EXHIBIT 4.1
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SECOND AMENDMENT TO
SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") is made and entered into as of this 10th day of July, 1998, by and
between XXXX, INC., a New York corporation, as borrower (the "Borrower"), and
NATIONSBANK, N.A., a national banking association, as lender (the "Lender").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower and the Lender are parties to that certain Second
Amended and Restated Loan Agreement, dated as of October 13, 1994, as amended by
the First Amendment to Second Amended and Restated Loan Agreement, dated as of
October 31, 1996 (as amended, the "Loan Agreement"), pursuant to which the
Lender extended certain financial accommodations to the Borrower; and
WHEREAS, the Borrower has requested, and the Lender has agreed, subject to
the terms hereof, to amend certain provisions of the Loan Agreement, including
(i) an increase in the amount of the existing revolving credit facility under
the Loan Agreement from $10,000,000 to $20,000,000; and (ii) an extension of the
maturity date from October 31, 1999 to October 31, 2000; and
NOW, THEREFORE, in consideration of the premises, the terms and conditions
contained herein, and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. DEFINITIONS. All capitalized terms used herein and not expressly
defined herein shall have the same respective meanings given to such terms in
the Loan Agreement.
2. AMENDMENT TO ARTICLE I. Article I of the Loan Agreement is hereby
amended by deleting the definitions of "Commitment," "Loan Amount," and "Note"
---------- ----------- ----
in their entirety and substituting in lieu thereof the following new definitions
to read as follows:
"Commitment: That certain agreement dated as of September 29, 1994
---------- between the Borrower and the Lender, a copy of which is
attached hereto as Exhibit 'A,' as amended and supplemented
by that certain agreement dated as of October 25, 1996
between the Borrower and the Lender, a copy of which
is attached as Exhibit 'A' to the First Amendment to
the Loan Agreement dated as of October 31, 1996 by
and between the Borrower and the Lender, and as
amended and supplemented by that certain agreement
dated as of June 19, 1998 between the Borrower and
the Lender, a copy of which is attached as Exhibit
'A' to the Second Amendment to the Loan Agreement
dated as of July 10, 1998 by and between the Borrower
and the Lender."
"Loan Amount: Revolving Loan - Up to $20,000,000.
----------- Term Loan - The Term Loan has been paid off."
"Note: The Second Amended and Restated Promissory Note, dated as of
---- July 10, 1998 (the 'Revolving Note') in the principal amount of
its Loan Amount made by the Borrower to the order of the
Lender."
3. AMENDMENT TO ARTICLE II. Article II of the Loan Agreement,
Representations and Warranties of the Borrower, is hereby amended by adding the
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following Section 2.7:
"2.7 (a) The Borrower has (i) begun analyzing the operations of the
Borrower and of each of its Subsidiaries' that could be adversely
affected by the failure to become Year 2000 compliant (that is, that
computer applications, imbedded microchips and other systems used by
the Borrower or any of its Subsidiaries will be able to recognize and
perform properly date-sensitive functions prior to and any date after
December 31, 1999); (ii) developed a plan and timeline for becoming
Year 2000 compliant on a timely basis; and (iii) to date, implemented
that plan in accordance with that timetable. The Borrower reasonably
believes that its operations and any of its Subsidiaries' operations
will become Year 2000 compliant on a timely basis, except to the
extent that a failure to do so could not reasonably be expected to
have a material adverse effect.
(b) The Borrower reasonably believes any suppliers and vendors
that are material to the operations of the Borrower or of any of its
Subsidiaries will be Year 2000 compliant for their own computer
applications, except to the extent that a failure to do so could not
reasonably be expected to have a material adverse effect."
4. AMENDMENTS TO ARTICLE III.
(a) Article III of the Loan Agreement, Covenants of the Borrower, is
-------------------------
hereby amended by deleting the existing Section 3.09 in its entirety and
substituting in lieu thereof: "[Reserved]."
(b) Article III of the Loan Agreement, Covenants of the
-----------------
Borrower, is hereby further amended by deleting the first sentence of Section
--------
3.12 in its entirety and substituting in lieu thereof:
"The Borrower will maintain a minimum Net Worth of no less than Fifty
Million Dollars ($50,000,000) plus seventy-five percent (75%) of the
----
cumulative, positive Net Income generated from March 31, 1998 to the end
of such fiscal quarter during which the computation of Net Worth is being
made; provided, however, that during any fiscal quarter during which the
-------- -------
Borrower institutes and/or maintains a monetary dividend payment on its
Capital Stock, sixty-five percent (65%) of the Net Income generated for
such fiscal quarter instead of seventy-five percent (75%) of the Net
Income generated shall be included in the computation of Net Worth."
(c) Article III of the Loan Agreement, Covenants of the
-----------------
Borrower, is hereby further amended by deleting the existing Section
--------
3.13 in its entirety and substituting in lieu thereof:
"3.13 The Borrower will maintain as of the end of each fiscal
quarter a Funded Debt to Cash Flow ratio of not more than 3.0 to 1.0.
'Cash Flow' shall be defined as Net Income of the Borrower for the
most recently completed four (4) fiscal quarters, plus, to the extent
deducted in determining Net Income, the sum of each of the following
for such period: (a) depreciation and amortization allowances,
(b) interest expense (net of any interest income) and (c) income tax
expense. 'Funded Debt' shall be defined as Debt for money borrowed
and Debt represented by notes payable and drafts accepted representing
extensions of credit, all obligations evidenced by bonds, debentures,
notes or other similar instruments, all Debt upon which interest
charges are customarily paid, all Capitalized Lease Obligations, all
reimbursement obligations with respect to outstanding letters of
credit, all Debt issued or assumed as full or partial payment for
property or services (other than trade payables arising in the
ordinary course of business, but only if and so long as such accounts
are payable on customary trade terms), whether or not any such notes,
drafts, obligations or Debt represent Debt for money borrowed, and,
without duplication, guaranties of any of the foregoing."
(d) Article III of the Loan Agreement, Covenants of the
-----------------
Borrower, is hereby further amended by deleting the
---------
existing Section 3.14 in its entirety and substituting in lieu thereof:
"3.14 The Borrower will not make or incur Capital Expenditures and
Capital Lease Obligations in excess of five million dollars
($5,000,000.00) in the aggregate during any fiscal year of the
Borrower without the prior written consent of the Lender."
(e) Article III of the Loan Agreement, Covenants of the Borrower, is
-------------------------
hereby further amended by adding the following new Sections 3.16, 3.17 and
3.18:
"3.16 The Borrower shall maintain as of the end of each fiscal quarter an
Adjusted Cash Flow to Debt Service ratio of not less than 1.5:1.0.
'Adjusted Cash Flow' shall mean Cash Flow minus dividends for the most
recently completed four (4) fiscal quarters. 'Debt Service' shall mean
that portion of Long Term Debt and interest expense which is due and
payable within a twelve (12) month period from the date of which Debt
Service is to be determined. 'Long Term Debt' shall mean that portion
of Total Liabilities which is due and payable after a twelve (12)
month period from the date at which Long Term Debt is to be
determined."
"3.17 The Borrower shall be permitted to make an acquisition or
series of acquisitions without Lender approval or notification for an
aggregate gross consideration of not more than $5,000,000 (cash or
stock, including the assumption of liabilities, as permitted under the
loan covenants) in any fiscal year. Acquisition(s) that exceed
$5,000,000 in any fiscal year, may be made by the Borrower only with
the prior written approval of the Lender by submitting to the Lender
such information concerning such acquisition as the Lender may request
including, without limitation, a proforma income statement and balance
sheet of the combined entities for the immediately preceding twelve
(12) months based on actual results, along with a proforma income
statement and balance sheet for the following twelve (12) months."
"3.18 The Borrower will promptly notify the Lender in the event the
Borrower is made aware of or determines that any computer application
that is material to the operations of the Borrower or of any of its
Subsidiaries or of any of its material vendors or suppliers will not
be fully Year 2000 compliant on a timely basis, except to the extent
that such failure could not reasonably be expected to have a material
adverse effect."
