SECOND AMENDED AND RESTATED LETTER AGREEMENT
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▇▇-▇▇ ▇▇▇▇▇ Incorporated
c/o II-VI Incorporated
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Re: 300,000,000 Japanese Yen Term Loan
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Gentlemen:
We are pleased to inform you that PNC Bank, National Association (the
"Bank") has approved II-VI Japan Incorporated's (the "Borrower") request
for (i) a restatement of the existing 237,000,000 Japanese Yen rate
protection term loan between the Bank and Borrower's sole shareholder,
II-VI Incorporated ("II-VI") (the "Existing Rate Protection Term Loan"),
as presently governed by the terms of the Amended and Restated Letter
Agreement dated March 26, 1999 between the Bank and II-VI (the "Existing
Letter Agreement") and as evidenced by II-VI's 237,000,000 Rate
Protection Term Note (EuroYen/Cap) to the Bank, dated March 26, 1999
(the "Existing Rate Protection Term Note"). Such restatement shall
include, among other things, causing II-VI Japan Incorporated, a
[corporation existing under the laws of Japan] ("II-VI Japan") to become
the Borrower, an increase in loan amount from 237,000,000 Japanese Yen
to 300,000,000 Japanese Yen and the execution of a guaranty of such
indebtedness by II-VI Incorporated. Upon execution of this letter (the
"Agreement"), the Existing Letter Agreement shall be deemed canceled and
all of the indebtedness outstanding thereunder shall be governed by the
terms and conditions of this Agreement and the Note. All the details
regarding your restated loans are outlined in the following sections of
this Agreement.
1. DEFINED TERMS. Words and terms used herein without definition shall
have the respective meanings assigned thereto on Schedule I attached
hereto.
2. YEN LOAN.
(a) TYPE OF FACILITY. The credit facility covered by this
Agreement shall be a Rate Protection Term Loan (the "Rate Protection
Term Loan") in the amount of 300,000,000 Japanese Yen.
(b) INTEREST RATE. Amounts outstanding under the Rate Protection
Term Loan will bear interest at the rate or rates as provided in the
Rate Protection Term Note executed by the Borrower in the form attached
hereto as Exhibit A (the "Rate Protection Term Note").
(c) REPAYMENT. Principal of, and interest accrued on, the Rate
Protection Term Loan shall be payable on the dates and times as provided
in the Rate Protection Term Note.
(d) REPAYMENT. The obligation of the Borrower to repay the Rate
Protection Term Loan shall be evidenced by the Rate Protection Term
Note.
(e) SECURITY. The obligations of the Borrower under this Agreement
and the Note are secured by the Guaranty and, on a pari passu basis with
the obligations under the Credit Agreement, by the obligations of II-VI
and its subsidiaries under the Guaranty Agreement (as defined in the
Credit Agreement), the Security Agreements (as defined in the Credit
Agreement) and the Pledges Agreement (as defined in the Credit
Agreement) and such security shall remain in full force and effect
notwithstanding the termination of the Credit Agreement.
3. USE OF PROCEEDS. The proceeds of the Rate Protection Term Loan will
be used by the Borrower for purposes of foreign currency balance sheet
hedging within its intercorporate group. It is acknowledged that
notwithstanding the title of this Agreement, the proceeds of the Rate
Protection Term Loan are not required to be used for rate protection
purposes.
4. LOAN DOCUMENTS. This Agreement, the Rate Protection Term Note, the
Guarantee and the other loan documents referenced herein and/or
delivered pursuant hereto are collectively referred to as the "Loan
Documents".
5. GURARANTEE. The Borrower must cause the Guarantor to execute and
deliver to the Bank a guaranty and suretyship agreement (the
"Guarantee"), in substantially the form of Exhibit B attached hereto,
under which the Guarantor will unconditionally guarantee the due and
punctual payment of all indebtedness owed to the Bank by the Borrower.
