agreement dated February 1, 1995, between The
Huntington National Bank, Metatec Corporation, and Metatec/Discovery
Systems, Inc.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
METATEC CORPORATION
Date: March 28, 1995 By /s/ William H. Largent
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William H. Largent
Vice President, Finance,
and Treasurer
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EXHIBIT INDEX
Exhibit
No. Description of Exhibit
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10(a) Lease and Option Agreement dated March 1, 1994, between Metatec
Corporation and Jeffrey M. Wilkins. (Contained herein)
10(b) Real Estate Purchase Agreement dated September 1, 1994, between Metatec
Corporation and Jeffrey M. Wilkins. (Contained herein)
10(c) Loan Agreement dated May 13, 1994, between The Huntington National
Bank, Metatec Corporation, and Metatec/Discovery Systems, Inc.
(Contained herein)
10(d) First Amendment to Loan Agreement dated September 1, 1994, between The
Huntington National Bank, Metatec Corporation, and Metatec/Discovery
Systems, Inc. (Contained herein)
10(e) Second Amendment to Loan Agreement dated February 1, 1995, between The
Huntington National Bank, Metatec Corporation, and Metatec/Discovery
Systems, Inc. (Contained herein)
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Exhibit 10(a)
LEASE AND OPTION AGREEMENT
This agreement is made effective March 1, 1994, between Jeffrey M.
Wilkins ("Landlord"), and Metatec Corporation, a Florida corporation
("Tenant").
BACKGROUND INFORMATION
A. Landlord and Tenant's wholly owned subsidiary,
Metatec/Discovery Systems, Inc., an Ohio corporation ("Discovery"), are the
parties to an Amended and Restated Building Lease dated November 26, 1991 (the
"Discovery Lease"), for the lease of certain real property located in Franklin
County, Ohio, more fully described on the attached Exhibit A (the "Land"),
together with all improvements thereon, including without limitation an
approximately 55,000 square foot, two-story office and light manufacturing
building (the "Building"), and all appurtenances thereto (collectively, the
"Premises"). Tenant has guaranteed Discovery's payment obligations under the
Discovery Lease pursuant to a Lease Guaranty dated November 26, 1991 from
Tenant to Landlord (the "Guaranty"), and Landlord has granted Tenant an option
to purchase the Premises (the "Option") pursuant to an Option Agreement dated
November 26, 1991, between Landlord and Tenant (the "Option Agreement").
B. Tenant has acquired approximately eight acres of land adjacent
to the Premises (the "Adjacent Property") and has begun construction on an
extension of the Building and related improvements which will be owned by
Tenant (collectively, the "Building Extension") which are to be constructed in
accordance with plans and specifications previously reviewed and approved by
both Landlord and Tenant (the "Plans"). Although most of the Building
Extension will be built on the Adjacent Property, a portion of the Building
Extension will be built on the Land, and the Building Extension will require
certain modifications to the Building.
C. Landlord and Tenant (the "Parties") desire to enter into this
agreement to restructure the existing contractual relationships relating to the
Premises to, among other things: (i) make Tenant the lessee of the Premises
and terminate the Discovery Lease and the Guaranty, (ii) effectively extend the
term of the existing leasehold interest in the Premises, (iii) extend the term
of the Option, (iv) incorporate the Option into this agreement, (v) cap the
base rent payable for the Premises and the purchase price payable upon exercise
of the Option, and (vi) make certain other changes to their respective rights
and obligations regarding the Premises, all upon the terms and conditions
contained in this agreement. Concurrently with the execution of this
agreement, the
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Parties are also entering into a Cross-Easement Agreement and a Party Wall
Agreement (the "Agreements") to define certain of their additional rights and
obligations with respect to the Premises, the Adjacent Property, and the
Building Extension.
STATEMENT OF AGREEMENT
The Parties to this agreement hereby acknowledge the accuracy of the
above Background Information and agree as follows:
ARTICLE I - DESCRIPTION AND LEASE OF PREMISES
Section 1.01 Lease of Premises. Upon the terms and subject to the
conditions described in this agreement, Landlord hereby leases the Premises to
Tenant, and Tenant hereby leases the Premises from Landlord.
Section 1.02 Basic Lease Provisions.
A. Term: 15 years commencing on the date of this
agreement (the "Commencement Date") and ending on
February 28, 2009 (the "Termination Date").
B. Annual Base Rent: $582,396
C. Monthly Installments of Base Rent: $48,533
D. Address for Notices and Payments:
Landlord: Jeffrey M. Wilkins
7001 Metatec Boulevard
Dublin, Ohio 43017
Tenant: Metatec Corporation
7001 Metatec Boulevard
Dublin, Ohio 43017
Attention: President
ARTICLE II - TERM AND POSSESSION
Section 2.01 Term. The term of this agreement shall be for the
period specified in Item A of the Basic Lease Provisions set forth in Section
1.02 of this agreement (the "Basic Lease Provisions") and shall begin and end
on the Commencement Date and Termination Date, respectively.
Section 2.02 Tenant's Acceptance of the Premises. Tenant hereby
acknowledges that Tenant has accepted the Premises for occupancy and that the
condition of the Premises is satisfactory and in conformity with the provisions
of this agreement in all respects.
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Section 2.03 Surrender of the Premises. On the Termination Date,
or any earlier termination of this agreement, or upon the exercise by Landlord
of its right to reenter the Premises without terminating this agreement, Tenant
shall immediately surrender the Premises to Landlord, together with all
alterations, improvements and other property as provided elsewhere herein, in
broom- clean condition and in good order, condition and repair, except for
ordinary wear and tear and damage which Tenant is not obligated to repair. If
Tenant should fail to surrender the Premises as described in the preceding
sentence, then Landlord may restore the Premises to such condition at Tenant's
expense. Upon such expiration or termination, Tenant shall, unless prohibited
from doing so by other provisions of this agreement, have the right to remove
its personal property and trade fixtures. Tenant shall promptly repair any
damage caused by any such removal, and shall restore the Premises to the
condition existing prior to the installation of the items so removed.
Section 2.04 Holding Over. In the event that Tenant holds over in
possession of the Premises after the Termination Date, Landlord shall deem
Tenant a tenant-at-will at a monthly rent equal to 200% of the monthly Base
Rent which is specified in Item C of the Basic Lease Provisions. Nothing in
this section shall be deemed to give Tenant any right to hold over possession
of the Premises beyond the Termination Date.
ARTICLE III - RENT
Section 3.01 Base Rent. Tenant shall pay to Landlord as Base Rent
for the Premises the annual sum specified in Item B of the Basic Lease
Provisions, payable in equal consecutive monthly installments in the amount
specified in Item C of the Basic Lease Provisions, in advance, on or before the
first day of each and every calendar month during the term of this agreement.
Section 3.02 Additional Rent.
(a) Definitions. For purposes of this section, the
following definitions shall apply:
(i) Taxes - "Taxes" shall mean all real and
personal property taxes and assessments upon the Premises or
assessments levied in lieu thereof imposed by any
governmental authority or agency, and any nonprogressive tax
on or measured by gross rentals received from the rental of
the Premises, which become due during the term of this
agreement, but shall not include any net income, franchise,
capital stock, estate or inheritance taxes.
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(ii) Utilities - "Utilities" shall mean all costs,
expenses, charges, and bills for electricity, gas, water,
sewage disposal, trash removal, telephone and other utility
services used or wasted in connection with the Premises
during the term of this agreement.
(b) Tenant's Payment Obligation. In addition to the Base
Rent, Tenant shall pay when due, as additional rent, all Taxes and
Utilities. Unless otherwise requested by Landlord, Tenant shall pay
all Taxes and Utilities directly to the appropriate governmental
authority or agency or utility provider, as the case may be. Landlord
shall promptly deliver to Tenant, for payment as provided in this
section, all bills for Taxes and Utilities which are received by
Landlord.
Section 3.03 Interruption of Services. Any one or more of the
Utilities may be interrupted by reason of accident, emergency or other causes
beyond Landlord's control, or may be discontinued or diminished temporarily by
Landlord or other persons until certain repairs, alterations or improvements
can be made. Landlord does not represent or warrant the uninterrupted
availability of the Utilities, and any such interruption shall not be deemed an
eviction or disturbance of Tenant's right to possession, occupancy and use of
the Premises or any part thereof or render Landlord liable to Tenant for
damages by abatement of rent or otherwise, or relieve Tenant from the
obligation to perform its covenants under this agreement.
Section 3.04 Service Charge. If any installment of Base Rent,
additional rent, or any other payment provided for in this agreement is not
paid within the applicable period specified in Section 15.01(a), Tenant shall
pay to Landlord a late charge of five percent of the amount of such installment
or other payment, and, in addition, the unpaid amount shall bear interest at a
fluctuating rate which is four percent greater than the "prime rate" announced
by The Huntington National Bank from the date such installment became due and
payable to the date of payment by Tenant; provided that nothing contained in
this agreement shall be construed or implemented in such a manner as to allow
Landlord to charge or receive interest in excess of the maximum legal rate then
allowed by law. Such late charge and interest shall constitute additional rent
hereunder due and payable with the next monthly installment of Base Rent. If
any payment of additional rent is disputed by Tenant and Landlord, and such
dispute is ultimately resolved in favor of the Tenant, Landlord shall promptly
refund or abate the amount of any late charge and interest penalty paid or due
to Landlord by Tenant on such disputed amount.
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ARTICLE IV - USE OF PREMISES
Section 4.01 Specific Use. The Premises shall be occupied and
used for manufacturing compact discs and related products, office space, and
purposes incidental thereto, and for any other purposes expressly permitted by
this agreement. The Premises shall not be used for any other purpose.
Section 4.02 Covenants Regarding Use. In connection with its use
of the Premises, Tenant agrees to do the following:
(a) Tenant shall use the Premises and conduct its
business thereon in a safe, careful, reputable, and lawful manner.
(b) Tenant shall not commit, nor allow to be committed,
in, on or about the Premises any act of waste, including any act which
might deface, damage, or destroy the Building or any part thereof; use
or permit to be used on the Premises any hazardous substance,
equipment, or other thing which might cause injury to person or
property or increase the danger of fire or other casualty in, on or
about the Premises; or permit any objectionable or offensive noise or
odors to be emitted from the Premises.
(c) Tenant shall not use the Premises, or allow the
Premises to be used, for any purpose or in any manner which would, in
Landlord's opinion, invalidate any policy of insurance now or hereafter
carried on the Building or increase the rate of premiums payable on any
such insurance policy. If Tenant fails to comply with this covenant,
Landlord may, at its option, require Tenant to stop engaging in such
activity or to reimburse Landlord as additional rent for any increase
in premiums charged during the term of this agreement on the insurance
carried by Landlord on the Building and attributable to the use being
made of the Premises by Tenant.
(d) Tenant shall not vacate or abandon the Premises at
any time during the term of this agreement without Landlord's written
consent.
Section 4.03 Access to and Inspection of the Premises. Landlord,
its employees and agents, and any mortgagee of the Premises shall have the
right to enter any part of the Premises at all reasonable times for the purpose
of examining or inspecting the same, showing the same to prospective
purchasers, mortgagees, or tenants and for making such repairs, alterations, or
improvements to the Premises as Landlord may deem necessary or desirable. If
representatives of Tenant shall not be present to open and permit such entry
into the Premises at any time when such entry is necessary or permitted
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hereunder, Landlord and its employees and agents may enter the Premises by
means of a master key or otherwise. Landlord shall incur no liability to
Tenant for such entry, nor shall such entry constitute an eviction of Tenant or
a termination of this agreement, or entitle Tenant to any abatement of rent
therefor.
Section 4.04 Compliance with Laws. Tenant shall comply with all
laws, statutes, ordinances, rules, regulations, and orders of any federal,
state, municipal or other government or agency thereof having jurisdiction over
and relating to the use and occupancy of the Premises, except that Tenant shall
not be responsible for or required to make structural repairs to the Premises
unless, in the case of the latter, they are occasioned by its own negligence.
Section 4.05 Compliance with Rules and Regulations. Tenant shall
comply with and conform to the Rules and Regulations which are set forth on a
schedule attached hereto as Exhibit B. Landlord shall have the right to make
reasonable amendments or additions to such Rules and Regulations from time to
time in any manner that it reasonably deems necessary or desirable in order to
insure the safety, care and cleanliness of the Premises and the preservation of
order therein. Any such amendments to the Rules and Regulations shall be set
forth in writing and shall be given to Tenant, who shall thereafter comply with
and conform to the same.
ARTICLE V - SIGNS
Section 5.01 Signs. Tenant shall not inscribe, paint, affix or
display any signs, advertisements or notices on the Premises, including but not
limited to the exterior of the Building and the lobby, except for such tenant
identification information as Landlord expressly permits; provided that such
permission will not be unreasonably withheld.
ARTICLE VI - REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS, AND FIXTURES
Section 6.01 Repair and Maintenance of Building. Landlord shall
keep and maintain the Building in good order, condition, and repair including,
without limitation, the roof, exterior and interior structural walls (including
any plate glass windows comprising a part thereof), foundation, and the
electrical, plumbing, heating, ventilation, and air-conditioning systems, the
grounds, parking areas, and loading dock; provided that Tenant shall reimburse
Landlord for all such maintenance costs and expenses borne by Landlord. Tenant
shall be separately billed and shall reimburse Landlord for the same as
additional rent.
Section 6.02 Repair and Maintenance of Premises. Tenant shall
keep and maintain the Premises in good order, condition, and
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repair. Except for ordinary wear and tear and damage which Tenant is not
obligated to repair as provided in Article VII of this agreement, the cost and
expense of all such repairs and maintenance shall be borne by Tenant, who shall
be separately billed and shall reimburse Landlord for the same as additional
rent.
Section 6.03 Alterations or Improvements. Tenant may make, or may
permit to be made, alterations or improvements to the Premises, but only with
the prior written consent of Landlord thereto. If Landlord allows Tenant to
make any alterations or improvements to the Premises, Tenant shall make the
same in accordance with all applicable laws and building codes, in a good and
workmanlike manner and in quality equal to or better than the original
construction of the Building and shall comply with such requirements as
Landlord considers necessary or desirable, including without limitation
requirements as to the manner in which and the times at which such work shall
be done and the contractor or subcontractors to be selected to perform such
work. Tenant shall promptly pay all costs and expenses attributable to such
alterations and improvements and shall indemnify Landlord against any
mechanics' liens or other liens or claims filed or asserted as a result thereof
and against any costs or expenses which may be incurred as a result of building
code violations attributable to such work. Tenant shall promptly repair any
damage to the Premises or the Building caused by any such alterations or
improvements. Any alterations or improvements to the Premises, except movable
office furniture and equipment and trade fixtures, shall become a part of the
realty and the property of Landlord, and shall not be removed by Tenant.
Section 6.04 Trade Fixtures. Any trade fixtures installed on the
Premises by Tenant at its own expense may, and, at the request of Landlord,
shall be removed on the termination of this lease, provided that Tenant is not
then in default, that Tenant bears the cost of such removal, and further that
Tenant repairs at its own expense any and all damage to the premises resulting
from such removal. If Tenant fails to remove any and all such trade fixtures
from the Premises on the termination of this lease, all such trade fixtures
shall become the property of Landlord unless Landlord elects to require their
removal, in which case Tenant shall at its cost or expense promptly remove same
and restore the premises to their prior condition.
Section 6.05 Construction of Building Extension. Notwithstanding
any provisions of this agreement to the contrary, Tenant shall have the right
to use the Premises in all ways reasonably necessary for purposes of
constructing the Building Extension and to modify the Premises as contemplated
by the Plans; provided that: (a) the Plans shall not be materially modified
without Landlord's prior written approval, which shall not be unreasonably
withheld; (b) the Building Extension shall be constructed in a good, careful,
and
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workmanlike manner and in accordance with (i) the Plans (including any
modifications approved by Landlord), (ii) all applicable laws, ordinances,
regulations, building codes, approvals, permits, and licenses, (iii) the
requirements of the National Board of Fire Underwriters and Landlord's or
Tenant's insurance carriers, and (iv) the requirements of any mortgagees of the
Premises; (c) Tenant shall complete construction of the Building Extension
within a reasonable time after commencement of such construction; (d) Tenant
shall promptly pay all costs and expenses attributable to construction of the
Building Extension and shall indemnify Landlord against any mechanics' liens or
other liens or claims filed or asserted as a result thereof and against any
costs or expenses which may be incurred as a result of building code violations
attributable to such work; (e) Tenant shall promptly repair any damage to the
Premises (which shall not be deemed to include any alterations contemplated by
the Plans) caused by any construction of the Building Extension; and (f) during
construction of the Building Extension, Tenant shall carry or cause to be
carried adequate workman's compensation, builder's risk, and liability
insurance, together with any other insurance required by law.
ARTICLE VII - FIRE OR OTHER CASUALTY; CASUALTY INSURANCE
Section 7.01 Destruction of the Premises. If all or any part of
the Premises should be damaged by fire or other casualty, then such damaged
part of the Premises shall be reconstructed and restored, at Landlord's
expense, to substantially the same condition as it was in prior to the
casualty; provided that, if Tenant has made any additional improvements
pursuant to Section 6.03 or 6.05, Tenant shall reimburse Landlord for the cost
and expense of reconstructing the same. In such event, if the Building is
damaged and that damage is expected to prevent Tenant from carrying on its
business on the Premises to an extent exceeding 30% of its normal compact disc
manufacturing operations on the Premises, rent shall be abated in the
proportion which the approximate area of the damaged part of the Building bears
to the total area of the Building from the date of the casualty until the
reconstruction repairs have been completed to an extent which allows Tenant to
resume substantially full operation of its normal audio compact disc
manufacturing operations on the Premises; provided that if, and to the extent
that, the interruption of Tenant's business is covered by business interruption
insurance which includes coverage for the rent which would otherwise be abated
under the terms of this section, such rent shall not be abated and Tenant shall
pay that portion of the proceeds of its business interruption insurance which
represents rent payable by Tenant to Landlord, if any, to Landlord within not
more than 10 days following receipt of the same. Subject to the preceding
sentence, this agreement shall continue in full force and effect for the
balance of the term notwithstanding any casualty or damage. Landlord shall use
reasonable diligence in completing
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reconstruction repairs required by this section, but in the event Landlord
fails to complete the same within 90 days from the date of the casualty, Tenant
may, at its option, terminate this agreement upon giving Landlord written
notice to that effect, whereupon both parties shall be released from all
further obligations and liability hereunder.
Section 7.02 Casualty Insurance. Landlord shall be responsible
for insuring and shall at all times during the term of this agreement carry, a
policy of insurance which insures the Premises against loss or damage by fire
or other casualty deemed appropriate by Landlord; provided that Landlord shall
not be responsible for, and shall not be obligated to insure against, any loss
of or damage to any personal property of Tenant which Tenant may have on the
Premises or any trade fixtures installed by or paid for by Tenant on the
Premises, or any additional improvements which Tenant may construct on the
Premises, as provided in Section 6.02 or Section 6.05, or any loss of business
by Tenant. Tenant shall reimburse Landlord for the cost of all insurance
purchased by Landlord pursuant to this section as additional rent after being
separately billed therefor.
Section 7.03 Waiver of Subrogation. Landlord and Tenant hereby
release each other and each other's employees, agents, customers and invitees
from any and all liability for any loss, damage, or injury to person or
property occurring in, on or about or to the Premises, improvements to the
Building, or personal property within the Building by reason of fire or other
casualty which could be insured against under a standard fire and extended
coverage insurance policy, regardless of cause, including the negligence of
Landlord or Tenant or their employees, agents, customers and invitees. Because
the provisions of this section preclude the assignment of any claim mentioned
herein by way of subrogation or otherwise to an insurance company or any other
person, each party to this agreement shall give to each insurance company which
has issued to it one or more policies of fire and extended coverage insurance
notice of the terms of the mutual releases contained in this section and have
such insurance policies properly endorsed, if necessary, to prevent the
invalidation of insurance coverages by reason of these mutual releases.
Section 7.04 Personal Property, Trade Fixtures and Additional
Improvements. Notwithstanding Landlord's obligations as provided in Section
Section 7.02, Tenant shall bear the sole risk of any loss of or damage to any
personal property (including but not limited to, any furniture, machinery,
equipment, goods, or supplies) owned or leased by Tenant or which Tenant may
have on the Premises, or any trade fixtures installed by or paid for by Tenant
on the Premises, or any additional improvements which Tenant may construct on
the Premises; and Landlord shall not be liable for any such loss or damage,
regardless of cause, including the negligence of Landlord, its employees, or
agents.
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ARTICLE VIII - GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE
Section 8.01 Tenant's Responsibility. Tenant shall assume the
risk of, be responsible for, have the obligation to insure against, and
indemnify Landlord and hold him harmless from any and all liability for any
loss, damage, or injury to person or property occurring in, on or about the
Premises, regardless of cause, and Tenant hereby releases Landlord from any and
all liability for the same. Tenant's obligation to indemnify Landlord shall
include the duty to defend against any claims asserted by reason of such loss,
damage, or injury and to pay any judgments, settlements, costs, fees, and
expenses, including attorneys' fees, incurred in connection therewith. Tenant
shall bear the sole risk of any loss of or damage to its property as provided
in Section 7.04.
