-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, TEQePNN+hOkSfZe+u92tcaDvDL2NywXd5WXR4tvFJqsBWT68z9ai9xuKKOnns/bd BzcGBi21TruF1yeyZO3EVA== 0000950152-95-000458.txt : 199507120000950152-95-000458.hdr.sgml : 19950711 ACCESSION NUMBER: 0000950152-95-000458 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 19940901 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 19950328 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: METATEC CORP CENTRAL INDEX KEY: 0000203200 STANDARD INDUSTRIAL CLASSIFICATION: PHONOGRAPH RECORDS & PRERECORDED AUDIO TAPES & DISKS [3652] IRS NUMBER: 591698890 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-09220 FILM NUMBER: 95523815 BUSINESS ADDRESS: STREET 1: 7001METATEC BLVD CITY: DUBLIN STATE: OH ZIP: 43017 BUSINESS PHONE: 6147612000 MAIL ADDRESS: STREET 1: 7001 METATEC BLVD CITY: DUBLIN STATE: OH ZIP: 43017 FORMER COMPANY: FORMER CONFORMED NAME: SILCO INVESTORS CORP DATE OF NAME CHANGE: 19900801 8-K 1 METATEC 8-K 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 _________________________ FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): September 1, 1994 METATEC CORPORATION (Exact name of registrant as specified in its charter) Florida 0-9220 59-1698890 - ---------------------------- ------------ -------------------- (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.)
7001 Metatec Blvd., Dublin, Ohio 43017 - ---------------------------------------- ------------ (Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (614) 761-2000 No Change (Former name or former address, if changed since last report) 2 ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS. On September 1, 1994, the Registrant purchased, in fee simple title, from Jeffrey M. Wilkins, the Registrant's Chairman of the Board and Chief Executive Officer, approximately seven acres of land and the approximately 55,000 square foot office and manufacturing facility situated thereon located at 7001 Metatec Boulevard, Dublin, Ohio (the "Dublin Facility"). Prior to that time, the Dublin Facility was leased by the Registrant from Mr. Wilkins as part of its manufacturing facilities and as its principal executive offices. The Dublin Facility was purchased pursuant to the terms of an option to purchase which was contained in the lease for the Dublin Facility. This option provided that the Registrant could purchase the Dublin Facility at any time prior to the expiration of the lease term for a purchase price equal to the lesser of (a) $4.8 million or (b) an amount equal to the value in use of the Dublin Facility, as determined by an MAI appraiser, reduced by $660,000 (the value of Registrant improvements in use at the time the option was granted) and without consideration of any improvements made by the Registrant after January 1, 1994. Pursuant to foregoing formula, the purchase price paid to Mr. Wilkins, in cash, was $4.8 million. The Registrant also paid expenses in connection with the purchase totaling $4,710, none of which were paid to Mr. Wilkins. The lease was cancelled in connection with the purchase of the Dublin Facility. The Dublin Facility was purchased with the proceeds of a first mortgage loan in the principal amount of $4.8 million made to the Registrant by The Huntington National Bank. The Registrant continues to use the Dublin Facility as part of its manufacturing facilities and as its principal executive offices. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) EXHIBITS. Exhibit No. Description of Exhibit - ------- ---------------------- 10(a) Lease and Option Agreement dated March 1, 1994, between Metatec Corporation and Jeffrey M. Wilkins. 10(b) Real Estate Purchase Agreement dated September 1, 1994, between Metatec Corporation and Jeffrey M. Wilkins. 10(c) Loan Agreement dated May 13, 1994, between The Huntington National Bank, Metatec Corporation, and Metatec/Discovery Systems, Inc. 10(d) First Amendment to Loan Agreement dated September 1, 1994, between The Huntington National Bank, Metatec Corporation, and Metatec/Discovery Systems, Inc. 10(e) Second Amendment to Loan Agreement dated February 1, 1995, between The Huntington National Bank, Metatec Corporation, and Metatec/Discovery Systems, Inc. 2 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. METATEC CORPORATION Date: March 28, 1995 By /s/ William H. Largent ------------------------------------------- William H. Largent Vice President, Finance, and Treasurer 3 4 EXHIBIT INDEX Exhibit No. Description of Exhibit - ------- ---------------------- 10(a) Lease and Option Agreement dated March 1, 1994, between Metatec Corporation and Jeffrey M. Wilkins. (Contained herein) 10(b) Real Estate Purchase Agreement dated September 1, 1994, between Metatec Corporation and Jeffrey M. Wilkins. (Contained herein) 10(c) Loan Agreement dated May 13, 1994, between The Huntington National Bank, Metatec Corporation, and Metatec/Discovery Systems, Inc. (Contained herein) 10(d) First Amendment to Loan Agreement dated September 1, 1994, between The Huntington National Bank, Metatec Corporation, and Metatec/Discovery Systems, Inc. (Contained herein) 10(e) Second Amendment to Loan Agreement dated February 1, 1995, between The Huntington National Bank, Metatec Corporation, and Metatec/Discovery Systems, Inc. (Contained herein) 4 EX-10.A 2 METATEC EX-10.A 1 Exhibit 10(a) LEASE AND OPTION AGREEMENT This agreement is made effective March 1, 1994, between Jeffrey M. Wilkins ("Landlord"), and Metatec Corporation, a Florida corporation ("Tenant"). BACKGROUND INFORMATION A. Landlord and Tenant's wholly owned subsidiary, Metatec/Discovery Systems, Inc., an Ohio corporation ("Discovery"), are the parties to an Amended and Restated Building Lease dated November 26, 1991 (the "Discovery Lease"), for the lease of certain real property located in Franklin County, Ohio, more fully described on the attached Exhibit A (the "Land"), together with all improvements thereon, including without limitation an approximately 55,000 square foot, two-story office and light manufacturing building (the "Building"), and all appurtenances thereto (collectively, the "Premises"). Tenant has guaranteed Discovery's payment obligations under the Discovery Lease pursuant to a Lease Guaranty dated November 26, 1991 from Tenant to Landlord (the "Guaranty"), and Landlord has granted Tenant an option to purchase the Premises (the "Option") pursuant to an Option Agreement dated November 26, 1991, between Landlord and Tenant (the "Option Agreement"). B. Tenant has acquired approximately eight acres of land adjacent to the Premises (the "Adjacent Property") and has begun construction on an extension of the Building and related improvements which will be owned by Tenant (collectively, the "Building Extension") which are to be constructed in accordance with plans and specifications previously reviewed and approved by both Landlord and Tenant (the "Plans"). Although most of the Building Extension will be built on the Adjacent Property, a portion of the Building Extension will be built on the Land, and the Building Extension will require certain modifications to the Building. C. Landlord and Tenant (the "Parties") desire to enter into this agreement to restructure the existing contractual relationships relating to the Premises to, among other things: (i) make Tenant the lessee of the Premises and terminate the Discovery Lease and the Guaranty, (ii) effectively extend the term of the existing leasehold interest in the Premises, (iii) extend the term of the Option, (iv) incorporate the Option into this agreement, (v) cap the base rent payable for the Premises and the purchase price payable upon exercise of the Option, and (vi) make certain other changes to their respective rights and obligations regarding the Premises, all upon the terms and conditions contained in this agreement. Concurrently with the execution of this agreement, the - 1 - 2 Parties are also entering into a Cross-Easement Agreement and a Party Wall Agreement (the "Agreements") to define certain of their additional rights and obligations with respect to the Premises, the Adjacent Property, and the Building Extension. STATEMENT OF AGREEMENT The Parties to this agreement hereby acknowledge the accuracy of the above Background Information and agree as follows: ARTICLE I - DESCRIPTION AND LEASE OF PREMISES Section 1.01 Lease of Premises. Upon the terms and subject to the conditions described in this agreement, Landlord hereby leases the Premises to Tenant, and Tenant hereby leases the Premises from Landlord. Section 1.02 Basic Lease Provisions. A. Term: 15 years commencing on the date of this agreement (the "Commencement Date") and ending on February 28, 2009 (the "Termination Date"). B. Annual Base Rent: $582,396 C. Monthly Installments of Base Rent: $48,533 D. Address for Notices and Payments: Landlord: Jeffrey M. Wilkins 7001 Metatec Boulevard Dublin, Ohio 43017 Tenant: Metatec Corporation 7001 Metatec Boulevard Dublin, Ohio 43017 Attention: President ARTICLE II - TERM AND POSSESSION Section 2.01 Term. The term of this agreement shall be for the period specified in Item A of the Basic Lease Provisions set forth in Section 1.02 of this agreement (the "Basic Lease Provisions") and shall begin and end on the Commencement Date and Termination Date, respectively. Section 2.02 Tenant's Acceptance of the Premises. Tenant hereby acknowledges that Tenant has accepted the Premises for occupancy and that the condition of the Premises is satisfactory and in conformity with the provisions of this agreement in all respects. - 2 - 3 Section 2.03 Surrender of the Premises. On the Termination Date, or any earlier termination of this agreement, or upon the exercise by Landlord of its right to reenter the Premises without terminating this agreement, Tenant shall immediately surrender the Premises to Landlord, together with all alterations, improvements and other property as provided elsewhere herein, in broom- clean condition and in good order, condition and repair, except for ordinary wear and tear and damage which Tenant is not obligated to repair. If Tenant should fail to surrender the Premises as described in the preceding sentence, then Landlord may restore the Premises to such condition at Tenant's expense. Upon such expiration or termination, Tenant shall, unless prohibited from doing so by other provisions of this agreement, have the right to remove its personal property and trade fixtures. Tenant shall promptly repair any damage caused by any such removal, and shall restore the Premises to the condition existing prior to the installation of the items so removed. Section 2.04 Holding Over. In the event that Tenant holds over in possession of the Premises after the Termination Date, Landlord shall deem Tenant a tenant-at-will at a monthly rent equal to 200% of the monthly Base Rent which is specified in Item C of the Basic Lease Provisions. Nothing in this section shall be deemed to give Tenant any right to hold over possession of the Premises beyond the Termination Date. ARTICLE III - RENT Section 3.01 Base Rent. Tenant shall pay to Landlord as Base Rent for the Premises the annual sum specified in Item B of the Basic Lease Provisions, payable in equal consecutive monthly installments in the amount specified in Item C of the Basic Lease Provisions, in advance, on or before the first day of each and every calendar month during the term of this agreement. Section 3.02 Additional Rent. (a) Definitions. For purposes of this section, the following definitions shall apply: (i) Taxes - "Taxes" shall mean all real and personal property taxes and assessments upon the Premises or assessments levied in lieu thereof imposed by any governmental authority or agency, and any nonprogressive tax on or measured by gross rentals received from the rental of the Premises, which become due during the term of this agreement, but shall not include any net income, franchise, capital stock, estate or inheritance taxes. - 3 - 4 (ii) Utilities - "Utilities" shall mean all costs, expenses, charges, and bills for electricity, gas, water, sewage disposal, trash removal, telephone and other utility services used or wasted in connection with the Premises during the term of this agreement. (b) Tenant's Payment Obligation. In addition to the Base Rent, Tenant shall pay when due, as additional rent, all Taxes and Utilities. Unless otherwise requested by Landlord, Tenant shall pay all Taxes and Utilities directly to the appropriate governmental authority or agency or utility provider, as the case may be. Landlord shall promptly deliver to Tenant, for payment as provided in this section, all bills for Taxes and Utilities which are received by Landlord. Section 3.03 Interruption of Services. Any one or more of the Utilities may be interrupted by reason of accident, emergency or other causes beyond Landlord's control, or may be discontinued or diminished temporarily by Landlord or other persons until certain repairs, alterations or improvements can be made. Landlord does not represent or warrant the uninterrupted availability of the Utilities, and any such interruption shall not be deemed an eviction or disturbance of Tenant's right to possession, occupancy and use of the Premises or any part thereof or render Landlord liable to Tenant for damages by abatement of rent or otherwise, or relieve Tenant from the obligation to perform its covenants under this agreement. Section 3.04 Service Charge. If any installment of Base Rent, additional rent, or any other payment provided for in this agreement is not paid within the applicable period specified in Section 15.01(a), Tenant shall pay to Landlord a late charge of five percent of the amount of such installment or other payment, and, in addition, the unpaid amount shall bear interest at a fluctuating rate which is four percent greater than the "prime rate" announced by The Huntington National Bank from the date such installment became due and payable to the date of payment by Tenant; provided that nothing contained in this agreement shall be construed or implemented in such a manner as to allow Landlord to charge or receive interest in excess of the maximum legal rate then allowed by law. Such late charge and interest shall constitute additional rent hereunder due and payable with the next monthly installment of Base Rent. If any payment of additional rent is disputed by Tenant and Landlord, and such dispute is ultimately resolved in favor of the Tenant, Landlord shall promptly refund or abate the amount of any late charge and interest penalty paid or due to Landlord by Tenant on such disputed amount. - 4 - 5 ARTICLE IV - USE OF PREMISES Section 4.01 Specific Use. The Premises shall be occupied and used for manufacturing compact discs and related products, office space, and purposes incidental thereto, and for any other purposes expressly permitted by this agreement. The Premises shall not be used for any other purpose. Section 4.02 Covenants Regarding Use. In connection with its use of the Premises, Tenant agrees to do the following: (a) Tenant shall use the Premises and conduct its business thereon in a safe, careful, reputable, and lawful manner. (b) Tenant shall not commit, nor allow to be committed, in, on or about the Premises any act of waste, including any act which might deface, damage, or destroy the Building or any part thereof; use or permit to be used on the Premises any hazardous substance, equipment, or other thing which might cause injury to person or property or increase the danger of fire or other casualty in, on or about the Premises; or permit any objectionable or offensive noise or odors to be emitted from the Premises. (c) Tenant shall not use the Premises, or allow the Premises to be used, for any purpose or in any manner which would, in Landlord's opinion, invalidate any policy of insurance now or hereafter carried on the Building or increase the rate of premiums payable on any such insurance policy. If Tenant fails to comply with this covenant, Landlord may, at its option, require Tenant to stop engaging in such activity or to reimburse Landlord as additional rent for any increase in premiums charged during the term of this agreement on the insurance carried by Landlord on the Building and attributable to the use being made of the Premises by Tenant. (d) Tenant shall not vacate or abandon the Premises at any time during the term of this agreement without Landlord's written consent. Section 4.03 Access to and Inspection of the Premises. Landlord, its employees and agents, and any mortgagee of the Premises shall have the right to enter any part of the Premises at all reasonable times for the purpose of examining or inspecting the same, showing the same to prospective purchasers, mortgagees, or tenants and for making such repairs, alterations, or improvements to the Premises as Landlord may deem necessary or desirable. If representatives of Tenant shall not be present to open and permit such entry into the Premises at any time when such entry is necessary or permitted - 5 - 6 hereunder, Landlord and its employees and agents may enter the Premises by means of a master key or otherwise. Landlord shall incur no liability to Tenant for such entry, nor shall such entry constitute an eviction of Tenant or a termination of this agreement, or entitle Tenant to any abatement of rent therefor. Section 4.04 Compliance with Laws. Tenant shall comply with all laws, statutes, ordinances, rules, regulations, and orders of any federal, state, municipal or other government or agency thereof having jurisdiction over and relating to the use and occupancy of the Premises, except that Tenant shall not be responsible for or required to make structural repairs to the Premises unless, in the case of the latter, they are occasioned by its own negligence. Section 4.05 Compliance with Rules and Regulations. Tenant shall comply with and conform to the Rules and Regulations which are set forth on a schedule attached hereto as Exhibit B. Landlord shall have the right to make reasonable amendments or additions to such Rules and Regulations from time to time in any manner that it reasonably deems necessary or desirable in order to insure the safety, care and cleanliness of the Premises and the preservation of order therein. Any such amendments to the Rules and Regulations shall be set forth in writing and shall be given to Tenant, who shall thereafter comply with and conform to the same. ARTICLE V - SIGNS Section 5.01 Signs. Tenant shall not inscribe, paint, affix or display any signs, advertisements or notices on the Premises, including but not limited to the exterior of the Building and the lobby, except for such tenant identification information as Landlord expressly permits; provided that such permission will not be unreasonably withheld. ARTICLE VI - REPAIRS, MAINTENANCE, ALTERATIONS, IMPROVEMENTS, AND FIXTURES Section 6.01 Repair and Maintenance of Building. Landlord shall keep and maintain the Building in good order, condition, and repair including, without limitation, the roof, exterior and interior structural walls (including any plate glass windows comprising a part thereof), foundation, and the electrical, plumbing, heating, ventilation, and air-conditioning systems, the grounds, parking areas, and loading dock; provided that Tenant shall reimburse Landlord for all such maintenance costs and expenses borne by Landlord. Tenant shall be separately billed and shall reimburse Landlord for the same as additional rent. Section 6.02 Repair and Maintenance of Premises. Tenant shall keep and maintain the Premises in good order, condition, and - 6 - 7 repair. Except for ordinary wear and tear and damage which Tenant is not obligated to repair as provided in Article VII of this agreement, the cost and expense of all such repairs and maintenance shall be borne by Tenant, who shall be separately billed and shall reimburse Landlord for the same as additional rent. Section 6.03 Alterations or Improvements. Tenant may make, or may permit to be made, alterations or improvements to the Premises, but only with the prior written consent of Landlord thereto. If Landlord allows Tenant to make any alterations or improvements to the Premises, Tenant shall make the same in accordance with all applicable laws and building codes, in a good and workmanlike manner and in quality equal to or better than the original construction of the Building and shall comply with such requirements as Landlord considers necessary or desirable, including without limitation requirements as to the manner in which and the times at which such work shall be done and the contractor or subcontractors to be selected to perform such work. Tenant shall promptly pay all costs and expenses attributable to such alterations and improvements and shall indemnify Landlord against any mechanics' liens or other liens or claims filed or asserted as a result thereof and against any costs or expenses which may be incurred as a result of building code violations attributable to such work. Tenant shall promptly repair any damage to the Premises or the Building caused by any such alterations or improvements. Any alterations or improvements to the Premises, except movable office furniture and equipment and trade fixtures, shall become a part of the realty and the property of Landlord, and shall not be removed by Tenant. Section 6.04 Trade Fixtures. Any trade fixtures installed on the Premises by Tenant at its own expense may, and, at the request of Landlord, shall be removed on the termination of this lease, provided that Tenant is not then in default, that Tenant bears the cost of such removal, and further that Tenant repairs at its own expense any and all damage to the premises resulting from such removal. If Tenant fails to remove any and all such trade fixtures from the Premises on the termination of this lease, all such trade fixtures shall become the property of Landlord unless Landlord elects to require their removal, in which case Tenant shall at its cost or expense promptly remove same and restore the premises to their prior condition. Section 6.05 Construction of Building Extension. Notwithstanding any provisions of this agreement to the contrary, Tenant shall have the right to use the Premises in all ways reasonably necessary for purposes of constructing the Building Extension and to modify the Premises as contemplated by the Plans; provided that: (a) the Plans shall not be materially modified without Landlord's prior written approval, which shall not be unreasonably withheld; (b) the Building Extension shall be constructed in a good, careful, and - 7 - 8 workmanlike manner and in accordance with (i) the Plans (including any modifications approved by Landlord), (ii) all applicable laws, ordinances, regulations, building codes, approvals, permits, and licenses, (iii) the requirements of the National Board of Fire Underwriters and Landlord's or Tenant's insurance carriers, and (iv) the requirements of any mortgagees of the Premises; (c) Tenant shall complete construction of the Building Extension within a reasonable time after commencement of such construction; (d) Tenant shall promptly pay all costs and expenses attributable to construction of the Building Extension and shall indemnify Landlord against any mechanics' liens or other liens or claims filed or asserted as a result thereof and against any costs or expenses which may be incurred as a result of building code violations attributable to such work; (e) Tenant shall promptly repair any damage to the Premises (which shall not be deemed to include any alterations contemplated by the Plans) caused by any construction of the Building Extension; and (f) during construction of the Building Extension, Tenant shall carry or cause to be carried adequate workman's compensation, builder's risk, and liability insurance, together with any other insurance required by law. ARTICLE VII - FIRE OR OTHER CASUALTY; CASUALTY INSURANCE Section 7.01 Destruction of the Premises. If all or any part of the Premises should be damaged by fire or other casualty, then such damaged part of the Premises shall be reconstructed and restored, at Landlord's expense, to substantially the same condition as it was in prior to the casualty; provided that, if Tenant has made any additional improvements pursuant to Section 6.03 or 6.05, Tenant shall reimburse Landlord for the cost and expense of reconstructing the same. In such event, if the Building is damaged and that damage is expected to prevent Tenant from carrying on its business on the Premises to an extent exceeding 30% of its normal compact disc manufacturing operations on the Premises, rent shall be abated in the proportion which the approximate area of the damaged part of the Building bears to the total area of the Building from the date of the casualty until the reconstruction repairs have been completed to an extent which allows Tenant to resume substantially full operation of its normal audio compact disc manufacturing operations on the Premises; provided that if, and to the extent that, the interruption of Tenant's business is covered by business interruption insurance which includes coverage for the rent which would otherwise be abated under the terms of this