6. CONDITIONS TO LENDING. The obligation of the Bank to make the Rate
Protection Term Loan is subject to the conditions that:
(a) the Borrower shall (i) provide to the Bank this Agreement, the
Rate Protection Note, and the Guarantee, each duly executed by the
Borrower and the Guarantor, as the case may be; (ii) provide to the Bank
evidence of the due authorization by the Borrower and the Guarantor of
this Agreement, the Rate Protection Note, and the Guarantee; (iii)
provide to the Bank such other instruments as the Bank shall reasonably
require in form and substance satisfactory to the Bank; (iv) cause II-VI
and each of its domestic subsidiaries to execute and acknowledge an
Agreement in the form of Exhibit C attached hereto; and (v) provide to
the Bank an opinion of counsel to the Borrower and the Guarantor
addressing such matters relating to the Guarantor and this transaction
as the Bank may request.
7. AFFIRMATIVE COVENANTS. Unless waived in writing by the Bank or
until payment in full of the Rate Protection Term Loan,
(a) The Borrower shall comply with all affirmative covenants
applicable to a Subsidiary of a Loan Party (as defined in the Credit
Agreement) as set forth in the Credit Agreement.
(b) The Borrower shall maintain books and records in accordance
with GAAP and give representatives of the bank access thereto at all
reasonable times, including permission to examine, copy and make
abstracts from any of such books and records and such other information
as the Bank may from time to time reasonably request, and the Borrower
will make available to the Bank for examination copies of any reports,
statements or returns which the Borrower may make to or file with any
governmental department, bureau or agency, federal or state.
(c) The Borrower will promptly submit to Bank such other
information relating to the Borrower as the Bank may reasonably request.
(d) The Borrower will pay and discharge when due all indebtedness
and all taxes, assessments, charges, levies and other liabilities
imposed upon the Borrower, its income, profits, property or business,
except those which currently are being contested in good faith by
appropriate proceedings and for which the Borrower shall have set aside
adequate reserves or made other adequate provision with respect thereto
acceptable to the Bank in its sole discretion.
(e) The Borrower will do all things necessary to maintain, renew
and keep in full force and effect its organizational existence and all
rights, permits and franchises necessary to enable it to continue its
business; continue in operation in substantially the same manner as at
present; keep its properties in good operating condition and repair; and
make all necessary and proper repairs, renewals, replacements, additions
and improvements thereto.
(f) The Borrower will maintain with financially sound and reputable
insurers, insurance with respect to its property and business against
such casualties and contingencies, of such types and in such amounts as
is customary for established companies engaged in the same or similar
business and similarly situated.
(g) The Borrower will comply with all laws applicable to the
Borrower and to the operation of its business (including any statute,
rule or regulation relating to employment practices and pension benefits
or to environmental, occupational and health standards and controls).
(h) The Borrower shall cause, at all times, the indebtedness
outstanding under this Agreement to rank at least pari passu with all
other indebtedness for borrowed money of the Borrower.
8. NEGATIVE COVENANTS. Unless waived in writing by the Bank or until
payment in full of the Rate Protection Term Loan, the Borrower covenants
and agrees that it will not, without the Bank's prior written consent:
(a) Violate or breach any negative covenants applicable to a
Subsidiary of a Loan Party (as defined in the Credit Agreement) as set
forth in the Credit Agreement.
(b) Make or permit any material change in the nature of its
business as carried on as of the date of this Agreement.
9. REPRESENTATIONS AND WARRANTIES. To induce the Bank to extend the
Rate Protection Term Loan, the Borrower represents and warrants to the
Bank as follows;
(a) The Borrower is duly organized, validly existing and in good
standing under the laws of Japan and has the power and authority to own
and operate its assets and to conduct its business as now or proposed to
be carried on, and is duly qualified, licensed and in good standing to
do business in all jurisdictions where its ownership of property or the
nature of its business requires such qualification or licensing.
(b) The Borrower has the power to make and carry out the terms of
the Loan Documents and has taken all necessary corporate action to
authorize the execution, delivery and performance of the Loan Documents.
(c) The Loan Documents constitute the legally binding obligations
of the Borrower, enforceable against the Borrower in accordance with
their respective terms.
(d) All of the Borrower's Subsidiaries in existence on the date
hereof are listed on Schedule II attached hereto.
