$22,031,666.92
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of July 31, 1998
Between
XXXXXXX INDUSTRIES, INC.
XXXXXXX BUS CORPORATION
WHEELED COACH INDUSTRIES, INC.
CAPACITY OF TEXAS, INC.
MOBILE-TECH CORPORATION
WORLD TRANS, INC.
(the Borrowers)
and
THE FINANCIAL INSTITUTIONS PARTY
HERETO FROM TIME TO TIME
(the Lenders)
and
NATIONSBANK, N.A.
(the Agent)
AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
Dated as of July 31, 1998
XXXXXXX INDUSTRIES, INC., a Missouri corporation ("Xxxxxxx"),
XXXXXXX BUS CORPORATION, a Kansas corporation ("Bus"), WHEELED COACH
INDUSTRIES, INC., a Florida corporation ("WCI"), CAPACITY OF TEXAS,
INC., a Texas corporation ("Capacity"), MOBILE-TECH CORPORATION, a
Kansas corporation ("Mobile") and WORLD TRANS, INC., a Kansas
corporation ("World Trans") and together with Xxxxxxx, Bus, Capacity,
Mobile and WCI, the "Borrowers" and each, a "Borrower"), the financial
institutions party to this Agreement from time to time (the "Lenders"),
and NATIONSBANK, N.A. (f/k/a NationsBank of Georgia, N.A.), a national
banking association ("NationsBank"), as agent for the Lenders (the
"Agent"), agree as follows:
Preliminary Statement
The Borrowers, together with certain Affiliates since
dissolved, entered into a Loan and Security Agreement with NationsBank
and the Agent dated as of April 21, 1995 (the "Original Agreement") and
NationsBank has been providing loans and other financial accommodation
under the Original Agreement since that date. The Borrowers have
requested that NationsBank and the Agent amend the Original Agreement in
certain respects to reflect certain changes in the Borrowers financing
needs and NationsBank and the Agent have agreed to do so. The parties
now wish to set forth those agreements in writing. It is the intention
of the parties that the Secured Obligations under this Amended and
Restated Loan and Security Agreement (this "Agreement") in all respects
constitute a continuation of the outstanding Loans under the Original
Agreement and not a refinancing thereof or a novation with respect
thereto.
The Borrowers confirm that they remain a consolidated group of
companies under Xxxxxxx as the common parent. The Borrowers acknowledge
and agree that they are a part of an integrated, interdependent group of
companies that on a regular basis make intercompany loans to one another
and that the Lenders are relying upon the joint and several obligations
of the Borrowers in providing the financing accommodations described
herein and would not have provided such accommodations without such
joint and several undertakings of all of the Borrowers.
Statement of Agreement
ARTICLE 1.
DEFINITIONS
SECTION 1.1 Definitions. For the purposes of this Agreement:
"3000 Bus Chassis Sublimit" means the sum of $500,000.
"Acceptable Chassis Manufacturer" means any Person that
manufactures motor vehicle chassis listed on Schedule 1.1, and otherwise
acceptable to the Required Lenderi in all respects.
"Account Debtor" means a Person who is obligated on a
Receivable.
"Acquire" or "Acquisition," as applied to any Business
Unit or Investment, means the acquiring or acquisition of such Business
Unit or Investment by purchase, exchange, issuance of stock or other
securities, or by merger, reorganization or any other method.
"Affiliate" means, with respect to a Person, (a) any partner,
officer, shareholder (if holding more than ten percent (10%) of the
outstanding shares of capital stock of such Person), director, employee
or managing agent of such Person, (b) any other Person (other than a
Subsidiary) that, (i) directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, such given Person, (ii)directly or indirectly beneficially
owns or holds ten percent (10%) or more of any class of voting stock or
partnership or other voting interest of such Person or any Subsidiary of
such Person, or (iii) ten percent (10%) or more of the voting stock or
partnership or other voting interest of which is directly or indirectly
beneficially owned or held by such Person or a Subsidiary of such Person
The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
a Person, whether through ownership of voting secaarities or parmership
or other voting interest, by contract or otherwise.
"Agency Account" means an account of a Borrower maintained by
it with a Clearing Bank pursuant to an Agency Account Agreement.
"Agency Account Ageement" means an agreement among a Borrower,
the Agent and a Clearing Bank, if other than the Agent, in form and
substance satisfactory to the Agent, concerning the collection of
payments which represent the proceeds of Receivables or of any other
Collateral.
"Agent" means NationsBank, N.A., a national banking
association, and any successor agent appointed pursuant to Section 14.9
hereof.
"Agent's Office" means the office of the Agent specified in or
determined in accordance with the provisions of Section 15.1.
"Agreement" means and includes this Agreement, including all
Schedules, Exhibits and other attachments hereto, and all amendments,
modifications and supplements hereto and thereto.
"Agreement Date" means the date as of which this Agreement is dated.
"Anniversary" means the date one year from the Effective Date
which falls on the same day of the same month as the Effective Date and
the same day of each year thereafter.
"Applicable Interest Margin" means effective June 1, 1998,
0.00% as to Prime Rate Loans, and 1.75% as to Eurodollar Rate Loans.
"Applicable Law" mans all applicable provisions of
constitutions, statutes, niles, regulations and orders of all
governmental bodies and of all orders and decrees of all courts and
arbitrators, including without limitation, Environmental Laws.
"Applicable percentage" means, as applied to
(a) Eligible Receivables - 85%,
(b) Eligible Finished Goods Inventor'] - (i) 95% as to all
Eligible Finished Goods Inventory described in clause (a) of the
definition thereof; and (ii) 50% as to all Eligible Finished Goods
Inventory described in clause (b) of the definition thereof;
(c) Eligible Chassis Inventory - 95%,
(d) Eligible Raw Materials Inventory - 50%,
(e) Eligible Used Vehicle Inventory- 50%, and
(f) Eligible 3000 Bus Chassis Inventory - 50%,
or in each case such lesser percentage as the Agent may in the exercise
of its reasonable credit judgment determine from time to time.
"Asset Disposition" means the disposition of any asset of a
Borrower or any of its Subsidiaries, other than sales of Inventory in
the ordinary course of business.
"Assigment and Acceptance" means an assignment and acceptance
in the form attached hereto as Exhibit E assigning ail or a portion of
a Lenders interests, rights and obligations under this Agreement
pursuant to Section 13.1.
"Availability" means, at the time of determination, (a) the lesser
of (i) the Borrowing Base at such time and (ii) the Revolving Credit
Facility at such time, minus (b) the sum of the principal amount of
Revolving Credit Loans outstanding and the Letter of Credit Reserve at
such time.
"Benefit Plan" means an "employee pension benefit plan" as
defined in Section 3(2) of ERISA (other than a Multiemployer Plan) in
respect of which any Borrower or any Related Company is, or within the
immediately preceding six years was, an "employer" as defined in
Section 3(5) of ERISA, including such plans as may be established after
the Agreement Date.
"Borrower." means each of Xxxxxxx, Bus, WCI, Capacity, Mobile
and World Trans.
"Borrowers' Representative" means the Person appointed
pursuant to Section 4.11.
"Borrowing Base" means, at any time as to any Borrower, an amount equal
to:
(a) the Applicable Percentage of the face value of Eligible
Receivables, other than Eligible Foreign Receivables, due and owing to
the Borrowers at such time, minus (ii) the face value of all Contras
relating to such Eligible Receivables at any time that the aggregate
face value of all such Contras of the Borrowers exceeds $100,000,. plus
(b) the lesser of (i) the Applicable Percentage of the face
value of Eligible Foreign Receivables due and owing to the Borrowers at
such time minus the face amount of all Contras relating to such
Eligible Foreign Receivables, and (ii) the Foreign Receivables
Sublimit, plus
(c) the lesser of (i) the Applicable Percentage of the Cost
of Eligible Finished Goods Inventory and (ii) the Finished Goods
Sublimit, plus
(d) the lesser of (i) the Applicable Percentage of the Cost
of Eligible Chassis Inventory and (ii) the Chassis Sublimit, plus
(e) the lesser of (i) the Applicable Percentage of the Cost
of Eligible Raw Materials Inventory and (ii) the Raw Materials
Sublimit, plus
(f) the lesser of (i) the Applicable Percentage of the Cost
of Eligible Used Vehicle Inventory and (ii) the Used Vehicle Sublimit,
plus
(g) the lesser of (i) the Applicable Percentage of the Cost
of Eligible 3000 Bus Chassis Inventory and (ii) the 3000 Bus Chassis
Subllmit, minus
(h) such reserves as the Agent in its reasonable credit
judgment may establish from time to time with respect to such Borrower.
"Borrowing Base Certificate" means a certificate in the form
attached hereto as
Exhibit C.
"Bus" means Xxxxxxx Bus Corporation, a Kansas corporation.
"Business Day" means, any day other than a Saturday, Sunday
or legal holiday on which banks in Atlanta, Georgia are not open for
the conduct of a substantial part of their commercial banking business
and, when used with respect to Eurodollar Rate Loans, means any such
day on which dealings are also carried on in the applicable interbank
Eurodollar market.
"Business Unit" means the assets constituting the business or
a division or operating unit thereof of any Person.
"Capacity" means Capacity of Texas, Inc., a Texas corporation.
"Capital Expenditures" means, with respect to any Person, all
expenditures made and liabilities incurred for the acquisition of
assets (other than assets which constitute a Business Unit) which are-not,
in accordance with GAAP, treated as expense items for such Person in
the year made or incurred or as a prepaid expense applicable to a future
year or years.
"Capitalized Lease" means a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means Indebtedness represented
by obligations under a Capitalized Lease other than an IRB Lease, and
the amount of such Indebtedness shall be the capitalized amount of such
obligations determined in accordance with GAAP.
"Cash Equivalents" means
(a) marketable direct obligations issued or unconditionally
guaranteed by the United States Government or issued by any agency
thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition
thereof,
(b) commercial paper maturing no more than one year from the
date issued and, at the time of acquisition thereof, having a rating of
at least A-1 from Standard & Poor's Corporation or at least P-1 from
Xxxxx'x Investors Service, Inc.; and
(c) certificates of deposit or bankers' acceptances issued in
Dollar denominations and maturing within one year from the date of
issuance thereof issued by any commercial bank organized under the laws
of the United States of America or any State thereof or the District of
Columbia having combined capital and surplus of not less than
$100,000,000 and, unless issued by the Agent or a Lender, not subject
to set-off or offset rights in favor of such bank arising from any
banking relationship with such bank.
"Chassis Sublimit" means the sum of $10,000,000.
"Clearing Bank" means NationsBank and any other banking
institution with which an Agency Account has been established pursuant
to an Agency Account Agreement.
"Collateral" means and includes all of each Borrower's right, title
and interest in and to each of the following, wherever located and
whether now or hereafter existing or now owned or hereafter acquired or
arising:
(a) all Receivables,
(b) all Inventory,
(c) all Equipment,
(d) all General Intangibles,
(e) all Real Estate covered by any Mortgage,
(f) all goods and other property, whether or not delivered,
(i) the sale or lease of which gives or purports to give
rise to any Receivable, including, but not limited to, all merchandise
returned or rejected by or repossessed from customers, or
(ii) securing any Receivable,
including without limitation, all rights as an unpaid vendor or
lienor (including, without limitation, stoppage in transit, replevin
and reclamation) with respect to such goods and other property,
(g) all mortgages, deeds to secure debt and deeds of trust on real
or personal property, guaranties, leases, security agreements, and
other agreements and property which secure or relate to any Receivable
or other Collateral, or are acquired for the purpose of securing and
enforcing any item thereof,
(h) all documents of title, policies and certificates of
insurance, securities, chattel paper and other documents and
instruments evidencing or pertaining to any and all items of
Collateral,
(i) all files, correspondence, computer programs, tapes, discs and
related data processing software which contain information identifying
or pertaining to any of the Receivables or any Account Debtor, or
showing the amounts thereof or payments thereon or otherwise necessary
or helpful in the realization thereon or the collection thereof,
(j) all cash deposited with the Agent or any Lender or any
Affiliate of the Agent or any Lender or which the Agent, for the
benefit of the Lenders, or any Lender or such Affiliate is entitled to
retain or otherwise possess as collateral pursuant to the provisions of
this Agreement or any of the Security Documents or any agreement
relating to any Letters of Credit, and
(k) any and all products and proceeds of the foregoing (including,
but not limited to, any claim to any item referred to in
this definition, and any claim against any third party for loss of
damage to or destruction of any or all of, the Collateral or for
proceeds payable under, or unearned premiums with respect to,
policies of insurance) in whatever form, including, but not limited
to, cash, negotiable instruments and other instruments for the
payment of money, chattel paper, security agreements and other
documents.
"Xxxxxxx" means Xxxxxxx Industries, Inc., a Missouri corporation.
"Commitment" means, as to each Lender at any time, the
Revolving Credit Commitment of such Lender.
"Commitment Percentage" means, as to any Lender, the
percentage of the Total Commitment obtained by dividing such Lender's
Commitment by the Total Commitment.
"Consolidated Subsidiaries" means, as to Xxxxxxx, Bus, WCI,
Capacity, Mobile, World Trans, Global Captive Casualty & Surety
Company, a Kansas corporation, Xxxxxxx Financial, Inc., a Kansas
corporation, Xxxxxxx International, Inc., a U.S. Virgin Islands
corporation, and any other Subsidiaries of Xxxxxxx whose accounts are
at the time in question, in accordance with GAAP and pursuant to the
written consent of the Required Lenders, which consent may be withheld
in their absolute discretion and conditioned upon, inter alia, the
execution and delivery of guaranties, security agreements, mortgages
and other documents required by the Required Lenders in their absolute
discretion, consolidated with those of Xxxxxxx.
"Contaminant" means any waste, pollutant, hazardous
substance, toxic substance, hazardous waste, special waste, petroleum
or petroleum-derived substance or waste, or any constituent of any such
substance or waste.
"Contra" means at the time of determination, as to any
Receivable, the aggregate amount of all offsets, deductions,
counterclaims, disputes, or other contingencies with respect to such
Receivable and any other amount owing by a Borrower to the Account
Debtor on such Receivable of a Borrower.
"Controlled Disbursement Account" means one or more accounts
maintained by and in the name of one or more Borrowers with a
Disbursing Bank for the purposes of disbursing Revolving Credit Loan
proceeds and amounts deposited thereto.
"Copyrights" means and includes, as to any Person, all of
such Person's then-owned or existing and future acquired or arising
right, title and interest in and to
(a) all copyrights, fights and interests in copyrights, works
protectable by copyright, copyright registrations and copyright
applications;
(b) all renewals of any of the foregoing;
(c) all income, royalties, damages and payments now or hereafter
due and/or payable under any of the foregoing, including, without
limitation, damages or payments for past or future infringements of any
of the foregoing;
(d) the right to xxx for past, present and future infringements of
any of the foregoing; and
(e) all rights corresponding to any of the foregoing throughout
the world.
"Cost," when used in connection with Eligible Inventory,
means the lesser of (i) cost computed on a first-in-first-out basis as
determined in accordance with GAAP, and-(ii) fair market value at the
time of determination.
"Current Assets" means, with respect to any Person, the
aggregate amount of assets of such Person which should properly be
classified as current assets in accordance with GAAP, after deducting
adequate reserves in each case where a reserve is appropriate in
accordonce with GAAP.
"Current Liabilities" means, with respect to any Person, the
aggregate amount of all Liabilities of such Person which should
properly be classified as current liabilities in acerdance with GAAP,
provided, that when applied to one or more Borrowers, there shall be
excluded from Current Liabilities any amount of the Secured Obligations
so classified.
"Current Maturities" means, when used in connection with Long-
Term Liabilities, as of any date of determination, the principal amount
of such Liabilities coming due on such date or during the twelve-month
period following such date in accordance with the terms of any
instrument or agreement evidencing such Liabilities or relating
thereto.
"Default" means any of the events specified in Section 12.1
which with the passage of time or giving of notice or both would
constitute an Event of Default.
"Default Interest Margin" means 4.0%.
"Disbursing Bank" means any commercial bank with which a
Controlled Disbursement Account is maintained after the Effective Date.
"Dollar" and "$" means freely transferable United States dollars.
"Effective Date" means the later of:
(a) the Agreement Date, and
(b) the first date on which all of the conditions set forth in
Artide 5 shall have been fulfilled.
"Effective Interest Rate" means each rate of interest per
annum on the Revolving Credit Loans in effect from time to time
pursuant to the provisions of Sections 4.1(a) and (b).
"Eligible 3000 Bus Chassis Inventory" means, as of the date
of determination, new, unused motor vehicle chassis (a) manufactured by
Coilins or a Subsidiary of Xxxxxxx within twelve (12) months of such
date of determination, and (b) as to which the Trustee holds the
manufacturers certificate or statement of origin for the benefit of the
Agent and the Lenders under the Trust Agreement.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, having total
assets in excess of $1,000,000,000 or any commercial finance or asset
based lending Affiliate of any such commercial bank; (ii) a savings and
loan association or savings bank organized under the laws of the United
States, or any State thereof, having a net worth of at least
$250,000,000 calculated in accordance with GAAP; and (iii) any Lender
listed on the signature page of this Agreement; provided in each case
that the representation contained in Section 13.1(c)(i) hereof shall
be applicable with respect to such institution or Lender.
"Eligible Chassis Inventory" means, as of the date of determination,
new, unused motor vehicle chassis (i) purchased by a Borrower from a
dealer for an Acceptable Chassis Manufacturer (1) within twelve (12)
months of such date of determination, or (2) if such purchase occurs
prior to such 12-month period, for which such Borrower has obtained a
valid and binding purchase order or contract .to purchase acceptable to
the Agent, (ii)as to which the manufacturer's certificate or statement
of origin is held by, or is in transit to, the Trustee for the benefit
of the Agent and the Lenders under the Trust Agreement, and (iii) as
to which the purchase price has been paid in full by such Borrower.
"Eligible Finished Goods Inventory" means, as of the date of
determination, (a) in the case of motor vehicles, any such motor
vehicle the manufacture of which has been completed within six (6)
months of such date of determination and which is held for sale in the
ordinary course of business without further manufacturing or processing
by such Borrower, and (b) in the case of other finished goods, such
goods as are held by a Borrower for sale in the ordinary course of
business without further manufacturing or processing.
"Eligible Foreign Receivables" means Receivables owing by an
Account Debtor that is located outside of the United States of America
(for this purpose, the Commonwealth of Puerto Rico shall be considered
located within the United States of America), other than, (i) such
Receivables arising under contracts with foreign governments to the
extent expressly approved by the Agent, and (ii)such Receivables the
payment of which is supported by a letter of credit acceptable to the
Agent in all respects.
"Eligible Inventory" means Inventory which the Agent, in the
exercise of its reasonable credit judgment, determines to meet all of
the following requirements:
(a) such Inventory is owned by a Borrower, is stored at a location
listed on Schedule 6.1(u), is subject to the Security Interest, which
is perfected as to such Inventory, and is subject to no other Lien
whatsoever other than a Permitted Lien,
(b) such Inventory consists of Eligible Finished Goods Inventory,
Eligible Chassis Inventory, Eligible Raw Materials Inventory, Eligible
Used Vehicle Inventory or Eligible 3000 Bus Chassis Inventory,
(c) such Inventory is in good condition and meets all standards
imposed by any govemmental agency, or department or division thereof,
having regulatory authority over such goods, their use or sale,
(d) such Inventory is currently either usable or salable, at
prices approximating at least Cost, in the normal course of such
Borrower's business and is not slow moving or stale,
(e) such Inventory is not obsolete or returned or repossessed or
used goods taken in trade to the extent that such Inventory is not
Eligible Used Vehicle Inventory,
(f) such Inventory is located within the United States at one of
the locations set forth in the most recent Schedule of Inventory,
(g) such Inventory is in the possession and control of a Borrower
and not any third party, or if the Inventory is held by a third
party bailee and a negotiable instrument. has not been issued with
respect to it (i) a financing statement, which names the third
party bailee as the debtor/bailee, names a Borrower as the secured
party/xxxxxx, names the Agent as assignee of the secured
party/xxxxxx and contains a description of such Inventory
acceptable to the Agent and is otherwise in compliance with the
requirements of Section 9.304(3) of the UCC, has been filed in the
appropriate filing office and (ii) such other steps as the Agent
may reasonably require in order to establish and preserve the
priority of the Security Interest against secured creditors of the
third party bailee or a Borrower shall have been taken,
(h) if such Inventory is located in a warehouse or other
facility leased by a Borrower, the lessor has delivered to the
Agent, on behalf of the Lenders, a waiver and consent in form and
substance satisfactory to the Agent, and
(i) such Inventory is not determined by the Agent, on behalf
of the Lenders, in the exercise of its reasonable credit judgment,
to be ineligible for any other reason.
"Eligible Raw Materials Inventory" means all raw materials
used or consumed in the business of any Borrower, other than motor
vehicle chassis.
"Eligible Receivable" means a Receivable that consists of the
unpaid portion of a Rebate Receivable or the obligation stated on the
invoice issued to an Account Debtor with respect to Inventory sold and
shipped to or services performed for such Account Debtor in the ordinary
course of business, net of any credits or rebates owed by the applicable
Borrower to the Account Debtor, and that the Agent, in the exercise of
its reasonable credit judgment, determines to meet all of the following
requirements:
(a) such Receivable is owned by a Borrower and represents a
complete bona fide transaction which requires no further act under
any circumstances on the part of any Borrower to make such
Receivable payable by the Account Debtor,
(b) the due date for such Receivable shall not be more than 30 days
after the date of the shipment of the goods the sale of which gave
rise to such Receivable (or the ate of performance of services for
Receivables arising from the performance of services),
(c) no more than 90 days have elapsed from the date of the
original invoice, unless the Account Debtor is New York City, in
which case no more than 150 days have elapsed from the date of the
original invoice,
(d) the goods the sale of which gave rise to such Receivable
were shipped or delivered to the Account Debtor on an absolute sale
basis and not on a xxxx and hold sale basis, a consignment sale
basis, a guaranteed sale basis, a sale or return basis, or on the
basis of any other similar understanding and no material part of
such goods has been returned or rejected,
(e) such Receivable is not evidenced by chattel paper or an
instrument of any kind unless such chattel paper or instrument has been
collateraily assigned to the-Agent, for the benefit of itself as Agent
and the Lenders, pursuant to an assignment in form and substance
satisfactory to the Agent and is in the possession of the Agent,
(f) the Account Debtor with respect to such Receivable is not
insolvent or the subject of any bankruptcy or insolvency proceedings of
any kind or of-any other proceeding or action, threatened or pending,
which might, in the Agent's sole judgment, have a Materially Adverse
Effect on such Account Debtor,
(g) such Receivable is not owing by an Account Debtor having 50% or
more in face value of its then-existing accounts owing to the Borrowers
remaining unpaid more than 90 days (or in the case of New York City, 150
days) after the date of the original invoice,
(h) such Receivable is not owing by an Account Debtor whose then-
existing accounts owing to the Borrowers exceed in face amount 20% of
the Borrowers' total Eligible Receivables,
(i) if such Receivable arises from the performance of services,
such services have been fully rendered and do not relate to any warranty
claim or obligation,
(j) [Reserved]
(k) such Receivable is a valid, legally enforceable obligation of
the Account Debtor with respect thereto,
(l) such Receivable is subject to the Security Interest, which is
perfected as to such Receivable, and is subject to no other Lien
whatsoever other than a Permitted Lien,
(m) such Receivable is evidenced by an invoice or other
documentation in form acceptable to the Agent,
(n) the Receivable is not subject to the Assignment of Claims Act of
1940, as amended from time to time, or any Applicable Law now or
hereafter existing similar in effect thereto, or to any other
prohibition (under Applicable Law, by contract or otherwise) against its
assignment or requiring notice of or consent to such assignment, unless
all such required notices have been given, all such required consents
have been received and all other procedures have been complied with such
that such Receivable shall have been duly and validly assigned to the
Agent, for the benefit of the Lenders,
(o) the goods giving rise to such Receivable were not, at the time
of the sale thereof, subject to any Lien, except the Security Interest
and Permitted Liens,
(p) no Borrower is in breach of any express or implied representation or
warranty with respect to the goods the sale of which gave rise to such
Receivable nor in breach of any representation or warranty, covenant or
other agreement contained in the Loan Documents with repect to such
Receivable,
(q) such Receivable does not arise out of any transaction with any
Subsidiary, Affiliate, creditor, tenant or lessor of the relevant
Borrower,
(r) the relevant Borrower is not the beneficiary of any letter of
credit, nor has any bond or other undertalcing by a guarantor or surety
been obtained, supporting such Receivable and the Account Debtor's
obligations in respect thereof,
(s) such Receivable does not arise out of finance or similar
charges by a Borrower or other fees for the time value of money,
(t) the Account Debtor with respect to such Receivable is not
located in New Jersey or any other State denying creditors access to its
courts in the absence of qualification to transact business in such
State or the filing of a Notice of Business Activities Report or other
similar filing, unless the relevant Borrower has either qualified as a
foreign corporation authorized to transact business in such State or has
filed a Notice of Business Activities Report or similar filing with the
applicable State agency for the then-current year, and
(u) neither the Account Debtor with respect to such Receivable, nor
such Receivable, is determined by the Agent, in the exercise of its
reasonable credit judgment, discretion to be ineligible for any other
reason.
"Eligible Used Vehicle Inventory" means motor vehicles in
good, saleable condition as used vehicles in the ordinary course of a
Borrowers business which a Borrower has taken in trade in connection
with the sale of other vehicles manufactured by it and as to which all
certificates of title and other title doaunents are held by the Trustee
under the Trust Agreement for the benefit of the Agent and the Lenders.
"Environmental Laws" means all federal, state, local and
foreign laws now or hereafter in effect relating to pollution or
protection of the environment, including laws relating to emissions;
discharges, Releases or threatened Releases of pollutants, Contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes into
the environment (including, without limitation, ambient air, surface
water, ground water, or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, removal,
transport, or handling of pollutants, Contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes, and any and all
regulations, notices or demand letters issued, entered, promulgated or
approved thereunder; such laws and regulations include but are not
limited to the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et
seq., as amended; the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. ' 9601 et seq., as amended; the Toxic
Substances Control Act, 15 U.S.C. ' 2601 et seq., as amended; the Clean
Air Act, 46 U.S.C. ' 7401 et seq., as amended; and state and federal
lien and environmental cleanup programs.
"Environmental Lien" means a Lien in favor of any governmental
entity for (a) any liability under Environmental Laws or (b) damages
arising from, or costs incurred by such governmental entity in response
to, a Release or threatened Release of Contaminant into the
environment.
"Equipment" means and includes, as to any Person, all of such
Person's then-owned or existing and future acquired or arising
machinery, apparatus, equipment, motor vehicles, tractors, trailers,
rolling stock, fittings, fixtures and other tangible personal property
(other than Inventory) of every kind and description used in such
Person's business operations or owned by such Person or in which such
Person has an interest, and all parts, accessories and special tools and
all increases and accessions thereto and substitutions and replacements
therefor.
"ERISA" means the Employee Retirement Income Security Act of
1974, as in effect from time to time.
"Eurodollar Rate" means, with respect to any Eurodollar Rate
Loan for the Interest Period applicable thereto, a simple per annum
interest rate determined pursuant to the following formula:
Eurodollar Rate = Interbank Offered Rate
1 - Eurodollar Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as of the effective
date of any change in the Eurodollar Reserve Percentage.
"Eurodollar Rate Loan" means a Eurodollar Rate Revolving
Credit Loan or a Eurodollar Rate Term Loan.
"Eurodollar Rate Revolving Credit Loan" means a Revolving
Credit Loan which bears interest determined with reference to the
Eurodollar Rate.
"Eurodollar Rate Term Loan" means a Term Loan which bears
interest determined with reference to the Eurodollar Rate.
"Eurodollar Reserve Percentage" applicable to any Interest
Period means the rate (expressed as a decimal) applicable to the Lenders
during such Interest Period under regulations issued from time to time
by the Board of Governors of the Federal Reserve System for determining
the maximum reserve requirement (including, without limitation, any
basic, supplemental, emergency or marginal reserve requirement) of the
Lenders with respect to "Eurocurrency Liabilities" as that term is
defined under such regulations. Without limiting the effect of the
foregoing, the Eurodollar Reserve Percentage shall include any other
reserves required to be maintained by the Lenders by reason of any
regulatory change with respect to (i) any category of liabilities that
includes deposits by reference to which the "interbank Offered Rate" is
to be determined as provided in the definition of "Interbank Offered
Rate" below or (ii) any category of extensions of credit or other assets
that includes Eurodollar Rate Loans.
"Event of Default" means any of the events specified in
Section 12.1, provided that any requirement for notice or lapse of time
or any other condition has been satisfied.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate per annum equal for each day during such
period to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve system arranged by
federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of Atlanta, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day
on such transactions received by NationsBank from three federal funds
brokers of recognized standing selected by NationsBank.
"Financial Officer" means the chief financial officer of Xxxxxxx.
"Financing Statements" means any and all Uniform Commercial
Code financing statements, in form and substance satisfactory to the
Agent, executed and delivered by a Borrower or a Guarantor to the Agent,
naming the Agent, for the benefit of the Lenders, as secured party and
such Borrower or Guarantor as debtor, in connection with this Agreement
and the Loan Documents.
"Finished Goods Sublimit" means the sum of $7,000,000.
"Fiscal Year" means the accounting year of the Borrowers
beginning November 1 of each year and ending on October 31 of the
following year.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
of (i) the sum of consolidated Net Income of Xxxxxxx and its
Consolidated Subsidiaries for such period plus (without duplication)
consolidated depreciation expense plus consolidated amortization plus
consolidated interest expense plus consolidated Non-Cash Charges of
Xxxxxxx and its Consolidated Subsidiaries for such period to the extent
the same were deducted in computing such consolidated Net Income to (ii)
the sum of consolidated Current Maturities of Long-Term Liabilities and
Capitalized Lease Obligations as of the last day of such period plus
consolidated interest expense plus consolidated Internally Funded
Capital Expenditures plus consolidated Restricted Payments of Xxxxxxx
and its Consolidated Subsidiaries, in each case for such period.
"Foreign Receivables Sublimit" means the sum of $200,000.
"GAAP" means generally accepted accounting principles consistently
applied and maintained throughout the period indicated and, when used
with reference to the Borrowers or any Subsidiary, consistent with the
prior financial practice of the Borrowers, as reflected on the financial
statements referred to in Section 6.1(n); provided, however, that, in
the event that changes shall be mandated by the Financial Accounting
Standards Board or any similar accounting authority of comparable
standing, or shall be recommended by the Borrowers' independent public
accountants, such changes shall be included in GAAP as applicable to the
Borrowers only from and after such date as the Borrowers, the Required
Lenders and the Agent shall have amended this Agreement to the extent
necessary to reflect any such changes in the financial covenants set
forth in Article 11.
"General Intangibles" means and includes, as to any Person,
all of such Person's then-owned or existing and future acquired or
arising general intangibles, choses in action and causes of action and
all other intangible personal property of such Person of every kind and
nature (other.than Receivables), including, without limitation, any
rights under contracts not yet earned by performance and not evidenced
by an instrument or chattel paper, all Proprietary Rights, corporate or
other business records, inventions, designs, blueprints, plans,
specifications, goodwill, computer software, customer lists,
registrations, licenses, franchises, tax refund claims, reversions or
any rights thereto and any other amounts payable to such Person from any
Plan or other employee benefit plan, rights and claims against carriers
and shippers, rights to indemnification, business interruption insurance
and proceeds thereof, property, casualty or any similar type of
insurance and any proceeds thereof, proceeds of insurance covering the
lives of key employees on which such Person is beneficiary and any
letter of credit, guarantee, claims, security interest or other security
held by or granted to such Person to secure payment by an Account Debtor
of any of the Receivables.
"Governmental Approvals" means all authorizations, consents,
approvals, licenses and exemptions of, registrations and filings with,
and reports to, all governmental bodies, whether federal, state, local
or foreign national or provincial and all agencies thereof.
"Guarantor" means one of Xxxxxxx International, Inc., a U.S.
Virgin Islands corporation, Xxxxxxx Financial Services, Inc., a Kansas
corporation, and Global Captive Casualty & Surety Company, a Kansas
corporation, and each Person becoming a party as a Guarantor to the
Guaranty Agreement after the Effective Date, and "Guarantors" means more
than one of the foregoing.
"Guarantor Collateral" means property of the Guarantors in
which a Lien is granted in favor of the Agent for the benefit of the
Lenders under the Guarantor Security Agreement.
"Guarantor Security Agreement" means the Security Agreement,
in form and substance satisfactory to the Agent and the Lenders,
executed and delivered on or about the Effective Date by each of the
Guarantors pursuant to which each Guarantor grants a continuing Lien and
security interest in all of its property as collateral security for its
obligations under the Guaranty Agreement.
