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Exhibit 4.5
AMENDMENT TO REVOLVING CREDIT AGREEMENT
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This Amendment to Revolving Credit Agreement (this "Amendment") is entered
into at Columbus, Ohio, by and among The Huntington National Bank, The Bank of
New York and Bank One, N.A., as lenders (the "Banks"); The Huntington National
Bank as agent (the "Agent"); and X.X. Xxxxx Corporation, as borrower (the
"Borrower"), as of the 17th day of March, 2000, in order to amend the Revolving
Credit Agreement entered into by and among the Banks and the Borrower as of the
28th day of February, 1996, (the "Credit Agreement").
Whereas, the parties to this Amendment desire to amend certain of the
provisions of the Credit Agreement, the Credit Agreement is hereby amended as
follows:
1. Section 1 of the Credit Agreement is hereby amended to recite
in its entirety as follows:
SECTION 1. COMMITMENTS.
1.1 BASIC COMMITMENT TERMS. The Borrower has applied
to the Banks for revolving credit loans up to an aggregate
principal amount of $42,000,000, the proceeds of which are to
be used by the Borrower for general corporate purposes,
including, without limitation, seasonal financing of inventory
and accounts receivable. Each of the Banks is willing to make
such loans to the Borrower upon the terms and subject to the
conditions hereinafter set forth up to a maximum aggregate
principal amount not in excess of the amount set forth
opposite its name below and otherwise in accordance with the
pro rata requirements of Section 4 hereof (said amount being
hereinafter called the "Commitment" of such Bank and
collectively called the "Commitments"):
BANK ADDRESS COMMITMENT
---- ------- ----------
The Bank of New York Xxx Xxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx, 00000 $14,000,000
The Huntington 00 Xxxxx Xxxx Xxxxxx
Xxxxxxxx Xxxx Xxxxxxxx, XX 00000 $14,000,000
Bank One, N.A. 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 $14,000,000
1.2 COMMITMENT LIMITATIONS. Notwithstanding the
foregoing, during the following periods in each year occurring
during the term of this Agreement
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the aggregate Commitments of the Banks (each Bank's individual
Commitment being one third (1/3) of the aggregate) shall be in
an amount equal to the lesser of the following amounts or the
amount to which the Commitments have been reduced pursuant to
Section 4.6 hereof.
PERIOD COMMITMENT
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From 01/01 through 01/31 $3,000,000
From 02/01 through 03/31 $15,000,000
From 04/01 through 06/30 $30,000,000
From 07/01 through 11/29 $42,000,000
From 11/30 through 12/31 $27,000,000
1.3 BORROWING BASE. Notwithstanding the foregoing
provisions of Sections 1.1 and 1.2, the aggregate principal
balance of the Loans at any time outstanding shall not exceed
the lesser of (a) the aggregate Commitments of the Banks,
reduced as provided in Section 1.2 and (b) the Borrowing Base
(as hereinafter defined). As used herein, "Borrowing Base"
shall mean the sum of (i) 80% of the Company's Eligible
Accounts plus (ii) 40% of the Company's Eligible Inventory.
2. Section 3.2 of the Credit Agreement is hereby amended to
recite in its entirety as follows:
"Alternate Base Rate" means, for any day, a rate per annum
equal to the higher of (a) the Prime Rate in effect on such
day or (b) the Federal Funds Rate in effect on such day plus
1/2 of 1%.
3. Section 3.21 of the Credit Agreement is hereby amended to
recite in its entirety as follows:
"Eurodollar Interest Rate" means a rate per annum equal to
LIBOR plus one and one-half percent (1.50%).
4. Section 3.39 of the Credit Agreement is hereby amended to
recite in its entirety as follows:
"Prime Rate" means the prime commercial rate of The
Huntington National Bank, as such rate is established and made
available from time to time based on its consideration of
economic, money market, business and competitive factors, and
it is not necessarily such Bank's most favored rate, such rate
to be adjusted
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automatically, without notice, on the effective date of any
change in such rate.
5. Section 3.43 of the Credit Agreement is hereby amended to
recite in its entirety as follows:
"Termination Date" means December 31, 2001, or such later
date(s) to which the Commitments may be extended from time to
time pursuant to the provisions of this Agreement.
