EXHIBIT 10.1
AG-CHEM EQUIPMENT CO., INC.
---------------------------------------
LONG TERM SECOND
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
US$45,000,000
---------------------------------------
DATED AS OF JUNE 10, 1997
---------------------------------------
NBD BANK, FOR ITSELF AND AS AGENT
FIRST CHICAGO NBD BANK, CANADA
THE FIRST NATIONAL BANK OF CHICAGO
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
COOPERATIEVE CENTRALE RAIFFEISEN - BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH
TABLE OF CONTENTS
LONG TERM SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
Page
Introduction........................................................... 1
ARTICLE I - DEFINITIONS................................................ 1
1.1 Certain Definitions ........................................ 1
1.2 Certain Rules of Construction .............................. 11
1.3 Acknowledgment and Restatement of Credit ................... 12
ARTICLE II - CREDIT FACILITY AND ADVANCES.............................. 13
2.1 Commitments of the Lenders ................................. 13
2.2 Requesting Advances ........................................ 13
2.3 Funding Advances ........................................... 15
2.4 Termination or Reduction of Commitment ..................... 15
2.5 Interest and Principal Repayment ........................... 16
2.6 Payments by Company ........................................ 17
2.7 Remittance by Agent ........................................ 17
2.8 Set-Off; etc ............................................... 18
2.9 Servicing Fees ............................................. 19
2.10 Additional Costs; Illegality and Impossibility ............. 19
ARTICLE III - CONDITIONS PRECEDENT TO ADVANCES......................... 21
3.1 Conditions for Initial Advances ............................ 21
3.2 Further Conditions for Advances ............................ 23
ARTICLE IV - REPRESENTATIONS AND WARRANTIES............................ 23
4.1 Corporate Existence and Power .............................. 23
4.2 Corporate Authority ........................................ 24
4.3 Binding Effect ............................................. 24
4.4 Subsidiaries ............................................... 24
4.5 Litigation ................................................. 24
4.6 Financial Condition ........................................ 24
4.7 Use of Advances ............................................ 25
4.8 Consents, Etc .............................................. 25
4.9 Taxes ...................................................... 25
4.10 Title to Properties ........................................ 25
4.11 Compliance with Governmental Regulations ................... 25
4.12 ERISA ...................................................... 25
4.13 Environmental and Safety Matters ........................... 26
4.14 Investment Company Act; Unregistered Securities ............ 27
4.15 Public Utility Holding Company ............................. 27
4.16 Disclosure ................................................. 27
ARTICLE V - COVENANTS.................................................. 27
5.1 Affirmative Covenants ...................................... 27
5.2 Negative Covenants ......................................... 31
ARTICLE VI - DEFAULT................................................... 34
6.1 Events of Default .......................................... 34
6.2 Remedies ................................................... 36
ARTICLE VII - THE AGENT................................................ 38
7.1 Appointment, Powers and Immunities ......................... 38
7.2 Reliance by Agent .......................................... 38
7.3 Rights as a Lender ......................................... 38
7.4 Indemnification ............................................ 39
7.5 Non-Reliance on Agent and Other Lenders .................... 39
7.6 Duties of Agent ............................................ 39
7.7 Successor Agent ............................................ 40
7.8 Nature of Advances ......................................... 40
7.9 Default Interest ........................................... 41
7.10 Limited Purpose of Certain Provisions ...................... 41
ARTICLE VIII - MISCELLANEOUS........................................... 41
8.1 Waivers, Amendments, etc ................................... 41
8.2 Notices .................................................... 42
8.3 No Waiver by Conduct; Remedies Cumulative .................. 43
8.4 Reliance on and Survival of Various Provisions ............. 43
8.5 Expenses; Indemnification .................................. 43
8.6 Successors and Assigns ..................................... 44
8.7 Disclosure of Information .................................. 44
8.8 Counterparts ............................................... 45
8.9 Governing Law .............................................. 45
8.10 Table of Contents and Headings ............................. 45
8.11 Construction of Certain Provisions ......................... 45
8.12 Integration and Severability ............................... 46
8.13 Independence of Covenants .................................. 46
8.14 Interest Rate Limitation ................................... 46
8.15 Limitation of Liability .................................... 46
8.16 Interpretation ............................................. 46
8.17 Jurisdiction and Venue ..................................... 47
8.18 Waiver of Jury Trial ....................................... 47
LONG TERM SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This Long Term Second Amended and Restated Revolving Credit Agreement,
dated as of June 10, 1997, is among Ag-Chem Equipment Co., Inc., a Minnesota
corporation (the "Company"), and NBD Bank ("NBD") for itself and as agent (in
such capacity "Agent"), First Chicago NBD Bank, Canada ("Canadian Lender") and
the other banks set forth on the signature pages hereto or who otherwise become
parties to this Agreement..
INTRODUCTION
A. The Company has obtained various revolving loans from NBD, ▇▇▇▇▇▇
Trust and Savings Bank ("▇▇▇▇▇▇") and National City Bank of Minneapolis ("NCB")
pursuant to a Long Term Amended and Restated Revolving Credit Agreement, as
amended, dated January 12, 1996, as amended by agreements dated March 29, 1996,
June 28, 1996, January 1, 1997 and February 25, 1997 among the Company, NBD,
▇▇▇▇▇▇ and NCB (the "Existing Loan Agreement").
B. The existing obligations of the Company are evidenced by the
Revolving Note in the principal amount of $15,000,000, dated January 12, 1996,
from the Company to NBD, the Revolving Note in the principal amount of
$1,666,667, dated January 12, 1996, from the Company to NCB, and the revolving
Note in the principal amount of $8,333,333, dated January 12, 1996 from the
Company to ▇▇▇▇▇▇ (collectively, the "Existing Notes").
C. The Company has requested certain changes to its revolving credit
facility, including increasing the amount and funding advances in multiple
currencies.
D. The Agent has brought in another lender to replace NCB and to
provide multiple currency advances.
E. The Company, the Agent and the Lenders desire to amend and restate
the Existing Loan Agreement in its entirety on the terms and conditions set
forth in this Agreement.
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Adjusted Dutch LIBOR Rate" shall mean, for any Loan Period and the
applicable Dutch Guilder Advance, the per annum rate of interest equal to the
sum of (a) the then applicable Margin, plus (b) the per annum rate (rounded up,
if necessary, to the nearest one-sixteenth of one percent (1/16%)) determined by
dividing (i) the Dutch LIBOR Rate for such Dutch Guilder Advance and related
Loan Period, by (ii) an amount equal to one minus the stated maximum rate
(expressed as a decimal) of all reserve requirements (including any basic,
marginal, emergency,
supplemental, special or other reserves) that is specified from time to time
during a Loan Period by the Board of Governors of the Federal Reserve System (or
any successor agency) for determining the maximum reserve requirement with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of such Board) maintained by a member bank of such
System, without benefit of credit or prorations, exemptions or offsets which
might otherwise be available to any of the Lenders from time to time under
Regulation D.
"Adjusted LIBOR Rate" shall mean, for any Loan Period and the
applicable LIBOR Rate Advance, the per annum rate of interest equal to the sum
of (a) the then applicable Margin, plus (b) the per annum rate (rounded up, if
necessary, to the nearest one-sixteenth of one percent (1/16%)) determined by
dividing (i) the LIBOR Rate for such LIBOR Rate Advance and related Loan Period,
by (ii) an amount equal to one minus the stated maximum rate (expressed as a
decimal) of all reserve requirements (including any basic, marginal, emergency,
supplemental, special or other reserves) that is specified from time to time
during a Loan Period by the Board of Governors of the Federal Reserve System (or
any successor agency) for determining the maximum reserve requirement with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of such Board) maintained by a member bank of such
System, without benefit of credit or prorations, exemptions or offsets which
might otherwise be available to any of the Lenders from time to time under
Regulation D.
"Advance(s)" means individually or collectively, as appropriate, the
Dutch Guilder Advances, Floating Rate Advances, LIBOR Rate Advances, Canadian
Prime Rate Advances and Cost of Funds Advances.
"Advancing Agent" means, as appropriate, the Agent with respect to the
Floating Rate Advances and LIBOR Rate Advances, the Canadian Lender with respect
to Canadian Prime Rate Advances and Cost of Funds Advances, and the London Agent
with respect to the Dutch Guilder Advances.
"Affiliate", when used with respect to any person, means any other
person which, directly or indirectly, controls or is controlled by or is under
common control with such person and includes (a) any person which beneficially
owns or holds 5% or more of any class of voting securities of such person or 5%
or more of the equity interest in such person, (b) any person of which such
person beneficially owns or holds 5% or more of any class of voting securities
or in which such person beneficially owns or holds 5% or more of the equity
interests and (c) any director, officer or employee of such person. For purposes
of this definition "control" (including the correlative meanings of the terms
"controlled by" and "under common control with"), with respect to any person,
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such person, whether through the
ownership of voting securities or by contract or otherwise.
"Agent" shall mean NBD Bank in its capacity as agent hereunder or any
successor agent appointed pursuant to the terms hereof.
"Agreement" means this Long Term Amended and Restated Revolving Credit
Agreement, either as originally executed or as it may from time to time be
supplemented, modified, amended, renewed or extended.
"Applicable Rate" means, for any Loan Period and the relevant Advance,
the rate of interest applicable thereto.
"Business Day" means a day other than (a) with respect to all Advances,
a Saturday, Sunday or other day on which the banks in Chicago, Detroit or New
York generally are not open to the public for carrying on substantially all of
their banking functions, (b) with respect to Canadian Advances only, a Saturday,
Sunday or other day on which the banks in Toronto are generally not open to the
public for carrying on substantially all of their banking functions, and (c)
with respect to LIBOR Rate Advances and Dutch Guilder Advances only, , a
Saturday, Sunday or other day on which the banks in London or in the Netherlands
generally are not open to the public for carrying on substantially all of their
banking functions, or a day on which the London interbank market is not
transacting business generally.
"Canadian Advance(s)" means an advance under Section 2.1(b) which is
made in CDN Dollars and may be either a Canadian Prime Rate Advance or a Cost of
Funds Advance.
"Canadian Lender" shall mean First Chicago NBD Bank, Canada or any
successor appointed pursuant to the terms hereof.
"Canadian Prime Rate" means the per annum rate equal to the prime rate
of interest announced by the Canadian Lender for advances in Canadian Dollars,
as in effect from time to time, which rate may not be the lowest rate charged by
such institution to any of its customers, which Canadian Prime Rate shall change
simultaneously with any change in such announced prime rate.
"Canadian Prime Rate Advance" means an advance under Section 2.1 which
is made in Canadian Dollars and bears interest at the Canadian Prime Rate.
"Capital Expenditures" means, for any period, the additions to
property, plant and equipment and other capital expenditures of the Company and
its Subsidiaries for such period, as the same are or should be set forth on the
consolidated financial statements of the Company and its Subsidiaries in
accordance with GAAP.
"Capital Lease" of any person means any lease which, in accordance with
GAAP, is or should be capitalized on the books of such person.
"Cash Equivalents" means, as to any person, (a) securities issued or
directly and fully guaranteed or insured by the United States or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States is pledged in support thereof) having maturities of not more than 12
months from the date of acquisition, (b) time deposits and certificates of
deposit
of any commercial bank with a long-term unsecured debt rating of at least A or
its equivalent from Standard & Poor's Rating Group or at least A-2 or its
equivalent from ▇▇▇▇▇'▇ Investors Service, Inc. with maturities of not more than
six months from the date of acquisition by such person, (c) repurchase
obligations with a term of not more than seven days for underlying securities of
the types described in clause (a) above entered into with any bank meeting the
qualifications specified in clause (b) above, (d) commercial paper issued by any
person incorporated in the United States, which commercial paper is rated at
least A-1 or the equivalent thereof by Standard & Poor's Ratings Group or at
least P-1 or the equivalent thereof by ▇▇▇▇▇'▇ Investors Service, Inc. or at
least F-1 or the equivalent thereof by Fitch Investor Services, Inc. and in each
case maturing not more than 270 days after the date of issuance by such person,
and (e) investments in money market funds substantially all the assets of which
are comprised of securities of the types described in clauses (a) through (d)
above.
"CDN Dollars" and "CDN$" means the lawful money of Canada.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and the regulations thereunder.
"Commitment" means the commitment of a Lender to make Advances pursuant
to Section 2.1(a) or (b), as applicable, in the maximum principal set forth
opposite the Lender's name on the signature pages hereof as its Tranche A
Commitment or Tranche B Commitment, as such amount may be reduced from time to
time pursuant to Section 2.5.
"Cost of Funds Rate " means with respect to a Cost of Funds Advance of
a specified Loan Period, the rate of interest per annum equal to the sum of (a)
the then applicable Margin, plus (b) the annual rate of interest quoted on the
Business Day prior to the first day of such Loan Period by the Canadian Lender
as being its rate of interest for cost of funds loans in CDN Dollars for a face
amount similar to the amount of the applicable Cost of Funds Advance and for a
term equivalent to the applicable Loan Period.
"Cost of Funds Advance" means an advance under Section 2.1 which is
made in CDN Dollars and bears interest at the Cost of Funds Rate.
"Contingent Liabilities" of any person means, as of any date, all
obligations of such person or of others for which such person is contingently
liable, as obligor, guarantor, surety or in any other capacity, or in respect of
which obligations such person assures a creditor against loss or agrees to take
any action to prevent any such loss (other than endorsements of negotiable
instruments for collection in the ordinary course of business), including all
reimbursement obligations of such person in respect of any letters of credit,
surety bonds or similar obligations and all obligations of such person to
advance funds to, or to purchase assets, property or services from, any other
person in order to maintain the financial condition of such other person.
"Default" means any of the events or conditions described in Section
6.1 which would, unless cured, become an Event of Default with notice or lapse
of time or both.
"Default Rate" means a rate per annum that is equal to the sum of the
Applicable Rate plus three percent (3%) per annum.
"Dollar Amount" of any currency at any date means the equivalent of
such amount in Dollars, calculated on the basis of the London Agent's spot
buying rate (based on the London interbank market rate then prevailing) for such
other currency against Dollars as of approximately 10:00 a.m. (London time) on
the date on which such amount is to be determined.
"Dollars", "US$" and "$" means the lawful money of the United States of
America.
"Dutch Guilders" means the lawful money of the Kingdom of the
Netherlands.
"Dutch Guilder Advance(s)" means an advance under Section 2.1(a) which
is made in Dutch Guilders and bears interest at the Adjusted Dutch LIBOR Rate.
"Dutch LIBOR Rate" means, for any Dutch Guilder Advance and the related
Loan Period, the per annum rate of interest at which deposits in Dutch Guilders
for such Loan Period and in an aggregate amount comparable to the principal
amount of such Dutch Guilder Advance are offered to the London Agent by other
prime banks in the London interbank market, at approximately 11:00 a.m., London
time, on the day that is two Business Days preceding the applicable Reset Date,
as determined by the London Agent.
"EBITDA" means, for any period, Net Income plus the sum of all amounts
recorded and deducted in computing Net Income for such period in respect of
Interest Expense, taxes, depreciation charges and expenses and amortization
charges and expenses (whether paid or accrued, or a cash or non-cash expense),
as determined in accordance with GAAP.
"Effective Date" means the date on which the Lenders purchase a portion
of the Existing Indebtedness pursuant to Section 1.3(b) below.
"Environmental Laws" means any and all Governmental Regulations
concerning the protection of, or regulating the discharge of substances into,
the environment, including the Governmental Regulations specified in the
definition of Hazardous Materials.
"Equivalent Amount" means, on any date, the amount of CDN Dollars or
Dutch Guilders, as applicable, converted from Dollars (i) at the Canadian
Lender's spot buying rate for Dollars against CDN Dollars as of approximately
10:00 a.m. (Toronto time), on the date on which such amount is to be determined,
or (ii) at the London Agent's spot buying rate (based on the London interbank
market rate then prevailing) for Dollars against Dutch Guilders as of
approximately 10:00 a.m. (London time), on the date on which such amount is to
be determined.
"ERISA" means the Employee Retirement Income Securities Act of 1974, as
amended from time to time, and the regulations thereunder.
"ERISA Affiliate" means, with respect to any person, any trade or
business (whether or not incorporated) which, together with such person or any
Subsidiary of such person, would be treated as a single employer under Section
414 of the Code.
"Event of Default" means any of the events or conditions described in
Section 6.1.
"Existing Guaranties" means the Guaranties (Long Term) dated January
12, 1996, from Lor*Al Products, Inc., Ag-Chem Equipment Co International Corp,
Ag-Chem Equipment Canada Ltd., and Soil Teq, Inc. and the Guaranty (Long Term)
dated January 1, 1997, from Ag-Chem Sales Co., Inc., all for the benefit of NCB,
▇▇▇▇▇▇ and NBD.
"Existing Loan Documents" means the Existing Loan Agreement (as defined
in the Introduction), Existing Notes (as defined in the Introduction), and the
Existing Guaranties.
"Existing Indebtedness" means all obligations of the Company to NBD,
▇▇▇▇▇▇ and NCB under the Existing Loan Documents, including, but not limited to,
payments of principal, interest and fees.
"Facility Margin" shall mean the following per annum percent applicable
from time to time based on the ratio of Funded Debt to EBITDA determined on a
rolling four quarter basis at the end of the applicable fiscal quarter:
Ratio of Funded Debt to EBITDA Facility Margin
------------------------------ ---------------
Less than 1.75 to 1.0 0.125%
Equal to or greater than 1.75 to 1.0 0.150%
but less than 2.50 to 1.0
Equal to or greater than 2.50 to 1.0 0.200%
but less than or equal to 3.25 to 1.0
The foregoing ratios shall be determined as of the end of each fiscal quarter
based upon the financial statements to be delivered by the Company pursuant to
Section 5.1(d)(ii). The determination of the Facility Margin as of the end of
each such fiscal quarter shall be set forth on a certificate prepared by the
Company and delivered with the financial statements to be delivered with respect
to such quarter pursuant to Section 5.1(d)(ii). Any increase or decrease in the
Facility Margin shall become effective beginning after the fifth Business Day
following the date on which the Company delivers to the Agent its financial
statements in accordance with Section 5.1(d)(ii), together with a certificate
showing that a change in the Facility Margin is required; provided, however, if
the financial statements required by Section 5.1(d)(ii) for the applicable
quarters, together with the foregoing certificate, are not delivered within the
required time period, then, until such delivery the "Facility Margin" shall be
deemed to be 0.200%.
