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EXHIBIT 10.26
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LOAN AGREEMENT
between
THE DIRECTOR OF DEVELOPMENT
OF THE STATE OF OHIO
and
BAILEY TRANSPORTATION PRODUCTS, INC.
Dated
as of
July 29, 1992
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LOAN AGREEMENT
THIS LOAN AGREEMENT made and entered into as of July 29, 1992 between the
Director of Development of the State of Ohio (the "Director") , and Bailey
Transportation Products, Inc., a Delaware corporation (the "Company"), under
the circumstances summarized in the following recitals (the capitalized terms
used in the recitals being used therein as defined in Article I hereof):
A. Pursuant to the Act, the Director is authorized, among other things,
to make loans to assist in the financing of an Eligible Project.
B. The Company has requested that the Director provide the financial
assistance for the Project hereinafter described.
C. The Director has determined that the Project constitutes an
Eligible Project and that the financial assistance to be provided pursuant to
the Lease (as defined below) and this Agreement is appropriate under the Act
and will be in furtherance and in implementation of the public policy set forth
in the Act.
D. The financial assistance to be provided pursuant to the Lease and
the issuance of the Bonds described therein and pursuant to this Agreement has
been reviewed and approved by the Development Financing Advisory Board and the
Controlling Board, pursuant to the Act.
E. In consideration of the financial assistance and the issuance of
the Bonds, the Director is taking title to the Project Facilities and Project
Equipment and leasing same back to the Company pursuant to the Lease.
NOW, THEREFORE, in consideration of the premises and the representations
and agreements hereinafter contained, the Director and the Company agree as
follows:
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ARTICLE I
DEFINITIONS
SECTION 1.1. Use of Defined Terms. In addition to the words and terms
elsewhere defined in this Agreement or by reference to the Security Document or
other instruments, the words and terms set forth in Section 1.2 hereof shall
have the meanings therein set forth unless the context or use expressly
indicates different meaning or intent. Such definitions shall be equally
applicable to both the singular and plural forms of any of the words and terms
therein defined.
SECTION 1.2. Definitions. As used herein:
"ACT" means Chapter 166, Ohio Revised Code, as from time to time enacted
and amended.
"ALLOWABLE COSTS" means "allowable costs" of the Project within the
meaning of the Act.
"APPLICATION" means the Application of the Company submitted to the
Director requesting assistance under the Act.
"BONDS" means the State of Ohio State Economic Development Revenue Bonds
(Ohio Enterprise Bond Fund), Series 1992-3 (Bailey Transportation Projects,
Inc. Project) (Taxable Bonds) authorized by the General Bond Order and the
Series Bond Order.
"CDBG" means the Community Development Block Grant.
"CDBG LOAN" means the loan in the original principal amount of Three
Hundred Forty-Five Thousand Dollars ($345,000.00) from the CDBG Lender.
"CLOSING DATE" means July 29, 1992, the date of execution and delivery of
the Loan Documents.
"COMMITMENT" means the Commitment Letter between the Director and the
Company dated June 10, 1992.
"COMPLETION DATE" means the date of completion of the Project, as
certified by the Company pursuant to Section 3.5 hereof.
"CONTROLLING BOARD" means the controlling board of the State.
"COST CERTIFICATION" means a certification of the Company, as of a
specified date, setting forth in reasonable detail the costs incurred and, if
appropriate, to be incurred, by the Company in completing the provision of the
Project, including a detail by category of all Allowable Costs.
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"DEVELOPMENT FINANCING ADVISORY BOARD" means the Development Financing
Advisory Board of the State.
"DIRECTOR" means the officer of the State, appointed pursuant to Section
121.03 of the Ohio Revised Code, who administers and is the executive head of
the Department of Development of the State, the officer who by law performs the
functions of that office, and any person acting on behalf of the Director of
Development of the State pursuant to any delegation permitted by law.
"DISBURSEMENT DATE" means July 29, 1992, or such subsequent date as may be
established by the Director in writing in accordance with Section 3.7 hereof
for the disbursement of the Loan.
"ELIGIBLE PROJECT" means an "eligible project" within the meaning of the
Act, and with respect to the Loan means the Project Equipment, Project
Facilities and the Project Site.
"ENVIRONMENTAL LAW" means any federal, state or local law, regulation,
ordinance, order or directive pertaining to the protection of the environment
and the health and safety of the public.
"ERISA" means the Employee Retirement Income Security Act of 1974, as from
time to time amended and supplemented.
"EVENT OF DEFAULT" means any of the events described as an event of
default in Section 5.1 hereof.
"FINAL COST CERTIFICATION" means the Cost Certifications dated as of the
Completion Date.
"FORCE MAJEURE" means, without limitation:
(i) acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or restraints of any
kind of the government of the United States or of the State or
any of their departments, agencies, political subdivisions or
officials, or any civil or military authority; insurrections;
civil disturbances; riots; epidemics; landslides; nuclear
accidents; lightning; earthquakes; fires; hurricanes; tornadoes;
storms; droughts; floods; arrests; restraint of government and
people; explosions, breakages, malfunction or accident to
facilities, machinery, transmission pipes or canals; partial or
entire failure of utilities; shortages of labor, materials,
supplies or transportation; or
(ii) any cause, circumstances or event not reasonably within
the control of the Company.
"GOVERNING INSTRUMENTS" means the certificate of incorporation and by-laws
of the Company.
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"GOVERNMENTAL AUTHORITY" means, collectively, the State, any political
subdivision thereof, any municipality, and any agency, department, commission,
board or bureau of any of the foregoing having jurisdiction over the Project.
"HAZARDOUS SUBSTANCE" means a hazardous substance as defined under the
Comprehensive Emergency Response Compensation and Liability Act of 1980, 42
U.S.C. Section 6901, as from time to time amended.
"HAZARDOUS WASTE" means a hazardous waste as defined under the Resource
Conservation and Recovery Act on 1976, 42 U.S. C. Section 6901, as from time to
time amended.
"INITIAL COST CERTIFICATION" means the Cost Certification dated as of the
Closing Date.
"LEASE" means the lease between the Director and the Company dated July
29, 1992, pursuant to which the Director has provided financial assistance
through issuance of the Bonds in the amount of Three Million One Hundred
Seventy Thousand Dollars ($3,170,000.00).
"LESSOR" means Director.
"LOAN" means the loan by the Director to the Company in the total sum of
the Loan Amount, to be disbursed pursuant to Section 3.9 hereof.
"LOAN AGREEMENT" means this Loan Agreement, as from time to time amended
or supplemented.