6. A new Section 3.45 is hereby added to the Credit Agreement,
to read in its entirety as follows:
ELIGIBLE ACCOUNTS. The term "Eligible Accounts" means the
portion of the Borrower's accounts arising in the ordinary
course of the Borrower's business from the sale of goods or
services to an individual, partnership, corporation, limited
liability company or other entity (an "Account Debtor") that
the Agent determines, in its sole and reasonable discretion,
based on credit policies, market conditions, the Borrower's
business and other criteria, is eligible for inclusion in the
Borrowing Base. An account shall not be deemed an Eligible
Account unless such account is evidenced by an invoice or
other documentary evidence satisfactory to the Agent; is
unconditionally due and payable in U.S. dollars to the
Borrower from the Account Debtor; and meets all the following
requirements until it is collected in full: (a) the account is
due and payable (in U.S. dollars), exclusive of sales or other
taxes, not more than 60 days from the date of the original
invoice therefor and is not more than 60 days past-due, or if
a special dating program has been approved in writing by the
Agent, the account is due and payable on a date permitted by
the terms of such dating program and is not past-due; (b) the
account arises from the completed performance of a sale of
goods and/or related services, does not constitute a progress
billing or advance billing, a "xxxx and hold," guaranteed
sale, sale and return, or other repurchase and return basis,
and all such goods have been lawfully shipped (or related
services provided) and invoiced to the Account Debtor, and
upon the Agent's reasonable request, copies of all invoices,
together with all shipping documents and delivery receipts
evidencing such shipment having been delivered to the Agent;
(c) the account does not arise from a contract with any
government or agency thereof or from an individual; (d) the
account is not subject to any dispute, prior assignment,
claim, lien, subrogation rights, security interest, levy or
setoff; (e) the account is not subject to any credit, contra
account, allowance, adjustment, levy, return of goods, or
discount (collectively
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a "Contra"), provided, however, that unless the Account Debtor
has asserted a Contra, if the amount of the account exceeds
the amount of the Contra, such excess shall be considered for
eligibility if such excess meets all other requirements of
this section; (f) the account does not arise from an Affiliate
of the Borrower or any Subsidiary; (g) the account does not,
when added to all other accounts of the Account Debtor with
the Borrower, produce an aggregate indebtedness from the
Account Debtor of more than 30% of the total of all the
Borrower's Eligible Accounts; (h) the Account Debtor is not
subject to bankruptcy, receivership or similar proceedings and
is not insolvent; (i) the account is not evidenced by any
chattel paper, promissory note, payment instrument or written
agreement; (j) the account does not arise from an Account
Debtor whose mailing address is located outside the United
States unless (i) the payment for the goods which give rise to
such account is assured by an irrevocable letter of credit
received by the Borrower, such letter of credit is from a bank
acceptable to the Agent and is in form and substance
acceptable to the Agent, and payable in the full amount of the
account in United States dollars at a place of payment located
within the United States, and the proceeds of such letter of
credit have been duly assigned to the Agent, to its
satisfaction, or (ii) the aggregate amount of all accounts
outstanding of such Account Debtor with its mailing address or
chief executive office located outside the United States does
not exceed $1,000,000; provided, however, that, for the
purposes of this subsection, WalMart Canada shall not be
deemed an Account Debtor with a mailing address or chief
executive office located outside the United States; (k) the
account does not arise from an Account Debtor to whom goods
are shipped on a "cash on delivery" or C.O.D. basis; (l) the
account does not arise from an Account Debtor who has more
than 50% of its accounts with the Borrower more than 90 days
past due; and (m) the Agent has not notified the Borrower that
the account or the Account Debtor is unsatisfactory or
unacceptable (although the Agent reserves the right to do so
in its sole discretion at any time).
7. A new Section 3.46 is hereby added to the Credit Agreement,
to read in its entirety as follows:
ELIGIBLE INVENTORY. The term "Eligible Inventory" means that
portion of the Borrower's inventory, including finished goods
and raw materials related to its principal product lines,
subject to no Liens, and that the Agent determines in its sole
discretion from time to time, based on credit policies, market
conditions, the Borrower's business and other matters, is
eligible for use in calculating the Borrowing Base. For
purposes of determining the Borrowing Base, Eligible
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Inventory shall not include tooling, work in process, slow
moving, obsolete or discontinued inventory, supply items,
packaging, or the freight portion of raw materials, inventory
in the control of a third Person for processing or storage,
consigned inventory, or inventory in transit. All inventory
shall be valued at the lesser of cost (on a FIFO basis) or
market.
8. A new Section 3.47 is hereby added to the Credit Agreement,
to read in its entirety as follows:
REQUIRED BANKS. "Required Banks" means Banks holding at least
66-2/3% in dollar amount of the aggregate Loans outstanding
under this Agreement, or, in the event there are no amounts
outstanding, 66-2/3% of the aggregate Commitments.