Notwithstanding the foregoing, until the financial statements for the quarter
ended June 30, 1997 are delivered pursuant to Section 5.1(d)(ii), the Facility
Margin shall be deemed to be 0.200%.
"Federal Funds Rate" means, for any day, the weighted average of the
rates on overnight Federal Funds transactions with members of the Federal
Reserve System only, arranged by Federal Funds brokers, as published for such
day (or if such day is not a Business Day, for the immediately preceding
Business Day) by the Federal Reserve Bank of New York or, if such rate is not so
published for any Business Day, the average of the quotations for such day on
such transactions received by Agent from three Federal Funds brokers of
recognized standing selected by Agent.
"FDIC" means the Federal Deposit Insurance Corporation and any entity
succeeding to its functions.
"Fixed Rate Advance" shall mean a LIBOR Rate Advance, a Cost of Funds
Advance or a Dutch Guilder Advance.
"Floating Rate" shall mean the per annum rate equal to the higher of
(i) Prime Rate in effect from time to time, and (ii) 1/2% per annum plus the
Federal Funds Rate from time to time determined by the Agent. Such Floating Rate
shall change simultaneously with any change in the Prime Rate or Federal Funds
Rate.
"Floating Rate Advance" means an advance under Section 2.1 which is
made in Dollars and bears interest at the Floating Rate.
"Funded Debt" means, at any date, all Indebtedness of the Company and
its consolidated Subsidiaries which bears interest (including Capital Leases),
other than Subordinated Debt.
"Funding Date" means any Business Day designated by the Company as a
day on which (a) a new Advance is to be made or a Letter of Credit is to be
issued, (b) a Floating Rate Advance is to be converted to a Fixed Rate Advance,
or (c) a Loan Period or Letter of Credit is to be renewed or extended, each in
accordance with the terms and conditions of this Agreement.
"GAAP" means generally accepted accounting principles in the United
States applied on a consistent basis, and with respect the covenants in Section
5.2(a), (b) and (c), consistent with those principles in effect at the date of
the financial statements listed in Schedule 4.6.
"Governmental Authority" means any federal, state, local, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, and any and all Governmental Regulations
(including decrees, rules and orders) of any governmental bodies and offices
having power to regulate or supervise the business activities of any of the
Company, a Loan Party, the Agent or any Lender.
"Governmental Regulations" means any and all laws, statutes,
ordinances, rules, regulations, treaties, judgments, writs, injunctions,
decrees, orders, awards and standards, or any similar requirement, of the
government of the United States or of any foreign government or any state,
province, municipality or other political subdivision thereof or therein or any
court, agency, instrumentality, regulatory authority or commission of any of the
foregoing.
"Guaranties" means the Guaranties given by the Guarantors to the Agent
and the Lenders guarantying the Obligations, together with any amendments or
restatements thereof.
"Guarantor(s)" means Ag-Chem Sales Co., Inc., a Minnesota corporation,
Lor*Al Products, Inc., a Minnesota corporation, Ag-Chem Equipment Co
International Corp, a Virgin Islands corporation, Ag-Chem Equipment Canada Ltd.,
a Minnesota corporation, Soil Teq, Inc., a Minnesota corporation, Kurstjens
Terra-Gator, B.V., a Netherlands private limited liability company and any other
person or entity that may guarantee the Obligations from time to time.
"Hazardous Materials" means asbestos-containing materials, mono- or
polychlorinated biphenyl urea formaldehyde products, radon, radioactive
materials and any "hazardous substance," "hazardous waste," "pollutant," "toxic
pollutant," "oil or contaminant" as used in, or defined pursuant to, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 USC ss.9601 et seq., and 40 CFR ss.302.1 et seq.; the Federal Clean
Air Act, as amended, 42 USC ss.7401 et seq., and regulations thereunder; the
Resource Conservation and Recovery Act, 42 USC ss.6901 et seq., as amended, and
regulations thereunder; the Federal Water Pollution Control Act, 33 USC ss.1251
et seq., as amended, and regulations thereunder; 40 CFR ss.116.1 et seq.; and
any other substance, waste, pollutant, contaminant or material, including
petroleum products and derivatives, the use, transport, disposal, storage,
treatment, recycling, handling, discharge, release, threatened release or
emission of which is regulated or governed by any Environmental Laws.
"Indebtedness" of any person means (a) all obligations of such person
for borrowed money, (b) all obligations of such person as lessee under any
Capital Lease, (c) all obligations which are secured by any Lien existing on any
asset or property of such person whether or not the obligation secured thereby
shall have been assumed by such person, (d) the unpaid purchase price for goods,
property or services acquired by such person, except for accounts payable for
goods, property or services arising in the ordinary course of business that are
not more than 30 days past due, (e) all obligations of such person to purchase
goods, property or services where payment therefor is required regardless of
whether delivery of such goods or property or the performance of such services
is ever made or tendered (generally referred to as "take or pay contracts"), (f)
all liabilities of such person in respect of unfunded benefit liabilities
(determined in accordance with Section 4001(a)(18) of ERISA) under any Plan of
such person or of any ERISA Affiliate and any unfunded current liabilities with
respect to any employee benefit pension plans maintained by such person outside
the United States, (g) all obligations of such person in respect of any interest
rate or currency swap, rate cap or other similar transaction (valued in any
amount equal to the highest termination payment, if any, that would be payable
by such person
upon termination for any reason on the date of determination), and (h) all
Contingent Liabilities of such person.
"Interest Coverage Ratio" means the ratio of (a) the net income of the
Company and its consolidated Subsidiaries, before interest expense and taxes,
determined in accordance with GAAP, to (b) Interest Expense for the Company and
its Subsidiaries, on a consolidated basis, to be calculated as of the end of
each fiscal quarter of the Company for the four consecutive fiscal quarters then
ending.
"Interest Expense" means, for a person for the applicable fiscal
period, such person's interest expense (including capitalized interest accrued
during such period) for such period computed in accordance with GAAP including,
without limitation, the portion of any obligation under a Capital Lease
allocable to interest expense in accordance with GAAP.
"Interest Payment Date" means each January 1, April 1, July 1 and
October 1.
"Investment" of any person in another person means any advance, loan,
extension of credit or capital contribution to, or any investment in the capital
stock or other equity interest, or Indebtedness of, such other person or any
Contingent Liability incurred for the benefit of such other person.
"Lender(s)" means the US Lenders and the Canadian Lender.
"Letter(s) of Credit" means, individually or collectively, as the case
may be, each letter of credit issued by the Agent pursuant to Section 2.4 hereof
for the account of a Loan Party.
"Letter of Credit Obligations" means, at any date of determination, the
aggregate amount available to be drawn on the outstanding Letters of Credit on
such date (assuming compliance by the beneficiary with the terms of each such
Letter of Credit) and any unreimbursed amounts with respect to Letters of Credit
which have been drawn on and have not been turned into an Advance.
"L/C Documents" has the meaning given in Section 2.4(b)(i).
"LIBOR Rate" means, for any LIBOR Rate Advance and the related Loan
Period, the per annum rate of interest equal to the offered rate for deposits in
Dollars for the applicable Loan Period and comparable amount, commencing on the
first day of such Loan Period (a "Reset Date") which appears on the Telerate
Screen page 3750 (British Bankers' Association LIBOR setting) at approximately
11:00 a.m., London time, on the date that is two Business Days prior to such
Reset Date, except as provided below. If two or more such offered rates appear
on the Telerate Screen on the applicable date, the LIBOR Rate will be the
arithmetic mean of such offered rates. If the source referred to in the first
sentence of this definition is not reasonably available to the Agent, the LIBOR
Rate for a particular LIBOR Rate Advance and the related Loan Period shall be
the per annum rate of interest at which deposits in Dollars for such Loan
Period and in an aggregate amount comparable to the principal amount of such
LIBOR Rate Advance are offered to the First National Bank of Chicago by other
prime banks in the London interbank market, at approximately 11:00 a.m., London
time, on the day that is two Business Days preceding the applicable Reset Date,
as determined by the Agent.
"LIBOR Rate Advance" means an advance under Section 2.1 which is made
in Dollars and bears interest at the Adjusted LIBOR Rate.
"Lien" means any pledge, assignment, hypothecation, mortgage, security
interest, deposit arrangement, option, conditional sale or title retaining
contract, sale and leaseback transaction, finance statement filing (other than
with regard to operating leases), lessor's or lessee's interest under any lease
(other than the lessee's interest under any operating lease), subordination of
any claim or right, or any other type of lien, charge, encumbrance or other
claim or right.
"Loan Documents" means this Agreement, the Notes, the Guaranties, the
Short Term Credit Agreement, any L\C Documents and all other agreements,
documents or instruments now or hereafter executed by or on behalf of the
Company, any of its Subsidiaries or any Guarantor and delivered to the Agent or
the Lenders in connection with this Agreement or the Short Term Credit
Agreement.
"Loan Party" means the Company and each Guarantor.
"Loan Period" means, (i) with respect to each Floating Rate Advance and
Canadian Prime Rate Advance, the period commencing on the Funding Date for such
Advance and ending on the earlier to occur of (A) the date of repayment by the
Company, and (B) the Termination Date, (ii) with respect to each Cost of Funds
Advance, the period commencing on the Funding Date for such Advance and ending
30, 60, 90 or 180 days thereafter, as specified by the Company in the related
notice under Section 2.2, and (iii) with respect to each LIBOR Rate Advance and
Dutch Guilder Advance, the period commencing on the Funding Date for such
Advance and ending one month, two months, three months or six months thereafter,
as specified by the Company in the related notice under Section 2.2; provided,
however, that with respect to LIBOR Rate Advances and Dutch Guilder Advances:
(a) any Loan Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Loan Period
shall end on the next preceding Business Day;
(b) any Loan 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 Loan Period) shall, subject to clause (c)
below, end on the last Business Day of a calendar month; and
(c) any Loan Period which would otherwise end after the Termination
Date will end on the Termination Date.
"London Agent" shall mean The First National Bank of Chicago or any
successor agent appointed pursuant to the terms hereof.
"Margin" means the following per annum percent applicable from time to
time, based on the ratio of Funded Debt to EBITDA determined on a rolling four
quarter basis at the end of the applicable fiscal quarter:
Ratio of Funded Debt to EBITDA Margin
------------------------------ ------
Less than 1.75 to 1.0 0.375%
Equal to or greater than 1.75 to 1.0 0.600%
but less than 2.50 to 1.0
Equal to or greater than 2.50 to 1.0 0.800%
but less than or equal to 3.25 to 1.0
The foregoing ratios shall be determined as of the end of each fiscal quarter
based upon the financial statements to be delivered by the Company pursuant to
Section 5.1(d)(ii). The determination of the Margin as of the end of each such
fiscal quarter shall be set forth on a certificate prepared by the Company and
delivered with the financial statements to be delivered with respect to such
quarter pursuant to Section 5.1(d)(ii). Any increase or decrease in the Margin
shall become effective for any newly funded or thereafter extended Fixed Rate
Advances beginning after the fifth Business Day following the date on which the
Company delivers to the Agent its financial statements in accordance with
Section 5.1(d)(ii), together with a certificate showing that a change in the
Margin is required; provided, however, if the financial statements required by
Section 5.1(d)(ii) for the applicable quarters, together with the foregoing
certificate, are not delivered within the required time period, then, until such
delivery the "Margin" shall be deemed to be 0.800%. Notwithstanding the
foregoing, until the financial statements for the quarter ended June 30, 1997
are delivered pursuant to Section 5.1(d)(ii), the Margin shall be 0.800%.
"Material Adverse Event" means any event, occurrence or state of facts
which has or could reasonably be expected to have a material adverse effect on
the business, properties, assets, operations, condition (financial or otherwise)
of the Company or any of its Subsidiaries.
"Multiemployer Plan" means any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA or Section 414(f) of the Code.
"Net Income" means, for any period, the net income of the Company and
its consolidated Subsidiaries after taxes, determined in accordance with GAAP.
"Notes" means the promissory note(s) of the Company as described in
Section 2.1(c) evidencing the Advances, in the form of Exhibit 2.1, executed and
delivered by the Company to
each Lender, together with any promissory note or notes issued in exchange or
replacement therefore.
"Obligations" means the principal of and interest on the Advances, the
Letter of Credit Obligations and all other indebtedness, obligations and
liabilities of the Company to any Lender under, arising out of or in connection
with this Agreement or any other Loan Document (including indemnities, fees and
expenses), whether now existing or hereafter incurred, direct or indirect,
absolute or contingent, matured or unmatured, joint or several, whether for
principal, interest, reimbursement obligations, fees, expenses or otherwise, and
the due performance and compliance by the Company and its Subsidiaries with the
terms and conditions of this Agreement and the other Loan Documents.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Percentage" means each Lender's pro rata share of the Tranche A
Commitment of the Lenders expressed as a percentage as set forth on the
signature pages of this Agreement, as such Percentage may from time to time be
amended, provided, that, collectively, NBD Bank's and the London Agent's pro
rata share collectively will be deemed to be 50% and any fees or costs payable
to them or payable by them hereunder based on their Percentage will be paid to
or by NBD Bank.
"Permits" means any and all licenses, permits, orders, decrees or
approvals which are required under Governmental Regulations in connection with
any of the businesses or properties of any Loan Party.
"Permitted Liens" means Liens permitted by Section 5.2(e).
"Plan" means, with respect to any person, any pension plan (other than
a Multiemployer Plan) subject to Title IV of ERISA or to the minimum funding
standards of Section 412 of the Code which has been established or maintained by
such person, any Subsidiary or such person or any ERISA Affiliate, or by any
other person if such person, any Subsidiary or such person or any ERISA
Affiliate could have liability with respect to such pension plan.
"Prime Rate" means the per annum rate equal to the prime rate of
interest as announced by NBD at its principal office at Detroit, Michigan, as in
effect from time to time, which rate may not be the lowest rate charged by NBD
to any of its customers, which Prime Rate shall change simultaneously with any
change in such announced prime rate.
"Prohibited Transaction" means any transaction involving any Plan which
is proscribed by Section 406 of ERISA or Section 4975 of the Code.
"Rabobank" means Cooperatieve Centrale Raiffeisen - Boerenleenbank
B.A., "Rabobank Nederland", New York Branch.
"Reportable Event" means a reportable event as described in Section
4043(b) of ERISA including those events as to which the 30-day notice period is
waived under Part 2615 of the regulations promulgated by the PBGC under ERISA.
"Required Lenders" means those Lenders which hold at least 66-2/3% of
the outstanding Advances, or if no Advances are outstanding, 66-2/3% of the
combined Tranche A and Tranche B Commitments.
"Short Term Credit Agreement" means the Short Term Revolving Credit
Agreement, executed by the Company, the Agent and the Lenders, dated the date
hereof, and any amendments or restatements thereof.
"Subordinated Debt" shall mean Indebtedness of the Company or any of
its Subsidiaries which is incurred, after the Effective Date, with the written
consent of the Required Lenders; provided that such Indebtedness is made
subordinate to the Obligations on terms reasonably satisfactory to the Required
Lenders; and provided further that, unless otherwise agreed to by the Required
Lenders, the Agent shall take custody and possession of all original notes or
other evidence of such Indebtedness.
"Subsidiary" of any person means any other person (whether now existing
or hereafter organized or acquired) in which (other than directors qualifying
shares required by law) at least a majority of the securities or other ownership
interests of each class having ordinary voting power or analogous right (other
than securities or other ownership interests which have such power or right only
by reason of the happening of a contingency), at the time as of which any
determination is being made, are owned, beneficially and of record, by such
person or by one or more of the other Subsidiaries of such person or by any
combination thereof.
"Tangible Net Worth" means, as of any date, (a) the amount of any
capital stock, paid in capital and similar equity accounts of the Company and
its consolidated Subsidiaries plus (or minus in the case of a deficit) the
capital surplus and retained earnings of the Company and its consolidated
Subsidiaries, minus (b) the amount of any treasury stock reflected on such
balance sheet, minus (c) any amount attributable to the write-up of assets
(other than marketable securities) on or after September 30, 1995, minus (d) the
net book value of all items of the following character which are included in the
assets of the Company and its consolidated Subsidiaries as of such date: (i)
goodwill, including the excess of cost over book value of any asset; (ii)
organization or experimental expenses; (iii) unamortized debt discount and
expense; (iv) patents, trademarks, trade names and copyrights; (v) franchises,
licenses and permits; (vi) amounts due from Affiliates and (vii) all other
assets which are deemed intangible assets under GAAP.
"Termination Date" means the earlier to occur of (a) May 31, 2000 and
(b) the date on which the Commitments shall be terminated pursuant to the
provisions of this Agreement.
"Total Liabilities" means, as of the date of determination, the total
liabilities of the Company and its consolidated Subsidiaries that would properly
be classified as a liability under GAAP.
"Tranche A Commitment" means US$40,000,000, as the same may be reduced
pursuant to Section 2.5 or hereafter amended from time to time.
"Tranche B Commitment" means the CDN Dollar Equivalent Amount of
US$5,000,000, as the same may be reduced pursuant to Section 2.5 or hereafter
amended from time to time.
"Type of Advance" means a Dutch Guilder Advance, Floating Rate Advance,
LIBOR Rate Advance, Canadian Prime Rate Advance and Cost of Funds Advance.
"US Advance(s)" means an advance under Section 2.1(a) which is made in
Dollars and may be either a Floating Rate Advance or a LIBOR Rate Advance.
"US Lender(s)" means those financial institutions listed on the
signature pages to this Agreement as having a Tranche A Commitment, together
with such other financial institutions which from time to time become party to
this Agreement and have a Tranche A Commitment.
1.2 Certain Rules of Construction. For purposes of this Agreement:
(a) Certain References. The words "herein," "hereof," and "hereunder,"
and words of similar import, refer to this Agreement as a whole and not to any
particular provision of this Agreement, and references to Articles, Sections,
Exhibits or Schedules, and similar references, are to Articles or Sections of,
or Exhibits or Schedules to, this Agreement unless otherwise specified.
(b) General Rules. Unless the context otherwise requires: (i) the
singular includes the plural, and vice versa; (ii) all definitions and
references to an agreement, instrument or document shall mean such agreement,
instrument or document together with all exhibits and schedules thereto and any
and all amendments, supplements or modifications thereto as the same may be in
effect at the time such definition or reference is applicable for any purpose;
(iii) all references to any party shall include such party's successors and
permitted assigns; (iv) the term "including" means including, without
limitation; and (v) reasonable attorneys' fees shall include reasonably
allocated costs of in-house counsel.
