EXHIBIT 10.2
SWINGLINE CREDIT AGREEMENT
Dated as of October 31, 1996
between
OVERHEAD DOOR CORPORATION
and
THE SAKURA BANK, LIMITED
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINED TERMS
Section 1.01. Definitions......................................... 1
Section 1.02. Interpretation...................................... 5
ARTICLE II
SWINGLINE FACILITY
Section 2.01. The Loans........................................... 5
Section 2.02. Manner of Borrowing................................. 5
Section 2.03. Repayment of Principal.............................. 6
Section 2.04. Payment of Interest................................. 6
Section 2.05. Voluntary Prepayment................................ 6
Section 2.06. Funding Losses...................................... 6
Section 2.07. Note................................................ 6
Section 2.08. The Letters of Credit............................... 6
Section 2.09. Manner of Issuance.................................. 7
Section 2.10. Reimbursement of Drawings........................... 7
Section 2.11. Letter of Credit Fee................................ 7
ARTICLE III
CHANGE IN CIRCUMSTANCES
Section 3.01. Increased Costs..................................... 7
Section 3.02. Illegality.......................................... 9
Section 3.03. Taxes............................................... 9
ARTICLE IV
FEES; PAYMENTS
Section 4.01. Commitment Fee...................................... 10
Section 4.02. Manner of Payments.................................. 11
Section 4.03. Extension of Payments............................... 11
Section 4.04. Computation of Interest and Fees.................... 11
ARTICLE V
CONDITIONS PRECEDENT
Section 5.01. Initial Conditions.................................. 11
Section 5.02. Continuing Conditions............................... 12
ARTICLE VI
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Section Page
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REPRESENTATIONS AND WARRANTIES
Section 6.01. Status.............................................. 12
Section 6.02. Subsidiaries........................................ 12
Section 6.03. Financial Condition................................. 13
Section 6.04. Litigation.......................................... 13
Section 6.05. No Violation........................................ 13
Section 6.06. Binding Agreement................................... 13
Section 6.07. Authorizations...................................... 14
Section 6.08. Investment Company Act.............................. 14
Section 6.09. Compliance with Laws................................ 14
Section 6.10. Taxes............................................... 14
ARTICLE VII
AFFIRMATIVE COVENANTS
Section 7.01. Payment of Taxes.................................... 14
Section 7.02. Preservation of Existence........................... 14
Section 7.03. Compliance with Laws................................ 15
Section 7.04. Keeping of Books and Records;
Inspection.......................................... 15
Section 7.05. Notice of Certain Events............................ 15
Section 7.06. Financial Statements and Other
Information......................................... 15
Section 7.07. Use of Proceeds..................................... 16
ARTICLE VIII
NEGATIVE COVENANTS
Section 8.01. Margin Regulations.................................. 16
Section 8.02. Liens............................................... 16
Section 8.03. Consolidations, Mergers, etc........................ 17
Section 8.04. Minimum Consolidated Shareholders'
Equity.............................................. 17
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01. Events of Default................................... 17
Section 9.02. Default Remedies.................................... 19
Section 9.03. Setoff.............................................. 20
Section 9.04. Default Interest.................................... 20
Section 9.05. Funding Indemnities................................. 20
ARTICLE X
GENERAL PROVISIONS
Section 10.01. Assignment.......................................... 20
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Section Page
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Section 10.02. Amendments and Waivers.............................. 21
Section 10.03. Notices............................................. 21
Section 10.04. Expenses; Indemnification........................... 21
Section 10.05. Cumulative Rights; No Waiver........................ 22
Section 10.06. Counterparts........................................ 22
Section 10.07. Severability........................................ 22
Section 10.08. Headings............................................ 22
Section 10.09. GOVERNING LAW....................................... 22
Section 10.10. Consent to Jurisdiction............................. 22
Section 10.11. Waiver of Jury Trial................................ 23
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EXHIBITS
A Form of Swingline Note
B Form of Notice of Borrowing
C Guaranty
D Secretary's Certificate of the Company
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SWINGLINE CREDIT AGREEMENT
SWINGLINE CREDIT AGREEMENT dated as of October 31, 1996 between OVERHEAD
DOOR CORPORATION, a corporation organized under the laws of the State of Indiana
(the "Company") and THE SAKURA BANK, LIMITED (the "Bank").
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W I T N E S S E T H:
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WHEREAS, the Company has requested the Bank to make revolving credit loans
to, and to issue letters of credit for the account of, the Company to be used by
the Company for its general corporate purposes; and
WHEREAS, the Bank is willing to make such revolving credit loans and issue
such letters of credit on the terms and subject to the conditions contained
herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINED TERMS
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Section 1.01. Definitions. Each term defined in this Section 1.01,
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when used in this Agreement, has the meaning indicated below:
"Agreement" shall mean this Swingline Credit Agreement, as amended,
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modified or supplemented from time to time.
"Business Day" shall mean a day on which banks are not required or
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authorized by law or executive order to close in New York City.
"Commitment" shall mean the obligation of the Bank to make Loans
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pursuant to Section 2.01 hereof and to issue Letters of Credit pursuant to
Section 2.08 hereof, in an aggregate principal and stated amount at any one time
outstanding up to $8,000,000.
"Company" shall have the meaning given to that term in the preamble
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hereof.
"Computation Period" shall mean (i) the period commencing on the date
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hereof and ending on December 31, 1996 and (ii) each successive three month
period thereafter ending on the last day of each March, June, September and
December, respectively, provided that the last Computation Period shall end on
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the Final Maturity Date.
"Consolidated Shareholders' Equity" shall mean at any date the
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consolidated shareholders' equity of the Company and its Subsidiaries,
determined as of such date in accordance with United States generally accepted
accounting principles.
"Default" shall mean any Event of Default or any event which, with the
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giving of notice or lapse of time, or both, would become an Event of Default.
"Dollars" or "$" shall mean the lawful currency of the United States
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of America and, in relation to any amount to be advanced or paid hereunder,
funds having same day or immediate value.
"Event of Default" shall mean each of the events set forth in Section
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9.01 hereof.
"Final Maturity Date" shall mean September 28, 2001.
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"Governmental Authority" shall mean any national, federal, state or
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local government (whether foreign or domestic), any political subdivision
thereof or any governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body or entity, or any other regulatory bureau,
authority, body or entity, including the Federal Deposit Insurance Corporation,
the Comptroller of the Currency or the Board of Governors of the Federal Reserve
System, any central bank or any comparable authority or entity.
