AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
THIS AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this "AGREEMENT")
is entered into as of February 26, 1999 by and between XXXXX GOLF DIRECT
RESPONSE, LTD., a Texas limited partnership, and XXXXX GOLF, LTD., a Texas
limited partnership (each a "BORROWER" and collectively, "BORROWERS"), and
NATIONSBANK, N.A., a national banking association, successor in interest by
merger to NationsBank of Texas, N.A., a national banking association
("LENDER").
W I T N E S S E T H:
1. Borrowers and Lender entered into that certain Revolving Credit
Agreement dated as of February 27, 1998 (as modified, amended, renewed,
extended, and restated from time to time, the "ORIGINAL LOAN AGREEMENT"),
pursuant to which Lender provided to Borrowers a revolving credit facility
upon the terms and subject to the conditions set forth in the Original Loan
Agreement.
2. Borrowers and Lender desire and have agreed, subject to the terms
and conditions set forth herein, to amend and restate the Original Loan
Agreement in its entirety as and pursuant to this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITION OF TERMS
1.1 DEFINITIONS. As used in this Agreement, all exhibits and schedules
hereto and in any note, certificate, report, or other Loan Documents made or
delivered pursuant to this Agreement, the following terms have the respective
meanings assigned to them in this SECTION 1 or in the SECTION or recital
referred to below:
"ADJUSTED EURODOLLAR RATE" means, with respect to any Interest Period,
an interest rate per annum (rounded upwards, if necessary, to the next 1/16th
of 1%) equal to the quotient of (a) the Eurodollar Rate with respect to such
Interest Period, DIVIDED BY (b) the remainder of 1.00 MINUS the Eurodollar
Reserve Requirement in effect on such date.
"ADVANCE" means (a) the disbursement by Lender of a sum or sums lent to
any Borrower pursuant to this Agreement, (b) the conversion of a Borrowing
from one type of Borrowing to another type of Borrowing pursuant to SECTION
2.14, and (c) the continuation of a Eurodollar Borrowing to a new Interest
Period pursuant to SECTION 2.14.
"ADVANCE DATE" has the meaning set forth in SECTION 2.2(a).
"AFFILIATE" of any Person means any other Person directly or
indirectly, controlling, controlled by, or under common control with, such
Person.
"AFTER-ACQUIRED SUBSIDIARY" has the meaning set forth in SECTION 6.13.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
"AGI" means Xxxxx Golf, Inc., a Delaware corporation.
"AGREEMENT" means this Revolving Credit Agreement, including the
SCHEDULES and EXHIBITS hereto, as the same may be renewed, extended, amended,
or modified from time-to-time.
"APPLICABLE MARGIN" means, at the time of determination thereof, the
interest margin over the Base Rate or the Adjusted Eurodollar Rate, as the
case may be, as follows:
----------------------------------------------------------------------
APPLICABLE MARGIN APPLICABLE MARGIN EURODOLLAR
BASE RATE BORROWINGS BORROWINGS
----------------------------------------------------------------------
- 0.50% 1.00%
----------------------------------------------------------------------
"BASE RATE" means the variable rate of interest established from
time-to-time by Lender as its general reference rate of interest (which rate
of interest may not be the lowest rate charged by Lender on similar loans).
Each change in the Base Rate shall become effective without prior notice to
Borrowers automatically as of the opening of business on the date of such
change in the Base Rate.
"BASE RATE BORROWING" means any portion of the Principal Debt with
respect to which the interest rate is calculated by reference to the Base
Rate.
"BORROWING" means a Eurodollar Borrowing or a Base Rate Borrowing.
"BUSINESS DAY" means (a) for all purposes, any day OTHER THAN a
Saturday, Sunday, or day on which national banks are authorized to be closed
under the laws of the State of Texas, and (b) for purposes of any Eurodollar
Borrowing, a day that satisfies the requirements of CLAUSE (A) and is a day
when commercial banks are open for domestic or international business in
London.
"CAPITAL LEASE" means, for any Person, any capital lease or sublease
that has been (or under GAAP should be) capitalized on a balance sheet of
such Person.
"CASH INTEREST EXPENSE" means (without duplication), for the Companies
for any period, total interest expense in respect of Indebtedness actually
paid or that is payable during such period, including, without limitation,
all commissions, discounts, and other fees and charges with respect to
letters of credit, but excluding interest expense not payable in cash, all as
determined in accordance with GAAP.
"CHANGE IN CONTROL" means (a) AGI shall cease to own, directly or
indirectly, one hundred percent (100%) of all of the issued and outstanding
capital Stock of each other material Company, or (b) any Person or group of
related Persons (other than X. X. Xxxxx or Royal Holding Company, Inc. or
their respective Affiliates) shall have acquired beneficial ownership of more
than thirty-five percent (35%) of the outstanding Stock of AGI, or (c) at any
time during any period of twelve (12) consecutive calendar months commencing
on or after the date of this Agreement, a majority of the Board of Directors
of AGI shall no longer be comprised of individuals (i) who were members of
such Board of Directors on the first (1st) day of such period, (ii) whose
election or nomination to such Board of Directors was approved by individuals
referred to in CLAUSE (I) above constituting at the time of such election or
nomination at least a majority of such Board of Directors, or (iii) whose
election or nomination to such
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
Board of Directors was approved by individuals referred to in CLAUSES (I) and
(II) above constituting at the time of such election or nomination at least a
majority of such Board of Directors.
"CODE" means the INTERNAL REVENUE CODE OF 1986, as amended, and all
regulations promulgated and rulings issued thereunder.
"COMMITMENT USAGE" means, as of any date, THE SUM OF (a) the Principal
Debt PLUS (b) the LC Exposure.
"COMPANIES" means Borrowers and Guarantors, and "COMPANY" means any one
of the Companies.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of EXHIBIT A, executed by an authorized officer of each Borrower, stating
that a review of the activities of the Companies during the subject period
has been made under such Person's supervision and that the Companies have
performed each and every obligation and covenant contained herein and the
other Loan Documents and are not in default under any of the same or, if any
such default shall have occurred, then specifying the nature and status
thereof, and setting forth a computation in reasonable detail as of the end
of the period covered by such statements, of compliance with SECTIONS 7.14
and 7.15.
"CONSOLIDATED ADJUSTED NET INCOME" means, for the Companies for any
period, consolidated net earnings (after income taxes) determined in
accordance with GAAP, but excluding (a) extraordinary gains, (b) gains due to
sales or write-up of assets, (c) earnings of any Person newly acquired, if
earned prior to acquisition, or (d) gains due to acquisitions of any Stock of
any Company.
"CONSTITUENT DOCUMENTS" means, with respect to any Person, its articles
or certificate of incorporation, bylaws, partnership agreements,
organizational documents, limited liability company agreements, trust
agreement, or such other document as may govern such Person's formation,
organization, and management.
"CONTRACT RATE" means (a) with respect to a Base Rate Borrowing, the
Base Rate PLUS the Applicable Margin, and (b) with respect to a Eurodollar
Borrowing, the Adjusted Eurodollar Rate PLUS the Applicable Margin.
"DEBTOR LAWS" means all applicable liquidation, conservatorship,
bankruptcy, moratorium, arrangement, receivership, insolvency,
reorganization, or similar laws from time-to-time in effect affecting the
rights of creditors generally.
"DIVIDENDS" means, with respect to any Stock issued by any Person, (a)
the retirement, redemption, purchase, or other acquisition for value of such
Stock by such Person, (b) the declaration or payment of any dividend or
distribution on or with respect to such Stock by such Person, and (c) any
other payment by such Person with respect to such Stock.
"EBITDA" means, for the Companies for any period, THE SUM OF (a)
Consolidated Adjusted Net Income, PLUS (b) depreciation and amortization
expense, PLUS (c) Cash Interest Expense, PLUS (d) federal,
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
state, local, and foreign income taxes deducted from Consolidated Adjusted
Net Income in accordance with GAAP.
"ENVIRONMENTAL LAWS" means any Legal Requirements pertaining to air,
emissions, water discharge, noise emissions, solid or liquid waste disposal,
hazardous waste or materials, industrial hygiene, or other environmental,
health, or safety matters or conditions on, under or about real property or
any portion thereof, and similar laws of any Governmental Authority having
jurisdiction over real property as such Legal Requirements may be amended or
supplemented from time-to-time, and regulations promulgated and rulings
issued pursuant to such laws.
"ERISA" means the EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, as
amended, and the regulations and published interpretations thereunder.
"ERISA AFFILIATE" means any Subsidiary or trade or business (whether or
not incorporated) which is a member of a group of which any Company is a
member and which is under common control with any Company within the meaning
of SECTION 414 of the Code.
"EURODOLLAR BORROWING" means any portion of the Principal Debt with
respect to which the interest rate is calculated by reference to the Adjusted
Eurodollar Rate for a particular Interest Period.
"EURODOLLAR RATE" means, for any Eurodollar Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of one percent) equal to the rate appearing on the Dow Xxxxx
Markets Page 3750 (or any successor page) as the London interbank offered
rate for deposits in Dollars at approximately 11:00 a.m. (London time) two
(2) Business Days prior to the first (1st) day of such Interest Period for a
term comparable to such Interest Period. If for any reason such rate is not
available, then such rate shall be the rate appearing on the Reuters Screen
LIBO Page as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two (2) Business Days prior to the
first (1st) day of the such Interest Period for a term comparable to such
Interest Period; PROVIDED, HOWEVER, if more than one rate is specified on the
Reuters Screen LIBO Page, then the applicable rate shall be the arithmetic
mean of all such rates. If neither of such rates are available, then such
rate shall be determined on the basis of the rates at which deposits in
United States dollars are offered by Lender at approximately 11:00 a.m.
(London time) on the day that is two (2) Business Days preceding the first
(1st) day of the relevant Interest Period to prime banks in the London
interbank market and for a period equal to such Interest Period commencing on
the first (1st) day of such Interest Period.
"EURODOLLAR RESERVE REQUIREMENT" means, on any day, that percentage
(expressed as a decimal fraction) that is in effect on such day, as provided
by the Board of Governors of the Federal Reserve System (or any successor
governmental body) applied for determining the maximum reserve requirements
(including, without limitation, basic, supplemental, marginal and emergency
reserves) under REGULATION D with respect to "EUROCURRENCY LIABILITIES" as
currently defined in REGULATION D, or under any similar or successor
regulation with respect to Eurocurrency liabilities or Eurocurrency funding.
Each determination by Lender of the Eurodollar Reserve Requirement shall, in
the absence of manifest error, be conclusive and binding.
"EVENT OF DEFAULT" has the meaning set forth in SECTION 8.1.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
"FIXED CHARGES" means, for the Companies, for any period, the sum of
(a) Cash Interest Expense, (b) operating lease expenses, and (c) rent
expenses.
"FUNDING LOSS" has the meaning set forth in SECTION 2.16(e).
"GAAP" means those generally accepted accounting principles and
practices, applied on a consistent basis, which are recognized as such by the
American Institute of Certified Public Accountants acting through its
Accounting Principles Board and the Financial Accounting Standards Board
and/or their respective successors and which are applicable in the
circumstances as of the date in question.
"GOVERNMENTAL AUTHORITY" means, with respect to any Person, any
government (or any political subdivision or jurisdiction thereof), court,
bureau, agency, or other governmental authority having jurisdiction over such
Person or any of its business, operations, or properties.
"GOVERNMENTAL AUTHORIZATION" means any approval, consent, license,
permit, waiver, or other authorization issued, granted, given, or otherwise
made available by or under the authority of any Governmental Authority or
pursuant to any Legal Requirement.
"GUARANTORS" means AGI, Xxxxx Golf Holding Corp., a Delaware
corporation, Xxxxx Golf GP Corp., a Delaware corporation, Xxxxx Golf
Management Corp., a Delaware corporation, Xxxxx Golf IP, L.P., a Delaware
limited partnership, and each other After-Acquired Subsidiary of AGI.
"GUARANTY" of any Person means any contract or understanding of such
Person pursuant to which such Person guarantees, or in effect guarantees, any
Indebtedness of any other Person (the "PRIMARY OBLIGOR") in any manner,
whether directly or indirectly, including agreements to assure the holder of
the Indebtedness of the Primary Obligor against loss in respect thereof;
PROVIDED THAT "GUARANTY" shall not include endorsements, in the ordinary
course of business, of negotiable instruments or documents for deposit or
collection.
"HAZARDOUS MATERIAL" means any hazardous, toxic, or dangerous waste,
substance, or material defined as such in or for the purpose of any
Environmental Law.
"INDEBTEDNESS" means, for any Person, all Liabilities of such Person,
excluding accounts payable, deferred taxes, deferred liabilities, and accrued
expenses in each case incurred in the ordinary course of business and the
payment of which is not past-due (unless payment is being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves are maintained in accordance with GAAP).
"INTANGIBLE RIGHTS" means, for any Person, any permits, franchises,
licenses, patents, trademarks, trade names, intellectual property rights,
technology, know-how, and processes of such Person.
"INTEREST PERIOD" means, with respect to a Eurodollar Borrowing, a
period commencing:
(a) on the Advance Date thereof; or
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
(b) on the conversion date pertaining to such Eurodollar Borrowing, if
such Eurodollar Borrowing is made pursuant to a conversion as described in
SECTION 2.13; or
(c) on the last day of the preceding Interest Period in the case of a
rollover to a successive Interest Period;
and ending one (1) month or three (3) or six (6) months thereafter, as
Borrowers shall elect in accordance with SECTION 2.13 or SECTION 2.14,
PROVIDED THAT:
(i) any Interest Period that would otherwise end on a day which is not
a Business Day shall be extended to the next succeeding Business Day, UNLESS
such Business Day falls in another calendar month in which case such Interest
Period shall end on the next preceding Business Day;
(ii) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month or at the end of such Interest Period) shall,
subject to CLAUSE (I) above, end on the last Business Day of a calendar
month; and
(iii) if the Interest Period for any Eurodollar Borrowing would
otherwise end after the final maturity date of the Note, then such Interest
Period shall end on the final maturity date of the Note.
"INVESTMENT" in any Person means any investment, whether by means of
Stock purchase, loan, advance, extension of credit, capital contribution, or
otherwise, in or to such Person, the Guaranty of any Indebtedness of such
Person, or the subordination of any claim against such Person to other
Indebtedness of such Person.
"LC" means a documentary or standby letter of credit issued for the
account of Borrowers by Lender under this Agreement and under an LC Agreement.
"LC AGREEMENT" means a letter of credit application and agreement (in
form and substance satisfactory to Lender) executed by Borrowers and
submitted to Lender for an LC for the account of Borrowers.
"LC EXPOSURE" means, without duplication, the SUM of (a) the total face
amount of all undrawn and uncancelled LCs PLUS (b) the total unpaid
reimbursement obligations of Borrowers under drawings under any LC.
"LC REQUEST" means a request substantially in the form of EXHIBIT B
executed by a responsible officer of each Borrower.
"LC SUB-FACILITY" means a sub-facility of the Revolving Credit
Commitment for the issuance of LCs, as described in SECTION 2.3, under which
the LC Exposure (a) may never collectively exceed $5,000,000, and (b)
TOGETHER WITH the Principal Debt may never exceed the Revolving Credit
Commitment.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
"LEGAL REQUIREMENT" means any federal, state, local, municipal,
foreign, international, multi-national, or other administrative order,
constitution, law, ordinance, principle of common law, regulation, statute,
or treaty as in effect on the date in question.
"LIABILITIES" means (without duplication), with respect to any Person,
all indebtedness, obligations, and liabilities of such Person, including
without limitation (a) all "LIABILITIES" which would be reflected on a
balance sheet of such Person, (b) all obligations of such Person in respect
of any Guaranty, letter of credit, or bankers' acceptance, (c) all
obligations of such Person in respect of any Capital Lease, (d) all
obligations, indebtedness, and liabilities secured by any lien or any
security interest on any property or assets of such Person, and (e) any
obligation to redeem or repurchase any of such Person's Stock.
"LIEN" means any lien, mortgage, security interest, tax lien, pledge,
encumbrance, conditional sale or title retention arrangement, or any other
interest in property designed to secure the repayment of Indebtedness,
whether arising by agreement or under any statute or law, or otherwise.
"LOAN DOCUMENTS" means this Agreement, the Note, and any agreements,
documents (and with respect to this Agreement, and such other agreements and
documents, any renewals, extensions, amendments, or supplements thereto), or
certificates at any time executed or delivered pursuant to the terms of this
Agreement.
"MATERIAL ADVERSE EFFECT" means any material adverse changes in, or
effect upon, (a) the validity, performance or enforceability of any Loan
Documents, (b) the financial condition or business operations of any Company,
or (c) the ability of any Company to fulfill its obligations under the Loan
Documents.
"MAXIMUM RATE" means the highest non-usurious rate of interest (if any)
permitted from day to day by applicable law. Lender hereby notifies and
discloses to Borrowers that, for purposes of Tex. Rev. Civ. Stat. Xxx. art.
5069-1D.001 (codified in the TEXAS FINANCE CODE Section 303.001), as it may
from time to time be amended, the "APPLICABLE CEILING" shall be the "WEEKLY
CEILING" from time to time in effect as limited by article 5069-1D.009
(codified in the TEXAS FINANCE CODE Section 303.305); PROVIDED, HOWEVER, that
to the extent permitted by applicable law, Lender reserves the right to
change the "APPLICABLE CEILING" from time to time by further notice and
disclosure to Borrowers.
"MULTI-EMPLOYER PLAN" means a multi-employer plan as defined in
SECTIONS 3(37) or 4001(A)(3) of ERISA or SECTION 414 of the Code to which any
Company or any ERISA Affiliate is making, or has made, or is accruing, or has
accrued, an obligation to make contributions.
"NOTE" means the Amended and Restated Promissory Note executed by
Borrowers and delivered pursuant to the terms of this Agreement, together
with any renewals, extensions, modifications, or restatements thereof.
"NOTICE OF BORROWING" means a notice in the form of EXHIBIT C attached
hereto.
