07/24/97
TENTH AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THE TENTH AMENDMENT TO LOAN AND SECURITY AGREEMENT ("Tenth Amendment")
is made as of the 25th day of July, 1997 by and among Xxxxxx Products Ltd., a
Delaware corporation having its chief executive office at 000 XxXxxx Xxxxxx,
Xxxxxxxxxxxx, Xxxxxxxx 00000 ("Borrower"), the lenders who are or who may from
time to time become signatories hereto ("Lenders") and Fleet Capital
Corporation, a Connecticut corporation having an office at 00000 Xxxxxxx Xxxxx,
Xxxxxxxx, Xxxxxxxxx 00000 ("FCC") which is the successor-in-interest to Barclays
Business Credit, Inc., as agent for the Lenders ("FCC," in such capacity being
"Agent").
W I T N E S S E T H:
WHEREAS, FCC, as Agent and Lender, and Borrower entered into a certain
Loan and Security Agreement dated as of July 14, 1994 as amended by (i) a
certain First Amendment to Loan and Security Agreement ("First Amendment") dated
as of September 30, 1994 by and among Agent, Borrower and the lender signatories
thereto, (ii) a certain Second Amendment to Loan and Security Agreement ("Second
Amendment") dated as of October 20, 1994 by and among Agent, Borrower and the
lender signatories thereto, (iii) a certain First (sic) Amendment to Loan and
Security Agreement dated as of March 29, 1995 by and among Agent, Borrower and
the lender signatories thereto, (iv) a certain Fourth Amendment to Loan and
Security Agreement dated as of October 30, 1995 by and among Agent, Borrower and
the lender signatories thereto, (v) a certain Fifth Amendment to Loan and
Security Agreement dated as of June 30, 1996 by and among Agent, Borrower and
the lender signatories thereto, (vi) a certain Sixth Amendment to Loan and
Security Agreement dated as of August 30, 1996 by and among Agent, Borrower and
the Lender signatories thereto, (vii) a certain Seventh Amendment to Loan and
Security Agreement dated as of October 22, 1996 by and among Agent, Borrower and
the Lender signatories thereto, (viii) a certain Eighth Amendment to Loan and
Security Agreement dated as of March 13, 1997 by and among Agent, Borrower and
the Lender signatories thereto and (ix) a certain Ninth Amendment to Loan and
Security Agreement dated as of May 15, 1997 by and among Agent, Borrower and the
Lender signatories thereto. Said Loan and Security Agreement, as amended from
time to time, is hereinafter referred to as the "Loan Agreement"; and
WHEREAS, Borrower, Lenders and Agent desire to amend and modify certain
provisions of the Loan Agreement.
NOW THEREFORE, in consideration of the premises, the mutual covenants
and agreements herein contained, and any extension of credit heretofore, now or
hereafter made by Lenders and Agent to Borrower, the parties hereto hereby agree
as follows:
1. Definitions. Except as otherwise specifically provided
for herein, all capitalized terms used herein without definition
shall have the meanings given to them in the Loan Agreement.
2. Amended Definitions and Deleted Definitions. (a) The definitions of
"Borrowing Base", "Commitment Termination Date", "Interest Coverage Ratio",
"LIBOR Option," "LIBOR Rate," "LIBOR Request", "LIBOR Revolver Added Rate",
"LIBOR Revolving Credit Portion", "Loans", "Maximum Revolving Credit Loan",
"Mortgages" "Prime Revolver Added Rate", "Prime Revolving Credit Portion",
"Statutory Reserves" and "Tax" contained in Section 1.1 of the Loan Agreement
are hereby deleted and the following are inserted in their stead:
"1.1 Defined Terms. When used herein, the following terms shall have
the following meanings (terms defined in the singular to have the same meaning
when used in the plural and vice versa):
* * *
"Borrowing Base - as at any date of determination
thereof, an amount equal to the lesser of:
(a) the Maximum Revolving Credit Loan; and
(b) an amount equal to:
(i) eighty-five percent (85%) or such lesser
percentage as Agent in its reasonable discretion deems
appropriate, of the net amount of Eligible Accounts
outstanding at such date:
PLUS
(ii) the lesser of (A) Forty Million Dollars
($40,000,000) and (B) sixty percent (60%) or such lesser
percentage as Agent in its reasonable discretion deems
appropriate of the value of Eligible Inventory at such date
consisting of raw materials and finished goods, calculated on
the basis of the lower of cost or market, as determined by
Agent, in its reasonable discretion, on a first-in, first-out
("FIFO") basis;
MINUS (subtract from the lesser of clauses
(a) and (b) above)
(c) an amount equal to the sum of (A) the face amount of all
LC Guaranties and Letters of Credit issued by Agent or Bank and
outstanding at such date, plus (B) any amounts which Agent and/or
Lenders may then be obligated to pay for the account of Borrower under
this Agreement.
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For purposes hereof, the net amount of Eligible Accounts at
any time shall be the face amount of such Eligible Accounts less any
and all returns, rebates, discounts (which, if granted outside the
ordinary course of business as in effect on the Closing Date, may, at
Agent's option, be calculated on shortest terms), credits, allowances
or excise taxes of any nature at any time issued, owing, claimed by
Account Debtors, granted, outstanding or payable in connection with
such Accounts at such time, all as determined by Agent in the
reasonable exercise of its discretion.
* * *
Commitment Termination Date - the earliest of (i) July 14,
2000, (ii) the date of termination of the commitment to make further
Revolving Credit Loans pursuant to Section 3.3 or 3.4 hereof, and (iii)
the date of termination of the commitment to make further Revolving
Credit Loans pursuant to Section 11.2 hereof.
* * *
Interest Coverage Ratio - with respect to any fiscal period,
the ratio of Borrower's (a) net income before interest, income tax
expense, depreciation expense, amortization expense, any gain or loss
(in excess of $40,000 within the immediately previous twelve month
period) from the sale of assets outside the ordinary course of business
and any charge or expense to net income (in an amount not to exceed
$5,500,000 in total for fiscal year 1996 and the partial fiscal year
ended July 5, 1997) in respect to the restructuring of Borrower for or
taken within such period to (b) Borrower's interest expense for such
period.
* * *
LIBOR Added Rate - Two and one quarter percent (21/4%).
LIBOR Option - the option granted pursuant to Section 3.1(B)
to have the interest on all or any portion of the principal amounts on
the Revolving Credit Loan or the Acquisition Term Loans based on a
LIBOR Rate.