"LOAN AMOUNT" means the lesser of (i) One Million Dollars ($1,000,000.00)
or (ii) twenty-one percent (21%) of the allowable costs of the Project, as
determined by the Director in the Director's sole discretion pursuant to this
Loan Agreement.
"LOAN APPROVAL DOCUMENTS" means, with respect to the Loan, the
Recommendation of the Director to the Development Financing Advisory Board
dated April 30, 1992, the Resolution of the Development Financing Advisory
Board dated April 30, 1992, the Approval of the Controlling Board dated May
18th, 1992, and the Commitment.
"LOAN DOCUMENTS" means all documents and instruments delivered to or
required by the Director to evidence or secure the Loan, including but not
limited to this Loan Agreement, the Note and the Security Document, as required
by the Commitment and this Loan Agreement.
"NOTE" means the promissory note, in the form attached hereto as Exhibit
C, evidencing the obligation of the Company to repay the Loan.
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"NOTICE ADDRESS" means:
(a) As to the Director: Department of Development
77 South High Street
PO Box 1001
Columbus, Ohio 43266-0101
Attention: Director
Facsimile: (614) 644-1789
and
Anthony M. Roseboro
Attorney at Law
319 Sherborne Drive
Columbus, Ohio 43219
Facsimile: (614) 252-3807
(b) As to the Company: Bailey Transportation Products, Inc.
333 Gore Road
Conneaut, Ohio 44030
Attention: Anthony A. Martino
Facsimile: (216) 599-7870
and
Sheehan, Phinney, Bass & Green
1000 Elm Street
Manchester, New Hampshire 03105-3701
Attention: Alan L. Reische, Esq.
Facsimile: (603) 627-8121
or such additional or different address, notice of which is given under Section
6.2 hereof.
"PETROLEUM" means petroleum as defined under the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901, as from time to time amended.
"PLANS AND SPECIFICATIONS" means the plans and specifications or other
appropriate documents describing the Eligible Project prepared by or at the
direction of the Company.
"PROJECT" means the Project Equipment, the Project Facilities and the
Project Site which together constitute an Eligible Project.
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"PROJECT EQUIPMENT" means the equipment machinery and other personal property
described in Exhibit C to the Lease.
"PROJECT FACILITIES" means the buildings, structures, additions and
improvements described in Exhibit B to the Lease.
"PROJECT PURPOSES" means the manufacture of molded plastic components for
automobiles and other industrial uses.
"PROJECT SITE" means the real estate described in Exhibit A to the Lease,
including any buildings, structures, additions, improvements, facilities,
fixtures and installations now or hereafter located thereon.
"PROVISION" means, as applicable, the acquiring, constructing,
reconstructing, rehabilitating, renovating, enlarging, improving, or furnishing
of the Project.
"SECURITY DOCUMENT" means the Lease.
"STATE" means the State of Ohio.
"TOXIC CHEMICALS" means toxic chemicals as defined under Title III of the
Superfund Amendments and Reauthorization Act of 1986 (also cited as the
Emergency Planning and Community Right-to-Know Act) 42 U.S.C. Section 11001, as
from time to time amended.
SECTION 1.3. Certain Words and References. Any reference herein to the
Director shall include those succeeding to the Director's functions, duties or
responsibilities pursuant to or by operation of law or lawfully performing such
functions. Any reference to a section or provision of the Constitution of the
State or to the Act or to a section, provision or chapter of the Ohio Revised
Code shall include such section, provision or chapter as from time to time
amended.
The terms "hereof," "hereby," "herein," "hereto," "hereunder" and similar
terms refer to this Loan Agreement; and the term "heretofore" means before, and
the term "hereafter" means after the Closing Date. Words of the masculine
gender include the feminine and the neuter, and when the sense so indicates,
words of the neuter gender may refer to any gender.
ARTICLE II
DETERMINATIONS AND REPRESENTATIONS
SECTION 2.1. Determinations of the Director. Pursuant to the Act and on
the basis of the representations and other information provided by the Company,
the Director has heretofore made certain determinations, as set forth in the
Loan Approval Documents, which are hereby confirmed, and the
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Director hereby determines that the financial assistance to be provided by the
State pursuant to this Loan Agreement will conform to the requirements of the
Act, including Section 166.07 thereof, and will further and implement the
purposes of the Act by creating new jobs or preserving existing jobs and
employment opportunities and improving the economic welfare of the people of
the State.
SECTION 2.2. Representations of the Company. The Company hereby
represents and warrants that:
(a) The Company is a corporation for profit duly organized
and validly existing under the laws of the State of Delaware and
in good standing under the laws of the State of Delaware and
authorized to do business in the State of Ohio.
(b) The Company has full power and authority to execute,
deliver and perform the Loan Documents and to enter into and carry
out the transactions contemplated thereby. Such
execution, delivery and performance do not, and will not, violate any
provision of law applicable to the Company and do not, and will not,
conflict with or result in a default under any agreement or instrument to
which the Company is a party or by which the Company or any of the
Company's property or assets is or may be bound immediately following the
consummation of the transactions contemplated hereby. The Loan Documents
have, by proper action, been duly authorized, executed and delivered and
all necessary actions have been taken to constitute the Loan Documents
legal, valid and binding obligations of the Company.
(c) The provision of financial assistance pursuant to the Loan Approval
Documents and this Loan Agreement induced the Company to provide the
Project, thereby creating new jobs or preserving existing jobs and
employment opportunities and improving the economic welfare of the people
of the State.
(d) The Provision of the Project will be completed and the Project will be
operated and maintained at the Project Site in such manner as to conform
with all applicable Environmental Laws and zoning, planning, building, and
other governmental regulations imposed by any Governmental Authority and
as to be consistent with the purposes of the Act.
(e) The Company presently intends that the Project will be used and operated
in a manner consistent with the Project Purposes at the Project Site until
the date on which the Loan has been fully repaid, and the Company knows of
no reason why the Project will not be so operated.
(f) Except as disclosed in Exhibit F to the Lease, there are no actions,
suits, or proceedings pending or threatened against or affecting the
Company, the Project, the Project Equipment, Project Facilities or the
Project Site which, if adversely determined, would individually or in the
aggregate materially impair the ability of the Company to perform any of
the Company's obligations under the Loan Documents or adversely affect the
financial condition of the Company.
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(g) The Company is not in default under any of the Loan Documents or in the
payment of any indebtedness for borrowed money or under any agreement or
instrument evidencing any such indebtedness, and no event has occurred
which by notice, the passage of time or otherwise would constitute any such
event of default.