"Guarantor" shall mean Sanwa Shutter Corporation, a corporation
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organized under the laws of Japan, and its successors.
"Guaranty" shall mean the Letter of Guaranty from the Guarantor to
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Bank, substantially in the form of Exhibit C hereto.
"Indebtedness" shall mean for any Person, without duplication, (i) all
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indebtedness or other obligations of such Person for borrowed money and all
obligations of such Person under leases which would, in accordance with United
States generally accepted accounting principles, be capitalized on the balance
sheet of such Person, (ii) all obligations of such Person to pay the deferred
purchase price of property or services (including indebtedness created under or
arising out of any conditional sale or other title retention agreement), (iii)
all obligations of such Person (contingent or otherwise) under reimbursement or
similar agreements with respect to the issuance of letters of credit, (iv) all
indebtedness or other obligations of such Person under or with respect to any
swap, cap, collar or other financial or commodity hedging arrangement, (v) all
indebtedness or other obligations of any other Person of the type specified in
clause (i), (ii), (iii) or (iv) above, the payment or collection of which such
Person has guaranteed (except by reason of endorsement for collection in the
ordinary course of business) or in respect of which such Person is liable,
contingently or otherwise, including,
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without limitation, liable by way of agreement to purchase products or
securities, to provide funds for payment, to maintain working capital or other
balance sheet conditions or otherwise to assure a creditor against loss, and
(vi) all indebtedness or other obligations of any other Person of the type
specified in clause (i), (ii), (iii), (iv) or (v) above secured by (or for which
the holder of such indebtedness has an existing right contingent or otherwise,
to be secured by) any Lien, upon or in property (including, without limitation,
accounts and contract rights) owned by such Person, whether or not such Person
has assumed or becomes liable for the payment of such indebtedness or
obligations.
"Interest Period" shall mean with respect to any Loan, the period
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commencing on the date such Loan is made and ending from one to 364 days
thereafter, as the Company may select as provided in Section 2.03 hereof.
Notwithstanding the foregoing: (x) the Company may not select an Interest Period
which would end after the Final Maturity Date; and (y) if any Interest Period
would otherwise end on a day which is not a Business Day, such Interest Period
shall end on the next succeeding Business Day.
"Laws" shall mean all laws, rules, regulations, orders and decrees of
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any Governmental Authority applicable to the Company or any of its Subsidiaries.
"Lending Office" shall mean (i) the office specified below the name of
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the Bank on the signature page hereof or (ii) such other office or offices as
the Bank shall designate to be its lending office for purposes of this
Agreement.
"Letter of Credit" shall mean each letter of credit issued by the Bank
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for the account of the Company pursuant to Article II hereof.
"Letter of Credit Agreement" shall have the meaning given to that term
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in Section 2.09 hereof.
"Lien" shall mean any security interest, mortgage, pledge,
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hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable law
of any jurisdiction).
"Loan" shall mean each loan made by the Bank to the Company pursuant
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to Article II hereof.
"Material Adverse Effect" shall mean any effect which would be
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material and adverse to the financial condition, assets, business or operations
of the Company and its Subsidiaries, considered as a whole, or which would
materially and adversely
3
impair the ability of the Company to perform its obligations under this
Agreement or the Related Documents to which it is a party.
"Notice of Borrowing" shall mean an irrevocable notice, substantially
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in the form of Exhibit B annexed hereto, given to the Bank by the Company
pursuant to Section 2.02 hereof.
"Overhead Door Revolver" shall mean the Credit Agreement dated as of
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the date hereof among the Company, the banks parties thereto and the Bank, as
agent for such banks.
"Person" shall mean any corporation, natural person, joint venture,
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partnership, trust, unincorporated organization, government or any department or
agency of any government.
"Related Documents" shall mean the Swingline Note, each Letter of
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Credit Agreement delivered to the Bank hereunder and the Guaranty.
"Swingline Note" shall mean a promissory note of the Company payable
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to the order of the Bank evidencing the Loans made by the Bank as provided for
herein, substantially in the form of Exhibit A hereto, and any promissory note
or notes of the Company issued in substitution thereof.
"Sanwa USA" shall mean Sanwa USA Inc., a corporation organized under
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the laws of the State of Delaware, and its successors.
"Sanwa USA Term Loan" shall mean the Term Loan Agreement dated as of
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the date hereof among Sanwa USA, the banks parties thereto and the Bank, as
agent for such Banks.
"Significant Subsidiary" shall mean any corporation or other entity
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which would constitute a "significant subsidiary" (as such term is defined in
Regulation S-X of the Securities and Exchange Commission) of the Company.
"Subsidiary" shall mean any corporation or other entity of which
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securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by the Company.
"Taxes" shall mean any and all taxes, levies, imposts, duties or other
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charges of a similar nature.
"Term Federal Funds Rate" shall mean, with respect to any Loan, the
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rate per annum determined by the Bank to be the rate at which U.S. dollar
deposits in immediately available funds are offered to the Bank by prime banks
in the domestic interbank market at or about 10:00 a.m. (New York City time) on
the day of, and for delivery on, the first day of the Interest Period applicable
to such Loan, for the number of days comprised therein and in an
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amount equal to the amount of such Loan. The Bank's determination of the Term
Federal Funds Rate applicable to any of its Loans shall be conclusive, absent
manifest error.
"Unused Commitment" shall mean the amount, determined as of the end of
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each day, by which the Commitment exceeds the sum of the aggregate principal
amount of the outstanding Loans and the aggregate stated amount of the
outstanding Letters of Credit.
Section 1.02. Interpretation. All references in this Agreement to any
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other agreement or instrument shall include such other agreement or instrument
as the same may be amended, modified or supplemented from time to time. In the
computation of interest and fees payable from a specified date to a later
specified date, unless otherwise indicated the word "from" means "from and
including" and the words "to" and "until" both mean "to but not including".