(c) Accounting Terms. All accounting terms used herein which are not
expressly defined in this Agreement shall have the meanings given to them in
accordance with GAAP, all computations made pursuant to this Agreement shall be
made in accordance with GAAP, and all financial statements shall be prepared in
accordance with GAAP.
1.3 Acknowledgment and Restatement of Credit.
(a) Acknowledgment. By executing this Agreement, the Agent and the
Company acknowledge and agree that as of the date hereof, the principal amount
of the Existing Indebtedness owed to NBD, ▇▇▇▇▇▇ and NCB by the Company is
$15,000,000 (the "Existing Principal Indebtedness"). The Company further
acknowledges and agrees that, as of the Effective Date, all Existing
Indebtedness is owed without offset, deduction, counterclaim or any other
defense or claim whatsoever.
(b) Effect of Restatement. The parties acknowledge and agree that this
Agreement and the other Loan Documents amend, modify and restate the Existing
Indebtedness to NBD and NCB under the Existing Loan Agreement and the related
agreements executed and delivered thereunder, and the execution and delivery of
this Agreement or any of the Loan Document shall not constitute (i) a novation
or (ii) a waiver or release of any rights, claims or remedies of ▇▇▇▇▇▇ or NBD
under the Existing Loan Agreement or any of the related agreements thereunder,
or any indebtedness or other obligations owing to ▇▇▇▇▇▇ or NBD thereunder based
on any facts or events occurring or existing prior to the date hereof and
unknown to ▇▇▇▇▇▇ and NBD prior to the date hereof. Upon the Effective Date, all
indebtedness under the Existing Loan Agreement shall constitute Obligations
hereunder and, unless otherwise requested by the Company as required under
Section 2.2, the Existing Principal Indebtedness will be deemed to be a Floating
Rate Advance under this Agreement and each Lender hereby purchases, a pro rata
portion of such Existing Principal Indebtedness equal to the product of their
respective Percentage multiplied by the Existing Principal Indebtedness. Each
purchasing Lender agrees to fund its pro rata share on the Effective Date to the
Agent for the benefit of NCB, ▇▇▇▇▇▇ and NBD, as appropriate. All such purchases
by any Lenders are without recourse or warranty of any kind.
ARTICLE II
CREDIT FACILITY AND ADVANCES
2.1 Commitments of the Lenders.
(a) Tranche A Commitments. Subject to the terms and conditions of this
Agreement, each Lender agrees, for itself only, to make Advances to the Company
from time to time from the Effective Date until the Termination Date on any
Business Day up to an aggregate principal amount which, when added to such
Lender's pro rata portion of the Letter of Credit Obligations outstanding at
such time, shall not exceed the amount set forth opposite its name on the
signature pages hereof as its Commitment. Subject the terms of this Agreement,
the Company may request that an Advance be made in Dollars or Dutch Guilders,
provided, that the maximum principal amount of Dutch Guilder Advances that may
be outstanding at any one time to all the Lenders may not exceed the Equivalent
Amount of US$10,000,000 ("Dutch Guilder Limit"). It is agreed that the London
Agent will only make Dutch Guilder Advances and NBD Bank will only make US
Advances and provided further that the amount of NBD Bank's Commitment will be
reduced
Dollar for Dollar by the Dollar Amount of any outstanding Dutch Guilder
Advances. Until such time as the Agent receives the Guaranty executed by
Kurstjens Terra-Gator B.V., no Dutch Guilder Advances will be made by the US
Lenders.
(b) Tranche B Commitments. Subject to the terms and conditions of this
Agreement, the Canadian Lender agrees to make Canadian Advances to the Company
from time to time from the Effective Date until the Termination Date on any
Business Day up to an aggregate principal amount outstanding at any one time
which may not exceed the Equivalent Amount of US$5,000,000 ("Canadian Dollar
Limit").
(c) Notes. The Advances made by each Lender shall be evidenced by, and
be payable in accordance with the terms of, a separate Note for each type of
currency advanced by such Lender, made by the Company payable to the order of
the lending office designated by such Lender. The Company and Lenders hereby
irrevocably authorize the Agent to make or cause to be made, at or about the
time of each Advance made by the Agent, an appropriate notation on the records
of the Agent (and the London Agent or the Canadian Lender, as appropriate)
reflecting the principal amount, applicable currency, Type of Advance and Loan
Period of such Advance, and the Agent shall make or cause to be made, on or
about the time of receipt of payment of any principal of the Notes, an
appropriate notation on its records reflecting such payment. The aggregate
amount of all Advances set forth on the records of the Agent shall be rebuttable
presumptive evidence of the principal amount and accrued interest owing and
unpaid on a Note of a Lender.
(d) Facility Fees. The Company agrees to pay to the Agent in Dollars
for the benefit of the US Lenders (pro rata according to each US Lender's
Percentage) a facility fee computed at the per annum rate equal to the
applicable Facility Margin on the Tranche A Commitments. The Company agrees to
pay to the Canadian Lender in US Dollars a facility fee ("Canadian Facility
Fee") computed at the per annum rate equal to the applicable Facility Margin on
the the US Dollar limit of the Tranche B Commitment. Such facility fees shall
accrue from and after the Effective Date and shall be due and payable quarterly
in arrears, beginning on July 10, 1997, and on the first day of each fiscal
quarter of the Company thereafter through the Termination Date, with any accrued
but unpaid facility fees due on the Termination Date. Such fees will be debited
by the Agent and/or the Canadian Lender from account no. 16 128 53 of the
Company maintained at the main office of the Agent (unless the Company otherwise
instructs the Agent and the Canadian Lender in writing). The Agent and/or the
Canadian Lender will furnish to the Company written notice thereof setting out
the details of such calculation on or before the tenth Business Day following
the end of the fiscal quarter.
(e) Currency Fluctuations; Permitted Excess over Aggregate Commitment.
Notwithstanding the limitations in Sections 2.1, (i) if at any time the Dollar
Amount of the aggregate principal amount of all outstanding Canadian Advances is
greater than 105% of the Canadian Dollar Limit, the Company shall promptly
prepay an aggregate principal amount of Canadian Advances such that the Dollar
Amount of the aggregate principal amount of all outstanding Canadian Advances
does not exceed the Canadian Dollar Limit, or (ii) if at any time
the Dollar Amount of the aggregate principal amount of all outstanding Dutch
Guilder Advances is greater than 105% of the Dutch Guilder Limit, the Company
shall promptly prepay an aggregate principal amount of Dutch Guilder Advances
such that the Dollar Amount of the aggregate principal amount of all outstanding
Dutch Guilder Advances does not exceed the Dutch Guilder Limit; or (iii) if at
any time the Dollar Amount of the Dutch Guilder Advances, plus the amount of the
US Advances is greater than the Tranche A Commitment, the Company shall promptly
prepay an aggregate principal amount of the US Advances such that the Dollar
Amount of the aggregate principal amount of all outstanding Dutch Guilder
Advances when added to the aggregate principal amount of all outstanding US
Advances does not exceed the Tranche A Commitment; provided, that this Section
2.1(d) shall not be interpreted to permit the Company to request the making of a
new Advance or the continuation or conversion of an existing Advance if, after
giving effect to such new Advance, continuation or conversion, the provisions of
Section 2.1(a) would be violated.
2.2 Requesting Advances.
(a) Types of Advances. Each US Advance may be either a Floating Rate
Advance or a LIBOR Rate Advance, and each Canadian Advance may be either a
Canadian Prime Rate Advance or a Cost of Funds Advance. Dutch Guilder Advances,
Floating Rate Advances, LIBOR Rate Advances, Canadian Prime Rate Advances and
Cost of Funds Advances are each being herein called a "Type of Advance". Except
for Advances which exhaust the entire remaining amount of the Commitment, (i)
the principal amount of each Floating Rate Advance will be at least $100,000 or
a higher integral multiple of $100,000, (ii) the principal amount of each LIBOR
Rate Advance, will be at least $1,000,000, or a higher integral multiple of
$100,000, (iii) the principal amount of each Dutch Guilder Advance shall be at
least Equivalent Amount of $100,000, and (iv) each Canadian Advance shall be at
least CDN $100,000 or a higher integral, multiple of CDN $100,000.
(b) Requests for Advances. The Company will give the Agent notice at
its office in Detroit, Michigan (or such other location as the Agent may from
time to time direct) of each proposed Advance (and in the case of a Canadian
Advance notice may be given, at the Company's option, to the Canadian Lender at
its main office in Toronto, Ontario): (a) in the case of a Floating Rate
Advance, not later than 2:00 p.m., Detroit time, on the proposed Funding Date of
such Advance; (b) in the case of a LIBOR Rate Advance not later than 2:00 p.m.,
Detroit time, on a day which is at least three Business Days prior to the
Funding Date of such Advance; (c) in the case of a Cost of Funds Advance or
Canadian Prime Rate Advance, not later than 10:00 a.m., Toronto time, on a day
which is at least one Business Day prior to the proposed Funding Date of such
Advance; and (d) in the case of a Dutch Guilder Advance, not later than 10:00
a.m., Detroit time on a day which is at least four Business Days prior to the
Funding Date of such Advance. Any notice received after the hour specified
above, shall be deemed to be notice given prior to such hour on the next
succeeding Business Day. Each such request shall be effective upon receipt by
the Agent, shall be in writing or by telephone to be promptly confirmed in
writing (to be in the form of Exhibit 2.2), and shall specify the currency, Type
of Advance, the
Funding Date and the principal amount for each Advance and, for any Fixed Rate
Advance, the Loan Period thereof.
(c) Conversion of Advances; Procedures. So long as no Default or Event
of Default exists and is continuing, the Company may convert all or any part of
any outstanding (i) Floating Rate Advance into a LIBOR Rate Advance, if
available, by giving notice to the Agent of such conversion not later than 2:00
p.m., Detroit time, on a date which is at least three Business Days prior to the
date of the requested conversion and (ii) Canadian Prime Rate Advance to a Cost
of Funds Advance by giving notice to the Agent and/or the Canadian Lender of
such conversion not later then 10:00 a.m., Toronto time, on a date which is at
least one Business Day prior to the date of the requested conversion. Each such
notice shall be effective upon receipt by the Agent, shall be in writing or by
telephone to be promptly confirmed in writing (in either case, to be in the form
of Exhibit 2.2), shall specify the Funding Date, Type of Advance, the total
principal amount to be so converted and the Advance Period therefor. Each
conversion of a Floating Rate Advance into a LIBOR Rate Advance shall be on a
Business Day, and in an amount as provided in Section 2.2(a).
(d) Procedures at End of Loan Period.
(i) Automatic Conversions and Extensions. Unless the Company
requests a new LIBOR Rate Advance in accordance with subsection (b) above or
repays the applicable Advance, the Agent shall automatically and without request
by the Company, on the last day of the applicable Loan Period, convert each
LIBOR Rate Advance to a Floating Rate Advance. Unless the Company requests a new
Cost of Funds Advance in accordance with subsection (b) above or repays the
applicable Advance, the Canadian Lender shall automatically and without request
by the Company, on the last day of the applicable Loan Period, convert each Cost
of Funds Advance to a Canadian Prime Rate Advance. Unless the Company requests a
new Dutch LIBOR Advance in accordance with subsection (b) above or repays the
applicable Advance, the London Agent shall automatically and without request by
the Company, on the last day of the applicable Loan Period, extend each Dutch
LIBOR Advance for a Loan Period of one month.
(ii) Extensions. So long as no Default or Event of Default
exists and is continuing, and subject to the limitations set forth in Section
2.2(a), the Company may cause all or any part of any outstanding LIBOR Rate
Advance to continue to bear interest at an Adjusted LIBOR Rate, if available, at
the end of the then-applicable Loan Period, by notifying the Agent, not later
than 2:00 p.m., Detroit time, at least three Business Days prior to the new
Funding Date. So long as no Default or Event of Default exists and is
continuing, and subject to the limitations set forth in Section 2.2(a), the
Company may cause all or any part of any outstanding Cost of Funds Advance to
continue to bear interest at a Cost of Funds Rate, if available, at the end of
the then-applicable Loan Period, by notifying the Agent and/or the Canadian
Lender, not later than 10:00 a.m., Toronto time, at least one Business Day prior
to the new Funding Date. So long as no Default or Event of Default exists and is
continuing, and subject to the limitations set forth in Section 2.2(a), the
Company may cause all or any part of any outstanding Dutch Guilder Advance to
continue to bear interest at an Adjusted Dutch LIBOR Rate, if available, at the
end
of the then-applicable Loan Period, by notifying the Agent, not later than 10:00
a.m., Detroit time, at least four Business Days prior to the new Funding Date.
Each such notice shall be effective upon receipt by the Agent and shall be in
writing or by telephone to be promptly confirmed in writing (in either case to
be in the form of Exhibit 2.2), and shall specify the currency, Type of Advance,
the first day of the applicable Loan Period, the principal amount of the new
Fixed Rate Advance and the Loan Period therefor. Each new Loan Period for Fixed
Rate Advances shall begin on a Business Day and the aggregate amount of the
Advances bearing the new rate shall be in an amount as provided in Section
2.2(a).
(e) Reaffirmation. Each request for an Advance or Letter of Credit
shall be deemed a representation and warranty by the Company that all conditions
precedent to such Advance under Article III are satisfied as of the date of such
request and as of the date of such Advance.
2.3 Funding Advances.
(a) Funding by the Advancing Agent. Upon fulfillment of the applicable
conditions set forth in Article III of this Agreement, and subject to the
Advancing Agent's receipt of funds in accordance with Section 2.3(b) below, (i)
the Agent will, in the case of US Advances, not later than 4:15 p.m., Detroit
time, on the proposed Funding Date of each US Advance, make available to the
Company the requested US Advance by depositing the amounts thereof, in
immediately available funds, in account no. 16 128 53 of the Company maintained
at the main office of the Agent (unless the Company otherwise instructs the
Agent in writing to pay such funds elsewhere), (ii) the Canadian Lender will, in
the case of Canadian Advances, not later than 4:15 p.m., Toronto time, on the
proposed Funding Date of each Canadian Advance, make available to the Company
the requested Canadian Advance by depositing the amounts thereof, in immediately
available funds, in such account as shall be requested by the Company in
writing, and (iii) the London Agent will, in the case of Dutch Guilder Advances,
not later than 4:15 p.m., London time, on the proposed Funding Date of each
Dutch Guilder Advance, make available to the Company the requested Dutch Guilder
Advance by depositing the amounts thereof, in immediately available funds, in
such account as shall be requested by the Company in writing.
(b) Funding by Lenders. On each Funding Date, not later than 4:00 p.m.,
Detroit time, for US Advances and not later than 4:00 p.m., London time, for
Dutch Guilder Advances, each Lender shall make its pro rata portion necessary to
fund its appropriate Percentage of the Advances available at the office of the
Advancing Agent, in immediately available funds for disbursement to the Company.
If and to the extent such Lender shall not have so made its pro rata portion
necessary to fund its appropriate Percentage of the Advances to the Advancing
Agent, the Advancing Agent may (but shall not be obligated to) make such amount
available to the Company (herein called an "Interim Advance") and such Lender
and the Company severally agree to pay to the Advancing Agent forthwith on
demand an amount equal to such Interim Advance, together with interest thereon,
for each day from such Funding Date until the date such Interim Advance is
repaid to the Advancing Agent at a rate per annum equal to (i) the Federal Funds
Rate, in the event such Interim Advance is repaid to the Advancing Agent by such
Lender, or (ii) the Applicable Rate during such period, in the event such
Interim Advance is repaid to the
Advancing Agent by the Company. If such Lender pays an amount equal to the
Interim Advance, together with interest as provided above, to the Advancing
Agent, such amount so paid shall constitute an Advance by such Lender for the
purpose of this Agreement as of such Funding Date. The failure of any Lender
("Defaulting Lender") to make pro rata portion necessary to fund its applicable
Percentage of the Advances available to the Advancing Agent on a Funding Date
shall not relieve any other Lender of its obligation to make available to the
Advancing Agent its pro rata share necessary to fund its Percentage of an
Advance on the applicable Funding Date, but neither the Advancing Agent nor any
other Lender shall be responsible for, nor have any liability to the Company as
a result of, the failure of such Defaulting Lender to make such pro rata portion
necessary to fund its Percentage of the Advances available to the Advancing
Agent; provided, however, that the foregoing shall not affect or limit any
liability of the Defaulting Lender individually to the Company or the Advancing
Agent for such failure by the Defaulting Lender.
(c) Advancing Branch. Each Lender may, at its option, elect to make,
fund or maintain any Advance hereunder at the branch or office specified under
its signature hereto or such other of its branches or offices as such Lender may
from time to time elect.
2.4 Letters of Credit.
(a) Issuance of Letters of Credit. Provided there is sufficient
availability under the Tranch A Commitment, as described in Section 2.1 above,
and if requested by the Company (with not less than three Business Days' prior
written application in such form as required by the Agent), the Agent shall
issue or cause to be issued for the account of a Loan Party standby Letters of
Credit upon the following conditions:
(i) Total Amount. The total face amount of standby Letters of
Credit shall not exceed $1,000,000, in the aggregate, at any one time
outstanding.
(ii) Expiry. The expiry date of any Letter of Credit shall not
exceed a maximum of 12 months from the date of issuance; provided,
however, that no Letter of Credit shall be outstanding on or after the
Termination Date unless it shall be (x) secured by cash or other
collateral satisfactory to the Required Lenders and have an expiry no
later than 12 months after the Termination Date, or (y) replaced as of
the Termination Date under conditions which cause such outstanding
Letter of Credit to be cancelled.
(iii) Reduction in Availability. The amount of all outstanding
Letters of Credit, when added to the outstanding Advances under Section
2.1 above, must not exceed the Tranch A Commitment.
(iv) Documentation. The Company shall execute standard
documentation as shall be requested by the Agent with respect to the
issuance of such Letter of Credit.
(v) Conditions Met. On the date of issuance, all of the
conditions precedent specified in Sections 3.1 and 3.2 shall have been
satisfied.