(h) The Project Site is zoned by the County of Ashtabula, Ohio, under a
zoning ordinance which permits the Provision of the Project thereon in
accordance with the Plans and Specifications and the operation of the
Company's business; and all utilities, including water, storm and sanitary
sewer, gas, electric and telephone, and rights of access to public ways
shall be available or will be provided to the Project Site in sufficient
locations and capacities to meet the requirements of operating the Project
and of any applicable Governmental Authority.
(i) The Company has made no contract or arrangement of any kind, other than
the Loan Documents which has given rise to or the performance of which by
the other party thereto would give rise to a lien or claim of lien
immediately following the consummation of the transactions contemplated
hereby on the Project or other collateral covered by the Loan Documents
and no materials or labor have heretofore been supplied to or performed
in connection with the Project.
(j) No representation or warranty of the Company contained in any of the
Loan Approval Documents or Loan Documents and no statement contained in
any certificate, schedule, list, financial statement or other instrument
furnished to the Director or the Lender by or on behalf of the Company
(including, without limitation, the Application) contains any untrue
statement of a material fact, or omits to state a material fact necessary
to make the statements contained herein or therein not misleading. To
the extent that any of the foregoing consist of projections the Company
acknowledges that such projections were prepared in good faith and the
Company believes that the projections and the assumptions on which they
are based were reasonable when made and continue to be reasonable as of
the date hereof but the Company does not warrant that the results set
forth in any projection can be achieved or that the assumptions on which
the projects were based will in fact prove to be accurate.
(k) All proceeds of the Loan shall be used for the payment of Allowable Costs
relating to Provision of the Project. No part of any such proceeds shall
be knowingly paid to or retained by the Company or any partner, officer,
shareholder, director or employee of the Company as a fee, kick-back or
consideration of any type except for purchase of equipment from Bailey
Corporation. The Company has no identity of interest with the general
contractor or any architect, subcontractor, laborer or materialman
performing work or service or supplying materials in connection with the
provision of the Project.
(l) The Project Site has never, and does not currently contain, nor is it
contaminated by, any hazardous or toxic waste materials in violation of
any applicable environmental laws or regulations, including, but not
limited to, Section 103 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 USC 9601 ET SEQ. and Chapter 3734 of
the Ohio Revised Code; and no "clean-up" of the Project Site has occurred
pursuant to any applicable federal or state environmental laws or
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regulations which would give rise to (i) liability on the part of any
person, entity or association to reimburse any governmental authority for
the costs of such "clean-up," or (ii) a lien or encumbrance on the Project
Site.
(m) The financial statements of the Company heretofore delivered to the
Director are true and correct, in all respects, have been prepared in
accordance with generally accepted accounting principles. No materially
adverse change has occurred in the financial condition of the Company
reflected therein since the respective dates thereof.
(n) The Company will convey, or cause to be conveyed, at the Closing, to the
Director good and marketable title to a fee simple interest in the Project
Site and Project Facilities and to such portion, if any, of the Project
Equipment heretofore owned by the Company, subject in all cases to no
lien, charge, easement, condition, restriction or encumbrance except as
created by the Lease and except for Permitted Encumbrances.
ARTICLE III
LOAN; PROVISION OF PROJECT; CONDITIONS TO DISBURSEMENT
SECTION 3.1 Loan and Repayment. On the terms and conditions of this
Agreement and the Commitment, the Director shall lend to the Company the Loan
Amount to assist in the financing of the Project. The Loan Amount and the
proceeds of the issuance of the Bonds are consideration for the Director
acquiring title to the Project Equipment and Project Facilities. The Loan
shall be evidenced by this Agreement and the Note and secured by the Security
Document and other Loan Documents, as applicable. Those instruments shall be
executed and delivered by the Company to the Director on the Closing Date,
concurrently with the execution and delivery of this Agreement and the delivery
of all other documents and the satisfaction of all other closing conditions
required by this Agreement and the Commitment. The Loan shall be disbursed on
the Disbursement Date pursuant to Section 3.8 hereof upon the satisfaction of
the conditions set forth in Section 3.6 hereof. The Loan shall be disbursed
only from and only to the extent that on the Disbursement Date funds not
heretofore committed are available to make the loan from moneys in, the
"Facilities Establishment Fund" created by the Act.
The terms of repayment of the Loan shall be as set forth in the Note and
the Company shall make all payments required to be made under the Note as and
when due.
SECTION 3.2. Provision of Project. The Company (a) has commenced the
Provision of the Project; (b) shall pay all expenses incurred in such Provision
from funds made available therefor in accordance with this Agreement or
otherwise; and (c) shall demand, sue for, levy and recover all sums of money
and debts which may be due and payable under the terms of any contract, order,
receipt, guaranty, warranty, writing or instruction in connection with the
Provision of the Project and will enforce the terms of any contract, agreement,
obligations, bond or other performance security with respect thereto. The
Company confirms its agreement in the Commitment that all wages paid to
laborers and
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mechanics employed on the Project shall be paid at not less than the prevailing
rates of wages for laborers and mechanics for the class of work called for by
the Project, which wages shall be determined in accordance with the
requirements of Chapter 4115, Ohio Revised Code, for determination of
prevailing wage rates; provided that if the Company undertakes, as part of the
Project, work to be performed by its regular bargaining unit employees who are
covered under a collective bargaining agreement which was in existence prior to
the date of the Commitment, the rate of pay provided under the applicable
collective bargaining agreement may be paid to such employees or if the
Department of Industrial Relations of the State determines that the Davis-Bacon
Act applies to the Project, then this Section shall not apply, but the Company
shall comply with any applicable requirements of the Davis-Bacon Act and of the
Department of Industrial Relations of the State.
SECTION 3.3. Plans and Specifications; Inspections. At his option, the
Director may designate an employee or officer of the State or may retain, at
the Company's expense, an architect, engineer, appraiser or other consultant
for the purpose of approving the Plans and Specifications, verifying costs and
performing inspections as Provision of the Project progresses. Such
inspections or approvals of Plans and Specifications or the Project Facilities
shall impose no responsibility or liability of any nature upon the Director,
the State, their agents, representatives or designees nor, without limitation,
carry any warranty or representation as to the adequacy or safety of the
structures or any of their component parts or any other physical condition or
feature pertaining to the Project Facilities. The Company shall, at the
request of the Director, make periodic reports (including, if required,
submission of updated Cost Certifications) to the Director concerning the
status of completion and the expenditure of costs in respect thereof.
The Company may revise the Plans and Specifications from time to time;
provided that no revision shall be made (a) which would change the Project
Purposes to purposes other than those permitted by the Act; (b) without
obtaining, to the extent required by law, the approval of any applicable
Governmental Authority; and (c) without the prior written approval of the
Director if such revision would change the amounts set forth in the most
recently furnished Cost Certification. In any event, all revisions to the
Plans and Specifications shall be promptly filed with the Director.
