1
Exhibit 10.1
[EXECUTION COPY]
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AMENDED AND RESTATED
CREDIT AGREEMENT
by and among
WINDMERE-DURABLE HOLDINGS, INC.
as Borrower,
NATIONSBANK, NATIONAL ASSOCIATION
as Agent and as Lender,
and
THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME
August 7, 1998
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TABLE OF CONTENTS
Page
ARTICLE I Definitions and Terms...................................................................................2
I.1............................................................................................................2
I.2. Definitions...............................................................................................3
I.3. Rules of Interpretation..................................................................................35
ARTICLE II The Term Loans........................................................................................37
II.1. Term Loans..............................................................................................37
II.2. Payment of Principal....................................................................................37
II.3. Payment of Interest.....................................................................................38
II.4. Manner of Payment.......................................................................................38
II.5. Optional Prepayments....................................................................................39
II.6. Mandatory Prepayments...................................................................................39
II.7. Term Notes..............................................................................................41
II.8. Interest Periods........................................................................................41
II.9. Conversions and Elections of Subsequent Interest Periods................................................42
II.10. Pro Rata Payments......................................................................................42
II.11. Use of Proceeds........................................................................................43
ARTICLE III The Revolving Credit Facility........................................................................44
III.1. Revolving Loans........................................................................................44
III.2. Payment of Interest....................................................................................46
III.3. Payment of Principal...................................................................................47
III.4. Manner of Payment......................................................................................47
III.5. Revolving Notes and Swing Line Notes...................................................................48
III.6. Pro Rata Payments......................................................................................48
III.7. Optional Commitment Reductions.........................................................................48
III.8. Conversions and Elections of Subsequent Interest Periods...............................................49
III.9. Increase and Decrease in Amounts.......................................................................49
III.10. Unused Fee............................................................................................50
III.11. Deficiency Advances; Failure to Purchase Participations...............................................50
III.12. Use of Proceeds.......................................................................................51
III.13. Swing Line............................................................................................51
ARTICLE IV Letters of Credit.....................................................................................53
IV.1. Letters of Credit.......................................................................................53
IV.2. Reimbursement...........................................................................................53
IV.3. Letter of Credit Facility Fees..........................................................................57
IV.4. Administrative Fees.....................................................................................57
ARTICLE V Security...............................................................................................58
V.1. Security Interest........................................................................................58
V.2. Stock Pledge.............................................................................................58
V.3. Guaranty.................................................................................................58
V.4. Mortgages................................................................................................59
V.5. Intellectual Property....................................................................................59
V.6. Information Regarding Collateral.........................................................................59
V.7. Further Assurances.......................................................................................60
ARTICLE VI Change in Circumstances...............................................................................61
VI.1. Increased Cost and Reduced Return.......................................................................61
VI.2. Limitation on Types of Loans............................................................................62
VI.3. Illegality..............................................................................................63
VI.4. Treatment of Affected Loans.............................................................................63
VI.5. Compensation............................................................................................63
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VI.6. Taxes...................................................................................................64
VI.7. Replacement Banks.......................................................................................66
ARTICLE VII Conditions to Effectiveness..........................................................................67
VII.1. Conditions to Effectiveness............................................................................67
VII.2. Conditions of Loans and Letter of Credit...............................................................71
ARTICLE VIII Representations and Warranties......................................................................73
VIII.1. Organization and Authority............................................................................73
VIII.2. Loan Documents........................................................................................73
VIII.3. Solvency..............................................................................................74
VIII.4. Subsidiaries and Shareholders.........................................................................74
VIII.5. Ownership Interests...................................................................................74
VIII.6. Financial Condition...................................................................................74
VIII.7. Title to Properties...................................................................................75
VIII.8. Taxes.................................................................................................76
VIII.9. Other Agreements......................................................................................76
VIII.10. Litigation...........................................................................................76
VIII.11. Margin Stock.........................................................................................76
VIII.12. Investment Company...................................................................................76
VIII.13. Intellectual Property................................................................................77
VIII.14. No Untrue Statement..................................................................................77
VIII.15. No Consents, Etc.....................................................................................77
VIII.16. Employee Benefit Plans...............................................................................77
VIII.17. No Default...........................................................................................79
VIII.18. Hazardous Materials..................................................................................79
VIII.19. Employment Matters...................................................................................79
VIII.20. RICO.................................................................................................80
VIII.21. Year 2000 Compliance.................................................................................80
VIII.22. Transaction Agreement Representations................................................................80
ARTICLE IX Affirmative Covenants.................................................................................81
IX.1. Financial Reports, Etc..................................................................................81
IX.2. Maintain Properties and Agreements......................................................................82
IX.3. Existence, Qualification, Etc...........................................................................83
IX.4. Regulations and Taxes...................................................................................83
IX.5. Insurance...............................................................................................83
IX.6. True Books..............................................................................................83
IX.7. Right of Inspection.....................................................................................84
IX.8. Observe all Laws........................................................................................84
IX.9. Covenants Extending to Other Persons....................................................................84
IX.10. Officer's Knowledge of Default.........................................................................84
IX.11. Suits or Other Proceedings.............................................................................84
IX.12. Notice of Discharge of Hazardous Material or Environmental Complaint...................................84
IX.13. Environmental Compliance...............................................................................85
IX.14. Indemnification........................................................................................85
IX.15. Further Assurances.....................................................................................85
IX.16. Employee Benefit Plans.................................................................................85
IX.17. Termination Events.....................................................................................86
IX.18. ERISA Notices..........................................................................................86
IX.19. Continued Operations...................................................................................86
IX.20. Use of Proceeds........................................................................................86
IX.21. New Subsidiaries; Minority Interests...................................................................86
ARTICLE X Negative Covenants.....................................................................................89
X.1. Indebtedness.............................................................................................89
X.2. Liens....................................................................................................90
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X.3. Investments; Acquisitions................................................................................91
X.4. Merger or Transfer of Assets.............................................................................91
X.5. Transactions with Affiliates.............................................................................92
X.6. Compliance with ERISA....................................................................................93
X.7. Fiscal Year..............................................................................................93
X.8. Dissolution, etc.........................................................................................94
X.9. Hedging Obligations......................................................................................94
X.10. Dividends, Redemptions and Other Payments...............................................................94
X.11. Subordinated Debt.......................................................................................94
X.12. Defaults Under Other Agreements.........................................................................94
X.13. Compensation; Reimbursement of Expenses.................................................................95
X.14. Change in Accountants...................................................................................95
X.15. Limitations on Sales and Leasebacks.....................................................................95
X.16. Negative Pledge Clauses.................................................................................95
X.17. Intellectual Property...................................................................................95
X.18. Licenses................................................................................................95
X.19. Amendment of Documents..................................................................................96
X.20. Limitations on Certain Restrictive Covenants............................................................96
X.21. Limitations on Business Activities......................................................................96
X.22. Financial Covenants.....................................................................................96
ARTICLE XI Events of Default and Acceleration....................................................................99
XI.1. Events of Default.......................................................................................99
XI.2. Agent to Act...........................................................................................103
XI.3. Cumulative Rights......................................................................................103
XI.4. No Waiver..............................................................................................103
XI.5. Allocation of Proceeds.................................................................................103
ARTICLE XII The Agent...........................................................................................105
XII.1. Appointment, Powers, and Immunities...................................................................105
XII.2. Reliance by Agent.....................................................................................105
XII.3. Defaults..............................................................................................106
XII.4. Rights as Lender......................................................................................106
XII.5. Indemnification.......................................................................................106
XII.6. Non-Reliance on Agent and Other Lenders...............................................................107
XII.7. Resignation of Agent..................................................................................107
XII.8. Fees..................................................................................................107
ARTICLE XIII Miscellaneous......................................................................................108
XIII.1. Assignments and Participations.......................................................................108
XIII.2. Notices..............................................................................................110
XIII.3. Right of Set-off; Adjustments........................................................................111
XIII.4. Survival.............................................................................................112
XIII.5. Expenses; Indemnification............................................................................112
XIII.6. Amendments and Waivers...............................................................................113
XIII.7. Counterparts.........................................................................................114
XIII.8. Termination..........................................................................................114
XIII.9. Confidentiality......................................................................................114
XIII.10. Severability........................................................................................115
XIII.11. Entire Agreement....................................................................................115
XIII.12. Agreement Controls..................................................................................115
XIII.13. Usury Savings Clause................................................................................115
XIII.14. Governing Law; Waiver of Jury Trial.................................................................116
EXHIBIT A Applicable Commitment Percentages.................................................................26
EXHIBIT B Form of Assignment and Acceptance..................................................................1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative.................................1
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EXHIBIT D-1 Form of Borrowing Notice.........................................................................1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans.......................................................1
EXHIBIT E Form of Interest Rate Selection Notice.............................................................1
EXHIBIT F-1 Form of Term Note A..............................................................................1
EXHIBIT F-2 Form of Term Note B..............................................................................1
EXHIBIT F-3 Form of Revolving Note...........................................................................1
EXHIBIT F-4 Form of Swing Line Note..........................................................................1
EXHIBIT G FORM OF STOCK PLEDGE AGREEMENT STOCK PLEDGE AGREEMENTTHIS STOCK PLEDGE AGREEMENT (this.............1
EXHIBIT I FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT...................................................1
EXHIBIT J FORM OF FACILITY GUARANTY..........................................................................1
EXHIBIT K FORM OF BORROWING BASE CERTIFICATE.................................................................1
EXHIBIT L FORM OF COMPLIANCE CERTIFICATE.....................................................................1
EXHIBIT M LANDLORD WAIVER AND ESTOPPEL CERTIFICATETO: NationsBank, N.A.Independence Center, NC1
001-15-04Charlotte, North Carolina 28255Attention: _______________, Agency
Services________________________________________________ (the................................................1
EXHIBIT O FORM OF MORTGAGE...................................................................................1
ARTICLE ________`_ DEFINITIONS....................................................................................5
_ Definitions..................................................................................................5
_ Defined Terms...............................................................................................13
ARTICLE ________`_ GRANT.........................................................................................14
_ Grant.......................................................................................................14
_ Defeasance and Reconveyance.................................................................................14
_ Provisions Concerning Particular States.....................................................................15
_ Credit Agreement............................................................................................17
ARTICLE ________`_ WARRANTIES AND REPRESENTATIONS................................................................18
_ Title to Mortgaged Property and Lien of this Instrument.....................................................18
_ [Intentionally Omitted].....................................................................................18
_ Encumbered Leases...........................................................................................18
_ Powers of Termination and Rights of Reverter................................................................19
_ Wetlands....................................................................................................19
_ Environmental Matters.......................................................................................20
ARTICLE ________`_ AFFIRMATIVE COVENANTS.........................................................................21
_ Payment and Performance.....................................................................................21
_ Compliance with Legal Requirements..........................................................................21
_ Lien Status.................................................................................................21
_ Payment of Impositions and Other Amounts....................................................................21
_ Repair......................................................................................................22
_ Insurance...................................................................................................23
_ Restoration Following Casualty..............................................................................25
_ Application of Proceeds.....................................................................................25
_ Inspection..................................................................................................26
_ Leases......................................................................................................26
_ Appraisals..................................................................................................27
_ Taxes.......................................................................................................27
_ Collection Costs............................................................................................27
_ [Intentionally Omitted.]....................................................................................28
_ Estoppel Certificates.......................................................................................28
_ Creation and Recordation of Additions and Betterments.......................................................28
_ Consents....................................................................................................28
_ Covenants Relating to Encumbered Leases.....................................................................28
_ Lessor's Bankruptcy.........................................................................................29
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_ Proceeds of Sales of Assets.................................................................................30
_ Change of Name or Address...................................................................................30
_ Environmental Assessment Reports............................................................................31
_ Notice of and Response to Environmental Complaint...........................................................31
_ Indemnification.............................................................................................31
ARTICLE ________`_ NEGATIVE COVENANTS............................................................................33
_ Use Violations..............................................................................................33
_ Waste.......................................................................................................33
_ Transfer of Mortgaged Property; Partial Release.............................................................33
_ Rights of Reverter and Powers of Termination................................................................33
ARTICLE ________`_ DEFAULT AND FORECLOSURE.......................................................................35
_ Remedies....................................................................................................35
_ No Conditions Precedent to Exercise of Remedies.............................................................41
_ Release of and Resort to Collateral.........................................................................42
_ Waivers.....................................................................................................42
_ Discontinuance of Proceedings...............................................................................42
_ Application of Proceeds.....................................................................................42
_ Cooperation.................................................................................................43
ARTICLE ________`_ CONDEMNATION..................................................................................44
_ General.....................................................................................................44
_ Rebuilding, Restoration and Repair..........................................................................44
ARTICLE ________`_ SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS.........................................45
_ Assignment..................................................................................................45
_ Collection of Rents.........................................................................................46
_ Beneficiary's Powers of Attorney............................................................................46
_ Grantor Remains Liable......................................................................................47
_ Grantor's Representations and Warranties....................................................................48
_ Grantor's Covenants.........................................................................................48
_ Effect of Release of Mortgaged Property.....................................................................50
_ Hold Harmless...............................................................................................50
ARTICLE ________`_ CONCERNING THE TRUSTEE........................................................................52
_ No Required Action..........................................................................................52
_ Certain Rights..............................................................................................52
_ Retention of Moneys.........................................................................................52
_ Successor Trustees..........................................................................................53
_ Perfection of Appointment...................................................................................53
_ Succession Instruments......................................................................................53
_ No Representation by Trustee................................................................................53
_ Individual Beneficiary......................................................................................54
_ Individual Trustees.........................................................................................54
_ Mortgage States.............................................................................................55
ARTICLE ________`_ MISCELLANEOUS.................................................................................56
_ Performance at Grantor's Expense............................................................................56
_ Survival of Obligations.....................................................................................56
_ Further Assurances..........................................................................................56
_ Recording and Filing........................................................................................56
_ Notices.....................................................................................................56
_ No Waiver...................................................................................................58
_ Beneficiary's and Secured Creditors' Right to Perform the Obligations.......................................58
_ Covenants Running with the Land.............................................................................59
_ Successors and Assigns......................................................................................59
_ Severability................................................................................................59
_ Entire Agreement and Modification...........................................................................60
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_ APPLICABLE LAW..............................................................................................60
_ No Partnership; Control in Grantor..........................................................................62
_ Headings....................................................................................................63
_ Hold Harmless...............................................................................................63
_ Pronouns and Plurals........................................................................................63
_ WAIVER OF TRIAL BY JURY.....................................................................................64
_ Assignment..................................................................................................64
_ No Merger...................................................................................................64
_ Enforceability of Lien......................................................................................64
_ Knowledge...................................................................................................64
_ Best Efforts................................................................................................64
_ Usury Savings Clause........................................................................................64
_ Payment of Prior Encumbrances...............................................................................65
_ Waiver......................................................................................................66
EXHIBIT A Land or Encumbered Leases.........................................................................69
EXHIBIT B Fee Owner of Land Underlying Encumbered Lease.....................................................70
EXHIBIT P FORM OF BORROWER'S COUNSEL OPINION................................................................71
Schedule 1.1 Material Leased Facilities......................................................................1
Schedule 1.2 Material Contracts..............................................................................2
Schedule 1.3 Existing Letters of Credit......................................................................3
Schedule 1.4.................................................................................................4
Schedule 5.6 Collateral Information..........................................................................1
Schedule 8.4 Subsidiaries and Investments in Other Persons...................................................2
Schedule 8.6(c) Consolidated Balance Sheets..................................................................3
Schedule 8.6(d) Indebtedness and Contingent Obligations......................................................4
Schedule 8.7 Liens..........................................................................................5
Schedule 8.10 Litigation.....................................................................................6
Schedule 8.13 Intellectual Property Matters..................................................................7
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AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 7, 1998
(the "Agreement"), is made by and among WINDMERE-DURABLE HOLDINGS, INC., a
Florida corporation having its principal place of business in Miami Lakes,
Florida (the "Borrower"), NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association organized and existing under the laws of the United States, in its
capacity as a Lender ("NationsBank"), and each other financial institution
executing and delivering a signature page hereto and each other financial
institution which may hereafter execute and deliver an instrument of assignment
with respect to this Agreement pursuant to Section 13.1 hereof (hereinafter such
financial institutions may be referred to individually as a "Lender" or
collectively as the "Lenders"), and NATIONSBANK, NATIONAL ASSOCIATION, a
national banking association organized and existing under the laws of the United
States, in its capacity as agent for the Lenders (in such capacity, and together
with any successor agent appointed in accordance with the terms of Article XII,
the "Agent");
W I T N E S S E T H:
WHEREAS, the Borrower, NationsBank and the Agent are parties to that
certain Credit Agreement dated as of June 26, 1998 (the "Existing Credit
Agreement") pursuant to which NationsBank has made available to the Borrower
credit facilities up to an aggregate amount of $345,000,000 consisting of (a) a
revolving credit facility in the maximum aggregate principal amount at any time
outstanding of $160,000,000, which includes (i) a letter of credit facility of
$20,000,000 and (ii) a swing line facility of $10,000,000, and (b) a term loan A
facility in the maximum principal amount of $90,000,000, (c) a term loan B
facility in the maximum principal amount of $75,000,000 and (d) a term loan C
facility in the maximum principal amount of $20,000,000; and
WHEREAS, the Borrower has requested and NationsBank and the Agent have
agreed to amend and restate the Existing Credit Agreement in its entirety in
order to reflect, among other things, the prepayment of certain Loans
outstanding under the Existing Credit Agreement, the replacement of the
Subordinated Bridge Debt (as defined in the Existing Agreement) with the
Permanent Junior Financing (as defined in the Existing Agreement), and the
assignment by NationsBank of a portion of its rights and obligations under the
Existing Credit Agreement to the Lenders party hereto;
WHEREAS, NationsBank is assigning a portion of its interest in the
Existing Credit Agreement to the Lenders and simultaneously with the execution
of this Agreement the Lenders by their execution of this Agreement and payment
to the Agent pursuant to the terms hereof of their portion of outstanding Loans
will acquire interests in a portion of the Loans made pursuant to this
Agreement;
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WHEREAS, the Lenders are willing to continue to make the credit
facilities that remain outstanding available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby amend
and restate the Existing Credit Agreement in its entirety and agree as follows:
ARTICLE I
Definitions and Terms
I.1 Assignment;Amendment and Restatement.
(a) NationsBank hereby sells and assigns to each Lender, without
recourse and without representation or warranty except as expressly set forth in
this Section 1.1(a), and each Lender hereby purchases and assumes from
NationsBank, an interest in and to the NationsBank's rights and obligations
under the Existing Credit Agreement as of the date hereof equal to the
percentage interest specified on Exhibit A of all outstanding rights and
obligations under the Existing Credit Agreement. After giving effect to such
sale and assignment, each Lender's Commitment will be as set forth on Exhibit A.
NationsBank (i) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest has
not otherwise been pledged, assigned or hypothecated by it and is free and clear
of any adverse claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any other instrument or document furnished pursuant thereto; and
(iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of any Credit Party or the performance or
observance by any Credit Party of any of its obligations under the Loan
Documents or any other instrument or document furnished pursuant thereto. Each
Lender (A) confirms that it has received copies of the financial statements
referred to in Section 8.1 hereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into this Credit Agreement; and (B) agrees that it will, independently and
without reliance upon the Agent, NationsBank 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
the Credit Agreement;
(b) The Borrower, the Agent and the Lenders hereby agree that upon the
effectiveness of this Agreement, the terms and provisions of the Existing Credit
Agreement shall be and hereby are amended and restated in their entirety by the
terms and conditions of this Agreement and the terms and provisions of the
Existing Credit Agreement, except as otherwise provided in the next paragraph,
shall be superseded by this Agreement.
Notwithstanding the amendment and restatement of the Existing Credit
Agreement by this Agreement, the Borrower shall continue to be liable to the
Agent and the Lenders with
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respect to agreements on the part of the Borrower under the Existing Credit
Agreement to indemnify and hold harmless the Agent and the Lenders from and
against all claims, demands, liabilities, damages, losses, costs, charges and
expenses to which the Agent and the Lenders may be subject arising in connection
with the Existing Credit Agreement and as to which the Borrower has agreed under
the Existing Credit Agreement to indemnify and hold harmless the Agent and the
Lenders. This Agreement is given as a substitution of, and not as a payment of,
the obligations of the Borrower under the Existing Credit Agreement and is not
intended to constitute a novation of the Existing Credit Agreement. On the
Closing Date a portion of the indebtedness evidenced by the notes issued under
the Existing Credit Agreement shall be allocated among the Lenders in order that
after giving effect thereto Lenders shall have the Revolving Credit Commitment,
Term Loan A Commitment or Term Loan B Commitment, as the case be, described on
Exhibit A. Except as otherwise selected by the Borrower by delivery of a
Borrowing Notice or Interest Rate Selection Notice prior to the Closing Date in
accordance with the terms hereof, upon the effectiveness of this Agreement all
amounts outstanding and owing by Borrower under the Existing Credit Agreement as
of the Closing Date, shall constitute Advances hereunder accruing interest with
respect to the Base Rate Loans under the Existing Credit Agreement, at the Base
Rate hereunder.
By execution or acknowledgment of this Credit Agreement all parties
hereto agree that (i) each of the Security Instruments and other Loan Documents
is hereby amended such that all references to the Existing Credit Agreement and
the Loans thereunder shall be deemed to refer to this Credit Agreement and the
continuation of the Loans hereunder, (ii) the Facility Guaranty is reaffirmed
and (iii) all security interests and liens granted under the Security
Instruments shall continue and secure the Obligations hereunder and the
obligations of the Guarantors under the Facility Guaranty.
1.2 Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acceleration Event" means the occurrence of an Event of
Default and acceleration of all obligations under the Credit Agreement
and the Notes pursuant to Article XI hereof.
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute any
material part of the assets of such Person or of a line or lines of
business conducted by such Person.
"Advance" means a borrowing under the Revolving Credit
Facility consisting of a Base Rate Loan or a Eurodollar Rate Loan or
the advance of any Term Loan on the Closing Date.
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"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock of
the Borrower or 10% or more of any class of the outstanding voting
stock (or in the case of a Person which is not a corporation, 10% or
more of the equity interest) of which is beneficially owned or held by
the Borrower. 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 stock, by contract or otherwise.
"Applicable Commitment Percentage" means, with respect to each
Lender at any time, (i) with respect to the Revolving Credit Facility
and the Participations, a fraction, the numerator of which shall be
such Lender's Revolving Credit Commitment and the denominator of which
shall be the Total Revolving Credit Commitment, and (ii) with respect
to each of the Term Loan A Facility and the Term Loan B Facility, as
the case may be, a fraction, the numerator of which shall be such
Lender's Term Loan A Commitment or Term Loan B Commitment, as
applicable, and the denominator of which shall be the Total Term Loan A
Commitment or the Total Term Loan B Commitment, as applicable, which
Applicable Commitment Percentage in each case for each Lender as of the
Closing Date is as set forth in Exhibit A hereto; provided that each
Applicable Commitment Percentage of each Lender shall be increased or
decreased to reflect any assignments to or by such Lender effected in
accordance with Section 13.1 hereof.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" means that percent per annum set forth
below, which shall be based upon the Consolidated Leverage Ratio for
the period of four consecutive fiscal quarters most recently ended as
specified below:
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Applicable Margin Applicable Applicable Applicable
for Eurodollar Margin for Margin for Base Margin for Base
Rate Loans that Eurodollar Rate Loans that Rate Loans that
are Revolving Rate Loans are Revolving are Segments of
Consolidated Loans or Segments that are Loans or Term Loan B
Tier Leverage Ratio of Term Loan A Segments of Segments of Term
Term Loan B Loan A
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I Equal to or less 1.75% 2.75% .75% 1.75%
than 4.00 to 1.00
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II Greater than 4.00 2.00% 2.75% 1.00% 1.75%
to 1.00 and less
than or equal to
4.50 to 1.00
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III Greater than 4.50 2.25% 3.00% 1.25% 2.00%
to 1.00 and less
than or equal to
5.00 to 1.00
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IV Greater than 5.00 2.50% 3.00% 1.50% 2.00%
to 1.00
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The Applicable Margin shall be established at the end of each fiscal
quarter of the Borrower (each, a "Determination Date"). Any change in
the Applicable Margin following each Determination Date shall be
determined based upon the computations set forth in the certificate
furnished to the Agent pursuant to Section 9.1(a) and (b) hereof,
subject to review and confirmation of such computations by the Agent,
and shall be effective (the "Effective Date") commencing on the first
Business Day next following the date such certificate is received (or,
if earlier, the date such certificate was required to be delivered)
until the first Business Day following the date on which a new
certificate is delivered or is required to be delivered, whichever
shall first occur; provided however, if the Borrower shall fail to
deliver any such certificate within the time period required by Section
9.1 hereof, then the Applicable Margin shall be Tier IV until the
appropriate certificate is so delivered. From the Closing Date to the
first Effective Date next following December 31, 1998 (the "Initial
Period"), the Applicable Margin shall be as set forth in Tier IV;
provided further, however, that if the Stock Offering is consummated
prior to the end of the Initial Period, the Applicable Margin shall be
as set forth in Tier III for the remainder of the Initial Period; and
provided further, however, that for the Determination Dates occurring
December 31, 1998 and March 31, 1999 the calculation of Consolidated
EBITDA for determining the Consolidated Leverage Ratio (for the
purposes of calculating the Applicable Margin only) shall be made as if
the HPG Acquisition were consummated on January 1, 1998 and shall
include such pro forma adjustments as were permitted in the
Registration Statement, all in form satisfactory to the Agent.
"Applicable Period" means (i) for the fiscal quarter of the
Borrower and its Subsidiaries ending June 30, 1999 and each fiscal
quarter of the Borrower and its Subsidiaries thereafter, a Four-Quarter
Period, and (ii) for the fiscal quarters of the Borrower and its
Subsidiaries ending September 30, 1998, December 31, 1998, and March
31, 1999 the one, two and three fiscal quarter periods ending on such
dates. For purposes of determining the Consolidated Leverage Ratio, the
Consolidated Interest Coverage Ratio and the Consolidated Fixed Charge
Ratio for the one, two or three fiscal
5
13
quarter periods of the Borrower and its Subsidiaries ending September
30, 1998, December 31, 1998 and March 31, 1999, Consolidated EBITDA,
Consolidated Interest Expense and Consolidated Fixed Charges shall be
determined by multiplying Consolidated EBITDA, Consolidated Interest
Expense and Consolidated Fixed Charges (other than required principal
payments) for such periods by four, two and four-thirds, respectively.
Commencing with the fiscal quarter ending June 30, 1999 and thereafter,
such ratios shall be calculated for a Four-Quarter Period.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Approved Fund" means, with respect to any Lender that is a
fund that invests in commercial loans, any other fund that invests in
commercial loans, and is managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
"Approved Receivables Factoring Program" means the receivables
factoring program to be entered into with the Factor on or about the
date hereof or any other similar factoring or receivables insurance
program of the Borrower or its Subsidiaries approved in writing by the
Required Lenders, in each case, such program to be applicable only to
accounts receivable from Foreign Account Debtors (as defined in the
definition of "Eligible Receivables") and subject to the Intercreditor
Agreement.
"Approved Stock Option Plan" means (a) each stock option plan
(whether relating to employees or directors) or agreement pursuant to
which the options listed on Schedule 1.4 hereto are listed and (b) any
executive or employee stock option or incentive plan hereafter adopted
by the board of directors of the Borrower.
"Asheboro Facility" means the manufacturing facility of the
Seller leased by the Borrower and located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, other than as permitted under Section 10.4
hereof, of (a) any or all of the assets, excluding cash and cash
equivalents, of the Borrower or its Subsidiaries, and (b) any of the
capital stock, or securities or investments exchangeable, exercisable
or convertible for or into, or otherwise entitling the holder to
receive any of the capital stock, of any Person (other than a
disposition to a Guarantor).
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B hereto (with blanks appropriately
filled in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 13.1 hereof.
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14
"Authorized Representative" means any of the President or any
Vice President of the Borrower or, with respect to financial matters,
the chief financial officer of the Borrower, or any other Person
expressly designated by the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
of Exhibit C hereto.
"Base Rate" means, for any day, the sum of (a) higher of (i)
the Federal Funds Rate for such day plus one-half of one percent (0.5%)
and (ii) the Prime Rate for such day, plus (b) the Applicable Margin.
Any change in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date of such
change in the Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Revolving Loan or Segment of a Term
Loan for which the rate of interest is determined by reference to the
Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan made either
(i) to satisfy Reimbursement Obligations arising from a drawing under a
Letter of Credit or (ii) to pay NationsBank in respect of Swing Line
Outstandings.
"Base Rate Segment" means a Segment bearing interest or to
bear interest at the Base Rate.
"Black & ▇▇▇▇▇▇ License Agreement" means that certain
Trademark License Agreement dated as of June 26, 2998 among The Black &
▇▇▇▇▇▇ Corporation and the Borrower.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account with the
Agent, which may be maintained at one or more offices of the Agent or
an agent of the Agent.
"Borrowing Base" means, as of the date of determination
thereof, (i) Eligible Receivables multiplied by 85% plus (ii) the
value, determined at the lower of cost or market value in accordance
with GAAP, of all Eligible Inventory multiplied by (a) for the period
from July 1 through December 31 of each year, 65% and (b) at all other
times, 50%, less (iii) 50% of the aggregate amount of all Indebtedness
of Foreign Subsidiaries permitted under Section 10.1(i) outstanding as
of such date of determination; provided, however, at no time shall the
amount of the Borrowing Base attributable to Eligible Inventory exceed
the amount of the Borrowing Base attributable to Eligible Receivables.
"Borrowing Base Certificate" means a certificate of an
Authorized Representative in the form attached hereto as Exhibit K
hereto.
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15
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of Exhibits D-1 and D-2,
respectively.
"Business Day" means, (i) with respect to any Base Rate Loan,
any day which is not a Saturday, Sunday or a day on which banks in the
States of New York and North Carolina are authorized or obligated by
law, executive order or governmental decree to be closed and, (ii) with
respect to any Eurodollar Rate Loan, any day which is a Business Day,
as described above, and on which the relevant international financial
markets are open for the transaction of business contemplated by this
Agreement in London, England, New York, New York and Charlotte, North
Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, and (ii) with respect to any Capital Lease entered into by
the Borrower or its Subsidiaries during such period, the present value
of the lease payments due under such Capital Lease over the term of
such Capital Lease applying a discount rate equal to the interest rate
provided in such lease (or in the absence of a stated interest rate,
the rate used in preparation of the financial statements described in
Section 9.1(a)) all the foregoing in accordance with GAAP applied on a
Consistent Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 7.1 hereof have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all property of the
Borrower, any Subsidiary or any other Person in which the Agent or any
Lender is granted a Lien as security for all or any portion of the
Obligations under any Security Instrument.
"Collateral Assignment of Contracts" means that certain
Collateral Assignment of Contracts dated as of June 26, 1998 by HP
Mexico in favor of the Agent pursuant to which HP Mexico has
collaterally assigned all of their rights and interests under certain
material contracts identified therein.
8
16
"Commitments" means the Revolving Credit Commitment, the
Letter of Credit Commitment, the Term Loan A Commitment and the Term
Loan B Commitment of each Lender.
"Condemnation Award" means the cash proceeds received by the
Borrower or any Subsidiary from any condemnation or other taking (by
eminent domain or otherwise) of the whole or any part of the property
of the Borrower or any Subsidiary by any Governmental Authority.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to in
Section 8.6(a) hereof.
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries, for the Applicable Period ending as of the date of
determination, the sum of, without duplication, (i) Consolidated Net
Income, (ii) Consolidated Interest Expense, (iii) taxes on income, (iv)
amortization and (v) depreciation, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis; provided,
however, that with respect to an Acquisition that is accounted for as a
"purchase", for the four fiscal quarters ending after the date of such
Acquisition, Consolidated EBITDA shall include the results of
operations of such acquired Person or assets, which amounts shall be
determined on a historical pro forma basis as if such Acquisition had
been consummated as a "pooling of interest".
"Consolidated Excess Cash Flow" means, with respect to the
Borrower and its Subsidiaries for any Fiscal Year, (i) Consolidated
EBITDA for such period (including therein any net gain or loss, as
applicable, of an extraordinary nature otherwise excluded from the
calculation thereof in the definition of "Consolidated Net Income")
minus (ii) the sum of, without duplication, for such period (A) Capital
Expenditures, plus (B) Consolidated Interest Expense, plus (C) required
principal payments on Consolidated Funded Indebtedness and optional
prepayments of the Term Loans, plus (D) taxes on income paid during
such period, plus (E) all cash paid as part of the cost of any
Acquisition plus (F) all amounts included in the calculation of
Consolidated EBITDA for the purposes of this definition to the extent
such amounts are subject to the mandatory prepayment provisions of
Section 2.6(a), (b), (c) or (e) hereof.
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for the Applicable Period, the ratio of
(i) Consolidated EBITDA for such period less Capital Expenditures for
such period to (ii) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to Borrower
and its Subsidiaries for the Applicable Period, the sum of, without
duplication, (i) Consolidated Interest Expense, during such period, and
(ii) the principal amount of Consolidated Funded Indebtedness due and
payable during such period, all determined in accordance with GAAP
applied on a Consistent Basis.
9
17
"Consolidated Funded Indebtedness" means at any time as of
which the amount thereof is to be determined, all Indebtedness of the
Borrower and its Subsidiaries, all determined on a consolidated basis
in accordance with GAAP applied on a Consistent Basis.
"Consolidated Interest Coverage Ratio" means, with respect to
the Borrower and its Subsidiaries, for the Applicable Period, the ratio
of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
amortization of debt discounts, (ii) the amortization of all fees
payable in connection with the incurrence of Indebtedness to the extent
included in interest expense, and (iii) the portion of any liabilities
incurred in connection with Capital Leases allocable to interest
expense, all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Consolidated Leverage Ratio" means, for any date for which
the computation thereof is being made, the ratio of (i) Consolidated
Funded Indebtedness (determined as at such date) to (ii) Consolidated
EBITDA for the Applicable Period ending on (or most recently ended
prior to) such date.
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries less all operating and non-operating expenses (not related
to extraordinary events) of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding (for all
purposes other than (x) compliance with Section 10.22(a) hereof and (y)
the computation of Consolidated EBITDA utilized to determine Excess
Cash Flow) in such calculation (1) the amount of any net gains on the
sale, conversion or other disposition of capital assets, (2) the amount
of any net gains on the acquisition, retirement, sale or other
disposition of capital stock and other securities of the Borrower or
its Subsidiaries, (3) the amount of any net gains on the collection of
proceeds of life insurance policies, (4) any write-up of any asset, (5)
any other net gain of an extraordinary nature and (6) dividends and
distributions in respect of minority investments in Persons other than
Subsidiaries, all as determined in accordance with GAAP applied on a
Consistent Basis; provided, however, that for the purposes of
determining compliance with Section 10.22(a) hereof, there shall be
disregarded any increase in Consolidated Net Income upon giving effect
to an
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18
Acquisition which results from the treatment of such Acquisition as a
"pooling of interest" although such Acquisition was a "purchase"
transaction for GAAP purposes.
"Consolidated Net Worth" means the total of Borrower's and its
Subsidiaries' shareholders' equity as determined in accordance with
GAAP on a Consistent Basis.
"Contingent Obligation" of any Person means all contingent
liabilities required (or which, upon the creation or incurring thereof,
would be required) to be included in the financial statements
(including footnotes) of such Person in accordance with GAAP applied on
a Consistent Basis, including Statement No. 5 of the Financial
Accounting Standards Board, and any obligation of such Person
guaranteeing or in effect guaranteeing any Indebtedness, dividend or
other obligation of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including obligations of such
Person however incurred:
(1) to purchase such Indebtedness or other obligation
or any property or assets constituting security therefor;
(2) to advance or supply funds in any manner (i) for
the purchase or payment of such Indebtedness or other
obligation, or (ii) to maintain a minimum working capital, net
worth or other balance sheet condition or any income statement
condition of the primary obligor;
(3) to grant or convey any lien, security interest,
pledge, charge or other encumbrance on any property or assets
of such Person to secure payment of such Indebtedness or other
obligation;
(4) to lease property or to purchase securities or
other property or services primarily for the purpose of
assuring the owner or holder of such Indebtedness or
obligation of the ability of the primary obligor to make
payment of such Indebtedness or other obligation; or
(5) otherwise to assure the owner of the Indebtedness
or such obligation of the primary obligor against loss in
respect thereof.
Contingent Obligations shall be computed at the amount which,
in light of all the facts and circumstances existing at the time,
represent the amount which can reasonably be expected to become an
actual or matured liability of such Person.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 2.9 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
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19
"Control Subsidiary" means any entity not constituting a
Subsidiary hereunder but which would otherwise be included as a
subsidiary of the Borrower for consolidated financial reporting
purposes in accordance with GAAP.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 2.9 or 3.8 or Article VI hereof of one
Type of Loan into another Type of Loan.
"Core Business" means, with respect to the Borrower and its
Subsidiaries, the business of manufacturing and distributing of small
household and outdoor appliances, pet products and related items
consistent with past practices.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of consummation of any such Acquisition, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of the Borrower or any
Subsidiary to be transferred in connection therewith, (ii) any cash or
other property and the unpaid principal amount of any debt instrument
given as consideration, (iii) any Indebtedness assumed by the Borrower
or its Subsidiaries in connection with such Acquisition, and (iv) out
of pocket transaction costs for the services and expenses of attorneys,
accountants and other consultants incurred in effecting such a
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(A) the capital stock of the Borrower shall be valued (I) at its market
value as reported on the New York Stock Exchange with respect to shares
that are freely tradeable, and (II) with respect to shares that are not
freely tradeable, as determined by the Board of Directors of the
Borrower and, if requested by the Agent, determined to be a reasonable
valuation by the independent public accountants referred to in Section
9.1(a) hereof, (B) the capital stock of any Subsidiary shall be valued
as determined by the Board of Directors of the Borrower or such
Subsidiary and, if requested by the Agent, determined to be a
reasonable valuation by the independent public accountants referred to
in Section 9.1(a) hereof, and (C) with respect to any Acquisition
accomplished pursuant to the exercise of options or warrants or the
conversion of securities, the Cost of Acquisition shall include both
the cost of acquiring such option, warrant or convertible security as
well as the cost of exercise or conversion.
"Credit Party" means, collectively, the Borrower, each
Guarantor and each other Person providing Collateral pursuant to any
Security Instrument.
"Debt Offering" means a public or private offering of
Indebtedness (including, without limitation, any security constituting
Indebtedness which is exchangeable, exercisable or convertible for or
into, or otherwise entitling the holder to receive, equity securities)
of the Borrower or any Subsidiary (other than Indebtedness among the
Borrower and any Subsidiary or one Subsidiary and another Subsidiary);
provided, however, the term "Debt Offering" shall not include the
issuance of the Subordinated Notes.
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20
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to Base Rate Loans,
Swing Line Loans and Reimbursement Obligations, at a rate of interest
per annum which shall be two percent (2%) above the Base Rate and (iii)
in any case, the maximum rate permitted by applicable law, if lower.
"Direct Foreign Control Subsidiary" means any Foreign Control
Subsidiary whose outstanding voting stock is owned by the Borrower or a
Domestic Subsidiary.
"Direct Foreign Subsidiary" means any Foreign Subsidiary whose
outstanding voting stock is owned by the Borrower or a Domestic
Subsidiary.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
"Domestic Control Subsidiary" means any Control Subsidiary
which is organized under the laws of one of the states comprising the
United States of America, any territory thereof or the District of
Columbia.
"Domestic Subsidiary" means any Subsidiary which is organized
under the laws of one of the states comprising the United States of
America, any territory thereof or the District of Columbia.
"Eligible Assignee" means (i) a Lender; (ii) an affiliate or
Approved Fund of a Lender; and (iii) any other Person approved by the
Agent and, unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with Section 13.1
hereof, the Borrower, such approval not to be unreasonably withheld or
delayed by the Borrower or the Agent and such approval to be deemed
given by the Borrower if no objection is received by the assigning
Lender and the Agent from the Borrower within five Business Days after
notice of such proposed assignment has been provided by the assigning
Lender to the Borrower; provided, however, that neither the Borrower
nor an affiliate of the Borrower shall qualify as an Eligible Assignee.
"Eligible Inventory" means that domestic, Canadian and Mexican
inventory owned by the Borrower or any Guarantor which is determined by
the Agent in the reasonable exercise of its discretion to be Eligible
Inventory; provided, however, that none of the following shall be
Eligible Inventory:
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21
(i) inventory that is kept in any location other than
the warehouses identified on Schedule 1.1 hereto as owned or
leased warehouse locations;
(ii) inventory that is unfinished, damaged,
representing returned goods or is otherwise not readily
marketable;
(iii) inventory that is subject to any Lien or
otherwise not in conformity with any representation or
warranty contained in the Security Instruments; and
(iv) inventory upon which a security interest in favor
of the Agent for the benefit of the Lenders may not be
perfected.
"Eligible Receivables" means (a) all accounts receivable of
the Borrower or any Domestic Subsidiary owing from a Foreign Account
Debtor (as defined in clause (iii) below) which are subject to an
Approved Receivables Factoring Program, less any discount, reserve or
similar offset or recourse to the Borrower or any Subsidiary applicable
under such Approved Receivables Factoring Program, but only to the
extent the Borrower or such Domestic Subsidiary shall not have
assigned, transferred or otherwise conveyed such accounts receivable or
received any payment in respect of such accounts receivable pursuant to
such Approved Factoring Program and (b) those trade accounts receivable
of the Borrower and each Domestic Subsidiary of the Borrower which are
determined by the Agent in the reasonable exercise of its discretion to
be an Eligible Receivable; provided, however, that none of the
following shall be Eligible Receivables:
(ii) intercompany receivables;
(iii) receivables owed by the United States government
or any of its states, departments, agencies or
instrumentalities of any thereof;
(iv) unless supported by a letter of credit issued by
a financial institution, other than NationsBank, acceptable to
the Agent or as set forth in (a) above, receivables owed by
any Person not a United States or Canadian citizen or
corporation, partnership or other entity organized under the
laws of the United States or province of Canada or the
Commonwealth of Canada whose principal office is not located
within the United States or Canada (a "Foreign Account
Debtor");
(v) receivables of any customer more than 50% of
which receivables due the Borrower or any Domestic
Subsidiaries are more than 90 days past due;
(vi) receivables that are due or unpaid for more than
ninety (90) days from the original due date thereof;
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22
(vii) the portion of any receivable which is subject to
any offset, deduction, defense, dispute or counterclaim, so
long as no contest or dispute exist and no payment is being
withheld with respect to the remainder of such receivable; and
(viii) receivables of any customer with respect to which
any bankruptcy or insolvency proceeding has been commenced or
filed for and no court order exists directing payment with
respect to such receivable.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(ii) Government Securities;
(iii) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 180 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and ▇▇▇▇▇'▇;
(iv) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated "A-"
or better by S&P or "A3" or better by ▇▇▇▇▇'▇;
(v) Repurchase Agreements;
(vi) Municipal Obligations;
(vii) Pre-Refunded Municipal Obligations;
(viii) shares of mutual funds which invest in
obligations described in paragraphs (i) through (vi) above,
the shares of which mutual funds are at all times rated "AAA"
by S&P;
(ix) tax-exempt or taxable adjustable rate preferred
stock issued by a Person having a rating of its long term
unsecured debt of "A" or better by S&P or "A-1" or better by
▇▇▇▇▇'▇; and
(x) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by ▇▇▇▇▇'▇.
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23
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (A) is maintained for employees of the Borrower, any of its ERISA
Affiliates, or any Subsidiary or is assumed by the Borrower, any of its
ERISA Affiliates, or any Subsidiary in connection with any Acquisition
or (B) has at any time within the last six years been maintained for
the employees of the Borrower, any current or former ERISA Affiliate,
or any Subsidiary and (ii) any plan, arrangement, understanding or
scheme maintained by the Borrower or any Subsidiary that provides
retirement, deferred compensation, employee or retiree medical or life
insurance, severance benefits or any other benefit covering any
employee or former employee and which is administered under any Foreign
Benefit Law or regulated by any Governmental Authority other than the
United States of America.
"Environmental Laws" means, collectively, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, the Superfund Amendments and Reauthorization Act of 1986, the
Resource Conservation and Recovery Act, the Toxic Substances Control
Act, as amended, the Clean Air Act, as amended, the Clean Water Act, as
amended, any other "Superfund" or "Superlien" law or any other federal,
or applicable state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material.
"Equity Offering" means a public or private offering of equity
securities (including, without limitation, any security or investment
not constituting Indebtedness exchangeable, exercisable or convertible
for or into, or otherwise entitling the holder to receive, equity
securities) of the Borrower or any Subsidiary (other than securities
issued to the Borrower or another Subsidiary); provided, however, the
term "Equity Offering" shall not include any issuance of equity
securities whose aggregate market value when combined with all other
similar equity issuances, does not exceed $10,000,000 or which issuance
is in connection with the exercise of stock options or warrants granted
to, or purchase of restricted stock by, eligible participants under an
Approved Stock Option Plan.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate" means any Person or trade or business which
is a member of a group which is under common control with the Borrower
who together with the Borrower, is treated as a single employer within
the meaning of Section 414(b), (c), (m) or (of) of the Code.
"Eurodollar Rate Loan" means a Revolving Loan or Segment of a
Term Loan for which the rate of interest is determined by reference to
the Eurodollar Rate.
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24
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
Rate -------------------------------- Margin
1- Eurodollar Reserve Percentage
"Eurodollar Rate Segment" means a Segment bearing interest or
to bear interest at the Eurodollar Rate.
"Eurodollar Reserve Percentage" means, for any day, that
percentage (expressed as a decimal) which is in effect from time to
time under Regulation D or any successor regulation, as the maximum
reserve requirement (including any basic, supplemental, emergency,
special, or marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or against any
other category of liabilities that includes deposits by reference to
which the interest rate of Eurodollar Rate Loans is determined),
whether or not the Agent or any Lender has any Eurocurrency liabilities
subject to such requirements, without benefits of credits or proration,
exceptions or offsets that may be available from time to time to the
Agent or any Lender. The Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Event of Default" means any of the occurrences set forth as
such in Section 11.1 hereof.
"Existing Letters of Credit" means the letters of credit
listed on Schedule 1.3 hereto issued by NationsBank in favor of
Windmere Corporation under the Credit Agreement dated October 11, 1996.
"Facilities" means the Revolving Credit Facilities and the
Term Loan Facilities.
"Facility Guaranty" means (i) the Guaranty Agreement dated as
of June 26, 1998 between the Guarantors and the Agent for the benefit
of the Lenders, and (ii) any other Facility Guaranty otherwise
delivered pursuant to Section 9.21 hereof, each in the form of Exhibit
J hereto and each as the same may be amended, modified or supplemented.
"Facility Termination Date" means the date on which both the
Revolving Credit Termination Date and the Term Loan Termination Date
shall have occurred, no Letters of Credit shall remain outstanding or
all the Letters of Credit shall have been cash collateralized upon
terms satisfactory to the Agent, all Swap Agreements shall have been
terminated or cash collateralized upon terms satisfactory to the Agent
and the Borrower shall have fully paid and satisfied in full all other
Obligations.
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"Factor" means NationsBanc Commercial Corporation, as factor,
or any other factor from time to time party to an Approved Receivables
Factoring Program.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Year" means the twelve month fiscal period of the
Borrower beginning January 1 of each calendar year and ending the
following December 31 of such calendar year.
"Florida Office" means the land and buildings owned by the
Borrower located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Foreign Control Subsidiary" means any Control Subsidiary
organized under the laws of any jurisdiction other than one of the
states comprising the United States of America, any territory thereof
or the District of Columbia.
"Foreign Subsidiary" means any Subsidiary organized under the
laws of any jurisdiction other than one of the states comprising the
United States of America, any territory thereof or the District of
Columbia.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public Accountants
or which have other substantial authoritative support and are
applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
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"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government, including but not limited to Malaysia,
Mexico and Canada.
"Guarantors" means the Domestic Subsidiaries.
"Hazardous Material" means and includes any pollutant,
contaminant, hazardous, toxic or dangerous waste, substance or material
(including petroleum products, asbestos-containing materials and lead),
the management, generation, handling, storage, transportation,
disposal, treatment, release, discharge or emission of which is subject
to any Environmental Law.
"Hedging Obligations" means any and all obligations of the
Borrower, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under
(i) any and all agreements, devices or arrangements designed to protect
at least one of the parties thereto from the fluctuations of interest
rates, currency exchange rates or forward rates applicable to such
party's commodities, assets, liabilities or exchange transactions,
including, but not limited to, Dollar-denominated or cross-currency
interest rate exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward
rate currency or interest rate options, puts, warrants and those
commonly known as interest rate "swap" agreements, and forward
commodity price options, puts, warrants and those commonly known as
commodity "swap" agreements; and (ii) any and all cancellations,
buybacks, reversals, terminations or assignments of any of the
foregoing;
"HP Mexico" means Household Products de Mexico, S.A. de C.V.
"HPG" means the Household Products Group of the Seller,
excluding the cleaning and lighting businesses, as described in the
Transaction Agreement.
"HPG Acquisition" means the purchase by the Borrower of HPG
from the Seller pursuant to the terms of the Transaction Documents.
"Indebtedness" means with respect to any Person, without
duplication, all Indebtedness for Money Borrowed, all indebtedness of
such Person for the acquisition of property other than purchases of
property, product, merchandise and services in the ordinary course of
business (so long as such amounts are payable in less than twelve (12)
months), all indebtedness secured by any Lien on the property of such
Person whether or not such indebtedness is assumed (except unperfected
Liens incurred in the ordinary
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course of business and not in connection with the borrowing of money),
all liability of such Person by way of endorsements (other than for
collection or deposit in the ordinary course of business), all
Contingent Obligations, the face amount of all issued and outstanding
letters of credit, and all Hedging Obligations; provided that in no
event shall the term Indebtedness include capital stock surplus and
retained earnings, minority interests in the common stock of
Subsidiaries, lease obligations (other than pursuant to Capital
Leases), reserves for deferred income taxes and investment credits,
other deferred credits or reserves.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all amounts owed, including principal,
interest, fees, indemnities, costs, premium, damages and expenses, in
respect of money borrowed, including without limitation the
Subordinated Notes and all Capital Leases and the deferred purchase
price of any property or asset, evidenced by a promissory note, bond,
debenture or similar written obligation for the payment of money
(including conditional sales or similar title retention agreements),
other than trade payables incurred in the ordinary course of business.
"Indenture" means the indenture entered into in connection
with the issuance of the Subordinated Notes.
"Insurance Award" means the net cash proceeds of any payment
made by any casualty insurer or self-insurance program of the Borrower
or any Subsidiary for any casualty or other loss with respect to the
whole or any part of the property of the Borrower or any Subsidiary
after deduction for taxes, fees and reasonable expenses incurred in the
realization thereof.
"Intellectual Property" has the meaning given to such term in
Section 8.13 hereof.
"Intellectual Property Security Agreement" means, collectively
(or individually as the context may indicate), (i) the Intellectual
Property Security Agreement dated as of the Closing Date and executed
by the Borrower and certain of its Domestic Subsidiaries in favor of
the Agent and (ii) each other Intellectual Property Security Agreement
executed by the Borrower or a Domestic Subsidiary (whether of even date
herewith or delivered after the Closing Date pursuant to Article VI or
Section 9.21 hereof and whether executed individually or jointly and
severally with other Subsidiaries) in favor of the Agent to
collaterally secure payment and performance of its respective
obligations hereunder and under the Facility Guaranty, as applicable,
substantially in the form of Exhibit I attached hereto and incorporated
herein by reference, as from time to time amended, supplemented or
replaced.
"Interbank Offered Rate" means, for any Loan bearing interest
at the Eurodollar Rate for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
appearing on Telerate Page 3750 (or any successor page) as
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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 Loan bearing interest at
the Eurodollar Rate for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100th of 1%)
appearing on 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, if more
than one rate is specified on Reuters Screen LIBO Page, the applicable
rate shall be the arithmetic mean of all such rates.
"Intercreditor Agreement" means that certain Intercreditor
Agreement and Assignment of Factoring Proceeds by and among the Factor,
the Agent, the Borrower and certain Subsidiaries of the Borrower dated
on or about the date hereof, as from time to time amended, supplemented
or replaced.
"Interest Period" means, for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
converted and ending, at the Borrower's option, on the date one, two,
three or six months thereafter as notified to the Agent by the
Authorized Representative three (3) Business Days prior to the
beginning of such Interest Period; provided, that,
(ii) if the Authorized Representative fails to notify
the Agent of the length of an Interest Period three (3)
Business Days prior to the first day of such Interest Period,
the Loan for which such Interest Period was to be determined
shall be deemed to be a Base Rate Loan as of the first day
thereof;
(iii) if an Interest Period for a Eurodollar Rate Loan
would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day (unless such
extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest
Period shall end on the next preceding Business Day);
(iv) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month;
(v) no Interest Period shall extend past the Stated
Termination Date in the case of Revolving Loans, the Term Loan
A Maturity Date in the case of Term Loan A and the Term Loan B
Maturity Date in the case of Term Loan B; and
(vi) there shall not be more than twelve (12)
Interest Periods in effect on any day.
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"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the conversion of any Base Rate Loan into a Eurodollar Rate Loan in the
form of Exhibit E hereto.
"Issuing Bank" means initially NationsBank and thereafter any
Lender which is successor to NationsBank as issuer of Letters of Credit
under Article IV hereof.
"Junior Financing" means the permanent financing entered into
through the issuance of the Subordinated Notes.
"Junior Financing Documents" means the Indenture and all
related documents entered into connection with the transactions
contemplated thereby.
"Kmart Agreement" means that certain Purchase, Distribution
and Marketing Agreement dated as of January 27, 1997 between Kmart
Corporation and Salton/Maxim.
"Landlord Waivers" means, collectively, each of the landlord
waiver and estoppel letters delivered by the landlord of each material
facility now leased by the Borrower and any Guarantor, all of which are
listed on Schedule 1.1 hereto, or arising after the Closing Date and
delivered by the Borrower and the Guarantors, as applicable, pursuant
to Article VI or Section 9.21 hereof, substantially in the form of
Exhibit M hereto and incorporated herein by reference.
"LC Account Agreement" means the LC Account Agreement dated as
of June 26, 1998, between the Borrower and the Agent, as amended,
modified or supplemented from time to time.
"Lending Office" means, as to each Lender, the Lending Office
of such Lender designated on the signature pages hereof or in an
Assignment and Acceptance or such other office of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify
to the Authorized Representative and the Agent as the office by which
its Loans are to be made and maintained.
"Letter of Credit" means (i) a standby or documentary letter
of credit issued by the Issuing Bank for the account of the Borrower in
favor of a Person advancing credit or securing an obligation on behalf
of the Borrower and (ii) the Existing Letters of Credit.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
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Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
"Letter of Credit Facility" means the facility described in
Article IV hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount remaining undrawn under all Letters
of Credit plus the principal amount of all Reimbursement Obligations
then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any of the Revolving Loans, the Swing
Line Loans or the Term Loans.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties, the LC Account Agreement, the
Applications and Agreements for Letter of Credit, the Landlord Waivers
and all other instruments and documents heretofore or hereafter
executed or delivered to or in favor of any Lender, the Issuing Bank or
the Agent in connection with the Loans made and transactions
contemplated under this Agreement, as the same may be amended,
supplemented or replaced from the time to time.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations or condition, financial or
otherwise, of the Borrower or any of its Subsidiaries or any other
Credit Party, (ii) the ability of any Credit Party to pay or perform
its respective obligations, liabilities and indebtedness under the Loan
Documents as such payment or performance becomes due in accordance with
the terms thereof, or (iii) the rights, powers and remedies of the
Agent or any Lender under any Loan Document or the validity, legality
or enforceability thereof (including for purposes of clauses (ii) and
(iii) the imposition of burdensome conditions thereon).
"Material Contract" means any contract or agreement (including
license agreements) the termination of which or the default by any
party thereto could
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reasonably be expected to have a Material Adverse Effect; such Material
Agreements as of the Closing Date being listed on Schedule 1.2 hereto.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Mortgages" means, collectively (or individually as the
context may indicate), each mortgage or similar agreement executed by
the Borrower or any Subsidiary and delivered after the Closing Date
pursuant to Article VI or Section 9.21 hereof in favor of the Agent in
the form of Exhibit O attached hereto and incorporated herein by
reference, each as from time to time amended, supplemented or replaced.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) fiscal years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"NMS" means NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC and its
successors.
"NationsBank" means NationsBank, National Association.
"Net Proceeds" (a) from any Equity Offering means cash
payments received by the Borrower therefrom as and when received, net
of all legal, accounting, banking and underwriting fees and expenses,
commissions, discounts and other issuance expenses incurred in
connection therewith and all taxes required to be paid or accrued as a
consequence of such issuance; and (b) from any Asset Disposition means
cash payments received by the Borrower therefrom (including any cash
payments received pursuant to any note or other debt security received
in connection with any Asset Disposition) as and when received, net of
(i) all legal fees and expenses and other fees and expenses paid to
third parties and incurred in connection therewith, (ii) all taxes
required to be paid or accrued as a consequence of such sale and (iii)
with respect to an Asset Disposition only, amounts applied to repayment
of Indebtedness (other than the Obligations) secured by a Lien on the
asset or property disposed.
"Notes" means, collectively, the Revolving Notes, the Term
Notes and the Swing Line Note.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all
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liabilities of Borrower to any Lender or an affiliate of a Lender
which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders, the Agent or NMS hereunder, under any one
or more of the other Loan Documents or with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement or limited partnership agreement of such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization or certificate
of limited partnership of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, the Revolving Credit Outstandings, the Swing Line
Outstandings and the Term Loan Outstandings on such date.
"Participation" means, with respect to any Lender (other than
the Issuing Bank and each Term Loan B Lender) and a Letter of Credit,
the extension of credit represented by the participation of such Lender
hereunder in the liability of the Issuing Bank in respect of a Swing
Line Loan made or a Letter of Credit issued by the Issuing Bank in
accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates or (ii) has at any time with the last six years
been maintained for the employees of the Borrower or any current or
former ERISA Affiliate.
"Permitted Acquisition" means (a) the HPG Acquisition and (b)
each other Acquisition effected with the consent and approval of the
board of directors or other applicable governing body of the Person
being acquired, and with the duly obtained approval of such
shareholders or other holders of equity interest as such Person may be
required to obtain, so long as (i) immediately prior to and immediately
after the consummation of such Acquisition, no Default or Event of
Default has occurred and is continuing, (ii) with respect to an
Acquisition where the Cost of Acquisition exceeds $5,000,000,
substantially all of the sales and operating profits generated by such
Person
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(or assets) so acquired or invested are derived from a line or lines of
business that are part of the Core Business, (iii) pro forma historical
financial statements as of the end of the most recent fiscal quarter
for the trailing twelve month period giving effect to such Acquisition
are delivered to the Agent not less than five (5) Business Days prior
to the consummation of such Acquisition, together with a certificate of
an Authorized Representative demonstrating compliance with Section
10.22 hereof after giving effect to such Acquisition, (iv) the
aggregate Cost of Acquisition (excluding the value of any capital stock
of the Borrower given as part of the Cost of Acquisition) with respect
to any Acquisitions consummated during any Fiscal Year shall not exceed
$20,000,000; and (v) the aggregate Cost of Acquisition which consists
in whole or in part of the value of any capital stock of the Borrower
(including without limitation when combined with cash, debt or the
assumption of indebtedness for any specific Acquisition) with respect
to any Acquisition consummated after the Closing Date shall not exceed
$10,000,000.
"Permitted Indebtedness" has the meaning given to such term in
Section 10.1 hereof.
"Permitted Liens" has the meaning given to such term in
Section 10.2 hereof.
"Person" means an individual, partnership, corporation, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledged Stock" means (i) all of the capital stock or
partnership interests and related rights and interests owned by the
Borrower, directly or indirectly, of (A) each Domestic Subsidiary and
Domestic Control Subsidiary and (B) Newtech Electronics Industries,
Inc., PX Distributors, Inc., Break Room of Tennessee, Inc. and Anasazi
Partners, (ii) 65% of the outstanding voting stock and related
interests and rights of each Direct Foreign Subsidiary or Direct
Foreign Control Subsidiary (to the extent such amount is directly or
indirectly owned by the Borrower) and (iii) 100% of the capital stock
and related interests and rights directly or indirectly owned by the
Borrower of any Foreign Subsidiary or Foreign Control Subsidiary to the
extent such action would not result in any material adverse tax impact
on the Borrower, in each case now or hereafter pledged by the Borrower
and certain Subsidiaries pursuant to the Stock Pledge Agreement.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due, and (iii) in a principal
amount
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and bear such rate or rates of interest as shall be sufficient to pay
in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the rate of interest per annum established
from time to time by the Agent as its prime rate. The Prime Rate is not
necessarily the best or the lowest rate of interest offered by the
Agent.
"Principal Office" means the office of the Agent at
NationsBank, National Association, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Agency Services,
or such other office and address as the Agent may from time to time
designate.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 3.2 hereof) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
"Related Business Party" means any supplier, vendor or
customer, or any group of individual suppliers, vendors or customers,
whose inability to perform under existing agreements or general
business failure could reasonably be expected to have a Material
Adverse Effect.
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating in excess of 50%
of the aggregate Credit Exposures of all Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit Exposure"
of each Lender shall be equal to the aggregate principal amount of the
Revolving Loans owing to such Lender plus the aggregate unutilized
amounts of such Lender's Revolving Credit Commitment (without regard to
any Swing Line Outstandings) plus the amount of such Lender's
Applicable Commitment Percentage of Letter of Credit Outstandings plus
the amount of such Lender's Applicable Commitment Percentage of the
Term Loan Outstandings; provided that, (i) if any Lender with a
Revolving Credit Commitment shall have failed to pay to the Issuing
Bank its Applicable Commitment Percentage of any drawing under any
Letter of Credit resulting in an outstanding Reimbursement Obligation,
such Lender's Credit Exposure attributable to Letters of Credit and
Reimbursement Obligations shall be deemed to be held by the
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Issuing Bank for purposes of this definition and (ii) if any Lender
with a Revolving Credit Commitment shall have failed to pay to
NationsBank its Applicable Commitment Percentage of any Swing Line
Loan, such Lender's Credit Exposure equal to its Applicable Commitment
Percentage of all Swing Line Outstandings shall be deemed to be held by
NationsBank for purposes of this definition.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other assets which include Eurodollar Rate Loans. The
Eurodollar Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Article III hereof providing for Revolving Loans to the Borrower by the
Lenders in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 11.1 hereof upon the occurrence of an
Event of Default, or (iii) such date as the Borrower may voluntarily
and permanently terminate the Revolving Credit Facility by payment in
full of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Article III.
"Revolving Notes" means the promissory notes of the Borrower
evidencing Revolving Loans executed and delivered to the Lenders
substantially in the form of Exhibit F-4 hereto.
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"Salton/Maxim" means Salton/Maxim Housewares, Inc., a Delaware
corporation.
"Security Agreement" means, collectively (or individually as
the context may indicate), (i) the Security Agreement dated as of June
26, 1998 by the Borrower and the Guarantors to the Agent and (ii) any
additional Security Agreement delivered to the Agent (whether of even
date herewith or delivered after the Closing Date pursuant to Article
VI or Section 9.21 hereof and whether executed individually or jointly
and severally with other Subsidiaries), each in the form of Exhibit H
hereto and each as hereafter amended, supplemented or replaced from
time to time.
"Security Instruments" means, collectively, the Security
Agreement, the Intellectual Property Security Agreement, the Stock
Pledge Agreement, the Mortgage (when and if required hereunder), the
Collateral Assignments of Contract Rights and all other agreements,
instruments and other documents, whether now existing or hereafter in
effect, pursuant to which the Borrower, or any Credit Party, shall
grant or convey to the Agent or the Lenders a Lien in property as
security for all or any portion of the Obligations, as any of them may
be amended, modified or supplemented from time to time.
"Segment" means a portion of a Term Loan (or all thereof) with
respect to which a particular interest rate is (or is proposed to be)
applicable.
"Seller" means The Black & ▇▇▇▇▇▇ Corporation, a Maryland
corporation.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(ii) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(iii) it is then able and expects to be able to pay
its debts as they mature; and
(iv) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"S&P" means Standard & Poor's Ratings Group, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Special Purpose Subsidiary" means a wholly-owned Subsidiary
of the Borrower organized for the sole purpose of accomplishing a Year
End Domestic Receivables Transaction and which engages in no other
business, the proper name of which shall be furnished to the Agent
promptly following its organization.
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"Stated Termination Date" means June 26, 2003.
"Stock Pledge Agreement" means, collectively (or individually
as the context may indicate), (i) that certain Stock Pledge Agreement
dated as of June 26, 1998 between the Borrower, certain Guarantors and
the Agent for the benefit of the Lenders and (ii) any additional Stock
Pledge Agreement delivered to the Agent (whether of even date herewith
or delivered after the Closing Date pursuant to Article VI or Section
9.21 hereof and whether executed individually or jointly and severally
with other Subsidiaries), substantially in the form attached hereto as
Exhibit G hereto, as each such Stock Pledge Agreement may be amended,
supplemented or replaced from time to time.
"Subordinated Notes" means the senior subordinated notes in an
aggregate principal amount of $130,000,000.
"Subsidiary" means (a) any corporation in which more than 50%
of its outstanding voting stock is owned directly or indirectly by the
Borrower and/or by one or more of its Subsidiaries or (b) in the case
of a Person other than a corporation, any Person with respect to which
the Borrower or any Subsidiary, directly or indirectly, is entitled to
more than 50% of the profits of such Person.
"Swap Agreement" means one or more agreements between the
Borrower and any Lender or an Affiliate of a Lender with respect to
Indebtedness evidenced by any or all of the Notes, on terms mutually
acceptable to the Borrower and such Lender or an Affiliate of a Lender,
which agreements create Hedging Obligations.
"Swing Line" means the revolving line of credit established by
NationsBank in favor of the Borrower pursuant to Section 3.13 hereof.
"Swing Line Loans" means loans made by NationsBank to the
Borrower pursuant to Section 3.13 hereof.
"Swing Line Note" means the promissory note of the Borrower
evidencing Swing Line Loans executed and delivered to the NationsBank
substantially in the form of Exhibit F-5 hereto.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Term Loans" means each of the Term Loan A and Term Loan B, as
the case may be.
"Term Loan A" means the loan made pursuant to the Term Loan A
Facility.
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"Term Loan A Commitment" means, with respect to each Lender,
the obligation of a Term Loan A Lender to make available the Term Loan
A to the Borrower in a principal amount equal to such Term Loan A
Lender's Applicable Commitment Percentage of the Total Term Loan A
Commitment, as set forth in Exhibit A hereto.
"Term Loan A Facility" means the facility described in Section
2.1 hereof providing for a Term Loan to the Borrower by the Lenders in
the original principal amount of $76,000,000.
"Term Loan A Lender" means each Lender indicated on Exhibit A
hereto as having a Term Loan A Commitment.
"Term Loan A Maturity Date" means June 26, 2003.
"Term Loan A Termination Date" means (i) the Term Loan A
Maturity Date or (ii) such earlier date of termination of a Term Loan A
Lenders' obligations pursuant to Section 11.1 hereof upon the
occurrence of an Event of Default or (iii) such date as the Borrower
may voluntarily and permanently terminate the applicable Term Loan A
Facility by payment in full of all Obligations incurred in connection
with such Term Loan A.
"Term Loan B" means the loan made pursuant to the Term Loan B
Facility.
"Term Loan B Commitment" means, with respect to each Lender,
the obligation of a Term Loan B Lender to make available the Term Loan
B to the Borrower in a principal amount equal to such Term Loan B
Lender's Applicable Commitment Percentage of the Total Term Loan B
Commitment, as set forth in Exhibit A hereto.
"Term Loan B Facility" means the facility described in Section
2.1 hereof providing for the Term Loan to the Borrower in the original
principal amount of $63,000,000.
"Term Loan B Lender" means each Lender indicated on Exhibit A
hereto as having a Term Loan B Commitment.
"Term Loan B Maturity Date" means June 26, 2004.
"Term Loan B Termination Date" means (i) the Term Loan B
Maturity Date or (ii) such earlier date of termination of a Term Loan B
Lender's obligations pursuant to Section 11.1 hereof upon the
occurrence of an Event of Default or (iii) such date as the Borrower
may voluntarily and permanently terminate the applicable Term Loan B
Facility by payment in full of all Obligations incurred in connection
with such Term Loan B.
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"Term Loan Facilities" means the Term Loan A Facility and the
Term Loan B Facility.
"Term Loan Outstandings" means, as of any date of
determination, the aggregate principal amount of the Term Loans then
outstanding and all interest accrued thereon.
"Term Loan Termination Date" means the date upon which each of
the Term Loan A Termination Date and the Term Loan B Termination shall
have occurred.
"Term Notes" means, collectively, the Term A Notes and the
Term B Notes.
"Term A Notes" means, collectively, the promissory notes of
the Borrower evidencing Term Loan A executed and delivered to the Term
Loan A Lenders as provided in Section 2.7 hereof substantially in the
form of Exhibit F-1 hereto, with appropriate insertions as to amounts,
dates and names of Term Loan A Lenders.
