EXHIBIT 10.39
CREDIT AGREEMENT dated as of November 12, 1997, between Xxxxxx of New
Jersey Realty Corp., a New Jersey corporation, as borrower (the "Borrower"), and
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Fleet Bank, National Association, a national banking association (the "Lender").
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W I T N E S S E T H :
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WHEREAS, the Borrower has requested that the Lender extend credit to
the Borrower in the form of two term loans in the amount of $6,400,000 and
$350,000; and
WHEREAS, the Lender has agreed to make such extension of credit
provided that the Borrower grant to the Lender, among other things, a first
priority mortgage lien on the property known as 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx on the terms and conditions set forth therein:
ACCORDINGLY, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms shall have
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the following meanings:
"Affiliate": as to any Person, (a) any other Person which, directly
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or indirectly, is in control of, is controlled by, or is under common
control with, such Person, including, without limitation, any joint venture
of such Person, or (b) any Person who is a director, officer, shareholder
or partner (i) of such Person, (ii) of any Subsidiary of such Person or
(iii) of any Person described in the preceding clause (a). For purposes of
this definition, "control" of a Person means the power, directly or
indirectly, either to (i) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (ii)
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agreement": this Credit Agreement, as the same may be amended,
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supplemented or otherwise modified from time to time.
"Amortization Expense": of any Person for any period, any amount
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deducted in the determination of Consolidated Net Income of a Person for
such period and which would be included in amortization expense, determined
on a consolidated basis in accordance with GAAP.
"Base Rate": the rate of interest per annum publicly announced by the
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Lender from time to time as its reference rate in making loans to borrowers
at its principal offices. The Base Rate is not intended to reflect the
rate of interest
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charged to any particular class of borrowers. The applicable rate of
interest charged will change automatically and immediately as of the date
the Lender changes its Base Rate, without notice.
"Borrower": as defined in the Preamble.
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"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in New Jersey are authorized or required by law to
close.
"Capital Stock": any and all shares, interests, participation or
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other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants or options to purchase any of the
foregoing.
"Capital Expenditure": for any Person for any period, any expenditure
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or commitment to make any expenditure in respect of the purchase or other
acquisition of fixed or capital assets (excluding any such asset acquired
in connection with normal replacement and maintenance programs properly
charged to current operations) during such period as calculated on a
consolidated basis.
"Cash Equivalents": as defined in subsection 6.8(b).
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"Closing Date": the date on which all the conditions set forth in
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Section 4 shall first have been satisfied.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Commonly Controlled Entity": an entity, whether or not incorporated,
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which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414 of the Code.
"Consolidated Fixed Charges": of any Person for any period, the sum of
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(a) Consolidated Interest Expense of such Person for such period; (b)
required amortization of Indebtedness of any Person, determined on a
consolidated basis in accordance with GAAP, for such period, and (c) any
discount or premium relating to such Indebtedness of such Person for any
period involved, whether expensed or capitalized.
"Consolidated Fixed Charge Coverage Ratio": of any Person for any
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period the ratio of (i) the sum of Consolidated Net Income for such Person
for such period plus income taxes deducted in determining such Net Income
plus Consolidated Interest Expense, plus Depreciation Expense, plus
Amortization Expense minus Capital Expenditures for such period to (ii)
Consolidated Fixed
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Charges of such Person for such period.
"Consolidated Interest Expense": of any Person for any period, the
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amount of interest expense, both expensed and capitalized, of such Person,
determined on a consolidated basis in accordance with GAAP, for such period
on the aggregate principal amount of the Indebtedness of such Person for
such period, determined on a consolidated basis in accordance with GAAP.
"Consolidated Net Income": of any Person for any period, net income of
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such Person determined on a consolidated basis in accordance with GAAP for
such period.
"Contractual Obligation": as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound including without limitation any Indebtedness.
"Default": any of the events specified in Section 8, hereof, whether
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or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Depreciation Expense": of any Person for any period, any amount
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deducted in the determination of the Consolidated Net Income of such Person
for such period which would be included in depreciation expense, determined
in accordance with GAAP.
"Dollars" and "$": dollars in lawful currency of the United States of
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America.
"Environmental Laws": any and all foreign, federal, state, local or
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municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability
or standards of conduct concerning protection of human health or the
environment, as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"Eurocurrency Reserve Requirement": is the percentage amount
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(expressed as a decimal) of reserves that applicable United States laws
would require the Lender to maintain with respect to liabilities incurred
on the London Interbank Market including, without limitation, reserves
required under Regulation D of the Board of Governors of the Federal
Reserve System for euro-currency liabilities (as defined in such regulation
and deemed, for purposes of this Agreement, to include the Lender's
liabilities incurred on the London Interbank Market) without
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benefit of or credit for pro-ration, exception, or offsets otherwise
available from time to time under such regulation.
"Eurodollar Base Rate": is for each Interest Period the interest rate
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(expressed as a decimal) for deposits in Dollars approximately equal to the
then principal amount of the Term Loan and for a one month period, which
rate appears on the Telerate Page 3750 as of 11:00 a.m., London time, on
the date that is two Business Days prior to the first Business Day of such
Interest Period (If such rate does not appear on the Telerate Page 3750,
the rate utilized shall be the rate which appears, or if more than one such
rate appears, the average of the rates which appear on the Reuters Screen
LIBO Page as of 11:00 a.m., London time, on the day that is two Business
Days prior to such date).
"Eurodollar Rate": with respect to each day during each Interest
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Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the
nearest 1/100th of 1%):
Eurodollar Base Rate
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1.00 Eurocurrency Reserve Requirements
Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8, provided
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that any requirement for the giving of notice, the lapse of time, or both,
or any other condition, has been satisfied.
"Financing Lease": any lease of property, real or personal, the
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obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"FNB": Fleet National Bank, a national banking association.
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"Foreign Exchange Contract": contracts under which any Person agrees
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to purchase or sell on a particular date one type of currency for another
type of currency.
"GAAP": generally accepted accounting principles in the United States
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of America in effect from time to time.
"GECC Agreement": the credit agreement between Xxxxxx International,
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Inc., Xxxxxx Service Group, Inc. and General Electric Capital Corporation
among others dated as of May 31, 1994 as amended from time to time.
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"Governmental Authority": any nation or government, any state or other
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political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee Obligation": as to any Person, any obligation of such
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Person guaranteeing or in effect guaranteeing any Indebtedness, leases,
dividends or other obligations of any other third Person in any manner,
whether directly or indirectly or otherwise to assure or hold harmless the
owner of any primary obligation against loss in respect thereof.
"Guarantee Liabilities": as defined in Section 7.1.
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"Guarantor" or "Guarantors": Xxxxxx International, Inc., a Maryland
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corporation, and Xxxxxx Service Group, Inc., a New Jersey corporation.
"Guaranty": the agreement of guaranty entered into by the Guarantors
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in connection with this Agreement.
"Indebtedness": of any Person at any date, (a) all indebtedness of
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such Person for borrowed money or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business) or which is evidenced by a note, bond,
debenture or similar instrument, (b) all obligations of such Person under
Financing Leases, (c) all obligations of such Person in respect of letters
of credit or acceptances issued or created for or for the account of such
Person, (d) all obligations of such Person under Foreign Exchange Contracts
or interest rate swap agreements, and (e) all liabilities secured by any
Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof.
"Interest Period": each period beginning with the period from the
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Closing Date to the date before the first Payment Date and each period
thereafter from a Payment Date to the next Payment Date.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
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arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any Financing Lease having
substantially the same economic effect as any of the foregoing, and the
filing of any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction in respect of any of the foregoing).