SECTION 3.4. Company Required to Pay Costs in Event Proceeds
Insufficient. In the event that the proceeds of the Loan, the Bonds issued as
described in the Lease and the CDBG Loan are not sufficient to pay all costs of
the Project, the Company will, nonetheless and irrespective of the cause of
such deficiency, complete the Project in accordance with the Plans and
Specifications and pay all costs of such completion in full from its own funds.
SECTION 3.5. Completion Date. The Completion Date shall occur not
later than July 31, 1993, and shall be evidenced to the Director by a
certificate of the Company stating (a) the Completion Date, (b) that all
licenses, permits and approvals, including a certificate of occupancy, required
by any Governmental Authority have been procured and/or obtained, (c) that the
Eligible Project is completed, that all costs of providing the Project have
been paid and the date as of which operation of the Project shall commence,
which certificate shall be accompanied by the Final Cost Certification; and (d)
if the Provision of the Project entailed construction by completed forms
AIA-G702 and AIA-G703.
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SECTION 3.6. Conditions to Disbursement. The disbursement of the Loan
shall be made on or before the Disbursement Date, provided the Director shall
have received the following on or before the Disbursement Date:
(a) this Loan Agreement, duly executed;
(b) the duly executed Note;
(c) the duly executed Lease;
(d) the items required by Section 3.5 hereof (when
available);
(e) a Certificate of Compliance from the Department of
Industrial Relations of the State, certifying as to full
compliance with Chapter 4115, Ohio Revised Code or evidence
satisfactory to the Director of Compliance with the Davis Bacon
Act on any applicable requirements of the Department of
Industrial Relations of the State, as applicable;
(f) a paid ALTA Loan Policy--1970 (Rev. 10/17/70) of title
insurance issued by a title Company acceptable to the Director,
in the amount of $2,000,000.00 insuring the Director's interest
created by the Mortgage at the level of priority therein stated
to be a valid lien on the Project Site (including all
appurtenances thereto) free and clear of all defects and
encumbrances, except as created by the Loan Documents, with such
endorsements as the Director may require, which policy shall
contain:
(i) affirmative insurance coverage against mechanic's liens;
(ii) no survey exception not theretofore approved
by the Director and his legal counsel;
(iii) affirmative insurance coverage regarding
access, compliance with respect to restrictive covenants and
any other matters to which the Director may have objection
or require affirmative insurance coverage; and
(iv) the results of a UCC search and all liens
search in the county wherein the Project is located and the
Company has its principal place of business;
(g) a current (dated not more than sixty (60) days prior to
the Disbursement Date) survey of the Project Site, prepared by a
licensed surveyor acceptable to the Director, certified to the
Director and the title Company, pursuant to certificate of survey
acceptable to the Director, showing:
(i) the location of the perimeter of the Project Site by
courses and distances with all reference points shown or
referred to in the aforesaid title report;
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(ii) all easements (including those easements whose
existence is disclosed by physical inspection of the Project
site), rights-of-way and the location of all utility lines
servicing the Project Site;
(iii) the established building lines;
(iv) the full legal description of the Project Site
(conforming to the legal description subject of the aforesaid
title policy) and a certification as to the acreage and square
footage thereof;
(v) the highway and street right-of-way lines abutting the
Project Site and the width thereof;
(vi) encroachments upon the Project Site and the extent
thereof in feet and inches.
(vii) the Project Facilities and the relation thereof by
distances to the perimeter of the Project Site, the established
building lines and the street lines; and
(viii) if the Project Site is described as being part of a filed map,
a legend relating the survey to said map;
(h) a surveyor's Certificate for the Project;
(i) certification by the Company that (i) the Company's
representations and warranties made in the Loan Approval Documents or
Loan Documents remain true, accurate and complete as of the
Disbursement Date in all material respects, (ii) no default or event
which, by notice, the passage of time or otherwise, would constitute
a default, exists under the Loan Documents, (iii) that the value of
the Project is, or upon completion will be, equal to or greater than
the total amount of money expended in the Provision of the Project,
and (iv) the amount of the Loan will not exceed twenty-one percent
(2116) of the total Allowable Costs of the Project;
(j) a certificate of occupancy for the Project Site (when
available);
(k) evidence of the liability and property insurance required
by Section 4.2(d) of this Loan Agreement or by the Security
Agreement;
(1) evidence of zoning compliance;
(m) evidence of availability and adequacy of utilities for the
Project;
(n) copies of all building permits for the Project Site (when
available);
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(o) Cost Certification and a Final Cost Certification (when available);
(p) certification by the Company that the Plans and
Specifications, all construction contracts for the Project, and all
payment and performance bonds or other forms of assurance of
completion of the Project are available or will be available when
obtained for inspection in accordance with Section 3.3 of this Loan
Agreement;
(q) the Company's Certificate of Corporate Good Standing issued
by the Secretary of Delaware dated within thirty (30) days of the
Disbursement Date;
(r) certified copies of the resolutions of the Company
authorizing execution and delivery of all documents with respect to
the Loan, the Lender Loan and the CDBG Loan and performance
thereunder;
(s) certificate of incumbency as to the Company;
(t) copies, certified by the Company to be true, correct and
complete, of the Governing Instruments of the Company;
(u) evidence of title to all Project Equipment purchased with
proceeds of the Loan and copies of executed purchase agreements
therefore;
(v) copies of the Lender Loan Documents, and CDBG Loan
Documents, certified by the Company as being true, accurate and
complete;
(w) an opinion of the Company's counsel, which substantially
sets forth the following in form and substance acceptable to the
Director and the Director's counsel:
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of
the State of Delaware, is qualified to do business in the State
of Ohio, and has all requisite power, corporate or otherwise,
to conduct the Company's business and to own, or hold under
lease, the Company's properties;
(ii) the Company has full corporate power and authority
to execute and deliver the Loan Documents;
(iii) the Company has duly authorized the taking of any
and all actions necessary to carry out and give effect to the
transactions contemplated to be performed on the Company's part
under the Loan Documents;
(iv) each of the Loan Documents has been duly authorized,
executed and delivered by the Company, and is a legal, valid
and binding obligation of the Company,
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enforceable in accordance with its terms, except as such
enforcement may be limited by the application of bankruptcy,
insolvency, reorganization, moratorium and other similar laws
or equitable principles affecting creditors' rights generally;
(v) upon the consummation of the transactions contemplated
hereby, including but not limited to the receipt of appropriate
releases and discharges from Star Bank, N.A., and Bank One,
N.A., and the contemplated subordination agreement by which the
Ashtabula County 503 corporation will subordinate its interests
under the $150,000.00 loan and the $345,000.00 CDBG loan, the
execution and delivery of each of the Loan Documents, and the
performance by the Company of the actions required of it
thereby and the consummation of the transactions contemplated
therein do not and will not conflict with or violate any
provisions of the Company's Governing Instruments or constitute
a default under or conflict with or violate any resolution of
the Board of Directors of the Company or any judgment, decree,
indenture, mortgage, deed of trust, guaranty, lease, agreement
or other instrument known to Company after due inquiry to which
the Company is a party or by which the Company or any of the
Company's property is bound, or conflict with or violate any
provision of any law, administrative regulation, k or court
order or consent decree. "DUE INQUIRY" means that counsel has
directly inquired of the officers of the Company as to whether
any matter referred to in the relevant portion of the opinion
exists or is threatened, and to the best of their knowledge,
none do, except as noted herein.