(e) The making and performance of the Loan Documents do not and
will not violate in any respect any provisions of (i) any law or
regulation or any order or decree of any governmental authority, agency
or court, or (ii) the organizational documents of the Borrower or of any
of its Subsidiaries, or (iii) any mortgage, contract or other
undertaking to which the Borrower is a party or which is binding upon
the Borrower or any of its Subsidiaries or any of their respective
assets, and do not and will not result in the creation or imposition of
any security interest, lien, charge or other encumbrance on any of their
respective assets pursuant to the provisions of any such mortgage,
contract or other undertaking.
(f) Neither the Borrower nor any of its Subsidiaries is in default
with respect to any material order, writ, injunction or decree (i) of
any court or (ii) of any applicable governmental instrumentality. The
Borrower and each Subsidiary is substantially complying with all
applicable statutes and regulations of each governmental authority
having jurisdiction over its activities, except where failure to comply
would not have a material adverse effect on the Borrower and its
Subsidiaries, taken as a whole.
(g) There are no actions, suits, proceedings or governmental
investigations pending or, to the knowledge of the Borrower, threatened
against the Borrower which could result in a material adverse change in
its business, assets, operations, financial condition or results of
operations and there is no basis known to the Borrower or its officers
or directors for any such action, suit, proceedings or investigation.
(h) The Borrower has filed all returns and reports that are
required to be filed by it in connection with any applicable tax, duty
or charge levied, assessed or imposed upon the Borrower or its property,
including unemployment, social security and similar taxes and all of
such taxes have been either paid or adequate reserve or other provision
has been made therefor.
(i) The Borrower owns or is licensed to use all patents, patent
rights, trademarks, trade names, service marks, copyrights, intellectual
property, technology, know-how and processes necessary for the conduct
of its business as currently conducted that are material to the
condition (financial or otherwise), business or operations of the
Borrower.
(j) No part of the proceeds of the Advances will be used for
"purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time in
effect or for any purpose which violates the provisions of the
Regulations of such Board of Governors.
(k) As of the date hereof and after giving effect to the
transactions contemplated by the Loan Documents, (i) the aggregate value
of the Borrower's assets will exceed its liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities), (ii)
the Borrower will have sufficient cash flow to enable it to pay its
debts as they mature, and (iii) the Borrower will not have unreasonably
small capital for the business in which it is engaged.
(l) None of the Loan Documents contains or will contain any untrue
statement of material fact or omits or will omit to state a material
fact necessary in order to make the statements contained in this
Agreement or the Loan Documents not misleading. There is no fact known
to the Borrower which materially adversely affects or, so far as the
Borrower can now foresee, might materially adversely affect the
business, assets, operations, financial condition or results of
operation of the Borrower and which has not otherwise been fully set
forth in this Agreement or in the Loan Documents.
10. EVENTS OF DEFAULT. The occurrence of any of the following events
(whatever the reason therefor and whether voluntary, involuntary or
effected by operation of law) will be deemed to be an "Event of
Default":
(a) the nonpayment of any principal, interest, reimbursement
obligation or other indebtedness under this Agreement, the Note or any
other Loan Document when due;
(b) the occurrence of any event of default or default and the lapse
of any notice or cure period under any Loan Document, the Credit
Agreement (including any Loan Document thereunder) or any other debt,
liability or obligation to the Bank of any Obligor;
(c) the filing by or against the Borrower of any proceeding in
bankruptcy, receivership, insolvency, reorganization, liquidation,
conservatorship or similar proceeding (and, in the case of any such
proceeding instituted against the Borrower, such proceeding is not
dismissed or stayed within sixty (60) days of the commencement thereof);
(d) any assignment by the Borrower for the benefit of creditors, or
any levy, garnishment, attachment or similar proceeding (in excess of
$100,000 in the aggregate) is instituted against any property of the
Borrower held by or deposited with the Bank (and, in the case of any
levy, garnishment, attachment or similar proceeding instituted against
any such property of the Borrower, such proceeding is not dissolved
within ten (10) days of the commencement thereof;
(e) the commencement of any foreclosure or forfeiture proceeding,
execution or attachment against any collateral (having a fair market
value in excess of $100,000 in the aggregate) securing the obligations