"OBLIGATION" means all present and future Indebtedness, obligations,
and Liabilities and all
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
renewals and extensions thereof, or any part thereof, now or hereafter owed
to Lender by Borrowers, whether arising pursuant to any of the Loan
Documents, or otherwise, and all modifications, amendments, renewals,
extensions, and restatements thereof, together with all interest accruing
thereon and costs, expenses, and attorneys' fees incurred in the enforcement
or collection thereof.
"OTHER TAXES" has the meaning set forth in SECTION 2.17.
"PBGC" means the Pension Benefit Guaranty Corporation, and any
successor to all or any of the Pension Benefit Guaranty Corporation's
functions under ERISA.
"PERSON" shall include an individual, corporation, joint venture,
general or limited partnership, limited liability company, trust,
unincorporated organization, or government, or any agency or political
subdivision thereof.
"PERMITTED LIENS" means (a) Liens in favor of Lender to secure the
Obligation, (b) pledges or deposits made to secure payment of worker's
compensation (or to participate in any fund in connection with worker's
compensation), unemployment insurance, pensions, or social security programs,
(c) Liens imposed by mandatory provisions of law such as for materialmen's,
mechanic's, warehousemen's, and other like Liens arising in the ordinary
course of a Company's business, securing Indebtedness whose payment is not
yet due, (d) Liens for taxes imposed upon a Person or upon such Person's
income, profits, or property, if the same are not yet due and payable or if
the same are being contested in good faith and for which adequate reserves
are maintained in accordance with GAAP, (e) good faith deposits in connection
with leases, real estate bids or contracts (OTHER THAN contracts involving
the borrowing of money), pledges or deposits to secure (or in lieu of)
surety, stay, appeal, or customs bonds and deposits to secure the payment of
taxes, assessments, customs, duties, or other similar charges, (f)
encumbrances consisting of zoning restrictions, easements, or other
restrictions on the use of real property, PROVIDED THAT such encumbrances do
not impair the use of such property for the uses intended, and none of which
is violated by existing or proposed structures or land use, and (g) Liens
described on EXHIBIT F, and Liens resulting from the refinancing of the
related Indebtedness secured thereby, PROVIDED THAT the Indebtedness secured
thereby shall not be increased and the Liens shall not cover additional
assets of any Company.
"PLAN" means an employee benefit plan or other plan maintained by any
Company or any ERISA Affiliate and which is covered by TITLE IV of ERISA or
subject to the minimum funding standards under SECTION 412 of the Code, as
amended.
"PLANO FACILITY" means the Companies new facility located at 0000 Xxxx
Xxxxx Xxxxxxx, Xxxxx, Xxxxx.
"POTENTIAL DEFAULT" means the occurrence of any event which with
passage of time or giving of notice or both would become an Event of Default.
"PRINCIPAL DEBT" means, as of any date, the sum of the outstanding
principal balance of all outstanding Borrowings hereunder as of such date.
"REPORTABLE EVENT" has the meaning assigned to that term in TITLE IV of
ERISA, but shall not
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
include an event with respect to which the PBGC has waived the reporting
requirement by regulation.
"REPRESENTATIVES" means representatives, officers, directors,
employees, attorneys, and agents.
"REVOLVING CREDIT COMMITMENT" means $10,000,000.00, as the same may be
decreased by Borrowers pursuant to SECTION 2.1 or terminated by Lender
pursuant to SECTION 8.2.
"SOLVENT" means, as to a Person, that (a) the aggregate fair market
value of its assets exceeds its Liabilities, (b) such Person is able to pay
and is paying its Liabilities as they mature, and (c) it does not have
unreasonably small capital to conduct its businesses.
"STOCK" means all shares, options, warrants, general or limited
partnership interests, membership interests, or other ownership interests
(regardless of how designated) of or in a corporation, partnership, limited
liability company, trust, or other entity, whether voting or nonvoting,
including common stock, preferred stock, or any other "EQUITY SECURITY" (as
such term is defined in RULE 3A11-1 of the GENERAL RULES AND REGULATIONS
promulgated by the Securities and Exchange Commission under the SECURITIES
EXCHANGE ACT OF 1934, as amended).
"SUBSIDIARY" means any corporation of which more than fifty percent
(50%) (in number of votes) of the issued and outstanding Stock having
ordinary voting power for the election of at least a majority of the
directors is owned or controlled, directly or indirectly, by AGI, any
Subsidiary of AGI, or any combination thereof.
"TAXES" has the meaning set forth in SECTION 2.17.
"TEMPORARY CASH INVESTMENT" means any Investment (a) in direct
obligations of the United States of America or any agency thereof, or
obligations fully guaranteed by the United States of America or any agency
thereof, PROVIDED THAT such obligations mature within one (1) year of the
date of acquisition thereof, (b) commercial paper rated in the highest grade
by two (2) or more national credit rating agencies and maturing not more than
180 days from the date of creation thereof, and (c) time deposits with, and
certificates of deposit and bankers' acceptances issued by, Lender or any
United States bank having capital surplus and undivided profits aggregating
at least $1,000,000,000.00.
"TERMINATION DATE" means the earlier of (a) May 31, 2000, (b) the date
Lender's commitment to fund Advances hereunder is terminated pursuant to
SECTION 8.2, or (c) the date that Lender's commitment to fund Advances
hereunder is reduced to zero pursuant to SECTION 2.1.
"UNUSED COMMITMENT" means, as of any date, (a) the Revolving Credit
Commitment, MINUS (b) the Commitment Usage.
1.2 ACCOUNTING TERMS. As used in this Agreement, and in any
certificate, report, or other document made or delivered pursuant to this
Agreement, accounting terms not defined in SECTION 1.1, and accounting terms
partly defined in SECTION 1.1 to the extent not defined, have, as of any
date, the respective meanings given to them under GAAP and all references to
balance sheets or other financial statements means such statements, prepared
in accordance with GAAP as of such date.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
1.3 RULES OF CONSTRUCTION. When used in this Agreement: (a) "OR" is not
exclusive; (b) a reference to a law includes any amendment or modification to
such law; (c) a reference to a Person includes its permitted successors and
permitted assigns; (d) except as provided otherwise, all references to the
singular shall include the plural and VICE VERSA; (e) except as provided in
this Agreement, a reference to an agreement, instrument, or document shall
include such agreement, instrument, or document as the same may be amended,
modified, renewed, extended, restated, or supplemented from time to time in
accordance with its terms and as permitted by the Loan Documents; (f) all
references to SECTIONS, SCHEDULES, or EXHIBITS shall be to Sections,
Schedules, or Exhibits of this Agreement, unless otherwise indicated; (g) all
EXHIBITS to this Agreement shall be incorporated into this Agreement; (h) the
words "INCLUDE," "INCLUDES," and "INCLUDING" shall be deemed to be followed
by the phrase "WITHOUT LIMITATION;" and (i) except as otherwise provided
herein, in the computation of time from a specified date to a later specified
date, the word "FROM" means "FROM AND INCLUDING" and words "TO" and "UNTIL"
each mean "to but excluding."
1.4 JOINT AND SEVERAL.
(a) All representations contained herein shall be deemed individually
made by each Borrower, and each of the covenants, agreements, and obligations
set forth herein shall be deemed to be the joint and several covenants,
agreements, and obligations of each Borrower. Any notice, request, consent,
report, or other information or agreement delivered to Lender by any Borrower
shall be deemed to be ratified by, consented to, and also delivered by each
other Borrower. Each Borrower recognizes and agrees that each covenant and
agreement of a "BORROWER" and "BORROWERS" in this Agreement and in any other
Loan Document shall create a joint and several obligation of such entities,
which may be enforced against such entities jointly or against each entity
separately.
(b) Each Borrower hereby irrevocably and unconditionally agrees: (i)
that it is jointly and severally liable to Lender for the full and prompt
payment of the Obligation and the performance by each other Borrower of its
obligations hereunder in accordance with the terms hereof; (ii) to fully and
promptly perform all of its obligations hereunder with respect to the
Obligation; and (iii) as a primary obligation to indemnify Lender on demand
for and against any loss incurred by Lender as a result of any of the
obligations of any one or more of Borrowers being or becoming void, voidable,
unenforceable, or ineffective for any reason whatsoever, whether or not known
to Lender or any Person, the amount of such loss being the amount which
Lender would otherwise have been entitled to recover from any one or more
Borrowers.
SECTION 2
THE REVOLVING CREDIT LOAN
2.1 THE REVOLVING CREDIT COMMITMENT. Subject to the terms and
conditions of this Agreement, Lender agrees to extend to Borrowers, from the
date hereof through the Termination Date, a revolving line of credit which
shall not exceed at any one time outstanding the then-current Revolving
Credit Commitment. Within the limits of this SECTION 2.1, during such period,
Borrowers may borrow, repay, and reborrow the Unused Commitment in accordance
with this Agreement. Borrowers shall have
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
the right, upon three (3) Business Days' prior written notice to Lender, to
permanently reduce the unutilized portion of the Revolving Credit Commitment;
PROVIDED THAT if any such reduction does not reduce the Revolving Credit
Commitment to $0.00, then any partial reduction shall be in the minimum
amount of $1,000,000.00 or a greater integral multiple of $500,000.00.
2.2 MANNER OF BORROWING.
(a) NOTICE OF BORROWING. Borrowers may request an Advance by submitting
to Lender a Notice of Borrowing (in writing or by telephone followed by
written notice within one (1) Business Day), which is irrevocable and binding
on Borrowers. Each Notice of Borrowing must be received by Lender no later
than 10:00 a.m. (Dallas, Texas time) on the third (3rd) Business Day before
the date on which funds are requested (the "ADVANCE DATE") for any Advance
that will be a Eurodollar Borrowing or no later than 10:00 a.m. (Dallas,
Texas time) on the Advance Date for any Advance that will be a Base Rate
Borrowing.
(b) MINIMUM ADVANCES. Each Advance under the Revolving Credit
Commitment shall be in an amount of $100,000.00 or a greater integral
multiple of $50,000.00.
(c) FUNDING. Subject to the terms and conditions in this Agreement, by
not later than 2:00 p.m., Dallas, Texas time, on the date specified, Lender
shall make available to Borrowers, at Lender's offices in Dallas, Texas, the
amount of a requested Advance under the Revolving Credit Commitment in
immediately available funds.
2.3 LETTERS OF CREDIT.
(a) CONDITIONS. Subject to the terms and conditions of this Agreement,
Lender agrees, if requested by Borrowers, to issue LCs upon Borrowers' making
or delivering an LC Request and delivering an LC Agreement, both of which
must be received by Lender no later than the third (3rd) Business Day before
the Business Day on which the requested LC is to be issued, PROVIDED THAT (i)
no LC may expire after a date that is one (1) month before the Termination
Date, (ii) the LC Exposure may not exceed the limitations set forth in the
definition of LC Sub-facility, and (iii) each LC must expire no later than
one (1) year following the date of its issuance.
(b) REIMBURSEMENT OBLIGATION. To induce Lender to issue and maintain
LCs, Borrowers agree, jointly and severally, to pay or reimburse Lender (i)
on the first (1st) Business Day after Lender notifies Borrowers that Lender
has made payment under an LC, the amount paid by Lender, and (ii) within
three (3) Business Days after demand, the amount of any additional fees
Lender customarily charges for amending LCs Agreements, for honoring drafts
under LCs, and for taking similar action in connection with letters of
credit. If Borrowers have not reimbursed Lender for any drafts paid by the
date on which reimbursement is required under this SECTION, then Lender is
irrevocably authorized to fund Borrowers' reimbursement obligations as a Base
Rate Borrowing if the conditions in this Agreement for such a Borrowing
(OTHER THAN any notice requirements or minimum funding amounts) have been
satisfied. The proceeds of such Borrowing shall be advanced directly to
Lender to pay Borrowers' unpaid reimbursement obligations. If funds cannot be
advanced as a result of Borrowers' failure to satisfy any condition precedent
set forth in SECTION 4, then Borrowers' reimbursement obligation shall
constitute a
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
demand obligation. Borrowers' obligations under this SECTION are absolute and
unconditional under any and all circumstances and irrespective of any setoff,
counterclaim, or defense to payment that any Borrower may have at any time
against Lender or any other Person. From the date that Lender pays a draft
under a LC until Borrowers either reimburse or are obligated to reimburse
Lender for such draft under this SECTION, the amount of such draft bears
interest payable to Lender at the rate then applicable to Base Rate
Borrowings. From the due date of the respective amounts due under this
SECTION, to the date paid (including any payment from proceeds of a Base Rate
Borrowing), unpaid reimbursement amounts accrue interest that is payable on
demand at the default rate set forth in SECTION 2.10.
(c) GENERAL. Lender shall promptly notify Borrowers of the date and
amount of any draft presented for honor under any LC (but failure to give
notice will not affect Borrowers' obligations under this Agreement). Lender
shall pay the requested amount upon presentment of a draft unless presentment
on its face does not comply with the terms of the applicable LC. When making
payment, Lender may disregard (i) any default or potential default that
exists under any other agreement, and (ii) obligations under any other
agreement that have or have not been performed by the beneficiary or any
other Person (and Lender is not liable for any of those obligations).
Borrowers' reimbursement obligations to Lender under this SECTION are
absolute and unconditional irrespective of, and Lender is not responsible
for, (i) the validity, enforceability, sufficiency, accuracy, or genuineness
of documents or endorsements (even if they are in any respect invalid,
unenforceable, insufficient, inaccurate, fraudulent, or forged), (ii) any
dispute by any Company with or any Company's claims, setoffs, defenses,
counterclaims, or other rights against Lender or any other Person, or (iii)
the occurrence of any Potential Default or Event of Default. However, nothing
in this Agreement constitutes a waiver of Borrowers' rights to assert any
claim or defense based upon the gross negligence or willful misconduct of
Lender or its Representatives.
(d) DUTIES OF LENDER. Lender and each Borrower agree that, in paying
any draft under any LC, Lender has no responsibility to obtain any document
(OTHER THAN any documents expressly required by the respective LC) or to
ascertain or inquire as to any document's validity, enforceability,
sufficiency, accuracy, or genuineness or the authority of any Person
delivering it. Neither Lender nor its Representatives will be liable to any
Company for any LC's use or for any beneficiary's acts or omissions
(INCLUDING, WITHOUT LIMITATION, ANY ACTS OR OMISSIONS CONSTITUTING ORDINARY
NEGLIGENCE). Any action, inaction, error, delay, or omission taken or
suffered by Lender or any of its Representatives in connection with any LC,
applicable drafts or documents, or the transmission, dispatch, or delivery of
any related message or advice, if in good faith and in conformity with
applicable Legal Requirements and in accordance with the standards of care
specified in the UNIFORM CUSTOMS AND PRACTICES FOR DOCUMENTARY CREDITS (1993
REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 500 (as amended
or modified), is binding upon the Companies and Lender and, except as
provided in SECTION 2.3(d), does not place Lender or any of its
Representatives under any resulting liability to any Company. Lender is not
liable to any Company for any action taken or omitted, in the absence of
gross negligence or willful misconduct, by Lender or its Representative in
connection with any LC.
(e) CASH COLLATERAL. On the Termination Date and if requested by Lender
while a Potential Default or Event of Default exists, then Borrowers shall
provide Lender cash collateral in an amount to equal the then-existing LC
Exposure.
(f) INDEMNIFICATION. EACH BORROWER SHALL PROTECT, INDEMNIFY, PAY, AND SAVE
LENDER
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
AND ITS REPRESENTATIVES, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, LIABILITIES, DAMAGES, COSTS, CHARGES, AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) WHICH ANY OF THEM MAY INCUR OR BE SUBJECT TO AS A
CONSEQUENCE OF THE ISSUANCE OF ANY LC, ANY DISPUTE ABOUT IT, OR THE FAILURE
OF LENDER TO HONOR A DRAW REQUEST UNDER ANY LC AS A RESULT OF ANY ACT OR
OMISSION (WHETHER RIGHT OR WRONG) OF ANY PRESENT OR FUTURE GOVERNMENTAL
AUTHORITY. ALTHOUGH LENDER AND ITS REPRESENTATIVES HAVE THE RIGHT TO BE
INDEMNIFIED UNDER THIS AGREEMENT FOR ITS OR THEIR OWN ORDINARY NEGLIGENCE, NO
PERSON IS ENTITLED TO INDEMNITY UNDER THE FOREGOING FOR ITS OWN GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT.
(g) LC AGREEMENTS. Although referenced in any LC, terms of any
particular agreement or other obligation to the beneficiary are not
incorporated into this Agreement in any manner. The fees and other amounts
payable with respect to each LC are as provided in this Agreement, drafts
under each LC are part of the Obligation, only the events specified in this
Agreement as a Default shall constitute a default under any LC or LC
Agreement, and the terms of this Agreement control any conflict between the
terms of this Agreement and any LC Agreement.
2.4 COMMITMENT FEES.
(a) UNUSED FEE. Borrowers agree to pay to Lender a commitment fee equal
to one-eighth of one percent (0.125%) per annum on the daily Unused
Commitment. Such commitment fee shall be payable quarterly in arrears on the
last day of each March, June, September, and December during the term hereof,
commencing on March 31, 1999, and continuing regularly thereafter so long as
the Revolving Credit Commitment is in effect, and on the Termination Date.
(b) LC FEES. Borrowers agree to pay to Lender, as a condition precedent
to the issuance (including the extension) of each LC, an issuance fee payable
on the date of issuance equal to (i) two percent (2%) per annum of the face
amount of such LC on the date of issuance for a standby LC, and (ii) the
greater of (A) $125.00, and (B) one-quarter of one percent (0.25%) per annum
of the face amount of such LC on the date of issuance, for a documentary LC.
(c) GENERALLY. Borrowers acknowledge that the commitment fees payable
hereunder are bona fide commitment fees and are intended as reasonable
compensation to Lender for committing to make funds available to Borrowers as
described herein and for no other purposes.