"Guaranty," "Guaranteed" or to "Guarantee" as applied to any
obligation of another Person shall mean and include
(a) a guaranty (other than by endorsement of negotiable
instruments for collection in the ordinary course of business),
directly or indirectly, in any manner, of any part or all of such
obligation of such other Person, and
(b) an agreement, direct or indirect, contingent or otherwise, and
whether or not constituting a guaranty, the practical effect of which is
to assure the payment or performance (or payment of damages in the event
of nonperformance) of any part or all of such obligation of such other
Person whether by
(i) the purchase of securities or obligations,
(ii) the purchase, sale or lease (as lessee or lessor) of
property or the purchase or sale of services primarily for the
purpose of enabling the obligor with respect to such obligation to
make any payment or performance (or payment of damages in the event
of nonperformance) of or on account of any part or all of such
obligation, or to assure the owner of such obligation against loss,
(iii) the supplying of funds to or in any other manner
investing in the obligor with respect to such obligation,
(iv) repayment of amounts drawn down by beneficiaries of
letters of credit, or
(v) the supplying of funds to or investing in a Person on
account of all or any part of such Person's obligation under a
Guaranty of any obligation or indemnifying or holding harmless,
in any way, such Person against any part or all of such obligation.
"Guaranty Agreement" means the Guaranty Agreement, in form and
substance satisfactory to the Agent and the Lenders, executed and
delivered on or about the Effective Date by each of the Guarantors
pursuant to which the Guarantors, joinfly and severally, guaranty the
Secured Obligations.
"Indebtedness" of any Person means, without duplication, all
Liabilities of such Person, and to the extent not otherwise included in
Liabilities, the following:
(a) all obligations for Money Borrowed or for the deferred
purchase price of property or services,
(b) all obligations (including, during the noncancellable term of
any lease in the nature of a title retention agreement, all future
payment obligations under such lease discounted to their present value
in accordance with GAAP) secured by any Lien to which any property or
asset owned or held by such Person is subject, whether or not the
obligation secured thereby shall have been assumed by such Person,
(c) all obligations of other Persons which such Person has
Guaranteed, including, but not limited to, all obligations of such
Person consisting of recourse liability with respect to accounts
receivable sold or otherwise disposed of by such Person,
(d) all obligations of such Person in respect of Interest Rate
Protection Agreements, and
(e) in the case of the Borrowers (without duplication) all
obligations under the Revolving Credit Loans and the Term Loans.
"Installment Payment Date" means the first day of each
calendar month commencing on June 1, 1995 and continuing thereafter
until the Term Loans have been irrevocably paid in full.
"Interbank Offered Rate" for an Interest Period means the rate
per annum (rounded upwards, if necessary to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered Rate"
shall mean, for any Eurodollar Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on the Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period;
provided, however, that if more than one rate is specified on the
Reuters Screen LIBO Page, the applicable rate shall be the arithmetic
mean of all such rates.
"Interest Payment Date" means (a) as to Prime Rate Loans, the
first day of each calendar month commencing on June 1, 1995 and
continuing thereafter until the Secured Obligations have been
irrevocably paid in flail and (b) as to Eurodollar Rate Loans, the
earlier of (i) the last day of each applicable Interest Period or (ii)
quarterly.
"Interest Period" means, with respect to each Eurodollar Rate
Loan, the period commencing on the date of the making or continuation of
or conversion to such Eurodollar Rate Loan and ending one, two, three or
six months thereafter, as the Borrower may elect in the applicable
Notice of Borrowing or Notice of Conversion or Continuation; provided,
that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall, subject to the provisions of clause (iii)
below, be extended to the next succeeding Business Day, unless such
Business Day falls in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day;
(ii) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month included in
such Interest Period) shall, subject to clause (iii) below, end on
the last Business Day of a calendar month;
(iii) any Interest Period that would otherwise end after the
last day of the then effective term of this Agreement shall end on
such last day;
(iv) no Interest Period applicable to a Eurodollar Rate Term
Loan may end after the next installment of principal is due unless
the aggregate principal amount of Prime Rate Term Loans and Eurodollar
Rate Loans having Interest Periods ending prior to such payment date
is at least equal to the amount of principal repayment due hereunder on
such payment date; and
(v) notwithstanding clause (iii) above, no Interest Period
shall have a duration of less than one month and if any applicable
Interest Period would be for a shorter period, such Interest Period
shall not be available hereunder.
"Interest Rate Protection Agreement" shall mean an interest
rate swap, cap or collar agreement or similar arrangement between any
Person and a financial institution providing for the transfer or
mitigation of interest risks either generally or under specific
contingencies.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time.
"lnternally Funded Capital Expenditures" means, for any period,
all Capital Expenditures paid or incurred by a Borrower other than those
financed by the incurrence of Permitted Purchase Money Indebtedness.
"Inventory" means and includes, as to any Person, all of such
Person's then-owned or existing and future acquired or arising
inventory, as such term is defined in the Uniform Commercial Code, and
shall include, without limitation,
(a) all goods intended for sale or lease by a Person, or
for display or demonstration, including, without limitation, all
motor vehicles, wheel chair and other lifts and related accessories
and other products intended for sale by such Person to its customers,
(b) all work in process,
(c) all raw materials and other materials and supplies of
every nature and description used or which might be used in connection
with the manufacture, packing, shipping, advertising, selling, leasing
or furnishing of such goods or otherwise used or consumed in such
Person's business, including, without limitation, motor vehicle chassis,
and
(d) all documents evidencing and general intangibles relating
to any of the foregoing.
"Investment" means, with respect to any Person:
(a) the acquisition or ownership by such Person of any share
of capital stock, evidence of Indebtedness or other security issued
by any other Person,
(b) any loan, advance or extension of credit to, or contribution
to the capital of, any other Person, excluding advances to employees
in the ordinary course of business for business expenses,
(c) any Guaranty of the obligations of any other Person,
(d) any other investment (other than the Acquisition of a Business
Unit) in any other Person, and
(e) any commitment or option to make any of the investments
listed in clauses (a) through (d) above if, in the case of an
option, the consideration therefor exceeds $100.
"IRB Lease" means any lease of an IRB Project.
"IRB Letter of Credit;" means one or more letters of credit
issued by NationsBank, in its discretion and pursuant to documentation
satisfactory in form and substance to it for the account of one or more
Borrowers to support Industrial Revenue Bonds issued to finance an IRB
Project.
"IRB Letter of Credit Obligations" means, at any time, the sum
of (a) the reimbursement obligations of the Borrowers with respect to
drawings under all IRB Letters of Credit at such time, plus, (b) the
aggregate of the maximum amount that is available for drawing at the
time under all IRB Letters of Credit.
"IRB Project" means one or more facilities or improvements to
facilities of one or more Borrowers financed with part or all of the
proceeds of one or more issues of industrial revenue bonds.
"IRB Obligations" means the Indebtedness or other obligations
of one or more Borrowers with respect to the construction and financing
of the IRB Projects, including, without limitation, Indebtedness under
related industrial revenue bonds, in amounts approved by the Required
Lenders in their discretion
"IRS" means the Internal Revenue Service.
"Issuing Bank" means NationsBank or any other banking
institution who subsequently becomes an issuer of a Letter of Credit
hereunder.
"Lender" means at any time any financial institution party to
this Agreement in such capacity at such time, including any such Person
becoming a party hereto pursuant to the provisions of Article 13, and
its successors and assigns, and "Lenders" means at any time all of the
financial institutions party to this Agreement in such capacity at such
time, including any such Persons becoming parties hereto pursuant to the
provisions of Article 13, and their successors and assigns.
"Letter of Credit" means any Letter of Credit issued by an
Issuing Bank for the account of a Borrower pursuant to Section 2.6,
excluding, however, any IRB Letter of Credit.
"Letter of Credit Amount" means, with respect to any Letter of
Credit, the aggregate maximum amount at any time available for drawing
under such Letter of Credit.
"Letter of Credit Documents" means the documents, in form and
substance satisfactory to the Issuing Bank, required by the Issuing Bank
to be executed by one or more Borrowers in connection with the issuance
of a Letter of Credit, including, without limitation, a letter of credit
application and Reimbursement Agreement.
"Letter of Credit Facility" means a subfacility of the
Revolving Credit Facility in the amount of $3,000,000.
"Letter of Credit Obligations" means, at any time, the sum of
(a) the Reimbursement Obligations of the Borrowers at such time, plus
(b) the aggregate Letter of Credit Amount of Letters of Credit
outstanding at such time, plus (c) the aggregate Letter of Credit Amount
of Letters of Credit the issuance of which has been authorized by the
Agent and the Issuing Bank pursuant to Section 2.6 but that have not yet
been issued, in each case as determined by the Agent.
"Letter of Credit Reserve" means, at any time as to any
Borrower, the aggregate Letter of Credit Obligations at such time, other
than Letter of Credit Obligations that are fully secured by cash
collateral.
"Leverage Ratio" means, at any time, the ratio of consolidated
Liabilities of Xxxxxxx and its Consolidated Subsidiaries at such time
minus consolidated Subordinated Indebtedness at such time to Tangible
Net Worth at such time plus consolidated Subordinated Indebtedness at
such time.
"Liabilities" of any Person means all items (except for items
of capital stock, additional paid-in capital or retained earnings, or of
general contingency or deferred tax reserves) which in accordance with
GAAP would be included in determining total liabilities as shown on the
liability side of a balance sheet of such Person as at the date as of
which Liabilities are to be determined.
"Lien" as applied to the property of any Person means:
(a) any mortgage, deed to secure debt, deed of trust, lien,
pledge, charge, lease constituting a Capitalized Lease
Obligation, conditional sale or other title retention agreement,
or other security interest, security title or encumbrance of any
kind in respect of any property of such Person, or upon the income
or profits therefrom,
(b) any arrangement, express or implied, under which any property
of such Person is transferred, sequestered or otherwise identified for
the purpose of subjecting the same to the payment of Indebtedness or
performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person,
(c) any Indebtedness which is unpaid more than 30 days after the
same shall have become due and payable and which if unpaid might by law
(including, but not limited to, bankruptcy and insolvency laws), or
otherwise, be given any priority whatsoever over the claims of general
unsecured creditors of such Person, and
(d) the filing of, or any agreement to give, any financing
statement under the Uniform Commercial Code or its equivalent in any
jurisdiction, excluding informational financing statements relating to
property leased by a Borrower.
"Limited Chassis Liens" means Purchase Money Liens in favor of
a party who has executed an Intercreditor Agreement with the Agent on
terms and conditions satisfactory to the Agent in its reasonable
discretion, which Liens are limited to Chassis and the proceeds thereof.
"Loan" means any Revolving Credit Loan or a Term Loan, as well
as all such loans collectively, as the context requires.
"Loan Account" and "Loan Accounts" shall have the meanings
ascribed thereto in Section 4.5.
"Loan Documents" means collectively this Agreement, the Notes,
the Security Documents and each other instrument, agreement or document
executed by a Borrower, a Guarantor or any Affiliate or Subsidiary of a
Borrower or a Guarantor in connection with this Agreement, whether prior
to, on or after the Effective Date, and each other instrument, agreement
or docmnent referred to herein or contemplated hereby.
"Lockbox" means each U.S. Post Office Box specified in a
Lockbox Agreement.
"Lockbox Agreement" means each agreement between a Borrower
and a Clearing Bank concerning the establishment of a Lockbox for the
collection of Receivables.
"Long-Term Liabilities" means, with respect to any Person, the
aggregate amount of all Liabilities of such Person other than Current
Liabilities.
"Make-Whole Amount" shall have the meaning set forth in
Section 4.7(b).
"Margin Stock" means margin stock as defined in Section 221.l(h)
of Regulation U, as the same may be amended or supplemented from
time to time.
"Materially Adverse Effect" means, with respect to any Person,
a materially adverse effect upon such Person's business, assets,
liabilities, condition (financial or otherwise), results of operations
or business prospects, and in addition with respect to any Borrower,
means a materially adverse effect upon the Borrowers' ability to perform
their obligations hereunder or under any other Loan Document to which
any Borrower is a party or upon the enforceability of such obligations
against such Borrowers taken as a whole.
"Money Borrowed" means, as applied to Indebtedness,
(a) Indebtedness for money borrowed,
(b) Indebtedness, whether or not in any such case the same was
for money borrrowed,
(i) represented by notes payable and drafts accepted that
represent extensions of credit,
(ii) constituting obligations evidenced by bonds, debentures,
notes or similar instruments, or
(iii) upon which interest charges are customarily paid or
that was issued or assumed as full or partial payment for property
(other than trade credit that is incurred in the ordinary course of
business),
(c) Indebtedness that constitutes a Capitalized Lease Obligation,
and
(d) Indebtedness that is such by virtue of clause (c) of the
definition thereof, but only to the extent that the obligations
Guaranteed are obligations that would constitute Indebtedness for Money
Borrowed.
"Mortgages" means and includes any and all of the mortgages,
deeds of trust, deeds to secure debt, assignments and other instruments
executed and delivered by one or more Borrowers to or for the benefit of
the Agent by which the Agent on behalf of the Lenders acquires a Lien on
certain of the Borrowers' Real Estate or a collateral assignment of any
Borrower's interest under leases of Real Estate.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) ERISA to 'which a Borrower or a Related Company is
required to contribute or has contributed within the immediately
preceding six (6) years.
"NationsBank" means NationsBank, N.A., a national banking
association.
"Net Amount" means, with respect to any Investments made by
any Person, the gross amount of all such Investments minus the aggregate
amount of all cash received and the fair value, at the time of receipt
by such Person, of all property received as payments of principal or
premiums, returns of capital, liquidating dividends or distributions,
proceeds of sale or other dispositions with respect to such Investments.
"Net Income" means, as applied to any Person, the net income
(or net loss) of such Person for the period in question alter giving
effect to deduction of or provision for all operating expenses, all
taxes and reserves (including reserves for deferred taxes) and all other
proper deductions, all determined in accordance with GAAP, provided that
there shall be excluded:
(a) the net income (or net loss) of any Person accrued prior to the
date it becomes a Subsidiary of, or is merged into or consolidated with,
the Person whose Net Income is being determined or a Subsidiary of such
Person,
(b) the net income (or net loss) of any Person in which the
Person whose Net Income is being determined or any Subsidiary of
such Person has an ownership interest, except, in the case of net
income, to the extent that any such income has actually been
received-by such Person or such Subsidiary in the form of cash
dividends or similar distributions,
(c) any restoration of any contingency reserve, except to
the extent that provision for such reserve was made out of income
during such period,
(d) any net gains or losses on the sale or other disposition, not
in the ordinary course of business, of Investments, Business Units and
other capital assets, provided that there shall also be excluded any
related charges for taxes thereon,
(e) any net gain arising from the collection of the proceeds of any
insurance policy,
(f) any write-up of any asset, and
(g) any other extraordinary item.
"Net Outstandings" of any Lender means, at any time, the sum
of (a) all amounts paid by such Lender (other than pursuant to Section
14.7) to the Agent in respect of Revolving Credit Loans or otherwise
under this Agreement, minus (b) all amounts paid by the Agent to such
Lender which are received by the Agent and which, pursuant to this
Agreement, are paid over to such Lender for application in reduction of
the outstanding principal balance of the Revolving Credit Loans.
"Net Worth" means, with respect to any Person, such person's
total shareholders' equity (including capital stock, additional paid-in
capital and retained earnings, after deducting treasury stock) which
would appear as such on a balance sheet of such Person prepared in
accordance with GAAP.
"Non-Cash Charges" means all non-cash expenses, losses and
deductions other than depreciation and amortization deducted by Xxxxxxx
and its Consolidated Subsidiaries in determining their consolidated Net
Income.
"Non-Ratable Loan" means a Revolving Credit Loan made by
NationsBank in accordance with the provisions of Section 4.8(c).
"Note" means any of the Revolving Credit Notes or Term Notes,
and "Notes" means more than one such Note.
"Notice of Borrowing" has the meaning specified in
Section 2.2(a)(i)(A).
"Notice of Conversion or Continuation" has the meaning specified in
Section 4.19.
"Operating Lease" means any lease (other than a lease
constituting a Capitalized Lease) of real or personal property.
"Original Agreement" means the agreement so defined in the
Preliminary Statement.
"Original Effective Date" means April 21, 1995.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor agency.
"Patent Assignment" means each Assignment for Security-
Patents, dated on or about the Effective Date, made by a Borrower to the
Agent for the benefit of the Lenders, as the same may be amended,
modified or supplemented from time to time.
"Patents" means and includes, as to any Person, all of such
Person's then-owned or existing and future acquired or arising right,
title and interest in and to
(a) any and all patents and patent applications,
(b) inventions and improvements described and claimed therein,
(c) reissues, divisions, continuations, renewals, extensions and
continuations in-part thereof,
(d) income, royalties, damages, claims and payments now or
hereafter due and/or payable under and with respect thereto, including,
without limitation, damages and payments for past and future
infringements thereof;
(e) rights to xxx for past, present and future infringements
thereof, and
(f) all rights corresponding to any of the foregoing throughout
the world.
"Permitted Investments" means Investments of a Borrower in
(a) Cash Equivalents,
(b) sales of Inventory on credit in the ordinary course of business,
(c) shares of capital stock, evidence of Indebtedness or other
security acquired by the Borrowers (or any of them) in consideration for
or as evidence of past-due or restructured Receivables in an aggregate
face amount of such Receivables at any time not to exceed $1,000,000,
(d) loans to officers, directors, shareholders, Subsidiaries and
Affiliates-not to exceed $50,000 in aggregate outstanding principal
amount at any time as to all Borrowers, provided that any loan or
advance made by a Borrower to any other Borrower shall be permitted
without limitation to the amount thereof,
(e) Guaranties permitted pursuant to Section 11.3,
(f) those items described on Schedule 1.1B - Permitted Investments,
(g) other Borrowers,
(h) leases of finished goods Inventory to customers entered into
in the ordinary course of business, provided that the Security Interest
is duly perfected therein, and
(i) shares of capital stock of publicly-traded competitors of
the Borrowers in an amount not to exceed $50,000 in the aggregate.
"Permitted Liens" means:
(a) Liens securing taxes, assessments and other governmental
charges or levies (excluding any Lien imposed pursuant to any of the
provisions of ERISA) or the claims of materialmen, mechanics, carriers,
warehousemen or landlords for labor, materials, supplies or rentals
incurred in the ordinary course of business, but (i) in all cases only
if payment shall not at the time be required to be made in accordance
with Section 9.6, and (ii) in the case of warehousemen or landlords,
only if such Liens are junior to the Security Interest in any of the
Collateral,
(b) Minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for fights-of-way, utilities and other
similar purposes, or zoning or other restrictions as to the use of real
properties which are necessary for the conduct of the' activities of the
applicable Borrower or which customarily exist on properties of
corporations engaged in similar activities and similarly situated and
which do not in any event materially impair their use in the operation
of the business of the applicable Borrower,
(c) Liens securing Permitted Purchase Money Indebtedness,
(d) Judgment Liens to the extent that the underlying judgement does
not constitute an Event of Default under Section 12.1(j),
(e) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security, or to secure the
performance of tenders, statutory obligations, bids, leases,
government contracts, performance, surety and return-of-money bonds
and other similar obligations (exclusive of obligations for
the payment of Indebtedness for Money Borrowed),
(f) Any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any Lien
referred to in the foregoing paragraphs (a) through (e) inclusive,
provided, however, that the principal amount of Indebtedness secured
thereby shall not exceed the principal amount of Indebtedness so secured
at the time of such extension, renewal or replacement, and that such
extension, renewal or replacement shall be limited to the property which
was subject to the Lien so extended, renewed or replaced,
(g) Liens shown on Schedule 1.1 C - Permitted Liens, and
(h) Liens of the Agent, for the benefit of the Lenders, arising
under this Agreement and the other Loan Documents.
"Permitted Purchase Money Indebtedness" means Purchase Money
Indebtedness (i) secured only by Purchase Money Liens and Capitalized
Lease Obligations, incurred by a Borrower after the Agreement Date, up
to an aggregate amount outstanding at any time equal to $250,000, or
(ii) secured only by Limited Chassis Liens or (iii) consisting of IRB
Obligations.
"Person" means an individual, corporation, partnership,
association, trust or unincorporated organization, or a government or
any agency or political subdivision thereof.
"Plan" means, as to any Person, any employee benefit plan as
defined in Section 3(3) of ERISA in respect of which such Person or any
Related Company is, or within the immediately preceding six years was,
an "employer" as defined in Section 3(5) of ERIS.
"Prime Rate" means, on any day, the interest rate per annum
equal to the rate of interest publicly announced by the Agent at its
head office in Atlanta, Georgia as its "prime" rate, as in effect on the
last Business Day of the calendar month immediately preceding the month
in which such day falls. The Agent lends at rates above and below the
Prime Rate.
"Prime Rate Loan" means a Prime Rate Revolving Credit Loan or
Prime Rate Term Loan.
"Prime Rate Revolving Credit Loan" means a Revolving Credit
Loan which bears interest determined with reference to the Prime Rate.
"Prime Rate Term Loan" means a Term Loan which bears interest
determined with reference to the Prime Rate.
"Proprietary Rights" means and includes, as to any Person, all
of such Person's then-owned or existing and future arising or acquired:
Patents, Copyrights, Trademarks, applications therefor and licenses in
respect thereof including without limitation, those Proprietary Rights
of the Borrowers set forth on Schedule 6.1(bb) hereto, and all other
rights under any of the foregoing, all extensions, renewals, reissues,
divisions, continuations, and continuations-in-part of any of the
foregoing, and all rights to xxx for past, present and future
infringement of any of the foregoing.
"Purchase Money Indebtedness" means Indebtedness created or
assumed to finance the payment of all or any part of the purchase price
(not in excess of the fair market value thereof) of any tangible asset
(other than Inventory) and incurred at the time of or within 10 days
prior to or after the acquisition of such tangible asset.
"Purchase Money Lien" means any Lien securing Purchase Money
Indebtedness, but only if such Lien shall at all times be confined
solely to the tangible asset (other than Inventory) the purchase price
of which was financed through the incurfence of the Purchase Money
Indebtedness secured by such Lien.
"Quartedy Compliance Certificate" means a certificate in
substantially the form of Exhibit G to the effect set forth in Section
10.3.
"Raw Materials Sublimit" means the sum of $5,000,000.
"Real Estate" means all of each Borrower's now or hereafter
owned or leased estates in real property, including, without limitation,
all fees, leaseholds and future interests, together with all of such
Borrower's now or hereafter owned or leased interests in the
improvements and emblements thereon, the fixtures attached thereto and
the easements appurtenant thereto, including, without limitation the
real property described on Schedule 6.1(w).
"Rebate Receivables" means Receivables owing to a Borrower
from a dealer for an Acceptable Chassis Manufacturer representing such
Borrower's proportionate share of rebates payable to such dealer by any
such Acceptable Chassis Manufacturer by reason of the sale of motor
vehicle chassis to such Borrower.
"Receivables" means and includes, as to any Person, all of
such Person's then-owned or existing and future acquired or arising
(a) rights to the payment of money or other forms of consideration
of any kind (whether classified under the Uniform Commercial Code as
accounts, contract fights, chattel paper, general intangibles, or
otherwise) including, but not limited to, accounts receivable, letters
of credit and the fight to receive payment thereunder, chattel paper,
tax refunds, insurance proceeds, contract fights, notes, drafts,
instruments, documents, acceptances, and all other debts, obligations
and liabilities in whatever form from any Person,
(b) all guarantees, security and Liens for payment thereof;
(c) all goods, whether now owned or hereafter acquired, and
whether sold, delivered, undelivered, in transit or returned, which
may be represented by, or the sale or lease of which may have given
rise to, any such right to payment or other debt, obligation or
liability, and
(d) all cash and non-cash proceeds of any of the foregoing.
"Register" shah have the meaning set forth in Section 13.1(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System (or any successor), as the same may be
amended or supplemented from time to time.
"Reimbursement Agreement" means, with respect to a Letter of
Credit, such form of application therefor and form of reimbursement
agreement therefor (whether in-a single document or several documents)
as the Issuing Bank may employ in the ordinary course of business for
its own account, with such modifications thereto as may be agreed upon
by the Issuing Bank had the applicable Borrower, provided that such
application and agreement and any modifications thereto are not
inconsistent with the terms of this Agreement.
"Reimbursement Obligations" means the reimbursement or
repayment obligations of a Borrower to the Issuing Bank pursuant to
Section 2.6(b) or pursuant to a Reimbursement Agreement with respect to
amounts that have been drawn under Letters of Credit.
"Related Company" means, as to any Person, any (i) corporation
which is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the Internal Revenue Code) as such
Person; (ii) partnership or other trade or business (whether or not
incorporated)under common control (within the meaning of Section 414(c)
of the Internal Revenue Code) with such Person; or (iii) member of the
same affdiated service group (within the meaning of Section 414(m) of
the Internal Revenue Code) as such Person, any corporation described in
clause (i) above or any partnership, trade or business described in
clause (ii) above.
"Release" means release, spill, emission, leaking pumping,
injection, deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environment or into or out of any
property, including the movement of Contaminants through or in the air,
soil, surface water or groundwater.
"Remedial Action" means actions required to (i) clean up, remove,
treat or in any other way address Contaminants in the indoor or
outdoor environment; (ii) prevent the Release or threat of Release
or minimize the further Release of Contaminants so they do not migrate
or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment; or (iii) perform pre-remedial studies
and investigations and post-remedial monitoring and care.
"Reportable Event" has the meaning set forth in Section
4043(b) of ERISA, but shall not include a Reportable Event as to which
the provision for 30 days' notice to the PBGC is waived under applicable
regulations.
"Required Lenders" means, at any time, any combination of
Lenders whose Commitment Percentages at such time aggregate in excess of
51%.
"Restricted Payment" means (a) any dividend, distribution or
payment on or with respect to (i) any shares of a Borrower's capital
stock (other than dividends payable solely in shares of its capital
stock) or (ii) any partnership interest in a Borrower, excluding,
however, any such dividend, distribution or payment to a Borrower or
any Subsidiary of a Borrower, (b) any redemption or prepayment or other
retirement by a Borrower, prior to the stated maturity thereof or prior
to the due date of any regularly scheduled installment or amortization
payment with respect thereto, of any Indebtedness for Money Borrowed
or of any Indebtedness that is junior and subordinate to the Secured
Obligations, (c)the payment by a Borrower of the principal amount of or
interest on any Indebtedness (other than trade debt) owing to a
shareholder, partner or equity holder of a Borrower or to any Affiliate
of any such shareholder, partner or equity holder, which Affiliate is not
a Borrower, and (d) the payment of any management, consulting or similar
fee by a Borrower to any of its Affiliates other than a Borrower.
"Restricted Purchase" means any payment on account of the
purchase, redemption or other acquisition or retirement by a Person of
any (a) shares of such Person's capital stock (except shares acquired on
the conversion thereof into other shares of capital stock of such
Person) or (b) a partnership interest in such Person, if such Person is
a partnership.
"Revolving Credit Commitment" means, as to each Lender, the
amount set forth opposite such Lender's name on the signature pages
hereof under the caption "Commitment Amount - Rev. Loan" (or, if such
Lender has entered into one or more Assignmments and Acceptances,
set forth for such Lender and such Borrower in the Register maintained
by the Agent pursuant to Section 13.1(d)), representing such
Lender's aggregate obligation, upon and subject to the terms and
conditions of this Agreement, to make Revolving Credit Loans to each
of the Borrowers.
"Revolving Credit Facility' means, at any time, the principal
amount of $17,000,000.
"Revolving Credit Loan" means Loans made to a Borrower pursuant to
Sections 2.1 and 2.2.
"Revolving Credit Note" means each Revolving
Credit Note made by the Borrowers, jointly and severally,
payable to the order of a Lender issued in substitution for
such Notes issued under the Original Agreement evidencing
the obligation of the Borrowers to pay the aggregate unpaid
principal amount of the Revolving Credit Loan made to them
by such Lender (and any promissory note or notes that may be
issued from time to time in substitution, renewal,
extension, replacement or exchange therefor, whether payable
to such Lender or to a different Lender in connection with a
Person becoming a Lender after the Effective Date or
otherwise) substantially in the form of Exhibit A hereto,
with all blanks properly completed, either as originally
executed or as the same may from time to time be
supplemented, modified, amended, renewed, extended or
refinanced.
"Schedule of Inventory" means a schedule
delivered by the Borrowers to the Agent pursuant to the
provisions of Section 8.12(b).
"Schedule of Receivables" means a schedule
delivered by the Borrowers to the Agent pursuant to the
provisions of Section 8.12(a).
"Secured Obligation" means, in each case whether now in
existence or hereafter arising,
(a) the principal of, and interest and premium, if
any, on, the Loans,
(b) all Reimbursement Obligations and other obligations
of the Borrowers (or any of them) relating to Letters of
Credit,
(c) all IRB Letter of Credit Obligations,
(d) all obligations to the Agent, a Lender or any
Affiliate of the Agent or any Lender under or relating
to Interest Rate Protection Agreements, and
(e) all indebtedness, liabilities, obligations,
covenants and duties of the Borrowers, or any of them,
to the Agent or to the Lenders of every kind, nature
and description arising under or in respect of this
Agreement, the Notes or any of the other Loan
Documents, whether direct or indirect, absolute or
contingent, due or not due, contractual or tortious,
liquidated or unliquidated, and whether or not
evidenced by any note, and whether or not for the
payment of money, including without limitation, fees
required to be paid pursuant to Article 4 and expenses
required to be paid or reimbursed pursuant to Sections
15.2 and 15.14.
"Security Documents" means each of the following:
(a) the Financing Statements,
(b) the Mortgages,
(c) the Trust Agreement,
(d) the Trademark Assignment,
(e) the Patent Assignment,
(f) the Guaranty Agreement,
(g) the Guarantor Security Agreement, and
(h) this Agreement and each other writing executed
and delivered by a Borrower or any other Person
securing the Secured Obligations.
"Security Interest" means the Liens of the Agent, for the
benefit of itself as Agent and the Lenders, on and in the
Collateral and the Guarantor Collateral effected hereby or
by any of the Security Documents or pursuant to the terms
hereof or thereof.
"Settlement Date" means each Business Day after
the Effective Date selected by the Agent in its sole
discretion subject to and in accordmace with the provisions
of Section 4.8(e) as of which a Settlement Report is
delivered by the Agent and on which settlement is to be made
among the Lenders in accordance with the provisions of
Section 4.8.
"Settlement Report" means each report, substantially in the
form attached hereto as Exhibit F, prepared by the Agent and
delivered to each Lender and setting forth, among other
things, as of the Settlement Date indicated thereon and as
of the next preceding Settlement Date, the aggregate
principal balance of all Revolving Credit Loans outstanding,
each Lender's Commitment Percentage thereof, each Lenders
Net Outstandings and all Non-Ratable Loans
made, and all payments of principal, interest and fees
received by the Agent from the Borrowers during the period
beginning on such next preceding Settlement Date and ending
on such Settlement Date.
"Subordinated Indebtedness" means any Indebtedness
for Money Borrowed, which is subordinated to the Secured
Obligations on terms and conditions acceptable to the
Required Lenders in their sole discretion.
"Subsidiary"
(a) when used to determine the relationship of a Person
to another Person, means a Person of which an aggregate of
50% or more of the stock of any class or classes or 50% or
more of other ownership interests is owned of record or
beneficially by such other Person, or by one or more
Subsidiaries of such other Person, or by such other Person
and one or more Subsidiaries of such Person,
(i) if the holders of such stock, or other ownership
interests, (A) are ordinarily, in the absence of
contingencies, entitled to vote for the election of a
majority of the directors (or other individuals performing
similar functions) of such Person, even though the right so
to vote has been suspended by the happening of such a
contingency, or (B) are entitled, as such holders, to vote
for the election of a majority of the directors (or
individuals performing similar functions) of such Person,
whether or not the right so to vote exists by reason of the
happening of a contingency, or
(ii) in the case of such other ownership interests, if
such ownership interests constitute a majority voting
interest, and
(b) when used without other designation, means a Subsidiary
of a Borrower.
"Tangible Net Worth" means, at any time, as
applied to the Borrowers, the consolidated Net Worth of
Xxxxxxx and its Consolidated Subsidiaries at the time in
question, after excluding therefrom all Receivables due from
officers, directors, shareholders and Affiliates of the
Borrowers and the amount of all intangible items reflected
therein, including without limitation, all unamortized debt
discount and expense, unamortized research and development
expense, unamortized deferred charges, goodwill, patents,
trademarks, service marks, trade names, copyrights, non-
compete agreements and similar covenants, unamortized excess
cost of investment in non-Consolidated Subsidiaries over
equity at dates of acquisition and all similar items which
should properly be treated as intangibles in accordance with
GAAP.
"Term Loan" means either a Term Loan A or a Term
Loan B, and "Term Loans" means all such Loans and refers to
both Eurodollar Rate Term Loans and Prime Rate Term Loans.
"Term Loan A" means each Loan made to a Borrower
pursuant to Section 3.1(a) ofthe Original Agreement, as well
as all such Loans collectively, as the context requires.
"Term Loan A lnstallment" means as to Xxxxxxx,
$4,166.66, as to Bus, $5,000.00, as to WCI, $37,500.00 and
as to Capacity, $2,500.00.
