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Exhibit 10(cxxiii)
SIXTH AMENDMENT, APPOINTMENT AND ACCEPTANCE AGREEMENT
This SIXTH AMENDMENT, APPOINTMENT AND ACCEPTANCE AGREEMENT (this
"Agreement") is dated as of December 8, 1998, among XXXXXXXX BEACH/
XXXXXXX-SILEX, INC., a Delaware corporation (the "Company"), XXXXXXX-SILEX
CANADA, INC., a corporation organized under the laws of the Province of Ontario,
Canada ("PSC") and XXXXXXX-SILEX S.A. DE C.V., a corporation organized under the
laws of Mexico ("PSM"); and together with the Company and PSC, collectively, the
"Obligors"); THE CHASE MANHATTAN BANK (successor by merger to The Chase
Manhattan Bank National Association) (the "Existing U.S. Agent"), KEYBANK
NATIONAL ASSOCIATION (the "Successor U.S. Agent"), THE CHASE MANHATTAN BANK OF
CANADA (the "Existing Canadian Agent"), THE BANK OF NOVA SCOTIA (the "Successor
Canadian Agent"), and each of the Banks, as hereinafter defined, a party to the
Credit Agreement, as hereinafter defined.
The Obligors, each of the financial institutions a party to the Credit
Agreement (collectively, "Banks," and individually, "Bank"), the Existing U.S.
Agent, and the Existing Canadian Agent are parties to that certain Second
Amended and Restated Credit Agreement, dated as of October 11, 1990 and as
amended and restated as of April 18, 1995 (as amended by Amendment No. 1 dated
as of March 29, 1996, Amendment No. 2 dated as of October 4, 1996, Amendment
No. 3 dated as of April 14, 1997, Amendment No. 4 dated as of April 22, 1998 and
Amendment No. 5 dated as of June 10, 1998, and as the same may from time to time
be further amended, restated or otherwise modified, the "Credit Agreement").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings attributed to them in the Credit Agreement.
The Existing U.S. Agent desires to resign as "U.S. Agent" under the
Credit Agreement. Each of the Banks desire to appoint the Successor U.S. Agent
as the successor "U.S. Agent" and the Successor U.S. Agent desires to accept
such appointment.
The Existing Canadian Agent desires to resign as "Canadian Agent" under
the Credit Agreement. Each of the Banks desire to appoint the Successor Canadian
Agent as the successor "Canadian Agent" and the Successor Canadian Agent desires
to accept such appointment.
In connection with the above, the Obligors, the Existing U.S. Agent,
the Successor U.S. Agent, the Existing Canadian Agent, the Successor Canadian
Agent and the Banks desire to amend the Credit Agreement to modify certain
provisions thereof.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements herein contained and for other valuable considerations,
the Obligors, the Existing U.S. Agent, the Successor U.S. Agent, the Existing
Canadian Agent, the Successor Canadian Agent and the Banks hereby agree as
follows:
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1. APPOINTMENT AND ACCEPTANCE.
(a) Pursuant to Section 11.08 of the Credit Agreement, effective as of the
U.S. Agent Appointment Effective Date (as hereinafter defined), each of the
Banks hereby appoints the Successor U.S. Agent as "U.S. Agent" under the Credit
Agreement, and on and after the U.S. Agent Appointment Effective Date, the
Successor U.S. Agent shall be deemed to be "U.S. Agent" and an "Agent" for the
purposes of the Credit Agreement and each of the Security Documents, each of the
Majority Interest Documents, each of the Minority Interest Documents, each of
the Holdings Documents and any other Document to which U.S. Agent is a party.
Effective as of the U.S. Agent Appointment Effective Date, the Successor U.S.
Agent hereby accepts the foregoing appointment as "U.S. Agent" and shall serve
in such capacity in accordance with the terms and conditions of the Credit
Agreement.
(b) Pursuant to Section 11.08 of the Credit Agreement, effective as of the
Canadian Agent Appointment Effective Date (as hereinafter defined), each of the
Banks hereby appoints the Successor Canadian Agent as "Canadian Agent" under the
Credit Agreement, and on and after the Canadian Agent Appointment Effective
Date, the Successor Canadian Agent shall be deemed to be "Canadian Agent" and an
"Agent" for the purposes of the Credit Agreement and each of the Security
Documents, each of the Majority Interest Documents, each of the Minority
Interest Documents, each of the Holdings Documents and any other Document to
which Canadian Agent is a party. Effective as of the Canadian Agent Appointment
Effective Date, the Successor Canadian Agent hereby accepts the foregoing
appointment as "Canadian Agent" and shall serve in such capacity in accordance
with the terms and conditions of the Credit Agreement.
2. APPOINTMENT EFFECTIVE DATE.
(a) The U.S. Agent Appointment Effective Date (the "U.S. Agent Appointment
Effective Date") shall be December 8, 1998 and the following conditions
precedent shall be satisfied on or prior to such date:
(i) receipt by the Successor U.S. Agent, the Successor Canadian Agent,
each Bank, the Issuing Bank and the Obligors of a Notice of Resignation, such
notice to be in the form of ANNEX 1 hereto, properly executed by the Existing
U.S. Agent;
(ii) receipt by the Successor U.S. Agent from the Existing U.S. Agent of
the original (or if not available, a copy) of each Document (including,
without limitation, each certificate representing Pledged Shares (as defined
in any of the Pledge Agreements)); and
(iii) receipt by the Successor U.S. Agent of any other information or
documentation reasonably necessary or requested by it to complete the
appointment contemplated by this Agreement.
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(b) The Canadian Agent Appointment Effective Date (the "Canadian Agent
Appointment Effective Date") shall be December 8, 1998 and the following
conditions precedent shall be satisfied on or prior to such date:
(i) receipt by the Successor Canadian Agent, the Successor U.S. Agent,
each Bank, the Issuing Bank and the Obligors of a Notice of Resignation, such
notice to be in the form of the ANNEX 2 hereto, properly executed by the
Existing Canadian Agent;
(ii) receipt by the Successor Canadian Agent from the Existing Canadian
Agent of the original (or if not available, a copy) of each Document; and
(iii) receipt by the Successor Canadian Agent of any other information or
documentation reasonably necessary or requested by it to complete the
appointment contemplated by this Agreement.