5. AMENDMENT TO ARTICLE V. Section 5.1 of the Loan Agreement, General
-------
Covenants, is hereby amended by deleting the existing Section 5.01 in its
---------
entirety and substituting in lieu thereof:
"5.1 The Borrower agrees to pay the Lender an unused fee on the
aggregate unborrowed balance of the Revolving Loan, for each day
from July 10, 1998 until the Revolving Loan maturity date, at a
rate of one-eighth of one percent (1/8%) per annum. Such unused
fee shall be computed on the basis of a year of 365/366 days for
the actual number of days elapsed, shall be billed quarterly in
arrears on the last day of each calendar quarter, commencing on
September 30, 1998, shall be fully earned when due, and shall be
non-refundable when paid. A final payment of any unused fee then
payable shall also be due and payable on the Revolving Loan
maturity date."
6. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents and
warrants to and in favor of the Lender as follows:
(a) Each representation and warranty set forth in Article II of the
Loan Agreement, as amended hereby, is hereby restated and affirmed as true and
correct in all material respects as of the date hereof, except to the extent
(i) previously fulfilled in accordance with the terms of the Loan Agreement, as
amended hereby, (ii) Borrower has provided the Lender updates to information
provided to the Lender in accordance with the terms of such representations and
warranties, or (iii) relating specifically to the Agreement Date or otherwise
inapplicable;
(b) The Borrower has the corporate power and authority (i) to enter
into this Amendment, and (ii) to do all acts and things as are required or
contemplated hereunder to be done, observed and performed by it;
(c) This Amendment has been duly authorized, validly executed and
delivered by one or more Authorized Signatories of the Borrower, and constitutes
the legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with its terms, subject, as to enforcement of
remedies, to the following qualifications: (i) an order of specific performance
and an injunction are discretionary remedies and, in particular, may not be
available where damages are considered an adequate remedy at law, and
(ii) enforcement may be limited by bankruptcy, insolvency, liquidation,
reorganization, reconstruction and other similar laws affecting enforcement of
creditors' rights generally (insofar as any such law relates to the bankruptcy,
insolvency or similar event of the Borrower); and
(d) The execution and delivery of this Amendment and performance by
the Borrower under the Loan Agreement, as amended hereby, does not and will not
require the consent or approval of any regulatory authority or governmental
authority or agency having jurisdiction over the Borrower which has not already
been obtained, nor be in contravention of or in conflict with the Articles of
Incorporation or By-Laws of the Borrower, or any provision of any statute,
judgment, order, indenture, instrument, agreement, or undertaking, to which the
Borrower is party or by which the Borrower's assets or properties are bound.
7. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The effectiveness
of this Amendment is subject to:
(a) all of the representations and warranties of the Borrower under
Section 5 hereof which are made as of the date hereof, shall be true and
correct in all material respects;
(b) receipt by the Lender of a certificate of the chief financial
officer of the Borrower certifying that no Default exists both before and
after giving effect to this Amendment, and there has been no material
adverse change in the financial condition of the Borrower both before and
after giving effect to this Amendment;
(c) receipt by the Lender of duly executed Second Amended and
Restated Revolving Note in substantially the form attached hereto as
Exhibit "B", which promissory note shall be deemed to be a "Note" under the
-----------
Loan Agreement and the other Loan Documents for all purposes hereafter; and
(d) receipt of any other documents or instruments that the Lender may
reasonably request, certified by an officer of the Borrower if so
requested.
8. EFFECT OF AMENDMENT; NO NOVATION. Except for the amendments set
forth above and the amendment and restatement of the Amended and Restated
Promissory Note pursuant to the Second Amended and Restated Promissory Note
dated of even date herewith (the "Revolving Note"), the text of the Loan
Agreement and all other Loan Documents shall remain unchanged and in full force
and effect. No waiver by the Lender under the Loan Agreement or any other Loan
Document is granted or intended except as expressly set forth herein, and the
Lender expressly reserves the right to require strict compliance in all other
respects. Except as set forth herein and in the Revolving Note, the amendments
agreed to herein shall not constitute a modification of the Loan Agreement or
any of the other Loan Documents, or a course of dealing with the Lender, at
variance with the Loan Agreement or any of the other Loan Documents, such as to
require further notice by the Lender to require strict compliance with the terms
of the Loan Agreement and the other Loan Documents in the future. The terms of
this Amendment are not intended to and do not serve as a novation as to the Loan
Agreement or the Revolving Note or the indebtedness evidenced thereby. The
parties hereto expressly do not intend to extinguish any debt or security
interest created pursuant to the Loan Agreement or any document executed in
connection therewith. Instead it is the express intention to affirm the Loan
Agreement and the security created thereby.
9. COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which, when so executed and delivered, shall be deemed to be an original and all
of which counterparts, taken together, shall constitute but one and the same
instrument.
10. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the successors and permitted assigns of the parties
hereto.
11. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
12. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE AND
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY
PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS
AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
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THE BORROWER'S DOMICILE AT TIME OF THE EXECUTION OF THIS INSTRUMENT,
AGREEMENT OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IN UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING
THE ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS INSTRUMENT, AGREEMENT OR
---------------------
DOCUMENT SHALL BE DEEMED TO (i) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS
AGREEMENT; OR (ii) BE A WAIVER BY THE LENDER OF THE PROTECTION AFFORDED TO IT BY
12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (iii) LIMIT THE
RIGHT OF THE LENDER HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT
LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH
AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. THE LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON
SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING
OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
13. LOAN DOCUMENTS. This document shall be deemed to be a Loan Document
for all purposes.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Amendment under
seal as of the day and year first above written.
BORROWER: XXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Chief Financial Officer
Attest: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxx Xxxxxx
---------------------
Title: Sr Accountant
--------------------
[CORPORATE SEAL]
LENDER: NATIONSBANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
EXHIBIT "A"
TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
Atlanta Commercial Division
000 Xxxxxxxxx Xx., X. X.
00xx Xxxxx
Xxxxxxx, XX. 30308
Tel. 000-000-0000
NATIONSBANK
June 19, 1998
Xx. Xxxxxx X. Xxxxxxx
Chief Financial Officer
XXXX, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Dear Xxx,
NationsBank ("Bank") is pleased to offer XXXX, Inc. ("Borrower") the following
increase in amount, and extension of, its revolving credit line:
Extension & Increase in XXXX'x Existing Revolving Line of Credit
(Changes Only)
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LOAN AMOUNT: Increased to $20,000,000 from $10,000,000
-----------
MATURITY DATE: Extended to October 31, 2000
-------------
INTEREST RATE: See attached Schedule "A"
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FEES: See attached Schedule "A"
----
COVENANTS: Will remain the same as existing agreement with
--------- the exception of those modifications outlined on
attached Schedule "B"
-------------------------------------------------------------------------------
The changes to existing credit facility shall be evidenced by the following
where necessary:
DOCUMENTS: The obligation of the Borrower hereunder shall be evidenced by a
---------
Promissory Note, Security Agreement, UCC Financing Statement or other such
documents and assurances as the Bank may request from Borrower and its officers
in order to make the Loans in a form satisfactory to the Bank and its counsel.
Xx. Xxxxxx Xxxxxxx
June 19, 1998
EXPENSES: The Borrower shall pay all costs and expenses incurred by NationsBank
--------
in connection with the negotiation and preparation of the Loan documentation,
whether or not the credit facilities are actually closed, including the fees and
expenses of counsel if necessary.
COUNTERPARTS: This Letter Agreement may be executed simultaneously in two or
------------more counterparts, each of which shall be deemed an original for
evidentiary purposes, but all of which together shall constitute one and the
same instrument.
SUCCESSORS AND ASSIGNS: This Letter Agreement shall be binding on all parties
----------------------
thereto, their successors, assigns and representatives.
DEFAULT: Borrower shall be in default under this Letter Agreement and under any
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and all promissory notes executed by Borrower in favor of Bank and any and all
other documents, instruments, security agreements, guarantees executed and/or
delivered by Borrower in connection with the Loan (collectively, the "Loan
Documents"), if it shall default in the payment of any amounts due and owing
under the Loan or any other obligation of Borrower to Bank or to some other
party or should it fail to timely and properly perform, keep and observe any
term, covenant, agreement or condition in this Letter Agreement or any of the
Loan Documents.
