Exhibit 99.4
[LOGO] WHITNEY
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Loan Agreement dated April 9, 2003, by and among Laitram, L.L.C.,
Laitram Group, Inc., Intralox, Inc., Laitram Machinery, Inc.,
▇▇▇▇▇▇▇ Stair, Inc.,
Laitram Machine Shop, L.L.C., ▇▇▇▇▇▇▇ Properties, L.L.C.,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
Whitney National Bank, Hibernia National Bank and Bank One, NA
This Agreement is dated as of April 9, 2003, and is entered into by and
among Laitram, L.L.C., ("Laitram"), Laitram Group, Inc. ("Group"), Intralox,
Inc. ("Intralox"), Laitram Machinery, Inc. ("Machinery"), ▇▇▇▇▇▇▇ Stair, Inc.
("Stair"), Laitram Machine Shop, L.L.C. ("Shop"), ▇▇▇▇▇▇▇ Properties, L.L.C.
("Properties"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. ("▇▇▇▇▇▇▇") (Group, Intralox,
Machinery, Stair, Shop, Properties, and ▇▇▇▇▇▇▇ are hereinafter referred to as
"Guarantor," which term means individually, collectively, and interchangeably
any, each and/or all of them), Whitney National Bank ("Whitney"), in its
capacity as a Lender (as herein defined) and as Agent (as herein defined),
Hibernia National Bank ("Hibernia") and Bank One, NA ("Bank One"). For
convenience of reference, Laitram, Intralox, Machinery, Stair, Shop and
Properties may hereinafter sometime collectively be referred to as the
"Subsidiaries," and Whitney, Hibernia and Bank One may hereinafter sometimes
collectively be referred to as the "Lenders" and individually referred to as a
"Lender"; the term "Agent" shall mean Whitney National Bank in its capacity as
agent for the Lenders. This Agreement refers to all present and future loans
collectively as the "Loans", with each separate advance of funds being a "Loan".
A. THE LOAN OR LOANS. Provided Laitram performs all obligations in favor of
the Lenders contained in this Agreement and in any other agreement, whether now
existing or hereafter arising, the Lenders will make or have made:
A LINE OF CREDIT LOAN to Laitram in the total aggregate principal amount of
Forty Million and No/100 ($40,000,000.00) Dollars (the "Revolving Line of
Credit") maturing March 31, 2005. The Revolving Line of Credit is to be
evidenced by three commercial notes (together, the "Revolving Line of
Credit Notes") containing additional terms and conditions, including the
repayment schedule. The first note shall be payable to Whitney in the
amount of Twenty Million Eight Hundred Thousand and No/100 ($20,800,000.00)
Dollars, the second note shall be payable to Hibernia in the amount of Six
Million and No/100 ($6,000,000.00) Dollars, and the third note shall be
payable to Bank One in the amount of Thirteen Million Two Hundred Thousand
and No/100 ($13,200,000.00). Advances made pursuant to the Revolving Line
of Credit Notes shall bear interest at a rate per year, adjusted monthly
and payable monthly in arrears, based on the combined ratio of Bank Funded
Debt to Earnings Before Interest, Taxes, Depreciation and Amortization (the
"EBITDA Ratio") of Group and the Subsidiaries, as established by a
quarterly compliance certificate submitted to the Agent on a quarterly
basis, a copy of which form is attached hereto as Exhibit "A" and made part
hereof and which compliance certificate shall demonstrate compliance with
all of the financial covenants and ratios set forth in Section 5 of this
Agreement (the "Compliance Certificate"), which margin shall be adjusted
quarterly as follows: If the EBITDA Ratio is less than 3.25 but greater
than or equal to 2.90, then the interest rate per annum shall be equal to
the thirty (30) day LIBOR plus 175 basis points (1.75%); if the EBITDA
Ratio is less than 2.90 but greater than or equal to 2.15, then the
interest rate per annum shall be equal to the thirty (30) day LIBOR plus
150 basis points (1.50%); if the EBITDA Ratio is less than 2.15 but greater
than or equal to 1 .40, then the interest rate per annum shall be equal to
the thirty (30) day LIBOR plus 125 basis points (1.25%); and if the EBITDA
Ratio is less than 1.40, then the. interest rate shall be equal
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to the thirty (30) day LIBOR plus 100 basis points (1.00%). The term LIBOR
shall mean the London Interbank Offered Rate as set and published each day
by the British Bankers Association ("BBA") and in effect as of the last day
of each month as obtained by Agent from a wire that is sent through
Bloomberg, L.P., which rate is based on an average of the Interbank Offered
Rates for U.S. dollar deposits in the London Market based on quotes from
designated banks in the London Market. All interest shall be computed on
the basis of the actual number of days elapsed over a year composed of 360
days. Interest shall accrue from the date of each advance. The term "Bank
Funded Debt" shall mean all indebtedness for borrowed money of Group and
the Subsidiaries except for debt subordinated to all Lenders. The term
"Earnings Before Interest, Taxes, Depreciation and Amortization" shall mean
income before interest, taxes, depreciation and amortization expense.
Laitram shall pay to the Lenders in arrears on a quarterly basis,
commencing on July 1, 2003, for the quarter ending June 30, 2003, and
continuing through the maturity of the Revolving Line of Credit Loans, an
amount equal to one-quarter (.25%) percent of the unused portion of the
maximum amount available under the Revolving Line of Credit Notes. This fee
shall be payable within ten days following the end of each quarter and
shall be shared among the Lenders based on their respective interests in
the Revolving Line of Credit Loan.
For convenience of reference, the Revolving Line of Credit Notes shall be
hereinafter sometimes collectively referred to as the "Notes".
B. USE OF PROCEEDS. The proceeds from the Revolving Line of Credit are to
refinance existing debt, for capital expenditures, and for general corporate
purposes.
C. REPRESENTATIONS, WARRANTIES AND COVENANTS. Laitram represents, warrants and
covenants to the Lenders that:
(1) Organization and Authorization. Each of Laitram and the Guarantors
(other than an individual) is a Louisiana limited liability company or
corporation that is duly organized, validly existing and in good
standing under Louisiana law. Each of Laitram and Guarantors'
execution, delivery and performance of this Agreement and all other
documents delivered to the Lenders has been duly authorized and does
not violate the articles of organization or the articles of
incorporation of any of Laitram or the Guarantors (or other governing
documents), material contracts or any applicable law or regulations.
(2) Guaranties.
Each of the Revolving Line of Credit facilities shall be guarantied by
each of the Guarantors, provided however, that each of the guarantees
shall be limited to $40,000,000.00 (the "Guaranties").
(3) Compliance with Tax and other Laws.
(a) Laitram shall comply with all laws that are applicable to its
business activities, including, without limitation, all laws
regarding (i) the collection, payment and deposit of employees'
income, unemployment, Social Security, sales and excise taxes;
(ii) the filing of returns and payment of taxes; (iii) pension
liabilities including ERISA requirements; (iv) environmental
protection, and (iv) occupational safety and health.