9. Section 4.1 of the Credit Agreement is hereby amended to
recite in its entirety as follows:
AMOUNT OF REVOLVING CREDIT. Relying on the foregoing
representations and warranties and subject to the agreements
and covenants hereinafter contained, each Bank agrees to make
Loans (which may be either Domestic Loans or Eurodollar Loans,
or any combination) to the Borrower, from time to time from
the date hereof to the Termination Date, at such times and in
such amounts as the Borrower shall request, in the aggregate
not in excess of such Bank's Commitment. The Borrower shall
give the Agent written or telephonic notice by 12:00 Noon,
Columbus, Ohio, time, three Business Days prior to the date of
intended borrowing with respect to any Eurodollar Loan
hereunder and written or telephonic notice by 10:00 a.m.,
Columbus, Ohio, time, on the same Business Day with respect to
any Domestic Loan, which notice shall specify the proposed
date of borrowing, the amount thereof, whether such loan is to
be a Domestic Loan or a Eurodollar Loan, and if a Eurodollar
Loan, the Interest Period selected. The Agent shall notify the
Borrower of the relevant Eurodollar Interest Rate at
approximately 11:00 a.m., Columbus, Ohio, time, two Business
Days prior to the date of intended borrowing. The Borrower
shall accept or reject such Eurodollar Rate upon such
notification, and such acceptance or rejection shall be
irrevocable. In the event of rejection such Loan shall be a
Domestic Loan. Each Loan shall be in the amount of $100,000 or
an integral multiple thereof in the case of a Domestic Loan or
in an amount of not less than $1,000,000 and increments of
$250,000 thereafter in the case of a Eurodollar Loan.
Notwithstanding the foregoing, the Borrower shall not have
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outstanding any more than seventeen (17) Eurodollar Loans per
Bank at any one time. The Loans shall be evidenced by
Revolving Credit Notes (as defined in Section 4.2 hereof).
10. An additional sentence is added to Section 8.1 of the
Agreement, to read in its entirety as follows:
The Borrower will furnish to the Banks within 20 days of the
end of each fiscal month a certificate in the form of EXHIBIT
8.1 signed by its chief financial officer setting forth the
calculation of the Borrowing Base as of the end of such month.
11. Section 9.5 of the Credit Agreement is hereby amended to
read in its entirety as follows:
INTEREST COVERAGE. Permit the ratio of Consolidated Net Income
PLUS Consolidated Net Interest Expense, consolidated taxes,
consolidated amortization and consolidated depreciation to
Consolidated Net Interest Expense to be less than 1.3 to 1.0
on a four quarter rolling basis; provided, however, that
compliance with this section will not be required for the
three consecutive fiscal quarters ending on September 30,
2000.
12. A new Section 9.17 is hereby added to the Credit Agreement
to read in its entirety as follows:
EBITDA. Permit Consolidated Net Income PLUS Consolidated Net
Interest Expense, consolidated taxes, consolidated
amortization and consolidated depreciation ("EBITDA") to be
less than the following amounts for each of the following
fiscal quarters:
QUARTER ENDING EBITDA
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April 1, 2000 ($6,500,000)
July 1, 2000 ($3,500,000)
September 30, 2000 $6,500,000
In testing compliance with this section, the Borrower shall be
permitted to carry over any amount of EBITDA not exceeding
$1,500,000 achieved in the previous fiscal quarter that
exceeds the amount required by this section.
13. Section 12 of the Credit Agreement is hereby amended to
recite in its entirety as follows:
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SECTION 12. APPOINTMENT OF AGENT; ARRANGEMENT BETWEEN THE
BANKS.
12.1 APPOINTMENT.
Each Bank hereby designates The Huntington National
Bank to act as Agent for such Bank under this Agreement and
the Loan Documents. Each Bank hereby irrevocably authorizes
the Agent to take such action on its behalf under the
provisions of this Agreement and any other instruments and
agreements referred to herein and to exercise such powers and
to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the
terms hereof and thereof and such other powers as are
reasonably incidental thereto, including amendments to this
Agreement not otherwise specifically discussed herein. The
Agent shall hold all payments of principal and interest, fees
(except the agency fee), charges and collections received
pursuant to this Agreement, for the benefit of the Banks as
provided herein. The Agent shall receive from the Borrower and
distribute to the Banks all information required by the terms
of this Agreement to be delivered by the Borrower to the
Banks. The Agent may perform any of its duties hereunder by or
through its agents or employees. As to any matters not
expressly provided for by this Agreement, the Agent shall not
be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall
be fully protected in so acting or refraining from acting)
upon the instructions of the Required Banks; PROVIDED,
HOWEVER, that the Agent shall not be required to take any
action that exposes the Agent to liability or which is
contrary to any of the Loan Documents or applicable law unless
the Agent is furnished with an indemnification reasonably
satisfactory to the Agent with respect thereto. The Borrower
agrees to pay to the Agent in advance, on March 17 of each
year, an agency fee in the amount of $10,000.