section, such rent shall not be abated and Tenant shall pay that portion of the proceeds of its business interruption insurance which represents rent payable by Tenant to Landlord, if any, to Landlord within not more than 10 days following receipt of the same. Subject to the preceding sentence, this agreement shall continue in full force and effect for the balance of the term notwithstanding any casualty or damage. Landlord shall use reasonable diligence in completing - 8 - 9 reconstruction repairs required by this section, but in the event Landlord fails to complete the same within 90 days from the date of the casualty, Tenant may, at its option, terminate this agreement upon giving Landlord written notice to that effect, whereupon both parties shall be released from all further obligations and liability hereunder. Section 7.02 Casualty Insurance. Landlord shall be responsible for insuring and shall at all times during the term of this agreement carry, a policy of insurance which insures the Premises against loss or damage by fire or other casualty deemed appropriate by Landlord; provided that Landlord shall not be responsible for, and shall not be obligated to insure against, any loss of or damage to any personal property of Tenant which Tenant may have on the Premises or any trade fixtures installed by or paid for by Tenant on the Premises, or any additional improvements which Tenant may construct on the Premises, as provided in Section 6.02 or Section 6.05, or any loss of business by Tenant. Tenant shall reimburse Landlord for the cost of all insurance purchased by Landlord pursuant to this section as additional rent after being separately billed therefor. Section 7.03 Waiver of Subrogation. Landlord and Tenant hereby release each other and each other's employees, agents, customers and invitees from any and all liability for any loss, damage, or injury to person or property occurring in, on or about or to the Premises, improvements to the Building, or personal property within the Building by reason of fire or other casualty which could be insured against under a standard fire and extended coverage insurance policy, regardless of cause, including the negligence of Landlord or Tenant or their employees, agents, customers and invitees. Because the provisions of this section preclude the assignment of any claim mentioned herein by way of subrogation or otherwise to an insurance company or any other person, each party to this agreement shall give to each insurance company which has issued to it one or more policies of fire and extended coverage insurance notice of the terms of the mutual releases contained in this section and have such insurance policies properly endorsed, if necessary, to prevent the invalidation of insurance coverages by reason of these mutual releases. Section 7.04 Personal Property, Trade Fixtures and Additional Improvements. Notwithstanding Landlord's obligations as provided in Section Section 7.02, Tenant shall bear the sole risk of any loss of or damage to any personal property (including but not limited to, any furniture, machinery, equipment, goods, or supplies) owned or leased by Tenant or which Tenant may have on the Premises, or any trade fixtures installed by or paid for by Tenant on the Premises, or any additional improvements which Tenant may construct on the Premises; and Landlord shall not be liable for any such loss or damage, regardless of cause, including the negligence of Landlord, its employees, or agents. - 9 - 10 ARTICLE VIII - GENERAL PUBLIC LIABILITY, INDEMNIFICATION AND INSURANCE Section 8.01 Tenant's Responsibility. Tenant shall assume the risk of, be responsible for, have the obligation to insure against, and indemnify Landlord and hold him harmless from any and all liability for any loss, damage, or injury to person or property occurring in, on or about the Premises, regardless of cause, and Tenant hereby releases Landlord from any and all liability for the same. Tenant's obligation to indemnify Landlord shall include the duty to defend against any claims asserted by reason of such loss, damage, or injury and to pay any judgments, settlements, costs, fees, and expenses, including attorneys' fees, incurred in connection therewith. Tenant shall bear the sole risk of any loss of or damage to its property as provided in Section 7.04. Section 8.02 Tenant's Insurance. Tenant, in order to enable it to meet its obligation to insure against the liabilities specified in this agreement, shall at all times during the term of this lease carry, at its own expense, for the protection of Tenant and Landlord, as their interests may appear, one or more policies of general public liability and property damage insurance, issued by one or more insurance companies acceptable to Landlord, with the following minimum coverages or such greater amounts as Landlord may reasonably request: (a) Worker's compensation, minimum statutory amount; (b) Comprehensive general liability insurance, including blanket contractual liability, broad form property damage, personal injury, completed operations, products liability, and fire damage, for not less than $1,000,000 combined single limit for both bodily injury and property damage; and (c) Fire and broad form extended coverage, vandalism and malicious mischief, and sprinkler leakage insurance, for the full cost of replacement of Tenant's property and fixtures located in the Premises. Tenant shall furnish Landlord and its designees with original or certified copies of each insurance policy maintained under this section, including renewal or replacement policies, and certificates of coverage and evidence of Premium payments thereon as requested by Landlord from time to time, provided that Landlord shall be under no duty either to ascertain that any such policies exist, to examine any such policies or certificates, or to advise Tenant whether or not any such policies comply with this agreement. Each insurance policy maintained under this section shall be issued by a responsible insurance company approved by Landlord; shall name - 10 - 11 Landlord, the Mortgagees (defined in Article XII), and any other designees of Landlord as insured parties therein; shall provide that the insurer waives its rights of subrogation against Landlord, the Mortgagees, and any other designees of Landlord with respect to any claims thereunder; shall provide that no act or omission (negligent or otherwise) of Landlord, Tenant, or others shall limit or otherwise affect the insurer's obligation to pay Landlord, the Mortgagees, and any other designees of Landlord all amounts which otherwise would be payable to it or them thereunder; shall provide for written notice to Landlord, the Mortgagees, and any other designees of Landlord at least 30 days prior to any cancellation, expiration without renewal, or modification thereof and shall be in form and substance satisfactory to Landlord. ARTICLE IX - EMINENT DOMAIN If the whole or any part of the Premises shall be taken for public or quasi-public use by a governmental or other authority having the power of eminent domain or shall be conveyed to such authority in lieu of such taking, and if such taking or conveyance shall cause the remaining part of the Premises to be untenantable and inadequate for use by Tenant for the purpose for which they were leased, then Tenant may, at its option, terminate this lease as of the date Tenant is required to surrender possession of the Premises. If a part of the Premises shall be taken or conveyed but the remaining part is tenantable and adequate for Tenant's use as reasonably agreed by Tenant and Landlord, then this lease shall be terminated as to the part taken or conveyed as of the date Tenant surrenders possession; Landlord shall make such repairs, alterations, and improvements as may be necessary to render the part not taken or conveyed tenantable; and the rent shall be reduced in proportion to the part of the Premises so taken or conveyed. All compensation awarded for such taking or conveyance shall be the property of Landlord without any deduction therefrom for any present or future estate of Tenant, and Tenant hereby assigns to Landlord all of its right, title, and interest in and to any such award. However, Tenant shall have the right to recover from such authority, but not from Landlord, such compensation as may be awarded to Tenant on account of moving and relocation expenses and depreciation to and removal of Tenant's trade fixtures and personal property to the extent such compensation does not reduce any amount otherwise payable to Landlord. ARTICLE X - LIENS If, because of any act or omission of Tenant or anyone claiming by, through, or under Tenant, any mechanic's lien or other lien shall be filed against the Premises or against other property of Landlord (whether or not such lien is valid or enforceable as such), Tenant shall, at its own expense, cause the same to be - 11 - 12 discharged of record within a reasonable time, not to exceed 30 days, after the date of filing thereof, and shall also indemnify Landlord and hold it harmless from any and all claims, losses, damages, judgments, settlements, costs, and expenses, including attorneys' fees, resulting therefrom or by reason thereof. ARTICLE XI - RENTAL, PERSONAL PROPERTY AND OTHER TAXES Tenant shall pay before delinquency any and all taxes, assessments, fees, or charges, including any sales, gross income, rental, business occupation, or other taxes, levied or imposed upon Tenant's business operations in the Premises and any personal property or similar taxes levied or imposed upon Tenant's trade fixtures, leasehold improvements, or personal property located within the Premises. In the event any such taxes, assessments, fees, or charges are charged to the account of, or are levied, or imposed upon the property of, Landlord, Tenant shall reimburse Landlord for the same as additional rent. Notwithstanding the foregoing, Tenant shall have the right to contest in good faith any such item and to defer payment, if required, until after Tenant's liability therefor is finally determined. ARTICLE XII - ASSIGNMENT AND SUBLETTING Tenant shall not assign, transfer, or otherwise encumber this agreement or sublet or rent (or permit occupancy or use of) the Premises, or any part thereof, without obtaining the prior written consent of Landlord, which may be subject to the consent of any persons or entities now or hereafter having a mortgage interest in the Building (the "Mortgagees"), nor shall any assignment or transfer of this agreement or the right of occupancy hereunder be effectuated by operation of law or otherwise without the prior written consent of Landlord. In the event that any Mortgagee shall accede to the rights or obligations of Landlord hereunder, through foreclosure or otherwise, such consent shall be granted only at the discretion of such Mortgagee. The consent by Landlord to any assignment or subletting shall not be construed as a waiver or release of Tenant from the terms of any covenant or obligation under this agreement, nor shall the collection or acceptance of rent from any such assignee, subtenant, or occupant constitute a waiver or release of Tenant of any covenant or obligation contained in this agreement, nor shall any assignment or subletting be construed to relieve Tenant from obtaining the consent in writing of Landlord to any further assignment or subletting. In the event that Tenant defaults hereunder, Tenant hereby assigns to Landlord the rent due from any subtenant or Tenant and hereby authorizes each such subtenant to pay said rent directly to Landlord. - 12 - 13 In no event shall Tenant be entitled to any proceeds of an approved sublease or assignment resulting from Tenant charging a higher rent than it is obligated to pay to Landlord under the provisions of this agreement. Any such proceeds shall become the property of Landlord. ARTICLE XIII - TRANSFER BY LANDLORD Section 13.01 Sale and Conveyance of the Premises. Subject to the Provisions of Article XIV of this agreement, Landlord shall have the right to sell and convey the Premises at any time during the term of this agreement, subject only to the rights of Tenant hereunder; and such sale and conveyance shall operate to release Landlord from liability hereunder after the date of such conveyance. Section 13.02 Subordination. This agreement is subject and subordinate to the lien of any and all mortgages which may now or hereafter encumber or otherwise affect the Premises and to all and any renewals, extensions, modifications, recastings, or refinancings thereof. In confirmation of such subordination, Tenant shall, at Landlord's request, promptly execute any requisite or appropriate certificate or other document. Tenant hereby constitutes and appoints Landlord as Tenant's attorney-in-fact to execute any such certificate or other document for or on behalf of Tenant. Tenant agrees that in the event that any proceedings are brought for the foreclosure of any such mortgage, or if any deed in lieu of foreclosure or other conveyance shall be given by Landlord in respect thereto, Tenant shall attorn to purchaser at such foreclosure sale or the transferee of such conveyance, if so requested by such purchaser or transferee, and to recognize such purchaser or transferee as Landlord under this agreement, and Tenant waives the provisions of any statute or rule of law, now or hereafter in effect, which may give or purport to give Tenant any right to terminate or otherwise adversely affect this agreement and the obligations of Tenant hereunder in the event that any such foreclosure or other proceeding is prosecuted or completed. Tenant shall execute such agreements and other documents as may be reasonably requested by Landlord and the holder of any such mortgage to confirm the subordination and attornment described in this section or otherwise to carry out the purposes and intent of this section. ARTICLE XIV - TENANT'S PURCHASE OPTION Section 14.01 Unrestricted Purchase Option. Tenant shall have the right and option, exercisable at any time during the term of this agreement, to purchase the premises for a purchase price equal to the lesser of $4,800,000 or the Fair Value of the Premises (defined below) as of the date Tenant exercises such purchase option. In - 13 - 14 order to exercise such purchase option, Tenant shall give written notice to Landlord, stating in substance that Tenant thereby exercises its purchase option under this section, at any time during the term of this agreement. If Tenant exercises its purchase option under this section, the purchase and sale of the Premises shall be completed pursuant to the terms and conditions of a Real Estate Purchase Agreement substantially in the form of the attached Exhibit C (the "Purchase Agreement"), which shall be executed by the Parties promptly following determination of the Fair Value of the Premises. For purposes of this agreement: (a) the "Fair Value" of the Premises as of any date shall mean the value in use of the Premises (including without limitation the then-current market value of the Land), as established by an appraisal performed by the Appraiser (defined below), less $660,000, provided that such value in use shall be established, to the extent possible, without consideration of any improvements, alterations, or additions made by Tenant in, on, or to the Premises after January 1, 1994 (the "Tenant Additions"), including without limitation the Building Extension, or the amount of any related costs or expenses paid by Tenant; and (b) the "Appraiser" shall mean an MAI appraiser familiar with the commercial real estate market in Central Ohio, retained and paid by Tenant, which appraiser shall be selected (i) by agreement of the Parties, if they are able to agree on an appraiser within 10 days after either Party requests the other Party to agree on an appraiser identified by the requesting Party, or (ii) if the Parties are unable to so agree prior to the end of such 10-day period, by Tenant from a list of three such appraisers provided by Landlord, which list shall be provided by Landlord (if the Parties are unable to agree) promptly following the expiration of such 10-day period. The parties shall provide the Appraiser with such information as may be reasonably necessary for the Appraiser to perform the appraisal required under this section, including without limitation information identifying the Tenant Additions and information regarding the cost of all improvements on the Land other than the Tenant Additions, together with such additional information as the Appraiser may reasonably request. Section 14.02 Right of First Refusal. If at any time during the term of this agreement Landlord receives a bona fide offer to purchase the Premises which Landlord desires to accept (the "Purchase Offer"), then Landlord shall deliver to Tenant a copy of the Purchase Offer. Tenant shall have 30 days from its receipt of the Purchase Offer to elect to purchase the Premises on the same terms and conditions as contained in the Purchase Offer by giving written notice to Landlord of Tenant's election; provided that if no broker's commission would be payable by Landlord as a result of a sale to the purchaser identified in the Purchase Offer, then the - 14 - 15 purchase price payable by Tenant shall be reduced by an amount equal to the typical and customary commission which Landlord would then be charged by a commercial real estate broker, provided that such amount shall not be less than 3% of the purchase price specified in the Purchase Offer. Tenant's failure to notify Landlord of Tenant's election to purchase the Premises under this section within such 30-day period shall constitute Tenant's election not to purchase the Premises. If Tenant elects to purchase the Premises under this section, the closing of Tenant's purchase shall take place within 90 days after Tenant's notice to Landlord, at a time and place reasonably designated by Landlord. If Tenant elects not to purchase the Premises, then Landlord shall have the right to sell the Premises to the purchaser named in the Purchase Offer on the terms and conditions contained therein. If Landlord completes sale of the Premises to such purchaser in accordance with the previous sentence, then Tenant's rights under this Article XIV shall cease and terminate automatically. If for any reason Landlord fails to complete the sale of the Premises to the purchaser pursuant to the terms and conditions contained in the Purchase Offer, Tenant's rights under this Article XIV shall continue to apply to any change in the Purchase Offer (which shall be treated the same as a new offer) and to any subsequent offers to purchase the Premises received by Landlord. Section 14.03 Termination of Lease. If Tenant purchases the Premises pursuant to this Article XIV, then this agreement shall terminate automatically as of the closing of such purchase; provided that such termination shall not relieve either Party of any obligations or liabilities to the other Party which exist at or are based upon acts or omissions occurring prior to such closing. Section 14.04 Commissions. To the extent that any commissions, fees, or other payments are due to any other person as a result of Tenant's purchase of the Premises pursuant to this agreement, each Party shall be responsible for those which it incurs, shall not be responsible for those incurred by the other Party, and shall indemnify the other Party in the event that any such claim is made as a result of his or its actions. Section 14.05 Tenant's Inspection Rights. During the term of this agreement, Tenant, its employees and agents, shall have the right to make such environmental or other surveys, soil tests, engineering studies, and other reviews, investigations, and inspections as Tenant reasonably deems necessary or appropriate in connection with its possible purchase of the Premises; provided that Tenant shall (a) indemnify and hold Landlord harmless from all liabilities, losses, damages, injuries, costs, and expenses arising out of or in any way connected with claims attributable to such - 15 - 16 inspections or other activities, and (b) repair any material damage to the Premises resulting from any such inspections or other activities. Section 14.06 Survival. The provisions of this Article XIV shall survive the expiration or termination of this agreement to the extent necessary to carry out the purposes and intent of this article. ARTICLE XV - DEFAULTS AND REMEDIES Section 15.01 Defaults by Tenant. The occurrence of any one or more of the following events shall be a default and breach of this agreement by Tenant: (a) Tenant shall fail to pay any monthly installment of Base Rent, any additional rent or any other amount payable by Tenant under this agreement within 5 days after the same shall be due and payable. (b) Tenant shall fail to perform or observe any term, condition, covenant, or obligation required to be performed or observed by it under this agreement for a period of 30 days after notice thereof from Landlord; provided that if the term, condition, covenant, or obligation to be performed by Tenant is of such nature that the same cannot reasonably be performed within such 30-day period, such default shall be deemed to have been cured if Tenant commences such performance within said 30-day period and thereafter diligently completes the same. (c) Tenant shall vacate or abandon, or fail to occupy for a period of 30 days, the Premises or any substantial portion thereof. (d) A trustee or receiver shall be appointed to take possession of substantially all of Tenant's assets in, on or about the Premises or of Tenant's interest in this agreement (and Tenant does not regain possession within 60 days after such appointment); Tenant makes an assignment for the benefit of creditors; or substantially all of Tenant's assets in, on, or about the Premises or Tenant's interest in this agreement is attached or levied upon under execution (and Tenant does not discharge the same within 60 days thereafter.) (e) A petition in bankruptcy, insolvency, or for reorganization or arrangement is filed against Tenant pursuant to any federal or state statute and, with respect to any such petition filed against it, Tenant fails to secure a stay or discharge thereof within 60 days after the filing of the same. - 16 - 17 Section 15.02 Remedies of Landlord. Upon the occurrence of any event of default set forth in Section 15.01, Landlord shall have the following rights and remedies, in addition to those allowed by law, any one or more of which may be exercised without further notice to or demand upon Tenant: (a) Landlord may reenter the Premises and cure any default of Tenant, in which event Tenant shall reimburse Landlord as additional rent for any cost and expense which Landlord may incur to cure such default; and Landlord shall not be liable to Tenant for any loss or damage which Tenant may sustain by reason of Landlord's action, regardless of whether caused by Landlord's negligence or otherwise. (b) Landlord may terminate this agreement as of the date of such default, in which event: (i) neither Tenant nor any person claiming under or through Tenant shall thereafter be entitled to possession of the Premises, and Tenant shall immediately thereafter surrender the Premises to Landlord; (ii) Landlord may re-enter the Premises and dispossess Tenant or any other occupants of the Premises by force, summary proceedings, ejectment, or otherwise, and may remove their effects, without prejudice to any other remedy which Landlord may have for possession or arrearages in rent; and (iii) notwithstanding the termination of this agreement (A) Landlord may declare all rent which would have been due under this agreement for the balance of the term to be immediately due and payable, whereupon Tenant shall be obligated to pay the same to Landlord, together with all loss or damage which Landlord may sustain by reason of such termination and re-entry, or (B) Landlord may relet all or any part of the Premises for a term different from that which would otherwise have constituted the balance of the term of this lease and for rent and on terms and conditions different from those contained herein, whereupon Tenant shall immediately be obligated to pay to Landlord as liquidated damages the difference between the rent provided for herein and that provided for in any lease covering a subsequent reletting of the Premises, for the period in which would otherwise have constituted the balance of the term of this lease, together with all of Landlord's costs and expenses for preparing the Premises for reletting, including all repairs, broker's and attorney's fees, and all loss or damage which Landlord may sustain by reason of such termination, reentry, and reletting, it being expressly understood and agreed that the liabilities and remedies specified in clauses (A) and (B) hereof shall survive the termination of this agreement. (c) Landlord may sue for injunctive relief or to recover damages for any loss resulting from the breach. - 17 - 18 Section 15.03 Default by Landlord and Remedies of Tenant. It shall be a default and breach of this agreement by Landlord if it shall fail to perform or