REVOLVING CREDIT AGREEMENT AND SECURITY AGREEMENT dated as of April 20, 2009 among WALTER INVESTMENT MANAGEMENT CORP., as Borrower, and WALTER INDUSTRIES, INC., as Lender
Exhibit 10.1.3
REVOLVING CREDIT AGREEMENT AND SECURITY AGREEMENT
dated as of April 20, 2009
among
XXXXXX INVESTMENT MANAGEMENT CORP.,
as Borrower,
among
XXXXXX INVESTMENT MANAGEMENT CORP.,
as Borrower,
and
XXXXXX INDUSTRIES, INC.,
as Lender
as Lender
TABLE OF CONTENTS
Page | ||||
ARTICLE I DEFINITIONS; CONSTRUCTION |
1 | |||
Section 1.1. Definitions |
1 | |||
Section 1.2. [Reserved] |
2 | |||
Section 1.3. [Reserved] |
2 | |||
Section 1.4. Terms Generally |
2 | |||
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS |
3 | |||
Section 2.1. General Description of Facilities |
3 | |||
Section 2.2. Loans |
3 | |||
Section 2.3. Procedure for Borrowings |
3 | |||
Section 2.4. [Reserved] |
3 | |||
Section 2.5. Funding of Loans |
3 | |||
Section 2.6. [Reserved] |
3 | |||
Section 2.7. Termination |
3 | |||
Section 2.8. Repayment of Loans |
4 | |||
Section 2.9. Optional Prepayments |
4 | |||
Section 2.10. [Reserved] |
4 | |||
Section 2.11. Interest on Loans |
4 | |||
Section 2.12. Fees |
4 | |||
Section 2.13. Computation of Interest and Fees |
5 | |||
Section 2.14. [Reserved] |
5 | |||
Section 2.15. [Reserved] |
5 | |||
Section 2.16. [Reserved] |
5 | |||
Section 2.17. [Reserved] |
5 | |||
Section 2.18. Taxes |
5 | |||
Section 2.19. Payments Generally |
6 | |||
ARTICLE III CONDITIONS PRECEDENT TO LOANS |
6 | |||
Section 3.1. Conditions To Effectiveness |
6 | |||
Section 3.2. Each Credit Event |
7 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES |
8 | |||
Section 4.1. Existence; Power |
8 | |||
Section 4.2. Organizational Power; Authorization |
8 | |||
Section 4.3. Governmental Approvals; No Conflicts |
8 | |||
Section 4.4. [Reserved] |
8 | |||
Section 4.5. [Reserved] |
8 | |||
Section 4.6. Compliance with Laws and Agreements |
8 | |||
Section 4.7. Investment Company Act, Etc. |
8 | |||
Section 4.8. [Reserved] |
9 | |||
Section 4.9. Margin Regulations |
9 |
Page | ||||
Section 4.10. [Reserved] |
9 | |||
Section 4.11. Ownership of Property |
9 | |||
Section 4.12. [Reserved] |
10 | |||
Section 4.13. [Reserved] |
10 | |||
Section 4.14. [Reserved] |
10 | |||
Section 4.15. [Reserved] |
10 | |||
Section 4.16. OFAC |
10 | |||
Section 4.17. Patriot Act |
10 | |||
ARTICLE V AFFIRMATIVE COVENANTS |
10 | |||
Section 5.1. Financial Statements and Other Information |
10 | |||
Section 5.2. Notices of Material Events |
10 | |||
Section 5.3. Existence; Conduct of Business |
11 | |||
Section 5.4. Compliance with Laws, Etc. |
11 | |||
Section 5.5. Payment of Obligations |
11 | |||
Section 5.6. Books and Records |
12 | |||
Section 5.7. Visitation, Inspection, Etc. |
12 | |||
Section 5.8. Maintenance of Properties; Insurance |
12 | |||
Section 5.9. Claims for Reinsurance Recovery |
12 | |||
ARTICLE VI FINANCIAL COVENANTS |
12 | |||
Section 6.1. Minimum Unencumbered Assets |
12 | |||
ARTICLE VII NEGATIVE COVENANTS |
12 | |||
Section 7.1. Indebtedness and Preferred Equity |
13 | |||
Section 7.2. Negative Pledge |
13 | |||
Section 7.3. Additional Negative Covenants |
13 | |||
ARTICLE VIII EVENTS OF DEFAULT |
13 | |||
Section 8.1. Events of Default |
13 | |||
ARTICLE IX SECURITY PROVISIONS |
15 | |||
Section 9.1. Grant of Security Interest |
15 | |||
Section 9.2. Remedies |
16 | |||
ARTICLE X MISCELLANEOUS |
16 | |||
Section 10.1. Notices |
16 | |||
Section 10.2. Waiver; Amendments |
17 | |||
Section 10.3. Expenses; Indemnification |
18 | |||
Section 10.4. Successors and Assigns |
19 | |||
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process |
19 | |||
Section 10.6. WAIVER OF JURY TRIAL |
19 |
ii
Page | ||||
Section 10.7. Right of Setoff |
20 | |||
Section 10.8. Counterparts; Integration |
20 | |||
Section 10.9. Survival |
20 | |||
Section 10.10. Severability |
20 | |||
Section 10.11. Confidentiality |
21 | |||
Section 10.12. [Reserved] |
21 | |||
Section 10.13. [Reserved] |
21 | |||
Section 10.14. Patriot Act |
21 |
iii
REVOLVING CREDIT AGREEMENT AND SECURITY AGREEMENT
THIS REVOLVING CREDIT AGREEMENT AND SECURITY AGREEMENT (this “Agreement”) is made and entered
into as of April 20, 2009, by and among XXXXXX INVESTMENT MANAGEMENT CORP., a Maryland corporation
(the “Borrower”), and Xxxxxx Industries, Inc. (the “Lender”).