(vi) to the best knowledge after due inquiry, except as
disclosed in Exhibit A to the opinion, there is no action,
temporary restraining order, injunction, suit, proceeding,
inquiry or investigation at law or in . equity, before or by
any judicial or administrative court or agency, pending or
threatened against or affecting, or involving the properties,
securities or businesses of, the Company, and based solely on
the Officer's Certificate attached to the opinion there are no
facts known upon which to reasonably conclude there is a
reasonable basis for any such action, temporary restraining
order, injunction, suit, proceeding, inquiry or investigation,
which would, individually or in the aggregate, adversely affect
the transactions contemplated by the Loan Documents, the
delivery, validity or enforceability of any of the Loan
Documents, or the financial condition of the Company;
(vii) to the best knowledge after due inquiry, the
Company has obtained all requisite governmental consents,
permits, licenses and approvals necessary for it to operate the
Eligible Project, as defined in the Loan Agreement, and to
enter into, execute and deliver the Loan Documents, and to
perform the Company's respective obligations thereunder;
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(x) evidence satisfactory to the Director that the
Project is not located in a flood-prone area as defined by the
United States Department of Housing and Urban Development in the
Flood Disaster Protection Act of 1973, as amended, or if the
Project is located in a flood-prone area, that appropriate flood
insurance or other satisfactory measures have been taken to
protect the Project from flood damage;
(y) a list of all contractors and subcontractors when
available for the Project (names and addresses) certified as
true, accurate and complete by the Company and affidavits of all
such contractors and subcontractors as to mechanics liens and
prevailing wages;
(z) a duly executed Power of Attorney to authorize wire
transfers, if any;
(aa) a duly executed disbursement request pursuant to Section 3.8;
(bb) such other certifications, documents or opinions as
the Director may reasonably request.
SECTION 3.7. Disbursement of Loan. The Director shall disburse the
Loan by delivering funds in the Loan Amount, 'as determined by the Director in
the Director's sole discretion based on the Initial Cost Certification on July
___, 1992, for release to, or at the direction of, the Company upon written
confirmation by the Director and upon execution of the Lease.
SECTION 3.8. Payment of Costs; Indemnification. The Company shall pay
all reasonable costs incident to the Loan, including recording and title fees,
title examination and insurance fees, escrow fees, all costs and expenses
incurred by the Director and the fees and expenses of the counsel and
accountants assisting in this matter at the request of the Director or his
representative. The Company shall defend, indemnify and hold the Director and
any officials of the State harmless against any and all loss, cost, expense,
claims or actions arising out of or connected with the execution and delivery
of this Loan Agreement or any other Loan Documents and the preparation of
documents relating to the disbursement of the Loan, including all
aforementioned costs and expenses, regardless of whether or not the
disbursement of the Loan shall actually occur. Anything herein to the contrary
notwithstanding, the foregoing agreements by the Company to indemnify any
Indemnified Party shall not apply to grossly negligent acts or omissions or
acts or omissions of willful misconduct on the part of such Indemnified Party.
The provisions of this Section will survive the termination of this Loan
Agreement.
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ARTICLE IV
ADDITIONAL COVENANTS AND AGREEMENTS
SECTION 4.1. Information Concerning Operations. At the request of the
Director and, in any event, within seventy-five (75) days after the last day of
each fiscal year of the Company beginning with the fiscal year in which the
Completion Date occurs, the Company shall furnish to the Director a report on
Project operations setting forth the total number of employees then employed on
the Project and such other employment, economic and statistical data concerning
the Project as may reasonably be requested by the Director.
SECTION 4.2. Affirmative Covenants of the Company. Throughout the term
of this Loan Agreement, the Company shall:
(a) Taxes and Assessments. Pay and discharge promptly, or
cause to be paid and discharged promptly, when due and payable,
all taxes, assessments and governmental charges or levies imposed
upon the Company, the Company's income or any of the Company's
property, or upon any part thereof, as well as all claims of any
kind (including claims for labor, materials and supplies) which,
if unpaid, might by law become a lien or charge upon the
Company's property.
Nothing in this Section shall require the Company to pay or
discharge any such tax, assessment, governmental charge or levy
so long as the validity thereof shall be contested in good faith
and by appropriate legal proceedings, provided that the Company
shall have delivered to the Director an opinion of counsel,
selected by the Company and reasonably acceptable to the Director
to the effect that nonpayment of any such items during the
pendency of such contest will not adversely affect the Director's
rights hereunder.
(b) Maintain Existence. Do or cause to be done all things
necessary to preserve and keep in full force and effect the
Company's existence and the Company's material rights and
franchises.
(c) Maintain Property. Maintain and keep the Company's
property in good repair, working order and condition, and from
time to time make all repairs, renewals and replacements which, in
the opinion of the Company, are necessary and proper so that the
business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that
nothing in this subsection (c) shall prevent the Company from
selling or otherwise disposing of any property whenever, in the
good faith judgment of the Company, such property is obsolete,
worn out, without economic value or unnecessary for the conduct of
the business of the Company.
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(d) Maintain Insurance. Keep all of its insurable property insured
against loss or damage by fire and other risks, maintain public
liability insurance against claims for personal injury, death, or
property damage suffered by others upon, in or about any premises
occupied by the Company; and maintain all such worker's compensation
or similar insurance as may be required under the laws of any state
or jurisdiction in which it may be engaged in business. All
insurance for which provision has been made in this subsection (d)
shall be maintained against such risks and in at least such amounts
as such insurance is usually carried by persons engaged in the same
or similar businesses, and all insurance herein provided for shall
be effected and maintained in force under a policy or policies
issued by insurers of recognized responsibility, except that it may
effect worker's compensation or similar insurance in respect of
operations in any state or other jurisdiction either through an
insurance fund operated by such state or other jurisdiction or by
causing to be maintained a system or systems of self-insurance which
is in accordance with applicable law.