"Term B Notes" means, collectively, the promissory notes of
the Borrower evidencing Term Loan B executed and delivered to the Term
Loan B Lenders as provided in Section 2.7 hereof substantially in the
form of Exhibit F-2 hereto, with appropriate insertions as to amounts,
dates and names of Term Loan B Lenders.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a Lien pursuant to Section 412 of the Code or Section 302
of ERISA; or (viii) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Section 4241
or Section 4245 of ERISA, respectively; or (ix) any event or condition
which results in the termination of a Multiemployer Plan under Section
4041A of ERISA or the institution by the PBGC of proceedings to
terminate a Multiemployer Plan under Section 4042 of ERISA; or (x) any
event or condition with respect to any Employee Benefit Plan which is
regulated by any Foreign Benefit Law that results in such Employee
Benefit Plan's termination or the revocation of the Employee Benefit
Plan's authority to operate under the applicable Foreign Benefit Law.
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"Total Letter of Credit Commitment" means an amount not to
exceed $20,000,000.
"Total Revolving Credit Commitment" means $160,000,000, such
amount as reduced from time to time in accordance with Section 3.7
hereof.
"Total Term Loan A Commitment" means a principal amount equal
to $76,000,000.
"Total Term Loan B Commitment" means a principal amount equal
to $63,000,000.
"Total Term Loan Commitment" means the sum of the Total Term
Loan A Commitment and the Total Term Loan B Commitment.
"Transaction Agreement" means that certain Transaction
Agreement dated as of May 10, 1998, as amended from time to time with
notice to and the consent of the Agent, by and among the Borrower and
the Seller providing for the purchase of HPG by the Borrower.
"Transaction Documents" means the Transaction Agreement and
each other agreement, together with exhibits and attachments thereto,
identified in the definition of "Transaction Documents" contained in
Exhibit A to the Transaction Agreement.
"Type" shall mean any type of Loan bearing interest at a
particular rate (i.e., a Base Rate Loan, a Eurodollar Rate Loan or a
Swing Line Loan).
"Year End Domestic Receivables Transaction" means the transfer
by the Borrower and/or its Domestic Subsidiaries to Windmere Holdings
II, Inc., a Guarantor, ("Holdings") or a Special Purpose Subsidiary on
or about December 31 of any year of Domestic Receivables (as defined in
the Security Agreement entered into by the Borrower or such Domestic
Subsidiary), subject at all times to the existing and continuing Lien
on such property in favor of the Agent for the benefit of the Lenders;
provided that all of the following conditions are satisfied:
(ii) all Domestic Receivables are transferred to
Holdings or the Special Purpose Subsidiary on or about any
December 31 and retransferred to the appropriate transferor
not later than the fifth Business Day following January 1;
(iii) immediately prior to giving effect to any such
transfer, no Default or Event of Default shall have occurred
and be continuing;
(iv) Holdings and the Special Purpose Subsidiary shall
incur no Indebtedness or other liabilities for the payment of
money, other than those in
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favor of the Agent and the Lenders, corporate franchise taxes
and similar unsecured obligations necessarily incurred to
maintain its existence, and the obligation to retransfer
Domestic Receivables as of the fifth Business Day following
each January 1 to the appropriate transferor;
(v) immediately before giving effect to any such
transfer on or about any December 31, Holdings or the Special
Purpose Subsidiary shall not have become liable to any Person,
and no Person shall have asserted any claim against Holdings
or the Special Purpose Subsidiary (including without
limitation the submission of any invoice) for the payment of
any amount or the delivery of any property or interest therein
other than routine invoices for the payment of operating costs
in connection with liabilities expressly permitted under the
immediately preceding clause (iii);
(vi) the Agent for the benefit of the Lenders shall
have a duly perfected first priority security interest in the
Domestic Receivables in which Holdings or the Special Purpose
Subsidiary may acquire any interest at any time, subject to no
adverse claims of creditors of, or purchasers for value from,
Holdings or the Special Purpose Subsidiary;
(vii) the Special Purpose Subsidiary shall have been
created in full compliance with the provisions of Section 9.21
hereof and there shall be then in effect an appropriate
guaranty and an appropriate security agreement executed and
delivered by and effective against the Special Purpose
Subsidiary as contemplated in such Section; and
(viii) the purpose of the Special Purpose Subsidiary
shall be strictly limited, by charter or in such other manner
as shall be acceptable to the Agent, to (A) the acquisition
and retransfer of Domestic Receivables as contemplated in the
preceding clauses of this definition and (B) the incurring of
obligations and the grant of a Lien to the Agent and the
Lenders as required by Section 9.21 hereof, and the operations
and activities of the Special Purpose Subsidiary shall at all
times be strictly limited to those actions necessary to
accomplish such purposes.
"Year 2000 Compliance Plan" means the written plan adopted by
the Borrower outlining the nature and timing of actions to be taken for
the Borrower and its Subsidiaries becoming Year 2000 Compliant.
"Year 2000 Compliant" means all computer applications
(including those affected by information received from its suppliers
and vendors) that are material to the Borrower's or any of its
Subsidiaries' business and operations will on a timely basis be able to
perform properly data-sensitive functions involving all dates on and
after January 1, 2000.
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"Year 2000 Problem" means the risk that computer applications
used by the Borrower and any of its Subsidiaries (including those
affected by information received from its suppliers and vendors) that
are material to the Borrower's or any of its Subsidiaries' business or
operations may be unable to recognize and perform properly
data-sensitive functions involving certain dates on and after January
1, 2000.
I.3. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis; provided, however,
that to the extent any term defined in this Article I refers to
"Subsidiaries" and contains a calculation to be made in accordance with
GAAP, the term "Subsidiaries" shall be deemed to include Control
Subsidiaries.
(b) Each term defined in Article 1 or 9 of the Florida Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code
of another jurisdiction is controlling, in which case such terms shall
have the meaning given in the Uniform Commercial Code of the applicable
jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references herein
to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections,
paragraphs, clauses, annexes, appendices, exhibits and schedules in or
to this Agreement.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
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(h) All dates and times of day specified herein shall refer to
such dates and times at Charlotte, North Carolina.
(i) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(j) Any reference to a Lender in Article II when used herein
with respect to Term Loan A or Term Loan B shall mean those Lenders
with a Term Loan A Commitment or a Term Loan B Commitment,
respectively, and when used in Article III and IV with respect to a
Revolving Loan shall mean those Lenders having a Revolving Credit
Commitment.
(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(l) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
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ARTICLE II
The Term Loans
II.1. Term Loans. Subject to the terms and conditions of this
Agreement, each Lender with a Term Loan A Commitment and/or a Term Loan B
Commitment, as the case may be, severally agrees to make (i) an Advance of the
Term Loan A on the Closing Date in an amount equal to its Applicable Commitment
Percentage of the Total Term Loan A Commitment, and (ii) an Advance of the Term
Loan B on the Closing Date in an amount equal to its Applicable Commitment
Percentage of the Total Term Loan B Commitment, in each case, by wire transfer
to the Agent. Such wire transfer shall be directed to the Agent at the Principal
Office and shall be in the form of immediately available Dollars . The amount so
received by the Agent shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower by delivery of the proceeds thereof
to the Borrower's Account or otherwise as shall be directed by the Authorized
Representative and reasonably acceptable to the Agent. Each Term Loan shall be
available in a single draw in Dollars at Closing. The principal amount of each
Segment of the Term Loans outstanding hereunder from time to time shall bear
interest, at the Borrower's election, at an interest rate per annum equal to the
Base Rate or the applicable Eurodollar Rate; provided, however, that (x) no
Eurodollar Rate Segment shall have an Interest Period that extends beyond the
Term Loan A Maturity Date or the Term Loan B Maturity Date, as the case may be,
(y) each Eurodollar Rate Segment of each Term Loan shall be in the minimum
amount of $5,000,000 and if greater, in an integral multiple of $1,000,000, and
(z) each Eurodollar Rate Segment may be repaid only on the last day of the
Interest Period with respect thereto unless such payment is accompanied by the
additional payment, if any, required by Section 6.5 hereof. No amount of any
Term Loan repaid or prepaid by the Borrower may be reborrowed hereunder, and no
subsequent Advances of Term Loans shall be made by any Lender after the initial
Advance.
II.2. Payment of Principal. (a) The principal amount of Term Loan A
shall be repaid by the Borrower on the dates and in the amounts (subject to the
provisions of Section 2.5 and 2.6) hereof set forth below:
Date Amount
---- ------
March 31, 1999 $2,000,000
June 30, 1999 $2,000,000
September 30, 1999 $2,000,000
December 31, 1999 $2,000,000
March 31, 2000 $2,000,000
June 30, 2000 $2,000,000
September 30, 2000 $4,500,000
December 31, 2000 $4,500,000
March 31, 2001 $4,500,000
June 30, 2001 $4,500,000
September 30, 2001 $5,000,000
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December 31, 2001 $5,000,000
March 31, 2002 $5,000,000
June 30, 2002 $5,000,000
September 30, 2002 $6,500,000
December 31, 2002 $6,500,000
March 31, 2003 $6,500,000
June 26, 2003 All remaining
principal outstanding
on Term Loan A
(b) The principal amount of Term Loan B shall be repaid by the Borrower
in five consecutive annual installments of $630,000 on June 30 of each year
commencing with June 30, 1999 (subject to Sections 2.5 and 2.6 hereof) with a
final sixth payment due on June 26, 2004 in the amount of all remaining
principal outstanding on Term Loan B.
(d) Notwithstanding the foregoing, the entire amount of Term Loan
Outstandings shall be due and payable by the Borrower in full on the Term Loan A
Termination Date or Term Loan B Termination Date, as applicable.
II.3. Payment of Interest. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Segment of each Term Loan
commencing on the date of determination of the interest rate applicable to such
Segment until such Segment shall be paid at the applicable Base Rate or
Eurodollar Rate, as the case may be, as designated by the Borrower in the
applicable Interest Rate Selection Notice or as otherwise provided hereunder.
Interest relating to each Segment shall be computed on the basis of a year of
360 days and calculated for actual days elapsed. Interest on each Segment shall
be paid on the earlier of (a) in the case of any Base Rate Segment, quarterly in
arrears on the last Business Day of each March, June, September and December,
commencing on September 30, 1998, until the applicable Term Loan A Maturity Date
or Term Loan B Maturity Date, as applicable, or, if earlier, the applicable Term
Loan A Termination Date or Term Loan B Termination Date, as applicable, on which
date the entire principal amount of and all accrued interest on the Term Loans
shall be paid in full, (b) in the case of any Eurodollar Rate Segment, on the
last day of the applicable Interest Period for such Segment and if such Interest
Period extends for more than three (3) months, at intervals of three (3) months
after the first day of such Interest Period, and (c) upon payment in full of
such Term Loan; provided, however, that if any Event of Default shall have
occurred and be continuing, all amounts outstanding hereunder shall bear
interest at the Default Rate until such Event of Default is waived.
II.4. Manner of Payment.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
to the Lenders with respect to the Term Loans, shall be made to the
Agent at the Principal Office for the account of each Lender in Dollars
in immediately available funds on or before 3:00 P.M. on the date such
payment is due. Without prejudice to any of the other obligations set
forth herein by the
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Borrower, the Agent shall, upon the request of the Borrower, debit the
amount of such payment from any one or more ordinary deposit accounts
of the Borrower with the Agent. The Borrower shall attempt to give the
Agent telefacsimile notice of any intended payment of principal or
interest prior to 12:00 Noon on the date of such payment. Payments
received by the Agent within the time period specified above will be
delivered to the Lenders on the same Business Day, or if received
later, the next Business Day.
(b) The Agent shall deem any payment made by or on behalf of
the Borrower that is not made both in Dollars in immediately available
funds and prior to 3:00 P.M. on the date such payment is to be made to
be a non-conforming payment. Any such non-conforming payment shall not
be deemed to be received by the Agent until the later of (i) the time
such funds become available funds and (ii) the next Business Day. Any
non-conforming payment may, at the option of the Agent, constitute or
become a Default or Event of Default. Interest shall continue to accrue
on any principal as to which a non-conforming payment is made until the
later of (i) the date such funds become available funds or (ii) the
next Business Day at the Default Rate, from the date such amount was
due and payable.
(c) In the event that any payment hereunder or under the Term
Notes becomes due and payable on a day other than a Business Day, then
such due date shall be extended to the next succeeding Business Day
unless provided otherwise under the definition of "Interest Period";
provided, however, that interest shall continue to accrue during the
period of any such extension; and provided further, however, that in no
event shall any such due date be extended beyond the Term Loan A
Termination Date or Term Loan B Termination Date, as the case may be.
II.5. Optional Prepayments. The Borrower may prepay the Term Loans, in
whole or in part from time to time on any Business Day, without penalty or
premium, upon not less than five (5) Business Days' prior written notice
(effective upon receipt) to the Agent, which notice shall be irrevocable. Any
partial prepayment of the Term Loans shall be applied pro rata among Term Loan A
Outstanding and Term Loan B Outstandings to principal installments equally
across all maturities thereof for the pro rata benefit of the Lenders. Any
prepayment, whether a Base Rate Segment or a Eurodollar Rate Segment, shall be
made at a prepayment price equal to (i) the amount of principal to be prepaid,
plus (ii) all accrued and unpaid interest on the amount so prepaid, to the date
of prepayment. All prepayments under this Section 2.5 hereof shall be made in
the minimum principal amount of $1,000,000 or any integral multiple of
$1,000,000 in excess thereof (or in the entire remaining principal balance of
the Term Loans). No such prepayment shall result in the payment of any
Eurodollar Rate Segment other than on the last day of the Interest Period of
such Segment unless such prepayment is accompanied by amounts due, if any, under
Section 6.5 hereof. No payment under this Section 2.5 hereof shall reduce or
excuse any payment required under Section 2.6 hereof.
II.6. Mandatory Prepayments. In addition to the required payments of
principal of the Term Loans set forth in Section 2.2 hereof and any optional
payments of principal of the Loans
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effected under Section 2.5 hereof, the Borrower shall make the following
required prepayments of the Term Loan Facilities and, to the extent indicated
below, the Revolving Credit Facility, each such payment to be made to the Agent
for the benefit of the Lenders within the time period specified below:
(a) Equity Offerings. The Borrower shall make, or shall cause
each applicable Subsidiary to make, a prepayment of the Loans from the
Net Proceeds of any Equity Offering in an amount equal to (i) prior to
payment in full of all Term Loan Outstandings, seventy-five percent
(75%) of such Net Proceeds and (ii) after payment in full of all Term
Loan Outstandings, fifty percent (50%) of such Net Proceeds. Each such
prepayment shall be made within fifteen (15) Business Days of receipt
of such Net Proceeds and upon not less than three (3) Business' Days
written notice to the Agent, and shall include within one (1) Business
Day of repayment a certificate of an Authorized Representative setting
forth in reasonable detail the calculations utilized in computing the
amount of the Net Proceeds.
(b) Debt Offerings. The Borrower shall make, or shall cause
each applicable Subsidiary to make, a prepayment of the Loans from the
Net Proceeds of any Debt Offering in an amount equal to one hundred
percent (100%) of such Net Proceeds. Each such prepayment shall be made
within fifteen (15) Business Days of receipt of such Net Proceeds and
upon not less than three (3) Business' Days written notice to the
Agent, and shall include within one (1) Business Day of repayment a
certificate of an Authorized Representative setting forth in reasonable
detail the calculations utilized in computing the amount of the Net
Proceeds.
(c) Asset Dispositions. The Borrower shall make, or shall
cause each applicable Subsidiary to make, a prepayment of the Loans
from the Net Proceeds of any Asset Disposition in an amount equal to
ninety percent (90%) of such Net Proceeds. Each such prepayment shall
be made within fifteen (15) Business Days of receipt of such Net
Proceeds and upon not less than three (3) Business' Days written notice
to the Agent, which notice shall include a certificate of an Authorized
Representative setting forth in reasonable detail the calculations
utilized in computing the amount of the Net Proceeds.
(d) Excess Cash Flow. Commencing with the Fiscal Year ending
December 31, 1999, the Borrower shall make an annual prepayment of the
Loans equal to fifty percent (50%) of Consolidated Excess Cash Flow for
such Fiscal Year and each Fiscal Year thereafter. Each such prepayment
shall be made within five (5) Business Days of delivery to the Agent of
the certificate described in Section 9.1(a)(i) hereof.
(e) Insurance or Condemnation Proceeds. The Borrower shall
make, or shall cause each applicable Subsidiary to make, a prepayment
of the Loans in an amount equal to one hundred percent (100%) of the
proceeds of any Condemnation Award or Insurance Award; provided,
however, that to the extent no Default or Event of Default has occurred
and is continuing, no such prepayment shall be required with respect to
proceeds which
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are reinvested by the Borrower in repair of any damaged property or in
replacement property of approximately equivalent or greater value and
utility as the property subject to such taking or loss withing 60 days
following receipt of such proceeds. Each such prepayment shall be made
(A) within fifteen (15) Business Days of receipt of such proceeds and
upon not less than three (3) Business' Days written notice to the Agent
unless the Borrower shall have delivered to the Agent a certificate
setting forth the amount of such proceeds, confirming the intent of the
Borrower to reinvest such proceeds as provided above and containing a
detailed description of the plan of reinvestment with respect to such
proceeds or (B) upon expiration of 60 days following receipt of such
proceeds if a certificate referred to in clause (A) above has been
received by the Agent but such reinvestment has not been consummated
within the 60 day reinvestment period referred to above.
All mandatory prepayments made pursuant to this Section 2.6 shall be
applied first to repay the Term Loans on a pro rata basis (that is, based on the
ratio each outstanding Term Loan bears to Term Loan Outstandings) until the Term
Loan Outstandings have been paid in full and then to reduce Revolving Credit
Outstandings, if any. Each mandatory prepayment in an amount less than the Term
Loan Outstandings shall be applied pro rata to each remaining installment of
Term Loan A and Term Loan B (or if no Term Loan A Outstandings then exist, pro
rata to each remaining installment of Term Loan B); provided, however, that any
holder of Term Loan B shall have the right by the giving of at least one day's
prior written notice to the Agent to refuse prepayment of all or a portion of
the Term Loan B held by it if, after giving effect to such partial prepayment, a
portion of Term Loan A will remain outstanding, and any prepayment so refused
shall be applied to prepay any remaining portion of Term Loan A. If the amount
of Term Loan B as to which prepayment is refused is in excess of the remaining
Term Loan A Outstandings, then the Agent shall pro rate the amount of Term Loan
B which can be paid among holders of Term Loan A based upon the proportion that
the principal amount of Term Loan A held by each Lender bears to the Total Term
Loan Outstandings. The holders of Term Loan B shall have no right to refuse
prepayment of all or any portion of Term Loan B to the extent that any amount so
refused exceeds the amount of Term Loan A Outstandings. Any prepayment of an
Eurodollar Rate Loan pursuant to this Section 2.6 hereof other than on the last
day of an Interest Period shall be accompanied by the additional payment, if
any, required by Section 6.5 hereof.
II.7. Term Notes. The portion of each of the Term Loan A and the Term
Loan B made by each Lender shall be evidenced by a Term A Note and the Term B
Note, respectively, payable to the order of such Lender in the respective
amounts of its Term Loan A Commitment and Term Loan B Commitment, which Term
Notes shall be dated the Closing Date or a later date pursuant to an Assignment
and Acceptance and shall be duly completed, executed and delivered by the
Borrower.
II.8. Intereest Periods. Each Term Loan shall be, at the option of the
Borrower specified in an Interest Rate Selection Notice, comprised of either
Eurodollar Rate Segments or Base Rate Segments. Eurodollar Rate Segments and
Base Rate Segments may be outstanding at the same time, provided, however, there
shall not be outstanding at any one time Eurodollar Rate Loans
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(including Revolving Loans) having more than twelve (12) different Interest
Periods. If the Agent does not receive an Interest Rate Selection Notice giving
notice of election of the duration of an Interest Period or of Conversion of any
Segment to or Continuation of a Segment as a Eurodollar Rate Segment by the time
prescribed by Section 2.9 hereof, the Borrower shall be deemed to have elected
to Convert such Segment to (or Continue such Segment as) a Base Rate Segment
until the Borrower notifies the Agent in accordance with Section 2.9 hereof.
II.9. Conversions and Elections of Subsequent Interest Periods. Subject
to the limitations set forth below and in Article VI, the Borrower may:
(a) upon delivery (effective upon receipt) of a properly
completed Interest Rate Selection Notice to the Agent on or before
11:00 A.M. on any Business Day, Convert any Eurodollar Rate Segment to
a Base Rate Segment on the last day of the Interest Period for such
Eurodollar Rate Segment; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery (effective upon receipt) of a
properly completed Interest Rate Selection Notice to the Agent on or
before 11:00 A.M. three (3) Business Days' prior to the date of such
Conversion:
(i) elect a subsequent Interest Period for any
Eurodollar Rate Segment to begin on the last day of the then
current Interest Period for such Eurodollar Rate Segment; and
(ii) Convert any Base Rate Segment to a Eurodollar
Rate Segment on any Business Day.
Each Conversion pursuant to this Section 2.9 hereof shall be subject to
the limitations on Eurodollar Rate Loans set forth in the definition of
"Interest Period" herein and in Sections 2.1, 2.8 and Article VI hereof. The
Agent shall give written notice to each Lender of such notice of Conversion
prior to 1:00 P.M. on the day such notice of election or Conversion is received.
All such Continuations or Conversions of Term Loans shall be effected pro rata
based on the Applicable Commitment Percentages of the Lenders with respect to
such Term Loan.
II.10. Pro Rata Payments. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on each Term Loan shall be
made to the Agent for the account of the Lenders pro rata based on their
Applicable Commitment Percentages of such Term Loan, (b) all payments to be made
by the Borrower for the account of each of the Lenders on account of principal,
interest and fees, shall be made without diminution, set-off, recoupment or
counterclaim, and (c) the Agent will distribute to the Lenders in immediately
available funds payments received in fully collected, immediately available
funds from the Borrower on the same Business Day received if such payment is
received from the Borrower within the time limits prescribed herein, or if
later, the next Business Day.
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II.11. Use of Proceeds. The proceeds of the Term Loans made pursuant to
the Term Loan Facilities hereunder shall be used by the Borrower (a) to fund a
portion of the purchase price paid in connection with the HPG Acquisition, (b)
to refinance certain existing Indebtedness of the Borrower, (c) to pay certain
costs associated with the closing of the Asheboro Facility, which costs paid by
the Borrower shall not exceed $10,000,000, and (d) to pay certain fees and
expenses incurred in connection with the HPG Acquisition, which fees and
expenses shall not exceed $21,000,000.
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ARTICLE III
The Revolving Credit Facility
III.1. Revolving Loans.
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrower under the Revolving Credit Facility from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata
basis as to the total borrowing requested by the Borrower on any day
determined by such Lender's Applicable Commitment Percentage of the
Total Revolving Credit Commitment up to but not exceeding the Revolving
Credit Commitment of such Lender, provided, however, that the Lenders
will not be required and shall have no obligation to make any such
Advance (i) so long as a Default or an Event of Default has occurred
and is continuing or (ii) if the Agent has accelerated the maturity of
any of the Revolving Notes as a result of an Event of Default; provided
further, however, that immediately after giving effect to each such
Advance, the principal amount of Revolving Credit Outstandings plus
Swing Line Outstandings plus Letter of Credit Outstandings shall not
exceed the lesser of (x) the Total Revolving Credit Commitment or (y)
the Borrowing Base. Within such limits, the Borrower may borrow, repay
and reborrow under the Revolving Credit Facility on a Business Day from
the Closing Date until, but (as to borrowings and reborrowings) not
including, the Revolving Credit Termination Date; provided, however,
that (y) no Revolving Loan that is a Eurodollar Rate Loan shall be made
which has an Interest Period that extends beyond the Stated Termination
Date and (z) each Revolving Loan that is a Eurodollar Rate Loan may be
repaid only on the last day of the Interest Period with respect thereto
unless such payment is accompanied by the additional payment, if any,
required by Section 6.5 hereof.
(b) Amounts. Except as otherwise permitted by the Lenders from
time to time, the aggregate unpaid principal amount of the Revolving
Credit Outstandings plus Swing Line Outstandings plus Letter of Credit
Outstandings shall not exceed at any time the lesser of (i) the Total
Revolving Credit Commitment or (ii) the Borrowing Base and, in the
event there shall be outstanding any such excess, the Borrower shall
immediately make such payments and prepayments as shall be necessary to
comply with this restriction. Each Revolving Loan hereunder, other than
Base Rate Refunding Loans, and each Conversion under Section 3.8,
hereof shall be in an amount of at least $5,000,000, and, if greater
than $5,000,000, an integral multiple of $1,000,000.
(c) Advances.
(i) An Authorized Representative shall give the Agent
(1) at least three (3) Business Days' irrevocable written
notice by telefacsimile transmission of a Borrowing Notice or
Interest Rate Selection Notice (as applicable) with
appropriate insertions, effective upon receipt, of each
Revolving Loan that is a
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Eurodollar Rate Loan (whether representing an additional
borrowing hereunder or the conversion of a borrowing hereunder
from Base Rate Loans to Eurodollar Rate Loans) prior to 10:30
A.M. and (2) irrevocable written notice by telefacsimile
transmission of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions, effective
upon receipt, of each Revolving Loan (other than Base Rate
Refunding Loans to the extent the same are effected without
notice pursuant to Section 3.1(c)(iv)) hereof that is a Base
Rate Loan (whether representing an additional borrowing
hereunder or the Conversion of borrowing hereunder from
Eurodollar Rate Loans to Base Rate Loans) prior to 10:30 A.M.
on the day of such proposed Loan. Each such notice shall
specify the amount of the borrowing, the type of Revolving
Loan (Base Rate or Eurodollar Rate), the date of borrowing
and, if a Eurodollar Rate Loan, the Interest Period to be used
in the computation of interest. Notice of receipt of such
Borrowing Notice or Interest Rate Selection Notice, as the
case may be, together with the amount of each Lender's portion
of an Advance requested thereunder, shall be provided by the
Agent to each Lender by telefacsimile transmission with
reasonable promptness, but (provided the Agent shall have
received such notice by 10:30 A.M.) not later than 1:00 P.M.
on the same day as the Agent's receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified
for each borrowing under this Section 3.1 hereof, each Lender
shall, pursuant to the terms and subject to the conditions of
this Agreement, make the amount of the Advance or Advances to
be made by it on such day available by wire transfer to the
Agent in the amount of its pro rata share, determined
according to such Lender's Applicable Commitment Percentage of
the Revolving Loan or Revolving Loans to be made on such day.
Such wire transfer shall be directed to the Agent at the
Principal Office and shall be in the form of Dollars
constituting immediately available funds. The amount so
received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the
Borrower by delivery of the proceeds thereof to the Borrower's
Account or otherwise as shall be directed in the applicable
Borrowing Notice by the Authorized Representative and
reasonably acceptable to the Agent.
(iii) The Borrower shall have the option to elect the
duration of the initial and any subsequent Interest Periods
and to Convert the Revolving Loans in accordance with Section
3.8 hereof. Eurodollar Rate Loans and Base Rate Loans may be
outstanding at the same time, provided, however, there shall
not be outstanding at any one time Eurodollar Rate Loans
(including Eurodollar Rate Segments) having more than twelve
(12) different Interest Periods. If the Agent does not receive
a Borrowing Notice or an Interest Rate Selection Notice giving
notice of election of the duration of an Interest Period or of
Conversion of any Loan to or Continuation of a Loan as a
Eurodollar Rate Loan by the time prescribed by Section 3.1(c)
or 3.8 hereof, the Borrower shall be deemed to have
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elected to Convert such Loan to (or Continue such Loan as) a
Base Rate Loan until the Borrower notifies the Agent in
accordance with Section 3.8 hereof.
(iv) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit, such drawing is honored by
the Issuing Bank prior to the Stated Termination Date, and the
Borrower shall not immediately fully reimburse the Issuing
Bank in respect of such drawing, (A) provided that the
conditions to making a Revolving Loan as herein provided shall
then be satisfied, the Reimbursement Obligation arising from
such drawing shall be paid to the Issuing Bank by the Agent
without the requirement of notice to or from the Borrower from
immediately available funds which shall be advanced as a Base
Rate Refunding Loan by each Lender under the Revolving Credit
Facility in an amount equal to such Lender's Applicable
Commitment Percentage of such Reimbursement Obligation, and
(B) if the conditions to making a Revolving Loan as herein
provided shall not then be satisfied, each of the Lenders
shall fund by payment to the Agent (for the benefit of the
Issuing Bank) in immediately available funds the purchase from
the Issuing Bank of their respective Participations in the
related Reimbursement Obligation based on their respective
Applicable Commitment Percentages of the Total Letter of
Credit Commitment. If a drawing is presented under any Letter
of Credit in accordance with the terms thereof and the
Borrower shall not immediately reimburse the Issuing Bank in
respect thereof, then notice of such drawing or payment shall
be provided promptly by the Issuing Bank to the Agent and the
Agent shall provide notice to each Lender by telephone or
telefacsimile transmission. If notice to the Lenders of a
drawing under any Letter of Credit is given by the Agent at or
before 12:00 noon on any Business Day, each Lender shall,
pursuant to the conditions specified in this Section
3.1(c)(iv), either make a Base Rate Refunding Loan or fund the
purchase of its Participation in the amount of such Lender's
Applicable Commitment Percentage of such drawing or payment
and shall pay such amount to the Agent for the account of the
Issuing Bank at the Principal Office in Dollars and in
immediately available funds before 3:00 P.M. on the same
Business Day. If notice to the Lenders of a drawing under a
Letter of Credit is given by the Agent after 12:00 noon on any
Business Day, each Lender shall, pursuant to the conditions
specified in this Section 3.1(c)(iv) hereof, either make a
Base Rate Refunding Loan or fund the purchase of its
Participation in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and shall pay
such amount to the Agent for the account of the Issuing Bank
at the Principal Office in Dollars and in immediately
available funds before 12:00 noon on the next following
Business Day. Any such Base Rate Refunding Loan shall be
advanced as, and shall continue as, a Base Rate Loan unless
and until the Borrower Converts such Base Rate Loan in
accordance with the terms of Section 3.8 hereof.
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III.2. Payment of Interest.
(a) The Borrower shall pay interest to the Agent for the
account of each Lender on the outstanding and unpaid principal amount
of each Revolving Loan made by such Lender for the period commencing on
the date of such Revolving Loan until such Revolving Loan shall be
paid, continued or converted, as the case may be, at the then
applicable Base Rate for Base Rate Loans or applicable Eurodollar Rate
for Eurodollar Rate Loans, as designated by the Authorized
Representative pursuant to Section 3.1 hereof; provided, however, that
if any Event of Default shall have occurred and be continuing, all
amounts outstanding hereunder shall bear interest thereafter at the
Default Rate until such Event of Default is waived.
(b) Interest on each Revolving Loan shall be computed on the
basis of a year of 360 days and calculated in each case for the actual
number of days elapsed. Interest on each Revolving Loan shall be paid
(i) quarterly in arrears on the last Business Day of each September,
December, March and June, commencing September 30, 1998 for each Base
Rate Loan, (ii) on the last day of the applicable Interest Period for
each Eurodollar Rate Loan and, if such Interest Period extends for more
than three (3) months, at intervals of three (3) months after the first
day of such Interest Period, and (iii) upon payment in full of the
principal amount of such Revolving Loan.
III.3. Payment of Principal. The principal amount of each Revolving
Loan shall be due and payable to the Agent for the benefit of each Lender in
full on the Revolving Credit Termination Date, or earlier as specifically
provided herein. The principal amount of any Base Rate Loan may be prepaid in
whole or in part at any time. The principal amount of any Eurodollar Rate Loan
may be prepaid only at the end of the applicable Interest Period unless the
Borrower shall pay to the Agent for the account of the Lenders the additional
amount, if any, required under Section 6.5 hereof. All prepayments of Revolving
Loans made by the Borrower shall be in the amount of $5,000,000 or such greater
amount which is an integral multiple of $1,000,000, or the amount equal to all
Revolving Credit Outstandings, or such other amount as necessary to comply with
Section 3.1(b) or Section 3.7 hereof.
III.4. Manner of Payment.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
to the Lenders with respect to the Revolving Loans, shall be made to
the Agent at the Principal Office for the account of each Lender in
Dollars in immediately available funds on or before 3:00 P.M. on the
date such payment is due. Without prejudice to any of the other
obligations set forth herein by the Borrower, the Agent shall, upon the
request of the Borrower, debit the amount of such payment from any one
or more ordinary deposit accounts of the Borrower with the Agent. The
Borrower shall attempt to give the Agent telefacsimile notice of any
intended payment of principal or interest prior to 12:00 Noon on the
date of such payment. Payments received by the Agent within the time
period specified above will be delivered to the Lenders on the same
Business Day, or if received later, the next Business Day.
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(b) The Agent shall deem any payment made by or on behalf of
the Borrower hereunder that is not made both in Dollars and in
immediately available funds and prior to 12:30 P.M. to be a
non-conforming payment. Any such payment shall not be deemed to be
received by the Agent until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming
payment may, at the election, of the Agent constitute or become a
Default or Event of Default. Interest shall continue to accrue on any
principal as to which a non-conforming payment is made until the later
of (x) the date such funds become available funds or (y) the next
Business Day at the Default Rate from the date such amount was due and
payable.
(c) In the event that any payment hereunder or under the
Revolving Notes becomes due and payable on a day other than a Business
Day, then such due date shall be extended to the next succeeding
Business Day unless provided otherwise under clause (ii) of the
definition of "Interest Period"; provided that interest shall continue
to accrue during the period of any such extension and provided further,
that in no event shall any such due date be extended beyond the
Revolving Credit Termination Date.
III.5. Revolving Notes and Swing Line Notes.
(a) Revolving Loans made by each Lender shall be evidenced by
the Revolving Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the
Revolving Credit Commitment, which Revolving Note shall be dated the
Closing Date or a later date pursuant to an Assignment and Acceptance
and shall be duly completed, executed and delivered by the Borrower.
(b) Swing Line Loans made by NationsBank shall be evidenced
by, and be repayable with interest in accordance with the terms of, the
Swing Line Note dated the Closing Date and duly executed and delivered
by the Borrower.
III.6. Pro Rata Payments. Except as otherwise provided herein, (a) each
payment on account of the principal of and interest on the Revolving Loans and
the fees described in Section 3.10 hereof shall be made to the Agent for the
account of the Lenders pro rata based on their Applicable Commitment
Percentages, (b) all payments to be made by the Borrower for the account of each
of the Lenders on account of principal, interest and fees, shall be made without
diminution, setoff, recoupment or counterclaim, and (c) the Agent will promptly
distribute to the Lenders in immediately available funds payments received in
fully collected, immediately available funds from the Borrower.
III.7. Optional Commitment Reductions. The Borrower shall, by notice
from an Authorized Representative, have the right from time to time but not more
frequently than once each calendar month, upon not less than three (3) Business
Days' written notice to the Agent, effective upon receipt, to permanently reduce
the Total Revolving Credit Commitment. The Agent shall give each Lender, within
one (1) Business Day of receipt of such notice,
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telefacsimile notice, or telephonic notice (confirmed in writing), of such
reduction. Each such reduction shall be in the aggregate amount of $1,000,000 or
such greater amount which is in an integral multiple of $1,000,000, or the
entire remaining Total Revolving Credit Commitment, and shall permanently reduce
the Total Revolving Credit Commitment. Each reduction of the Total Revolving
Credit Commitment shall be accompanied by payment of the Revolving Loans to the
extent that the principal amount of Revolving Credit Outstandings plus Swing
Line Outstandings plus Letter of Credit Outstandings exceeds the lesser of (i)
the Total Revolving Credit Commitment or (ii) the Borrowing Base, after giving
effect to such reduction, together with accrued and unpaid interest on the
amounts prepaid. No such reduction shall result in the payment of any Eurodollar
Rate Loan other than on the last day of the Interest Period of such Eurodollar
Rate Loan unless such prepayment is accompanied by amounts due, if any, under
Section 6.5 hereof.
III.8. Conversions and Elections of Subsequent Interest Periods.
Subject to the limitations set forth below and in Article VI, the Borrower may:
(a) upon delivery, effective upon receipt, of a properly
completed Interest Rate Selection Notice to the Agent on or before
10:30 A.M. on any Business Day, Convert all or a part of Eurodollar
Rate Loans to Base Rate Loans on the last day of the Interest Period
for such Eurodollar Rate Loans; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing upon delivery, effective upon receipt, of a
properly completed Interest Rate Selection Notice to the Agent on or
before 10:30 A.M. three (3) Business Days' prior to the date of such
election or Conversion:
(i) elect a subsequent Interest Period for all or a
portion of Eurodollar Rate Loans to begin on the last day of
the then current Interest Period for such Eurodollar Rate
Loans; and
(ii) Convert Base Rate Loans to Eurodollar Rate Loans
on any Business Day.
Each election and Conversion pursuant to this Section 3.8 hereof shall
be subject to the limitations on Eurodollar Rate Loans set forth in the
definition of "Interest Period" herein and in Sections 3.1, 3.3 and Article VI
hereof. The Agent shall give written notice to each Lender of such notice of
election or Conversion prior to 3:00 P.M. on the day such notice of election or
Conversion is received. All such Continuations or Conversions of Loans shall be
effected pro rata based on the Applicable Commitment Percentages of the Lenders.
III.9. Increase and Decrease in Amounts. The amount of the Total
Revolving Credit Commitment which shall be available to the Borrower as Advances
shall be reduced by the aggregate amount of Revolving Credit Outstandings,
Letters of Credit Outstandings and Swing Line Outstandings.
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III.10. Unused Fee. For the period beginning on the Closing Date and
ending on the Revolving Credit Termination Date, the Borrower agrees to pay to
the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, an unused fee equal to the product of (a) the average
daily amount by which the Total Revolving Credit Commitment exceeds the sum of
(i) Revolving Credit Outstandings (without giving effect to Swing Line
Outstandings) plus (ii) Letter of Credit Outstandings multiplied by (b) .50% per
annum. Such fees shall be due in arrears on the last Business Day of each
September, December, March and June commencing September 30, 1998 to and on the
Revolving Credit Termination Date. Notwithstanding the foregoing, so long as any
Lender fails to make available any portion of its Revolving Credit Commitment
when requested, such Lender shall not be entitled to receive payment of its pro
rata share of such fee until such Lender shall make available such portion. Such
fee shall be calculated on the basis of a year of 360 days for the actual number
of days elapsed.
III.11. Deficiency Advances; Failure to Purchase Participations. No
Lender shall be responsible for any default of any other Lender in respect to
such other Lender's obligation to make any Revolving Loan hereunder or fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment of any Lender hereunder be increased as a result of such default of
any other Lender. Without limiting the generality of the foregoing, in the event
any Lender shall fail to advance funds to the Borrower as herein provided, the
Agent may in its discretion, but shall not be obligated to, advance under the
applicable Revolving Note in its favor as a Lender all or any portion of such
amount or amounts (each, a "deficiency advance") and shall thereafter be
entitled to payments of principal of and interest on such deficiency advance in
the same manner and at the same interest rate or rates to which such other
Lender would have been entitled had it made such Advance under its Revolving
Note; provided that, (i) such defaulting Lender shall not be entitled to receive
payments of principal, interest or fees with respect to such deficiency advance
until such deficiency advance shall be paid by such Lender and (ii) upon payment
to the Agent from such other Lender of the entire outstanding amount of each
such deficiency advance, together with accrued and unpaid interest thereon, from
the most recent date or dates interest was paid to the Agent by the Borrower on
each Revolving Loan comprising the deficiency advance at the interest rate per
annum for overnight borrowing by the Agent from the Federal Reserve Bank, then
such payment shall be credited against the applicable Revolving Note of the
Agent in full payment of such deficiency advance and the Borrower shall be
deemed to have borrowed the amount of such deficiency advance from such other
Lender as of the most recent date or dates, as the case may be, upon which any
payments of interest were made by such Borrower thereon. In the event any Lender
shall fail to fund its purchase of a Participation after notice from the Issuing
Bank or NationsBank, as the Swing Line Lender, as applicable, such Lender shall
pay to the Issuing Bank or NationsBank, as the Swing Line Lender, as applicable,
interest on the amount so due from the date of such notice at the interest rate
per annum for overnight borrowing by the Agent from the Federal Reserve Bank to
the date such purchase price is received by the Issuing Bank or NationsBank, as
the Swing Line Lender, as applicable.
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III.12. Use of Proceeds. The proceeds of the Loans made pursuant to the
Revolving Credit Facility shall be used by the Borrower (a) to fund a portion of
the fees and expenses incurred in connection with the HPG Acquisition, which
fees and expenses shall not exceed $21,000,000, (b) for general working capital
needs and (c) for other corporate purposes, including capital expenditures and
Permitted Acquisitions.
III.13. Swing Line. Notwithstanding any other provision of this
Agreement to the contrary, in order to administer the Revolving Credit Facility
in an efficient manner and to minimize the transfer of funds between the Agent
and the Lenders, NationsBank shall make available Swing Line Loans to the
Borrower prior to the Revolving Credit Termination Date. NationsBank shall not
make any Swing Line Loan pursuant hereto if to the actual knowledge of
NationsBank (i) the Borrower is not in compliance with all the conditions to the
making of Revolving Loans set forth in this Agreement, (ii) if after giving
effect to such Swing Line Loan, the Swing Line Outstandings exceed $10,000,000,
or (iii) if after giving effect to such Swing Line Loan, the sum of the Swing
Line Outstandings, Revolving Credit Outstandings and Letter of Credit
Outstandings exceeds the lesser of (x) the Total Revolving Credit Commitment or
(y) the Borrowing Base. Swing Line Loans shall bear interest at the Base Rate.
The Company may borrow, repay and reborrow under this Section 3.13 hereof.
Unless notified to the contrary by NationsBank, borrowings under the Swing Line
shall be made in the minimum amount of $500,000 or, if greater, in amounts which
are integral multiples of $100,000 or in the amount necessary to effect a Base
Rate Refunding Loan, upon written request by telefacsimile transmission,
effective upon receipt, by an Authorized Representative of the Borrower made to
NationsBank not later than 12:30 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the borrowing
and the date of borrowing, and shall be in the form of Exhibit D-2 hereto.
Unless notified to the contrary by NationsBank, each repayment of a Swing Line
Loan shall be in an amount which is an integral multiple of $100,000 or the
aggregate amount of all Swing Line Outstandings. If the Borrower instructs
NationsBank to debit any demand deposit account of the Borrower in the amount of
any payment with respect to a Swing Line Loan, or NationsBank otherwise receives
repayment, after 12:30 P.M. on a Business Day, such payment shall be deemed
received on the next Business Day.
(a) The interest payable on Swing Line Loans is solely for the
account of NationsBank and each Lender who has purchased a
Participation in such Swing Line Loans, and all accrued and unpaid
interest on Swing Line Loans shall be payable on the dates and in the
manner provided in Sections 3.2(b) and 3.4 hereof with respect to
interest on Base Rate Loans. The Swing Line Outstandings shall be
evidenced by the Swing Line Note delivered to NationsBank pursuant to
Section 3.5(b) hereof.
(b) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from NationsBank a Participation therein in an
amount equal to that Lender's Applicable Commitment Percentage of such
Swing Line Loan. Upon demand made by NationsBank, each Lender shall,
according to its Applicable Commitment Percentage of such Swing Line
Loan, promptly provide to NationsBank its purchase price therefor in an
amount equal to its Participation therein. Any Advance made by a Lender
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pursuant to demand of NationsBank of the purchase price of its
Participation shall be deemed (i) provided that the conditions to
making Revolving Loans shall be satisfied, a Base Rate Refunding Loan
under Section 3.1 hereof until the Borrower Converts such Base Rate
Loan in accordance with the terms of Section 3.8 hereof, and (ii) in
all other cases, the funding by each Lender of the purchase price of
its Participation in such Swing Line Loan. The obligation of each
Lender to so provide its purchase price to NationsBank shall be
absolute and unconditional and shall not be affected by the occurrence
of an Event of Default or any other occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 3.1 hereof in an amount sufficient to
repay Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to NationsBank the amount necessary to repay such Swing
Line Outstandings (which NationsBank shall then apply to such repayment) and
credit any balance of the Advance in immediately available funds in the manner
directed by the Borrower pursuant to Section 3.1(c)(ii) hereof. The proceeds of
such Advances shall be paid to NationsBank for application to the Swing Line
Outstandings and the Lenders shall then be deemed to have made Loans in the
amount of such Advances. The Swing Line shall continue in effect until the
Revolving Credit Termination Date, at which time all Swing Line Outstandings and
accrued interest thereon shall be due and payable in full.
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ARTICLE IV
Letters of Credit
IV.1. Letters of Credit. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower Letters of Credit upon delivery to
the Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to the Issuing Bank; provided, that (i)
the Letter of Credit Outstandings shall not exceed the Total Letter of Credit
Commitment and (ii) no Letter of Credit shall be issued if, after giving effect
thereto, Letter of Credit Outstandings plus Revolving Credit Outstandings plus
Swing Line Outstandings shall exceed the lesser of (x) the Total Revolving
Credit Commitment or (y) the Borrowing Base. No Letter of Credit shall have an
expiry date (including all rights of the Borrower or any beneficiary named in
such Letter of Credit to require renewal) or payment date occurring later than
the earlier to occur of (x) (i) in the case of standby Letters of Credit, one
year after the date of its issuance and (ii) in the case of documentary Letters
of Credit, 120 days or (y) 5 days prior to the Stated Termination Date.
IV.2. Reimbursement.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit and all reasonable expenses incurred by the Issuing
Bank in connection with the Letters of Credit, and in any event and
without demand to place in possession of the Issuing Bank (which shall
include Advances under the Revolving Credit Facility if permitted by
Section 3.1 hereof and Swing Line Loans if permitted by Section 3.14
hereof) sufficient funds to pay all debts and liabilities arising under
any Letter of Credit. The Issuing Bank agrees to give the Borrower
prompt notice of any request for a draw under a Letter of Credit. The
Issuing Bank may charge any account the Borrower may have with it for
any and all amounts the Issuing Bank pays under a Letter of Credit,
plus charges and reasonable expenses as from time to time agreed to by
the Issuing Bank and the Borrower; provided that to the extent
permitted by Section 3.1(c)(iv) hereof and Section 3.14 hereof, amounts
shall be paid pursuant to Advances under the Revolving Credit Facility
or, if the Borrower shall elect, by Swing Line Loans. The Borrower
agrees to pay the Issuing Bank interest on any Reimbursement
Obligations not paid when due hereunder at the Base Rate plus two
percent (2.0%), or the maximum rate permitted by applicable law, if
lower, such rate to be calculated on the basis of a year of 360 days
for actual days elapsed.
(b) In accordance with the provisions of Section 3.1(c)
hereof, the Issuing Bank shall notify the Agent of any drawing under
any Letter of Credit promptly following the receipt by the Issuing Bank
of such drawing.
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(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit in an amount equal to such Lender's Applicable Commitment
Percentage of such liability, and to the extent that the Borrower is
obligated to pay the Issuing Bank under Section 4.2(a) hereof, each
Lender (other than the Issuing Bank) thereby shall absolutely,
unconditionally and irrevocably assume, and shall be unconditionally
obligated to pay to the Issuing Bank as hereinafter described, its
Applicable Commitment Percentage of the liability of the Issuing Bank
under such Letter of Credit.
(i) Each Lender (including the Issuing Bank in its
capacity as a Lender) shall, subject to the terms and
conditions of Article III, pay to the Agent for the account of
the Issuing Bank at the Principal Office in Dollars and in
immediately available funds, an amount equal to its Applicable
Commitment Percentage of any drawing under a Letter of Credit,
such funds to be provided in the manner described in Section
3.1(c)(iv) hereof.
(ii) Simultaneously with the making of each payment by
a Lender to the Issuing Bank pursuant to Section 3.1(c)(iv)(B)
hereof, such Lender shall, automatically and without any
further action on the part of the Issuing Bank or such Lender,
acquire a Participation in an amount equal to such payment
(excluding the portion thereof constituting interest accrued
prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. The Reimbursement
Obligations of the Borrower shall be immediately due and
payable whether by Advances made in accordance with Section
3.1(c)(iv) hereof, Swing Line Loans made in accordance with
Section 3.14 hereof, or otherwise.
(iii) Each Lender's obligation to make payment to the
Agent for the account of the Issuing Bank pursuant to Section
3.1(c)(iv) hereof and this Section 4.2(c) hereof, and the
right of the Issuing Bank to receive the same, shall be
absolute and unconditional, shall not be affected by any
circumstance whatsoever and shall be made without any offset,
abatement, withholding or reduction whatsoever. If any Lender
is obligated to pay but does not pay amounts to the Agent for
the account of the Issuing Bank in full upon such request as
required by Section 3.1(c)(iv) hereof or this Section 4.2(c)
hereof, such Lender shall, on demand, pay to the Agent for the
account of the Issuing Bank interest on the unpaid amount for
each day during the period commencing on the date of notice
given to such Lender pursuant to Section 3.1(c) hereof until
such Lender pays such amount to the Agent for the account of
the Issuing Bank in full at the interest rate per annum for
overnight borrowing by the Agent from the Federal Reserve
Bank.
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(iv) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth in
clause (ii) above, then at any time payment (in fully
collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by Issuing Bank
from the Borrower, Issuing Bank shall promptly (but in no
event later than one Business Day following receipt) pay to
each Lender an amount equal to its Applicable Commitment
Percentage of such payment from the Borrower.
(d) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Agent a notice describing the
aggregate undrawn amount of all Letters of Credit at the end of such
quarter. Upon the request of any Lender from time to time, the Issuing
Bank shall deliver to the Agent, and the Agent shall deliver to such
Lender, any other information reasonably requested by such Lender with
respect to each Letter of Credit outstanding.
(e) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Article
VII, be subject to the conditions that such Letter of Credit be in such
form and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures
of the Issuing Bank with respect to similar letters of credit, and the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as the Issuing Bank shall
have reasonably requested consistent with such practices and
procedures. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 revision, International Chamber of Commerce Publication No. 500
and all subsequent amendments and revisions thereto.
(f) The Borrower agrees that Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other documents otherwise in order which may be
signed or issued by an administrator, executor, trustee in bankruptcy,
debtor in possession, assignee for the benefit of creditors,
liquidator, receiver, attorney in fact or other legal representative of
a party who is authorized under such Letter of Credit to draw or issue
any drafts or other documents.
(g) Without limiting the generality of the provisions of
Section 13.5 hereof, the Borrower hereby agrees to indemnify and hold
harmless the Issuing Bank, each other Lender and the Agent from and
against any and all claims and damages, losses, liabilities, reasonable
costs and expenses which the Issuing Bank, such other Lender or the
Agent may incur (or which may be claimed against the Issuing Bank, such
other Lender or the Agent) by any Person by reason of or in connection
with the issuance or transfer of or payment or failure to pay under any
Letter of Credit; provided that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, (i) caused by the willful misconduct or gross
negligence of the party to be indemnified or
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(ii) caused by the failure of the Issuing Bank to pay under any Letter
of Credit after the presentation to it of a request for payment
strictly complying with the terms and conditions of such Letter of
Credit, unless such payment is prohibited by any law, regulation, court
order or decree. The indemnification and hold harmless provisions of
this Section 4.2(g) hereof shall survive the Facility Termination Date.
(h) Without limiting Borrower's rights as set forth in Section
4.2(g) hereof, the obligation of the Borrower to immediately reimburse
the Issuing Bank for drawings made under Letters of Credit and the
Issuing Bank's right to receive such payment shall be absolute,
unconditional and irrevocable, and that such obligations of the
Borrower shall be performed strictly in accordance with the terms of
this Agreement and such Letters of Credit and the related Applications
and Agreement for any Letter of Credit, under all circumstances
whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever; or
(vi) any delay, extension of time, renewal, compromise
or other indulgence or modification granted or agreed to by
the Agent, with or without notice to or approval by the
Borrower in respect of any of Borrower's Obligations under
this Agreement.
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IV.3. Letter of Credit Facility Fees. The Borrower shall pay to the
Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, an issuance fee on the aggregate amount available to be
drawn on each (i) standby Letter of Credit, at a rate equal to the Applicable
Margin for Eurodollar Rate Loans under the Revolving Credit Facility, and (ii)
documentary Letter of Credit, 1/4% for each 120 day term or part thereof of such
Letter of Credit is outstanding. Such fees shall be due with respect to each
Letter of Credit quarterly in arrears on the last day of each December, March,
June and September, the first such payment to be made on the first such date
occurring after the date of issuance of a Letter of Credit. The fees described
in this Section 4.3 before shall be calculated on the basis of a year of 360
days for the actual number of days elapsed.
IV.4. Administrative Fees. The Borrower shall pay to the Issuing Bank
(i) such administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as the Issuing Bank and the
Borrower shall agree from time to time and (ii) a fronting fee for each Letter
of Credit equal to 1/8% on the aggregate amount available to be drawn on each
Letter of Credit.
IV.5. Existing Letters of Credit. The parties hereto agree that on the
Closing Date all Existing Letters of Credit shall be deemed Letters of Credit
hereunder and the outstanding undrawn face amount of such Existing Letters of
Credit shall be deemed Letter of Credit Outstandings hereunder.
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ARTICLE V
Security
V.1. Security Interest. As security for the full and timely payment and
performance of all Obligations, and as a continuation of the security interests
and rights granted by the Borrower and its Domestic Subsidiaries under the
Existing Credit Agreement and the Security Instruments (as defined therein), the
Borrower shall, and shall cause each Domestic Subsidiary to, on or before the
Closing Date deliver to the Agent, in form and substance reasonably acceptable
to the Agent, the Security Agreement, the Intellectual Property Security
Agreement, the Landlord Waivers and such duly executed and filed Uniform
Commercial Code financing statements sufficient to grant to the Agent a valid,
duly perfected security interest in the Collateral described therein, subject to
no prior Liens other than Permitted Liens, and do all things reasonably
necessary in the opinion of the Agent and its counsel to grant to and continue
with the Agent for the benefit of the Lenders a first priority security
interest, duly perfected with respect to Collateral governed by the UCC, in all
Collateral subject to no prior Lien or other encumbrance or restriction on
transfer (other than restrictions on transfer imposed by applicable securities
laws and Permitted Liens).
V.2. Stock Pledge. As security for the full and timely payment and
performance of all Obligations now existing or hereafter arising, the Borrower
and each Domestic Subsidiary owning any Pledged Stock shall on or before the
Closing Date deliver to the Agent, in form and substance reasonably acceptable
to the Agent, the Stock Pledge Agreement together with certificates representing
such Pledged Stock and such stock powers duly executed in blank as may be
required by the Agent in accordance with the terms hereof and thereof. In
addition to any Stock Pledge Agreement required to be delivered pursuant to
Section 9.21 hereof, the Borrower and each Subsidiary hereby agrees to pledge to
the Agent for the benefit of the Lenders (a) 100% of the capital stock and
related interests and rights directly or indirectly owned by the Borrower of any
Domestic Subsidiary or Domestic Control Subsidiary hereafter acquired or
created, (b) 65% of the voting stock and related interests and rights directly
or indirectly owned by the Borrower of any Direct Foreign Subsidiary or Direct
Foreign Control Subsidiary hereafter acquired or created and (c) 100% of the
capital stock and related interests and rights directly or indirectly owned by
the Borrower of any Foreign Subsidiary or Foreign Control Subsidiary of the
Borrower to the extent such action would not result in any material adverse tax
impact on the Borrower and, in each case, to deliver to the Agent a Stock Pledge
Agreement substantially in the form of Exhibit G hereto within thirty (30) days
of the acquisition or creation of such Subsidiary.
V.3. Guaranty. To guarantee the full and timely payment and performance
of all Obligations now existing or hereafter arising, the Borrower shall cause
the Facility Guaranty to be delivered by each Domestic Subsidiary, in form and
substance reasonably acceptable to the Agent, on or before the Closing Date. The
Borrower hereby agrees to cause a Guaranty to be delivered by any hereafter
acquired, created or arising (a) Domestic Subsidiary and (b) Foreign Subsidiary
to the extent such action would not result in (i) any material adverse tax
impact on the Borrower or (ii) any violation of any debt agreement to which such
Foreign Subsidiary is a party.
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V.4. Mortgages. As security for the full and timely payment and
performance of all Obligations now existing or hereafter arising, the Borrower
shall cause the Mortgage to be delivered to the Agent after the Closing Date
with respect to any material real property (other than the Florida Office) that
is acquired by the Borrower or any Domestic Subsidiary, in form and substance
reasonably acceptable to the Agent. The Borrower shall deliver to the Agent all
environmental reports, title insurance, appraisals, surveys, legal opinions and
other certificates and documents reasonably requested by the Agent in connection
with such Mortgage.
V.5. Intellectual Property. As security for the full and timely payment
and performance of all Obligations now existing or hereafter arising, the
Borrower and each Domestic Subsidiary owning any material patents, patent
applications, trademarks, trademark registrations and applications therefor,
copyrights, copyright registrations and applications therefor or any other
material intellectual property, shall deliver to the Agent for the benefit of
the Lenders the Intellectual Property Security Agreements and the Intellectual
Property Assignments and opinions of counsel to the Borrower and such Domestic
Subsidiary in any appropriate jurisdiction designated by the Agent as to the
validity and enforceability of such agreements and such other legal matters as
the Agent reasonably requests, in form and substance reasonably acceptable to
the Agent and the Lenders. In addition to any Intellectual Property Security
Agreement required to be delivered pursuant to Section 9.21 hereof, the Borrower
hereby agrees to pledge, or cause to be pledged, all intellectual property
interests and licenses hereafter acquired or created and owned by the Borrower
or any Domestic Subsidiary within thirty (30) days of the acquisition or
creation of such intellectual property or license.
V.6. Information Regarding Collateral. The Borrower represents,
warrants and covenants that (a) the chief executive office of the Borrower and
each Guarantor at the Closing Date is located at the address or addresses
specified on Schedule 5.6 hereto, and (b) Schedule 5.6 hereto contains a true
and complete list of (i) the legal name and address of the Borrower and each
Guarantor and of each other Person that has effected any merger or consolidation
with the Borrower or a Guarantor or contributed or transferred to the Borrower
or a Guarantor any significant portion of its assets constituting Collateral at
any time since January 1, 1993 (excluding Persons making sales in the ordinary
course of their businesses to the Borrower or a Guarantor of property
constituting inventory in the hands of such seller), (ii) each location at which
goods constituting Collateral are now located (together with the name of each
owner of the property located at such address if not the Borrower or the
applicable Guarantor, and a summary description of the relationship between the
applicable Guarantor and such Person), and (iii) each currently used trade style
and each trade name used by the Borrower or any Guarantor since January 1, 1993
and the purposes for which it was used. Borrower shall not change, and shall not
permit any other Guarantor to change, the location of its chief executive office
or any location specified in clause (ii) of the immediately preceding sentence,
or use or permit any Guarantor to use, any additional trade style, except upon
giving not less than thirty (30) days' prior written notice to the Agent and
taking or causing to be taken all such action at Borrower's or such other
Guarantor's expense as may be reasonably requested by the Agent to perfect or
maintain the perfection of the Lien of the Agent in Collateral.
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V.7. Further Assurances. At the request of the Agent, the Borrower
will, and will cause each Subsidiary to, execute by its duly authorized
officers, alone or with the Agent, any certificate, instrument, statement or
document and will procure any such certificate, instrument, statement or
document (and pay all connected costs) which the Agent reasonably deems
necessary to create or preserve the Liens (and the perfection and priority
thereof) of the Agent for the benefit of the Lenders contemplated hereby and by
the other Loan Documents and specifically including all Collateral acquired by
the Borrower or any Guarantor after the Closing Date.
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ARTICLE VI
Change in Circumstances
VI.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or comparable
agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any
such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with respect
to any Loans, its Notes, or its obligation to make Loans, or
change the basis of taxation of any amounts payable to such
Lender (or its Applicable Lending Office) under this Agreement
or its Notes in respect of any Loans (other than taxes imposed
on the overall net income of such Lender by the jurisdiction
in which such Lender has its principal office or such
Applicable Lending Office and franchise taxes);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the Commitments of such
Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the United States market for
certificates of deposit or the London interbank market any
other condition affecting this Agreement or its Note or any of
such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or its Notes with respect to any Loans, then the Borrower
shall pay to such Lender on demand such amount or amounts as will
compensate such Lender for such increased cost or reduction. If any
Lender requests compensation by the Borrower under this Section 6.1(a)
hereof, the Borrower may, by notice to such Lender (with a copy to the
Agent), suspend the obligation of such Lender to make or Continue Loans
of the Type with respect to which such compensation is requested, or to
Convert Loans of any other Type into Loans of such Type, until the
event
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or condition giving rise to such request ceases to be in effect (in
which case the provisions of Section 6.4 hereof shall be applicable);
provided that such suspension shall not affect the right of such Lender
to receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy 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
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or comparable agency, has or
would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence
of such Lender's obligations hereunder to a level below that which such
Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand
the Borrower shall pay to such Lender such additional amount or amounts
as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
Section 6.1 hereof and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the reasonable judgment
of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section 6.1 hereof shall furnish to the
Borrower and the Agent a statement setting forth the additional amount
or amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender may
use any reasonable averaging and attribution methods.
VI.2. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower
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shall, on the last day(s) of the then current Interest Period(s) for the
outstanding Loans of the affected Type, either prepay such Loans or Convert such
Loans into another Type of Loan in accordance with the terms of this Agreement.
VI.3. Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Rate Loans
hereunder, then such Lender shall promptly notify the Borrower thereof and such
Lender's obligation to make or Continue Eurodollar Rate Loans and to Convert
other Types of Loans into Eurodollar Rate Loans shall be suspended until such
time as such Lender may again make, maintain, and fund Eurodollar Rate Loans (in
which case the provisions of Section 6.4 hereof shall be applicable).
VI.4. Treatment of Affected Loans. If the obligation of any Lender to
make a particular Type of Eurodollar Rate Loan or to Continue, or to Convert
Loans of any other Type into, Loans of a particular Type shall be suspended
pursuant to Section 6.1 or 6.3 hereof (Loans of such Type being herein called
"Affected Loans" and such Type being herein called the "Affected Type"), such
Lender's Affected Loans shall be automatically Converted into Base Rate Loans on
the last day(s) of the then current Interest Period(s) for Affected Loans (or,
in the case of a Conversion required by Section 6.3 hereof, on such earlier date
as such Lender may specify to the Borrower with a copy to the Agent) and, unless
and until such Lender gives notice as provided below that the circumstances
specified in Section 6.1 or 6.3 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 6.1 or 6.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 6.4 hereof
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Commitments.
VI.5. Compensation. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender)
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to compensate it for any loss, cost, or expense (including loss of anticipated
profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 11.1 hereof) on a date
other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Article VII to be satisfied) to borrow (other than by reason of the
failure of a Lender or Lenders to make funds available without cause),
Convert, Continue, or prepay a Eurodollar Rate Loan on the date for
such borrowing, Conversion, Continuation, or prepayment specified in
the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Agreement.
The Borrower hereby acknowledges that such losses, costs and expenses
requiring compensation from the Borrower shall include any such loss, cost or
expense incurred within 90 days after the Closing Date in connection with the
syndication of the Facilities. Any Lender claiming compensation under this
Section 6.5 hereof shall furnish the Borrower and the Agent a statement setting
forth in reasonable detail the amounts to be paid to it hereunder and the
determination thereof shall be conclusive absent manifest error.
VI.6. Taxes.
(a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender and the Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender (or its Applicable Lending Office) or the Agent
(as the case may be) is organized or any political subdivision thereof
(all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 6.6 hereof) such Lender or the Agent receives an amount equal
to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions, (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law, and (iv) the
Borrower shall furnish to the Agent, at its address referred to in
Section 13.2 hereof, the original or a certified copy of a receipt
evidencing payment thereof.
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(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 6.6 hereof) paid by
such Lender or the Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or with
respect thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter if requested in writing by the Borrower or the Agent (but
only so long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Agent with (i) Internal Revenue Service
Form 1001 or 4224, as appropriate, or any successor form prescribed by
the Internal Revenue Service, certifying that such Lender is entitled
to benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of interest
or certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the
United States, (ii) Internal Revenue Service Form W-8 or W-9, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on payments
pursuant to this Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Agent with the appropriate form
pursuant to Section 6.6(d) hereof (unless such failure is due to a
change in treaty, law, or regulation occurring subsequent to the date
on which a form originally was required to be provided), such Lender
shall not be entitled to indemnification under Section 6.6(a), 6.6(b)
or 6.6(c) hereof with respect to Taxes imposed by the United States;
provided, however, that should a Lender, which is otherwise exempt from
or subject to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required hereunder, the
Borrower shall take such steps as such Lender shall reasonably request
to assist such Lender to recover such Taxes at such Lender's expense.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 6.6 hereof,
then such Lender will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to
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eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent evidence of such
payment.
(h) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 6.6 hereof shall survive the
termination of the Commitments and the payment in full of the Notes.
VI.7. Replacement Banks. The Borrower may, in its sole discretion, on
ten (10) Business Days' prior written notice to the Agent and the applicable
Lender, cause a Lender who has (a) incurred increased costs or is unable to make
Eurodollar Rate Loans, (b) failed to fund any requested Advance, or (c) made any
claim for taxes under Section 6.6 hereof, require such Lender to (and such
Lender shall) assign, pursuant to Section 13.1 hereof, all of its rights and
obligations under this Agreement to an Eligible Assignee designated by the
Borrower which is willing to become a Lender for a purchase price equal to the
outstanding principal amount of the Loans payable to such Lender plus any
accrued but unpaid interest on such Loans, any accrued but unpaid fees with
respect to such Lender's Commitments and any other amount payable to such Lender
under this Agreement; provided, however, that any expenses or other amounts
which would be owing to such Lender pursuant to any indemnification provision
hereof (including, if applicable, Section 6.5 hereof) shall be payable by the
Borrower as if the Borrower had prepaid the Loans of such Lender rather than
such Lender having assigned its interest hereunder. The Borrower or the assignee
shall pay the applicable processing fee under Section 13.1 hereof.
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ARTICLE VII
Conditions to Effectiveness
VII.1. Conditions to Effectiveness. The effectiveness of this Agreement
and the obligation of the Lenders to continue the Term Loans and make additional
Advances under the Revolving Credit Facility, and of the Issuing Bank to issue
any additional Letters of Credit, and of NationsBank to make any Swing Line
Loans, is subject to the conditions precedent that:
(a) the Agent shall have received on or before the Closing
Date, in form and substance satisfactory to the Agent and Lenders, the
following:
(i) executed originals of each of this Agreement, the
Notes, the Security Instruments and the other Loan Documents,
together with all schedules and exhibits thereto;
(ii) certificates representing all of the shares of
Pledged Stock, together with undated stock powers executed in
blank;
(iii) the favorable written opinion with respect to the
Loan Documents and the transactions contemplated thereby of
counsel to the Credit Parties dated the Closing Date,
addressed to the Agent and the Lenders and satisfactory to
▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., special counsel to the
Agent, substantially in the form of Exhibit P hereto;
(iv) a certificate of the Chief Financial Officer of
the Borrower, certifying the solvency of the Borrower and its
Subsidiaries on the date of and immediately after giving
effect to the transactions contemplated hereby;
(v) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date (or, with respect
to any Guarantor, the date of the Existing Credit Agreement),
approving and adopting the Loan Documents to be executed by
such Person, and authorizing the execution and delivery
thereof;
(vi) specimen signatures of officers of each Credit
Party executing the Loan Documents on behalf of such Credit
Party, certified by the secretary or assistant secretary of
such Credit Party;
(vii) the charter documents of each Credit Party
certified as of a recent date by the Secretary of State of its
state of organization;
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(viii) the bylaws of each Credit Party certified as
of the Closing Date (or, with respect to any Guarantor, the
date of the Existing Credit Agreement) as true and correct by
its secretary or assistant secretary;
(ix) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each Credit Party as to the due existence and
good standing of each Credit Party;
(x) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to
conduct business under assumed name, issued in respect of each
Credit Party as of a recent date by the Secretary of State or
comparable official of each jurisdiction in which the failure
to be qualified to do business or authorized so to conduct
business could have a Material Adverse Effect;
(xi) notice of appointment of the initial Authorized
Representative(s);
(xii) evidence of all insurance required by the Loan
Documents;
(xiii) a Borrowing Notice, if applicable, Borrowing
Base Certificate, and, if elected by the Borrower, Interest
Rate Selection Notice;
(xiv) evidence of the filing of Uniform Commercial
Code financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the Agent
under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such
other documents and/or evidence of other actions as may be
necessary under applicable law to perfect the Liens of the
Agent under the Security Instruments as a first priority Lien
in and to such other Collateral as the Agent may require;
(xv) fully executed Landlord Waivers for the
warehouse facilities located in Nevada, Florida, Arkansas,
South Carolina, California, North Carolina and Washington;
(xvi) an executed copy of the Transaction Documents
certified as a full, true and correct copy of such documents
by an Authorized Officer of the Borrower;
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(xvii) an executed copy of the Financing Documents
certified as a full, true and correct copy of such documents
by an Authorized Representative of the Borrower;
(xviii) evidence that all fees payable by the
Borrower on the Closing Date to the Agent, NMS and the Lenders
have been paid in full;
(xix) copies of all executed employment or
compensation agreements with all members of key management of
the Borrower;
(xx) The Agent and the Lenders shall have received
(a) the unaudited financial statements for the Borrower and
its Subsidiaries and HPG for the three-month period ended
March 31, 1998 and for all subsequent monthly periods ended
prior to June 26, 1998, (b) audited financial statements of
HPG for each of fiscal years 1995, 1996 and 1997, (c) pro
forma consolidated and consolidating balance sheets of the
Borrower and its Subsidiaries as of March 31, 1998 and
financial projections of the Borrower and its Subsidiaries
covering not less than five complete Fiscal Years after the
Closing, in each case giving effect to the Acquisition, the
transactions contemplated thereby and the proposed capital
structure, and (d) interim monthly financial statements and
monthly working capital detail for the most recent trailing
twelve months for which internal financial statements are
available and the first projected year, in each case in form
and substance satisfactory to the Agent, all of which
projections and financial statements shall conform to GAAP
applied on a consistent basis except as otherwise disclosed;
(xxi) certificate of an Authorized Representative
dated the Closing Date certifying as to the matters set forth
in Section 7.1(b)(i), (ii), (iii), (iv), (vi) and (vii) below;
(xxii) copies of independent environmental reports
with respect to the Queretero Property in form and content
acceptable to the Agent and the Lenders;
(xxiii) such other documents, instruments,
certificates and opinions as the Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby;
(b) Each of the following shall be true:
(i) The Junior Financing and the HPG Acquisition
shall have been consummated on terms acceptable to the Agent
and the Lenders;
(ii) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since the date of the information contained in the
financial and business projections, budgets, pro forma data
and forecasts concerning the Credit Parties delivered to the
Agent prior to the Closing Date that has had or could
reasonably be expected to result in a Material Adverse Effect;
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(iii) There shall not be any action, suit,
investigation or proceeding pending or threatened in any court
or before any arbitrator or governmental instrumentality that
(a) purports to affect the transactions contemplated hereby
(including the HPG Acquisition), (b) could reasonably be
expected to have a material adverse effect on the financings
or any other transactions contemplated hereby (including the
HPG Acquisition), or on the Borrower or its Subsidiaries or
(c) would reasonably be expected to have a material adverse
effect on the ability of the parties hereto and thereto to
perform their obligations hereunder or under the Transaction
Documents;
(iv) the Borrower and its Subsidiaries shall have
received all approvals, consents and waivers, and shall have
made or given all necessary filings and notices as shall be
required to consummate the transactions contemplated hereby
and under the Junior Financing Documents and the Transaction
Documents without the occurrence of any default under,
conflict with or violation of (A) any applicable law, rule,
regulation, order or decree of any Governmental Authority or
arbitral authority or (B) any agreement, document or
instrument to which any of the Borrower or any Subsidiary is a
party or by which any of them or their properties are bound or
(C) the charter documents or bylaws of any Credit Party; and
(v) there shall not have occurred or exist (A) an
engagement in hostilities by the United States of America or
other national or international emergency or calamity, (B) a
general suspension of or material limitation on trading on the
New York Stock Exchange or other national securities exchange,
(C) the declaration of a general banking moratorium by any
applicable Governmental Authority or the imposition by any
applicable Governmental Authority of any material limitation
on transactions of the type contemplated by the Loan
Documents, or (D) any other material disruption of financial
or capital markets that could reasonably be expected to
adversely affect the transactions contemplated under the Loan
Documents.