"Loan Documents": the documents in subsection 4.2(a) whose delivery
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is a condition to the obligation of the Lender to make the Term Loans and
all other documents executed and delivered in connection herewith or
therewith, including any amendments, supplements or other modifications to
any of the foregoing.
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"Master Agreement": that certain Master ISDA Agreement dated September
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__, 1997 entered into between the Borrower and FNB.
"Material Adverse Effect": a material adverse effect on (a) the
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business, prospects, operations, property or financial condition of the
Borrower, (b) the ability of the Borrower to perform its obligations under
the Loan Documents, or (c) the validity or enforceability of the Loan
Documents or the rights or remedies of the Lender hereunder or thereunder.
"Material Subsidiary": any Subsidiary of Xxxxxx Service Group, Inc.
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which generates 25% or more of the consolidated revenues of Xxxxxx Service
Group, Inc. or holds assets with 25% or more of the book value of all the
assets of Xxxxxx Service Group, Inc. and its Subsidiaries, or any
Subsidiary of Xxxxxx International, Inc. which generates 25% or more of the
consolidated revenues of Xxxxxx International, Inc. or holds assets with
25% or more of the book value of all the assets of Xxxxxx International,
Inc. and its Subsidiaries.
"Materials of Environmental Concern": any gasoline or petroleum
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(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde insulation.
"Mortgaged Property": as defined in Section 4.2(b).
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"Multiemployer Plan": a Plan which is a multiemployer plan as defined
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in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 2.12.
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"Note": Term Loan A Note and Term Loan B Note.
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"Participants": as defined in subsection 8.7(b).
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"Payment Date": A Term Loan A Payment Date or a Term Loan B Payment
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Date, as applicable.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
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to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business trust,
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joint stock company, limited liability company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan which is
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covered
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by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Purchasing Lender": as defined in subsection 8.7(c).
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"Regulation U": Regulation U of the Board of Governors of the Federal
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Reserve System as now and form time to time hereafter in effect.
"Reorganization": with respect to any Multiemployer Plan, the
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condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Requirement of Law": as to any Person, the Certificate of
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Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to
which such Person or any of its material property is subject.
"Responsible Officer": the chief executive officer, the president or
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the chief financial officer of the Borrower.
"Single Employer Plan": any Plan which is covered by Title IV of
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ERISA, but which is not a Multiemployer Plan.
"Subsidiary": as to any Person, a corporation, partnership or other
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entity of which more than 50% of the shares of stock, or other ownership
interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity, are at the time
owned, directly or indirectly, through one or more intermediaries, or both,
by such Person.
"Term Loans": Term Loan A and Term Loan B, collectively.
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"Term Loan A": the loan which the Lender has committed to make
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pursuant to Section 2.1 of this agreement.
"Term Loan A Maturity Date": as defined in subsection 2.1(b).
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"Term Loan A Note": as defined in subsection 2.1(c).
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"Term Loan A Payment Date": as defined in subsection 2.1(b).
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"Term Loan B": the loan which the Lender has committed to make
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pursuant to Section 2.2 of this agreement.
"Term Loan B Maturity Date": as defined in subsection 2.2(b).
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"Term Loan B Note": as defined in subsection 2.2(c).
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"Term Loan B Payment Date": as defined in subsection 2.2(b).
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"UCC": the Uniform Commercial Code as from time to time in effect in
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the State of New Jersey.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
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all terms defined in this Agreement shall have the defined meanings when used in
the Note or any certificate or other document made or delivered pursuant hereto.
(b) As used herein and in the Note, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower not defined in subsection 1.1 and accounting terms partly defined in
subsection 1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Subsection,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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SECTION 2. THE TERM LOANS
2.1 Term Loan A. (a) Subject to the terms and conditions hereof, the Lender
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hereby agrees to make a term loan to the Borrower in an amount of $6,400,000
("Term Loan A").
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(b) Term Loan A will be repaid in eighty three consecutive monthly
principal payments in the amounts noted next to the Payment Dates on Exhibit C
(the date of each such payment being a "Term Loan A Payment Date") and a final
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payment on December 1, 2004 of all amounts due under this Agreement which remain
unpaid on such date (the "Term Loan Maturity Date").
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(c) Term Loan A shall be evidenced by a note substantially in the form of
Exhibit A hereto (the "Term Loan A Note").
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2.2 Term Loan B. (a) Subject to the terms and conditions hereof, the Lender
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hereby agrees to make a term loan to the Borrower in an amount of $350,000
("Term Loan B").
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(b) Term Loan B will be repaid in forty seven consecutive monthly
principal payments in the amount of $7,291.67 on the first Business Day of each
month (the date of each such payment being a "Term Loan B Payment Date") and a
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final payment on November 1, 2001 of all amounts due under this Agreement which
remain unpaid on such date (the "Term Loan B Maturity Date").
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(c) Term Loan B shall be evidenced by a note substantially in the form of
Exhibit B hereto (the "Term Loan B Note").
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2.3 Swap Funding Advances. In the event that Borrower fails to pay
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any amount that is due and owing to FNB under and pursuant to the Master
Agreement (after giving effect to any applicable grace period), then upon demand
by FNB, in its sole discretion, Lender shall pay such amount directly to FNB for
the account of the Borrower and the Borrower hereby authorizes and consents to
such payment by the Lender. The Borrower agrees that (a) FNB shall have no
obligation to demand Lender to advance such funds on behalf of the Borrower, (b)
the making of such a demand by FNB will not create any obligation to make such a
demand in the future and (c) at all times, FNB may chose not to make such demand
and choose, instead, to exercise its rights under the Master Agreement. The
Borrower shall reimburse Lender for any amount Lender may pay on account of any
amount that is due and owing by Borrower to FNB. Such amounts shall be due upon
demand and shall bear interest at a rate per annum equal to the rate payable
under this Agreement for amounts outstanding under Term Loan B from, and
including, the date of payment by Lender to, but excluding, the date Borrower
reimburses Lender amount. FNB is an intended third-party beneficiary of
Lender's obligations under this section.
2.4 Optional Prepayments. With respect to the Term Loans, the
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Borrower may upon at least three Business Days' irrevocable notice to the
Lender, on
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any Payment Date prepay the amounts then due to be paid under such Term Loan,
without premium or penalty. Any prepayments with respect to any Term Loan shall
be in an aggregate principal amount of $100,000 or a whole multiple thereof and
shall be applied towards satisfaction of the obligation to make payments in
inverse order of maturity. Any amounts repaid or prepaid under the Term Loans
may not be reborrowed.
2.5 Fees. (a) The Borrower agrees to pay a commitment fee equal to $33,750,
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$16,875 of which was paid upon the acceptance of the commitment letter and the
rest of which is payable on the Closing Date.
(b) In the event that the Borrower makes a prepayment of any principal
amounts outstanding on a date other than a Payment Date, whether that payment is
made voluntarily or by reason of an acceleration of the payment date of said
amount following the occurrence of an Event of Default, the Borrower shall pay
to the Lender a Make Whole Fee. A certificate as to the amount of the Make
Whole Fee submitted by the Lender to the Borrower setting forth in reasonable
detail the basis of computation of such amounts shall be conclusive and binding,
in the absence of manifest error, as to the amount due. The "Make Whole Fee"
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means, for any prepayment prior to a Payment Date, an amount (not less than
zero) equal to a fraction, the numerator of which is the product of (i) the
amount of said prepayment so prepaid, multiplied by (ii) the Make Whole Rate,
multiplied by (iii) the Remaining Term, and the denominator of which is 360, the
entire amount of which is discounted to present value using an interest rate set
within the reasonable discretion of the Lender. The "Make Whole Rate" means for
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any such prepayment (or portion thereof) the per annum rate of interest equal to
the difference between (i) interest rate which would have been charged on the
amounts outstanding, and (ii) the yield on United States Treasury Obligations as
determined by the Lender as of the date of the prepayment for such obligations
having a maturity approximately equal to the Remaining Term. "Remaining Term"
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means the number of days until the Payment Date.