12.2 NATURE OF DUTIES.
The Agent shall not have any duties or
responsibilities except those expressly set forth in this
Agreement. Neither the Agent nor any of the Agent's officers,
directors, employees or agents shall be (a) liable for any
action taken or omitted by them as such hereunder or in
connection herewith, unless caused by their willful misconduct
or gross negligence, or (b) responsible in any manner to any
Bank for any recitals, statements, representations or
warranties made by the
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Borrower or any officer thereof contained in this Agreement,
or in any of the Loan Documents or in any certificate, report,
statement or other document referred to or provided for in, or
received by the Agent under or in connection with this
Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement
or any of the Loan Documents or for any failure of the
Borrower to perform its obligations hereunder. The Agent shall
not be under any obligation to any Bank to ascertain or to
inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or
any of the Loan Documents, or to inspect the properties, books
or records of the Borrower. The duties of the Agent shall be
mechanical and administrative in nature; the Agent shall not
have by reason of this Agreement a fiduciary relationship in
respect of any Bank; and nothing in this Agreement, expressed
or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of this
Agreement except as expressly set forth herein.
12.3 LACK OF RELIANCE ON THE AGENT; RESIGNATION.
Independently and without reliance upon the Agent, each
Bank has made and shall continue to make (a) its own
independent investigation of the financial condition and
affairs of the Borrower in connection with the making and the
continuance of the Loans hereunder and the taking or
refraining from taking of any action in connection herewith,
and (b) its own credit analysis or appraisal of the
creditworthiness of the Borrower. In addition, each Bank has
reviewed and approved the form and substance of each of the
Loan Documents. The Agent shall not have any duty or
responsibility either initially or on a continuing basis to
provide any Bank with any credit or other information with
respect thereto, whether coming into its possession before
the making of the Loans or at any time or times thereafter.
The Agent has not made any representation or warranty,
express or implied, with respect to, and shall not be
responsible to any Bank for (a) any recitals, statements,
information, representations or warranties contained in this
Agreement, the Loan Documents, or in any agreement, document,
certificate or a statement delivered in connection herewith;
(b) the execution, effectiveness, genuineness, validity,
collectibility or sufficiency of this Agreement; or of the
financial condition or creditworthiness of the Borrower; (c)
the collectibility of the Loans, or (d) any other matter
having any relation to this Agreement, the Loans or the Loan
Documents. The Agent shall not be required to make any
inquiry concerning either the performance or observance of
any of the terms, provisions or
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conditions of this Agreement or the Loan Documents, or the
financial condition or creditworthiness of Borrower or the
existence of any Event of Default or any condition, event or
act that, with notice or lapse of time or both, would
constitute such an Event of Default.
The Agent shall have the right to resign on thirty
days' written notice to the Banks, and upon such resignation,
the Required Banks shall designate a successor agent. The
Required Banks, with the consent of the Borrower if there is
then existing no Event of Default, shall have the right to
remove the Agent based upon the failure of the Agent to
perform the duties described in this Agreement and to appoint
a successor Agent. The consent of the Borrower shall not be
unreasonably withheld. Any successor agent shall succeed to
the rights, powers and duties of the Agent, and the term
"Agent" shall mean such respective successor agent effective
upon its appointment, and the former Agent's rights, powers
and duties as Agent shall be terminated, without any other or
further act or deed on the part of such former Agent. After
any Agent's resignation or removal hereunder, the provisions
of this section shall continue to inure to its benefit as to
any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
12.4 CERTAIN RIGHTS OF THE AGENT.
Subject to the provisions of this Agreement, if the
Agent shall request instructions from the Banks with respect
to any act or action (including failure to act) in connection
with this Agreement, the Agent shall be entitled to refrain
from such act or taking such action unless and until the Agent
shall have received instructions from the Required Banks; and
the Agent shall not incur liability to any Bank or any other
party by reason of so refraining. Without limiting the
foregoing, none of the Banks shall have any right of action
whatsoever against the Agent as a result of its acting or
refraining from acting hereunder in accordance with the
instructions of the Required Banks. In the event that the
Agent at any time requests approval for any proposed course of
action relating to the Loans or this Agreement and any one or
more of the Banks fails to respond in writing within thirty
calendar days of the date of such request, each Bank so
failing to respond shall be conclusively deemed to have given
its approval to such proposed action.
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12.5 RELIANCE.
The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, affidavit
resolution, notice, statement, certificate, telex, teletype or
telecopier message, cablegram, order or other document or
telephone message believed by it to be genuine and correct
and, with respect to all legal matters pertaining to this
Agreement and its duties hereunder, upon advice and statements
of legal counsel (including, without limitation, counsel to
the Borrower), independent accountants and other experts
selected by the Agent. The Agent may employ agents and
attorneys-in-fact and shall not be liable for the default or
misconduct of any such agents or attorneys-in-fact selected by
the Agent.
12.6 NOTICE OF DEFAULT.
The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default hereunder or
under the Loan Documents, unless the Agent has received
written notice from a Bank or the Borrower referring to this
Agreement, describing such Event of Default and stating that
such notice is a "notice of default." In the event that the
Agent receives such a notice, the Agent shall promptly give
notice thereof to each Bank. The Agent shall take such action
with respect to such Event of Default as shall be reasonably
directed by the Required Banks; PROVIDED that unless and until
the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Event of Default
as they shall deem advisable in the best interests of the
Banks.