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders establish a $10,000,000 revolving credit
facility in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the Lender is willing to
establish the requested revolving credit facility in favor of the Borrower.
NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
the Borrower and the Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1. Definitions. Unless otherwise defined in the Syndicated Credit
Agreement and in addition to the other terms defined herein, the following terms used herein shall
have the meanings herein specified (to be equally applicable to both the singular and plural forms
of the terms defined):
“Availability Period” shall mean the period from Effectiveness Date to but excluding
the Termination Date.
“Borrower” shall have the meaning in the introductory paragraph hereof.
“Collateral” shall have the meaning provided in Section 9.1.
“Commitment” shall mean the commitment of the Lender to make Loans to the Borrower in
an amount not to exceed $10,000,000.
“Default” shall mean any condition or event that, with the giving of notice or the
lapse of time or both, would constitute an Event of Default.
“Effectiveness Date” shall mean the date on which the conditions precedent set forth
in Section 3.1 and Section 3.2 have been satisfied or waived in accordance with Section 10.2.
“Event of Default” shall have the meaning provided in Article VIII.
“Interest Rate” shall mean the rate per annum equal to three-month or one-month, as
directed by the Borrower, LIBOR as published in the Wall Street Journal for the Business Day
previous to the date the request for such Loan is made plus 4.00%.
“Loan” shall have the meaning provided in Section 2.2.
“Material Adverse Effect” shall mean (a) a material adverse change in, or a material
adverse effect upon, the operations, business, assets, properties, liabilities (actual or
contingent), condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries
taken as a whole; (b) a material impairment of the ability of the Borrower to perform its
obligations under this Agreement; (c) a material impairment of the rights and remedies of the
Lender under this Agreement; or (d) a material adverse effect upon the effect, validity, binding
effect or enforceability against the Borrower of this Agreement.
“Obligations” shall mean all amounts owing by the Borrower to the Lender pursuant to
or in connection with this Agreement or otherwise with respect to any Loan including without
limitation, all principal, interest (including any interest accruing after the filing of any
petition in bankruptcy or the commencement of any insolvency, reorganization or like proceeding
relating to the Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding), all reimbursement obligations, fees, expenses, indemnification and
reimbursement payments, costs and expenses (including all fees and expenses of counsel to the
Lender) incurred pursuant to this Agreement), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or thereunder.
“Payment Office” shall mean the office designate from time to time by the Lender to
the Borrower.
“Reinsurance Policy” shall mean an insurance policy issued by an insurance company
authorized to do business in the United States and having a Best Financial rating of A or better
which is obtained by Borrower and maintained by its Bermuda based Captive Insurance Company,
Xxxxxx Investment Reinsurance Co., Ltd. The policy shall provide for named windstorm excess of loss
coverage terms with a minimum of $10,000,000 in per occurrence limits and a maximum deductible or
self insured retention of $2,500,000.
“Syndicated Credit Agreement” shall mean that certain Revolving Credit Agreement,
dated as of April 20, 2009, among the Borrower, SunTrust Bank, as administrative agent and the
lenders from time to time parties thereto.
“Termination Date” shall mean April 20, 2011.
Section 1.2. [Reserved].
Section 1.3. [Reserved].
Section 1.4. Terms Generally. The definitions of terms herein shall apply equally to
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”. In the
computation of periods of time from a specified date to a later specified date, the word “from”
means “from and including” and the word “to” means “to but excluding”. Unless
2
the context requires
otherwise (i) any definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document as it was
originally executed or as it may from time to time be amended, restated, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or modifications set forth
herein), (ii) any reference herein to any Person shall be construed to include such Person’s
successors and permitted assigns, (iii) the words “hereof”, “herein” and “hereunder” and words of
similar import shall be construed to refer to this Agreement as a whole and not to any particular
provision hereof, (iv) all references to Articles and Sections shall be construed to refer to
Articles and Sections to this Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Lender’s office, unless otherwise
indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1. General Description of Facilities. Subject to and upon the terms and
conditions herein set forth, (i) the Lender hereby establishes in favor of the Borrower a revolving
credit facility pursuant to which it agrees to make Loans to the Borrower in accordance with
Section 2.2.
Section 2.2. Loans. Subject to the terms and conditions set forth herein, the Lender
agrees to make revolving loans (each, a “Loan”) to the Borrower from time to time during
the Availability Period, in an aggregate principal amount outstanding at any time that will not
result in the aggregate principal amount of all outstanding Loans exceeding $10,000,000. During
the Availability Period, the Borrower shall be entitled to borrow, prepay and reborrow Loans in
accordance with the terms and conditions of this Agreement; provided, that the Borrower may
not borrow or reborrow should there exist a Default or Event of Default.
Section 2.3. Procedure for Borrowings. The Borrower shall give the Lender written
notice (or telephonic notice promptly confirmed in writing) of each borrowing (a “Notice of
Borrowing”) prior to 11:00 a.m. three (3) Business Day prior to the requested date of each
borrowing. Each Notice of Borrowing shall be irrevocable and shall specify: (i) the aggregate
principal amount of such Loan and (ii)
the date of such Loan (which shall be a Business Day). The aggregate principal amount of each
Loan shall be at least $1,000,000 and any larger multiple of $500,000.
Section 2.4. [Reserved].
Section 2.5. Funding of Loans.