3. NOTICES.
(a) On and after the U.S. Agent Appointment Effective Date, all notices,
requests, demands and other communications provided for under the Credit
Agreement or any other Document to be made or given to the U.S. Agent shall be
given or made to the Successor U.S. Agent, as U.S. Agent, at the address for
notices specified on the signature pages to this Agreement. The Existing U.S.
Agent agrees that in the event that the Existing U.S. Agent receives any notice,
communication or other delivery on or after the U.S. Agent Appointment Effective
Date that is intended for delivery to "U.S. Agent", the Existing U.S. Agent
shall immediately deliver such notice, communication or delivery to the
Successor U.S. Agent at the address for notices of the Successor U.S. Agent set
forth on the signature pages to this Agreement. Anything in this Agreement, the
Credit Agreement or any other Document to the contrary not withstanding, the
Successor U.S. Agent shall not be deemed to have received any notice,
communication or other delivery until or unless such notice, communication or
other delivery is given or delivered at the address for notices specified on the
signature pages to this Agreement, in the manner specified in the Credit
Agreement.
(b) On and after the Canadian Agent Appointment Effective Date, all notices,
requests, demands and other communications provided for under the Credit
Agreement or any other Document to be made or given to the Canadian Agent shall
be given or made to the Successor Canadian Agent, as Canadian Agent, at the
address for notices specified on the signature pages to this Agreement. The
Existing Canadian Agent agrees that in the event that the Existing Canadian
Agent receives any notice, communication or other delivery on or after the
Canadian Agent Appointment Effective Date that is intended for
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delivery to "Canadian Agent," the Existing Canadian Agent shall immediately
deliver such notice, communication or delivery to the Successor Canadian Agent
at the address for notices of the Successor Canadian Agent set forth on the
signature pages to this Agreement. Anything in this Agreement, the Credit
Agreement or any other Document to the contrary not withstanding, the Successor
Canadian Agent shall not be deemed to have received any notice, communication or
other delivery until or unless such notice, communication or other delivery is
given or delivered at the address for notices specified on the signature pages
to this Agreement, in the manner specified in the Credit Agreement.
4. AMENDMENTS.
A. Section 1.01 of the Credit Agreement is hereby amended to delete the
definitions of "Business Day", "Canadian Discount Rate", "Canadian Dollar Spot
Rate", "Canadian Office", "Chase", "Chase Canada", "London Branch", "Principal
Office", "Reference Banks" and "U.S. Dollar Spot Rate" in their entirety and to
substitute in place thereof the following:
"BUSINESS DAY" shall mean any day on which commercial banks are not
authorized or required to close in Cleveland, Ohio and, with respect to
Canadian Dollar Loans, Xxxxxxx, Xxxxxxx, Xxxxxx and, with respect to the
giving of notices or quotes in connection with a LIBOR Auction or to a
borrowing of, a payment or prepayment of principal of or interest on, or a
Conversion or Continuation of or into, or an Interest Period for, a
Eurodollar Loan or a LIBOR Market Loan, or a notice by the Company with
respect to any of the foregoing, which is also a day on which dealings in
U.S. Dollar deposits are carried out in the London interbank eurodollar
market and, with respect to determinations of the Canadian Dollar Spot Rate
and the U.S. Dollar Spot Rate, which is also a day on which dealings in
foreign currency are carried out in the London foreign exchange market.
"CANADIAN DISCOUNT RATE" shall mean, with respect to Canadian Discount
Rate Loans, the discount rate (expressed as a percentage calculated on the
basis of a year of 365 days) quoted by the Toronto office of the Canadian
Reference Bank at 10:00 a.m. (Toronto time) on the Canadian Discount
Borrowing Date as the discount rate the Canadian Reference Bank would, in the
normal course of its business, purchase on such date Bankers Acceptances
having a term comparable to the Interest Period for such Canadian Discount
Rate Loan and having an aggregate face amount equal to CAN$1,000,000.
"CANADIAN DOLLAR SPOT RATE" shall mean, on any day, the rate of exchange
for the purchase by the U.S. Agent of Canadian Dollars with U.S. Dollars in
the
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commercial bank foreign exchange market in London for delivery two Business
Days after such day, quoted by the U.S. Agent at approximately 11:00 a.m.
New York time on such day (or the next preceding Business Day, if such day is
not a Business Day).
"CANADIAN OFFICE" shall mean the principal Toronto office of the Canadian
Agent, as set forth on the signature page hereto or such other document
delivered from time to time by the Canadian Agent to Obligors.
"CHASE" shall mean the U.S. Agent, including its successors in such
capacity.
"CHASE CANADA" shall mean the Canadian Agent, including its successors in
such capacity.
"LONDON BRANCH" - Intentionally Deleted
"PRINCIPAL OFFICE" shall mean the principal office of the U.S. Agent, as
set forth on the signature page hereto or such other document delivered from
time to time by the U.S. Agent to Obligors.
"REFERENCE BANKS" shall mean the U.S. Agent, the Canadian Agent, and The
First National Bank of Chicago (or their Applicable Lending Offices, as the
case may be).
"U.S. DOLLAR SPOT RATE" shall mean, on any day, the rate of exchange for
the purchase by the U.S. Agent with a currency other than U.S. Dollars of
U.S. Dollars in the commercial bank foreign exchange market in London for
delivery two Business Days after such day, quoted by the U.S. Agent at
approximately 11:00 a.m. New York time on such day (or the next preceding
Business Day, if such day is not a Business Day).
B. Section 2.01 (II) of the Credit Agreement is hereby amended to delete
subpart (c) thereof in its entirety and to insert in place thereof the
following:
(c) LETTER OF CREDIT PAYMENTS. Each Bank shall pay to the U.S. Agent for the
account of the Issuing Bank at an account maintained by the U.S. Agent
for such purpose at the Principal Office in U.S. Dollars and in
immediately available funds, the amount of such Bank's Letter of Credit
Percentage of any Reimbursement obligation upon notice by the Issuing
Bank (through the U.S. Agent) to such Bank requesting such payment and
specifying such amount. Each Bank's obligation to make such payments to
the U.S. Agent for the account of the Issuing Bank under this Section
2.01 (II) (c),
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and the U.S. Agent's right to receive the same for the account of the
Issuing Bank, shall be absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limiting the
effect of the foregoing, the failure of any other Bank to make its
payment under this Section 2.01 (II) (c). Each such payment to the U.S.