Section 8.02 Tenant's Insurance. Tenant, in order to enable it to
meet its obligation to insure against the liabilities specified in this
agreement, shall at all times during the term of this lease carry, at its own
expense, for the protection of Tenant and Landlord, as their interests may
appear, one or more policies of general public liability and property damage
insurance, issued by one or more insurance companies acceptable to Landlord,
with the following minimum coverages or such greater amounts as Landlord may
reasonably request:
(a) Worker's compensation, minimum statutory amount;
(b) Comprehensive general liability insurance, including
blanket contractual liability, broad form property damage, personal
injury, completed operations, products liability, and fire damage, for
not less than $1,000,000 combined single limit for both bodily injury
and property damage; and
(c) Fire and broad form extended coverage, vandalism and
malicious mischief, and sprinkler leakage insurance, for the full cost
of replacement of Tenant's property and fixtures located in the
Premises.
Tenant shall furnish Landlord and its designees with original or
certified copies of each insurance policy maintained under this section,
including renewal or replacement policies, and certificates of coverage and
evidence of Premium payments thereon as requested by Landlord from time to
time, provided that Landlord shall be under no duty either to ascertain that
any such policies exist, to examine any such policies or certificates, or to
advise Tenant whether or not any such policies comply with this agreement.
Each insurance policy maintained under this section shall be issued by a
responsible insurance company approved by Landlord; shall name
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Landlord, the Mortgagees (defined in Article XII), and any other designees of
Landlord as insured parties therein; shall provide that the insurer waives its
rights of subrogation against Landlord, the Mortgagees, and any other designees
of Landlord with respect to any claims thereunder; shall provide that no act or
omission (negligent or otherwise) of Landlord, Tenant, or others shall limit or
otherwise affect the insurer's obligation to pay Landlord, the Mortgagees, and
any other designees of Landlord all amounts which otherwise would be payable to
it or them thereunder; shall provide for written notice to Landlord, the
Mortgagees, and any other designees of Landlord at least 30 days prior to any
cancellation, expiration without renewal, or modification thereof and shall be
in form and substance satisfactory to Landlord.
ARTICLE IX - EMINENT DOMAIN
If the whole or any part of the Premises shall be taken for public or
quasi-public use by a governmental or other authority having the power of
eminent domain or shall be conveyed to such authority in lieu of such taking,
and if such taking or conveyance shall cause the remaining part of the Premises
to be untenantable and inadequate for use by Tenant for the purpose for which
they were leased, then Tenant may, at its option, terminate this lease as of
the date Tenant is required to surrender possession of the Premises. If a part
of the Premises shall be taken or conveyed but the remaining part is tenantable
and adequate for Tenant's use as reasonably agreed by Tenant and Landlord, then
this lease shall be terminated as to the part taken or conveyed as of the date
Tenant surrenders possession; Landlord shall make such repairs, alterations,
and improvements as may be necessary to render the part not taken or conveyed
tenantable; and the rent shall be reduced in proportion to the part of the
Premises so taken or conveyed. All compensation awarded for such taking or
conveyance shall be the property of Landlord without any deduction therefrom
for any present or future estate of Tenant, and Tenant hereby assigns to
Landlord all of its right, title, and interest in and to any such award.
However, Tenant shall have the right to recover from such authority, but not
from Landlord, such compensation as may be awarded to Tenant on account of
moving and relocation expenses and depreciation to and removal of Tenant's
trade fixtures and personal property to the extent such compensation does not
reduce any amount otherwise payable to Landlord.
ARTICLE X - LIENS
If, because of any act or omission of Tenant or anyone claiming by,
through, or under Tenant, any mechanic's lien or other lien shall be filed
against the Premises or against other property of Landlord (whether or not such
lien is valid or enforceable as such), Tenant shall, at its own expense, cause
the same to be
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discharged of record within a reasonable time, not to exceed 30 days, after the
date of filing thereof, and shall also indemnify Landlord and hold it harmless
from any and all claims, losses, damages, judgments, settlements, costs, and
expenses, including attorneys' fees, resulting therefrom or by reason thereof.
ARTICLE XI - RENTAL, PERSONAL PROPERTY AND OTHER TAXES
Tenant shall pay before delinquency any and all taxes, assessments,
fees, or charges, including any sales, gross income, rental, business
occupation, or other taxes, levied or imposed upon Tenant's business operations
in the Premises and any personal property or similar taxes levied or imposed
upon Tenant's trade fixtures, leasehold improvements, or personal property
located within the Premises. In the event any such taxes, assessments, fees,
or charges are charged to the account of, or are levied, or imposed upon the
property of, Landlord, Tenant shall reimburse Landlord for the same as
additional rent. Notwithstanding the foregoing, Tenant shall have the right to
contest in good faith any such item and to defer payment, if required, until
after Tenant's liability therefor is finally determined.
ARTICLE XII - ASSIGNMENT AND SUBLETTING
Tenant shall not assign, transfer, or otherwise encumber this
agreement or sublet or rent (or permit occupancy or use of) the Premises, or
any part thereof, without obtaining the prior written consent of Landlord,
which may be subject to the consent of any persons or entities now or hereafter
having a mortgage interest in the Building (the "Mortgagees"), nor shall any
assignment or transfer of this agreement or the right of occupancy hereunder be
effectuated by operation of law or otherwise without the prior written consent
of Landlord. In the event that any Mortgagee shall accede to the rights or
obligations of Landlord hereunder, through foreclosure or otherwise, such
consent shall be granted only at the discretion of such Mortgagee. The consent
by Landlord to any assignment or subletting shall not be construed as a waiver
or release of Tenant from the terms of any covenant or obligation under this
agreement, nor shall the collection or acceptance of rent from any such
assignee, subtenant, or occupant constitute a waiver or release of Tenant of
any covenant or obligation contained in this agreement, nor shall any
assignment or subletting be construed to relieve Tenant from obtaining the
consent in writing of Landlord to any further assignment or subletting. In the
event that Tenant defaults hereunder, Tenant hereby assigns to Landlord the
rent due from any subtenant or Tenant and hereby authorizes each such subtenant
to pay said rent directly to Landlord.
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In no event shall Tenant be entitled to any proceeds of an approved
sublease or assignment resulting from Tenant charging a higher rent than it is
obligated to pay to Landlord under the provisions of this agreement. Any such
proceeds shall become the property of Landlord.
ARTICLE XIII - TRANSFER BY LANDLORD
Section 13.01 Sale and Conveyance of the Premises. Subject to the
Provisions of Article XIV of this agreement, Landlord shall have the right to
sell and convey the Premises at any time during the term of this agreement,
subject only to the rights of Tenant hereunder; and such sale and conveyance
shall operate to release Landlord from liability hereunder after the date of
such conveyance.
Section 13.02 Subordination. This agreement is subject and
subordinate to the lien of any and all mortgages which may now or hereafter
encumber or otherwise affect the Premises and to all and any renewals,
extensions, modifications, recastings, or refinancings thereof. In
confirmation of such subordination, Tenant shall, at Landlord's request,
promptly execute any requisite or appropriate certificate or other document.
Tenant hereby constitutes and appoints Landlord as Tenant's attorney-in-fact to
execute any such certificate or other document for or on behalf of Tenant.
Tenant agrees that in the event that any proceedings are brought for the
foreclosure of any such mortgage, or if any deed in lieu of foreclosure or
other conveyance shall be given by Landlord in respect thereto, Tenant shall
attorn to purchaser at such foreclosure sale or the transferee of such
conveyance, if so requested by such purchaser or transferee, and to recognize
such purchaser or transferee as Landlord under this agreement, and Tenant
waives the provisions of any statute or rule of law, now or hereafter in
effect, which may give or purport to give Tenant any right to terminate or
otherwise adversely affect this agreement and the obligations of Tenant
hereunder in the event that any such foreclosure or other proceeding is
prosecuted or completed. Tenant shall execute such agreements and other
documents as may be reasonably requested by Landlord and the holder of any such
mortgage to confirm the subordination and attornment described in this section
or otherwise to carry out the purposes and intent of this section.
ARTICLE XIV - TENANT'S PURCHASE OPTION
Section 14.01 Unrestricted Purchase Option. Tenant shall have the
right and option, exercisable at any time during the term of this agreement, to
purchase the premises for a purchase price equal to the lesser of $4,800,000 or
the Fair Value of the Premises (defined below) as of the date Tenant exercises
such purchase option. In
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order to exercise such purchase option, Tenant shall give written notice to
Landlord, stating in substance that Tenant thereby exercises its purchase
option under this section, at any time during the term of this agreement.
If Tenant exercises its purchase option under this section, the
purchase and sale of the Premises shall be completed pursuant to the terms and
conditions of a Real Estate Purchase Agreement substantially in the form of the
attached Exhibit C (the "Purchase Agreement"), which shall be executed by the
Parties promptly following determination of the Fair Value of the Premises.
For purposes of this agreement: (a) the "Fair Value" of the Premises
as of any date shall mean the value in use of the Premises (including without
limitation the then-current market value of the Land), as established by an
appraisal performed by the Appraiser (defined below), less $660,000, provided
that such value in use shall be established, to the extent possible, without
consideration of any improvements, alterations, or additions made by Tenant in,
on, or to the Premises after January 1, 1994 (the "Tenant Additions"),
including without limitation the Building Extension, or the amount of any
related costs or expenses paid by Tenant; and (b) the "Appraiser" shall mean an
MAI appraiser familiar with the commercial real estate market in Central Ohio,
retained and paid by Tenant, which appraiser shall be selected (i) by agreement
of the Parties, if they are able to agree on an appraiser within 10 days after
either Party requests the other Party to agree on an appraiser identified by
the requesting Party, or (ii) if the Parties are unable to so agree prior to
the end of such 10-day period, by Tenant from a list of three such appraisers
provided by Landlord, which list shall be provided by Landlord (if the Parties
are unable to agree) promptly following the expiration of such 10-day period.
The parties shall provide the Appraiser with such information as may be
reasonably necessary for the Appraiser to perform the appraisal required under
this section, including without limitation information identifying the Tenant
Additions and information regarding the cost of all improvements on the Land
other than the Tenant Additions, together with such additional information as
the Appraiser may reasonably request.
Section 14.02 Right of First Refusal. If at any time during the
term of this agreement Landlord receives a bona fide offer to purchase the
Premises which Landlord desires to accept (the "Purchase Offer"), then Landlord
shall deliver to Tenant a copy of the Purchase Offer. Tenant shall have 30
days from its receipt of the Purchase Offer to elect to purchase the Premises
on the same terms and conditions as contained in the Purchase Offer by giving
written notice to Landlord of Tenant's election; provided that if no broker's
commission would be payable by Landlord as a result of a sale to the purchaser
identified in the Purchase Offer, then the
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<PAGE> 15
purchase price payable by Tenant shall be reduced by an amount equal to the
typical and customary commission which Landlord would then be charged by a
commercial real estate broker, provided that such amount shall not be less than
3% of the purchase price specified in the Purchase Offer. Tenant's failure to
notify Landlord of Tenant's election to purchase the Premises under this
section within such 30-day period shall constitute Tenant's election not to
purchase the Premises.
If Tenant elects to purchase the Premises under this section, the
closing of Tenant's purchase shall take place within 90 days after Tenant's
notice to Landlord, at a time and place reasonably designated by Landlord. If
Tenant elects not to purchase the Premises, then Landlord shall have the right
to sell the Premises to the purchaser named in the Purchase Offer on the terms
and conditions contained therein. If Landlord completes sale of the Premises
to such purchaser in accordance with the previous sentence, then Tenant's
rights under this Article XIV shall cease and terminate automatically. If for
any reason Landlord fails to complete the sale of the Premises to the purchaser
pursuant to the terms and conditions contained in the Purchase Offer, Tenant's
rights under this Article XIV shall continue to apply to any change in the
Purchase Offer (which shall be treated the same as a new offer) and to any
subsequent offers to purchase the Premises received by Landlord.
Section 14.03 Termination of Lease. If Tenant purchases the
Premises pursuant to this Article XIV, then this agreement shall terminate
automatically as of the closing of such purchase; provided that such
termination shall not relieve either Party of any obligations or liabilities to
the other Party which exist at or are based upon acts or omissions occurring
prior to such closing.
Section 14.04 Commissions. To the extent that any commissions,
fees, or other payments are due to any other person as a result of Tenant's
purchase of the Premises pursuant to this agreement, each Party shall be
responsible for those which it incurs, shall not be responsible for those
incurred by the other Party, and shall indemnify the other Party in the event
that any such claim is made as a result of his or its actions.
Section 14.05 Tenant's Inspection Rights. During the term of this
agreement, Tenant, its employees and agents, shall have the right to make such
environmental or other surveys, soil tests, engineering studies, and other
reviews, investigations, and inspections as Tenant reasonably deems necessary
or appropriate in connection with its possible purchase of the Premises;
provided that Tenant shall (a) indemnify and hold Landlord harmless from all
liabilities, losses, damages, injuries, costs, and expenses arising out of or
in any way connected with claims attributable to such
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inspections or other activities, and (b) repair any material damage to the
Premises resulting from any such inspections or other activities.
Section 14.06 Survival. The provisions of this Article XIV shall
survive the expiration or termination of this agreement to the extent necessary
to carry out the purposes and intent of this article.
ARTICLE XV - DEFAULTS AND REMEDIES
Section 15.01 Defaults by Tenant. The occurrence of any one or
more of the following events shall be a default and breach of this agreement by
Tenant:
(a) Tenant shall fail to pay any monthly installment of
Base Rent, any additional rent or any other amount payable by Tenant
under this agreement within 5 days after the same shall be due and
payable.
(b) Tenant shall fail to perform or observe any term,
condition, covenant, or obligation required to be performed or
observed by it under this agreement for a period of 30 days after
notice thereof from Landlord; provided that if the term, condition,
covenant, or obligation to be performed by Tenant is of such nature
that the same cannot reasonably be performed within such 30-day
period, such default shall be deemed to have been cured if Tenant
commences such performance within said 30-day period and thereafter
diligently completes the same.
(c) Tenant shall vacate or abandon, or fail to occupy for
a period of 30 days, the Premises or any substantial portion thereof.
(d) A trustee or receiver shall be appointed to take
possession of substantially all of Tenant's assets in, on or about the
Premises or of Tenant's interest in this agreement (and Tenant does
not regain possession within 60 days after such appointment); Tenant
makes an assignment for the benefit of creditors; or substantially all
of Tenant's assets in, on, or about the Premises or Tenant's interest
in this agreement is attached or levied upon under execution (and
Tenant does not discharge the same within 60 days thereafter.)
(e) A petition in bankruptcy, insolvency, or for
reorganization or arrangement is filed against Tenant pursuant to any
federal or state statute and, with respect to any such petition filed
against it, Tenant fails to secure a stay or discharge thereof within
60 days after the filing of the same.
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Section 15.02 Remedies of Landlord. Upon the occurrence of any
event of default set forth in Section 15.01, Landlord shall have the following
rights and remedies, in addition to those allowed by law, any one or more of
which may be exercised without further notice to or demand upon Tenant:
(a) Landlord may reenter the Premises and cure any
default of Tenant, in which event Tenant shall reimburse Landlord as
additional rent for any cost and expense which Landlord may incur to
cure such default; and Landlord shall not be liable to Tenant for any
loss or damage which Tenant may sustain by reason of Landlord's
action, regardless of whether caused by Landlord's negligence or
otherwise.
(b) Landlord may terminate this agreement as of the date
of such default, in which event: (i) neither Tenant nor any person
claiming under or through Tenant shall thereafter be entitled to
possession of the Premises, and Tenant shall immediately thereafter
surrender the Premises to Landlord; (ii) Landlord may re-enter the
Premises and dispossess Tenant or any other occupants of the Premises
by force, summary proceedings, ejectment, or otherwise, and may remove
their effects, without prejudice to any other remedy which Landlord
may have for possession or arrearages in rent; and (iii)
notwithstanding the termination of this agreement (A) Landlord may
declare all rent which would have been due under this agreement for
the balance of the term to be immediately due and payable, whereupon
Tenant shall be obligated to pay the same to Landlord, together with
all loss or damage which Landlord may sustain by reason of such
termination and re-entry, or (B) Landlord may relet all or any part of
the Premises for a term different from that which would otherwise have
constituted the balance of the term of this lease and for rent and on
terms and conditions different from those contained herein, whereupon
Tenant shall immediately be obligated to pay to Landlord as liquidated
damages the difference between the rent provided for herein and that
provided for in any lease covering a subsequent reletting of the
Premises, for the period in which would otherwise have constituted the
balance of the term of this lease, together with all of Landlord's
costs and expenses for preparing the Premises for reletting, including
all repairs, broker's and attorney's fees, and all loss or damage
which Landlord may sustain by reason of such termination, reentry, and
reletting, it being expressly understood and agreed that the
liabilities and remedies specified in clauses (A) and (B) hereof shall
survive the termination of this agreement.
(c) Landlord may sue for injunctive relief or to recover
damages for any loss resulting from the breach.
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Section 15.03 Default by Landlord and Remedies of Tenant. It shall
be a default and breach of this agreement by Landlord if it shall fail to
perform or observe any term, condition, covenant, or obligation required to be
performed or observed by it under this agreement for a period of 30 days after
notice thereof from Tenant; provided, however, that if the term, condition,
covenant, or obligation to be performed by Landlord is of such nature that the
same cannot reasonably be performed within such 30-day period, such default
shall be deemed to have been cured if Landlord commences such performance
within said 30-day period and thereafter diligently undertakes to complete the
same. Upon the occurrence of any such default, Tenant may sue for injunctive
relief or to recover damages for any loss resulting from the breach, but Tenant
shall not be entitled to terminate this agreement or withhold or abate any rent
due hereunder.
Tenant agrees to give any mortgagee(s) and/or trust deed
holder(s), by registered mail, a copy of any notice of default served upon
Landlord, provided that prior to such notice Tenant has been notified in
writing (by way of notice of assignment of rents and leases, or otherwise) of
the addresses of such mortgagee(s) and/or trust deed holder(s). Tenant further
agrees that if Landlord shall have failed to cure such default within the time
provided for in this agreement, then the mortgagee(s) and/or trust deed
holder(s) shall have an additional 30 days within which to cure such default or
if such default cannot be cured within that time, then such additional time as
may be necessary to cure such default shall be granted if within such 30 days
any mortgagee and/or trust deed holder has commenced and is diligently pursuing
the remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings if necessary to effect such cure), in
which event this agreement shall not be terminated while such remedies are
being so diligently pursued.
In the event of a sale or transfer of the Building, the
"Landlord" named herein, or, in the case of a subsequent transfer, the
transferor, shall, after the date of such transfer, be automatically released
from all personal liability for the performance or observance of any term,
condition, covenant or obligation required to be performed or observed by
Landlord hereunder; and the transferee shall be deemed to have assumed all of
such terms, conditions, covenants and obligations, it being intended hereby
that such terms, conditions, covenants and obligations shall be binding upon
Landlord, its successors and assigns, only during and in respect of their
successive periods of ownership during the term of this agreement.
Section 15.04 Nonwaiver of Defaults. The failure or delay by
either party hereto to enforce or exercise at any time any of the rights or
remedies or other provisions of this agreement shall not
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be construed to be a waiver thereof, nor affect the validity of any part of
this agreement or the right of either party thereafter to enforce each and
every such right or remedy or other provisions. No waiver of any default and
breach of this agreement shall be held to be a waiver of any other default and
breach. The receipt by Landlord of less than the full rent due shall not be
construed to be other than a payment on account of rent then due, nor shall any
statement on Tenant's check or any letter accompanying Tenant's check be deemed
an accord and satisfaction, and Landlord may accept such payment without
prejudice to Landlord's right to recover the balance of the rent due or to
pursue any other remedies provided in this agreement. No act or omission by
Landlord or its employees or agents during the term of this lease shall be
deemed an acceptance of a surrender of the Premises, and no agreement to accept
such a surrender shall be valid unless in writing and signed by Landlord.
Section 15.05 Attorneys' Fees. In the event Tenant defaults in the
performance or observance of any of the terms, conditions, covenants, or
obligations contained in this agreement and Landlord places the enforcement of
all or any part of this agreement, the collection of any rent due or to become
due, or the recovery of possession of the Premises in the hands of an attorney,
Tenant agrees to reimburse Landlord for the attorney's fees incurred thereby,
whether or not suit is actually filed.
Section 15.06 Litigation. If Landlord is made a party to any
litigation commenced against Tenant or commenced by Tenant against any party
other than Landlord, then Tenant shall pay all costs and expenses (including
reasonable attorneys' fees) incurred or imposed upon Landlord in connection
with such litigation.
ARTICLE XVI - LEASEHOLD FINANCING
Section 16.01 Financing. Tenant shall have the right to mortgage
its leasehold interest hereunder (the "Leasehold Mortgage") without Landlord's
further consent for the benefit of any institutional lender (a "Leasehold
Mortgagee") to secure a mortgage loan to Tenant. Any Leasehold Mortgagee, its
successors and assigns, shall have the following rights:
(a) So long as the Leasehold Mortgage is in effect, and
if Landlord shall provide simultaneous written notice, by certified
mail, postage prepaid, to Tenant and to the Leasehold Mortgagee of any
default by Tenant claimed by Landlord under this agreement, Landlord
will accept the cure by the Leasehold Mortgagee of any such default if
made by the Leasehold Mortgagee within 15 days after the expiration of
the
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notice and cure period, if any, provided to Tenant in Article XV of
this agreement or within 30 days after notice to the Leasehold
Mortgagee, if Tenant has no notice and cure period, or if such default
cannot reasonably be cured within such 30-day period, then within such
additional period, not to exceed 30 days, if the Leasehold Mortgagee
promptly commences the cure and diligently completes the cure. The
Leasehold Mortgagee shall have no obligation, however, to cure
Tenant's default. Insolvency or bankruptcy of Tenant or failure to
furnish financial statements or other defaults personal to Tenant and
not susceptible to cure by Leasehold Mortgagee shall not be deemed a
default under this Lease as to Leasehold Mortgagee, so long as
Leasehold mortgagee timely cures all other defaults reasonably
susceptible to cure by Leasehold Mortgagee.