* * *
LIBOR Rate - with respect to any LIBOR Portion for the related
LIBOR Period, an interest rate per annum (rounded upwards, if
necessary, to the next higher 1/8 of 1%) equal to the product of (a)
the Base LIBOR Rate (as hereinafter defined) and (b) Statutory
Reserves. For purposes of this
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definition, the term "Base LIBOR Rate" shall mean the rate (rounded to
the nearest 1/8 of 1% or, if there is no nearest 1/8 of 1%, the next
higher 1/8 of 1%) at which deposits of U.S. dollars approximately equal
in principal amount to the LIBOR Portion specified in the applicable
LIBOR Request are offered to Bank by prime banks, in the London
interbank foreign currency deposits market at approximately 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such
LIBOR Period, for delivery on the first day of such LIBOR Period. Each
determination of Agent of any LIBOR Rate shall in the absence of
manifest error, be conclusive, and at Borrower's request, Agent shall
demonstrate the basis for such determination.
LIBOR Request - a notice in writing (or by telephonic
communication confirmed by telex, telecopy or other facsimile
transmission on the same day as the telephone request) from Borrower to
Agent requesting that interest on the Revolving Credit Loan or
Acquisition Term Loans be based on the LIBOR Rate, specifying: (i) the
first day of the LIBOR Period, (ii) the length of the LIBOR Period
consistent with the definition of that term, and (iii) a dollar amount
of the LIBOR Portion consistent with the definition of such terms.
LIBOR Portion - that portion of the Revolving Credit Loan
and/or Acquisition Term Loans specified in a LIBOR Request (including
any Revolving Credit Loan or Acquisition Term Loan which is being
borrowed by Borrower concurrently with such LIBOR Request) which is not
less than $2,500,000 and an integral multiple of $100,000, which does
not exceed the outstanding balance of Revolving Credit Loans and
Acquisition Term Loans (including any Revolving Credit Loan or
Acquisition Term Loan, as applicable, which is being borrowed by
Borrower concurrently with such LIBOR Request) not already subject to a
LIBOR Option and, which, as of the date of the LIBOR Request specifying
such LIBOR Portion, has met the conditions for basing interest on the
LIBOR Rate in Section 3.1(B) hereof and the LIBOR Period of which was
commenced and not terminated. Each LIBOR Portion shall be allocated
among Lenders in accordance with their respective Revolving Credit
Percentage and/or Acquisition Term Loan Percentage, as applicable.
* * *
Loans - all loans and advances of any kind made by any Lender
pursuant to the Agreement.
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* * *
Maximum Revolving Credit Loan - Seventy Five Million Dollars
($75,000,000); provided, however, that on at least thirty (30) days
prior written notice to Agent and Lenders, Borrower may increase the
Maximum Revolving Credit Loan to an amount not to exceed Eighty Million
Dollars ($80,000,000) if (x) any such increase is made for the purpose
of funding the purchase price of a Permitted Acquisition and (y) after
giving effect to any such increase, there are no existing and
continuing Defaults or Events of Default; and provided, further,
however, that on at least thirty (30) days' prior written notice to
Agent, Borrower may reduce the amount of Maximum Revolving Credit Loan
by an amount not less than One Million Dollars ($1,000,000) and an
integral multiple of One Hundred Thousand Dollars ($100,000). Once the
amount of the Maximum Revolving Credit Loan has been reduced by
Borrower, it shall not be thereafter increased.
.
* * *
Mortgages - the mortgages or deeds of trust to be executed by
Borrower on or about the Closing Date (in respect to the real Property
specified in clauses (i) and (ii) below) or the Tenth Amendment
Effective Date (in respect to the real Property specified in clause
(iii) below) in favor of Agent, for its benefit and the ratable benefit
of Lenders by which Borrower shall grant and convey to Agent, for its
benefit and the ratable benefit of Lenders, as security for the
Obligations, a Lien upon the real Property of Borrower located in (i)
Springfield, Oregon, (ii) Lexington, North Carolina and (iii) Oshkosh,
Wisconsin. Agent and Lenders acknowledge that Borrower has prior to the
Tenth Amendment Effective Date sold the real Property located in (i)
Springfield, Oregon and (ii) Lexington, North Carolina.
* * *
Prime Added Rate - one-half of one percent (1/2%).
Prime Portion - that portion of the Revolving Credit Loan
and/or Acquisition Term Loans not subject to a LIBOR Option.
* * *
Statutory Reserves - a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is
the number one minus the aggregate of the maximum reserve percentages
(including, without limitation, any marginal, special, emergency or
supplemental
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reserves), expressed as a decimal, established by the Board and any
other banking authority to which Bank or any Lender is subject for
Eurocurrency Liabilities (as defined in Regulation D of the Board or
any successor thereto). Such reserve percentages shall include, without
limitation, those imposed under such Regulation D. LIBOR Portions shall
be deemed to constitute Eurocurrency Liabilities and as such shall be
deemed to be subject to such reserve requirements without benefit of or
credit for proration, exceptions or offsets which may be available from
time to time to Bank or any Lender under such Regulation D. Statutory
Reserves shall be adjusted automatically on and as of the effective
date of any change in any reserve percentage.
* * *
Tax - in relation to any LIBOR Portion and the applicable
LIBOR Rate, any tax, levy, impost, duty, deduction, withholding or
charges of whatever nature required by any Legal Requirement (i) to be
paid by any Lender and/or (ii) to be withheld or deducted from any
payment otherwise required hereby to be made by Borrower to any Lender;
provided, that the term "Tax" shall not include any taxes imposed upon
the net income of any Lender."
(b) The definitions of "Interest Rate Coverage Ratio" and "Inventory
Percentage" are hereby deleted from the Loan Agreement.
3. Additional Definitions. The following are inserted
into Section 1.1 of the Loan Agreement:
"1.1 Defined Terms. When used herein, the following terms
shall have the following meanings (terms defined in the singular
to have the same meaning when used in the plural and vice versa).
Acquisition Conditions - the items (i) through (x) contained
in the definition of Permitted Acquisitions.
Acquisition Term Loan Commitment - as defined in Section 2.6
of this Agreement.
Acquisition Term Loan(s) - as defined in Section 2.6 of this
Agreement.
Acquisition Term Note(s) - as defined in Section 2.6 of this
Agreement.
Acquisition Term Loan Percentage - as defined in Section 2.6
of this Agreement.
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* * *
B of A - Bank of America National Trust and Savings
Association, successor by merger to Bank of America Illinois. All
references, to "BAI" or "Bank of America Illinois" in the Agreement and
the other Loan Documents shall be deemed to be references to B of A or
Bank of America National Trust and Savings Association as applicable.
