EXHIBIT 10(e)(3)
LOAN AGREEMENT
FOR
A $7,500,000 REVOLVING LINE OF CREDIT
AND
A $9,000,000 TERM LOAN
MADE BY AND BETWEEN
CORE MOLDING TECHNOLOGIES, INC.
AND
KEYBANK NATIONAL ASSOCIATION,
A NATIONAL BANKING ASSOCIATION,
88 EAST BROAD STREET, 2ND FLOOR
COLUMBUS, OHIO 43215
DATED AS OF DECEMBER 30, 2003
TABLE OF CONTENTS
SECTION 1. DEFINITIONS................................................. 1
1.1 Certain Definitions.................................................. 1
1.2 Accounting Terms..................................................... 1
1.3 Rules of Interpretation.............................................. 1
SECTION 2. TERMINATION OF EXISTING REVOLVING CREDIT LOAN............... 2
SECTION 3. LOANS....................................................... 2
3.1 Revolving Credit Loan................................................ 2
3.2 Term Loan............................................................ 3
3.3 Rates of Interest; Terms of Payment; and Late Charges................ 3
3.4 Prepayments.......................................................... 3
3.5 Maturity of the Revolving Credit Loan and the $9,000,000 Term Loan... 3
3.6 Interest Rate Agreements............................................. 3
SECTION 4. FEES; PAYMENTS; EXPENSES.................................... 3
4.1 Revolving Credit Loan Fee............................................ 3
4.2 $9,000,000 Term Loan Fee............................................. 3
4.3 Unused Line of Credit Fee............................................ 3
4.4 Revolving Credit Loan Renewal Fee.................................... 4
4.5 Costs and Expenses................................................... 4
SECTION 5. SECURITY.................................................... 4
5.1 Security Agreement................................................... 4
5.2 Mortgage on Columbus, Ohio Property.................................. 4
5.3 Mortgage on Gaffney, South Carolina Property......................... 4
SECTION 6. CONDITIONS TO CLOSING AND ALL LOAN ADVANCES................. 4
6.1 Conditions to Closing and all Loan Advances.......................... 4
SECTION 7. REPRESENTATIONS AND WARRANTIES.............................. 6
7.1 Organization and Standing............................................ 7
7.2 No Violation......................................................... 7
7.3 Power and Authority.................................................. 7
7.4 Enforceability....................................................... 7
7.5 Consents or Approvals................................................ 7
7.6 Litigation........................................................... 7
7.7 Compliance with Other Instruments; Compliance with Law............... 7
7.8 Subsidiaries......................................................... 8
7.9 Title to Property.................................................... 8
7.10 ERISA................................................................ 8
7.11 Taxes................................................................ 8
7.12 Environmental Matters................................................ 8
7.13 Disclosure........................................................... 9
SECTION 8. AFFIRMATIVE COVENANTS....................................... 9
8.1 Use of Proceeds...................................................... 9
8.2 Conduct of Business; Maintenance of Existence........................ 9
8.3 Compliance with Laws................................................. 9
8.4 Insurance............................................................ 9
8.5 Financial Statements, Etc............................................ 10
8.6 Notice of Default.................................................... 10
8.7 Environmental Matters................................................ 10
8.8 Taxes and Other Liens................................................ 10
8.9 Inspection........................................................... 11
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8.10 Depository Requirements.............................................. 11
8.11 Further Assurances................................................... 11
SECTION 9. NEGATIVE COVENANTS.......................................... 11
9.1 Consolidation, Merger or Acquisition................................. 11
9.2 Disposition of Assets................................................ 11
9.3 Indebtedness......................................................... 11
9.4 Liens................................................................ 12
9.5 Guaranties........................................................... 12
9.6 Loans and Investments................................................ 12
9.7 Lines of Business.................................................... 12
9.8 Subsidiaries......................................................... 12
SECTION 10. FINANCIAL COVENANTS......................................... 12
10.1 Total Funded Obligations to EBITDAL Ratio............................ 13
10.2 Minimum Fixed Charge Coverage Ratio.................................. 13
10.3 Definition of Certain Terms.......................................... 13
SECTION 11. EVENTS OF DEFAULT........................................... 14
11.1 Events of Default.................................................... 14
11.2 Remedies Upon an Event of Default.................................... 15
SECTION 12. GENERAL..................................................... 15
12.1 Amendments, etc...................................................... 15
12.2 Notices, etc......................................................... 15
12.3 No Waiver; Remedies.................................................. 16
12.4 Right of Set-off..................................................... 16
12.5 Indemnification...................................................... 16
12.6 Successors and Assigns............................................... 17
12.7 Severability......................................................... 17
12.8 Governing Law........................................................ 17
12.9 Reproduction of Documents............................................ 17
12.10 Survival............................................................. 17
12.11 Counterparts......................................................... 17
12.12 Time is of the Essence............................................... 17
12.13 Captions............................................................. 18
12.14 No Third Party Benefit............................................... 18
12.15 Complete Agreement................................................... 18
12.16 Consent to Jurisdiction and Waiver of Objection to Venue............. 18
12.17 WAIVER OF JURY TRIAL................................................. 18
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APPENDIX A -- DEFINITIONS
EXHIBIT A -- $7,500,000 REVOLVING CREDIT NOTE
EXHIBIT B -- $9,000,000 TERM NOTE
EXHIBIT C -- FORM OF SECURITY AGREEMENT
EXHIBIT D -- FORM OF OHIO MORTGAGE
EXHIBIT E -- FORM OF SOUTH CAROLINA MORTGAGE
EXHIBIT F -- FORM OF COVENANT COMPLIANCE CERTIFICATE
EXHIBIT G -- FORM OF BORROWER'S COUNSEL LEGAL OPINION
EXHIBIT H -- FORM OF GUARANTY
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LOAN AGREEMENT
This Loan Agreement (the "AGREEMENT") is made and entered into in
Columbus, Ohio, effective as of December 29, 2003, by and between KeyBank
National Association, a national banking association (the "BANK"), and Core
Molding Technologies, Inc., a Delaware corporation (the "BORROWER" and sometimes
referred to hereinafter as "CORE MOLDING"), as follows:
WHEREAS, the Borrower has previously entered into various financing
arrangements with the Bank in the form of: (i) a $12,000,000 sale / leaseback
equipment financing facility and a $5,000,000 equipment lease facility, as
evidenced by that certain Master Equipment Lease Agreement dated December 2,
1997, as thereby amended, between the Borrower and an affiliate of the Bank;
(ii) a standby letter of credit (the "LETTER OF CREDIT") in the approximate
amount of $7,500,000, issued by the Bank on behalf of the Borrower to support
the issuance of Industrial Revenue Bonds by the Borrower, with the Borrower's
obligations relating to the issuance of the Letter of Credit by the Bank
evidenced by that certain Reimbursement Agreement dated March 29, 2001, as
thereby amended; and (iii) a $7,500,000 revolving loan evidenced by that certain
Loan Agreement dated December 3, 1997, as thereby amended (the "EXISTING
REVOLVING LOAN AGREEMENT"), between the Borrower and the Bank and secured by a
first priority security interest in all business assets of the Borrower (the
"EXISTING REVOLVING CREDIT LOAN");
WHEREAS, the Borrower and the Bank are entering into this Agreement to
set forth the terms and conditions pursuant to which the Bank will (i) replace
the Existing Revolving Credit Loan in its entirety with a new revolving line of
credit not to exceed the aggregate principal amount of $7, 500,000 (the
"REVOLVING CREDIT LOAN"), and (ii) provide a term loan to the Borrower in the
principal amount of $9,000,000 (the "$9,000,000 TERM LOAN," together with the
Revolving Credit Loan, collectively referred to herein as the "LOANS") in order
to pay off the International Secured Note; and
WHEREAS, the Borrower and the Bank desire to establish the security for
and the conditions under which each of the above-described $9,000,000 Term Loan
and Revolving Credit Loan will be established, with all existing first priority
security interests of the Bank remaining in effect and evidenced by the Security
Documents.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the Borrower and the Bank hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1 Certain Definitions. Certain terms used in this Agreement
shall have the meanings set forth in Appendix A and Section 10.3.