"Term Loan B" means the aggregate of the Term Loan
B Advances :made to the Borrowers pursuant to Section
3.1(b).
"Term Loan B Advance" means any advance of a Term
Loan B occurring after the Effective Date pursuant to the
provisions of Section 3.1(b).
"Term Loan B Advance Date" means the date on which
a Term Loan B Advance is made pursuant to the provisions of
Sections 3.1 and 3.2.
"Term Loan B Commitment" means, as to each Lender,
the amount equal to such Lender's Commitment Percentage of
the Term Loan B Facility representing such Lender's
aggregate obligation, upon and subject to the terms and
conditions of this Agreement, to make Term Loans B to the
Borrowers on the Effective Date.
"Term Loan B Facility" means a principal amount equal to
$2,000,000.
"Term Loan Commitments" means the Term Loan B Commitments.
"Term Loan Termination Date" means May 31, 2001.
"Term Note" means any of the Term Notes A or the
Term Notes B and "Term Notes" means more than one such Note.
"Term Note A" means, any of the promissory notes
made by a Borrower payable to the order of a Lender
evidencing the obligations of such Borrower to pay the
aggregate unpaid amount of the Term Loan A made by such
Lender to such Borrower (and any promi.qsory note or notes
that may be issued from time to time in substitution,
renewal, extension, replacement or exchange therefor whether
payable to the same or different Lender, whether issued in
connection with a Person becoming a Lender after the
Effective Date or otherwise), substantially in the form of
Exhibit 13-1 hereto, with all blanks properly completed,
either as originally executed or as the same ma.y be from
time to time be supplemented, modified, amended, renewed,
extended or refinanced, and "Term Notes A" means more than
one such Term Note A.
"Term Note B" means any of the promissory notes
made by the Borrowers, jointly and severally, payable to the
order of a Lender evidencing the obligations of such
Borrowers to pay the aggregate unpaid amount of the Term
Loan B made by such Lender to the Borrowers (and any
promissory note or notes that may be issued from time to
time in substitution, renewal, extension, replacement or
exchange therefor whether payable to the same or different
Lender, whether issued in connection with a Person becoming
a Lender at, er the Effective Date or otherwise),
substantially in the form of Exhibit 13-2 hereto, with all
blanks properly completed, either as originally executed or
as the same may be from time to time be supplemented,
modified, amended, renewed, extended or refinanced, and
"Term Notes B" means more than one such Term Note B.
"Termination Date" means May 31, 2001, such
earlier date as all Secured Obligations shall have been
irrevocably paid in full and the Revolving Credit Facility.
shall have been terminated, or such later date as to which
the same may be extended pursuant to the provisions of
Section 2.5.
"Termination Event" means
(a) a Reportable Event, or
(b) the filing of a notice of intent to terminate a
Plan or the treatment of a Plan amendment as a termination
under Section 4041 of ERISA, or
(c) the institution of proceedings to terminate a Plan
by the PBGC under Section 4042 of ERISA, or the appointment
of a trustee to administer any Plan.
"Total Commitment" means at any time the sum of
the Revolving Credit Commitments of all Lenders at such
time.
"Trademark Assignment" means each Assignment for
Security - Trademarks, dated on or about the Effective Date,
made by a Borrower to the Agent for the benefit of the
Lenders.
"Trademarks" means and includes, as to any Person,
all of such Person's then-owned or existing and future
acquired or arising right, title and interest in and to
(a) trademarks (including service marks), trade names
and trade styles and the registrations and applications for
registration thereof and the goodwill of the business
symbolized by the trademarks,
(b)licenses of the foregoing, whether as licensee or
licensor,
(c) renewals thereof,
(d) income, royalties, damages and payments now or
hereafter due and/or payable with respect thereto, including,
without limitation, damages, claims and payments for past
and future infringements thereof,
(e) rights to xxx for past, present and future
infringements thereof, including the right to settle suits
involving claims and demands for royalties owing, and
(f) all rights corresponding to any of the
foregoing throughout the world.
"Trust Agreement" means collectively the Trust
Agreements, dated on or about the Effective Date, among a
Borrower, the Agent and the named trustee, in form and
substance satisfactory to the Agent, providing for the
holding by such trustee on behalf of the Lender of title
documents relating to Eligible Chassis Inventory and
periodic reporting relating thereto.
"Trustee" means the person serving as Trustee under the
Trust Agreement from time to time.
"Unfunded Vested Accrued Benefit.q" means with
respect to any Plan at any time, the amount (if any) by
which
(a) the present value of all vested nonforfeitable
benefits under, such Plan exceeds
(b) the fair market value of all Plan assets allocable
to such benefits, all determined as of the then most recent
valuation date for such Plan.
"Uniform Commercial Code" means the Uniform
Commercial Code as in effect from time to time in the State
of Georgia.
"Used Vehicle Sublimit" means the sum of $750,000.
"Valuable Transfer" as to any Borrower, means and
shall have been deemed to have occurred if proceeds of any
Loan, Letter of Credit or other extension of credit are
used, directly or indirectly, to (i) make a loan, advance or
capital contribution to such Borrower, (ii) acquire from
such Borrower debt securities or other obligations of such
Borrower, (iii) acquire property, any interest in which is
transferred to such Borrower (but only to the extent of the
economic benefit to such Borrower of the interest so
transferred), (iv) purchase equity securities of such
Borrower, or (v) otherwise confer, directly or indirectly,
an economic benefit on such Borrower (but only to the extent
of such benefit).
"WCI" means Wheeled Coach Industries, Inc., a Florida corporation.
"Wholly-Owned Subsidiary" when used to determine
the relationship of a Subsidiary to a Person means a
Subsidiary all of the issued and outstanding shares (other
than directors' qualifying shares) of the capital stock of
which shall at the time be owned by such Person or one or
more of such Person's Wholly-Owned Subsidiaries or by such
Person and one or more of such Person's Wholly-Owned
Subsidiaries.
"Year 2000 Complaint" means, as to any computer
application used by the Borrowers or any Subsidiary of
Borrower, or any supplier, vendor or customer of the
Borrowers or any of their Subsidiaries, that such computer
application will not be negatively impacted by the Year 2000
Problem and that such computer application is reasonably
expected on a timely basis to be able to properly recognize
and perform data-sensitive functions for all dates before
and after January 1, 2000.
"Year 2000 Problem" means the risk that computer
applications used by the Borrowers or any of their
Subsidiaries, or any supplier, vendor or customer of the
Borrowers or any of their Subsidiaries with which a
Borrower's or such Subsidiaries' data processing systems
interface electronically may be unable to properly recocnize
and perform date-sensitive functions involving certain dates
prior to any and any date after December 31, 1999.
SECTION 1.2 General.
(a) All terms of an accounting nature not specifically
defined herein shall have the meaning ascribed thereto by
GAAP.
(b) The terms accounts, chattel paper, contract rights,
documents, equipment, instruments, general intangibles
and inventory, as and when used in this Agreement or the
Security Documents, shall have the meshings given those
terms in the Uniform Commercial Code.
(c) Unless otherwise specified, a reference in this
Agreement to a particular article, section or subsection is
a reference to that article, section or subsection of this
Agreement, and the words "hereof;" "herein," "hereunder" and
words of similar import, when used in this Agreement, refer
to this Agreement as a whole and not to any particular
provision, section or subsection of this Agreement.
(d) Wherever from the context it appears appropriate,
each term stated in either the singular or plural shall
include the singular and plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter.
(e) Words denoting individuals include corporations and vice
versa.
(f) References to any legislation or statute or code,
or to any provisions of any legislation or statute or code,
shall include any modification or reenactment of; or any
legislative, statutory or code provision substituted for,
such legislation, statute or code or provision thereof.
(g) References to any document or agreement (including
this Agreement) shall include references to such document or
agreement as amended, novated, supplemented, modified or
replaced from time to time, so long as and to the extent
that such amendment, novation, supplement, modification or
replacement is either not prohibited by the terms of this
Agreement or is consented to by the Required Lenders and the
Agent.
(h) Except as specifically restricted, references to
any Person include its successors or permitted substitutes
and assigns.
(i) All references herein to a time- of day are, unless
otherwise specified, references to such time of day in
Atlanta, Georgia.
ARTICLE 2.
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Leans. Upon the terms and
subject to the conditions of, and in reliance upon the
representations and warranties made under, this Agreement,
each Lender agrees, severally, but not jointly, to make
Revolving Credit Loans to the Borrowers from time to time
from the Effective Date to but not including the Termination
Date, as requested or deemed requested by the Borrowers'
Representative in accordance with the terms of Section 2.2,
in amounts equal to such Lender's Commitment Percentage of
each Revolving Credit Loan requested or deemed requested
hereunder by the Borrowers up to an aggregate principal
amount at any one time outstanding equal to such Lender's
Commitment Percentage of the lesser of (i) the Revolving
Credit Facility and (ii) the Borrowing Base, minus in the
case of each (i) and (ii) the Letter of Credit Reserve;
provided, however, that the aggregate principal amount of
all outstanding Revolving Credit Loans by all Lenders (after
giving effect to the Loans requested) shall not at any time
exceed the lesser of (iii) the Revolving Credit Facility and
(iv) the Borrowing Base, minus in the case of each (iii) and
(iv) the Letter of Credit Reserve. It is expressly
understood and agreed that the Lenders may and at present
intend to use the foregoing limits applicable to the
Borrowers as a maximum ceiling on Revolving Credit Loans to
such Borrowers; provided, however, that should the Revolving
Credit Loans exceed the ceiling so determined or any other
limitation set forth in this Agreement, such Revolving
Credit Loans shall nevertheless constitute Secured
Obligations and, as such, shall be entitled to all benefits
thereof and security therefor. The principal amount of any
Revolving Credit Loan which is repaid may be reborrowed by
the Borrowers, subject to the terms and conditions of this
Agreement, in accordance with the terms of this Section 2.1.
The Agent's and each Lender's books and records reflecting
the date and the amount of each Revolving Credit Loan and
each repayment of principal thereof shall constitute prima
facie evidence of the accuracy of the information contained
therein, subject to the provisions of Section 4.5. On the
Effective Date all Revolving Credit Loans outstanding under
the Original Agreement shall remain outstanding as Revolving
Credit Loans under this Agreement; provided that the
outstanding Revolving Credit Notes under the Original
Agreement shall be deemed to be exchanged for the Revolving
Credit Notes issued under this Agreement.
SECTION 2.2 Manner of Borrowing Revolving Credit
Loans. Borrowings under the Revolving Credit Facility shall
be made as follows:
(a) Requests for Borrowing. A request for a borrowing
shall be made, or shall be deemed to be made, in the
following manner:
(i) Prime Rate Revolving Credit Loans. A request for a
Borrowing of Prime Rate Loans under the Revolving Credit
Facility shall be made, or shall be deemed to be made, in
the following manner:
(A) the Borrowers, through the Borrowers'
Representative, shall give the Agent at least two Business
Days' prior written notice of the Effective Date, which
notice shall be irrevocable, and, as to subsequent Prime
Rate Revolving Credit Loans, the Borrowers may, through the
Borrowers' Representative, give the Agent notice of their
intention to borrow by giving telephonic notice (each a
"Notice of Borrowing") which notice shall be irrevocable,
before 11:30 a.m. on the proposed borrowing date, specifying
the proposed amount of the requested Prime Rate Revolving
Credit Loan to each Borrower and the proposed borrowing
date,
(B) whenever a check or other item is presented to a
Disbursing Bank for payment against a Controlled
Disbursement Account (if such an account has been
established) in an amount greater than the then available
balance in such account, such Disbursing Bank shall, and is
hereby irrevocably authorized by the Borrowers to, give the
Agent notice thereof, which notice shall be deemed to be a
request for one or more Prime Rate Revolving Credit Loans to
one or more Borrowers on the date of such notice in an
aggregate amount equal to the excess of such check or other
item over such available balance,
(C) unless payment is otherwise made by the Borrowers,
the becoming due of any amount required to be paid under
this Agreement or any of the Notes (including without
limitation, the Term Notes) as interest or principal shall
be deemed to be a request for one or more Prime Rate
Revolving Credit Loans from one or more Borrowers on the due
date in an aggregate amount equal to the amount required to
pay such interest or principal,
(D) unless payment is otherwise made by the Borrowers,
the becoming due of any other Secured Obligation shall be
deemed to be a request for one or more Prime Rate Revolving
Credit Loans to one or more Borrowers on the due date in an
aggregate amount equal to the amount then so due, and such
request shall be irrevocable, and
(E) the receipt by the Agent of notification from an
Issuing Bank that a drawing has been made under a Letter of
Credit and the Borrowers have failed to reimburse the
Issuing Bank therefor, shall be deemed to be a request for
one or more Prime Rate Revolving Credit Loans to one or more
Borrowers on the date such notification is received in an
aggregate amount equal to the amount so unreimbursed;
provided, that if any notice referred to in clause (A)
above is received after the applicable specified time, the
proposed borrowing will be postponed automatically to the
next Business Day.
(ii) Eurodollar Rate Revolving Credit Loans. The
Borrowers may request Eurodollar Rate Loans under the
Revolving Credit Facility by notifying the Agent (which
notice shall be irrevocable) not later than 11:30 a.m. on
the date three Business Days before the day on which the
requested Eurodollar Rate Revolving Credit Loans are to be
made, specifying the effective date and amount of such
Eurodollar Rate Revolving Credit Loans requested and the
duration of the applicable Interest Period.
(iii) Notification of Lenders. Unless the Agent has elected
periodic settlements pursuant to Section 4.8, the Agent
shall promptly notify the Lenders of any Notice of Borrowing
given or deemed given pursuant to this Seetion 2.2(a). Not
later than 1:30 p.m. on the proposed borrowing date, each
Lender will make available to the Agent, for the account of
the Borrowers, at the Agent's Office in funds immediately
available to the Agent, in an amount equal to such Lender's
Commitment Percentage of the Revolving Credit Loans to be
made on such borrowing date.
(b) Disbursement of Leans. The Borrowers hereby
irrevocably authorize the ,Agent to disburse the proceeds of
each borrowing requested, or deemed to be requested,
pursuant to this Section 2.2 as follows:
(i) the proceeds of each borrowing requested under
Sections 2.2(a)(i) or (ii) shall be disbursed by the Agent
in Dollars in immediately available funds, (A) in the case
of any borrowing on the Effective Date, in accordance with
the terms of the letter from the Borrowers to the Agent
referred to in Section 5.1(23) and (B) in the case of each
subsequent borrowing, by wire transfer to the account of the
Borrower designated in the applicable Notice of Borrowing,
(ii) the proceeds of each borrowing deemed requested
under Section 2.2(a)(iii) or (iv) shall be disbursed by the
Agent by way of direct payment of the relevant principal,
interest or other Secured Obligation, as the case may be,
and
(iii) the proceeds of each borrowing requested under
Section 2.2(a)(v) shall be disbursed by the Agent directly
to the Issuing Bank on behalf of the applicable Borrower.
SECTION 2.3 Repayment of Revolving Credit Loans.
The Revolving Credit Loans will be repaid as follows:
(a) The outstanding principal amount of all the
Revolving Credit Loam is due and payable, and shall be
repaid by the Borrowers in full, on or before the
Termination Date;
(b) If at any time the aggregate outstanding unpaid
principal amount of the Revolving Credit Loans exceeds
the lesser of the Revolving Credit Facility and the
Borrowing Base minus in each case the Letter of Credit
Reserve in effect at such time, the Borrowers shall repay
the Revolving Credit Loans in an amount sufficient to
reduce the aggregate unpaid principal amount of such
Revolving Credit Loam by an amount equal to such excess,
together with accrued and Unpaid interest on the amount
so repaid to the date of repayment;
(c) The Borrowers hereby instruct the Agent to repay the
Revolving Credit Loans outstanding on any day in an amount
equal to the amount received by the Agent on such day
pursuant to Section 8.1(b), such amounts to be applied as
the Agent shall determine in its discretion. Each such
payment by one Borrower of Revolving Credit Loans made for
the benefit of another Borrower shall be accounted for by
the Borrowers among themselves as intercompany loans, but
shall in no way affect the joint ami several liability of
the Borrowers hereunder for the payment and performance of
the Secured Obligations; and
(d) Each Eurodollar Rate Revolving Credit Loan is due and
payable on the last day of the Interest Period applicable
thereto, except to the extent converted or continued in
accordance with Sections 4.19 and 4.20 or Section 4.21(b),
and the Borrowers shall be deemed to have requested a Prime
Rate Loan to repay such amount.
Repayments pursuant to Section 2.3(b) or (c) shah be applied
first to the Prime Rate Revolving Credit Loans, and then to
the Eurodollar Rate Revolving Credit Loans.
SECTION 2.4 Revolving Credit Note. Each Lenders
Revolving Credit Loans to the Borrowers and the obligation
of the Borrowers to repay such Revolving Credit Loans shall
also be evidenced by a Revolving Credit Note payable to the
order of such Lender. Each Revolving Credit Note shall be
dated the Effective Date (or such later date on which such
Lender becomes a "Lender" hereunder) and be duly and validly
executed and delivered by the applicable Borrower.
SECTION 2.5 Extension of Revolving Credit
Facility. Upon the request of the Borrowers, the Lenders
may, in their sole discretion, effective as of the third and
any subsequent Anniversary, agree to extend the Revolving
Credit Facility for an additional period of one year. Each
such extension shall be effected by the delivery to the
Borrowers of a written notice to that effect by the Lenders,
not less than 30 days prior to the third Anniversary or such
subsequent Anniversary.
SECTION 2.6 Letters of Credit.
(a) Issuance of Letters of Credit Upon the request of the
Borrowers' Representative on behalf of one or more Borrowers
from time to time to the Agent and the Issuing Bank, the
Issuing Bank shall, in accordance with the provisions of
this Section 2.6, issue one or more Letters of Credit up to
an aggregate amount of Letter of Credit Obligations at any
time not to exceed the Letter of Credit Facility; provided,
that (i) all Letter of Credit Documents in connection with
each Letter of Credit shall be satisfactory to the Agent and
the Issuing Bank in their respective reasonable credit
judgment, (ii) no Letter of Credit shall be issued if, aider
the issuance thereof, the aggregate principal amount of
Revolving Credit Loans outstanding, plus the aggregate
Letter of Credit Obligations, would exceed the lesser of (A)
the Revolving Credit Facility and (B) the Borrowing Base
applicable to such Borrower, ('iii) each Letter of Credit
shall be a documentary letter of credit issued to or for the
benefit of a supplier of a Borrower in connection with the
purchase of Inventory or a standby letter of credit issued
to a beneficiary and for a purpose acceptable to the Agent
and the Issuing Bank in their respective reasonable credit
judgment, and (iv) no Letter of Credit shall have an initial
term longer than one year or an expiration date later than
the Termination Date. Promptly after the issuance of any
Letter of Credit, the Issuing Bank shall give the Agent
written or facsimile notice, or telephone notice confirmed
promptly thereafter in writing, of the issuance of such
Letter of Credit, and the Agent shall give each Lender
written or facsimile notice, or telephone notice confirmed
prompfiy thereafter in writing, of the issuance of such
Letter of Credit.
(b) Payment to Issuer. Notwithstanding any provisions
to the contrary in any Reimbursement Agreement, the
Borrowers agree, jointly and severally, without regard to
whether only one of' them is named as the account party
therein, to reimburse the Issuing Bank for any drawings
(whether partial or full) under each Letter of Credit issued
by the Issuing Bank and agree to pay to the Issuing Bank the
amount of all other Reimbursement Obligations and other
amounts payable to the Issuing Bank under or in connection
with such Letter of Credit immediately when due,
irrespective of any claim, set off, defense or other fight
which the Borrowers (or any of them) may have at any time
against the Issuing Bank or any other Person.
(c) Deemed Borrowing Request. The Borrowers
acknowledge and agree that if and to the extent a Borrower
shall fail to reimburse the Issuing Bank under any
Reimbursement Obligation, the Borrowers hereby irrevocably
request and direct the Agent, in accordance with the
provisions of Sections 2.1 and 2.2 (but regardless of
whether an overadvance results therefrom), to make payment
on their behalf of such Reimbursement Obligation and the
amount of any such payment by the Agent shall constitute a
Revolving Credit Loan made at the time of such payment.
(d) UCP Governs.. The issuance and negotiation of
Letters of Credit shall be governed by the Uniform Customs
and Practices for Documentary Credits (1993: Revision),
International Chamber of Commerce Publication No. 500, or
such other policies and practices as may be followed by the
Bank with respect to similar letters of credit at the time.
SECTION 2.7 Participations.
(a) Purchase of Participation. Immediately upon issuance
by the Issuing Bank of a Letter of Credit, each Lender shall
be deemed to have irrevocably and unconditionally purchased
and received without recourse or warranty, an undivided
interest and participation in such Letter of Credit, equal
to such Lender's Commitment Percentage of the face amount
thereof (including, without limitation, all obligations of
the Borrowers with respect thereto, other than certain
amounts owing solely to the Issuing Bank under Section.
4.2(d), and any security therefor or guaranty pertaining
thereto).
(b) Sharing of Letter of Credit Payments. In the event
that the Issuing Bank makes a payment under any Letter of
Credit and the Issuing Bank shall not have been repaid such
amount pursuant to Section 2.6, then the Issuing Bank shall
be deemed to have made a Non-Ratable Loan in the amount of
such payment, and notwithstanding the occurrence or
continuance of a Default or Event of Default at the time of
such payment, such Non-Ratable Loan shall be subject to the
provisions of Section 4.8(e)(ii) and the absolute
obligations of the Lenders to pay for their respective
participation interests therein.
(c) Sharing of Reimbursement Obligation Payments.
Whenever the Issuing Bank receives a payment from or on
behalf of the Borrowers on account of a Reimbursement
Obligation as to which the Agent has previously received for
the account of the Issuing Bank payment from a Lender
pursuant to this Section 2.7, the Issuing Bank shall
promptly pay to the Agent, for the benefit of such Lender,
such Lender's Commitment Percentage of the amount of such
payment from the applicable Borrower in Dollars. Each such
payment shall be made by the Issuing Bank on the Business
Day on which the Issuing Bank receives immediately available
funds pursuant to the immediately preceding sentence, if
received prior to 11:00 am (Atlanta time) on such Business
Day and otherwise on the next succeeding Business Day.
(d) Documentation Upon the request of any Lender, the
Agent shall furnish to such Lender copies of any Letter of
Credit, and Letter of Credit Documents and such other
documentation as may reasonably be requested by such Lender.
(e) Obligations Irrevocable The obligations of each
Lender to make payments to the Agent with respect to any
Letter of Credit and their participations therein pursuant
to the provisions of Section 2.7(a) hereof or otherwise and
the obligations of the Borrowers to make payments to the
Issuing Bank or to the Agent, for the account of Lenders,
shall be irrevocable, shall not be subject to any
qualification or exception whatsoever and shall be made in
accordance with the terms and conditions of this Agreement
(assuming, in the case of the obligations of the Lenders to
make such payments, that the Letter of Credit has been
issued in accordance with Section 2.6) including, without
limitation, any of the following circumstances:
(i) Any lack of validity or enforceability of this
Agreement or any of the other Loan Documents;
(ii) The existence of any claim, set-off, defense or
other fight which any Borrower may have at any time against
a beneficiary named in a Letter of Credit or any transferee
of any Letter of Credit (or any Person for whom any such
transferee may be acting), the Agent, any Lender, the
Issuing Bank or any other Person, whether in connection with
this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated tranactions (including
any underlying transactions between any Borrower or any
other Person and the beneficiary named in any Letter of
Credit);
(iii) Any draft, certificate or any other document
presented under the Letter of Credit upon which payment has
been made in good faith and according to its terms proving
to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate
in any respect;
(iv) The surrender or impairment of any Collateral or
any other security for the Secured Obligations or the
performance or observance of any of the terms of any of the
Loan Documents;
(v) The occurrence of any Default or Event of Default;
or
(vi) The Agent's failure to deliver to the Lenders the
notice issuance of such Letter of Credit.
SECTION 2.8 Indemnification, Exoneration.
(a) Indemnification. In addition to amounts payable as
elsewhere provided in this Agreement, the Borrowers agree
to protect, indemnify, pay and save the Lenders and the
Agent harmless from and against any and all claims,
demands, liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) which any
Lender or the Agent may incur or be subject to as a
consequence, directly or indirectly, of
(i) the issuance of any Letter of Credit, other than
as a result of its gross negligence or willful misconduct or
failure to comply with Applicable Law, as determined by a
court of competent jurisdiction, or
(ii) the failure of the Issuing Bank to honor a drawing
under any Letter of Credit as a result of any act or
omission, whether rightful or wrongful, of any present or
future de jure or de facto governmental authority (all such
acts or omissions being hereinafter referred to collectively
as "Government Acts").
(b) Assumption of Risk by the Borrowers. As among the
Borrowers, the Lenders and the Agent, the Borrowers assume
all risks of the acts and omissions of, or misuse of any of
the Letters of Credit by, the respective beneficiaries of
such Letters of Credit. In furtherance and not in
limitation of the foregoing, subject to the provisions of
the applications for the issuance of Letters of Credit, the
Lenders and the Agent shall not be responsible for:
(i) the form, validity, suffidency, accuracy,
genuineness or legal effect of any document submitted by any
Person in connection with the application for and issuance
of and presentation of drafts with respect to any of the
Letters of Credit, even if it should prove to be in any or
ali respects invalid, insufficient, inaccurate, fraudulent
or forged;
(ii) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or
assign any Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which
may prove to be invalid or ineffective for any reason;
(iii) errors, omissions, interruptions or delays in
transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in
cipher;
(iv) errors in interpretation of technical terms;
(v) any loss or delay in the transmission or otherwise
of any document required in order to make a drawing under
any Letter of Credit or of the.proceeds thereof,
(vi) the misapplication by the beneficiary of any
Letter of Credit of the proceeds of any drawing under such
Letter of Credit; or
(vii) any consequences arising from causes beyond the
control of the Lenders or the Agent, including, without
limitation, any Government Acts.
None of the foregoing shall affect, impair or prevent the
vesting of any of the Agent's rights or powers under this
Section 2.8.
SECTION 2.9 Exoneration. In furtherance and
extension, and not in limitation, of the Specific provisions
set forth above, any action taken or omitted by the Agent,
the Issuing Bank or any Lender under or in connection with
any of the Letters of Credit or any related certificates, if
taken or omitted in good faith and in conformance with
Applicable Law, shall not result in any liability of any
Lender or the Agent to any Borrower or relieve any Borrower
of any of its obligations hereunder to any such Person.
ARTICLE 3
TERM LOAN FACILITIES
SECTION 3.1 Term Loan Facilities.
(a) Term Loan A. Upon the terms and subject to the
conditions of; and in reliance upon the representations and
warranties made under, the Original Agreement, NationsBank
made a Term Loan A to each Borrower on the Original
Effective Date and such Loans are to remain outstanding
hereunder.
(b) Term Loan B. Upon the terms and subject to the
conditions of; and in reliance upon the representations and
warranties made under, this Agreement, each Lender agrees
severally, but not jointly, to make a Term Loan B to the
Borrowers in incremental Term Loan B Advances of not less
than $250,000 each and in aggregate principal amount of up
to such Lender's Commitment Percentage of the Term Loan B
Facility.
SECTION 3.2 Manner of Borrowing Term Loans. The Borrowers,
through the Borrowers' Representative, shall give the Agent
at least two Business Days' prior written notice of the
occurrence of the Effective Date and at least five Business
Days Notice of each proposed borrowing of a Term Loan B
Advance. Each notice requesting a Term Loan B Advance shall
set forth (i) the aggregate principal amount of the
principal advance, which shall not be less than $250,000 and
which when added to previous Term Loan B Advances shall not
exceed $2,000,000 in the aggregate, (ii) the Borrower or
Borrowers on whose behalf the advance is being requested and
the amount requested by each and the date on which the
requested advance is to be made, (iii) the cost of the
Equipment (exclusive of "soft costs") for which the proceeds
are to be used to pay, (iv) a certification that the amount
requested does not exceed 80% of such cost, and (v) the
purchase invoices relating to such Equipment. Upon receipt
of such notice from the Borrowers' Representative, the Agent
shall prompfiy notify each Lender thereof. Each Lender will
make the amount equal to its Commitment Percentage of the
aggregate principal amount of the respective Term Loans
available to the Agent, for the account of the Borrowers, at
the office of the Agent, prior to 12:00 noon on the
Effective Date in funds immediately, available to the Agent.
On the Effective Date, upon satisfaction of the applicable
conditions set forth in Sections 5.1 and 5.2, the Agent will
disburse the Term Loans on the Effective Date or the date
set forth in the notice requesting the Term Loan B Advance,
in same day funds, in accordance with the terms of the
letter from the Borrowers' Representative to the Agent
referred to in Section 5.1(23).
SECTION 3.3 Repayment of Term Loans.
(a) Term Loan A. The remaining principal amount of each
Term Loan A is due and payable, and shall be repaid in full
by the applicable Borrower, in consecutive installments on
successive Installment Payment Dates as follows: each
installment coming due on an lnstallment Payment Date
following the Effective Date shall be in an amount equal to
the applicable Term Loan A Installments, except that the
final installment shall be payable on the Term Loan
Termination Date and shall be in the amount of the then-
unpaid balance of such Term Loan A to such Borrower.
(b) Term Loan B. The principal amount of the Term Loan
B outstanding on July 1 of each year commencing July 1, 1999
is due and payable, and shall be repaid in full by the
Borrowers, in consecutive installments on successive
Installment Payment Dates as follows: each installment
coming due on an Installment Payment Date following such
July 1 shall be in an amount determined by dividing the
principal amount of all Term Loan B Advances as of each July
1, for the previous 12 month period, by 60, except that the
final installment shall be payable on the Term Loan
Termination for Date in the amount of the then-unpaid
balance of Term Loan B.
SECTION 3.4 Prepayment of Term Loans.
(a) Voluntary Prepayment. Provided that Availability
immediately prior to and after giving effect to any such
voluntary prepayment is not less than $500,000, the
Borrowers shah have the right at any time and from time
to time, upon at least five days' prior written notice by
the Borrowers' Representative to the Agent, to prepay,
without premium or penalty, Term Loan B; provided,
however, that Term Loan B may not be prepaid prior to
maturity without the consent of the Required Lenders in
whole or in part on any Business Day. Each partial
prepayment of Term Loan B shall be in a principal amount
equal to $50,000 or any integral multiple thereof. On the
prepayment date, the Borrowers shall pay interest on the
amount prepaidd, accrued to the prepayment date. Any
notice of prepayment given by the Borrowers'
Representative hereunder shall be irrevocable, and the
amount to be prepaid (including accrued interest) shall
be due and payable on the date designated in the notice.
(b) [Reserved].
(c) Prepayment on Asset Disposition, Provided Availability
equals at least $500,000 immediately prior to and after
giving effect to such prepayment, any and all amounts
received by a Borrower as cash proceeds (after deducting
related expenses and taxes) from the sale (subject to such
restrictions and consents as may be required in the Loan
Documents) of any Real Estate or Equipment, to the extent
such proceeds exceed (i) $100,000 in the case of any single
parcel or item of Real Estate or Equipment, or (ii) $250,000
in the aggregate for all Real Estate and Equipment as to any
Borrower sold during any twelve-month period, shall be paid
by all Borrowers within one month following receipt thereot;
to the Agent for application to the Term Loan B.
(d) Term Loan A Prepayment Prohibited. The Borrowers
shall not be entitled to prepay any part or all of Term Loan
A prior to the Term Loan Termination Date. In the event
that, notwithstanding such prohibition, the Borrowers shall,
for any reason and by any means, nevertheless prepay Term
Loan A or cause Term Loan A to be prepaid in whole or in
part, the Revolving Credit Facility and the right of any
Borrower to request further borrowings under this Agreement
shall immediately terminate, and all outstanding principal
of the Revolving Credit Loans, together with accrued but
unpaid interest therein and all fees and other amounts
payable in respect thereof; shall become immediately due and
payable at the option of and upon demand by the Agent on
behalf of the Lenders.
(e) Prepayment on Terminatiom The Borrowers shall be
obligated to prepay the Term Loans in full together with
accrued and unpaid interest thereon upon any termination of
this Agreement pursuant to Section 4.6 or otherwise or upon
any acceleration of the Term Loans pursuant to Article 12.
(f) Application of Prepayments. Each prepayment under
this Section 3.4 shall first be applied ratably to the
scheduled principal installments of each Term Loan B in the
inverse order of their maturities until paid in full, and
then ratably to the scheduled principal installments of each
Term Loan A in the inverse order of their maturities until
paid in full. Any amounts prepaid under this Section 3.4 may
not be reborrowed.
SECTION 3.5 Term Notes. Each Term Loan A made by
each Lender and the obligation of the applicable Borrower to
repay such Loan shall continue to be evidenced by this
Agreement and by a Term Note A made by such Borrower payable
to the order of such Lender dated on the Original Effective
Date. Each Term Loan B made by each Lender and the
obligation of the Borrowers to repay such Loan shall be
evidenced by this Agreement and by a Term Note B made by the
Borrowers, jointly and severally, payable to the order of
such Lender. Each Term Note B shall be dated the Effective
Date and be duly and validly executed and delivered by the
Borrowers.