observe any term, condition, covenant, or obligation required to be performed or observed by it under this agreement for a period of 30 days after notice thereof from Tenant; provided, however, that if the term, condition, covenant, or obligation to be performed by Landlord is of such nature that the same cannot reasonably be performed within such 30-day period, such default shall be deemed to have been cured if Landlord commences such performance within said 30-day period and thereafter diligently undertakes to complete the same. Upon the occurrence of any such default, Tenant may sue for injunctive relief or to recover damages for any loss resulting from the breach, but Tenant shall not be entitled to terminate this agreement or withhold or abate any rent due hereunder. Tenant agrees to give any mortgagee(s) and/or trust deed holder(s), by registered mail, a copy of any notice of default served upon Landlord, provided that prior to such notice Tenant has been notified in writing (by way of notice of assignment of rents and leases, or otherwise) of the addresses of such mortgagee(s) and/or trust deed holder(s). Tenant further agrees that if Landlord shall have failed to cure such default within the time provided for in this agreement, then the mortgagee(s) and/or trust deed holder(s) shall have an additional 30 days within which to cure such default or if such default cannot be cured within that time, then such additional time as may be necessary to cure such default shall be granted if within such 30 days any mortgagee and/or trust deed holder has commenced and is diligently pursuing the remedies necessary to cure such default (including but not limited to commencement of foreclosure proceedings if necessary to effect such cure), in which event this agreement shall not be terminated while such remedies are being so diligently pursued. In the event of a sale or transfer of the Building, the "Landlord" named herein, or, in the case of a subsequent transfer, the transferor, shall, after the date of such transfer, be automatically released from all personal liability for the performance or observance of any term, condition, covenant or obligation required to be performed or observed by Landlord hereunder; and the transferee shall be deemed to have assumed all of such terms, conditions, covenants and obligations, it being intended hereby that such terms, conditions, covenants and obligations shall be binding upon Landlord, its successors and assigns, only during and in respect of their successive periods of ownership during the term of this agreement. Section 15.04 Nonwaiver of Defaults. The failure or delay by either party hereto to enforce or exercise at any time any of the rights or remedies or other provisions of this agreement shall not - 18 - 19 be construed to be a waiver thereof, nor affect the validity of any part of this agreement or the right of either party thereafter to enforce each and every such right or remedy or other provisions. No waiver of any default and breach of this agreement shall be held to be a waiver of any other default and breach. The receipt by Landlord of less than the full rent due shall not be construed to be other than a payment on account of rent then due, nor shall any statement on Tenant's check or any letter accompanying Tenant's check be deemed an accord and satisfaction, and Landlord may accept such payment without prejudice to Landlord's right to recover the balance of the rent due or to pursue any other remedies provided in this agreement. No act or omission by Landlord or its employees or agents during the term of this lease shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept such a surrender shall be valid unless in writing and signed by Landlord. Section 15.05 Attorneys' Fees. In the event Tenant defaults in the performance or observance of any of the terms, conditions, covenants, or obligations contained in this agreement and Landlord places the enforcement of all or any part of this agreement, the collection of any rent due or to become due, or the recovery of possession of the Premises in the hands of an attorney, Tenant agrees to reimburse Landlord for the attorney's fees incurred thereby, whether or not suit is actually filed. Section 15.06 Litigation. If Landlord is made a party to any litigation commenced against Tenant or commenced by Tenant against any party other than Landlord, then Tenant shall pay all costs and expenses (including reasonable attorneys' fees) incurred or imposed upon Landlord in connection with such litigation. ARTICLE XVI - LEASEHOLD FINANCING Section 16.01 Financing. Tenant shall have the right to mortgage its leasehold interest hereunder (the "Leasehold Mortgage") without Landlord's further consent for the benefit of any institutional lender (a "Leasehold Mortgagee") to secure a mortgage loan to Tenant. Any Leasehold Mortgagee, its successors and assigns, shall have the following rights: (a) So long as the Leasehold Mortgage is in effect, and if Landlord shall provide simultaneous written notice, by certified mail, postage prepaid, to Tenant and to the Leasehold Mortgagee of any default by Tenant claimed by Landlord under this agreement, Landlord will accept the cure by the Leasehold Mortgagee of any such default if made by the Leasehold Mortgagee within 15 days after the expiration of the - 19 - 20 notice and cure period, if any, provided to Tenant in Article XV of this agreement or within 30 days after notice to the Leasehold Mortgagee, if Tenant has no notice and cure period, or if such default cannot reasonably be cured within such 30-day period, then within such additional period, not to exceed 30 days, if the Leasehold Mortgagee promptly commences the cure and diligently completes the cure. The Leasehold Mortgagee shall have no obligation, however, to cure Tenant's default. Insolvency or bankruptcy of Tenant or failure to furnish financial statements or other defaults personal to Tenant and not susceptible to cure by Leasehold Mortgagee shall not be deemed a default under this Lease as to Leasehold Mortgagee, so long as Leasehold mortgagee timely cures all other defaults reasonably susceptible to cure by Leasehold Mortgagee. (b) If the Leasehold Mortgagee timely cures those of Tenant's defaults reasonably susceptible to cure by the Leasehold Mortgagee, Landlord shall not terminate this Lease so long as the Tenant's obligations are being timely performed and foreclosure proceedings or proceedings in lieu thereof are being diligently prosecuted. Upon completion of such proceedings, Landlord shall recognize the Leasehold Mortgagee or any successor purchaser as the new "tenant," upon receipt of a written assumption of this agreement. Landlord waives any prohibition on assignment in such event. (c) In the event that this Lease is terminated by operation of law or rejected by a trustee in bankruptcy, then upon the Leasehold Mortgagee's written request, Landlord shall enter into a new lease with the Leasehold Mortgagee on the same terms for the remainder of the lease term. (d) This agreement may not hereafter be terminated or amended in any material respect without the prior written consent of the Leasehold Mortgagee. Landlord shall not accept a surrender of the leasehold estate or any portion thereof without Leasehold Mortgagee's prior written consent. (e) Upon written request from the Leasehold Mortgagee, Landlord shall promptly provide a written statement acknowledging that this agreement is in full force and effect without default or modification (if and to the extent that such statements are then correct). (f) Notwithstanding any provision in this agreement to the contrary, in the event of a casualty to the Premises while the Leasehold Mortgage is in effect, the insurance proceeds or condemnation award shall be applied to restore the Premises, - 20 - 21 and this agreement shall not be terminated, unless the Leasehold Mortgagee agrees otherwise in writing. (g) Without the prior written consent of Leasehold Mortgagee, the leasehold estate created by this agreement shall not merge with the fee simple estate in the Premises upon union of such estates in one person. ARTICLE XVII - NOTICE AND PLACE OF PAYMENT Section 17.01 Notices. Any notice required or permitted to be given under this agreement or by law shall be in writing and shall be deemed given when delivered in person or mailed by registered or certified mail, postage prepaid, to the Party who is to receive such notice at the address for such Party specified in Item D of the Basic Lease Provisions. When so mailed, the notice shall be deemed to have been given as of the date it was mailed. Either Party may change its address for notices specified in Item D of the Basic Lease Provisions at any time by giving written notice thereof to the other Party. Section 17.02 Place of Payment. All rent and other payments required to be made by Tenant to Landlord shall be delivered or mailed to Landlord at the address specified in Item D of the Basic Lease Provisions or any other address Landlord may specify from time to time by written notice given to Tenant. ARTICLE XVIII - MISCELLANEOUS GENERAL PROVISIONS Section 18.01 Definition of Rent. Any amounts of money to be paid by Tenant to Landlord pursuant to the provisions of this agreement, whether or not such payments are denominated "rent", "additional rent", other costs or expenses, and whether or not they are to be periodic or recurring, shall be deemed "rent" or "additional rent" for purposes of this agreement; and any failure to pay any of the same as provided in Section 15.01 hereof shall entitle Landlord to exercise all of the rights and remedies afforded hereby by law for the collection and enforcement of Tenant's obligation to pay rent. Tenant's obligation to pay any such rent pursuant to the provisions of this agreement shall survive the expiration or other termination of this lease and the surrender of possession of the Premises after any hold over period. Section 18.02 Estoppel Certificate. Tenant agrees, at any time and from time to time, upon not less than five days prior written notice by Landlord, to execute, acknowledge, and deliver to Landlord a statement in writing (i) certifying that this agreement is unmodified and in full force and effect (or if there have been modifications), (ii) stating the dates to which the rent and any other charges hereunder have been paid by Tenant, (iii) stating - 21 - 22 whether or not to the best knowledge of Tenant, Landlord is in default in the performance of any covenant, agreement, or condition contained in this agreement, and if so, specifying each such default of which Tenant may have knowledge, and (iv) stating the address to which notices to Tenant should be sent. Any such statement delivered pursuant hereto may be relied upon by any owner of the Building or the land, any prospective purchaser of the Building or the land, any mortgagee or prospective mortgagee of the Building or the land or of Landlord's interest in either, or any prospective assignee of any such mortgagee. Section 18.03 Indemnification for Leasing Commissions. Each party hereto shall indemnify and hold harmless the other party for any and all liability incurred in connection with the negotiation or execution of this agreement for any real estate broker's leasing commission or finder's fee which has been earned by a real estate broker or other person who was or claims to have been acting on such party's behalf or whose initial contact was with such party. Section 18.04 Governing Law. This agreement is being executed and delivered by Landlord in the State of Ohio and shall be construed and enforced in accordance with the laws of that state. Section 18.05 Successors and Assigns. Subject to the restrictions on transfer and assignment contained in this agreement, this agreement and the respective rights and obligations of the parties hereto shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto as well as the parties themselves; provided that Landlord, its successors, and assigns shall be obligated to perform Landlord's covenants under this agreement only during and in respect of their successive periods of ownership during the term of this agreement. Section 18.06 Severability of Invalid Provisions. If any provision of this agreement shall be held to be invalid, void, or unenforceable, the remaining provisions hereof shall not be affected or impaired, and such remaining provisions shall remain in full force and effect. Section 18.07 Definition of the Relationship between the Parties. Landlord shall not, by virtue of the execution of this agreement or the leasing of the Premises to Tenant, become or be deemed a partner of or joint venturer with Tenant in the conduct of Tenant's business on the Premises or otherwise. Section 18.08 Certain Words, Gender and Headings. As used in this agreement, the word "person" shall mean and include, where appropriate, an individual, corporation, partnership or other entity; the plural shall be substituted for the singular and the singular for the plural, where appropriate; and words of any gender shall - 22 - 23 include any other gender. The topical headings of the several paragraphs of this agreement are inserted only as a matter of convenience and reference, and do not affect, define, limit or describe the scope or intent of this agreement. Section 18.09 Quiet Enjoyment. If and so long as Tenant pays the prescribed rent and performs or observes all of the terms, conditions, covenants, and obligations of this agreement required to be performed or observed by it hereunder, Tenant shall at all times during the term hereof have the peaceable and quiet enjoyment, possession, occupancy, and use of the Premises without any interference from Landlord or any person or persons claiming the Premises by, through, or under Landlord, subject to any mortgages, underlying leases, or other matters of record to which this agreement is or may become subject. Section 18.10 Complete Agreement; Amendments. This document, (including all exhibits or other documents referred to herein, all of which are hereby incorporated herein by reference), constitutes the entire agreement between the Parties and supersedes all previous understandings and agreements between the Parties, if any, regarding the subject matter of this agreement, and no oral or implied representations or understandings shall vary its terms. This agreement may not be amended except by a written instrument executed by both Parties. Section 18.11 Memorandum of Agreement. This agreement shall not be recorded. However, at the request of either Party, the Parties shall execute, acknowledge, and deliver a memorandum of this agreement, in form and substance reasonably satisfactory to both Parties, pursuant to Section 5301.251, Ohio Revised Code, and with respect to the provisions of Article XIV of this agreement, for purposes of giving public notice of the rights and obligations of the Parties under this agreement. Section 18.12 Termination of Prior Agreements. The Guaranty and the Option Agreement are hereby terminated and shall be of no further force or effect. - 23 - 24 Section 18.13 Consistency of Agreements. In the event of any inconsistency between the provisions of this agreement and the provisions of either of the Agreements, the provisions of this agreement shall control. Witnesses as to Landlord: LANDLORD: /s/Kevin H. Connor - ----------------------------- /s/Loraine M. Hanson /s/Jeffrey M. Wilkins - ----------------------------- ------------------------------------- JEFFREY M. WILKINS Witnesses as to Tenant: TENANT: /s/Kevin H. Connor METATEC CORPORATION - ----------------------------- /s/Mary Kay Connor By/s/William H. Largent - ----------------------------- ----------------------------------- William H. Largent, Vice President-Finance STATE OF OHIO COUNTY OF FRANKLIN This document was acknowledged before me on April 13, 1994, by Jeffrey M. Wilkins. [NOTARY SEAL] /s/Kevin H. Connor KEVIN H. CONNOR, Attorney at Law ------------------------------------- Notary Public - State of Ohio Notary Public My Commission Has No Expiration Section 147.03 R.C. STATE OF OHIO COUNTY OF FRANKLIN This document was acknowledged before me on March 31, 1994, by William H. Largent, the Vice President - Finance of Metatec Corporation, a Florida corporation, on behalf of the corporation. /s/Kevin H. Connor ------------------------------------- Notary Public [NOTARY SEAL] KEVIN H. CONNOR, Attorney at Law Notary Public - State of Ohio My Commission Has No Expiration Section 147.03 R.C. - 24 - 25 TERMINATION OF DISCOVERY LEASE The undersigned hereby terminate the Discovery Lease (as defined above) effective as of March 1, 1994. Signed and acknowledged in the presence of: /s/Kevin H. Connor /s/Jeffrey M. Wilkins - ----------------------------- ------------------------------------- Print Name:__________________ Jeffrey M. Wilkins /s/Loraine M. Hanson - ----------------------------- Print Name:__________________ /s/Kevin H. Connor METATEC/DISCOVERY SYSTEMS, INC. - ----------------------------- Print Name:__________________ /s/Loraine M. Hanson By /s/Jeffrey M. Wilkins - ----------------------------- ----------------------------------- Print Name:__________________ Its President ---------------------------------- RELEASE OF DOWER RIGHTS Julia Gard Wilkins, who is the spouse of Jeffrey M. Wilkins, hereby consents to the foregoing Lease and agrees to execute the deed to be delivered to Tenant (as defined above) in connection with Tenant's purchase of the Premises (as defined above) pursuant to Article XIV of the foregoing agreement to release her dower rights in the Premises. Signed and acknowledged in the presence of: /s/Kevin H. Connor /s/Julia Gard Wilkins - ------------------------------ ------------------------------------- Print Name:___________________ JULIA GARD WILKINS /s/Loraine M. Hanson - ------------------------------ Print Name:___________________ - 25 - 26 CONSENT The Huntington National Bank, which is the mortgagee of the Premises (as defined above), hereby consents to this agreement, subject to the execution by Landlord and Tenant of a reasonably satisfactory subordination, nondisturbance, and attornment agreement. THE HUNTINGTON NATIONAL BANK April 13, 1994 By/s/Daniel W. Huffman ------------------------------------ Its Assistant Vice President ----------------------------------- STATE OF OHIO COUNTY OF FRANKLIN The foregoing instrument was acknowledged before me on April 13, 1994, by Julia G. Wilkins. [NOTARY PUBLIC] /s/Kevin H. Connor KEVIN H. CONNOR, Attorney at Law -------------------------------------- Notary Public - State of Ohio Notary Public My Commission Has No Expiration Section 147.03 R.C. STATE OF OHIO COUNTY OF FRANKLIN The foregoing instrument was acknowledged before me on April 13, 1994, by Jeffrey M. Wilkins. [NOTARY PUBLIC] /s/Kevin H. Connor KEVIN H. CONNOR, Attorney at Law -------------------------------------- Notary Public - State of Ohio Notary Public My Commission Has No Expiration Section 147.03 R.C. STATE OF OHIO COUNTY OF FRANKLIN This instrument was acknowledged before me on April 13, 1994, by Jeffrey M. Wilkins, the President of Metatec/Discovery Systems, Inc., an Ohio corporation, on behalf of the corporation. [NOTARY PUBLIC] /s/Kevin H. Connor KEVIN H. CONNOR, Attorney at Law -------------------------------------- Notary Public - State of Ohio Notary Public My Commission Has No Expiration Section 147.03 R.C. - 26 - 27 EXHIBIT A LEGAL DESCRIPTION Situated in the State of Ohio, County of Franklin, Village of Dublin, in Virginia Military Survey No. 2999 and being a portion of an original 72.364 acre tract of land conveyed to Elizabeth M. Workman (50% interest), A. Glenn McClelland (10% interest), W. Reed McClelland (10% interest), William S. Guthrie (10% interest), John R. Warren (10% interest) subsequently upon his death conveyed to Louise H. Warren by deed of record in Official Record 3018, Page A03, Recorder's Office, Franklin County, Ohio), Emerson C. Wollam (5% interest) and Emmerich VonHaam (5% interest) by deeds of record in Deed Book 3075, Page 53, and Deed Book 3602, Page 41, Recorder's Office, Franklin County, Ohio, and bounded and described as follows: Beginning, for reference, at a railroad spike found at the intersection of the centerline of Post Road (60 feet wide) with the centerline of Wilcox Road (60 feet wide) and at the northwest corner of said original 72.364 acre tract; thence S 2 degrees 56' 07" E along the centerline of Wilcox Road and along a portion of the west line of said original 72.364 acre tract a distance of 518.00 feet to a railroad spike set at the true place of beginning of the tract herein intended to be described; thence N 87 degree 03' 53" E perpendicular to the centerline of Wilcox Road and perpendicular to the west line of said original 72.364 acre tract a distance of 730.00 feet to a 3/4-inch I.D. iron pipe set in a curved west line of a proposed street (60 feet wide) (passing a 3/4-inch I.D. iron pipe set in the east right-of-way line of Wilcox Road at 30.00 feet); thence southerly along a portion of a curved west line of said proposed street and with a curve to the left, data of which is: radius = 2,080.00 feet and sub-delta = 4 degree, 56' 03", a sub-chord distance of 179.07 feet bearing S 8 degree 24' 39" E to a 3/4-inch I.D. iron pipe set at the point of tangency; thence S 10 degree 32' 41" E along a west line of said proposed street a distance of 100.00 feet to a 3/4-inch I.D. iron pipe set at a point of curvature; thence southerly along a portion of a curved west line of said proposed street and with a curve to the right, data of which is: radius = 1,070.00 feet and sub-delta = 7 degree 40' 01", a sub-chord distance of 143.07 feet bearing S 7 degree 02' 41" E to a 3/4-inch I.D. iron pipe set; thence S 87 degree 03' 53" W perpendicular to the centerline of Wilcox Road and perpendicular to the west line of said original 72.364 acre tract a distance of 771.16 feet to a railroad spike set in the 28 centerline of Wilcox Road and in the west line of said original 72.364 acre tract (passing a 3/4-inch I.D. iron pipe set in the east right-of-way line of Wilcox Road at 741.16 feet); thence N 2 degree 56' 07" W along the centerline of Wilcox Road and along a portion of the west line of said original 72.364 acre tract a distance of 420.00 feet to the true place of beginning; containing 7.246 acres of land, more or less. - 2 - 29 EXHIBIT B BUILDING RULES AND REGULATIONS 1. Landlord agrees to furnish Tenant with keys to the Premises. No additional locks or bolts of any kind will be placed on doors or windows by Tenant nor will any changes be made in existing locks or the mechanism thereof without Landlord's permission. Tenant will, upon termination of its tenancy, restore all keys to Landlord. If a lock is to be changed, Tenant shall contact Landlord and Landlord shall make said change at Tenant's expense. 2. Tenant will refer all contractors, contractor's representatives and installation technicians, rendering any service on or to the Premises for Tenant, to Landlord for Landlord's approval before performance of any contractual service. This provision shall apply to all work performed in the Building including installation of telegraph equipment, electrical devices, and attachments and installations of any nature affecting floors, walls, woodwork, trim, windows, ceilings, and equipment of any physical portion of the Building. 3. Tenant shall not at any time occupy any part of the Building as sleeping or lodging quarters. 4. Tenant shall not place, install or operate in or on the Premises any engine, stove or machinery, or conduct mechanical operations or cook thereon or therein, or place or use in or about the leased premises any explosives, gasoline, kerosene, oil, acids, caustics, or any inflammable, explosive, or hazardous material without written consent of Landlord except as normally involved in the process of compact disc manufacturing. 5. Landlord will not be responsible for lost or stolen personal property, equipment, money, or jewelry from the Premises or any other area regardless of whether such loss occurs when such area is locked against entry or not. 6. No bicycles, vehicles or animals of any kind shall be brought into or kept in or about the Building. 7. None of the entries, passages, doors, elevator, hallways or stairways shall be blocked or obstructed, or any rubbish, litter, trash or material of any nature placed, emptied or thrown into these areas, or such areas be used at any time except for access or egress by Tenant, Tenant's agents, employees, or invitees. 8. Movement in or out of the Premises of furniture, office supplies, or equipment, or dispatch or receipt by Tenant of any merchandise or materials, which requires use of the hallways between the loading dock and the Premises, shall be at Landlord's sole discretion and restricted to the hours of 8:00 a.m. to 30 5:00 p.m. on Monday through Friday or such hours as are otherwise designated by Landlord. Tenant assumes, and shall indemnify Landlord against, all risks and claims of damages to persons and properties arising in connection with any such use of the hallways. 