Agent for the account of the Issuing Bank shall be made without any
offset, abatement, withholding or reduction whatsoever.
C. Section 2.01 (III) of the Credit Agreement is hereby amended to delete
subpart (f) thereof in its entirety and to insert in place thereof the
following:
(f) Any Bank whose offer to make any Money Market Loan has been accepted
in accordance with the terms and conditions of this Section 2.01(III)
shall, not later than noon New York time on the date specified for the
making of such Loan, make the amount of such Loan available to the U.S.
Agent at an account maintained by the U.S. Agent for such purpose at the
Principal Office in immediately available funds, for account of the
Company. The amount so received by the U.S. Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Company
on such date by depositing the same, in immediately available funds, in
an account of the Company as designated by the Company.
D. Section 2.02 of the Credit Agreement is hereby amended to delete
subsections (a) and (b) thereof in their entirety and to insert in place thereof
the following:
(a) BORROWINGS OF SERIES A R/C LOANS. The Company shall give the U.S.
Agent (which shall promptly notify the Banks) notice of each borrowing of
Series A R/C Loans hereunder as provided in Section 4.05 hereof. Not
later than noon New York time on the date specified for each borrowing of
Series A R/C Loans hereunder, each U.S. Dollar Bank shall make available
to the U.S. Agent the amount of the Loan to be made by it on such date,
at an account maintained by the U.S. Agent for such purpose at the
Principal Office, in immediately available funds, for the account of the
Company. The amount so received by the U.S. Agent shall, subject to the
terms and conditions of this Agreement, be made available to the Company
by depositing the same, in immediately available funds, in an account of
the Company maintained with the U.S. Agent at the Principal Office
designated by the Company (or in such other manner as may be specified by
the Company and is reasonably acceptable to the U.S. Agent).
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(b) BORROWINGS OF CANADIAN DOLLAR LOANS. PSC shall give the Canadian
Agent (which shall promptly notify each U.S. Dollar Bank that has an
Affiliate that is a Canadian Dollar Bank) notice of each borrowing of
Series B R/C Loans hereunder as provided in Section 4.05 hereof. Not
later than 11:00 a.m. Toronto time on the date specified for each
borrowing of Series B R/C Loans hereunder, each such U.S. Dollar Bank
shall make (unless its affiliated Canadian Dollar Bank shall have made)
available to the Canadian Agent the amount of the Series B R/C Loan to be
made by it on such date, at the office of Canadian Agent for credit to
the account of PSC. The amount so received by the Canadian Agent shall,
subject to the terms and conditions of this Agreement, be made available
to PSC by depositing the same, in immediately available funds, in an
account of PSC maintained with the Canadian Agent at the Canadian Office
designated by PSC (or in such other manner as may be specified by PSC and
is reasonably acceptable to the Canadian Agent).
E. Section 4.01 of the Credit Agreement is hereby amended to delete
subsection (a) thereof in its entirety and to insert in place thereof the
following:
(a) Except with respect to Canadian Dollar Loans, amounts payable to
Canadian Banks pursuant to Section 5 hereof and to the extent otherwise
expressly provided herein, all payments of principal, interest and other
amounts to be made by any Obligor under this Agreement and the Notes
(other than the Series B R/C Notes) (and all payments by any other
Obligor in respect of such principal, interest or other amounts) shall be
made in U.S. Dollars, in immediately available funds, to the U.S. Agent
at an account maintained by the U.S. Agent for such purpose at the
Principal Office, not later than noon New York time on the date on which
such payment shall become due (each such payment made after such time on
such due date to be deemed to have been made on the next succeeding
Business Day). All payments of principal, interest and other amounts to
be made by PSC under this Agreement (including, without limitation,
amounts payable to Canadian Banks pursuant to Section 5 hereof and
amounts payable under the Series B R/C Notes (and all payments by any
other Obligor in respect of such principal, interest or other amounts))
shall, except as otherwise expressly provided herein, be made in Canadian
Dollars, in immediately available funds, to Canadian Agent for credit to
an account of the Canadian Agent maintained for such purpose not later
than 11:00 a.m. Toronto time on the date on which such payment shall
become due (each such payment made after such time on such due date to be
deemed to have been made on the next succeeding Business Day).
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F. The Credit Agreement is hereby amended to delete Section 12.03 in its
entirety and to insert in place thereof the following:
12.03 EXPENSES; ETC. The Company agrees (a) to pay or reimburse each
Agent on demand for the out-of-pocket costs and expenses of such Agent
(including, without limitation, the reasonable fees and expenses of U.S.
counsel to the Banks and Canadian counsel to the Banks) in connection with
(A) the negotiation, preparation, execution and delivery of this Agreement,
the Security Documents, Documents, the Majority Interest Documents, the
Minority Interest Documents, the Letter of Credit Documents and the Notes
related agreements, instruments or documents, the making of the Loans
hereunder and the issuance of Letters of Credit hereunder and (B) any
amendment, modification or waiver of any of the terms of this Agreement, any
Security Document, any Holdings Document, any Majority Interest Document, any
Minority Interest Document, any Letter of Credit Document, any of the Notes
or such other agreements, instruments or documents and (b) to pay or
reimburse each Agent and each Bank on demand for (i) all reasonable costs and
expenses of such Agent and such Bank (including reasonable counsels' fees and
expenses) in connection with the enforcement of this Agreement, any Security
Document, any Holdings Document, any Majority Interest Document, any Minority
Interest Document, any Letter of Credit Document or any of the Notes and (ii)
all transfer, stamp, documentary, recording or other similar taxes,
assessments, fees or charges levied by any governmental or revenue authority
in respect of this Agreement, any Security Document, any Holdings Document,
any Majority Interest Document, any Minority Interest Document, any Letter of
Credit Document, any of the Notes or any other document referred to herein.