ARTICLE II
SWINGLINE FACILITY
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Section 2.01. The Loans. On the terms and subject to the conditions
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of this Agreement, the Bank, shall make Loans to the Company, from time to time
prior to the Final Maturity Date, in an aggregate principal amount at any one
time outstanding up to but not exceeding the amount of its Commitment, provided
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that the aggregate principal amount of all outstanding Loans and the aggregate
stated amount of all outstanding Letters of Credit immediately after the making
of each Loan and giving effect to the application of the proceeds thereof will
not exceed the Commitment. Within such limit, the Company may borrow, prepay,
repay and reborrow pursuant to this Article II.
Section 2.02. Manner of Borrowing. The Company shall give the Bank a
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duly completed Notice of Borrowing not later than 10:00 a.m. (New York City
time) on the date of such Loan. Each such Notice of Borrowing shall specify:
(i) the amount of such Loan, which shall be an amount of $10,000 or more; (ii)
the date of such Loan, which shall be a Business Day prior to the Final Maturity
Date; and (iii) the duration of the Interest Period applicable to such Loan,
which shall be a period permitted by the definition of "Interest Period" in
Section 1.01 hereof. The Bank shall give the Company telephonic notice,
confirmed by facsimile or other written notice, of the Term Federal Funds Rate
applicable to the relevant Loan before 12:00 noon (New York City time) on the
relevant borrowing date, which determination shall be conclusive, absent
manifest error. Subject to the conditions of this Agreement, the Bank shall
make such Loan by transferring the proceeds thereof in Dollars to the account
designated by the Company for such purpose not later than 4:30 p.m. (New York
time) on the relevant borrowing date.
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Section 2.03. Repayment of Principal. The Company shall repay the
----------------------
principal amount of each Loan on the last day of the Interest Period applicable
thereto.
Section 2.04. Payment of Interest. The Company shall pay interest on
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the unpaid principal amount of each Loan from the date of such Loan to the date
on which such Loan is paid in full at a rate equal to the sum of Term Federal
Funds Rate for such Loan plus 0.35% per annum. Accrued interest on each Loan
shall be payable on the last day of the Interest Period applicable thereto.
Section 2.05. Voluntary Prepayment. The Company may prepay any Loan
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in whole or in part at any time, provided that (a) any partial prepayment of a
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Loan must be in a minimum amount of $100,000, (b) the Company shall give the
Bank not less than 7 Business Days' prior notice of each prepayment and (c) each
prepayment shall be accompanied by the payment of accrued interest on the amount
prepaid to the date of prepayment and any additional amount owing under Section
2.06 hereof.
Section 2.06. Funding Losses. The Company will indemnify the Bank
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against, and on demand reimburse the Bank for, any loss, premium, penalty or
expense which the Bank may pay or incur (including, without limitation, any loss
or expense incurred by reason of the relending, depositing or other employment
of funds acquired by the Bank to fund any Loan) as a result of (a) any
prepayment or repayment of a Loan on a date prior to the last day of the
Interest Period applicable thereto, (b) any failure by the Company to borrow any
Loan on a date specified therefor in a Notice of Borrowing pursuant to Section
2.02 hereof, except to the extent such failure results from a default by the
Bank in making the requisite funds available to the Company hereunder or (c) any
failure by the Company to prepay any Loan on the date specified therefor in a
notice of prepayment delivered by the Company pursuant to Section 2.05 hereof.
The Bank shall furnish the Company with a certificate setting forth the basis
for determining any additional amount to be paid to it hereunder, and such
certificate shall be conclusive, absent manifest error, as to the contents
thereof.
Section 2.07. Note. The Loans shall be evidenced by a single
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Swingline Note payable to the order of the Bank. The amount of each Loan, the
Interest Period applicable thereto and each repayment or prepayment of principal
shall be endorsed by the Bank on the schedule annexed to and constituting a part
of such Swingline Note, provided that the failure to make or any error in making
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any such endorsement on such schedule shall not limit, extinguish or in any way
modify the obligation of the Company to repay such Loan. Such endorsements
shall be prima facie evidence of the aggregate unpaid principal amount of all
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Loans made by the Bank.
Section 2.08. The Letters of Credit. On the terms and subject to the
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conditions of this Agreement, the Bank shall issue
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Letters of Credit for the account of the Company, from time to time prior to the
Final Maturity Date, in an aggregate stated amount at any one time outstanding
up to but not exceeding the amount of its Commitment, provided that the
aggregate principal amount of all outstanding Loans and the aggregate stated
amount of all outstanding Letters of Credit immediately after the issuance of
each Letter of Credit will not exceed the Commitment.
Section 2.09. Manner of Issuance. The Company shall request each
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Letter of Credit not less than ten Business Days before the date on which Letter
of Credit is to be issued. Each such request shall be accompanied by the Bank's
standard form of Application and Agreement for Irrevocable Standby Credit (a
"Letter of Credit Agreement"), duly completed by the Company in a manner
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satisfactory to the Bank. Each such Letter of Credit Agreement shall specify,
among other things: (i) the amount of such Letter of Credit, which shall be an
amount of $10,000 or more; (ii) the date on which such Letter of Credit is to be
issued, which shall be a Business Day prior to the Final Maturity Date; and
(iii) the expiry date of such Letter of Credit, which shall be a date not later
than one year from the date of issuance of such Letter of Credit and not later
than the Final Maturity Date. Each Letter of Credit issued by the Bank pursuant
to this Article II shall be in form and substance satisfactory to the Bank.
Subject to the conditions of this Agreement, the Bank shall issue such Letter of
Credit as requested in such Letter of Credit Agreement.
Section 2.10. Reimbursement of Drawings. The Company shall reimburse
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each drawing under each Letter of Credit as provided in the Letter of Credit
Agreement related thereto.
Section 2.11. Letter of Credit Fee. The Company shall pay a letter of
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credit fee to the Bank on the stated amount of each Letter of Credit for the
period from the date on which such Letter of Credit is issued to the expiry date
thereof at a rate equal to 0.35% per annum. Such fee shall be payable on the
date on which such Letter of Credit is issued and shall be non-refundable.
ARTICLE III
CHANGE IN CIRCUMSTANCES
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Section 3.01. Increased Costs.