* * *
Fixed Charge Coverage Ratio - with respect to any fiscal
period, the ratio of Borrower's (a) net income plus (i) depreciation
and amortization expense, minus (ii) Capital Expenditures (other than
the principal portion of payments with respect to Capitalized Lease
Obligations) made within such period to (b) the sum of (i) the
principal portion of payments made within such period with respect to
Capitalized Lease Obligations, plus (ii) the total amount of Retirement
Income Plan payments made within such period plus (iii) the aggregate
amount of all principal installments scheduled to be made within such
period in respect to outstanding Acquisition Term Loans.
Permitted Acquisition(s) - means any acquisition(s) by
Borrower of assets or all of the outstanding capital stock of a Person,
which in either case, constitutes a business unit and which acquisition
is closed prior to the Commitment Termination Date so long as each of
the following conditions precedent (collectively, the "Acquisition
Conditions") have been fulfilled to the satisfaction of Agent:
(i) no Default or Event of Default shall have
occurred and be continuing at the time of such
acquisition or would occur as a result thereof;
(ii) the business unit being acquired (the "Target")
is primarily located in the United States of America and is in
the same line of business as Borrower's Xxxxxx Distribution
Division;
(iii) the aggregate purchase price for the
Target does not exceed Seven Million Five Hundred
Dollars ($7,500,000) ;
(iv) average Excess Revolving Credit Loan
Availability for the thirty days prior to the consummation of
the proposed acquisition and Excess Revolving Credit Loan
Availability immediately after giving effect to the proposed
acquisition equals or exceeds Eight Million Dollars
($8,000,000);
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(v) Borrower and Target shall have executed such
amendments to the Loan Agreement, assumption agreements,
security agreements, guarantees, financing statements,
promissory notes or other loan documentation as reasonably
requested by Agent to, inter alia, make the Target a guarantor
of the Obligations or co-borrower under the Loan Agreement, as
determined by Agent in its sole discretion, and to grant to
Agent for its benefit and the ratable benefit of Lenders a
first, perfected security interest in substantially all of the
assets of the Target;
(vi) Agent shall have received projections of
Borrower's and the Target's pro forma financial projections,
in form and substance reasonably acceptable to Agent, which
projections shall demonstrate to Agent's satisfaction that,
upon the consummation of the proposed acquisition, Borrower
and the Target on a consolidated basis will remain in
compliance with the provisions of Section 9.3 of the Loan
Agreement;
(vii) Agent shall have received a certified copy of
resolutions of the Board of Directors (or the Executive
Committee of the Board of Directors, if so empowered) of
Borrower and the Board of Directors (or comparable governing
body) of Target approving the acquisition of the Target;
(viii) Agent or any Lender, if, in its sole
discretion has elected to do so or has requested Agent to do
so, shall have completed an audit of the Target's working
capital assets (inventory and accounts receivable) to be
included in the Borrowing Base and the results of such audit
shall have been satisfactory to Agent;
(ix) Borrower's Interest Coverage Ratio (computed
without adding back to net income any restructuring charge or
reserve) for the twelve month period most recently ended prior
to the closing date for the proposed acquisition shall be 2.0
to 1 or greater. Borrower, Lenders and Agent agree that the
Acquisition Condition contained in this clause (ix) may only
be waived with the consent of all Lenders; and
(x) Agent shall have received a certificate, in form,
scope and substance acceptable to the Agent and in such detail
as Agent shall have required, of the chief financial officer
of the Borrower demonstrating or confirming, as the case may
be, satisfaction of each of the conditions precedent listed in
clauses (i)
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through (ix) above (such certificate being required to be
delivered to Agent at least fifteen (15) Business Days' prior
to the date of any such acquisition) and Agent shall not have,
within ten (10) Business Days following such delivery,
objected to the designation of such acquisition as a
"Permitted Acquisition" or questioned any calculation or
assertion contained in such certificate, in any case, in
writing."
* * *
Tenth Amendment Effective Date - the date on which
all of the conditions precedent listed in Section 14 of the
Tenth Amendment have been satisfied or waived.
* * *
Wahlfeld Acquisition Documents - that certain Asset
Purchase Agreement by and among Xxxxxx Products Ltd., Wahlfeld
Manufacturing Company and Xxx Xxxxxxxx and Xxxx Xxxxxxxx and
dated July 15, 1997, all exhibits and schedules thereto, all
amendments and modifications thereto and all other documents,
instruments and agreements executed in connection therewith
and the transactions contemplated thereby. Borrower represents
and warrants to Agent and Lenders that true and correct copies
of all Wahlfeld Acquisition Documents existing as of the Tenth
Amendment Effective Date have been delivered by Borrower to
Agent.
4. Acquisition Term Loan and Acquisition Term Loan
Commitments. The following is inserted into the Loan Agreement
as Section 2.6:
"2.6 Acquisition Term Loan; Acquisition Term Loan Commitment. (A)
During the period between the Tenth Amendment Effective Date and the Commitment
Termination Date, each Lender agrees, for so long as no Default or Event of
Default exists, to make acquisition term loans ("Acquisition Term Loan(s)") to
Borrower to finance Permitted Acquisitions. The aggregate amount of the
Acquisition Term Loans to be made by each Lender (such Lender's "Acquisition
Term Loan Commitment"), pursuant to the terms hereof, shall be the amount set
below such Lender's name on the signature pages hereof. The aggregate principal
amount of the Acquisition Term Loan Commitments is Ten Million Dollars
($10,000,000). The percentage equal to the quotient of (x) each Lender's
Acquisition Term Loan Commitment, divided by (y) the aggregate of all
Acquisition Term Loan Commitments, is that Lender's "Acquisition Term Loan
Percentage." Subject to all of the terms and conditions of this Agreement,
including, without limitation, satisfaction of each of the Acquisition
Conditions in respect to the applicable potential acquisition, each Lender
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agrees, for so long as no Default or Event of Default exists, to make
Acquisition Term Loans to Borrower from time to time, as requested by Borrower
in accordance with the terms of Section 3.1 hereof, up to a maximum principal
amount at any time outstanding equal to the product of (A) Ten Million Dollars
($10,000,000), multiplied by (B) such Lender's Acquisition Term Loan Percentage.
No portion of any Acquisition Term Loan may be reborrowed following repayment or
prepayment thereof. The foregoing notwithstanding, Lenders shall not be required
to make any Acquisition Term Loans, unless, inter alia, all Acquisition
Conditions in respect to the applicable acquisition have been satisfied.