2.6 Interest Rates and Payment Dates. The Term Loans shall bear interest at a
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rate per annum equal to the Eurodollar Rate as determined as of the Closing Date
and on each Payment Date thereafter plus 2.25%. Interest on the Term Loans
shall be payable in arrears on each Payment Date. If an Event of Default shall
occur and be continuing all amounts due under the Loan Documents shall bear
interest at a rate per annum which is, in the case of overdue principal or
interest, the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 3.0% from the date of such non-
payment until such amount is paid in full (as well after as before judgment).
Interest accruing pursuant to this paragraph shall be payable from time to time
on demand.
2.7 Computation of Interest and Fees. (a) Interest on the Term Loans shall be
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calculated on the basis of a 360 day year for the actual days elapsed. The
Lender shall as soon as practicable notify the Borrower of each determination of
a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate or the Eurocurrency Reserve Requirement shall become
effective as of the opening of
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business on the day on which such change in the Base Rate or the Eurocurrency
Reserve Requirement becomes effective. The Lender shall as soon as practicable
notify the Borrower of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the Lender pursuant to
any provision of this Agreement shall be conclusive and binding on the Borrower
in the absence of manifest error.
2.8 Inability to Determine Interest Rate. If prior to the first day of any
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Interest Period the Lender shall have determined (which determination shall be
conclusive and binding upon the Borrower) that, by reason of circumstances
affecting the interbank eurodollar market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for the Interest Period the Lender
shall give telecopy or telephonic notice thereof to the Borrower as soon as
practicable thereafter. If such notice is given all amounts due under the Term
Loans shall bear interest at the Lender's floating Base Rate.
2.9 Illegality. Notwithstanding any other provisions herein, if any
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Requirement of Law or any change therein or in the interpretation or application
thereof shall make it unlawful for the Lender to make or maintain Eurodollar
loans all amounts due under the Term Loans shall bear interest at the Lender's
floating Base Rate.
2.10 Indemnity. The Borrower agrees to indemnify the Lender and hold the
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Lender harmless from any loss or expense which the Lender may sustain or incur
as a consequence of (a) default by the Borrower in payment when due of the
principal amount of or interest, (b) default by the Borrower in making any
prepayment after the Borrower has given a notice in accordance with provisions
of this Agreement or (c) the making of a prepayment on a day which is not the
last day of an Interest Period with respect thereto, including, without
limitation, in each case, any such loss or expense arising from the reemployment
of funds obtained by it to maintain the Term Loans or from fees payable to
terminate the deposits from which such funds were obtained. This covenant shall
survive termination of this Agreement, payment of the outstanding Note and all
other amounts payable hereunder.
2.11 Requirements of Law. (a) If the adoption of or any change in any
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Requirement of Law or in the interpretation or application thereof or compliance
by the Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject the Lender to any tax of any kind whatsoever with
respect to any Loan Document or any Eurodollar loan made by it, or change
the basis of taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by subsection 2.12 and changes in the rate
of tax on the overall net income of the Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
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deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on the Lender any other condition;
and the result of any of the foregoing is to increase the cost to the Lender, by
an amount which the Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay the Lender, upon its demand, any additional amounts necessary to
compensate the Lender for such increased cost or reduced amount receivable. If
the Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Borrower, of the event by reason of
which it has become so entitled. A certificate as to any additional amounts
payable pursuant to this subsection submitted by the Lender to the Borrower
shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Note and all
other amounts payable hereunder.
(b) If the Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by the Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof does or shall have the effect of
reducing the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which the Lender
or such corporation could have achieved but for such change or compliance
(taking into consideration the Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by the Lender to be material,
then from time to time, after submission by the Lender to the Borrower of a
written request therefore, the Borrower shall pay to the Lender such additional
amount or amounts as will compensate the Lender for such reduction.
2.12 Taxes. All payments made by the Borrower under any Loan Document shall be
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made free and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter imposed, levied,
collected, withheld or assessed by any Governmental Authority, excluding net
income taxes and franchise taxes (imposed in lieu of net income taxes) imposed
on the Lender as a result of a present or former connection between the Lender
and the jurisdiction of the Governmental Authority imposing such tax or any
political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, any Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges,
fees deductions or withholdings ("Non-Excluded Taxes") are
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required to be withheld from any amounts payable to the Lender hereunder or
under the Note, the amounts so payable to the Lender shall be increased to the
extent necessary to yield to the Lender (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in any Loan Document. Whenever any Non-Excluded Taxes are
payable by the Borrower, as promptly as possible thereafter the Borrower shall
send to the Lender a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any Non-
Excluded Taxes when due to the appropriate taxing authority or fails to remit to
the Lender the required receipts or other required documentary evidence, the
Borrower shall indemnify the Lender for any incremental taxes, interest or
penalties that may become payable by the Lender as a result of any such failure.
The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Note and all other amounts payable
hereunder.[END OF SECTION]
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SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Lender to enter into this Agreement and to make the Term
Loans, the Borrower hereby represents and warrants as follows:
3.1 Financial Condition. The audited consolidated balance sheets of the Xxxxxx
-------------------
International, Inc. and its Subsidiaries as of December 31, 1996 and the related
audited consolidated statements of operations, stockholders' equity and cash
flows for the fiscal year ended on such date, reported on by Deloitte & Touche,
LLP, copies of which have heretofore been furnished to the Lender, are complete
and correct and present fairly the consolidated financial condition and results
of operations of Xxxxxx International, Inc. and its Subsidiaries as of such
dates. All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved. Neither Xxxxxx International Inc. nor its
Subsidiaries has any contingent liability or liability for taxes, or any long-
term lease or unusual forward or long-term commitment, including, without
limitation, any interest rate or foreign currency swap or exchange transaction,
which is not reflected in the foregoing statements or in the notes thereto.
During the period from December 31, 1996 to and including the date hereof there
has been no sale, transfer or other disposition by Xxxxxx International, Inc. or
its Subsidiaries of any material part of its business or property and no
purchase or other acquisition of any business or property (including any capital
stock of any other Person) material in relation to the consolidated financial
condition of Xxxxxx International, Inc. and its Subsidiaries on December 31,
1996.
3.2 No Change. Since December 31, 1996 (a) there has been no development or
---------
event which has had or could reasonably be expected to have a Material Adverse
Effect, and (b) no dividends or other distributions have been declared, paid or
made upon the Capital Stock of the Borrower nor has any of the Capital Stock of
the Borrower been redeemed, retired, purchased or otherwise acquired for value
by the Borrower.
3.3 Corporate Existence; Compliance with Law. The Borrower (a) is duly
----------------------------------------
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated, (b) has the corporate power and
authority to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except to the extent that the
failure to be so qualified could not, in the aggregate, have a Material Adverse
Effect, and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, individually or in the
aggregate, have a Material Adverse Effect.