1.2 Accounting Terms. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all determinations with
respect to accounting matters hereunder shall be made, and all financial
statements and certificates and reports as to financial matters required to be
delivered hereunder shall be prepared, in accordance with GAAP.
1.3 Rules of Interpretation.
(a) A reference to any document or agreement shall
include such document or agreement as amended, modified or supplemented and in
effect from time to time in accordance with its terms and the terms of this
Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any Person includes its permitted
successors and permitted assigns.
(d) The words "include," "includes" and "including" are
not limiting.
(e) The words "herein," "hereof," "hereunder" and words
of like import shall refer to this Agreement as a whole and not to any
particular section or subsection of this Agreement.
SECTION 2. TERMINATION OF EXISTING REVOLVING CREDIT LOAN.
In connection with the Revolving Credit Loan being made pursuant to
this Agreement, the Existing Revolving Credit Loan shall be terminated effective
as of the date first set forth above. This Agreement shall be deemed an
amendment to and replacement of the Existing Revolving Loan Agreement in its
entirety, which shall have no further force and effect. Notwithstanding the
termination of the Existing Revolving Credit Loan, the Bank's first priority
security interest in all of the Borrower's business assets shall remain
perfected and in full force and effect and the Security Agreement shall be
deemed an amendment to and replacement of any existing security agreement
between the Borrower and the Bank. The Borrower and the Bank's existing
mortgages on the Borrower's real property located in Columbus, Ohio and Gaffney,
South Carolina, shall also remain in full force and effect. The Bank shall have
no further obligation to make any advances or other payments to the Borrower or
any other Person pursuant to the Existing Revolving Credit Loan and all future
advances in accordance with the Revolving Credit Loan shall be made pursuant to
this Agreement.
SECTION 3. LOANS.
3.1 Revolving Credit Loan.
(a) General. Upon the terms and subject to the conditions
set forth in this Agreement, and in reliance upon the representations,
warranties and covenants of the Borrower contained herein, the Bank agrees to
provide to the Borrower a revolving line of credit not to exceed the aggregate
principal amount of $7,500,000.00 (the "REVOLVING CREDIT LOAN"). The Revolving
Credit Loan shall be evidenced by a promissory note, in the form of the attached
Exhibit A, executed by the Borrower (the "REVOLVING CREDIT NOTE"). Within the
foregoing limits and subject to the terms and conditions of this Agreement and
the Revolving Credit Note, the Borrower may borrow, repay and reborrow under the
Revolving Credit Loan at any time and from time to time.
(b) Procedure for Borrowing under the Revolving Credit
Loan. The Borrower may borrow under the Revolving Credit Loan on any Banking Day
provided that Borrower gives the Bank either an oral or written notice
specifying (i) the requested date of borrowing and (ii) the aggregate amount of
the requested borrowing (the "BORROWING NOTICE"), which Borrowing Notice must be
received by the Bank no later than 3:00 p.m. Columbus, Ohio time on the
requested date of borrowing. Upon receipt of each Borrowing Notice from
Borrower, the Bank shall, upon satisfaction of the conditions set forth in
Section 6 and, provided that the sum of the requested Advance pursuant to a
Borrowing Notice and the outstanding principal balance under the Revolving
Credit Note at that time does not exceed $7,500,000, Advance an amount equal to
the requested borrowing under the Revolving Credit Note and deposit such amount
into the Borrower's account maintained at the Bank. The Bank may, but need not,
require that all oral requests be confirmed in writing. All communications,
instructions, or directions by telephone or otherwise to the Bank are to be
directed to the Bank's office identified in Section 12.2. Any Responsible
Officer is authorized to request Advances and authorize payments until the Bank
receives from the Borrower
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written notice of revocation of his or her authority. The Borrower agrees to be
liable for all sums either: (i) Advanced in accordance with the instructions of
any Responsible Officer or (ii) credited to any of the Borrower's accounts with
the Bank.
3.2 Term Loan. Upon the terms and subject to the conditions set
forth in this Agreement, and in reliance upon the representations, warranties
and covenants of the Borrower contained herein, the Bank agrees to provide to
the Borrower a term loan in the principal amount of $9,000,000 (the "$9,000,000
TERM LOAN"). The $9,000,000 Term Loan shall be evidenced by a promissory note,
in the form of the attached Exhibit B, executed by the Borrower (the "$9,000,000
TERM NOTE").
3.3 Rates of Interest; Terms of Payment; and Late Charges. The
rates of interest, terms of payment, and late charges for the Revolving Credit
Loan and the $9,000,000 Term Loan shall be as set forth respectively in the
Revolving Credit Note and the $9,000,000 Term Note.
3.4 Prepayments. Borrower shall have the right to prepay the Loans
in whole or in part without premium or penalty at any time and from time to
time; provided that if Borrower shall repay any LIBOR Advance (defined in the
Notes) or LIBOR Loan (defined in the Notes) made under either of the Notes, then
Borrower shall reimburse the Bank for any resulting loss or expense incurred by
the Bank as a result of such prepayment. The amount of such loss or expense
shall be determined in the manner set forth in the respective Notes. All partial
prepayments shall be applied in the manner provided in the Notes.
3.5 Maturity of the Revolving Credit Loan and the $9,000,000 Term
Loan. The Revolving Credit Loan and the $9,000,000 Term Loan will mature and the
total unpaid principal and interest amounts thereunder shall be due and payable
on the Maturity Dates of each respective Loan as set forth in the respective
Notes.
3.6 Interest Rate Agreements. If Borrower purchases an interest
rate protection product from the Bank, Borrower shall enter into the Bank's
customary form of agreement ("INTEREST RATE AGREEMENT") relating to such
interest rate protection product. Any Indebtedness incurred pursuant to an
Interest Rate Agreement entered into by Borrower and the Bank shall constitute
an Obligation evidenced by the Notes and secured by the Security Agreement, the
Mortgages, and the other Loan Documents to the same extent and effect as if the
terms and provisions of such Interest Rate Agreement were set forth herein,
whether or not the aggregate of such Obligations, together with the
disbursements made by the Bank of the proceeds of the Loans, shall exceed the
face amount of the Notes. Borrower hereby collaterally assigns to the Bank any
and all interest rate protection products purchased or to be purchased by
Borrower in connection with the Loans, as additional security for the Loans, and
agrees to provide the Bank with any additional documentation requested by the
Bank in order to confirm or perfect such security interest during the term of
the Loans.
SECTION 4. FEES; PAYMENTS; EXPENSES.
4.1 Revolving Credit Loan Fee. At closing, the Borrower shall pay
to the Bank a fee of $1,000 in consideration for the Bank making the Revolving
Credit Loan to the Borrower.
4.2 $9,000,000 Term Loan Fee. At closing, the Borrower shall pay
to the Bank a fee of $5,000 in consideration for the Bank making the $9,000,000
Term Loan to the Borrower.
4.3 Unused Line of Credit Fee. The Borrower shall pay to the Bank
an unused line of credit fee equal to one eighth of one percent (.125%) per
annum on the amount of the Revolving Credit Loan not used for cash borrowings.
Such fee shall be payable quarterly in arrears on the first Business Day of
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each calendar quarter during the term of this Agreement. Such fee shall be
calculated based on the average cash borrowings of Borrower under the Revolving
Credit Loan for each calendar quarter.
4.4 Revolving Credit Loan Renewal Fee. In the event that the Bank
agrees to extend the Maturity Date of the Revolving Credit Loan, the Borrower
agrees to pay the Bank an annual renewal fee of $1,000 for each year that such
Maturity Date is extended. Any extension of such Maturity Date shall be subject
to the Bank's review and approval of any such extension. The Bank shall have no
obligation to extend the Maturity Date and any extension shall be considered by
the Bank in its sole discretion on a case-by-case basis.
4.5 Costs and Expenses. The Borrower shall pay or reimburse the
Bank, as applicable, for all reasonable costs and expenses relating to or
incidental with, the making of the Loans. Such costs and expenses shall include,
but not be limited to, reasonable fees and expenses of the Bank's counsel,
recording and filing fees, UCC search fees, title insurance premiums and related
costs and expenses, appraiser's fees, inspection fees, all costs and expenses of
the Bank relating to the administration of the Loans.