ARTICLE 4.
GENERAL LOAN PROVISIONS; JOINT AND SEVERAL LIABILITY
SECTION 4.1 Interest.
(a) Subject to the provisions of Section 4.1(c), the
Borrowers, jointly and severally, will pay interest on the
unpaid principai amount of the Prime Rate Loans made to it,
for each day from the day such Loan was made until such Loan
is due (whether upon demand, at maturity, by reason of
acceleration or otherwise) at a rate per annum equal to the
sum of (i) the Applicable Interest Margin and (ii) the Prime
Rate, payable monthly in arrears as it accrues on each
Interest Payment Date.
(b) Subject to the provisions of Section 4.1(c), the
Borrowers, jointly and severally, will pay interest on the
unpaid principal amount of each Eurodollar Rate Loan for the
applicable Interest Period at a rate per annum equal to the
sum of (i) the Applicable Interest Margin and (ii) the
Eurodollar Rate, payable in arrears as it accrues on each
Interest Payment Date.
(c) If the Borrowers shall fail to pay when due
(whether upon demand, at maturity, by reason of acceleration
or otherwise) all or any portion of the principal amount of
any Loan or if there shall occur an Event of Default, each
such unpaid amount shall no longer bear interest in
accordance with the terms of Section 4.1(a), but shall bear
interest for each day from the date of such failure to pay
or Event of Default, as the case may be, until such failure
to pay or Event of Default shall have been cured or waived,
at a rate per annum equal to the sum of (i) the Default
Interest Margin and (ii) the Prime Rate, payable on demand.
The interest rate provided for in the preceding sentence
shall, to the extent permitted by Applicable Law, apply to
and accrue on the amount of any judgment entered with
respect to any Secured Obligation and shall continue to
accrue at such rate during any proceeding described in
Section 12.1(f) or (g).
(d) The Borrowers will, to the extent permitted by
Applicable Law, pay interest on the unpaid principal amount
of any Secured Obligation that is due and payable other than
the Loans in accordance with Sections 4.1(b) or (c), as
applicable, as if such Secured Obligation were a Prime Rate
Revolving Credit Loan.
(e) The interest rates provided for in Sections 4.1(a),
(b), (e) and (d) shall be computed on the basis of a year of
360 days and the actual number of days elapsed. Each
interest rate determined with reference to the Prime Rate
shall be adjusted automatically as of the opening of
business on the effective date of each change in the Prime
Rate.
(f) It is not intended by the Lenders, and nothing contained
in this Agreement or the Notes shall be deemed, to establish
or require the payment of a rate of interest in excess of
the maximum rate permitted by Applicable Law (the "Maximum
Rate"). If, in any month, the Effective Interest Rate,
absent such limitation, would have exceeded the Maximum
Rate, then the Effective Interest Rate for that month shall
be the Maximum Rate, and, if in future months, the Effective
Interest Rate would otherwise be less than the Maximum Rate,
then the Effective Interest Rate shall remain at the Maximum
Rate until such time as the amount of interest paid
hereunder equals the amount of interest which would have
been paid if the same had not been limited by the Maximum
Rate. In the event, upon payment in full of the Secured
Obligations, the total amount of interest Paid or accrued
under the terms of this Agreement is less than the total
amount of interest which would have been paid or accrued if
the Effective Interest Rate had at all times been in effect,
then the Borrowers shall, to the extent permitted by
Applicable Law, pay to the Lenders an amount equal to the
excess, if any, of (i)the lesser of (A)the amount of
interest which would have been charged if the Maximum Rate
had, at all times, been in effect and (B) the amount of
interest which would have accrued had the Effective Interest
Rate, at all times, been in effect and (ii) the amount of
interest actually paid or accrued under.this Agreement. In
the event the Lenders receive, collect or apply as interest
any sum in excess of the Maximum Rate, such excess amount
shall be applied to the reduction of the principal balance
of the Secured Obligations, and if no such principal is then
outstanding, such excess or part thereof remaining, shall be
paid to the Borrowers.
SECTION 4.2 Certain Fees.
(a) Amendment Fee. On the Effective Date, as additional
consideration for the extensions of credit provided for
hereunder, the Borrowers shall pay to the Agent for the sole
benefit of NationsBank, an Amendment fee in an amount equal
to the sum of $15,000.
(b) [Reserved].
(c) [Reserved].
(d) Letter of Credit Fees. The Borrowers agree to pay
to the Agent, for the ratable benefit of the Lenders, Letter
of Credit fees equal to 1.0%, per annum based on the average
daily aggregate Letter of Credit Amount of all Letters of
Credit from time to time outstanding during the term of this
Agreement. Such fees shall be payable to the Agent for the
ratable benefit of the Lenders in accordance with their
respective Commitment Percentages in advance on the date of
issuance of each Letter of Credit, shall be calculated
according tothe anticipated average daily Letter of Credit
Amount based on the stated term of each Letter of Credit and
shall be calculated based on a year of 360 days and the
actual number of days elapsed. The Borrowers agree to pay to
Agent, for the account of the Issuing Bank, the standard
fees and charges of the Issuing Bank for issuing,
administering, amending, renewing, paying and canceling
Letters of Credit, as and when assessed.
SECTION 4.3 Manner of Payment.
(a) Except as otherwise expressly provided in Section
8.1(b), each payment (including prepayments) by the
Borrowers (or any of them) on account of the principal of or
interest on the Loans or of any other amounts payable to the
Lenders under this Agreement or any Note shall be made not
later than 12:00 noon on the date specified for payment
under this Agreement to the Agent, for the account of the
Lenders, at the Agent's Office, in Dollars, in immediately
available funds and shah be made without any setoff,
counterclaim or deduction whatsoever. Any payment received
after such time but before 5:00 p.m. on such day shall be
deemed a payment on such date for the purposes of Section
12.1, but forah other purposes shah be deemed to have been
made on the next succeeding Business Day.
(b) Each Borrower hereby irrevocably authorizes each Lender
and each Affiliate of such Lender and each participant
herein to charge any account-of such Borrower maintained
with such Lender or such Affiliate or participant with such
amounts as may be necessary from time to time to pay any
Secured Obligations (whether or not owed to such Lender,
Affiliate or participant) which are not paid when due.
SECTION 4.4 General. If any payment under this
Agreement or any Note shall be specified to be made upon a
day which is not a Business Day, it shall be made on the
next succeeding day which is a Business Day and such
extension of time shall in such case be included in
computing the amount of such payment or interest, if any, in
connection with such payment.
SECTION 4.5 Loan Accounts; Statements of Account
(a) Each Lender shall open and maintain on its books a
loan account in the Borrowers' name (each, a "Loan Account"
and collectively, the "Loan Accounts"). Each such Loan
Account shall show as debits thereto each Loan made under
this Agreement by such Lender to the Borrowers and as
credits thereto all payments received by such Lender and
applied to principal of such Loan, so that the balance of
the Loan Account at all times reflects the principal amount
due such Lender from the Borrowers.
(b) The Agent shall maintain on its books a control
account for the Borrowers in which shall be recorded (i) the
amount of each disbursement made hereunder, (ii) the amount
of any principal or interest due or to become due from the
Borrowers hereunder, and (iii) the amount of any sum
received by the Agent hereunder from the Borrowers and each
Lender's ratable share therein.
(c) The entries made in the accounts pursuant to
subsections (a) and (b) above shall be prima facie evidence,
in the absence of manifest error, of the existence and
amounts of the obligations of the Borrowers therein recorded
and in case of discrepancy between such accounts, in the
absence of manifest error, the accounts maintained pursuant
to subsection (b) above shall be controlling.
(d) The Agent will account separately to the Borrowers
monthly with a statement of Loans, charges and payments made
to and by the Borrowers pursuant to this Agreement, and such
accounts rendered by the Agent shall be deemed final,
binding and conclusive, save for manifest error, unless the
Agent is notified by the Borrowers in writing to the
contrary within 30 days of the date the account to the
Borrowers was so rendered. Such notice by the Borrowers
shall be deemed an objection to only those items
specifically objected to therein. Failure of the Agent to
render such account shall in no way affect the rights of the
Agent or of the Lenders hereunder.
SECTION 4.6 Termination of Agreement. Subject to the
provisions of Section 4.10, the Borrowers shall have the
right, at any time, to terminate this Agreement upon not
less than 30 Business Days' prior written notice of their
intention to terminate thi, Agreement, which notice shall
specify the effective date of such termination Upon receipt
of such notice, the Agent shall promptly notify each Lender
thereof. On the date spedfled in such notice, such
termination shall be effected, provided, that the Borrowers
shall, on or prior to such date, pay to the Agent, for the
account of the Lenders, in same day funds, an amount equal
to all Secured Obligations then outstanding, including
without limitation, all (i)accrued interest thereon, (ii)
all accrued fees provided for hereunder, and (iii) any
amounts payable to the Lenders and the Agent pursuant to
Sections 4.10, 15.2, 15.3 and 15.14 and in addition thereto,
shall deliver to the Agent, in respect of each outstanding
Letter of Credik collateral consisting of cash or Cash
Equivalents or other seoarity satisfactory to the Issuing
Bank in its sole discretion in an amount equal to the
related Letter of Credit Obligations to be held by the
Issuing Bank as collateral security for the payment of and
to be applied to the payment of any amounts which
may.thereafter become due with respect to any Letter of
Credit. Additionally, if requested by any Lender, the
Borrowers shall provide the Agent and the Lenders with an
indemnification agreement in form and substance satisfactory
to the Agent and the Lenders with respect to returned and
dishonored items and such other matters as the Agent or any
Lender shall reasonably request. Following a notice of
termination as provided for in this Section 4.6 and upon
payment in full of the amounts specified in this Section
4.6, this Agreement shaft be terminated and the Agent, the
Lenders and the Borrowers shall have no further obligations
to any other party hereto except for the obligations to the
Agent and the Lenders pursuant to Section 15.14 hereof.
SECTION 4.7 Making of Loans.
(a) Nature of Obligations of Lenders to Make Loans. The
obligations of the Lenders under this Agreement to make
Revolving Credit Loans and Term Loans are several and are
not joint or joint and several.
(b) Assumption by Agent. Subject to the provisions of
Section 4.8 and notwithstanding the occurrence or
continuance of a Default or Event of Default or other
failure of any condition to the making of Revolving Credit
Loans hereunder subsequent to the Effective Date, unless the
Agent shall have received notice from a Lender in accordance
with the provisions of Section 4.7(c) prior to a proposed
borrowing date that such Lender will not make available to
the Agent such Lender's portion of such Revolving Credit
Loan, the Agent may assume that such Lender will make such
Loan available to the Agent in accordance with Section
2.2(a), and the Agent may, in reliance upon such assumption,
make available to the Borrowers on such date a corresponding
amount. If and to the extent such Lender shall not make its
Loan available to the Agent, such Lender, on the one hand,
and the Borrowers, jointly and severally, on the other,
severally agree to repay to the Agent forthwith on demand
such corresponding amount (the "Make-Whole Amount"),
together with interest thereon for each day from the date
such amount is made available to the Borrowers until the
date such amount is repaid to the Agent at the Effective
Interest Rate or, if lower, subject to Section 4.1(e), the
Maximum Rate; provided, however, that if on the Interest
Payment Date next following the date on which any Lender
pays interest to the Agent at the Effective Rate or the
Maximum Rate on a Make-Whole Amount as aforesaid, the
Borrowers default in making the interest payment due on such
Interest Payment Date, then the Agent shall reimburse such
Lender for the excess, if any, of the amount of interest so
paid by such Lender on the Make-Whole Amount and the amount
of interest that such Lender would have paid had the Lender
been required to pay interest on the Make-Whole Amount at
the Federal Funds Effective Rate If such Lender shall repay
to the Agent such corresponding amount, the amount so repaid
shall constitute such Lender's Loan made on such borrowing
date for purposes of this Agreement. The failure of any
Lender to make its Loan available shall not (without regard
to whether a Borrower shall have returned the amount thereof
to the Agent in accordance with this Section 4.7) relieve it
or any other Lender of its obligation, if any, hereunder to
make its Loan available on such borrowing date, but no
Lender shall be responsible for the failure of any other
Lender to make its Loan available on the borrowing date.
(c) Delegation of Authority to Agent Without limiting
the generality of Section 14.1, each Lender expressly
authorizes the Agent to determine on behalf of such
Lender (i) any reduction or increase of the Applicable
Percentage, so long as such Applicable Percentage does
not at any time exceed the rate set forth in the
definition thereof, (ii) any allocation among the
Borrowers of the Chassis Sublimit, the Finished Goods
Sublimit, the Foreign Receivables Sublimit, the Raw
Materials Sublimit, the 3000 Bus Chassis Sublimit and the
Used Vehicle Sublimit, (iii) the creation or elimination
of any reserves against the Revolving Credit Facility and
the Borrowing Base, and (iv)whether or not Inventory or
Receivables shall be deemed to constitute Eligible
Inventory or Eligible Receivables. Such authorization may
be withdrawn by the Required Lenders by giving the Agent
written notice of such withdrawal signed by the Required
Lenders, provided, however, that unless otherwise agreed
by the Agent, such withdrawal of authorization shall not
become effective until the thirtieth Business Day after
receipt of such notice by the Agent. Thereafter, the
Required Lenders shall joinfly instruct the Agent in
writing regarding such matters with such frequency as the
Required Lenders shall jointly determine. Unless and
until the Agent shall have received written notice, which
shall have become effective, from the Required Lenders as
to the existence of a Default, an Event of Default or
some other circumstance which would relieve the Lenders
of their respective obligations to make Loans hereunder,
which notice shall be in writing and shall be signed by
the Required Lenders and shall expressly state that the
Required Lenders do not intend to make available to the
Agent Revolving Credit Loans made after the effective
date of such notice, the Agent shall be entitled to
continue to make the assumptions described in Section
4.7{b). The notice described in the preceding sentence
shall become effective on the third Business Day after
receipt of such notice by the Agent, unless otherwise
agreed by the Agent; during the period between receipt of
such notice, and effectiveness thereof; the Agent shall
be entitled to make the assumptions described in Section
4.7(b) as to any Loan as to which it has not received
written notice to the contrary prior to 11:00 a.m. on the
Business Day next preceding the day on which the Loan is
to be made. The Agent shall not be required to make any
Loan for the account of any Lender as to which it shall
have received notice of such Lender's intention not to
make its Loan available to the Agent. Any withdrawal of
authorization under this Section 4.7(c) shall not affect
the validity of any Loans or other determinations made or
actions taken or omitted prior to the effectiveness
thereof.
SECTION 4.8 Settlement Among Lenders.
(a) Term Loans. The Agent shall pay to each Lender on
each Interest Payment Date or lnstallment Payment Date, as
the case may be, its ratable share, based upon the principal
amount of the applicable Term Loans owing to such Lender, if
all payments received by the Agent hereunder in immediately
available funds in respect of the-principal of, or interest
on, the Term Loans, net of any amounts payable by such
Lender to the Agent, by wire transfer of same day funds.
(b) Revolving Credit Loans. It is agreed that each
Lender's Net Outstandings are intended by the Lenders to be
equal at all times to such Lender's Commitment Percentage of
the aggregate principal amount of ail Revolving Credit Loans
outstanding. Notwithstanding such agreement, the several and
not joint obligation of each Lender to fund Revolving Credit
Loans made in accordance with the terms of this Agreement
ratably in accordance with such Lender's Commitment
Percentage and each Lenders right to receive its ratable
share of principal payments on Revolving Credit Loans made
by it in accordance with its Commitment Percentage, the
Lenders agree that in order to facilitate the administration
of this Agreement and the Loan Documents that settlement
among them may take place on a periodic basis in accordance
with the provisions of this Section 4.8.
(c) Settlement Procedures as to Revolving Credit Loans.
To the extent and in the manner hereinafter provided in this
Section 4.8, settlement among the Lenders as to Revolving
Credit Loans may occur periodically on Settlement Dates
determined from time to time by the Agent, which may occur
before or after the occurrence or during the continuance of
a Default or Event of Default and whether or not ail of the
conditions set forth in Section 5.2 have been met. On each
Settlement Date, payments shall be made by or to NationsBank
and the other Lenders in the manner provided in this Section
4.8 in accordance with the Settlement Report delivered by
the Agent pursuant to the provisions of this Section 4.8 in
respect of such Settlement Date so that as of each
Settlement Date, and after giving effect to the transactions
to take place on such Settlement Date, each Lenders Net
Outstandings shall equal such Lender's Commitment Percentage
of the Revolving Credit Loans outstanding.
(i) Selection of Settlement Dates. If the Agent
elects, in its discretion, but subject to the consent of
NationsBank, to settle accounts among the Lenders with
respect to principal amounts of Revolving Credit Loans less
frequenfiy than each Business Day, then the Agent shall
designate periodic Settlement Dates which may occur on any
Business Day after the Effective Date; provided, however,
that the Agent shall designate as a Settlement Date any
Business Day which is an Interest Payment Date; and provided
further, that a Settlement Date shall occur at least once
during each seven-day period. The Agent shall designate a
Settlement Date by delivering to each Lender a Settlement
Report not later than 12:00 noon on the proposed Settlement
Date, which Settlement Report will be in the form of Exhibit
F hereto and shall be computed with respect to the period
beginning on the next preceding Settlement Date and ending
on such designated Settlement Date.
(ii) Non-Ratable Loans and Payments. Between Settlement
Dates, the Agent shall request and NationsBank may (but
shall not be obligated to) advance to the Borrowers out of
NationsBank's own funds, the entire principal amount of any
Revolving Credit Loan requested or deemed requested pursuant
to Section 2.2(a) (any such Revolving Credit Loan being
referred to as a "Non-Ratable Loan"). The making of each Non-
Ratable Loan by NationsBank shall be deemed to be a purchase
by NationsBank of a 100% participation in each other
Lender's Commitment Percentage of the amount of such Non-
Ratabh Loan. All payments of principal, interest and any
other amount with respect to such Non-Ratable Loan shall be
payable to and received by the Agent for the account of
NationsBank. Upon demand by NationsBank, with notice thereof
to the Agent, each other Lender shall pay to NationsBank, as
the repurchase of such participation, aa amount equal to
100% of such Lender's Commitment Percentage of the principal
amount of such Non-Ratable Loan. Any payments received by
the Agent between Settlement Dates which in accordance with
the terms of this Agreement are to be applied to the
reduction of the outstanding principal balance of Revolving
Credit Loans, shall be paid over to and retained by
NationsBank for such application, and such payment to and
retention by NationsBank shall be deemed, to the extent of
each other Lender's Commitment Percentage of such payment,
to be a purchase by each such other Lender of a
participation in the Revolving Credit Loans (including the
repurchase of participations in Non-Ratable Loans) held by
NationsBank. Upon demand by another Lender, with notice
thereof to the Agent, NationsBank shall pay to the Agent,
for the account of such other Lender, as a repurchase of
such participation, an amount equal to such other Lender's
Commitment Percentage of any such amounts (after application
thereof to the repurchase of any participations of
NationsBank in such other Lender's Commitment Percentage of
any Non-Ratable Loans) paid only to NationsBank by the
Agent.
(iii) Net Decrease in 0utstandings. If on any
Settlement Date the increase, if any, in the Dollar amount
of any Lender's Net Outstandings which is required to comply
with the first sentence of Section 4.8(b) is less than such
Lender's Commitment Percentage of amounts received by the
Agent but paid only to NationsBank since the next preceding
Settlement Date, such Lender and the Agent, in their
respective records, shall apply such Lender's Commitment
Percentage of such amounts to the increase in such Lender's
Net Outstandings, and NationsBank shall pay to the Agent,
for the account of such Lender, the excess allocable to such
Lender.
(iv) Net Increase in Outstandings. If on any Settlement
Date the increase, if any, in the Dollar amount of any
Lender's Net Outstandings which is required to comply with
the first sentence of Section 4.8(b) exceeds such Lender's
Commitment Percentage of amounts received by the Agent but
paid only to NationsBank since the next preceding Settlement
Date, such Lender and the Agent, in their respective
records, shall apply such Lender's Commitment Percentage of
such amounts to the increase in such Lender's Net
Outstandings, and such Lender shall pay to the Agent, for
the account of NationsBank, any excess.
(v) No Change in Outstandings. If a Settlement Report
indicates that no Revolving Credit Loans have been made
during the period since the next preceding Settlement Date,
then such Lender's Commitment Percentage of any amounts
received by the Agent but paid only to NationsBank shall be
paid by NationsBank to the Agent, for the account of such
Lender. If a Settlement Report indicates that the increase
in the Dollar amount of a Lender's Net Outstandings which is
required to comply with the first sentence of Section 4.8(b)
is exactly equal to such Lender's Commitment Percentage of
amounts received by the Agent but paid only to NationsBank
since the next preceding Settlement Date, such Lender and
the Agent, in their respective records, shah apply such
Lender's Commitment Percentage of such amounts to the
increase in such Lender's Net Outstandings.
(vi) Return of Payments. If any amounts received by
NationsBank in respect of the Secured Obligations are later
required to be returned or repaid by NationsBank to the
Borrowers or any other obligor or their respective
representatives or successors in interest, whether by court
order, settlement or otherwise, in excess of the
NationsBank's Commitment Percentage of all such amounts
required to be returned by all Lenders, each other Lender
shall, upon demand by NationsBank with notice to the Agent,
pay to the Agent for the account of NationsBank, an amount
equal to the excess of such Lender's Commitment Percentage
of all such amounts required to be returned by all Lenders
over the amount, if any, returned directly by such Lender.
(vii) Payments to Agent. Lenders. (A) Payment by any
Lender to the Agent shall be made not later than 1:00 p.m.
on the Business Day such payment is due, provided that if
such payment is due on demand by another Lender, such demand
is made on the paying Lender not later than 10:00 a.m. on
such Business Day. Payment by the Agent to any Lender shall
be made by wire transfer, promptly following the Agent's
receipt of funds for the account of such Lender and in the
type of funds received by the Agent, provided that if the
Agent receives such funds at or prior to 1:00 p.m., the
Agent shall pay such funds to such Lender by 2:00 p.m. on
such Business Day. If a demand for payment is made after the
applicable time set forth above, the payment due shall be
made by 2:00 p.m. on the first Business Day following the
date of such demand.
(B) If a Lender shall, at any time, fail to make any
payment to the Agent hereunder, the Agent may, but shall not
be required to, retain payments that would otherwise be made
to such Lender hereunder and apply such payments to such
Lender's defaulted obligations hereunder, at such time, and
in such order, as the Agent may elect in its sole
discretion.
(C) With respect to the payment of any funds under this
Section 4.8(e), whether from the Agent to a Lender or from a
Lender to the Agent, the party failing to make full payment
when due pursuant to the terms hereof shall, upon demand by
the other party, pay such amount together with interest on
such amount at the Federal Funds Effective Rate.
(d) Settlement of Other Secured Obligations. All other
amounts received by the Agent on account of, or applied
by the Agent to the payment of,-any Secured Obligation
owed to the Lenders (including, without limitation, fees
payable to the Lenders pursuant to Section 4.2 and
proceeds from the sale of, or other realization upon, all
or any part of the Collateral or any other security for
the Secured Obligations following an Event of Defanlt)
that are received by the Agent on or prior to 1:00 p.m.
on a Business Day will be paid by the Agent to each
Lender on the same Business Day, and any such amounts
that are received by the Agent after 1:00 p.m. will be
paid by the Agent to each Lender on the following
Business Day. Unless otherwise stated herein, the Agent
shall distribute fees payable to the Lenders pursuant to
Sections 4.2(c) and (d) ratably to the Lenders based on
each Lender's Commitment Percentage and shall distribute
proceeds bom the sale of, or other realization upon, all
or any part of the Collateral following an Event of
Default ratably to the Lenders based on the amount of the
Secured Obligations then owing to each Lender.
SECTION 4.9 [Reserved].
SECTION 4.10 Early Termination Fee. If the
Borrowers prepay the Loans in mbstantial part with timds
other than those derived directly from the Net Income of
Xxxxxxx and its Consolidated Subsidiaries or terminate this
Agreement prior to the Termination Date, as then in effect,
for any reason, the Borrowers shall pay to the Agent for the
ratable benefit of the Lender's on such date of such
prepayment or termination, as the case may be, as liquidated
damages and compensation for the costs of making funds
available to the Borrowers under this Agreement and the lost
benefits of the bargain, and not as a penalty, an amount
equal to $250,000. The Borrowers agree that the damages that
would be suffered by the Lenders in the event of the
Borrowers' substantial prepayment or termination of this
Agreement other than on a Termination Date are difficult, if
not impossible, to determine and that the termination fees
specified above are a reasonable estimate of such damages.
SECTION 4.11 Borrowers' Representative. The
Borrowers are and shall be joinfly and severally liable for
all Secured Obligations. Each of the Borrowers hereby
appoints Xxxxxxx as, and Xxxxxxx shall act under this
Agreement as, the representative of all Borrowers for all
purposes, including without being limited to, requesting
borrowings and receiving account statements and other
notices and communications to the Borrowers (or any of them)
from the Agent or any Lender. The Agent and the Lenders may
rely, and shall be fully protected in relying, on any
request for borrowing, disbursement instruction, report,
information or any other notice or communication made or
given by Xxxxxxx, whether in its own name, on behalf of any
other Borrower or on behalf of "the Borrowers," and neither
the Agent nor any Lender shall have any obligation to make
any inquiry or request any confirmation from or on behalf of
any other Borrower as to the binding effect on it of any
such request, instruction, report, information, notice or
communication, nor shall the joint and several character of
the Borrowers' liability for the Secured Obligations be
effected.
SECTION 4.12 Joint and Several Liability.
(a) Joint and Several Liability. The Secured Obligations
shall constitute one joint and several direct and general
obligation of all of the Borrowers secured by the Security
Interest and the Lien of the Mortgages and the other
Security Documents and by all other Liens now, or at any
time or times hereafter, granted by the Borrowers, or any of
them, to the Agent for the benefit of the Lenders:
Notwithstanding anything to the contrary-contained herein or
in any other Loan Document and notwithstanding the fact that
each Borrower has not physically executed as co-maker each
Note, each of the Borrowers shall be, and hereby undertake
and agree to be, joinfly and severally, with each other
Borrower, directly and unconditionally liable to the Agent
and the Lenders for all Secured Obligations and shall have
the obligations of co-makers with respect to the Revolving
Credit Loans, the Revolving Credit Notes, the Term Loans,
the Term Notes and the other Secured Obligations, it being
agreed that each Loan to each Borrower inures to the benefit
of all Borrowers, and that the Agent and the Lenders are
relying on the joint and several liability of the Borrowers
as co-makers in extending the Revolving Credit Loans and the
Term Loans hereunder and would not extend the Revolving
Credit Loans or the Term Loans to any Borrower without the
undertakings of all of the Borrowers set forth in this
Section 4.12. Each Borrower hereby unconditionally and
irrevocably agrees that upon the becoming due (whether at
stated maturity, by acceleration or otherwise) of any
principal of, or interest on, any Revolving Credit Loan or
Term Loan or other Secured Obligation payable to the Agent
or any Lender, it will forthwith pay the same, without
notice or demand. Additionally, each Borrower expressly
acknowledges, authorizes and agrees to the provisions of
Sections 2.2 and 2.3 relating to Leans and repayments giving
rise to intercompany receivables and payables.
(b) No Reduction in Secured Obligations. No payment or
payments made by any of the Borrowers or any other Person or
received or collected by the Agent or any Lender from any of
the Borrowem or any other Person by virtue of any action or
proceeding or any set-off or appropriation or application at
any time or from time to time in reduction of or in payment
of the Secured Obligations shall be deemed to modify,
reduce, release or otherwise affect the liability of each
Borrower under this Agreement, which shall remain liable for
the Secured Obligations until the Secured Obligations are
paid in full and the Revolving Credit Facility is
terminated.
SECTION 4.13 Secured Obligations Absolute. To the
extent permitted by Applicable Law, each Borrower agrees
that the Secured Obligations will be paid strictly in
accordance with the terms of the Loan Documents. All Secured
Obligations shall be conclusively presumed to have been
created in reliance hereon. The liabilities under this
Agreement shall be absolute and unconditional irrespective
of:
(i) any lack of validity or enforceability of any Loan
Documents or any other agreement or instrument relating
thereto;
(ii) any change in the time, manner or place of
payments of, or in any other term of, all or any part of the
Secured Obligations, or any other amendment or waiver
thereof or any consent to departure therefrom, including,
but not limited to, any increase in the secured Obligations
resulting fromthe extension of additional credit to any
Borrower or otherwise;
(iii) any taking, exchange, release or non-perfection
of any collateral, or any release or amendment or waiver of
or consent to departure from any guaranty, for all or any of
the Secured Obligations;
(iv) any change, restructuring or termination of the
corporate or organizational structure or existence of any
Borrower; or
(v) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, any
Borrower or a Guarantor.
This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment
of any of the Secured Obligations is rescinded or must
otherwise be returned by the Agent or any Lender upon the
insolvency, bankruptcy or reorganization of any Borrower or
otherwise, all as though such payment had not been made.
SECTION 4.14 Waiver of Suretyship Defenses. Each
Borrower agrees that the joint and several liability of the
Borrowers provided for in Section 4.12 shall not be impaired
or affected by any modification, supplement, extension or
amendment or any contract or agreement to which any Borrower
may hereafter agree (other than an agreement signed by the
Agent and the Lenders specifically releasing such
liability), nor by any delay, extension of time, renewal,
compromise or other indulgence granted by the Agent or the
Lenders with respect to any of the Secured Obligations, nor
by any other agreements or arrangements whatever with any
Borrower or with anyone else, each Borrower hereby waiving
all notice of such delay, extension, release, substitution,
renewal, compromise or other indulgence, and hereby
consenting to be bound thereby as fully and effectually as
if it had expressly agreed thereto in advance. The liability
of each Borrower is direct and unconditional as to all of
the Secued Obligations, and may be enforced without
requiring the Agent or any Lender first to resort to any
other right, remedy or security against any other Borrower
or Guarantor. Each Borrower hereby expressly waives
promptness, diligence, notice of acceptance and any other
notice with respect to any of the Secured Obligations, the
Revolving Credit Notes, the Term Notes, this Agreement or
any other Loan Document and any requirement that the Agent
or any Lender protect, secure, perfect or insure any Lien or
any pwperty subject thereto or exhaust any right or take any
action against any Borrower or any other Person or any
Collateral or Guarantor Collateral, including any fights any
Borrower may otherwise have under O.C.G.A. 10-7-24.
SECTION 4.15 Subrogation Except as provided in Section 4.16,
any claims or other rights that a Borrower may now have or
hereafter acquire against any other Borrower that arise
from file existence, payment, performance or enforcement of
the Secured Obligations or any Loan Document, including,
without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification and any right
to participate in any claim or remedy of the Agent or the
Lenders against any other Borrower or any Collateral that
the Agent for the benefit of the Lenders or any Lender now
have or hereafter acquire, whether or not such claim, remedy
or right arises in equity or under contract, statute or
common law, including, without limitation, the right to take
or receive from any other Borrower, directly or indirectly,
in cash or other property or by setoff or in any other
manner, payment or security on account of such claim, remedy
or right, shall be and is hereby declared to be junior and
subordinate to any and all rights which the Agent or any
Lender may have pursuant hereto or to any of the other Loan
Documents or otherwise. Except as provided in Section 4.16,
no Borrower shall enforce any such right of subrogation,
reimbursement, contribution, indemnity or similar right
until all Secured Obligations shall have been irrevocably
paid or provided for in full. If any amount shall be paid to
or collected by any Borrower in violation of the preceding
sentence at any time prior to the later of the payment in
full of the Secured Obligations and the termination of the
Revolving Credit Facility, such amount shall be deemed to
have been received by such Borrower for the benefit of, and
held in trust for the benefit of, the Agent and the Lenders,
and shall forthwith be paid to the Agent for the account of
the Lenders to be credited and applied to the Secured
Obligations, whether matured or unmatured, in accordance
with the terms of this Agreement, or to be held as
Collateral for any Secured Obligations or other amounts
payable under this Agreement thereafter arising, Each
Borrower acknowledges that it will receive direct and
indirect benefits from the financing arrangements
contemplated by this Agreement and that the waivers set
forth in this Section 4.15 are knowingly made in
contemplation of such benefits.
SECTION 4.16 Right of Contribution Among Borrowers
Each Borrower hereby agrees that to the extent that any
other Borrower shall have paid more than the aggegate amount
of all Valuable Transfers to it hereunder, it shall be
entitled to seek and receive contribution from and against
any other Borrower which has paid less than the aggregate
amount of all Valuable Transfers to it hereunder. The
provisions of this Section 4.16 shall not limit the
obligations and liabilities of any Borrower to the Agent and
the Lenders, and each Borrower shall remain liable to the
Agent and the Lenders for the full amount as to which such
Borrower is obligated hereunder.