2.5 NOTE. The Principal Debt shall be evidenced by the Note in form and
substance satisfactory to Lender executed by Borrowers, which Note shall be (a)
dated the date hereof, (b) in the amount of $10,000,000.00, and (c) payable to
the order of Lender.
2.6 INTEREST AND PRINCIPAL PAYMENTS.
(a) INTEREST PAYMENTS. Accrued interest on each Eurodollar Borrowing
shall be due and payable on the last day of its respective Interest Period.
If any Interest Period is a period greater than three (3) months, then
accrued interest shall also be due and payable on the date ending each three
(3) month period after the commencement of the Interest Period. Accrued
interest on each Base Rate Borrowing shall be due and payable on the last day
of each March, June, September, and December during the term hereof,
commencing on March 31, 1999, with a final scheduled interest payment on all
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
Borrowings on the Termination Date; PROVIDED, HOWEVER, that accrued interest
on each Base Rate Borrowing shall also be due and payable upon conversion of
such Base Rate Borrowing to a Eurodollar Borrowing pursuant to SECTION 2.14.
(b) PRINCIPAL PAYMENTS. The unpaid Principal Debt shall be due and
payable on the Termination Date.
(c) OPTIONAL PREPAYMENTS. Borrowers shall have the right, from
time-to-time, to prepay the unpaid Principal Debt, in whole or in part,
without premium or penalty (EXCEPT FOR any Funding Loss), upon the payment of
accrued interest on the amount prepaid to and including the date of payment;
PROVIDED, HOWEVER, that partial prepayments of principal shall be in an
amount equal to $100,000.00 or a greater integral multiple of $50,000.00 (or,
if less, the unpaid Principal Debt).
2.7 MANNER AND APPLICATION OF PAYMENTS. All payments and prepayments by
Borrowers on account of principal, interest, and fees hereunder shall be made
in immediately available funds. All such payments shall be made to Lender at
its principal office in Dallas, Texas, not later than 12:00 noon, Dallas,
Texas time, on the date due and funds received after that hour shall be
deemed to have been received by Lender on the next following Business Day. If
any payment is scheduled to become due and payable on a day which is not a
Business Day, then such payment shall instead become due and payable on the
immediately following Business Day and interest on the principal portion of
such payment shall be payable at the then applicable rate during such
extension. All payments made on the Note shall be applied first to accrued
interest and then to principal (in the inverse order of maturity in the case
of prepayments).
2.8 INTEREST OPTIONS. Except where specifically otherwise provided,
Borrowings bear interest at an annual rate equal to the lesser of EITHER (a)
THE SUM OF (i) the Base Rate or the Adjusted Eurodollar Rate (in each case as
designated or deemed designated by Borrowers), as the case may be, PLUS (ii)
the Applicable Margin, OR (b) the Maximum Rate. Each change in the Base Rate
and the Maximum Rate is effective, without notice to Borrowers or any other
Person, upon the effective date of change.
2.9 QUOTATION OF RATES. A responsible officer of Borrowers may call
Lender before delivering a Notice of Borrowing to receive an indication of
the interest rates then in effect, but the indicated rates do not bind Lender
or affect the interest rate that is actually in effect when Borrowers deliver
a Notice of Borrowing.
2.10 DEFAULT RATE. If permitted by law, all past-due principal of and
accrued interest on the Note bears interest from maturity (stated or by
acceleration) at the Maximum Rate, or if there is no Maximum Rate in effect,
then fourteen percent (14%) per annum, until paid, regardless whether payment
is made before or after entry of a judgment.
2.11 INTEREST RECAPTURE. If the Contract Rate applicable to any
Borrowing exceeds the Maximum Rate, then the interest rate on that Borrowing
is limited to the Maximum Rate, but any subsequent reductions in the Contract
Rate shall not reduce the interest rate thereon below the Maximum Rate until
the total amount of accrued interest equals the amount of interest that would
have accrued if Contract Rate had always been in effect. If at maturity
(stated or by acceleration) the total interest paid or
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
accrued is less than the interest that would have accrued if the Contract
Rates had always been in effect, then, at that time and to the extent
permitted by law, Borrowers shall pay an amount equal to the difference
between (a) the lesser of the amount of interest that would have accrued if
the Contract Rates had always been in effect and the amount of interest that
would have accrued if the Maximum Rate had always been in effect, and (b) the
amount of interest actually paid or accrued on the Note.
2.12 INTEREST CALCULATIONS.
(a) Interest shall be calculated on the basis of actual number of days
(including the first day but excluding the last day) elapsed but computed as
if each calendar year consisted of 360 days (unless the calculation would
result in an interest rate greater than the Maximum Rate, in which event
interest will be calculated on the basis of a year of 365 or 366 days, as the
case may be). All interest rate determinations and calculations by Lender are
conclusive and binding absent manifest error.
(b) The provisions of this Agreement relating to calculation of the
Base Rate and the Eurodollar Rate are included only for the purpose of
determining the rate of interest or other amounts to be paid under this
Agreement that are based upon those rates. Lender may fund and maintain its
funding of all or any part of each Borrowing as it selects.
2.13 SELECTION OF INTEREST OPTION. On making a Notice of Borrowing
under SECTION 2.2(a), Borrowers shall advise Lender as to whether the Advance
shall be (a) a Eurodollar Borrowing, in which case Borrowers shall specify
the applicable Interest Period therefor, or (b) a Base Rate Borrowing.
Notwithstanding anything to the contrary contained herein, (a) no more than
three (3) Interest Periods shall be in effect at any one time with respect to
Eurodollar Borrowings, (b) Borrowers shall have no right to request a
Eurodollar Borrowing if the interest rate applicable thereto would exceed the
Maximum Rate in effect on the first day of the Interest Period applicable to
such Borrowing, and (c) each Eurodollar Borrowing shall be in the amount of
$250,000.00 or a greater integral multiple of $50,000.00.
2.14 ROLLOVERS AND CONVERSIONS. Borrowers may (a) convert a Eurodollar
Borrowing on the last day of the applicable Interest Period to a Base Rate
Borrowing, (b) convert a Base Rate Borrowing at any time to a Eurodollar
Borrowing, and (c) elect a new Interest Period for a Eurodollar Borrowing, by
giving a Notice of Borrowing to Lender no later than 12:00 noon on the third
(3rd) Business Day before the conversion date or the last day of the Interest
Period, as the case may be (for conversion to a Eurodollar Borrowing or
election of a new Interest Period), and no later than 12:00 noon one (1)
Business Day before the last day of the Interest Period (for conversion to an
Base Rate Borrowing); PROVIDED THAT each Eurodollar Borrowing shall be in the
amount of $250,000.00 or a greater integral multiple of $50,000.00. Absent
Borrowers' Notice of Borrowing, a Eurodollar Borrowing shall be deemed
converted to a Base Rate Borrowing effective when the applicable Interest
Period expires.
2.15 BOOKING BORROWINGS. To the extent permitted by law, Lender may
make, carry, or transfer its Borrowings at, to, or for the account of any of
its branch offices or the office of any of its Affiliates. However, no
Affiliate is entitled to receive any greater payment under SECTION 2.16(b)
than Lender would have been entitled to receive with respect to those
Borrowings. Lender agrees that it will use its reasonable efforts (consistent
with its internal policies and applicable law) to make, carry, maintain, or
transfer its Borrowings with its Affiliates or branch offices in an effort to
eliminate or reduce to the extent possible the aggregate amounts due to it
under SECTIONS 2.16(b) and 2.16(c) if, in its
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
reasonable judgment, such efforts will not be disadvantageous to it.
2.16 SPECIAL PROVISIONS FOR EURODOLLAR BORROWINGS.
(a) BASIS UNAVAILABLE OR INADEQUACY OF EURODOLLAR LOAN PRICING. If with
respect to an Interest Period for any Eurodollar Borrowing, (a) Lender
determines that, by reason of circumstances affecting the interbank
eurodollar market generally, deposits in Dollars (in the applicable amounts)
are not being offered to or by Lender in the interbank eurodollar market for
such Interest Period, or (b) Lender determines that the Eurodollar Rate as
determined by Lender will not adequately and fairly reflect the cost to
Lender of maintaining or funding the Eurodollar Borrowing for such Interest
Period, then Lender shall forthwith give notice thereof to Borrowers,
whereupon until Lender notifies Borrowers that the circumstances giving rise
to such suspension no longer exist, (i) the obligation of Lender to make
Eurodollar Borrowings shall be suspended, and (ii) Borrowers shall either (A)
repay in full the then-outstanding principal amount of the Eurodollar
Borrowings, together with accrued interest thereon on the last day of the
then current Interest Period applicable to such Eurodollar Borrowings, or (B)
convert such Eurodollar Borrowings to Base Rate Borrowings in accordance with
SECTION 2.14 on the last day of the then-current Interest Period applicable
to each such Eurodollar Borrowing.
(b) ILLEGALITY. If, after the date of this Agreement, the adoption of
any applicable law, rule, or regulation, or any change therein, or any change
in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation
or administration thereof, or compliance by Lender with any request or
directive (whether or not having the force of law) of any such authority,
central bank, or comparable agency shall make it unlawful or impossible for
Lender to make, maintain or fund Eurodollar Borrowings, then Lender shall so
notify Borrowers. Before giving any notice pursuant to this SECTION, Lender
shall designate a different Eurodollar lending office if such designation
will avoid the need for giving such notice and will not be otherwise
disadvantageous to any non-trivial extent to Lender (as determined in good
faith by Lender). Upon receipt of such notice, Borrowers shall either (i)
repay in full the then outstanding principal amount of all Eurodollar
Borrowings, together with accrued interest thereon, or (ii) convert each
Eurodollar Borrowing to a Base Rate Borrowing, on either (A) the last day of
the then-current Interest Period applicable to such Eurodollar Borrowing if
Lender may lawfully continue to maintain and fund such Eurodollar Borrowing
to such day or (B) immediately if Lender may not lawfully continue to fund
and maintain such Eurodollar Borrowing to such day, PROVIDED THAT Borrowers
shall be liable for any Funding Loss arising pursuant to such conversion.
(c) INCREASED COSTS FOR EURODOLLAR BORROWINGS. If any Governmental
Authority, central bank, or other comparable authority, shall at any time
impose, modify, or deem applicable any reserve (including, without
limitation, any imposed by the Board of Governors of the Federal Reserve
System but excluding any reserve requirement included in the Eurodollar
Reserve Requirement), special deposit, or similar requirement against assets
of, deposits with, or for the account of, or credit extended by, Lender, or
shall impose on Lender (or its Eurodollar lending office) or the interbank
eurodollar market any other condition affecting its Eurodollar Borrowings,
the Note, or its obligation to make Eurodollar Borrowings; and the result of
any of the foregoing is to increase the cost to Lender of making or
maintaining Eurodollar Borrowings, or to reduce the amount of any sum
received or receivable by Lender under this Agreement, or under the Note, by
an amount deemed by Lender to be material, then, within five (5) days after
demand by Lender, Borrowers shall pay to Lender such additional amount or
amounts as will
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
compensate Lender for such increased cost or reduction. Lender will promptly
notify Borrowers of any event of which it has knowledge, occurring after the
date hereof, which will entitle Lender to compensation pursuant to this
SECTION. No failure by Lender to immediately demand payment of any additional
amounts payable hereunder shall constitute a waiver of Lender's right to
demand payment of such amounts at any subsequent time. A certificate of
Lender claiming compensation under this SECTION and setting forth the
additional amount or amounts to be paid to it hereunder, together with a
description in reasonable detail of the manner in which such amounts have
been calculated, shall be delivered by Lender to Borrower within one hundred
eighty (180) days after the incurrence thereof and shall be conclusive in the
absence of manifest error. If Lender demands compensation under this SECTION,
then Borrowers may at any time, upon at least five (5) Business Days' prior
notice to such Lender, either convert such Eurodollar Borrowings to Base Rate
Borrowings in accordance with the provisions of this Agreement; PROVIDED,
HOWEVER, that Borrowers shall be liable for any Funding Loss arising pursuant
to such actions.
(d) EFFECT ON BASE RATE BORROWINGS. If notice has been given pursuant
to SECTION 2.16(a) or SECTION 2.16(b) requiring that Eurodollar Borrowings to
be repaid or converted, then unless and until Lender notifies Borrowers that
the circumstances giving rise to such repayment no longer apply, all
Borrowings shall be Base Rate Borrowings. If Lender notifies Borrowers that
the circumstances giving rise to such repayment no longer apply, then
Borrowers may thereafter select Borrowings to be Eurodollar Borrowings in
accordance with SECTION 2.13 and SECTION 2.14.
(e) FUNDING LOSSES. Borrowers shall jointly and severally indemnify
Lender against any loss or reasonable expense (such loss or expense is
referred to herein as a "FUNDING LOSS," such term including, but not limited
to, any loss or reasonable expense sustained or incurred or to be sustained
or incurred in liquidating or reemploying deposits from third parties
acquired to effect or maintain such Borrowing or any part thereof as a
Eurodollar Borrowing) with respect to Eurodollar Borrowings which Lender may
sustain or incur as a consequence of (i) any failure by Borrowers to fulfill
on the date of any Borrowing hereunder the applicable conditions set forth in
SECTION 4, (ii) any failure by Borrowers to borrow hereunder or to convert
Borrowings hereunder after a Conversion Notice has been given, (iii) any
payment, prepayment, or conversion of a Eurodollar Borrowing required or
permitted by any other provisions of this Agreement, including, without
limitation, payments made due to the acceleration of the maturity of the
Borrowings pursuant to SECTION 8.2, or otherwise made on a date OTHER THAN
the last day of the applicable Interest Period, (iv) any default in the
payment or prepayment of the principal amount of any Eurodollar Borrowing or
any part thereof or interest accrued thereon, as and when due and payable (at
the due date thereof, by notice of prepayment or otherwise), or (v) the
occurrence of a Potential Default or an Event of Default. The term "FUNDING
LOSS" includes, without limitation, an amount equal to the excess, if any, as
determined by Lender of (A) its cost of obtaining the funds for the Borrowing
being paid, prepaid, or converted or not borrowed or converted (based on the
Adjusted Eurodollar Rate applicable thereto) for the period from the date of
such payment, prepayment, or conversion or failure to borrow or convert to
the last day of the Interest Period for such Borrowing (or, in the case of a
failure to borrow or convert, the Interest Period for the Borrowing which
would have commenced on the date of such failure to borrow or convert) over
(B) the amount of interest (as estimated by Lender) that would be realized by
Lender in reemploying the funds so paid, prepaid or converted or not borrowed
or converted for such period or Interest Period, as the case may be. A
certificate of Lender setting forth any amount or amounts which Lender is
entitled to receive pursuant to this SECTION 2.16(e), together with a
description in reasonable detail of the manner in which such amounts have
been calculated, shall be delivered to
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
Borrowers and shall be conclusive, absent manifest error. Borrowers shall pay
to Lender the amount shown as due on any certificate within five (5) days
after its receipt of the same. Notwithstanding the foregoing, in no event
shall Lender be permitted to receive any compensation hereunder constituting
interest in excess of the Maximum Rate. Without prejudice to the survival of
any other obligations of Borrowers hereunder, the obligations of Borrowers
under this SECTION 2.16(e) shall survive the termination of this Agreement
and/or the payment or assignment of the Note.
2.17 TAXES.
(a) Any and all payments by Borrowers hereunder or under the Note shall
be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto (hereinafter referred to as "TAXES"),
excluding taxes imposed on Lender's income, and franchise taxes imposed on
Lender, by the jurisdiction under the laws of which Lender is organized or is
or should be qualified to do business or any political subdivision thereof
and, taxes imposed on Lender's income, and franchise taxes imposed on Lender
by the jurisdiction of Lender's lending office or any political subdivision
thereof. If Borrowers shall be required by law to deduct any Taxes from or in
respect of any sum payable hereunder or under the Note to Lender, 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 2.17) Lender receives an amount equal to the sum
it would have received had no such deductions been made, (ii) Borrowers shall
make such deductions, and (iii) Borrowers shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law.
(b) In addition, Borrowers agree to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges, or similar
levies which arise from any payment made hereunder or under the Loan
Documents or from the execution, delivery, or registration of, or otherwise
with respect to, this Agreement or the other Loan Documents (hereinafter
referred to as "OTHER TAXES").
(c) Borrowers shall indemnify Lender for the full amount of Taxes or
Other Taxes (including, without limitation, any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this SECTION 2.17) paid by
Lender or any liability (including penalties and interest) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be made within five
(5) days from the date Lender makes written demand therefor.
(d) Within thirty (30) days after the date of any payment of Taxes,
Borrowers shall furnish to Lender, at its address referred to in SECTION 9.4,
the original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of
Borrowers hereunder, the agreements and obligations of Borrowers contained in
this SECTION 2.17 shall survive the payment in full of principal and interest
hereunder and under the other Loan Documents.
SECTION 3
GUARANTIES
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
3.1 GUARANTIES. Payment of the Obligation shall be unconditionally
guaranteed by Guarantors.
SECTION 4
CONDITIONS PRECEDENT
4.1 INITIAL ADVANCE. The obligation of Lender to make the initial
Advance or issue the initial LC hereunder is subject to the conditions
precedent that, on or before the date of such Advance or issuance of such LC,
(a) Borrowers shall have paid to Lender all fees to be received by Lender
pursuant to this Agreement or any other Loan Document, and (b) Lender shall
have received duly executed copies of each of the documents listed on EXHIBIT
E, each dated as of the date of such Advance, and each in form and substance
satisfactory to Lender.
4.2 ALL ADVANCES. The obligation of Lender to make any Advance and
issue each LC under this Agreement (including the initial Advance or LC)
shall be subject to the conditions precedent that, as of the date of such
Advance or issuance of such LC and after giving effect thereto: (a) there
exists no Potential Default or Event of Default; (b) no change that would
cause a Material Adverse Effect has occurred since the date of the financial
statements referenced in SECTION 5.6; (c) Lender shall have received from
Borrowers a Notice of Borrowing or LC Request, as appropriate, dated as of
the date of such Advance or issuance of such LC, as appropriate, and all of
the statements contained in such Notice of Borrowing or LC Request, as the
case may be, shall be true and correct; (d) the representations and
warranties contained in each of the Loan Documents shall be true in all
respects as though made on the date of such Advance or issuance of such LC;
and (e) the Maximum Rate exceeds the Contract Rate.