(b) Obligations Unconditional. The obligation of the Company to pay to
the Agent the amount of any payment made by the Agent or any Lender under any
Letter of Credit shall be absolute, unconditional and irrevocable and shall
remain in full force and effect until all Letter of Credit Obligations of the
Company and the Loan Parties to the Lenders thereunder shall have been
satisfied, and such Obligations shall not be affected, modified or impaired upon
the happening of any event, including without limitation, any of the following,
whether or not with notice to, or the consent of, the Company:
(i) Any lack of validity or enforceability of any Letter of
Credit or any documentation relating to any Letter of Credit (including
any documentation required under subsection (b)(iv) above)
(collectively, with the Letter of Credit, the "L/C Documents") or to
any transaction related in any way to such Letter of Credit;
(ii) Any amendment, modification, waiver, consent, or any
substitution, exchange or release of or failure to perfect any interest
in collateral or security, with respect to any of the L/C Documents;
(iii) The existence of any claim, setoff, defense or other
right which any Loan Party may have at any time against any beneficiary
or any transferee of any Letter of Credit (or any persons for whom any
such beneficiary or any such transferee may be acting), the Agent or
any other person, whether in connection with any of the L/C Documents,
the transactions contemplated herein or therein or any unrelated
transactions;
(iv) Any draft or other statement or document presented under
any 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;
(v) Payment by the Agent to the beneficiary under any Letter
of Credit against presentation of documents which do not strictly
comply with the terms of the Letter of Credit, including failure of any
documents to bear any reference or adequate reference to such Letter of
Credit;
(vi) Any failure, omission, delay or lack on the part of the
Agent or any party to any of the L/C Documents to enforce, assert or
exercise any right, power or remedy conferred upon the Agent or any
such party under this Agreement or any of the L/C Documents, or any
other acts or omissions on the part of the Agent or any such party; and
(vii) Any other event or circumstance that would, in the
absence of this clause, result in the release or discharge by operation
of law or otherwise of a Loan Party from the performance or observance
of any obligation, covenant or agreement contained in this Section
2.4(b).
Nothing set forth in this Section 2.4(b) or in any other provision of
this Agreement or any other Loan Document shall relieve the Agent of any
liability it may have for bad faith, willful misconduct or failure to use due
care in the examination of documents presented in connection with any draw under
a Letter of Credit.
(c) Funding Draws. In the event of a draw or payment of a draft under
any Letter of Credit, the Agent is authorized to charge the Company's demand
deposit account maintained with Agent or any Lender for the amount of the draw
or draft. If the Agent does not charge such account, then the amount shall be
treated a Floating Rate Advance under Section 2.1 and any amounts paid by the
Agent to a third party under any Letter of Credit shall be deemed a Floating
Rate Advance and bear interest until repaid by the Company. Such Advance shall
be disbursed notwithstanding any failure to satisfy any conditions for
disbursement of any Advance set forth in Section 3.2 and, to the extent of such
Advance, the reimbursement obligation of the Company with respect to such Letter
of Credit under this subsection shall be deemed satisfied.
(d) Lender Participations in Letter of Credit. Upon the issuance by the
Agent of a Letter of Credit, the Agent shall be deemed, without further action
by any party hereto, to have sold to each Lender (other than the Canadian Lender
and the London Agent), and each such Lender shall be deemed, without further
action by any party hereto, to have purchased from the Agent a participation in
such Letter of Credit and the related Letter of Credit Obligations in proportion
to each such Lender's respective Percentage. The Agent shall promptly notify
each Lender of the terms of each Letter of Credit and of the amount of such
Lender's participation in such Letter of Credit.
(e) Fees. Any outstanding standby Letter of Credit will accrue a
commission at a per annum rate of 1.25% of the face amount of such Letter of
Credit payable in advance at time of issuance. Of such commission, the Agent
shall retain a fee of 0.125% per annum of the face amount and the remaining
1.125% per annum shall be divided pro rata among the Lenders (other than the
Canadian Lender and the London Agent) based on each such Lender's Percentage and
the Agent shall forward the appropriate amount to each such Lender immediately
upon receipt.
2.5 Termination or Reduction of Commitment.
(a) Optional. The Company has the right to terminate or reduce the
Tranche A Commitments and/or the Tranche B Commitment at any time and from time
to time, in which case the applicable Commitments shall be terminated or
permanently reduced by the amount so specified, as the case may be (with any
reduction causing a pro rata reduction in each Lender's Commitment); provided,
however, that (i) the Company shall give notice of such termination or reduction
in writing to the Agent at least five Business Days in advance thereof,
specifying the applicable Tranche and the amount by which the applicable
Commitment is being reduced and effective date thereof, (ii) each partial
reduction of the Tranche A Commitment shall be in a minimum amount of $5,000,000
and in integral multiples of $500,000, and each partial reduction of the Tranche
B Commitment shall be in a minimum amount of $500,000 and in integral multiples
of $100,000, (iii) no such termination or reduction shall be permitted with
respect to
any portion as to which a request for an Advance is then pending, (iv) the
applicable Commitment may not be reduced below the balance of any Advances then
outstanding under it, and unless otherwise agreed to by the Agent and the
Required Lenders, any reduction in the Tranche A Commitment shall cause a
proportional reduction in the Dutch Guilder Limit. The termination or reduction
of the amount of the any Commitments pursuant to this Section 2.5 shall be
permanent and may not be reinstated.
(b) Termination by Lenders. The Commitments, and thus the obligation of
the Lenders to make Advances and issue any Letters of Credit, shall terminate:
(i) Immediately and without further action upon the occurrence
of an Event of Default of the nature referred to in clause (h) of
Section 6.1; or
(ii) Immediately when any Event of Default (other than of the
nature specified in clause (h) of Section 6.1) shall have occurred and
be continuing and either (A) the Required Lenders shall have demanded
payment of the Notes, or (B) the Required Lenders shall elect to
terminate the Commitments by giving written notice to the Company for
purposes of this clause.
(c) Default Interest. Upon the occurrence of an Event of Default under
Section 6.1(a) and during the continuation thereof, the principal amount of the
Obligations shall bear interest at the applicable Default Rate. At the election
of the Required Lenders, upon the occurrence of an Event of Default other than
under Section 6.1(a), and during the continuation thereof, the principal amount
of the Obligations shall bear interest at the applicable Default Rate.
2.6 Interest and Principal Repayment.
(a) Regular Interest Payments. The Company will pay interest to the
applicable Advancing Agent for the benefit of the Lenders for US Advances and
Dutch Guilder Advances, and to the Canadian Lender for its benefit for Canadian
Advances, at the Applicable Rate on the unpaid principal amount of each Advance
as follows:
(i) Floating and Canadian Prime Rate Advances. Accrued and
unpaid interest on Floating Rate Advances and Canadian Prime Rate
Advances shall be payable: (A) on each Interest Payment Date; (B) as to
any portion of such Advance which is converted to a Fixed Rate Advance,
on the date of such conversion; and (C) on the Termination Date.
(ii) Fixed Rate Advances. Accrued and unpaid interest on Fixed
Rate Advances shall be payable on the last day of each Loan Period and,
if the Loan Period exceeds three months or 90 days, as the case may be,
on each Interest Payment Date until the end of the applicable Loan
Period.
(b) Principal. The principal amount of the Advances shall be payable to
the appropriate Advancing Agent for the benefit of the Lenders for US Advances
and Dutch Guilder Advances,
and to the Canadian Lender for its benefit for Canadian Advances, immediately
upon the earlier of (i) the occurrence of an Event of Default and acceleration
of the Obligations as a result thereof, or (ii) termination of this Agreement.
Payments will be applied by the Agent as provided in Section 6.2
(c) Optional Prepayment. The Company may at any time and from time to
time prepay all or a portion of the Advances, without premium or penalty;
provided, however, that (i) each prepayment of a Floating Rate Advance shall be
in a minimum amount of $100,000 and, in an integral multiple of $100,000, (ii)
each prepayment of a LIBOR Rate Advance or Dutch Guilder Advance shall be in a
minimum amount of $1,000,000 (or the Equivalent Amount in Dutch Guilders) and,
with respect to LIBOR Rate Advances only, in an integral multiple of $100,000,
and (iii) each prepayment of a Canadian Advance shall be in a minimum amount of
CDN $100,000 and in an integral multiple of CDN $100,000; and provided further
that any prepayment of a Fixed Rate Advance which is made on a day other than
the last day of a Loan Period shall be accompanied by the indemnity payment set
forth in Section 2.10(d) below together will all accrued but unpaid interest on
the Advance being repaid.
(d) Final Payment. Unless earlier payment is required under this
Agreement, Company will pay to the Agent with respect to all US Advances and
Letter of Credit Obligations, and to the London Agent with respect to all Dutch
Guilder Advances, for the account of the Lenders on the Termination Date, (i)
the outstanding principal amount of all outstanding US Advances and Dutch
Guilder Advances and (ii) cash or other collateral satisfactory to the Required
Lenders to secure the repayment of any Letter of Credit Obligations (or cause
any outstanding Letters of Credit to be replaced as of the Termination Date
under conditions which cause such outstanding Letter of Credit to be cancelled).
Unless earlier payment is required under this Agreement the Company will pay to
the Canadian Lender on the Termination Date, the principal amount of all
outstanding Canadian Advances. Principal payments will be applied by the Agent
as provided in Section 6.2.
(e) Payment on Non-Business Day; Payment Computations. Except as
otherwise provided in this Agreement, whenever any installment of principal of,
or interest on, any Advance or any other Obligation becomes due and payable on a
day which is not a Business Day, the maturity thereof shall be extended to the
next succeeding Business Day and, in the case of any installment of principal,
interest shall be payable thereon at the Applicable Rate (or Default Rate if
applicable), determined in accordance with this Agreement during such extension.
Computations of interest on US Advances and Dutch Guilder Advances, fees and
other amounts due under this Agreement shall be made on the basis of a year of
360 days, for the actual number of days elapsed, including the first day but
excluding the last day of the relevant period. Computations of interest on
Canadian Advances due under this Agreement to the Canadian Lender shall be made
on the basis of a year of 365 or 366 days, as the case may be, for the actual
number of days elapsed, including the first day but excluding the last day of
the relevant period.
(f) Currency Conversions. Notwithstanding the foregoing provisions of
this Agreement, if, after the making of any Advance in any currency other than
Dollars, currency control or exchange regulations are imposed in the country
which issues such currency with the result that different types of such currency
(the "New Currency") are introduced and the type of currency in which the
Advance was made (the "Original Currency") no longer exists or the Company is
not able to make payment to the Agent for the account of the Lenders in such
Original Currency, then all payments to be made by the Company hereunder or
under the Notes in such currency shall be made in such amount and such type of
the New Currency as shall be equivalent (based upon market value) to the amount
of such payment otherwise due hereunder or under the Notes in the Original
Currency. In addition, if, after the making of any Advance in any currency other
than Dollars, the Company is not able to make payment to the Agent for the
account of the Lenders in the type of currency in which such Advance was made
(or in any New Currency as set forth above) because of the imposition of any
such currency control or exchange regulation, then such Advance shall instead be
repaid when due in Dollars in a principal amount equal to the Dollar Amount (as
of the date of repayment) of such Advance, it being the intention of the parties
hereto that the Company take all risks of the imposition of any such currency
control or exchange regulations. The Agent is hereby authorized, for the benefit
of the Lenders, to charge the account, if any, of the Company maintained with
NBD for each payment of principal, interest and fees due from the Company as it
becomes due hereunder.
2.7 Payments by Company.
(a) Method of Payment. Each Advance shall be repaid or prepaid in the
currency in which it was made in the amount borrowed and interest payable
thereon shall be paid in such currency. The Company will make all payments of
fees and other payments due under this Agreement or any other Loan Document in
Dollars and in immediately available funds to the Agent, at the office specified
by the Agent from time to time, for the ratable benefit of the Lenders as
provided in this Agreement. Notwithstanding the foregoing, all fees payable to
the Agent with respect to its services hereunder shall be payable by the Company
for the sole benefit of the Agent. Subject to the terms and provisions of this
Agreement, (i) all amounts of principal, interest, fees and other Obligations
payable by the Company in Dollars hereunder or under the Notes shall be made in
US Dollars by 12:00 noon, local time, on the date when due in funds immediately
available to the Agent at the Agent's address specified on the signature pages
hereto, or at such other lending office of the Agent as may be specified in
writing by the Agent to the Company, and (iii) all amounts of principal,
interest, and other Obligations payable by the Company in any currency other
than US Dollars hereunder or under the Notes shall be made in such currency by
12:00 noon, local time, on the date when due in such currency for the account of
the Advancing Agent, at its lending office for such currency.
(b) Authority to Debit the Company's Accounts. The Company authorizes
the Agent, the Canadian Lender and the London Agent to fund payments of
interest, fees, costs and expenses and other amounts due the Agent or any Lender
under this Agreement or any of the Loan Documents by charging such amount
against the account of the Company (based on the currency in which it is
originally advanced) specified in Section 2.3(a) or such other account as the
Borrower may maintain with the applicable Advancing Agent, or if sufficient
funds are not available in the appropriate account, then as a Floating Rate
Advance for Obligations in US Dollars or as a Canadian Prime Rate Advance for
Obligations in CDN Dollars or as a Dutch Guilder Advance for Obligations due in
Dutch Guilders. Unless otherwise requested in writing by the Company, all
Obligations in US Dollars will be debited by the Agent as provided above, all
other Obligations are intended to be paid to the appropriate Advancing Agent by
the Company.
2.8 Remittance by Advancing Agent.
(a) Payments to Lenders. The Advancing Agent shall remit to each US
Lender its share of payments in immediately available funds (i) in the case of
payments of principal of any Advances or interest on any Advances, on the date
payments are made, according to its pro rata share of such payment based on its
actual outstanding Advances from time to time; and, (ii) in the case of fees
paid pursuant to Sections 2.1(d) and other amounts payable hereunder (other than
the amounts payable to the Agent under Section 2.9 or to the Agent or any Lender
under Sections 8.4 or 8.5), on the date payments are made, determined with
respect to each such Lender by its pro rata share of such fee or other amount.
Each payment delivered to an Advancing Agent for the account of any Lender shall
be delivered promptly, but in any event not later than the close of business on
the date received by the Advancing Agent if received by such Advancing Agent by
12:00 noon, local time, by such Advancing Agent to such Lender in the same type
and currency of funds which the Advancing Agent received at such Lender's
address specified on the signature pages hereto or at any lending office
specified by such Lender in a notice received by the Agent.
(b) Payment of Interest by Agent. If the Advancing Agent fails to remit
to any US Lender its share of any such payment received by the Agent from the
Company by 5:00 p.m., local time, or by the close of business of such Lender,
whichever occurs later, on the day such payment is to be made by the Advancing
Agent under Section 2.8(a), the Agent shall pay to such US Lender interest on
such US Lender's share of such payment at the Federal Funds Rate until such
share of such payment is received by such US Lender (unless waived by such
Lender).
(c) No Setoff or Deduction. All payments of principal of and interest
on the Advances and other Obligations shall be paid by the Company without
setoff, or counterclaim, and free and clear of, and without deduction or
withholding for, or on account of, any present or future taxes, levies, imposts,
duties, fees, assessments or other charges of any nature whatsoever, whether
imposed by any governmental authority or by any department, agency or taxing
authority or other Person.
2.9 Set-Off; etc.
(a) After Default. Upon the occurrence of an Event of Default and
acceleration of the Obligations, each Lender is hereby authorized at any time
and from time to time, without notice to the Company (any such notice being
expressly waived by the Company), 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 to or
for the credit or the account of the Company, including specifically any amounts
held in any account maintained at such Lender, against any and all Obligations.
Each Lender agrees to give prompt written notice to the Company after exercising
such right of set-off, provided, that the failure to give such notice will not
affect the validity of any set-off nor give rise to any claim or defense of any
Loan Party against the Agent or any Lender. Any amount set off by a Lender shall
be applied to the Obligations in accordance with the provisions of Section 6.2
below.
(b) Sharing. If any US Lender or any holder of any Note shall obtain
any payment (whether voluntary, involuntary, by application of offset or
otherwise) upon any Obligation which is to be shared under this Agreement or any
other Loan Document in excess of its share of such payment, then such Lender or
other holders shall purchase from the other US Lenders or the other holder of
Notes such participation in the relevant Obligation as shall be necessary for
such purchasing Lender or holder to share the excess payment ratably with such
other US Lenders or other holder according to the terms of this Agreement;
provided, however, that, if all or any portion of the excess payment is
thereafter recovered from such purchasing Lender or holder, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery, but
without interest. The Company agrees that any Lender or holder so purchasing a
participation from another Lender or holder pursuant to this section may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender or holder were the direct creditor of the Company in the amount of such
participation.
2.10 Additional Costs; Illegality and Impossibility.
(a) Taxes or Reserves. In the event that any Governmental Regulation
now or hereafter in effect and whether or not presently applicable to the
Lenders, or any interpretation or administration thereof by any governmental
authority charged with the interpretation or administration thereof, or
compliance by any Lender with any request or directive of any such authority
(whether or not having the force of law), shall (i) affect the basis of taxation
of payment to any Lender of any amounts payable by the Company under this
Agreement (other than taxes imposed on the overall net income of any Lender), or
(ii) impose, modify or deem applicable any reserve, special deposit, deposit
insurance or similar requirement against assets of, deposits with or for the
account of, or credit extended by any Lender, or (iii) impose any other
condition with respect to this Agreement, the Notes or any of the Advances and
the result of any of the foregoing is to increase the cost to any Lender of
making, funding or maintaining any of the Advances or to reduce the amount of
any sum receivable by any Lender thereon, then the Company will pay to such
Lender, from time to time upon request by such Lender, additional amounts
sufficient to compensate such Lender for such increased cost to or reduced sum
receivable by such Lender to the extent such Lender is not expressly compensated
therefor in the computation of the interest rate applicable to the Advances;
provided, that the Company shall not be required to pay such compensation to the
extent such increase is attributable to a factor which is not generally
applicable to all banks organized under the same authority as the bank or is
attributable to an increase in deposit insurance rates to levels which do not
exceed those in effect at the date of this agreement, without application of any
retroactive adjustment or rebate. If any Lender seeks reimbursement, it shall
give the Company and the Agent written notice, in reasonable detail, of the law,
rule or regulation, or interpretation or administration thereof, which may give
rise to the increased cost or reduced sum receivable to such Lender and the
reimbursement obligation of the Company. The Company shall not be obligated to
pay any such amount to the extent it was incurred by such Lender more than 90
calendar days prior to the date of delivery of such written notice.