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(b) Laitram shall not permit or suffer any violation of any
Environmental Law (as defined below) affecting the property it
owns or leases, including all property owned by ▇▇▇▇▇▇▇
Properties, L.L.C. (the "Property"), and agrees that upon
discovery, or in the event, of any discharge, spill, injection,
escape, emission, disposal, leak or any other release of
hazardous substances on, in, under, onto or from the Property,
which is not authorized by a currently valid permit or other
approval issued by the appropriate governmental agencies,
promptly notify the Lenders and Agent, and the appropriate
governmental agencies, and shall take all steps necessary to
promptly clean-up such discharge, spill, injection, escape,
emission, disposal, leak or any other release in accordance with
the provisions of all applicable Environmental Laws, and shall
receive a certification from the Louisiana Department of
Environmental Quality or federal Environmental Protection Agency,
that the Property and any other property affected has been
cleaned-up to the satisfaction of those agencies. The terms
"Environmental Law" or "Environmental Laws" as used in this
Agreement include any and all current and future federal, state
and local environmental laws, statutes, rules, regulations and
ordinances, as the same shall be amended and modified from time
to time, including but not limited to the federal Comprehensive
Environmental Response, Compensation and Liability Act, as
amended from time to time, the Federal Resource Conservation and
Recovery Act, as amended from time to time, and the federal Toxic
Substances Control Act, as amended from time to time.
(c) There is no material pending or threatened litigation against
Laitram that could adversely affect Laitram business or assets.
(4) Financial Information. From the date of this Agreement and so long as
the Loans shall be outstanding, unless compliance shall have been
waived in writing by the Lenders and the Agent, Laitram shall furnish
to the Agent:
(a) within 90 days after the close of Laitram's fiscal year, a copy
of the audited and unqualified annual consolidated financial
statements of Group and the Subsidiaries, including consolidating
schedules for Laitram and Properties, prepared in conformity with
generally accepted accounting principles applied on a basis
consistent with that of the preceding fiscal year, including a
balance sheet as of the end of each such fiscal year, a statement
of earnings and surplus of Laitram for such fiscal year, and a
statement of changes in financial positions for such fiscal year.
The annual financial statements of Group and the Subsidiaries
shall be audited by an independent certified public accounting
firm chosen by Laitram and acceptable to the Agent: and
(b) within 45 days after the close of each quarter of the fiscal year
of Laitram (x) unaudited financial statements consisting of a
balance sheet as of the end of each such quarter and a statement
of earnings and surplus of Group and the Subsidiaries, (y)
statement of changes in financial position for such quarter, all
certified by the Chief Financial Officer for Group, and (z) the
Compliance Certificate.
(c) annual financial statements of ▇▇▇▇▇▇▇.
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(5) Financial Covenants and Ratios.
(a) (i) Bank Funded Debt/EBITDA. Laitram will not at any time
permit the ratio of Bank Funded Debt, as defined in Section
A of this Agreement, to EBITDA of Group and the
Subsidiaries to exceed 3.25 to 1.00, which ratio shall be
calculated on a rolling four quarter basis. "Bank Funded
Debt" shall be as defined in Section A of this Agreement.
(ii) Minimum Cash Flow to Debt Service Ratio. Laitram will
maintain a ratio of cash flow of Group and the Subsidiaries
to scheduled principal payments plus all accrued interest
payments on funded debt of Group and the Subsidiaries of
not less than 1.50 to 1 as of the end of each fiscal period
in which Laitram is obligated to provide Lender a financial
statement as measured on a rolling 12-month basis. For the
purposes of this section, "cash flow" shall mean the sum of
net income after taxes, plus depreciation and amortization
expenses, plus interest expense for the period.
(iii) Maximum Debt to Tangible Net Worth. Laitram will maintain a
ratio of debt to tangible net worth of not more than 1.60
to 1.00. For purposes of this section, "debt" shall mean
all liabilities reflected on the balance sheet of Group and
the Subsidiaries according to GAAP less any debt
specifically subordinated to Lenders as evidenced by a
properly executed agreement using Lenders' forms. "Tangible
net worth" shall mean the sum of common stock, preferred
stock, capital surplus, accumulated comprehensive income,
and retained earnings less treasury stock and the sum of
all intangible assets (including, without limitation, good
will, franchises, licenses, patents, trademarks, trade
names, copyrights, service marks and brand names) of Group
and the Subsidiaries.
(iv) Minimum Current Ratio. Laitram will maintain a ratio of
current assets of Group and the Subsidiaries to current
liabilities of Group and the Subsidiaries of not less than
1.40 to 1.00. For purposes of this section "current assets"
and "current liabilities" shall have the meaning assigned
to such terms under GAAP.
(6) Mergers, etc. Group is the parent of Laitram, the surviving entity of
a merger of The Laitram Corporation ("New Laitram"), a Louisiana
corporation that was incorporated on September 6, 2002, under the name
Laitram Newco, Inc., which merger was effective December 31, 2002. New
Laitram was the surviving entity of a merger of The Laitram
Corporation ("Old Laitram"), a Louisiana corporation that was
incorporated on October 31, 1963, with and into Laitram Newco, Inc.,
which merger was effective September 30, 2002. Laitram is the
successor to, and has assumed, all rights, duties, and obligations of
New Laitram, which was the successor to and had assumed all rights,
duties and obligations of Old Laitram. Without the prior written
consent of the Lenders and Agent, Laitram and/or Group shall not
consolidate with, or merge into, any other corporation, or permit any
other corporation to merge into it, or sell or lease all, or
substantially all, of its assets, or acquire all or a substantial part
of the assets or capital stock of any other partnership, firm or
corporation, if such acquisition is analogous in either purpose or
effect to a consolidation or merger. Laitram will not permit any
material changes to be made in the character of its business as
carried on at the original date of this Agreement.
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(7) Stock Redemption. Laitram will not purchase, retire or redeem any
shares of its capital stock in excess of $6,000,000.00 from the date
of this Agreement without the prior written consent of the Lenders.
(8) Distributions. Except for Input/Output, Inc. shares distributed during
March 2003, Laitram will not make distributions of any kind in excess
of fifty (50%) percent of its net income less the amount distributed
to pay income taxes, and further provided that any such distributions
shall be made no later than six months after Laitram's fiscal year
end.
(9) Liens. Laitram shall not mortgage or encumber any of its assets or
suffer any liens to exist on any of its assets except as permitted in
the Equitable Agreement (as defined herein).
(10) Other Liabilities. Laitram shall not lend to or guarantee, endorse or
otherwise become contingently liable in connection with the
obligations, stock or dividends of any person, firm or corporations
except for subsidiaries of Laitram, as permitted pursuant to the
Equitable Agreement, and except as currently exist and as reflected in
the financial statements of Laitram as previously submitted to the
Lenders, or either of them.
(11) Additional Documentation. Upon the written request of the Lenders, or
either of them, Laitram shall promptly and duly execute and deliver
all such further instruments and documents and take such further
action as the Lenders, or either of them, may deem necessary to obtain
the full benefits of this Agreement and of the rights and powers
granted in this Agreement.