3.4 Corporate Power; Authorization; Enforceable Obligations. The Borrower has
-------------------------------------------------------
the corporate power and authority to make, deliver and perform its obligations
under each of
14
the Loan Documents to which it is a party, and to borrow thereunder and has
taken all necessary corporate action to authorize the borrowings on the terms
and conditions of the Loan Documents and to authorize the execution, delivery
and performance of the Loan Documents. No consent or authorization of, filing
with or other act by or in respect of, any Governmental Authority or any other
Person is or will be required in connection with the borrowings hereunder or
with the execution, delivery, performance, validity or enforceability of the
Loan Documents. This Agreement constitutes, and each Loan Document when executed
and delivered, will constitute, legal, valid and binding obligations of the
Borrower enforceable against the Borrower in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of any Loan
------------
Document, the borrowings thereunder and the use of the proceeds thereof will not
violate any Requirement of Law or Contractual Obligation of the Borrower and
will not result in, or require, the creation or imposition of any Lien on any of
its properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation.
3.6 No Material Litigation. Except as disclosed in Schedule 3.6, no
----------------------
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or against any of its properties or
revenues (a) with respect to the Loan Documents or any of the transactions
contemplated thereby, or (b) which could reasonably be expected to have a
Material Adverse Effect.
3.7 No Default. The Borrower is not in default under or with respect to any of
----------
its Contractual Obligations in any respect which could reasonably be expected to
have a Material Adverse Effect. No Default or Event of Default has occurred and
is continuing.
3.8 No Burdensome Restrictions. No Requirement of Law or Contractual
--------------------------
Obligation of the Borrower has a Material Adverse Effect.
3.9 Taxes. The Borrower has filed or caused to be filed all tax returns which
-----
are required to be filed and has paid all taxes shown to be due and payable on
said returns or on any assessments made against it or any of its property and
all other taxes, fees or other charges imposed on it or any of its property by
any Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower; no tax Lien has been filed, and, to the knowledge of the
Borrower, no claim is being asserted, with respect to any such tax, fee or other
charge.
3.10 Subsidiaries. The Borrower has no Subsidiaries
------------
15
3.11 Federal Regulations; Investment Company Act; Other Regulations. The
--------------------------------------------------------------
Borrower is not subject to regulation under any Federal or State statute or
regulation which limits its ability to incur Indebtedness. The Borrower is not
an "investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No part of
the proceeds of the Term Loans 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 hereafter in effect or for any purpose which violates the
provisions of the Regulations of such Board of Governors. If requested by the
Lender, the Borrower will furnish to the Lender a statement to the foregoing
effect in conformity with the requirements of FR Form U-1 referred to in said
Regulation U.
3.12 ERISA. Except as set forth in Schedule 3.12:
-----
(a) Each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code and the Borrower has filed all
reports required to be filed under ERISA and the Code with respect to each
such Plan. The Borrower have satisfied all material requirements imposed
by ERISA and the Code with respect to the funding of all Plans.
(b) Neither a reportable event (as defined in Section 4043 of ERISA)
which requires notification to the PBGC nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302
of ERISA) has occurred or is occurring with respect to any Single Employer
Plan established or maintained, or to which contributions have been made by
the Borrower or any Commonly Controlled Entity which would have a Material
Adverse Effect.
(c) No events or conditions have occurred and are continuing which
would permit any Plan to be terminated under circumstances which would
cause the Lien provided under Section 4068 of ERISA to attach to the
Mortgaged Property or any other assets of the Borrower or any Commonly
Controlled Entity. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such Plans),
did not, as of the last annual valuation date prior to the date on which
this representation is made or deemed made, exceed the value of the assets
of such Plan allocable to such accrued benefits.
(d) The Borrower has not had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the Borrower or
any such Commonly Controlled Entity were to withdraw partially or
completely from any Multiemployer Plans as of the valuation date most
closely preceding the date on which this representation is made or deemed
made. No such Multiemployer Plan is in Reorganization or Insolvent.
16
3.13 Purpose of Term Loans. The proceeds of the Term Loans shall be used by
---------------------
the Borrower for repaying existing debt and closing expenses connected with the
Term Loans.
3.14 Environmental Matters. Except as set forth in Schedule 3.14:
---------------------
(a) The properties of Borrower have not previously contained, any
Materials of Environmental Concern in amounts or concentrations which (i)
constitute or constituted a violation of, nor (ii) could reasonably be
expected to give rise to liability under, Environmental Laws.
(b) The properties of the Borrower and all operations at such
properties are in compliance, and have in the last 5 years been in
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties, or violation of any
Environmental Law with respect to such properties which could interfere
with the continued operation of such properties or impair the fair saleable
value thereof.
(c) The Borrower has not received any notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to
any of their respective properties or businesses, nor does the Borrower
have knowledge or reason to believe that any such notice will be received
or is being threatened.
(d) Materials of Environmental Concern have not been transported or
disposed of from any property of the Borrower in violation of, or in a
manner or to a location which could reasonably give rise to liability
under, Environmental Laws, nor have any Materials of Environmental Concern
been generated, treated, stored or disposed of at, on or under any of such
properties in violation of, or in a manner that could reasonably give rise
to liability under, any applicable Environmental Laws.
(e) No judicial proceedings or governmental or administrative action
is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which any of the Borrower is or will be named as a
party with respect to any of its properties nor are there any consent
decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under
any Environmental Law with respect to such properties.
(f) There has been no release or threat of release of Materials of
Environmental Concern at or from any of the properties of the Borrower, or
arising from or related to their operations in connection with such
properties, in violation of or in amounts or in a manner that could
reasonably give rise to liability under Environmental Laws.
17
3.15 Insurance. Borrower maintains insurance with financially sound and
---------
reputable insurance companies on all of its properties in such amounts and
against such risks (but, including in any event, product and environmental
liability coverage) as are usually insured against by companies engaged in the
same or a similar business. ERROR! REFERENCE SOURCE NOT FOUND.
18
SECTION 4. CONDITIONS
4.1 Closing. Closing of the Term Loans will occur at the offices of
-------
XxXxxxxx & English located in the City of Newark, New Jersey at 10:00 a.m. on
November 12, 1997 or such other location as agreed to by the parties.
4.2 Conditions to Effectiveness of this Agreement. The obligation of
---------------------------------------------
the Lender to make the Term Loans is subject to the satisfaction on or prior to
the Closing Date, of the following conditions precedent:
(a) Loan Documents. The Lender shall have received the following
--------------
documents duly executed by the Borrower and any other Person that may be a
party to such document: (i) this Agreement, (ii) the Term Note, (iii) the
Guaranty, (iv) a mortgage on Mortgaged Property, (v) an assignment of
leases effecting the Mortgaged Property, (vi) a UCC financing statement
covering items of personal property used in connection with the Mortgaged
Property, (vii) the Master Agreement, and (viii) subordination, non-
disturbance and attornment agreement for each tenant of the Mortgaged
Property which is not a Guarantor.
(b) Collateral. The Lender shall have received: (i) a first priority
----------
perfected mortgage lien on the real property known as 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx (the "Mortgaged Property"), (ii) a first priority
perfected security interest in fixtures, furniture, equipment, machinery,
books and records, and other personal property located at or used in
connection with the Mortgaged Property, and (iii) an assignment of all
leases, sub-leases and associated rents for the Mortgaged Property.
(c) Corporate Proceedings of the Borrower and Guarantors. The Lender
----------------------------------------------------
shall have received a copy of the resolutions, in form and substance
satisfactory to the Lender, of the Boards of Directors of the Borrower and
each of the Guarantors authorizing the execution of the Loan Documents
certified by the Secretary of the Borrower and/or the Guarantors as of the
Closing Date, which certificate shall state that the resolutions thereby
certified have not been amended, modified, revoked or rescinded and shall
be in form and substance satisfactory to the Lender.