(B) Each Acquisition Term Loan shall be in an amount equal to One
Million Dollars ($1,000,000) or an integral multiple of One Hundred Thousand
Dollars ($100,000) in excess thereof and shall be made on the date specified in
the written notice or telephonic notice (confirmed in writing) for such
Acquisition Term Loan, as described in Section 2.6(D) hereof. All such
Acquisition Term Loans shall be secured by the Collateral. The principal amount
of any Acquisition Term Loan shall be amortized on the basis of sixty (60)
monthly payments, commencing the first day of the calendar month after the
calendar month in which the Acquisition Term Loan is made (September 1, 1997 in
respect to the initial Acquisition Term Loan); provided that the entire
principal balance of all Acquisition Term Loans shall be due on the Commitment
Termination Date. The amount of such scheduled monthly payments shall be 1.167%
of the initial principal amount of such Acquisition Term Loan for the first
thirty-six monthly payments, 2.417% of the principal amount of such Acquisition
Term Loan for the next twenty-three (23) monthly payments, and the remaining
outstanding principal balance of such Acquisition Term Loan for the sixtieth
(60th) monthly payment. Each Acquisition Term Loan shall be evidenced by
promissory notes to be executed and delivered by Borrower to Lenders on or prior
to the date of such Acquisition Term Loan, the form of which is attached hereto
and made a part hereof as Exhibit A-1 (the "Acquisition Term Note(s)"), shall
bear interest as specified in Section 3.1 and shall be repayable in accordance
with the terms hereof and of the Acquisition Term Notes.
(C) Except as otherwise provided in Section 2.6(D), each Acquisition
Term Loan shall be made on notice, given not later than 11:00 a.m. (Milwaukee
time) on the Business Day of the Acquisition Term Loan, by Borrower to Agent,
which shall give to each Lender prompt written notice thereof by telecopier,
telex or cable. Each such notice (a "Notice of Acquisition Term Loan") shall be
in writing or by telephone to Agent at (000) 000-0000, confirmed immediately in
writing, specifying therein the requested date and amount of such Acquisition
Term Loan. Each Lender shall, not later than 2:00 p.m. (Milwaukee time) on each
requested date, wire to a bank designated by Agent the amount of
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that Lender's Acquisition Term Loan Percentage of the requested Acquisition Term
Loan. Agent shall, before 2:30 P.M. (Milwaukee time) on the date of the proposed
Acquisition Term Loan, subject to the provisions hereof, wire to a bank
designated by Borrower and reasonably acceptable to Agent, the amount of such
Acquisition Term Loan to the extent received from the Lenders. The failure of
any Lender to make the Acquisition Term Loan to be made by it shall not relieve
any other Lender of its obligation hereunder to make its Acquisition Term Loan.
Neither Agent nor any other Lender shall be responsible for the failure of any
other Lender to make the Acquisition Term Loan to be made by such other Lender.
The foregoing notwithstanding, unless otherwise notified by any Lender, Agent,
in its sole discretion, may, from its own funds, make a Acquisition Term Loan on
behalf of any Lender hereto. In such event, the Lender on behalf of whom Agent
made the Acquisition Term Loan shall reimburse Agent for the amount of
Acquisition Term Loan so made on its behalf, on a weekly (or more frequent basis
as determined by Agent, in its sole discretion) basis and the entire amount of
interest attributable to such Acquisition Term Loan for the period from the date
on which said Acquisition Term Loan was made by Agent on such Lender's behalf
until Agent is reimbursed by such Lender, shall be paid to Agent. The foregoing
notwithstanding, Lenders shall not be required to make any Acquisition Term
Loans, unless, inter alia, all Acquisition Conditions in respect to the
applicable acquisition have been satisfied.
If at any time one or more Lenders refuse or fail to make a requested
Revolving Credit Loan or Acquisition Term Loan when all conditions to a
Revolving Credit Loan or Acquisition Term Loan have been satisfied or waived,
then Agent may, at its option, but shall have no obligation whatsoever to,
purchase all, but not less than all, of the Revolving Credit Notes and
Acquisition Term Notes held by the Lender(s) who so fail or refuse, and to
assume such Lender's commitments to make future Revolving Credit Loan or
Acquisition Term Loans and each such Lender shall be obligated to sell and
transfer such Revolving Credit Notes and Acquisition Term Notes to Agent for a
price in cash equal to the principal balance outstanding plus all accrued but
unpaid interest thereon plus all accrued fees due any such Lender under the
terms hereof, and the foregoing provisions of this Section will be applicable to
Agent with respect to the Revolving Credit Notes or Acquisition Term Notes so
purchased by it. Any such purchase, however, shall not relieve any such Lender
from any breach of contract claims available to Agent and/or Borrower against
such Lender as a result of its failure to make any such Revolving Credit Loan or
Acquisition Term Loan.
(D) The first such Acquisition Term Loan shall, subject to all of the
terms and conditions contained herein, be made on the Tenth Amendment Effective
Date to fund, in part, the purchase price payable in connection with the
transactions contemplated by
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the Wahlfeld Acquisition Documents. Agent and Lenders agree to
waive compliance with the Acquisition Conditions in respect to
the acquisition contemplated by the Wahlfeld Acquisition
Documents and hereby consent to such acquisition.
5. Interest Rates and Unused Line Fee. Sections 3.1 (A),
(B) and (D) of the Loan Agreement are hereby deleted and the
following are inserted in their stead:
"3.1. Interest, Fees and Charges.
(A) Interest. (i) Interest shall accrue on the Prime Portion
outstanding at the end of each day (computed on the basis of a calendar year of
360 days) at a fluctuating rate per annum equal to the sum of Prime Added Rate
plus the Base Rate. After the date hereof, the foregoing rate of interest shall
be increased or decreased, as the case may be, by an amount equal to any
increase or decrease in the Base Rate, with such adjustments to be effective as
of the opening of business on the day that any such change in the Base Rate
becomes effective. The Base Rate in effect on the date hereof shall be the Base
Rate effective on the opening of business on the date hereof, but if this
Agreement is executed on a day that is not a Business Day, the Base Rate in
effect on the date hereof shall be the Base Rate effective as of the opening of
business on the last Business Day immediately preceding the date hereof.
(ii) Interest shall accrue on each LIBOR Portion
outstanding at the end of each day (computed on the basis of a calendar year of
360 days) at rates equal to the sum of the LIBOR Rate applicable to each such
LIBOR Portion plus the LIBOR Added Rate.
(B) LIBOR Option.