(e) Furnish Information. Furnish to the Director:
(i) Quarterly Reports. Within forty-five (45) days
after the end of each quarterly period of each fiscal year of
the Company, the compiled quarterly financial statements of
the company, and its parent, Bailey Corporation, as at the
end of such quarterly period, together with related
statements of income and retained earnings (or accumulated
deficit) and changes in financial position for such quarterly
period, setting forth in comparative form the corresponding
figures as at the end of or for the corresponding quarter of
the previous fiscal year, all in reasonable detail, prepared
in accordance with generally accepted accounting principles
applied on a consistent basis, subject to usual year-end
audit adjustments.
(ii) Annual Reports. Within one hundred twenty (120)
days after the last day of each fiscal year of the Company and
its parent, Bailey Corporation, consolidating annual financial
statements of the Company and Bailey, which financial
statements as to the Company shall be reviewed by independent
certified public accountants and as to Bailey shall be
accompanied by an opinion of its independent certified public
accountant to the effect that such financial statements were
prepared in accordance with generally accepted accounting
principles consistently applied, and present fairly the
Company's financial position at the close of such period and
the results of its operations for such period.
(iii) Certificate; No Default. With the financial
reports required to be furnished under this Section, a
certificate of the Company's chief executive officer or chief
financial officer stating that (a) no Event of Default has
occurred and is continuing and no event or circumstance which
would constitute an Event of Default, but for
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the requirement that notice be given or time elapse or both,
has occurred and is continuing, or, if such an Event of
Default or such event or circumstance has occurred and is
continuing, a statement as to the nature thereof and the
action which the Company proposes to take with respect
thereto, and that (b) no action, suit or proceeding by it or
against it at law or in equity, or before any governmental
instrumentality or agency, is pending or threatened, which, if
adversely determined, would materially impair the right or
ability of the Company to carry on the business which is
contemplated in connection with the Project or would
materially impair the right or ability of the Company to
perform the transactions contemplated by this Agreement or the
other Loan Documents or would materially and adversely affect
its business, operations, properties, assets or condition, all
as of the date of such certificate, except as disclosed in
such certificate.
(iv) Other Information. Such other information respecting
the business, properties or the condition or operations,
financial or otherwise, of the Company as the Director may
reasonably request.
(f) Deliver Notice. Forthwith upon learning of any of the following,
deliver written notice thereof to the Director, describing the same
and the steps being taken by the Company with respect thereto:
(i) the occurrence of an Event of Default or an event or
circumstance which would constitute an Event of Default, but
for the requirement that notice be given or time elapse or
both, or
(ii) any action, suit or proceeding by it or against it at law
or in equity, or before any governmental instrumentality or
agency instituted or threatened which, if adversely
determined, would materially impair the right or ability of
the Company to carry on the business which is contemplated in
connection with the Project or would materially impair the
right or ability of the Company to perform the transactions
contemplated by the Loan Documents, or would materially and
adversely affect its business, operations, properties, assets
or condition, or the occurrence of a Reportable Event, as
defined in ERISA, under, or the institution of steps by the
Company to withdraw from or the institution of any steps to
terminate, any Plan, as defined in Section 4. 3 (b) hereof,
as to which the Company may have liability.
(g) Inspection Rights. At any reasonable time and from time to time
upon reasonable prior notice, permit the Director, or any agents or
representatives thereof, to examine and make copies of an abstract
from the records and books of account of, and visit the properties of,
the Company and discuss the general business affairs of the Company
with any of its officers; provided, however, that the Company reserves
the right to restrict access to any of the Company's facilities in
accordance with reasonably adopted procedures relating to safety.
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SECTION 4.3. Negative Covenants of the Company. Throughout the term of
this Loan Agreement, the Company shall not:
(a) Maintain Existence. Sell, transfer or otherwise dispose of all, or
substantially all, of its assets, consolidate with or merge into any
other entity, or permit one or more entities to consolidate with or
merge into it; provided, however, that the Company may, without
violating the agreement contained in this subsection (a), consolidate
with or merge into another corporation, or permit one or more other
corporations to consolidate with or merge into it, or sell, transfer
or otherwise dispose of all, or substantially all, of its assets as a
corporation and thereafter dissolve if: (i) the prior written
consent of the Director is obtained (such consent will not be
unreasonably withheld); or (ii) (A) the surviving, resulting or
transferee corporation, as the case may be, assumes in writing all of
the obligations of the Company hereunder (if such surviving,
resulting or transferee corporation is other than the Company); and
(B) the surviving, resulting or transferee corporation, as the case
may be, is a corporation duly organized and validly existing under
the laws of the State or duly qualified to do business therein, and
has a net worth of not less than that of the Company immediately
prior to such disposition, consolidation or merger, transfer or
change of form.
(b) ERISA. Voluntarily terminate any employee benefit plan
or other plan (a "Plan") maintained for employees of the Company
and covered by Title IV of ERISA, so as to result in any material
liability of the Company to the Pension Benefit Guaranty
Corporation ("PBGC"), enter into any Prohibited Transaction (as
defined in Section 4975 of the Internal Revenue Code of 1954, as
amended, and in ERISA) involving any Plan which results in any
material liability of the Company to the PBGC, cause any
occurrence of any Reportable Event (as defined in Title IV of
ERISA) which results in any material liability of it to the PBGC,
or allow or suffer to exist any other event or condition which
results in any material liability of the Company to the PBGC.
(c) Agreements. Enter into any agreement containing any
provision which would be violated or breached by the performance
of its obligations hereunder or under any instrument or document
delivered or to be delivered by it hereunder or in connection
herewith.
(d) Other Covenants.
(i) Suspension of Operation. Suspend or discontinue operation of the
Project.
(ii) Encumber Assets. Pledge, assign, sell
leaseback, hypothecate or in any manner encumber any of the
Project assets, except as otherwise expressly permitted by
this Loan Agreement.
