FIRST AMENDMENT TO
CREDIT AGREEMENT
This First Amendment to the Credit Agreement (the "Amendment")
entered into as of this 7th day of April, 1996, by and between THE FIFTH
THIRD BANK, an Ohio banking corporation (the "Bank") and ACCESS CORPORATION,
an Ohio corporation (the "Borrower").
WHEREAS, Bank and Borrower entered into that certain Credit
Agreement, dated as of April 7, 1994 (the "Agreement");
WHEREAS, in connection with the transactions contemplated by the
Agreement, Borrower executed and delivered to Bank the following additional
loan documents, each dated as of April 7, 1994: (a) a Revolving Note in the
original principal amount of $400,000 (the "Note"); (b) a Security Agreement
between Borrower and Bank; and (c) UCC-1 Financing Statements (the Agreement
and all of the foregoing documents and all other loan documents executed in
connection with the loan evidenced by the Agreement, as such have been
amended and/or restated will be collectively referred to herein as the
"Loan Documents");
WHEREAS, Borrower and Bank desire to amend the Agreement and the Note
to extend the term thereof, subject to the terms and conditions set forth
herein;
NOW THEREFORE, intending to be legally bound, the parties hereto
agree as follows:
1. Amendments.
(a) Section 2, Subsection 2.1(c) of the Agreement is hereby
amended and restated in its entirety as follows:
2.1 (c) On the date of execution of the First Amendment to
the Credit Agreement (the "Amendment"), Borrower shall duly
execute and deliver to Bank an amended and restated Revolving
Note in the form attached as Exhibit 2.1 to the Amendment, in
the principal amount of $400,000, bearing interest as
specified in such Revolving Note (the "Revolving Note") and
will be delivered to Bank in substitution for the Revolving
Note originally executed by Borrower on April 7, 1994.
(b) Section 2, Subsection 2.1 (d) of the Agreement is hereby
amended and restated in its entirety as follows:
(d) The term of the Facility will expire on April 7, 1998
(the "Due Date"), and the Revolving Note will become payable
in full on that date. Borrower may prepay the principal
balance of the Revolving Note in whole or part at any time.
(c) Section 2, Subsection 2.2 (b) of the Agreement is hereby
amended and restated in its entirety as follows:
(b) When proceeds of the Collateral are deposited to the
Collection Account, after a reasonable time for clearance or
payment (currently one (1) business days after receipt
thereof), they will be credited by Bank against the
outstanding principal amount of the Revolving Loans
outstanding under the Facility. All such credits will be
conditional credits subject to collection. Any item not
finally paid will be charged to Borrower whether or not the
item is returned.
(d) Section 4, Subsection 4.10 of the Agreement is hereby amended
and restated in its entirety as follows:
4.10 Depository/Banking Services. So long as this Agreement
is in effect, Bank will be the principal depository in which
substantially all of Borrower's funds are deposited, and the
principal bank of account of Borrower. Borrower will also
maintain a non-interest bearing account with Bank at all
times during the term hereof with a collected balance of at
least $75,000 deposited therein. Borrower will also grant
Bank the first opportunity to provide any corporate banking
services required by Borrower and its Affiliates, including,
without limitation, payroll, cash management and employee
benefit plan services.
2. Representations, Warranties and Covenants of Borrower. To
induce Bank to enter into this Amendment, Borrower represents and warrants as
follows:
(a) The representations and warranties of Borrower contained in
Section of the Agreement are deemed to have been made again
on and as of the date of execution of this Amendment, and are
true and correct as of the date of execution hereof.
(b) No Event of Default (as such term is defined in Section 6 of
the Agreement) or event or condition which, with the lapse of
time or giving of notice or both, would constitute an Event
of Default exists on the date hereof.
(c) The person executing this Amendment and the Amended and
Restated Revolving Note, is a duly elected and acting officer
of Borrower and is duly authorized by the Board of Directors
of Borrower to execute and deliver this Amendment and such
note on behalf of Borrower.
3. Conditions. Bank's obligations under this Amendment are
subject to the following conditions:
(a) Borrower shall have executed and delivered to Bank the Amended
and Restated Revolving Note in the form attached hereto as
Exhibit 2.1.
(b) The Bank shall have been furnished copies, certified by the
Secretary or assistant Secretary of Borrower, of resolutions
of the Board of Directors of Borrower authorizing the
execution of this Amendment, the Exhibits hereto and all
other documents executed in connection herewith which
resolutions will be in the form attached hereto as Exhibit A.
(c) The representations and warranties of Borrower in Section 2
hereof shall be true and correct on the date of execution of
this Amendment.