(b) If the Leasehold Mortgagee timely cures those of
Tenant's defaults reasonably susceptible to cure by the Leasehold
Mortgagee, Landlord shall not terminate this Lease so long as the
Tenant's obligations are being timely performed and foreclosure
proceedings or proceedings in lieu thereof are being diligently
prosecuted. Upon completion of such proceedings, Landlord shall
recognize the Leasehold Mortgagee or any successor purchaser as the
new "tenant," upon receipt of a written assumption of this agreement.
Landlord waives any prohibition on assignment in such event.
(c) In the event that this Lease is terminated by
operation of law or rejected by a trustee in bankruptcy, then upon the
Leasehold Mortgagee's written request, Landlord shall enter into a new
lease with the Leasehold Mortgagee on the same terms for the remainder
of the lease term.
(d) This agreement may not hereafter be terminated or
amended in any material respect without the prior written consent of
the Leasehold Mortgagee. Landlord shall not accept a surrender of the
leasehold estate or any portion thereof without Leasehold Mortgagee's
prior written consent.
(e) Upon written request from the Leasehold Mortgagee,
Landlord shall promptly provide a written statement acknowledging that
this agreement is in full force and effect without default or
modification (if and to the extent that such statements are then
correct).
(f) Notwithstanding any provision in this agreement to
the contrary, in the event of a casualty to the Premises while the
Leasehold Mortgage is in effect, the insurance proceeds or
condemnation award shall be applied to restore the Premises,
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and this agreement shall not be terminated, unless the Leasehold
Mortgagee agrees otherwise in writing.
(g) Without the prior written consent of Leasehold
Mortgagee, the leasehold estate created by this agreement shall not
merge with the fee simple estate in the Premises upon union of such
estates in one person.
ARTICLE XVII - NOTICE AND PLACE OF PAYMENT
Section 17.01 Notices. Any notice required or permitted to be
given under this agreement or by law shall be in writing and shall be deemed
given when delivered in person or mailed by registered or certified mail,
postage prepaid, to the Party who is to receive such notice at the address for
such Party specified in Item D of the Basic Lease Provisions. When so mailed,
the notice shall be deemed to have been given as of the date it was mailed.
Either Party may change its address for notices specified in Item D of the
Basic Lease Provisions at any time by giving written notice thereof to the
other Party.
Section 17.02 Place of Payment. All rent and other payments
required to be made by Tenant to Landlord shall be delivered or mailed to
Landlord at the address specified in Item D of the Basic Lease Provisions or
any other address Landlord may specify from time to time by written notice
given to Tenant.
ARTICLE XVIII - MISCELLANEOUS GENERAL PROVISIONS
Section 18.01 Definition of Rent. Any amounts of money to be paid
by Tenant to Landlord pursuant to the provisions of this agreement, whether or
not such payments are denominated "rent", "additional rent", other costs or
expenses, and whether or not they are to be periodic or recurring, shall be
deemed "rent" or "additional rent" for purposes of this agreement; and any
failure to pay any of the same as provided in Section 15.01 hereof shall
entitle Landlord to exercise all of the rights and remedies afforded hereby by
law for the collection and enforcement of Tenant's obligation to pay rent.
Tenant's obligation to pay any such rent pursuant to the provisions of this
agreement shall survive the expiration or other termination of this lease and
the surrender of possession of the Premises after any hold over period.
Section 18.02 Estoppel Certificate. Tenant agrees, at any time and
from time to time, upon not less than five days prior written notice by
Landlord, to execute, acknowledge, and deliver to Landlord a statement in
writing (i) certifying that this agreement is unmodified and in full force and
effect (or if there have been modifications), (ii) stating the dates to which
the rent and any other charges hereunder have been paid by Tenant, (iii)
stating
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whether or not to the best knowledge of Tenant, Landlord is in default in the
performance of any covenant, agreement, or condition contained in this
agreement, and if so, specifying each such default of which Tenant may have
knowledge, and (iv) stating the address to which notices to Tenant should be
sent. Any such statement delivered pursuant hereto may be relied upon by any
owner of the Building or the land, any prospective purchaser of the Building or
the land, any mortgagee or prospective mortgagee of the Building or the land or
of Landlord's interest in either, or any prospective assignee of any such
mortgagee.
Section 18.03 Indemnification for Leasing Commissions. Each party
hereto shall indemnify and hold harmless the other party for any and all
liability incurred in connection with the negotiation or execution of this
agreement for any real estate broker's leasing commission or finder's fee which
has been earned by a real estate broker or other person who was or claims to
have been acting on such party's behalf or whose initial contact was with such
party.
Section 18.04 Governing Law. This agreement is being executed and
delivered by Landlord in the State of Ohio and shall be construed and enforced
in accordance with the laws of that state.
Section 18.05 Successors and Assigns. Subject to the restrictions
on transfer and assignment contained in this agreement, this agreement and the
respective rights and obligations of the parties hereto shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto
as well as the parties themselves; provided that Landlord, its successors, and
assigns shall be obligated to perform Landlord's covenants under this agreement
only during and in respect of their successive periods of ownership during the
term of this agreement.
Section 18.06 Severability of Invalid Provisions. If any provision
of this agreement shall be held to be invalid, void, or unenforceable, the
remaining provisions hereof shall not be affected or impaired, and such
remaining provisions shall remain in full force and effect.
Section 18.07 Definition of the Relationship between the Parties.
Landlord shall not, by virtue of the execution of this agreement or the leasing
of the Premises to Tenant, become or be deemed a partner of or joint venturer
with Tenant in the conduct of Tenant's business on the Premises or otherwise.
Section 18.08 Certain Words, Gender and Headings. As used in this
agreement, the word "person" shall mean and include, where appropriate, an
individual, corporation, partnership or other entity; the plural shall be
substituted for the singular and the singular for the plural, where
appropriate; and words of any gender shall
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include any other gender. The topical headings of the several paragraphs of
this agreement are inserted only as a matter of convenience and reference, and
do not affect, define, limit or describe the scope or intent of this agreement.
Section 18.09 Quiet Enjoyment. If and so long as Tenant pays the
prescribed rent and performs or observes all of the terms, conditions,
covenants, and obligations of this agreement required to be performed or
observed by it hereunder, Tenant shall at all times during the term hereof have
the peaceable and quiet enjoyment, possession, occupancy, and use of the
Premises without any interference from Landlord or any person or persons
claiming the Premises by, through, or under Landlord, subject to any mortgages,
underlying leases, or other matters of record to which this agreement is or may
become subject.
Section 18.10 Complete Agreement; Amendments. This document,
(including all exhibits or other documents referred to herein, all of which are
hereby incorporated herein by reference), constitutes the entire agreement
between the Parties and supersedes all previous understandings and agreements
between the Parties, if any, regarding the subject matter of this agreement,
and no oral or implied representations or understandings shall vary its terms.
This agreement may not be amended except by a written instrument executed by
both Parties.
Section 18.11 Memorandum of Agreement. This agreement shall not be
recorded. However, at the request of either Party, the Parties shall execute,
acknowledge, and deliver a memorandum of this agreement, in form and substance
reasonably satisfactory to both Parties, pursuant to Section 5301.251, Ohio
Revised Code, and with respect to the provisions of Article XIV of this
agreement, for purposes of giving public notice of the rights and obligations
of the Parties under this agreement.
Section 18.12 Termination of Prior Agreements. The Guaranty and
the Option Agreement are hereby terminated and shall be of no further force or
effect.
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Section 18.13 Consistency of Agreements. In the event of any
inconsistency between the provisions of this agreement and the provisions of
either of the Agreements, the provisions of this agreement shall control.
Witnesses as to Landlord: LANDLORD:
/s/Kevin H. Connor
- -----------------------------
/s/Loraine M. Hanson /s/Jeffrey M. Wilkins
- ----------------------------- -------------------------------------
JEFFREY M. WILKINS
Witnesses as to Tenant: TENANT:
/s/Kevin H. Connor METATEC CORPORATION
- -----------------------------
/s/Mary Kay Connor By/s/William H. Largent
- ----------------------------- -----------------------------------
William H. Largent, Vice
President-Finance
STATE OF OHIO
COUNTY OF FRANKLIN
This document was acknowledged before me on April 13, 1994, by Jeffrey
M. Wilkins.
[NOTARY SEAL] /s/Kevin H. Connor
KEVIN H. CONNOR, Attorney at Law -------------------------------------
Notary Public - State of Ohio Notary Public
My Commission Has No Expiration
Section 147.03 R.C.
STATE OF OHIO
COUNTY OF FRANKLIN
This document was acknowledged before me on March 31, 1994, by William
H. Largent, the Vice President - Finance of Metatec Corporation, a Florida
corporation, on behalf of the corporation.
/s/Kevin H. Connor
-------------------------------------
Notary Public
[NOTARY SEAL] KEVIN H. CONNOR, Attorney at Law
Notary Public - State of Ohio
My Commission Has No Expiration
Section 147.03 R.C.
- 24 -
<PAGE> 25
TERMINATION OF DISCOVERY LEASE
The undersigned hereby terminate the Discovery Lease (as defined
above) effective as of March 1, 1994.
Signed and acknowledged in
the presence of:
/s/Kevin H. Connor /s/Jeffrey M. Wilkins
- ----------------------------- -------------------------------------
Print Name:__________________ Jeffrey M. Wilkins
/s/Loraine M. Hanson
- -----------------------------
Print Name:__________________
/s/Kevin H. Connor METATEC/DISCOVERY SYSTEMS, INC.
- -----------------------------
Print Name:__________________
/s/Loraine M. Hanson By /s/Jeffrey M. Wilkins
- ----------------------------- -----------------------------------
Print Name:__________________ Its President
----------------------------------
RELEASE OF DOWER RIGHTS
Julia Gard Wilkins, who is the spouse of Jeffrey M. Wilkins, hereby
consents to the foregoing Lease and agrees to execute the deed to be delivered
to Tenant (as defined above) in connection with Tenant's purchase of the
Premises (as defined above) pursuant to Article XIV of the foregoing agreement
to release her dower rights in the Premises.
Signed and acknowledged in
the presence of:
/s/Kevin H. Connor /s/Julia Gard Wilkins
- ------------------------------ -------------------------------------
Print Name:___________________ JULIA GARD WILKINS
/s/Loraine M. Hanson
- ------------------------------
Print Name:___________________
- 25 -
<PAGE> 26
CONSENT
The Huntington National Bank, which is the mortgagee of the Premises
(as defined above), hereby consents to this agreement, subject to the execution
by Landlord and Tenant of a reasonably satisfactory subordination,
nondisturbance, and attornment agreement.
THE HUNTINGTON NATIONAL BANK
April 13, 1994 By/s/Daniel W. Huffman
------------------------------------
Its Assistant Vice President
-----------------------------------
STATE OF OHIO
COUNTY OF FRANKLIN
The foregoing instrument was acknowledged before me on April 13, 1994,
by Julia G. Wilkins.
[NOTARY PUBLIC] /s/Kevin H. Connor
KEVIN H. CONNOR, Attorney at Law --------------------------------------
Notary Public - State of Ohio Notary Public
My Commission Has No Expiration
Section 147.03 R.C.
STATE OF OHIO
COUNTY OF FRANKLIN
The foregoing instrument was acknowledged before me on April 13,
1994, by Jeffrey M. Wilkins.
[NOTARY PUBLIC] /s/Kevin H. Connor
KEVIN H. CONNOR, Attorney at Law --------------------------------------
Notary Public - State of Ohio Notary Public
My Commission Has No Expiration
Section 147.03 R.C.
STATE OF OHIO
COUNTY OF FRANKLIN
This instrument was acknowledged before me on April 13, 1994, by
Jeffrey M. Wilkins, the President of Metatec/Discovery Systems, Inc., an Ohio
corporation, on behalf of the corporation.
[NOTARY PUBLIC] /s/Kevin H. Connor
KEVIN H. CONNOR, Attorney at Law --------------------------------------
Notary Public - State of Ohio Notary Public
My Commission Has No Expiration
Section 147.03 R.C.
- 26 -
<PAGE> 27
EXHIBIT A
LEGAL DESCRIPTION
Situated in the State of Ohio, County of Franklin, Village of Dublin, in
Virginia Military Survey No. 2999 and being a portion of an original 72.364
acre tract of land conveyed to Elizabeth M. Workman (50% interest), A. Glenn
McClelland (10% interest), W. Reed McClelland (10% interest), William S.
Guthrie (10% interest), John R. Warren (10% interest) subsequently upon his
death conveyed to Louise H. Warren by deed of record in Official Record 3018,
Page A03, Recorder's Office, Franklin County, Ohio), Emerson C. Wollam (5%
interest) and Emmerich VonHaam (5% interest) by deeds of record in Deed Book
3075, Page 53, and Deed Book 3602, Page 41, Recorder's Office, Franklin County,
Ohio, and bounded and described as follows:
Beginning, for reference, at a railroad spike found at the intersection of the
centerline of Post Road (60 feet wide) with the centerline of Wilcox Road (60
feet wide) and at the northwest corner of said original 72.364 acre tract;
thence S 2 degrees 56' 07" E along the centerline of Wilcox Road and along a
portion of the west line of said original 72.364 acre tract a distance of 518.00
feet to a railroad spike set at the true place of beginning of the tract herein
intended to be described;
thence N 87 degree 03' 53" E perpendicular to the centerline of Wilcox Road and
perpendicular to the west line of said original 72.364 acre tract a distance of
730.00 feet to a 3/4-inch I.D. iron pipe set in a curved west line of a proposed
street (60 feet wide) (passing a 3/4-inch I.D. iron pipe set in the east
right-of-way line of Wilcox Road at 30.00 feet);
thence southerly along a portion of a curved west line of said proposed street
and with a curve to the left, data of which is: radius = 2,080.00 feet and
sub-delta = 4 degree, 56' 03", a sub-chord distance of 179.07 feet bearing S 8
degree 24' 39" E to a 3/4-inch I.D. iron pipe set at the point of tangency;
thence S 10 degree 32' 41" E along a west line of said proposed street a
distance of 100.00 feet to a 3/4-inch I.D. iron pipe set at a point of
curvature;
thence southerly along a portion of a curved west line of said proposed street
and with a curve to the right, data of which is: radius = 1,070.00 feet and
sub-delta = 7 degree 40' 01", a sub-chord distance of 143.07 feet bearing S 7
degree 02' 41" E to a 3/4-inch I.D. iron pipe set;
thence S 87 degree 03' 53" W perpendicular to the centerline of Wilcox Road and
perpendicular to the west line of said original 72.364 acre tract a distance of
771.16 feet to a railroad spike set in the
<PAGE> 28
centerline of Wilcox Road and in the west line of said original 72.364 acre
tract (passing a 3/4-inch I.D. iron pipe set in the east right-of-way line of
Wilcox Road at 741.16 feet);
thence N 2 degree 56' 07" W along the centerline of Wilcox Road and along a
portion of the west line of said original 72.364 acre tract a distance of 420.00
feet to the true place of beginning;
containing 7.246 acres of land, more or less.
- 2 -
<PAGE> 29
EXHIBIT B
BUILDING RULES AND REGULATIONS
1. Landlord agrees to furnish Tenant with keys to the Premises.
No additional locks or bolts of any kind will be placed on doors or windows by
Tenant nor will any changes be made in existing locks or the mechanism thereof
without Landlord's permission. Tenant will, upon termination of its tenancy,
restore all keys to Landlord. If a lock is to be changed, Tenant shall contact
Landlord and Landlord shall make said change at Tenant's expense.
2. Tenant will refer all contractors, contractor's
representatives and installation technicians, rendering any service on or to
the Premises for Tenant, to Landlord for Landlord's approval before performance
of any contractual service. This provision shall apply to all work performed
in the Building including installation of telegraph equipment, electrical
devices, and attachments and installations of any nature affecting floors,
walls, woodwork, trim, windows, ceilings, and equipment of any physical portion
of the Building.
3. Tenant shall not at any time occupy any part of the Building
as sleeping or lodging quarters.
4. Tenant shall not place, install or operate in or on the
Premises any engine, stove or machinery, or conduct mechanical operations or
cook thereon or therein, or place or use in or about the leased premises any
explosives, gasoline, kerosene, oil, acids, caustics, or any inflammable,
explosive, or hazardous material without written consent of Landlord except as
normally involved in the process of compact disc manufacturing.
5. Landlord will not be responsible for lost or stolen personal
property, equipment, money, or jewelry from the Premises or any other area
regardless of whether such loss occurs when such area is locked against entry
or not.
6. No bicycles, vehicles or animals of any kind shall be brought
into or kept in or about the Building.
7. None of the entries, passages, doors, elevator, hallways or
stairways shall be blocked or obstructed, or any rubbish, litter, trash or
material of any nature placed, emptied or thrown into these areas, or such
areas be used at any time except for access or egress by Tenant, Tenant's
agents, employees, or invitees.
8. Movement in or out of the Premises of furniture, office
supplies, or equipment, or dispatch or receipt by Tenant of any merchandise or
materials, which requires use of the hallways between the loading dock and the
Premises, shall be at Landlord's sole discretion and restricted to the hours of
8:00 a.m. to
<PAGE> 30
5:00 p.m. on Monday through Friday or such hours as are otherwise designated by
Landlord. Tenant assumes, and shall indemnify Landlord against, all risks and
claims of damages to persons and properties arising in connection with any such
use of the hallways.
9. No awnings or other projections shall be attached to the
outside of the Building and no curtains, blinds, shades, or screens, other than
those provided by Landlord, will be used in connection with any window of the
Premises without the written consent of Landlord.
10. No advertisement or other lettering will be exhibited,
inscribed, painted or affixed on the outside or inside of the Building without
the written consent of Landlord. In the event of the violation of the
foregoing, Landlord may remove same without any liability and at the expense of
Tenant.
11. Canvassing, soliciting and peddling in the Building are
prohibited and Tenant shall cooperate to prevent the same.
<PAGE> 31
EXHIBIT C
REAL ESTATE PURCHASE AGREEMENT
This agreement is made _________________, 19__, between Jeffrey M.
Wilkins, whose address is 2481 Stonehaven Place, Upper Arlington, Ohio 43220
("Seller"), and Metatec Corporation, a Florida corporation, whose address is
7001 Discovery Boulevard, Dublin, Ohio 43017 ("Buyer"), who hereby agree as
follows:
Section 1. Purchase and Sale. On the terms and subject to the
conditions hereinafter set forth, Seller shall sell and convey to Buyer and
Buyer shall purchase from Seller a parcel of real property containing
approximately 7.246 acres located in Dublin, Ohio, as more fully described on
the attached Exhibit I, together with the approximately 55,000 square foot
building located thereon, and all other improvements thereon and appurtenances
thereto (collectively, the "Property").
Section 2. Purchase Price. The purchase price for the Property
shall be $___________. The purchase price (after all adjustments provided for
in this agreement) shall be paid by Buyer to Seller at the closing (as defined
in Section 3) by cash, bank cashier's check, or bank wire transfer, as selected
by Buyer.
Section 3. Closing and Possession. The closing shall be held
within 30 days after the date of this agreement at a time and place reasonably
designated by Seller (the "Closing"). Seller shall be entitled to possession
of the Property until the Closing, and Buyer shall be entitled to possession of
the Property at and after the Closing.
Section 4. Evidence of Title. At least five days prior to the
Closing, Seller shall furnish Buyer with a commitment for an owner's title
insurance policy in the amount of the purchase price. The title insurance
commitment shall show in Seller marketable fee-simple title to the Property
free and clear of all liens, encumbrances, restrictions, easements, and other
defects or claims except: (a) real estate taxes not then due and payable; (b)
zoning, ordinances; (c) existing rights-of-way; (d) rights of existing tenants
in possession of all or part of the Property; (e) easements, conditions, and
restrictions of record which do not unreasonably interfere with the present
lawful use of the Property; and (f) any other matters approved by Buyer. At
the Closing, or as soon thereafter as may be reasonably practicable, Seller
shall cause to be delivered to Buyer an owner's title insurance policy written
on such title insurance commitment.
Section 5. Deed. At the Closing, Seller shall convey the
Property to Buyer by a transferable and recordable general warranty deed,
transferring good and marketable fee-simple title to the Property to Buyer free
and clear of all liens, encumbrances, restrictions, easements, and other
defects except those described in Section 4, above.
<PAGE> 32
All approvals required from any governmental authority to permit the deed to be
recorded shall be obtained by Seller at his expense and stamped thereon prior
to Closing. Seller shall pay the conveyance fee relating to this transaction.
Section 6. Other Closing Documents. In addition to the deed
described in Section 5, at the Closing, Seller shall deliver to Buyer: (a) a
closing statement for the Property showing the purchase price and all charges
or credits to Buyer or Seller provided for herein; (b) all consents, affidavits
or other documents reasonably required by the title company to issue the policy
described in Section 4; (c) an affidavit that Seller is not a nonresident
"alien," "foreign corporation," "foreign partnership," "foreign trust," or
"foreign estate" within the meaning of the Internal Revenue Code and
regulations thereunder; (d) assignments of all leases between Seller and any
existing tenants in possession of all or part of the Property (the "Leases");
(e) assignments of all service and maintenance contracts relating to the
Property to which Seller is a party and which are assignable by Seller, if any
(the "Service Contracts"); and (f) any other documents required to be delivered
by Seller under this agreement which have not been delivered to Buyer prior to
the Closing. All such documents shall be in form and substance reasonably
satisfactory to Buyer.