(12) Notice of Default. Laitram shall notify the Lenders and Agent
immediately upon becoming aware of the occurrence of any event
constituting, or which with the passage of time or the giving of
notice, could constitute, a Default.
D. THE AGENT.
(1) Actions. Each Lender authorizes the Agent to act on behalf of such
Lender under this Agreement, the Notes, and the Guarantees
(collectively, the "Collateral Documents") and any other related
instruments and, in the absence of other written instructions from the
Lenders received from time to time by the Agent (with respect to which
the Agent agrees that it will, subject to the last two sentences of
this Section D(1), comply in good faith except as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms hereof
and thereof, together with such powers as may be reasonably incidental
thereto. Notwithstanding the above, the Agent shall not waive a
Default, declare Laitram to be in default or otherwise enforce any of
its rights under this Agreement or the Guarantees without the prior
written consent of Lenders having a prorata share of the aggregate
indebtedness then due under the Revolving Line of Credit and the Euro
Line (as defined herein) (the "Loans") equal to or in excess of
seventy (70%) percent, or amend this Agreement or any of the
Collateral Documents without the prior written consent of each Lender.
Each Lender agrees (which
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agreement shall survive any termination of this Agreement) to
indemnify the Agent, pro rata according to such Lender's portion of
the Loans from and against any and all liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever which may at any time
be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of this Agreement, the Collateral Documents
and any other related instruments, including, without limitation, the
reimbursement of the Agent for all reasonable out-of-pocket expenses
(including, without limitation, attorneys' fees) incurred by the Agent
hereunder or in connection herewith or in enforcing the obligations of
Laitram and/or the Guarantors under this Agreement, under any of the
Collateral Documents or any other related instruments, in all cases as
to which the Agent is not reimbursed by Laitram and/or the Guarantors,
or any of them; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
determined by a court of proper jurisdiction in a final proceeding to
have resulted solely from the Agent's gross negligence or willful
misconduct, The Agent shall not be required to take any action
hereunder or under any other related instruments, or to prosecute or
defend any suit in respect of this Agreement or any such instrument
unless indemnified to its satisfaction by the Lenders against costs,
liability, and expense. Each Lender's obligation to indemnify the
Agent as set forth above shall be unconditional under any and all
circumstances and irrespective of any set off, counterclaim or defense
to payment which such Lender may have or have had against the Agent,
Laitram, the Guarantors or any other Person. If any indemnity in favor
of the Agent shall become impaired, the Agent may call for additional
indemnity and cease to do the acts indemnified against until such
additional indemnity is given. The Agent may delegate its duties
hereunder to affiliates, agents or attorneys-in-fact selected in good
faith by the Agent.
(2) Sharing of Collections. Except as otherwise set forth herein, the
Lenders shall share all Collections (as defined herein) in accordance
with their respective pro rata share of each Lender's portion of each
of the Loans, and such moneys or other property shall be received by
the Lenders for the benefit of each of the Lenders, and shall be
remitted by the Lender promptly to the other Lender. For purposes of
this section, "Collections" shall mean all moneys and other property
received by any of the Lenders, but not including payments of
principal or interest made pursuant to the Notes (provided that no
Default, as defined in this Agreement then exists), from whatever
source derived, including all moneys and other property realized from
any collateral of Laitram and/or any of the Guarantors except ▇▇▇▇▇▇▇
Properties, L.L.C. and Laitram Group, Inc., or from the exercise by
Agent and/or the Lenders, or either of them, of any lien or right of
set-off with respect to any deposits or other property of any of
Laitram and/or the Guarantors.
(3) Payments. All payments of principal and interest made pursuant to each
of the Notes, which are not made to the Lenders directly, shall be
remitted by Agent to the Lenders by wire transfer in immediately
available funds, not later than 2:00 p.m., Central Standard time, on
the date such payment is received, or in such other manner as the
Lenders and Agent may approve.
(4) Separate Debts and Accounts. Agent and the Lenders may have previously
extended and may hereafter extend credit other than the Loans to
Laitram and/or the Guarantors and may have previously conducted and
may hereafter conduct
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other banking business in connection with such other extensions of
credit and other banking business. Neither Agent nor the Lenders shall
be required to exercise any right of set-off against Laitram and/or
any of the Guarantors or to exercise any lien or security rights with
respect to collateral other than the collateral. Agent and the Lenders
may independently collect for their separate accounts (and the term
"Collections" shall not include any sum of money or other property
received from any of Laitram and/or the Guarantors in payment of a
separate debt or realized from collateral for such separate debt, or
set-off in connection with a separate debt of any of Laitram and/or
the Guarantors); provided however, that neither the Agent nor the
Lenders shall satisfy or set off any separate debt of any of Laitram
and/or the Guarantors from or against any collateral. For purposes of
this section, "collateral" shall mean all real property and personal
property, tangible and intangible, now or hereafter securing the Loans
or any portion thereof, and all other instruments, documents, security
interests, liens, claims, endorsements and guaranties of whatever
nature now or hereafter securing the Loans or any portion thereof.
(5) Exculpation. The Agent shall have no duties or responsibilities except
those expressly set forth in this Agreement. Neither the Agent nor any
of its directors, officers, employees, or agents (collectively, the
"Related Parties") shall be liable to any Lender for any action taken
or omitted to be taken by it under this Agreement, the Collateral
Documents or any other related instrument, or in connection herewith
or therewith, except for its own willful misconduct or gross
negligence, nor shall the Agent be responsible for any recitals or
representations or warranties herein or therein, or for the
effectiveness, enforceability, validity, or due execution of this
Agreement, the Collateral Documents or any other related instruments,
nor shall the Agent be obligated to make any inquiry respecting the
performance by Laitram and/or the Guarantors, or any of them, of their
obligations hereunder or thereunder. The Agent shall be entitled to
rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which it believes
to be genuine and to have been presented by a proper person. The Agent
may at any time request instructions from the Lenders with respect to
any actions or approvals which, by the terms of this Agreement, the
Agent is permitted or required to take or grant, and the Agent shall
be absolutely entitled to refrain from taking any action or to
withhold any approval and shall not be under any liability whatsoever
to any person for refraining from taking any action or withholding any
approval under this Agreement or any of the other Collateral Documents
until it has received instructions from all of the Lenders. No Lender
shall have any right of action whatsoever against the Agent as a
result of the Agent acting or refraining from acting hereunder or
under any of the other Collateral Documents in accordance with
instructions from all of the Lenders to the extent required hereunder.
(6) Successor. The Agent may resign as such at any time upon at least ten
days' prior notice to all of the parties to this Agreement. If the
Agent at any time shall resign or be removed, the Lenders may appoint
another Lender as a successor Agent, provided that such appointment
shall have the unanimous consent of the Lenders. If the Lenders do not
make such appointment within thirty days, the resigning or removed
Agent shall appoint a new Agent from among the Lenders or, if no
Lender accepts such appointment, from among commercial banking
institutions or trust institutions generally. Upon the acceptance of
any appointment as Agent by a successor Agent, such successor Agent
shall thereupon become the Agent hereunder and shall be entitled to
receive from the prior Agent such documents of transfer and assignment
as such successor Agent
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may reasonably request, and the resigning or removed Agent shall (i)
be discharged from its duties and obligations under this Agreement and
the other related instruments and (ii) entitled to the continued
benefit of this section with respect to all actions taken by it prior
to its removal or resignation.
