SECOND AMENDED AND RESTATED TERM LOAN AGREEMENT
Dated as of October 27, 1997
XXXXX XXXXXX EUROPE, INC. (the "Borrowee'), and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "Rabobank Nederland", New York Branch (the
"Bank") agree as follows:
ARTICLE I
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 1.01. The Advances. Pursuant to that certain Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of November 15, 1993
(the "Existing Agreemenf The Bank has made an advance (the "Existing Advance")
to the Borrower in the principal amount of the U.S. Dollar equivalent of Ten
Million Netherlands Guilders. The Borrower has requested and the Bank has agreed
to re@ce the Existing Advance with a new advance (the "Advance") in the
principal amount of Six Million Five Hundred Thousand Netherlands Guilders
(NLG6,500,000) on the terms and conditions hereinafter set forth for the period
from the date hereof to and including January 31, 2002 (the "Termination Date").
SECTION 1.02. Making the Advance. (a) The Advance shall be deemed to have
been made on the date hereof upon fulfilhnent of the applicable conditions set
forth in Article II (the "Effective Date").
(b) The Bank will apply the proceeds of the Advance to the repayment of
the Existing Advance and all other amounts owing to the Bank under the Existing
Agreement (collectively, the Existing Obligations). The amount of the Advance,
if any, in excess of the Existing Obligations shall be made available to the
Borrower.
(c) For the purposes hereof, the amount of the Existing Obligations shall
be expressed in an equivalent amount of Netherlands Guilders based on the
exchange rate in effect as of 10:00 a.m., New York City time on the Effective
Date.
SECTION 1.03. No part of the proceeds of the Advance will be used by the
Borrower or others to purchase or carry any margin stock in violation of
Regulations G, U, T or X of the Board of Governors of the Federal Reserve
System.
SECTION 1.04 Repayment and Interest. (a) The Borrower shall repay the
aggregate unpaid principal amount of the Advance in consecutive semi-annual
installments on January 31 and July 31 of each calendar year, each in the amount
of Three Hundred Thousand Netherlands Guilders
(NLG300,000) with a payment on the Termination Date equal to the principal
balance then remaining due and unpaid, and otherwise in accordance with the
terms of a promissory note of the Borrower, in substantially the form of Exhibit
A hereto (the "Note"), evidencing the indebtedness resulting from the Advance
and delivered to the Bank pursuant to Article II.
(b) The Borrower shall pay interest on the unpaid principal amount of the
Advance from the date of such Advance until such principal is paid in full at
the applicable rate set forth below.
(c) The Borrower shall pay interest on the unpaid principal amount of the
Advance from the Effective Date of the Advance until such principal amount is
due, payable on each Payment Date (as defined below) at an interest rate per
annum equal at all times to the applicable Margin per armum above the Guilder
COF Rate.
The term "Guilder COF Rate" means that rate of interest per annum quoted
by the Bank on the date the Advance is made as the Guilder COF Rate.
The term "Margiif' means the percentage specified below based upon the
Leverage amount specified below:
Leverage Margin
Equal to or greater dm 3.00: 1.00 1.00%
Equal to or greater than 2.50: 1.00 0.75%
but less than 3.00: 1.00
Equal to or greater dm 2.00: 1.00 0.625%
but less dm 2.50: 1.00
Equal to or greater fl= 1. 50: 1.00 0.50%
but less than 2.00: 1.00
Less fl= 1.50: 1.00 0.375%
"Leverage" means the ratio of Consolidated Funded Debt (as defmed in the
Credit Agreement referred to below) to Consolidated EBITDA (as defmed in the
Credit Agreement). The above Margins will be set or reset with respect to the
then outstanding principal amount of the Advance on each day which is ten
Business Days following the receipt by the Bank of the financial statements
referenced in Section 7.8(a) and Section 7.8(b) of that certain Credit Agreement
dated as of January 31, 1997 among Xxxxx Xxxxxx, Inc., The Chase Manhattan Bank,
N.A., Fleet Bank, NA, European American Bank and the Bank (as it may be amended
or modified from time to time, the "Credit Agreement"); provided, however, that
if any financial statement is not received by the Bank within the time period
relating to such financial statement as provided in said Section 7.8(a) or
Section 7.8(b) of the Credit Agreement, as the case may be,
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the above Margins will be reset, until the day which is ten Banking Days
following the receipt by the Bank of any such fmancial statements, based on a
Leverage ratio of equal to or greater than 3.00: 1.00; and further provided,
that the Bank shall not in any way be deemed to have waived any Event of Default
or any of its remedies hereunder in connection with the provisions of the
foregoing proviso.