(b) Capital. In the event that any Governmental Regulation now or
hereafter in effect and whether or not presently applicable to any Lender, or
any interpretation or administration thereof by any governmental authority
charged with the interpretation or administration thereof, or compliance by any
Lender with any guideline, request or directive of any such authority (whether
or not having the force of law), including any risk based capital guidelines
(excluding, however, any capital rules heretofore adopted and issued by any
governmental authority and presently in effect, but including any change in, or
in the interpretation of, any of such capital rules), affects or would affect
the amount of capital required or expected to be maintained by a Lender (or any
corporation controlling a Lender) and the Lender determines that the amount of
such capital is increased by or based upon the existence of such Lender's
obligations hereunder and such increase has the effect of reducing the rate of
return on such Lender's (or such Lender's controlling corporation's) capital as
a consequence of such obligations hereunder to a level below that which such
Lender (or such controlling corporation) could have achieved but for such
circumstances (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then the Company
will pay to such Lender additional amounts sufficient to compensate such Lender
(or such Lender's controlling corporation) for any increase in the amount of
capital and reduced rate of return which such Lender reasonably determines to be
allocable to the existence of its obligations hereunder; provided, that, the
Company shall not be required to pay such compensation to any Lender, to the
extent such reduction is attributable to any such law, rule or regulations, or
interpretation or administration thereof, or request or directive, as the case
may be, that is not generally applicable to all banks organized under the same
authority as such Lender (i.e., if the Lender is a State of Michigan chartered
bank, all State of Michigan chartered banks). If a Lender seeks reimbursement,
it shall give the Company and the Agent written notice, and reasonable detail,
of the law, rule or regulation, or interpretation or administration thereof,
which may give rise to the increased cost and the reimbursement obligation of
the Company. The Company shall not be obligated to pay any such amount to the
extent it was incurred by such Lender more than 90 calendar days prior to the
date of delivery of such written notice.
(c) Illegality and Impossibility.
(i) Repayment. In the event that any Governmental Regulation
now or hereafter in effect and whether or not presently applicable to
any Lender, or any interpretation or administration thereof by any
governmental authority (including the Board of Governors Reserve
System) charged with the interpretation or administration thereof, or
compliance by any
Lender with any request or directive of such authority (whether or not
having the force of law), including exchange controls, shall make it
unlawful or impossible for such Lender to make, maintain or fund any
Fixed Rate Advance at the Adjusted LIBOR Rate, Cost of Funds Rate or
Dutch LIBOR Rate (as applicable) or fund Advances in Dutch Guilders
under this Agreement, the Company shall, upon receipt of notice thereof
from such Lender to the Company and the Agent, repay in full to such
Lender the then outstanding principal amount of such LIBOR Rate
Advance, Cost of Funds Advance or Dutch Guilder Advance, as applicable,
together with all accrued interest thereon to the date of payment and
all amounts due to such Lender under Section 2.10(d), (i) on the last
day of the then current Loan Period applicable to the Advance if such
Lender may lawfully continue to maintain such Advance at the applicable
rate currency to such day, or (ii) immediately if such Lender may not
continue to maintain such Advance at the applicable rate or currency to
such day.
(ii) Conversion of Fixed Rate Advances to Floating Rate
Advances. Notwithstanding Section 2.10(c)(i), if such Section would
otherwise be applicable, but a Lender could lawfully maintain the Fixed
Rate Advances at the Floating Rate then, during such period as such
Lender cannot maintain the Fixed Rate Advances at the applicable rate,
the Fixed Rate Advances shall bear interest at a per annum rate equal
to the Floating Rate in effect from time to time. If all events or
conditions making it unlawful or impossible for such Lender to maintain
the Fixed Rate Advances at the applicable rate cease to exist, then the
Fixed Rate Advances shall again bear interest at the applicable rate,
commencing on the first day of the next Loan Period immediately
following the date all such events and conditions so cease to exist.
(d) Indemnity. If the Company fails to make any payment of principal or
interest in respect of any Fixed Rate Advance when due or makes any payment or
prepayment of the principal of any Fixed Rate Advance, for any reason, on any
date other than the last day of the Loan Period applicable thereto or if the
rate of interest with respect to any Fixed Rate Advance shall be converted from
the applicable rate, pursuant to Section 2.10(c), on a date other than the last
day of the Loan Period applicable thereto, or if the Company fails to borrow any
Fixed Rate Advance after requesting the same in accordance with this Agreement,
the Company shall reimburse the Lender upon written demand for any resulting
loss or expense incurred by such Lender, including any loss incurred in
obtaining, liquidating or employing deposits from third parties. Any written
demand shall include a statement as to the amount of such loss or expense, and
be prepared in good faith and in reasonable detail and shall be submitted by
such Lender to the Company and the Agent. Calculation of all amounts payable to
a Lender under this Section with regard to Fixed Rate Advances shall be made as
though such Lender shall have funded or committed to fund such through the
purchase of an underlying deposit in an amount equal to such Advances and having
a maturity comparable to such Advances; provided, however, that each Lender may
fund the Fixed Rate Advances in any manner it sees fit and the foregoing
assumption shall be utilized only for the purpose of calculation of amounts
payable under this Section.
2.11 Withholding Tax Exemption. At least five Business Days prior to
the first date on which interest or fees are payable hereunder for the account
of any Lender, each Lender that is not incorporated under the laws of the United
States of America, or a state thereof, agrees that
it will deliver to each of the Company and the Agent two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224, certifying in
either case that such Lender is entitled to receive payments under this
Agreement and the Notes without deduction or withholding of any United States
federal income taxes. Each Lender which so delivers a Form 1001 or 4224 further
undertakes to deliver to each of the Company and the Agent two additional copies
of such form (or a successor form) on or before the date that such form expires
(currently, three successive calendar years for Form 1001 and one calendar year
for Form 4224) or becomes obsolete or after the occurrence of any event
requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Company or the Agent, in each case certifying that such Lender
is entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with respect to it and
such Lender advises the Company and the agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax.
2.12 Servicing Fees. The Company agrees to pay to the Agent such fees
agreed to by the Company and the Agent as set forth in the letter dated June 10,
1997, from NBD Bank to ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇.
ARTICLE III
CONDITIONS PRECEDENT TO ADVANCES
3.1 Conditions for Initial Advances. The obligations of the Lenders to
restructure the Existing Indebtedness and make any Advances or issue any Letters
of Credit on the Effective Date is subject to receipt by the Agent of the
following documents and completion of the following matters, in form and
substance satisfactory to the Agent and the Required Lenders, on or prior to the
Effective Date:
(a) Charter Documents. Certificates of recent date of the appropriate
authority or official of the State of Minnesota, the Territory of the Virgin
Islands or the Kingdom of the Netherlands, as appropriate, listing all charter
documents of the Company and each other Loan Party on file in that office and
certifying as to the satisfactory status and corporate existence of the Company
and each other Loan Party, together with copies of such charter documents of the
Company and each other Loan Party certified as of a recent date by such
authority or official and certified as true and correct as of the Effective Date
by a duly authorized officer, respectively, of the Company and each other Loan
Party. Also certificates of the appropriate authority or official in Ontario and
each other jurisdiction in which the Company conducts a material portion of its
business, certifying the current authority of the Company to transact business
in such jurisdiction as a foreign corporation.
(b) Bylaws and Corporate Authorizations. Copies of the bylaws of the
Company and each other Loan Party together with all authorizing resolutions and
evidence of other corporate action taken by the Company and each other Loan
Party to authorize the execution, delivery and performance by the Company and
each other Loan Party of this Agreement and the other Loan Documents and the
consummation by the Company and each other Loan Party of the transactions
contemplated hereby, certified as true and correct as of the Effective Date by a
duly authorized officer, respectively, of the Company and each other Loan Party.
(c) Incumbency Certificate. Certificates of incumbency of the Company
and each other Loan Party containing, and attesting to the genuineness of, the
signatures of those officers authorized to act on behalf of the Company and each
other Loan Party in connection with this Agreement and the other Loan Documents
and the consummation by such person of the transactions contemplated hereby,
certified as true and correct as of the Effective Date by a duly authorized
officer, of the Company and each other Loan Party, respectively.
(d) Notes. The Notes, executed and delivered by a duly authorized
officer of the Company.
(e) Guaranties. The Guaranties in substantially the form of Exhibit
3.1(e), executed and delivered by the Guarantors.
(f) Legal Opinions. The written opinion of counsel for the Company in
the form of Exhibit 3.1(f).
(g) Consents, Approvals, Etc. Copies of all governmental and
nongovernmental consents, approvals, authorization, declarations, registrations
or filings, if any, required on the part of the Loan Parties in connection with
the execution, delivery and performance of this Agreement and the other Loan
Documents or the transactions contemplated hereby or as a condition to the
legality, validity or enforceability of this Agreement or the other Loan
Documents, certified as true and correct and in full force and effect as of the
Effective Date by a duly authorized officer of each Loan Party.
(h) Satisfaction of Legal Counsel. Satisfaction of legal counsel to the
Agent with all documents and instruments delivered hereunder or under any other
Loan Document and all proceedings related to the consummation of the
transactions contemplated by this Agreement and the other Loan Documents, and
delivery to the Agent and such legal counsel of copies (executed or certified as
may be appropriate) of all legal documents or proceedings which the Agent or
such legal counsel may reasonably request in connection with the consummation of
such transactions.
3.2 Further Conditions for Advances. The obligation of the Lenders to
make any Advance or issue any Letter of Credit is further subject to the
satisfaction of the following conditions precedent on each Funding Date:
(a) Representations True. The representations and warranties contained
in Article V of this Agreement shall be true and correct on and as of any
Funding Date where (i) a Fixed Rate Advance is advanced or extended or (ii) the
aggregate principal amount of all Advances is increased (both before and after
such Advance is made), as if such representations and warranties were made on
and as of such date.
(b) No Default. No Default or Event of Default shall exist or shall
have occurred and be continuing on such Funding Date (both before and after such
Advance is made).
(c) No Material Adverse Event. Nothing shall have occurred since
September 30, 1996 or, if later, the date of the audited financial statements
most recently delivered to the Agent and the Lenders, which the Agent or the
Required Lenders shall determine either (i) constitutes a Material Adverse Event
or (ii) has, or may have, a material adverse effect on the rights or remedies of
the Agent and the Lenders under this Agreement or any other Loan Document.
(d) Request for Advances. In the case of any Advance, the Agent shall
have timely received the request for Advance in accordance with Section 2.3, in
form and substance reasonably satisfactory to the Agent.
The Company will be deemed to have made a representation and warranty to the
Agent and the Lenders at the time of making of each Advance to the effect set
forth in clauses (a) and (b) of this Section 3.2. For purposes of this Section
3.2, the representations and warranties contained in Section 4.6 shall be deemed
made with respect to the most recent financial statements delivered pursuant to
Section 5.1(d).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and the Lenders as
follows, on the Effective Date and on each Funding Date:
4.1 Corporate Existence and Power. Each Loan Party is a corporation
duly organized, validly existing and in good standing under the laws of the
state of its corporation, and is duly qualified to do business, and is in good
standing, in all applicable jurisdictions where such qualification is necessary
under applicable law and the failure to be so qualified would constitute a
Material Adverse Event. Each Loan Party has all requisite corporate power to own
or lease the properties used in its business and to carry on its business as now
being conducted and as proposed to be conducted, and to execute and deliver this
Agreement and the other Loan Documents to which it is a party and to engage in
the transactions contemplated by this Agreement.
4.2 Corporate Authority. The execution, delivery and performance by the
Company of this Agreement and by the respective Loan Parties of the other Loan
Documents have been duly authorized by all necessary corporate action does not
require any approval or consent of, or any registration, qualification or filing
with, any Governmental Authority or consent of any other Person, does not and
will not conflict with, result in any violation of or constitute any default
under, any provision of the Articles of Incorporation or By-laws of any Loan
Party, any material agreement binding on or applicable to a Loan Party or any of
its property, and are not in contravention of any law, Governmental Regulations,
court decree or order, or By-laws, or of any contract or undertaking to which
any Loan Party is a party or by which any Loan Party or its property may be
bound or affected and have a Material Adverse Effect and do not result in the
creation or imposition of any Lien.
4.3 Binding Effect. This Agreement is, and each of the Loan Documents
when delivered hereunder will be, the legal, valid, and binding obligations of
each Loan Party, enforceable against the respective Loan Party in accordance
with their respective terms.
4.4 Subsidiaries. All Subsidiaries of the Company are listed on
Schedule 4.4, together with their jurisdiction of incorporation or formation and
the ownership of their stock or other equity interests. The Company may from
time to time submit updates to Schedule 4.4 to the Agent as appropriate to keep
this representation correct. Ag-Chem Equipment International, Inc. has
operations and assets worth no more than $10,000.
4.5 Litigation. Except as set forth in Schedule 4.5, there is no
action, suit or proceeding at law or equity, or before or by any Governmental
Authority pending or, to the best of the Company's knowledge, threatened against
or affecting any Loan Party which if adversely decided might result, either
individually or collectively, in any Material Adverse Event or in any adverse
effect on the legality, validity or enforceability of this Agreement or any
other Loan Document and, to the best of the Company's knowledge, there is no
basis for any such action, suit or proceeding; and no Loan Party in default with
respect to any final judgment, writ, injunction, decree, rule or regulation of
any Governmental Authority where the effect of such default would be a Material
Adverse Event.
4.6 Financial Condition. The financial statements listed in Schedule
4.6, copies of which have been furnished to the Lenders, fairly present, and the
financial statements delivered pursuant to Section 5.1(d) will fairly present,
the financial position of the Company and its consolidated Subsidiaries as of
the respective dates thereof, and the results of operations and cash flow of the
Company and its consolidated Subsidiaries for the respective periods indicated,
all in accordance with GAAP consistently applied (subject, in the case of
interim statements, to normal, immaterial year-end audit adjustments). There has
been no Material Adverse Event since September 30, 1996. There is no undisclosed
material Contingent Liability of any Loan Party, which if determined adversely
to the Company and its consolidated Subsidiaries, would be a Material Adverse
Event, that is not reflected in such financial statements or in the notes
thereto.
4.7 Use of Advances. The Company will use the proceeds of the Advances
for its working capital and other general corporate purposes. The Company does
not extend or maintain, in the ordinary course of business, credit for the
purpose, whether immediate, incidental, or ultimate, of buying or carrying
margin stock (within the meaning of Regulation U of the Board of Governors of
the Federal Reserve System), and no part of the proceeds of any Advance will be
used by the Company for the purpose, whether immediate, incidental, or ultimate,
of buying or carrying any such margin stock or maintaining or extending credit
to others for any such purpose which violates, or which is inconsistent with,
any regulations promulgated by the Board of Governors of the Federal Reserve
System.
4.8 Consents, Etc. No consent, approval or authorization of or
declaration, registration or filing with any Governmental Authority or any
non-governmental person, including any creditor, lessor or shareholder of the
Company, is required on the part of any Loan Party in connection with the
execution, delivery and performance of this Agreement and the other Loan
Documents or the transactions contemplated hereby or as a condition to the
legality, validity or enforceability of this Agreement and the other Loan
Documents.
4.9 Taxes. Each Loan Party has filed all tax returns (federal, state
and local) required by Governmental Regulations to be filed and have paid all
taxes required to be paid, including interest and penalties, or has established
adequate financial reserves on its books and records for payment thereof. The
Company does not know of any actual or material proposed tax assessment or any
basis therefor, has no knowledge of any objections to or claims for additional
taxes by taxing authorities for subsequent years which could be a Material
Adverse Event, and no extension of time for the assessment of deficiencies in
any federal or state tax has been granted to any Loan Party.
4.10 Title to Properties. Except as otherwise disclosed in the latest
balance sheet delivered pursuant to Section 4.6 or 5.1(d) of this Agreement,
each Loan Party has a valid and indefeasible ownership interest in all of the
properties and assets reflected in its balance sheet or subsequently acquired by
it. All of such properties and assets are free and clear of any Lien, except for
Permitted Liens.
4.11 Compliance with Governmental Regulations. Each Loan Party is in
compliance in all material respects with all Governmental Regulations (including
Environmental Laws) applicable to it or its business or properties. Without
limiting the generality of the foregoing, all Permits are in full force and
effect, no notice of any violation with a potential liability in excess of
$2,000,000 has been received in respect of any such Permits and no proceeding is
pending or, to the knowledge of the Company, threatened to terminate, revoke or
limit any such Permits.
4.12 ERISA. The Company, its ERISA Affiliates and their respective
Plans are in compliance in all material respects with those provisions of ERISA
and of the Code which are applicable with respect to any Plan. No Prohibited
Transaction or Reportable Event has occurred with respect to any such Plan.
Neither the Company nor any of its ERISA Affiliates are an employer with respect
to any Multiemployer Plan. Neither the Company nor any of its ERISA
Affiliates has established, maintained or contributed to any Multiemployer Plan
during the five (5) year period preceding the date of this Agreement. Neither
the Company nor any of its ERISA Affiliates have taken any action or failed to
take any action which, nor are there any other circumstances or events relating
to any Multiemployer Plan the occurrence of which, would result in the
imposition on the Company or any of its ERISA Affiliates of "withdrawal
liability" within the meaning of Section 4201 of ERISA. The Company and its
ERISA Affiliates have met the minimum funding requirements under ERISA and the
Code with respect to each of their respective Plans, if any, and have not
incurred any liability to the PBGC or any Plan; nor has the Company or its ERISA
Affiliates engaged in a transaction which would subject it to tax, penalty, or
liability for prohibited transactions imposed by ERISA or the Code. The
execution, delivery and performance of this Agreement and the other Loan
Documents does not constitute a Prohibited Transaction.
4.13 Environmental and Safety Matters. Except as disclosed in Schedule
4.13:
(a) Compliance. Each Loan Party is in compliance with all Environmental
Laws in jurisdictions in which it owns or operates, or has owned or operated, a
facility or site, or arranges or has arranged for disposal or treatment of
Hazardous Materials, accepts or has accepted for transport any Hazardous
Materials or holds or has held any interest in property, including the Company's
property, except where any non-compliance, individually or in the aggregate,
reasonably would not be expected to result in a Material Adverse Event.
(b) No Notices. No claim or demand, whether brought by any Governmental
Authority, private person or otherwise, arising under, relating to or in
connection with any Environmental Laws is pending or, to the best of the
Company's knowledge, threatened against any Loan Party, any property or any past
or present operation of any Loan Party which could result in a Material Adverse
Event.