SECTION 5
REPRESENTATIONS AND WARRANTIES
To induce Lender to make Advances and issue LCs hereunder, Borrowers
represent and warrant to Lender that:
5.1 ORGANIZATION AND GOOD STANDING. Each Company is duly organized,
validly existing, and in good standing under the laws of the state of its
incorporation or formation, is duly qualified and is in good standing in all
states in which it is doing business (except where the failure to be so
qualified and maintain good standing could not have a Material Adverse
Effect), has the power and authority to own its properties and assets and to
transact the business in which it is engaged in each jurisdiction in which it
operates, and is or will be qualified in those states wherein it proposes to
transact business in the future (except where the failure to be so qualified
could not have a Material Adverse Effect).
5.2 AUTHORIZATION AND POWER. Each Company has full power and authority
to execute, deliver, and perform the Loan Documents to be executed by such
Person, all of which has been duly authorized by all proper and necessary
action.
5.3 NO CONFLICTS OR CONSENTS. Neither the execution and delivery of the
Loan Documents, nor the consummation of any of the transactions therein
contemplated, nor compliance with the terms and
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
provisions thereof, will contravene or materially conflict with any Legal
Requirement to which any Company is subject, any Governmental Authorization
applicable to any Company, any indenture, loan agreement, mortgage, deed of
trust, or other agreement or instrument binding on any Company, or any
provision of the Constituent Documents of any Company. No consent, approval,
authorization, or order of any court, Governmental Authority, stockholder, or
third party is required in connection with the execution, delivery, or
performance by any Company of any of the Loan Documents.
5.4 ENFORCEABLE OBLIGATIONS. The Loan Documents have been duly executed
and delivered by each Company, as appropriate, and are the legal and binding
obligations of each Company, as appropriate, enforceable in accordance with
their respective terms, except as limited by Debtor Laws.
5.5 NO LIENS. Except for the Permitted Liens, all of the properties and
assets of each Company are free and clear of all Liens and other adverse
claims of any nature, and each Company has good and marketable title to such
properties and assets.
5.6 FINANCIAL CONDITION. Borrowers have delivered to Lender copies of
the financial statements of the Companies, as of September 30, 1998; such
financial statements are true and correct, fairly represent the financial
condition of the Companies as of such date, and have been prepared in
accordance with GAAP; as of the date hereof, there are no obligations,
Liabilities, or Indebtedness (including contingent and indirect Liabilities)
of the Companies which are material and are not reflected in such financial
statements; no Material Adverse Effect has occurred since the date of such
financial statements.
5.7 FULL DISCLOSURE. There is no fact known to any Borrower that such
Borrower has not disclosed to Lender which could have a Material Adverse
Effect. No certificate or statement delivered by any Borrower to Lender in
connection with this Agreement contains any untrue statement of a material
fact or omits to state any material fact necessary to keep the statements
contained herein or therein from being misleading.
5.8 NO POTENTIAL DEFAULT. No event has occurred and is continuing which
constitutes a Potential Default or an Event of Default.
5.9 MATERIAL AGREEMENTS. No Company is in default in any material
respect under any contract or agreement to which it is a party or by which
any of its properties is bound, except where such default could not have a
Material Adverse Effect.
5.10 NO LITIGATION. Except as disclosed on SCHEDULE 5.10, there are no
actions, suits, or legal, equitable, arbitration, or administrative
proceedings pending, or to the knowledge of any Borrower threatened, against
any Company that could, if adversely determined, have a Material Adverse
Effect.
5.11 USE OF PROCEEDS; MARGIN STOCK. The proceeds of each Advance will
be used by each Borrower solely for the purposes specified in the preamble.
None of such proceeds will be used for the purpose of purchasing or carrying
any "MARGIN STOCK" as defined in REGULATIONS T, U, or X of the Board of
Governors of the Federal Reserve System or for any other purpose which might
constitute this transaction a "PURPOSE CREDIT" within the meaning of such
Regulations. If requested by Lender, then Borrowers shall furnish to Lender a
statement in conformity with the requirements of the Federal Reserve
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
Form U-1 referred to in said REGULATION U to the foregoing effect. No part of
the proceeds of any Advance will be used for any purpose which violates, or
is inconsistent with, the provisions of REGULATION X.
5.12 TAXES. All tax returns required to be filed by each Company in any
jurisdiction have been filed and all taxes (including mortgage recording
taxes), assessments, fees, and other governmental charges upon each Company
or upon any of its properties, income, or franchises have been paid EXCEPT
FOR taxes being contested in good faith by appropriate proceedings diligently
projected and for which adequate reserves are maintained in accordance with
GAAP. To the best of each Borrower's knowledge, there is no proposed tax
assessment against any Company, and all tax Liabilities of each Company are
adequately provided for. No income tax liability of any Company has been
asserted by the Internal Revenue Service for taxes in excess of those already
paid.
5.13 PRINCIPAL OFFICE, ETC. The principal office, chief executive
office, and principal place of business of each Company are set forth on
EXHIBIT D. Each Company maintains its principal records and books at such
address.
5.14 COMPLIANCE WITH LAW.
(a) Except as disclosed on SCHEDULE 5.14-1: (i) each Company is in
compliance with its respective Constituent Documents and all Legal
Requirements which are applicable to it or to the conduct or operation of its
business or the ownership or use of any of its assets, except where such
non-compliance could not have a Material Adverse Effect; and (ii) no Company
has received any notice or other communication from any Governmental
Authority or other Person of any event or circumstance that could constitute
a violation of, or failure to comply with, any Legal Requirement.
(b) Except as disclosed on SCHEDULE 5.14-1: (i) each Company is in
compliance with all of the terms and requirements of each Governmental
Authorization held by such Person, except where such non-compliance could not
have a Material Adverse Effect; (ii) no Company has received any notice or
other communication from any Governmental Authority or other Person of any
event or circumstance which could constitute a violation of, or failure to
comply with, any term or requirement of any Governmental Authorization, or of
any actual or potential revocation, withdrawal, cancellation, or termination
of, or material modification to, any Governmental Authorization; (iii) all
applications required to have been filed for the renewal of any required
Governmental Authorizations have been duly filed on a timely basis with the
appropriate Governmental Authorities, and all other filings required to have
been made with respect to such Governmental Authorizations have been duly
made on a timely basis with the appropriate Governmental Authorities; (iv)
upon consummation of the transactions contemplated hereby, each Company will
lawfully hold all such Governmental Authorizations; and (v) none of the
Governmental Authorizations of any Company will terminate upon consummation
of the transactions contemplated hereby.
(c) Set forth on SCHEDULE 5.14-2 is a list of each of the Governmental
Authorizations of each Company: (i) necessary to permit each such Person to
lawfully conduct and operate its respective business in the manner it
currently conducts and operates such business and to permit such Person to
own and use its assets in the manner in which it currently owns and uses such
assets; and (ii) necessary to permit each such Person, upon a consummation of
the transactions contemplated hereby, to lawfully
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
conduct and operate its business and to permit each such Person to own and
use its assets.
5.15 SUBSIDIARIES. Set forth on EXHIBIT D hereto is a complete and
accurate list of all Subsidiaries as of the date hereof, showing as of such
date (as to each such Subsidiary) the jurisdiction of its incorporation, the
owner of the outstanding Stock of such Subsidiary, and the jurisdictions in
which such Subsidiary is qualified to do business as a foreign corporation.
To the extent applicable, all of the outstanding Stock of all Subsidiaries
has been validly issued, is fully paid and nonassessable, and is owned by AGI
or a Subsidiary free and clear of all Liens.
5.16 CASUALTIES. Neither the business nor the properties of any Company
are affected by any environmental hazard, fire, explosion, accident, strike,
lockout, or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God, or other casualty (whether or not covered by insurance), which
could have a Material Adverse Effect.
5.17 SUFFICIENCY OF CAPITAL. Each Company is, and after consummation of
this Agreement and after giving effect to all Indebtedness incurred and Liens
created by the Companies in connection herewith will be, Solvent.
5.18 LOCATION OF ASSETS. All tangible assets of the Companies are
located at the addresses listed on EXHIBIT D hereto except for inventory that
is, in the ordinary course of the Companies' business, in transit. No asset
of any Company will be kept at any other address.
5.19 CORPORATE NAME. No Company has, during the preceding five (5)
years, (a) used any other corporate name or tradename, or (b) been the
surviving corporation of a merger or consolidation or acquired all or
substantially all of the assets of any Person.
5.20 LEASES. Except as set forth on SCHEDULE 5.20, no Company is the
lessee of any real or personal property.
5.21 ERISA. Each Company and each ERISA Affiliate has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code, and has not incurred
any liability to the PBGC or a Plan under TITLE IV of ERISA.
5.22 LABOR MATTERS. There are no controversies pending between any
Company and any of their employees which could have a Material Adverse Effect.
5.23 BURDENSOME CONTRACTS. No Company is a party to any contract, the
breach, violation, or termination of which could result in a Material Adverse
Effect.
5.24 PERMITS, FRANCHISES, INTELLECTUAL PROPERTY, AND OTHER INTANGIBLE
RIGHTS. Each Company owns, holds, and has the lawful right to use, all
material Intangible Rights used in or necessary for the conduct of its
business as currently conducted or proposed to be conducted.
5.25 FULL DISCLOSURE OF RIGHTS AND CLAIMS. Except as disclosed on
SCHEDULE 5.10, no claims are pending, or, to the best of any Borrower's
knowledge, threatened, that any Company is infringing or
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
otherwise adversely affecting the Intangible Rights of any other Person. The
consummation of the transactions contemplated by the Loan Documents will not
impair the ownership of, or rights with respect to, any material Intangible
Rights of any Company.
5.26 YEAR 2000 COMPLIANCE. Each Company has (a) initiated a review and
assessment of all areas within its business and operations (including those
affected by suppliers and vendors) that could be adversely affected by the
"YEAR 2000 PROBLEM" (that is, the risk that computer applications used by the
Companies (or its suppliers and vendors) may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (b) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (c) to date,
implemented that plan in accordance with that timetable. Borrowers reasonably
believe that all computer applications (including those of suppliers and
vendors) that are material to the Companies' respective business and
operations will on a timely basis be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "YEAR
2000 COMPLIANT"), except to the extent that a failure to do so could not
reasonably be expected to have Material Adverse Effect.
5.27 REPRESENTATIONS AND WARRANTIES. Each Notice of Borrowing shall
constitute, without the necessity of specifically containing a written
statement, a representation and warranty by Borrowers that no Potential
Default or Event of Default exists and that all representations and
warranties contained in this SECTION 5 or in any other Loan Document are true
and correct on and as of the date the requested Advance is to be made.
5.28 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties by Borrowers herein shall survive delivery of the Note and the
making of each Advance, and any investigation at any time made by or on
behalf of Lender shall not diminish Lender's right to rely thereon.
SECTION 6
AFFIRMATIVE COVENANTS
So long as Lender has any commitment to make Advances or issue LCs
hereunder, and until payment in full of the Obligation and termination of all
LCs, Borrowers agree that (unless Lender shall otherwise consent in writing):
6.1 FINANCIAL STATEMENTS, REPORTS, AND DOCUMENTS. Borrowers shall
deliver to Lender each of the following:
(a) PERIODIC STATEMENTS. As soon as available, and in any event within
forty-five (45) days after the last day of each fiscal quarter of each fiscal
year of the Companies, copies of the consolidated balance sheet of the
Companies as of the end of such fiscal quarter, and statements of income,
retained earnings, and changes in cash flow of the Companies for that fiscal
period and for the portion of the fiscal year ending with such period, all in
reasonable detail, and certified by the chief financial officer of AGI as
being true and correct and as having been prepared in accordance with GAAP,
subject to year-end audit adjustments;
(b) ANNUAL STATEMENTS. As soon as available and in any event within one
hundred and
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
twenty (120) days after the last day of each fiscal year of the Companies,
copies of the consolidated balance sheet of AGI as of the close of such
fiscal year and statements of income, retained earnings, and changes in cash
flow of AGI for such fiscal year, in each case setting forth in comparative
form the figures for the preceding fiscal year, all in reasonable detail and
accompanied by an opinion thereon (which shall not be qualified by reason of
any limitation imposed by any Company) of independent public accountants of
recognized national standing selected by AGI and satisfactory to Lender, to
the effect that (i) such consolidated financial statements have been prepared
in accordance with GAAP (EXCEPT FOR changes in which such accountants
concur), (ii) the examination of such accountants in connection with such
financial statements has been made in accordance with generally accepted
auditing standards and, accordingly, includes such tests of the accounting
records and such other auditing procedures as were considered necessary under
the circumstances, and (iii) in making their audit, such accountants have not
become aware of any condition or event which would constitute a Potential
Default or an Event of Default under any of the terms or provisions of this
Agreement (insofar as any such terms or provisions pertain to accounting
matters) and, if any such condition or event then exists, specifying the
nature and period of existence thereof;
(c) COMPLIANCE CERTIFICATE. Contemporaneously with the delivery of the
financial statements required by SECTION 6.1(a), a compliance Certificate and
an accounts receivable aging report; and
(d) OTHER INFORMATION. Such other information concerning the business,
properties or financial condition of any Company as Lender shall reasonably
request including audit reports, registration statements, or other reports or
notices provided to shareholders of AGI and, if applicable, filed with the
Securities and Exchange Commission.
6.2 PAYMENT OF TAXES AND OTHER INDEBTEDNESS. Borrowers shall, and shall
cause each of the other Companies to, pay and discharge (a) all taxes,
assessments, and governmental charges or levies imposed upon it or upon its
income or profits, or upon any property belonging to it, before delinquent,
(b) all lawful claims (including claims for labor, materials, and supplies),
which, if unpaid, might give rise to a Lien upon any of its property, and (c)
all of its other Indebtedness, except as prohibited under the Loan Documents;
PROVIDED, HOWEVER, that the Companies shall not be required to pay any such
tax, assessment, charge, or levy if and so long as the amount, applicability,
or validity thereof shall currently be contested in good faith by appropriate
proceedings and appropriate accruals and appropriate reserves have been
established in accordance with GAAP.
6.3 MAINTENANCE OF EXISTENCE AND RIGHTS; CONDUCT OF BUSINESS. Borrowers
shall, and shall cause each of the other Companies to, preserve and maintain
its existence and all of its rights, privileges, and franchises (including
Intangible Rights) necessary or desirable in the normal conduct of its
business, and conduct its business in an orderly and efficient manner
consistent with good business practices and in accordance with all Legal
Requirements of any Governmental Authority, except where the failure to so
preserve or maintain could not have a Material Adverse Effect.
6.4 NOTICE OF DEFAULT. Borrowers shall furnish to Lender, immediately
upon becoming aware of the existence of any condition or event which
constitutes a Potential Default or an Event of Default, written notice
specifying the nature and period of existence thereof and the action which
Borrowers are taking or proposes to take with respect thereto.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
6.5 OTHER NOTICES. Borrowers shall, and shall cause each of the other
Companies to, promptly notify Lender of (a) any material adverse change in
its financial condition or its business, (b) any default under any material
agreement, contract, or other instrument to which it is a party or by which
any of its properties are bound, or any acceleration of the maturity of any
Indebtedness owing by any Company, (c) any material adverse claim against or
affecting any Company or any of its properties, and (d) the commencement of,
and any material determination in, any litigation with any third party or any
proceeding before any Governmental Authority affecting any Company.
6.6 OPERATIONS AND PROPERTIES. Borrowers shall, and shall cause each of
the other Companies to, (a) act prudently and in accordance with customary
industry standards in managing and operating its assets and properties, and
(b) keep in good working order and condition, ordinary wear and tear
excepted, all of its assets and properties which are necessary to the conduct
of its business.
6.7 BOOKS AND RECORDS; ACCESS. Borrowers shall, and shall cause each of
the other Companies to, give any representative of Lender access upon
reasonable notice and during all business hours to, and permit such
representative to examine, copy, or make excerpts from, any and all books,
records, and documents in the possession of any Company and relating to its
affairs, and to inspect any of the properties of any Company. Borrowers
shall, and shall cause each of the other Companies to, maintain complete and
accurate books and records of its transactions in accordance with good
accounting practices.
6.8 COMPLIANCE WITH LAW. Borrowers shall, and shall cause each of the
other Companies to, comply with all applicable Legal Requirements of any
Governmental Authority, a breach of which could have a Material Adverse
Effect.
6.9 INSURANCE. Borrowers shall, and shall cause each of the other
Companies to, keep all insurable property, real and personal, adequately
insured at all times in such amounts and against such risks as are customary
for Persons in similar businesses operating in the same vicinity,
specifically to include a policy of hazard, casualty, fire, and extended
coverage insurance covering all assets, business interruption insurance
(where feasible), liability insurance, and worker's compensation insurance,
in every case under a policy with a financially sound and reputable insurance
company and with only such deductibles as are customary, and all to contain a
mortgagee or loss payee clause naming Lender as its interest may appear.
6.10 AUTHORIZATIONS AND APPROVALS. Borrowers shall, and shall cause
each of the other Companies to, promptly obtain, from time to time at its own
expense, all Governmental Authorizations as may be required to enable it to
comply with its obligations hereunder and under the other Loan Documents.