(vi) There shall not have occurred a material adverse
change since December 31, 1997 in the business, assets,
operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries and HPG, taken as a whole or
prospects of the Borrower and its Subsidiaries, taken as a
whole, or in the facts and information regarding such entities
as represented to date, including, without limitation, the
absence of any (a) event or circumstance, (b) change in laws
or regulations or (c) action, suit, investigation or
proceeding pending or threatened in any court or before any
governmental authority that purports to affect the Borrower or
any of its Subsidiaries, or HPG or any transaction
contemplated hereby, and that could have or could be
reasonably expected to have a Material Adverse Effect or a
material adverse effect on the ability of the Borrower or its
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Subsidiaries or HPG to perform their respective obligations
under the Transaction Documents or the Junior Financing
Documents.
(vii) All of the representations and warranties and
covenants contained in the Transaction Documents and the
Junior Financing Documents shall be true or performed in
accordance with their terms, respectively.
VII.2. Conditions of Loans and Letter of Credit. The obligations of the
Lenders to make any Loans, and the Issuing Bank to issue Letters of Credit, and
of NationsBank to make any Swing Line Loan, hereunder on or subsequent to the
Closing Date are subject to the satisfaction of the following conditions:
(a) the Agent or, in the case of Swing Line Loans, NationsBank
shall have received a Borrowing Notice if required by Article III;
(b) the representations and warranties of the Borrower set
forth in Article VIII and in each of the other Loan Documents shall be
true and correct in all material respects on and as of the date of such
Advance, Swing Line Loan or Letter of Credit issuance or renewal, with
the same effect as though such representations and warranties had been
made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in Section 8.6(a)(i)
hereof shall be deemed to be those financial statements most recently
delivered to the Agent and the Lenders pursuant to Section 9.1 hereof
from the date financial statements are delivered to the Agent and the
Lenders in accordance with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in Article XI shall have occurred and be
continuing; and
(e) the Agent and the Lenders shall be reasonably satisfied
that the Borrower and each Subsidiary will be Year 2000 Compliant on
and after 90 days prior to year 2000.
(f) immediately after giving effect to:
(i) a Revolving Loan, the aggregate principal balance
of all outstanding Loans for each Lender shall not exceed such
Lender's Revolving Credit Commitment;
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(ii) a Letter of Credit or renewal thereof, the
aggregate principal balance of all outstanding Participations
in Letters of Credit and Reimbursement Obligations (or in the
case of the Issuing Bank, its remaining interest after
deduction of all Participations in Letters of Credit and
Reimbursement Obligations of other Lenders) for each Lender
and in the aggregate shall not exceed, respectively, (X) such
Lender's Letter of Credit Commitment or (Y) the Total Letter
of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line Outstandings
shall not exceed $10,000,000; and
(iv) a Revolving Loan, Swing Line Loan or a Letter of
Credit or renewal thereof, the sum of Letter of Credit
Outstandings plus Revolving Credit Outstandings plus Swing
Line Outstandings shall not exceed the lesser of (x) the Total
Revolving Credit Commitment or (y) the Borrowing Base.
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ARTICLE VIII
Representations and Warranties
The Borrower represents and warrants with respect to itself and its
Subsidiaries (which representations and warranties are made after giving effect
to the HPG Acquisition and which shall survive the delivery of the documents
mentioned herein and the making of Loans), that:
VIII.1. Organization and Authority.
(a) The Borrower and each Subsidiary is a corporation duly
organized and validly existing under the laws of the jurisdiction of
its formation;
(b) The Borrower and each Subsidiary (x) has the requisite
power and authority to own its properties and assets and to carry on
its business as now being conducted and as contemplated in the Loan
Documents, and (y) is qualified to do business in every jurisdiction in
which failure so to qualify would have a Material Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party;
(d) Each Credit Party has the power and authority to execute,
deliver and perform the applicable Facility Guaranty and each of the
other Loan Documents to which it is a party; and
(e) When executed and delivered, each of the Loan Documents to
which the Borrower or any other Credit Party is a party will be the
legal, valid and binding obligation or agreement, as the case may be,
of the Borrower or such Credit Party, enforceable against the Borrower
or such Credit Party in accordance with its terms, subject to the
effect of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general principles of
equity (whether considered in a proceeding at law or in equity).
VII.2. Loan Documents. The execution, delivery and performance by the
Borrower and each other Credit Party of each of the Loan Documents to which it
is a party:
(a) have been duly authorized by all requisite corporate
action (including any required shareholder approval) of the Borrower
and each other Credit Party required for the lawful execution, delivery
and performance thereof;
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(b) do not violate any provisions of (i) applicable law, rule
or regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental Authority or arbitral authority
binding on the Borrower or any other Credit Party or its properties, or
(iii) the charter documents or bylaws of the Borrower or any other
Credit Party;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which Borrower or any other Credit Party is a party, or by
which the properties or assets of Borrower or any other Credit Party
are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of Borrower or any
other Credit Party except any Liens in favor of the Agent and the
Lenders created by the Security Instruments.
VIII.3. Solvency. The Borrower and each other Credit Party is Solvent
after giving effect to the transactions contemplated by the Loan Documents.
VIII.4. Subsidiaries and Shareholders. All shares of capital stock or
other equity interests of the Borrower are duly authorized, validly issued,
fully paid and non-assessable. The Borrower has no Subsidiaries other than those
Persons listed as Subsidiaries in Schedule 8.4 hereto and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 9.21 hereof; Schedule 8.4 hereto states as of the date hereof the
organizational form of each entity, the authorized and issued capitalization of
each Subsidiary listed thereon, the number of shares or other equity interests
of each class of capital stock or interest issued and outstanding of each such
Subsidiary and the number and/or percentage of outstanding shares or other
equity interest (including options, warrants and other rights to acquire any
interest) of each such class of capital stock or other equity interest owned by
Borrower or by any such Subsidiary; the outstanding shares or other equity
interests of each such Subsidiary have been duly authorized and validly issued
and are fully paid and nonassessable; and Borrower and each such Subsidiary owns
beneficially and of record all the shares and other interests it is listed as
owning in Schedule 8.4 hereto, free and clear of any Lien other then the Liens
created under the Loan Documents in favor of the Agent for the benefit of the
Lenders.
VIII.5. Ownership Interests. The Borrower owns no interest in any
Person other than the Persons listed in Schedule 8.4 hereto and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 9.21 hereof.
VIII.6. Financial Condition
(a) The Borrower has heretofore furnished to the Agent and
each Lender audited consolidated and related consolidating balance
sheets of the Borrower and its Subsidiaries (including Borrower) as at
December 31, 1997 and the notes thereto and the
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related consolidated statements of income, shareholders' equity and
cash flows for the Fiscal Year then ended as examined and certified by
the Borrower's independent certified public accountants. Except as set
forth therein, such financial statements (including the notes thereto)
present fairly the financial condition of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and results of their
operations and the changes in its shareholders' equity for the Fiscal
Year then ended, all in conformity with GAAP applied on a Consistent
Basis;
(b) since December 31, 1997, there has been no material
adverse change in the condition, financial or otherwise, of the
Borrower and its Subsidiaries or in the businesses, properties,
performance, prospects or operations of the Borrower or its
Subsidiaries, nor have such businesses or properties been materially
adversely affected as a result of any fire, explosion, earthquake,
accident, strike, lockout, combination of workers, flood, embargo or
act of God; and
(c) the consolidated balance sheets of each of the Borrower
and its Subsidiaries and HPG that are attached hereto as Schedule
8.6(c) hereto fairly present the consolidated financial position of the
Borrower and its Subsidiaries and HPG as of the dates set forth
therein, in each case in accordance with GAAP applied on a Consistent
Basis (except as otherwise specifically indicated therein). The
consolidated statements of income and cash flows of the Borrower and
its Subsidiaries and HPG that are attached hereto as Schedule 8.6(c)
have been prepared in conformity with GAAP applied on a Consistent
Basis through all the periods involved (except as otherwise
specifically indicated therein) and fairly present the consolidated
results of operations of each of the Borrower and its Subsidiaries and
HPG for the periods indicated. The pro forma consolidated statements of
income and cash flows included in Schedule 8.6(c) hereto fairly present
the estimated consolidated income and cash flows of the Borrower and
its Subsidiaries assuming the consummation of the HPG Acquisition as if
it had occurred on the date set forth therein, and the pro forma
consolidated balance sheet of the Borrower included in Schedule 8.6(c)
hereto fairly presents the consolidated financial condition of the
Borrower and its Subsidiaries on the Closing Date (after giving effect
to all simultaneous transactions to occur on such date).
(d) except as set forth in the financial statements referred
to in Section 8.6(a) hereof or as set forth in Schedule 8.6(d) hereto,
neither the Borrower nor any Subsidiary has incurred, other than in the
ordinary course of business, any material Indebtedness, Contingent
Obligation or other commitment or liability which remains outstanding
or unsatisfied.
VIII.7. Title to Properties. The Borrower and each of its Subsidiaries
has good and marketable title to all its real and personal properties, subject
to no transfer restrictions or Liens of any kind, except for the transfer
restrictions and Liens created under the Existing Credit Agreement or described
in Schedule 8.7 hereto.
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VIII.8. Taxes. The Borrower and each of its Subsidiaries have filed or
caused to be filed all federal, state and local tax returns which are required
to be filed by it and, except for taxes and assessments being contested in good
faith by appropriate proceedings diligently conducted and against which reserves
reflected in the financial statements described in Section 8.6(a) hereof and
satisfactory to the Borrower's independent certified public accountants have
been established, have paid or caused to be paid all taxes as shown on said
returns or on any assessment received by it, to the extent that such taxes have
become due.
VIII.9. Other Agreements. Neither the Borrower nor any Subsidiary is:
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which the Borrower or any Subsidiary is a
party, which default has, or if not remedied within any applicable
grace period could reasonably be likely to have, a Material Adverse
Effect.
VIII.10. Litigation. Except as set forth in Schedule 8.10 hereto, there
is no action, suit, investigation or proceeding at law or in equity or by or
before any governmental instrumentality or agency or arbitral body pending, or,
to the knowledge of the Borrower, threatened by or against the Borrower, or any
of its Subsidiaries or affecting the Borrower or any of its Subsidiaries or any
properties or rights of the Borrower or any of its Subsidiaries, which could
reasonably be expected to have a Material Adverse Effect.
VIII.11. Margin Stock. The proceeds of the borrowings made hereunder
will be used by the Borrower only for the purposes expressly authorized herein.
None of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 224) of the Board. Neither the Borrower nor any
agent acting in its behalf has taken or will take any action which might cause
this Agreement or any of the documents or instruments delivered pursuant hereto
to violate any regulation of the Board or to violate the Securities Exchange Act
of 1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof.
VIII.12. Investment Company. Neither the Borrower nor any of its
Subsidiaries is an "investment company," or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended (15 U.S.C.
ss. 80a-1, et seq.). The application of the proceeds of the Loans and repayment
thereof by the Borrower and the performance by the Borrower and the other Credit
Parties of the transactions contemplated by the Loan Documents will not violate
any provision of said Act, or any rule, regulation or order issued by the
Securities and Exchange Commission thereunder, in each case as in effect on the
date hereof.
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VIII.13. Intellectual Property. The Borrower and its Subsidiaries own
or have the right to use under valid license agreements or otherwise, all
licenses, franchises, patents, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights, and all applications for any of the
foregoing, material to the conduct of their businesses as now conducted (the
"Intellectual Property"), all such Intellectual Property being identified on the
schedules to the Intellectual Property Security Agreement and, except as set
forth on Schedule 8.13 hereto, without conflict with any patent, license,
franchise, trademark, trade secrets and confidential commercial or proprietary
information, trade name, copyright, rights to trade secrets or other proprietary
rights of any other Person. Each Credit Party owning any Collateral as defined
in the Intellectual Property Security Agreement is a party to the Intellectual
Property Security Agreement.
VIII.14. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any other Credit Party in accordance with or pursuant to any
Loan Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation of the Loan Documents
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it was
made, in order to make any such warranty, representation or statement contained
therein not misleading.
VIII.15. No Consents, Etc. Neither the respective businesses or
properties of the Borrower or any of its Subsidiaries, nor any relationship
between the Borrower or any of its Subsidiaries and any other Person, nor any
circumstance in connection with the execution, delivery and performance of the
Loan Documents and the transactions contemplated thereby, is such as to require
a consent, approval or authorization of, or filing, registration or
qualification with, any Governmental Authority or any other Person on the part
of the Borrower or any of its Subsidiaries as a condition to the execution,
delivery and performance of, or consummation of the transactions contemplated by
the Loan Documents, which, if not obtained or effected, would be reasonably
likely to have a Material Adverse Effect, or if so, such consent, approval,
authorization, filing, registration or qualification has been duly obtained or
effected, as the case may be.
VIII.16. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in compliance
with all applicable provisions of ERISA and the regulations and
published interpretations thereunder and in compliance with all Foreign
Benefit Laws with respect to all Employee Benefit Plans except for any
required amendments for which the remedial amendment period as defined
in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of
the Code has been
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determined by the Internal Revenue Service to be so qualified, each
trust related to such plan has been determined to be exempt under
Section 501(a) of the Code and each Employee Benefit Plan subject to
any Foreign Benefit Law has received the required approvals from any
Governmental Authority regulating such Employee Benefit Plan. No
material liability has been incurred by the Borrower or any ERISA
Affiliate which remains unsatisfied for any taxes or penalties with
respect to any Employee Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA or
whose funding is regulated by any Foreign Benefit Law, did not, as of
the most recent valuation date for each such plan, exceed the then
current value of the assets of such Employee Benefit Plan allocable to
such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan subject to Title IV of ERISA or the funding of which is
regulated by any Foreign Benefit Law, maintained by the Borrower or any
ERISA Affiliate, has been administered in accordance with its terms in
all material respects and is in compliance in all material respects
with all applicable requirements of ERISA, all Foreign Benefit Laws and
other applicable laws, regulations and rules;
(f) The consummation of the Loans and the issuance of the
Letters of Credit provided for herein will not involve any prohibited
transaction under ERISA which is not subject to a statutory or
administrative exemption; and
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(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan.
VII.17. No Defautl. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
VIII.18. Hazardous Materials.
(a) The Borrower and each of its Subsidiaries is in compliance
with all applicable Environmental Laws in all material respects, and
has been issued and maintains all required federal, state and local
permits, licenses, certificates and approvals pertaining to Hazardous
Materials that are germane to the conduct of its business. Neither the
Borrower nor any of its Subsidiaries has been notified of any pending
or threatened action, suit, proceeding or investigation which, and
neither the Borrower nor any of its Subsidiaries is aware of any facts,
which (i) calls into question, or could reasonably be expected to call
into question, compliance by the Borrower or any of its Subsidiaries
with any Environmental Laws, (ii) seeks, or could reasonably be
expected to form the basis of a meritorious proceeding to seek, to
suspend, revoke or terminate any license, permit, certification or
approval pertaining to Hazardous Material that is germane to the
conduct of its business, or (iii) seeks to cause, or could reasonably
be expected to form the basis of a meritorious proceeding to cause, any
property of the Borrower or any of its Subsidiaries to be subject to
any restrictions on ownership, use, occupancy or transferability under
any Environmental Law;
(b) Neither the Borrower nor any of its Subsidiaries, nor, to
the best of Borrower's knowledge, any previous owner or operator of any
real property owned or operated by the Borrower or any of its
Subsidiaries or any other Person, has managed, generated, stored,
released, treated, or disposed of any Hazardous Material on any portion
of such property, or transferred or caused to be transferred any
Hazardous Material from such property to any other location except in
compliance with all Environmental Laws. Except for Hazardous Materials
necessary for the routine maintenance of the Properties owned or
operated by the Borrower and its Subsidiaries and as used in the
ordinary course of the Borrower's or its Subsidiaries' business, which
Hazardous Material shall be used in accordance with all applicable
Environmental Laws, the Borrower covenants it shall, and shall cause
each of its Subsidiaries to, not permit any Hazardous Materials to be
brought on to the real property owned or operated by the Borrower and
its Subsidiaries, or if so brought or found located thereon, shall be
immediately removed, with proper disposal, and all environmental
cleanup requirements shall be diligently undertaken pursuant to all
Environmental Laws.
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VIII.19. Employment Matters.
(a) Except with respect to employees located in Mexico, none
of the employees of the Borrower or any of its Subsidiaries is subject
to any collective bargaining agreement and there are no strikes, work
stoppages, election or decertification petitions or proceedings, unfair
labor charges, equal opportunity proceedings, or other material
labor/employee related controversies or proceedings pending or, to the
best knowledge of the Borrower, threatened against the Borrower or any
such Subsidiary or between the Borrower or any such Subsidiary and any
of their employees, other than employee grievances arising in the
ordinary course of business which could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect;
and
(b) Except to the extent a failure to maintain compliance
would not have a Material Adverse Effect, the Borrower and each of its
Subsidiaries is in compliance in all respects with all applicable laws,
rules and regulations pertaining to labor or employment matters,
including without limitation those pertaining to wages, hours,
occupational safety and taxation and there is neither pending or
threatened any litigation, administrative proceeding nor, to the
knowledge of the Borrower, any investigation, in respect of such
matters which, if decided adversely, could reasonably be likely,
individually or in the aggregate, to have a Material Adverse Effect.
VIII.20. RICO. Neither the Borrower nor any of its Subsidiaries is
engaged in or has engaged in any course of conduct that could subject any of
their respective properties to any Lien, seizure or other forfeiture under any
criminal law, racketeer influenced and corrupt organizations law, civil or
criminal, or other similar laws.
VIII.21. Year 2000 Compliance. The Borrower has (a) undertaken a review
and assessment of the business and operations of the Borrower and its
Subsidiaries with respect to becoming Year 2000 Compliant and the Borrower is
taking or causing to be taken or undertaking to commence all actions necessary
to become and continue to be Year 2000 Compliant prior to 90 days prior to year
2000, including taking all actions and at the times specified in the Year 2000
Compliance Plan, as adopted, and (b) undertaken a review and assessment of the
business and operations of each of its Related Business Parties with respect to
becoming Year 2000 Compliant and the Borrower reasonably believes that each
Related Business Party is taking or causing to be taken or undertaking to
commence all actions necessary to become and continue to be Year 2000 Compliant
prior to 90 days prior to year 2000; the Borrower reasonably believes each of
the Borrower and each Subsidiary will be Year 2000 Compliant prior to, on and
after 90 days prior to year 2000.
VIII.22. Transaction Agreement Representation. To the best of
Borrower's knowledge, each of the representations and warranties of the Seller
contained in Exhibit B of the Transaction Agreement and each of the other
Transaction Documents are true and correct as of the Closing Date.
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ARTICLE IX
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
IX.1. Financial Reports, Etc.
(a) As soon as practical and in any event within 90 days after
the end of each Fiscal Year after the Closing Date, deliver or cause to
be delivered to the Agent and each Lender (i) the audited consolidated
and unaudited consolidating balance sheets of the Borrower and its
Subsidiaries, with the notes thereto, and the related audited
consolidated and unaudited consolidating statements of earnings, cash
flow, and shareholders' equity and the notes thereto, for such Fiscal
Year, setting forth in the case of the consolidated statements
comparative financial statements for the preceding Fiscal Year, all
prepared in accordance with GAAP applied on a Consistent Basis and
containing, with respect to the audited consolidated financial reports,
opinions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or other such independent certified
public accountants selected by the Borrower and approved by the Agent,
which are unqualified and without an exception not acceptable to the
Agent; and (ii) a certificate of an Authorized Representative as to the
absence of any Default or Event of Default and demonstrating compliance
with Section 10.22 hereof, which certificate shall be in the form
attached hereto as Exhibit L and incorporated herein by reference;
(b) as soon as practical and in any event within 45 days after
the end of each fiscal quarter beginning with the fiscal quarter ended
June 30, 1998, deliver to the Agent and each Lender (i) the
consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such fiscal quarter, and the related
consolidated and consolidating statements of earnings and cash flow for
such fiscal quarter and for the period from the beginning of the Fiscal
Year through the end of such fiscal quarter, accompanied by a
certificate of an Authorized Representative to the effect that such
financial statements present fairly the financial position of the
Borrower and its Subsidiaries as of the end of such fiscal quarter and
the results of their operations and the changes in shareholders' equity
for such fiscal quarter, in conformity with the standards of GAAP with
respect to interim financials, and (ii) a certificate of an Authorized
Representative as to the absence of any Default or Event of Default and
containing computations for such quarter comparable to that required
pursuant to Section 9.1(a)(ii);
(c) together with delivery of the financial statements
required under Section 9.1(a) above, deliver or cause to be delivered
to the Agent and each Lender a letter from the Borrower's accountants
specified in Section 9.1(a)(i) hereof stating that, in performing the
audit necessary to render an opinion on the financial statements
delivered under Section 9.1(a)(i), they obtained no knowledge of any
Default or Event of Default by the Borrower in the fulfillment of the
terms and provisions of this Agreement insofar
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as they relate to financial matters (which at the date of such
statement remains uncured); and if the accountants have obtained
knowledge of such Default or Event of Default, a statement specifying
the nature and period of existence thereof;
(d) as soon as practical and in any event within 25 days after
the end of each month, deliver or cause to be delivered to the Agent
and each Lender (i) a summary and aging of Eligible Receivables and
(ii) a Borrowing Base Certificate in the form of Exhibit K hereto;
(e) not later than the last Business Day of each Fiscal Year,
deliver to the Agent and each Lender consolidated financial projections
for the Borrower and its Subsidiaries for the period from the beginning
of the next Fiscal Year to the Stated Maturity Date, prepared on an
annual basis;
(f) promptly upon their becoming available to the Borrower,
the Borrower shall deliver to the Agent and each Lender a copy of (i)
all regular or special reports or effective registration statements
which the Borrower or any Subsidiary shall file from and after the date
hereof with the Securities and Exchange Commission (or any successor
thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower to its shareholders, bondholders or the
financial community in general, and (iii) any management letter or
other report submitted to the Borrower or any of its Subsidiaries by
independent accountants in connection with any annual, interim or
special audit of the Borrower or any of its Subsidiaries;
(g) together with each delivery of the financial statements
required by Section 9.1(a) or (b) hereof, deliver to the Agent and each
Lender a management letter or other report setting forth any material
deviation from the Year 2000 Compliance Plan and any other event or
condition which could reasonably be expected to prevent or materially
delay the Borrower, any Subsidiary or any Related Business Party from
becoming Year 2000 Compliant before 90 days prior to year 2000; and
(h) promptly, from time to time, deliver or cause to be
delivered to the Agent and each Lender such other information regarding
the Borrower's and any of its Subsidiaries' operations, business
affairs and financial condition as the Agent or such Lender may
reasonably request;
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders (or
any affiliate of any Lender) or to the Agent, to any Governmental Authority
having jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or,
subject to Section 13.9 hereof, to any other Person who shall acquire or
consider the assignment of, or acquisition of any participation interest in, any
Obligation permitted by this Agreement.
IX.2. Maintain Properties and Agreements. Maintain (a) all properties
necessary to their operations in good working order and condition, make all
needed repairs, replacements and
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renewals to such properties, and maintain free from Liens all trademarks, trade
names, patents, copyrights, trade secrets, know-how, and other intellectual
property and proprietary information (or adequate licenses thereto), in each
case as are reasonably necessary to conduct their business as currently
conducted or as contemplated hereby, all in accordance with customary and
prudent business practices and (b) all Material Contracts and Material Leases in
full force and effect without material defaults thereunder.
IX.3. Existence, Qualification, Etc. Do or cause to be done all things
necessary to preserve and keep in full force and effect their existence and all
material rights and franchises, and maintain their licenses or qualifications to
do business as foreign corporations and good standing in each jurisdiction in
which their ownership or lease of property or the nature of their business makes
such license or qualification necessary except where the failure to so qualify
would not have a Material Adverse Effect.
IX.4. Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of their
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants determined on a
consolidated basis have been established unless and until any Lien resulting
therefrom attaches to any of their property and becomes enforceable against any
of their creditors.
IX.5. Insurance. (a) Keep all of their insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated,
(b) maintain general public liability insurance at all times with responsible
insurance carriers against liability on account of damage to persons and
property and (c) maintain insurance under all applicable workers' compensation
laws (or in the alternative, maintain required reserves if self-insured for
workers' compensation purposes) such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions providing no less
coverages than are maintained by similar businesses that are similarly situated,
in any manner. such insurance policies to be in form reasonably satisfactory to
the Agent. Each of the policies of insurance described in this Section 9.5
hereof shall provide that the Agent shall be named as loss payee or additional
insured, as applicable, and that the insurer shall give the Agent not less than
thirty (30) days' prior written notice before any such policy shall be
terminated, lapse or be altered
IX.6. True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of their dealings and transactions,
and set up on their books such reserves as may be required by GAAP with respect
to doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
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IX.7. Right of Inspection. Permit any Person designated by any Lender
or the Agent to visit and inspect any of the properties, corporate books and
financial reports of the Borrower or any of its Subsidiaries and to discuss
their affairs, finances and accounts with their principal officers and
independent certified public accountants, all at reasonable times, at reasonable
intervals and with reasonable prior notice.
IX.8. Observe all Laws. Conform to and duly observe in all respects all
laws, rules and regulations and all other valid requirements of any Governmental
Authority with respect to the conduct of their business where the failure to
observe such laws, rules, regulations or other requirements could have a
Material Adverse Effect.
IX.9. Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 9.2 through 9.8 inclusive.
IX.10. Officer's Knowledge of Default. Upon any officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any of its Subsidiaries to any Lender, or
any event, development or occurrence which could reasonably be expected to have
a Material Adverse Effect, cause such officer or an Authorized Representative to
promptly notify the Agent of the nature thereof, the period of existence
thereof, and what action the Borrower or such Subsidiary proposes to take with
respect thereto.
IX.11. Suits or Other Proceedings. Upon any officer of the Borrower
obtaining knowledge of (a) any action or proceeding against the Borrower or any
Subsidiary by any Governmental Authority the outcome of which could reasonably
be expected to have a Material Adverse Effect or (b) any litigation or other
proceedings being instituted against the Borrower or any Subsidiary, or any
attachment, levy, execution or other process being instituted against any assets
of the Borrower or any Subsidiary, in an aggregate amount in respect of all such
proceedings and processes greater than $1,000,000 not otherwise covered by
insurance, in each case promptly deliver to the Agent written notice thereof
stating the nature and status of such litigation, dispute, proceeding, levy,
execution or other process.
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IX.12. Notice of Discharge of Hazardous Material or Environmental
Complaint. Promptly provide to the Agent true, accurate and complete copies of
any and all letters, notices, complaints, orders, directives, claims, or
citations received by the Borrower or any Subsidiary relating to any (a)
violation or alleged violation by the Borrower or any Subsidiary of any
applicable Environmental Laws; (b) release or threatened release into the
environment by the Borrower or any Subsidiary, or by any Person handling,
transporting or disposing of any Hazardous Material on behalf of the Borrower or
any Subsidiary, or at any facility or property owned or leased or operated by
the Borrower or a Subsidiary, of any Hazardous Material, except where occurring
legally; or (c) liability or alleged liability of the Borrower or any Subsidiary
for the costs of cleaning up, removing, remediating or responding to a release
of Hazardous Materials.
IX.13. Environmental Compliance. If the Borrower or any Subsidiary
shall receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any Environmental Law
or is liable for the costs of cleaning up, removing, remediating or responding
to a release of Hazardous Materials, the Borrower shall, within the time period
permitted and to the extent required by the applicable Environmental Law or the
Governmental Authority responsible for enforcing such Environmental Law, remove
or remedy, or cause the applicable Subsidiary to remove or remedy, such
violation or release or satisfy such liability unless, and only during the
period that, the applicability of the Environmental Law, the fact of such
violation or liability or what is required to remove or remedy such violation is
being contested by the Borrower or the applicable Subsidiary by appropriate
proceedings diligently conducted and all reserves with respect thereto as may be
required under GAAP, if any, have been made.
IX.14. Indemnification. The Borrower hereby agrees to defend, indemnify
and hold the Agent and the Lenders, and their respective officers, directors,
employees and agents, harmless from and against any and all claims, losses,
penalties, liabilities, damages and expenses (including, without limitation,
assessment and cleanup costs and reasonable attorneys', consultants' and other
experts' fees and disbursements) arising directly or indirectly from, out of or
by reason of (a) the violation of any Environmental Law by the Borrower or any
Subsidiary or with respect to any property owned, operated or leased by the
Borrower or any Subsidiary or (b) the handling, storage, treatment, emission or
disposal of any Hazardous Material by or on behalf of the Borrower or any
Subsidiary on or with respect to property owned or leased or operated by the
Borrower or any Subsidiary. The provisions of this Section 9.14 shall survive
repayment of the Obligations, the occurrence of the Facility Termination Date
and expiration or termination of this Agreement.
IX.15. Further Assurances. At the Borrower's cost and expense upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
agreements, financing and continuation statements, and do and cause to be done
such further acts that may be reasonably necessary or advisable in the
reasonable opinion of the Agent to carry out more effectively the provisions and
purposes of this Agreement and the other Loan Documents.
IX.16. Employee Benefits Plans. With reasonable promptness, and in any
event within thirty (30) days, the Borrower will give notice of and/or deliver
to Agent copies of (a) the establishment of any new Employee Benefit Plan, (b)
the commencement of contributions to any Pension Plan or Multiemployer Plan to
which the Borrower or any of its ERISA Affiliates was not previously
contributing, (c) any material increase in the benefits of any existing Employee
Benefit Plan, (d) each funding waiver request filed with respect to any Pension
Plan and all communications received or sent by the Borrower or any ERISA
Affiliate with respect to such request and (e) the failure of the Borrower or
any ERISA Affiliate to make a required installment or payment under Section 302
of ERISA or Section 412 of the Code or any Foreign Benefit Law (in the case of
an Employee Benefit Plan regulated by any Foreign Benefit Law) by the due date.
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IX.17. Termination Events. Promptly and in any event within ten (10)
days of becoming aware of the occurrence of or forthcoming occurrence of any (a)
Termination Event or (b) "prohibited transaction," as such term is defined in
Section 406 of ERISA or Section 4975 of the Code, in connection with any Pension
Plan or any trust created thereunder, the Borrower will deliver to Agent a
notice specifying the nature thereof, what action the Borrower has taken, is
taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the Internal Revenue Service, the Department of Labor or
the PBGC with respect thereto.
IX.18. ERISA Notices. With reasonable promptness but in any event
within ten (10) days for purposes of clauses (a), (b) and (c), the Borrower will
deliver to the Agent copies of (a) any favorable or unfavorable determination
letter from the Internal Revenue Service regarding the qualification of an
Employee Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower or any ERISA Affiliate of the PBGC's or any Governmental
Authority's intent to terminate any Pension Plan or to have a trustee appointed
to administer any Pension Plan, (c) each Schedule B (Actuarial Information) to
the annual report (Form 5500 Series) filed by the Borrower or any ERISA
Affiliate with the Internal Revenue Service with respect to each Pension Plan
and (d) all notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of withdrawal
liability pursuant to Section 4202 of ERISA. The Borrower will notify the Agent
in writing within ten (10) Business Days of the Borrower obtaining knowledge or
reason to know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA.
IX.19. Continued Operations. Continue at all times (a) to conduct its
business and engage principally in the Core Business and (b) to preserve,
protect and maintain free from Liens (other than Permitted Liens or as otherwise
permitted under the Loan Documents) all Collateral.
IX.20. Use of Proceeds. Use the proceeds of the Loans solely for the
purposes specified in Sections 2.11 or 3.12 hereof.
IX.21. New Subsidiaries; Minority Interests.
(a) In the event of the acquisition or creation of any
Subsidiary or Control Subsidiary (a "New Subsidiary"), cause to be
delivered to the Agent for the benefit of the Lenders a Stock Pledge
Agreement with respect to the Pledged Stock of such New Subsidiary
substantially in the form of Exhibit G hereto within thirty (30)
Business Days of the acquisition or creation of a Subsidiary; provided,
however, that if such New Subsidiary is a Foreign Subsidiary, such
pledge of capital stock shall be limited to 65% of the outstanding
voting stock of such New Subsidiary and shall only be required if it is
a Direct Foreign Subsidiary or a Direct Foreign Control Subsidiary;
(b) In the event of the acquisition or creation of any
Domestic Subsidiary, cause to be delivered to the Agent for the benefit
of the Lenders each of the following
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indicated to be delivered by such Subsidiary within thirty (30)
Business Days of the acquisition or creation of such Subsidiary:
(i) a Guaranty executed by such Subsidiary,
substantially in the form of Exhibit J hereto;
(ii) a Security Agreement executed by such
Subsidiary, substantially in the form of Exhibit H hereto;
(iii) if such Subsidiary has any material leased
locations, a Landlord Waiver in the form of Exhibit M hereto;
(iv) if such Subsidiary owns any real property, a
Mortgage executed by such Subsidiary, substantially in the
form of Exhibit O hereto;
(v) if such Subsidiary owns any Intellectual
Property, an Intellectual Property Security Agreement,
executed by such Subsidiary, substantially in the form of
Exhibit I hereto;
(c) In the event of the acquisition or creation of any
Subsidiary subject to the provisions of clauses (a) or (b) above, cause
to be delivered to the Agent for the benefit of the Lenders each of the
following within the time periods indicated therein:
(i) an opinion of counsel to such Subsidiary dated as
of the date of delivery of the other documents required to be
delivered pursuant to this Section 9.21 and addressed to the
Agent and the Lenders, in form and substance identical to the
opinion of counsel delivered pursuant to Section 7.1 hereof on
the Closing Date with respect to any Guarantor and the Pledged
Stock; and
(ii) current copies of the Organizational Documents
and Operating Documents of such Subsidiary, minutes of duly
called and conducted meetings (or duly effected consent
actions) of the Board of Directors, or appropriate committees
thereof (and, if required by such Organizational Documents or
Operating Documents or by applicable laws, of the
shareholders), of such Subsidiary authorizing the actions and
the execution and delivery and performance of such Guaranty,
Security Agreement, Stock Pledge Agreement, Intellectual
Property Security Agreement or other agreement required under
this Section 9.21 and evidence satisfactory to the Agent
(confirmation of the receipt of which will be provided by the
Agent to the Lenders) that such Subsidiary is Solvent as of
such date after giving effect to such Guaranty, Security
Agreement, Stock Pledge Agreement, and, if applicable,
Intellectual Property Security Agreement.
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(d) In the event the Borrower or any Domestic Subsidiary
creates or acquires any material minority investment in any Person,
cause to be delivered to the Agent for the benefit of the Lenders (A) a
Stock Pledge Agreement with respect to the equity interests of such
Person owned by the Borrower or such Domestic Subsidiary (subject to
the 65% limitation on pledging shares of Foreign Subsidiaries contained
herein) substantially in the form of Exhibit G hereto and (B) an
opinion of counsel dated as of the date of delivery of the other
documents required to be delivered pursuant to this Section 9.21 and
addressed to the Agent and the Lenders, in form and substance identical
to the opinion of counsel delivered pursuant to Section 7.1 hereof on
the Closing Date with respect to the Pledged Stock, all within thirty
(30) Business Days of the acquisition or creation of such investment.
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ARTICLE X
Negative Covenants
Until the occurrence of the Facility Termination Date, unless the
Required Lenders shall otherwise consent in writing, the Borrower will not, nor
will it permit any Subsidiary to:
X.1. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness of the Borrower and its Subsidiaries determined on a consolidated
basis, howsoever evidenced, except the following (collectively, the "Permitted
Indebtedness"):
(a) Indebtedness set forth in Schedule 8.6 hereto and
incorporated herein by reference and any extension, renewal or
refinancing thereof that does not increase the principal amount thereof
or the interest rate payable thereon from that existing immediately
prior to such extension, renewal or refinancing; provided, none of the
instruments and agreements evidencing or governing such Indebtedness
shall be amended, modified or supplemented after the Closing Date to
change any terms of subordination, repayment or rights of conversion,
put, exchange or other rights from such terms and rights as in effect
on the Closing Date;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) Indebtedness evidenced by the Subordinated Notes;
(d) Indebtedness consisting of Hedging Obligations not
prohibited under Section 10.9 hereof;
(e) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(f) (i) purchase money Indebtedness and (ii) Indebtedness
incurred with respect to financing of Capital Expenditures,
collectively under both clause (i) and (ii) not to exceed an aggregate
outstanding amount at any time of $5,000,000;
(g) Indebtedness of any Guarantor owing to the Borrower or
another Guarantor and Indebtedness of the Borrower owing to any
Guarantor;
(h) Indebtedness consisting of guaranties by the Borrower of
Indebtedness permitted under Section 10.1(i) below;
(i) additional Indebtedness incurred by any Foreign Subsidiary
in an aggregate outstanding principal amount at any time not to exceed
the difference of (A) $80,000,000 less (B) the amount of any
investments permitted under Section 10.3(f) hereof.
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X.2. Liens. Incur, create or permit to exist any pledge, Lien, charge
or other encumbrance of any nature whatsoever with respect to any property or
assets now owned or hereafter acquired by the Borrower or any of its
Subsidiaries, including without limitation any capital stock of the Borrower or
any of its Subsidiaries, other than any of the following (collectively, the
"Permitted Liens"):
(a) Liens (i) in favor of the Agent for the benefit of the
Lenders under the Loan Documents and (ii)existing as of the date hereof
and as set forth in Schedule 8.7 attached hereto, provided, however,
that any such Lien provided for in clause (ii) hereof that is released
after the date hereof may not thereafter re-attach or otherwise become
permitted by this Section 10.2(a);
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
(c) Liens in respect of purchase money Indebtedness permitted
to be incurred pursuant to Section 10.1(f)(i) hereof in connection with
the acquisition of certain tangible property; provided that (a) the
original principal balance of the Indebtedness secured by such Lien
constitutes not less than 80% nor more than 100% of the purchase price
of the property acquired and (B) such Lien extends only to the property
acquired with the proceeds of the Indebtedness so secured;
(d) statutory Liens of landlords who are not subject to a
Landlord Waiver and Liens of carriers, warehousemen, mechanics,
materialmen and other Liens imposed by law or created in the ordinary
course of business and in existence less than 90 days from the date of
creation thereof for amounts not yet due or which are being contested
in good faith by appropriate proceedings diligently conducted and with
respect to which adequate reserves or other appropriate provisions are
being maintained in accordance with GAAP;
(e) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(f) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not
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recorded), which do not interfere with the ordinary conduct of the
business of the Borrower or any Subsidiary and do not impair the use of
the property to which they attach to the extent that such interference
or impairment would reasonably be expected to have a Material Adverse
Effect;
(g) Liens on real property securing Indebtedness permitted
under Section 10.1(a), (b), (f) or (i) hereof (subject to compliance
with subsection (c) above in connection with purchase money
Indebtedness); and
(h) Liens on accounts receivable subject to an Approved
Receivables Factoring Program.
X.3. Investments; Acquisitions. Make any Acquisition or otherwise
purchase, own, invest in or otherwise acquire, directly or indirectly, any stock
or other securities, or make or permit to exist any interest whatsoever in any
other Person or permit to exist any loans or advances to any Person, except that
Borrower and its Subsidiaries may:
(a) invest in Eligible Securities;
(b) maintain investments, loans and advances existing as of
the date hereof and as set forth in Schedule 8.4 hereto;
(c) accept and maintain accounts receivable arising and trade
credit granted in the ordinary course of business and retain any
securities received in satisfaction or partial satisfaction thereof in
connection with accounts of financially troubled Persons to the extent
reasonably necessary in order to prevent or limit loss;
(d) make and maintain loans and advances to and investments in
Subsidiaries which are Guarantors;
(e) consummate Permitted Acquisitions and mergers permitted
under Section 10.4(a) hereof;
(f) make and maintain loans, advances and investments in
Foreign Subsidiaries in an aggregate principal amount at any time
outstanding not to exceed $40,000,000.
(g) make and maintain other loans, advances and investments in
an aggregate principal amount at any time outstanding not to exceed
$10,000,000.
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X.4. Merger or Transfer of Assets.
(a) Consolidate with or merge into any other Person, or permit
any other Person to merge into it; provided, however, (i) any
Subsidiary may merge or transfer all or any part of its assets into or
consolidate with the Borrower or any Domestic Subsidiary, in each case,
provided the requirements of Article V and Section 9.21 hereof are
complied with as of the effective date of the consummation of such
merger, (ii) any Subsidiary may merge into another Person that is not a
Subsidiary prior to such merger whereby such other Person is the
surviving corporation provided the requirements of Article V and
Section 9.21 hereof are complied with and such other Person becomes a
Subsidiary as of the effective date of the consummation of such merger
and that such merger would be a Permitted Acquisition but for the
Subsidiary not being the surviving corporation, (iii) any Direct
Foreign Subsidiary may merge with or into any other Direct Foreign
Subsidiary provided the requirements of Article VI and Section 9.21
hereof are complied with as of the effective date of the consummation
of such merger, (iv) any Foreign Subsidiary which is not a Direct
Foreign Subsidiary may merge with or into any other Foreign Subsidiary
provided the requirements of Article VI and Section 9.21 hereof are
complied with as of the effective date of the consummation of such
merger and (v) the Borrower or any Subsidiary may make a Permitted
Acquisition.
(b) Sell, lease, transfer or otherwise dispose of any assets
other than (i) dispositions of inventory in the ordinary course of
business, (ii) dispositions of equipment which, in the aggregate during
any Fiscal Year, have a fair market value or book value, whichever is
less, of not more than three percent (3%) of Property, Plant and
Equipment and Capitalized Software as shown on the consolidated balance
sheet of the Borrower and its Subsidiaries adjusted to provide for the
HPG Acquisition which is not replaced by equipment having at least
equivalent value, (iii) dispositions of equipment which is replaced
with equipment of like kind, function and value, provided the
replacement equipment shall be acquired prior to or substantially
contemporaneously with any disposition of the Equipment that is to be
replaced, and the replacement equipment shall be free and clear of
Liens other than Permitted Liens, (iv) dispositions of other assets
which, in the aggregate during any Fiscal Year, have a fair market
value or book value, whichever is less, of not more than one percent
(1%) of Consolidated Shareholders' Equity of Borrower and its
Subsidiaries adjusted to provide for the HPG Acquisition, (v) any
Equity Offering of authorized but unissued equity securities the Net
Proceeds of which are subject to the terms of Section 2.6(b) hereof
except as otherwise provided therein and (vi) dispositions of accounts
receivable pursuant to an Approved Receivables Factoring Program.
X.5. Transactions with Affiliates. Other than transactions permitted
under Sections 10.3 and 10.4 hereof, enter into any transaction after the
Closing Date, including, without limitation, the purchase, sale, lease or
exchange of property, real or personal, or the rendering of any service, with
any Affiliate of the Borrower, except (a) that such Persons may render services
or sell inventory to the Borrower or its Subsidiaries for compensation at the
same rates generally paid by Persons engaged in the same or similar businesses
for the same or similar services, (b) that the Borrower or any Subsidiary may
render services or sell inventory to such Persons for
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compensation at the same rates generally charged by the Borrower or such
Subsidiary and (c) in the ordinary course of and pursuant to the reasonable
requirements of the Borrower's (or any Subsidiary's) business consistent with
past practice of the Borrower and its Subsidiaries and upon fair and reasonable
terms no less favorable to the Borrower (or any Subsidiary) than would be
obtained in a comparable arm's-length transaction with a Person not an
Affiliate.
X.6. Compliance with ERISA. With respect to any Pension Plan, Employee
Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability to the Borrower or any ERISA Affiliate in excess
of $500,000;
(b) permit the present value of all benefit liabilities under
all Pension Plans (except as provided below) to exceed the current
value of the assets of such Pension Plans allocable to such benefit
liabilities (the "Excess Liabilities Value") by more than $500,000;
(c) permit any accumulated funding deficiency in excess of
$500,000 (as defined in Section 302 of ERISA and Section 412 of the
Code) with respect to any Pension Plan, whether or not waived;
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto which results in or is likely to
result in a liability in excess of $500,000; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(i) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan which liability or increase, individually or together with all
similar liabilities and increases, is in excess of $500,000; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Law and all other applicable laws
and the regulations and interpretations thereof.
X.7. Fiscal Year. Change the Borrower's Fiscal Year.
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X.8. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with the merger or
consolidation of Subsidiaries into each other or into a Borrower permitted
pursuant to Section 10.4 hereof.
X.9. Hedging Obligations. Incur any Hedging Obligations or enter into
any agreements, arrangements, devices or instruments relating to Hedging
Obligations, except for Hedging Obligations in an aggregate amount of less than
$100,000,000 entered into in the ordinary course of business which are not for
speculative or investment purposes.
X.10. Dividends, Redemptions and Other Payments. (a) Declare or pay any
cash dividends or make any other payment or distribution on account of its
capital stock (other than dividends payable in the ordinary course of business
solely in Common Stock) on any shares of stock of any class of the Borrower, now
or hereafter outstanding, or (b) purchase, redeem (whether mandatory or optional
redemption) or otherwise retire any such shares or interests in consideration of
cash or any debt instrument (whether or not subordinated) or shares of capital
stock issued by any Subsidiary of the Borrower, or apply or set apart any of
their assets therefor or make any other distribution (by redemption of capital
or otherwise) in respect of any such shares, or agree to do any of the
foregoing, other than (i) dividends payable by any Subsidiary to another
Subsidiary or to the Borrower and (ii) the purchase or redemption of capital
stock of employees pursuant to an Approved Stock Option Plan so long as (A) the
aggregate amount paid in connection with such purchase or redemption during any
twelve month period does not exceed $500,000 and (B) no Default or an Event of
Default exist after giving effect to such purchase or redemption.
X.11. Subordinated Debt.
(a) Pay or prepay, or set aside any cash or other assets to
pay or prepay (i) all or any part of the principal amount owing with
respect of Subordinated Notes, whether or not permitted under the terms
of the Indenture, or (ii) any interest, premium or other amounts in
respect to the Subordinated Notes other than in accordance with the
terms of the Indenture.
(b) Materially amend the provisions of or terminate (other
than in connection with the full and final payment of the Subordinated
Notes) the Junior Financing Documents without the prior written consent
of the Required Lenders.
X.12. Defaults Under Other Agreements. Permit any landlord, mortgagee,
trustee under deed of trust or lienholder to lawfully declare a default under
any lease, mortgage, deed of trust or lien instrument on real estate owned or
leased by the Borrower or any Guarantor or permit any landlord to lawfully
terminate, prior to the expiration of its term, any leasehold interest of the
Borrower or any Guarantor, if such default or termination, individually or
collectively, would reasonably be expected to result in a Material Adverse
Effect.
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X.13. Compensation; Reimbursement of Expenses.
(a) Pay any salary, fees, and other direct and indirect
remuneration and compensation to any of its directors and executive
officers in an amount in excess of those amounts paid to directors and
executive officers of comparable companies engaged in the same general
type of business and in similar financial condition.
(b) Reimburse any stockholder, officer, director, employee or
agent of the Borrower or any Guarantor for any expenses incurred by
such Person other than reasonable expenses incurred for or on behalf of
the Borrower or any Guarantor in the ordinary course of business.
X.14. Change in Accountants. Change its independent public accountants
to any Person other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Price Waterhouse, L.L.P., Deloitte
& Touche, L.L.P., KPMG Peat Marwick, L.L.P., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., L.L.P.,
Coopers & ▇▇▇▇▇▇▇, L.L.P. or Ernst & Young, L.L.P., or any successor to any
thereof as a result of their combination.
X.15. Limitations on Sales and Leasebacks. Enter into any arrangement
with any Person providing for the leasing by the Borrower or any Guarantor of
real or personal property which has been or is to be sold or transferred by the
Borrower or any Guarantor to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or any Guarantor.
X.16. Negative Pledge Clauses. Enter into any agreement other than this
Agreement and the other Loan Documents and the Junior Financing Documents which
prohibits or limits the ability of any of the Borrower or any Guarantor to
create, incur, assume or suffer to exist any Lien, security interest or
encumbrance upon any of its property, assets or revenues, whether now owned or
hereafter acquired.
X.17. Intellectual Property. Cause or permit any of the licenses,
trademarks, patents, copyrights, or other Intellectual Property of the Borrower
or its Subsidiaries to be sub-licensed, assigned or transferred or subject to
any encumbrance or interest, other than in favor of the Agent for the benefit of
the Lenders hereunder or, with respect to sub-licenses only, to manufacturers
and distributors of Inventory in the ordinary course of business as currently
conducted.
X.18. Licenses. Grant, establish, create or permit to exist any license
of any of the Intellectual Property to any Person except for (i) such licenses
granted for the limited purpose of conducting sales or marketing promotions in
the ordinary course of business of existing or new products for a reasonable,
limited time period, (ii) such licenses approved by the Required Lenders in
writing prior to the granting thereof within 30 days after request therefor,
such approval not to be unreasonably withheld, and (iii) such licenses granted
to any Material Subsidiary party to the Intellectual Property Security Agreement
which has delivered an appropriate Intellectual Property Assignment executed in
blank with respect to such license.
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X.19. Amendment of Documents. Materially amend, supplement or replace,
or waive any of the material terms or provisions of, (a) any Material Contract,
(b) the Transaction Documents, (c) the Junior Financing Documents or (d) the
Organizational Documents or Operating Documents of the Borrower without the
prior written consent of the Agent and the Required Lenders.
X.20. Limitations on Certain Restrictive Covenants. Neither the
Borrower nor any Subsidiary shall enter into, or permit to exist, with any
Person any agreement (other than this Agreement) which prohibits or limits the
ability of any Subsidiary to declare or pay any dividend or make any loan to or
investment in the Borrower or any other owner of such Subsidiary.
X.21. Limitations on Business Activities. The Borrower will not conduct
any business or engage in any activity or hold any assets other than holding the
shares of capital stock of its Subsidiaries and administrative activities
directly related thereto and other activities contemplated under this Credit
Agreement.
X.22. Financial Covenants.
(a) Consolidated Net Worth. Permit at any time Consolidated
Net Worth to be less than 90% of Consolidated Net Worth at June 30,
1998, such amount to be increased as at the first day of each fiscal
quarter, beginning with the fiscal quarter beginning October 1, 1998,
by an amount equal to (a) seventy-five percent (75%) of Consolidated
Net Income during the immediately preceding fiscal quarter, plus (b)
one hundred percent (100%) of the Net Proceeds of any Equity Offering
consummated during the immediately preceding fiscal quarter; provided,
however, in no event shall the Consolidated Net Worth requirement be
decreased as a result of a net loss of the Borrower and its
Subsidiaries (i.e., negative Consolidated Net Income) for any fiscal
quarter, except that Consolidated Net Worth may be reduced by the
actual amount of non-cash charges incurred in connection with the HPG
Acquisition up to but not exceeding $25,000,000. Any increase
calculated pursuant hereto shall be determined based upon financial
statements delivered in accordance with Section 9.1(a) and (b) hereof;
provided, however such increase shall be deemed effective as of the
first day of the fiscal quarter in which such financial statements are
delivered or required to be delivered, if earlier.
(b) Consolidated Fixed Charge Coverage Ratio. Permit
Consolidated Fixed Charge Coverage Ratio to be less than the ratio
indicated below at any time during the period indicated:
Closing Date through
third fiscal quarter 1999 1.00 to 1.00
Fourth fiscal quarter 1999
through third fiscal quarter 2000 1.25 to 1.00
Fourth fiscal quarter 2000
and thereafter 1.50 to 1.00
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(c) Consolidated Interest Coverage Ratio. Permit Consolidated
Interest Coverage Ratio to be less than the ratio indicated below at
any time during the period indicated:
Closing Date through
third fiscal quarter 1999 2.00 to 1.00
Fourth fiscal quarter 1999
through third fiscal quarter 2000 2.50 to 1.00
Fourth fiscal quarter 2000
and thereafter 3.00 to 1.00
(d) Consolidated Leverage Ratio. Permit Consolidated Leverage
Ratio to be greater than the ratio indicated below at any time during
the period indicated:
Second fiscal quarter 1999 5.50 to 1.00
Third fiscal quarter 1999 6.00 to 1.00
Fourth fiscal quarter 1999
through first fiscal quarter 2000 4.00 to 1.00
Second fiscal quarter 2000
Through third fiscal quarter 2000 4.50 to 1.00
Fourth fiscal quarter 2000
through second fiscal quarter 2001 3.00 to 1.00
Third fiscal quarter 2001 3.50 to 1.00
Fourth fiscal quarter 2001
and thereafter 3.00 to 1.00
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(e) Consolidated EBITDA. Permit Consolidated EBITDA to be less
than the amount indicated below at the date indicated:
Third fiscal quarter end 1998 $23,000,000
Fourth fiscal quarter end 1998 $54,000,000
First fiscal quarter end 1999 $60,000,000
(f) Total Indebtedness. Permit the aggregate amount of
Indebtedness owing by the Borrower and its Subsidiaries on a
consolidated basis, less the outstanding amount of the Subordinated
Notes, to exceed $335,000,000 at any time.
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ARTICLE XI
Events of Default and Acceleration
XI.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II, Article III or Article IV, at
maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders, the Issuing Bank or the Agent on the date on which the same
shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Sections 9.7, 9.10, 9.20, 9.21 and Article
X; or
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or an
officer of the Borrower becomes aware of such default, or if a default
shall be made in the performance or observance of, or shall occur
under, any covenant, agreement or provision contained in any of the
other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than in accordance with its terms in the absence of
default or with the consent of the Agent and the Lenders), or if
without the written consent of the Lenders, this Agreement or any other
Loan Document shall be disaffirmed or shall terminate, be terminable or
be terminated or become void or unenforceable for any reason whatsoever
(other than in accordance with its terms in the absence of default or
with the consent of the Agent and the Lenders); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness (other than the Loans and other
Obligations) of the Borrower or any of its Subsidiaries in an
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amount not less than $500,000 in the aggregate outstanding, or (ii) a
default, which is not waived, in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness may have
been issued, created, assumed, guaranteed or secured by the Borrower or
any of their Subsidiaries, or (iii) any other event of default as
specified in any agreement or instrument under or pursuant to which any
such Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower or any of its Subsidiaries, and such default or
event of default shall continue for more than the period of grace, if
any, therein specified, or such default or event of default shall
permit the holder of any such Indebtedness (or any agent or trustee
acting on behalf of one or more holders) to accelerate the maturity
thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any of its Subsidiaries pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given; or
(g) if the Borrower or any of its Subsidiaries shall be unable
to pay its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any of its Subsidiaries or
of the whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any of its Subsidiaries seeking liquidation, reorganization or
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state, which petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid of debtors,
a court of competent jurisdiction shall assume custody or control of
the Borrower or any of its Subsidiaries or of the whole or any
substantial part of any of its properties, which control is not
relinquished within sixty (60) days; or if there is commenced against
the Borrower or any of its Subsidiaries any proceeding or petition
seeking reorganization, arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state which proceeding or petition remains
undismissed for a period of sixty (60) days; or if the Borrower or any
of its Subsidiaries takes any action to indicate its consent to or
approval of any such proceeding or petition; or
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(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $1,000,000 is rendered against the Borrower
or any of its Subsidiaries, or (ii) there is any attachment, injunction
or execution against any of the Borrower's or its Subsidiaries' or
properties for any amount in excess of $1,000,000 in the aggregate; and
such judgment, attachment, injunction or execution remains unpaid,
unstayed, undischarged, unbonded or undismissed for a period of thirty
(30) days; or
(j) if the Borrower or any of its Subsidiaries shall suspend
all or any part of its operations material to the conduct of the
business of the Borrower and its Subsidiaries taken as a whole; or
(k) if the Borrower merges into another Person or dissolves;
(l) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents; or
(m) if any Event of Default as defined in any of the Junior
Financing Documents shall occur; or
(n) if any Person or group of Persons acting in concert, other
than the owners of more than 10% of outstanding securities of the
Borrower as of Closing Date having voting rights in the election of
directors, shall own or control, directly or indirectly, more than 30%
of the outstanding securities of the Borrower having voting rights in
the election of directors, in each case to be determined on a fully
diluted basis and taking into account any outstanding securities or
contract rights exercisable, exchangeable or convertible into equity
interests; or
(o) if (i) the Borrower or any Subsidiary shall fail (A) to
implement or complete any material action or process constituting a
portion of the Year 2000 Compliance Plan on the date set forth for
implementation or completion of such action or process and such failure
shall continue for a period of 30 or more days or (B) to be Year 2000
Compliant on or after 90 days prior to year 2000; or (ii) any Related
Business Party (A) shall notify the Borrower that it will not or
reasonably does not expect to be Year 2000 Compliant prior to January
1, 2000 or (B) shall fail to be Year 2000 Compliant on or after 90 days
prior to January 1, 2000; or
(p) if the Kmart Agreement shall be terminated or any
amendment thereof is entered into by the parties thereto without the
consent of the Agent and such termination or amendment has or could
reasonably be expected to have a Material Adverse Effect; or
(q) if the report of the field examination of the assets of
the Borrower is not completed with results satisfactory to the Agent
within 90 days after the Closing Date; or
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(r) if the Black & ▇▇▇▇▇▇ License Agreement shall (i) be
modified in any material respect having an adverse effect on the
Borrower without the written consent of the Required Lenders or (ii)
terminate, or the license granted thereunder shall terminate, for any
reason prior to the expiration of the Initial Term (as defined in the
Black & ▇▇▇▇▇▇ License Agreement);
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent, with the consent of the
Required Lenders, may, and at the direction of the
Required Lenders shall, declare any obligation of the
Lenders and the Issuing Bank to make further
Revolving Loans and Swing Line Loans or to issue
additional Letters of Credit terminated, whereupon
the obligation of each Lender to make further
Revolving Loans, of NationsBank to make further Swing
Line Loans, and of the Issuing Bank to issue
additional Letters of Credit, hereunder shall
terminate immediately, and (ii) the Agent shall at
the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all
of the Obligations to be immediately due and payable,
and the same, including all interest accrued thereon
and all other obligations of the Borrower to the
Agent and the Lenders, shall forthwith become
immediately due and payable without presentment,
demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived,
anything contained herein or in any instrument
evidencing the Obligations to the contrary
notwithstanding; provided, however, that
notwithstanding the above, if there shall occur an
Event of Default under clause (g) or (h) above, then
the obligation of the Lenders to make Revolving
Loans, of NationsBank to make Swing Line Loans, and
of the Issuing Bank to issue Letters of Credit
hereunder shall automatically terminate and any and
all of the Obligations shall be immediately due and
payable without the necessity of any action by the
Agent or the Required Lenders or notice to the Agent
or the Lenders;
(B) the Borrower shall, upon demand of the Agent
or the Required Lenders, deposit cash with the Agent
in an amount equal to the amount of any Letter of
Credit Outstandings, as collateral security for the
repayment of any future drawings or payments under
such Letters of Credit, and such amounts shall be
held by the Agent pursuant to the terms of the LC
Account Agreement; and
(C) the Agent and each of the Lenders shall have
all of the rights and remedies available under the
Loan Documents or under any applicable law.
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XI.2. Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
XI.3. Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
XI.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
XI.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
this Article XI, all payments received by the Agent hereunder, in respect of any
principal of or interest on the Obligations or any other amounts payable by the
Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders pursuant to Sections 3.10, 4.3,
4.4 and 13.5 hereof;
(b) amounts due to the Agent pursuant to Section 12.8 hereof;
(c) payments of interest on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(d) payments of principal of Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to Section 11.1 hereof;
(f) amounts due to the Agent, the Issuing Bank and/or Lenders
pursuant to Sections 4.2(g) and 12.8 hereof;
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(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders;
(h) payments of amount due to Lenders or their Affiliates
under any Swap Agreement;
(i) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XII
The Agent
XII.1. Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. Except as expressly set forth in this Agreement, the Agent (which term
as used in this sentence and in Section 12.5 hereof and the first sentence of
Section 12.6 hereof shall include its affiliates and its own and its affiliates'
officers, directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Agreement and shall
not be a trustee or fiduciary for any Lender; (b) shall not be responsible to
the Lenders for any recital, statement, representation, or warranty (whether
written or oral) made in or in connection with any Loan Document or any
certificate or other document referred to or provided for in, or received by any
of them under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or any other
document referred to or provided for therein or for any failure by any Loan
Party or any other Person to perform any of its obligations thereunder; (c)
shall not be responsible for or have any duty to ascertain, inquire into, or
verify the performance or observance of any covenants or agreements by any Loan
Party or the satisfaction of any condition or to inspect the property (including
the books and records) of any Loan Party or any of its Subsidiaries or
affiliates; (d) shall not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document; and (e) shall not be responsible
for any action taken or omitted to be taken by it under or in connection with
any Loan Document, except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Each Lender hereby irrevocably designates
and appoints NationsBank as the Agent for the Lenders under this Agreement, and
each of the Lenders hereby irrevocably authorizes NationsBank 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 as are
expressly delegated to the Agent by the terms of this Agreement and such other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any of the
Lenders, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Agent.
XII.2. Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for any Loan Party), independent accountants, and other
experts selected by the Agent. The Agent may deem and treat the payee of any
Note as the holder
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thereof for all purposes hereof unless and until the Agent receives and accepts
an Assignment and Acceptance executed in accordance with Section 13.1 hereof. As
to any matters not expressly provided for by this Agreement, the Agent shall not
be required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding on all of the Lenders; provided, however, that the
Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to any Loan Document or applicable law or
unless 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 any such action.
XII.3. Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying 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 of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 12.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be 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) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of the Lenders.
XII.4. Rights as Lender. With respect to its Revolving Credit
Commitment and the Loans made by it, NationsBank (and any successor acting as
Agent) in its capacity as a Lender hereunder shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not acting as the Agent, and the term "Lender" or "Lenders" shall, unless the
context otherwise indicates, include the Agent in its individual capacity.
NationsBank (and any successor acting as Agent) and its affiliates may (without
having to account therefor to any Lender) accept deposits from, lend money to,
make investments in, provide services to, and generally engage in any kind of
lending, trust, or other business with any Credit Party or any of its
Subsidiaries or affiliates as if it were not acting as Agent, and NationsBank
(and any successor acting as Agent) and its affiliates may accept fees and other
consideration from any Credit Party or any of its Subsidiaries or affiliates for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
XII.5. Indemnification. The Lenders agree to indemnify the Agent (to
the extent not reimbursed under Section 13.5 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Commitments, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
attorneys' fees), or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent (including by any Lender)
in any way relating to or arising out of any Loan Document or the transactions
contemplated thereby or any action taken or omitted by the Agent under any Loan
Document; provided that no Lender shall be liable for any of the foregoing to
the extent they arise from the gross negligence or willful
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misconduct of the Person to be indemnified. Without limitation of the foregoing,
each Lender agrees to reimburse the Agent promptly upon demand for its ratable
share of any costs or expenses payable by the Borrower under Section 13.5
hereof, to the extent that the Agent is not promptly reimbursed for such costs
and expenses by the Borrower. The agreements contained in this Section shall
survive the Facility Termination Date and the expiration or termination of this
Agreement.
XII.6. Non-Reliance on Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Credit Parties and its Subsidiaries and decision to
enter into this Agreement and 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 analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
XII.7. Resignation of Agent. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower, such resignation being effective
upon acceptance by a successor Agent of appointment. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right to appoint a
successor Agent from the Lenders party hereto meeting the requirements set forth
herein. The Borrower shall have the right to approve such Agent so long as no
Default or Event of Default exist. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a commercial bank organized under the laws of the
United States of America having combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor, such successor shall thereupon succeed to and become vested with all
the rights, powers, discretion, privileges, and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Article XII shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Agent.
XII.8. Fees. The Borrower agrees to pay to the Agent, for its
individual account, an annual Agent's fee as from time to time agreed to by the
Borrower and Agent in writing.
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ARTICLE XIII
Miscellaneous
XIII.1. Assignments and Participations.
(a) Each Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Loans, its
Note, and its Commitments); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender, an Affiliate of a Lender, or Approved Fund or an
assignment of all of a Lender's rights and obligations under
this Agreement, any such partial assignment shall be in an
amount at least equal to $5,000,000 or an integral multiple of
$1,000,000 (or if less, the entire remaining amount of such
Lender's Revolving Credit Commitment, Term Loan A Commitment
or Term Loan B Commitment) in excess thereof;
(iii) each such assignment by a Lender with respect to
the Revolving Credit Facility shall be of a constant, and not
varying, percentage of all of its rights and obligations under
the Revolving Credit Facility, Letter of Credit Facility, Term
Loan A Facility and its Revolving Note and Term A Note ;
(iv) each assignment by a Lender with respect to the
Term Loan B Facility shall be a constant, and not varying,
percentage of all of its rights and obligations under the Term
Loan B Facility and the Term Note B;
(v) the parties to such assignment shall execute and
deliver to the Agent for its acceptance an Assignment and
Acceptance in the form of Exhibit B hereto, together with any
Note subject to such assignment and a processing fee of $3,500
(except for an assignment by a Lender of all of its interest
hereunder to an affiliate, as to which no such fee shall
apply).
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section, the assignor, the Agent and the
Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a
state thereof, it
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shall deliver to the Borrower and the Agent certification as to
exemption from deduction or withholding of Taxes in accordance with
Section 6.6 hereof.
(b) The Agent shall maintain at its address referred to in
Section 13.2 hereof a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Commitment 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 and
binding for all purposes, absent manifest error, and the 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 the Borrower or any
Lender at any reasonable time and from time to time upon reasonable
prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its
Commitment or its Loans); provided, however, that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, (iii) the participant shall be
entitled the benefit of the right of set-off contained in Section 13.3
hereof, and (iv) the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to its Loans
and its Notes and to approve any amendment, modification, or waiver of
any provision of this Agreement; provided, however, that consent of the
participant may be required for amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal
payment date or date fixed for the payment of interest on such Loans or
Notes, or extending or increasing its Commitment).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Note to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and
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participants (including prospective assignees and participants),
subject, however, to the provisions of Section 13.9 hereof.
XIII.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of receipt at such address, telefacsimile
number or telex number as may from time to time be specified by such party in
written notice to the other parties hereto or otherwise received), in the case
of notice by telegram, telefacsimile or telex, respectively (where the receipt
of such message is verified by return), or (iii) on the fifth Business Day after
the day on which mailed, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address, telex number or telefacsimile number, as appropriate,
set forth below or such other address or number as such party shall specify by
notice hereunder:
(a) if to the Borrower:
Windmere-Durable Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
NationsBank, National Association
NationsBank Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(c) if to the Lenders:
At the addresses set forth on the signature pages hereof
and on the signature page of each Assignment and
Acceptance;
(d) if to any other Credit Party, at the address set forth on
the signature page of the Facility Guaranty or Security Instrument
executed by such Credit Party, as the case may be.
XIII.3. Right of Set-off; Adjustments
(a) Upon the occurrence and during the continuance of any
Event of Default, each Lender (and each of its affiliates) is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its
affiliates) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender,
irrespective of whether such Lender shall have made any demand under
this Agreement or such Note and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however,
that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including,
without limitation, other rights of set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans owing to it, or
interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Loans owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price and
benefits returned, to the extent of such recovery, but without
interest. The Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this Section 13.3 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
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XIII.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
commitment hereunder or the Borrower has continuing obligations hereunder unless
otherwise provided herein. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include the successors and
permitted assigns of such party and all covenants, provisions and agreements by
or on behalf of the Borrower which are contained in the Loan Documents shall
inure to the benefit of the successors and permitted assigns of the Lenders or
any of them.