SECTION 5. SECURITY.
5.1 Security Agreement. In order to secure payment and performance
of the Borrower's Obligations to the Bank, the Borrower hereby acknowledges that
the Bank shall continue to maintain a first priority security interest in, and a
lien on, all right, title and interest of the Borrower in and to substantially
all of the business assets of the Borrower, including, but not limited to,
inventory, chattel paper, accounts, deposit accounts, investment property,
equipment and general intangibles and that on the Closing Date the Borrower and
Core Composites shall enter into a security agreement in favor of the Bank
substantially in the form of Exhibit C attached hereto (the "SECURITY
AGREEMENT") and any UCC-1 financing statements necessary to further evidence the
Bank's existing security interest in the items described in the Security
Agreement.
5.2 Mortgage on Columbus, Ohio Property. In order to secure
payment and performance of the Borrower's Obligations to the Bank, the Borrower
hereby acknowledges that the Bank shall continue to maintain a first priority
lien and mortgage on the Borrower's fee interest in the real property located at
800 Manor Park Drive, Columbus, Ohio 43228 and that on the Closing Date the
Borrower shall enter into a Mortgage, Assignment of Leases and Rents, and
Fixture Filing in favor of the Bank substantially in the form of Exhibit D
attached hereto (the "OHIO MORTGAGE") to further evidence the Bank's existing
lien and mortgage in such real property.
5.3 Mortgage on Gaffney, South Carolina Property. In order to
secure payment and performance of the Borrower's Obligations to the Bank, the
Borrower hereby acknowledges that the Bank shall continue to maintain a second
priority lien and mortgage on the Borrower's fee interest in the real property
located at 24 Commerce Drive, Gaffney, South Carolina 29340 and that on the
Closing Date the Borrower shall enter into a Mortgage, Assignment of Leases and
Rents, and Fixture Filing in favor of the Bank substantially in the form of
Exhibit E attached hereto (the "SOUTH CAROLINA MORTGAGE") to further evidence
the Bank's existing lien and mortgage in such real property.
SECTION 6. CONDITIONS TO CLOSING AND ALL LOAN ADVANCES.
6.1 Conditions to Closing and all Loan Advances. The Bank shall
not be obligated to make any of the Loans (or any Advances thereunder) to the
Borrower until the following conditions have been and continue to be satisfied
to the satisfaction of the Bank in its sole discretion:
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(a) Loan Documents. This Agreement, the borrowings
hereunder, the Notes, the Security Agreement, the Mortgages, the Guaranty and
all transactions contemplated by this Agreement shall have been duly authorized
by the Borrower. The Borrower shall have duly executed and delivered to the Bank
this Agreement, the Notes and the Security Agreement, and the Mortgages. Core
Composites shall have duly executed and delivered to the Bank the Security
Agreement and the Guaranty.
(b) No Default or Event of Default. On the Closing Date
and on the date of the making of each Advance under the Revolving Credit Note,
no Default or Event of Default shall have occurred and be continuing.
(c) Correctness of Representations. On the Closing Date
and on the date of each Advance under the Revolving Credit Note, all
representations and warranties made by the Borrower and Core Composites in
Section 7 below or otherwise set forth in writing in connection herewith shall
be true and correct in all material respects with the same effect as though such
representations and warranties had been made on the date of such Advance, except
that representations and warranties expressly limited to a certain date shall be
true and correct in all material respects as of that date.
(d) Approvals. On the Closing Date and on the date of
each Advance under the Revolving Credit Note, all necessary consents, approvals,
licenses, permissions, registrations or validations of any Governmental
Authority or any other Person required for the execution, delivery, performance
or carrying out of the provisions of this Agreement or any of the other Loan
Documents shall have been obtained and shall be in full force and effect and
copies thereof certified by a duly authorized officer of the Borrower to such
effect shall have been delivered to the Bank.
(e) Filing of Financing Statements, etc. On or before the
Closing Date, UCC-1 Financing Statements or other appropriate documentation
relating to the security interests and rights granted pursuant to the Security
Agreement shall have been duly recorded or filed in such manner and in such
places as is required by law to establish, preserve, protect, and perfect such
security interests and rights; and all taxes, fees and other charges in
connection with the execution, delivery and filing of this Agreement and such
financing statements and other appropriate documentation shall have been duly
paid.
(f) Recording of Mortgages. On or before the Closing
Date, the Mortgages shall have been duly recorded in such manner and in such
places as required by law to further evidence and establish the Bank's lien and
mortgage on both the Columbus, Ohio real property and the Gaffney, South
Carolina real property as described in Sections 5.2 and 5.3 above.
(g) Opinion of Counsel for Borrower. The Bank shall have
received an opinion of counsel for the Borrower addressed to the Bank in form
and substance reasonably satisfactory to the Bank and its counsel as set forth
on Exhibit G attached hereto.
(h) Certificates of Insurance. On or before the Closing
Date, the Borrower shall have delivered to the Bank evidence that the Borrower
has in effect insurance of the character and amount described in Section 8.4
below.
(i) Supporting Documents. On or before the Closing Date,
the Borrower shall have delivered to the Bank the following supporting
documents:
(i) A good standing certificate for the Borrower
dated as of a recent date issued by the Delaware Secretary of State.
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(ii) certificates dated as of a recent date with
respect to the due qualification of the Borrower to do business in each
jurisdiction where the failure to be so qualified would have a Material
Adverse Effect, issued by the Secretary of State of each such
jurisdiction;
(iii) copy of the certificate of incorporation of
the Borrower, and all amendments thereto, certified by the Delaware
Secretary of State, as in effect on the date hereof;
(iv) a certificate of the Secretary or Assistant
Secretary of the Borrower certifying as to (a) the certificate of
incorporation of Borrower, as in effect on the date thereof, (b) the
by-laws of Borrower, as in effect on the date thereof; (c) the
incumbency and signatures of the officers of the Borrower who have
executed any documents in connection with the transactions contemplated
by this Agreement; and (d) the resolutions of the Borrower authorizing
the execution, delivery and performance of this Agreement and the
making of the Loans hereunder, and the execution and delivery of the
Loan Documents to be executed and delivered by the Borrower; and
(j) all other information and documents which the Bank or
its counsel may reasonably request in connection with the transactions
contemplated by this Agreement.
(k) Payoff Letter for International Indebtedness. On or
prior to the Closing Date, the Borrower shall have delivered to the Bank and the
Bank shall have reviewed and approved to its reasonable satisfaction a payoff
letter from International Truck & Engine Corporation ("INTERNATIONAL") setting
forth, among other things, (i) the payoff amount for the International Secured
Note, (ii) the release and termination of any and all security interests, liens,
and other encumbrances of International in and to the Collateral or any other
property or assets or the Borrower, and (iii) and the release and satisfaction
in full of the Indebtedness evidenced by the International Secured Note and all
other indebtedness, liabilities, and other obligations owing by the Borrower to
International (the "INTERNATIONAL PAYOFF LETTER") ; provided, however, that the
Borrower may maintain approximately $200,000 in outstanding indebtedness to
International after the payment of the proceeds from the $9,000,000 Term Loan to
International, with such remaining indebtedness reflected by an unsecured
promissory note delivered to International by the Borrower (the "UNSECURED
INTERNATIONAL NOTE") as of the Closing Date.
(l) Litigation. On the Closing Date and on the date of
making each Advance under the Revolving Credit Note, no litigation, arbitration,
proceeding or investigation shall be pending or, to the knowledge of the
Borrower, threatened against the Borrower which, in the reasonable judgment of
the Bank, might have a Material Adverse Effect.
(m) Adverse Change. There shall have been no adverse
change in the financial condition or business of the Borrower between the date
of the then most recent financial statements furnished to the Bank and the date
of each Advance under the Revolving Credit Note which, in the reasonable
judgment of the Bank, might have a Material Adverse Effect.
(n) Fees and Expenses. On or before the Closing Date, the
Borrower shall have paid to the Bank all amounts payable under Section 4
identified by the Bank on or before the Closing Date.