The Lender will make available each Loan to be made by it hereunder on the proposed date
thereof effecting a wire transfer of such amounts to an account designated by the Borrower to the
Lender.
Section 2.6. [Reserved].
Section 2.7. Termination.
3
Unless previously terminated, all Commitments shall terminate on the Commitment Termination
Date.
Section 2.8. Repayment of Loans.
(a) The outstanding principal amount of all Loans shall be due and payable (together with
accrued and unpaid interest thereon) on the Termination Date.
(b) Notwithstanding anything herein to the contrary, at any time after the Effectiveness
Date, the Borrower will apply 100% of the net cash proceeds received by the Borrower or any of its
Subsidiaries in connection with the Reinsurance Policy towards the prepayment of any Obligations
outstanding under this Agreement, such prepayment to be effected promptly and in no event later
than two Business Days after receipt of the net cash proceeds.
Section 2.9. Optional Prepayments. The Borrower shall have the right at any time and
from time to time to prepay any Loan, in whole or in part, without premium or penalty, by giving
irrevocable written notice (or telephonic notice promptly confirmed in writing) to the Lender no
later than 11:00 a.m. not less than three (3) Business Days prior to any such prepayment. Each
such notice shall be irrevocable and shall specify the proposed date of such prepayment and the
principal amount of each Loan or portion thereof to be prepaid
Section 2.10. [Reserved].
Section 2.11. Interest on Loans.
(a) The Borrower shall pay interest on each Loan at the Interest Rate.
(b) [Reserved].
(c) Notwithstanding clauses (a) above, if an Event of Default has occurred and is continuing,
at the option of the Lenders, and after acceleration, the Borrower shall pay interest (“Default
Interest”) with respect to all Loans at the rate per annum equal to 200 basis points above the
Interest Rate.
(d) Interest on the principal amount of all Loans shall accrue from and including the date
such Loans are made to but excluding the date of any repayment thereof. Interest on all
outstanding Loans shall be payable on each day which occurs every three months after the initial
date of the Loan, and on the Termination Date.
Section 2.12. Fees.
(a) The Borrower shall pay to the Lender a fee equal to $25,000, payable on the making of the
initial Loan hereunder.
(b) The Borrower agrees to pay to the Lender a commitment fee equal to 0.50% per annum on the
daily amount of the unused Commitment during the Availability Period.
4
(c) [Reserved].
(d) [Reserved].
(e) Accrued fees under paragraphs (b) above shall be payable quarterly in arrears on the last
day of each March, June, September and December, commencing after the full first fiscal quarter
after the initial making of any Loans hereunder, and on the Termination Date.
Section 2.13. Computation of Interest and Fees. Interest and all fees shall be
computed on the basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). Each determination by the Lender of an
interest rate or fee hereunder shall be made in good faith and, except for manifest error, shall be
final, conclusive and binding for all purposes.
Section 2.14. [Reserved].
Section 2.15. [Reserved].
Section 2.16. [Reserved].
Section 2.17. [Reserved].
Section 2.18. Taxes.
(a) Any and all payments by or on account of any obligation of the Borrower hereunder shall be
made free and clear of and without deduction for any Indemnified Taxes or Other Taxes;
provided, that if the Borrower shall be required to deduct any Indemnified Taxes or Other
Taxes from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to Indemnified Taxes and Other
Taxes) the Lender shall receive an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes (to the extent not duplicative of
amounts paid in Section 2.18(a)) to the relevant Governmental Authority in accordance with
applicable law.
(c) The Borrower shall indemnify the Lender, within five (5) Business Days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by the Lender on
or with respect to any payment by or on account of any obligation of the Borrower hereunder
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section 2.18) and any penalties, interest and reasonable expenses
arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to the Borrower by a Lender
shall be conclusive absent manifest error.
5
(d) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall, to the extent available to the Borrower,
deliver to the Lender the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Lender.
(e) [Reserved].
(f) If the Lender determines, in its sole discretion, that it has received any credit or
refund of any Indemnified Tax or Other Tax as to which it has been indemnified by the Borrower, it
shall pay over such refund or credit to Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by Borrower under this Section, with respect to
Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that Borrower, upon request of the
Lender, agrees to repay the amount paid over the Borrower (plus any penalties, interest or other
charges imposed by the Governmental Authority) to the Lender in the event the Lender is requested
to repay such refund to the Governmental Authority.
Section 2.19. Payments Generally.
The Borrower shall make each payment required to be made by it hereunder (whether of
principal, interest or fees, or of amounts payable under Section 2.19, or otherwise) prior to 12:00
noon on the date when due, in immediately available funds, free and clear of any defenses, rights
of set-off, counterclaim, or withholding or deduction of taxes. Any amounts received after such
time on any date may, in the discretion of the Lender, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such payments shall be
made to the Lender at the Payment Office. If any payment hereunder shall be due on a day that is
not a Business Day, the date for payment shall be extended to the next succeeding Business Day,
and, in the case of any payment accruing interest, interest thereon shall be made payable for the
period of such extension. All payments hereunder shall be made in Dollars.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS
Section 3.1. Conditions To Effectiveness. The obligations of the Lender to make Loans
shall not become effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 10.2).
(a) The Lender shall have received payment of all fees, expenses and other amounts due and
payable on or prior to the Effectiveness Date.