XIII.5. Expenses; Indemnification.
(a) The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the syndication of the
facilities and the preparation, execution, delivery, administration,
modification or amendment of this Agreement, the other Loan Documents
and the other documents to be delivered hereunder, including, without
limitation, the reasonable fees and expenses of counsel for the Agent
with respect thereto and with respect to advising the Agent as to its
rights and responsibilities under the Loan Documents. The Borrower
acknowledges that NationsBank and NMS on behalf of the Borrower will
cause a substantial portion of the Commitments to be acquired by other
financial institutions subsequent to the Closing Date. NationsBank, at
the request of the Borrower and in order to expedite the HPG
Acquisition, has agreed to provide all the Commitments at the Closing
Date. The Borrower agrees that during a period of up to 90 days
following the Closing Date one or more assignments of portions of the
Commitments will occur and that to the extent the Borrower has
outstanding Eurodollar Rate Loans the Borrower will likely incur
additional costs, fees and charges under Section 6.5 hereof. The
Borrower agrees to immediately reimburse the Agent and NationsBank for
any such costs, fees and charges. In addition, the Borrower agrees that
the incurrence of such costs, fees and charges shall not be the basis
for the Borrower withholding its consent or approval of any Person as
an Eligible Assignee. The Borrower further agrees to pay on demand all
costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses), in
connection with the enforcement (whether through negotiations, legal
proceedings, or otherwise) of the Loan Documents and the other
documents to be delivered hereunder.
(b) The Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their affiliates and their respective
officers, directors, employees, agents, and advisors (each, an
"Indemnified Party") from and against any and all claims, damages,
losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or
proceeding or preparation
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of defense in connection therewith) the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of the
proceeds of the Loans, except to the extent such claim, damage, loss,
liability, cost, or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from
such Indemnified Party's gross negligence or willful misconduct. In the
case of an investigation, litigation or other proceeding to which the
indemnity in this Section 13.5 applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding
is brought by the Borrower, its directors, shareholders or creditors or
an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower agrees that no
Indemnified Party shall have any liability (whether direct or indirect,
in contract or tort or otherwise) to it, any of its Subsidiaries, any
Guarantor, or any security holders or creditors thereof arising out of,
related to or in connection with the transactions contemplated herein,
except to the extent that such liability is found in a final
non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified party's gross negligence or willful
misconduct; provided, however, in no event shall any Indemnified Party
be liable for punitive, consequential, indirect or special damages, as
opposed to direct damages.
(c) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 13.5 shall survive the Facility
Termination Date and the expiration or termination of this Agreement.
XIII.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and the Required Lenders
(and, if Article XII or the rights or duties of the Agent are affected thereby,
by the Agent); provided that no such amendment or waiver shall, unless signed by
all the Lenders, (i) increase the Commitments of the Lenders, (ii) reduce the
principal of or rate of interest on any Loan or any fees or other amounts
payable hereunder, (iii) postpone any date fixed for the payment of any
scheduled installment of principal of or mandatory prepayment of or interest on
any Loan or any fees or other amounts payable hereunder or for termination of
any Commitment, or (iv) change the percentage of the Commitments or of the
unpaid principal amount of the Notes, or the definitions of "Net Proceeds" or
"Required Lenders" or the number of Lenders which shall be required for the
Lenders or any of them to take any action under this Section 13.6 or any other
provision of this Agreement or (v) release any material Guarantor or all or any
material portion of the Collateral other than as otherwise permitted herein or
(vi) modify or waive the terms of Sections 2.6, 2.10, 3.6, 6.1, 6.5, 11.5, 13.3
or 13.5 in any manner materially adverse to any Lender; and provided further
that no such amendment or waiver shall change the application of any payment of
Revolving Loans, Term Loan A or Term Loan B, unless signed by Lenders holding
more than 50% of the Total Revolving Credit Commitment, Total Term Loan A
Commitment or Total Term Loan B Commitment, as applicable.
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XIII.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
XIII.8. Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof (other than Obligations in
the nature of continuing indemnities or expense reimbursement obligations not
yet due and payable, which shall continue) or the Borrower has furnished the
Lenders and the Agent with an indemnification satisfactory to the Agent and each
Lender with respect thereto. All representations, warranties, covenants, waivers
and agreements contained herein shall survive termination hereof until payment
in full of the Obligations unless otherwise provided herein. Notwithstanding the
foregoing, if after receipt of any payment of all or any part of the
Obligations, any Lender is for any reason compelled to surrender such payment to
any Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason, this Agreement shall continue in full force and the Borrower shall be
liable to, and shall indemnify and hold the Agent or such Lender harmless for,
the amount of such payment surrendered until the Agent or such Lender shall have
been finally and irrevocably paid in full. The provisions of the foregoing
sentence shall be and remain effective notwithstanding any contrary action which
may have been taken by the Agent or the Lenders in reliance upon such payment,
and any such contrary action so taken shall be without prejudice to the Agent or
the Lenders' rights under this Agreement and shall be deemed to have been
conditioned upon such payment having become final and irrevocable.
XIII.9. Confidentiality. The Agent and each Lender (each, a "Lending
Party") agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Agreement that is marked confidential;
provided that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or any affiliate of any Lending
Party, or any officer, director, employee, agent, legal counsel or advisor of
any Lending Party or affiliate of any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit facility provided
herein, (c) as required by any law, rule, or regulation, (d) upon the order of
any court or administrative agency, (e) upon the request or demand of any
regulatory agency or authority, (f) that is or becomes available to the public
or that is or becomes available to any Lending Party other than as a result of a
disclosure by any Lending Party prohibited by this Agreement, (g) in connection
with any litigation to which such Lending Party or any of its affiliates may be
a party, (h) to the extent necessary in connection with the exercise of any
remedy under this Agreement or any other Loan Document, and (i)
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122
subject to provisions substantially similar to those contained in this Section
13.9, to any actual or proposed participant or assignee.
XIII.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
XIII.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto.
XIII.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
XIII.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the difference between the
amount of interest paid and the amount of interest which would have been paid if
the Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be canceled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
115
123
XIII.14. Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(b) THE BORROWER AND EACH LENDER HEREBY EXPRESSLY AND
IRREVOCABLY AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS
CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL COURT
SITTING IN NEW YORK AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE BORROWER AND EACH LENDER EXPRESSLY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE
EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER AND EACH LENDER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AND EACH LENDER AGREES THAT SERVICE OF
PROCESS MAY BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE
ADDRESS PROVIDED IN SECTION 13.2 HEREOF, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE
OF FLORIDA.
(d) NOTHING CONTAINED IN SUBSECTIONS (a) OR (b) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF
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124
JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS
WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
[Signatures on following pages]
117
125
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
WINDMERE-DURABLE HOLDINGS, INC.
WITNESS:
By:
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Treasurer
NATIONSBANK, NATIONAL ASSOCIATION, as Agent
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Credit Agreement Signature Page 1
126
NATIONSBANK, NATIONAL ASSOCIATION
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
Domestic Lending Office:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, National Association
ABA # ▇▇▇▇▇▇▇▇▇
Account No.:1366212250600
Reference: Corporate Credit Services
Attention: Windmere
Credit Agreement Signature Page 2
127
ABN AMRO BANK N.V.
By:
-------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Domestic and Eurodollar Lending Office:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:Credit Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
ABN AMRO Bank N.V.
Southwest Financial Center
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Fees, Interest and Loan Repayments:
ABN AMRO Bank N.V.
New York, NY
ABA # ▇▇▇▇▇▇▇▇▇
Account No.: 650-001-1789-41
Reference: Windmere-Durable Holdings, Inc.
Attention: Loan Administration
Letters of Credit:
ABN AMRO Bank N.V., New York, NY
ABA # ▇▇▇▇▇▇▇▇▇▇
F/O ABN AMRO Bank N.V.
New York Trade Services CPU
Account No.: 655-001-1711-41
Reference: Windmere-Durable Holdings, Inc.
Attention: Trade Services Department
Credit Agreement Signature Page 3
128
BANKATLANTIC
By:
-------------------------------------------------
Name:
------------------------------------------------
Title:
----------------------------------------------
Domestic and Eurodollar Lending Office:
BankAtlantic
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # 05300019600
Account No.: 136621-22506
Reference: Windmere-Durable Holdings, Inc.
Attention: CCS/Agency Services
Credit Agreement Signature Page 4
129
BANK LEUMI LE-ISRAEL
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Domestic and Eurodollar Lending Office:
Bank Leumi Le-Israel
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # 05300019600
Account No.: 136621-22506
Reference: Windmere-Durable Holdings, Inc.
Attention: CCS/Agency Services
Credit Agreement Signature Page 5
130
SCOTIABANC INC.
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
Domestic and Eurodollar Lending Office:
Scotiabanc Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # 05300019600
Account No.: 136621-22506
Reference: Windmere-Durable Holdings, Inc.
Attention: CCS/Agency Services
Credit Agreement Signature Page 6
131
PARIBAS
By:
----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
By:
----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Domestic and Eurodollar Lending Office:
Paribas
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇/2689
Wire Transfer Instructions:
Bankers Trust NY
ABA # ▇▇▇-▇▇▇-▇▇▇
Name of Account: Paribas NY
Account No.: ▇▇-▇▇▇-▇▇▇
Reference: Windmere-Durable Holdings, Inc.
Attention: Loan Servicing
Credit Agreement Signature Page 7
132
BARCLAYS BANK PLC
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Domestic and Eurodollar Lending Office:
Barclays Bank PLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇ ▇. Roll
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # 05300019600 Charlotte, NC
Account No.: 136621-22506
Reference: Windmere-Durable Holdings, Inc.
Attention: CCS/Agency Services
Credit Agreement Signature Page 8
133
BHF- BANK ATKIENGESELLSCHAFT
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
-------------------------------------------
Domestic and Eurodollar Lending Office:
BHF-BANK, Aktiengesellschaft
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of ▇▇▇ ▇▇▇▇
▇▇▇ # ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Account No.: ▇▇▇ ▇▇▇ ▇▇▇▇
Reference: Windmere
Credit Agreement Signature Page 9
134
CREDITANSTALT CORPORATE FINANCE, INC.
By:
-------------------------------------------------------
Name:
-----------------------------------------------------
Title:
----------------------------------------------------
By:
-------------------------------------------------------
Name:
-----------------------------------------------------
Title:
----------------------------------------------------
Domestic and Eurodollar Lending Office:
Creditanstalt Corporate Finance, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Chase NY
ABA # ▇▇▇▇▇▇▇▇▇
Account Name: Creditanstalt, Greenwich Branch
Account No.: ▇▇▇-▇-▇▇▇▇▇
Reference: Windmere-Durable Holdings, Inc.
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Credit Agreement Signature Page 10
▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇
By:
-----------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Domestic and Eurodollar Lending Office:
Erste Bank New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # 05300019600 Charlotte, NC
Account No.: 136621-22506
Reference: Windmere-Durable Holdings, Inc.
Attention: CCS/ Agency Services
Credit Agreement Signature Page 11
136
FLEET BANK, N.A.
By:
-----------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Domestic and Eurodollar Lending Office:
Fleet Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Wire Transfer Instructions:
Fleet Bank, N.A.
ABA # 021 300 019
Account No.: G/L ▇▇▇▇▇▇▇-03102
Reference: Windmere-Durable Holdings, Inc.
Credit Agreement Signature Page 12
137
IMPERIAL BANK, A CALIFORNIA BANKING CORPORATION
By:
-------------------------------------------------------
Name:
-----------------------------------------------------
Title:
----------------------------------------------------
Domestic and Eurodollar Lending Office:
Imperial Bank, a California Banking Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Imperial Bank
ABA # ▇▇▇▇▇▇▇▇▇
Account No.: LPIG#2405
Reference: Windmere-Durable Holdings, Inc.
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Credit Agreement Signature Page 13
138
THE LONG-TERM CREDIT BANK OF JAPAN, LTD.
By:
--------------------------------------------------
Name:
-----------------------------------------------
Title:
-----------------------------------------------
Domestic and Eurodollar Lending Office:
The Long-Term Credit Bank of Japan, Ltd.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Chase Manhattan Bank
ABA # 021 000 021
Account Name: The Long-Term Credit Bank
of Japan, New York Branch
Account No.: ▇▇▇-▇-▇▇▇▇▇
Reference: Windmere-Durable Holdings, Inc.
Attention: ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Credit Agreement Signature Page 14
139
THE MITSUBISHI TRUST AND BANKING CORPORATION
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
Domestic and Eurodollar Lending Office:
The Mitsubishi Trust and Banking Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇ or 593-4691
Wire Transfer Instructions:
Bankers Trust
ABA # ▇▇▇▇-▇▇▇▇-▇
Account Name: MTBC, New York
Account No.: ▇▇▇▇▇▇▇▇
Reference: Windmere-Durable Holdings, Inc.
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Credit Agreement Signature Page 15
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
Domestic and Eurodollar Lending Office:
National Bank of Canada
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # 05300019600
Account No.: 136621-22506
Reference: Windmere-Durable Holdings, Inc.
Attention: CCS/Agency Services
Credit Agreement Signature Page 16
141
SANWA BUSINESS CREDIT CORPORATION
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
Domestic and Eurodollar Lending Office:
Sanwa Business Credit Corporation
▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # 05300019600
Account No.: 136621-22506
Reference: Windmere-Durable Holdings, Inc.
Attention: CCS/Agency Services
Credit Agreement Signature Page 17
142
SUMMIT BANK
By:
---------------------------------------------------
Name:
-------------------------------------------------
Title:
------------------------------------------------
Domestic and Eurodollar Lending Office:
Summit Bank
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Summit Bank
ABA # ▇▇▇▇▇▇▇▇▇
Account No.: 47902
Reference: Windmere-Durable Holdings, Inc.
Attention: ▇▇▇▇▇▇▇ ▇▇▇
Credit Agreement Signature Page 18
143
US TRUST
By:
-------------------------------------------------
Name:
-----------------------------------------------
Title:
----------------------------------------------
Domestic and Eurodollar Lending Office:
US Trust
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # 05300019600
Account No.: 136621-22506
Reference: Windmere-Durable Holdings, Inc.
Attention: CCS/Agency Services
Credit Agreement Signature Page 19
144
NATIONSBANK, N.A.
By:
---------------------------------------------------------
Name:
-------------------------------------------------------
Title:
------------------------------------------------------
Domestic and Eurodollar Lending Office:
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA # ▇▇▇-▇▇▇-▇▇▇ Corporate Credit Services
Account No.: 1366212250600
Reference: Name of Credit
(Windmere-Durable Holdings, Inc.)
Attention: ▇▇▇ ▇▇▇▇▇-Flowers
Credit Agreement Signature Page 20
145
THE UNDERSIGNED GUARANTORS HEREBY ACKNOWLEDGE AND CONSENT TO THE AMENDMENT AND
RESTATEMENT OF THE EXISTING CREDIT AGREEMENT AND REAFFIRM THEIR OBLIGATIONS
UNDER THE FACILITY GUARANTY THIS 7TH DAY OF AUGUST 1998:
WINDMERE CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WINDMERE HOLDINGS CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WINDMERE HOLDINGS CORPORATION II
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WINDMERE FAN PRODUCTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JERDON PRODUCTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement Signature Page 21
146
CONSUMER PRODUCTS AMERICAS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EDI MASTERS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WINDMERE INNOVATIVE PET PRODUCTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BAY BOOKS & TAPES, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FORTUNE PRODUCTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement Signature Page 22
147
HOUSEHOLD PRODUCTS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HP DELAWARE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HP AMERICAS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HPG LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
HP INTELLECTUAL CORP
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement Signature Page 23
148
WD DELAWARE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WD DELAWARE II, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Credit Agreement Signature Page 24
149
EXHIBIT A
Applicable Commitment Percentages
Applicable
Revolving Applicable Applicable
Revolving Credit Term A Term B
Credit Commitment Term Loan A Commitment Term Loan B Commitment
Lender Commitment Percentage Commitment Percentage Commitment Percentage
------ --------------- ------------ -------------- ------------ -------------- ------------
NationsBank, National
Association $ 13,559,322.03 8.474576269% $ 6,440,677.97 8.474576276% $45,000,000.00 71.42857141%
ABN Amro Bank N.V. $ 6,779,661.02 5.296610169% $ 3,220,338.98 4.237288132%
BankAtlantic $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.296610171%
Bank Leumi-Israel $ 6,779,661.02 4.237288138% $ 3,220,338.98 4.237288132%
ScotiaBanc Inc. $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.296610171%
Paribas $ 6,779,661.02 4.237288138% $ 3,220,338.98 4.237288132%
Barclays Bank PLC $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.296610171%
BHF- BANK Aktiengesellschaft $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.296610171%
Erste Bank New York $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.296610171%
Fleet Bank, N.A. $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.296610171%
Imperial Bank $ 6,779,661.02 4.237288138% $ 3,220,338.98 4.237288132%
The Long Term Credit Bank of
Japan, Ltd. $ 11,525,423.73 7.203389831% $ 5,474,576.27 7.203389829%
The Mitsubishi Trust and
Banking Corporation $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.▇▇▇▇▇▇▇▇▇%
National Bank of Canada $ 13,220,338.98 8.262711863% $ 6,279,661.02 8.262711868%
Sanwa Business Credit
Corporation $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.296610171%
Summit Bank $ 11,525,423.73 7.203389831% $ 5,474,576.27 7.203389829%
US Trust $ 8,474,576.27 5.296610169% $ 4,025,423.73 5.296610171%
Creditanstalt Corporate
Finance, Inc. $ 6,779,661.02 4.237288138% $ 3,220,338.98 4.237288132% $ 8,000,000.00 12.698412698%
NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC $10,000,000.00 15.873015873%
--------------- ----------- -------------- ----------- -------------- ------------
$160,000,000.00 100% $76,000,000.00 100% $63,000,000.00 100%
150
EXHIBIT B
Form of Assignment and Acceptance
DATED ,
------------- ---
Reference is made to the Amended and Restated Credit Agreement dated as
of August 7, 1998 (the "Credit Agreement") among Windmere-Durable Holdings,
Inc., a Florida corporation (the "Borrower"), the Lenders (as defined in the
Credit Agreement) and NationsBank, N.A., as agent for the Lenders (the "Agent").
Terms defined in the Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Commitment and the
amount of the Loans owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (a) represents and warrants that (i) it is the legal
and beneficial owner of the interest being assigned by it hereunder and that
such interest has not otherwise been pledged, assigned or hypothecated by it and
is free and clear of any adverse claim, (ii) the aggregate principal amount of
the Notes is as set forth on Schedule 1 and (iii) it has delivered to the
Assignee copies of the Credit Agreement together with all schedules and exhibits
thereto which, to its knowledge are true, complete and accurate; (b) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the Loan
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any other instrument or document
furnished pursuant thereto; (c) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of any Credit Party or
the performance or observance by any Credit Party of any of its obligations
under the Loan Documents or any other instrument or document furnished pursuant
thereto; (d) attaches the Note held by the Assignor and requests that the Agent
exchange such Note for new Notes payable to the order of the Assignee in an
amount equal to the Commitment assumed by the Assignee pursuant hereto and to
the Assignor in an amount equal to the Commitment retained by the Assignor, if
any, as specified on Schedule 1 .
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 8.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and
151
without reliance upon the Agent, the 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
the Credit Agreement; (iii) confirms that it is an Eligible Assignee; (iv)
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers and discretion under the Credit Agreement as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will perform
in accordance with their terms all of the obligations that by the terms of the
Credit Agreement are required to be performed by it as a Lender; and (vi)
attaches any U.S. Internal Revenue Service or other forms required under Section
6.6 thereof.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments under the Credit Agreement and the Notes for periods
prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance 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 all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telecopier shall
be effective as delivery of a manually executed counterpart of this Assignment
and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
152
SCHEDULE 1
to
ASSIGNMENT AND ACCEPTANCE
Percentage interest assigned:
Revolving Credit Facility and Term Loan A Facility ________%
Term Loan B Facility ________%
Assignee's Commitment:
Revolving Credit Facility $_______
Aggregate outstanding principal amount of Loans assigned:
Revolving Credit Facility $_______
Term Loan A Facility
Term Loan B Facility $_______
Principal amount of Note payable to Assignee:
Revolving Note $_______
Term A Note $_______
Term B Note $_______
Principal amount of Note payable to Assignor:
Revolving Note $_______
Term A Note $_______
Term B Note
Effective Date (if other than date
of acceptance by Agent): *_______, 19__
[NAME OF ASSIGNOR], as Assignor
By:
---------------------------------
Title:
---------------------------
Dated: , 19
--------------------- ---
153
[NAME OF ASSIGNEE], as Assignee
By:
---------------------------------
Title:
---------------------------
Domestic Lending Office:
Eurodollar Lending Office:
* This date should be no earlier than five Business Days after the
delivery of this Assignment and Acceptance to the Agent.
Accepted [and Approved] **
this ___ day of ___________, 19 _
NATIONSBANK, N.A.
By:
-------------------------------------
Title:
----------------------------------
Approved this ____ day
of ____________, 19__
WINDMERE-DURABLE HOLDINGS, INC.
By:
-------------------------------------**
Title:
----------------------------------
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (iii) of the definition of "Eligible Assignee".
154
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Amended and Restated Credit Agreement
dated as of August 7, 1998 (the "Agreement") among Windmere-Durable Holdings,
Inc., a Florida corporation (the "Borrower"), the Lenders (as defined in the
Agreement), and NationsBank, National Association, as Agent for the Lenders
("Agent"). Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The Borrower hereby nominates, constitutes and appoints each individual
named below as an Authorized Representative under the Loan Documents, and hereby
represents and warrants that (i) set forth opposite each such individual's name
is a true and correct statement of such individual's office (to which such
individual has been duly elected or appointed), a genuine specimen signature of
such individual and an address for the giving of notice, and (ii) each such
individual has been duly authorized by the Borrower to act as Authorized
Representative under the Loan Documents:
Name and Address Office Specimen Signature
----------------------------------- -------------------------- -----------------------------
-----------------------------------
-----------------------------------
----------------------------------- -------------------------- -----------------------------
-----------------------------------
-----------------------------------
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
This the ___ day of __________________, 19__.
-------------------------------
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
155
EXHIBIT D-1
Form of Borrowing Notice
To: NationsBank, National Association,
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Amended and Restated Credit Agreement
dated as of August 7, 1998 (the "Agreement") among Windmere-Durable Holdings,
Inc. (the "Borrower"), the Lenders (as defined in the Agreement), and
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives
notice to the Agent that Loans of the type and amount set forth below be made on
the date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
------------ --------- ---------- ---------------
Revolving Loan
-- Base Rate Loan
-- Eurodollar Rate Loan
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $5,000,000 or if greater an integral multiple of $1,000,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days after the date hereof if a Eurodollar
Rate Loan;
The Borrower hereby requests that the proceeds of Loans described in
this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
156
2. All the representations and warranties set forth in Article VIII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in Section 8.6(a) of the
Agreement are to those financial statements most recently delivered to you
pursuant to Section 9.1 of the Agreement and attached hereto are any changes to
the Schedules referred to in connection with such representations and
warranties.
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full .
WINDMERE-DURABLE HOLDINGS, INC.
BY:
-----------------------------------
Authorized Representative
DATE:
---------------------------------
157
EXHIBIT D-2
Form of Borrowing Notice--Swing Line Loans
To: NationsBank, National Association,
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Amended and Restated Credit Agreement
dated as of August 7, 1998 (the "Agreement") among Windmere-Durable Holdings,
Inc. (the "Borrower"), the Lenders (as defined in the Agreement), and
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to NationsBank that a Swing Line Loan of the amount set forth below be made on
the date indicated:
Amount(1) Date of Loan
--------- ----------, ----
-----------------------
(1) Must be $500,000 or if greater an integral multiple of $100,000, unless
a Base Rate Refunding Loan.
The Borrower hereby requests that the proceeds of Swing Line Loans
described in this Borrowing Notice be made available to the Borrower as follows:
[insert transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VIII of
the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in Section 8.6(a) of the
Agreement are to those financial statements most recently delivered to you
pursuant to Section 9.1 of the Agreement and attached hereto are any changes to
the Schedules referred to in connection with such representations and
warranties.
158
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
WINDMERE-DURABLE HOLDINGS, INC.
BY:
-------------------------------
Authorized Representative
DATE:
-----------------------------
159
EXHIBIT E
Form of Interest Rate Selection Notice
To: NationsBank, National Association,
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Amended and Restated Credit Agreement
dated as of August 7, 1998 (the "Agreement") among Windmere-Durable Holdings,
Inc. (the "Borrower"), the Lenders (as defined in the Agreement), and
NationsBank, National Association, as Agent for the Lenders ("Agent").
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice
to the Agent of the following selection of a type of Loan and Interest Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3)
------------ --------- --------- ---------------
Term Loan A Segment
-------------------
-- Base Rate Loan
-- Eurodollar Rate Loan
Term Loan B Segment
-------------------
-- Base Rate Loan
-- Eurodollar Rate Loan
Revolving Loan
--------------
-- Base Rate Loan
-- Eurodollar Rate Loan
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $1,000,000 or if greater an integral multiple of $100,000,
unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days after the date hereof if a Eurodollar
Rate Loan.
WINDMERE-DURABLE HOLDINGS, INC.
BY:
------------------------------------
Authorized Representative
DATE:
----------------------------------
160
EXHIBIT F-1
Form of Term Note A
Promissory Note
(Term Loan A)
$______________ Charlotte, North Carolina
August ___, 1998
FOR VALUE RECEIVED, WINDMERE-DURABLE HOLDINGS, INC., a Florida
corporation having its principal place of business located in Miami Lakes,
Florida (the "Borrower"), hereby promises to pay to the order of
______________________________________________ (the "Lender"), in its individual
capacity, at the office of NATIONSBANK, NATIONAL ASSOCIATION, as agent for the
Lenders (the "Agent"), located at One Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place
or places as the Agent may designate in writing) at the times set forth in the
Amended and Restated Credit Agreement dated as of August 7, 1998 among the
Borrower, the financial institutions party thereto (collectively, the "Lenders")
and the Agent (as from time to time amended, supplemented or replaced, the
"Agreement" -- all capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement), in lawful money of the United
States of America, in immediately available funds, the principal amount of
___________ DOLLARS ($__________) or, if less than such principal amount, the
aggregate unpaid principal amount of Term Loan A made by the Lender to the
Borrower pursuant to the Agreement on the Term Loan A Termination Date or such
earlier date as may be required pursuant to the terms of the Agreement, and to
pay interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates provided in Article II of
the Agreement. All or any portion of the principal amount of Term A Loans may be
prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement or if an Event of Default shall have occurred and
be continuing, the then remaining principal amount and accrued but unpaid
interest shall bear interest which shall be payable on demand at the rates per
annum set forth in the proviso to Section 2.3 (c) of the Agreement. Further, in
the event of such acceleration, this Note shall become immediately due and
payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event any amount evidenced by this Term A Note is not paid when
due at any stated or accelerated maturity, the Borrower agrees to pay, in
addition to the principal and interest, all costs of collection, including
reasonable attorneys' fees, and interest due hereunder thereon at the rates set
forth above.
161
Interest hereunder shall be computed as provided in the Agreement.
This Term A Note is one of the Term A Notes in the aggregate principal
amount of $76,000,000 referred to in the Agreement and is issued pursuant to and
entitled to the benefits and security of the Agreement to which reference is
hereby made for a more complete statement of the terms and conditions upon which
the Term A Loans evidenced hereby were or are made and are to be repaid. This
Term A Note is subject to certain restrictions on transfer or assignment as
provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
162
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
WINDMERE-DURABLE HOLDINGS, INC.
WITNESS:
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
163
ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF
WINDMERE-DURABLE HOLDINGS, INC.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ____ day of ___________, 199_ A.D., personally appeared
___________________ known to be the _________ of Windmere-Durable Holdings, Inc.
(the "Borrower"), who, being by me duly sworn, says he works at
____________________________________, _____________, and that by authority duly
given by, and as the act of, the Borrower, the foregoing and annexed Note dated
____________, 1998, was signed by him as said ______________ on behalf of the
Borrower.
Witness my hand and official seal this ___ day of _________, 1998.
----------------------------------
Notary Public
(SEAL)
My commission expires: __________
164
AFFIDAVIT OF _________________
The undersigned, being first duly sworn, deposes and says that:
1. He is an ________________________ of _____________________________
_____________________________________________________ (the "Bank") and works at
_________________________________ _____________________________________________.
2. The Note of Windmere-Durable Holdings, Inc. to the Bank in the
principal amount of $_____________, dated __________, 1998 was executed before
him and delivered to him on behalf of the Bank in _________________________ on
__________, 1998.
This the ___ day of ________, 1998.
----------------------------------
Name:
Acknowledgment of Execution
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ___ day of ________, 1998 A.D., personally appeared
_________________ who before me affixed his signature to the above Affidavit.
Witness my hand and official seal this ___ day of ________, 1998.
------------------------------------
Notary Public
(SEAL)
My Commission Expires: __________
165
EXHIBIT F-2
Form of Term Note B
Promissory Note
(Term Loan B)
$______________ Charlotte, North Carolina
August ___, 1998
FOR VALUE RECEIVED, WINDMERE-DURABLE HOLDINGS, INC., a Florida
corporation having its principal place of business located in Miami Lakes,
Florida (the "Borrower"), hereby promises to pay to the order of
______________________________________________ (the "Lender"), in its individual
capacity, at the office of NATIONSBANK, NATIONAL ASSOCIATION, as agent for the
Lenders (the "Agent"), located at One Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place
or places as the Agent may designate in writing) at the times set forth in the
Amended and Restated Credit Agreement dated as of August 7, 1998 among the
Borrower, the financial institutions party thereto (collectively, the "Lenders")
and the Agent (as from time to time amended, supplemented or replaced, the
"Agreement" -- all capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement), in lawful money of the United
States of America, in immediately available funds, the principal amount of
___________ DOLLARS ($__________) or, if less than such principal amount, the
aggregate unpaid principal amount of Term Loan B made by the Lender to the
Borrower pursuant to the Agreement on the Term Loan B Termination Date or such
earlier date as may be required pursuant to the terms of the Agreement, and to
pay interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates provided in Article II of
the Agreement. All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement or if an Event of Default shall have occurred and
be continuing, the then remaining principal amount and accrued but unpaid
interest shall bear interest which shall be payable on demand at the rates per
annum set forth in the proviso to Section 2.3 (c) of the Agreement. Further, in
the event of such acceleration, this Term BNote shall become immediately due and
payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event any amount evidenced by this Term B Note is not paid when
due at any stated or accelerated maturity, the Borrower agrees to pay, in
addition to the principal and interest, all costs of collection, including
reasonable attorneys' fees, and interest due hereunder thereon at the rates set
forth above.
166
Interest hereunder shall be computed as provided in the Agreement.
This Term B Note is one of the Term B Notes in the aggregate principal
amount of $63,000,000 referred to in the Agreement and is issued pursuant to and
entitled to the benefits and security of the Agreement to which reference is
hereby made for a more complete statement of the terms and conditions upon which
the Term B Loans evidenced hereby were or are made and are to be repaid. This
Term B Note is subject to certain restrictions on transfer or assignment as
provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
167
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
WINDMERE-DURABLE HOLDINGS, INC.
WITNESS:
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
168
ACKNOWLEDGEMENT OF EXECUTION ON BEHALF OF
WINDMERE-DURABLE HOLDINGS, INC.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ____ day of ___________, 199_ A.D., personally appeared
___________________ known to be the _________ of Windmere-Durable Holdings, Inc.
(the "Borrower"), who, being by me duly sworn, says he works at
____________________________________, _____________, and that by authority duly
given by, and as the act of, the Borrower, the foregoing and annexed Note dated
____________, 1998, was signed by him as said ______________ on behalf of the
Borrower.
Witness my hand and official seal this ___ day of _________, 1998.
---------------------------------
Notary Public
(SEAL)
My commission expires: __________
169
AFFIDAVIT OF _________________
The undersigned, being first duly sworn, deposes and says that:
1. He is an ________________________ of _____________________________
_____________________________________________________ (the "Bank") and works at
_________________________________ _____________________________________________.
2. The Note of Windmere-Durable Holdings, Inc. to the Bank in the
principal amount of $_____________, dated __________, 1998 was executed before
him and delivered to him on behalf of the Bank in _________________________ on
__________, 1998.
This the ___ day of ________, 1998.
------------------------------------
Name:
Acknowledgement of Execution
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ___ day of ________, 1998 A.D., personally appeared
_________________ who before me affixed his signature to the above Affidavit.
Witness my hand and official seal this ___ day of ________, 1998.
----------------------------------
Notary Public
(SEAL)
My Commission Expires: __________
170
EXHIBIT F-3
Form of Revolving Note
Promissory Note
(Revolving Loan)
$______________ New York, New York
August ___, 1998
FOR VALUE RECEIVED, WINDMERE-DURABLE HOLDINGS, INC., a Florida
corporation having its principal place of business located in Miami Lakes,
Florida (the "Borrower"), hereby promises to pay to the order of
___________________________________ (the "Lender"), in its individual capacity,
at the office of NATIONSBANK, NATIONAL ASSOCIATION, as agent for the Lenders
(the "Agent"), located at One Independence Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the Agent may designate in writing) at the times set forth in the Amended and
Restated Credit Agreement dated as of August 7, 1998 among the Borrower, the
financial institutions party thereto (collectively, the "Lenders") and the Agent
(as from time to time amended, supplemented or replaced, the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of ___________
DOLLARS ($__________) or, if less than such principal amount, the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
Borrower pursuant to the Agreement on the Revolving Credit Termination Date or
such earlier date as may be required pursuant to the terms of the Agreement, and
to pay interest from the date hereof on the unpaid principal amount hereof, in
like money, at said office, on the dates and at the rates provided in Article
III of the Agreement. All or any portion of the principal amount of Revolving
Loans may be prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement or if an Event of Default shall have occurred and
be continuing, the then remaining principal amount and accrued but unpaid
interest shall bear interest which shall be payable on demand at the rates per
annum set forth in the proviso to Section 3.2 (a) of the Agreement. Further, in
the event of such acceleration, this Revolving Note shall become immediately due
and payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event any amount evidenced by this Revolving Note is not paid
when due at any stated or accelerated maturity, the Borrower agrees to pay, in
addition to the principal and interest, all costs of collection, including
reasonable attorneys' fees, and interest due hereunder thereon at the rates set
forth above.
171
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Note is one of the Revolving Notes in the aggregate
principal amount of $160,000,000 referred to in the Agreement and is issued
pursuant to and entitled to the benefits and security of the Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions upon which the Revolving Loans evidenced hereby were or are made and
are to be repaid. This Revolving Note is subject to certain restrictions on
transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
172
IN WITNESS WHEREOF, the Borrower has caused this Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
WINDMERE-DURABLE HOLDINGS, INC.
WITNESS:
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
173
ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF
WINDMERE-DURABLE HOLDINGS, INC.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ____ day of ___________, 199_ A.D., personally appeared
___________________ known to be the _________ of Windmere-Durable Holdings, Inc.
(the "Borrower"), who, being by me duly sworn, says he works at
____________________________________, _____________, and that by authority duly
given by, and as the act of, the Borrower, the foregoing and annexed Note dated
____________, 1998, was signed by him as said ______________ on behalf of the
Borrower.
Witness my hand and official seal this ___ day of _________, 1998.
----------------------------------
Notary Public
(SEAL)
My commission expires: __________
174
AFFIDAVIT OF _________________
The undersigned, being first duly sworn, deposes and says that:
1. He is an ________________________ of _____________________________
_____________________________________________________ (the "Bank") and works at
_________________________________ _____________________________________________.
2. The Note of Windmere-Durable Holdings, Inc. to the Bank in the
principal amount of $_____________, dated __________, 1998 was executed before
him and delivered to him on behalf of the Bank in _________________________ on
__________, 1998.
This the ___ day of ________, 1998.
----------------------------------
Name:
Acknowledgment of Execution
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ___ day of ________, 1998 A.D., personally appeared
_________________ who before me affixed his signature to the above Affidavit.
Witness my hand and official seal this ___ day of ________, 1998.
-------------------------------------
Notary Public
(SEAL)
My Commission Expires: __________
175
EXHIBIT F-4
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$10,000,000 Charlotte, North Carolina
August ___, 1998
FOR VALUE RECEIVED, WINDMERE CORPORATION, a Florida corporation having
its principal place of business located in Miami Lakes, Florida (the
"Borrower"), hereby promises to pay to the order of NATIONSBANK, NATIONAL
ASSOCIATION (the "Lender"), in its individual capacity, at the office of
NATIONSBANK, NATIONAL ASSOCIATION, located at One Independence Center, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other
place or places as the Agent may designate in writing) at the times set forth in
the Amended and Restated Credit Agreement dated as of August 7, 1998 among the
Borrower, the financial institutions party thereto (collectively, the "Lenders")
and the Agent (the "Agreement" -- all capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Agreement), in lawful
money of the United States of America, in immediately available funds, the
principal amount of TEN MILLION DOLLARS ($10,000,000) or, if less than such
principal amount, the aggregate unpaid principal amount of all Swing Line Loans
made by the Lender to the Borrower pursuant to the Agreement on the Revolving
Credit Termination Date or such earlier date as may be required pursuant to the
terms of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Article III of the Agreement. All or any portion of the
principal amount of Swing Line Loans may be prepaid or required to be prepaid as
provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement or if an Event of Default shall have occurred and
be continuing, the then remaining principal amount and accrued but unpaid
interest shall bear interest which shall be payable on demand at the rates per
annum set forth in the proviso to Section 3.2 (a) of the Agreement. Further, in
the event of such acceleration, this Swing Line Note shall become immediately
due and payable, without presentation, demand, protest or notice of any kind,
all of which are hereby waived by the Borrower.
In the event this Swing Line Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
176
Interest hereunder shall be computed as provided in the Agreement.
This Swing Line Note is issued pursuant to and entitled to the benefits
and security of the Agreement to which reference is hereby made for a more
complete statement of the terms and conditions upon which the Swing Line Loans
evidenced hereby were or are made and are to be repaid. This Swing Line Note is
subject to certain restrictions on transfer or assignment as provided in the
Agreement.
THIS SWING LINE NOTE IS ISSUED IN REPLACEMENT OF AND NOT AS PAYMENT FOR
THAT CERTAIN SWING LINE NOTE DATED AS OF JUNE 26, 1998 ISSUED BY THE BORROWER IN
FAVOR OF THE LENDER.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law the benefits of all provisions of law for
stay or delay of execution or sale of property or other satisfaction of judgment
against any of them on account of liability hereon until judgment be obtained
and execution issues against any other of them and returned satisfied or until
it can be shown that the maker or any other party hereto had no property
available for the satisfaction of the debt evidenced by this instrument, or
until any other proceedings can be had against any of them, also their right, if
any, to require the holder hereof to hold as security for this Swing Line Note
any collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
177
IN WITNESS WHEREOF, the Borrower has caused this Swing Line Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
WINDMERE-DURABLE HOLDINGS, INC.
WITNESS:
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
178
ACKNOWLEDGMENT OF EXECUTION ON BEHALF OF
WINDMERE-DURABLE HOLDINGS, INC.
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ____ day of ___________, 199_ A.D., personally appeared
___________________ known to be the _________ of Windmere-Durable Holdings, Inc.
(the "Borrower"), who, being by me duly sworn, says he works at
____________________________________, _____________, and that by authority duly
given by, and as the act of, the Borrower, the foregoing and annexed Note dated
_________, 1998, was signed by him as said ______________ on behalf of the
Borrower.
Witness my hand and official seal this ___ day of _________, 1998.
----------------------------------
Notary Public
(SEAL)
My commission expires: __________
179
AFFIDAVIT OF _________________
The undersigned, being first duly sworn, deposes and says that:
1. He is an ___________________________________ of
_____________________ ____________________________ (the "Bank") and works at
_______________________________________________.
2. The Note of Windmere-Durable Holdings, Inc. to the Bank in the
principal amount of $_____________, dated _________, 1998 was executed before
him and delivered to him on behalf of the Bank in _________________________ on
__________, 1998.
This the ___ day of ________, 1998.
----------------------------------
Name:
Acknowledgment of Execution
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
Before me, the undersigned, a Notary Public in and for said County and
State on this ___ day of ________, 1998 A.D., personally appeared
_________________ who before me affixed his signature to the above Affidavit.
Witness my hand and official seal this ___ day of ________, 1998.
----------------------------------
Notary Public
(SEAL)
My Commission Expires: __________
180
EXHIBIT G
FORM OF STOCK PLEDGE AGREEMENT
STOCK PLEDGE AGREEMENT
THIS STOCK PLEDGE AGREEMENT (this "Agreement") is made and entered into
as of June __, 1998 by and between WINDMERE-DURABLE HOLDINGS, INC., a Florida
corporation (the "Borrower"), AND EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE
BORROWER (each a "Guarantor", and collectively with the Borrower, the
"Pledgors") and NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association, as Agent (the "Agent") for each of the lenders (the "Lenders" and
collectively with the Agent, the "Secured Parties") now or hereafter party to
the Credit Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned thereto in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into that
certain Credit Agreement dated as of the date hereof (as amended, supplemented
or replaced from time to time, the "Credit Agreement"); and
WHEREAS, each Pledgor desires to pledge to the Secured Parties to
secure the payment and performance of the Borrower's Obligations under the
Credit Agreement and the Guarantors' obligations under the Facility Guaranty, as
applicable, of all of its interest in (a) all partnership interest owned in
Anasazi Partners, L.P. (the "Partnership Interest") and (b) all of the issued
and outstanding shares of common stock now and hereafter owned by such Pledgor
of (i) Newtech Electronics Industries, Inc., PX Distributors, Inc. and Break
Room of Tennessee, Inc. and (ii) each of its Domestic Subsidiaries and Domestic
Control Subsidiaries and Direct Foreign Control Subsidiaries and 65% of all
issued and outstanding shares of voting stock of each of its current and future
Direct Foreign Subsidiaries, such subsidiaries as of the date hereof are
identified on Schedule I hereto (all of the Partnership Interest and capital
stock described above are referred to collectively as the "Pledged Stock"); and
WHEREAS, each Pledgor will materially benefit from the loans and
advances to be made and the letters of credit to be issued under the Credit
Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
_ Pledge of Stock; Other Collateral.
__"____` As collateral security for the payment and performance of all
debts, obligations or liabilities now or hereafter existing, absolute or
contingent, of the Guarantors
G-1
181
under the Facility Guaranty and of all of the Borrower's Obligations under the
Credit Agreement (collectively, the "Secured Obligations"), and subject to
Section 10 hereof, each Pledgor hereby pledges and collaterally assigns to the
Agent for the benefit of the Lenders, and grants to the Agent for the benefit of
the Lenders pursuant to the New York Uniform Commercial Code (the "UCC") a first
priority security interest in the Pledged Stock and all of the following:
(A) all cash, securities, dividends, rights,
interests and other property at any time and from time to time declared
or distributed in respect of or in exchange for any or all of the
Pledged Stock, other than dividends permitted to be retained by such
Pledgor under the Credit Agreement; and
(B) all other property hereafter delivered to the
Agent in substitution for or in addition to any of the foregoing, all
certificates and instruments representing or evidencing such property
and all cash, securities, interest, dividends, rights, and other
property at any time and from time to time declared or distributed in
respect of or in exchange for any or all of the Pledged Stock.
All such Pledged Stock, certificates, instruments, cash, securities, interest,
dividends, rights and other property referred to in this Section 1, other than
dividends issued in respect of such Pledged Stock that are permitted to be
retained by such Pledgor under the Credit Agreement, are herein collectively
referred to as the "Collateral." All of the Pledged Stock is owned by the
respective Pledgors and represented by the stock certificates (or registered
interest with respect to the Partnership Interest) listed on Schedule I hereto.
There have been delivered to the Agent (A) with respect to all the certificated
Pledged Stock existing on the date hereof, certificates evidencing such Pledged
Interests, together with undated stock powers or other transfer instruments duly
executed in blank by the Pledgor, and (B) with respect to the Partnership
Interest, a registrar's pledge certificate in the form of Exhibit B hereto.
__"____` The Pledgor agrees to deliver all the Collateral to the Agent
at such location as the Agent shall from time to time designate by written
notice pursuant to Section 20 hereof for its custody at all times until
termination of this Agreement, together with such instruments of assignment and
transfer as requested by the Agent.
__"____` All advances, charges, costs and expenses, including
reasonable attorneys' fees, incurred or paid by the Agent or any Lender in
exercising any right, power or remedy conferred by this Agreement, or in the
enforcement thereof, shall become a part of the Secured Obligations secured
hereunder and shall be paid to the Agent for the benefit of the Lenders by each
Pledgor immediately upon demand therefor, with interest thereon until paid in
full at the Base Rate.
_ Status of Pledged Stock. Each Pledgor hereby represents and warrants
to the Agent for the benefit of the Lenders that (a) all of the shares of the
Pledged Stock (other than the Partnership Interest) are validly issued and
outstanding, fully paid and nonassessable and constitute (i) all the issued and
outstanding shares of voting stock of each Domestic Subsidiary,
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(ii) all issued and outstanding shares of voting stock owned by such Pledgor of
each Domestic Control Subsidiary and Direct Foreign Control Subsidiary, and
(iii) 65% of all of the issued and outstanding voting stock of the Direct
Foreign Subsidiaries, all as set forth on Schedule I hereto, (b) the Partnership
Interest constitutes all of the interest owned by the Pledgors in the
Partnership as set forth on Schedule I hereto, (c) each Pledgor is the
registered and record and beneficial owner of its Pledged Stock, free and clear
of all Liens, charges, equities, encumbrances and restrictions on pledge or
transfer (other than the pledge hereunder and under the Loan Documents and
applicable restrictions pursuant to federal and state securities laws, (d) it
has full corporate power, legal right and lawful authority to execute this
Agreement and to pledge, assign and transfer its Pledged Stock in the manner and
form hereof, and (d) the pledge, assignment and delivery of its Pledged Stock to
the Agent for the benefit of the Lenders pursuant to this Agreement creates a
valid and perfected first priority security interest in such Pledged Stock,
securing the payment of the Secured Obligations, assuming continuous and
uninterrupted possession thereof by the Agent or, with respect to the
Partnership Interest, compliance with Section 22 hereof. Except as otherwise
expressly provided herein or in the Credit Agreement, none of the Pledged Stock
(nor any interest therein or thereto) shall be sold, transferred or assigned
without the Agent's prior written consent, which may be withheld for any reason.
Each Pledgor covenants with the Agent for the benefit of the Lenders that it
shall at all times cause its Pledged Stock (other than the Partnership Interest)
to be represented by the certificates now and hereafter delivered to the Agent
in accordance with Section 1 hereof and that it shall cause each of its
Subsidiaries not to issue any capital stock, or securities convertible into
capital stock, at any time during the term of this Agreement other than to the
Borrower or another Guarantor who shall immediately pledge such additional
capital stock to the Agent on substantially identical terms as are contained
herein. Each Pledgor hereby agrees not to enter into any agreement requiring
that the voting rights associated with the Pledged Stock be exercised in any
particular manner nor grant any interest in or permit to exist any Lien, charge,
encumbrance or restriction with respect to the Pledged Stock (other than
applicable restrictions pursuant to federal and state securities laws).
_ Preservation and Protection of Collateral.
__"____` The Agent shall be under no duty or liability with respect to
the collection, protection or preservation of the Collateral, or otherwise,
beyond the use of reasonable care in the custody and preservation thereof while
in its possession.
__"____` Each Pledgor agrees to pay when due all taxes, charges, Liens
and assessments against the Collateral, unless being contested in good faith by
appropriate proceedings diligently conducted and against which adequate reserves
have been established in accordance with GAAP applied on a Consistent Basis.
Upon the failure of any Pledgor to so pay or contest such taxes, charges, Liens
or assessments, the Agent at its option may pay or contest any of them (the
Agent having the sole right to determine the legality or validity and the amount
necessary to discharge such taxes, charges, Liens or assessments).
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_ Default. Should a Pledgor fail to pay the Agent all Secured
Obligations as of the end of the Business Day on which such Secured Obligations
become due and payable and after the expiration of all grace or cure periods, if
any, and all extensions or waivers, if any, and should such failure continue, or
should any other Event of Default set forth in the Credit Agreement occur and be
continuing, or should such Pledgor fail otherwise to comply with the terms
hereof (any of the foregoing an "Event of Default"), the Agent is given full
power and authority, then or at any time thereafter, to sell, assign and deliver
or collect the whole or any part of the Collateral, or any substitute therefor
or any addition thereto, in one or more sales, with or without any previous
demands or demand of performance or, to the extent permitted by law, notice or
advertisement, in such order as the Agent may elect; and any such sale may be
made either at public or private sale at the Agent's place of business or
elsewhere, either for cash or upon credit or for future delivery, at such price
as the Agent may reasonably deem fair; and the Agent may be the purchaser of any
or all Collateral so sold and hold the same thereafter in its own right free
from any claim of a Pledgor or right of redemption. Demands of performance,
advertisements and presence of property and sale and notice of sale are hereby
waived to the extent permissible by law. Any sale hereunder may be conducted by
an auctioneer or any officer or agent of the Agent. Pledgor recognizes that the
Agent may be unable to effect a public sale of the Collateral by reason of
certain prohibitions contained in the Securities Act of 1933, as amended (the
"Securities Act"), and applicable state law, and may be otherwise delayed or
adversely affected in effecting any sale by reason of present or future
restrictions thereon imposed by governmental authorities, and that as a
consequence of such prohibitions and restrictions the Agent may be compelled (i)
to resort to one or more private sales to a restricted group of purchasers who
will be obliged to agree, among other things, to acquire the stock for their own
account, for investment and not with a view to the distribution or resale
thereof, or (ii) to seek regulatory approval of any proposed sale or sales, or
(iii) to limit the amount of Collateral sold to any Person or group. Each
Pledgor agrees and acknowledges that private sales so made may be at prices and
upon terms less favorable to Pledgor than if such Collateral was sold either at
public sales or at private sales not subject to other regulatory restrictions,
and that the Agent has no obligation to delay the sale of any of the Collateral
for the period of time necessary to permit the issuer of such Collateral to
register or otherwise qualify them, even if such issuer would agree to register
or otherwise qualify such Collateral for public sale under the Securities Act or
applicable state law. Each Pledgor further agrees, to the extent permitted by
applicable law, that the use of private sales made under the foregoing
circumstances to dispose of the Collateral shall be deemed to be dispositions in
a commercially reasonable manner. Each Pledgor hereby acknowledges that a ready
market may not exist for the Pledged Stock if such Pledged Stock is not traded
on a national securities exchange or quoted on an automated quotation system and
in such event the Pledged Stock may be sold for an amount less than a pro rata
share of the fair market value of the issuer's assets minus its liabilities. In
addition to the foregoing, the Secured Parties may exercise such other rights
and remedies as may be available under the Loan Documents, at law (including
without limitation the UCC) or in equity.
_ Proceeds of Sale. The proceeds of the sale of any of the Collateral
and all sums received or collected from or on account of such Collateral shall
first be applied to the payment of expenses incurred or paid by the Agent in
connection with any sale, transfer or delivery of the
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Collateral, then to the payment of any other costs, charges, reasonable
attorneys' fees or expenses mentioned herein, and then in accordance with
Section 11.5 of the Credit Agreement. The Agent shall, upon satisfaction in full
of all such Secured Obligations, pay any balance to Pledgors.
_ Presentments, Etc. The Agent shall not be under any duty or
obligation whatsoever to make or give any presentments, demands for
performances, notices of nonperformance, protests, notice of protest or notice
of dishonor in connection with any obligations or evidences of indebtedness held
thereby as collateral, or in connection with any obligations or evidences of
indebtedness which constitute in whole or in part the Secured Obligations
secured hereunder.
_ Attorney-in-Fact. Each Pledgor hereby appoints the Agent as such
Pledgor's attorney-in-fact for the purposes of carrying out the provisions of
this Agreement and taking any action and executing any instrument which the
Agent may deem necessary or advisable to accomplish the purposes hereof, which
appointment is irrevocable and coupled with an interest; provided, that the
Agent shall have and may exercise rights under this power of attorney only upon
the occurrence and during the continuance of a Default or an Event of Default.
Without limiting the generality of the foregoing, upon the occurrence and during
the continuance of a Default or an Event of Default, the Agent shall have the
right and power to receive, endorse and collect all checks and other orders for
the payment of money made payable to such Pledgor representing any dividend,
payment, or other distribution payable or distributable in respect to the
Collateral or any part thereof and to give full discharge for the same.
_ Absolute Rights and Obligations. All rights of the Secured Parties,
and all obligations of the Pledgors hereunder, shall be absolute and
unconditional irrespective of:
__"____` any lack of validity or enforceability of the Credit
Agreement, the Facility Guaranty, any other Loan Document or any other
agreement or instrument relating to any of the Secured Obligations;
__"____` any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from the
Credit Agreement, the Facility Guaranty, any other Loan Document or any
other agreement or instrument relating to any of the Secured
Obligations;
__"____` any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from the Facility Guaranty, any guaranty, or any other
security for all or any of the Secured Obligations; or
__"____` any other circumstances which might otherwise
constitute a defense available to, or a discharge of, any Pledgor in
respect of the Secured Obligations or of this Agreement.
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_ Waiver by a Pledgor. Each Pledgor waives (to the extent permitted by
applicable law) (a) any right to require any Secured Party or any other obligee
of the Secured Obligations to (i) proceed against the Borrower, any Guarantor or
any other Person or entity, (ii) proceed against or exhaust any Collateral as
defined in the Credit Agreement, or (iii) pursue any other remedy in its power
and (b) any defense arising by reason of any disability or other defense of the
Borrower, any Guarantor or any other Person, or by reason of the cessation from
any cause whatsoever of the liability of the Borrower, any Guarantor or any
other Person or entity. Until the Facility Termination Date, no Pledgor shall
have any right of subrogation, and each Pledgor waives any right to enforce any
remedy which any Secured Party or any other obligee of the Secured Obligations
now has or may hereafter have against any other Person and waives (to the extent
permitted by applicable law) any benefit of and any right to participate in any
collateral or security whatsoever now or hereafter held by the Agent for the
benefit of the Lenders. Each Pledgor authorizes any Secured Party and any other
obligee of the Secured Obligations without notice (except notice required by
applicable law) or demand and without affecting its liability hereunder or under
the Loan Documents from time to time to: (i) take and hold security, other than
the Collateral herein described, for the payment of such Secured Obligations or
any part thereof, and exchange, enforce, waive and release the Collateral herein
described or any part thereof or any such other security; and (ii) apply such
Collateral or other security and direct the order or manner of sale thereof as
such Secured Party or obligee in its discretion may determine.
The Agent may at any time deliver (without representation, recourse or
warranty) the Collateral or any part thereof to a Pledgor free and clear of all
liens and the receipt thereof by such Pledgor shall be a complete and full
acquittance for the Collateral so delivered, and the Secured Parties shall
thereafter be discharged from any liability or responsibility therefor.
_ Dividends and Voting Rights.
__"____` All dividends and other distributions with respect to any of
the Pledged Stock shall be subject to the pledge hereunder except for dividends
permitted to be retained by such Pledgor under the Credit Agreement. So long as
no Default or Event of Default shall have occurred and be continuing, any such
dividends may be retained by such Pledgor free from any Liens hereunder.
Following the occurrence and during the continuance of any Default or Event of
Default, all dividends shall be promptly delivered to the Agent (together with
stock powers or instruments of assignment duly executed in blank affixed to any
capital stock or other negotiable document or instrument so distributed) to be
held, released or disposed of by it hereunder or, at the option of the Agent, to
be applied to the Secured Obligations hereby secured as they become due.
__"____` So long as no Acceleration Event shall have occurred and be
continuing, the registration of the Collateral in the name of a Pledgor shall
not be changed and such Pledgor shall be entitled to exercise all voting and
other rights and powers pertaining to the Collateral for all purposes not
inconsistent with the terms hereof.
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__"____` Upon the occurrence and during the continuance of any
Acceleration Event, at the option of the Agent, all rights of a Pledgor to
receive and retain dividends upon the Collateral shall cease and shall thereupon
be vested in the Agent for the benefit of the Lenders.
__"____` Upon the occurrence and during the continuance of an
Acceleration Event, at the option of the Agent, all rights of a Pledgor to
exercise the voting or consensual rights and powers which it is authorized to
exercise pursuant to subsection (b) above shall cease and the Agent may
thereupon (but shall not be obligated to) cause such Collateral to be registered
in the name of the Agent or its nominee or agent for the benefit of the Lenders
and exercise such voting or consensual rights and powers as appertain to
ownership of such Collateral, and to that end each Pledgor hereby appoints the
Agent as its proxy, with full power of substitution, to vote and exercise all
other rights as a shareholder with respect to such Pledged Stock hereunder upon
the occurrence and during the continuance of an Acceleration Event, which proxy
is coupled with an interest and is irrevocable prior to termination of this
Agreement, and each Pledgor hereby agrees to provide such further proxies as the
Agent may request; provided, however, that the Agent in its discretion may from
time to time refrain from exercising, and shall not be obligated to exercise,
any such voting or consensual rights or such proxy.
_ Power of Sale. Until the Facility Termination Date, the power of sale
and other rights, powers and remedies granted to the Agent for the benefit of
the Lenders hereunder shall continue to exist and may be exercised by the Agent
at any time and from time to time, upon the occurrence and during the
continuance of an Acceleration Event, irrespective of the fact that any Secured
Obligations or any part thereof may have become barred by any statute of
limitations or that the liability of a Pledgor may have ceased.
_ Other Rights. The rights, powers and remedies given to the Agent for
the benefit of the Lenders by this Agreement shall be in addition to all rights,
powers and remedies given to any Secured Party by virtue of any statute or rule
of law. Any forbearance or failure or delay by the Agent in exercising any
right, power or remedy hereunder shall not be deemed to be a waiver of such
right, power or remedy, and any single or partial exercise of any right, power
or remedy hereunder shall not preclude the further exercise thereof; and every
right, power and remedy of the Secured Parties shall continue in full force and
effect until such right, power or remedy is specifically waived by the Required
Lenders by an instrument in writing.
_ Further Assurances. Each Pledgor agrees at its own expense to do such
further acts and things, and to execute and deliver such additional conveyances,
assignments, financing statements, agreements and instruments, as the Agent may
at any time reasonably request in connection with the administration or
enforcement of this Agreement or related to the Collateral or any part thereof
or in order better to assure and confirm unto the Agent its rights, powers and
remedies for the benefit of the Lenders hereunder. Each Pledgor hereby consents
and agrees that the issuers of or obligors in respect of the Collateral shall be
entitled to accept the provisions hereof as conclusive evidence of the right of
the Agent, on behalf of the Lenders, to exercise its rights hereunder with
respect to the Collateral, notwithstanding any other notice or direction to the
contrary heretofore or hereafter given by such Pledgor or any other Person to
any of such issuers or obligors.
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_ Binding Agreement; Assignment. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto, and to their respective successors and assigns, except
that no Pledgor shall be permitted to assign this Agreement or any interest
herein or in the Collateral, or any part thereof, or otherwise pledge, encumber
or grant any option with respect to the Collateral, or any part thereof, or any
cash or property held by the Agent as Collateral under this Agreement. All
references herein to the Agent shall include any successor thereof, each Lender
and any other obligees from time to time of the Obligations.
_ Swap Agreements. All Hedging Obligations of any Pledgor shall be
deemed to be Secured Obligations secured hereby, and each Lender or affiliate of
a Lender party to any Swap Agreement shall be deemed to be a Secured Party
hereunder.
_ Severability. In case any Lien, security interest or other right of
any Secured Party or any provision hereof shall be held to be invalid, illegal
or unenforceable, such invalidity, illegality or unenforceability shall not
affect any other Lien, security interest or other right granted hereby or
provision hereof.
_ Counterparts. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
_ Termination. This Agreement and all obligations of the Pledgors
hereunder shall terminate without delivery of any instrument or performance of
any act by any party on the Facility Termination Date. Upon such termination of
this Agreement, the Agent shall, at the sole expense of the Pledgors, deliver to
each Pledgor the certificates evidencing their respective shares of Pledged
Stock (and any other property received as a dividend or distribution or
otherwise in respect of such Pledged Stock), together with any cash then
constituting the Collateral, not then sold or otherwise disposed of in
accordance with the provisions hereof and take such further actions as may be
necessary to effect the same.
_ Indemnification. Each Pledgor hereby covenants and agrees to pay,
indemnify, and hold the Agent and each Lender harmless from and against any and
all other out-of-pocket liabilities, costs, expenses or disbursements of any
kind or nature whatsoever arising in connection with any claim or litigation by
any Person resulting from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the transactions
contemplated hereby or thereby, or in any respect relating to the Collateral or
any transaction pursuant to which such Pledgor has incurred any Secured
Obligation (all the foregoing, collectively, the "Indemnified Liabilities");
provided, however, that the Pledgor shall have no obligation hereunder with
respect to Indemnified Liabilities arising from the willful misconduct or gross
negligence of the Agent or any Lender. The agreements in this subsection shall
survive repayment of all Secured Obligations, termination or expiration of this
Agreement and occurrence of the Facility Termination Date.
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_ Notice. Any notice shall be conclusively deemed to have been received
by any party hereto and be effective on the day on which delivered to such party
(against receipt therefor) at the address set forth below or such other address
as such party shall specify to the other parties in writing (or, in the case of
telephonic notice or notice by telecopy (where the receipt of such message is
verified by return) expressly provided for hereunder, when received at such
telephone or telecopy number as may from time to time be specified in written
notice to the other parties hereto or otherwise received), or if sent prepaid by
certified or registered mail return receipt requested on the fifth Business Day
after the day on which mailed, or if sent prepaid by a national overnight
courier service, on the first Business Day after the day on which delivered to
such service against receipt therefor if delivered to such service prior to the
deadline of such service for next Business Day delivery, addressed to such party
at said address:
(a) if to any Pledgor: c/o Windmere-Durable Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent: NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: NationsBank, National Association
NationsBank Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 20.
_ Governing Law; Waivers.
__"____` THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
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(b) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT
MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE
JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY PROVIDED
IN SECTION 20 HEREOF OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF SUCH PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, THE
JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER, BY
REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY
AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH
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ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR
PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
_ Registration of Assignment. ▇.▇. ▇▇▇▇▇, LLC, as the general partner
of the Partnership, is and acts as the registrar of the Partnership for all
purposes of the registration of ownership and transfers of interests in the
Partnership (the "Registrar"). The registration records of the Partnership
maintained by and in the possession of the Registrar (the "Registration Books")
are the only records maintained to evidence the ownership and transfer of
ownership or other interests, including security interests, in the Partnership.
There is no registration of record or to the knowledge of any Pledgor any claim
with respect thereto, of any lien, security interest or other encumbrance or
other interest or restriction of transfer on the Partnership Interest, other
than the assignment in favor of the Agent. The assignment granted in the
Partnership Interests hereby in favor of the Agent has been duly entered in the
registration books maintained for such purpose by the Registrar and the
Registrar has delivered to the Agent its Certificate, in the form of Exhibit B
hereto, of even date herewith to such effect. The Registrar shall not cause,
suffer or permit to occur any transfer of record of the Partnership Interest or
any interest therein except in accordance with the prior written consent of the
Agent. Upon receipt of written notice by the Agent that an Event of Default has
occurred and that all or any part of the Partnership Interest or any interest
therein have been sold, assigned or otherwise disposed of by the Agent in
accordance with the terms of this Agreement, and identifying the Agent(s) and
interest(s) assigned, the Registrar shall forthwith cause the Partnership
Interest to be reregistered as appropriate to duly reflect of record such
transfers. The Registrar shall not resign or retire or permit its removal except
upon circumstances where the successor registrar shall provide to the Agent its
written irrevocable acknowledgment of and covenant to comply with the terms of
this Section 22.
_ Additional Shares and Interests. If the Pledgor shall acquire or hold
(a) any additional shares of capital stock of, or other partnership, ownership
or equity interest in, any Person listed on Schedule I hereto or (b) any shares
of capital stock of, or any other partnership, ownership or equity interest in,
any Subsidiary not listed on Schedule I hereto, which stock or partnership or
other ownership or equity interests are required to be subject to a Pledge
Agreement pursuant to the terms of Article V or Section 9.21 of the Credit
Agreement (any such shares or other ownership or equity interests described in
clauses (a) or (b) above being referred to herein as the "Additional
Interests"), the Pledgor shall deliver to the Agent for the benefit of the
Secured Parties (i) a revised Schedule I hereto reflecting the ownership and
pledge of such Additional Interests and (ii) a Pledge Agreement Supplement in
the form of Exhibit A hereto with respect to such Additional Interests duly
completed and signed by the Pledgor. The Pledgor shall comply with the
requirements of this Section 23 concurrently with the acquisition of any such
Additional Interests in the case of shares and other ownership or equity
interests described in clause (a) above, and within the time period specified in
Article V or Section 9.21 of the Credit Agreement with respect to shares and
other partnership, ownership or equity interests described in clause (b) above.
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[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties have duly executed this Stock Pledge
Agreement on the day and year first written above.
PLEDGORS:
WINDMERE-DURABLE HOLDINGS, INC.
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
WINDMERE CORPORATION
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Vice President Finance
WINDMERE HOLDINGS CORPORATION
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
HOUSEHOLD PRODUCTS, INC.
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP DELAWARE, INC.
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
STOCK PLEDGE AGREEMENT
193
HP AMERICAS, INC.
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
STOCK PLEDGE AGREEMENT
194
SCHEDULE I
No. of No. of No. of No. of Certificate
Shares Shares Shares Shares Nos. for
Name of Subsidiary Class of Stock Authorized Issued Outstanding Pledged Pledged Shares
------------------ -------------- ---------- ------ ----------- ------- --------------
Windmere-Durable Holdings, Inc.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
195
EXHIBIT A
PLEDGE AGREEMENT SUPPLEMENT
THIS PLEDGE AGREEMENT SUPPLEMENT (this "Supplement"), dated as of
______________, ______ is made by and between ___________________________,
_____________________________ (the "Pledgor"), and NATIONSBANK, NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States, as agent (the "Agent") for each of the lenders (the
"Lenders" and together with the Agent, the "Secured Parties") now or hereafter
party to the Credit Agreement dated as of June ___, 1998 among such Lenders, the
Agent and Windmere-Durable Holdings, Inc.. All capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned thereto in
the Pledge Agreement (as defined below).
WHEREAS, the Pledgor is required under the terms of the Credit
Agreement and that certain Pledge Agreement dated as of June ___, 1998 by the
Pledgor and certain affiliates of the Pledgor in favor of the Agent for the
benefit of the Secured Parties (the "Pledge Agreement") to cause certain shares
of capital stock or other equity or ownership interests held by it and listed on
Annex A to this Supplement (the "Additional Interests") to become subject to the
Pledge Agreement; and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Secured Parties was the obligation of the Pledgor to pledge to the Agent for
the benefit of the Secured Parties the Additional Interests, whether then owned
and not required to be subject to a pledge or subsequently acquired or created;
and
WHEREAS, the Secured Parties have required the Pledgor to pledge to the
Agent for the benefit of the Secured Parties all of the Additional Interests in
accordance with the terms of the Credit Agreement and the Pledge Agreement;
NOW, THEREFORE, the Pledgor hereby agrees as follows with the Agent,
for the benefit of the Secured Parties:
1. The Pledgor hereby reaffirms and acknowledges the pledge and
collateral assignment to, and the grant of security interest in, the Additional
Interests contained in the Pledge Agreement and pledges and collaterally assigns
to the Agent for the benefit of the Secured Parties, and grants to the Agent for
the benefit of the Secured Parties a first priority lien and security interest
in, the Additional Interests and all of the following:
(a) all cash, securities, dividends, rights, and other
property at any time and from time to time declared
or distributed in respect of or in exchange for any
or all of the Additional Interests, other than cash
dividends or other distributions permitted to be
retained by the Pledgor under Section 10 of the
Pledge Agreement;
196
(b) all other property hereafter delivered to the Agent
in substitution for or in addition to any of the
foregoing, all certificates and instruments
representing or evidencing such property and all
cash, securities, interest, dividends, rights, and
other property at any time and from time to time
declared or distributed in respect of or in exchange
for any or all of the Additional Interests; and
(c) all proceeds of any of the foregoing.
2. The Pledgor hereby acknowledges, agrees and confirms that, by its
execution of this Supplement, the Additional Interests constitute "Pledged
Interests" under and are subject to the Pledge Agreement. Each of the
representations and warranties with respect to Pledged Interests contained in
the Pledge Agreement is hereby made by the Pledgor with respect to the
Additional Interests. A revised Schedule I to the Pledge Agreement reflecting
the Additional Interests and all other Pledged Interests, together with stock
certificates representing the Additional Interests with undated stock powers
duly executed in blank by the Pledgor, or, if applicable, registrar's pledge
certificates, have been delivered herewith to the Agent.