MATERIAL ADVERSE CHANGE: This Letter Agreement is conditioned upon there having
-----------------------
occurred no act, omission or undertaking which would, singly or in the
aggregate, have a materially adverse effect upon the business, assets,
liabilities, financial condition, results of operations or business prospects of
the Borrower, any of its subsidiaries, or of any guarantor, or upon the ability
of the Borrower to perform any material obligations arising under the Loan
Documents.
ACCEPTANCE AND SURVIVAL: The terms and provisions of this Letter Agreement
-----------------------
shall not survive the closing of the Loan, the delivery of all documents
necessary to carry out the provision of this Letter Agreement, and the funding
and making of advances and disbursements hereunder. If the terms and conditions
of the Letter Agreement meet with your approval, please indicate your acceptance
by signing and returning the original to us. This Letter Agreement shall become
null and void if not accepted within ten (30) working days of the date hereof,
and the Loans closed within sixty (60) working days of the date hereof.
ARBITRATION: Any controversy or claim between or among the parties hereto
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including but not limited to those arising out of or relating to this Agreement
or any related instruments, agreements or documents including any claim based on
or arising from an alleged tort, shall be determined by binding arbitration in
accordance with the Federal Arbitration Act (or if not applicable, the
applicable state law), and the rules of practice and procedure for the
arbitration of commercial disputes of J.A.M.S./Endispute,
Xx. Xxxxxx Xxxxxxx
June 19, 1998
or any successor thereto, as supplemented by any special rules set forth in any
of the Loan Documents. Judgment upon any arbitration award may be entered in
any court having jurisdiction. Any party to this Agreement may bring an action,
including a summary or expedited proceeding, to compel arbitration of any
controversy or claim to which this Agreement applies in any court having
jurisdiction over such action.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Senior Vice President
Acknowledged and agreed to this 19th day of June , 1998.
------ --------- --
XXXX, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Xxxxxx X. Xxxxxxx
Vice President of Finance
and Chief Financial Officer
EXHIBIT "A"
Rate options for Revolver (rates are floating 30 day LIBOR)
-----------------------------------------------------------
Funded Debt to EBITDA Rate Unused Fee
---------------------------------------------------------
< 1.0 Libor + 75bps 1/8%
> 1.0 < 1.5 Libor + 100 bps 1/8%
-
> 1.5 < 2.0 Libor + 125 bps 1/8%
-
> 2.0 < 2.25 Libor + 150 bps 1/8%
-
> 2.25 < 3.0 Libor + 200 bps 1/8%
-
Rates will change quarterly based on the funded debt to EBITDA index as
calculated at quarter end on a rolling 4 quarter basis.
EXHIBIT "B"
Amendments to Article III of Loan Agreement
-------------------------------------------
1. Section 3.09 shall be eliminated in its entirety ("Current Ratio")
2. Section 3.12 shall be amended to use $50,000,000 as the base minimum net
worth as of the fiscal year end 3/31/98. The additions to net worth
calculations shall remain the same.
3. Section 3.13 shall be amended to change the Funded Debt to Cash Flow Ratio
from 2.25:1.0 Maximum to 3.0:1.0 Maximum.
4. A new covenant shall be added regarding Debt Service Coverage. The
Covenant shall be defined as follows. The Borrower shall maintain a Debt
Service Coverage ratio of not less than 1.5:1.0. Debt Service Coverage
shall be defined as follows:
Net Income + Depreciation & Amortization - Dividends + Interest Expense
-----------------------------------------------------------------------
Current Maturities of Long Term Debt & Capital Leases + Interest Expense
Debt Service Coverage shall be measured on a rolling 4 quarter basis at the
end of each fiscal quarter.
5. A new covenant shall be added that shall state: The Borrower shall be
permitted to make an acquisition(s) without Bank approval or notification
whereby the gross consideration for said acquisition(s) is not more than
$5,000,000 (cash or stock, including the assumption of liabilities, as
permitted under the loan covenants) in one fiscal year. In the event the
Borrower desires to make an acquisition(s) that exceed $5,000,000 in one
fiscal year, the Borrower shall do so only with the written approval of the
Bank. In the event of the latter, the Borrower shall submit a proforma
income statement and balance sheet of the combined entities for the
immediately preceding 12 months based on actual results, along with a
proforma income statement and balance sheet for the following 12 months.
The Bank shall use this information, along with any other information that
may be requested from the Borrower regarding the proposed transaction, to
determine its approval.
6. Capital Expenditures will be limited to $5,000,000 in the aggregate in any
one fiscal year without the approval of the Bank.
EXHIBIT "B"
TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
Amendments and Supplements to Commitment
July 10, 1998
NationsBank, N.A.
000 Xxxxxxxxx Xxxxxx, X.X.00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
Re: XXXX, Inc. - Affirmation of Guaranty
Gentlemen:
Each of the undersigned has executed in your favor a Guaranty dated as of
the date set forth next to the signature of each of the undersigned below,
pursuant to the terms of which each of the undersigned has guarantied all
obligations, liabilities and indebtedness of XXXX, Inc. to NationsBank, N.A.
f/k/a NationsBank, N.A. (South) (the "Lender"), however and whenever incurred or
evidenced, whether direct or indirect, absolute or contingent, or due or to
become due and any and all extensions, renewals, modifications or substitutions
of any of the foregoing (collectively, the "Liabilities"). The undersigned have
been advised that Lender on this date is extending further financial
accommodations to XXXX, Inc. This letter will evidence the consent of each of
the undersigned to the incurrence by XXXX, Inc. of certain Liabilities, as well
as certain other documents, agreements or reports with respect thereto. Each of
the undersigned hereby affirms and agrees that its guaranty shall remain binding
and enforceable in full force and effect according to its terms and shall
guaranty the Liabilities of XXXX, Inc. and subsidiaries heretofore incurred,
incurred on the date hereof and hereafter incurred.
Sincerely,
ALLIED DIAGNOSTIC IMAGING RESOURCES, INC. (F/K/A
ALLIED PHOTO PRODUCTS CO., INC.)
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President Finance & CFO
--------------------------------
Date of Guaranty: 12/9/92 and 2/9/94
NationsBank, N.A.
July 10, 1998
Page 2
TREBLA CHEMICAL COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President Finance & CFO
--------------------------------
Date of Guaranty: 12/9/92
PRS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President Finance & CFO
--------------------------------
Date of Guaranty: 12/9/92
XXXX - EUROPE
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President Finance & CFO
--------------------------------
Date of Guaranty: 2/9/94
THE XXXXXX BRUSH COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Vice President Finance & CFO
--------------------------------
Date of Guaranty: 10/13/94
EXHIBIT "C"
Form of Revolving Note
SECOND AMENDED AND RESTATED PROMISSORY NOTE
Date: July 10, 0000 Xxxxxx: $20,000,000.00
Maturity Date: October 31, 2000
WHEREAS, pursuant to that certain Promissory Note dated December 9, 1992, as
amended by that certain Note Modification Agreement dated December 16, 1993, as
further amended by that certain Second Note Modification Agreement dated
October 13, 1994 (as amended, the "Original Promissory Note"), XXXX, INC., a New
York corporation ("Borrower") obtained from NATIONSBANK, N.A. (formerly known as
NationsBank, N.A. (South), and hereinafter, together with its successors and
assigns, called the "Lender"), a revolving loan not to exceed Four Million Five
Hundred Thousand Dollars ($4,500,000.00) with a maturity date of October 31,
1996;
WHEREAS, Borrower and Lender are parties to that certain Second Amended and
Restated Loan Agreement dated as of October 13, 1994, as amended by First
Amendment thereto dated as of October 31, 1996 (as amended, the "Loan
Agreement"), pursuant to which the revolving loan obtained from the lender was
increased to Ten Million Dollars ($10,000,000.00) with a maturity date of
October 31, 1999;
WHEREAS, Borrower and Lender are parties to the Second Amendment to Loan
Agreement dated as of July 10, 1998, whereby the Borrower has requested that the
Original Promissory Note be modified to increase the amount, extend the maturity
date thereof and as otherwise hereinafter set forth and Lender has agreed to
such modification;
NOW THEREFORE, in consideration of the mutual covenants and agreements contained
herein, one and no/100 dollar ($1.00) and other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the
Lender and the Borrower agree that all capitalized terms used herein shall have
the meanings ascribed thereto in the Loan Agreement and further to amend and
restate the Original Promissory Note subject to the terms and conditions set
forth herein.
FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender, at
NationsBank, N.A., X.X. Xxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 or such
other place as Lender may designate in writing to the Borrower, without set-off,
counterclaim or reduction of any kind, the principal sum of TWENTY MILLION AND
00/100s DOLLARS ($20,000,000.00) of United States funds, or, if less, so much
thereof as may from time to time be advanced by Lender to Borrower and is
outstanding hereunder, plus interest as hereinafter provided.
THIS NOTE IS GIVEN IN REPLACEMENT OF THE ORIGINAL PROMISSORY NOTE AND SHALL NOT
CONSTITUTE A NOVATION WITH RESPECT TO SUCH NOTES OR THE INDEBTEDNESS EVIDENCED
THEREBY.
1. RATE. The Rate shall be, at Borrower's option, the Prime Rate, the LIBOR
Basis or the LIBOR 30-day Rate.
PRIME RATE. The Prime Rate, plus zero percent (0%), per annum. The "Prime
Rate" is the fluctuating rate of interest established by Lender from time to
time, at its discretion, whether or not such rate shall be otherwise published.
The Prime Rate is established by Lender as an index and may or may not at any
time be the best or lowest rate charged by Lender on any loan.
LIBOR BASIS. The LIBOR Basis shall mean a simple per annum interest rate
(rounded upward, if necessary, to the nearest one-hundredth (1/100th) of one
percent) equal to the sum of (a) the quotient of (i) the LIBOR Rate divided by
(ii) one minus the LIBOR Reserve Percentage, stated as a decimal, plus (b) the
Applicable Margin. The "LIBOR Rate" is, for any advance for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1% appearing on Telerate Page 3750 (or any successor page) as the
London interbank offered rate for deposits in United States Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "LIBOR Rate" shall mean, for any
advance for any Interest Period therefor, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page
as the London interbank offered rate for deposits in United States Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period; provided,
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however, if more than one rate is specified on Reuters Screen LIBO Page, the
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applicable rate shall be the arithmetic mean of such rates. The "Interest
Period" is thirty (30) days. Notwithstanding the foregoing, however, (i) any
applicable Interest 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 Interest Period
shall end on the next preceding Business Day, (ii) any applicable Interest
Period which begins on a day for which there is no numerically corresponding day
in the calendar month during which such Interest Period is to end shall (subject
to clause (i) above) end on the last day of such calendar month, and (iii) no
Interest Period shall extend beyond the Maturity Date or such earlier date as
would interfere with the repayment obligations of the Borrower hereunder. The
"LIBOR Reserve Percentage" is the percentage which is in effect from time to
time under Regulation D of the Board of Governors of the Federal Reserve System,
as such regulation may be amended from time to time, as the maximum reserve
requirement applicable with respect to Eurocurrency Liabilities (as that term is
defined in Regulation D), whether or not Lender has any such Eurocurrency
Liabilities subject to such reserve requirement at that time. The LIBOR Basis
for any advance shall be adjusted as of the effective date of any change in the
LIBOR Reserve Percentage.
LIBOR 30-DAY RATE. The LIBOR 30-day Rate shall mean a simple per annum interest
rate equal to the sum of the LIBOR 30-day Rate plus the Applicable Margin. The
"LIBOR 30-day Rate" shall be the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1% appearing on Telerate Page 3750 (or any successor
page) as the London interbank offered rate for deposits in United States Dollars
at approximately 11:00 a.m. (London time) on the first Business Day of each
month for a thirty day period. If for any reason such rate is not available,
the term "LIBOR 30-day Rate" shall mean the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as
the London interbank offered rate for deposits in United States Dollars at
approximately 11:00 a.m. (London time) on the first Business Day of each month
for a thirty (30) day period; provided, however, if more than one rate is
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specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of such rates. "Business Day" is a day on which banks are not
authorized or required to be closed and foreign exchange markets are open for
the transaction of business required for this Agreement in Atlanta, Georgia and
London, England, as relevant to the determination to be made or the action to be
taken.
APPLICABLE MARGIN. The Applicable Margin shall be the interest rate margin
determined by Lender based upon the ratios for the most recent fiscal quarter
end, effective as of the first Business Day of the month after the financial
statements referred to in Section 3.6 of the Loan Agreement are required to be
furnished by Borrower to Lender for the fiscal quarter most recently ended,
determined as follows:
Funded Debt to Cash Flow Applicable Margin
------------------------ -----------------
Greater than 2.25 but less than
or equal to 3.0 2.0%
Greater than 2.0 but less than
or equal to 2.25 1.5%
Greater than 1.5 but less than
or equal to 2.0 1.25%
Greater than 1.0 but less than
or equal to 1.5 1.0%
Less than 1.0 .75%
Notwithstanding any provision of this Note, Lender does not intend to charge and
Borrower shall not be required to pay any amount of interest or other charges in
excess of the maximum permitted by the applicable law of the State of Georgia;
if any higher rate ceiling is lawful, then that higher rate ceiling shall apply.
Any payment in excess of such maximum shall be refunded to Borrower or credited
against principal, at the option of Lender.
2. ACCRUAL METHOD. Interest at the Rate set forth above will be calculated by
the 365/360 day method (a daily amount of interest is computed for a
hypothetical year of 360 days; that amount is multiplied by the actual number of
days for which any principal is outstanding hereunder).
3. RATE CHANGE DATE. Any Rate based on a fluctuating index or base rate will
change, unless otherwise provided, each time and as of the date that the index
or base rate changes. In the event any index is discontinued, Lender shall
substitute an index determined by Lender to be comparable, in its sole
discretion.
4. PAYMENT SCHEDULE. All payments received hereunder shall be applied first
to the payment of any expense or charges payable hereunder or under any other
loan documents executed in connection with this Note, then to interest due and
payable, with the balance applied to principal, or in such other order as Lender
shall determine at its option. Principal shall be paid in full in a single
payment on October 31, 2000. Interest thereon shall be paid monthly, on the
first day of each Interest Period, and continuing on the first day of each
successive month thereafter, with a final payment of all unpaid interest at the
stated maturity of this Note.
5. REVOLVING FEATURE. Borrower may borrow, repay and reborrow hereunder at
any time, up to a maximum aggregate amount outstanding at any one time equal to
the principal amount of this Note, provided that Borrower is not in default
under any provision of this Note, any other documents executed in connection
with this Note, or any other note or other loan documents now or hereafter
executed in connection with any other obligation of Borrower to Lender, and
provided that the borrowings hereunder do not exceed any borrowing base or other
limitation on borrowings by Borrower. Lender shall incur no liability for its
refusal to advance funds based upon its determination that any conditions of
such further advances have not been met. Lender records of the amounts borrowed
from time to time shall be conclusive proof thereof.
6. AUTOMATIC PAYMENT. Borrower has elected to authorize Lender to effect
payment of sums due under this Note by means of debiting Borrower's account
number 00000000. This authorization shall not affect the obligation of Borrower
to pay such sums when due, without notice, if there are insufficient funds in
such account to make such payment in full on the due date thereof, or if Lender
fails to debit the account.
7. WAIVERS, CONSENTS AND COVENANTS. Borrower, any indorser or guarantor
hereof, or any other party hereto (individually an "Obligor" and collectively
"Obligors") and each of them jointly and severally: (a) waive presentment,
demand, protest, notice of demand, notice of intent to accelerate, notice of
acceleration of maturity, notice of protest, notice of nonpayment, notice of
dishonor, and any other notice required to be given under the law to any Obligor
in connection with the delivery, acceptance, performance, default or enforcement
of this Note, any indorsement or guaranty of this Note, or any other documents
executed in connection with this Note or any other note or other loan documents
now or hereafter executed in connection with any obligation of Borrower to
Lender (the "Loan Documents"); (b) consent to all delays, extensions, renewals
or other modifications of this Note or the Loan Documents, or waivers of any
term hereof or of the Loan Documents, or release or discharge by Lender of any
of Obligors, or release, substitution or exchange of any security for the
payment hereof, or the failure to act on the part of Lender, or any indulgence
shown by Lender (without notice to or further assent from any of Obligors), and
agree that no such action, failure to act or failure to exercise any right or
remedy by Lender shall in any way affect or impair the obligations of any
Obligors or be construed as a waiver by Lender of, or otherwise affect, any of
Lender's rights under this Note, under any indorsement or guaranty of this Note
or under any of the Loan Documents; and (c) agree to pay, on demand, all costs
and expenses of collection or defense of this Note or of any indorsement or
guaranty hereof and/or the enforcement or defense of Lender's rights with
respect to, or the administration, supervision, preservation, or protection of,
or realization upon, any property securing payment hereof, including, without
limitation, reasonable attorney's fees, including fees related to any suit,
mediation or arbitration proceeding, out of court payment agreement, trial,
appeal, bankruptcy proceedings or other proceeding, in such amount as may be
determined reasonable by any arbitrator or court, whichever is applicable.