SECTlON 4.17 Payments Not at End of Interest
Period: Failure to Borrow. If for any reason any payment of
principai with respect to any Eurodollar Rate Loan is made
on any day prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan or, after having
given a Notice of Borrowing with respect to any Eurodollar
Rate Revolving Credit Loan or a Notice of Conversion or
Continuation with respect to any Loan to be continued as or
converted into a Eurodollar Rate Loan, such Loan is not made
or is not continued as or converted into a Eurodollar Rate
Loan due to the Borrowers' failure to borrow or to fulfill
the applicable conditions set forth in Article 5, the
Borrowers shall pay to each Lender, in addition to any
amounts that may be due under Section 4.10, an amount (if a
positive number) computed pursuant to the following formula:
L = (R - T) x Px D / 360
L= amount payable
R= interest rate applicable to the Eurodollar
Rate Loan unborrowed or prepaid
T= effective interest rate per annum at which
any readily marketable bonds or other obligations
of the United States, selected at the Agent's sole
discretion, maturing on or near the last day of the
then applicable or requested Interest Period for such
Loan and in approximately the same amount as such Loan,
can be purchased by such Lender on the day of such
payment of principal or failure to borrow
P= the amount of principal paid or the amount
of the requested Loan
D= the number of days remaining in the
Interest Period as of the date of such
payment or the number of days in the
requested Interest Period
The Borrowers shall pay such amount upon presentation by the
Agent of a statement setting forth the amount and the
Agent's calculation thereof pursuant hereto, which
statement shall be deemed true and correct absent manifest
error.
SECTION 4.18 Assumptions Concerning Funding of
Eurodollar Rate Loans. Calculation of all amounts payable to
the Lenders under this Article 4 shall be made as though
each Lender had actually funded or committed to fund its
Eurodollar Rate Loans through the purchase of an underlying
deposit in an amount equal to the amount of such ratable
share and having a maturity comparable to the relevant
Interest Period for such Eurodollar Rate Loan; provided,
however, each Lender may fund its Eurodollar Rate Loans in
any manner it deems/it and the foregoing assumption shall be
utilized only for the calculation of amounts payable under
this Article 4.
SECTION 4.19 Notice of Conversion or Continuation Whenever
the Borrowers desire, subject to the provisions of Section
4.7, to convert an outstanding Prime Rate Loan into a
Eurodollar Rate Loan or to continue all or a portion of an
outstanding Eurodollar Rate Revolving Credit Loan or
Eurodollar Rate Term Loan for a subsequent Interest Period,
the Borrowers shall notify the Agent in writing (which
notice shall be irrevocable) by telecopy not later than
11:30 a.m. on the date two Business Days before the day on
which such proposed conversion or continuation is to be
effective (and such effective date of any continuation shall
be the last day of the Interest Period for such Eurodollar
Rate Loan). Each such notice (a "Notice of Conversion or
Continuation") shall (i) identify the Loan to be converted
or continued, the aggregate outstanding principal balance
thereof and, if a Eurodollar Rate Loan, the last day of the
Interest Period applicable to such Loan, (ii) specify the
effective date of such conversion or continuation, (iii)
specify the principal amount of such Loan to be converted or
continued, and (iv)the Interest Period to be applicable to
the Eurodollar Rate Loan as converted or continued, and
shall be immediately followed by a written confirmation
thereof by the Borrower in a form acceptable to the Agent,
provided that if such written confirmation differs in any
respect from the action taken by the Lenders, the records of
the Agent shall control absent manifest error.
SECTION 4.20 Conversion or Continuation Provided
that no Event of Default shall have occurred and be
continuing (but subject to the provisions of Section 4.19),
the Borrowers may request that all or any part of any
outstanding Prime Loan be converted into a Eurodollar Rate
Loan or Loans or (b) Eurodollar Rate Loan be continued as a
Eurodollar Rate Loan or Loans, in the same aggregate
principal amount, on any Business Day (which, in the case of
continuation of a Eurodollar Rate Loan, shall be the last
day of the Interest Period applicable thereto), upon notice
(which notice shall be irrevocable) given in accordance with
Section 4.19, provided that nothing in this Article 4 shall
be construed to permit the conversion of a Revolving Credit
Loan to a Term Loan or vice versa.
SECTION 4.21 Duration of Interest Periods; Maximum
Number of Eurodollar Rate Loans; Minimum Increments.
(a) Subject to the provisions of the definition
"Interest Period", the duration of each Interest Period
shall be as specified in the applicable Notice of Borrowing
or Notice of Conversion or Continuation. The Borrowers may
elect a subsequent Interest Period to be applicable to any
Eurodollar Rate Loan by giving a Notice of Conversion or
Continuation with respect to such Loan in accordance with
Section 4.19.
(b) If the Agent does not receive a notice of election in
accordance with Section 4.19 with respect to the
continuation of a Eurodollar Rate Loan within the applicable
time limits specified in said.Section 4.19, or if, when such
notice must be given, an Event of Default exists or
Eurodollar Rate Loans are not available, the Borrowers shall
be deemed to have elected to convert such Eurodollar-Rate
Loan in whole into a Prime Rate Loan on the last day of the
Interest Period therefor.
(c) Notwithstanding the foregoing, the Borrowers may
not select an Interest Period that wouJd end, but for the
provisions of the definition "Interest Period," after the
Termination Date.
(d) In no event shall there be more than 4 Eurodollar
Rate Loans outstanding hereunder at any time. For the
purpose of this subsection (d), each Eurodollar Rate
Revolving Credit Loan and each Eurodollar Rate Term Loan
having a distinct Interest Period shall be deemed to be a
separate Loan hereunder.
(e) Each Eurodollar Rate Loan shall be in a minimum amount
of $1,000,000.
SECTION 4.22 Changed Circumstances.
(a) If the introduction of or any change in or in the
interpretation of (in each case, after the date hereof) any
law or regulation makes it unlawful, or any Governmental
Authority asserts, after the date hereof; that it is
unlawful, for any Lender to perform its obligations
hereunder to make Eurodollar Rate Loans or to fund or
maintain Eurodollar Rate Loans hereunder, such Lender shall
notify the Agent of such event and the Agent shall notify
the Borrowers of such event, and the right of the Borrowers
to select Eurodollar Rate Loans for any subsequent Interest
Period or in connection with any subsequent conversion of
any Loan shall be suspended until the Agent shall notify the
Borrowers that the circumstances causing such suspension no
longer exist, and the Borrowers shah forthwith prepay in
full all Eurodollar Rate Revolving Credit Loans then
outstanding and shall convert each Eurodollar Rate Term Loan
into a Prime Rate Term Loan, and shall pay all interest
accrued thereon through the date of such prepayment or
conversion, unless the Borrowers, within three Business Days
after such notice from the Agent, requests the conversion of
all Eurodollar Rate Loans then outstanding into Prime Rate
Loans; provided, that if the date of such repayment or
proposed conversion is not the last day of the Interest
Period applicable to such Eurodollar Rate Loans, the
Borrower shall also pay any amount due pursuant to Section
4.17; provided, further, however, that if such Loan is
converted to a Prime Rate Loan and the Effective Interest
Rate of such Prime Rate Loan is equal to or greater than
such Eurodollar Rate Loans for the duration of such Interest
Period then no amount shall be due under Section 4.17.
(b) If the Agent shall, at least one Business Day before the
date of any requested Revolving Credit Loan or the effective
date of any conversion or continuation of an existing Loan
to be made or continued as or converted into a Eurodollar
Rate Loan (each such requested Revolving Credit Loan made
and Loan to be converted or continued, a "Pending Loan"),
notify the Borrower that the Eurodollar Rate will not
adequately reflect the cost to the Lenders of making or
funding such Pending Loan as a Eurodollar Rate Loan or that
the Interbank Offered Rate is not determinable from any
interest rate reporting service of recognized standing, then
the right of the Borrowers to select the Eurodollar Rate
Loan for such Pending Loan, any subsequent Revolving Credit
Loan or in connection with any subsequent conversion or
continuation of any Loan shall be suspended until the Agent
shall notify the Borrowers that the circumstances causing:
such suspension no longer exist, and each Loan comprising
each Pending Loan and each such subsequent Loan requested to
be made, continued or converted shall be made or continued
as or converted into a Prime Rate Loan.
ARTICLE 5.
CONDITIONS PRECEDENT
SECTION 5.1 Conditions Precedent to Effective
Date. Notwithstanding any other provision of this Agreement,
the respective obligations of the Lenders to make or
continue the Term Loans and the Revolving Credit Loans
hereunder are subject to the conditions precedent that (a)
no action, proceeding, investigation, regulation or
legislation, shall have been instituted, threatened or
proposed before any court, governmental agency or
legislative body to enjoin, restrain or prohibit, or to
obtain substantial damages in respect of, or which is
related to or arises out of, this Agreement, or the
consummation of the transactions contemplated hereby, or
which may have a Materially Adverse Effect on any Borrower,
(b) there shall not have occurred any event or series of
events or circumanstances or group of circumstances which
individually or in the aggregate, in the sole judgment of
any Lender, would have a Materially Adverse Effect on any
Borrower, (c) the Agent shall have received a Notice of
Borrowing and (d) the Agent shall have received on or before
the Effective Date the following, each dated as of such day,
in form and substance satisfactory to the Agent, its special
counsel and the Lenders. and (except. for the Notes) in
sufficient copies for each Lender
(1) Agreement. This Agreement, duly executed and
delivered by each Borrower and each other party hereto.
(2) Notes. Each Revolving Credit Note, each Term Note
A, and each Term Note B, dated the Effective Date and duly
executed and delivered by the applicable Borrower.
(3) Organizational Documents. Certified copies of the
articles of incorporation and by-laws and shareholder
agreements, if any, of each Borrower and Guarantor as in
effect on the Effective Date (or a certificate of an
appropriate officer of each Borrower and Guarantor to the
effect that except as disclosed, there have been no
changes to such documents since the date on which they
were last delivered to the Agent pursuant to the Original
Agreement).
(4) Resolutions. Certified copies of all corporate
action, including shareholder approval, if necessary, taken
by each Borrower and Guarantor to authorize the execution,
delivery and performance of the Loan Documents to which each
is a party and the borrowings under this Agreement.
(5) Incumbency Certificates. Certificates of incumbency and
specimen signatures with respect to each of the officers of
each Borrower and Guarantor authorized to execute and
deliver the Loan Documents to which each is a party on
behalf of each Borrower or Guarantor and any other document,
certificate or instrument to be delivered in connection with
the Loan Documents and to request borrowings under this
Agreement.
(6) Mortgages. Copies of each of the Mortgage Amendments
duly executed and delivered by the applicable Borrower
party thereto and evidencing the recording of each such
instrument in the appropriate jurisdiction for the
recording thereof on the Real Estate subject thereto or,
at the option of the Agent, in proper form for recording
in such jurisdiction.
(7) Guarantor Consents. The Guarantor Consents, dated
on or about the Effective Date, duly executed and delivered
by each Guarantor.
(8) Legal Opinion. A signed opinion of Shook, Hardy &
Bacon, counsel for the Borrowers and the Guarantors, in form
and substance satisfactory to the Agent and its counsel and
of such local counsel for the Borrowers and the Guarantors
as may be required, opining as to such matters in connection
with the transactions contemplated by this Agreement as the
Agent or its special counsel may reasonably request.
(9) Officer's Certificate. A certificate of the
President of Xxxxxxx or the Financial Officer stating that,
to the best of his knowledge and based on an examination
sufficient to enable him to make an informed statement,
(A) all of the representations and warranties made or
deemed to be made under this Agreement are true and correct
as of the Effective Date, after giving effect to the
Revoling Credit Loan and the Term Loans to be made at such
time and the application of the proceeds thereof, and
(B) no Default or Event of Default exists.
(10) Disbursement Letter. A letter, conforming to the
requirements of Section 9.8, from the Borrowers'
Representative requesting the initial Revolving Credit Loans
and the Term Loans and specifying the method of
disbursement.
(11) Fees. All of the fees payable on the Effective
Date referred to in this Agreement.
(12) Other Loan Documents. Copies of each of the other
Loan Documents duly executed by the parties thereto with
evidence satisfactory to the Agent and the Lenders and their
respective counsel of the due authorization, binding effect
and enforceability of each such Loan Document on each such
party and such other documents and instruments as the Agent
or any Lender may reasonably request.
(13) No Injunctions, Etc. Evidence that no action,
proceeding, investigation, regulation or legislation shall
have been instituted, threatened or proposed before any
court, governmental agency or legislative body to enjoin,
restrain, or prohibit, or to obtain damages in respect of,
or which is related to or arises out of this Agreement or
the consummation of the transactions contemplated hereby or
which, in the Lenders' absolute discretion, would make it
inadvisable to consummate the transactions contemplated by
this Agreement.
(14) Material Adverse Change. Evidence that, as of the
Effective Date, there shall not have occurred any change
which is materially adverse, in the Lenders' sole
discretion, to the assets, liabilities, businesses,
operations, condition (financial or otherwise) or prospects
of any Borrower from those presented by the unaudited
financial statements of the Borrowers described in Section
6.1(n).
SECTION 52 All Loans; Letters of Credit At the
time of making of each Loan and the issuance of each Letter
of Credit:
(a) all of the representations and warranties made or
deemed to be made under this Agreement shall be true and
correct in all material respects at such time both with and
without giving effect to the Loan to be made at such time
and the application of the proceeds thereof,
(b) the corporate actions of the Borrowers referred to
in Section 5.1(4) above shall remain in full force and
effect and the incumbency of officers shall be as stated in
the certificates of incumbency delivered pursuant to Section
5.1(5)) or as subsequently modified and reflected in a
certificate of incumbency delivered to the Agent, and
(c) each request or deemed request for any borrowing
hereunder shall be deemed to be a certification by the
Borrowers to the Agent and the Lenders as to the matters set
forth in Section 5.2(a) and (b) and the Agent may, without
waiving either condition, consider the conditions specified
in Sections 5.2(a) and (b) fulfilled and a representation by
the Borrowers to such effect made, if no written notice to
the contrary is received by the Agent prior to the making of
the Loan then to be made.
ARTICLE 6.
REPRESENTATIONS AND WARRANTIES OF BORROWERS
SECTION 6.1 Representations and Warranties. The Borrowers
represent and warrant to the Agent and to the Lenders as
follows:
(a) Organization; Power; Qualification. Each Borrower
and each Subsidiary is a corporation, duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation, having the power and
authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted and is
duly qualified and authorized to do business in each
jurisdiction in which the character of its properties or the
nature of its business requires such qualification or
authorization. The jurisdictions in which each Borrower and
each Subsidiary is qualified to do business as a foreign
corporation are listed on Schedule 6.1(a).
(b) Capitalization. The outstanding capital stock of Xxxxxxx
has been duly and validly issued and is fully paid and
nonassessable, and the name and percentage ownership of each
owner of 5% or more of the shares of capital stock of
Xxxxxxx are set forth on Schedule 6.1(b). The issuance and
sale of Xxxxxxx' capital stock have been registered or
qualified under applicable federal and state securities laws
or are exempt therefrom.
(c) Subsidiaries. Schedule 6.1(c) correctly sets forth
the name of each Subsidiary of each Borrower, its
jurisdiction of incorporation, the name of its immediate
parent or parents, and the percentage of its issued and
outstanding securities owned by a Borrower or any other
Subsidiary of a Borrower and indicating whether such
Subsidiary is a Consolidated Subsidiary. Except as set forth
on Schedule 6.1(c),
(i) no Subsidiary of a Borrower has issued any
securities convertible into shares of such Subsidiary's
capital stock or any options, warrants or other rights to
acquire any shares or securities convertible into such
shares,
(ii) the outstanding stock and securities of each
Subsidiary of Xxxxxxx are owned by Xxxxxxx or a Wholly Owned
Subsidiary of Xxxxxxx, or by Xxxxxxx and one or more of its
Wholly Owned Subsidiaries, free and clear of all Liens,
warrants, options and rights of others of any kind
whatsoever, and
(iii) Xxxxxxx has no Subsidiaries.
The outstanding capital stock of each Subsidiary of Xxxxxxx
has been duly and validly issued and is fully paid and
nonassessable by the issuer, and the number and owners of
the shares of such capital stock are set forth on Schedule
6.1(0.
(d) Authorization of Agreement, Notes, Loan Documents
and Borrowing. Each Borrower has the right and power, and
has taken all necessary action to authorize it, to execute,
deliver and perform this Agreement and each of the Loan
Documents in accordance with their respective terms. This
Agreement and each of the Loan Documents have been duly
executed and delivered by the duly authorized officers of
each Borrower and each is, or each when executed and
delivered in accordance with this Agreement will be, a
legal, valid and binding obligation of each Borrower,
enforceable in accordance with its terms.
(e) Compliance of Agreement, Notes, Loan Documents and
Borrowing with Laws. Etc. Except as set forth on Schedule
6.1(e), the execution, delivery and performance of this
Agreement and each of the Loan Documents in accordance with
their respective terms and the borrowings hereunder do not
and will not, by the passage of time, the giving of notice
or otherwise,
(i) require any Governmental Approval or violate any
Applicable Law relating to the Borrowers or any
Subsidiaries,
(ii) conflict with, result in a breach of or constitute
a default under the articles or certificate of incorporation
or by-laws of a Borrower or any Subsidiary,
(iii) conflict with, result in a breach of or constitute a
default under any material provisions of any indenture,
agreement or other instrument to which a Borrower or any
Subsidiary is a party or by which a Borrower, any Subsidiary
or any of such Borrower's or such Subsidiary's property may
be bound or any Governmental Approval relating to such
Borrower or any Subsidiary, or
(iv) result in or require the creation or imposition of
any Lien upon or with respect to any property now owned or
hereafter acquired by a Borrower other than the Security
Interest.
(f) Business. Each Borrower is engaged in the business
described on Schedule 6.1(f).
(g) Compliance with Law: Governmental Approvals.
(i) Except as set forth in Schedule 6.1(g), or
disclosed in any Phase I or Phase II testing reports
provided to the Lenders, each Borrower and each Subsidiary
(A) has all Governmental Approvals, including permits
relating to federal, state and local Environmental Laws,
ordinances and regulations, required by any Applicable Law
for it to conduct its business, each of which is in full
force and effect, is final and not subject to review on
appeal and is not the subject of any pending or, to the
knowledge of any Borrower, threatened attack by direct or
collateral proceeding, and
(B) to the best of the knowledge of the Borrowers, is
in compliance with each Governmental Approval applicable to
it and in compliance with all other Applicable Laws relating
to it, including, without being limited to, all
Environmental Laws and all occupational health and safety
laws applicable to such Borrower, any Subsidiary or their
respective properties,
except for instances of noncompliance which would not,
singly or in the aggregate, cause a Default or Event of
Default or have a Materially Adverse Effect on the
Borrowers taken as a whole and in respect of which
reserves in respect of such Borrower's or such
Subsidiary's reasonably anticipated liability therefor
have been established on the books of the appropriate
Borrower or Subsidiary, as applicable.
(ii) Without limiting the generality of the above,
except as disclosed in writing to the Lenders and the Agent
prior to the Agreement Date,
(A) the operations of each Borrower and each Subsidiary
comply in all material respects with all material applicable
environmental, health and safety requirements of Applicable
Law; and
(B) no Borrower or Subsidiary has received any notice
or written claim to the effect that it is or may be liable
to any Person as a result of the Release or threatened
Release of a Contaminant into the environment.
(iii) Each Borrower has notified the Agent and each
Lender of the receipt by it or by any Subsidiary of any
written notice of a material violation of any Environmental
Laws or occupational health and safety laws applicable to
such Borrower, any Subsidiary or any of their respective
properties.
(h) Title to Properties. Except as set forth in
Schedule 6.1(h), each Borrower and each Subsidiary has valid
and legal title to or leasehold interest in all personal
property, Real Estate and other assets used in its business.
(i) Liens. Except as set forth in Schedule 6.1(i), none
of the properties and assets of any Borrower or any
Subsidiary is subject to any Lien known to or created by any
Borrower, except Permitted Liens. Other than the Financing
Statements, no financing statement under the Uniform
Commercial Code of any State or other instrument evidencing
a Lien which names a Borrower or any Subsidiary as debtor
has been filed (and has not been terminated) in any State or
other jurisdiction, and no Borrower or any Subsidiary has
signed any such financing statement or other instrument or
any security agreement authorizing any secured party
thereunder to file any such financing statement or
instrument, except to perfect those Liens listed on Schedule
6.1(i).
(j) Indebtedness and Guaranties. Schedule 6.1(j) is a
complete and correct listing of all (i) Indebtedness for
Money Borrowed, and (ii) Guaranties of each Borrower and
each Subsidiary. Each Borrower and Subsidiary has performed
and is in compliance with all of the terms of such
Indebtedness and Guaranties and all instruments and
agreements relating thereto, and no default or event of
default, or event or condition which with notice or lapse of
time or both would constitute such a default or event of
default, exists with respect to any such Indebtedness or
Guaranty.
(k) Litigation. Except as set forth on Schedule 6.1(k),
there are no actions, suits or proceedings pending (nor, to
the knowledge of any Borrower, are there any actions, suits
or proceedings threatened, or any reasonable basis therefor)
against or in any other way relating to or affecting a
Borrower or a Subsidiary or any of a Borrower's or any
Subsidiary's properties in any court or before any
arbitrator of any kind or before or by any governmental
body, except actions, suits or proceedings of the character
normally incident to the kind of business conducted by such
Borrower or any Subsidiary which, if adversely determined,
would not singly or in the aggregate have a Materially
Adverse Effect on the Borrowers, and there are no strikes or
walkouts in progress, pending or contemplated relating to
any labor contracts to which a Borrower or any Subsidiary is
a party, relating to any labor contracts being negotiated,
or otherwise.
(l) Tax Returns and Payments. Except as set forth on
Schedule 6.1(l), all United States federal, state and local
as well as foreign national, provincial and local and other
tax rearms of each Borrower and each Subsidiary required by
Applicable Law to be filed have been duly filed, and all
United States federal, state and local and foreign national,
provincial and local and other taxes, assessments and other
governmental charges or levies upon any Borrower or any
Subsidiary or any Borrower's or any Subsidiaofs property,
income, profits and assets which are due and payable have
been paid, except any such nonpayment which is at the time
permitted under Section 9.6. The charges, accruals and
reserves on the books of each Borrower and each Subsidiary
in respect of United States federal, state and local and
foreign national, provincial and local taxes for all fiscal
years and portions thereof since the organization of such
Borrower or Subsidiary, as the case may be, are in the jud
mnent of the Borrowers adequate, and no Borrower knows of
any reason to anticipate any additional assessments for any
of such years which, singly or in the aggregate, might have
a Materially Adverse Effect on any Borrower.
(m) Burdensome Provisions. No Borrower nor any
Subsidiary is a party to any indenture, agreement, lease or
other instrument, or subject to any charter or corporate
restriction, Governmental Approval or Applicable Law not
disclosed to the Lenders in writing, compliance with the
terms of which might have a Materially Adverse Effect on any
Borrower.
(n) [Reserved].
(o) Adverse Change. Since the date of the audited
financial statements of the Borrowers for the Fiscal Year
ended October 3 l, 1997;
(i) no matedal adverse change has occarred in the
business, assets, liabilities, financial condition, results
of operations or business prospects of any Borrower, and
(ii) no event has occured or failed to occur which has
had, or may have, singly or in the aggregate, a Materially
Adverse Effect on any Borrower.
(p) ERISA
(i) No Borrower nor any Related Company maintains or
contributes to any Benefit Plan other than those listed on
Schedule 6.1(p).
(ii) The Borrowers and each other Related Company have
fulfilled all obligations under the minimum funding
standards of and are in compliance in all material respects
with ERISA, and with the Code to the extent applicable to
them and have not incurred any liability to the PBGC or a
Benefit Plan under Title IV of ERISA other than a liability
to the PBGC for premiums under Section 4007 of ERISA. The
Borrowers have no contingent liabilities with respect to any
post-retirement benefits under a Benefit Plan, other than
liability for continuation coverage described in Article 6
of Title I of ERISA. No Borrower is a party to a
Multiemployer Plan.
(q) Absence of Defaults. No Borrower nor any Subsidiary
is in default under its articles or certificate of
incorporation or by-laws and no event has occurred, which
has not been remedied, cured or waived,
(i) which constitutes a Default or an Event of Default, or
(ii) which constitutes, or which with the passage of
time or giving of notice or both would constitute, a default
or event of default by a Borrower or any Subsidiary under
any material agreement (other than this Agreement) or
judgment, decree or order to which such Borrower or any
Subsidiary is a party or by which such Borrower, any
Subsidiary or any of such Borrower's or Subsidiary's
properties may be bound or which would require a Borrower or
any Subsidiary to make any payment under any thereof prior
to the scheduled maturity date therefor, except, in the case
only of any such agreement, for alleged defaults which are
being contested in good faith by appropriate proceedings and
with respect to which reserves in respect of the appropriate
Borrower's or Subsidiary's reasonably anticipated liability
have been established on the books of such Borrower or
Subsidiary.
(r) Accuracy and Completeness of Information.
(i) All written information, reports and other papers
and data produced by or on behalf of any Borrower and
furnished to the Agent or any Lender were, at the time'the
same were so furnished, complete and correct in all material
respects, to the extent necessary to give the recipient a
true and acauate knowledge of the subject matter. No fact is
known to any Borrower which has had, or may in the flitute
have (so far as such Borrower can foresee), a Materially
Adverse Effect upon any Borrower which has not been set
forth in the financial statements or disclosure delivered
prior to the Agreement Date, in each case referred to in
Section 6.1(n), or in such written information, reports or
other papers or data or otherwise disclosed in writing to
the Agent and the Lenders prior to the Agreement Date. No
document furnished or written statement made to the Agent or
any Lender by any Borrower in connection with the
negotiation, preparation or execution of this Agreement or
any of the Loan Documents contains or will contain any
untrue statement of a fact material to the creditworthiness
of any Borrower or omits or will omit to state a material
fact necessary in order to make the statements contained
therein not misleading.
(ii) No Borrower has any reason to believe that any
document furnished or written statement made to the Agent or
any Lender by any Person other than a Borrower in connection
with the negotiation, preparation or execution of this
Agreement or any of the Loan Documents contained any
incorrect statement of a material fact or omitted to state a
material fact necessary in order to make the statements
made, in light of the circumstances under which they were
made, not misleading.
(s) Solvency. In each case after giving effect to the
Indebtedness represented by the Loans to be incurred and,
the transactions contemplated by this Agreement, each
Borrower and each Subsidiary is solvent, having assets of a
fair salable value which exceeds the amount required to pay
its debts as they become absolute and matured (including
contingent, subordinated, unmatured and unliquidated
liabilities), and each Borrower and each Subsidiary is able
to and anticipates that it will be able to meet its debts as
they mature and has adequate capital to conduct the business
in which it is or proposes to be engaged.
(t) Receivables.
(i) Status.
(A) Each Receivable reflected in the computations
included in any Borrowing Base Certificate meets the
criteria enumerated in clauses (a) through (t) of the
definition of Eligible Receivables, except as disclosed in
such Borrowing Base Certificate or as disclosed in a timely
manner in a subsequent Borrowing Base Certificate or
otherwise in writing to the Agent.
(B) No Borrower has any knowledge of any fact or
circumstance not disclosed to the Agent in a Borrowing Base
Certificate or otherwise in writing which would impair the
validity or collectibility of any Receivable of $5,000 or
more or of Receivables which (regardless of the individual
amount thereof) aggregate $50,000 or more.
(ii) Chief Executive Office. The chief executive
office of each Borrower and the books and records relating
to its Receivables are located at the address or addresses
set forth on Schedule 6.1(t) and the Borrowers have not
maintained their chief executive office or books and records
relating to any Receivables at any other address at any time
during the year immediately preceding the Agreement Date
except as disclosed on Schedule 6.1(t).
(u) Inventory.
(i) Schedule of Inventory. All Inventory included in
any Schedule of Inventory or Borrowing Base Certificate
delivered to the Agent and the Lenders pursuant to Section
8.12 meets the criteria enumerated in clauses (a) through
(h) of the definition of Eligible Inventory, except as
disclosed in such Schedule of Inventory or Borrowing Base
Certificate or in a subsequent Schedule of Inventory or
Borrowing Base Certificate, or as otherwise specifically
disclosed in writing to the Agent.
(ii) Condition. All Inventory is in good condition, meets
all standards imposed by any governmental agency, or
department or division thereof, having regulatory authority
over such goods, their use or sale, and is currently either
usable or salable in the normal course of a Borrower's
business, except to the extent reserved against in the
financial statements referred to in Section 6.1(n) or
delivered pursuant to Article 10 or as disclosed on a
Schedule of Inventory delivered to the Agent pursuant to
Section 8.12(b).
(iii) Location. All Inventory is located on the
premises set forth on Schedule 6.1(u) or is Inventory in
transit to one of such locations, except as otherwise
disclosed in writing to the Agent; no Borrower has, in the
last year, located such Inventory at premises other than
those set forth on Schedule 6.1(u).
(v) Equipment. All Equipment is in good order and
repair in all material respects and is located on the
premises set forth on Schedule 6.1(v) and has not been
located at any other location during the last twelve (12)
months.
(w) Real Property. No Borrower owns any Real Estate or
leases any Real Estate other than that described on Schedule
6.1(w).
(x) Corporate and Fictitious Name. Except as otherwise
disclosed on Schedule 6.1(x), during the five-year period
preceding the Agreement Date, no Borrower nor any
predecessor thereof has been known as or used any corporate
or fictitious name other than the corporate name of such
Borrower on the Effective Date.
(y) Federal Reserve Regulations. No Borrower nor any of
its Subsidiaries is engaged and none will engage,
principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing"
or "carrying" any "margin stock" (as each of the quoted
terms is defined or used in Regulations G and U of the Board
of Governors of the Federal Reserve System). No part of the
proceeds of any of the Loans will be used for so purchasing
or carrying margin stock or, in any event, for any purpose
which violates, or which would be inconsistent with, the
provisions of Regulation G, T, U or X of such Board of
Governors. If requested by the Agent or any Lender, each
Borrower will finnish to the Agent and the Lenders a
statement or statements in conformity with the requirements
of said Regulation G, T, U or X to the foregoing effect.
(z) Investment Company Act. No Borrower is an
"investment company" or a company "controlled" by an
"investment company" (as each of the quoted terms is defined
or used in the Investment Company Act of 1940, as amended).
(aa) Employee Relations. Each Borrower and each
Subsidiary has a stable work force in place and is not,
except as set forth on Schedule 6.1(aa), party to any
collective bargaining agreement nor has any labor union been
recognized as the representative of a Borrower's or any
Subsidiary's employees, and no Borrower knows of no pending,
threatened or contemplated strikes, work stoppage or other
labor disputes involving any Borrower's or Subsidiary's
employees.
(bb) Proprietary Rights. Schedule 6.1(bb) sets forth a
correct and complete list of all of the Proprietary Rights.
None of the Proprietary Rights is subject to any licensing
agreement or similar arrangement except as set forth on
Schedule 6.1(bb) or as entered into in the sale or
distribution of a Borrower's Inventory in the ordinary
course of business. To the best of each Borrower's
knowledge, none of the Proprietary Rights infringes on or
conflicts with any other Person's property, and no other
Person's property infringes on or conflicts with the
Proprietary Rights. The Proprietary Rights described on
Schedule 6.1(bb) constitute all of the property of such type
necessary to the current and anticipated future conduct of
the Borrowers' businesses.
(cc) Trade Names. All trade names or styles under which
a Borrower sells Inventory or creates Receivables, or to
which instruments in payment of Receivables are made
payable, are listed on Schedule 6.1(cc).
(dd) Year 2000 Compliance. The Borrowers have (i)
initiated a review and assessment of all areas within the
Borrowers and each of its Subsidiaries' business and
operations (including those affected by suppliers, vendors
and customers) that could be adversely affected by the Year
2000 Problem, (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and
(iii) to date, implemented that plan in accordance with that
timetable. Based on the foregoing, the Borrowers believe
that all computer applications (including those of its
suppliers, vendors and customers) that are material to their
or any of their Subsidiaries' business and operations are
Year 2000 Compliant.
SECTION 6.2 Survival of Representations and
Warranties. Etc. All representations and warranties set
forth in this Article 6 and all statements contained in any
certificate, financial statement or other instrument,
delivered by or on behalf of a Borrower purmant to or in
connection with this Agreement or any of the Loan Documents
(including, but not limited to, any such representation,
warranty or statement made in or in connection with any
amendment thereto) shall constitute representations and
warranties made under this Agreement. All representations
and waranties made under this Agreement shall be made or
deemed to be made at and as of the Agreement Date, at and as
of the Effective Date and at and as ofthe date of each Loan,
except that representations and waranties which, by their
terms are applicable only to one such date, shall be deemed
to be made only at and as of such date. All representations
and warranties made or deemed to be made under this
Agreement shall survive and not be waived by the execution
and delivery of this Agreement, any investigation made by or
on behalf of the Ageni or any Lender or any borrowing
hereunder.
ARTICLE 7.
SECURITY INTEREST
SECTION 7.1 Security Interest.