6.11 FURTHER ASSURANCES. Borrowers shall, and shall cause each of the
other Companies to, make, execute, and deliver or file or cause the same to
be done, all such notices, additional agreements, mortgages, assignments,
financing statements, or other assurances, and take any and all such other
action, as Lender may, from time to time, deem reasonably necessary or proper
in connection with any of the Loan Documents, the obligations of any Company
thereunder.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
6.12 INDEMNITY BY BORROWERS. Borrowers shall indemnify, defend, and
hold harmless Lender and its Representatives (individually, an "INDEMNITEE"
and collectively, the "INDEMNITEES") from and against any and all loss,
liability, obligation, damage, penalty, judgment, claim, deficiency, and
expense (including interest, penalties, attorneys' fees, and amounts paid in
settlement) to which any Indemnitee may become subject arising out of this
Agreement and the other Loan Documents OTHER THAN those which arise by reason
of the gross negligence or willful misconduct of Lender, BUT SPECIFICALLY
INCLUDING ANY LOSS, LIABILITY, OBLIGATION, DAMAGE, PENALTY, JUDGMENT, CLAIM,
DEFICIENCY, OR EXPENSE ARISING OUT OF THE SOLE OR CONCURRENT NEGLIGENCE OF
LENDER OR ANY OF ITS REPRESENTATIVES. Borrowers shall also indemnify,
protect, and hold each Indemnitee harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, claims, proceedings, costs, expenses (including without limitation all
reasonable attorneys' fees and legal expenses whether or not suit is
brought), and disbursements of any kind or nature whatsoever which may at any
time be imposed on, incurred by, or asserted against such Indemnitee, with
respect to or as a direct or indirect result of the violation by any Company
of any Environmental Law; or with respect to or as a direct or indirect
result of any Company's use, generation, manufacture, production, storage,
release, threatened release, discharge, disposal, or presence of a Hazardous
Material on, under, from, or about real property. The provisions of and
undertakings and indemnifications set forth in this SECTION 6.12 shall
survive (a) the satisfaction and payment of the Obligation and termination of
this Agreement, and (b) the release of any Liens held by Lender on real
property or the extinguishment of such Liens by foreclosure or action in lieu
thereof; PROVIDED, HOWEVER, that the indemnification set forth herein shall
not extend to any act or omission by Lender with respect to any property
subsequent to Lender becoming the owner of such property and with respect to
which property such claim, loss, damage, liability, fine, penalty, charge,
proceeding, order, judgment, action, or requirement arises subsequent to the
acquisition of title thereto by Lender.
6.13 AFTER-ACQUIRED SUBSIDIARIES. Concurrently upon the formation or
acquisition by any Company of any Subsidiary after the date hereof (an
"AFTER-ACQUIRED SUBSIDIARY"), Borrowers shall, and shall cause each of the
other Companies to, deliver Constituent Documents for such After-Acquired
Subsidiary and such opinions as Lender shall require and shall cause the
After-Acquired Subsidiary to execute a guaranty in favor of Lender.
6.14 ERISA COMPLIANCE. Borrowers shall, and shall cause each of the
other Companies and each ERISA Affiliate to: (a) at all times, make prompt
payment of all contributions required under all Plans and required to meet
the minimum funding standards set forth in ERISA with respect to its Plan;
(b) within thirty (30) days after the filing thereof, furnish to Lender
copies of each annual report/return (FORM 5500 series), as well as all
schedules and attachments required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA, and the regulations
promulgated thereunder, in connection with each of its Plans for each Plan
year; (c) notify Lender immediately of any fact including but not limited to,
any Reportable Event arising in connection with any of its Plans, which might
constitute grounds for termination thereof by the PBGC or for the appointment
by the appropriate United States District Court of a trustee to administer
such Plan, together with a statement, if requested by Lender, as to the
reason therefor and the action, if any, proposed to be taken with respect
thereto; and (d) furnish to Lender upon its request, such additional
information concerning any of its Plans as may be reasonably requested.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
6.15 INTANGIBLE RIGHTS LITIGATION. If any Person files an action, suit,
or legal, equitable, arbitration, or administrative proceeding against any
Company asserting that such Company is infringing or otherwise adversely
affecting the rights of such Person with respect to any Intangible Rights,
then Borrowers shall, within sixty (60) days after the filing of such action,
suit, or proceeding, provide to Lender evidence reasonably satisfactory to
Lender (including, without limitation, opinions of counsel) that such Company
is not infringing upon the Intangible Rights of any Person.
6.16 YEAR 2000 COMPLIANCE. Each Borrower shall promptly notify Lender
in the event such Borrower discovers or determines that any computer
application (including those of suppliers and vendors) that is material to
its or any Company's business and operations will not be Year 2000 Compliant
on a timely basis, except to the extent that such failure to be Year 2000
Compliant could not reasonably be expected to have a Material Adverse Effect.
SECTION 7
NEGATIVE COVENANTS
So long as Lender has any commitment to make Advances or issue LCs
hereunder, and until payment in full of the Obligation and termination of all
LCs, Borrowers agree that (unless Lender shall otherwise consent in writing):
7.1 LIMITATION ON INDEBTEDNESS. Borrowers shall not, and shall not
permit any of the other Companies to, incur, guarantee, or otherwise be or
become, directly or indirectly, liable in respect of any Indebtedness, except
(a) Indebtedness arising out of this Agreement, (b) Indebtedness secured by
the Permitted Liens (EXCEPT FOR Indebtedness incurred, borrowed, or
guaranteed after the date hereof), and any renewals and extensions (but not
increases) thereof, (c) Indebtedness not to exceed $750,000.00 in the
aggregate at any time outstanding to finance the purchase or lease of
telecommunications equipment and furnishings and fixtures to be used in the
Plano Facility, (d) Indebtedness payable by Xxxxx Golf, Ltd. to Xxxxxx Xxxxx
in the aggregate principal amount of approximately $1,100,000.00, (e)
Indebtedness of any Company owed to any other Company, and (f) other
Indebtedness not to exceed $1,000,000.00 in the aggregate at any time
outstanding; PROVIDED THAT the Indebtedness permitted under (C) and (F) shall
not exceed $1,500,000.00 in the aggregate at any time outstanding.
7.2 NEGATIVE PLEDGE. Borrowers shall not, and shall not permit any of
the other Companies to, create, incur, permit, or suffer to exist any Lien
upon any of its property or assets, now owned or hereafter acquired, EXCEPT
FOR (a) Permitted Liens and (b) Liens securing the Indebtedness described in
SECTION 7.1(c) and (f).
7.3 NEGATIVE PLEDGE AGREEMENTS. Borrowers shall not, and shall not
permit any of the other Companies to, enter into any agreement (excluding
this Agreement or any other Loan Documents) prohibiting the creation or
assumption of any Lien upon any of its property, revenues, or assets, whether
now owned or hereafter acquired, or the ability of any Subsidiary to make any
payments, directly or indirectly, to AGI by way of Dividends, advances,
repayments of loans, repayments of expenses, accruals, or otherwise.
7.4 RESTRICTIONS ON DIVIDENDS. AGI shall not, if an Event of Default
exists, declare or
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
make, or incur any liability to make, any Dividend. Borrower shall not, and
shall permit any of the other Companies to, declare or make, or incur any
liability to make, any Dividend except to another Company.
7.5 LIMITATION ON INVESTMENTS. Borrowers shall not, and shall not
permit any of the other Companies to, make or have outstanding any
Investments in any Person, EXCEPT FOR (a) the Companies' ownership of Stock
of Subsidiaries, (b) Temporary Cash Investments and such other "CASH
EQUIVALENT" investments as Lender may from time to time approve in writing,
(c) advances to employees and third parties not to exceed $250,000.00 in the
aggregate at any time outstanding, (d) acquisitions of stock or other assets
in the sports equipment and accessories business from any Person PROVIDED
THAT the aggregate purchase price of such acquisitions do not exceed
$2,000,000.00 in any calendar year, and (e) advances by any Company to
another Company.
7.6 CERTAIN TRANSACTIONS. Borrowers shall not, and shall not permit any
of the other Companies to, enter into any transaction with, or pay any
management fees to, any Affiliate; PROVIDED, HOWEVER, that the Companies may
enter into transactions with (a) any other Company, and (b) with Affiliates
(other than the Companies) upon terms not less favorable to the Companies
than would be obtainable at the time in comparable, arms-length transactions
with Persons OTHER THAN Affiliates.
7.7 EXECUTIVE PERSONNEL. Borrowers shall not, and shall not permit any
of the other Companies (other than Xxxxx Golf Holding Corp.) to, permit
Xxxxxx Xxxxx to cease to be involved in its present executive management.
7.8 LIMITATION ON SALE OF PROPERTIES. Borrowers shall not, and shall
not permit any of the other Companies to (a) sell, assign, exchange, lease,
or otherwise dispose of any of its properties, rights, assets, or business,
whether now owned or hereafter acquired, except in the ordinary course of its
business and for a fair consideration, or (b) sell, assign, or discount any
accounts receivable.
7.9 ACQUISITIONS; SUBSIDIARIES. Borrowers shall not, and shall not
permit any of the other Companies to, (a) form, incorporate, acquire, or make
any Investment in any Subsidiary, except the Subsidiaries listed on EXHIBIT D
and wholly-owned After-Acquired Subsidiaries formed in accordance with
SECTION 6.13, or (b) acquire all or substantially all of the assets or Stock
of any class of any other Person, except for Investments permitted under
SECTION 7.5.
7.10 LIQUIDATION, MERGERS, CONSOLIDATIONS, AND DISPOSITIONS OF
SUBSTANTIAL ASSETS. Borrowers shall not, and shall not permit any of the
other Companies to, dissolve or liquidate, or become a party to any merger or
consolidation, or acquire by purchase, lease, or otherwise all or
substantially all of the assets or Stock of any Person, or sell, transfer,
lease, or otherwise dispose of all or any substantial part of its property or
assets or business; PROVIDED, HOWEVER, that any Company may merge with any
other Company.
7.11 LINES OF BUSINESS; RECEIVABLES POLICY. Borrowers shall not, and
shall not permit any of the other Companies to, directly or indirectly,
engage in any business OTHER THAN the sports equipment and accessories
business, or discontinue any of its material existing lines of business.
Borrowers shall not, and shall not permit any of the other Companies to, make
any material change in its credit and collection policy, which change would
materially impair the collectibility of its receivables, or rescind, cancel,
or modify any receivable, except in the ordinary course of business.
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
7.12 GUARANTIES. Borrowers shall not, and shall not permit any of the
other Companies to, become or be liable in respect of any Guaranty.
7.13 SALE AND LEASEBACK. Borrowers shall not, and shall not permit any
of the other Companies to, enter into any arrangement with any Person
pursuant to which any Company will lease, as lessee, any property which it
owned as of the date hereof and which it sold, transferred, or otherwise
disposed of to such other Person.
7.14 FIXED CHARGES COVERAGE. Borrowers shall not, as of the last day
of any fiscal quarter, permit the ratio of (a) the sum of Consolidated
Adjusted Net Income, PLUS federal, state, local, and foreign income taxes
deducted from Consolidated Adjusted Net Income in accordance with GAAP, PLUS
Fixed Charges, to (b) Fixed Charges, in each case for the four (4) fiscal
quarters ending on the date of determination, to be less than 3.0 to 1.0.
7.15 DEBT TO EBITDA. Borrowers shall not permit, as of the last day
of any fiscal quarter, the ratio of (a) all Indebtedness of the Companies as
of such date, to (b) EBITDA for the four (4) fiscal quarters ending on the
date of determination, to be greater than 2.0 to 1.0.
7.16 FISCAL YEAR. Borrowers shall not, and shall not permit any of the
other Companies to, change its fiscal year or method of accounting.
SECTION 8
EVENTS OF DEFAULT
8.1 EVENTS OF DEFAULT. An "EVENT OF DEFAULT" shall exist if any one
or more of the following events (herein collectively called "EVENTS OF
DEFAULT") shall occur and be continuing:
(a) any Company shall fail to pay when due the Obligation or any
part thereof; or
(b) any representation or warranty made under this Agreement, or any
of the other Loan Documents, shall prove to be untrue or inaccurate in any
material respect as of the date on which such representation or warranty is
made or deemed to have been made; or
(c) default shall occur in the performance of (i) any of the
covenants or agreements of any Company contained in SECTION 6.1 and SECTION
7, or (ii) any other covenants or agreements of any Company contained herein
or in any of the other Loan Documents and, in the case of (II), such failure
shall continue for thirty (30) days after written notice thereof from Lender
to Borrower; or
(d) default shall occur in the payment of any material Indebtedness
(OTHER THAN the Obligation) of any Company or default shall occur in respect
of any note or credit agreement relating to any such Indebtedness and such
default shall continue for more than the period of grace, if any, specified
therein; or
(e) any of the Loan Documents shall cease to be legal, valid, and
binding agreements enforceable against the Person executing the same in
accordance with its terms, shall be terminated,
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
become or be declared ineffective or inoperative or cease to provide the
respective liens, security interests, rights, titles, interests, remedies,
powers, or privileges intended to be provided thereby; or any Company shall
deny that such Company has any further liability or obligation under any of
the Loan Documents; or
(f) any Company shall (i) apply for or consent to the appointment of
a receiver, trustee, custodian, intervenor, or liquidator of itself or of all
or a substantial part of such Person's assets, (ii) file a voluntary petition
in bankruptcy, admit in writing that such Person is unable to pay such
Person's debts as they become due, or generally not pay such Person's debts
as they become due, (iii) make a general assignment for the benefit of
creditors, (iv) file a petition or answer seeking reorganization of an
arrangement with creditors or to take advantage of any bankruptcy or
insolvency laws, (v) file an answer admitting the material allegations of, or
consent to, or default in answering, a petition filed against such Person in
any bankruptcy, reorganization, or insolvency proceeding, or (vi) take
corporate or partnership action for the purpose of effecting any of the
foregoing; or
(g) an involuntary proceeding shall be commenced against any Company
seeking bankruptcy or reorganization of such Person or the appointment of a
receiver, custodian, trustee, liquidator, or other similar official of such
Person, or all or substantially all of such Person's assets, and such
proceeding shall not have been dismissed within sixty (60) days of the filing
thereof; or an order, order for relief, judgment, or decree shall be entered
by any court of competent jurisdiction or other competent authority approving
a petition or complaint seeking reorganization of any Company or appointing a
receiver, custodian, trustee, liquidator, or other similar official of such
Person, or of all or substantially all of such Person's assets; or
(h) any final judgment(s) for the payment of money in excess of the
sum of $100,000.00 in the aggregate shall be rendered against any Company and
such judgment(s) shall not be satisfied or discharged at least ten (10) days
prior to the date on which any of such Person's assets could be lawfully sold
to satisfy such judgment; or
(i) a Change in Control shall occur.
8.2 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default shall
occur and be continuing, then Lender may, without notice, exercise any one or
more of the following rights and remedies, and any other remedies provided in
any of the Loan Documents, as Lender in its sole discretion may deem
necessary or appropriate: (a) terminate Lender's commitment to lend
hereunder, (b) declare the Obligation or any part thereof to be forthwith due
and payable, whereupon the same shall forthwith become due and payable
without presentment, demand, protest, notice of default, notice of
acceleration or of intention to accelerate, or other notice of any kind, all
of which Borrowers hereby expressly waive, anything contained herein or in
the Note to the contrary notwithstanding, (c) reduce any claim to judgment,
or (d) without notice of default or demand, pursue and enforce any of
Lender's rights and remedies under the Loan Documents, or otherwise provided
under or pursuant to any applicable law or agreement; PROVIDED, HOWEVER, if
any Event of Default specified in SECTIONS 8.1(f) or (g) shall occur, then
the Obligation shall thereupon become due and payable concurrently therewith,
and Lender's obligation to lend shall immediately terminate hereunder,
without any further action by Lender and without presentment, demand,
protest, notice of default, notice of acceleration or of intention to
accelerate, or
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
other notice of any kind, all of which Borrowers hereby expressly waive.
8.3 PERFORMANCE BY LENDER. If any Company fails to perform any
covenant, duty, or agreement contained in any of the Loan Documents, then
Lender may perform or attempt to perform such covenant, duty, or agreement on
behalf of such Company. In such event, Borrowers shall, at the request of
Lender, promptly pay any amount expended by Lender in such performance or
attempted performance to Lender at its principal office in Dallas, Texas
together with interest thereon at the Maximum Rate from the date of such
expenditure until paid. Notwithstanding the foregoing, it is expressly
understood that Lender shall not assume any liability or responsibility for
the performance of any duties of any Company hereunder or under any of the
Loan Documents and none of the covenants or other provisions contained in
this Agreement shall, or shall be deemed to, give Lender the right or power
to exercise control over the management and affairs of any Company.
8.4 ORDER OF APPLICATION.
(a) NO DEFAULT. If no Event of Default exists, then except as
specifically provided in the Loan Documents, any payments shall be applied to
the Obligation in the order and manner as Borrowers direct.
(b) DEFAULT. If an Event of Default exists, then any payment
(including proceeds from the exercise of any rights and remedies in any
collateral, if any) shall be applied in the following order:
(i) to all fees and expenses which Lender has not been paid or
reimbursed in accordance with the Loan Documents;
(ii) to accrued interest on the Principal Debt;
(iii) to the remaining Obligation in the order and manner as
Lender deems appropriate; and
(iv) as a deposit with Lender as security for the payment of
any LC Exposure.
SECTION 9
MISCELLANEOUS
9.1 ACCOUNTING REPORTS. All financial reports or projections
furnished by any Person to Lender pursuant to this Agreement shall be
prepared in such form and such detail as shall be satisfactory to Lender,
shall be prepared on the same basis as those prepared by such Person in prior
years, and, where applicable, shall be the same financial reports and
projections as those furnished to such Person's officers and directors.
9.2 WAIVER. No failure to exercise, and no delay in exercising, on
the part of Lender, any right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right. The rights of
Lender under the Loan Documents shall be in addition to all other rights
provided by law. No modification or waiver of
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
any provision of any Loan Document, nor consent to departure therefrom, shall
be effective unless in writing and no such consent or waiver shall extend
beyond the particular case and purpose involved. No notice or demand given in
any case shall constitute a waiver of the right to take other action in the
same, similar, or other instances without such notice or demand.