The term "Payment Date" shall mean each January 3 1, April 3 0, July 31
and October 3 1, beginning with January 31, 1998.
(e) On any overdue principal amount of the Advance the Borrower shall pay
interest on demand at the Default Rate (as defined below) from the date such
amount becomes due to the date such amount is paid in full. The "Default Rate"
is a fluctuating mte equal to the sum of (i) the Guilder COF Rate plus (ii) the
applicable Margin plus (iii) 2% per annum.
SECTION 1.05. Prepayments. The Boffower may, upon at least three Business
Day's (as hereinafter defined) notice to the Bank, prepay the outstanding amount
of the Advance in whole or in part with accrued interest to the date of such
prepayment on the amount prepaid, provided, however, that any prepayment of the
Advance shall be accompanied with any amount due under Section 6.05(b); and
provided, further, that each partial prepayment shall be in a principal amount
of at least NLG400,000 and shall be applied to the principal installments of the
Note in the inverse order of their maturities.
SECTION 1.06. Increased Costs. (a) If either (i) the introduction of or
any change (including, without limitation, any change by way of imposition or
increase of reserve requirements) in or in the interpretation of any law or
regulation or (ii) the compliance by the Bank with any guideline or request from
any central bank or other governmental authority (whether or not having the
force of law), in each case after the date hereof, shall result in any increase
in the cost to the Bank of making, fimding or maintaining the Advance, then the
Borrower shall from time to time, upon demand by the Bank, pay to the Bank
additional amounts sufficient to indemnify the Bank against such increased cost.
A certificate as to the amount of such increased cost, submitted to the Borrower
by the Bank, shall, in the absence of manifest error, be conclusive and binding
for all purposes.
(b) If either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) compliance by the Bank with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), in each case after the date hereof,
affects or would affect the amount of capital required or expected to be
maintained by the Bank and the Bank determines that the amount of such capital
is increased by or based upon the existence of the Bar&s commitment to lend
hereunder and other commitments of this type, then, upon demand by the Bank, the
Borrower shall immediately pay to the Bank, from time to time as specified by
the Bank, additional amounts sufficient to compensate the Bank in the light of
such circumstances, to the extent that the Bank reasonably determines such
increase in capital to be allocable to the existence of the Bank's commitment to
lend hereunder. A certificate as to such amounts, submitted to the Borrower by
the Bank, shall, in the absence of manifest error, be conclusive and binding for
all purposes.
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(b) Notwithstanding anything in this Agreement to the contrary,
Borrower shall only be required to compensate the Bank in respect of any such
additional costs, or other amounts with respect to those additional costs or
amounts received or receivable hereunder as to which the Bank has given Borrower
written notice within ninety (90) days after the Bank has received actual notice
of the occurrence of the relevant circwnstance. The determination by the Bank of
the amount of such costs or amounts received or receivable hereunder shall be,
in the absence of demonstrable error, conclusive and, at Boffower's request, the
Bank shall demonstrate the basis for such determination. Notwithstanding
anything herein to the contrary, to the extent that the Bank does not charge all
of its customers who are similarly situated to the Borrower in respect of any
additional costs or reductions in amounts received or receivable hereunder as
described in this Section 1.06, the Bank shall not charge Borrower for any such
additional costs or reductions in amounts received or receivable hereunder.