(a) To secure the payment, observance and performance of
the Secured Obligations, each Borrower hereby mortgages,
pledges and assigns to the Agent, for the benefit of itself
as Agent and the Lenders, all of the Collateral and grants
to the Agent, for the benefit of itself as Agent and the
Lenders, a continuing security interest in and a continuing
Lien upon, all of the Collateral.
(b) As additional security for all of the Secured
Obligations, each Borrower hereby grants to the Agent, for
the benefit of itself as Agent and the Lenders, a security
interest in, and assigns to the Agent, for the benefit of
itself as Agent and the Lenders, all of such Borrowers
fight, tifie and interest in and to, any deposits or other
sums at any time credited by or due from each Lender and
each Affiliate of a Lender to such Borrower, or credited by
or due from any participant of any Lender to such Borrower,
with the same rights therein as if the deposits or other
sums were credited by or due from such Lender. Each Borrower
hereby authorizes each Lender and each Affiliate of such
Lender and each participant to pay or deliver to the Agent,
for the account of the Lenders, without any necessity on the
Agent's or any Lendefts part to resort to other security or
sources of reimbursement for the Secured Obligations, at any
time during the continuation of any Event of Default or in
the event that the Agent, on behalf of the Lenders, should
make demand for payment hereunder and without further notice
to such Borrower (such notice being expressly waived), any
of the aforesaid deposits (general or special, time or
demand, provisional or final) or other sums for application
to any Secured Obligation, irrespective of whether any
demand has been made or whether such Secured Obligation is
mature, and the rights given the Agent, the Lenders, their
Affiliates and participants hereunder are cumulative with
such Person's other rights and remedies, including other
rights of set-off. The Agent will promptly notify the
relevant Borrower of its receipt of any such funds for
application to the Secured Obligations, but failure to do so
will not affect the validity or enforceability thereof. The
Agent may give notice of the above grant of a security
interest in and assignnment of the aforesaid deposits and
other sums, and authorization, to, and make any suitable
arrangements with, any Lender, any such Affiliate of any
Lender or participant for effectuation thereof and each
Borrower hereby irrevocably appoints the Agent as its
attorney to collect any and ail such deposits or other sums
to the extent any such payment is not made to the Agent or
any Lender by such Lender, Affiliate or participant.
SECTION 7.2 Continued Priority of Security Interest
(a) The Security Interest granted by each Borrower shall
at all times be valid, perfected and enforceable against
such Borrower and all third parties in accordance with the
terms of this Agreement, as security for the Secured
Obligations, and the Collateral shall not at any time be
subject to any Liens that are prior to, on a parity with
or junior to the Security Interest, other than Permitted
Liens.
(b) Each Borrower shall, at its sole cost and expense,
take all action that may be necessary or desirable, or that
the Agent may reasonably request, so as at all times to
maintain the validity, perfection, enforceability and rank
of the Security Interest in the Collateral in conformity
with the requirements of Section 7.2(a), or to enable the
Agent and the Lenders to exercise or enforce their rights
hereunder, including, but not limited to:
(i) paying all taxes, assessments and other claims
lawfully levied or assessed on any of the Collateral, except
to the extent that such taxes, assessments and other claims
constitute Permitted Liens,
(ii) obtaining, after the Agreement Date, landlords'
and mortgagees' releases, subordinations or waivers, and
using all reasonable efforts to obtain mechanics' releases,
subordinations or waivers,
(iii) delivering to the Agent, for the benefit of the
Lenders, endorsed or accompanied by such instruments of
assignment as the Agent may specify, and stamping or
marking, in such manner as the Agent may specify, any and
all chattel paper, instruments, letters and advices of
guaranty and documents evidencing or forming a part of the
Collateral,
(iv) executing and delivering financing statements,
pledges, designations, hypothecations, notices and
assignments in each case in form and substance satisfactory
to the Agent relating to the creation, validity, perfection,
maintenance or continuation of the Security Interest under
the Uniform Commercial Code or other Applicable Law, and
(v) executing and delivering, and causing each
depository institution in which each Borrower maintains
deposits of Collateral or proceeds thereof to execute and
deliver, such Agency Account Agreements, Lockbox Agreements
and other instruments, documents and agreements as the Agent
may in its discretion require to comply with the
requirements of Sections 7.2(a) and 8.1(a).
(c) Each Borrower shall at its sole cost and expense
comply with the terms and provisions of each Mortgage to
which it is party and take ail actions that may be necessary
or desirable, or that the Agent may request, so as at ail
times to maintain the validity, perfection, enforceability
and rank of the Security Interest in the Real Estate in
conformity with the requirements of Section 7.2(a) and of
the Mortgages or to enable the Agent to exercise or enforce
its rights hereunder and under the Mortgages. Immediately
upon acquiring, after the Effective Date, title to any Real
Estate having a purchase price or market value in excess of
$100,000, the applicable Borrower shall deliver to the Agent
a mortgage substantially in the form of the Mortgage or
Mortgages theretofore entered into by the Borrowers,
together with, if requested by the Required Lenders, a title
insurance policy insuring the Agent's interest in such Real
Estate in an amount equal to not less than the purchase
price thereof together with an environmental review of such
Real Estate coveting such matters as the Required Lenders
may reasonably request, which review shall be satisfactory
to the Required Lenders.
(d) The Agent is hereby authorized to file one or more
financing or continuation statements or amendments thereto
without the signature of or in the name of each Borrower for
any purpose described in Section 7.2(b). The Agent will give
the relevant Borrower notice of the filing of any such
statements or amendments, which notice shall specify the
locations where such statements or amendments were filed. A
carbon, photographic, xerographic or other reproduction of
this Agreement or of any of the Security Documents or of any
Financing Statement is sufficient as a financing statement.
(e) Each Borrower shall xxxx its books and records as
directed by the Agent and as may be necessary or
appropriate to evidence, protect and perfect the Security
Interest and shah cause its financial statements to reflect
the Security Interest.
ARTICLE 8.
COLLATERAL COVENANTS
Until the Revolving Credit Facility has been
terminated and all the Secured Obligations have been paid in
flail, unless the Required Lenders shall otherwise consent
in the manner provided in Section 15.11:
SECTION 8.1 Collection of Receivables.
(a) Each Borrower will cause all monies, checks, notes,
drafts and other payments relating to or constituting
proceeds of Receivables and of any other Collateral to be
forwarded to the Agent at the Agent's Office on a daily
basis for application in accordance with Section 8.1(b)
below. From and aRer the occurrence of a Default or Event of
Default, at the request of the Required Lenders, each
Borrower will promptly cause aH monies, checks, notes,
drafts and other payments relating to or constituting
proceeds of Receivables and of any other Collateral to be
forwarded to a Lockbox, for deposit in an Agency Account in
accordance with the procedures set out in the corresponding
Agency Account Agreement. In particular, each Borrower will
in such a case:
(i) advise each Account Debtor on trade accounts
receivable to address all remittances with respect to
amounts payable on account thereof to a specified Lockbox,
(ii) advise each other Account Debtor that makes
payment to such Borrower by wire transfer, automated
clearinghouse transfer or similar means to make payment
directly to an Agency Account, and
(iii) stamp all invoices relating to trade accounts
receivable with a legend satisfactory to the Agent
indicating that payment is to be made to such Borrower via a
specified Lockbox
(b) Each Borrower and the Agent shall cause all
receipts to be delivered daily and all collected balances in
Agency Accounts to be transmitted daily by wire transfer,
depository transfer check or other means in accordance with
the procedures set forth in the corresponding Agency Account
Agreement, to the Agent at the Agent's Office:
(i) for application, on account of the Secured Obligations,
as provided in Sections 2.3(c), 12.2, and 12.3, such credits
to be entered as of the day they are received if they are
received Prior to 1:30 p.m. and to be conditioned upon final
payment in cash or solvent credits of the items giving rise
to them, and-provided that, notwithstanding the entry of
such credits on the day they are received, interest on the
Secured Obligations shall be calculated as if such credits
had been received the Business Day next succeeding the
Business Day on which such credits are actually received,
and
(ii) with respect to the balance, so long as no Default
or Event of Default has occurred and is continuing, for
transfer by wire transfer or depository transfer check to a
Controlled Disbursement Account.
(c) Any monies, checks, notes, drafts or other
payments referred to in subsection (a) of this Section 8.1
which are received by or on behalf of a Borrower will be
held in trust for the Agent and will be delivered to the
Agent or a Clearing Bank, as promptly as possible, in the
exact form received, together with any necessary
endorsements for application by the Agent directly to the
Secured Obligations or, if applicable, for deposit in the
Agency Account maintained with a Clearing Bank and
processing in accordance with the terms of the corresponding
Agency Account Agreement.
SECTION 8.2 Verification and Notification. The Agent
shall have the right at any time and from time to time,
(a) in the name of the Agent, the Lenders, or a nominee
thereof or in the name of the relevant Borrower, to verify
the validity, amount or any other matter relating to any
Receivables by mail, telephone, telegraph or otherwise,
(b) to review, audit and make extracts from all records
and files related to any of the Receivables, and
(c) if an Event of Default shall have occurred and be
continuing, to notify the Account Debtors or obligors
under any Receivables of the assignment of tach
Receivables to the Agent, for the benefit of the Lenders,
and to direct such Account Debtor or obligors to make
payment of all amounts due or to become due thereunder
directly to the Agent, for the account of the Lenders,
and, upon such notification and at the expense of the
Borrowers, to enforce collection of any such Receivables
and to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as the
Borrowers might have done.
SECTION 8.3 Disputes, Returns and Adjustments.
(a) In the event any amounts due and owing under any
Receivable for an amount in excess of $250,000 are in
dispute between the Account Debtor and the relevant
Borrower, such Borrower shall provide the Agent with prompt
written notice thereof.
(b) Each Borrower shall notify the Agent promptly of
all returns and credits in excess of $50,000 in respect of
any Receivable, which notice shall specify the Receivable
affected.
(c) Each Borrower may, in the ordinary course of
business unless a Default or an Event of Default has
occurred and is continuing, grant any extension of time for
payment of any Receivable or compromise, compound or settle
the same for less than the full amount thereof, or release
wholly or partly any Person liable for the payment thereof,
or allow any credit or discount whatsoever therein; provided
that no such action results in the reduction of more than
$50,000 in the amount payable with respect to any Receivable
or of more than $250,000 with respect to all Receivables of
the Borrowers in any Fiscal Year (in each case, excluding
the allowance of credits or discounts generally available to
Account Debtors in the ordinary course of each Borrowers
business and appropriate adjustments to the accounts of
Account Debtors in the ordinary course of business).
SECTION 8.4 Invoices.
(a) No Borrower will use any invoices other than
invoices in the form delivered to the Agent prior to the
Agreement Date without giving the Agent 30 days' prior
notice of the intended use of a different form of invoice
together with a copy of such different form.
(b) Upon the request of the Agent, each Borrower shall
deliver to the Agent, at such Borrowers expense, copies of
customers' invoices or the equivalent, original shipping and
delivery receipts or other proof of delivery, customers'
statements, customer address lists, the original copy of all
documents, including, without limitation, repayment
histories and present status reports, relating to
Receivables and such other documents and information
relating to the Receivables as the Agent shall specify.
SECTION 8.5 Delivery lnstruments. In the event any
Receivable is at any time evidenced by a promissory note,
trade acceptance or any other insmmaent for the payment of
money, the relevant Borrower will immediately thereafter
deliver such instrument to the Agent, appropriately endorsed
to the Agent, for the benefit of the Lenders.
SECTION 8.6 Sales of Inventory. All sales of
Inventory will be made in compliance with all requirements
of Applicable Law.
SECTION 8.7 Ownership and Defense of Title.
(a) Except for Permitted Liens and Limited Chassis
Liens, a Borrower shall at all times be the sole owner or
lessee of each and every item of Collateral and shall not
create any Lien on, or sell, lease, exchange, assign,
transfer, pledge, hypothecate, grant a security interest or
security tifie in or otherwise dispose of, any of the
Collateral or any interest therein, except for sales of
Inventory in the ordinary course of business, for cash or on
open account or on terms of payment ordinarily extended to
its customers, and except for dispositions that are
otherwise expressly permitted under this Agreement. The
inclusion of "proceeds" of the Collateral under the Security
Interest shall not be deemed a consent by the Agent or the
Lenders to any other sale or other disposition of any part
or all of the Collateral.
(b) Each Borrower shall defend its title or leasehold
interest in and to, and the Security Interest in, the
Collateral against the claims and demands of all Persons.
SECTION 8.8 Insurance.
(a) The Borrowers shall at all times maintain insurance
on the Inventory and Equipment against loss or damage by
fire, theft (excluding theft by employees), burglary,
pilferage, loss in transit and such other hazards as the
Agent shall reasonably specify, in amounts not to exceed
those obtainable at commercially reasonable rates and under
policies issued by insurers acceptable to the Agent in the
exercise of its reasonable judgment. All premiums on such
insurance shall be paid by the Borrowers and copies of the
policies delivered to the Agent. No Borrower will use or
permit the Inventory or Equipment to be used in violation of
Applicable Law or in any manner which might render
inapplicable any insurance coverage.
(b) All insurance policies required under Section
8.8(a) shall name the Agent, for the benefit of the Lenders,
as an additional insured and shall contain loss payable
clauses in the form submitted to the Borrowers by the Agent,
or otherwise in form and substance satisfactory to the
Required Lenders, naming the Agent, for the benefit of the
Lenders, as mortgagee and loss payee, as its interests may
appear, and providing that
(i) all proceeds thereunder shall be payable to the
Agent, for the benefit of the Lenders,
(ii) no such insurance shall be affected by any act or
neglect of the insurer or owner of the property described in
such policy, and
(iii) such policy and loss payable clauses may be
canceled, amended or terminated only upon at least ten days'
prior written notice given to the Agent.
(c) Any proceeds of insurance referred to in this Section
8.8 which are paid to the Agent, for the account of the
Lenders, shall be, at the option of the Required Lenders
in their sole discretion, either (i) applied to replace
the damaged or destroyed property, or (ii) applied to the
payment or prepayment of the Secured Obligations in such
manner as the Required Lenders shall determine, provided
that in the event that the proceeds from any single
casualty do not exceed $100,000, then, upon the written
request of the Borrowers' Representative to the Agent,
provided that no Default or Event of Default shall have
occurred and be continuing, such proceeds shall be
disbursed by the Agent to the applicable Borrower or
Borrowers pursuant to such procedures as the Agent shall
reasonably establish for application to the replacement
of the damaged or destroyed property.
SECTION 8.9 Location of Offices and Collateral.
(a) No Borrower will change the location of its chief
executive office or the place where it keeps its books and
records relating to the Collateral or change its-name, its
identity or corporate structure without giving the Agent 45
days' prior written notice thereof.
(b) All Inventory, other than Inventory in transit to
any such location, will at all times be kept by each
Borrower at the locations set forth under its name in
Schedule 6.1(u), and shall not be removed therefrom except
pursuant to sales of Inventory permitted under Section
8.7(a) without the prior written consent of the Agent, which
consent shall not be unreasonably withheld if the location
to which such Inventory is to be removed is within the
continental United States and all actions required under
Section 7.2(b) have been taken by the applicable Borrowers.
(c) If any Inventory is in the possession or control of
any of a Borrower's agents or processors, such Borrower
shall notify such agents or processors of the Security
Interest (and shall promptly provide copies of any such
notice to the Agent and the Lenders) and, upon the
occurrence of an Event of Default, shall instruct them (and
cause them to acknowledge such instruction) to hold all such
Inventory for the account of the Lenders, subject to the
instructions of the Agent.
SECTION 8.10 Records Relating to Collateral
(a) Each Borrower will at all times
(i) keep complete and accurate records of Inventory on
a basis consistent with past practices of each Borrower so
as to permit comparison of Inventory records relating to
different time periods, itemizing and describing the kind,
type and quantity of Inventory and such Borrower's cost
therefor and a current price list for such Inventory, and
(ii) keep complete and accurate records of all other
Collateral.
(b) Each Borrower will prepare a physical listing of
all Inventory, wherever located, at least annually.
SECTION 8.11 Inspection The Agent and each Lender (by any
of their officers, employees or agents) shall have the
right, to the extent that the exercise of such right shall
be within the control of a Borrower, at any time or times to
(a) visit the properties of such Borrower and its
Subsidiaries, inspect the Collateral and the other assets of
such Borrower and its Subsidiaries and inspect and make
extracts from the books and records of such Borrower and its
Subsidiaries, including but not limited to management
letters prepared by independent accountants, all during
customary business hours at such premises;
(b) discuss such Borrower's and its Subsidiaries' business,
assets, liabilities, financial condition, results of
operations and business prospects, insofar as the same are
reasonably related to the rights of the Agent or the Lenders
hereunder or under any of the Loan Documents, with such
Borrower's and its Subsidiaries' (i) principal officers,
(ii) independent accountants, and (iii) any other Person
(except that any such discussion with any third parties
shall be conducted only in accordance with the Agent's or
such Lender's standard operating procedures relating to the
maintenance of the confidentiality of confidential
information of borrowers);
(c) verify the amount, quantity, value and condition of, or
any other matter relating to, any of the Collateral
(other than Receivables) and in this connection to
review, audit and make extracts from all records and
files related to any of the Collateral.
Each Borrower will deliver to the Agent, for the benefit of
the Lenders, any instrument necessary for it to obtain
records from any service bureau maintaining records on
behalf of such Borrower.
SECTION 8.12 Information and Reports,
(a) Schedule of Receivables. The Borrowers shall
deliver to the Agent not later than the 20th day of each
calendar month thereafter a Schedule of Receivables which
(i) shall be as of the last Business Day of the
immediately proceding month,
(ii) shall be reconciled to the Borrowing Base
Certificate as of such lasi Business Day, and
(iii) shall set forth a detailed aged trial balance of
all its then existing Receivables, specifying the names,
addresses and balance due for each Account Debtor obligated
on a Receivable so listed.
(b) Schedule of Inventory. The Borrowers shall deliver
to the Agent not later than the 20th day of each calendar
month thereafter a Schedule of Inventory as of the last
Business Day of the immediately preceding calendar month,
itemizingg and describing the kind, type and quantity of
Inventory, the relevant Borrower's cost thereof and the
location thereof, provided, that raw material need not be
included in such Schedule more often than monthly.
(c) Chassis Status Report The Borrowers shall cooperate
with the Trustee and shall assure that the Trustee is able
to provide to the Agent, in accordance with the Trust
Agreement, not later than the third day of each calendar
week a report, accompanied by copies of the underlying
documents to the extent requested by the Agent, of all
manufacturers' certificates or statements of origin and
other title documents relating to motor vehicle chassis and
motor vehicles held by such Trustee as of the close of
business on the last Business Day of the immediately
preceding calendar week.
(d) Borrowing Base Certificate. The Borrowers shall
deliver to the Agent on the third day of each calendar week
prepared as of the close of business on the last Business
Day of the immediately preceding calendar week, (i) a
Borrowing Base Certificate for each Borrower and (ii) a
consolidated Borrowing Base Certificate for all Borrowers;
provided, however, that so long as Availability is
$2,500,000 or more such Borrowing Base Certificate shall be
delivered to the Agent on or before the 20th day of each
month and be prepared as of the close of business on the
last day of the immediately preceding calendar month.
(e) Notice of Diminution of Value. Each Borrower shall
give prompt notice to the Agent of any matter or event which
has resulted in, or may result in, the diminution in excess
of $150,000 in the value of any of its Collateral, except
for any such diminution in the value of any Receivables or
Inventory in the ordinary course of business which has been
appropriately reserved against, as reflected in financial
statements previously delivered to the Agent and the Lenders
pursuant to Article 10.
(f) Additional Information. The Agent may in its
discretion from time to time request that the Borrowers
deliver the schedules and certificates described in Sections
8.12(a), (b), (c) and (d) more or less often and on
different schedules than specified in such Sections and the
Borrowers will comply with such requests. The Borrowers will
also furnish to the Agent and each Lender such other
information with respect to the Collateral as the Agent or
such Lender may from time to time reasonably request.
SECTION 8.13 Power of Attorney. Each Borrower hereby
appoints the Agent as its attorney, with power
(a) to endorse the name of such Borrower on any checks,
notes, acceptances, money orders, drafts or other forms of
payment or security that may come into the Agent's or any
Lender's possession, and
(b) to sign the name of such Borrower on any invoice or
xxxx of lading relating to any Receivable, Inventory or
other Collateral, on any drafts against customers related to
letters of credit, on schedules and assignments of
Receivables furnished to the Agent or any Lender by such
Borrower, on notices of assignment, Financing Statements and
other public records relating to the perfection or priority
of the Security Interest, and verifications of account and
notices to or from customers.
SECTION 8.14 Assignment of Claims Act. Upon the
request of the Agent, a Borrower shall execute any documents
or instruments and shall take such steps or actions
reasonably required by the Agent so that all monies due or
to become due under any contract with the United States of
America, the District of Columbia or any state, county,
municipality or other domestic or foreign governmental
entity, or any department, agency or instrumentality
thereof; will be assigned to the Agent, for the benefit of
itself and the Lenders, and notice given thereof in
accordance with the requirements of the Assignment of Claims
Act of 1940, as amended, or any other laws, rules or
regulations relating to the assignment of any such contract
and monies due or to become due to any Borrower.
SECTION 8.15 Equipment. The Borrowers shall keep and
maintain the Equipment in good operating condition and
repair. The Borrowers shall not permit any of the Equipment
to become a fixture to any Real Estate unless subordination
agreements or waivers satisfactory to the Agent are obtained
from any owner or mortgagee of such Real Estate. Immediately
on demand therefor by the Agent, the Borrowers shall deliver
to the Agent any and all evidence of ownership of any of the
Equipment. If any Equipment is subject to a certificate of
title at any time, the Borrowers shall deliver such
certificate of title to the Agent, together with such
documents as are necessary to cause the Security Interest to
be noted thereon. None of the Equipment shall be sold,
transferred, leased or otherwise disposed of without the
prior written consent of the Agent, except for (a) sales or
dispositions of obsolete Equipment, and (b) sales or
dispositions of Equipment that is contemporaneously replaced
with Equipment of comparable value and utility; provided,
however, that the Borrowers shall not sell or dispose of any
Equipment specifically financed by the Lenders unless the
Borrowers repay the outstanding balance of the extension of
credit relating to such Equipment.
ARTICLE 9.
AFFIRMATIVE COVENANTS
The Borrowers jointly and severally covenant and
agree that the Borrowers will duly and punctually pay the
principal of, and interest on, the Notes and all other
Secured Obligations in accordance with the terms of the Loan
Documents and that until the Revolving Credit Facility has
been terminated and all the Secured Obligations have been
paid in full, unless the Required Lenders shall otherwise
consent in the manner provided for in Section 15.11, each
Borrower will, and will cause each Subsidiary to:
SECTION 9.1 Preservation of Corporate, Existence and Similar
Matters. Preserve and maintain its corporate existence,
rights, franchises, licenses and privileges in the
jurisdiction of its incorporation and qualify and remain
qualified as a foreign corporation and authorized to do
business in each jurisdiction in which the character of its
properties or the nature of its business requires such
qualification or authorization.
SECTION 9.2 Compliance with Applicable Law. Comply
in all material respects with all Applicable Law relating to
such Borrower or such Subsidiary.
SECTION 9.3 Maintenance of Property. In addition
to, and not in derogation of, any requirements contained
elsewhere in the Loan Documents,
(a) protect and preserve all properties material to its
business, including copyrights, patents, trade names and
trademarks, and maintain in good repair, working order and
condition in all materiai respects, with reasonable
allowance for wear and tear, all tangible properties, and
(b) from time to time make or cause to be made all
needed and appropriate repairs, renewals, replacements and
additions to such properties necessary for the conduct of
its business, so that the business carried on in connection
therewith may be properly and advantageously conducted at
all times.
SECTION 9.4 Conduct of Business. At all times
carry, on its business in an efficient manner and engage
only the business applicable to it described in Section
6.1(f)
SECTION 9.5 Insurance. Maintain, in addition to
the coverage required by Section 8.8 and the Security
Documents, insurance with responsible insurance companies
agaiqtst such risks and-in such amounts as is customarily
maintained by similar businesses or as may be required by
Applicable Law, and from time to time deliver to the Agent
or any Lender upon its request, a detailed list of the
insurance then in effect, stating the names of the insurance
companies, the amounts and rates of the insurance, the dates
of the expiration thereof and the properties and risks
covered thereby.
SECTION 9.6 Payment of Taxes and Claims. Pay or discharge when due
(a) all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or
profits or upon any properties belonging to it, except
that real property ad valorem taxes shall be deemed to
have been so paid or discharged if the same are paid
before they become delinquent, and
(b) all lawful claims of materialmen, mechanics,
carriers, warehousemen and landlords for labor,
materials, supplies and rentals which, if unpaid, might
become a Lien on any properties of a Borrower,
except that this Section 9.6 shall not require the payment
or discharge of any such tax, assessment, charge, levy or
claim which is being contested in good faith by appropriate
proceedings and for which reserves in respect of the
reasonably anticipated liability therefor, if any, have been
appropriately established to the extent required by GAAP.
SECTION 9.7 Accounting Methods and Financial
Records, Maintain a system of accounting, and keep such
books, records and accounts (which shall be tree and
complete), as may be required or as may be necessary to
permit the preparation of financial statements in accordance
with GAAP.
SECTION 9.8 Use of Proceeds
(a) Use the proceeds of all Loans only for working
capital and general business purposes, including paying the
purchase price of any permitted Acquisition, and
(b) not use any part of such proceeds to purchase or,
to carry or reduce or retire or refinance any credit
incurred to purchase or carry, any margin stock (within the
meanin8 of Regulation G or U of the Board of Governors of
the Federal Reserve System) or, in any event, for any
purpose which would involve a violation of such Regulation G
or U or of Regulation T or X of such Board of Governors, or
for any purpose prohibited by law or by the terms and
conditions of this Agreement.
SECTION 9.9 Hazardous Waste and Substances; Environmental
Requirements.
(a) In addition to and not in derogation of, the
requirements of Section 9.2 and of the Security Documents,
comply with all Environmental Laws and all Applicable Laws
relating to occupational health and safety (except for
instances of noncompliance that are being contested in good
faith by appropriate proceedings if reserves in respect of
such Borrower's or such Subsidiary's reasonably anticipated
liability therefor have been appropriately established),
promptly notify the Agent of its receipt of any written
notice of a material violation of any such Environmental
Laws or other such Applicable Laws, and indemnify and hold
the Agent and the Lenders harmless from all loss, cost,
damage, liability claim and expense incurred by or imposed
upon the Agent or any Lender on account of any Borrower's
failure to perform its obligations under this Section 9.9.
(b) Whenever such Borrower gives notice to the Agent
pursuant to this Section 9.9 with respect to a matter that
reasonably could be expected to result in liability to a
Borrower in excess of $50,000 in the aggregate, such
Borrower shall, at the Agent's request and such Borrower's
expense (i) cause an independent environmental engineer
acceptable to the Agent to conduct an assessment, including
tests where necessary, of the site where the noncompliance
or alleged noncompliance with Environmental Laws has
occurred and prepare and deliver to the Agent a report
setting forth the results of such assessment, a proposed
plan to bring such Borrower into compliance with such
Environmental Laws (if such assessment indicates
noncompliance) and an estimate of the costs thereof, and
(ii) provide to the Agent a supplemental report of such
engineer whenever the scope of the noncompliance, or the
response thereto or the estimated costs thereof, shall
materially adversely change.
SECTION 9.10 Year 2000. The Borrowers will
promptly notify the Agent in the event the Borrowers
discover or determine that any computer application
(including those of its suppliers, vendors and customers)
that is material to their or any of their Subsidiarie's
business and operations will not be Year 2000 Compliant.
SECTION 9.11 Execution of Subsidiary Guaranties. The
Borrowers, upon the request of the Agent or any Lender,
shall cause any Subsidiary which has not entered into a
Guaranty Agreement or a Guarantor Security Agreement to
execute and deliver to the Agent such a Guaranty Agreement
and a Cmarantor Security Agreement and appropriate financing
Statements all in form and substance satisfactory to the
Agent and the Required Lenders.
ARTICLE 10.
INFORMATION
Until the Revolving Credit Facility has been
terminated and all the Secured Obligations have been paid in
full, unless the Required Lenders shall otherwise consent in
the manner set forth in Section 15.11, the Borrowers will
furnish to the Agent and to each Lender at the offices then
designated for such notices pursuant to Section 15.1:
SECTION 10.1 Financial Statements.
(a) Audited Year-End Statements. As soon as available, but
in any event within 90 days at~er the end of each Fiscal
Year, copies of the consolidating and consolidated balance
sheets of Xxxxxxx and its Consolidated Subsidiaries as at
the end of such Fiscal Year and the related statements of
consolidated income, shareholders' equity and cash flows for
such Fiscal Year, in each case setting forth in comparative
form the figures for the previous Fiscal Year, reported on,
as to such consolidated statements, without qualification as
to the scope of the audit or the status of any Borrower as a
"going concern," by independent certified public accountants
of nationally recognized standing; and
(b) Monthly Financial Statements. As soon as available
after the end of each calendar month, but in any event
within 30 days after the end of each calendar month, unless
such month is the last month of a fiscal quarter of the
Borrowers, and then within 45 days aider the end of such
calendar month, copies of the unaudited consolidated balance
sheet of Xxxxxxx and its Consolidated Subsidiaries as at the
end of such month and the related unaudited consolidated
statements of income and cash flows for Xxxxxxx and its
Consolidated Subsidiaries for such month and for the portion
of the Fiscal Year through such month, certified by the
Financial Officer as presenting fairly the financial
condition and results of operations of Xxxxxxx and its
Consolidated Subsidiaries (subject to normal year-end audit
adjustments);
all such financial statements to be complete and correct in
all material respects and prepared in accordance with GAAP
(except, with respect to interim financial statements, for
the omission of notes and for the effect of normal year-end
audit adjustments) applied consistently throughout the
periods reflected therein.
SECTION 10.2 Accountants' Certificate. Together
with the financial statements referred to in Section 10.1
(a), the Borrowers shall deliver a certificate of such
accountants addressed to the Borrowers, which restricts the
use of the certificate to the Borrowers and the Agent and
the Lenders as parties to this Agreement, together with an
attachment setting forth the calculations required by
Sections 11.1, 11.2, 11.6, 11.11 and 11.12, as at the date
of such financial statements, prepared by Xxxxxxx, stating
that in connection with their, audit, nothing came to their
attention that caused them to believe that (i) the Borrowers
were not in compliance with any of the terms, covenants,
provisions or conditions of Articles 10 and 11 (except
Sections 10.5(a), 10.5(c), 10.5(d), 10.6(d), 11.3 and
11.14), or (ii) that the information contained in the
attachment is not fairly stated in all material respects, in
relation to the financial statements from which it has been
derived.
SECTION 10.3 Officer's Certificate. At the time
that the Borrowers furnish the financial statements pursuant
to Section 10.1(b) for any month that is the last month of a
fiscal quarter of the Borrowers, the Borrowers shall also
furnish a Quarterly Compliance Certificate of the Financial
Officer
(a) setting forth as at the end of such fiscal quarter
or Fiscal Year, as the case may be, the calculations
required to establish whether or not the Borrowers were in
compliance with the requirements of Sections 11.1, 11.2,
11.6, 11.11 and 11.12, as at the end of each respective
period,
(b) stating that the information on the schedules to this
Agreement are complete and accurate as of the date of such
certificate or, if such is not the case, attaching to such
certificate updated schedules, and
(c) stating that, based on a reasonably diligent
examination, no Default or Event of Default exists, or, if
such is not the case, specifying such Default or Event of
Default and its nature, when it occurred, whether it is
continuing and the steps being taken by.the Borrowers with
respect to such Default or Event of Default.
SECTION 10.4 Copies of Other Reports.
(a) Promptly upon receipt thereof, copies of all
reports, if any, submitted to a Borrower or its Board of
Directors by its independent public accountants, including,
without limitation, any management report.
(b) As soon as practicable, copies of all financial
statements and reports that Xxxxxxx shall send to its
shareholders generally and of all registration statements
and all regular or periodic reports which Xxxxxxx or any
other Borrower shall file with the Securities and Exchange
Commission or any successor commission.
(c) From time to time and as soon as reasonably
practicable following each request, such forecasts, data,
certificates, reports, statements, opinions of counsel,
documents or further information regarding the business,
assets, liabilities, financial condition, results of
operations or business prospects of the Borrowers, the
Guarantors or any Subsidiary as the Agent or any Lender may
reasonably request and that the Borrowers have or (except in
the case of legal opinions relating to the perfection or
priority of the Security Interest) without unreasonable
expense can obtain; provided, however, that the Lenders
shall, to the extent reasonably practicable, coordinate
examinations of the Borrowers' records by their respective
internal auditors. The rights of the Agent and the Lenders
under this Section 10.4 are in addition to and not in
derogation of their rights under any other provision of this
Agreement or of any other Loan Document.
(d) if requested by the Agent or any Lender, the
Borrowers will furnish to the Agent and the Lenders
statements in conformity with the requirements of Federal
Reserve Form G-3 or U-1 referred to in Regulation G and U,
respectively, of the Board of Governors of the Federal
Reserve System.