12.7 INDEMNIFICATION.
To the extent the Agent is not reimbursed and
indemnified by the Borrower, each Bank will reimburse and
indemnify the Agent pro rata in proportion to its Commitment
Limit for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever
which at any time (including, without limitation, at any time
following the payment of the Loans) may be imposed on,
incurred by or asserted against the Agent in performing its
duties hereunder, or in any way relating to or arising out of
this Agreement, the Loan Documents, or any documents
contemplated by or referred to therein or the transactions
contemplated thereby or any action taken or omitted by the
Agent in any such capacity thereunder or in
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connection therewith; provided that, the Banks shall not be
liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Agent's willful
misconduct or gross negligence. The provisions of this Section
12.7 shall survive the termination of this Agreement and the
payment in full of all notes outstanding pursuant hereto.
12.8 THE AGENT IN ITS INDIVIDUAL CAPACITY.
The Agent and its affiliates may accept deposits
from, make loans or otherwise extend credit to, and generally
engage in any kind of banking or trust business with, the
Borrower or its affiliates, and receive payment on such loans
or extensions of credit or otherwise act with respect thereto
fully and without accountability to the Banks in the same
manner as if the Agent was not performing the duties specified
herein and the transactions described herein were not in
effect. Each of the Banks and their affiliates shall have the
right similarly to engage in such banking or trust business
with the Borrower and its affiliates.
No Bank shall have an interest in any property taken
as collateral or security for any loans or extensions of
credit made by another Bank, the Agent, or any of their
respective affiliates or in any property in any such party's
possession or control, or in any deposit held or other
indebtedness owing by any such party or its affiliates, which
may be or become collateral for or otherwise available for
payment of the Loans by reason of the general description of
secured obligations contained in any security agreement or
other instrument held by such party or by reason of the right
of set off, counterclaim or otherwise, except that if such
property, deposit or indebtedness or the proceeds thereof
shall be applied in reduction of the Loans, each Bank shall be
entitled to its pro rata percentage of such application. The
Agent shall not have any obligation to make any claim against,
or assert any lien upon or right of set off against, any such
property held by the Agent or any of the Banks.
12.9 AMENDMENT AND MODIFICATIONS.
The Agent may, subject to the provisions of this
Section 12.9, and to the other provisions of this Agreement
requiring the approval of certain matters by the Banks or the
Required Banks, from time to time enter into written
amendments or supplemental agreements to this Agreement or to
the Loan Documents executed by the Borrower
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(other than the notes delivered by the Borrower to the Banks),
for the purpose of adding or deleting any provisions of this
Agreement or the Loan Documents, or otherwise changing,
varying or waiving in any manner the rights of the Banks, the
Agent or the Borrower thereunder or the conditions, provisions
or terms thereof, or waiving any Event of Default thereunder,
but only to the extent specified in such written agreements;
provided, however, that no such amendment or supplemental
agreement shall without the consent of all the Banks: (a)
extend the maturity of the Loans, or waive or extend the time
for the payment of principal, interest or fees, (b) increase
the principal amount of the Loans, (c) decrease the rate or
rates of interest thereon or any fee payable by the Borrower
to the Banks pursuant to this Agreement, (d) alter or amend
the provisions of Section 9.17, (e) alter, amend or modify the
automatic nature of an Event of Default pursuant to Sections
13.1.5 or 13.1.6, (f) alter, amend or modify this Section 12.9
or any section providing a right of approval to the Banks or
the Required Banks, (g) alter the meaning of the term Required
Banks, or (h) change the rights and duties of the Agent. Any
such amendment or supplemental agreement shall be binding upon
the Borrower, the Banks, the Agent and any of them, and a copy
thereof shall be delivered by the Agent to each of the Banks
promptly upon execution. No waiver of a specific Event of
Default shall extend to any subsequent Event of Default
(whether or not the subsequent Event of Default is the same as
the Event of Default which was waived), or impair any right
consequent thereon.
12.10 PRO RATA TREATMENT AND PAYMENTS.
Each borrowing or extension of credit under the Loans
from the Banks, each payment (including each prepayment) by
the Borrower of principal, interest, and fees (except the
agency fee) provided for in the Agreement on the Loans and all
proceeds from any liquidation of collateral shall be made or
applied pro rata pursuant to the respective Commitment Limits
of the Banks; provided that no Commitment Fee shall be payable
to any Bank that may have ceased to fund its Pro Rata Share of
Advances hereunder.