At the Closing, Buyer shall deliver to Seller agreements
evidencing (i) Buyer's assumption of all obligations and liabilities of Seller
under the Leases and the Service Contracts from and after the Closing, and (ii)
Buyer's indemnification of Seller against any and all liabilities, claims,
damages, costs, and expenses arising out of any failure of Seller to perform or
satisfy any of such assumed obligations and liabilities. Such agreements shall
be in form and substance reasonably satisfactory to Seller.
Section 7. Taxes and Assessments. All real estate taxes on the
Property for the calendar year in which the Closing occurs shall be prorated
between Seller and Buyer to the date of the Closing. All real estate taxes on
the Property for any prior calendar years, including penalties and interest,
shall be paid in full by Seller. Seller shall pay any and all assessments,
charges and special taxes which are a lien on the Property at the date of the
Closing or which are attributable to improvements that have theretofore been
completed. For purposes of this agreement, any tax rates and property
valuations that are not determined at the time of the Closing shall be deemed
to be the same as the last determined tax rates and property valuations. If
Buyer so elects, any taxes and assessments that are to be prorated to or paid
by Seller under this section shall instead be credited upon the purchase price
at the Closing, and Buyer shall then take title to the Property subject to the
lien of such taxes and assessments.
Section 8. Rentals, Security Deposits, Interest, Insurance, and
Utilities. At least 10 days prior to the Closing, Seller shall provide Buyer
with copies of all Leases. At the Closing, Seller shall
<PAGE> 33
provide Buyer with estoppel certificates, in form and substance reasonably
satisfactory to Buyer, executed by the tenants under the Leases. All security
deposits for the Leases shall be transferred by Seller to Buyer.
All rental payments under the Leases, interest on any mortgage
assumed by Buyer, if any, and utility charges on the Property shall be prorated
between Seller and Buyer to the date of the Closing. If Buyer so elects, any
amounts to be prorated under this section shall instead be credited on the
purchase price at the Closing. If Buyer so elects, Seller shall assign to
Buyer all of his interest in any assignable insurance policy on the Property,
and adjustment shall be made through the date of Closing for any premiums paid
in advance or premiums payable under such policies.
Section 9. Damage or Destruction of Property. Risk of loss to
the Property shall be borne by Seller until Closing.
Section 10. Commissions. To the extent that any commissions,
fees, or other payments are due to any other person as a result of Buyer's
purchase of the Property pursuant to this agreement, each party shall be
responsible for those which it incurs, shall not be responsible for those
incurred by the other party, and shall indemnify the other party in the event
that any such claim is made as a result of his or its actions.
Section 11. Notices. Any notice or other communication required
or desired to be given to either party under this agreement shall be in writing
and shall be deemed given when: (a) delivered personally to that party; (b)
deposited in the United States mail, certified, with postage prepaid and return
receipt requested, addressed to that party at that party's address specified at
the beginning of this agreement, or at any other address hereafter designated
by that party in notice theretofore given to the other party; or (c) delivered
to that party at that party's address specified at the beginning of this
agreement, or at any other address hereafter designated by that party in notice
theretofore given to the other party, by any express mail or other over-night
delivery service.
Section 12. Governing Law. All questions concerning the validity
or meaning of this agreement or relating to the rights and obligations of the
parties with respect to performance under this agreement shall be construed and
resolved under the laws of Ohio.
Section 13. Complete Agreement. This agreement (including its
exhibits) contains the entire agreement between the parties and supersedes all
prior or contemporaneous discussions, negotiations, representations, or
agreements relating to the subject matter of this agreement. No changes to
this agreement shall be made or be binding on any party unless made in writing
and signed by each party to this agreement.
<PAGE> 34
Section 14. Incorporation of Exhibits. Each exhibit referred to
in this agreement is hereby incorporated herein by reference.
Section 15. Captions. The captions of the various sections of
this agreement are not part of the context of this agreement, but are only
labels to assist in locating those sections, and shall be ignored in construing
this agreement.
Section 16. Assignment; Successors in Interest. This agreement
shall be personal to both parties and no rights or obligations under this
agreement may be assigned by either party. Subject to the preceding sentence,
this agreement shall be binding upon and inure to the benefit of both parties
and their respective heirs, personal representatives, successors, and permitted
assigns.
METATEC CORPORATION
By__________________________ ____________________________________
Its_________________________ JEFFREY M. WILKINS
<PAGE> 1
Exhibit 10(b)
REAL ESTATE PURCHASE AGREEMENT
This agreement is made September 1, 1994, between Jeffrey M. Wilkins,
whose address is 2481 Stonehaven Place, Upper Arlington, Ohio 43220 ("Seller"),
and Metatec Corporation, a Florida corporation, whose address is 7001 Metatec
Boulevard, Dublin, Ohio 43017 ("Buyer"), who hereby agree as follows:
Section 1. Purchase and Sale. On the terms and subject to the
conditions hereinafter set forth, Seller shall sell and convey to Buyer and
Buyer shall purchase from Seller a parcel of real property containing
approximately 7.246 acres located in Dublin, Ohio, as more fully described on
the attached Exhibit A, together with the approximately 55,000 square foot
building located thereon, and all other improvements thereon and appurtenances
thereto (collectively, the "Property").
Section 2. Purchase Price. The purchase price for the Property
shall be $4,800,000. The purchase price (after all adjustments provided for in
this agreement) shall be paid by Buyer to Seller at the closing (as defined in
Section 3) by cash, bank cashier's check, or bank wire transfer, as selected by
Buyer.
Section 3. Closing and Possession. The closing shall be held
within thirty (30) days after the date of this agreement at a time and place
reasonably designated by Seller (the "Closing"). Seller shall be entitled to
possession of the Property until the Closing, and Buyer shall be entitled to
possession of the Property at and after the Closing.
Section 4. Evidence of Title. At least five (5) days prior to
the Closing, Seller shall furnish Buyer with a commitment for an owner's title
insurance policy in the amount of the purchase price. The title insurance
commitment shall show in Seller marketable fee-simple title to the Property
free and clear of all liens, encumbrances, restrictions, easements, and other
defects or claims except: (a) real estate taxes not then due and payable; (b)
zoning and building laws, ordinances and regulations; (c) existing
rights-of-way; (d) rights of existing tenants in possession of all or part of
the Property; (e) easements, conditions, and restrictions of record which do
not unreasonably interfere with the present lawful use of the Property; and (f)
any other matters approved by Buyer. At the Closing, or as soon thereafter as
may be reasonably practicable, Seller shall cause to be delivered to Buyer an
owner's title insurance policy written on such title insurance commitment.
Section 5. Deed. At the Closing, Seller shall convey the
Property to Buyer by a transferable and recordable general warranty deed,
transferring good and marketable fee-simple title to the Property to Buyer free
and clear of all liens, encumbrances, restrictions, easements, and other
defects except those described in Section 4, above. All approvals required
from any governmental authority to permit the deed to be recorded shall be
obtained by Seller at his expense
<PAGE> 2
and stamped thereon prior to Closing. Seller shall pay the conveyance fee
relating to this transaction.
Section 6. Other Closing Documents. In addition to the deed
described in Section 5, at the Closing, Seller shall deliver to Buyer: (a) a
closing statement for the Property showing the purchase price and all charges
or credits to Buyer or Seller provided for herein; (b) all consents, affidavits
or other documents reasonably required by the title company to issue the policy
described in Section 4; (c) an affidavit that Seller is not a nonresident
"alien," "foreign corporation," "foreign partnership," "foreign trust," or
"foreign estate" within the meaning of the Internal Revenue Code and
regulations thereunder; (d) assignments of all leases between Seller and any
existing tenants in possession of all or part of the Property (the "Leases");
(e) assignments of all service and maintenance contracts relating to the
Property to which Seller is a party and which are assignable by Seller, if any
(the "Service Contracts"); and (f) any other documents required to be delivered
by Seller under this agreement which have not been delivered to Buyer prior to
the Closing. All such documents shall be in form and substance reasonably
satisfactory to Buyer.
At the Closing, Buyer shall deliver to Seller
agreements evidencing (i) Buyer's assumption of all obligations and liabilities
of Seller under the Leases and the Service Contracts from and after the
Closing, and (ii) Buyer's indemnification of Seller against any and all
liabilities, claims, damages, costs, and expenses arising out of any failure of
Seller to perform or satisfy any of such assumed obligations and liabilities.
Such agreements shall be in form and substance reasonably satisfactory to
Seller.
Section 7. Taxes and Assessments. All real estate taxes on the
Property for the calendar year in which the Closing occurs shall be prorated
between Seller and Buyer to the date of the Closing. All real estate taxes on
the Property for any prior calendar years, including penalties and interest,
shall be paid in full by Seller. Seller shall pay any and all assessments,
charges and special taxes which are a lien on the Property at the date of the
Closing or which are attributable to improvements that have theretofore been
completed. For purposes of this agreement, any tax rates and property
valuations that are not determined at the time of the Closing shall be deemed
to be the same as the last determined tax rates and property valuations. If
Buyer so elects, any taxes and assessments that are to be prorated to or paid
by Seller under this section shall instead be credited upon the purchase price
at the Closing, and Buyer shall then take title to the Property subject to the
lien of such taxes and assessments.
Section 8. Rentals, Security Deposits, Interest, Insurance, and
Utilities. At least ten (10) days prior to the Closing, Seller shall provide
Buyer with copies of all Leases. At the Closing, Seller shall provide Buyer
with estoppel certificates, in form and
2
<PAGE> 3
substance reasonably satisfactory to Buyer, executed by the tenants under the
Leases. All security deposits for the Leases shall be transferred by Seller to
Buyer.
All rental payments under the Leases, interest on any
mortgage assumed by Buyer, if any, and utility charges on the Property shall be
prorated between Seller and Buyer to the date of the Closing. If Buyer so
elects, any amounts to be prorated under this section shall instead be credited
on the purchase price at the Closing. If Buyer so elects, Seller shall assign
to Buyer all of his interest in any assignable insurance policy on the
Property, and adjustment shall be made through the date of Closing for any
premiums paid in advance or premiums payable under such policies.
Section 9. Damage or Destruction of Property. Risk of loss to
the Property shall be borne by Seller until Closing.
Section 10. Commissions. To the extent that any commissions,
fees, or other payments are due to any other person as a result of Buyer's
purchase of the Property pursuant to this agreement, each party shall be
responsible for those which it incurs, shall not be responsible for those
incurred by the other party, and shall indemnify the other party in the event
that any such claim is made as a result of his or its actions.
Section 11. Notices. Any notice or other communication required
or desired to be given to either party under this agreement shall be in writing
and shall be deemed given when: (a) delivered personally to that party; (b)
deposited in the United States mail, certified, with postage prepaid and return
receipt requested, addressed to that party at that party's address specified at
the beginning of this agreement, or at any other address hereafter designated
by that party in notice theretofore given to the other party; or (c) delivered
to that party at that party's address specified at the beginning of this
agreement, or at any other address hereafter designated by that party in notice
theretofore given to the other party, by any express mail or other over-night
delivery service.
Section 12. Governing Law. All questions concerning the validity
or meaning of this agreement or relating to the rights and obligations of the
parties with respect to performance under this agreement shall be construed and
resolved under the laws of Ohio.
Section 13. Complete Agreement. This agreement (including its
exhibits) contains the entire agreement between the parties and supersedes all
prior or contemporaneous discussions, negotiations, representations, or
agreements relating to the subject matter of this agreement. No changes to
this agreement shall be made or be binding on any party unless made in writing
and signed by each party to this agreement.
3
<PAGE> 4
Section 14. Incorporation of Exhibits. Each exhibit referred to
in this agreement is hereby incorporated herein by reference.
Section 15. Captions. The captions of the various sections of
this agreement are not part of the context of this agreement, but are only
labels to assist in locating those sections, and shall be ignored in construing
this agreement.
Section 16. Assignment; Successors in Interest. This agreement
shall be personal to both parties and no rights or obligations under this
agreement may be assigned by either party. Subject to the preceding sentence,
this agreement shall be binding upon and inure to the benefit of both parties
and their respective heirs, personal representatives, successors, and permitted
assigns.
METATEC CORPORATION
By /s/William H. Largent /s/Jeffrey M. Wilkins
------------------------ ---------------------
William H. Largent Jeffrey M. Wilkins
Vice President - Finance
4
<PAGE> 5
EXHIBIT A
Situated in the State of Ohio, County of Franklin, Village of Dublin, in
Virginia Military Survey No. 2999 and being a portion of an original 72.364 acre
tract of land conveyed to Elizabeth M. Workman (50% interest), A. Glenn
McClelland (10% interest), W. Reed McClelland (10% interest), William S. Guthrie
(10% interest), John R. Warren (10% interest) subsequently upon his death
conveyed to Louise H. Warren by deed of record in Official Record 3018, Page
A03, Recorder's Office, Franklin County, Ohio), Emerson C. Wollam (5% interest)
and Emmerich VonHaam (5% interest) by deeds of record in Deed Book 3075, Page
53, and Deed Book 3602, Page 41, Recorder's Office, Franklin County, Ohio, and
bounded and described as follows:
Beginning, for reference, at a railroad spike found at the intersection of the
centerline of Post Road (60 feet wide) with the centerline of Wilcox Road (60
feet wide) and at the northwest corner of said original 72.364 acre tract;
thence S 2 deg. 56' 07" E along the centerline of Wilcox Road and along a
portion of the west line of said original 72.364 acre tract a distance of 518.00
feet to a railroad spike set at the true place of beginning of the tract herein
intended to be described;
thence N 87 deg. 03' 53" E perpendicular to the centerline of Wilcox Road and
perpendicular to the west line of said original 72.364 acre tract a distance of
730.00 feet to a 3/4-inch I.D. iron pipe set in a curved west line of a proposed
street (60 feet wide) (passing a 3/4-inch I.D. iron pipe set in the east
right-of-way line of Wilcox Road at 30.00 feet);
thence southerly along a portion of a curved west line of said proposed street
and with a curve to the left, data of which is: radius = 2,080.00 feet and
sub-delta = 4 deg., 56' 03", a sub-chord distance of 179.07 feet bearing S
8 DEGREE 24' 39" E to a 3/4-inch I.D. iron pipe set at the point of tangency;
thence S 10 deg. 32' 41" E along a west line of said proposed street a distance
of 100.00 feet to a 3/4-inch I.D. iron pipe set at a point of curvature;
<PAGE> 6
thence southerly along a portion of a curved west line of said proposed street
and with a curve to the right, data of which is: radius = 1,070.00 feet and
sub-delta = 7 deg. 40' 01", a sub-chord distance of 143.07 feet bearing S 7
deg. 02' 41" E to a 3/4-inch I.D. iron pipe set;
thence S 87 deg. 03' 53" W perpendicular to the centerline of Wilcox Road and
perpendicular to the west line of said original 72.364 acre tract a distance of
771.16 feet to a railroad spike set in the centerline of Wilcox Road and in the
west line of said original 72.364 acre tract (passing a 3/4-inch I.D. iron pipe
set in the east right-of-way line of Wilcox Road at 741.16 feet);
thence N 2 deg. 56' 07" W along the centerline of Wilcox Road and along a
portion of the west line of said original 72.364 acre tract a distance of 420.00
feet to the true place of beginning;
containing 7.246 acres of land, more or less.
<PAGE> 1
Exhibit 10(c)
LOAN AGREEMENT
DATED AS OF
MAY 13, 1994
BETWEEN
THE HUNTINGTON NATIONAL BANK
AND
METATEC CORPORATION
AND
METATEC/DISCOVERY SYSTEMS, INC.
Porter, Wright, Morris & Arthur
41 South High Street
Columbus, Ohio 43215
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION HEADING
<S> <C>
1. The Loans......................................
1.1 The Term Loan..........................
1.2 The Revolving Loan.....................
1.3 Limitations on Advances................
2. Terms and Uses of Loan.........................
2.1 Interest Rates and Evidence of Loan....
2.2 Fees and Costs.........................
2.3 Use of Proceeds........................
2.4 Cross-Prepayment.......................
2.5 Prepayment.............................
3. Security for the Term Loan.....................
4. Warranties and Representations.................
4.1 Corporate Organization and Authority...
4.2 Borrowing is Legal and Authorized......
4.3 Taxes..................................
4.4 Compliance with Law....................
4.5 Financial Statements, Full Disclosure..
4.6 No Insolvency..........................
4.7 Government Consent.....................
4.8 Title to Properties....................
4.9 No Defaults............................
4.10 Environmental Protection...............
4.11 Warranties and Representations.........
4.1 Advances...............................
5. The Company Business Covenants.................
5.1 Payment of Taxes and Claims............
5.2 Maintenance of Properties and
Corporate Existence.................
5.3 Sale of Assets, Merger,
Subsidiaries, Tradenames............
5.4 Negative Pledge........ ...............
5.5 Other Borrowings and Contingent
Liabilities.........................
5.6 Sale of Accounts, No Consignment.......
5.7 Ownership and Management...............
5.8 Acquisition of Capital Stock...........
5.9 Compensation of Officers and
Affiliated Persons..................
5.10 Cash Dividends and Other
Distributions.......................
5.11 Minimum Security..........................
5.12 Tangible Net Worth........................
5.13 Current Ratio.............................
5.14 Ratio of Total Liabilities
to Net Worth........................
5.15 Capital Expenditures......................
5.16 Transactions with Affiliates..............
5.17 Maintenance of Accounts...................
5.18 Loans and Advances........................
5.19 Resting of Revolving Loan.................
5.20 Environmental Compliance and
Indemnification.....................
</TABLE>
- i -
<PAGE> 3
<TABLE>
<CAPTION>
SECTION HEADING
<S> <C> <C>
6. Financial Information and Reporting............
7. Default........................................
7.1 Events of Default......................
7.2 Default Remedies.......................
8. Miscellaneous..................................
8.1 Notices................................
8.2 Reproduction of Documents..............
8.3 Survival, Successors and Assigns.......
8.4 Amendment and Waiver, Duplicate
Originals...........................
8.5 Uniform Commercial Code and Generally
Accepted Accounting Principles......
8.6 Enforceability and Governing Law.......
8.7 Waiver of Right to Trial by Jury.......
9. Definitions....................................
Exhibits
Exhibit A-1 - Revolving Note
Exhibit A-2 - Term Note
Exhibit B - Schedule of Permitted Encumbrances
Exhibit C - Schedule of Indebtedness
</TABLE>
- ii -
<PAGE> 4
LOAN AGREEMENT
This agreement (the "Agreement") is entered into at Columbus,
Ohio, between The Huntington National Bank (the "Bank"), as lender and Metatec
Corporation and Metatec/Discovery Systems, Inc. (collectively, on a joint and
several basis, the "Company"), as borrowers as of the 13th day of May, 1994.
1. The Loans.
1.1 The Term Loan. The Bank, subject to the terms and conditions
hereof, will make loans and advances to the Company on a secured draw/term
basis in a principal amount up to the sum of $4,300,000.00 (the "Term Loan").
1.2 The Revolving Loan. The Bank, subject to the terms and
conditions hereof, will make loans and advances to the Company on an unsecured
revolving basis in a principal amount up to $2,000,000.00 (the "Revolving
Loan").
1.3 Limitations on Advances. The Term Loan and the Revolving Loan
are hereinafter sometimes collectively referred to as the "Loan". The Bank
shall have no obligation to make any advances pursuant to the Loan at any time
when any set of facts or circumstances exists that, by itself, upon the giving
of notice, the lapse of time or any one or more of the foregoing, would
constitute an Event of Default under this Agreement.
2. Terms and Uses of Loan.
2.1 Interest Rates and Evidence of Loan. The Company agrees to pay
the Bank monthly interest on the unpaid balance of the Loan at the rates of
interest and in the manner set forth in the notes evidencing the Loan. In
addition, the Company agrees to make principal payments in the manner set forth
in the notes evidencing the Loan. The Loan shall be evidenced by promissory
notes executed of even date herewith or one or more notes subsequently executed
in substitution therefor, each in substantially the form set forth in Exhibits
A-1 and A-2 to this Agreement. Repayment of the Loan shall be made in
accordance with the terms of the notes then outstanding pursuant to this
Agreement. Each advance request of the Company under the Term Loan or the
Revolving Loan shall be accompanied by such documents or communications
acceptable to the Bank in its sole and absolute discretion.
2.2 Fees and Costs. The Company agrees to pay to the Bank no later
than the execution of this Agreement an arrangement fee in respect of the Term
Loan equal to $43,000.00. The Company shall pay all costs and expenses
incidental to the Loan or the Bank's administration of the Loan, the
enforcement of the Bank's rights in connection therewith, any amendment or
modification of this Agreement or any other loan documents, or any litigation,
contest, dispute, proceeding or action in any way relating to the Project or
the enforcement of this Agreement, whether any of the foregoing are incurred
prior to or after maturity, the occurrence of an Event of Default, or the
rendering of a judgment. Such costs shall include, but not be limited to, fees
and out-of-pocket expenses of the Bank's counsel, audit fees, survey fees,
title insurance fees, recording fees, inspection fees, revenue stamps and note
and mortgage taxes.