SECTION 1.07. Payments and Computations. The Borrower shall make each
payment hereunder and under the Note not later than 1:00 p.m. (New York City
time) on the day when due in lawful money of The Netherlands to the Bank at its
address referred to in Section 6.02 in same day funds. The Borrower hereby
authorizes the Bank, if and to the extent payment of any amount is not made when
due under any Loan Document, to charge from time to time against any account of
the Borrower with the Bank any amount so due. All computations of interest
hereunder and under the Note hereunder shall be made by the Bank on the basis of
a year of 360 days, for the actual number of days (including the first day but
excluding the last day) elapsed.
SECTION 1.08. Payment on Non-Business Days. Whenever any payment to be
made hereunder or under the Note shall be stated to be due, on a Saturday,
Sunday or a public or bank holiday in New York City (any other day being a
"Business Day"), such payment may be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation of
payment of interest or commitment fee, as the case may be.
ARTICLE II
CONDITIONS PRECEDENT
SECTION 2.01. Condition Precedent to the Advance. The obligation of the
Bank to make the Advance is subject to the condition precedent that the Bank
shall have received at least two Business Days before the day of such Advance
the following, each dated the day of such Advance, in form and substance
satisfactory to the Bank:
(a) The Note.
(b) A confirmation of the guaranty made in favor of the Bank (the
"Guaranty" and, together with the Note and any other document or agreement
executed or delivered in connection therewith, the "Loan Documents") duly
executed by Xxxxx Xxxxxx, Inc. ("HSI") and each Guarantor (as defined in
the Credit Agreement) (the "European Guarantors"; together with
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HSI, the "Guarantors"; together with the Borrower, collectively the
"Loan Parties" and individually a "Loan Party"), in the form of Exhibit
B hereto.
(c) Certified copies of the resolutions of the Board of Directors of
each Loan Party approving each Loan Document to which it is a party, and
of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to such Loan Document.
(d) A certificate of the Secretary or an Assistant Secretary of each
Loan Party certifying the names and true signatures of the officers of
such Loan Party authorized to sign each Loan Document to which it is a
party and the other documents to be delivered by it hereunder.
(e) A certificate of a duly authorized officer of the Borrower, dated
the day of the Advance, stating that the representations and warranties
in Article III are true and correct on such date as though made on and
as of such date and that no event has occurred and is continuing which
constitutes an Event of Default;
(f) An opinion of counsel for the Loan Parties, in form and substance
satisfactory to the Bank request;
(g) The Loan Parties shall have obtained all consents, permits and approvals
required in connection with the execution, delivery and performance by
the Loan Parties of their obligations hereunder and such consents,
permits and approvals shall continue in full force and effect;
(h) The Bank shall have received an arrangement fee in the amount of
$13,000; and
(i) All legal matters in connection with this fmancing shall be reasonably
satisfactory to the Bank and its counsel.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Boffower; Affirmative
Covenants. The representations and warranties set forth in Article 6 of the
Credit Agreement and the covenants set forth in Article 7 of the Credit
Agreement are hereby incorporated herein by reference, mutatis mutandis, as if
ftdly set forth herein and the Borrower hereby confn-ms and makes such
representations and warranties; provided, that for purposes of inclusion herein,
the following terms set forth in said Articles 6 and 7 shall have the following
meanings: "Borrower" shall mean the Borrower as defmed herein; "Guarantors"
shall mean the Europe Guarantors; and "Facility Documents" shall mean the Loan
Documents. Capitalized terms (other than those referred to above) and schedule
references defined and set forth in Articles 6 and 7 shall have the meanings and
content set forth in the Credit Agreement.