of any Obligor to the Bank, and the failure of such Obligor to discharge
such proceeding within ten (10) days of the commencement thereof;
(f) any Obligor ceases doing business as a going concern;
(g) the revocation or attempted revocation, in whole or in part, of
any guarantee by the Guarantor;
(h) any representation or warranty made by any Obligor to the Bank
in any Loan Document, or any other documents now or in the future
evidencing or securing the obligations of any Obligor to the Bank, is
false, erroneous or misleading in any material respect; or
(i) the failure of any Obligor to observe or perform any covenant
or other agreement with the Bank contained in any Loan Document, the
Credit Agreement or any other documents now or in the future evidencing
or securing the obligations of any Obligor to the Bank,
11. CONSEQUENCES OF AN EVENT OF DEFAULT. Upon the occurrence of an
Event of Default: (a) if an Event of Default specified in clause (c) or
(d) above shall occur, the unpaid principal balance of the Note then
outstanding and all interest accrued thereon together with any
additional amounts payable hereunder and thereunder shall be immediately
due and payable without demand or notice of any kind; and (b) if any
other Event of Default shall occur, the unpaid principal balance of the
Note then outstanding and all interest accrued thereon together with any
additional amounts payable hereunder and thereunder, at the option of
the Bank and without demand or notice of any kind, may be accelerated
and become immediately due and payable. Upon the curing of all existing
Events of Default to the satisfaction of the Bank, the Bank shall return
such cash collateral to the Borrower; (e) at the option of the Bank, the
Note will bear interest at the Default Rate (as set for the in the Note)
from the date of the occurrence of the Event of Default; and (f) the
Bank may exercise from time to time any of the rights and remedies
available to the Bank under the Loan Documents or under applicable law.
12. RIGHT OF SETOFF. In addition to all liens upon and rights of
setoff against the money, securities or other property of the Borrower
given to the Bank by law, the Bank shall have, with respect to the
Borrower's obligations to the Bank under the Loan Documents and to the
extent permitted by law, a contractual possessory security interest in
and a contractual right of setoff against, and the Borrower hereby
assigns, conveys, delivers, pledges and transfers to the Bank all of the
Borrower's right, title and interest in and to all deposits, moneys,
securities and other property of the Borrower now or hereafter in the
possession of or on deposit with, or in transit to, the Bank whether
held in a general or special account or deposit, whether held jointly
with someone else or whether held for safekeeping or otherwise,
excluding, however, all ▇▇▇, ▇▇▇▇▇, and trust accounts. Every such
security interest and right of setoff may be exercised without demand
upon or notice to the Borrower. Every such right of setoff shall be
deemed to have been exercised immediately upon the occurrence of an
Event of Default hereunder without any action of the Bank, although the
Bank may enter such setoff on its books and records at a later time.
13. NOTICES. All notices, demands, requests, consents, approvals and
other communications required or permitted hereunder must be in writing
and will be effective upon receipt if delivered personally to such
party, or if sent by facsimile transmission with confirmation of
delivery, or by nationally recognized overnight courier service, to the
address set forth below or to such other address as any party may give
to the other in writing for such purpose.
To the Bank:
PNC Bank, National Association
One PNC Plaza
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
PNC Bank, National Association
One PNC Plaza
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Managing Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Borrower:
II-VI Japan Incorporated
c/o II-VI Incorporated
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Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Treasurer
With a copy to:
▇▇▇▇▇▇▇▇, German & ▇▇▇▇▇, PC
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
14. EXPENSES. The Borrower shall reimburse the Bank for the Bank's
expenses (including the reasonable fees and expenses of the Bank's
outside and in-house counsel) in connection with the collection of all
of the Borrower's obligations to the Bank, including but not limited to
enforcement actions relating to the Loan Documents.
15. GOVERNING LAW. This Agreement, the Note and the other Loan
Documents shall be governed by the laws of the Commonwealth of
Pennsylvania, excluding its conflict of law rules.
16. COUNTERPARTS. This Agreement may be executed in counterparts, each
of which when executed by the Borrower and the Bank shall be regarded as
an original.
17. ENTIRE AGREEMENT. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement between
the Borrower and the Bank concerning the Loans and supersedes all other
prior agreements and understandings, both written and oral, between the
parties with respect to the Loans.