(d) Incumbency Certificate. The Lender shall have received a
----------------------
certificate of the Secretary of the Borrower and each of the Guarantors
dated the Closing Date, as to the incumbency and signatures of the officers
thereof executing the Loan Documents.
(e) Corporate Documents. The Lender shall have received, (i) true
-------------------
and complete copies of the certificate of incorporation and by-laws of the
Borrower and each Guarantor, certified as of the Closing Date as complete
and correct copies thereof, and (ii) a good standing certificate for the
Borrower and each Guarantor from its respective jurisdiction of
organization.
19
(f) No Violation. The consummation of the transactions contemplated
------------
hereby shall not contravene, violate or conflict in any material respect
with, nor involve the Lender in any violation of, any Requirement of Law.
(g) Filings, Registrations and Recordings. Any documents (including,
-------------------------------------
without limitation, financing statements and filings under the Assignment
of Claims Act of 1940) required to be filed, and any other actions required
to be taken, under or in connection with any of the Loan Documents in order
to create or confirm, in favor of the Lender, a perfected security interest
in the collateral thereunder shall have been properly filed or taken, as
the case may be, and the Lender shall have received evidence satisfactory
to it of each such filing, registration, recordation or other action and
satisfactory evidence of the payment of any necessary fee, tax or expense
relating thereto.
(h) Fees. The Lender shall have received the fees to be received on
----
the Closing Date referred to in this Agreement.
(i) Legal Opinions. The Lender shall have received the executed
--------------
legal opinion of XxXxxxx, XxXxxxx & Xxxxx, counsel to the Borrower in form
and substance satisfactory to the Lender.
(j) Other Conditions. The Borrower shall have satisfied any other
----------------
conditions set forth in the commitment letter from the Lender to the
Borrower dated June 19, 1997.
20
SECTION 5. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that so long as any amount is owing to the
Lender:
5.1 Financial Statements. The Borrower. shall furnish to the Lender:
--------------------
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of Xxxxxx International, Inc. and its Subsidiaries,
a copy of the audited consolidated and unaudited consolidating balance
sheet of Xxxxxx International, Inc. and its Subsidiaries including the
Borrower as of the end of such year and audited consolidated and unaudited
consolidating statements of operations, stockholders' equity and cash flows
for such year, setting forth for the consolidated statements, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Deloitte & Touche,
LLP, or other independent certified public accountants of nationally
recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of Xxxxxx International, Inc., the unaudited consolidated and
consolidating balance sheet of Xxxxxx International, Inc. and its
Subsidiaries including the Borrower as of the end of such quarter and the
related unaudited consolidated and consolidating statements of operations,
stockholders' equity and cash flows of Xxxxxx International, Inc. and its
Subsidiaries including the Borrower for such quarter and the portion of the
fiscal year through the end of such quarter, setting forth for the
consolidated statements, certified by Xxxxxx International's chief
financial officer as being fairly stated in all material respects when
considered in relation to the most recent audited consolidated financial
statements of Xxxxxx International, Inc.;
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
21
5.2 Certificates; Other Information. The Borrower shall furnish to the Lender:
-------------------------------
(a) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and 5.1(b), a certificate of Xxxxxx
International's chief financial officer (i) stating that, to the best of
such officer's knowledge, the Borrower and each Guarantor during such
period has observed or performed all of its covenants and other agreements,
and satisfied every condition, contained in this Agreement and in the Note
and the other Loan Documents to be observed, performed or satisfied by it,
and that such officer has obtained no knowledge of any Default or Event of
Default except as specified in such certificate and (ii) showing in detail
calculations supporting such statement in respect of all financial
covenants contained in this Agreement;
(b) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and 5.1(b), a certificate of Xxxxxx
International's chief financial officer stating that, to the best of such
officer's knowledge, Xxxxxx International, Inc. and Xxxxxx Service Group,
Inc. during such period has observed or performed all of its covenants and
other agreements contained in all its material agreements and that such
officer has obtained no knowledge of any default under such;
(c) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) projected consolidated and consolidating
financial statements of Xxxxxx International, Inc. all in detail and
prepared in accordance with GAAP consistently applied and certified by the
chief financial officer of Xxxxxx International, Inc.;
(d) within 5 Business Days after filing, copies of all filings with
the Securities and Exchange Commission including Form 10Ks and Form 10Qs;
(e) promptly after receipt thereof, a copy of all management letters
from the Borrower's or Guarantor's independent certified public
accountants, if and when issued; and
(f) promptly, such additional financial and other information and
copies of such documents and instruments as the Lender may from time to
time reasonably request.
5.3 Payment of Obligations. The Borrower shall pay, discharge or otherwise
----------------------
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith, including by
appropriate proceedings, and reserves, in conformity with GAAP with respect
thereto, have been provided on the books of the Borrower, as the case may be.
22
5.4 Conduct of Business and Maintenance of Existence. The Borrower shall
------------------------------------------------
continue to engage in business of the same general type as now conducted by it.
The Borrower shall each preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business and comply with all Contractual Obligations and Requirements of Law
except to the extent that failure to comply therewith could not, individually or
in the aggregate, have a Material Adverse Effect.
5.5 Maintenance of Property; Insurance. The Borrower shall keep the Mortgaged
----------------------------------
Property, in good working order and condition; maintain with financially sound
and reputable insurance companies insurance on all its property in such amounts
and against such risks (but including in any event business interruption,
environmental and product liability) as are usually insured against in the same
general area by companies engaged in the same or a similar business; furnish to
the Lender on an annual basis, and at least thirty days prior to the expiration
of any policy of insurance, a certificate demonstrating the existence of such
insurance; and upon written request, full information as to details of the
insurance carried.
5.6 Right to Reappraisal and Environmental Tests. The Lender may at
--------------------------------------------
any reasonable time, cause an appraisal to be conducted on the Mortgaged
Property or cause to be conducted on the Mortgaged Property such environmental
tests as the Lender may reasonably deem desirable. The Borrower will cooperate
with the making of any such appraisal or environmental tests. The Borrower
shall reimburse the Lender for any reasonable out of pocket costs of any such
appraisal or environmental tests.
5.7 Notices. The Borrower shall give notice to the Lender of:
-------
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or (ii) litigation, investigation or proceeding
which may exist at any time between the Borrower and any Governmental
Authority, which in either case, if not cured or if adversely determined,
as the case may be, would have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower in which the
amount involved is $100,000 or more and which is not covered by insurance
or in which injunctive or similar relief is sought which, if granted, could
have a Material Adverse Effect; and
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to
any Plan, or any withdrawal from, or the termination, Reorganization or
Insolvency of any Multiemployer Plan or (ii) the institution of proceedings
or the taking of any
23
other action by the PBGC or the Borrower or any Commonly Controlled Entity
or any Multiemployer Plan with respect to the withdrawal from, or the
terminating, Reorganization or Insolvency of, any Plan.
Each notice pursuant to this subsection shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower or Guarantor proposes to take with respect
thereto.
5.8 Environmental Laws. The Borrower shall:
------------------
(a) Comply with, and ensure compliance by all tenants and subtenants
of any real property owned or leased by the Borrower, if any, with, all
applicable Environmental Laws except to the extent that failure to do so would
not be reasonably expected to have a Material Adverse Effect.