9. No awnings or other projections shall be attached to the outside of the Building and no curtains, blinds, shades, or screens, other than those provided by Landlord, will be used in connection with any window of the Premises without the written consent of Landlord. 10. No advertisement or other lettering will be exhibited, inscribed, painted or affixed on the outside or inside of the Building without the written consent of Landlord. In the event of the violation of the foregoing, Landlord may remove same without any liability and at the expense of Tenant. 11. Canvassing, soliciting and peddling in the Building are prohibited and Tenant shall cooperate to prevent the same. 31 EXHIBIT C REAL ESTATE PURCHASE AGREEMENT This agreement is made _________________, 19__, between Jeffrey M. Wilkins, whose address is 2481 Stonehaven Place, Upper Arlington, Ohio 43220 ("Seller"), and Metatec Corporation, a Florida corporation, whose address is 7001 Discovery Boulevard, Dublin, Ohio 43017 ("Buyer"), who hereby agree as follows: Section 1. Purchase and Sale. On the terms and subject to the conditions hereinafter set forth, Seller shall sell and convey to Buyer and Buyer shall purchase from Seller a parcel of real property containing approximately 7.246 acres located in Dublin, Ohio, as more fully described on the attached Exhibit I, together with the approximately 55,000 square foot building located thereon, and all other improvements thereon and appurtenances thereto (collectively, the "Property"). Section 2. Purchase Price. The purchase price for the Property shall be $___________. The purchase price (after all adjustments provided for in this agreement) shall be paid by Buyer to Seller at the closing (as defined in Section 3) by cash, bank cashier's check, or bank wire transfer, as selected by Buyer. Section 3. Closing and Possession. The closing shall be held within 30 days after the date of this agreement at a time and place reasonably designated by Seller (the "Closing"). Seller shall be entitled to possession of the Property until the Closing, and Buyer shall be entitled to possession of the Property at and after the Closing. Section 4. Evidence of Title. At least five days prior to the Closing, Seller shall furnish Buyer with a commitment for an owner's title insurance policy in the amount of the purchase price. The title insurance commitment shall show in Seller marketable fee-simple title to the Property free and clear of all liens, encumbrances, restrictions, easements, and other defects or claims except: (a) real estate taxes not then due and payable; (b) zoning, ordinances; (c) existing rights-of-way; (d) rights of existing tenants in possession of all or part of the Property; (e) easements, conditions, and restrictions of record which do not unreasonably interfere with the present lawful use of the Property; and (f) any other matters approved by Buyer. At the Closing, or as soon thereafter as may be reasonably practicable, Seller shall cause to be delivered to Buyer an owner's title insurance policy written on such title insurance commitment. Section 5. Deed. At the Closing, Seller shall convey the Property to Buyer by a transferable and recordable general warranty deed, transferring good and marketable fee-simple title to the Property to Buyer free and clear of all liens, encumbrances, restrictions, easements, and other defects except those described in Section 4, above. 32 All approvals required from any governmental authority to permit the deed to be recorded shall be obtained by Seller at his expense and stamped thereon prior to Closing. Seller shall pay the conveyance fee relating to this transaction. Section 6. Other Closing Documents. In addition to the deed described in Section 5, at the Closing, Seller shall deliver to Buyer: (a) a closing statement for the Property showing the purchase price and all charges or credits to Buyer or Seller provided for herein; (b) all consents, affidavits or other documents reasonably required by the title company to issue the policy described in Section 4; (c) an affidavit that Seller is not a nonresident "alien," "foreign corporation," "foreign partnership," "foreign trust," or "foreign estate" within the meaning of the Internal Revenue Code and regulations thereunder; (d) assignments of all leases between Seller and any existing tenants in possession of all or part of the Property (the "Leases"); (e) assignments of all service and maintenance contracts relating to the Property to which Seller is a party and which are assignable by Seller, if any (the "Service Contracts"); and (f) any other documents required to be delivered by Seller under this agreement which have not been delivered to Buyer prior to the Closing. All such documents shall be in form and substance reasonably satisfactory to Buyer. At the Closing, Buyer shall deliver to Seller agreements evidencing (i) Buyer's assumption of all obligations and liabilities of Seller under the Leases and the Service Contracts from and after the Closing, and (ii) Buyer's indemnification of Seller against any and all liabilities, claims, damages, costs, and expenses arising out of any failure of Seller to perform or satisfy any of such assumed obligations and liabilities. Such agreements shall be in form and substance reasonably satisfactory to Seller. Section 7. Taxes and Assessments. All real estate taxes on the Property for the calendar year in which the Closing occurs shall be prorated between Seller and Buyer to the date of the Closing. All real estate taxes on the Property for any prior calendar years, including penalties and interest, shall be paid in full by Seller. Seller shall pay any and all assessments, charges and special taxes which are a lien on the Property at the date of the Closing or which are attributable to improvements that have theretofore been completed. For purposes of this agreement, any tax rates and property valuations that are not determined at the time of the Closing shall be deemed to be the same as the last determined tax rates and property valuations. If Buyer so elects, any taxes and assessments that are to be prorated to or paid by Seller under this section shall instead be credited upon the purchase price at the Closing, and Buyer shall then take title to the Property subject to the lien of such taxes and assessments. Section 8. Rentals, Security Deposits, Interest, Insurance, and Utilities. At least 10 days prior to the Closing, Seller shall provide Buyer with copies of all Leases. At the Closing, Seller shall 33 provide Buyer with estoppel certificates, in form and substance reasonably satisfactory to Buyer, executed by the tenants under the Leases. All security deposits for the Leases shall be transferred by Seller to Buyer. All rental payments under the Leases, interest on any mortgage assumed by Buyer, if any, and utility charges on the Property shall be prorated between Seller and Buyer to the date of the Closing. If Buyer so elects, any amounts to be prorated under this section shall instead be credited on the purchase price at the Closing. If Buyer so elects, Seller shall assign to Buyer all of his interest in any assignable insurance policy on the Property, and adjustment shall be made through the date of Closing for any premiums paid in advance or premiums payable under such policies. Section 9. Damage or Destruction of Property. Risk of loss to the Property shall be borne by Seller until Closing. Section 10. Commissions. To the extent that any commissions, fees, or other payments are due to any other person as a result of Buyer's purchase of the Property pursuant to this agreement, each party shall be responsible for those which it incurs, shall not be responsible for those incurred by the other party, and shall indemnify the other party in the event that any such claim is made as a result of his or its actions. Section 11. Notices. Any notice or other communication required or desired to be given to either party under this agreement shall be in writing and shall be deemed given when: (a) delivered personally to that party; (b) deposited in the United States mail, certified, with postage prepaid and return receipt requested, addressed to that party at that party's address specified at the beginning of this agreement, or at any other address hereafter designated by that party in notice theretofore given to the other party; or (c) delivered to that party at that party's address specified at the beginning of this agreement, or at any other address hereafter designated by that party in notice theretofore given to the other party, by any express mail or other over-night delivery service. Section 12. Governing Law. All questions concerning the validity or meaning of this agreement or relating to the rights and obligations of the parties with respect to performance under this agreement shall be construed and resolved under the laws of Ohio. Section 13. Complete Agreement. This agreement (including its exhibits) contains the entire agreement between the parties and supersedes all prior or contemporaneous discussions, negotiations, representations, or agreements relating to the subject matter of this agreement. No changes to this agreement shall be made or be binding on any party unless made in writing and signed by each party to this agreement. 34 Section 14. Incorporation of Exhibits. Each exhibit referred to in this agreement is hereby incorporated herein by reference. Section 15. Captions. The captions of the various sections of this agreement are not part of the context of this agreement, but are only labels to assist in locating those sections, and shall be ignored in construing this agreement. Section 16. Assignment; Successors in Interest. This agreement shall be personal to both parties and no rights or obligations under this agreement may be assigned by either party. Subject to the preceding sentence, this agreement shall be binding upon and inure to the benefit of both parties and their respective heirs, personal representatives, successors, and permitted assigns. METATEC CORPORATION By__________________________ ____________________________________ Its_________________________ JEFFREY M. WILKINS EX-10.B 3 METATEC EX-10(B) 1 Exhibit 10(b) REAL ESTATE PURCHASE AGREEMENT This agreement is made September 1, 1994, between Jeffrey M. Wilkins, whose address is 2481 Stonehaven Place, Upper Arlington, Ohio 43220 ("Seller"), and Metatec Corporation, a Florida corporation, whose address is 7001 Metatec Boulevard, Dublin, Ohio 43017 ("Buyer"), who hereby agree as follows: Section 1. Purchase and Sale. On the terms and subject to the conditions hereinafter set forth, Seller shall sell and convey to Buyer and Buyer shall purchase from Seller a parcel of real property containing approximately 7.246 acres located in Dublin, Ohio, as more fully described on the attached Exhibit A, together with the approximately 55,000 square foot building located thereon, and all other improvements thereon and appurtenances thereto (collectively, the "Property"). Section 2. Purchase Price. The purchase price for the Property shall be $4,800,000. The purchase price (after all adjustments provided for in this agreement) shall be paid by Buyer to Seller at the closing (as defined in Section 3) by cash, bank cashier's check, or bank wire transfer, as selected by Buyer. Section 3. Closing and Possession. The closing shall be held within thirty (30) days after the date of this agreement at a time and place reasonably designated by Seller (the "Closing"). Seller shall be entitled to possession of the Property until the Closing, and Buyer shall be entitled to possession of the Property at and after the Closing. Section 4. Evidence of Title. At least five (5) days prior to the Closing, Seller shall furnish Buyer with a commitment for an owner's title insurance policy in the amount of the purchase price. The title insurance commitment shall show in Seller marketable fee-simple title to the Property free and clear of all liens, encumbrances, restrictions, easements, and other defects or claims except: (a) real estate taxes not then due and payable; (b) zoning and building laws, ordinances and regulations; (c) existing rights-of-way; (d) rights of existing tenants in possession of all or part of the Property; (e) easements, conditions, and restrictions of record which do not unreasonably interfere with the present lawful use of the Property; and (f) any other matters approved by Buyer. At the Closing, or as soon thereafter as may be reasonably practicable, Seller shall cause to be delivered to Buyer an owner's title insurance policy written on such title insurance commitment. Section 5. Deed. At the Closing, Seller shall convey the Property to Buyer by a transferable and recordable general warranty deed, transferring good and marketable fee-simple title to the Property to Buyer free and clear of all liens, encumbrances, restrictions, easements, and other defects except those described in Section 4, above. All approvals required from any governmental authority to permit the deed to be recorded shall be obtained by Seller at his expense 2 and stamped thereon prior to Closing. Seller shall pay the conveyance fee relating to this transaction. Section 6. Other Closing Documents. In addition to the deed described in Section 5, at the Closing, Seller shall deliver to Buyer: (a) a closing statement for the Property showing the purchase price and all charges or credits to Buyer or Seller provided for herein; (b) all consents, affidavits or other documents reasonably required by the title company to issue the policy described in Section 4; (c) an affidavit that Seller is not a nonresident "alien," "foreign corporation," "foreign partnership," "foreign trust," or "foreign estate" within the meaning of the Internal Revenue Code and regulations thereunder; (d) assignments of all leases between Seller and any existing tenants in possession of all or part of the Property (the "Leases"); (e) assignments of all service and maintenance contracts relating to the Property to which Seller is a party and which are assignable by Seller, if any (the "Service Contracts"); and (f) any other documents required to be delivered by Seller under this agreement which have not been delivered to Buyer prior to the Closing. All such documents shall be in form and substance reasonably satisfactory to Buyer. At the Closing, Buyer shall deliver to Seller agreements evidencing (i) Buyer's assumption of all obligations and liabilities of Seller under the Leases and the Service Contracts from and after the Closing, and (ii) Buyer's indemnification of Seller against any and all liabilities, claims, damages, costs, and expenses arising out of any failure of Seller to perform or satisfy any of such assumed obligations and liabilities. Such agreements shall be in form and substance reasonably satisfactory to Seller. Section 7. Taxes and Assessments. All real estate taxes on the Property for the calendar year in which the Closing occurs shall be prorated between Seller and Buyer to the date of the Closing. All real estate taxes on the Property for any prior calendar years, including penalties and interest, shall be paid in full by Seller. Seller shall pay any and all assessments, charges and special taxes which are a lien on the Property at the date of the Closing or which are attributable to improvements that have theretofore been completed. For purposes of this agreement, any tax rates and property valuations that are not determined at the time of the Closing shall be deemed to be the same as the last determined tax rates and property valuations. If Buyer so elects, any taxes and assessments that are to be prorated to or paid by Seller under this section shall instead be credited upon the purchase price at the Closing, and Buyer shall then take title to the Property subject to the lien of such taxes and assessments. Section 8. Rentals, Security Deposits, Interest, Insurance, and Utilities. At least ten (10) days prior to the Closing, Seller shall provide Buyer with copies of all Leases. At the Closing, Seller shall provide Buyer with estoppel certificates, in form and 2 3 substance reasonably satisfactory to Buyer, executed by the tenants under the Leases. All security deposits for the Leases shall be transferred by Seller to Buyer. All rental payments under the Leases, interest on any mortgage assumed by Buyer, if any, and utility charges on the Property shall be prorated between Seller and Buyer to the date of the Closing. If Buyer so elects, any amounts to be prorated under this section shall instead be credited on the purchase price at the Closing. If Buyer so elects, Seller shall assign to Buyer all of his interest in any assignable insurance policy on the Property, and adjustment shall be made through the date of Closing for any premiums paid in advance or premiums payable under such policies. Section 9. Damage or Destruction of Property. Risk of loss to the Property shall be borne by Seller until Closing. Section 10. Commissions. To the extent that any commissions, fees, or other payments are due to any other person as a result of Buyer's purchase of the Property pursuant to this agreement, each party shall be responsible for those which it incurs, shall not be responsible for those incurred by the other party, and shall indemnify the other party in the event that any such claim is made as a result of his or its actions. Section 11. Notices. Any notice or other communication required or desired to be given to either party under this agreement shall be in writing and shall be deemed given when: (a) delivered personally to that party; (b) deposited in the United States mail, certified, with postage prepaid and return receipt requested, addressed to that party at that party's address specified at the beginning of this agreement, or at any other address hereafter designated by that party in notice theretofore given to the other party; or (c) delivered to that party at that party's address specified at the beginning of this agreement, or at any other address hereafter designated by that party in notice theretofore given to the other party, by any express mail or other over-night delivery service. Section 12. Governing Law. All questions concerning the validity or meaning of this agreement or relating to the rights and obligations of the parties with respect to performance under this agreement shall be construed and resolved under the laws of Ohio. Section 13. Complete Agreement. This agreement (including its exhibits) contains the entire agreement between the parties and supersedes all prior or contemporaneous discussions, negotiations, representations, or agreements relating to the subject matter of this agreement. No changes to this agreement shall be made or be binding on any party unless made in writing and signed by each party to this agreement. 3 4 Section 14. Incorporation of Exhibits. Each exhibit referred to in this agreement is hereby incorporated herein by reference. Section 15. Captions. The captions of the various sections of this agreement are not part of the context of this agreement, but are only labels to assist in locating those sections, and shall be ignored in construing this agreement. Section 16. Assignment; Successors in Interest. This agreement shall be personal to both parties and no rights or obligations under this agreement may be assigned by either party. Subject to the preceding sentence, this agreement shall be binding upon and inure to the benefit of both parties and their respective heirs, personal representatives, successors, and permitted assigns. METATEC CORPORATION By /s/William H. Largent /s/Jeffrey M. Wilkins ------------------------ --------------------- William H. Largent Jeffrey M. Wilkins Vice President - Finance 4 5 EXHIBIT A Situated in the State of Ohio, County of Franklin, Village of Dublin, in Virginia Military Survey No. 2999 and being a portion of an original 72.364 acre tract of land conveyed to Elizabeth M. Workman (50% interest), A. Glenn McClelland (10% interest), W. Reed McClelland (10% interest), William S. Guthrie (10% interest), John R. Warren (10% interest) subsequently upon his death conveyed to Louise H. Warren by deed of record in Official Record 3018, Page A03, Recorder's Office, Franklin County, Ohio), Emerson C. Wollam (5% interest) and Emmerich VonHaam (5% interest) by deeds of record in Deed Book 3075, Page 53, and Deed Book 3602, Page 41, Recorder's Office, Franklin County, Ohio, and bounded and described as follows: Beginning, for reference, at a railroad spike found at the intersection of the centerline of Post Road (60 feet wide) with the centerline of Wilcox Road (60 feet wide) and at the northwest corner of said original 72.364 acre tract; thence S 2 deg. 56' 07" E along the centerline of Wilcox Road and along a portion of the west line of said original 72.364 acre tract a distance of 518.00 feet to a railroad spike set at the true place of beginning of the tract herein intended to be described; thence N 87 deg. 03' 53" E perpendicular to the centerline of Wilcox Road and perpendicular to the west line of said original 72.364 acre tract a distance of 730.00 feet to a 3/4-inch I.D. iron pipe set in a curved west line of a proposed street (60 feet wide) (passing a 3/4-inch I.D. iron pipe set in the east right-of-way line of Wilcox Road at 30.00 feet); thence southerly along a portion of a curved west line of said proposed street and with a curve to the left, data of which is: radius = 2,080.00 feet and sub-delta = 4 deg., 56' 03", a sub-chord distance of 179.07 feet bearing S 8 DEGREE 24' 39" E to a 3/4-inch I.D. iron pipe set at the point of tangency; thence S 10 deg. 32' 41" E along a west line of said proposed street a distance of 100.00 feet to a 3/4-inch I.D. iron pipe set at a point of curvature; 6 thence southerly along a portion of a curved west line of said proposed street and with a curve to the right, data of which is: radius = 1,070.00 feet and sub-delta = 7 deg. 40' 01", a sub-chord distance of 143.07 feet bearing S 7 deg. 02' 41" E to a 3/4-inch I.D. iron pipe set; thence S 87 deg. 03' 53" W perpendicular to the centerline of Wilcox Road and perpendicular to the west line of said original 72.364 acre tract a distance of 771.16 feet to a railroad spike set in the centerline of Wilcox Road and in the west line of said original 72.364 acre tract (passing a 3/4-inch I.D. iron pipe set in the east right-of-way line of Wilcox Road at 741.16 feet); thence N 2 deg. 56' 07" W along the centerline of Wilcox Road and along a portion of the west line of said original 72.364 acre tract a distance of 420.00 feet to the true place of beginning; containing 7.246 acres of land, more or less. EX-10.C 4 METATEC EX-10(C) 1 Exhibit 10(c) LOAN AGREEMENT DATED AS OF MAY 13, 1994 BETWEEN THE HUNTINGTON NATIONAL BANK AND METATEC CORPORATION AND METATEC/DISCOVERY SYSTEMS, INC. Porter, Wright, Morris & Arthur 41 South High Street Columbus, Ohio 43215 2 TABLE OF CONTENTS
SECTION HEADING 1. The Loans...................................... 1.1 The Term Loan.......................... 1.2 The Revolving Loan..................... 1.3 Limitations on Advances................ 2. Terms and Uses of Loan......................... 2.1 Interest Rates and Evidence of Loan.... 2.2 Fees and Costs......................... 2.3 Use of Proceeds........................ 2.4 Cross-Prepayment....................... 2.5 Prepayment............................. 3. Security for the Term Loan..................... 4. Warranties and Representations................. 4.1 Corporate Organization and Authority... 4.2 Borrowing is Legal and Authorized...... 4.3 Taxes.................................. 4.4 Compliance with Law.................... 4.5 Financial Statements, Full Disclosure.. 4.6 No Insolvency.......................... 4.7 Government Consent..................... 4.8 Title to Properties.................... 4.9 No Defaults............................ 4.10 Environmental Protection............... 4.11 Warranties and Representations......... 4.1 Advances............................... 5. The Company Business Covenants................. 5.1 Payment of Taxes and Claims............ 5.2 Maintenance of Properties and Corporate Existence................. 5.3 Sale of Assets, Merger, Subsidiaries, Tradenames............ 5.4 Negative Pledge........ ............... 5.5 Other Borrowings and Contingent Liabilities......................... 5.6 Sale of Accounts, No Consignment....... 5.7 Ownership and Management............... 5.8 Acquisition of Capital Stock........... 5.9 Compensation of Officers and Affiliated Persons.................. 5.10 Cash Dividends and Other Distributions....................... 5.11 Minimum Security.......................... 5.12 Tangible Net Worth........................ 5.13 Current Ratio............................. 5.14 Ratio of Total Liabilities to Net Worth........................ 5.15 Capital Expenditures...................... 5.16 Transactions with Affiliates.............. 5.17 Maintenance of Accounts................... 5.18 Loans and Advances........................ 5.19 Resting of Revolving Loan................. 5.20 Environmental Compliance and Indemnification.....................