(b) The Lender (or its counsel) shall have received the following, each to be in form and
substance satisfactory to the Lender:
6
(i) a counterpart of this Agreement signed by or on behalf of the Borrower (which may
include telecopy transmission of a signed signature page of this Agreement) or written
evidence reasonably satisfactory to the Lender that the Borrower has signed a counterpart of
this Agreement;
(ii) a certificate of the Secretary or Assistant Secretary of the Borrower, attaching
and certifying copies of its bylaws and of the resolutions of its board of directors
authorizing the execution, delivery and performance of this Agreement and
certifying the name, title and true signature of each officer of the Borrower executing
this Agreement;
(iii) certified copies of the articles or certificate of incorporation, certificate of
organization or limited partnership, or other registered organizational documents of the
Borrower, together with certificates of good standing or existence, as may be available from
the Secretary of State of the jurisdiction of organization of the Borrower;
(iv) [Reserved]; and
(v) a certificate dated the Effectiveness Date and signed by a Responsible Officer,
certifying that after giving effect to the funding any initial Loan, (x) no Default or Event
of Default exists and (y) all representations and warranties of the Borrower set forth in
this Agreement are true and correct.
(c) Each document (including any Uniform Commercial Code financing statement) required by this
Agreement or under law or reasonable requested by the Lender to be filed, registered or recorded in
order to create in favor of the Lender a perfected Lien on the Collateral, prior and superior in
right to any Person shall be in proper form for filing and registration.
(d) The Lender shall have received a certificate of insurance providing evidence of the
coverage meeting the requirements set forth in the definition of Reinsurance Policy and such
certificate shall provide that written notice of any change or cancellation be provided to the
Lender within 30 days.
(e) A major hurricane has occurred with projected losses greater than $2,500,000 self-insured
retention.
Section 3.2. Each Credit Event. The obligation of the Lender to make a Loan on the
occasion of any Loan is subject to the satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to such Loan, no Default or Event of
Default shall exist; and
(b) at the time of and immediately after giving effect to such Loan all representations and
warranties of the Borrower set forth in this Agreement shall be true and correct on and as of the
date of such Loan, before and after giving effect thereto except to the
7
extent that such
representations and warranties specifically relate to an earlier date, in which case such
representations and warranties specifically refer to such earlier date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender as follows:
Section 4.1. Existence; Power. The Borrower (i) is duly organized, validly existing
and in good standing as a corporation, partnership or limited liability company under the laws of
the jurisdiction of its organization, (ii) has all requisite power and authority to carry on its
business as now conducted, and (iii) is duly qualified to do business, and is in good standing, in
each jurisdiction where such qualification is required, except where a failure to be so qualified
could not reasonably be expected to result in a Material Adverse Effect.
Section 4.2. Organizational Power; Authorization. The execution, delivery and
performance by the Borrower of this Agreement is within the Borrower’s organizational powers and
has been duly authorized by all necessary organizational and if required, shareholder, partner or
member, action. This Agreement has been duly executed and delivered by the Borrower, and
constitutes valid and binding obligations of the Borrower, enforceable against it in accordance
with its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors’ rights generally and by general
principles of equity.
Section 4.3. Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement (a) do not require any consent or approval of,
registration or filing with, or any action by, any Governmental Authority, except those as have
been obtained or made and are in full force and effect, (b) will not violate any Requirements of
Law applicable to the Borrower or any of its Subsidiaries or any judgment, order or ruling of any
Governmental Authority, (c) will not violate or result in a default under any indenture, agreement
or other instrument binding on the Borrower or any of its Subsidiaries or any of its assets or give
rise to a right thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries and (d) will not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.
Section 4.4. [Reserved].
Section 4.5. [Reserved].
Section 4.6. Compliance with Laws and Agreements. The Borrower and each Subsidiary is in compliance with (a) all Requirements of Law and all
judgments, decrees and orders of any Governmental Authority and (b) all indentures, agreements or
other instruments binding upon it or its properties, except where non-compliance, either singly or
in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Section 4.7. Investment Company Act, Etc. Neither the Borrower nor any of its
Subsidiaries is (a) an “investment company”
or is “controlled” by an “investment company”,
8
as such
terms are defined in, or subject to regulation under, the Investment Company Act of 1940, as
amended, or (b) otherwise subject to any other regulatory scheme limiting its ability to incur debt
or requiring any approval or consent from or registration or filing with, any Governmental
Authority in connection therewith.
Section 4.8. [Reserved].
Section 4.9. Margin Regulations. None of the proceeds of any of the Loans will be
used, directly or indirectly, for “purchasing” or “carrying” any “margin stock” with the respective
meanings of each of such terms under Regulation U or for any purpose that violates the provisions
of the Regulation T, U or X. Neither the Borrower nor its Subsidiaries is engaged principally, or
as one of its important activities, in the business of extending credit for the purpose of
purchasing or carrying “margin stock.”
Section 4.10. [Reserved].
Section 4.11. Ownership of Property.
(a) Each of the Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all of its real and personal property material to the operation of its business, including all
such properties material to the operation of the mortgage finance business operated by Xxxxxx
Mortgage Company and its Subsidiaries prior to the Merger (except as sold or otherwise disposed of
in the ordinary course of business), in each case free and clear of Liens prohibited by this
Agreement. All leases that individually or in the aggregate are material to the business or
operations of the Borrower and its Subsidiaries are valid and subsisting and are in full force.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or otherwise has the
right, to use, all patents, trademarks, service marks, trade names, copyrights and other
intellectual property related to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe in any material respect on the rights of any other Person, except
where a failure to own, license or use such intellectual property or such infringment could
not reasonably be expected to have a Material Adverse Effect.
(c) The properties of the Borrower and its Subsidiaries are insured with financially sound and
reputable insurance companies which are not Affiliates of the Borrower, in such amounts with such
deductibles and covering such risks as are customarily carried by companies engaged in similar
businesses and owning similar properties in localities where the Borrower or any applicable
Subsidiary operates, except that all REO properties may be insured with an Affiliate of the
Borrower.