The Company hereby indemnifies each Agent, the Issuing Bank and each Bank and
their respective directors, officers, employees, agents and affiliates from,
and agrees to hold each of them harmless against, any and all losses, claims,
damages, liabilities (or actions or other proceedings commenced or threatened
in respect thereof) and reasonable expenses that arise out of or in any way
relate to or result from the making of Loans or issuance of Letters of Credit
hereunder, or the other transactions contemplated hereby or thereby or by any
other Document, including, without limitation, any investigation or
litigation or other proceedings (whether or not such indemnified person is a
party to any action or proceeding out of which any of the foregoing arise),
other than any of the foregoing to the extent incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified. Neither
Agent nor any Bank shall be responsible or liable to any Obligor or any other
Person for any consequential damages which may be alleged as a result of this
Agreement, any Security Document, any Holdings Document, any Majority
Interest Document, any Minority Interest Document or any Letter of Credit
Document.
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G. The Credit Agreement is hereby amended to delete Section 12.11 in its
entirety and to insert in place thereof the following:
12.11 JURISDICTION AND SERVICE OF PROCESS. Any suit, action or proceeding
against any Obligor with respect to this Agreement, any Loan, any Note, any
Letter of Credit, any Letter of Credit Document or any Security Document or
on any judgment entered by any court in respect of any thereof may be brought
in any Ohio state or federal court sitting in Cleveland, Ohio, or in the
courts sitting in Xxxxxxx, Xxxxxxx, Xxxxxx or in the courts sitting in the
Federal District of Mexico, or in the courts sitting in any jurisdiction
where property covered by any Mortgage may be situated, as the U.S. Agent may
elect in its sole discretion and each Obligor hereby submits to the
non-exclusive jurisdiction of such courts for the purpose of any such suit,
action or proceeding (and waives for such purpose any other preferential
jurisdiction by reason of its present or future domicile or otherwise). Each
of PSC and PSM hereby agrees that service of all writs, process and summonses
in any such suit, action or proceeding brought in the State of Ohio may be
made upon CT Corporation System (the "PROCESS AGENT"), presently located at
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000, and each of PSC and PSM hereby
irrevocably appoints the Process Agent its true and lawful attorney-in-fact
in its name, place and stead to accept such service of any and all such
writs, process and summonses, and agrees that the failure of the Process
Agent to give any notice of any such service of process to it shall not
impair or affect the validity of such service or of any judgment based
thereon. Each Obligor hereby further irrevocably consents to the service of
process in any suit, action or proceeding in said courts by the mailing
thereof by either Agent by registered or certified mail, postage prepaid, to
such Obligor. Nothing herein shall in any way be deemed to limit the ability
of either Agent to serve any such writs, process or summonses in any other
manner permitted by applicable law or to obtain jurisdiction over any Obligor
in such other jurisdictions, and in such manner, as may be permitted by
applicable law. Each Obligor hereby irrevocably waives any objection which it
may now or hereafter have to the laying of the venue of any such suit, action
or proceeding brought in any Ohio state or federal court sitting in
Cleveland, Ohio, and hereby further irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in
an inconvenient forum.
H. The Credit Agreement is hereby amended to delete Section 12.13 in its
entirety and to insert in place thereof the following:
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12.13 JUDGMENT CURRENCY. This is an international loan transaction in
which (a) in the case of U.S. Dollar Loans and Letter of Credit Obligations,
the specification of U.S. Dollars and payment at the Principal Office is of
the essence, and, with respect to such U.S. Dollar Loans and Letter of Credit
Obligations, U.S. Dollars shall be the currency of account in all events and
(b) in the case of Canadian Dollar Loans, the specification of Canadian
Dollars and payment at the Canadian Office is of the essence, and with
respect to such Canadian Dollar Loans, Canadian Dollars shall be the currency
of account in all events. The payment obligations of the Obligors with
respect to any Loans or Letter of Credit Obligations under this Agreement or
amounts payable under the Security Documents and the Notes shall not be
discharged by an amount paid in a currency other than U.S. Dollars, in the
case of U.S. Dollar obligations, or Canadian Dollars, in the case of Canadian
Dollar obligations (each such currency with respect to each such obligation,
the "REQUIRED CURRENCY"), or at a place other than the Principal Office in
the case of U.S. Dollar obligations or the Canadian Office in the case of
Canadian Dollar obligations (each such place with respect to each obligation,
the "REQUIRED PLACE"), whether pursuant to such judgment or otherwise to the
extent that the amount so paid on conversion to the Required Currency and
transfer to the Required Place under normal banking procedures does not yield
the amount of the Required Currency in the Required Place due hereunder.
5. REPLACEMENT OF NOTES. The Credit Agreement is hereby amended by deleting
Exhibit X-0, Xxxxxxx X-0, Exhibit A-3 and Exhibit A-4 in their entirety and by
substituting in place thereof Exhibit X-0, Xxxxxxx X-0, Exhibit A-3 and
Exhibit A-4 in the form of Exhibit X-0, Xxxxxxx X-0, Exhibit A-3 and Exhibit A-4
attached hereto; provided, however, that the replacement of the foregoing
Exhibits shall not affect in any way whatsoever the validity or enforceability
of any Note issued and outstanding on or prior to the date of this Agreement.
6. FURTHER ASSURANCES. Each Obligor agrees that, after the date of this
Agreement, each Obligor shall provide such other items and satisfy such other
conditions as may be reasonably required by Successor U.S. Agent, Successor
Canadian Agent or any of the Banks in connection with the appointment of
Successor U.S. Agent and Successor Canadian Agent and the other modifications
contemplated under this Agreement, including, but not limited to, executing such
amendments to any of the Security Documents or other Documents as Agents may
deem necessary, and executing such UCC financing statements (or other lien
registration statements). Each Obligor shall pay all filing and recording fees
and taxes in connection with any of the foregoing.
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7. EXPENSES. Concurrently with the execution of this Agreement, Existing U.S.
Agent shall pay all legal fees and expenses of the Successor U.S. Agent in
connection with this Agreement, the appointment of the Successor U.S. Agent, the
transfer to the Successor U.S. Agent of any interests in the collateral that
secures the indebtedness incurred pursuant to the Credit Agreement, or otherwise
in connection with the transactions contemplated in this Agreement, and Existing
Canadian Agent shall pay all legal fees and expenses of the Successor Canadian
Agent in connection with this Agreement, the appointment of the Successor
Canadian Agent, the transfer to the Successor Canadian Agent of any interests in
the collateral that secures the indebtedness incurred pursuant to the Credit
Agreement, or otherwise in connection with the transactions contemplated in this
Agreement.