(i) Conditions for Basing Interest on the LIBOR
Rate. Upon the condition that:
(a) Agent shall have received a LIBOR
Request from Borrower at least three (3) Business Days prior
to the first day of the LIBOR Period requested;
(b) There shall have occurred no change
in applicable law which would make it unlawful for Lenders
to obtain deposits of U.S. dollars in the London
interbank foreign currency deposits market;
(c) As of the date of the LIBOR Request and
the first day of the LIBOR Period, there shall exist no
Default or Event of Default which has not been waived by
Required Lenders;
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(d) Agent shall not have determined in good
faith that Lenders are unable to determine the LIBOR Rate in
respect of the requested LIBOR Period or that Lenders are
unable to obtain deposits of U.S. dollars in the London
interbank foreign currency deposits market in the applicable
amounts and for the requested LIBOR Period; and
(e) As of the first date of the LIBOR
Period, there are no more than six outstanding LIBOR
Portions including the LIBOR Portion in question;
then interest on the LIBOR Portion requested during the LIBOR Period requested
will be based on the applicable LIBOR Rate. Agent shall give each Lender prompt
written notice by telecopier, telex or cable of any LIBOR Request made by
Borrower in accordance with the terms hereof.
(ii) Indemnification for Funding and Other Losses.
Each LIBOR Request shall be irrevocable and binding on Borrower. Borrower shall
indemnify Agent and Lenders as a result of any failure on the part of Borrower
to fulfill, on or before the date specified in any LIBOR Request, the applicable
conditions set forth in this Agreement or as a result of the prepayment of the
applicable LIBOR Portion prior to the last day of the applicable LIBOR Period,
including, without limitation, any loss (including loss of anticipated profits)
or expense incurred by reason of the liquidation or redeployment of deposits or
other funds acquired by Agent or Lenders to fund or maintain the requested LIBOR
Portion, when, as a result of such failure on the part of Borrower or prepayment
by Borrower, interest on such LIBOR Portion is not based on the applicable LIBOR
Rate for the requested LIBOR Period.
(iii) Change in Applicable Laws, Regulations,
etc. If any Legal Requirement shall make it unlawful for any Lender to fund
through the purchase of U.S. dollar deposits any LIBOR Portion, or otherwise to
give effect to its obligations as contemplated under this Section 3.1(B), or
shall impose on any Lender any costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the LIBOR Rate is
determined as provided herein or a category of extensions of credit or other
assets of such Lender which includes any LIBOR Portion, or shall impose on any
Lender any restrictions on the amount of such a category of liabilities or
assets which such Lender may hold, (i) Agent may by notice thereof to Borrower
terminate the LIBOR Option, with respect to the Revolving Credit Loans or
Acquisition Term Loans made or to be made by such Lender (ii) any LIBOR Portion
of such Lender's Revolving Credit Loans or Acquisition Term Loans subject
thereto shall immediately bear interest thereafter at the rate provided
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for in Section 3.1(A) payable on the dates provided for in Sections 3.5(B)(1),
and 3.5(B)(2). Borrower shall indemnify Agent and Lenders against any loss,
penalty or expense incurred by Lenders by reason of the liquidation or
redeployment of deposits or other funds acquired by Lender to fund or maintain
such LIBOR Portion. If conditions subsequently change so that the foregoing
conditions no longer exist, such Lender shall promptly notify Borrower and Agent
and upon receipt of such notice the LIBOR Option shall be reinstated.
(iv) Taxes. It is the understanding of Borrower
and Agent and Lenders that Lenders shall receive payments of amounts of
principal of and interest on the Revolving Credit Notes and the Acquisition Term
Notes, with respect to the LIBOR Portions from time to time subject to a LIBOR
Option free and clear of, and without deduction for, any Taxes. If (i) any
Lender shall be subject to any such Tax in respect of any such LIBOR Portion or
any part thereof or, (ii) Borrower shall be required to withhold or deduct any
such Tax from any such amount, the LIBOR Rate applicable to such LIBOR Portion
shall be adjusted by Agent on behalf of any such Lender to reflect all
additional costs incurred by such Lender in connection with the payments by any
such Lender or the withholding by Borrower of such Tax and Borrower shall
provide Agent and such Lender with a statement detailing the amount of any such
Tax actually paid by Borrower. Determination by Agent of the amount of such
costs shall, in the absence of manifest error, be conclusive, and at Borrower's
request, Agent shall demonstrate the basis of such determination. If after any
such adjustment, any part of any Tax paid by any such Lender is subsequently
recovered by any such Lender, such Lender shall reimburse Borrower to the extent
of the amount so recovered. A certificate of an officer of such Lender setting
forth the amount of such recovery and the basis therefor shall, in the absence
of manifest error, be conclusive.
* * *
(D) Unused Line Fee. Borrower shall pay to Agent for the ratable
benefit of Lenders an unused line fee equal to the sum of (x) one-half of one
percent (1/2%) per annum of the average monthly amount by which Eighty Million
Dollars ($80,000,000) less any amount by which Borrower has reduced the Maximum
Revolving Credit Loan in accordance with the terms hereof exceeds the sum of the
outstanding principal balance of the Revolving Credit Loans plus the aggregate
amount of all outstanding Letters of Credit and LC Guaranties plus (y) one-half
of one percent (1/2%) per annum of the average monthly amount by which Ten
Million Dollars ($10,000,000) exceeds the amount of undrawn Acquisition Term
Loan Commitments. The unused line fee shall be payable monthly in arrears on the
first day of each calendar month hereafter. Such unused line fee shall be
computed on the basis of a 360 day calendar year."
14
6. Term of Agreement. Section 3.3 of the Loan Agreement
is hereby deleted and the following is inserted in its stead:
"3.3. Term of Agreement. Subject to Lenders' right to cease making
Loans to Borrower at any time upon or after the occurrence and during the
continuance of any Default or Event of Default and subject to Borrower's right
to terminate this Agreement pursuant to Section 3.4, this Agreement shall be in
effect for a period through and including July 14, 2000 (the "Term")."