IN WITNESS WHEREOF, the Pledgor has caused this Supplement to be duly
executed by its authorized officer as of the day and year first above written.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Acknowledged and accepted:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Secured Parties
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
197
SCHEDULE I
Total
Number of
Total Total Shares of
Name of Number Number Class or %
Pledged of Shares of Shares Ownership
Subsidiary Class of of Class of Class Interest Certificate Par Value
Name of Pledgor or Issuer Stock Authorized Outstanding Pledged Number Per Share
--------------- ---------- -------- ---------- ----------- --------- ----------- ---------
198
EXHIBIT B
FORM OF RECEIPT AND CERTIFICATE
OF REGISTRAR AND CONTROL AGREEMENT
The undersigned registrar (in its capacity as such, the "Registrar")
and Anasazi Partners, L.P. (The "Partnership") hereby certify, acknowledge and
agree as follows to and with NATIONSBANK, NATIONAL ASSOCIATION, as agent (the
"Agent"), in connection with (a) that certain Credit Agreement dated as of June
___, 1998, among Windmere-Durable Holdings, Inc. (the "Borrower"), the Agent,
and the lenders from time to time party thereto (the "Lenders" and together with
the Agent, the "Secured Parties") (such agreement, as amended, modified or
supplemented from time to time, being referred to as the "Credit Agreement"),
and (b) the Pledge Agreement dated as of June ___, 1998, by and between the
Pledgor, the Agent and certain other Subsidiaries of the Pledgor (such
agreement, as amended, modified or supplemented from time to time, being
referred to as the "Pledge Agreement"). Except as otherwise set forth herein,
all capitalized terms shall have the definitions given them in the Credit
Agreement.
1. The Registrar is the duly authorized and acting registrar and as
such has sole custody of and is solely responsible for the registration books of
the Partnership.
2. The Pledgor is the 50% partner of the Partnership and its interest
in the Partnership is reflected as such on the registration books of the
Partnership.
3. The Registrar, by execution of this Certificate, acknowledges
receipt of irrevocable instructions and direction from the Pledgor, as a partner
of the Partnership, acknowledged and agreed to by the Partnership, (i) to
register on the registration books of the Partnership the Lien in favor of the
Lenders upon the Partnership Interests (as defined in the Pledge Agreement) as a
first priority lien, and (ii) to otherwise fully comply with the other
provisions contained herein and in the Pledge Agreement, a copy of which has
been received by the Registrar. The execution of this Certificate by ▇.▇. ▇▇▇▇▇
LLC, in its capacity as general partner for and on behalf of the Partnership,
shall constitute such irrevocable instructions and direction.
4. The Lien of the Agent for the benefit of the Lenders (the
"Registered Lien") on the Partnership Interest has been duly registered of
record on the registration books of the Partnership. Except for the Registered
Lien, there is no registration of record of, or to the knowledge of the
Registrar any claim with respect to, any Lien or other interest or restriction
of transfer on the Partnership Interest or any interest therein, or any other
interest in the Partnership the effect of which would be to lessen the
percentage interest in such partnership of Partnership Interest except in
accordance with the prior written consent, or as provided below at the
direction, of the Agent.
199
5. Upon receipt of written notice from the Agent that an Event of
Default has occurred and that all or any part of the Partnership Interest has
been sold, assigned or otherwise transferred by such holder pursuant to the Loan
Documents, and identifying the assignee or assignees and the interest or
interests assigned, the Registrar shall forthwith cause the registration books
of the Partnership to be duly noted to reflect each of such transfers of record.
6. The Partnership agrees that it will comply with instructions
originated by the Agent with respect to the Partnership Interest, without
further consent of the Pledgor.
7. The Registrar shall not resign or retire or permit its removal
except upon circumstances where the successor Registrar shall provide to the
Agent its written irrevocable acknowledgment of each of the above undertakings.
This the ____ day of June, 1998
REGISTRAR:
▇.▇. ▇▇▇▇▇, LLC
By:
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
-------------------------------
PLEDGOR:
WINDMERE-DURABLE HOLDINGS, INC.
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
PARTNERSHIP:
ANASAZI PARTNERS, L.P.
By: ▇.▇. ▇▇▇▇▇, LLC
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
200
EXHIBIT A
PLEDGED INTERESTS
Name of Issuer Owner(s) Percentage Interest
-------------- -------- -------------------
Anasazi Partners, L.P. Windmere-Durable Holdings, Inc. 50%
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
201
EXHIBIT H
FORM OF SECURITY AGREEMENT
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made and entered into as
of June 26, 1998 by WINDMERE-DURABLE HOLDINGS, INC., a Florida corporation (the
"Borrower), and EACH OF THE UNDERSIGNED SUBSIDIARIES OF THE BORROWER (each a
"Guarantor", and collectively with the Borrower, the "Grantors"), and
NATIONSBANK, NATIONAL ASSOCIATION, a national banking association, as Agent (the
"Agent") for each of the lenders (the "Lenders" and collectively with the Agent,
the "Secured Parties") now or hereafter party to the Credit Agreement (as
defined below). All capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned thereto in the Credit Agreement (as
defined below);
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into that
certain Credit Agreement dated as of the date hereof (as amended, supplemented
or otherwise modified as of the date hereof, the "Credit Agreement"); and
WHEREAS, the Guarantors are parties to that certain Guaranty Agreement
(the "Facility Guaranty") dated as of the date hereof pursuant to which each
Guarantor has guarantied the obligations of the Borrower under the Credit
Agreement; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Credit Agreement, the Borrower is willing to grant to the
Agent for the benefit of the Secured Parties a security interest in certain of
its personal property and assets; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Facility Guaranty, each Guarantor is willing to grant to
the Agent for the benefit of the Secured Parties a security interest in certain
of its personal property and assets;
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Loan Documents and in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
_ Grant of Security Interest. As collateral security for the payment
and satisfaction of all Guarantors' Obligations under (and as defined in) the
Facility Guaranty Agreement and all of the Borrower's Obligations under the
Credit Agreement (collectively, the "Secured Obligations"), each Grantor hereby
pledges and assigns to the Agent for the benefit of the Lenders and grants to
the Agent for the benefit of the Lenders a continuing first priority
202
security interest in and to all of the following property of such Grantor,
whether now owned or existing or hereafter acquired or arising and wheresoever
located:
All accounts, accounts receivable, contracts, notes,
bills, acceptances, choses in action, chattel paper, instruments,
documents and other forms of obligations at any time owing to each
Grantor arising out of goods sold or leased or for services rendered by
such Grantor, the proceeds thereof and all of such Grantor's rights
with respect to any goods represented thereby, whether or not
delivered, goods returned by customers and all rights as an unpaid
vendor or lienor, including rights of stoppage in transit and of
recovering possession by proceedings including replevin and
reclamation, together with all customer lists, books and records,
ledger and account cards, computer tapes, software, disks, printouts
and records, whether now in existence or hereafter created, relating
thereto (collectively referred to hereinafter as "Accounts");
All inventory of each Grantor, including without
limitation, all goods manufactured or acquired for sale or lease, and
any piece goods, raw materials, work in process and finished
merchandise, findings or component materials, and all supplies, goods,
incidentals, office supplies, packaging materials and any and all items
used or consumed in the operation of the business of such Grantor or
which may contribute to the finished product or to the sale, promotion
and shipment thereof, in which such Grantor now or at any time
hereafter may have an interest, whether or not the same is in transit
or in the constructive, actual or exclusive occupancy or possession of
such Grantor or is held by such Grantor or by others for such Grantor's
account (collectively referred to hereinafter as "Inventory");
All goods of each Grantor, including without
limitation, all machinery, equipment, parts, supplies, apparatus,
appliances, tools, patterns, molds, dies, blueprints, fittings,
furniture, furnishings, fixtures and articles of tangible personal
property of every description now or hereafter owned by a Grantor or in
which such Grantor may have or may hereafter acquire any interest, at
any location (collectively referred to hereinafter as "Equipment");
All general intangibles of each Grantor in which a
Grantor now has or hereafter acquires any rights, including but not
limited to, causes of action, corporate or business records,
inventions, designs, patents, patent applications, trademarks,
trademark registrations and applications therefor, goodwill, trade
names, trade secrets, trade processes, copyrights, copyright
registrations and applications therefor, licenses, permits, franchises,
customer lists, computer programs, all claims under guaranties, tax
refund claims, rights and claims against carriers and shippers, leases,
claims under insurance policies, all rights to indemnification and all
other intangible personal property and intellectual property of every
kind and nature (collectively referred to hereinafter as "General
Intangibles");
203
All rights now or hereafter accruing to each Grantor
under contracts, leases, agreements or other instruments to perform
services, to hold and use land and facilities, and to enforce all
rights thereunder (collectively referred to hereinafter as "Contract
Rights");
All books and records relating to any of the
Collateral (as hereinafter defined) (including without limitation,
customer data, credit files, computer programs, printouts, and other
computer materials and records of each Grantor pertaining to any of the
foregoing); and
All accessions to, substitutions for and all
replacements, products and proceeds of the foregoing, including without
limitation proceeds of insurance policies insuring the Collateral (as
hereinafter defined).
All of the property and interests in property described in subsections
(a) through (g) and all other property and interests in personal property which
shall, from time to time, secure the Secured Obligations are herein collectively
referred to as the "Collateral."
_ Financing Statements. At the time of execution of this Agreement,
each Grantor shall have furnished the Agent with properly executed financing
statements, amendments and assignments as prescribed by the Uniform Commercial
Code as presently in effect in the states where the Collateral is located,
prepared and approved by the Agent in form and number sufficient for filing
wherever required with respect to the Collateral, in order that the Agent, for
the benefit of the Lenders, shall have a duly perfected security interest of
record in the Collateral, to the extent a security interest in such Collateral
can be perfected by filing a financing statement, following the filing of such
financing statements with the appropriate local and state governmental
authorities, subject only to Permitted Liens. Each Grantor shall execute as
reasonably required by the Agent any additional financing statements or other
documents to effect the same, together with any necessary continuation
statements so long as this Agreement remains in effect.
_ Maintenance of Security Interest. Each Grantor will, from time to
time, upon the request of the Agent, deliver specific assignments of Collateral,
together with such other instruments and documents, financing statements,
amendments thereto, assignments or other writings as the Agent may reasonably
request to carry out the terms of this Agreement or to protect or enforce the
Secured Parties' security interest in the Collateral.
With respect to any and all Collateral to be secured and conveyed under
this Agreement, each Grantor agrees to do and cause to be done all things
necessary to perfect and keep in full force the security interest granted in
favor of the Secured Parties, including, but not limited to, the prompt payment
of all fees and expenses incurred in connection with any filings made to perfect
or continue a security interest in the Collateral in favor of the Agent for the
benefit of the Lenders.
204
Each Grantor agrees to make appropriate entries upon its financial
statements and books and records disclosing the Secured Parties' security
interest granted hereunder.
_ Receipt of Payment. If an Event of Default shall occur and be
continuing and a Grantor (or any of its affiliates, subsidiaries, stockholders,
directors, officers, employees or agents) shall receive any proceeds of
Collateral, including without limitation monies, checks, notes, drafts or any
other items of payment, each Grantor shall hold all such items of payment in
trust for the Secured Parties, and as the property of the Secured Parties,
separate from the funds of such Grantor, and no later than the first Business
Day following the receipt thereof, such Grantor shall cause the same to be
forwarded to the Agent for its custody and possession on behalf of the Lenders
as additional Collateral.
_ Collections; Agent's Right to Notify Account Debtors and to Endorse a
Grantor's Name. Each Grantor hereby authorizes the Agent, on behalf of the
Lenders, at all times after the occurrence and during the continuation of an
Event of Default (a) to open such Grantor's mail and collect any and all amounts
due to such Grantor from Persons obligated on any Accounts ("Account Debtors");
(b) to notify any or all Account Debtors that the Accounts have been assigned to
the Secured Parties and that the Secured Parties have a security interest
therein (provided that the Agent may at any time give such notice to an Account
Debtor that is a department, agency or authority of the United States
government). Each Grantor at all times after the occurrence and during the
continuation of an Acceleration Event (as hereinafter defined) irrevocably
makes, constitutes and appoints the Agent, for the benefit of the Lenders, (and
all Persons designated by the Agent for that purpose) as such Grantor's true and
lawful attorney (and agent-in-fact) to endorse such Grantor's name on any
checks, notes, drafts or any other payment relating to or constituting proceeds
of the Collateral which comes into the Agent's possession or Agent's control,
and deposit the same to the account of the Agent, for the benefit of the
Lenders, on account and for payment of the Secured Obligations and (c) to take
over such Grantor's post office boxes or make other arrangements as the Agent,
on behalf of the Lenders, deems necessary to receive such Grantor's mail,
including notifying the post office authorities to change the address for
delivery of such Grantor's mail to such address as the Agent, may designate. The
Agent shall promptly furnish each Grantor with a copy of any such notice sent
with respect to Accounts of such Grantor pursuant to clause (b) of this Section
5 and each Grantor hereby agrees that any such notice, in the Agent's sole
discretion, may be sent on such Grantor's stationery, in which event such
Grantor shall co-sign such notice with the Agent. For purposes of this
Agreement, "Acceleration Event" means that (a) an Event of Default has occurred
and is continuing and (b) the Secured Obligations have become due and payable
(whether by acceleration, at final maturity or otherwise).
_ Covenants. Each Grantor covenants with the Secured Parties that from
and after the date of this Agreement until termination hereof in accordance with
Section 27 hereof:
Inspection. The Agent (by any of its officers,
employees and agents), on behalf of the Lenders, shall have the right
upon its reasonable request and reasonable prior notice, and at any
reasonable times during such Grantor's usual business hours, to
205
inspect the Collateral, all records related thereto (and to make
extracts or copies from such records), and the premises upon which any
of the Collateral is located, to discuss such Grantor's affairs and
finances with any Person (other than Account Debtors) and to verify
with any Person other than Account Debtors the amount, quality,
quantity, value and condition of, or any other matter relating to, the
Collateral and, if an Event of Default has occurred and is continuing,
to discuss such Grantor's affairs and finances with such Grantor's
Account Debtors and to verify the amount, quality, value and condition
of, or any other matter relating to, the Collateral and such Account
Debtors. After the occurrence and during the continuation of an
Acceleration Event, the Agent may at any time and from time to time
employ and maintain on such Grantor's premises a custodian selected by
the Agent who shall have full authority to do all acts necessary to
protect the Agent's (for the benefit of the Lenders) interest. All
expenses incurred by the Agent, on behalf of the Lenders, by reason of
the employment of such custodian shall be paid by such Grantor, added
to the Secured Obligations and secured by the Collateral.
Assignments, Records and Schedules of Accounts. Each
Grantor shall keep accurate and complete records of its Accounts
("Account Records") and on a monthly basis, such Grantor shall provide
the Agent with a schedule of Accounts in form and substance acceptable
to the Agent describing all Accounts created or acquired by such
Grantor ("Schedule of Accounts"); provided, however, that such
Grantor's failure to execute and deliver any such Schedule of Accounts
shall not affect or limit the Agent's security interest or other rights
in and to any Accounts for the benefit of the Lenders. If requested by
the Agent, each Grantor shall furnish the Agent with copies of proof of
delivery and other documents relating to the Accounts so scheduled,
including without limitation repayment histories and present status
reports (collectively, "Account Documents") and such other matter and
information relating to the status of then existing Accounts as the
Agent shall request. No Grantor shall remove any Account Records or
Account Documents or change its chief executive offices from the
locations set forth in Exhibit A hereto without 30 days prior written
notice to the Agent as provided in Section 20 hereof and delivery to
the Agent by the applicable Grantor prior to such removal of executed
financing statements, amendments and other documents necessary to
maintain the security interests granted hereunder.
Notice Regarding Disputed Accounts. In the event any
amounts due and owing in excess of $1,000,000 are in dispute between
any Account Debtor and a Grantor (which shall include without
limitation any dispute in which an offset claim or counterclaim may
result), such Grantor shall provide the Agent with written notice
thereof as soon as practicable, explaining in detail the reason for the
dispute, all claims related thereto and the amount in controversy.
Change of Trade Styles. No Grantor shall change,
amend, alter, terminate, or cease using its material trade names or
styles under which it sells Inventory as of the date of this Agreement
("Trade Styles"), or use additional Trade Styles, without giving the
Agent at least 30 days' prior written notice and delivery to the Agent
by the
206
applicable Grantor prior to such change, amendment, alteration, or use
of executed financing statements, amendments and other documents
necessary to maintain the security interests granted hereunder.
Safekeeping of Inventory. Each Grantor shall be
responsible for the safekeeping of its Inventory, and, except as set
forth in Section 16 hereof, in no event shall the Agent have any
responsibility for:
___ Any loss or damage to Inventory or destruction
thereof occurring or arising in any manner or fashion from any
cause;
___ Any diminution in the value of Inventory; or
___ Any act or default of any carrier, warehouseman,
bailee or forwarding agency thereof or other Person in any way
dealing with or handling Inventory.
Location, Records and Schedules of Inventory. Each
Grantor shall keep correct and accurate records itemizing and
describing the kind, type, location and quantity of all Inventory, its
cost therefor and the selling price of Inventory held for sale, and the
daily withdrawals therefrom and additions thereto, and shall furnish to
the Agent from time to time at reasonable intervals designated by the
Agent, but not more frequently than once per month prior to an Event of
Default, a current schedule of Inventory ("Schedule of Inventory")
based upon its most recent physical inventory and its daily inventory
records. Each Grantor shall conduct a physical inventory, no less than
annually, and shall furnish to the Agent such other documents and
reports thereof as the Agent shall reasonably request with respect to
the Inventory. Subject to compliance at all times with Sections 9(b),
(c) and (d), no Grantor shall, other than in the ordinary course of
business in connection with its sale, remove any material amount of
Inventory from the locations set forth on Exhibit B hereto to a
location not also set forth on Exhibit B hereto, each of such locations
being owned by a Grantor unless otherwise indicated, without 30 days
prior written notice to the Agent as provided in Section 20 hereof and
delivery to the Agent by the applicable Grantor prior to such removal
of executed financing statements, amendments and other documents
necessary to maintain the security interests granted hereunder.
Returns of Inventory. If any Account Debtor returns
any Inventory to a Grantor after shipment thereof, and such return
generates a credit in excess of $1,000,000 in the aggregate on any
Account or Accounts of such Account Debtor, such Grantor shall notify
the Agent of the same as soon as practicable.
Evidence of Ownership of Equipment. The Grantors, as
soon as practicable following a request therefor by the Agent, shall
deliver to the Agent any and
207
all evidence of ownership of any of the Equipment (including without
limitation certificates of title and applications for title).
Location, Records and Schedules of Equipment. The
Grantors shall maintain accurate, itemized records itemizing and
describing the kind, type, quality, quantity and value of its Equipment
and shall furnish the Agent upon request with a current schedule
containing the foregoing information. No Grantor shall remove any of
the Equipment from the locations set forth in Exhibit C hereto to a
location not also set forth on Exhibit C hereto without at least 30
days' prior written notice to the Agent as provided in Section 20
hereof and delivery to the Agent by the applicable Grantor prior to
such removal of executed financing statements, amendments and other
documents necessary to maintain the security interests granted
hereunder.
Sale or Mortgage of Equipment. Except as permitted by
the Credit Agreement prior to the occurrence and continuance of an
Event of Default, no Grantor shall sell, exchange, lease, mortgage,
encumber, pledge or otherwise dispose of or transfer any of the
Equipment or any part thereof without the prior written consent of the
Agent.
Maintenance of Equipment. Each Grantor shall keep and
maintain its Equipment in good operating condition and repair, ordinary
wear and tear excepted. No Grantor shall permit any such items to
become a fixture to real property (unless such Grantor has granted the
Agent for the benefit of the Lenders a lien on such real property) or
accessions to other personal property.
_ Warranties and Representations Regarding Collateral Generally. Each
Grantor warrants and represents that it is and, except as permitted by the
Credit Agreement, will continue to be the owner of the Collateral hereunder, now
owned and upon the acquisition of the same, free and clear of all Liens, claims,
encumbrances and security interests other than the security interest in favor of
the Agent for the benefit of the Lenders hereunder and Permitted Liens, and that
it will defend such Collateral and any products and proceeds thereof against all
claims and demands of all Persons (other than holders of Permitted Liens) at any
time claiming the same or any interest therein adverse to the Secured Parties.
_ Account Warranties and Representations. With respect to its Accounts,
each Grantor warrants and represents to the Secured Parties that they may rely
on all statements or representations made by such Grantor on or with respect to
any Schedule of Accounts prepared and delivered by it and that:
(a) All Account Records and Account Documents are located only
at such Grantor's locations as set forth on Exhibit A attached hereto
and incorporated herein by reference;
(b) The Accounts are genuine, are in all respects what they
purport to be, are not evidenced by an instrument or document or, if
evidenced by an instrument or document, are only evidenced by one
original instrument or document;
208
(c) The Accounts cover bona fide sales and deliveries of
Inventory usually dealt in by such Grantor, or the rendition by such
Grantor of services, to an Account Debtor in the ordinary course of
business or as permitted by the Credit Agreement;
(d) The amounts of the face value shown on any Schedule of
Accounts or invoice statement delivered to the Agent with respect to
any Account, are actually owing to such Grantor and are not contingent
for any reason; and there are no setoffs, discounts, allowances,
claims, counterclaims or disputes of any kind or description in an
amount greater than $2,500,000 in the aggregate, or greater than
$1,000,000 individually, existing or asserted with respect thereto and
such Grantor has not made any agreement with any Account Debtor
thereunder for any deduction therefrom, except as may be stated in the
Schedule of Accounts and reflected in the calculation of the face value
of each respective invoice related thereto;
(e) Except for conditions generally applicable to such
Grantor's industry and markets, there are no facts, events, or
occurrences known to such Grantor pertaining particularly to any
Accounts which are reasonably expected to materially impair in any way
the validity, collectibility or enforcement of Accounts that would
reasonably be likely, in the aggregate, to be of material economic
value, or in the aggregate materially reduce the amount payable
thereunder from the amount of the invoice face value shown on any
Schedule of Accounts, and on all contracts, invoices and statements
delivered to the Agent, with respect thereto;
(f) The goods or services giving rise thereto are not, and
were not at the time of the sale or performance thereof, subject to any
Lien, claim, encumbrance or security interest, except those of the
Secured Parties and those removed or terminated prior to the date
hereof and Permitted Liens;
(g) The Accounts have not been pledged to any Person other
than to the Secured Parties under this Agreement and will be owned by
such Grantor free and clear of any Liens, claims, encumbrances or
security interests except Permitted Liens;
(h) The Secured Parties' security interest therein will not be
subject to any offset, deduction, counterclaim, Lien or other adverse
condition, other than Permitted Liens; and
(i) The location of its chief executive office and any state
in which it (i) has a place of business in only one county of such
state or (ii) resides in such state (within the meaning of the
applicable Uniform Commercial Code) but does not have any place of
business in such state, is set forth on Exhibit A attached hereto and
incorporated herein by reference and each Grantor shall deliver to the
Agent not less than 30 days written notice prior to any change of such
location or status of places of business or residency.
209
_ Inventory Warranties and Representations. With respect to its
Inventory, each Grantor warrants and represents to the Secured Parties that they
may rely on all statements or representations made by such Grantor on or with
respect to any Inventory and that:
(a) All Inventory, other than Inventory consisting of samples
utilized by salespeople or otherwise having a reasonable value of less
than $200,000 in the aggregate, is located only at such Grantor's
locations as set forth on Exhibit B attached hereto and incorporated
herein by reference;
(b) None of its Inventory is or will be subject to any Lien,
claim, encumbrance or security interest whatsoever, except for the
security interest of the Secured Parties and Permitted Liens;
(c) Except for locations set forth on Exhibit B, no Inventory
of such Grantor that would reasonably be likely, in the aggregate with
the Inventory of all Grantors, to be of value in excess of $500,000 is,
and shall not at any time or times hereafter be, kept at any location
that is leased by the Grantor, stored with a bailee, warehouseman, or
similar party without the Agent's prior written consent and, if the
Agent gives such consent, such Grantor will concurrently therewith
cause any such bailee, warehouseman, or similar party to issue and
deliver to the Agent upon its request therefor, in form and substance
reasonably acceptable to the Agent, landlord waivers, warehouse
receipts therefor in the Agent's name and take such other action and be
party to such document as deemed necessary or prudent by the Agent to
maintain the security interest of the Lenders in such Inventory;
(d) No Inventory is, and shall not at any time or times
hereafter be, under consignment to any Person, the value of which, when
aggregated with all other Inventory under consignment of such Grantor
and all other Grantors, would exceed $2,000,000; and
_ Equipment Representations and Warranties. With respect to its
Equipment, each Grantor warrants and represents to the Secured Parties that they
may rely on all statements or representations made by such Grantor on or with
respect to any Equipment and that:
(a) All Equipment is located only at such Grantor's locations
set forth in Exhibit C hereto;
(b) None of its Equipment is or will be subject to any Lien,
claim, encumbrance or security interest whatsoever, except for the
security interest of the Secured Parties and Permitted Liens;
(c) No Equipment of such Grantor is at or shall be kept at any
location that is leased by such Grantor from any other Person unless
such location and lessee is set forth on Exhibit C hereto and such
lessee waives its rights with respect to such Equipment in form and
substance acceptable to the Agent.
_ Casualty and Liability Insurance Required.
210
Each Grantor will keep the Collateral continuously
insured against such risks as are customarily insured against by
businesses of like size and type engaged in the same or similar
operations including, without limiting the generality of any other
covenant herein contained:
___ casualty insurance on the Inventory and the
Equipment in an amount not less than the full insurable value
thereof, against loss or damage by theft, fire and lightning
and other hazards ordinarily included under uniform broad form
standard extended coverage policies, limited only as may be
provided in the standard broad form of extended coverage
endorsement at the time in use in the states in which the
Collateral is located;
___ comprehensive general liability insurance
against claims for bodily injury, death or property damage
occurring with or about such Collateral (such coverage to
include provisions waiving subrogation against the Secured
Parties), with Agent and Lenders as additional insured
parties, in amounts as shall be reasonably satisfactory to
Agent;
___ liability insurance with respect to the
operation of its facilities under the workers' compensation
laws of the states in which such Collateral is located; and
___ business interruption insurance.
Each insurance policy obtained in satisfaction of the
requirements of Section 11(a) hereof:
___ may be provided by blanket policies now or
hereafter maintained by each Grantor or the Borrower;
___ shall be issued by such insurer (or insurers)
as shall be financially responsible, of recognized standing
and reasonably acceptable to the Agent;
___ shall be in such form and have such provisions
(including without limitation the loss payable clause, the
waiver of subrogation clause, the deductible amount, if any,
and the standard mortgagee endorsement clause), as are
generally considered standard provisions for the type of
insurance involved and are reasonably acceptable in all
respects to the Agent;
___ shall prohibit cancellation or substantial
modification, termination or lapse in coverage by the insurer
without at least 30 days' prior written notice to the Agent,
except for non-payment of premium, in which case such policies
shall provide ten (10) days' prior written notice;
211
___ without limiting the generality of the
foregoing, all insurance policies where applicable under
Section 11(a) carried on the Collateral shall name the Agent,
for the benefit of the Lenders, as loss payee and the Agent
and the Lenders as additional parties insured.
Prior to expiration of any such policy, such Grantor
shall furnish the Agent with evidence satisfactory to the Agent that
the policy or certificate has been renewed or replaced or is no longer
required by this Agreement.
Each Grantor hereby irrevocably makes, constitutes
and appoints the Agent (and all officers, employees or agents
designated by the Agent), for the benefit of the Lenders, effective
upon the occurrence and during the continuance of an Acceleration
Event, as such Grantor's true and lawful attorney (and agent-in-fact)
for the purpose of making, settling and adjusting claims under such
policies of insurance, endorsing the name of such Grantor on any check,
draft, instrument or other item or payment for the proceeds of such
policies of insurance and for making all determinations and decisions
with respect to such policies of insurance.
In the event such Grantor shall fail to maintain, or
fail to cause to be maintained, the full insurance coverage required
hereunder or shall fail to keep any of its Collateral in good repair
and good operating condition, the Agent may (but shall be under no
obligation to), without waiving or releasing any Secured Obligation or
Event of Default by such Grantor hereunder, contract for the required
policies of insurance and pay the premiums on the same or make any
required repairs, renewals and replacements; and all sums so disbursed
by Agent, including reasonable attorneys' fees, court costs, expenses
and other charges related thereto, shall be payable on demand by such
Grantor to the Agent and shall be additional Secured Obligations
secured by the Collateral.
The Net Proceeds of the insurance carried pursuant to
the provisions of Sections 11(a)(ii) and 11(a)(iii) hereof shall be
applied by such Grantor toward extinguishment of the defect or claim or
satisfaction of the liability with respect to which such insurance
proceeds may be paid.
The Net Proceeds of the insurance carried with
respect to the Collateral pursuant to the provisions of Section
11(a)(i) hereof shall be paid to such Grantor and applied in accordance
with Section 2.6(e) of the Credit Agreement;
"Net Proceeds" when used with respect to any
insurance proceeds shall mean the gross proceeds from such proceeds,
award or other amount, less all taxes, fees and responsible expenses
incurred in the realization thereof.
In case of any material damage to or destruction of
all or any material part of the Collateral pledged hereunder by a
Grantor, such Grantor shall give prompt notice thereof to the Agent.
Each such notice shall describe generally the nature and extent of
212
such damage, destruction, taking, loss, proceeding or negotiations.
Each Grantor is hereby authorized and empowered to adjust or compromise
any loss under any such insurance.
_ Events of Default. It is understood and agreed that the occurrence of
any one or more of the following shall constitute an "Event of Default"
hereunder and shall entitle the Agent, for the benefit of the Lenders, to take
such actions as are elsewhere provided in this Agreement in respect of Events of
Default: (a) an "Event of Default" as defined in the Credit Agreement shall have
occurred and be continuing; or (b) any representation or warranty made by a
Grantor herein, in the Credit Agreement in the Facility Guaranty or in any other
existing or future agreement with any of the Secured Parties shall prove to have
been false in any material respect when made; or (c) any covenant made by a
Grantor herein (other than those covenants contained in Sections 6(a) hereof) is
breached, violated, or not complied with and not cured within 30 days after
notice thereof from any of the Secured Parties; provided, that any breach,
violation or non-compliance with any covenant contained in Section 6(a) hereof
shall immediately result in an Event of Default; or (d) any material uninsured
damage to or loss, theft or destruction of any of the Collateral shall occur.
_ Rights and Remedies Upon Acceleration Event. Upon and during the
continuation of an Acceleration Event, the Agent shall have the following rights
and remedies on behalf of the Lenders in addition to any rights and remedies set
forth elsewhere in this Agreement, all of which may be exercised with or, if
allowed by law, without notice to a Grantor:
All of the rights and remedies of a secured party
under the Uniform Commercial Code of the state where such rights and
remedies are asserted, or under other applicable law, all of which
rights and remedies shall be cumulative, and none of which shall be
exclusive, to the extent permitted by law, in addition to any other
rights and remedies contained in this Agreement, the Facility Guaranty,
the Credit Agreement or any other Loan Document;
The right to foreclose the Liens and security
instruments created under this Agreement by any available judicial
procedure or without judicial process;
The right to (i) enter upon the premises of a Grantor
through self-help and without judicial process, without first obtaining
a final judgment or giving such Grantor notice and opportunity for a
hearing on the validity of the Agent's claim and without any obligation
to pay rent to such Grantor, or any other place or places where any
Collateral is located and kept, and remove the Collateral therefrom to
the premises of the Agent or any agent of the Agent, for such time as
the Agent may desire, in order effectively to collect or liquidate the
Collateral, and/or (ii) require such Grantor to assemble the Collateral
and make it available to the Agent at a place to be designated by the
Agent that is reasonably convenient to both parties;
213
The right to sell, assign, lease or to otherwise
dispose of all or any Collateral in its then existing condition, or
after any further manufacturing or processing thereof, at public or
private sale or sales, with such notice as may be required by law, in
lots or in bulk, for cash or on credit, with or without representations
and warranties, all as the Agent, in its sole discretion, may deem
advisable. The Agent shall have the right to conduct such sales on a
Grantor's premises or elsewhere and shall have the right to use a
Grantor's premises without charge for such sales for such time or times
as the Agent may see fit. The Agent may, if it deems it reasonable,
postpone or adjourn any sale of the Collateral from time to time by an
announcement at the time and place of such postponed or adjourned sale,
and such sale may, without further notice, be made at the time and
place to which it was so adjourned. Each Grantor agrees that the Agent
has no obligation to preserve rights to the Collateral against prior
parties or to ▇▇▇▇▇▇▇▇ any Collateral for the benefit of any Person.
The Agent is hereby granted a license or other right to use, without
charge, each Grantor's labels, patents, copyrights, rights of use of
any name, trade secrets, trade names, trademarks and advertising
matter, or any property of a similar nature, as it pertains to the
Collateral, in completing production of, advertising for sale and
selling any Collateral and a Grantor's rights under any license and any
franchise agreement shall inure to the Agent's benefit. If any of the
Collateral shall require repairs, maintenance, preparation or the like,
or is in process or other unfinished state, the Agent shall have the
right, but shall not be obligated, to perform such repairs,
maintenance, preparation, processing or completion of manufacturing for
the purpose of putting the same in such saleable form as the Agent
shall deem appropriate, but the Agent shall have the right to sell or
dispose of the Collateral without such processing. In addition, each
Grantor agrees that in the event notice is necessary under applicable
law, written notice sent to such Grantor by overnight courier in the
manner specified herein ten (10) days prior to the date of public sale
of any of the Collateral or prior to the date after which any private
sale or other disposition of the Collateral will be made shall
constitute commercially reasonable notice to such Grantor. All notice
is hereby waived with respect to any of the Collateral which threatens
to decline speedily in value or is of a type customarily sold on a
recognized market. The Agent may purchase all or any part of the
Collateral at public or, if permitted by law, private sale, free from
any right of redemption which is hereby expressly waived by such
Grantor and, in lieu of actual payment of such purchase price, may set
off the amount of such price against the Secured Obligations. The net
cash proceeds resulting from the collection, liquidation, sale, lease
or other disposition of the Collateral shall be applied first to the
expenses (including all attorneys' fees) of retaking, holding, storing,
processing and preparing for sale, selling, collecting, liquidating and
the like, and then to the satisfaction of all Secured Obligations in
accordance with Section 11.5 of the Credit Agreement. Any sale or other
disposition of the Collateral and the possession thereof by the Agent
shall be in compliance with all provisions of applicable law (including
applicable provisions of the Uniform Commercial Code). Each Grantor
shall be liable to the Secured Parties and shall pay to the Secured
Parties, on demand any deficiency which may remain after such sale,
disposition, collection or liquidation of the Collateral. The Agent
shall remit to such Grantor or other
214
Person entitled thereto any surplus remaining after this Agreement has
been terminated in accordance with Section 27 hereof.
_ Anti-Marshalling Provisions. The right is hereby given by each
Grantor to the Agent, for the benefit of the Lenders, to make releases (whether
in whole or in part) of all or any part of the Collateral agreeable to the Agent
without notice to, or the consent, approval or agreement of other parties and
interests, including junior lienors, which releases shall not impair in any
manner the validity of or priority of the Liens and security interests in the
remaining Collateral conferred under such documents, nor release such Grantor
from personal liability for the Secured Obligations hereby secured.
Notwithstanding the existence of any other security interest in the Collateral
held by the Agent, for the benefit of the Lenders, the Agent shall have the
right to determine the order in which any or all of the Collateral shall be
subjected to the remedies provided in this Agreement. The proceeds realized upon
the exercise of the remedies provided herein shall be applied by the Agent, for
the benefit of the Lenders, in the manner herein provided. Each Grantor hereby
waives any and all right to require the marshalling of assets in connection with
the exercise of any of the remedies permitted by applicable law or provided
herein.
_ Appointment of Agent as a Grantor's Lawful Attorney. Without
limitation of any other provision of this Agreement, upon and after an
Acceleration Event, each Grantor irrevocably designates, makes, constitutes and
appoints the Agent (and all Persons designated by the Agent), for the benefit of
the Lenders, as such Grantor's true and lawful attorney (and agent-in-fact) to
take all actions and to do all things required to be taken or done by such
Grantor under this Agreement. All acts of the Agent or its designee taken
pursuant to this Section 15 are hereby ratified and confirmed and the Agent or
its designee shall not be liable for any acts of omission or commission nor for
any error of judgment or mistake of fact or law, other than as a result of its
gross negligence or willful misconduct. This power, being coupled with an
interest, is irrevocable by such Grantor until this Agreement has been
terminated in accordance with Section 27 hereof.
_ Rights and Remedies Cumulative; Non-Waiver; Etc. The enumeration of
the rights and remedies of the Secured Parties set forth in this Agreement is
not intended to be exhaustive and the exercise by any Secured Party of any right
or remedy shall not preclude the exercise of any other rights or remedies, all
of which shall be cumulative, and shall be in addition to any other right or
remedy given hereunder, or under any other agreement between a Grantor and the
Secured Parties or which may now or hereafter exist in law or in equity or by
suit or otherwise. No delay or failure to take action on the part of any Secured
Party in exercising any right, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
privilege preclude other or further exercise thereof or the exercise of any
other right, power or privilege or shall be construed to be a waiver of any
Event of Default. No waiver by a party hereunder shall be effective unless it is
in writing and signed by the party making such waiver, and then only to the
extent specifically stated in such writing. No course of dealing between a
Grantor and the Secured Parties or the Secured Parties' agents or employees
shall be effective to change, modify or discharge any provision of this
Agreement or to constitute
215
a waiver of any Event of Default. The Agent shall not have any liability for any
error, omission or delay of any kind occurring in the handling or liquidation of
the Collateral or for any damages resulting therefrom, other than as a result of
its gross negligence or willful misconduct.
_ Supplemental Documentation. At the Agent's request, each Grantor
shall execute and deliver to the Agent, at any time or times hereafter, all
documents, instruments and other written matter that the Agent may request to
perfect and maintain perfected the Secured Parties' security interest in the
Collateral, in form and substance acceptable to the Agent, and pay all charges,
expenses and fees the Agent may reasonably incur in filing any of such
documents, and all taxes relating thereto. Each Grantor agrees that a carbon,
photographic, photostatic, or other reproduction of this Agreement or a
financing statement is sufficient as a financing statement and may be filed by
the Agent in any filing office.
_ Waivers. In addition to the other waivers contained herein, each
Grantor hereby expressly waives, to the extent permitted by law, presentment for
payment, demand, protest, notice of demand, notice of protest, notice of default
or dishonor, notice of payments and nonpayments and all other notices and
consents to any action taken by the Agent unless expressly required by this
Agreement.
_ Trade Names. Each Grantor represents that the only trade name(s) or
style(s) used by such Grantor are as set forth on Exhibit D, next to the name of
such Grantor.
_ Notice. Any notice shall be conclusively deemed to have been received
by any party hereto and be effective on the day on which delivered to such party
(against receipt therefor) at the address set forth below or such other address
as such party shall specify to the other parties in writing (or, in the case of
telephonic notice or notice by telecopy (where the receipt of such message is
verified by return) expressly provided for hereunder, when received at such
telephone or telecopy number as may from time to time be specified in written
notice to the other parties hereto or otherwise received), or if sent prepaid by
certified or registered mail return receipt requested on the fifth Business Day
after the day on which mailed, or if sent prepaid by a national overnight
courier service, on the first Business Day after the day on which delivered to
such service against receipt therefor if delivered to such service prior to the
deadline of such service for next Business Day delivery, addressed to such party
at said address:
(a) if to any Grantor: c/o Windmere-Durable Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent: NationsBank, National Association
Independence Center, 15th Floor
NC1-001-15-04
216
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: NationsBank, National Association
NationsBank Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 20.
_ Definitions. All terms used herein and not otherwise defined shall be
defined in accordance with the appropriate definitions appearing in the Uniform
Commercial Code as in effect in New York, and such definitions are hereby
incorporated herein by reference and made a part hereof.
_ Entire Agreement. This Agreement, together with the Credit Agreement,
the Facility Guaranty and other Loan Documents, constitutes and expresses the
entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof. Neither this Agreement nor any portion or provision hereof may be
changed, altered, modified, supplemented, discharged, canceled, terminated, or
amended orally or in any manner other than by an agreement, in writing signed by
the parties hereto.
_ Swap Agreements. All Hedging Obligations of any Grantor shall be
deemed to be Secured Obligations secured hereby, and each Lender or affiliate of
a Lender party to any Swap Agreement shall be deemed to be a Secured Party
hereunder.
_ Severability. The provisions of this Agreement are independent of and
separable from each other. If any provision hereof shall for any reason be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity or enforceability of any other provision hereof, but this Agreement
shall be construed as if such invalid or unenforceable provision had never been
contained herein.
_ Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor, and the rights, remedies, powers, and
privileges of the Agent hereunder shall inure to the benefit of the successors
and assigns of the Agent; provided,
217
however, that no Grantor shall make any assignment hereof without the prior
written consent of the Agent.
_ Counterparts. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
_ Termination; Release. On the Facility Termination Date, this
Agreement and all obligations of each Grantor hereunder shall terminate without
delivery of any instrument or performance of any act by any party, and the
Collateral shall automatically be released from the Liens created by this
Agreement and all rights to such Collateral shall automatically revert to such
Grantor. Notwithstanding the immediately preceding sentence, upon such
termination of this Agreement, the Agent shall reassign and redeliver such
Collateral then held by or for the Agent and execute and deliver to such Grantor
such documents as such Grantor shall reasonably request to evidence such
termination.
_ Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES
AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY
BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH PARTY EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE
VENUE OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE
BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED
OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY
PROVIDED BY SECTION 20 HEREOF, OR BY ANY OTHER METHOD OF SERVICE
PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW
YORK.
218
NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF
SHALL PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY PARTY OR ANY OF SUCH
PARTY'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT
PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND
EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING,
THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER,
BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY
AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND
EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
[Signature pages follow]
219
IN WITNESS WHEREOF, the parties have duly executed this Security
Agreement on the day and year first written above.
GRANTORS:
WINDMERE-DURABLE HOLDINGS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
WINDMERE CORPORATION
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
WINDMERE HOLDINGS CORPORATION
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WINDMERE HOLDINGS CORPORATION II
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WINDMERE FAN PRODUCTS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SECURITY AGREEMENT
Signature Page H-1 of 4
220
JERDON PRODUCTS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CONSUMER PRODUCTS AMERICAS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EDI MASTERS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WINDMERE INNOVATIVE PET PRODUCTS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BAY BOOKS & TAPES, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
SECURITY AGREEMENT
Signature Page H-2 of 4
221
FORTUNE PRODUCTS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
HOUSEHOLD PRODUCTS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP DELAWARE, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP AMERICAS, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HPG LLC
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
SECURITY AGREEMENT
Signature Page H-3 of 4
222
HP INTELLECTUAL CORP
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WD DELAWARE, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WD DELAWARE II, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
SECURITY AGREEMENT
Signature Page H-4 of 4
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EXHIBIT A
Location of Accounts
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EXHIBIT B
Location of Inventory
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EXHIBIT C
Location of Equipment
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EXHIBIT D
Trade Names and Styles
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EXHIBIT I
FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT
INTELLECTUAL PROPERTY SECURITY AGREEMENT
THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT (this "Agreement") is
made as of June 26, 1998 by and among WINDMERE-DURABLE HOLDINGS, INC., a Florida
corporation (the "Borrower"), and CERTAIN SUBSIDIARIES OF THE BORROWER PARTY
HERETO (each a "Guarantor" and collectively with the Borrower, the "Grantors"),
and NATIONSBANK, NATIONAL ASSOCIATION, a national banking association, as Agent
(the "Agent") for each of the lenders (the "Lenders" and collectively with the
Agent, the "Secured Parties") now or hereafter party to the Credit Agreement (as
defined below). All capitalized terms used but not otherwise defined herein
shall have the respective meanings assigned thereto in the Credit Agreement (as
defined below);
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into that
certain Credit Agreement dated as of the date hereof among the Borrower, the
Agent and the Lenders (as from time to time amended, supplemented or replaced,
the "Credit Agreement"); and
WHEREAS, the Guarantors are parties to that certain Guaranty Agreement
(the "Facility Guaranty") dated as of the date hereof pursuant to which each
Guarantor has guarantied the obligations of the Borrower under the Credit
Agreement; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Credit Agreement, the Borrower is willing to grant to the
Agent for the benefit of the Secured Parties a security interest in certain of
its intangible personal property and assets; and
WHEREAS, as collateral security for payment and performance of its
obligations under the Facility Guaranty, each Guarantor is willing to grant to
the Agent for the benefit of the Secured Parties of a security interest in
certain of its intangible personal property and assets;
NOW, THEREFORE, in order to induce the Secured Parties to enter into
the Loan Documents and in consideration of the premises and the mutual covenants
contained herein, the parties hereto hereby agree as follows:
Section _ Grant of Security. Each Grantor hereby collaterally grants to
the Agent for the benefit of the Secured Parties a security interest in all of
the following (collectively, the "Collateral"):
all of such Grantor's right, title and interest,
whether now owned or hereafter acquired, in and to all United States
and foreign patents and patent applications
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(including without limitation the patents and patent applications
identified on Schedule I attached hereto and incorporated herein by
reference) and including the right to recover for all past, present and
future infringements thereof and all reissues, divisions,
continuations, continuations-in-part, substitutes, renewals, and
extensions thereof, all improvements thereon, and all other rights of
any kind whatsoever of such Grantor accruing thereunder or pertaining
thereto (collectively, the "Patents");
all of such Grantor's right, title and interest,
whether now owned or hereafter acquired, in and to all United States
and foreign trademarks, trade names, trade dress, service marks,
trademark and service ▇▇▇▇ registrations, and applications for
trademark or service ▇▇▇▇ registration and any renewals thereof
(including without limitation each trademark, trade name, trade dress,
registration and application identified in Schedule II attached hereto
and incorporated herein by reference) and including all income,
royalties, damages and payments now and hereafter due and/or payable
with respect thereto (including without limitation damages for past or
future infringements thereof), the right to ▇▇▇ or otherwise recover
for all past, present and future infringements thereof, all rights
corresponding thereto throughout the world (but only such rights as now
exist or may come to exist under applicable local law) and all other
rights of any kind whatsoever of each Grantor accruing thereunder or
pertaining thereto, together in each case with the goodwill of the
business connected with the use of, and symbolized by, each such
trademark and service ▇▇▇▇ (collectively, the "Trademarks");
all of such Grantor's right, title and interest,
whether now owned or hereafter acquired, in and to all United States
and foreign copyrights and copyright applications (including without
limitation the copyrights and copyright applications identified on
Schedule III attached hereto and incorporated herein by reference) and
including the right to recover for all past, present and future
infringements thereof and all reissues, divisions, continuations,
continuations-in-part, substitutes, renewals, and extensions thereof,
all improvements thereon, and all other rights of any kind whatsoever
of such Grantor accruing thereunder or pertaining thereto
(collectively, the "Copyrights");
Each of the licenses listed on Schedule IV attached
hereto and incorporated herein by reference, (collectively, the
"Licenses")); and
all proceeds of any of the foregoing.
Section _ Security for Obligations. The security interests granted
under this Agreement (the "Security Interests") by each Grantor secure the
payment of all obligations of such Grantor under, in respect of or in connection
with this Agreement, the Credit Agreement, the Facility Guaranty and each other
Loan Document to which such Grantor is or becomes a party (all such obligations
being the "Secured Obligations").
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The Security Interests granted by this Agreement are granted in
conjunction with, and not in limitation of, the security interests granted to
the Agent, for the benefit of the Lenders, in other assets of each Grantor
pursuant to the other Loan Documents.
Section _ Further Assurances.
Each Grantor agrees that from time to time, at the
expense of such Grantor, such Grantor will promptly execute and deliver
all further instruments and documents and take all further action or
that the Agent may reasonably request, in order to (i) continue,
perfect and protect any Security Interest granted or purported to be
granted hereby, (ii) perfect the Secured Parties' Security Interest in
and assign to the Agent, for the benefit of the Lenders, as security
for the repayment and satisfaction of the Secured Obligations, all
Collateral located in any foreign jurisdiction, and (iii) enable the
Secured Parties to exercise and enforce their rights and remedies
hereunder with respect to any part of the Collateral.
Each Grantor hereby authorizes the Agent, on behalf
of the Lenders, upon the occurrence and during the continuation of an
Event of Default, to file, where permitted by law, one or more
financing or continuation statements, and amendments thereto, relative
to all or any part of the Collateral without the signature of such
Grantor. A carbon, photographic or other reproduction of this Agreement
or any financing statement covering the Collateral or any part thereof
shall be sufficient as a financing statement where permitted by law.
Each Grantor will furnish to the Agent, from time to
time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as
the Agent, may reasonably request, all in reasonable detail.
Each Grantor agrees that, should it have or obtain an
ownership interest in any United States or foreign patent or patent
application that is not now identified on Schedule I, any trademark or
trademark application that is not now identified on Schedule II or any
copyright or copyright application that is not now identified on
Schedule III or the License Agreements identified on Schedule IV: (i)
the provisions of this Agreement shall automatically apply to such
item, and such item shall automatically become part of the Collateral
and (ii) such Grantor shall, within three months after acquiring or
becoming aware of such ownership interest, (A) give written notice
thereof to the Agent and, (B) with respect to material Trademarks,
present such Trademarks for proper registration with the the United
States Patent and Trademark Office ("PTO"), (C) with respect to
material Copyrights, present such Copyrights for proper registration
with the United States Copyright Office (the "Copyright Office")and (D)
with respect to patents and patent applications and trademarks and
trademark applications, prepare, execute and file in the PTO or, if
appropriate, in the equivalent agencies in any foreign jurisdiction,
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within the requisite time period, all documents that are known by such
Grantor to be necessary or that the Agent, reasonably requests in order
to perfect the Security Interest of the Secured Parties therein. Each
Grantor authorizes the Agent, on behalf of the Lenders, to execute and
file such a document in the name of such Grantor if such Grantor fails
to do so.
Each Grantor agrees that should any of its Domestic
Subsidiaries (other than a corporation which is a party hereto and
whether now or hereafter existing) obtain any ownership interest in any
United States or foreign patent or patent application, trademarks or
trademark application, trademarks, trade names, trade dress, service
marks, trademark and service ▇▇▇▇ registrations, and applications for
trademark or service ▇▇▇▇ registration and any renewals thereof, such
Grantor shall cause such corporation to become a party to the Facility
Guaranty and a party hereto.
To the extent necessary or economically desirable in
the conduct of its business, each Grantor agrees: (i) to take all
necessary steps in any proceeding before the PTO or any similar office
or agency in any other country or any political subdivision thereof or
in any court, to maintain and pursue each patent application now or
hereafter included in the Collateral and to maintain each patent,
trademark or copyright now or hereafter included in the Collateral,
including the filing of divisional, continuation, continuation-in-part
and substitute applications, the filing of applications for reissue,
renewal or extensions, the payment of maintenance fees, and the
participation in interference, reexamination, opposition and
infringement proceedings; (ii) to take corresponding steps with respect
to material unpatented inventions on which such Grantor is now or
hereafter becomes entitled to seek protection; (iii) to bear any
expenses incurred in connection with such activities; and (iv) not to
abandon any right to file a material patent application, or abandon any
material pending application with respect to any of the Collateral,
without the written consent of the Agent.
No Grantor shall do any act or omit to do any act
whereby any of the Collateral may become dedicated or abandoned, except
where such dedication or abandonment (i) will not adversely affect the
aggregate economic value of the Collateral after giving effect to such
dedication or abandonment or materially adversely affect the business,
condition (financial or otherwise), operations, performance, or
properties of such Grantor individually or of such Grantor and its
Subsidiaries taken as a whole, and (ii) is in the ordinary course of
such Grantor's business. Each Grantor agrees to notify the Agent
promptly and in writing if it learns that any of the Collateral may
become abandoned or dedicated or of any adverse determination or any
development (including without limitation the institution of any
proceeding in the PTO, or in the equivalent agencies in any foreign
jurisdiction, or any court) regarding any material part of the
Collateral.
In the event that any of the Collateral as to which
it has granted the Security Interests is infringed or misappropriated
by a third party, such Grantor shall
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promptly notify the Agent and shall, unless such Grantor shall
reasonably determine that such Collateral would not reasonably be
likely to, in the aggregate, be of material economic value to such
Grantor, take all reasonable steps to terminate the infringement or
misappropriation, and take such other actions as such Grantor shall
deem appropriate under the circumstances to protect such Collateral.
Any expense incurred in connection with such activities shall be borne
by such Grantor.
Each Grantor shall continue to ▇▇▇▇ its products
according to applicable law with the numbers of all appropriate
Patents.
Section _ General Representations and Warranties. Each Grantor
represents and warrants as follows:
It has the right and authority to enter into this
Agreement and to perform its terms.
(b) Set forth on Schedule IV is a list, which is complete and
accurate in all material respects as of the date hereof, of the
Licenses of such Grantor necessary for the conduct of its business as
currently conducted or utilized and material in such Grantor's
operations or materially used in the selling or marketing of such
Grantor's products, including the expiration date of such Licenses.
(c) Each License of such Grantor identified on Schedule IV is
validly subsisting and has not been adjudged invalid or unenforceable,
in whole or in part, and is, to such Grantor's knowledge, valid and
enforceable.
(d) It has not granted any release, covenant not to ▇▇▇, or
non-assertion assurance to any third person, nor allowed any shop right
to arise with respect to any third person, with respect to any part of
the Collateral that would be reasonably likely, in the aggregate, to be
of material economic value.
(e) To the best of Grantors' knowledge and belief, its
products have been marked as required by applicable law with respect to
the Collateral.
(f) The actions contemplated under or in connection with the
Loan Documents will not impair the legal right of such Grantor to use
any of the Collateral.
(g) Except as disclosed to the Lenders in writing prior to the
date of this Agreement, such Grantor has no knowledge of the existence
of any right under any patent, trademark, license agreement, trade
name, trade secret, know-how, confidential research, development and
commercial information, or other proprietary information held by any
other Person that would preclude such Grantor from publishing,
distributing, marketing, selling, or using any product currently made
by it, being made for it or sold or
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used by it, imported by it or exported by it, as the case may be, or to
use any processes currently used by it (except, in each case, to the
extent that such Grantor has granted an exclusive license to another
Person), or materially interfere with the ability of such Grantor to
carry on its business as currently carried on, and such Grantor has no
knowledge of any claim to the contrary that is likely to be made.
(h) Such Grantor has heretofore used consistent standards of
quality in manufacturing, distribution and marketing of each product
sold and provision of each service provided under any Collateral.
(i) To the best of Grantors' knowledge and belief, Grantors'
intellectual property does not infringe upon or violate proprietary
rights of any third parties.
(j) Each Subsidiary that has an material ownership interest in
any material patents, patent applications, copyrights, copyright
applications, trademark, trade name, trade dress, service marks,
trademark or service ▇▇▇▇ registrations or any applications for
trademark or service ▇▇▇▇ registration is a party to this agreement.
Section _ Patent Representations and Warranties. Each Grantor
represents and warrants as follows:
It is the owner of the Patents set forth opposite its
name on Schedule I hereto, free and clear of any Lien, security
interest, option, charge, pledge, assignment (whether conditional or
not), or any other encumbrance except for the security interests
created or permitted by this Agreement or the Credit Agreement and the
Permitted Liens, and no effective financing statement or other
instrument similar in effect covering all or any part of such
Collateral is on file in any recording office, except such as may have
been filed in favor of the Agent, for the benefit of the Lenders.
Set forth on Schedule I is a list, which is complete
and accurate in all material respects as of the date hereof, of all of
the Patents owned by such Grantor necessary for the conduct of its
business as currently conducted or utilized and material in such
Grantor's operations or materially used in the selling or marketing of
such Grantor's products, in each case, the invalidity, termination or
infringement of which would have a Material Adverse Effect.
Each Patent of such Grantor identified on Schedule I
hereto is subsisting and has not been adjudged unpatentable, invalid or
unenforceable, in whole or in part and is, to the knowledge of such
Grantor, patentable, valid and enforceable and each of such Patent
applications has been filed in conformity with applicable rules and
procedures of the PTO and of the equivalent agencies in each applicable
foreign jurisdiction and will be diligently prosecuted in conformity
therewith so as to not improperly become abandoned.
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Section _ Trademark Representations and Warranties. Each Grantor
represents and warrants as follows:
It is the exclusive owner of all right, title and
interest in and to the Trademarks as to which Grantor herein is
granting a security interest, free and clear of any Lien, security
interest, option, charge, pledge, assignment (whether conditional or
not), or covenant, or any other encumbrance, except for the Security
Interests created or permitted by this Agreement or the Credit
Agreement or Permitted Liens. No effective financing statement or other
instrument similar in effect covering all or any part of the Trademarks
purported to be granted by such Grantor hereunder is on file in any
recording office, including, without limitation, the PTO and the
equivalent offices in any foreign jurisdiction, except such as may have
been filed in favor of the Agent, for the benefit of the Lenders.
Set forth on Schedule II is a list, which is complete
and accurate in all material respects as of the date hereof, of all of
the Trademarks owned by such Grantor necessary for the conduct of its
business as currently conducted or utilized and material in such
Grantor's operations or materially used in the selling or marketing of
such Grantor's products.
Each Trademark of such Grantor identified on Schedule
II is validly subsisting and has not been abandoned or adjudged
invalid, unregistrable or unenforceable, in whole or in part, and is,
to such Grantor's knowledge, valid, registrable and enforceable.
Section _ Copyright Representations and Warranties. Each Grantor
represents and warrants as follows:
It is the owner of the all right, title and interest
in and to the Copyrights as to which Grantor herein is granting a
security interest free and clear of any Lien, security interest,
option, charge, pledge, registered user agreement, assignment (whether
conditional or not), or covenant, or any other encumbrance, except for
the Security Interests created or permitted by this Agreement or the
Credit Agreement or Permitted Liens. No effective financing statement
or other instrument similar in effect covering all or any part of the
Copyrights purported to be granted by such Grantor hereunder is on file
in any recording office, including, without limitation, the Copyright
Office and the equivalent offices in any foreign jurisdiction, except
such as may have been filed in favor of the Agent, for the benefit of
the Lenders.
Set forth on Schedule III is a list, which is
complete and accurate in all material respects as of the date hereof,
of all of the registered Copyrights owned by such Grantor necessary for
the conduct of its business as currently conducted or utilized and
material in such Grantor's operations or materially used in the selling
or marketing of such Grantor's products.
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Each Copyright of such Grantor identified on Schedule
III is validly subsisting and has not been abandoned or adjudged
invalid, unregistrable or unenforceable, in whole or in part, and is,
to such Grantor's knowledge, valid, registrable and enforceable.
Section _ Transfers and Other Liens. No Grantor shall:
sell, assign (by operation of law or otherwise) or
otherwise dispose of any of, or grant any option with respect to, the
Collateral, except as permitted by the Credit Agreement, except that
any Grantor may license the Collateral (i) in the ordinary course of
such Grantor's business, or (ii) in connection with a sale of assets in
compliance with the Credit Agreement, provided that such license shall
be on terms reasonably expected to maximize the gain to such Grantor
resulting from the granting of such license. The Agent, for the benefit
of the Lenders, shall execute any documents that such Grantor may
reasonably request in order to permit the Grantor to exercise its right
hereunder to license the Trademarks;
create or suffer to exist any Lien, security interest
or other charge or encumbrance upon or with respect to any of the
Collateral except for the Security Interests created by this Agreement
or other Permitted Liens; or
take any other action in connection with any of the
Collateral that would impair the value of the interest or rights of
such Grantor in the Collateral taken as a whole or that would
materially impair the interest or rights of the Agent for the benefit
of the Lenders.
Section _ Agent Appointed Attorney-in-Fact. Without limiting any other
provision of this Agreement, upon the occurrence and during the continuance of
an Acceleration Event (as hereinafter defined), each Grantor hereby irrevocably
appoints the Agent, for the benefit of the Lenders, as such Grantor's
attorney-in-fact, with full authority in the place and stead of such Grantor and
in the name of such Grantor or otherwise, from time to time in the Agent's
discretion, to take any action and to execute any instrument that the Agent may
deem necessary or advisable to accomplish the purposes of this Agreement,
including without limitation:
to ask, demand, collect, ▇▇▇ for, recover,
compromise, receive and give acquittance and receipts for moneys due
and to become due under or in respect of any of the Collateral;
to receive, endorse and collect any drafts or other
instruments, documents and chattel paper in connection with clause (a)
above;
to file any claims or take any action or institute
any proceedings that the Agent may deem necessary or desirable for the
collection of any of the Collateral or
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otherwise to enforce the rights of the Agent, for the benefit of the
Lenders, with respect to any of the Collateral; and
to execute, in connection with the sale provided for
in Section 13, any endorsement, assignments, or other instruments of
conveyance or transfer with respect to the Collateral.
For purposes of this Agreement, "Acceleration Event" means that (a) an
Event of Default has occurred and is continuing and (b) the Secured Obligations
have become due and payable (whether by acceleration, at final maturity or
otherwise).
Section _ Agent May Perform.
If any Grantor fails to perform any agreement
contained herein, the Agent may itself perform, or cause performance
of, such agreement, and the reasonable expenses of the Agent incurred
in connection therewith shall be payable by such Grantor under Section
14(b) to the fullest extent permitted by applicable law.
The Agent or its designated representatives shall
have the right to the extent reasonably requested and upon reasonable
prior notice, at any reasonable time during normal business hours of
such Grantors and from time to time, to inspect the Grantors' premises
and to examine the Grantors' books, records and operations relating to
the Collateral.
Section _ The Agent's Duties. The powers conferred on the Agent, for
the benefit of the Lenders, hereunder are solely to protect the interest of the
Secured Parties in the Collateral and shall not impose any duty upon it to
exercise any such power neither the Agent nor any Lender shall have any duty as
to any Collateral or as to the taking of any necessary steps to preserve rights
against other parties or any other rights pertaining to any Collateral.
Section _ Events of Default. It is understood and agreed that, with
respect to any Grantor, the occurrence of any one or more of the following shall
constitute an "Event of Default" hereunder with respect to such Grantor and
shall entitle the Agent, for the benefit of the Lenders, to take such actions as
are elsewhere provided in this Agreement in respect of Events of Default:
an "Event of Default" or "Default" as defined in the
Credit Agreement shall have occurred and be continuing with respect to
the Borrower; or
an "Event of Default" or "Default" as defined in the
Facility Guaranty shall have occurred and be continuing with respect to
such Grantor; or
such Grantor shall have failed to pay the Agent all
of the Guarantors' Obligations in accordance with, and as defined in,
the Facility Guaranty on the Business
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Day on which the Agent has demanded such payment in accordance with the
terms of the Facility Guaranty; or
any material representation or warranty made by such
Grantor herein shall prove to have been false in any material respect
when made.
Section _Remedies Upon Acceleration Event. If an Acceleration Event
shall have occurred and be continuing:
The Agent, for the benefit of the Lenders, may
exercise in respect of the Collateral of any defaulting Grantor, in
addition to other rights and remedies provided for herein or otherwise
available to it, all the rights and remedies of a secured party upon
default under the Uniform Commercial Code (the "UCC") and also may (i)
exercise any and all rights and remedies of such Grantor under, in
connection with, or otherwise in respect of, such Collateral, (ii)
require such Grantor to, and each Grantor hereby agrees that it will at
its expense and upon request of the Agent forthwith, assemble all or
part of the documents embodying such Collateral as directed by the
Agent and make it available to the Agent, for the benefit of the
Lenders, at a place to be designated by the Agent that is reasonably
convenient to both the Agent and such Grantor, (iii) occupy any
premises owned or leased by such Grantor where documents embodying such
Collateral or any part thereof are assembled for a reasonable period in
order to effectuate the Agent's rights and remedies hereunder or under
applicable law, without obligation to such Grantor in respect of such
occupation, (iv) license such Collateral or any part thereof, subject
to any pre-existing license and (v) without notice except as specified
below, sell such Collateral or any part thereof in one or more parcels
at public or private sale, at any of the Agent's offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms
as the Agent may deem commercially reasonable. Each Grantor agrees that
at least ten days' notice to such Grantor 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. The Agent shall not be
obligated to make any sale of the 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.
All payments received by any defaulting Grantor under
or in connection with any of such Collateral shall be received in trust
for the benefit of the Lenders, shall be segregated from other funds of
such Grantor and shall be immediately paid over to the Agent, for the
benefit of the Lenders, in the same form as so received (with any
necessary endorsement).
All payments made under or in connection with or
otherwise in respect of the Collateral of any defaulting Grantor, and
all cash proceeds received by the Agent in respect of any sale of,
collection from, or other realization upon all or any part of such
Collateral may, in the discretion of the Agent, be held by the Agent,
for the benefit of the
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Lenders, as collateral for, and then or at any time thereafter applied
(after payment of any amounts payable to the Agent pursuant to Section
14) for the ratable benefit of the Secured Parties against all or any
part of the Secured Obligations, in such order as the Agent shall
elect. Any surplus of such cash or cash proceeds held by the Agent, for
the benefit of the Lenders, and remaining after payment in full of all
the Secured Obligations shall be paid over to the respective Grantors
or to whosoever may be lawfully entitled to receive such surplus. Any
sale or other disposition of the Collateral and the possession thereof
by the Agent shall be in compliance with all provisions of applicable
law (including applicable provisions of the UCC).
Section _ Indemnity and Expenses.
Each Grantor agrees to indemnify the Agent, for the
benefit of the Lenders, from and against any and all claims, losses and
liabilities growing out of or resulting from this Agreement that are
incurred by the Agent (including without limitation enforcement of this
Agreement), except claims, losses or liabilities resulting from the
Agent's gross negligence or willful misconduct.
Each Grantor will upon demand pay to the Agent, for
the benefit of the Lenders, the amount of any and all reasonable
expenses, including the reasonable fees and disbursements of its
counsel and of any experts and agents, that the Agent, for the benefit
of the Lenders, may incur in connection with (i) the custody,
preservation,, or sale of, collection from or other realization upon,
any of the Collateral, (ii) the exercise or enforcement of any of the
rights of the Secured Parties, or (iii) the failure by any Grantor to
perform or observe any of the provisions hereof.
Section _ Security Interest Absolute. All rights of the Secured Parties
in the Security Interests granted hereunder, and each of the Secured
Obligations, shall be absolute and unconditional irrespective of:
any lack of validity or enforceability of the Credit
Agreement or any other Loan Document, or any other agreement or
instrument relating thereto;
any change in the time, manner or place of payment
of, or in any other term of, all or any of the Secured Obligations, or
any other amendment or waiver of or any consent to departure from, the
Credit Agreement or any other Loan Document, including, but not limited
to, (i) an increase or decrease in the amount of the Secured
Obligations and (ii) an amendment of any Loan Document to permit the
Agent or the Lenders or any one or more of them to extend further or
additional credit to the Borrower in any form which credit shall
thereupon be and become subject to the Credit Agreement and the other
Loan Documents as a Secured Obligation;
any taking and holding of collateral or guarantees
(including without limitation any collateral pledged as security for
the Secured Obligations under the
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Security Instruments) for all or any of the Secured Obligations; or any
amendment, alteration, exchange, substitution, transfer, enforcement,
waiver, subordination, termination or release of any collateral or such
guarantees (including without limitation any collateral pledged as
security for the Secured Obligations under the Security Instruments),
or any non-perfection of any collateral, or any consent to departure
from any such guaranty (including without limitation any collateral
pledged as security for the Secured Obligations under the Security
Instruments);
any manner of application of collateral, or proceeds
thereof, to all or any of the Secured Obligations, or the manner of
sale of any collateral;
any consent by the Secured Parties to the change,
restructure or termination of the corporate structure or existence of
the Borrower or any Grantor and any corresponding restructure of the
Secured Obligations, or any other restructure or refinancing of the
Secured Obligations or any portion thereof;
any modification, compromise, settlement or release
by the Secured Parties, by operation of law or otherwise, collection or
other liquidation of the Secured Obligations or the liability of the
Borrower, any Grantor or any guarantor of the Secured Obligations
(including without limitation any guarantor under the Facility
Guaranty, other than the Grantor against which this Agreement is to be
enforced), or of any collateral for the Secured Obligation (including
without limitation any collateral pledged as security for the Secured
Obligations under the Security Instruments), in whole or in part, and
any refusal of payment by the Agent or any Lender in whole or in part,
from any obligor or guarantor (including without limitation any
guarantor under the Facility Guaranty, other than the Grantor against
which this Agreement is sought to be enforced) in connection with any
of the Secured Obligations, whether or not with notice to, or further
assent by, or any reservation of rights against, any Grantor; or
any other circumstance (including without limitation
any statute of limitations) that might otherwise constitute a defense
available to, or a discharge of, the Borrower, any guarantor of the
Borrower's Obligations (including without limitation any Guarantor) or
a Grantor.
The granting of a Security Interest in the Collateral 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 any
Secured Party, upon the insolvency, bankruptcy or reorganization of the Borrower
or any Grantor or otherwise, all as though such payment had not been made.
Section _ Waiver. Each Grantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Secured
Obligations and this Agreement and any requirement that the Secured Parties
protect, secure, perfect or insure any Security Interest or any Collateral
subject thereto or exhaust any right or take any action against
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any Grantor or any other Person (including without limitation any guarantor
under the Facility Guaranty) or any collateral securing payment of the Secured
Obligations (including without limitation any collateral pledged as security for
the Secured Obligations under the Security Instruments).
Section _ Subrogation. Prior to termination of this Agreement in
accordance with the provisions of Section 20(c), no Grantor will exercise any
rights that it may acquire by way of subrogation under this Agreement. If an
amount shall be paid to such Grantor on account of such subrogation rights at
any time prior to termination of this Agreement in accordance with the
provisions of Section 20(c), such amount shall be held in trust for the benefit
of the Lenders and shall forthwith be paid to the Agent, for the benefit of the
Lenders, to be credited and applied upon the Secured Obligations, whether
matured or unmatured, in accordance with the terms of the Credit Agreement and
the Facility Guaranty.
Section _ Amendments, Etc.