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(a) If, after the date of this Agreement, (i) the introduction of, or
any change in, any applicable law, rule or regulation or in the interpretation
or administration thereof by any Governmental Authority or (ii) compliance by
the Bank with any request, guideline, policy or directive of any Governmental
Authority issued after the date of this Agreement (whether or not having the
force of law) shall:
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(A) subject the Bank to any tax, duty or other charge or shall
change the basis of taxation of payments to the Bank of any amount due
under this Agreement or the Swingline Note (except for changes in the tax
on the overall net income of the Bank imposed by the jurisdiction of its
incorporation or the jurisdiction in which its Lending Office is located);
(B) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets or liabilities of, deposits
with or for the account of, or commitments issued by, the Bank (including,
without limitation, any such requirement imposed by the Board of Governors
of the Federal Reserve System); or
(C) impose on the Bank or the money markets any other condition
affecting its Commitment, any Loan, any Letter of Credit or the Swingline
Note;
and the result of any of the foregoing is to increase the cost to the Bank of
making or maintaining its Commitment, any Loan or any Letter of Credit, or to
reduce the amount of any sum received or receivable by the Bank under this
Agreement, under any Letter of Credit Agreement or under the Swingline Note,
then the Company shall from time to time pay to the Bank within ten Business
Days of its demand therefor such additional amount or amounts as will compensate
it for such increased cost or reduction.
(b) If the Bank shall have determined that, after the date of this
Agreement, the adoption of any applicable law, rule or regulation regarding
capital adequacy, or any change therein, or any change in the interpretation or
administration thereof by any Governmental Authority, or compliance by the Bank
(or, without duplication, the bank holding company of which the Bank is a
subsidiary) with any request, guideline, policy or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, has or
would have the effect of reducing the rate of return on the Bank's or its bank
holding company's capital as a consequence of any Loans, any Letters of Credit
or its obligations hereunder to a level below that which the Bank or its bank
holding company could have achieved but for such adoption, change or compliance
(taking into consideration the Bank's or the bank holding company's policies
with respect to capital adequacy), then the Company shall from time to time pay
to the Bank within ten Business Days of its demand therefor such additional
amount or amounts as will compensate the Bank or its bank holding company for
such reduction.
(c) The Bank will promptly give the Company notice of the occurrence
of any event of which it has knowledge which will entitle it to compensation
pursuant to this Section 3.01, and will use reasonable efforts to mitigate the
effect of any such event if, in the sole opinion of the Bank, such efforts will
avoid the need
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for, or reduce the amount of, such compensation and will not be otherwise
disadvantageous to it or contrary to its internal policies, provided that the
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failure of the Bank so to notify the Company will not discharge the Company of
its obligations under this Section 3.01. The Bank shall furnish the Company
with a certificate setting forth the basis for determining any additional amount
or amounts to be paid to it hereunder, and such certificate shall be conclusive,
absent manifest error, as to the contents thereof.
Section 3.02. Illegality. If, after the date of this Agreement, the
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introduction of, or any change in, any applicable law, rule or regulation or in
the interpretation or administration thereof by any Governmental Authority shall
make it unlawful for the Bank to make or maintain any Loan, then the Bank shall
give notice thereof to the Company and commence good faith negotiations with the
Company to determine a substitute basis for determining a rate of interest
payable to the Bank which would cure such illegality hereunder. If within 30
days of such notice to the Company, the Company and the Bank shall not have
agreed in writing to such a substitute basis, the Bank may declare such Loan to
be due and payable and the Company shall prepay such Loan in full on the last
day of the Interest Period applicable thereto unless such Loan is required by
law to be sooner repaid, in which case the Company shall repay such Loan on such
earlier date, together with accrued interest thereon and any additional amount
owing under Section 2.06 hereof. The Bank will promptly notify the Company of
any event of which the Bank has knowledge which will entitle it to the
provisions of this Section 3.02 and will designate a different Lending Office
if, in the sole opinion of the Bank, such designation will avoid the need for
such prepayment and will not be otherwise disadvantageous to it or contrary to
its internal policies.
Section 3.03. Taxes.
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(a) Each payment by the Company to the Bank under this Agreement or
any of the Related Documents shall be made free and clear of and without
deduction for any Taxes, other than any Taxes imposed on the overall net income
of the Bank by the jurisdiction of its incorporation or by the jurisdiction in
which its Lending Office is located (all such non-excluded Taxes being
hereinafter referred to as "Covered Taxes"). If the Company shall be required
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by law to deduct any Covered Taxes from or in respect of any such payment, then
(i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Bank receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Company shall
make such deductions and (iii) the Company shall pay on a timely basis the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
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(b) The Company will indemnify the Bank for the full amount of Covered
Taxes required to be paid by, or imposed, levied or assessed against the Bank.
In addition, the Company shall pay to the Bank such amounts as may be necessary
to hold the Bank harmless on an after-tax basis from any Taxes (including
without limitation, income or franchise taxes) imposed by any jurisdiction as a
result of the receipt or accrual by the Bank of any payment under this Section
3.03 (including any payment under this sentence). Any indemnification pursuant
to this Section 3.03(b) shall be made within 30 days from the date the Bank
makes written demand therefor. A certificate setting forth any amount payable
to the Bank under this Section 3.03 and the basis therefor submitted by the Bank
to the Company shall, absent manifest error, be conclusive and binding.
(c) Within 60 days after the date of any payment of Covered Taxes made
under this Section 3.03 or the withholding of any Taxes excluded from
indemnification under subsection (a) the Company will furnish to the Bank the
original or a certified copy of a receipt, accompanied by a certified English
translation if the receipt is not in English, evidencing payment thereof, a
statement signed by an officer responsible for the Company's financial or
accounting records setting forth the amount and identity of such Taxes
(specifying the particular provisions of law requiring such withholding), and
all additional information and documents that the Bank shall reasonably and in
writing request to establish that full and timely payment of such Covered Taxes
or other Taxes has been made. The Company will promptly notify the Bank of any
reports or returns that the Bank is required to file with respect to Covered
Taxes.
(d) Without prejudice to the survival of any other agreement of the
Company hereunder, the agreements and obligations of the Company contained in
this Section 3.03 shall survive the prepayment or payment in full or in part of
the Loans and the interest thereon and the termination of this Agreement or any
Related Document.
ARTICLE IV
FEES; PAYMENTS
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Section 4.01. Commitment Fee. The Company shall pay to the Bank a
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commitment fee in respect of each Computation Period from the date hereof to the
Final Maturity Date on the daily average amount of the Unused Commitment at a
per annum rate equal to 0.125%. On or before the first Business Day after each
Computation Period, the Bank shall notify the Company of the amount of the
commitment fee to be paid to it hereunder in respect of such Computation Period,
and the Company shall pay such amount to the Bank on or before the fifth
Business Day after the last day of such Computation Period.