9.3 PAYMENT OF EXPENSES. Borrowers agree to pay Lender on demand all
out-of-pocket costs and expenses of Lender (including, without limitation,
the reasonable attorneys' fees of Lender's counsel) incurred in connection
with the preservation and enforcement of Lender's rights under the Loan
Documents, and all reasonable costs and expenses of Lender (including without
limitation the reasonable fees and expenses of Lender's counsel) in
connection with the negotiation, preparation, execution, delivery, and
administration of the Loan Documents (except for the costs and expenses
related to the negotiation, preparation, execution, and delivery of this
Agreement and the Loan Documents executed on or prior to the date hereof).
9.4 NOTICES. Any communications required or permitted to be given by
any of the Loan Documents must be (a) in writing and personally delivered or
mailed by prepaid certified or registered mail, or (b) made by facsimile
transmission delivered or transmitted, to the party to whom such notice of
communication is directed, to the address of such party shown opposite its
name on the signature pages hereof. Any such communication shall be deemed to
have been given (whether actually received or not) on the day it is
personally delivered or, if transmitted by facsimile transmission, on the day
that such communication is transmitted as aforesaid subject to telephone
confirmation of receipt; PROVIDED, HOWEVER, that any notice received by
Lender after 10:00 a.m. Dallas, Texas time on any day from Borrowers pursuant
to SECTION 2.2 (with respect to a Notice of Borrowing) or SECTION 2.3 (with
respect to an LC Request) shall be deemed for the purposes of such SECTION to
have been given by Borrowers on the next succeeding day, or if mailed, on the
third (3rd) day after it is marked as aforesaid. Any party may change its
address for purposes of this Agreement by giving notice of such change to the
other parties pursuant to this SECTION 9.4.
9.5 GOVERNING LAW. THIS AGREEMENT HAS BEEN PREPARED, IS BEING
EXECUTED AND DELIVERED, AND IS INTENDED TO BE PERFORMED IN THE STATE OF TEXAS
AND THE SUBSTANTIVE LAWS OF SUCH STATE AND THE APPLICABLE FEDERAL LAWS OF THE
UNITED STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION,
ENFORCEMENT, AND INTERPRETATION OF THIS AGREEMENT AND ALL OF THE OTHER LOAN
DOCUMENTS.
9.6 CHOICE OF FORUM; CONSENT TO SERVICE OF PROCESS AND JURISDICTION.
Any suit, action, or proceeding against Borrowers with respect to this
Agreement, the Note, or other Loan Documents, or any judgment entered by any
court in respect thereof, may be brought in the courts of the State of Texas,
County of Dallas, or in the United States courts located in the State of
Texas as Lender in its sole discretion may elect and Borrowers hereby
irrevocably submit to the nonexclusive jurisdiction of such courts for the
purpose of any such suit, action, or proceeding. Borrowers hereby irrevocably
consent to the service of process in any suit, action, or proceeding in said
court by the mailing thereof by Lender by registered or certified mail,
postage prepaid, to each Borrower's address shown opposite its name on the
signature pages hereof. Nothing herein or in any of the other Loan Documents
shall affect the right of Lender to serve process in any other manner
permitted by law or shall limit the right of Lender to bring any action or
proceeding against Borrowers or with respect to any of its property in courts
in other jurisdiction. Borrowers hereby irrevocably waive any objections
which it may now or hereafter have to
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
the laying of venue of any suit, action, or proceeding arising out of or
relating to this Agreement, the Note, or any other Loan Documents brought in
the courts located in the State of Texas, County of Dallas, and hereby
further irrevocably waive any claim that any such suit, action, or proceeding
brought in any such court has been brought in any inconvenient forum. Any
action or proceeding by any Borrower against Lender shall be brought only in
a court located in Dallas County, Texas.
9.7 INVALID PROVISIONS. Any provision of any Loan Document held by a
court of competent jurisdiction to be illegal, invalid or unenforceable and
shall not invalidate the remaining provisions of such Loan Document which
shall remain in full force and the effect thereof shall be confined to the
provision held invalid or illegal.
9.8 MAXIMUM INTEREST RATE. Regardless of any provision contained in
any of the Loan Documents, Lender shall never be entitled to receive,
collect, or apply as interest (whether termed interest herein or deemed to be
interest by operation of law or judicial determination) on the Note any
amount in excess of interest calculated at the Maximum Rate, and, in the
event that any Lender ever receives, collects, or applies as interest any
such excess, then the amount which would be excessive interest shall be
deemed to be a partial prepayment of principal and treated hereunder as such;
and, if the principal amount of the Obligation is paid in full, then any
remaining excess shall forthwith be paid to Borrowers. In determining whether
or not the interest paid or payable under any specific contingency exceeds
interest calculated at the Maximum Rate, Borrowers and Lender shall, to the
maximum extent permitted under applicable law: (a) characterize any
non-principal payment as an expense, fee, or premium rather than as interest;
(b) exclude voluntary prepayments and the effects thereof; and (c) amortize,
prorate, allocate, and spread, in equal parts, the total amount of interest
throughout the entire contemplated term of the Note; PROVIDED THAT, if the
Note is paid and performed in full prior to the end of the full contemplated
term thereof, and if the interest received for the actual period of existence
thereof exceeds interest calculated at the Maximum Rate, then Lender shall
refund to Borrowers the amount of such excess or credit the amount of such
excess against the principal amount of the Note and, in such event, Lender
shall not be subject to any penalties provided by any laws for contracting
for, charging, taking, reserving, or receiving interest in excess of interest
calculated at the Maximum Rate.
9.9 NON-LIABILITY OF LENDER. The relationship between the Companies
and Lender is, and shall at all times remain, solely that of borrower and
lender and Lender has no fiduciary or other special relationship with any
Company.
9.10 OFFSET. Borrowers hereby grant to Lender the right of offset,
to secure repayment of the Obligation, upon any and all moneys, securities,
or other property of Borrowers and the proceeds therefrom, now or hereafter
held or received by or in transit to Lender or its agents, from or for the
account of Borrowers or any Guarantor, whether for safe keeping, custody,
pledge, transmission, collection, or otherwise, and also upon any and all
deposits (general or special) and credits of each Borrower, and any and all
claims of Borrowers against Lender at any time existing.
9.11 SUCCESSORS AND ASSIGNS. The Loan Documents shall be binding
upon and inure to the benefit of Borrowers and Lender and their respective
successors, assigns, and legal representatives; PROVIDED, HOWEVER, that
Borrowers may not, without the prior written consent of Lender, assign any
rights, powers, duties, or obligations thereunder. Lender reserves the right
to sell all or a portion of its interest in the Loan Documents, and Lender
shall have the right to disclose any information in its
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
possession regarding any Company, or any assets pledged to Lender in
connection herewith to any potential transferee of the Note or any part
thereof.
9.12 TEXAS FINANCE CODE. Borrowers and Lender hereby agree that the
provisions of CHAPTER 346 of the TEXAS FINANCE CODE, as amended (regulating
certain revolving credit loans and revolving tri-party accounts), shall not
apply to the Loan Documents.
9.13 HEADINGS. SECTION headings are for convenience of reference
only and shall in no way affect the interpretation of this Agreement.
9.14 SURVIVAL. All representations and warranties made by Borrowers
herein shall survive delivery of the Note and the making of the Loan.
9.15 PARTICIPATIONS. Lender shall have the right to enter into
participation agreements with other banks with respect to the Note, and grant
participations in the rate of other loan documents but such participation
shall not affect the rights and duties of such Lender hereunder vis-a-vis
Borrowers. Each actual or proposed participant shall be entitled to receive
all information received by Lender regarding the creditworthiness of
Borrowers, including, without limitation, information required to be
disclosed to a participant pursuant to BANKING CIRCULAR 181 (REV., AUGUST 2,
1984), issued by the Comptroller of the Currency (whether the actual or
proposed participant is subject to the circular or not).
9.16 NO THIRD PARTY BENEFICIARY. The parties do not intend the
benefits of this Agreement to inure to any third party, nor shall any Loan
Document or any course of conduct by any party hereto be construed to make or
render Lender or any of its officers, directors, agents, or employees liable
(a) to any materialman, supplier, contractor, subcontractor, purchaser, or
lessee of any property owned by any Borrower, or (b) for debts or claims
accruing to any such Persons against any Borrower.
9.17 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, BORROWERS HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO
A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED
UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY OF THE
LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF
LENDER IN THE NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
9.18 CAPITAL ADEQUACY. If, after the date hereof, Lender shall have
determined that either (a) the adoption of any applicable law, rule,
regulation, or guideline regarding capital adequacy, or any change therein,
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or (b) compliance by Lender (or any
lending office of Lender) with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority,
central bank, or comparable agency, has or would have the effect of reducing
the rate of return on Lender's capital as a consequence of its or Borrowers'
obligations hereunder to a level below that which Lender could have achieved
but for such adoption, change, or compliance (taking into consideration
Lender's policies with respect to capital adequacy) by an amount deemed by
Lender to be material, then from time-to-time, within ten (10) days after
demand by Lender, Borrowers shall pay to Lender such additional amount or
amounts as will adequately compensate Lender for such reduction. Lender will
promptly notify Borrowers of any event of which it has actual knowledge,
occurring after the date thereof, which will
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
entitle Lender to compensation pursuant to this SECTION 9.18. A certificate
of Lender claiming compensation under this SECTION 9.18 and setting forth the
additional amount or amounts to be paid to it hereunder, together with the
description of the manner in which such amounts have been calculated, shall
be conclusive in the absence of manifest error. In determining such amount,
Lender may use any reasonable averaging and attribution methods.
9.19 MULTIPLE COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same agreement, and any of the parties hereto may execute this Agreement
by signing any such counterpart.
9.20 ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE
PARTIES HERETO INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY
CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY
BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE
FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ENDISPUTE OR ANY
SUCCESSOR THEREOF (J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE
EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY
PARTY TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS
AGREEMENT APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
(a) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF
BORROWERS' DOMICILE AT THE TIME OF THIS AGREEMENT'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS
UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE
AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS. THE PARTIES
SHALL REQUEST THAT THE ARBITRATOR SHALL MAKE FINDINGS OF FACT AND CONCLUSIONS
OF LAW IN CONNECTION WITH SUCH ARBITRATION PROCEEDING, PROVIDED THAT SUCH
FINDINGS OF FACT AND CONCLUSIONS OF LAW SHALL NOT AFFECT THE FINALITY OF THE
ARBITRATOR'S DECISION.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED
TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE
A WAIVER BY LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SS. 91 OR
ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF LENDER
HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SET-OFF, OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF OR THE APPOINTMENT OF A
RECEIVER. LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH
PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AGREEMENT. AT LENDER'S OPTION, FORECLOSURE UNDER A DEED OF TRUST OR MORTGAGE
MAY BE ACCOMPLISHED BY ANY OF THE FOLLOWING: THE EXERCISE OF A POWER OF SALE
UNDER THE DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL SALE UNDER THE DEED OF
TRUST OR MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THIS EXERCISE OF SELF
HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE
OR PROVISIONAL OR ANCILLARY
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE
CLAIMANT IN ANY SUCH ACTION TO ARBITRATE THE MERITS OF THE CONTROVERSY OR
CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
(c) CONFIDENTIALITY. ANY ARBITRATION PROCEEDING, AWARD, FINDINGS OF
FACT, CONCLUSIONS OF LAW, OR OTHER INFORMATION CONCERNING SUCH ARBITRATION
MATTERS SHALL BE HELD IN CONFIDENCE BY THE PARTIES AND SHALL NOT BE DISCLOSED
EXCEPT TO EACH PARTIES EMPLOYEES OR AGENTS AS SHALL BE REASONABLY NECESSARY
FOR SUCH PARTY TO CONDUCT ITS BUSINESS; PROVIDED, HOWEVER, THAT EITHER PARTY
MAY DISCLOSE SUCH INFORMATION FOR AUDITING PURPOSES BY INDEPENDENT CERTIFIED
ACCOUNTANTS, FOR COMPLYING WITH APPLICABLE GOVERNMENTAL LAWS, REGULATIONS OR
COURT ORDERS, OR THAT IS OR BECOMES PART OF THE PUBLIC DOMAIN THROUGH NO
BREACH OF THIS AGREEMENT.
9.21 ENTIRETY. THIS AGREEMENT, THE NOTE, AND THE OTHER LOAN
DOCUMENTS REFERRED TO HEREIN EMBODY THE FINAL, ENTIRE AGREEMENT AMONG THE
PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS, AGREEMENTS,
REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, RELATING TO THE
SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE
PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE PARTIES HERETO. THE
PROVISIONS OF THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH ANY
BORROWER IS A PARTY MAY BE AMENDED OR WAIVED ONLY BY AN INSTRUMENT IN WRITING
SIGNED BY THE PARTIES HERETO.
9.22 CONFIDENTIALITY. Lender agrees to keep confidential any
information furnished or made available to it by any Company pursuant to this
Agreement that is marked confidential; PROVIDED THAT nothing herein shall
prevent Lender from disclosing such information (a) to any Affiliate of
Lender, or any officer, director, employee, agent, or advisor of Lender or
any Affiliate of Lender, (b) to any other Person if reasonably incidental to
the administration of the credit facility provided herein, (c) as required by
any Legal Requirement, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any Governmental Authority, (f)
that is or becomes available to the public or that otherwise becomes
available to Lender other than as a result of a disclosure by Lender
prohibited by this Agreement, (g) in connection with any litigation to which
Lender or any of its Affiliates may be a party, (h) to the extent necessary
in connection with the exercise of any remedy under this Agreement or any
other Loan Document, and (i) subject to provisions substantially similar to
those contained in this SECTION, to any actual or proposed participant or
assignee.
9.23 AMENDMENT AND RESTATEMENT. This Agreement is in renewal,
extension, modification, amendment, and restatement of the Original Loan
Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES TO FOLLOW]
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
IN WITNESS WHEREOF, the undersigned have executed this Agreement as
of the day and year first above written.
Address for Notice: BORROWERS:
c/x Xxxxx Golf, Inc. XXXXX GOLF DIRECT RESPONSE, LTD.,
0000 Xxxx Xxxxx Xxxxxxx
Xxxxx, Xxxxx 00000 By: XXXXX GOLF GP CORP., a Delaware
Attention: Xxxx X. Xxxxxxxx corporation, General Partner
Telecopy No: 000-000-0000
By:
Name:
Title:
Address for Notice: XXXXX GOLF, LTD., a Texas limited
partnership
c/x Xxxxx Golf, Inc.
0000 Xxxx Xxxxx Xxxxxxx By: XXXXX GOLF GP CORP., a Delaware
Xxxxx, Xxxxx 00000 corporation, General Partner
Attention: Xxxx X. Xxxxxxxx
Telecopy No: 000-000-0000 By:
Name:
Title:
Address for Notice: LENDER:
000 Xxxx Xxxxxx, 0xx Xxxxx XXXXXXXXXXX, X.X., a national
P.O. Box 831000 banking association (successor in
Xxxxxx, Xxxxx 00000 interest by merger to NationsBank
Attention: Xx. Xxxxxxx X. Xxxxxxxxxx of Texas, N.A.)
Telecopy No.: (000) 000-0000
By:
Xxxxxxx X. Xxxxxxxxxx
Senior Vice President
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT D-0601350.3
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NationsBank, N.A. AMENDED AND RESTATED PROMISSORY NOTE
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Date February 26, 1999
Amount $ 10,000,000.00
FOR VALUE RECEIVED, the undersigned (jointly and severally, "Borrowers")
unconditionally promise to pay to the order of NationsBank, N.A., successor
in interest by merger to NationsBank of Texas, N.A. ("Bank"), Dallas (Banking
Center) without setoff, at its offices at 000 XXXX XXXXXX, XXXXXX, Xxxxx, or
at such other place as may be designated by Bank, the principal amount of TEN
MILLION AND NO/100 Dollars ($10,000,000.00), or so much thereof as may be
advanced from time to time in immediately available funds, together with
interest computed daily on the outstanding principal balance hereunder, at an
annual interest rate, and in accordance with the payment schedule, indicated
below. [This Note contains some provisions preceded by boxes. Xxxx only those
boxes beside provisions which will be applicable to this transaction. A box
which is not marked means that the provision beside it is not applicable to
this transaction.]
RATE
/ / PRIME RATE. The rate shall be the Prime Rate, plus __________ percent, per
annum. The "Prime Rate" is the fluctuating rate of interest established
by Bank from time to time, at its discretion, whether or not such rate
shall be otherwise published. The Prime Rate is established by Bank as
an index or base rate and may or may not at any time be the best or
lowest rate charged by Bank on any loan.
/ / FIXED RATE. The Rate shall be fixed at __________ percent, per annum.
/ / TREASURY SECURITIES RATE. The Rate shall be the Treasury Securities Rate,
plus __________ percent, per annum. The "Treasury Securities Rate" is a
fluctuating rate of interest applied by Bank from time to time, based on
the most recent monthly average of daily yields on all outstanding United
States Treasury Securities adjusted to a constant maturity of ___________
years, as made available by the Federal Reserve Board, rounded upwards to
the nearest one-eighth of one percentage point (0.125%).
/X/ OTHER. THE RATE SHALL BE THE BASE RATE PLUS THE APPLICABLE MARGIN OR
THE ADJUSTED EURODOLLAR RATE PLUS THE APPLICABLE MARGIN (AS SUCH
TERMS ARE DEFINED BELOW), AS SELECTED BY BORROWERS PURSUANT TO THE
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT DATED OF EVEN DATE
HEREWITH, EXECUTED BY BORROWERS AND BANK (AS MODIFIED, AMENDED,
RENEWED, EXTENDED, AND RESTATED FROM TIME TO TIME, THE "CREDIT
AGREEMENT").
Notwithstanding any other provision contained in this Note, Bank does not
intend to charge and Borrowers shall not be required to pay any amount of
interest or other fees or charges that is in excess of the maximum permitted
by applicable law. Borrowers agree that during the full term hereof, the
maximum lawful interest rate for this Note as determined under Texas law
shall be the monthly ceiling as specified in Article 5069-1.D. of the
V.A.T.S. Further, to the extent that any other lawful rate ceiling exceeds
the rate ceiling so determined, then the higher rate ceiling shall apply. Any
payment in excess of such maximum shall be refunded to Borrowers or credited
against principal, at the option of Bank.