(b) Obtain and comply with and maintain, and ensure that all such
tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws except to the extent that failure to do so would
not be reasonably expected to have a Material Adverse Effect.
(c) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws except to the extent
that the same are being contested in good faith by appropriate proceedings and
the pendency of such proceedings would not be reasonably expected to have a
Material Adverse Effect.
5.9 Master Lease; Occupy Mortgaged Property.
---------------------------------------
(a) The Borrower shall maintain a master lease for the Mortgaged
Property between the Borrower and Xxxxxx Service Group, Inc. Within 30 days
prior to the termination of such lease the Borrower shall furnish proof that the
lease has been extended to a date later than the Term Loan A Termination Date.
(b) Xxxxxx International, Inc. and its Subsidiaries including the
Borrower shall at all times occupy not less than 65% of the Mortgaged Property.
5.10 Operating Accounts. The Borrower shall open and maintain its
------------------
primary operating deposit account with the Lender.
5.11 Additional Guaranties.
---------------------
(a) If any of the existing Subsidiaries of Xxxxxx International, Inc.,
other than the Borrower or any Guarantor under this Agreement, shall become a
Material Subsidiary of Xxxxxx International, Inc., as reflected in the financial
statements
24
provided to the Lender under this Agreement, then upon the written request of
the Lender the Borrower shall cause such Material Subsidiary to become a
Guarantor hereunder by executing and delivering a Guaranty Agreement Supplement
in form and substance satisfactory to the Lender and to deliver such documents
as the Lender may reasonably require to establish that the execution and
delivery of such supplement was duly authorized by such Material Subsidiary.
(b) If Xxxxxx International, Inc. or any of its Subsidiaries shall, by
reason of any merger, asset acquisition or investment, cause there to be a
Material Subsidiary which is not a Guarantor hereunder, then the Borrower shall
cause such Material Subsidiary, upon the written request of the Lender after
such merger, asset acquisition or investment, to become a Guarantor hereunder by
executing and delivering a Guaranty Agreement Supplement in form and substance
satisfactory to the Lender and to deliver such documents as the Lender may
reasonably require to establish that the execution and delivery of such
supplement was duly authorized by such Material Subsidiary.
5.12 Further Assurances. The Borrower shall execute any and all
------------------
further documents, and take all further action which the Lender may reasonably
request in order to effectuate the transactions contemplated by the Loan
Documents. Without limiting the generality of the foregoing, such further
documents and actions shall include the execution of agreements and instruments,
and filing Uniform Commercial Code financing statements, in order to effectuate
the transactions contemplated by this Agreement and in order to grant, preserve,
protect and perfect the validity and priority of the security interests created
or intended to be created by the Loan Documents.[END OF SECTION]
25
SECTION 6. NEGATIVE COVENANTS
The Borrower hereby agrees that so long as any amount remains
outstanding under this Agreement:
6.1 Limitation on Indebtedness. The Borrower shall not create, incur, assume,
--------------------------
or suffer to exist any Indebtedness other than the Indebtedness under this
Agreement.
6.2 Limitation on Guarantee Obligations. The Borrower shall not create, incur,
-----------------------------------
assume, or suffer to exist any Guarantee Obligations.
6.3 Limitation on Liens. The Borrower shall not create, incur, assume or
-------------------
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except for:
(a) Liens in favor of the Lender;
(b) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
--------
respect to taxes which are being contested are maintained on the books of
the Borrower, in conformity with GAAP;
(c) carriers', warehousemen's, construction liens, repairmen's or
other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 90 days or which are being contested in
good faith by appropriate proceedings;
(d) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations and other
obligations of a like nature incurred in the ordinary course of business;
and
(f) easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, are not substantial in amount and
which do not in any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary conduct of the
business of the Borrower.
6.4 Limitations on Fundamental Changes. The Borrower shall not form, invest in
----------------------------------
or make a loan to any Subsidiary, change the corporate structure, enter into any
merger, consolidation or amalgamation, or liquidate, wind up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease, assign,
transfer or otherwise dispose of, all or substantially all of its property,
business or assets without the prior written consent of the Lender.
26
6.5 Limitation on Dividends; Stock Repurchases. The Borrower shall not declare
------------------------------------------
or pay any dividend (other than dividends payable solely in common stock of the
Borrower) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any shares of any class of Capital Stock of
the Borrower whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of the Borrower without the prior written consent
of the Lender.
6.6 Limitation on Investments, Loans and Advances. The Borrower shall not make
---------------------------------------------
any advance, loan, extension of credit or capital contribution to, or purchase
any stock, bonds, notes, debentures or other securities of or any assets
constituting a business unit of, or make any other investment in, any Person (an
"Investment"), except:
----------
(a) extensions of trade credit in the ordinary course of business;
(b) investments in (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than 180 days from
the date of acquisition, (ii) time deposits and certificates of deposit
having maturities of not more than 180 days from the date of acquisition of
the Lender or of any domestic commercial bank the long-term debt of which
is rated at least A-2 or the equivalent thereof by Standard & Poor's
Corporation or a-2 or the equivalent thereof by Xxxxx'x Investors Service,
Inc. and having capital and surplus in excess of $500,000,000, (iii)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (i) and (ii)
entered into with any bank meeting the qualifications specified in clause
(ii) above, (iv) commercial paper rated at least A-2 or the equivalent
thereof by Standard & Poor's Corporation or a-2 or the equivalent thereof
by Xxxxx'x Investors Service, Inc. and in either case maturing within 180
days after the date of acquisition and (v) securities issued by any
municipality in the United States rated at least A-2 or the equivalent
thereof by Standard & Poor's Corporation or a-2 or the equivalent thereof
by Xxxxx'x Investors Service, Inc. and in either case maturing within 270
days after the date of acquisition ("Cash Equivalents"); and
----------------
(c) Investments arising as a result of the compromise or settlement
of accounts in the ordinary course of business as generally conducted over
a period of time.
6.7 Transactions with Affiliates. The Borrower shall not enter into any
----------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate, unless
such transaction is in the ordinary course of, and pursuant to the reasonable
requirements of, the Borrower is in good faith and is upon fair and reasonable
terms no less favorable to the Borrower than it would obtain in a comparable
arm's length transaction with a Person not an Affiliate.