8. REPRESENTATIONS. Each Obligor hereby represents and warrants to Agents and
the Banks that (a) it has the legal power and authority to execute and deliver
this Agreement; (b) the officers executing this Agreement have been duly
authorized to execute and deliver the same and bind such Obligor with respect to
the provisions hereof; (c) the execution and delivery hereof by such Obligor and
the performance and observance by such Obligor of the provisions hereof do not
violate or conflict with the organizational agreements of such Obligor or any
law applicable to such Obligor or result in a breach of any provision of or
constitute a default under any other agreement, instrument or document binding
upon or enforceable against such Obligor; (d) no Default or Event of Default
exists under the Credit Agreement or any Document, nor will any occur
immediately after the execution and delivery of this Agreement or by the
performance or observance of any provision hereof; (e) no Obligor is aware of
any claim or offset against, or defense or counterclaim to, any of such
Obligor's obligations or liabilities under the Credit Agreement or any Document;
and (f) each of this Agreement and the Credit Agreement, as amended hereby,
constitutes a valid and binding obligation of each Obligor in every respect,
enforceable in accordance with its terms.
9. REFERENCE. Each reference that is made in the Credit Agreement or any
Document to the Credit Agreement shall hereafter be construed as a reference to
the Credit Agreement as amended hereby. Except as herein otherwise specifically
provided, all provisions of the Credit Agreement shall remain in full force and
effect and be unaffected hereby. This Agreement is a Document, as defined in the
Credit Agreement.
10. RELEASE. Each Obligor, by signing below, hereby waives and releases each
Agent and each of the Banks and their respective directors, officers, employees,
attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which any such Obligor is aware, such waiver and
release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect thereto.
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11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which when taken together shall constitute
but one and the same agreement.
12. INDEMNIFICATION.
(a) The Existing U.S. Agent hereby agrees to indemnify the Successor U.S.
Agent (to the extent not reimbursed under Sections 11.05 or 12.03 of the
Credit Agreement, but without limiting the obligations of the Banks or the
Company under said sections 11.05 and 12.03, respectively), for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against such Successor U.S.
Agent in any way relating to or arising out of the Credit Agreement or any of
the other Documents or the transactions contemplated hereby or the
enforcement of any of the terms hereof or of any of such other Documents that
arises or relates to acting as U.S. Agent prior to the U.S. Agent Appointment
Effective Date. The Successor U.S. Agent hereby agrees to indemnify the
Existing U.S. Agent (to the extent not reimbursed under Sections 11.05 or
12.03 of the Credit Agreement, but without limiting the obligations of the
Banks or the Company under said sections 11.05 and 12.03, respectively), for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever that may be imposed on, incurred by or asserted against the
Existing U.S. Agent in any way relating to or arising out of the Credit
Agreement or any of the other Documents or the transactions contemplated
hereby or the enforcement of any of the terms hereof or of any of such other
Documents that arises or relates to acting as U.S. Agent on or after the U.S.
Agent Appointment Effective Date.
(b) The Existing Canadian Agent hereby agrees to indemnify the Successor
Canadian Agent (to the extent not reimbursed under Sections 11.05 or 12.03 of
the Credit Agreement, but without limiting the obligations of the Banks or
the Company under said sections 11.05 and 12.03, respectively), for any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against such Successor
Canadian Agent in any way relating to or arising out of the Credit Agreement
or any of the other Documents or the transactions contemplated hereby or the
enforcement of any of the terms hereof or of any of such other Documents that
arises or relates to acting as Canadian Agent prior to the Canadian Agent
Appointment Effective Date. The
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Successor Canadian Agent hereby agrees to indemnify the Existing Canadian
Agent (to the extent not reimbursed under Sections 11.05 or 12.03 of the
Credit Agreement, but without limiting the obligations of the Banks or the
Company under said sections 11.05 and 12.03, respectively), for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever
that may be imposed on, incurred by or asserted against the Existing Canadian
Agent in any way relating to or arising out of the Credit Agreement or any of
the other Documents or the transactions contemplated hereby or the
enforcement of any of the terms hereof or of any of such other Documents that
arises or relates to acting as Canadian Agent on or after the Canadian Agent
Appointment Effective Date.
13. ENTIRE AGREEMENT. This Agreement embody the entire agreement and
understanding among the parties hereto and supersedes all prior agreements and
understandings among the parties hereto relating to the subject matter hereof.
[Remainder of page intentionally left blank.]
13
14
14. JURY TRIAL WAIVER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
OBLIGOR, EACH AGENT, THE ISSUING BANK AND EACH BANK HEREBY IRREVOCABLY WAIVE ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT TO WHICH IT IS A
PARTY OR ANY MATTER ARISING HEREUNDER OR THEREUNDER.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by their
duly authorized officers as of the date first above written.
OBLIGORS:
XXXXXXXX BEACH/XXXXXXX-SILEX, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Title: Vice President
-------------------------------------------
XXXXXXX-SILEX CANADA INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Title: Treasurer
-------------------------------------------
XXXXXXX-SILEX S.A. de C.V.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------------
Title: Sole Administrator
-------------------------------------------
BANKS:
THE CHASE MANHATTAN BANK,
as a Bank and as the Existing U.S. Agent
By: /s/ Xxx X. Xxxxxx
----------------------------------------------
Title: Vice President
-------------------------------------------
THE CHASE MANHATTAN BANK OF CANADA,
as a Bank and as the Existing Canadian Agent
By: /s/ Xxxxxxxxx Xxxx, Vice President
----------------------------------------------
By: /s/ Xx Xxxxxx, Vice President
----------------------------------------------
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Address: Key Center KEYBANK NATIONAL ASSOCIATION,
000 Xxxxxx Xxxxxx as a Bank and as the Successor
Xxxxxxxxx, Xxxx 00000-0000 U.S. Agent
Attn: Large Corporate Lending
Phone: (000) 000-0000 By: /s/ Xxxxxxxx X. Xxxx
Fax: (000) 000-0000 ---------------------------------
Title: Vice President
------------------------------
Address: 00 Xxxx Xxxxxx XXX XXXX XX XXXX XXXXXX,
8th Floor as a Bank and as the Successor
Xxxxxxx, Xxxxxxx X0X0X0 Canadian Agent
Phone: (000) 000-0000
Fax: (000) 000-0000 By: /s/ Xxxx XxXxx
---------------------------------
Title: Relationship Manager
------------------------------
FIRST CHICAGO NBD BANK
By: /s/ Xxxxxxx X. XxXxxxxxx
---------------------------------
Title: Vice President
------------------------------
ISTITUTO BANCARIO SAN PAOLO DI
TORINO - INSTITUTO MOBILIARE
ITALIANO SPA
By: /s/ Xxxx Xxxxxx
---------------------------------
Title: Vice President
------------------------------
and /s/ Xxxxx Xxxxxxx
---------------------------------
Title: DGM
------------------------------
CREDIT AGRICOLE INDOSUEZ
By: /s/ Xxxxx Xxxxx
---------------------------------
Title: F.V.P.