(o) Legal Matters. All documents and legal matters
incident to the transactions contemplated by this Agreement shall be reasonably
satisfactory to Thompson Hine LLP, legal counsel for the Bank.
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SECTION 7. REPRESENTATIONS AND WARRANTIES.
In order to induce the Bank to enter into this Agreement and to make
the contemplated Loans, the Borrower represents and warrants as follows (with
respect to itself and Core Composites) and the following representations and
warranties shall survive the execution and delivery of this Agreement. For
purposes of this Section, each reference to "Borrower" shall also include and be
deemed to be a reference to Core Composites.
7.1 Organization and Standing. Borrower is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and is duly qualified or licensed as a foreign corporation in good
standing in each jurisdiction in which the failure to do so would have a
Material Adverse Effect.
7.2 No Violation. Neither the execution, delivery or performance
of this Agreement or any other Loan Document to which the Borrower is a party,
nor consummation of the transactions contemplated herein or thereby will (a)
contravene any law, statute, rule or regulation to which Borrower is subject or
any judgment, decree, franchise, order or permit applicable to Borrower where
such contravention has or could reasonably be anticipated to have a Material
Adverse Effect, or (b) conflict or be inconsistent with or will result in any
breach of, or constitute a default under, any Contractual Obligation of
Borrower, or (c) violate any provision of the certificate of incorporation or
by-laws or other organizational documents of Borrower.
7.3 Power and Authority. The execution, delivery and performance
of this Agreement and the other Loan Documents to which it is a party are within
the corporate powers of the Borrower and have been duly authorized by all
necessary corporate action.
7.4 Enforceability. This Agreement and each other Loan Document to
which the Borrower is a party constitute valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with their terms, except
as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors' rights
generally and subject to general principles of equity, whether applied in a
court of equity or at law.
7.5 Consents or Approvals. No order, permission, consent,
approval, license, authorization, registration or validation of, or filing with,
or exemption by, any Governmental Authority or any other Person is required to
authorize, or is required in connection with, the execution, delivery, or
performance of this Agreement or any other Loan Document by the Borrower, or the
taking of any action contemplated hereby or thereby, which would otherwise
result in a Material Adverse Effect, except for the (a) filing of UCC-1
financing statements in the appropriate filing offices as provided in Section
6.1(e) herein, (b) recording of the Mortgages in the appropriate recording
offices as provided in Section 6(f), and (c) delivery of the International
Payoff Letter to the Borrower and such additional documents and instruments
related thereto.
7.6 Litigation. There are no actions, suits or proceedings pending
or threatened against or affecting the Borrower which in any one case or in the
aggregate, if determined adversely to the interests of the Borrower, could
reasonably be anticipated to have a Material Adverse Effect.
7.7 Compliance with Other Instruments; Compliance with Law.
Borrower is not in default under any Contractual Obligation (including any
Contractual Obligation relating to any Indebtedness of Borrower), where such
default has or could reasonably be anticipated to have a Material Adverse
Effect. Borrower is not in default or in violation of any applicable statute,
rule, writ, injunction, decree, order or regulation of any Governmental
Authority having jurisdiction over the Borrower, where such default or violation
has or could reasonably be anticipated to have a Material Adverse Effect.
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7.8 Subsidiaries. As of the Closing Date, Borrower's Subsidiaries
include Core Composites, and Composites Services de Mexico, S. de R.L. de C.V.
and Corecomposites de Mexico, S. de R.L. de C.V. (collectively, the "MEXICAN
SUBSIDIARIES"). The fair value of any assets currently owned by the Mexican
Subsidiaries less their liabilities is less than $100,000.
7.9 Title to Property. Borrower has good and marketable title to
all of its properties and assets, except such as have been disposed of in the
ordinary course of business, and none of such properties or assets is subject to
any Lien, except for any Permitted Liens. Borrower enjoys peaceful and
undisturbed possession under all leases necessary in any material respect for
the operation of its properties and assets and no material default exists under
such leases (after taking into account applicable cure periods under said
leases). All such leases are valid and subsisting and are in full force and
effect.
7.10 ERISA. The Borrower has fulfilled its obligations under the
minimum funding standards of ERISA and the Code with respect to pension plans
maintained by The Borrower or any member of any Funding Standard Controlled
Group or to which the Borrower or any member of any Funding Standard Controlled
Group is obligated to contribute. The Borrower is in compliance in all material
respects with the presently applicable provisions of ERISA and the Code, and has
not incurred any liability to the PBGC or a Plan under Title IV or ERISA (other
than to make contributions or premium payments in the ordinary course).
7.11 Taxes. All tax returns of the Borrower required to be filed
have been timely filed (after giving effect to any permitted extensions), and
all material taxes, fees and other governmental charges (other than those being
contested in good faith by appropriate proceedings diligently conducted and with
respect to which adequate accruals have been established and, in the case of ad
valorem taxes or betterment assessments, no proceedings to foreclose any lien
with respect thereto have been commenced and, in all other cases, no notice of
lien has been filed or other action taken to perfect or enforce such lien) shown
thereon which are payable have been paid. The charges and reserves on the books
of the Borrower for all income and other taxes are adequate, and the Borrower
knows of no additional assessment or any basis therefor. The Federal income tax
returns of the Borrower have not been audited within the last five years, all
prior audits have been closed, and there are no unpaid assessments, penalties or
other charges arising from such prior audits.
7.12 Environmental Matters.
(a) Borrower has obtained all Governmental Approvals that
are required for the operation of its business under any Environmental Law,
except where the failure to so obtain a Governmental Approval would not have a
Material Adverse Effect.
(b) Borrower is in compliance with all terms and
conditions of all required Governmental Approvals and is also in compliance with
all terms and conditions of all applicable Environmental Laws, except where the
failure to do so would not have a Material Adverse Effect.
(c) There is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter pending or, to the best knowledge of Borrower threatened
against Borrower relating in any way to the Environmental Laws which could have
a Material Adverse Effect, and there is no Lien of any private entity or
Governmental Authority against any Property, which Lien could have a Material
Adverse Effect, except for Permitted Liens.
(d) There has been no claim, complaint, notice, or
request for information received by Borrower with respect to any site listed on
the National Priority List promulgated pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act ("CERCLA") 42 USC
Section 9601
-8-
et seq. or any state list of sites requiring investigation or cleanup with
respect to contamination by Hazardous Substances, which claim, complaint, notice
or request for information could have a Material Adverse Effect.
(e) To the best of the Borrower's knowledge, there has
been no release or threat of release of any Hazardous Substance at any real
property owned or leased by Borrower which would likely result in liability
being imposed upon Borrower which liability would have a Material Adverse
Effect.
7.13 Disclosure. None of the representations or warranties made by
Borrower in this Agreement, or in any other document furnished to the Bank by or
on behalf of Borrower in connection herewith contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements herein or therein, in light of the circumstances under which they are
made, not misleading. There is no fact known to Borrower on the date of this
Agreement which has any reasonable likelihood of having a Material Adverse
Effect which has not been set forth in or referred to in this Agreement.
SECTION 8. AFFIRMATIVE COVENANTS.
Except as otherwise permitted by the Bank, the Borrower and Core
Composites covenant and agree that for so long as this Agreement is in effect
and until the Notes, together with all interest thereon, and all other
Obligations of Borrower to the Bank, are paid or satisfied in full (for purposes
of this Section, each reference to "Borrower" shall also include and be deemed
to be a reference to Core Composites, such that all of the covenants set forth
in this Section shall be applicable to Borrower and to Core Composites):
8.1 Use of Proceeds. Core Molding shall use the proceeds of the
$9,000,000 Term Loan to repay the International Secured Note as provided in
Section 6(k). Core Molding may use proceeds from the Revolving Credit Loan for
general working capital purposes. Without limiting the foregoing, no part of the
proceeds from the Loans will be used for the purpose of purchasing or carrying
any "margin security" as such term is defined in Regulation U of the Board of
Governors of the Federal Reserve System.