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SECTION HEADING 6. Financial Information and Reporting............ 7. Default........................................ 7.1 Events of Default...................... 7.2 Default Remedies....................... 8. Miscellaneous.................................. 8.1 Notices................................ 8.2 Reproduction of Documents.............. 8.3 Survival, Successors and Assigns....... 8.4 Amendment and Waiver, Duplicate Originals........................... 8.5 Uniform Commercial Code and Generally Accepted Accounting Principles...... 8.6 Enforceability and Governing Law....... 8.7 Waiver of Right to Trial by Jury....... 9. Definitions.................................... Exhibits Exhibit A-1 - Revolving Note Exhibit A-2 - Term Note Exhibit B - Schedule of Permitted Encumbrances Exhibit C - Schedule of Indebtedness
- ii - 4 LOAN AGREEMENT This agreement (the "Agreement") is entered into at Columbus, Ohio, between The Huntington National Bank (the "Bank"), as lender and Metatec Corporation and Metatec/Discovery Systems, Inc. (collectively, on a joint and several basis, the "Company"), as borrowers as of the 13th day of May, 1994. 1. The Loans. 1.1 The Term Loan. The Bank, subject to the terms and conditions hereof, will make loans and advances to the Company on a secured draw/term basis in a principal amount up to the sum of $4,300,000.00 (the "Term Loan"). 1.2 The Revolving Loan. The Bank, subject to the terms and conditions hereof, will make loans and advances to the Company on an unsecured revolving basis in a principal amount up to $2,000,000.00 (the "Revolving Loan"). 1.3 Limitations on Advances. The Term Loan and the Revolving Loan are hereinafter sometimes collectively referred to as the "Loan". The Bank shall have no obligation to make any advances pursuant to the Loan at any time when any set of facts or circumstances exists that, by itself, upon the giving of notice, the lapse of time or any one or more of the foregoing, would constitute an Event of Default under this Agreement. 2. Terms and Uses of Loan. 2.1 Interest Rates and Evidence of Loan. The Company agrees to pay the Bank monthly interest on the unpaid balance of the Loan at the rates of interest and in the manner set forth in the notes evidencing the Loan. In addition, the Company agrees to make principal payments in the manner set forth in the notes evidencing the Loan. The Loan shall be evidenced by promissory notes executed of even date herewith or one or more notes subsequently executed in substitution therefor, each in substantially the form set forth in Exhibits A-1 and A-2 to this Agreement. Repayment of the Loan shall be made in accordance with the terms of the notes then outstanding pursuant to this Agreement. Each advance request of the Company under the Term Loan or the Revolving Loan shall be accompanied by such documents or communications acceptable to the Bank in its sole and absolute discretion. 2.2 Fees and Costs. The Company agrees to pay to the Bank no later than the execution of this Agreement an arrangement fee in respect of the Term Loan equal to $43,000.00. The Company shall pay all costs and expenses incidental to the Loan or the Bank's administration of the Loan, the enforcement of the Bank's rights in connection therewith, any amendment or modification of this Agreement or any other loan documents, or any litigation, contest, dispute, proceeding or action in any way relating to the Project or the enforcement of this Agreement, whether any of the foregoing are incurred prior to or after maturity, the occurrence of an Event of Default, or the rendering of a judgment. Such costs shall include, but not be limited to, fees and out-of-pocket expenses of the Bank's counsel, audit fees, survey fees, title insurance fees, recording fees, inspection fees, revenue stamps and note and mortgage taxes. 2.3 Use of Proceeds. The net proceeds of the Term Loan will be used to provide financing in connection with costs 5 incurred with the acquisition of approximately 8 acres of land located at and adjacent to 7001 Metatec Blvd., Dublin, Ohio and the construction of an approximate 60,000 square foot office/distribution facility (collectively the "Project"). The net proceeds of the Revolving Loan will be used for working capital needs. 2.4 Cross-Prepayment. Notwithstanding any provision of this Agreement or the promissory note or notes evidencing the Term Loan, the Company shall have no right to prepay in full the Term Loan unless there occurs simultaneously a prepayment in full of certain loans in the aggregate principal sum of $4,050,000.00 made by the Bank to Jeffrey M. Wilkins secured by a certain Mortgage, Assignment of Rents and Security Agreement on the real estate and personal property located at 7001 Metatec Boulevard, Dublin, Ohio (the "Wilkins Project"). 2.5 Prepayment. With respect to the Revolving Loan, the Company, if no Event of Default has occurred and is continuing, shall have the right to prepay at any time and from time to time before maturity any amount or amounts due to the Bank pursuant to this Agreement or to any note or notes executed pursuant hereto. 3. Security for the Term Loan. The Term Loan shall be secured by all of the Company's "Equipment" and the "Collateral," as such terms are defined in certain Security Agreements - Equipment executed by the Company, dated of even date herewith (the "Security Agreements"). 4. Warranties and Representations. Each corporation comprising the Company warrants and represents to the Bank: 4.1 Corporate Organization and Authority. (a) Metatec Corporation, is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida and Metatec/Discovery Systems, Inc., is a corporation duly organized, validly existing and in good standing under the laws of the State of Ohio; (b) the Company has all requisite power and authority and all necessary licenses and permits to own and operate its properties and to carry on its business as now conducted, except with respect to licenses and permits or the failure to obtain the same will not materially and adversely affect the business, properties, or condition (financial or otherwise) of the Company; and (c) the Company is not doing business or conducting any activity in any jurisdiction in which it has not duly qualified and become authorized to do business, except where the failure to do so will not materially and adversely affect the business, properties, or condition (financial or otherwise) of the Company. 4.2 Borrowing is Legal and Authorized. (a) The Board of Directors of each corporation comprising the Company has duly authorized the execution and delivery of this Agreement and of the notes, the Security Agreements and documents contemplated herein; this Agreement, the notes, the Security Agreements and other documents executed in connection with this Agreement will constitute valid and binding obligations of the Company enforceable in accordance with their respective terms; (b) the execution of this Agreement and related notes, the Security Agreements and documents and the compliance by the Company with - 2 - 6 all the provisions of this Agreement (i) are within the corporate powers of the Company; and (ii) will not conflict with, result in any breach in any of the provisions of, constitute a default under, or result in the creation of any lien or encumbrance upon any property of the Company under the provisions of, any agreement, charter instrument, bylaw, or other instrument to which the Company is a party or by which it is bound, except to the extent that any such conflict, breach, or default would not materially and adversely affect the business, properties, or condition (financial or otherwise) of the Company; (c) there are no limitations in any indenture, contract, agreement, mortgage, deed of trust or other agreement or instrument to which the Company is now a party or by which the Company is bound with respect to the payment of principal or interest on any indebtedness, or the Company's ability to incur indebtedness including the notes to be executed in connection with this Agreement. 4.3 Taxes. All tax returns required to be filed by the Company in any jurisdiction have in fact been filed, and all taxes, assessments, fees and other governmental charges upon the Company, or upon any of its respective properties, which are due and payable have been paid. The Company does not know of any proposed additional tax assessment against it. The provisions for taxes on the books of the Company for its current fiscal period are adequate in accordance with GAAP. 4.4 Compliance with Law. The Company (a) is not in violation of any laws, ordinances, governmental rules or regulations to which it is subject, including without limitation (i) any Environmental Laws, and (ii) any laws, rulings or regulations relating to the Employee Retirement Income Security Act of 1974 or Section 4975 of the Internal Revenue Code and (b) has not failed to obtain any licenses, permits, franchises or other governmental or environmental authorizations necessary to the ownership of its properties or to the conduct of its business, which violation or failure might materially and adversely affect the business, properties or condition (financial or otherwise) of the Company. 4.5 Financial Statements, Full Disclosure. The financial statements for the fiscal year ending December 3l, l993, and the fiscal period ending March 31, l994, which have been supplied to the Bank by the Company, have been prepared in accordance with GAAP and respectively fairly represent the Company's financial condition as of such dates. No material adverse change in the Company's financial condition has occurred since the latest date of the financial statements referenced in this Section 4.5. The financial statements referred to in this paragraph do not, nor does this Agreement or any written statement furnished by the Company to the Bank in connection with obtaining the Loan, contain any untrue statement of a material fact or omit a material fact necessary to make the statements contained therein or herein not misleading. The Company has disclosed to the Bank all facts which materially affect the properties, business, or condition (financial or otherwise) of the Company or the ability of the Company to perform this Agreement. 4.6 No Insolvency. On the date of the Company's entering into the Loan and after giving effect to all indebtedness of the Company (including the Loan), (a) the Company will be able to pay its obligations as they become due and payable; (b) the present fair saleable value of the Company's assets exceeds the amount that will be required to pay its probable liability on its obligations as the same become absolute and matured; (c) the sum of the Company's property at a fair valuation exceeds the Company's indebtedness; and (d) the Company will have sufficient capital to engage in its businesses. The Company's - 3 - 7 grant of collateral for the Term Loan constitutes fair consideration and reasonably equivalent value because of the receipt of the proceeds of the Loan. 4.7 Government Consent. Neither the nature of the Company or of its business or properties, nor any relationship between the Company and any other entity or person, nor any circumstance in connection with the execution of this Agreement, is such as to require a consent, approval or authorization of, or filing, registration or qualification with, any governmental authority on the part of the Company as a condition to the execution and delivery of this Agreement and the notes and documents contemplated herein, except to the extent that the failure of the Company to so obtain or make any such consent, approval, or authorization, filing, registration or qualification will not materially and adversely affect the business, properties, or condition (financial or otherwise) of the Company. 4.8 Title to Properties. The Company has good and marketable title to all the property in which it has a property interest, free from any liens and encumbrances, except as set forth on Exhibit B attached to this Agreement. the Company has not agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property whether now owned or hereafter acquired to be subject to a lien or encumbrance except as provided in this paragraph. 4.9 No Defaults. No event has occurred and no condition exists which would constitute an Event of Default pursuant to this Agreement. The Company is not in violation in any material respect of any term of any agreement, charter instrument, bylaw or other instrument to which it is a party or by which it may be bound, except for any such violation which will not materially and adversely affect the business, properties, or condition (financial or otherwise) of the Company. 4.10 Environmental Protection. The Company (a) has no actual knowledge of the permanent placement, burial or disposal of any Hazardous Substances (as hereinafter defined) on any real property owned, leased, or used by the Company (the "Premises"), of any spills, releases, discharges, leaks, or disposal of Hazardous Substances that have occurred or are presently occurring on, under, or about the Premises, or of any spills, releases, discharges, leaks or disposal of Hazardous Substances that have occurred or are occurring off the Premises as a result of the Company's improvement, operation, or use of the Premises which would result in non-compliance with any of the Environmental Laws (as hereinafter defined); (b) is and has been in compliance with all applicable Environmental Laws; (c) knows of no pending or threatened environmental civil, criminal or administrative proceedings against the Company relating to Hazardous Substances; (d) except in respect of the real property formerly owned by the Company, located at 122 South Missouri, Lakeland, Florida, knows of no facts or circumstances that would give rise to any future civil, criminal or administrative proceeding against the Company relating to Hazardous Substances; and (e) will not permit any of its employees, agents, contractors, subcontractors, or any other person occupying or present on the Premises to generate, manufacture, store, dispose or release on, about or under the Premises any Hazardous Substances which would result in the Premises not complying with the Environmental Laws. As used herein, "Hazardous Substances" shall mean and include all hazardous and toxic substances, wastes, materials, compounds, pollutants and contaminants (including, without limitation, asbestos, polychlorinated biphenyls, and petroleum - 4 - 8 products) which are included under or regulated by the Comprehensive Environmental Response, Compensation and Liability Act, as amended, 42 U.S.C. Section 9601, et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., the Water Quality Act of 1987, 33 U.S.C. Section 1251, et seq., and the Clean Air Act, 42 U.S.C. Section 7401, et seq., and any state or local statute ordinance, law, code, rule, regulation or order regulating or imposing liability (including strict liability) or standards of conduct regarding Hazardous Substances (hereinafter the "Environmental Laws"), but does not include such substances as are permanently incorporated into a structure or any part thereof in such a way as to preclude their subsequent release into the environment, or the permanent or temporary storage or disposal of household hazardous substances by tenants, and which are thereby exempt from or do not give rise to any violation of the forementioned Environmental Laws. 4.11 Warranties and Representations. On the date of each advance pursuant to the Loan, the warranties and representations set forth in Section 4 hereof shall be true and correct in all material respects on and as of such date with the same effect as though such warranties and representations had been made on and as of such date, except to the extent that such warranties and representations expressly relate to an earlier date. 4.12 Advances Under the Term Loan. Each advance request of the Company under the Term Loan shall be made by the Bank pursuant to this Agreement in an amount up to the full principal balance of the Term Loan. The Bank shall make disbursements under the Term Loan only in accordance with such disbursement instructions as the Bank may require from time to time. At any time when any set of facts or circumstances exist that, by itself, upon the giving of notice, the lapse of time, or any one or more of the foregoing, would constitute an Event of a Default under this Agreement, the Bank shall have no obligation to make further advances. 5. The Company Business Covenants. Each entity comprising the Company covenants that on and after the date of this Agreement until this Agreement is terminated pursuant to the terms hereof or so long as any of the indebtedness provided for herein remains unpaid: 5.1 Payment of Taxes and Claims. The Company will pay before they become delinquent (a) all taxes, assessments and governmental charges or levies imposed upon it or its property; and (b) all bona fide claims or demands of material suppliers, mechanics, carriers, warehousers, landlords, bailees and other like persons which, if unpaid, might result in the creation of a lien or encumbrance upon its property. 5.2 Maintenance of Properties and Corporate Existence. The Company shall (a) maintain its property in good condition and make all renewals, replacements, additions, betterments and improvements thereto which are deemed necessary by the Company; (b) maintain, with financially sound and reputable insurers, insurance with respect to its properties and business against such casualties and contingencies, of such types (including but not limited to fire and casualty, public liability, products liability, larceny, embezzlement or other criminal misappropriation insurance) in such amounts as is customary in the case of corporations of established reputations engaged in the same or a similar business and similarly situated; (c) keep true books of records and accounts in which full and correct entries will be made of all its business transactions, and reflect in its financial statements adequate accruals and - 5 - 9 appropriations to reserves to the extent required under GAAP; (d) do or cause to be done all things necessary (i) to preserve and keep in full force and effect its existence, rights and franchises needed by it to own its properties and conduct its business, except where the failure to do so will not materially and adversely affect the business, properties, or condition (financial or otherwise) of the Company, and (ii) to maintain its status as a corporation duly organized and existing and in good standing under the laws of the state of its incorporation; and (e) not be in violation of any laws, ordinances, or governmental rules and regulations or fail to obtain any licenses, permits, franchises or other governmental authorizations necessary to the ownership of its properties or to the conduct of its business, which violation or failure to obtain would materially and adversely affect the business, properties or condition (financial or otherwise) of the Company. 5.3 Sale of Assets, Merger, Subsidiaries, Tradenames. The Company (a) except (i) in the ordinary course of business, and except for (ii) non-material equipment, will not sell, lease, transfer or otherwise dispose of, any of its material assets; (b) will not without the prior written consent of the Bank, which consent shall not be withheld unreasonably, consolidate with or merge into any other entity, or permit any other entity to consolidate with or merge into it. The Company conducts business only in the name of the Company. The Company shall not acquire all or substantially all of the assets or business of any other company, person, or entity, without the prior written consent of the Bank, which consent shall not be withheld unreasonably. Metatec Corporation has no subsidiaries except that Metatec/Discovery Systems, Inc. and is a wholly-owned subsidiary of the Company and Discovery Artists, Inc. is a wholly-owned subsidiary of Metatec/Discovery Systems, Inc. The Company will not create or acquire subsidiaries or permit any of its subsidiaries or affiliates to create or acquire subsidiaries or affiliates, without the prior written consent of the Bank, which consent shall not be withheld unreasonably. In addition, the Company will not conduct business under a tradename not listed above without providing to the Bank fifteen (15) days prior written notice. 5.4 Negative Pledge. The Company will not cause or permit or agree or consent to cause or permit in the future (upon the happening of a contingency or otherwise), any of its real or personal property, whether now owned or hereafter acquired, to become subject to a lien or encumbrance, except: (i) liens on deposits required by workers' compensation, unemployment insurance, social security and other like laws; (ii) taxes, assessments, reservations, exceptions, encroachments, easements, rights of way, covenants, conditions, restrictions, leases and other similar title exceptions or encumbrances affecting real property, provided they do not in the aggregate materially detract from the value of said property or materially interfere with its use in the ordinary conduct of owning the Company's business; (iii) inchoate liens arising under ERISA to secure the contingent liability of the Company; and (iv) liens or other restrictions or encumbrances as set forth or referred to in Exhibit B attached to this Agreement or permitted in connection with borrowings in paragraph 5.5 below. In addition, the Company will not agree in favor of any creditor or third person (excluding the Bank) to provide such creditor or third person with a "negative pledge" or other covenant or agreement similar to this Section 5.4. 5.5 Other Borrowings and Contingent Liabilities. Except for (a) the Loan, (b) the existing indebtedness and obligations of the Company set forth in Exhibit C to this Agreement secured by the property also described on such Exhibit, (c) any replacement or substitute obligations for the obligations - 6 - 10 referenced on Exhibit C attached hereto, (d) indebtedness created in connection with purchase money financing of equipment or fixtures not to exceed the purchase price of the item purchased up to an aggregate amount of $100,000.00 in any one fiscal year, (e) indebtedness (including capitalized lease obligations) of the Company to any of its subsidiaries, and (f) the endorsement and negotiable instruments for deposit or collection in the ordinary course of business, the Company will not (i) create or incur any indebtedness for borrowed money or advances, including through the execution of capitalized lease agreements or (ii) guarantee, indorse or otherwise become surety for or upon the obligations of others. 5.6 Sale of Accounts, No Consignment. Other than as herein provided, the Company shall not sell, assign, or encumber any of its accounts or notes receivable. The Company shall not permit any of its inventory to be sold or transferred on consignment or acquire or possess any of its inventory on consignment. 5.7 Ownership and Management. The Company shall not voluntarily permit any material change in its ownership or management or replace or change its chief executive officer unless such a replacement or change will not materially or adversely affect the Company's business, properties or condition (financial or otherwise). 5.8 Acquisition of Capital Stock. The Company shall not redeem or acquire any of its own capital stock except through the use of the net proceeds from the simultaneous sale of an equivalent amount of its capital stock. 5.9 Compensation of Officers and Affiliated Persons. the Company shall not pay total compensation, including bonuses, fringe and other allied benefits, to any of its executive officers in an annual amount in excess of amounts that are customary for comparable companies. 5.10 Cash Dividends and Other Distributions. The Company shall not declare or pay any cash dividends which total in excess of 20% of the Company's net income after taxes each fiscal year; provided, however, that no dividends shall be declared or paid and no other distributions to shareholders shall be made if an Event of Default has occurred and is continuing under this Agreement. 5.11 Minimum Security. With respect to the Term Loan, the Company shall maintain at all times as minimum security therefor, the "Equipment" and "Collateral," as such terms are defined in the Security Agreements, on which the Bank has a first and exclusive perfected security interest, having an aggregate value, using a "forced liquidation value" or other similar method of computing value as reflected in appraisals or other methods satisfactory to the Bank, which value equals or exceeds the aggregate unpaid principal balance of the Term Loan, and if the Company fails to do so, then the Company shall immediately pay to the Bank the difference between the (i) principal balance of the Term Loan and (ii) such value. 