12.11 FUNDING OF ADVANCES.
On the date of the closing of the Loans or any later
date when funds are to be disbursed to the Borrower pursuant
to the Loans, each Bank shall pay to the Agent its Pro Rata
Share of the amount of the disbursement, in funds available
for immediate use, by 1:00 p.m. Columbus, Ohio, time on the
same banking day on which any Loan is
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made, provided, however, that the Agent shall give each Bank
notice of a Eurodollar Loan promptly after notice is received
from the Borrower and shall give each Bank notice of the
funding of a Domestic Loan no later than 12:00 Noon, Columbus,
Ohio, time on the banking day on which the Loan is to be made.
In the event any Bank fails or refuses to make payment to the
Agent as required herein, then the Agent shall be entitled to
pursue all remedies and rights permitted by this Agreement,
law, or equity and further shall be entitled to, but not be
required to, do all or any of the following: (a) fund such
Bank's Pro Rata Share of the disbursement, (b) accrue interest
on any unpaid amount at the Federal Funds Rate, (c) withhold
from such Bank all interest, principal, fees and late charges
attributable to such Bank's Pro Rata Share thereof through the
date such Bank funds its Pro Rata Share thereof and pays the
interest due thereon, plus any additional cost or expense,
including without limitation, reasonable attorneys fees,
incurred by the Agent as a result of such Bank's failure to
pay, and (d) offset against such Bank's Pro Rata Share all
sums received by the Agent in connection with the Loan until
reimbursed by the Bank that failed or refused to make such
payment. All payments received by the Agent in respect of the
Loans shall be distributed pro rata to the Banks promptly
after the Agent shall have collected such payment in
immediately available funds.
12.12 DELINQUENCY.
Upon the occurrence and continuance of an Event of
Default pursuant to this Agreement, the Agent shall consult
with each Bank regarding the course of action to be taken with
respect to such default. If the Agent does not receive an
agreed course of action to be taken from the Required Banks,
the Agent thereafter shall take such action as it shall in
good xxxxx xxxx necessary to protect the interests of the
Banks, including, but not limited to, acceleration of the
Loans. In the event that the Agent shall have received no
direction from the Required Banks and shall be unable to agree
on a course of action, the AGENT shall, as agent for and in
the name of the Banks, promptly institute all such civil
actions as may be required to obtain judgments on all
promissory notes evidencing the Loans. The failure of the
Agent or any Bank to discuss any proposed course of conduct
with any other Bank or the Agent shall not be asserted by the
Borrower to be a breach of this Agreement by the Agent or such
Bank, nor will it in any way impair the enforceability of any
action taken to declare the Loans in default and/or accelerate
the maturity thereof.
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12.13 EQUALIZATION.
(a) If any Bank (a "Benefitted Bank") shall at any
time receive any payment of all or part of its Pro Rata Share
of the Loans, or interest thereon, or receive any property in
respect thereof (whether voluntarily or involuntarily by
set-off) in a greater proportion than any such payment to and
property received by any other Bank, in respect of such other
Bank's Pro Rata Share of the Loans, or interest thereon, and
such greater proportionate payment or receipt of property is
not expressly permitted hereunder, such Benefitted Bank shall
purchase for cash from the other Bank such portion of each
such other Bank's Pro Rata Share of the Loans, or shall
provide such other Bank with the benefits of any such
property, or the proceeds thereof, as shall be necessary to
cause such Benefitted Bank to share the excess payment or
benefits of such collateral or proceeds ratably with each
Bank; PROVIDED, HOWEVER, that if all or any portion of such
excess payment or benefits is thereafter recovered from such
Benefitted Bank, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agree that each
Bank so purchasing a portion of another Bank's Pro Rata Share
of the Loans may exercise all rights of payment (including,
without limitation, rights of set-off) with respect to such
portion as fully as if such Bank were the direct holder of
such portion.
(b) In addition to any rights and remedies of the
Agent and the Banks provided by law, upon the occurrence of an
Event of Default pursuant to this Agreement, each Bank shall
have the right, without prior notice to the Borrower, any such
notice being expressly waived by the Borrower, to the extent
permitted by applicable law, to set off and apply against any
indebtedness, at, or at any time after, the occurrence of any
of the above-mentioned events. To the extent permitted by
applicable law, the aforesaid right of set off may be
exercised by such Bank against the Borrower or against any
trustee in bankruptcy, custodian, debtor-in-possession,
assignee for the benefit of creditors, receiver or execution,
judgment or attachment creditor of the Borrower, or against
anyone else claiming through or against the Borrower or
against any such trustee in bankruptcy, custodian,
debtor-in-possession, assignee for the benefit of creditors,
receivers, or execution, judgment or attachment creditor,
notwithstanding the fact that any such right of set off shall
not have been exercised by such Bank prior to the making,
filing or issuance, or service upon such Bank of, notice of,
any such petition, assignment for the benefit
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15
of creditors, appointment or application for the appointment
of a receiver, or issuance of execution, subpoena, order or
warrant.