ACCRUAL METHOD
Interest at the Rate set forth above, unless otherwise indicated, will be
calculated on the basis of the 365/360 method, which computes a daily amount
of interest for a hypothetical year of 360 days, then multiplies such amount
by the actual number of days elapsed in an interest calculation period.
RATE CHANGE DATE
Any Rate based on a fluctuating index or base rate will change, unless
otherwise provided, each time and as of the date that the index or base rate
changes. In the event any index is discontinued, Bank shall substitute an
index determined by Bank to be comparable, in its sole discretion.
PAYMENT SCHEDULE
All payments received hereunder shall be applied first to the payment of any
expense or charges payable hereunder or under any other documents executed in
connection with this Note ("Loan Documents"), then to interest due and
payable, with the balance being applied to principal, or in such other order
as Bank shall determine at its option.
/ / PRINCIPAL Principal shall be paid in __________ (_____) equal: / / monthly,
/ / quarterly or / / PLUS installments of $__________ each, commencing on
__________, 19__,
INTEREST together with accrued interest thereon and continuing on the same
day of each successive month/quarter/or other period (as applicable)
thereafter, with a final payment of all unpaid principal and interest thereon
on __________, 19__.
/ / PRINCIPAL Principal and interest shall be paid in __________ (_____)
equal: / / monthly, (_____) equal: / / monthly, / / quarterly or / / AND
installments of $__________ each, commencing on ____, 19__,
INTEREST and continuing on the same day of each successive month/quarter/or
other period (as applicable) thereafter, with a final payment of all unpaid
principal and interest thereon on __________, 19__; provided that, if accrued
interest on any payment exceeds the installment amount set forth above,
Borrowers will pay an additional amount equal to such excess interest.
/X/ SINGLE Principal shall be paid in full in a single payment on May 31,
2000. Interest thereon shall be payable as provided in the Credit Agreement.
/ / DEMAND. NOTWITHSTANDING ANY PROVISIONS CONTAINED HEREIN WHICH MAY BE
INCONSISTENT WITH A DEMAND NOTE, INCLUDING BUT NOT LIMITED TO ANY REFERENCES
TO INSTALLMENTS, A MATURITY DATE, ACCELERATION OR EVENTS OF DEFAULT,
BORROWERS ACKNOWLEDGE THAT BANK MAY DEMAND PAYMENT AT ANY TIME, IN ITS SOLE
DISCRETION.
/ / OTHER
REVOLVING FEATURE
/X/ Borrowers may borrow, repay and reborrow hereunder at any time, up
to a maximum aggregate amount outstanding at any one time equal to
the principal amount of this Note; provided, however, that Borrowers
are not in default under any provision of the Credit Agreement, this
Note, any Loan Document, or any other obligation of Borrowers to
Bank, and provided that the borrowings hereunder do not exceed any
limitations on borrowings by Borrowers set forth in the Credit
Agreement. Bank shall have no liability for its
AMENDED AND RESTATED PROMISSORY
refusal to advance funds based upon its determination that any
conditions of such further advances have not been met. Bank records
of the amounts borrowed from time to time shall be conclusive proof
thereof.
AUTOMATIC PAYMENT
/ / Borrowers have elected to authorize Bank to effect payment of sums due
under this Note by means of debiting Borrowers' account number
_____________. This authorization shall not affect the obligation of
Borrowers to pay such sums when due, without notice, if there are
insufficient funds in such account to make such payment in full on the
due date thereof, or if Bank fails to debit the account.
BORROWERS REPRESENT TO BANK THAT THE PROCEEDS OF THIS LOAN ARE TO BE USED
PRIMARILY FOR BUSINESS, COMMERCIAL OR AGRICULTURAL PURPOSES. BORROWERS
ACKNOWLEDGE HAVING READ AND UNDERSTOOD, AND AGREE TO BE BOUND BY, ALL TERMS
AND CONDITIONS OF THIS NOTE.
ADDITIONAL TERMS AND CONDITIONS
1. WAIVERS, CONSENTS AND COVENANTS. Borrowers, any indorser, or guarantor
hereof or any other party hereto (collectively "Obligors") and each of them
jointly and severally (a) waive presentment, demand, notice of demand, notice
of intent to accelerate, and notice of acceleration of maturity, protest,
notice of protest, notice of nonpayment, notice of dishonor, and any other
notice required to be given under the law to any of Obligors, in connection
with the delivery, acceptance, performance, default or enforcement of this
Note, of any indorsement or guaranty of this Note of any Loan Documents; (b)
consent to any and all delays, extensions, renewals or other modifications of
this Note or the Loan Documents, or waivers of any term hereof or of the Loan
Documents, or releases or discharge by Bank of any of Obligors or release,
substitution, or exchange of any security for the payment hereof, or the
failure to act on the part of Bank or any indulgence shown by Bank, from time
to time and in one or more instances (without notice to or further assent
from any Obligors) and agree that no such action, failure to act or failure
to exercise any right or remedy on the part of Bank shall in any way affect
or impair the obligations of any Obligors or be construed as a waiver by Bank
of, or otherwise affect, any of Bank's rights under this Note, under any
indorsement or guaranty of this Note or under any of the Loan Documents; and
(c) agree to pay, on demand, all out-of-pocket costs and expenses of
collection of this Note or of any indorsement or guaranty hereof and/or the
enforcement of Bank's rights with respect to, or the administration,
preservation, protection of, or realization upon, any property securing
payment hereof, including, without limitation, reasonable attorney's fees,
including fees related to any trial, arbitration, bankruptcy, appeal or other
proceeding.
2. INDEMNIFICATION. Obligors agree to promptly pay, indemnify and hold Bank
harmless from all state and federal taxes of any kind and other liabilities
with respect to or resulting from advances made pursuant to this Note. If
this Note has a revolving feature and is secured by a mortgage, Obligors
expressly consent to the deduction of any applicable taxes from each taxable
advance extended by Bank.
3. PREPAYMENTS. Subject to the terms and conditions set forth in the Credit
Agreement, prepayments may be made in whole or in part at any time on any
loan for which the Rate is based on the Prime Rate. All prepayments of
principal shall be applied in the inverse order of maturity, or in such other
order as Bank shall determine in its sole discretion. Except as set forth in
the Credit Agreement, no prepayment of any other loan shall be permitted
without the prior written consent of Bank.
4. EVENTS OF DEFAULT. A "default" or an "event of default" shall exist if an
Event of Default (as defined in the Credit Agreement) shall occur and be
continuing.
5. REMEDIES UPON DEFAULT. Whenever there is a default under this Note (a) the
entire balance outstanding and all other obligations of Obligor to Bank
(however acquired or evidenced) shall, at the option of Bank, become
immediately due and payable, and/or (b) to the extent permitted by law, the
Rate of interest on the unpaid principal shall, at the option of the Bank, be
increased at Bank's discretion up to the maximum rate allowed by law, or if
none, 14% per annum, (the "Default Rate"). The provisions herein for a
Default Rate or a delinquency charge shall not be deemed to extend the time
for any payment hereunder or to constitute a "grace period" giving the
Obligors a right to cure any default. At Bank's option, any accrued and
unpaid interest, fees or charges may, for purposes of computing and accruing
interest on a daily basis after the due date of the Note or any installment
thereof, be deemed to be a part of the principal balance, and interest shall
accrue on a daily compounded basis after such date at the rate provided in
this Note until the entire outstanding balance of principal and interest is
paid in full. Bank is hereby authorized at any time to set off and charge
against any deposit accounts of any Obligor, as well as any other property of
such party at or under the control of Bank, without notice or demand, any and
all obligations due hereunder.
6. NON-WAIVER. The failure at any time of Bank to exercise any of its options
or any other rights hereunder shall not constitute a waiver thereof, nor
shall it be a bar to the exercise of any of its options or rights at a later
date. All rights and remedies of Bank shall be cumulative and may be pursued
singly, successively or together, at the option of Bank. The acceptance by
Bank of any partial payment shall not constitute a waiver of any default or
of any Bank's rights under this Note. No waiver of nay of its rights
hereunder, and no modification or amendment of this Note, shall be deemed to
be made by Bank unless the same shall be in writing, duly signed on behalf of
Bank; and each such waiver, if any, shall apply only with respect to the
specific instance involved, and shall in no way impair the rights of Bank or
the obligations of Obligor to Bank in any other respect at any other time.
7. APPLICABLE LAW. This Note is delivered in and shall be construed under the
internal laws and judicial decisions of the State of Texas, and the laws of
the United States as the same may be applicable.
8. PARTIAL INVALIDITY. The unenforceability or invalidity of any provision of
this Note shall not affect the enforceability or the validity of any other
provision herein and the invalidity or unenforceability of any provision of
this Note or of the Loan Documents to any person or circumstance shall not
affect the enforceability or validity of such provision as it may apply to
other persons or circumstances.
9. JURISDICTION AND VENUE. In any litigation in connection with or to
enforce this Note or any indorsement or guaranty of this Note or any Loan
Documents, Obligors, and each of them, irrevocably consent to and confer
personal jurisdiction on the courts of the State of Texas or the United
States courts located within the State of Texas, and expressly waive any
objections as to venue in any such courts, and agree that service of process
may be made on Obligors by mailing a copy of the summons and complaint by
registered or certified mail, return receipt requested, to their respective
addresses. Nothing contained herein shall, however, prevent Bank from
bringing any action or exercising any rights within any other state or
jurisdiction or from obtaining personal jurisdiction by any other means
available by applicable law.
10. INTEREST DEFINITIONS AND TERMS.
(a) DEFINITIONS.
"ADJUSTED EURODOLLAR RATE" means an interest rate per annum
(rounded upwards, if necessary, to the next 1/16th of 1%) equal to
the sum of the quotient of (a) the Eurodollar Rate with respect to
such Interest Period, divided by (b) the remainder of 1.00 MINUS the
Eurodollar Reserve Requirement in effect on such date.
AMENDED AND RESTATED PROMISSORY NOTE d-601455.1
"APPLICABLE MARGIN" means, at the time of determination
thereof, the interest margin over the Base Rate or the Adjusted Eurodollar
Rate, as the case may be, as follows:
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APPLICABLE MARGIN APPLICABLE MARGIN EURODOLLAR
BASE RATE BORROWINGS BORROWINGS
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-0.50% 1.00%
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"BASE RATE" means the sum of the variable rate of interest
established from time-to-time by Bank as its general reference rate
of interest (which rate of interest may not be the lowest rate
charged by Bank on similar loans). Each change in the Base Rate
shall become effective without prior notice to Borrowers
automatically as of the opening of business on the date of such
change in the Base Rate.
"EURODOLLAR RATE" means the rate per annum (rounded upwards,
if necessary, to the nearest 1/16th of one percent) equal to the
rate appearing on the Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two (2) Business Days prior
to the first (1st) day of such Interest Period for a term comparable
to such Interest Period. If for any reason the Dow Xxxxx Markets
Page 3750 rate is not available, then the "EURODOLLAR RATE" shall be
the rate appearing on the Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately
11:00 a.m. (London time) two (2) Business Days prior to the first
(1st) day of the such Interest Period for a term comparable to such
Interest Period; PROVIDED, HOWEVER, if more than one rate is
specified on the Reuters Screen LIBO Page, then the applicable rate
shall be the arithmetic mean of all such rates.
"EURODOLLAR RESERVE REQUIREMENT" means, on any day, that
percentage (expressed as a decimal fraction) that is in effect on
such day, as provided by the Board of Governors of the Federal
Reserve System (or any successor governmental body), applied for
determining the maximum reserve requirements (including, without
limitation, basic, supplemental, marginal, and emergency reserves)
under Regulation D, with respect to "EUROCURRENCY LIABILITIES" as
currently defined in Regulation D, or under any similar or successor
regulation with respect to Eurocurrency liabilities or Eurocurrency
funding. Each determination by Bank of the Eurodollar Reserve
Requirement shall, in the absence of manifest error, be conclusive
and binding.
(b) INTEREST PERIODS, TERMS, ETC. Reference is hereby made to the Credit
Agreement for certain provisions relating the determination of the
Base Rate and the Eurodollar Rate and Borrowers' rights,
limitations, and restrictions to select such rates.
11. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS NOTE OR
ANY RELATED NOTES OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON OR ARISING
FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE FOR THE
ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S. D/B/A ENDISPUTE, INC.
("J.A.M.S.") AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THE NOTE
MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO COMPEL
ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS NOTE APPLIES IN ANY
COURT HAVING JURISDICTION OVER SUCH ACTION.
(A) SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY
OF BORROWERS' DOMICILE AT THE TIME OF THE NOTE'S EXECUTION AND ADMINISTERED
BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR,; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90
DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY, UPON
A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING
FOR AN ADDITIONAL 60 DAYS.
(B) RESERVATION OF RIGHTS. NOTHING IN THIS NOTE SHALL BE DEEMED
TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS NOTE; OR (II) BE A
WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SS.91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK
HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SETOFF, OR (B) TO FORECLOSURE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE
APPOINTMENT OF A RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSURE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS NOTE. NEITHER THE EXERCISE OR SELF HELP REMEDIES NOR
THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR
ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY,
INCLUDING THE CLAIMANT IN SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
12. BINDING EFFECT. This note shall be binding upon and inure to the benefit
of Borrowers, Obligors and Bank and their respective successor, assigns,
heirs and personal representatives, provided, however, that no obligations of
the Borrowers or the Obligors hereunder can be assigned without prior written
consent of Bank.
13. NOTICE OF FINAL AGREEMENT. THIS WRITTEN PROMISSORY NOTE AND ANY OTHER
DOCUMENTS EXECUTED IN CONNECTION HEREWITH REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
14. RENEWAL NOTE. This note is in modification, amendment, renewal,
extension, and restatement, but not extinguishment, of that certain
Promissory Note dated as of February 27, 1998, executed by Borrowers and
payable to the order of Bank in the original principal amount of
$10,000,000.00.
BORROWERS:
AMENDED AND RESTATED PROMISSORY NOTE d-601455.1
XXXXX GOLF DIRECT RESPONSE, LTD., a Texas
limited partnership
By: XXXXX GOLF GP CORP., a Delaware corporation,
General Partner
By:
Name:
Title:
XXXXX GOLF, LTD., a Texas limited partnership
By: XXXXX GOLF GP CORP., a Delaware corporation,
General Partner
By:
Name:
Title:
AMENDED AND RESTATED PROMISSORY NOTE d-601455.1
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NationsBank, N.A. AMENDED AND RESTATED CONTINUING AND UNCONDITIONAL GUARANTY
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1. GUARANTY. FOR VALUE RECEIVED, and to induce NationsBank, N.A., DALLAS
COMMERCIAL BANKING
Banking Center
000 XXXX XXXXXX, 0XX XXXXX, XXXXXX, XXXXX, 00000
Bank Street Address City State Zip Code
(Attn: XX. XXXXXXX X. XXXXXXXXXX) (herein called "Bank"), to make loans or
advances or to extend credit or other financial accommodations or benefits,
with or without security, to or for the account of
XXXXX GOLF DIRECT RESPONSE, LTD. AND/OR XXXXX GOLF, LTD.
Borrower's Name
0000 XXXX XXXXX XXXXXXX, XXXXX, XXXXX, 00000
Street Address City State Zip Code
(herein collectively called "Borrowers"), the undersigned (jointly and
severally called "Guarantors"), jointly and severally, hereby become surety
for and irrevocably and unconditionally guarantee to Bank the full and prompt
payment when due, whether by acceleration or otherwise, of any and all
Liabilities (as hereinafter defined) of Borrowers to Bank, together with
reasonable attorneys' fees, costs and expenses incurred by Bank in enforcing
any and all of such indebtedness. This Guaranty is continuing and unlimited
as to the amount.
Guarantors further unconditionally guarantee the faithful, prompt and
complete compliance by Borrowers with all terms, conditions, covenants,
agreements and undertakings of Borrowers (herein collectively referred to as
the "Obligations") under all notes and other documents evidencing the
Liabilities, as hereinafter defined, and under all deeds to secure debt,
deeds of trust, mortgages, security agreements and other agreements,
documents and instruments executed in connection with the Liabilities or
related thereto (all such deeds to secure debt, deeds of trust, mortgages,
security agreements and other documents securing payment of the Liabilities
and all notes and other agreements, documents, and instruments evidencing or
relating to the Liabilities and Obligations being herein collectively called
the "Loan Documents"). The undertakings of Guarantors hereunder are
independent of the Liabilities and Obligations of Borrowers and a separate
action or actions for payment, damages or performance may be brought or
prosecuted against Guarantors, whether or not an action is brought against
Borrowers or to realize upon the security for the Liabilities and/or
Obligations and whether or not Borrowers are joined in any such action or
actions, and whether or not notice is given or demand is made upon the
Borrowers.
Bank shall not be required to proceed first against any Borrower, or any
other person, firm or corporation, whether primarily or secondarily liable,
or against any Collateral held by it, before resorting to Guarantors for
payment, and Guarantors shall not be entitled to assert as a defense to the
enforceability of the Guaranty any defense of any Borrower with respect to
any Liabilities or Obligations.
2. PARAGRAPH HEADINGS AND GOVERNING LAW. Guarantors agree that the paragraph
headings in this Guaranty are for convenience only and that they will not
limit any of the provisions of this Guaranty. Guarantors further agree that
this Guaranty shall be governed by and construed in accordance with the laws
of the State of Texas and applicable United States federal law. Guarantors
further agree that this Guaranty shall be deemed to have been made in the
State of Texas at Bank's address indicated herein, and shall be governed by,
and construed in accordance with, the laws of the State of Texas, or the
United States courts located within the State of Texas, and is performable in
Dallas, Dallas County, Texas.