2.3 Use of Proceeds. The net proceeds of the Term Loan will be used
to provide financing in connection with costs
<PAGE> 5
incurred with the acquisition of approximately 8 acres of land located at and
adjacent to 7001 Metatec Blvd., Dublin, Ohio and the construction of an
approximate 60,000 square foot office/distribution facility (collectively the
"Project"). The net proceeds of the Revolving Loan will be used for working
capital needs.
2.4 Cross-Prepayment.
Notwithstanding any provision of this Agreement or the
promissory note or notes evidencing the Term Loan, the Company shall have no
right to prepay in full the Term Loan unless there occurs simultaneously a
prepayment in full of certain loans in the aggregate principal sum of
$4,050,000.00 made by the Bank to Jeffrey M. Wilkins secured by a certain
Mortgage, Assignment of Rents and Security Agreement on the real estate and
personal property located at 7001 Metatec Boulevard, Dublin, Ohio (the "Wilkins
Project").
2.5 Prepayment.
With respect to the Revolving Loan, the Company, if no Event of
Default has occurred and is continuing, shall have the right to prepay at any
time and from time to time before maturity any amount or amounts due to the
Bank pursuant to this Agreement or to any note or notes executed pursuant
hereto.
3. Security for the Term Loan.
The Term Loan shall be secured by all of the Company's
"Equipment" and the "Collateral," as such terms are defined in certain Security
Agreements - Equipment executed by the Company, dated of even date herewith
(the "Security Agreements").
4. Warranties and Representations. Each corporation comprising the
Company warrants and represents to the Bank:
4.1 Corporate Organization and Authority. (a) Metatec Corporation,
is a corporation duly organized, validly existing and in good standing under
the laws of the State of Florida and Metatec/Discovery Systems, Inc., is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Ohio; (b) the Company has all requisite power and
authority and all necessary licenses and permits to own and operate its
properties and to carry on its business as now conducted, except with respect
to licenses and permits or the failure to obtain the same will not materially
and adversely affect the business, properties, or condition (financial or
otherwise) of the Company; and (c) the Company is not doing business or
conducting any activity in any jurisdiction in which it has not duly qualified
and become authorized to do business, except where the failure to do so will
not materially and adversely affect the business, properties, or condition
(financial or otherwise) of the Company.
4.2 Borrowing is Legal and Authorized. (a) The Board of Directors
of each corporation comprising the Company has duly authorized the execution
and delivery of this Agreement and of the notes, the Security Agreements and
documents contemplated herein; this Agreement, the notes, the Security
Agreements and other documents executed in connection with this Agreement will
constitute valid and binding obligations of the Company enforceable in
accordance with their respective terms; (b) the execution of this Agreement and
related notes, the Security Agreements and documents and the compliance by the
Company with
- 2 -
<PAGE> 6
all the provisions of this Agreement (i) are within the corporate powers of the
Company; and (ii) will not conflict with, result in any breach in any of the
provisions of, constitute a default under, or result in the creation of any
lien or encumbrance upon any property of the Company under the provisions of,
any agreement, charter instrument, bylaw, or other instrument to which the
Company is a party or by which it is bound, except to the extent that any such
conflict, breach, or default would not materially and adversely affect the
business, properties, or condition (financial or otherwise) of the Company; (c)
there are no limitations in any indenture, contract, agreement, mortgage, deed
of trust or other agreement or instrument to which the Company is now a party
or by which the Company is bound with respect to the payment of principal or
interest on any indebtedness, or the Company's ability to incur indebtedness
including the notes to be executed in connection with this Agreement.
4.3 Taxes. All tax returns required to be filed by the Company in
any jurisdiction have in fact been filed, and all taxes, assessments, fees and
other governmental charges upon the Company, or upon any of its respective
properties, which are due and payable have been paid. The Company does not
know of any proposed additional tax assessment against it. The provisions for
taxes on the books of the Company for its current fiscal period are adequate in
accordance with GAAP.
4.4 Compliance with Law. The Company (a) is not in violation of any
laws, ordinances, governmental rules or regulations to which it is subject,
including without limitation (i) any Environmental Laws, and (ii) any laws,
rulings or regulations relating to the Employee Retirement Income Security Act
of 1974 or Section 4975 of the Internal Revenue Code and (b) has not failed to
obtain any licenses, permits, franchises or other governmental or environmental
authorizations necessary to the ownership of its properties or to the conduct
of its business, which violation or failure might materially and adversely
affect the business, properties or condition (financial or otherwise) of the
Company.
4.5 Financial Statements, Full Disclosure. The financial statements
for the fiscal year ending December 3l, l993, and the fiscal period ending
March 31, l994, which have been supplied to the Bank by the Company, have been
prepared in accordance with GAAP and respectively fairly represent the
Company's financial condition as of such dates. No material adverse change in
the Company's financial condition has occurred since the latest date of the
financial statements referenced in this Section 4.5. The financial statements
referred to in this paragraph do not, nor does this Agreement or any written
statement furnished by the Company to the Bank in connection with obtaining the
Loan, contain any untrue statement of a material fact or omit a material fact
necessary to make the statements contained therein or herein not misleading.
The Company has disclosed to the Bank all facts which materially affect the
properties, business, or condition (financial or otherwise) of the Company or
the ability of the Company to perform this Agreement.
4.6 No Insolvency. On the date of the Company's entering into the
Loan and after giving effect to all indebtedness of the Company (including the
Loan), (a) the Company will be able to pay its obligations as they become due
and payable; (b) the present fair saleable value of the Company's assets
exceeds the amount that will be required to pay its probable liability on its
obligations as the same become absolute and matured; (c) the sum of the
Company's property at a fair valuation exceeds the Company's indebtedness; and
(d) the Company will have sufficient capital to engage in its businesses. The
Company's
- 3 -
<PAGE> 7
grant of collateral for the Term Loan constitutes fair consideration and
reasonably equivalent value because of the receipt of the proceeds of the Loan.
4.7 Government Consent. Neither the nature of the Company or of its
business or properties, nor any relationship between the Company and any other
entity or person, nor any circumstance in connection with the execution of this
Agreement, is such as to require a consent, approval or authorization of, or
filing, registration or qualification with, any governmental authority on the
part of the Company as a condition to the execution and delivery of this
Agreement and the notes and documents contemplated herein, except to the extent
that the failure of the Company to so obtain or make any such consent,
approval, or authorization, filing, registration or qualification will not
materially and adversely affect the business, properties, or condition
(financial or otherwise) of the Company.
4.8 Title to Properties. The Company has good and marketable title
to all the property in which it has a property interest, free from any liens
and encumbrances, except as set forth on Exhibit B attached to this Agreement.
the Company has not agreed or consented to cause or permit in the future (upon
the happening of a contingency or otherwise) any of its property whether now
owned or hereafter acquired to be subject to a lien or encumbrance except as
provided in this paragraph.
4.9 No Defaults. No event has occurred and no condition exists
which would constitute an Event of Default pursuant to this Agreement. The
Company is not in violation in any material respect of any term of any
agreement, charter instrument, bylaw or other instrument to which it is a party
or by which it may be bound, except for any such violation which will not
materially and adversely affect the business, properties, or condition
(financial or otherwise) of the Company.
4.10 Environmental Protection. The Company (a) has no actual
knowledge of the permanent placement, burial or disposal of any Hazardous
Substances (as hereinafter defined) on any real property owned, leased, or used
by the Company (the "Premises"), of any spills, releases, discharges, leaks, or
disposal of Hazardous Substances that have occurred or are presently occurring
on, under, or about the Premises, or of any spills, releases, discharges, leaks
or disposal of Hazardous Substances that have occurred or are occurring off the
Premises as a result of the Company's improvement, operation, or use of the
Premises which would result in non-compliance with any of the Environmental
Laws (as hereinafter defined); (b) is and has been in compliance with all
applicable Environmental Laws; (c) knows of no pending or threatened
environmental civil, criminal or administrative proceedings against the Company
relating to Hazardous Substances; (d) except in respect of the real property
formerly owned by the Company, located at 122 South Missouri, Lakeland,
Florida, knows of no facts or circumstances that would give rise to any future
civil, criminal or administrative proceeding against the Company relating to
Hazardous Substances; and (e) will not permit any of its employees, agents,
contractors, subcontractors, or any other person occupying or present on the
Premises to generate, manufacture, store, dispose or release on, about or under
the Premises any Hazardous Substances which would result in the Premises not
complying with the Environmental Laws.
As used herein, "Hazardous Substances" shall mean and include
all hazardous and toxic substances, wastes, materials, compounds, pollutants
and contaminants (including, without limitation, asbestos, polychlorinated
biphenyls, and petroleum
- 4 -
<PAGE> 8
products) which are included under or regulated by the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C.
Section 9601, et seq., the Toxic Substances Control Act, 15 U.S.C. Section
2601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section
6901, et seq., the Water Quality Act of 1987, 33 U.S.C. Section 1251, et seq.,
and the Clean Air Act, 42 U.S.C. Section 7401, et seq., and any state or local
statute ordinance, law, code, rule, regulation or order regulating or imposing
liability (including strict liability) or standards of conduct regarding
Hazardous Substances (hereinafter the "Environmental Laws"), but does not
include such substances as are permanently incorporated into a structure or any
part thereof in such a way as to preclude their subsequent release into the
environment, or the permanent or temporary storage or disposal of household
hazardous substances by tenants, and which are thereby exempt from or do not
give rise to any violation of the forementioned Environmental Laws.
4.11 Warranties and Representations. On the date of each advance
pursuant to the Loan, the warranties and representations set forth in Section 4
hereof shall be true and correct in all material respects on and as of such
date with the same effect as though such warranties and representations had
been made on and as of such date, except to the extent that such warranties and
representations expressly relate to an earlier date.
4.12 Advances Under the Term Loan. Each advance request of the
Company under the Term Loan shall be made by the Bank pursuant to this
Agreement in an amount up to the full principal balance of the Term Loan. The
Bank shall make disbursements under the Term Loan only in accordance with such
disbursement instructions as the Bank may require from time to time. At any
time when any set of facts or circumstances exist that, by itself, upon the
giving of notice, the lapse of time, or any one or more of the foregoing, would
constitute an Event of a Default under this Agreement, the Bank shall have no
obligation to make further advances.
5. The Company Business Covenants. Each entity comprising the
Company covenants that on and after the date of this Agreement until this
Agreement is terminated pursuant to the terms hereof or so long as any of the
indebtedness provided for herein remains unpaid:
5.1 Payment of Taxes and Claims. The Company will pay before they
become delinquent (a) all taxes, assessments and governmental charges or levies
imposed upon it or its property; and (b) all bona fide claims or demands of
material suppliers, mechanics, carriers, warehousers, landlords, bailees and
other like persons which, if unpaid, might result in the creation of a lien or
encumbrance upon its property.
5.2 Maintenance of Properties and Corporate Existence. The Company
shall (a) maintain its property in good condition and make all renewals,
replacements, additions, betterments and improvements thereto which are deemed
necessary by the Company; (b) maintain, with financially sound and reputable
insurers, insurance with respect to its properties and business against such
casualties and contingencies, of such types (including but not limited to fire
and casualty, public liability, products liability, larceny, embezzlement or
other criminal misappropriation insurance) in such amounts as is customary in
the case of corporations of established reputations engaged in the same or a
similar business and similarly situated; (c) keep true books of records and
accounts in which full and correct entries will be made of all its business
transactions, and reflect in its financial statements adequate accruals and
- 5 -
<PAGE> 9
appropriations to reserves to the extent required under GAAP; (d) do or cause
to be done all things necessary (i) to preserve and keep in full force and
effect its existence, rights and franchises needed by it to own its properties
and conduct its business, except where the failure to do so will not materially
and adversely affect the business, properties, or condition (financial or
otherwise) of the Company, and (ii) to maintain its status as a corporation
duly organized and existing and in good standing under the laws of the state of
its incorporation; and (e) not be in violation of any laws, ordinances, or
governmental rules and regulations or fail to obtain any licenses, permits,
franchises or other governmental authorizations necessary to the ownership of
its properties or to the conduct of its business, which violation or failure to
obtain would materially and adversely affect the business, properties or
condition (financial or otherwise) of the Company.
5.3 Sale of Assets, Merger, Subsidiaries, Tradenames. The Company
(a) except (i) in the ordinary course of business, and except for (ii)
non-material equipment, will not sell, lease, transfer or otherwise dispose of,
any of its material assets; (b) will not without the prior written consent of
the Bank, which consent shall not be withheld unreasonably, consolidate with or
merge into any other entity, or permit any other entity to consolidate with or
merge into it. The Company conducts business only in the name of the Company.
The Company shall not acquire all or substantially all of the assets or
business of any other company, person, or entity, without the prior written
consent of the Bank, which consent shall not be withheld unreasonably. Metatec
Corporation has no subsidiaries except that Metatec/Discovery Systems, Inc. and
is a wholly-owned subsidiary of the Company and Discovery Artists, Inc. is a
wholly-owned subsidiary of Metatec/Discovery Systems, Inc. The Company will
not create or acquire subsidiaries or permit any of its subsidiaries or
affiliates to create or acquire subsidiaries or affiliates, without the prior
written consent of the Bank, which consent shall not be withheld unreasonably.
In addition, the Company will not conduct business under a tradename not listed
above without providing to the Bank fifteen (15) days prior written notice.
5.4 Negative Pledge. The Company will not cause or permit or agree
or consent to cause or permit in the future (upon the happening of a
contingency or otherwise), any of its real or personal property, whether now
owned or hereafter acquired, to become subject to a lien or encumbrance,
except: (i) liens on deposits required by workers' compensation, unemployment
insurance, social security and other like laws; (ii) taxes, assessments,
reservations, exceptions, encroachments, easements, rights of way, covenants,
conditions, restrictions, leases and other similar title exceptions or
encumbrances affecting real property, provided they do not in the aggregate
materially detract from the value of said property or materially interfere with
its use in the ordinary conduct of owning the Company's business; (iii)
inchoate liens arising under ERISA to secure the contingent liability of the
Company; and (iv) liens or other restrictions or encumbrances as set forth or
referred to in Exhibit B attached to this Agreement or permitted in connection
with borrowings in paragraph 5.5 below. In addition, the Company will not
agree in favor of any creditor or third person (excluding the Bank) to provide
such creditor or third person with a "negative pledge" or other covenant or
agreement similar to this Section 5.4.
5.5 Other Borrowings and Contingent Liabilities. Except for (a) the
Loan, (b) the existing indebtedness and obligations of the Company set forth in
Exhibit C to this Agreement secured by the property also described on such
Exhibit, (c) any replacement or substitute obligations for the obligations
- 6 -
<PAGE> 10
referenced on Exhibit C attached hereto, (d) indebtedness created in connection
with purchase money financing of equipment or fixtures not to exceed the
purchase price of the item purchased up to an aggregate amount of $100,000.00
in any one fiscal year, (e) indebtedness (including capitalized lease
obligations) of the Company to any of its subsidiaries, and (f) the endorsement
and negotiable instruments for deposit or collection in the ordinary course of
business, the Company will not (i) create or incur any indebtedness for
borrowed money or advances, including through the execution of capitalized
lease agreements or (ii) guarantee, indorse or otherwise become surety for or
upon the obligations of others.
5.6 Sale of Accounts, No Consignment. Other than as herein
provided, the Company shall not sell, assign, or encumber any of its accounts
or notes receivable. The Company shall not permit any of its inventory to be
sold or transferred on consignment or acquire or possess any of its inventory
on consignment.
5.7 Ownership and Management. The Company shall not voluntarily
permit any material change in its ownership or management or replace or change
its chief executive officer unless such a replacement or change will not
materially or adversely affect the Company's business, properties or condition
(financial or otherwise).
5.8 Acquisition of Capital Stock. The Company shall not redeem or
acquire any of its own capital stock except through the use of the net proceeds
from the simultaneous sale of an equivalent amount of its capital stock.
5.9 Compensation of Officers and Affiliated Persons. the Company
shall not pay total compensation, including bonuses, fringe and other allied
benefits, to any of its executive officers in an annual amount in excess of
amounts that are customary for comparable companies.
5.10 Cash Dividends and Other Distributions. The Company shall not
declare or pay any cash dividends which total in excess of 20% of the Company's
net income after taxes each fiscal year; provided, however, that no dividends
shall be declared or paid and no other distributions to shareholders shall be
made if an Event of Default has occurred and is continuing under this
Agreement.
5.11 Minimum Security. With respect to the Term Loan, the Company
shall maintain at all times as minimum security therefor, the "Equipment" and
"Collateral," as such terms are defined in the Security Agreements, on which
the Bank has a first and exclusive perfected security interest, having an
aggregate value, using a "forced liquidation value" or other similar method of
computing value as reflected in appraisals or other methods satisfactory to the
Bank, which value equals or exceeds the aggregate unpaid principal balance of
the Term Loan, and if the Company fails to do so, then the Company shall
immediately pay to the Bank the difference between the (i) principal balance of
the Term Loan and (ii) such value.
5.12 Tangible Net Worth. The Company, on a consolidated basis, shall
maintain at all times a Tangible Net Worth not less than the amounts set forth
below for the periods set forth below:
$15,500,000.00 beginning December 31, 1993, and continuing
through and including December 30, 1994;
$16,500,000.00 beginning December 31, 1994, and continuing
through and including December 30, 1995; and
- 7 -
<PAGE> 11
$17,500,000.00 beginning December 31, 1995, and
continuing through and including December 30, 1996.
$l8,500.000.00 beginning December 31, l996, and continuing at
all times thereafter.
"Tangible Net Worth" shall mean, on a consolidated basis, shareholders' equity,
minus the sum of all of the following: intangible assets, goodwill, deferred
charges or deferred financing costs, advances, non-compete agreements, and
notes and/or accounts receivable from affiliates that are not eliminated in
consolidation.
5.13 Current Ratio. The Company, on a consolidated basis, shall
maintain at all times a ratio of current assets to current liabilities of not
less than:
1.50 to 1.00 beginning December 31, 1993, and continuing at all
times thereafter.
For the purposes of this Section 5.13, current liabilities shall include all
amounts borrowed and outstanding pursuant to the Revolving Loan.
5.14 Ratio of Total Liabilities to Net Worth. The Company, on a
consolidated basis, shall maintain at all times a ratio of total liabilities
to Tangible Net Worth of not greater than:
.22 to 1.00 as of December 3l, l993; and
.75 to 1.00 beginning January l, l994 and continuing at all
times thereafter.
Solely for the purposes of the calculation of the ratio of total liabilities to
Tangible Net Worth contained in this Section 5.14, the Company's capital lease
obligation and the corresponding assets, each in the approximate sum of
$4,800,000.00 in connection with its lease/purchase of the Wilkins Project
shall be excluded from total liabilities and Tangible Net Worth.
5.15 Capital Expenditures. Except for the purchase of the Wilkins
Project pursuant to an option agreement effective March 1, 1994, the Company
will not make any expenditure for fixed or capital assets, including by way of
the incurrence of capitalized lease obligations, expenditures for maintenance
and repairs which should be capitalized in accordance with generally accepted
accounting principles or otherwise in excess of the aggregate sum of
$5,200,000.00 in fiscal year 1993, $l6,000,000.00 in fiscal year l994, and
$5,000,000.00 in any fiscal year thereafter.
5.16 Transactions With Affiliates. Except for the lease of personal
and real property from Jeffrey M. Wilkins, the Company shall not directly or
indirectly enter into or permit to exist any transactions (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any affiliates or shareholders, on terms that
are less favorable to the Company than those which could reasonably be obtained
at the time from persons or entities who are not affiliated with the Company or
its shareholders. "Affiliate" shall mean any individual, partnership,
corporation, or other entity which, directly or indirectly, is in control of,
is controlled by, or is under common control with either of the Company. For
the purposes of this definition, control of such entity shall mean the power,
direct or indirect, to vote five percent or more of the securities, units or
other measures having ordinary voting power for the election of directors,
management committees, or similar committees of such entity, or
- 8 -
<PAGE> 12
the power to direct or cause the direction of the management and policies of
such entity, whether by contract or otherwise.
5.17 Maintenance of Accounts. The Company shall maintain its deposit
accounts at the Bank if the Bank can provide services and rates that are equal
to or more advantageous to the Company than those available at other financial
institutions.
5.18 Loans and Advances. Except for loans and advances by the
Company to any of its subsidiaries, the Company will not make any loans or
advances to any person, corporation or entity if such loans will exceed an
aggregate total outstanding at any one time of $100,000.00.
5.19 Resting of Revolving Loan. The Company shall reduce the
principal balance of the Revolving Loan to zero and maintain the same at zero
for a period of not less than 60 consecutive days during each fiscal year.
5.20 Environmental Compliance and Indemnification. The Company
hereby indemnifies the Bank and holds the Bank harmless from and against any
loss, damage, cost, expense or liability (including strict liability) directly
or indirectly arising from or attributable to the generation, storage, release,
threatened release, discharge, disposal or presence (whether prior to or during
the term of the Loan) of Hazardous Substances on, under or about the Premises
(whether by the Company or any employees, agents, contractor or subcontractors
of the Company or any predecessor in title or any third persons occupying or
present on the Premises), or the breach of any of the representations and
warranties regarding the Premises, including, without limitation: (a) those
damages or expenses arising under the Environmental Laws; (b) the costs of any
repair, cleanup or detoxification of the Premises, including the soil and
ground water thereof, and the preparation and implementation of any closure,
remedial or other required plans; (c) damage to any natural resources; and (d)
all reasonable costs and expenses incurred by the Bank in connection with
clauses (a), (b) and (c) including, but not limited to reasonable attorneys'
fees.