SECTION 10.5 Notice of Litigation and Other Matters. Prompt
notice of.
(a) the commencement, to the extent any Borrower is
aware of the same, of all proceedings and investigations by
or before any governmental or nongovernmental body and all
actions and proceedings in any court or before any
arbitrator against or in any other way relating to or
affecting any Borrower, any Subsidiary or any Borrower's or
Subsidiary's properties, assets or businesses, which is
reasonably likely to, singly or in the aggregate, result in
the occurrence of a Default or an Event of Default, or have
a Materially Adverse Effect on the Borrowers, taken as a
whole,
(b) any amendment of the articles of incorporation or
by-laws of a Borrower or any of Subsidiary,
(c) any change in the business, assets, liabilities,
financial condition, results of operations or business
prospects of any Borrower or any Subsidiary which has had or
may have, singly or in the aggregate, a Materially Adverse
Effect on the Borrowers taken as a whole and any change in
the executive officers of any Borrower, and
(d) any Default or Event of Default or any event which
constitutes or which with the passage of time or giving of
notice or both would constitute a default or event of
default by a Borrower or any Subsidiary under any material
agreement (other than this Agreement) to which any Borrower
or any Subsidiary is a party or by which any Borrower, any
Subsidiary or any Borrowers or Subsidiary's properties may
be bound and is reasonably likely to result in an event
described in subsection (c) hereof.
SECTION 10.6 ERISA. Promptly notify the Agent of
(a) the occurrence of any Reportable Event with respect
to a Benefit Plan, other than any such event as to which the
PBGC has waived notice by regulation,
(b) receipt of any notice from the PBGC of its
intention to seek termination of any Benefit Plan or
appointment of a trustee therefor,
(c) any Borrower's intention to terminate or withdraw
from an Benefit Plan, and
(d) the occurrence of any event with respect to any
Benefit Plan which could result in the incurrence by any
Borrower of any material liability, fine or penalty, or any
material increase in the contingent liability of any
Borrower with respect to any post-retirement Benefit Plan
benefit.
SECTION 10.7 Accuracy of Information. All
written information, reports, statements and other papers
and data furnished to the Agent or any Lender by or on
behalf of any Borrower, whether pursuant to this Article 10
or any other provision of this Agreement or of any other
Loan Document, shall be, at the time the same is so
furnished, to the best knowledge of the Borrowers, complete
and correct in all material respects to the extent necessary
to give the Agent and the Lenders true and accurate
knowledge of the subject matter thereof.
SECTION 10.8 Revisions or Updates to Schedules.
Should any of the information or disclosures provided on any
of the Schedules originally attached hereto become outdated
or incorrect in any material respect, the Borrowers shall
deliver to the Agent and the Lenders as part of the
officer's certificate required pursuant to Section 10.3 such
revisions or updates to such Schedule(s) as may be necessary
or appropriate to update or correct such Schedule(s),
provided that no such revisions or updates to any
Schedule(s) shall be deemed to have amended, modified or
superseded such Schedule(s) as originally attached hereto,
or to have cured any breach of warranty or repregentation
resulting from the 'umccuracY or incompleteness of any such
Schedule(s), unless and until the Required Lenders in their
sole and absolute discretion, shall have accepted in writing
such revisions or updates to such Schedule(s).
ARTICLE 11.
NEGATIVE COVENANTS
Until the Revolving Credit Facility has been
terminated and all the Secured Obligations have been paid in
full, unless the Required Lenders shall otherwise consent in
the manner set forth in Section 15.11, the Borrowers will
not directly or indirectly and, in the case of Sections 11.2
through 11.16, will not permit their respective Subsidiaries
to:
SECTION 11.1 Financial Ratios. Permit:
(a) Minimum Consolidated Tangible Net Worth. Consolidated
Tangible Net Worth of Xxxxxxx and its Consolidated
Subsidiaries to be less than (i) $7,750,000 at any time from
and after the Original Effective Date to and including
October 30, 1995, (ii) $8,250,000 at any time from and after
October 31, 1995 to and including October 30, 1996, (ii)
$8,750,000 at any time from and after October 31, 1996 to
and including October 30, 1997, (iv) $9,250,000 at any time
from and after October 31, 1997 to and including October 30,
1998, (v) $15,000,000 at anytime from and after October 31,
1998 to and including October 30, 1999, and (vi) during each
period from October 31 of a year. through October 30 of the
following year thereafter, the sum of the amount required
under this Section ll.l(a) for the immediately preceding
such period and $1,000,000.
(b) Leverage Ratio. The Leverage Ratio at any time
during any period set forth below to be greater than the
ratio set forth opposite such period:
Period Ratio
Original Effective Date 5.0 to 1.0
through October 30, 1995
October 31, 1995 through 4.5 to 1.0
October 30, 1996
October 31, 1996 and 4.0 to 1.0
thereafter
(c) Minimum Current Ratio. The ratio of the
consolidated Current Assets of Xxxxxxx and its Consolidated
Subsidiaries to consolidated Current Liabilities of Xxxxxxx
and its Consolidated Subsidiaries at any time from and after
the Original Effective Date to be less than 1.2 to 1.
(d) Fixed Charge Coverage Ratio. As of the end of any
calendar month, the Fixed Charge Coverage Ratio for the
twelve-month period ending with such month to be less than
1.20 to 1 during the period from the Original Effective Date
through October 31, 1995 and to be less than 1.25 to 1.0
thereat, er.
(e) Minimum Availability. The Availability at any
time from and after the Original Effective Date to be
less than $1,000,000.
SECTION 11.2 Indebtedness for Money Borrowed.
Create, assume, or otherwise become or remain obligated in
respect of; or permit or suffer to exist or to be created,
assumed or incurred or to be outstanding any Indebtedness
for Money Borrowed, except that this Section 11.2 shall not
apply to:
(a) Indebtedness of the Borrowers for Money
Borrowed represented by the Loans and the Notes,
(b) Indebtedness for Money Borrowed reflected on
Schedule 6.1(j), excluding any such Indebtedness that is to
be paid in full on the Effective Date,
(c) Permitted Purchase Money Indebtedness,
(d) Indebtedness of the Borrowers for Money Borrowed
owed to another Borrower,
(e) Indebtedness of one or more Guarantors to one or
more Borrowers, not exceeding $10,000 in the aggregate at
any one time outstanding,
(f) IRB Letter of Credit Obligations,
(g) IRB Obligations,
(h) Indebtedness for Money Borrowed under the Guaranty
Agreements; and
(i) other Indebtedness for Money Borrowed not to exceed
$250,000 in outstanding principal amount as to all Borrowers
and their Subsidiaries.
SECTION 11.3 Guaranties. Become or remain liable
with respect to any Guaranty of any obligation of any other
Person, other than (i) Indebtedness of other Borrowers or
Subsidiaries permitted under this Agreement, and (ii)
Guaranties of residual values of Inventory sold to third
party lessors for lease to customers of a Borrower.
SECTION 11.4 Investments. After the Agreement
Date, acquire or maintain any Investment other than
Permitted Investments.
SECTION 11.5 Acquisitiom. Accluke any Business
Unit engaged in any business other than those described on
Schedule 6.1(f), or acquire any other Business Unit except
by the purchase of assets thereof in an aggregate amount not
to exceed $500,000 at any time for all Borrowers.
SECTION 11.6 Capital Expenditures. Make or incur any Capital
Expenditures in excess of $2,500,000 in the aggregate for
all Borrowers in any Fiscal Year; provided, however, that
amounts paid or incurred by the Borrower in connection with
the foreclosure of the a certain note receivable made. by
Xxxxxxx Soilars and the acquisition of any real property
securing such note receivable, shall not constitute Capital
Expenditures for purposes of this Section 11.6 and
expenditures in connection with any IRB Project shall not
constitute Capital Expenditures for purposes of this Section
11:6.
SECTION 11.7 Restricted Payments; Purchases, Etc.
Declare or make any Restricted Payment or Restricted
Purchase, except that, Xxxxxxx may pay dividends on its
common stock during any Fiscal Year and repurchase shares of
its outstanding common stock for an aggregate purchase price
of up to $2,000,000 during any 12 consecutive month period,
so long as both at the time of the declaration and at the
time of the payment thereof; and after giving effect
thereto, no Default or Event of Default shall or would
exist.
SECTION 11.8 Merger, Consolidation and Sale of
Assets. Merge or consolidate with any other Person or sell,
lease or transfer or otherwise dispose of ail or a
substantial portion of its assets to any Person other than
sales of Inventory in the ordinary course of business.
SECTION 11.9 Transactions with Affiliates. Effect
any transaction with any Affiliate on a basis less favorable
to such Borrower or Subsidiary than would be the case if
such transaction had been effected with a Person not an
Affiliate.
SECTION 11.10 Liens. Create, assume or permit or
suffer to exist or to be created or assumed any Lien on any
of the Collateral or its other assets, other than Permitted
Liens and Iimited Chassis Liens.
SECTION 11.11 Capitalized Lease Obligations.
Without the consent of the Required Lenders, which consent
shall not be unreasonably withheld, incur or permit to exist
any Capitalized Lease Obligations if such Capitalized Lease
Obligation when added to existing Capitalized Lease
Obligations and Permitted Purchase Money Indebtedness
(excluding IRB Obligations) of the Borrowers would exceed
$250,000 in the aggregate.
SECTION 11.12 Operating Leases. Without the
consent of the Required Lenders, enter into any Operating
Lease if the aggregate annual rental payable under all
Operating Leases of the Borrowers would exceed $500,000 at
any time after the Effective Date.
SECTION 11.13 Real Estate Leases. After the
Effective Date, enter into any real property lease (other
than an IRB Lease), including any renewal or modification of
a lease relating to the Real Estate occupied by the
Borrowers on the Effective Date, if the aggregate annual
rental under all such leases of the Borrowers would exceed
$100,000, without the prior written consent of the Agent, on
behalf of the Lenders, which consent shall not be
unreasonably withheld.
SECTION 11.14 Plans. Permit any condition to exist
in connection with any Plan which might constitute grounds
for the PBGC to institute proceedings to have such Plan
terminated or a trustee appointed to administer such Plan,
and any other condition, event or transaction with respect
to any Plan which could result in the incurrence by any
Borrower of any material liability, fine or penalty.
SECTION 11.15 Sales and Leasebacks. Enter into any
arrangement with any Person providing for a Borrowegs
leasing from such Person any real or personal property which
has been or is to be sold or transferred, directly or
indirectly, by such Borrower to such Person.
ARTICLE 12.
DEFAULT
SECTION 12.1 Events of Default Each of the
following shall constitute an Event of Default, whatever the
reason for such event and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant
to any judgment or order of any court or any order, rule or
regulation of any governmental or nongovernmental body:
(a) Default in Payment. The Borrowers shall default in
the payment, as and when due, of principal of or interest on
any Secured Obligations (whether at maturity, by reason of
acceleration or otherwise).
(b) Misrepresentation. Any representation or warranty
made or deemed to be made by any Borrower under this
Agreement or any Loan Document, or any amendment hereto or
thereto, shall at any time prove to have been incorrect or
misleading in any material respect when made.
(c) Default in performance. Any Borrower shall default in
the performance or of any term, covenant, condition or
agreement to be performed by it, contained in
(i) Articles 7, 8, 10 or 11, Sections 9.1 (insofar as
it requires the preservation of the corporate existence of
such Borrower), or 9.8, and the Agent shall have delivered
to the Borrowers written notice of such default, or
(ii) this Agreement (other than as specifically
provided for otherwise in this Section 12.1) and such
default shall continue for a period of 30 days after written
notice thereof has been given to the Borrowers by the Agent.
(d) Indebtedness Cross-Default.
(i) Any Borrower or any Subsidiary shall fail to pay
when due and payable the principal of or interest on any
Indebtedness for Money Borrowed (other than the Loans) in an
amount in excess of $300,000, or
(ii) the maturity of any such Indebtedness shall have
(A)been accelerated in accordance with the provisions of any
indenture, conicact or instrument providing for the creation
of Or concerning such Indebtedness, or (B) been required to
be prepaid prior to the stated maturity thereof, or
(iii) any event shall have occurred and be continuing which
would permit any.holder or holders of such Indebtedness, any
trustee or agent acting on behalf of such holder or holders
or any other Person so to accelerate such maturity, and the
Borrowers shall have failed to cure such default prior to
the expiration of any applicable cure or grace period.
(e) Other Cross-Defaults. Any Borrower or any of its
Subsidiaries shall default in the payment when due, or in
the performance or observance, of any obligation or
condition of any agreement, contract or lease (other than
this Agreement, the Security Documents or any such
agreement, contract or lease relating to Indebtedness for
Money Borrowed) if the existence of any such defaults,
singly or in the aggregate, could in the reasonable judgment
of the Agent have a Materially Adverse Effect on any
Borrower.
(f) Voluntary Bankruptcy Proceeding. Any Borrower or
any Subsidiary shall
(i) commence a voluntary case under the federal
bankruptcy laws (as now or hereafter in effect),
(ii) file a petition seeking to take advantage of any
other laws, domestic or foreign, relating to bankruptcy,
insolvency, reorganization, winding up or composition for
adjustment of debts,
(iii) consent to or fail to contest in a timely and
appropriate manner any petition filed against it in an
involuntary case under such bankruptcy laws or other laws,
(iv) apply for or consent to, or fail to contest in a
timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or
liquidator of itself or of a substantial part of its
property, domestic or foreign,
(v) admit in writing its inability to pay its debts as they
become due,
(vi) make a general assignment for the benefit of creditors,
or
(vii) take any corporate action for the purpose of
authorizing any of the foregoing.
(g) Involuntary Bankruptcy Proceeding. A case or other
proceeding shall be commenced against any Borrower or any
Subsidiary in any court of competent jurisdiction seeking
(i) relief under the federal bankruptcy laws (as now or
hereaider in effect) or under any other laws, domestic or
foreign, relating to banktuptcy, insolvency, reorganization,
winding up or adjustment of debts, or
(ii) the appointment of a trustee, receiver, custodian,
liquidator or the like of such Borrower or Subsidiary or of
all or any substantial part of the assets, domestic or
foreign, of such Borrower or Subsidiary, and such case or
proceeding shall continue undismissed or unstayed for a
period of 60 consecutive calendar days, or an order granting
the relief requested in such rtase or proceeding against
such Borrower or Subsidiary (including, but not limited to,
an order for relief under such federal bankruptcy laws) shah
be entered.
(h) Failure of Agreements. Any Loan Document, after
delivery thereof hereunder, shall for any reason (except to
the extent permitted by the terms thereof) cease to create a
valid and perfected first priority Lien (except for
Permitted Liens) on, or Security Interest in, any of the
Collateral or Guarantor Collateral purported to be covered
thereby (other than by reason of any act or omission of the
Agent or any Lender).
(i) Judgment. Final, unappealable judgments or orders
for the payment of money not covered by insurance and in an
aggregate amount greater than $300,000 for all Borrowers
shah be entered against any Borrower by any court and such
judgment or order shah continue undischarged or unstayed for
10 days.
(j) Attachment. A warrant or writ of attachment or
execution or similar process which exceeds $50,000 in value
shall be issued against any property of any Borrower and
such warrant or process shall continue undischarged or
unstayed for 10 days.
(k) Loan Documents. Any event of default under any
other Loan Document shall occur or any Borrower shall
default in the performance or observance of any term,
covenant, condition or agreement contained in, or the
payment of any other sum covenanted to be paid by such
Borrower under, any Loan Document; provided, however that no
event of default under any Loan Document shall be deemed to
have occured until any notice required under such Loan
Document has been given and any grace period granted under
such Loan Document has expired.
(1) ERISA. The Borrowers shall fail to pay when due an
amount or amounts aggregating in excess of $300,000 which
they shall have become liable to pay to the PBGC or to a
Benefit Plan under Title IV of ERISA; or notice of intent to
terminate a Benefit Plan or Benefit Plans having aggregate
unfunded vested liabilities in excess of $300,000 shall be
filed under Title IV of ERISA by the Borrowers, or any plan
administrator, or the PBGC shall institute proceedings under
Title IV of ERISA to terminate any Benefit Plan or to cause
a trustee to be appointed to administer any Benefit Plan or
to enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within thirty (3)
days thereafter, or a condition shah exist by reason of
which the PBGC would be entitled to obtain a decree
adjudicating that any Benefit Plan must be terminated.
(m) Management. Xxxxxx X. Xxxxxxx, Xx. shall cease to be
actively involved in the management and operations of the
Borrowers in substantially the same capacity in which he
served on the Agreement Date and his successor(s) or
replacement(s) in such capacity are not. executives
experienced in managing operations such as those of the
Borrowers, with the demonstrated ability to manage such
operations successfully, who are otherwise acceptable to the
Required Lenders in the exercise of their reasonable
judgment.
SECTION 12.2 Remedies.
(a) Automatic Acceleration and Termination of
Facilities. Upon the occurrence of an Event of Default
specified in Section 12.1(f) or (g), (i) the principal of
and the interest on the Loans and Notes at the time
outstanding, and all other amounts owed to the Agent or the
Lenders under this Agreement or any of the Loan Documents
and all other Secured Obligations, shall thereupon become
due and payable without presentment, demand, protest, or
other notice of any kind, all of which are expressly waived,
anything in this Agreement or any of the Loan Documents to
the contrary notwithstanding, and (ii) the Revolving Credit
Facility and the right of the Borrowers to request
borrowings under this Agreement shall immediately terminate.
(b) Other Remedies. If any Event of Default shall have
occurred, and durring the continuance of any such Event of
Default, the Agent may, and at the direction of the Required
Lenders in their sole and absolute discretion shall, do any
of the following:
(i) declare the principal of and interest on the Loans
and any Notes at the time outstanding, and all other amounts
owed to the Agent or the Lenders under this Agreement or any
of the Loan Documents and all other Secured Obligations, to
be forthwith due and payable, whereupon the same shall
immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which
are expressly waived, anything in this Agreement or the Loan
Documents to the contrary notwithstanding;
(ii) terminate the Revolving Credit Facility and any
other right of the Borrowers to request borrowings
hereunder;
(iii) notify, or request the Borrowers to notify, in
writing or otherwise, any Account Debtor or obligor with
respect to any one or more of the Receivables to make
payment to the Agent, for the benefit of the Lenders, or any
agent or designee of the Agent, at such address as may be
specified by the Agent and if, notwithstanding the giving of
any notice, any Account Debtor or other such obligor shall
make payments to the Borrowers, each Borrower shall hold all
such payments it receives in trust for the Agent, for the
account of the Lenders, without commingling the same with
other funds or property of, or held by, such Borrower, and
shall deliver the same to the Agent or any such agent or
designee of the Agent immediately upon receipt by such
Borrower in the identical form received, together with any
necessary endorsements;
(iv) settle or adjust disputes and claims directly with
Account Debtors and other obligors on Receivables for
amounts and on terms which the Agent considers advisable and
in all such cases only the net amounts received by the
Agent, for the account of the Lenders, in payment of such
amounts, after deductions of costs and attorneys' fees,
shall constitute Collateral and no Borrower shall have any
further fight to make any such settlements or adjustment& or
to accept any returns of merchandise;
(v) enter upon any premises in which Inventory or
Equipment may be located and, without resistance or
interference by any Borrower, take physical possession of
any or all thereof and maintain such possession on such
premises or move the same or any part thereof to such other
place or places as the Agent shall choose, without being
liable to the Borrowers on account of any loss. damage or
depreciation that may occur as a result thereof, so long as
the Agent shall act reasonably and in good faith;
(vi) require the Borrowers to, and the Borrowers shall,
without charge to the Agent or any Lender, assemble the
Inventory and Equipment and maintain or deliver it into the
possession of the Agent or any agent or representally, of
the Agent at such place or places as the Agent may designate
and as are reasonably convenient to both the Agent and the
Borrowers;
(vii) at the expense of the Borrowers, cause any of
the Inventory to be placed in a public or field warehouse,
and the Agent shall not be liable to the Borrowers on
account of any loss, damage or depreciation that may occur
as a result thereof; so long as the Agent shall act
reasonably and in good faith;
(viii) without notice, demand or other process, and
without payment of any rent or any other charge, enter any
of the Borrowers' premises and, without breach of the peace,
until the Agent, on behalf of the Lenders, completes the
enforcement of its rights in the Collateral, take possession
of such premises or place custodians in exclusive control
thereof; remain on such premises and use the same and any of
the Borrower's Equipment, for the purpose of (A) completing
any work in process, preparing any Inventory for disposition
and disposing thereof; and (B) collecting any Receivable,
and the Agent for the benefit of the Lenders is hereby
granted a license or sublicense and all other rights as may
be necessary, appropriate or desirable to use the
Proprietary Rights in connection with the foregoing, and the
rights of the Borrowers (or any of them) under all licenses,
sublicenses and franchise agreements shall inure to the
Agent for the benefit of the Lenders (provided, however,
that any use of any federally registered trademarks as to
any goods shall be subject to the control as to the quality
of such goods of the owner of such trademarks and the
goodwill of the business symbolized thereby);
(ix) exercise any and all of its rights under any and
all of the Security Documents;
(x) apply any Collateral or Guarantor Collateral
consisting of cash to the payment of the Secured Obligations
in any order in which the Agent, on behalf of the Lenders,
may elect or use such cash in connection with the exercise
of any of its other rights hereunder or under any of the
Security Documents;
(xi) establish or cause to be established one or more
Lockboxes or other arrangements for the deposit of proceeds
of Receivables, and, in such case, each .Borrower shall
cause to be forwarded to the Agent at the Agent's Office, on
a daily basis, copies of all checks and other items of
payment and deposit slips related thereto deposited in such
Lockboxes, together with collection reports in form and
substance satisfactory to the Agent; and
(xii) exercise all of the rights and remedies of a
secured party under the Uniform Commercial Code and under
any other Applicable Law, including, without limitation, the
right, without notice except as specified below and with or
without taking the possession thereof, to sell the
Collateral or any part thereof in one or more parcels at
public or private sale, at any location chosen by the Agent,
for cash, on credit or for furore delivery, and at such
price or prices and upon such other terms as the Agent may
deem commercially reasonable. Each Borrower agrees that, to
the extent notice of sale shall be required by law, at least
ten days' notice to such Borrower of the time and place of
any public sale or the time after which any private sale is
to be made shall constitute reasonable notification, but
notice given in any other reasonable manner or at any other
reasonable time shall constitute reasonable notification.
The Agent shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given.
The Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made
at the time and place to which it was so adjourned.
SECTION 12.3 Application of Proceeds. All proceeds
from each sale of, or other realization upon, all or any
part of the Collateral following an Eveuat of Default shall
be applied or paid over as follows:
(a) First: to the payment of all costs and expenses
incurred in connection with such sale or other realization,
including reasonable attorneys' fees,
(b) Second: to the payment of the Secured Obligations
(with the Borrowers remaining liable, joinfly and severally,
for any deficiency) as the Agent may elect,
(c) Third: the balance (if any) of such proceeds shall
be paid to the appropriate Borrower, subject to any duty
imposed by law, or otherwise to whomsoever shall be entitled
thereto.
The Borrowers shall remain liable, jointly and severally,
and will pay, on demand, any deficiency remaining in respect
of the Secured Obligations, together with interest thereon
at a rate per annum equal to the highest rate then payable
hereunder on such Secured Obligations, which interest shall
constitute part of the Secured Obligations.
SECTION 12.4 Power of Attorney. In addition to the
authorizations granted to the Agent under Section 8.13 or
under any other provision of this Agreement or of any other
Loan Document, during the continuanm of an Event of Default,
each Borrower hereby irrevocably designates, makes,
constitutes and appoints the Agent (and all Persons
designated by the Agent bom time to time) as such Borrowers
tree and lawful attorney, and agent in fact, and the Agent,,
or any agent ofthe Agent, may, without notice to such
Borrower, and at such time or times as :the Agent or any
such agent in its sole discretion may determine, in the name
of such Borrower, the Agent or the Lenders,
(i) demand payment of the Receivables,
(ii)enforce payment of the Receivables by legal
proceedings or otherwise,
(iii) exercise all of such Borrower's rights and
remedies with respect to the collection of Receivables,
(iv) settle, adjust, xxxxxxxx.xx, extend or renew any
or all of the Receivables,
(v) settle, adjust or compromise any legal proceedings
brought to collect the Receivables,
(vi) discharge and release the Receivables or any of them,
(vii) prepare, file and sign the name of such Borrower
on any proof of claim in bankruptcy or any similar document
against any Account Debtor,
(viii) prepare, file and sign the name of such Borrower
on any notice of Lien, assigment or satisfaction of Lien, or
similar document in connection with any of the Collateral,
(ix) endorse the name of such Borrower upon any chattel
paper, document, instrument notice, freight xxxx, xxxx of
lading or similar document or agreement relating to the
Receivables, the Inventory or any other Collateral,
(x) use the stationery of such Borrower and sign the
name of such Borrower to verifications of the Receivables
and on any notice to the Account Debtors,
(xi) open such Borrower's mail,
(xii) notify the post office authorities to change the
address for delivery of such.Borrower's mail to an address
designated by the Agent, and
(xiii) use the information recorded on or contained in
any data processing equipment and computer hardware and
software relating to the Receivables, Inventory or other
Collateral to which such Borrower has access.
SECTION 12.5 Miscellaneous Provisions Concerning Remedies.
(a) Rights Cumulative. The rights and remedies of the
Agent and the Lenders under this Agreement, the Notes and
each of the Loan Documents shall be cumulative and mot
exclusive of any rights or remedies which it or they would
otherwise have. In exercising such rights and remedies the
Agent and the Lenders may be selective and no failure or
delay by the Agent or any Lender in exercising any right
shall operate as a waiver of it, nor shall any single or
partial exercise of any power or right preclude its other or
further exercise or the exercise of any other power or
right.
(b) Waiver of Marshalling. Each Borrower hereby waives
any right to require any marshalling of assets and any
similar right.
(c) Limitation of Liability. Nothing contained in this
Article 12 or elsewhere in this Agreement or in any of the
Loan Documents shall be construed as requiring or obligating
the Agent, any Lender or any agent or designee of the Agent
or any Lender to make any demand, or to make any inquiry as
to the nature or sufficiency of any l~ayment received by it,
or to present or file any claim or notice or take any
action, with respect to any Receivable or any other
Collateral or Guarantor Collateral, or the monies due or to
become due thereunder or in connection therewith, or to take
any steps necessary to preserve any rights against prior
parties, and the Agent, the Lenders and their agents or
designees shall have no liability to the Borrowers for
actions taken pursuant to this Article 12, any other
provision of this Agreement or any of the Loan Documents so
long as the Agent or such Lender shall act reasonably and in
good faith.
(d) Appointment of Receiver. In any action under this
Article 12, the Agent shall be entitled during the
continuance of an Event of Default to the appointment of a
receiver, without notice of any kind whatsoever, to take
possession of ail or any portion of the Collateral and to
exercise such power as the court shall confer upon such
receiver.
SECTION 12.6 Trademark License. Each Borrower
hereby grants to the Agent for its benefit as Agent and for
the benefit of the Lenders, the nonexclusive right and
license to use the trademarks described in the Trademark
Assi.gnmets. for the purposes set forth in Section
12.2(b)(viii) and for the purpose of enabling the Agent to
realize on the Collateral and to permit any purchaser of any
portion of the Collateral through a foreclosure sale or any
other exercise of the Agent's rights and remedies under this
Agreement and the other Security Documents to use, sell or
otherwise dispose of the Collateral bearing any such
trademark. Such right and license is granted free of
charrge, without the requirement that any monetary payment
whatsoever be made to the Borrowers or any other Person by
the Lenders or the Agent or any purchaser or purchasers of
the Collateral Each Borrower hereby represents, warrants,
covenants and agrees that it presently has, and shall
continue to have, the right, without the approval or consent
of others, to grant the license set forth in this Seelion
12.6; and each Borrower hereby consents to the granting of
such license by the other Borrowers.
ARTICLE 13.
ASSIGNMENTS
SECTION 13.1 Successors and Assigns Participations.
(a) This Agreement shall be binding upon and inure to
the benefit of each Borrower, the Lenders, the Agent, all
future holders of the Notes, and their respective successors
and assigns, except that no Borrower may assign or transfer
any of its rights or obligations under this Agreement
without the prior written consent of each Lender.
(b) Each Lender may assign to one or more Eligible
Assignees all or a portion of its interests, rights and
obligations under this Agreement (including, without
limitation, ail or a portion of the Loans at the time owing
to it and the Notes held by it); provided, however, that
(i)each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and
obligations under this Agreement, (ii) the amount of the
Commitment of the assigning Lender that is subject to each
such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered
to the Agent) shall in no event be less than $5,000,000,
(iii) in the case of a partial assignment, the amount of the
Commitment that is retained by the assigning Lender
(determined as of the date the Assignment and Acceptance
with respect to such assionment is delivered to the Agent)
shall in no event be less than $5,000,000, (iv) the parties
to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register an
Assionment and Acceptance, together with the Notes subject
to such assi.onment, (v) such assignment shall not, without
the consent of the Borrowers, require the Borrowers or any
of them to file a registration statement with the Securities
and Exchange Commission or apply to or qualify the Loans or
the Notes under the blue sky laws of any state, and (vi) the
representation contained in Section 13.2 hereof shall be
true with respect to any such proposed assignee. Upon such
execution, delivery, acceptance and recording, from and
after the effective date specified in each Assionment and
Acceptance, which effective date shall be at least five
Business Days after the execution thereof, (x) the assignee
thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder, and (v) the Lender
assignor thereunder shall, to the extent provided in such
Assignment and Acceptance, be released from its obligations
under this Agreement.
(c) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the
other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and
beneficial owner of the interest being assigned thereby free
and clear of any adverse claim~ such Lender assignor makes
no representation or warranty and assumes no responsibility
with respect to any statements, warranties or
representations made in or in connection with this Agreement
or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii)
such Lender assignor makes no representation or warranty and
assumes no responsibility with respect to the financial
condition of the Borrowers or the performance or observance
by the Borrowers of any of their obligations under this
Agreement or any other instnnnent or document furnished
pursuant hereto; (iii)such assignee confirms that it has
received a copy of this Agreement, together with copies of
the financial statements referred to in Section 6.1(n) and
such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv)such assignee
will, independently and without reliance upon the Agent,
such Lender assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v)such
assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof and thereof;
together with such powers as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform
in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed-
by-it as a Lender.
(d) The Agent shall maintain a copy of each Assignment
and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders and
the Commitment Percentage of; and principal amount of the
Loans owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be
conclusive, in the absence of manifest error, and each
Borrower, the Agent and the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder
for all purposes of this Agreement. The Register shall be
available for inspection by any Borrower or any Lender at
any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assis, ning Lender and an Eligible Assignee
together with the Notes subject to such assignment, the
Agent shall, if such Assignment and Acceptance has been
completed and is in the form of Exhibit ig, (i)accept such
Assignment and Acceptance, (ii)record the information
contained therein in the Register, (iii)give prompt notice
thereof to the Lenders and the Borrowers, and (iv)promptly
deliver a copy of such Acceptance and Assignment to the
Borrowers. Within five Business Days after receipt of
notice, the Borrowers shall execute and deliver to the Agent
in exchange for the surrendered Notes new Notes to the order
of such Eligible Assignee in amounts equal to the Commitment
Percentage assumed by such Eligible Assignee pursuant to
such Assignment and Acceptance and new Notes to the order of
the assigning Lender in an amount equal to the Commitment
retained by it hereunder. Such new Notes shall be in an
aggregate principal amount equal to the aggregate principal
amount of such surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall
otherwise 'be in substantially the form of the assigned
Notes originally delivered to the assignor Lender. Each
surrendered Note or Notes shall be canceled and returned to
the Borrowers.
(f) Each Lender may, without the consent of the Borrowers,
sell participations to one or more banks or other entities
in all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion
of its commitments hereunder and the Loans owing to it and
the Notes held by it); provided, however, that (I) each such
participation shall be in an amount not less than
$5,000,000, (ii) such Lender's obligations under this
Agreement (including, without limitation its commitments
hereunder) shall remain unchanged, (iii) such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations, (iv) such Lender shall
remain the holder of the Notes held by it for all purposes
of this Agreement, (v) each Borrower, the Agent and the
other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and
obligations under this Agreement; provided, that such Lender
may agree with any participant that such Lender will not,
without such participant's consent, agree to or approve any
waivers or amendments which would reduce the principal of or
the interest rate on any Loans, extend the term or increase
the amount of the commitments of such particpant, reduce the
amount of any fees to which such participant is entitled,
extend any scheduled payment date for principal or release
Collateral or Guarantor Collateral securing the Loans (other
than Collateral or Guarantor Collateral disposed of in
accordance with the terms of this Agreement of the Security
Documents), and (vi) any such disposition shall not, without
the consent of the Borrowers, require any Borrower to file a
registration statement with the Securities and Exchange
Commission to apply to qualify the Loans or the Notes under
the blue sky law of any state. The Lender selling a
participation to any bank or other entity that is not an
Affiliate of such Lender shall give prompt notice therof to
the Borrowers and the Agent
(g) Any Lender may, in connection with any assignment,
proposed assignment, participation or proposed participation
pursuant to this Section 13.1, disclose to the assignee,
participant, proposed assignee or proposed participant, any
information relating to the Borrowers furnished to such
Lender by or on behalf of the Borrowers (or any of them);
provided that, prior to any such disclosure, each such
assignee, proposed assignee, participant or proposed
participant shall agree with the Borrowers or such Lender
(which in the case of an agreement with only such Lender,
the Borrowers shall be recognized as third party
beneficiaries thereof) to preserve the confidentiality of
any confidential information relating to the Borrowers
received from such Lender.