18. AMENDMENTS AND WAIVERS. No modification, amendment or waiver of
any provision of this Agreement nor consent to any departure by the
Borrower therefrom will in any event be effective unless the same is in
writing and signed by the Bank, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which
given. No notice to or demand on the Borrower in any case will entitle
the Borrower to any other or further notice or demand in the same,
similar or other circumstance.
19. PRESERVATION OF RIGHTS. No delay or omission on the part of the
Bank to exercise any right or power arising hereunder will impair any
such right or power or be considered a waiver of any such right or power
or any acquiescence therein, nor will the action or inaction of the Bank
impair any right or power arising hereunder. The Bank's rights and
remedies hereunder are cumulative and not exclusive of any other rights
or remedies which the Bank may have under other agreements, at law or in
equity.
20. SUCCESSORS AND ASSIGNS. This Agreement will be binding upon and
inure to the benefit of the Borrower and the Bank and their respective
heirs, executors, administrators, successors and assigns; provided,
however, that the Borrower may not assign this Agreement in whole or in
part without the prior written consent of the Bank and the Bank at any
time may assign this Agreement in whole or in part.
21. INDEMNITY. The Borrower agrees to indemnify each of the Bank, its
directors, officers and employees and each legal entity, if any, who
controls the Bank (the "Indemnified Parties") and to hold each
Indemnified Party harmless from and against any and all claims, damages,
losses, liabilities and expenses (including, without limitation, all
reasonable fees of counsel with whom any Indemnified Party may consult
and all expenses of litigation or preparation therefor) which any
Indemnified Party may incur or which may be asserted against any
Indemnified Party in connection with or arising out of the matters
referred to in this Agreement or in the other Loan Documents by any
person, entity or governmental authority (including any person or entity
claiming derivatively on behalf of the Borrower), whether (a) arising
from or incurred in connection with any breach of a representation,
warranty or covenant by the Borrower, or (b) arising out of or resulting
from any suit, action, claim, proceeding or governmental investigation,
pending or threatened, whether based on statute, regulation or order, or
tort, or contract or otherwise, before any court or governmental
authority, which arises out of or relates to this Agreement, any other
Loan Document, or the use of the proceeds of the Loan; provided,
however, that the foregoing indemnity agreement shall not apply to
claims, damages, losses, liabilities and expenses solely attributable to
an Indemnified Party's gross negligence or willful misconduct. The
indemnity agreement contained in this Section shall survive the
termination of this Agreement, payment of any Loan and assignment of any
rights hereunder. The Borrower may participate at its expense in the
defense of any such action or claim.
22. ASSIGNMENTS AND PARTICIPATIONS. At any time, without any notice to
the Borrower, the Bank may sell, assign, transfer, negotiate, grant
participation in, or otherwise dispose of all or any part of the Bank's
interest in the Loans. The Borrower hereby authorizes the Bank to
provide, without any notice to the Borrower, any information concerning
the Borrower, including information pertaining to the Borrower's
financial condition, business operations or general creditworthiness, to
any person or entity which may succeed to or participate in all or any
part of the Bank's interest in the Loans.
23. CONSENT TO JURISDICITON. The Borrower hereby agrees that any
action or proceeding arising out of or relating to this Agreement or the
other Loan Documents may be commenced in, and Borrower irrevocably
consents to the exclusive jurisdiction of, any state or federal court
located for the county or judicial district where the Bank's office
indicated above is located, and consents that all service of process be
sent by nationally recognized overnight courier service directed to the
Borrower at the Borrower's address set forth herein and service so made
will be deemed to be completed on the business day after deposit with
such courier; provided that nothing contained in this Agreement will
prevent the Bank from bringing any action, enforcing any award or
judgment or exercising any rights against the Borrower individually,
against any security or against any property of the Borrower within any
other county, state or other foreign or domestic jurisdiction. The
Borrower acknowledges and agrees that the venue provided above is the
most convenient forum for both the Bank and the Borrower. The Borrower
waives any objection to venue and any objection based on a more
convenient forum in any action instituted under this Agreement or any
other Loan Document.
24. WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK IRREVOCABLY WAIVE
ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENTS OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH LOAN
DOCUMENTS. THE BORROWER AND THE BANK ACKNOWLEDGE THAT THE FOREGOING
WAIVER IS KNOWING AND VOLUNTARY.