(c) Knowledge. The Company is not aware of any existing violation or
non-compliance of Environmental Laws at or about any property of a Loan Party,
and the Company does not have any knowledge of any actions commenced or
threatened by any party for or related to or arising out of non-compliance with
Environmental Laws which apply to any property, activities at any property or
Hazardous Materials at, from or affecting any property of a Loan Party and which
reasonably would be expected to result in a Material Adverse Event or a
liability in excess of $5,000,000. The Company is not aware that it is the
subject of any Governmental Authority investigation evaluating whether any
remedial action is needed to respond to a release of any Hazardous Materials in
the environment, and has not received any notice of any Hazardous Materials, or
upon any of its properties, in violation of any Environmental Laws which, in
either event, reasonably would be expected to result in a Material Adverse Event
or a liability in excess of $5,000,000. No property of the Company, and to the
best of the Company's knowledge, no property of any Loan Party, appears on the
National Priority List (as defined under federal law) or any state listing which
identifies sites for remedial clean-up or investigatory actions. To the best of
the Company's knowledge, none of the property has been contaminated with
substances which give rise to a clean-up obligation under any
Environmental Law or common law, which in the aggregate are reasonably expected
to cost the Loan Parties in excess of $5,000,000.
(d) Release. No release, threatened release or disposal of Hazardous
Materials is occurring or has occurred on, under or to any property, in which
any Loan Party holds any interest or performs any of its operations, in
violation of any Environmental Laws which reasonably could be expected to result
in a Material Adverse Event or a liability in excess of $5,000,000.
4.14 Investment Company Act; Unregistered Securities. The Company is
not an "investment company," or "principal underwriter," or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
4.15 Public Utility Holding Company. The Company is not a "holding
company" or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
4.16 Disclosure. No report or other information furnished in writing by
or on behalf of the Agent or any Lender in connection with the negotiation or
administration of this Agreement contains any material misstatement of fact or
omits to state any material fact or any fact necessary to make the statements
contained therein not misleading. Neither this Agreement, the other Loan
Documents, nor any other document, certificate, or report or statement or other
information furnished the Agent or any Lender by or on behalf of any Loan Party
in connection with the transactions contemplated hereby, including any Advances
made hereunder, contains any untrue statement of a material fact or omits to
state a material fact in order to make the statements contained herein and
therein not misleading. There is no fact known to the Company which materially
and adversely affects, or which in the future could be expected to materially
and adversely affect, the business, properties, operations, condition, financial
or otherwise, or prospects of any Loan Party, which has not been set forth in
this Agreement or in the other documents, certificates, statements, reports and
other information furnished in writing to the Agent by or on behalf of any Loan
Party in connection with the transactions contemplated hereby.
ARTICLE V
COVENANTS
5.1 Affirmative Covenants. The Company covenants and agrees that, until
the Termination Date and thereafter until payment in full of the principal of
and accrued interest on the Notes and the payment or performance of all other
Obligations, and unless the Required Lenders otherwise consent in writing, the
Company will, and will cause each Loan Party to:
(a) Preservation of Corporate Existence, Etc. Do or cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence, and its qualification as a foreign corporation in good standing
in each jurisdiction in which such qualification is necessary under applicable
Governmental Regulations and where the failure to be so qualified reasonably
could be expected to constitute a Material Adverse Event, and the Permits
(including those required under Environmental Laws), and intellectual property
material to the conduct of its businesses; and defend all of the foregoing
against all claims by or before any Governmental Authority.
(b) Compliance with Laws, Etc. Comply in all material respects with all
applicable Governmental Regulations (including ERISA, the Code and Environmental
Laws) in effect from time to time; and pay and discharge promptly when due all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income, revenues or property, before the same will become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise, which, if unpaid, might give rise to any Lien upon such properties or
any portion thereof, except to the extent that payment of any of the foregoing
is then being contested in good faith by appropriate legal proceedings and with
respect to which adequate financial reserves have been established on the books
and records of the Company.
(c) Maintenance of Properties; Insurance. Maintain, preserve and
protect all property that is material to the conduct of its business and keep
such property in good repair, working order and condition and from time to time
make, or cause to be made all needed and proper repairs, renewals, additions,
improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times in
accordance with customary and prudent business practices for similar businesses;
and maintain in full force and effect insurance with responsible and reputable
insurance companies or associations in such amounts, on such terms and covering
such risks, including fire and other risks insured against by extended coverage,
as is usually carried by companies engaged in similar businesses and owning
similar properties similarly situated and maintain in full force and effect
public liability insurance, insurance against claims for personal injury or
death or property damage occurring in connection with any of its activities or
any of any properties owned, occupied or controlled by it, in such amounts as it
reasonably will deem necessary, and maintain such other insurance as may be
required by Governmental Regulations or as reasonably may be requested by the
Agent for purposes of assuring compliance with this Section 5.1(c).
(d) Reporting Requirements. Furnish to the Agent and each Lender the
following:
(i) promptly and in any event within three Business Days after
becoming aware of the occurrence of (A) any Default or Event of
Default, (B) the commencement of any material litigation or
Governmental Authority investigation against, by or affecting a Loan
Party or any of its properties or business operations in which the
damages claimed could exceed $2,000,000 or which is otherwise material
(other than litigation where insurance insures against the damages
claimed and the insurer has assumed defense of the litigation), and any
material developments therein, or (C) any development in the business
or affairs of any Loan Party which has resulted
in or which is likely, in the reasonable judgment of the Company, to
result in a Material Adverse Event, a statement of the Chief Financial
Officer of the Company setting forth details of such Default or Event
of Default or such event or condition or such litigation and the action
which the affected person has taken and proposes to take with respect
thereto;
(ii) as soon as available and in any event within 45 days
after the end of each fiscal quarter of the Company, the unaudited
financial statements of the Company and its consolidated Subsidiaries,
consisting of a balance sheet as of the close of such period and
related statement of earnings for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter on a
consolidated and consolidating basis, setting forth in each case in
comparative form the corresponding figures for the corresponding date
or period of the preceding fiscal year, all in reasonable detail and
duly certified (subject to normal, immaterial year-end audit
adjustments) by the Chief Financial Officer of the Company as having
been prepared in accordance with GAAP, together with a certificate of
the Chief Financial Officer of the Company stating that (A) no Default
or Event of Default has occurred and is continuing or, if any Default
or Event of Default has occurred and is continuing, a statement setting
forth the details thereof and the action which the applicable person
has taken and proposes to take with respect thereto, and (B) a
computation (which computation will accompany such certificate and will
be in reasonable detail) showing compliance with Sections 5.2(a), (b)
and (c) in conformity with the terms of this Agreement. The financial
statements described in Section 5.1(d)(ii) will be accompanied by a
certificate signed by the Company's Chief Financial Officer stating
that, to the best of his or her knowledge, such unaudited financial
statements fairly present the Company's financial position as of the
date and for the period covered subject, however, to year-end
adjustments which, in the aggregate, are not materially adverse and are
not likely to result in a Material Adverse Event.
(iii) as soon as available and in any event within 90 days
after the end of each fiscal year of the Company, a copy of the audited
balance sheet of the Company and its consolidated Subsidiaries and the
related statements of operations, stockholder's equity and cash flow,
for such fiscal year on a consolidated or consolidating basis, with a
customary audit report of independent certified public accountants
selected by the Company and acceptable to the Agent, without
qualifications unacceptable to the Agent, together with a certificate
of the Chief Financial Officer of the Company stating that (A) no
Default or Event of Default has occurred or is continuing, or if any
Default or Event of Default has occurred and is continuing, a statement
setting forth the details thereof and the action which the applicable
person has taken and proposes to take with respect thereto, and (B) a
computation (which computation will accompany such certificate and will
be in reasonable detail) showing compliance with Sections 5.2(a) and
(b), (c) in conformity with the terms of this Agreement;
(iv) promptly after receipt thereof by the Company, copies of
any audit or management reports submitted to it by independent
accountants in connection with any audit, interim audit or other report
submitted to the board of directors (or other governing body) of the
Company;
(v) promptly after the same are available, copies of each
annual report, proxy or financial statement or other communication sent
to the Company's stockholders and copies of all annual, regular,
periodic and special reports and registration statements which the
Company may file or be required to file with the Securities and
Exchange Commission or with any securities exchange or the National
Association of Securities Dealers, Inc.; and,
(vi) promptly, such other information respecting the business,
properties, operations or condition, financial or otherwise, of the
Company or any of its Subsidiaries as the Agent or any Lender from time
to time reasonably may request.
(e) Accounting; Access to Records, Books, Etc. Maintain a system of
accounting established and administered in accordance with sound business
practices to permit preparation of financial statements in accordance with GAAP
and to comply with the requirements of this Agreement and, at any reasonable
time and from time to time, (i) permit the Agent, the Lenders or any agents or
representatives thereof to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, any Loan Party and
to discuss the affairs, finances and accounts of such person with their
respective directors, officers, employees and independent auditors, and by this
provision the Company does hereby authorize the same and (ii) permit the Agent
or any of its agents or representatives to conduct a comprehensive field audit
of its books, records, properties and assets. The Agent and the Lenders agree
that they will endeavor to provide prior written notice of any such visit or
audit, provided, however, the failure to give such notice will not affect the
rights of the Agent and the Lenders under this Section 5.1(e).
(f) Compliance with Environmental Laws; Hold Harmless and
Indemnification. Timely comply with all applicable Environmental Laws, except
where any such noncompliance, individually or in the aggregate, reasonably would
not be expected to result in a Material Adverse Event. The Company hereby agrees
to indemnify and hold the Agent and the Lenders harmless from and against any
and all claims, and all costs and expenses incurred in connection herewith
(including attorney's fees and expenses), caused directly or indirectly, in
whole or in part, by (i) the presence on or under any of the Company's or other
Loan Party's properties, of any Hazardous Materials, or any releases or
discharges of any Hazardous Materials on, under or from, or (ii) any activity
carried on or undertaken on or off any property, whether prior to the Effective
Date or whether by a Loan Party or any predecessor entity, or any employees,
agents, contractors or subcontractors of a Loan Party or any predecessor entity,
or any third persons at any time present on any property, in connection with the
handling, treatment, removal, storage, decontamination, clean-up, transport or
disposal of any Hazardous Materials at any time located or present on or under
any property.
(g) Further Assurances. Execute and deliver promptly after request
therefor by the Agent, all documents, and instruments and take all further
action that may be necessary or desirable, or that the Agent may request, in
order to give effect to, and to aid in the exercise and enforcement of the
rights and remedies of the Agent and the Lenders under this Agreement and the
other Loan Documents.
5.2 Negative Covenants. Until the Termination Date and thereafter until
payment in full of the principal of and accrued interest on the Notes and the
payment and performance of all other Obligations, and unless the Required
Lenders otherwise consent in writing, the Company will not and will not permit
any Loan Party to:
(a) Tangible Net Worth. Permit or suffer Tangible Net Worth to be, at
any time after the Effective Date, less than the sum of (i) $47,500,000, plus
(ii) the net amount of any proceeds from the sale of the Company's equity
interests received by the Company after the Effective Date, plus (iii) fifty
percent (50%) of annual Net Income accumulated from September 30, 1996,
beginning with the calculation for the year ending September 30, 1997; provided,
however, that no deduction will be made for any period where net income is less
than zero and any loss will not reduce any amount added for any other period.
(b) Total Liabilities to Tangible Net Worth. Permit or suffer the ratio
of Total Liabilities to Tangible Net Worth to exceed (i) 2.75 to 1.0 at the end
of each fiscal quarter ending on June 30 or September 30, and (ii) 3.25 to 1.00
at the end of each fiscal quarter ending on December 31 or March 31.
(c) Interest Coverage Ratio. Permit or suffer the Interest Coverage
Ratio to be less than 3.0 to 1.0 at any time after the Effective Date.
(d) Indebtedness. Create, incur, assume or in any manner become liable
in respect of, or suffer to exist, any Indebtedness other than:
(i) the Advances and indebtedness under the Short Term Credit
Agreement (and any guaranties thereof);
(ii) Indebtedness to persons (including guaranties of
Indebtedness) other than the Lenders under this Agreement, as described
on Schedule 5.2(d), having the same material terms as those existing on
the date of this Agreement, and provided, that (i) with respect to the
indebtedness outstanding to Connecticut Mutual and Prudential
Insurance, any extension renewal or replacement thereof (including by a
different person) not to exceed the original principal amount of such
loan, on an unsecured basis and at the then prevailing market terms,
and (ii) with respect to any other indebtedness described on Schedule
5.2(d), any extension or renewal thereof (but without increase in the
principal amount outstanding at the time of such extension or renewal);
(iii) Indebtedness secured by Permitted Liens;
(iv) Indebtedness of up to $1,000,000 from state or local
governmental authorities or sub-divisions thereof or local development
authorities, provided that so long as any Default or Event of Default
shall exist and be continuing, such indebtedness may not be increased
above the amount existing at the time of such Default or Event of
Default;
(v) Subordinated Debt which is acceptable to the Required
Lenders in their sole discretion, including the terms of the
subordination agreement covering the Subordinated Debt;
(vi) guaranties of Indebtedness which in the aggregate do not
exceed $1,000,000 at any time or other indebtedness not to exceed
$500,000 at any time (to the extent such guaranties or indebtedness is
not permitted under clause (ii) above); provided that so long as any
Default or Event of Default shall exist and be continuing, such
guaranties may not be increased from the guaranties existing at the
time of such Default or Event of Default; and
(vii) Indebtedness of one Loan Party to another Loan Party.
(e) Liens. Create, incur or suffer to exist any Lien on any of the
assets, rights, revenues or property, real, personal or mixed, tangible or
intangible, whether now owned or hereafter acquired, of any Loan Party other
than:
(i) Liens for taxes not delinquent or for taxes being
contested in good faith by appropriate proceedings and as to which
adequate financial reserves have been established on its books and
records;
(ii) Liens (other than any Lien imposed by ERISA) created and
maintained in the ordinary course of business which are not material in
the aggregate, and which would not constitute or result in a Material
Adverse Event, and which constitute (A) pledges or deposits under
worker's compensation laws, unemployment insurance laws or similar
legislation, (B) good faith deposits in connection with bids, tenders,
contracts or leases to which a Loan Party is a party for a purpose
other than borrowing money or obtaining credit, including rent security
deposits, (C) Liens imposed by law, such as those of carriers,
warehousemen and mechanics, if payment of the obligation secured
thereby is not yet due, (D) Liens securing taxes, assessments or other
governmental charges or levies not yet subject to penalties for
nonpayment, and (E) pledges or deposits to secure public or statutory
obligations of such Loan Party, or surety, customs or appeal bonds to
which such Loan Party is a party;
(iii) Liens affecting real property which constitute minor
survey exceptions or defects or irregularities in title, minor
encumbrances, easements or reservations of, or rights of others for,
rights of way, sewers, electric lines, telegraph and telephone lines
and other similar purposes, or zoning or other restrictions as to the
use of such real property; provided, however, that all of the
foregoing, in the aggregate, do not at any time materially detract from
the value of said properties or materially impair their use in the
operation of the businesses of any Loan Party;
(iv) each Lien described in Schedule 5.2(e) which may be
suffered to exist upon the same terms as those existing on the date
hereof, and any extension or renewal thereof (but without increase in
the principal amount secured thereby outstanding at the time of such
extension or renewal and provided such Liens will not extend to cover
any additional property); and
(v) purchase money Liens upon or in property of a Loan Party,
provided, however, that no such Lien will extend to or cover any other
property of any Loan Party and the amount of any such Lien will not
exceed the purchase price of the related collateral.
(f) Merger; Purchase of Assets; Acquisitions; Etc. Purchase or
otherwise acquire, whether in one or a series of transactions, all or a
substantial portion of the business, assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, of any person, or all or a
substantial portion of the capital stock of or other ownership interest in any
other person nor merge or consolidate or amalgamate with any other person or
take any other action having a similar effect, nor enter into any joint venture
or similar arrangement with any other person; provided, that this Section 5.2(f)
will not prohibit any merger or consolidation solely between or among the
Company and any Subsidiary, so long as the Company is the surviving person of
such merger or consolidation.
(g) Disposition of Assets; Etc. Sell, lease, license, transfer, assign
or otherwise dispose of any of its business, assets, rights, revenues or
property, real, personal or mixed, tangible or intangible, whether in one or a
series of transactions, other than (i) inventory sold in the ordinary course of
business upon customary credit terms and sales of obsolete or damaged material
or equipment, (ii) the sale of all or part of Ag-Chem Equipment Co International
Corp, a Virgin Islands corporation, (iii) transfers from one Loan Party to
another Loan Party, and (iv) other sales of assets not to exceed $3,000,000 in
the aggregate for all Loan Parties during any fiscal year of the Company;
provided that so long as any Default or Event of Default shall exist and be
continuing, no sales under clauses (ii) or (iii) above may be made beyond those
contracted for at the time of such Default or Event of Default.
(h) Fiscal Year. Change its fiscal year end from September 30.
(i) Investments. Make, commit to make or permit to exist any loans,
investments, advances or extensions of credit to any person, firm or
corporation, other than: (i) Cash Equivalents, (ii) loans not to exceed $500,000
at any time outstanding and travel advances extended to officers and employees
of a Loan Party in the ordinary course of business, (iii) investments existing
on the Effective Date in Subsidiaries that are not Loan Parties, (iv)
investments by the Company in other Loan Parties, (v) loans from one Loan Party
to another Loan Party, or (vi) other investments which in the aggregate do not
exceed $1,000,000 at any time after the Effective Date.
(j) Capital Expenditures. Make Capital Expenditures on an aggregate
basis for all Loan Parties during any fiscal year of the Company in excess of
$20,000,000.
(k) Transactions with Affiliates. Enter into, or permit or suffer to
exist, or be a party to, any transaction or arrangement, including the purchase,
sale, exchange or use of any property or asset, or any interest therein, whether
real, personal or mixed, or tangible or intangible, or the rendering of any
service, with any Affiliate that is not a Loan Party or any director or officer
of any Loan Party, except in the ordinary course of and pursuant to the
reasonable requirements of
the Loan Party's business and upon fair and reasonable terms which are no less
favorable to such Loan Party than could be obtained in a comparable arms-length
transaction with a person not an Affiliate or a director or officer of the Loan
Party. The Company will not permit Ag-Chem Equipment International to have any
operations or assets with a value in excess of $10,000.