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Section 4.02. Manner of Payments. Each payment required to be made
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by the Company under this Agreement or the Related Documents shall be made by
transferring the amount thereof in Dollars to the Bank not later than 4:30 p.m.
(New York City time) on the date on which such payment shall become due. Each
such payment shall be made without set-off or counterclaim; provided that no
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payment by the Company to the Bank pursuant to this Section 4.02 shall be deemed
a waiver of any rights the Company may have against the Bank. Any payment
received after 4:30 p.m. (New York City time) on any Business Day shall be
deemed to have been received on the next following Business Day.
Section 4.03. Extension of Payments. If any payment under this
---------------------
Agreement or the Related Documents shall become due on a day which is not a
Business Day, then the due date thereof shall be extended to the next following
day which is a Business Day, and such extension shall be taken into account in
computing the amount of any interest or fees then due and payable hereunder.
Section 4.04. Computation of Interest and Fees. All interest on Loans
--------------------------------
and all fees payable under this Agreement and the Related Documents shall be
computed on the basis of a year of 360 days and the actual number of days
elapsed.
ARTICLE V
CONDITIONS PRECEDENT
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Section 5.01. Initial Conditions. As a condition precedent to the
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Bank's obligation to make the initial Loan or issue the initial Letter of Credit
hereunder, the Bank shall have received the following items in form and
substance satisfactory to it:
(a) Related Documents. A counterpart hereof and of each of the
-----------------
Related Documents, each duly executed by the Company and each of the other
respective parties thereto;
(b) Company Documents. (i) A Certificate from the Secretary of State
-----------------
of the State of Indiana certifying that the Company is in good standing under
the laws of such state; (ii) a certificate from the Secretary of the Company,
substantially in the form of Exhibit D hereto, certifying (A) as to the
incumbency and signatures of the officers of the Company authorized to execute
and deliver this Agreement and the Related Documents to which the Company is a
party and any certificate to be furnished pursuant thereto, (B) that attached
thereto are true and complete copies of the Articles of Incorporation and By-
laws of the Company and (C) that attached thereto is a true and complete copy of
the resolutions of the Board of Directors of the Company authorizing the
execution, delivery and performance of this Agreement and the Related Documents
to which the Company is a party and the transactions contemplated thereby,
together with a certification by
11
another officer of the Company as to the incumbency and signature of such
Secretary; and (iii) a certificate from an appropriate officer of the Company
certifying that, to the best knowledge of such officer, the representations and
warranties contained in Article VI hereof are true and complete and no Default
has occurred and is continuing; and
(c) Additional Documents. Such other documents, certificates,
--------------------
financial or other information, or opinions as the Bank may reasonably request.
Section 5.02. Continuing Conditions. As a condition precedent to the
---------------------
Bank's obligation to make any Loan or issue any Letter of Credit hereunder,
including the initial Loan and the initial Letter of Credit, the following
conditions shall be satisfied on the date of such Loan or issuance of such
Letter of Credit:
(a) Representations True. The representations and warranties
--------------------
contained in Article VI hereof shall be true and correct with the same force and
effect as though made on and as of such date; and
(b) No Default. No Default shall have occurred and be continuing.
----------
On the date of each Loan and the issuance of each Letter of
Credit, the Company shall be deemed to have represented that all of the
conditions to the making of such Loan have been satisfied.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
------------------------------
The Company represents and warrants to the Bank that:
Section 6.01. Status. The Company (a) is a duly organized and validly
------
existing corporation in good standing under the laws of the State of Indiana,
(b) is duly licensed or qualified to do business and in good standing in each
jurisdiction where the failure to be so licensed or qualified could have a
Material Adverse Effect, and (c) has all requisite power and authority to own
its properties and conduct its business as presently conducted and to execute
and deliver, and to perform its obligations under, this Agreement and the
Related Documents to which it is a party. All of the issued and outstanding
capital stock of the Company is owned beneficially and of record by Sanwa USA.
Section 6.02. Subsidiaries. Each Significant Subsidiary (a) is a duly
------------
organized and validly existing corporation in good standing under the laws of
the jurisdiction of its incorporation and (b) has all requisite power and
authority to own its properties and conduct its business as presently conducted.
12
Section 6.03. Financial Condition. The consolidated statement of
-------------------
financial condition of the Company as of December 31, 1995 and the related
consolidated statements of operations, cash flows and shareholders' equity for
the fiscal year then ended, reported on by Ernst & Young LLP and set forth in
the Company's 1995 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present in all material respects in conformity with United States
generally accepted accounting principles, the consolidated financial position of
the Company and its subsidiaries as of such date and its consolidated results of
operations and cash flows for such fiscal year. Since September 30, 1996 there
has been no development or event which has had a Material Adverse Effect.
Section 6.04. Litigation. There is no action, suit, proceeding or
----------
investigation at law or in equity by or before any court, governmental body,
agency, commission or other tribunal now pending or, to the best knowledge of
the Company after due inquiry, threatened against or affecting the Company of
any of its Subsidiaries or any property or rights of the Company of any of its
Subsidiaries (a) which questions or would question the validity of this
Agreement or any of the Related Documents to which the Company is a party or (b)
as to which there is a likelihood of an adverse determination and which if
adversely determined will have a Material Adverse Effect.
Section 6.05. No Violation. The execution, delivery and performance
------------
of this Agreement and the Related Documents to which the Company is a party will
not (a) violate any existing law, rule or regulation applicable to the Company
or any provision of its Articles of Incorporation or By-laws, (b) conflict with,
result in a breach of, or constitute a default under, any terms or provisions of
any indenture, mortgage or other agreement or instrument to which the Company is
a party or by which it or any of its assets is bound, or any license, judgment,
order or decree of any government, governmental body or court having
jurisdiction over the Company or any of its activities or properties, or (c)
result in, or require the creation or imposition of, any Lien upon or with
respect to any properties now or hereafter owned by the Company.
Section 6.06. Binding Agreement. The execution, delivery and
-----------------
performance of this Agreement and the Related Documents to which the Company is
a party have been duly authorized by all necessary action of the Company. This
Agreement has been, and each Related Document to which the Company is a party
when executed and delivered will be, duly executed and delivered by the Company.