8.2 Conduct of Business; Maintenance of Existence. The Borrower
will continue to: (a) engage in the business in which it is currently engaged;
and (b) maintain its existence and remain duly qualified as a corporation,
licensed and in good standing in each jurisdiction where such qualification or
licensing is required by the nature of its business, the character and location
of its property, business, or ownership or leasing of its property, except where
such noncompliance or failure to so qualify would not have a Material Adverse
Effect.
8.3 Compliance with Laws. The Borrower shall comply in all
material respects with all applicable laws, ordinances, rules, regulations and
requirements of Governmental Authorities and will obtain all Governmental
Approvals, except where the failure to do so would not have a Material Adverse
Effect.
8.4 Insurance.
(a) The Borrower will maintain insurance with financially
sound and reputable insurance companies in such amounts and with such
deductibles and against such risks as is customary and usually carried by owners
of similar businesses, properties and assets in the same general areas in which
the Borrower operates, provided that in any event the Borrower shall maintain or
cause to be maintained (a) insurance against casualty, loss or damage covering
all property and improvements of the Borrower in amounts and in respect of
perils usually carried by owners of similar businesses and
-9-
properties in the same general areas in which the Borrower operates; (b)
comprehensive general liability insurance against claims for bodily injury,
death or property damages; and (c) workers' compensation insurance to the extent
required by applicable law. In the case of policies referenced in clauses (a)
and (b) above, all such insurance shall (i) name the Borrower and the Bank as
loss payees and additional insureds as their interests may appear; (ii) provide
that no termination, cancellation or material reduction in the amount of or
material modification to the extent of coverage shall be effective until at
least 30 days after receipt by the Bank of notice thereof, and (iii) be
reasonably satisfactory in all other respects to the Bank.
(b) As long as no Default or Event of Default shall have
occurred and be continuing, the Bank shall return to the Borrower any insurance
proceeds it receives in payment of a claim filed by the Borrower.
8.5 Financial Statements, Etc. The Borrower will furnish to the
Bank:
(a) Within ninety-five (95) days after the last day of
each fiscal year, audited financial statements of Borrower, including a balance
sheet, statement of income, and statement of cash flows as of and for the year
then ended, prepared in accordance with GAAP consistently applied by the
Company's independent public accountants, together with copies of any management
letters provided by such accountants.
(b) Within fifty (50) days after the end of each fiscal
quarter and within ninety-five (95) days after the end of each fiscal year, a
Covenant Compliance Certificate signed by a Responsible Officer of Borrower.
(c) Within fifty (50) days after the end of each calendar
month, management prepared financial statements for the Borrower, including
balance sheets, statements of income, and statements of cash flow as of and for
the period then ended, prepared in accordance with GAAP consistently applied,
but with footnotes omitted.
(d) Promptly upon becoming aware of any litigation or
other proceeding against the Borrower that could reasonably be expected to have
a Material Adverse Effect, notice thereof.
(e) Promptly following the request of the Bank, such
further information concerning the business, affairs and financial condition or
operations of the Borrower as the Bank may reasonably request.
8.6 Notice of Default. As soon as practicable, and in any event,
within three (3) Banking Days of becoming aware of the existence of any
condition or event which constitutes a Default, the Borrower will provide the
Bank with written notice specifying the nature and period of existence thereof
and what action the Borrower is taking or proposes to take with respect thereto.
8.7 Environmental Matters. The Borrower shall comply with all
terms and conditions of all applicable Governmental Approvals and all applicable
Environmental Laws, except where failure to comply would not have a Material
Adverse Effect, and shall promptly notify the Bank of any violations thereof.
8.8 Taxes and Other Liens. The Borrower will pay when due all
taxes, assessments, governmental charges or levies, or claims for labor,
supplies, rent and other obligations made against it which, if unpaid, might
become a Lien against the Borrower or on any of its property, except liabilities
being contested in good faith and by proper proceedings, as to which adequate
accruals are maintained on
-10-
the books of Borrower in accordance with GAAP and except where failure to make
such payments when due would not have a Material Adverse Effect.
8.9 Inspection. The Borrower will permit a representative of the
Bank (including any field examiner or auditor retained by the Bank) to inspect
and make copies of the Borrower's books and records, and to discuss its affairs,
finances and accounts with its officers and accountants, at such reasonable
times and places and as often as the Bank may reasonably request.
8.10 Depository Requirements. The Borrower will open and maintain
all of its primary operating accounts, including cash management services, with
the Bank in form and substance reasonably acceptable to the Bank.
8.11 Further Assurances. The Borrower will execute and deliver to
the Bank any writings and do all things necessary, effectual or reasonably
requested by the Bank to carry into effect the provisions and intent of this
Agreement or any other Loan Documents.
SECTION 9. NEGATIVE COVENANTS.
Except as otherwise permitted by the Bank, the Borrower and Core
Composites covenant and agree that for so long as this Agreement is in effect
and until the Notes, together with all interest thereon, and all other
Obligations of Borrower to the Bank, are paid or satisfied in full (for purposes
of this Section, each reference to "Borrower" shall also include and be deemed
to be a reference to Core Composites, such that all of the covenants set forth
in this Section shall be applicable to Borrower and to Core Composites):
9.1 Consolidation, Merger or Acquisition. The Borrower shall not
merge or consolidate with or into any other Person, or make any acquisition of
the business or assets of any other Person, without first obtaining the Bank's
consent, which consent shall not be unreasonably withheld.
9.2 Disposition of Assets. The Borrower shall not convey, sell,
lease, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, accounts receivable and leasehold assets),
whether now owned or hereafter acquired, except (a) for equipment or other
assets sold, leased, assigned or otherwise disposed of in the ordinary course of
business, (b) for the sale of inventory in the ordinary course of business, or
(c) after first obtaining the Bank's consent, which consent shall not be
unreasonably withheld. It being understood that such consent shall be necessary
prior to the transfer of any Collateral or other assets to either of the Mexican
Subsidiaries; provided that periodic transfers of cash to the Mexican
Subsidiaries to cover payroll and other costs and expenses, including payroll,
shall not require the Bank's consent.
9.3 Indebtedness. The Borrower shall not create, incur, assume, or
suffer to exist after the Closing Date any Indebtedness, except the following:
(a) Indebtedness owed by the Borrower to the Bank;
(b) Indebtedness of the Borrower and Core Composites
secured by purchase money Liens permitted by Section 9.4(f) or treated as a
capitalized lease in accordance with GAAP, in an amount not to exceed $250,000
in any fiscal year;
(c) Indebtedness of the Borrower to International, as
reflected by the Unsecured International Note; and
-11-
(d) Indebtedness of Core Composites to Borrower as
permitted by Section 9.6(b).
9.4 Liens. Borrower shall not create, incur, assume or suffer to
exist any Lien on any of its properties or assets, except the following
(collectively, "PERMITTED LIENS"):
(a) Liens for taxes, fees, assessments and other
governmental charges not delinquent or being contested in good faith and by
proper proceedings as to which adequate accruals are maintained on the books of
Borrower in accordance with GAAP.
(b) Carrier's, warehousemen's, mechanics', materialmen's,
landlord's or similar liens imposed by law or incurred in the ordinary course of
business in respect of obligations not overdue, or being contested in good faith
and by proper proceedings and as to which adequate accruals with respect thereto
are maintained on the books of Borrower in accordance with GAAP.
(c) Pledges or deposits in connection with workers'
compensation, unemployment insurance and other types of social security
legislation.
(d) Security deposits made to secure the performance of
leases, licenses and statutory obligations incurred in the ordinary course of
business.
(e) Liens in favor of the Bank, of any Affiliate of the
Bank.
(f) Liens securing purchase money debt that does not
extend to any other property and is given at the time of acquisition of such
property.
9.5 Guaranties. Except for the Guaranty, the Borrower shall not
guarantee or otherwise be or become directly or contingently responsible or
otherwise liable for the Indebtedness or other obligations of any other Person.
9.6 Loans and Investments. The Borrower shall not make any loan or
advance to any Person or purchase or otherwise acquire any capital stock or
other ownership interest, assets, obligations or other securities of, make any
capital contribution to, or otherwise invest in, or acquire any interest in, any
Person, except the following:
(a) Loans or advances to Borrower's employees in the
ordinary course of business; and
(b) Additional loans or advances to Core Composites not
to exceed an aggregate principal balance outstanding at any point in time of
$1,500,000 .