27
6.8 Sale and Leaseback. The Borrower shall not enter into any arrangement with
------------------
any Person providing for the leasing by the Borrower of real or personal
property which has been or is to be sold or transferred by the Borrower to such
Person or to any other Person to whom funds have been or are to be advanced by
such Person on the security of such property or rental obligations of the
Borrower. [END OF SECTION]
28
SECTION 7. EVENTS OF DEFAULT; REMEDIES
7.1 Events of Default. The following shall be an "Event of Default":
------------------ ----------------
(a) The Borrower shall fail to pay any principal of or interest on
the Note or any fee or other amount payable hereunder when due in accordance
with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or in any other Loan Document or which is contained in any
certificate, document or financial or other statement furnished at any time
under or in connection with this Agreement or other Loan Document shall prove to
have been materially incorrect; or
(c) The Borrower shall default in the observance or performance of
any agreement contained in Section 6 of this Agreement; or
(d) The Borrower shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Documents
(other than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days; or
(e) There shall be an "Event of Default" under the Guaranty; or
(f) The Borrower shall (i) default in any payment of principal of or
interest on any Indebtedness, or in the payment of any Guarantee Obligation
(provided that the principal amount of such Indebtedness or Guarantee Obligation
exceeds, individually, or in the aggregate, $100,000), provided in the
instrument or agreement under which such Indebtedness or Guarantee Obligation
was created; or (ii) default in the observance or performance of any other
agreement or condition relating to any such Indebtedness or Guarantee Obligation
(provided that the principal amount of such Indebtedness or Guarantee Obligation
exceeds, individually, or in the aggregate, $100,000) or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or
(g) (i) The Borrower shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation,
29
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its assets, or the Borrower shall
make a general assignment for the benefit of its creditors; or (ii) there shall
be commenced against the Borrower any case, proceeding or other action of a
nature referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii) there
shall be commenced against the Borrower any case, proceeding or other action
seeking issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the entry
thereof; or (iv) the Borrower shall take any action in furtherance of, or
indicating its consent to, approval of, or acquiescence in, any of the acts set
forth in clause (i), (ii), or (iii) above; or
(h) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
or (ii) any other event or condition shall occur or exist, with respect to a
Plan; and in each case in clauses (i) and (ii) above, such event or condition,
together with all other such events or conditions, if any, could, in the
reasonable judgment of the Lender, subject the Borrower to any tax, penalty or
other liabilities that in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(i) One or more judgments or decrees shall be entered against the
Borrower involving in the aggregate a liability (not paid or fully covered by
insurance) of $100,000 or more and (i) all such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 60 days
from the entry thereof or (ii) the judgment creditors with respect to such
judgments or their successors or assigns shall have commenced enforcement
proceedings, which enforcement proceedings shall have remained unstayed for 10
consecutive days; or
(j) The Borrower shall cease to be a wholly owned subsidiary of a
Guarantor; or
(k) The Borrower shall so assert or the security interests created by
any Loan Document shall cease for any reason, unless caused by the action or
inaction of the Lender, to be enforceable and of the same effect and priority
purported to be created thereby.
(k) The Consolidated Fixed Charge Coverage Ratio of Xxxxxx
International, Inc. on the last day of any fiscal quarter for the period
including the fiscal quarter then ending and the immediately preceding three
fiscal quarters shall be less than 1.00 to 1.00.
7.2 Acceleration; waiver. (a) If an Event of Default specified in
--------------------
clause (i) or (ii) of paragraph (g) above with respect to the Borrower occurs,
the Term
30
Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the Note shall immediately become due and payable.
(b) If any Event of Default not referenced in Subsection 7.2(a) shall
occur, the Lender may by notice of default to the Borrower, declare the Term
Loans (with accrued interest thereon) and all other amounts owing under this
Agreement and the Note to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Upon the term Loan becoming due and payable
the Lender may exercise in whatever order it chooses, whatever remedies may be
available under to the Lender under the Loan Documents, common law, the UCC or
otherwise. The Lender shall have no obligation to exercise any remedies that it
may have with respect to the Mortgaged Property before proceeding directly
against the Borrower, any of its other assets, or otherwise.
(c) Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly
waived.[END OF SECTION]
31
SECTION 8. MISCELLANEOUS
8.1 Amendments and Waivers. This Agreement and the Note or any terms hereof or
----------------------
thereof may not be amended, supplemented or modified except in accordance with
the provisions of this subsection. The Lender, the Borrower may, from time to
time, enter into written amendments, supplements or modifications hereto and to
the Note for the purpose of adding any provisions to this Agreement or the Note
or changing in any manner the rights of the Lender or of the Borrower hereunder
or thereunder. The Lender may, from time to time, execute written instruments
waiving, on such terms and conditions as the Lender may specify in such
instrument, any of the requirements of the Loan Documents or any Default or
Event of Default and its consequences. In the case of any waiver, the Borrower,
the Lender shall be restored to their former position and rights hereunder and
under the outstanding Note and any other Loan Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon. Lender shall have the right to charge a
fee with respect to any amendment or waiver granted hereunder.
8.2 Notices. All notices, requests and demands to or upon the respective
-------
parties hereto to be effective shall be in writing, and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered by hand, or, in the case of telecopy notice, when received, or, in the
case of a nationally recognized courier service, one Business Day after delivery
to such courier service, addressed as follows in the case of the Borrower and
the Lender or to such other address as may be hereafter notified by the
respective parties hereto and any future holders of the Note:
The Borrower: Xxxxxx of New Jersey Realty Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
The Lender: Fleet Bank, National Association
000 Xxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
8.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay in
------------------------------
exercising, on the part of the Lender, any right, remedy, power or privilege
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
8.4 Survival of Representations and Warranties. All representations and
------------------------------------------
warranties made hereunder or under any other Loan Document and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the
32
execution and delivery of this Agreement and the Note.
8.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay or reimburse
-----------------------------
the Lender for all its out-of-pocket costs and expenses incurred in connection
with the development, preparation and execution of, and any amendment,
supplement or modification to, this Agreement, the Note, and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, provided that any legal fees of the Lender shall be limited to the
reasonable fees and disbursements of counsel to the Lender, (b) to pay or
reimburse the Lender for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the Note,
the other Loan Documents and any such other documents, provided that any legal
fees of the Lender shall be limited to the reasonable fees and disbursements of
counsel to the Lender, and (c) to pay, indemnify, and hold the Lender harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the Note,
the other Loan Documents and any such other documents. The agreements in this
subsection shall survive repayment of the Note and all other amounts payable
hereunder.
8.6 Indemnification. The Borrower will defend, indemnify, and hold harmless
---------------
the Lender, its subsidiaries, shareholders, employees, agents, attorneys,
officers, and directors, from and against any and all claims, demands,
penalties, causes of action, fines, liabilities, settlements, damages, costs, or
expenses of whatever kind or nature, known or unknown, foreseen or unforeseen,
contingent or otherwise (including, without limitation, counsel and consultant
fees and expenses, investigation and laboratory fees and expenses, court costs,
and litigation expenses) arising out of, or in any way related to, (a) the
execution, delivery, enforcement, performance and administration of any Loan
Document, (b) the presence, disposal, spillage, discharge, emission, leakage,
release, or threatened release of any Materials of Environmental Concern which
is at, in, on, under, about, from or affecting the Borrower's property for which
the Borrower is in any way responsible, (c) any personal injury (including
wrongful death) or property damage (real or personal) arising out of or related
to any such materials, (d) any lawsuit brought or threatened, settlement
reached, or order or directive of or by any Governmental Authority relating to
such materials, or (e) any violation or alleged violation of any Environmental
Laws by the Borrower. The Borrower shall not, without the prior written consent
of the Lender, effect any settlement of any pending or threatened proceeding,
claim or action against the Lender, in respect of which the Lender or its
parent, subsidiaries, affiliates, employees, agents, officers or directors is a
party or would be entitled to seek indemnification hereunder, unless such
settlement includes an unconditional release of the Lender and its parent,
subsidiaries, affiliates, employees, agents, attorneys, officers or directors
from all liability on claims that are the subject matter of such claim, action
or other proceeding and is otherwise acceptable
33
to the Lender and its counsel, in their sole discretion. Provided, that the
--------
Borrower shall have no obligation hereunder to the Lender with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of the Lender. The agreements in this subsection shall survive repayment of the
Note and all other amounts payable hereunder.
8.7 Successors and Assigns; Participation; Purchasing Lender.
--------------------------------------------------------
(a) This Agreement shall be binding upon and inure to the benefit of
the Borrower, the Lender, all future holders of the Note and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Lender.