7. Section 3.5 of the Loan Agreement is hereby deleted and
the following is inserted in its stead:
"3.5. Payments. Except where evidenced by notes or other instruments
issued or made by Borrower to Lenders specifically containing payment provisions
which are in conflict with this Section 3.5 (in which event the conflicting
provisions of said notes or other instruments shall govern and control), that
portion of the Obligations consisting of:
(A) Principal, payable on account of Revolving Credit Loans
made by Lenders to Borrower pursuant to Section 2.1 of this Agreement, shall be
payable by Borrower to Agent, on behalf of Lenders, immediately upon the
earliest of (i) the receipt by Agent or any Lenders or Borrower of any proceeds
of any of the Collateral consisting of Accounts or Inventory, to the extent of
said proceeds, which proceeds shall be deposited in the Dominion Account and
distributed as set forth in Section 3.6 and other provisions of this Agreement,
(ii) the occurrence of an Event of Default in consequence of which Required
Lenders elect to accelerate the maturity and payment of the Obligations, and
(iii) termination of this Agreement pursuant to Section 3.4 hereof; provided,
however, that if the principal balance of Revolving Credit Loans outstanding at
any time shall exceed the Borrowing Base at such time, Borrower shall, on
demand, repay the Revolving Credit Loans in an amount sufficient to reduce the
aggregate unpaid principal amount of such Revolving Credit Loans by an amount
equal to such excess. Principal payable on account of the Acquisition Term Loans
shall be payable by Borrower to Agent, for the ratable benefit of Lenders in
accordance with the terms and conditions of the Acquisition Term Notes, as
applicable and the provisions of this Agreement;
(B) Interest accrued on the Prime Portion and the LIBOR
Portion shall be due on the earliest of (i) the first day of each month (for the
immediately preceding month), computed through the last calendar day of the
preceding month, (ii) the occurrence of an Event of Default in the consequence
of which Required Lenders elect to accelerate the maturity and payment of the
Obligations or (iii) termination of this Agreement pursuant to Section 3.4
hereof; provided, however, the Borrower hereby
15
irrevocably authorizes Lenders, in Agent's sole discretion, to advance to
Borrower and to charge to Borrower's Loan Account hereunder as a Revolving
Credit Loan, a sum sufficient each month to pay all interest accrued on the
Prime Portion and on the LIBOR Portion during the immediately preceding month.
(C) Costs, fees and expenses payable pursuant to this
Agreement shall be payable by Borrower, on demand, to Agent or to any other
Person designated by Agent in writing; and
(D) The balance of the Obligations requiring the payment of
money, if any, shall be payable by Borrower to Lenders and/or Agent as and when
provided in this Agreement, the Other Agreements or the Security Documents, or
if no such specific payment provision is so provided, then on demand."
8. Mandatory Prepayments. The following is inserted into
the Loan Agreement as Section 3.9:
"3.9 Proceeds of Sale, Loss, Destruction or Condemnation of Collateral.
Except as provided in Section 7.4 hereof, if Borrower sells any of the Equipment
or real Property, or if any of the Collateral is lost or destroyed or taken by
condemnation, Borrower shall pay to Agent for the ratable benefit of Lenders,
unless otherwise agreed by Required Lenders, as and when received by Borrower
and as a mandatory prepayment of (x) the Acquisition Term Loans or (y) if the
Acquisition Term Loans are paid in full, the outstanding Revolving Credit Loan a
sum equal to the proceeds (including insurance payments) net of any reasonable
costs of sale or disposition and provisions for any income tax expense incurred
as a result of such sale or disposition received by Borrower from such sale,
loss, destruction or condemnation. Any such prepayments shall be applied ratably
among Lenders to principal installments due under the Acquisition Term Notes, as
applicable, in inverse order of maturity. Such prepayments shall be governed by
the provisions of Section 7.4. The foregoing notwithstanding, if the insurance
or condemnation cash proceeds from any such loss or condemnation of Collateral
are Two Hundred Fifty Thousand Dollars ($250,000) or less and if there is no
existing and continuing Event of Default, Agent shall apply such proceeds to
outstanding Revolving Credit Loans and, absent any subsequent Event of Default,
shall make additional Revolving Credit Loans in the amount of such insurance or
condemnation proceeds to Borrower in order to permit Borrower to replace or
repair such lost, damaged, destroyed or condemned Equipment, Property or other
Collateral."
9. Collateral. Section 4.1 of the Loan Agreement is
hereby deleted and the following is inserted in its stead:
"4.1. Security Interest in Collateral. To secure the
prompt payment and performance to Agent and Lenders of the
16
Obligations, Borrower hereby grants to Agent, for its benefit and the ratable
benefit of Lenders, a continuing security interest in and Lien upon the
following Property of Borrower, whether now owned or existing or hereafter
created, acquired or arising and wheresoever located:
(A) Accounts;
(B) Inventory;
(C) Equipment;
(D) General Intangibles;
(E) All monies and other Property of any kind, now or at any
time or times hereafter, in the possession or under the control of Agent or any
Lender or a bailee of Agent or any Lender;
(F) All accessions to, substitutions for and all replacements,
products and cash and non-cash proceeds of (A), (B), (C), (D) and (E) above,
including, without limitation, proceeds of and unearned premiums with respect to
insurance policies insuring any of the Collateral;
(G) All books and records (including, without limitation,
customer lists, credit files, computer programs, print-outs, and other computer
materials and records) of Borrower pertaining to any of (A), (B), (C), (D), (E)
or (F) above.
Notwithstanding the foregoing, Collateral shall not include (1) any
licenses or permits the encumbrance of which would violate any law, statute or
regulation or (2) any contract rights (including, without limitation, any
contracts or leases), the encumbrance of which would violate the terms of the
agreements establishing such rights; provided that Borrower shall use reasonable
good faith efforts to obtain any necessary consent to enable any such contract
right to be included within the Collateral.
10. Dispositions of Equipment. The following is inserted
into the Loan Agreement as Section 7.4:
"7.4 Dispositions of Equipment. Borrower will not sell, lease or
otherwise dispose of or transfer any of the Equipment or any part thereof
without the prior written consent of Agent; provided, however, that the
foregoing restriction shall not apply, for so long as no Default or Event of
Default exists, to (i) dispositions of Borrower's Equipment made after July 24,
1997 which, in the aggregate in respect to all such dispositions made after July
24, 1997 by Borrower during any consecutive twelve-month period, has a fair
market value or book value,
17
whichever is less, of Two Hundred Fifty Thousand Dollars ($250,000) or less,
provided that all proceeds thereof are remitted to Agent for application to the
Loans pursuant to Section 3.9 or are expended pursuant to clause (ii) of this
sentence, (iii) replacements of Equipment that is substantially worn, damaged,
redundant, replaceable with better Equipment or obsolete with Equipment of like
kind, function and value provided that the replacement Equipment shall be
acquired prior to or concurrently or within 90 days of the disposition of the
worn, damaged, redundant, replaceable with better Equipment, or obsolete
Equipment, the replacement Equipment shall be free and clear of Liens other than
Permitted Liens that are not Purchase Money Liens (except to the extent that the
replaced equipment was subject to a Purchase Money Lien), and Borrower shall
have given Agent at least 5 days prior written notice of such disposition; or
(iii) dispositions of Borrower's Equipment made prior to July 25, 1997.