(l) Dividends. Declare or pay dividends or make other stockholder
distributions or redemptions of its capital stock, or commit to make any
distribution of cash or property to its shareholders at any time after the
Effective Date; provided, however,that so long as no Default or Event of Default
has occurred and is continuing and no Default or Event of Default would occur
upon payment of such amounts, (i) the Company may pay cash dividends or
dividends paid solely in shares of the Company, and (ii) the Company may
repurchase or redeem shares of its capital stock for an amount not to exceed
$1,000,000 per fiscal year.
ARTICLE VI
DEFAULT
6.1 Events of Default. The occurrence of any one of the following
events or conditions shall be deemed an "Event of Default" hereunder unless
waived by the Lenders or the Required Lenders, as applicable pursuant to Section
8.1:
(a) Nonpayment. The Company shall fail to pay (i) when due (whether by
mandatory prepayment or otherwise) the outstanding principal balance of the
Notes, or (ii) more than five days after the due date, any interest on the
Notes, any fees due the Agent or any Lender or any other Obligations payable
hereunder, or (iii) any principal amount under the Short Term Credit Agreement
when due, or any interest, fees or other Obligations due the Agent or the Lender
under the Short Term Credit Agreement more than five days after the due date.
(b) Misrepresentation. Any representation or warranty made by the
Company or any Loan Party in Article IV or in any other Loan Document or in any
certificate, report, financial statement or other document furnished by or on
behalf of the Company or any Loan Party in connection with this Agreement or the
Loan Documents shall prove to have been incorrect in any material respect when
made or deemed made.
(c) Certain Covenants. Any term, covenant or agreement contained in
Section 5.2 shall be breached and such breach shall not have been cured.
(d) Other Defaults. Any term, covenant or agreement contained in this
Agreement (other than those defaults described in other subsections of this
Section 6.1) or any other Loan Document shall be breached, and any such breach
shall remain unremedied for 30 calendar days after the Company or any Subsidiary
becomes aware thereof, or there exists and is continuing an Event of Default
under the Short Term Credit Agreement.
(e) Cross Default. The Company or any Loan Party fails to pay any part
of the principal of, the premium, if any, or the interest on, or any other
payment of money due under,
any of its Indebtedness (other than Indebtedness under this Agreement, including
the Notes and the Obligations of the Company), after expiration of any
applicable period of grace provided with respect thereto, which individually, or
together with other such Indebtedness as to which any such failure exists, has
an aggregate outstanding principal amount in excess of $5,000,000; or the
Company or any Loan Party fails to perform or observe any other term, covenant
or agreement contained in any agreement, document or instrument evidencing or
securing any such Indebtedness having such aggregate outstanding principal
amount, or under which any such Indebtedness was issued or created, and such
failure has not been waived by such third party, and after expiration of any
applicable period of grace, if any, provided with respect thereto if the effect
of such failure is either (i) to cause, or permit the holders of such
Indebtedness (or a trustee on behalf of such holders) to cause, any payment in
respect of such Indebtedness to become due prior to its due date or (ii) to
permit the holders of such Indebtedness (or a trustee on behalf of such holders)
to elect a majority of the board of directors of the Company.
(f) Judgments. One or more judgments, judicial or administrative orders
or arbitration award for the payment of money in an aggregate amount of
$5,000,000 or more which is not covered by insurance shall be rendered against
the Company or any other Loan Party, or any other judgment, judicial or
administrative order or arbitration award (whether or not for the payment of
money) shall be rendered against or shall affect the Company or any other Loan
Party which causes or could reasonably be expected to cause a Material Adverse
Event, and either (i) such judgment or order shall have remained unsatisfied and
the Company or the Loan Party shall not have taken action necessary to stay
enforcement thereof by reason of pending appeal or otherwise, prior to the
expiration of the applicable period of limitations for taking such action, or,
if such action shall have been taken, a final order denying such stay shall have
been rendered and such judgment or order shall remain unsatisfied for 15 days
thereafter, or (ii) enforcement proceedings shall have been commenced by any
creditor upon any such judgment or order.
(g) ERISA. The occurrence of a Reportable Event that results in
liability of the Company or any of its ERISA Affiliates to the PBGC or to any
Plan in excess of $5,000,000 which results or could reasonably be expected to
result in a Material Adverse Event and such Reportable Event is not corrected
within 30 days after notice to any Loan Party the occurrence thereof; or the
occurrence of any Reportable Event which constitutes grounds for termination of
any Plan of the Company or any of its ERISA Affiliates by the PBGC or for the
appointment by the appropriate United States District Court of a trustee to
administer any such Plan and such Reportable Event is not corrected within 30
days after the occurrence thereof; or the filing by the Company or any of its
ERISA Affiliates of a notice of intent to terminate a Plan or the institution of
other proceedings to terminate a Plan which termination would or could
reasonably be expected to result in a Material Adverse Event; or the Company or
any of its ERISA Affiliates shall fail to pay when due any liability in excess
of $5,000,000 to the PBGC or to a Plan and such failure is not corrected within
30 days after notice to any Loan Party thereof, or the PBGC shall have
instituted proceedings to terminate, or to cause a trustee to be appointed to
administer, any Plan of the Company or any of its ERISA Affiliates; or any
person engages in a Prohibited Transaction with respect to any Plan which
results in liability in excess of $5,000,000 of the Company or any of its ERISA
Affiliates, any Plan of the Company or any of its ERISA Affiliates
or any fiduciary of any such Plan; or failure by the Company or any of its ERISA
Affiliates to make a required installment or other payment to any Plan within
the meaning of Section 302(f) of ERISA or Section 412(n) of the Code that
results in liability in excess of $5,000,000 of the Company or any of its ERISA
Affiliates to the PBGC or any Plan and such failure is not corrected within 30
days after notice to any Loan Party thereof; or the withdrawal of the Company or
any of its ERISA Affiliates from a Plan during a plan year in which it was a
"substantial employer" as defined in Section 4001(a)(2) of ERISA which results
or could reasonably be expected to result in a Material Adverse Event; or the
occurrence of events or circumstances, including action taken or omitted to be
taken by the Company or any of its ERISA Affiliates, with regard to a
Multiemployer Plan which results or could reasonably be expected to result in
the imposition to the Company or any of its ERISA Affiliates of "withdrawal
liability" within the meaning of Section 4201 of ERISA and such imposition of
withdrawal liability would or could reasonably be expected to result in a
Material Adverse Event.
(h) Insolvency, Etc. Any Loan Party: shall be dissolved or liquidated
(other than a dissolution or liquidation of Ag-Chem Equipment Co International
Corp, a Virgin Islands corporation) or any judgment, order or decree therefor
shall be entered; or shall generally not pay its debts as they become due; or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or shall institute, or there
shall be instituted against any Loan Party any proceeding or case seeking to
adjudicate it as bankrupt or insolvent or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief or protection of debtors or seeking the entry of an order for relief,
or the appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its assets, rights, revenues or property,
and, if such a proceeding is instituted against any Loan Party and is being
contested by such person in good faith by appropriate proceedings, such
proceeding shall remain undismissed or unstayed for a period of 120 days; or
shall take any action (corporate or other) to authorize or further any of the
actions described above in this subsection.
(i) Change of Control. The Company shall cease to own 100% of the
capital stock of the Guarantors (to the extent a Guarantor's existence has not
ceased) or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, members of his immediate family and trusts for the
benefit of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or members of his immediate family shall cease to
own, in the aggregate beneficially and of record, at least 40% of the
outstanding capital stock of the Company.
(j) Enforceability of Loan Documents. This Agreement or any of the
other Loan Documents shall, at any time after their respective execution and
delivery, and for any reason, the validity or enforceability thereof or hereof
shall be contested by any Loan Party, any or any stockholder of the Company,
shall deny that it has any or further liability or obligation thereunder or
hereunder, as the case may be.
6.2 Remedies.
(a) Termination of Commitment; Acceleration. Upon the occurrence and
during the continuance of any Event of Default, the Agent may, and upon the
direction of the Required Lenders will, by notice to the Company terminate the
Commitments or declare the outstanding principal of, and accrued interest on,
the Notes and all other Obligations to be immediately due and payable, or both;
whereupon the obligations of the Agent and Lenders to make Advances and issue
Letters of Credit shall immediately terminate and all such amounts shall become
immediately due and payable, or both; provided, however, that, upon the
occurrence of any event or condition described in Section 6.1(h), the
obligations of the Agent and Lenders to make Advances and issue Letters of
Credit shall automatically terminate forthwith and all such amounts shall
automatically become immediately due and payable without notice; in all cases
without demand, presentment, protest, diligence, notice of dishonor or other
formality, all of which are hereby expressly waived.
(b) Other Remedies. Upon (x) the occurrence and during the continuance
of any Event of Default, the Agent may, and upon the direction of the Required
Lenders will, and (y) upon the termination of the Commitments and acceleration
of the Obligations any Lender may, exercise and enforce any and all other rights
and remedies available to them, whether arising under this Agreement or any
other Loan Document or under applicable law, in any manner deemed appropriate by
the Agent or such Lender, including suit in equity, action at law, or other
appropriate proceedings, whether for specific performance (to the extent
permitted by law) of any covenant or agreement contained in this Agreement or in
any other Loan Document or in aid of the exercise of any power granted in this
Agreement or any other Loan Document or under applicable law. All monies
received by the Agent or any Lender from the exercise of any of such rights or
remedies shall, unless otherwise required by applicable law, be applied as
follows:
(i) first, to the payment of all expenses (to the extent not
paid by the Company) incurred by the Agent or any Lender in connection
with the exercise of such rights or remedies, including all costs and
expenses of collection, reasonable attorneys' fees and court costs, all
costs incurred by the Agent or any Lender directly or indirectly in
carrying out the terms, covenants and agreements of the Company
contained in this Agreement or any of the other Loan Documents,
together with interest thereon as provided herein, and all other costs
and expenses described in Section 8.5;
(ii) next, to the payment of any outstanding fees due under
Sections 2.1(d) and 2.4(e);
(iii) next, to the payment of interest then accrued and unpaid
on the Notes;
(iv) next, to the payment of the principal balance then owing
on the Notes;
(v) next, to all of the other Obligations; and
(vi) surplus, if any, unless a court of competent jurisdiction
decrees otherwise, to the Company.
(c) Cash Cover. The Company hereby agrees, in addition to the other
provisions of this Section 6.2, that upon the occurrence and during the
continuance of any Event of Default, it shall, if requested by the Agent or the
Required Lenders, pay (and, in the case of any Event of Default specified in
Section 6.1(h) forthwith, without any demand or the taking of any other action
by the Agent or the Lenders, it shall pay) to the Agent an amount in immediately
available funds (which funds shall be held as collateral) equal to the then
aggregate amount available for draw under all Letters of Credit outstanding at
the time.
ARTICLE VII
THE AGENT
The Lenders and the Agent agree among themselves, and the Company
hereby consents, as follows:
7.1 Appointment, Powers and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Agent to act as its agent hereunder and under the
other Loan Documents with such powers as are specifically delegated to the Agent
by the terms of this Agreement or the other Loan Documents, together with such
other powers as are reasonably incidental thereto. The Agent is expressly
authorized as agent to enforce, on behalf of the Lenders, all rights and
remedies available to it or the Lenders under this Agreement, any other Loan
Document or applicable law. The Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and under the other Loan
Documents, and shall not by reason of this Agreement or any other Loan Document
be trustee for, or otherwise have a fiduciary relationship in respect of, any
Lender. The Agent shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Agreement, or in any
certificate or other document referred to or provided for in, or received by any
of them under, this Agreement or any other Loan Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure by any Loan Party to
perform any of its obligations hereunder or under any other Loan Document. The
Agent may employ agents and attorneys-in-fact and shall not be answerable,
except as to money or securities received by it or its authorized agents, for
the gross negligence or willful misconduct of any such agents or
attorneys-in-fact selected by the Agent with reasonable care. Neither the Agent
nor any of its Affiliates, directors, officers, employees, attorneys or agents
shall be liable or responsible for any action taken or omitted to be taken by
them hereunder or in connection herewith, except for their own gross negligence
or willful misconduct.
7.2 Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by
telephone, telex, telecopy, telegram or cable) believed by it to be genuine and
correct and to have been signed or sent by or on behalf of the proper person or
persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by it. As to any matters not expressly
provided for by
this Agreement or any other Loan Document, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Lenders or the Required Lenders, as the case may be.
7.3 Rights as a Lender. With respect to its Commitment and Notes, the
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 an Agent. Unless otherwise prohibited under this Agreement, the
Agent and its Affiliates may (without having to account therefor to any Lender)
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with, the Company or any of its Affiliates as if it were
not acting as an agent and an Agent may accept fees and other consideration from
the Company or any of its Affiliates for services in connection with this
Agreement, any other Loan Document or otherwise without having to account for
the same to the Lenders (except as to the payment of the commitment fees or
other consideration as expressly provided in this Agreement).
7.4 Indemnification. The Lenders agree to indemnify the Agent, the
Canadian Lender and the London Agent (to the extent not reimbursed by the
Company under Section 8.5), ratably in accordance with each Lender's Percentage,
for any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever (including reasonable attorneys' fees) which may be imposed on,
incurred by or asserted against the Agent, the Canadian Lender or the London
Agent in any way relating to or arising out of its duties under this Agreement
or any other Loan Document or the transactions contemplated hereby (including
the costs and expenses which the Company is are obligated to pay under Sections
8.5) or the enforcement of any of the terms hereof or of any such other
documents, or pursuant to any other instructions approved by the Lenders, or the
Required Lenders, as the case may be; provided that no Lender shall be liable
for any of the foregoing to the extent they arise from the gross negligence or
willful misconduct of such agent.
7.5 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 Company 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 this Agreement and the other Loan Documents. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Agent under Section 7.6(b), 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 the
Company or any other Loan Party or any other person which may come into its
possession.
7.6 Duties of Agent.
(a) General. In carrying out the agency under this Agreement and the
other Loan Documents, the Agent and the other Advancing Agents shall have only
the duties and responsibilities specifically set forth in this Agreement and, in
performing such duties and responsibilities, the Agent and the other Advancing
Agents shall exercise the same degree of care as they would if the Advances were
entirely for its own account, but, unless the Agent has actual knowledge
thereof, the Agent shall not be deemed to have knowledge of the occurrence of
any Event of Default or any Default, and need not take or continue any action
with respect thereto or towards the enforcement of this Agreement, the Notes or
the other Loan Documents, nor prosecute or defend any suit with respect to this
Agreement, the Notes or the other Loan Documents unless directed to do so by the
Required Lenders and unless it is indemnified to its satisfaction against any
loss, cost, liability or expense which it might incur as a consequence of taking
such action.
(b) Notices. The Agent shall provide the following notices or other
information to the Lenders: (i) notices of requests for Advances received from
the Company which shall be given by the Agent to each Lender no later than one
half hour after the deadline for the Type of Advance has lapsed, on the Business
Day such notice is received by the Agent (provided such notice is received by
the Agent by such deadline specified in Section 2.2 (b) above); (ii) notices of
any requests by the Company for consents, waivers or amendments under this
Agreement or any of the other Loan Documents, promptly after receipt thereof by
the Agent from the Company; (iii) summary of the results of each audit or any
comprehensive field audit conducted by the Agent and, if so requested by any
Lender, access to the complete audits, promptly after completion thereof by the
Agent; (iv) copies of any financial statements furnished by the Company to the
Agent and not otherwise furnished to the Lenders hereunder, promptly after
receipt by such Agent; and (v) notice of the occurrence of a Default or an Event
of Default, promptly after the Agent receives notice thereof from the Company or
a Lender or otherwise has actual knowledge thereof. In connection with the
foregoing, the Agent shall be entitled to assume that the Company has given to
the Lenders all notices, financial statements and other information required to
be furnished by the Company to the Lenders under this Agreement or any other
Loan Document and shall not be required to duplicate such notices, financial
statements or other information (x) other than notices of a Default or Event of
Default and any request for a waiver or amendment of any negative covenant
hereunder, and (y) unless the Agent has received notice from a Lender that the
Company have failed to deliver specified items to such Lender. Notwithstanding
anything in this Section 7.6(b) to the contrary, the Agent shall not have any
liability to the Lenders for failure to provide any notices or other information
as specified above, other than due to gross negligence or willful misconduct.
7.7 Successor Agent. The Agent and the other Advancing Agents may
resign at any time by giving written notice thereof to the Lenders and the
Company. Upon any such resignation, the Required Lenders shall, have the right
to appoint a successor Agent (or Advancing Agent, as applicable); provided,
however, that so long as an Event of Default shall not have occurred and be
continuing, upon any such resignation, the Company shall, with the
consent of the Required Lenders (which consent shall not be unreasonably
withheld), have the right to appoint any Lender as a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders or the
Company, as the case may be, 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 may be (i) any Lender, or (ii) any other commercial bank organized
under the laws of the United States of America or of any State thereof and
having a combined capital and surplus of at least $500,000,000 (or any affiliate
thereof qualified to fulfill the obligations of the Canadian Lender or the
London Agent, as applicable). Upon the acceptance of its appointment as an agent
hereunder by a successor agent, such successor agent shall thereupon succeed to
and become vested with all the rights 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 shall inure to its benefits as to any actions taken or omitted to
be taken by it while it was an agent.
7.8 Nature of Advances. Each Lender represents and warrants to the
Company, the Agent and the other Lenders that the Advances and the Notes to be
delivered to it hereunder will evidence loans made in the ordinary course of its
commercial banking business and will be acquired for itself for investment and
not with a view to any distribution thereof, subject, nevertheless, to the
disposition of its property being at all times within its control. The Agent may
for all purposes treat the Lender to which any Note is issued as the holder of
such Note unless the Agent shall have been notified in writing by such Lender of
its sale or disposition of such Note and the name and address of the new holder.
7.9 Default Interest. If either the Agent or any of the Lenders shall
fail to pay any amounts required to be paid by it (the party so failing to make
payment is referred to in this Section 7.9 as the "Defaulting Party") to another
Lender or to the Agent (the party entitled to receive such amount is referred to
in this Section 7.9 as the "Payee") under this Agreement when due or within ten
days after demand for payment has been made by Payee, then the Defaulting Party
shall pay to Payee interest on the amount not so paid when due, at a per annum
rate equal to the Federal Funds Rate plus three percent (3%) per annum, from the
tenth day after such demand is made by Payee until payment is received by Payee,
in addition to any other rights or remedies available to Payee under this
Agreement or applicable law.