8. "INTEREST" LIMITED. As used in this Note and for the purposes of Section
7-4-2 of the Official Code of Georgia Annotated, or any successor thereto, the
term "interest" does not include any fees (including, but not limited to, the
Loan Fee) or other charges imposed on Borrower in connection with the
indebtedness evidenced by this Note, other than the interest described above.
9. PREPAYMENTS. Prepayments may be made in whole or in part at any time on
any loan for which the Rate is based on the Prime Rate. All prepayments of
principal shall be applied in the inverse order of maturity, or in such other
order as Lender shall determine in its sole discretion. No prepayment of any
other loan shall be permitted without the prior written consent of Lender.
Notwithstanding such prohibition, if there is a prepayment of any such loan,
whether by consent of Lender, or because of acceleration or otherwise, Borrower
shall, within 15 days of any request by Lender, pay to Lender any loss or
expense which Lender may incur or sustain as a result of such prepayment. For
the purposes of calculating the amounts owed only, it shall be assumed that
Lender actually funded or committed to fund the loan through the purchase of an
underlying deposit in an amount and for a term comparable to the loan, and such
determination by Lender shall be conclusive, absent a manifest error in
computation.
10. DELINQUENCY CHARGE. To the extent permitted by law, a delinquency charge
may be imposed in an amount not to exceed four percent (4%) of any payment that
is more than fifteen days late.
11. EVENTS OF DEFAULT. The following are events of default hereunder: (a) the
failure to pay or perform any obligation, liability or indebtedness of any
Obligor to Lender, or to any affiliate or subsidiary of NationsBank
Corporation, whether under this Note or any Loan Documents, as and when due
(whether upon demand, at maturity or by acceleration); (b) the failure to pay or
perform any other obligation, liability or indebtedness of any Obligor to any
other party; (c) the death of any Obligor (if an individual); (d) the
resignation or withdrawal of any partner or a material owner/guarantor of
Borrower, as determined by Lender in its sole discretion; (e) the commencement
of a proceeding against any Obligor for dissolution or liquidation, the
voluntary or involuntary termination or dissolution of any Obligor or the merger
or consolidation of any Obligor with or into another entity; (f) the insolvency
of, the business failure of, the appointment of a custodian, trustee, liquidator
or receiver for or for any of the property of, the assignment for the benefit of
creditors by, or the filing of a petition under bankruptcy, insolvency or
debtor's relief law or the filing of a petition for any adjustment of
indebtedness, composition or extension by or against any Obligor; (g) the
determination by Lender that any representation or warranty made to Lender by
any Obligor in any Loan Documents or otherwise is or was, when it was made,
untrue or materially misleading; (h) the failure of any Obligor to timely
deliver such financial statements, including tax returns, other statements of
condition or other information, as Lender shall request from time to time; (i)
the entry of a judgment against any Obligor which Lender deems to be of a
material nature, in Lender's sole discretion; (j) the seizure or forfeiture of,
or the issuance of any writ of possession, garnishment or attachment, or any
turnover order for any property of any Obligor; (k) the determination by Lender
that it is insecure for any reason; (l) the determination by Lender that a
material adverse change has occurred in the financial condition of any Obligor;
or (m) the failure of Borrower's business to comply with any law or regulation
controlling its operation.
12. REMEDIES UPON DEFAULT. Whenever there is a default under this Note (a) the
entire balance outstanding hereunder and all other obligations of any Obligor to
Lender (however acquired or evidenced) shall, at the option of Lender, become
immediately due and payable and any obligation of Lender to permit further
borrowing under this Note shall immediately cease and terminate, and/or (b) to
the extent permitted by law, the Rate of interest on the unpaid principal shall
be increased at Lender's discretion up to the maximum rate allowed by law, or if
none, 25% per annum (the "Default Rate"). The provisions herein for a Default
Rate shall not be deemed to extend the time for any payment hereunder or to
constitute a "grace period" giving Obligors a right to cure any default. At
Lender's option, any accrued and unpaid interest, fees or charges may, for
purposes of computing and accruing interest on a daily basis after the due date
of the Note or any installment thereof, be deemed to be a part of the principal
balance, and interest shall accrue on a daily compounded basis after such date
at the Default Rate provided in this Note until the entire outstanding balance
of principal and interest is paid in full. Upon a default under this Note,
Lender is hereby authorized at any time, at its option and without notice or
demand, to set off and charge against any deposit accounts of any Obligor (as
well as any money, instruments, securities, documents, chattel paper, credits,
claims, demands, income and any other property, rights and interests of any
Obligor), which at any time shall come into the possession or custody or under
the control of Lender or any of its agents, affiliates or correspondents, any
and all obligations due hereunder. Additionally, Lender shall have all rights
and remedies available under each of the Loan Documents, as well as all rights
and remedies available at law or in equity.
13. NON-WAIVER. The failure at any time of Lender to exercise any of its
options or any other rights hereunder shall not constitute a waiver thereof, nor
shall it be a bar to the exercise of any of its options or rights at a later
date. All rights and remedies of Lender shall be cumulative and may be pursued
singly, successively or together, at the option of Lender. The acceptance by
Lender of any partial payment shall not constitute a waiver of any default or of
any of Lender's rights under this Note. No waiver of any of its rights
hereunder, and no modification or amendment of this Note, shall be deemed to be
made by Lender unless the same shall be in writing, duly signed on behalf of
Lender; each such waiver shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Lender or the obligations of
Obligors to Lender in any other respect at any other time.
14. APPLICABLE LAW, VENUE AND JURISDICTION. This Note and the rights and
obligations of Borrower and Lender shall be governed by and interpreted in
accordance with the law of the State of Georgia. In any litigation in
connection with or to enforce this Note or any indorsement or guaranty of this
Note or any Loan Documents, Obligors, and each of them, irrevocably consent to
and confer personal jurisdiction on the courts of the State of Georgia or the
United States located within the State of Georgia and expressly waive any
objections as to venue in any such courts. Nothing contained herein shall,
however, prevent Lender from bringing any action or exercising any rights within
any other state or jurisdiction or from obtaining personal jurisdiction by any
other means available under applicable law.
15. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of
this Note shall not affect the enforceability or validity of any other provision
herein and the invalidity or unenforceability of any provision of this Note or
of the Loan Documents to any person or circumstance shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances.
16. BINDING EFFECT. This Note shall be binding upon and inure to the benefit
of Borrower, Obligors and Lender and their respective successors, assigns, heirs
and personal representatives, provided, however, that no obligations of Borrower
or Obligors hereunder can be assigned without prior written consent of Lender.
17. CONTROLLING DOCUMENT. To the extent that this Note conflicts with or is
in any way incompatible with any other document related specifically to the loan
evidenced by this Note, this Note shall control over any other such document,
and if this Note does not address an issue, then each other such document shall
control to the extent that it deals most specifically with an issue.
18. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY
PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF ANY
BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT
OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF
J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN
THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL
BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION
SHALL BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE
APPLICABLE STATUTES OF LIMITATION OR REPOSE AND ANY WAIVERS
CONTAINED IN THIS INSTRUMENT, AGREEMENT OR DOCUMENT; OR (II) BE A
WAIVER BY LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C.
SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT
THE RIGHT OF LENDER HERETO (A) TO EXERCISE SELF HELP REMEDIES
SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO FORECLOSE AGAINST
ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN FROM A
COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER. Lender MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE
UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS INSTRUMENT, AGREEMENT OR
DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE
INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR
PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF
THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH
ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM
OCCASIONING RESORT TO SUCH REMEDIES.
Borrower represents to Lender that the proceeds of this loan are to be used
primarily for business, commercial or agricultural purposes. Borrower
acknowledges having read and understood, and agrees to be bound by, all terms
and conditions of this Note and hereby executes this Note under seal as of the
date here above written.
NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
XXXX, INC., a New York corporation
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------
Title: Vice President Finance and CFO
------------------------------
Attest: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------
Title: Sr Accountant
-------------------------------
[Corporate Seal]
EXHIBIT "D"
CONTINUING AND UNCONDITIONAL GUARANTY
===============================================================================
BANK: | GUARANTOR:
|
NationsBank, N.A. | XXXX Italia, SRL
000 Xxxxxxxxx Xxxxxx, X.X. | f/k/a Chimifoto Ornano
19th Floor | Xxx Xxxxxxx 00
Xxxxxxx, Xxxxxx Xxxxxx, XX 00000 | Milano 20127
| Italy
Attn: Xx. Xxxxxxx X. Xxxxxxxx |
|
===============================================================================
"BORROWER": XXXX, INC.
--------------------------------------------------------------------
(Borrower's Name)
1. GUARANTY. FOR VALUE RECEIVED, and to induce NationsBank, N.A. (Attn:
Xxxxxxx X. Xxxxxxxx) ("Bank") to make loans or advances or to extend credit or
other financial accommodations or benefits, with or without security, to or for
the account of Borrower, the undersigned "Guarantor", if more than one, then
each of them jointly and severally, hereby irrevocably and unconditionally
guarantees to Bank the full and prompt payment when due, whether by acceleration
or otherwise, of any and all Liabilities (as hereinafter defined) of Borrower to
Bank. This Guaranty is continuing and unlimited as to the amount, and is
cumulative to and does not supersede any other guaranties.
Guarantor further unconditionally guarantees the faithful, prompt and complete
compliance by Borrower with all Obligations (as hereinafter defined). The
undertakings of Guarantor hereunder are independent of the Liabilities and
Obligations of Borrower and a separate action or actions for payment, damages or
performance may be brought or prosecuted against Guarantor, whether or not an
action is brought against Borrower or to realize upon the security for the
Liabilities and/or Obligations, whether or not Borrower is joined in any such
action or actions, and whether or not notice is given or demand is made upon
Borrower.
Bank shall not be required to proceed first against Borrower, or any other
person, or entity, whether primarily or secondarily liable, or against any
collateral held by it, before resorting to Guarantor for payment, and Guarantor
shall not be entitled to assert as a defense to the enforceability of the
Guaranty any defense of Borrower with respect to any Liabilities or Obligations.
2. PARAGRAPH HEADINGS, GOVERNING LAW AND BINDING EFFECT. Guarantor agrees
that the paragraph headings in this Guaranty are for convenience only and that
they will not limit any of the provisions of this Guaranty. Guarantor further
agrees that this Guaranty shall be governed by and construed in accordance with
the laws of the State of Georgia and applicable United States federal law.
Guarantor further agrees that this Guaranty shall be deemed to have been made in
the State of Georgia at Bank's address indicated above, and shall be governed
by, and construed in accordance with, the laws of the State of Georgia, or the
United States courts located within the State of Georgia, and is performable in
the State of Georgia. This Guaranty is binding upon Guarantor, his, their or
its executors, administrators, successors or assigns, and shall inure to the
benefit of Bank, its successors, indorsees or assigns. Anyone executing this
Guaranty shall be bound by the terms hereof without regard to execution by
anyone else.
3. DEFINITIONS.
A. "Guarantor" shall mean Guarantor or any one or more of them.
B. "Liability" or "Liabilities" shall mean without limitation, all
liabilities, overdrafts, indebtedness, and obligations of Borrower and/or
Guarantor to Bank, whether direct or indirect, absolute or contingent, joint or
several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, now or
hereafter existing, or held or to be held by Bank for its own account or as
agent for another or others, whether created directly, indirectly, or acquired
by assignment or otherwise, including but not limited to all extensions or
renewals thereof, and all sums payable under or by virtue thereof, including
without limitation, all amounts of principal and interest, all expenses
(including reasonable attorney's fees and cost of collection) incurred in the
collection thereof or the enforcement of rights thereunder (including without
limitation, any liability arising from failure to comply with state or federal
laws, rules and regulations concerning the control of hazardous waste or
substances at or with respect to any real estate securing any loan guaranteed
hereby), whether arising in the ordinary course of business or otherwise. If
Borrower is a partnership, corporation or other entity the term "Liability" or
"Liabilities" as used herein shall include all Liabilities to Bank of any
successor entity or entities.
C. "Loan Documents" shall mean all deeds to secure debt, deeds of trust,
mortgages, security agreements and other documents securing payment of the
Liabilities and all notes and other agreements, documents, and instruments
evidencing or relating to the Liabilities and Obligations.
D. "Obligation" or "Obligations" shall mean all terms, conditions,
covenants, agreements and undertakings of Borrower and/or Guarantor under all
notes and other documents evidencing the Liabilities, and under all deeds to
secure debt, deeds of trust, mortgages, security agreements and other
agreements, documents and instruments executed in connection with the
Liabilities or related thereto.
4. WAIVERS BY GUARANTOR. Guarantor waives notice of acceptance of this
Guaranty, notice of any Liabilities or Obligations to which it may apply,
presentment, demand for payment, protest, notice of dishonor or nonpayment of
any Liabilities, notice of intent to accelerate, notice of acceleration, and
notice of any suit or the taking of other action by Bank against Borrower,
Guarantor or any other person, any applicable statute of limitations and any
other notice to any party liable on any Loan Document (including Guarantor).
Each Guarantor also hereby waives any claim, right or remedy which such
Guarantor may now have or hereafter acquire against Borrower that arises
hereunder and/or from the performance by any other Guarantor hereunder
including, without limitation, any claim, remedy or right of subrogation,
reimbursement, exoneration, contribution, indemnification, or participation in
any claim, right or remedy of Bank against Borrower or against any security
which Bank now has or hereafter acquires, whether or not such claim, right or
remedy arises in equity, under contract, by statute, under common law or
otherwise.
Guarantor also waives the benefits of any provision of law requiring that Bank
exhaust any right or remedy, or take any action, against Borrower, any
Guarantor, any other person and/or property including but not limited to the
provisions of the Official Code of Georgia Section10-7-24 and the Official Code
of Georgia Section11-3-601, as amended, or otherwise.
Bank may at any time and from time to time (whether before or after revocation
or termination of this Guaranty) without notice to Guarantor (except as required
by law), without incurring responsibility to Guarantor, without impairing,
releasing or otherwise affecting the Obligations of Guarantor, in whole or in
part, and without the indorsement or execution by Guarantor of any additional
consent, waiver or guaranty: (a) change the manner, place or terms of payment,
or change or extend the time of or renew, or change any interest rate or alter
any Liability or Obligation or installment thereof, or any security therefor;
(b) loan additional monies or extend additional credit to Borrower, with or
without security, thereby creating new Liabilities or Obligations the payment or
performance of which shall be guaranteed hereunder, and the Guaranty herein made
shall apply to the Liabilities and Obligations as so changed, extended,
surrendered, realized upon or otherwise altered; (c) sell, exchange, release,
surrender, realize upon or otherwise deal with in any manner and in any order
any property at any time pledged or mortgaged to secure the Liabilities or
Obligations and any offset there against; (d) exercise or refrain from
exercising any rights against Borrower or others (including Guarantor) or act or
refrain from acting in any other manner; (e) settle or compromise any Liability
or Obligation or any security therefor and subordinate the payment of all or any
part thereof to the payment of any Liability or Obligation of any other parties
primarily or secondarily liable on any of the Liabilities or Obligations; (f)
release or compromise any Liability of Guarantor hereunder or any Liability or
Obligation of any other parties primarily or secondarily liable on any of the
Liabilities or Obligations; or (g) apply any sums from any sources to any
Liability without regard to any Liabilities remaining unpaid.