11. Negative Covenants. Section 9.2 (A) and 9.2(L) of the
Loan Agreement are hereby deleted and the following are inserted
in their stead:
"9.2(A) Mergers; Consolidations; Acquisitions. Merge or consolidate, or
permit any Subsidiary of Borrower to merge or consolidate, with any Person; nor
acquire, nor permit any of its Subsidiaries to acquire, all or any substantially
all of the Properties of any Person, except in respect to (i) a consolidation or
merger involving only Borrower and one or more wholly-owned Subsidiaries or
involving only two or more wholly-owned Subsidiaries of Borrower and (ii) a
Permitted Acquisition."
* * *
(L) Capital Expenditures. Make Capital Expenditures which, in the
aggregate, as to Borrower and its Subsidiaries, exceed, (i) during any fiscal
year of Borrower (other than fiscal year 1997) Five Million Dollars ($5,000,000)
or (ii) during fiscal year 1997 of Borrower Six Million Dollars ($6,000,000)
(exclusive of the purchase price payable pursuant to the Wahlfeld Acquisition
Documents)."
* * *
12. Financial Covenants. Section 9.3 of the Loan Agreement
is hereby deleted and the following is inserted in its stead:
"9.3. Specific Financial Covenants. During the Term of
this Agreement, and thereafter for so long as there are any
Obligations to Agent or any Lender, Borrower covenants that,
unless otherwise consented to by Required Lenders in writing, it
shall:
18
(A) Minimum Net Worth. Maintain at the end of each fiscal quarter
within the term hereof a Tangible Net Worth of not less than the amount shown
below for the fiscal quarter corresponding thereto:
Fiscal Quarter Ending Amount
March 31, 1997 $43,500,000
June 30, 1997 $44,100,000
September 30, 1997 $44,100,000
December 31, 1997 and the last day
of each fiscal quarter thereafter $44,500,000
(B) Total Liabilities to Tangible Net Worth Ratio. Have at the end of
each month within the Term hereof, a ratio of Indebtedness (computed in
accordance with GAAP) to Tangible Net Worth equal to or less than the ratio set
forth opposite such month in the following schedule:
Month Ending Ratio
January 31, 1997 and February 28, 19971.80 to 1
March 31, 1997, April 30, 1997 and May
31, 1997 1.97 to 1
June 30, 1997, July 31, 1997 and August
31, 1997 2.10 to 1
September 30, 1997, October 31, 1997
and November 30, 1997 2.00 to 1
December 31, 1997 and the last day
of each month thereafter 1.75 to 1
(C) Interest Coverage Ratio. Have at the end of each fiscal quarter of
Borrower within the Term hereof, commencing with the fiscal quarter ending March
31, 1997, an Interest Coverage Ratio for the twelve consecutive months then
ended equal to or greater than the Interest Coverage Ratio set forth opposite
the last day of each such fiscal quarter in the following schedule:
Fiscal Quarter Ending Interest Coverage Ratio
March 31, 1997 2.75 to 1
19
June 30, 1997 1.50 to 1
September 30, 1997 1.50 to 1
December 31, 1997 1.75 to 1
March 31, 1998 1.75 to 1
June 30, 1998 2.00 to 1
September 30, 1998 2.25 to 1
December 31, 1998 2.25 to 1
March 31, 1999 2.50 to 1
June 30, 1999 2.50 to 1
September 30, 1999 and the last day
of each fiscal quarter thereafter 2.75 to 1
(D) Fixed Charge Coverage Ratio. Have the end of each fiscal quarter of
Borrower within the Term hereof, commencing with the fiscal quarter ending
December 31, 1997, a Fixed Charge Coverage Ratio for the twelve consecutive
months then ended equal to or greater than the ratio set forth opposite the last
day of each such fiscal quarter in the following schedule:
Fiscal Quarter Ending Fixed Charge Coverage Ratio
December 31, 1997 .50 to 1
March 31, 1998 1.00 to 1
June 30, 1998 1.25 to 1
September 30, 1998 1.25 to 1
December 31, 1998 and the last day
of each fiscal quarter thereafter 1.50 to 1
13. Intentionally Omitted.
14. Conditions Precedent. This Tenth Amendment shall
become effective upon the satisfaction of the following
conditions precedent:
14.1 Agent shall have received each of the following
documents, in form and substance satisfactory to it:
20
(A) The Tenth Amendment executed by Borrower, each Lender
and Agent;
(B) A Certificate of the Secretary of Borrower, together with true and
correct copies of the Certificate of Incorporation and Bylaws of Borrower, and
all amendments thereto, true and correct copies of the resolutions of the Board
of Directors of Borrower authorizing or ratifying the execution, delivery and
performance of this Tenth Amendment, the Acquisition Term Notes the Revolving
Notes, the other Security Documents and any Other Agreements to be executed in
connection with this Tenth Amendment, and the names of the officer of officers
of each Borrower authorized to sign this Tenth Amendment, the Acquisition Term
Notes, the Revolving Notes, the other Security Documents and Other Agreements to
be executed in connection with this Tenth Amendment, together with a sample of
the true signature of each such officer;
(C) The Acquisition Term Notes evidencing the Five Million Dollars
($5,000,000) Acquisition Term Loan, the proceeds of which are to be used to
fund, in part, the purchase price payable pursuant to the Wahlfeld Acquisition
Documents;
(D) Amended and Restated Revolving Notes (the "Revolving
Notes"). The outstanding Revolving Note previously delivered to
Lenders are hereinafter referred to as the "Original Revolving
Note;"
(E) First Mortgage in respect to the Property referred in
clause (iii) of the definition of Mortgages (the "Oshkosh
Property");
(F) Fully paid mortgagee title insurance policies (or binding
commitments to issue title insurance policies, marked to Agent's satisfaction to
evidence the form of such policies to be delivered after the Closing Date), in
standard ALTA form, issued by a title insurance company satisfactory to Lender,
each in an amount equal to not less than the fair market value of the Oshkosh
Property, insuring that the Mortgages on such real Property shall create a valid
Lien on all such real Property described therein with no exception which Agent
shall not have approved in writing;
(G) An ALTA Survey with respect to the Oshkosh Property;
(H) UCC-1 Financing Statements for filing in the central filing office
of the State of Wisconsin and such other states as Agent reasonably deems
appropriate;
(I) The favorable, written opinion, of Winthrop, Stimson,
Xxxxxx & Xxxxxxx, a counsel to Borrower, as to the transactions
21
contemplated by this Tenth Amendment and any of the other Loan
Documents to be executed in connection with the Tenth Amendment;
(J) Mortgage releases and UCC-3 termination statements from Xxxxxx
Trust and Savings Bank in respect to the Oshkosh Property and the Equipment
located thereon;
(K) The Wahlfeld Acquisition Documents; and
(L) Such other documents, instruments and agreements as Agent shall
reasonably request in connection with the foregoing matters.