Except as provided in subsection (b) of this Section
18, no amendment or waiver of any provision of this Agreement nor
consent to any departure by any Grantor therefrom shall in any event be
effective unless the same shall be in writing and signed by the Agent,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Upon the execution and delivery by any Person of a
supplement to this Agreement pursuant to which such Person agrees to
become a party hereto (each an "Intellectual Property Security
Agreement Supplement"), (i) such Person or entity shall be referred to
as an "Additional Grantor" and shall be and become a Grantor and each
reference in this Agreement to "Grantor" shall also mean and be a
reference to such Additional Grantor, and (ii) the schedules attached
to each Intellectual Property Security Agreement Supplement shall be
incorporated into and become a part of and supplement Schedules I, II,
III and IV hereto, and the Agent may attach such supplements to such
Schedules, and each reference to such Schedules shall mean and be a
reference to such Schedules as supplemented pursuant hereto.
Any person that executes an Intellectual Property
Security Agreement Supplement shall also execute and deliver such
financing statements and all further instruments and documents and take
all further action that may be necessary or desirable or that the Agent
may reasonably request in order to perfect and protect any Security
Interest purported to be granted thereby.
Section _ Addresses for Notices. Any notice shall be conclusively
deemed to have been received by any party hereto and be effective on the day on
which delivered to such party (against receipt therefor) at the address set
forth below or such other address as such party shall specify to the other
parties in writing, (or, in the case of notice by telefacsimile (where receipt
of such notice is verified by return), when received at such telefacsimile
number as may from time
I-13
240
to time be specified in written notice to the other parties hereto or otherwise
received) or, if sent prepaid by a national overnight courier service, on the
first Business Day after the day on which delivered to such service against
receipt therefor if delivered to such service prior to the deadline of such
service for next Business Day delivery, addressed to such party at said address:
(a) if to any Grantor: c/o Windmere-Durable Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent: NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: NationsBank, National Association
NationsBank Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section _ Continuing Security Interest; Assignments Under the Credit
Agreement; Release of Collateral.
This Agreement and the collateral security interest
granted by the Grantors hereby shall (i) remain in full force and
effect until terminated in accordance with the provisions of Section
20(c), (ii) be binding upon each Grantor, its successors and assigns,
provided, however, no Grantor shall make any assignment hereof without
the prior consent of the Agent, and (iii) inure, together with the
rights and remedies of the Secured Parties hereunder, to the benefit of
the Secured Parties and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii),
any Lender may assign to one or more Persons, or grant to one or more
Persons participations in or to, all or any part of its rights and
obligations under the Credit Agreement (to the extent permitted by the
Credit Agreement); and to the extent of any such assignment or
participation such other Person shall, to the fullest extent permitted
by law, thereupon become vested with all the benefits in respect
thereof granted to such Lender herein or
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otherwise, subject however, to the provisions of the Credit Agreement,
including Article XII thereof concerning the Agent and Article XIII
thereof concerning assignments and participations.
Except as permitted by the Credit Agreement, no
Grantor shall sell, lease, transfer or otherwise dispose of any item of
Collateral during the term of this Agreement without the prior written
consent of the Agent to such sale, lease, transfer or other
disposition.
On the Facility Termination Date, the Collateral
shall be automatically released from the Liens created hereby, all
rights to the Collateral shall automatically revert to the Grantors,
and this Agreement and all obligations of the Grantors hereunder shall
terminate without delivery of any instrument or performance of any act
by any party. Upon the satisfaction of all obligations of Grantor under
the Facility Guaranty and Credit Agreement, Lender shall forthwith
execute and deliver to Grantor, in a form acceptable to Grantor, all
termination statements and other instruments as may be necessary and
proper to terminate and release Lender's security interest in and any
interest, lien, encumbrance or claim of Lender in and to the
Collateral. Upon such satisfaction of Grantor's obligations under the
Facility Guaranty and Credit Agreement, the Agent shall redeliver all
documents embodying such Collateral as may be in Agent's possession,
custody or controlthen held by or for the Agent and the Lenders and
execute and deliver to each Grantor such documents as it shall
reasonably request to evidence such termination and release, including
without limitation, releases of the Secured Parties' interest in any
interest, lien, encumbrance or claim of the Secured Parties in and to
the Collateral, in separate documents, in a form acceptable to Grantor
for recordation by Grantor in those countries in which Collateral now
or hereafter exists, as may be requested by Grantor.
Section _ Swap Agreements. All Hedging Obligations of any Grantor shall
be deemed to be Secured Obligations secured hereby, and each Lender or affiliate
of a Lender party to any Swap Agreement shall be deemed to be a Secured Party
hereunder.
Section _ Severability. If any term or provision of this Agreement is
or shall become illegal, invalid or unenforceable in any jurisdiction, all other
terms and provisions of this Agreement shall remain legal, valid and enforceable
in such jurisdiction and such illegal, invalid or unenforceable provision shall
be legal, valid and enforceable in any other jurisdiction.
Section _ Execution in 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 all of which when taken together shall constitute one and the same
agreement.
Section _ Governing Law.
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THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES
AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY
BE INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE ▇▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA AND, BY THE
EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE
OR TO THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE
ON SUCH PARTY BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND
COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR
PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE PREPAID) TO THE
ADDRESS OF SUCH PARTY PROVIDED BY SECTION 19, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE
OF NEW YORK.
NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF
SHALL PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS IN THE COURTS OF ANY PLACE WHERE ANY PARTY OR ANY PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, THE
JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER, BY
REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN
I-16
243
CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY WAIVES, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT
EACH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
[SIGNATURE PAGES FOLLOW.]
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244
IN WITNESS WHEREOF, the parties have duly executed this
Intellectual Property Security Agreement on the day and year first written
above.
GRANTORS:
WINDMERE-DURABLE HOLDINGS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
WINDMERE CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
WINDMERE HOLDINGS CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WINDMERE HOLDINGS CORPORATION II
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
INTELLECTUAL PROPERTY SECURITY AGREEMENT
245
WINDMERE FAN PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
JERDON PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CONSUMER PRODUCTS AMERICAS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EDI MASTERS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WINDMERE INNOVATIVE PET PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
INTELLECTUAL PROPERTY SECURITY AGREEMENT
246
BAY BOOKS & TAPES, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
FORTUNE PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
HOUSEHOLD PRODUCTS,, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP DELAWARE, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP AMERICAS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
INTELLECTUAL PROPERTY SECURITY AGREEMENT
247
HPG LLC
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP INTELLECTUAL CORP
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WD DELAWARE, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WD DELAWARE II, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
INTELLECTUAL PROPERTY SECURITY AGREEMENT
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
) ss.
COUNTY OF NEW YORK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 26th day of June, 1998, personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
to me known personally, and who, being by me duly sworn, deposes and says that
he is the duly authorized officer of each of the Grantors, and that foregoing
instrument was signed and sealed on behalf of said company by authority of its
Board of Directors, and said ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ acknowledged said instrument to be
the free act and deed of said company.
--------------------------
Notary Public
My commission expires: *
INTELLECTUAL PROPERTY SECURITY AGREEMENT
249
SCHEDULE I
Patents and Patent Applications
[To Be Provided]
250
SCHEDULE II
Trademarks and Trademark Applications
[To Be Provided]
251
SCHEDULE III
Copyrights
[To Be Provided].
252
SCHEDULE IV
License Agreements
1. Black and ▇▇▇▇▇▇ Trademark License Agreements [details to be provided]
2. Litter Maid Patent License Agreement [details to be provided]
253
EXHIBIT J
FORM OF FACILITY GUARANTY
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement" or this "Guaranty"),
dated as of June 26, 1998 is made by EACH OF THE UNDERSIGNED (each a "Guarantor"
and collectively the "Guarantors") to NATIONSBANK, NATIONAL ASSOCIATION, a
national banking association, as Agent (the "Agent") for each of the lenders
(each a "Lender" and collectively the "Lenders") now or hereafter party to the
Credit Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Windmere-Durable Holdings, Inc., a Florida corporation (the
"Borrower"), the Agent and certain of the Lenders have entered into that certain
Credit Agreement dated as of the date hereof (as amended, supplemented or
replaced from time to time, the "Credit Agreement"); and
WHEREAS, the Guarantors are Domestic Subsidiaries and will materially
and directly benefit from the loans and advances to be made and the letters of
credit to be issued under the Credit Agreement;
NOW, THEREFORE, in order to induce the Lenders and the Agent to enter
into the Credit Agreement and to make the loans and advances thereunder, and to
issue letters of credit for the account of the Borrower, and in consideration of
the mutual covenants and agreements contained herein, each Guarantor agrees as
follows:
_ Definitions. All capitalized terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Credit Agreement.
_ Guaranty. Each Guarantor hereby jointly and severally,
unconditionally, absolutely, continually and irrevocably guarantees to the Agent
and the Lenders the payment and performance in full of the Borrower's
Liabilities (as defined below). For all purposes of this Guaranty Agreement,
"Borrower's Liabilities" means: (a) the Borrower's prompt payment in full, when
due or declared due and at all such times, of all Obligations and all other
amounts pursuant to the terms of the Credit Agreement, the Notes, and all other
Loan Documents executed in connection with the Credit Agreement heretofore, now
or at any time or times hereafter owing, arising, due or payable from the
Borrower to the Lenders, and (b) the Borrower's prompt, full and faithful
performance, observance and discharge of each and every agreement, undertaking,
covenant and provision to be performed, observed or discharged by the Borrower
under the Credit Agreement and all other Loan Documents executed in connection
therewith. The Guarantors' obligations to the Agent and the Lenders under this
Guaranty Agreement are hereinafter collectively referred to as the "Guarantors'
Obligations"; provided,
254
however, that the liability of each Guarantor individually, with respect to the
Guarantors' Obligations shall be limited to an aggregate amount equal to the
largest amount that would not render its obligations hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable for the Borrower's Liabilities.
_ Payment. If the Borrower shall default in payment or performance of
any Borrower's Liabilities, whether principal, interest, premium, fee
(including, but not limited to, loan fees and attorneys' fees and expenses), or
otherwise, when and as the same shall become due, whether according to the terms
of the Credit Agreement, by acceleration, or otherwise, or upon the occurrence
of any Event of Default under the Credit Agreement that has not been waived,
then any or all of the Guarantors will, upon demand thereof by the Agent or its
successors or assigns as of the date of the Agent's demand, fully pay to the
Agent, for the benefit of the Lenders, subject to any restriction set forth in
Section 2 hereof, an amount equal to all Borrower's Liabilities then due and
owing.
_ Unconditional Obligations. This is a guaranty of payment and not of
collection. The Guarantors' Obligations under this Guaranty Agreement shall be
absolute and unconditional irrespective of the validity, legality or
enforceability of the Credit Agreement, the Notes or any other Loan Document or
any other guaranty of the Borrower's Liabilities, and shall not be affected by
any action taken under the Credit Agreement, the Notes or any other Loan
Document, any other guaranty of the Borrower's Liabilities, or any other
agreement between the Agent or the Lenders and the Borrower or any other Person,
in the exercise of any right or power therein conferred, or by any failure or
omission to enforce any right conferred thereby, or by any waiver of any
covenant or condition therein provided, or by any acceleration of the maturity
of any of the Borrower's Liabilities, or by the release or other disposal of any
security for any of the Borrower's Liabilities, or by the dissolution of the
Borrower or the combination or consolidation of the Borrower into or with
another entity or any transfer or disposition of any assets of the Borrower or
by any extension or renewal of the Credit Agreement, any of the Notes or any
other Loan Document, in whole or in part, or by any modification, alteration,
amendment or addition of or to the Credit Agreement, any of the Notes or any
other Loan Document, any other guaranty of the Borrower's Liabilities, or any
other agreement between the Agent or the Lenders and the Borrower or any other
Person, or by any other circumstance whatsoever (with or without notice to or
knowledge of any Guarantor) which may or might in any manner or to any extent
vary the risks of such Guarantor, or might otherwise constitute a legal or
equitable discharge of a surety or a guarantor; it being the purpose and intent
of the parties hereto that this Guaranty Agreement and the Guarantors'
Obligations hereunder shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment as herein provided.
_ Currency and Funds of Payment. Each Guarantor hereby guarantees that
the Guarantors' Obligations will be paid in lawful currency of the United States
of America and in immediately available funds, regardless of any law, regulation
or decree now or hereafter in
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effect that might in any manner affect the Borrower's Liabilities, or the rights
of the Agent or any Lender with respect thereto as against the Borrower, or
cause or permit to be invoked any alteration in the time, amount or manner of
payment by the Borrower of any or all of the Borrower's Liabilities.
_ Suits. Each Guarantor from time to time shall pay to the Agent for
the benefit of the Lenders, on demand, at the Agent's place of business set
forth in the Credit Agreement, the Guarantors' Obligations as they become or are
declared due, and in the event such payment is not made forthwith, the Agent or
the Lenders or any of them may proceed to suit against such Guarantor or
exercise any remedy available under any other Loan Document or at law or equity.
At the Agent's election, one or more and successive or concurrent suits may be
brought hereon by the Agent against any Guarantor, whether or not suit has been
commenced against the Borrower, any other Guarantor or any other guarantor of
the Borrower's Liabilities, or any other Person and whether or not the Agent or
any Lender has taken or failed to take any other action to collect all or any
portion of the Borrower's Liabilities.
_ Set-Off and Waiver. Each Guarantor waives any right to assert against
the Agent and the Lenders as a defense, counterclaim, set-off or cross claim,
any defense (legal or equitable) or other claim which each Guarantor may now or
at any time hereafter have against the Borrower, without waiving any additional
defenses, set-offs, counterclaims or other claims otherwise available to such
Guarantor. If at any time hereafter the Agent or any Lender employs counsel to
enforce the Guarantors' Obligations that arise out of an Event of Default, then,
in any of the foregoing events, all of the reasonable attorneys' fees arising
from such services and all expenses, costs and charges in any way or respect
arising in connection therewith or relating thereto shall be paid by such
Guarantor to the Agent, for the benefit of the Lenders, on demand.
_ Waiver; Subrogation.
(a) Each Guarantor hereby waives notice of the following events or
occurrences: (i) the Agent's acceptance of this Guaranty Agreement; (ii) the
Lenders' heretofore, now or from time to time hereafter loaning monies or giving
or extending credit to or for the benefit of the Borrower, whether pursuant to
the Credit Agreement or the Notes or any amendments, modifications, or
supplements thereto, or replacements or extensions thereof; (iii) the Agent, the
Lenders or the Borrower heretofore, now or at any time hereafter, obtaining,
amending, substituting for, releasing, waiving or modifying the Credit
Agreement, the Notes or any other Loan Documents; (iv) presentment, demand,
default, non-payment, partial payment and protest; (v) the Agent or the Lenders
heretofore, now or at any time hereafter granting to the Borrower (or any other
party liable to the Lenders on account of the Borrower's Liabilities) any
indulgence or extensions of time of payment of the Borrower's Liabilities; and
(vi) the Agent or the Lenders heretofore, now or at any time hereafter accepting
from the Borrower, any other Guarantor, any other guarantor of the Borrower's
Liabilities or any other Person, any partial payment or payments on account of
the Borrower's Liabilities or any collateral securing the payment thereof or the
Agent settling, subordinating, compromising, discharging or releasing the same.
Each Guarantor agrees that the Agent and each Lender may heretofore, now or at
any time hereafter do any or all of the foregoing in such manner, upon such
terms and at such times as the Agent and
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256
each Lender, in its sole and absolute discretion, deems advisable, without in
any way or respect impairing, affecting, reducing or releasing such Guarantor
from the Guarantors' Obligations, and each Guarantor hereby consents to each and
all of the foregoing events or occurrences.
(b) Each Guarantor hereby agrees that payment or performance by such
Guarantor of the Guarantors' Obligations under this Guaranty Agreement may be
enforced by the Agent on behalf of the Lenders upon demand by the Agent to such
Guarantor without the Agent being required, such Guarantor expressly waiving any
right it may have to require the Agent, to (i) prosecute collection or seek to
enforce or resort to any remedies against the Borrower or any other Guarantor or
any other guarantor of the Borrower's Liabilities, IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH GUARANTOR THAT DEMAND UNDER THIS
GUARANTY AGREEMENT MAY BE MADE BY THE AGENT, AND THE PROVISIONS HEREOF ENFORCED
BY THE AGENT, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND IS
CONTINUING UNDER THE CREDIT AGREEMENT, or (ii) seek to enforce or resort to any
remedies with respect to any security interests, Liens or encumbrances granted
to the Agent by the Borrower, any other Guarantor or any other Person on account
of the Borrower's Liabilities or any guaranty thereof. Neither the Agent nor any
Lender shall have any obligation to protect, secure or insure any of the
foregoing security interests, Liens or encumbrances on the properties or
interests in properties subject thereto. The Guarantors' Obligations shall in no
way be impaired, affected, reduced, or released by reason of the Agent's or any
Lender's failure or delay to do or take any of the acts, actions or things
described in this Guaranty including, without limiting the generality of the
foregoing, those acts, actions and things described in this Section 8.
(c) Each Guarantor further agrees with respect to this Guaranty that
such Guarantor shall have no right of subrogation, reimbursement or indemnity,
nor any right of recourse to security for the Borrower's Liabilities until the
Facility Termination Date.
_ Effectiveness; Enforceability. This Guaranty Agreement shall be
effective as of the date of the initial Advance under the Credit Agreement and
shall continue in full force and effect until the Facility Termination Date. The
Agent shall give each Guarantor written notice of such termination in accordance
with Section 16 hereof. This Guaranty Agreement shall be binding upon and inure
to the benefit of each Guarantor, the Agent and the Lenders and their respective
successors and assigns. Notwithstanding the foregoing, no Guarantor may, without
the prior written consent of the Agent, assign any rights, powers, duties or
obligations hereunder. Any claim or claims that the Agent and the Lenders may at
any time hereafter have against a Guarantor under this Guaranty Agreement may be
asserted by the Agent or any Lender by written notice directed to such
Guarantor.
_ Representations and Warranties. Each Guarantor warrants and
represents to the Agent for the benefit of the Lenders that it is duly
authorized to execute, deliver and perform this Guaranty Agreement, that this
Guaranty Agreement is legal, valid, binding and enforceable against such
Guarantor in accordance with its terms except as enforceability may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
the enforcement of
J-4
257
creditors' rights generally and by general equitable principles; and that such
Guarantor's execution, delivery and performance of this Guaranty Agreement do
not violate or constitute a breach of its certificate of incorporation or other
documents of corporate governance or any agreement to which such Guarantor is a
party, or any applicable laws, in each case, which violation or breach would
reasonably be expected to have a Material Adverse Effect.
_ Expenses. Each Guarantor agrees to be liable for the payment of all
reasonable fees and expenses, including attorney's fees, incurred by the Agent
in connection with the enforcement of this Guaranty Agreement.
_ Reinstatement. Each Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by the Agent under the Credit Agreement or this Guaranty
Agreement is rescinded or must be restored for any reason.
_ Counterparts. This Guaranty Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall constitute one and
the same instrument.
_ Reliance. Each Guarantor represents and warrants to the Agent, for
the benefit of the Agent and the Lenders, that: (a) such Guarantor has adequate
means to obtain from Borrower, on a continuing basis, information concerning
Borrower and Borrower's financial condition and affairs and has full and
complete access to Borrower's books and records; (b) such Guarantor is not
relying on the Agent or any Lender, its or their employees, agents or other
representatives, to provide such information, now or in the future; (c) such
Guarantor is executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by providing this
Guaranty; (d) such Guarantor has relied solely on the Guarantor's own
independent investigation, appraisal and analysis of Borrower and Borrower's
financial condition and affairs in deciding to provide this Guaranty and is
fully aware of the same; and (e) such Guarantor has not depended or relied on
the Agent or any Lender, its or their employees, agents or representatives, for
any information whatsoever concerning Borrower or Borrower's financial condition
and affairs or other matters material to such Guarantor's decision to provide
this Guaranty or for any counselling, guidance, or special consideration or any
promise therefor with respect to such decision. Each Guarantor agrees that
neither the Agent nor any Lender has any duty or responsibility whatsoever, now
or in the future, to provide to such Guarantor any information concerning
Borrower or Borrower's financial condition and affairs, other than as expressly
provided herein, and that, if such Guarantor receives any such information from
the Agent or any Lender, its or their employees, agents or other
representatives, such Guarantor will independently verify the information and
will not rely on the Agent or any Lender, its or their employees, agents or
other representatives, with respect to such information.
_ Termination. This Guaranty Agreement and all obligations of the
Guarantors hereunder shall terminate without delivery of any instrument or
performance of any act by any party on the Facility Termination Date.
J-5
258
_ Notice. Any notice shall be conclusively deemed to have been received
by any party hereto and be effective on the day on which delivered to such party
(against receipt therefor) at the address set forth below or such other address
as such party shall specify to the other parties in writing (or, in the case of
telephonic notice or notice by telefacsimile (where the receipt of such message
is verified by return) expressly provided for hereunder, when received at such
telephone or telefacsimile number as may from time to time be specified in
written notice to the other parties hereto or otherwise received), or if sent
prepaid by certified or registered mail return receipt requested on the fifth
Business Day after the day on which mailed, or if sent prepaid by a national
overnight courier service, on the first Business Day after the day on which
delivered to such service against receipt therefor if delivered to such service
prior to the deadline of such service for next Business Day delivery, addressed
to such party at said address:
(a) if to the Borrower c/o Windmere-Durable Holdings, Inc.
or any Guarantor: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent: NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: NationsBank, National Association
NationsBank Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 16.
J-6
259
_ Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT
MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE
JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) AND IN ACCORDANCE WITH SECTION 16
HEREOF OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF SUCH PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, THE
JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR HEREAFTER, BY
REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN
J-7
260
CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY AGREES, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND EACH PARTY HEREBY
WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT
IT MAY HAVE THAT EACH ACTION OR PROCEEDING HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
[Signature Page Follows.]
J-8
261
IN WITNESS WHEREOF, the parties have duly executed this Guaranty
Agreement on the day and year first written above.
GUARANTORS:
WINDMERE CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
WINDMERE HOLDINGS CORPORATION
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WINDMERE HOLDINGS CORPORATION II
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WINDMERE FAN PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
JERDON PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GUARANTY AGREEMENT
Signature Page 1 of 4
262
CONSUMER PRODUCTS AMERICAS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
EDI MASTERS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WINDMERE INNOVATIVE PET PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
BAY BOOKS & TAPES, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Finance
FORTUNE PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
GUARANTY AGREEMENT
Signature Page 2 of 4
263
HOUSEHOLD PRODUCTS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP DELAWARE, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP AMERICAS, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HPG LLC
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
HP INTELLECTUAL CORP
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
GUARANTY AGREEMENT
Signature Page 3 of 4
264
WD DELAWARE, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
WD DELAWARE II, INC.
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
GUARANTY AGREEMENT
Signature Page 4 of 4
265
EXHIBIT K
FORM OF BORROWING BASE CERTIFICATE
The undersigned Authorized Representative of Windmere-Durable Holdings,
Inc. hereby certifies as follows:
(a) Eligible Receivables as of this date:
(i) Amount subject to an Approved Receivables Factoring
Program: $ ____________________
(ii) Amount subject to an Approved Receivables Factoring
Program which have not been assigned or otherwise
conveyed to the Factor and as to which no payments
have been received under the Approved Receivables
Factoring Program:
$ ____________________
(iii) All other Eligible Receivables:
$ ____________________
(iv) Total of (ii) plus (iii):
$__________________ x 85% = $_______________
(b) Eligible Inventory as of this date:
If during a Seasonal Demand Period:
Total $__________________ x 65% = $_______________
If not during a Seasonal Demand Period:
Total $__________________ x 50% = $_______________
(c) Aggregate amount of all Indebtedness of Foreign Subsidiaries
permitted under Section 10.1(i) of the Credit Agreement
x 50% $_______________
(a) + (b) - (c) = $______________
EXECUTED THIS ____ DAY OF __________________, 199__.
WINDMERE-DURABLE HOLDINGS, INC.
By:
------------------------------
Authorized Representative
266
EXHIBIT L
FORM OF COMPLIANCE CERTIFICATE
As of ________, 19__
To: NationsBank, National Association,
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is hereby made to the Amended and Restated Credit Agreement
dated as of August 7, 1998 (the "Credit Agreement") among Windmere-Durable
Holdings, Inc. (the "Borrower"), the lenders party thereto from time to time
(the "Lenders") and NationsBank, National Association as agent (the "Agent").
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Credit Agreement. The Borrower through its Authorized
Representative hereby certifies to you as of the date set forth above as
follows:
1. Calculations:
A. Compliance with Section 10.22 (a) of the Credit Agreement:
Consolidated Net Worth
Consolidated Net Worth $_______________
Required: Consolidated Net Worth must be at least an amount equal to
90% of Consolidated Net Worth at June 30, 1998 and will be increased as
of the first day of each fiscal quarter, beginning with the fiscal
quarter beginning October 1, 1998, by an amount equal to (a)
seventy-five percent (75%) of Consolidated Net Income for the
immediately preceding fiscal quarter plus (b) one hundred percent
(100%) of the Net Proceeds of any Equity Offering consummated during
the immediately preceding fiscal quarter; provided, however, in no
event shall the Consolidated Net Worth requirement be decreased as a
result of a net loss of the Borrower and its Subsidiaries (i.e.,
negative Consolidated Net Income) for any fiscal quarter except that
Consolidated Net Worth may be reduced by the actual amount of non-cash
charges incurred in connection with the HPG Acquisition up to but not
exceeding $25,000,000.
1. Consolidated Net Worth
required for immediately preceding
Fiscal quarter $_____________
L-1
267
2. Consolidated Net Income
for preceding fiscal quarter $_____________
3. Net Proceeds from Equity Offerings
Consummated during the
preceding fiscal quarter $_____________
4. Multiply A.2. by 75% $_____________
5. Add A.1. + A.3. + A.4.
(new Consolidated Net Worth
requirement) $_____________
B. Compliance with Section 10.22(b) of the Credit Agreement:
Consolidated Interest Coverage Ratio
1. Consolidated EBITDA* $________________
2. Consolidated Interest Expense $________________
3. Ratio of B.1. to B.2. _____ to 1.00
* See attached Schedule 1 for EBITDA calculation
Required: Consolidated Interest Coverage Ratio shall not be
less than ______ to 1.00.
C. Compliance with Section 10.22(c) of the Credit Agreement:
Consolidated Fixed Charge Coverage Ratio
1. Consolidated EBITDA* $________________
2. Consolidated Fixed Charges $________________
5. Ratio of C.1. to C.2. _____ to 1.00
* See attached Schedule 1 for EBITDA calculation
Required: Consolidated Fixed Charge Coverage Ratio shall not
be less than ___ to 1.00.
D. Compliance with Section 10.22(d) of the Credit Agreement:
Consolidated Leverage Ratio.
1. Consolidated Funded Indebtedness $______________
2. Consolidated EBITDA $______________
3. Ratio of D1. to D.2. __.__ to 1.00
L-2
268
Required: At any time during any period of four consecutive
fiscal quarters the Consolidated Leverage Ratio
shall not be more than _____ to 1.00
E. Compliance with Section 10.22(e) of the Credit Agreement:
Consolidated EBITDA $______________
Required: Consolidated EBITDA shall not be Less than the
amounts indicated on the dates indicated:
Third fiscal quarter end 1998 $23,000,000
Fourth fiscal quarter end 1998 $54,000,000
First fiscal quarter end 1999 $60,000,000
F. Compliance with Section 10.22(f) of the Credit Agreement:
Total Indebtedness.
1. Aggregate Indebtedness of the
Borrower and its Subsidiaries
on a consolidated basis $______________
Required: Must be less than $335,000,000
2. No Default
A. To the best knowledge of the undersigned, during the fiscal
quarter ended as of the date set forth above, (a) no Default
or Event of Default specified in the Agreement has occurred or
(b) the following Default or Event of Default has occurred:
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
B. The Borrower proposes to take the following action with
respect to any such Default or Event of Default described
above:
-------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Note, if no Default or Event of Default has
occurred, insert "Not Applicable").
The undersigned Authorized Representative hereby certifies that the
information set forth above is true, correct and complete as of the date hereof.
L-3
269
IN WITNESS WHEREOF, I have executed this Certificate this ___ day of
_________, 19____.
WINDMERE-DURABLE HOLDINGS, INC.
By:
------------------------------
Authorized Representative
L-4
270
Schedule 1 to Compliance Certificate
[Insert Applicable Determination Date __, ____]
Consolidated EBITDA Calculation:
A. Consolidated Net Income $__________
B. Consolidated Interest Expense $__________
C. Taxes on income $__________
D. Amortization $__________
E. Depreciation $__________
F. Consolidated EBITDA $__________
(A + B + C + D + E)
L-5
271
EXHIBIT M
LANDLORD WAIVER AND ESTOPPEL CERTIFICATE
TO: NationsBank, N.A.
Independence Center, NC1 ▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: _______________, Agency Services
________________________________________________ (the "Lessee") is the
lessee under that certain lease, a copy of which is attached hereto (the
"Lease"), between the Lessee and the undersigned ("Lessor") covering the
premises (the "Premises") commonly known as _________________________________
located at _________________________________________________________________ as
more fully described in the Lease. The undersigned is the fee simple owner of
the Premises.
Windmere-Durable Holdings, Inc. (the "Borrower") has entered into that
certain Credit Agreement, dated as of ________________ ___, 1998 (together with
related documentation being referred to hereinafter as the "Loan Documents"),
with NationsBank, N.A., as agent (in such capacity, the "Agent") for the several
financial institutions from time to time parties thereto (the "Lenders").
Pursuant to that certain Facility Guaranty executed by Lessee and certain
affiliated guarantors for the benefit of the Agent and the Lenders (the
"Guaranty"), Lessee has guaranteed the Borrower's obligations under the Loan
Documents. As a condition to the Lenders making loans and providing other
financial accommodations to the Borrower pursuant to the Credit Agreement, and
as security for Lessee's obligation under the Faclity Guaranty, the Lessee has
granted to the Agent, for the benefit of the Lenders, liens on certain of the
Lessee's personal property as defined in the Loan Documents, whether now owned
or hereafter acquired (said personal property of the Lessee being hereinafter
called the "Collateral," portions of which Collateral are or may hereafter be
located on the Premises).
To induce the Lenders to make loans and to provide other financial
accommodations to the Borrower, and for other good and valuable consideration,
receipt of which is hereby acknowledged, the undersigned hereby certifies and
agrees that:
_ The undersigned is the lessor under the Lease and is the
record owner of the Premises and will benefit from the
financial accommodations to be made available to the Borrower.
_ Attached hereto as Exhibit A is a true and complete copy of
the Lease (except that certain financial terms may have been
blacked out).
_ The Lease has not been modified or terminated, and, to the
best of the undersigned's knowledge, the Lease continues in
full force and effect.
M-1
272
_ Any liens or claims against the Collateral that the Agent has
or may hereafter have by virtue of the security interest
granted in the Collateral by the Lessee to the Agent, for the
benefit of the Lenders, or otherwise, are superior to any
liens on or claims against the Collateral (including, without
limitation, rights of levy or distraint for rent) which the
undersigned now has or may hereafter have by virtue of any
statute, agreement or otherwise;
_ The Collateral located on the Premises shall at any time be
removable by the Agent in accordance with the Loan Documents
if removable by the Lessee pursuant to the terms of the Lease.
_ No default has occurred and remains uncured under the Lease
and, to the best of the undersigned's knowledge, no event has
occurred which, with the giving of notice or the passage of
time, or both, would constitute a default or an event of
default under the Lease.
_ The undersigned will notify the Agent if the Lessee defaults
on any of its lease obligations to the undersigned and allow
the Agent thirty (30) days from its receipt of notice in which
to cure or cause the Lessee to cure any such defaults.
_ If, for any reason, the undersigned either deems itself
entitled to take possession of the Premises during the term of
the Lease or sells or otherwise transfers all or any part of
its interest in the Premises, the undersigned will notify the
Agent thirty (30) days before taking such action.
_ If the Lessee defaults on any of its obligations to the Agent
and the Lenders and, as a result, the Agent undertakes to
enforce its security interest in the Collateral, the
undersigned (a) will reasonably cooperate with the Agent in
its efforts (i) to assemble all of the Collateral located on
the Premises for up to ninety (90) days after the Agent
declares such default, or, (ii) at the Agent's option, to
remove the Collateral from the Premises within a reasonable
time (and whether or not any or all of the Collateral is
removable by the Lessee pursuant to the terms of the Lease),
not to exceed ninety (90) days after the Agent declares such
default, provided that the Agent pays or causes the Lessee to
pay to the undersigned the reserved rental at the rate set
forth in the Lease, prorated for so long as the Agent occupies
the Premises, and provided further that the Agent pays or
causes the Lessee to pay reasonable compensation to the
undersigned for any damage to the Premises caused by removal
of any Collateral not removable by the Lessee pursuant to the
terms of the Lease, and (c) will not hinder the Agent's
actions in enforcing its security interest in the Collateral.
_ The Collateral shall not be deemed a fixture or a part of the
Premises but shall at all times be considered personal
property.
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273
_ Any notice(s) required or desired to be given hereunder shall
be directed to the party to be notified at the following
addresses: if to the Agent, at the address stated above, and
if to the undersigned, at
__________________________________________________.
_ The undersigned hereby disclaims any interest in the
Collateral which may be prior to any security therein between
the Agent and the Lessee. The undersigned hereby waives all
rights, present or future, to levy on or distrain any of the
Collateral and any additions and accessions thereto as
substitutions therefore.
_ The agreements contained herein shall continue in force until
all of the Lessee's obligations and liabilities to the Agent
and the Lenders are paid and satisfied in full and all
financing arrangements among the Agent, the Lenders and the
Lessee have been terminated.
_ This Certificate may be assigned by the Agent for the benefit
of the Lenders by giving thirty (30) days notice of the
assignment to the Lessor.
_ The undersigned will notify all successor owners, transferees,
purchasers and mortgagees of the existence of this waiver. The
agreements contained herein may not be modified or terminated
orally and shall be binding upon the successors, assigns and
personal representatives of the undersigned, and upon any
purchasers, including any mortgagee, from the undersigned.
[Signature page follows.]
M-3
274
This Certificate has been duly executed and delivered by the
undersigned as of the _____ day of _______________, ______.
LESSOR:
By: _______________________________
Name: _____________________________
Title: ____________________________
275
EXHIBIT N
FORM OF ASSIGNMENT OF CONTRACTS
COLLATERAL ASSIGNMENT
THIS COLLATERAL ASSIGNMENT (this "Agreement") is made and entered into
as of June 26, 1998 by and between HOUSEHOLD PRODUCTS DE MEXICO, S.A. DE C.V. ,
a Mexican corporation, and _____________________________________, a
________________ corporation (each an "Assignor" and collectively, the
"Assignors"), and NATIONSBANK, NATIONAL ASSOCIATION, a national banking
association, as Agent (the "Agent") for each of the lenders (the "Lenders" and
collectively with the Agent, the "Secured Parties") now or hereafter party to
the Credit Agreement (as defined below). All capitalized terms used but not
otherwise defined herein shall have the respective meanings assigned thereto in
the Credit Agreement.
W I T N E S S E T H:
WHEREAS, Windmere-Durable Holdings, Inc., the parent corporation of the
Assignor (the "Borrower"), the Agent and the Lenders have entered into that
certain Credit Agreement dated as of the date hereof (as amended, supplemented
or replaced from time to time, the "Credit Agreement"); and
WHEREAS, pursuant to the terms of the Credit Agreement, the Assignor is
required to collaterally assign to the Agent, for the benefit of the Lenders,
all of the Assignor's rights and interests under those certain material
contracts, copies of which are attached hereto as Exhibit A and Exhibit B (the
"Contracts"), as security for the Obligations of the Borrower under the Credit
Agreement and the obligations of the Assignor under the Facility Guaranty
entered into by the Assignor in connection with the Credit Agreement; and
WHEREAS, the Assignor will receive direct and indirect material
benefits from the credit facilities to be provided by the Lenders to the
Borrower under the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
_ Assignment. As collateral security for the payment and performance of
all of the Borrower's Obligations under the Credit Agreement and the Assignor's
obligations under the Facility Guaranty (collectively, the "Secured
Obligations"), the Assignor hereby collaterally assigns to the Agent for the
benefit of the Lenders all of its rights and interests in, and grants to the
Agent for the benefit of the Lenders pursuant to the New York Uniform Commercial
Code (the "UCC") a first priority security interest in, the Contracts.
All advances, charges, costs and expenses, including reasonable
attorneys' fees, incurred or paid by the Agent or any Lender in exercising any
right, power or remedy conferred by this Agreement, or in the enforcement
thereof, shall become a part of the Secured Obligations
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secured hereunder and shall be paid to the Agent for the benefit of the Lenders
by the Assignor immediately upon demand therefor, with interest thereon until
paid in full at the Base Rate.
_ Status of Contracts. The Assignor hereby represents and warrants to
the Agent for the benefit of the Lenders that (a) each Contract is in full force
and effect without default thereunder and constitutes a valid and enforceable
agreement of the Assignor, (d) it has full corporate power, legal right and
lawful authority to execute this Agreement and to assign and transfer the
Contracts in the manner and form hereof. The Assignor shall not agree to any
material amendment of the contracts, nor shall it assign any interest therein
after the date hereof, without the Agent's prior written consent, which may be
withheld for any reason.
_ Default. Should any other Event of Default set forth in the Credit
Agreement occur and be continuing, or should the Assignor fail otherwise to
comply with the terms hereof (any of the foregoing an "Event of Default"), the
Agent is given full power and authority, then or at any time thereafter, to
assume all rights of the Assignor under the Contracts and exercise all rights
and remedies of the Assignor thereunder.
_ Attorney-in-Fact. The Assignor hereby appoints the Agent as its
attorney-in-fact for the purposes of carrying out the provisions of this
Agreement and taking any action and executing any instrument which the Agent may
deem necessary or advisable to accomplish the purposes hereof, which appointment
is irrevocable and coupled with an interest; provided, that the Agent shall have
and may exercise rights under this power of attorney only upon the occurrence
and during the continuance of a Default or an Event of Default. Without limiting
the generality of the foregoing, upon the occurrence and during the continuance
of a Default or an Event of Default, the Agent shall have the right and power to
receive, endorse and collect all checks and other orders for the payment of
money made payable to representing any payment or other distribution payable or
distributable in respect to the Contracts and to give full discharge for the
same.
_ Binding Agreement; Assignment. This Agreement, and the terms,
covenants and conditions hereof, shall be binding upon and inure to the benefit
of the parties hereto, and to their respective successors and assigns, except
that the Assignor shall not be permitted to assign this Agreement or any
interest herein or in the Contractsl, or any part thereof. All references herein
to the Agent shall include any successor thereof, each Lender and any other
obligees from time to time of the Secured Obligations.
_ Severability. In case any Lien, security interest or other right of
any Secured Party or any provision hereof shall be held to be invalid, illegal
or unenforceable, such invalidity, illegality or unenforceability shall not
affect any other Lien, security interest or other right granted hereby or
provision hereof.
_ Counterparts. This Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
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_ Termination. This Agreement and all obligations of the Assignor
hereunder shall terminate without delivery of any instrument or performance of
any act by any party on the earlier of (a) the expiration or termination of the
Contracts in accordance with their terms or (b) the Facility Termination Date.
_ Indemnification. The Assignor hereby covenants and agrees to pay,
indemnify, and hold the Agent and each Lender harmless from and against any and
all other out-of-pocket liabilities, costs, expenses or disbursements of any
kind or nature whatsoever arising in connection with any claim or litigation by
any Person resulting from the execution, delivery, enforcement, performance and
administration of this Agreement or the Loan Documents, or the transactions
contemplated hereby or thereby, or in any respect relating to the Contracts (all
the foregoing, collectively, the "Indemnified Liabilities"); provided, however,
that the Assignor shall have no obligation hereunder with respect to Indemnified
Liabilities arising from the willful misconduct or gross negligence of the Agent
or any Lender. The agreements in this subsection shall survive repayment of all
Secured Obligations, termination or expiration of this Agreement and occurrence
of the Facility Termination Date.
_ Notice. Any notice shall be conclusively deemed to have been received
by any party hereto and be effective on the day on which delivered to such party
(against receipt therefor) at the address set forth below or such other address
as such party shall specify to the other parties in writing (or, in the case of
telephonic notice or notice by telecopy (where the receipt of such message is
verified by return) expressly provided for hereunder, when received at such
telephone or telecopy number as may from time to time be specified in written
notice to the other parties hereto or otherwise received), or if sent prepaid by
certified or registered mail return receipt requested on the fifth Business Day
after the day on which mailed, or if sent prepaid by a national overnight
courier service, on the first Business Day after the day on which delivered to
such service against receipt therefor if delivered to such service prior to the
deadline of such service for next Business Day delivery, addressed to such party
at said address:
(a) if to the Assignor: c/o Windmere-Durable Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent: NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: NationsBank, National Association
NationsBank Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
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278
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as each party may designate for itself by like notice
given in accordance with this Section 10.
_ Governing Law; Waivers.
__"____` THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES ANY OBJECTION THAT IT
MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO THE
JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND IRREVOCABLY
SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) EACH PARTY AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF SUCH PARTY PROVIDED
IN SECTION 20 HEREOF OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE ANY PARTY FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE
COURTS OF ANY PLACE WHERE ANY OTHER PARTY OR ANY OF SUCH PARTY'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, EACH PARTY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
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PROCEEDING, THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR
HEREAFTER, BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE,
MAY BE AVAILABLE TO IT.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE
BE DELIVERED IN CONNECTION WITH THE FOREGOING, EACH PARTY HEREBY
AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH ACTION
OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND
EACH PARTY HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR PROCEEDING HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement on
the day and year first written above.
ASSIGNOR:
HOUSEHOLD PRODUCTS DE MEXICO, S.A. DE C.V.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
AGENT:
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent for the Lenders
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
ASSIGNMENT OF CONTRACTS
281
EXHIBIT O
FORM OF MORTGAGE
PREPARED BY AND WHEN
RECORDED MAIL TO:
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
===============================================================================
A CREDIT LINE DEED OF TRUST, MORTGAGE, OPEN-END MORTGAGE,
DEED OF TRUST, DEED TO SECURE DEBT, LEASEHOLD MORTGAGE,
OPEN-END LEASEHOLD MORTGAGE, LEASEHOLD DEED OF TRUST,
LEASEHOLD DEED TO SECURE DEBT, SECURITY AGREEMENT,
FIXTURE FILING, ASSIGNMENT OF LEASES AND RENTS
AND
FINANCING STATEMENT
Dated and effective as of ________ __, 1998
between
WINDMERE-DURABLE HOLDINGS, INC., a Florida corporation
Grantor
and
NATIONSBANK, NATIONAL ASSOCIATION,
as Agent
Beneficiary
THE INITIAL TERM OF THE INDEBTEDNESS SECURED BY THIS INSTRUMENT
WILL EXPIRE ON ________ __, ____, BUT IS SUBJECT TO RENEWAL AT THE
DISCRETION OF THE SECURED CREDITORS UP TO ________ __, ____.
THIS INSTRUMENT SECURES DEBT WHICH INCLUDES FUTURE ADVANCES
BY BENEFICIARY AND/OR CERTAIN SECURED CREDITORS TO THE GRANTOR
INCLUDING, AMONG OTHER THINGS, TERM LOANS, SWING LINE LOANS,
A REVOLVING LINE OF CREDIT AND REIMBURSEMENT OF ADVANCES
MADE UNDER LETTERS OF CREDIT.
TO THE EXTENT THAT THIS DOCUMENT IS A DEED OF TRUST
OR A LEASEHOLD DEED OF TRUST THE TRUSTEE IS
--------------------------------------
OR THE INDIVIDUAL TRUSTEES, AS APPLICABLE.
THIS INSTRUMENT COVERS GOODS WHICH ARE OR ARE TO BECOME
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FIXTURES RELATED TO THE REAL ESTATE DESCRIBED HEREIN AND IS TO BE
RECORDED IN THE DEED RECORDS AND IS ALSO TO BE INDEXED IN
THE INDEX OF FINANCING STATEMENTS OR OF FIXTURE FILINGS.
REFER TO PAGE ONE OF THIS INSTRUMENT FOR ADDITIONAL
INFORMATION CONCERNING THE DEBTOR AND SECURED PARTY.
THIS INSTRUMENT ENCUMBERS REAL AND PERSONAL PROPERTY LOCATED
IN THE STATE OF FLORIDA AND OTHER STATES. NOTWITHSTANDING
ANYTHING TO THE CONTRARY HEREIN CONTAINED, THE RECOVERY OF
BENEFICIARY AND AGENT UNDER THIS DEED OF TRUST WITH
RESPECT TO THE MORTGAGED PROPERTY LOCATED IN FLORIDA
SHALL BE LIMITED TO THE PRINCIPAL AMOUNT OF $____________
TOGETHER WITH ACCRUED INTEREST ON SUCH AMOUNT AND
OTHER COSTS AND FEES OF RECOVERY AS PROVIDED HEREIN.
IF THE STATE IS NEW YORK, THE MAXIMUM PRINCIPAL AMOUNT
SECURED HEREBY SHALL BE LIMITED TO THE
PRINCIPAL AMOUNT OF $__________.
THIS IS A CREDIT LINE DEED OF TRUST
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ARTICLE I DEFINITIONS
1.1 Definitions..................................................................O-5
1.2 Defined Terms...............................................................O-13
ARTICLE II GRANT
2.1 Grant.......................................................................O-14
2.2 Defeasance and Reconveyance.................................................O-14
2.3 Provisions Concerning Particular States.....................................O-15
2.4 Credit Agreement............................................................O-17
ARTICLE III WARRANTIES AND REPRESENTATIONS
3.1 Title to Mortgaged Property and Lien of this Instrument.....................O-18
3.2 [Intentionally Omitted] ....................................................O-18
3.3 Encumbered Leases...........................................................O-18
3.4 Powers of Termination and Rights of Reverter................................O-19
3.5 Wetlands....................................................................O-19
3.6 Environmental Matters.......................................................O-19
ARTICLE IV AFFIRMATIVE COVENANTS
4.1 Payment and Performance.....................................................O-21
4.2 Compliance with Legal Requirements..........................................O-21
4.3 Lien Status.................................................................O-21
4.4 Payment of Impositions and Other Amounts....................................O-21
4.5 Repair......................................................................O-22
4.6 Insurance...................................................................O-22
4.7 Restoration Following Casualty..............................................O-24
4.8 Application of Proceeds.....................................................O-25
4.9 Inspection..................................................................O-26
4.10 Leases......................................................................O-26
4.11 Appraisals..................................................................O-27
4.12 Taxes.......................................................................O-27
4.13 Collection Costs............................................................O-27
4.14 [Intentionally Omitted.]....................................................O-27
4.15 Estoppel Certificates.......................................................O-27
4.16 Creation and Recordation of Additions and Betterments.......................O-28
4.17 Consents....................................................................O-28
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284
4.18 Covenants Relating to Encumbered Leases.....................................O-28
4.19 Lessor's Bankruptcy.........................................................O-29
4.20 Proceeds of Sales of Assets.................................................O-30
4.21 Change of Name or Address...................................................O-30
4.22 Environmental Assessment Reports............................................O-30
4.23 Notice of and Response to Environmental Complaint...........................O-30
4.24 Indemnification.............................................................O-31
ARTICLE V NEGATIVE COVENANTS
5.1 Use Violations..............................................................O-32
5.2 Waste.......................................................................O-32
5.3 Transfer of Mortgaged Property; Partial Release.............................O-32
5.4 Rights of Reverter and Powers of Termination................................O-32
ARTICLE VI DEFAULT AND FORECLOSURE
6.1 Remedies....................................................................O-33
6.2 No Conditions Precedent to Exercise of Remedies.............................O-39
6.3 Release of and Resort to Collateral.........................................O-39
6.4 Waivers.....................................................................O-39
6.5 Discontinuance of Proceedings...............................................O-40
6.6 Application of Proceeds.....................................................O-40
6.7 Cooperation.................................................................O-41
ARTICLE VII CONDEMNATION
7.1 General.....................................................................O-42
7.2 Rebuilding, Restoration and Repair..........................................O-42
ARTICLE VIII SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
8.1 Assignment..................................................................O-43
8.2 Collection of Rents.........................................................O-44
8.3 Beneficiary's Powers of Attorney............................................O-44
8.4 Grantor Remains Liable......................................................O-45
8.5 Grantor's Representations and Warranties....................................O-46
8.6 Grantor's Covenants.........................................................O-46
8.7 Effect of Release of Mortgaged Property.....................................O-48
8.8 Hold Harmless...............................................................O-48
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ARTICLE IX CONCERNING THE TRUSTEE
9.1 No Required Action..........................................................O-50
9.2 Certain Rights..............................................................O-50
9.3 Retention of Moneys.........................................................O-50
9.4 Successor Trustees..........................................................O-51
9.5 Perfection of Appointment...................................................O-51
9.6 Succession Instruments......................................................O-51
9.7 No Representation by Trustee................................................O-51
9.8 Individual Beneficiary......................................................O-52
9.9 Individual Trustees.........................................................O-52
9.10 Mortgage States.............................................................O-52
ARTICLE X MISCELLANEOUS
10.1 Performance at Grantor's Expense............................................O-54
10.2 Survival of Obligations.....................................................O-54
10.3 Further Assurances..........................................................O-54
10.4 Recording and Filing........................................................O-54
10.5 Notices.....................................................................O-54
10.6 No Waiver...................................................................O-56
10.7 Beneficiary's and Secured Creditors' Right to Perform the Obligations.......O-56
10.8 Covenants Running with the Land.............................................O-57
10.9 Successors and Assigns......................................................O-57
10.10 Severability................................................................O-57
10.11 Entire Agreement and Modification...........................................O-57
10.12 APPLICABLE LAW..............................................................O-58
10.13 No Partnership; Control in Grantor..........................................O-60
10.14 Headings....................................................................O-60
10.15 Hold Harmless...............................................................O-60
10.16 Pronouns and Plurals........................................................O-61
10.17 WAIVER OF TRIAL BY JURY.....................................................O-61
10.18 Assignment..................................................................O-61
10.19 No Merger...................................................................O-61
10.20 Enforceability of Lien......................................................O-62
10.21 Knowledge...................................................................O-62
10.22 Best Efforts................................................................O-62
10.23 Usury Savings Clause........................................................O-62
10.24 Payment of Prior Encumbrances...............................................O-63
10.25 Waiver......................................................................O-63
EXHIBIT A Land or Encumbered Leases...................................................O-66
EXHIBIT B Fee Owner of Land Underlying Encumbered Lease...............................O-67
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THIS INSTRUMENT IS A CREDIT LINE DEED OF TRUST, MORTGAGE, OPEN-END
MORTGAGE, DEED OF TRUST, DEED TO SECURE DEBT, LEASEHOLD MORTGAGE, OPEN-END
LEASEHOLD MORTGAGE, LEASEHOLD DEED OF TRUST, LEASEHOLD DEED TO SECURE DEBT,
SECURITY AGREEMENT, FIXTURE FILING, ASSIGNMENT OF LEASES AND RENTS AND FINANCING
STATEMENT OF BOTH REAL AND PERSONAL PROPERTY, INCLUDING GOODS THAT ARE OR ARE TO
BECOME FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN, AND IS TO BE FILED FOR
RECORD IN THE RECORDS WHERE MORTGAGES, DEEDS OF TRUST OR DEEDS TO SECURE DEBT OF
REAL ESTATE ARE RECORDED. ADDITIONALLY, THIS INSTRUMENT SHOULD BE APPROPRIATELY
INDEXED, NOT ONLY AS A MORTGAGE, DEED OF TRUST OR DEED TO SECURE DEBT, BUT ALSO
AS A FINANCING STATEMENT OR FIXTURE FILING COVERING GOODS THAT ARE OR ARE TO
BECOME FIXTURES ON THE REAL PROPERTY DESCRIBED HEREIN. THE NAMES OF THE GRANTOR
(DEBTOR/MORTGAGOR) AND THE TRUSTEE AND BENEFICIARY (SECURED PARTY/MORTGAGEE),
THE MAILING ADDRESSES OF THE GRANTOR (DEBTOR/MORTGAGOR), THE ADDRESS OF THE
TRUSTEE AND BENEFICIARY (SECURED PARTY/MORTGAGEE) FROM WHICH INFORMATION
CONCERNING THE SECURITY INTEREST MAY BE OBTAINED, AND A STATEMENT INDICATING THE
TYPES, OR DESCRIBING THE ITEMS OF COLLATERAL, ARE SET FORTH ON PAGE 2 AND IN
SECTIONS 1.1 AND 8.1 OF THIS INSTRUMENT, RESPECTIVELY. IF THE MORTGAGED PROPERTY
IS A LEASEHOLD, THE NAME OF THE FEE OWNER IS SET FORTH IN EXHIBIT "B" HERETO.
THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS AND SECURES
OBLIGATIONS CONTAINING PROVISIONS FOR CHANGES IN INTEREST RATES, EXTENSIONS OF
TIME FOR PAYMENT AND OTHER MODIFICATIONS IN THE TERMS OF THE OBLIGATIONS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN CONTAINED, TO THE EXTENT THE
MORTGAGED PROPERTY IS LOCATED IN THE STATE OF CALIFORNIA, COLORADO OR TEXAS,
THIS INSTRUMENT SHALL BE DEEMED TO BE AND SHALL BE ENFORCEABLE AS A DEED OF
TRUST, AND/OR LEASEHOLD DEED OF TRUST, AND AS A SECURITY AGREEMENT, ASSIGNMENT
OF LEASES AND RENTS AND FINANCING STATEMENT. TO THE EXTENT THE MORTGAGED
PROPERTY IS LOCATED IN THE STATE OF FLORIDA OR NEW YORK, THIS INSTRUMENT SHALL
BE DEEMED TO BE AND SHALL BE ENFORCEABLE AS AN OPEN-END MORTGAGE, MORTGAGE,
LEASEHOLD MORTGAGE AND/OR LEASEHOLD OPEN-END MORTGAGE AND AS A SECURITY
AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FINANCING STATEMENT. THIS
INSTRUMENT SECURES FUTURE ADVANCES MADE PURSUANT TO THE PROVISIONS HEREOF AND
THE CREDIT AGREEMENT REFERRED TO BELOW. THE ADDRESS AT WHICH COMMUNICATIONS TO
THE SECURED CREDITORS MAY BE MAILED OR DELIVERED IS: CARE OF NATIONSBANK,
NATIONAL ASSOCIATION, AS AGENT, INDEPENDENCE CENTER, 15TH FLOOR, NC1-001-15-04,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ATTENTION: AGENCY SERVICES.
287
THIS INSTRUMENT ENCUMBERS REAL AND PERSONAL PROPERTY LOCATED IN THE
STATE OF FLORIDA AND OTHER STATES. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN CONTAINED, THE RECOVERY OF BENEFICIARY AND AGENT UNDER THIS DEED OF TRUST
WITH RESPECT TO THE MORTGAGED PROPERTY LOCATED IN FLORIDA SHALL BE LIMITED TO
THE PRINCIPAL AMOUNT OF $____________ TOGETHER WITH ACCRUED INTEREST ON SUCH
AMOUNT AND OTHER COSTS AND FEES OF RECOVERY AS PROVIDED HEREIN.
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A CREDIT LINE DEED OF TRUST, MORTGAGE, OPEN-END MORTGAGE, DEED OF TRUST, DEED TO
SECURE DEBT, LEASEHOLD MORTGAGE, OPEN-END LEASEHOLD MORTGAGE, LEASEHOLD DEED OF
TRUST, LEASEHOLD DEED TO SECURE DEBT, SECURITY AGREEMENT, FIXTURE FILING,
ASSIGNMENT OF LEASES AND RENTS AND FINANCING STATEMENT
A POWER OF SALE HAS BEEN GRANTED IN THIS DEED OF TRUST. A POWER OF SALE MAY
ALLOW THE BENEFICIARY TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING
TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE GRANTOR UNDER THIS DEED OF
TRUST.
THIS CREDIT LINE DEED OF TRUST, MORTGAGE, OPEN-END MORTGAGE, DEED OF
TRUST, DEED TO SECURE DEBT, LEASEHOLD MORTGAGE, OPEN-END LEASEHOLD MORTGAGE,
LEASEHOLD DEED OF TRUST, LEASEHOLD DEED TO SECURE DEBT, SECURITY AGREEMENT,
FIXTURE FILING, ASSIGNMENT OF LEASES AND RENTS, AND FINANCING STATEMENT
(hereinafter referred to as this "Deed of Trust" or this "Mortgage"), is entered
into as of the ____ day of ________, 1998, by and among WINDMERE-DURABLE
HOLDINGS, INC., a Florida corporation, the mortgagor, grantor and trustor
hereunder (herein called "Grantor"), whose address for all purposes hereunder is
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇;
______________________________, a __________ corporation, the trustee hereunder
to the extent that this Deed of Trust operates as a deed of trust (for all Deed
of Trust States other than Colorado and Texas) (herein called "Trustee"), whose
address for all purposes hereunder is ____ ____________________________,
___________, __________ _____; PUBLIC TRUSTEE FOR THE COUNTY OF ▇▇▇▇▇, STATE OF
COLORADO, the individual trustee hereunder to the extent this Deed of Trust
operates as a deed of trust in the State of Colorado (herein called "Colorado
Public Trustee"), whose address for all purposes hereunder is 450 So. 4th
Avenue, Brighton, Colorado; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, a resident of Dallas County, Texas,
the individual trustee hereunder to the extent this Deed of Trust operates as a
deed of trust in the State of Texas (herein called the "Texas Individual
Trustee") whose address for all purposes hereunder is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇; and NATIONSBANK, NATIONAL
ASSOCIATION, a national banking association, acting in its capacity as agent
(collectively with its successors and assigns, the "Agent") for the Secured
Creditors (as defined herein), under that certain Credit Agreement dated as of
________ __, 1998, executed by the Grantor, the Agent, and the Lenders (as
amended from time to time, the "Credit Agreement"), the mortgagee hereunder to
the extent that this Deed of Trust operates as a mortgage, and the beneficiary
hereunder to the extent this Deed of Trust operates as a deed of trust (herein
called "Beneficiary", which term shall include each of its successors and
assigns), whose address for all purposes hereunder is One Independence Center,
15th Floor, NC1-001-15-04, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Agency
Services. Beneficiary shall hold the interests and exercise the rights granted
hereunder in trust as Agent for the benefit of and as security for the Secured
Creditors, as more fully provided in the Credit Agreement. This Deed of Trust
secures the Obligations (as defined below
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in Section 1.1) and any modifications, extensions and renewals of the
Obligations, it being the intention of the parties hereto that this Deed of
Trust shall be deemed an open and continuing lien instrument to secure all such
Obligations now existing or hereafter arising regardless of the extinguishment
and payment of any one or more obligations owed to the Secured Creditors. This
Deed of Trust secures future advances made by the Secured Creditors to the
Grantor under the Credit Agreement, the other Loan Documents and hereunder, and
each future advance, whether or not evidenced by a note, and each note or other
instrument evidencing the same, shall be secured hereby. All provisions of this
Deed of Trust shall apply to each future advance as well as to all other
Obligations secured hereby, whether or not evidenced by a note, and all such
advances and other Obligations, and any modifications, extensions and renewals
of the Obligations shall have the same lien priority as if made on the date this
Deed of Trust is recorded.
This Deed of Trust secures the Obligations (as defined below in Section
1.1), and any modifications, extensions and renewals of the Obligations, which
shall be construed in all cases to consist of, among other obligations, the
covenants of the Grantor set forth in, and the amounts advanced to or for the
account, use or benefit of Grantor from time to time pursuant to the Loan
Documents (as defined below), the aggregate amount of the Secured Indebtedness
(as defined below) actually outstanding at any particular time being subject to
fluctuations up or down due to further advances of loan proceeds and/or future
repayments of such loan proceeds from time to time over the term of such Secured
Indebtedness and/or changes in the rate of interest charged in respect of
Secured Indebtedness bearing interest at a floating rate (all of which advances
and repayments are hereby declared to be contemplated by the Grantor and the
Beneficiary at the time this Deed of Trust is executed).
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WITNESSETH:
ARTICLE ________`_
DEFINITIONS
_ Definitions: As used herein, the following terms shall have the
following meanings:
Agent: Initially NNA in its capacity as Agent for the Secured Creditors
and any successor Agent pursuant to the Credit Agreement and such Agent's
successors and assigns.
Assignment: The assignment and delivery to Beneficiary as security for
the payment and performance of the Obligations of all of the rights, titles,
interests and estates of Grantor in and to all of the following: (a) the
Encumbered Leases, (b) the Leases, (c) the Rents, (d) the Fixtures and (e) the
Personalty.
Bankruptcy Act: The Bankruptcy Reform Act of 1978, 11 U.S.C.ss.101, et
seq., as the same may be amended from time to time.
Beneficiary: NationsBank, National Association, as Agent for the
Secured Creditors, and, if NNA is not permitted to act as Beneficiary in any
State, then in that State the Individual Beneficiary to the extent and solely
for the purpose described in Section 9.8, and each of their successors and
assigns.
Buildings: Any and all buildings, parking structures, utility sheds,
workrooms, air conditioning towers, open parking areas, and other structures or
improvements, and any and all additions, alterations, betterments or
appurtenances thereto, now or at any time hereafter situated, placed or
constructed upon the Land or any part thereof.
Colorado Public Trustee: Public Trustee for the County of ▇▇▇▇▇, State
of Colorado whose address is 450 So. 4th Avenue, Brighton, Colorado, and any
successor or substitute Colorado Public Trustee, to the extent and subject to
the limitations described in Section 9.9 hereof.
Commitments: The commitments by the Lenders to make the term loans, the
revolving credit loans, and the swing line loans as set forth in the Credit
Agreement (which includes commitments to issue Letters of Credit as more
particularly set forth therein).
Credit Agreement: The Credit Agreement dated as of ________ __, 1998,
among the Grantor, the Lenders, and the Agent, which agreement provides for the
making of term loans, revolving credit loans, swing line loans and the issuance
of, and participation in, Letters of Credit as contemplated therein (as the same
may be further amended, modified, extended, renewed, restated and/or
supplemented from time to time), provided, however, that references herein to
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sections or provisions of, schedules or exhibits to, or capitalized terms or
phrases contained in, the Credit Agreement shall have the respective meanings
defined or provided in the Credit Agreement as it exists on the date hereof, and
as it may be modified from time to time.
Deed of Trust State: Any state defined as a "Deed of Trust State" in
Section 2.3 hereof.
Default: As defined in the Credit Agreement.
Default Rate: As defined in the Credit Agreement.
Election: The election described in Section 365 of the Bankruptcy Act,
as the same may be amended from time to time, together with any comparable right
under any other state or federal law relating to bankruptcy, reorganization or
other relief for debtors, whether now or hereafter in effect.
Encumbered Leases: The leases described as "Encumbered Leases" in
Exhibit "A" attached hereto, if any, together with all rights, options and other
benefits inuring to the Grantor as lessee thereunder.
Environmental Laws: Any federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license regulating,
relating to, or imposing liability or standards of conduct concerning, any
Hazardous Material, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, the
Superfund Amendments and Reauthorization Act of 1986, as amended, the Resource
Conservation and Recovery Act, as amended; the Toxic Substances Control Act, as
amended, the Clean Air Act, as amended, the Clean Water Act, as amended, the
Occupational Safety and Health Act, as amended, together with all regulations
promulgated thereunder, and any other "Superfund" or "Superlien" law. With
respect to any portion of the Mortgaged Property located within the State of
Texas, "Environmental Laws" shall also include the Texas Water Code, as amended,
and the Texas Solid Waste Disposal Act, as amended.
Equipment: All of the Grantor's right, title and interest in and to all
"equipment", as such term is defined in Section 9-109(2) of the UCC (as defined
below), now or hereafter existing, now owned or hereafter acquired by the
Grantor, which are now or hereafter located or to be located upon, within or
about the Land and the Buildings, or which are used in or related to the
operation of the Mortgaged Property, including, but not limited to, all
machinery, equipment, furnishings, fixtures, electrical equipment, vehicles and
computer and other electronic data-processing and other office equipment and any
and all additions, substitutions and replacements of any of the foregoing,
wherever located, together with all attachments, components, parts, equipment
and accessories installed thereon or affixed thereto.
Events of Default: As defined in the Credit Agreement.
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Exhibits: The exhibits attached hereto and incorporated herein by this
reference.
Expenses: All out-of-pocket costs and expenses (including reasonable
fees and expenses of counsel and court costs) incurred and all advances made, by
the Beneficiary and/or Trustee, as applicable, or any trustee, co-trustee or
agent of the Beneficiary and/or Trustee pursuant to the provisions of, or in
furtherance of the Beneficiary's and/or Trustee's duties or rights under, the
Loan Documents, including, without limitation, expenses of retaking, holding,
preparing for sale or lease, selling and/or leasing the Mortgaged Property or of
assuming the rights of the lessee under any Encumbered Lease, but excluding any
of the same specifically described in the Loan Documents as being the
responsibility of the Beneficiary.
Facility Termination Date: As defined in the Credit Agreement.
Financing Statement: As defined in Section 8.5 below.
Fixtures: Equipment now owned or the ownership of which is hereafter
acquired by Grantor which is so related to the Land and Buildings forming part
of the Mortgaged Property that it is deemed a fixture or real property under the
laws of the State, including, without limitation, all building or construction
materials intended for construction, reconstruction, alteration or repair of or
installation on the Mortgaged Property, construction equipment, appliances,
machinery, plant equipment, fittings, apparati, fixtures and other items now
owned or the ownership of which is hereafter acquired by Grantor and now or
hereafter attached to, installed on or in, or used in connection with
(temporarily or permanently), any of the Buildings or the Land, or which in some
fashion are deemed to be fixtures to the Land or Buildings under the laws of the
State, including, but not limited to, the items described in the definition of
Equipment, furnaces, boilers, heaters, engines, devices for the operation of
pumps, pipes, plumbing, cleaning, call and sprinkler systems, fire and theft
protection apparatus and equipment, water tanks, air and water pollution
control, waste disposal, heating, ventilating, plumbing, lighting,
refrigerating, laundry, incinerating, air conditioning and air cooling equipment
and systems, gas and electric machinery, appurtenances and equipment, pollution
control equipment, disposals, dishwashers, refrigerators and ranges,
recreational equipment and facilities of all kinds, carpet, moveable or
immoveable walls or partitions, built-in oxygen and vacuum systems and water,
gas, electrical, storm and sanitary sewer facilities, utility lines and
equipment (whether owned individually or jointly with others, and, if owned
jointly, to the extent of Grantor's interest therein) and all other utilities
whether or not situated in easements, all water tanks, water supply, water power
sites, fuel stations, fuel tanks, fuel supply, and all other structures,
together with all accessions, appurtenances, additions, replacements,
betterments and substitutions for any of the foregoing and the proceeds thereof.
Notwithstanding the foregoing, "Fixtures" shall not include any property which
tenants are entitled to remove pursuant to their Leases.
Grantor: The above-defined Grantor and any and all subsequent owners of
the Mortgaged Property.
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Hazardous Material: Any pollutant, contaminant, or hazardous, toxic or
dangerous waste, substance or material (including, without limitation, petroleum
products, asbestos-containing materials and lead), the generation, management,
handling, storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
Highest Lawful Rate: As defined in Section 10.23 hereof.
Impositions: All real estate and personal property taxes; water, gas,
sewer, electricity and other utility rates and charges; charges for any
easement, license or agreement maintained for the benefit of the Mortgaged
Property; and all other taxes, standby fees, levies, claims, charges and
assessments, general and special, ordinary and extraordinary, foreseen and
unforeseen of any kind and nature whatsoever which at any time prior to or after
the execution hereof may be assessed, levied or imposed upon the Mortgaged
Property or the Rents or the ownership, use, occupancy or enjoyment thereof, and
any interest, costs or penalties with respect to any of the foregoing.
Indebtedness: As defined in the Credit Agreement.
Individual Beneficiary: Any individual who shall be hereafter named of
record as Individual Beneficiary, and who shall be co-Beneficiary hereunder to
the extent and subject to the limitations described in Section 9.8 hereof.
Individual Trustee: To the extent the Mortgaged Property is located in
the State of Colorado, the Colorado Public Trustee and to the extent the
Mortgaged Property is located in the State of Texas, the Texas Individual
Trustee.
Inventory: All of the Grantor's right, title and interest, whether now
owned or hereafter acquired, in and to all inventory in all of its forms,
wherever located, now or hereafter existing, including, but not limited to, (i)
goods in which the Grantor has an interest in mass or a joint or other interest
or right of any kind (including, without limitation, goods in which the Grantor
has an interest or right as consignee or consignor) and (ii) goods that are
returned to or repossessed by the Grantor, and all accessions thereto and
products thereof and documents therefor.
Issuing Bank: NationsBank, or any successor or replacement bank, as
issuer of Letters of Credit in accordance with the Credit Agreement.
Land: The real estate owned in fee or leased by the Grantor and
described in Exhibit "A" attached hereto, and all rights, titles and interests
appurtenant thereto.
Leases: Any and all leases, subleases, licenses, concessions or other
agreements (written or verbal, now or hereafter in effect) through which Grantor
directly or indirectly grants a possessory interest in and to, or the right to
occupy and use, all or any portion of the Mortgaged Property that constitutes
real property together with any renewals or extensions thereof and all leases,
subleases, licenses, concessions or other agreements in substitution therefor.
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Legal Requirements: (i) Any and all present and future decisions,
statutes, rulings, rules, regulations, permits, certificates or ordinances of
any governmental authority in any way applicable to Grantor or the Mortgaged
Property, including, without limitation, the ownership, use, occupancy,
possession, operation, maintenance, alteration, repair or reconstruction
thereof, (ii) Grantor's presently or subsequently effective Certificate of
Incorporation and Bylaws, (iii) any and all Leases and other contracts (written
or oral) of any nature by which the Grantor or the Mortgaged Property may be
bound, and (iv) any and all restrictions, reservations, conditions, easements or
other covenants or agreements of record affecting the Mortgaged Property.