5. SUBORDINATION. Upon demand of Bank, Guarantor agrees that it will not
demand, take or receive from Borrower, by set-off or in any other manner,
payment of any debt, now and at any time or times hereafter owing by Borrower to
Guarantor unless and until all the Liabilities and Obligations shall have been
fully paid and performed, and any security interest, liens or encumbrances which
Guarantor now has and from time to time hereafter may have upon any of the
assets of Borrower shall be made subordinate, junior and inferior and postponed
in priority, operation and effect to any security interest of Bank in such
assets.
6. WAIVERS BY BANK. No delay on the part of Bank in exercising any of its
options, powers or rights, and no partial or single exercise thereof, shall
constitute a waiver thereof. No waiver of any of its rights hereunder, and no
modification or amendment of this Guaranty, shall be deemed to be made by Bank
unless the same shall be in writing, duly signed on behalf of Bank; and each
such waiver, if any, shall apply only with respect to the specific instance
involved, and shall in no way impair the rights of Bank or the obligations of
Guarantor to Bank in any other respect at any other time.
7. TERMINATION. This Guaranty shall be binding on each Guarantor until
written notice of revocation signed by such Guarantor or written notice of the
death of such Guarantor shall have been received by Bank, notwithstanding change
in name, location, composition or structure of, or the dissolution, termination
or increase, decrease or change in personnel, owners or partners of Borrower, or
any one or more of Guarantors. No notice of revocation or termination hereof
shall affect in any manner rights arising under this Guaranty with respect to
Liabilities or Obligations that shall have been committed, created, contracted,
assumed or incurred prior to receipt of such written notice pursuant to any
agreement entered into by Bank prior to receipt of such notice.
The sole effect of such notice of revocation or termination hereof shall be to
exclude from this Guaranty, Liabilities or Obligations thereafter arising that
are unconnected with Liabilities or Obligations theretofore arising or
transactions entered into theretofore.
In the event of the death of a Guarantor, the liability of the estate of the
deceased Guarantor shall continue in full force and effect as to (i) the
Liabilities existing at the date of death, and any renewals or extensions
thereof, and (ii) loans or advances made to or for the account of Borrower after
the date of death of the deceased Guarantor pursuant to a commitment made by
Bank to Borrower prior to the date of such death. As to all surviving
Guarantors, this Guaranty shall continue in full force and effect after the
death of a Guarantor, not only as to the Liabilities existing at that time, but
also as to Liabilities thereafter incurred by Borrower to Bank.
8. PARTIAL INVALIDITY AND/OR ENFORCEABILITY OF GUARANTY. The unenforceability
or invalidity of any provision of this Guaranty shall not affect the
enforceability or validity of any other provision herein and the invalidity or
unenforceability of any provision of any Loan Document as it may apply to any
person or circumstance shall not affect the enforceability or validity of such
provision as it may apply to other persons or circumstances.
In the event Bank is required to relinquish or return the payments, the
collateral or the proceeds thereof, in whole or in part, which had been
previously applied to or retained for application against any Liability, by
reason of a proceeding arising under the Bankruptcy Code, or for any other
reason, this Guaranty shall automatically continue to be effective
notwithstanding any previous cancellation or release effected by Bank.
9. CHANGE OF STATUS. Guarantor will not become a party to a merger or
consolidation with any other company, except where Guarantor is the surviving
corporation or entity, and all covenants under this Guaranty are assumed by the
surviving entity. Further, Guarantor may not change its legal structure,
without the written consent of Bank and all covenants under this Guaranty are
assumed by the new or surviving entity. Guarantor further agrees that this
Guaranty shall be binding, legal and enforceable against Guarantor in the event
Borrower changes its name, status or type of entity.
10. FINANCIAL AND OTHER INFORMATION. Guarantor agrees to furnish to Bank any
and all financial information and any other information regarding Guarantor
and/or collateral requested in writing by Bank within ten (10) days of the date
of the request. Guarantor has made an independent investigation of the
financial condition and affairs of Borrower prior to entering into this
Guaranty, and Guarantor will continue to make such investigation; and in
entering into this Guaranty Guarantor has not relied upon any representation of
Bank as to the financial condition, operation or creditworthiness of Borrower.
Guarantor further agrees that Bank shall have no duty or responsibility now or
hereafter to make any investigation or appraisal of Borrower on behalf of
Guarantor or to provide Guarantor with any credit or other information which may
come to its attention now or hereafter.
11. NOTICES. Notice shall be deemed reasonable if mailed postage prepaid at
least five (5) days before the related action to the address of Guarantor or
Bank, at their respective addresses indicated at the beginning of this Guaranty,
or to such other address as any party may designate by written notice to the
other party. Each notice, request and demand shall be deemed given or made, if
sent by mail, upon the earlier of the date of receipt or five (5) days after
deposit in the U.S. Mail, first class postage prepaid, or if sent by any other
means, upon delivery.
12. GUARANTOR DUTIES. Guarantor shall upon notice or demand by Bank promptly
and with due diligence pay all Liabilities and perform and satisfy all
Obligations for the benefit of Bank in the event of (a) the occurrence of any
default under any Loan Documents; (b) the failure of any Borrower or Guarantor
to perform any obligation or pay any liability or indebtedness of any Borrower
or Guarantor to Bank, or to any affiliate of Bank, whether under any Note,
Guaranty, or any other agreement, now or hereafter existing, as and when due
(whether upon demand, at maturity or by acceleration); (c) the failure of any
Borrower or Guarantor to pay or perform any other liability, obligation or
indebtedness of any Borrower or Guarantor to any other party; (d) the death of
any Borrower or Guarantor (if an individual); (e) the resignation or withdrawal
of any partner or a material owner/Guarantor of Borrower, as determined by Bank
in its sole discretion; (f) the commencement of a proceeding against any
Borrower or Guarantor for dissolution or liquidation, the voluntary or
involuntary termination or dissolution of any Borrower or Guarantor or the
merger or consolidation of any Borrower or Guarantor with or into another
entity; (g) the insolvency, or the business failure of, or the appointment of a
custodian, trustee, liquidator or receiver for or of any of the property of, or
the assignment for the benefit of creditors by, or the filing of a petition
under bankruptcy, insolvency or debtor's relief law or the filing of a petition
for any adjustment of indebtedness, composition or extension by or against any
Borrower or Guarantor; (h) the sole determination by Bank that any
representation or warranty to Bank in any Loan Document or otherwise to Bank was
untrue or materially misleading when made; (i) the failure of Guarantor or
Borrower to timely deliver such financial statements including tax returns and
all schedules, or other statements of condition or other information, as Bank
shall request from time to time; (j) the entry of a judgment against Borrower or
Guarantor which Bank deems to be of a material nature in the sole discretion of
Bank; (k) the seizure or forfeiture of any of Borrower or Guarantor's property,
or the issuance of any writ of possession, garnishment or attachment, or any
turnover order; (l) the sole determination by Bank that Guarantor or Borrower
jointly or severally, has suffered a material adverse change in its financial
condition; (m) the determination by Bank that for any reason it is insecure; (n)
any lien or additional security interest being placed upon any collateral which
is security for any Loan Document; or (o) the failure of Borrower's business to
comply with any law or regulation controlling the operation of Borrower's
business.
13. REMEDIES. Upon the failure of Guarantor to fulfill its duty to pay all
Liabilities and perform and satisfy all Obligations as required hereunder, Bank
shall have all of the remedies of a creditor and, to the extent applicable, of a
secured party, under all applicable law, and without limiting the generality of
the foregoing, Bank may, at its option and without notice or demand: (a)
declare any Liability due and payable at once; (b) take possession of any
collateral pledged by Borrower or Guarantor wherever located, and sell, resell,
assign, transfer and deliver all or any part of said collateral of Borrower or
Guarantor at any public or private sale or otherwise dispose of any or all of
the collateral in its then condition, for cash or on credit or for future
delivery, and in connection therewith Bank may impose reasonable conditions upon
any such sale, and Bank, unless prohibited by law the provisions of which cannot
be waived, may purchase all or any part of said collateral to be sold, free from
and discharged of all trusts, claims, rights or redemption and equities of
Borrower or Guarantor whatsoever; Guarantor acknowledges and agrees that the
sale of any collateral through any nationally recognized broker-dealer,
investment banker or any other method common in the securities industry shall be
deemed a commercially reasonable sale under the Uniform Commercial Code or any
other equivalent statute or federal law, and expressly waives notice thereof
except as provided herein; and (c) set-off against any or all liabilities of
Guarantor all money owed by Bank or any of its agents or affiliates in any
capacity to Guarantor whether or not due, and also set-off against all other
Liabilities of Guarantor to Bank all money owed by Bank in any capacity to
Guarantor, and if exercised by Bank, Bank shall be deemed to have exercised such
right of set-off and to have made a charge against any such money immediately
upon the occurrence of such default although made or entered on the books
subsequent thereto.