(b) The Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
banks or other entities ("Participants") participating interests in the Term
------------
Loans. In the event of any such sale by the Lender of participating interests
to a Participant, the Lender's obligations under this Agreement to the Borrower
shall remain unchanged, the Lender shall remain solely responsible for the
performance thereof, the Lender shall remain the holder of the Note for all
purposes under this Agreement and the other Loan Documents, and the Borrower
shall continue to deal solely and directly with the Lender in connection with
the Lender's rights and obligations and the rights of the Participants under
this Agreement and the other Loan Documents. The Borrower agrees that if
amounts outstanding under this Agreement and the Note are due or unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement and the Note to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under the Loan
Documents, provided that such Participant shall only be entitled to such right
--------
of set-off if it shall have agreed in the agreement pursuant to which it shall
have acquired its participating interest to share with the Lender the proceeds
thereof as provided in this Agreement. The Borrower also agrees that each
Participant shall be entitled to the benefits of subsections 2.8, 2.9, 2.10,
2.11, 2.10, 8.5 and 8.6 with respect to its participation in the Term Loans
outstanding from time to time; provided, that no Participant shall be entitled
--------
to receive any greater amount pursuant to such subsections than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(c) The Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or more
additional banks or financial institutions ("Purchasing Lender") all or any part
-----------------
of its rights and obligations under the Loan Documents.
(d) The Borrower authorizes the Lender to disclose to any Participant
or Purchasing Lender (each, a "Transferee") and any prospective Transferee
----------
34
any and all financial information in the Lender's possession concerning the
Borrower and the Borrowers' Affiliates which has been delivered to the Lender by
or on behalf of the Borrower pursuant to this Agreement or which has been
delivered to the Lender by or on behalf of the Borrower in connection with the
Lender's credit evaluation of the Borrower and the Borrowers' Affiliates prior
to becoming a party to this Agreement.
(e) Nothing herein shall prohibit the Lender from pledging or
assigning the Note to any Federal Reserve Lender in accordance with applicable
law.
8.8 Counterparts. This Agreement may be executed by one or more of the parties
------------
to this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
8.9 Severability. Any provision of this Agreement which is prohibited or
------------
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
8.10 Integration. This Agreement and the other Loan Documents represent the
-----------
agreement of the Borrower and the Lender with respect to the subject matter
hereof, and there are no promises, undertakings, representations or warranties
by the Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
8.11 GOVERNING LAW. THE LOAN DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE
-------------
PARTIES UNDER THE LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW JERSEY.
8.12 Submission To Jurisdiction; Waivers. The Borrower hereby irrevocably and
-----------------------------------
unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to the Loan Documents, or for recognition and enforcement of
any judgment in respect thereof, to the non-exclusive general jurisdiction of
the Courts of the State of New Jersey, the courts of the United States of
America for the District of New Jersey, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail (or
any
35
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in this Agreement or at such other address of which the Lender
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this subsection any punitive damages.
8.13 Acknowledgements. The Borrower hereby acknowledges that:
----------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of the Loan Documents;
(b) the Lender does not have any fiduciary relationship to the
Borrower and the relationship between the Lender, on one hand, and the Borrower
on the other hand, is solely that of debtor and creditor; and
(c) no joint venture exists between the Lender and the Borrower.
8.14 WAIVERS OF JURY TRIAL. THE BORROWER AND THE LENDER HEREBY IRREVOCABLY AND
---------------------
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THE LOAN DOCUMENTS AND FOR ANY COUNTERCLAIM THEREIN.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in Newark, New Jersey by their proper and duly
authorized officers as of the day and year first above written.
Xxxxxx of New Jersey Realty Corp.
as Borrower
By: /s/Xxxxxxx X. Xxxxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Senior Vice President
Fleet Bank, National Association
as Lender
By: /s/ Xxxxx Xxxxxxxxx
-------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
36
Schedules:
Schedule 3.6 Litigation: None
Schedule 3.12 ERISA Matters None
Schedule 3.14 Environmental Matters - None
37
Exhibit A
[Form of] Term Loan A Note
$6,400,000.00 NOVEMBER 12, 1997
XXXXXX OF NEW JERSEY REALTY CORP. (the "Borrower"), for value received, hereby
promises to pay to the order of FLEET BANK, NATIONAL ASSOCIATION (the "Lender"),
in lawful money of the United States of America and in immediately available
funds, the principal sum of six million four hundred thousand dollars, together
with interest from the date hereof on the unpaid principal balance of this Note,
payable in accordance with the Credit Agreement dated November 12, 1997 by and
between the Borrower and the Lender, as the same may be amended from time to
time (the "Agreement"). Interest on any amounts outstanding under this Note
shall accrue at the rate provided for in the Agreement. In no event shall the
interest rate payable hereon exceed the maximum rate of interest permitted by
law. Capitalized terms used herein which are defined in the Agreement shall
have the meanings therein defined. This Note is the Term Note referred to in
the Agreement, and is entitled to the benefits and is subject to the terms of
the Agreement. This Note is repayable in the amounts and under the
circumstances, and its maturity is subject to acceleration upon the terms, set
forth in the Agreement. In the event of any conflict between the terms of this
Note and the terms of the Agreement, the terms of the Agreement shall control.
Presentment for payment, demand, notice of dishonor, protest, notice of
protest and all other demands and notices in connection with the delivery,
performance and enforcement of this Note are hereby waived. Upon the occurrence
of any Event of Default specified in the Agreement, all amounts then remaining
unpaid on this Note may, pursuant to the Agreement, be declared to be
immediately due and payable, all as provided in the Agreement. This Note shall
be construed and enforceable in accordance with, and be governed by the internal
laws of, the State of New Jersey. This Note may not be changed orally, but only
by an instrument in writing executed pursuant to the provisions of the
Agreement.
[Signature of Borrower]
38
Exhibit B
[Form of] Term Loan B Note
$350,000.00 NOVEMBER 12, 1997
XXXXXX OF NEW JERSEY REALTY CORP. (the "Borrower"), for value received, hereby
promises to pay to the order of FLEET BANK, NATIONAL ASSOCIATION (the "Lender"),
in lawful money of the United States of America and in immediately available
funds, the principal sum of three hundred and fifty thousand dollars, together
with interest from the date hereof on the unpaid principal balance of this Note,
payable in accordance with the Credit Agreement dated November 12, 1997 by and
between the Borrower and the Lender, as the same may be amended from time to
time (the "Agreement"). Interest on any amounts outstanding under this Note
shall accrue at the rate provided for in the Agreement. In no event shall the
interest rate payable hereon exceed the maximum rate of interest permitted by
law. Capitalized terms used herein which are defined in the Agreement shall
have the meanings therein defined. This Note is the Term Note referred to in
the Agreement, and is entitled to the benefits and is subject to the terms of
the Agreement. This Note is repayable in the amounts and under the
circumstances, and its maturity is subject to acceleration upon the terms, set
forth in the Agreement. In the event of any conflict between the terms of this
Note and the terms of the Agreement, the terms of the Agreement shall control.
Presentment for payment, demand, notice of dishonor, protest, notice of
protest and all other demands and notices in connection with the delivery,
performance and enforcement of this Note are hereby waived. Upon the occurrence
of any Event of Default specified in the Agreement, all amounts then remaining
unpaid on this Note may, pursuant to the Agreement, be declared to be
immediately due and payable, all as provided in the Agreement. This Note shall
be construed and enforceable in accordance with, and be governed by the internal
laws of, the State of New Jersey. This Note may not be changed orally, but only
by an instrument in writing executed pursuant to the provisions of the
Agreement.
[Signature of Borrower]
39
Exhibit C
[payment dates and notional reductions as per swap]
40