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(iii) Mechanics' and Other Liens. The Company shall not suffer or
permit any mechanics' or other liens to be filed or exist
against the Project nor any part thereof, nor against the
Company's leasehold interest in the Project, nor against the
Project Fund or the Collateral Proceeds Account, by reason of
work, labor, services, or materials supplied or claimed to have
been supplied to, for, or in connection with, the Project or
any part thereof or to the Director of the Company or anyone
holding the Project or any part thereof through or under the
Company. Nothing in this Section shall require the Company to
pay or discharge any such lien so long as the validity thereof
shall be contested in good faith and by appropriate legal
proceedings, provided that the Company shall have delivered to
the Director an opinion of counsel, selected by the Company and
reasonably acceptable to the Director, to the effect that
nonpayment of any such lien during the pendency of such contest
will not adversely affect the Director's right, title or
interest in the Project. If any such liens shall at any time
be filed, the Company shall, within one hundred twenty (120)
days after notice of the filing thereof but subject to the
right to contest set forth in the immediately preceding
sentence, cause the same to be discharged of record by payment,
deposit, bond, order of a court of competent jurisdiction or
otherwise. If the Company shall fail to cause such lien to be
discharged, or to contest the validity or amount thereof,
within the period aforesaid, then, in addition to any other
right or remedy of the Director, the Director may, but shall
not be obligated to, discharge the same either by paying the
amount claimed to be due or by procuring the discharge of such
lien by deposit or by bonding. Any amount paid by the director
shall be reimbursed by the Company to the Director on demand,
and if not so reimbursed on demand shall be paid by the Company
with interest thereof at the Interest Rate for Advances as
provided in the Lease from the date of payment by the
Director, which amounts the Company agrees to pay.
(iv) Removal of Assets. Except as permitted by Section 4.2(c),
remove, transfer or transport any of the Company's assets from
the Project Site other than the operation of motor vehicles or
the shipment of goods in the ordinary course of business, or as
otherwise permitted by the terms hereof.
(v) Maintain Letter of Credit. Maintain at all times while the
Bonds are outstanding, a letter of credit issued by a bank or
trust company reasonably satisfactory to the Director in favor
of the Trustee in an amount of $500,000.00 (the "Letter of
Credit").
(vi) Lease Backs. directly or indirectly, with any person, whereby
the Company shall sell or transfer any property, whether now
owned or hereafter acquired, used or useful in its business, in
connection with the rental or lease or the property so sold or
transferred or of other property which the Company intends
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to sue for substantially the same purpose or purposes as the
property so sold or transferred, except for the Lease and as
may be permitted therein.
SECTION 4.4 Installation of the Company's Own Machinery and Equipment
In addition to the Project Facilities and Project Equipment, the Company may
from time to time, in its sole discretion and at its own expense, install
additional moveable personal property, machinery, equipment, furniture or
fixtures in the Project Facilities or on the Project Site. All such property
so installed by the Company shall remain the sole property of the Company in
which the Director shall have no interest, and may be modified or removed at
any time while the Company is not in default hereunder. Nothing contained in
the preceding provisions of this Section shall prevent the Company from
purchasing, after delivery of this Lease, moveable personal property,
machinery, equipment, furniture or fixtures, not constituting Project
Equipment, on conditional sale contract or lease sale contract, or subject to
vendor's lien or security agreement, as security for the unpaid portion of the
purchase price thereof; provided no such lien or security interest shall attach
to any part of the Project.
ARTICLE V
EVENTS OF DEFAULT AND REMEDIES; TERMINATION
SECTION 5.1. Events of Default. Each of the following shall be an
"Event of Default":
(a) The Company shall fail to pay any amount payable
pursuant to this Loan Agreement on the Note on the date on which
such payment is due and payable or within a ten (10) day grace
period; or
(b) The Company shall fail to observe and perform any
agreement, term or condition contained in this Agreement other
than as required pursuant to subsection (a) above, and such
failure continues for a period of thirty (30) days after notice
of such failure is given to the Company by the Director, or for
such longer period as the Director may agree to in writing;
provided, that if the failure is of such nature that it can be
corrected but not within the applicable period, such failure
shall not constitute an Event of Default so long as the Company
institutes curative action within the applicable period and
diligently pursues such action to completion; or
(c) Any representation or warranty made by the Company (or
any of its officers) herein or in any other Loan Documents, Loan
Approval Documents or Lender Loan Documents or in connection
herewith or therewith shall prove to have been incorrect in any
material respect when made, or the Company suspends or
discontinues operation of the Project for more than thirty (30)
consecutive days when caused by
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casualty, act of God, etc. and the Company is not making
reasonable offers to re-open and continue operation.
(d) The Company shall fail to pay any material indebtedness
of the Company, or any interest or premium thereon, when due
(whether by scheduled maturity, required prepayment, by
acceleration, on demand or otherwise) and such failure shall
continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such indebtedness; or any
other default under any agreement or instrument relating to any
such indebtedness, or any other event, shall occur and shall
continue after the applicable grace period, if any, specified in
such agreement or instrument, and as a result the holder of such
indebtedness elects to accelerate the maturity of such
indebtedness; or any such indebtedness shall be declared to be
due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), prior to the stated
maturity thereof; provided that, the foregoing shall not be
deemed to be an Event of Default if, at the Company's expense and
after prior notice to the Director, by appropriate proceedings
diligently prosecuted, the Company contests in good faith the
validity or amount of any of the foregoing items and during the
period of contest, and after notice to the Director, may permit
the items so contested to remain unpaid; provided further that,
if at any time the Director, in the Director's sole discretion,
shall instruct the Company to pay any such items and such items
are not paid within three (3) days after notice from the
Director, such failure to pay shall be an Event of Default
hereunder; or
(e) The Company commences a voluntary case concerning it
under titles of the United States Code entitled "Bankruptcy" as
now or hereafter in effect, or any successor thereto (the
"Bankruptcy Code") ; or an involuntary case is commenced against
the Company under the Bankruptcy Code and relief is ordered
against the Company, or the petition is controverted but is not
dismissed within sixty (60) days after the commencement of the
case; or the Company is not generally paying its debts as such
debts become due; or a custodian (as defined in the Bankruptcy
Code) is appointed for, or takes charge of, all or substantially
all of the property of the Company; or the Company commences any
other proceeding under any reorganization, arrangement,
readjustment of debt, relief of debtors, dissolution, insolvency
or liquidation or similar law of any jurisdiction whether now or
hereafter in effect; or there is commenced against the Company
any such proceeding which remains undismissed for a period of
sixty (60) days; or the Company is adjudicated insolvent or
bankrupt; or the Company fails to controvert in a timely manner
any such case under the Bankruptcy Code or any such proceeding or
any order of relief or other order approving any such case or
proceeding or in the appointment of any custodian or the like of
or for it or any substantial part of its property or suffers any
such appointment to continue undischarged or unstayed for a
period of sixty (60) days; or the Company makes a general
assignment for the benefit of creditors; or any action is taken
by the Company for the purpose of effecting any of the foregoing;
or a receiver or trustee or any other
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officer or representative of the court or of creditors, or any
court, governmental officer or agency, shall under color of legal
authority, take and hold possession of any substantial part of
the property or assets of the Company for a period in excess of
sixty (60) days; or
(f) A judgment or order for the payment of money in excess
of Fifty Thousand Dollars ($50,000.00) shall be rendered against
the Company and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of thirty (30) consecutive days
during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect;
or
(g) Any default under the Note, the Security Document, any
other Loan Document, the Guaranties or the Loan Documents shall
have occurred and be continuing; and is not cured within any
applicable period of grace or cure;
(h) The Company fails to meet its minimum funding
requirements under Section 301 et seq. of ERISA, with respect to
any of its Plans.