(7) Credit Decisions. Each Lender represents and acknowledges to the Agent
and each other Lender that it has, independently of the Agent and each
other lender, and based on the financial information referred to in
this Agreement and the Collateral Documents and such other documents,
information and investigations as it has deemed appropriate, made its
own credit decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently of the Agent and each Lender,
and based on such documents, information and investigations as it
shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any
rights and privileges available to it under this Agreement, the
Collateral Documents or any other related instruments.
(8) Notices, etc. from Agent. The Agent shall give prompt notice to each
Lender of each notice or request given to the Agent by Laitram and the
Guarantors, or any of them, pursuant to the terms of this Agreement.
The Agent will distribute to each Lender each instrument received by
the Agent from any of Laitram and the Guarantors for distribution to
the Lenders by the Agent in accordance with the terms of this
Agreement.
(9) Collateral Documents. Each Lender and the Agent hereby (i) authorize
the Agent to enter into the Collateral Documents and to take all
action contemplated thereby and (ii) confirm its appointment of
Whitney as Agent under the terms and conditions of the Collateral
Documents. Each Lender hereby confirms its agreement to be bound by
the terms and conditions of the Collateral Documents. Each Lender and
the Agent agree that no Lender shall have any right individually to
seek to realize upon the collateral granted for the benefit of the
Lenders pursuant to any of the Collateral Documents, it being
understood and agreed that such rights and remedies may be exercised
by the Agent as the Agent for the benefit of the Agent and the Lenders
upon the terms of the Collateral Documents. If Agent acquires any of
the collateral through foreclosure, deed in lieu of foreclosure or
otherwise, the Lenders shall each own an undivided interest in such
collateral in proportion to the their respective amounts of
indebtedness outstanding on the Loan or Loans secured by such
collateral, and the Agent may take such actions as it deems advisable
to operate, manage, preserve and dispose of the collateral.
(10) Loans by the Agent. The Agent shall have the same rights and powers
with respect to the Loans made by it as any Lender and may exercise
the same as if it were not the Agent hereunder.
(11) Other Collateral Matters. Each Lender hereby agrees, and each holder
of any Loans by the acceptance thereof will be deemed to agree, that,
except as otherwise set forth herein, any action taken by the Agent in
accordance with the provisions of this Agreement or the Collateral
Documents, and the exercise by the Agent or the Lenders of the powers
set forth herein or therein, together with
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such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Lenders. The Agent is hereby
authorized on behalf of all of the Lenders, without the necessity of
any notice to or further consent from any Lender, from time to time
prior to a Default, to take any action with respect to any collateral
or Collateral Documents which may be necessary to perfect and maintain
perfected the security interest in and liens on the collateral granted
pursuant to the Collateral Documents. Without limited the foregoing,
the Lenders irrevocably authorize the Agent at its option and in its
discretion, to release any lien granted to or held by the Agent upon
any collateral (i) consisting of an instrument evidencing debt if the
debt evidence thereby has been paid in full; or (ii) if approved by
the Lenders. Upon request by the Agent at any time, the Lenders will
confirm in writing the Agent's authority to release particular types
or items of collateral pursuant to this section.
(12) Rights of Substitution. If a Lender shall fail to remit its portion of
any advance required to be made under the terms of this Agreement, the
other Lender may, at its option and in its sole discretion (but shall
not be obligated to do so), advance such funds as may be necessary to
provide for the payment in full of such advance request then due but
unpaid, but without thereby relieving such Lender of its obligation to
make such remittance to Laitram. A Lender shall, to the full extent of
any such advance made by it, at its sole option, succeed to the
interest of the other Lender with respect thereto in which case the
Lender's line of credit commitment shall be automatically adjusted to
reflect such additional advance by the other Lender, until such amount
is remitted by such Lender to Laitram.
E. PREPAYMENT. Any of the Loans may be prepaid in any amount at any time
without penalty.
F. EACH EXTENSION OF CREDIT. Each request by Laitram for a Loan shall
constitute a warranty and representation by Laitram to the Lenders and Agent
that there exists no Default or any condition, event or act which constitutes,
or with notice or lapse of time (or both) would constitute a Default as defined
by this Agreement.
G. CONDITIONS PRECEDENT TO LOAN. The Lenders shall have no obligation to
advance funds under this Agreement until and unless the following conditions
have been satisfied:
(1) Agent shall have received the loan agreement and all collateral
documents contemplated by this Agreement in form and substance
satisfactory to the Lenders and Agent;
(2) Agent shall have received satisfactory opinions of counsel relating,
among other things, to due authorization and enforceability of this
Agreement, the Loans and all collateral documents and the perfection
and priority of the Lenders' security interests in all collateral;
(3) All representations and warranties made by Laitram and each of the
Guarantors to the Lenders and Agent shall be true and correct as of
the date of the Loans' funding;
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(4) Except as otherwise provided herein, Laitram's business must be in a
condition satisfactory to Agent, the management and ownership of
Laitram must not have changed and no material adverse change (from
that reflected in the last financial statements delivered to, and
accepted by, Agent prior to execution of this Agreement) has occurred
in the financial condition of Laitram; and
(5) There exists no Default (or event which with notice or lapse of time
or both could constitute a Default) under this Agreement or any other
agreement between Laitram and the Lenders or either of them.
H. DEFAULT. The occurrence of any one or more of the following events shall
constitute a default (a "Default") under this Agreement:
(1) A default under any of the Notes or any note evidencing a Loan;
(2) The failure of Laitram to observe or perform promptly when due any
covenant, agreement or obligation due to the Lenders, or any of them,
under this Agreement or otherwise;
(3) The inaccuracy at any time, in any material respect, of any warranty,
representation or statement made to the Lenders by Laitram under this
Agreement or otherwise;
(4) Any garnishment, seizure, or attachment of, or any tax lien or tax
levy against, any assets of Laitram and/or the Subsidiaries;
(5) Any material adverse change in Laitram's and/or the Subsidiaries'
financial condition, business, or ability to pay or perform its
obligations to the Lenders, or either of them;
(6) the filing by or against Laitram and/or the Subsidiaries of a
proceeding for bankruptcy, reorganization, arrangement, or any other
relief afforded debtors or affecting the rights of creditors generally
under the law of any state or country or under the United States
Bankruptcy Code;
(7) should any default occur under that certain Note Purchase Agreement
dated as of April 15, 1994, between Laitram (successor by merger to
The Laitram Corporation) and Equitable Variable Life Insurance
Company, as amended by Amendment to Note Purchase Agreement dated as
of April 21, 1996, as further amended by Letter Agreement dated April
9, 1998, as further amended by Letter Agreement dated May 11, 1999,
and as further amended from time to time (the "Equitable Agreement")
or any other material credit agreement or evidence of indebtedness;
(8) should any default occur under that certain Loan Agreement dated May
7, 1998, by and among ▇▇▇▇▇▇▇ Properties, L.L.C., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇., Whitney
10
National Bank, and Hibernia National Bank and as may be amended,
renewed, restated, or replaced from time to time (the "▇▇▇▇▇▇▇
Properties Loan Agreement"); or
(9) should any default occur under that Second Amended and Restated Line
of Credit Note dated May 27, 1999, payable to Hibernia executed by
lntralox, Inc. d/b/a lntralox, Inc. Europe, in the amount of Eight
Million and No/100 ($8,000,000.00) Dollars, as such line of credit
note may be amended, renewed, restated or replaced from time to time
(the "Euro Line").