This Agreement constitutes, and each Related Document executed and delivered by
the Company will constitute, legal, valid and binding obligations of the
Company, enforceable according to their respective terms, subject, as to
enforceability, to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
13
Section 6.07. Authorizations. No authorizations, consents,
--------------
approvals, registrations, filings, exemptions and licenses with or from any
Governmental Authority are necessary for the borrowings hereunder, for the
execution and delivery of this Agreement or any Related Document to which the
Company is a party, or for the performance by the Company of its obligations
hereunder or thereunder.
Section 6.08. Investment Company Act. The Company is not an
----------------------
"investment company," as defined in the Investment Company Act of 1940, as
amended.
Section 6.09. Compliance with Laws. The Company and each of its
--------------------
Subsidiaries are in compliance with the requirements of all applicable Laws,
except those the non-compliance with which would not, singly or in the
aggregate, have a Material Adverse Effect.
Section 6.10. Taxes. The Company and its Subsidiaries have filed all
-----
United States Federal income tax returns and all other material tax returns
which are required to be filed by them (with the exception of eight state tax
returns for which the paid in taxes exceed the estimated tax liability) and have
paid all taxes thereby shown to be owing or owing pursuant to any assessment
received by the Company or any Subsidiary, except any such taxes or charges
which are being diligently contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with United States generally
accepted accounting principles shall have been set aside on the books of the
Company.
ARTICLE VII
AFFIRMATIVE COVENANTS
---------------------
The Company hereby covenants and agrees that until the Loans and all
other amounts owing hereunder have been paid in full and all Letters of Credit
and the Commitment shall have expired:
Section 7.01. Payment of Taxes. The Company will pay and discharge
----------------
all material taxes, assessments and governmental charges or levies imposed upon
it or upon its income or properties, prior to the date on which penalties attach
thereto, except to the extent that any such tax, assessment, charge or levy is
being contested in good faith by appropriate proceedings and for which adequate
reserves have been established by the Company or such Subsidiary.
Section 7.02. Preservation of Existence. The Company will, and will
-------------------------
cause each Subsidiary to, preserve and maintain its existence, rights,
franchises and privileges, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
14
Section 7.03. Compliance with Laws. The Company will, and will cause
--------------------
each Subsidiary to, comply with the requirements of all applicable Laws, non-
compliance with which could, singly or in the aggregate, have a Material Adverse
Effect.
Section 7.04. Keeping of Books and Records; Inspection. The Company
----------------------------------------
will, and will cause each Significant Subsidiary to, maintain a system of
accounting in accordance with United States generally accepted accounting
principles on a basis consistently applied. Upon reasonable notice from the
Bank, the Company will, and will cause each Subsidiary to, permit the Bank or
its representatives to have access to and examine and inspect the books and
records and properties of the Company and its Subsidiaries and confer with the
Company's and its Subsidiaries' officers, agents, employees and accountants at
any reasonable time and from time to time.
Section 7.05. Notice of Certain Events. The Company will promptly and
------------------------
in any event not more than three Business Days after obtaining knowledge thereof
notify the Bank of (a) the occurrence of any Default or (b) the commencement of
any litigation or governmental proceeding affecting the Company or any of its
Subsidiaries which, if adversely determined, would have a Material Adverse
Effect.
Section 7.06. Financial Statements and Other Information. The Company
------------------------------------------
will deliver to the Bank:
(a) as soon as available and in any event within 90 days after the end
of each of its fiscal years, an audited consolidated balance sheet of the
Company and its Subsidiaries at the end of such year and audited consolidated
statements of income, stockholders' equity and cash flows of the Company and its
Subsidiaries for such year, setting forth in each fiscal year in comparative
form the figures for the previous year, reported on without a "going concern" or
like qualification or exception, or qualification arising out of the scope of
the audit by internationally recognized independent certified public
accountants; and
(b) simultaneously with the delivery of each set of financial
statements referred to in clause (a) of this Section 7.06, a certificate of the
chief financial officer of the Company stating, to the best knowledge of such
officer after reasonable inquiry, whether there exists on the date of such
certificate any Default, and if any Default exists, specifying the nature and
period of existence thereof and the action the Company is taking and proposes to
take with respect thereto;
(c) as soon as available and in any event not later than 45 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Company, a copy of the unaudited consolidated balance sheet of the Company and
its Subsidiaries as at the end of each such fiscal quarter and the related
unaudited
15
consolidated statements of income, stockholders' equity and cash flows of the
Company and its Subsidiaries for such quarter and the portion of the fiscal year
through such date, all in reasonable detail and setting forth in comparative
form the figures for the corresponding period of the previous year; and
(d) from time to time, such additional information regarding the
financial condition, business or prospects of the Company or its Subsidiaries as
the Bank may reasonably request.
Section 7.07. Use of Proceeds. The Company will use the proceeds of
---------------
the Loans and request the issuance of Letters of Credit for its general
corporate purposes.
ARTICLE VIII
NEGATIVE COVENANTS
------------------
The Company hereby covenants and agrees that, until the Loans and all
other amounts owing hereunder have been paid in full and all Letters of Credit
and the Commitment shall have expired:
Section 8.01. Margin Regulations. The Company will not use the
------------------
proceeds of any Loans, directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of buying or carrying any "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve Board.
Section 8.02. Liens. The Company will not, and will not permit any
-----
Subsidiary to, create, incur, assume or permit to exist any Lien upon any asset
now owned or hereafter acquired by it, other than:
(a) Liens existing on the date of this Agreement securing Indebtedness
outstanding on the date of this Agreement;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or
--------
within 90 days after the acquisition thereof;
(d) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Company or a
Subsidiary and not created in contemplation of such event;
16
(e) any Lien existing on any asset prior to the acquisition thereof by
the Company or a Subsidiary and not created in contemplation of such
acquisition;
(f) and Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
--------
increased and is not secured by any additional assets;
(g) Liens arising in the ordinary course of its business which (i) do
not secure Indebtedness and (ii) do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operation of its business; and
(h) Liens not otherwise permitted by the foregoing clauses of this
Section securing Indebtedness in an aggregate principal amount at any time
outstanding not to exceed 5% of Consolidated Shareholders' Equity.