------------------------------
and /s/ Xxxxxx Xxxxxx
---------------------------------
Title: Senior Vice President
------------------------------
15
16
CRESTAR BANK
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------
Title: Vice President
------------------------------
16
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ANNEX 1
NOTICE OF RESIGNATION
The undersigned is the U. S. Agent under that certain Second Amended and
Restated Credit Agreement, dated as of October 11, 1990 and as amended and
restated as of April 18, 1995 (as amended by Amendment No. 1 dated as of March
29, 1996, Amendment No. 2 dated as of October 4, 1996, Amendment No. 3 dated as
of April 14, 1997, Amendment No. 4 dated as of April 22, 1998, Amendment No. 5
dated as of June 10, 1998, and Amendment No. 6 dated as of December 8, 1998 (as
the same may from time to time be further amended, restated or otherwise
modified) among XXXXXXXX BEACH/XXXXXXX-SILEX, INC., a Delaware corporation,
XXXXXXX-SILEX CANADA, INC., a corporation organized under the laws of the
Province of Ontario, Canada and XXXXXXX-SILEX S.A. DE C.V., a corporation
organized under the laws of Mexico; THE CHASE MANHATTAN BANK (successor by
merger to The Chase Manhattan Bank National Association) (the "U.S. Agent"),
KEYBANK NATIONAL ASSOCIATION (the "Successor U.S. Agent"), THE CHASE MANHATTAN
BANK OF CANADA, THE BANK OF NOVA SCOTIA, and each of the financial institutions
a party thereto (the "Credit Agreement"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement. In accordance with the terms and conditions of the Credit
Agreement, the undersigned hereby resigns as the U.S. Agent under the Credit
Agreement, hereby gives notice of such resignation as required by the Credit
Agreement, and hereby agrees to be bound by the terms of the Credit Agreement
applicable to Agents after resignation. The undersigned hereby agrees to execute
and deliver all such documents and do all other things necessary or desirable to
effect the appointment of the Successor U.S. Agent with all rights, title and
interest in connection with the Credit Agreement as currently held by the
undersigned as the U.S. Agent.
IN WITNESS WHEREOF, the undersigned has caused this Notice of Resignation
to be duly executed on its behalf by its duly authorized officer as of December
8, 1998.
THE CHASE MANHATTAN BANK,
as the U.S. Agent
By: /s/ Xxx X. Xxxxxx
-------------------------------------
Title: Vice President
----------------------------------
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ANNEX 2
NOTICE OF RESIGNATION
The undersigned is the Canadian Agent under that certain Second Amended
and Restated Credit Agreement, dated as of October 11, 1990 and as amended and
restated as of April 18, 1995 (as amended by Amendment No. 1 dated as of March
29, 1996, Amendment No. 2 dated as of October 4, 1996, Amendment No. 3 dated as
of April 14, 1997, Amendment No. 4 dated as of April 22, 1998, Amendment No. 5
dated as of June 10, 1998, and Amendment No. 6 dated as of December 8, 1998 (as
the same may from time to time be further amended, restated or otherwise
modified) among XXXXXXXX BEACH/XXXXXXX-SILEX, INC., a Delaware corporation,
XXXXXXX-SILEX CANADA, INC., a corporation organized under the laws of the
Province of Ontario, Canada and XXXXXXX-SILEX S.A. DE C.V., a corporation
organized under the laws of Mexico; THE CHASE MANHATTAN BANK (successor by
merger to The Chase Manhattan Bank National Association), KEYBANK NATIONAL
ASSOCIATION, THE CHASE MANHATTAN BANK OF CANADA (the "Canadian Agent"), THE BANK
OF NOVA SCOTIA (the "Successor Canadian Agent"), and each of the financial
institutions a party thereto (the "Credit Agreement"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings attributed to
them in the Credit Agreement. In accordance with the terms and conditions of the
Credit Agreement, the undersigned hereby resigns as the Canadian Agent under the
Credit Agreement, hereby gives notice of such resignation as required by the
Credit Agreement, and hereby agrees to be bound by the terms of the Credit
Agreement applicable to Agents after resignation. The undersigned hereby agrees
to execute and deliver all such documents and do all other things necessary or
desirable to effect the appointment of the Successor Canadian Agent with all
rights, title and interest in connection with the Credit Agreement as currently
held by the undersigned as the Canadian Agent.
IN WITNESS WHEREOF, the undersigned has caused this Notice of Resignation
to be duly executed on its behalf by its duly authorized officer as of
December 8, 1998.
THE CHASE MANHATTAN BANK OF CANADA,
as the Canadian Agent
By: /s/ Xxxxxxxxx Xxxx
-------------------------------------
Title: Vice President
----------------------------------
18
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EXHIBIT A-1
FORM OF MONEY MARKET NOTE
AMENDED AND RESTATED MONEY MARKET NOTE
As of April 18, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXXXX BEACH/XXXXXXX-SILEX, INC., a Delaware
corporation (the "Company"), hereby promises to pay to _______________________
(the "Bank"), for the account of its Applicable Lending Office provided for by
the Credit Agreement referred to below, at the principal office of KeyBank
National Association at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, the
aggregate unpaid principal amount of the Money Market Loans made by the Bank to
the Company under the Credit Agreement, in lawful money of the United States of
America and in immediately available funds, on the dates and in the principal
amounts provided by the Credit Agreement, and to pay interest on the unpaid
principal amount of each such Money Market Loan, at such office, in like money
and funds, for the period commencing on the date of such Money Market Loan until
such Money Market Loan shall be paid in full, at the rates per annum and on the
dates provided in the Credit Agreement.