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ARTICLE IV
COVENANTS OF THE BORROWER
SECTION 4.01. Negative Covenants. So long as any amount payable hereunder
or under the Note shall remain unpaid or the Bank shall have any Commitment
hereunder, the Borrower will not, without the written consent of the Bank:
(a) Liens, Etc. Create or suffer to exist, any lien, security interest or
other charge or encumbrance, or any other type of preferential arrangement, upon
or with respect to any of its properties, whether now owned or hereafter
acquired, or assign any right to receive income, in each case to secure any Debt
(as defmed in the Credit Agreement), other than Permitted Liens (as defined in
the Credit Agreement, without giving effect to any amendment, supplement, waiver
or other modification thereof which was not consented to by the Bank).
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.01. Events of Default. If any of the following events ("Events
of Defaulf') shall occur and be continuing:
(a) The Borrower shall fail to pay any amount of principal under the Note
when due or fail to pay interest on the Note within five Banking Days of the
date such interest is due and payable or any other amount owing hereunder or
under any other Loan Documents as and when due and payable;
(b) Any representation or warranty made or deemed made by any Loan Party
in this Agreement or in any other Loan Document or which is contained in any
certificate, document, opinion or financial or other statement fumished at any
time under or in connection with any Loan Document shall prove to have been
incorrect, if made or deemed made on or as of the date hereof, in any respect
or, if made or deemed made on or as of any date subsequent to the date hereof,
in any material respect;
(c) Any Loan Party shall: (i) fail to perform or observe any other term,
covenant or agreement contained herein and such failure shall continue for IO
consecutive days or (ii) fail to perform or observe any term, covenant or
agreement contained in the Credit Agreement and incorporated by reference herein
pursuant to Article 3 hereof and such failure shall continue beyond the
applicable grace period, if any, set forth in the Credit Agreement;
(d) The Borrower, any Europe Guarantor or any Acquired Entity (as defmed
in the Credit Agreement) shall: (i) fail to pay any Debt or Debts for borrowed
money (other than the payment obligations described in 5.01 (a) above) in the
aggregate amount of $1,200,000 or more, as the case may be, or any interest or
premium thereof, when due (whether by
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scheduled maturity, required prepayment, acceleration, demand or otherwise)
after giving effect to any applicable grace periods; or (ii) fail to perform or
observe any term, covenant or condition on its part to be performed or observed,
including the obligation to make payment, under any agreement or instrument
relating to any other Debt or Debts (other than the payment obligations
described in 5.0 1 (a) above or the Debt or Debts described in 5.01 (d)(i)
above) in the aggregate amount of $1,200,000, when required to be performed or
observed, if the effect of such failure to perform or observe is to accelerate
or permit the acceleration of the maturity of such Debt, after giving effect to
any applicable grace period;
(e) The Borrower, any Europe Guarantor or any Acquired Entity shall
fail to pay any Debt due to the Bank under any agreement or otherwise (other
than payment obligations described in Section 5.01 (a) above) in aggregate
amount (respecting all such persons and all such Debt) of $ 1 00,000 or more,
after giving effect to applicable grace periods;
(f) The Borrower, any Europe Guarantor or any Acquired Entity (i) shall
generally not or be unable to, or shall admit in writing its or their inability
to, pay its or their debts as such debts become due; or (ii) shall make an
assignment for the benefit of creditors, petition or apply to any tribunal for
the appointment of a custodian, receiver or trustee for it or a substantial part
of its assets; or (iii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (iv)
shall have had any such petition or application filed or any such proceeding
shall have been commenced, against it or them, in which an adjudication or
appointment is made or order for relief is entered which petition, application
or proceeding remains unstayed and in effect for a period of 30 days or more; or
(v) by any act or omission shall indicate its consent to, approval of or
acquiescence in any such petition, application or proceeding or order for relief
or the appointment of a custodian, receiver or trustee for all or any
substantial part of its property; or (vi) shall suffer any such custodianship,
receivership or trusteeship (as referenced in (v) above, exclusive of any of the
matters referenced in any of (i) -(iv) hereof) to continue undischarged for a
period of 45 days or more; or (vii) the Borrower or any Europe Guarantor shall
cease to be Solvent (as defmed in the Credit Agreement);
(g) The Guaranty shall at any time after their execution and delivery
and for any reason cease: (a) after the Lien Date (as defmed in the Europe
Security Agreements) and the filing of the Financing Statements in accordance
with the Guaranty and the Europe Security Agreements, to create a valid first
priority security interest in and to the property purported to be subject to
such Europe Security Agreements; or (b) to be in full force and effect or shall
be declared null and void, or the validity of enforceability thereof shall be
contested by any Loan Party (or any assignee of transferee of any Loan Party),
or any assignee or transferee of any Loan Party shall deny that it has any
further liability or obligation under any Europe Security Agreement to which it
is a party, or any Loan Party (or any assignee or transferee of any such Loan
Party) shall fail to perform any of its obligations under the Europe Security
Agreement to which it is a party.