Section 8.03. Consolidations, Mergers, etc. The Company will not (a)
-----------------------------
merge with or into, or consolidate with, any other Person or (b) sell all or
substantially all of its assets, whether in one transaction or a series of
transactions, provided that the Company may merge with or into, or consolidate
--------
with, another Person if (i) the Company has given the Bank prior notice thereof,
(ii) either (A) the Company is the entity surviving such merger or (B) the
entity surviving such merger or consolidation shall enter into an agreement
satisfactory to the Bank assuming the Company's obligations under this Agreement
and the Related Documents to which it is a party and (iii) immediately after
giving effect to such merger or consolidation, no Default shall have occurred
and be continuing.
Section 8.04. Minimum Consolidated Shareholders' Equity. The Company
-----------------------------------------
will not permit Consolidated Shareholders' Equity, determined as of the end of
each fiscal year of the Company, to be less than $100,000,000.
ARTICLE IX
EVENTS OF DEFAULT
-----------------
Section 9.01. Events of Default. If any one or more of the following
-----------------
events (an "Event of Default") shall occur and be continuing, the Bank shall be
----------------
entitled to exercise the remedies set forth in Section 9.02 hereof.
(a) The Company shall default in the payment of (i) any principal when
due or (ii) any interest or other amount owing under this Agreement or any
Related Document to which it is a party within three Business Days of the date
when due; or
17
(b) The Company shall fail to perform or observe any covenant or
obligation contained in Article VIII hereof; or
(c) The Company shall fail to perform or observe any other covenant or
obligation of the Company pursuant to this Agreement or any Related Document to
which it is a party, and such failure shall continue for 30 days after notice
from the Bank; or
(d) Any representation or warranty made or deemed made by the Company
in this Agreement, any Related Document to which it is a party, or any
certificate, financial statement or other document delivered pursuant hereto or
thereto shall be false in any material respect on any date as of which made or
deemed made or shall be breached; or
(e) An "event of default" under and as defined in the Sanwa USA Term
Loan or the Overhead Door Revolver shall occur; or the Company, any Subsidiary
or the Guarantor shall default in the payment when due of any principal or
premium (if any) or interest on any Indebtedness having an aggregate principal
amount in excess of $1,000,000 (or the equivalent thereof in any other currency)
and such default shall continue beyond any applicable grace period, or, any
Subsidiary or the Guarantor shall fail to observe or perform any term or
provision of any instrument pursuant to which any such Indebtedness was created
or of any mortgage, indenture or other agreement relating thereto if the effect
of such failure is to cause or permit the acceleration or mandatory prepayment
or repurchase of such Indebtedness; or
(f) The entry of a decree or order for relief in respect of the
Company, any Significant Subsidiary or the Guarantor by a court having
jurisdiction in the premises, or the appointment of a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other similar official) of the
Company, any Significant Subsidiary or the Guarantor or of any substantial part
of its property, or ordering the winding up or liquidation of its affairs, in an
involuntary case under the Federal bankruptcy laws, as now or hereafter
constituted, or any other applicable Federal, state or foreign bankruptcy,
insolvency or other similar law; or the commencement against the Company, any
Significant Subsidiary or the Guarantor of an involuntary case under the Federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
Federal, state or foreign bankruptcy, insolvency or other similar law, and the
continuance of any such case unstayed and in effect for a period of 60
consecutive days; or
(g) The commencement by the Company, any Significant Subsidiary or the
Guarantor of a voluntary case under the Federal bankruptcy laws, as now or
hereafter constituted, or any other applicable Federal, state or foreign
bankruptcy, insolvency or other similar law, or the consent by it to the entry
of an order for relief in an involuntary case under any such law or the consent
by it to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or other
18
similar official) of the Company, any Significant Subsidiary or the Guarantor or
of any substantial part of its property, or the making by it of a general
assignment for the benefit of creditors, or the failure of the Company, any
Significant Subsidiary or the Guarantor generally to pay its debts as such debts
become due or the taking of any corporate action in furtherance of any of the
foregoing; or
(h) A final judgment or order for the payment of money not covered by
insurance shall be rendered against the Company, any Subsidiary or the Guarantor
in an aggregate amount in excess of $1,000,000 (or the equivalent thereof in any
other currency) and the same shall remain undischarged for a period of 60 days
during which execution of such judgment or order shall not be effectively
stayed; or
(i) The Guaranty shall cease to be in full force and effect or the
Guarantor shall so assert; or
(j) The Guarantor shall fail to perform or observe any covenant or
obligation contained in the Guaranty; or
(k) Any representation or warranty made or deemed made by the
Guarantor in the Guaranty or any certificate, financial statement or other
document delivered pursuant hereto or thereto shall not be true and complete in
any material respect on any date as of which made or deemed made or shall be
breached; or
(l) The Guarantor shall cease to own, directly or indirectly, 100% of
the issued and outstanding capital stock of the Company.
Section 9.02. Default Remedies. If any Event of Default shall occur
----------------
and be continuing, then and in every such event, and at any time thereafter
during the continuance of such Event of Default, the Bank may, by notice to the
Company, take one or more of the following actions: (a) reduce its Commitment
to zero and (b) declare its Loans and an amount equal to the aggregate stated
amount of all outstanding Letters of Credit to be forthwith due and payable,
whereupon its Loans and such amount shall become forthwith due and payable both
as to principal and interest together with all other amounts payable by the
Company to the Bank under this Agreement or any other Related Document to which
it is a party, without presentment, demand, protest or any other notice of any
kind, all of which are expressly waived; provided, however, that if the Event of
-------- -------
Default set forth in paragraph (f) or (g) of Section 9.01 hereof shall occur
with respect to the Company, then without any notice to the Company or any other
act by the Bank or any other Person, the Loans, interest thereon, the aggregate
stated amount of all outstanding Letters of Credit and all such other amounts
shall become forthwith due and payable, all without presentment, demand, protest
or notice of any kind, all of which are expressly waived.
19
Section 9.03. Setoff. The Bank is hereby authorized at any time and
------
from time to time, upon the occurrence and during the continuance of any Event
of Default, without prior notice to the Company, to the fullest extent permitted
by law, to set off and apply any and all balances, credits, deposits (general or
special, time or demand, provisional or final), accounts or monies at any time
held and other indebtedness at any time owing by the Bank at any of its branches
or affiliates to or for the account of the Company against any and all of the
amounts owing by the Company under this Agreement or the Related Documents to
which it is a party, whether or not the Bank shall have made any demand
hereunder or thereunder. The rights of the Bank under this Section 9.03 are in
addition to, and do not derogate from or impair, other rights and remedies
(including, without limitation, other rights of setoff) which any of them may
have.