12.14 ASSIGNMENT OF INTERESTS.
(a) This Agreement and the Loan Documents shall be
binding upon and inure to the benefit of the Borrower, the
Banks, the Agent, all future holders of the promissory notes
and guarantees comprising a portion of the Loan Documents and
their respective successors and assigns, except that the
Borrower may not assign or transfer any of its rights or
obligations under this Agreement or the Loan Documents without
the prior written consent of each Bank.
(b) Each Bank shall have the right at any time, upon
the written approval of the Agent and the Borrower (which
approval of the Borrower shall not be required if there has
occurred and is continuing an Event of Default) following
notice of its intent to do so, to sell, assign, transfer or
negotiate all or any part of its Pro Rata Share of the Loans
to one or more other financial institutions upon the payment
to the Agent of an assignment fee in the amount of $3,000. The
approval of the Agent and the Borrower shall not be
unreasonably withheld. Every such sale, transfer or
assignment, other than the sale of a participation interest
only, shall be in the minimum amount of $5,000,000. Subject to
the provisions of Section 12.14(c), any Bank may sell
participation interests without the approval of any other
party.
(c) No Bank shall, as between and among the Borrower,
the Agent and such Bank, be relieved of any of its obligations
hereunder as a result of any sale of a participation interest
in all or any part of its interest in the Loans, and each such
selling Bank shall have the obligation to subservice all such
participation interests sold.
14. The Borrower represents and warrants that no Event of Default has
occurred and is continuing, nor will any occur immediately after the execution
and delivery of this Amendment by the performance or observance of any provision
hereof.
15. Each reference to the Credit Agreement, whether by use of the
phrase "Credit Agreement," "Agreement," the prefix "herein" or any other term,
and whether contained in the Credit Agreement itself, in this Amendment, in any
document executed concurrently herewith or in any loan documents executed
hereafter, shall be construed as a reference to the Credit Agreement as
previously amended and as amended by this Amendment.
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16
16. Except as previously amended and as modified herein, the Credit
Agreement and the Loan Documents shall remain as written originally and in full
force and effect in all respects, and nothing herein shall affect, modify, limit
or impair any of the rights and powers which the Banks may have thereunder.
17. The Borrower agrees to perform and observe all the covenants,
agreements, stipulations and conditions to be performed on its part under the
Credit Agreement, the promissory notes executed and delivered in connection
herewith, the Loan Documents, and all other related agreements, as amended by
this Amendment.
18. The Borrower hereby represents and warrants to the Agent and the
Banks that (a) the Borrower has legal power and authority to execute and deliver
the within Amendment; (b) the respective officer executing the within Amendment
on behalf of the Borrower has been duly authorized to execute and deliver the
same and bind the Borrower with respect to the provisions provided for herein;
(c) the execution by the Borrower and the performance and observance by the
Borrower of the provisions hereof do not violate or conflict with the articles
of incorporation, regulations or by-laws of the Borrower or any law applicable
to the Borrower or result in the breach of any provision of or constitute a
default under any agreement, instrument or document binding upon or enforceable
against the Borrower; and (d) this Amendment and the promissory notes executed
and delivered in connection herewith, constitute valid and legally binding
obligations upon the Borrower, subject to applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally, to
general equitable principles and to applicable doctrines of commercial
reasonableness.
19. This Amendment shall become effective only upon its execution by
the Borrower, the Banks and the Agent; the execution and delivery by the
Borrower to each Bank of a promissory note substantially in the form attached
hereto as Exhibit "A", payable to the order of such Bank, duly executed on
behalf of the Borrower, and dated the date of this Amendment; the payment by the
Borrower of the agency fee due March 17, 2000; and the payment by the Borrower
of the unpaid portion of the waiver fee due in connection with the consent to
the existence of an Event of Default granted by the Banks effective as of
December 31, 1999. Execution of this Amendment by the parties hereto may be in
any number of counterparts, but all of such counterparts when taken together
shall constitute one and the same document.
20. The capitalized terms used herein shall have the same meanings as
the capitalized terms used in the Credit Agreement.
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IN WITNESS WHEREOF, the Borrower, the Banks and the Agent have hereunto
set their hands as of the 17th day of March, 2000.
ATTEST: X. X. XXXXX CORPORATION
/S/ Xxxx Xxxxxxxx By: /S/ Xxxxxxx Xxxxxxxx
------------------------------------ --------------------
Xxxxxxx X. Xxxxxxxx, Vice President
THE HUNTINGTON NATIONAL BANK,
Individually and as Agent
By: /S/ Xxxxxxxxx X. Xxxxxx
-------------------------
Xxxxxxxxx X. Xxxxxx, Senior Vice President
THE BANK OF NEW YORK
By: /S/ Xxxxxxx X. Xxxxxx Xx.
-------------------------
Xxxxxxx X. Xxxxxx, Xx., Vice President
BANK ONE, N.A.