(d) Borrower shall pay all expenses and attorneys' fees incurred
by Bank in connection with the preparation, execution and
delivery of this Amendment and related documents.
4. General.
(a) Except as expressly modified hereby, the Agreement remains
unaltered and in full force and effect. Borrower acknow-
ledges that Bank has made no oral representations to Borrower
with respect to the Agreement and this Amendment thereto and
that all prior understandings between the parties are merged
into the Agreement as amended by this writing. All Loans
outstanding on the date of execution of this Amendment shall
be considered for all purposes to be Loans outstanding under
the Agreement as amended by this Amendment.
(b) Capitalized terms used and not otherwise defined herein will
have the meanings set forth in the Agreement.
(c) Nothing contained herein will be construed as waiving any
default or Event of Default under the Agreement or will
affect or impair any right, power or remedy of the Bank under
or with respect to the Loans, the Agreement, as amended, the
Note, as amended and restated, or any agreement or instrument
guaranteeing, securing or otherwise relating to the Loans.
(d) This Amendment shall be considered an integral part of the
Agreement, and all references to the Agreement in the Agree-
ment itself or any document referring thereto shall, on and
after the date of execution of this Amendment, be deemed to
be references to the Agreement as amended by this Amendment.
(e) This Amendment will be binding upon and inure to the benefit
of Borrower and Bank and their respective successors and
assigns.
(f) All representations, warranties and covenants made by
Borrower herein will survive the execution and delivery of
this Amendment.
(g) This Amendment will, in all respects, be governed and
construed in accordance with the laws of the State of Ohio.
(h) This Amendment may be executed in one or more counterparts,
each of which will be deemed an original and all of which
together will constitute one and the same instrument.
(i) Borrower authorizes any attorney of record to appear for it
in any court of record in the State of Ohio, after an
Obligation becomes due and payable whether by its terms or
upon default, waives the issuance and service of process,
releases all errors and rights of appeal, and confesses a
judgment against it in favor of the holder of such
Obligation, for the principal amount of such Obligation
plus interest thereon, together with court costs and
attorneys'fees. Stay of Execution and all exemptions are
hereby waived. If an Obligation is referred to an attorney
for collection, and the payment is obtained without the entry
of a judgment, the obligors will pay to the holder of such
Obligation its attorneys' fees.
IN WITNESS WHEREOF, Borrower and Bank have executed this Agreement by
their duly authorized officers as of the date first above written.
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.
ACCESS CORPORATION
By: NEWTON D. BAKER
------------------------
Its: Executive Vice President
THE FIFTH THIRD BANK
By: ANDREW G. AGGER
-----------------------------
Its: Assistant Cashier
EXHIBIT 2.1
AMENDED AND RESTATED
REVOLVING NOTE
$400,000 Cincinnati, Ohio
April 7, 1994
First Amendment and Restatement April 7, 1996
On April 7, 1998, ACCESS CORPORATION, an Ohio corporation, for value
received, hereby promises to pay to the order of THE FIFTH THIRD BANK, an
Ohio banking corporation (the "Bank"), at its offices, located at 38
Fountain Square Plaza, Cincinnati, Ohio 45263, in lawful money of the United
States of America and in immediately available funds, the principal sum of
Four Hundred Thousand Dollars ($400,000) or such lesser unpaid principal
amount as may be advanced by Bank pursuant to the terms of the Credit
Agreement, dated April 7, 1994 and the First Amendment thereto, dated of even
date herewith by and between Borrower and Bank, as the same may be amended
from time to time (the "Agreement").
The principal balance outstanding hereunder, will bear interest from
the date of the first advance until paid at an annual floating rate of
interest equal to one percent (1%) in excess of the Prime Rate (as defined
below) of Bank in effect from time to time. The interest rate charged
hereunder will change automatically upon each change in the Prime Rate.
Accrued and unpaid interest will be due and payable monthly commencing on the
15th day of May, 1996 and continuing on the 15th day of each calendar month
thereafter during the term hereof. Interest will be calculated based on a
360-day year and charged for the actual number of days elapsed, and will be
payable on the first day of each calendar month. After maturity, whether by
acceleration or otherwise, this Note will bear interest (computed and
adjusted in the same manner, and with the same effect, as interest hereon
prior to maturity) payable on demand, at a rate per annum equal to the
Default Rate, until paid, and whether before or after the entry of
judgment hereon.
On April 7, 1998, all outstanding principal and all accrued and unpaid
interest will be due and payable.