5.12 Tangible Net Worth. The Company, on a consolidated basis, shall maintain at all times a Tangible Net Worth not less than the amounts set forth below for the periods set forth below: $15,500,000.00 beginning December 31, 1993, and continuing through and including December 30, 1994; $16,500,000.00 beginning December 31, 1994, and continuing through and including December 30, 1995; and - 7 - 11 $17,500,000.00 beginning December 31, 1995, and continuing through and including December 30, 1996. $l8,500.000.00 beginning December 31, l996, and continuing at all times thereafter. "Tangible Net Worth" shall mean, on a consolidated basis, shareholders' equity, minus the sum of all of the following: intangible assets, goodwill, deferred charges or deferred financing costs, advances, non-compete agreements, and notes and/or accounts receivable from affiliates that are not eliminated in consolidation. 5.13 Current Ratio. The Company, on a consolidated basis, shall maintain at all times a ratio of current assets to current liabilities of not less than: 1.50 to 1.00 beginning December 31, 1993, and continuing at all times thereafter. For the purposes of this Section 5.13, current liabilities shall include all amounts borrowed and outstanding pursuant to the Revolving Loan. 5.14 Ratio of Total Liabilities to Net Worth. The Company, on a consolidated basis, shall maintain at all times a ratio of total liabilities to Tangible Net Worth of not greater than: .22 to 1.00 as of December 3l, l993; and .75 to 1.00 beginning January l, l994 and continuing at all times thereafter. Solely for the purposes of the calculation of the ratio of total liabilities to Tangible Net Worth contained in this Section 5.14, the Company's capital lease obligation and the corresponding assets, each in the approximate sum of $4,800,000.00 in connection with its lease/purchase of the Wilkins Project shall be excluded from total liabilities and Tangible Net Worth. 5.15 Capital Expenditures. Except for the purchase of the Wilkins Project pursuant to an option agreement effective March 1, 1994, the Company will not make any expenditure for fixed or capital assets, including by way of the incurrence of capitalized lease obligations, expenditures for maintenance and repairs which should be capitalized in accordance with generally accepted accounting principles or otherwise in excess of the aggregate sum of $5,200,000.00 in fiscal year 1993, $l6,000,000.00 in fiscal year l994, and $5,000,000.00 in any fiscal year thereafter. 5.16 Transactions With Affiliates. Except for the lease of personal and real property from Jeffrey M. Wilkins, the Company shall not directly or indirectly enter into or permit to exist any transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with any affiliates or shareholders, on terms that are less favorable to the Company than those which could reasonably be obtained at the time from persons or entities who are not affiliated with the Company or its shareholders. "Affiliate" shall mean any individual, partnership, corporation, or other entity which, directly or indirectly, is in control of, is controlled by, or is under common control with either of the Company. For the purposes of this definition, control of such entity shall mean the power, direct or indirect, to vote five percent or more of the securities, units or other measures having ordinary voting power for the election of directors, management committees, or similar committees of such entity, or - 8 - 12 the power to direct or cause the direction of the management and policies of such entity, whether by contract or otherwise. 5.17 Maintenance of Accounts. The Company shall maintain its deposit accounts at the Bank if the Bank can provide services and rates that are equal to or more advantageous to the Company than those available at other financial institutions. 5.18 Loans and Advances. Except for loans and advances by the Company to any of its subsidiaries, the Company will not make any loans or advances to any person, corporation or entity if such loans will exceed an aggregate total outstanding at any one time of $100,000.00. 5.19 Resting of Revolving Loan. The Company shall reduce the principal balance of the Revolving Loan to zero and maintain the same at zero for a period of not less than 60 consecutive days during each fiscal year. 5.20 Environmental Compliance and Indemnification. The Company hereby indemnifies the Bank and holds the Bank harmless from and against any loss, damage, cost, expense or liability (including strict liability) directly or indirectly arising from or attributable to the generation, storage, release, threatened release, discharge, disposal or presence (whether prior to or during the term of the Loan) of Hazardous Substances on, under or about the Premises (whether by the Company or any employees, agents, contractor or subcontractors of the Company or any predecessor in title or any third persons occupying or present on the Premises), or the breach of any of the representations and warranties regarding the Premises, including, without limitation: (a) those damages or expenses arising under the Environmental Laws; (b) the costs of any repair, cleanup or detoxification of the Premises, including the soil and ground water thereof, and the preparation and implementation of any closure, remedial or other required plans; (c) damage to any natural resources; and (d) all reasonable costs and expenses incurred by the Bank in connection with clauses (a), (b) and (c) including, but not limited to reasonable attorneys' fees. The indemnification provided for herein shall not apply to any losses, liabilities, damages, injuries, expenses or costs which: (i) arise from the gross negligence or willful misconduct of the Bank, or (ii) relate to Hazardous Substances placed or disposed of on the Premises after the Bank acquires title to the Premises through foreclosure or otherwise. 6. Financial Information and Reporting. The Company shall deliver the following to the Bank: (a) within 30 days after the end of each month, financial statements, including a balance sheet and statements of income and surplus, and consolidating schedules certified by the Chairman of the Board, chief financial officer, president, treasurer, assistant treasurer or controller (any of the foregoing an "Authorized Officer") as fairly representing the Company's financial condition as of the end of such period; (b) within 30 days after the end of each month, a certificate or other statement satisfactory to the Bank, signed by an Authorized Officer, certifying the compliance of the Company with the terms of this Agreement and containing the calculations which set forth the Company's compliance with Sections 5.12, 5.13, 5.14 and 5.15 above; (c) within 90 days of the end of each fiscal year, an audited financial statement prepared in accordance with generally accepted accounting principles consistently applied by independent public accountants satisfactory to the Bank, containing a balance sheet, statements of income and surplus, - 9 - 13 statements of cash flows and reconciliation of capital accounts, along with any management letters written by such accountants and consolidating schedules; (d) concurrently with the filing or release, as the case may be, copies of all Securities and Exchange Commission disclosures, filings, documents or any press releases; (e) immediately upon becoming aware of the existence of any condition or event which constitutes an Event of Default, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto; and (f) at the request of the Bank, such other information as the Bank may from time to time reasonably require. 7. Default. 7.1 Events of Default. An "Event of Default" shall exist if any of the following occurs and is continuing: (a) the Company fails to make any payment of principal or interest on any note executed in connection with this Agreement on or before five days after the date such payment is due; (b) the Company fails to perform or observe any covenant contained in Sections 2.3, 5.1, 5.2(b), 5.3(b), 5.4, 5.5, 5.6, 5.7, 5.8, 5.10 and 5.11 of this Agreement; (c) the Company fails to perform or observe any covenant contained in Sections 5.2(a), (c) or (e), 5.3(a) or 6 of this Agreement, and such failure continues for more than 10 days after such failure shall first become known to any officer of the Company; (d) the Company fails to perform or observe any agreement or covenant contained in the Security Agreements, and such failure continues for more than ten (10) days after such failure shall first become known to any officer of the Company; (e) the Company fails to comply with any other provision of this Agreement or the Company fails to perform or observe any covenant contained in any other agreement in favor of the Bank, and such failure continues for more than 30 days after such failure shall first become known to any officer of the Company; (f) any warranty, representation or other statement by or on behalf of the Company contained in this Agreement or in any instrument furnished in compliance with or in reference to this Agreement is false or misleading in any material respect when made; (g) the Company becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, receiver or liquidator or institutes bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings; (h) bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings are instituted against the Company, and such proceeding is not dismissed within 60 days after filing of such proceeding; (i) a final judgment or judgments for the payment of money aggregating in excess of $250,000.00 is or are outstanding against the Company and no stay of execution is in effect; (j) the occurrence of any breach, default, or event of default permitting the acceleration of the maturity of certain indebtedness of Jeffrey M. Wilkins to the Bank, evidenced by certain promissory notes in the original principal sum of $3,500,000.00, or in the original principal sum of $550,000.00, dated April 13, 1994, or by one or more notes given in substitution therefor or renewal or replacement thereof; (k) the occurrence of any event of default or event permitting the acceleration of the maturity of any indebtedness of the Company to the Bank, any of the Bank's affiliates, or any other person, corporation or entity under any material indenture, agreement or undertaking. 7.2 Default Remedies. If an Event of Default exists, the Bank may immediately exercise any right, power or remedy permitted to the Bank by law or any provision of this Agreement, and shall have, in particular, without limiting the generality of the foregoing, the right to declare the entire - 10 - 14 principal and all interest accrued on all notes then outstanding pursuant to this Agreement to be forthwith due and payable, without any presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Company. 8. Miscellaneous. 8.1 Notices. (a) All communications under this Agreement or under the notes executed pursuant hereto shall be in writing and shall be sent by facsimile, followed by first class mail, postage prepaid, (1) if to the Bank, at the following address, or at such other address as may have been furnished in writing to the Company by the Bank: The Huntington National the Bank 41 South High Street Columbus, Ohio 43215 Attn: Daniel W. Huffman Assistant Vice President Fax: 614-480-3066 with a copy to Timothy E. Grady, Esq. PORTER, WRIGHT, MORRIS & ARTHUR 41 South High Street Columbus, Ohio 43215 Fax: 614-227-2100 (2) if to the Company, at the following address, or at such other address as may have been furnished in writing to the Bank by the Company: Metatec Corporation 7001 Metatec Boulevard Dublin, Ohio 43017 Attn: Jeffrey M. Wilkins Metatec/Discovery Systems, Inc. 7001 Metatec Boulevard Dublin, Ohio 43017 Attn: Jeffrey M. Wilkins with a copy to Gary A. Wadman, Esq. BAKER & HOSTETLER 65 East State Street Columbus, Ohio 43215 Fax: 614-462-2616 (b) any notice so addressed, which is sent by facsimile and mailed by registered or certified mail shall be deemed to be given when so sent by facsimile. 8.2 Reproduction of Documents. This Agreement and all documents relating hereto, including, without limitation, (a) consents, waivers and modifications which may hereafter be executed, (b) documents received by the Bank at the closing or otherwise, and (c) financial statements, certificates and other information previously or hereafter furnished to the Bank, may be reproduced by the Bank by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process and the Bank may destroy any original document so reproduced. The Company and the Bank agree and stipulate that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not - 11 - 15 such reproduction was made by the Bank in the regular course of business) and that any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. 8.3 Survival, Successors and Assigns. All warranties, representations, and covenants made by the Company herein or on any certificate or other instrument delivered by it or on its behalf under this Agreement shall be considered to have been relied upon by the Bank and shall survive the closing of the Loans regardless of any investigation made by the Bank on its behalf. All statements in any such certificate or other instrument shall constitute warranties and representations by the Company. This Agreement shall inure to the benefit of and be binding upon the heirs, successors and assigns of each of the parties. 8.4 Amendment and Waiver, Duplicate Originals. This Agreement may be amended, and the observance of any term of this Agreement may be waived, with (and only with) the written consent of the Company and the Bank; provided however that nothing herein shall change the Bank's good faith discretion, to the extent set forth elsewhere in this Agreement to make advances, determinations, decisions or to take or refrain from taking other actions. No delay or failure or other course of conduct by the Bank in the exercise of any power or right shall operate as a waiver thereof; nor shall any single or partial exercise of the same preclude any other or further exercise thereof, or the exercise of any other power or right. Two or more duplicate originals of this Agreement may be signed by the parties, each of which shall be an original but all of which together shall constitute one and the same instrument. 8.5 Uniform Commercial Code and Generally Accepted Accounting Principles. Unless the context otherwise requires, all terms used herein which are defined in the Uniform Commercial Code as enacted in Ohio shall have the meaning stated therein, and all accounting terms shall be determined in accordance with generally accepted accounting principles, consistently applied ("GAAP"). "Fiscal Year" shall mean a 12 month period beginning January 1 and ending December 31 of each calendar year. 8.6 Enforceability and Governing Law. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction, as to such jurisdiction, shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. No delay or omission on the part of the Bank in exercising any right shall operate as a waiver of such right or any other right. All of the Bank's rights and remedies, whether evidenced hereby or by any other Agreement or instrument, shall be cumulative and may be exercised singularly or concurrently. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. The Company agrees that any legal suit, action or proceeding arising out of or relating to this Agreement may be instituted in a state or federal court of appropriate subject matter jurisdiction in the State of Ohio; waives any objection which it may have now or hereafter to the venue of any suit, action or proceeding; and irrevocably submits to the jurisdiction of any such court in any such suit, action or proceeding. 8.7 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT - 12 - 16 EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. 9. Definitions. "Affiliate" is defined in Section 5.16. "Agreement" is defined in the Preamble. "Authorized Officer" is defined in Section 6. "Bank" is defined in the Preamble. "Company" is defined in the Preamble. "Environmental Laws" is defined in Section 4.10. "Fiscal Year" is defined in Section 8.5. "GAAP" is defined in Section 8.5. "Hazardous Substances" is defined in Section 4.10. "Loan" is defined in Section 1.2. "Premises" is defined in Section 4.10. "Project" is defined in Section 2.3. "Revolving Loan" is defined in Section 1.2. "Security Agreements" is defined in Section 3. "Tangible Net Worth" is defined in Section 5.12. "Term Loan" is defined in Section 1.1. "Wilkins Project" is defined in Section 2.4. Each of the parties to this Agreement has executed the Agreement as of the date set forth in the Preamble above. COMPANY: METATEC CORPORATION By /s/ William H. Largent -------------------------------- Its /s/ Vice President-Finance -------------------------------- - 13 - 17 METATEC/DISCOVERY SYSTEMS, INC. By /s/ Gergory T. Tillar ------------------------------- Its /s/ Executive Vice President ------------------------------- BANK: THE HUNTINGTON NATIONAL BANK By /s/ Daniel W. Huffman ------------------------------- Its /s/ Assistant Vice President ------------------------------- - 14 - 18 EXHIBIT A-1 THE HUNTINGTON NATIONAL BANK REVOLVING NOTE =============================================================================== City Office ____________________ Division _________ Branch ____ / / Secured Account No. _____________________________ Note No. ___________ /XX/ Unsecured Account Name METATEC CORPORATION AND METATEC/DISCOVERY SYSTEMS, INC. /XX/ Corporations / / Partnership / / Individual/Proprietorship / / Other ____________________________________________________________________ =============================================================================== $2,000,000.00 Columbus, Ohio May 13, 1994 FOR VALUE RECEIVED, the undersigned, jointly and severally, promise to pay to the order of The Huntington National Bank (hereinafter called the "Bank," which term shall include any holder hereof) at such place as the Bank may designate or, in the absence of such designation, at any of the Bank's offices, the sum of Two Million Dollars ($2,000,000.00) or so much thereof as shall have been advanced by the Bank at any time and not thereafter repaid (hereinafter referred to as "Principal Sum") together with interest as hereinafter provided and payable at the time and in the manner hereinafter provided. The proceeds of the loan evidenced hereby may be advanced, repaid and readvanced in partial amounts during the term of this revolving note (this "Note") and prior to maturity. Each such advance shall be made to the undersigned upon receipt by the Bank of the undersigned's application therefor and disbursement instructions, which shall be in such form as the Bank shall from time to time prescribe. The Bank shall be entitled to rely on any oral or telephonic communication requesting an advance and/or providing disbursement instructions hereunder, which shall be received by it in good faith from anyone reasonably believed by the Bank to be the undersigned, or the undersigned's authorized agent. The undersigned agree that all advances made by the Bank will be evidenced by entries made by the Bank into its electronic data processing system and/or internal memoranda maintained by the Bank. The undersigned further agree that the sum or sums shown on the most recent printout from the Bank's electronic data processing system and/or on such memoranda shall be rebuttably presumptive evidence of the amount of the Principal Sum and of the amount of any accrued interest. This Note is executed and the advances contemplated hereunder are to be made pursuant to a Loan Agreement by and between the undersigned and the Bank dated May 13, 1994, and all amendments, modifications, and supplements thereto from time to time (hereinafter called the "Loan Agreement"), and all the covenants, representations, agreements, terms, and conditions contained therein, including but not limited to additional conditions of default, are incorporated herein as if fully rewritten. INTEREST Interest will accrue on the unpaid balance of the Principal Sum until paid at a variable rate of interest per annum, which shall change in the manner set forth below, equal to the Prime Commercial Rate. Upon the occurrence of an "Event of Default" pursuant to the Loan Agreement, interest will accrue on the unpaid balance of the Principal Sum and unpaid interest, if any, at a variable rate of interest per annum, which shall change in the manner set forth below, equal to three percentage points in excess of the Prime Commercial Rate. 19 All interest shall be calculated on the basis of a 360 day year for the actual number of days the Principal Sum or any part thereof remains unpaid. As used herein, "Prime Commercial Rate" shall mean the rate established by the Bank from time to time based on its consideration of economic, money market, business and competitive factors. The Prime Commercial Rate is not necessarily the Bank's most favored rate. Subject to any maximum or minimum interest rate limitation specified herein or by applicable law, any variable rate of interest on the obligation evidenced hereby shall change automatically without notice to the undersigned immediately with each change in the Prime Commercial Rate. MANNER OF PAYMENT The Principal Sum shall be due and payable on April 30, 1995, and at maturity, whether by demand, acceleration or otherwise. Accrued interest shall be due and payable monthly beginning on July 1, 1994, and continuing on the first day of each month thereafter, and at maturity, whether by demand, acceleration or otherwise. LATE CHARGE Any installment or other payment not made within ten (10) days of the date such payment or installment is due shall be subject to a late charge equal to 5% of the amount of the installment or payment. DEFAULT Upon the occurrence of any of the following events: (a) the undersigned fails to make any payment of interest or of the Principal Sum on or before the date such payment is due; (b) an "Event of Default" under the Loan Agreement shall have occurred and be continuing; then the Bank may, at its option, without notice or demand, accelerate the maturity of the obligations evidenced hereby, which obligations shall become immediately due and payable. In the event the Bank shall institute any action for the enforcement or collection of the obligations evidenced hereby, the undersigned agrees to pay all costs and expenses of such action, including reasonable attorneys' fees, to the extent permitted by law. GENERAL PROVISIONS Each of the parties executing this Note, and any indorser, surety, or guarantor, hereby jointly and severally waive presentment, notice of dishonor, protest, notice of protest, and diligence in bringing suit against any party hereto, waive the defenses of impairment of collateral for the obligation evidenced hereby, impairment of a person against whom the Bank has any right of recourse, and any defenses of any accommodation maker and consent that without discharging any of them the time of payment and any other provision of this promissory note may be extended or modified an unlimited number of times before or after maturity without notice to the undersigned. Each of the undersigned jointly and severally agrees that it will pay the obligations evidenced hereby, irrespective of any action or lack of action on the Bank's part in connection with the acquisition, perfection, possession, enforcement, disposition, or modification of all the obligations evidenced hereby or any and all security therefore, and no omission or delay on the Bank's part in exercising any right against, or taking any action to collect from or pursue the Bank's remedies against any party hereto will release, discharge, or modify the duties of the undersigned, or any of them, to make payments hereunder. Each of the undersigned agrees that the Bank, without notice to or further consent from the undersigned, may release or modify any collateral, security, document or other guaranties now held or hereafter acquired, or substitute other collateral, security or other guaranties, and no such action - 2 - 20 will release, discharge or modify the duties of the undersigned, or any of them, hereunder. Each of the undersigned agrees that the Bank will not be required to pursue or exhaust any of its rights or remedies against the undersigned, or any of them, or any guarantors of the obligations evidenced hereby with respect to the payment of any said obligations, or to pursue, exhaust or preserve any of the Bank's rights or remedies with respect to any collateral, security or other guaranties given to secure said