The date, amount, type, interest rate and maturity date of each Money
Market Loan made by the Bank to the Company and each payment made on account of
the principal thereof, shall be recorded by the Bank on its books and, prior to
any transfer of this Note, endorsed by the Bank on the schedule attached hereto
or any continuation thereof, provided that any failure of the Bank to make any
such recordation or endorsement shall not affect the obligations of the Company
to make a payment when due of any amount owing under the Credit Agreement or
hereunder in respect of the Money Market Loans made by the Bank.
This Note is one of the Money Market Notes referred to in the Second
Amended and Restated Credit Agreement, dated as of October 11, 1990, and as
amended and restated as of April 18, 1995, as amended and as the same may from
time to time be further amended, restated or otherwise modified (the "Credit
Agreement"), among the Company, the other Obligors named therein, the banks and
other financial institutions named therein (including the Bank), KeyBank
National Association, as U.S. Agent, and The Bank of Nova Scotia, as Canadian
Agent, evidences Money Market Loans made by the Bank thereunder. This Note
amends and restates the Money Market Note issued pursuant to the Second Amended
and Restated Credit Agreement and does not constitute
19
20
a novation of such Note or the Money Market Loans evidenced thereby. Terms used
but not defined in this Note have the respective meanings assigned to them in
the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Money
Market Loans upon the terms and conditions specified therein.
Except as permitted by Section 12.06 of the Credit Agreement, this Note
may not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
COMPANY, EACH OBLIGOR, EACH AGENT AND BANK HEREBY IRREVOCABLY WAIVE ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS NOTE OR ANY OTHER DOCUMENT TO WHICH IT IS A PARTY OR ANY
MATTER ARISING HEREUNDER OR THEREUNDER.
XXXXXXXX BEACH/XXXXXXX-SILEX, INC.
By:______________________________________
Title:___________________________________
20
21
SCHEDULE OF LOANS
This Note evidences Loans made under the Credit Agreement to the Company,
on the dates, in the principal amounts, of the Types, bearing interest at the
rates and maturing on the dates set forth below, subject to the payments and
prepayments of principal set forth below:
Principal
Date Amount Type Maturity Amount Unpaid
of of of Interest Date of Paid or Principal Notation
Loan Loan Loan Rate Loan Prepaid Amount Made By
---- ---- ---- ---- ---- ------- ------ -------
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EXHIBIT A-2
FORM OF SERIES A R/C NOTE
AMENDED AND RESTATED SECURED PROMISSORY NOTE
U.S. $__________________
As of October 11, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXXXX BEACH/XXXXXXX-SILEX, INC., a Delaware
corporation (the "Company"), hereby promises to pay to _______________________
(the "Bank"), for the account of its Applicable Lending Office provided for by
the Credit Agreement referred to below, at the principal office of KeyBank
National Association at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000, the
principal sum of ___________________ U.S. Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Series A R/C Loans made
by the Bank to the Company under the Credit Agreement), in lawful money of the
United States of America and in immediately available funds, on the Revolving
Credit Termination Date, and to pay interest on the unpaid principal amount of
each such Series A R/C Loan, at such office, in like money and funds, for the
period commencing on the date of such Series A R/C Loan until such Series A R/C
Loan shall be paid in full, at the rates per annum and on the dates provided in
the Credit Agreement.
The amount and type of, the rate of interest on, and the duration of each
Interest Period for, each Series A R/C Loan made by the Bank to the Company
under the Credit Agreement, the date such Series A R/C Loan is made or Converted
from a Loan of another type, and the amount of each payment or prepayment made
on account of the principal thereof, shall be recorded by the Bank on its books
and, prior to any transfer of this Note, endorsed by the Bank on the schedule
attached hereto or any continuation thereof, provided that any failure by such
Bank to make any such endorsement (or any error in any such endorsement) shall
not affect the obligations of the Company hereunder.
This Note is one of the Series A R/C Notes referred to in the Second
Amended and Restated Credit Agreement, dated as of October 11, 1990, and as
amended and restated as of April 18, 1995, as amended and as the same may from
time to time be further amended, restated or otherwise modified (the "Credit
Agreement"), among the Company, the other Obligors named therein, the banks and
other financial institutions named therein (including the Bank), KeyBank
National Association, as U.S. Agent, and The Bank of Nova Scotia, as Canadian
Agent, evidences Series A R/C Loans made by the Bank thereunder and is entitled
to the benefits of certain security as further described
22
23
therein. This Note amends and restates the Series A R/C Note issued pursuant to
the Second Amended and Restated Credit Agreement and does not constitute a
novation of such Note or the Series A R/C Loans evidenced thereby. Capitalized
terms used in this Note have the respective meanings assigned to them in the
Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Series A
R/C Loans upon the terms and conditions specified therein.
The Company hereby waives presentment, demand, protest or other
formalities of any kind with respect to this Note.
Except as permitted by Section 12.06 of the Credit Agreement, this Note
may not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
COMPANY, EACH OBLIGOR, EACH AGENT AND BANK HEREBY IRREVOCABLY WAIVE ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS NOTE OR ANY OTHER DOCUMENT TO WHICH IT IS A PARTY OR ANY
MATTER ARISING HEREUNDER OR THEREUNDER.
XXXXXXXX BEACH/XXXXXXX-SILEX, INC.
By:______________________________________
Title:___________________________________
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SCHEDULE OF LOANS
Date Principal
Loan Amount Type Amount Unpaid
Made or of of Interest Paid or Principal Notation
Converted Loan Loan Period Prepaid Amount Made By
--------- ---- ---- ------ ------- ------ -------
24
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EXHIBIT A-3
FORM OF SERIES B R/C NOTE
AMENDED AND RESTATED SECURED PROMISSORY NOTE
CAN $__________________
As of October 11, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXXX-SILEX CANADA, INC., a corporation
incorporated under the laws of the Province of Ontario, Canada ("PSC"), hereby
promises to pay to _______________________ (the "Bank"), for the account of its
Applicable Lending Office provided for by the Credit Agreement referred to
below, at the principal office of The Bank of Nova Scotia, 00 Xxxx Xxxxxx,
Xxxxxxx, Xxxxxxx X0X0X0, the principal sum of ___________________ Canadian
Dollars (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Series B R/C Loans made by the Bank to PSC under the Credit
Agreement), in lawful money of Canada and in immediately available funds, on the
Revolving Credit Termination Date, and to pay interest on the unpaid principal
amount of each such Series B R/C Loan, at such office, in like money and funds,
for the period commencing on the date of such Series B R/C Loan until such
Series B R/C Loan shall be paid in full, at the rates per annum and on the dates
provided in the Credit Agreement.