The Prime Rate means the rate of interest per annum announced to be its
Prime Rate from time to time by Bank at its principal office in Cincinnati,
Ohio whether or not Bank will at times lend to borrowers at lower rates of
interest, or, if there is no such Prime Rate, then its base rate or such
other rate as may be substituted by Bank for the Prime Rate.
The principal amount of each loan made by Bank under this Note and the
amount of each prepayment made by Borrower under this Note will be recorded
by Bank in the regularly maintained data processing records of Bank. The
aggregate unpaid principal amount of all loans set forth in such records will
be presumptive evidence of the principal amount owing and unpaid on this
Note. However, failure by Bank to make any such entry will not limit or
otherwise affect Borrower's obligations under this Note or the Agreement.
All payments received by Bank under this Note will be applied first to
payment of amounts advanced by Bank on behalf of Borrower or which may be due
for insurance, taxes and attorneys' fees or other charges to be paid by
Borrower pursuant to the Agreement and the Loan Documents (as defined in the
Agreement), then to accrued interest on this Note, then to principal which
will be repaid in the inverse order of maturity.
This Note is the Revolving Note referred to in the Agreement, and is
entitled to the benefits, and is subject to the terms, of the Agreement.
Capitalized terms used but not otherwise defined herein will have the
meanings attributed thereto in the Agreement. The principal of this Note
is prepayable in the amounts and under the circumstances, and its maturity is
subject to acceleration upon the terms, set forth in the Agreement. Except
as otherwise expressly provided in the Agreement, if any payment on this Note
becomes due and payable on a day other than one on which Bank is open for
business (a "Business Day"), the maturity thereof will be extended to the
next Business Day, and interest will be payable at the rate specified herein
during such extension period.
After the occurrence of an Event of Default and the expiration of any
notice and cure periods, all amounts of principal outstanding as of the date
of the occurrence of such Event of Default will bear interest at the Default
Rate, in Bank's sole discretion, without notice to Borrower. This provision
does not constitute a waiver of any Events of Default or an agreement by Bank
to permit any late payments whatsoever.
If any payment of principal is not paid when due (whether by accel-
eration or otherwise after the expiration of applicable notice grace and cure
periods), Borrower agrees to pay to Bank a late payment fee equal to five
percent (5%) of the payment amount then due.
Borrower may prepay any portion of this Note in part at any time with-
out premium or penalty. Any prepayments under this Note in advance of any
amortized payments will be applied to reduce the outstanding principal amount
of this Note in the inverse chronological order of maturity.
In no event will the interest rate on this Note exceed the highest rate
permissible under any law which a court of competent jurisdiction will, in a
final determination, deem applicable hereto. In the event that a court
determines that Bank has received interest and other charges under this Note
in excess of the highest permissible rate applicable hereto, such excess will
be deemed received on account of, and will automatically be applied to reduce
the amounts due to Bank from Borrower under this Note, other than interest, and
the provisions hereof will be deemed amended to provide for the highest
permissible rate. If there are no such amounts outstanding, Bank will refund
to Borrower such excess.
Borrower and all endorsers, sureties, guarantors and other persons
liable on this Note hereby waive presentment for payment, demand, notice of
dishonor, protest, notice of protest and all other demands and notices in
connection with the delivery, performance and enforcement of this Note, and
consent to one or more renewals or extensions of this Note (except as
provided for in the Agreement).
This Note is being executed in substitution for the Note, originally
dated April 7,1994,in the principal amount of $400,000, and is not delivered
in repayment thereof.
This Note may not be changed orally, but only by an instrument in
writing.
This Note is being delivered in, is intended to be performed in, will
be construed and enforceable in accordance with, and be governed by the
internal laws of, the State of Ohio without regard to principles of conflict
of laws. Borrower agrees that the State and Federal courts in Hamilton
County, Ohio or any other court in which Bank initiates proceedings will have
exclusive jurisdiction over all matters arising out of this Note, and that
service of process in any such proceeding will be effective if mailed to
Borrower at its address described in the Notices section of the Agreement.
BORROWER HEREBY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT
OF THIS NOTE.
Borrower authorizes any attorney of record to appear for it in any
court of record in the State of Ohio, after this Note becomes due and
payable, whether by its terms or upon default, waives the issuance and
service of process, and releases all errors and rights of appeal, and
confesses a judgment against it in favor of the holder of such obligation,
for the principal amount of such obligation plus interest thereon, together
with court costs and attorneys' fees. Stay of execution and all exemptions
are hereby waived. If an obligation is referred to an attorney for
collection, and the payment is obtained without the entry of a judgment,
the obligors will pay to the holder of such obligation its attorneys' fees.