Upon the occurrence of a Default and such Default continues for a period of
fifteen (15) days (five (5) days for payment default under the Loans) after
Agent has mailed written notice of such default to Laitram specifying the
nature of the Default and the steps necessary to cure the Default (but with
no notice required in the event of a Default under paragraphs (4) and (6)
of Section H), Agent, at its option, may declare all of the Loans and all
other obligations of Laitram to the Lenders, or either of them, to be
immediately due and payable.
I. MISCELLANEOUS PROVISIONS. Laitram agrees to pay all of the costs, expenses
and fees incurred in connection with the Loans, including attorneys' fees,
appraisal fees, and environmental assessment fees. This Agreement is not
assignable by Laitram and no party other than Laitram is entitled to rely on
this Agreement. In no event shall Laitram or the Lenders be liable to the other
for indirect, special or consequential damages, including the loss of
anticipated profits that may arise out of or are in any way connected with the
issuance of this Agreement. No condition or other term of this Agreement may be
waived or modified except by a writing signed by the parties hereto. This
Agreement, all promissory notes evidencing Loans under this Agreement and all
documents creating security interests shall be governed by Louisiana law.
OTHER CONDITIONS. Laitram shall pay to Lenders a non-refundable commitment fee
equal to 10 basis points (.10%) on $5,000,000.00, representing the increase in
the Revolving Line of Credit, which commitment fee shall be payable at the time
of closing and shall be shared among the Lenders based on their respective
percentage interests in the Revolving Line of Credit.
11
LAITRAM: GUARANTORS:
LAITRAM, L.L.C. LAITRAM GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------- --------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: President Its: President
INTRALOX, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
LENDERS: Its: President
WHITNEY NATIONAL BANK LAITRAM MACHINERY, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------- --------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: Vice President Its: Director
HIBERNIA NATIONAL BANK ▇▇▇▇▇▇▇ STAIR, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------- --------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: Banking Officer Its: Director
LAITRAM MACHINE SHOP, L.L.C.
BANK ONE, NA
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------- Its: Manager
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Its: First Vice President
▇▇▇▇▇▇▇ PROPERTIES, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Its: Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
--------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Individually
▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
$20,800,000.00 Apri1 9, 2003
For value received, the undersigned maker(s) (hereinafter referred to as
"Borrower", which term means individually, collectively, and interchangeably
any, each and/or all of them) promises to pay to the order of WHITNEY NATIONAL
BANK ("Bank") at its office where borrowed, the sum of TWENTY MILLION EIGHT
HUNDRED THOUSAND AND NO/100 DOLLARS together with interest thereon, in
accordance with the terms set forth in this Commercial Note ("Note"). The
optional provisions applicable to this Note are checked below.
REPAYMENT: The principal amount set forth above, or the principal amount
then outstanding of advances that Bank makes hereunder to
Borrower, whichever amount is less, shall be payable on MARCH
31, 2005, and interest shall be payable monthly in arrears.
Monthly interest payments shall commence on April 30, 2003, and
shall be payable on the last day of each month thereafter. Bank
may, in its sole discretion, make advances upon the written,
telephonic or facsimile request of Borrower, and Bank is
authorized to rely conclusively upon such requests when
received from a person purporting to be Borrower or Borrower's
authorized officer or representative. Nothing in this Note
shall be construed to establish an obligation on the part of
Bank to make an advance under this Note. The terms and
conditions of the Loan Agreement dated April 9, 2003, by and
among Whitney National Bank, Hibernia National Bank, Bank One,
NA, Laitram, L.L.C., Laitram Group, Inc., Intralox, Inc.,
Laitram Machinery, Inc., ▇▇▇▇▇▇▇ Stair, Inc., Laitram Machine
Shop, L.L.C., ▇▇▇▇▇▇▇ Properties, L.L.C., and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇., guarantors, as may be amended from time to time (the "Loan
Agreement") are incorporated herein by reference and are a part
of the terms and conditions of this Note.
INTEREST: Interest shall accrue on the outstanding principal amount at
the rate established in accordance with the Loan Agreement. All
interest shall be computed on the basis of the actual number of
days elapsed over a year composed of 360 days. Interest shall
accrue from date of advance.