The indemnification provided for herein shall not apply to any
losses, liabilities, damages, injuries, expenses or costs which: (i) arise
from the gross negligence or willful misconduct of the Bank, or (ii) relate to
Hazardous Substances placed or disposed of on the Premises after the Bank
acquires title to the Premises through foreclosure or otherwise.
6. Financial Information and Reporting. The Company shall deliver
the following to the Bank: (a) within 30 days after the end of each month,
financial statements, including a balance sheet and statements of income and
surplus, and consolidating schedules certified by the Chairman of the Board,
chief financial officer, president, treasurer, assistant treasurer or
controller (any of the foregoing an "Authorized Officer") as fairly
representing the Company's financial condition as of the end of such period;
(b) within 30 days after the end of each month, a certificate or other
statement satisfactory to the Bank, signed by an Authorized Officer, certifying
the compliance of the Company with the terms of this Agreement and containing
the calculations which set forth the Company's compliance with Sections 5.12,
5.13, 5.14 and 5.15 above; (c) within 90 days of the end of each fiscal year,
an audited financial statement prepared in accordance with generally accepted
accounting principles consistently applied by independent public accountants
satisfactory to the Bank, containing a balance sheet, statements of income and
surplus,
- 9 -
<PAGE> 13
statements of cash flows and reconciliation of capital accounts, along with any
management letters written by such accountants and consolidating schedules; (d)
concurrently with the filing or release, as the case may be, copies of all
Securities and Exchange Commission disclosures, filings, documents or any press
releases; (e) immediately upon becoming aware of the existence of any condition
or event which constitutes an Event of Default, a written notice specifying the
nature and period of existence thereof and what action the Company is taking or
proposes to take with respect thereto; and (f) at the request of the Bank, such
other information as the Bank may from time to time reasonably require.
7. Default.
7.1 Events of Default. An "Event of Default" shall exist if any of
the following occurs and is continuing: (a) the Company fails to make any
payment of principal or interest on any note executed in connection with this
Agreement on or before five days after the date such payment is due; (b) the
Company fails to perform or observe any covenant contained in Sections 2.3,
5.1, 5.2(b), 5.3(b), 5.4, 5.5, 5.6, 5.7, 5.8, 5.10 and 5.11 of this Agreement;
(c) the Company fails to perform or observe any covenant contained in Sections
5.2(a), (c) or (e), 5.3(a) or 6 of this Agreement, and such failure continues
for more than 10 days after such failure shall first become known to any
officer of the Company; (d) the Company fails to perform or observe any
agreement or covenant contained in the Security Agreements, and such failure
continues for more than ten (10) days after such failure shall first become
known to any officer of the Company; (e) the Company fails to comply with any
other provision of this Agreement or the Company fails to perform or observe
any covenant contained in any other agreement in favor of the Bank, and such
failure continues for more than 30 days after such failure shall first become
known to any officer of the Company; (f) any warranty, representation or other
statement by or on behalf of the Company contained in this Agreement or in any
instrument furnished in compliance with or in reference to this Agreement is
false or misleading in any material respect when made; (g) the Company becomes
insolvent, makes an assignment for the benefit of creditors, consents to the
appointment of a trustee, receiver or liquidator or institutes bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceedings; (h)
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
are instituted against the Company, and such proceeding is not dismissed within
60 days after filing of such proceeding; (i) a final judgment or judgments for
the payment of money aggregating in excess of $250,000.00 is or are outstanding
against the Company and no stay of execution is in effect; (j) the occurrence
of any breach, default, or event of default permitting the acceleration of the
maturity of certain indebtedness of Jeffrey M. Wilkins to the Bank, evidenced
by certain promissory notes in the original principal sum of $3,500,000.00, or
in the original principal sum of $550,000.00, dated April 13, 1994, or by one
or more notes given in substitution therefor or renewal or replacement thereof;
(k) the occurrence of any event of default or event permitting the acceleration
of the maturity of any indebtedness of the Company to the Bank, any of the
Bank's affiliates, or any other person, corporation or entity under any
material indenture, agreement or undertaking.
7.2 Default Remedies. If an Event of Default exists, the Bank may
immediately exercise any right, power or remedy permitted to the Bank by law or
any provision of this Agreement, and shall have, in particular, without
limiting the generality of the foregoing, the right to declare the entire
- 10 -
<PAGE> 14
principal and all interest accrued on all notes then outstanding pursuant to
this Agreement to be forthwith due and payable, without any presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Company.
8. Miscellaneous.
8.1 Notices. (a) All communications under this Agreement or under
the notes executed pursuant hereto shall be in writing and shall be sent by
facsimile, followed by first class mail, postage prepaid, (1) if to the Bank,
at the following address, or at such other address as may have been furnished
in writing to the Company by the Bank:
The Huntington National the Bank
41 South High Street
Columbus, Ohio 43215
Attn: Daniel W. Huffman
Assistant Vice President
Fax: 614-480-3066
with a copy to
Timothy E. Grady, Esq.
PORTER, WRIGHT, MORRIS & ARTHUR
41 South High Street
Columbus, Ohio 43215
Fax: 614-227-2100
(2) if to the Company, at the following address, or at such other address as
may have been furnished in writing to the Bank by the Company:
Metatec Corporation
7001 Metatec Boulevard
Dublin, Ohio 43017
Attn: Jeffrey M. Wilkins
Metatec/Discovery Systems, Inc.
7001 Metatec Boulevard
Dublin, Ohio 43017
Attn: Jeffrey M. Wilkins
with a copy to
Gary A. Wadman, Esq.
BAKER & HOSTETLER
65 East State Street
Columbus, Ohio 43215
Fax: 614-462-2616
(b) any notice so addressed, which is sent by facsimile and mailed by
registered or certified mail shall be deemed to be given when so sent by
facsimile.
8.2 Reproduction of Documents. This Agreement and all documents
relating hereto, including, without limitation, (a) consents, waivers and
modifications which may hereafter be executed, (b) documents received by the
Bank at the closing or otherwise, and (c) financial statements, certificates
and other information previously or hereafter furnished to the Bank, may be
reproduced by the Bank by any photographic, photostatic, microfilm, micro-card,
miniature photographic or other similar process and the Bank may destroy any
original document so reproduced. The Company and the Bank agree and stipulate
that any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not
- 11 -
<PAGE> 15
such reproduction was made by the Bank in the regular course of business) and
that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence.
8.3 Survival, Successors and Assigns. All warranties,
representations, and covenants made by the Company herein or on any certificate
or other instrument delivered by it or on its behalf under this Agreement shall
be considered to have been relied upon by the Bank and shall survive the
closing of the Loans regardless of any investigation made by the Bank on its
behalf. All statements in any such certificate or other instrument shall
constitute warranties and representations by the Company. This Agreement shall
inure to the benefit of and be binding upon the heirs, successors and assigns
of each of the parties.
8.4 Amendment and Waiver, Duplicate Originals. This Agreement may
be amended, and the observance of any term of this Agreement may be waived,
with (and only with) the written consent of the Company and the Bank; provided
however that nothing herein shall change the Bank's good faith discretion, to
the extent set forth elsewhere in this Agreement to make advances,
determinations, decisions or to take or refrain from taking other actions. No
delay or failure or other course of conduct by the Bank in the exercise of any
power or right shall operate as a waiver thereof; nor shall any single or
partial exercise of the same preclude any other or further exercise thereof, or
the exercise of any other power or right. Two or more duplicate originals of
this Agreement may be signed by the parties, each of which shall be an original
but all of which together shall constitute one and the same instrument.
8.5 Uniform Commercial Code and Generally Accepted Accounting
Principles. Unless the context otherwise requires, all terms used herein which
are defined in the Uniform Commercial Code as enacted in Ohio shall have the
meaning stated therein, and all accounting terms shall be determined in
accordance with generally accepted accounting principles, consistently applied
("GAAP"). "Fiscal Year" shall mean a 12 month period beginning January 1 and
ending December 31 of each calendar year.
8.6 Enforceability and Governing Law. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction, as to such
jurisdiction, shall be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction. No delay or
omission on the part of the Bank in exercising any right shall operate as a
waiver of such right or any other right. All of the Bank's rights and
remedies, whether evidenced hereby or by any other Agreement or instrument,
shall be cumulative and may be exercised singularly or concurrently. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Ohio. The Company agrees that any legal suit, action or proceeding
arising out of or relating to this Agreement may be instituted in a state or
federal court of appropriate subject matter jurisdiction in the State of Ohio;
waives any objection which it may have now or hereafter to the venue of any
suit, action or proceeding; and irrevocably submits to the jurisdiction of any
such court in any such suit, action or proceeding.
8.7 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT
- 12 -
<PAGE> 16
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (2) IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
9. Definitions.
"Affiliate" is defined in Section 5.16.
"Agreement" is defined in the Preamble.
"Authorized Officer" is defined in Section 6.
"Bank" is defined in the Preamble.
"Company" is defined in the Preamble.
"Environmental Laws" is defined in Section 4.10.
"Fiscal Year" is defined in Section 8.5.
"GAAP" is defined in Section 8.5.
"Hazardous Substances" is defined in Section 4.10.
"Loan" is defined in Section 1.2.
"Premises" is defined in Section 4.10.
"Project" is defined in Section 2.3.
"Revolving Loan" is defined in Section 1.2.
"Security Agreements" is defined in Section 3.
"Tangible Net Worth" is defined in Section 5.12.
"Term Loan" is defined in Section 1.1.
"Wilkins Project" is defined in Section 2.4.
Each of the parties to this Agreement has executed the Agreement
as of the date set forth in the Preamble above.
COMPANY:
METATEC CORPORATION
By /s/ William H. Largent
--------------------------------
Its /s/ Vice President-Finance
--------------------------------
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<PAGE> 17
METATEC/DISCOVERY SYSTEMS, INC.
By /s/ Gergory T. Tillar
-------------------------------
Its /s/ Executive Vice President
-------------------------------
BANK:
THE HUNTINGTON NATIONAL BANK
By /s/ Daniel W. Huffman
-------------------------------
Its /s/ Assistant Vice President
-------------------------------
- 14 -
<PAGE> 18
EXHIBIT A-1
THE HUNTINGTON NATIONAL BANK
REVOLVING NOTE
===============================================================================
City Office ____________________ Division _________ Branch ____ / / Secured
Account No. _____________________________ Note No. ___________ /XX/ Unsecured
Account Name METATEC CORPORATION AND METATEC/DISCOVERY SYSTEMS, INC.
/XX/ Corporations / / Partnership / / Individual/Proprietorship
/ / Other ____________________________________________________________________
===============================================================================
$2,000,000.00 Columbus, Ohio May 13, 1994
FOR VALUE RECEIVED, the undersigned, jointly and severally,
promise to pay to the order of The Huntington National Bank (hereinafter called
the "Bank," which term shall include any holder hereof) at such place as the
Bank may designate or, in the absence of such designation, at any of the Bank's
offices, the sum of Two Million Dollars ($2,000,000.00) or so much thereof as
shall have been advanced by the Bank at any time and not thereafter repaid
(hereinafter referred to as "Principal Sum") together with interest as
hereinafter provided and payable at the time and in the manner hereinafter
provided. The proceeds of the loan evidenced hereby may be advanced, repaid
and readvanced in partial amounts during the term of this revolving note (this
"Note") and prior to maturity. Each such advance shall be made to the
undersigned upon receipt by the Bank of the undersigned's application therefor
and disbursement instructions, which shall be in such form as the Bank shall
from time to time prescribe. The Bank shall be entitled to rely on any oral or
telephonic communication requesting an advance and/or providing disbursement
instructions hereunder, which shall be received by it in good faith from anyone
reasonably believed by the Bank to be the undersigned, or the undersigned's
authorized agent. The undersigned agree that all advances made by the Bank
will be evidenced by entries made by the Bank into its electronic data
processing system and/or internal memoranda maintained by the Bank. The
undersigned further agree that the sum or sums shown on the most recent
printout from the Bank's electronic data processing system and/or on such
memoranda shall be rebuttably presumptive evidence of the amount of the
Principal Sum and of the amount of any accrued interest.
This Note is executed and the advances contemplated hereunder are
to be made pursuant to a Loan Agreement by and between the undersigned and the
Bank dated May 13, 1994, and all amendments, modifications, and supplements
thereto from time to time (hereinafter called the "Loan Agreement"), and all
the covenants, representations, agreements, terms, and conditions contained
therein, including but not limited to additional conditions of default, are
incorporated herein as if fully rewritten.
INTEREST
Interest will accrue on the unpaid balance of the Principal Sum
until paid at a variable rate of interest per annum, which shall change in the
manner set forth below, equal to the Prime Commercial Rate.
Upon the occurrence of an "Event of Default" pursuant to the Loan
Agreement, interest will accrue on the unpaid balance of the Principal Sum and
unpaid interest, if any, at a variable rate of interest per annum, which shall
change in the manner set forth below, equal to three percentage points in
excess of the Prime Commercial Rate.
<PAGE> 19
All interest shall be calculated on the basis of a 360 day year
for the actual number of days the Principal Sum or any part thereof remains
unpaid.
As used herein, "Prime Commercial Rate" shall mean the rate
established by the Bank from time to time based on its consideration of
economic, money market, business and competitive factors. The Prime Commercial
Rate is not necessarily the Bank's most favored rate. Subject to any maximum
or minimum interest rate limitation specified herein or by applicable law, any
variable rate of interest on the obligation evidenced hereby shall change
automatically without notice to the undersigned immediately with each change in
the Prime Commercial Rate.
MANNER OF PAYMENT
The Principal Sum shall be due and payable on April 30, 1995, and
at maturity, whether by demand, acceleration or otherwise. Accrued interest
shall be due and payable monthly beginning on July 1, 1994, and continuing on
the first day of each month thereafter, and at maturity, whether by demand,
acceleration or otherwise.
LATE CHARGE
Any installment or other payment not made within ten (10) days of
the date such payment or installment is due shall be subject to a late charge
equal to 5% of the amount of the installment or payment.
DEFAULT
Upon the occurrence of any of the following events:
(a) the undersigned fails to make any payment of
interest or of the Principal Sum on or before the date such
payment is due;
(b) an "Event of Default" under the Loan Agreement shall
have occurred and be continuing;
then the Bank may, at its option, without notice or demand, accelerate the
maturity of the obligations evidenced hereby, which obligations shall become
immediately due and payable. In the event the Bank shall institute any action
for the enforcement or collection of the obligations evidenced hereby, the
undersigned agrees to pay all costs and expenses of such action, including
reasonable attorneys' fees, to the extent permitted by law.
GENERAL PROVISIONS
Each of the parties executing this Note, and any indorser, surety,
or guarantor, hereby jointly and severally waive presentment, notice of
dishonor, protest, notice of protest, and diligence in bringing suit against
any party hereto, waive the defenses of impairment of collateral for the
obligation evidenced hereby, impairment of a person against whom the Bank has
any right of recourse, and any defenses of any accommodation maker and consent
that without discharging any of them the time of payment and any other
provision of this promissory note may be extended or modified an unlimited
number of times before or after maturity without notice to the undersigned.
Each of the undersigned jointly and severally agrees that it will pay the
obligations evidenced hereby, irrespective of any action or lack of action on
the Bank's part in connection with the acquisition, perfection, possession,
enforcement, disposition, or modification of all the obligations evidenced
hereby or any and all security therefore, and no omission or delay on the
Bank's part in exercising any right against, or taking any action to collect
from or pursue the Bank's remedies against any party hereto will release,
discharge, or modify the duties of the undersigned, or any of them, to make
payments hereunder. Each of the undersigned agrees that the Bank, without
notice to or further consent from the undersigned, may release or modify any
collateral, security, document or other guaranties now held or hereafter
acquired, or substitute other collateral, security or other guaranties, and no
such action
- 2 -
<PAGE> 20
will release, discharge or modify the duties of the undersigned, or any of them,
hereunder. Each of the undersigned agrees that the Bank will not be required to
pursue or exhaust any of its rights or remedies against the undersigned, or any
of them, or any guarantors of the obligations evidenced hereby with respect to
the payment of any said obligations, or to pursue, exhaust or preserve any of
the Bank's rights or remedies with respect to any collateral, security or other
guaranties given to secure said obligations. Each of the undersigned waives any
claim or other right which it might now have or hereafter acquire against any
other person or entity that is primarily or contingently liable on the
obligations that arise from the existence or performance of each of the
undersigned's obligations under this Note, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
or any right to participate in any claim or remedy of the Bank or any collateral
security which the Bank now has or hereafter acquires, whether such claim,
remedy or right arises in equity, under contract or statute, at common law, or
otherwise.
The obligations evidenced hereby may from time to time be
evidenced by another note or notes given in substitution, renewal or extension
hereof. Any security interest or mortgage which secures the obligations
evidenced hereby shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension.
The captions used herein are for references only and shall not be
deemed a part of this Note. If any of the terms or provisions of this Note
shall be deemed unenforceable, the enforceability of the remaining terms and
provisions shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT, AS TO ANY AND ALL
DISPUTES THAT MAY ARISE BETWEEN THE UNDERSIGNED, OR ANY OF THEM, AND THE BANK,
THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD
MAKE ANY SUCH DISPUTE OR DISPUTES UNSUITABLE FOR TRIAL BY JURY. ACCORDINGLY,
EACH OF THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
WARRANT OF ATTORNEY
Each of the undersigned authorizes any attorney at law to appear
in any Court of Record in the State of Ohio or in any state or territory of the
United States after the above indebtedness becomes due, whether by acceleration
or otherwise, to waive the issuing and service of process, and to confess
judgment against any one or more of the undersigned in favor of the Bank for
the amount then appearing due together with costs of suit, and thereupon to
waive all errors and all rights of appeal and stays of execution. No such
judgment or judgments against less than all of the undersigned shall be a bar
to a subsequent judgment or judgments against any one or more of the
undersigned against whom judgment has not been obtained hereon, this being a
joint and several warrant of attorney to confess judgment.
WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT
YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
METATEC CORPORATION
By:____________________________________
Its:___________________________________
- 3 -
<PAGE> 21
WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT
YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
METATEC/DISCOVERY SYSTEMS, INC.
By:____________________________________
Its:___________________________________
- 4 -
<PAGE> 22
EXHIBIT A-2
THE HUNTINGTON NATIONAL BANK
DRAW/TERM NOTE
===============================================================================
City Office Division Branch [XX] Secured
-------------------- --------- ----
Account No. Note No. [ ] Unsecured
----------------------------- ------------
Account Name METATEC CORPORATION AND METATEC/DISCOVERY SYSTEMS, INC.
[XX] Corporations [ ] Partnership [ ] Individual/Proprietorship
[ ] Other
--------------------------------------------------------------------
===============================================================================
$4,300,000.00 Columbus, Ohio May 13, 1994
FOR VALUE RECEIVED, the undersigned, jointly and severally,
promise to pay to the order of The Huntington National Bank (hereinafter called
the "Bank," which term shall include any holder hereof) at such place as the
Bank may designate or, in the absence of such designation, at any of the Bank's
offices, the sum of Four Million Three Hundred Thousand Dollars ($4,300,000.00)
or so much thereof as shall have been advanced by the Bank at any time and not
thereafter repaid (hereinafter referred to as "Principal Sum") together with
interest as hereinafter provided and payable at the time and in the manner
hereinafter provided. The proceeds of the loan evidenced hereby may be
advanced in partial amounts prior to November 30, 1994, at which time the
ability of the undersigned to obtain advances hereunder shall terminate. Each
such advance shall be made to the undersigned upon receipt by the Bank of the
undersigned's application therefor and disbursement instructions, which shall
be in such form as the Bank shall from time to time prescribe. The Bank shall
be entitled to rely on any oral or telephonic communication requesting an
advance and/or providing disbursement instructions hereunder, which shall be
received by it in good faith from anyone reasonably believed by the Bank to be
the undersigned, or the undersigned's authorized agent. The undersigned agree
that all advances made by the Bank will be evidenced by entries made by the
Bank into its electronic data processing system and/or internal memoranda
maintained by the Bank. The undersigned further agree that the sum or sums
shown on the most recent printout from the Bank's electronic data processing
system and/or on such memoranda shall be rebuttably presumptive evidence of the
amount of the Principal Sum and of the amount of any accrued interest.
This draw/term note (this "Note") is executed and the advances
contemplated hereunder are to be made pursuant to a Loan Agreement by and
between the undersigned and the Bank dated May 13, 1994, and all amendments,
modifications, and supplements thereto from time to time (hereinafter called
the "Loan Agreement"), and all the covenants, representations, agreements,
terms, and conditions contained therein, including but not limited to
additional conditions of default, are incorporated herein as if fully
rewritten.
INTEREST
Interest will accrue on the unpaid balance of the Principal Sum
until paid at a variable rate of interest per annum, which shall change in the
manner set forth below, equal to the Prime Commercial Rate for the period
beginning with the date hereof, and continuing through and including November
30, 1994. Beginning on December 1, 1994, interest will accrue on the unpaid
balance of the Principal Sum until paid at a variable rate of interest per
annum, which shall change in the manner set forth below, equal to one-half of
one percentage point in excess of the Prime Commercial Rate.