obligations. Each of the undersigned waives any claim or other right which it might now have or hereafter acquire against any other person or entity that is primarily or contingently liable on the obligations that arise from the existence or performance of each of the undersigned's obligations under this Note, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, or any right to participate in any claim or remedy of the Bank or any collateral security which the Bank now has or hereafter acquires, whether such claim, remedy or right arises in equity, under contract or statute, at common law, or otherwise. The obligations evidenced hereby may from time to time be evidenced by another note or notes given in substitution, renewal or extension hereof. Any security interest or mortgage which secures the obligations evidenced hereby shall remain in full force and effect notwithstanding any such substitution, renewal, or extension. The captions used herein are for references only and shall not be deemed a part of this Note. If any of the terms or provisions of this Note shall be deemed unenforceable, the enforceability of the remaining terms and provisions shall not be affected. This Note shall be governed by and construed in accordance with the law of the State of Ohio. WAIVER OF RIGHT TO TRIAL BY JURY EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN THE UNDERSIGNED, OR ANY OF THEM, AND THE BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE OR DISPUTES UNSUITABLE FOR TRIAL BY JURY. ACCORDINGLY, EACH OF THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH. WARRANT OF ATTORNEY Each of the undersigned authorizes any attorney at law to appear in any Court of Record in the State of Ohio or in any state or territory of the United States after the above indebtedness becomes due, whether by acceleration or otherwise, to waive the issuing and service of process, and to confess judgment against any one or more of the undersigned in favor of the Bank for the amount then appearing due together with costs of suit, and thereupon to waive all errors and all rights of appeal and stays of execution. No such judgment or judgments against less than all of the undersigned shall be a bar to a subsequent judgment or judgments against any one or more of the undersigned against whom judgment has not been obtained hereon, this being a joint and several warrant of attorney to confess judgment. WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE. METATEC CORPORATION By:____________________________________ Its:___________________________________ - 3 - 21 WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE. METATEC/DISCOVERY SYSTEMS, INC. By:____________________________________ Its:___________________________________ - 4 - 22 EXHIBIT A-2 THE HUNTINGTON NATIONAL BANK DRAW/TERM NOTE =============================================================================== City Office Division Branch [XX] Secured -------------------- --------- ---- Account No. Note No. [ ] Unsecured ----------------------------- ------------ Account Name METATEC CORPORATION AND METATEC/DISCOVERY SYSTEMS, INC. [XX] Corporations [ ] Partnership [ ] Individual/Proprietorship [ ] Other -------------------------------------------------------------------- =============================================================================== $4,300,000.00 Columbus, Ohio May 13, 1994 FOR VALUE RECEIVED, the undersigned, jointly and severally, promise to pay to the order of The Huntington National Bank (hereinafter called the "Bank," which term shall include any holder hereof) at such place as the Bank may designate or, in the absence of such designation, at any of the Bank's offices, the sum of Four Million Three Hundred Thousand Dollars ($4,300,000.00) or so much thereof as shall have been advanced by the Bank at any time and not thereafter repaid (hereinafter referred to as "Principal Sum") together with interest as hereinafter provided and payable at the time and in the manner hereinafter provided. The proceeds of the loan evidenced hereby may be advanced in partial amounts prior to November 30, 1994, at which time the ability of the undersigned to obtain advances hereunder shall terminate. Each such advance shall be made to the undersigned upon receipt by the Bank of the undersigned's application therefor and disbursement instructions, which shall be in such form as the Bank shall from time to time prescribe. The Bank shall be entitled to rely on any oral or telephonic communication requesting an advance and/or providing disbursement instructions hereunder, which shall be received by it in good faith from anyone reasonably believed by the Bank to be the undersigned, or the undersigned's authorized agent. The undersigned agree that all advances made by the Bank will be evidenced by entries made by the Bank into its electronic data processing system and/or internal memoranda maintained by the Bank. The undersigned further agree that the sum or sums shown on the most recent printout from the Bank's electronic data processing system and/or on such memoranda shall be rebuttably presumptive evidence of the amount of the Principal Sum and of the amount of any accrued interest. This draw/term note (this "Note") is executed and the advances contemplated hereunder are to be made pursuant to a Loan Agreement by and between the undersigned and the Bank dated May 13, 1994, and all amendments, modifications, and supplements thereto from time to time (hereinafter called the "Loan Agreement"), and all the covenants, representations, agreements, terms, and conditions contained therein, including but not limited to additional conditions of default, are incorporated herein as if fully rewritten. INTEREST Interest will accrue on the unpaid balance of the Principal Sum until paid at a variable rate of interest per annum, which shall change in the manner set forth below, equal to the Prime Commercial Rate for the period beginning with the date hereof, and continuing through and including November 30, 1994. Beginning on December 1, 1994, interest will accrue on the unpaid balance of the Principal Sum until paid at a variable rate of interest per annum, which shall change in the manner set forth below, equal to one-half of one percentage point in excess of the Prime Commercial Rate. 23 Upon the occurrence of an "Event of Default" pursuant to the Loan Agreement, interest will accrue on the unpaid balance of the Principal Sum and unpaid interest, if any, at a variable rate of interest per annum, which shall change in the manner set forth below, equal to three and one-half percentage points in excess of the Prime Commercial Rate. All interest shall be calculated on the basis of a 360 day year for the actual number of days the Principal Sum or any part thereof remains unpaid. As used herein, "Prime Commercial Rate" shall mean the rate established by the Bank from time to time based on its consideration of economic, money market, business and competitive factors. The Prime Commercial Rate is not necessarily the Bank's most favored rate. Subject to any maximum or minimum interest rate limitation specified herein or by applicable law, any variable rate of interest on the obligation evidenced hereby shall change automatically without notice to the undersigned immediately with each change in the Prime Commercial Rate. MANNER OF PAYMENT Accrued interest shall be due and payable monthly beginning on , 1994, and continuing on the first day of each month thereafter, - -------------- and at maturity, whether by demand, acceleration or otherwise. The Principal Sum shall be due and payable in sixty consecutive monthly installments beginning on December 31, 1994, and continuing on the last day of each month thereafter, and at maturity, whether by demand, acceleration or otherwise. Each installment of Principal Sum shall be in an amount equal to one-sixtieth (1/60) of the Principal Sum outstanding as of November 30, 1994, except the final installment shall be for the unpaid balance. LATE CHARGE Any installment or other payment not made within ten (10) days of the date such payment or installment is due shall be subject to a late charge equal to 5% of the amount of the installment or payment. SECURITY This Note is secured by the security interests and assignments granted and/or referenced in a certain Security Agreement - Equipment executed by each of the undersigned dated of even date herewith. DEFAULT Upon the occurrence of any of the following events: (a) the undersigned fails to make any payment of interest or of the Principal Sum on or before five days after the date such payment is due; or (b) an "Event of Default" under the terms of the Loan Agreement shall have occurred and be continuing; then the Bank may, at its option, without notice or demand, accelerate the maturity of the obligations evidenced hereby, which obligations shall become immediately due and payable. In the event the Bank shall institute any action for the enforcement or collection of the obligations evidenced hereby, the undersigned agrees to pay all costs and expenses of such action, including reasonable attorneys' fees, to the extent permitted by law. GENERAL PROVISIONS Each of the parties executing this Note, and any indorser, surety, or guarantor, hereby jointly and severally waive presentment, notice of dishonor, protest, notice of protest, and diligence in bringing suit against any party hereto, waive the defenses of impairment of collateral for the obligation evidenced hereby, impairment of a person against whom the Bank has any right of recourse, and any defenses of any accommodation maker and consent that - 2 - 24 without discharging any of them the time of payment and any other provision of this promissory note may be extended or modified an unlimited number of times before or after maturity without notice to the undersigned. Each of the undersigned jointly and severally agrees that it will pay the obligations evidenced hereby, irrespective of any action or lack of action on the Bank's part in connection with the acquisition, perfection, possession, enforcement, disposition, or modification of all the obligations evidenced hereby or any and all security therefore, and no omission or delay on the Bank's part in exercising any right against, or taking any action to collect from or pursue the Bank's remedies against any party hereto will release, discharge, or modify the duties of the undersigned, or any of them, to make payments hereunder. Each of the undersigned agrees that the Bank, without notice to or further consent from the undersigned, may release or modify any collateral, security, document or other guaranties now held or hereafter acquired, or substitute other collateral, security or other guaranties, and no such action will release, discharge or modify the duties of the undersigned, or any of them, hereunder. Each of the undersigned agrees that the Bank will not be required to pursue or exhaust any of its rights or remedies against the undersigned, or any of them, or any guarantors of the obligations evidenced hereby with respect to the payment of any said obligations, or to pursue, exhaust or preserve any of the Bank's rights or remedies with respect to any collateral, security or other guaranties given to secure said obligations. Each of the undersigned waives any claim or other right which it might now have or hereafter acquire against any other person or entity that is primarily or contingently liable on the obligations that arise from the existence or performance of each of the undersigned's obligations under this Note, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, or any right to participate in any claim or remedy of the Bank or any collateral security which the Bank now has or hereafter acquires, whether such claim, remedy or right arises in equity, under contract or statute, at common law, or otherwise. The obligations evidenced hereby may from time to time be evidenced by another note or notes given in substitution, renewal or extension hereof. Any security interest or mortgage which secures the obligations evidenced hereby shall remain in full force and effect notwithstanding any such substitution, renewal, or extension. The captions used herein are for references only and shall not be deemed a part of this Note. If any of the terms or provisions of this Note shall be deemed unenforceable, the enforceability of the remaining terms and provisions shall not be affected. This Note shall be governed by and construed in accordance with the law of the State of Ohio. WAIVER OF RIGHT TO TRIAL BY JURY EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT, AS TO ANY AND ALL DISPUTES THAT MAY ARISE BETWEEN THE UNDERSIGNED, OR ANY OF THEM, AND THE BANK, THE COMMERCIAL NATURE OF THE TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE OR DISPUTES UNSUITABLE FOR TRIAL BY JURY. ACCORDINGLY, EACH OF THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH. WARRANT OF ATTORNEY Each of the undersigned authorizes any attorney at law to appear in any Court of Record in the State of Ohio or in any state or territory of the United States after the above indebtedness becomes due, whether by acceleration or otherwise, to waive the issuing and service of process, and to confess judgment against any one or more of the undersigned in favor of the Bank for the amount then appearing due together with costs of suit, and thereupon to waive all errors and all rights of appeal and stays of execution. No such judgment or judgments against less than all of the undersigned shall be a bar to a subsequent judgment or judgments against any one or more of the undersigned against whom judgment has not been obtained hereon, this being a joint and several warrant of attorney to confess judgment. - 3 - 25 WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE. METATEC CORPORATION By: ------------------------------------------ Its: ----------------------------------------- WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE. METATEC/DISCOVERY SYSTEMS, INC. By: ------------------------------------------ Its: ----------------------------------------- - 4 - 26 EXHIBIT B SCHEDULE OF PERMITTED ENCUMBRANCES
Maximum Amount Secured Party Description of Items of Obligation - ------------- -------------------- ------------- METATEC CORPORATION: - ------------------- AGFA Financial Proset 9550 System See below Services, Inc. METATEC/DISCOVERY SYSTEMS, INC.: - ------------------------------- AT&T Credit System 25 Corporation Telecommunications Equipment Pitney Bowes All Equipment manufactured, Credit Corporation sold or distributed by Secured Party, Pitney Bowes, Inc., Monarch Marketing Systems, Inc., Dictaphone Corp. or V.I.P. Xerox Corporation Xerox 5100 Copier Sum of all the foregoing is approximately $225,000 Huntington National Bank Prior encumbrance on leasehold interest Trade payables Normal terms Jeffrey M. Wilkins Office and $4,800,000 manufacturing facility
EX-10.D 5 METATEC EX-10(D) 1 Exhibit 10(d) FIRST AMENDMENT TO LOAN AGREEMENT THIS FIRST AMENDMENT (this "Amendment") to the Loan Agreement is entered into as of the 1st day of September, 1994, by and between Metatec Corporation, Metatec/Discovery Systems, Inc. (collectively, on a joint and several basis, the "Company") and The Huntington National Bank (the "Bank"). RECITALS: A. As of May 13, 1994, the Company and the Bank executed a certain Loan Agreement (the "Loan Agreement") which sets forth the terms of certain extensions of credit to the Company; and B. In connection with the Loan Agreement, the Company executed and delivered to the Bank certain other loan documents, a revolving promissory note, a draw term promissory note, a security agreement for equipment, uniform commercial code financing statements, certificates, agreements, and instruments in connection with the indebtedness referred to in the Loan Agreement (all of the foregoing are collectively referred to as the "Loan Documents"); and C. The Company and the Bank desire to extend additional credit to the Company subject to specific terms and conditions. NOW, THEREFORE, in consideration of the mutual covenants, agreements and promises contained herein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the parties hereto for themselves and their successors and assigns do hereby agree, represent and warrant as follows: 1. Definitions. All capitalized terms not otherwise defined herein shall have the same meanings ascribed to them in the Loan Agreement. 2. A new Section 1.4 is hereby added to the Loan Agreement and shall recite in its entirety: 1.4 The Mortgage Loan. The Bank, subject to the terms and conditions hereof, will make loans and advances to the Company on a secured basis in the principal amount of $4,800,000.00 (the "Mortgage Loan"). 3. The first sentence of Section 1.3, "Limitations of Advances," of the Loan Agreement is hereby amended to recite in its entirety: The Term Loan, the Revolving Loan, and the Mortgage Loan are hereinafter sometimes collectively referred to as the "Loan." The remainder of Section 1.3 shall remain as originally written. 4. Section 2.1, "Interest Rates and Evidence of Loan," is hereby amended to recite in its entirety: - 1 - 2 Interest Rates and Evidence of Loan. The Company agrees to pay the Bank monthly interest on the unpaid balance of the Loan at the rates of interest and in the manner set forth in the notes evidencing the Loan. In addition, the Company agrees to make principal payments in the manner set forth in the notes evidencing the Loan. The Loan shall be evidenced by promissory notes executed of even date herewith and by a mortgage note dated September 1, 1994, or evidenced by promissory notes subsequently executed in substitution therefor or addition therewith, each in substantially the form set forth in Exhibits A-1 and A-2 to the Loan Agreement and in Exhibit A-3 to a certain First Amendment to Loan Agreement dated September 1, 1994 Repayment of the Loan shall be made in accordance with the terms of the notes then outstanding pursuant to the Loan Agreement and this Amendment. Each advance request of the Company under the Term Loan, the Revolving Loan or the Mortgage Loan shall be accompanied by such documents or communications acceptable to the Bank in its sole and absolute discretion. 5. Section 2.3, "Use of Proceeds," is hereby amended to add the following sentence at the end of Section 2.3: The net proceeds of the Mortgage Loan will be used (a) to finance the purchase of approximately seven acres of real estate together with the improvements thereon currently leased to the Company and owned by Jeffrey M. Wilkins and (b) to finance the permanent improvements to the Company's facility located on approximately eight acres of adjoining real estate. 6. A new Section 3.2 is hereby added to the Loan Agreement and shall recite in its entirety: 3.2 Security for the Mortgage Loan. The Mortgage Loan shall be secured by a first and exclusive mortgage, assignment of rents and security interest in real estate located at 7001 Metatec Blvd., Columbus, Ohio, further described in a certain Open-End Mortgage, Assignment of Rents and Security Agreement executed by the Company, dated of even date herewith (the "Mortgage"). 7. Section 7.1, "Events of Default," subsection (d) is hereby amended to recite in its entirety: - 2 - 3 (d) The Company fails to perform or observe any agreement, term, or covenant contained in the Security Agreements, or in the Mortgage, and such failure continues for more than ten (10) days after such failure shall first become known to any officer of the Company; 8. Mortgage Note. Concurrently with the execution of this Amendment, the Company shall execute and deliver to the Bank a promissory note the "Mortgage Note" in the form of Exhibit A-3 to this Amendment to evidence the "Mortgage Loan," as that term is defined in the Loan Agreement, as amended hereby. 9. Conditions of Effectiveness. This Amendment shall become effective as of September 1, 1994, upon satisfaction of all of the following conditions precedent: (a) The Bank shall have received two duly executed copies of the First Amendment to Loan Agreement and such other certificates, instruments, documents, agreements, and opinions of counsel as may be required by the Bank, each of which shall be in form and substance satisfactory to the Bank and its counsel; and (b) The representations contained in paragraph 10 below shall be true and accurate; and (c) The Company shall execute and deliver to the Bank all of the documents required by, and shall have performed and complied to the satisfaction of the Bank and its counsel with all the agreements and conditions contained in Exhibit 9(c) to this Amendment (see conditions on Closing Memo). 10. Representations. The Company represents and warrants that after giving effect to this Amendment (a) each and every one of the representations and warranties made by or on behalf of the Company in the Loan Agreement or in the Loan Documents is true and correct in all respects on and as of the date hereof, except to the extent that any of such representations and warranties related, by the express terms thereof, solely to a date prior hereto; (b) the Company has duly and properly performed, complied with and observed each of its covenants, agreements and obligations contained in the Loan Agreement and Loan Documents; and (c) no event has occurred or is continuing, and no condition exists which would constitute an Event of Default. 11. Amendment to Loan Agreement. (a) Upon the effectiveness of this Amendment, each reference in the Loan Agreement to "this Agreement" "hereunder," "hereof," "herein" or words of similar import, and each reference in the Loan Documents to the Loan Agreement, shall mean and be a reference to the Loan Agreement as amended hereby. (b) Except as modified herein, all of the representations, warranties, terms, convenants and conditions of the Loan Agreement, the Loan Documents and all other agreements executed in connection therewith shall remain as written originally and in full force and effect in accordance with their respective terms, and nothing herein shall affect, modify, - 3 - 4 limit or impair any of the rights and powers which the Bank may have thereunder. (c) The amendment set forth herein shall be limited precisely as provided for herein, and shall not be deemed to be a waiver of, amendment of, consent to or modification of any of the Bank's rights under or of any other term or provisions of the Loan Agreement, any Loan Document, or other agreement executed in connection therewith, or of any term or provision of any other instrument referred to therein or herein or of any transaction or future action on the part of the Company which would require the consent of the Bank. (d) The Company ratifies and confirms each term, provision, condition and covenant set forth in the Loan Agreement and the Loan Documents and acknowledges that the agreement set forth therein continue to be legal, valid and binding agreements, and enforceable in accordance with their respective terms. 12. Authority. The Company hereby represents and warrants to the Bank that (a) the Company has legal power and authority to execute and deliver the within Amendment; (b) the officer executing the within Amendment on behalf of the Company has been duly authorized to execute and deliver the same and bind the Company with respect to the provisions provided for herein; (c) the execution and delivery hereof by the Company and the performance and observance by the Company of the provisions hereof do not violate or conflict with the articles of incorporation, regulations or by-laws of the Company; (d) the execution and delivery hereof by the Company and the performance and observance by the Company of the provisions hereof do not violate or conflict with any law applicable to the Company or result in the breach of any provision of or constitute a default under any agreement, instrument or document binding upon or enforceable against the Company, except to the extent that such violation, conflict, breach, or default will not materially and adversely affect the business, properties or condition (financial or otherwise) of the Company; and (e) this Amendment constitutes a valid and legally binding obligation upon the Company in every respect. 13. Counterparts. This Amendment may be executed in two or more counterparts, each of which, when so executed and delivered, shall be an original, but all of which together shall constitute one and the same document. Separate counterparts may be executed with the same effect as if all parties had executed the same counterparts. 