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.
ACCESS CORPORATION
By: __________________
Its: _________________
EXHIBIT A
ACCESS CORPORATION
CERTIFICATE OF BORROWER
re: Amendments to Loans from
The Fifth Third Bank
The undersigned does hereby certify that he is the duly elected,
qualified and acting Secretary of Access Corporation, an Ohio corporation
(the "Borrower"), and the undersigned does hereby further certify as follows:
1. Attached hereto, marked Attachment A, is a true and correct copy
of the current Articles of Incorporation of Borrower together
with all amendments thereto. (Previously furnished)
2. Attached hereto, marked Attachment B, is a true and correct copy
of the current Code of Regulations\Bylaws of Borrower together
with all amendments thereto. (Previously furnished)
3. Attached hereto, marked Attachment C, is a true and correct copy
of a certain resolution of the board of directors of Borrower
similar in all material respects to the one expected to be
adopted at the next meeting.
4. The following persons are the duly elected officers of Borrower,
holding the office set forth opposite their respective names.
Each officer who has executed or will execute any documents in
connection with this loan transaction has set forth his true and
customary signature opposite his name.
Name Title Signature
Kent P. Friel Chairman See Signature Cards
Scott D. Watkins President & CEO See Signature Cards
Newton D. Baker Treasurer & Asst. Sec.See Signature Cards
Barbara A. Sommer Asst. Treasurer See Signature Cards
James M. Anderson Secretary See Signature Cards
Dennis J. Sullivan, Jr.Director See Signature Cards
5. Each officer whose personal signature appears above has been duly
authorized by resolution of the board of directors of Borrower to
execute any and all instruments or documents which he may deem
necessary or appropriate in connection with this loan
transaction.
IN WITNESS WHEREOF, the undersigned hereby certifies the above to
be true and has executed this certificate this 12th day of April, 1996.
JAMES M. ANDERSON , Secretary
-------------------------------
James M. Anderson
The undersigned does hereby certify that he is the Executive Vice
President of Borrower, and does further certify that James M. Anderson is the
Secretary of Borrower, and that his signature set forth above is his true and
customary signature.
NEWTON D. BAKER, Executive Vice President
---------------------------
Newton D. Baker
ATTACHMENT C
to ACCESS CORPORATION
DIRECTORS' ACTION
BY WRITTEN CONSENT
The undersigned, being all of the Directors of Access Corporation, an
Ohio corporation (the "Corporation") who would be entitled to notice of a
meeting of the Board of Directors, do hereby authorize, approve and agree to
the adoption of the following action by their written consent without a
meeting, pursuant to Section 1701.54 of the Ohio Revised Code:
WHEREAS, the Board of Directors of the Corporation deem it in the best
interest of the Corporation to amend the terms of certain loans in the
original principal amount of $400,000 from The Fifth Third Bank ("Bank") to
finance various operations of the Corporation;
WHEREAS, negotiations have been carried on by and between the Corpor-
ation and Bank relating to the structuring of the transaction and the form of
documents to be used in connection with the financing; and
WHEREAS, the following documents (collectively called the "Loan
Documents") have been substantially finalized:
1. The First Amendment to the Credit Agreement between Corporation and
Bank; and
2. The Amended and Restated Revolving Note between Corporation as
Maker, and Bank in the principal amount of $400,000.
NOW THEREFORE, BE IT RESOLVED, that the Loan Documents are hereby
approved with such additional terms and provisions as the officer executing
the same shall approve and the execution and delivery of such documents by
such officer shall be conclusive evidence that the same has been authorized
by this resolution; and
RESOLVED FURTHER, that any one of the following officers of the
Corporation are hereby authorized to execute and deliver the Loan Documents
on behalf of the Corporation, and any and all other documents that he deems
necessary and advisable in order to complete the transaction authorized by
these resolutions and to perform such other acts, as in his judgment may be
necessary or appropriate in order to effectuate the financing and the intent
and purposes of the foregoing resolutions, the signature of only one such
officer being necessary:
Chairman of the Board
President
Vice President
Secretary
Treasurer
RESOLVED FURTHER, that the Chairman of the Board, President, Vice
President, Secretary and Treasurer of the Corporation are hereby authorized
to execute, the signature of only one such officer being necessary, and any
and all closing documents including but not limited to closing certificates
and financing statements necessary to obtain the financing with such add-
itional terms and provisions as the officer executing the same shall approve
and the execution and delivery of such documents by such officer shall be
conclusive evidence that the same has been authorized by this resolution.
Dated:
access.no1