Each party to this Note (including each maker and endorser) and each surety and
guarantor of this Note bound under separate instrument or agreement (hereinafter
referred to as "Obligor", which term means individually, collectively, and
interchangeably any, each and/or all of them) waives presentment for payment,
demand, notice of dishonor, protest, pleas of discussion and division and is
bound jointly, severally and solidarily for the full and timely payment of this
Note in accordance with its terms. To secure the indebtedness evidenced by this
Note, including, without limitation, future advances, with interest, attorneys'
fees, expenses of collection and costs, Obligor pledges, pawns and delivers to
Bank, and grants to Bank a continuing security interest in, and a right of
set-off and compensation against, all property of Obligor or in which Obligor
has an interest that is now or hereafter on deposit with, in the possession of,
under the control of or held by Bank, including, without limitation, all cash,
deposit accounts, funds on deposit, stocks, bonds, treasury obligations and
other securities, investment property, financial assets, securities accounts,
notes, documents, instruments, certificates of deposit, items, chattel paper,
and other property (except ▇▇▇, pension, and other tax-deferred retirement
accounts), together with all property added to or substituted for any of the
foregoing, and all interest, dividends, income, fruits, accessions and proceeds
of any of the foregoing. If the proceeds of collateral for this Note are
insufficient to pay this Note in full, Obligor shall remain fully obligated for
any deficiency. The terms "chattel paper," "deposit accounts," "documents,"
"items," "instruments," "investment property," "securities accounts," "financial
assets" and "proceeds" shall have the meaning provided in the Louisiana
Commercial Laws. Obligor releases Bank from any obligation to collect any
proceeds of or preserve any of Obligor's rights, including, without limitation,
rights against prior parties, in any collateral in which Bank possesses a
security interest. Any responsibility of Bank with respect to any collateral in
which Bank possesses a security interest, whether arising contractually or as a
matter of law, is hereby expressly waived. If an earlier note of Borrower is
canceled at the time of execution hereof, then this Note constitutes an
extension, but not a novation, of the amount of the continuing indebtedness, and
all security rights held by Bank under the earlier note shall continue in full
force and effect. If any of the following events shall occur: (a) the
non-payment of any principal or interest on this Note on the date when due; (b)
the death, interdiction, dissolution, liquidation or insolvency of Obligor; (c)
the filing by or against Obligor of a proceeding under the U.S. Bankruptcy Code
or for any other relief afforded debtors or affecting rights of creditors
generally under the laws of any Jurisdiction; (d) the default by Obligor under
this Note or under any mortgage, security agreement, or other document securing
payment of this Note or under any other obligation owed by Obligor to Bank; (e)
any Judgment, garnishment, seizure, tax lien or levy against any assets of
Obligor; (f) any material adverse change in the financial condition of Obligor,
or any material discrepancy between the financial statements submitted by
Obligor and the actual financial condition of Obligor; (g) any statement,
warranty, or representation made by Obligor to Bank proves to be untrue in any
material respect; (h) any default by Obligor in the payment or performance of
any material liabilities, indebtedness or obligations to any other creditor; or
(i) any discontinuance or termination of any guaranty of all or any portion of
this Note by Obligor; then, at the option of Bank, the full amount of this Note
and all other obligations and liabilities, direct or contingent, of Obligor to
Bank shall be immediately due and payable without notice or demand. Without
releasing or affecting any of its rights,
Bank may, one or more times, in its sole discretion, without notice to or the
consent of Obligor, take any one or more of the following actions: (a) release,
renew or modify the obligations of Borrower or any other Obligor; (b) release,
exchange, modify, or surrender in whole or in part Bank's rights with respect to
any collateral for this Note; (c) modify or alter the term, interest rate or due
date of any payment of this Note; (d) grant any postponements, compromises,
indulgences, waivers, surrenders or discharges or modify the terms of its
agreements with Borrower or any other Obligor; (e) change its manner of doing
business with Borrower or any other party; or (f) impute payments or proceeds of
any collateral furnished by Obligor, in whole or in part to any costs, interest,
or principal due on this Note, or to any other obligation of Obligor to Bank, or
retain the payments or proceeds as collateral for this Note without applying
same toward payment of the Note, and Obligor hereby expressly waives any
defenses arising from any such actions. Obligor may prepay any principal on this
Note in whole or in part and any prepayments made on this Note shall be applied
to the principal payment(s) due on this Note in the inverse order of their
maturity. Each advance under this Note and each payment on this Note shall be
evidenced by entries in Bank's internal records, which shall be prima facie
evidence of (a) the amount of principal and interest owing on this Note from
time to time; (b) the amount of each advance made to Borrower under this Note;
and (c) the amount of each principal and/or interest payment received by Bank on
this Note. The failure of Bank to make an accurate entry of advances and
payments shall not limit or otherwise affect the obligation of Borrower to repay
funds actually advanced by Bank hereunder. For purposes of executory process,
Obligor hereby acknowledges the debt created hereby, confesses judgment in favor
of Bank for the full amount of the debt evidenced by this Note, and consents to
enforcement by executory process. To the extent permitted by law, Obligor hereby
expressly waives (a) the benefit of appraisement provided for in Art. 2723 of
the Louisiana Code of Civil Procedure and (b) the demand and three (3) days
delay provided by Articles 2639 and 2721, Louisiana Code of Civil Procedure.
Obligor agrees to pay the reasonable fees and costs of any attorney-at-law
employed by Bank to recover sums owed or to protect Bank's interests with regard
to this Note. Obligor further agrees to pay any and all charges, fees, costs
and/or taxes levied or assessed against Bank in connection with this Note or
against any collateral provided for this Note. If any payment on this Note is
eleven (11) days or more late, Obligor agrees to pay to the Bank, in addition to
the amount otherwise due hereunder, a delinquency charge of 5.00% of the unpaid
amount of payment, or $15.00, whichever is greater. Late charges will not be
assessed following declaration of default and acceleration of maturity of this
Note. The provisions of this Note may not be waived or modified except in
writing, signed by Bank. No failure or delay of Bank in exercising its rights
shall be construed as a waiver. If any provision of this Note shall be held to
be legally invalid or unenforceable by any court of competent jurisdiction, all
remaining provisions of this Note shall remain in full force and effect. This
Note shall be governed by the internal laws of the State of Louisiana.
LAITRAM, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
Its: President
WHITNEY
Commercial Note New Orleans, Louisiana
$6,000,000.00 April 9, 2003
For value received, the undersigned maker(s) (hereinafter referred to as
"Borrower", which term means individually, collectively, and interchangeably
any, each and/or all of them) promises to pay to the order of HIBERNIA NATIONAL
BANK ("Bank") at its office where borrowed, the sum of SIX MILLION AND NO/100
DOLLARS together with interest thereon, in accordance with the terms set forth
in this Commercial Note ("Note"). The optional provisions applicable to this
Note are checked below.
REPAYMENT: The principal amount set forth above, or the principal amount
then outstanding of advances that Bank makes hereunder to
Borrower, whichever amount is less, shall be payable on MARCH
31, 2005, and interest shall be payable monthly in arrears.
Monthly interest payments shall commence on April 30, 2003, and
shall be payable on the last day of each month thereafter. Bank
may, in its sole discretion, make advances upon the written,
telephonic or facsimile request of Borrower, and Bank is
authorized to rely conclusively upon such requests when
received from a person purporting to be Borrower or Borrower's
authorized officer or representative. Nothing in this Note
shall be construed to establish an obligation on the part of
Bank to make an advance under this Note. The terms and
conditions of the Loan Agreement dated April 9, 2003, by and
among Whitney National Bank, Hibernia National Bank, Bank One,
NA, Laitram, L.L.C., Laitram Group, Inc., Intralox, Inc.,
Laitram Machinery, Inc., ▇▇▇▇▇▇▇ Stair, Inc., Laitram Machine
Shop, L.L.C., ▇▇▇▇▇▇▇ Properties, L.L.C., and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇., guarantors, as may be amended from time to time (the "Loan
Agreement") are incorporated herein by reference and are a part
of the terms and conditions of this Note.
INTEREST: Interest shall accrue on the outstanding principal amount at
the rate established in accordance with the Loan Agreement. All
interest shall be computed on the basis of the actual number of
days elapsed over a year composed of 360 days. Interest shall
accrue from date of advance.