<PAGE> 23
Upon the occurrence of an "Event of Default" pursuant to the Loan
Agreement, interest will accrue on the unpaid balance of the Principal Sum and
unpaid interest, if any, at a variable rate of interest per annum, which shall
change in the manner set forth below, equal to three and one-half percentage
points in excess of the Prime Commercial Rate.
All interest shall be calculated on the basis of a 360 day year
for the actual number of days the Principal Sum or any part thereof remains
unpaid.
As used herein, "Prime Commercial Rate" shall mean the rate
established by the Bank from time to time based on its consideration of
economic, money market, business and competitive factors. The Prime Commercial
Rate is not necessarily the Bank's most favored rate. Subject to any maximum
or minimum interest rate limitation specified herein or by applicable law, any
variable rate of interest on the obligation evidenced hereby shall change
automatically without notice to the undersigned immediately with each change in
the Prime Commercial Rate.
MANNER OF PAYMENT
Accrued interest shall be due and payable monthly beginning on
, 1994, and continuing on the first day of each month thereafter,
- --------------
and at maturity, whether by demand, acceleration or otherwise. The Principal
Sum shall be due and payable in sixty consecutive monthly installments
beginning on December 31, 1994, and continuing on the last day of each month
thereafter, and at maturity, whether by demand, acceleration or otherwise.
Each installment of Principal Sum shall be in an amount equal to one-sixtieth
(1/60) of the Principal Sum outstanding as of November 30, 1994, except the
final installment shall be for the unpaid balance.
LATE CHARGE
Any installment or other payment not made within ten (10) days of
the date such payment or installment is due shall be subject to a late charge
equal to 5% of the amount of the installment or payment.
SECURITY
This Note is secured by the security interests and assignments
granted and/or referenced in a certain Security Agreement - Equipment executed
by each of the undersigned dated of even date herewith.
DEFAULT
Upon the occurrence of any of the following events:
(a) the undersigned fails to make any payment of
interest or of the Principal Sum on or before five days after the
date such payment is due; or
(b) an "Event of Default" under the terms of the Loan
Agreement shall have occurred and be continuing;
then the Bank may, at its option, without notice or demand, accelerate the
maturity of the obligations evidenced hereby, which obligations shall become
immediately due and payable. In the event the Bank shall institute any action
for the enforcement or collection of the obligations evidenced hereby, the
undersigned agrees to pay all costs and expenses of such action, including
reasonable attorneys' fees, to the extent permitted by law.
GENERAL PROVISIONS
Each of the parties executing this Note, and any indorser, surety,
or guarantor, hereby jointly and severally waive presentment, notice of
dishonor, protest, notice of protest, and diligence in bringing suit against
any party hereto, waive the defenses of impairment of collateral for the
obligation evidenced hereby, impairment of a person against whom the Bank has
any right of recourse, and any defenses of any accommodation maker and consent
that
- 2 -
<PAGE> 24
without discharging any of them the time of payment and any other provision of
this promissory note may be extended or modified an unlimited number of times
before or after maturity without notice to the undersigned. Each of the
undersigned jointly and severally agrees that it will pay the obligations
evidenced hereby, irrespective of any action or lack of action on the Bank's
part in connection with the acquisition, perfection, possession, enforcement,
disposition, or modification of all the obligations evidenced hereby or any and
all security therefore, and no omission or delay on the Bank's part in
exercising any right against, or taking any action to collect from or pursue
the Bank's remedies against any party hereto will release, discharge, or modify
the duties of the undersigned, or any of them, to make payments hereunder.
Each of the undersigned agrees that the Bank, without notice to or further
consent from the undersigned, may release or modify any collateral, security,
document or other guaranties now held or hereafter acquired, or substitute
other collateral, security or other guaranties, and no such action will
release, discharge or modify the duties of the undersigned, or any of them,
hereunder. Each of the undersigned agrees that the Bank will not be required
to pursue or exhaust any of its rights or remedies against the undersigned, or
any of them, or any guarantors of the obligations evidenced hereby with respect
to the payment of any said obligations, or to pursue, exhaust or preserve any
of the Bank's rights or remedies with respect to any collateral, security or
other guaranties given to secure said obligations. Each of the undersigned
waives any claim or other right which it might now have or hereafter acquire
against any other person or entity that is primarily or contingently liable on
the obligations that arise from the existence or performance of each of the
undersigned's obligations under this Note, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution,
indemnification, or any right to participate in any claim or remedy of the Bank
or any collateral security which the Bank now has or hereafter acquires,
whether such claim, remedy or right arises in equity, under contract or
statute, at common law, or otherwise.
The obligations evidenced hereby may from time to time be
evidenced by another note or notes given in substitution, renewal or extension
hereof. Any security interest or mortgage which secures the obligations
evidenced hereby shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension.
The captions used herein are for references only and shall not be
deemed a part of this Note. If any of the terms or provisions of this Note
shall be deemed unenforceable, the enforceability of the remaining terms and
provisions shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT, AS TO ANY AND ALL
DISPUTES THAT MAY ARISE BETWEEN THE UNDERSIGNED, OR ANY OF THEM, AND THE BANK,
THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD
MAKE ANY SUCH DISPUTE OR DISPUTES UNSUITABLE FOR TRIAL BY JURY. ACCORDINGLY,
EACH OF THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY AS TO ANY AND
ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO ANY OF THE OTHER
INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
WARRANT OF ATTORNEY
Each of the undersigned authorizes any attorney at law to appear
in any Court of Record in the State of Ohio or in any state or territory of the
United States after the above indebtedness becomes due, whether by acceleration
or otherwise, to waive the issuing and service of process, and to confess
judgment against any one or more of the undersigned in favor of the Bank for
the amount then appearing due together with costs of suit, and thereupon to
waive all errors and all rights of appeal and stays of execution. No such
judgment or judgments against less than all of the undersigned shall be a bar
to a subsequent judgment or judgments against any one or more of the
undersigned against whom judgment has not been obtained hereon, this being a
joint and several warrant of attorney to confess judgment.
- 3 -
<PAGE> 25
WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT
YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
METATEC CORPORATION
By:
------------------------------------------
Its:
-----------------------------------------
WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT
YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
METATEC/DISCOVERY SYSTEMS, INC.
By:
------------------------------------------
Its:
-----------------------------------------
- 4 -
<PAGE> 26
EXHIBIT B
SCHEDULE OF PERMITTED ENCUMBRANCES
<TABLE>
<CAPTION>
Maximum Amount
Secured Party Description of Items of Obligation
- ------------- -------------------- -------------
<S> <C> <C>
METATEC CORPORATION:
- -------------------
AGFA Financial Proset 9550 System See below
Services, Inc.
METATEC/DISCOVERY SYSTEMS, INC.:
- -------------------------------
AT&T Credit System 25
Corporation Telecommunications
Equipment
Pitney Bowes All Equipment manufactured,
Credit Corporation sold or distributed
by Secured Party, Pitney
Bowes, Inc., Monarch Marketing
Systems, Inc., Dictaphone
Corp. or V.I.P.
Xerox Corporation Xerox 5100 Copier Sum of all the
foregoing is approximately
$225,000
Huntington National Bank Prior encumbrance
on leasehold interest
Trade payables Normal terms
Jeffrey M. Wilkins Office and $4,800,000
manufacturing
facility
</TABLE>
<PAGE> 1
Exhibit 10(d)
FIRST AMENDMENT TO LOAN AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") to the Loan Agreement is
entered into as of the 1st day of September, 1994, by and between Metatec
Corporation, Metatec/Discovery Systems, Inc. (collectively, on a joint and
several basis, the "Company") and The Huntington National Bank (the "Bank").
RECITALS:
A. As of May 13, 1994, the Company and the Bank executed a
certain Loan Agreement (the "Loan Agreement") which sets forth the terms of
certain extensions of credit to the Company; and
B. In connection with the Loan Agreement, the Company
executed and delivered to the Bank certain other loan documents, a revolving
promissory note, a draw term promissory note, a security agreement for
equipment, uniform commercial code financing statements, certificates,
agreements, and instruments in connection with the indebtedness referred to in
the Loan Agreement (all of the foregoing are collectively referred to as the
"Loan Documents"); and
C. The Company and the Bank desire to extend additional
credit to the Company subject to specific terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants,
agreements and promises contained herein, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound, the parties hereto
for themselves and their successors and assigns do hereby agree, represent and
warrant as follows:
1. Definitions. All capitalized terms not otherwise
defined herein shall have the same meanings ascribed to them in the Loan
Agreement.
2. A new Section 1.4 is hereby added to the Loan Agreement
and shall recite in its entirety:
1.4 The Mortgage Loan. The Bank, subject to the terms and
conditions hereof, will make loans and advances to the
Company on a secured basis in the principal amount of
$4,800,000.00 (the "Mortgage Loan").
3. The first sentence of Section 1.3, "Limitations of
Advances," of the Loan Agreement is hereby amended to recite in its entirety:
The Term Loan, the Revolving Loan, and the Mortgage Loan are
hereinafter sometimes collectively referred to as the "Loan."
The remainder of Section 1.3 shall remain as originally written.
4. Section 2.1, "Interest Rates and Evidence of Loan," is
hereby amended to recite in its entirety:
- 1 -
<PAGE> 2
Interest Rates and Evidence of Loan. The Company agrees to pay
the Bank monthly interest on the unpaid balance of the Loan at
the rates of interest and in the manner set forth in the notes
evidencing the Loan. In addition, the Company agrees to make
principal payments in the manner set forth in the notes
evidencing the Loan. The Loan shall be evidenced by promissory
notes executed of even date herewith and by a mortgage note
dated September 1, 1994, or evidenced by promissory notes
subsequently executed in substitution therefor or addition
therewith, each in substantially the form set forth in Exhibits
A-1 and A-2 to the Loan Agreement and in Exhibit A-3 to a
certain First Amendment to Loan Agreement dated September 1, 1994
Repayment of the Loan shall be made in accordance with the terms
of the notes then outstanding pursuant to the Loan Agreement and
this Amendment. Each advance request of the Company under the
Term Loan, the Revolving Loan or the Mortgage Loan shall be
accompanied by such documents or communications acceptable to
the Bank in its sole and absolute discretion.
5. Section 2.3, "Use of Proceeds," is hereby amended to
add the following sentence at the end of Section 2.3:
The net proceeds of the Mortgage Loan will be used (a) to finance
the purchase of approximately seven acres of real estate together
with the improvements thereon currently leased to the Company and
owned by Jeffrey M. Wilkins and (b) to finance the permanent
improvements to the Company's facility located on approximately
eight acres of adjoining real estate.
6. A new Section 3.2 is hereby added to the Loan Agreement
and shall recite in its entirety:
3.2 Security for the Mortgage Loan. The Mortgage Loan
shall be secured by a first and exclusive mortgage,
assignment of rents and security interest in real
estate located at 7001 Metatec Blvd., Columbus, Ohio,
further described in a certain Open-End Mortgage,
Assignment of Rents and Security Agreement executed by
the Company, dated of even date herewith (the
"Mortgage").
7. Section 7.1, "Events of Default," subsection (d) is
hereby amended to recite in its entirety:
- 2 -
<PAGE> 3
(d) The Company fails to perform or observe any agreement,
term, or covenant contained in the Security Agreements,
or in the Mortgage, and such failure continues for more
than ten (10) days after such failure shall first
become known to any officer of the Company;
8. Mortgage Note. Concurrently with the execution of this
Amendment, the Company shall execute and deliver to the Bank a promissory note
the "Mortgage Note" in the form of Exhibit A-3 to this Amendment to evidence
the "Mortgage Loan," as that term is defined in the Loan Agreement, as amended
hereby.
9. Conditions of Effectiveness. This Amendment shall
become effective as of September 1, 1994, upon satisfaction of all of the
following conditions precedent:
(a) The Bank shall have received two duly executed copies
of the First Amendment to Loan Agreement and such other certificates,
instruments, documents, agreements, and opinions of counsel as may be required
by the Bank, each of which shall be in form and substance satisfactory to the
Bank and its counsel; and
(b) The representations contained in paragraph 10 below
shall be true and accurate; and
(c) The Company shall execute and deliver to the Bank all
of the documents required by, and shall have performed and complied to the
satisfaction of the Bank and its counsel with all the agreements and conditions
contained in Exhibit 9(c) to this Amendment (see conditions on Closing Memo).
10. Representations. The Company represents and warrants
that after giving effect to this Amendment (a) each and every one of the
representations and warranties made by or on behalf of the Company in the Loan
Agreement or in the Loan Documents is true and correct in all respects on and
as of the date hereof, except to the extent that any of such representations
and warranties related, by the express terms thereof, solely to a date prior
hereto; (b) the Company has duly and properly performed, complied with and
observed each of its covenants, agreements and obligations contained in the
Loan Agreement and Loan Documents; and (c) no event has occurred or is
continuing, and no condition exists which would constitute an Event of Default.
11. Amendment to Loan Agreement. (a) Upon the
effectiveness of this Amendment, each reference in the Loan Agreement to "this
Agreement" "hereunder," "hereof," "herein" or words of similar import, and each
reference in the Loan Documents to the Loan Agreement, shall mean and be a
reference to the Loan Agreement as amended hereby. (b) Except as modified
herein, all of the representations, warranties, terms, convenants and
conditions of the Loan Agreement, the Loan Documents and all other agreements
executed in connection therewith shall remain as written originally and in full
force and effect in accordance with their respective terms, and nothing herein
shall affect, modify,
- 3 -
<PAGE> 4
limit or impair any of the rights and powers which the Bank may have
thereunder. (c) The amendment set forth herein shall be limited precisely as
provided for herein, and shall not be deemed to be a waiver of, amendment of,
consent to or modification of any of the Bank's rights under or of any other
term or provisions of the Loan Agreement, any Loan Document, or other agreement
executed in connection therewith, or of any term or provision of any other
instrument referred to therein or herein or of any transaction or future action
on the part of the Company which would require the consent of the Bank. (d)
The Company ratifies and confirms each term, provision, condition and covenant
set forth in the Loan Agreement and the Loan Documents and acknowledges that
the agreement set forth therein continue to be legal, valid and binding
agreements, and enforceable in accordance with their respective terms.
12. Authority. The Company hereby represents and warrants
to the Bank that (a) the Company has legal power and authority to execute and
deliver the within Amendment; (b) the officer executing the within Amendment on
behalf of the Company has been duly authorized to execute and deliver the same
and bind the Company with respect to the provisions provided for herein; (c)
the execution and delivery hereof by the Company and the performance and
observance by the Company of the provisions hereof do not violate or conflict
with the articles of incorporation, regulations or by-laws of the Company; (d)
the execution and delivery hereof by the Company and the performance and
observance by the Company of the provisions hereof do not violate or conflict
with any law applicable to the Company or result in the breach of any provision
of or constitute a default under any agreement, instrument or document binding
upon or enforceable against the Company, except to the extent that such
violation, conflict, breach, or default will not materially and adversely
affect the business, properties or condition (financial or otherwise) of the
Company; and (e) this Amendment constitutes a valid and legally binding
obligation upon the Company in every respect.
13. Counterparts. This Amendment may be executed in two or
more counterparts, each of which, when so executed and delivered, shall be an
original, but all of which together shall constitute one and the same document.
Separate counterparts may be executed with the same effect as if all parties
had executed the same counterparts.
14. Governing Law. This Amendment shall be governed by and
construed in accordance with the law of the State of Ohio.
IN WITNESS WHEREOF, the Company and the Bank have hereunto set
their hands at Columbus, Ohio on the date first set forth above.
THE COMPANY:
METATEC CORPORATION
By: /s/ William H. Largent
--------------------------------------
Its: Vice President - Finance
-------------------------------------
- 4 -
<PAGE> 5
METATEC/DISCOVERY SYSTEMS, INC.
By: /s/ Gregory T. Tillar
--------------------------------------
Its: C.O.O.
-------------------------------------
THE BANK:
THE HUNTINGTON NATIONAL BANK
By: /s/ Daniel W. Huffman
-------------------------------------
Its: Assistant Vice President
------------------------------------
- 5 -
<PAGE> 6
EXHIBIT A-3
THE HUNTINGTON NATIONAL BANK
MORTGAGE NOTE
===============================================================================
City Office Division Branch [X] Secured
---------------- ---------- ----------
Account No. Note No. [ ] Unsecured
----------------------------- ------------
Account Name METATEC CORPORATION AND METATEC/DISCOVERY SYSTEMS, INC.
[XXX] corporation [ ] partnership [ ] individual/proprietorship
[ ] other
-------------------------------------------------------------------
===============================================================================
$4,800,000.00 Columbus, Ohio September 1, 1994
FOR VALUE RECEIVED, the undersigned, jointly and severally,
promise to pay to the order of The Huntington National Bank (hereinafter
"Bank," which term shall include any holder hereof) at its office located at 41
South High Street, Columbus, Ohio, or at such other place as Bank may
designate, Four Million Eight Hundred Thousand Dollars ($4,800,000.00)
(hereinafter the "Principal Sum"), together with interest from the date of
disbursement at the applicable rate set forth below. The undersigned promise
to pay the Principal Sum and the interest thereon at the times and in the
manner hereinafter provided in this note (this "Note").
This Note is executed and the advance contemplated hereunder are
to be made pursuant to a Loan Agreement by and between the undersigned and the
Bank dated May 13, 1994, and a First Amendment to Loan Agreement by and between
the undersigned and the Bank dated September 1, 1994, and all amendments,
modifications, and supplements thereto from time to time (hereinafter called
the "Loan Agreement"), and all the covenants, representations, agreements,
terms, and conditions contained therein, including but not limited to
additional conditions of default, are incorporated herein as if fully
rewritten.
INTEREST
Interest will accrue on the unpaid balance of the Principal Sum
until paid at a variable interest rate equal to one-half of one percent (1/2%)
per annum in excess of the Prime Commercial Rate of The Huntington National
Bank from time to time in effect.
MANNER OF PAYMENT
Payments only of accrued interest on the Principal Sum shall be
due and payable beginning October 1, 1994, and continuing on the first day of
each month thereafter through and including January 1, 1995. Thereafter, the
Principal Sum and accrued interest shall be due and payable in thirty-six
consecutive monthly payments of $46,566.74 beginning February 1, 1995, and
continuing on the first day of each month thereafter until maturity, whether
maturity occurs by lapse of time or acceleration, or otherwise; provided,
however, if the monthly installments made during any calendar quarter shall be
insufficient to pay the accrued interest on the Principal Sum plus the
scheduled principal reduction for such calendar quarter pursuant to the
amortization schedule attached hereto as Exhibit A (the "Amortization
Schedule"), the undersigned, once each calendar quarter, within five days after
notice from the Bank of additional amounts due and payable of the Principal
Sum, agrees to pay such additional payments of the Principal Sum as shall be
required to reduce the Principal Sum to an amount
<PAGE> 7
not exceeding the scheduled Principal Sum under the Amortization Schedule as of
the end of such calendar quarter.
One final payment in the amount of the unpaid principal balance
and accrued, unpaid interest shall be due and payable on January 1, 1998
(hereinafter the "Maturity Date").
All interest shall be calculated on the basis of a 360-day year
for the actual number of days the Principal Sum or any part thereof remains
unpaid.
Upon the occurrence of an "Event of Default" pursuant to the Loan
Agreement, interest will accrue on the unpaid balance of the Principal Sum and
unpaid interest, if any, at a variable rate of interest per annum, which shall
change in the manner set forth below equal to three and one-half percent per
annum in excess of the Prime Commercial Rate from time to time in effect.
As used herein, "Prime Commercial Rate" shall mean the interest
rate established by The Huntington National Bank (hereinafter "Bank"),
Columbus, Ohio, from time to time based upon its consideration of economic,
money market, business and competitive factors, and it is not necessarily the
Bank's most favored rate. Subject to any maximum or minimum interest rate
limitation specified herein or by applicable law, any variable rate of interest
on the obligation evidenced hereby shall change automatically without notice to
the undersigned immediately with each change in the Prime Commercial Rate.
LATE CHARGE
Any installment or other payment not made within ten (10) days of
the date such payment or installment is due shall be subject to a late charge
equal to five percent of the amount of the installment or payment.
DEFAULT
Upon the occurrence of any of the following events:
(a) the undersigned fails to make any monthly
installment of the accrued interest and Principal Sum on or
before the date such installment is due;
(b) an "Event of Default" under the Loan Agreement
shall have occurred and be continuing;
then the Bank may, at its option, without notice or demand, accelerate maturity
of the obligations evidenced hereby, which obligations shall become immediately
due and payable. In the event the Bank shall institute any action for the
enforcement or collection of the obligations evidenced hereby, the undersigned
agrees to pay all costs and expenses of such action, including reasonable
attorneys' fees, to the extent permitted by law.
SECURITY
This Note is secured by a Mortgage, Assignment of Rents and
Security Agreement (herein "Mortgage") encumbering property located in Franklin
County, Ohio executed by Metatec Corporation dated of even date herewith, and
shall be construed in accordance with the laws of the State of Ohio. The
obligations evidenced hereby may from time to time be evidenced by another
promissory note or notes given in substitution, renewal or extension hereof,
and the Mortgage shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension. All remedies provided for herein upon any
default by the undersigned shall be cumulative and not exclusive.