14.2. Upon the satisfaction of each of the above-listed
conditions precedent, Lenders shall return the Original Revolving
Notes marked "Amended and Superseded."
14.3 The foregoing notwithstanding Agent may elect to waive fulfillment
of the condition precedent listed in Section 14.1(B) and permit this Tenth
Amendment to become effective and permit Borrower to close the acquisition
contemplated by the Wahlfeld Acquisition Documents. In the event that Agent so
elects to waive such condition precedent, then; (i) Borrower agrees to deliver
the Certificate of Secretary referenced to therein to Agent on or prior to
August 1, 1997 and failure to make such delivery shall constitute an Event of
Default; (ii) the Maximum Revolving Credit Loan shall be limited to Sixty-Five
Million Dollars ($65,000,000) until Borrower makes such delivery; (iii) Lenders
shall not be required to make any Acquisition Term Loans until such delivery is
made; (iv) the Lender's Revolving Credit Loan Commitments and Revolving Credit
Percentages in effect prior to the execution of this Tenth Amendment shall
remain in effect until such Certificate of Secretary is delivered to Borrower;
and (v) Borrower may fund the purchase price payable pursuant to the Wahlfeld
Acquisition Documents from the proceeds of Revolving Credit Loans. Upon delivery
of such Certificate of Secretary, Borrower may drawn down the initial $5,000,000
Acquisition Term Loan provided that the proceeds thereof shall be used to the
extent required, to pay down the Revolving Credit Loan in an amount equal to the
purchase price payable under the Wahlfeld Acquisition Documents.
15. Amendment Fee. In order to induce Agent and Lenders to
enter into this Tenth Amendment, Borrower agrees to pay Agent,
for the ratable benefit of Lenders, an amendment fee in the
amount of One Hundred Fifty Thousand Dollars ($150,000).
16. Continuing Effect. Except as otherwise specifically
set out herein, the provisions of the Loan Agreement shall remain
in full force and effect.
22
IN WITNESS WHEREOF, this Tenth Amendment has been duly executed as of
the day and year specified at the beginning hereof.
XXXXXX PRODUCTS LTD. ("Borrower")
By: ____________________________________
Name:______________________________
Title:_____________________________
FLEET CAPITAL CORPORATION
("Agent" and "Lender")
By:_____________________________________
Name:______________________________
Title:_____________________________
Revolving Loan Commitment: $48,888,889.22
Acquisition Term Loan Commitment: $6,111,110.78
XXXXXX TRUST AND SAVINGS BANK ("Lender")
By:_____________________________________
Name:______________________________
Title:_____________________________
Revolving Loan Commitment: $13,333,333.00
Acquisition Term Loan Commitment: $1,666,667.00
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, ("Lender"), Successor by
Merger to Bank of American Illinois
By:_____________________________________
Name:______________________________
Title:_____________________________
Revolving Loan Commitment: $17,777,777.78
Acquisition Term Loan Commitment: $2,222,222.22
23
EXHIBIT A-1
SECURED PROMISSORY NOTE
(Acquisition Term Note)
$___________ ___________, 19__
-------------,-----
FOR VALUE RECEIVED, the undersigned hereinafter "Borrower"), hereby
promises to pay to the order of, a ___________________ corporation (hereinafter
"Lender"), or its registered assigns at the office of Fleet Capital Corporation,
as agent for such Lender, or at such other place in the United States of America
as the holder of this Note may designate from time to time in writing, in lawful
money of the United States, in immediately available funds, at the time of
payment, the principal sum of___________________________ Dollars ($_______),
together with interest from and after the date hereof on the unpaid principal
balance outstanding from time to time.
This Secured Promissory Note (the "Note") is one of the Acquisition
Term Notes referred to in, and is issued pursuant to, that certain Loan and
Security Agreement dated as of July 14, 1994 by and among Borrower, the lender
signatories thereto (including Lender) and Fleet Capital Corporation ("FCC") as
Agent for said lenders (FCC in such capacity "Agent") (hereinafter, as amended
from time to time, the "Loan Agreement"), and is entitled to all of the benefits
and security of the Loan Agreement. All of the terms, covenants and conditions
of the Loan Agreement and the Security Documents, as amended from time to time,
are hereby made a part of this Note and are deemed incorporated herein in full.
All capitalized terms used herein, unless otherwise specifically defined in this
Note, shall have the meanings ascribed to them in the Loan Agreement.
For so long as no Event of Default shall have occurred and be
continuing the principal amount and accrued interest of this Note shall be due
and payable on the dates and in the manner hereinafter set forth:
(a) Interest on the unpaid principal balance outstanding from time to
time shall be paid at such interest rates and at such times as are
specified in the Loan Agreement;
(b) Principal shall be due and payable monthly commencing on
__________, 19__, (September 1, 1997 in respect to the first
Acquisition Term Loan), and continuing on the first day of each month
thereafter to and including __________, 200__ in installments of (x)
_____________________ Dollars ($_______) on the first day of each month
for the period from _______________, 199__ to and including _________,
200 and (y) _____________________ Dollars ($________) on the first day
of each month for the period from
___________, 200__ to and including _____________, 200__;
and
(c) The entire remaining principal amount then outstanding, together
with any and all other amounts due hereunder, shall be due and payable
on the Commitment Termination Date.
Notwithstanding the foregoing, the entire unpaid principal balance and accrued
interest on this Note shall be due and payable immediately upon any termination
of the Loan Agreement pursuant to Section 4 thereof.
This Note shall be subject to mandatory prepayment in accordance with
the provisions of Section 3.9 of the Loan Agreement. Borrower may also prepay
this Note at any time without penalty or premium except as otherwise provided in
Section 3.1(B) of the Loan Agreement.
Upon the occurrence, and during the continuation, of an Event of
Default, this Note shall or may, as provided in the Loan Agreement, become or be
declared immediately due and payable.
The right to receive principal of, and stated interest on, this Note
may only be transferred in accordance with the provisions of the Loan Agreement.
Demand, presentment, protest and notice of nonpayment and protest are
hereby waived by Borrower.
This Note shall be governed by, and construed and enforced in
accordance with, the laws of the State of Illinois.
XXXXXX PRODUCTS LTD.,
a Delaware corporation
By: _______________________________
Name:_________________________
Title:________________________
2