Each party to this Note (including each maker and endorser) and each surety and
guarantor of this Note bound under separate instrument or agreement (hereinafter
referred to as "Obligor", which term means individually, collectively, and
interchangeably any, each and/or all of them) waives presentment for payment,
demand, notice of dishonor, protest, pleas of discussion and division and is
bound jointly, severally and solidarily for the full and timely payment of this
Note in accordance with its terms. To secure the indebtedness evidenced by this
Note, including, without limitation, future advances, with interest, attorneys'
fees, expenses of collection and costs, Obligor pledges, pawns and delivers to
Bank, and grants to Bank a continuing security interest in, and a right of
set-off and compensation against, all property of Obligor or in which Obligor
has an interest that is now or hereafter on deposit with, in the possession of,
under the control of or held by Bank, including, without limitation, all cash,
deposit accounts, funds on deposit, stocks, bonds, treasury obligations and
other securities, investment property, financial assets, securities accounts,
notes, documents, instruments, certificates of deposit, items, chattel paper,
and other property (except ▇▇▇, pension, and other tax-deferred retirement
accounts), together with all property added to or substituted for any of the
foregoing, and all interest, dividends, income, fruits, accessions and proceeds
of any of the foregoing. If the proceeds of collateral for this Note are
insufficient to pay this Note in full, Obligor shall remain fully obligated for
any deficiency. The terms "chattel paper," "deposit accounts," "documents,"
"items," "instruments," "investment property," "securities accounts," "financial
assets" and "proceeds" shall have the meaning provided in the Louisiana
Commercial Laws. Obligor releases Bank from any obligation to collect any
proceeds of or preserve any of Obligor's rights, including, without limitation,
rights against prior parties, in any collateral in which Bank possesses a
security interest. Any responsibility of Bank with respect to any collateral in
which Bank possesses a security interest, whether arising contractually or as a
matter of law, is hereby expressly waived. If an earlier note of Borrower is
canceled at the time of execution hereof, then this Note constitutes an
extension, but not a novation, of the amount of the continuing indebtedness, and
all security rights held by Bank under the earlier note shall continue in full
force and effect. If any of the following events shall occur: (a) the
non-payment of any principal or interest on this Note on the date when due; (b)
the death, interdiction, dissolution, liquidation or insolvency of Obligor; (c)
the filing by or against Obligor of a proceeding under the U.S. Bankruptcy Code
or for any other relief afforded debtors or affecting rights of creditors
generally under the laws of any jurisdiction; (d) the default by Obligor under
this Note or under any mortgage, security agreement, or other document securing
payment of this Note or under any other obligation owed by Obligor to Bank; (e)
any judgment, garnishment, seizure, tax lien or levy against any assets of
Obligor; (f) any material adverse change in the financial condition of Obligor,
or any material discrepancy between the financial statements submitted by
Obligor and the actual financial condition of Obligor; (g) any statement,
warranty, or representation made by Obligor to Bank proves to be untrue in any
material respect; (h) any default by Obligor in the payment or performance of
any material liabilities, indebtedness or obligations to any other creditor; or
(i) any discontinuance or termination of any guaranty of all or any portion of
this Note by Obligor; then, at the option of Bank, the full amount of this Note
and all other obligations and liabilities, direct or contingent, of Obligor to
Bank shall be immediately due and payable without notice or demand. Without
releasing or affecting any of its rights, Bank may, one or more times, in its
sole discretion, without notice to or the consent of Obligor, take any one or
more of the following actions: (a) release, renew or modify the obligations of
Borrower or any other Obligor; (b) release, exchange, modify, or surrender in
whole or in part Bank's rights with respect to any collateral for this Note; (c)
modify or alter the term, interest rate or due date of any payment of this Note;
(d) grant any postponements, compromises, indulgences, waivers, surrenders or
discharges or modify the terms of its agreements with Borrower or any other
Obligor; (e) change its manner of doing business with Borrower or any other
party; or (f) impute payments or proceeds of any collateral furnished by
Obligor, in whole or in part to any costs, interest, or principal due on this
Note, or to any other obligation of Obligor to Bank, or retain the payments or
proceeds as collateral for this Note without applying same toward payment of the
Note, and Obligor hereby expressly waives any defenses arising from any such
actions. Obligor may prepay any principal on this Note in whole or in part and
any prepayments made on this Note shall be applied to the principal payment(s)
due on this Note in the inverse order of their maturity. Each advance under this
Note and each payment on this Note shall be evidenced by entries in Bank's
internal records, which shall be prima facie evidence of (a) the amount of
principal and interest owing on this Note from time to time; (b) the amount of
each advance made to Borrower under this Note; and (c) the amount of each
principal and/or interest payment received by Bank on this Note. The failure of
Bank to make an accurate entry of advances and payments shall not limit or
otherwise affect the obligation of Borrower to repay funds actually advanced by
Bank hereunder. For purposes of executory process, Obligor hereby acknowledges
the debt created hereby, confesses judgment in favor of Bank for the full amount
of the debt evidenced by this Note, and consents to enforcement by executory
process. To the extent permitted by law, Obligor hereby expressly waives (a) the
benefit of appraisement provided for in Art 2723 of the Louisiana Code of Civil
Procedure and (b) the demand and three (3) days delay provided by Articles 2639
and 2721, Louisiana Code of Civil Procedure. Obligor agrees to pay the
reasonable fees and costs of any attorney-at-law employed by Bank to recover
sums owed or to protect Bank's interests with regard to this Note. Obligor
further agrees to pay any and all charges, fees, costs and/or taxes levied or
assessed against Bank in connection with this Note or against any collateral
provided for this Note. If any payment on this Note is eleven (11) days or more
late, Obligor agrees to pay to the Bank, in addition to the amount otherwise due
hereunder, a delinquency charge of 5.00% of the unpaid amount of payment, or
$15.00, whichever is greater. Late charges will not be assessed following
declaration of default and acceleration of maturity of this Note. The provisions
of this Note may not be waived or modified except in writing, signed by Bank. No
failure or delay of Bank in exercising its rights shall be construed as a
waiver. If any provision of this Note shall be held to be legally invalid or
unenforceable by any court of competent jurisdiction, all remaining provisions
of this Note shall remain in full force and effect. This Note shall be governed
by the internal laws of the State of Louisiana.
LAITRAM, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
Its: President
WHITNEY
Commercial Note New Orleans, Louisiana
$13,200,000.00 April 9, 2003
For value received, the undersigned maker(s) (hereinafter referred to as
"Borrower", which term means individually, collectively, and interchangeably
any, each and/or all of them) promises to pay to the order of BANK ONE, NA
("Bank") at its office where borrowed, the sum of THIRTEEN MILLION TWO HUNDRED
THOUSAND AND NO/100 DOLLARS together with interest thereon, in accordance with
the terms set forth in this Commercial Note ("Note'). The optional provisions
applicable to this Note are checked below,
REPAYMENT: The principal amount set forth above, or the principal amount
then outstanding of advances that Bank makes hereunder to
Borrower, whichever amount is less, shall be payable on MARCH 31,
2005, and interest shall be payable monthly in arrears. Monthly
interest payments shall commence on April 30, 2003, and shall be
payable on the last day of each month thereafter. Bank may, in
its sole discretion, make advances upon the written, telephonic
or facsimile request of Borrower, and Bank is authorized to rely
conclusively upon such requests when received from a person
purporting to be Borrower or Borrower's authorized officer or
representative. Nothing in this Note shall be construed to
establish an obligation on the part of Bank to make an advance
under this Note. The terms and conditions of the Loan Agreement
dated April 9, 2003, by and among Whitney National Bank, Hibernia
National Bank, Bank One, NA, Laitram, L.L.C., Laitram Group,
Inc., Intralox, Inc., Laitram Machinery, Inc., ▇▇▇▇▇▇▇ Stair,
Inc., Laitram Machine Shop, L.L.C., ▇▇▇▇▇▇▇ Properties, L.L.C.,
and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., guarantors, as may be amended from
time to time (the "Loan Agreement") are incorporated herein by
reference and are a part of the terms and conditions of this
Note.