(d) On the Effectiveness Date, this Agreement will be effective to create in favor of the
Lender a legal, valid and enforceable security interest in the Collateral and proceeds thereof.
When financing statements in appropriate filings are filed in the State Department of Assessment
and Taxation of the State of Maryland, and the Lender is named as additional insured on the
Reinsurance Policy, this Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Borrower in such Collateral and the proceeds
9
thereof, as security for the Obligations, in each case prior and superior in right to any other
Person.
Section 4.12. [Reserved].
Section 4.13. [Reserved].
Section 4.14. [Reserved].
Section 4.15. [Reserved].
Section 4.16. OFAC. None of the Borrower, any Subsidiary of the Borrower or any
Affiliate of the Borrower (i) is a Sanctioned Person, (ii) has more than 15% of its assets in
Sanctioned Countries, or (iii) derives more than 15% of its operating income from investments in,
or transactions with Sanctioned Persons or Sanctioned Countries. No part of the proceeds of any
Loans hereunder will be used directly or indirectly to fund any operations in, finance any
investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country
or for any payments to any governmental official or employee, political party, official of a
political party, candidate for political office, or anyone else acting in an official capacity, in
order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended.
Section 4.17. Patriot Act. Neither the Borrower nor any of its Subsidiaries is an
“enemy” or an “ally of the enemy” within the meaning of Section 2 of the Trading with the Enemy Act
of the United States of America (50 U.S.C. App. §§ 1 et seq.), as amended or any enabling
legislation or executive order relating thereto. Neither the Borrower nor any or its Subsidiaries
is in violation of (a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) or any enabling legislation or executive order relating thereto or (c) the Patriot Act.
None of the Loan Parties (i) is a blocked person described in section 1 of the Anti-Terrorism Order
or (ii) to the best of its knowledge, engages in any dealings or transactions, or is otherwise
associated, with any such blocked person.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as the Lender has a Commitment hereunder or any
Obligation remains unpaid or outstanding:
Section 5.1. Financial Statements and Other Information. As soon as available and in
any event within two Business Days after delivery thereof, the Borrower will deliver to the Lender
a copy of all documents delivered pursuant to the Syndicated Credit Agreement.
Section 5.2. Notices of Material Events. The Borrower will furnish to the Lender
prompt written notice of the following:
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(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or before any arbitrator
or Governmental Authority against or, to the knowledge of the Borrower, affecting the Borrower or
any Subsidiary which, if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) [Reserved];
(d) [Reserved];
(e) the occurrence of any default or event of default, or the receipt by Borrower or any of
its Subsidiaries of any written notice of an alleged default or event of default, with respect to
any Material Indebtedness of the Borrower or any of its Subsidiaries;
(f) any other development that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice delivered under this Section 5.2 shall be accompanied by a written statement of a
Responsible Officer setting forth the details of the event or development requiring such notice and
any action taken or proposed to be taken with respect thereto.
Section 5.3. Existence; Conduct of Business. The Borrower will, and will cause each
of its Subsidiaries to, preserve, renew and maintain in full force and effect its legal existence;
provided, that nothing in this Section 5.3 shall prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.3 of the Syndicated Credit. The Borrower will, and will cause
each of its Subsidiaries to, preserve, renew and maintain in full force and effect its respective
rights, licenses, permits, privileges, franchises, patents, copyrights, trademarks and trade names
material to the conduct of its business, the non-preservation of which could reasonably be expected
to have a Material Adverse Effect.
Section 5.4. Compliance with Laws, Etc. The Borrower will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and requirements of any Governmental
Authority applicable to its business and properties, including without limitation, all
Environmental Laws, ERISA and OSHA, except where the failure to do so, either individually or in
the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
Section 5.5. Payment of Obligations. The Borrower will, and will cause each of its
Subsidiaries to, pay and discharge as the same shall become due and payable, all of its obligations
and liabilities (including without limitation all taxes, assessments and other governmental
charges, levies and all other claims that could result in a statutory Lien) before the same shall
become delinquent or in default, except where (a) (i) the validity or amount thereof is being
contested in good faith by appropriate proceedings, and (ii) the Borrower or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with GAAP or (b) the
failure to make payment pending such contest could not reasonably be expected to result in a
Material Adverse Effect.
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Section 5.6. Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and correct entries
shall be made of all financial transactions in relation to its business and activities to the
extent necessary to prepare the consolidated financial statements of Borrower in conformity with
GAAP.
Section 5.7. Visitation, Inspection, Etc. The Borrower will, and will cause each of
its Subsidiaries to, permit any representative of the Lender, to visit and inspect its properties,
to examine its books and records and to make copies and take extracts therefrom, and to discuss its
affairs, finances and accounts with any of its officers and with its independent certified public
accountants, all at such reasonable times and as often as the Lender may reasonably request after
reasonable prior notice
to the Borrower; provided, however, if an Event of Default has occurred and is continuing, no
prior notice shall be required.
Section 5.8. Maintenance of Properties; Insurance. The Borrower will, and will cause
each of its Subsidiaries to, (a) keep and maintain all property material to the conduct of its
business in good working order and condition, ordinary wear and tear excepted, except where the
failure to do so could not reasonably be expected to result in a Material Adverse Effect, and (b)
maintain with financially sound and reputable insurance companies, insurance with respect to its
properties and business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or similar businesses
operating in the same or similar locations, including, without limitation the
Reinsurance Policy.