GENERAL PROVISIONS
Each of the parties executing this Note, and any indorser, surety,
or guarantor, hereby jointly and severally waive presentment, notice of
dishonor, protest, notice of protest, and diligence in bringing suit against
any party hereto, waive the defenses of impairment of collateral for the
obligation evidenced hereby, impairment of a person against whom the Bank has
any right
- 2 -
<PAGE> 8
of recourse, and any defenses of any accommodation maker and consent that
without discharging any of them the time of payment and any other provision of
this promissory note may be extended or modified an unlimited number of times
before or after maturity without notice to the undersigned. Each of the
undersigned jointly and severally agrees that it will pay the obligations
evidenced hereby, irrespective of any action or lack of action on the Bank's
part in connection with the acquisition, perfection, possession, enforcement,
disposition, or modification of all the obligations evidenced hereby or any and
all security therefore, and no omission or delay on the Bank's part in
exercising any right against, or taking any action to collect from or pursue
the Bank's remedies against any party hereto will release, discharge, or modify
the duties of the undersigned, or any of them, to make payments hereunder.
Each of the undersigned agrees that the Bank, without notice to or further
consent from the undersigned, may release or modify any collateral, security,
document or other guaranties now held or hereafter acquired, or substitute
other collateral, security or other guaranties, and no such action will
release, discharge or modify the duties of the undersigned, or any of them,
hereunder. Each of the undersigned agrees that the Bank will not be required
to pursue or exhaust any of its rights or remedies against the undersigned, or
any of them, or any guarantors of the obligations evidenced hereby with respect
to the payment of any said obligations, or to pursue, exhaust or preserve any
of the Bank's rights or remedies with respect to any collateral, security or
other guaranties given to secure said obligations. Each of the undersigned
waives any claim or other right which it might now have or hereafter acquire
against any other person or entity that is primarily or contingently liable on
the obligations that arise from the existence or performance of each of the
undersigned's obligations under this Note, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution,
indemnification, or any right to participate in any claim or remedy of the Bank
or any collateral security which the Bank now has or hereafter acquires,
whether such claim, remedy or right arises in equity, under contract or
statute, at common law, or otherwise.
The obligations evidenced hereby may from time to time be
evidenced by another note or notes given in substitution, renewal or extension
hereof. Any security interest or mortgage which secures the obligations
evidenced hereby shall remain in full force and effect notwithstanding any such
substitution, renewal, or extension.
The captions used herein are for references only and shall not be
deemed a part of this Note. If any of the terms or provisions of this Note
shall be deemed unenforceable, the enforceability of the remaining terms and
provisions shall not be affected. This Note shall be governed by and construed
in accordance with the law of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER
THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR (2) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT
TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR
THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER
SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
WARRANT OF ATTORNEY
Each of the undersigned authorizes any attorney at law to appear
in any Court of Record in the State of Ohio or in any state or territory of the
United States after the above indebtedness becomes due, whether by acceleration
or otherwise, to waive the issuing and service of process, and to confess
judgment against any one or more of the undersigned in favor of the Bank for
the amount then appearing due together with costs of suit, and thereupon to
waive all errors and all rights of appeal and stays of execution. No such
judgment or judgments against less than all of the undersigned shall be a bar
to a subsequent judgment
- 3 -
<PAGE> 9
or judgments against any one or more of the undersigned against whom judgment
has not been obtained hereon, this being a joint and several warrant of
attorney to confess judgment.
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
METATEC CORPORATION
By:
--------------------------------------
Its:
-------------------------------------
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT
TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU
WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT
FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR
RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT,
OR ANY OTHER CAUSE.
METATEC/DISCOVERY SYSTEMS, INC.
By:
--------------------------------------
Its:
-------------------------------------
- 4 -
<PAGE> 10
EXHIBIT 9(c)
CLOSING MEMORANDUM
THE HUNTINGTON NATIONAL BANK ("HNB")
LOANS TO METATEC CORPORATION ("MC")
AND METATEC/DISCOVERY SYSTEMS, INC. ("MDS")
C/M # 266900-81645
I. PARTIES:
<TABLE>
<S> <C>
HNB:
The Huntington National Bank Daniel W. Huffman
41 South High Street Assistant Vice President
Columbus, Ohio 43215 (614) 480-5519
(614) 480-3066 (Fax)
Attorneys for HNB:
Porter, Wright, Morris & Arthur Timothy E. Grady/
("PWMA") Donald W. Jordan
41 South High Street (614) 227-2105/227-2185
Columbus, Ohio 43215 (614) 227-2100 (Fax)
Susan E. Portwood (paralegal)
(614) 227-2173
(614) 227-2100 (Fax)
MC:
Metatec Corporation William H. Largent,
7001 Metatec Blvd. Executive Vice President &
Dublin, Ohio 43017 Chief Financial Officer
(614) 761-2000
MDS:
Metatec/Discovery Systems, Inc.
7001 Metatec Blvd.
Dublin, Ohio 43017
Attorneys for MC and MDS:
Baker & Hostetler ("BH") Kevin H. Connor
65 East State Street (614) 228-1541
Columbus, Ohio 43215 (614) 462-2616 (Fax)
</TABLE>
II. CLOSING DOCUMENTS:
<PAGE> 11
A. Loan Documents
<TABLE>
<CAPTION>
Responsible
Party
- -----------
<S> <C> <C>
BH 1. Certified Corporate Resolutions authorizing
execution of loan documents for MC (form to
be provided by PWMA)
PWMA 2. Closing Certificate of MC with the following
Exhibits (in place from 5/13/94):
PWMA a. Good Standing Certificates - Florida and
Ohio
PWMA b. Certified Articles of Incorporation
BH c. Bylaws
BH 3. Certified Corporate Resolutions authorizing
execution of loan documents for MDS (form to
be provided by PWMA)
PWMA 4. Closing Certificate of MDS with the following
Exhibits (in place from 5/13/94):
PWMA a. Good Standing Certificates - Ohio
PWMA b. Certified Articles of Incorporation
BH c. Bylaws
PWMA 5. First Amendment to Loan Agreement with the
following exhibit:
a. $4,800,000.00 Mortgage Note
PWMA 6. $4,800,000.00 Mortgage Note
PWMA 7. Open-End Mortgage, Assignment of Rents and
Security Agreement - Dublin, Franklin County,
Ohio Property
PWMA 8. Borrower's Affidavit
PWMA 9. Loan Expense and Disbursement Statement
PWMA 10. UCC-1 Financing Statements and other
perfection devices for MC
a. Ohio Secretary of State
b. Franklin County, Ohio Recorder (personal
property records)
c. Franklin County, Ohio Recorder (fixtures
- real estate records)
d. other locations, if necessary
</TABLE>
B. Real Estate Closing Requirements
- 2 -
<PAGE> 12
<TABLE>
<S> <C> <C>
SERVICE
TITLE 11. Mortgagee's Title Insurance Commitment and
Final Title Policy in an amount not less than
$4,800,000.00, with variable interest rate,
contiguity, and comprehensive endorsements
(see HNB title standards)
SERVICE
TITLE 12. Title Affidavits as required by title
insurance company
MC 13. Cancellations of Lease, Cross-Easement
Agreement, Party Wall Agreement
MC 14. As-Built Survey (see HNB survey standards)
HNB 15. Flood Hazard Certification (on survey)
MC 16. Insurance Certificates/Copies of Policies for
real estate and personal property situated
thereon naming HNB as loss payee, additional
insured and mortgagee
MC 17. Phase I Environmental Report
HNB 18. Appraisal
MC 19. Deed, Closing Statement, Other Buy-Sell
Documentation - Evidence of Purchase (Wilkins
Property)
MC 20. Completion Evidences
a. Certificate of Occupancy
b. A/A Certificate of Substantial Completion
c. Indemnity, Lien Waivers/Evidences of
Payment of Construction Costs (as
required by Title Company)
MC 21. Releases of Mortgage and UCC Financing
Statements (Wilkins Property)
PWMA 22. Instruction Letter (to Title Company)
C. Miscellaneous Closing Requirements
BH 23. Borrowers' Counsel Opinion
HNB 24. Final Approval of Credit Facility
PWMA 25. Such other documents as HNB or its counsel
may require after further review of
documentation
</TABLE>
- 3 -
<PAGE> 13
EXHIBIT A
AMORTIZATION SCHEDULE - FIXED MONTHLY PAYMENT
Interest: 8.25%
Loan Amount: $4,800,000.00
Term (Years): 15.00
Payment (monthly): $46,566.74
Payments Start: 10/2/94
<TABLE>
<CAPTION>
Excess
Month Principal Interest Payments Balance Last Payment
<S> <C> <C> <C> <C> <C>
Oct-94 13566.74 33000.00 4786433.26
Nov-94 13660.01 32906.73 4772773.25
Dec-94 13753.92 32812.82 4759019.33
Jan-95 13848.48 32718.26 4745170.85
Feb-95 13943.69 32623.05 4731227.17
Mar-95 14039.55 32527.19 4717187.62
Apr-95 14136.07 32430.66 4703051.54
May-95 14233.26 32333.48 4688818.29
Jun-95 14331.11 32235.63 4674487.17
Jul-95 14429.64 32137.10 4660057.54
Aug-95 14528.84 32037.90 4645528.70
Sep-95 14628.73 31938.01 4630899.97
Oct-95 14729.30 31837.44 4616170.67
Nov-95 14830.56 31736.17 4601340.10
Dec-95 14932.52 31634.21 4586407.58
Jan-96 15035.19 31531.55 4571372.39
Feb-96 15138.55 31428.19 4556233.84
Mar-96 15242.63 31324.11 4540991.21
Apr-96 15347.42 31219.31 4525643.79
May-96 15452.94 31113.80 4510190.85
Jun-96 15559.18 31007.56 4494631.68
Jul-96 15666.14 30900.59 4478965.54
Aug-96 15773.85 30792.89 4463191.69
Sep-96 15882.29 30684.44 4447309.39
Oct-96 15991.49 30575.25 4431317.91
Nov-96 16101.43 30465.31 4415216.48
Dec-96 16212.12 30354.61 4399004.36
Jan-97 16323.58 30243.15 4382680.77
Feb-97 16435.81 30130.93 4366244.97
Mar-97 16548.80 30017.93 4349696.16
Apr-97 16662.58 29904.16 4333033.59
May-97 16777.13 29789.61 4316256.46
Jun-97 16892.47 29674.26 4299363.98
Jul-97 17008.61 29558.13 4282355.37
Aug-97 17125.54 29441.19 4265229.83
Sep-97 17243.28 29323.46 4247986.55
Oct-97 17361.83 29204.91 4230624.72
Nov-97 17481.19 29085.54 4213143.53
Dec-97 17601.38 28965.36 4195542.15
Jan-98 17722.38 28844.35 4177819.76
Feb-98 17844.23 28722.51 4159975.54
Mar-98 17966.91 28599.83 4142008.63
Apr-98 18090.43 28476.31 4123918.21
May-98 18214.80 28351.94 4105703.41
Jun-98 18340.03 28226.71 4087363.38
</TABLE>
<PAGE> 14
AMORTIZATION SCHEDULE - FIXED MONTHLY PAYMENT
Interest: 8.25%
Loan Amount: $4,800,000.00
Term (Years): 15.00
Payment (monthly): $46,566.74
Payments Start: 10/2/94
<TABLE>
<CAPTION>
Excess
Month Principal Interest Payments Balance Last Payment
<S> <C> <C> <C> <C> <C>
Jul-98 18466.11 28100.62 4068897.27
Aug-98 18593.07 27973.67 4050304.20
Sep-98 18720.90 27845.84 4031583.30
Oct-98 18849.60 27717.14 4012733.70
Nov-98 18979.19 27587.54 3993754.51
Dec-98 19109.67 27457.06 3974644.83
Jan-99 19241.05 27325.68 3955403.78
Feb-99 19373.34 27193.40 3936030.44
Mar-99 19506.53 27060.21 3916523.91
Apr-99 19640.64 26926.10 3896883.28
May-99 19775.66 26791.07 3877107.61
Jun-99 19911.62 26655.11 3857195.99
Jul-99 20048.51 26518.22 3837147.48
Aug-99 20186.35 26380.39 3816961.13
Sep-99 20325.13 26241.61 3796636.00
Oct-99 20464.86 26101.87 3776171.13
Nov-99 20605.56 25961.18 3755565.57
Dec-99 20747.22 25819.51 3734818.35
Jan-2000 20889.86 25676.88 3713928.49
Feb-2000 21033.48 25533.26 3692895.01
Mar-2000 21178.08 25388.65 3671716.93
Apr-2000 21323.68 25243.05 3650393.24
May-2000 21470.28 25096.45 3628922.96
Jun-2000 21617.89 24948.85 3607305.07
Jul-2000 21766.51 24800.22 3585538.55
Aug-2000 21916.16 24650.58 3563622.39
Sep-2000 22066.83 24499.90 3541555.56
Oct-2000 22218.54 24348.19 3519337.02
Nov-2000 22371.30 24195.44 3496965.72
Dec-2000 22525.10 24041.64 3474440.62
Jan-2001 22679.96 23886.78 3451760.67
Feb-2001 22835.88 23730.85 3428924.78
Mar-2001 22992.88 23573.86 3405931.90
Apr-2001 23150.96 23415.78 3382780.95
May-2001 23310.12 23256.62 3359470.83
Jun-2001 23470.38 23096.36 3336000.45
Jul-2001 23631.73 22935.00 3312368.72
Aug-2001 23794.20 22772.53 3288574.52
Sep-2001 23957.79 22608.95 3264616.73
Oct-2001 24122.50 22444.24 3240494.23
Nov-2001 24288.34 22278.40 3216205.89
Dec-2001 24455.32 22111.42 3191750.57
Jan-2002 24623.45 21943.29 3167127.12
Feb-2002 24792.74 21774.00 3142334.38
Mar-2002 24963.19 21603.55 3117371.19
Apr-2002 25134.81 21431.93 3092236.38
May-2002 25307.61 21259.13 3066928.77
Jun-2002 25481.60 21085.14 3041447.17
Jul-2002 25656.79 20909.95 3015790.38
Aug-2002 25833.18 20733.56 2989957.20
Sep-2002 26010.78 20555.96 2963946.42
Oct-2002 26189.61 20377.13 2937756.82
Nov-2002 26369.66 20197.08 2911387.16
Dec-2002 26550.95 20015.79 2884836.21
Jan-2003 26733.49 19833.25 2858102.72
Feb-2003 26917.28 19649.46 2831185.44
</TABLE>
<PAGE> 15
AMORTIZATION SCHEDULE - FIXED MONTHLY PAYMENT
Interest: 8.25%
Loan Amount: $4,800,000.00
Term (Years): 15.00
Payment (monthly): $46,566.74
Payments Start: 10/2/94
<TABLE>
<CAPTION>
Excess
Month Principal Interest Payments Balance Last Payment
<S> <C> <C> <C> <C> <C>
Mar-2003 27102.34 19464.40 2804083.10
Apr-2003 27288.67 19278.07 2776794.44
May-2003 27476.28 19090.46 2749318.16
Jun-2003 27665.17 18901.56 2721652.99
Jul-2003 27855.37 18711.36 2693797.61
Aug-2003 28046.88 18519.86 2665750.73
Sep-2003 28239.70 18327.04 2637511.03
Oct-2003 28433.85 18132.89 2609077.18
Nov-2003 28629.33 17937.41 2580447.85
Dec-2003 28826.16 17740.58 2551621.69
Jan-2004 29024.34 17542.40 2522597.36
Feb-2004 29223.88 17342.86 2493373.48
Mar-2004 29424.79 17141.94 2463948.68
Apr-2004 29627.09 16939.65 2434321.59
May-2004 29830.78 16735.96 2404490.82
Jun-2004 30035.86 16530.87 2374454.95
Jul-2004 30242.36 16324.38 2344212.59
Aug-2004 30450.28 16116.46 2313762.32
Sep-2004 30659.62 15907.12 2283102.70
Oct-2004 30870.41 15696.33 2252232.29
Nov-2004 31082.64 15484.10 2221149.65
Dec-2004 31296.33 15270.40 2189853.32
Jan-2005 31511.50 15055.24 2158341.82
Feb-2005 31728.14 14838.60 2126613.68
Mar-2005 31946.27 14620.47 2094667.42
Apr-2005 32165.90 14400.84 2062501.52
May-2005 32387.04 14179.70 2030114.48
Jun-2005 32609.70 13957.04 1997504.78
Jul-2005 32833.89 13732.85 1964670.89
Aug-2005 33059.62 13507.11 1931611.26
Sep-2005 33286.91 13279.83 1898324.35
Oct-2005 33515.76 13050.98 1864808.59
Nov-2005 33746.18 12820.56 1831062.42
Dec-2005 33978.18 12588.55 1797084.23
Jan-2006 34211.78 12354.95 1762872.45
Feb-2006 34446.99 12119.75 1728425.46
Mar-2006 34683.81 11882.93 1693741.65
Apr-2006 34922.26 11644.47 1658819.39
May-2006 35162.35 11404.38 1623657.03
Jun-2006 35404.10 11162.64 1588252.94
Jul-2006 35647.50 10919.24 1552605.44
Aug-2006 35892.57 10674.16 1516712.86
Sep-2006 36139.34 10427.40 1480573.53
Oct-2006 36387.79 10178.94 1444185.73
Nov-2006 36637.96 9928.78 1407547.77
Dec-2006 36889.85 9676.89 1370657.93
Jan-2007 37143.46 9423.27 1333514.46
Feb-2007 37398.83 9167.91 1296115.64
Mar-2007 37655.94 8910.80 1258459.70
Apr-2007 37914.83 8651.91 1220544.87
May-2007 38175.49 8391.25 1182369.38
Jun-2007 38437.95 8128.79 1143931.43
Jul-2007 38702.21 7864.53 1105229.22
Aug-2007 38968.29 7598.45 1066260.93
Sep-2007 39236.19 7330.54 1027024.74
Oct-2007 39505.94 7060.80 987518.80
</TABLE>
<PAGE> 16
AMORTIZATION SCHEDULE - FIXED MONTHLY PAYMENT
Interest: 8.25%
Loan Amount: $4,800,000.00
Term (Years): 15.00
Payment (monthly): $46,566.74
Payments Start: 10/2/94
<TABLE>
<CAPTION>
Excess
Month Principal Interest Payments Balance Last Payment
<S> <C> <C> <C> <C> <C>
Nov-2007 39777.55 6789.19 947741.25
Dec-2007 40051.02 6515.72 907690.24
Jan-2008 40326.37 6240.37 867363.87
Feb-2008 40603.61 5963.13 826760.26
Mar-2008 40882.76 5683.98 785877.50
Apr-2008 41163.83 5402.91 744713.67
May-2008 41446.83 5119.91 703266.84
Jun-2008 41731.78 4834.96 661535.06
Jul-2008 42018.68 4548.05 619516.38
Aug-2008 42307.56 4259.18 577208.82
Sep-2008 42598.43 3968.31 534610.39
Oct-2008 42891.29 3675.45 491719.10
Nov-2008 43186.17 3380.57 448532.93
Dec-2008 43483.07 3083.66 405049.86
Jan-2009 43782.02 2784.72 361267.84
Feb-2009 44083.02 2483.72 317184.82
Mar-2009 44386.09 2180.65 272798.73
Apr-2009 44691.25 1875.49 228107.48
May-2009 44998.50 1568.24 183108.98
Jun-2009 45307.86 1258.87 137801.12
Jul-2009 45619.35 947.38 92181.76
Aug-2009 45932.99 633.75 46248.78
Sep-2009 46248.78 317.96 0.00 46566.74
</TABLE>
<PAGE> 1
Exhibit 10(e)
SECOND AMENDMENT TO LOAN AGREEMENT
This Second Amendment to Loan Agreement is entered into this 1st day
of February, 1995, between Metatec Corporation and Metatec/Discovery Systems,
Inc. (hereinafter referred to as the "Company") and The Huntington National
Bank, a national banking association (hereinafter referred to as "Bank");
WITNESSETH
WHEREAS, on May 13, 1994, Company executed and delivered to Bank a
certain Loan Agreement (hereinafter referred to as the "Agreement") which sets
forth the terms of certain extensions of credit to the Company; and
WHEREAS, on September 1, 1994, Bank and Company agreed to enter into a
certain First Amendment to Loan Agreement (hereinafter referred to as
"Amendment") to amend said Loan Agreement as further described therein; and
WHEREAS, Company desires and Bank agrees to further amend said
Agreement in accordance with the terms and conditions set forth below.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrower and Bank, for
themselves, their heirs, successors and assigns, hereby agree as follows:
1. Effective as of the date hereof, "SECTION 1.2" of said
Agreement shall be amended to read as follows:
The Bank, subject to the terms and conditions hereof, will make loans
and advances to the Company on an unsecured revolving basis in a
principal amount of up to $4,000,000.00 (the "Revolving Loan").
2. All other terms and conditions of said Agreement and Amendment
not herein specifically amended are hereby ratified and shall remain in full
force and effect.
3. This Second Amendment to Loan Agreement shall be governed by
and construed in accordance with the law of the State of Ohio.
IN WITNESS WHEREOF, Company and Bank have executed this Second
Amendment to Loan Agreement as of the date first written above.
<TABLE>
<CAPTION>
WITNESSES: COMPANY:
<S> <C>
METATEC CORPORATION
/s/Mary Reichle By /s/William H. Largent
- ------------------------------ ----------------------------------
/s/Jo Ellen Barnhart METATEC/DISCOVERY SYSTEMS, INC.
- ------------------------------
By /s/Gregory T. Tillar
----------------------------------
HUNTINGTON NATIONAL BANK
By /s/Daniel Huffman
----------------------------------
Daniel Huffman
Assistant Vice President
</TABLE>