7.10 Limited Purpose of Certain Provisions. The provisions of Article
VII, except for Section 7.7, are solely for the benefit of the Agent and the
Lenders and for the limited purpose of defining certain terms of their
respective relationship under this Agreement and the other Loan Documents.
Except with regard to the right to consent to any successor agent in accordance
with Section 7.7, neither the Company nor any other Loan Party shall have any
right, benefit or interest under, or because of the existence of, such
provisions nor shall such provisions (or the failure of the Agent or any of the
Lenders to comply with any of such provisions) affect the obligations of the
Loan Parties under this Agreement or any other Loan Document.
ARTICLE VIII
MISCELLANEOUS
8.1 Waivers, Amendments, etc.
(a) General. No provision of this Agreement or any other Loan Document
may be modified, waived or amended except by an instrument or instruments signed
by the Company and the Required Lenders, except that any provision of Article
VII may not be amended without the signature of the Agent and any provision of
Article VII (excluding Section 7.7) may be modified, amended or waived without
the signature of the Company and provided that, except by an instrument in
writing executed by all of the Lenders, no such modification, amendment or
waiver shall:
(i) authorize or permit the extension of time or times of
payment of the principal of, or interest on, the Notes, or any one of
them, or the reduction in principal amount thereof or the rate of
interest thereon, or any other modification in the terms of payment of
principal of or interest on the Notes or the assignment of the rights
or obligations of the Company thereunder or under any Notes or any
other Loan Document or the release of any guaranty for the Obligations;
(ii) amend or change the aggregate Tranche A Commitments or
the respective amounts of the Lenders' respective Commitments, or
reduce the percentage amount which constitute the Required Lenders, or
change the terms of this Section 8.1;
(iii) amend or change any of the Loan Documents so as to
materially impair the rights of the Lenders thereunder; or
(iv) authorize or permit the reduction in the amount of any of
the fees required to be paid to the Lenders under this Agreement or
change the due date of any such fees.
In the event that any Lender does not consent to any revision or
amendment for which the consent of all Lenders is required pursuant to this
Section 8.1 ("Nonconsenting Lender"), the Company shall have the option to
request the Agent to replace such Nonconsenting Lender. The Agent may thereafter
cause the outstanding Advances and Commitment of the Nonconsenting Lender to be
purchased and replaced by a new lender, including without limitation, any of the
Lenders and such Nonconsenting Lender must execute all assignments and other
transfer documents reasonably requested by the Agent to accomplish such
replacement.
8.2 Notices.
(a) General. All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered, telecopied or sent to the
Company, the Agent or the Lenders to the applicable Address set forth on the
signature page attached hereto, or to such other address
as may be designated by one of the Lenders, the Agent or the Company by written
notice to the other parties.
(b) Receipt of Notices. All notices, requests, consents and other
communications shall be deemed to have been given when received if hand
delivered, if mailed by certified or registered mail, postage prepaid, upon
receipt of such mailing, or if deposited with an expedited courier service such
as "Federal Express" or "Purolator", upon receipt which will be presumed to be
on the Business Day following such deposit, or if telecopied, on the Business
Day on which such telecopy is confirmed as having been received, in all cases,
addressed to the respective address set forth on the signature page attached
hereto, or as may otherwise be designated in accordance herewith.
(c) Notices of Termination or Prepayment. Notices by the Company to the
Agent with respect to terminations or reductions of the Tranche A Commitments or
the Tranche B Commitment and notices of prepayment, each pursuant to the terms
of this Agreement, shall be irrevocable and binding on the Company.
(d) Telephonic Notices. Any notice to be given by the Company to the
Agent pursuant to Section 2.2 and any notice to be given by the Agent or any
Lender hereunder, may be given by telephone, to be confirmed in writing in the
manner provided in Section 8.2(a). Any such notice given by telephone shall be
deemed effective upon receipt thereof by the President or Chief Financial
Officer of the Company and by the loan officer then administering this Agreement
or his or her supervisor with respect to the Agent and the Lenders.
8.3 No Waiver by Conduct; Remedies Cumulative. No course of dealing on
the part of the Agent or the Lenders, nor any delay or failure on the part of
the Agent or the Lenders in exercising any right, power or privilege hereunder
or under this Agreement or any other Loan Documents shall operate as a waiver of
such rights, power or privilege or otherwise prejudice their rights and remedies
hereunder or under this Agreement or any other Loan Document; nor shall any
single or partial exercise thereof preclude any further exercise thereof or the
exercise of any other right, power or privilege. No right or remedy conferred
upon or reserved to the Agent or the Lenders under this Agreement or under any
other Loan Document is intended to be exclusive of any other right or remedy,
and every right and remedy shall be cumulative and in addition to every other
right or remedy granted thereunder or now or hereafter existing under any
applicable law. Every right and remedy granted by this Agreement or under any
other Loan Document or by applicable law to the Agent or the Lenders may be
exercised from time to time and as often as may be deemed expedient by the Agent
or the Lenders and, unless contrary to the express provisions of this Agreement
or the other Loan Documents, irrespective of the occurrence or continuance of
any Default or Event of Default.
8.4 Reliance on and Survival of Various Provisions. All terms,
covenants, agreements, representations and warranties of the Company and/or any
other Loan Party made herein, to any other Loan Document, or in any certificate,
report, financial statement or other document furnished by or on behalf of the
Company or any other Loan Party in connection with this
Agreement or any other Loan Document shall be deemed to be material and to have
been relied upon by the Lenders, notwithstanding any investigation heretofore or
hereafter made by the Agent or in any Lender's behalf, and those covenants and
agreements of the Company set forth in Section 8.5 shall survive the repayment
in full of the Obligations and the termination of the Commitments.
8.5 Expenses; Indemnification. The Company, agrees to pay, or reimburse
the Agent and the Lenders for the payment of, on demand: (a) the reasonable fees
and expenses of counsel to the Agent, including the reasonable fees and expenses
of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇, in connection with the preparation,
execution, delivery and administration of this Agreement, the other Loan
Documents, any documents or instruments prepared prior to the Effective Date and
the consummation of the transactions contemplated hereby, and in connection with
advising the Agent and the Lenders as to its rights and responsibilities with
respect thereto, and in connection with any amendments, waivers or consents in
connection therewith; and (b) all stamp and other taxes and fees payable or
determined to be payable in connection with the execution, delivery, filing or
recording of this Agreement, the Notes and the other Loan Documents and the
consummation of the transactions contemplated hereby, and any and all
liabilities with respect to or resulting from any delay in paying or omitting to
pay such taxes or fees; and (c) all reasonable costs and expenses of each Lender
(including reasonable fees and expenses of counsel and when incurred through
negotiations, legal proceedings or otherwise) in connection with any Default or
Event of Default or the enforcement of, or the exercise or preservation of any
rights under, this Agreement, the Notes or any other Loan Document or in
connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement.
8.6 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns, except that the Company may not assign or transfer its rights
hereunder without the prior written consent of all the Lenders and no Lender may
assign any portion of its Advances, Notes or Commitment to any other person
other than an Affiliate of such Lender or the Federal Reserve Board (a) without
the prior written consent of the Agent and, so long as there is no Default or
Event of Default then existing, the Company (in each case, such consent not to
be unreasonably withheld), and (b) any such assignment must be in the minimum
amount of $5,000,000, or the entire Commitment of a Lender if less than
$5,000,000 subject, however, to the rights of each Lender to grant
participations of any amount in accordance with the following sentence. Without
limiting the foregoing, each Lender may grant participations in all or any part
of its Advances, Notes and Commitment to any institutional investor without the
consent of the Company and the Agent and each of such Lender's participants may
grant subparticipations but only so long as: (i) no holder of any such
participation or subparticipation, other than an Affiliate of such Lender, shall
be entitled to require such Lender to take or omit to take any action hereunder
(except that such holder may have rights to require such Lender to consent or
not consent to the items set forth in clauses (i) through (iv) of Section 8.1
above); and (ii) no Lender shall, as between the Company and such Lender or
between such Lender and any other Lender or the Agent, be relieved of any of its
obligations hereunder as a result of any such granting of a participation. The
Company hereby acknowledges and agrees that any participant or subparticipant
described in this Section
8.6 will, for purposes of Section 2.8, be considered to be a Lender hereunder
(provided that such participant or subparticipant shall not be entitled to
receive any more than the Lender owning the Advances or Commitment subject to
such participation or subparticipation would have received had such Lender not
sold a participation) and may rely on, and possess all rights under, any
opinions, certificates, or other instruments or documents delivered under or in
connection with this Agreement or any Note.
8.7 Disclosure of Information.
(a) General. Subject to Section 8.7(b), the Company authorizes the
Agent and the Lenders to disclose to any permitted assignee or participant or to
any successor to their respective assets (each, a "Transferee") and to any
prospective Transferee any and all financial and other information in the
Agent's or Lender's possession concerning the Company or any Subsidiary which
has been delivered to the Agent or a Lender by or on behalf of the Company or
any Subsidiary pursuant to this Agreement or the other Loan Documents or which
has been received by the Agent and the Lenders in connection with their credit
evaluation of the Company or any Subsidiary prior to entering into this
Agreement.
(b) Confidentiality. The Agent and Lenders agrees to hold any
non-public information which it has received or may receive from any Loan Party
pursuant to this Agreement or any other Loan Document confidential, except for
disclosure (i) to officers, employees and agents of the Agent and Lenders and
their respective Affiliates having a need to know such information in the course
of their duties to such party, (ii) to legal counsel, accountants, and other
professional advisors to the Agent or a Lender having a need to know such
information in the course of their duties to such person, (iii) to Governmental
Authorities, (iv) as requested pursuant to or as required by Governmental
Regulations, (v) in connection with any collection of the Obligations and/or any
legal proceeding to which the Agent or a Lender is a party, and (vi) to a
Transferee or prospective Transferee which agrees to be bound by this Section
8.7(b).
8.8 Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
8.9 Governing Law.
(a) General. This Agreement is a contract made under, and shall be
governed by and construed in accordance with, the laws of the State of Michigan
applicable to contracts made and to be performed entirely within such State and
without giving effect to choice of law principles of such State. The Company
further agrees that any legal action or proceeding with respect to this
Agreement or any other Loan Document or the transactions contemplated hereby may
be brought in any court of the State of Michigan or a court of the United States
of America sitting
in the Eastern District of Michigan, and the Company and each of the Loan
Parties hereby submits to and accepts generally and unconditionally the
jurisdiction of those courts with respect to its person and property.
(b) Suit in Other Jurisdictions. Nothing in Section 8.9(a) shall affect
the right of the Agent or any Lender to serve legal process in any other manner
permitted by law or affect the right of the Agent or any Lender to bring any
action or proceeding against any Loan Party or their respective property in the
courts of any other jurisdictions.
(c) Immunity. To the extent that any Loan Party has or hereafter may
acquire any immunity from jurisdiction of any court or from any service of
process (whether from service or notice, or otherwise) with respect to itself or
its property, the Company hereby irrevocably waive such immunity in respect of
its obligations under this Agreement, the Notes and the other Loan Documents.
8.10 Table of Contents and Headings. The table of contents and the
headings of the various Articles, Sections and paragraphs hereof are for the
convenience of reference only and shall in no way modify any of the terms or
provisions hereof.
8.11 Construction of Certain Provisions. If any provision of this
Agreement refers to any action to be taken by any person, or which such person
is prohibited from taking, such provision shall be applicable whether such
action is taken directly or indirectly by such person, whether or not expressly
specified in such provision.
8.12 Integration and Severability. This Agreement and the other Loan
Documents embody the entire agreement and understanding between the Company and
the other Loan Parties, on the one hand, and the Agent and the Lenders, on the
other hand, and supersede all prior agreements and understandings relating to
the subject matter hereof. In case any one or more of the obligations of the
Company or any Loan Party under this Agreement or any other Loan Document shall
be invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining obligations of the Company or any shall not
in any way be affected or impaired thereby, and such invalidity, illegality or
enforceability of the obligations of the Company and any other Loan Party under
this Agreement or any other Loan Document in any other jurisdiction.
8.13 Independence of Covenants. All covenants hereunder shall be given
independent effect so that if a particular action or condition is not permitted
by any such covenant, the fact that it would be permitted by an exception to, or
would be otherwise within the limitation of, another covenant shall not avoid
the occurrence of a Default or Event of Default or any event or condition which
with notice or lapse of time, or both, could become such a Default or an Event
of Default if such action is taken or such condition exists.
8.14 Interest Rate Limitations.
(a) All Advances. Notwithstanding any provisions of this Agreement or
any other Loan Document, in no event shall the amount of interest paid or agreed
to be paid by the Company exceed an amount computed at the highest rate of
interest permissible under applicable law. If, from any circumstances
whatsoever, fulfillment of any provision of this Agreement or any other Loan
Document at the time performance of such provision shall be due, shall involve
exceeding the interest rate limitation validly prescribed by law which a court
of competent jurisdiction may deem applicable hereto, then, ipso facto, the
obligations to be fulfilled shall be reduced to an amount computed at the
highest rate of interest permissible under applicable law, and if for any reason
whatsoever a Lender shall ever receive as interest an amount which would be
deemed unlawful under such applicable law, such interest shall be automatically
applied to the payment of principal of the Advances outstanding hereunder
(whether or not then due and payable) and not to the payment of interest, or
shall be refunded to the Company if such principal and all other Obligations of
the Company to the Lender have been paid in full.
(b) Canadian Advances. With respect to all Canadian Advances only:
(i) All interest payments to be made to the Canadian Lender
under this Agreement will be paid without allowance or deduction for
deemed re-investment or otherwise, both before and after maturity and
before and after default and/or judgment, if any, until payment of the
amount on which such interest is accruing, and interest will accrue on
overdue interest, if any.
(ii) Unless otherwise stated, wherever this Agreement
reference is made to a rate of interest "per annum" or a similar
expression is used for amounts due to the Canadian Lender, such
interest will be calculated by the Canadian Lender on the basis of a
calendar year of 365 days or 366 days, as the case may be, and using
the nominal rate method of calculation, and will not be calculated
using the effective rate method of calculation or on any other basis
that gives effect to the principle of deemed re-investment of interest.
(iii) For purposes of the Interest Act (Canada) and disclosure
under such act, whenever interest to be paid under this Agreement to
the Canadian Lender is to be calculated on the basis of a year of 365
days or 360 days of any other period of time that is less than a
calendar year, the yearly rate of interest to which the rate determined
pursuant to such calculation is equivalent is the rate so determined
multiplied by the actual number of days in the calendar year in which
the same is to be ascertained and divided by either 365, 360 or such
other period of time, as the case may be.
8.15 Limitation of Liability. Neither the Agent, the Lenders nor any of
their Affiliates, directors, officers, agents, attorneys or employees shall be
liable to the Company or any of its Affiliates for any action taken, or omitted
to be taken, by it or them or any of them under this Agreement or any other Loan
Document or in connection herewith or therewith, except that no person shall be
relieved of any liability for negligence, misconduct, or breach of contract.
8.16 Interpretation. This Agreement and each other Loan Document are
being entered into by competent and experienced business people, represented by
counsel, and this Agreement and each other Loan Document have been reviewed by
the parties and their counsel. Therefore, any ambiguous language will not
necessarily be construed against any particular party as the drafter of such
language. The parties intend that this Agreement and all other Loan Documents
shall be construed and interpreted in a consistent manner. In the event of any
conflict or inconsistency between the terms of this Agreement and the terms of
any other Loan Document, the terms of this Agreement shall be controlling but
the other Loan Document shall not otherwise be affected or the rights therein
impaired.
8.17 Jurisdiction and Venue. The Company hereby irrevocably submits to
the jurisdiction of any Minnesota or Michigan state court or any federal court
located in Minneapolis, Minnesota or Detroit, Michigan over any action or
proceeding arising out of or relating to this Agreement or any other Loan
Document, and Company hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such state or court or
federal court. The Company hereby irrevocably waives, to the fullest extent it
may effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding. The Company agrees that judgment final by appeal,
or expiration of time to appeal without an appeal being taken, in any such
action or proceeding shall be conclusive and may be enforced in any other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this subsection shall affect the right of the Agent or any Lender to
serve legal process in any other manner permitted by law or affect the right of
the Agent or any Lender to bring any action or proceeding against the Company or
its property in the courts of any other jurisdiction. The Company agrees that,
if it brings any action or proceeding arising out of or relating to this
Agreement, it shall bring such action or proceeding in Hennepin County,
Minnesota or ▇▇▇▇▇ County, Michigan.
8.18 WAIVER OF JURY TRIAL. THE AGENT, THE COMPANY AND EACH OF THE
LENDERS, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO
A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT,
THE NOTES OR ANY OTHER LOAN DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF ANY OF THEM. NEITHER THE AGENT, THE COMPANY NOR ANY
LENDER SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION
IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE DEEMED TO
HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE AGENT, THE COMPANY NOR
ANY LENDER EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Long Term
Second Amended and Restated Revolving Credit Agreement to be duly executed as of
the date first written above.
AG-CHEM EQUIPMENT CO., INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: Senior Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: 612/▇▇▇-▇▇▇▇
Telecopy: 612/933-8799
Tranche A Commitment: $20,000,000 NBD BANK
Percentage: 50.0% of US Advances
By: /s/ ***
***
Its: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ***
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Tranche A Commitment: US$5,000,000 THE FIRST NATIONAL BANK OF CHICAGO
Percentage: 50.0% of Dutch Guilder
Advances
By: /s/ ***
***
Its: Vice President
Address: ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
Attn: ***
Telephone: 011/44/▇▇▇-▇▇▇-▇▇▇▇
Telecopy: 011/44/171-438-4148
Tranche A Commitment: $12,800,000 ▇▇▇▇▇▇ TRUST AND SAVINGS BANK
Percentage: 32.0%
By: /s/ ***
***
Its: Vice President
Address: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ 10C
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ***
Telephone: 312/▇▇▇-▇▇▇▇
Telecopy: 312/293-5040
Tranche A Commitment: $7,200,000 COOPERATIEVE CENTRALE RAIFFEISEN -
Percentage: 18.0% BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By: /s/ ***
***
Its: Vice President
By: /s/ ***
***
Its: Senior Credit Officer
Address: ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ***
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ***,
Corporate Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Tranche B Commitment: ▇▇▇▇,▇▇▇,▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Percentage: 100% of Canadian Advances
By: (ILLEGIBLE)
--------------------------------
Its: Assistant Vice President
By: (ILLEGIBLE)
--------------------------------
Its: Vice President
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Attn: ***
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