Section 5.9. Claims for Reinsurance Recovery. The Borrower will, and, to the extent
applicable, will cause its Subsidiaries, to file a claim for reinsurance recovery pursuant to the
Reinsurance Policy promptly Date and, in any event no later than two Business Days after the
Effectiveness Date.
ARTICLE VI
FINANCIAL COVENANTS
Section 6.1. Minimum Unencumbered Assets. The Borrower covenants and agrees that so
long as the Lender has a Commitment hereunder or any Obligation remains unpaid or outstanding, it
will maintain Unencumbered Assets with an unpaid principal balance of at least $75,000,000 at all
times.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as the Lender has a Commitment hereunder or any
Obligation remains outstanding:
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Section 7.1. Indebtedness and Preferred Equity. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness created pursuant to the Syndicated Credit Agreement; and
(b) Indebtedness allowed pursuant to Section 7.1 of the Syndicated Credit Agreement.
Section 7.2. Negative Pledge.
The Borrower will not, and will not permit any of its Subsidiaries to, create, incur, assume
or suffer to exist any Lien on any of its assets or property now owned or hereafter acquired,
except Liens allowed pursuant to Section 7.2 of the Syndicated Credit Agreement.
Section 7.3. Additional Negative Covenants.
The covenants set forth in Section 7.3 through Section 7.13 of the Syndicated Credit Agreement
shall be deemed to be a part of this Agreement as if set forth herein.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1. Events of Default. If any of the following events (each an “Event of
Default”) shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or shall fail to make when and as
the same shall become due and payable, whether at the due date thereof or at a date fixed for
prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount
(other than an amount payable under clause (a) of this Section 8.1) payable under this Agreement,
when and as the same shall become due and payable, and such failure shall continue unremedied for a
period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary in or in connection with this Agreement and any amendments or modifications hereof or
waivers hereunder, or in any certificate, report, financial statement or other document submitted
to the Lender by the Borrower or any of its representative pursuant to or in connection with this
Agreement shall prove to be incorrect in any material respect when made or deemed made or
submitted; or
(d) the Borrower shall fail to observe or perform any covenant or agreement contained in
Sections 5.2(a), 5.3 (with respect to the Borrower’s existence) or 5.10, or Articles
VI or VII; or the Borrower shall fail to observe or perform any covenant or agreement
contained in Sections 5.1 or 5.2 (excluding 5.2(a)) and such failure shall
remain unremedied for 15 days
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after the earlier of (i) any officer of the Borrower becomes aware of
such failure, or (ii) notice thereof shall have been given to the Borrower by the Lender; or
(e) the Borrower shall fail to observe or perform any covenant or agreement contained in this
Agreement (other than those referred to in clauses (a), (b) and (d) above), and such failure shall
remain unremedied for 30 days after the earlier of (i) any officer of the Borrower becomes aware of
such failure, or (ii) notice thereof shall have been given to the Borrower by the Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as guarantor or other
surety) shall fail to pay any principal of, or premium or interest on, any Material Indebtedness
that is outstanding, when and as the same shall become due and payable (whether at scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or instrument evidencing or
governing such Indebtedness; or any other event shall occur or condition shall exist under any
agreement or instrument relating to such Indebtedness and shall continue after the applicable grace
period, if any, specified in such agreement or instrument, if the effect of such event or condition
is to accelerate, or permit the acceleration of, the maturity of such Indebtedness; or any such
Indebtedness shall be declared to be due and payable, or required to be prepaid or redeemed (other
than by a regularly scheduled required prepayment or redemption), purchased or defeased, or any
offer to prepay, redeem, purchase or defease such Indebtedness shall be required to be made, in
each case prior to the stated maturity thereof; or
(g) the Borrower or any Subsidiary shall (i) commence a voluntary case or other proceeding or
file any petition seeking liquidation, reorganization or other relief under any federal, state or
foreign bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar official of it or any
substantial part of its property, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or petition described in clause (h) of this
Section 8.1, (iii) apply for or consent to the appointment of a custodian, trustee,
receiver, liquidator or other similar official for the Borrower or any such Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment for the benefit of
creditors, or (vi) take any action for the purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed
seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or any substantial part of its assets, under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (ii) the appointment of a
custodian, trustee, receiver, liquidator or other similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and in any such case, such proceeding or
petition shall remain undismissed for a period of 60 days or an order or decree approving or
ordering any of the foregoing shall be entered; or
(i) the Borrower or any Subsidiary shall become unable to pay, shall admit in writing its
inability to pay, or shall fail to pay, its debts as they become due; or
14
(j) an ERISA Event shall have occurred that, in the opinion of the Lender, when taken together
with other ERISA Events that have occurred, could reasonably be expected to result in liability to
the Borrower and the Subsidiaries in an aggregate amount exceeding $3,500,000; or
(k) any judgment or order for the payment of money in excess of $3,500,000 in the aggregate
shall be rendered against the Borrower or any Subsidiary, and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be a period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(l) any non-monetary judgment or order shall be rendered against the Borrower or any
Subsidiary that could reasonably be expected to have a Material Adverse Effect, and there shall be
a period of 30 consecutive days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist;
(n) Article IX shall cease, for any reason, to be in full force and effect, or the Borrower or
any Affiliate thereof shall so assert, or any Lien created pursuant to this Agreement shall cease
to be enforceable and of the same effect and priority purported to be created thereby; or
then, and in every such event (other than an event with respect to the Borrower described in clause
(g) or (h) of this Section 8.1) and at any time thereafter during the continuance of such
event, the Lender shall, by notice to the Borrower, take any or all of the following actions, at
the same or different times: (i) terminate the Commitments, whereupon the Commitment of the Lender
shall terminate immediately, (ii) declare the principal of and any accrued interest on the Loans,
and all other Obligations owing hereunder, to be, whereupon the same shall become, due and payable
immediately, without presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower, (iii) [Rerseved], (iv) [Reserved], and (v) exercise any other
remedies available at law or in equity; and that, if an Event of Default specified in either clause
(g) or (h) shall occur, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon, and all fees, and all other
Obligations shall automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
SECURITY PROVISIONS
Section 9.1. Grant of Security Interest. i) On the Effectiveness Date, the Borrower
assigns and transfers to the Lender, and hereby grants to the Lender as collateral security for the
prompt and complete payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of its Obligations a security interest Unencumbered Assets with an
unpaid principal balance of not less than $10,000,000 (the “Collateral”).