9.7 Lines of Business. Borrower shall not alter the nature of the
Borrower's, and each of its Subsidiaries', business as operated on the date of
this Agreement in any material respect.
9.8 Subsidiaries. Except for Borrower's existing Subsidiaries
identified in Section 7.8, Borrower shall not create any Subsidiaries without
first obtaining the Bank's consent, which consent shall not be unreasonably
withheld.
SECTION 10. FINANCIAL COVENANTS.
The Borrower and Core Composites covenant and agree that so long as
this Agreement is in effect and until the Notes, together with all interest
thereon, and all other Obligations of Borrower to the
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Bank, are paid or satisfied in full (the financial ratios set forth in this
Section shall be determined on a consolidated basis):
10.1 Total Funded Obligations to EBITDAL Ratio. The Borrower shall
maintain a Total Funded Obligations to EBITDAL Ratio equal to or less than the
ratios set forth below as of the end of each applicable fiscal quarter set forth
below, to be tested on a rolling four quarters basis.
Ratio Fiscal Quarter(s)
----- -----------------
3.50 to 1.00 12/31/03 through 6/30/04
3.25 to 1.00 9/30/04
3.00 to 1.00 12/31/04 through 9/30/05
2.75 to 1.00 12/31/05 through 9/30/06
2.50 to 1.00 12/31/06 and thereafter
10.2 Minimum Fixed Charge Coverage Ratio. The Borrower shall
maintain a Minimum Fixed Charge Coverage Ratio of not less than 1.15 to 1.00 as
of December 31, 2003, and at the end of each fiscal quarter thereafter, to be
tested on a rolling four quarters basis.
10.3 Definition of Certain Terms. The terms set forth below shall
have the corresponding meanings set forth below:
TOTAL FUNDED OBLIGATIONS TO EBITDAL RATIO IS DEFINED AS:
Funded Debt + Discounted Present Value of the Future Lease Payment Stream
EBITDAL (Net Income + Interest Expense* + Tax Charges
+ Depreciation/Amortization +/- Extraordinary Losses/Gains - Interest
Income) + Rent/Lease Expenses
MINIMUM FIXED CHARGE COVERAGE RATIO IS DEFINED AS:
EBITDAL
Interest Expense* + PPLTD + Rent/Lease Expenses + Maintenance
Capital Expenditures + Taxes Paid in Cash
*Interest Expense excludes any accrued but unpaid interest on Subordinated Debt
"PPLTD" is defined as actual principal payments on Subordinated Debt, Funded
Debt and any other permitted Indebtedness; but excluding any principal payments
on the Revolving Credit Loan and also excluding all principal payments made by
Borrower on the International Secured Note.
"FUNDED DEBT" is defined as any Indebtedness of the Borrower for borrowed money,
including without limitation the Loans and any and all bonds, capital leases,
notes payable and drafts accepted representing extensions of credit, all
obligations evidenced by bonds, debentures, notes or other similar instruments,
and all obligation upon which interest charges are customarily paid, having a
scheduled maturity date beyond the expiration of Borrower's then current fiscal
year, excluding Subordinated Debt.
"MAINTENANCE CAPITAL EXPENDITURES" is defined as amounts expended for
maintenance, repair or replacement of equipment, machinery, fixed assets, real
property or improvements, and for purposes of
-13-
calculating the Minimum Fixed Charge Coverage Ratio is assumed to be $1,000,000
for any rolling four quarter period.
"FUTURE LEASE PAYMENT STREAM" is defined as the sum of all payments due under
all operating leases of Borrower (excluding operating leases for the "occupancy"
of leased premises) over the period(s) remaining to the maturity of those
leases.
"DISCOUNTED PRESENT VALUE" is defined as the Future Lease Payment Stream
discounted at the rate of 7.5% per annum.
"SUBORDINATED DEBT" shall mean Indebtedness and other liabilities of Borrower
which have been subordinated by written agreement to Indebtedness owed by
Borrower to Bank in form and substance acceptable to Bank.
SECTION 11. EVENTS OF DEFAULT
11.1 Events of Default. The occurrence of any of the following
events shall be an "EVENT OF DEFAULT" hereunder:
(a) The Borrower shall default in the due and punctual
payment of principal of any of the Loans or in the payment of interest on any of
the Loans or in the payment of any other amount due under any Loan Document,
which shall not be paid or otherwise cured within ten (10) days thereof; or
(b) Any representation, warranty or statement made herein
or in any other Loan Document, or in any certificate or statement furnished
pursuant to or in connection herewith or therewith, shall prove to be incorrect,
misleading or incomplete in any material respect on the date as of which made or
deemed made; or
(c) The Borrower or any of its subsidiaries shall default
in the performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to Sections 8, 9 and 10 hereof, provided,
however, with respect to a default under Sections 8 or 9, the Borrower and its
Subsidiaries shall have ten (10) days from receipt of notice of default from
Bank to cure such default; or
(d) The Borrower or Core Composites shall default in the
performance or observance of any term, covenant or agreement on its part to be
performed or observed pursuant to any of the provisions of this Agreement or any
other Loan Document (other than those referred to in paragraphs (a) through (c)
above) and such default shall continue unremedied for a period of thirty (30)
days after the occurrence of such default; or (e) Any obligation of the Borrower
or Core Composites in respect of any Indebtedness (other than the Notes and any
other Indebtedness owing to the Bank), which involves an aggregate amount in
excess of $100,000 shall be declared to be or shall become due and payable and
shall not be paid or otherwise cured within ten (10) days thereof; or
(f) Any obligation of the Borrower or Core Composites in
respect of any Indebtedness (other than the Notes) owing to the Bank shall be or
shall become due and payable and shall not be paid within ten (10) days thereof
or otherwise cured; or
(g) The Borrower or Core Composites shall (i) apply for
or consent to the appointment of, or the taking of possession by, a receiver,
custodian, trustee or liquidator of itself or of all
-14-
or a substantial part of its property, (ii) make a general assignment for the
benefit of its creditors, (iii) commence a voluntary case under the Bankruptcy
Code, (iv) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or
readjustment of debts, (v) fail to controvert in a timely and appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case under the Bankruptcy Code, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) A proceeding or case shall be commenced, without the
application or consent of the Borrower in any court of competent jurisdiction,
seeking (i) its liquidation, reorganization, dissolution or winding up, or the
composition or readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of Borrower or of all or any
substantial part of its assets, or (iii) similar relief in respect of the
Borrower under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts, and such proceeding or case
shall continue undismissed, or an order, judgment or decree approving or
ordering any of the foregoing shall be entered and continue unstayed and in
effect, for a period of 60 days; or an order for relief against the Borrower
shall be entered in an involuntary case under the Bankruptcy Code; or
(i) A judgment or judgments for the payment of money in
excess of $100,000 (net of insurance proceeds) in the aggregate shall be
rendered against the Borrower or Core Composites and any such judgment or
judgments shall not have been vacated, discharged, stayed or bonded pending
appeal within thirty (30) days from the entry thereof.
11.2 Remedies Upon an Event of Default. If any Event of Default
shall have occurred and be continuing the Bank may by notice (a) terminate its
commitment to make further Advances under the Loans and/or (b) declare the
principal amount then outstanding of, and the accrued interest on, the Loans and
commitment fees and all other amounts payable hereunder and under the Notes to
be forthwith due and payable, whereupon such amounts shall be and become
immediately due and payable, without further notice (including, without
limitation, notice of intent to accelerate), presentment, demand, protest or
other formalities of any kind, all of which are hereby expressly waived by the
Borrower; provided that in the case of the occurrence of an Event of Default as
referred to in clauses (g) and (h) of Section 11.1, the commitment to make
further advances under the Loans shall be automatically terminated and the
principal amount then outstanding of, and the accrued interest on, the Loans and
commitment fees and all other amounts payable hereunder and under the Notes
shall be and become automatically and immediately due and payable, without
notice (including, without limitation, notice of intent to accelerate),
presentment, demand, protest or other formalities of any kind, all of which are
hereby expressly waived by Borrower.