Lenders: As defined in the Credit Agreement, and specifically including
NationsBank, as defined herein, as the Issuing Bank, or any successor Issuing
Bank and each other lender which may hereafter become a party to the Credit
Agreement pursuant to the terms thereof.
Letter of Credit: As defined in the Credit Agreement.
Lessor: The landlord under the Encumbered Lease, if any.
Loan Documents: As defined in the Credit Agreement.
Mechanic's Liens: As defined in Section 4.4 hereof.
Mortgage State: Each state defined as a "Mortgage State" in Section 2.3
hereof.
Mortgaged Property or Mortgaged Properties: The Land, Buildings,
Fixtures, Personalty, Encumbered Leases, Leases and Rents together with:
(i) all rights, privileges, tenements, licenses,
hereditaments, rights-of-way, easements, utility use, air rights,
appendages, division rights, and appurtenances in any way appertaining
thereto, and all right, title, interest or estate of Grantor in and to
any streets, ways, alleys, roadbeds, inclines, tunnels, culverts,
strips or gores of land adjoining or serving the Land or any part
thereof;
(ii) all betterments, additions, alterations,
appurtenances, substitutions, replacements and revisions thereof and
thereto and all reversions and remainders therein;
(iii) all of Grantor's right, title and interest in and to
any awards, remuneration, settlements or compensation hereafter to be
made by any insurer, governmental authority or other person or entity
as a result of the destruction, loss, theft, taking by eminent domain
or other involuntary conversion of whatever nature (whether occurring
prior to or after the date of this Deed of Trust) of any of the Land,
Buildings, Fixtures, Leases, Encumbered Leases, Rents or Personalty,
including those for any condemnation and vacation of, or change of
grade in, any streets affecting the Land or the Buildings;
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(iv) any and all other security and collateral of any
nature whatsoever, now or hereafter given by Grantor to secure the
payment and performance of the Obligations;
(v) all water and water rights (whether riparian,
appropriative, or otherwise and whether or not appurtenant) in or
hereafter relating to or used in connection with the Land, including,
without limitation, any surface water management permits, any
consumption use permits or general permits;
(vi) any right, title, interest or estate hereafter
acquired by Grantor in any of the foregoing and in and to the Land,
Buildings, Fixtures, Personalty (except as otherwise provided herein),
Leases, Encumbered Leases and Rents. To the extent permitted by law,
all of the Fixtures are to be deemed and held to be a part of and
affixed to the Land. In the event the estate of the Grantor in and to
any of the Land and Buildings is a leasehold estate, this conveyance
shall include and the lien, security interest and assignment created
hereby shall encumber and extend to all other, further or additional
title, estates, interest or rights which may exist now or at any time
be acquired by Grantor in or to the property demised under the lease
creating such leasehold estate and including Grantor's rights, if any,
to purchase the property demised under such lease and, if fee simple
title to any of such property shall ever become vested in Grantor, such
fee simple interest shall be encumbered by this Deed of Trust in the
same manner as if Grantor had fee simple title to such property as of
the date of execution hereof;
(vii) all of Grantor's right, title and interest in and to
any and all funds deposited by or on behalf of Grantor with any city,
county, public body or agency, irrigation, sewer or water district or
company, gas or electric company, telephone company, and any other body
or agency for the installation, or to secure the installation, of any
utility pertaining to the Land, Buildings, Fixtures and all
betterments, additions, alterations, appurtenances, substitutions,
replacements and revisions thereof and thereto;
(viii) all of Grantor's right, title and interest in and
to (i) all oil, gas and other minerals located in, on or under the
Land, (ii) all oil, gas or mineral leases, royalty agreements and other
contracts that have been or in the future are entered into with respect
to the Land or with respect to any oil, gas or other minerals located
in, on or under the Land ("Mineral Leases"), and (iii) all rents,
profits, royalties and income at any time arising from the Mineral
Leases or from the sale of oil, gas or other minerals located in, on or
under the Land; and
(ix) all proceeds and products of the foregoing. As used
in this Deed of Trust, the term "Mortgaged Property", including each
component thereof, shall be expressly interpreted as meaning all or,
where the context permits or requires, any portion of the above, and
all or, where the context permits or requires, any interest of Grantor
therein.
NationsBank: NationsBank, National Association, a national banking
association.
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NMS: NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC and its successors.
NNA: NationsBank, National Association, as Agent for the Secured
Creditors.
Notes: As defined in the Credit Agreement.
Obligations: The obligations, liabilities and Indebtedness of the
Grantor with respect to (i) the principal and interest on the Loans (as defined
in the Credit Agreement) as evidenced by the Notes, (ii) the Reimbursement
Obligations (as defined in the Credit Agreement), and otherwise in respect of
Letters of Credit, (iii) all liabilities of Grantor to any Lender or an
affiliate of Lender which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of Grantor to
the Lenders, the Agent or NMS hereunder, under any one or more of the other Loan
Documents or with respect to the Loans, including without limitation, the
Secured Indebtedness. To the extent the State is Florida, the foregoing
definition of the Obligations is subject to the limitations set forth in Section
2.3(d).
Parcel: A single parcel of real property identified as a unit in
Exhibit "A" hereto. For purposes of legal description and real property title
records, a Parcel may be comprised of more than one lot.
Permitted Encumbrances: Those title exceptions shown on Commitment No.
___, submitted to and approved by NNA, and such other title exceptions submitted
in writing to, and approved by, NNA.
Personalty: All of the right, title and interest of Grantor in and to
all tangible and intangible personal property including all furniture,
furnishings, equipment, machinery, goods, tools, supplies, appliances, general
intangibles, contract rights, franchises, licenses, certificates and permits,
and all other personal property (other than Inventory, accounts receivable, and
Fixtures) of any kind or character (as defined in and subject to the provisions
of the UCC) which are now or hereafter located or to be located upon, within or
about the Land and the Buildings, or which are used in or related to the
operation of the Mortgaged Property, together with all accessories, replacements
and substitutions thereto or therefor and the proceeds thereof; and all
insurance proceeds and condemnation proceeds received by Grantor with respect to
the Mortgaged Property to the extent provided herein. Furthermore, with respect
to any of the above-described personal property represented by a contract,
agreement or other instrument or consisting of a permit, certificate or similar
item issued by a governmental authority, then, to the extent that the granting
of the lien or security interest or exercise of Beneficiary's rights under this
Deed of Trust would constitute a breach or violation of the terms of such
instrument, or any Legal Requirement applicable to such permit, certificate or
similar item that would impose material liability on the Grantor or that would
result in a revocation or forfeiture of such item of personal property, such
personal property shall not constitute "Personalty" hereunder.
Rents: All of the rents, revenues, income, proceeds, profits, security
and other types of deposits, and other benefits paid or payable and to become
due or payable to Grantor by parties
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to the Leases for using, leasing, licensing, possessing, operating from,
residing in, selling or otherwise enjoying any portion or portions of the
Mortgaged Property.
Required Lenders: The "Required Lenders" as defined in the Credit
Agreement.
Secured Amount: As defined in Section 2.3(c), and applies only to the
extent that the State is New York.
Secured Creditors: The Agent (which is NNA on the date of this
Instrument), NMS and the Lenders that are parties to the Credit Agreement, and
specifically including NationsBank, as Issuing Bank or any successor Issuing
Bank.
Secured Indebtedness: (a) Subject to Section 2.3(c) and (d), the
principal, interest, premium (if any) and other sums (including, without
limitation the Reimbursement Obligations) owing or payable by the Grantor
pursuant to the Loan Documents, which includes present advances and future
advances to be incurred within the terms specified in the Credit Agreement,
including without limitation, indebtedness to the Lenders under the Credit
Agreement in the original aggregate principal amount of Three Hundred Forty-Five
Million Dollars ($345,000,000.00) evidenced by the Notes and the Credit
Agreement; (b) any and all additional advances made by Beneficiary to protect or
preserve the Mortgaged Property (as defined above) or the security title,
security interest and lien hereof on the Mortgaged Property or to repair or
maintain the Mortgaged Property, or to complete improvements on the Mortgaged
Property (whether or not Grantor remains the owner of the Mortgaged Property at
the time of such advances and whether or not the Beneficiary or the Lenders
remain the owner of the Obligations and this Deed of Trust) in accordance with
the provisions hereof; and (c) any and all expenses incident to effecting the
collection, performance and/or satisfaction of the Obligations secured hereby
and the foreclosure hereof by action in court or by exercise of the power of
sale herein contained; provided, however, that in no event shall more than Three
Hundred Forty-Five Million Dollars ($345,000,000.00) of the total Secured
Indebtedness represent original principal amount due under the Credit Agreement.
The Credit Agreement provides that the interest rate and payment terms of the
indebtedness may be adjusted as provided therein.
State: The State in which the applicable portion of the Mortgaged
Property is situated. For example, with respect to the portion of the Mortgaged
Property situated in California, the term "State" shall mean the State of
California.
Subsidiary: (a) Any corporation in which more than 50% of its
outstanding voting stock is owned directly or indirectly by the Grantor and/or
by one or more of the Grantor's Subsidiaries or (b) in the case of a Person
other than a corporation, any Person with respect to which the Grantor or any
Subsidiary directly or indirectly is entitled to more than 50% of the profits of
such Person.
Swap Agreement: As defined in the Credit Agreement.
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Texas Individual Trustee: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, a resident of Dallas County,
Texas, whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ and any successor or substitute Texas Individual Trustee to the
extent and subject to the limitations described in Section 9.9 hereof.
Transfer: As defined in Section 5.3 below.
Trustee: ______________________________________, a __________
corporation, its successors and assigns, or the Individual Trustees, as
applicable and any successor Trustee hereunder.
UCC: The Uniform Commercial Code as adopted in the State.
Work: As defined in Section 4.7 hereof.
_ Defined Terms: The terms "Business Day," "Capital Expenditures,"
"Generally Accepted Accounting Principles," and "Liens," "Person," and "Swap
Agreement," together with any other capitalized term used herein but not
otherwise defined herein, shall have the same respective meanings given to them
in the Credit Agreement as it existed on the date hereof, and as it may be
modified from time to time.
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ARTICLE ________`_
GRANT
_ Grant: NOW THEREFORE, for and in consideration of Ten Dollars
($10.00), and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by Grantor, and to secure the Grantor's full
and faithful performance and satisfaction of the Obligations, Grantor, intending
to be legally bound hereby, has GIVEN, ALIENATED, REMISED, GRANTED, BARGAINED,
MORTGAGED, SOLD, RELEASED, CONVEYED, ASSIGNED, TRANSFERRED, WARRANTED, SET OVER
AND CONFIRMED and by these presents does GIVE, ALIENATE, REMISE, GRANT, BARGAIN,
MORTGAGE, SELL, RELEASE, CONVEY, ASSIGN, TRANSFER, WARRANT, SET OVER AND CONFIRM
AND GRANT A SECURITY INTEREST IN unto Trustee, its successors in trust and its
assigns forever, in trust, for the benefit of Beneficiary to the extent the
Mortgaged Property is situated in a Deed of Trust State, or unto Beneficiary to
the extent the Mortgaged Property is situated in a Deed of Trust State, or unto
Beneficiary to the extent the Mortgaged Property is situated in a Mortgage
State, with POWER OF SALE and right to entry for the benefit of Beneficiary, all
of the Mortgaged Property, subject only to the Permitted Encumbrances, TO HAVE
AND TO HOLD the Mortgaged Property and (except as otherwise set forth herein)
all parts, rights, members and appurtenances thereof for the use, benefit and
behoof of the Trustee and its successors and assigns in trust, for the benefit
of Beneficiary to the extent the Mortgaged Property is situated in a Deed of
Trust State, or for the use, benefit and behoof of the Beneficiary and its
successors and assigns to the extent the Mortgaged Property is situated in a
Mortgage State, in fee simple forever, or to the extent of Grantor's leasehold
interest therein, forever, hereby releasing and waiving all rights under and by
virtue of the homestead exemption laws of the State, to the extent permitted by
the applicable Legal Requirements of such State; and Grantor hereby absolutely
and irrevocably assigns to Beneficiary the Leases and Rents for the purposes and
upon the terms and conditions herein set forth; and Grantor does hereby bind
itself, its successors and assigns to FOREVER WARRANT AND DEFEND the title to
the Mortgaged Property and every part thereof, subject only to the Permitted
Encumbrances, unto Trustee, in trust, for the benefit of Beneficiary to the
extent the Mortgaged Property is situated in a Deed of Trust State, or unto
Beneficiary to the extent the Mortgaged Property is situated in a Mortgage
State, against every person whomsoever lawfully claiming or to claim the same or
any part thereof.
_ Defeasance and Reconveyance: If the Secured Indebtedness shall have
been paid in full and all the other Obligations shall have been performed and
discharged in full, and all of the Commitments shall have been terminated in
whole, and all of the Letters of Credit shall have been canceled and returned to
the Issuing Bank, and the Facility Termination Date has occurred, and provided
that there exists no pending or threatened unsatisfied obligation pursuant to
the environmental indemnification in Section ____ of the Credit Agreement, then
the liens, security interests, estates and rights granted by this Deed of Trust
shall terminate; whereupon (i) with respect to any Deed of Trust State and upon
surrender to Trustee of this Deed of Trust for cancellation (which shall be made
promptly upon request by Grantor), if required by applicable
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law, Beneficiary shall execute a request for reconveyance and thereafter the
Trustee shall reconvey, without warranty, the Mortgaged Property, or that
portion thereof then held hereunder; and (ii) with respect to any Mortgage State
and Texas, the Beneficiary promptly shall execute such documents in recordable
form as may be necessary to release and/or satisfy the Mortgaged Property, or
that portion thereof then held hereunder, from the lien of and security
interests created or purported to be created by this Deed of Trust. To the
extent permitted by law, any reconveyance delivered hereunder may describe the
grantee as "the person or persons legally entitled thereto." Neither Beneficiary
(nor Trustee, if applicable) shall have any duty to determine the rights of
persons claiming to be rightful grantees of any reconveyance. Each reconveyance
of Mortgaged Property or portions thereof shall also operate as a reassignment
of all future rents, issues and profits appertaining to the Parcel(s) or
portions thereof covered by such reconveyance to the person or persons legally
entitled thereto, unless its reconveyance expressly provides otherwise.
_ Provisions Concerning Particular States: Notwithstanding anything to
the contrary herein contained:
if the State is Florida or New York (a "Mortgage
State"), this instrument shall be deemed to be and shall be enforceable
as a mortgage or open-end mortgage and/or leasehold mortgage or
open-end leasehold mortgage, and as an assignment of leases and rents,
security agreement and financing statement;
if the State is California, Colorado or Texas
(each, a "Deed of Trust State"), this instrument shall be deemed to be
and shall be enforceable as a deed of trust and/or leasehold deed of
trust and as an assignment of leases and rents, security agreement and
financing statement;
if the State is New York, the following provisions
shall apply:
(i) Notwithstanding anything to the contrary in this
Deed of Trust, the maximum aggregate principal amount of
Indebtedness that is, or under any contingency may be,
secured by this Deed of Trust (including the Grantor's
obligation to reimburse advances made by the Beneficiary
and/or any of the Lenders), either at execution or at any
time thereafter (the "Secured Amount"), is $__________,
plus amounts that Beneficiary or any Lender expends after
a declaration of Default under this Deed of Trust to the
extent that any such amounts shall constitute payment of
(i) taxes, charges or assessments that may be imposed by
law upon any Mortgaged Property; (ii) premiums on
insurance policies covering any Mortgaged Property; (iii)
expenses incurred in upholding the lien of this Deed of
Trust, including the expenses of any litigation to
prosecute or defend the rights and lien created by this
Deed of Trust; or (iv) any amount, cost or charge to which
any Lender becomes subrogated, upon payment, whether under
recognized principles of law or equity, or under express
statutory authority; then, and in each such event, such
amounts or
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costs, together with interest thereon, shall be added to
the Indebtedness secured hereby and shall be secured by
this Deed of Trust.
(ii) Pursuant to the Credit Agreement, the amount
of the Obligations may increase and decrease from time to
time as the Beneficiary and/or any Lender advances,
Grantor repays, and Beneficiary and/or any Lender
readvances sums on account of the Loans, all as more fully
described in the Credit Agreement. For purposes of this
Deed of Trust, so long as the balance of the Loans equals
or exceeds the Secured Amount, the amount of the
Obligations secured by this Deed of Trust shall at all
times equal only the Secured Amount as more fully
described in Section 2.3(c)(i) hereof. Such Secured Amount
represents only a portion of the first sums advanced by
the Lenders with respect to the Loans.
(iii) The Secured Amount shall be reduced only by
the last and final sums that the Grantor repays with
respect to the Loans and shall not be reduced by any
intervening repayments of the Loans by the Grantor. As of
the Closing Date, the total amount of the Loans exceeds
the Secured Amount, so that the Secured Amount represents
only a portion of the Obligations actually outstanding.
(iv) So long as the balance of the Loans exceeds
the Secured Amount, any payments and repayments of the
Loans by the Grantor shall not be deemed to be applied
against, or to reduce, the portion of the Obligations
secured by this Deed of Trust, as more fully described in
Section 2.3(c)(i) hereof. Such payments shall instead be
deemed to reduce only such portions of the Obligations as
are secured by mortgages encumbering real property located
outside the State of New York, which mortgages secure the
entire Obligations (except to the extent, if any, that
specific mortgages in such states contain specific
limitations on the amount secured).
If the State is Florida, (i) in addition to all
other indebtedness secured by this Deed of Trust, this Deed of Trust
shall secure also and (except as expressly permitted by Section 3.1)
shall constitute a first lien on the Mortgaged Property for all future
advances made by any Secured Creditors to the Grantor for any purpose
within twenty (20) years from the date of this Deed of Trust to the
same extent as if such advances were made on the date of the execution
of this Deed of Trust, (ii) in no event the total amount of the
Indebtedness, including future advances, that is secured by this Deed
of Trust with Mortgaged Property located in Florida shall exceed the
maximum principal amount of $__________ at any one time, plus interest
and premiums (if any) thereon and any disbursements made by Beneficiary
or Secured Creditors for the payment of taxes, levies or insurance on
the Mortgaged Property encumbered by this Deed of Trust, together with
interest on such disbursements and any other costs and fees of recovery
as provided herein.
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Wherever herein contained, the phrase "Trustee and Beneficiary, as
applicable" or any similar phrase (1) shall be deemed to refer to Beneficiary
(as mortgagee) to the extent the Mortgaged Property is situated in any Mortgage
State and Trustee shall have no rights, powers or obligations in those States
and (2) to the extent the Mortgaged Property is situated in any Deed of Trust
State, shall be deemed to refer to (a) Trustee or the applicable Individual
Trustee for the benefit of Beneficiary and (b) if the context so requires or
permits, and if Beneficiary so elects, Beneficiary.
_ Credit Agreement: The Credit Agreement includes term loans, revolving
credit loans and swing line loans and in connection therewith there may be
repayments and disbursements of principal from time to time. It is expressly
agreed that the outstanding principal balance of the Indebtedness evidenced by
the Notes and governed by the Credit Agreement may, from time to time, be
reduced to a zero balance without such repayment operating to extinguish and
release the lien, security titles and security interests created by this Deed of
Trust. This Deed of Trust shall remain in full force and effect as to any
subsequent future advances made after the zero balance without loss of priority
until the Obligations are paid in full and fully performed and satisfied, all of
the Commitments shall have been terminated in whole, all of the Letters of
Credit shall have been canceled and returned to the Issuing Bank, the Facility
Termination Date has occurred, and the Credit Agreement and all other agreements
between the Grantor and the Secured Creditors for further advances have been
terminated. Grantor waives the operation of any applicable statute, law or
regulation having a contrary effect.
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ARTICLE ________`_
WARRANTIES AND REPRESENTATIONS
For the consideration aforesaid and to protect the security of this
Deed of Trust, Grantor hereby unconditionally warrants and represents to
Beneficiary as follows:
_ Title to Mortgaged Property and Lien of this Instrument: Grantor has
good and record and marketable (or, if the State of Texas, Grantor has good and
indefeasible) title in fee (or, if and to the extent that the Mortgaged Property
includes any Encumbered Lease, good title in the leasehold) to the Land,
Buildings and Fixtures and good title to the Personalty and Leases, in all cases
free and clear of any Liens and claims of Liens except the Permitted
Encumbrances. This Deed of Trust constitutes a valid lien, deed of trust or
mortgage on the Grantor's fee and leasehold interests in the Land, the Buildings
and the Fixtures, including without limitation all of Grantor's right, title and
interest in and to any Encumbered Lease, and a valid security interest in and
to, and a valid assignment of, the Fixtures, Personalty, Leases and Rents, all
in accordance with the terms hereof, in each case subject only to the Permitted
Encumbrances.
_ [Intentionally Omitted]
_ Encumbered Leases: The Grantor hereby unconditionally warrants and
represents to the Beneficiary as follows with respect to each Encumbered Lease:
The Encumbered Lease constitutes, to the best of
Grantor's knowledge, the legal, valid and binding obligation of the
lessor thereof, and is enforceable by the lessee in accordance with its
terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or similar laws
affecting creditors' rights and remedies generally or by application of
general equity principles and the terms thereof are as set forth in the
lease documents described on Exhibit "A", copies of which have been
delivered to the Beneficiary;
All rent, additional rent and other charges
reserved therein have been paid to the extent they are payable to the
date hereof;
The Grantor enjoys the quiet and peaceful
possession of the property demised thereby in accordance with and
subject to the terms of such Encumbered Lease;
The Encumbered Lease is not subject to any other
assignments by the Grantor, and the Grantor has good right and
authority to assign and encumber the Encumbered Lease to the Trustee
and the Beneficiary;
The Grantor is not in default in any material
respect under any of the terms thereof and, to the best of its
knowledge, there are no circumstances that, with the
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passage of time or the giving of notice or both, would constitute any
material event of default thereunder; and
To the best of Grantor's knowledge the landlord
under the Encumbered Lease is not in default under any of the material
terms or provisions thereof on the part of the landlord to be observed
or performed.
_ Powers of Termination and Rights of Reverter: With respect to any
fee-owned Parcel of Mortgaged Property subject to a right of reverter or power
of termination, no event has occurred or is threatened, or is likely to occur by
virtue of the performance by Grantor of any of its Obligations under any of the
Loan Documents, which would enable the beneficiary of such right or power to
cause such reversion or termination.
_ Wetlands: There are no wetlands, tidelands or swamp and overflow
lands on the Mortgaged Property. GRANTOR SHALL BE SOLELY RESPONSIBLE FOR AND
AGREES TO INDEMNIFY TRUSTEE, BENEFICIARY AND EACH SECURED CREDITOR, PROTECT AND
DEFEND WITH COUNSEL REASONABLY ACCEPTABLE TO BENEFICIARY, AND HOLD TRUSTEE,
BENEFICIARY AND EACH SECURED CREDITOR HARMLESS FROM AND AGAINST ANY CLAIMS
(INCLUDING WITHOUT LIMITATION THIRD PARTY CLAIMS FOR PERSONAL INJURY OR REAL OR
PERSONAL PROPERTY DAMAGE), ACTIONS, ADMINISTRATIVE PROCEEDINGS (INCLUDING
INFORMAL PROCEEDINGS) JUDGMENTS, DAMAGES, PUNITIVE DAMAGES, PENALTIES, FINES,
COSTS, LIABILITIES (INCLUDING SUMS PAID IN SETTLEMENTS OF CLAIMS), INTEREST OR
LOSSES, REASONABLE ATTORNEYS' FEES (INCLUDING ANY FEES AND EXPENSES INCURRED IN
ENFORCING THIS INDEMNITY), CONSULTANT FEES, AND EXPERT FEES THAT ARISE DIRECTLY
OR INDIRECTLY FROM OR IN CONNECTION WITH THE PRESENCE ON THE MORTGAGED PROPERTY
OF WETLANDS, TIDELANDS OR SWAMP AND OVERFLOW LANDS, OR ANY BREACH OF THE
FOREGOING REPRESENTATION AND WARRANTY. THE PROVISIONS OF THIS SECTION 3.5 SHALL
SURVIVE THE TERMINATION AND RECONVEYANCE OF THIS DEED OF TRUST. THE FOREGOING
INDEMNITY SHALL INCLUDE WITHOUT LIMITATION OF THE FOREGOING INDEMNITY, THE
INDEMNITY OF EACH OF THE PARTIES INDEMNIFIED HEREIN WITH RESPECT TO CLAIMS,
DEMANDS, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL DAMAGES) LIABILITIES, CAUSES
OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS) AND MATTERS WHICH IN WHOLE OR IN PART ARE
CAUSED BY OR ARISE OUT OF THE NEGLIGENCE (WHETHER SOLE, CONTRIBUTORY,
COMPARATIVE, OR OTHERWISE) OF SUCH AND/OR ANY OTHER INDEMNIFIED PARTY OR FOR
WHICH SUCH INDEMNIFIED PARTY MAY HAVE STRICT LIABILITY.
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_ Environmental Matters: The Grantor and each Subsidiary are in
compliance with all applicable Environmental Laws and have been issued and will
maintain all required federal, state and local permits, licenses, certificates
and approvals pertaining to Hazardous Materials. Neither the Grantor nor, to the
best of Grantor's knowledge after reasonable investigation, any previous owner
or operator of the Mortgaged Property or any other Person, (a) has used or is
using the Mortgaged Property in violation of any Environmental Law; (b) has
managed, generated, stored, released, discharged, treated, or disposed of any
Hazardous Material on any portion of the Mortgaged Property; or (c) has
transferred or caused to be transferred any Hazardous Material from the
Mortgaged Property to any other location. Except for Hazardous Materials
necessary for the routine maintenance of the Mortgaged Property and as used in
the ordinary course of the Mortgagor's business, which Hazardous Material shall
be used in accordance with all applicable Environmental Laws, the Grantor
covenants that it shall not permit any Hazardous Materials to be brought on to
the Mortgaged Property, or if so brought or found located thereon, shall be
immediately removed, with proper disposal, and all environmental cleanup
requirements shall be diligently undertaken pursuant to all Environmental Laws.
Neither the Grantor nor any Subsidiary has been notified of any pending or
threatened action, suit, proceeding or investigation, and neither the Grantor
nor any Subsidiary is aware of any facts, which (i) calls into question, or
could reasonably be expected to call into question, compliance by the Grantor or
any Subsidiary with any Environmental Laws, (ii) seeks, or could reasonably be
expected to form the basis of a meritorious proceeding to seek, to suspend,
revoke or terminate any license, permit, certification or approval pertaining to
Hazardous Materials that is germane to the conduct of its business, or (iii)
seeks to cause, or could reasonably be expected to form the basis of a
meritorious proceeding to cause, any property of the Grantor or any Subsidiary
to be subject to any restrictions on ownership, use, occupancy or
transferability under any Environmental Laws.
Neither the Grantor, nor any Subsidiary, nor, to the best of Grantor's
knowledge, any previous owner or operator of the Mortgaged Property or any other
Person has used or is using the Mortgaged Property in violation of any
Environmental Law, has managed, generated, stored, released, treated, or
disposed of any Hazardous Material on any portion of the Mortgaged Property, or
transferred or caused to be transferred any Hazardous Material from the
Mortgaged Property to any other location except in compliance with all
Environmental Laws. Except for Hazardous Materials necessary for the routine
maintenance of the Mortgaged Property and as used in the ordinary course of the
Grantor's or Subsidiary's business, which Hazardous Material shall be used in
accordance with all applicable Environmental Laws, the Grantor and any
Subsidiary covenant that they shall not permit any Hazardous Materials to be
brought on to the Mortgaged Property, or if so brought or found located thereon,
shall be immediately removed, with proper disposal, and all environmental
cleanup requirements shall be diligently undertaken pursuant to all
Environmental Laws.
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ARTICLE ________`_
AFFIRMATIVE COVENANTS
Grantor hereby unconditionally covenants and agrees with Beneficiary as
follows:
_ Payment and Performance: Grantor will satisfy and perform the
Obligations, including the payment of any sums required thereby, in full and on
or before the dates the same are to be satisfied and performed.
_ Compliance with Legal Requirements: Grantor will promptly and
faithfully comply with, conform to and obey in all material respects all Legal
Requirements whether or not the same shall necessitate structural changes in or
improvements to, or interfere with the use or enjoyment of, the Mortgaged
Property, and provided that Grantor shall have the right in good faith to
contest any such Legal Requirement provided that the Mortgaged Property affected
thereby shall be in no danger of being sold, forfeited or lost pursuant to such
contest and provided that adequate reserves have been set aside by Grantor, in
accordance with Generally Accepted Accounting Principles, to pay the cost
necessary to comply with such Legal Requirement in the event Grantor fails to
prevail in such contest. Grantor will procure and continuously maintain in full
force and effect all permits, licenses and other authorizations required for
construction of improvements, for any permitted use of the Mortgaged Property or
any part thereof then being made and for the lawful and proper installation,
operation and maintenance of the Mortgaged Property. Grantor will not maintain
any nuisance on the Mortgaged Property.
_ Lien Status: Grantor will defend and protect the lien, security title
and security interest status of this Deed of Trust subject only to the Permitted
Encumbrances. If Grantor shall fail to satisfy its obligations under this
Section 4.3, Beneficiary shall have the rights granted by Section 10.7 hereof to
take such actions as Beneficiary deems necessary to defend and protect the lien,
security title and security interest status of this Deed of Trust, subject as
aforesaid. Grantor shall reimburse Beneficiary for any losses or Expenses
incurred by Beneficiary if an interest in the Mortgaged Property, other than as
permitted hereunder, is claimed by others.
_ Payment of Impositions and Other Amounts:
Grantor will duly pay and discharge, or cause to
be paid and discharged, the Impositions before the earlier of (i) the
day any fine, penalty, interest or cost may be added thereto or imposed
thereon or (ii) the day any Lien may be filed for the non-payment
thereof; provided, however, that (1) Grantor may, if permitted by law
and if such installment payment would not result in the imposition of
any fine, penalty or cost on the remaining amount then due, pay the
Impositions in installments whether or not interest shall accrue on the
unpaid balance of such Impositions, and (2) unless an Event of Default,
or any material Default, has occurred and is continuing, Grantor shall
not be
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required to pay and discharge or to cause to be paid and discharged any
such Impositions so long as (u) the validity or amount thereof shall be
contested diligently and in good faith by appropriate proceedings, (v)
the Mortgaged Property shall then be in no danger of being sold,
forfeited or lost pursuant to such contest, and (w) adequate reserves
have been set aside by Grantor to pay the Impositions, and any fine,
penalty, interest or cost that may be added thereto or imposed thereon,
in accordance with Generally Accepted Accounting Principles,
consistently applied by Grantor in connection therewith.
Notwithstanding the foregoing subsection (a), but
subject to subsection (c) below, Grantor (i) shall pay all lawful
claims and demands of mechanics, materialmen, laborers and others with
respect to the Mortgaged Property before the earlier of (y) the day any
fine, penalty, interest or cost may be added thereto or imposed thereon
or (z) the day any Lien or claim of Lien may be filed for the
non-payment thereof; and (ii) shall not create or suffer or permit any
mechanic's liens or claims of lien, materialmen's liens or claims of
lien, or other liens or claims for lien made by parties claiming to
have provided labor or materials with respect to the Mortgaged Property
(which liens and claims of lien are herein referred to as "Mechanic's
Liens") to attach to or be filed against the Mortgaged Property,
whether such Mechanic's Liens are inferior or superior to the lien of
this Deed of Trust, except to the extent permitted by subsection (c)
below.
Notwithstanding the foregoing prohibition against
Mechanic's Liens against the Mortgaged Property, Grantor, or any party
obligated to Grantor to do so, may in good faith and with reasonable
diligence by appropriate proceedings contest the validity or amount of
any Mechanic's Lien and defer payment and discharge thereof during the
pendency of such contest, provided: (i) that such contest shall have
the effect of preventing the sale or forfeiture of the affected Parcels
and any part thereof, or any interest therein, to satisfy any such
Mechanic's Lien; (ii) that, within twenty (20) days after Grantor has
been notified of the filing of any Mechanic's Lien, any affidavit
claiming a Mechanic's Lien or any notice of intention to file a
Mechanic's Lien, Grantor shall have notified Beneficiary in writing of
Grantor's intention to contest such Mechanic's Lien or to cause such
other party to contest such Mechanic's Lien; (iii) that to the extent
required by applicable Legal Requirements in connection with such
contest, Grantor shall deposit with the court or other applicable
Person such bonds or other security as is so required; and (iv) that
adequate reserves have been set aside by Grantor, in accordance with
generally accepted accounting principles, to pay in full such
Mechanic's Lien and all interest which may be due in connection
therewith.
_ Repair: Grantor will maintain and preserve the Mortgaged Property in
good working order and condition, ordinary wear and tear excepted, and will make
all repairs, replacements, renewals, additions, betterments, improvements and
alterations thereof and thereto, interior and exterior, structural and
non-structural, ordinary and extraordinary, foreseen and unforeseen, which are
necessary to keep same in such order and condition.
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_ Insurance: Grantor will maintain or cause to be maintained upon and
relating to the Mortgaged Property policies of liability and casualty insurance
in amounts and otherwise in accordance with Section ___ of the Credit Agreement
and this Section 4.6. In addition to the policies referred to above, Grantor
will maintain the following policies:
Prior to construction of any improvements on the
Mortgaged Property, an "all-risk", completed value, non-reporting
builder's risk insurance policy or policies that provide coverage
similar to the foregoing must be submitted to the Beneficiary. This
policy must be from a company and in an amount satisfactory to the
Beneficiary, must have a vandalism and malicious mischief endorsement
and must be sufficient to avoid the application of any co-insurance
provisions, must include provisions for a minimum 30-day advance
written notice of any intended policy cancellation or non-renewal, and
must designate the Beneficiary as mortgagee and loss payee in a
standard mortgagee endorsement
Address: NationsBank, National Association
One Independence Center
15th Floor, NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
The Grantor covenants to maintain or cause to be
maintained, by the Grantor and, during the construction of any
improvements on the Mortgaged Property, the general contractor, general
accident and public liability insurance against all claims for bodily
injury, death or property damage occurring upon, in or about any part
of the Mortgaged Property. The policies must be from companies and in
amounts satisfactory to the Beneficiary. The contractor's policy must
include worker's compensation coverage in an amount sufficient to
satisfy statutory requirements.
An "all-risk" permanent insurance policy must be
in effect, and an original certificate from the issuing insurance
company evidencing that the policy is in full force and effect must be
submitted to the Beneficiary. The policy must be from a company
satisfactory to the Beneficiary, must be in an amount satisfactory to
the Beneficiary, must eliminate all co-insurance provisions, must
include a Replacement Cost and Agreed Amount/Stipulated Value
Endorsement, must include a Sinkhole Endorsement, if appropriate, must
include provisions for a minimum 30-day advance written notice to the
Beneficiary of any intended policy cancellation or non-renewal, and
must designate the Beneficiary as mortgagee and loss payee in a
standard mortgagee endorsement, as its interest may appear.
The Grantor shall, at its own cost, maintain
business interruption insurance as to the Buildings now or hereafter
comprising a part of the Mortgaged Property. The policy must be from a
company and in an amount satisfactory to the Beneficiary and must
include provisions for a minimum 30-day advance written notice to the
Beneficiary of any intended policy cancellation or non-renewal.
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If, and to the extent that, the Mortgaged Property
is located within an area that has been or is hereafter designated or
identified as an area having special flood hazards by the Secretary of
Housing and Urban Development or by such other official as shall from
time to time be authorized by federal or state law to make such
designation pursuant to the National Flood Insurance Act of 1968, as
such act may from time to time be amended and in effect, or pursuant to
any other national or state program of flood insurance, the Grantor
shall carry flood insurance with respect to the Mortgaged Property in
an amount not less than the maximum amount available under the Flood
Disaster Protection Act of 1973 and the regulations issued pursuant
thereto, as amended from time to time, in form complying with the
"insurance purchase" requirement of that Act.
Each such liability insurance policy shall name
Beneficiary as an additional insured party with respect to the
Mortgaged Property, and each such casualty insurance policy shall name
Beneficiary as a loss payee, and shall provide by way of endorsements,
riders or otherwise that (i) proceeds will be payable to Beneficiary as
its interest may appear; (ii) Beneficiary will be loss payee for all
proceeds payable if the proceeds payable are equal to or greater than
$50,000 in amount on a per occurrence or claim basis; (iii) such
insurance policy shall be renewed, if renewal is available, and shall
not be canceled and further, shall not be endorsed, altered or reissued
to effect a change in coverage in any manner materially adverse to the
Beneficiary, for any reason and to any extent whatsoever unless such
insurer shall have first given Beneficiary thirty (30) days' prior
written notice thereof; (iv) such insurance policy shall not be
impaired by any act or neglect of Grantor or any use of the Mortgaged
Property for purposes more hazardous than are permitted by such policy;
and (v) Beneficiary may, but shall not be obliged to, make premium
payments to prevent any nonrenewal, cancellation, endorsement,
alteration or reissuance and such payments shall be accepted by the
insurer to prevent same.
Beneficiary shall be furnished with the original
of each such initial policy or a certificate with a duplicate of such
original policy coincident with the execution of this Deed of Trust and
satisfactory evidence of renewal thereof not less than thirty (30) days
prior to the expiration of the initial or each preceding renewal policy
together with receipts or other evidence that the premiums thereon have
been paid, with the original of each renewal policy or a certificate
with a duplicate of such renewal policy to follow as soon as available
or, in any such case, an appropriate broker's certificate in respect
thereto. Upon request by Beneficiary, Grantor shall furnish to
Beneficiary a statement certified by Grantor or a duly authorized
officer of Grantor of the amounts of insurance maintained in compliance
with this Section 4.6, a general description of the risks covered by
such insurance and of the insurance company or companies which carry
such insurance. In addition, Grantor will promptly comply with any and
all requirements of any insurer of any portion of the Mortgaged
Property and any and all rules and regulations of any insurance
commission or board of fire underwriters having jurisdiction over the
Mortgaged Property.
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_ Restoration Following Casualty: If any acts or occurrences of any
kind or nature, ordinary or extraordinary, foreseen or unforeseen, shall result
in damage to or loss or destruction of the Mortgaged Property, Grantor will give
prompt notice thereof to Beneficiary. If (a) there are sufficient insurance
proceeds or sufficient other amounts available to Grantor to fully pay for the
restoration, repair or replacement (hereinafter called "Work") of the Mortgaged
Property and (b) no Event of Default shall have occurred and be continuing, then
Grantor will so certify to Beneficiary, and will certify that it will, and
shall, within 30 days following reaching an agreement with the insurer under the
casualty insurance policy relating thereto with regard to the disbursement of
insurance proceeds commence and thereafter continue diligently to completion, to
restore, repair, replace and rebuild such Mortgaged Property as nearly as
possible to its value, condition and character immediately prior to such damage,
loss or destruction with such alterations, modifications and/or betterments
reasonably deemed necessary or desirable by Grantor in its business judgment. If
the conditions set forth in such certificate of Grantor are not satisfied with
respect to a casualty, or if Grantor fails to deliver such a certificate to
Beneficiary within 180 days following the casualty, or if Grantor shall
otherwise fail to restore, repair, replace or rebuild such Mortgaged Property as
provided herein, the insurance proceeds related thereto shall be promptly paid
to Beneficiary and applied to the outstanding balance of the Obligations.
_ Application of Proceeds: Insurance proceeds to be used for Work,
which proceeds are equal to or greater than $50,000 on a per occurrence or claim
basis, initially shall be paid to Beneficiary, and shall be paid out by
Beneficiary to Grantor from time to time as the Work progresses, subject to the
following conditions: (a) prior to the commencement thereof (other than Work to
be performed on an emergency basis to protect the Mortgaged Property or prevent
interference therewith), an architect or engineer, reasonably approved by
Beneficiary, shall be retained by Grantor (at Grantor's expense) and charged
with the supervision of the Work; (b) each request for payment by Grantor shall
be made on ten (10) days prior notice to Beneficiary and shall be accompanied by
a certificate by an executive officer of Grantor, stating that: (i) all of the
Work completed has been completed in substantial compliance with the plans and
specifications therefor; (ii) the sum requested is justly required to reimburse
Grantor for payments by Grantor to, or is justly due to, the contractor,
subcontractors, materialmen, laborers, engineers, architects or other Persons
rendering services or materials for the Work; and (iii) when added to all sums
previously paid out by Grantor, the sum requested does not exceed the value of
the Work completed to the date of such certificate; (c) the amount of insurance
proceeds remaining in the hands of Beneficiary or remaining to be disbursed by
the applicable insurance company, plus any further reserves agreed to be
maintained by Grantor in conformity with Generally Accepted Accounting
Principles in connection with the Work, will in Beneficiary's reasonable
judgment be sufficient to complete the Work; (d) each request shall be
accompanied by certification by an executive officer of Grantor or copies of
waivers of Lien reasonably satisfactory in form and substance to Beneficiary
covering that part of the Work for which payment or reimbursement is being
requested; provided, however, that in the event it is customary State practice
not to grant such waivers prior to the making of such payments, Grantor shall
have obtained affidavits from the parties requesting such payment (i) stating
the amount
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then due and (ii) promising the delivery of the waiver upon the making of the
payment; (e) a Default has not occurred and is not continuing since the hazard,
casualty or contingency giving rise to payment of the insurance proceeds
occurred; (f) in the case of the request for the final disbursement, such
request is accompanied by a copy of any certificates of occupancy or other
certificate required by any Legal Requirement to render occupancy of the damaged
portion of the Mortgaged Property lawful; and (g) if, in Beneficiary's
reasonable judgment, the amount of such insurance proceeds will not be
sufficient to complete the Work (which determination may be made prior to or
from time to time during the performance of the Work), Grantor shall maintain
adequate reserves in conformity with Generally Accepted Accounting Principles
equal to an amount of money which when added to such insurance proceeds will be
sufficient, in Beneficiary's reasonable judgment, to complete the Work.
Insurance proceeds to be used for Work, which proceeds are less than $50,000 on
a per occurrence or claim basis, initially shall be paid to Grantor and shall be
used by Grantor to perform such Work in accordance with its certificate
delivered pursuant to Section 4.7, with any excess thereof used to repay the
Obligations in accordance with Section 4.7. In the event Grantor elects to
restore, repair, replace or rebuild the Mortgaged Property and subsequently
fails to comply with any of the conditions set forth herein to disbursement of
insurance proceeds, any proceeds remaining to be disbursed, whether held by
Grantor, Beneficiary or an insurance company, shall be paid to Beneficiary and,
at its option, applied to the outstanding balance of the Obligations.
_ Inspection: Grantor will permit Trustee, Beneficiary, any of the
Lenders and any of their agents, representatives and employees, upon reasonable
advance notice to Grantor to inspect the Mortgaged Property at any reasonable
time.
_ Leases:
Grantor shall promptly and fully keep, observe and
perform, or cause to be kept, observed and performed, all of the
material terms, covenants, provisions and agreements imposed upon or
assumed by Grantor under any Leases, now or hereafter in effect,
including any amendments or supplements to such Leases covering any
part of the Mortgaged Property that is affected by the terms,
covenants, provisions and agreements imposed upon or assumed by Grantor
in such Leases and Grantor will not do or fail to do, or permit or fail
to permit to be done, any act or thing, the doing or omission of which
will give any party a right to terminate any of such Leases or, in the
case of any tenant, to ▇▇▇▇▇ the rental or other material payment due
thereunder;
If Grantor shall, in any manner, fail to comply
with subsection (a) above, Grantor agrees that Beneficiary may (but
shall not be obligated to) take, upon ten (10) days' written notice to
Grantor (or upon lesser notice, or without notice, if Beneficiary
reasonably deems that the same is required to protect its interest in
the Mortgaged Property), any action which Beneficiary shall reasonably
deem necessary or desirable to keep, observe and perform or cause to be
kept, observed or performed any such terms, covenants, provisions or
agreements and to enter upon the Mortgaged Property and take all action
thereon as may be necessary therefor, or to prevent or cure
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any default by Grantor in the performance of or compliance with any of
Grantor's covenants or obligations under said Leases. Beneficiary may
rely on any notice of default received from any tenant unless, in
connection with any such default or alleged default Grantor in good
faith notifies Beneficiary of Grantor's election to contest such
default by appropriate procedures and diligently pursues such contest.
Grantor shall promptly deliver to Beneficiary a copy of any notice
relating to defaults received from any tenant that is a party, or the
trustee, receiver or successor for or to a party, to any of said
Leases. Beneficiary may expend such sums of money as are reasonable and
necessary for any such purposes, and Grantor hereby agrees to pay to
Beneficiary, immediately upon demand, all sums so expended by
Beneficiary, together with interest thereon from the date of such
payment at the Default Rate, and until so paid by Grantor, all sums so
expended by Beneficiary and the interest thereon shall be added to the
Obligations secured by the lien and legal operation and effect of this
Deed of Trust;
Grantor will not, without the prior written
consent of the Beneficiary, amend, modify, terminate or cancel any of
the Leases of any part of the Mortgaged Property.
_ Appraisals: The Grantor agrees and consents to the Beneficiary
ordering a current written appraisal or re-appraisal of the Mortgaged Property
to provide the Beneficiary (at the Grantor's expense) at least every three
years, and more frequently if reasonably requested by the Beneficiary. Such
appraisal shall be by a qualified appraiser designated by and satisfactory to
the Beneficiary and must be satisfactory to the Beneficiary in form and
substance.
_ Taxes: Grantor shall pay, together with interest, fines, and
penalties, if any, any documentary stamp, recording, transfer, mortgage,
intangibles or other taxes or fees whatsoever due under the laws of the State in
connection with the making, execution, delivery, filing of record, recordation,
assignment, release, or discharge of any of the Loan Documents or in connection
with any advances made thereunder. This obligation shall survive the repayment
of the Obligations and shall continue for so long as Beneficiary could be
assessed for such taxes or fees, or for penalties or interest with respect to
such taxes or fees.
_ Collection Costs: In the event that this Deed of Trust is foreclosed,
or in the event this Deed of Trust is put into the hands of an attorney for
collection, suit, action or foreclosure, or in the event of the foreclosure of
any mortgage prior to or subsequent to this Deed of Trust, in which proceeding
Beneficiary is made a party, or in the event of the bankruptcy of Grantor, or an
assignment by the Grantor for the benefit of creditors, Grantor, its successors
and assigns, shall be chargeable with and agrees to pay all costs of collection
and defense, including an amount as attorneys' fees not to exceed such amount as
may be permitted by the laws of the applicable State including reasonable actual
attorneys' fees for all appellate proceedings and post-judgment action involved
therein, which shall be due and payable at once together with all required
service or use taxes; the payment of which charges, fees and taxes together with
all costs and expenses, shall be secured hereby, and may be recovered in any
suit or action hereupon or hereunder.
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_ [Intentionally Omitted.]
_ Estoppel Certificates: Grantor, upon request of Beneficiary, shall,
from time to time, certify to the best of its knowledge to Beneficiary or to any
permitted assignee of this Deed of Trust, by an instrument in form satisfactory
to Beneficiary or such assignee, in its reasonable discretion, duly
acknowledged, inter alia, the amount then owing under the Loan Documents and the
date through which interest thereon has been paid, and whether any offsets,
counterclaims, credits, or defenses exist against payment thereof or performance
of any Obligation of Grantor under the Loan Documents or this Deed of Trust,
within ten (10) days of such request. Beneficiary and any permitted assignee of
this Deed of Trust shall have the right to rely on any such certification.
_ Creation and Recordation of Additions and Betterments: Grantor shall
arrange for timely recording or filing as required of all documents having to do
with additions to or betterments of any portion of the Mortgaged Property, and
the covenants and agreements set forth in this Deed of Trust shall apply to all
such additions and betterments.
_ Consents: Grantor will obtain and maintain the consent or approval of
any Person whose consent or approval is required to the granting of a Lien on
any interest in the Mortgaged Property to the Beneficiary.
_ Covenants Relating to Encumbered Leases:
Grantor will make all payments and otherwise
perform in all material respects all obligations in respect of all
Encumbered Leases, and, subject to subsection (b) below, will maintain
such Encumbered Leases in full force and effect and not allow such
Encumbered Leases to lapse or be terminated (except in connection with
the exercise by Grantor of a purchase option in respect of the real and
other property subject to such Encumbered Lease) or any rights to renew
such Encumbered Leases or options to purchase the premises demised
thereby to be forfeited or canceled. Grantor will notify Beneficiary of
any material default by any party with respect to such Encumbered
Leases.
Except with respect to the termination of an
Encumbered Lease in connection with the exercise by Grantor of a
purchase option in respect of any real and other property subject to
any Encumbered Lease, Grantor will not, without the written consent of
the Beneficiary, cancel or terminate any Encumbered Lease or consent to
or accept any cancellation or termination thereof, or amend or
otherwise modify any Encumbered Lease or give any consent, waiver or
approval thereunder, or waive any default thereunder or breach thereof,
agree in any manner to any other amendment, modification or change of
any term or condition of any Encumbered Lease, or take any other action
in connection with any Encumbered Lease that would, or would be
reasonably likely to, individually or in the aggregate, (A) impair the
rights and interests of the Beneficiary, (B) result in expiration or
termination of any Encumbered Lease prior
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to ________ __, ____, or (C) prevent the unfettered use by the Grantor
of the premises leased thereunder for any and all activities related to
the operation of __________________________. Grantor shall exercise all
rights to renew the Encumbered Lease by timely notice to the Lessor as
required by the Encumbered Lease so that the Encumbered Lease will not
expire or terminate prior to ________ __, ____.
Subject to the foregoing, if Grantor defaults
under subsection (a) hereof by failing to make any payment required to
be made by Grantor pursuant to the provisions of any Encumbered Lease
or to keep, observe or perform, or cause to be kept, observed or
performed, any of the terms, covenants, provisions or agreements of any
Encumbered Lease (unless waived by lessor under such Encumbered Lease),
Grantor agrees that Beneficiary may (but shall not be obligated to)
take any action on behalf of Grantor, to keep or cause to be kept,
observed or performed any such terms, covenants, provisions or
agreements and to enter upon the Mortgaged Properties (after reasonable
advance notice to Grantor) and take all such action thereon as may be
reasonably necessary therefor, and all money so expended by
Beneficiary, with interest thereon at the Default Rate from the date of
each such expenditure, shall be paid by Grantor to Beneficiary promptly
upon demand by Beneficiary and shall be added to the indebtedness
secured by this Deed of Trust.
Grantor covenants and agrees that, unless
Beneficiary shall otherwise expressly consent in writing, neither
Grantor nor its successors or assigns shall suffer or permit the fee
title to the property demised by any Encumbered Lease and the leasehold
estate thereunder to merge, it being understood and agreed that said
estates shall always remain separate and distinct, notwithstanding the
union of said estates in any person whomever by purchase or otherwise;
and in case Grantor acquires the fee title or any other estate, title
or interest in the Mortgaged Property, this Deed of Trust shall attach
to and cover and be a lien upon the fee title or such other estate so
acquired, and such fee title or other estate shall, without further
assignment, mortgage or conveyance, become and be subject to the lien
of and covered by this Deed of Trust.
If any Encumbered Lease shall be terminated prior
to the natural expiration of its term due to default by the lessee or
tenant thereunder, and if, pursuant to any provision of such Encumbered
Lease, the Beneficiary or its designee shall acquire from the lessor a
new lease of the Mortgaged Property, Grantor shall have no right,
title, or interest in or to such new lease or the leasehold estate
created thereby, or renewal privileges therein contained.
_ Lessor's Bankruptcy:
Grantor acknowledges that pursuant to Section 365
of the Bankruptcy Act it is possible that a trustee in bankruptcy of
the Lessor under an Encumbered Lease, if any, or Lessor as a
debtor-in-possession could reject the Encumbered Lease, if any, in
which case Grantor, as lessee, would have the Election described in
Section 365(h) of the
▇-▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇ to treat such Encumbered Lease as terminated by such
rejection or, in the alternative, to remain in possession for the
balance of the term of the Encumbered Lease and any renewal or
extension thereof that is enforceable by the lessee under applicable
nonbankruptcy law.
Grantor covenants that it will not suffer or permit the
termination of the Encumbered Lease by exercise of the Election or
otherwise without the prior written consent of Beneficiary. Grantor
acknowledges that since the Encumbered Lease is a primary part of the
security for the Obligations secured hereby, it is not anticipated that
Beneficiary would consent to termination of the Encumbered Lease in
connection with any such election and Beneficiary shall not under any
circumstances be obliged to give such consent.
In order to secure the covenant made in this
Section 4.19 and as security for the Obligations, Grantor assigns the
Election and all rights related thereto to Beneficiary. Grantor
acknowledges and agrees that the foregoing assignment of the Election
and related rights is one of the rights which Beneficiary may use at
any time in order to protect and preserve the other rights and
interests of Beneficiary under this Deed of Trust, since exercise of
the Election in favor of terminating the Encumbered Lease would
constitute waste hereunder.
Grantor acknowledges and agrees that the Election is in
the nature of a remedy and is not a property interest which Grantor can
separate from the Encumbered Lease. Therefore, Grantor agrees that
exercise of the Election in favor of preserving the right to possession
under the Encumbered Lease shall not be deemed to constitute a taking
or sale of the Mortgaged Property by Beneficiary and shall not entitle
Grantor to any credit against the Obligations secured by this Deed of
Trust.
Grantor acknowledges and agrees that in the event
the Election is exercised in favor of Grantor remaining in possession,
Grantor's resulting rights under the Encumbered Lease, as adjusted by
the effect of Section 365 of the Bankruptcy Act, shall then be part of
the Mortgaged Property and shall be subject to the lien created by this
Deed of Trust.
_ Proceeds of Sales of Assets: All proceeds of any sale of all or any
part of the Mortgaged Property shall be paid to the Beneficiary and applied to
reduce the outstanding balance of the Obligations in accordance with the Credit
Agreement.
_ Change of Name or Address: Within 10 days following any change in
Grantor's name or address (as specified in the Loan Documents), Grantor shall
give written notice of such change to Beneficiary, and shall promptly execute
(and acknowledge, as necessary) all documents and agreements reasonably required
by Beneficiary or the Secured Creditors to confirm or maintain the security
interests granted herein or in the other Loan Documents.
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_ Environmental Assessment Reports: The Grantor agrees, upon reasonable
request of the Beneficiary, to provide the Beneficiary (at the Grantor's or
Subsidiary's expense) with a current environmental assessment report of the
Mortgaged Property within a reasonable time after such request. Such assessment
report shall be in a form satisfactory to the Beneficiary and from an
environmental engineer or consultant reasonably satisfactory to the Beneficiary.
_ Notice of and Response to Environmental Complaint: Grantor shall give
to the Beneficiary immediate written notice of any complaint, order, directive,
claim, citation or notice by any governmental authority or any Person to
Grantor, any Subsidiary or any successor relating to any (a) violation or
alleged violation by the Grantor or any Subsidiary of any Environmental Law; (b)
release or threatened release by or on behalf of the Grantor or any Subsidiary,
or at any facility or property owned or leased or operated by Grantor or any
Subsidiary, of any Hazardous Material; or (c) liability or alleged liability of
the Grantor or any Subsidiary for the costs of cleaning up, removing,
remediating or responding to a release of Hazardous Materials. Such notice shall
include, among other information, the name of the party making the claim, the
nature of the claim and the actual or potential amount of the claim. Grantor
shall, within the time period permitted and to the extent required by the
applicable Environmental Law or the governmental authority responsible for
enforcing such Environmental Law, remove, remedy, or respond to or cause to be
removed, remedied or responded to, any violation of any Environmental Law or any
release of any Hazardous Material or satisfy any liability for the costs of
cleaning up, removing, remediating or responding to a release of Hazardous
Materials.
_ Indemnificaition: THE GRANTOR HEREBY AGREES THAT IT WILL REIMBURSE
THE TRUSTEE, THE BENEFICIARY AND THE SECURED CREDITORS FOR, AND DEFEND,
INDEMNIFY AND HOLD THE TRUSTEE, THE BENEFICIARY AND THE SECURED CREDITORS, AND
THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM AND
AGAINST, ANY AND ALL CLAIMS, COSTS, EXPENSES, LOSSES, PENALTIES, LIABILITIES AND
DAMAGES (INCLUDING, WITHOUT LIMITATION, ASSESSMENT AND CLEANUP COSTS AND
REASONABLE ATTORNEYS', CONSULTANTS' AND OTHER EXPERTS' FEES AND EXPENSES) AND
ALL JUDGMENTS, FINES AND PENALTIES INCURRED, ENTERED OR LEVIED AGAINST THE
TRUSTEE, THE BENEFICIARY OR SECURED CREDITORS BY ANY GOVERNMENTAL AGENCY OR
AUTHORITY ARISING DIRECTLY OR INDIRECTLY FROM, OR AS A RESULT OF OR IN
CONNECTION WITH (A) THE USE OF THE MORTGAGED PROPERTY; (B) THE USE OF THE
FACILITIES THEREON; (C) THE USE, GENERATION, STORAGE, TRANSPORTATION, TREATMENT,
EMISSION, DISCHARGE, DISPOSAL, RELEASE OR HANDLING OF ANY HAZARDOUS MATERIALS
AT, UPON OR FROM THE MORTGAGED PROPERTY; OR (D) THE VIOLATION OR ALLEGED
VIOLATION OF ANY ENVIRONMENTAL LAW BY GRANTOR OR ANY SUBSIDIARY. THE FOREGOING
INDEMNITY SHALL INCLUDE WITHOUT LIMITATION OF THE FOREGOING
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INDEMNITY, THE INDEMNITY OF EACH OF THE PARTIES INDEMNIFIED HEREIN WITH RESPECT
TO CLAIMS, DEMANDS, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL DAMAGES)
LIABILITIES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) AND MATTERS WHICH IN
WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE (WHETHER SOLE,
CONTRIBUTORY, COMPARATIVE, OR OTHERWISE) OF SUCH AND/OR ANY OTHER INDEMNIFIED
PARTY OR FOR WHICH SUCH INDEMNIFIED PARTY MAY HAVE STRICT LIABILITY. THE
GRANTOR'S OBLIGATIONS UNDER THIS SECTION 4.24 SHALL SURVIVE THE REPAYMENT OF THE
OBLIGATIONS AS DEFINED IN THE CREDIT AGREEMENT, CANCELLATION OF THE LETTERS OF
CREDIT, THE OCCURRENCE OF THE FACILITY TERMINATION DATE, AND EXPIRATION OR
TERMINATION OF THIS DEED OF TRUST OR ANY FORECLOSURE OR A DEED IN LIEU OF
FORECLOSURE OF THIS DEED OF TRUST OR OTHER COLLATERAL SECURING THE OBLIGATIONS.
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ARTICLE ________`_
NEGATIVE COVENANTS
Grantor hereby covenants and agrees with Beneficiary that, until all of
the Obligations shall have been fully paid, performed, satisfied and discharged,
all of the Commitments shall have been terminated in whole, all of the Letters
of Credit shall have been canceled and returned to the Issuing Bank and the
Facility Termination Date has occurred:
_ Use Violations: Grantor will not use, maintain, operate or occupy, or
allow the use, maintenance, operation or occupancy of, any portion of the
Mortgaged Property in any manner which would result in a violation of Section
4.2 above or make void, voidable or cancelable, or substantially increase the
premium of, any insurance then in force with respect thereto.
_ Waste: Grantor will not commit or permit any waste of the Mortgaged
Property or permit any nuisance to be maintained thereon.
_ Transfer of Mortgaged Property; Partial Release: Grantor will not,
without the prior written consent of Beneficiary acting at the direction of the
Required Lenders, permit any of the Mortgaged Property to be sold, transferred,
conveyed, mortgaged, pledged, encumbered, disposed of, leased or removed at any
time (any or all of the foregoing being referred to herein as a "Transfer"). If
such Transfer is permitted by the Required Lenders, then, upon at least ten (10)
days' prior notice to Beneficiary, Grantor shall have the right to obtain from
the Trustee and the Beneficiary, as applicable, the release or reconveyance of
such transferred portions of the Mortgaged Property. As a condition of any such
release or reconveyance, (i) Grantor shall pay all trustees' fees, recording
fees, escrow fees, attorneys' fees and other costs and expenses incurred by
Beneficiary and/or Trustee in connection with any release or reconveyance given
hereunder; and (ii) Grantor shall deliver to Beneficiary such evidence as
Beneficiary reasonably requests that (A) such release or reconveyance of any
portion of the Mortgaged Property can be done in compliance with all applicable
subdivision and other laws and regulations, and (B) Beneficiary's and the
Secured Creditors' rights and remedies with respect to the remaining Mortgaged
Property under the Loan Documents will not be impaired by such release or
reconveyance.
_ Rights of Reverter and Powers of Termination: With respect to any
fee-owned Parcel of Mortgaged Property subject to a right of reverter or power
of termination, and so long as such right or power is or may be enforceable,
Grantor:
will not take or omit to take any action or change
the use of such Parcel or otherwise so as to enable the beneficiary of
such right or power to enforce or obtain the benefit of such reversion
or termination; and
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will not file for or otherwise initiate any
proceedings to abandon such Parcel.
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ARTICLE ________`_
DEFAULT AND FORECLOSURE
_ Remedies: If an Event of Default shall have occurred, and all or any
portion of the Obligations then remaining unpaid shall have been declared due
and payable in accordance with the Loan Documents, then, without notice or
demand, which are hereby expressly waived to the extent permitted under
applicable law, the Trustee or Beneficiary, as applicable, may exercise any or
all of the following rights, remedies and recourses:
Entry Upon Mortgaged Property: To the extent
permitted by applicable Legal Requirements, enter upon all or any part
of the Mortgaged Property and take exclusive possession thereof and of
all books, records and accounts relating thereto. If Grantor remains in
possession of all or any part of the Mortgaged Property after an Event
of Default and without Beneficiary's prior written consent thereto,
Trustee or Beneficiary, as applicable, may invoke any and all legal
remedies to dispossess Grantor, including without limitation one or
more actions for forcible entry and detainer, trespass to try title and
writ of restitution. Nothing contained in the foregoing sentence shall,
however, be construed to impose any greater obligation or any
prerequisites to acquiring possession of the Mortgaged Property after
an Event of Default than would have existed in the absence of such
sentence.
Operation of Mortgaged Property:
1____ To the extent permitted by applicable Legal
Requirements, by itself or by the appointment of a
receiver in accordance with applicable Legal Requirements,
hold, lease, manage, operate or otherwise use or permit
the use of all or any portion of the Mortgaged Property,
either by itself or by other persons, firms or entities,
in such manner, for such time and upon such other terms as
Trustee or Beneficiary, as applicable, may deem to be
prudent and reasonable under the circumstances (making
such repairs, alterations, additions and improvements
thereto and taking any and all other action with reference
thereto, from time to time, as Beneficiary shall
reasonably deem necessary or desirable), and apply all
Rents and other amounts collected by Trustee or
Beneficiary in connection therewith in accordance with the
provisions of Section 6.6 below.
2____ To the extent permitted by applicable Legal
Requirements, as attorney-in-fact or agent of the Grantor,
or in its own name as Beneficiary or by the appointment of
a receiver in accordance with applicable Legal
Requirements and under the powers herein granted, hold,
operate, manage, and control all or any portion of the
Mortgaged Property and conduct the business, if any,
thereof, either personally or by its agents, and to
exercise the powers described in Section 8.3 hereof. Such
remedies may be exercised cumulatively
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and concurrently, and in this respect Beneficiary shall be
entitled to avail itself of the benefits and rights stated
in Section 6.3 below.
Foreclosure:
3____ Institute a proceeding, judicial or
otherwise, for the complete foreclosure of this Deed of
Trust to the fullest extent permitted by law; or (ii)
institute a proceeding or proceedings, judicial or
otherwise, for the partial foreclosure of this Deed of
Trust, as permitted by applicable Legal Requirements for
the portion of the Obligations then due and payable, with
this Deed of Trust then continuing unimpaired and without
loss of priority so as to secure the balance of the
Obligations.
Special State Provisions:
4____ California. To the extent the applicable
portion of the Mortgaged Property is situated in the State
of California, such foreclosure proceedings shall include
without limitation non-judicial foreclosure pursuant to
exercise of a power of sale in accordance with the
provisions of California law, including without
limitation, the California Civil Code and the California
Code of Civil Procedure, as amended, supplemented and/or
superseded from time to time, in accordance with the
following: upon the occurrence of an Event of Default,
Beneficiary may execute and deliver to Trustee a written
declaration of default and demand for sale and written
notice of default and of election to cause all or any part
of the Mortgaged Property to be sold, which notice (or a
similar statutory notice prepared by Trustee) Trustee
shall cause to be filed for record in the office of the
recorder of each county wherein any part of the Mortgaged
Property is situated; and after the lapse of such time as
may then be required by law following the recordation of
such notice of default, and notice of sale having been
given as then required by law, Trustee, without demand on
Grantor, shall sell such property at the time and place
fixed by it in such notice of sale, either as a whole or
in separate parcels and in such order as Beneficiary may
direct (Grantor waiving any right to direct the order of
sale), at public auction to the highest bidder for cash in
lawful money of the United States (or cash equivalents
acceptable to Trustee to the extent permitted by
applicable law), payable at the time of sale. Trustee may
postpone the sale of all or any part of the Mortgaged
Property by public announcement at such time and place of
sale, and from time to time after any such postponement
may postpone such sale by public announcement at the time
fixed by the preceding postponement. Trustee shall deliver
to the purchaser at such sale its deed conveying the
property so sold, but without any covenant or warranty,
express or implied, and the recitals in such deed of any
matters or facts shall be conclusive proof of the
truthfulness thereof. Any Person, including Trustee or
Beneficiary, may purchase at such sale, and any bid by
Beneficiary may be, in whole or in part, in the form of
cancellation of all or any part of the
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Obligations. Any such sale shall be free and clear of any
interest of Grantor and of any lease, encumbrance or other
matter affecting the property so sold which is subject or
subordinate to this Deed of Trust, except that any such
sale shall not result in the termination of any such lease
(A) if and to the extent otherwise provided in any
estoppel or other agreement executed by the tenant under
such lease and Beneficiary, or (B) to the extent permitted
by applicable law, if the purchaser at such sale gives
written notice to such tenant, within 30 days after date
of sale, that the lease will continue in effect.
5____ Colorado. To the extent the applicable
portion of the Mortgaged Property is situated in the State
of Colorado, the following provisions shall apply:
(A) If any portion of the Mortgaged
Property is leased or demised, and as additional
security for the Obligations secured hereby,
Grantor hereby assigns and pledges to Beneficiary
the Rents, provided that Grantor shall, prior to
acceleration hereunder or abandonment of the Land
and Improvements, have the right to collect and
retain the Rents as they become due and payable.
Without notice to or prior consent of the Grantor,
upon an Event of Default, acceleration hereunder
or abandonment of the Land and Improvements,
Beneficiary, in person, by agent or by judicially
appointed receiver, shall be entitled to enter
upon, take possession of and manage the Land and
Improvements, and to collect the Rents, including
those past due. All Rents collected by Beneficiary
or such receiver shall be applied first to payment
of the costs of management of the Land and
Improvements and collection of the Rents,
including, but not limited to, receiver's fees,
premiums on receiver's bonds and the Obligations
secured hereby. Beneficiary and such receiver
shall be liable to account only for those Rents
actually received.
(B) Beneficiary and/or the Receiver may
exercise any and all applicable remedies available
to the secured party pursuant to the Colorado
Revised Statutes.
6____ Texas. To the extent the applicable portion
of the Mortgaged Property is situated in the State of
Texas, such foreclosure proceedings shall include without
limitation non-judicial foreclosure pursuant to a power of
private sale in accordance with Section 51.002 of the
Texas Property Code, as amended, supplemented and/or
superseded from time to time, in accordance with the
following: upon the occurrence of an Event of Default, it
shall thereupon, or at any time thereafter, be the duty of
the Trustee, at the request of Beneficiary (which request
is hereby conclusively presumed), to enforce this Deed of
Trust by selling, in one or more sales as Trustee may
elect, the
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Mortgaged Property situated in the State of Texas and then
subject to the lien hereof; and after advertising the
time, place and terms of the sale of the Mortgaged
Property then subject to the lien hereof, and mailing and
filing notices as required by Section 51.002 of the Texas
Property Code, as then amended, supplemented and/or
superseded, and otherwise complying with said statute, the
Trustee shall sell the Mortgaged Property then subject to
the lien hereof, at public auction in accordance with such
notices on the first Tuesday in any month between the
hours of 10:00 a.m. and 4:00 p.m. to the highest bidder
for cash in lawful money of the United States, selling all
of the Mortgaged Property as an entirety or in such
parcels as the Trustee may elect, and make due conveyance
to the purchaser or purchasers, with general warranty
binding Grantor, its successors and assigns. The
Beneficiary may, at its option, accomplish all or any of
the aforesaid in such manner as permitted or required by
Section 51.002, Property Code of the State of Texas
relating to the sale of real estate or by Chapter 9 of the
Texas Business and Commerce Code relating to the sale of
collateral after default by a debtor (as said section and
chapter now exist or may be hereinafter amended or
succeeded), or by any other present or subsequent articles
or enactments relating to same. In the event of a
foreclosure of the Mortgaged Property, the Grantor
expressly acknowledges and agrees that the fair market
value of the Mortgaged Property shall be deemed to be the
value determined by an appraisal obtained by the
Beneficiary prior to or on such foreclosure date. The
Grantor expressly waives any right or remedy set forth in
Section 51.003, Property Code of the State of Texas with
respect to such fair market value. The recitals in the
conveyance to the purchaser or purchasers of the Mortgaged
Property shall be full and conclusive evidence of the
truth of the matter therein stated, and all prerequisites
to such sale shall be presumed to have been performed and
such sale and conveyance shall be conclusive against the
Grantor, its successors and assigns. Said sale shall
forever be a bar against the Grantor, its successors and
assigns, and all other persons claiming under Grantor.