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(a) At any time on or after the Effectiveness Date, the Borrower hereby irrevocably authorizes
the Lender at any time and from time to time to file in any relevant jurisdiction any financing
statements to perfect the Lender’s interest or rights hereunder in the Collateral or any part
thereof and amendments thereto that (i) describe the Collateral as the Lender may reasonably
determine and (ii) contain the information required by Article 9 of the Uniform Commercial Code of
each applicable jurisdiction for the filing of any financing
statement or amendment. The Borrower agrees to provide such information to the Lender promptly
upon request.
Section 9.2. Remedies. If an Event of Default shall occur and be continuing, the
Lender may exercise, in addition to all other rights and remedies granted to them in this
Agreement and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the New York UCC or any other
applicable law. Without limiting the generality of the foregoing, the Lender, without demand of
performance or other demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon the Borrower or any other Person (all and each
of which demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, give option or options to purchase, or otherwise
dispose of and deliver the Collateral or any part thereof (or contract to do any of the foregoing),
in one or more parcels at public or private sale or sales, at any exchange, broker’s board or
office of the Lender or elsewhere upon such terms and conditions as it may deem advisable and at
such prices as it may deem best, for cash or on credit or for future delivery without assumption of
any credit risk. The Lender shall have the right upon any such public sale or sales, and, to the
extent permitted by law, upon any such private sale or sales, to purchase the whole or any part of
the Collateral so sold, free of any right or equity of redemption in the Borrower, which right or
equity is hereby waived and released. The Borrower further agrees, at the Lender’s request, to
assemble the Collateral and make it available to the Lender at places which the Lender shall
reasonably select. The Lender shall apply the net proceeds of any action taken by it pursuant to
this Section, after deducting all reasonable costs and expenses of every kind incurred in
connection therewith or incidental to the care or safekeeping of any of the Collateral or in any
way relating to the Collateral or the rights of the Lender hereunder, including, without
limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Lender may elect, and only after such application and after the
payment by the Lender of any other amount required by any provision of law, including, without
limitation, Section 9-615(a)(3) of the New York UCC, need the Lender account for the surplus, if
any, to the Borrower. To the extent permitted by applicable law, the Borrower waives all claims,
damages and demands it may acquire against the Lender arising out of the exercise by them of any
rights hereunder.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices.
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Except in the case of notices and other communications expressly permitted to be given by
telephone, all notices and other communications to any party herein to be effective shall
be in writing and shall be delivered by hand or overnight courier service, mailed by certified
or registered mail or sent by telecopy, as follows:
To the Borrower:
|
Xxxxxx Investment Management Corp. | |
0000 X. Xxx Xxxxx Xxxx. | ||
Xxxxx, Xxxxxxx 00000 | ||
Attention: Xxxxxxxx X. Xxxxx | ||
Vice President and Chief Financial Officer | ||
Telecopy Number: (000) 000-0000 | ||
To the Lender:
|
Xxxxxx Industries, Inc. | |
0000 X. Xxx Xxxxx Xxxx. | ||
Xxxxx, Xxxxxxx 00000 | ||
Attention: Miles Xxxxxxx | ||
Senior Vice President, Treasurer | ||
Telecopy Number: (000) 000-0000 |
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices and other
communications shall, when transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited into the mail or
if delivered, upon delivery; provided, that notices delivered to the Lender shall not be effective
until actually received by such Person at its address specified in this Section 10.1.
Section 10.2. Waiver; Amendments.
(a) No failure or delay by the Lender in exercising any right or power hereunder, and no
course of dealing between the Borrower and the Lender, shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power or any abandonment or discontinuance of
steps to enforce such right or power, preclude any other or further exercise thereof or the
exercise of any other right or power hereunder or thereunder. The rights and remedies of the
Lender hereunder are cumulative and are not exclusive of any rights or remedies provided by law.
No waiver of any provision of this Agreement or consent to any departure by the Borrower therefrom
shall in any event be effective unless the same shall be permitted by paragraph (b) of this
Section 10.2, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan shall not be construed as a waiver of any Default or Event of Default,
regardless of whether the Lender may have had notice or knowledge of such Default or Event of
Default at the time.
(b) No amendment or waiver of any provision of this Agreement, nor consent to any departure by
the Borrower therefrom, shall in any event be effective unless the same shall be in writing and
signed by the Borrower and the Lender and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
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Section 10.3. Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses of the Lender
and its Affiliates, in connection with the administration of this Agreement and any amendments,
modifications or waivers thereof (whether or not the transactions contemplated in this Agreement
shall be consummated), including the reasonable fees, charges and disbursements of counsel for the
Lender and its Affiliates and (ii) all out-of-pocket costs and expenses (including, without
limitation, the reasonable fees, charges and disbursements of outside counsel) incurred by the
Lender in connection with the enforcement or protection of its rights in connection with this
Agreement, including its rights under this Section 10.3, or in connection with the Loans made
hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans.