SECTION 13.2 Representation of Lenders. Each
Lender hereby represents that it will make each Loan
hereunder as a commercial loan for its own account in the
ordinary course of its business; provided, however, that
subject to Section 13.1 hereof; the disposition of the Notes
or other evidence of the Secured Obligations held by any
Lender shall at ail times be within its exclusive control.
ARTICLE 14.
AGENT
SECTION 14.1 Appointment of Agent. Each of the Lenders
hereby irrevocably designates and appoints NationsBank, N.A.
as the Agent of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably
authorizes the Agent, as the agent for such Lender, to take
such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such
powers and perform .such duties as are expressly delegated,
to the Agent by the terms of this Agreement and such other
Loan Documents, including without limitation, to make
determinations as to the eligibility of Inventory and
Receivables and to adjust the AllPlicable Percentages (so
long as such Applicable Percentages, as adjusted, do not
exceed those set xxxxxx in the definition thereof), together
with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Agent shall
not have any duties or responsibilities, except those
expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or the other
Loan Documents or otherwise exist against the Agent.
SECTION 14.2 Delegation of Duties. The Agent may
execute any of its duties under this Agreement and the other
Loan Documents by or through agents or attomegs-in-fact and
shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agents
or attomegs-in-fact selected by it with reasonable care.
SECTION 14.3 Exculpatory Provisions. Neither the
Agent nor any of its trustees, officers, directors,
employees, agents, attomegs-in-fact or Amliates shall be (i)
liable to any Lender (or any Lenders participants) for any
action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or the
other Loan Documents (except for its or such Person's own
gross negligence or willful misconduct), or (ii) responsible
in any manner to any Lender (or any Lender's participants)
for any recitals, statements, representations or wamanfies
made by any Borrower or any officer thereof contained in
this Agreement or the other Loan Documents or in any
certificate, report, statement or other'document referred to
or provided for in, or received by the Agent under or in
connection with, this Agreement or the other Loan Documents
or for the value, validity, effectiveness, genuineness,
enforceability or sufiidency of this Agreement or the other
Loan Documents or for any failure of the Borrowers (or any
of them) to perform their respective obligations hereunder
or thereunder. The Agent shall not be under any obligation
to any Lender to ascertain or to inquire as to the
observance or perfolmance of any of the agreements contained
in, or conditions of this Agreement, or to inspect the
properties, books or records of any Borrower.
SECTION 14.4 Reliance by Agent. The Agent shall be
entitled to rely, and shall be fully protected in relying,
upon any Note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the
Borrowers), independent accountants and other experts
selected by the Agent. The Agent may deem and treat the
payee of any Note as the owner thereof for all purposes
unless such Note shall have been transferred in accordance
with Section 13.1. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement
and the other Loan Documents unless it shall first receive
such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking
or continuing to take any such action. The Agent shall in
all eases be fully protected in acting, or in refraining
from acting, under this Agreement and the Notes in
accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future
holders of the.Notes.
SECTION 14.5 Notice of Default. The Agent shall
not be deemed to have knowledge or notice of the occurrence
of any Default or Event of Default hereunder unless the
Agent has received notice from a Lender or the Borrowers
referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice
of default." In the event that the-Agent receives such a
notice, the Agent shall promptly give notice thereof to the
Lenders. The Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and
until the Agent shall have received such directions, the
Agent may (but shall not be obligated to) continue making
Revolving Credit Loans to the Borrowers on behalf of the
Lenders in reliance on the provisions of Section 4.7 and
take such other action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
SECTION 14.6 Non-Reliance on Agent and Other
Lenders. Each Lender expressly acknowledges that neither the
Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affliates has made any representations
or warranties to it and that no act-by the Agent hereinafter
taken, including any review of the affairs of the Borrowers,
shall be deemed to constitute any representation or warranty
by the Agent to any Lender. Each Lender represents to the
Agent that it has, independently and without reliance upon
the Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own
appraisal of and investigation into the business,
operations, property, financial and other condition and
creditworthiness of the Borrowers and made its own decision
to make its Loans hereunder and enter into this Agreement.
Each Lender also represents that it will, independently and
without reliance upon the Agent or any other Lender, and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to
inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports and other documents
expressly required to be furnished to the Lenders by the
Agent hereunder or by the other Loan Documents, the Agent
shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the
business, operations, property, financial and other
condition or creditworthiness of the Borrowers which may
come into the possession of the Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
SECTION 14.7 Indemnification The Lenders agree to indemnify
the Agent in its capacity as such (to the extent not
reimbursed by the Borrowers and without limiting the
obligation of the Borrowers to do so), ratably according to
their respective Commitment Percentages, xx.xx and against
any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the
payment of the Notes) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of
this Agreement or the other Loan Documents, or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action
taken or omitted by the Agent under or in connection with
any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely
from the Agent's gross negligence or willful misconduct or
resulting solely xx.xx transactions or occurrences that
occur at a time after such Lender has assigned all of its
interests, rights and obligations under this Agreement
pursuant to Section 13.1 or, in the case of a Lender to
which an assignment is made hereunder pursuant to Section
13.1, at a time before such assignment. The agreements in
this subsection shall survive the payment of the Notes, the
Secured Obligations and all other amounts payable hereunder
and the termination of this Agreement.
SECTION 14.8 Agent in Its Individual Capacity. The
Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the
Borrowers (or any of them) and their respective Subsidiaries
as if the Agent were not the Agent hereunder. With respect
to its Commitment, the Loans made by it and any Note issued
to it, the Agent shall have and may exercise the same rights
and powers under this Agreement and the other Loan Documents
and is subject to the same obligations and liabilities as
and to the extent set forth herein and in the other Loan
Documents for any other Lender. The terms "Lenders" or
"Required Lenders" or any other term shall, unless the
context clearly otherwise indicates, include the Agent in
its individual capacity as a Lender or one of the Required
Lenders.
SECTION 14.9 Successor Agent. The Agent may resign as Agent
upon ten days' notice to the Lenders. If the Agent shall
resign as Agent under this Agreement, then the Required
Lenders shall appoint from among the Lenders a successor
agent for the Lenders which successor agent shall be
approved by the Borrowers (which approval shall not be
unreasonably withheld), whereupon such successor agent shall
succeed to the rights, powers and duties of the Agent, and
the term "Agent" shall mean such successor agent effective
upon its appointment, and the former Agents rights, powers
and duties as Agent shall be terminated, without any other
or further act or deed on the pan of such former Agent or
any of the parties to this Agreement or any holders of the
Notes. After any retiring Agent's resignation heraruder as
Agent, the provisions of Sections 14.7 and 15.14 shall inure
to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement
SECTION 14.10 Notices from Agent to Leaders. The Agent
shall, promptly upon receipt thereof; forward to each Leader
copies of any writtea notices, reports or other information
supplied to it by any Borrower (but which the Borrowers are
not required to supply directly to the Lenders).
ARTICLE 15.
MISCELLANEOUS
SECTION 15.1 Notices.
(a) Method of Communication. Except as specifically
otherwise provided in this Agreement or in any of the Loan
Documents, all notices and the communications hereunder and
thereunder shall be in writing or by telephone, subsequently
confirmed in writing. Notices in writing shall be delivered
personally or sent by certified or registered mail, postage
pre-paid, or by overnight courier, telex or facsimile
transmission and shall be deemed received in the case of
personal delivery, when delivered against a receipt
therefor, in the case of mailing, when receipted for, in the
case of overnight delivery, on the next Business Day after
delivery to the courier, and in the case of telex and
facsimile transmission, upon transmittal, provided that in
the case of notices to the Agent, notice shall be deemed to
have been given only when such notice is actually
received~by the ~gent. A telephonic notice to the Agent, as
understood by the Agent, will be deemed to be the
controlling and proper notice in the event of a discrepancy
with or failure to receive a Confirming written notice.
(b) Addresses for Notices. Notices to any party shall
be sent to it at the following addresses, or any other
address of which all the other parties are notified in
writing:
If to the Borrowers or the Guarantors: Xxxxxxx Industries, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxx 00000
Attn: Chief Financial Officer
Facsimile No: (000) 000-0000
with a copy to:
(which shall not constitute notice) Shook Hardy & Bacon L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
If to the Agent NationsBank, N.A.
Business Credit Division
000 Xxxxxxxxx Xxxxxx,X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
If to a Lender: At the address of such Lender set
forth on the signature pages hereof.
(c) Agent's Office. The Agent hereby designates
its office located at 000 Xxxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, or any subsequent office which shall
have been specified for such purpose by written notice
to the Borrowers, as the office to which payments due
are to be made and at which Loans will be disbursed.
SECTION 15.2 Expenses. The Borrowers agree to pay
or reimburse on demand all costs and expenses incurred by
the Agent or any Lender, including, without limitation, the
reasonable fees and disbursements of counsel, in connection
with
(a) so long as no Default or Event of Default exists and
Availability equals or exceeds $2,500,000, two field exams
during each 12 month period following the Effective Date at
the rate of $5,000 per exam and at any other time all
inspections, verifications, audits, site visits and other
activities associated with monitoring the Collateral or
otherwise administering this Agreement, including, without
limitation, travel, meals and lodging expenses of employees
of the Agent and any agent of the Agent;
(b) the negotiation, preparation, execution, delivery,
administration, enforcement and termination of this
Agreement and each of the other Loan Documents, whenever the
same shall be executed and delivered, including, without
limitation
(i) the out-of-pocket costs and expenses incurred in
connection with the administration and interpretation of
this Agreement and the other Loan Documents;
(ii) the costs and expenses of appraisals of the Collateral;
(iii) the costs and expenses of lien and title searches and
title insurance;
(iv) the costs and expenses of any environmental
reports with reject to the Real Estate; and
(v) taxes, fees and other charges for filing the
Financing Statements and continuations and the costs and
expenses of taking other actions to perfect, protect, and
continue the Security Interests;
provided, however, that the Borrowers shah not be required
to pay the expenses of any Person which becomes a Lender
after the. Effective Date incurred in connection with such
Person's so becoming a Lender;
(c) the preparation, execution and delivery of any
waiver, amendment, supplement or consent by the Agent and
the Lenders relating to this Agreement or any of the Loan
Documents;
(d) sums paid or incurred to pay any amount or take any
action required of the Borrowers (or any of them) under the
Loan Documents that the Borrowers fail to pay or take;
(e) costs and expenses of forwarding Loan proceeds,
collecting checks and other items of payment, and
establishing and maintaining each Controlled Disbursement
Account, Agency Account and Lockbox;
(f) costs and expenses of preserving and protecting the
Collateral;
(g) consulting, after the occurrence of a Default,
with one or more Persons, including appraisers, accountants,
lawyers, environmental and business consultants and other
experts, concerning the value of any collateral for the
Secured Obligations; the operation of the business of any
Borrower or related to the nature, scope or value of any
right or remedy of the Agent or any Lender hereunder or
under any of the Loan Documents, including any review of
factual matters in connection therewith, which expenses
shall include the fees and disbursements of such Persons;
and
(h) reasonable costs and expenses paid or incurred to
obtain payment of the Secured Obligations, enforce the
Security Interests, sell or otherwise realize ugon the
Collateral, and otherwise enforce the provisions of the Loan
Documents, or to prosecute or defend any claim in any way
arising out of, related to or connected with, this Agreement
or any of the Loan Documents, which expenses shall include
the reasonable fees and disbursements of counsel and of
experts and other consultants retained by the Agent or any
Lender.
The foregoing shall not be construed to limit any other
provisions of the Loan Documents regarding costs and
expenses to be paid by the Borrowers. The Borrowers hereby
authorize the Agent and the Lenders to debit the Borrowers'
Loan Accounts (by increasing the principal mount of the
Revolving Credit Loans) in the amount of any such costs and
expenses owed by the Borrowers when due.
SECTION 15.3 Stamp and Other Taxes. The Borrowers
will pay, joinfly and severally, any and all stamp,
registration, recordation and similar taxes, fees or charges
and shall indemnify the Agent and the Lenders against any
and all liabilities with respect to or resulting xx.xx any
delay in the payment or omission to pay any such taxes, fees
or charges, which may be payable or determined to be payable
in connection with the execution, delivery, performance or
enforcement of this Agreement and any of the Loan Documents
or the perfection of any rights or seoarity interests
thereunder, including without limitation, the Security
Interest.
SECTION 15.4 Setoff. In addition to any rights now
or hereafter granted under Applicable Law and not by way of
limitation of any such rights, during the continuance of any
Event of Default, each Lender, any participant with such
Leader in the Loans and each Affiliate of each Leader are
hereby authorized by each Borrower at any time or from time
to time, without notice to such Borrower or to any other
Person, any such notice being hereby expressly waived, to
set off and to appropriate and to apply any and all deposits
(general or special, including but not limited to,
indebtedness evidenced by certificates of deposit, whether
matured or unmatured) and any other indebtedness at any time
held or owing by any Lender or any Affiliate of any Lender
or any participant to or for the credit or the account of
such Borrower against and on account of the Secured
Obligations irrespective or whether or not the Agent or such
Lender shall have made any demand under this Agreement or
any of the Loan Documents.
SECTION 15.5 Liti2ation. Each Borrower, the Agent and each
Lender hereby knowingly, intentionally and voluntarily waive
trial by jury in any action or proceeding of any kind or
nature in any court in which an action may be commenced by
or against any Borrower, the Agent and any such Lender
arising out of this Agreement, the Collateral or any
assignment thereof or by reason of any other cause or
dispute whatsoever between any Borrower and the Agent or any
Lender of any kind or nature. Each Borrower, the Agent and
the Lenders hereby agree that the federal court of the
northern district of Georgia or, at the option of the Agent
or any Lender, any court in which the Agent or such Lender
shall initiate legal or equitable proceedings and which has
subject matter jurisdiction over the matter in controversy,
shall have nonexclusive jurisdiction to hear and determine
any claims or disputes between such Borrower and the Agent
or such Lender, pertaining directly or indirectly to this
Agreement or the Loan Documents or to any matter arising
therefrom. Each Borrower expressly submits and consents in
advance to such jurisdiction in any action or proceeding
commenced in such courts, hereby waiving personal service of
the summons and complaint, or other proce~ or papers issued
therein and agreeing that service of such summons and
complaint or other process or papers may be made by
registered or certified mail addressed to such Borrower at
the address of such Borrower set forth in Section 15.1.
Should such Borrower fail to appear or answer any summons,
complaint, process or papers so served within thirty (30)
days after the mailing thereof, it shall be deemed in
default and an order and/or judgment may be entered against
it as demanded or prayed for in such summons, complaint,
process or papers. The nonexclusive choice of forum set
forth in this Section shall not be deemed to preclude the
enforcement of any judgment obtained in such forum or the
taking of any action under this Agreement to enforce same in
any appropriate jurisdiction.
SECTION 15.6 Waiver of Rights. Each Borrower
hereby knowingly, intentionally and voluntarily waives all
rights which such Borrower has under Chapter 14 of Title 44
of the Official Code of Georgia or under any similar
provision of Applicable-Law to notice and to a judicial
hearing prior to the issuance of a writ of possession
entitling the Agent or any Lender, or the successors and
assigns of the Agent or such Lender to possession of the
Collateral upon an Event of Default. Without limiting the
generality of the foregoing and without limiting any other
right which the Agent or the Lenders may have, each Borrower
consents that if the Agent or any Lender fdes a petition for
an immediate writ of possession in compliance with Sections
00-00-000 and 00-00-000 of the Official Code of Georgia or
under any similar provision of Applicable Law, and this
waiver or a copy hereof is alleged in such petition and
attached thereto, the court before which such petition is
filed may dispense with all rights and procedures herein
waived and may issue forthwith an immediate writ of
possession in accordance with Chapter 14 of Title 44 of the
Official Code of Georgia or in accordance with any similar
provision of Applicable Law, without the necessity of an
accompanying bond as otherwise required by Section 00-00-000
of the offchi Code of Georgia or by any similar provision
under Applicable Law. Each Borrower hereby acknowledges that
it has read and fully understands the terms of this waiver
and the effect hereof. Such waiver shall not in any way
effect each Borrower's right to challenge the Agent's or
Lenders' right to such possession under this Agreement or
waive any claims of a Borrower for wrongful seizure or
damages therefor.
SECTION 15.7 Consent to Advertising and Publicity.
With the prior written consent of the Borrowers, which
consent shall not be unreasonably withheld, the Agent, on
behalf of the Lenders, may issue and disseminate to the
public information describing the credit accommodation
entered into pursuant to this Agreement, including the names
and addresses of the Borrowers, the amount, interest rate,
maturity, collateral and a general description of the
Borrowers' business(es).
SECTION 15.8 Reversal of Payments. The Agent and each Lender
shall have the continuing and exclusive right to apply,
reverse and re-apply any and all payments to any portion of
the Secured Obligations in a manner consistent with the
terms of this Agreement. To the extent any Borrower makes a
payment or payments to the Agent, for the account of the
Lenders, or any Lender receives any payment or proceeds of
the Collateral or Guarantor Collateral for any Borrowers
benefit, which payment(s) or proceeds or any part thereof
are subsequently invalidated, declared to be fi'audulent or
preferential, set aside and/or required to be repaid to a
trustee, receiver or any other party under any bankruptcy
law, state or federal law, common law or equitable cause,
then, to the extent of such payment or proceeds received,
the Secured Obligations or part thereof intended to be-
satisfied shall be revived and continued in full force and
effect, as if such payment or proceeds had not been received
by the Agent or such Lender.
SECTION 15.9 Injunctive Relief.. Each Borrower
recognizes that, in the event such Borrower fails to
perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy at law may
prove to be inadequate relief to the Agent and the Lenders;
therefore, each Borrower agrees that if any Event of Default
shall have occurred and be continuing the Agent and the
Lenders, if the Agent or any Lender so requests, shall be
entitled to temporary and permanent injunctive relief
without the necessity of proving actual damages.
SECTION 15.10 Accounting Matters. All financial
and accounting calculations, measurements and computations
made for any purpose relating to this Agreement, including,
without limitation, all computations utilized by any
Borrower to determine whether it is in compliance with any
covenant contained herein, shall, unless this Agreement
otherwise provides or unless the Required Lenders shall
otherwise consent in writing be performed in accordance with
GAAP.
SECTION 15.11 Amendments.
(a) Except as set forth in substetion (b) below, any
term, covenant, agreement or condition of this Agreement or
any of the Loan Documents may be amended or waived, and any
departure therebom may be consented to by the Required
Lenders, if, but only if, such amendment, waiver or consent
is in writing signed by the Required Lenders and, in the
case of an amendment (other than an amendment described in
Section 15.11(d)), by the Borrowers, and in any such event,
the failure to observe, perform or discharge any such term,
covenant, agreement or condition (whether such amendment is
executed or such waiver or consent is given before or area'
such failure) shall not be construed as a breach of such
term, covenant, agreement or condition or as a Default or an
Event of Default. Unless otherwise specified in such waiver
or consent, a waiver or consent given hereunder shall be
effective only in the specific instance and for the specific
purpose for which given. In the event that any such waiver
or amendment is requested by a Borrower, the Agent and the
Lenders may require and charge a fee in connection therewith
and consideration thereof in such amount as shall be
determined by the Agent and the Required Lenders in their
discretion.
(b) Except as otherwise set forth in this Agreement,
without the prior unanimous written consent of the Lenders,
(i) no amendment, consent or waiver shall affect the amount
or extend the time of the obligation of the Lenders to make
Loans or extend the originally scheduled time or times of
payment of the principal of any Loans or alter the time or
times of payment of interest on any Loans or the amount of
the principal thereof or the rate of interest thereon or the
mount of any commitment fee payable hereunder or permit any
subordination of the principal or interest on such Loan,
permit the subordination of the Security Interests in any
material Collateral or Guarantor Collateral or amend the
provisions of Article 12 or of this Section 15.II(b),
(ii) no material Collateral or Guarantor Collateral
shall be released by the Agent other than as specifically
permitted in this Agreement, and.
(iii) except to the extent expressly provided herein,
the definition "Borrowing Base" shall not be amended;
provided, however, that anything herein to the contrary
notwithstanding, the Required Lenders shall have the right
to waive any Default or Event of Default and the
consequences hereunder of such Default or Event of Default
and shall have the right to enter into an agreement with the
Borrowers providing for the forbearance from the exercise of
any remedies provided hereunder or under the other Loan
Documents without waiving any Default or Event of Default,
and no Lender shall be excused from its obligations to make
Loans hereunder in the event of any such waiver or
forbearance.
(c) The making of Loans hereunder by the Lenders during
the existence of a Default or Event of Default shall not be
deemed to constitute a waiver of such Default or Event of
Default.
(d) Notwithstanding any provision of this Agreement or
the other Loan Documents to the contrary, no consent,
written or otherwise, of the Borrowers shall be necessary or
required in connection with any amendment to Article 14 or
Section 4.7, and any amendment to such provisions shall be
effected solely by and among the Agent and the Lenders,
provided that no such amendment shall impose any obligation
on any Borrower.
SECTION 15.12 [Reserved].
SECTION 15.13 Performance of Borrowers' Duties.
(a) The Borrowers' obligations under this Agreement and
each of the Loan Documents shah be performed by the
Borrowers at their sole cost and expense.
(b) If a Borrower shall fail to do any act or thing
which it has covenanted to do under this Agreement or any of
the Loan Documents, the Agent, on behalf of the Lenders, may
(but shah not be obligated to) do the same or cause it to be
done either in the name of the Agent or the Lenders or in
the name and on behalf of such Borrower, and each Borrower
hereby irrevocably authorizes the Agent so to act.
SECTION 15.14 Indemnification Each Borrower agrees
to reimburse the Agent and the Lenders for all costs and
expenses, including reasonable counsel fees and
disbursements, incurred, and to indemnify, defend and hold
the Agent and the Lenders harmless from and against all
losses suffered, by the Agent or any Lender in connection
with
(i) the exercise by the Agent or any Lender of any
right or remedy granted to it under this Agreement or any of
the Loan Documents,
(ii) any claim, and the prosecution or defense thereof,
arising out of or in any way connected with this Agreement
or any of the Loan Documents, and
(iii) the collection or enforcement of the Secured
Obligations or any of them,
other than such costs, expenses and liabilities arising out
of the Agent's or any Lender's gross negligence or willful
misconduct.
SECTION 15.15 All Powers Coupled with Interest.
All powers of attorney and other authorizations granted to
the Agent and the Lenders and any Persons designated by the
Agent or the Lenders pursuant to any provisions of this
Agreement or any of the Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as
any of the Secured Obligations remain unpaid or unsatisfied.
SECTION 15.16 Survival. Notwithstanding any termination of
this Agreement,
(a) until all Secured Obligations have been irrevocably
paid in full or otherwise satisfied, the Agent, for the
benefit of the Lenders, shall retain its Security Interest
and shall retain ail rights under this Agreement and each of
the Security Documents with respect to such Collateral as
fully as though this Agreement had not been terminated,
(b) the indemnifies to which the Agent and the Lenders
are entitled under the provisions of this Article 15 and any
other provision of this Agreement and the Loan Documents
shall continue in full force and effect and shall protect
the Agent and the Lenders against events arising aider such
termination as well as before, and
(c) in connection with the termination of this
Agreement and the release and termination of the Security
Interest, the Agent, on behalf of itseft as agent and the
Lenders, may require such assurances and indemnities as it
shall reasonably deem necessary or appropriate to protect
the Agent and the Lenders against loss on account of such
release and termination, including, without limitation, with
respect to credits previously applied to the Secured
Obligations that may subsequently be reversed or revoked.
SECTION 15.17 Titles and Captions. Titles and
captions of Articles, Sections and subsections in this
Agreement are for convenience only, and neither limit nor
amplify the provisions of this Agreement.
SECTION 15.18 Severability of Provisions. Any
provision ofthis Agreement or any Loan Document which is
prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective only to the extent of such
prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions
hereof or thereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 15.19 Governing Law. This Agreement, the Notes and
the other Loan Documents (subject to express provisions to
the contrary contained therein) shall be construed in
accordance with.and governed by the law (other than the
conflict of laws provisions thereof) of the State of
Georgia, except that the provisions of the first sentence of
Section 15.5 shall be governed by the laws of the forum
state.
SECTION 15.20 Counterparts. This Agreement may be
executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when
so executed shall be deemed to be an original and shall be
binding upon all parties, their suers and assigns, and all
of which taken together shall constitute one and the same
agreement.
SECTION 15.21 Reproduction of Documents. This
Agreement, each of the Loan Documents and all documents
relating thereto, including, without limitation, (a)
consents, waivers and modifications that may herea/ter be
executed, (b) docmnents received by the Agent or any Lender,
and (c) financial statements, certificates and other
information previously or hereafter furnished to the Agent
or any Lender, may be reproduced by the Agent or such Lender
by any photographic, photostatic, microfilm microcard,
'miniature photographic or other similar process and such--
Person may destroy any original document so produced. Each
party hereto stipulates that, to the extent permitted by
Applicable Law, any such reproduction shall be as admissible
in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original shall
be in existence and whether or not such reproduction was
made by the Agent or such Lender in the regular course of
business), and any enlargement, faosimile or further
reproduction of such reproduction shall likewise be
admissible in evidence.
SECTION 15.22 Term of Agreement. This Agreement
shall remain in effect from the Agreement Date through the
Termination Date and thefeather until all Secured
Obligations shall have been irrevocably paid and satistied
in full. No termination of this Agreement shall affect the
rights and obligations of the parties hereto arising prior
to such termination
SECTION 15.23 Increased Capital. If any Lender
shall have determined that the adoption of any applicable
law, role, regulation, guideline, directive or request
(whether or not having force of law) regarding capital
requirements for banks or bank holding companies, or any
change therein or in the interpretation or administration
thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or
administion thereof or compliance by such Lender with any of
the foregoing, imposes or increases a requirement by such
Lender to allocate capital resources to such Lenders
Commitment to make Loans hereunder which has or would have
the effect of reducing the return on such Lender's capital
to a level below that which such Lender could have achieved
(taking into consideration such Lender's then-existing
policies with respect to capital adequacy and assuming full
utilization of such Lender's capital) but for such adoption,
change or compliance by any amount deemed by such Lender to
be material: (i) such Lender shall promptly after its
determination of such occurrence give notice thereof to the
Borrowers and the Agent; and (ii) the Borrowers shall pay,
jointly and severally, to such Lender as an additional fee
from time to time on demand such amount as such Lender
certifies to be the amount that will compensate it for such
reduction. A certificate of such Lender claiming
compensation under this Section 15.23 shall be conclusive in
the absence of manifest error. Such certificate shall set
forth the nature of the occurrence giving rise to such
compensation, the additional amount or amounts to be paid to
it hereunder and the method by which such amounts were
determined. In determining such amount, such Lender may use
any reasonable averaging and attribution methods.
SECTION 15.24 Pro.Rata Participation.
(a) Each Lender agrees that
(i) if it or any of its Affiliates shall exercise any
right of counterclaim, set-off, banker's lien or similar
right, or if under any applicable bankruptcy, insolvency or
other similar law it receives a secured claim the security
for which is a debt owed by it to any Borrower, it shall
apportion the amount thereof, on a pro rata basis, between
(A) amounts at the time owed to it by the Borrowers under
this Agreement, and (13) amounts otherwise owed to it by
such Borrower, and
(ii) if, as a result of the exercise of a right or the
receipt of a secured claim and the apportionment thereof
described in clause (i) of this Section 15.24(a) or
otherwise, it shall receive payment of a proportion of the
aggregate amount of principal and interest due with respect
to the Secured Obligations owed to it under this Agreement
greater than the proportion of such amounts then received by
any other Lender, such Lender shall purchase a participation
(which it shall be deemed to have purchased simultaneously
upon the receipt of such payment) in the Secured Obligations
then held by the other Lenders so that all such recoveries
of principal and interest with respect to all Secured
Obligations owed to each Lender shall be pro rata on the
basis of its respective amount of the Secured Obligations
owed to all Lenders, provided that if all or part of such
proportionately greater payment received by such purchasing
Lender is thereafter recovered by or onbehalfof such
Borrower from such Lender, such purchase shall be rescinded
and the purchase price paid for such participation shall be
returned to such Lender to the extent of such recovery, but
without interest.
(b) Each Lender that receives such a secured claim
shall exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders
entitled under this Section 15.24 to share in the benefits
of any recovery on such secured claim.
(c) Each Borrower expressly consents to the foregoing
arrangements and agrees that any holder of a participation
in any Secured Obligation so purchased or otherwise acquired
may exercise any and all rights of banker's lien, set-off or
counterclaim with respect to any and all monies owing by
such Borrower to such holder as fully as if such holder were
a holder of such Secured Obligation in the amount of the
participation held by such holder.
SECTION 15.25 Effect of this Agreement. Upon the
Effective Date of this Agreement, this Agreement shall
supersede in its entirety the Original Agreement; provided,
however, that all Loans and Secured Obligations outstanding
under the Original Agreement on the Effective Date shall
continue to constitute Loans and Secured Obligations under
this Agreement and the execution and delivery of this
Agreement or any of the Loan Documents hereunder shall not
constitute a novation, refinancing or any other fundamental
change in the relationship among the parties and the
Indebtedness outstanding hereunder shall constitute the same
Indebtedness as now outstanding under the Original
Agreement.
SECTION 15.26 Final Agreememt THIS AGREEMENT,
TOGETHER WITH ALL OTHER WRITTEN AGREEMENTS BETWEEN THE
BORROWERS, THE LENDERS AND THE AGENT IS THE FINAL EXPRESSION
OF THE LOAN AGREEMENT BETWEEN THE BORROWERS, THE LENDERS AND
THE AGENT, AND SUCH WRITTEN LOAN AGREEMENT MAY NOT BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL LOAN AGREEMENT OR
OF A CONTEMPORANEOUS ORAL LOAN AGREEMENT BETWEEN THE
BORROWERS, THE LENDERS AND THE AGENT.
NON-STANDARD TERMS; NO UNWRITTEN ORAL AGREEMENTS.ANY
ADDITIONAL NON-STANDARD TERMS OF THE LOAN AGREEMENT
BETWEEN THE BORROWERS, THE LENDERS AND THE AGENT, INCLUDING
REDUCTION TO WRITING OF A PREVIOUS ORAL LOAN AGREEMENT
BETWEEN THE BORROWERS, THE LENDERS AND THE AGENT, ARE SET
FORTH IN THE SPACE BELOW (IF NONE, WRITE "NONE"):
NONE
NO UNWRITTEN LOAN AGREEMENT BETWEEN THE BORROWERS, THE
LENDERS AND THE AGENT EXISTS.
Acknowledgment by the Borrowers (Initials):
Xxxxxxx Industries, Inc. /s/
Xxxxxxx Bus Corporation /s/
Wheeled Coach Industries, Inc. /s/
Capacity of Texas, Inc. /s/
Mobile Tech Corporation /s/
World Trans, Inc. /s/
Acknowledgment by the Lenders (Initials):
NationsBank, N.A. /s/
(f/k/a NationsBank of Georgia, N.A.)
Acknowledgment by the Agent (Initials):
NationsBank, N.A. /s/
(f/k/a NationsBank of Georgia, N.A.)
IN WITNESS WHEREOF, the parties hereto have mused
this Agreement to be executed by their duly authorized
officers in several counterparts all as of the day and year
first written above.
BORROWERS:
XXXXXXX INDUSTRIES, INC.
By: /s/
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
XXXXXXX BUS CORPORATION
By: /s/
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
WHEELED COACH INDUSTRIES, INC.
By: /s/
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
CAPACITY OF TEXAS, INC.
By: /s/
Name: Xxxxx W, Xxxxx
Title: Chief Financial Officer
MOBILE-TECH CORPORATION
By: /s/
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
WORLD TRANS, INC.
By: /s/
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
AGENT:
NATIONSBANK, N.A. (f/k/a NatiOnsBank of Georgia, N.A.), as
Agent
By: /s/
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address:
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Xxxxx: Business Credit
Facsimile No.: (000) 000-0000
LENDERS:
NATIONSBANK, N.A. (f/k/a NationsBank of Georgia, N.A.)
By: /s/
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Address:
000 Xxxxxxxxx Xxxxxx, X.X., 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Business Credit
Facsimile No.: (000) 000-0000
Term Loan A
Commitment Amount:
Term
Borrower Loan A
Xxxxxxx $ 341,666.99
Bus $ 410,000.00
WCI $2,075,000.00
Capacity $ 205,000.00
Total $3,031,666.92