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then, and in any such event, the Bank may, by notice to the Borrower, declare
the Note, all interest thereon and all other amounts payable under this
Agreement and any other Loan Document to be forthwith due and payable, whereupon
the Note, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the case of an Event of Default referred to in clause (f) of
this Section 5. 0 1, the Note, all such interest and all such amounts shall
automatically become due and payable, without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived by the
Borrower.
ARTICLE VI
NESCELLANEOUS
SECTION 6.01. Amendments, Etc. No amendment or waiver of any provision of
any Loan Document, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Bank and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
SECTION 6.02. Notices, Etc. All notices and other communications provided
for under any Loan Document shall be in writing (including telegraphic, telex or
cable communication) and mailed, telegraphed, telecopied, telexed, cabled or
delivered, if to the Borrower, at its address at x/x Xxxxx Xxxxxx, Xxx., 00 0
Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx II 747, Attention: Chief Financial Officer, with
a copy to the General Counsel; and if to the Bank, at its address at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Services Department; or,
as to each party, at such other address as shall be designated by such party in
a written notice to the other party. All such notices and communications shall,
when mailed, telegraphed, telecopied, telexed or cabled, be effective when
deposited in the mails, delivered to the telegraph company, confirmed by
telecopy or telex answerback or delivered to the cable company, respectively,
except that notices to the Bank pursuant to the provisions of Article I shall
not be effective until received by the Bank. Notwithstanding the other
provisions of this Section 6.02, the Bank may accept oral borrowing notice
pursuant to Section 1.02 hereof, provided that the Bank shall incur no liability
to the Borrower in acting on any such communication that the Bank believes in
good faith to have been given by a person authorized to give such notice on
behalf of the Borrower. Any conf=ation sent by the Bank to the Borrower of any
borrowing under this Agreement shall, in the absence of manifest error, be
conclusive and binding for all purposes.
SECTION 6.03. No Waiver; Remedies. No failure on the part of the Bank to
exercise, and no delay in exercising, any right under any Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right under any Loan Document preclude any other or further exercise thereof or
the exercise of any other right. The remedies provided in the Loan Documents are
cumulative and not exclusive of any remedies provided by law.
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SECTION 6.04. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistently applied, except as otherwise stated herein.