(b) The Borrower shall indemnify the Lender and each Related Party (each such Person being
called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each
Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of
any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or
by the Borrower or its Subsidiaries arising out of, in connection with, or as a result of (i) the
execution or delivery of this Agreement or any agreement or instrument contemplated hereby or
thereby, the performance by the parties hereto of their respective obligations hereunder or
thereunder or the consummation of the other transactions contemplated hereby or thereby, (ii) any
Loan or the use or proposed use of the proceeds therefrom, (iii) any actual or alleged presence or
Release of Hazardous Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrower, and regardless of whether any Indemnitee is a party
thereto, provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses are determined by a court
of competent jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or willful misconduct of such Indemnitee.
(c) [Reserved].
(d) To the extent permitted by applicable law, the Borrower shall not assert, and hereby
waives, any claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages) arising out of, in
connection with or as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, or the use of proceeds thereof.
(e) All amounts due under this Section 10.3 shall be payable promptly after written
demand therefor.
(f) For the avoidance of doubt, this Section 10.3 shall not apply to any Taxes.
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Section 10.4. Successors and Assigns.
The provisions of this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder without the prior
written consent of the Lender, and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder.
Section 10.5. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and be governed by the law of the
State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property,
to the exclusive jurisdiction of the United States District Court of the Southern District of New
York, and of Supreme Court of the State of New York sitting in New York county and any appellate
court from any thereof, in any action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New York state court
or, to the extent permitted by applicable law, such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Lender may otherwise have to bring any
action or proceeding relating to this Agreement against the Borrower or its properties in the
courts of any jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding described in paragraph
(b) of this Section 10.5 and brought in any court referred to in paragraph (b) of this
Section 10.5. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the service of process in the manner
provided for notices in Section 10.1. Nothing in this Agreement will affect the right of
any party hereto to serve process in any other manner permitted by law.
Section 10.6. WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF
19
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7. Right of Setoff. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each Lender shall have the
right, at any time or from time to time upon the occurrence and during the continuance of an Event
of Default, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, to set off and apply against all deposits
(general or special, time or demand, provisional or final) of the Borrower at any time held or
other obligations at any time owing by the Lender to or for the credit or the account of the
Borrower against any and all Obligations held by the Lender, irrespective of whether the Lender
shall have made demand hereunder and although such Obligations may be unmatured.
Section 10.8. Counterparts; Integration. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to constitute one and the
same instrument. This Agreement and any separate letter agreement(s) relating to any fees payable
to the Lender constitute the entire agreement among the parties hereto and thereto and their
affiliates regarding the subject matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters. Delivery of an executed
counterpart to this Agreement by facsimile transmission or by electronic mail in pdf form shall be
as effective as delivery of a manually executed counterpart hereof.
Section 10.9. Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments delivered in connection
with or pursuant to this Agreement shall be considered to have been relied upon by the other
parties hereto and shall survive the execution and delivery of this Agreement and the making of any
Loans, regardless of any investigation made by any such other party or on its behalf and
notwithstanding that the Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid is outstanding and so long
as the Commitments have not expired or terminated. The provisions of Sections 2.17,
2.18, 2.19, and 10.3 and Article IX shall survive and remain in
full force and effect regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports, notices, and other
documents delivered pursuant to this Agreement shall survive the execution and delivery of this,
and the making of the Loans.
Section 10.10. Severability. Any provision of this Agreement held to be illegal,
invalid or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the
extent of such illegality, invalidity or unenforceability without affecting the legality, validity
or enforceability of the remaining provisions hereof or thereof; and the illegality, invalidity or
20
unenforceability of a particular provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 10.11. Confidentiality. The Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information relating to the Borrower or any of
its Subsidiaries or any of their respective businesses, to the extent designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, other than any such information
that is available to the Lender on a nonconfidential basis prior to disclosure by the Borrower or
any of its Subsidiaries, except that such information may be disclosed (i) to any Related Party of
the Lender including without limitation accountants, legal counsel and other advisors, (ii) to the
extent required by applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority purporting to have jurisdiction
over it (including any self-regulatory authority such as the National Association of Insurance
Commissioners), (iv) to the extent that such information becomes publicly available other than as a
result of a breach of this Section 10.11, or which becomes available to the Lender or any
Related Party on a non-confidential basis from a source other than the Borrower, (v) in connection
with the exercise of any remedy hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder or thereunder, (vii) [Reserved], (viii) any rating
agency, (ix) the CUSIP Service Bureau or any similar organization, or (x) with the consent of the
Borrower. Any Person required to maintain the confidentiality of any information as provided for
in this Section 10.11 shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the confidentiality of such
information as such Person would accord its own confidential information.
Section 10.12. [Reserved].
Section 10.13. [Reserved].
Section 10.14. Patriot Act. The Lender hereby notifies the Loan Parties that pursuant to the requirements of the USA
PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Patriot Act”),
it is required to obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information that will allow the
Lender to identify the Borrower in accordance with the Patriot Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
XXXXXX INVESTMENT MANAGEMENT CORP. |
||||
By: | /s/ Xxxxxxx Xxxxxxx | |||
Name: | Xxxxxxx Xxxxxxx | |||
Title: | President | |||
XXXXXX INDUSTRIES, INC. |
||||
By: | /s/ Miles X. Xxxxxxx, III | |||
Name: | Miles X. Xxxxxxx, III | |||
Title: | Senior Vice President | |||