The amount of each Series B R/C Loan made by the Bank to PSC under the
Credit Agreement, the date such Series B R/C Loan is made and the amount of each
payment or prepayment made on account of the principal thereof, shall be
recorded by the Bank on its books and, prior to any transfer of this Note,
endorsed by the Bank on the schedule attached hereto or any continuation
thereof, provided that any failure by such Bank to make any such endorsement (or
any error in any such endorsement) shall not affect the obligations of the
Company hereunder.
This Note is one of the Series B R/C Notes referred to in the Second
Amended and Restated Credit Agreement, dated as of October 11, 1990, and as
amended and restated as of April 18, 1995, as amended and as the same may from
time to time be further amended, restated or otherwise modified (the "Credit
Agreement"), among Xxxxxxxx Beach/Xxxxxxx-Silex, Inc., PSC, the other Obligors
named therein, the banks and other financial institutions named therein
(including the Bank), KeyBank National Association, as U.S. Agent, and The Bank
of Nova Scotia, as Canadian Agent, evidences Series B R/C Loans made by the Bank
thereunder and is entitled to the benefits of certain security as further
described therein. This Note amends and restates the Series B R/C
25
26
Note issued pursuant to the Second Amended and Restated Credit Agreement and
does not constitute a novation of such Note or the Series B R/C Loans evidenced
thereby. Capitalized terms used in this Note have the respective meanings
assigned to them in the Credit Agreement.
The Credit Agreement provides for the acceleration of the maturity of
this Note upon the occurrence of certain events and for prepayments of Series B
R/C Loans upon the terms and conditions specified therein.
PSC hereby waives presentment, demand, protest or other formalities of
any kind with respect to this Note.
Except as permitted by Section 12.06 of the Credit Agreement, this Note
may not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PSC,
THE COMPANY, EACH OBLIGOR, EACH AGENT AND BANK HEREBY IRREVOCABLY WAIVE ALL
RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF
OR IN CONNECTION WITH THIS NOTE OR ANY OTHER DOCUMENT TO WHICH IT IS A PARTY OR
ANY MATTER ARISING HEREUNDER OR THEREUNDER.
XXXXXXX-SILEX CANADA, INC.
By: _____________________________________
Title____________________________________
26
27
SCHEDULE OF LOANS
Principal
Date Amount Amount Unpaid
Loan of Paid or Principal Notation
Made Loan Prepaid Amount Made By
---- ---- ------- ------ -------
27
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EXHIBIT A-4
FORM OF LETTER OF CREDIT NOTE
AMENDED AND RESTATED SECURED PROMISSORY NOTE
U.S. $__________________
As of October 11, 0000
Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, XXXXXXXX BEACH/XXXXXXX-SILEX, INC., a Delaware
corporation (the "Company"), hereby promises to pay to _______________________
(the "Bank"), for the account of its Applicable Lending Office provided for by
the Credit Agreement referred to below, at the principal office of KeyBank
National Association at 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxx 00000-0000 the
principal sum of ___________________ U.S. Dollars (or such lesser amount as
shall equal the aggregate unpaid principal amount of the Reimbursement
Obligations of the Company payable to the Bank under the Credit Agreement), in
lawful money of the United States of America and in immediately available funds,
ON DEMAND, or, if no demand is made, on the Revolving Credit Termination Date,
and to pay interest, ON DEMAND, or, if no demand is made, on the Revolving
Credit Termination Date, on the unpaid amount of each such Reimbursement
Obligation, at such office, in like money and funds, for the period from and
including the date such Reimbursement Obligation arises to but not including the
date such Reimbursement Obligation shall be paid in full, at the rates per annum
provided in the Credit Agreement.
The amount of each Reimbursement Obligation of the Company payable to the
Bank under the Credit Agreement, the date such Reimbursement Obligation arises,
and the amount of each payment or prepayment made on account thereof, shall be
recorded by the Bank on its books and, prior to any transfer of this Letter of
Credit Note, endorsed by the Bank on the schedule attached hereto or any
continuation thereof, provided that any failure by such Bank to make any such
endorsement (or any error in such endorsement) shall not affect the obligations
of the Company hereunder.
This Note is the Letter of Credit Note referred to in the Second Amended
and Restated Credit Agreement, dated as of October 11, 1990, and as amended and
restated as of April 18, 1995, as amended and as the same may from time to time
be further amended, restated or otherwise modified (the "Credit Agreement"),
among the Company, the other Obligors named therein, the banks and other
financial institutions named therein (including the Bank), KeyBank National
Association, as U.S. Agent, and The Bank of Nova Scotia, as Canadian Agent,
evidences Reimbursement Obligations payable by the
28
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Company to the Bank thereunder and is entitled to the benefits of certain
security as further described therein. This Note amends and restates the Letter
of Credit Note issued pursuant to the Second Amended and Restated Credit
Agreement and does not constitute a novation of such Note or the Letter of
Credit Liabilities evidenced thereby. Capitalized terms used in this Note have
the respective meanings assigned to them in the Credit Agreement.
The Company hereby waives presentment, demand, protest or other
formalities of any kind with respect to this Note.
Except as permitted by Section 12.06 of the Credit Agreement, this Note
may not be assigned by the Bank to any other Person.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
WAIVER OF TRIAL BY JURY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
COMPANY, EACH OBLIGOR, EACH AGENT AND BANK HEREBY IRREVOCABLY WAIVE ALL RIGHT OF
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN
CONNECTION WITH THIS NOTE OR ANY OTHER DOCUMENT TO WHICH IT IS A PARTY OR ANY
MATTER ARISING HEREUNDER OR THEREUNDER.
XXXXXXXX BEACH/XXXXXXX-SILEX, INC.
By: _____________________________________
Title:___________________________________
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SCHEDULE OF LETTER OF CREDIT ADVANCES
Date of Amount of Unpaid
Reimbursement Reimbursement Amount Principal Notation
Obligation Obligation Paid Amount Made By
---------- ---------- ---- ------ -------
30