INTEREST: Interest shall accrue on the outstanding principal amount at the
rate established in accordance with the Loan Agreement. All
interest shall be computed on the basis of the actual number of
days elapsed over a year composed of 360 days. Interest shall
accrue from date of advance.
Each party to this Note (including each maker and endorser) and each surety and
guarantor of this Note bound under separate instrument or agreement (hereinafter
referred to as "Obligor," which term means individually, collectively, and
interchangeably any, each and/or all of them) waives presentment for payment,
demand, notice of dishonor, protest, pleas of discussion and division and is
bound jointly, severally and solidarily for the full and timely payment of this
Note in accordance with its terms. To secure the indebtedness evidenced by this
Note, including, without limitation, future advances, with interest, attorneys'
fees, expenses of collection and costs, Obligor pledges, pawns and delivers to
Bank, and grants to Bank a continuing security interest in, and a right of
set-off and compensation against, all property of Obligor or in which Obligor
has an interest that is now or hereafter on deposit with, in the possession of,
under the control of or held by Bank, including, without limitation, all cash,
deposit accounts, funds on deposit, stocks, bonds, treasury obligations and
other securities, investment property, financial assets, securities accounts,
notes, documents, instruments, certificates of deposit, items, chattel paper,
and other property (except ▇▇▇, pension, and other tax-deferred retirement
accounts), together with all property added to or substituted for any of the
foregoing, and all interest, dividends, income, fruits, accessions and proceeds
of any of the foregoing. If the proceeds of collateral for this Notes are
insufficient to pay this Note in full, Obligor shall remain fully obligated for
any deficiency. The terms "chattel paper," "deposit accounts," "documents,"
"items," "instruments," "investment property," "securities accounts, "financial
assets" and "proceeds" shall have the meaning provided in the Louisiana
Commercial Laws. Obligor releases Bank from any obligation to collect any
proceeds of or preserve any of Obligor's rights, including, without limitation,
rights against prior parties, in any collateral in which Bank possesses a
security interest. Any responsibility of Bank with respect to any collateral in
which Bank possesses a security interest, whether arising contractually or as a
matter of law, is hereby expressly waived. If an earlier note of Borrower is
canceled at the time of execution hereof, then this Note constitutes an
extension, but not a novation, of the amount of the continuing indebtedness, and
all security rights held by Bank under the earlier note shall continue in full
force and effect. If any of the following events shall occur: (a) the
non-payment of any principal or interest on this Note on the ▇▇▇▇ when due; (b)
the death, interdiction, dissolution, liquidation or insolvency of Obligor; (c)
the filing by or against Obligor of a proceeding under the U.S. Bankruptcy Code
or for any other relief afforded debtors or affecting rights of creditors
generally under the laws of any jurisdiction; (d) the default by Obligor under
this Note or under any mortgage, security agreement, or other document securing
payment of this Note or under any other obligation owed by Obligor to Bank; (e)
any judgment, garnishment, seizure, tax lien or levy against any assets of
Obligor; (f) any material adverse change in the financial condition of Obligor,
or any material discrepancy between the financial statements submitted by
Obligor and the actual financial condition of Obligor; (g) any statement,
warranty, or representation made by Obligor to Bank proves to be untrue in any
material respect; (h) any default by Obligor in the payment or performance of
any material liabilities, indebtedness or obligations to any other creditor or
(i) any discontinuance or termination of any guaranty of all or any portion of
this Note by Obligor; then, at the option of Bank, the full amount of this Note
and all other obligations and liabilities, direct or contingent, of Obligor to
Bank shall be immediately due and payable without notice or demand. Without
releasing or affecting any of its rights, Bank may, one or more times, in its
sole discretion, without notice to or the consent of Obligor, take any one or
more of the following actions: (a) release, renew or modify the obligations of
Borrower or any other Obligor (b) release, exchange, modify, or surrender in
whole or in part Bank's rights with respect to any collateral for this Note; (c)
modify or alter the term, interest rate or due date of any payment of this Note;
(d) grant any postponements, compromises, indulgences, waivers, surrenders or
discharges or modify the
terms of its agreements with Borrower or any other Obligor; (e) change its
manner of doing business with Borrower or any other party; or (f) impute
payments or proceeds of any collateral furnished by Obligor, in whole or in part
to any costs, interest, or principal due on this Note, or to any other
obligation of Obligor to Bank, or retain the payments or proceeds as collateral
for this Note without applying same toward payment of the Note, and Obligor
hereby expressly waives any defenses arising from any such actions. Obligor may
prepay any principal on this Note in whole or in part and any prepayments made
on this Note shall be applied to the principal payment(s) due on this Note in
the inverse order of their maturity. Each advance under this Note and each
payment on this Note shall be evidenced by entries in Bank's internal records,
which shall be prima facie evidence of (a) the amount of principal and interest
owing on this Note from time to time; (b) the amount of each advance made to
Borrower under this Note; and (c) the amount of each principal and/or interest
payment received by Bank on this Note. The failure of Bank to make an accurate
entry of advances and payments shall not limit or otherwise affect the
obligation of Borrower to repay funds actually advanced by Bank hereunder. For
purposes of executory process, Obligor hereby acknowledges the debt created
hereby, confesses judgment in favor of Bank for the full amount of the debt
evidenced by this Note, and consents to enforcement by executory process. To the
extent permitted by law, Obligor hereby expressly waives (a) the benefit of
appraisement provided for in Art. 2723 of the Louisiana Code of Civil Procedure
and (b) the demand and three (3) days delay provided by Articles 2639 and 2721,
Louisiana Code of Civil Procedure. Obligor agrees to pay the reasonable fees and
costs of any attorney-at-law employed by Bank to recover sums owed or to protect
Bank's interests with regard to this Note. Obligor further agrees to pay any and
all charges, fees, costs and/or taxes levied or assessed against Bank in
connection with this Note or against any collateral provided for this Note. If
any payment on this Note is eleven (11) days or more late, Obligor agrees to pay
to the Bank, in addition to the amount otherwise due hereunder, a delinquency
charge of 5.00% of the unpaid amount of payment, or $15.00, whichever is
greater. Late charges will not be assessed following declaration of default and
acceleration of maturity of this Note. The provisions of this Note may not be
waived or modified except in writing, signed by Bank. No failure or delay of
Bank in exercising its rights shall be construed as a waiver. If any provision
of this Note shall be held to be legally invalid or unenforceable by any court
of competent jurisdiction, all remaining provisions of this Note shall remain in
full force and effect. This Note shall be governed by the internal laws of the
State of Louisiana.
LAITRAM, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.,
Its: President