Section 9.04. Default Interest. Notwithstanding any other provision
----------------
of this Agreement to the contrary, if the Company shall fail to pay any amount
owing to the Bank under this Agreement or any Related Document to which the
Company is a party when due (whether at stated due date, on acceleration or
otherwise), then the Company will pay interest to the Bank payable on demand, on
the amount in default from the date such payment became due until payment in
full at a rate equal to the rate which is 2% per annum over the higher of (a)
the rate then payable pursuant to Section 2.03 hereof and (b) the U.S. Dollar
prime rate of the Bank from time to time in effect.
Section 9.05. Funding Indemnities. The Company will indemnify the
-------------------
Bank against, and on demand reimburse the Bank for, any loss, premium, penalty
or expense which the Bank may pay or incur (including, without limitation, any
loss or expense incurred by reason of the relending, depositing or other
employment of funds acquired by the Bank to fund any Loan) as a result of any
acceleration of any Loan pursuant to Section 9.02 hereof. The Bank shall
furnish the Company with a certificate setting forth the basis for determining
any additional amount to be paid to it hereunder, and such certificate shall be
conclusive, absent manifest error, as to the contents thereof.
ARTICLE X
GENERAL PROVISIONS
------------------
Section 10.01. Assignment. (a) The Company may not assign its rights
----------
or obligations under this Agreement without the prior written consent of the
Bank, which consent may be given or withheld in the sole and absolute discretion
of the Bank. Subject to the foregoing, all provisions contained in this
Agreement or any document or agreement referred to herein or relating hereto
shall inure to the benefit of, and shall be binding upon, the Company, the Bank
and their respective successors and permitted assigns.
20
(b) The Bank may from time to time change the Lending Office of the
Bank at which any Loan is made or carried; provided that if at the time of any
--------
change from one Lending Office to another the effect thereof would be to
increase any amount payable by the Company under this Agreement then such change
shall not be made without the prior written consent of the Company.
Section 10.02. Amendments and Waivers. Any provision of this
----------------------
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the Company and the Bank.
Section 10.03. Notices. All notices, requests, demands and other
-------
communications to any party hereunder shall be in writing (including telecopier
or similar writing) and shall be given to such party at its address, or
telecopier number set forth below or such other address or telecopier number as
such party may hereafter specify by notice to the other parties listed below.
If to the Bank: The Sakura Bank, Limited
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
If to the Company: Overhead Door Corporation
0000 XXX Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Each such notice, request or other communication shall be effective when
actually received.
Section 10.04. Expenses; Indemnification. The Company agrees to pay
-------------------------
all out-of-pocket costs and expenses, including the reasonable fees and
disbursements of counsel, incurred by the Bank in connection with (i) the
preparation, execution and delivery of this Agreement and the Related Documents
and (ii) any amendments and waivers hereof or thereof. The Company also agrees
to pay all out-of-pocket costs and expenses, including the fees and
disbursements of counsel, incurred by the Bank in connection with the
enforcement of this Agreement or any of the Related Documents and the collection
of any amounts owing hereunder or thereunder. In addition, the Company will
indemnify the Bank against, and on demand reimburse the Bank for, any and all
liabilities, obligations, losses, damages, penalties, stamp and other similar
taxes, actions, judgments, costs, expenses or disbursements of any kind or
nature whatsoever which may at any time be imposed on, incurred by or asserted
against the Bank in any way relating to or arising out of this Agreement or the
Related Documents; provided that the Company shall not be liable for any of the
--------
foregoing to
21
the extent they arise from the gross negligence or willful misconduct of the
Bank. Notwithstanding anything in this Agreement to the contrary, the
provisions of this Section 10.04 shall survive the termination of this
Agreement.
Section 10.05. Cumulative Rights; No Waiver. The rights, powers and
----------------------------
remedies of the Bank hereunder are cumulative and in addition to all rights,
powers and remedies provided under any and all agreements between the Company
and the Bank relating hereto, at law, in equity or otherwise. Neither any delay
nor any omission by the Bank to exercise any right, power or remedy shall
operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise thereof or any exercise of any other
right, power or remedy.
Section 10.06. Counterparts. This Agreement may be executed in any
------------
number of counterparts and by different parties hereto on separate counterparts,
each of which counterparts, when executed and delivered, shall be deemed an
original and all of which counterparts, taken together, shall constitute one and
the same Agreement.
Section 10.07. Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 10.08. Headings. The Article and Section headings in this
--------
Agreement are for convenience of reference only and shall not affect the
interpretation hereof.
SECTION 10.09. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
INTERPRETED IN ALL RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, UNITED STATES OF AMERICA.
Section 10.10. Consent to Jurisdiction. The Company irrevocably
-----------------------
submits to the non-exclusive jurisdiction of the Federal courts of the United
States for the Southern District of New York and any court of the State of New
York located in New York City in any action, suit or proceeding against the
Company relating in any way to this Agreement or any of the Related Documents
and agrees that service of process in any such action, suit or proceeding may be
effected by mailing a copy thereof by registered or certified mail, or a form of
mail substantially equivalent thereto, addressed to it at its address as
provided for notices hereunder. Nothing herein shall affect the right of the
Bank to serve process in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against the Company in any other jurisdiction.
Each party agrees that a final judgment in any such suit, action, or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. The Company hereby irrevocably
22
waives, to the fullest extent permitted by applicable law, any objection which
it may now or hereafter have to the laying of venue of any action or proceeding
in the Federal Courts of the United States for the Southern District of New
York, or the Supreme Court of the State of New York, County of New York and any
claim that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
Section 10.11. Waiver of Jury Trial. The Company and the Bank each
--------------------
irrevocably waives any right it may now or hereafter have to a trial by jury in
respect of this Agreement.
23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
OVERHEAD DOOR CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xx. Xxxxx X. Xxxxxx
Title: Chairman and Chief
Executive Officer
THE SAKURA BANK, LIMITED
By: /s/ Xxxxxxxxx Xxxxx
---------------------------------
Name: Xx. Xxxxxxxxx Xxxxx
Title: Joint General Manager