SECTION 12. GENERAL.
12.1 Amendments, etc. No amendment or waiver of any provision of
this Agreement or the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Bank and the Borrower, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given.
12.2 Notices, etc. Unless otherwise specified herein, all notices
hereunder to any party hereto shall be in writing and shall be deemed to have
been given when delivered by hand, or when sent by electronic facsimile
transmission or by telex, answer back received, or on the first Banking Day
after delivery to any overnight delivery service, freight pre-paid, or the date
of the execution of the return receipt if sent by pre-paid certified or
registered mail, and addressed to such party at its address indicated below; or
at any other address specified by such party in writing.
-15-
(a) If to Bank: KeyBank National Association
88 East Broad Street, 2nd Floor
Columbus, Ohio 43215
Attention: Roger D. Campbell, Senior
Vice President
Facsimile No.: (614) 460-3469
With a copy to: Thompson Hine LLP
10 West Broad Street, 7th Floor
Columbus, Ohio 43215
Attention: Boyd Moehring, Esq.
Facsimile No.: (614) 469-3361
If to the Borrower: Core Molding Technologies, Inc.
800 Manor Park Drive
Columbus, Ohio 43228
Attention: Herman F. Dick, Jr.
Facsimile No.: (614) 870-5051
With a copy to: Squire, Sanders & Dempsey L.L.P.
1300 Huntington Center
41 South High Street
Columbus, Ohio 43215
Attention: Kim L. Swanson, Esq.
Facsimile No.: (614) 365-2499
12.3 No Waiver; Remedies. No failure on the part of the Bank to
exercise, and no delay in exercising, any right hereunder, under the Notes or
under any of the other Loan Documents shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder, under the Notes or
under any of the other Loan Documents preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
12.4 Right of Set-off.
(a) Upon the occurrence and during the continuance of any
Event of Default, the Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by the Bank to or for the credit
or the account of the Borrower or Core Composites against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Notes, irrespective of whether or not the Bank shall have made any demand
hereunder.
(b) The Bank agrees promptly to notify the Borrower after
any such set-off and application; provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Bank under this Section 12.4 are in addition to other rights and remedies.
12.5 Indemnification. The Borrower and Core Composites agree to
indemnify the Bank and its respective officers and directors and hold the Bank
and its respective officers and directors harmless from and against any and all
liabilities, losses, damages, reasonable costs and expenses of any kind
-16-
(including, without limitation, the reasonable fees and disbursements of counsel
for the Bank in connection with any investigative, administrative or judicial
proceeding initiated by a third party, whether or not the Bank shall be
designated a party thereto) which may be incurred by the Bank, relating to or
arising out of this Agreement or, any other Loan Document, or the existence of
any Hazardous Substance on, in, or under any of Borrower's, or any of Core
Composites', properties, or any violation of any applicable Environmental Laws
for which the Borrower or Core Composites has any liability or which occurs upon
any of Borrower's, or any of Core Composites', properties, or the imposition of
any Lien under any Environmental Laws, provided that the Bank shall not have the
right to be indemnified hereunder for its own bad faith, gross negligence or
willful misconduct as finally determined by a court of competent jurisdiction.
The agreements and this Section 12.5 shall survive the repayment of the Notes
and all other amounts payable under this Agreement and the other Loan Documents
and for a period of two (2) years after the Loans have been repaid in full.
12.6 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns except that the Borrower may not assign its rights or obligations
hereunder or under the Notes without the prior written consent of the Bank,
which consent shall not be unreasonably withheld or delayed.
12.7 Severability. Any provision of this Agreement which is
prohibited, unenforceable or not authorized in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability or non-authorization without invalidating the remaining
provisions hereof or affecting the validity, enforceability or legality of such
provision in any other jurisdiction.
12.8 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio.
12.9 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. Borrower agrees and stipulates 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 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.
12.10 Survival. All warranties, representations, and covenants made
by the Borrower and its Subsidiaries 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 or on its behalf. All
statements in any such certificate or other instrument shall constitute
warranties and representations by the Borrower.
12.11 Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which taken
together shall constitute one and the same instrument.
12.12 Time is of the Essence. Time is of the essence relating to
this Agreement and with respect to all obligations to be performed under this
Agreement, but delay in the exercise by the Bank of its rights hereunder shall
not be deemed a waiver of such right by the Bank.
-17-
12.13 Captions. The captions at the beginning of the sections and
subsections of this Agreement are not part of the context of this Agreement, but
are only labels to assist in locating those sections and subsections, and shall
be ignored in construing this Agreement.
12.14 No Third Party Benefit. This Agreement is intended for the
exclusive benefit of the parties and their respective heirs, successors and
assigns. Nothing contained in this Agreement shall be construed as creating any
rights or benefits in or to any third party.
12.15 Complete Agreement. This Agreement, along with the Loan
Documents, contains the entire agreement among the parties and supersedes any
prior discussions, negotiations, representations, or agreements among them
respecting the subject matter.
12.16 Consent to Jurisdiction and Waiver of Objection to Venue. The
Borrower agrees that any legal action or proceeding with respect to this
Agreement or the Notes or the other Loan Documents or the transactions
contemplated hereby may be brought in the Court of Common Pleas of Franklin
County, Ohio, or in the United States District Court for the Southern District
of Ohio, Eastern Division, and the Borrower hereby irrevocably submits to and
accepts generally and unconditionally the jurisdiction of those courts with
respect to their person, property and revenues and irrevocably consent to
service of process in any such action or proceeding by the mailing thereof by
U.S. mail to the Borrower at the Borrower's address set forth in Section 12.2
hereof.
The Borrower hereby irrevocably waives any objection to the laying of
venue of any such suit or proceeding in the above described courts, and
unconditionally waives and agrees not to plead or claim that any such suit or
proceeding brought in any such court has been brought in an inconvenient forum,
provided, that this provision shall not preclude Borrower from seeking to
consolidate actions brought against it. Nothing in this paragraph shall affect
the right of the Bank to serve process in any other manner permitted by law or
limit the right of the Bank to bring any such action or proceeding against the
Borrower or to obtain execution on any judgment in any other jurisdiction or in
any other manner permitted by law.
12.17 WAIVER OF JURY TRIAL. THE PARTIES ACKNOWLEDGE THAT, AS TO ANY
AND ALL DISPUTES THAT MAY ARISE BETWEEN THE PARTIES, THE COMMERCIAL NATURE OF
THE TRANSACTION OUT OF WHICH THIS AGREEMENT ARISES WOULD MAKE ANY SUCH DISPUTE
UNSUITABLE FOR TRIAL BY JURY. ACCORDINGLY, EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY
ARISE RELATING TO THIS AGREEMENT OR TO ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS
EXECUTED IN CONNECTION HEREWITH.
[Signatures on Following Page]
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The parties hereto have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date
first above written.
KEYBANK NATIONAL ASSOCIATION
By: /s/ Roger D. Campbell
------------------------------------
Roger D. Campbell, Senior Vice President
CORE MOLDING TECHNOLGIES, INC.
By: /s/ Herman F. Dick, Jr.
------------------------------------
Herman F. Dick, Jr., Chief Financial Officer
[Loan Agreement Signature Page]
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APPENDIX A
DEFINITIONS
"ADVANCE" shall mean any loan, advance of funds, or extension
of credit under either of the Notes.
"AFFILIATE" of any Person shall mean any other Person directly
or indirectly controlling, controlled by or under common control with, such
Person. For purposes of this definition, the term "control" (including the
correlative meanings of the terms "controlling," "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities or by contract or otherwise, provided (but
without limiting the foregoing) that no right to exercise voting rights with
respect thereto shall by itself be deemed to constitute control over such
Person.
"BANKING DAY" shall mean any day, excluding Saturday and
Sunday and excluding any other day which in the State of Ohio is a legal holiday
or a day on which banking institutions are authorized by law to close.
"BORROWING NOTICE" shall have the meaning set forth in
Section 3.1(b).