14. Governing Law. This Amendment shall be governed by and construed in accordance with the law of the State of Ohio. IN WITNESS WHEREOF, the Company and the Bank have hereunto set their hands at Columbus, Ohio on the date first set forth above. THE COMPANY: METATEC CORPORATION By: /s/ William H. Largent -------------------------------------- Its: Vice President - Finance ------------------------------------- - 4 - 5 METATEC/DISCOVERY SYSTEMS, INC. By: /s/ Gregory T. Tillar -------------------------------------- Its: C.O.O. ------------------------------------- THE BANK: THE HUNTINGTON NATIONAL BANK By: /s/ Daniel W. Huffman ------------------------------------- Its: Assistant Vice President ------------------------------------ - 5 - 6 EXHIBIT A-3 THE HUNTINGTON NATIONAL BANK MORTGAGE NOTE =============================================================================== City Office Division Branch [X] Secured ---------------- ---------- ---------- Account No. Note No. [ ] Unsecured ----------------------------- ------------ Account Name METATEC CORPORATION AND METATEC/DISCOVERY SYSTEMS, INC. [XXX] corporation [ ] partnership [ ] individual/proprietorship [ ] other ------------------------------------------------------------------- =============================================================================== $4,800,000.00 Columbus, Ohio September 1, 1994 FOR VALUE RECEIVED, the undersigned, jointly and severally, promise to pay to the order of The Huntington National Bank (hereinafter "Bank," which term shall include any holder hereof) at its office located at 41 South High Street, Columbus, Ohio, or at such other place as Bank may designate, Four Million Eight Hundred Thousand Dollars ($4,800,000.00) (hereinafter the "Principal Sum"), together with interest from the date of disbursement at the applicable rate set forth below. The undersigned promise to pay the Principal Sum and the interest thereon at the times and in the manner hereinafter provided in this note (this "Note"). This Note is executed and the advance contemplated hereunder are to be made pursuant to a Loan Agreement by and between the undersigned and the Bank dated May 13, 1994, and a First Amendment to Loan Agreement by and between the undersigned and the Bank dated September 1, 1994, and all amendments, modifications, and supplements thereto from time to time (hereinafter called the "Loan Agreement"), and all the covenants, representations, agreements, terms, and conditions contained therein, including but not limited to additional conditions of default, are incorporated herein as if fully rewritten. INTEREST Interest will accrue on the unpaid balance of the Principal Sum until paid at a variable interest rate equal to one-half of one percent (1/2%) per annum in excess of the Prime Commercial Rate of The Huntington National Bank from time to time in effect. MANNER OF PAYMENT Payments only of accrued interest on the Principal Sum shall be due and payable beginning October 1, 1994, and continuing on the first day of each month thereafter through and including January 1, 1995. Thereafter, the Principal Sum and accrued interest shall be due and payable in thirty-six consecutive monthly payments of $46,566.74 beginning February 1, 1995, and continuing on the first day of each month thereafter until maturity, whether maturity occurs by lapse of time or acceleration, or otherwise; provided, however, if the monthly installments made during any calendar quarter shall be insufficient to pay the accrued interest on the Principal Sum plus the scheduled principal reduction for such calendar quarter pursuant to the amortization schedule attached hereto as Exhibit A (the "Amortization Schedule"), the undersigned, once each calendar quarter, within five days after notice from the Bank of additional amounts due and payable of the Principal Sum, agrees to pay such additional payments of the Principal Sum as shall be required to reduce the Principal Sum to an amount 7 not exceeding the scheduled Principal Sum under the Amortization Schedule as of the end of such calendar quarter. One final payment in the amount of the unpaid principal balance and accrued, unpaid interest shall be due and payable on January 1, 1998 (hereinafter the "Maturity Date"). All interest shall be calculated on the basis of a 360-day year for the actual number of days the Principal Sum or any part thereof remains unpaid. Upon the occurrence of an "Event of Default" pursuant to the Loan Agreement, interest will accrue on the unpaid balance of the Principal Sum and unpaid interest, if any, at a variable rate of interest per annum, which shall change in the manner set forth below equal to three and one-half percent per annum in excess of the Prime Commercial Rate from time to time in effect. As used herein, "Prime Commercial Rate" shall mean the interest rate established by The Huntington National Bank (hereinafter "Bank"), Columbus, Ohio, from time to time based upon its consideration of economic, money market, business and competitive factors, and it is not necessarily the Bank's most favored rate. Subject to any maximum or minimum interest rate limitation specified herein or by applicable law, any variable rate of interest on the obligation evidenced hereby shall change automatically without notice to the undersigned immediately with each change in the Prime Commercial Rate. LATE CHARGE Any installment or other payment not made within ten (10) days of the date such payment or installment is due shall be subject to a late charge equal to five percent of the amount of the installment or payment. DEFAULT Upon the occurrence of any of the following events: (a) the undersigned fails to make any monthly installment of the accrued interest and Principal Sum on or before the date such installment is due; (b) an "Event of Default" under the Loan Agreement shall have occurred and be continuing; then the Bank may, at its option, without notice or demand, accelerate maturity of the obligations evidenced hereby, which obligations shall become immediately due and payable. In the event the Bank shall institute any action for the enforcement or collection of the obligations evidenced hereby, the undersigned agrees to pay all costs and expenses of such action, including reasonable attorneys' fees, to the extent permitted by law. SECURITY This Note is secured by a Mortgage, Assignment of Rents and Security Agreement (herein "Mortgage") encumbering property located in Franklin County, Ohio executed by Metatec Corporation dated of even date herewith, and shall be construed in accordance with the laws of the State of Ohio. The obligations evidenced hereby may from time to time be evidenced by another promissory note or notes given in substitution, renewal or extension hereof, and the Mortgage shall remain in full force and effect notwithstanding any such substitution, renewal, or extension. All remedies provided for herein upon any default by the undersigned shall be cumulative and not exclusive. GENERAL PROVISIONS Each of the parties executing this Note, and any indorser, surety, or guarantor, hereby jointly and severally waive presentment, notice of dishonor, protest, notice of protest, and diligence in bringing suit against any party hereto, waive the defenses of impairment of collateral for the obligation evidenced hereby, impairment of a person against whom the Bank has any right - 2 - 8 of recourse, and any defenses of any accommodation maker and consent that without discharging any of them the time of payment and any other provision of this promissory note may be extended or modified an unlimited number of times before or after maturity without notice to the undersigned. Each of the undersigned jointly and severally agrees that it will pay the obligations evidenced hereby, irrespective of any action or lack of action on the Bank's part in connection with the acquisition, perfection, possession, enforcement, disposition, or modification of all the obligations evidenced hereby or any and all security therefore, and no omission or delay on the Bank's part in exercising any right against, or taking any action to collect from or pursue the Bank's remedies against any party hereto will release, discharge, or modify the duties of the undersigned, or any of them, to make payments hereunder. Each of the undersigned agrees that the Bank, without notice to or further consent from the undersigned, may release or modify any collateral, security, document or other guaranties now held or hereafter acquired, or substitute other collateral, security or other guaranties, and no such action will release, discharge or modify the duties of the undersigned, or any of them, hereunder. Each of the undersigned agrees that the Bank will not be required to pursue or exhaust any of its rights or remedies against the undersigned, or any of them, or any guarantors of the obligations evidenced hereby with respect to the payment of any said obligations, or to pursue, exhaust or preserve any of the Bank's rights or remedies with respect to any collateral, security or other guaranties given to secure said obligations. Each of the undersigned waives any claim or other right which it might now have or hereafter acquire against any other person or entity that is primarily or contingently liable on the obligations that arise from the existence or performance of each of the undersigned's obligations under this Note, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, or any right to participate in any claim or remedy of the Bank or any collateral security which the Bank now has or hereafter acquires, whether such claim, remedy or right arises in equity, under contract or statute, at common law, or otherwise. The obligations evidenced hereby may from time to time be evidenced by another note or notes given in substitution, renewal or extension hereof. Any security interest or mortgage which secures the obligations evidenced hereby shall remain in full force and effect notwithstanding any such substitution, renewal, or extension. The captions used herein are for references only and shall not be deemed a part of this Note. If any of the terms or provisions of this Note shall be deemed unenforceable, the enforceability of the remaining terms and provisions shall not be affected. This Note shall be governed by and construed in accordance with the law of the State of Ohio. WAIVER OF RIGHT TO TRIAL BY JURY EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1) ARISING UNDER THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT TO THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. WARRANT OF ATTORNEY Each of the undersigned authorizes any attorney at law to appear in any Court of Record in the State of Ohio or in any state or territory of the United States after the above indebtedness becomes due, whether by acceleration or otherwise, to waive the issuing and service of process, and to confess judgment against any one or more of the undersigned in favor of the Bank for the amount then appearing due together with costs of suit, and thereupon to waive all errors and all rights of appeal and stays of execution. No such judgment or judgments against less than all of the undersigned shall be a bar to a subsequent judgment - 3 - 9 or judgments against any one or more of the undersigned against whom judgment has not been obtained hereon, this being a joint and several warrant of attorney to confess judgment. WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE. METATEC CORPORATION By: -------------------------------------- Its: ------------------------------------- WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE. METATEC/DISCOVERY SYSTEMS, INC. By: -------------------------------------- Its: ------------------------------------- - 4 - 10 EXHIBIT 9(c) CLOSING MEMORANDUM THE HUNTINGTON NATIONAL BANK ("HNB") LOANS TO METATEC CORPORATION ("MC") AND METATEC/DISCOVERY SYSTEMS, INC. ("MDS") C/M # 266900-81645 I. PARTIES: HNB: The Huntington National Bank Daniel W. Huffman 41 South High Street Assistant Vice President Columbus, Ohio 43215 (614) 480-5519 (614) 480-3066 (Fax) Attorneys for HNB: Porter, Wright, Morris & Arthur Timothy E. Grady/ ("PWMA") Donald W. Jordan 41 South High Street (614) 227-2105/227-2185 Columbus, Ohio 43215 (614) 227-2100 (Fax) Susan E. Portwood (paralegal) (614) 227-2173 (614) 227-2100 (Fax) MC: Metatec Corporation William H. Largent, 7001 Metatec Blvd. Executive Vice President & Dublin, Ohio 43017 Chief Financial Officer (614) 761-2000 MDS: Metatec/Discovery Systems, Inc. 7001 Metatec Blvd. Dublin, Ohio 43017 Attorneys for MC and MDS: Baker & Hostetler ("BH") Kevin H. Connor 65 East State Street (614) 228-1541 Columbus, Ohio 43215 (614) 462-2616 (Fax)
II. CLOSING DOCUMENTS: 11 A. Loan Documents
Responsible Party - ----------- BH 1. Certified Corporate Resolutions authorizing execution of loan documents for MC (form to be provided by PWMA) PWMA 2. Closing Certificate of MC with the following Exhibits (in place from 5/13/94): PWMA a. Good Standing Certificates - Florida and Ohio PWMA b. Certified Articles of Incorporation BH c. Bylaws BH 3. Certified Corporate Resolutions authorizing execution of loan documents for MDS (form to be provided by PWMA) PWMA 4. Closing Certificate of MDS with the following Exhibits (in place from 5/13/94): PWMA a. Good Standing Certificates - Ohio PWMA b. Certified Articles of Incorporation BH c. Bylaws PWMA 5. First Amendment to Loan Agreement with the following exhibit: a. $4,800,000.00 Mortgage Note PWMA 6. $4,800,000.00 Mortgage Note PWMA 7. Open-End Mortgage, Assignment of Rents and Security Agreement - Dublin, Franklin County, Ohio Property PWMA 8. Borrower's Affidavit PWMA 9. Loan Expense and Disbursement Statement PWMA 10. UCC-1 Financing Statements and other perfection devices for MC a. Ohio Secretary of State b. Franklin County, Ohio Recorder (personal property records) c. Franklin County, Ohio Recorder (fixtures - real estate records) d. other locations, if necessary
B. Real Estate Closing Requirements - 2 - 12 SERVICE TITLE 11. Mortgagee's Title Insurance Commitment and Final Title Policy in an amount not less than $4,800,000.00, with variable interest rate, contiguity, and comprehensive endorsements (see HNB title standards) SERVICE TITLE 12. Title Affidavits as required by title insurance company MC 13. Cancellations of Lease, Cross-Easement Agreement, Party Wall Agreement MC 14. As-Built Survey (see HNB survey standards) HNB 15. Flood Hazard Certification (on survey) MC 16. Insurance Certificates/Copies of Policies for real estate and personal property situated thereon naming HNB as loss payee, additional insured and mortgagee MC 17. Phase I Environmental Report HNB 18. Appraisal MC 19. Deed, Closing Statement, Other Buy-Sell Documentation - Evidence of Purchase (Wilkins Property) MC 20. Completion Evidences a. Certificate of Occupancy b. A/A Certificate of Substantial Completion c. Indemnity, Lien Waivers/Evidences of Payment of Construction Costs (as required by Title Company) MC 21. Releases of Mortgage and UCC Financing Statements (Wilkins Property) PWMA 22. Instruction Letter (to Title Company) C. Miscellaneous Closing Requirements BH 23. Borrowers' Counsel Opinion HNB 24. Final Approval of Credit Facility PWMA 25. Such other documents as HNB or its counsel may require after further review of documentation
- 3 - 13 EXHIBIT A AMORTIZATION SCHEDULE - FIXED MONTHLY PAYMENT Interest: 8.25% Loan Amount: $4,800,000.00 Term (Years): 15.00 Payment (monthly): $46,566.74 Payments Start: 10/2/94
Excess Month Principal Interest Payments Balance Last Payment Oct-94 13566.74 33000.00 4786433.26 Nov-94 13660.01 32906.73 4772773.25 Dec-94 13753.92 32812.82 4759019.33 Jan-95 13848.48 32718.26 4745170.85 Feb-95 13943.69 32623.05 4731227.17 Mar-95 14039.55 32527.19 4717187.62 Apr-95 14136.07 32430.66 4703051.54 May-95 14233.26 32333.48 4688818.29 Jun-95 14331.11 32235.63 4674487.17 Jul-95 14429.64 32137.10 4660057.54 Aug-95 14528.84 32037.90 4645528.70 Sep-95 14628.73 31938.01 4630899.97 Oct-95 14729.30 31837.44 4616170.67 Nov-95 14830.56 31736.17 4601340.10 Dec-95 14932.52 31634.21 4586407.58 Jan-96 15035.19 31531.55 4571372.39 Feb-96 15138.55 31428.19 4556233.84 Mar-96 15242.63 31324.11 4540991.21 Apr-96 15347.42 31219.31 4525643.79 May-96 15452.94 31113.80 4510190.85 Jun-96 15559.18 31007.56 4494631.68 Jul-96 15666.14 30900.59 4478965.54 Aug-96 15773.85 30792.89 4463191.69 Sep-96 15882.29 30684.44 4447309.39 Oct-96 15991.49 30575.25 4431317.91 Nov-96 16101.43 30465.31 4415216.48 Dec-96 16212.12 30354.61 4399004.36 Jan-97 16323.58 30243.15 4382680.77 Feb-97 16435.81 30130.93 4366244.97 Mar-97 16548.80 30017.93 4349696.16 Apr-97 16662.58 29904.16 4333033.59 May-97 16777.13 29789.61 4316256.46 Jun-97 16892.47 29674.26 4299363.98 Jul-97 17008.61 29558.13 4282355.37 Aug-97 17125.54 29441.19 4265229.83 Sep-97 17243.28 29323.46 4247986.55 Oct-97 17361.83 29204.91 4230624.72 Nov-97 17481.19 29085.54 4213143.53 Dec-97 17601.38 28965.36 4195542.15 Jan-98 17722.38 28844.35 4177819.76 Feb-98 17844.23 28722.51 4159975.54 Mar-98 17966.91 28599.83 4142008.63 Apr-98 18090.43 28476.31 4123918.21 May-98 18214.80 28351.94 4105703.41 Jun-98 18340.03 28226.71 4087363.38
14 AMORTIZATION SCHEDULE - FIXED MONTHLY PAYMENT Interest: 8.25% Loan Amount: $4,800,000.00 Term (Years): 15.00 Payment (monthly): $46,566.74 Payments Start: 10/2/94
Excess Month Principal Interest Payments Balance Last Payment Jul-98 18466.11 28100.62 4068897.27 Aug-98 18593.07 27973.67 4050304.20 Sep-98 18720.90 27845.84 4031583.30 Oct-98 18849.60 27717.14 4012733.70 Nov-98 18979.19 27587.54 3993754.51 Dec-98 19109.67 27457.06 3974644.83 Jan-99 19241.05 27325.68 3955403.78 Feb-99 19373.34 27193.40 3936030.44 Mar-99 19506.53 27060.21 3916523.91 Apr-99 19640.64 26926.10 3896883.28 May-99 19775.66 26791.07 3877107.61 Jun-99 19911.62 26655.11 3857195.99 Jul-99 20048.51 26518.22 3837147.48 Aug-99 20186.35 26380.39 3816961.13 Sep-99 20325.13 26241.61 3796636.00 Oct-99 20464.86 26101.87 3776171.13 Nov-99 20605.56 25961.18 3755565.57 Dec-99 20747.22 25819.51 3734818.35 Jan-2000 20889.86 25676.88 3713928.49 Feb-2000 21033.48 25533.26 3692895.01 Mar-2000 21178.08 25388.65 3671716.93 Apr-2000 21323.68 25243.05 3650393.24 May-2000 21470.28 25096.45 3628922.96 Jun-2000 21617.89 24948.85 3607305.07 Jul-2000 21766.51 24800.22 3585538.55 Aug-2000 21916.16 24650.58 3563622.39 Sep-2000 22066.83 24499.90 3541555.56 Oct-2000 22218.54 24348.19 3519337.02 Nov-2000 22371.30 24195.44 3496965.72 Dec-2000 22525.10 24041.64 3474440.62 Jan-2001 22679.96 23886.78 3451760.67 Feb-2001 22835.88 23730.85 3428924.78 Mar-2001 22992.88 23573.86 3405931.90 Apr-2001 23150.96 23415.78 3382780.95 May-2001 23310.12 23256.62 3359470.83 Jun-2001 23470.38 23096.36 3336000.45 Jul-2001 23631.73 22935.00 3312368.72 Aug-2001 23794.20 22772.53 3288574.52 Sep-2001 23957.79 22608.95 3264616.73 Oct-2001 24122.50 22444.24 3240494.23 Nov-2001 24288.34 22278.40 3216205.89 Dec-2001 24455.32 22111.42 3191750.57 Jan-2002 24623.45 21943.29 3167127.12 Feb-2002 24792.74 21774.00 3142334.38 Mar-2002 24963.19 21603.55 3117371.19 Apr-2002 25134.81 21431.93 3092236.38 May-2002 25307.61 21259.13 3066928.77 Jun-2002 25481.60 21085.14 3041447.17 Jul-2002 25656.79 20909.95 3015790.38 Aug-2002 25833.18 20733.56 2989957.20 Sep-2002 26010.78 20555.96 2963946.42 Oct-2002 26189.61 20377.13 2937756.82 Nov-2002 26369.66 20197.08 2911387.16 Dec-2002 26550.95 20015.79 2884836.21 Jan-2003 26733.49 19833.25 2858102.72 Feb-2003 26917.28 19649.46 2831185.44
15 AMORTIZATION SCHEDULE - FIXED MONTHLY PAYMENT Interest: 8.25% Loan Amount: $4,800,000.00 Term (Years): 15.00 Payment (monthly): $46,566.74 Payments Start: 10/2/94
Excess Month Principal Interest Payments Balance Last Payment Mar-2003 27102.34 19464.40 2804083.10 Apr-2003 27288.67 19278.07 2776794.44 May-2003 27476.28 19090.46 2749318.16 Jun-2003 27665.17 18901.56 2721652.99 Jul-2003 27855.37 18711.36 2693797.61 Aug-2003 28046.88 18519.86 2665750.73 Sep-2003 28239.70 18327.04 2637511.03 Oct-2003 28433.85 18132.89 2609077.18 Nov-2003 28629.33 17937.41 2580447.85 Dec-2003 28826.16 17740.58 2551621.69 Jan-2004 29024.34 17542.40 2522597.36 Feb-2004 29223.88 17342.86 2493373.48 Mar-2004 29424.79 17141.94 2463948.68 Apr-2004 29627.09 16939.65 2434321.59 May-2004 29830.78 16735.96 2404490.82 Jun-2004 30035.86 16530.87 2374454.95 Jul-2004 30242.36 16324.38 2344212.59 Aug-2004 30450.28 16116.46 2313762.32 Sep-2004 30659.62 15907.12 2283102.70 Oct-2004 30870.41 15696.33 2252232.29 Nov-2004 31082.64 15484.10 2221149.65 Dec-2004 31296.33 15270.40 2189853.32 Jan-2005 31511.50 15055.24 2158341.82 Feb-2005 31728.14 14838.60 2126613.68 Mar-2005 31946.27 14620.47 2094667.42 Apr-2005 32165.90 14400.84 2062501.52 May-2005 32387.04 14179.70 2030114.48 Jun-2005 32609.70 13957.04 1997504.78 Jul-2005 32833.89 13732.85 1964670.89 Aug-2005 33059.62 13507.11 1931611.26 Sep-2005 33286.91 13279.83 1898324.35 Oct-2005 33515.76 13050.98 1864808.59 Nov-2005 33746.18 12820.56 1831062.42 Dec-2005 33978.18 12588.55 1797084.23 Jan-2006 34211.78 12354.95 1762872.45 Feb-2006 34446.99 12119.75 1728425.46 Mar-2006 34683.81 11882.93 1693741.65 Apr-2006 34922.26 11644.47 1658819.39 May-2006 35162.35 11404.38 1623657.03 Jun-2006 35404.10 11162.64 1588252.94 Jul-2006 35647.50 10919.24 1552605.44 Aug-2006 35892.57 10674.16 1516712.86 Sep-2006 36139.34 10427.40 1480573.53 Oct-2006 36387.79 10178.94 1444185.73 Nov-2006 36637.96 9928.78 1407547.77 Dec-2006 36889.85 9676.89 1370657.93 Jan-2007 37143.46 9423.27 1333514.46 Feb-2007 37398.83 9167.91 1296115.64 Mar-2007 37655.94 8910.80 1258459.70 Apr-2007 37914.83 8651.91 1220544.87 May-2007 38175.49 8391.25 1182369.38 Jun-2007 38437.95 8128.79 1143931.43 Jul-2007 38702.21 7864.53 1105229.22 Aug-2007 38968.29 7598.45 1066260.93 Sep-2007 39236.19 7330.54 1027024.74 Oct-2007 39505.94 7060.80 987518.80
16 AMORTIZATION SCHEDULE - FIXED MONTHLY PAYMENT Interest: 8.25% Loan Amount: $4,800,000.00 Term (Years): 15.00 Payment (monthly): $46,566.74 Payments Start: 10/2/94
Excess Month Principal Interest Payments Balance Last Payment Nov-2007 39777.55 6789.19 947741.25 Dec-2007 40051.02 6515.72 907690.24 Jan-2008 40326.37 6240.37 867363.87 Feb-2008 40603.61 5963.13 826760.26 Mar-2008 40882.76 5683.98 785877.50 Apr-2008 41163.83 5402.91 744713.67 May-2008 41446.83 5119.91 703266.84 Jun-2008 41731.78 4834.96 661535.06 Jul-2008 42018.68 4548.05 619516.38 Aug-2008 42307.56 4259.18 577208.82 Sep-2008 42598.43 3968.31 534610.39 Oct-2008 42891.29 3675.45 491719.10 Nov-2008 43186.17 3380.57 448532.93 Dec-2008 43483.07 3083.66 405049.86 Jan-2009 43782.02 2784.72 361267.84 Feb-2009 44083.02 2483.72 317184.82 Mar-2009 44386.09 2180.65 272798.73 Apr-2009 44691.25 1875.49 228107.48 May-2009 44998.50 1568.24 183108.98 Jun-2009 45307.86 1258.87 137801.12 Jul-2009 45619.35 947.38 92181.76 Aug-2009 45932.99 633.75 46248.78 Sep-2009 46248.78 317.96 0.00 46566.74
EX-10.E 6 METATEC EX-10(E) 1 Exhibit 10(e) SECOND AMENDMENT TO LOAN AGREEMENT This Second Amendment to Loan Agreement is entered into this 1st day of February, 1995, between Metatec Corporation and Metatec/Discovery Systems, Inc. (hereinafter referred to as the "Company") and The Huntington National Bank, a national banking association (hereinafter referred to as "Bank"); WITNESSETH WHEREAS, on May 13, 1994, Company executed and delivered to Bank a certain Loan Agreement (hereinafter referred to as the "Agreement") which sets forth the terms of certain extensions of credit to the Company; and WHEREAS, on September 1, 1994, Bank and Company agreed to enter into a certain First Amendment to Loan Agreement (hereinafter referred to as "Amendment") to amend said Loan Agreement as further described therein; and WHEREAS, Company desires and Bank agrees to further amend said Agreement in accordance with the terms and conditions set forth below. NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Borrower and Bank, for themselves, their heirs, successors and assigns, hereby agree as follows: 1. Effective as of the date hereof, "SECTION 1.2" of said Agreement shall be amended to read as follows: The Bank, subject to the terms and conditions hereof, will make loans and advances to the Company on an unsecured revolving basis in a principal amount of up to $4,000,000.00 (the "Revolving Loan"). 2. All other terms and conditions of said Agreement and Amendment not herein specifically amended are hereby ratified and shall remain in full force and effect. 3. This Second Amendment to Loan Agreement shall be governed by and construed in accordance with the law of the State of Ohio. IN WITNESS WHEREOF, Company and Bank have executed this Second Amendment to Loan Agreement as of the date first written above.
WITNESSES: COMPANY: METATEC CORPORATION /s/Mary Reichle By /s/William H. Largent - ------------------------------ ---------------------------------- /s/Jo Ellen Barnhart METATEC/DISCOVERY SYSTEMS, INC. - ------------------------------ By /s/Gregory T. Tillar ---------------------------------- HUNTINGTON NATIONAL BANK By /s/Daniel Huffman ---------------------------------- Daniel Huffman Assistant Vice President
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