By: /S/ Xxxxxx Xxxxxxx
-------------------------
Xxxxxx Xxxxxxx, Managing Director
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EXHIBIT A
REVOLVING CREDIT NOTE
March __, 2000 $14,000,000
FOR VALUE RECEIVED, the undersigned, X. X. XXXXX CORPORATION, an Ohio
corporation, promises to pay to ______________________________________
(hereinafter called the "Bank") or order, at its office at
_________________________, ______________________, in lawful money of the United
States of America and in immediately available funds, the principal sum of
Fourteen Million Dollars ($14,000,000), or such lesser amount as is then
outstanding under this Note as indicated on the records of the Bank, for money
loaned with interest upon the unpaid principal balance hereof from time to time
outstanding, payable, in like money and funds, in arrears on each interest due
date after the date hereof.
This Note evidences Eurodollar Loans and/or Domestic Loans and shall
bear interest at the rates, respectively, specified in the Credit Agreement
described below, which is incorporated herein by reference. Such interest shall
be payable on a Domestic Loan on the last Business Day of each March, June,
September and December beginning March 31, 2000, and on the date of conversion
thereof to a Eurodollar Loan. Interest shall be payable on a Eurodollar Loan on
each Interest Payment Date. Interest will be computed on the basis of a 360-day
year for the actual number of days in each Interest Period. After an Event of
Default or after maturity, whether by acceleration or otherwise, this Note shall
bear interest at the highest rate permitted by applicable law not to exceed 150%
of the Prime Rate.
This Note represents Loans made pursuant to the Bank's Commitment under
the Revolving Credit Agreement dated as of February 28, 1996, as it has been and
may be from time to time amended (the "Credit Agreement"), among the
undersigned, the Bank and certain other banks, and the terms and conditions set
forth in the Credit Agreement shall be considered a part hereof to the same
extent as if written herein, and upon the occurrence of an Event of Default as
defined in the Credit Agreement, the entire principal sum and any accrued
interest on this Note shall, at the option of the holder of this Note except as
to any event or condition described in Section 13.1.5 or 13.1.6 of the Credit
Agreement, at once and without notice become due and payable. Capitalized terms
used but not defined in this Note shall have the respective meanings assigned to
them in the Credit Agreement. The entire unpaid principal and interest on this
Note shall be due and payable on the Termination Date.
The Bank is hereby authorized by the undersigned to note on a schedule
attached to this Note the date, amount and type of each Loan, the interest rate
and duration of the related Interest Period (if applicable), and the amount of
each payment or prepayment of principal thereon, which schedule shall constitute
PRIMA FACIE evidence of the information so noted, provided, that any failure by
the Bank to make any such notation shall not relieve the undersigned of its
obligation to repay the outstanding principal amount of this Note, all accrued
interest hereon and any other amounts payable in accordance with the terms of
this Note and the Credit Agreement.
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All parties to this Note, including endorsers, sureties and guarantors,
if any, hereby waive presentment for payment, demand, protest, notice of
non-payment or dishonor, and of protest, and any and all other notices and
demands whatsoever, and agree to remain bound until the interest and principal
are paid in full notwithstanding any extension or extensions of time for payment
which may be granted, even though the period of extension may be indefinite, and
notwithstanding any inaction by, or failure to assert any legal right available
to, the holder of this Note.
This Note shall be construed in accordance with and governed by the
laws of the State of Ohio.
WAIVER OF RIGHT TO TRIAL BY JURY
--------------------------------
THE UNDERSIGNED ACKNOWLEDGES THAT, AS TO ANY AND ALL DISPUTES THAT MAY
ARISE BETWEEN THE UNDERSIGNED AND THE BANK, THE COMMERCIAL NATURE OF THE
TRANSACTION OUT OF WHICH THIS NOTE ARISES WOULD MAKE ANY SUCH DISPUTE UNSUITABLE
FOR TRIAL BY JURY. ACCORDINGLY, THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO TRIAL
BY JURY AS TO ANY AND ALL DISPUTES THAT MAY ARISE RELATING TO THIS NOTE OR TO
ANY OF THE OTHER INSTRUMENTS OR DOCUMENTS EXECUTED IN CONNECTION HEREWITH.
The undersigned authorizes any attorney at law to appear in any Court
of Record in the State of Ohio or in any other state or territory of the United
States after the above indebtedness becomes due, whether by acceleration or
otherwise, to waive the issuing and service of process, and to confess judgment
against the undersigned in favor of the Bank for the amount then appearing due
together with costs of suit, and thereupon to waive all errors and all rights of
appeal and stays of execution. The attorney at law authorized hereby to appear
for the undersigned may be an attorney at law representing the Bank, and the
undersigned hereby expressly waives any conflict of interest that may exist by
virtue of such representation.
WARNING-BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
X. X. XXXXX CORPORATION
By: _____________________________________
Xxxxxxx X. Xxxxxxxx, Vice President
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