<PAGE>
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
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TABLE OF CONTENTS
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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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<PAGE>
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.
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(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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<PAGE>
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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<PAGE>
(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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<PAGE>
(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