3. DEFINITIONS.
A. "Liability" or "Liabilities" as used herein shall include without
limitation, all liabilities, overdrafts, indebtedness, and obligations of
Borrowers to Bank, whether direct or indirect, absolute or contingent, joint
or several, secured or unsecured, due or not due, contractual or tortious,
liquidated or unliquidated, arising by operation of law or otherwise, now or
hereafter existing, or held or to be held by the Bank for its own account or
as agent for another or others, whether created directly, indirectly, or
acquired by assignment or otherwise, including but not limited to all
extensions or renewals thereof, and all sums payable under or by virtue
thereof, including without limitation, all amounts of principal and interest,
all expenses (including attorney's fees and cost of collection as specified)
incurred in the collection thereof or the enforcement of rights thereunder or
in enforcing this Guaranty (including without limitation, any liability
arising from failure to comply with state or federal laws, rules and
regulations concerning the control of hazardous wastes or substances at or
with respect to any real estate securing any loan guaranteed hereby), whether
arising in the ordinary course of business or otherwise, and whether held or
to be held by Bank for its own account or as agent for another or others. If
Borrowers are a partnership, corporation or other entity the term "Liability"
or "Liabilities" as used herein shall include all Liabilities to Bank of any
successor entity or entities.
B. "Guarantor" as used herein shall mean Guarantors or any one or more
of them. Anyone executing this Guaranty shall be bound by the terms hereof
without regard to execution by anyone else. This Guaranty is binding upon
Guarantors, their executors, administrators, successors or assigns, and shall
inure to the benefit of Bank, its successors, endorsees or assigns.
"Guarantors" as used in this instrument shall be construed as singular or
plural to correspond with the number of persons executing this instrument as
a Guarantor. The pronouns used in this Agreement are in the masculine gender
but shall be construed as female or neuter as an occasion may require.
C. "Collateral" means the property subject to a security interest, and
includes accounts and chattel paper which have been sold, including but not
limited to all additions and accessions thereto, all replacements or
substitutes therefor, and all immediate and remote proceeds of the sale or
other disposition thereof.
AMENDED AND RESTATED CONTINUING AND UNCONDITIONAL GUARANTY
4. WAIVERS BY GUARANTORS. Each Guarantor waives notice of acceptance of this
Guaranty, notice of any Liability or Obligations to which it may apply, and
waives presentment, demand for payment, protest, notice of dishonor or
nonpayment of any Liabilities, waiver of notice of intent to accelerate,
waiver of notice of acceleration and notice of any suit or the taking of
other action by Bank against any Borrower, any Guarantor, or any other person
and any other notice to any party liable thereon (including such Guarantor)
and any applicable statute of limitations.
Until the indefeasible payment of all Liabilities and Obligations, each
Guarantor also hereby waives any claim, right or remedy which such Guarantor
may now have or hereafter acquire against each Borrower that arises hereunder
and/or from the performance by any Guarantor hereunder including, without
limitation, any claim, remedy or right of subrogation, reimbursement,
exoneration, contribution, indemnification, or participation in any claim,
right or remedy of the Bank against any Borrower or any security which the
Bank now has or hereafter acquires, whether or not such claim, right or
remedy arises in equity, under contract, by statute, under common law or
otherwise.
Each Guarantor hereby agrees to waive the benefits of any provision of law
requiring that the Bank exhaust any right or remedy, or take any action,
against any Borrower, any Guarantor, any other person and/or property
including but not limited to the provisions of the Texas Civil Practice and
Remedies Code ss. 17.001, Texas Rules of Civil Procedure Rule 31 and the
Texas Business and Commerce Code ss. 34.03, as amended, or otherwise.
Bank may at any time and from time to time (whether before or after
revocation or termination of this Guaranty) without notice to any Guarantor
(except as required by law), without incurring responsibility to any
Guarantor, without impairing, releasing, or otherwise affecting the
obligations of any Guarantor, in whole or in part, and without the
endorsement or execution by any Guarantor of any additional consent, waiver
or guaranty: (a) change the manner, place or terms of payment; (b) change or
extend the time of or renew or alter, any Liability or Obligation or
installment thereof, or any security therefor; (c) loan additional monies or
extend additional credit to any Borrower, with or without security, thereby
creating new Liabilities or Obligations the payment or performance of which
shall be guaranteed hereunder, and the Guaranty herein made shall apply to
the Liabilities and Obligations as so changed, extended, surrendered,
realized upon or otherwise altered; (d) sell, exchange, release, surrender,
realize upon or otherwise deal with in any manner and in any order any
property at any time pledged or mortgaged to secure the Liabilities or
Obligations and any offset there against; (e) exercise or refrain from
exercising any rights against any Borrower or others (including any
Guarantor) or act or refrain from acting in any other manner; (f) settle or
compromise any Liability or Obligation or any security therefor and
subordinate the payment of all or any part thereof to the payment of any
Liability or Obligation of any other parties primarily or secondarily liable
on any of the Liabilities or Obligations; (g) release or compromise any
liability of any Guarantor hereunder or any Liability or Obligation of any
other parties primarily or secondarily liable on any of the Liabilities or
Obligations; or (h) apply any sums from any sources to any Liability without
regard to any Liabilities remaining unpaid.
5. CREDIT AGREEMENT. Each Guarantor agrees that certain representations set
forth in the Credit Agreement (defined below) are applicable to it and that
certain covenants set forth in the Credit Agreement are binding upon it.
6. WAIVERS BY BANK. No delay on the part of Bank in exercising any of its
options, powers or rights, or any partial or single exercise thereof, shall
constitute a waiver thereof. No waiver of any of its rights hereunder, and no
modification or amendment of this Guaranty, shall be deemed to be made by
Bank unless the same shall be in writing, duly signed on behalf of Bank; and
each such waiver, if any, shall apply only with respect to the specific
instance involved, and shall in no way impair the rights of Bank or the
obligations of Guarantors to Bank in any other respect at any other time.
7. TERMINATION. This Guaranty shall continue until written notice of
revocation signed by each respective Guarantor or until written notice of the
death of such Guarantor shall actually have been received by Bank,
notwithstanding change in name, location, composition or structure of, or the
dissolution, termination or increase, decrease or change in personnel, owners
or partners of any Borrower, or any one or more of Guarantors, provided,
however, that no notice of revocation or termination hereof shall affect in
any manner rights arising under this Guaranty with respect to Liabilities or
Obligations that shall have been created, contracted, assumed or incurred
prior to receipt of such written notice pursuant to any agreement entered
into by Bank prior to receipt of such notice, and the sole effect of such
notice of revocation or termination hereof shall be to exclude from this
Guaranty, Liabilities or Obligations thereafter arising that are unconnected
with Liabilities or Obligations theretofore arising or transactions entered
into theretofore.
8. PARTIAL INVALIDITY AND/OR ENFORCEABILITY OF GUARANTY. The unenforceability
or invalidity of any provision of this Guaranty shall not affect the
enforceability or validity of any other provision herein and the invalidity
or unenforceability of any provision of any Loan Document as it may apply to
any person or circumstance shall not affect the enforceability or validity of
such provision as it may apply to other persons or circumstances.
In the event Bank is required to relinquish or return the payments, the
Collateral or the proceeds thereof, in whole or in part, which had been
previously applied to or retained for application against any Liability, by
reason of a proceeding arising under the Bankruptcy Code, or for any other
reason, this Guaranty shall automatically continue to be effective
notwithstanding any previous cancellation or release effected by the Bank.
9. OBLIGATIONS OF GUARANTORS. In the event that any Borrower fails to perform
any of the Obligations or pay any of the Liabilities, Guarantors shall upon
demand by Bank, promptly and with due diligence pay all Liabilities and
perform and satisfy for the benefit of Bank all Obligations.
10. FINANCIAL AND OTHER INFORMATION. Each Guarantor has made an independent
investigation of the financial condition and affairs of Borrowers prior to
entering into this Guaranty, and such Guarantor has made and will continue to
make an independent appraisal of the creditworthiness of Borrowers; and in
entering into this Guaranty such Guarantor has not relied upon any
representation of the Bank as to the financial condition, operation or
creditworthiness of Borrowers. Each Guarantor further agrees that the Bank
shall have no duty or responsibility now or hereafter to make any
investigation or appraisal of any Borrower on behalf of such Guarantor or to
provide such Guarantor with any credit or other information which may come to
its attention now or hereafter.
11. NOTICES. All notices required or permitted to be given to Bank herein
shall be sent by registered or certified mail, return receipt requested to
the Bank at the address shown in the preamble to this agreement. Each
Guarantor agrees that all notices required or permitted to be given to such
Guarantor shall be sent by first class mail, postage prepaid United States
mail. The parties agree that the notice shall be considered received by a
Guarantor five (5) days after being placed in the United States mail.
12. EVENTS OF DEFAULT. An "event of default" shall exist if an Event of
Default (as defined in the Amended and Restated Revolving Credit Agreement
(as modified, amended, renewed, extended, and restated from time to time, the
"CREDIT AGREEMENT") dated of even date herewith, executed by Borrowers and
AMENDED AND RESTATED CONTINUING AND UNCONDITIONAL GUARANTY d-601468.2
Bank, and all modifications, amendments, and restatements thereof) shall
occur and be continuing.
13. REMEDIES. Upon the occurrence of any event of default hereunder, Bank
shall have all of the remedies of a creditor and, to the extent applicable,
of a secured party, under all applicable law, and without limiting the
generality of the foregoing, Bank may, at its option and without notice of
demand: (a) declare any Liability accelerated and due and payable at once;
and (b) take possession of any Collateral wherever located, and sell, resell,
assign, transfer and deliver all or any part of said Collateral of any
Borrower or any Guarantor at any public or private sale or otherwise dispose
of any or all of the Collateral in its then condition, for cash or on credit
or for future delivery, and in connection therewith Bank may impose
reasonable conditions upon any such sale. Bank, unless prohibited by law the
provisions of which cannot be waived, may purchase all or any part of said
Collateral to be sold, free from and discharged of all trusts, claims, rights
or redemption and equities of Borrowers or Guarantors whatsoever; each
Guarantor acknowledges and agrees that the sale of any Collateral through any
nationally recognized broker-dealer, investment banker or any other method
common in the securities industry shall be deemed a commercially reasonable
sale under the Uniform Commercial Code or any other equivalent statute or
federal law, and expressly waives notice thereof except as provided herein;
and (c) set-off against any or all liabilities of any Guarantor all money
owed by Bank in any capacity to such Guarantor whether or not due, and also
set-off against all other Liabilities of any Borrower or any Guarantor to
Bank all money owed by Bank in any capacity to any Borrower or any Guarantor,
and if exercised by Bank, Bank shall be deemed to have exercised such right
of set-off and to have made a charge against any such money immediately upon
the occurrence of such default although made or entered on the books
subsequent thereto.
14. ATTORNEY FEES, COST AND EXPENSES. Guarantors shall pay all costs of
collection and reasonable attorneys' fees, including reasonable attorney's
fees in connection with any suit, mediation or arbitration proceeding, out of
court payment agreement, trial, appeal, bankruptcy proceedings or otherwise,
incurred or paid by Bank in enforcing the payment of any Liability or
enforcing or preserving any right or interest of Bank hereunder, including
the collection, preservation, sale or delivery of any Collateral from time to
time pledged to Bank, and after deducting such fees, costs and expenses from
the proceeds of sale or collection, Bank may apply any residue to pay any of
the Liabilities and Guarantors shall continue to be liable for any deficiency
with interest at the rate specified in any instrument evidencing the
Liability or, at the Bank's option, equal to the highest lawful rate, which
shall remain a liability.
15. PRESERVATION OF PROPERTY. Bank shall not be bound to take any steps
necessary to preserve any rights in any of the property of any Guarantor
pledged to Bank to secure any Guarantor's obligations against prior parties
who may be liable in connection therewith, and each Guarantor hereby agrees
to take any such steps. Bank, nevertheless, at any time, may (a) take any
action it deems appropriate for the care or preservation of such property or
of any rights of Guarantors or Bank therein, (b) demand, xxx for, collect or
receive any money or property at any time due, payable or receivable on
account of or in exchange for any property of any Guarantor, (c) compromise
and settle with any person liable on such property, or (d) extend the time of
payment or otherwise change the terms of the Loan Documents as to any party
liable on the Loan Documents, all without notice to, without incurring
responsibility to, and without affecting any of the obligations or
liabilities of any Guarantor.
16. COLLATERAL. Bank shall have a properly perfected security interest in all
of Guarantor's funds on deposit with Bank to secure the balance of any
liabilities and/or obligations that Guarantors may now or in the future owe
the Bank. Bank is granted a contractual right of set-off and will not be
liable for dishonoring checks or withdrawals where the exercise of Bank's
contractual right of set-off or security interest results in insufficient
funds in Guarantors' accounts. As authorized by law, Guarantors grant to Bank
this contractual right of set-off and security interest in all property of
Guarantors now or at anytime hereafter in the possession of Bank, including
but not limited to any joint account, special account, account by the
entireties, tenancy in common, and all dividends and distributions now or
hereafter in the possession or control of Bank.
17. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES HERETO
INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED
ON OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING
ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND PROCEDURE
FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S. D/B/A ENDISPUTE, INC.
("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS
AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING,
TO COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT
APPLIES IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
BORROWERS' DOMICILE AT THE TIME OF THIS AGREEMENT'S EXECUTION AND
ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS
UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE
AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE
COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE
ARBITRATOR SHALL ONLY, UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE
COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60 DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO
(I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE
A WAIVER BY THE BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR
ANY SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK
HERETO (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO)
SET-OFF, OR (B) TO FORECLOSURE AGAINST ANY REAL OR PERSONAL PROPERTY
COLLATERAL, OR (C) TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES
SUCH AS (BUT NOT LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE
APPOINTMENT OF A RECEIVER. THE BANK MAY EXERCISE SUCH SELF HELP RIGHTS,
FORECLOSE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR ANCILLARY
REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING
BROUGHT PURSUANT TO THIS AGREEMENT. AT BANK'S OPTION, FORECLOSURE UNDER A
DEED OF TRUST OR MORTGAGE MAY BE ACCOMPLISHED BY ANY OF THE FOLLOWING: THE
EXERCISE OF A POWER OF SALE UNDER THE DEED OF TRUST OR MORTGAGE, OR BY
JUDICIAL SALE UNDER THE DEED OF
AMENDED AND RESTATED CONTINUING AND UNCONDITIONAL GUARANTY d-601468.2
TRUST OR MORTGAGE, OR BY JUDICIAL FORECLOSURE. NEITHER THIS EXERCISE OF SELF
HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE OF AN ACTION FOR FORECLOSURE
OR PROVISIONAL OR ANCILLARY REMEDIES SHALL CONSTITUTE A WAIVER OF THE RIGHT
OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE
MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH REMEDIES.
18. NOTICE OF FINAL AGREEMENT. THIS WRITTEN CONTINUING AND UNCONDITIONAL
GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
19. AMENDMENT AND RESTATEMENT. This Guaranty is in amendment and restatement
of that certain Continuing and Unconditional Guaranty dated February 27,
1998, executed by Guarantors in favor of Bank.
Dated: February ______, 1999
NATIONSBANK, N.A., a national banking association
By:
XXXXXXX X. XXXXXXXXXX, SENIOR VICE PRESIDENT
Print Name and Title
GUARANTORS:
XXXXX GOLF, INC., a Delaware corporation
By:
Name:
Title:
XXXXX GOLF HOLDING CORP., a Delaware corporation
By:
Name:
Title:
XXXXX GOLF GP CORP., a Delaware corporation
By:
Name:
Title:
XXXXX GOLF MANAGEMENT CORP., a Delaware corporation
By:
Name:
Title:
XXXXX GOLF IP, L.P., a Delaware limited partnership
By: XXXXX GOLF GP CORP., a Delaware corporation,
General Partner
By:
Name:
Title:
AMENDED AND RESTATED CONTINUING AND UNCONDITIONAL GUARANTY d-601468.2
XXXXX GOLF FOREIGN SALES CORPORATION, a
Barbados corporation
By:
Name:
Title:
XXXXX GOLF RAC CORP.,a Delaware corporation
By:
Name:
Title:
State of Texas )
)
County of Dallas )
This instrument was acknowledged before me on February ___, 1999 by
_____________________, ________________________ of XXXXX GOLF, INC., a
Delaware corporation, on behalf of said corporation.
(Seal) Notary Public
in and for the State of Texas
My Commission Expires Print Name of Notary
State of Texas )
)
County of Dallas )
This instrument was acknowledged before me on February ___, 1999 by
_____________________, ________________________ of XXXXX GOLF HOLDING CORP.,
a Delaware corporation, on behalf of said corporation.
(Seal) Notary Public
in and for the State of Texas
My Commission Expires Print Name of Notary
State of Texas )
)
County of Dallas )
This instrument was acknowledged before me on February ___, 1999 by
_____________________, ________________________ of XXXXX GOLF MANAGEMENT
CORP., a Delaware corporation, on behalf of said corporation.
(Seal) Notary Public
in and for the State of Texas
AMENDED AND RESTATED CONTINUING AND UNCONDITIONAL GUARANTY d-601468.2
My Commission Expires Print Name of Notary
State of Texas )
)
County of Dallas )
This instrument was acknowledged before me on February ___, 1999 by
_____________________, ________________________ of XXXXX GOLF GP CORP., a
Delaware corporation, General Partner of XXXXX GOLF IP, L.P., a Delaware
limited partnership, on behalf of said partnership.
(Seal) Notary Public
in and for the State of Texas
My Commission Expires Print Name of Notary
State of Texas )
)
County of Dallas )
This instrument was acknowledged before me on February ___, 1999 by
_____________________, ________________________ of XXXXX GOLF FOREIGN SALES
CORPORATION., a Barbados corporation, on behalf of said corporation.
(Seal) Notary Public
in and for the State of Texas
My Commission Expires Print Name of Notary
State of Texas )
)
County of Dallas )
This instrument was acknowledged before me on February ___, 1999 by
_____________________, ________________________ of XXXXX GOLF RAC CORP., a
Delaware corporation, on behalf of said corporation.
(Seal) Notary Public
in and for the State of Texas
My Commission Expires Print Name of Notary