Bank shall have a properly perfected security interest in all of Guarantor's
funds on deposit with Bank to secure the balance of any Liabilities and/or
Obligations that Guarantor may now or in the future owe Bank. Bank is granted a
contractual right of set-off and will not be liable for dishonoring checks or
withdrawals where the exercise of Bank's contractual right of set-off or
security interest results in insufficient funds in Guarantor's account. As
authorized by law, Guarantor grants to Bank this contractual right of set-off
and security interest in all property of Guarantor now or at anytime hereafter
in the possession of Bank, including but not limited to any joint account,
special account, account by the entireties, tenancy in common, and all dividends
and distributions now or hereafter in the possession or control of Bank.
14. ATTORNEY FEES, COST AND EXPENSES. Guarantor shall pay all costs of
collection and reasonable attorney's fees, including reasonable attorney's fees
in connection with any suit, mediation or arbitration proceeding, out of Court
payment agreement, trial, appeal, bankruptcy proceedings or otherwise, incurred
or paid by Bank in enforcing the payment of any Liability or defending this
agreement.
15. COLLATERAL. Bank at all times and from time to time shall have the right
to require Guarantor to deliver to Bank collateral satisfactory to Bank to
secure Guarantor's undertakings hereunder and/or the Liabilities of Guarantor
hereunder.
[ ] CHECK IF APPLICABLE. In addition to the provisions stated above, Guarantor
hereby pledges, assigns and grants to Bank a security interest in and title to
the collateral described in the security agreement, deed of trust, deed to
secure debt, mortgage or other collateral instrument dated ,
------------------
19 which collateral, except for any margin stock (as defined in Regulation
-----
U of the Board of Governors of the Federal Reserve System), shall secure this
Guaranty, whether currently existing or arising in the future. Guarantor agrees
to execute such security agreements, financing statements and other documents as
Bank may reasonably require or request to obtain and perfect its security
interest in said collateral.
16. PRESERVATION OF PROPERTY. Bank shall not be bound to take any steps
necessary to preserve any rights in any property pledged as collateral to Bank
to secure Borrower and/or Guarantor's Liabilities and Obligations as against
prior parties who may be liable in connection therewith, and Borrower and
Guarantor hereby agree to take any such steps. Bank, nevertheless, at any time,
may (a) take any action it deems appropriate for the care or preservation of
such property or of any rights of Borrower and/or Guarantor or Bank therein; (b)
demand, xxx for, collect or receive any money or property at any time due,
payable or receivable on account of or in exchange for any property pledged as
collateral, to Bank to secure Borrower and/or Guarantor's Liabilities to Bank;
(c) compromise and settle with any person liable on such property; or (d) extend
the time of payment or otherwise change the terms of the Loan Documents as to
any party liable on the Loan Documents, all without notice to, without incurring
responsibility to, and without affecting any of the Obligations or Liabilities
of Guarantor.
17.ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT OR ANY RELATED INSTRUMENTS, AGREEMENTS OR
DOCUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL
BE DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION
ACT (OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY
PARTY TO THIS INSTRUMENT, AGREEMENT OR DOCUMENT MAY BRING AN ACTION, INCLUDING A
SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR
CLAIM TO WHICH THIS AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH
ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF ANY
BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS INSTRUMENT, AGREEMENT
OR DOCUMENT AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF
J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN
THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL
BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL BE
DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS INSTRUMENT, AGREEMENT OR
DOCUMENT; OR (II) BE A WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12
U.S.C. SEC. 91 OR ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE
RIGHT OF BANK HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED
TO) SETOFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH
AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT
OF A RECEIVER. BANK MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
INSTRUMENT, AGREEMENT OR DOCUMENT. NEITHER THIS EXERCISE OF SELF HELP REMEDIES
NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL
OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
18. CONTROLLING DOCUMENT. To the extent that this Continuing and
Unconditional Guaranty conflicts with or is in any way incompatible with any
other Loan Document concerning this Obligation, any promissory note shall
control over any other document, and if such promissory note does not address an
issue, then each other document shall control to the extent that it deals most
specifically with an issue.
19. EXECUTION UNDER SEAL. This Guaranty is being executed under seal by
Guarantor.
20. NOTICE OF FINAL AGREEMENT. THIS WRITTEN CONTINUING AND UNCONDITIONAL
GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be executed
under seal on this 10th day of July, 1998.
WITNESSED BY: Guarantor:
-------------------------- ---------------------------------(Seal)
-------------------------- ---------------------------------------
Print Name and Title Print Individual's Name
CORPORATE OR PARTNERSHIP GUARANTOR:
XXXX Italia, SRL
-------------------------- ---------------------------------------
Name of Corporation, Partnership, etc.
By: /s/ Xxxxxx X. Xxxxxxx (Seal)
--------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title: Vice President Finance &
---------------------------------
Chief Financial Officer
---------------------------------
Attest (If Applicable]
/s/ Xxxxxxx X. Xxxxxx
[Corporate Seal]
INDIVIDUAL ACKNOWLEDGMENT
State of )
--------------
)
County of )
-------------
This instrument was acknowledged before me on , 19 , by ,
------- --- ---------------
(Guarantor)
(Seal)
---------------------------------------
Notary Public
in and for the State of
----------------
--------------------------- ---------------------------------------
My Commission Expires Print Name of Notary
CORPORATE ACKNOWLEDGMENT
State of New York )
-------------
)
County of Xxxxxxxxxx )
------------
This instrument was acknowledged before me on July 10, 1998, by Xxxxxx X.
------- -- ----------
Weldgen, Chief Financial Officer of XXXX Italia, SRL, a corporation organized
------- -----------------------
under the laws of Italy, on behalf of said corporation.
/s/ Xxxxxxxx X. Xxxxxxxxx
---------------------------------------
(Seal) Notary Public
in and for the State of New York
---------------
12/23/98 Xxxxxxxx X. Xxxxxxxxx
---------------------- ---------------------------------------
My Commission Expires Print Name of Notary
::ODMA\PCDOCS\ATL\222510\1
[Notary Seal]
EXHIBIT "E"
TO
SECOND AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
CERTIFICATE AS TO NO DEFAULT
AND RELATED MATTERS
The undersigned, being the Chief Financial Officer of XXXX, INC., a New
York corporation (the "Borrower"), in connection with the Second Amendment to
Second Amended and Restated Loan Agreement dated as of July 10 , 1998 between
----
the Borrower and NationsBank, N.A., a national banking association (the
"Lender") (the "Amendment"), hereby certifies that:
(a) He is the Chief Financial Officer of Borrower and is authorized
and empowered to issue this certificate in such capacity for and on behalf
of the Borrower;
(b) The representations and warranties set forth in Section 6 of the
---------
Amendment, the terms of which are incorporated herein by reference, are true
and correct in all respects on and as of the date hereof;
(c) On the date hereof, and after giving effect to the transactions
contemplated under the Amendment, no Event of Default (as defined in the
Second Amended and Restated Loan Agreement dated as of October 13, 1994
between the Borrower and Lender) has occurred or is continuing, and there
has been no material adverse change in the financial condition of the
Borrower; and
(d) Borrower is, on the date hereof, in compliance with all the terms
and conditions set forth in the Amendment, on its part to be observed and
performed, which terms and conditions are incorporated herein by reference.
IN WITNESS WHEREOF, the undersigned have set his hands and seal this 10th
------
day of July, 1998.
XXXX, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxx
Chief Financial Officer