If the foregoing accurately reflects the understanding of the parties,
please execute the duplicate original of this Agreement and the other
Loan Documents and return them to me.
Very truly yours,
PNC BANK, NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Agreed to and accepted, with the intent to
be legally bound, this 25th day of September, 2002.
II-VI JAPAN INCORPORATED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
SCHEDULE I TO LETTER AGREEMENT
Defined Terms
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In addition to the words and terms defined elsewhere in the Agreement,
the following words and terms shall have the following respective
meanings:
BUSINESS DAY shall mean any day other than a Saturday or Sunday or a
legal holiday on which commercial banks are authorized or required to be
closed for business in Pittsburgh, Pennsylvania; and (i) if the
applicable Business Day relates to any Advance to which the Euro-Rate
Option applies, such day must also be a day on which dealings are
carried on in the London interbank market, (ii) with respect to advances
or payments of Advances or any other matters relating to Advances
denominated in an Optional Currency, such day also shall be a day on
which dealings in deposits in the relevant Optional Currency are carried
on in the applicable interbank market, and (iii) with respect to
advances or payments of Advances denominated in an Optional Currency,
such day shall also be a day on which all applicable banks into which
Advance proceeds may be deposited are open for business and foreign
exchange markets are open for business in the principal financial center
of the country of such currency.
CLOSING DATE shall mean the date upon which this Agreement has been
executed by the Borrower and the Bank and all conditions precedent
specified in Section 6 of the Agreement have been satisfied or waived
by the Bank.
CREDIT AGREEMENT shall mean the Credit Agreement dated as of August 14,
2000 among II-VI, the Subsidiary Guarantors party thereto, the Lenders
party thereto, and PNC Bank, National Association, as Agent, as
previously amended and as shall be hereafter amended, restated, modified
or supplemented from time to time. In the event that the Credit
Agreement is terminated or the Bank is no longer a lender under the
Credit Agreement, the term Credit Agreement shall mean the Credit
Agreement as it exists immediately prior to (i) such termination or (ii)
the date on which the Bank is no longer a Lender under the Credit
Agreement.
DEFAULT shall mean any event or condition which with notice or passage
of time or both would constitute an Event of Default.
EVENT OF DEFAULT shall have the meaning assigned to such term in Section
10 of the Agreement.
GUARANTOR shall mean II-VI Incorporated, a Pennsylvania corporation.
GUARANTEE shall have the meaning assigned to such term in Section 5 of
the Agreement.
LOANS shall mean the Rate Protection Term Loan.
LOAN DOCUMENTS shall have the meaning assigned to such term in Section 4
of the Agreement.
MATERIAL ADVERSE CHANGE shall mean any set of circumstances or events
which (a) has or could reasonably be expected to have any material
adverse effect upon the validity or enforceability of the Agreement or
any of the other Loan Documents, (b) is or could reasonably be expected
to be material and adverse to the business, properties, assets,
financial condition or results of operations of the Borrower and its
Subsidiaries, taken as a whole, (e) impairs materially or could
reasonably be expected to impair materially the ability of the Borrower
and its Subsidiaries taken as a whole to duly and punctually pay their
indebtedness, or (d) impairs materially or could reasonably be expected
to impair materially the ability of the Bank to enforce its legal
remedies pursuant to the Agreement or any other Loan Document.
NOTE shall mean the Rate Protection Term Note.
OBLIGOR means the Borrower and the Guarantor.
PERSON shall mean any individual, company, partnership, limited
liability company, joint venture, corporation, association, business
trust, unincorporated organization, or any other entity.
SUBSIDIARY shall mean, at any time, any Person of which 50% or more (by
number of shares or number of votes) of the outstanding capital stock or
shares of beneficial interest normally entitled to vote for the election
of one or more directors (regardless of any contingency which does or
may suspend or dilute the voting rights) is at such time owned directly
or indirectly through one or more Subsidiaries by Borrower (including,
without limitation, the entities listed on Schedule II attached hereto),
or (ii) any Person which is Controlled or capable of being Controlled by
Borrower or one or more of Borrower's Subsidiaries.
SCHEDULE II
Subsidiaries
------------
[None]