SECTION 6.05. Costs, Expenses and Taxes. (a) The Borrower agrees to pay on
demand all costs and expenses in connection with the preparation, execution,
delivery, filing, recording and administration of the Loan Documents and the
other documents to be delivered under the Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Bank (who may be in-house counsel for the Bank), and local counsel who may be
retained by said counsel, with respect thereto and with respect to advising the
Bank as to its rights and responsibilities under the Loan Documents, and all
costs and expenses (including reasonable counsel fees and expenses) in
connection with the enforcement of the Loan Documents and the other documents to
be delivered under the Loan Documents. In addition, the Borrower shall pay any
and all stamp and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of the Loan
Documents and the other documents to be delivered under the Loan Documents, and
agrees to save the Bank harmless from and against any and all liabilities with
respect to or resulting from any delay in paying or omission to pay such taxes
and fees. The Borrower shall indemnify the Bank, its officers, directors,
employees, representatives and agents from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses incurred by
any of them arising out of or by reason of any investigation, litigation or
other proceeding related to the Borrowees entering into and performance of this
Agreement, the Note or any other Loan Document, or otherwise arising under or in
connection with this Agreement, the Note or any other Loan Document and the
transactions contemplated hereby or thereby, including without limitation, the
reasonable fees and out of pocket expenses of counsel (who may be in-house
counsel for the Bank) incurred in connection with any such investigation,
litigation or other proceeding. All obligations of the Borrower under this
Section 6.05(a) shall survive any termination of this Agreement.
(b) If (i) due to payments made by the Boffower pursuant to Section 1.05 or
due to acceleration of the maturity of the Advance pursuant to Section 5.01 or
due to any other reason, the Bank receives payments of principal of the Advance
other dm on the Termination Date, (ii) the Borrower fails to borrow the Advance
after the Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement or (iii) the Borrower fails to make any prepayment
after the Borrower has given a notice thereof in accordance with the provisions
of this Agreement, the Borrower shall pay to the Bank on demand any amounts
required to compensate the Bank for any additional losses, costs or expenses
actually incurred by the Bank as a result of such payment, including, without
limitation, (i) any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other fimds acquired by the Bank to ftmd or maintain such Advance and (ii)
amounts equal to the breakage costs associated with any interest rate contracts
entered into by the Bank or any of its affiliates in connection with fixing the
Guilder COF Rate for the term of the Advance (or any shorter period) actually
incurred by the Bank. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
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SECTION 6.06. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default the Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
fmal) at any time held and other indebtedness at any time owing by the Bank to
or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under any Loan Document,
irrespective of whether or not the Bank shall have made any demand under such
Loan Document and although such deposits, indebtedness or obligations may be
umnatured or contingent. The Bank agrees promptly to notify the Borrower after
any such set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Bank under this Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Bank may have.
SECTION 6.07. Severability of Provisions. Any provision of this Agreement
or of any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or thereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 6.08. Consent to Jurisdiction. (a) The Borrower hereby irrevocably
submits to the jurisdiction of any New York State or Federal court sitting in
New York City in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which the Borrower is a party,
and the Borrower hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such New York State court or
in such Federal court. The Borrower hereby irrevocably waives, to the fullest
extent it may effectively do so, the defense of an inconvenient forum to the
maintenance of such action or proceeding. The Borrower irrevocably consents to
the service of copies of the summons and complaint and any other process which
may be served in any such action or proceeding by the mailing of copies of such
process to the Borrower at its address specified in Section 6.02. The Borrower
agrees that a fmal judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.
(b) Nothing in this Section 6.08 shall affect the right of the Bank to
serve legal process in any other manner permitted by law or affect the right of
the Bank to bring any action or proceeding against the Borrower or its property
in the courts of other jurisdictions.
SECTION 6.09. Binding Effect; Governing Law. This Agreement shall be
binding upon and inure to the benefit of the Borrower and the Bank and their
respective successors and assigns, except that the Borrower shall not have the
right. @o assign its rights hereunder or any interest herein without the prior
written consent of the Bank. This Agreement and the Note shall be governed by,
and construed in accordance with, the laws of the State of New York.
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SECTION 6. 1 0. Execution in Counterparts. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute but one and
the same agreement.
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SECTION 6.1 1. WAIVER OF JURY TRIAL. EACH OF THE BORROWER AND THE BANK
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT TO WHICH IT IS A
PARTY OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers hereunto duly authorized, as of the date
first above written.
XXXXX XXXXXX EUROPE, INC.
By_____________________
Title:
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "Rabobank Nederland",
New York Branch
By_____________________
Authorized Officer
By_____________________
Authorized Officer
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