SECTION 5.2. Remedies on Default. Whenever an Event of Default shall
have happened and be subsisting, beyond any applicable period of grace or cure
any one or more of the following remedial steps may be taken:
(a) If the Loan has not been disbursed, the Director may
terminate any and all of its obligations under this Agreement and
the Commitment;
(b) The Director may declare all payments under the Note to
be immediately due and payable, whereupon the same shall become
immediately due and payable;
(c) The Director may exercise any remedies specified in the
Loan Documents or any documents ancillary thereof, including but
not limited to the Lease;
(d) The Director may have access to, inspect, examine and
make copies of the books and records accounts and financial data
of the Company; or
(e) The Director may pursue all remedies now or hereafter
existing at law or in equity to collect all amounts then due and
thereafter to become due under this Agreement, the Security
Document, the Note or any other Loan Documents, or to enforce the
performance and observance of any other obligation or agreement
of the Company under the Loan Documents.
SECTION 5.3. No Remedy Exclusive. No remedy conferred upon or reserved
to the Director by this Agreement is intended to be exclusive of any other
available remedy or remedies, but each and
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every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Agreement, each other Loan Document, or now or
hereafter existing at law, in equity or by statute. No delay or omission to
exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Director to exercise any remedy reserved to
it in this Article, it shall not be necessary to give any notice, other than
such notice as may be expressly provided for herein or required by law.
SECTION 5.4. Agreement to Pay Attorneys' Fees and Expenses. If an
Event of Default shall occur and the Director should incur reasonable expenses,
including reasonable attorney's fees, in connection with the enforcement of
this Agreement, or any other Loan Document, or the collection of sums due
thereunder, the Company shall reimburse the Director for the expenses so
incurred upon demand. If any such expenses are not so reimbursed, the amount
thereof, together with interest thereon from the date of demand for payment at
the Interest Rate for Advances (as defined in the Security Document), shall
constitute indebtedness secured by the Security Document, and in any action
brought to collect such indebtedness or to foreclose or enforce the Security
Document, the Director shall be entitled to seek the recovery of such expenses
in such action.
SECTION 5.5. No Waiver. No failure by the Director to insist upon the
strict performance by the Company of any provision hereof shall constitute a
waiver of his right to strict performance and no express waiver shall be deemed
to apply to any other existing or subsequent right to remedy the failure by the
Company to observe or comply with any provision hereof.
SECTION 5.6. Reinstatement. Notwithstanding any termination of this
Loan Agreement in accordance with the provisions of Section 5.2 hereof, unless
and until the Director shall have entered into a valid and binding agreement
providing for the reletting of the Project, the Company may at any time after
such termination pay all accrued unpaid rent and any other amounts due and
payable under this Loan Agreement plus any costs to the Director and the
Trustee (including, but not limited to, fees and expenses) occasioned by the
default and fully cure all other defaults then capable of being cured. Upon
such payment and cure, this Loan Agreement shall be fully reinstated, as if it
had never been terminated, and the Company shall be restored to the use,
occupancy and possession of the Project.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Term of Loan Agreement. This Agreement shall be and
remain in full force and effect from the date of its delivery until (a) the
termination of this Agreement pursuant to Section 5.2 (a) hereof or (b) such
time as the Loan shall have been fully repaid and all other sums payable by the
Company under this Agreement, the Security Document, the Note and the other
Loan Documents shall have been paid.
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SECTION 6.2. Notices. All notices, certificates, requests or other
communications hereunder shall be in writing and shall be deemed to be
sufficiently given when mailed by registered or certified mail, postage
prepaid, sent prepaid via a reputable overnight courier or by telecopy and
addressed to the appropriate recipient at its Notice Address. The Company or
the Director may, by notice given hereunder, designate any further or different
addresses to which subsequent notices, certificates, requests or other
communications shall be sent.
SECTION 6.3. Extent of Covenants of the Director; No Personal Liability.
All covenants, obligations and agreements of the Director contained in this
Agreement shall be effective to the extent authorized and permitted by
applicable law. No such covenant, obligation or agreement shall be deemed to
be a covenant, obligation or agreement of any present or future Director in
other than his official capacity acting pursuant to the Act.
SECTION 6.4. Binding Effect. This Agreement shall inure to the benefit
of and shall be binding in accordance with its terms upon the Director, the
Company and their respective successors and assigns.
SECTION 6.5. Amendments and Supplements. This Agreement may not be
amended or supplemented except by an instrument in writing executed by the
Director and the Company.
SECTION 6.6. Execution Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be regarded as an original and
all of which shall constitute but one and the same instrument.
SECTION 6.7. Severability. If any provision of the Agreement, or any
covenant, obligation or agreement contained herein is determined by a court to
be invalid or unenforceable, such determination shall not affect any other
provision, covenant, obligation or agreement, each of which shall be construed
and enforced as if such invalid or unenforceable portion were not contained
herein. Such invalidity or unenforceability shall not affect any valid and
enforceable application thereof, and each such provision, covenant, obligation
or agreement, shall be deemed to be effective, operative, made, entered into or
taken in the manner and to the full extent permitted by law.
SECTION 6.8. Captions. The captions and headings in this Agreement
shall be solely for convenience of reference and shall in no way define, limit
or describe the scope or intent of any provisions or Sections of this
Agreement.
SECTION 6.9. Governing Law. This Agreement shall be deemed to be a
contract made under the laws of the State and for all purposes shall be
governed by and construed in accordance with the laws of the State.
IN WITNESS WHEREOF, this Agreement has been executed and delivered all as
of the date hereinbefore written.
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DIRECTOR OF DEVELOPMENT OF THE STATE OF
OHIO, ACTING ON BEHALF OF THE STATE.
By: /s/ Thomas C. Washbush
------------------------------------
Thomas C. Washbush
Chief Legal Counsel
BAILEY TRANSPORTATION PRODUCTS, INC.
By: /s/ Anthony A. Martino
------------------------------------
Title: President
---------------------------------
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