This Instrument shall be effective as a mortgage as well
as a deed of trust and upon the occurrence of an Event of
Default may be foreclosed as to any of the Mortgaged
Property in any manner permitted by applicable law. To the
extent, if any, required to cause this Instrument to be so
effective as a mortgage, as well as a deed of trust,
Grantor hereby mortgages the Mortgaged Property to Trustee
and Beneficiary. In addition to and cumulative of the
remedies provided in this subsection (d)(i), the
Beneficiary may foreclose or cause to be foreclosed the
lien and security interest of this Deed of Trust, in whole
or in part, through judicial foreclosure or in any other
manner as may at any time be authorized under the laws of
the State of Texas. Beneficiary shall have the right to
bid for the Mortgaged Property situated in Texas and to
become the purchaser at any sale made pursuant to this
subsection (d)(i), if it is the highest bidder therefor,
and in lieu of paying cash therefor may make settlement
for the purchase price by crediting against the
Obligations the amount of the bid made, after deducting
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therefrom the expenses of the sale, the cost of any
enforcement proceeding hereunder and any other sums which
Trustee or Beneficiary is authorized to deduct under the
terms hereof, to the extent necessary to satisfy such bid.
If foreclosure is commenced by the Trustee, the
Beneficiary may at any time before the sale direct the
Trustee to abandon the sale, and may at any time or times
thereafter direct the Trustee to again commence
foreclosure; or, irrespective of whether foreclosure is
commenced by the Trustee, the Beneficiary may at any time
after an Event of Default institute suit for foreclosure
of the lien of this Deed of Trust. If Beneficiary should
institute suit for foreclosure of the lien of this Deed of
Trust, Beneficiary may at any time before the entry of
final judgment dismiss the same, and require the Trustee
to sell all or any part of the Mortgaged Property situated
in Texas in accordance with the provisions of this Deed of
Trust. No single sale or series of sales by the Trustee or
by any substitute or successor Trustee under this Deed of
Trust and no judicial foreclosure shall extinguish the
lien or exhaust the power of sale under this Deed of Trust
except with respect to the items of property sold, but
such lien and power shall exist for so long as, and may be
exercised in any manner provided by law or as provided in
this Deed of Trust as often as the circumstances require
to give Beneficiary full relief hereunder. Grantor agrees
for itself and its trustees, receivers, successors and
assigns that if any of them shall hold possession of the
Mortgaged Property or any part thereof subsequent to
foreclosure of the lien hereof, Grantor, or the parties so
holding possession, shall become and be considered as
tenants at will of the purchaser or purchasers at such
foreclosure sale or sales; and any such tenant failing or
refusing to surrender possession upon demand shall be
guilty of forcible detainer and shall be liable to such
purchaser or purchasers for rental on said premises, and
shall be subject to eviction and removal, forcible or
otherwise, with or without process of law, all damages
which may be sustained by any such tenant as a result
thereof being hereby expressly waived.
Sale: To the extent permitted by applicable Legal
Requirements, sell or offer for sale the Mortgaged Property, in such
portions, order and parcels as Trustee or Beneficiary, as the case may
be, may determine, with or without having first taken possession of
same, to the highest bidder for cash in lawful money of the United
States at public auction in accordance with applicable Legal
Requirements, or the UCC, and in the event of a sale, by foreclosure or
otherwise, of less than all of the Mortgaged Property, this Deed of
Trust shall continue as a lien and security interest on the remaining
portion of the Mortgaged Property. Trustee or Beneficiary, as the case
may be, may postpone any sale by public announcement at the time and
place noticed for the sale. If the Mortgaged Property consists of
several lots, Parcels or items of property, Trustee or Beneficiary, as
the case may be, may, in its sole discretion and to the extent
permitted by applicable law: (i) designate the order in which such
lots, parcels or items shall be offered for sale or sales, or (ii)
elect to sell such lots, parcels or items through a single sale, or
through two or more successive sales or in any other manner Trustee or
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Beneficiary, as the case may be, deems in its best interest. Should
Trustee or Beneficiary, as the case may be, desire that more than one
sale or other disposition of the Mortgaged Property or any portion
thereof be conducted simultaneously, or successively, on the same day,
or at such different days or times and in such order as Trustee or
Beneficiary, as the case may be, may deem to be in its best interests,
no such sale shall terminate or otherwise affect the lien and security
interest of this Deed of Trust on any part of the Mortgaged Property
not sold until all the Obligations have been fully satisfied and all
Commitments of the Lenders under the Credit Agreement have been fully
terminated and all Letters of Credit issued under the Credit Agreement
shall have been canceled and returned to the Issuing Bank, and the
Facility Termination Date has occurred. Grantor shall pay the Expenses
of any sale of the Mortgaged Property, whether one or more, and of any
judicial proceedings wherein the same may be made, including reasonable
compensation to Trustee and Beneficiary, their agents and counsel, and
shall pay all expenses, liabilities and advances made or incurred by
Trustee or Beneficiary, as the case may be, in connection with such
sale or sales, together with interest on all such advances made by
Trustee or Beneficiary, as the case may be, at the Default Rate. Upon
any sale hereunder, Trustee or Beneficiary, as the case may be, shall
execute and deliver to the purchaser or purchasers a deed or deeds
conveying the property so sold, but without any covenant or warranty
whatsoever, express or implied, whereupon such purchaser or purchasers
shall be let into immediate possession; and the recitals in any such
deed or deeds of facts, such as default, the giving of notice of
default and notice of sale, and other facts affecting the regularity or
validity of such sale or disposition, shall be conclusive proof of the
truth of such facts; and any such deed or deeds shall be conclusive
against all persons as to such facts recited therein.
Trustee or Receiver: Prior to, upon or at any time
after, commencement of foreclosure of the lien, security title and
security interest provided for herein or any legal proceedings pursuant
hereto, make application to a court of competent jurisdiction for
appointment of a receiver of the Mortgaged Property. Such application
may be made as a matter of strict right and without notice to Grantor
(unless notice is required by applicable Legal Requirements and such
right of notice may not be waived) or regard to the adequacy of the
Mortgaged Property or insolvency of the Grantor or any person who may
be legally or equitably liable to pay the Obligations and without
giving bond to Grantor (unless bond is required by applicable Legal
Requirements and such right of bond may not be waived), and Grantor
does hereby irrevocably consent to such appointment. Any such receiver
shall have all the usual powers and duties of receivers in similar
cases, including the full power to rent, maintain and otherwise operate
the Mortgaged Property all upon such terms as may be approved by the
court, and shall apply the Rents in accordance with the provisions of
this Deed of Trust.
Separate Sales: To the extent permitted by
applicable Legal Requirements, the Mortgaged Property may be sold in
one or more Parcels and in such manner and order as Trustee and
Beneficiary, as applicable, in their sole discretion, may
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elect, it being expressly understood and agreed that the right of sale
arising out of any Event of Default shall not be exhausted by any one
or more sales.
Other: Exercise any and all other rights, remedies
and recourses granted under the Loan Documents or now or hereafter
existing in equity or at law, by virtue of statute or otherwise,
including, without limitation, the right, in the Deed of Trust States,
to bring an action in any court of competent jurisdiction to foreclose
this instrument as a realty mortgage or enforce any of the terms
hereof.
Remedies Cumulative, Concurrent and Nonexclusive:
Trustee and Beneficiary shall have all rights, remedies and recourses
granted in the Loan Documents and available at law or equity (including
specifically those granted by the UCC in effect and applicable to the
Mortgaged Property) and, except as limited by applicable Legal
Requirements, the same (a) shall be cumulative and concurrent; (b) may
be pursued separately, successively or concurrently against the Grantor
or against all or any portion of the Mortgaged Property, at the sole
discretion of Trustee or Beneficiary, as the case may be; (c) may be
exercised as often as occasion therefor shall arise, it being agreed by
Grantor that the exercise or failure to exercise any of same shall in
no event be construed as a waiver or release thereof or of any other
right, remedy or recourse; and (d) are intended to be, and shall be
nonexclusive.
(j) Collection of Costs and Expenses: The Trustee and the
Beneficiary shall be entitled to receive all costs and expenses of the
sale or repossession of the Mortgaged Property including the Trustee's
fees and reasonable attorneys' fees or receivers reasonable fee or
commission, if any, title and abstracting charges, reasonable
attorneys' fees and a reasonable auctioneer's fees, and all other costs
and expenses incurred in exercising its remedies hereunder.
_ No Conditions Precedent to Exercise of Remedies: The Grantor shall be
relieved of any obligation it has under the Loan Documents by reason of (i) the
release, regardless of consideration, of any of the Mortgaged Property or any
other collateral held pursuant to the Loan Documents or the addition of any
other property to the Mortgaged Property or any other such collateral; (ii) any
agreement or stipulation between any subsequent owner of all or any portion of
the Mortgaged Property and Beneficiary extending, renewing, rearranging or in
any other way modifying the terms of the Loan Documents without first having
obtained the consent of, given notice to or paid any consideration to the
Grantor, and in such event the Grantor shall continue to be liable to make
payment according to the terms of any such extension or modification agreement
unless expressly released and discharged in writing by Beneficiary; or (iii) any
other acts or occurrence, save and except the full payment and performance of
all of the Obligations, and the termination of the Commitments of the Lenders
under the Credit Agreement and the cancellation and return to the Issuing Bank
of all Letters of Credit issued under the Credit Agreement and the occurrence of
the Facility Termination Date.
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_ Release of and Resort to Collateral: To the fullest extent permitted
by law, Beneficiary may release, regardless of consideration, any part of the
Mortgaged Property without, as to the remainder, in any way impairing,
affecting, subordinating or releasing the lien or security interest created in
or evidenced by the Loan Documents or their stature as a first and prior lien
and security interest in and to the Mortgaged Property. For payment of the
Obligations, to the fullest extent permitted by applicable Legal Requirements,
Beneficiary may resort to any other security therefor held by Trustee in such
order and manner as Beneficiary may elect, and such resort may be taken
concurrently or successively and in one or several consolidated or independent
judicial actions or lawfully taken non-judicial proceedings, or both.
_ Waivers: To the fullest extent permitted by applicable Legal
Requirements, Grantor hereby irrevocably and unconditionally WAIVES and RELEASES
(a) all benefits that might accrue to Grantor by virtue of any present or future
law exempting the Mortgaged Property from attachment, levy or sale on execution
or providing for any appraisement, valuation, homestead exemption, stay of
execution, exemption from civil process, redemption or extension of time for
payment; (b) except as otherwise provided in the Loan Documents, all notices of
any demand, presentment, Event of Default, intent to accelerate or acceleration
or the election by Trustee or Beneficiary, as applicable, to exercise or the
actual exercise of any right, remedy or recourse provided for under the Loan
Documents; (c) any right to a marshalling of assets or a sale in inverse order
of alienation; (d) any restrictions or conditions upon the exercise by the
Trustee or the Beneficiary, as applicable, of the remedies set forth in Section
6.1 and (e) in Texas, the exemption of homestead. The Grantor expressly waives
and relinquishes any right or remedy that it may have or be able to assert by
reason of the provisions of Chapter 34 of the Business and Commerce Code of the
State of Texas pertaining to the rights and remedies of sureties.
_ Discontinuance of Proceedings: To the extent permitted by applicable
Legal Requirements, in case Trustee or Beneficiary, as the case may be, shall
have proceeded to invoke any right, remedy or recourse permitted under the Loan
Documents and shall thereafter elect to discontinue or abandon same for any
reason, Trustee or Beneficiary, as the case may be, shall have the unqualified
right so to do and, in such an event, Grantor, Trustee and Beneficiary shall be
restored to their former positions with respect to the Loan Documents, the
Mortgaged Property and otherwise, and the rights, remedies, recourses and powers
of Trustee and Beneficiary shall continue as if same had never been invoked.
_ Application of Proceeds:
To the extent permitted by applicable Legal
Requirements, all proceeds received from the sale or other dispositions
of the Mortgaged Property, including but not limited to, the Rents and
other income generated by the holding, leasing, operating or other use
of the Mortgaged Property, pursuant to Article 6 of this Deed of Trust
shall be applied by the Trustee and/or Beneficiary (or the receiver, if
one is appointed), as applicable, to the extent that funds are so
available therefrom, in accordance with the following priorities:
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First: to the costs and expenses of the sale or possession
of the Mortgaged Property including the Trustee's or receiver's
reasonable fee or commission, if any, title and abstracting charges,
reasonable attorneys' fees and a reasonable auctioneer's fee if such
expense has been incurred;
Second: to the satisfaction of the Obligations;
Third: to the payment to whomsoever shall be entitled
thereto under applicable Legal Requirements, if the person who made the
sale knows who is entitled thereto. Otherwise, the surplus shall be
paid to the clerk of the superior, district or circuit court (or other
court having jurisdiction) of the county where the sale was had.
If the Trustee and/or Beneficiary shall be
ordered, in connection with any bankruptcy, insolvency or
reorganization of the Grantor to restore or repay to or for the account
of the Grantor or any of its creditors any amount theretofore received
under this Section 6.6, the amount for such restoration or repayment
shall be deemed to be an Obligation so as to place the Trustee and/or
Beneficiary in the position they would have been in had such amount
never been received by any party hereto.
_ Cooperation: If an Event of Default shall occur, Grantor will use its
best efforts to cooperate with Trustee and Beneficiary and promptly do all
things reasonably required of it toward obtaining all necessary authority and
permission from any governmental authority or otherwise to accomplish any
disposition, abandonment or change in use of the Mortgaged Property (or any
portion thereof) as Trustee or Beneficiary, as the case may be, may request in
connection with the exercise of its rights and powers hereunder and under the
other Loan Documents. Without limiting the generality of the foregoing,
following an Event of Default and reasonable advance notice to Grantor, Grantor
agrees to relocate operations located on the Mortgaged Property to accommodate
the disposition, abandonment, change in use or foreclosure by Trustee or
Beneficiary, as the case may be, of any portion thereof, provided that such
relocation does not materially violate any Legal Requirement applicable to
Grantor or the Mortgaged Property.
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ARTICLE ________`_
CONDEMNATION
_ General: Promptly following the date on which an executive officer of
Grantor obtains knowledge of the institution or the threatened institution of
any proceeding for the condemnation of all or any portion of the Mortgaged
Property, Grantor shall notify Trustee and Beneficiary of such fact. Grantor
shall then, unless Beneficiary waives this requirement, file or defend its claim
in respect of such proceeding and prosecute same with due diligence to its final
disposition. Grantor may be the nominal party in such proceeding but Beneficiary
shall be entitled to participate in same and to be represented therein by
counsel of its own choice, and Grantor will deliver or cause to be delivered to
Beneficiary such instruments as may be reasonably requested by it from time to
time to permit such participation. All proceeds received from any such
condemnation proceeding shall be paid to Beneficiary and applied to reduce the
outstanding balance of the Obligations.
_ Rebuilding, Restoration and Repair: In the event (i) only a portion
of the Mortgaged Property is taken, (ii) Grantor elects to rebuild, restore or
repair the remaining portion of the Mortgaged Property, and (iii) the cost of
the rebuilding, restoration or repair reasonably estimated by Beneficiary shall
not exceed $50,000, then Grantor shall deliver to Beneficiary plans and
specifications for such rebuilding, restoration or repair; and Grantor shall
thereafter commence the rebuilding, restoration or repair in accordance with the
plans and specifications required pursuant to the preceding provisions within
one hundred eighty (180) days after the date of the disbursement of the award or
settlement, and complete same to the satisfaction of the Beneficiary within a
reasonable time thereafter. Upon completion of such rebuilding, restoration and
repair in accordance with the preceding provisions, Grantor may apply such
amount or settlement to the costs of such rebuilding, restoration or repair. If
(i) there is a total condemnation of the Mortgaged Property, or (ii) if the cost
of rebuilding, restoration or repair is reasonably estimated to be in excess of
$50,000, or (iii) if Grantor elects not to rebuild, restore or repair as
specified above, or (iv) the requirements set forth above for rebuilding,
restoration or repair after a partial condemnation are not met to Beneficiary's
satisfaction, then Grantor shall pay to Beneficiary such award or settlement to
be applied to reduce the outstanding balance of the Obligations.
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ARTICLE ________`_
SECURITY AGREEMENT AND ASSIGNMENT OF LEASES AND RENTS
_ Assignment: Subject to the terms and conditions hereinafter set
forth, Grantor as debtor does hereby irrevocably transfer, assign and deliver
unto Beneficiary as secured party for its benefit and the ratable benefit of the
Secured Creditors, as security for the payment and performance of the
Obligations, and grant a security interest in, all of the right, title and
interest of Grantor in and to all of the following:
The Encumbered Leases;
The Leases;
The Rents;
The Fixtures; and
The Personalty.
This assignment of rentals and any other assignments required by the
provisions hereof shall terminate and become null and void upon release of this
Deed of Trust.
The Grantor shall execute and deliver to Beneficiary, in form and
substance satisfactory to Beneficiary, such financing statements and such
further assurances as required by applicable law or as Beneficiary may, from
time to time, consider reasonably necessary to create, perfect and preserve
Beneficiary's security interest herein granted, and Grantor will (or Beneficiary
at its option may) cause such statements and assurances to be recorded and filed
at such times and places as may be required or permitted by law to so create,
perfect and preserve such security interest.
Trustee and Beneficiary shall have all the rights, remedies and
recourses with respect to the Personalty, Fixtures, Leases and Rents afforded a
secured party by the aforesaid Uniform Commercial Code in addition to, and not
in limitation of, the other rights, remedies and recourses afforded by the Loan
Documents and at law.
Pursuant to the Texas Business and Commerce Code, this Deed of Trust
shall be effective as a Financing Statement filed as a fixture filing from the
date of its filing for record covering the Fixtures and Personalty. The
addresses of Grantor, as Debtor, and Beneficiary, as Secured Party, are as set
forth herein. The above described goods are or are to become fixtures related to
the Land and Improvements of which the Grantor is record title owner or lessee.
This instrument covers goods that are or are to become fixtures on the
Land described herein. This instrument shall be deemed to be a fixture filing
and for such purpose the following information is set forth:
(1) Name and Address of Debtor: as set forth on page 2
hereof.
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(2) Name and Address of Secured Party: as set forth on
page 2 hereof.
(3) Description of the types (or items) of property
covered by this financing statement: as set forth
in Section 1.1 and this Section 8.1.
(4) Description of real estate to which collateral is
attached or upon which it is located: as set forth
on Exhibit "A".
_ Collection of Rents: Grantor absolutely and irrevocably assigns to
Beneficiary, with or without taking possession of the Land or the Buildings, the
Rents, and hereby authorizes and empowers Beneficiary to collect the Rents as
the same shall become due, and does hereby irrevocably direct each and all of
the lessees, sublessees, licensees, or other occupants of the Mortgaged Property
to pay to Beneficiary, upon demand by Beneficiary, the Rents. The foregoing
assignment shall not impose upon Beneficiary any duty to produce Rents from the
Mortgaged Property, and shall not cause Beneficiary to be a
"mortgagee-in-possession" for any purpose.
_ Beneficiary's Powers of Attorney: Grantor does hereby irrevocably
constitute and appoint Beneficiary, while this Deed of Trust remains in force
and effect, its true and lawful attorney-in-fact, coupled with an interest and
with full power of substitution, delegation and revocation, for Grantor and in
its name, place and stead, to enter and take possession of the Mortgaged
Property after an Event of Default by actual physical possession without the
commencement of any action to foreclose this Deed of Trust or to exercise any
power of sale Beneficiary may have hereunder and to do and perform any or all of
the following actions, as fully as Grantor could do if personally present,
hereby ratifying and confirming all that Beneficiary, as attorney or its
substitute, shall lawfully do or cause to be done by virtue hereof:
to enter into subordination and non-disturbance
agreements with respect to any Leases or with any of the lessees under
any of the Leases;
to demand, collect, ▇▇▇ for, attach, levy,
recover, receive, compromise and adjust, and make, execute and deliver
receipts, releases, discharges or other instruments for all Rents,
issues, and other amounts that may hereafter become due, owing or
payable with respect to the Mortgaged Property or any part thereof from
any present or future lessees, sublessees, licensees or other occupants
thereof;
to institute, prosecute to completion, or
compromise and settle, all summary proceedings, actions for rent or for
removing any and all lessees, sublessees, licensees or other occupants
of the Mortgaged Property or any part or parts thereof;
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to enforce or enjoin or restrain the violation of
any of the terms, provisions and conditions of any of the Leases;
to pay, from and out of any Rents and issues
collected in respect of the Mortgaged Property or any part thereof, or
from or out of any other funds, any taxes, assessments, water rates,
sewer rates, or other government charges levied, assessed, or imposed
against the Mortgaged Property, or any portion thereof, and also any
and all other charges, costs and expenses which it may be reasonably
necessary or advisable for Beneficiary to pay in the management or
operation of the Mortgaged Property, including commissions for renting
the Mortgaged Property or any portion thereof, management and
consulting fees, and legal expenses incurred in enforcing claims,
drafting and negotiating documents or for any other services that may
be required;
to ask, demand, collect, ▇▇▇ for, recover,
compromise, receive and give acquittance and receipts for moneys due
and to become due under or in respect of any of the Personalty;
to receive, indorse, and collect any drafts or
other instruments, documents and chattel paper, in connection with
subsection (f) above;
to file any claims or take any action or institute
any proceedings which the Beneficiary may deem necessary or desirable
for the collection of any of the Personalty or otherwise to enforce the
rights of the Beneficiary with respect to any of the Personalty,
including without limitation the execution, delivery and filing of
financing statements, continuation statements, affidavits or other
security instruments and agreements necessary to perfect, confirm and
continue in effect the lien of this Deed of Trust with respect to the
Leases, the Rents, the Fixtures and the Personalty; and
to generally do, execute, and perform any other
act, deed, matter or thing whatsoever that ought to be done, executed
and performed in and about or with respect to the Mortgaged Property,
the Leases and the Personalty, as fully as Grantor might do; provided,
however, that this Assignment shall not operate to place upon
Beneficiary any responsibility or obligation to take any of the above
actions or any action whatsoever with respect to the operation,
control, care, management or repair of the Mortgaged Property, and that
any action taken or failure or refusal to act by Beneficiary under this
Agreement shall be at Beneficiary's election and without any liability
on its part.
_ Grantor Remains Liable: Anything herein to the contrary
notwithstanding:
Grantor shall remain liable under the Leases to
the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Deed of Trust had
not been executed;
the exercise by the Beneficiary of any of the
rights hereunder shall not release the Grantor from any of its duties
or obligations under any of the Leases; and
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(c) the Beneficiary shall not have any obligation or
liability under any of the Leases to any person or entity under this
Deed of Trust nor shall the Beneficiary be obligated to perform any of
the obligations or duties of the Grantor thereunder or to take any
action to collect or enforce any claims thereunder.
_ Grantor's Representation and Waranties: Grantor represents and
warrants that:
No Rents, nor any part thereof becoming due
subsequent to the date hereof, have been collected with respect to the
Leases (excepting an amount not exceeding one month's installment under
the Leases), nor has payment of any of the same been anticipated,
waived, released, discounted or otherwise discharged or compromised;
This Deed of Trust creates a valid security
interest in the Personalty as security for the payment and performance
of the Obligations. Upon the filing of financing statements (the
"Financing Statement") under the UCC naming the Grantor as debtor and
the Beneficiary as secured party and covering the Personalty, such
security interests shall be perfected under the UCC and such security
interests are not subject to any prior lien, or to any agreement
purporting to grant to any Person, other than the Beneficiary, a
security interest in any of the Personalty, in each case other than
with respect to the Permitted Encumbrances. No further filings,
recordings or other actions are necessary to perfect or maintain the
priority of such security interests other than the filing of UCC
continuation statements on or prior to the date required by applicable
Legal Requirements. The Financing Statements are in appropriate form
and have been duly filed pursuant to the UCC;
The chief place of business and chief executive
office of the Grantor are located at the address first specified above
for the Grantor;
Each of the Leases described in Section 4.10
hereof, as amended to the date of execution and delivery hereof, true
and complete copies of which have been delivered to the Beneficiary,
has been duly authorized, executed and delivered by Grantor (and to
Grantor's knowledge all other parties thereto) and is in full force and
effect and binding upon and enforceable against Grantor and, to
Grantor's knowledge, against the other parties thereto, in accordance
with its terms. No event has occurred and is continuing, or will occur
as a result of the performance of this Deed of Trust, that constitutes
or would constitute any material event of default under any of the
Leases or would constitute such an event of default but for the
requirement that notice be given or time lapse or both.
_ Grantor's Covenants: In addition to Grantor's obligations in Section
4.10, Grantor covenants and agrees with respect to the Leases described in
Section 4.10 hereof that:
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It will perform and observe each of its material
obligations under the terms of the Leases now or hereafter in effect (except
when the amount or validity of such obligations is being contested in good
faith) and use best efforts to cause the other parties thereto to comply with
their obligations thereunder;
It will, upon the reasonable written request by
Beneficiary, while this Assignment remains in force and effect, serve written
notices of this Assignment upon any lessor or lessee, sublessee, licensee, or
other occupant of any portion of the Mortgaged Property or include among the
written provisions of any instrument hereafter creating any such lease,
sublease, license, or right of occupancy specific reference to this Assignment,
and make, execute and deliver all such powers of attorney or instrument of
pledge or assignment, and such other instrument or documents as Beneficiary may
reasonably request at any time for the purpose of securing its rights hereunder;
It will furnish to Beneficiary, promptly following
demand, true copies of all Leases hereafter executed and true copies of each
agreement or letter effecting the renewal, amendment or modification of any
Lease; and in each case after request by the Beneficiary, furnish to the
Beneficiary promptly following receipt thereof copies of all notices, requests
and other documents received by the Grantor under or pursuant to the Leases
during the term of each of the Leases and from time to time (A) furnish to
Beneficiary such information and reports regarding the Leases as the Beneficiary
may reasonably request, and (B) promptly following request of the Beneficiary
make such demands and requests for information or action upon such person, firm,
corporation, or other entity as the Grantor is entitled to make under the
Leases;
It will cause the security interest in the
Personalty to remain a continuously perfected, first priority security interest
free and clear of any liens (other than the Beneficiary's lien hereunder and the
Permitted Encumbrances), and from time to time, at its own expense, the Grantor
will promptly execute and deliver all further instruments and documents and take
all further action, that may be necessary or desirable, or that the Beneficiary
may reasonably request, in order to perfect and protect any security interest
granted or purported to be granted hereby or to enable the Beneficiary to
otherwise enforce its rights and remedies hereunder with respect to the
Personalty. Without limiting the generality of the foregoing or of Section 4.3
hereof, the Grantor will: (i) at the request of the Beneficiary, ▇▇▇▇
conspicuously any item of chattel paper relating to or evidencing the Personalty
with a legend, in form and substance satisfactory to the Beneficiary, indicating
that the Personalty is subject to the security interest granted hereby, (ii)
execute and file such financing or continuation statements, or amendments
thereto, and such other collateral assignments, security agreements, instruments
or notices, as may be necessary or desirable, or as the Beneficiary may
reasonably request, in order to perfect and preserve the security interests
granted or purported to be granted hereby, and (iii) defend the title to the
Personalty and the Beneficiary's lien thereon and security interest therein
against the claim of any person, firm, corporation, or other entity
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claiming against or through Grantor and will maintain and preserve such lien and
security interest so long as this Deed of Trust shall remain in effect;
It authorizes the Beneficiary to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Personalty without the signature of the Grantor where permitted
by law; and
It will furnish to the Beneficiary from time to
time statements and schedules further identifying and describing the Personalty
and such other reports in connection with the Personalty as the Beneficiary may
reasonably request, all in reasonable detail.
_ Effect of Release of Mortgaged Property: The Grantor hereby consents
to, and hereby agrees that the rights of the Beneficiary and the security
interests hereunder, and the obligations of the Grantor hereunder, to the
fullest extent permitted by applicable Legal Requirements, shall not be affected
by any and all releases of any of the Mortgaged Property from the liens or
security interests created by this Deed of Trust or otherwise, whether for
purposes of sales or other dispositions of assets or for some other purpose,
except to the extent expressly provided herein, by any agreement extending the
time or otherwise altering the terms of payment of all or any part of the
indebtedness secured hereby, or subordinating, modifying or waiving any
obligation, or subordinating, modifying or otherwise dealing with the lien or
charge hereof, each such agreement to be in writing to be binding and effective,
by exercising or refraining from exercising or waiving any right Beneficiary may
have hereunder, or by accepting additional security of any kind or additional
parties to the Obligations secured hereby or instruments creating or evidencing
such.
_ Hold Harmless: WITHOUT LIMITATION OF THE INDEMNITY SET FORTH IN
SECTION 10.15, GRANTOR HEREBY AGREES TO INDEMNIFY AND HOLD THE TRUSTEE, THE
BENEFICIARY, AND THE SECURED CREDITORS HARMLESS (A) AGAINST AND FROM ANY AND ALL
LIABILITY, LOSS, DAMAGE AND EXPENSE, INCLUDING REASONABLE ATTORNEYS' FEES, WHICH
IT MAY OR SHALL INCUR UNDER OR IN CONNECTION WITH THE EXERCISE BY BENEFICIARY OF
ITS RIGHTS HEREUNDER IN RESPECT OF ANY OF THE LEASES, OR BY REASON OF ANY ACTION
TAKEN OR EXPENSES PAID OR INCURRED BY BENEFICIARY UNDER AND IN ACCORDANCE WITH
THE TERMS OF THIS DEED OF TRUST, AND (B) AGAINST AND FROM ANY AND ALL CLAIMS AND
DEMANDS WHATSOEVER WHICH MAY BE ASSERTED AGAINST GRANTOR BY REASON OF ANY
ALLEGED OBLIGATIONS OR UNDERTAKING ON ITS PART TO PERFORM OR DISCHARGE ANY OF
THE TERMS, COVENANTS AND CONDITIONS CONTAINED IN ANY OF THE LEASES. SHOULD
BENEFICIARY PAY OR INCUR ANY SUCH LIABILITY, LOSS, DAMAGE OR EXPENSE, THE AMOUNT
THEREOF, TOGETHER WITH INTEREST THEREON FROM THE DATE OF SUCH PAYMENT AT THE
DEFAULT RATE, SHALL BE PAYABLE BY GRANTOR TO BENEFICIARY IMMEDIATELY UPON DEMAND
THEREFOR; AND UNTIL SO PAID BY GRANTOR, ALL SUMS SO EXPENDED BY BENEFICIARY, AND
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INTEREST THEREON, SHALL BE ADDED TO THE OBLIGATIONS AND SECURED BY THE LIEN AND
LEGAL OPERATION AND EFFECT OF THIS DEED OF TRUST. AT ITS OPTION, BENEFICIARY MAY
REIMBURSE ITSELF THEREFOR OUT OF ANY RENTS WHICH IT HAS COLLECTED OR MAY
COLLECT. THE FOREGOING INDEMNITY SHALL INCLUDE WITHOUT LIMITATION OF THE
FOREGOING INDEMNITY, THE INDEMNITY OF EACH OF THE PARTIES INDEMNIFIED HEREIN
WITH RESPECT TO CLAIMS, DEMANDS, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL
DAMAGES) LIABILITIES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) AND MATTERS WHICH IN
WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE (WHETHER SOLE,
CONTRIBUTORY, COMPARATIVE, OR OTHERWISE) OF SUCH AND/OR ANY OTHER INDEMNIFIED
PARTY OR FOR WHICH SUCH INDEMNIFIED PARTY MAY HAVE STRICT LIABILITY.
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ARTICLE ________`_
CONCERNING THE TRUSTEE
_ No Required Action: Trustee shall not be required to take any action
toward the execution and enforcement of the trust hereby created or to
institute, appear in or defend any action, suit or other proceeding in
connection therewith where in his opinion such action will be likely to involve
him in expense or liability, unless requested to do so by a written instrument
signed by Beneficiary and, if Trustee so requests, unless Trustee is tendered
security and indemnity satisfactory to it against any and all costs, expense and
liabilities arising therefrom. Trustee shall not be responsible for the
execution, acknowledgment or validity of the Loan Documents or for the proper
authorization thereof, or for the sufficiency of the lien and security interest
purported to be created hereby, and makes no representation in respect thereof
or in respect of the rights, remedies and recourses of Beneficiary.
_ Certain Rights: With the approval of Beneficiary, Trustee shall have
the right to take any and all of the following actions: (a) to select, employ
and consult with counsel (who may be, but need not be, counsel for Beneficiary)
upon any matters arising hereunder, including the preparation, execution and
interpretation of the Loan Documents, and shall be fully protected in relying as
to legal matters on the advice of counsel; (b) to execute any of the trusts and
powers hereof and to perform any duty hereunder either directly or through its
agents or attorneys; (c) to select and employ, in and about the execution of its
duties hereunder, suitable accountants, engineers and other experts, agents and
attorneys-in-fact, either corporate or individual, not regularly in the employ
of Trustee, and Trustee shall not be answerable for any act, default or
misconduct of any such accountant, engineer or other expert, agent or
attorney-in-fact, if selected with reasonable care, or be otherwise responsible
or accountable under any circumstances whatsoever, except for Trustee's gross
negligence or bad faith; and (d) to take any and all other lawful action as
Beneficiary may instruct Trustee to take to protect or enforce Beneficiary's
rights hereunder. Trustee shall not be personally liable, except for its gross
negligence or misconduct, in case of entry by it, or anyone entering by virtue
of the owners herein granted to it, upon the Mortgaged Property for debts
contracted or liability or damages incurred in the management or operation of
the Mortgaged Property. Trustee shall have the right to rely on any instrument,
document or signature authorizing or supporting any action taken or proposed to
be taken by it hereunder believed by it in good faith to be genuine. Trustee
shall be entitled to reimbursement for reasonable expenses incurred by it in the
performance of its duties hereunder and to reasonable compensation for such of
its services hereunder as shall be rendered. Grantor will, from time to time,
pay the reasonable compensation due to Trustee hereunder and reimburse Trustee
for, and save it harmless against, any and all liability and expenses which may
be incurred by it in the performance of its duties.
_ Retention of Moneys: All moneys received by Trustee shall, until used
or applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated in any manner from any other moneys
(except to the extent required by law) and Trustee shall be under no liability
for interest on any moneys received by it hereunder.
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_ Successor Trustees: Trustee may resign by the giving of sixty (60)
days written notice of such resignation in recordable form to Beneficiary. If
Trustee shall resign or become disqualified from acting in the execution of this
trust, or shall fail or refuse to execute the same when requested by Beneficiary
so to do, or if, for any reason and without cause, Beneficiary shall prefer to
appoint a substitute trustee or trustees to act instead of the aforenamed
Trustee, or any successor or substitute trustee, Beneficiary shall have full
power to appoint a substitute trustee or trustees and, if preferred, several
substitute trustees in succession who shall succeed to all the estates,
properties, rights, powers and duties of the aforenamed Trustee. Such
appointment may be executed by any authorized agent or officer of Beneficiary,
and if such Beneficiary be a corporation and such appointment be executed in its
behalf by any officer of such corporation, such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the Board of Directors or any superior
officer of the corporation. Such appointment shall be duly recorded in the
appropriate real estate records at any time before or, if permitted by
applicable law, upon sale of Mortgaged Property by the successor appointed
thereby. Grantor hereby ratifies and confirms any and all acts which the
aforementioned Trustee, or his successor or successors in this trust, lawfully
does by virtue hereof. Grantor shall reimburse Beneficiary and/or Trustee for
any Expenses incurred pursuant to the provisions of this Section 9.4.
_ Perfection of Appointment: Should any deed, conveyance or instrument
of any nature be required from Grantor by any successor Trustee to more fully
and certainly vest in and confirm to such new Trustee such estates, rights,
powers and duties, then, upon request by such Trustee, any and all such deeds,
conveyances and instruments shall be made, executed, acknowledged and delivered
and shall be caused to be recorded and/or filed by Grantor and Grantor shall pay
for any Expenses incurred by Trustee pursuant to this Section 9.5.
_ Succession Instruments: Any new Trustee appointed pursuant to any of
the provisions hereof shall, without any further act, deed or conveyance, become
vested with all the estates, properties, rights, powers and trusts of its
predecessor in the rights hereunder with like effect as if originally named as
Trustee herein; but nevertheless, upon the written request of Beneficiary or of
the successor Trustee, the Trustee ceasing to act shall execute and deliver an
instrument in recordable form transferring to such successor Trustee, upon the
trusts herein expressed, all the estates, properties, rights, powers and trusts
of the Trustee so ceasing to act, and shall duly assign, transfer and deliver
any of the property and moneys held by such Trustee to the successor Trustee so
appointed in its place.
_ No Representation by Trustee: By accepting or approving anything
required to be observed, performed or fulfilled or to be given to Trustee or
Beneficiary pursuant to the Loan Documents, including but not limited to, any
officer's certificate, balance sheet, statement of profit and loss or other
financial statement, survey, appraisal or insurance policy, neither Trustee nor
Beneficiary shall be deemed to have warranted, consented to, or affirmed the
sufficiency, legality, effectiveness or legal effect of the same, or of any
term, provision or
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condition thereof, and such acceptance or approval thereof shall not be or
constitute any warranty, consent or affirmation with respect thereto by Trustee
or Beneficiary.
_ Individual Beneficiary:
Individual Beneficiary has been designated as
co-Beneficiary hereunder so that if the State is a state in which,
under any present or future law, NNA may be deemed to be incompetent or
unqualified to enforce its rights for itself and as agent for the
Secured Creditors because it is deemed to be acting as trustee for the
Secured Creditors under State law, then all the acts required to be
performed in such jurisdiction, in the enforcement of Beneficiary's
rights hereunder, shall and will be performed by Individual
Beneficiary, acting alone. Therefore, notwithstanding any other term or
provision hereof or in any Loan Document to the contrary, NNA alone
shall have and exercise the rights and powers granted herein and in
each of the Loan Documents and shall be charged with the performance of
the duties herein and therein declared on the part of Beneficiary to be
had and exercised or to be performed; provided, however, that if NNA
deems it necessary or desirable for Individual Beneficiary to act in a
State, Individual Beneficiary shall have and exercise the rights and
powers granted herein and therein and shall be charged with the
performance of the duties herein and therein declared on the part of
Beneficiary to be had and exercised or to be performed, but only in
such particular jurisdiction. The foregoing shall not relieve NNA from
any liability or obligation of Beneficiary to any party under the Loan
Documents.
Individual Beneficiary may execute and deliver, on
behalf of NNA, any writing, document or instrument which NNA directs
Individual Beneficiary to execute and deliver, including, without
limitation, any writing, document or instrument of a purely ministerial
nature.
No action taken under this Section shall release
Beneficiary from its obligations hereunder or under the Loan Documents.
The authority granted Individual Beneficiary
hereby shall not give Individual Beneficiary any rights under any of
the Loan Documents, except as expressly set forth in this Section 9.8.
_ Individual Trustees: Individual Trustees have been designated
hereunder so that (i) if the State is Colorado, and Trustee is deemed to be
incompetent or unqualified to enforce its rights for itself and as trustee for
the Secured Creditors, then all the acts required to be performed in such State,
in the enforcement of Trustee's rights hereunder, shall and will be performed by
Colorado Public Trustee, acting alone; and (ii) if the State is Texas, and
Trustee is deemed to be incompetent or unqualified to enforce its rights for
itself and as trustee for the Secured Creditors, then all the acts required to
be performed in such State, in the enforcement of Trustee's rights hereunder,
shall and will be performed by the Texas Individual Trustee, acting
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along. The Colorado Public Trustee's authority in the State of Colorado is to be
governed by the statutes in that state.
_ Mortgage States: Notwithstanding anything to the contrary in this
Deed of Trust, the provisions of this Article IX regarding the Trustee shall not
apply to any portion of the Mortgaged Property located within a Mortgage State.
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ARTICLE ________`_
MISCELLANEOUS
_ Performance at Grantor's Expense: The cost and expense of performing
or complying with any and all of the Obligations shall be borne solely by the
Grantor, and no portion of such cost and expense shall be, in any way or to any
extent, credited against any installment on or portion of the Secured
Indebtedness which may be payable by the Grantor pursuant to the Loan Documents.
_ Survival of Obligations: Each and all of the Obligations shall
survive the execution and delivery of the Loan Documents and the consummation of
the loans called for therein and shall continue in full force and effect with
respect to Grantor until the Obligations shall have been paid, performed and
satisfied in full, and all of the Commitments have been terminated and all of
the Letters of Credit shall have been canceled and returned to the Issuing Bank
and the Facility Termination Date shall have occurred.
_ Further Assurances: Grantor, upon the request of Trustee or
Beneficiary, will execute, acknowledge, and record and/or file such further
instruments and do such further acts as may be reasonably necessary, desirable
or proper to carry out more effectively the purpose of the Loan Documents and to
subject to the liens and security interests thereof any property intended by the
terms thereof to be covered thereby, including specifically but without
limitation, any renewals, additions, substitutions, replacements, betterments or
appurtenances to the then Mortgaged Property.
_ Recording and Filing: Grantor will cause this Deed of Trust and all
amendments and supplements thereto and supplements therefor to be recorded,
filed, re-recorded and refiled in such manner and in such places as required by
applicable law or as Trustee or Beneficiary shall reasonably request, and will
pay all such recording, filing, re-recording and refiling taxes, fees and other
charges.
_ Notice: Any notice shall be conclusively deemed to have been received
by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of receipt at such address, telefacsimile
number or telex number as may from time to time be specified by such party in
written notice to the other parties hereto or otherwise received), in the case
of notice by telegram or telefacsimile or telex, respectively (where the receipt
of such message is verified by return), or (iii) on the fifth Business Day after
the day on which mailed, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address, telex number or telefacsimile number, as appropriate,
set forth below or such other address or number as such party shall specify by
notice hereunder:
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if to the Grantor:
Windmere-Durable Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Beneficiary:
NationsBank, National Association
Independence Center, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
NationsBank, National Association
NationsBank Tower
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
First American Title Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Colorado Public Trustee:
Public Trustee for the State of Colorado
450 So. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
If to the Texas Individual Trustee:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
_ No Waiver; Remedies: The Beneficiary's failure, at any time or times
hereafter, to require strict performance by the Grantor of any provision of this
Deed of Trust shall not waive, affect or diminish any right of the Beneficiary
or Trustee thereafter to demand strict compliance and performance therewith, and
the Beneficiary's or Trustee's single or partial exercise of any right, remedy,
power or privilege hereunder shall not preclude any other or further exercise
thereof or the exercise of any other right, remedy, power, or privilege. The
rights, remedies, powers or privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers or privileges provided by applicable
Legal Requirements. Any suspension or waiver by the Beneficiary or Trustee of a
default by the Grantor under this Deed of Trust or under any of the other Loan
Documents shall not suspend, waive or affect any other default thereunder,
whether the same is prior or subsequent thereto and whether of the same or of a
different kind of character. None of the undertakings, agreements, warranties,
covenants and representations of the Grantor contained in this Deed of Trust and
no default by the Grantor under this Deed of Trust shall be deemed to have been
suspended or waived unless such suspension or waiver is in writing signed by an
officer of the Beneficiary, and directed to the Grantor specifying such
suspension or waiver.
_ Beneficiary's and Secured Creditors' Right to Perform the
Obligations:
If Grantor shall fail, refuse or neglect to make
any payment or perform any act required of it by the Deed of Trust
(including the Grantor's obligation under Section 4.3 hereof to defend
the first lien status of this Deed of Trust), then at any time
thereafter, upon reasonable notice to Grantor and without waiving or
releasing any other right, remedy or recourse Beneficiary may have
because of same, Beneficiary may (but shall not be obligated to) make
such payment or perform such act for the account of and at the expense
of Grantor, and shall have the right to enter upon or in the Land and
Buildings for such purpose and to take all such action thereon and with
respect to the Mortgaged Property as it may deem reasonably necessary
or appropriate. In its exercise of its rights under this Section 10.7,
if Beneficiary shall elect to pay any Imposition or other sums due with
reference to the Mortgaged Property, Beneficiary may do so in reliance
on any ▇▇▇▇, statement or assessment procured from the appropriate
governmental authority or other issuer thereof without inquiring into
the accuracy or validity thereof subject to any other applicable terms
and provisions set forth herein. Similarly, in making any payments to
protect the security intended to be created by the Loan Documents,
Beneficiary shall not be bound to inquire into the validity of any
apparent or threatened adverse title, lien, encumbrance, claim or
charge before making an advance for the purpose of preventing or
removing the same subject to any other applicable terms and provisions
set forth herein. GRANTOR SHALL INDEMNIFY BENEFICIARY FOR ALL LOSSES,
EXPENSES, DAMAGE, CLAIMS AND CAUSES OF ACTION,
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INCLUDING REASONABLE ATTORNEY'S FEES, INCURRED OR ACCRUING BY REASON OF
ANY ACTS PERFORMED BY BENEFICIARY PURSUANT TO THE PROVISIONS OF THIS
SECTION 10.7. ALL SUMS PAID BY BENEFICIARY PURSUANT TO THIS SECTION
10.7 AND ALL OTHER SUMS EXPENDED BY BENEFICIARY TO WHICH IT SHALL BE
ENTITLED TO BE INDEMNIFIED, TOGETHER WITH INTEREST THEREON AT THE
DEFAULT RATE FROM THE DATE OF SUCH PAYMENT OR EXPENDITURE, SHALL
CONSTITUTE ADDITIONS TO THE OBLIGATIONS, AND SHALL BE SECURED BY THE
LOAN DOCUMENTS AND GRANTOR COVENANTS AND AGREES TO PAY THEM TO THE
ORDER OF BENEFICIARY UPON DEMAND. THE FOREGOING INDEMNITY SHALL INCLUDE
WITHOUT LIMITATION OF THE FOREGOING INDEMNITY, THE INDEMNITY OF EACH OF
THE PARTIES INDEMNIFIED HEREIN WITH RESPECT TO CLAIMS, DEMANDS, LOSSES,
DAMAGES (INCLUDING CONSEQUENTIAL DAMAGES) LIABILITIES, CAUSES OF
ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES (INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS) AND MATTERS WHICH IN WHOLE OR IN PART
ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE (WHETHER SOLE,
CONTRIBUTORY, COMPARATIVE, OR OTHERWISE) OF SUCH AND/OR ANY OTHER
INDEMNIFIED PARTY OR FOR WHICH SUCH INDEMNIFIED PARTY MAY HAVE STRICT
LIABILITY.
Any reference in this Deed of Trust to amounts
advanced by or owed to Beneficiary shall be deemed to refer equally to
amounts advanced by or owed to the Trustee or the Secured Creditors,
and wherever Beneficiary is required or permitted to advance funds,
such funds may be advanced by the Trustee or the Secured Creditors with
the same effect as if advanced by Beneficiary.
_ Covenants Running with the Land: All Obligations are intended by the
parties to be, and shall be construed as, covenants running with the Mortgaged
Property until such Mortgaged Property has been released from the lien of this
Deed of Trust.
_ Successors and Assigns: All of the terms of this Deed of Trust shall
apply to, be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns.
_ Severability: This Deed of Trust is intended to be performed in
accordance with, and only to the extent permitted by, applicable Legal
Requirements. If any provision of this Deed of Trust or the application thereof
to any person or circumstance shall, for any reasons and to any extent, be
invalid or unenforceable, then neither the remainder of this Deed of Trust nor
the application of such provision to other persons or circumstances nor the
other instruments referred to above shall be affected thereby, but rather shall
be enforced to the greatest extent permitted by applicable law.
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_ Entire Agreement and Modification:
The Loan Documents contain the entire agreement
between the parties relating to the subject matter hereof and thereof
and all prior agreements relative thereto which are not contained
herein or therein are terminated. This Deed of Trust may not be
amended, revised, waived, discharged, released or terminated orally but
only by a written instrument or instruments executed by the party
against which enforcement of the amendment, revision, waiver,
discharge, release or termination is asserted. Any alleged amendment,
revision, waiver, discharge, release or termination which is not so
documented shall not be effective as to any party. In the event of a
conflict between the covenants contained herein and the covenants
contained in the Credit Agreement, the more specific covenants
contained herein shall govern with respect to the Mortgaged Property.
If any court disregards the express, specific
intent and agreement of the parties that Florida law shall apply to the
Obligations, as described in Section 10.12 below, and proceeds to apply
Texas law, the following provision shall apply: A LOAN AGREEMENT IN
WHICH THE AMOUNT INVOLVED EXCEEDS $50,000.00 IN VALUE IS NOT
ENFORCEABLE UNLESS THE AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY
TO BE BOUND OR BY THAT PARTY'S AUTHORIZED REPRESENTATIVE. THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE DETERMINED SOLELY FROM
WRITTEN AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR WRITTEN
AGREEMENTS, DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS
BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS.
THIS AGREEMENT (AS AMENDED IN WRITING FROM TIME TO TIME IN ACCORDANCE
WITH THE TERMS HEREOF) AND THE OTHER WRITTEN LOAN DOCUMENTS EXECUTED BY
THE GRANTOR, AND BENEFICIARY (OR GRANTOR FOR THE BENEFIT OF
BENEFICIARY) REPRESENT THE FINAL AGREEMENT BETWEEN THE GRANTOR AND
BENEFICIARY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. THIS PARAGRAPH IS
INCLUDED HEREIN PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS AND
COMMERCE CODE, AS AMENDED FROM TIME TO TIME.
_ APPLICABLE LAW: THE PARTIES TO THIS DEED OF TRUST AGREE THAT THEIR
RIGHTS AND OBLIGATIONS UNDER THIS DEED OF TRUST SHALL BE GOVERNED BY AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT
GIVING EFFECT TO THE CONFLICTS-OF LAW RULES AND PRINCIPLES THEREOF. THE PARTIES
FURTHER AGREE AND STIPULATE THAT THIS DEED OF TRUST AND THE LOAN DOCUMENTS WERE
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NEGOTIATED PRIMARILY IN NEW YORK. NOTWITHSTANDING THE FOREGOING, THE PARTIES
AGREE THAT:
THE PROCEDURES GOVERNING THE ENFORCEMENT BY
BENEFICIARY OF THE PROVISIONAL REMEDIES AGAINST GRANTOR, INCLUDING BY
WAY OF ILLUSTRATION BUT NOT LIMITATION, ACTIONS FOR REPLEVIN, FOR CLAIM
AND DELIVERY OF PROPERTY, FOR INJUNCTIVE RELIEF OR FOR THE APPOINTMENT
OF A RECEIVER AND THE REQUIREMENTS NECESSARY TO CREATE OR GRANT,
PERFECT OR FORECLOSE ON, OR DETERMINE THE PRIORITY OF, THE LIEN AND
SECURITY INTEREST OF THIS DEED OF TRUST, SHALL BE GOVERNED BY THE LAWS
OF THE STATE IN WHICH THE MORTGAGED PROPERTY IS LOCATED;
OTHER THAN AS SET FORTH IN SUBSECTION (A) ABOVE,
TRUSTEE AND BENEFICIARY SHALL COMPLY WITH THE APPLICABLE LAW OF THE
STATE, TO THE EXTENT REQUIRED IN CONNECTION WITH THE POWER OF SALE OR
THE FORECLOSURE OF THE SECURITY INTERESTS AND LIENS CREATED HEREBY
PROVIDED, HOWEVER, THAT THIS SUBSECTION SHALL IN NO EVENT BE CONSTRUED
TO PROVIDE THAT THE SUBSTANTIVE LAW OF SUCH STATE SHALL APPLY TO THE
OBLIGATIONS SECURED BY THIS DEED OF TRUST WHICH ARE AND SHALL CONTINUE
TO BE GOVERNED BY THE SUBSTANTIVE LAW OF NEW YORK. THE PARTIES FURTHER
AGREE THAT BENEFICIARY MAY ENFORCE ITS RIGHTS UNDER THIS DEED OF TRUST
AND THE LOAN DOCUMENTS, INCLUDING BUT NOT LIMITED TO, ITS RIGHT TO ▇▇▇
THE GRANTOR, TO COLLECT ANY OUTSTANDING INDEBTEDNESS OR TO OBTAIN A
JUDGMENT FOR ANY DEFICIENCY FOLLOWING FORECLOSURE, IN ACCORDANCE WITH
THE LAWS OF NEW YORK. NOTHING IN THE FOREGOING SHALL BE CONSTRUED TO
PROVIDE THAT THE SUBSTANTIVE LAW OF THE STATE, INCLUDING WITHOUT
LIMITATION THE PROVISIONS OF SECTIONS 580A, 580B, 580D AND 726 OF THE
CALIFORNIA CODE OF CIVIL PROCEDURE (REGARDLESS OF WHETHER SAID SECTIONS
OF THE CALIFORNIA CODE ARE DEEMED TO BE PROCEDURAL OR SUBSTANTIVE) WITH
RESPECT TO THE APPLICABLE PORTION OF THE MORTGAGED PROPERTY LOCATED IN
CALIFORNIA, SHALL APPLY TO THE OBLIGATIONS SECURED BY OR EVIDENCED BY
THIS DEED OF TRUST AND THE LOAN DOCUMENTS;
GRANTOR HEREBY ACKNOWLEDGES, WARRANTS AND
REPRESENTS THAT IT IS SOPHISTICATED, KNOWLEDGEABLE AND EXPERIENCED IN
COMMERCIAL TRANSACTIONS SIMILAR TO THE TRANSACTION EMBODIED IN THIS
DEED OF TRUST AND THE LOAN DOCUMENTS; GRANTOR HAS BEEN FULLY,
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COMPLETELY AND ADEQUATELY REPRESENTED AND ADVISED BY COMPETENT COUNSEL
AND OTHER CONSULTANTS RETAINED FOR SUCH PURPOSES IN CONNECTION WITH ALL
ASPECTS (INCLUDING BUSINESS AND LEGAL) OF THE TRANSACTIONS UNDER THIS
DEED OF TRUST AND THE LOAN DOCUMENTS; ALL PARTIES TO SUCH TRANSACTION
HAVE EQUAL BARGAINING STRENGTH; AND, BASED ON THE FOREGOING, THE
PARTIES HAVE SELECTED THE LAW OF THE STATE OF NEW YORK TO GOVERN THIS
DEED OF TRUST AND THE LOAN DOCUMENTS AS HEREIN SPECIFIED; AND
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE
TERMS AND CONDITIONS IMPLIED IN MORTGAGES BY VIRTUE OF ANY PRESENT OR
FUTURE STATUTE IN FORCE IN NEW YORK SHALL FOR THE PURPOSES OF THIS DEED
OF TRUST BE NEGATED OR VARIED ONLY SO FAR AS THEY ARE INCONSISTENT WITH
THE TERMS AND CONDITIONS HEREOF AND ARE OTHERWISE HEREBY VARIED SO AS
TO BECOME CONSISTENT WITH THIS DEED OF TRUST.
_ No Partnership; Control in Grantor: Except to the extent occurring as
a matter of law (a) nothing contained in this Deed of Trust is intended to, or
shall be construed as, creating to any extent and in any manner whatsoever, any
partnership, joint venture, or association between Grantor, Trustee and
Beneficiary, or in any way make Beneficiary or Trustee co-principals with
Grantor with reference to all or any portion of the Mortgaged Property, and any
inferences to the contrary are hereby expressly negated; (b) notwithstanding
anything contained herein which may be to the contrary, this Deed of Trust, the
Loan Documents, any agreement, deed of trust or other document referred to
herein by reference, whether specifically or generally, and the transactions
contemplated hereby do not and will not constitute or create indirect, actual or
practical ownership of the Mortgaged Property or Grantor by Beneficiary, or
control, affirmative or negative, direct or indirect, by Beneficiary over the
programming, management, or any other aspect of the day-to-day operation of the
Mortgaged Property or Grantor, which control remains in Grantor, its
shareholders and board of directors; and (c) Beneficiary's activities in
connection with this Deed of Trust and the Loan Documents shall not be "outside
the scope of the activities of a lender of money" within the meaning of any
applicable statutes, as amended or recodified from time to time, and Beneficiary
does not intend to ever assume any responsibility to any person for the quality,
suitability, safety or condition of the Mortgaged Property. Beneficiary shall
not be directly or indirectly liable or responsible for any loss, claim, cause
of action, liability, indebtedness, damage or injury of any kind or character to
any person or property arising from any construction, or occupancy or use of,
any of the Mortgaged Property, whether caused by or arising from: (i) any defect
in any building, structure, grading, fill, landscaping or other
improvements-thereon or in any on-site or off-site improvement or other facility
therein or thereon; (ii) any act or omission of Grantor or any of its agents,
employees, independent contractors, licensees or invitees; (iii) any accident in
or on any of the Mortgaged Property or any fire, flood or other casualty or
hazard thereon; (iv) the failure of Grantor, any of its licensees, employees,
invitees, agents, independent contractors or other representatives to maintain
the Mortgaged Property in a safe condition; and (v) any nuisance made or
suffered on any part of the Mortgaged Property.
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_ Headings: The Article, Section and Subsection titles hereof are
inserted for convenience of reference only and shall in no way alter, modify or
define, or be used in construing, the text of such Articles, Sections or
Subsections.
_ Hold Harmless: NEITHER TRUSTEE, BENEFICIARY NOR SECURED CREDITORS
SHALL BE OBLIGATED TO PERFORM OR DISCHARGE, NOR DO ANY OF THEM HEREBY UNDERTAKE
TO PERFORM OR DISCHARGE, ANY OBLIGATION, DUTY OR LIABILITY WITH RESPECT TO THE
MORTGAGED PROPERTY UNDER OR BY REASON OF THIS DEED OF TRUST OR ANY OF THE LOAN
DOCUMENTS, AND GRANTOR SHALL AND DOES HEREBY AGREE TO INDEMNIFY TRUSTEE,
BENEFICIARY AND EACH SECURED CREDITOR FOR AND TO HOLD TRUSTEE, BENEFICIARY AND
EACH SECURED CREDITOR HARMLESS FROM ANY AND ALL LIABILITY, LOSS OR DAMAGE WHICH
THEY MAY OR MIGHT INCUR WITH RESPECT TO THE MORTGAGED PROPERTY OR UNDER OR BY
REASON OF THIS DEED OF TRUST OR ANY OF THE LOAN DOCUMENTS AND FROM ANY AND ALL
CLAIMS AND DEMANDS WHATSOEVER WHICH MAY BE ASSERTED AGAINST THEM BY REASON OF
ANY ALLEGED OBLIGATIONS OR UNDERTAKINGS ON THEIR PART TO PERFORM OR DISCHARGE
ANY OF THE TERMS, COVENANTS, OR AGREEMENTS RELATING TO THE MORTGAGED PROPERTY.
SHOULD TRUSTEE, BENEFICIARY OR ANY SECURED CREDITOR INCUR ANY SUCH LIABILITY,
LOSS OR DAMAGE, THE AMOUNT THEREOF, INCLUDING ALL ATTORNEYS' FEES AND COSTS AND
EXPENSES ASSOCIATED WITH ACTIONS TAKEN BY TRUSTEE BENEFICIARY OR ANY SUCH
SECURED CREDITOR IN DEFENSE THEREOF, OR OTHERWISE IN PROTECTING THEIR INTERESTS
HEREUNDER, SHALL BE SECURED HEREBY, AND GRANTOR COVENANTS AND AGREES TO
REIMBURSE TRUSTEE, BENEFICIARY OR ANY SUCH SECURED CREDITOR THEREFOR IMMEDIATELY
UPON DEMAND. THE FOREGOING INDEMNITY SHALL INCLUDE WITHOUT LIMITATION OF THE
FOREGOING INDEMNITY, THE INDEMNITY OF EACH OF THE PARTIES INDEMNIFIED HEREIN
WITH RESPECT TO CLAIMS, DEMANDS, LOSSES, DAMAGES (INCLUDING CONSEQUENTIAL
DAMAGES) LIABILITIES, CAUSES OF ACTION, JUDGMENTS, PENALTIES, COSTS AND EXPENSES
(INCLUDING REASONABLE ATTORNEYS' FEES AND COURT COSTS) AND MATTERS WHICH IN
WHOLE OR IN PART ARE CAUSED BY OR ARISE OUT OF THE NEGLIGENCE (WHETHER SOLE,
CONTRIBUTORY, COMPARATIVE, OR OTHERWISE) OF SUCH AND/OR ANY OTHER INDEMNIFIED
PARTY OR FOR WHICH SUCH INDEMNIFIED PARTY MAY HAVE STRICT LIABILITY.
_ Pronouns and Plurals: All pronouns used herein shall be deemed to
refer to the masculine, feminine, neuter, singular or plural as the context may
require, and the singular form of nouns, pronouns and verbs shall include the
plural, and vice versa, whichever the context may require.
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_ WAIVER OF TRIAL BY JURY: TO THE EXTENT PERMITTED UNDER THE LAWS OF
THE STATE IN WHICH THE APPLICABLE PORTION OF THE MORTGAGED PROPERTY IS SITUATED,
GRANTOR AND THE BENEFICIARY EACH HEREBY WAIVES AND SHALL WAIVE TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS DEED
OF TRUST.
_ Assignment: Beneficiary may assign or transfer all or any portion of
its rights under this Deed of Trust.
_ No Merger: So long as this Deed of Trust is an encumbrance upon the
Mortgaged Property, there shall be no merger of the interest of any lessor or
any lessee under any Lease or sublease.
_ Enforceability of Lien: In the event that any part of the Obligations
cannot be lawfully secured by this Deed of Trust, or the lien or security
interest hereof cannot be lawfully enforced to pay any part of the Obligations,
then and in either such event, at the option of Beneficiary, all payments on the
Obligations shall be deemed to have been first applied against the unsecured
part of the Obligations.
_ Knowledge: Whenever referenced in this Deed of Trust, the "knowledge"
or "best knowledge" of Grantor shall include the knowledge of its parent
corporations, if any, and its Subsidiaries, if any.
_ Best Efforts: Whenever referenced in this Deed of Trust, the term
"best efforts" shall not be interpreted as requiring the expenditure of
unreasonable sums of money, in view of the objectives sought.
_ Usury Savings Clause:
Nothing contained herein or in the Loan Documents
shall be deemed to require the payment of interest or other charges by
the Grantor in excess of the amount Beneficiary and the Secured
Creditors may lawfully charge under the applicable usury laws (the
"Highest Lawful Rate"). In the event Beneficiary shall collect monies
which are deemed to constitute interest which would increase the
effective interest rate to a rate in excess of that permitted to be
charged by applicable law, all such sums deemed to constitute interest
in excess of the legal rate shall, upon such determination, at the
option of Beneficiary, be returned to the Grantor or credited against
the principal balance of any Obligation secured hereby then
outstanding.
If any court disregards the express, specific
intent and agreement of the parties that New York law shall apply to
the Obligations, as described in Section 10.12 above, and proceeds to
apply Texas law, then in determining whether or not the interest paid
or payable, under any specific contingency, exceeds the Highest Lawful
Rate, the Grantor and the Beneficiary shall (a) characterize any
nonprincipal payment as an
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expense, fee or premium rather than as interest; (b) exclude voluntary
prepayments and the effect thereof; and (c) spread the total amount of
interest throughout the entire contemplated term of the Notes; provided
that, if the Notes are paid and performed in full prior to the end of
the full contemplated term of the Notes, and if the interest received
by the Beneficiary and the Secured Creditors for the actual period of
existence of the Notes exceeds the Highest Lawful Rate, the Beneficiary
and the Secured Creditors shall refund to the Grantor the amount of
such excess, and, in such event, neither the Beneficiary nor Secured
Creditors shall be subject to any penalties provided by any laws for
contracting for, charging, taking, reserving, or receiving interest in
excess of the Highest Lawful Rate. To the extent that the Beneficiary
and the Secured Creditors are relying at Article 5069-1.04, as amended,
of the Revised Civil Statutes of Texas to determine the Highest Lawful
Rate, the Beneficiary and Secured Creditors will use the indicated
"weekly ceiling" from time to time in effect as provided in Chapter 303
(including without limitation, Sections 303.301, 303.304, 303.305 and
303.306) of the Texas Finance Code, as amended. To the extent United
States federal law permits the Beneficiary and Secured Creditors to
contract for, charge or receive a greater amount of interest, the
Beneficiary and Secured Creditors will rely on the United States
federal law instead of Article 5069-1.04, as amended, for the purpose
of determining the Highest Lawful Rate. Additionally, to the extent
permitted by applicable law now or hereafter in effect, the Beneficiary
may, at its option and from time to time, implement any other method of
computing the Highest Lawful Rate under Article 5069-1.04, as amended,
or under other applicable law, by giving the Grantor the notice
required by applicable law now or hereafter in effect. In no event
shall the provisions of Ch. 15 of Article 5069 of the Revised Civil
Statutes of Texas (which regulates certain revolving credit loan
accounts and revolving tri-party accounts) apply to the Loan. The terms
and provisions of this paragraph 10.23 shall control and supersede
every other provision of all agreements between the Grantor, the
Beneficiary and Secured Creditors in the event of a conflict in such
provisions.
_ Payment of Prior Encumbrances: If any or all of the proceeds of the
Obligations (including, without limitation the Secured Indebtedness) have been
used to extinguish, extend or renew any indebtedness heretofore existing against
the Mortgaged Property or to satisfy any indebtedness or obligation secured by a
lien or encumbrance of any kind (including liens securing the payment of any
Impositions), such proceeds have been advanced by Beneficiary at Grantor's
request, and, to the extent of such funds so used, the Obligations (including
without limitation the Secured Indebtedness) in this Deed of Trust shall be
subrogated to and extend to all of the rights, claims, liens, titles and
interests heretofore existing against the Mortgaged Property to secure the
indebtedness or obligation so extinguished, paid, extended or renewed, and the
former rights, claims, liens, title and interests, if any, shall not be waived
but rather shall be continued in full force and effect and in favor of the
Beneficiary and shall be merged with the lien and security for the repayment of
and satisfaction of the Obligations (including without limitation the repayment
of all Secured Indebtedness).
TO THE EXTENT THE APPLICABLE PORTION OF THE MORTGAGED PROPERTY IS
SITUATED IN THE STATE OF CALIFORNIA GRANTOR HEREBY
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REQUESTS THAT A COPY OF ANY NOTICE OF DEFAULT AND NOTICE OF SALE AS MAY BE
REQUIRED BY LAW BE MAILED TO GRANTOR AT THE ABOVE ADDRESS BY CERTIFIED MAIL,
RETURN RECEIPT REQUESTED.
Grantor hereby acknowledges that it has received a copy of this Deed of
Trust free of charge.
_ Waiver: To the extent the applicable portion of the Mortgaged
Property is situated in the State of Colorado, Grantor waives and renounces all
homestead and similar exemption rights with respect to the Mortgaged Property
provided for by the Constitution and laws of the United States and/or the State
of Colorado as against the collection of the Obligations, or any part thereof.
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WITNESS THE EXECUTION OF THIS CREDIT LINE DEED OF TRUST, MORTGAGE,
OPEN-END MORTGAGE, DEED OF TRUST, DEED TO SECURE DEBT, LEASEHOLD MORTGAGE,
OPEN-END LEASEHOLD MORTGAGE, LEASEHOLD DEED OF TRUST, LEASEHOLD DEED TO SECURE
DEBT, SECURITY AGREEMENT, FIXTURE FINANCING STATEMENT, ASSIGNMENT OF LEASES AND
RENTS AND FINANCING STATEMENT as of the date first above written.
WINDMERE-DURABLE HOLDINGS, INC.
a Florida corporation
By: SEAL)
--------------------------
Name:
------------------------
Title:
-----------------------
Attest: SEAL)
----------------------
Name:
------------------------
Title:
-----------------------
(CORPORATE SEAL)
SIGNED, SEALED AND DELIVERED
IN THE PRESENCE OF:
Print Name:___________________
Print Name:___________________
▇-▇▇
▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ )
) ss.
County of Mecklenburg )
On this ____ day of ________, in the year 1998, before me personally
came _________________ and ____________________ in the County of Mecklenburg,
North Carolina, personally known to me or proved to me on the basis of
satisfactory evidence to be the persons who executed the within instrument as
the ___________ _________ and ___________ of WINDMERE-DURABLE HOLDINGS, INC.,
the corporation described in and which executed the within instrument, and
acknowledged to me that said corporation executed the within instrument pursuant
to a resolution of its board of directors.
In Witness Whereof, I have hereunto set my hand and affixed my official
seal the day and the year in this certificate first above written.
---------------------------------
Name:
My Commission Expires:
(AFFIX NOTARIAL SEAL)
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EXHIBIT A
Land or Encumbered Leases
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355
EXHIBIT B
Fee Owner of Land Underlying Encumbered Lease
Not Applicable
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356
EXHIBIT P
FORM OF BORROWER'S COUNSEL OPINION
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Schedule 1.1
Material Leased Facilities
S-1
358
Schedule 1.2
Material Contracts
S-2
359
Schedule 1.3
Existing Letters of Credit
S-3
360
Schedule 1.4
Approved Stock Options
S-4
361
Schedule 5.6
Collateral Information
S-1
362
Schedule 8.4
Subsidiaries and Investments in Other Persons
S-2
363
Schedule 8.6(c)
Consolidated Balance Sheets
S-3
364
Schedule 8.6(d)
Indebtedness and Contingent Obligations
S-4
365
Schedule 8.7
Liens
S-5
366
Schedule 8.10
Litigation
S-6
367
Schedule 8.13
Intellectual Property Matters
S-7