"CLOSING DATE" shall mean the first date on which the
conditions set forth in Section 6 have been satisfied and the Loans are to be
made hereunder.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended, or any successor statute.
"COLLATERAL" shall have the meaning given that term in the
Security Agreement.
"CONTRACTUAL OBLIGATION" shall mean, as to any Person, any
agreement, instrument or other undertaking to which such Person is a party or by
which it or any of its property is bound.
"COVENANT COMPLIANCE CERTIFICATE" shall mean a certificate in
the form attached as Exhibit F, executed by a Responsible Officer.
"CORE COMPOSITES" shall mean Core Composites Corporation, a
Delaware corporation and wholly owned Subsidiary of Borrower.
"DEFAULT" shall mean any condition or event that constitutes
an Event of Default or that with the giving of notice or lapse of time or both
would, unless cured or waived, become an Event of Default.
"ENVIRONMENTAL LAWS" shall mean all federal, state, local and
foreign laws, and all regulations, notices or demand letters issued, promulgated
or entered thereunder, relating to pollution or protection of the environment
and to occupational health and safety, including, without limitation, laws
relating to emissions, discharges, releases or threatened releases of
pollutants, contaminants, chemicals, or Hazardous Substances into the
environment (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals or Hazardous
Substances.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, or any successor statutes.
"EVENT OF DEFAULT" shall have the meaning set forth in Section
11.
"EXISTING REVOLVING CREDIT LOAN" shall have the meaning set
forth in the first whereas clause.
"EXISTING REVOLVING LOAN AGREEMENT" shall have the meaning set
forth in the first whereas clause.
"GAAP" shall mean generally accepted accounting principals,
consistently applied.
"GOVERNMENTAL APPROVAL" shall mean all authorizations,
consents, approvals, licenses, and exemptions from, registrations and filings,
with, and reports to, all Governmental Authorities.
"GOVERNMENTAL AUTHORITY" shall mean the government of the
United States or any state or political subdivision thereof and any entity,
body, or authority exercising executive, legislative, judicial, regulatory, or
administrative functions of or pertaining to government.
"GUARANTY" shall mean the Guaranty from Core Composites to the
Bank in the form of Exhibit H attached hereto.
"HAZARDOUS SUBSTANCES" shall mean all hazardous and toxic
substances, wastes or materials, hydrocarbons (including naturally occurring or
man-made petroleum and hydrocarbons), flammable explosives, urea formaldehyde
insulation, radioactive materials, biological substances, PCBs, pesticides,
herbicides and any other kind and/or type of pollutants, or contaminates and/or
any other similar substances or materials which, because of toxic, flammable,
explosive, corrosive, reactive, radioactive or other properties that may be
hazardous to human health or the environment, are included under or regulated by
any Environmental Laws.
"INDEBTEDNESS" of any Person at any date shall mean (a) all
indebtedness of such Person for borrowed money (excluding current trade
liabilities incurred in the ordinary course of business and payable in
accordance with customary practices), or which is evidenced by a note, bond,
debenture or similar instrument, (b) all obligations of such Person under leases
that are treated as capitalized leases in accordance with GAAP, (c) all
obligations of such Person in respect of bankers acceptances issued or created
for the account of such Person, and all reimbursement obligations (contingent or
otherwise) of such Person in respect of any letters of credit issued for the
account of such Person to the extent not secured by cash and without duplication
of any underlying Indebtedness, (d) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof, (e) without duplication, all
guarantees of any Indebtedness and (f) all obligations of such Person in respect
of any balance deferred and unpaid of the purchase price of any property
(excluding any such balance that constitutes a current trade liability incurred
in the ordinary course of business and payable in accordance with customary
practices) if and to the extent the balance would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP.
"INTEREST RATE AGREEMENT" shall have the meaning set forth in
Section 3.8.
"INTERNATIONAL" shall mean International Truck & Engine
Corporation (f/k/a Navistar Corporation).
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"INTERNATIONAL SECURED NOTE" shall mean that certain Secured
Promissory Note dated December 31, 1996, as amended to date, from Borrower as
"payee" to International as "maker."
"LETTER OF CREDIT" shall have the meaning set forth in the
first whereas clause.
"LIEN" shall mean any mortgage, pledge, hypothecation,
assignment, deposit, arrangement, encumbrance, lien (statutory or other), or
preference, priority or other security agreement of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any lease that is capitalized in accordance with GAAP, and
the filing of a financing statement under the UCC or comparable law of any
jurisdiction), together with any renewal or extension thereof.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Revolving Credit Note, the $9,000,000 Term Note, the Security Agreement, the
Mortgages, the Guaranty, UCC-1 Financing Statements and all other agreements and
instruments that are from time to time executed in connection with this
Agreement, as each of such agreements and instruments may be amended, modified
or supplemented from time to time.
"LOANS" shall mean, collectively, the Revolving Credit Loan
and the $9,000,000 Term Loan.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect
on (a) the business, operations, property, condition (financial or otherwise) or
prospects of Borrower, or any Affiliate of any Borrower taken as a whole, (b)
the ability of Borrower to perform its obligations under this Agreement, the
Notes or any of the other Loan Documents or (c) the validity or enforceability
of this Agreement, the Notes or any of the other Loan Documents hereunder or
thereunder.
"MATURITY DATES" shall have the meaning set forth in the
Revolving Credit Note and the $9,000,000 Term Note, respectively.
"MEXICAN SUBSIDIARIES" shall have the meaning set forth in
Section 7.8.
"MORTGAGES" shall mean, collectively, the Ohio Mortgage and
the South Carolina Mortgage.
"NOTES" shall mean, collectively, the Revolving Credit Note
and the $9,000,000 Term Note.
"OBLIGATIONS" shall mean all obligations of Borrower to the
Bank of every kind and nature whether such obligations are now existing or
hereafter incurred or created, joint or several, direct or indirect, absolute or
contingent, due or to become due, matured or unmatured, liquidated or
unliquidated, arising by contract, operation of law or otherwise, including,
without limitation (a) all principal of and interest on any Advance to Borrower
under the Notes; (b) all other amounts (including, without limitation, any fees
or expenses) payable by Borrower under the Loan Documents; and (c) any renewals,
refinancings or extensions of any of the foregoing.
"OHIO MORTGAGE" shall have the meaning set forth in Section
5.2.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or
any entity succeeding to any or all of its functions under ERISA.
"PERMITTED LIENS" shall have the meaning set forth in Section
9.4.
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"PERSON" shall mean and include any individual, partnership,
corporation, business trust, firm, trust, limited liability company,
unincorporated association or organization, joint venture or other enterprise or
any governmental or political subdivision, agency, development or
instrumentality thereof.
"PLAN" means any employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and is either (a) maintained by Borrower for employees
of Borrower or (b) maintained pursuant to a collective bargaining agreement or
any other arrangement under which more than one employer makes contributions and
to which Borrower is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions.
"RESPONSIBLE OFFICER" shall mean Herman J. Dick, Jr.
"REVOLVING CREDIT LOAN" shall have the meaning set forth in
Section 3.1(a).
"REVOLVING CREDIT NOTE" shall have the meaning set forth in
Section 3.1(a).
"SECURITY AGREEMENT" shall have the meaning set forth in
Section 5.1.
"SECURITY DOCUMENTS" shall mean the Security Agreement, the
Mortgages and any related UCC financing statements.
"SOUTH CAROLINA MORTGAGE" shall have the meaning set forth in
Section 5.3.
"SUBSIDIARY" shall mean, with respect to any Person, any
corporation or other entity of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other Persons performing similar functions are at the time directly or
indirectly owned by such Persons.
"UCC" shall mean the Uniform Commercial Code as in effect on
the date hereof in the State of Ohio; provided that if by reason of mandatory
provisions of law, the perfection or the effect of perfection or non-perfection
of the security interests in any Collateral is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than the State of Ohio,
"UCC" shall mean the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such perfection,
or effect of perfection or non-perfection.
"$9,000,000 TERM LOAN" shall have the meaning set forth
in Section 3.2(a).
"$9,000,000 TERM NOTE" shall have the meaning set forth
in Section 3.2(a).
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